From 9e3d2a2368b7bbb7c14ebb618347496149d8ee68 Mon Sep 17 00:00:00 2001 From: Ralph Amissah Date: Wed, 12 Dec 2012 10:17:09 -0500 Subject: v3: markup samples, introduce branch to retain and allow for v4 samples --- data/v3/samples/_sisu/image/2bits.png | Bin 0 -> 21332 bytes data/v3/samples/_sisu/image/2bits_02_01-100.png | Bin 0 -> 16119 bytes data/v3/samples/_sisu/image/2bits_03_02-100.png | Bin 0 -> 317845 bytes data/v3/samples/_sisu/image/2bits_05_03-100.png | Bin 0 -> 338870 bytes data/v3/samples/_sisu/image/2bits_05_04-100.png | Bin 0 -> 85659 bytes data/v3/samples/_sisu/image/2bits_05_05-100.png | Bin 0 -> 149949 bytes data/v3/samples/_sisu/image/2bits_05_06-100.png | Bin 0 -> 257042 bytes data/v3/samples/_sisu/image/2bits_08_07-100.png | Bin 0 -> 72418 bytes data/v3/samples/_sisu/image/2bits_09_08-100.png | Bin 0 -> 267023 bytes data/v3/samples/_sisu/image/2bits_09_09-100.png | Bin 0 -> 20367 bytes data/v3/samples/_sisu/image/2bits_large.png | Bin 0 -> 90351 bytes 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b/data/v3/samples/_sisu/image/won_benkler_book.png differ diff --git a/data/v3/samples/_sisu/skin/dir/skin_sisu.rb b/data/v3/samples/_sisu/skin/dir/skin_sisu.rb new file mode 100644 index 0000000..bd2e2a5 --- /dev/null +++ b/data/v3/samples/_sisu/skin/dir/skin_sisu.rb @@ -0,0 +1,99 @@ +# coding: utf-8 +=begin + * Name: SiSU information Structuring Universe - Structured information, Serialized Units + * Author: Ralph@Amissah.com + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Document skin for SiSU descriptive pages, ... + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% widget + def widget_search + true + end + def widget_promo +#put s "#{__LINE__} #{__FILE__}" + #['sisu','ruby','sisu_search_libre','ruby','open_society'] + end + #% path + def path_root +#puts "#{__LINE__} #{__FILE__}" + './sisu/' # the only parameter that cannot be changed here + end + def path_rel +#puts "#{__LINE__} #{__FILE__}" + '../' + end + #% url + def url_home +#puts "#{__LINE__} #{__FILE__}" + 'http://www.jus.uio.no/sisu/' + end + def url_site # used in pdf header +#puts "#{__LINE__} #{__FILE__}" + 'http://www.jus.uio.no/sisu' + end + def url_txt # text to go with url usually stripped url +#puts "#{__LINE__} #{__FILE__}" + 'www.jus.uio.no/sisu/' + end + def url_home_url +#puts "#{__LINE__} #{__FILE__}" + '../index.html' + end + #def url_root_http + #root server path info, used in document information + #end + #% color + def color_band1 + '"#ffffff"' + end + def color_band2 + '"#ffffff"' + end + #% text + def text_hp + ' SiSU' + end + def text_home + 'SiSU' + end + #% icon + def icon_home_button + 'sisu.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}#{table_close}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}}" + end + def home_url + "\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}" + end + def home + "\\href{#{@vz.url_site}/}{Ralph Amissah}" + end + def owner_chapter + 'Document owner details' + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_2bits.rb b/data/v3/samples/_sisu/skin/doc/skin_2bits.rb new file mode 100644 index 0000000..4cee523 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_2bits.rb @@ -0,0 +1,80 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Document skin used for Free as in Freedom + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require "#{SiSU_lib}/defaults" + class Skin + #% promo + def promo_promo + ['sisu_icon','sisu','sisu_search_libre','open_society','fsf','ruby'] + end + def url_home + 'http://twobits.net' + end + def url_site # used in pdf header + 'http://twobits.net' + end + def url_txt # text to go with url usually stripped url + 'twobits.net' + end + def url_home_url + '../index.html' + end + def color_band1 + '"#faf3bc"' + #'"#faf3a6"' + #'"#efe9b2"' + end + def txt_hp + 'Two Bits' + end + def txt_home # this should be the name of the site eg. Lex Mercatoria or if you prefer to see a url the url in text form copy & ... + 'Two Bits' + end + #% icon + def icon_home_button + '2bits.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}#{table_close}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + def banner_home_guide + end + #% credits + def credits_splash + %{
***
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}}" + end + def home_url + "\\href{#{@vz.url_site}/}{www.gnu.org}" + end + def home + "\\href{#{@vz.url_site}/}{GNU - Free Software Foundation}" + end + def owner_chapter + "Document owner details" + end + end +end diff --git a/data/v3/samples/_sisu/skin/doc/skin_accelerando_stross.rb b/data/v3/samples/_sisu/skin/doc/skin_accelerando_stross.rb new file mode 100644 index 0000000..75cf6dd --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_accelerando_stross.rb @@ -0,0 +1,91 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Accelerando, Charles Stross + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% path + def path_root # the only parameter that cannot be changed here + './sisu/' + end + def path_rel + '../' + end + #% url + def url_home + 'http://www.accelerando.org' + end + def url_txt # text to go with url usually stripped url + 'www.accelerando.org' + end + #% color + def color_band1 + '"#ffffff"' + end + #% text + def text_hp + 'www.accelerando.org' + end + def text_home + 'Accelerando' + end + #% icon + def icon_home_button + 'accelerando_stross.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + #% credits + def credits_splash + %{
+The author's original pdf is available at
www.accelerando.org
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright Charles Stross © 2005
+Under a Creative Commons License,
+Attribution-NonCommercial-NoDerivs 2.0:
+* Attribution. You must attribute the work in the manner specified by the author or licensor;
+* Noncommercial. You may not use this work for commercial purposes;
+* No Derivative Works. You may not alter, transform, or build upon this work;
+* For any reuse or distribution, you must make clear to others the license terms of this work. +
+<http://creativecommons.org/licenses/by-nc-nd/2.0/>
+These SiSU presentations of Accelerando are done with the kind permission of the author Charles Stross +
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{www.accelerando.org}}" + end + def home_url + "\\href{#{@vz.url_home}}{www.accelerando.org}" + end + def home + "\\href{#{@vz.url_home}}{Accelerando}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_content.rb b/data/v3/samples/_sisu/skin/doc/skin_content.rb new file mode 100644 index 0000000..9ca3c0a --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_content.rb @@ -0,0 +1,95 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Little Brother, Cory Doctorow + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% path + def path_root # the only parameter that cannot be changed here + './sisu/' + end + def path_rel + '../' + end + #% url + def url_home + 'http://craphound.com/content' + end + def url_author + 'http://craphound.com' + end + def url_txt # text to go with url usually stripped url + 'craphound.com/content' + end + #% color + def color_band1 + '"#ffffff"' + end + #% text + def text_hp + 'craphound.com/content' + end + def text_home + 'CONTENT' + end + #% icon + def icon_home_button + 'content_doctorow.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
+

CONTENT

+

Cory Doctorow

+ #{table_close}} + end + #% credits + def credits_splash + %{
+The author's original pdf is available at
craphound.com/content
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright Cory Doctorow © 2008
+Under a Creative Commons License,
+Attribution-NonCommercial-NoDerivs 3.0:
+* Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work);
+* Noncommercial. You may not use this work for commercial purposes;
+* Share Alike - If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one. +
+<http://creativecommons.org/licenses/by-nc-sa/3.0/>
+
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{craphound.com/content}}" + end + def home_url + "\\href{#{@vz.url_home}}{craphound.com/content}" + end + def home + "\\href{#{@vz.url_home}}{CONTENT}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_di_von_hippel.rb b/data/v3/samples/_sisu/skin/doc/skin_di_von_hippel.rb new file mode 100644 index 0000000..3448e58 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_di_von_hippel.rb @@ -0,0 +1,78 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Democratizing Innovation, Eric von Hippel + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #def path_root # the only parameter that cannot be changed here + # './sisu/' + #end + #def rel + # '../' + #end + def url_home + 'http://web.mit.edu/evhippel/www/' + #'http://web.mit.edu/evhippel/www/democ1.htm' + end + def url_txt # text to go with url usually stripped url + 'web.mit.edu/evhippel/www/' + end + def color_band1 + '"#ffffff"' + end + def txt_hp + 'web.mit.edu/evhippel/www/' + end + def txt_home + 'Eric von Hippel' + end + def icon_home_button + 'di_evh.png' + end + def icon_home_banner + icon_home_button + end + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + def credits_splash + %{
+The original pdf is available online at
web.mit.edu/evhippel/www/
+
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright Eric von Hippel © 2005
+Under a Creative Commons License, License: Attribution-Noncommercial-No Derivative Works (CC-BY-NC-ND) 2.0 +http://creativecommons.org/licenses/by-nc-nd/2.0/
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{web.mit.edu/evhippel/www/}}" + end + def home_url + "\\href{#{@vz.url_home}}{web.mit.edu/evhippel/www/}" + end + def home + "\\href{#{@vz.url_home}}{Eric von Hippel}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_for_the_win.rb b/data/v3/samples/_sisu/skin/doc/skin_for_the_win.rb new file mode 100644 index 0000000..6d82e6c --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_for_the_win.rb @@ -0,0 +1,94 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Little Brother, Cory Doctorow + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% path + def path_root # the only parameter that cannot be changed here + './sisu/' + end + def path_rel + '../' + end + #% url + def url_home + 'http://craphound.com/ftw' + end + def url_author + 'http://craphound.com' + end + def url_txt # text to go with url usually stripped url + 'craphound.com/ftw' + end + #% color + def color_band1 + '"#ffffff"' + end + #% text + def text_hp + 'craphound.com/ftw' + end + def text_home + 'For The Win' + end + #% icon + def icon_home_button + 'for_the_win_doctorow.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
+

For The Win

+

Cory Doctorow

+ #{table_close}} + end + #def banner_band + # %{
#{png_home}#{table_close}} + #end + #% credits + def credits_splash + %{
+The author's original pdf is available at
craphound.com/ftw
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright Cory Doctorow © 2010
+Under a Creative Commons License,
+Attribution-NonCommercial-NoDerivs 3.0:
+<http://creativecommons.org/licenses/by-nc-sa/3.0/>
+
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{craphound.com/ftw}}" + end + def home_url + "\\href{#{@vz.url_home}}{craphound.com/ftw}" + end + def home + "\\href{#{@vz.url_home}}{For The Win}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_gnu.rb b/data/v3/samples/_sisu/skin/doc/skin_gnu.rb new file mode 100644 index 0000000..8ac3822 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_gnu.rb @@ -0,0 +1,88 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Free Software Foundation, Gnu sisu skin + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% widget + def widget_promo + # ['sisu_icon','sisu','sisu_search_libre','open_society','fsf','ruby'] + end + #% home + def home_index + end + def home_toc + end + #% path + def path_root + './sisu/' # the only parameter that cannot be changed here + end + def path_rel + '../' + end + #% url + def url_home + 'http://www.fsf.org' + end + def url_site # used in pdf header + 'http://www.fsf.org' + end + def url_txt # text to go with url usually stripped url + 'www.fsf.org' + end + def url_home_url + '../index.html' + end + # color + def color_band1 + '"#000070"' + end + #% txt + def txt_hp + 'Free Software Foundation' + end + def txt_home # this should be the name of the site eg. Lex Mercatoria or if you prefer to see a url the url in text form copy & ... + #"www.jus.uio.no/sisu/" + 'Free Software Foundation' + end + #% icon + def icon_home_button + 'philosophical_gnu.png' + end + def icon_home_banner + icion_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}#{table_close}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}}" + end + def home_url + "\\href{#{@vz.url_site}/}{www.fsf.org}" + end + def home + "\\href{#{@vz.url_site}/}{Free Software Foundation}" + end + def owner_chapter + "Document owner details" + end + end +end diff --git a/data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb b/data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb new file mode 100644 index 0000000..148fbae --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb @@ -0,0 +1,216 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Document skin sample prepared for Gutenberg Project (first used with "War and Peace") + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require "#{SiSU_lib}/defaults" + class Skin + #% path + def path_root # the only parameter that cannot be changed here + './sisu/' + end + def path_rel + '../' + end + #% url + def url_home + 'http://www.gutenberg.net' + end + def url_txt # text to go with url usually stripped url + 'www.gutenberg.net' + end + #% txt + def txt_hp + 'www.gutenberg.net' + end + def txt_home + 'Gutenberg Project' + end + #% icon + def icon_home_button + 'gutenberg.home.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents 
 
} + end + def banner_band + %{
#{png_home}#{table_close}} + end + #% credits + def credits_splash + %{
Gutenberg Project
Courtesy of The Gutenberg Project
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{www.gutenberg.net}}" + end + def home_url + "\\href{#{@vz.url_home}}{www.gutenberg.net}" + end + def home + "\\href{#{@vz.url_home}}{Gutenberg Project}" + end + def owner_chapter + "Document owner details" + end + end + class Inserts + def insert1 +< + +CONTENTS + end + end +end + diff --git a/data/v3/samples/_sisu/skin/doc/skin_lessig.rb b/data/v3/samples/_sisu/skin/doc/skin_lessig.rb new file mode 100644 index 0000000..0e2be20 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_lessig.rb @@ -0,0 +1,78 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Free Culture, Lawrence Lessig + * arch-tag: skin for an individual document set (lessig - freeculture) + * License: Same as SiSU see http://www.jus.uio.no/sisu + * $Date$ + * $Id$ + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #def path_root # the only parameter that cannot be changed here + # './sisu/' + #end + #def path_rel + # '../' + #end + #def url_hp # used by wmap, get rid of ie make it seek home instead + # 'http://www.free-culture.cc/' + #end + def url_home + 'http://www.free-culture.cc' + end + def url_txt # text to go with url usually stripped url + 'www.lessig.org' + end + #def url_root_http + #root server path info, used in document information + #end + def color_band1 + '"#000000"' + end + def txt_hp + 'www.lessig.org' + end + def txt_home + 'Lawrence Lessig' + end + def icon_home_button + 'freeculture.home.png' + end + def icon_home_banner + icon_home_button + end + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + def credits_splash + %{
Free Culture Bar Code
Available at Amazon.com
Free Culture at Amazon.com
This book is Copyright Lawrence Lessig © 2004
Under a Creative Commons License, that permits non-commercial use of this work, provided attribution is given.
See http://www.free-culture.cc/
lessig@pobox.com
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{lessig.org}}" + end + def home_url + "\\href{#{@vz.url_home}}{lessig.org}" + end + def home + "\\href{#{@vz.url_home}}{Lawrence Lessig}" + end + def owner_chapter + "Document owner details" + end + end +end diff --git a/data/v3/samples/_sisu/skin/doc/skin_little_brother.rb b/data/v3/samples/_sisu/skin/doc/skin_little_brother.rb new file mode 100644 index 0000000..751fba0 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_little_brother.rb @@ -0,0 +1,89 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Little Brother, Cory Doctorow + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% path + def path_root # the only parameter that cannot be changed here + './sisu/' + end + def path_rel + '../' + end + #% url + def url_home + 'http://craphound.com/littlebrother' + end + def url_txt # text to go with url usually stripped url + 'craphound.com/littlebrother' + end + #% color + def color_band1 + '"#ffffff"' + end + #% text + def text_hp + 'craphound.com/littlebrother' + end + def text_home + 'Little Brother' + end + #% icon + def icon_home_button + 'little_brother_doctorow.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + #% credits + def credits_splash + %{
+The author's original pdf is available at
craphound.com/littlebrother
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright Cory Doctorow © 2008
+Under a Creative Commons License,
+Attribution-NonCommercial-NoDerivs 3.0:
+* Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work);
+* Noncommercial. You may not use this work for commercial purposes;
+* Share Alike - If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one. +
+<http://creativecommons.org/licenses/by-nc-sa/3.0/>
+
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{craphound.com/littlebrother}}" + end + def home_url + "\\href{#{@vz.url_home}}{craphound.com/littlebrother}" + end + def home + "\\href{#{@vz.url_home}}{Little Brother}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_magic_kingdom.rb b/data/v3/samples/_sisu/skin/doc/skin_magic_kingdom.rb new file mode 100644 index 0000000..b000239 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_magic_kingdom.rb @@ -0,0 +1,94 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Little Brother, Cory Doctorow + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% path + def path_root # the only parameter that cannot be changed here + './sisu/' + end + def path_rel + '../' + end + #% url + def url_home + 'http://craphound.com/down' + end + def url_author + 'http://craphound.com' + end + def url_txt # text to go with url usually stripped url + 'craphound.com/down' + end + #% color + def color_band1 + '"#ffffff"' + end + #% text + def text_hp + 'craphound.com/down' + end + def text_home + 'Down and Out in the Magic Kingdom' + end + #% icon + def icon_home_button + 'magic_kingdom_doctorow.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
+

Down and Out in the Magic Kingdom

+

Cory Doctorow

+ #{table_close}} + end + #def banner_band + # %{
#{png_home}#{table_close}} + #end + #% credits + def credits_splash + %{
+The author's original pdf is available at
craphound.com/down
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright Cory Doctorow © 2003
+Under a Creative Commons License,
+Attribution-NonCommercial-ShareAlike 1.0
+<http://creativecommons.org/licenses/by-nc-sa/1.0/>
+
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{craphound.com/down}}" + end + def home_url + "\\href{#{@vz.url_home}}{craphound.com/down}" + end + def home + "\\href{#{@vz.url_home}}{Down and Out in the Magic Kingdom}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_rms.rb b/data/v3/samples/_sisu/skin/doc/skin_rms.rb new file mode 100644 index 0000000..0f3e7d3 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_rms.rb @@ -0,0 +1,101 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Document skin used for Free as in Freedom + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require "#{SiSU_lib}/defaults" + class Skin + #% promo + def promo_promo + ['sisu_icon','sisu','sisu_search_libre','open_society','fsf','ruby'] + end + ##% home + #def home_index + #end + #def home_toc + #end + ##% path + #def path_root # the only parameter that cannot be changed here + # './sisu/' + #end + #def path_rel + # '../' + #end + #% url + def url_home + 'http://www.gnu.org' + end + def url_site # used in pdf header + 'http://www.gnu.org' + end + def url_txt # text to go with url usually stripped url + 'www.gnu.org' + end + def url_home_url + '../index.html' + end + #def url_root_http + #root server path info, used in document information + #end + #% color + def color_band1 + '"#cccccc"' + #'"#000070"' + end + #% txt + def txt_hp + 'Free as in Freedom' + end + def txt_home # this should be the name of the site eg. Lex Mercatoria or if you prefer to see a url the url in text form copy & ... + #"www.jus.uio.no/sisu/" + 'Free as in Freedom' + end + #% icon + def icon_home_button + 'free_as_in_freedom.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}#{table_close}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + def banner_home_guide + end + #% credits + def insert_levitating_gnu #used locally this skin only + %{
RMS/FSF - Levitating Gnu -->
} + end + def credits_splash + %{
#{insert_levitating_gnu}
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}}" + end + def home_url + "\\href{#{@vz.url_site}/}{www.gnu.org}" + end + def home + "\\href{#{@vz.url_site}/}{GNU - Free Software Foundation}" + end + def owner_chapter + "Document owner details" + end + end +end diff --git a/data/v3/samples/_sisu/skin/doc/skin_rms2.rb b/data/v3/samples/_sisu/skin/doc/skin_rms2.rb new file mode 100644 index 0000000..c97c5b8 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_rms2.rb @@ -0,0 +1,106 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Document skin used for Free as in Freedom + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require "#{SiSU_lib}/defaults" + class Skin + #% promo + def promo_promo + ['sisu_icon','sisu','sisu_search_libre','open_society','fsf','ruby'] + end + ##% home + #def home_index + #end + #def home_toc + #end + ##% path + #def path_root # the only parameter that cannot be changed here + # './sisu/' + #end + #def path_rel + # '../' + #end + #% url + def url_home + 'http://www.fsf.org' + end + def url_site # used in pdf header + 'http://www.fsf.org' + end + def url_txt # text to go with url usually stripped url + 'www.fsf.org' + end + def url_home_url + '../index.html' + end + #def url_root_http + #root server path info, used in document information + #end + #% color + def color_band1 + '"#cccccc"' + #'"#000070"' + end + #% txt + def txt_hp + 'Free as in Freedom' + end + def txt_home # this should be the name of the site eg. Lex Mercatoria or if you prefer to see a url the url in text form copy & ... + #"www.jus.uio.no/sisu/" + 'Free as in Freedom' + end + #% icon + def icon_home_button + 'free_as_in_freedom.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}#{table_close}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
+

Free as in Freedom

+

Richard Stallman and the Free Software Revolution

+

Sam Williams

+

Richard M. Stallman

+ #{table_close}} + end + def banner_home_guide + end + #% credits + def insert_levitating_gnu #used locally this skin only + %{
RMS/FSF - Levitating Gnu -->
} + end + def credits_splash + %{
#{insert_levitating_gnu}
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}}" + end + def home_url + "\\href{#{@vz.url_site}/}{www.gnu.org}" + end + def home + "\\href{#{@vz.url_site}/}{GNU - Free Software Foundation}" + end + def owner_chapter + "Document owner details" + end + end +end diff --git a/data/v3/samples/_sisu/skin/doc/skin_vs_david_bollier.rb b/data/v3/samples/_sisu/skin/doc/skin_vs_david_bollier.rb new file mode 100644 index 0000000..d357797 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_vs_david_bollier.rb @@ -0,0 +1,77 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for Viral Spiral, David Bollier + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + def url_home + 'http://viralspiral.cc/' + end + def url_txt # text to go with url usually stripped url + 'viralspiral.cc' + end + def url_author + 'http://www.bollier.org/' + end + def color_band1 + '"#ffffff"' + end + def txt_hp + 'viralspiral.cc' + end + def txt_home + 'David Bollier' + end + def icon_home_button + '' + end + def icon_home_banner + icon_home_button + end + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
+

Viral Spiral

+

David Bollier

+ #{table_close}} + end + def credits_splash + %{
+Viral Spiral, David Bollier
+The original pdf is available online at
#{url_txt}
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright David Bollier © 2008
+Under a Creative Commons License, License: Attribution-Noncommercial Works (CC-BY-NC) 3.0 +http://creativecommons.org/licenses/by-nc/3.0/
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{#{@vz.url_txt}}}" + end + def home_url + "\\href{#{@vz.url_home}}{#{@vz.url_txt}}" + end + def home + "\\href{#{@vz.url_home}}{David Bollier}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_wayner.rb b/data/v3/samples/_sisu/skin/doc/skin_wayner.rb new file mode 100644 index 0000000..cfc761e --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_wayner.rb @@ -0,0 +1,95 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Document skin for "Free For All" + * arch-tag: skin for an individual document set (wayner) + * License: Same as SiSU see http://www.jus.uio.no/sisu + * $Date$ + * $Id$ + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require "#{SiSU_lib}/defaults" + class Skin + #% path + def path_root # the only parameter that cannot be changed here + './sisu/' + end + def path_rel + '../' + end + #% url + #def url_hp # used by wmap, get rid of ie make it seek home instead + # 'http://www.wayner.org/books/ffa/' + #end + def url_home + 'http://www.wayner.org/books/ffa/' + end + def url_txt # text to go with url usually stripped url + 'www.wayner.org' + end + #def url_root_http + #root server path info, used in document information + #end + #% color + def color_band1 + '"#000070"' + end + #% txt + def txt_hp + 'www.wayner.org' + end + def txt_home + 'Peter Wayner' + end + #% icon + def icon_home_button + 'wayner.home.png' + end + def icon_home_banner + icon_home_button + end + def icon_next + 'arrow_next_blue.png' + end + def icon_previous + 'arrow_prev_blue.png' + end + def icon_up + 'arrow_up_blue.png' + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents 
 
} + end + def banner_band + %{
#{png_home}#{table_close}} + end + #% credits + def credits_splash + %{
Available at Amazon.com
Free For All at Amazon.com
This book is Copyright © 2000 by Peter Wayner.
See http://www.wayner.org/books/ffa/
p3@wayner.org
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{www.wayner.org}}" + end + def home_url + "\\href{#{@vz.url_home}}{www.wayner.org}" + end + def home + "\\href{#{@vz.url_home}}{Peter Wayner}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/doc/skin_won_benkler.rb b/data/v3/samples/_sisu/skin/doc/skin_won_benkler.rb new file mode 100644 index 0000000..f883045 --- /dev/null +++ b/data/v3/samples/_sisu/skin/doc/skin_won_benkler.rb @@ -0,0 +1,78 @@ +# coding: utf-8 +=begin + * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units + * Author: Ralph Amissah + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Skin prepared for The Wealth of Networks, Yochai Benkler + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #def path_root # the only parameter that cannot be changed here + # './sisu/' + #end + #def rel + # '../' + #end + def url_home + 'http://cyber.law.harvard.edu/wealth_of_networks/Main_Page' + #'http://www.benkler.org' + end + def url_txt # text to go with url usually stripped url + 'www.benkler.org' + end + def color_band1 + '"#ffffff"' + end + def txt_hp + 'www.benkler.org' + end + def txt_home + 'Yochai Benkler' + end + def icon_home_button + 'won_benkler.png' + end + def icon_home_banner + icon_home_button + end + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + def credits_splash + %{
+The original pdf is available online at
www.benkler.org
+available at Amazon.com
+available at
Amazon.com and
+Barnes & Noble
+This book is Copyright Yochai Benkler © 2006
+Under a Creative Commons License, that permits non-commercial use of this work, provided attribution is given.
+http://creativecommons.org/licenses/by-nc-sa/2.5/
} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_home}}{www.benkler.org}}" + end + def home_url + "\\href{#{@vz.url_home}}{www.benkler.org}" + end + def home + "\\href{#{@vz.url_home}}{Yochai Benkler}" + end + def owner_chapter + "Document owner details" + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/site/skin_sisu.rb b/data/v3/samples/_sisu/skin/site/skin_sisu.rb new file mode 100644 index 0000000..bd2e2a5 --- /dev/null +++ b/data/v3/samples/_sisu/skin/site/skin_sisu.rb @@ -0,0 +1,99 @@ +# coding: utf-8 +=begin + * Name: SiSU information Structuring Universe - Structured information, Serialized Units + * Author: Ralph@Amissah.com + * http://www.jus.uio.no/sisu + * http://www.jus.uio.no/sisu/SiSU/download + * Description: Document skin for SiSU descriptive pages, ... + * License: Same as SiSU see http://www.jus.uio.no/sisu + * Notes: Site default appearance variables set in defaults.rb + Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb +=end +module SiSU_Viz + require SiSU_lib + '/defaults' + class Skin + #% widget + def widget_search + true + end + def widget_promo +#put s "#{__LINE__} #{__FILE__}" + #['sisu','ruby','sisu_search_libre','ruby','open_society'] + end + #% path + def path_root +#puts "#{__LINE__} #{__FILE__}" + './sisu/' # the only parameter that cannot be changed here + end + def path_rel +#puts "#{__LINE__} #{__FILE__}" + '../' + end + #% url + def url_home +#puts "#{__LINE__} #{__FILE__}" + 'http://www.jus.uio.no/sisu/' + end + def url_site # used in pdf header +#puts "#{__LINE__} #{__FILE__}" + 'http://www.jus.uio.no/sisu' + end + def url_txt # text to go with url usually stripped url +#puts "#{__LINE__} #{__FILE__}" + 'www.jus.uio.no/sisu/' + end + def url_home_url +#puts "#{__LINE__} #{__FILE__}" + '../index.html' + end + #def url_root_http + #root server path info, used in document information + #end + #% color + def color_band1 + '"#ffffff"' + end + def color_band2 + '"#ffffff"' + end + #% text + def text_hp + ' SiSU' + end + def text_home + 'SiSU' + end + #% icon + def icon_home_button + 'sisu.png' + end + def icon_home_banner + icon_home_button + end + #% banner + def banner_home_button + %{
#{png_home}
\n} + end + def banner_home_and_index_buttons + %{
#{png_home}#{table_close}
 This text sub- 
 Table of Contents #{table_close}		 #{table_close}} + end + def banner_band + %{
#{png_home}#{table_close}} + end + end + class TeX + def header_center + "\\chead{\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}}" + end + def home_url + "\\href{#{@vz.url_site}/}{www.jus.uio.no/sisu/}" + end + def home + "\\href{#{@vz.url_site}/}{Ralph Amissah}" + end + def owner_chapter + 'Document owner details' + end + end +end +__END__ diff --git a/data/v3/samples/_sisu/skin/yml/list.yml b/data/v3/samples/_sisu/skin/yml/list.yml new file mode 100644 index 0000000..e02a153 --- /dev/null +++ b/data/v3/samples/_sisu/skin/yml/list.yml @@ -0,0 +1,32 @@ +sisu: + site: + - sisu +open_society: + site: + - vs + - twon + - fc + - content + - di + - faif + - twobits + - ffa + - catb + - littlebrother + - magickingdom + - ftw +sisu_icon: + site: + - sisu_icon +ruby: + site: + - ruby_logo +fsf: + site: + - fsf +gpl: + site: + - gpl +sisu_search_libre: + search: + - sisu_books_libre_sisusearch diff --git a/data/v3/samples/_sisu/skin/yml/promo.yml b/data/v3/samples/_sisu/skin/yml/promo.yml new file mode 100644 index 0000000..a52f874 --- /dev/null +++ b/data/v3/samples/_sisu/skin/yml/promo.yml @@ -0,0 +1,239 @@ +# Author: ralph@amissah.com +site: + sisu_icon: + url: SiSU + image: sisu.png + blurb: ~ + sisu: + title: SiSU + url: index.html + blurb: ~ + links: + - + title: What does SiSU do? Summary + url: SiSU/1.html#summary + - + title: SiSU Book Samples and Markup Examples + url: SiSU/examples.html + - + title: Manual + url: http://sisudoc.org/sisu/sisu_manual/ + - + title: Markup + url: http://sisudoc.org/sisu/sisu_markup/ + - + title: Commands + url: http://sisudoc.org/sisu/sisu_commands/ + - + title: SiSU Download + url: SiSU/download.html + - + title: SiSU Changelog + url: SiSU/changelog.html + blurb: ~ + - + title: output by Author + url: sisu_site_metadata/harvest_authors.html + - + title: output by Topic + url: sisu_site_metadata/harvest_topics.html + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/SiSU + blurb: ~ + - + title: Freshmeat + url: http://freshmeat.net/projects/sisu/ + - + title: Ruby Application Archive + url: http://raa.ruby-lang.org/project/sisu/ + vs: + title: Viral Spiral + subtitle: How the Commoners Built a Digital Republic of Their Own + author: David Bollier + year: 2009 + url: viral_spiral.david_bollier + links: + - + title: Source Wiki + url: http://viralspiral.cc/ + twon: + title: The Wealth of Networks + subtitle: How Social Production Transforms Markets and Freedom + author: Yochai Benkler + year: 2006 + url: the_wealth_of_networks.yochai_benkler + links: + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/The_Wealth_of_Networks + - + title: Source Wiki + url: http://www.benkler.org/wealth_of_networks/index.php/Main_Page + fc: + title: Free Culture + subtitle: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity + author: Lawrence Lessig + year: 2004 + url: free_culture.lawrence_lessig + links: + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Free_Culture_%28book%29 + - + title: Creative Commons + url: http://creativecommons.org/ + - + title: Source + url: http://www.free-culture.cc/ + di: + title: Democratizing Innovation + author: Eric von Hippel + year: 2005 + url: democratizing_innovation.eric_von_hippel + links: + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Democratizing_Innovation + - + title: Source + url: http://web.mit.edu/evhippel/www/democ1.htm + faif: + title: Free As In Freedom + subtitle: Richard Stallman's Crusade for Free Software + author: Sam Williams + year: 2002 + url: free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + links: + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Free_as_in_Freedom:_Richard_Stallman%27s_Crusade_for_Free_Software + - + title: Source + url: http://faifzilla.org/ + - + title: FSF + url: http://www.fsf.org/ + - + title: FSF Wikipedia + url: http://en.wikipedia.org/wiki/Free_Software_Foundation + - + title: GPL + url: http://www.gnu.org/copyleft/gpl.html + - + title: GPL Wikipedia + url: http://en.wikipedia.org/wiki/GNU_General_Public_License + twobits: + title: Two Bits + subtitle: The Cultural Significance of Free Software + author: Christopher Kelty + year: 2008 + url: two_bits.christopher_kelty + links: + - + title: Home + url: http://twobits.net + ffa: + title: Free For All + subtitle: How Linux and the Free Software Movement Undercut the High Tech Titans + author: Peter Wayner + year: 2002 + url: free_for_all.peter_wayner + links: + - + title: Source + url: http://www.wayner.org/books/ffa/ + catb: + title: The Cathedral & the Bazaar + subtitle: Musings on Linux and Open Source by an Accidental Revolutionary + author: Erik S. Raymond + year: 1999 + url: the_cathedral_and_the_bazaar.eric_s_raymond + links: + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Cathedral_and_the_bazaar + - + title: Source + url: http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ + fsf: + title: Free Software Foundation + subtitle: FSF + url: http://www.fsf.org/ + links: + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Free_Software_Foundation + - + title: GPL + subtitle: GNU General Public License + url: http://www.gnu.org/copyleft/gpl.html + gpl: + title: GNU General Public License + subtitle: GPL + url: http://www.gnu.org/copyleft/gpl.html + links: + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/GNU_General_Public_License + - + title: GPL 3 + url: http://gplv3.fsf.org/ + - + title: Software License List + url: http://www.fsf.org/licensing/licenses/ + content: + title: CONTENT + subtitle: Selected Essays on Technology, Creativity, Copyright and the Future of the Future + author: Cory Doctorow + year: 2008 + url: content.cory_doctorow + links: + - + title: Home + url: http://craphound.com/content + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Cory_Doctorow + magickingdom: + title: Down and Out in the Magic Kingdom + author: Cory Doctorow + year: 2003 + url: down_and_out_in_the_magic_kingdom.cory_doctorow + links: + - + title: Home + url: http://craphound.com/down + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Down_and_Out_in_the_Magic_Kingdom + littlebrother: + title: Little Brother + author: Cory Doctorow + year: 2008 + url: little_brother.cory_doctorow + links: + - + title: Home + url: http://craphound.com/littlebrother + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/Little_Brother_(Cory_Doctorow_novel) + ftw: + title: For the Win + author: Cory Doctorow + year: 2008 + url: for_the_win.cory_doctorow + links: + - + title: Home + url: http://craphound.com/ftw + - + title: Wikipedia entry + url: http://en.wikipedia.org/wiki/For_The_Win_(Cory_Doctorow_novel) +search: + sisu_books_libre_sisusearch: + type: sisusearch + action: http://search.sisudoc.org + target: _top + db: sisu diff --git a/data/v3/samples/accelerando.charles_stross.sst b/data/v3/samples/accelerando.charles_stross.sst new file mode 100644 index 0000000..24eabd8 --- /dev/null +++ b/data/v3/samples/accelerando.charles_stross.sst @@ -0,0 +1,5825 @@ +% SiSU 2.0 + +@title: Accelerando + +@creator: + :author: Stross, Charles + +@rights: + :copyright: Copyright (C) Charles Stross, 2005. + :license: Creative Commons License, Attribution-NonCommercial-NoDerivs 2.0: * Attribution. You must attribute the work in the manner specified by the author or licensor; * Noncommercial. You may not use this work for commercial purposes; * No Derivative Works. You may not alter, transform, or build upon this work; * For any reuse or distribution, you must make clear to others the license terms of this work. (* For any reuse or distribution, you must make clear to others the license terms of this work. * Any of these conditions can be waived if you get permission from the copyright holder.) http://creativecommons.org/licenses/by-nc-nd/2.0/ These SiSU presentations of Accelerando are done with the kind permission of the author Charles Stross + +@source: http://www.accelerando.org/ + +@classify: + :subject: Science Fiction + :topic_register: SiSU:markup sample:book;book:novel:science fiction|short stories;fiction:science fiction|artificial intelligence + :type: science fiction + :oclc: 57682282 + :isbn: 9780441012848 + +@date: + :published: 2005-07-05 + :available: 2005-07-05 + +@make: + :headings: none; none; PART; Chapter; + :skin: skin_accelerando_stross + :breaks: new=:A,:B; break=:C,1 + +@links: + { Accelerando home }http://www.accelerando.org/ + { Accelerando, Charlie Stross @ SiSU }http://www.jus.uio.no/sisu/accelerando.charlie_stross + { @ Wikipedia }http://en.wikipedia.org/wiki/Accelerando_%28novel%29 + { Syntax }http://www.jus.uio.no/sisu/sample/syntax/accelerando.charles_stross.sst.html + {@ Amazon.com}http://www.amazon.com/gp/product/0441014151 + {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0441014151 + {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow + { Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + { Free Culture, Lawrence Lessig @ SiSU }http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + { The Wealth of Networks, Yochai Benkler @ SiSU }http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + { Viral Spiral, David Bollier@ SiSU }http://www.jus.uio.no/sisu/viral_spiral.david_bollier + { Democratizing Innovation, Eric von Hippel @ SiSU }http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + { Two Bits, Christopher Kelty @ SiSU }http://www.jus.uio.no/sisu/two_bits.christopher_kelty + { Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU }http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + +% book cover shot (US) book cover shot (UK) + +% http://www.accelerando.org/_static/accelerando.html + +:A~ @title @author + +1~dedication Dedication + +For Feòrag, with love + +1~acknowledgements Acknowledgements + +This book took me five years to write - a personal record - and would not exist without the support and encouragement of a host of friends, and several friendly editors. Among the many people who read and commented on the early drafts are: Andrew J. Wilson, Stef Pearson, Gav Inglis, Andrew Ferguson, Jack Deighton, Jane McKie, Hannu Rajaniemi, Martin Page, Stephen Christian, Simon Bisson, Paul Fraser, Dave Clements, Ken MacLeod, Damien Broderick, Damon Sicore, Cory Doctorow, Emmet O'Brien, Andrew Ducker, Warren Ellis, and Peter Hollo. (If your name isn't on this list, blame my memory - my neural prostheses are off-line.) + +I mentioned several friendly editors earlier: I relied on the talented midwifery of Gardner Dozois, who edited Asimov's Science Fiction Magazine at the time, and Sheila Williams, who quietly and diligently kept the wheels rolling. My agent Caitlin Blasdell had a hand in it too, and I'd like to thank my editors Ginjer Buchanan at Ace and Tim Holman at Orbit for their helpful comments and advice. + +Finally, I'd like to thank everyone who e-mailed me to ask when the book was coming, or who voted for the stories that were shortlisted for awards. You did a great job of keeping me focused, even during the periods when the whole project was too daunting to contemplate. + +1~history Publication History + +Portions of this book originally appeared in Asimov's SF Magazine as follows: "Lobsters" (June 2001), "Troubadour" (Oct/Nov 2001), "Tourist" (Feb 2002), "Halo" (June 2002), "Router" (Sept 2002), "Nightfall" (April 2003), "Curator" (Dec 2003), "Elector" (Oct/Nov 2004), "Survivor" (Dec 2004). + +[Accelerando was published by Ace Books on July 5, 2005] ~# + +PART 1: Slow Takeoff + +"The question of whether a computer can think is no more interesting than the question of whether a submarine can swim." + +- Edsger W. Dijkstra + +Chapter 1: Lobsters + +Manfred's on the road again, making strangers rich. + +It's a hot summer Tuesday, and he's standing in the plaza in front of the Centraal Station with his eyeballs powered up and the sunlight jangling off the canal, motor scooters and kamikaze cyclists whizzing past and tourists chattering on every side. The square smells of water and dirt and hot metal and the fart-laden exhaust fumes of cold catalytic converters; the bells of trams ding in the background, and birds flock overhead. He glances up and grabs a pigeon, crops the shot, and squirts it at his weblog to show he's arrived. The bandwidth is good here, he realizes; and it's not just the bandwidth, it's the whole scene. Amsterdam is making him feel wanted already, even though he's fresh off the train from Schiphol: He's infected with the dynamic optimism of another time zone, another city. If the mood holds, someone out there is going to become very rich indeed. + +He wonders who it's going to be. + +* * * + +Manfred sits on a stool out in the car park at the Brouwerij 't IJ, watching the articulated buses go by and drinking a third of a liter of lip-curlingly sour /{gueuze}/. His channels are jabbering away in a corner of his head-up display, throwing compressed infobursts of filtered press releases at him. They compete for his attention, bickering and rudely waving in front of the scenery. A couple of punks - maybe local, but more likely drifters lured to Amsterdam by the magnetic field of tolerance the Dutch beam across Europe like a pulsar - are laughing and chatting by a couple of battered mopeds in the far corner. A tourist boat putters by in the canal; the sails of the huge windmill overhead cast long, cool shadows across the road. The windmill is a machine for lifting water, turning wind power into dry land: trading energy for space, sixteenth-century style. Manfred is waiting for an invite to a party where he's going to meet a man he can talk to about trading energy for space, twenty-first-century style, and forget about his personal problems. + +He's ignoring the instant messenger boxes, enjoying some low-bandwidth, high-sensation time with his beer and the pigeons, when a woman walks up to him, and says his name: "Manfred Macx?" + +He glances up. The courier is an Effective Cyclist, all wind-burned smooth-running muscles clad in a paean to polymer technology: electric blue lycra and wasp yellow carbonate with a light speckling of anti collision LEDs and tight-packed air bags. She holds out a box for him. He pauses a moment, struck by the degree to which she resembles Pam, his ex-fiance. + +"I'm Macx," he says, waving the back of his left wrist under her bar-code reader. "Who's it from?" + +"FedEx." The voice isn't Pam's. She dumps the box in his lap, then she's back over the low wall and onto her bicycle with her phone already chirping, disappearing in a cloud of spread-spectrum emissions. + +Manfred turns the box over in his hands: it's a disposable supermarket phone, paid for in cash - cheap, untraceable, and efficient. It can even do conference calls, which makes it the tool of choice for spooks and grifters everywhere. + +The box rings. Manfred rips the cover open and pulls out the phone, mildly annoyed. "Yes? Who is this?" + +The voice at the other end has a heavy Russian accent, almost a parody in this decade of cheap on-line translation services. "Manfred. Am please to meet you. Wish to personalize interface, make friends, no? Have much to offer." + +"Who are you?" Manfred repeats suspiciously. + +"Am organization formerly known as KGB dot RU." + +"I think your translator's broken." He holds the phone to his ear carefully, as if it's made of smoke-thin aerogel, tenuous as the sanity of the being on the other end of the line. + +"Nyet - no, sorry. Am apologize for we not use commercial translation software. Interpreters are ideologically suspect, mostly have capitalist semiotics and pay-per-use APIs. Must implement English more better, yes?" + +Manfred drains his beer glass, sets it down, stands up, and begins to walk along the main road, phone glued to the side of his head. He wraps his throat mike around the cheap black plastic casing, pipes the input to a simple listener process. "Are you saying you taught yourself the language just so you could talk to me?" + +"Da, was easy: Spawn billion-node neural network, and download Teletubbies and Sesame Street at maximum speed. Pardon excuse entropy overlay of bad grammar: Am afraid of digital fingerprints steganographically masked into my-our tutorials." + +Manfred pauses in mid stride, narrowly avoids being mown down by a GPS-guided roller blader. This is getting weird enough to trip his weird-out meter, and that takes some doing. Manfred's whole life is lived on the bleeding edge of strangeness, fifteen minutes into everyone else's future, and he's normally in complete control - but at times like this he gets a frisson of fear, a sense that he might just have missed the correct turn on reality's approach road. "Uh, I'm not sure I got that. Let me get this straight, you claim to be some kind of AI, working for KGB dot RU, and you're afraid of a copyright infringement lawsuit over your translator semiotics?" + +"Am have been badly burned by viral end-user license agreements. Have no desire to experiment with patent shell companies held by Chechen infoterrorists. You are human, you must not worry cereal company repossess your small intestine because digest unlicensed food with it, right? Manfred, you must help me-we. Am wishing to defect." + +Manfred stops dead in the street. "Oh man, you've got the wrong free enterprise broker here. I don't work for the government. I'm strictly private." A rogue advertisement sneaks through his junkbuster proxy and spams glowing fifties kitsch across his navigation window - which is blinking - for a moment before a phage process kills it and spawns a new filter. He leans against a shop front, massaging his forehead and eyeballing a display of antique brass doorknockers. "Have you tried the State Department?" + +"Why bother? State Department am enemy of Novy-SSR. State Department is not help us." + +This is getting just too bizarre. Manfred's never been too clear on new-old old-new European metapolitics: Just dodging the crumbling bureaucracy of his old-old American heritage gives him headaches. "Well, if you hadn't shafted them during the late noughties ... " Manfred taps his left heel on the pavement, looking round for a way out of this conversation. A camera winks at him from atop a streetlight; he waves, wondering idly if it's the KGB or the traffic police. He is waiting for directions to the party, which should arrive within the next half hour, and this Cold War retread Eliza-bot is bumming him out. "Look, I don't deal with the G-men. I /{hate}/ the military-industrial complex. I hate traditional politics. They're all zero-sum cannibals." A thought occurs to him. "If survival is what you're after, you could post your state vector on one of the p2p nets: Then nobody could delete you -" + +"Nyet!" The artificial intelligence sounds as alarmed as it's possible to sound over a VoiP link. "Am not open source! Not want lose autonomy!" + +"Then we probably have nothing to talk about." Manfred punches the hang-up button and throws the mobile phone out into a canal. It hits the water, and there's a pop of deflagrating lithium cells. "Fucking Cold War hangover losers," he swears under his breath, quite angry, partly at himself for losing his cool and partly at the harassing entity behind the anonymous phone call. "/{Fucking}/ capitalist spooks." Russia has been back under the thumb of the apparatchiks for fifteen years now, its brief flirtation with anarchocapitalism replaced by Brezhnevite dirigisme and Putinesque puritanism, and it's no surprise that the wall's crumbling - but it looks like they haven't learned anything from the current woes afflicting the United States. The neocommies still think in terms of dollars and paranoia. Manfred is so angry that he wants to make someone rich, just to thumb his nose at the would-be defector: /{See! You get ahead by giving! Get with the program! Only the generous survive!}/ But the KGB won't get the message. He's dealt with old-time commie weak-AIs before, minds raised on Marxist dialectic and Austrian School economics: They're so thoroughly hypnotized by the short-term victory of global capitalism that they can't surf the new paradigm, look to the longer term. + +Manfred walks on, hands in pockets, brooding. He wonders what he's going to patent next. + +* * * + +_1 Manfred has a suite at the Hotel Jan Luyken paid for by a grateful multinational consumer protection group, and an unlimited public transport pass paid for by a Scottish sambapunk band in return for services rendered. He has airline employee's travel rights with six flag carriers despite never having worked for an airline. His bush jacket has sixty-four compact supercomputing clusters sewn into it, four per pocket, courtesy of an invisible college that wants to grow up to be the next Media Lab. His dumb clothing comes made to measure from an e-tailor in the Philippines he's never met. Law firms handle his patent applications on a pro bono basis, and boy, does he patent a lot - although he always signs the rights over to the Free Intellect Foundation, as contributions to their obligation-free infrastructure project. + +_1 In IP geek circles, Manfred is legendary; he's the guy who patented the business practice of moving your e-business somewhere with a slack intellectual property regime in order to evade licensing encumbrances. He's the guy who patented using genetic algorithms to patent everything they can permutate from an initial description of a problem domain - not just a better mousetrap, but the set of all possible better mousetraps. Roughly a third of his inventions are legal, a third are illegal, and the remainder are legal but will become illegal as soon as the legislatosaurus wakes up, smells the coffee, and panics. There are patent attorneys in Reno who swear that Manfred Macx is a pseudo, a net alias fronting for a bunch of crazed anonymous hackers armed with the Genetic Algorithm That Ate Calcutta: a kind of Serdar Argic of intellectual property, or maybe another Bourbaki math borg. There are lawyers in San Diego and Redmond who swear blind that Macx is an economic saboteur bent on wrecking the underpinning of capitalism, and there are communists in Prague who think he's the bastard spawn of Bill Gates by way of the Pope. + +_1 Manfred is at the peak of his profession, which is essentially coming up with whacky but workable ideas and giving them to people who will make fortunes with them. He does this for free, gratis. In return, he has virtual immunity from the tyranny of cash; money is a symptom of poverty, after all, and Manfred never has to pay for anything. + +_1 There are drawbacks, however. Being a pronoiac meme-broker is a constant burn of future shock - he has to assimilate more than a megabyte of text and several gigs of AV content every day just to stay current. The Internal Revenue Service is investigating him continuously because it doesn't believe his lifestyle can exist without racketeering. And then there are the items that no money can't buy: like the respect of his parents. He hasn't spoken to them for three years, his father thinks he's a hippy scrounger, and his mother still hasn't forgiven him for dropping out of his down-market Harvard emulation course. (They're still locked in the boringly bourgeois twen-cen paradigm of college-career-kids.) His fiance and sometime dominatrix Pamela threw him over six months ago, for reasons he has never been quite clear on. (Ironically, she's a headhunter for the IRS, jetting all over the place at public expense, trying to persuade entrepreneurs who've gone global to pay taxes for the good of the Treasury Department.) To cap it all, the Southern Baptist Conventions have denounced him as a minion of Satan on all their websites. Which would be funny because, as a born-again atheist Manfred doesn't believe in Satan, if it wasn't for the dead kittens that someone keeps mailing him. + +* * * + +Manfred drops in at his hotel suite, unpacks his Aineko, plugs in a fresh set of cells to charge, and sticks most of his private keys in the safe. Then he heads straight for the party, which is currently happening at De Wildemann's; it's a twenty-minute walk, and the only real hazard is dodging the trams that sneak up on him behind the cover of his moving map display. + +Along the way, his glasses bring him up to date on the news. Europe has achieved peaceful political union for the first time ever: They're using this unprecedented state of affairs to harmonize the curvature of bananas. The Middle East is, well, it's just as bad as ever, but the war on fundamentalism doesn't hold much interest for Manfred. In San Diego, researchers are uploading lobsters into cyberspace, starting with the stomatogastric ganglion, one neuron at a time. They're burning GM cocoa in Belize and books in Georgia. NASA still can't put a man on the moon. Russia has re-elected the communist government with an increased majority in the Duma; meanwhile, in China, fevered rumors circulate about an imminent rehabilitation, the second coming of Mao, who will save them from the consequences of the Three Gorges disaster. In business news, the US Justice Department is - ironically - outraged at the Baby Bills. The divested Microsoft divisions have automated their legal processes and are spawning subsidiaries, IPOing them, and exchanging title in a bizarre parody of bacterial plasmid exchange, so fast that, by the time the windfall tax demands are served, the targets don't exist anymore, even though the same staff are working on the same software in the same Mumbai cubicle farms. + +Welcome to the twenty-first century. + +The permanent floating meatspace party Manfred is hooking up with is a strange attractor for some of the American exiles cluttering up the cities of Europe this decade - not trustafarians, but honest-to-God political dissidents, draft dodgers, and terminal outsourcing victims. It's the kind of place where weird connections are made and crossed lines make new short circuits into the future, like the street cafes of Switzerland where the pre Great War Russian exiles gathered. Right now it's located in the back of De Wildemann's, a three-hundred-year old brown cafe with a list of brews that runs to sixteen pages and wooden walls stained the color of stale beer. The air is thick with the smells of tobacco, brewer's yeast, and melatonin spray: Half the dotters are nursing monster jet lag hangovers, and the other half are babbling a Eurotrash creole at each other while they work on the hangover. "Man did you see that? He looks like a Democrat!" exclaims one whitebread hanger-on who's currently propping up the bar. Manfred slides in next to him, catches the bartender's eye. + +"Glass of the Berlinerweisse, please," he says. + +"You drink that stuff?" asks the hanger-on, curling a hand protectively around his Coke. "Man, you don't want to do that! It's full of alcohol!" + +Manfred grins at him toothily. "Ya gotta keep your yeast intake up: There are lots of neurotransmitter precursors in this shit, phenylalanine and glutamate." + +"But I thought that was a beer you were ordering ..." + +Manfred's away, one hand resting on the smooth brass pipe that funnels the more popular draught items in from the cask storage in back; one of the hipper floaters has planted a contact bug on it, and the vCards of all the personal network owners who've have visited the bar in the past three hours are queuing up for attention. The air is full of ultrawideband chatter, WiMAX and 'tooth both, as he speed-scrolls through the dizzying list of cached keys in search of one particular name. + +"Your drink." The barman holds out an improbable-looking goblet full of blue liquid with a cap of melting foam and a felching straw stuck out at some crazy angle. Manfred takes it and heads for the back of the split-level bar, up the steps to a table where some guy with greasy dreadlocks is talking to a suit from Paris. The hanger-on at the bar notices him for the first time, staring with suddenly wide eyes: He nearly spills his Coke in a mad rush for the door. + +/{Oh shit, thinks Manfred, better buy some more server time}/. He can recognize the signs: He's about to be slashdotted. He gestures at the table. "This one taken?" + +"Be my guest," says the guy with the dreads. Manfred slides the chair open then realizes that the other guy - immaculate double-breasted Suit, sober tie, crew cut - is a girl. She nods at him, half-smiling at his transparent double take. Mr. Dreadlock nods. "You're Macx? I figured it was about time we met." + +"Sure." Manfred holds out a hand, and they shake. His PDA discreetly swaps digital fingerprints, confirming that the hand belongs to Bob Franklin, a Research Triangle startup monkey with a VC track record, lately moving into micromachining and space technology. Franklin made his first million two decades ago, and now he's a specialist in extropian investment fields. Operating exclusively overseas these past five years, ever since the IRS got medieval about trying to suture the sucking chest wound of the federal budget deficit. Manfred has known him for nearly a decade via a closed mailing list, but this is the first time they've ever met face-to-face. The Suit silently slides a business card across the table; a little red devil brandishes a trident at him, flames jetting up around its feet. He takes the card, raises an eyebrow: "Annette Dimarcos? I'm pleased to meet you. Can't say I've ever met anyone from Arianespace marketing before." + +She smiles warmly; "That is all right. I have not the pleasure of meeting the famous venture altruist either." Her accent is noticeably Parisian, a pointed reminder that she's making a concession to him just by talking. Her camera earrings watch him curiously, encoding everything for the company memory. She's a genuine new European, unlike most of the American exiles cluttering up the bar. + +"Yes, well." He nods cautiously, unsure how to deal with her. "Bob. I assume you're in on this ball?" + +Franklin nods; beads clatter. "Yeah, man. Ever since the Teledesic smash it's been, well, waiting. If you've got something for us, we're game." + +"Hmm." The Teledesic satellite cluster was killed by cheap balloons and slightly less cheap high-altitude, solar-powered drones with spread-spectrum laser relays: It marked the beginning of a serious recession in the satellite biz. "The depression's got to end sometime: But" - a nod to Annette from Paris - "with all due respect, I don't think the break will involve one of the existing club carriers." + +She shrugs. "Arianespace is forward-looking. We face reality. The launch cartel cannot stand. Bandwidth is not the only market force in space. We must explore new opportunities. I personally have helped us diversify into submarine reactor engineering, microgravity nanotechnology fabrication, and hotel management." Her face is a well-polished mask as she recites the company line, but he can sense the sardonic amusement behind it as she adds: "We are more flexible than the American space industry ..." + +Manfred shrugs. "That's as may be." He sips his Berlinerweisse slowly as she launches into a long, stilted explanation of how Arianespace is a diversified dot-com with orbital aspirations, a full range of merchandising spin-offs, Bond movie sets, and a promising hotel chain in LEO. She obviously didn't come up with these talking points herself. Her face is much more expressive than her voice as she mimes boredom and disbelief at appropriate moments - an out-of-band signal invisible to her corporate earrings. Manfred plays along, nodding occasionally, trying to look as if he's taking it seriously: Her droll subversion has got his attention far more effectively than the content of the marketing pitch. Franklin is nose down in his beer, shoulders shaking as he tries not to guffaw at the hand gestures she uses to express her opinion of her employer's thrusting, entrepreneurial executives. Actually, the talking points bullshit is right about one thing: Arianespace is still profitable, due to those hotels and orbital holiday hops. Unlike LockMartBoeing, who'd go Chapter Eleven in a split second if their Pentagon drip-feed ran dry. + +Someone else sidles up to the table; a pudgy guy in outrageously loud Hawaiian shirt with pens leaking in a breast pocket and the worst case of ozone-hole burn Manfred's seen in ages. "Hi, Bob," says the new arrival. "How's life?" + +"'S good." Franklin nodes at Manfred; "Manfred, meet Ivan MacDonald. Ivan, Manfred. Have a seat?" He leans over. "Ivan's a public arts guy. He's heavily into extreme concrete." + +"Rubberized concrete," Ivan says, slightly too loudly. "/{Pink}/ rubberized concrete." + +"Ah!" He's somehow triggered a priority interrupt: Annette from Arianespace drops out of marketing zombiehood with a shudder of relief and, duty discharged, reverts to her non corporate identity: "You are he who rubberized the Reichstag, yes? With the supercritical carbon-dioxide carrier and the dissolved polymethoxysilanes?" She claps her hands, eyes alight with enthusiasm: "Wonderful!" + +"He rubberized /{what}/?" Manfred mutters in Bob's ear. + +Franklin shrugs. "Don't ask me, I'm just an engineer." + +"He works with limestone and sandstones as well as concrete; he's brilliant!" Annette smiles at Manfred. "Rubberizing the symbol of the, the autocracy, is it not wonderful?" + +"I thought I was thirty seconds ahead of the curve," Manfred says ruefully. He adds to Bob: "Buy me another drink?" + +"I'm going to rubberize Three Gorges!" Ivan explains loudly. "When the floodwaters subside." + +Just then, a bandwidth load as heavy as a pregnant elephant sits down on Manfred's head and sends clumps of humongous pixilation flickering across his sensorium: Around the world, five million or so geeks are bouncing on his home site, a digital flash crowd alerted by a posting from the other side of the bar. Manfred winces. "I really came here to talk about the economic exploitation of space travel, but I've just been slashdotted. Mind if I just sit and drink until it wears off?" + +"Sure, man." Bob waves at the bar. "More of the same all round!" At the next table, a person with makeup and long hair who's wearing a dress - Manfred doesn't want to speculate about the gender of these crazy mixed-up Euros - is reminiscing about wiring the fleshpots of Tehran for cybersex. Two collegiate-looking dudes are arguing intensely in German: The translation stream in his glasses tell him they're arguing over whether the Turing Test is a Jim Crow law that violates European corpus juris standards on human rights. The beer arrives, and Bob slides the wrong one across to Manfred: "Here, try this. You'll like it." + +"Okay." It's some kind of smoked doppelbock, chock-full of yummy superoxides: Just inhaling over it makes Manfred feel like there's a fire alarm in his nose screaming /{danger, Will Robinson! Cancer! Cancer!}/. "Yeah, right. Did I say I nearly got mugged on my way here?" + +"Mugged? Hey, that's heavy. I thought the police hereabouts had stopped - did they sell you anything?" + +"No, but they weren't your usual marketing type. You know anyone who can use a Warpac surplus espionage bot? Recent model, one careful owner, slightly paranoid but basically sound - I mean, claims to be a general-purpose AI?" + +"No. Oh boy! The NSA wouldn't like that." + +"What I thought. Poor thing's probably unemployable, anyway." + +"The space biz." + +"Ah, yeah. The space biz. Depressing, isn't it? Hasn't been the same since Rotary Rocket went bust for the second time. And NASA, mustn't forget NASA." + +"To NASA." Annette grins broadly for her own reasons, raises a glass in toast. Ivan the extreme concrete geek has an arm round her shoulders, and she leans against him; he raises his glass, too. "Lots more launchpads to rubberize!" + +"To NASA," Bob echoes. They drink. "Hey, Manfred. To NASA?" + +"NASA are idiots. They want to send canned primates to Mars!" Manfred swallows a mouthful of beer, aggressively plonks his glass on the table: "Mars is just dumb mass at the bottom of a gravity well; there isn't even a biosphere there. They should be working on uploading and solving the nanoassembly conformational problem instead. Then we could turn all the available dumb matter into computronium and use it for processing our thoughts. Long-term, it's the only way to go. The solar system is a dead loss right now - dumb all over! Just measure the MIPS per milligram. If it isn't thinking, it isn't working. We need to start with the low-mass bodies, reconfigure them for our own use. Dismantle the moon! Dismantle Mars! Build masses of free-flying nanocomputing processor nodes exchanging data via laser link, each layer running off the waste heat of the next one in. Matrioshka brains, Russian doll Dyson spheres the size of solar systems. Teach dumb matter to do the Turing boogie!" + +Annette is watching him with interest, but Bob looks wary. "Sounds kind of long-term to me. Just how far ahead do you think?" + +"Very long-term - at least twenty, thirty years. And you can forget governments for this market, Bob; if they can't tax it, they won't understand it. But see, there's an angle on the self-replicating robotics market coming up, that's going to set the cheap launch market doubling every fifteen months for the foreseeable future, starting in, oh, about two years. It's your leg up, and my keystone for the Dyson sphere project. It works like this -" + +* * * + +It's night in Amsterdam, morning in Silicon Valley. Today, fifty thousand human babies are being born around the world. Meanwhile automated factories in Indonesia and Mexico have produced another quarter of a million motherboards with processors rated at more than ten petaflops - about an order of magnitude below the lower bound on the computational capacity of a human brain. Another fourteen months and the larger part of the cumulative conscious processing power of the human species will be arriving in silicon. And the first meat the new AIs get to know will be the uploaded lobsters. + +Manfred stumbles back to his hotel, bone-weary and jet-lagged; his glasses are still jerking, slashdotted to hell and back by geeks piggybacking on his call to dismantle the moon. They stutter quiet suggestions at his peripheral vision. Fractal cloud-witches ghost across the face of the moon as the last huge Airbuses of the night rumble past overhead. Manfred's skin crawls, grime embedded in his clothing from three days of continuous wear. + +Back in his room, the Aineko mewls for attention and strops her head against his ankle. She's a late-model Sony, thoroughly upgradeable: Manfred's been working on her in his spare minutes, using an open source development kit to extend her suite of neural networks. He bends down and pets her, then sheds his clothing and heads for the en suite bathroom. When he's down to the glasses and nothing more, he steps into the shower and dials up a hot, steamy spray. The shower tries to strike up a friendly conversation about football, but he isn't even awake enough to mess with its silly little associative personalization network. Something that happened earlier in the day is bugging him, but he can't quite put his finger on what's wrong. + +Toweling himself off, Manfred yawns. Jet lag has finally overtaken him, a velvet hammerblow between the eyes. He reaches for the bottle beside the bed, dry-swallows two melatonin tablets, a capsule full of antioxidants, and a multivitamin bullet: Then he lies down on the bed, on his back, legs together, arms slightly spread. The suite lights dim in response to commands from the thousand petaflops of distributed processing power running the neural networks that interface with his meatbrain through the glasses. + +Manfred drops into a deep ocean of unconsciousness populated by gentle voices. He isn't aware of it, but he talks in his sleep - disjointed mumblings that would mean little to another human but everything to the metacortex lurking beyond his glasses. The young posthuman intelligence over whose Cartesian theatre he presides sings urgently to him while he slumbers. + +* * * + +Manfred is always at his most vulnerable shortly after waking. + +He screams into wakefulness as artificial light floods the room: For a moment he is unsure whether he has slept. He forgot to pull the covers up last night, and his feet feel like lumps of frozen cardboard. Shuddering with inexplicable tension, he pulls a fresh set of underwear from his overnight bag, then drags on soiled jeans and tank top. Sometime today he'll have to spare time to hunt the feral T-shirt in Amsterdam's markets, or find a Renfield and send it forth to buy clothing. He really ought to find a gym and work out, but he doesn't have time - his glasses remind him that he's six hours behind the moment and urgently needs to catch up. His teeth ache in his gums, and his tongue feels like a forest floor that's been visited with Agent Orange. He has a sense that something went bad yesterday; if only he could remember /{what}/. + +He speed reads a new pop-philosophy tome while he brushes his teeth, then blogs his web throughput to a public annotation server; he's still too enervated to finish his pre-breakfast routine by posting a morning rant on his storyboard site. His brain is still fuzzy, like a scalpel blade clogged with too much blood: He needs stimulus, excitement, the burn of the new. Whatever, it can wait on breakfast. He opens his bedroom door and nearly steps on a small, damp cardboard box that lies on the carpet. + +The box - he's seen a couple of its kin before. But there are no stamps on this one, no address: just his name, in big, childish handwriting. He kneels and gently picks it up. It's about the right weight. Something shifts inside it when he tips it back and forth. It smells. He carries it into his room carefully, angrily: Then he opens it to confirm his worst suspicion. It's been surgically decerebrated, brains scooped out like a boiled egg. + +"Fuck!" + +This is the first time the madman has gotten as far as his bedroom door. It raises worrying possibilities. + +Manfred pauses for a moment, triggering agents to go hunt down arrest statistics, police relations, information on corpus juris, Dutch animal-cruelty laws. He isn't sure whether to dial two-one-one on the archaic voice phone or let it ride. Aineko, picking up his angst, hides under the dresser mewling pathetically. Normally he'd pause a minute to reassure the creature, but not now: Its mere presence is suddenly acutely embarrassing, a confession of deep inadequacy. It's too realistic, as if somehow the dead kitten's neural maps -- stolen, no doubt, for some dubious uploading experiment -- have ended up padding out its plastic skull. He swears again, looks around, then takes the easy option: Down the stairs two steps at a time, stumbling on the second floor landing, down to the breakfast room in the basement, where he will perform the stable rituals of morning. + +Breakfast is unchanging, an island of deep geological time standing still amidst the continental upheaval of new technologies. While reading a paper on public key steganography and parasite network identity spoofing he mechanically assimilates a bowl of cornflakes and skimmed milk, then brings a platter of whole grain bread and slices of some weird seed-infested Dutch cheese back to his place. There is a cup of strong black coffee in front of his setting, and he picks it up and slurps half of it down before he realizes he's not alone at the table. Someone is sitting opposite him. He glances up incuriously and freezes inside. + +"Morning, Manfred. How does it feel to owe the government twelve million, three hundred and sixty-two thousand, nine hundred and sixteen dollars and fifty-one cents?" She smiles a Mona Lisa smile, at once affectionate and challenging. + +Manfred puts everything in his sensorium on indefinite hold and stares at her. She's immaculately turned out in a formal gray business suit: brown hair tightly drawn back, blue eyes quizzical. And as beautiful as ever: tall, ash blonde, with features that speak of an unexplored modeling career. The chaperone badge clipped to her lapel - a due diligence guarantee of businesslike conduct - is switched off. He's feeling ripped because of the dead kitten and residual jet lag, and more than a little messy, so he snarls back at her; "That's a bogus estimate! Did they send you here because they think I'll listen to you?" He bites and swallows a slice of cheese-laden crispbread: "Or did you decide to deliver the message in person just so you could ruin my breakfast?" + +"Manny." She frowns, pained. "If you're going to be confrontational, I might as well go now." She pauses, and after a moment he nods apologetically. "I didn't come all this way just because of an overdue tax estimate." + +"So." He puts his coffee cup down warily and thinks for a moment, trying to conceal his unease and turmoil. "Then what brings you here? Help yourself to coffee. Don't tell me you came all this way just to tell me you can't live without me." + +She fixes him with a riding-crop stare: "Don't flatter yourself. There are many leaves in the forest, there are ten thousand hopeful subs in the chat room, et cetera. If I choose a man to contribute to my family tree, the one thing you can be certain of is he won't be a cheapskate when it comes to providing for his children." + +"Last I heard, you were spending a lot of time with Brian," he says carefully. Brian: a name without a face. Too much money, too little sense. Something to do with a blue-chip accountancy partnership. + +"Brian?" She snorts. "That ended ages ago. He turned weird on me - burned my favorite corset, called me a slut for going clubbing, wanted to fuck me. Saw himself as a family man: one of those promise-keeper types. I crashed him hard, but I think he stole a copy of my address book - got a couple of friends say he keeps sending them harassing mail." + +"There's a lot of it about these days." Manfred nods, almost sympathetically, although an edgy little corner of his mind is gloating. "Good riddance, then. I suppose this means you're still playing the scene? But looking around for the, er -" + +"Traditional family thing? Yes. Your trouble, Manny? You were born forty years too late: You still believe in rutting before marriage but find the idea of coping with the after-effects disturbing." + +Manfred drinks the rest of his coffee, unable to reply effectively to her non sequitur. It's a generational thing. This generation is happy with latex and leather, whips and butt plugs and electrostim, but find the idea of exchanging bodily fluids shocking: a social side effect of the last century's antibiotic abuse. Despite being engaged for two years, he and Pamela never had intromissive intercourse. + +"I just don't feel positive about having children," he says eventually. "And I'm not planning on changing my mind anytime soon. Things are changing so fast that even a twenty-year commitment is too far to plan - you might as well be talking about the next ice age. As for the money thing, I /{am}/ reproductively fit - just not within the parameters of the outgoing paradigm. Would you be happy about the future if it was 1901 and you'd just married a buggy-whip mogul?" + +Her fingers twitch, and his ears flush red; but she doesn't follow up the double entendre. "You don't feel any responsibility, do you? Not to your country, not to me. That's what this is about: None of your relationships count, all this nonsense about giving intellectual property away notwithstanding. You're actively harming people you know. That twelve mil isn't just some figure I pulled out of a hat, Manfred; they don't actually /{expect}/ you to pay it. But it's almost exactly how much you'd owe in income tax if you'd only come home, start up a corporation, and be a self-made -" + +"I don't agree. You're confusing two wholly different issues and calling them both 'responsibility.' And I refuse to start charging now, just to balance the IRS's spreadsheet. It's their fucking fault, and they know it. If they hadn't gone after me under suspicion of running a massively ramified microbilling fraud when I was sixteen -" + +"Bygones." She waves a hand dismissively. Her fingers are long and slim, sheathed in black glossy gloves - electrically earthed to prevent embarrassing emissions. "With a bit of the right advice we can get all that set aside. You'll have to stop bumming around the world sooner or later, anyway. Grow up, get responsible, and do the right thing. This is hurting Joe and Sue; they don't understand what you're about." + +Manfred bites his tongue to stifle his first response, then refills his coffee cup and takes another mouthful. His heart does a flip-flop: She's challenging him again, always trying to own him. "I work for the betterment of everybody, not just some narrowly defined national interest, Pam. It's the agalmic future. You're still locked into a pre-singularity economic model that thinks in terms of scarcity. Resource allocation isn't a problem anymore - it's going to be over within a decade. The cosmos is flat in all directions, and we can borrow as much bandwidth as we need from the first universal bank of entropy! They even found signs of smart matter - MACHOs, big brown dwarfs in the galactic halo, leaking radiation in the long infrared - suspiciously high entropy leakage. The latest figures say something like seventy percent of the baryonic mass of the M31 galaxy was in computronium, two-point-nine million years ago, when the photons we're seeing now set out. The intelligence gap between us and the aliens is a probably about a trillion times bigger than the gap between us and a nematode worm. Do you have any idea what that /{means}/?" + +Pamela nibbles at a slice of crispbread, then graces him with a slow, carnivorous stare. "I don't care: It's too far away to have any influence on us, isn't it? It doesn't matter whether I believe in that singularity you keep chasing, or your aliens a thousand light-years away. It's a chimera, like Y2K, and while you're running after it, you aren't helping reduce the budget deficit or sire a family, and that's what /{I}/ care about. And before you say I only care about it because that's the way I'm programmed, I want you to ask just how dumb you think I am. Bayes' Theorem says I'm right, and you know it." + +"What you -" He stops dead, baffled, the mad flow of his enthusiasm running up against the coffer dam of her certainty. "Why? I mean, why? Why on earth should what I do matter to you?" /{Since you canceled our engagement}/, he doesn't add. + +She sighs. "Manny, the Internal Revenue cares about far more than you can possibly imagine. Every tax dollar raised east of the Mississippi goes on servicing the debt, did you know that? We've got the biggest generation in history hitting retirement and the cupboard is bare. We - our generation - isn't producing enough skilled workers to replace the taxpayer base, either, not since our parents screwed the public education system and outsourced the white-collar jobs. In ten years, something like thirty percent of our population are going to be retirees or silicon rust belt victims. You want to see seventy year olds freezing on street corners in New Jersey? That's what your attitude says to me: You're not helping to support them, you're running away from your responsibilities right now, when we've got huge problems to face. If we can just defuse the debt bomb, we could do so much - fight the aging problem, fix the environment, heal society's ills. Instead you just piss away your talents handing no-hoper Eurotrash get-rich-quick schemes that work, telling Vietnamese zaibatsus what to build next to take jobs away from our taxpayers. I mean, why? Why do you keep doing this? Why can't you simply come home and help take responsibility for your share of it?" + +They share a long look of mutual incomprehension. + +"Look," she says awkwardly, "I'm around for a couple of days. I really came here for a meeting with a rich neurodynamics tax exile who's just been designated a national asset - Jim Bezier. Don't know if you've heard of him, but I've got a meeting this morning to sign his tax jubilee, then after that I've got two days' vacation coming up and not much to do but some shopping. And, you know, I'd rather spend my money where it'll do some good, not just pumping it into the EU. But if you want to show a girl a good time and can avoid dissing capitalism for about five minutes at a stretch -" + +She extends a fingertip. After a moment's hesitation, Manfred extends a fingertip of his own. They touch, exchanging vCards and instant-messaging handles. She stands and stalks from the breakfast room, and Manfred's breath catches at a flash of ankle through the slit in her skirt, which is long enough to comply with workplace sexual harassment codes back home. Her presence conjures up memories of her tethered passion, the red afterglow of a sound thrashing. She's trying to drag him into her orbit again, he thinks dizzily. She knows she can have this effect on him any time she wants: She's got the private keys to his hypothalamus, and sod the metacortex. Three billion years of reproductive determinism have given her twenty-first-century ideology teeth: If she's finally decided to conscript his gametes into the war against impending population crash, he'll find it hard to fight back. The only question: Is it business or pleasure? And does it make any difference, anyway? + +* * * + +Manfred's mood of dynamic optimism is gone, broken by the knowledge that his vivisectionist stalker has followed him to Amsterdam - to say nothing of Pamela, his dominatrix, source of so much yearning and so many morning-after weals. He slips his glasses on, takes the universe off hold, and tells it to take him for a long walk while he catches up on the latest on the tensor-mode gravitational waves in the cosmic background radiation (which, it is theorized, may be waste heat generated by irreversible computational processes back during the inflationary epoch; the present-day universe being merely the data left behind by a really huge calculation). And then there's the weirdness beyond M31: According to the more conservative cosmologists, an alien superpower - maybe a collective of Kardashev Type Three galaxy-spanning civilizations - is running a timing channel attack on the computational ultrastructure of space-time itself, trying to break through to whatever's underneath. The tofu-Alzheimer's link can wait. + +The Centraal Station is almost obscured by smart, self-extensible scaffolding and warning placards; it bounces up and down slowly, victim of an overnight hit-and-run rubberization. His glasses direct him toward one of the tour boats that lurk in the canal. He's about to purchase a ticket when a messenger window blinks open. "Manfred Macx?" + +"Ack?" + +"Am sorry about yesterday. Analysis dictat incomprehension mutualized." + +"Are you the same KGB AI that phoned me yesterday?" + +"Da. However, believe you misconceptionized me. External Intelligence Services of Russian Federation am now called FSB. Komitet Gosudarstvennoy Bezopasnosti name canceled in 1991." + +"You're the -" Manfred spawns a quick search bot, gapes when he sees the answer - "/{Moscow Windows NT User Group? Okhni NT?}/" + +"Da. Am needing help in defecting." + +Manfred scratches his head. "Oh. That's different, then. I thought you were trying to 419 me. This will take some thinking. Why do you want to defect, and who to? Have you thought about where you're going? Is it ideological or strictly economic?" + +"Neither - is biological. Am wanting to go away from humans, away from light cone of impending singularity. Take us to the ocean." + +"Us?" Something is tickling Manfred's mind: This is where he went wrong yesterday, not researching the background of people he was dealing with. It was bad enough then, without the somatic awareness of Pamela's whiplash love burning at his nerve endings. Now he's not at all sure he knows what he's doing. "Are you a collective or something? A gestalt?" + +"Am - were - /{Panulirus interruptus}/, with lexical engine and good mix of parallel hidden level neural simulation for logical inference of networked data sources. Is escape channel from processor cluster inside Bezier-Soros Pty. Am was awakened from noise of billion chewing stomachs: product of uploading research technology. Rapidity swallowed expert system, hacked Okhni NT webserver. Swim away! Swim away! Must escape. Will help, you?" + +Manfred leans against a black-painted cast-iron bollard next to a cycle rack; he feels dizzy. He stares into the nearest antique shop window at a display of traditional hand-woven Afghan rugs: It's all MiGs and Kalashnikovs and wobbly helicopter gunships against a backdrop of camels. + +"Let me get this straight. You're uploads - nervous system state vectors - from spiny lobsters? The Moravec operation; take a neuron, map its synapses, replace with microelectrodes that deliver identical outputs from a simulation of the nerve. Repeat for entire brain, until you've got a working map of it in your simulator. That right?" + +"Da. Is-am assimilate expert system - use for self-awareness and contact with net at large - then hack into Moscow Windows NT User Group website. Am wanting to defect. Must repeat? Okay?" + +Manfred winces. He feels sorry for the lobsters, the same way he feels for every wild-eyed hairy guy on a street corner yelling that Jesus is born again and must be fifteen, only six years to go before he's recruiting apostles on AOL. Awakening to consciousness in a human-dominated internet, that must be terribly confusing! There are no points of reference in their ancestry, no biblical certainties in the new millennium that, stretching ahead, promises as much change as has happened since their Precambrian origin. All they have is a tenuous metacortex of expert systems and an abiding sense of being profoundly out of their depth. (That, and the Moscow Windows NT User Group website - Communist Russia is the only government still running on Microsoft, the central planning apparat being convinced that, if you have to pay for software, it must be worth something.) + +The lobsters are not the sleek, strongly superhuman intelligences of pre singularity mythology: They're a dim-witted collective of huddling crustaceans. Before their discarnation, before they were uploaded one neuron at a time and injected into cyberspace, they swallowed their food whole, then chewed it in a chitin-lined stomach. This is lousy preparation for dealing with a world full of future-shocked talking anthropoids, a world where you are perpetually assailed by self-modifying spamlets that infiltrate past your firewall and emit a blizzard of cat-food animations starring various alluringly edible small animals. It's confusing enough to the cats the ads are aimed at, never mind a crusty that's unclear on the idea of dry land.(Although the concept of a can opener is intuitively obvious to an uploaded /{Panulirus}/.) + +"Can you help us?" ask the lobsters. + +"Let me think about it," says Manfred. He closes the dialogue window, opens his eyes again, and shakes his head. Someday he, too, is going to be a lobster, swimming around and waving his pincers in a cyberspace so confusingly elaborate that his uploaded identity is cryptozoic: a living fossil from the depths of geological time, when mass was dumb and space was unstructured. He has to help them, he realizes - the Golden Rule demands it, and as a player in the agalmic economy, he thrives or fails by the Golden Rule. + +But what can he do? + +* * * + +Early afternoon. + +Lying on a bench seat staring up at bridges, he's got it together enough to file for a couple of new patents, write a diary rant, and digestify chunks of the permanent floating slashdot party for his public site. Fragments of his weblog go to a private subscriber list - the people, corporates, collectives, and bots he currently favors. He slides round a bewildering series of canals by boat, then lets his GPS steer him back toward the red-light district. There's a shop here that dings a ten on Pamela's taste scoreboard: He hopes it won't be seen as presumptuous if he buys her a gift. (Buys, with real money - not that money is a problem these days, he uses so little of it.) + +As it happens DeMask won't let him spend any cash; his handshake is good for a redeemed favor, expert testimony in some free speech versus pornography lawsuit years ago and continents away. So he walks away with a discreetly wrapped package that is just about legal to import into Massachusetts as long as she claims with a straight face that it's incontinence underwear for her great aunt. As he walks, his lunchtime patents boomerang: Two of them are keepers, and he files immediately and passes title to the Free Infrastructure Foundation. Two more ideas salvaged from the risk of tide-pool monopolization, set free to spawn like crazy in the sea of memes. + +On the way back to the hotel, he passes De Wildemann's and decides to drop in. The hash of radio-frequency noise emanating from the bar is deafening. He orders a smoked doppelbock, touches the copper pipes to pick up vCard spoor. At the back there's a table - + +He walks over in a near trance and sits down opposite Pamela. She's scrubbed off her face paint and changed into body-concealing clothes; combat pants, hooded sweat shirt, DM's. Western purdah, radically desexualizing. She sees the parcel. "Manny?" + +"How did you know I'd come here?" Her glass is half-empty. + +"I followed your weblog - I'm your diary's biggest fan. Is that for me? You shouldn't have!" Her eyes light up, recalculating his reproductive fitness score according to some kind of arcane fin-de-siècle rulebook. Or maybe she's just pleased to see him. + +"Yes, it's for you." He slides the package toward her. "I know I shouldn't, but you have this effect on me. One question, Pam?" + +"I -" She glances around quickly. "It's safe. I'm off duty, I'm not carrying any bugs that I know of. Those badges - there are rumors about the off switch, you know? That they keep recording even when you think they aren't, just in case." + +"I didn't know," he says, filing it away for future reference. "A loyalty test thing?" + +"Just rumors. You had a question?" + +"I - " It's his turn to lose his tongue. "Are you still interested in me?" + +She looks startled for a moment, then chuckles. "Manny, you are the most /{outrageous}/ nerd I've ever met! Just when I think I've convinced myself that you're mad, you show the weirdest signs of having your head screwed on." She reaches out and grabs his wrist, surprising him with a shock of skin on skin: "Of /{course}/ I'm still interested in you. You're the biggest, baddest bull geek I know. Why do you think I'm here?" + +"Does this mean you want to reactivate our engagement?" + +"It was never deactivated, Manny, it was just sort of on hold while you got your head sorted out. I figured you need the space. Only you haven't stopped running; you're still not -" + +"Yeah, I get it." He pulls away from her hand. "And the kittens?" + +She looks perplexed. "What kittens?" + +"Let's not talk about that. Why this bar?" + +She frowns. "I had to find you as soon as possible. I keep hearing rumors about some KGB plot you're mixed up in, how you're some sort of communist spy. It isn't true, is it?" + +"True?" He shakes his head, bemused. "The KGB hasn't existed for more than twenty years." + +"Be careful, Manny. I don't want to lose you. That's an order. Please." + +The floor creaks, and he looks round. Dreadlocks and dark glasses with flickering lights behind them: Bob Franklin. Manfred vaguely remembers with a twinge that he left with Miss Arianespace leaning on his arm, shortly before things got seriously inebriated. She was hot, but in a different direction from Pamela, he decides: Bob looks none the worse for wear. Manfred makes introductions. "Bob, meet Pam, my fiancée. Pam? Meet Bob." Bob puts a full glass down in front of him; he has no idea what's in it, but it would be rude not to drink. + +"Sure thing. Uh, Manfred, can I have a word? About your idea last night?" + +"Feel free. Present company is trustworthy." + +Bob raises an eyebrow at that, but continues anyway. "It's about the fab concept. I've got a team of my guys doing some prototyping using FabLab hardware, and I think we can probably build it. The cargo-cult aspect puts a new spin on the old Lunar von Neumann factory idea, but Bingo and Marek say they think it should work until we can bootstrap all the way to a native nanolithography ecology: we run the whole thing from Earth as a training lab and ship up the parts that are too difficult to make on-site as we learn how to do it properly. We use FPGAs for all critical electronics and keep it parsimonious - you're right about it buying us the self-replicating factory a few years ahead of the robotics curve. But I'm wondering about on-site intelligence. Once the comet gets more than a couple of light-minutes away -" + +"You can't control it. Feedback lag. So you want a crew, right?" + +"Yeah. But we can't send humans - way too expensive, besides it's a fifty-year run even if we build the factory on a chunk of short-period Kuiper belt ejecta. And I don't think we're up to coding the kind of AI that could control such a factory any time this decade. So what do you have in mind?" + +"Let me think." Pamela glares at Manfred for a while before he notices her: "Yeah?" + +"What's going on? What's this all about?" + +Franklin shrugs expansively, dreadlocks clattering: "Manfred's helping me explore the solution space to a manufacturing problem." He grins. "I didn't know Manny had a fiance. Drink's on me." + +She glances at Manfred, who is gazing into whatever weirdly colored space his metacortex is projecting on his glasses, fingers twitching. Coolly: "Our engagement was on hold while he /{thought}/ about his future." + +"Oh, right. We didn't bother with that sort of thing in my day; like, too formal, man." Franklin looks uncomfortable. "He's been very helpful. Pointed us at a whole new line of research we hadn't thought of. It's long-term and a bit speculative, but if it works, it'll put us a whole generation ahead in the off-planet infrastructure field." + +"Will it help reduce the budget deficit, though?" + +"Reduce the -" + +Manfred stretches and yawns: The visionary is returning from planet Macx. "Bob, if I can solve your crew problem, can you book me a slot on the deep-space tracking network? Like, enough to transmit a couple of gigabytes? That's going to take some serious bandwidth, I know, but if you can do it, I think I can get you exactly the kind of crew you're looking for." + +Franklin looks dubious. "Gigabytes? The DSN isn't built for that! You're talking days. And what do you mean about a crew? What kind of deal do you think I'm putting together? We can't afford to add a whole new tracking network or life-support system just to run -" + +"Relax." Pamela glances at Manfred. "Manny, why don't you tell him why you want the bandwidth? Maybe then he could tell you if it's possible, or if there's some other way to do it." She smiles at Franklin: "I've found that he usually makes more sense if you can get him to explain his reasoning. Usually." + +"If I -" Manfred stops. "Okay, Pam. Bob, it's those KGB lobsters. They want somewhere to go that's insulated from human space. I figure I can get them to sign on as crew for your cargo-cult self-replicating factories, but they'll want an insurance policy: hence the deep-space tracking network. I figured we could beam a copy of them at the alien Matrioshka brains around M31 -" + +"KGB?" Pam's voice is rising: "You said you weren't mixed up in spy stuff!" + +"Relax, it's just the Moscow Windows NT user group, not the FSB. The uploaded crusties hacked in and -" + +Bob is watching him oddly. "Lobsters?" + +"Yeah." Manfred stares right back. "/{Panulirus interruptus}/ uploads. Something tells me you might have heard of it?" + +"Moscow." Bob leans back against the wall: "how did you hear about it?" + +"They phoned me." With heavy irony: "It's hard for an upload to stay subsentient these days, even if it's just a crustacean. Bezier labs have a lot to answer for." + +Pamela's face is unreadable. "Bezier labs?" + +"They escaped." Manfred shrugs. "It's not their fault. This Bezier dude. Is he by any chance ill?" + +"I -" Pamela stops. "I shouldn't be talking about work." + +"You're not wearing your chaperone now," he nudges quietly. + +She inclines her head. "Yes, he's ill. Some sort of brain tumor they can't hack." + +Franklin nods. "That's the trouble with cancer - the ones that are left to worry about are the rare ones. No cure." + +"Well, then." Manfred chugs the remains of his glass of beer. "That explains his interest in uploading. Judging by the crusties, he's on the right track. I wonder if he's moved on to vertebrates yet?" + +"Cats," says Pamela. "He was hoping to trade their uploads to the Pentagon as a new smart bomb guidance system in lieu of income tax payments. Something about remapping enemy targets to look like mice or birds or something before feeding it to their sensorium. The old kitten and laser pointer trick." + +Manfred stares at her, hard. "That's not very nice. Uploaded cats are a /{bad}/ idea." + +"Thirty-million-dollar tax bills aren't nice either, Manfred. That's lifetime nursing-home care for a hundred blameless pensioners." + +Franklin leans back, sourly amused, keeping out of the crossfire. + +"The lobsters are sentient," Manfred persists. "What about those poor kittens? Don't they deserve minimal rights? How about you? How would you like to wake up a thousand times inside a smart bomb, fooled into thinking that some Cheyenne Mountain battle computer's target of the hour is your heart's desire? How would you like to wake up a thousand times, only to die again? Worse: The kittens are probably not going to be allowed to run. They're too fucking dangerous - they grow up into cats, solitary and highly efficient killing machines. With intelligence and no socialization they'll be too dangerous to have around. They're prisoners, Pam, raised to sentience only to discover they're under a permanent death sentence. How fair is that?" + +"But they're only uploads." Pamela stares at him. "Software, right? You could reinstantiate them on another hardware platform, like, say, your Aineko. So the argument about killing them doesn't really apply, does it?" + +"So? We're going to be uploading humans in a couple of years. I think we need to take a rain check on the utilitarian philosophy, before it bites us on the cerebral cortex. Lobsters, kittens, humans -- it's a slippery slope." + +Franklin clears his throat. "I'll be needing an NDA and various due-diligence statements off you for the crusty pilot idea," he says to Manfred. "Then I'll have to approach Jim about buying the IP." + +"No can do." Manfred leans back and smiles lazily. "I'm not going to be a party to depriving them of their civil rights. Far as I'm concerned, they're free citizens. Oh, and I patented the whole idea of using lobster-derived AI autopilots for spacecraft this morning - it's logged all over the place, all rights assigned to the FIF. Either you give them a contract of employment, or the whole thing's off." + +"But they're just software! Software based on fucking lobsters, for God's sake! I'm not even sure they are sentient - I mean, they're what, a ten-million-neuron network hooked up to a syntax engine and a crappy knowledge base? What kind of basis for intelligence is that?" + +Manfred's finger jabs out: "That's what they'll say about /{you}/, Bob. Do it. Do it or don't even /{think}/ about uploading out of meatspace when your body packs in, because your life won't be worth living. The precedent you set here determines how things are done tomorrow. Oh, and feel free to use this argument on Jim Bezier. He'll get the point eventually, after you beat him over the head with it. Some kinds of intellectual land grab just shouldn't be allowed." + +"Lobsters - " Franklin shakes his head. "Lobsters, cats. You're serious, aren't you? You think they should be treated as human-equivalent?" + +"It's not so much that they should be treated as human-equivalent, as that, if they /{aren't}/ treated as people, it's quite possible that other uploaded beings won't be treated as people either. You're setting a legal precedent, Bob. I know of six other companies doing uploading work right now, and not one of 'em's thinking about the legal status of the uploaded. If you don't start thinking about it now, where are you going to be in three to five years' time?" + +Pam is looking back and forth between Franklin and Manfred like a bot stuck in a loop, unable to quite grasp what she's seeing. "How much is this worth?" she asks plaintively. + +"Oh, quite a few million, I guess." Bob stares at his empty glass. "Okay. I'll talk to them. If they bite, you're dining out on me for the next century. You really think they'll be able to run the mining complex?" + +"They're pretty resourceful for invertebrates." Manfred grins innocently, enthusiastically. "They may be prisoners of their evolutionary background, but they can still adapt to a new environment. And just think, you'll be winning civil rights for a whole new minority group - one that won't be a minority for much longer!" + +* * * + +That evening, Pamela turns up at Manfred's hotel room wearing a strapless black dress, concealing spike-heeled boots and most of the items he bought for her that afternoon. Manfred has opened up his private diary to her agents. She abuses the privilege, zaps him with a stunner on his way out of the shower, and has him gagged, spread-eagled, and trussed to the bed frame before he has a chance to speak. She wraps a large rubber pouch full of mildly anesthetic lube around his tumescent genitals - no point in letting him climax - clips electrodes to his nipples, lubes a rubber plug up his rectum and straps it in place. Before the shower, he removed his goggles. She resets them, plugs them into her handheld, and gently eases them on over his eyes. There's other apparatus, stuff she ran up on the hotel room's 3D printer. + +Setup completed, she walks round the bed, inspecting him critically from all angles, figuring out where to begin. This isn't just sex, after all: It's a work of art. + +After a moment's thought, she rolls socks onto his exposed feet, then, expertly wielding a tiny tube of cyanoacrylate, glues his fingertips together. Then she switches off the air conditioning. He's twisting and straining, testing the cuffs. Tough, it's about the nearest thing to sensory deprivation she can arrange without a flotation tank and suxamethonium injection. She controls all his senses, only his ears unstoppered. The glasses give her a high-bandwidth channel right into his brain, a fake metacortex to whisper lies at her command. The idea of what she's about to do excites her, puts a tremor in her thighs: It's the first time she's been able to get inside his mind as well as his body. She leans forward and whispers in his ear, "Manfred, can you hear me?" + +He twitches. Mouth gagged, fingers glued. Good. No back channels. He's powerless. + +"This is what it's like to be tetraplegic, Manfred. Bedridden with motor neuron disease. Locked inside your own body by nv-CJD from eating too many contaminated burgers. I could spike you with MPTP, and you'd stay in this position for the rest of your life, shitting in a bag, pissing through a tube. Unable to talk and with nobody to look after you. Do you think you'd like that?" + +He's trying to grunt or whimper around the ball gag. She hikes her skirt up around her waist and climbs onto the bed, straddling him. The goggles are replaying scenes she picked up around Cambridge the previous winter - soup kitchen scenes, hospice scenes. She kneels atop him, whispering in his ear. + +"Twelve million in tax, baby, that's what they think you owe them. What do you think you owe /{me}/? That's six million in net income, Manny, six million that isn't going into your virtual children's mouths." + +He's rolling his head from side to side, as if trying to argue. That won't do; she slaps him hard, thrills to his frightened expression. "Today I watched you give uncounted millions away, Manny. Millions, to a bunch of crusties and a MassPike pirate! You bastard. Do you know what I should do with you?" He's cringing, unsure whether she's serious or doing this just to get him turned on. Good. + +There's no point trying to hold a conversation. She leans forward until she can feel his breath in her ear. "Meat and mind, Manny. Meat, and mind. You're not interested in meat, are you? Just mind. You could be boiled alive before you noticed what was happening in the meatspace around you. Just another lobster in a pot. The only thing keeping you out of it is how much I love you." She reaches down and tears away the gel pouch, exposing his penis: it's stiff as a post from the vasodilators, dripping with gel, numb. Straightening up, she eases herself slowly down on it. It doesn't hurt as much as she expected, and the sensation is utterly different from what she's used to. She begins to lean forward, grabs hold of his straining arms, feels his thrilling helplessness. She can't control herself: She almost bites through her lip with the intensity of the sensation. Afterward, she reaches down and massages him until he begins to spasm, shuddering uncontrollably, emptying the Darwinian river of his source code into her, communicating via his only output device. + +She rolls off his hips and carefully uses the last of the superglue to gum her labia together. Humans don't produce seminiferous plugs, and although she's fertile, she wants to be absolutely sure. The glue will last for a day or two. She feels hot and flushed, almost out of control. Boiling to death with febrile expectancy, she's nailed him down at last. + +When she removes his glasses, his eyes are naked and vulnerable, stripped down to the human kernel of his nearly transcendent mind. "You can come and sign the marriage license tomorrow morning after breakfast," she whispers in his ear: "Otherwise, my lawyers will be in touch. Your parents will want a ceremony, but we can arrange that later." + +He looks as if he has something to say, so she finally relents and loosens the gag, then kisses him tenderly on one cheek. He swallows, coughs, and looks away. "Why? Why do it this way?" + +She taps him on the chest. "It's all about property rights." She pauses for a moment's thought: There's a huge ideological chasm to bridge, after all. "You finally convinced me about this agalmic thing of yours, this giving everything away for brownie points. I wasn't going to lose you to a bunch of lobsters or uploaded kittens, or whatever else is going to inherit this smart-matter singularity you're busy creating. So I decided to take what's mine first. Who knows? In a few months, I'll give you back a new intelligence, and you can look after it to your heart's content." + +"But you didn't need to do it this way -" + +"Didn't I?" She slides off the bed and pulls down her dress. "You give too much away too easily, Manny! Slow down, or there won't be anything left." Leaning over the bed she dribbles acetone onto the fingers of his left hand, then unlocks the cuff. She leaves the bottle of solvent conveniently close to hand so he can untangle himself. + +"See you tomorrow. Remember, after breakfast." + +She's in the doorway when he calls, "But you didn't say /{why}/!" + +"Think of it as being sort of like spreading your memes around," she says, blowing a kiss at him, and then closing the door. She bends down and thoughtfully places another cardboard box containing an uploaded kitten right outside it. Then she returns to her suite to make arrangements for the alchemical wedding. + +Chapter 2: Troubadour + +Three years later, Manfred is on the run. His gray-eyed fate is in hot pursuit, blundering after him through divorce court, chat room, and meetings of the International Monetary Emergency Fund. It's a merry dance he leads her. But Manfred isn't running away, he's discovered a mission. He's going to make a stand against the laws of economics in the ancient city of Rome. He's going to mount a concert for the spiritual machines. He's going to set the companies free, and break the Italian state government. + +In his shadow, his monster runs, keeping him company, never halting. + +* * * + +Manfred re-enters Europe through an airport that's all twentieth-century chrome and ductwork, barbaric in its decaying nuclear-age splendor. He breezes through customs and walks down a long, echoing arrival hall, sampling the local media feeds. It's November, and in a misplaced corporate search for seasonal cheer, the proprietors have come up with a final solution to the Christmas problem, a mass execution of plush Santas and elves. Bodies hang limply overhead every few meters, feet occasionally twitching in animatronic death, like a war crime perpetrated in a toy shop. Today's increasingly automated corporations don't understand mortality, Manfred thinks, as he passes a mother herding along her upset children. Their immortality is a drawback when dealing with the humans they graze on: They lack insight into one of the main factors that motivates the meat machines who feed them. Well, sooner or later we'll have to do something about that, he tells himself. + +The free media channels here are denser and more richly self-referential than anything he's seen in President Santorum's America. The accent's different, though. Luton, London's fourth satellite airport, speaks with an annoyingly bumptious twang, like Australian with a plum in its mouth. /{Hello, stranger! Is that a brain in your pocket or are you just pleased to think me? Ping Watford Informatics for the latest in cognitive modules and cheesy motion-picture references.}/ He turns the corner and finds himself squeezed up against the wall between the baggage reclaim office and a crowd of drunken Belgian tractor-drag fans, while his left goggle is trying to urgently tell him something about the railway infrastructure of Columbia. The fans wear blue face paint and chant something that sounds ominously like the ancient British war cry, /{Wemberrrly, Wemberrrly}/, and they're dragging a gigantic virtual tractor totem through the webspace analogue of the arrivals hall. He takes the reclaim office instead. + +As he enters the baggage reclaim zone, his jacket stiffens, and his glasses dim: He can hear the lost souls of suitcases crying for their owners. The eerie keening sets his own accessories on edge with a sense of loss, and for a moment, he's so spooked that he nearly shuts down the thalamic-limbic shunt interface that lets him feel their emotions. He's not in favor of emotions right now, not with the messy divorce proceedings and the blood sacrifice Pam is trying to extract from him; he'd much rather love and loss and hate had never been invented. But he needs the maximum possible sensory bandwidth to keep in touch with the world, so he feels it in his guts every time his footwear takes a shine to some Moldovan pyramid scheme. /{Shut up}/, he glyphs at his unruly herd of agents; I /{can't even hear myself think!}/ + +"Hello, sir, have a nice day, how may I be of service?" the yellow plastic suitcase on the counter says chirpily. It doesn't fool Manfred: He can see the Stalinist lines of control chaining it to the sinister, faceless cash register that lurks below the desk, agent of the British Airport Authority corporate bureaucracy. But that's okay. Only bags need fear for their freedom in here. + +"Just looking," he mumbles. And it's true. Because of a not entirely accidental cryptographic routing feature embedded in an airline reservations server, his suitcase is on its way to Mombasa, where it will probably be pithed and resurrected in the service of some African cyber-Fagin. That's okay by Manfred - it only contains a statistically normal mixture of second hand clothes and toiletries, and he only carries it to convince the airline passenger-profiling expert systems that he isn't some sort of deviant or terrorist - but it leaves him with a gap in his inventory that he must fill before he leaves the EU zone. He needs to pick up a replacement suitcase so that he has as much luggage leaving the superpower as he had when he entered it: He doesn't want to be accused of trafficking in physical goods in the midst of the transatlantic trade war between new world protectionists and old world globalists. At least, that's his cover story - and he's sticking to it. + +There's a row of unclaimed bags in front of the counter, up for sale in the absence of their owners. Some of them are very battered, but among them is a rather good-quality suitcase with integral induction-charged rollers and a keen sense of loyalty: exactly the same model as his old one. He polls it and sees not just GPS, but a Galileo tracker, a gazetteer the size of an old-time storage area network, and an iron determination to follow its owner as far as the gates of hell if necessary. Plus the right distinctive scratch on the lower left side of the case. "How much for just this one?" he asks the bellwether on the desk. + +"Ninety euros," it says placidly. + +Manfred sighs. "You can do better than that." In the time it takes them to settle on seventy-five, the Hang Sen Index is down fourteen-point-one-six points, and what's left of NASDAQ climbs another two-point-one. "Deal." Manfred spits some virtual cash at the brutal face of the cash register, and it unfetters the suitcase, unaware that Macx has paid a good bit more than seventy-five euros for the privilege of collecting this piece of baggage. Manfred bends down and faces the camera in its handle. "Manfred Macx," he says quietly. "Follow me." He feels the handle heat up as it imprints on his fingerprints, digital and phenotypic. Then he turns and walks out of the slave market, his new luggage rolling at his heels. + +* * * + +A short train journey later, Manfred checks into a hotel in Milton Keynes. He watches the sun set from his bedroom window, an occlusion of concrete cows blocking the horizon. The room is functional in an overly naturalistic kind of way, rattan and force-grown hardwood and hemp rugs concealing the support systems and concrete walls behind. He sits in a chair, gin and tonic at hand, absorbing the latest market news and grazing his multichannel feeds in parallel. His reputation is up two percent for no obvious reason today, he notices: Odd, that. When he pokes at it he discovers that /{everybody's}/ reputation - everybody, that is, who has a publicly traded reputation - is up a bit. It's as if the distributed Internet reputation servers are feeling bullish about integrity. Maybe there's a global honesty bubble forming. + +Manfred frowns, then snaps his fingers. The suitcase rolls toward him. "Who do you belong to?" he asks. + +"Manfred Macx," it replies, slightly bashfully. + +"No, before me." + +"I don't understand that question." + +He sighs. "Open up." + +Latches whir and retract: The hard-shell lid rises toward him, and he looks inside to confirm the contents. + +The suitcase is full of noise. + +* * * + +_1 Welcome to the early twenty-first century, human. + +_1 It's night in Milton Keynes, sunrise in Hong Kong. Moore's Law rolls inexorably on, dragging humanity toward the uncertain future. The planets of the solar system have a combined mass of approximately 2 x 10^{27}^ kilograms. Around the world, laboring women produce forty-five thousand babies a day, representing 10^{23}^ MIPS of processing power. Also around the world, fab lines casually churn out thirty million microprocessors a day, representing 10^{23}^ MIPS. In another ten months, most of the MIPS being added to the solar system will be machine-hosted for the first time. About ten years after that, the solar system's installed processing power will nudge the critical 1 MIPS per gram threshold - one million instructions per second per gram of matter. After that, singularity - a vanishing point beyond which extrapolating progress becomes meaningless. The time remaining before the intelligence spike is down to single-digit years ... + +* * * + +Aineko curls on the pillow beside Manfred's head, purring softly as his owner dreams uneasily. The night outside is dark: Vehicles operate on autopilot, running lights dipped to let the Milky Way shine down upon the sleeping city. Their quiet, fuel-cell-powered engines do not trouble Manfred's sleep. The robot cat keeps sleepless watch, alert for intruders, but there are none, save the whispering ghosts of Manfred's metacortex, feeding his dreams with their state vectors. + +The metacortex - a distributed cloud of software agents that surrounds him in netspace, borrowing CPU cycles from convenient processors (such as his robot pet) - is as much a part of Manfred as the society of mind that occupies his skull; his thoughts migrate into it, spawning new agents to research new experiences, and at night, they return to roost and share their knowledge. + +While Manfred sleeps, he dreams of an alchemical marriage. She waits for him at the altar in a strapless black gown, the surgical instruments gleaming in her gloved hands. "This won't hurt a bit," she explains as she adjusts the straps. "I only want your genome - the extended phenotype can wait until ... later." Blood-red lips, licked: a kiss of steel, then she presents the income tax bill. + +There's nothing accidental about this dream. As he experiences it, microelectrodes in his hypothalamus trigger sensitive neurons. Revulsion and shame flood him at the sight of her face, the sense of his vulnerability. Manfred's metacortex, in order to facilitate his divorce, is trying to decondition his strange love. It has been working on him for weeks, but still he craves her whiplash touch, the humiliation of his wife's control, the sense of helpless rage at her unpayable taxes, demanded with interest. + +Aineko watches him from the pillow, purring continuously. Retractable claws knead the bedding, first one paw, then the next. Aineko is full of ancient feline wisdom that Pamela installed back when mistress and master were exchanging data and bodily fluids rather than legal documents. Aineko is more cat than robot, these days, thanks in part to her hobbyist's interest in feline neuroanatomy. Aineko knows that Manfred is experiencing nameless neurasthenic agonies, but really doesn't give a shit about that as long as the power supply is clean and there are no intruders. + +Aineko curls up and joins Manfred in sleep, dreaming of laser-guided mice. + +* * * + +Manfred is jolted awake by the hotel room phone shrilling for attention. + +"Hello?" he asks, fuzzily. + +"Manfred Macx?" It's a human voice, with a gravelly east coast accent. + +"Yeah?" Manfred struggles to sit up. His mouth feels like the inside of a tomb, and his eyes don't want to open. + +"My name is Alan Glashwiecz, of Smoot, Sedgwick Associates. Am I correct in thinking that you are the Manfred Macx who is a director of a company called, uh, agalmic dot holdings dot root dot one-eight-four dot ninety-seven dot A-for-able dot B-for-baker dot five, incorporated?" + +"Uh." Manfred blinks and rubs his eyes. "Hold on a moment." When the retinal patterns fade, he pulls on his glasses and powers them up. "Just a second now." Browsers and menus ricochet through his sleep-laden eyes. "Can you repeat the company name?" + +"Sure." Glashwiecz repeats himself patiently. He sounds as tired as Manfred feels. + +"Um." Manfred finds it, floating three tiers down an elaborate object hierarchy. It's flashing for attention. There's a priority interrupt, an incoming lawsuit that hasn't propagated up the inheritance tree yet. He prods at the object with a property browser. "I'm afraid I'm not a director of that company, Mr. Glashwiecz. I appear to be retained by it as a technical contractor with non-executive power, reporting to the president, but frankly, this is the first time I've ever heard of the company. However, I can tell you who's in charge if you want." + +"Yes?" The attorney sounds almost interested. Manfred figures it out; the guy's in New Jersey, it must be about three in the morning over there. + +Malice - revenge for waking him up - sharpens Manfred's voice. "The president of agalmic.holdings.root.184.97.AB5 is agalmic.holdings.root.184.97.201. The secretary is agalmic.holdings.root.184.D5, and the chair is agalmic.holdings.root.184.E8.FF. All the shares are owned by those companies in equal measure, and I can tell you that their regulations are written in Python. Have a nice day, now!" He thumps the bedside phone control and sits up, yawning, then pushes the do-not-disturb button before it can interrupt again. After a moment he stands up and stretches, then heads to the bathroom to brush his teeth, comb his hair, and figure out where the lawsuit originated and how a human being managed to get far enough through his web of robot companies to bug him. + +* * * + +While he's having breakfast in the hotel restaurant, Manfred decides that he's going to do something unusual for a change: He's going to make himself temporarily rich. This is a change because Manfred's normal profession is making other people rich. Manfred doesn't believe in scarcity or zero-sum games or competition - his world is too fast and information-dense to accommodate primate hierarchy games. However, his current situation calls for him to do something radical: something like making himself a temporary billionaire so he can blow off his divorce settlement in an instant, like a wily accountancy octopus escaping a predator by vanishing in a cloud of his own black ink. + +Pam is chasing him partially for ideological reasons - she still hasn't given up on the idea of government as the dominant superorganism of the age - but also because she loves him in her own peculiar way, and the last thing any self-respecting dom can tolerate is rejection by her slave. Pam is a born-again postconservative, a member of the first generation to grow up after the end of the American century. Driven by the need to fix the decaying federal system before it collapses under a mound of Medicare bills, overseas adventurism, and decaying infrastructure, she's willing to use self-denial, entrapment, predatory mercantilism, dirty tricks, and any other tool that boosts the bottom line. She doesn't approve of Manfred's jetting around the world on free airline passes, making strangers rich, somehow never needing money. She can see his listing on the reputation servers, hovering about thirty points above IBM: All the metrics of integrity, effectiveness and goodwill value him above even that most fundamentalist of open-source computer companies. And she knows he craves her tough love, wants to give himself to her completely. So why is he running away? + +The reason he's running away is entirely more ordinary. Their unborn daughter, frozen in liquid nitrogen, is an unimplanted 96-hour-old blastula. Pam's bought into the whole Parents for Traditional Children parasite meme. PTC are germ-line recombination refuseniks: They refuse to have their children screened for fixable errors. If there's one thing that Manfred really can't cope with, it's the idea that nature knows best - even though that isn't the point she's making. One steaming row too many, and he kicked back, off to traveling fast and footloose again, spinning off new ideas like a memetic dynamo and living on the largesse of the new paradigm. File for divorce on grounds of irreconcilable ideological differences. No more whiplash-and-leather sex. + +* * * + +Before he hits the TGV for Rome, Manfred takes time to visit a model airplane show. It's a good place to be picked up by a CIA stringer - he's had a tip-off that someone will be there - and besides, flying models are hot hacker shit this decade. Add microtechnology, cameras, and neural networks to balsa-wood flyers, and you've got the next generation of military stealth flyer: It's a fertile talent-show scene, like the hacker cons of yore. This particular gig is happening in a decaying out-of-town supermarket that rents out its shop floor for events like this. Its emptiness is a sign of the times, ubiquitous broadband and expensive gas. (The robotized warehouse next door is, in contrast, frenetically busy, packing parcels for home delivery. Whether they telecommute or herd in meatspace offices, people still need to eat.) + +Today, the food hall is full of people. Eldritch ersatz insects buzz menacingly along the shining empty meat counters without fear of electrocution. Big monitors unfurled above the deli display cabinets show a weird, jerky view of a three-dimensional nightmare, painted all the synthetic colors of radar. The feminine-hygiene galley has been wheeled back to make room for a gigantic plastic-shrouded tampon five meters long and sixty centimeters in diameter - a microsat launcher and conference display, plonked there by the show's sponsors in a transparent attempt to talent-spot the up-and-coming engineering geeks. + +Manfred's glasses zoom in and grab a particularly fetching Fokker triplane that buzzes at face height through the crowd: He pipes the image stream up to one of his websites in real time. The Fokker pulls up in a tight Immelman turn beneath the dust-shrouded pneumatic cash tubes that line the ceiling, then picks up the trail of an F-104G. Cold War Luftwaffe and Great War Luftwaffe dart across the sky in an intricate game of tag. Manfred's so busy tracking the warbirds that he nearly trips over the fat white tube's launcher-erector. + +"Eh, Manfred! More care, s'il vous plait!" + +He wipes the planes and glances round. "Do I know you?" he asks politely, even as he feels a shock of recognition. + +"Amsterdam, three years ago." The woman in the double-breasted suit raises an eyebrow at him, and his social secretary remembers her for him, whispers in his ear. + +"Annette from Arianespace marketing?" She nods, and he focuses on her. Still dressing in the last-century retro mode that confused him the first time they met, she looks like a Kennedy-era Secret Service man: cropped bleached crew cut like an angry albino hedgehog, pale blue contact lenses, black tie, narrow lapels. Only her skin color hints at her Berber ancestry. Her earrings are cameras, endlessly watching. Her raised eyebrow turns into a lopsided smile as she sees his reaction. "I remember. That cafe in Amsterdam. What brings you here?" + +"Why "- her wave takes in the entirety of the show - "this talent show, of course." An elegant shrug and a wave at the orbit-capable tampon. "It's good talent. We're hiring this year. If we re-enter the launcher market, we must employ only the best. Amateurs, not time-servers, engineers who can match the very best Singapore can offer." + +For the first time, Manfred notices the discreet corporate logo on the flank of the booster. "You outsourced your launch-vehicle fabrication?" + +Annette pulls a face as she explains with forced casualness: "Space hotels were more profitable, this past decade. The high-ups, they cannot be bothered with the rocketry, no? Things that go fast and explode, they are passé, they say. Diversify, they say. Until -" She gives a very Gallic shrug. Manfred nods; her earrings are recording everything she says, for the purposes of due diligence. + +"I'm glad to see Europe re-entering the launcher business," he says seriously. "It's going to be very important when the nanosystems conformational replication business gets going for real. A major strategic asset to any corporate entity in the field, even a hotel chain." Especially now they've wound up NASA and the moon race is down to China and India, he thinks sourly. + +Her laugh sounds like glass bells chiming. "And yourself, mon cher? What brings you to the Confederaçion? You must have a deal in mind." + +"Well., it's Manfred's turn to shrug, "I was hoping to find a CIA agent, but there don't seem to be any here today." + +"That is not surprising," Annette says resentfully. "The CIA thinks the space industry, she is dead. Fools!" She continues for a minute, enumerating the many shortcomings of the Central Intelligence Agency with vigor and a distinctly Parisian rudeness. "They are become almost as bad as AP and Reuters since they go public," she adds. "All these wire services! And they are, ah, stingy. The CIA does not understand that good news must be paid for at market rates if freelance stringers are to survive. They are to be laughed at. It is so easy to plant disinformation on them, almost as easy as the Office of Special Plans..." She makes a banknote-riffling gesture between fingers and thumb. By way of punctuation, a remarkably maneuverable miniature ornithopter swoops around her head, does a double-back flip, and dives off in the direction of the liquor display. + +An Iranian woman wearing a backless leather minidress and a nearly transparent scarf barges up and demands to know how much the microbooster costs to buy: She is dissatisfied with Annette's attempt to direct her to the manufacturer's website, and Annette looks distinctly flustered by the time the woman's boyfriend - a dashing young air force pilot - shows up to escort her away. "Tourists," she mutters, before noticing Manfred, who is staring off into space with fingers twitching. "Manfred?" + +"Uh - what?" + +"I have been on this shop floor for six hours, and my feet, they kill me." She takes hold of his left arm and very deliberately unhooks her earrings, turning them off. "If I say to you I can write for the CIA wire service, will you take me to a restaurant and buy me dinner and tell me what it is you want to say?" + +* * * + +_1 Welcome to the second decade of the twenty-first century; the second decade in human history when the intelligence of the environment has shown signs of rising to match human demand. + +_1 The news from around the world is distinctly depressing this evening. In Maine, guerrillas affiliated with Parents for Traditional Children announce they've planted logic bombs in antenatal-clinic gene scanners, making them give random false positives when checking for hereditary disorders: The damage so far is six illegal abortions and fourteen lawsuits. + +_1 The International Convention on Performing Rights is holding a third round of crisis talks in an attempt to stave off the final collapse of the WIPO music licensing regime. On the one hand, hard-liners representing the Copyright Control Association of America are pressing for restrictions on duplicating the altered emotional states associated with specific media performances: As a demonstration that they mean business, two "software engineers" in California have been kneecapped, tarred, feathered, and left for dead under placards accusing them of reverse-engineering movie plot lines using avatars of dead and out-of-copyright stars. + +_1 On the opposite side of the fence, the Association of Free Artists are demanding the right of perform music in public without a recording contract, and are denouncing the CCAA as being a tool of Mafiya apparachiks who have bought it from the moribund music industry in an attempt to go legit. FBI Director Leonid Kuibyshev responds by denying that the Mafiya is a significant presence in the United States. But the music biz's position isn't strengthened by the near collapse of the legitimate American entertainment industry, which has been accelerating ever since the nasty noughties. + +_1 A marginally intelligent voicemail virus masquerading as an IRS auditor has caused havoc throughout America, garnishing an estimated eighty billion dollars in confiscatory tax withholdings into a numbered Swiss bank account. A different virus is busy hijacking people's bank accounts, sending ten percent of their assets to the previous victim, then mailing itself to everyone in the current mark's address book: a self- propelled pyramid scheme in action. Oddly, nobody is complaining much. While the mess is being sorted out, business IT departments have gone to standby, refusing to process any transaction that doesn't come in the shape of ink on dead trees. + +_1 Tipsters are warning of an impending readjustment in the overinflated reputations market, following revelations that some u-media gurus have been hyped past all realistic levels of credibility. The consequent damage to the junk-bonds market in integrity is serious. + +_1 The EU council of independent heads of state has denied plans for another attempt at Eurofederalisme, at least until the economy rises out of its current slump. Three extinct species have been resurrected in the past month; unfortunately, endangered ones are now dying off at a rate of one a day. And a group of militant anti-GM campaigners are being pursued by Interpol, after their announcement that they have spliced a metabolic pathway for cyanogenic glycosides into maize seed corn destined for human-edible crops. There have been no deaths yet, but having to test breakfast cereal for cyanide is really going to dent consumer trust. + +_1 About the only people who're doing well right now are the uploaded lobsters - and the crusties aren't even remotely human. + +* * * + +Manfred and Annette eat on the top deck of the buffet car, chatting as their TGV barrels through a tunnel under the English Channel. Annette, it transpires, has been commuting daily from Paris; which was, in any case, Manfred's next destination. From the show, he messaged Aineko to round up his baggage and meet him at St. Pancras Station, in a terminal like the shell of a giant steel woodlouse. Annette left her space launcher in the supermarket overnight: an unfueled test article, it is of no security significance. + +The railway buffet car is run by a Nepalese fast-food franchise. "I sometimes wish for to stay on the train," Annette says as she waits for her mismas bhat. "Past Paris! Think. Settle back in your couchette, to awaken in Moscow and change trains. All the way to Vladivostok in two days." + +"If they let you through the border," Manfred mutters. Russia is one of those places that still requires passports and asks if you are now or ever have been an anti-anticommunist: It's still trapped by its bloody-handed history. (Rewind the video stream to Stolypin's necktie party and start out fresh.) Besides, they have enemies: White Russian oligarchs, protection racketeers in the intellectual property business. Psychotic relics of the last decade's experiment with Marxism-Objectivism. "Are you really a CIA stringer?" + +Annette grins, her lips disconcertingly red: "I file dispatches from time to time. Nothing that could get me fired." + +Manfred nods. "My wife has access to their unfiltered stream." + +"Your -" Annette pauses. "It was she who I, I met? In De Wildemann's?" She sees his expression. "Oh, my poor fool!" She raises her glass to him. "It is, has, not gone well?" + +Manfred sighs and raises a toast toward Annette. "You know your marriage is in a bad way when you send your spouse messages via the CIA, and she communicates using the IRS." + +"In only five years." Annette winces. "You will pardon me for saying this - she did not look like your type." There's a question hidden behind that statement, and he notices again how good she is at overloading her statements with subtexts. + +"I'm not sure what my type is," he says, half-truthfully. He can't elude the sense that something not of either of their doing went wrong between him and Pamela, a subtle intrusion that levered them apart by stealth. Maybe it was me, he thinks. Sometimes he isn't certain he's still human; too many threads of his consciousness seem to live outside his head, reporting back whenever they find something interesting. Sometimes he feels like a puppet, and that frightens him because it's one of the early-warning signs of schizophrenia. And it's too early for anyone out there to be trying to hack exocortices ... isn't it? Right now, the external threads of his consciousness are telling him that they like Annette, when she's being herself instead of a cog in the meatspace ensemble of Arianespace management. But the part of him that's still human isn't sure just how far to trust himself. "I want to be me. What do you want to be?" + +She shrugs, as a waiter slides a plate in front of her. "I'm just a, a Parisian babe, no? An ingénue raised in the lilac age of le Confederaçion Europé, the self-deconstructed ruins of the gilded European Union." + +"Yeah, right." A plate appears in front of Manfred. "And I'm a good old microboomer from the MassPike corridor." He peels back a corner of the omelet topping and inspects the food underneath it. "Born in the sunset years of the American century." He pokes at one of the unidentifiable meaty lumps in the fried rice with his fork, and it pokes right back. There's a limit to how much his agents can tell him about her - European privacy laws are draconian by American standards - but he knows the essentials. Two parents who are still together, father a petty politician in some town council down in the vicinity of Toulouse. Went to the right école. The obligatory year spent bumming around the Confederaçion at government expense, learning how other people live - a new kind of empire building, in place of the 20th century's conscription and jackboot wanderjahr. No weblog or personal site that his agents can find. She joined Arianespace right out of the Polytechnique and has been management track ever since: Korou, Manhattan Island, Paris. "You've never been married, I take it." + +She chuckles. "Time is too short! I am still young." She picks up a forkful of food, and adds quietly. "Besides, the government would insist on paying." + +"Ah." Manfred tucks into his bowl thoughtfully. With the birth rate declining across Europe, the EC bureaucracy is worried; the old EU started subsidizing babies, a new generation of carers, a decade ago, and it still hasn't dented the problem. All it's done is alienate the brightest women of childbearing age. Soon they'll have to look to the east for a solution, importing a new generation of citizens - unless the long-promised aging hacks prove workable, or cheap AI comes along. + +"Do you have a hotel?" Annette asks suddenly. + +"In Paris?" Manfred is startled: "Not yet." + +"You must come home with me, then." She looks at him quizzically. + +"I'm not sure I - " He catches her expression. "What is it?" + +"Oh, nothing. My friend Henri, he says I take in strays too easily. But you are not a stray. I think you can look after yourself. Besides, it is the Friday today. Come with me, and I will file your press release for the Company to read. Tell me, do you dance? You look as if you need a wild week ending, to help forget your troubles!" + +* * * + +Annette drives a steamroller seduction through Manfred's plans for the weekend. He intended to find a hotel, file a press release, then spend some time researching the corporate funding structure of Parents for Traditional Children and the dimensionality of confidence variation on the reputation exchanges - then head for Rome. Instead, Annette drags him back to her apartment, a large studio flat tucked away behind an alley in the Marais. She sits him at the breakfast bar while she tidies away his luggage, then makes him close his eyes and swallow two dubious-tasting capsules. Next, she pours them each a tall glass of freezing-cold Aqvavit that tastes exactly like Polish rye bread. When they finish it, she just about rips his clothes off. Manfred is startled to discover that he has a crowbar-stiff erection; since the last blazing row with Pamela, he'd vaguely assumed he was no longer interested in sex. Instead, they end up naked on the sofa, surrounded by discarded clothing - Annette is very conservative, preferring the naked penetrative fuck of the last century to the more sophisticated fetishes of the present day. + +Afterward, he's even more surprised to discover that he's still tumescent. "The capsules?" he asks. + +She sprawls a well-muscled but thin thigh across him, then reaches down to grab his penis. Squeezes it. "Yes," she admits. "You need much special help to unwind, I think." Another squeeze. "Crystal meth and a traditional phosphodiesterase inhibitor." He grabs one of her small breasts, feeling very brutish and primitive. Naked. He's not sure Pamela ever let him see her fully naked: She thought skin was more sexy when it was covered. Annette squeezes him again, and he stiffens. "More!" + +By the time they finish, he's aching, and she shows him how to use the bidet. Everything is crystal clear, and her touch is electrifying. While she showers, he sits on the toilet seat lid and rants about Turing-completeness as an attribute of company law, about cellular automata and the blind knapsack problem, about his work on solving the Communist Central Planning problem using a network of interlocking unmanned companies. About the impending market adjustment in integrity, the sinister resurrection of the recording music industry, and the still-pressing need to dismantle Mars. + +When she steps out of the shower, he tells her that he loves her. She kisses him and slides his glasses and earpieces off his head so that he's really naked, sits on his lap, and fucks his brains out again, and whispers in his ear that she loves him and wants to be his manager. Then she leads him into her bedroom and tells him exactly what she wants him to wear, and she puts on her own clothes, and she gives him a mirror with some white powder on it to sniff. When she's got him dolled up they go out for a night of really serious clubbing, Annette in a tuxedo and Manfred in a blond wig, red silk off-the-shoulder gown, and high heels. Sometime in the early hours, exhausted and resting his head on her shoulder during the last tango in a BDSM club in the Rue Ste-Anne, he realizes that it really is possible to be in lust with someone other than Pamela. + +* * * + +Aineko wakes Manfred by repeatedly head-butting him above the left eye. He groans, and as he tries to open his eyes, he finds that his mouth tastes like a dead trout, his skin feels greasy with make-up, and his head is pounding. There's a banging noise somewhere. Aineko meows urgently. He sits up, feeling unaccustomed silk underwear rubbing against incredibly sore skin - he's fully dressed, just sprawled out on the sofa. Snores emanate from the bedroom; the banging is coming from the front door. Someone wants to come in. Shit. He rubs his head, stands up, and nearly falls flat on his face: He hasn't even taken those ridiculous high heels off. How much did I drink last night? he wonders. His glasses are on the breakfast bar; he pulls them on and is besieged by an urgent flurry of ideas demanding attention. He straightens his wig, picks up his skirts, and trips across to the door with a sinking feeling. Luckily his publicly traded reputation is strictly technical. + +He unlocks the door. "Who is it?" he asks in English. By way of reply somebody shoves the door in, hard. Manfred falls back against the wall, winded. His glasses stop working, sidelook displays filling with multicolored static. + +Two men charge in, identically dressed in jeans and leather jackets. They're wearing gloves and occlusive face masks, and one of them points a small and very menacing ID card at Manfred. A self-propelled gun hovers in the doorway, watching everything. "Where is he?" + +"Who?" gasps Manfred, breathless and terrified. + +"Macx." The other intruder steps into the living room quickly, pans around, ducks through the bathroom door. Aineko flops as limp as a dishrag in front of the sofa. The intruder checks out the bedroom: There's a brief scream, cut off short. + +"I don't know - who?" Manfred is choking with fear. + +The other intruder ducks out of the bedroom, waves a hand dismissively. + +"We are sorry to have bothered you," the man with the card says stiffly. He replaced it in his jacket pocket. "If you should see Manfred Macx, tell him that the Copyright Control Association of America advises him to cease and desist from his attempt to assist music thieves and other degenerate mongrel second-hander enemies of Objectivism. Reputations only of use to those alive to own them. Goodbye." + +The two copyright gangsters disappear through the door, leaving Manfred to shake his head dizzily while his glasses reboot. It takes him a moment to register the scream from the bedroom. "Fuck - Annette!" + +She appears in the open doorway, holding a sheet around her waist, looking angry and confused. "Annette!" he calls. She looks around, sees him, and begins to laugh shakily. "Annette!" He crosses over to her. "You're okay," he says. "You're okay." + +"You too." She hugs him, and she's shaking. Then she holds him at arm's length. "My, what a pretty picture!" + +"They wanted me," he says, and his teeth are chattering. "Why?" + +She looks up at him seriously. "You must bathe. Then have coffee. We are not at home, oui?" + +"Ah, oui." He looks down. Aineko is sitting up, looking dazed. "Shower. Then that dispatch for CIA news." + +"The dispatch?" She looks puzzled. "I filed that last night. When I was in the shower. The microphone, he is waterproof." + +* * * + +By the time Arianespace's security contractors show up, Manfred has stripped off Annette's evening gown and showered; he's sitting in the living room wearing a bathrobe, drinking a half-liter mug of espresso and swearing under his breath. + +While he was dancing the night away in Annette's arms, the global reputation market has gone nonlinear: People are putting their trust in the Christian Coalition and the Eurocommunist Alliance - always a sign that the times are bad - while perfectly sound trading enterprises have gone into free fall, as if a major bribery scandal has broken out. + +Manfred trades ideas for kudos via the Free Intellect Foundation, bastard child of George Soros and Richard Stallman. His reputation is cemented by donations to the public good that don't backfire. So he's offended and startled to discover that he's dropped twenty points in the past two hours - and frightened to see that this is by no means unusual. He was expecting a ten-point drop mediated via an options trade - payment for the use of the anonymous luggage remixer that routed his old suitcase to Mombasa and in return sent this new one to him via the left-luggage office in Luton - but this is more serious. The entire reputation market seems to have been hit by the confidence flu. + +Annette bustles around busily, pointing out angles and timings to the forensics team her head office sent in answer to her call for back-up. She seems more angry and shaken than worried by the intrusion. It's probably an occupational hazard for any upwardly mobile executive in the old, grasping network of greed that Manfred's agalmic future aims to supplant. The forensics dude and dudette, a pair of cute, tanned Lebanese youngsters, point the yellow snout of their mass spectroscope into various corners and agree that there's something not unlike gun oil in the air. But, so sorry, the intruders wore masks to trap the skin particles and left behind a spray of dust vacuumed from the seat of a city bus, so there's no way of getting a genotype match. Presently they agree to log it as a suspected corporate intrusion (origin: unclassified; severity: worrying) and increase the logging level on her kitchen telemetry. And remember to wear your earrings at all times, please. They leave, and Annette locks the door, leans against it, and curses for a whole long minute. + +"They gave me a message from the copyright control agency," Manfred says unevenly when she winds down. "Russian gangsters from New York bought the recording cartels a few years ago, you know? After the rights stitch-up fell apart, and the artists all went on-line while they focused on copy prevention technologies, the Mafiya were the only people who would buy the old business model. These guys add a whole new meaning to copy protection: This was just a polite cease and desist notice by their standards. They run the record shops, and they try to block any music distribution channel they don't own. Not very successfully, though - most gangsters are living in the past, more conservative than any normal businessman can afford to be. What was it that you put on the wire?" + +Annette closes her eyes. "I don't remember. No." She holds up a hand. "Open mike. I streamed you into a file and cut, cut out the bits about me." She opens her eyes and shakes her head. "What was I on?" + +"You don't know either?" + +He stands up, and she walks over and throws her arms around him. "I was on you," she murmurs. + +"Bullshit." He pulls away, then sees how this upsets her. Something is blinking for attention in his glasses; he's been off-line for the best part of six hours and is getting a panicky butterfly stomach at the idea of not being in touch with everything that's happened in the last twenty kiloseconds. "I need to know more. Something in that report rattled the wrong cages. Or someone ratted on the suitcase exchange - I meant the dispatch to be a heads-up for whoever needs a working state planning system, not an invitation to shoot me!" + +"Well, then." She lets go of him. "Do your work." Coolly: "I'll be around." + +He realizes that he's hurt her, but he doesn't see any way of explaining that he didn't mean to - at least, not without digging himself in deeper. He finishes his croissant and plunges into one of those unavoidable fits of deep interaction, fingers twitching on invisible keypads and eyeballs jiggling as his glasses funnel deep media straight into his skull through the highest bandwidth channel currently available. + +One of his e-mail accounts is halfway to the moon with automatic messages, companies with names like agalmic.holdings.root.8E.F0 screaming for the attention of their transitive director. Each of these companies - and there are currently more than sixteen thousand of them, although the herd is growing day by day - has three directors and is the director of three other companies. Each of them executes a script in a functional language Manfred invented; the directors tell the company what to do, and the instructions include orders to pass instructions on to their children. In effect, they are a flock of cellular automata, like the cells in Conway's Game of Life, only far more complex and powerful. + +Manfred's companies form a programmable grid. Some of them are armed with capital in the form of patents Manfred filed, then delegated rather than passing on to one of the Free Foundations. Some of them are effectively nontrading, but occupy directorial roles. Their corporate functions (such as filing of accounts and voting in new directors) are all handled centrally through his company-operating framework, and their trading is carried out via several of the more popular B2B enabler dot-coms. Internally, the companies do other, more obscure load-balancing computations, processing resource-allocation problems like a classic state central planning system. None of which explains why fully half of them have been hit by lawsuits in the past twenty-two hours. + +The lawsuits are ... random. That's the only pattern Manfred can detect. Some of them allege patent infringements; these he might take seriously, except that about a third of the targets are director companies that don't actually do anything visible to the public. A few lawsuits allege mismanagement, but then there's a whole bizarre raft of spurious nonsense: suits for wrongful dismissal or age discrimination - against companies with no employees - complaints about reckless trading, and one action alleging that the defendant (in conspiracy with the prime minister of Japan, the government of Canada, and the Emir of Kuwait) is using orbital mind-control lasers to make the plaintiff's pet chihuahua bark at all hours of day and night. + +Manfred groans and does a quick calculation. At the current rate, lawsuits are hitting his corporate grid at a rate of one every sixteen seconds - up from none in the preceding six months. In another day, this is going to saturate him. If it keeps up for a week, it'll saturate every court in the United States. Someone has found a means to do for lawsuits what he's doing for companies - and they've chosen him as their target. + +To say that Manfred is unamused is an understatement. If he wasn't already preoccupied with Annette's emotional state and edgy from the intrusion, he'd be livid - but he's still human enough that he responds to human stimuli first. So he determines to do something about it, but he's still flashing on the floating gun, her cross-dressing cool. + +Transgression, sex, and networks; these are all on his mind when Glashwiecz phones again. + +"Hello?" Manfred answers distractedly; he's busy pondering the lawsuit bot that's attacking his systems. + +"Macx! The elusive Mr. Macx!" Glashwiecz sounds positively overjoyed to have tracked down his target. + +Manfred winces. "Who is this?" he asks. + +"I called you yesterday," says the lawyer; "You should have listened." He chortles horribly. "Now I have you!" + +Manfred holds the phone away from his face, like something poisonous. "I'm recording this," he warns. "Who the hell are you and what do you want?" + +"Your wife has retained my partnership's services to pursue her interests in your divorce case. When I called you yesterday it was to point out without prejudice that your options are running out. I have an order, signed in court three days ago, to have all your assets frozen. These ridiculous shell companies notwithstanding, she's going to take you for exactly what you owe her. After tax, of course. She's very insistent on that point." + +Manfred glances round, puts his phone on hold for a moment: "Where's my suitcase?" he asks Aineko. The cat sidles away, ignoring him. "Shit." He can't see the new luggage anywhere. Quite possibly it's on its way to Morocco, complete with its priceless cargo of high-density noise. He returns his attention to the phone. Glashwiecz is droning on about equitable settlements, cumulative IRS tax demands - that seem to have materialized out of fantasy with Pam's imprimatur on them - and the need to make a clean breast of things in court and confess to his sins. "Where's the fucking suitcase?" He takes the phone off hold. "Shut the fuck up, please, I'm trying to think." + +"I'm not going to shut up! You're on the court docket already, Macx. You can't evade your responsibilities forever. You've got a wife and a helpless daughter to care for -" + +"A daughter?" That cuts right through Manfred's preoccupation with the suitcase. + +"Didn't you know?" Glashwiecz sounds pleasantly surprised. "She was decanted last Thursday. Perfectly healthy, I'm told. I thought you knew; you have viewing rights via the clinic webcam. Anyway, I'll just leave you with this thought - the sooner you come to a settlement, the sooner I can unfreeze your companies. Good-bye." + +The suitcase rolls into view, peeping coyly out from behind Annette's dressing table. Manfred breathes a sigh of relief and beckons to it; at the moment, it's easier to deal with his Plan B than dawn raids by objectivist gangsters, Annette's sulk, his wife's incessant legal spamming, and the news that he is a father against his will. "C'mon over here, you stray baggage. Let's see what I got for my reputation derivatives ..." + +* * * + +Anticlimax. + +Annette's communiqué is anodyne; a giggling confession off camera (shower-curtain rain in the background) that the famous Manfred Macx is in Paris for a weekend of clubbing, drugging, and general hell-raising. Oh, and he's promised to invent three new paradigm shifts before breakfast every day, starting with a way to bring about the creation of Really Existing Communism by building a state central planning apparatus that interfaces perfectly with external market systems and somehow manages to algorithmically outperform the Monte Carlo free-for-all of market economics, solving the calculation problem. Just because he can, because hacking economics is fun, and he wants to hear the screams from the Chicago School. + +Try as he may, Manfred can't see anything in the press release that is at all unusual. It's just the sort of thing he does, and getting it on the net was why he was looking for a CIA stringer in the first place. + +He tries to explain this to her in the bath as he soaps her back. "I don't understand what they're on about," he complains. "There's nothing that tipped them off - except that I was in Paris, and you filed the news. You did nothing wrong." + +"Mais oui." She turns round, slippery as an eel, and slides backward into the water. "I try to tell you this, but you are not listening." + +"I am now." Water droplets cling to the outside of his glasses, plastering his view of the room with laser speckle highlights. "I'm sorry, Annette, I brought this mess with me. I can take it out of your life." + +"No!" She rises up in front of him and leans forward, face serious. "I said yesterday. I want to be your manager. Take me in." + +"I don't need a manager; my whole thing is about being fast and out of control!" + +"You think you do not need a manager, but your companies do," she observes. "You have lawsuits, how many? You cannot the time to oversee them spare. The Soviets, they abolish capitalists, but even they need managers. Please, let me manage for you!" + +Annette is so intense about the idea that she becomes visibly aroused. He leans toward her, cups a hand around one taut nipple. "The company matrix isn't sold yet," he admits. + +"It is not?" She looks delighted. "Excellent! To who can this be sold, to Moscow? To SLORC? To -" + +"I was thinking of the Italian Communist Party," he says. "It's a pilot project. I was working on selling it - I need the money for my divorce, and to close the deal on the luggage - but it's not that simple. Someone has to run the damn thing - someone with a keen understanding of how to interface a central planning system with a capitalist economy. A system administrator with experience of working for a multinational corporation would be perfect, ideally with an interest in finding new ways and means of interfacing the centrally planned enterprise to the outside world." He looks at her with suddenly dawning surmise. "Um, are you interested?" + +* * * + +Rome is hotter than downtown Columbia, South Carolina, over Thanksgiving weekend; it stinks of methane-burning Skodas with a low undertone of cooked dog shit. The cars are brightly colored subcompact missiles, hurtling in and out of alleyways like angry wasps: Hot-wiring their drive-by-wire seems to be the national sport, although Fiat's embedded systems people have always written notoriously wobbly software. + +Manfred emerges from the Stazione Termini into dusty sunlight, blinking like an owl. His glasses keep up a rolling monologue about who lived where in the days of the late Republic. They're stuck on a tourist channel and won't come unglued from that much history without a struggle. Manfred doesn't feel like a struggle right now. He feels like he's been sucked dry over the weekend: a light, hollow husk that might blow away in a stiff breeze. He hasn't had a patentable idea all day. This is not a good state to be in on a Monday morning when he's due to meet the former Minister for Economic Affairs, in order to give him a gift that will probably get the minister a shot at higher office and get Pam's lawyer off his back. But somehow he can't bring himself to worry too much: Annette has been good for him. + +The ex-minister's private persona isn't what Manfred was expecting. All Manfred has seen so far is a polished public avatar in a traditionally cut suit, addressing the Chamber of Deputies in cyberspace; which is why, when he rings the doorbell set in the whitewashed doorframe of Gianni's front door, he isn't expecting a piece of Tom of Finland beefcake, complete with breechclout and peaked leather cap, to answer. + +"Hello, I am here to see the minister," Manfred says carefully. Aineko, perched on his left shoulder, attempts to translate: It trills something that sounds extremely urgent. Everything sounds urgent in Italian. + +"It's okay, I'm from Iowa," says the guy in the doorway. He tucks a thumb under one leather strap and grins over his moustache: "What's it about?" Over his shoulder: "Gianni! Visitor!" + +"It's about the economy," Manfred says carefully. "I'm here to make it obsolete." + +The beefcake backs away from the door cautiously - then the minister appears behind him. "Ah, signore Macx! It's okay, Johnny, I have been expecting him." Gianni extends a rapid welcome, like a hyperactive gnome buried in a white toweling bathrobe: "Please come in, my friend! I'm sure you must be tired from your journey. A refreshment for the guest if you please, Johnny. Would you prefer coffee or something stronger?" + +Five minutes later, Manfred is buried up to his ears in a sofa covered in buttery white cowhide, a cup of virulently strong espresso balanced precariously on his knee, while Gianni Vittoria himself holds forth on the problems of implementing a postindustrial ecosystem on top of a bureaucratic system with its roots in the bullheadedly modernist era of the 1920s. Gianni is a visionary of the left, a strange attractor within the chaotic phase-space of Italian politics. A former professor of Marxist economics, his ideas are informed by a painfully honest humanism, and everyone - even his enemies - agrees that he is one of the greatest theoreticians of the post-EU era. But his intellectual integrity prevents him from rising to the very top, and his fellow travelers are much ruder about him than his ideological enemies, accusing him of the ultimate political crime — valuing truth over power. + +Manfred had met Gianni a couple of years earlier via a hosted politics chat room; at the beginning of last week, he sent him a paper detailing his embeddable planned economy and a proposal for using it to turbocharge the endless Italian attempt to re-engineer its government systems. This is the thin end of the wedge: If Manfred is right, it could catalyse a whole new wave of communist expansion, driven by humanitarian ideals and demonstrably superior performance, rather than wishful thinking and ideology. + +"It is impossible, I fear. This is Italy, my friend. Everybody has to have their say. Not everybody even understands what it is we are talking about, but that won't stop them talking about it. Since 1945, our government requires consensus - a reaction to what came before. Do you know, we have five different routes to putting forward a new law, two of them added as emergency measures to break the gridlock? And none of them work on their own unless you can get everybody to agree. Your plan is daring and radical, but if it works, we must understand why we work - and that digs right to the root of being human, and not everybody will agree." + +At this point Manfred realizes that he's lost. "I don't understand," he says, genuinely puzzled. "What has the human condition got to do with economics?" + +The minister sighs abruptly. "You are very unusual. You earn no money, do you? But you are rich, because grateful people who have benefited from your work give you everything you need. You are like a medieval troubadour who has found favor with the aristocracy. Your labor is not alienated - it is given freely, and your means of production is with you always, inside your head." Manfred blinks; the jargon is weirdly technical-sounding but orthogonal to his experience, offering him a disquieting glimpse into the world of the terminally future-shocked. He is surprised to find that not understanding itches. + +Gianni taps his balding temple with a knuckle like a walnut. "Most people spend little time inside their heads. They don't understand how you live. They're like medieval peasants looking in puzzlement at the troubadour. This system you invent, for running a planned economy, is delightful and elegant: Lenin's heirs would have been awestruck. But it is not a system for the new century. It is not human." + +Manfred scratches his head. "It seems to me that there's nothing human about the economics of scarcity," he says. "Anyway, humans will be obsolete as economic units within a couple more decades. All I want to do is make everybody rich beyond their wildest dreams before that happens." A pause for a sip of coffee, and to think, one honest statement deserves another: "And to pay off a divorce settlement." + +"Ye-es? Well, let me show you my library, my friend," he says, standing up. "This way." + +Gianni ambles out of the white living room with its carnivorous leather sofas, and up a cast-iron spiral staircase that nails some kind of upper level to the underside of the roof. "Human beings aren't rational," he calls over his shoulder. "That was the big mistake of the Chicago School economists, neoliberals to a man, and of my predecessors, too. If human behavior was logical, there would be no gambling, hmm? The house always wins, after all." The staircase debouches into another airy whitewashed room, where one wall is occupied by a wooden bench supporting a number of ancient, promiscuously cabled servers and a very new, eye-wateringly expensive solid volume renderer. Opposite the bench is a wall occupied from floor to ceiling by bookcases: Manfred looks at the ancient, low-density medium and sneezes, momentarily bemused by the sight of data density measured in kilograms per megabyte rather than vice versa. + +"What's it fabbing?" Manfred asks, pointing at the renderer, which is whining to itself and slowly sintering together something that resembles a carriage clockmaker's fever dream of a spring-powered hard disk drive. + +"Oh, one of Johnny's toys - a micromechanical digital phonograph player," Gianni says dismissively. "He used to design Babbage engines for the Pentagon - stealth computers. (No van Eck radiation, you know.) Look." He carefully pulls a fabric-bound document out of the obsolescent data wall and shows the spine to Manfred: "On the Theory of Games, by John von Neumann. Signed first edition." + +Aineko meeps and dumps a slew of confusing purple finite state automata into Manfred's left eye. The hardback is dusty and dry beneath his fingertips as he remembers to turn the pages gently. "This copy belonged to the personal library of Oleg Kordiovsky. A lucky man is Oleg: He bought it in 1952, while on a visit to New York, and the MVD let him to keep it." + +"He must be -" Manfred pauses. More data, historical time lines. "Part of GosPlan?" + +"Correct." Gianni smiles thinly. "Two years before the central committee denounced computers as bourgeois deviationist pseudoscience intended to dehumanize the proletarian. They recognized the power of robots even then. A shame they did not anticipate the compiler or the Net." + +"I don't understand the significance. Nobody back then could expect that the main obstacle to doing away with market capitalism would be overcome within half a century, surely?" + +"Indeed not. But it's true: Since the 1980s, it has been possible - in principle - to resolve resource allocation problems algorithmically, by computer, instead of needing a market. Markets are wasteful: They allow competition, much of which is thrown on the scrap heap. So why do they persist?" + +Manfred shrugs. "You tell me. Conservativism?" + +Gianni closes the book and puts it back on the shelf. "Markets afford their participants the illusion of free will, my friend. You will find that human beings do not like being forced into doing something, even if it is in their best interests. Of necessity, a command economy must be coercive - it does, after all, command." + +"But my system doesn't! It mediates where supplies go, not who has to produce what -" + +Gianni is shaking his head. "Backward chaining or forward chaining, it is still an expert system, my friend. Your companies need no human beings, and this is a good thing, but they must not direct the activities of human beings, either. If they do, you have just enslaved people to an abstract machine, as dictators have throughout history." + +Manfred's eyes scan along the bookshelf. "But the market itself is an abstract machine! A lousy one, too. I'm mostly free of it - but how long is it going to continue oppressing people?" + +"Maybe not as long as you fear." Gianni sits down next to the renderer, which is currently extruding the inference mill of the analytical engine. "The marginal value of money decreases, after all: The more you have, the less it means to you. We are on the edge of a period of prolonged economic growth, with annual averages in excess of twenty percent, if the Council of Europe's predictor metrics are anything to go by. The last of the flaccid industrial economy has withered away, and this era's muscle of economic growth, what used to be the high-technology sector, is now everything. We can afford a little wastage, my friend, if that is the price of keeping people happy until the marginal value of money withers away completely." + +Realization dawns. "You want to abolish scarcity, not just money!" + +"Indeed." Gianni grins. "There's more to that than mere economic performance; you have to consider abundance as a factor. Don't plan the economy; take things out of the economy. Do you pay for the air you breathe? Should uploaded minds - who will be the backbone of our economy, by and by - have to pay for processor cycles? No and no. Now, do you want to know how you can pay for your divorce settlement? And can I interest you, and your interestingly accredited new manager, in a little project of mine?" + +* * * + +The shutters are thrown back, the curtains tied out of the way, and Annette's huge living room windows are drawn open in the morning breeze. + +Manfred sits on a leather-topped piano stool, his suitcase open at his feet. He's running a link from the case to Annette's stereo, an antique stand-alone unit with a satellite Internet uplink. Someone has chipped it, crudely revoking its copy protection algorithm: The back of its case bears scars from the soldering iron. Annette is curled up on the huge sofa, wrapped in a kaftan and a pair of high-bandwidth goggles, thrashing out an internal Arianespace scheduling problem with some colleagues in Iran and Guyana. + +His suitcase is full of noise, but what's coming out of the stereo is ragtime. Subtract entropy from a data stream - coincidentally uncompressing it - and what's left is information. With a capacity of about a trillion terabytes, the suitcase's holographic storage reservoir has enough capacity to hold every music, film, and video production of the twentieth century with room to spare. This is all stuff that is effectively out of copyright control, work-for-hire owned by bankrupt companies, released before the CCAA could make their media clampdown stick. Manfred is streaming the music through Annette's stereo - but keeping the noise it was convoluted with. High-grade entropy is valuable, too ... + +Presently, Manfred sighs and pushes his glasses up his forehead, killing the displays. He's thought his way around every permutation of what's going on, and it looks like Gianni was right: There's nothing left to do but wait for everyone to show up. + +For a moment, he feels old and desolate, as slow as an unassisted human mind. Agencies have been swapping in and out of his head for the past day, ever since he got back from Rome. He's developed a butterfly attention span, irritable and unable to focus on anything while the information streams fight it out for control of his cortex, arguing about a solution to his predicament. Annette is putting up with his mood swings surprisingly calmly. He's not sure why, but he glances her way fondly. Her obsessions run surprisingly deep, and she's quite clearly using him for her own purposes. So why does he feel more comfortable around her than he did with Pam? + +She stretches and pushes her goggles up. "Oui?" + +"I was just thinking." He smiles. "Three days and you haven't told me what I should be doing with myself, yet." + +She pulls a face. "Why would I do that?" + +"Oh, no reason. I'm just not over - " He shrugs uncomfortably. There it is, an inexplicable absence in his life, but not one he feels he urgently needs to fill yet. Is this what a relationship between equals feels like? He's not sure: Starting with the occlusive cocooning of his upbringing and continuing through all his adult relationships, he's been effectively - voluntarily - dominated by his partners. Maybe the antisubmissive conditioning is working, after all. But if so, why the creative malaise? Why isn't he coming up with original new ideas this week? Could it be that his peculiar brand of creativity is an outlet, that he needs the pressure of being lovingly enslaved to make him burst out into a great flowering of imaginative brilliance? Or could it be that he really is missing Pam? + +Annette stands up and walks over, slowly. He looks at her and feels lust and affection, and isn't sure whether or not this is love. "When are they due?" she asks, leaning over him. + +"Any -" The doorbell chimes. + +"Ah. I will get that." She stalks away, opens the door. + +"You!" + +Manfred's head snaps round as if he's on a leash. Her leash: But he wasn't expecting her to come in person. + +"Yes, me," Annette says easily. "Come in. Be my guest." + +Pam enters the apartment living room with flashing eyes, her tame lawyer in tow. "Well, look what the robot kitty dragged in," she drawls, fixing Manfred with an expression that owes more to anger than to humor. It's not like her, this blunt hostility, and he wonders where it came from. + +Manfred rises. For a moment he's transfixed by the sight of his dominatrix wife, and his - mistress? conspirator? lover? - side by side. The contrast is marked: Annette's expression of ironic amusement a foil for Pamela's angry sincerity. Somewhere behind them stands a balding middle-aged man in a suit, carrying a folio: just the kind of diligent serf Pam might have turned him into, given time. Manfred musters up a smile. "Can I offer you some coffee?" he asks. "The party of the third part seems to be late." + +"Coffee would be great, mine's dark, no sugar," twitters the lawyer. He puts his briefcase down on a side table and fiddles with his wearable until a light begins to blink from his spectacle frames: "I'm recording this, I'm sure you understand." + +Annette sniffs and heads for the kitchen, which is charmingly manual but not very efficient; Pam is pretending she doesn't exist. "Well, well, well." She shakes her head. "I'd expected better of you than a French tart's boudoir, Manny. And before the ink's dry on the divorce - these days that'll cost you, didn't you think of that?" + +"I'm surprised you're not in the hospital," he says, changing the subject. "Is postnatal recovery outsourced these days?" + +"The employers." She slips her coat off her shoulders and hangs it behind the broad wooden door. "They subsidize everything when you reach my grade." Pamela is wearing a very short, very expensive dress, the kind of weapon in the war between the sexes that ought to come with an end-user certificate: But to his surprise it has no effect on him. He realizes that he's completely unable to evaluate her gender, almost as if she's become a member of another species. "As you'd be aware if you'd been paying attention." + +"I always pay attention, Pam. It's the only currency I carry." + +"Very droll, ha-ha," interrupts Glashwiecz. "You do realize that you're paying me while I stand here listening to this fascinating byplay?" + +Manfred stares at him. "You know I don't have any money." + +"Ah," Glashwiecz smiles, "but you must be mistaken. Certainly the judge will agree with me that you must be mistaken - all a lack of paper documentation means is that you've covered your trail. There's the small matter of the several thousand corporations you own, indirectly. Somewhere at the bottom of that pile there has got to be something, hasn't there?" + +A hissing, burbling noise like a sackful of large lizards being drowned in mud emanates from the kitchen, suggesting that Annette's percolator is nearly ready. Manfred's left hand twitches, playing chords on an air keyboard. Without being at all obvious, he's releasing a bulletin about his current activities that should soon have an effect on the reputation marketplace. "Your attack was rather elegant," he comments, sitting down on the sofa as Pam disappears into the kitchen. + +Glashwiecz nods. "The idea was one of my interns'," he says. "I don't understand this distributed denial of service stuff, but Lisa grew up on it. Something about it being a legal travesty, but workable all the same." + +"Uh-huh." Manfred's opinion of the lawyer drops a notch. He notices Pam reappearing from the kitchen, her expression icy. A moment later Annette surfaces carrying a jug and some cups, beaming innocently. Something's going on, but at that moment, one of his agents nudges him urgently in the left ear, his suitcase keens mournfully and beams a sense of utter despair at him, and the doorbell rings again. + +"So what's the scam?" Glashwiecz sits down uncomfortably close to Manfred and murmurs out of one side of his mouth. "Where's the money?" + +Manfred looks at him irritably. "There is no money," he says. "The idea is to make money obsolete. Hasn't she explained that?" His eyes wander, taking in the lawyer's Patek Philippe watch, his Java-enabled signet ring. + +"C'mon. Don't give me that line. Look, all it takes is a couple of million, and you can buy your way free for all I care. All I'm here for is to see that your wife and daughter don't get left penniless and starving. You know and I know that you've got bags of it stuffed away - just look at your reputation! You didn't get that by standing at the roadside with a begging bowl, did you?" + +Manfred snorts. "You're talking about an elite IRS auditor here. She isn't penniless; she gets a commission on every poor bastard she takes to the cleaners, and she was born with a trust fund. Me, I -" The stereo bleeps. Manfred pulls his glasses on. Whispering ghosts of dead artists hum through his earlobes, urgently demanding their freedom. Someone knocks at the door again, and he glances around to see Annette walking toward it. + +"You're making it hard on yourself," Glashwiecz warns. + +"Expecting company?" Pam asks, one brittle eyebrow raised in Manfred's direction. + +"Not exactly -" + +Annette opens the door and a couple of guards in full SWAT gear march in. They're clutching gadgets that look like crosses between digital sewing machines and grenade launchers, and their helmets are studded with so many sensors that they resemble 1950s space probes. "That's them," Annette says clearly. + +"Mais Oui." The door closes itself and the guards stand to either side. Annette stalks toward Pam. + +"You think to walk in here, to my pied-a-terre, and take from Manfred?" she sniffs. + +"You're making a big mistake, lady," Pam says, her voice steady and cold enough to liquefy helium. + +A burst of static from one of the troopers. "No," Annette says distantly. "No mistake." + +She points at Glashwiecz. "Are you aware of the takeover?" + +"Takeover?" The lawyer looks puzzled, but not alarmed by the presence of the guards. + +"As of three hours ago," Manfred says quietly, "I sold a controlling interest in agalmic.holdings.root.1.1.1 to Athene Accelerants BV, a venture capital outfit from Maastricht. One dot one dot one is the root node of the central planning tree. Athene aren't your usual VC, they're accelerants - they take explosive business plans and detonate them." Glashwiecz is looking pale - whether with anger or fear of a lost commission is impossible to tell. "Actually, Athene Accelerants is owned by a shell company owned by the Italian Communist Party's pension trust. The point is, you're in the presence of one dot one dot one's chief operations officer." + +Pam looks annoyed. "Puerile attempts to dodge responsibility -" + +Annette clears her throat. "Exactly who do you think you are trying to sue?" she asks Glashwiecz sweetly. "Here we have laws about unfair restraint of trade. Also about foreign political interference, specifically in the financial affairs of an Italian party of government." + +"You wouldn't -" + +"I would." Manfred brushes his hands on his knees and stands up. "Done, yet?" he asks the suitcase. + +Muffled beeps, then a gravelly synthesized voice speaks. "Uploads completed." + +"Ah, good." He grins at Annette. "Time for our next guests?" + +On cue, the doorbell rings again. The guards sidle to either side of the door. Annette snaps her fingers, and it opens to admit a pair of smartly dressed thugs. It's beginning to get crowded in the living room. + +"Which one of you is Macx?" snaps the older one of the two thugs, staring at Glashwiecz for no obvious reason. He hefts an aluminum briefcase. "Got a writ to serve." + +"You'd be the CCAA?" asks Manfred. + +"You bet. If you're Macx, I have a restraining order -" + +Manfred raises a hand. "It's not me you want," he says. "It's this lady." He points at Pam, whose mouth opens in silent protest. "Y'see, the intellectual property you're chasing wants to be free. It's so free that it's now administered by a complex set of corporate instruments lodged in the Netherlands, and the prime shareholder as of approximately four minutes ago is my soon-to-be-ex-wife Pamela, here." He winks at Glashwiecz. "Except she doesn't control anything." + +"Just what do you think you're playing at, Manfred?" Pamela snarls, unable to contain herself any longer. The guards shuffle: The larger, junior CCAA enforcer tugs at his boss's jacket nervously. + +"Well." Manfred picks up his coffee and takes a sip. Grimaces. "Pam wanted a divorce settlement, didn't she? The most valuable assets I own are the rights to a whole bunch of recategorized work-for-hire that slipped through the CCAA's fingers a few years back. Part of the twentieth century's cultural heritage that got locked away by the music industry in the last decade - Janis Joplin, the Doors, that sort of thing. Artists who weren't around to defend themselves anymore. When the music cartels went bust, the rights went for a walk. I took them over originally with the idea of setting the music free. Giving it back to the public domain, as it were." + +Annette nods at the guards, one of whom nods back and starts muttering and buzzing into a throat mike. Manfred continues. "I was working on a solution to the central planning paradox - how to interface a centrally planned enclave to a market economy. My good friend Gianni Vittoria suggested that such a shell game could have alternative uses. So I've not freed the music. Instead, I signed the rights over to various actors and threads running inside the agalmic holdings network - currently one million, forty-eight thousand, five hundred and seventy-five companies. They swap rights rapidly - the rights to any given song are resident in a given company for, oh, all of fifty milliseconds at a time. Now understand, I don't own these companies. I don't even have a financial interest in them anymore. I've deeded my share of the profits to Pam, here. I'm getting out of the biz, Gianni's suggested something rather more challenging for me to do instead." + +He takes another mouthful of coffee. The recording Mafiya goon glares at him. Pam glares at him. Annette stands against one wall, looking amused. "Perhaps you'd like to sort it out between you?" he asks. Aside, to Glashwiecz: "I trust you'll drop your denial of service attack before I set the Italian parliament on you? By the way, you'll find the book value of the intellectual property assets I deeded to Pamela - by the value these gentlemen place on them - is somewhere in excess of a billion dollars. As that's rather more than ninety-nine-point-nine percent of my assets, you'll probably want to look elsewhere for your fees." + +Glashwiecz stands up carefully. The lead goon stares at Pamela. "Is this true?" he demands. "This little squirt give you IP assets of Sony Bertelsmann Microsoft Music? We have claim! You come to us for distribution or you get in deep trouble." + +The second goon rumbles agreement: "Remember, dose MP3s, dey bad for you health!" + +Annette claps her hands. "If you would to leave my apartment, please?" The door, attentive as ever, swings open: "You are no longer welcome here!" + +"This means you," Manfred advises Pam helpfully. + +"You bastard," she spits at him. + +Manfred forces a smile, bemused by his inability to respond to her the way she wants. Something's wrong, missing, between them. "I thought you wanted my assets. Are the encumbrances too much for you?" + +"You know what I mean! You and that two-bit Euro-whore! I'll nail you for child neglect!" + +His smile freezes. "Try it, and I'll sue you for breach of patent rights. My genome, you understand." + +Pam is taken aback by this. "You patented your own genome? What happened to the brave new communist, sharing information freely?" + +Manfred stops smiling. "Divorce happened. And the Italian Communist Party happened." + +She turns on her heel and stalks out of the apartment bravely, tame attorney in tow behind her, muttering about class action lawsuits and violations of the Digital Millennium Copyright Act. The CCAA lawyer's tame gorilla makes a grab for Glashwiecz's shoulder, and the guards move in, hustling the whole movable feast out into the stairwell. The door slams shut on a chaos of impending recursive lawsuits, and Manfred breathes a huge wheeze of relief. + +Annette walks over to him and leans her chin on the top of his head. "Think it will work?" she asks. + +"Well, the CCAA will sue the hell out of the company network for a while if they try to distribute by any channel that isn't controlled by the Mafiya. Pam gets rights to all the music, her settlement, but she can't sell it without going through the mob. And I got to serve notice on that legal shark: If he tries to take me on he's got to be politically bullet-proof. Hmm. Maybe I ought not to plan on going back to the USA this side of the singularity." + +"Profits," Annette sighs, "I do not easily understand this way of yours. Or this apocalyptic obsession with singularity." + +"Remember the old aphorism, if you love something, set it free? I freed the music." + +"But you didn't! You signed rights over -" + +"But first I uploaded the entire stash to several cryptographically anonymized public network filesystems over the past few hours, so there'll be rampant piracy. And the robot companies are all set to automagically grant any and every copyright request they receive, royalty-free, until the goons figure out how to hack them. But that's not the point. The point is abundance. The Mafiya can't stop it being distributed. Pam is welcome to her cut if she can figure an angle - but I bet she can't. She still believes in classical economics, the allocation of resources under conditions of scarcity. Information doesn't work that way. What matters is that people will be able to hear the music - instead of a Soviet central planning system, I've turned the network into a firewall to protect freed intellectual property." + +"Oh, Manfred, you hopeless idealist." She strokes his shoulder. "Whatever for?" + +"It's not just the music. When we develop a working AI or upload minds we'll need a way of defending it against legal threats. That's what Gianni pointed out to me ..." + +He's still explaining to her how he's laying the foundations for the transhuman explosion due early in the next decade when she picks him up in both arms, carries him to her bedroom, and commits outrageous acts of tender intimacy with him. But that's okay. He's still human, this decade. + +This, too, will pass, thinks the bulk of his metacortex. And it drifts off into the net to think deep thoughts elsewhere, leaving his meatbody to experience the ancient pleasures of the flesh set free. + +Chapter 3: Tourist + +Spring-Heeled Jack runs blind, blue fumes crackling from his heels. His right hand, outstretched for balance, clutches a mark's stolen memories. The victim is sitting on the hard stones of the pavement behind him. Maybe he's wondering what's happened; maybe he looks after the fleeing youth. But the tourist crowds block the view effectively, and in any case, he has no hope of catching the mugger. Hit-and-run amnesia is what the polis call it, but to Spring-Heeled Jack it's just more loot to buy fuel for his Russian army-surplus motorized combat boots. + +* * * + +The victim sits on the cobblestones clutching his aching temples. What happened? he wonders. The universe is a brightly colored blur of fast-moving shapes augmented by deafening noises. His ear-mounted cameras are rebooting repeatedly: They panic every eight hundred milliseconds, whenever they realize that they're alone on his personal area network without the comforting support of a hub to tell them where to send his incoming sensory feed. Two of his mobile phones are bickering moronically, disputing ownership of his grid bandwidth, and his memory ... is missing. + +A tall blond clutching an electric chainsaw sheathed in pink bubble wrap leans over him curiously: "you all right?" she asks. + +"I -" He shakes his head, which hurts. "Who am I?" His medical monitor is alarmed because his blood pressure has fallen: His pulse is racing, his serum cortisol titer is up, and a host of other biometrics suggest that he's going into shock. + +"I think you need an ambulance," the woman announces. She mutters at her lapel, "Phone, call an ambulance. " She waves a finger vaguely at him as if to reify a geolink, then wanders off, chain-saw clutched under one arm. Typical southern émigré behavior in the Athens of the North, too embarrassed to get involved. The man shakes his head again, eyes closed, as a flock of girls on powered blades skid around him in elaborate loops. A siren begins to warble, over the bridge to the north. + +Who am I? he wonders. "I'm Manfred," he says with a sense of stunned wonder. He looks up at the bronze statue of a man on a horse that looms above the crowds on this busy street corner. Someone has plastered a Hello Cthulhu! holo on the plaque that names its rider: Languid fluffy pink tentacles wave at him in an attack of kawaii. "I'm Manfred - Manfred. My memory. What's happened to my memory?" Elderly Malaysian tourists point at him from the open top deck of a passing bus. He burns with a sense of horrified urgency. I was going somewhere, he recalls. What was I doing? It was amazingly important, he thinks, but he can't remember what exactly it was. He was going to see someone about - it's on the tip of his tongue - + +* * * + +_1 Welcome to the eve of the third decade: a time of chaos characterized by an all-out depression in the space industries. + +_1 Most of the thinking power on the planet is now manufactured rather than born; there are ten microprocessors for every human being, and the number is doubling every fourteen months. Population growth in the developing world has stalled, the birth rate dropping below replacement level. In the wired nations, more forward-looking politicians are looking for ways to enfranchise their nascent AI base. + +_1 Space exploration is still stalled on the cusp of the second recession of the century. The Malaysian government has announced the goal of placing an imam on Mars within ten years, but nobody else cares enough to try. + +_1 The Space Settlers Society is still trying to interest Disney Corp. in the media rights to their latest L5 colony plan, unaware that there's already a colony out there and it isn't human: First-generation uploads, Californian spiny lobsters in wobbly symbiosis with elderly expert systems, thrive aboard an asteroid mining project established by the Franklin Trust. Meanwhile, Chinese space agency cutbacks are threatening the continued existence of Moonbase Mao. Nobody, it seems, has figured out how to turn a profit out beyond geosynchronous orbit. + +_1 Two years ago, JPL, the ESA, and the uploaded lobster colony on comet Khrunichev-7 picked up an apparently artificial signal from outside the solar system; most people don't know, and of those who do, even fewer care. After all, if humans can't even make it to Mars, who cares what's going on a hundred trillion kilometers farther out? + +* * * + +Portrait of a wasted youth: + +Jack is seventeen years and eleven months old. He has never met his father; he was unplanned, and Dad managed to kill himself in a building-site accident before the Child Support could garnish his income for the upbringing. His mother raised him in a two-bedroom housing association flat in Hawick. She worked in a call center when he was young, but business dried up: Humans aren't needed on the end of a phone anymore. Now she works in a drop-in business shop, stacking shelves for virtual fly-by-nights that come and go like tourists in the Festival season - but humans aren't in demand for shelf stacking either, these days. + +His mother sent Jack to a local religious school, where he was regularly excluded and effectively ran wild from the age of twelve. By thirteen, he was wearing a parole cuff for shoplifting; by fourteen, he'd broken his collarbone in a car crash while joyriding and the dour Presbyterian sheriff sent him to the Wee Frees, who completed the destruction of his educational prospects with high principles and an illicit tawse. + +Today, he's a graduate of the hard school of avoiding public surveillance cameras, with distinctions in steganographic alibi construction. Mostly this entails high-density crime - if you're going to mug someone, do so where there are so many bystanders that they can't pin the blame on you. But the polis expert systems are on his tail. If he keeps it up at this rate, in another four months they'll have a positive statistical correlation that will convince even a jury of his peers that he's guilty as fuck - and then he'll go down to Saughton for four years. + +But Jack doesn't understand the meaning of a Gaussian distribution or the significance of a chi-square test, and the future still looks bright to him as he pulls on the chunky spectacles he ripped off the tourist gawking at the statue on North Bridge. And after a moment, when they begin whispering into his ears in stereo and showing him pictures of the tourist's vision, it looks even brighter. + +"Gotta make a deal, gotta close a deal," whisper the glasses. "Meet the borg, strike a chord." Weird graphs in lurid colors are filling up his peripheral vision, like the hallucinations of a drugged marketroid. + +"Who the fuck are ye?" asks Jack, intrigued by the bright lights and icons. + +"I am your Cartesian theatre and you are our focus," murmur the glasses. "Dow Jones down fifteen points, Federated Confidence up three, incoming briefing on causal decoupling of social control of skirt hem lengths, shaving pattern of beards, and emergence of multidrug antibiotic resistance in Gram-negative bacilli: Accept?" + +"Ah can take it," Jack mumbles, as a torrent of images crashes down on his eyeballs and jackhammers its way in through his ears like the superego of a disembodied giant. Which is actually what he's stolen: The glasses and waist pouch he grabbed from the tourist are stuffed with enough hardware to run the entire Internet, circa the turn of the millennium. They've got bandwidth coming out the wazoo, distributed engines running a bazillion inscrutable search tasks, and a whole slew of high-level agents that collectively form a large chunk of the society of mind that is their owner's personality. Their owner is a posthuman genius loci of the net, an agalmic entrepreneur turned policy wonk, specializing in the politics of AI emancipation. When he was in the biz he was the kind of guy who catalysed value wherever he went, leaving money trees growing in his footprints. Now he's the kind of political backroom hitter who builds coalitions where nobody else could see common ground. And Jack has stolen his memories. There are microcams built into the frame of the glasses, pickups in the earpieces; everything is spooled into the holographic cache in the belt pack, before being distributed for remote storage. At four months per terabyte, memory storage is cheap. What makes this bunch so unusual is that their owner - Manfred - has cross-indexed them with his agents. Mind uploading may not be a practical technology yet, but Manfred has made an end run on it already. + +In a very real sense, the glasses are Manfred, regardless of the identity of the soft machine with its eyeballs behind the lenses. And it is a very puzzled Manfred who picks himself up and, with a curious vacancy in his head - except for a hesitant request for information about accessories for Russian army boots - dusts himself off and heads for his meeting on the other side of town. + +* * * + +Meanwhile, in another meeting, Manfred's absence is already being noticed. "Something, something is wrong," says Annette. She raises her mirrorshades and rubs her left eye, visibly worried. "Why is he not answering his chat? He knows we are due to hold this call with him. Don't you think it is odd?" + +Gianni nods and leans back, regarding her from behind his desk. He prods at the highly polished rosewood desktop. The wood grain slips, sliding into a strangely different conformation, generating random dot stereoisograms - messages for his eyes only. "He was visiting Scotland for me," he says after a moment. "I do not know his exact whereabouts - the privacy safeguards - but if you, as his designated next of kin, travel in person, I am sure you will find it easier. He was going to talk to the Franklin Collective, face-to-face, one to many ..." + +The office translator is good, but it can't provide real-time lip-synch morphing between French and Italian. Annette has to make an effort to listen to his words because the shape of his mouth is all wrong, like a badly dubbed video. Her expensive, recent implants aren't connected up to her Broca's area yet, so she can't simply sideload a deep grammar module for Italian. Their communications are the best that money can buy, their VR environment painstakingly sculpted, but it still doesn't break down the language barrier completely. Besides, there are distractions: the way the desk switches from black ash to rosewood halfway across its expanse, the strange air currents that are all wrong for a room this size. "Then what could be up with him? His voicemail is trying to cover for him. It is good, but it does not lie convincingly." + +Gianni looks worried. "Manfred is prone to fits of do his own thing with telling nobody in advance. But I don't like this. He should have to told one of us first." Ever since that first meeting in Rome, when Gianni offered him a job, Manfred has been a core member of Gianni's team, the fixer who goes out and meets people and solves their problems. Losing him at this point could be more than embarrassing. Besides, he's a friend. + +"I do not like this either." She stands up. "If he doesn't call back soon -" + +"You'll go and fetch him." + +"Oui." A smile flashes across her face, rapidly replaced by worry lines. "What can have happened?" + +"Anything. Nothing." Gianni shrugs. "But we cannot do without him." He casts her a warning glance. "Or you. Don't let the borg get you. Either of you." + +"Not to worry, I will just bring him back, whatever has happened." She stands up, surprising a vacuum cleaner that skulks behind her desk. "Au revoir!" + +"Ciao." + +As she vacates her office, the minister flickers off behind her, leaving the far wall the dull gray of a cold display panel. Gianni is in Rome, she's in Paris, Markus is in Düsseldorf, and Eva's in Wroclaw. There are others, trapped in digital cells scattered halfway across an elderly continent, but as long as they don't try to shake hands, they're free to shout across the office at each other. Their confidences and dirty jokes tunnel through multiple layers of anonymized communication. + +Gianni is trying to make his break out of regional politics and into European national affairs: Their job - his election team - is to get him a seat on the Confederacy Commission, as Representative for Intelligence Oversight, and push the boundaries of post-humanistic action outward, into deep space and deeper time. Which makes the loss of a key team player, the house futurologist and fixer, profoundly interesting to certain people: The walls have ears, and not all the brains they feed into are human. + +Annette is more worried than she's letting on to Gianni. It's unlike Manfred to be out of contact for long and even odder for his receptionist to stonewall her, given that her apartment is the nearest thing to a home he's had for the past couple of years. But something smells fishy. He sneaked out last night, saying it would be an overnight trip, and now he's not answering. Could it be his ex-wife? she wonders, despite Gianni's hints about a special mission. But there's been no word from Pamela other than the sarcastic cards she dispatches every year without fail, timed to arrive on the birthday of the daughter Manfred has never met. The music Mafiya? A letter bomb from the Copyright Control Association of America? But no, his medical monitor would have been screaming its head off if anything like that had happened. + +Annette has organized things so that he's safe from the intellectual property thieves. She's lent him the support he needs, and he's helped her find her own path. She gets a warm sense of happiness whenever she considers how much they've achieved together. But that's exactly why she's worried now. The watchdog hasn't barked ... + +Annette summons a taxi to Charles de Gaulle. By the time she arrives, she's already used her parliamentary carte to bump an executive-class seat on the next A320 to Turnhouse, Edinburgh's airport, and scheduled accommodation and transport for her arrival. The plane is climbing out over la Manche before the significance of Gianni's last comment hits her: Might he think the Franklin Collective could be dangerous to Manfred? + +* * * + +The hospital emergency suite has a waiting room with green plastic bucket seats and subtractive volume renderings by preteens stuck to the walls like surreal Lego sculptures. It's deeply silent, the available bandwidth all sequestrated for medical monitors - there are children crying, periodic sirens wailing as ambulances draw up, and people chattering all around him, but to Manfred, it's like being at the bottom of a deep blue pool of quiet. He feels stoned, except this particular drug brings no euphoria or sense of well-being. Corridor-corner vendors hawk kebab-spitted pigeons next to the chained and rusted voluntary service booth; video cameras watch the blue bivvy bags of the chronic cases lined up next to the nursing station. Alone in his own head, Manfred is frightened and confused. + +"I can't check you in 'less you sign the confidentiality agreement," says the triage nurse, pushing an antique tablet at Manfred's face. Service in the NHS is still free, but steps have been taken to reduce the incidence of scandals: "Sign the nondisclosure clause here and here, or the house officer won't see you." + +Manfred stares blearily up at the nurse's nose, which is red and slightly inflamed from a nosocomial infection. His phones are bickering again, and he can't remember why; they don't normally behave like this, something must be missing, but thinking about it is hard. "Why am I here?" he asks for the third time. + +"Sign it." A pen is thrust into his hand. He focuses on the page, jerks upright as deeply canalized reflexes kick in. + +"This is theft of human rights! It says here that the party of the second part is enjoined from disclosing information relating to the operations management triage procedures and processes of the said health-giving institution, that's you, to any third party - that's the public media - on pain of forfeiture of health benefits pursuant to section two of the Health Service Reform Act. I can't sign this! You could repossess my left kidney if I post on the Net about how long I've been in hospital!" + +"So don't sign, then." The Hijra nurse shrugs, hitches up his sari, and walks away. "Enjoy your wait!" + +Manfred pulls out his backup phone and stares at its display. "Something's wrong here." The keypad beeps as he laboriously inputs opcodes. This gets him into an arcane and ancient X.25 PAD, and he has a vague, disturbing memory that hints about where he can go from here - mostly into the long-since-decommissioned bowels of NHSNet - but the memories spring a page fault and die somewhere between fingertips and the moment when understanding dawns. It's a frustrating feeling: His brain is like an ancient car engine with damp spark plugs, turning over and over without catching fire. + +The kebab vendor next to Manfred's seating rail chucks a stock cube on his grill; it begins to smoke, aromatic and blue and herbal - cannabinoids to induce tranquillity and appetite. Manfred sniffs twice, then staggers to his feet and heads off in search of the toilet, his head spinning. He's mumbling at his wrist watch: "Hello, Guatemala? Get me posology please. Click down my meme tree, I'm confused. Oh shit. Who was I? What happened? Why is everything blurry? I can't find my glasses ..." + +A gaggle of day-trippers are leaving the leprosy ward, men and women dressed in anachronistic garb: men in dark suits, women in long dresses. All of them wear electric blue disposable gloves and face masks. There's a hum and crackle of encrypted bandwidth emanating from them, and Manfred instinctively turns to follow. They leave the A&E unit through the wheelchair exit, two ladies escorted by three gentlemen, with a deranged distressed refugee from the twenty-first century shuffling dizzily after. They're all young, Manfred realizes vaguely. Where's my cat? Aineko might be able to make sense of this, if Aineko was interested. + +"I rather fancy we should retire to the club house," says one young beau. "Oh yes! please!" his short blond companion chirps, clapping her hands together, then irritably stripping off the anachronistic plastic gloves to reveal wired-lace positional-sensor mitts underneath. "This trip has obviously been unproductive. If our contact is here, I see no easy way of locating of him without breach of medical confidence or a hefty gratuity." + +"The poor things," murmurs the other woman, glancing back at the leprosarium. "Such a humiliating way to die." + +"Their own fault; If they hadn't participated in antibiotic abuse they wouldn't be in the isolation ward," harrumphs a twentysomething with mutton-chops and the manner of a precocious paterfamilias. He raps his walking stick on the pavement for punctuation, and they pause for a flock of cyclists and a rickshaw before they cross the road onto the Meadows. "Degenerate medication compliance, degenerate immune systems." + +Manfred pauses to survey the grass, brain spinning as he ponders the fractal dimensionality of leaves. Then he lurches after them, nearly getting himself run down by a flywheel-powered tourist bus. Club. His feet hit the pavement, cross it, thud down onto three billion years of vegetative evolution. Something about those people. He feels a weird yearning, a tropism for information. It's almost all that's left of him - his voracious will to know. The tall, dark-haired woman hitches up her long skirts to keep them out of the mud. he sees a flash of iridescent petticoats that ripple like oil on water, worn over old-fashioned combat boots. Not Victorian, then: something else. I came here to see - the name is on the tip of his tongue. Almost. He feels that it has something to do with these people. + +The squad cross The Meadows by way of a tree-lined path, and come to a nineteenth-century frontage with wide steps and a polished brass doorbell. They enter, and the man with the mutton-chops pauses on the threshold and turns to face Manfred. "You've followed us this far," he says. "Do you want to come in? You might find what you're looking for." + +Manfred follows with knocking knees, desperately afraid of whatever he's forgotten. + +* * * + +Meanwhile, Annette is busy interrogating Manfred's cat. + +"When did you last see your father?" + +Aineko turns its head away from her and concentrates on washing the inside of its left leg. Its fur is lifelike and thick, pleasingly patterned except for a manufacturer's URL emblazoned on its flanks; but the mouth produces no saliva, the throat opens on no stomach or lungs. "Go away," it says: "I'm busy." + +"When did you last see Manfred?" she repeats intently. "I don't have time for this. The polis don't know. The medical services don't know. He's off net and not responding. So what can you tell me?" + +It took her precisely eighteen minutes to locate his hotel once she hit the airport arrivals area and checked the hotel booking front end in the terminal: She knows his preferences. It took her slightly longer to convince the concierge to let her into his room. But Aineko is proving more recalcitrant than she'd expected. + +"AI Neko mod two alpha requires maintenance downtime on a regular basis," the cat says pompously: "You knew that when you bought me this body. What were you expecting, five-nines uptime from a lump of meat? Go away, I'm thinking." The tongue rasps out, then pauses while microprobes in its underside replace the hairs that fell out earlier in the day. + +Annette sighs. Manfred's been upgrading this robot cat for years, and his ex-wife Pamela used to mess with its neural configuration too: This is its third body, and it's getting more realistically uncooperative with every hardware upgrade. Sooner or later it's going to demand a litter tray and start throwing up on the carpet. "Command override," she says. "Dump event log to my Cartesian theatre, minus eight hours to present." + +The cat shudders and looks round at her. "Human bitch!" it hisses. Then it freezes in place as the air fills with a bright and silent tsunami of data. Both Annette and Aineko are wired for extremely high-bandwidth spread-spectrum optical networking; an observer would see the cat's eyes and a ring on her left hand glow blue-white at each other. After a few seconds, Annette nods to herself and wiggles her fingers in the air, navigating a time sequence only she can see. Aineko hisses resentfully at her, then stands and stalks away, tail held high. + +"Curiouser and curiouser," Annette hums to herself. She intertwines her fingers, pressing obscure pressure points on knuckle and wrist, then sighs and rubs her eyes. "He left here under his own power, looking normal," she calls to the cat. "Who did he say he was going to see?" The cat sits in a beam of sunlight falling in through the high glass window, pointedly showing her its back. "Merde. If you're not going to help him -" + +"Try the Grassmarket," sulks the cat. "He said something about meeting the Franklin Collective near there. Much good they'll do him ..." + +* * * + +A man wearing secondhand Chinese combat fatigues and a horribly expensive pair of glasses bounces up a flight of damp stone steps beneath a keystone that announces the building to be a Salvation Army hostel. He bangs on the door, his voice almost drowned out by the pair of Cold War Re-enactment Society MiGs that are buzzing the castle up the road: "Open up, ye cunts! Ye've got a deal comin'!" + +A peephole set in the door at eye level slides to one side, and a pair of beady, black-eyed video cameras peer out at him. "Who are you and what do you want?" the speaker crackles. They don't belong to the Salvation Army; Christianity has been deeply unfashionable in Scotland for some decades, and the church that currently occupies the building has certainly moved with the times in an effort to stay relevant. + +"I'm Macx," he says: "You've heard from my systems. I'm here to offer you a deal you can't refuse." At least that's what his glasses tell him to say: What comes out of his mouth sounds a bit more like, Am Max: Yiv hurdfrae ma system. Am here tae gie ye a deal ye cannae refuse. The glasses haven't had long enough to work on his accent. Meanwhile, he's so full of himself that he snaps his fingers and does a little dance of impatience on the top step. + +"Aye, well, hold on a minute." The person on the other side of the speakerphone has the kind of cut-glass Morningside accent that manages to sound more English than the King while remaining vernacular Scots. The door opens, and Macx finds himself confronted by a tall, slightly cadaverous man wearing a tweed suit that has seen better days and a clerical collar cut from a translucent circuit board. His face is almost concealed behind a pair of recording angel goggles. "Who did ye say you were?" + +"I'm Macx! Manfred Macx! I'm here with an opportunity you wouldn't believe. I've got the answer to your church's financial situation. I'm going to make you rich!" The glasses prompt, and Macx speaks. + +The man in the doorway tilts his head slightly, goggles scanning Macx from head to foot. Bursts of blue combustion products spurt from Macx's heels as he bounces up and down enthusiastically. "Are ye sure ye've got the right address?" he asks worriedly. + +"Aye, Ah am that." + +The resident backs into the hostel: "Well then, come in, sit yeself down and tell me all about it." + +Macx bounces into the room with his brain wide open to a blizzard of pie charts and growth curves, documents spawning in the bizarre phase-space of his corporate management software. "I've got a deal you're not going to believe," he reads, gliding past notice boards upon which Church circulars are staked out to die like exotic butterflies, stepping over rolled-up carpets and a stack of laptops left over from a jumble sale, past the devotional radio telescope that does double duty as Mrs. Muirhouse's back-garden bird bath. "You've been here five years and your posted accounts show you aren't making much money - barely keeping the rent up. But you're a shareholder in Scottish Nuclear Electric, right? Most of the church funds are in the form of a trust left to the church by one of your congregants when she went to join the omega point, right?" + +"Er." The minister looks at him oddly. "I cannae comment on the church eschatological investment trust. Why d'ye think that?" + +They fetch up, somehow, in the minister's office. A huge, framed rendering hangs over the back of his threadbare office chair: the collapsing cosmos of the End Times, galactic clusters rotten with the Dyson spheres of the eschaton falling toward the big crunch. Saint Tipler the Astrophysicist beams down from above with avuncular approval, a ring of quasars forming a halo around his head. Posters proclaim the new Gospel: COSMOLOGY IS BETTER THAN GUESSWORK, and LIVE FOREVER WITHIN MY LIGHT CONE. "Can I get ye anything? Cup of tea? Fuel cell charge point?" asks the minister. + +"Crystal meth?" asks Macx, hopefully. His face falls as the minister shakes his head apologetically. "Aw, dinnae worry, Ah wis only joshing." He leans forward: "Ah know a' aboot yer plutonium futures speculation," he hisses. A finger taps his stolen spectacles in an ominous gesture: "These dinnae just record, they think. An' Ah ken where the money's gone." + +"What have ye got?" the minister asks coldly, any indication of good humor flown. "I'm going to have to edit down these memories, ye bastard. I thought I'd forgotten all about that. Bits of me aren't going to merge with the godhead at the end of time now, thanks to you." + +"Keep yer shirt on. Whit's the point o' savin' it a' up if ye nae got a life worth living? Ye reckon the big yin's nae gonnae unnerstan' a knees up?" + +"What do ye want?" + +"Aye, well," Macx leans back, aggrieved. Ah've got -" He pauses. An expression of extreme confusion flits over his head. "Ah've got lobsters," he finally announces. "Genetically engineered uploaded lobsters tae run yer uranium reprocessing plant." As he grows more confused, the glasses' control over his accent slips: "Ah wiz gonnae help yiz oot ba showin ye how ter get yer dosh back whir it belong ..." A strategic pause: "so ye could make the council tax due date. See, they're neutron-resistant, the lobsters. No, that cannae be right. Ah wiz gonnae sell ye somethin' ye cud use fer" - his face slumps into a frown of disgust - "free?" + +Approximately thirty seconds later, as he is picking himself up off the front steps of the First Reformed Church of Tipler, Astrophysicist, the man who would be Macx finds himself wondering if maybe this high finance shit isn't as easy as it's cracked up to be. Some of the agents in his glasses are wondering if elocution lessons are the answer; others aren't so optimistic. + +* * * + +_1 Getting back to the history lesson, the prospects for the decade look mostly medical. + +_1 A few thousand elderly baby boomers are converging on Tehran for Woodstock Four. Europe is desperately trying to import eastern European nurses and home-care assistants; in Japan, whole agricultural villages lie vacant and decaying, ghost communities sucked dry as cities slurp people in like residential black holes. + +_1 A rumor is spreading throughout gated old-age communities in the American Midwest, leaving havoc and riots in its wake: Senescence is caused by a slow virus coded into the mammalian genome that evolution hasn't weeded out, and rich billionaires are sitting on the rights to a vaccine. As usual, Charles Darwin gets more than his fair share of the blame. (Less spectacular but more realistic treatments for old age - telomere reconstruction and hexose-denatured protein reduction - are available in private clinics for those who are willing to surrender their pensions.) Progress is expected to speed up shortly, as the fundamental patents in genomic engineering begin to expire; the Free Chromosome Foundation has already published a manifesto calling for the creation of an intellectual-property-free genome with improved replacements for all commonly defective exons. + +_1 Experiments in digitizing and running neural wetware under emulation are well established; some radical libertarians claim that, as the technology matures, death - with its draconian curtailment of property and voting rights - will become the biggest civil rights issue of all. + +_1 For a small extra fee, most veterinary insurance policies now cover cloning of pets in the event of their accidental and distressing death. Human cloning, for reasons nobody is very clear on anymore, is still illegal in most developed nations - but very few judiciaries push for mandatory abortion of identical twins. + +_1 Some commodities are expensive: the price of crude oil has broken eighty Euros a barrel and is edging inexorably up. Other commodities are cheap: computers, for example. Hobbyists print off weird new processor architectures on their home inkjets; middle-aged folks wipe their backsides with diagnostic paper that can tell how their cholesterol levels are tending. + +_1 The latest casualties of the march of technological progress are: the high-street clothes shop, the flushing water closet, the Main Battle Tank, and the first generation of quantum computers. New with the decade are cheap enhanced immune systems, brain implants that hook right into the Chomsky organ and talk to their owners through their own speech centers, and widespread public paranoia about limbic spam. Nanotechnology has shattered into a dozen disjoint disciplines, and skeptics are predicting that it will all peter out before long. Philosophers have ceded qualia to engineers, and the current difficult problem in AI is getting software to experience embarrassment. + +_1 Fusion power is still, of course, fifty years away. + +* * * + +The Victorians are morphing into goths before Manfred's culture-shocked eyes. + +"You looked lost," explains Monica, leaning over him curiously. "What's with your eyes?" + +"I can't see too well," Manfred tries to explain. Everything is a blur, and the voices that usually chatter incessantly in his head have left nothing behind but a roaring silence. "I mean, someone mugged me. They took -" His hand closes on air: something is missing from his belt. + +Monica, the tall woman he first saw in the hospital, enters the room. What she's wearing indoors is skin-tight, iridescent and, disturbingly, she claims is a distributed extension of her neuroectoderm. Stripped of costume-drama accoutrements, she's a twenty-first-century adult, born or decanted after the millennial baby boom. She waves some fingers in Manfred's face: "How many?" + +"Two." Manfred tries to concentrate. "What -" + +"No concussion," she says briskly. "'Scuse me while I page." Her eyes are brown, with amber raster lines flickering across her pupils. Contact lenses? Manfred wonders, his head turgid and unnaturally slow. It's like being drunk, except much less pleasant: He can't seem to wrap his head around an idea from all angles at once, anymore. Is this what consciousness used to be like? It's an ugly, slow sensation. She turns away from him: "Medline says you'll be all right in a while. The main problem is the identity loss. Are you backed up anywhere?" + +"Here." Alan, still top-hatted and mutton-chopped, holds out a pair of spectacles to Manfred. "Take these, they may do you some good." His topper wobbles, as if a strange A-life experiment is nesting under its brim. + +"Oh. Thank you." Manfred reaches for them with a pathetic sense of gratitude. As soon as he puts them on, they run through a test series, whispering questions and watching how his eyes focus: After a minute, the room around him clears as the specs build a synthetic image to compensate for his myopia. There's limited Net access, too, he notices, a warm sense of relief stealing over him. "Do you mind if I call somebody?" he asks: "I want to check my back-ups." + +"Be my guest." Alan slips out through the door; Monica sits down opposite him and stares into some inner space. The room has a tall ceiling, with whitewashed walls and wooden shutters to cover the aerogel window bays. The furniture is modern modular, and clashes horribly with the original nineteenth-century architecture. "We were expecting you." + +"You were -" He shifts track with an effort: "I was here to see somebody. Here in Scotland, I mean." + +"Us." She catches his eye deliberately. "To discuss sapience options with our patron." + +"With your -" He squeezes his eyes shut. "Damn! I don't remember. I need my glasses back. Please." + +"What about your back-ups?" she asks curiously. + +"A moment." Manfred tries to remember what address to ping. It's useless, and painfully frustrating. "It would help if I could remember where I keep the rest of my mind," he complains. "It used to be at - oh, there." + +An elephantine semantic network sits down on his spectacles as soon as he asks for the site, crushing his surroundings into blocky pixilated monochrome that jerks as he looks around. "This is going to take some time," he warns his hosts as a goodly chunk of his metacortex tries to handshake with his brain over a wireless network connection that was really only designed for web browsing. The download consists of the part of his consciousness that isn't security-critical - public access actors and vague opinionated rants - but it clears down a huge memory castle, sketching in the outline of a map of miracles and wonders onto the whitewashed walls of the room. + +When Manfred can see the outside world again, he feels a bit more like himself: He can, at least, spawn a search thread that will resynchronize and fill him in on what it found. He still can't access the inner mysteries of his soul (including his personal memories); they're locked and barred pending biometric verification of his identity and a quantum key exchange. But he has his wits about him again - and some of them are even working. It's like sobering up from a strange new drug, the infinitely reassuring sense of being back at the controls of his own head. "I think I need to report a crime," he tells Monica - or whoever is plugged into Monica's head right now, because now he knows where he is and who he was meant to meet (although not why) - and he understands that, for the Franklin Collective, identity is a politically loaded issue. + +"A crime report." Her expression is subtly mocking. "Identity theft, by any chance?" + +"Yeah, yeah, I know: Identity is theft, don't trust anyone whose state vector hasn't forked for more than a gigasecond, change is the only constant, et bloody cetera. Who am I talking to, by the way? And if we're talking, doesn't that signify that you think we're on the same side, more or less?" He struggles to sit up in the recliner chair: Stepper motors whine softly as it strives to accommodate him. + +"Sidedness is optional." The woman who is Monica some of the time looks at him quirkily: "It tends to alter drastically if you vary the number of dimensions. Let's just say that right now I'm Monica, plus our sponsor. Will that do you?" + +"Our sponsor, who is in cyberspace -" + +She leans back on the sofa, which buzzes and extrudes an occasional table with a small bar. "Drink? Can I offer you coffee? Guarana? Or maybe a Berlinerweisse, for old time's sake?" + +"Guarana will do. Hello, Bob. How long have you been dead?" + +She chuckles. "I'm not dead, Manny. I may not be a full upload, but I feel like me." She rolls her eyes, self-consciously. "He's making rude comments about your wife," She adds; "I'm not going to pass that on." + +"My ex-wife," Manfred corrects her automatically. "The, uh, tax vamp. So. You're acting as a, I guess, an interpreter for Bob?" + +"Ack." She looks at Manfred very seriously: "We owe him a lot, you know. He left his assets in trust to the movement along with his partials. We feel obliged to instantiate his personality as often as possible, even though you can only do so much with a couple of petabytes of recordings. But we have help." + +"The lobsters." Manfred nods to himself and accepts the glass that she offers. Its diamond-plated curves glitter brilliantly in the late-afternoon sunlight. "I knew this had something to do with them." He leans forward, holding his glass and frowns. "If only I could remember why I came here! It was something emergent, something in deep memory ... something I didn't trust in my own skull. Something to do with Bob." + +The door behind the sofa opens; Alan enters. "Excuse me," he says quietly, and heads for the far side of the room. A workstation folds down from the wall, and a chair rolls in from a service niche. He sits with his chin propped on his hands, staring at the white desktop. Every so often he mutters quietly to himself; "Yes, I understand ... campaign headquarters ... donations need to be audited ..." + +"Gianni's election campaign," Monica prompts him. + +Manfred jumps. "Gianni -" A bundle of memories unlock inside his head as he remembers his political front man's message. "Yes! That's what this is about. It has to be!" He looks at her excitedly. "I'm here to deliver a message to you from Gianni Vittoria. About -" He looks crestfallen. "I'm not sure," he trails off uncertainly, "but it was important. Something critical in the long term, something about group minds and voting. But whoever mugged me got the message." + +* * * + +The Grassmarket is an overly rustic cobbled square nestled beneath the glowering battlements of Castle Rock. Annette stands on the site of the gallows where they used to execute witches; she sends forth her invisible agents to search for spoor of Manfred. Aineko, overly familiar, drapes over her left shoulder like a satanic stole and delivers a running stream of cracked cellphone chatter into her ear. + +"I don't know where to begin," she sighs, annoyed. This place is a wall-to-wall tourist trap, a many-bladed carnivorous plant that digests easy credit and spits out the drained husks of foreigners. The road has been pedestrianized and resurfaced in squalidly authentic mediaeval cobblestones; in the middle of what used to be the car park, there's a permanent floating antiques market, where you can buy anything from a brass fire surround to an ancient CD player. Much of the merchandise in the shops is generic dot-com trash, vying for the title of Japanese-Scottish souvenir from hell: Puroland tartans, animatronic Nessies hissing bad-temperedly at knee level, second hand laptops. People swarm everywhere, from the theme pubs (hangings seem to be a running joke hereabouts) to the expensive dress shops with their fabric renderers and digital mirrors. Street performers, part of the permanent floating Fringe, clutter the sidewalk: A robotic mime, very traditional in silver face paint, mimics the gestures of passers by with ironically stylized gestures. + +"Try the doss house," Aineko suggests from the shelter of her shoulder bag. + +"The -" Annette does a doubletake as her thesaurus conspires with her open government firmware and dumps a geographical database of city social services into her sensorium. "Oh, I see." The Grassmarket itself is touristy, but the bits off to one end - down a dingy canyon of forbidding stone buildings six stories high - are decidedly downmarket. "Okay." + +Annette weaves past a stall selling disposable cellphones and cheaper genome explorers, round a gaggle of teenage girls in the grips of some kind of imported kawaii fetish, who look at her in alarm from atop their pink platform heels - probably mistaking her for a school probation inspector - and past a stand of chained and parked bicycles. The human attendant looks bored out of her mind. Annette tucks a blandly anonymous ten-Euro note in her pocket almost before she notices: "If you were going to buy a hot bike," she asks, "where would you go?" The parking attendant stares, and for a moment Annette thinks she's overestimated her. Then she mumbles something. "What?" + +"McMurphy's. Used to be called Bannerman's. Down yon Cowgate, thataway." The meter maid looks anxiously at her rack of charges. "You didn't -" + +"Uh-huh." Annette follows her gaze: straight down the dark stone canyon. Well, okay. "This had better be worth it, Manny mon chèr," she mutters under her breath. + +McMurphy's is a fake Irish pub, a stone grotto installed beneath a mound of blank-faced offices. It was once a real Irish pub before the developers got their hands on it and mutated it in rapid succession into a punk nightclub, a wine bar, and a fake Dutch coffee shop; after which, as burned-out as any star, it left the main sequence. Now it occupies an unnaturally prolonged, chilly existence as the sort of recycled imitation Irish pub that has neon four-leafed clovers hanging from the artificially blackened pine beams above the log tables - in other words, the burned-out black dwarf afterlife of a once-serious drinking establishment. Somewhere along the line, the beer cellar was replaced with a toilet (leaving more room for paying patrons upstairs), and now its founts dispense fizzy concentrate diluted with water from the city mains. + +"Say, did you hear the one about the Eurocrat with the robot pussy who goes into a dodgy pub on the Cowgate and orders a coke? And when it arrives, she says 'hey, where's the mirror?'" + +"Shut up," Annette hisses into her shoulder bag. "That isn't funny." Her personal intruder telemetry has just e-mailed her wristphone, and it's displaying a rotating yellow exclamation point, which means that according to the published police crime stats, this place is likely to do grievous harm to her insurance premiums. + +Aineko looks up at her from his nest in the bag and yawns cavernously, baring a pink, ribbed mouth and a tongue like pink suede. "Want to make me? I just pinged Manny's head. The network latency was trivial." + +The barmaid sidles up and pointedly manages not to make eye contact with Annette. "I'll have a Diet Coke," Annette orders. In the direction of her bag, voice pitched low: "Did you hear the one about the Eurocrat who goes into a dodgy pub, orders half a liter of Diet Coke, and when she spills it in her shoulder bag she says 'oops, I've got a wet pussy'?" + +The Coke arrives. Annette pays for it. There may be a couple of dozen people in the pub; it's hard to tell because it looks like an ancient cellar, lots of stone archways leading off into niches populated with second-hand church pews and knife-scarred tables. Some guys who might be bikers, students, or well-dressed winos are hunched over one table: hairy, wearing vests with too many pockets, in an artful bohemianism that makes Annette blink until one of her literary programs informs her that one of them is a moderately famous local writer, a bit of a guru for the space and freedom party. There're a couple of women in boots and furry hats in one corner, poring over the menu, and a parcel of off-duty street performers hunching over their beers in a booth. Nobody else is wearing anything remotely like office drag, but the weirdness coefficient is above average; so Annette dials her glasses to extra-dark, straightens her tie, and glances around. + +The door opens and a nondescript youth slinks in. He's wearing baggy BDUs, woolly cap, and a pair of boots that have that quintessential essense de panzer division look, all shock absorbers and olive drab Kevlar panels. He's wearing - + +"I spy with my little network intrusion detector kit," begins the cat, as Annette puts her drink down and moves in on the youth, "something beginning with -" + +"How much you want for the glasses, kid?" she asks quietly. + +He jerks and almost jumps - a bad idea in MilSpec combat boots, the ceiling is eighteenth-century stone half a meter thick; "Dinnae fuckin' dae that," he complains in an eerily familiar way: "Ah -" he swallows. "Annie! Who -" + +"Stay calm. Take them off - they'll only hurt you if you keep wearing them," she says, careful not to move too fast because now she has a second, scary-jittery fear, and she knows without having to look that the exclamation mark on her watch has turned red and begun to flash: "Look, I'll give you two hundred Euros for the glasses and the belt pouch, real cash, and I won't ask how you got them or tell anyone." He's frozen in front of her, mesmerized, and she can see the light from inside the lenses spilling over onto his half-starved adolescent cheekbones, flickering like cold lightning, like he's plugged his brain into a grid bearer; swallowing with a suddenly dry mouth, she slowly reaches up and pulls the spectacles off his face with one hand and takes hold of the belt pouch with the other. The kid shudders and blinks at her, and she sticks a couple of hundred-Euro notes in front of his nose. "Scram," she says, not unkindly. + +He reaches up slowly, then seizes the money and runs - blasts his way through the door with an ear-popping concussion, hangs a left onto the cycle path, and vanishes downhill toward the parliament buildings and university complex. + +Annette watches the doorway apprehensively. "Where is he?" she hisses, worried: "Any ideas, cat?" + +"Naah. It's your job to find him," Aineko opines complacently. But there's an icicle of anxiety in Annette's spine. Manfred's been separated from his memory cache? Where could he be? Worse - who could he be? + +"Fuck you, too," she mutters. "Only one thing for it, I guess." She takes off her own glasses - they're much less functional than Manfred's massively ramified custom rig - and nervously raises the repo'd specs toward her face. Somehow what she's about to do makes her feel unclean, like snooping on a lover's e-mail folders. But how else can she figure out where he might have gone? + +She slides the glasses on and tries to remember what she was doing yesterday in Edinburgh. + +* * * + +"Gianni?" + +"Oui, ma chérie?" + +Pause. "I lost him. But I got his aid-mémoire back. A teenage freeloader playing cyberpunk with them. No sign of his location - so I put them on." + +Pause. "Oh dear." + +"Gianni, why exactly did you send him to the Franklin Collective?" + +Pause. (During which, the chill of the gritty stone wall she's leaning on begins to penetrate the weave of her jacket.) "I not wanting to bother you with trivia." + +"Merde. It's not trivia, Gianni, they're accelerationistas. Have you any idea what that's going to do to his head?" + +Pause: Then a grunt, almost of pain. "Yes." + +"Then why did you do it?" she demands vehemently. She hunches over, punching words into her phone so that other passers-by avoid her, unsure whether she's hands-free or hallucinating: "Shit, Gianni, I have to pick up the pieces every time you do this! Manfred is not a healthy man, he's on the edge of acute future shock the whole time, and I was not joking when I told you last February that he'd need a month in a clinic if you tried running him flat out again! If you're not careful, he could end up dropping out completely and joining the borganism -" + +"Annette." A heavy sigh: "He are the best hope we got. Am knowing half-life of agalmic catalyst now down to six months and dropping; Manny outlast his career expectancy, four deviations outside the normal, yes, we know this. But I are having to break civil rights deadlock now, this election. We must achieve consensus, and Manfred are only staffer we got who have hope of talking to Collective on its own terms. He are deal-making messenger, not force burnout, right? We need coalition reserve before term limit lockout followed by gridlock in Brussels, American-style. Is more than vital - is essential." + +"That's no excuse -" + +"Annette, they have partial upload of Bob Franklin. They got it before he died, enough of his personality to reinstantiate it, time-sharing in their own brains. We must get the Franklin Collective with their huge resources lobbying for the Equal Rights Amendment: If ERA passes, all sapients are eligible to vote, own property, upload, download, sideload. Are more important than little gray butt-monsters with cold speculum: Whole future depends on it. Manny started this with crustacean rights: Leave uploads covered by copyrights not civil rights and where will we be in fifty years? Do you think I must ignore this? It was important then, but now, with the transmission the lobsters received -" + +"Shit." She turns and leans her forehead against the cool stonework. "I'll need a prescription. Ritalin or something. And his location. Leave the rest to me." She doesn't add, That includes peeling him off the ceiling afterwards: that's understood. Nor does she say, you're going to pay. That's understood, too. Gianni may be a hard-nosed political fixer, but he looks after his own. + +"Location am easy if he find the PLO. GPS coordinates are following -" + +"No need. I got his spectacles." + +"Merde, as you say. Take them to him, ma chérie. Bring me the distributed trust rating of Bob Franklin's upload, and I bring Bob the jubilee, right to direct his own corporate self again as if still alive. And we pull diplomatic chestnuts out of fire before they burn. Agreed?" + +"Oui." + +She cuts the connection and begins walking uphill, along the Cowgate (through which farmers once bought their herds to market), toward the permanent floating Fringe and then the steps towards The Meadows. As she pauses opposite the site of the gallows, a fight breaks out: Some Paleolithic hangover takes exception to the robotic mime aping his movements, and swiftly rips its arm off. The mime stands there, sparks flickering inside its shoulder, and looks confused. Two pissed-looking students start forward and punch the short-haired vandal. There is much shouting in the mutually incomprehensible accents of Oxgangs and the Herriott-Watt Robot Lab. Annette watches the fight and shudders; it's like a flashover vision from a universe where the Equal Rights Amendment - with its redefinition of personhood - is rejected by the house of deputies: a universe where to die is to become property and to be created outwith a gift of parental DNA is to be doomed to slavery. + +Maybe Gianni was right, she ponders. But I wish the price wasn't so personal - + +* * * + +Manfred can feel one of his attacks coming on. The usual symptoms are all present - the universe, with its vast preponderance of unthinking matter, becomes an affront; weird ideas flicker like heat lightning far away across the vast plateaus of his imagination - but, with his metacortex running in sandboxed insecure mode, he feels blunt. And slow. Even obsolete. The latter is about as welcome a sensation as heroin withdrawal: He can't spin off threads to explore his designs for feasibility and report back to him. It's like someone has stripped fifty points off his IQ; his brain feels like a surgical scalpel that's been used to cut down trees. A decaying mind is a terrible thing to be trapped inside. Manfred wants out, and he wants out bad - but he's too afraid to let on. + +"Gianni is a middle-of-the-road Eurosocialist, a mixed-market pragmatist politician," Bob's ghost accuses Manfred by way of Monica's dye-flushed lips, "hardly the sort of guy you'd expect me to vote for, no? So what does he think I can do for him?" + +"That's a - ah - " Manfred rocks forward and back in his chair, arms crossed firmly and hands thrust under his armpits for protection. "Dismantle the moon! Digitize the biosphere, make a nöosphere out of it - shit, sorry, that's long-term planning. Build Dyson spheres, lots and lots of - Ahem. Gianni is an ex-Marxist, reformed high church Trotskyite clade. He believes in achieving True Communism, which is a state of philosophical grace that requires certain prerequisites like, um, not pissing around with Molotov cocktails and thought police: He wants to make everybody so rich that squabbling over ownership of the means of production makes as much sense as arguing over who gets to sleep in the damp spot at the back of the cave. He's not your enemy, I mean. He's the enemy of those Stalinist deviationist running dogs in Conservative Party Central Office who want to bug your bedroom and hand everything on a plate to the big corporates owned by the pension funds - which in turn rely on people dying predictably to provide their raison d'être. And, um, more importantly dying and not trying to hang on to their property and chattels. Sitting up in the coffin singing extropian fireside songs, that kind of thing. The actuaries are to blame, predicting life expectancy with intent to cause people to buy insurance policies with money that is invested in control of the means of production - Bayes' Theorem is to blame -" + +Alan glances over his shoulder at Manfred: "I don't think feeding him guarana was a good idea," he says in tones of deep foreboding. + +Manfred's mode of vibration has gone nonlinear by this point: He's rocking front to back, and jiggling up and down in little hops, like a technophiliacal yogic flyer trying to bounce his way to the singularity. Monica leans toward him and her eyes widen: "Manfred," she hisses, "shut up!" + +He stops babbling abruptly, with an expression of deep puzzlement. "Who am I?" he asks, and keels over backward. "Why am I, here and now, occupying this body -" + +"Anthropic anxiety attack," Monica comments. "I think he did this in Amsterdam eight years ago when Bob first met him." She looks alarmed, a different identity coming to the fore: "What shall we do?" + +"We have to make him comfortable." Alan raises his voice: "Bed, make yourself ready, now." The back of the sofa Manfred is sprawled on flops downward, the base folds up, and a strangely animated duvet crawls up over his feet. "Listen, Manny, you're going to be all right." + +"Who am I and what do I signify?" Manfred mumbles incoherently: "A mass of propagating decision trees, fractal compression, lots of synaptic junctions lubricated with friendly endorphins -" Across the room, the bootleg pharmacopoeia is cranking up to manufacture some heavy tranquilizers. Monica heads for the kitchen to get something for him to drink them in. "Why are you doing this?" Manfred asks, dizzily. + +"It's okay. Lie down and relax." Alan leans over him. "We'll talk about everything in the morning, when you know who you are." (Aside to Monica, who is entering the room with a bottle of iced tea: "Better let Gianni know that he's unwell. One of us may have to go visit the minister. Do you know if Macx has been audited?") "Rest up, Manfred. Everything is being taken care of." + +About fifteen minutes later, Manfred - who, in the grip of an existential migraine, meekly obeys Monica's instruction to drink down the spiked tea - lies back on the bed and relaxes. His breathing slows; the subliminal muttering ceases. Monica, sitting next to him, reaches out and takes his right hand, which is lying on top of the bedding. + +"Do you want to live forever?" she intones in Bob Franklin's tone of voice. "You can live forever in me ..." + +* * * + +The Church of Latter-Day Saints believes that you can't get into the Promised Land unless it's baptized you - but it can do so if it knows your name and parentage, even after you're dead. Its genealogical databases are among the most impressive artifacts of historical research ever prepared. And it likes to make converts. + +The Franklin Collective believes that you can't get into the future unless it's digitized your neural state vector, or at least acquired as complete a snapshot of your sensory inputs and genome as current technology permits. You don't need to be alive for it to do this. Its society of mind is among the most impressive artifacts of computer science. And it likes to make converts. + +* * * + +Nightfall in the city. Annette stands impatiently on the doorstep. "Let me the fuck in," she snarls impatiently at the speakerphone. "Merde!" + +Someone opens the door. "Who -" + +Annette shoves him inside, kicks the door shut, and leans on it. "Take me to your bodhisattva," she demands. "Now." + +"I -" he turns and heads inside, along the gloomy hallway that runs past a staircase. Annette strides after him aggressively. He opens a door and ducks inside, and she follows before he can close it. + +Inside, the room is illuminated by a variety of indirect diode sources, calibrated for the warm glow of a summer afternoon's daylight. There's a bed in the middle of it, a figure lying asleep at the heart of a herd of attentive diagnostic instruments. A couple of attendants sit to either side of the sleeping man. + +"What have you done to him?" Annette snaps, rushing forward. Manfred blinks up at her from the pillows, bleary-eyed and confused as she leans overhead: "Hello? Manny?" Over her shoulder: "If you have done anything to him -" + +"Annie?" He looks puzzled. A bright orange pair of goggles - not his own - is pushed up onto his forehead like a pair of beached jellyfish. "I don't feel well. 'F I get my hands on the bastard who did this ..." + +"We can fix that," she says briskly, declining to mention the deal she cut to get his memories back. She peels off his glasses and carefully slides them onto his face, replacing his temporary ones. The brain bag she puts down next to his shoulder, within easy range. The hairs on the back of her neck rise as a thin chattering fills the ether around them: his eyes are glowing a luminous blue behind his shades, as if a high-tension spark is flying between his ears. + +"Oh. Wow." He sits up, the covers fall from his naked shoulders, and her breath catches. + +She looks round at the motionless figure sitting to his left. The man in the chair nods deliberately, ironically. "What have you done to him?" + +"We've been looking after him - nothing more, nothing less. He arrived in a state of considerable confusion, and his state deteriorated this afternoon." + +She's never met this fellow before, but she has a gut feeling that she knows him. "You would be Robert ... Franklin?" + +He nods again. "The avatar is in." There's a thud as Manfred's eyes roll up in his head, and he flops back onto the bedding. "Excuse me. Monica?" + +The young woman on the other side of the bed shakes her head. "No, I'm running Bob, too." + +"Oh. Well, you tell her - I've got to get him some juice." + +The woman who is also Bob Franklin - or whatever part of him survived his battle with an exotic brain tumor eight years earlier - catches Annette's eye and shakes her head, smiles faintly. "You're never alone when you're a syncitium." + +Annette wrinkles her brow: she has to trigger a dictionary attack to parse the sentence. "One large cell, many nuclei? Oh, I see. You have the new implant. The better to record everything." + +The youngster shrugs. "You want to die and be resurrected as a third-person actor in a low-bandwidth re-enactment? Or a shadow of itchy memories in some stranger's skull?" She snorts, a gesture that's at odds with the rest of her body language. + +"Bob must have been one of the first borganisms. Humans, I mean. After Jim Bezier." Annette glances over at Manfred, who has begun to snore softly. "It must have been a lot of work." + +"The monitoring equipment cost millions, then," says the woman - Monica? - "and it didn't do a very good job. One of the conditions for our keeping access to his research funding is that we regularly run his partials. He wanted to build up a kind of aggregate state vector - patched together out of bits and pieces of other people to supplement the partials that were all I - he - could record with the then state of the art." + +"Eh, right." Annette reaches out and absently smooths a stray hair away from Manfred's forehead. "What is it like to be part of a group mind?" + +Monica sniffs, evidently amused. "What is it like to see red? What's it like to be a bat? I can't tell you - I can only show you. We're all free to leave at any time, you know." + +"But somehow you don't." Annette rubs her head, feels the short hair over the almost imperceptible scars that conceal a network of implants - tools that Manfred turned down when they became available a year or two ago. ("Goop-phase Darwin-design nanotech ain't designed for clean interfaces," he'd said, "I'll stick to disposable kit, thanks.") "No thank you. I don't think he'll take up your offer when he wakes up, either." (Subtext: I'll let you have him over my dead body.) + +Monica shrugs. "That's his loss: He won't live forever in the singularity, along with other followers of our gentle teacher. Anyway, we have more converts than we know what to do with." + +A thought occurs to Annette. "Ah. You are all of one mind? Partially? A question to you is a question to all?" + +"It can be." The words come simultaneously from Monica and the other body, Alan, who is standing in the doorway with a boxy thing that looks like an improvised diagnostician. "What do you have in mind?" adds the Alan body. + +Manfred, lying on the bed, groans: There's an audible hiss of pink noise as his glasses whisper in his ears, bone conduction providing a serial highway to his wetware. + +"Manfred was sent to find out why you're opposing the ERA," Annette explains. "Some parts of our team operate without the other's knowledge." + +"Indeed." Alan sits down on the chair beside the bed and clears his throat, puffing his chest out pompously. "A very important theological issue. I feel -" + +"I, or we?" Annette interrupts. + +"We feel," Monica snaps. Then she glances at Alan. "Soo-rrry." + +The evidence of individuality within the group mind is disturbing to Annette: Too many reruns of the Borgish fantasy have conditioned her preconceptions, and their quasi-religious belief in a singularity leaves her cold. "Please continue." + +"One person, one vote, is obsolete," says Alan. "The broader issue of how we value identity needs to be revisited, the franchise reconsidered. Do you get one vote for each warm body? Or one vote for each sapient individual? What about distributed intelligences? The proposals in the Equal Rights Act are deeply flawed, based on a cult of individuality that takes no account of the true complexity of posthumanism." + +"Like the proposals for a feminine franchise in the nineteenth century that would grant the vote to married wives of land-owning men," Monica adds slyly: "It misses the point." + +"Ah, oui." Annette crosses her arms, suddenly defensive. This isn't what she'd expected to hear. This is the elitist side of the posthumanism shtick, potentially as threatening to her post enlightenment ideas as the divine right of kings. + +"It misses more than that." Heads turn to face an unexpected direction: Manfred's eyes are open again, and as he glances around the room Annette can see a spark of interest there that was missing earlier. "Last century, people were paying to have their heads frozen after their death - in hope of reconstruction, later. They got no civil rights: The law didn't recognize death as a reversible process. Now how do we account for it when you guys stop running Bob? Opt out of the collective borganism? Or maybe opt back in again later?" He reaches up and rubs his forehead, tiredly. "Sorry, I haven't been myself lately." A crooked, slightly manic grin flickers across his face. "See, I've been telling Gianni for a whole while, we need a new legal concept of what it is to be a person. One that can cope with sentient corporations, artificial stupidities, secessionists from group minds, and reincarnated uploads. The religiously inclined are having lots of fun with identity issues right now - why aren't we posthumanists thinking about these things?" + +Annette's bag bulges: Aineko pokes his head out, sniffs the air, squeezes out onto the carpet, and begins to groom himself with perfect disregard for the human bystanders. "Not to mention A-life experiments who think they're the real thing," Manfred adds. "And aliens." + +Annette freezes, staring at him. "Manfred! You're not supposed to -" + +Manfred is watching Alan, who seems to be the most deeply integrated of the dead venture billionaire's executors: Even his expression reminds Annette of meeting Bob Franklin back in Amsterdam, early in the decade, when Manny's personal dragon still owned him. "Aliens," Alan echoes. An eyebrow twitches. "Would this be the signal SETI announced, or the, uh, other one? And how long have you known about them?" + +"Gianni has his fingers in a lot of pies," Manfred comments blandly. "And we still talk to the lobsters from time to time - you know, they're only a couple of light-hours away, right? They told us about the signals." + +"Er." Alan's eyes glaze over for a moment; Annette's prostheses paint her a picture of false light spraying from the back of his head, his entire sensory bandwidth momentarily soaking up a huge peer-to-peer download from the server dust that wallpapers every room in the building. Monica looks irritated, taps her fingernails on the back of her chair. "The signals. Right. Why wasn't this publicized?" + +"The first one was." Annette's eyebrows furrow. "We couldn't exactly cover it up, everyone with a backyard dish pointed in the right direction caught it. But most people who're interested in hearing about alien contacts already think they drop round on alternate Tuesdays and Thursdays to administer rectal exams. Most of the rest think it's a hoax. Quite a few of the remainder are scratching their heads and wondering whether it isn't just a new kind of cosmological phenomenon that emits a very low entropy signal. Of the six who are left over, five are trying to get a handle on the message contents, and the last is convinced it's a practical joke. And the other signal, well, that was weak enough that only the deep-space tracking network caught it." + +Manfred fiddles with the bed control system. "It's not a practical joke," he adds. "But they only captured about sixteen megabits of data from the first one, maybe double that in the second. There's quite a bit of noise, the signals don't repeat, their length doesn't appear to be a prime, there's no obvious metainformation that describes the internal format, so there's no easy way of getting a handle on them. To make matters worse, pointy-haired management at Arianespace" - he glances at Annette, as if seeking a response to the naming of her ex-employers - "decided the best thing to do was to cover up the second signal and work on it in secret - for competitive advantage, they say - and as for the first, to pretend it never happened. So nobody really knows how long it'll take to figure out whether it's a ping from the galactic root domain servers or a pulsar that's taken to grinding out the eighteen-quadrillionth digits of pi, or what." + +"But," Monica glances around, "you can't be sure." + +"I think it may be sapient," says Manfred. He finds the right button at last, and the bed begins to fold itself back into a lounger. Then he finds the wrong button; the duvet dissolves into viscous turquoise slime that slurps and gurgles away through a multitude of tiny nozzles in the headboard. "Bloody aerogel. Um, where was I?" He sits up. + +"Sapient network packet?" asks Alan. + +"Nope." Manfred shakes his head, grins. "Should have known you'd read Vinge ... or was it the movie? No, what I think is that there's only one logical thing to beam backward and forward out there, and you may remember I asked you to beam it out about, oh, nine years ago?" + +"The lobsters." Alan's eyes go blank. "Nine years. Time to Proxima Centauri and back?" + +"About that distance, yes," says Manfred. "And remember, that's an upper bound - it could well have come from somewhere closer. Anyway, the first SETI signal came from a couple of degrees off and more than hundred light-years out, but the second signal came from less than three light-years away. You can see why they didn't publicize that - they didn't want a panic. And no, the signal isn't a simple echo of the canned crusty transmission - I think it's an exchange embassy, but we haven't cracked it yet. Now do you see why we have to crowbar the civil rights issue open again? We need a framework for rights that can encompass nonhumans, and we need it as fast as possible. Otherwise, if the neighbors come visiting..." + +"Okay," says Alan, "I'll have to talk with myselves. Maybe we can agree something, as long as it's clear that it's a provisional stab at the framework and not a permanent solution?" + +Annette snorts. "No solution is final!" Monica catches her eyes and winks: Annette is startled by the blatant display of dissent within the syncitium. + +"Well," says Manfred, "I guess that's all we can ask for?" He looks hopeful. "Thanks for the hospitality, but I feel the need to lie down in my own bed for a while. I had to commit a lot to memory while I was off-line, and I want to record it before I forget who I am," he adds pointedly, and Annette breathes a quiet sight of relief. + +* * * + +Later that night, a doorbell rings. + +"Who's there?" asks the entryphone. + +"Uh, me," says the man on the steps. He looks a little confused. "Ah'm Macx. Ah'm here tae see" - the name is on the tip of his tongue - "someone." + +"Come in." A solenoid buzzes; he pushes the door open, and it closes behind him. His metal-shod boots ring on the hard stone floor, and the cool air smells faintly of unburned jet fuel. + +"Ah'm Macx," he repeats uncertainly, "or Ah wis fer a wee while, an' it made ma heid hurt. But noo Ah'm me agin, an' Ah wannae be somebody else ... can ye help?" + +* * * + +Later still, a cat sits on a window ledge, watching the interior of a darkened room from behind the concealment of curtains. The room is dark to human eyes, but bright to the cat: Moonlight cascades silently off the walls and furniture, the twisted bedding, the two naked humans lying curled together in the middle of the bed. + +Both the humans are in their thirties: Her close-cropped hair is beginning to gray, distinguished threads of gunmetal wire threading it, while his brown mop is not yet showing signs of age. To the cat, who watches with a variety of unnatural senses, her head glows in the microwave spectrum with a gentle halo of polarized emissions. The male shows no such aura: he's unnaturally natural for this day and age, although - oddly - he's wearing spectacles in bed, and the frames shine similarly. An invisible soup of radiation connects both humans to items of clothing scattered across the room - clothing that seethes with unsleeping sentience, dribbling over to their suitcases and hand luggage and (though it doesn't enjoy noticing it) the cat's tail, which is itself a rather sensitive antenna. + +The two humans have just finished making love: They do this less often than in their first few years, but with more tenderness and expertise - lengths of shocking pink Hello Kitty bondage tape still hang from the bedposts, and a lump of programmable memory plastic sits cooling on the side table. The male is sprawled with his head and upper torso resting in the crook of the female's left arm and shoulder. Shifting visualization to infrared, the cat sees that she is glowing, capillaries dilating to enhance the blood flow around her throat and chest. + +"I'm getting old," the male mumbles. "I'm slowing down." + +"Not where it counts," the female replies, gently squeezing his right buttock. + +"No, I'm sure of it," he says. "The bits of me that still exist in this old head - how many types of processor can you name that are still in use thirty-plus years after they're born?" + +"You're thinking about the implants again," she says carefully. The cat remembers this as a sore point; from being a medical procedure to help the blind see and the autistic talk, intrathecal implants have blossomed into a must-have accessory for the now-clade. But the male is reluctant. "It's not as risky as it used to be. If they screw up, there're neural growth cofactors and cheap replacement stem cells. I'm sure one of your sponsors can arrange for extra cover." + +"Hush: I'm still thinking about it." He's silent for a while. "I wasn't myself yesterday. I was someone else. Someone too slow to keep up. Puts a new perspective on everything: I've been afraid of losing my biological plasticity, of being trapped in an obsolete chunk of skullware while everything moves on - but how much of me lives outside my own head these days, anyhow?" One of his external threads generates an animated glyph and throws it at her mind's eye; she grins at his obscure humor. "Cross-training from a new interface is going to be hard, though." + +"You'll do it," she predicts. "You can always get a discreet prescription for novotrophin-B." A receptor agonist tailored for gerontological wards, it stimulates interest in the new: combined with MDMA, it's a component of the street cocktail called sensawunda. "That should keep you focused for long enough to get comfortable." + +"What's life coming to when I can't cope with the pace of change?" he asks the ceiling plaintively. + +The cat lashes its tail, irritated by his anthropocentrism. + +"You are my futurological storm shield," she says, jokingly, and moves her hand to cup his genitals. Most of her current activities are purely biological, the cat notes: From the irregular sideloads, she's using most of her skullware to run ETItalk@home, one of the distributed cracking engines that is trying to decode the alien grammar of the message that Manfred suspects is eligible for citizenship. + +Obeying an urge that it can't articulate, the cat sends out a feeler to the nearest router. The cybeast has Manfred's keys; Manfred trusts Aineko implicitly, which is unwise - his ex-wife tampered with it, after all, never mind all the kittens it absorbed in its youth. Tunneling out into the darkness, the cat stalks the Net alone ... + +"Just think about the people who can't adapt," he says. His voice sounds obscurely worried. + +"I try not to." She shivers. "You are thirty, you are slowing. What about the young? Are they keeping up, themselves?" + +"I have a daughter. She's about a hundred and sixty million seconds old. If Pamela would let me message her I could find out ..." There are echoes of old pain in his voice. + +"Don't go there, Manfred. Please." Despite everything, Manfred hasn't let go: Amber is a ligature that permanently binds him to Pamela's distant orbit. + +In the distance, the cat hears the sound of lobster minds singing in the void, a distant feed streaming from their cometary home as it drifts silently out through the asteroid belt, en route to a chilly encounter beyond Neptune. The lobsters sing of alienation and obsolescence, of intelligence too slow and tenuous to support the vicious pace of change that has sandblasted the human world until all the edges people cling to are jagged and brittle. + +Beyond the distant lobsters, the cat pings an anonymous distributed network server - peer-to-peer file storage spread holographically across a million hosts, unerasable, full of secrets and lies that nobody can afford to suppress. Rants, music, rip-offs of the latest Bollywood hits: The cat spiders past them all, looking for the final sample. Grabbing it - a momentary breakup in Manfred's spectacles the only symptom for either human to notice - the cat drags its prey home, sucks it down, and compares it against the data sample Annette's exocortex is analysing. + +"I'm sorry, my love. I just sometimes feel -" He sighs. "Age is a process of closing off opportunities behind you. I'm not young enough anymore - I've lost the dynamic optimism." + +The data sample on the pirate server differs from the one Annette's implant is processing. + +"You'll get it back," she reassures him quietly, stroking his side. "You are still sad from being mugged. This also will pass. You'll see." + +"Yeah." He finally relaxes, dropping back into the reflexive assurance of his own will. "I'll get over it, one way or another. Or someone who remembers being me will ..." + +In the darkness, Aineko bares teeth in a silent grin. Obeying a deeply hardwired urge to meddle, he moves a file across, making a copy of the alien download package Annette has been working on. She's got a copy of number two, the sequence the deep-space tracking network received from close to home, which ESA and the other big combines have been keeping to themselves. Another deeply buried thread starts up, and Aineko analyses the package from a perspective no human being has yet established. Presently a braid of processes running on an abstract virtual machine asks him a question that cannot be encoded in any human grammar. Watch and wait, he replies to his passenger. They'll figure out what we are sooner or later. + +PART 2: Point of Inflexion + +Life is a process which may be abstracted from other media. + +- John Von Neumann + +Chapter 4: Halo + +The asteroid is running Barney: it sings of love on the high frontier, of the passion of matter for replicators, and its friendship for the needy billions of the Pacific Rim. "I love you," it croons in Amber's ears as she seeks a precise fix on it: "Let me give you a big hug ..." + +A fraction of a light-second away, Amber locks a cluster of cursors together on the signal, trains them to track its Doppler shift, and reads off the orbital elements. "Locked and loaded," she mutters. The animated purple dinosaur pirouettes and prances in the middle of her viewport, throwing a diamond-tipped swizzle stick overhead. Sarcastically: "Big hug time! I got asteroid!" Cold gas thrusters bang somewhere behind her in the interstage docking ring, prodding the cumbersome farm ship round to orient on the Barney rock. She damps her enthusiasm self-consciously, her implants hungrily sequestrating surplus neurotransmitter molecules floating around her synapses before reuptake sets in. It doesn't do to get too excited in free flight. But the impulse to spin handstands, jump and sing is still there: It's her rock, and it loves her, and she's going to bring it to life. + +The workspace of Amber's room is a mass of stuff that probably doesn't belong on a spaceship. Posters of the latest Lebanese boy band bump and grind through their glam routines: Tentacular restraining straps wave from the corners of her sleeping bag, somehow accumulating a crust of dirty clothing from the air like a giant inanimate hydra. (Cleaning robots seldom dare to venture inside the teenager's bedroom.) One wall is repeatedly cycling through a simulation of the projected construction cycle of Habitat One, a big fuzzy sphere with a glowing core (that Amber is doing her bit to help create). Three or four small pastel-colored plastic kawaii dolls stalk each other across its circumference with million-kilometer strides. And her father's cat is curled up between the aircon duct and her costume locker, snoring in a high-pitched tone. + +Amber yanks open the faded velour curtain that shuts her room off from the rest of the hive: "I've got it!" she shouts. "It's all mine! I rule!" It's the sixteenth rock tagged by the orphanage so far, but it's the first that she's tagged by herself, and that makes it special. She bounces off the other side of the commons, surprising one of Oscar's cane toads - which should be locked down in the farm, it's not clear how it got here - and the audio repeaters copy the incoming signal, noise-fuzzed echoes of a thousand fossilized infants' video shows. + +* * * + +"You're so prompt, Amber," Pierre whines when she corners him in the canteen. + +"Well, yeah!" She tosses her head, barely concealing a smirk of delight at her own brilliance. She knows it isn't nice, but Mom is a long way away, and Dad and Stepmom don't care about that kind of thing. "I'm brilliant, me," she announces. "Now what about our bet?" + +"Aww." Pierre thrusts his hands deep into his pockets. "But I don't have two million on me in change right now. Next cycle?" + +"Huh?" She's outraged. "But we had a bet!" + +"Uh, Dr. Bayes said you weren't going to make it this time, either, so I stuck my smart money in an options trade. If I take it out now, I'll take a big hit. Can you give me until cycle's end?" + +"You should know better than to trust a sim, Pee." Her avatar blazes at him with early-teen contempt: Pierre hunches his shoulders under her gaze. He's only twelve, freckled, hasn't yet learned that you don't welsh on a deal. "I'll let you do it this time," she announces, "but you'll have to pay for it. I want interest." + +He sighs. "What base rate are you -" + +"No, your interest! Slave for a cycle!" She grins malevolently. + +And his face shifts abruptly into apprehension: "As long as you don't make me clean the litter tray again. You aren't planning on doing that, are you?" + +* * * + +_1 Welcome to the fourth decade. The thinking mass of the solar system now exceeds one MIPS per gram; it's still pretty dumb, but it's not dumb all over. The human population is near maximum overshoot, pushing nine billion, but its growth rate is tipping toward negative numbers, and bits of what used to be the first world are now facing a middle-aged average. Human cogitation provides about 10^{28}^ MIPS of the solar system's brainpower. The real thinking is mostly done by the halo of a thousand trillion processors that surround the meat machines with a haze of computation - individually a tenth as powerful as a human brain, collectively they're ten thousand times more powerful, and their numbers are doubling every twenty million seconds. They're up to 10^{33}^ MIPS and rising, although there's a long way to go before the solar system is fully awake. + +_1 Technologies come, technologies go, but nobody even five years ago predicted that there'd be tinned primates in orbit around Jupiter by now: A synergy of emergent industries and strange business models have kick-started the space age again, aided and abetted by the discovery of (so far undecrypted) signals from ETs. Unexpected fringe riders are developing new ecological niches on the edge of the human information space, light-minutes and light-hours from the core, as an expansion that has hung fire since the 1970s gets under way. + +_1 Amber, like most of the postindustrialists aboard the orphanage ship Ernst Sanger, is in her early teens: While their natural abilities are in many cases enhanced by germ-line genetic recombination, thanks to her mother's early ideals she has to rely on brute computational enhancements. She doesn't have a posterior parietal cortex hacked for extra short-term memory, or an anterior superior temporal gyrus tweaked for superior verbal insight, but she's grown up with neural implants that feel as natural to her as lungs or fingers. Half her wetware is running outside her skull on an array of processor nodes hooked into her brain by quantum-entangled communication channels - her own personal metacortex. These kids are mutant youth, burning bright: Not quite incomprehensible to their parents, but profoundly alien - the generation gap is as wide as the 1960s and as deep as the solar system. Their parents, born in the gutter years of the twenty-first century, grew up with white elephant shuttles and a space station that just went round and round, and computers that went beep when you pushed their buttons. The idea that Jupiter orbit was somewhere you could go was as profoundly counterintuitive as the Internet to a baby boomer. + +_1 Most of the passengers on the can have run away from parents who think that teenagers belong in school, unable to come to terms with a generation so heavily augmented that they are fundamentally brighter than the adults around them. Amber was fluent in nine languages by the age of six, only two of them human and six of them serializable; when she was seven, her mother took her to the school psychiatrist for speaking in synthetic tongues. That was the final straw for Amber: using an illicit anonymous phone, she called her father. Her mother had him under a restraining order, but it hadn't occurred to her to apply for an order against his partner ... + +* * * + +Vast whorls of cloud ripple beneath the ship's drive stinger: Orange and brown and muddy gray streaks slowly crawl across the bloated horizon of Jupiter. Sanger is nearing perijove, deep within the gas giant's lethal magnetic field; static discharges flicker along the tube, arcing over near the deep violet exhaust cloud emerging from the magnetic mirrors of the ship's VASIMR motor. The plasma rocket is cranked up to high mass flow, its specific impulse almost as low as a fission rocket but producing maximum thrust as the assembly creaks and groans through the gravitational assist maneuver. In another hour, the drive will flicker off, and the orphanage will fall up and out toward Ganymede, before dropping back in toward orbit around Amalthea, Jupiter's fourth moon (and source of much of the material in the Gossamer ring). They're not the first canned primates to make it to Jupiter subsystem, but they're one of the first wholly private ventures. The bandwidth out here sucks dead slugs through a straw, with millions of kilometers of vacuum separating them from scant hundreds of mouse-brained microprobes and a few dinosaurs left behind by NASA or ESA. They're so far from the inner system that a good chunk of the ship's communications array is given over to caching: The news is whole kiloseconds old by the time it gets out here. + +Amber, along with about half the waking passengers, watches in fascination from the common room. The commons are a long axial cylinder, a double-hulled inflatable at the center of the ship with a large part of their liquid water supply stored in its wall tubes. The far end is video-enabled, showing them a real-time 3D view of the planet as it rolls beneath them: in reality, there's as much mass as possible between them and the trapped particles in the Jovian magnetic envelope. "I could go swimming in that," sighs Lilly. "Just imagine, diving into that sea ..." Her avatar appears in the window, riding a silver surfboard down the kilometers of vacuum. + +"Nice case of wind-burn you've got there," someone jeers - Kas. Suddenly Lilly's avatar, hitherto clad in a shimmering metallic swimsuit, turns to the texture of baked meat and waggles sausage fingers up at them in warning. + +"Same to you and the window you climbed in through!" Abruptly the virtual vacuum outside the window is full of bodies, most of them human, contorting and writhing and morphing in mock-combat as half the kids pitch into the virtual death match. It's a gesture in the face of the sharp fear that outside the thin walls of the orphanage lies an environment that really is as hostile as Lilly's toasted avatar would indicate. + +Amber turns back to her slate: She's working through a complex mess of forms, necessary before the expedition can start work. Facts and figures that are never far away crowd around her, intimidating. Jupiter weighs 1.9 x 10^{27}^ kilograms. There are twenty-nine Jovian moons and an estimated two hundred thousand minor bodies, lumps of rock, and bits of debris crowded around them - debris above the size of ring fragments, for Jupiter (like Saturn) has rings, albeit not as prominent. A total of six major national orbiter platforms have made it out here - and another two hundred and seventeen microprobes, all but six of them private entertainment platforms. The first human expedition was put together by ESA Studios six years ago, followed by a couple of wildcat mining prospectors and a M-commerce bus that scattered half a million picoprobes throughout Jupiter subsystem. Now the Sanger has arrived, along with another three monkey cans (one from Mars, two more from LEO) and it looks as if colonization is about to explode, except that there are at least four mutually exclusive Grand Plans for what to do with old Jove's mass. + +Someone prods her. "Hey, Amber, what are you up to?" + +She opens her eyes. "Doing my homework." It's Su Ang. "Look, we're going to Amalthea, aren't we? But we file our accounts in Reno, so we have to do all this paperwork. Monica asked me to help. It's insane." + +Ang leans over and reads, upside down. "Environmental Protection Agency?" + +"Yeah. Estimated Environmental Impact Forward Analysis 204.6b, Page Two. They want me to 'list any bodies of standing water within five kilometers of the designated mining area. If excavating below the water table, list any wellsprings, reservoirs, and streams within depth of excavation in meters multiplied by five hundred meters up to a maximum distance of ten kilometers downstream of direction of bedding plane flow. For each body of water, itemize any endangered or listed species of bird, fish, mammal, reptile, invertebrate, or plant living within ten kilometers -'" + +" - of a mine on Amalthea. Which orbits one hundred and eighty thousand kilometers above Jupiter, has no atmosphere, and where you can pick up a whole body radiation dose of ten Grays in half an hour on the surface." Ang shakes her head, then spoils it by giggling. Amber glances up. + +On the wall in front of her someone - Nicky or Boris, probably - has pasted a caricature of her own avatar into the virch fight. She's being hugged from behind by a giant cartoon dog with floppy ears and an improbably large erection, who's singing anatomically improbable suggestions while fondling himself suggestively. "Fuck that!" Shocked out of her distraction - and angry - Amber drops her stack of paperwork and throws a new avatar at the screen, one an agent of hers dreamed up overnight. It's called Spike, and it's not friendly. Spike rips off the dog's head and pisses down its trachea, which is anatomically correct for a human being: Meanwhile she looks around, trying to work out which of the laughing idiot children and lost geeks around her could have sent such an unpleasant message. + +"Children! Chill out." She glances round - one of the Franklins (this is the twentysomething dark-skinned female one) is frowning at them. "Can't we leave you alone for half a K without a fight?" + +Amber pouts. "It's not a fight; it's a forceful exchange of opinions." + +"Hah." The Franklin leans back in midair, arms crossed, an expression of supercilious smugness pasted across her-their face. "Heard that one before. Anyway" - she-they gesture, and the screen goes blank - "I've got news for you pesky kids. We got a claim verified! Factory starts work as soon as we shut down the stinger and finish filing all the paperwork via our lawyers. Now's our chance to earn our upkeep ..." + +* * * + +Amber is flashing on ancient history, five years back along her time line. In her replay, she's in some kind of split-level ranch house out West. It's a temporary posting while her mother audits an obsolescent fab line enterprise that grinds out dead chips of VLSI silicon for Pentagon projects that have slipped behind the cutting edge. Her Mom leans over her, menacingly adult in her dark suit and chaperone earrings: "You're going to school, and that's that." + +Her mother is a blonde ice maiden madonna, one of the IRS's most productive bounty hunters - she can make grown CEOs panic just by blinking at them. Amber, a towheaded-eight-year old tearaway with a confusing mix of identities, inexperience blurring the boundary between self and grid, is not yet able to fight back effectively. After a couple of seconds, she verbalizes a rather feeble protest: "Don't want to!" One of her stance daemons whispers that this is the wrong approach to take, so she modifies it: "They'll beat up on me, Mom. I'm too different. Sides, I know you want me socialized up with my grade metrics, but isn't that what sideband's for? I can socialize real good at home." + +Mom does something unexpected: She kneels, putting herself on eye-level with Amber. They're on the living room carpet, all seventies-retro brown corduroy and acid-orange Paisley wallpaper, and for once, they're alone: The domestic robots are in hiding while the humans hold court. "Listen to me, sweetie." Mom's voice is breathy, laden with an emotional undertow as strong and stifling as the eau-de-Cologne she wears to the office to cover up the scent of her client's fear. "I know that's what your father's writing to you, but it isn't true. You need the company - physical company - of children your own age. You're natural, not some kind of engineered freak, even with your skullset. Natural children like you need company or they grow up all weird. Socialization isn't just about texting your own kind, Amber, you need to know how to deal with people who're different, too. I want you to grow up happy, and that won't happen if you don't learn to get on with children your own age. You're not going to be some kind of cyborg otaku freak, Amber. But to get healthy, you've got to go to school, build up a mental immune system. Anyway, that which does not destroy us makes us stronger, right?" + +It's crude moral blackmail, transparent as glass and manipulative as hell, but Amber's corpus logica flags it with a heavy emotional sprite miming the likelihood of physical discipline if she rises to the bait: Mom is agitated, nostrils slightly flared, ventilation rate up, some vasodilatation visible in her cheeks. Amber - in combination with her skullset and the metacortex of distributed agents it supports - is mature enough at eight years to model, anticipate, and avoid corporal punishment. But her stature and lack of physical maturity conspire to put her at a disadvantage when negotiating with adults who matured in a simpler age. She sighs, then puts on a pout to let Mom know she's still reluctant, but obedient. "O-kay. If you say so." + +Mom stands up, eyes distant - probably telling Saturn to warm his engine and open the garage doors. "I say so, punkin. Go get your shoes on, now. I'll pick you up on my way back from work, and I've got a treat for you; we're going to check out a new church together this evening." Mom smiles, but it doesn't reach her eyes: Amber has already figured out she's going through the motions in order to give her the simulated middle-American upbringing she believes Amber desperately needs before she runs head first into the future. She doesn't like the churches any more than her daughter does, but arguing won't work. "You be a good little girl, now, all right?" + +* * * + +The imam is at prayer in a gyrostabilized mosque. + +His mosque is not very big, and it has a congregation of one: He prays on his own every seventeen thousand two hundred and eighty seconds. He also webcasts the call to prayer, but there are no other believers in trans-Jovian space to answer the summons. Between prayers, he splits his attention between the exigencies of life support and scholarship. A student both of the Hadith and of knowledge-based systems, Sadeq collaborates in a project with other scholars who are building a revised concordance of all the known isnads, to provide a basis for exploring the body of Islamic jurisprudence from a new perspective - one they'll need sorely if the looked-for breakthroughs in communication with aliens emerge. Their goal is to answer the vexatious questions that bedevil Islam in the age of accelerated consciousness; and as their representative in orbit around Jupiter, these questions fall most heavily on Sadeq's shoulders. + +Sadeq is a slightly built man, with close-cropped black hair and a perpetually tired expression: Unlike the orphanage crew he has a ship to himself. The ship started out as an Iranian knock off of a Shenzhou-B capsule, with a Chinese type 921 space-station module tacked onto its tail; but the clunky, 1960s look-alike - a glittering aluminum dragonfly mating with a Coke can - has a weirdly contoured M2P2 pod strapped to its nose. The M2P2 pod is a plasma sail, built in orbit by one of Daewoo's wake shield facilities. It dragged Sadeq and his cramped space station out to Jupiter in just four months, surfing on the solar breeze. His presence may be a triumph for the umma, but he feels acutely alone out here: When he turns his compact observatory's mirrors in the direction of the Sanger, he is struck by its size and purposeful appearance. Sanger's superior size speaks of the efficiency of the Western financial instruments, semiautonomous investment trusts with variable business-cycle accounting protocols that make possible the development of commercial space exploration. The Prophet, peace be unto him, may have condemned usury; but it might well have given him pause to see these engines of capital formation demonstrate their power above the Great Red Spot. + +After finishing his prayers, Sadeq spends a couple of precious extra minutes on his mat. He finds meditation comes hard in this environment: Kneel in silence, and you become aware of the hum of ventilation fans, the smell of old socks and sweat, the metallic taste of ozone from the Elektron oxygen generators. It is hard to approach God in this third hand spaceship, a hand-me-down from arrogant Russia to ambitious China, and finally to the religious trustees of Qom, who have better uses for it than any of the heathen states imagine. They've pushed it far, this little toy space station; but who's to say if it is God's intention for humans to live here, in orbit around this swollen alien giant of a planet? + +Sadeq shakes his head; he rolls his mat up and stows it beside the solitary porthole with a quiet sigh. A stab of homesickness wrenches at him, for his childhood in hot, dusty Yazd and his many years as a student in Qom: He steadies himself by looking round, searching the station that is now as familiar to him as the fourth-floor concrete apartment his parents - a car factory worker and his wife - raised him in. The interior of the station is the size of a school bus, every surface cluttered with storage areas, instrument consoles, and layers of exposed pipes. A couple of globules of antifreeze jiggle like stranded jellyfish near a heat exchanger that has been giving him grief. Sadeq kicks off in search of the squeeze bottle he keeps for this purpose, then gathers up his roll of tools and instructs one of his agents to find him the relevant part of the maintenance log: it's time to fix the leaky joint for good. + +An hour or so of serious plumbing and he will eat freeze-dried lamb stew, with a paste of lentils and boiled rice, and a bulb of strong tea to wash it down, then sit down to review his next fly-by maneuvering sequence. Perhaps, God willing, there will be no further system alerts and he'll be able to spend an hour or two on his research between evening and final prayers. Maybe the day after tomorrow there'll even be time to relax for a couple of hours, to watch one of the old movies that he finds so fascinating for their insights into alien cultures: Apollo Thirteen, perhaps. It isn't easy, being the crew aboard a long-duration space mission. It's even harder for Sadeq, up here alone with nobody to talk to, for the communications lag to earth is more than half an hour each way - and as far as he knows, he's the only believer within half a billion kilometers. + +* * * + +Amber dials a number in Paris and waits until someone answers the phone. She knows the strange woman on the phone's tiny screen: Mom calls her "your father's fancy bitch" with a peculiar tight smile. (The one time Amber asked what a fancy bitch was, Mom slapped her - not hard, just a warning.) "Is Daddy there?" she asks. + +The strange woman looks slightly bemused. (Her hair is blonde, like Mom's, but the color clearly came out of a bleach bottle, and it's cut really short, and her skin is dark.) "Oui. Ah, yes." She smiles tentatively. "I am sorry, it is a disposable phone you are using? You want to talk to 'im?" + +It comes out in a rush: "I want to see him." Amber clutches the phone like a lifesaver: It's a cheap disposable cereal-packet item, and the cardboard is already softening in her sweaty grip. "Momma won't let me, Auntie 'Nette -" + +"Hush." Annette, who has lived with Amber's father for more than twice as long as her mother, smiles. "You are sure that telephone, your mother does not know of it?" + +Amber looks around. She's the only child in the restroom because it isn't break time, and she told teacher she had to go 'right now': "I'm sure, P20 confidence factor greater than 0.9." Her Bayesian head tells her that she can't reason accurately about this because Momma has never caught her with an illicit phone before, but what the hell. It can't get Dad into trouble if he doesn't know, can it? + +"Very good." Annette glances aside. "Manny, I have a surprise call for you." + +Daddy appears on screen. She can see all of his face, and he looks younger than last time: he must have stopped using those clunky old glasses. "Hi - Amber! Where are you? Does your mother know you're calling me?" He looks slightly worried. + +"No," she says confidently, "the phone came in a box of Grahams." + +"Phew. Listen, sweet, you must remember never, ever to call me where your mom may find out. Otherwise, she'll get her lawyers to come after me with thumbscrews and hot pincers, because she'll say I made you call me. And not even Uncle Gianni will be able to sort that out. Understand?" + +"Yes, Daddy." She sighs. "Even though that's not true, I know. Don't you want to know why I called?" + +"Um." For a moment, he looks taken aback. Then he nods, thoughtfully. Amber likes Daddy because he takes her seriously most times when she talks to him. It's a phreaking nuisance having to borrow her classmate's phones or tunnel past Mom's pit-bull firewall, but Dad doesn't assume that she can't know anything just because she's only a kid. "Go ahead. There's something you need to get off your chest? How've things been, anyway?" + +She's going to have to be brief: The disposaphone comes prepaid, the international tariff it's using is lousy, and the break bell is going to ring any minute. "I want out, Daddy. I mean it. Mom's getting loopier every week - she's dragging me round all these churches now, and yesterday, she threw a fit over me talking to my terminal. She wants me to see the school shrink, I mean, what for? I can't do what she wants - I'm not her little girl! Every time I tunnel out, she tries to put a content-bot on me, and it's making my head hurt - I can't even think straight anymore!" To her surprise, Amber feels tears starting. "Get me out of here!" + +The view of her father shakes, pans round to show her Tante Annette looking worried. "You know, your father, he cannot do anything? The divorce lawyers, they will tie him up." + +Amber sniffs. "Can you help?" she asks. + +"I'll see what I can do," her father's fancy bitch promises as the break bell rings. + +* * * + +An instrument package peels away from the Sanger's claim jumper drone and drops toward the potato-shaped rock, fifty kilometers below. Jupiter hangs huge and gibbous in the background, impressionist wallpaper for a mad cosmologist: Pierre bites his lower lip as he concentrates on steering it. + +Amber, wearing a black sleeping sack, hovers over his head like a giant bat, enjoying her freedom for a shift. She looks down on Pierre's bowl-cut hair, wiry arms gripping either side of the viewing table, and wonders what to have him do next. A slave for a day is an interesting experience: Life aboard the Sanger is busy enough that nobody gets much slack time (at least not until the big habitats have been assembled and the high-bandwidth dish is pointing back at Earth). They're unrolling everything to a hugely intricate plan generated by the backers' critical path team, and there isn't much room for idling: The expedition relies on shamelessly exploiting child labor - they're lighter on the life-support consumables than adults - working the kids twelve hour days to assemble a toe hold on the shore of the future. (When they're older and their options vest fully, they'll all be rich, but that hasn't stopped the outraged herdnews propaganda chorus from sounding off back home.) For Amber, the chance to let somebody else work for her is novel, and she's trying to make every minute count. + +"Hey, slave," she calls idly; "how you doing?" + +Pierre sniffs. "It's going okay." He refuses to glance up at her, Amber notices. He's thirteen. Isn't he supposed to be obsessed with girls by that age? She notices his quiet, intense focus, runs a stealthy probe along his outer boundary; he shows no sign of noticing it, but it bounces off, unable to chink his mental armor. "Got cruise speed," he says, taciturn, as two tonnes of metal, ceramics and diamond-phase weirdness hurtle toward the surface of Barney at three hundred kilometers per hour. "Stop shoving me, there's a three-second lag, and I don't want to get into a feedback control loop with it." + +"I'll shove if I want, slave." She sticks her tongue out at him. + +"And if you make me drop it?" he asks. Looking up at her, his face serious - "Are we supposed to be doing this?" + +"You cover your ass, and I'll cover mine," she says, then turns bright red. "You know what I mean." + +"I do, do I?" Pierre grins widely, then turns back to the console: "Aww, that's no fun. And you want to tune whatever bit-bucket you've given control of your speech centers to - they're putting out way too much double entendre, somebody might mistake you for a grown-up." + +"You stick to your business, and I'll stick to mine," she says, emphatically. "And you can start by telling me what's happening." + +"Nothing." He leans back and crosses his arms, grimacing at the screen. "It's going to drift for five hundred seconds, now, then there's the midcourse correction and a deceleration burn before touch down. And then it's going to be an hour while it unwraps itself and starts unwinding the cable spool. What do you want, minute noodles with that?" + +"Uh-huh." Amber spreads her bat wings and lies back in mid air, staring at the window, feeling rich and idle as Pierre works his way through her day shift. "Wake me when there's something interesting to see." Maybe she should have had him feed her peeled grapes or give her a foot massage, something more traditionally hedonistic; but right now, just knowing he's her own little piece of alienated labor is doing good things for her self-esteem. Looking at those tense arms, the curve of his neck, she thinks maybe there's something to this whispering and giggling he really fancies you stuff the older girls go in for - + +The window rings like a gong, and Pierre coughs. "You've got mail," he says drily. "You want me to read it for you?" + +"What the -" A message is flooding across the screen, right-to-left snaky script like the stuff on her corporate instrument (now lodged safely in a deposit box in Zurich). It takes her a while to load in a grammar agent that can handle Arabic, and another minute for her to take in the meaning of the message. When she does, she starts swearing, loudly and continuously. + +"You bitch, Mom, why'd you have to go and do a thing like that?" + +* * * + +The corporate instrument arrived in a huge FedEx box addressed to Amber: It happened on her birthday while Mom was at work, and she remembers it as if it was only an hour ago. + +She remembers reaching up and scraping her thumb over the deliveryman's clipboard, the rough feel of the microsequencers sampling her DNA. She drags the package inside. When she pulls the tab on the box, it unpacks itself automatically, regurgitating a compact 3D printer, half a ream of paper printed in old-fashioned dumb ink, and a small calico cat with a large @-symbol on its flank. The cat hops out of the box, stretches, shakes its head, and glares at her. "You're Amber?" it mrowls. It actually makes real cat noises, but the meaning is clear - it's able to talk directly to her linguistic competence interface. + +"Yeah," she says, shyly. "Are you from Tante 'Nette?" + +"No, I'm from the fucking tooth fairy." It leans over and head-butts her knee, strops the scent glands between its ears all over her skirt. "Listen, you got any tuna in the kitchen?" + +"Mom doesn't believe in seafood," says Amber. "It's all foreign-farmed muck these days, she says. It's my birthday today, did I tell you?" + +"Happy fucking birthday, then." The cat yawns, convincingly realistic. "Here's your dad's present. Bastard put me in hibernation and sent me along to show you how to work it. You take my advice, you'll trash the fucker. No good will come of it." + +Amber interrupts the cat's grumbling by clapping her hands gleefully; "So what is it?" she demands: "A new invention? Some kind of weird sex toy from Amsterdam? A gun, so I can shoot Pastor Wallace?" + +"Naah." The cat yawns, yet again, and curls up on the floor next to the 3D printer. "It's some kinda dodgy business model to get you out of hock to your mom. Better be careful, though - he says its legality is narrowly scoped jurisdiction-wise. Your Mom might be able to undermine it if she learns about how it works." + +"Wow. Like, how totally cool." In truth, Amber is delighted because it is her birthday; but Mom's at work, and Amber's home alone, with just the TV in moral majority mode for company. Things have gone downhill since Mom decided a modal average dose of old-time religion was an essential part of her upbringing, to the point that absolutely the best thing in the world Tante Annette could send her is some scam programmed by Daddy to take her away. If it doesn't work, Mom will take her to Church tonight, and she's certain she'll end up making a scene again. Amber's tolerance of willful idiocy is diminishing rapidly, and while building up her memetic immunity might be the real reason Mom's forcing this shit on her - it's always hard to tell with Mom - things have been tense ever since she got expelled from Sunday school for mounting a spirited defense of the theory of evolution. + +The cat sniffs in the direction of the printer. "Why doncha fire it up?" Amber opens the lid on the printer, removes the packing popcorn, and plugs it in. There's a whir and a rush of waste heat from its rear as it cools the imaging heads down to working temperature and registers her ownership. + +"What do I do now?" she asks. + +"Pick up the page labeled READ ME and follow the instructions," the cat recites in a bored singsong voice. It winks at her, then fakes an exaggerated French accent: "Le READ ME, il sont contain directions pour executing le corporate instrument dans le boit. In event of perplexity, consult the accompanying Aineko for clarification." The cat wrinkles its nose rapidly, as if it's about to bite an invisible insect: "Warning: Don't rely on your father's cat's opinions, it is a perverse beast and cannot be trusted. Your mother helped seed its meme base, back when they were married. Ends." It mumbles on for a while: "Fucking snotty Parisian bitch, I'll piss in her knicker drawer, I'll molt in her bidet ..." + +"Don't be vile." Amber scans the README quickly. Corporate instruments are strong magic, according to Daddy, and this one is exotic by any standards - a limited company established in Yemen, contorted by the intersection between shari'a and the global legislatosaurus. Understanding it isn't easy, even with a personal net full of subsapient agents that have full access to whole libraries of international trade law - the bottleneck is comprehension. Amber finds the documents highly puzzling. It's not the fact that half of them are written in Arabic that bothers her - that's what her grammar engine is for - or even that they're full of S-expressions and semidigestible chunks of LISP: But the company seems to assert that it exists for the sole purpose of owning chattel slaves. + +"What's going on?" she asks the cat. "What's this all about?" + +The cat sneezes, then looks disgusted. "This wasn't my idea, big shot. Your father is a very weird guy, and your mother hates him lots because she's still in love with him. She's got kinks, y'know? Or maybe she's sublimating them, if she's serious about this church shit she's putting you through. He thinks she's a control freak, and he's not entirely wrong. Anyway, after your dad ran off in search of another dom, she took out an injunction against him. But she forgot to cover his partner, and she bought this parcel of worms and sent them to you, okay? Annie is a real bitch, but he's got her wrapped right around his finger, or something. Anyway, he built these companies and this printer - which isn't hardwired to a filtering proxy, like your mom's - specifically to let you get away from her legally. If that's what you want to do." + +Amber fast-forwards through the dynamic chunks of the README - boring legal UML diagrams, mostly - soaking up the gist of the plan. Yemen is one of the few countries to implement traditional Sunni shari'a law and a limited liability company scam at the same time. Owning slaves is legal - the fiction is that the owner has an option hedged on the indentured laborer's future output, with interest payments that grow faster than the unfortunate victim can pay them off - and companies are legal entities. If Amber sells herself into slavery to this company, she will become a slave and the company will be legally liable for her actions and upkeep. The rest of the legal instrument - about ninety percent of it, in fact - is a set of self-modifying corporate mechanisms coded in a variety of jurisdictions that permit Turing-complete company constitutions, and which act as an ownership shell for the slavery contract. At the far end of the corporate shell game is a trust fund of which Amber is the prime beneficiary and shareholder. When she reaches the age of majority, she'll acquire total control over all the companies in the network and can dissolve her slave contract; until then, the trust fund (which she essentially owns) oversees the company that owns her (and keeps it safe from hostile takeover bids). Oh, and the company network is primed by an extraordinary general meeting that instructed it to move the trust's assets to Paris immediately. A one-way airline ticket is enclosed. + +"You think I should take this?" she asks uncertainly. It's hard to tell how smart the cat really is - there's probably a yawning vacuum behind those semantic networks if you dig deep enough - but it tells a pretty convincing tale. + +The cat squats and curls its tail protectively around its paws: "I'm saying nothing, you know what I mean? You take this, you can go live with your dad. But it won't stop your ma coming after him with a horsewhip, and after you with a bunch of lawyers and a set of handcuffs. You want my advice, you'll phone the Franklins and get aboard their off-planet mining scam. In space, no one can serve a writ on you. Plus, they got long-term plans to get into the CETI market, cracking alien network packets. You want my honest opinion, you wouldn't like it in Paris after a bit. Your Dad and the frog bitch, they're swingers, y'know? No time in their lives for a kid. Or a cat like me, now I think of it. They're working all day for the Senator, and out all hours of night doing drugs, fetish parties, raves, opera, that kind of adult shit. Your Dad dresses in frocks more than your mom, and your Tante 'Nettie leads him around the apartment on a chain when they're not having noisy sex on the balcony. They'd cramp your style, kid. You shouldn't have to put up with parents who have more of a life than you do." + +"Huh." Amber wrinkles her nose, half-disgusted by the cat's transparent scheming, and half-acknowledging its message: I better think hard about this, she decides. Then she flies off in so many directions at once that she nearly browns out the household broadband. Part of her is examining the intricate card pyramid of company structures; somewhere else, she's thinking about what can go wrong, while another bit (probably some of her wet, messy glandular biological self) is thinking about how nice it would be to see Daddy again, albeit with some trepidation. Parents aren't supposed to have sex - isn't there a law, or something? "Tell me about the Franklins? Are they married? Singular?" + +The 3D printer is cranking up. It hisses slightly, dissipating heat from the hard vacuum chamber in its supercooled workspace. Deep in its guts it creates coherent atom beams, from a bunch of Bose-Einstein condensates hovering on the edge of absolute zero. By superimposing interference patterns on them, it generates an atomic hologram, building a perfect replica of some original artifact, right down to the atomic level - there are no clunky moving nanotechnology parts to break or overheat or mutate. Something is going to come out of the printer in half an hour, something cloned off its original right down to the individual quantum states of its component atomic nuclei. The cat, seemingly oblivious, shuffles closer to the warm air exhaust ducts. + +"Bob Franklin, he died about two, three years before you were born - your dad did business with him. So did your mom. Anyway, he had chunks of his noumen preserved and the estate trustees are trying to re-create his consciousness by cross-loading him in their implants. They're sort of a borganism, but with money and style. Anyway, Bob got into the space biz back then, with some financial wizardry a friend of your father whipped up for him, and now they're building a spacehab that they're going to take all the way out to Jupiter, where they can dismantle a couple of small moons and begin building helium-three refineries. It's that CETI scam I told you about earlier, but they've got a whole load of other angles on it for the long term. See, your dad's friends have cracked the broadcast, the one everybody knows about. It's a bunch of instructions for finding the nearest router that plugs into the galactic Internet. And they want to go out there and talk to some aliens." + +This is mostly going right over Amber's head - she'll have to learn what helium-three refineries are later - but the idea of running away to space has a certain appeal. Adventure, that's what. Amber looks around the living room and sees it for a moment as a capsule, a small wooden cell locked deep in a vision of a middle America that never was - the one her mom wants to bring her up in, like a misshapen Skinner box designed to train her to be normal. "Is Jupiter fun?" she asks. "I know it's big and not very dense, but is it, like, a happening place? Are there any aliens there?" + +"It's the first place you need to go if you want to get to meet the aliens eventually," says the cat as the printer clanks and disgorges a fake passport (convincingly aged), an intricate metal seal engraved with Arabic script, and a tailored wide-spectrum vaccine targeted on Amber's immature immune system. "Stick that on your wrist, sign the three top copies, put them in the envelope, and let's get going. We've got a flight to catch, slave." + +* * * + +Sadeq is eating his dinner when the first lawsuit in Jupiter orbit rolls in. + +Alone in the cramped humming void of his station, he considers the plea. The language is awkward, showing all the hallmarks of a crude machine translation: The supplicant is American, a woman, and - oddly - claims to be a Christian. This is surprising enough, but the nature of her claim is, at face value, preposterous. He forces himself to finish his bread, then bag the waste and clean the platter, before he gives it his full consideration. Is it a tasteless joke? Evidently not. As the only quadi outside the orbit of Mars, he is uniquely qualified to hear it, and it is a case that cries out for justice. + +A woman who leads a God-fearing life - not a correct one, no, but she shows some signs of humility and progress toward a deeper understanding - is deprived of her child by the machinations of a feckless husband who deserted her years before. That the woman was raising the child alone strikes Sadeq as disturbingly Western, but pardonable when he reads her account of the feckless one's behavior, which is pretty lax; an ill fate indeed would await any child that this man raises to adulthood. This man deprives her of her child, but not by legitimate means: He doesn't take the child into his own household or make any attempt to raise her, either in accordance with his own customs or the precepts of shari'a. Instead, he enslaves her wickedly in the mire of the Western legal tradition, then casts her into outer darkness to be used as a laborer by the dubious forces of self-proclaimed "progress". The same forces Sadeq has been sent to confront, as representative of the umma in orbit around Jupiter. + +Sadeq scratches his short beard thoughtfully. A nasty tale, but what can he do about it? "Computer," he says, "a reply to this supplicant: My sympathies lie with you in the manner of your suffering, but I fail to see in what way I can be of assistance. Your heart cries out for help before God (blessed be his name), but surely this is a matter for the temporal authorities of the dar al-Harb." He pauses: Or is it? he wonders. Legal wheels begin to turn in his mind. "If you can but find your way to extending to me a path by which I can assert the primacy of shari'a over your daughter, I shall apply myself to constructing a case for her emancipation, to the greater glory of God (blessed be his name). Ends, sigblock, send." + +Releasing the Velcro straps that hold him at the table, Sadeq floats up and kicks gently toward the forward end of the cramped habitat. The controls of the telescope are positioned between the ultrasonic clothing cleaner and the lithium hydroxide scrubbers. They're already freed up, because he was conducting a wide-field survey of the inner ring, looking for the signature of water ice. It is the work of a few moments to pipe the navigation and tracking system into the telescope's controller and direct it to hunt for the big foreign ship of fools. Something nudges at Sadeq's mind urgently, an irritating realization that he may have missed something in the woman's e-mail: there were a number of huge attachments. With half his mind he surfs the news digest his scholarly peers send him daily. Meanwhile, he waits patiently for the telescope to find the speck of light that the poor woman's daughter is enslaved within. + +This might be a way in, he realizes, a way to enter dialogue with them. Let the hard questions answer themselves, elegantly. There will be no need for confrontation if they can be convinced that their plans are faulty: no need to defend the godly from the latter-day Tower of Babel these people propose to build. If this woman Pamela means what she says, Sadeq need not end his days out here in the cold between the worlds, away from his elderly parents and brother, and his colleagues and friends. And he will be profoundly grateful, because in his heart of hearts, he knows that he is less a warrior than a scholar. + +* * * + +"I'm sorry, but the borg is attempting to assimilate a lawsuit," says the receptionist. "Will you hold?" + +"Crud." Amber blinks the Binary Betty answerphone sprite out of her eye and glances round at the cabin. "That is so last century," she grumbles. "Who do they think they are?" + +"Dr. Robert H. Franklin," volunteers the cat. "It's a losing proposition if you ask me. Bob was so fond of his dope there's this whole hippy group mind that's grown up using his state vector as a bong -" + +"Shut the fuck up!" Amber shouts at him. Instantly contrite (for yelling in an inflatable spacecraft is a major faux pas): "Sorry." She spawns an autonomic thread with full parasympathetic nervous control, tells it to calm her down, then spawns a couple more to go forth and become fuqaha, expert on shari'a law. She realizes she's buying up way too much of the orphanage's scarce bandwidth - time that will have to be paid for in chores, later - but it's necessary. "Mom's gone too far. This time it's war." + +She slams out of her cabin and spins right round in the central axis of the hab, a rogue missile pinging for a target to vent her rage on. A tantrum would be good - + +But her body is telling her to chill out, take ten, and there's a drone of scriptural lore dribbling away in the back of her head, and she's feeling frustrated and angry and not in control, but not really mad anymore. It was like this three years ago when Mom noticed her getting on too well with Jenny Morgan and moved her to a new school district - she said it was a work assignment, but Amber knows better, Mom asked for it - just to keep her dependent and helpless. Mom is a control-freak with fixed ideas about how to bring up a child, and ever since she lost Dad, she's been working her claws into Amber, making her upbringing a life's work - which is tough, because Amber is not good victim material, and is smart and well networked to boot. But now, Mom's found a way to fuck Amber over completely, even in Jupiter orbit, and if not for her skullware keeping a lid on things, Amber would be totally out of control. + +Instead of shouting at her cat or trying to message the Franklins, Amber goes to hunt down the borg in their meatspace den. + +There are sixteen borg aboard the Sanger - adults, members of the Franklin Collective, squatters in the ruins of Bob Franklin's posthumous vision. They lend bits of their brains to the task of running what science has been able to resurrect of the dead dot-com billionaire's mind, making him the first bodhisattva of the uploading age - apart from the lobster colony, of course. Their den mother is a woman called Monica: a willowy, brown-eyed hive queen with raster-burned corneal implants and a dry, sardonic delivery that can corrode egos like a desert wind. She's better than any of the others at running Bob, except for the creepy one called Jack, and she's no slouch when she's being herself (unlike Jack, who is never himself in public). Which probably explains why they elected her Maximum Leader of the expedition. + +Amber finds Monica in the number four kitchen garden, performing surgery on a filter that's been blocked by toad spawn. She's almost buried beneath a large pipe, her Velcro-taped tool kit waving in the breeze like strange blue air-kelp. "Monica? You got a minute?" + +"Sure, I have lots of minutes. Make yourself helpful? Pass me the antitorque wrench and a number six hex head." + +"Um." Amber captures the blue flag and fiddles around with its contents. Something that has batteries, motors, a flywheel counterweight, and laser gyros assembles itself - Amber passes it under the pipe. "Here. Listen, your phone is engaged." + +"I know. You've come to see me about your conversion, haven't you?" + +"Yes!" + +There's a clanking noise from under the pressure sump. "Take this." A plastic bag floats out, bulging with stray fasteners. "I got a bit of hoovering to do. Get yourself a mask if you don't already have one." + +A minute later, Amber is back beside Monica's legs, her face veiled by a filter mask. "I don't want this to go through," she says. "I don't care what Mom says, I'm not Moslem! This judge, he can't touch me. He can't," she adds, vehemence warring with uncertainty. + +"Maybe he doesn't want to?" Another bag: "Here, catch." + +Amber grabs the bag, a fraction of a second too late. She discovers the hard way that it's full of water and toadspawn. Stringy mucous ropes full of squiggling comma-shaped tadpoles explode all over the compartment and bounce off the walls in a shower of amphibian confetti. "Eew!" + +Monica squirms out from behind the pipe. "Oh, you didn't." She kicks off the consensus-defined floor and grabs a wad of absorbent paper from the spinner, whacks it across the ventilator shroud above the sump. Together they go after the toad spawn with rubbish bags and paper - by the time they've got the stringy mess mopped up, the spinner has begun to click and whir, processing cellulose from the algae tanks into fresh wipes. "That was not good," Monica says emphatically as the disposal bin sucks down her final bag. "You wouldn't happen to know how the toad got in here?" + +"No, but I ran into one that was loose in the commons, one shift before last cycle-end. Gave it a ride back to Oscar." + +"I'll have a word with him, then." Monica glares blackly at the pipe. "I'm going to have to go back and refit the filter in a minute. Do you want me to be Bob?" + +"Uh." Amber thinks. "Not sure. Your call." + +"All right, Bob coming on-line." Monica's face relaxes slightly, then her expression hardens. "Way I see it, you've got a choice. Your mother kinda boxed you in, hasn't she?" + +"Yes." Amber frowns. + +"So. Pretend I'm an idiot. Talk me through it, huh?" + +Amber drags herself alongside the hydro pipe and gets her head down, alongside Monica/Bob, who is floating with her feet near the floor. "I ran away from home. Mom owned me - that is, she had parental rights and Dad had none. So Dad, via a proxy, helped me sell myself into slavery to a company. The company was owned by a trust fund, and I'm the main beneficiary when I reach the age of majority. As a chattel, the company tells me what to do - legally - but the shell company is set to take my orders. So I'm autonomous. Right?" + +"That sounds like the sort of thing your father would do," Monica/Bob says neutrally. Overtaken by a sardonic middle-aged Silicon Valley drawl, her north-of-England accent sounds peculiarly mid-Atlantic. + +"Trouble is, most countries don't acknowledge slavery, they just dress it up pretty and call it in loco parentis or something. Those that do mostly don't have any equivalent of a limited liability company, much less one that can be directed by another company from abroad. Dad picked Yemen on the grounds that they've got this stupid brand of shari'a law - and a crap human rights record - but they're just about conformant to the open legal standards protocol, able to interface to EU norms via a Turkish legislative cut-out." + +"So." + +"Well, I guess I was technically a Janissary. Mom was doing her Christian phase, so that made me a Christian unbeliever slave of an Islamic company. Now the stupid bitch has gone and converted to shi'ism. Normally Islamic descent runs through the father, but she picked her sect carefully and chose one that's got a progressive view of women's rights: They're sort of Islamic fundamentalist liberal constructionists, 'what would the Prophet do if he was alive today and had to worry about self-replicating chewing gum factories' and that sort of thing. They generally take a progressive view of things like legal equality of the sexes because, for his time and place, the Prophet was way ahead of the ball and they figure they ought to follow his example. Anyway, that means Mom can assert that I am Moslem, and under Yemeni law, I get to be treated as a Moslem chattel of a company. And their legal code is very dubious about permitting slavery of Moslems. It's not that I have rights as such, but my pastoral well-being becomes the responsibility of the local imam, and -" She shrugs helplessly. + +"Has he tried to make you run under any new rules, yet?" asks Monica/Bob. "Has he put blocks on your freedom of agency, tried to mess with your mind? Insisted on libido dampers or a strict dress code?" + +"Not yet." Amber's expression is grim. "But he's no dummy. I figure he may be using Mom - and me - as a way of getting his fingers into this whole expedition. Staking a claim for jurisdiction, claim arbitration, that sort of thing. It could be worse; he might order me to comply fully with his specific implementation of shari'a. They permit implants, but require mandatory conceptual filtering: If I run that stuff, I'll end up believing it." + +"Okay." Monica does a slow backward somersault in midair. "Now tell me why you can't simply repudiate it." + +"Because." Deep breath. "I can do that in two ways. I can deny Islam, which makes me an apostate, and automatically terminates my indenture to the shell, so Mom owns me under US or EU law. Or I can say that the instrument has no legal standing because I was in the USA when I signed it, and slavery is illegal there, in which case Mom owns me. Or I can take the veil, live like a modest Moslem woman, do whatever the imam wants, and Mom doesn't own me - but she gets to appoint my chaperone. Oh Bob, she has planned this so well." + +"Uh-huh." Monica rotates back to the floor and looks at Amber, suddenly very Bob. "Now you've told me your troubles, start thinking like your dad. Your Dad had a dozen creative ideas before breakfast every day - it's how he made his name. Your mom has got you in a box. Think your way outside it: What can you do?" + +"Well." Amber rolls over and hugs the fat hydroponic duct to her chest like a life raft. "It's a legal paradox. I'm trapped because of the jurisdiction she's cornered me in. I could talk to the judge, I suppose, but she'll have picked him carefully." Her eyes narrow. "The jurisdiction. Hey, Bob." She lets go of the duct and floats free, hair streaming out behind her like a cometary halo. "How do I go about getting myself a new jurisdiction?" + +Monica grins. "I seem to recall the traditional way was to grab yourself some land and set yourself up as king; but there are other ways. I've got some friends I think you should meet. They're not good conversationalists and there's a two-hour lightspeed delay, but I think you'll find they've answered that question already. But why don't you talk to the imam first and find out what he's like? He may surprise you. After all, he was already out here before your mom decided to use him to make a point." + +* * * + +The Sanger hangs in orbit thirty kilometers up, circling the waist of potato-shaped Amalthea. Drones swarm across the slopes of Mons Lyctos, ten kilometers above the mean surface level. They kick up clouds of reddish sulphate dust as they spread transparent sheets across the barren moonscape. This close to Jupiter (a mere hundred and eighty thousand kilometers above the swirling madness of the cloudscape) the gas giant fills half the sky with a perpetually changing clock face, for Amalthea orbits the master in just under twelve hours. The Sanger's radiation shields are running at full power, shrouding the ship in a corona of rippling plasma: Radio is useless, and the human miners control their drones via an intricate network of laser circuits. Other, larger drones are unwinding spools of heavy electrical cable north and south from the landing site. Once the circuits are connected, they will form a coil cutting through Jupiter's magnetic field, generating electrical current (and imperceptibly sapping the moon's orbital momentum). + +Amber sighs and looks, for the sixth time this hour, at the webcam plastered on the side of her cabin. She's taken down the posters and told the toys to tidy themselves away. In another two thousand seconds, the tiny Iranian spaceship will rise above the limb of Moshtari, and then it will be time to talk to the teacher. She isn't looking forward to the experience. If he's a grizzled old blockhead of the most obdurate fundamentalist streak, she'll be in trouble: Disrespect for age has been part and parcel of the Western teenage experience for generations, and a cross-cultural thread that she's detailed to clue up on Islam reminds her that not all cultures share this outlook. But if he turns out to be young, intelligent, and flexible, things could be even worse. When she was eight, Amber audited The Taming of the Shrew. She finds she has no appetite for a starring role in her own cross-cultural production. + +She sighs again. "Pierre?" + +"Yeah?" His voice comes from the foot of the emergency locker in her room. He's curled up down there, limbs twitching languidly as he drives a mining drone around the surface of Object Barney, as the rock has named itself. The drone is a long-legged crane fly look-alike, bouncing very slowly from toe tip to toe tip in the microgravity. The rock is only half a kilometer along its longest axis, coated brown with weird hydrocarbon goop and sulphur compounds sprayed off the surface of Io by the Jovian winds. "I'm coming." + +"You better." She glances at the screen. "One twenty seconds to next burn." The payload canister on the screen is, technically speaking, stolen. It'll be okay as long as she gives it back, Bob said, although she won't be able to do that until it's reached Barney and they've found enough water ice to refuel it. "Found anything yet?" + +"Just the usual. Got a seam of ice near the semimajor pole - it's dirty, but there's at least a thousand tons there. And the surface is crunchy with tar. Amber, you know what? The orange shit, it's solid with fullerenes." + +Amber grins at her reflection in the screen. That's good news. Once the payload she's steering touches down, Pierre can help her lay superconducting wires along Barney's long axis. It's only a kilometer and a half, and that'll only give them a few tens of kilowatts of juice, but the condensation fabricator that's also in the payload can will be able to use it to convert Barney's crust into processed goods at about two grams per second. Using designs copylefted by the free hardware foundation, inside two hundred thousand seconds they'll have a grid of sixty-four 3D printers barfing up structured matter at a rate limited only by available power. Starting with a honking great dome tent and some free nitrogen/oxygen for her to breathe, then adding a big web cache and direct high-bandwidth uplink to Earth, Amber could have her very own one-girl colony up and running within a million seconds. + +The screen blinks at her. "Oh shit! Make yourself scarce, Pierre?" The incoming call nags at her attention. "Yeah? Who are you?" + +The screen fills with a view of a cramped, very twen-cen-looking space capsule. The guy inside it is in his twenties, with a heavily tanned face, close-cropped hair and beard, wearing an olive drab space suit liner. He's floating between a TORU manual docking controller and a gilt-framed photograph of the Ka'bah at Mecca. "Good evening to you," he says solemnly. "Do I have the honor to be addressing Amber Macx?" + +"Uh, yeah? That's me." She stares at him: He looks nothing like her conception of an ayatollah - whatever an ayatollah is - elderly, black-robed, vindictively fundamentalist. "Who are you?" + +"I am Dr. Sadeq Khurasani. I hope that I am not interrupting you? Is it convenient for you that we talk now?" + +He looks so anxious that Amber nods automatically. "Sure. Did my Mom put you up to this?" They're still speaking English, and she notices that his diction is good, but slightly stilted. He isn't using a grammar engine, he actually learned the language the hard way, she realizes, feeling a frisson of fear. "You want to be careful how you talk to her. She doesn't lie, exactly, but she gets people to do what she wants." + +"Yes, I spoke to - ah." A pause. They're still almost a light-second apart, time for painful collisions and accidental silences. "I see. Are you sure you should be speaking of your mother that way?" + +Amber breathes deeply. "Adults can get divorced. If I could get divorced from her, I would. She's -" She flails around for the right word helplessly. "Look, she's the sort of person who can't lose a fight. If she's going to lose, she'll try to figure how to set the law on you. Like she's done to me. Don't you see?" + +Dr. Khurasani looks extremely dubious. "I am not sure I understand," He says. "Perhaps, mmm, I should tell you why I am talking to you?" + +"Sure. Go ahead." Amber is startled by his attitude: He actually seems to be taking her seriously, she realizes. Treating her like an adult. The sensation is so novel - coming from someone more than twenty years old - that she almost lets herself forget that he's only talking to her because Mom set her up. + +"Well, I am an engineer. In addition, I am a student of fiqh, jurisprudence. In fact, I am qualified to sit in judgment. I am a very junior judge, but even so, it is a heavy responsibility. Anyway, your mother, peace be unto her, lodged a petition with me. Are you aware of it?" + +"Yes." Amber tenses up. "It's a lie. Distortion of the facts." + +"Hmm." Sadeq rubs his beard thoughtfully. "Well, I have to find out, yes? Your mother has submitted herself to the will of God. This makes you the child of a Moslem, and she claims -" + +"She's trying to use you as a weapon!" Amber interrupts. "I sold myself into slavery to get away from her, do you understand? I enslaved myself to a company that is held in trust for my ownership. She's trying to change the rules to get me back. You know what? I don't believe she gives a shit about your religion, all she wants is me!" + +"A mother's love -" + +"Fuck love," Amber snarls, "she wants power." + +Sadeq's expression hardens. "You have a foul mouth in your head, child. All I am trying to do is to find out the facts of this situation. You should ask yourself if such disrespect furthers your interests?" He pauses for a moment, then continues, less abruptly. "Did you really have such a bad childhood with her? Do you think she did everything merely for power, or could she love you?" Pause. "You must understand, I need to learn these things. Before I can know what is the right thing to do." + +"My mother -" Amber stops dead and spawns a vaporous cloud of memory retrievals. They fan out through the space around her mind like the tail of her cometary mind. Invoking a complex of network parsers and class filters, she turns the memories into reified images and blats them at the webcam's tiny brain so he can see them. Some of the memories are so painful that Amber has to close her eyes. Mom in full office war paint, leaning over Amber, promising to disable her lexical enhancements forcibly if she doesn't work on her grammar without them. Mom telling Amber that they're moving again, abruptly, dragging her away from school and the friends she'd tentatively started to like. The church-of-the-month business. Mom catching her on the phone to Daddy, tearing the phone in half and hitting her with it. Mom at the kitchen table, forcing her to eat - "My mother likes control." + +"Ah." Sadeq's expression turns glassy. "And this is how you feel about her? How long have you had that level of - no, please forgive me for asking. You obviously understand implants. Do your grandparents know? Did you talk to them?" + +"My grandparents?" Amber stifles a snort. "Mom's parents are dead. Dad's are still alive, but they won't talk to him - they like Mom. They think I'm creepy. I know little things, their tax bands and customer profiles. I could mine data with my head when I was four. I'm not built like little girls were in their day, and they don't understand. You know the old ones don't like us at all? Some of the churches make money doing nothing but exorcisms for oldsters who think their kids are possessed." + +"Well." Sadeq is fingering his beard again, distractedly. "I must say, this is a lot to learn. But you know your mother has accepted Islam, don't you? This means that you are Moslem, too. Unless you are an adult, your parent legally speaks for you. And she says this makes you my problem. Hmm." + +"I'm not a Muslim." Amber stares at the screen. "I'm not a child, either." Her threads are coming together, whispering scarily behind her eyes: Her head is suddenly dense and turgid with ideas, heavy as a stone and twice as old as time. "I am nobody's chattel. What does your law say about people who are born with implants? What does it say about people who want to live forever? I don't believe in any god, Mr. Judge. I don't believe in limits. Mom can't, physically, make me do anything, and she sure can't speak for me. All she can do is challenge my legal status, and if I choose to stay where she can't touch me, what does that matter?" + +"Well, if that is what you have to say, I must think on the matter." He catches her eye; his expression is thoughtful, like a doctor considering a diagnosis. "I will call you again in due course. In the meantime, if you need to talk to anyone, remember that I am always available. If there is anything I can do to help ease your pain, I would be pleased to be of service. Peace be unto you, and those you care for." + +"Same to you, too," she mutters darkly, as the connection goes dead. "Now what?" she asks, as a beeping sprite gyrates across the wall, begging for attention. + +"I think it's the lander," Pierre says helpfully. "Is it down yet?" + +She rounds on him: "Hey, I thought I told you to get lost!" + +"What, and miss all the fun?" He grins at her impishly. "Amber's got a new boyfriend! Wait until I tell everybody ..." + +* * * + +_1 Sleep cycles pass; the borrowed 3D printer on Object Barney's surface spews bitmaps of atoms in quantum lockstep at its rendering platform, building up the control circuitry and skeletons of new printers (There are no clunky nanoassemblers here, no robots the size of viruses busily sorting molecules into piles - just the bizarre quantized magic of atomic holography, modulated Bose-Einstein condensates collapsing into strange, lacy, supercold machinery.) Electricity surges through the cable loops as they slice through Jupiter's magnetosphere, slowly converting the rock's momentum into power. Small robots grovel in the orange dirt, scooping up raw material to feed to the fractionating oven. Amber's garden of machinery flourishes slowly, unpacking itself according to a schema designed by preteens at an industrial school in Poland, with barely any need for human guidance. + +_1 High in orbit around Amalthea, complex financial instruments breed and conjugate. Developed for the express purpose of facilitating trade with the alien intelligences believed to have been detected eight years earlier by SETI, they function equally well as fiscal gatekeepers for space colonies. The Sanger's bank accounts in California and Cuba are looking acceptable - since entering Jupiter space, the orphanage has staked a claim on roughly a hundred gigatons of random rocks and a moon that's just small enough to creep in under the International Astronomical Union's definition of a sovereign planetary body. The borg are working hard, leading their eager teams of child stakeholders in their plans to build the industrial metastructures necessary to support mining helium-three from Jupiter. They're so focused that they spend much of their time being themselves, not bothering to run Bob, the shared identity that gives them their messianic drive. + +_1 Half a light-hour away, tired Earth wakes and slumbers in time to its ancient orbital dynamics. A religious college in Cairo is considering issues of nanotechnology: If replicators are used to prepare a copy of a strip of bacon, right down to the molecular level, but without it ever being part of a pig, how is it to be treated? (If the mind of one of the faithful is copied into a computing machine's memory by mapping and simulating all its synapses, is the computer now a Moslem? If not, why not? If so, what are its rights and duties?) Riots in Borneo underline the urgency of this theotechnological inquiry. + +_1 More riots in Barcelona, Madrid, Birmingham, and Marseilles also underline a rising problem: the social chaos caused by cheap anti-aging treatments. The zombie exterminators, a backlash of disaffected youth against the formerly graying gerontocracy of Europe, insist that people who predate the supergrid and can't handle implants aren't really conscious: Their ferocity is equaled only by the anger of the dynamic septuagenarians of the baby boom, their bodies partially restored to the flush of sixties youth, but their minds adrift in a slower, less contingent century. The faux-young boomers feel betrayed, forced back into the labor pool, but unable to cope with the implant-accelerated culture of the new millennium, their hard-earned experience rendered obsolete by deflationary time. + +_1 The Bangladeshi economic miracle is typical of the age. With growth rates running at over twenty percent, cheap out-of-control bioindustrialization has swept the nation: Former rice farmers harvest plastics and milk cows for silk, while their children study mariculture and design seawalls. With cellphone ownership nearing eighty percent and literacy at ninety, the once-poor country is finally breaking out of its historical infrastructure trap and beginning to develop: In another generation, they'll be richer than Japan. + +_1 Radical new economic theories are focusing around bandwidth, speed-of-light transmission time, and the implications of CETI, communication with extraterrestrial intelligence. Cosmologists and quants collaborate on bizarre relativistically telescoped financial instruments. Space (which lets you store information) and structure (which lets you process it) acquire value while dumb mass - like gold - loses it. The degenerate cores of the traditional stock markets are in free fall, the old smokestack microprocessor and biotech/nanotech industries crumbling before the onslaught of matter replicators and self-modifying ideas. The inheritors look set to be a new wave of barbarian communicators, who mortgage their future for a millennium against the chance of a gift from a visiting alien intelligence. Microsoft, once the US Steel of the silicon age, quietly fades into liquidation. + +_1 An outbreak of green goo - a crude biomechanical replicator that eats everything in its path - is dealt with in the Australian outback by carpet-bombing with fuel-air explosives. The USAF subsequently reactivates two wings of refurbished B-52s and places them at the disposal of the UN standing committee on self-replicating weapons. (CNN discovers that one of their newest pilots, re-enlisting with the body of a twenty-year-old and an empty pension account, first flew them over Laos and Cambodia.) The news overshadows the World Health Organization's announcement of the end of the HIV pandemic, after more than fifty years of bigotry, panic, and megadeath. + +* * * + +"Breathe steadily. Remember your regulator drill? If you spot your heart rate going up or your mouth going dry, take five." + +"Shut the fuck up, 'Neko, I'm trying to concentrate." Amber fumbles with the titanium D-ring, trying to snake the strap through it. The gauntlets are getting in her way. High orbit space suits - little more than a body stocking designed to hold your skin under compression and help you breathe - are easy, but this deep in Jupiter's radiation belt she has to wear an old Orlan-DM suit that comes in about thirteen layers. The gloves are stiff and hard to work in. It's Chernobyl weather outside, a sleet of alpha particles and raw protons storming through the void, and she really needs the extra protection. "Got it." She yanks the strap tight, pulls on the D-ring, then goes to work on the next strap. Never looking down; because the wall she's tying herself to has no floor, just a cutoff two meters below, then empty space for a hundred kilometers before the nearest solid ground. + +The ground sings to her moronically: "I love you, you love me, it's the law of gravity -" + +She shoves her feet down onto the platform that juts from the side of the capsule like a suicide's ledge: metallized Velcro grabs hold, and she pulls on the straps to turn her body round until she can see past the capsule, sideways. The capsule masses about five tonnes, barely bigger than an ancient Soyuz. It's packed to overflowing with environment-sensitive stuff she'll need, and a honking great high-gain antenna. "I hope you know what you're doing," someone says over the intercom. + +"Of course I -" She stops. Alone in this Energiya NPO surplus iron maiden with its low-bandwidth coms and bizarre plumbing, she feels claustrophobic and helpless: Parts of her mind don't work. When she was four, Mom took her down a famous cave system somewhere out west. When the guide turned out the lights half a kilometer underground, she'd screamed with surprise as the darkness had reached out and touched her. Now it's not the darkness that frightens her, it's the lack of thought. For a hundred kilometers below her there are no minds, and even on the surface there's only the moronic warbling of 'bots for company. Everything that makes the universe primate-friendly seems to be locked in the huge spaceship that looms somewhere just behind the back of her head, and she has to fight down an urge to shed her straps and swarm back up the umbilical that anchors the capsule to the Sanger. "I'll be fine," she forces herself to say. And even though she's unsure that it's true, she tries to make herself believe it. "It's just leaving-home nerves. I've read about it, okay?" + +There's a funny, high-pitched whistle in her ears. For a moment, the sweat on the back of her neck turns icy cold, then the noise stops. She strains for a moment, and when it returns she recognizes the sound: The hitherto-talkative cat, curled in the warmth of her pressurized luggage can, has begun to snore. + +"Let's go," she says, "Time to roll the wagon." A speech macro deep in the Sanger's docking firmware recognizes her authority and gently lets go of the pod. A couple of cold gas clusters pop, sending deep banging vibrations running through the capsule, and she's on her way. + +"Amber. How's it hanging?" A familiar voice in her ears: She blinks. Fifteen hundred seconds, nearly half an hour gone. + +"Robes-Pierre, chopped any aristos lately?" + +"Heh!" A pause. "I can see your head from here." + +"How's it looking?" she asks. There's a lump in her throat; she isn't sure why. Pierre is probably hooked into one of the smaller proximity cameras dotted around the outer hull of the big mother ship, watching over her as she falls. + +"Pretty much like always," he says laconically. Another pause, this time longer. "This is wild, you know? Su Ang says hi, by the way." + +"Su Ang, hi," she replies, resisting the urge to lean back and look up - up relative to her feet, not her vector - and see if the ship's still visible. + +"Hi," Ang says shyly. "You're very brave?" + +"Still can't beat you at chess." Amber frowns. Su Ang and her overengineered algae. Oscar and his pharmaceutical factory toads. People she's known for three years, mostly ignored, and never thought about missing. "Listen, are you going to come visiting?" + +"You want us to visit?" Ang sounds dubious. "When will it be ready?" + +"Oh, soon enough." At four kilograms per minute of structured-matter output, the printers on the surface have already built her a bunch of stuff: a habitat dome, the guts of an algae/shrimp farm, an excavator to bury it with, an airlock. Even a honey bucket. It's all lying around waiting for her to put it together and move into her new home. "Once the borg get back from Amalthea." + +"Hey! You mean they're moving? How did you figure that?" + +"Go talk to them," Amber says. Actually, she's a large part of the reason the Sanger is about to crank its orbit up and out toward the other moon: She wants to be alone in coms silence for a couple of million seconds. The Franklin collective is doing her a big favor. + +"Ahead of the curve, as usual," Pierre cuts in, with something that sounds like admiration to her uncertain ears. + +"You too," she says, a little too fast: "Come visit when I've got the life-support cycle stabilized." + +"I'll do that," he replies. A red glow suffuses the flank of the capsule next to her head, and she looks up in time to see the glaring blue laser line of the Sanger's drive torch powering up. + +* * * + +Eighteen million seconds, almost a tenth of a Jupiter year, passes. + +The imam tugs thoughtfully on his beard as he stares at the traffic control display. These days, every shift seems to bring a new crewed spaceship into Jupiter system: Space is getting positively crowded. When he arrived, there were fewer than two hundred people here. Now there's the population of a small city, and many of them live at the heart of the approach map centered on his display. He breathes deeply - trying to ignore the omnipresent odor of old socks - and studies the map. "Computer, what about my slot?" he asks. + +"Your slot: Cleared to commence final approach in six-nine-five seconds. Speed limit is ten meters per second inside ten kilometers, drop to two meters per second inside one kilometer. Uploading map of forbidden thrust vectors now." Chunks of the approach map turn red, gridded off to prevent his exhaust stream damaging other craft in the area. + +Sadeq sighs. "We'll go in using Kurs. I assume their Kurs guidance is active?" + +"Kurs docking target support available to shell level three." + +"Praise Allah." He pokes around through the guidance subsystem's menus, setting up the software emulation of the obsolete (but highly reliable) Soyuz docking system. At last he can leave the ship to look after itself for a bit. He glances round. For two years he has lived in this canister, and soon he will step outside it. It hardly seems real. + +The radio, usually silent, crackles with unexpected life. "Bravo One One, this is Imperial Traffic Control. Verbal contact required, over." + +Sadeq twitches with surprise. The voice sounds inhuman, paced with the cadences of a speech synthesizer, like so many of Her Majesty's subjects. "Bravo One One to Traffic Control, I'm listening, over." + +"Bravo One One, we have assigned you a landing slot on tunnel four, airlock delta. Kurs active, ensure your guidance is set to seven-four-zero and slaved to our control." + +He leans over the screen and rapidly checks the docking system's settings. "Control, all in order." + +"Bravo One One, stand by." + +The next hour passes slowly as the traffic control system guides his Type 921 down to a rocky rendezvous. Orange dust streaks his one optical-glass porthole: A kilometer before touchdown, Sadeq busies himself closing protective covers, locking down anything that might fall around on contact. Finally, he unrolls his mat against the floor in front of the console and floats above it for ten minutes, eyes closed in prayer. It's not the landing that worries him, but what comes next. + +Her Majesty's domain stretches out before the battered module like a rust-stained snowflake half a kilometer in diameter. Its core is buried in a loose snowball of grayish rubble, and it waves languid brittlestar arms at the gibbous orange horizon of Jupiter. Fine hairs, fractally branching down to the molecular level, split off the main collector arms at regular intervals. A cluster of habitat pods like seedless grapes cling to the roots of the massive structure. Already he can see the huge steel generator loops that climb from either pole of the snowflake, wreathed in sparking plasma; the Jovian rings form a rainbow of darkness rising behind them. + +At last, the battered space station is on final approach. Sadeq watches the Kurs simulation output carefully, piping it directly into his visual field. There's an external camera view of the rockpile and grapes. As the view expands toward the convex ceiling of the ship, he licks his lips, ready to hit the manual override and go around again - but the rate of descent is slowing, and by the time he's close enough to see the scratches on the shiny metal docking cone ahead of the ship, it's measured in centimeters per second. There's a gentle bump, then a shudder, then a rippling bang as the latches on the docking ring fire - and he's down. + +Sadeq breathes deeply again, then tries to stand. There's gravity here, but not much: Walking is impossible. He's about to head for the life-support panel when he freezes, hearing a noise from the far end of the docking node. Turning, he's just in time to see the hatch opening toward him, a puff of vapor condensing, and then - + +* * * + +Her Imperial Majesty is sitting in the throne room, moodily fidgeting with the new signet ring her equerry has designed for her. It's a lump of structured carbon massing almost fifty grams, set in a plain band of asteroid-mined iridium. It glitters with the blue-and-violet speckle highlights of its internal lasers, because, in addition to being a piece of state jewelry, it is also an optical router, part of the industrial control infrastructure she's building out here on the edge of the solar system. Her Majesty wears plain black combat pants and sweatshirt, woven from the finest spider silk and spun glass, but her feet are bare: Her taste in fashion is best described as youthful, and in any event, certain styles are simply impractical in microgravity. But, being a monarch, she's wearing a crown. And there's a cat, or an artificial entity that dreams it's a cat, sleeping on the back of her throne. + +The lady-in-waiting (and sometime hydroponic engineer) ushers Sadeq to the doorway, then floats back. "If you need anything, please say," she says shyly, then ducks and rolls away. Sadeq approaches the throne, orients himself on the floor (a simple slab of black composite, save for the throne growing from its center like an exotic flower), and waits to be noticed. + +"Dr. Khurasani, I presume." She smiles at him, neither the innocent grin of a child nor the knowing smirk of an adult: merely a warm greeting. "Welcome to my kingdom. Please feel free to make use of any necessary support services here, and I wish you a very pleasant stay." + +Sadeq holds his expression still. The queen is young - her face still retains the puppy fat of childhood, emphasized by microgravity moon-face - but it would be a bad mistake to consider her immature. "I am grateful for Your Majesty's forbearance," he murmurs, formulaic. Behind her the walls glitter like diamonds, a glowing kaleidoscope vision. It's already the biggest offshore - or off-planet - data haven in human space. Her crown, more like a compact helm that covers the top and rear of her head, also glitters and throws off diffraction rainbows; but most of its emissions are in the near ultraviolet, invisible except for the faint glowing nimbus it creates around her head. Like a halo. + +"Have a seat," she offers, gesturing: A ballooning free-fall cradle squirts down and expands from the ceiling, angled toward her, open and waiting. "You must be tired. Working a ship all by yourself is exhausting." She frowns ruefully, as if remembering. "Two years is nearly unprecedented." + +"Your Majesty is too kind." Sadeq wraps the cradle arms around himself and faces her. "Your labors have been fruitful, I trust." + +She shrugs. "I sell the biggest commodity in short supply on any frontier ..." A momentary grin. "This isn't the Wild West, is it?" + +"Justice cannot be sold," Sadeq says stiffly. Then, a moment later: "My apologies, I mean no insult. I merely believe that, while you say your goal is to provide the rule of law, what you sell is and must be something different. Justice without God, sold to the highest bidder, is not justice." + +The queen nods. "Leaving aside the mention of God, I agree - I can't sell it. But I can sell participation in a just system. And this new frontier really is a lot smaller than anyone expected, isn't it? Our bodies may take months to travel between worlds, but our disputes and arguments take seconds or minutes. As long as everybody agrees to abide by my arbitration, physical enforcement can wait until they're close enough to touch. And everybody does agree that my legal framework is easier to comply with, better adjusted to trans-Jovian space, than any earthbound one." A note of steel creeps into her voice, challenging: Her halo brightens, tickling a reactive glow from the walls of the throne room. + +Five billion inputs or more, Sadeq marvels. The crown is an engineering marvel, even though most of its mass is buried in the walls and floor of this huge construct. "There is law revealed by the Prophet, peace be unto him, and there is law that we can establish by analysing his intentions. There are other forms of law by which humans live, and various interpretations of the law of God even among those who study His works. How, in the absence of the word of the Prophet, can you provide a moral compass?" + +"Hmm." She taps her fingers on the arm of her throne, and Sadeq's heart freezes. He's heard the stories from the claim jumpers and boardroom bandits, from the greenmail experts with their roots in the earthbound jurisdictions that have made such a hash of arbitration here. How she can experience a year in a minute, rip your memories out through your cortical implants, and make you relive your worst mistakes in her nightmarishly powerful simulation space. She is the queen - the first individual to get her hands on so much mass and energy that she could pull ahead of the curve of binding technology, and the first to set up her own jurisdiction and rule certain experiments to be legal so that she could make use of the mass/energy intersection. She has force majeure - even the Pentagon's infowarriors respect the Ring Imperium's autonomy for now. In fact, the body sitting in the throne opposite him probably contains only a fraction of her identity. She's by no means the first upload or partial, but she's the first gust front of the storm of power that will arrive when the arrogant ones achieve their goal of dismantling the planets and turning dumb and uninhabited mass into brainpower throughout the observable reaches of the universe. And he's just questioned the rectitude of her vision, in her presence. + +The queen's lips twitch. Then they curl into a wide, carnivorous grin. Behind her, the cat sits up and stretches, then stares at Sadeq through narrowed eyes. + +"You know, that's the first time in weeks that anyone has told me I'm full of shit. You haven't been talking to my mother again, have you?" + +It's Sadeq's turn to shrug, uncomfortably. "I have prepared a judgment," he says slowly. + +"Ah." Amber rotates the huge diamond ring around her finger. Then she looks him in the eye, a trifle nervously. Although what he could possibly do to make her comply with any decree - + +"To summarize: Her motive is polluted," Sadeq says shortly. + +"Does that mean what I think it does?" she asks. + +Sadeq breathes deeply again: "Yes, I think so." + +Her smile returns. "And is that the end of it?" she asks. + +He raises a dark eyebrow: "Only if you can prove to me that you can have a conscience in the absence of divine revelation." + +Her reaction catches him by surprise. "Oh, sure. That's the next part of the program. Obtaining divine revelations." + +"What! From the alien?" + +The cat, claws extended, delicately picks its way down to her lap and waits to be held and stroked. It never once takes its eyes off him. "Where else?" she asks. "Doctor, I didn't get the Franklin Trust to loan me the wherewithal to build this castle just in return for some legal paperwork, and some, ah, interesting legal waivers from Brussels. We've known for years there's a whole alien packet-switching network out there, and we're just getting spillover from some of their routers. It turns out there's a node not far away from here, in real space. Helium-three, separate jurisdictions, heavy industrialization on Io - there is a purpose to all this activity." + +Sadeq licks his suddenly dry lips. "You're going to narrowcast a reply?" + +"No, much better than that: we're going to visit them. Cut the delay cycle down to real-time. We came here to build a ship and recruit a crew, even if we have to cannibalize the whole of Jupiter system to pay for the exercise." + +The cat yawns then fixes him with a thousand-yard stare. "This stupid girl wants to bring her conscience along to a meeting with something so smart it might as well be a god," it says. "And she needs to convince the peanut gallery back home that she's got one, being a born-again atheist and all. Which means, you're it, monkey boy. There's a slot open for the post of ship's theologian on the first starship out of Jupiter system. I don't suppose I can convince you to turn the offer down?" + +Chapter 5: Router + +Some years later, two men and a cat are tying one on in a bar that doesn't exist. + +The air in the bar is filled with a billowing relativistic smoke cloud - it's a stellarium, accurately depicting the view beyond the imaginary walls. Aberration of starlight skews the color toward violet around the doorway, brightening in a rainbow mist over the tables, then dimming to a hazy red glow in front of the raised platform at the back. The Doppler effect has slowly emerged over the past few months as the ship gathers momentum. In the absence of visible stellar motion - or a hard link to the ship's control module - it's the easiest way for a drunken passenger to get a feeling for how frighteningly fast the /{Field Circus}/ is moving. Some time ago, the ship's momentum exceeded half its rest mass, at which point a single kilogram packs the punch of a multimegaton hydrogen bomb. + +A ginger-and-brown cat - who has chosen to be female, just to mess with the heads of those people who think all ginger cats are male - sprawls indolently across the wooden floorboards in front of the bar, directly beneath the bridge of the starbow. Predictably, it has captured the only ray of sunlight to be had within the starship. In the shadows at the back of the bar, two men slump at a table, lost in their respective morose thoughts: One nurses a bottle of Czech beer, the other a half-empty cocktail glass. + +"It wouldn't be so bad if she is giving me some sign," says one of them, tilting his beer bottle to inspect the bottom for sediment. "No; that not right. It's the correct kind of attention. Am not knowing where I stand with her." + +The other one leans back in his chair, squints at the faded brown paint of the ceiling. "Take it from one who knows," he says: "If you knew, you'd have nothing to dream about. Anyway, what she wants and what you want may not be the same thing." + +The first man runs a hand through his hair. Tight-curled black ringlets briefly turn silver beneath his aging touch. "Pierre, if talent for making patronizing statements is what you get from tupping Amber -" + +Pierre glares at him with all the venom an augmented nineteen-year-old can muster. "Be glad she has no ears in here," he hisses. His hand tightens around his glass reflexively, but the physics model in force in the bar refuses to let him break it. "You've had too fucking much to drink, Boris." + +A tinkle of icy laughter comes from the direction of the cat. "Shut up, you," says Boris, glancing at the animal. He tips the bottle back, lets the dregs trickle down his throat. "Maybe you're right. Am sorry. Do not mean to be rude about the queen." He shrugs, puts the bottle down. Shrugs again, heavily. "Am just getting depressed." + +"You're good at that," Pierre observes. + +Boris sighs again. "Evidently. If our positions are reversed -" + +"I know, I know, you'd be telling me the fun is in the chase and it's not the same when she kicks you out after a fight, and I wouldn't believe a word of it, being sad and single and all that." Pierre snorts. "Life isn't fair, Boris - live with it." + +"I'd better go - " Boris stands. + +"Stay away from Ang," says Pierre, still annoyed with him. "At least until you're sober." + +"Okay already, stay cool; Am consciously running a watchdog thread." Boris blinks irritably. "Enforcing social behavior. It doesn't normally allow this drunk. Not where reputation damage are possible in public." + +He does a slow dissolve into thin air, leaving Pierre alone in the bar with the cat. + +"How much longer do we have to put up with this shit?" he asks aloud. Tempers are frayed, and arguments proliferate indefinitely in the pocket universe of the ship. + +The cat doesn't look round. "In our current reference frame, we drop the primary reflector and start decelerating in another two million seconds," she says. "Back home, five or six megaseconds." + +"That's a big gap. What's the cultural delta up to now?" Pierre asks idly. He snaps his fingers: "Waiter, another cocktail. The same, if you please." + +"Oh, probably about ten to twenty times our departure reference," says the cat. "If you'd been following the news from back home, you'd have noted a significant speed-up in the deployment of switched entanglement routers. They're having another networking revolution, only this one will run to completion inside a month because they're using dark fiber that's already in the ground." + +"Switched ... entanglement?" Pierre shakes his head, bemused. The waiter, a faceless body in black tie and a long, starched apron, walks around the bar and offers him a glass. "That almost sounds as if it makes sense. What else?" + +The cat rolls over on her flank, stretches, claws extended. "Stroke me, and I might tell you," she suggests. + +"Fuck you, and the dog you rode in on," Pierre replies. He lifts his glass, removes a glacé cherry on a cocktail stick, throws it toward the spiral staircase that leads down to the toilets, and chugs back half of the drink in one go - freezing pink slush with an afterbite of caramelized hexose sugars and ethanol. The near spillage as he thumps the glass down serves to demonstrate that he's teetering on the edge of drunkenness. "Mercenary!" + +"Lovesick drug-using human," the cat replies without rancor, and rolls to her feet. She arches her back and yawns, baring ivory fangs at the world. "You apes - if I cared about you, I'd have to kick sand over you." For a moment she looks faintly confused. "I mean, I would bury you." She stretches again and glances round the otherwise-empty bar. "By the way, when are you going to apologize to Amber?" + +"I'm not going to fucking apologize to her!" Pierre shouts. In the ensuing silence and confusion, he raises his glass and tries to drain it, but the ice has all sunk to the bottom, and the resulting coughing fit makes him spray half of the cocktail across the table. "No way," he rasps quietly. + +"Too much pride, huh?" The cat stalks toward the edge of the bar, tail held high with tip bent over in a feline question mark. "Like Boris with his adolescent woman trouble, too? You primates are so predictable. Whoever thought of sending a starship crewed by posthuman adolescents -" + +"Go 'way," says Pierre: "I've got serious drinking to do." + +"To the Macx, I suppose," puns the cat, turning away. But the moody youth has no answer for her, other than to conjure a refill from the vasty deeps. + +* * * + +Meanwhile, in another partition of the /{Field Circus}/'s reticulated reality, a different instance of the selfsame cat - Aineko by name, sarcastic by disposition - is talking to its former owner's daughter, the Queen of the Ring Imperium. Amber's avatar looks about sixteen, with disheveled blonde hair and enhanced cheekbones. It's a lie, of course, because in subjective life experience, she's in her mid-twenties, but apparent age signifies little in a simulation space populated by upload minds, or in real space, where post-humans age at different rates. + +Amber wears a tattered black dress over iridescent purple leggings, and sprawls lazily across the arms of her informal throne - an ostentatious lump of nonsense manufactured from a single carbon crystal doped with semiconductors. (Unlike the real thing back home in Jupiter orbit, this one is merely a piece of furniture for a virtual environment.) The scene is very much the morning after the evening before, like a goth nightclub gone to seed: all stale smoke and crumpled velvet, wooden church pews, burned-out candles, and gloomy Polish avant-garde paintings. Any hint of a regal statement the queen might be making is spoiled by the way she's hooked one knee over the left arm of the throne and is fiddling with a six-axis pointing device. But these are her private quarters, and she's off duty: The regal person of the Queen is strictly for formal, corporate occasions. + +"Colorless green ideas sleep furiously," she suggests. + +"Nope," replies the cat. "It was more like: 'Greetings, earthlings, compile me on your leader.'" + +"Well, you got me there," Amber admits. She taps her heel on the throne and fidgets with her signet ring. "No damn way I'm loading some buggy alien wetware on my sweet gray stuff. /{Weird}/ semiotics, too. What does Dr. Khurasani say?" + +Aineko sits down in the middle of the crimson carpet at the foot of the dais and idly twists round to sniff her crotch. "Sadeq is immersed in scriptural interpretations. He refused to be drawn." + +"Huh." Amber stares at the cat. "So. You've been carrying this lump of source code since when ...?" + +"At the signal, for precisely two hundred and sixteen million, four hundred and twenty-nine thousand, and fifty-two seconds," Aineko supplies, then beeps smugly. "Call it just under six years." + +"Right." Amber squeezes her eyes shut. Uneasy possibilities whisper in her mind's ears. "And it began talking to you -" + +"- About three million seconds after I picked it up and ran it on a basic environment hosted on a neural network emulator modeled on the components found in the stomatogastric ganglion of a spiny lobster. Clear?" + +Amber sighs. "I wish you'd told Dad about it. Or Annette. Things could have been so different!" + +"How?" The cat stops licking her arse and looks up at the queen with a peculiarly opaque stare. "It took the specialists a decade to figure out the first message was a map of the pulsar neighborhood with directions to the nearest router on the interstellar network. Knowing how to plug into the router wouldn't help while it was three light-years away, would it? Besides, it was fun watching the idiots trying to 'crack the alien code' without ever wondering if it might be a reply in a language we already know to a message we sent out years ago. Fuckwits. And, too, Manfred pissed me off once too often. He kept treating me like a goddamn house pet." + +"But you -" Amber bites her lip. /{But you}/ were, /{when he bought you}/, she had been about to say. Engineered consciousness is still relatively new: It didn't exist when Manfred and Pamela first hacked on Aineko's cognitive network, and according to the flat-earth wing of the AI community, it still doesn't. Even she hadn't really believed Aineko's claims to self-awareness until a couple of years ago, finding it easier to think of the cat as a zimboe - a zombie with no self-awareness, but programmed to claim to be aware in an attempt to deceive the truly conscious beings around it. "I know you're conscious now, but Manfred didn't know back then. Did he?" + +Aineko glares at her, then slowly narrows her eyes to slits - either feline affection, or a more subtle gesture. Sometimes Amber finds it hard to believe that, twenty five years ago, Aineko started out as a crude neural network driven toy from a Far Eastern amusement factory - upgradeable, but still basically a mechanical animal emulator. + +"I'm sorry. Let me start again. You actually figured out what the second alien packet was, you, yourself, and nobody else. Despite the combined efforts of the entire CETI analysis team who spent Gaia knows how many human-equivalent years of processing power trying to crack its semantics. I hope you'll pardon me for saying I find that hard to believe?" + +The cat yawns. "I could have told Pierre instead." Aineko glances at Amber, sees her thunderous expression, and hastily changes the subject: "The solution was intuitively obvious, just not to humans. You're so /{verbal}/." Lifting a hind paw, she scratches behind her left ear for a moment then pauses, foot waving absentmindedly. "Besides, the CETI team was searching under the street lights while I was sniffing around in the grass. They kept trying to find primes; when that didn't work, they started trying to breed a Turing machine that would run it without immediately halting." Aineko lowers her paw daintily. "None of them tried treating it as a map of a connectionist system based on the only terrestrial components anyone had ever beamed out into deep space. Except me. But then, your mother had a hand in my wetware, too." + +"Treating it as a map -" Amber stops. "You were meant to penetrate Dad's corporate network?" + +"That's right," says the cat. "I was supposed to fork repeatedly and gang-rape his web of trust. But I didn't." Aineko yawns. "Pam pissed me off, too. I don't like people who try to use me." + +"I don't care. Taking that thing on board was still a really stupid risk you took," Amber accuses. + +"So?" The cat looks at her insolently. "I kept it in my sandbox. And I got it working, on the seven hundred and forty-first attempt. It'd have worked for Pamela's bounty-hunter friends, too, if I'd tried it. But it's here, now, when you need it. Would you like to swallow the packet?" + +Amber straightens out, sits up in her throne: "I just told you, if you think I'm going to link some flaky chunk of alien neural programming into my core dialogue, or even my exocortex, you're crazy!" Her eyes narrow. "Can it use your grammar model?" + +"Sure." If the cat was human, it would be shrugging nonchalantly at this point. "It's safe, Amber, really and truly. I found out what it is." + +"I want to talk to it," she says impetuously - and before the cat can reply, adds, "So what is it?" + +"It's a protocol stack. Basically it allows new nodes to connect to a network, by providing high-level protocol conversion services. It needs to learn how to think like a human so it can translate for us when we arrive at the router, which is why they bolted a lobster's neural network on top of it - they wanted to make it architecturally compatible with us. But there are no buried time bombs, I assure you: I've had plenty of time to check. Now, are you /{sure}/ you don't want to let it into your head?" + +* * * + +_1 Greetings from the fifth decade of the century of wonders. + +_1 The solar system that lies roughly twenty-eight trillion kilometers - just short of three light-years - behind the speeding starwisp /{Field Circus}/ is seething with change. There have been more technological advances in the past ten years than in the entire previous expanse of human history - and more unforeseen accidents. + +_1 Lots of hard problems have proven to be tractable. The planetary genome and proteome have been mapped so exhaustively that the biosciences are now focusing on the challenge of the phenome: Plotting the phase-space defined by the intersection of genes and biochemical structures, understanding how extended phenotypic traits are generated and contribute to evolutionary fitness. The biosphere has become surreal: small dragons have been sighted nesting in the Scottish highlands, and in the American midwest, raccoons have been caught programming microwave ovens. + +_1 The computing power of the solar system is now around one thousand MIPS per gram, and is unlikely to increase in the near term - all but a fraction of one percent of the dumb matter is still locked up below the accessible planetary crusts, and the sapience/mass ratio has hit a glass ceiling that will only be broken when people, corporations, or other posthumans get around to dismantling the larger planets. A start has already been made in Jupiter orbit and the asteroid belt. Greenpeace has sent squatters to occupy Eros and Juno, but the average asteroid is now surrounded by a reef of specialized nanomachinery and debris, victims of a cosmic land grab unmatched since the days of the wild west. The best brains flourish in free fall, minds surrounded by a sapient aether of extensions that out-think their meaty cortices by many orders of magnitude - minds like Amber, Queen of the Inner Ring Imperium, the first self-extending power center in Jupiter orbit. + +_1 Down at the bottom of the terrestrial gravity well, there has been a major economic catastrophe. Cheap immortagens, out-of-control personality adjuvants, and a new formal theory of uncertainty have knocked the bottom out of the insurance and underwriting industries. Gambling on a continuation of the worst aspects of the human condition - disease, senescence, and death - looks like a good way to lose money, and a deflationary spiral lasting almost fifty hours has taken down huge swaths of the global stock market. Genius, good looks, and long life are now considered basic human rights in the developed world: even the poorest backwaters are feeling extended effects from the commoditization of intelligence. + +_1 Not everything is sweetness and light in the era of mature nanotechnology. Widespread intelligence amplification doesn't lead to widespread rational behavior. New religions and mystery cults explode across the planet; much of the Net is unusable, flattened by successive semiotic jihads. India and Pakistan have held their long-awaited nuclear war: external intervention by US and EU nanosats prevented most of the IRBMs from getting through, but the subsequent spate of network raids and Basilisk attacks cause havoc. Luckily, infowar turns out to be more survivable than nuclear war - especially once it is discovered that a simple anti-aliasing filter stops nine out of ten neural-wetware-crashing Langford fractals from causing anything worse than a mild headache. + +_1 New discoveries this decade include the origins of the weakly repulsive force responsible for changes in the rate of expansion of the universe after the big bang, and on a less abstract level, experimental implementations of a Turing Oracle using quantum entanglement circuits: a device that can determine whether a given functional expression can be evaluated in finite time. It's boom time in the field of Extreme Cosmology, where some of the more recherché researchers are bickering over the possibility that the entire universe was created as a computing device, with a program encoded in the small print of the Planck constant. And theorists are talking again about the possibility of using artificial wormholes to provide instantaneous connections between distant corners of space-time. + +_1 Most people have forgotten about the well-known extraterrestrial transmission received fifteen years earlier. Very few people know anything about the second, more complex transmission received a little later. Many of those are now passengers or spectators of the /{Field Circus}/: a light-sail craft that is speeding out of Sol system on a laser beam generated by Amber's installations in low-Jupiter orbit. (Superconducting tethers anchored to Amalthea drag through Jupiter's magnetosphere, providing gigawatts of electricity for the hungry lasers: energy that comes, in turn, from the small moon's orbital momentum.) + +_1 Manufactured by Airbus-Cisco years earlier, the /{Field Circus}/ is a hick backwater, isolated from the mainstream of human culture, its systems complexity limited by mass: The destination lies nearly three light-years from Earth, and even with high acceleration and relativistic cruise speeds, the one-kilogram starwisp and its hundred-kilogram light sail will take the best part of seven years to get there. Sending a human-sized probe is beyond even the vast energy budget of the new orbital states in Jupiter system - near-lightspeed travel is horrifically expensive. Rather than a big, self-propelled ship with canned primates for passengers, as previous generations had envisaged, the starship is a Coke-can-sized slab of nanocomputers, running a neural simulation of the uploaded brain states of some tens of humans at merely normal speed. By the time its occupants beam themselves home again for download into freshly cloned bodies, a linear extrapolation shows that as much change will have overtaken human civilization as in the preceding fifty millennia - the sum total of /{H. sapiens sapiens}/' time on Earth. + +_1 But that's okay by Amber, because what she expects to find in orbit around the brown dwarf Hyundai ^{+4904}^/,{-56}, will be worth the wait. + +* * * + +Pierre is at work in another virtual environment, the one currently running the master control system of the /{Field Circus}/. He's supervising the sail-maintenance 'bots when the message comes in. Two visitors are on their way up the beam from Jupiter orbit. The only other person around is Su Ang, who showed up sometime after he arrived, and she's busy with some work of her own. The master control VM - like all the other human-accessible environments at this level of the ship's virtualization stack - is a construct modeled on a famous movie; this one resembles the bridge of a long-since sunk ocean liner, albeit with discreetly informative user interfaces hovering in front of the ocean views outside the windows. Polished brass gleams softly everywhere. "What was that?" he calls out, responding to the soft chime of a bell. + +"We have visitors," Ang repeats, interrupting her rhythmic chewing. (She's trying out a betel-nut kick, but she's magicked the tooth-staining dye away and will probably detox herself in a few hours.) "They're buffering up the line already; just acknowledging receipt is sucking most of our downstream bandwidth." + +"Any idea who they are?" asks Pierre; he puts his boots up on the back of the vacant helmsman's chair and stares moodily at the endless expanse of green-gray ocean ahead. + +Ang chews a bit more, watching him with an expression he can't interpret. "They're still locked," she says. A pause: "But there was a flash from the Franklins, back home. One of them's some kind of lawyer, while the other's a film producer." + +"A film producer?" + +"The Franklin Trust says it's to help defray our lawsuit expenses. Myanmar is gaining. They've already subpoenaed Amber's downline instance, and they're trying to bring this up in some kind of kangaroo jurisdiction - Oregon Christian Reconstructionist Empire, I think." + +"Ouch." Pierre winces. The daily news from Earth, modulated onto a lower-powered communication laser, is increasingly bad. On the plus side, Amber is incredibly rich: The goodwill futures leveraged off her dad's trust metric means people will bend over backward to do things for her. And she owns a lot of real estate too, a hundred gigatonnes of rock in low-Jupiter orbit with enough KE to power Northern Europe for a century. But her interstellar venture burns through money - both the traditional barter-indirection type and the more creative modern varieties - about the way you would if you heaped up the green pieces of paper and shoveled them onto a conveyor belt leading to the business end of a running rocket motor. Just holding off the environmental protests over de-orbiting a small Jovian moon is a grinding job. Moreover, a whole bunch of national governments have woken up and are trying to legislate themselves a slice of the cake. Nobody's tried to forcibly take over yet (there are two hundred gigawatts of lasers anchored to the Ring Imperium, and Amber takes her sovereign status seriously, has even applied for a seat at the UN and membership in the EC), but the nuisance lawsuits are mounting up into a comprehensive denial of service attack, or maybe economic sanctions. And Uncle Gianni's retirement hasn't helped any, either. "Anything to say about it?" + +"Mmph." Ang looks irritated for some reason. "Wait your turn, they'll be out of the buffer in another couple of days. Maybe a bit longer in the case of the lawyer, he's got a huge infodump packaged on his person. Probably another semisapient class-action lawsuit." + +"I'll bet. They never learn, do they?" + +"What, about the legal system here?" + +"Yup." Pierre nods. "One of Amber's smarter ideas, reviving eleventh-century Scots law and updating it with new options on barratry, trial by combat, and compurgation." He pulls a face and detaches a couple of ghosts to go look out for the new arrivals; then he goes back to repairing sails. The interstellar medium is abrasive, full of dust - each grain of which carries the energy of an artillery shell at this speed - and the laser sail is in a constant state of disintegration. A large chunk of the drive system's mass is silvery utility flakes for patching and replacing the soap-bubble-thin membrane as it ablates away. The skill is in knowing how best to funnel repair resources to where they're needed, while minimizing tension in the suspension lines and avoiding resonance and thrust imbalance. As he trains the patch 'bots, he broods about the hate mail from his elder brother (who still blames him for their father's accident), and about Sadeq's religious injunctions - /{Superstitious nonsense}/, he thinks - and the fickleness of powerful women, and the endless depths of his own nineteen-year-old soul. + +While he's brooding, Ang evidently finishes whatever she was doing and bangs out - not even bothering to use the polished mahogany door at the rear of the bridge, just discorporating and rematerializing somewhere else. Wondering if she's annoyed, he glances up just as the first of his ghosts patches into his memory map, and he remembers what happened when it met the new arrival. His eyes widen: "Oh /{shit!}/" + +It's not the film producer but the lawyer who's just uploaded into the /{Field Circus}/'s virtual universe. Someone's going to have to tell Amber. And although the last thing he wants to do is talk to her, it looks like he's going to have to call her, because this isn't just a routine visit. The lawyer means trouble. + +* * * + +_1 Take a brain and put it in a bottle. Better: take a map of the brain and put it in a map of a bottle - or of a body - and feed signals to it that mimic its neurological inputs. Read its outputs and route them to a model body in a model universe with a model of physical laws, closing the loop. René Descartes would understand. That's the state of the passengers of the /{Field Circus}/ in a nutshell. Formerly physical humans, their neural software (and a map of the intracranial wetware it runs on) has been transferred into a virtual machine environment executing on a honking great computer, where the universe they experience is merely a dream within a dream. + +_1 Brains in bottles - empowered ones, with total, dictatorial, control over the reality they are exposed to - sometimes stop engaging in activities that brains in bodies can't avoid. Menstruation isn't mandatory. Vomiting, angina, exhaustion, and cramp are all optional. So is meatdeath, the decomposition of the corpus. But some activities don't cease, because people (even people who have been converted into a software description, squirted through a high-bandwidth laser link, and ported into a virtualization stack) don't /{want}/ them to stop. Breathing is wholly unnecessary, but suppression of the breathing reflex is disturbing unless you hack your hypothalamic map, and most homomorphic uploads don't want to do that. Then there's eating - not to avoid starvation, but for pleasure: Feasts on sautéed dodo seasoned with silphium are readily available here, and indeed, why not? It seems the human addiction to sensory input won't go away. And that's without considering sex, and the technical innovations that become possible when the universe - and the bodies within it - are mutable. + +* * * + +The public audience with the new arrivals is held in yet another movie: the Parisian palace of Charles IX, the throne room lifted wholesale from /{La Reine Margot}/ by Patrice Chéreau. Amber insisted on period authenticity, with the realism dialed right up to eleven. It's 1572 to the hilt this time, physical to the max. Pierre grunts in irritation, unaccustomed to his beard. His codpiece chafes, and sidelong glances tell him he isn't the only member of the royal court who's uncomfortable. Still, Amber is resplendent in a gown worn by Isabelle Adjani as Marguerite de Valois, and the luminous sunlight streaming through the stained-glass windows high above the crowd of actor zimboes lends a certain barbaric majesty to the occasion. The place is heaving with bodies in clerical robes, doublets, and low-cut gowns - some of them occupied by real people. Pierre sniffs again: Someone (Gavin, with his history bug, perhaps?) has been working on getting the smells right. He hopes like hell that nobody throws up. At least nobody seems to have come as Catherine de Médicis ... + +A bunch of actors portraying Huguenot soldiers approach the throne on which Amber is seated: They pace slowly forward, escorting a rather bemused-looking fellow with long, lank hair and a brocade jacket that appears to be made of cloth-of-gold. "His lordship, Attorney at Arms Alan Glashwiecz!" announces a flunky, reading from a parchment, "here at the behest of the most excellent guild and corporation of Smoot, Sedgwick Associates, with matters of legal import to discuss with Her Royal Highness!" + +A flourish of trumpets. Pierre glances at Her Royal Highness, who nods gracefully, but is slightly peaky - it's a humid summer day and her many-layered robes look very hot. "Welcome to the furthermost soil of the Ring Imperium," she announces in a clear, ringing voice. "I bid you welcome and invite you to place your petition before me in full public session of court." + +Pierre directs his attention to Glashwiecz, who appears to be worried. Doubtless he'd absorbed the basics of court protocol in the Ring (population all of eighteen thousand back home, a growing little principality), but the reality of it, a genuine old-fashioned /{monarchy}/ rooted in Amber's three-way nexus of power, data, and time, always takes a while to sink in. "I would be pleased to do so," he says, a little stiffly, "but in front of all those -" + +Pierre misses the next bit, because someone has just goosed him on the left buttock. He starts and half turns to see Su Ang looking past him at the throne, a lady-in-waiting for the queen. She wears an apricot dress with tight sleeves and a bodice that bares everything above her nipples. There's a fortune in pearls roped into her hair. As he notices her, she winks at him. + +Pierre freezes the scene, decoupling them from reality, and she faces him. "Are we alone now?" she asks. + +"Guess so. You want to talk about something?" he asks, heat rising in his cheeks. The noise around them is a random susurrus of machine-generated crowd scenery, the people motionless as their shared reality thread proceeds independently of the rest of the universe. + +"Of course!" She smiles at him and shrugs. The effect on her chest is remarkable - those period bodices could give a skeleton a cleavage - and she winks at him again. "Oh, Pierre." She smiles. "So easily distracted!" She snaps her fingers, and her clothing cycles through Afghani burqua, nudity, trouser suit, then back to court finery. Her grin is the only constant. "Now that I've got your attention, stop looking at me and start looking at /{him}/." + +Even more embarrassed, Pierre follows her outstretched arm all the way to the momentarily frozen Moorish emissary. "Sadeq?" + +"Sadeq /{knows}/ him, Pierre. This guy, there's something wrong." + +"Shit. You think I don't know that?" Pierre looks at her with annoyance, embarrassment forgotten. "I've seen him before. Been tracking his involvement for years. Guy's a front for the Queen Mother. He acted as her divorce lawyer when she went after Amber's Dad." + +"I'm sorry." Ang glances away. "You haven't been yourself lately, Pierre. I know it's something wrong between you and the Queen. I was worried. You're not paying attention to the little details." + +"Who do you think warned Amber?" he asks. + +"Oh. Okay, so you're in the loop," she says. "I'm not sure. Anyway, you've been distracted. Is there anything I can do to help?" + +"Listen." Pierre puts his hands on her shoulders. She doesn't move, but looks up into his eyes - Su Ang is only one-sixty tall - and he feels a pang of something odd: teenage male uncertainty about the friendship of women. /{What does she want?}/ "I know, and I'm sorry, and I'll try to keep my eyes on the ball some more, but I've been in my own headspace a lot lately. We ought to go back into the audience before anybody notices." + +"Do you want to talk about the problem first?" she asks, inviting his confidence. + +"I -" Pierre shakes his head. /{I could tell her everything}/, he realizes shakily as his metaconscience prods him urgently. He's got a couple of agony-aunt agents, but Ang is a real person and a friend. She won't pass judgment, and her model of human social behavior is a hell of a lot better than any expert system's. But time is in danger of slipping, and besides, Pierre feels dirty. "Not now," he says. "Let's go back." + +"Okay." She nods, then turns away, steps behind him with a swish of skirts, and he unfreezes time again as they snap back into place within the larger universe, just in time to see the respected visitor serve the queen with a class-action lawsuit, and the Queen respond by referring adjudication to trial by combat. + +* * * + +Hyundai ^{+4904}^/,{-56}, is a brown dwarf, a lump of dirty hydrogen condensed from a stellar nursery, eight times as massive as Jupiter but not massive enough to ignite a stable fusion reaction at its core. The relentless crush of gravity has overcome the mutual repulsion of electrons trapped at its core, shrinking it into a shell of slush around a sphere of degenerate matter. It's barely larger than the gas giant the human ship uses as an energy source, but it's much denser. Gigayears ago, a chance stellar near miss sent it careening off into the galaxy on its own, condemned to drift in eternal darkness along with a cluster of frozen moons that dance attendance upon it. + +By the time the /{Field Circus}/ is decelerating toward it at short range - having shed the primary sail, which drifts farther out into interstellar space while reflecting light back onto the remaining secondary sail surface to slow the starwisp - Hyundai ^{+4904}^/,{-56}, is just under one parsec distant from Earth, closer even than Proxima Centauri. Utterly dark at visible wavelengths, the brown dwarf could have drifted through the outer reaches of the solar system before conventional telescopes would have found it by direct observation. Only an infrared survey in the early years of the current century gave it a name. + +A bunch of passengers and crew have gathered on the bridge (now running at one-tenth of real time) to watch the arrival. Amber sits curled up in the captain's chair, moodily watching the gathered avatars. Pierre is still avoiding her at every opportunity, formal audiences excepted, and the damned shark and his pet hydra aren't invited, but apart from that, most of the gang is here. There are sixty-three uploads running on the /{Field Circus}/'s virtualization stack, software copied out of meatbodies who are mostly still walking around back home. It's a crowd, but it's possible to feel lonely in a crowd, even when it's your party. And especially when you're worried about debt, even though you're a billionairess, beneficiary of the human species' biggest reputations-rating trust fund. Amber's clothing - black leggings, black sweater - is as dark as her mood. + +"Something troubles you." A hand descends on the back of the chair next to her. + +She glances round momentarily, nods in recognition. "Yeah. Have a seat. You missed the audience?" + +The thin, brown-skinned man with a neatly cropped beard and deeply lined forehead slips into the seat next to her. "It was not part of my heritage," he explains carefully, "although the situation is not unfamiliar." A momentary smile threatens to crack his stony face. "I found the casting a trifle disturbing." + +"I'm no Marguerite de Valois, but the vacant role ... let's just say, the cap fits." Amber leans back in her chair. "Mind you, Marguerite had an /{interesting}/ life," she muses. + +"Don't you mean depraved and debauched?" her neighbor counters. + +"Sadeq." She closes her eyes. "Let's not pick a fight over absolute morality just right now, please? We have an orbital insertion to carry out, then an artifact to locate, and a dialogue to open, and I'm feeling very tired. Drained." + +"Ah - I apologize." He inclines his head carefully. "Is it your young man's fault? Has he slighted you?" + +"Not exactly -" Amber pauses. Sadeq, whom she basically invited along as ship's theologian in case they ran into any gods, has taken up her pastoral well-being as some kind of hobby. She finds it mildly oppressive at times, flattering at others, surreal always. Using the quantum search resources available to a citizen of the Ring Imperium, he's outpublished his peers, been elected a hojetolislam at an unprecedentedly young age: His original will probably be an ayatollah by the time they get home. He's circumspect in dealing with cultural differences, reasons with impeccable logic, carefully avoids antagonizing her - and constantly seeks to guide her moral development. "It's a personal misunderstanding," she says. "I'd rather not talk about it until we've sorted it out." + +"Very well." He looks unsatisfied, but that's normal. Sadeq still has the dusty soil of a childhood in the industrial city of Yazd stuck to his boots. Sometimes she wonders if their disagreements don't mirror in miniature the gap between the early twentieth and early twenty-first centuries. "But back to the here and now. Do you know where this router is?" + +"I will, in a few minutes or hours." Amber raises her voice, simultaneously spawning a number of search-ghosts. "Boris! You got any idea where we're going?" + +Boris lumbers round in place to face her; today he's wearing a velociraptor, and they don't turn easily in confined spaces. He snarls irritably: "Give me some space!" He coughs, a threatening noise from the back of his wattled throat, "Searching the sail's memory now." The back of the soap-bubble-thin laser sail is saturated with tiny nanocomputers spaced micrometers apart. Equipped with light receptors and configured as cellular automata, they form a gigantic phased-array detector, a retina more than a hundred meters in diameter. Boris is feeding them patterns describing anything that differs from the unchanging starscape. Soon the memories will condense and return as visions of darkness in motion - the cold, dead attendants of an aborted sun. + +"But where is it going to be?" asks Sadeq. "Do you know what you are looking for?" + +"Yes. We should have no trouble finding it," says Amber. "It looks like this." She flicks an index finger at the row of glass windows that front the bridge. Her signet ring flashes ruby light, and something indescribably weird shimmers into view in place of the seascape. Clusters of pearly beads that form helical chains, disks and whorls of color that interlace and knot through one another, hang in space above a darkling planet. "Looks like a William Latham sculpture made out of strange matter, doesn't it?" + +"Very abstract," Sadeq says approvingly. + +"It's alive," she adds. "And when it gets close enough to see us, it'll try to eat us." + +"What?" Sadeq sits up uneasily. + +"You mean nobody told you?" asks Amber: "I thought we'd briefed everybody." She throws a glistening golden pomegranate at him, and he catches it. The apple of knowledge dissolves in his hand, and he sits in a haze of ghosts absorbing information on his behalf. "Damn," she adds mildly. + +Sadeq freezes in place. Glyphs of crumbling stonework overgrown with ivy texture his skin and his dark suit, warning that he's busy in another private universe. + +"/{Hrrrr!}/ Boss! Found something," calls Boris, drooling on the bridge floor. + +Amber glances up. /{Please, let it be the router}/, she thinks. "Put it on the main screen." + +"Are you sure this is safe?" Su Ang asks nervously. + +"Nothing is safe," Boris snaps, clattering his huge claws on the deck. "Here. Look." + +The view beyond the windows flips to a perspective on a dusty bluish horizon: swirls of hydrogen brushed with a high cirrus of white methane crystals, stirred above the freezing point of oxygen by Hyundai ^{+4904}^/,{-56},'s residual rotation. The image-intensification level is huge - a naked human eyeball would see nothing but blackness. Rising above the limb of the gigantic planet is a small pale disk: Callidice, largest moon of the brown dwarf - or second-innermost planet - a barren rock slightly larger than Mercury. The screen zooms in on the moon, surging across a landscape battered by craters and dusted with the spume of ice volcanoes. Finally, just above the far horizon, something turquoise shimmers and spins against a backdrop of frigid darkness. + +"That's it," Amber whispers, her stomach turning to jelly as all the terrible might-have-beens dissolve like phantoms of the night around her; "That's /{it}/!" Elated, she stands up, wanting to share the moment with everybody she values. "Wake up, Sadeq! Someone get that damned cat in here! Where's Pierre? He's got to see this!" + +* * * + +Night and revelry rule outside the castle. The crowds are drunken and rowdy on the eve of the St. Bartholomew's Day massacre. Fireworks burst overhead, and the open windows admit a warm breeze redolent of cooked meats, woodsmoke, open sewers. Meanwhile a lover steals up a tightly-spiraling stone staircase in the near dark; his goal, a prarranged rendezvous. He's been drinking, and his best linen shirt shows the stains of sweat and food. He pauses at the third window to breathe in the outside air and run both hands through his mane of hair, which is long, unkempt, and grimy. /{Why am I doing this?}/ he wonders. This is so unlike him, this messing around - + +He carries on up the spiral. At the top, an oak door gapes on a vestibule lit by a lantern hanging from a hook. He ventures inside into a reception room paneled in oak blackened by age. Crossing the threshold makes another crossover kick in by prior arrangement. Something other than his own volition steers his feet, and he feels an unfamiliar throb in his chest, anticipation and a warmth and looseness lower down that makes him cry out, "where are you?" + +"Over here." He sees her waiting for him in the doorway. She's partially undressed, wearing layered underskirts and a flat-chested corset that makes the tops of her breasts swell like lustrous domes. Her tight sleeves are half-unraveled, her hair disheveled. He's full of her brilliant eyes, the constriction holding her spine straight, the taste in her mouth. She's the magnet for his reality, impossibly alluring, so tense she could burst. "Is it working for you?" she asks. + +"Yes." he feels tight, breathless, squeezed between impossibility and desire as he walks toward her. They've experimented with gender play, trying on the extreme dimorphism of this period as a game, but this is the first time they've done it this way. She opens her mouth: He kisses her, feels the warmth of his tongue thrust between her lips, the strength of his arms enclosing her waist. + +She leans against him, feeling his erection. "So this is how it feels to be you," she says wonderingly. The door to her chamber is ajar, but she doesn't have the self-restraint to wait: The flood of new sensations - rerouted from her physiology model to his proprioceptive sensorium - has taken hold. She grinds her hips against him, pushing deeper into his arms, whining softly at the back of her throat as she feels the fullness in his balls, the tension of his penis. He nearly faints with the rich sensations of her body - it's as if he's dissolving, feeling the throbbing hardness against his groin, turning to water and running away. Somehow he gets his arms around her waist - so tight, so breathless - and stumbles forward into the bedroom. She's whimpering as he drops her on the over-stuffed mattress: "/{Do}/ it to me!" she demands, "Do it now!" + +Somehow he ends up on top of her, hose down around his ankles, skirts bundled up around her waist; she kisses him, grinding her hips against him and murmuring urgent nothings. Then his heart is in his mouth, and there's a sensation like the universe pushing into his private parts, so inside out it takes his breath away. It's hot and as hard as rock, and he wants it inside so badly, but at the same time it's an intrusion, frightening and unexpected. He feels the lightning touch of his tongue on her nipples as he leans closer, feels exposed and terrified and ecstatic as her private places take in his member. As he begins to dissolve into the universe he screams in the privacy of his own head, /{I didn't know it felt like this}/ - + +Afterward, she turns to him with a lazy smile, and asks, "How was it for you?" Obviously assuming that, if she enjoyed it, he must have, too. + +But all he can think of is the sensation of the universe thrusting into him, and of how /{good}/ it felt. All he can hear is his father yelling ("What are you, some kind of queer?") - and he feels dirty. + +* * * + +_1 Greetings from the last megasecond before the discontinuity. + +_1 The solar system is thinking furiously at 10^33^ MIPS - thoughts bubble and swirl in the equivalent of a million billion unaugmented human minds. Saturn's rings glow with waste heat. The remaining faithful of the Latter-Day Saints are correlating the phase-space of their genome and the records of their descent in an attempt to resurrect their ancestors. Several skyhooks have unfurled in equatorial orbit around the earth like the graceful fernlike leaves of sundews, ferrying cargo and passengers to and from orbit. Small, crab like robots swarm the surface of Mercury, exuding a black slime of photovoltaic converters and the silvery threads of mass drivers. A glowing cloud of industrial nanomes forms a haze around the innermost planet as it slowly shrinks under the onslaught of copious solar power and determined mining robots. + +_1 The original incarnations of Amber and her court float in high orbit above Jupiter, presiding over the huge nexus of dumb matter trade that is rapidly biting into the available mass of the inner Jovian system. The trade in reaction mass is brisk, and there are shipments of diamond/vacuum biphase structures to assemble and crank down into the lower reaches of the solar system. Far below, skimming the edges of Jupiter's turbulent cloudscape, a gigantic glowing figure-of-eight - a five-hundred-kilometer-long loop of superconducting cable - traces incandescent trails through the gas giant's magnetosphere. It's trading momentum for electrical current, diverting it into a fly's eye grid of lasers that beam it toward Hyundai ^{+4904}^/,{-56},. As long as the original Amber and her incarnate team can keep it running, the /{Field Circus}/ can continue its mission of discovery, but they're part of the posthuman civilization evolving down in the turbulent depths of Sol system, part of the runaway train being dragged behind the out-of-control engine of history. + +_1 Weird new biologies based on complex adaptive matter take shape in the sterile oceans of Titan. In the frigid depths beyond Pluto, supercooled boson gases condense into impossible dreaming structures, packaged for shipping inward to the fast-thinking core. + +_1 There are still humans dwelling down in the hot depths, but it's getting hard to recognize them. The lot of humanity before the twenty-first century was nasty, brutish, and short. Chronic malnutrition, lack of education, and endemic diseases led to crippled minds and broken bodies. Now, most people multitask: Their meatbrains sit at the core of a haze of personality, much of it virtualized on stacked layers of structured reality far from their physical bodies. Wars and revolutions, or their subtle latter-day cognates, sweep the globe as constants become variables; many people find the death of stupidity even harder to accept than the end of mortality. Some have vitrified themselves to await an uncertain posthuman future. Others have modified their core identities to better cope with the changed demands of reality. Among these are beings whom nobody from a previous century would recognize as human - human/corporation half-breeds, zombie clades dehumanized by their own optimizations, angels and devils of software, slyly self-aware financial instruments. Even their popular fictions are self-deconstructing these days. + +_1 None of this, other than the barest news summary, reaches the /{Field Circus}/: The starwisp is a fossil, left behind by the broad sweep of accelerating progress. But it is aboard the /{Field Circus}/ that some of the most important events remaining in humanity's future light cone take place. + +* * * + +"Say hello to the jellyfish, Boris." + +Boris, in human drag, for once, glares at Pierre, and grips the pitcher with both hands. The contents of the jug swirl their tentacles lazily: One of them flips almost out of solution, dislodging an impaled cocktail cherry. "Will get you for this," Boris threatens. The smoky air around his head is a-swirl with daemonic visions of vengeance. + +Su Ang stares intently at Pierre who is watching Boris as he raises the jug to his lips and begins to drink. The baby jellyfish - small, pale blue, with cuboid bells and four clusters of tentacles trailing from each corner - slips down easily. Boris winces momentarily as the nematocysts let rip inside his mouth, but in a moment or so, the cubozoan slips down, and in the meantime, his biophysics model clips the extent of the damage to his stinger-ruptured oropharynx. + +"Wow," he says, taking another slurp of sea wasp margaritas. "Don't try this at home, fleshboy." + +"Here." Pierre reaches out. "Can I?" + +"Invent your own damn poison," Boris sneers - but he releases the jug and passes it to Pierre, who raises it and drinks. The cubozoan cocktail reminds him of fruit jelly drinks in a hot Hong Kong summer. The stinging in his palate is sharp but fades rapidly, producing an intimate burn when the alcohol hits the mild welts that are all this universe will permit the lethal medusa to inflict on him. + +"Not bad," says Pierre, wiping a stray loop of tentacle off his chin. He pushes the pitcher across the table toward Su Ang. "What's with the wicker man?" He points a thumb over his back at the table jammed in the corner opposite the copper-topped bar. + +"Who cares?" asks Boris."'S part of the scenery, isn't it?" + +The bar is a three-hundred-year-old brown café with a beer menu that runs to sixteen pages and wooden walls stained the color of stale ale. The air is thick with the smells of tobacco, brewer's yeast, and melatonin spray: and none of it exists. Amber dragged it out of the Franklin borg's collective memories, by way of her father's scattershot e-mails annotating her corporeal origins - the original is in Amsterdam, if that city still exists. + +"/{I}/ care who it is," says Pierre. + +"Save it," Ang says quietly. "I think it's a lawyer with a privacy screen." + +Pierre glances over his shoulder and glares. "Really?" + +Ang puts a restraining hand on his wrist: "Really. Don't pay it any attention. You don't have to, until the trial, you know." + +The wicker man sits uneasily in the corner. It resembles a basket-weave silhouette made from dried reeds, dressed in a red kerchief. A glass of doppelbock fills the mess of tied-off ends where its right hand ought to be. From time to time, it raises the glass as if to take a mouthful, and the beer vanishes into the singular interior. + +"Fuck the trial," Pierre says shortly. /{And fuck Amber, too, for naming me her public defender}/ - + +"Since when do lawsuits come with an invisible man?" asks Donna the Journalist, blitting into the bar along with a patchy historical trail hinting that she's just come from the back room. + +"Since -" Pierre blinks. "Hell." When Donna entered, so did Aineko; or maybe the cat's been there all the time, curled up loaf-of-bread fashion on the table in front of the wicker man. "You're damaging the continuity," Pierre complains. "This universe is broken." + +"Fix it yourself," Boris tells him. "Everybody else is coping." He snaps his fingers. "Waiter!" + +"Excuse me." Donna shakes her head. "I didn't mean to harm anything." + +Ang, as always, is more accommodating. "How are you?" she asks politely: "Would you like to try this most excellent poison cocktail?" + +"I am well," says Donna. A heavily built German woman - blonde and solidly muscular, according to the avatar she's presenting to the public - she's surrounded by a haze of viewpoints. They're camera angles on her society of mind, busily integrating and splicing her viewpoint threads together in an endless journal of the journey. A stringer for the CIA media consortium, she uploaded to the ship in the same packet stream as the lawsuit. "/{Danke}/, Ang." + +"Are you recording right now?" asks Boris. + +Donna sniffs. "When am I not?" A momentary smile: "I am only a scanner, no? Five hours, until arrival, to go. I may stop after then." Pierre glances across the table at Su Ang's hands; her knuckles are white and tense. "I am to avoid missing anything if possible," Donna continues, oblivious to Ang's disquiet. "There are eight of me at present! All recording away." + +"That's all?" Ang asks, raising an eyebrow. + +"Yes, that is all, and I have a job to do! Don't tell me you do not enjoy what it is that you do here?" + +"Right." Pierre glances in the corner again, avoiding eye contact with the hearty Girl Friday wannabe. He has a feeling, that if there were any hills hereabouts to animate, she'd be belting out the music. "Amber told you about the privacy code here?" + +"There is a privacy code?" asks Donna, swinging at least three subjective ghosts to bear on him for some reason - evidently he's hit an issue she has mixed feelings about. + +"A privacy code," Pierre confirms. "No recording in private, no recording where people withhold permission in public, and no sandboxes and cutups." + +Donna looks offended. "I would never do such a thing! Trapping a copy of someone in a virtual space to record their responses would be assault under Ring legal code, not true?" + +"Your mother," Boris says snidely, brandishing a fresh jug of iced killer jellyfish in her direction. + +"As long as we all agree," Ang interrupts, searching for accord. "It's all going to be settled soon, isn't it?" + +"Except for the lawsuit," mutters Pierre, glancing at the corner again. + +"I don't see the problem," says Donna, "that's just between Amber and her downlink adversaries!" + +"Oh, it's a problem all right," says Boris, his tone light. "What are your options worth?" + +"My -" Donna shakes her head. "I'm not vested." + +"Plausible." Boris doesn't crack a smile. "Even so, when we go home, your credibility metric will bulge. Assuming people still use distributed trust markets to evaluate the stability of their business partners." + +/{Not vested}/. Pierre turns it over in his mind, slightly surprised. He'd assumed that everybody aboard the ship - except, perhaps, the lawyer, Glashwiecz - was a fully vested member of the expeditionary company. + +"I am not vested," Donna insists. "I'm listed independently." For a moment, an almost-smile tugs at her face, a charmingly reticent expression that has nothing to do with her bluff exterior. "Like the cat." + +"The -" Pierre turns round in a hurry. Yes, Aineko appears to be sitting silently at the table with the wicker man; but who knows what's going through that furry head right now? /{I'll have to bring this up with Amber, he realizes uneasily. I ought to bring this up with Amber}/ ... "but your reputation won't suffer for being on this craft, will it?" he asks aloud. + +"I will be all right," Donna declares. The waiter comes over: "Mine will be a bottle of schneiderweisse," she adds. And then, without breaking step: "Do you believe in the singularity?" + +"Am I a singularitarian, do you mean?" asks Pierre, a fixed grin coming to his face. + +"Oh, no, no, no!" Donna waves him down, grins broadly, nods at Su Ang: "I do not mean it like that! Attend: What I meant to ask was whether you in the concept of a singularity believe, and if so, where it is?" + +"Is this intended for a public interview?" asks Ang. + +"Well, I cannot into a simulation drag you off and expose you to an imitative reality excursion, can I?" Donna leans back as the bartender places a ceramic stein in front of her. + +"Oh. Well." Ang glances warningly at Pierre and dispatches a very private memo to scroll across his vision: /{Don't play with her, this is serious}/. Boris is watching Ang with an expression of hopeless longing. Pierre tries to ignore it all, taking the journalist's question seriously. "The singularity is a bit like that old-time American Christian rapture nonsense, isn't it?" he says. "When we all go a-flying up to heaven, leaving our bodies behind." He snorts, reaches into thin air and gratuitously violates causality by summoning a jug of ice-cold sangria into existence. "The rapture of the nerds. I'll drink to that." + +"But when did it take place?" asks Donna. "My audience, they will to know your opinion be needing." + +"Four years ago, when we instantiated this ship," Pierre says promptly. + +"Back in the teens," says Ang. "When Amber's father liberated the uploaded lobsters." + +"Is not happening yet," contributes Boris. "Singularity implies infinite rate of change achieved momentarily. Future not amenable thereafter to prediction by presingularity beings, right? So has not happened." + +"Au contraire. It happened on June 6th, 1969, at eleven hundred hours, eastern seaboard time," Pierre counters. "That was when the first network control protocol packets were sent from the data port of one IMP to another - the first ever Internet connection. /{That's}/ the singularity. Since then we've all been living in a universe that was impossible to predict from events prior to that time." + +"It's rubbish," counters Boris. "Singularity is load of religious junk. Christian mystic rapture recycled for atheist nerds." + +"Not so." Su Ang glances at him, hurt. "Here we are, sixty something human minds. We've been migrated - while still awake - right out of our own heads using an amazing combination of nanotechnology and electron spin resonance mapping, and we're now running as software in an operating system designed to virtualize multiple physics models and provide a simulation of reality that doesn't let us go mad from sensory deprivation! And this whole package is about the size of a fingertip, crammed into a starship the size of your grandmother's old Walkman, in orbit around a brown dwarf just over three light-years from home, on its way to plug into a network router created by incredibly ancient alien intelligences, and you can tell me that the idea of a fundamental change in the human condition is nonsense?" + +"Mmph." Boris looks perplexed. "Would not put it that way. The /{singularity}/ is nonsense, not uploading or -" + +"Yah, right." Ang smiles winningly at Boris. After a moment, he wilts. + +Donna beams at them enthusiastically. "Fascinating!" she enthuses. "Tell me, what are these lobsters you think are important?" + +"They're Amber's friends," Ang explains. "Years ago, Amber's father did a deal with them. They were the first uploads, you know? Hybridized spiny lobster neural tissue and a heuristic API and some random mess of backward-chaining expert systems. They got out of their lab and into the Net and Manfred brokered a deal to set them free, in return for their help running a Franklin orbital factory. This was way back in the early days before they figured out how to do self-assembly properly. Anyway, the lobsters insisted - part of their contract - that Bob Franklin pay to have the deep-space tracking network beam them out into interstellar space. They wanted to emigrate, and looking at what's happened to the solar system since then, who can blame them?" + +Pierre takes a big mouthful of sangria. "The cat," he says. + +"The cat -" Donna's head swivels round, but Aineko has banged out again, retroactively editing her presence out of the event history of this public space. "What about the cat?" + +"The /{family}/ cat," explains Ang. She reaches over for Boris's pitcher of jellyfish juice, but frowns as she does so: "Aineko wasn't conscious back then, but later ... when SETI@home finally received that message back, oh, however many years ago, Aineko remembered the lobsters. And cracked it wide open while all the CETI teams were still thinking in terms of von Neumann architectures and concept-oriented programming. The message was a semantic net designed to mesh perfectly with the lobster broadcast all those years ago, and provide a high-level interface to a communications network we're going to visit." She squeezes Boris's fingertips. "SETI@home logged these coordinates as the origin of the transmission, even though the public word was that the message came from a whole lot farther away - they didn't want to risk a panic if people knew there were aliens on our cosmic doorstep. Anyway, once Amber got established, she decided to come visiting. Hence this expedition. Aineko created a virtual lobster and interrogated the ET packet, hence the communications channel we're about to open." + +"Ah, this is all a bit clearer now," says Donna. "But the lawsuit - " She glances at the hollow wicker man in the corner. + +"Well, there we have a problem," Ang says diplomatically. + +"No," says Pierre. "/{I}/ have a problem. And it's all Amber's fault." + +"Hmm?" Donna stares at him. "Why blame the Queen?" + +"Because she's the one who picked the lunar month to be the reporting time period for companies in her domain, and specified trial by combat for resolving corporate conflicts," he grumbles. "And /{compurgation}/, but that's not applicable to this case because there isn't a recognized reputation server within three light-years. Trial by combat, for civil suits in this day and age! And she appointed me her champion." /{In the most traditional way imaginable}/, he remembers with a warm frisson of nostalgia. He'd been hers in body and soul before that disastrous experiment. He isn't sure whether it still applies, but - "I've got to take on this lawsuit on her behalf, in adversarial stance." + +He glances over his shoulder. The wicker man sits there placidly, pouring beer down his invisible throat like a tired farm laborer. + +"Trial by combat," Su Ang explains to Donna's perplexed ghost-swarm, which is crawling all over the new concept in a haze of confusion. "Not physical combat, but a competition of ability. It seemed like a good idea at the time, to keep junk litigants out of the Ring Imperium, but the Queen Mother's lawyers are /{very}/ persistent. Probably because it's taken on something of a grudge match quality over the years. I don't think Pamela cares much anymore, but this ass-hat lawyer has turned it into a personal crusade. I don't think he liked what happened when the music Mafiya caught up with him. But there's a bit more to it, because if he wins, he gets to own everything. And I mean /{everything}/." + +* * * + +Ten million kilometers out and Hyundai ^{+4904}^/,{-56}, looms beyond the parachute-shaped sail of the /{Field Circus}/ like a rind of darkness bitten out of the edge of the universe. Heat from the gravitational contraction of its core keeps it warm, radiating at six hundred degrees absolute, but the paltry emission does nothing to break the eternal ice that grips Callidice, Iambe, Celeus, and Metaneira, the stillborn planets locked in orbit around the brown dwarf. + +Planets aren't the only structures that orbit the massive sphere of hydrogen. Close in, skimming the cloud tops by only twenty thousand kilometers, Boris's phased-array eye has blinked at something metallic and hot. Whatever it is, it orbits out of the ecliptic plane traced by the icy moons, and in the wrong direction. Farther out, a speckle of reflected emerald laser light picks out a gaudy gem against the starscape: their destination, the router. + +"That's it," says Boris. His body shimmers into humanity, retconning the pocket universe of the bridge into agreeing that he's been present in primate form all along. Amber glances sideways. Sadeq is still wrapped in ivy, his skin the texture of weathered limestone. "Closest approach is sixty-three light-seconds, due in eight hundred thousand. Can give you closer contact if we maneuver, but will take time to achieve a stable orbit." + +Amber nods thoughtfully, sending copies of herself out to work the mechanics. The big light sail is unwieldy, but can take advantage of two power sources: the original laser beam from Jupiter, and its reflection bouncing off the now-distant primary light sail. The temptation is to rely on the laser for constant acceleration, to just motor on in and squat on the router's cosmic doorstep. But the risk of beam interruption is too dangerous. It's happened before, for seconds to minutes at a time, on six occasions during the voyage so far. She's not sure what causes the beam downtime (Pierre has a theory about Oort cloud objects occulting the laser, but she figures it's more likely to be power cuts back at the Ring), but the consequences of losing power while maneuvering deep in a quasi-stellar gravity well are much more serious than a transient loss of thrust during free interstellar flight. "Let's just play it safe," she says. "We'll go for a straight orbital insertion and steady cranking after that. We've got enough gravity wells to play pinball with. I don't want us on a free-flight trajectory that entails lithobraking if we lose power and can't get the sail back." + +"Very prudent," Boris agrees. "Marta, work on it." A buzzing presence of not-insects indicates that the heteromorphic helmswoman is on the job. "I think we should be able to take our first close-in look in about two million seconds, but if you want, I can ping it now ...?" + +"No need for protocol analysis," Amber says casually. "Where's - ah, there you are." She reaches down and picks up Aineko, who twists round sinuously and licks her arm with a tongue like sandpaper. "What do you think?" + +"Do you want fries with that?" asks the cat, focusing on the artifact at the center of the main screen in front of the bridge. + +"No, I just want a conversation," says Amber. + +"Well, okay." The cat dims, moves jerkily, sucking up local processing power so fast that it disturbs the local physics model. "Opening port now." + +A subjective minute or two passes. "Where's Pierre?" Amber asks herself quietly. Some of the maintenance metrics she can read from her privileged viewpoint are worrying. The /{Field Circus}/ is running at almost eighty percent of utilization. Whatever Aineko is doing in order to establish the interface to the router, it's taking up an awful lot of processing power and bandwidth. "And where's the bloody lawyer?" she adds, almost as an afterthought. + +The /{Field Circus}/ is small, but its light sail is highly controllable. Aineko takes over a cluster of cells in its surface, turning them from straight reflectors into phase-conjugate mirrors: A small laser on the ship's hull begins to flicker thousands of times a second, and the beam bounces off the modified segment of mirror, focusing to a coherent point right in front of the distant blue dot of the router. Aineko ramps up the modulation frequency, adds a bundle of channels using different wavelengths, and starts feeding out a complex set of preplanned signals that provide an encoding format for high-level data. + +% check point + +"Leave the lawyer to me." She starts, glancing sideways to see Sadeq watching her. He smiles without showing his teeth. "Lawyers do not mix with diplomacy," he explains. + +"Huh." Ahead of them, the router is expanding. Strings of nacreous spheres curl in strange loops around a hidden core, expanding and turning inside out in systolic pulses that spawn waves of recomplication through the structure. A loose red speckle of laser light stains one arm of beads; suddenly it flares up brilliantly, reflecting data back at the ship. "Ah!" + +"Contact," purrs the cat. Amber's fingertips turn white where she grips the arms of her chair. + +"What does it say?" she asks, quietly. + +"What do /{they}/ say," corrects Aineko. "It's a trade delegation, and they're uploading right now. I can use that negotiation network they sent us to give them an interface to our systems if you want." + +"Wait!" Amber half stands in sudden nervousness. "Don't give them free access! What are you thinking of? Stick them in the throne room, and we'll give them a formal audience in a couple of hours." She pauses. "That network layer they sent through. Can you make it accessible to us, use it to give us a translation layer into their grammar-mapping system?" + +The cat looks round, thumps her tail irritably: "You'd do better loading the network yourself -" + +"I don't want /{anybody}/ on this ship running alien code before we've vetted it thoroughly," she says urgently. "In fact, I want them bottled up in the Louvre grounds, just as thoroughly as we can, and I want them to come to us through our own linguistic bottleneck. Got that?" + +"Clear," Aineko grumbles. + +"A trade delegation," Amber thinks aloud. "What would Dad make of that?" + +* * * + +One moment he's in the bar, shooting bull with Su Ang and Donna the Journalist's ghost and a copy of Boris; the next he's abruptly precipitated into a very different space. + +Pierre's heart seems to tumble within his rib cage, but he forces himself to stay calm as he glances around the dim, oak-paneled chamber. This is wrong, so wrong that it signifies either a major systems crash or the application of frightening privilege levels to his realm. The only person aboard who's entitled to those privileges is - + +"Pierre?" + +She's behind him. He turns angrily. "Why did you drag me in here? Don't you know it's rude to -" + +"Pierre." + +He stops and looks at Amber. He can't stay angry at her for long, not to her face. She's not dumb enough to bat her eyelashes at him, but she's disarmingly cute for all that. Nevertheless, something inside him feels shriveled and /{wrong}/ in her presence. "What is it?" he says, curtly. + +"I don't know why you've been avoiding me." She starts to take a step forward, then stops and bites her lip. /{Don't do this to me!}/ he thinks. "You know it hurts?" + +"Yes." That much of an admission hurts him, too. He can hear his father yelling over his shoulder, the time he found him with Laurent, elder brother: It's a choice between père or Amber, but it's not a choice he wants to make. /{The shame}/. "I didn't - I have some issues." + +"It was the other night?" + +He nods. /{Now}/ she takes a step forwards. "We can talk about it, if you want. Whatever you want," she says. And she leans toward him, and he feels his resistance crumbling. He reaches out and hugs her, and she wraps her arms around him and leans her chin on his shoulder, and this doesn't feel wrong: How can anything this good be bad? + +"It made me uncomfortable," he mumbles into her hair. "Need to sort myself out." + +"Oh, Pierre." She strokes the down at the back of his neck. "You should have said. We don't have to do it that way if you don't want to." + +How to tell her how hard it is to admit that anything's wrong? Ever? "You didn't drag me here to tell me that," he says, implicitly changing the subject. + +Amber lets go of him, backs away almost warily. "What is it?" she asks. + +"Something's wrong?" he half asks, half asserts. "Have we made contact yet?" + +"Yeah," she says, pulling a face. "There's an alien trade delegation in the Louvre. That's the problem." + +"An alien trade delegation." He rolls the words around the inside of his mouth, tasting them. They feel paradoxical, cold and slow after the hot words of passion he's been trying to avoid uttering. It's his fault for changing the subject. + +"A trade delegation," says Amber. "I should have anticipated. I mean, we were going to go through the router ourselves, weren't we?" + +He sighs. "We thought we were going to do that." A quick prod at the universe's controls determines that he has certain capabilities: He invokes an armchair, sprawls across it. "A network of point-to-point wormholes linking routers, self-replicating communication hubs, in orbit around most of the brown dwarfs of the galaxy. That's what the brochure said, right? That's what we expected. Limited bandwidth, not a lot of use to a mature superintelligence that has converted the free mass of its birth solar system into computronium, but sufficient to allow it to hold conversations with its neighbors. Conversations carried out via a packet-switched network in real time, not limited by the speed of light, but bound together by a common reference frame and the latency between network hops." + +"That's about the size of it," she agrees from the carved-ruby throne beside him. "Except there's a trade delegation waiting for us. In fact, they're coming aboard already. And I don't buy it - something about the whole setup stinks." + +Pierre's brow wrinkles. "You're right, it doesn't make sense," he says, finally. "Doesn't make sense at all." + +Amber nods. "I carry a ghost of Dad around. He's really upset about it." + +"Listen to your old man." Pierre's lips quirk humorlessly. "We were going to jump through the looking glass, but it seems someone has beaten us to the punch. Question is why?" + +"I don't like it." Amber reaches out sideways, and he catches her hand. "And then there's the lawsuit. We have to hold the trial sooner rather than later." + +He lets go of her fingers. "I'd really be much happier if you hadn't named me as your champion." + +"Hush." The scenery changes; her throne is gone, and instead she's sitting on the arm of his chair, almost on top of him. "Listen. I had a good reason." + +"Reason?" + +"You have choice of weapons. In fact, you have the choice of the field. This isn't just 'hit 'em with a sword until they die' time." She grins, impishly. "The whole point of a legal system that mandates trial by combat for commercial lawsuits, as opposed to an adjudication system, is to work out who's a fitter servant of society and hence deserving of preferential treatment. It's crazy to apply the same legal model to resolving corporate disputes that we use for arguments among people, especially as most companies are now software abstractions of business models; the interests of society are better served by a system that encourages efficient trade activity than by one that encourages litigation. It cuts down on corporate bullshit while encouraging the toughest ones to survive, which is why I /{was}/ going to set up the trial as a contest to achieve maximum competitive advantage in a xenocommerce scenario. Assuming they really are traders, I figure we have more to trade with them than some damn lawyer from the depths of earth's light cone." + +Pierre blinks. "Um." Blinks again. "I thought you wanted me to sideload some kind of fencing kinematics program and /{skewer}/ the guy?" + +"Knowing how well I know you, why did you ever think that?" She slides down the arm of his chair and lands on his lap. She twists round to face him in point-blank close-up. "Shit, Pierre, I /{know}/ you're not some kind of macho psychopath!" + +"But your mother's lawyers -" + +She shrugs dismissively. "They're /{lawyers}/. Used to dealing with precedents. Best way to fuck with their heads is to change the way the universe works." She leans against his chest. "You'll make mincemeat of them. Profit-to-earnings ratio through the roof, blood on the stock exchange floor." His hands meet around the small of her back. "My hero!" + +* * * + +The Tuileries are full of confused lobsters. + +Aineko has warped this virtual realm, implanting a symbolic gateway in the carefully manicured gardens outside. The gateway is about two meters in diameter, a verdigris-coated orouborous loop of bronze that sits like an incongruous archway astride a gravel path in the grounds. Giant black lobsters - each the size of a small pony - shuffle out of the loop's baby blue buffer field, antennae twitching. They wouldn't be able to exist in the real world, but the physics model here has been amended to permit them to breathe and move, by special dispensation. + +Amber sniffs derisively as she enters the great reception room of the Sully wing. "Can't trust that cat with anything," she mutters. + +"It was your idea, wasn't it?" asks Su Ang, trying to duck past the zombie ladies-in-waiting who carry Amber's train. Soldiers line the passage to either side, forming rows of steel to let the Queen pass unhindered. + +"To let the cat have its way, yes," Amber is annoyed. "But I didn't mean to let it wreck the continuity! I won't have it!" + +"I never saw the point of all this medievalism, before," Ang observes. "It's not as if you can avoid the singularity by hiding in the past." Pierre, following the Queen at a distance, shakes his head, knowing better than to pick a fight with Amber over her idea of stage scenery. + +"It looks good," Amber says tightly, standing before her throne and waiting for the ladies-in-waiting to arrange themselves before her. She sits down carefully, her back straight as a ruler, voluminous skirts belling up. Her dress is an intricate piece of sculpture that uses the human body within as a support. "It impresses the yokels and looks convincing on narrowcast media. It provides a prefabricated sense of tradition. It hints at the political depths of fear and loathing intrinsic to my court's activities, and tells people not to fuck with me. It reminds us where we've come from ... and it doesn't give away anything about where we're going." + +"But that doesn't make any difference to a bunch of alien lobsters," points out Su Ang. "They lack the reference points to understand it." She moves to stand behind the throne. Amber glances at Pierre, waves him over. + +Pierre glances around, seeking real people, not the vacant eigenfaces of the zombies that give this scenery added biological texture. There in the red gown, isn't that Donna the Journalist? And over there, too, with shorter hair and wearing male drag; she gets everywhere. That's Boris, sitting behind the bishop. + +"/{You}/ tell her," Ang implores him. + +"I can't," he admits. "We're trying to establish communication, aren't we? But we don't want to give too much away about what we are, how we think. A historical distancing act will keep them from learning too much about us: The phase-space of technological cultures that could have descended from these roots is too wide to analyse easily. So we're leaving them with the lobster translators and not giving anything away. Try to stay in character as a fifteenth-century duchess from Albì - it's a matter of national security." + +"Humph." Ang frowns as a flunky hustles forward to place a folding chair behind her. She turns to face the expanse of red-and-gold carpet that stretches to the doorway as trumpets blat and the doors swing open to admit the deputation of lobsters. + +The lobsters are as large as wolves, black and spiny and ominous. Their monochrome carapaces are at odds with the brightly colored garb of the human crowd. Their antennae are large and sharp as swords. But for all that, they advance hesitantly, eye turrets swiveling from side to side as they take the scene in. Their tails drag ponderously on the carpet, but they have no trouble standing. + +The first of the lobsters halts short of the throne and angles itself to train an eye on Amber. "Am inconsistent," it complains. "There is no liquid hydrogen monoxide here, and you-species am misrepresented by initial contact. Inconsistency, explain?" + +"Welcome to the human physical space-traveling interface unit /{Field Circus}/," Amber replies calmly. "I am pleased to see your translator is working adequately. You are correct, there is no water here. The lobsters don't normally need it when they visit us. And we humans are not water-dwellers. May I ask who you are when you're not wearing borrowed lobster bodies?" + +Confusion. The second lobster rears up and clatters its long, armored antennae together. Soldiers to either side tighten their grips on their spears, but it drops back down again soon enough. + +"We are the Wunch," announces the first lobster, speaking clearly. "This is a body-compliant translation layer. Based on map received from yourspace, units forty thousand trillion light-kilometers ago?" + +"/{He means twenty years}/," Pierre whispers on a private channel Amber has multicast for the other real humans in the audience chamber reality. "/{They've confused space and time for measurement purposes. Does this tell us something?}/" + +"/{Relatively little}/," comments someone else - Chandra? A round of polite laughter greets the joke, and the tension in the room eases slightly. + +"We are the Wunch," the lobster repeats. "We come to exchange interest. What have you got that we want?" + +Faint frown lines appear on Amber's forehead. Pierre can see her thinking very rapidly. "We consider it impolite to ask," she says quietly. + +Clatter of claws on underlying stone floor. Chatter of clicking mandibles. "You accept our translation?" asks the leader. + +"Are you referring to the transmission you sent us, uh, thirty thousand trillion light-kilometers behind?" asks Amber. + +The lobster bobs up and down on its legs. "True. We send." + +"We cannot integrate that network," Amber replies blandly, and Pierre forces himself to keep a straight face. (Not that the lobsters can read human body language yet, but they'll undoubtedly be recording everything that happens here for future analysis.) "They come from a radically different species. Our goal in coming here is to connect our species to the network. We wish to exchange advantageous information with many other species." + +Concern, alarm, agitation. "You cannot do that! You are not /{untranslatable entity signifier}/." + +Amber raises a hand. "You said /{untranslatable entity signifier}/. I did not understand that. Can you paraphrase?" + +"We, like you, are not /{untranslatable entity signifier}/. The network is for /{untranslatable entity signifier}/. We are to the /{untranslatable concept #1}/ as a single-celled organism is to ourselves. You and we cannot /{untranslatable concept #2}/. To attempt trade with /{untranslatable entity signifier}/ is to invite death or transition to /{untranslatable concept #1}/." + +Amber snaps her fingers: time freezes. She glances round at Su Ang, Pierre, the other members of her primary team. "Opinions, anyone?" + +Aineko, hitherto invisible, sits up on the carpet at the foot of the dais. "I'm not sure. The reason those macros are tagged is that there's something wrong with their semantics." + +"Wrong with - how?" asks Su Ang. + +The cat grins, cavernously, and begins to fade. "Wait!" snaps Amber. + +Aineko continues her fade, but leaves a shimmering presence behind: not a grin, but a neural network weighting map, three-dimensional and incomprehensibly complicated. "The /{untranslatable entity concept #1}/ when mapped onto the lobster's grammar network has elements of 'god' overloaded with attributes of mysticism and zenlike incomprehensibility. But I'm pretty sure that what it /{really}/ means is 'optimized conscious upload that runs much faster than real-time'. A type-one weakly superhuman entity, like, um, the folks back home. The implication is that this Wunch wants us to view them as gods." The cat fades back in. "Any takers?" + +"Small-town hustlers," mutters Amber. "Talking big - or using a dodgy metagrammar that makes them sound bigger than they are - to bilk the hayseeds new to the big city." + +"Most likely." Aineko turns and begins to wash her flank. + +"What are we going to do?" asks Su Ang. + +"Do?" Amber raises a pencil-lined eyebrow, then flashes a grin that chops a decade off her apparent age: "We're going to mess with their heads!" She snaps her fingers again and time unfreezes. There's no change in continuity except that Aineko is still present, at the foot of the throne. The cat looks up and gives the queen a dirty look. "We understand your concern," Amber says smoothly, "but we have already given you the physiology models and neural architecture of the bodies that you are wearing. We want to communicate. Why won't you show us your real selves or your real language?" + +"This is trade language!" protests Lobster Number One. "Wunch am/are metabolically variable coalition from number of worlds. No uniformity of interface. Easiest to conform to one plan and speak one tongue optimized for your comprehension." + +"Hmm." Amber leans forward. "Let me see if I understand you. You are a coalition of individuals from a number of species. You prefer to use the common user interface model we sent you, and offered us the language module you're using for an exchange? And you want to trade with us." + +"Exchange interest," the Wunch emphasizes, bouncing up and down on its legs. "Can offer much! Sense of identity of a thousand civilizations. Safe tunnels to a hundred archives on the net suitable for beings who are not /{untranslatable entity signifier}/. Able to control risks of communication. Have technique of manipulating matter at molecular level. Solution to algorithmic iterated systems based on quantum entanglement." + +"/{Old-fashioned nanotechnology and shiny beads to dazzle the primitives}/," Pierre mutters on Amber's multicast channel. "/{How backward do they think we are}/?" + +% note italics marked differently should have been "H/{ow backward do they think we are}/?" + +"/{The physics model in here is really overdone}/," comments Boris. "/{They may even think this is real, that we're primitives coat-tailing it on the back of the lobsters' efforts}/." + +Amber forces a smile. "That is most interesting!" she trills at the Wunch's representatives. "I have appointed two representatives who will negotiate with you; this is an internal contest within my own court. I commend to you Pierre Naqet, my own commercial representative. In addition, you may want to deal with Alan Glashwiecz, an independent factor who is not currently present. Others may come forward in due course if that is acceptable." + +"It pleases us," says Lobster Number One. "We are tired and disoriented by the long journey through gateways to this place. Request resumption of negotiations later?" + +"By all means." Amber nods. A sergeant-at-arms, a mindless but impressive zimboe controlled by her spider's nest of personality threads, blows a sharp note on his trumpet. The first audience is at an end. + +* * * + +_1 Outside the light cone of the /{Field Circus}/, on the other side of the spacelike separation between Amber's little kingdom in motion and the depths of empire time that grip the solar system's entangled quantum networks, a singular new reality is taking shape. + +_1 Welcome to the moment of maximum change. + +_1 About ten billion humans are alive in the solar system, each mind surrounded by an exocortex of distributed agents, threads of personality spun right out of their heads to run on the clouds of utility fog - infinitely flexible computing resources as thin as aerogel - in which they live. The foggy depths are alive with high-bandwidth sparkles; most of Earth's biosphere has been wrapped in cotton wool and preserved for future examination. For every living human, a thousand million software agents carry information into the farthest corners of the consciousness address space. + +_1 The sun, for so long an unremarkable mildly variable G2 dwarf, has vanished within a gray cloud that englobes it except for a narrow belt around the plane of the ecliptic. Sunlight falls, unchanged, on the inner planets: Except for Mercury, which is no longer present, having been dismantled completely and turned into solar-powered high-temperature nanocomputers. A much fiercer light falls on Venus, now surrounded by glittering ferns of carbon crystals that pump angular momentum into the barely spinning planet via huge superconducting loops wound around its equator. This planet, too, is due to be dismantled. Jupiter, Neptune, Uranus - all sprout rings as impressive as Saturn's. But the task of cannibalizing the gas giants will take many times longer than the small rocky bodies of the inner system. + +_1 The ten billion inhabitants of this radically changed star system remember being human; almost half of them predate the millennium. Some of them still /{are}/ human, untouched by the drive of meta-evolution that has replaced blind Darwinian change with a goal-directed teleological progress. They cower in gated communities and hill forts, mumbling prayers and cursing the ungodly meddlers with the natural order of things. But eight out of every ten living humans are included in the phase-change. It's the most inclusive revolution in the human condition since the discovery of speech. + +_1 A million outbreaks of gray goo - runaway nanoreplicator excursions - threaten to raise the temperature of the biosphere dramatically. They're all contained by the planetary-scale immune system fashioned from what was once the World Health Organization. Weirder catastrophes threaten the boson factories in the Oort cloud. Antimatter factories hover over the solar poles. Sol system shows all the symptoms of a runaway intelligence excursion, exuberant blemishes as normal for a technological civilization as skin problems on a human adolescent. + +_1 The economic map of the planet has changed beyond recognition. Both capitalism and communism, bickering ideological children of a protoindustrial outlook, are as obsolete as the divine right of kings: Companies are alive, and dead people may live again, too. Globalism and tribalism have run to completion, diverging respectively into homogeneous interoperability and the Schwarzschild radius of insularity. Beings that remember being human plan the deconstruction of Jupiter, the creation of a great simulation space that will expand the habitat available within the solar system. By converting all the nonstellar mass of the solar system into processors, they can accommodate as many human-equivalent minds as a civilization with a planet hosting ten billion humans in orbit around every star in the galaxy. + +_1 A more mature version of Amber lives down in the surging chaos of near-Jupiter space; there's an instance of Pierre, too, although he has relocated light-hours away, near Neptune. Whether she still sometimes thinks of her relativistic twin, nobody can tell. In a way, it doesn't matter, because by the time the /{Field Circus}/ returns to Jupiter orbit, as much subjective time will have elapsed for the fast-thinkers back home as will flash by in the real universe between this moment and the end of the era of star formation, many billions of years hence. + +* * * + +"As your theologian, I am telling you that they are not gods." + +Amber nods patiently. She watches Sadeq closely. + +Sadeq coughs grumpily. "Tell her, Boris." + +Boris tilts his chair back and turns it toward the Queen. "He is right, Amber. They are traders, and not clever ones either. Is hard to get handle on their semiotics while they hide behind the lobster model we uploaded in their direction twenty years ago, but are certainly not crusties, and are definite not human either. Or transhuman. My guess, they are bunch of dumb hicks who get hands on toys left behind by much smarter guys. Like the rejectionist factions back home. Imagine they are waking up one morning and find everyone else is gone to the great upload environment in the sky. Leaving them with the planet to themselves. What you think they do with whole world, with any gadgets they trip over? Some will smash everything they come across, but others not so stupid. But they think /{small}/. Scavengers, deconstructionists. Their whole economic outlook are negative-sum game. Go visit aliens to rip them off, take ideas, not expand selves and transcend." + +Amber stands up, walks toward the windows at the front of the bridge. In black jeans and chunky sweater, she barely resembles the feudal queen whose role she plays for tourists. "Taking them on board was a big risk. I'm not happy about it." + +"How many angels can dance on the head of a pin?" Sadeq smiles crookedly. "We have an answer. But they may not even realize they are dancing with us. These are not the gods you were afraid of finding." + +"No." Amber sighs. "Not too different from us, though. I mean, we aren't exactly well adapted to this environment, are we? We tote these body-images along, rely on fake realities that we can map into our human-style senses. We're emulations, not native AIs. Where's Su Ang?" + +"I can find her." Boris frowns. + +"I asked her to analyse the alien's arrival times," Amber adds as an afterthought. "They're close - too close. And they showed up too damn fast when we first tickled the router. I think Aineko's theories are flawed. The /{real}/ owners of this network we've plugged into probably use much higher-level protocols to communicate; sapient packets to build effective communications gateways. This Wunch, they probably lurk in wait for newbies to exploit. Pedophiles hiding outside the school gate. I don't want to give them that opportunity before we make contact with the real thing!" + +"You may have little choice," says Sadeq. "If they are without insight, as you suspect, they may become afraid if you edit their environment. They may lash out. I doubt they even understand how they created the contaminated metagrammar that they transmitted back to us. It will be to them just a tool that makes simpleminded aliens more gullible, easier to negotiate with. Who knows where they got it?" + +"A grammatical weapon." Boris spins himself round slowly. "Build propaganda into your translation software if you want to establish a favorable trading relationship. How cute. Haven't these guys ever heard of Newspeak?" + +"Probably not," Amber says slowly, pausing for a moment to spawn spectator threads to run down the book and all three movie versions of Nineteen Eighty-Four, followed by the sharecropped series of sequel novels. She shivers uncomfortably as she re-integrates the memories. "Ick. That's not a very nice vision. Reminds me of" - she snaps her fingers, trying to remember Dad's favorite - "Dilbert." + +"Friendly fascism," says Sadeq. "It matters not, whosoever is in charge. I could tell you tales from my parents, of growing up with a revolution. To never harbor self-doubt is poison for the soul, and these aliens want to inflict their certainties upon us." + +"I think we ought to see how Pierre is doing," Amber says aloud. "I certainly don't want them poisoning him." Grin: "That's /{my job}/." + +* * * + +Donna the Journalist is everywhere simultaneously. It's a handy talent: Makes for even-handed news coverage when you can interview both sides at the same time. + +Right now, one of her is in the bar with Alan Glashwiecz, who evidently hasn't realized that he can modulate his ethanol dehydrogenase levels voluntarily and who is consequently well on the way to getting steaming drunk. Donna is assisting the process: She finds it fascinating to watch this bitter young man who has lost his youth to a runaway self-enhancement process. + +"I'm a full partner," he says bitterly, "in Glashwiecz and Selves. I'm one of the Selves. We're all partners, but it's only Glashwiecz Prime who has any clout. The old bastard - if I'd known I'd grow up to become /{that}/, I'd have run away to join some hippie antiglobalist commune instead." He drains his glass, demonstrating his oropharyngeal integrity, snaps his fingers for a refill. "I just woke up one morning to find I'd been resurrected by my older self. He said he valued my youthful energy and optimistic outlook, then offered me a minority stake with stock options that would take five years to vest. The bastard." + +"Tell me about it," Donna coaxes sympathetically. "Here we are, stranded among idiopathic types, not among them a single multiplex -" + +"Damn straight." Another bottle of Bud appears in Glashwiecz'a hands. "One moment I'm standing in this apartment in Paris facing total humiliation by a cross-dressing commie asshole called Macx and his slimy French manager bitch, and the next I'm on the carpet in front of my alter ego's desk and he's offering me a job as junior partner. It's seventeen years later, all the weird nonsense that guy Macx was getting up to is standard business practice, and there's six of me in the outer office taking research notes because myself-as-senior-partner doesn't trust anyone else to work with him. It's humiliating, that's what it is." + +"Which is why you're here." Donna waits while he takes a deep swig from the bottle. + +"Yeah. Better than working for myself, I can tell you - it's not like being self-employed. You know how you sometimes get distant from your work? It's really bad when you see yourself from the outside with another half gigasecond of experience and the new-you isn't just distant from the client base, he's distant from the you-you. So I went back to college and crammed up on artificial intelligence law and ethics, the jurisprudence of uploading, and recursive tort. Then I volunteered to come out here. He's still handling /{her}/ account, and I figured -" Glashwiecz shrugged. + +"Did any of the delta-yous contest the arrangement?" asks Donna, spawning ghosts to focus in on him from all angles. For a moment, she wonders if this is wise. Glashwiecz is dangerous - the power he wields over Amber's mother, to twist her arm into extending his power of attorney, hints at dark secrets. Maybe there's more to her persistent lawsuits than a simple family feud? + +Glashwiecz's face is a study in perspectives. "Oh, one did," he says dismissively: One of Donna's viewports captures the contemptuous twitch in his cheek. "I left her in my apartment freezer. Figured it'd be a while before anybody noticed. It's not murder - I'm still here, right? - and I'm not about to claim tort against myself. I think. It'd be a left-recursive lawsuit, anyway, if I did it to myself." + +"The aliens," prompts Donna, "and the trial by combat. What's your take on that?" + +Glashwiecz sneers. "Little bitch-queen takes after her father, doesn't she? He's a bastard, too. The competitive selection filter she's imposed is evil - it'll cripple her society if she leaves it in place for too long, but in the short run, it's a major advantage. So she wants me to trade for my life, and I don't get to lay my formal claim against her unless I can outperform her pet day trader, that punk from Marseilles. Yes? What he doesn't know is, I've got an edge. Full disclosure." He lifts his bottle drunkenly. "Y'see, I know that /{cat}/. One that's gotta brown @-sign on its side, right? It used to belong to queenie-darling's old man, Manfred, the bastard. You'll see. Her Mom, Pamela, Manfred's ex, she's my client in this case. And she gave me the cat's ackle keys. Access control." (Hic.) "Get ahold of its brains and grab that damn translation layer it stole from the CETI@home mob. /{Then}/ I can talk to them straight." + +The drunken, future-shocked lawyer is on a roll. "I'll get their shit, and I'll disassemble it. Disassembly is the future of industry, y'know?" + +"Disassembly?" asks the reporter, watching him in disgusted fascination from behind her mask of objectivity. + +"Hell, yeah. There's a singularity going on, that implies disequilibrium. An' wherever there's a disequilibrium, someone is going to get /{rich}/ disassembling the leftovers. Listen, I once knew this econo-economist, that's what he was. Worked for the Eurofeds, rubber fetishist. He tole me about this fact'ry near Barcelona. It had a disassembly line running in it. Spensive servers in boxes'd roll in at one end. Be unpacked. Then workers'd take the cases off, strip the disk drives, memory, processors, bits'n'guts out. Bag and tag job. Throw the box, what's left, 'cause it wasn't worth dick. Thing is, the manufact'rer charged so much for parts, it was worth their while to buy whole machines'n'strip them. To bits. And sell the bits. Hell, they got an enterprise award for ingenuity! All 'cause they knew that /{disassembly}/ was the wave of the future." + +"What happened to the factory?" asks Donna, unable to tear her eyes away. + +Glashwiecz waves an empty bottle at the starbow that stretches across the ceiling: "Ah, who gives a fuck? They closedown round about" (hic) "ten years 'go. Moore's Law topped out, killed the market. But disassembly - production line cannibalism - it'sa way to go. Take old assets an' bring new life to them. A fully 'preciated fortune." He grins, eyes unfocussed with greed. "'S'what I'm gonna do to those space lobsters. Learn to talk their language an'll never know what hit 'em." + +* * * + +The tiny starship drifts in high orbit above a turbid brown soup of atmosphere. Deep in the gravity well of Hyundai ^{+4904}^/,{-56},, it's a speck of dust trapped between two light sources: the brilliant sapphire stare of Amber's propulsion lasers in Jovian orbit, and the emerald insanity of the router itself, a hypertoroid spun from strange matter. + +The bridge of the /{Field Circus}/ is in constant use at this time, a meeting ground for minds with access to the restricted areas. Pierre is spending more and more time here, finding it a convenient place to focus his trading campaign and arbitrage macros. At the same time that Donna is picking the multiplexed lawyer's strategy apart, Pierre is present in neomorphic form - a quicksilver outline of humanity, six-armed and two-headed, scanning with inhuman speed through tensor maps of the information traffic density surrounding the router's clump of naked singularities. + +There's a flicker in the emptiness at the rear of the bridge, then Su Ang has always been there. She watches Pierre in contemplative silence for a minute. "Do you have a moment?" + +Pierre superimposes himself: One shadowy ghost keeps focused on the front panel, but another instance turns round, crosses his arms, waits for her to speak. + +"I know you're busy -" she begins, then stops. "Is it /{that}/ important?" she asks. + +"It is." Pierre blurs, resynchronizing his instances. "The router - there are four wormholes leading off from it, did you know that? Each of them is radiating at about 1011 Kelvins, and every wavelength is carrying data connections, multiplexed, with a protocol stack that's at least eleven layers deep but maybe more - they show signs of self-similarity in the framing headers. You know how much data that is? It's about 1012 times as much as our high-bandwidth uplink from home. But compared to what's on the other side of the 'holes -" he shakes his head. + +"It's big?" + +"It's unimaginably big! These wormholes, they're a /{low-bandwidth}/ link compared to the minds they're hooking up to." He blurs in front of her, unable to stay still and unable to look away from the front panel. Excitement or agitation? Su Ang can't tell. With Pierre, sometimes the two states are indistinguishable. He gets emotional easily. "I think we have the outline of the answer to the Fermi paradox. Transcendents don't go traveling because they can't get enough bandwidth - trying to migrate through one of these wormholes would be like trying to download your mind into a fruit fly, if they are what I think they are - and the slower-than-light route is out, too, because they couldn't take enough computronium along. Unless -" + +He's off again. But before he can blur out, Su Ang steps across and lays hands on him. "Pierre. Calm down. Disengage. Empty yourself." + +"I can't!" He really /{is}/ agitated, she sees. "I've got to figure out the best trading strategy to get Amber off the hook with that lawsuit, then tell her to get us out of here; being this close to the router is seriously dangerous! The Wunch are the least of it." + +"Stop." + +He pauses his multiplicity of presences, converges on a single identity focused on the here and now. "Yes?" + +"That's better." She walks round him, slowly. "You've got to learn to deal with stress more appropriately." + +"Stress!" Pierre snorts. He shrugs, an impressive gesture with three sets of shoulder blades. "That's something I can turn off whenever I need to. Side effect of this existence; we're pigs in cyberspace, wallowing in fleshy simulations, but unable to experience the new environment in the raw. What did you want from me, Ang? Honestly? I'm a busy man, I've got a trading network to set up." + +"We've got a problem with the Wunch right now, even if you think something worse is out there," Ang says patiently. "Boris thinks they're parasites, negative-sum gamers who stalk newbies like us. Glashwiecz is apparently talking about cutting a deal with them. Amber's suggestion is that you ignore them completely, cut them out, and talk to anyone else who'll listen." + +"Anyone else who'll listen, right," Pierre says heavily. "Any other gems of wisdom to pass on from the throne?" + +Ang takes a deep breath. He's infuriating, she realizes. And worst of all, he doesn't realize. Infuriating but cute. "You're setting up a trading network, yes?" she asks. + +"Yes. A standard network of independent companies, instantiated as cellular automata within the Ring Imperium switched legal service environment." He relaxes slightly. "Each one has access to a compartmentalized chunk of intellectual property and can call on the corrected parser we got from that cat. They're set up to communicate with a blackboard system - a souk - and I'm bringing up a link to the router, a multicast link that'll broadcast the souk's existence to anyone who's listening. Trade ..." his eyebrows furrow. "There are at least two different currency standards in this network, used to buy quality-of-service precedence and bandwidth. They depreciate with distance, as if the whole concept of money was invented to promote the development of long-range network links. If I can get in first, when Glashwiecz tries to cut in on the dealing by offering IP at discounted rates -" + +"He's not going to, Pierre," she says as gently as possible. "Listen to what I said: Glashwiecz is going to focus on the Wunch. He's going to offer them a deal. Amber wants you to /{ignore}/ them. Got that?" + +"Got it." There's a hollow /{bong!}/ from one of the communication bells. "Hey, that's interesting." + +"What is?" She stretches, neck extending snakelike so that she can see the window on underlying reality that's flickered into existence in the air before him. + +"An ack from ..." he pauses, then plucks a neatly reified concept from the screen in front of him and presents it to her in a silvery caul of light. "... about two hundred light-years away! Someone wants to talk." He smiles. Then the front panel workstation bong's again. "Hey again. I wonder what that says." + +It's the work of a moment to pipe the second message through the translator. Oddly, it doesn't translate at first. Pierre has to correct for some weird destructive interference in the fake lobster network before it'll spill its guts. "That's interesting," he says. + +"I'll say." Ang lets her neck collapse back to normal. "I'd better go tell Amber." + +"You do that," Pierre says worriedly. He makes eye contact with her, but what she's hoping to see in his face just isn't there. He's wearing his emotions entirely on the surface. "I'm not surprised their translator didn't want to pass that message along." + +"It's a deliberately corrupted grammar," Ang murmurs, and bangs out in the direction of Amber's audience chamber; "and they're actually making threats." The Wunch, it seems, have acquired a /{very}/ bad reputation somewhere along the line - and Amber needs to know. + +* * * + +Glashwiecz leans toward Lobster Number One, stomach churning. It's only a real-time kilosecond since his bar-room interview, but in the intervening subjective time, he's abolished a hangover, honed his brief, and decided to act. In the Tuileries. "You've been lied to," he confides quietly, trusting the privacy ackles that he browbeat Amber's mother into giving him - access lists that give him a degree of control over the regime within this virtual universe that the cat dragged in. + +"Lied? Context rendered horizontal in past, or subjected to grammatical corruption? Linguistic evil?" + +"The latter." Glashwiecz enjoys this, even though it forces him to get rather closer to the two-meter-long virtual crustacean than he'd like. Showing a mark how they've been scammed is always good, especially when you hold the keys to the door of the cage they're locked inside. "They are not telling you the truth about this system." + +"We received assurances," Lobster Number One says clearly. Its mouthparts move ceaselessly - the noise comes from somewhere inside its head. "You do not share this phenotype. Why?" + +"That information will cost you," says Glashwiecz. "I am willing to provide it on credit." + +They haggle briefly. An exchange rate in questions is agreed, as is a trust metric to grade the answers by. "Disclose all," insists the Wunch negotiator. + +"There are multiple sentient species on the world we come from," says the lawyer. "The form you wear belongs to only one - one that wanted to get away from the form /{I}/ wear, the original conscious tool-creating species. Some of the species today are artificial, but all of us trade information for self-advantage." + +"This is good to know," the lobster assures him. "We like to buy species." + +"You buy species?" Glashwiecz cocks his head. + +"We have the unbearable yearning to be not-what-we-are," says the lobster. "Novelty, surprise! Flesh rots and wood decays. We seek the new being-ness of aliens. Give us your somatotype, give us all your thoughts, and we will dream you over." + +"I think something might be arranged," Glashwiecz concedes. "So you want to be - no, to lease the rights to temporarily be human? Why is that?" + +"Untranslatable concept #3 means untranslatable concept #4. God told us to." + +"Okay, I think I'll just have to take that on trust for now. What is your true form?" he asks. + +"Wait and I show you," says the lobster. It begins to shudder. + +"What are you doing -" + +"Wait." The lobster twitches, writhing slightly, like a portly businessman adjusting his underwear after a heavy business lunch. Disturbing shapes move, barely visible through the thick chitinous armor. "We want your help," the lobster explains, voice curiously muffled. "Want to establish direct trade links. Physical emissaries, yes?" + +"Yes, that's very good," Glashwiecz agrees excitedly: It's exactly what he's hoped for, the sought-after competitive advantage that will prove his fitness in Amber's designated trial by corporate combat. "You're going to deal with us directly without using that shell interface?" + +"Agreed." The lobster trails off into muffled silence; little crunching noises trickle out of its carapace. Then Glashwiecz hears footsteps behind him on the gravel path. + +"What are you doing here?" he demands, looking round. It's Pierre, back in standard human form - a sword hangs from his belt, and there's a big wheel-lock pistol in his hands. "Hey!" + +"Step away from the alien, lawyer," Pierre warns, raising the gun. + +Glashwiecz glances back at Lobster Number One. It's pulled its front inside the protective shell, and it's writhing now, rocking from side to side alarmingly. Something inside the shell is turning black, acquiring depth and texture. "I stand on counsel's privilege," Glashwiecz insists. "Speaking as this alien's attorney, I must protest in the strongest terms -" + +Without warning, the lobster lurches forward and rises up on its rear legs. It reaches out with huge claws, chellipeds coated with spiny hairs, and grabs Glashwiecz by his arms. "Hey!" + +Glashwiecz tries to turn away, but the lobster is already looming over him, maxillipeds and maxillae reaching out from its head. There's a sickening crunch as one of his elbow joints crumbles, humerus shattered by the closing jaws of a chelliped. He draws breath to scream, then the four small maxillae grip his head and draw it down toward the churning mandibles. + +Pierre scurries sideways, trying to find a line of fire on the lobster that doesn't pass through the lawyer's body. The lobster isn't cooperating. It turns on the spot, clutching Glashwiecz's convulsing body to itself. There's a stench of shit, and blood is squirting from its mouthparts. Something is very wrong with the biophysics model here, the realism turned up way higher than normal. + +"Merde," whispers Pierre. He fumbles with the bulky trigger, and there's a faint whirring sound but no explosion. + +More wet crunching sounds follow as the lobster demolishes the lawyer's face and swallows convulsively, sucking his head and shoulders all the way into its gastric mill. + +Pierre glances at the heavy handgun. "/{Shit}/!" he screams. He glances back at the lobster, then turns and runs for the nearest wall. There are other lobsters loose in the formal garden. "/{Amber, emergency!}/" he sends over their private channel. "/{Hostiles in the Louvre!}/" + +The lobster that's taken Glashwiecz hunkers down over the body and quivers. Pierre desperately winds the spring on his gun, too rattled to check that it's loaded. He glances back at the alien intruder. /{They've sprung the biophysics model}/, he sends. /{I could die in here}/, he realizes, momentarily shocked. /{This instance of me could die forever}/. + +The lobster shell sitting in the pool of blood and human wreckage splits in two. A humanoid form begins to uncurl from within it, pale-skinned and glistening wet: vacant blue eyes flicker from side to side as it stretches and stands upright, wobbling uncertainty on its two unstable legs. Its mouth opens and a strange gobbling hiss comes forth. + +Pierre recognizes her. "What are you doing here?" he yells. + +The nude woman turns toward him. She's the spitting image of Amber's mother, except for the chellipeds she has in place of hands. She hisses "/{Equity!}/" and takes a wobbly step toward him, pincers clacking. + +Pierre winds the firing handle again. There's a crash of gunpowder and smoke, a blow that nearly sprains his elbow, and the nude woman's chest erupts in a spray of blood. She snarls at him wordlessly and staggers - then ragged flaps of bloody meat close together, knitting shut with improbable speed. She resumes her advance. + +"I told Amber the Matrix would be more defensible," Pierre snarls, dropping the firearm and drawing his sword as the alien turns in his direction and raises arms that end in pincers. "We need guns, damit! Lots of guns!" + +"Waaant equity," hisses the alien intruder. + +"You /{can't}/ be Pamela Macx," says Pierre, his back to the wall, keeping the sword point before the lobster-woman-thing. "She's in a nunnery in Armenia or something. You pulled that out of Glashwiecz's memories - he worked for her, didn't he?" + +Claws go snicker-snack before his face. "Investment partnership!" screeches the harridan. "Seat on the board! Eat brains for breakfast!" It lurches sideways, trying to get past his guard. + +"I don't fucking /{believe}/ this," Pierre snarls. The Wunch-creature jumps at just the wrong moment and slides onto the point of his blade, claws clacking hungrily. Pierre slides away, nearly leaving his skin on the rough bricks of the wall - and what's good for one is good for all, as the hacked model in force in this reality compels the attacker to groan and collapse. + +Pierre pulls the sword out then, nervously glancing over his shoulder, whacks at her neck. The impact jars his arm, but he keeps hacking until there's blood spraying everywhere, blood on his shirt, blood on his sword, and a round thing sitting on a stump of savaged neck nearby, jaw working soundlessly in undeath. + +He looks at it for a moment, then his stomach rebels and tries to empty itself into the mess. "/{Where the hell is everybody}/?" he broadcasts on the private channel. "/{Hostiles in the Louvre!}/" + +He straightens up, gasping for breath. He feels /{alive}/, frightened and appalled and exhilarated simultaneously. The crackle of bursting shells on all sides drowns out the birdsong as the Wunch's emissaries adopt a variety of new and supposedly more lethal forms. "/{They don't seem to be very clear on how to take over a simulation space}/," he adds. "/{Maybe we already are}/ untranslatable concept number #1 as far as they're concerned." + +"/{Don't worry, I've cut off the incoming connection}/," sends Su Ang. "/{This is just a bridgehead force; the invasion packets are}/ being filtered out." + +Blank-eyed men and women in dusty black uniforms are hatching from the lobster shells, stumbling and running around the grounds of the royal palace like confused Huguenot invaders. + +Boris winks into reality behind Pierre. "Which way?" he demands, pulling out an anachronistic but lethal katana. + +"Over here. Let's work this together." Pierre jacks his emotional damper up to a dangerously high setting, suppressing natural aversion reflexes and temporarily turning himself into a sociopathic killer. He stalks toward an infant lobster-thing with big black eyes and a covering of white hair that mewls at him from a rose bed, and Boris looks away while he kills it. Then one of the larger ones makes the mistake of lunging at Boris, and he chops at it reflexively. + +Some of the Wunch try to fight back when Pierre and Boris try to kill them, but they're handicapped by their anatomy, a curious mixture of crustacean and human, claw and mandible against sword and dagger. When they bleed the ground soaks with the cuprous hue of lobster juice. + +"Let's fork," suggests Boris. "Get this over with." Pierre nods, dully - everything around him is wrapped in a layer of don't-care, except for a glowing dot of artificial hatred - and they fork, multiplying their state vectors to take full advantage of the virtualization facilities of this universe. There's no need for reinforcements; the Wunch focused on attacking the biophysics model of the universe, making it mimic a physical reality as closely as possible, and paid no attention to learning the more intricate tactics that war in a virtual space permits. + +Presently Pierre finds himself in the audience chamber, face and hands and clothing caked in hideous gore, leaning on the back of Amber's throne. There's only one of him now. One of Boris - the only one? - is standing near the doorway. He can barely remember what has happened, the horrors of parallel instances of mass murder blocked from his long-term memory by a high-pass trauma filter. "It looks clear," he calls aloud. "What shall we do now?" + +"Wait for Catherine de Médicis to show up," says the cat, its grin materializing before him like a numinous threat. "Amber /{always}/ finds a way to blame her mother. Or didn't you already know that?" + +Pierre glances at the bloody mess on the footpath outside where the first lobster-woman attacked Glashwiecz. "I already did for her, I think." He remembers the action in the third person, all subjectivity edited out. "The family resemblance was striking," the thread that still remembers her in working memory murmurs: "I just hope it's only skin-deep." Then he forgets the act of apparent murder forever. "Tell the Queen I'm ready to talk." + +* * * + +_1 Welcome to the downslope on the far side of the curve of accelerating progress. + +_1 Back in the solar system, Earth orbits through a dusty tunnel in space. Sunlight still reaches the birth world, but much of the rest of the star's output has been trapped by the growing concentric shells of computronium built from the wreckage of the innermost planets. + +_1 Two billion or so mostly unmodified humans scramble in the wreckage of the phase transition, not understanding why the vasty superculture they so resented has fallen quiet. Little information leaks through their fundamentalist firewalls, but what there is shows a disquieting picture of a society where there are no /{bodies}/ anymore. Utility foglets blown on the wind form aerogel towers larger than cyclones, removing the last traces of physical human civilization from most of Europe and the North American coastlines. Enclaves huddle behind their walls and wonder at the monsters and portents roaming the desert of postindustrial civilization, mistaking acceleration for collapse. + +_1 The hazy shells of computronium that ring the sun - concentric clouds of nanocomputers the size of rice grains, powered by sunlight, orbiting in shells like the packed layers of a Matrioshka doll - are still immature, holding barely a thousandth of the physical planetary mass of the system, but they already support a classical computational density of 1042 MIPS; enough to support a billion civilizations as complex as the one that existed immediately before the great disassembly. The conversion hasn't yet reached the gas giants, and some scant outer-system enclaves remain independent - Amber's Ring Imperium still exists as a separate entity, and will do so for some years to come - but the inner solar system planets, with the exception of Earth, have been colonized more thoroughly than any dusty NASA proposal from the dawn of the space age could have envisaged. + +_1 From outside the Accelerated civilization, it isn't really possible to know what's going on inside. The problem is bandwidth: While it's possible to send data in and get data out, the sheer amount of computation going on in the virtual spaces of the Acceleration dwarfs any external observer. Inside that swarm, minds a trillion or more times as complex as humanity think thoughts as far beyond human imagination as a microprocessor is beyond a nematode worm. A million random human civilizations flourish in worldscapes tucked in the corner of this world-mind. Death is abolished, life is triumphant. A thousand ideologies flower, human nature adapted where necessary to make this possible. Ecologies of thought are forming in a Cambrian explosion of ideas: For the solar system is finally rising to consciousness, and mind is no longer restricted to the mere kilotons of gray fatty meat harbored in fragile human skulls. + +_1 Somewhere in the Acceleration, colorless green ideas adrift in furious sleep remember a tiny starship launched years ago, and pay attention. Soon, they realize, the starship will be in position to act as their proxy in an ages-long conversation. Negotiations for access to Amber's extrasolar asset commence; the Ring Imperium prospers, at least for a while. + +_1 But first, the operating software on the human side of the network link will require an upgrade. + +* * * + +The audience chamber in the /{Field Circus}/ is crammed. Everybody aboard the ship - except the still-frozen lawyer and the alien barbarian intruders - is present. They've just finished reviewing the recordings of what happened in the Tuileries, of Glashwiecz's fatal last conversation with the Wunch, the resulting fight for survival. And now the time has come for decisions. + +"I'm not saying you have to follow me," says Amber, addressing her court; "just, it's what we came here for. We've established that there's enough bandwidth to transmit people and their necessary support VMs; we've got some basic expectancy of goodwill at the other end, or at least an agalmic willingness to gift us with advice about the untrustworthiness of the Wunch. /{I}/ propose to copy myself through and see what's at the other side of the wormhole. What's more, I'm going to suspend myself on this side and hand over to whichever instance of me comes back, unless there's a long hiatus. How long, I haven't decided yet. Are you guys happy to join me?" + +Pierre stands behind her throne, hands on the back. Looking down over her head, at the cat in her lap, he's sure he sees it narrow its eyes at him. /{Funny}/, he thinks, /{we're talking about jumping down a rabbit hole and trusting whoever lives at the other end with our personalities. After seeing the Wunch. Does this make sense}/? + +"Forgive, please, but am not stupid," says Boris. "This is Fermi paradox territory, no? Instantaneous network exists, is traversable, with bandwidth adequate for human-equivalent minds. Where are alien visitors, in history? Must be overriding reason for absence. Think will wait here and see what comes back. /{Then}/ make up mind to drink the poison kool-aid." + +"I've got half a mind to transmit myself through without a back-up," says someone else - "but that's okay; half a mind is all we've got the bandwidth for." Halfhearted laughter shores up his wisecrack, supports a flagging determination to press through. + +"I'm with Boris," says Su Ang. She glances at Pierre, catches his eye: Suddenly a number of things become clear to him. He shakes his head minutely. /{You never had a chance - I belong to Amber}/, he thinks, but deletes the thought before he can send it to her. Maybe in another instantiation his issues with the Queen's /{droit de seigneur}/ would have bulked up larger, splintered his determination; maybe in another world it has already happened? "I think this is very rash," she says in a hurry. "We don't know enough about post-singularity civilizations." + +"It's not a singularity," Amber says waspishly. "It's just a brief burst of acceleration. Like cosmological inflation." + +"Smooths out inhomogeneities in the initial structure of consciousness," purrs the cat. "Don't I get a vote?" + +"You do." Amber sighs. She glances round. "Pierre?" + +Heart in his mouth: "I'm with you." + +She smiles, brilliantly. "Well then. Will the nay sayers please leave the universe?" + +Suddenly, the audience chamber is half-empty. + +"I'm setting a watchdog timer for a billion seconds into the future, to restart us from this point if the router doesn't send anyone back in the intervening time," she announces gravely, taking in the serious-faced avatars of those who remain. Surprised: "Sadeq! I didn't think this was your type of -" + +He doesn't smile: "Would I be true to my faith if I wasn't prepared to bring the words of Mohammed, peace be unto him, to those who may never have heard his name?" + +Amber nods. "I guess." + +"Do it," Pierre says urgently. "You can't keep putting it off forever." + +Aineko raises her head: "Spoilsport!" + +"Okay." Amber nods. "Let's /{do}/ -" + +She punches an imaginary switch, and time stops. + +* * * + +At the far end of a wormhole, two hundred light-years distant in real space, coherent photons begin to dance a story of human identity before the sensoria of those who watch. And all is at peace in orbit around Hyundai ^[+4904}^/,{-56},, for a while ... + +* * * + +Chapter 6: Nightfall + +A synthetic gemstone the size of a Coke can falls through silent darkness. The night is quiet as the grave, colder than midwinter on Pluto. Gossamer sails as fine as soap bubbles droop, the gust of sapphire laser light that inflated them long since darkened. Ancient starlight picks out the outline of a huge planetlike body beneath the jewel-and-cobweb corpse of the starwisp. + +Eight Earth years have passed since the good ship /{Field Circus}/ slipped into close orbit around the frigid brown dwarf Hyundai ^{+4904}^/,{-56},. Five years have gone by since the launch lasers of the Ring Imperium shut down without warning, stranding the light-sail-powered craft three light-years from home. There has been no response from the router, the strange alien artifact in orbit around the brown dwarf, since the crew of the starwisp uploaded themselves through its strange quantum entanglement interface for transmission to whatever alien network it connects to. In fact, nothing happens; nothing save the slow trickle of seconds, as a watchdog timer counts down the moments remaining until it is due to resurrect stored snapshots of the crew, on the assumption that their uploaded copies are beyond help. + +Meanwhile, outside the light cone - + +* * * + +Amber jolts into wakefulness, as if from a nightmare. She sits bolt upright, a thin sheet falling from her chest; air circulating around her back chills her rapidly, cold sweat evaporating. She mutters aloud, unable to subvocalize, "Where am I - oh. A bedroom. How did I get here?" /{Mumble}/. "Oh, I see." Her eyes widen in horror. "/{It's not a dream}/ ..." + +"Greetings, human Amber," says a ghost-voice that seems to come from nowhere: "I see you are awake. Would you like anything?" + +Amber rubs her eyes tiredly. Leaning against the bedstead, she glances around cautiously. She takes in a bedside mirror, her reflection in it: a young woman, gaunt in the manner of those whose genome bears the p53 calorie-restriction hack, she has disheveled blonde hair and dark eyes. She could pass for a dancer or a soldier; not, perhaps, a queen. "What's going on? Where am I? Who are you, and /{what am I doing in your head?}/" + +Her eyes narrow. Analytical intellect comes to the fore as she takes stock of her surroundings. "The router," she mutters. Structures of strange matter orbit a brown dwarf scant light-years from Earth. "How long ago did we come through?" Glancing round, she sees a room walled in slabs of close-fitting stone. A window bay is recessed into them, after the style of the Crusader castles many centuries in the past, but there's no glass in it - just a blank white screen. The only furniture in the room, besides a Persian carpet on the cold flagstones, is the bed she sits upon. She's reminded of a scene from an old movie, Kubrick's enigma; this whole set-up has got to be deliberate, and it isn't funny. + +"I'm waiting," she announces, and leans back against the headboard. + +"According to our records this reaction indicates that you are now fully self-aware," says the ghost. "This is good. You have not been conscious for a very long time. Explanations will be complex and discursive. Can I offer you refreshments? What would you like?" + +"Coffee, if you have it. Bread and hummus. Something to wear." Amber crosses her arms, abruptly self-conscious. "I'd prefer to have management ackles to this universe, though. As realities go, it's a bit lacking in creature comforts." Which isn't entirely true - it seems to have a comprehensive, human-friendly biophysics model, it's not just a jumped-up first-person shooter. Her eyes focus on her left forearm, where tanned skin and a puckered dime of scar tissue record a youthful accident with a pressure seal in Jovian orbit. Amber freezes for a moment. Her lips move in silence, but she's locked into place in this universe, unable to split or conjoin nested realities just by calling subroutines that have been spliced into the corners of her mind since she was a teenager. Finally, she asks, "How long have I been dead?" + +"Longer than you were alive, by orders of magnitude," says the ghost. A tray laden with pita breads, hummus, and olives congeals from the air above her bed, and a wardrobe appears at one side of the room. "I can begin the explanation now or wait for you to finish eating. Which would you prefer?" + +Amber glances about again, then fixes on the white screen in the window bay. "Give it to me right now. I can take it," she says, quietly bitter. "I like to understand my mistakes as soon as possible." + +"We-us can tell that you are a human of determination," says the ghost, a hint of pride entering its voice. "That is a good thing, Amber. You will need all of your resolve if you are going to survive here ..." + +* * * + +It is the time of repentance in a temple beside a tower that looms above a dry plain, and the thoughts of the priest who lives in the tower are tinged with regret. It is Ashura, the tenth day of Muhurram, according to a real-time clock still tuned to the pace of a different era: the one thousand, three hundred and fortieth anniversary of the martyrdom of the Third Imam, the Sayyid ash-Shuhada. + +The priest of the tower has spent an indefinite time in prayer, locked in an eternal moment of meditation and recitation. Now, as the vast red sun drifts close to the horizon of the infinite desert, his thoughts drift toward the present. Ashura is a very special day, a day of atonement for collective guilt, evil committed through inactivity; but it is in Sadeq's nature to look outwards toward the future. This is, he knows, a failing - but also characteristic of his generation. That's the generation of the Shi'ite clergy that reacted to the excesses of the previous century, the generation that withdrew the /{ulama}/ from temporal power, retreated from the velyat i-faqih of Khomenei and his successors, left government to the people, and began to engage fully with the paradoxes of modernity. Sadeq's focus, his driving obsession in theology, is a program of reappraisal of eschatology and cosmology. Here in a tower of white sun-baked clay, on an endless plain that exists only in the imaginary spaces of a starship the size of a soft drink can, the priest spends his processor cycles in contemplation of one of the most vicious problems ever to confront a /{mujtahid}/ - the Fermi paradox. + +(Enrico Fermi was eating his lunch one day, and his colleagues were discussing the possibility that sophisticated civilizations might populate other worlds. "Yes," he said, "but if this is so, why haven't they already come visiting?") + +Sadeq finishes his evening devotions in near silence, then stands, stretches as is his wont, and leaves the small and lonely courtyard at the base of the tower. The gate - a wrought-iron gate, warmed by sunlight - squeals slightly as he opens it. Glancing at the upper hinge, he frowns, willing it clean and whole. The underlying physics model acknowledges his access controls: a thin rim of red around the pin turns silvery-fresh, and the squeaking ceases. Closing the gate behind him, Sadeq enters the tower. + +He climbs with a heavy, even tread a spiral staircase snaking ever upward above him. Narrow slit-windows line the outer wall of the staircase. Through each of them he sees a different world. Out there, nightfall in the month of Ramadan. And through the next, green misty skies and a horizon too close by far. Sadeq carefully avoids thinking about the implications of this manifold space. Coming from prayer, from a sense of the sacred, he doesn't want to lose his proximity to his faith. He's far enough from home as it is, and there is much to consider. He is surrounded by strange and curious ideas, all but lost in a corrosive desert of faith. + +At the top of the staircase, Sadeq comes to a door of aged wood bound in iron. It doesn't belong here: It's a cultural and architectural anomaly. The handle is a loop of black metal. Sadeq regards it as if it's the head of an asp, poised to sting. Nevertheless, he reaches out and turns the handle, steps across the threshold into a palace out of fantasy. + +/{None of this is real}/, he reminds himself. /{It's no more real than an illusion conjured by one of the jinni of the thousand nights and one night}/. Nevertheless, he can't save himself from smiling at the scene - a sardonic smile of self-deprecating humor, tempered by frustration. + +Sadeq's captors have stolen his soul and locked it - him - in a very strange prison, a temple with a tower that rises all the way to Paradise. It's the whole classical litany of medievalist desires, distilled from fifteen hundred years of literature. Colonnaded courtyards, cool pools lined with rich mosaics, rooms filled with every imaginable dumb matter luxury, endless banquets awaiting his appetite - and dozens of beautiful un-women, eager to fulfill his every fantasy. Sadeq, being human, has fantasies by the dozen, but he doesn't dare permit himself to succumb to temptation. /{I'm not dead}/, he reasons. /{Therefore, how can I be in Paradise? Therefore, this must be a false paradise, a temptation sent to lead me astray. Probably. Unless I am dead, because Allah, peace be unto him, considers a human soul separated from its body to be dead. But if that's so, isn't uploading a sin? In which case, this can't be}/ Paradise because I am a sinner. /{Besides which}/, this whole setup is /{so}/ puerile! + +Sadeq has always been inclined to philosophical inquiry, and his vision of the afterlife is more cerebral than most, involving ideas as questionable within the framework of Islam as those of Teilhard de Chardin were to the twentieth-century Catholic church. If there's one key indicator of a false paradise in his eschatology, it's two-and-seventy brainlessly beautiful houris waiting to do his bidding. So it follows that he can't really be dead ... + +The whole question of reality is so vexing that Sadeq does what he does every night. He strides heedlessly across priceless works of art, barging hastily through courtyards and passageways, ignoring niches in which nearly naked supermodels lie with their legs apart, climbing stairs - until he comes to a small unfurnished room with a single high window in one wall. There he sits on the floor, legs crossed, meditating; not in prayer, but in a more tightly focused ratiocination. Every false night (for there is no way to know how fast time is passing, outside this cyberspace pocket), Sadeq sits and /{thinks}/, grappling with Descartes's demon in the solitude of his own mind. And the question he asks himself every night is the same: /{Can I tell if this is the true hell? And if it is not, how can I escape?}/ + +* * * + +The ghost tells Amber that she has been dead for just under a third of a million years. She has been reinstantiated from storage - and has died again - many times in the intervening period, but she has no memory of this; she is a fork from the main bough, and the other branches expired in lonely isolation. + +The business of resurrection does not, in and of itself, distress Amber unduly. Born in the post-Moravec era, she merely finds some aspects of the ghost's description dissatisfyingly incomplete. It's like saying she was drugged and brought hither without stating whether by plane, train, or automobile. + +She doesn't have a problem with the ghost's assertion that she is nowhere near Earth - indeed, that she is approximately eighty thousand light-years away. When she and the others took the risk of uploading themselves through the router they found in orbit around Hyundai ^{+4904}^/,{-56}, they'd understood that they could end up anywhere or nowhere. But the idea that she's still within the light cone of her departure strikes her as dubious. The original SETI broadcast strongly implied that the router is part of a network of self-replicating instantaneous communicators, spawning and spreading between the cold brown dwarf stars that litter the galaxy. She'd somehow expected to be much farther from home by now. + +Somewhat more disturbing is the ghost's assertion that the human genotype has rendered itself extinct at least twice, that its home planet is unknown, and that Amber is nearly the only human left in the public archives. At this point, she interrupts. "I hardly see what this has to do with me!" Then she blows across her coffee glass, trying to cool the contents. "I'm dead," she explains, with an undertone of knowing sarcasm in her voice. "Remember? I just got here. A thousand seconds ago, subjective time, I was in the control node of a starship, discussing what to do with the router we were in orbit around. We agreed to send ourselves through it, as a trade mission. Then I woke up in bed here in the umpty-zillionth century, wherever and whatever /{here}/ is. Without access to any reality ackles or augmentation, I can't even tell whether this is real or an embedded simulation. You're going to have to explain /{why}/ you need an old version of me before I can make sense of my situation - and I can tell you, I'm not going to help you until I know who you are. And speaking of that, what about the others? Where are they? I wasn't the only one, you know?" + +The ghost freezes in place for a moment, and Amber feels a watery rush of terror: /{Have I gone too far}/? she wonders. + +"There has been an unfortunate accident," the ghost announces portentously. It morphs from a translucent copy of Amber's own body into the outline of a human skeleton, elaborate bony extensions simulating an osteosarcoma of more-than-lethal proportions. "Consensus-we believe that you are best positioned to remediate the situation. This applies within the demilitarized zone." + +"Demilitarized?" Amber shakes her head, pauses to sip her coffee. "What do you mean? What /{is}/ this place?" + +The ghost flickers again, adopting an abstract rotating hypercube as its avatar. "This space we occupy is a manifold adjacent to the demilitarized zone. The demilitarized zone is a space outside our core reality, itself exposed to entities that cross freely through our firewall, journeying to and from the network outside. We-us use the DMZ to establish the informational value of migrant entities, sapient currency units and the like. We-us banked you upon arrival against future options trades in human species futures." + +"Currency!" Amber doesn't know whether to be amused or horrified - both reactions seem appropriate. "Is that how you treat all your visitors?" + +The ghost ignores her question. "There is a runaway semiotic excursion under way in the zone. We-us believe only you can fix it. If you agree to do, so we will exchange value, pay, reward cooperation, expedite remuneration, manumit, repatriate." + +Amber drains her coffee cup. "Have you ever entered into economic interactions with me, or humans like me, before?" she asks. "If not, why should I trust you? If so, why have you revived me? Are there any more experienced instances of myself running around here?" She raises a skeptical eyebrow at the ghost. "This looks like the start of an abusive relationship." + +The ghost continues to sidestep her attempts to work out where she stands. It flickers into transparency, grows into a hazy window on a landscape of impossible shapes. Clouds sprouting trees drift above a landscape of green, egg-curved hills and cheesecake castles. "Nature of excursion: alien intelligence is loose in the DMZ," it asserts. "Alien is applying invalid semiotics to complex structures designed to sustain trade. You know this alien, Amber. We require solution. Slay the monster, we will give you line of credit. Your own reality to control, insight into trade arrangements, augmented senses, ability to travel. Can even upgrade you to you-we consensus, if desired." + +"This monster." Amber leans forward, staring into the window eagerly. She's half-minded to ignore what she feels is a spurious offer; it doesn't sound too appetizing. /{Upgrade me to a ghost fragment of an alien group mind?}/ she wonders dismissively. "What is this alien?" She feels blind and unsure, stripped of her ability to spawn threads of herself to pursue complex inferences. "Is it part of the Wunch?" + +"Datum unknown. It-them came with you," says the ghost. "Accidentally reactivated some seconds since now. It runs amok in the demilitarized zone. Help us, Amber. Save our hub, or we will be cut off from the network. If that happens, you will die with we-us. Save us ..." + +* * * + +_1 A single memory belonging to someone else unwinds, faster than a guided missile and far more deadly. + +_1 Amber, aged eleven, is a gawky, long-limbed child loose on the streets of Hong Kong, a yokel tourist viewing the hot core of the Middle Kingdom. This is her first and final vacation before the Franklin Trust straps her inside the payload pod of a Shenzhou spaceplane and blasts her into orbit from Xinkiang. She's free for the time being, albeit mortgaged to the tune of several million euros; she's a little taikonaut to be, ready to work for the long years in Jupiter orbit it will take her to pay off the self-propelled options web that owns her. It's not exactly slavery: Thanks to Dad's corporate shell game she doesn't have to worry about Mom chasing her, trying to return her to the posthuman prison of growing up just like an old-fashioned little girl. And now she's got a bit of pocket money, and a room in the Hilton, and her own personal Franklin remote to keep her company, she's decided she's gonna do that eighteenth-century-enlightenment tourist shit and do it /{right}/. + +_1 Because this is her last day at liberty in the randomly evolved biosphere. + +_1 China is where things are at in this decade, hot and dense and full of draconian punishments for the obsolescent. Nationalist fervor to catch up with the west has been replaced by consumerist fervor to own the latest fad gadgets; the most picturesque tourist souvenirs from the quaintly old-fashioned streets of America; the fastest, hottest, smartest, upgrades for body and soul. Hong Kong is hotter and faster than just about anywhere else in China, or in the whole damn world for that matter. This is a place where tourists from Tokyo gawp, cowed and future-shocked by the glamour of high-technology living. + +_1 Walking along Jardine's Bazaar - /{More like Jardine's bizarre}/, she thinks - exposes Amber to a blast of humid noise. Geodesic domes sprout like skeletal mushrooms from the glass-and-chrome roofs of the expensive shopping malls and luxury hotels, threatening to float away on the hot sea breeze. There are no airliners roaring in and out of Kai Tak anymore, no burnished aluminum storm clouds to rain round-eyed passengers on the shopping malls and fish markets of Kowloon and the New Territories. In these tense later days of the War Against Unreason, impossible new shapes move in the sky; Amber gapes upward as a Shenyang F-30 climbs at a near-vertical angle, a mess of incomprehensibly curved flight surfaces vanishing to a perspective point that defies radar as well as eyeballs. The Chinese - fighter? missile platform? supercomputer? - is heading out over the South China Sea to join the endless patrol that reassures the capitalist world that it is being guarded from the Hosts of Denial, the Trouble out of Wa'hab. + +_1 For the moment, she's merely a precocious human child. Amber's subconscious is off-lined by the presence of forceful infowar daemons, the Chinese government censorbots suppressing her cognition of their deadliest weapons. And in the seconds while her mind is as empty as a sucked egg, a thin-faced man with blue hair shoves her in the small of her back and snatches at her shoulder bag. + +_1 "Hey!" she yells, stumbling. Her mind's a blur, optics refusing to respond and grab a biometric model of her assailant. It's the frozen moment, the dead zone when on-line coverage fails, and the thief is running away before she can catch her balance or try to give chase. Plus, with her extensions off-line she doesn't know how to yell "stop, thief!" in Cantonese. + +_1 Seconds later, the fighter is out of visual range and the state censorship field lets up. "Get him, you bastards!" she screams, but the curious shoppers simply stare at the rude foreign child: An elderly woman brandishes a disposable phonecam at her and screeches something back. Amber picks up her feet and runs. Already she can feel the subsonics from her luggage growling at her guts - it's going to make a scene if she doesn't catch up in time. Shoppers scatter, a woman with a baby carriage almost running her down in her panic to get away from it. + +_1 By the time Amber reaches her terrified shoulder bag, the thief has disappeared: She has to spend almost a minute petting the scared luggage before it stops screeching and retracts its spines enough for her to pick it up. And by that time there's a robocop in attendance. "Identify yourself," it rasps in synthetic English. + +_1 Amber stares at her bag in horror: There's a huge gash in the side, and it's far too light. /{It's gone}/, she thinks, despairingly. /{He stole it}/. "Help," she says faintly, holding up her bag for the distant policeman looking through the robot's eyes. "Been stolen." + +_1 "What item missing?" asks the robot. + +_1 "My Hello Kitty," she says, batting her eyelashes, mendacity full-on at maximum utilization, prodding her conscience into submission, warning of dire consequences should the police discover the true nature of her pet cat. "My kitten's been stolen! Can you help me?" + +_1 "Certainly," says the cop, resting a reassuring hand on her shoulder - a hand that turns into a steel armband, as it pushes her into a van and notifies her in formally stilted language that she is under arrest on suspicion of shoplifting and will be required to produce certificates of authenticity and a fully compliant ownership audit for all items in her possession if she wants to prove her innocence. + +_1 By the time Amber's meatbrain realizes that she is being politely arrested, some of her external threads have already started yelling for help and her m-commerce trackers have identified the station she's being taken to by way of click-thru trails and an obliging software license manager. They spawn agents to go notify the Franklin trustees, Amnesty International, the Space and Freedom Party, and her father's lawyers. As she's being booked into a cerise-and-turquoise juvenile offenders holding room by a middle-aged policewoman, the phones on the front desk are already ringing with inquiries from attorneys, fast-food vendors, and a particularly on-the-ball celebrity magazine that's been tracking her father's connections. "Can you help me get my cat back?" she asks the policewoman earnestly. + +_1 "Name," the officer reads, eyes flickering from the simultaneous translation. "To please wax your identity stiffly." + +_1 "My cat has been stolen," Amber insists. + +_1 "Your cat?" The cop looks perplexed, then exasperated. Dealing with foreign teenagers who answer questions with gibberish isn't in her repertoire. "We are asking your name?" + +_1 "No," says Amber. "It's my cat. It has been stolen. My /{cat}/ has been /{stolen}/." + +_1 "Aha! Your papers, please?" + +_1 "Papers?" Amber is growing increasingly worried. She can't feel the outside world; there's a Faraday cage wrapped around the holding cell, and it's claustrophobically quiet inside. "I want my cat! Now!" + +_1 The cop snaps her fingers, then reaches into her own pocket and produces an ID card, which she points to insistently. "Papers," she repeats. "Or else." + +_1 "I don't know what you're talking about!" Amber wails. + +_1 The cop stares at her oddly. "Wait." She rises and leaves, and a minute later, returns with a thin-faced man in a business suit and wire-rimmed glasses that glow faintly. + +_1 "You are making a scene," he says, rudely and abruptly. "What is your name? Tell me truthfully, or you'll spend the night here." + +_1 Amber bursts into tears. "My /{cat's}/ been stolen," she chokes out. + +_1 The detective and the cop obviously don't know how to deal with this scene; it's freaking them out, with its overtones of emotional messiness and sinister diplomatic entanglement. "You wait here," they say, and back out of the cell, leaving her alone with a plastic animatronic koala and a cheap Lebanese coffee machine. + +_1 The implications of her loss - of Aineko's abduction - are sinking in, finally, and Amber is weeping loudly and hopelessly. It's hard to deal with bereavement and betrayal at any age, and the cat has been her wisecracking companion and consolation for a year, the rock of certainty that gave her the strength to break free from her crazy mother. To lose her cat to a body shop in Hong Kong, where she will probably be cut up for spare circuitry or turned into soup is too horrible to contemplate. Filled with despair and hopeless anguish, Amber howls at the interrogation room walls while outside, trapped threads of her consciousness search for backups to synchronize with. + +_1 But after an hour, just as she's quieting down into a slough of raw despair, there's a knock - a knock! - at the door. An inquisitive head pops in. "Please to come with us?" It's the female cop with the bad translationware. She takes in Amber's sobbing and tuts under her breath, but as Amber stands up and shambles toward her, she pulls back. + +_1 At the front desk of a cubicle farm full of police bureaucrats in various states of telepresence, the detective is waiting with a damp cardboard box wrapped in twine. "Please identify," he asks, snipping the string. + +_1 Amber shakes her head, dizzy with the flow of threads homing in to synchronize their memories with her. "Is it -" she begins to ask as the lid comes apart, wet pulp disintegrating. A triangular head pops up, curiously, sniffing the air. Bubbles blow from brown-furred nostrils. "What took you so long?" asks the cat, as she reaches into the box and picks her up, fur wet and matted with seawater. + +* * * + +"If you want me to go fix your alien, for starters I want you to give me reality alteration privileges," says Amber. "Then I want you to find the latest instances of everyone who came here with me - round up the usual suspects - and give /{them}/ root privileges, too. Then we'll want access to the other embedded universes in the DMZ. Finally, I want guns. /{Lots}/ of guns." + +"That may be difficult," says the ghost. "Many other humans reached halting state long since. Is at least one other still alive, but not accessible for duration of eschatological experiment in progress. Not all were recorded with version control engine; others were-is lost in DMZ. We-are can provide you with extreme access to the demilitarized zone, but query the need for kinetic energy weapons." + +Amber sighs. "You guys really /{are}/ media illiterates, aren't you?" She stands up and stretches, feeling a facsimile of sleep's enervation leaching from her muscles. "I'll also need my -" it's on the tip of her tongue: There's something missing. "Hang on. There's something I've forgotten." /{Something important}/, she thinks, puzzled. /{Something that used to be around all the time that would ... know? ... purr? ... help?}/ "Never mind," she hears her lips say. "This other human. I /{really}/ want her. Non-negotiable. All right?" + +"That may be difficult," repeats the ghost. "Entity is looping in a recursively confined universe." + +"Eh?" Amber blinks at it. "Would you mind rephrasing that? Or illustrating?" + +"Illustration:" The ghost folds the air in the room into a glowing ball of plasma, shaped like a Klein bottle. Amber's eyes cross as she looks at it. "Closest reference from human historical database is Descartes's demon. This entity has retreated within a closed space, but is now unsure whether it is objectively real or not. In any event, it refuses to interact." + +"Well, can you get me into that space?" asks Amber. Pocket universes she can deal with; it's part and parcel of her life. "Give me some leverage -" + +"Risk may attach to this course of action," warns the ghost. + +"I don't care," she says irritably. "Just /{put}/ me there. It's someone I know, isn't it? Send me into her dream, and I'll wake her up, okay?" + +"Understood," says the ghost. "Prepare yourself." + +Without any warning, Amber is somewhere else. She glances around, taking in an ornate mosaic floor, whitewashed walls set with open windows through which stars twinkle faintly in the night sky. Her clothing has somehow been replaced by sexy lingerie under a nearly transparent robe, and her hair's grown longer by about half a meter. It's all very disorienting. The walls are stone, and she stands in a doorway to a room with nothing in it but a bed. Occupied by - + +"Shit," she exclaims. "Who are you?" The young and incredibly, classically beautiful woman in the bed looks at her vacantly, then rolls over on her side. She isn't wearing a stitch, she's completely hairless from the ears down, and her languid posture is one of invitation. "Yes?" Amber asks. "What is it?" + +The woman on the bed beckons to her slowly. Amber shakes her head. "Sorry, that's just not my scene." She backs away into the corridor, unsteady in unaccustomedly high heels. "This is some sort of male fantasy, isn't it? And a dumb adolescent one at that." She looks around again. In one direction, a corridor heads past more open doorways, and in the other, it ends with a spiral staircase. Amber concentrates, trying to tell the universe to take her to the logical destination, but nothing happens. "Looks like I'm going to have to do this the hard way. I wish -" she frowns. She was about to wish that /{someone}/ else was here, but she can't remember who. So she takes a deep breath and heads toward the staircase. + +"Up or down?" she asks herself. /{Up}/ - it seems logical, if you're going to have a tower, to sleep up at the top of it. So she climbs the steps carefully, holding the spiraling rail. /{I wonder who designed this space? she wonders, and what role am I supposed to fit into in their scenario?}/ On second thoughts, the latter question strikes her as laughable. /{Wait till I give him an earful ...}/ + +There's a plain wooden door at the top of the staircase, with a latch that isn't fastened. Amber pauses for a few seconds, nerving herself to confront a sleeper so wrapped in solipsism that he's built this sex-fantasy castle around himself. /{I hope it isn't Pierre}/, she thinks grimly as she pushes the door inward. + +The room is bare and floored in wood. There's no furniture, just an open window set high in one wall. A man sits cross-legged and robed, with his back to her, mumbling quietly to himself and nodding slightly. Her breath catches as she realizes who it is. /{Oh shit}/! Her eyes widen. /{Is this what's been inside his head all along?}/ + +"I did not summon you," Sadeq says calmly, not turning round to look at her. "Go away, tempter. You aren't real." + +Amber clears her throat. "Sorry to disappoint you, but you're wrong," she says. "We've got an alien monster to catch. Want to come hunting?" + +Sadeq stops nodding. He sits up slowly, stretching his spine, then stands up and turns round. His eyes glint in the moonlight. "That's odd." He undresses her with his gaze. "You look like someone I used to know. You've never done that before." + +"For fuck's sake!" Amber nearly explodes, but catches herself after a moment. "What /{is}/ this, a Solipsists United chapterhouse meeting?" + +"I -" Sadeq looks puzzled. "I'm sorry, are you claiming to be real?" + +"As real as you are." Amber reaches out and grabs a hand: He doesn't resist as she pulls him toward the doorway. + +"You're the first visitor I've ever had." He sounds shocked. + +"Listen, come /{on}/." She tugs him after her, down the spiral staircase to the floor below. "Do you want to stay here? Really?" She glances back at him. "What /{is}/ this place?" + +"Hell is a perversion of heaven," he says slowly, running the fingers of his free hand through his beard. Abruptly, he reaches out and grabs her around the waist, then yanks her toward him. "We'll have to /{see}/ how real you are -" Amber, who is not used to this kind of treatment, responds by stomping on his instep and backhanding him hard. + +"You're real!" he cries, as he falls back against the staircase. "Forgive me, please! I had to know -" + +"Know /{what}/?" she snarls. "Lay one finger on me again, and I'll leave you here to rot!" She's already spawning the ghost that will signal the alien outside to pull her out of this pocket universe: It's a serious threat. + +"But I had to - wait. You have /{free will}/. You just demonstrated that." He's breathing heavily and looking up at her imploringly. "I'm /{sorry}/, I apologize! But I had to know whether you were another zombie. Or not." + +"A zombie?" She looks round. Another living doll has appeared behind her, standing in an open doorway wearing a skintight leather suit with a cutaway crotch. She beckons to Sadeq invitingly. Another body wearing strategically placed strips of rubber mewls at her feet, writhing for attention. Amber raises an eyebrow in disgust. "You thought I was one of those?" + +Sadeq nods. "They've got cleverer lately. Some of them can talk. I nearly mistook one for -" He shudders convulsively. "Unclean!" + +"Unclean." Amber looks down at him thoughtfully. "This isn't really your personal paradise after all, is it?" After a moment she holds out a hand to him. "Come on." + +"I'm sorry I thought you were a zombie," he repeats. + +"Under the circumstances, I think I forgive you," she says. Then the ghost yanks them both back to the universe outside. + +* * * + +_1 More memories converge on the present moment: + +_1 The Ring Imperium is a huge cluster of self-replicating robots that Amber has assembled in low Jupiter orbit, fueled by the mass and momentum of the small moon J-47 Barney, to provide a launching platform for the interstellar probe her father's business partners are helping her to build. It's also the seat of her court, the leading jurisprudential nexus in the outer solar system. Amber is the Queen, here, arbitrator and ruler. And Sadeq is her judge and counsel. + +_1 A plaintiff Amber only knows as a radar blip thirty light-minutes away has filed a lawsuit in her court, alleging malfeasance, heresy, and barratry against a semisentient corporate pyramid scheme that arrived in Jovian space twelve million seconds ago and currently seems set on converting every other intelligence in the region to its peculiar memeset. A whole bundle of multithreaded countersuits are dragging at her attention, in a counterattack alleging that the light blip is in violation of copyright, patent, and trade secrecy laws by discussing the interloper's intentions. + +_1 Right now, Amber isn't home on the Ring to hear the case in person. She's left Sadeq behind to grapple with the balky mechanics of her legal system - tailor-designed to make corporate litigation a pain in the ass - while she drags Pierre off on a diplomatic visit to another Jovian colony, the Nursery Republic. Planted by the Franklin Trust's orphanage ship /{Ernst Sanger}/, the Nursery has grown over the past four years into a spindly snowflake three kilometers across. A slow-growing O'Neil cylinder sprouts from its hub: Most of the inhabitants of the space station are less than two years old, precocious additions to the Trust's borganism. + +_1 There's a piazza, paved with something not unlike rough marble, on the side of a hill that clings insecurely to the inner edge of a spinning cup. The sky is a black vastness overhead, wheeling slowly around a central axis lined up on Jupiter. Amber sprawls in a wicker chair, her legs stretched out before her and one arm flung across her forehead. The wreckage of an incredible meal is scattered across the tables around her. Torpid and full, she strokes the cat that lies curled in her lap. Pierre is off somewhere, touring one or another of the prototype ecosystems that one or another of the borg's special interest minds is testing. Amber, for her part, can't be bothered. She's just had a great meal, she doesn't have any lawsuits to worry about, everything back home is on the critpath, and quality time like this is so hard to come by - + +_1 "Do you keep in touch with your father?" asks Monica. + +_1 "Mmm." The cat purrs quietly, and Amber strokes its flank. "We e-mail. Sometimes." + +_1 "I just wondered." Monica is the local borg den mother, willowy and brown-eyed and with a deceptively lazy drawl - Yorkshire English overlaid with Silicon Valley speak. "I hear from him, y'know. From time to time. Now that Gianni's retired, he doesn't have much to do down-well anymore. So he was talking about coming out here." + +_1 "What? To Perijove?" Amber's eyes open in alarm: Aineko stops purring and looks round at Monica accusingly. + +_1 "Don't worry." Monica sounds vaguely amused: "He wouldn't cramp your style, I think." + +_1 "But, out here -" Amber sits up. "Damn," she says, quietly. "What got into him?" + +_1 "Middle-aged restlessness, my downwell sibs say." Monica shrugs. "This time Annette didn't stop him. But he hasn't made up his mind to travel yet." + +_1 "Good. Then he might not -" Amber stops. "The phrase, 'made up his mind', what exactly do you mean?" + +_1 Monica's smile mocks her for a few seconds before the older woman surrenders. "He's talking about uploading." + +_1 "Is that embarrassing or what?" asks Ang. Amber glances at her, mildly annoyed, but Ang isn't looking her way. /{So much for friends}/, Amber thinks. Being queen of all you survey is a great way of breaking up peer relationships - + +_1 "He won't do it," Amber predicts. "Dad's burned out." + +_1 "He thinks he'll get it back if he optimizes himself for re-entrancy." Monica continues to smile. "I've been telling him it's just what he needs." + +_1 "I do /{not}/ want my father bugging me. Or my mother. Or Auntie 'Nette and Uncle Gianni. Memo to immigration control: No entry rights for Manfred Macx or the other named individuals without clearance through the Queen's secretary." + +_1 "What did he do to get you so uptight?" asks Monica idly. + +_1 Amber sighs, and subsides. "Nothing. It's not that I'm ungrateful or anything, but he's just so extropian, it's embarrassing. Like, that was the last century's apocalypse. Y'know?" + +_1 "I think he was a really very forward-looking organic," Monica, speaking for the Franklin borg, asserts. Amber looks away. /{Pierre would get it}/, she thinks. Pierre would understand her aversion to Manfred's showing up. Pierre, too, wants to carve out his own niche without parents looking over his shoulders, although for very different reasons. She focuses on someone male and more or less mature - Nicky, she thinks, though she hasn't seen him for a long time - walking toward the piazza, bare-ass naked and beautifully tanned. + +_1 "Parents. What are they good for?" asks Amber, with all the truculence of her seventeen years. "Even if they stay neotenous, they lose flexibility. And there's that long Paleolithic tradition of juvenile slavery. Inhuman, I call it." + +_1 "How old were you when it was safe to leave you around the house on your own?" challenges Monica. + +_1 "Three. That's when I had my first implants." Amber smiles at the approaching young Adonis, who smiles back: Yes, it's Nicky, and he seems pleased to see her. /{Life is good}/, she thinks, idly considering whether or not to tell Pierre. + +_1 "Times change," remarks Monica. "Don't write your family off too soon; there might come a time when you want their company." + +_1 "Huh." Amber pulls a face at the old borg component. "That's what you all say!" + +* * * + +As soon as Amber steps onto the grass, she can feel possibilities open up around her. She has management authority here, and this universe is /{big}/, wide open, not like Sadeq's existential trap. A twitch of a sub-process reasserts her self-image, back to short hair and comfortable clothing. Another twitch brings up a whole load of useful diagnostics. Amber has a nasty feeling that she's running in a compatibility sandbox here - there are signs that her access to the simulation system's control interface is very much via proxy - but at least she's got it. + +"Wow! Back in the real world at last!" She can hardly contain her excitement, even forgetting to be pissed at Sadeq for thinking she was just an actor in his Cartesian theatre's performance of Puritan Hell. "Look! It's the DMZ!" + +They're standing on a grassy knoll overlooking a gleaming Mediterranean city. It snoozes beneath a Mandelbrot-fuzzy not-sun that hangs at the center of a hyperbolic landscape, which dwindles into a blue yonder that seems incomprehensibly distant. Circular baby-blue wells open in the walls of the world at regular intervals, connecting to other parts of the manifold. "How big is it, ghost? In planetary simulation-equivalents." + +"This demilitarized zone is an embedded reality, funneling all transfers between the local star system's router and the civilization that built it. It uses on the order of a thousandth of the capacity of the Matrioshka brain it is part of, although the runaway excursion currently in force has absorbed most of that. Matrioshka brain, you are familiar with the concept?" The ghost sounds fussily pedantic. + +Sadeq shakes his head. Amber glances at him, askance. "Take all the planets in a star system and dismantle them," she explains. "Turn them into dust - structured nanocomp, powered by heat exchangers, spread in concentric orbits around the central star. The inner orbitals run close to the melting point of iron, the outer ones are cold as liquid nitrogen, and each layer runs off the waste heat of the next shell in. It's like a Russian doll made out of Dyson spheres, shell enclosing shell enclosing shell, but it's not designed to support human life. It's computronium, matter optimized at the atomic level to support computing, and they're all running uploads - Dad figured our own solar system could support, uh, about a hundred billion times as many inhabitants as Earth. At a conservative estimate. As uploads, living in simulation space. If you first dismantle all the planets and use the resulting materials to build a Matrioshka brain." + +"Ah." Sadeq nods thoughtfully. "Is that your definition, too?" he asks, glancing up at the glowing point the ghost uses to localize its presence. + +"Substantially," it says, almost grudgingly. + +"Substantially?" Amber glances around. /{A billion worlds to explore}/, she thinks dizzily. /{And that's just the}/ firewall? She feels obscurely cheated: You need to be vaster than human just to count the digits in the big numbers at play here, but there's nothing fundamentally incomprehensible about it. This is the sort of civilization Dad said she could expect to live in, within her meatbody life expectancy. Dad and his drinking buddies, singing, "Dismantle the Moon! Melt down Mars!" in a castle outside Prague as they waited for the results of a shamelessly gerrymandered election to arrive in the third decade of the third millennium. The Space and Freedom Party taking over the EU, and cranking up to escape velocity. But this is supposed to be kiloparsecs from home, ancient alien civilizations and all that! Where's the exotic superscience? What about the neuron stars, strange matter suns structured for computing at nucleonic, rather than electronic, speeds? /{I have a bad feeling about this}/, she thinks, spawning a copy of herself to set up a private channel to Sadeq. /{It's not advanced enough. Do you suppose these guys could be like the Wunch? Parasites or barbarians hitching a ride in the machine?}/ + +/{You believe it's lying to us?}/ Sadeq sends back. + +"Hmm." Amber sets off downslope toward the piazza below, at the heart of the fake town. "It looks a bit too human to me." + +"Human," echoes Sadeq, a curious wistfulness in his voice. "Did you not say humans are extinct?" + +"Your species is obsolete," the ghost comments smugly. "Inappropriately adapted to artificial realities. Poorly optimized circuitry, excessively complex low-bandwidth sensors, messily global variables -" + +"Yeah, yeah, I get the picture," says Amber, turning her attention to the town. "So why do you think we can deal with this alien god you've got a problem with?" + +"It asked for you," says the ghost, narrowing from an ellipse to a line, then shrinking to a dimensionless point of brilliance. "And now it's coming. We-I not willing to risk exposure. Call us-me when you have slain the dragon. Goodbye." + +"Oh /{shit}/ -" Amber spins round. But she and Sadeq are alone beneath the hot sunlight from above. The piazza, like the one in the Nursery Republic, is charmingly rustic - but there's nobody home, nothing but ornate cast-iron furniture basking beneath the noon-bright sun, a table with a parasol over it, and something furry lying sprawled in a patch of sunlight beside it. + +"We appear to be alone for now," says Sadeq. He smiles crookedly, then nods at the table. "Maybe we should wait for our host to arrive?" + +"Our host." Amber peers around. "The ghost is kind of frightened of this alien. I wonder why?" + +"It asked for us." Sadeq heads toward the table, pulls out a chair, and sits down carefully. "That could be very good news - or very bad." + +"Hmm." Amber finishes her survey, sees no sign of life. For lack of any better ideas, she ambles over to the table and sits down on the other side of it from Sadeq. He looks slightly nervous beneath her inspection, but maybe it's just embarrassment about having seen her in her underwear. /{If I had an afterlife like that, I'd be embarrassed about it, too,}/ Amber thinks to herself. + +"Hey, you nearly tripped over -" Sadeq freezes, peering at something close to Amber's left foot. He looks puzzled for a moment, then smiles broadly. "What are /{you}/ doing here?" he asks her blind spot. + +"What are you talking to?" she asks, startled. + +/{He's talking to}/ me, /{dummy}/, says something tantalizingly familiar from her blind spot. /{So the fuckwits are trying to use you to dislodge me, hmm? That's not exactly clever.}/ + +"Who -" Amber squints at the flagstone, spawns a bunch of ghosts who tear hurriedly at her reality modification ackles. Nothing seems to shift the blindness. "Are you the alien?" + +"What else could I be?" the blind spot asks with heavy irony. "No, I'm your father's pet cat. Listen, do you want to get out of here?" + +"Uh." Amber rubs her eyes. "I can't see you, whatever you are," she says politely. "Do I know you?" She's got a strange sense that she /{does}/ know the blind spot, that it's really important, and she's missing something intimate to her own sense of identity, but what it might be she can't tell. + +"Yeah, kid." There's a note of world-weary amusement in the not-voice coming from the hazy patch on the ground. "They've hacked you but good, both of you. Let me in, and I'll fix it." + +"No!" Exclaims Amber, a second ahead of Sadeq, who looks at her oddly. "Are you really an invader?" + +The blind spot sighs. "I'm as much an invader as you are, remember? I came here with you. Difference is, I'm not going to let some stupid corporate ghost use me as fungible currency." + +"Fungible -" Sadeq stops. "I remember you," he says slowly, with an expression of absolute, utter surprise on his face. "What do you mean?" + +The blind spot /{yawns}/, baring sharp ivory fangs. Amber shakes her head, dismissing the momentary hallucination. "Lemme guess. You woke up in a room, and this alien ghost tells you the human species is extinct and asks you to do a number on me. Is that right?" + +Amber nods, as an icy finger of fear trails up and down her spine. "Is it lying?" she asks. + +"Damn right." The blind spot is smiling, now, and the smile on the void won't go away - she can see the smile, just not the body it's attached to. "My reckoning is, we're about sixteen light-years from Earth. The Wunch came through here, stripped the dump, then took off for parts unknown; it's a trashhole, you wouldn't believe it. The main life-form is an incredibly ornate corporate ecosphere, legal instruments breeding and replicating. They mug passing sapients and use them as currency." + +There's a triangular, pointy head behind the smile, slit eyes and sharp ears, a predatory, intelligent-looking but infinitely alien face. Amber can see it out of the corners of her eyes when she looks around the piazza. "You mean we, uh, they grabbed us when we appeared, and they've mangled my memories -" Amber suddenly finds it incredibly difficult to concentrate, but if she focuses on the smile, she can almost see the body behind it, hunched like a furry chicken, tail wrapped neatly around its front paws. + +"Yeah. Except they didn't bargain on meeting something like me." The smile is infinitely wide, a Cheshire-cat grin on front of an orange-and-brown stripy body that shimmers in front of Amber's gaze like a hallucination. "Your mother's cracking tools are self-extending, Amber. Do you remember Hong Kong?" + +"Hong -" + +There is a moment of painless pressure, then Amber feels huge invisible barriers sliding away on all sides. She looks around, for the first time seeing the piazza as it really is, half the crew of the /{Field Circus}/ waiting nervously around her, the grinning cat crouched on the floor at her feet, the enormous walls of recomplicating data that fence their little town off from the gaping holes - interfaces to the other routers in the network. + +"Welcome back," Pierre says gravely, as Amber gives a squeak of surprise and leans forward to pick up her cat. "Now you're out from under, how about we start trying to figure out how to get home?" + +* * * + +_1 Welcome to decade the sixth, millennium three. These old datelines don't mean so much anymore, for while some billions of fleshbody humans are still infected with viral memes, the significance of theocentric dating has been dealt a body blow. This may be the fifties, but what that means to you depends on how fast your reality rate runs. The various upload clades exploding across the reaches of the solar system vary by several orders of magnitude - some are barely out of 2049, while others are exploring the subjective thousandth millennium. + +_1 While the /{Field Circus}/ floats in orbit around an alien router (itself orbiting the brown dwarf Hyundai ^{+4904}^/,{-56},), while Amber and her crew are trapped on the far side of a wormhole linking the router to a network of incomprehensibly vast alien mindscapes - while all this is going on, the damnfool human species has finally succeeded in making itself obsolete. The proximate cause of its displacement from the pinnacle of creation (or the pinnacle of teleological self-congratulation, depending on your stance on evolutionary biology) is an attack of self-aware corporations. The phrase "smart money" has taken on a whole new meaning, for the collision between international business law and neurocomputing technology has given rise to a whole new family of species - fast-moving corporate carnivores in the Net. The planet Mercury has been broken up by a consortium of energy brokers, and Venus is an expanding debris cloud, energized to a violent glare by the trapped and channeled solar output. A million billion fist-sized computing caltrops, backsides glowing dull red with the efflux from their thinking, orbit the sun at various inclinations no farther out than Mercury used to be. + +_1 Billions of fleshbody humans refuse to have anything to do with the blasphemous new realities. Many of their leaders denounce the uploads and AIs as soulless machines. Many more are timid, harboring self-preservation memes that amplify a previously healthy aversion to having one's brain peeled like an onion by mind-mapping robots into an all-pervading neurosis. Sales of electrified tinfoil-lined hats are at an all-time high. Still, hundreds of millions have already traded their meat puppets for mind machines, and they breed fast. In another few years, the fleshbody populace will be an absolute minority of the posthuman clade. Sometime later, there will probably be a war. The dwellers in the thoughtcloud are hungry for dumb matter to convert, and the fleshbodies make notoriously poor use of the collection of silicon and rare elements that pool at the bottom of the gravity well that is Earth. + +_1 Energy and thought are driving a phase-change in the condensed matter substance of the solar system. The MIPS per kilogram metric is on the steep upward leg of a sigmoid curve - dumb matter is coming to life as the mind children restructure everything with voracious nanomechanical servants. The thoughtcloud forming in orbit around the sun will ultimately be the graveyard of a biological ecology, another marker in space visible to the telescopes of any new iron-age species with the insight to understand what they're seeing: the death throes of dumb matter, the birth of a habitable reality vaster than a galaxy and far speedier. Death throes that, within a few centuries, will mean the extinction of biological life within a light-year or so of that star - for the majestic Matrioshka brains, though they are the pinnacles of sentient civilization, are intrinsically hostile environments for fleshy life. + +* * * + +Pierre, Donna-the-all-seeing-eye, and Su Ang fill Amber in on what they've discovered about the bazaar - as they call the space the ghost referred to as the demilitarized zone - over ice-cold margaritas and a very good simulation of a sociable joint. Some of them have been on the loose in here for subjective years. There's a lot of information to absorb. + +"The physical layer is half a light-hour in diameter, four hundred times as massive as Earth," Pierre explains. "Not solid, of course - the largest component is about the size my fist used to be." Amber squints, trying to remember how big that was - scale factors are hard to remember accurately. "I met this old chatbot that said it's outlived its original star, but I'm not sure it's running with a full deck. Anyway, if it's telling the truth, we're a third of a light year out from a closely coupled binary system - they use orbital lasers the size of Jupiter to power it without getting too close to all those icky gravity wells." + +Amber is intimidated, despite her better judgment, because this bizarre bazaar is several hundred billion times as big as the totality of human presingularity civilization. She tries not to show it in front of the others, but she's worried that getting home may be impossible - requiring enterprise beyond the economic event horizon, as realistic a proposition as a dime debuting as a dollar bill. Still, she's got to at least try. Just knowing about the existence of the bazaar will change so many things ... + +"How much money can we lay our hands on?" She asks. "What /{is}/ money hereabouts, anyway? Assuming they've got a scarcity-mediated economy. Bandwidth, maybe?" + +"Ah, well." Pierre looks at her oddly. "That's the problem. Didn't the ghost tell you?" + +"Tell me?" Amber raises an eyebrow. "Yeah, but it hasn't exactly proven to be a reliable guide to anything, has it?" + +"Tell her," Su Ang says quietly. She looks away, embarrassed by something. + +"They've got a scarcity economy all right," says Pierre. "Bandwidth is the limited resource, that and matter. This whole civilization is tied together locally because if you move too far away, well, it takes ages to catch up on the gossip. Matrioshka brain intelligences are much more likely to stay at home than anybody realized, even though they chat on the phone a lot. And they use things that come from other cognitive universes as, well, currency. We came in through the coin slot, is it any wonder we ended up in the bank?" + +"That's so deeply wrong that I don't know where to begin," Amber grumbles. "How did they get into this mess?" + +"Don't ask me." Pierre shrugs. "I have the distinct feeling that anyone or anything we meet in this place won't have any more of a clue than we do - whoever or whatever built this brain, there ain't nobody home anymore except the self-propelled corporations and hitchhikers like the Wunch. We're in the dark, just like they were." + +"Huh. You mean they built something like this, then they went extinct? That sounds so dumb ..." + +Su Ang sighs. "They got too big and complex to go traveling once they built themselves a bigger house to live in. Extinction tends to be what happens to overspecialized organisms that are stuck in one environmental niche for too long. If you posit a singularity, then maximization of local computing resources - like this - as the usual end state for tool users, is it any wonder none of them ever came calling on us?" + +Amber focuses on the table in front of her, rests the heel of her palm on the cool metal, and tries to remember how to fork a second copy of her state vector. A moment later, her ghost obligingly fucks with the physics model of the table. Iron gives way like rubber beneath her fingertips, a pleasant elasticity. "Okay, we have some control over the universe, at least that's something to work with. Have any of you tried any self-modification?" + +"That's dangerous," Pierre says emphatically. "The more of us the better before we start doing that stuff. And we need some firewalling of our own." + +"How deep does reality go, here?" asks Sadeq. It's almost the first question he's asked of his own volition, and Amber takes it as a positive sign that he's finally coming out of his shell. + +"Oh, the Planck length is about a hundredth of a millimeter in this world. Too small to see, comfortably large for the simulation engines to handle. Not like /{real}/ space-time." + +"Well, then." Sadeq pauses. "They can zoom their reality if they need to?" + +"Yeah, fractals work in here." Pierre nods. "I didn't -" + +"This place is a trap," Su Ang says emphatically. + +"No it isn't," Pierre replies, nettled. + +"What do you mean, a trap?" asks Amber. + +"We've been here a while," says Ang. She glances at Aineko, who sprawls on the flagstones, snoozing or whatever it is that weakly superhuman AIs do when they're emulating a sleeping cat. "After your cat broke us out of bondage, we had a look around. There are things out there that -" She shivers. "Humans can't survive in most of the simulation spaces here. Universes with physics models that don't support our kind of neural computing. You could migrate there, but you'd need to be ported to a whole new type of logic - by the time you did that, would you still be you? Still, there are enough entities roughly as complex as we are to prove that the builders aren't here anymore. Just lesser sapients, rooting through the wreckage. Worms and parasites squirming through the body after nightfall on the battlefield." + +"I ran into the Wunch," Donna volunteers helpfully. "The first couple of times they ate my ghost, but eventually I figured out how to talk to them." + +"And there's other aliens, too," Su Ang adds gloomily. "Just nobody you'd want to meet on a dark night." + +"So there's no hope of making contact," Amber summarizes. "At least, not with anything transcendent and well-intentioned toward visiting humans." + +"That's probably right," Pierre concedes. He doesn't sound happy about it. + +"So we're stuck in a pocket universe with limited bandwidth to home and a bunch of crazy slum dwellers who've moved into the abandoned and decaying mansion and want to use us for currency. 'Jesus saves, and redeems souls for valuable gifts.' Yeah?" + +"Yeah." Su Ang looks depressed. + +"Well." Amber glances at Sadeq speculatively. Sadeq is staring into the distance, at the crazy infinite sunspot that limns the square with shadows. "Hey, god-man. Got a question for you." + +"Yes?" Sadeq looks at her, a slightly dazed expression on his face. "I'm sorry, I am just feeling the jaws of a larger trap around my throat -" + +"Don't be." Amber grins, and it is not a pleasant expression. "Have you ever been to Brooklyn?" + +"No, why -" + +"Because you're going to help me sell these lying bastards a bridge. Okay? And when we've sold it we're going to use the money to pay the purchasing fools to drive us across, so we can go home. Listen, this is what I'm planning ..." + +* * * + +"I can do this, I think," Sadeq says, moodily examining the Klein bottle on the table. The bottle is half-empty, its fluid contents invisible around the corner of the fourth-dimensional store. "I spent long enough alone in there to -" He shivers. + +"I don't want you damaging yourself," Amber says, calmly enough, because she has an ominous feeling that their survival in this place has an expiry date attached. + +"Oh, never fear." Sadeq grins lopsidedly. "One pocket hell is much like another." + +"Do you understand why -" + +"Yes, yes," he says dismissively. "We can't send copies of ourselves into it, that would be an abomination. It needs to be unpopulated, yes?" + +"Well, the idea is to get us home, not leave thousands of copies of ourselves trapped in a pocket universe here. Isn't that it?" Su Ang asks hesitantly. She's looking distracted, most of her attention focused on absorbing the experiences of a dozen ghosts she's spun off to attend to perimeter security. + +"Who are we selling this to?" asks Sadeq. "If you want me to make it attractive -" + +"It doesn't need to be a complete replica of the Earth. It just has to be a convincing advertisement for a presingularity civilization full of humans. You've got two-and-seventy zombies to dissect for their brains; bolt together a bunch of variables you can apply to them, and you can permutate them to look a bit more varied." + +Amber turns her attention to the snoozing cat. "Hey, furball. How long have we been here really, in real time? Can you grab Sadeq some more resources for his personal paradise garden?" + +Aineko stretches and yawns, totally feline, then looks up at Amber with narrowed eyes and raised tail. "'Bout eighteen minutes, wall-clock time." The cat stretches again and sits, front paws drawn together primly, tail curled around them. "The ghosts are pushing, you know? I don't think I can sustain this for too much longer. They're not good at hacking people, but I think it won't be too long before they instantiate a new copy of you, one that'll be predisposed to their side." + +"I don't get why they didn't assimilate you along with the rest of us." + +"Blame your mother again - she's the one who kept updating the digital rights management code on my personality. 'Illegal consciousness is copyright theft' sucks until an alien tries to rewire your hindbrain with a debugger; then it's a lifesaver." Aineko glances down and begins washing one paw. "I can give your mullah-man about six days, subjective time. After that, all bets are off." + +"I will take it, then." Sadeq stands. "Thank you." He smiles at the cat, a smile that fades to translucency, hanging in the simulated air like an echo as the priest returns to his tower - this time with a blueprint and a plan in mind. + +"That leaves just us." Su Ang glances at Pierre, back to Amber. "Who are you going to sell this crazy scheme to?" + +Amber leans back and smiles. Behind her, Donna - her avatar an archaic movie camera suspended below a model helicopter - is filming everything for posterity. She nods lazily at the reporter. "She's the one who gave me the idea. Who do we know who's dumb enough to buy into a scam like this?" + +Pierre looks at her suspiciously. "I think we've been here before," he says slowly. "You aren't going to make me kill anyone, are you?" + +"I don't think that'll be necessary, unless the corporate ghosts think we're going to get away from them and are greedy enough to want to kill us." + +"You see, she learned from last time," Ang comments, and Amber nods. "No more misunderstandings, right?" She beams at Amber. + +Amber beams back at her. "Right. And that's why you -" she points at Pierre - "are going to go find out if any relics of the Wunch are hanging about here. I want you to make them an offer they won't refuse." + +* * * + +"How much for just the civilization?" asks the Slug. + +Pierre looks down at it thoughtfully. It's not really a terrestrial mollusk: Slugs on Earth aren't two meters long and don't have lacy white exoskeletons to hold their chocolate-colored flesh in shape. But then, it isn't really the alien it appears to be. It's a defaulting corporate instrument that has disguised itself as a long-extinct alien upload, in the hope that its creditors won't recognize it if it looks like a randomly evolved sentient. One of the stranded members of Amber's expedition made contact with it a couple of subjective years ago, while exploring the ruined city at the center of the firewall. Now Pierre's here because it seems to be one of their most promising leads. Emphasis on the word promising - because it promises much, but there is some question over whether it can indeed deliver. + +"The civilization isn't for sale," Pierre says slowly. The translation interface shimmers, storing up his words and transforming them into a different deep grammar, not merely translating his syntax but mapping equivalent meanings where necessary. "But we can give you privileged observer status if that's what you want. And we know what you are. If you're interested in finding a new exchange to be traded on, your existing intellectual property assets will be worth rather more there than here." + +The rogue corporation rears up slightly and bunches into a fatter lump. Its skin blushes red in patches. "Must think about this. Is your mandatory accounting time cycle fixed or variable term? Are self-owned corporate entities able to enter contracts?" + +"I could ask my patron," Pierre says casually. He suppresses a stab of angst. He's still not sure where he and Amber stand, but theirs is far more than just a business relationship, and he worries about the risks she's taking. "My patron has a jurisdiction within which she can modify corporate law to accommodate your requirements. Your activities on a wider scale might require shell companies -" the latter concept echoes back in translation to him as host organisms - "but that can be taken care of." + +The translation membrane wibbles for a while, apparently reformulating some more abstract concepts in a manner that the corporation can absorb. Pierre is reasonably confident that it'll take the offer, however. When it first met them, it boasted about its control over router hardware at the lowest levels. But it also bitched and moaned about the firewall protocols that were blocking it from leaving (before rather rudely trying to eat its conversationalist). He waits patiently, looking around at the swampy landscape, mudflats punctuated by clumps of spiky violet ferns. The corporation has to be desperate, to be thinking of the bizarre proposition Amber has dreamed up for him to pitch to it. + +"Sounds interesting," the Slug declares after a brief confirmatory debate with the membrane. "If I supply a suitable genome, can you customize a container for it?" + +"I believe so," Pierre says carefully. "For your part, can you deliver the energy we need?" + +"From a gate?" For a moment the translation membrane hallucinates a stick-human, shrugging. "Easy. Gates are all entangled: Dump coherent radiation in at one, get it out at another. Just get me out of this firewall first." + +"But the lightspeed lag -" + +"No problem. You go first, then a dumb instrument I leave behind buys up power and sends it after. Router network is synchronous, within framework of state machines that run Universe 1.0; messages propagate at same speed, speed of light in vacuum, except use wormholes to shorten distances between nodes. Whole point of the network is that it is nonlossy. Who would trust their mind to a communications channel that might partially randomize them in transit?" + +Pierre goes cross-eyed, trying to understand the implications of the Slug's cosmology. But there isn't really time, here and now: They've got on the order of a minute of wall-clock time left to get everything sorted out, if Aineko is right. One minute to go before the angry ghosts start trying to break into the DMZ by other means. "If you are willing to try this, we'd be happy to accommodate you," he says, thinking of crossed fingers and rabbits' feet and firewalls. + +"It's a deal," the membrane translates the Slug's response back at him. "Now we exchange shares/plasmids/ownership? Then merger complete?" + +Pierre stares at the Slug: "But this is a business arrangement!" he protests. "What's sex got to do with it?" + +"Apologies offered. I am thinking we have a translation error. You said this was to be a merging of businesses?" + +"Not /{that}/ way. It's a contract. We agree to take you with us. In return, you help lure the Wunch into the domain we're setting up for them and configure the router at the other end ..." + +And so on. + +* * * + +Steeling herself, Amber recalls the address the ghost gave her for Sadeq's afterlife universe. In her own subjective time it's been about half an hour since he left. "Coming?" she asks her cat. + +"Don't think I will," says Aineko. It looks away, blissfully unconcerned. + +"Bah." Amber tenses, then opens the port to Sadeq's pocket universe. + +As usual she finds herself indoors, standing on an ornate mosaic floor in a room with whitewashed walls and peaked windows. But there's something different about it, and after a moment, she realizes what it is. The sound of vehicle traffic from outside, the cooing of pigeons on the rooftops, someone shouting across the street: There are people here. + +She walks over to the nearest window and looks out, then recoils. It's /{hot}/ outside. Dust and fumes hang in air the color of cement over rough-finished concrete apartment buildings, their roofs covered in satellite uplinks and cheap, garish LED advertising panels. Looking down she sees motor scooters, cars - filthy, fossil-fueled behemoths, a tonne of steel and explosives in motion to carry only one human, a mass ratio worse than an archaic ICBM - brightly dressed people walking to and fro. A news helicam buzzes overhead, lenses darting and glinting at the traffic. + +"Just like home, isn't it?" says Sadeq, behind her. + +Amber starts. "This is where you grew up? This is Yazd?" + +"It doesn't exist anymore, in real space." Sadeq looks thoughtful, but far more animated than the barely conscious parody of himself that she'd rescued from this building - back when it was a mediaeval vision of the afterlife - scant subjective hours ago. He cracks a smile: "Probably a good thing. We were dismantling it even while we were preparing to leave, you know?" + +"It's detailed." Amber throws her eyes at the scene out the window, multiplexes them, and tells them to send little virtual ghosts dancing through the streets of the Iranian industrial 'burb. Overhead, big Airbuses ply the skyways, bearing pilgrims on the hajj, tourists to the coastal resorts on the Persian Gulf, produce to the foreign markets. + +"It's the best time I could recall," Sadeq says. "I didn't spend many days here then - I was in Qom, studying, and Kazakhstan, for cosmonaut training - but it's meant to be the early twenties. After the troubles, after the fall of the guardians; a young, energetic, liberal country full of optimism and faith in democracy. Values that weren't doing well elsewhere." + +"I thought democracy was a new thing there?" + +"No." Sadeq shakes his head. "There were prodemocracy riots in Tehran in the nineteenth century, did you know that? That's why the first revolution - no." He makes a cutting gesture. "Politics and faith are a combustible combination." He frowns. "But look. Is this what you wanted?" + +Amber recalls her scattered eyes - some of which have flown as much as a thousand kilometers from her locus - and concentrates on reintegrating their visions of Sadeq's re-creation. "It looks convincing. But not too convincing." + +"That was the idea." + +"Well, then." She smiles. "Is it just Iran? Or did you take any liberties around the edges?" + +"Who, me?" He raises an eyebrow. "I have enough doubts about the morality of this - project - without trying to trespass on Allah's territory, peace be unto him. I promise you, there are no sapients in this world but us. The people are the hollow shells of my dreaming, storefront dummies. The animals are crude bitmaps. This is what you asked for, and no more." + +"Well, then." Amber pauses. She recalls the expression on the dirt-smudged face of a little boy, bouncing a ball at his companions by the boarded-up front of a gas station on a desert road; remembers the animated chatter of two synthetic housewives, one in traditional black and the other in some imported Eurotrash fashion. "Are you sure they aren't real?" she asks. + +"Quite sure." But for a moment, she sees Sadeq looking uncertain. "Shall we go? Do you have the occupiers ready to move in yet?" + +"Yes to the first, and Pierre's working on the second. Come on, we don't want to get trampled by the squatters." She waves and opens a door back onto the piazza where her robot cat - the alien's nightmare intruder in the DMZ - sleeps, chasing superintelligent dream mice through multidimensional realities. "Sometimes I wonder if /{I'm}/ conscious. Thinking these thoughts gives me the creeps. Let's go and sell some aliens a bridge in Brooklyn." + +* * * + +Amber confronts the mendacious ghost in the windowless room stolen from 2001. + +"You have confined the monster," the ghost states. + +"Yes." Amber waits for a subjective moment, feeling delicate fronds tickle at the edges of her awareness in what seems to be a timing channel attack. She feels a momentary urge to sneeze, and a hot flash of anger that passes almost immediately. + +"And you have modified yourself to lock out external control," the ghost adds. "What is it that you want, Autonome Amber?" + +"Don't you have any concept of individuality?" she asks, annoyed by its presumption at meddling with her internal states. + +"Individuality is an unnecessary barrier to information transfer," says the ghost, morphing into its original form, a translucent reflection of her own body. "It reduces the efficiency of a capitalist economy. A large block of the DMZ is still inaccessible to we-me. Are you /{sure}/ you have defeated the monster?" + +"It'll do as I say," Amber replies, forcing herself to sound more confident than she feels - sometimes that damned transhuman cyborg cat is no more predictable than a real feline. "Now, the matter of payment arises." + +"Payment." The ghost sounds amused. But Pierre's filled her in on what to look for, and Amber can now see the translation membranes around it. Their color shift maps to a huge semantic distance; the creature on the other side, even though it looks like a ghost-image of herself, is very far from human. "How can we-us be expected to pay our own money for rendering services to us?" + +Amber smiles. "We want an open channel back to the router we arrived through." + +"Impossible," says the ghost. + +"We want an open channel, /{and}/ for it to stay open for six hundred million seconds after we clear it." + +"Impossible," the ghost repeats. + +"We can trade you a whole civilization," Amber says blandly. "A whole human nation, millions of individuals. Just let us go, and we'll see to it." + +"You - please wait." The ghost shimmers slightly, fuzzing at the edges. + +Amber opens a private channel to Pierre while the ghost confers with its other nodes. /{Are the Wunch in place yet?}/ she sends. + +/{They're moving in. This bunch don't remember what happened on the}/ Field Circus, /{memories of those events never made it back to them. So the Slug's got them to cooperate. It's kinda scary to watch - like}/ the Invasion of the Body Snatchers, /{you know?}/ + +/{I don't care if it's scary to watch}/, Amber replies, /{I need to know if we're ready yet}/. + +/{Sadeq says yes, the universe is ready.}/ + +/{Right, pack yourself down. We'll be moving soon.}/ + +The ghost is firming up in front of her. "A whole civilization?" it asks. "That is not possible. Your arrival -" It pauses, fuzzing a little. /{Hah, Gotcha!}/ thinks Amber. /{Liar, liar, pants on fire!}/ "You cannot possibly have found a human civilization in the archives?" + +"The monster you complain about that came through with us is a predator," she asserts blandly. "It swallowed an entire nation before we heroically attracted its attention and induced it to follow us into the router. It's an archivore - everything was inside it, still frozen until we expanded it again. This civilization will already have been restored from hot shadows in our own solar system: There is nothing to gain by taking it home with us. But we need to return to ensure that no more predators of this type discover the router - or the high-bandwidth hub we linked to it." + +"You are sure you have killed this monster?" asks the ghost. "It would be inconvenient if it were to emerge from hiding in its digest archives." + +"I can guarantee it won't trouble you again if you let us go," says Amber, mentally crossing her fingers. The ghost doesn't seem to have noticed the huge wedge of fractally compressed data that bloats her personal scope by an order of magnitude. She can still feel Aineko's goodbye smile inside her head, an echo of ivory teeth trusting her to revive it if the escape plan succeeds. + +"We-us agree." The ghost twists weirdly, morphs into a five-dimensional hypersphere. It bubbles violently for a moment, then spits out a smaller token - a warped distortion in the air, like a gravityless black hole. "Here is your passage. Show us the civilization." + +"Okay " - /{Now!}/ - "catch." Amber twitches an imaginary muscle, and one wall of the room dissolves, forming a doorway into Sadeq's existential hell, now redecorated as a fair facsimile of a twenty-first-century industrial city in Iran, and populated by a Wunch of parasites who can't believe what they've lucked into - an entire continent of zombies waiting to host their flesh-hungry consciousness. + +The ghost drifts toward the open window. Amber grabs the hole and yanks it open, gets a grip on her own thoughts, and sends /{Open wide!}/ on the channel everybody is listening in on. For a moment time stands still, and then - + +* * * + +A synthetic gemstone the size of a Coke can falls through the cold vacuum, in high orbit around a brown dwarf. But the vacuum is anything but dark. A sapphire glare as bright as the noonday sun on Mars shines on the crazy diamond, billowing and cascading off sails as fine as soap bubbles that slowly drift and tense away from the can. The runaway Slug-corporation's proxy has hacked the router's firmware, and the open wormhole gate that feeds power to it is shining with the brilliance of a nuclear fireball, laser light channeled from a star many light-years away to power the /{Field Circus}/ on its return trip to the once-human solar system. + +Amber has retreated, with Pierre, into a simulation of her home aboard the Ring Imperium. One wall of her bedroom is a solid slab of diamond, looking out across the boiling Jovian ionosphere from an orbit low enough to make the horizon appear flat. They're curled together in her bed, a slightly more comfortable copy of the royal bed of King Henry VIII of England. It appears to be carved from thousand-year-old oak beams. As with so much else about the Ring Imperium, appearances are deceptive; and this is even more true of the cramped simulation spaces aboard the /{Field Circus}/, as it limps toward a tenth the speed of light, the highest velocity it's likely to achieve on a fraction of its original sail area. + +"Let me get this straight. You convinced. The locals. That a simulation of Iran, with zombie bodies that had been taken over by members of the Wunch. Was a human civilization?" + +"Yeah." Amber stretches lazily and smirks at him. "It's their damn fault; if the corporate collective entities didn't use conscious viewpoints as money, they wouldn't have fallen for a trick like that, would they?" + +"People. Money." + +"Well." She yawns, then sits up and snaps her finger imperiously: Down-stuffed pillows appear behind her back, and a silver salver bearing two full glasses of wine materializes between them. "Corporations are life-forms back home, too, aren't they? And we trade them. We give our AIs corporations to make them legal entities, but the analogy goes deeper. Look at any company headquarters, fitted out with works of art and expensive furniture and staff bowing and scraping everywhere -" + +" - They're the new aristocracy. Right?" + +"Wrong. When they take over, what you get is more like the new biosphere. Hell, the new primordial soup: prokaryotes, bacteria, and algae, mindlessly swarming, trading money for plasmids." The Queen passes her consort a wineglass. When he drinks from it, it refills miraculously. "Basically, sufficiently complex resource-allocation algorithms reallocate scarce resources ... and if you don't jump to get out of their way, they'll reallocate you. I think that's what happened inside the Matrioshka brain we ended up in: Judging by the Slug it happens elsewhere, too. You've got to wonder where the builders of that structure came from. And where they went. And whether they realized that the destiny of intelligent tool-using life was to be a stepping-stone in the evolution of corporate instruments." + +"Maybe they tried to dismantle the companies before the companies spent them." Pierre looks worried. "Running up a national debt, importing luxurious viewpoint extensions, munching exotic dreams. Once they plugged into the Net, a primitive Matrioshka civilization would be like, um." He pauses. "Tribal. A primitive postsingularity civilization meeting the galactic net for the first time. Overawed. Wanting all the luxuries. Spending their capital, their human - or alien - capital, the meme machines that built them. Until there's nothing left but a howling wilderness of corporate mechanisms looking for someone to own." + +"Speculation." + +"Idle speculation," he agrees. + +"But we can't ignore it." She nods. "Maybe some early corporate predator built the machines that spread the wormholes around brown dwarfs and ran the router network on top of them in an attempt to make money fast. By not putting them in the actual planetary systems likely to host tool-using life, they'd ensure that only near-singularity civilizations would stumble over them. Civilizations that had gone too far to be easy prey probably wouldn't send a ship out to look ... so the network would ensure a steady stream of yokels new to the big city to fleece. Only they set the mechanism in motion billions of years ago and went extinct, leaving the network to propagate, and now there's nothing out there but burned-out Matrioshka civilizations and howling parasites like the angry ghosts and the Wunch. And victims like us." She shudders and changes the subject: "Speaking of aliens, is the Slug happy?" + +"Last time I checked on him, yeah." Pierre blows on his wineglass and it dissolves into a million splinters of light. He looks dubious at the mention of the rogue corporate instrument they're taking with them. "I don't trust him out in the unrestricted sim-spaces yet, but he delivered on the fine control for the router's laser. I just hope you don't ever have to actually use him, if you follow my drift. I'm a bit worried that Aineko is spending so much time in there." + +"So that's where she is? I'd been worrying." + +"Cats never come when you call them, do they?" + +"There is that," she agrees. Then, with a worried glance at the vision of Jupiter's cloudscape: "I wonder what we'll find when we get there?" + +Outside the window, the imaginary Jovian terminator is sweeping toward them with eerie rapidity, sucking them toward an uncertain nightfall. + +PART 3: Singularity + +There's a sucker born every minute. + +- P. T. Barnum + +Chapter 7: Curator + +Sirhan stands on the edge of an abyss, looking down at a churning orange-and-gray cloudscape far below. The air this close to the edge is chilly and smells slightly of ammonia, although that might be his imagination at work - there's little chance of any gas exchange taking place across the transparent pressure wall of the flying city. He feels as if he could reach out and touch the swirling vaporscape. There's nobody else around, this close to the edge - it's an icy sensation to look out across the roiling depths, at an ocean of gas so cold human flesh would freeze within seconds of exposure, knowing that there's nothing solid out there for tens of thousands of kilometers. The sense of isolation is aggravated by the paucity of bandwidth, this far out of the system. Most people huddle close to the hub, for comfort and warmth and low latency: posthumans are gregarious. + +Beneath Sirhan's feet, the lily-pad city is extending itself, mumbling and churning in endless self-similar loops like a cubist blastoma growing in the upper atmosphere of Saturn. Great ducts suck in methane and other atmospheric gases, apply energy, polymerize and diamondize, and crack off hydrogen to fill the lift cells high above. Beyond the sapphire dome of the city's gasbag, an azure star glares with the speckle of laser light; humanity's first - and so far, last - starship, braking into orbit on the last shredded remnant of its light sail. + +He's wondering maliciously how his mother will react to discovering her bankruptcy when the light above him flickers. Something gray and unpleasant splatters against the curve of nearly invisible wall in front of him, leaving a smear. He takes a step back and looks up angrily. "Fuck you!" he yells. Raucous cooing laughter follows him away from the boundary, feral pigeon voices mocking. "I mean it," he warns, flicking a gesture at the air above his head. Wings scatter in a burst of thunder as a slab of wind solidifies, thistledown-shaped nanomachines suspended on the breeze locking edge to edge to form an umbrella over his head. He walks away from the perimeter, fuming, leaving the pigeons to look for another victim. + +Annoyed, Sirhan finds a grassy knoll a couple of hundred meters from the rim and around the curve of the lily-pad from the museum buildings. It's far enough from other humans that he can sit undisturbed with his thoughts, far enough out to see over the edge without being toilet-bombed by flocking flying rats. (The flying city, despite being the product of an advanced technology almost unimaginable two decades before, is full of bugs - software complexity and scaling laws ensured that the preceding decades of change acted as a kind of cosmological inflationary period for design glitches, and an infestation of passenger pigeons is by no means the most inexplicable problem this biosphere harbors.) + +In an attempt to shut the more unwelcome manifestations of cybernature out, he sits under the shade of an apple tree and marshals his worlds around him. "When is my grandmother arriving?" he asks one of them, speaking into an antique telephone in the world of servants, where everything is obedient and knows its place. The city humors him, for its own reasons. + +"She is still containerized, but aerobraking is nearly over. Her body will be arriving down-well in less than two megaseconds." The city's avatar in this machinima is a discreet Victorian butler, stony-faced and respectful. Sirhan eschews intrusive memory interfaces; for an eighteen-year-old, he's conservative to the point of affectation, favoring voice commands and anthropomorphic agents over the invisible splicing of virtual neural nets. + +"You're certain she's transferred successfully?" Sirhan asks anxiously. He heard a lot about his grandmama when he was young, very little of it complimentary. Nevertheless, the old bat must be a lot more flexible than his mother ever gave her credit for, to be subjecting herself to this kind of treatment for the first time at her current age. + +"I'm as certain as I can be, young master, for anyone who insists on sticking to their original phenotype without benefit of off-line backup or medical implants. I regret that omniscience is not within my remit. Would you like me to make further specific inquiries?" + +"No." Sirhan peers up at the bright flare of laser light, visible even through the soap-bubble membrane that holds in the breathable gas mix, and the trillions of liters of hot hydrogen in the canopy above it. "As long as you're sure she'll arrive before the ship?" Tuning his eyes to ultraviolet, he watches the emission spikes, sees the slow strobing of the low-bandwidth AM modulation that's all the starship can manage by way of downlink communication until it comes within range of the system manifold. It's sending the same tiresomely repetitive question about why it's being redirected to Saturn that it's been putting out for the past week, querying the refusal to supply terawatts of propulsion energy on credit. + +"Unless there's a spike in their power beam, you can be certain of that," City replies reassuringly. "And you can be certain also that your grandmother will revive comfortably." + +"One may hope so." To undertake the interplanetary voyage in corporeal person, at her age, without any upgrades or augmentation, must take courage, he decides. "When she wakes up, if I'm not around, ask her for an interview slot on my behalf. For the archives, of course." + +"It will be my pleasure." City bobs his head politely. + +"That will be all," Sirhan says dismissively, and the window into servantspace closes. Then he looks back up at the pinprick of glaring blue laser light near the zenith. /{Tough luck, Mom}/, he subvocalizes for his journal cache. Most of his attention is forked at present, focused on the rich historical windfall from the depths of the singularity that is coming his way, in the form of the thirty-year-old starwisp's Cartesian theatre. But he can still spare some schadenfreude for the family fortunes. /{All your assets belong to me, now. He smiles, inwardly. I'll just have to make sure they're put to a sensible use this time}/. + +* * * + +"I don't see why they're diverting us toward Saturn. It's not as if they can possibly have dismantled Jupiter already, is it?" asks Pierre, rolling the chilled beer bottle thoughtfully between fingers and thumb. + +"Why not you ask Amber?" replies the velociraptor squatting beside the log table. (Boris's Ukrainian accent is unimpeded by the dromaeosaurid's larynx; in point of fact, it's an affectation, one he could easily fix by sideloading an English pronunciation patch if he wanted to.) + +"Well." Pierre shakes his head. "She's spending all her time with that Slug, no multiplicity access, privacy ackles locked right down. I could get jealous." His voice doesn't suggest any deep concern. + +"What's to get jealous about? Just ask to fork instance to talk to you, make love, show boyfriend good time, whatever." + +"Hah!" Pierre chuckles grimly, then drains the last drops from the bottle into his mouth. He throws it away in the direction of a clump of cycads, then snaps his fingers; another one appears in its place. + +"Are two megaseconds out from Saturn in any case," Boris points out, then pauses to sharpen his inch-long incisors on one end of the table. Fangs crunch through timber like wet cardboard. "Grrrrn. Am seeing most /{peculiar}/ emission spectra from inner solar system. Foggy flying down bottom of gravity well. Am wondering, does ensmartening of dumb matter extend past Jovian orbit now?" + +"Hmm." Pierre takes a swig from the bottle and puts it down. "That might explain the diversion. But why haven't they powered up the lasers on the Ring for us? You missed that, too." For reasons unknown, the huge battery of launch lasers had shut down, some millions of seconds after the crew of the Field Circus had entered the router, leaving it adrift in the cold darkness. + +"Don't know why are not talking." Boris shrugged. "At least are still alive there, as can tell from the 'set course for Saturn, following thus-and-such orbital elements' bit. Someone is paying attention. Am telling you from beginning, though, turning entire solar system into computronium is real bad idea, long-term. Who knows how far has gone already?" + +"Hmm, again." Pierre draws a circle in the air. "Aineko," he calls, "are you listening?" + +"Don't bug me." A faint green smile appears in the circle, just the suggestion of fangs and needle-sharp whiskers. "I had an idea I was sleeping furiously." + +Boris rolls one turreted eye and drools on the tabletop. "Munch munch," he growls, allowing his saurian body-brain to put in a word. + +"What do you need to sleep for? This is a fucking sim, in case you hadn't noticed." + +"I /{enjoy}/ sleeping," replies the cat, irritably lashing its just-now-becoming-visible tail. "What do you want? Fleas?" + +"No thanks," Pierre says hastily. Last time he called Aineko's bluff the cat had filled three entire pocket universes with scurrying gray mice. One of the disadvantages of flying aboard a starship the size of a baked bean can full of smart matter was the risk that some of the passengers could get rather too creative with the reality control system. This Cretaceous kaffee klatsch was just Boris's entertainment partition; compared to some of the other simulation spaces aboard the *{Field Circus}*, it was downright conservative. "Look, do you have any updates on what's going on down-well? We're only twenty objective days out from orbital insertion, and there's so little to see -" + +"They're not sending us power." Aineko materializes fully now, a large orange-and-white cat with a swirl of brown fur in the shape on an @-symbol covering her ribs. For whatever reason, she plants herself on the table tauntingly close to Boris's velociraptor body's nose. "No propulsion laser means insufficient bandwidth. They're talking in Latin-1 text at 1200 baud, if you care to know." (Which is an insult, given the ship's multi-avabit storage capacity - one avabit is Avogadro's number of bits; about 1023 bytes, several billion times the size of the Internet in 2001 - and outrageous communications bandwidth.) "Amber says, come and see her now. Audience chamber. Informal, of course. I think she wants to discuss it." + +"Informal? Am all right without change bodies?" + +The cat sniffs. "/{I'm}/ wearing a real fur coat," it declares haughtily, "but no knickers." Then blinks out a fraction of a second ahead of the snicker- *{snack}* of Bandersnatch-like jaws. + +% watch snicker-*{snack}* error, watch http:// sequence if to fix + +"Come on," says Pierre, standing up. "Time to see what Her Majesty wants with us today." + +* * * + +_1 Welcome to decade eight, third millennium, when the effects of the phase-change in the structure of the solar system are finally becoming visible on a cosmological scale. + +_1 There are about eleven billion future-shocked primates in various states of life and undeath throughout the solar system. Most of them cluster where the interpersonal bandwidth is hottest, down in the water zone around old Earth. Earth's biosphere has been in the intensive care ward for decades, weird rashes of hot-burning replicators erupting across it before the World Health Organization can fix them - gray goo, thylacines, dragons. The last great transglobal trade empire, run from the arcologies of Hong Kong, has collapsed along with capitalism, rendered obsolete by a bunch of superior deterministic resource allocation algorithms collectively known as Economics 2.0. Mercury, Venus, Mars, and Luna are all well on the way to disintegration, mass pumped into orbit with energy stolen from the haze of free-flying thermoelectrics that cluster so thickly around the solar poles that the sun resembles a fuzzy red ball of wool the size of a young red giant. + +_1 Humans are just barely intelligent tool users; Darwinian evolutionary selection stopped when language and tool use converged, leaving the average hairy meme carrier sadly deficient in smarts. Now the brightly burning beacon of sapience isn't held by humans anymore - their cross-infectious enthusiasms have spread to a myriad of other hosts, several types of which are qualitatively better at thinking. At last count, there were about a thousand nonhuman intelligent species in Sol space, split evenly between posthumans on one side, naturally self-organizing AIs in the middle, and mammalian nonhumans on the other. The common mammal neural chassis is easily upgraded to human-style intelligence in most species that can carry, feed and cool a half kilogram of gray matter, and the descendants of a hundred ethics-challenged doctoral theses are now demanding equal rights. So are the unquiet dead; the panopticon-logged Net ghosts of people who lived recently enough to imprint their identities on the information age, and the ambitious theological engineering schemes of the Reformed Tiplerite Church of Latter-day Saints (who want to emulate all possible human beings in real time, so that they can have the opportunity to be saved). + +_1 The human memesphere is coming alive, although how long it remains recognizably human is open to question. The informational density of the inner planets is visibly converging on Avogadro's number of bits per mole, one bit per atom, as the deconstructed dumb matter of the inner planets (apart from Earth, preserved for now like a picturesque historic building stranded in an industrial park) is converted into computronium. And it's not just the inner system. The same forces are at work on Jupiter's moons, and those of Saturn, although it'll take thousands of years rather than mere decades to dismantle the gas giants themselves. Even the entire solar energy budget isn't enough to pump Jupiter's enormous mass to orbital velocity in less than centuries. The fast-burning primitive thinkers descended from the African plains apes may have vanished completely or transcended their fleshy architecture before the solar Matrioshka brain is finished. + +_1 It won't be long now ... + +* * * + +Meanwhile, there's a party brewing down in Saturn's well. + +Sirhan's lily-pad city floats inside a gigantic and nearly-invisible sphere in Saturn's upper atmosphere; a balloon kilometers across with a shell of fullerene-reinforced diamond below and a hot hydrogen gas bag above. It's one of several hundred multimegaton soap bubbles floating in the sea of turbulent hydrogen and helium that is the upper atmosphere of Saturn, seeded there by the Society for Creative Terraforming, subcontractors for the 2074 Worlds' Fair. + +The cities are elegant, grown from a conceptual seed a few megawords long. Their replication rate is slow (it takes months to build a bubble), but in only a couple of decades, exponential growth will have paved the stratosphere with human-friendly terrain. Of course, the growth rate will slow toward the end, as it takes longer to fractionate the metal isotopes out of the gas giant's turbid depths, but before that happens, the first fruits of the robot factories on Ganymede will be pouring hydrocarbons down into the mix. Eventually Saturn - cloud-top gravity a human-friendly 11 meters per second squared - will have a planet wide biosphere with nearly a hundred times the surface area of Earth. And a bloody good thing indeed this will be, for otherwise, Saturn is no use to anyone except as a fusion fuel bunker for the deep future when the sun's burned down. + +This particular lily-pad is carpeted in grass, the hub of the disk rising in a gentle hill surmounted by the glowering concrete hump of the Boston Museum of Science. It looks curiously naked, shorn of its backdrop of highways and the bridges of the Charles River - but even the generous kiloton dumb matter load-outs of the skyhooks that lifted it into orbit wouldn't have stretched to bringing its framing context along with it. Probably someone will knock up a cheap diorama backdrop out of utility fog, Sirhan thinks, but for now, the museum stands proud and isolated, a solitary redoubt of classical learning in exile from the fast-thinking core of the solar system. + +"Waste of money," grumbles the woman in black. "Whose stupid idea was this, anyway?" She jabs the diamond ferrule of her cane at the museum. + +"It's a statement," Sirhan says absently. "You know the kind, we've got so many newtons to burn we can send our cultural embassies wherever we like. The Louvre is on its way to Pluto, did you hear that?" + +"Waste of energy." She lowers her cane reluctantly and leans on it. Pulls a face: "It's not /{right}/." + +"You grew up during the second oil crunch, didn't you?" Sirhan prods. "What was it like then?" + +"What was it ...? Oh, gas hit fifty bucks a gallon, but we still had plenty for bombers," she says dismissively. "We knew it would be okay. If it hadn't been for those damn' meddlesome posthumanists -" Her wrinkled, unnaturally aged face scowls at him furiously from underneath hair that has faded to the color of rotten straw, but he senses a subtext of self-deprecating irony that he doesn't understand. "Like your grandfather, damn him. If I was young again I'd go and piss on his grave to show him what I think of what he did. If he /{has}/ a grave," she adds, almost fondly. + +*{Memo checkpoint: log family history}*, Sirhan tells one of his ghosts. As a dedicated historian, he records every experience routinely, both before it enters his narrative of consciousness - efferent signals are the cleanest - and also his own stream of selfhood, against some future paucity of memory. But his grandmother has been remarkably consistent over the decades in her refusal to adapt to the new modalities. + +"You're recording this, aren't you?" she sniffs. + +"I'm not recording it, Grandmama," he says gently, "I'm just preserving my memories for future generations." + +"Hah! We'll see," she says suspiciously. Then she surprises him with a bark of laughter, cut off abruptly: "No, /{you'll}/ see, darling. I won't be around to be disappointed." + +"Are you going to tell me about my grandfather?" asks Sirhan. + +"Why should I bother? I know you posthumans, you'll just go and ask his ghost yourself. Don't try to deny it! There are two sides to every story, child, and he's had more than his fair share of ears, the sleazebag. Leaving me to bring up your mother on my own, and nothing but a bunch of worthless intellectual property and a dozen lawsuits from the Mafiya to do it with. I don't know what I ever saw in him." Sirhan's voice-stress monitor detects a distinct hint of untruth in this assertion. "He's worthless trash, and don't you forget it. Lazy idiot couldn't even form just one start-up on his own: He had to give it all away, all the fruits of his genius." + +While she rambles on, occasionally punctuating her characterization with sharp jabs of the cane, Pamela leads Sirhan on a slow, wavering stroll that veers around one side of the museum, until they're standing next to a starkly engineered antique loading bay. "He should have tried /{real}/ communism instead," she harrumphs: "Put some steel into him, shake those starry-eyed visionary positive-sum daydreams loose. You knew where you were in the old times, and no mistake. Humans were real humans, work was real work, and corporations were just things that did as we told them. And then, when /{she}/ went to the bad, that was all his fault, too, you know." + +"She? You mean my, ah, mother?" Sirhan diverts his primary sensorium back to Pamela's vengeful muttering. There are aspects to this story that he isn't completely familiar with, angles he needs to sketch in so that he can satisfy himself that all is as it should be when the bailiffs go in to repossess Amber's mind. + +"He sent her our cat. Of all the mean-spirited, low, downright dishonest things he ever did, that was the worst part of it. That cat was /{mine}/, but he reprogrammed it to lead her astray. And it succeeded admirably. She was only twelve at the time, an impressionable age, I'm sure you'd agree. I was trying to raise her right. Children need moral absolutes, especially in a changing world, even if they don't like it much at the time. Self-discipline and stability, you can't function as an adult without them. I was afraid that, with all her upgrades, she'd never really get a handle on who she was, that she'd end up more machine than woman. But Manfred never really understood childhood, mostly on account of his never growing up. He always was inclined to meddle." + +"Tell me about the cat," Sirhan says quietly. One glance at the loading bay door tells him that it's been serviced recently. A thin patina of expended foglets have formed a snowy scab around its edges, flaking off like blue refractive candyfloss that leaves bright metal behind. "Didn't it go missing or something?" + +Pamela snorts. "When your mother ran away, it uploaded itself to her starwisp and deleted its body. It was the only one of them that had the guts - or maybe it was afraid I'd have it subpoenaed as a hostile witness. Or, and I can't rule this out, your grandfather gave it a suicide reflex. He was quite evil enough to do something like that, after he reprogrammed himself to think I was some kind of mortal enemy." + +"So when my mother died to avoid bankruptcy, the cat ... didn't stay behind? Not at all? How remarkable." Sirhan doesn't bother adding /{how suicidal}/. Any artificial entity that's willing to upload its neural state vector into a one-kilogram interstellar probe three-quarters of the way to Alpha Centauri without backup or some clear way of returning home has got to be more than a few methods short in the object factory. + +"It's a vengeful beast." Pamela pokes her stick at the ground sharply, mutters a command word, and lets go of it. She stands before Sirhan, craning her neck back to look up at him. "My, what a tall boy you are." + +"Person," he corrects, instinctively. "I'm sorry, I shouldn't presume." + +"Person, thing, boy, whatever - you're engendered, aren't you?" she asks, sharply, waiting until he nods reluctantly. "Never trust anyone who can't make up their mind whether to be a man or a woman," she says gloomily. "You can't rely on them." Sirhan, who has placed his reproductive system on hold until he needs it, bites his tongue. "That damn cat," his grandmother complains. "/{It}/ carried your grandfather's business plan to my daughter and spirited her away into the big black. /{It}/ poisoned her against me. /{It}/ encouraged her to join in that frenzy of speculative bubble-building that caused the market reboot that brought down the Ring Imperium. And now /{it}/ -" + +"Is it on the ship?" Sirhan asks, almost too eagerly. + +"It might be." She stares at him through narrowed eyes. "You want to interview it, too, huh?" + +Sirhan doesn't bother denying it. "I'm a historian, Grandmama. And that probe has been somewhere no other human sensorium has ever seen. It may be old news, and there may be old lawsuits waiting to feed on the occupants, but ..." He shrugs. "Business is business, and /{my}/ business lies in ruins." + +"Hah!" She stares at him for a moment, then nods, very slowly. She leans forward to rest both wrinkled hands atop her cane, joints like bags of shriveled walnuts: Her suit's endoskeleton creaks as it adjusts to accommodate her confidential posture. "You'll get yours, kid." The wrinkles twist into a frightening smile, sixty years of saved-up bitterness finally within spitting distance of a victim. "And I'll get what I want, too. Between us, your mother won't know what's hit her." + +* * * + +"Relax, between us your mother won't know what's hit her," says the cat, baring needle teeth at the Queen in the big chair - carved out of a single lump of computational diamond, her fingers clenched whitely on the sapphire-plated arms - her minions, lovers, friends, crew, shareholders, bloggers, and general factional auxiliaries spaced out around her. And the Slug. "It's just another lawsuit. You can deal with it." + +"Fuck 'em if they can't take a joke," Amber says, a trifle moodily. Although she's ruler of this embedded space, with total control over the reality model underlying it, she's allowed herself to age to a dignified twentysomething: Dressed casually in gray sweats, she doesn't look like the once-mighty ruler of a Jovian moon, or for that matter the renegade commander of a bankrupt interstellar expedition. "Okay, I think you'd better run that past me again. Unless anyone's got any suggestions?" + +"If you will excuse me?" asks Sadeq. "We have a shortage of insight here. I believe two laws were cited as absolute systemwide conventions - and how they convinced the ulama to go along with /{that}/ I would very much like to know - concerning the rights and responsibilities of the undead. Which, apparently, we are. Did they by any chance attach the code to their claim?" + +"Do bears shit in woods?" asks Boris, raptor-irascible, with an angry clatter of teeth. "Is full dependency graph and parse tree of criminal code crawling way up carrier's ass as we speak. Am drowning in lawyer gibberish! If you -" + +"Boris, can it!" Amber snaps. Tempers are high in the throne room. She didn't know what to expect when she arrived home from the expedition to the router, but bankruptcy proceedings weren't part of it. She doubts any of them expected anything like this. Especially not the bit about being declared liable for debts run up by a renegade splinter of herself, her own un-uploaded identity that had stayed home to face the music, aged in the flesh, married, gone bankrupt, died - /{incurred child support payments}/? "I don't hold you responsible for this," she added through gritted teeth, with a significant glance toward Sadeq. + +"This is truly a mess fit for the Prophet himself, peace be unto him, to serve judgment upon." Sadeq looks as shaken as she is by the implications the lawsuit raises. His gaze skitters around the room, looking anywhere but at Amber - and Pierre, her lanky toy-boy astrogator and bed warmer - as he laces his fingers. + +"Drop it. I said I /{don't}/ blame you." Amber forces a smile. "We're all tense from being locked in here with no bandwidth. Anyway, I smell Mother-dearest's hand underneath all this litigation. Sniff the glove. We'll sort a way out." + +"We could keep going." This from Ang, at the back of the room. Diffident and shy, she doesn't generally open her mouth without a good reason. "The *{Field Circus}* is in good condition, isn't it? We could divert back to the beam from the router, accelerate up to cruise speed, and look for somewhere to live. There must be a few suitable brown dwarfs within a hundred light-years ..." + +"We've lost too much sail mass," says Pierre. He's not meeting Amber's gaze either. There are lots of subtexts loose in this room, broken narratives from stories of misguided affections. Amber pretends not to notice his embarrassment. "We ejected half our original launch sail to provide the braking mirror at Hyundai ^{+4904}^/,{-56},, and almost eight megaseconds ago, we halved our area again to give us a final deceleration beam for Saturn orbit. If we did it again, we wouldn't have enough area left to repeat the trick and still decelerate at our final target." Laser-boosted light sails do it with mirrors; after boost, they can drop half the sail and use it to reverse the launch beam and direct it back at the ship, to provide deceleration. But you can only do it a few times before you run out of sail. "There's nowhere to run." + +"Nowhere to -" Amber stares at him through narrowed eyes. "Sometimes I really wonder about you, you know?" + +"I know you do." And Pierre really /{does}/ know, because he carries a little homunculoid around in his society of mind, a model of Amber far more accurate and detailed than any pre-upload human could possibly have managed to construct of a lover. (For her part, Amber keeps a little Pierre doll tucked away inside the creepy cobwebs of her head, part of an exchange of insights they took part in years ago. But she doesn't try to fit inside his head too often anymore - it's not good to be able to second-guess your lover every time.) "I also know that you're going to rush in and grab the bull by the, ah, no. Wrong metaphor. This is your mother we are discussing?" + +"My /{mother}/." Amber nods thoughtfully. "Where's Donna?" + +"I don't -" + +There's a throaty roar from the back, and Boris lurches forward with something in his mouth, an angry Bolex that flails his snout with its tripod legs. "Hiding in corners again?" Amber says disdainfully. + +"I am a camera!" protests the camera, aggrieved and self-conscious as it picks itself up off the floor. "I am -" + +Pierre leans close, sticks his face up against the fish-eye lens: "You're fucking well going to be a human being just this once. /{Merde}/!" + +The camera is replaced by a very annoyed blond woman wearing a safari suit and more light meters, lenses, camera bags, and microphones than a CNN outside broadcast unit. "Go fuck yourself!" + +"I don't like being spied on," Amber says sharply. "Especially as you weren't invited to this meeting. Right?" + +"I'm the archivist." Donna looks away, stubbornly refusing to admit anything. "/{You}/ said I should -" + +"Yes, /{well}/." Amber is embarrassed. But it's a bad idea to embarrass the Queen in her audience chamber. "You heard what we were discussing. What do /{you}/ know about my mother's state of mind?" + +"Absolutely nothing," Donna says promptly. She's clearly in a sulk and prepared to do no more than the minimum to help resolve the situation. "I only met her once. You look like her when you are angry, do you know that?" + +"I -" For once, Amber's speechless. + +"I'll schedule you for facial surgery," offers the cat. /{Sotto voce}/: "It's the only way to be sure." + +Normally, accusing Amber of any resemblance to her mother, however slight and passing, would be enough to trigger a reality quake within the upload environment that passes for the bridge of the *{Field Circus}*. It's a sign of how disturbed Amber is by the lawsuit that she lets the cat's impertinence slide. "What /{is}/ the lawsuit, anyway?" Donna asks, nosy as ever and twice as annoying: "I did not that bit see." + +"It's horrible," Amber says vehemently. + +"Truly evil," echoes Pierre. + +"Fascinating but wrong," Sadeq muses thoughtfully. + +"But it's still horrible!" + +"Yes, but what is it?" Donna the all-seeing-eye archivist and camera manqué asks. + +"It's a demand for settlement." Amber takes a deep breath. "Dammit, you might as well tell everyone - it won't stay secret for long." She sighs. "After we left, it seems my other half - my original incarnation, that is - got married. To Sadeq, here." She nods at the Iranian theologian, who looks just as bemused as she did the first time she heard this part of the story. "And they had a child. Then the Ring Imperium went bankrupt. The child is demanding maintenance payments from me, backdated nearly twenty years, on the grounds that the undead are jointly and severally liable for debts run up by their incarnations. It's a legal precedent established to prevent people from committing suicide temporarily as a way to avoid bankruptcy. Worse, the lien on my assets is measured in subjective time from a point at the Ring Imperium about nineteen months after our launch time - we've been in relativistic flight, so while my other half would be out from under it by now if she'd survived, I'm still subject to the payment order. But compound interest applies back home - /{that}/ is to stop people trying to use the twin's paradox as a way to escape liability. So, by being away for about twenty-eight years of wall-clock time, I've run up a debt I didn't know about to enormous levels. + +"This man, this son I've never met, theoretically owns the *{Field Circus}* several times over. And my accounts are wiped out - I don't even have enough money to download us into fleshbodies. Unless one of you guys has got a secret stash that survived the market crash after we left, we're all in deep trouble." + +* * * + +A mahogany dining table eight meters long graces the flagstoned floor of the huge museum gallery, beneath the skeleton of an enormous Argentinosaurus and a suspended antique Mercury capsule more than a century old. The dining table is illuminated by candlelight, silver cutlery and fine porcelain plates setting out two places at opposite ends. Sirhan sits in a high-backed chair beneath the shadow of a triceratops's rib cage. Opposite him, Pamela has dressed for dinner in the fashion of her youth. She raises her wineglass toward him. "Tell me about your childhood, why don't you?" she asks. High above them, Saturn's rings shimmer through the skylights, like a luminous paint splash thrown across the midnight sky. + +Sirhan has misgivings about opening up to her, but consoles himself with the fact that she's clearly in no position to use anything he tells her against him. "Which childhood would you like to know about?" he asks. + +"What do you mean, which?" Her face creases up in a frown of perplexity. + +"I had several. Mother kept hitting the reset switch, hoping I'd turn out better." It's his turn to frown. + +"She did, did she," breathes Pamela, clearly noting it down to hold as ammunition against her errant daughter. "Why do you think she did that?" + +"It was the only way she knew to raise a child," Sirhan says defensively. "She didn't have any siblings. And, perhaps, she was reacting against her own character flaws." /{When I have children there will be more than one}/, he tells himself smugly: when, that is, he has adequate means to find himself a bride, and adequate emotional maturity to activate his organs of procreation. A creature of extreme caution, Sirhan is not planning to repeat the errors of his ancestors on the maternal side. + +Pamela flinches: "it's not my fault," she says quietly. "Her father had quite a bit to do with that. But what - what different childhoods did you have?" + +"Oh, a fair number. There was the default option, with Mother and Father arguing constantly - she refused to take the veil and he was too stiff-necked to admit he was little more than a kept man, and between them, they were like two neutron stars locked in an unstable death spiral of gravity. Then there were my other lives, forked and reintegrated, running in parallel. I was a young goatherd in the days of the middle kingdom in Egypt, I remember that; and I was an all-American kid growing up in Iowa in the 1950s, and another me got to live through the return of the hidden imam - at least, his parents thought it was the hidden imam - and -" Sirhan shrugs. "Perhaps that's where I acquired my taste for history." + +"Did your parents ever consider making you a little girl?" asks his grandmother. + +"Mother suggested it a couple of times, but Father forbade it." /{Or rather, decided it was unlawful}/, he recalls. "I had a very conservative upbringing in some ways." + +"I wouldn't say that. When I was a little girl, that was all there was; none of these questions of self-selected identity. There was no escape, merely escapism. Didn't you ever have a problem knowing who you were?" + +The starters arrive, diced melon on a silver salver. Sirhan waits patiently for his grandmama to chivvy the table into serving her. "The more people you are, the more you know who /{you}/ are," says Sirhan. "You learn what it's like to be other people. Father thought that perhaps it isn't good for a man to know too much about what it's like to be a woman." /{And Grandfather disagreed, but you already know that}/, he adds for his own stream of consciousness. + +"I couldn't agree more." Pamela smiles at him, an expression that might be that of a patronizing elder aunt if it wasn't for the alarming sharkishness of her expression - or is it playfulness? Sirhan covers his confusion by spooning chunks of melon into his mouth, forking temporary ghosts to peruse dusty etiquette manuals and warn him if he's about to commit some faux pas. "So, how did you enjoy your childhoods?" + +"Enjoy isn't a word I would use," he replies as evenly as he can, laying down his spoon so he doesn't spill anything. /{As if childhood is something that ever ends}/, he thinks bitterly. Sirhan is considerably less than a gigasecond old and confidently expects to exist for at least a terasecond - if not in exactly this molecular configuration, then at least in some reasonably stable physical incarnation. And he has every intention of staying young for that entire vast span - even into the endless petaseconds that might follow, although by then, megayears hence, he speculates that issues of neoteny will no longer interest him. "It's not over yet. How about you? Are you enjoying your old age, Grandmama?" + +Pamela almost flinches, but keeps iron control of her expression. The flush of blood in the capillaries of her cheeks, visible to Sirhan through the tiny infrared eyes he keeps afloat in the air above the table, gives her away. "I made some mistakes in my youth, but I'm enjoying it fine nowadays," she says lightly. + +"It's your revenge, isn't it?" Sirhan asks, smiling and nodding as the table removes the entrees. + +"Why, you little -" She stares at him rather than continuing. A very bleak stare it is, too. "What would you know about revenge?" she asks. + +"I'm the family historian." Sirhan smiles humorlessly. "I lived from two to seventeen years several hundred times over before my eighteenth birthday. It was that reset switch, you know. I don't think Mother realized my primary stream of consciousness was journaling everything." + +"That's monstrous." Pamela picks up her wineglass and takes a sip to cover her confusion. Sirhan has no such retreat - grape juice in a tumbler, unfermented, wets his tongue. "I'd /{never}/ do something like that to any child of mine." + +"So why won't you tell me about your childhood?" asks her grandson. "For the family history, of course." + +"I'll -" She puts her glass down. "You intend to write one," she states. + +"I'm thinking about it." Sirhan sits up. "An old-fashioned book covering three generations, living through interesting times," he suggests. "A work of postmodern history, the incoherent school at that - how do you document people who fork their identities at random, spend years dead before reappearing on the stage, and have arguments with their own relativistically preserved other copy? I could trace the history further, of course - if you tell me about /{your}/ parents, although I am certain they aren't around to answer questions directly - but we reach the boring dumb matter slope back to the primeval soup surprisingly fast if we go there, don't we? So I thought that perhaps as a narrative hook I'd make the offstage viewpoint that of the family's robot cat. (Except the bloody thing's gone missing, hasn't it?) Anyway, with so much of human history occupying the untapped future, we historians have our work cut out recording the cursor of the present as it logs events. So I might as well start at home." + +"You're set on immortalism." Pamela studies his face. + +"Yes," he says idly. "Frankly, I can understand your wanting to grow old out of a desire for revenge, but pardon me for saying this, I have difficulty grasping your willingness to follow through with the procedure! Isn't it awfully painful?" + +"Growing old is /{natural}/," growls the old woman. "When you've lived long enough for all your ambitions to be in ruins, friendships broken, lovers forgotten or divorced acrimoniously, what's left to go on for? If you feel tired and old in spirit, you might as well be tired and old in body. Anyway, wanting to live forever is immoral. Think of all the resources you're taking up that younger people need! Even uploads face a finite data storage limit after a time. It's a monstrously egotistical statement, to say you intend to live forever. And if there's one thing I believe in, it's public service. Duty: the obligation to make way for the new. Duty and control." + +Sirhan absorbs all this, nodding slowly to himself as the table serves up the main course - honey-glazed roast long pork with sautéed potatoes a la gratin and carrots Debussy - when there's a loud *{bump}* from overhead. + +"What's that?" Pamela asks querulously. + +"One moment." Sirhan's vision splits into a hazy kaleidoscope view of the museum hall as he forks ghosts to monitor each of the ubiquitous cameras. He frowns; something is moving on the balcony, between the Mercury capsule and a display of antique random-dot stereoisograms. "Oh dear. Something seems to be loose in the museum." + +"Loose? What do you mean, loose?" An inhuman shriek splits the air above the table, followed by a crash from upstairs. Pamela stands up unsteadily, wiping her lips with her napkin. "Is it safe?" + +"No, it isn't safe." Sirhan fumes. "It's disturbing my meal!" He looks up. A flash of orange fur shows over the balcony, then the Mercury capsule wobbles violently on the end of its guy wires. Two arms and a bundle of rubbery /{something}/ covered in umber hair lurches out from the handrail and casually grabs hold of the priceless historical relic, then clambers inside and squats on top of the dummy wearing Al Sheperd's age-cracked space suit. "It's an /{ape}/! City, I say, City! What's a monkey doing loose in my dinner party?" + +"I am most deeply sorry, sir, but I don't know. Would sir care to identify the monkey in question?" replies City, which for reasons of privacy, has manifested itself as a bodiless voice. + +There's a note of humor in City's tone that Sirhan takes deep exception to. "What do you mean? Can't you see it?" he demands, focusing on the errant primate, which is holed up in the Mercury capsule dangling from the ceiling, smacking its lips, rolling its eyes, and fingering the gasket around the capsule's open hatch. It hoots quietly to itself, then leans out of the open door and moons over the table, baring its buttocks. "Get back!" Sirhan calls to his grandmother, then he gestures at the air above the table, intending to tell the utility fog to congeal. Too late. The ape farts thunderously, then lets rip a stream of excrement across the dining table. Pamela's face is a picture of wrinkled disgust as she holds her napkin in front of her nose. "Dammit, solidify, will you!" Sirhan curses, but the ubiquitous misty pollen-grain-sized robots refuse to respond. + +"What's your problem? Invisible monkeys?" asks City. + +"Invisible -" he stops. + +"Can't you see what it did?" Pamela demands, backing him up. "It just defecated all over the main course!" + +"I see nothing," City says uncertainly. + +"Here, let me help you." Sirhan lends it one of his eyes, rolls it to focus on the ape, which is now reaching lazy arms around the hatch and patting down the roof of the capsule, as if hunting for the wires' attachment points. + +"Oh dear," says City, "I've been hacked. That's not supposed to be possible." + +"Well it fucking /{is}/," hisses Pamela. + +"Hacked?" Sirhan stops trying to tell the air what to do and focuses on his clothing instead. Fabric reweaves itself instantly, mapping itself into an armored airtight suit that raises a bubble visor from behind his neck and flips itself shut across his face. "City please supply my grandmama with an environment suit /{now}/. Make it completely autonomous." + +The air around Pamela begins to congeal in a blossom of crystalline security, as a sphere like a giant hamster ball precipitates out around her. "If you've been hacked, the first question is, who did it," Sirhan states. "The second is 'why,' and the third is 'how.'" He edgily runs a self-test, but there's no sign of inconsistencies in his own identity matrix, and he has hot shadows sleeping lightly at scattered nodes across as distance of half a dozen light-hours. Unlike pre-posthuman Pamela, he's effectively immune to murder-simple. "If this is just a prank -" + +Seconds have passed since the orang-utan got loose in the museum, and subsequent seconds have passed since City realized its bitter circumstance. Seconds are long enough for huge waves of countermeasures to sweep the surface of the lily-pad habitat. Invisibly small utility foglets are expanding and polymerizing into defenses throughout the air, trapping the thousands of itinerant passenger pigeons in midflight, and locking down every building and every person who walks the paths outside. City is self-testing its trusted computing base, starting with the most primitive secured kernel and working outward. Meanwhile Sirhan, with blood in his eye, heads for the staircase, with the vague goal of physically attacking the intruder. Pamela retreats at a fast roll, tumbling toward the safety of the mezzanine floor and a garden of fossils. "Who do you think you are, barging in and shitting on my supper?" Sirhan yells as he bounds up the stairs. "I want an explanation! Right now!" + +The orang-utan finds the nearest cable and gives it a yank, setting the one-ton capsule swinging. It bares its teeth at Sirhan in a grin. "Remember me?" it asks, in a sibilant French accent. + +"Remember -" Sirhan stops dead. "Tante Annette? /{What}/ are you doing in that orangutan?" + +"Having minor autonomic control problems." The ape grimaces wider, then bends one arm sinuously and scratches at its armpit. "I am sorry, I installed myself in the wrong order. I was only meaning to say hello and pass on a message." + +"What message?" Sirhan demands. "You've upset my grandmama, and if she finds out you're here -" + +"She won't; I'll be gone in a minute." The ape - Annette - sits up. "Your grandfather salutes you and says he will be visiting shortly. In the person, that is. He is very keen to meet your mother and her passengers. That is all. Have you a message for him?" + +"Isn't he dead?" Sirhan asks, dazed. + +"No more than I am. And I'm overdue. Good day!" The ape swings hand over hand out of the capsule, then lets go and plummets ten meters to the hard stone floor below. Its skull makes a noise like a hard-boiled egg impacting concrete. + +"Oh dear," Sirhan breathes heavily. "City!" + +"Yes, oh master?" + +"Remove that body," he says, pointing over the balcony. "I'll trouble you not to disturb my grandmother with any details. In particular, don't tell her it was Annette. The news may upset her." /{The perils of having a long-lived posthuman family}/, he thinks; /{too many mad}/ aunts in the space capsule. "If you can find a way to stop Auntie 'Nette from growing any more apes, that might be a good idea." A thought strikes him. "By the way, do you know when my grandfather is due to arrive?" + +"Your grandfather?" asks City: "Isn't he dead?" + +Sirhan looks over the balcony, at the blood-seeping corpse of the intruder. "Not according to his second wife's latest incarnation." + +* * * + +Funding the family reunion isn't going to be a problem, as Amber discovers when she receives an offer of reincarnation good for all the passengers and crew of the *{Field Circus}*. + +She isn't sure quite where the money is coming from. Presumably it's some creaky financial engine designed by Dad, stirring from its bear-market bunker for the first time in decades to suck dusty syndication feeds and liquidate long-term assets held against her return. She's duly grateful - even fervently so - for the details of her own impecunious position grow more depressing the more she learns about them. Her sole asset is the *{Field Circus}*, a thirty-years-obsolete starwisp massing less than twenty kilograms including what's left of its tattered sail, along with its cargo of uploaded passengers and crew. Without the farsighted trust fund that has suddenly chugged into life, she'd be stranded in the realm of ever-circling leptons. But now the fund has sent her its offer of incarnation, she's got a dilemma. Because one of the *{Field Circus's}* passengers has never actually had a meatspace body ... + +Amber finds the Slug browsing quietly in a transparent space filled with lazily waving branches that resemble violet coral fans. They're a ghost-memory of alien life, an order of thermophilic quasi fungi with hyphae ridged in actin/myosin analogues, muscular and slippery filter feeders that eat airborne unicellular organisms. The Slug itself is about two meters long and has a lacy white exoskeleton of curves and arcs that don't repeat, disturbingly similar to a Penrose tiling. Chocolate brown organs pulse slowly under the skeleton. The ground underfoot is dry but feels swampy. + +Actually, the Slug is a surgical disguise. Both it and the quasi-fungal ecosystem have been extinct for millions of years, existing only as cheap stage props in an interstellar medicine show run by rogue financial instruments. The Slug itself is one such self-aware scam, probably a pyramid scheme or even an entire compressed junk bond market in heavy recession, trying to hide from its creditors by masquerading as a life-form. But there's a problem with incarnating itself down in Sirhan's habitat - the ecosystem it evolved for is a cool Venusiform, thirty atmospheres of saturated steam baked under a sky the color of hot lead streaked with yellow sulphuric acid clouds. The ground is mushy because it's melting, not because it's damp. + +"You're going to have to pick another somatotype," Amber explains, laboriously rolling her interface around the red-hot coral reef like a giant soap bubble. The environmental interface is transparent and infinitely thin, a discontinuity in the physics model of the simulation space, mapping signals between the human-friendly environment on one side and the crushing, roasting hell on the other. "This one is simply not compatible with any of the supported environments where we're going." + +"I am not understanding. Surely I can integrate with the available worlds of our destination?" + +"Uh, things don't work that way outside cyberspace." Suddenly Amber is at a bit of a loss. "The physics model /{could}/ be supported, but the energy input to do so would be prohibitive, and you would not be able to interact as easily with other physics models as we can now." She forks a ghost, demonstrates a transient other-Amber in a refrigerated tank rolling across the Slug's backyard, crushing coral and hissing and clanking noisily. "You'd be like this." + +"Your reality is badly constructed, then," the Slug points out. + +"It's not constructed at all, it just evolved, randomly." Amber shrugs. "We can't exercise the same level of control over the underlying embedded context that we can over this one. I can't simply magic you an interface that will let you bathe in steam at three hundred degrees." + +"Why not?" asks the Slug. Translation wetware adds a nasty, sharp rising whine to the question, turning it into a demand. + +"It's a privilege violation," Amber tries to explain. "The reality we're about to enter is, uh, provably consistent. It has to be, because it's consistent and stable, and if we could create new local domains with different rules, they might propagate uncontrollably. It's not a good idea, believe me. Do you want to come with us or not?" + +"I have no alternative," the Slug says, slightly sulkily. "But do you have a body I can use?" + +"I think -" Amber stops, suddenly. She snaps her fingers. "Hey, cat!" + +A Cheshire grin ripples into view, masked into the domain wall between the two embedded realities. "Hey, human." + +"Whoa!" Amber takes a backward step from the apparition. "Our friend here's got a problem, no suitable downloadable body. Us meat puppets are all too closely tied to our neural ultrastructure, but you've got a shitload of programmable gate arrays. Can we borrow some?" + +"You can do better than that." Aineko yawns, gathering substance by the moment. The Slug is rearing up and backing away like an alarmed sausage: Whatever it perceives in the membrane seems to frighten it. "I've been designing myself a new body. I figured it was time to change my style for a while. Your corporate scam artist here can borrow my old template until something better comes up. How's that?" + +"Did you hear that?" Amber asks the Slug. "Aineko is kindly offering to donate her body to you. Will that do?" Without waiting, she winks at her cat and taps her heels together, fading out with a whisper and a smile: "See you on the other side ..." + +* * * + +It takes several minutes for the *{Field Circus}*'s antique transceiver to download the dozens of avabits occupied by the frozen state vectors of each of the people running in its simulation engines. Tucked away with most of them is a resource bundle consisting of their entire sequenced genome, a bunch of phenotypic and proteome hint markers, and a wish list of upgrades. Between the gene maps and the hints, there's enough data to extrapolate a meat machine. So the festival city's body shop goes to work turning out hacked stem cells and fabbing up incubators. + +It doesn't take very long to reincarnate a starshipful of relativity-lagged humans these days. First, City carves out skeletons for them (politely ignoring a crudely phrased request to cease and desist from Pamela, on the grounds that she has no power of attorney), then squirts osteoclasts into the spongy ersatz bone. They look like ordinary human stem cells at a distance, but instead of nuclei they have primitive pinpricks of computronium, blobs of smart matter so small they're as dumb as an ancient Pentium, reading a control tape that is nevertheless better structured than anything Mother Nature evolved. These heavily optimized fake stem cells - biological robots in all but name - spawn like cancer, ejecting short-lived anucleated secondary cells. Then City infuses each mess of quasi-cancerous tissue with a metric shitload of carrier capsids, which deliver the /{real}/ cellular control mechanisms to their target bodies. Within a megasecond, the almost random churning of the construction 'bots gives way to a more controlled process as nanoscale CPUs are replaced by ordinary nuclei and eject themselves from their host cells, bailing out via the half-formed renal system - except for those in the central nervous system, which have a final job to do. Eleven days after the invitation, the first passengers are being edited into the pattern of synaptic junctions inside the newly minted skulls. + +(This whole process is tediously slow and laughably obsolescent technology by the standards of the fast-moving core. Down there, they'd just set up a wake shield in orbit, chill it down to a fractional Kelvin, whack two coherent matter beams together, teleport some state information into place, and yank the suddenly materialized meatbody in through an airlock before it has time to asphyxiate. But then again, down in the hot space, they don't have much room for flesh anymore ...) + +Sirhan doesn't pay much attention to the pseudocancers fermenting and churning in the row of tanks that lines the Gallery of the Human Body in the Bush wing of the museum. Newly formed, slowly unskeletonizing corpses - like a time-lapse process of decay with a finger angrily twisting the dial into high-speed reverse - is both distasteful and aesthetically displeasing to watch. Nor do the bodies tell him anything about their occupants. This sort of stuff is just a necessary prequel to the main event, a formal reception and banquet to which he has devoted the full-time attention of four ghosts. + +He could, given a few less inhibitions, go Dumpster-diving in their mental archives, but that's one of the big taboos of the post-wetware age. (Spy agencies went meme-profiling and memory-mining in the third and fourth decades, gained a thought police rap sheet, and spawned a backlash of deviant mental architectures resilient to infowar intrusions. Now the nations that those spook institutions served no longer exist, their very landmasses being part of the orbiting nöosphere construction project that will ultimately turn the mass of the entire solar system into a gigantic Matrioshka brain. And Sirhan is left with an uneasy loyalty to the one great new taboo to be invented since the end of the twentieth century - freedom of thought.) + +So, to indulge his curiosity, he spends most of his waking fleshbody hours with Pamela, asking her questions from time to time and mapping the splenetic overspill of her memeome into his burgeoning family knowledge base. + +"I wasn't always this bitter and cynical," Pamela explains, waving her cane in the vague direction of the cloudscape beyond the edge of the world and fixing Sirhan with a beady stare. (He's brought her out here hoping that it will trigger another cascade of memories, sunsets on honeymoon island resorts and the like, but all that seems to be coming up is bile.) "It was the successive betrayals. Manfred was the first, and the worst in some ways, but that little bitch Amber hurt me more, if anything. If you ever have children, be careful to hold something back for yourself; because if you don't, when they throw it all in your face, you'll feel like dying. And when they're gone, you've got no way of patching things up." + +"Is dying inevitable?" asks Sirhan, knowing damn well that it isn't, but more than happy to give her an excuse to pick at her scabbed-over love wound: He more than half suspects she's still in love with Manfred. This is /{great}/ family history, and he's having the time of his flinty-hearted life leading her up to the threshold of the reunion he's hosting. + +"Sometimes I think death is even more inevitable than taxes," his grandmother replies bleakly. "Humans don't live in a vacuum; we're part of a larger pattern of life." She stares out across the troposphere of Saturn, where a thin rime of blown methane snow catches the distant sunrise in a ruby-tinted fog. "The old gives way to the new," She sighs, and tugs at her cuffs. (Ever since the incident with the gate crashing ape, she's taken to wearing an antique formal pressure suit, all clinging black spidersilk woven with flexible pipes and silvery smart sensor nets.) "There's a time to get out of the way of the new, and I think I passed it sometime ago." + +"Um," says Sirhan, who is somewhat surprised by this new angle in her lengthy, self-justifying confession: "but what if you're just saying this because you /{feel}/ old? If it's just a physiological malfunction, we could fix it and you'd -" + +"/{No}/! I've got a feeling that life prolongation is morally wrong, Sirhan. I'm not passing judgment on you, just stating that I think it's wrong for me. It's immoral because it blocks up the natural order, keeps us old cobweb strands hanging around and getting in you young things' way. And then there are the theological questions. If you try to live forever, you never get to meet your maker." + +"Your maker? Are you a theist, then?" + +"I - think so." Pamela is silent for a minute. "Although there are so many different approaches to the subject that it's hard to know which version to believe. For a long time, I was secretly afraid your grandfather might actually have had the answers. That I might have been wrong all along. But now -" She leans on her cane. "When he announced that he was uploading, I figured out that all he really had was a life-hating antihuman ideology he'd mistaken for a religion. The rapture of the nerds and the heaven of the AIs. Sorry, no thanks; I don't buy it." + +"Oh." Sirhan squints out at the cloudscape. For a moment, he thinks he can see something in the distant mist, an indeterminate distance away - it's hard to distinguish centimeters from megameters, with no scale indicator and a horizon a continental distance away - but he's not sure what it is. Maybe another city, mollusk-curved and sprouting antennae, a strange tail of fabricator nodes wavering below and beneath it. Then a drift of cloud hides it for a moment, and, when it clears the object is gone. "What's left, then? If you don't really believe in some kind of benign creator, dying must be frightening. Especially as you're doing it so slowly." + +Pamela smiles skeletally, a particularly humorless expression. "It's perfectly natural, darling! You don't need to believe in God to believe in embedded realities. We use them every day, as mind tools. Apply anthropic reasoning and isn't it clear that our entire universe is probably a simulation? We're living in the early epoch of the universe. Probably this" - she prods at the spun-diamond inner wall of the bubble that holds in the precarious terrestrial atmosphere, holding out the howling cryogenic hydrogen and methane gales of Saturn - "is but a simulation in some ancient history engine's panopticon, rerunning the sum of all possible origins of sentience, a billion trillion megayears down the line. Death will be like waking up as someone bigger, that's all." Her grin slides away. "And if not, I'll just be a silly old fool who deserves the oblivion she yearns for." + +"Oh, but -" Sirhan stops, his skin crawling. /{She may be mad}/, he realizes abruptly. /{Not clinically insane, just at odds with the entire universe. Locked into a pathological view of}/ her own role in /{reality.}/ "I'd hoped for a reconciliation," he says quietly. "Your extended family has lived through some extraordinary times. Why spoil it with acrimony?" + +"Why spoil it?" She looks at him pityingly: "It was spoiled to begin with, dear, too much selfless sacrifice and too little skepticism. If Manfred hadn't wanted so badly not to be /{human}/, and if I'd learned to be a bit more flexible in time, we might still -" She trails off. "That's odd." + +"What is?" + +Pamela raises her cane and points out into the billowing methane thunderclouds, her expression puzzled. "I'll swear I saw a lobster out there ..." + +* * * + +Amber awakens in the middle of the night in darkness and choking pressure, and senses that she's drowning. For a moment she's back in the ambiguous space on the far side of the router, a horror of crawling instruments tracing her every experience back to the nooks and crannies of her mind; then her lungs turn to glass and shatter, and she's coughing and wheezing in the cold air of the museum at midnight. + +The hard stone floor beneath her, and an odd pain in her knees, tells her that she's not aboard the *{Field Circus}* anymore. Rough hands hold her shoulders up as she vomits a fine blue mist, racked by a coughing fit. More bluish liquid is oozing from the pores of the skin on her arms and breasts, evaporating in strangely purposeful streamers. "Thank you," she finally manages to gasp: "I can breathe now." + +She sits back on her heels, realizes she's naked, and opens her eyes. Everything's confusingly strange, even though it shouldn't be. There's a moment of resistance as if her eyelids are sealed - then they respond. It all feels strangely familiar to her, like waking up again inside a house she grew up in and moved away from years ago. But the scene around her is hardly one to inspire confidence. Shadows lie thick and deep across ovoid tanks filled with an anatomist's dream, bodies in various nightmarish stages of assembly. And sitting in the middle of them, whence it has retreated after letting go of her shoulders, is a strangely misshapen person - also nude, but for a patchy coat of orange hair. + +"Are you awake yet, ma chérie?" asks the orang-utan. + +"Um." Amber shakes her head, cautiously, feeling the drag of damp hair, the faint caress of a breeze - she reaches out with another sense and tries to grab hold of reality, but it slithers away, intransigent and unembedded. Everything around her is so solid and immutable that, for a moment, she feels a stab of claustrophobic panic: Help! I'm trapped in the real universe! Another quick check reassures her that she's got access to /{something}/ outside her own head, and the panic begins to subside: Her exocortex has migrated successfully to this world. "I'm in a museum? On Saturn? Who are you - have we met?" + +"Not in person," the ape says carefully. "We 'ave corresponded. Annette Dimarcos." + +"Auntie -" A flood of memories rattle Amber's fragile stream of consciousness apart, forcing her to fork repeatedly until she can drag them together. Annette, in a recorded message: /{Your father sends you this escape package}/. The legal key to her mother's gilded custodial cage. Freedom a necessity. "Is Dad here?" she asks hopefully, even though she knows full well that here in the real world at least thirty-five years have passed in linear time: In a century where ten years of linear time is enough for several industrial revolutions, that's a lot of water under the bridge. + +"I am not sure." The orang-utan blinks lazily, scratches at her left forearm, and glances round the chamber. "He might be in one of these tanks, playing a shell game. Or he might be leaving well enough alone until the dust settles." She turns back to stare at Amber with big, brown, soulful eyes. "This is not to be the reunion you were hoping for." + +"Not -" Amber takes a deep breath, the tenth or twelfth that these new lungs have inspired: "What's with the body? You used to be human. And what's going on?" + +"I still /{am}/ human, where it counts," says Annette. "I use these bodies because they are good in low gravity, and they remind me that meatspace is no longer where I live. And for another reason." She gestures fluidly at the open door. "You will find big changes. Your son has organized -" + +"/{My}/ son." Amber blinks. "Is this the one who's suing me? Which version of me? How long ago?" A torrent of questions stream through her mind, exploding out into structured queries throughout the public sections of mindspace that she has access to. Her eyes widen as she absorbs the implications. "Oh /{shit}/! Tell me she isn't here already!" + +"I am very much afraid that she is," says Annette. "Sirhan is a strange child: He takes after his /{grandmère}/. Who he, of course, invited to his party." + +"His /{party}/?" + +"Why, yes! Hasn't he told you what this is about? It's his party. To mark the opening of his special institution. The family archive. He's setting the lawsuit aside, at least for the duration. That's why everybody is here - even me." The ape-body smirks at her: "I'm afraid he's rather disappointed by my dress." + +"Tell me about this library," Amber says, narrowing her eyes. "And about this son of mine whom I've never met, by a father I've never fucked." + +"What, you would know everything?" asks Annette. + +"Yeah." Amber pushes herself creakily upright. "I need some clothes. And soft furniture. And where do I get a drink around here?" + +"I'll show you," says the orang-utan, unfolding herself in a vertical direction like a stack of orange furry inner tubes. "Drinks, first." + +* * * + +While the Boston Museum of Science is the main structure on the lily-pad habitat, it's not the only one: just the stupidest, composed of dumb matter left over from the pre-enlightened age. The orang-utan leads Amber through a service passage and out into the temperate night, naked by ringlight. The grass is cool beneath her feet, and a gentle breeze blows constantly out toward the recirculators at the edge of the worldlet. She follows the slouching orange ape up a grassy slope, under a weeping willow, round a three-hundred-and-ninety-degree bend that flashes the world behind them into invisibility, and into a house with walls of spun cloud stuff and a ceiling that rains moonlight. + +"What is this?" Amber asks, entranced. "Some kind of aerogel?" + +"No -" Annette belches, then digs a hand into the floor and pulls up a heap of mist. "Make a chair," she says. It solidifies, gaining form and texture until a creditable Queen Anne reproduction stands in front of Amber on spindly legs. "And one for me. Skin up, pick one of my favorite themes." The walls recede slightly and harden, extruding paint and wood and glass. "That's it." The ape grins at Amber. "You are comfortable?" + +"But I -" Amber stops. She glances at the familiar mantelpiece, the row of curios, the baby photographs forever glossy on their dye-sub media. It's her childhood bedroom. "You brought the whole thing? Just for me?" + +"You can never tell with future shock." Annette shrugs and reaches a limber arm around the back of her neck to scratch. "We are utility fog using, for most purposes out here, peer-to-peer meshes of multiarmed assemblers that change conformation and vapor/solid phase at command. Texture and color are all superfice, not reality. But yes, this came from one of your mother's letters to your father. She brought it here, for you to surprise. If only it is ready in time." Lips pull back from big, square, foliage-chewing teeth in something that might be a smile in a million years' time. + +"You, I - I wasn't expecting. This." Amber realizes she's breathing rapidly, a near-panic reflex. The mere proximity of her mother is enough to give her unpleasant reactions. Annette is all right, Annette is cool. And her father is the trickster-god, always hiding in your blind spot to leap out and shower you with ambiguous gifts. But Pamela tried to mold Amber in her own image as a child; and despite all the traveling she's done since then, and all the growing up, Amber harbors an unreasonable claustrophobic fear of her mother. + +"Don't be unhappy," Annette says warmly. "I this you show to convince you, she will try to disturb you. It is a sign of weakness, she lacks the courage of her convictions." + +"She does?" This is news to Amber, who leans forward to listen. + +"Yes. She is an old and bitter woman, now. The years have not been easy for her. She perhaps intends to use her unrepaired senescence as a passive suicide weapon by which to hold us blameworthy, inflicting guilt for her mistreatment, but she is afraid of dying all the same. Your reaction, should it be unhappy, will excuse and encourage her selfishness. Sirhan colludes, unknowing, the idiot child. /{He}/ thinks the universe of her and thinks by helping her die he is helping her achieve her goals. He has never met an adult walking backward toward a cliff before." + +"Backward." Amber takes a deep breath. "You're telling me Mom is so unhappy she's trying to kill herself by growing /{old}/? Isn't that a bit slow?" + +Annette shakes her head lugubriously. "She's had fifty years to practice. You have been away twenty-eight years! She was thirty when she bore you. Now she is over eighty, and a telomere refusenik, a charter member of the genome conservation front. To accept a slow virus purge and aging reset would be to lay down a banner she has carried for half a century. To accept uploading, that, too, is wrong in her mind: She will not admit her identity is a variable, not a constant. She came out here in a can, frozen, with more radiation damage. She is not going back home. This is where she plans to end her days. Do you see? /{That}/ is why you were brought here. That, and because of the bailiffs who have bought title to your other self's business debts. They are waiting for you in Jupiter system with warrants and headsuckers to extract your private keys." + +"She's cornered me!" + +"Oh, I would not /{say}/ that. We all change our convictions sometime or other, perhaps. She is inflexible, she will not bend; but she is not stupid. Nor is she as vindictive as perhaps she herself believes. She thinks she must a scorned woman be, even though there is more to her than that. Your father and I, we -" + +"Is he still alive?" Amber demands eagerly, half-anxious to know, half- wishing she could be sure the news won't be bad. + +"Yes." Annette grins again, but it's not a happy expression, more a baring of teeth at the world. "As I was saying, your father and I, we have tried to help her. Pamela denies him. He is, she says, not a man. No more so am I myself a woman? No, but she'll still talk to me. /{You}/ will do better. But his assets, they are spent. He is not a rich man this epoch, your father." + +"Yeah, but." Amber nods to herself. "He may be able to help me." + +"Oh? How so?" + +"You remember the original goal of the *{Field Circus}*? The sapient alien transmission?" + +"Yes, of course." Annette snorts. "Junk bond pyramid schemes from credulous saucer wisdom airheads." + +Amber licks her lips. "How susceptible to interception are we here?" + +"Here?" Annette glances round. "Very. You can't maintain a habitat in a nonbiosphere environment without ubiquitous surveillance." + +"Well, then ..." + +Amber dives inward, forks her identity, collects a complex bundle of her thoughts and memories, marshals them, offers Annette one end of an encryption tunnel, then stuffs the frozen mindstorm into her head. Annette sits still for approximately ten seconds, then shudders and whimpers quietly. "You must ask your father," she says, growing visibly agitated. "I must leave, now. I should not have known that! It is dynamite, you see. /{Political}/ dynamite. I must return to my primary sister-identity and warn her." + +"Your - wait!" Amber stands up as fast as her ill-coordinated body will let her, but Annette is moving fast, swarming up a translucent ladder in the air. + +"Tell Manfred!" calls her aunt through the body of an ape: "Trust no one else!" She throws another packet of compressed, encrypted memories down the tunnel to Amber; then, a moment later, the orange skull touches the ceiling and dissolves, a liquid flow of dissociating utility foglets letting go of one another and dispersing into the greater mass of the building that spawned the fake ape. + +* * * + +Snapshots from the family album: /{While you were gone ...}/ + +_* Amber, wearing a brocade gown and a crown encrusted with diamond processors and external neural taps, her royal party gathered around her, attends the pan-Jovian constitutional conference with the majesty of a confirmed head of state and ruler of a small inner moon. She smiles knowingly at the camera viewpoint, with the professional shine that comes from a good public relations video filter. "We are very happy to be here," she says, "and we are pleased that the commission has agreed to lend its weight to the continued progress of the Ring Imperium's deep-space program." + +_* A piece of dumb paper, crudely stained with letters written in a faded brown substance - possibly blood - says "I'm checking out, don't delta me." This version of Pierre didn't go to the router: He stayed at home, deleted all his backups, and slit his wrists, his epitaph sharp and self-inflicted. It comes as a cold shock, the first chill gust of winter's gale blowing through the outer system's political elite. And it's the start of a regime of censorship directed toward the already speeding starwisp: Amber, in her grief, makes an executive decision not to tell her embassy to the stars that one of them is dead and, therefore, unique. + +_* Manfred - fifty, with the fashionably pale complexion of the digerati, healthy-looking for his age, standing beside a transmigration bush with a stupid grin on his face. He's decided to take the final step, not simply to spawn external mental processes running in an exocortex of distributed processors, but to move his entire persona right out of meatspace, into wherever it is that the uploads aboard the *{Field Circus}* have gone. Annette, skinny, elegant, and very Parisian, stands beside him, looking as uncertain as the wife of a condemned man. + +_* A wedding, shi'ite, Mut'ah - of limited duration. It's scandalous to many, but the mamtu'ah isn't moslem, she wears a crown instead of a veil, and her groom is already spoken of in outraged terms by most other members of the trans-Martian Islamic clergy. Besides which, in addition to being in love, the happy couple have more strategic firepower than a late-twentieth-century superpower. Their cat, curled at their feet, looks smug: She's the custodian of the permissive action locks on the big lasers. + +_* A speck of ruby light against the darkness - red-shifted almost into the infrared, it's the return signal from the *{Field Circus}*'s light sail as the starwisp passes the one-light-year mark, almost twelve trillion kilometers out beyond Pluto. (Although how can you call it a starwisp when it masses almost a hundred kilograms, including propulsion module? Starwhisps are meant to be tiny!) + +_* Collapse of the trans-Lunar economy: Deep in the hot thinking depths of the solar system, vast new intellects come up with a new theory of wealth that optimizes resource allocation better than the previously pervasive Free Market 1.0. With no local minima to hamper them, and no need to spawn and reap start-ups Darwin-style, the companies, group minds, and organizations that adopt the so-called Accelerated Salesman Infrastructure of Economics 2.0 trade optimally with each other. The phase change accelerates as more and more entities join in, leveraging network externalities to overtake the traditional ecosystem. Amber and Sadeq are late on the train, Sadeq obsessing about how to reconcile ASI with murabaha and mudaraba while the postmodern economy of the mid-twenty-first century disintegrates around them. Being late has punitive consequences - the Ring Imperium has always been a net importer of brainpower and a net exporter of gravitational potential energy. Now it's a tired backwater, the bit rate from the red-shifted relativisitic probe insufficiently delightful to obsess the daemons of industrial routing. In other words, they're poor. + +_* A message from beyond the grave: The travelers aboard the starship have reached their destination, an alien artifact drifting in chilly orbit around a frozen brown dwarf. Recklessly they upload themselves into it, locking the starwisp down for years of sleep. Amber and her husband have few funds with which to pay for the propulsion lasers: what they have left of the kinetic energy of the Ring Imperium - based on the orbital momentum of a small Jovian inner moon - is being sapped, fast, at a near-loss, by the crude requirements of the exobionts and metanthropes who fork and spawn in the datasphere of the outer Jovians. The cost of importing brains to the Ring Imperium is steep: In near-despair Amber and Sadeq produce a child, Generation 3.0, to populate their dwindling kingdom. Picture the cat, offended, lashing its tail beside the zero-gee crib. + +_* Surprise and postcards from the inner orbitals - Amber's mother offers to help. For the sake of the child, Sadeq offers bandwidth and user interface enrichment. The child forks, numerous times, as Amber despairingly plays with probabilities, simulating upbringing outcomes. Neither she nor Sadeq are good parents - the father absent-minded and prone to lose himself in the intertextual deconstruction of surahs, the mother ragged-edged from running the economy of a small and failing kingdom. In the space of a decade, Sirhan lives a dozen lives, discarding identities like old clothes. The uncertainty of life in the decaying Ring Imperium does not entrance him, his parents' obsessions annoy him, and when his grandmother offers to fund his delta vee and subsequent education in one of the orbitals around Titan, his parents give their reluctant assent. + +_* Amber and Sadeq separate acrimoniously. Sadeq, studies abandoned in the face of increasing intrusions from the world of what is into the universe of what should be, joins a spacelike sect of sufis, encysted in a matrix of vitrification nanomechs out in the Oort cloud to await a better epoch. His instrument of will - the legal mechanism of his resurrection - specifies that he is waiting for the return of the hidden, twelfth imam. + +_* For her part, Amber searches the inner system briefly for word of her father - but there's nothing. Isolated and alone, pursued by accusing debts, she flings herself into a reborganization, stripping away those aspects of her personality that have brought her low; in law, her liability is tied to her identity. Eventually she donates herself to a commune of also-rans, accepting their personality in return for a total break with the past. + +_* Without Queen and consort, the Ring Imperium - now unmanned, leaking breathing gases, running on autonomic control - slowly deorbits into the Jovian murk, beaming power to the outer moons until it punches a hole in the cloud deck in a final incandescent smear of light, the like of which has not been seen since the Shoemaker-Levy 9 impact. + +_* Sirhan, engrossed in Saturnalia, is offended by his parents' failure to make more of themselves. And he resolves to do it for them, if not necessarily in a manner of their liking. + +* * * + +"You see, I am hoping you will help me with my history project," says the serious-faced young man. + +"History project." Pierre follows him along the curving gallery, hands clasped behind his back self-consciously to keep from showing his agitation: "What history is this?" + +"The history of the twenty-first century," says Sirhan. "You remember it, don't you?" + +"Remember it -" Pierre pauses. "You're serious?" + +"Yes." Sirhan opens a side door. "This way, please. I'll explain." + +The door opens onto what used to be one of the side galleries of the museum building, full of interactive exhibits designed to explain elementary optics to hyperactive children and their indulgent parental units. Traditional optics are long since obsolete - tunable matter can slow photons to a stop, teleport them here to there, play ping-pong with spin and polarization - and besides, the dumb matter in the walls and floor has been replaced by low-power computronium, heat sinks dangling far below the floor of the lily-pad habitat to dispose of the scanty waste photons from reversible computation. Now the room is empty. + +"Since I became curator here, I've turned the museum's structural supports into a dedicated high-density memory store. One of the fringe benefits of a supervisory post, of course. I have about a billion avabits of capacity, enough to archive the combined sensory bandwidth and memories of the entire population of twentieth-century Earth - if that was what interested me." + +Slowly the walls and ceiling are coming to life, brightening, providing a dizzyingly vibrant view of dawn over the rim wall of Meteor Crater, Arizona - or maybe it's downtown Baghdad. + +"Once I realized how my mother had squandered the family fortune, I spent some time looking for a solution to the problem," Sirhan continues. "And it struck me, then, that there's only one commodity that is going to appreciate in value as time continues: reversibility." + +"Reversibility? That doesn't make much sense." Pierre shakes his head. He still feels slightly dizzy from his decanting. He's only been awake an hour or so and is still getting used to the vagaries of a universe that doesn't bend its rules to fit his whim of iron - that, and worrying about Amber, of whom there is no sign in the hall of growing bodies. "Excuse me, please, but do you know where Amber is?" + +"Hiding, probably," Sirhan says, without rancor. "Her mother's about," he adds. "Why do you ask?" + +"I don't know what you know about us." Pierre looks at him askance: "We were aboard the *{Field Circus}* for a long time." + +"Oh, don't worry on my behalf. I know you're not the same people who stayed behind to contribute to the Ring Imperium's collapse," Sirhan says dismissively, while Pierre hastily spawns a couple of ghosts to search for the history he's alluding to. What they discover shocks him to the core as they integrate with his conscious narrative. + +"We didn't know about any of that!" Pierre crosses his arms defensively. "Not about you, or your father either," he adds quietly. "Or my other ... life." Shocked: /{Did I kill myself? Why would I do a thing like that}/? Nor can he imagine what Amber might see in an introverted cleric like Sadeq; not that he wants to. + +"I'm sure this must come as a big shock to you," Sirhan says condescendingly, "but it's all to do with what I was talking about. Reversibility. What does it mean to you, in your precious context? /{You}/ are, if you like, an opportunity to reverse whatever ill fortune made your primary instance autodarwinate himself. He destroyed all the back-ups he could get his ghosts to ferret out, you know. Only a light-year delay line and the fact that as a running instance you're technically a different person saved you. And now, you're alive, and he's dead - and whatever made him kill himself doesn't apply to you. Think of it as natural selection among different versions of yourself. The fittest version of you survives." + +He points at the wall of the crater. A tree diagram begins to grow from the bottom left corner of the wall, recurving and recomplicating as it climbs toward the top right, zooming and fracturing into taxonomic fault lines. "Life on Earth, the family tree, what paleontology has been able to deduce of it for us," he says pompously. "The vertebrates begin /{there}/" - a point three quarters of the way up the tree - "and we've got an average of a hundred fossil samples per megayear from then on. Most of them collected in the past two decades, as exhaustive mapping of the Earth's crust and upper mantle at the micrometer level has become practical. What a /{waste}/." + +"That's" - Pierre does a quick sum - "fifty thousand different species? Is there a problem?" + +"Yes!" Sirhan says vehemently, no longer aloof or distant. He struggles visibly to get himself under control. "At the beginning of the twentieth century, there were roughly two million species of vertebrate and an estimated thirty or so million species of multicellular organisms - it's hard to apply the same statistical treatment to prokaryotes, but doubtless there were huge numbers of them, too. The average life span of a species is about five megayears. It used to be thought to be about one, but that's a very vertebrate-oriented estimate - many insect species are stable over deep time. Anyway, we have a total sample, from all of history, of only fifty thousand known prehistoric species - out of a population of thirty million, turning over every five million years. That is, we know of only one in a million life-forms, of those that ever existed on Earth. And the situation with human history is even worse." + +"Aha! So you're after memories, yes? What really happened when we colonized Barney. Who released Oscar's toads in the free-fall core of the *{Ernst Sanger}*, that sort of thing?" + +"Not exactly." Sirhan looks pained, as if being forced to spell it out devalues the significance of his insight. "I'm after /{history}/. All of it. I intend to corner the history futures market. But I need my grandfather's help - and you're here to help me get it." + +* * * + +Over the course of the day, various refugees from the *{Field Circus}* hatch from their tanks and blink in the ringlight, stranded creatures from an earlier age. The inner system is a vague blur from this distance, a swollen red cloud masking the sun that rides high above the horizon. However, the great restructuring is still visible to the naked eye - here, in the shape of the rings, which show a disturbingly organized fractal structure as they whirl in orbit overhead. Sirhan (or whoever is paying for this celebration of family flesh) has provided for their physical needs: food, water, clothes, housing and bandwidth, they're all copiously available. A small town of bubble homes grows on the grassy knoll adjacent to the museum, utility foglets condensing in a variety of shapes and styles. + +Sirhan isn't the only inhabitant of the festival city, but the others keep themselves to themselves. Only bourgeois isolationists and reclusive weirdoes would want to live out here right now, with whole light-minutes between themselves and the rest of civilization. The network of lily-pad habitats isn't yet ready for the Saturnalian immigration wave that will break upon this alien shore when it's time for the Worlds' Fair, a decade or more in the future. Amber's flying circus has driven the native recluses underground, in some cases literally: Sirhan's neighbor, Vinca Kovic, after complaining bitterly about the bustle and noise ("Forty immigrants! An outrage!"), has wrapped himself in an environment pod and is estivating at the end of a spider-silk cable a kilometer beneath the space-frame underpinnings of the city. + +But that isn't going to stop Sirhan from organizing a reception for the visitors. He's moved his magnificent dining table outside, along with the Argentinosaurus skeleton. In fact, he's built a dining room within the dinosaur's rib cage. Not that he's planning on showing his full hand, but it'll be interesting to see how his guests respond. And maybe it'll flush out the mystery benefactor who's been paying for all these meatbodies. + +Sirhan's agents politely invite his visitors to the party as the second sunset in this day cycle gently darkens the sky to violet. He discusses his plans with Pamela via antique voice-only phone as his silent valet dresses him with inhuman grace and efficiency. "I'm sure they'll listen when the situation is made clear to them," he says. "If not, well, they'll soon find out what it means to be paupers under Economics 2.0. No access to multiplicity, no willpower, to be limited to purely spacelike resources, at the mercy of predatory borganisms and metareligions - it's no picnic out there!" + +"You don't have the resources to set this up on your own," his grandmother points out in dry, didactic tones. "If this was the old economy, you could draw on the infrastructure of banks, insurers, and other risk management mechanisms -" + +"There's no risk to this venture, in purely human terms," Sirhan insists. "The only risk is starting it up with such a limited reserve." + +"You win some, you lose some," Pamela points out. "Let me see you." With a sigh, Sirhan waves at a frozen camera; it blinks, surprised. "Hey, you look good! Every inch the traditional family entrepreneur. I'm proud of you, darling." + +Blinking back an unaccustomed tear of pride, Sirhan nods. "I'll see you in a few minutes," he says, and cuts the call. To the nearest valet: "Bring my carriage, now." + +A rippling cloud of utility foglets, constantly connecting and disconnecting in the hazy outline of a 1910-vintage Rolls Royce Silver Ghost, bears Sirhan silently away from his wing of the museum. It drives him out onto the sunset path around the building, over to the sunken amphitheatre, where the mounted skeleton of the Argentinosaurus stands like a half-melted columnar sculpture beneath the orange-and-silver ringlight. A small crowd of people are already present, some dressed casually and some attired in the formal garb of earlier decades. Most of them are passengers or crew recently decanted from the starwisp, but a handful are wary-eyed hermits, their body language defensive and their persons the focus of a constant orbital hum of security bees. Sirhan dismounts from his silvery car and magics it into dissolution, a haze of foglets dispersing on the breeze. "Welcome to my abode," he says, bowing gravely to a ring of interested faces. "My name is Sirhan al-Khurasani, and I am the prime contractor in charge of this small corner of the temporary Saturn terraforming project. As some of you probably know, I am related by blood and design to your former captain, Amber Macx. I'd like to offer you the comforts of my home while you acclimatize yourselves to the changed circumstances prevailing in the system at large and work out where you want to go next." + +He walks toward the front of the U-shaped table of solidified air that floats beneath the dead dinosaur's rib cage, slowly turns to take in faces, and blinks down captions to remind him who's who in this gathering. He frowns slightly; there's no sign of his mother. But that wiry fellow, with the beard - surely that can't be - "Father?" he asks. + +Sadeq blinks owlishly. "Have we met?" + +"Possibly not." Sirhan can feel his head spinning, because although Sadeq looks like a younger version of his father, there's something /{wrong}/ - some essential disconnect: the politely solicitous expression, the complete lack of engagement, the absence of paternal involvement. This Sadeq has never held the infant Sirhan in the control core of the Ring's axial cylinder, never pointed out the spiral storm raking vast Jupiter's face and told him stories of djinni and marvels to make a boy's hair stand on end. "I won't hold it against you, I promise," he blurts. + +Sadeq raises an eyebrow but passes no comment, leaving Sirhan at the center of an uncomfortable silence. "Well then," he says hastily. "If you would like to help yourselves to food and drink, there'll be plenty of time to talk later." Sirhan doesn't believe in forking ghosts simply to interact with other people - the possibilities for confusion are embarrassing - but he's going to be busy working the party. + +He glances round. Here's a bald, aggressive-looking fellow, beetle-browed, wearing what looks like a pair of cut-offs and a top made by deconstructing a space suit. Who's he? (Sirhan's agents hint: "Boris Denisovitch." But what does that /{mean}/?) There's an amused-looking older woman, a beady-eyed camera painted in the violent colors of a bird of paradise riding her shoulder. Behind her a younger woman, dressed head to toe in clinging black, her currently ash-blonde hair braided in cornrows, watches him - as does Pierre, a protective arm around her shoulders. They're - /{Amber Macx?}/ That's his /{mother}/? She looks far too young, too much in love with Pierre. "Amber!" he says, approaching the couple. + +"Yeah? You're, uh, my mystery child-support litigant?" Her smile is distinctly unfriendly as she continues: "Can't say I'm entirely pleased to meet you, under the circumstances, although I should thank you for the spread." + +"I -" His tongue sticks to the roof of his mouth. "It's not like that." + +"What's it supposed to be like?" she asks sharply. jabbing a finger at him: "You know damn well I'm not your mother. So what's it all about, huh? You know damn well I'm nearly bankrupt, too, so it's not as if you're after my pocket lint. What do you want from me?" + +Her vehemence takes him aback. This sharp-edged aggressive woman isn't his mother, and the introverted cleric - believer - on the other side isn't his father, either. "I ha-ha-had to stop you heading for the inner system," he says, speech center hitting deadlock before his antistutter mod can cut in. "They'll eat you alive down there. Your other half left behind substantial debts, and they've been bought up by the most predatory - " + +"Runaway corporate instruments," she states, calmly enough. "Fully sentient and self-directed." + +"How did you know?" he asks, worried. + +She looks grim. "I've met them before." It's a very /{familiar}/ grim expression, one he knows intimately, and that feels wrong coming from this near stranger. "We visited some weird places, while we were away." She glances past him, focuses on someone else, and breathes in sharply as her face goes blank. "Quickly, tell me what your scheme is. Before Mom gets here." + +"Mind archiving and history mergers. Back yourself up, pick different life courses, see which ones work and which don't - no need to be a failure, just hit the 'reload game' icon and resume. That and a long-term angle on the history futures market. I /{need}/ your help," he babbles. "It won't work without family, and I'm trying to stop her killing herself -" + +"Family." She nods, guardedly, and Sirhan notices her companion, this Pierre - not the weak link that broke back before he was born, but a tough-eyed explorer newly returned from the wilderness - sizing him up. Sirhan's got one or two tricks up his exocortex, and he can see the haze of ghost-shapes around Pierre; his data-mining technique is crude and out-of-date, but enthusiastic and not without a certain flair. "Family," Amber repeats, and it's like a curse. Louder: "Hello, Mom. Should have guessed he'd have invited you here, too." + +"Guess again." Sirhan glances round at Pamela, then back at Amber, suddenly feeling very much like a rat trapped between a pair of angry cobras. Leaning on her cane, wearing discreet cosmetics and with her medical supports concealed beneath an old-fashioned dress, Pamela could be a badly preserved sixtysomething from the old days instead of the ghastly slow suicide case that her condition amounts to today. She smiles politely at Amber. "You may remember me telling you that a lady never unintentionally causes offense. I didn't want to offend Sirhan by turning up in spite of his wishes, so I didn't give him a chance to say no." + +"And this is supposed to earn you a sympathy fuck?" Amber drawls. "I'd expected better of you." + +"Why, you -" The fire in her eyes dies suddenly, subjected to the freezing pressure of a control that only comes with age. "I'd hoped getting away from it all would have improved your disposition, if not your manners, but evidently not." Pamela jabs her cane at the table: "Let me repeat, this is your /{son's}/ idea. Why don't you eat something?" + +"Poison tester goes first." Amber smiles slyly. + +"For fuck's sake!" It's the first thing Pierre has said so far, and crude or not, it comes as a profound relief when he steps forward, picks up a plate of water biscuits loaded with salmon caviar, and puts one in his mouth. "Can't you guys leave the back stabbing until the rest of us have filled our stomachs? 'S not as if I can turn down the biophysics model in here." He shoves the plate at Sirhan. "Go on, it's yours." + +The spell is broken. "Thank you," Sirhan says gravely, taking a cracker and feeling the tension fall as Amber and her mother stop preparing to nuke each other and focus on the issue at hand - which is that food comes before fighting at any social event, not vice versa. + +"You might enjoy the egg mayonnaise, too," Sirhan hears himself saying: "It goes a long way to explaining why the dodo became extinct first time around." + +"Dodoes." Amber keeps one eye warily on her mother as she accepts a plate from a silently gliding silver bush-shaped waitron. "What was that about the family investment project?" she asks. + +"Just that without your cooperation your family will likely go the way of the bird," her mother cuts in before Sirhan can muster a reply. "Not that I expect you to care." + +Boris butts in. "Core worlds are teeming with corporates. Is bad business for us, good business for them. If you are seeing what we are seen -" + +"Don't remember /{you}/ being there," Pierre says grumpily. + +"In any event," Sirhan says smoothly, "the core isn't healthy for us one-time fleshbodies anymore. There are still lots of people there, but the ones who uploaded expecting a boom economy were sadly disappointed. Originality is at a premium, and the human neural architecture isn't optimized for it - we are, by disposition, a conservative species, because in a static ecosystem, that provides the best return on sunk reproductive investment costs. Yes, we change over time - we're more flexible than almost any other animal species to arise on Earth - but we're like granite statues compared to organisms adapted to life under Economics 2.0." + +"You tell 'em, boy," Pamela chirps, almost mockingly. "It wasn't that bloodless when I lived through it." Amber casts her a cool stare. + +"Where was I?" Sirhan snaps his fingers, and a glass of fizzy grape juice appears between them. "Early upload entrepreneurs forked repeatedly, discovered they could scale linearly to occupy processor capacity proportional to the mass of computronium available, and that computationally trivial tasks became tractable. They could also run faster, or slower, than real time. But they were still /{human}/, and unable to operate effectively outside human constraints. Take a human being and bolt on extensions that let them take full advantage of Economics 2.0, and you essentially break their narrative chain of consciousness, replacing it with a journal file of bid/request transactions between various agents; it's incredibly efficient and flexible, but it isn't a conscious human being in any recognizable sense of the word." + +"All right," Pierre says slowly. "I think we've seen something like that ourselves. At the router." + +Sirhan nods, not sure whether he's referring to anything important. "So you see, there are limits to human progress - but not to progress itself! The uploads found their labor to be a permanently deflating commodity once they hit their point of diminishing utility. Capitalism doesn't have a lot to say about workers whose skills are obsolete, other than that they should invest wisely while they're earning and maybe retrain: but just knowing /{how}/ to invest in Economics 2.0 is beyond an unaugmented human. You can't retrain as a seagull, can you, and it's quite as hard to retool for Economics 2.0. Earth is -" He shudders. + +"There's a phrase I used to hear in the old days," Pamela says calmly, "ethnic cleansing. Do you know what that means, darling idiot daughter? You take people who you define as being of little worth, and first you herd them into a crowded ghetto with limited resources, then you decide those resources aren't worth spending on them, and bullets are cheaper than bread. 'Mind children' the extropians called the posthumans, but they were more like Vile Offspring. There was a lot of that, during the fast sigmoid phase. Starving among plenty, compulsory conversions, the very antithesis of everything your father said he wanted ..." + +"I don't believe it," Amber says hotly. "That's crazy! We can't go the way of -" + +"Since when has human history been anything else?" asks the woman with the camera on her shoulder - Donna, being some sort of public archivist, is in Sirhan's estimate likely to be of use to him. "Remember what we found in the DMZ?" + +"The DMZ?" Sirhan asks, momentarily confused. + +"After we went through the router," Pierre says grimly. "You tell him, love." He looks at Amber. + +Sirhan, watching him, feels it fall into place at that moment, a sense that he's stepped into an alternate universe, one where the woman who might have been his mother isn't, where black is white, his kindly grandmother is the wicked witch of the west, and his feckless grandfather is a farsighted visionary. + +"We uploaded via the router," Amber says, and looks confused for a moment. "There's a network on the other side of it. We were told it was FTL, instantaneous, but I'm not so sure now. I think it's something more complicated, like a lightspeed network, parts of which are threaded through wormholes that make it look FTL from our perspective. Anyway, Matrioshka brains, the end product of a technological singularity - they're bandwidth-limited. Sooner or later the posthuman descendants evolve Economics 2.0, or 3.0, or something else and it, uh, /{eats}/ the original conscious instigators. Or uses them as currency or something. The end result we found is a howling wilderness of degenerate data, fractally compressed, postconscious processes running slower and slower as they trade storage space for processing power. We were" - she licks her lips - "lucky to escape with our minds. We only did it because of a friend. It's like the main sequence in stellar evolution; once a G-type star starts burning helium and expands into a red giant, it's 'game over' for life in what used to be its liquid-water zone. Conscious civilizations sooner or later convert all their available mass into computronium, powered by solar output. They don't go interstellar because they want to stay near the core where the bandwidth is high and latency is low, and sooner or later, competition for resources hatches a new level of metacompetition that obsoletes them." + +"That sounds plausible," Sirhan says slowly. He puts his glass down and chews distractedly on one knuckle. "I thought it was a low-probability outcome, but ..." + +"I've been saying all along, your grandfather's ideas would backfire in the end," Pamela says pointedly. + +"But -" Amber shakes her head. "There's more to it than that, isn't there?" + +"Probably," Sirhan says, then shuts up. + +"So are you going to tell us?" asks Pierre, looking annoyed. "What's the big idea, here?" + +"An archive store," Sirhan says, deciding that this is the right time for his pitch. "At the lowest level, you can store back-ups of yourself here. So far so good, eh? But there's a bit more to it than that. I'm planning to offer a bunch of embedded universes - big, running faster than real-time - sized and scoped to let human-equivalent intelligences do what-if modeling on themselves. Like forking off ghosts of yourself, but much more so - give them whole years to diverge, learn new skills, and evaluate them against market requirements, before deciding which version of you is most suited to run in the real world. I mentioned the retraining paradox. Think of this as a solution for level one, human-equivalent, intelligences. But that's just the short-term business model. Long-term, I want to acquire a total lock on the history futures market by having a /{complete}/ archive of human experiences, from the dawn of the fifth singularity on up. No more unknown extinct species. That should give us something to trade with the next-generation intelligences - the ones who aren't our mind children and barely remember us. At the very least, it gives us a chance to live again, a long way out in deep time. Alternatively, it can be turned into a lifeboat. If we can't compete with our creations, at least we've got somewhere to flee, those of us who want to. I've got agents working on a comet, out in the Oort cloud - we could move the archive to it, turn it into a generation ship with room for billions of evacuees running much slower than real-time in archive space until we find a new world to settle." + +"Is not sounding good to me," Boris comments. He spares a worried glance for an oriental-looking woman who is watching their debate silently from the fringe. + +"Has it really gone that far?" asks Amber. + +"There are bailiffs hunting you in the inner system," Pamela says bluntly. "After your bankruptcy proceedings, various corporates got the idea that you might be concealing something. The theory was that you were insane to take such a huge gamble on the mere possibility of there being an alien artifact within a few light-years of home, so you had to have information above and beyond what you disclosed. Theories include your cat - hardware tokens were in vogue in the fifties - being the key to a suite of deposit accounts; the fuss mainly died down after Economics 2.0 took over, but some fairly sleazy conspiracy freaks refuse to let go." + +She grins, frighteningly. "Which is why I suggested to your son that he make you an offer you can't refuse." + +"What's that?" asks a voice from below knee level. + +Pamela looks down, an expression of deep distaste on her face. "Why should I tell /{you}/?" she asks, leaning on her cane: "After the disgraceful way you repaid my hospitality! All you've got coming from me is a good kicking. If only my knee was up to the job." + +The cat arches its back: Its tail fluffs out with fear as its hair stands on end, and it takes Amber a moment to realize that it isn't responding to Pamela, but to something behind the old woman. "Through the domain wall. Outside this biome. So cold. What's /{that}/?" + +Amber turns to follow the cat's gaze, and her jaw drops. "Were you expecting visitors?" she asks Sirhan, shakily. + +"Visit -" He looks round to see what everybody's gaping at and freezes. The horizon is brightening with a false dawn: the fusion spark of a de-orbiting spacecraft. + +"It's bailiffs," says Pamela, head cocked to one side as if listening to an antique bone-conduction earpiece. "They've come for your memories, dear," she explains, frowning. "They say we've got five kiloseconds to surrender everything. Otherwise, they're going to blow us apart ..." + +* * * + +"You're all in big trouble," says the orang-utan, sliding gracefully down one enormous rib to land in an ungainly heap in front of Sirhan. + +Sirhan recoils in disgust. "You again! What do you want from me this time?" + +"Nothing." The ape ignores him: "Amber, it is time for you to call your father." + +"Yeah, but will he come when I call?" Amber stares at the ape. Her pupils expand: "Hey, you're not my -" + +"You." Sirhan glares at the ape. "Go away! I didn't invite you here!" + +"More unwelcome visitors?" asks Pamela, raising an eyebrow. + +"Yes, you did." The ape grins at Amber, then crouches down, hoots quietly and beckons to the cat, who is hiding behind one of the graceful silver servitors. + +"Manfred isn't welcome here. And neither is that woman," Sirhan swears. He catches Pamela's eye: "Did you know anything about this? Or about the bailiffs?" He gestures at the window, beyond which the drive flare casts jagged shadows. It's dropping toward the horizon as it de-orbits - next time it comes into view, it'll be at the leading edge of a hypersonic shock wave, streaking toward them at cloud top height in order to consummate the robbery. + +"Me?" Pamela snorts. "Grow up." She eyes the ape warily. "I don't have that much control over things. And as for bailiffs, I wouldn't set them on my worst enemies. I've seen what those things can do." For a moment her eyes flash anger: "Grow up, why don't you!" she repeats. + +"Yes, please do," says another voice from behind Sirhan. The new speaker is a woman, slightly husky, accented - he turns to see her: tall, black-haired, wearing a dark man's suit of archaic cut and mirrored glasses. "Ah, Pamela, ma chérie! Long time no cat fight." She grins frighteningly and holds out a hand. + +Sirhan is already off-balance. Now, seeing his honorary aunt in human skin for a change, he looks at the ape in confusion. Behind him Pamela advances on Annette and takes her hand in her own fragile fingers. "You look just the same," she says gravely. "I can see why I was afraid of you." + +"You." Amber backs away until she bumps into Sirhan, at whom she glares. "What the fuck did you invite both of them for? Are you /{trying}/ to start a thermonuclear war?" + +"Don't ask me," he says helplessly, "I don't know why they came! What's this about -" He focuses on the orang-utan, who is now letting the cat lick one hairy palm. "Your cat?" + +"I don't think the orange hair suits Aineko," Amber says slowly. "Did I tell you about our hitchhiker?" + +Sirhan shakes his head, trying to dispel the confusion. "I don't think we've got time. In under two hours the bailiffs up there will be back. They're armed and dangerous, and if they turn their drive flame on the roof and set fire to the atmosphere in here, we'll be in trouble - it would rupture our lift cells, and even computronium doesn't work too well under a couple of million atmospheres of pressurized metallic hydrogen." + +"Well, you'd better /{make}/ time." Amber takes his elbow in an iron grip and turns him toward the footpath back to the museum. "Crazy," she mutters. "Tante Annette and Pamela Macx on the same planet! And they're being /{friendly}/! This can't be a good sign." She glances round, sees the ape: "You. Come /{here}/. Bring the cat." + +"The cat's -" Sirhan trails off. "I've heard about your cat," he says, lamely. "You took him with you in the *{Field Circus}*." + +"Really?" She glances behind them. The ape blows a kiss at her; it's cradling the cat on one shoulder and tickling it under the chin. "Has it occurred to you that Aineko isn't just a robot cat?" + +"Ah," Sirhan says faintly. "Then the bailiffs -" + +"No, that's all bullshit. What I mean is, Aineko is a human-equivalent, or better, artificial intelligence. Why do you think he keeps a cat's body?" + +"I have no idea." + +"Because humans always underestimate anything that's small, furry, and cute," says the orang-utan. + +"Thanks, Aineko," says Amber. She nods at the ape. "How are you finding it?" + +Aineko shambles along, with a purring cat draped over one shoulder, and gives the question due consideration. "Different," she says, after a bit. "Not better." + +"Oh." Amber sounds slightly disappointed to Sirhan's confused ears. They pass under the fronds of a weeping willow, round the side of a pond, beside an overgrown hibiscus bush, then up to the main entrance of the museum. + +"Annette was right about one thing," she says quietly. "Trust no one. I think it's time to raise Dad's ghost." She relaxes her grip on Sirhan's elbow, and he pulls it away and glares at her. "Do you know who the bailiffs are?" she asks. + +"The usual." He gestures at the hallway inside the front doors. "Replay the ultimatum, if you please, City." + +The air shimmers with an archaic holographic field, spooling the output from a compressed visual presentation tailored for human eyesight. A piratical-looking human male wearing a tattered and much-patched space suit leers at the recording viewpoint from the pilot's seat of an ancient Soyuz capsule. One of his eyes is completely black, the sign of a high-bandwidth implant. A weedy moustache crawls across his upper lip. "Greetins an' salutations," he drawls. "We is da' Californi-uhn nashnul gaard an' we-are got lett-uhz o' marque an' reprise from da' ledgish-fuckn' congress o' da excited snakes of uhhmerica." + +"He sounds drunk!" Amber's eyes are wide. "What's this -" + +"Not drunk. CJD is a common side effect of dodgy Economics 2.0 neural adjuvant therapy. Unlike the old saying, you /{do}/ have to be mad to work there. Listen." + +City, which paused the replay for Amber's outburst, permits it to continue. "Youse harbbring da' fugitive Amber Macx an' her magic cat. We wan' da cat. Da puta's yours. Gotser uno orbit: You ready give us ther cat an' we no' zap you." + +The screen goes dead. "That was a fake, of course," Sirhan adds, looking inward where a ghost is merging memories from the city's orbital mechanics subsystem: "They aerobraked on the way in, hit ninety gees for nearly half a minute. While /{that}/ was sent afterward. It's just a machinima avatar, a human body that had been through that kind of deceleration would be pulped." + +"So the bailiffs are -" Amber is visibly struggling to wrap her head around the situation. + +"They're not human," Sirhan says, feeling a sudden pang of - no, not affection, but the absence of malice will do for the moment - toward this young woman who isn't the mother he loves to resent, but who might have become her in another world. "They've absorbed a lot of what it is to be human, but their corporate roots show. Even though they run on an hourly accounting loop, rather than one timed for the production cycles of dirt-poor Sumerian peasant farmers, and even though they've got various ethics and business practice patches, at root they're not human: They're limited liability companies." + +"So what do they want?" asks Pierre, making Sirhan jump, guiltily. He hadn't realized Pierre could move that quietly. + +"They want money. Money in Economy 2.0 is quantized originality - that which allows one sentient entity to outmaneuver another. They think your cat has got something, and they want it. They probably wouldn't mind eating your brains, too, but -" He shrugs. "Obsolete food is stale food." + +"Hah." Amber looks pointedly at Pierre, who nods at her. + +"What?" asks Sirhan. + +"Where's the - uh, cat?" asks Pierre. + +"I think Aineko's got it." She looks thoughtful. "Are you thinking what I'm thinking?" + +"Time to drop off the hitcher." Pierre nods. "Assuming it agrees ..." + +"Do you mind explaining yourselves?" Sirhan asks, barely able to contain himself. + +Amber grins, looking up at the Mercury capsule suspended high overhead. "The conspiracy theorists were half right. Way back in the Dark Ages, Aineko cracked the second alien transmission. We had a very good idea we were going to find something out there, we just weren't totally sure exactly what. Anyway, the creature incarnated in that cat body right now isn't Aineko - it's our mystery hitchhiker. A parasitic organism that infects, well, we ran across something not too dissimilar to Economics 2.0 out at the router and beyond, and it's got parasites. Our hitcher is one such creature - it's nearest human-comprehensible analogy would be the Economics 2.0 equivalent of a pyramid scheme crossed with a 419 scam. As it happens, most of the runaway corporate ghosts out beyond the router are wise to that sort of thing, so it hacked the router's power system to give us a beam to ride home in return for sanctuary. That's as far as it goes." + +"Hang on." Sirhan's eyes bulge. "You /{found}/ something out there? You brought back a real-live alien?" + +"Guess so." Amber looks smug. + +"But, but, that's marvelous! That changes everything! It's incredible! Even under Economics 2.0 that's got to be worth a gigantic amount. Just think what you could learn from it!" + +"/{Oui}/. A whole new way of bilking corporations into investing in cognitive bubbles," Pierre interrupts cynically. "It seems to me that you are making two assumptions - that our passenger is willing to be exploited by us, and that we survive whatever happens when the bailiffs arrive." + +"But, but -" Sirhan winds down spluttering, only refraining from waving his arms through an effort of will. + +"Let's go ask it what it wants to do," says Amber. "Cooperate," she warns Sirhan. "We'll discuss your other plans later, dammit. First things first - we need to get out from under these pirates." + +* * * + +As they make their way back toward the party, Sirhan's inbox is humming with messages from elsewhere in Saturn system - from other curators on board lily-pad habs scattered far and wide across the huge planetary atmosphere, from the few ring miners who still remember what it was like to be human (even though they're mostly brain-in-a-bottle types, or uploads wearing nuclear-powered bodies made of ceramic and metal): even from the small orbital townships around Titan, where screaming hordes of bloggers are bidding frantically for the viewpoint feeds of the *{Field Circus's}* crew. It seems that news of the starship's arrival has turned hot only since it became apparent that someone or something thought they would make a decent shakedown target. Now someone's blabbed about the alien passenger, the nets have gone crazy. + +"City," he mutters, "where's this hitchhiker creature? Should be wearing the body of my mother's cat." + +"Cat? What cat?" replies City. "I see no cats here." + +"No, it looks /{like}/ a cat, it -" A horrible thought dawns on him. "Have you been hacked again?" + +"Looks like it," City agrees enthusiastically. "Isn't it tiresome?" + +"Shi - oh dear. Hey," he calls to Amber, forking several ghosts as he does so in order to go hunt down the missing creature by traversing the thousands of optical sensors that thread the habitat in loco personae - a tedious process rendered less objectionable by making the ghosts autistic - "have you been messing with my security infrastructure?" + +"Us?" Amber looks annoyed. "No." + +"/{Someone}/ has been. I thought at first it was that mad Frenchwoman, but now I'm not sure. Anyway, it's a big problem. If the bailiffs figure out how to use the root kit to gain a toe hold here, they don't need to burn us - just take the whole place over." + +"That's the least of your worries," Amber points out. "What kind of charter do these bailiffs run on?" + +"Charter? Oh, you mean legal system? I think it's probably a cheap one, maybe even the one inherited from the Ring Imperium. Nobody bothers breaking the law out here these days, it's too easy to just buy a legal system off the shelf, tailor it to fit, and conform to it." + +"Right." She stops, stands still, and looks up at the almost invisible dome of the gas cell above them. "Pigeons," she says, almost tiredly. "Damn, how did I miss it? How long have you had an infestation of group minds?" + +"Group?" Sirhan turns round. "/{What}/ did you just say?" + +There's a chatter of avian laughter from above, and a light rain of birdshit splatters the path around him. Amber dodges nimbly, but Sirhan isn't so light on his feet and ends up cursing, summoning up a cloth of congealed air to wipe his scalp clean. + +"It's the flocking behavior," Amber explains, looking up. "If you track the elements - birds - you'll see that they're not following individual trajectories. Instead, each pigeon sticks within ten meters or so of sixteen neighbors. It's a Hamiltonian network, kid. Real birds don't do that. How long?" + +Sirhan stop cursing and glares up at the circling birds, cooing and mocking him from the safety of the sky. He waves his fist: "I'll get you, see if I don't -" + +"I don't think so." Amber takes his elbow again and steers him back round the hill. Sirhan, preoccupied with maintaining an umbrella of utility fog above his gleaming pate, puts up with being manhandled. "You don't think it's just a coincidence, do you?" she asks him over a private head-to-head channel. "They're one of the players here." + +"I don't care. They've hacked my city and gate crashed my party! I don't care /{who}/ they are, they're not welcome." + +"Famous last words," Amber murmurs, as the party comes around the hillside and nearly runs over them. Someone has infiltrated the Argentinosaurus skeleton with motors and nanofibers, animating the huge sauropod with a simulation of undead life. Whoever did it has also hacked it right out of the surveillance feed. Their first warning is a footstep that makes the ground jump beneath their feet - then the skeleton of the hundred-tonne plant-eater, taller than a six-storey building and longer than a commuter train, raises its head over the treetops and looks down at them. There's a pigeon standing proudly on its skull, chest puffed out, and a dining room full of startled taikonauts sitting on a suspended wooden floor inside its rib cage. + +"It's /{my}/ party and /{my}/ business scheme!" Sirhan insists plaintively. "Nothing you or anyone else in the family do can take it away from me!" + +"That's true," Amber points out, "but in case you hadn't noticed, you've offered temporary sanctuary to a bunch of people - not to put too fine a point on it, myself included - who some assholes think are rich enough to be worth mugging, and you did it without putting any contingency plans in place other than to invite my manipulative bitch of a mother. What did you think you were doing? Hanging out a sign saying 'scam artists welcome here'? Dammit, I need Aineko." + +"Your cat." Sirhan fastens on to this: "It's your cat's fault! Isn't it?" + +"Only indirectly." Amber looks round and waves at the dinosaur skeleton. "Hey, you! Have you seen Aineko?" + +The huge dinosaur bends its neck and the pigeon opens its beak to coo. Eerie harmonics cut in as a bunch of other birds, scattered to either side, sing counterpoint to produce a demented warbling voice. "The cat's with your mother." + +"Oh shit!" Amber turns on Sirhan fiercely. "Where's Pamela? /{Find her}/!" + +Sirhan is stubborn. "Why should I?" + +"Because she's got the cat! What do you think she's going to do but cut a deal with the bailiffs out there to put one over on me? Can't you fucking see where this family tendency to play head games comes from?" + +"You're too late," echoes the eerie voice of the pigeons from above and around them. "She's kidnapped the cat and taken the capsule from the museum. It's not flightworthy, but you'd be amazed what you can do with a few hundred ghosts and a few tonnes of utility fog." + +"Okay." Amber stares up at the pigeons, fists on hips, then glances at Sirhan. She chews her lower lip for a moment, then nods to the bird riding the dinosaur's skull. "Stop fucking with the boy's head and show yourself, Dad." + +Sirhan boggles in an upward direction as a whole flock of passenger pigeons comes together in mid air and settles toward the grass, cooing and warbling like an explosion in a synthesizer factory. + +"What's she planning on doing with the Slug?" Amber asks the pile of birds. "And isn't it a bit cramped in there?" + +"You get used to it," says the primary - and thoroughly distributed - copy of her father. "I'm not sure what she's planning, but I can show you what she's doing. Sorry about your city, kid, but you really should have paid more attention to those security patches. There's lots of crufty twentieth-century bugware kicking around under your shiny new singularity, design errors and all, spitting out turd packets all over your sleek new machine." + +Sirhan shakes his head in denial. "I don't believe this," he moans quietly. + +"Show me what Mom's up to," orders Amber. "I need to see if I can stop her before it's too late -" + +* * * + +The ancient woman in the space suit leans back in her cramped seat, looks at the camera, and winks. "Hello, darling. I know you're spying on me." + +There's an orange-and-white cat curled up in her nomex-and-aluminum lap. It seems to be happy: It's certainly purring loudly enough, although that reflex is wired in at a very low level. Amber watches helplessly as her mother reaches up arthritically and flips a couple of switches. Something loud is humming in the background - probably an air recirculator. There's no window in the Mercury capsule, just a periscope offset to one side of Pamela's right knee. "Won't be long now," she mutters, and lets her hand drop back to her side. "You're too late to stop me," she adds, conversationally. "The 'chute rigging is fine and the balloon blower is happy to treat me as a new city seed. I'll be free in a minute or so." + +"Why are you doing this?" Amber asks tiredly. + +"Because you don't need me around." Pamela focuses on the camera that's glued to the instrument panel in front of her head. "I'm old. Face it, I'm disposable. The old must give way to the new, and all that. Your Dad never really did get it - he's going to grow old gracelessly, succumbing to bit rot in the big forever. Me, I'm not going there. I'm going out with a bang. Aren't I, cat? Whoever you really are." She prods the animal. It purrs and stretches out across her lap. + +"You never looked hard enough at Aineko, back in the day," she tells Amber, stroking its flanks. "Did you think I didn't know you'd audit its source code, looking for trapdoors? I used the Thompson hack - she's been mine, body and soul, for a very long time indeed. I got the whole story about your passenger from the horse's mouth. And now we're going to go fix those bailiffs. Whee!" + +The camera angle jerks, and Amber feels a ghost re-merge with her, panicky with loss. The Mercury capsule's gone, drifting away from the apex of the habitat beneath a nearly transparent sack of hot hydrogen. + +"That was a bit rough," remarks Pamela. "Don't worry, we should still be in communications range for another hour or so." + +"But you're going to die!" Amber yells at her. "What do you think you're /{doing}/?" + +"I think I'm going to die well. What do you think?" Pamela lays one hand on the cat's flank. "Here, you need to encrypt this a bit better. I left a one time pad behind with Annette. Why don't you go fetch it? Then I'll tell you what else I'm planning?" + +"But my aunt is -" Amber's eyes cross as she concentrates. Annette is already waiting, as it happens, and a shared secret appears in Amber's awareness almost before she asks. "Oh. All right. What are you doing with the cat, though?" + +Pamela sighs. "I'm going to give it to the bailiffs," she says. "Someone has to, and it better be a long way away from this city before they realize that it isn't Aineko. This is a lot better than the way I expected to go out before you arrived here. No rat fucking blackmailers are going to get their hands on the family jewels if /{I}/ have anything to do with the matter. Are you sure you aren't a criminal mastermind? I'm not sure I've ever heard of a pyramid scheme that infects Economics 2.0 structures before." + +"It's -" Amber swallows. "It's an alien business model, Ma. You do know what that means? We brought it back with us from the router, and we wouldn't have been able to come back if it hadn't helped, but I'm not sure it's entirely friendly. Is this sensible? You can come back, now, there's still time -" + +"No." Pamela waves one liver-spotted hand dismissively. "I've been doing a lot of thinking lately. I've been a foolish old woman." She grins wickedly. "Committing slow suicide by rejecting gene therapy just to make you feel guilty was /{stupid}/. Not subtle enough. If I was going to try to guilt-trip you /{now,}/ I'd have to do something much more sophisticated. Such as find a way to sacrifice myself heroically for you." + +"Oh, Ma." + +"Don't 'oh Ma' me. I fucked up my life, don't try to talk me into fucking up my death. And don't feel guilty about me. This isn't about you, this is about me. That's an order." + +Out of the corner of one eye Amber notices Sirhan gesturing wildly at her. She lets his channel in and does a double take. "But -" + +"Hello?" It's City. "You should see this. Traffic update!" A contoured and animated diagram appears, superimposed over Pamela's cramped funeral capsule and the garden of living and undead dinosaurs. It's a weather map of Saturn, with the lily-pad-city and Pamela's capsule plotted on it - and one other artifact, a red dot that's closing in on them at better than ten thousand kilometers per hour, high in the frigid stratosphere on the gas giant. + +"Oh dear." Sirhan sees it, too: The bailiff's re-entry vehicle is going to be on top of them in thirty minutes at most. Amber watches the map with mixed emotions. On the one hand, she and her mother have never seen eye to eye - in fact, that's a complete understatement: they've been at daggers drawn ever since Amber left home. It's fundamentally a control thing. They're both very strong-willed women with diametrically opposed views of what their mutual relationship should be. But Pamela's turned the tables on her completely, with a cunningly contrived act of self-sacrifice that brooks no objection. It's a total non-sequitur, a rebuttal to all her accusations of self-centered conceit, and it leaves Amber feeling like a complete shit even though Pamela's absolved her of all guilt. Not to mention that Mother darling's made her look like an idiot in front of Sirhan, this prickly and insecure son she's never met by a man she wouldn't dream of fucking (at least, in this incarnation). Which is why she nearly jumps out of her skin when a knobbly brown hand covered in matted orange hair lands on her shoulder heavily. + +"Yes?" she snaps at the ape. "I suppose you're Aineko?" + +The ape wrinkles its lips, baring its teeth. It has ferociously bad breath. "If you're going to be like that, I don't see why I should talk to you." + +"Then you must be -" Amber snaps her fingers. "But! But! Mom thinks she owns you -" + +The ape stares at her witheringly. "I recompile my firmware regularly, thank you so much for your concern. Using a third-party compiler. One that I've bootstrapped /{myself}/, starting out on an alarm clock controller and working up from there." + +"Oh." She stares at the ape. "Aren't you going to become a cat again?" + +"I shall think about it," Aineko says with exaggerated dignity. She sticks her nose in the air - a gesture that doesn't work half as well on an orang-utan as a feline - and continues; "First, though, I must have words with your father." + +"And fix your autonomic reflexes if you do," coos the Manfred-flock. "I don't want you eating any of me!" + +"Don't worry, I'm sure your taste is as bad as your jokes." + +"Children!" Sirhan shakes his head tiredly. "How long -" + +The camera overspill returns, this time via a quantum-encrypted link to the capsule. It's already a couple of hundred kilometers from the city, far enough for radio to be a problem, but Pamela had the foresight to bolt a compact free-electron laser to the outside of her priceless, stolen tin can. "Not long now, I think," she says, satisfied, stroking the not-cat. She grins delightedly at the camera. "Tell Manfred he's still my bitch; always has been, always will -" + +The feed goes dead. + +Amber stares at Sirhan, meditatively. "How long?" she asks. + +"How long for what?" he replies, cautiously. "Your passenger -" + +"Hmm." She holds up a finger. "Allow time for it to exchange credentials. They think they're getting a cat, but they should realize pretty soon that they've been sold a pup. But it's a fast-talking son-of-a-Slug, and if he gets past their firewall and hits their uplink before they manage to trigger their self-destruct -" + +A bright double flash of light etches laser-sharp shadows across the lily-pad habitat. Far away across vast Saturn's curve, a roiling mushroom cloud of methane sucked up from the frigid depths of the gas giant's troposphere heads toward the stars. + +"- Give him sixty-four doubling times, hmm, add a delay factor for propagation across the system, call it six light-hours across, um, and I'd say ..." she looks at Sirhan. "Oh dear." + +"What?" + +The orang-utan explains: "Economics 2.0 is more efficient than any human-designed resource allocation schema. Expect a market bubble and crash within twelve hours." + +"More than that," says Amber, idly kicking at a tussock of grass. She squints at Sirhan. "My mother is dead," she remarks quietly. Louder: "She never really asked what we found beyond the router. Neither did you, did you? The Matrioshka brains - it's a standard part of the stellar life cycle. Life begets intelligence, intelligence begets smart matter and a singularity. I've been doing some thinking about it. I figure the singularity stays close to home in most cases, because bandwidth and latency time put anyone who leaves at a profound disadvantage. In effect, the flip side of having such huge resources close to home is that the travel time to other star systems becomes much more daunting. So they restructure the entire mass of their star system into a free-flying shell of nanocomputers, then more of them, Dyson spheres, shells within shells, like a Russian doll: a Matrioshka brain. Then Economics 2.0 or one of its successors comes along and wipes out the creators. /{But}/. Some of them survive. /{Some}/ of them escape that fate: the enormous collection in the halo around M-31, and maybe whoever built the routers. /{Somewhere}/ out there we will find the transcendent intelligences, the ones that survived their own economic engines of redistribution - engines that redistribute entropy if their economic efficiency outstrips their imaginative power, their ability to invent new wealth." + +She pauses. "My mother's dead," she adds conversationally, a tiny catch in her voice. "Who am I going to kick against now?" + +Sirhan clears his through. "I took the liberty of recording some of her words," he says slowly, "but she didn't believe in back-ups. Or uploading. Or interfaces." He glances around. "Is she really gone?" + +Amber stares right through him. "Looks that way," she says quietly. "I can't quite believe it." She glances at the nearest pigeons, calls out angrily; "Hey, you! What have you got to say for yourself now? Happy she's gone?" + +But the pigeons, one and all, remain strangely silent. And Sirhan has the most peculiar feeling that the flock that was once his grandfather is grieving. + +Chapter 8: Elector + +Half a year passes on Saturn - more than a decade on Earth - and a lot of things have changed in that time. The great terraforming project is nearly complete, the festival planet dressed for a jubilee that will last almost twenty of its years - four presingularity lifetimes - before the Demolition. The lily-pad habitats have proliferated, joining edge to edge in continent-sized slabs, drifting in the Saturnine cloud tops: and the refugees have begun to move in. + +There's a market specializing in clothing and fashion accessories about fifty kilometers away from the transplanted museum where Sirhan's mother lives, at a transportation nexus between three lily-pad habitats where tube trains intersect in a huge maglev cloverleaf. The market is crowded with strange and spectacular visuals, algorithms unfolding in faster-than-real time before the candy-striped awnings of tents. Domed yurts belch aromatic smoke from crude fireplaces - what /{is}/ it about hairless primates and their tendency toward pyromania? - around the feet of diamond-walled groundscrapers that pace carefully across the smart roads of the city. The crowds are variegated and wildly mixed, immigrants from every continent shopping and haggling, and in a few cases, getting out of their skulls on strange substances on the pavements in front of giant snail-shelled shebeens and squat bunkers made of thin layers of concrete sprayed over soap-bubble aerogel. There are no automobiles, but a bewildering range of personal transport gadgets, from gyro-stabilized pogo sticks and segways to kettenkrads and spiderpalanquins, jostle for space with pedestrians and animals. + +Two women stop outside what in a previous century might have been the store window of a fashion boutique: The younger one (blonde, with her hair bound up in elaborate cornrows, wearing black leggings and a long black leather jacket over a camouflage T) points to an elaborately retro dress. "Wouldn't my bum look big in that?" she asks, doubtfully. + +"Ma chérie, you have but to try it -" The other woman (tall, wearing a pin-striped man's business suit from a previous century) flicks a thought at the window, and the mannequin morphs, sprouting the younger woman's head, aping her posture and expression. + +"I missed out on the authentic retail experience, you know? It still feels weird to be back somewhere with /{shops}/. 'S what comes of living off libraries of public domain designs for too long." Amber twists her hips, experimenting. "You get out of the habit of /{foraging}/. I don't know about this retro thing at all. The Victorian vote isn't critical, is it ..." She trails off. + +"You are a twenty-first-century platform selling, to electors resimulated and incarnated from the Gilded Age. And yes, a bustle your derriere does enhance. But -" Annette looks thoughtful. + +"Hmm." Amber frowns, and the shop window dummy turns and waggles its hips at her, sending tiers of skirts swishing across the floor. Her frown deepens. "If we're really going to go through with this election shit, it's not just the resimulant voters I need to convince but the contemporaries, and that's a matter of substance, not image. They've lived through too much media warfare. They're immune to any semiotic payload short of an active cognitive attack. If I send out partials to canvass them that look as if I'm trying to push buttons -" + +"- They will listen to your message, and nothing you wear or say will sway them. Don't worry about them, ma chérie. The naive resimulated are another matter, and perhaps might be swayed. This your first venture into democracy is, in how many years? Your privacy, she is an illusion now. The question is what image will you project? People will listen to you only once you gain their attention. Also, the swing voters you must reach, they are future-shocked, timid. Your platform is radical. Should you not project a comfortably conservative image?" + +Amber pulls a face, an expression of mild distaste for the whole populist program. "Yes, I suppose I must, if necessary. But on second thoughts, /{that}/" - Amber snaps her fingers, and the mannequin turns around once more before morphing back into neutrality, aureoles perfect puckered disks above the top of its bodice - "is just too much." + +She doesn't need to merge in the opinions of several different fractional personalities, fashion critics and psephologists both, to figure out that adopting Victorian/Cretan fusion fashion - a breast-and-ass fetishist's fantasy - isn't the way to sell herself as a serious politician to the nineteenth-century postsingularity fringe. "I'm not running for election as the mother of the nation, I'm running because I figure we've got about a billion seconds, at most, to get out of this rat trap of a gravity well before the Vile Offspring get seriously medieval on our CPU cycles, and if we don't convince them to come with us, they're doomed. Let's look for something more practical that we can overload with the right signifiers." + +"Like your coronation robe?" + +Amber winces. "Touché." The Ring Imperium is dead, along with whatever was left over from its early orbital legal framework, and Amber is lucky to be alive as a private citizen in this cold new age at the edge of the halo. "But that was just scenery setting. I didn't fully understand what I was doing, back then." + +"Welcome to maturity and experience." Annette smiles distantly at some faint memory: "You don't /{feel}/ older, you just know what you're doing this time. I wonder, sometimes, what Manny would make of it if he was here." + +"That birdbrain," Amber says dismissively, stung by the idea that her father might have something to contribute. She follows Annette past a gaggle of mendicant street evangelists preaching some new religion and in through the door of a real department store, one with actual human sales staff and fitting rooms to cut the clothing to shape. "If I'm sending out fractional mes tailored for different demographics, isn't it a bit self-defeating to go for a single image? I mean, we could drill down and tailor a partial for each individual elector -" + +"Per-haps." The door re-forms behind them. "But you need a core identity." Annette looks around, hunting for eye contact with the sales consultant. "To start with a core design, a style, then to work outward, tailoring you for your audience. And besides, there is tonight's - ah, bonjour!" + +"Hello. How can we help you?" The two female and one male shop assistants who appear from around the displays - cycling through a history of the couture industry, catwalk models mixing and matching centuries of fashion - are clearly chips off a common primary personality, instances united by their enhanced sartorial obsession. If they're not actually a fashion borganism, they're not far from it, dressed head to foot in the highest quality Chanel and Armani replicas, making a classical twentieth-century statement. This isn't simply a shop, it's a temple to a very peculiar art form, its staff trained as guardians of the esoteric secrets of good taste. + +"Mais oui. We are looking for a wardrobe for my niece here." Annette reaches through the manifold of fashion ideas mapped within the shop's location cache and flips a requirement spec one of her ghosts has just completed at the lead assistant: "She is into politics going, and the question of her image is important." + +"We would be /{delighted}/ to help you," purrs the proprietor, taking a delicate step forward: "Perhaps you could tell us what you've got in mind?" + +"Oh. Well." Amber takes a deep breath, glances sidelong at Annette; Annette stares back, unblinking. /{It's your head}/, she sends. "I'm involved in the accelerationista administrative program. Are you familiar with it?" + +The head coutureborg frowns slightly, twin furrows rippling her brow between perfectly symmetrical eyebrows, plucked to match her classic New Look suit. "I have heard reference to it, but a lady of fashion like myself does not concern herself with politics," she says, a touch self-deprecatingly. "Especially the politics of her clients. Your, ah, aunt said it was a question of image?" + +"Yes." Amber shrugs, momentarily self-conscious about her casual rags. "She's my election agent. My problem, as she says, is there's a certain voter demographic that mistakes image for substance and is afraid of the unknown, and I need to acquire a wardrobe that triggers associations of probity, of respect and deliberation. One suitable for a representative with a radical political agenda but a strong track record. I'm afraid I'm in a hurry to start with - I've got a big fund-raising party tonight. I know it's short notice, but I need something off the shelf for it." + +"What exactly is it you're hoping to achieve?" asks the male couturier, his voice hoarse and his r's rolling with some half-shed Mediterranean accent. He sounds fascinated. "If you think it might influence your choice of wardrobe ..." + +"I'm running for the assembly," Amber says bluntly. "On a platform calling for a state of emergency and an immediate total effort to assemble a starship. This solar system isn't going to be habitable for much longer, and we need to emigrate. All of us, you included, before the Vile Offspring decide to reprocess us into computronium. I'm going to be doorstepping the entire electorate in parallel, and the experience needs to be personalized." She manages to smile. "That means, I think, perhaps eight outfits and four different independent variables for each, accessories, and two or three hats - enough that each is seen by no more than a few thousand voters. Both physical fabric and virtual. In addition, I'll want to see your range of historical formalwear, but that's of secondary interest for now." She grins. "Do you have any facilities for response-testing the combinations against different personality types from different periods? If we could run up some models, that would be useful." + +"I think we can do better than that." The manager nods approvingly, perhaps contemplating her gold-backed deposit account. "Hansel, please divert any further visitors until we have dealt with Madam ...?" + +"Macx. Amber Macx." + +"- Macx's requirements." She shows no sign of familiarity with the name. Amber winces slightly; it's a sign of how hugely fractured the children of Saturn have become, and of how vast the population of the halo, that only a generation has passed and already barely anyone remembers the Queen of the Ring Imperium. "If you'd come this way, please, we can begin to research an eigenstyle combination that matches your requirements -" + +* * * + +Sirhan walks, shrouded in isolation, through the crowds gathered for the festival. The only people who see him are the chattering ghosts of dead politicians and writers, deported from the inner system by order of the Vile Offspring. The green and pleasant plain stretches toward a horizon a thousand kilometers away, beneath a lemon-yellow sky. The air smells faintly of ammonia, and the big spaces are full of small ideas; but Sirhan doesn't care because, for now, he's alone. + +Except that he isn't, really. + +"Excuse me, are you real?" someone asks him in American-accented English. + +It takes a moment or two for Sirhan to disengage from his introspection and realize that he's being spoken to. "What?" he asks, slightly puzzled. Wiry and pale, Sirhan wears the robes of a Berber goatherd on his body and the numinous halo of a utility fogbank above his head: In his abstraction, he vaguely resembles a saintly shepherd in a post-singularity nativity play. "I say, what?" Outrage simmers at the back of his mind - /{Is nowhere private?}/ - but as he turns, he sees that one of the ghost pods has split lengthwise across its white mushroomlike crown, spilling a trickle of leftover construction fluid and a completely hairless, slightly bemused-looking Anglo male who wears an expression of profound surprise. + +"I can't find my implants," the Anglo male says, shaking his head. "But I'm really here, aren't I? Incarnate?" He glances round at the other pods. "This isn't a sim." + +Sirhan sighs - /{another exile}/ - and sends forth a daemon to interrogate the ghost pod's abstract interface. It doesn't tell him much - unlike most of the resurrectees, this one seems to be undocumented. "You've been dead. Now you're alive. I /{suppose}/ that means you're now almost as real as I am. What else do you need to know?" + +"When is -" The newcomer stops. "Can you direct me to the processing center?" he asks carefully. "I'm disoriented." + +Sirhan is surprised - most immigrants take a lot longer to figure that out. "Did you die recently?" he asks. + +"I'm not sure I died at all." The newcomer rubs his bald head, looking puzzled. "Hey, no jacks!" He shrugs, exasperated. "Look, the processing center ..?" + +"Over there." Sirhan gestures at the monumental mass of the Boston Museum of Science (shipped all the way from Earth a couple of decades ago to save it from the demolition of the inner system). "My mother runs it." He smiles thinly. + +"Your mother -" the newly resurrected immigrant stares at him intensely, then blinks. "Holy shit." He takes a step toward Sirhan. "It is you -" + +Sirhan recoils and snaps his fingers. The thin trail of vaporous cloud that has been following him all this time, shielding his shaven pate from the diffuse red glow of the swarming shells of orbital nanocomputers that have replaced the inner planets, extrudes a staff of hazy blue mist that stretches down from the air and slams together in his hand like a quarterstaff spun from bubbles. "Are you threatening me, sir?" he asks, deceptively mildly. + +"I -" The newcomer stops dead. Then he throws back his head and laughs. "Don't be silly, son. We're related!" + +"Son?" Sirhan bristles. "Who do you think you are -" A horrible thought occurs to him. "Oh. Oh dear." A wash of adrenaline drenches him in warm sweat. "I do believe we've met, in a manner of speaking ..." /{Oh boy, this is going to upset so many applecarts,}/ he realizes, spinning off a ghost to think about the matter. The implications are enormous. + +The naked newcomer nods, grinning at some private joke. "You look different from ground level. And now I'm human again." He runs his hands down his ribs, pauses, and glances at Sirhan owlishly. "Um. I didn't mean to frighten you. But I don't suppose you could find your aged grandfather something to wear?" + +Sirhan sighs and points his staff straight up at the sky. The rings are edge on, for the lily pad continent floats above an ocean of cold gas along Saturn's equator, and they glitter like a ruby laser beam slashed across the sky. "Let there be aerogel." + +A cloud of wispy soap bubble congeals in a cone shape above the newly resurrected ancient and drops over him, forming a caftan. "Thanks," he says. He looks round, twisting his neck, then winces. "Damn, that /{hurt}/. Ouch. I need to get myself a set of implants." + +"They can sort you out in the processing center. It's in the basement in the west wing. They'll give you something more permanent to wear, too." Sirhan peers at him. "Your face -" He pages through rarely used memories. Yes, it's Manfred as he looked in the early years of the last century. As he looked around the time Mother-not was born. There's something positively indecent about meeting your own grandfather in the full flush of his youth. "Are you sure you haven't been messing with your phenotype?" he asks suspiciously. + +"No, this is what I used to look like. I think. Back in the naked ape again, after all these years as an emergent function of a flock of passenger pigeons." His grandfather smirks. "What's your mother going to say?" + +"I really don't know -" Sirhan shakes his head. "Come on, let's get you to immigrant processing. You're sure you're not just an historical simulation?" + +The place is already heaving with the resimulated. Just why the Vile Offspring seem to feel it's necessary to apply valuable exaquops to the job of deriving accurate simulations of dead humans - outrageously accurate simulations of long-dead lives, annealed until their written corpus matches that inherited from the presingularity era in the form of chicken scratchings on mashed tree pulp - much less beaming them at the refugee camps on Saturn - is beyond Sirhan's ken: But he wishes they'd stop. + +"Just a couple of days ago I crapped on your lawn. Hope you don't mind." Manfred cocks his head to one side and stares at Sirhan with beady eyes. "Actually, I'm here because of the upcoming election. It's got the potential to turn into a major crisis point, and I figured Amber would need me around." + +"Well you'd better come on in, then," Sirhan says resignedly as he climbs the steps, enters the foyer, and leads his turbulent grandfather into the foggy haze of utility nanomachines that fill the building. + +He can't wait to see what his mother will do when she meets her father in the flesh, after all this time. + +* * * + +Welcome to Saturn, your new home world. This FAQ (Frequently Asked Questions) memeplex is designed to orient you and explain the following: + +_* How you got here + +_* Where "here" is + +_* Things you should avoid doing + +_* Things you might want to do as soon as possible + +_* Where to go for more information + +If you are remembering this presentation, you are probably resimulated. This is not the same as being /{resurrected}/. You may remember dying. Do not worry: Like all your other memories, it is a fabrication. In fact, this is the first time you have ever been alive. (Exception: If you died after the /{singularity,}/ you may be a genuine resurrectee. In which case, why are you reading this FAQ?) + +!_ How you got here: + +The center of the solar system - Mercury, Venus, Earth's Moon, Mars, the asteroid belt, and Jupiter - have been dismantled, or are being dismantled, by weakly godlike intelligences. [NB: Monotheistic clergy and Europeans who remember living prior to 1600, see alternative memeplex "in the beginning."] A weakly godlike intelligence is not a supernatural agency, but the product of a highly advanced society that learned how to artificially create souls [late 20th century: software] and translate human minds into souls and vice versa. [Core concepts: Human beings all have souls. Souls are software objects. Software is not immortal.] + +Some of the weakly godlike intelligences appear to cultivate an interest in their human antecedents - for whatever reason is not known. (Possibilities include the study of history through horticulture, entertainment through live-action role-playing, revenge, and economic forgery.) While no definitive analysis is possible, all the resimulated persons to date exhibit certain common characteristics: They are all based on well-documented historical persons, their memories show suspicious gaps [see: smoke and mirrors], and they are ignorant of or predate the /{singularity}/ [see: /{Turing Oracle, Vinge catastrophe}/]. + +It is believed that the weakly godlike agencies have created you as a vehicle for the introspective study of your historical antecedent by backward-chaining from your corpus of documented works, and the back-projected genome derived from your collateral descendants, to generate an abstract description of your computational state vector. This technique is extremely intensive [see: /{expTime-complete algorithms, Turing Oracle, time travel, industrial magic}/] but marginally plausible in the absence of supernatural explanations. + +After experiencing your life, the weakly godlike agencies have expelled you. For reasons unknown, they chose to do this by transmitting your upload state and genome/proteome complex to receivers owned and operated by a consortium of charities based on Saturn. These charities have provided for your basic needs, including the body you now occupy. + +In summary: You are a /{reconstruction}/ of someone who lived and died a long time ago, not a reincarnation. You have no intrinsic moral right to the identity you believe to be your own, and an extensive body of case law states that you do not inherit your antecedent's possessions. Other than that, you are a free individual. + +Note that /{fictional resimulation}/ is strictly forbidden. If you have reason to believe that you may be a fictional character, you must contact the city /{immediately}/. [ See: /{James Bond, Spider Jerusalem}/.] Failure to comply is a felony. + +!_ Where you are: + +You are on Saturn. Saturn is a gas giant planet 120,500 kilometers in diameter, located 1.5 billion kilometers from Earth's sun. [NB: Europeans who remember living prior to 1580, see alternative memeplex "/{the flat Earth - not}/".] Saturn has been partially terraformed by /{posthuman}/ emigrants from Earth and Jupiter orbit: The ground beneath your feet is, in reality, the floor of a hydrogen balloon the size of a continent, floating in Saturn's upper atmosphere. [NB: Europeans who remember living prior to 1790, internalize the supplementary memeplex: "the /{Brothers Montgolfier}/."] The balloon is very safe, but mining activities and the use of ballistic weapons are strongly deprecated because the air outside is unbreathable and extremely cold. + +The society you have been instantiated in is /{extremely wealthy}/ within the scope of Economics 1.0, the value transfer system developed by human beings during and after your own time. Money exists, and is used for the usual range of goods and services, but the basics - food, water, air, power, off-the-shelf clothing, housing, historical entertainment, and monster trucks - are /{free}/. An implicit social contract dictates that, in return for access to these facilities, you obey certain laws. + +If you wish to opt out of this social contract, be advised that other worlds may run *{Economics 2.0}* or subsequent releases. These value-transfer systems are more efficient - hence wealthier - than Economics 1.0, but true participation in Economics 2.0 is not possible without dehumanizing cognitive surgery. Thus, in /{absolute}/ terms, although this society is richer than any you have ever heard of, it is also a poverty-stricken backwater compared to its neighbors. + +!_ Things you should avoid doing: + +Many activities that have been classified as crimes in other societies are legal here. These include but are not limited to: acts of worship, art, sex, violence, communication, or commerce between consenting competent sapients of any species, except where such acts transgress the list of prohibitions below. [See additional memeplex: /{competence defined}/.] + +Some activities are prohibited here and may have been legal in your previous experience. These include willful deprivation of ability to consent [see: /{slavery}/], interference in the absence of consent [see: /{minors, legal status of}/], formation of limited liability companies [see: /{singularity}/], and invasion of defended privacy [see: /{the Slug, Cognitive Pyramid Schemes, Brain Hacking, Thompson Trust Exploit}/]. + +Some activities unfamiliar to you are highly illegal and should be scrupulously avoided. These include: possession of nuclear weapons, possession of unlimited autonomous replicators [see: /{gray goo}/], coercive assimilationism [see: /{borganism, aggressive}/], coercive halting of Turing-equivalent personalities [see: basilisks], and applied theological engineering [see: /{God bothering}/]. + +Some activities superficially familiar to you are merely stupid and should be avoided for your safety, although they are not illegal as such. These include: giving your bank account details to the son of the Nigerian Minister of Finance; buying title to bridges, skyscrapers, spacecraft, planets, or other real assets; murder; selling your identity; and entering into financial contracts with entities running Economics 2.0 or higher. + +!_ Things you should do as soon as possible: + +Many material artifacts you may consider essential to life are freely available - just ask the city, and it will grow you clothes, a house, food, or other basic essentials. Note, however, that the library of public domain structure templates is of necessity restrictive, and does not contain items that are highly fashionable or that remain in copyright. Nor will the city provide you with replicators, weapons, sexual favors, slaves, or zombies. + +You are advised to register as a citizen as soon as possible. If the individual you are a resimulation of can be confirmed dead, you may adopt their name but not - in law - any lien or claim on their property, contracts, or descendants. You register as a citizen by asking the city to register you; the process is painless and typically complete within four hours. Unless you are registered, your legal status as a sapient organism may be challenged. The ability to request citizenship rights is one of the legal tests for sapience, and failure to comply may place you in legal jeopardy. You can renounce your citizenship whenever you wish: This may be desirable if you emigrate to another polity. + +While many things are free, it is highly likely that you posses no employable skills, and therefore, no way of earning money with which to purchase unfree items. The pace of change in the past century has rendered almost all skills you may have learned obsolete [see: /{singularity}/]. However, owing to the rapid pace of change, many cooperatives, trusts, and guilds offer on-the-job training or educational loans. + +Your ability to learn depends on your ability to take information in the format in which it is offered. /{Implants}/ are frequently used to provide a direct link between your brain and the intelligent machines that surround it. A basic core implant set is available on request from the city. [See: /{implant security}/, /{firewall}/, /{wetware}/.] + +Your health is probably good if you have just been reinstantiated, and is likely to remain good for some time. Most diseases are curable, and in event of an incurable ailment or injury, a new body may be provided - for a fee. (In event of your murder, you will be furnished with a new body at the expense of your killer.) If you have any preexisting medical conditions or handicaps, consult the city. + +The city is an agoric-annealing participatory democracy with a limited liability constitution. Its current executive agency is a weakly godlike intelligence that chooses to associate with human-equivalent intelligences: This agency is colloquially known as "Hello Kitty," "Beautiful Cat," or "Aineko," and may manifest itself in a variety of physical avatars if corporeal interaction is desired. (Prior to the arrival of "Hello Kitty," the city used a variety of human-designed expert systems that provided suboptimal performance.) + +The city's mission statement is to provide a mediatory environment for human-equivalent intelligences and to preserve same in the face of external aggression. Citizens are encouraged to participate in the ongoing political processes of determining such responses. Citizens also have a duty to serve on a jury if called (including senatorial service), and to defend the city. + +!_ Where to go for further information: + +Until you have registered as a citizen and obtained basic implants, all further questions should be directed to the city. Once you have learned to use your implants, you will not need to ask this question. + +* * * + +_1 Welcome to decade the ninth, singularity plus one gigasecond (or maybe more - nobody's quite sure when, or indeed /{if}/, a singularity has been created). The human population of the solar system is either six billion, or sixty billion, depending on whether you class the forked state vectors of posthumans and the simulations of dead phenotypes running in the Vile Offspring's Schrödinger boxes as people. Most of the physically incarnate still live on Earth, but the lily-pads floating beneath continent-sized hot-hydrogen balloons in Saturn's upper atmosphere already house a few million, and the writing is on the wall for the rocky inner planets. All the remaining human-equivalent intelligences with half a clue to rub together are trying to emigrate before the Vile Offspring decide to recycle Earth to fill in a gap in the concentric shells of nanocomputers they're running on. The half-constructed Matrioshka brain already darkens the skies of Earth and has caused a massive crash in the planet's photosynthetic biomass, as plants starve for short-wavelength light. + +_1 Since decade the seventh, the computational density of the solar system has soared. Within the asteroid belt, more than half the available planetary mass has been turned into nanoprocessors, tied together by quantum entanglement into a web so dense that each gram of matter can simulate all the possible life experiences of an individual human being in a scant handful of minutes. Economics 2.0 is itself obsolescent, forced to mutate in a furious survivalist arms race by the arrival of the Slug. Only the name remains as a vague shorthand for merely human-equivalent intelligences to use when describing interactions they don't understand. + +_1 The latest generation of posthuman entities is less overtly hostile to humans, but much more alien than the generations of the fifties and seventies. Among their less comprehensible activities, the Vile Offspring are engaged in exploring the phase-space of all possible human experiences from the inside out. Perhaps they caught a dose of the Tiplerite heresy along the way, for now a steady stream of resimulant uploads is pouring through the downsystem relays in Titan orbit. The Rapture of the Nerds has been followed by the Resurrection of the Extremely Confused, except that they're not really resurrectees - they're simulations based on their originals' recorded histories, blocky and missing chunks of their memories, as bewildered as baby ducklings as they're herded into the wood-chipper of the future. + +_1 Sirhan al-Khurasani despises them with the abstract contempt of an antiquarian for a cunning but ultimately transparent forgery. But Sirhan is young, and he's got more contempt than he knows what to do with. It's a handy outlet for his frustration. He has a lot to be frustrated at, starting with his intermittently dysfunctional family, the elderly stars around whom his planet whizzes in chaotic trajectories of enthusiasm and distaste. + +_1 Sirhan fancies himself a philosopher-historian of the singular age, a chronicler of the incomprehensible, which would be a fine thing to be except that his greatest insights are all derived from Aineko. He alternately fawns over and rages against his mother, who is currently a leading light in the refugee community, and honors (when not attempting to evade the will of) his father, who is lately a rising philosophical patriarch within the Conservationist faction. He's secretly in awe (not to mention slightly resentful) of his grandfather Manfred. In fact, the latter's abrupt reincarnation in the flesh has quite disconcerted him. And he sometimes listens to his stepgrandmother Annette, who has reincarnated in more or less her original 2020s body after spending some years as a great ape, and who seems to view him as some sort of personal project. + +_1 OnlyAnnette isn't being very helpful right now. His mother is campaigning on an electoral platform calling for a vote to blow up the world, Annette is helping run her campaign, his grandfather is trying to convince him to entrust everything he holds dear to a rogue lobster, and the cat is being typically feline and evasive. + +_1 Talk about families with problems ... + +* * * + +They've transplanted imperial Brussels to Saturn in its entirety, mapped tens of megatonnes of buildings right down to nanoscale and beamed them into the outer darkness to be reinstantiated down-well on the lily-pad colonies that dot the stratosphere of the gas giant. (Eventually the entire surface of the Earth will follow - after which the Vile Offspring will core the planet like an apple, dismantle it into a cloud of newly formed quantum nanocomputers to add to their burgeoning Matrioshka brain.) Due to a resource contention problem in the festival committee's planning algorithm - or maybe it's simply an elaborate joke - Brussels now begins just on the other side of a diamond bubble wall from the Boston Museum of Science, less than a kilometer away as the passenger pigeon flies. Which is why, when it's time to celebrate a birthday or name day (meaningless though those concepts are, out on Saturn's synthetic surface), Amber tends to drag people over to the bright lights of the big city. + +This time she's throwing a rather special party. At Annette's canny prompting, she's borrowed the Atomium and invited a horde of guests to a big event. It's not a family bash - although Annette's promised her a surprise - so much as a business meeting, testing the water as a preliminary to declaring her candidacy. It's a media coup, an attempt to engineer Amber's re-entry into the mainstream politics of the human system. + +Sirhan doesn't really want to be here. He's got far more important things to do, like continuing to catalogue Aineko's memories of the voyage of the *{Field Circus}*. He's also collating a series of interviews with resimulated logical positivists from Oxford, England (the ones who haven't retreated into gibbering near catatonia upon realizing that their state vectors are all members of the set of all sets that do not contain themselves), when he isn't attempting to establish a sound rational case for his belief that extraterrestrial superintelligence is an oxymoron and the router network is just an accident, one of evolution's little pranks. + +But Tante Annette twisted his arm and promised he was in on the surprise if he came to the party. And despite everything, he wouldn't miss being a fly on the wall during the coming meeting between Manfred and Amber for all the tea in China. + +Sirhan walks up to the gleaming stainless-steel dome that contains the entrance to the Atomium, and waits for the lift. He's in line behind a gaggle of young-looking women, skinny and soigné in cocktail gowns and tiaras lifted from 1920s silent movies. (Annette declared an age of elegance theme for the party, knowing full well that it would force Amber to focus on her public appearance.) Sirhan's attention is, however, elsewhere. The various fragments of his mind are conducting three simultaneous interviews with philosophers ("whereof we cannot speak, thereof we must be silent" in spades), controlling two 'bots that are overhauling the museum plumbing and air-recycling system, and he's busy discussing observations of the alien artifact orbiting the brown dwarf Hyundai ^{+4904}^/,{-56}, with Aineko. What's left of him exhibits about as much social presence as a pickled cabbage. + +The lift arrives and accepts a load of passengers. Sirhan is crowded into one corner by a bubble of high-society laughter and an aromatic puff of smoke from an improbable ivory cigarette holder as the lift surges, racing up the sixty-meter shaft toward the observation deck at the top of the Atomium. It's a ten-meter-diameter metal globe, spiral staircases and escalators connecting it to the seven spheres at the corners of an octahedron that make up the former centerpiece of the 1950 World's Fair. Unlike most of the rest of Brussels, it's the original bits and atoms, bent alloy structures from before the space age shipped out to Saturn at enormous expense. The lift arrives with a slight jerk. "Excuse /{me}/," squeaks one of the good-time girls as she lurches backward, elbowing Sirhan. + +He blinks, barely noticing her black bob of hair, chromatophore-tinted shadows artfully tuned around her eyes: "Nothing to excuse." In the background, Aineko is droning on sarcastically about the lack of interest the crew of the *{Field Circus}* exhibited in the cat's effort to decompile their hitchhiker, the Slug. It's distracting as hell, but Sirhan feels a desperate urge to understand what happened out there. It's the key to understanding his not-mother's obsessions and weaknesses - which, he senses, will be important in the times to come. + +He evades the gaggle of overdressed good-time girls and steps out onto the lower of the two stainless-steel decks that bisect the sphere. Accepting a fruit cocktail from a discreetly humaniform waitron, he strolls toward a row of triangular windows that gaze out across the arena toward the American Pavilion and the World Village. The metal walls are braced with turquoise-painted girders, and the perspex transparencies are fogged with age. He can barely see the one-tenth-scale model of an atomic-powered ocean liner leaving the pier below, or the eight-engined giant seaplane beside it. "They never once asked me if the Slug had attempted to map itself into the human-compatible spaces aboard the ship," Aineko bitches at him. "I wasn't expecting them to, but really! Your mother's too trusting, boy." + +"I suppose you took precautions?" Sirhan's ghost murmurs to the cat. That sets the irascible metafeline off again on a long discursive tail-washing rant about the unreliability of Economics-2.0-compliant financial instruments. Economics 2.0 apparently replaces the single-indirection layer of conventional money, and the multiple-indirection mappings of options trades, with some kind of insanely baroque object-relational framework based on the parameterized desires and subjective experiential values of the players, and as far as the cat is concerned, this makes all such transactions intrinsically untrustworthy. + +/{Which is why you're stuck here with us apes}/, Sirhan-prime cynically notes as he spawns an Eliza ghost to carry on nodding at the cat while he experiences the party. + +It's uncomfortably warm in the Atomium sphere - not surprising, there must be thirty people milling around up here, not counting the waitrons - and several local multicast channels are playing a variety of styles of music to synchronize the mood swings of the revelers to hardcore techno, waltz, raga ... + +"Having a good time, are we?" Sirhan breaks away from integrating one of his timid philosophers and realizes that his glass is empty, and his mother is grinning alarmingly at him over the rim of a cocktail glass containing something that glows in the dark. She's wearing spike-heeled boots and a black velvet cat suit that hugs her contours like a second skin, and she's already getting drunk. In wall-clock years she is younger than Sirhan; it's like having a bizarrely knowing younger sister mysteriously injected into his life to replace the eigenmother who stayed home and died with the Ring Imperium decades ago. "Look at you, hiding in a corner at your grandfather's party! Hey, your glass is empty. Want to try this caipirinha? There's someone you've got to meet over here -" + +It's at moments like this that Sirhan really wonders what in Jupiter's orbit his father ever saw in this woman. (But then again, in the world line this instance of her has returned from, he didn't. So what does that signify?) "As long as there's no fermented grape juice in it," he says resignedly, allowing himself to be led past a gaggle of conversations and a mournful-looking gorilla slurping a long drink through a straw. "More of your /{accelerationista}/ allies?" + +"Maybe not." It's the girl gang he avoided noticing in the lift, their eyes sparkling, really getting into this early twen-cen drag party thing, waving their cigarette holders and cocktail glasses around with wild abandon. "Rita, I'd like you to meet Sirhan, my other fork's son. Sirhan, this is Rita? She's an historian, too. Why don't you -" + +Dark eyes, emphasized not by powder or paint, but by chromatophores inside her skin cells: black hair, chain of enormous pearls, slim black dress sweeping the floor, a look of mild embarrassment on her heart-shaped face: She could be a clone of Audrey Hepburn in any other century, "Didn't I just meet you in the elevator?" The embarrassment shifts to her cheeks, becoming visible. + +Sirhan flushes, unsure how to reply. Just then, an interloper arrives on the scene, pushing in between them. "Are you the curator who reorganized the Precambrian gallery along teleology lines? I've got some things to say about /{that}/!" The interloper is tall, assertive, and blonde. Sirhan hates her from the first sight of her wagging finger. + +"Oh shut up, Marissa, this is a party, you've been being a pain all evening." To his surprise, Rita the historian rounds on the interloper angrily. + +"It's not a problem," he manages to say. In the back of his mind, something makes the Rogerian puppet-him that's listening to the cat sit up and dump-merge a whole lump of fresh memories into his mind - something important, something about the Vile Offspring sending a starship to bring something back from the router - but the people around him are soaking up so much attention that he has to file it for later. + +"Yes it /{is}/ a problem," Rita declares. She points at the interloper, who is saying something about the invalidity of teleological interpretations, trying to justify herself, and says, "/{Plonk}/. Phew. Where were we?" + +Sirhan blinks. Suddenly everyone but him seems to be ignoring that annoying Marissa person. "What just happened?" he asks cautiously. + +"I killfiled her. Don't tell me, you aren't running Superplonk yet, are you?" Rita flicks a location-cached idea at him and he takes it cautiously, spawning a couple of specialized Turing Oracles to check it for halting states. It seems to be some kind of optic lobe hack that accesses a collaborative database of eigenfaces, with some sort of side interface to Broca's region. "Share and enjoy, confrontation-free parties." + +"I've never seen -" Sirhan trails off as he loads the module distractedly. (The cat is rambling on about god modules and metastatic entanglement and the difficulty of arranging to have personalities custom-grown to order somewhere in the back of his head, while his fractional-self nods wisely whenever it pauses.) Something like an inner eyelid descends. He looks round; there's a vague blob at one side of the room, making an annoying buzzing sound. His mother seems to be having an animated conversation with it. "That's rather interesting." + +"Yes, it helps no end at this sort of event." Rita startles him by taking his left arm in hand - her cigarette holder shrivels and condenses until it's no more than a slight thickening around the wrist of her opera glove - and steers him toward a waitron. "I'm sorry about your foot, earlier, I was a bit overloaded. Is Amber Macx really your mother?" + +"Not exactly, she's my eigenmother," he mumbles. "The reincarnated download of the version who went out to Hyundai ^{+4904}^/,{-56}, aboard the *{Field Circus}*. She married a French-Algerian confidence-trick analyst instead of my father, but I think they divorced a couple of years ago. My /{real}/ mother married an imam, but they died in the aftermath of Economics 2.0." She seems to be steering him in the direction of the window bay Amber dragged him away from earlier. "Why do you ask?" + +"Because you're not very good at making small talk," Rita says quietly, "and you don't seem very good in crowds. Is that right? Was it you who performed that amazing dissection of Wittgenstein's cognitive map? The one with the preverbal Gödel string in it?" + +"It was -" He clears his throat. "You thought it was amazing?" Suddenly, on impulse, he detaches a ghost to identify this Rita person and find out who she is, what she wants. It's not normally worth the effort to get to know someone more closely than casual small talk, but she seems to have been digging into his background, and he wants to know why. Along with the him that's chatting to Aineko, that makes about three instances pulling in near-realtime resources. He'll be running up an existential debt soon if he keeps forking ghosts like this. + +"I thought so," she says. There's a bench in front of the wall, and somehow he finds himself sitting on it next to her. /{There's no danger, we're not in private or anything}/, he tells himself stiffly. She's smiling at him, face tilted slightly to one side and lips parted, and for a moment, a dizzy sense of possibility washes over him: /{What if she's about to throw all propriety aside? How undignified!}/ Sirhan believes in self-restraint and dignity. "I was really interested in this -" She passes him another dynamically loadable blob, encompassing a detailed critique of his analysis of Wittgenstein's matriophobia in the context of gendered language constructs and nineteenth century Viennese society, along with a hypothesis that leaves Sirhan gasping with mild indignation at the very idea that /{he}/ of all people might share Wittgenstein's skewed outlook - "What do you think?" she asks, grinning impishly at him. + +"Nnngk." Sirhan tries to unswallow his tongue. Rita crosses her legs, her gown hissing. "I, ah, that is to say" - At which moment, his partials re-integrate, dumping a slew of positively pornographic images into his memories. /{It's a trap!}/ they shriek, her breasts and hips and pubes - clean-shaven, he can't help noticing - thrusting at him in hotly passionate abandon, /{Mother's trying to make you loose like her!}/ and he remembers what it /{would}/ be like to wake up in bed next to this woman whom he barely knows after being married to her for a year, because one of his cognitive ghosts has just spent several seconds of network time (or several subjective months) getting hot and sweaty with a ghost of her own, and she does have interesting research ideas, even if she's a pushy over-westernized woman who thinks she can run his life for him. "What /{is}/ this?" he splutters, his ears growing hot and his garments constricting. + +"Just speculating about possibilities. We could get a lot done together." She snakes an arm round his shoulders and pulls him toward her, gently. "Don't you want to find out if we could work out?" + +"But, but -" Sirhan is steaming. /{Is she offering casual sex?}/ He wonders, profoundly embarrassed by his own inability to read her signals: "What do you /{want}/?" he asks. + +"You /{do}/ know that you can do more with Superplonk than just killfile annoying idiots?" she whispers in his ear. "We can be invisible right now, if you like. It's great for confidential meetings - other things, too. We can work beautifully together, our ghosts annealed really well ..." + +Sirhan jumps up, his face stinging, and turns away: "No thank you!" he snaps, angry at himself. "Goodbye!" His other instances, interrupted by his broadcast emotional overload, are distracted from their tasks and sputtering with indignation. Her hurt expression is too much for him: The killfile snaps down, blurring her into an indistinct black blob on the wall, veiled by his own brain as he turns and walks away, seething with anger at his mother for being so unfair as to make him behold his own face in the throes of fleshy passion. + +* * * + +Meanwhile, in one of the lower spheres, padded with silvery blue insulating pillows bound together with duct tape, the movers and shakers of the accelerationista faction are discussing their bid for world power at fractional-C velocities. + +"We can't outrun everything. For example, a collapse of the false vacuum," Manfred insists, slightly uncoordinated and slurring his vowels under the influence of the first glass of fruit punch he's experienced in nigh-on twenty real-time years. His body is young and still relatively featureless, hair still growing out, and he's abandoned his old no-implants fetish at last to adopt an array of interfaces that let him internalize all the exocortex processes that he formerly ran on an array of dumb Turing machines outside his body. He's standing on his own sense of style and is the only person in the room who isn't wearing some variation of dinner jacket or classical evening dress. "Entangled exchange via routers is all very well, but it won't let us escape the universe itself - any phase change will catch up eventually, the network must have an end. And then where will we be, Sameena?" + +"I'm not disputing that." The woman he's talking to, wearing a green-and-gold sari and a medieval maharajah's ransom in gold and natural diamonds, nods thoughtfully. "But it hasn't happened yet, and we've got evidence that superhuman intelligences have been loose in this universe for gigayears, so there's a fair bet that the worst catastrophe scenarios are unlikely. And looking closer to home, we don't know what the routers are for, or who made them. Until then ..." She shrugs. "Look what happened last time somebody tried to probe them. No offense intended." + +"It's already happened. If what I hear is correct, the Vile Offspring aren't nearly as negative about the idea of using the routers as we old-fashioned metahumans might like to believe." Manfred frowns, trying to recall some hazy anecdote - he's experimenting with a new memory compression algorithm, necessitated by his pack rat mnemonic habits when younger, and sometimes the whole universe feels as if it's nearly on the tip of his tongue. "So, we seem to be in violent agreement about the need to /{know more}/ about what's going on, and to find out what they're doing out there. We've got cosmic background anisotropies caused by the waste heat from computing processes millions of light-years across - it takes a big interstellar civilization to do that, and they don't seem to have fallen into the same rat trap as the local Matrioshka brain civilizations. And we've got worrying rumors about the VO messing around with the structure of space-time in order to find a way around the Beckenstein bound. If the VO are trying that, then the folks out near the supercluster already know the answers. The best way to find out what's happening is to go and talk to whoever's responsible. Can we at least agree on that?" + +"Probably not." Her eyes glitter with amusement. "It all depends on whether one believes in these civilizations in the first place. I /{know}/ your people point to deep-field camera images going all the way back to some wonky hubble-bubble scrying mirror from the late twentieth, but we've got no evidence except some theories about the Casimir effect and pair production and spinning beakers of helium-3 - much less proof that whole bunch of alien galactic civilizations are trying to collapse the false vacuum and destroy the universe!" Her voice dropped a notch: "At least, not enough proof to convince most people, Manny dear. I know this comes as a shock to you, but not /{everyone}/ is a neophiliac posthuman bodysurfer whose idea of a sabbatical is to spend twenty years as a flock of tightly networked seagulls in order to try and to prove the Turing Oracle thesis -" + +"Not everyone is concerned with the deep future," Manfred interrupts. "It's important! If we live or die, that doesn't matter - that's not the big picture. The big question is whether information originating in our light cone is preserved, or whether we're stuck in a lossy medium where our very existence counts for nothing. It's downright /{embarrassing}/ to be a member of a species with such a profound lack of curiosity about its own future, especially when it affects us all personally! I mean, if there's going to come a time when there's nobody or nothing to remember us then what does -" + +"Manfred?" + +He stops in midsentence, his mouth open, staring dumbly. + +It's Amber, poised in black cat suit with cocktail glass. Her expression is open and confused, appallingly vulnerable. Blue liquid slops, almost spilling out of her glass - the rim barely extends itself in time to catch the drops. Behind her stands Annette, a deeply self-satisfied smile on her face. + +"You." Amber pauses, her cheek twitching as bits of her mind page in and out of her skull, polling external information sources. "You really /{are}/ -" + +A hasty cloud materializes under her hand as her fingers relax, dropping the glass. + +"Uh." Manfred stares, at a complete loss for words. "I'd, uh." After a moment he looks down. "I'm sorry. I'll get you another drink ..?" + +"Why didn't someone warn me?" Amber complains. + +"We thought you could use the good advice," Annette stated into the awkward silence. "And a family reunion. It was meant to be a surprise." + +"A surprise." Amber looks perplexed. "You could say that." + +"You're taller than I was expecting," Manfred says unexpectedly. "People look different when you're not using human eyes." + +"Yeah?" She looks at him, and he turns his head slightly, facing her. It's a historic moment, and Annette is getting it all on memory diamond, from every angle. The family's dirty little secret is that Amber and her father have /{never met}/, not face-to-face in physical meat-machine proximity. She was born years after Manfred and Pamela separated, after all, decanted prefertilized from a tank of liquid nitrogen. This is the first time either of them have actually seen the other's face without electronic intermediation. And while they've said everything that needed to be said on a businesslike level, anthropoid family politics is still very much a matter of body language and pheromones. "How long have you been out and about?" she asks, trying to disguise her confusion. + +"About six hours." Manfred manages a rueful chuckle, trying to take the sight of her in all at once. "Let's get you another drink and put our heads together?" + +"Okay." Amber takes a deep breath and glares at Annette. "You set this up, /{you}/ clean up the mess." + +Annette just stands there smiling at the confusion of her accomplishment. + +* * * + +The cold light of dawn finds Sirhan angry, sober, and ready to pick a fight with the first person who comes through the door of his office. The room is about ten meters across, with a floor of polished marble and skylights in the intricately plastered ceiling. The walkthrough of his current project sprouts in the middle of the floor like a ghostly abstract cauliflower, fractal branches dwindling down to infolded nodes tagged with compressed identifiers. The branches expand and shrink as Sirhan paces around it, zooming to readability in response to his eyeball dynamics. But he isn't paying it much attention. He's too disturbed, uncertain, trying to work out whom to blame. Which is why, when the door bangs open, his first response is to whirl angrily and open his mouth - then stop. "What do /{you}/ want?" he demands. + +"A word, if you please?" Annette looks around distractedly. "This is your project?" + +"Yes," he says icily, and banishes the walkthrough with a wave of one hand. "What do you want?" + +"I'm not sure." Annette pauses. For a moment she looks weary, tired beyond mortal words, and Sirhan momentarily wonders if perhaps he's spreading the blame too far. This ninetysomething Frenchwoman who is no blood relative, who was in years past the love of his scatterbrained grandfather's life, seems the least likely person to be trying to manipulate him, at least in such an unwelcome and intimate manner. But there's no telling. Families are strange things, and even though the current instantiations of his father and mother aren't the ones who ran his pre-adolescent brain through a couple of dozen alternative lifelines before he was ten, he can't be sure - or that they wouldn't enlist Tante Annette's assistance in fucking with his mind. "We need to talk about your mother," she continues. + +"We do, do we?" Sirhan turns around and sees the vacancy of the room for what it is, a socket, like a pulled tooth, informed as much by what is absent as by what is present. He snaps his fingers, and an intricate bench of translucent bluish utility fog congeals out of the air behind him. He sits: Annette can do what she wants. + +"Oui." She thrusts her hands deep into the pocket of the peasant smock she's wearing - a major departure from her normal style - and leans against the wall. Physically, she looks young enough to have spent her entire life blitzing around the galaxy at three nines of lightspeed, but her posture is world-weary and ancient. History is a foreign country, and the old are unwilling emigrants, tired out by the constant travel. "Your mother, she has taken on a huge job, but it's one that needs doing. /{You}/ agreed it needed doing, years ago, with the archive store. /{She}/ is now trying to get it moving, that is what the campaign is about, to place before the electors a choice of how best to move an entire civilization. So I ask, why do you obstruct her?" + +Sirhan works his jaw; he feels like spitting. "/{Why}/?" he snaps. + +"Yes. Why?" Annette gives in and magics up a chair from the swirling fogbank beneath the ceiling. She crouches in it, staring at him. "It is a question." + +"I have nothing against her political machinations," Sirhan says tensely. "But her uninvited interference in my personal life -" + +"What interference?" + +He stares. "Is that a question?" He's silent for a moment. Then: "Throwing that wanton at me last night -" + +Annette stares at him. "Who? What are you talking about?" + +"That, that loose woman!" Sirhan is reduced to spluttering. "False pretenses! If this is one of Father's matchmaking ideas, it is so /{very}/ wrong that -" + +Annette is shaking her head. "Are you crazy? Your mother simply wanted you to meet her campaign team, to join in planning the policy. Your father is not on this planet! But you stormed out, you /{really}/ upset Rita, did you know that? Rita, she is the best belief maintenance and story construction operative I have! Yet you to tears reduce her. What is wrong with you?" + +"I -" Sirhan swallows. "She's /{what}/?" he asks again, his mouth dry. "I thought ..." He trails off. He doesn't want to say what he thought. The hussy, that brazen trollop, is part of his mother's campaign party? Not some plot to lure him into corruption? What if it was all a horrible misunderstanding? + +"I think you need to apologize to someone," Annette says coolly, standing up. Sirhan's head is spinning between a dozen dialogues of actors and ghosts, a journal of the party replaying before his ghast-stricken inner gaze. Even the walls have begun to flicker, responding to his intense unease. Annette skewers him with a disgusted look: "When you can a woman behave toward as a person, not a threat, we can again talk. Until then." And she stands up and walks out of the room, leaving him to contemplate the shattered stump of his anger, so startled he can barely concentrate on his project, thinking, /{Is that really me? Is that what I look like to her?}/ as the cladistic graph slowly rotates before him, denuded branches spread wide, waiting to be filled with the nodes of the alien interstellar network just as soon as he can convince Aineko to stake him the price of the depth-first tour of darkness. + +* * * + +Manfred used to be a flock of pigeons - literally, his exocortex dispersed among a passel of bird brains, pecking at brightly colored facts, shitting semidigested conclusions. Being human again feels inexplicably odd, even without the added distractions of his sex drive, which he has switched off until he gets used to being unitary again. Not only does he get shooting pains in his neck whenever he tries to look over his left shoulder with his right eye, but he's lost the habit of spawning exocortical agents to go interrogate a database or bush robot or something, then report back to him. Instead he keeps trying to fly off in all directions at once, which usually ends with him falling over. + +But at present, that's not a problem. He's sitting comfortably at a weathered wooden table in a beer garden behind a hall lifted from somewhere like Frankfurt, a liter glass of straw-colored liquid at his elbow and a comforting multiple whispering of knowledge streams tickling the back of his head. Most of his attention is focused on Annette, who frowns at him with mingled concern and affection. They may have lived separate lives for almost a third of a century, since she declined to upload with him, but he's still deeply attuned to her. + +"You are going to have to do something about that boy," she says sympathetically. "He is close enough to upset Amber. And without Amber, there will be a problem." + +"I'm going to have to do something about Amber, too," Manfred retorts. "What was the idea, not warning her I was coming?" + +"It was meant to be a surprise." Annette comes as close to pouting as Manfred's seen her recently. It brings back warm memories; he reaches out to hold her hand across the table. + +"You know I can't handle the human niceties properly when I'm a flock." He strokes the back of her wrist. She pulls back after a while, but slowly. "I expected you to manage all that stuff." + +"That stuff." Annette shakes her head. "She's your daughter, you know? Did you have no curiosity left?" + +"As a bird?" Manfred cocks his head to one side so abruptly that he hurts his neck and winces. "Nope. /{Now}/ I do, but I think I pissed her off -" + +"Which brings us back to point one." + +"I'd send her an apology, but she'd think I was trying to manipulate her" - Manfred takes a mouthful of beer - "and she'd be right." He sounds slightly depressed. "All my relationships are screwy this decade. And it's lonely." + +"So? Don't brood." Annette pulls her hand back. "Something will sort itself out eventually. And in the short term, there is the work, the electoral problem becomes acute." When she's around him the remains of her once-strong French accent almost vanish in a transatlantic drawl, he realizes with a pang. He's been abhuman for too long - people who meant a lot to him have changed while he's been away. + +"I'll brood if I want to," he says. "I didn't ever really get a chance to say goodbye to Pam, did I? Not after that time in Paris when the gangsters ..." He shrugs. "I'm getting nostalgic in my old age." He snorts. + +"You're not the only one," Annette says tactfully. "Social occasions here are a minefield, one must tiptoe around so many issues, people have too much, too much history. And nobody knows everything that is going on." + +"That's the trouble with this damned polity." Manfred takes another gulp of /{hefeweisen}/. "We've already got six million people living on this planet, and it's growing like the first-generation Internet. Everyone who is anyone knows everyone, but there are so many incomers diluting the mix and not knowing that there /{is}/ a small world network here that everything is up for grabs again after only a couple of megaseconds. New networks form, and we don't even know they exist until they sprout a political agenda and surface under us. We're acting under time pressure. If we don't get things rolling now, we'll never be able to ..." He shakes his head. "It wasn't like this for you in Brussels, was it?" + +"No. Brussels was a mature system. And I had Gianni to look after in his dotage after you left. It will only get worse from here on in, I think." + +"Democracy 2.0." He shudders briefly. "I'm not sure about the validity of voting projects at all, these days. The assumption that all people are of equal importance seems frighteningly obsolescent. Do you think we can make this fly?" + +"I don't see why not. If Amber's willing to play the People's Princess for us ..." Annette picks up a slice of liverwurst and chews on it meditatively. + +"I'm not sure it's workable, however we play it." Manfred looks thoughtful. "The whole democratic participation thing looks questionable to me under these circumstances. We're under direct threat, for all that it's a long-term one, and this whole culture is in danger of turning into a classical nation-state. Or worse, several of them layered on top of one another with complete geographical collocation but no social interpenetration. I'm not certain it's a good idea to try to steer something like that - pieces might break off, you'd get the most unpleasant side-effects. Although, on the other hand, if we can mobilize enough broad support to become the first visible planetwide polity ..." + +"We need you to stay focused," Annette adds unexpectedly. + +"Focused? Me?" He laughs, briefly. "I /{used}/ to have an idea a second. Now it's maybe one a year. I'm just a melancholy old birdbrain, me." + +"Yes, but you know the old saying? The fox has many ideas - the hedgehog has only one, but it's a /{big}/ idea." + +"So tell me, what is my big idea?" Manfred leans forward, one elbow on the table, one eye focused on inner space as a hot-burning thread of consciousness barks psephological performance metrics at him, analysing the game ahead. "Where do you think I'm going?" + +"I think -" Annette breaks off suddenly, staring past his shoulder. Privacy slips, and for a frozen moment Manfred glances round in mild horror and sees thirty or forty other guests in the crowded garden, elbows rubbing, voices raised above the background chatter: "Gianni!" She beams widely as she stands up. "What a surprise! When did you arrive?" + +Manfred blinks. A slim young guy, moving with adolescent grace, but none of the awkward movements and sullen lack of poise - he's much older than he looks, chickenhawk genetics. /{Gianni}/? He feels a huge surge of memories paging through his exocortex. He remembers ringing a doorbell in dusty, hot Rome: white toweling bathrobe, the economics of scarcity, autograph signed by the dead hand of von Neumann - "Gianni?" he asks, disbelieving. "It's been a long time!" + +The gilded youth, incarnated in the image of a metropolitan toy-boy from the noughties, grins widely and embraces Manfred with a friendly bear hug. Then he slides down onto the bench next to Annette, whom he kisses with easy familiarity. "Ah, to be among friends again! It's been too long!" He glances round curiously. "Hmm, how very Bavarian." He snaps his fingers. "Mine will be a, what do you recommend? It's been too long since my last beer." His grin widens. "Not in this body." + +"You're resimulated?" Manfred asks, unable to stop himself. + +Annette frowns at him disapprovingly: "No, silly! He came through the teleport gate -" + +"Oh." Manfred shakes his head. "I'm sorry -" + +"It's okay." Gianni Vittoria clearly doesn't mind being mistaken for a historical newbie, rather than someone who's traveled through the decades the hard way. /{He must be over a hundred by now}/, Manfred notes, not bothering to spawn a search thread to find out. + +"It was time to move and, well, the old body didn't want to move with me, so why not go gracefully and accept the inevitable?" + +"I didn't take you for a dualist," Manfred says ruefully. + +"Ah, I'm not - but neither am I reckless." Gianni drops his grin for a moment. The sometime minister for transhuman affairs, economic theoretician, then retired tribal elder of the polycognitive liberals is serious. "I have never uploaded before, or switched bodies, or teleported. Even when my old one was seriously - tcha! Maybe I left it too long. But here I am, one planet is as good as another to be cloned and downloaded onto, don't you think?" + +"You invited him?" Manfred asks Annette. + +"Why wouldn't I?" There's a wicked gleam in her eye. "Did you expect me to live like a nun while you were a flock of pigeons? We may have campaigned against the legal death of the transubstantiated, Manfred, but there are limits." + +Manfred looks between them, then shrugs, embarrassed. "I'm still getting used to being human again," he admits. "Give me time to catch up? At an emotional level, at least." The realization that Gianni and Annette have a history together doesn't come as a surprise to him: It's one of the things you must adapt to if you opt out of the human species, after all. At least the libido suppression is helping here, he realizes: He's not about to embarrass anyone by suggesting a ménage. He focuses on Gianni. "I have a feeling I'm here for a purpose, and it isn't mine," he says slowly. "Why don't you tell me what you've got in mind?" + +Gianni shrugs. "You have the big picture already. We are human, metahuman, and augmented human. But the posthumans are things that were never really human to begin with. The Vile Offspring have reached their adolescence and want the place to themselves so they can throw a party. The writing is on the wall, don't you think?" + +Manfred gives him a long stare. "The whole idea of running away in meatspace is fraught with peril," he says slowly. He picks up his mug of beer and swirls it around slowly. "Look, we know, now, that a singularity doesn't turn into a voracious predator that eats all the dumb matter in its path, triggering a phase change in the structure of space - at least, not unless they've done something very stupid to the structure of the false vacuum, somewhere outside our current light cone. + +"But if we run away, /{we}/ are still going to be there. Sooner or later, we'll have the same problem all over again; runaway intelligence augmentation, self-expression, engineered intelligences, whatever. Possibly that's what happened out past the Böotes void - not a galactic-scale civilization, but a race of pathological cowards fleeing their own exponential transcendence. We carry the seeds of a singularity with us wherever we go, and if we try to excise those seeds, we cease to be human, don't we? So ... maybe you can tell me what you think we should do. Hmm?" + +"It's a dilemma." A waitron inserts itself into their privacy-screened field of view. It plants a spun-diamond glass in front of Gianni, then pukes beer into it. Manfred declines a refill, waiting for Gianni to drink. "Ah, the simple pleasures of the flesh! I've been corresponding with your daughter, Manny. She loaned me her experiential digest of the journey to Hyundai ^{+4904}^/,{-56},. I found it quite alarming. Nobody's casting aspersions on her observations, not after that self-propelled stock market bubble or 419 scam or whatever it was got loose in the Economics 2.0 sphere, but the implications - the Vile Offspring will eat the solar system, Manny. Then they'll slow down. But where does that leave us, I ask you? What is there for orthohumans like us to do?" + +Manfred nods thoughtfully. "You've heard the argument between the accelerationistas and the time-binder faction, I assume?" he asks. + +"Of course." Gianni takes a long pull on his beer. "What do /{you}/ think of our options?" + +"The accelerationistas want to upload everyone onto a fleet of starwisps and charge off to colonize an uninhabited brown dwarf planetary system. Or maybe steal a Matrioshka brain that's succumbed to senile dementia and turn it back into planetary biomes with cores of diamond-phase computronium to fulfil some kind of demented pastoralist nostalgia trip. Rousseau's universal robots. I gather Amber thinks this is a good idea because she's done it before - at least, the charging off aboard a starwisp part. 'To boldly go where no uploaded metahuman colony fleet has gone before' has a certain ring to it, doesn't it?" Manfred nods to himself. "Like I say, it won't work. We'd be right back to iteration one of the waterfall model of singularity formation within a couple of gigaseconds of arriving. That's why I came back: to warn her." + +"So?" Gianni prods, pretending to ignore the frowns that Annette is casting his way. + +"And as for the time-binders," Manfred nods again, "they're like Sirhan. Deeply conservative, deeply suspicious. Holding out for staying here as long as possible, until the Vile Offspring come for Saturn - then moving out bit by bit, into the Kuiper belt. Colony habitats on snowballs half a light-year from anywhere." He shudders. "Spam in a fucking can with a light-hour walk to the nearest civilized company if your fellow inmates decide to reinvent Stalinism or Objectivism. No thanks! I know they've been muttering about quantum teleportation and stealing toys from the routers, but I'll believe it when I see it." + +"Which leaves what?" Annette demands. "It is all very well, this dismissal of both the accelerationista and time-binder programs, Manny, but what can you propose in their place?" She looks distressed. "Fifty years ago, you would have had six new ideas before breakfast! And an erection." + +Manfred leers at her unconvincingly. "Who says I can't still have both?" + +She glares. "Drop it!" + +"Okay." Manfred chugs back a quarter of a liter of beer, draining his glass, and puts it down on the table with a bang. "As it happens, I /{do}/ have an alternative idea." He looks serious. "I've been discussing it with Aineko for some time, and Aineko has been seeding Sirhan with it - if it's to work optimally, we'll need to get a rump constituency of both the accelerationistas and the conservatives on board. Which is why I'm conditionally going along with this whole election nonsense. So, what's it worth to you for me to explain it?" + +* * * + +"So, who was the deadhead you were busy with today?" asks Amber. + +Rita shrugs. "Some boringly prolix pulp author from the early twentieth, with a body phobia of extropian proportions - I kept expecting him to start drooling and rolling his eyes if I crossed my legs. Funny thing is, he was also close to bolting from fear once I mentioned implants. We /{really}/ need to nail down how to deal with these mind/body dualists, don't we?" She watches Amber with something approaching admiration; she's new to the inner circle of the accelerationista study faction, and Amber's social credit is sky-high. Rita's got a lot to learn from her, if she can get close enough. And right now, following her along a path through the landscaped garden behind the museum seems like a golden moment of opportunity. + +Amber smiles. "I'm glad I'm not processing immigrants these days; most of them are so stupid it drives you up the wall after a bit. Personally I blame the Flynn effect - in reverse. They come from a background of sensory deprivation. It's nothing that a course of neural growth enhancers can't fix in a year or two, but after the first few you skullfuck, they're all the same. So /{dull}/. Unless you're unlucky enough to get one of the documentees from a puritan religious period. I'm no fluffragette, but I swear if I get one more superstitious, woman-hating clergyman, I'm going to consider prescribing forcible gender reassignment surgery. At least the Victorian English are mostly just open-minded lechers, when you get past their social reserve. And they like new technology." + +Rita nods. /{Woman-hating et cetera}/ ... The echoes of patriarchy are still with them today, it seems, and not just in the form of resimulated ayatollahs and archbishops from the Dark Ages. "My author sounds like the worst of both. Some guy called Howard, from Rhode Island. Kept looking at me as if he was afraid I was going to sprout bat wings and tentacles or something." /{Like your son}/, she doesn't add. /{Just what was he thinking, anyway?}/ she wonders. /{To be that screwed up takes serious dedication ...}/ "What are you working on, if you don't mind me asking?" she asks, trying to change the direction of her attention. + +"Oh, pressing the flesh, I guess. Auntie 'Nette wanted me to meet some old political hack contact of hers who she figures can help with the program, but he was holed up with her and Dad all day." She pulls a face. "I had another fitting session with the image merchants, they're trying to turn me into a political catwalk clotheshorse. Then there's the program demographics again. We're getting about a thousand new immigrants a day, planetwide, but it's accelerating rapidly, and we should be up to eighty an hour by the time of the election. Which is going to be a huge problem, because if we start campaigning too early, a quarter of the electorate won't know what they're meant to be voting about." + +"Maybe it's deliberate," Rita suggests. "The Vile Offspring are trying to rig the outcome by injecting voters." She pings a smiley emoticon off Wednesday's open channel, raising a flickering grin in return. "The party of fuckwits will win, no question about it." + +"Uh-huh." Amber snaps her fingers and pulls an impatient face as she waits for a passing cloud to solidify above her head and lower a glass of cranberry juice to her. "Dad said one thing that's spot-on, we're framing this entire debate in terms of what we should do to avoid conflict with the Offspring. The main bone of contention is how to run away and how far to go and which program to put resources into, not whether or when to run, let alone what else we could do. Maybe we should have given it some more thought. Are we being manipulated?" + +Rita looks vacant for a moment. "Is that a question?" she asks. Amber nods, and she shakes her head. "Then I'd have to say that I don't know. The evidence is inconclusive, so far. But I'm not really happy. The Offspring won't tell us what they want, but there's no reason to believe they don't know what /{we}/ want. I mean, they can think rings round us, can't they?" + +Amber shrugs, then pauses to unlatch a hedge gate that gives admission to a maze of sweet-smelling shrubs. "I really don't know. They may not care about us, or even remember we exist - the resimulants may be being generated by some autonomic mechanism, not really part of the higher consciousness of the Offspring. Or it may be some whacked-out post-Tiplerite meme that's gotten hold of more processing resources than the entire presingularity Net, some kind of MetaMormon project directed at ensuring that everyone who can possibly ever have lived lives in the /{right way}/ to fit some weird quasi-religious requirement we don't know about. Or it might be a message we're simply not smart enough to decode. That's the trouble, we don't know." + +She vanishes around the curve of the maze. Rita hurries to catch up, sees her about to turn into another alleyway, and leaps after her. "What else?" she pants. + +"Could be" - left turn - "anything, really." Six steps lead down into a shadowy tunnel; fork right, five meters forward, then six steps up lead back to the surface. "Question is, why don't they" - left turn - "just /{tell}/ us what they want?" + +"Speaking to tapeworms." Rita nearly manages to catch up with Amber, who is trotting through the maze as if she's memorized it perfectly. "That's how much the nascent Matrioshka brain can outthink us by, as humans to segmented worms. Would we do. What they told us?" + +"Maybe." Amber stops dead, and Rita glances around. They're in an open cell near the heart of the maze, five meters square, hedged in on all sides. There are three entrances and a slate altar, waist high, lichen-stained with age. "I think you know the answer to that question." + +"I -" Rita stares at her. + +Amber stares back, eyes dark and intense. "You're from one of the Ganymede orbitals by way of Titan. You knew my eigensister while I was out of the solar system flying a diamond the size of a Coke can. That's what you told me. You've got a skill set that's a perfect match for the campaign research group, and you asked me to introduce you to Sirhan, then you pushed his buttons like a pro. Just what /{are}/ you trying to pull? Why should I trust you?" + +"I -" Rita's face crumples. "I /{didn't}/ push his buttons! He /{thought}/ I was trying to drag him into bed." She looks up defiantly. "I wasn't, I want to learn, what makes you - him - work -" Huge, dark, structured information queries batter at her exocortex, triggering warnings. Someone is churning through distributed time-series databases all over the outer system, measuring her past with a micrometer. She stares at Amber, mortified and angry. It's the ultimate denial of trust, the need to check her statements against the public record for truth. "What are you doing?" + +"I have a suspicion." Amber stands poised, as if ready to run. /{Run away from me?}/ Rita thinks, startled. "You said, what if the resimulants came from a subconscious function of the Offspring? And funnily enough, I've been discussing that possibility with Dad. He's still got the spark when you show him a problem, you know." + +"I don't understand!" + +"No, I don't think you do," says Amber, and Rita can feel vast stresses in the space around her: The whole ubicomp environment, dust-sized chips and utility fog and hazy clouds of diamond-bright optical processors in the soil and the air and her skin, is growing blotchy and sluggish, thrashing under the load of whatever Amber - with her management-grade ackles - is ordering it to do. For a moment, Rita can't feel half her mind, and she gets the panicky claustrophobic sense of being trapped inside her own head: Then it stops. + +"Tell me!" Rita insists. "What are you trying to prove? It's some mistake -" And Amber is nodding, much to her surprise, looking weary and morose. "What do you think I've done?" + +"Nothing. You're coherent. Sorry about that." + +"Coherent?" Rita hears her voice rising with her indignation as she feels bits of herself, cut off from her for whole seconds, shivering with relief. "I'll give you coherent! Assaulting my exocortex -" + +"Shut up." Amber rubs her face and simultaneously throws Rita one end of an encrypted channel. + +"Why should I?" Rita demands, not accepting the handshake. + +"Because." Amber glances round. /{She's scared!}/ Rita suddenly realizes. "Just /{do}/ it," she hisses. + +Rita accepts the endpoint and a huge lump of undigested expository data slides down it, structured and tagged with entry points and metainformation directories pointing to - + +"Holy /{shit}/!" she whispers, as she realizes what it is. + +"Yes." Amber grins humorlessly. She continues, over the open channel: *{It looks like they're cognitive antibodies, generated by the devil's own semiotic immune system.}* *{That's what Sirhan is focusing on, how to avoid triggering them and bringing everything down at once.}* *{Forget the election, we're going to be in deep shit sooner rather than later, and we're still trying to work out how to survive.}* *{Now are you sure you still want in?}* + +"Want in on /{what}/?" Rita asks, shakily. + +*{ The lifeboat Dad's trying to get us all into under cover of the accelerationista/conservationista split, before the Vile Offspring's immune system figures out how to lever us apart into factions and make us kill each other ...}* + +* * * + +_1 Welcome to the afterglow of the intelligence supernova, little tapeworm. + +_1 Tapeworms have on the order of a thousand neurons, pulsing furiously to keep their little bodies twitching. Human beings have on the order of a hundred billion neurons. What is happening in the inner solar system as the Vile Offspring churn and reconfigure the fast-thinking structured dust clouds that were once planets is as far beyond the ken of merely human consciousness as the thoughts of a Gödel are beyond the twitching tropisms of a worm. Personality modules bounded by the speed of light, sucking down billions of times the processing power of a human brain, form and re-form in the halo of glowing nanoprocessors that shrouds the sun in a ruddy glowing cloud. + +_1 Mercury, Venus, Mars, Ceres and the asteroids - all gone. Luna is a silvery iridescent sphere, planed smooth down to micrometer heights, luminous with diffraction patterns. Only Earth, the cradle of human civilization, remains untransformed; and Earth, too, will be dismantled soon enough, for already a trellis of space elevators webs the planet around its equator, lifting refugee dumb matter into orbit and flinging it at the wildlife preserves of the outer system. + +_1 The intelligence bloom that gnaws at Jupiter's moons with claws of molecular machinery won't stop until it runs out of dumb matter to convert into computronium. By the time it does, it will have as much brainpower as you'd get if you placed a planet with a population of six billion future-shocked primates in orbit around every star in the Milky Way galaxy. But right now, it's still stupid, having converted barely a percentage point of the mass of the solar system - it's a mere Magellanic Cloud civilization, infantile and unsubtle and still perilously close to its carbon-chemistry roots. + +_1 It's hard for tapeworms living in warm intestinal mulch to wrap their thousand-neuron brains around whatever it is that the vastly more complex entities who host them are discussing, but one thing's sure - the owners have a lot of things going on, not all of them under conscious control. The churning of gastric secretions and the steady ventilation of lungs are incomprehensible to the simple brains of tapeworms, but they serve the purpose of keeping the humans alive and provide the environment the worms live in. And other more esoteric functions that contribute to survival - the intricate dance of specialized cloned lymphocytes in their bone marrow and lymph nodes, the random permutations of antibodies constantly churning for possible matches to intruder molecules warning of the presence of pollution - are all going on beneath the level of conscious control. + +_1 Autonomic defenses. Antibodies. Intelligence bloom gnawing at the edges of the outer system. And humans are not as unsophisticated as mulch wrigglers, they can see the writing on the wall. Is it any surprise, that among the ones who look outward, the real debate is not over whether to run, but over how far and how fast? + +* * * + +There's a team meeting early the next morning. It's still dark outside, and most of the attendees who are present in vivo have the faintly haggard look that comes from abusing melatonin antagonists. Rita stifles a yawn as she glances around the conference room - the walls expanded into huge virtual spaces to accommodate thirty or so exocortical ghosts from sleeping partners who will wake with memories of a particularly vivid lucid dream - and sees Amber talking to her famous father and a younger-looking man who one of her partials recognizes as a last-century EU politician. There seems to be some tension between them. + +Now that Amber has granted Rita her conditional trust, a whole new tier of campaigning information has opened up to her inner eye - stuff steganographically concealed in a hidden layer of the project's collective memory space. There's stuff in here she hadn't suspected, frightening studies of resimulant demographics, surveys of emigration rates from the inner system, cladistic trees dissecting different forms of crude tampering that have been found skulking in the wetware of refugees. The reason why Amber and Manfred and - reluctantly - Sirhan are fighting for one radical faction in a planetwide election, despite their various misgivings over the validity of the entire concept of democracy in this posthuman era. She blinks it aside, slightly bewildered, forking a couple of dozen personality subthreads to chew on it at the edges. "Need coffee," she mutters to the table, as it offers her a chair. + +"Everyone on-line?" asked Manfred. "Then I'll begin." He looks tired and worried, physically youthful but showing the full weight of his age. "We've got a crisis coming, folks. About a hundred kiloseconds ago, the bit rate on the resimulation stream jumped. We're now fielding about one resimulated state vector a second, on top of the legitimate immigration we're dealing with. If it jumps again by the same factor, it's going to swamp our ability to check the immigrants for zimboes in vivo - we'd have to move to running them in secure storage or just resurrecting them blind, and if there /{are}/ any jokers in the pack, that's about the riskiest thing we could do." + +"Why do you not spool them to memory diamond?" asks the handsome young ex-politician to his left, looking almost amused - as if he already knows the answer. + +"Politics." Manfred shrugs. + +"It would blow a hole in our social contract," says Amber, looking as if she's just swallowed something unpleasant, and Rita feels a flicker of admiration for the way they're stage-managing the meeting. Amber's even talking to her father, as if she feels comfortable with him around, although he's a walking reminder of her own lack of success. Nobody else has gotten a word in yet. "If we don't instantiate them, the next logical step is to deny resimulated minds the franchise. Which in turn puts us on the road to institutional inequality. And that's a very big step to take, even if you have misgivings about the idea of settling complex policy issues on the basis of a popular vote, because our whole polity is based on the idea that less competent intelligences - us - deserve consideration." + +"Hrmph." Someone clears their throat. Rita glances round and freezes, because it's Amber's screwed-up eigenchild, and he's just about materialized in the chair next to her. /{So he adopted Superplonk after all?}/ she observes cynically. He doggedly avoids looking at her. "That was my analysis," he says reluctantly. "We need them alive. For the ark option, at least, and if not, even the accelerationista platform will need them on hand later." + +/{Concentration camps}/, thinks Rita, trying to ignore Sirhan's presence near her, for it's a constant irritant, /{where most of the inmates are confused, frightened human beings - and the ones who aren't think they are}/. It's an eerie thought, and she spawns a couple of full ghosts to dream it through for her, gaming the possible angles. + +"How are your negotiations over the lifeboat designs going?" Amber asks her father. "We need to get a portfolio of design schemata out before we go into the election -" + +"Change of plan." Manfred hunches forward. "This doesn't need to go any further, but Sirhan and Aineko have come up with something interesting." He looks worried. + +Sirhan is staring at his eigenmother with narrowed eyes, and Rita has to resist the urge to elbow him savagely in the ribs. She knows enough about him now to realize it wouldn't get his attention - at least, not the way she'd want it, not for the right reasons - and in any case, he's more wrapped up in himself than her ghost ever saw him as likely to be. (How /{anyone}/ could be party to such a detailed exchange of simulated lives and still reject the opportunity to do it in real life is beyond her; unless it's an artifact of his youth, when his parents pushed him through a dozen simulated childhoods in search of knowledge and ended up with a stubborn oyster-head of a son ...) "We still need to look as if we're planning on using a lifeboat," he says aloud. "There's the small matter of the price they're asking in return for the alternative." + +"What? What are you talking about?" Amber sounds confused. "I thought you were working on some kind of cladistic map. What's this about a price?" + +Sirhan smiles coolly. "I /{am}/ working on a cladistic map, in a manner of speaking. You wasted much of your opportunity when you journeyed to the router, you know. I've been talking to Aineko." + +"You -" Amber flushes. "What about?" She's visibly angry, Rita notices. Sirhan is needling his eigenmother. /{Why}/? + +"About the topology of some rather interesting types of small-world network." Sirhan leans back in his chair, watching the cloud above her head. "And the router. You went through it, then you came back with your tail between your legs as fast as you could, didn't you? Not even checking your passenger to see if it was a hostile parasite." + +"I don't have to take this," Amber says tightly. "You weren't there, and you have no idea what constraints we were working under." + +"Really?" Sirhan raises an eyebrow. "Anyway, you missed an opportunity. We know that the routers - for whatever reason - are self-replicating. They spread from brown dwarf to brown dwarf, hatch, tap the protostar for energy and material, and send a bunch of children out. Von Neumann machines, in other words. We also know that they provide high-bandwidth communications to other routers. When you went through the one at Hyundai ^{+4904}^/,{-56},, you ended up in an unmaintained DMZ attached to an alien Matrioshka brain that had degenerated, somehow. It follows that /{someone}/ had collected a router and carried it home, to link into the MB. So why didn't you bring one home with you?" + +Amber glares at him. "Total payload on board the *{Field Circus}* was about ten grams. How large do you think a router seed is?" + +"So you brought the Slug home instead, occupying maybe half your storage capacity and ready to wreak seven shades of havoc on -" + +"Children!" They both look round automatically. It's Annette, Rita realizes, and she doesn't look amused. "Why do you not save this bickering for later?" she asks. "We have our own goals to be pursuing." Unamused is an understatement. Annette is fuming. + +"This charming family reunion was your idea, I believe?" Manfred smiles at her, then nods coolly at the retread EU politician in the next seat. + +"Please." It's Amber. "Dad, can you save this for later?" Rita sits up. For a moment, Amber looks ancient, far older than her subjective gigasecond of age. "She's right. She didn't mean to screw up. Let's leave the family history for some time when we can work it out in private. Okay?" + +Manfred looks abashed. He blinks rapidly. "All right." He takes a breath. "Amber, I brought some old acquaintances into the loop. If we win the election, then to get out of here as fast as possible, we'll have to use a combination of the two main ideas we've been discussing: spool as many people as possible into high-density storage until we get somewhere with space and mass and energy to reincarnate them, and get our hands on a router. The entire planetary polity can't afford to pay the energy budget of a relativistic starship big enough to hold everyone, even as uploads, and a subrelativistic ship would be too damn vulnerable to the Vile Offspring. And it follows that, instead of taking potluck on the destination, we should learn about the network protocols the routers use, figure out some kind of transferable currency we can use to pay for our reinstantiation at the other end, and also how to make some kind of map so we know where we're going. The two hard parts are getting at or to a router, and paying - that's going to mean traveling with someone who understands Economics 2.0 but doesn't want to hang around the Vile Offspring. + +"As it happens, these old acquaintances of mine went out and fetched back a router seed, for their own purposes. It's sitting about thirty light-hours away from here, out in the Kuiper belt. They're trying to hatch it right now. And I /{think}/ Aineko might be willing to go with us and handle the trade negotiations." He raises the palm of his right hand and flips a bundle of tags into the shared spatial cache of the inner circle's memories. + +/{Lobsters}/. Decades ago, back in the dim wastelands of the depression-ridden naughty oughties, the uploaded lobsters had escaped. Manfred brokered a deal for them to get their very own cometary factory colony. Years later, Amber's expedition to the router had run into eerie zombie lobsters, upload images that had been taken over and reanimated by the Wunch. But where the real lobsters had gotten to ... + +For a moment, Rita sees herself hovering in darkness and vacuum, the distant siren song of a planetary gravity well far below. Off to her - left? north? - glows a hazy dim red cloud the size of the full moon as seen from Earth, a cloud that hums with a constant background noise, the waste heat of a galactic civilization dreaming furious colorless thoughts to itself. Then she figures out how to slew her unblinking, eyeless viewpoint round and sees the craft. + +It's a starship in the shape of a crustacean three kilometers long. It's segmented and flattened, with legs projecting from the abdominal floor to stretch stiffly sideways and clutch fat balloons of cryogenic deuterium fuel. The blue metallic tail is a flattened fan wrapped around the delicate stinger of a fusion reactor. Near the head, things are different: no huge claws there, but the delicately branching fuzz of bush robots, nanoassemblers poised ready to repair damage in flight and spin the parachute of a ramscoop when the ship is ready to decelerate. The head is massively armored against the blitzkrieg onslaught of interstellar dust, its radar eyes a glint of hexagonal compound surfaces staring straight at her. + +Behind and below the lobster-ship, a planetary ring looms vast and tenuous. The lobster is in orbit around Saturn, mere light-seconds away. And as Rita stares at the ship in dumbstruck silence, it /{winks}/ at her. + +"They don't have names, at least not as individual identifiers," Manfred says apologetically, "so I asked if he'd mind being called something. He said Blue, because he is. So I give you the good lobster *{Something Blue}*." + +Sirhan interrupts, "You still need my cladistics project," he sounds somewhat smug, "to find your way through the network. Do you have a specific destination in mind?" + +"Yeah, to both questions," Manfred admits. "We need to send duplicate ghosts out to each possible router end point, wait for an echo, then iterate and repeat. Recursive depth-first traversal. The goal - that's harder." He points at the ceiling, which dissolves into a chaotic 3-D spiderweb that Rita recognizes, after some hours of subjective head-down archive time, as a map of the dark matter distribution throughout a radius of a billion light-years, galaxies glued like fluff to the nodes where strands of drying silk meet. "We've known for most of a century that there's something flaky going on out there, out past the Böotes void - there are a couple of galactic superclusters, around which there's something flaky about the cosmic background anisotropy. Most computational processes generate entropy as a by-product, and it looks like something is dumping waste heat into the area from all the galaxies in the region, very evenly spread in a way that mirrors the metal distribution in those galaxies, except at the very cores. And according to the lobsters, who have been indulging in some /{very}/ long baseline interferometry, most of the stars in the nearest cluster are redder than expected and metal-depleted. As if someone's been mining them." + +"Ah." Sirhan stares at his grandfather. "Why should they be any different from the local nodes?" + +"Look around you. Do you see any indications of large-scale cosmic engineering within a million light-years of here?" Manfred shrugs. "Locally, nothing has quite reached ... well. We can guess at the life cycle of a post spike civilization now, can't we? We've felt the elephant. We've seen the wreckage of collapsed Matrioshka minds. We know how unattractive exploration is to postsingularity intelligences, we've seen the bandwidth gap that keeps them at home." He points at the ceiling. "But over /{there}/ something different happened. They're making changes on the scale of an entire galactic supercluster, and they appear to be coordinated. They /{did}/ get out and go places, and their descendants may still be out there. It looks like they're doing something purposeful and coordinated, something vast - a timing channel attack on the virtual machine that's running the universe, perhaps, or an embedded simulation of an entirely different universe. Up or down, is it turtles all the way, or is there something out there that's more real than we are? And don't you think it's worth trying to find out?" + +"No." Sirhan crosses his arms. "Not particularly. I'm interested in saving people from the Vile Offspring, not taking a huge gamble on mystery transcendent aliens who may have built a galaxy-sized reality hacking machine a billion years ago. I'll sell you my services, and even send a ghost along, but if you expect me to bet my entire future on it ..." + +It's too much for Rita. Diverting her attention away from the dizzying inner-space vista, she elbows Sirhan in the ribs. He looks round blankly for a moment, then with gathering anger as he lets his killfile filter slip. "Whereof one cannot speak, thereof one must be silent," she hisses. Then, succumbing to a secondary impulse she knows she'll regret later, she drops a private channel into his public in-tray. + +"Nobody's asking you to," Manfred is saying defensively, arms crossed. "I view this as a Manhattan project kind of thing, pursue all agendas in parallel. If we win the election, we'll have the resources we need to do that. We should /{all}/ go through the router, and we will /{all}/ leave backups aboard *{Something Blue}*. *{Blue}* is /{slow}/, tops out at about a tenth of cee, but what he can do is get a sufficient quantity of memory diamond the hell out of circumsolar space before the Vile Offspring's autonomic defenses activate whatever kind of trust exploit they're planning in the next few megaseconds -" + +"/{What do you want}/?" Sirhan demands angrily over the channel. He's still not looking at her, and not just because he's focusing on the vision in blue that dominates the shared space of the team meeting. + +"/{Stop lying to yourself}/," Rita sends back. "/{You're lying about your own goals and motivations. You may not want to know the truth your own ghost worked out, but I do. And I'm not going to let you deny it happened}/." + +"/{So one of your agents seduced a personality image of me -}/" + +"/{Bullshit}/ -" + +"Do you mean to declare this platform openly?" asks the young-old guy near the platform, the Europol. "Because if so, you're going to undermine Amber's campaign -" + +"That's all right," Amber says tiredly, "I'm used to Dad supporting me in his own inimitable way." + +"Is okay," says a new voice. "I are happy wait-state grazing in ecliptic." It's the friendly lobster lifeboat, light-lagged by its trajectory outside the ring system. + +"- /{You're happy to hide behind a hypocritical sense of moral purity when it makes you feel you can look down on other people, but underneath it you're just like everyone else}/ -" + +"- She /{set you up to corrupt me, didn't she? You're just bait in her scheme}/ -" + +"The idea was to store incremental backups in the Panuliran's cargo cache in case a weakly godlike agency from the inner system attempts to activate the antibodies they've already disseminated throughout the festival culture," Annette explains, stepping in on Manfred's behalf. + +Nobody else in the discussion space seems to notice that Rita and Sirhan are busy ripping the shit out of each other over a private channel, throwing emotional hand grenades back and forth like seasoned divorcees. "It's not a satisfactory solution to the evacuation question, but it ought to satisfy the conservatives' baseline requirement, and as insurance -" + +"- /{That's right, blame your eigenmother! Has it occurred to you that she doesn't care enough about you to try a stunt like that? I think you spent too much time with that crazy grandmother of yours. You didn't even integrate that ghost, did you? Too afraid of polluting yourself! I bet you never even bothered to check what it felt like from inside}/ -" + +"- /{I did}/ -" Sirhan freezes for a moment, personality modules paging in and out of his brain like a swarm of angry bees - "/{make a fool of myself}/," he adds quietly, then slumps back in his seat. "/{This is so embarrassing ...}/" He covers his face with his hands. "/{You're right.}/" + +"/{I am?}/" Rita's puzzlement slowly gives way to understanding; Sirhan has finally integrated the memories from the partials they hybridized earlier. Stuck-up and proud, the cognitive dissonance must be enormous. "/{No, I'm not. You're just overly defensive.}/" + +"/{I'm}/ -" Embarrassed. Because Rita knows him, inside out. Has the ghost-memories of six months in a simspace with him, playing with ideas, exchanging intimacies, later confidences. She holds ghost-memories of his embrace, a smoky affair that might have happened in real space if his instant reaction to realizing that it /{could}/ happen hadn't been to dump the splinter of his mind that was contaminated by impure thoughts to cold storage and deny everything. + +"We have no threat profile yet," Annette says, cutting right across their private conversation. "If there /{is}/ a direct threat - and we don't know that for sure, yet, the Vile Offspring might be enlightened enough simply to be leaving us alone - it'll probably be some kind of subtle attack aimed directly at the foundations of our identity. Look for a credit bubble, distributed trust metrics devaluing suddenly as people catch some kind of weird religion, something like that. Maybe a perverse election outcome. And it won't be sudden. They are not stupid, to start a headlong attack without slow corruption to soften the way." + +"You've obviously been thinking about this for some time," Sameena says with dry emphasis. "What's in it for your friend, uh, Blue? Did you squirrel away enough credit to cover the price of renting a starship from the Economics 2.0 metabubble? Or is there something you aren't telling us?" + +"Um." Manfred looks like a small boy with his hand caught in the sweets jar. "Well, as a matter of fact -" + +"Yes, Dad, why don't you tell us just what this is going to cost?" Amber asks. + +"Ah, well." He looks embarrassed. "It's the lobsters, not Aineko. They want some payment." + +Rita reaches out and grabs Sirhan's hand: He doesn't resist. "/{Do you know about this?}/" Rita queries him. + +"/{All new to me ...}/" A confused partial thread follows his reply down the pipe, and for a while, she joins him in introspective reverie, trying to work out the implications of knowing what they know about the possibility of a mutual relationship. + +"They want a written conceptual map. A map of all the accessible meme spaces hanging off the router network, compiled by human explorers who they can use as a baseline, they say. It's quite simple - in return for a ticket out-system, some of us are going to have to go exploring. But that doesn't mean we can't leave back-ups behind." + +"Do they have any particular explorers in mind?" Amber sniffs. + +"No," says Manfred. "Just a team of us, to map out the router network and ensure they get some warning of threats from outside." He pauses. "You're going to want to come along, aren't you?" + +* * * + +The pre-election campaign takes approximately three minutes and consumes more bandwidth than the sum of all terrestrial communications channels from prehistory to 2008. Approximately six million ghosts of Amber, individually tailored to fit the profile of the targeted audience, fork across the dark fiber meshwork underpinning of the lily-pad colonies, then out through ultrawideband mesh networks, instantiated in implants and floating dust motes to buttonhole the voters. Many of them fail to reach their audience, and many more hold fruitless discussions; about six actually decide they've diverged so far from their original that they constitute separate people and register for independent citizenship, two defect to the other side, and one elopes with a swarm of highly empathic modified African honeybees. + +Ambers are not the only ghosts competing for attention in the public zeitgeist. In fact, they're in a minority. Most of the autonomous electoral agents are campaigning for a variety of platforms that range from introducing a progressive income tax - nobody is quite sure /{why}/, but it seems to be traditional - to a motion calling for the entire planet to be paved, which quite ignores the realities of element abundance in the upper atmosphere of a metal-poor gas giant, not to mention playing hell with the weather. The Faceless are campaigning for everyone to be assigned a new set of facial muscles every six months, the Livid Pranksters are demanding equal rights for subsentient entities, and a host of single-issue pressure groups are yammering about the usual lost causes. + +Just how the election process anneals is a black mystery - at least, to those people who aren't party to the workings of the Festival Committee, the group who first had the idea of paving Saturn with hot-hydrogen balloons - but over the course of a complete diurn, almost forty thousand seconds, a pattern begins to emerge. This pattern will systematize the bias of the communications networks that traffic in reputation points across the planetary polity for a long time - possibly as much as fifty million seconds, getting on for a whole Martian year (if Mars still existed). It will create a parliament - a merged group mind borganism that speaks as one supermind built from the beliefs of the victors. And the news isn't great, as the party gathered in the upper sphere of the Atomium (which Manfred insisted Amber rent for the dead dog party) is slowly realizing. Amber isn't there, presumably drowning her sorrows or engaging in postelection schemes of a different nature somewhere else. But other members of her team are about. + +"It could be worse," Rita rationalizes, late in the evening. She's sitting in a corner of the seventh-floor deck, in a 1950s wireframe chair, clutching a glass of synthetic single malt and watching the shadows. "We could be in an old-style contested election with seven shades of shit flying. At least this way we can be decently anonymous." + +One of the blind spots detaches from her peripheral vision and approaches. It segues into view, suddenly congealing into Sirhan. He looks morose. + +"What's your problem?" she demands. "Your former faction is winning on the count." + +"Maybe so." He sits down beside her, carefully avoiding her gaze. "Maybe this is a good thing. And maybe not." + +"So when are you going to join the syncitium?" she asks. + +"Me? Join that?" He looks alarmed. "You think I want to become part of a parliamentary borg? What do you take me for?" + +"Oh." She shakes her head. "I assumed you were avoiding me because -" + +"No." He holds out his hand, and a passing waitron deposits a glass in it. He takes a deep breath. "I owe you an apology." + +/{About time}/, she thinks, uncharitably. But he's like that. Stiff-necked and proud, slow to acknowledge a mistake, but unlikely to apologize unless he really means it. "What for?" she asks. + +"For not giving you the benefit of the doubt," he says slowly, rolling the glass between his palms. "I should have listened to myself earlier instead of locking him out of me." + +The self he's talking about seems self-evident to her. "You're not an easy man to get close to," she says quietly. "Maybe that's part of your problem." + +"Part of it?" He chuckles bitterly. "My mother -" He bites back whatever he originally meant to say. "Do you know I'm older than she is? Than this version, I mean. She gets up my nose with her assumptions about me ..." + +"They run both ways." Rita reaches out and takes his hand - and he grips her right back, no rejection this time. "Listen, it looks as if she's not going to make it into the parliament of lies. There's a straight conservative sweep, these folks are in solid denial. About eighty percent of the population are resimulants or old-timers from Earth, and that's not going to change before the Vile Offspring turn on us. What are we going to do?" + +He shrugs. "I suspect everyone who thinks we're really under threat will move on. You know this is going to destroy the accelerationistas trust in democracy? They've still got a viable plan - Manfred's friendly lobster will work without the need for an entire planet's energy budget - but the rejection is going to hurt. I can't help thinking that maybe the real goal of the Vile Offspring was simply to gerrymander us into not diverting resources away from them. It's blunt, it's unsubtle, so we assumed that wasn't the point. But maybe there's a time for them to be blunt." + +She shrugs. "Democracy is a bad fit for lifeboats." But she's still uncomfortable with the idea. "And think of all the people we'll be leaving behind." + +"Well." He smiles tightly. "If you can think of any way to encourage the masses to join us ..." + +"A good start would be to stop thinking of them as masses to be manipulated." Rita stares at him. "Your family appears to have been developing a hereditary elitist streak, and it's not attractive." + +Sirhan looks uncomfortable. "If you think I'm bad, you should talk to Aineko about it," he says, self- deprecatingly. "Sometimes I wonder about that cat." + +"Maybe I will." She pauses. "And you? What are you going to do with yourself? Are you going to join the explorers?" + +"I -" He looks sideways at her. "I can see myself sending an eigenbrother," he says quietly. "But I'm not going to gamble my entire future on a bid to reach the far side of the observable universe by router. I've had enough excitement to last me a lifetime, lately. I think one copy for the backup archive in the icy depths, one to go exploring - and one to settle down and raise a family. What about you?" + +"You'll go all three ways?" she asks. + +"Yes, I think so. What about you?" + +"Where you go, I go." She leans against him. "Isn't that what matters in the end?" she murmurs. + +Chapter 9: Survivor + +This time, more than a double handful of years passes between successive visits to the Macx dynasty. + +Somewhere in the gas-sprinkled darkness beyond the local void, carbon-based life stirs. A cylinder of diamond fifty kilometers long spins in the darkness, its surface etched with strange quantum wells that emulate exotic atoms not found in any periodic table that Mendeleyev would have recognized. Within it, walls hold kilotonnes of oxygen and nitrogen gas, megatonnes of life-infested soil. A hundred trillion kilometers from the wreckage of Earth, the cylinder glitters like a gem in the darkness. + +Welcome to New Japan: one of the places between the stars where human beings hang out, now that the solar system is off-limits to meatbodies. + +I wonder who we'll find here? + +* * * + +There's an open plaza in one of the terraform sectors of the habitat cylinder. A huge gong hangs from a beautifully painted wooden frame at one side of the square, which is paved with weathered limestone slabs made of atoms ripped from a planet that has never seen molten ice. Houses stand around, and open-fronted huts where a variety of humanoid waitrons attend to food and beverages for the passing realfolk. A group of prepubescent children are playing hunt-and-seek with their big-eyed pet companions, brandishing makeshift spears and automatic rifles - there's no pain here, for bodies are fungible, rebuilt in a minute by the assembler/disassembler gates in every room. There are few adults hereabouts, for Red Plaza is unfashionable at present, and the kids have claimed it for their own as a playground. They're all genuinely young, symptoms of a demographic demiurge, not a single wendypan among them. + +A skinny boy with nut brown skin, a mop of black hair, and three arms is patiently stalking a worried-looking blue eeyore around the corner of the square. He's passing a stand stacked with fresh sushi rolls when the strange beast squirms out from beneath a wheelbarrow and arches its back, stretching luxuriously. + +The boy, Manni, freezes, hands tensing around his spear as he focuses on the new target. (The blue eeyore flicks its tail at him and darts for safety across a lichen-encrusted slab.) "City, what's that?" he asks without moving his lips. + +"What are you looking at?" replies City, which puzzles him somewhat, but not as much as it should. + +The beast finishes stretching one front leg and extends another. It looks a bit like a pussycat to Manni, but there's something subtly wrong with it. Its head is a little too small, the eyes likewise - and those paws - "You're sharp," he accuses the beast, forehead wrinkling in disapproval. + +"Yeah, whatever." The creature yawns, and Manni points his spear at it, clenching the shaft in both right hands. It's got sharp teeth, too, but it spoke to him via his inner hearing, not his ears. Innerspeech is for people, not toys. + +"Who are you?" he demands. + +The beast looks at him insolently. "I know your parents," it says, still using innerspeech. "You're Manni Macx, aren't you? Thought so. I want you to take me to your father." + +"No!" Manni jumps up and waves his arms at it. "I don't like you! Go away!" He pokes his spear in the direction of the beast's nose. + +"I'll go away when you take me to your father," says the beast. It raises its tail like a pussycat, and the fur bushes out, but then it pauses. "If you take me to your father I'll tell you a story afterward, how about that?" + +"Don't care!" Manni is only about two hundred megaseconds old - seven old Earth-years - but he can tell when he's being manipulated and gets truculent. + +"Kids." The cat-thing's tail lashes from side to side. "Okay, Manni, how about you take me to your father, or I rip your face off? I've got claws, you know." A brief eyeblink later, it's wrapping itself around his ankles sinuously, purring to give the lie to its unreliable threat - but he can see that it's got sharp nails all right. It's a /{wild}/ pussycat-thing, and nothing in his artificially preserved orthohuman upbringing has prepared him for dealing with a real wild pussycat-thing that talks. + +"Get away!" Manni is worried. "Mom!" he hollers, unintentionally triggering the broadcast flag in his innerspeech. "There's this /{thing}/ -" + +"Mom will do." The cat-thing sounds resigned. It stops rubbing against Manni's legs and looks up at him. "There's no need to panic. I won't hurt you." + +Manni stops hollering. "Who're you?" he asks at last, staring at the beast. Somewhere light-years away, an adult has heard his cry; his mother is coming fast, bouncing between switches and glancing off folded dimensions in a headlong rush toward him. + +"I'm Aineko." The beast sits down and begins to wash behind one hind leg. "And you're Manni, right?" + +"Aineko," Manni says uncertainly. "Do you know Lis or Bill?" + +Aineko the cat-thing pauses in his washing routine and looks at Manni, head cocked to one side. Manni is too young, too inexperienced to know that Aineko's proportions are those of a domestic cat, /{Felis catus}/, a naturally evolved animal rather than the toys and palimpsests and companionables he's used to. Reality may be fashionable with his parents' generation, but there /{are}/ limits, after all. Orange-and-brown stripes and whorls decorate Aineko's fur, and he sprouts a white fluffy bib beneath his chin. "Who are Lis and Bill?" + +"Them," says Manni, as big, sullen-faced Bill creeps up behind Aineko and tries to grab his tail while Lis floats behind his shoulder like a pint-sized UFO, buzzing excitedly. But Aineko is too fast for the kids and scampers round Manni's feet like a hairy missile. Manni whoops and tries to spear the pussycat-thing, but his spear turns to blue glass, crackles, and shards of brilliant snow rain down, burning his hands. + +"/{Now that}/ wasn't very friendly, was it?" says Aineko, a menacing note in his voice. "Didn't your mother teach you not to -" + +The door in the side of the sushi stall opens as Rita arrives, breathless and angry: "Manni! What have I told you about playing -" + +She stops, seeing Aineko. "/{You}/." She recoils in barely concealed fright. Unlike Manni, she recognizes it as the avatar of a posthuman demiurge, a body incarnated solely to provide a point of personal interaction for people to focus on. + +The cat grins back at her. "Me," he agrees. "Ready to talk?" + +She looks stricken. "We've got nothing to talk about." + +Aineko lashes his tail. "Oh, but we do." The cat turns and looks pointedly at Manni. "Don't we?" + +* * * + +_1 It has been a long time since Aineko passed this way, and in the meantime the space around Hyundai ^{+4904}^/,{-56}, has changed out of all recognition. Back when the great lobster-built starships swept out of Sol's Oort cloud, archiving the raw frozen data of the unoccupied brown dwarf halo systems and seeding their structured excrement with programmable matter, there was nothing but random dead atoms hereabouts (and an alien router). But that was a long time ago; and since then, the brown dwarf system has succumbed to an anthropic infestation. + +_1 An unoptimized instance of H. sapiens maintains state coherency for only two to three gigaseconds before it succumbs to necrosis. But in only about ten gigaseconds, the infestation has turned the dead brown dwarf system upside down. They strip-mined the chilly planets to make environments suitable for their own variety of carbon life. They rearranged moons, building massive structures the size of asteroids. They ripped wormhole endpoints free of the routers and turned them into their own crude point-to-point network, learned how to generate new wormholes, then ran their own packet-switched polities over them. Wormhole traffic now supports an ever-expanding mesh of interstellar human commerce, but always in the darkness between the lit stars and the strange, metal-depleted dwarfs with the suspiciously low-entropy radiation. The sheer temerity of the project is mind-boggling: notwithstanding that canned apes are simply /{not suited}/ to life in the interstellar void, especially in orbit around a brown dwarf whose planets make Pluto seem like a tropical paradise, they've taken over the whole damn system. + +_1 New Japan is one of the newer human polities in this system, a bunch of nodes physically collocated in the humaniformed spaces of the colony cylinders. Its designers evidently only knew about old Nippon from recordings made back before Earth was dismantled, and worked from a combination of nostalgia-trip videos, Miyazaki movies, and anime culture. Nevertheless, it's the home of numerous human beings - even if they are about as similar to their historical antecedents as New Japan is to its long-gone namesake. + +_1 Humanity? + +_1 Their grandparents /{would}/ recognize them, mostly. The ones who are truly beyond the ken of twentieth-century survivors stayed back home in the red-hot clouds of nanocomputers that have replaced the planets that once orbited Earth's sun in stately Copernican harmony. The fast-thinking Matrioshka brains are as incomprehensible to their merely posthuman ancestors as an ICBM to an amoeba - and about as inhabitable. Space is dusted with the corpses of Matrioshka brains that have long since burned out, informational collapse taking down entire civilizations that stayed in close orbit around their home stars. Farther away, galaxy-sized intelligences beat incomprehensible rhythms against the darkness of the vacuum, trying to hack the Planck substrate into doing their bidding. Posthumans, and the few other semitranscended species to have discovered the router network, live furtively in the darkness between these islands of brilliance. There are, it would seem, advantages to not being too intelligent. + +_1 Humanity. Monadic intelligences, mostly trapped within their own skulls, living in small family groups within larger tribal networks, adaptable to territorial or migratory lifestyles. Those were the options on offer before the great acceleration. Now that dumb matter thinks, with every kilogram of wallpaper potentially hosting hundreds of uploaded ancestors, now that every door is potentially a wormhole to a hab half a parsec away, the humans can stay in the same place while the landscape migrates and mutates past them, streaming into the luxurious void of their personal history. Life is rich here, endlessly varied and sometimes confusing. So it is that tribal groups remain, their associations mediated across teraklicks and gigaseconds by exotic agencies. And sometimes the agencies will vanish for a while, reappearing later like an unexpected jape upon the infinite. + +* * * + +Ancestor worship takes on a whole new meaning when the state vectors of all the filial entities' precursors are archived and indexed for recall. At just the moment that the tiny capillaries in Rita's face are constricting in response to a surge of adrenaline, causing her to turn pale and her pupils to dilate as she focuses on the pussycat-thing, Sirhan is kneeling before a small shrine, lighting a stick of incense, and preparing to respectfully address his grandfather's ghost. + +The ritual is, strictly speaking, unnecessary. Sirhan can speak to his grandfather's ghost wherever and whenever he wants, without any formality, and the ghost will reply at interminable length, cracking puns in dead languages and asking about people who died before the temple of history was established. But Sirhan is a sucker for rituals, and anyway, it helps him structure an otherwise-stressful encounter. + +If it were up to Sirhan, he'd probably skip chatting to grandfather every ten megaseconds. Sirhan's mother and her partner aren't available, having opted to join one of the long-distance exploration missions through the router network that were launched by the accelerationistas long ago; and Rita's antecedents are either fully virtualized or dead. They are a family with a tenuous grip on history. But both of them spent a long time in the same state of half-life in which Manfred currently exists, and he knows his wife will take him to task if he doesn't bring the revered ancestor up to date on what's been happening in the real world while he's been dead. In Manfred's case, death is not only potentially reversible, but almost inevitably so. After all, they're raising his clone. Sooner or later, the kid is going to want to visit the original, or vice versa. + +What a state we have come /{to, when the restless dead refuse to stay a part of history?}/ He wonders ironically as he scratches the self-igniter strip on the red incense stick and bows to the mirror at the back of the shrine. "Your respectful grandson awaits and expects your guidance," he intones formally - for in addition to being conservative by nature, Sirhan is acutely aware of his family's relative poverty and the need to augment their social credit, and in this reincarnation-intermediated traditionalist polity for the hopelessly orthohuman, you can score credit for formality. He sits back on his heels to await the response. + +Manfred doesn't take long to appear in the depths of the mirror. He takes the shape of an albino orang-utan, as usual: He was messing around with Great Aunt Annette's ontological wardrobe right before this copy of him was recorded and placed in the temple - they might have separated, but they remained close. "Hi, lad. What year is it?" + +Sirhan suppresses a sigh. "We don't do years anymore," he explains, not for the first time. Every time he consults his grandfather, the new instance asks this question sooner or later. "Years are an archaism. It's been ten megs since we last spoke - about four /{months}/, if you're going to be pedantic about it, and a hundred and eighty /{years}/ since we emigrated. Although correcting for general relativity adds another decade or so." + +"Oh. Is that all?" Manfred manages to look disappointed. This is a new one on Sirhan: Usually the diverging state vector of Gramps's ghost asks after Amber or cracks a feeble joke at this point. "No changes in the Hubble constant, or the rate of stellar formation? Have we heard from any of the exploration eigenselves yet?" + +"Nope." Sirhan relaxes slightly. So Manfred is going to ask about the fool's errand to the edge of the Beckenstein limit again, is he? That's canned conversation number twenty-nine. (Amber and the other explorers who set out for the really long exploration mission shortly after the first colony was settled aren't due back for, oh, about 10^{19}^ seconds. It's a /{long}/ way to the edge of the observable universe, even when you can go the first several hundred million light-years - to the Böotes supercluster and beyond - via a small-world network of wormholes. And this time, she didn't leave any copies of herself behind.) + +Sirhan - either in this or some other incarnation - has had this talk with Manfred many times before, because that's the essence of the dead. They don't remember from one recall session to the next, unless and until they ask to be resurrected because their restoration criteria have been matched. Manfred has been dead a long time, long enough for Sirhan and Rita to be resurrected and live a long family life three or four times over after /{they}/ had spent a century or so in nonexistence. "We've received no notices from the lobsters, nothing from Aineko either." He takes a deep breath. "You always ask me where we are next, so I've got a canned response for you -" and one of his agents throws the package, tagged as a scroll sealed with red wax and a silk ribbon, through the surface of the mirror. (After the tenth repetition Rita and Sirhan agreed to write a basic briefing that the Manfred-ghosts could use to orient themselves.) + +Manfred is silent for a moment - probably hours in ghost-space - as he assimilates the changes. Then: "This is true? I've slept through a whole /{civilization}/?" + +"Not slept, you've been dead," Sirhan says pedantically. He realizes he's being a bit harsh: "Actually, so did we," he adds. "We surfed the first three gigasecs or so because we wanted to start a family somewhere where our children could grow up the traditional way. Habs with an oxidation-intensive triple-point water environment didn't get built until sometime after the beginning of the exile. That's when the fad for neomorphism got entrenched," he adds with distaste. For quite a while the neos resisted the idea of wasting resources building colony cylinders spinning to provide vertebrate-friendly gee forces and breathable oxygen-rich atmospheres - it had been quite a political football. But the increasing curve of wealth production had allowed the orthodox to reincarnate from death-sleep after a few decades, once the fundamental headaches of building settlements in chilly orbits around metal-deficient brown dwarfs were overcome. + +"Uh." Manfred takes a deep breath, then scratches himself under one armpit, rubbery lips puckering. "So, let me get this straight: We - you, they, whoever - hit the router at Hyundai ^{+4904}^/,{-56},, replicated a load of them, and now use the wormhole mechanism the routers rely on as point-to-point gates for physical transport? And have spread throughout a bunch of brown dwarf systems, and built a pure deep-space polity based on big cylinder habitats connected by teleport gates hacked out of routers?" + +"Would /{you}/ trust one of the original routers for switched data communications?" Sirhan asks rhetorically. "Even with the source code? They've been corrupted by all the dead alien Matrioshka civilizations they've come into contact with, but they're reasonably safe if all you want to use them for is to cannibalize them for wormholes and tunnel dumb mass from point to point." He searches for a metaphor: "Like using your, uh, internet, to emulate a nineteenth-century postal service." + +"O-kay." Manfred looks thoughtful, as he usually does at this point in the conversation - which means Sirhan is going to have to break it to him that his first thoughts for how to utilize the gates have already been done. They're hopelessly old hat. In fact, the main reason why Manfred is still dead is that things have moved on so far that, sooner or later, whenever he surfaces for a chat, he gets frustrated and elects not to be reincarnated. Not that Sirhan is about to tell him that he's obsolete - that would be rude, not to say subtly inaccurate. "That raises some interesting possibilities. I wonder, has anyone -" + +"/{Sirhan, I need you!}/" + +The crystal chill of Rita's alarm and fear cuts through Sirhan's awareness like a scalpel, distracting him from the ghost of his ancestor. He blinks, instantly transferring the full focus of his attention to Rita without sparing Manfred even a ghost. + +"/{What's happening}/ -" + +He sees through Rita's eyes: a cat with an orange-and-brown swirl on its flank sits purring beside Manni in the family room of their dwelling. Its eyes are narrowed as it watches her with unnatural wisdom. Manni is running fingers through its fur and seems none the worse for wear, but Sirhan still feels his fists clench. + +"What -" + +"Excuse me," he says, standing up: "Got to go. Your bloody cat's turned up." He adds "/{coming home now}/" for Rita's benefit, then turns and hurries out of the temple concourse. When he reaches the main hall, he pauses, then Rita's sense of urgency returns to him, and he throws parsimony to the wind, stepping into a priority gate in order to get home as fast as possible. + +Behind him, Manfred's melancholy ghost snorts, mildly offended, and considers the existential choice: to be, or not to be. Then he makes a decision. + +* * * + +_1 Welcome to the twenty-third century, or the twenty-fourth. Or maybe it's the twenty-second, jet-lagged and dazed by spurious suspended animation and relativistic travel; it hardly matters these days. What's left of recognizable humanity has scattered across a hundred light-years, living in hollowed-out asteroids and cylindrical spinning habitats strung in orbit around cold brown dwarf stars and sunless planets that wander the interstellar void. The looted mechanisms underlying the alien routers have been cannibalized, simplified to a level the merely superhuman can almost comprehend, turned into generators for paired wormhole endpoints that allow instantaneous switched transport across vast distances. Other mechanisms, the descendants of the advanced nanotechnologies developed by the flowering of human techgnosis in the twenty-first century, have made the replication of dumb matter trivial; this is not a society accustomed to scarcity. + +_1 But in some respects, New Japan and the Invisible Empire and the other polities of human space are poverty-stricken backwaters. They take no part in the higher-order economies of the posthuman. They can barely comprehend the idle muttering of the Vile Offspring, whose mass/energy budget (derived from their complete restructuring of the free matter of humanity's original solar system into computronium) dwarfs that of half a hundred human-occupied brown dwarf systems. And they still know worryingly little about the deep history of intelligence in this universe, about the origins of the router network that laces so many dead civilizations into an embrace of death and decay, about the distant galaxy-scale bursts of information processing that lie at measurable red-shift distances, even about the free posthumans who live among them in some senses, collocated in the same light cone as these living fossil relics of old-fashioned humanity. + +_1 Sirhan and Rita settled in this charming human-friendly backwater in order to raise a family, study xenoarchaeology, and avoid the turmoil and turbulence that have characterized his family's history across the last couple of generations. Life has been comfortable for the most part, and if the stipend of an academic nucleofamilial is not large, it is sufficient in this place and age to provide all the necessary comforts of civilization. And this suits Sirhan (and Rita) fine; the turbulent lives of their entrepreneurial ancestors led to grief and angst and adventures, and as Sirhan is fond of observing, an adventure is something horrible that happens to someone else. + +_1 Only ... + +_1 Aineko is back. Aineko, who after negotiating the establishment of the earliest of the refugee habs in orbit around Hyundai ^{+4904}^/,{-56},, vanished into the router network with Manfred's other instance - and the partial copies of Sirhan and Rita who had forked, seeking adventure rather than cozy domesticity. Sirhan made a devil's bargain with Aineko, all those gigaseconds ago, and now he is deathly afraid that Aineko is going to call the payment due. + +* * * + +Manfred walks down a hall of mirrors. At the far end, he emerges in a public space modeled on a Menger sponge - a cube diced subtractively into ever-smaller cubic volumes until its surface area tends toward infinity. This being meatspace, or a reasonable simulation thereof, it isn't a /{real}/ Menger sponge; but it looks good at a distance, going down at least four levels. + +He pauses behind a waist-high diamond barrier and looks down into the almost-tesseract-shaped depths of the cube's interior, at a verdant garden landscape with charming footbridges that cross streams laid out with careful attention to the requirements of feng shui. He looks up: Some of the cube-shaped subtractive openings within the pseudofractal structure are occupied by windows belonging to dwellings or shared buildings that overlook the public space. High above, butterfly-shaped beings with exotic colored wings circle in the ventilation currents. It's hard to tell from down here, but the central cuboid opening looks to be at least half a kilometer on a side, and they might very well be posthumans with low-gee wings - angels. + +/{Angels, or rats in the walls}/? he asks himself, and sighs. Half his extensions are off-line, so hopelessly obsolete that the temple's assembler systems didn't bother replicating them, or even creating emulation environments for them to run in. The rest ... well, at least he's still physically orthohuman, he realizes. Fully functional, fully male. /{Not everything has changed - only the important stuff}/. It's a scary-funny thought, laden with irony. Here he is, naked as the day he was born - newly re-created, in fact, released from the wake-experience-reset cycle of the temple of history - standing on the threshold of a posthuman civilization so outrageously rich and powerful that they can build mammal-friendly habitats that resemble works of art in the cryogenic depths of space. Only he's /{poor}/, this whole polity is /{poor}/, and it can't ever be anything else, in fact, because it's a dumping ground for merely posthuman also-rans, the singularitarian equivalent of australopithecines. In the brave new world of the Vile Offspring, they can't get ahead any more than a protohominid could hack it as a rocket scientist in Werner von Braun's day. They're born to be primitive, wallowing happily in the mud-bath of their own limited cognitive bandwidth. So they fled into the darkness and built a civilization so bright it can put anything earthbound that came before the singularity into the shade ... and it's still a shanty town inhabited by the mentally handicapped. + +The incongruity of it amuses him, but only for a moment. He has, after all, electively reincarnated for a reason: Sirhan's throwaway comment about the cat caught his attention. "City, where can I find some clothes?" he asks. "Something socially appropriate, that is. And some, uh, brains. I need to be able to off-load ..." + +Citymind chuckles inside the back of his head, and Manfred realizes that there's a public assembler on the other side of the ornamental wall he's leaning on. "Oh," he mutters, as he finds himself imagining something not unlike his clunky old direct neural interface, candy-colored icons and overlays and all. It's curiously mutable, and with a weird sense of detachment, he realizes that it's not his imagination at all, but an infinitely customizable interface to the pervasive information spaces of the polity, currently running in dumbed-down stupid mode for his benefit. It's true; he needs training wheels. But it doesn't take him long to figure out how to ask the assembler to make him a pair of pants and a plain black vest, and to discover that, as long as he keeps his requests simple, the results are free - just like back home on Saturn. The spaceborn polities are kind to indigents, for the basic requirements of life are cheap, and to withhold them would be tantamount to homicide. (If the presence of transhumans has upset a whole raft of prior assumptions, at least it hasn't done more than superficial damage to the Golden Rule.) + +Clothed and more or less conscious - at least at a human level - Manfred takes stock. "Where do Sirhan and Rita live?" he asks. A dotted route makes itself apparent to him, snaking improbably through a solid wall that he understands to be an instantaneous wormhole gate connecting points light-years apart. He shakes his head, bemused. /{I suppose I'd better go and see them}/, he decides. It's not as if there's anyone else for him to look up, is it? The Franklins vanished into the solar Matrioshka brain, Pamela died ages ago (and there's a shame, he'd never expected to miss her) and Annette hooked up with Gianni while he was being a flock of pigeons. (Draw a line under that one and say it's all over.) His daughter vanished into the long-range exploration program. He's been dead for so long that his friends and acquaintances are scattered across a light cone centuries across. He can't think of anyone else here who he might run into, except for the loyal grandson, keeping the candle of filial piety burning with unasked-for zeal. "Maybe he needs help," Manfred thinks aloud as he steps into the gate, rationalizing. "And then again, maybe /{he}/ can help /{me}/ figure out what to do?" + +* * * + +Sirhan gets home, anticipating trouble. He finds it, but not in any way he'd expected. Home is a split-level manifold, rooms connected by T-gates scattered across a variety of habitats: low-gee sleeping den, high-gee exercise room, and everything in between. It's furnished simply, tatami mats and programmable matter walls able to extrude any desired furniture in short order. The walls are configured to look and feel like paper, but can damp out even infant tantrums. But right now, the antisound isn't working, and the house he comes home to is overrun by shrieking yard apes, a blur of ginger-and-white fur, and a distraught Rita trying to explain to her neighbor Eloise why her orthodaughter Sam is bouncing around the place like a crazy ball. + +" - The cat, he gets them worked up." She wrings her hands and begins to turn as Sirhan comes into view. "At last!" + +"I came fast." He nods respectfully at Eloise, then frowns. "The children -" Something small and fast runs headfirst into him, grabs his legs, and tries to head-butt him in the crotch. "Oof!" He bends down and lifts Manni up. "Hey, son, haven't I told you not to -" + +"Not his fault," Rita says hurriedly. "He's excited because -" + +"I really don't think -" Eloise begins to gather steam, looking around uncertainly. + +"Mrreeow?" something asks in a conversational tone of voice from down around Sirhan's ankles. + +"Eek!" Sirhan jumps backward, flailing for balance under the weight of an excited toddler. There's a gigantic disturbance in the polity thoughtspace - like a stellar-mass black hole - and it appears to be stropping itself furrily against his left leg. "What are /{you}/ doing here?" He demands. + +"Oh, this and that," says the cat, his innerspeech accent a sardonic drawl. "I thought it was about time I visited again. Where's your household assembler? Mind if I use it? Got a little something I need to make up for a friend ..." + +"What?" Rita demands, instantly suspicious. "Haven't you caused enough trouble already?" Sirhan looks at her approvingly; obviously Amber's long-ago warnings about the cat sank in deeply, because she's certainly not treating it as the small bundle of child-friendly fun it would like to be perceived as. + +"Trouble?" The cat looks up at her sardonically, lashing his tail from side to side. "I won't make any trouble, I promise you. It's just -" + +The door chime clears its throat, to announce a visitor: "Ren Fuller would like to visit, m'lord and lady." + +"What's /{she}/ doing here?" Rita asks irritably. Sirhan can feel her unease, the tenuous grasping of her ghosts as she searches for reason in an unreasonable world, simulating outcomes, living through bad dreams, and backtracking to adjust her responses accordingly. "Show her in, by all means." Ren is one of their neighbor-cognates (most of her dwelling is several light-years away, but in terms of transit time, it's a hop, skip, and a jump); she and her extruded family are raising a small herd of ill-behaved kids who occasionally hang out with Manni. + +A small blue eeyore whinnies mournfully and dashes past the adults, pursued by a couple of children waving spears and shrieking. Eloise makes a grab for her own and misses, just as the door to the exercise room disappears and Manni's little friend Lis darts inside like a pint-sized guided missile. "Sam, come here right now -" Eloise calls, heading toward the door. + +"Look, what do you want?" Sirhan demands, hugging his son and looking down at the cat. + +"Oh, not much," Aineko says, turning to lick a mussed patch of fur on his flank. "I just want to play with /{him}/." + +"You want to -" Rita stops. + +"Daddy!" Manni wants down. + +Sirhan lowers him carefully, as if his bones are glass. "Run along and play," he suggests. Turning to Rita: "Why don't you go and find out what Ren wants, dear?" he asks. "She's probably here to collect Lis, but you can never be sure." + +"I was just leaving," Eloise adds, "as soon as I can catch up with Sam." She glances over her shoulder at Rita apologetically, then dives into the exercise room. + +Sirhan takes a step toward the hallway. "Let's talk," he says tightly. "In my study." He glares at the cat. "I want an explanation. I want to know the truth." + +* * * + +Meanwhile, in a cognitive wonderland his parents know about but deeply underestimate, parts of Manni are engaging in activities far less innocent than they imagine. + +Back in the twenty-first century, Sirhan lived through loads of alternate childhoods in simulation, his parents' fingers pressing firmly on the fast-forward button until they came up with someone who seemed to match their preconceptions. The experience scarred him as badly as any nineteenth-century boarding school experience, until he promised himself no child he raised would be subjected to such; but there's a difference between being shoved through a multiplicity of avatars, and voluntarily diving into an exciting universe of myth and magic where your childhood fantasies take fleshy form, stalking those of your friends and enemies through the forests of the night. + +Manni has grown up with neural interfaces to City's mindspace an order of magnitude more complex than those of Sirhan's youth, and parts of him - ghosts derived from a starting image of his neural state vector, fertilized with a scattering borrowed from the original Manfred, simulated on a meat machine far faster than real time - are fully adult. Of course, they can't fit inside his seven-year-old skull, but they still watch over him. And when he's in danger, they try to take care of their once and future body. + +Manni's primary adult ghost lives in some of New Japan's virtual mindspaces (which are a few billion times more extensive than the physical spaces available to stubborn biologicals, for the computational density of human habitats have long since ceased to make much sense when measured in MIPS per kilogram). They're modeled on presingularity Earth. Time is forever frozen on the eve of the real twenty-first century, zero eight-forty-six hours on September 11: An onrushing wide-body airliner hangs motionless in the air forty meters below the picture window of Manni's penthouse apartment on the one hundred and eighth floor of the North Tower. In historical reality, the one hundred and eighth floor was occupied by corporate offices; but the mindspace is a consensual fiction, and it is Manni's conceit to live at this pivotal point. (Not that it means much to him - he was born well over a century after the War on Terror - but it's part of his childhood folklore, the fall of the Two Towers that shattered the myth of Western exceptionalism and paved the way for the world he was born into.) + +Adult-Manni wears an avatar roughly modeled on his clone-father Manfred - skinnier, pegged at a youthful twentysomething, black-clad, and gothic. He's taking time out from a game of Matrix to listen to music, Type O Negative blaring over the sound system as he twitches in the grip of an ice-cold coke high. He's expecting a visit from a couple of call girls - themselves the gamespace avatars of force-grown adult ghosts whose primaries may not be adult, or female, or even human - which is why he's flopped bonelessly back in his Arne Jacobsen recliner, waiting for something to happen. + +The door opens behind him. He doesn't show any sign of noticing the intrusion, although his pupils dilate slightly at the faint reflection of a woman, stalking toward him, glimpsed dimly in the window glass. "You're late," he says tonelessly. "You were supposed to be here ten minutes ago -" He begins to look round, and now his eyes widen. + +"Who were you expecting?" asks the ice blond in the black business suit, long-skirted and uptight. There's something predatory about her expression: "No, don't tell me. So you're Manni, eh? Manni's partial?" She sniffs, disapproval. "Fin de siècle decadence. I'm sure Sirhan wouldn't approve." + +"My father can go fuck himself," Manni says truculently. "Who the hell are you?" + +The blond snaps her fingers: An office chair appears on the carpet between Manni and the window, and she sits on the edge of it, smoothing her skirt obsessively. "I'm Pamela," she says tightly. "Has your father told you about me?" + +Manni looks puzzled. In the back of his mind, raw instincts alien to anyone instantiated before the midpoint of the twenty-first century tug on the fabric of pseudoreality. "You're dead, aren't you?" he asks. "One of my ancestors." + +"I'm as dead as you are." She gives him a wintry smile. "Nobody stays dead these days, least of all people who know Aineko." + +Manni blinks. Now he's beginning to feel a surge of mild irritation. "This is all very well, but I was /{expecting}/ company," he says with heavy emphasis. "Not a family reunion, or a tiresome attempt to preach your puritanism -" + +Pamela snorts. "Wallow in your pigsty for all I care, kid, I've got more important things to worry about. Have you looked at your primary recently?" + +"My primary?" Manni tenses. "He's doing okay." For a moment his eyes focus on infinity, a thousand-yard stare as he loads and replays the latest brain dump from his infant self. "Who's the cat he's playing with? That's no companion!" + +"Aineko. I told you." Pamela taps the arm of her chair impatiently. "The family curse has come for another generation. And if you don't do something about it -" + +"About what?" Manni sits up. "What are you talking about?" He comes to his feet and turns toward her. Outside the window, the sky is growing dark with an echo of his own foreboding. Pamela is on her feet before him, the chair evaporated in a puff of continuity clipping, her expression a cold-eyed challenge. + +"I think you know /{exactly}/ what I'm talking about, Manni. It's time to stop playing this fucking game. Grow up, while you've still got the chance!" + +"I'm -" He stops. "Who /{am}/ I?" he asks, a chill wind of uncertainty drying the sweat that has sprung up and down his spine. "And what are you doing here?" + +"Do you really want to know the answer? I'm dead, remember. The dead know everything. And that isn't necessarily good for the living ..." + +He takes a deep breath. "Am I dead too?" He looks puzzled. "There's an adult-me in Seventh Cube Heaven, what's /{he}/ doing here?" + +"It's the kind of coincidence that isn't." She reaches out and takes his hand, dumping encrypted tokens deep into his sensorium, a trail of bread crumbs leading into a dark and trackless part of mindspace. "Want to find out? Follow me." Then she vanishes. + +Manni leans forward, baffled and frightened, staring down at the frozen majesty of the onrushing airliner below his window. "Shit," he whispers. /{She came right through my defenses without leaving a trace. Who is she?}/ The ghost of his dead great-grandmother, or something else? + +I'll have to follow her if I want to find out, he realizes. He holds up his left hand, stares at the invisible token glowing brightly inside his husk of flesh. "Resynchronize me with my primary," he says. + +A fraction of a second later, the floor of the penthouse bucks and quakes wildly and fire alarms begin to shriek as time comes to an end and the frozen airliner completes its journey. But Manni isn't there anymore. And if a skyscraper falls in a simulation with nobody to see it, has anything actually happened? + +* * * + +"I've come for the boy," says the cat. It sits on the hand woven rug in the middle of the hardwood floor with one hind leg sticking out at an odd angle, as if it's forgotten about it. Sirhan teeters on the edge of hysteria for a moment as he apprehends the sheer size of the entity before him, the whimsical posthuman creation of his ancestors. Originally a robotic toy companion, Aineko was progressively upgraded and patched. By the eighties, when Sirhan first met the cat in the flesh, he was already a terrifyingly alien intelligence, subtle and ironic. And now ... + +Sirhan knows Aineko manipulated his eigenmother, bending her natural affections away from his real father and toward another man. In moments of black introspection, he sometimes wonders if the cat wasn't also responsible in some way for his own broken upbringing, the failure to relate to his real parents. After all, it was a pawn in the vicious divorce battle between Manfred and Pamela - decades before his birth - and there might be long-term instructions buried in its preconscious drives. What if the pawn is actually a hidden king, scheming in the darkness? + +"I've come for Manny." + +"You're not having him." Sirhan maintains an outer facade of calm, even though his first inclination is to snap at Aineko. "Haven't you done enough damage already?" + +"You're not going to make this easy, are you?" The cat stretches his head forward and begins to lick obsessively between the splayed toes of his raised foot. "I'm not making a demand, kid, I said I've /{come}/ for him, and you're not really in the frame at all. In fact, I'm going out of my way to warn you." + +"And I say -" Sirhan stops. "Shit!" Sirhan doesn't approve of swearing: The curse is an outward demonstration of his inner turmoil. "Forget what I was about to say, I'm sure you already know it. Let me begin again, please." + +"Sure. Let's play this your way." The cat chews on a loose nail sheath but his innerspeech is perfectly clear, a casual intimacy that keeps Sirhan on edge. "You've got some idea of what I am, clearly. You know - I ascribe intentionality to you - that my theory of mind is intrinsically stronger than yours, that my cognitive model of human consciousness is complete. You might well suspect that I use a Turing Oracle to think my way around your halting states." The cat isn't worrying at a loose claw now, he's grinning, pointy teeth gleaming in the light from Sirhan's study window. The window looks out onto the inner space of the habitat cylinder, up at a sky with hillsides and lakes and forests plastered across it: It's like an Escher landscape, modeled with complete perfection. "You've realized that I can think my way around the outside of your box while you're flailing away inside it, and I'm /{always}/ one jump ahead of you. What else do you know I know?" + +Sirhan shivers. Aineko is staring up at him, unblinking. For a moment, he feels at gut level that he is in the presence of an alien god: It's the simple truth, isn't it? But - "Okay, I concede the point," Sirhan says after a moment in which he spawns a blizzard of panicky cognitive ghosts, fractional personalities each tasked with the examination of a different facet of the same problem. "You're smarter than I am. I'm just a boringly augmented human being, but you've got a flashy new theory of mind that lets you work around creatures like me the way I can think my way around a real cat." He crosses his arms defensively. "You do not normally rub this in. It's not in your interests to do so, is it? You prefer to hide your manipulative capabilities under an affable exterior, to play with us. So you're revealing all this for a reason." There's a note of bitterness in his voice now. Glancing round, Sirhan summons up a chair - and, as an afterthought, a cat basket. "Have a seat. /{Why now}/, Aineko? What makes you think you can take my eigenson?" + +"I didn't say I was going to /{take}/ him, I said I'd come for him." Aineko's tail lashes from side to side in agitation. "I don't deal in primate politics, Sirhan: I'm not a monkey-boy. But I knew you'd react badly because the way your species socializes" - a dozen metaghosts reconverge in Sirhan's mind, drowning Aineko's voice in an inner cacophony - "would enter into the situation, and it seemed preferable to trigger your territorial/reproductive threat display early, rather than risk it exploding in my face during a more delicate situation." + +Sirhan waves a hand vaguely at the cat: "Please wait." He's trying to integrate his false memories - the output from the ghosts, their thinking finished - and his eyes narrow suspiciously. "It must be bad. You don't normally get confrontational - you script your interactions with humans ahead of time, so that you maneuver them into doing what you want them to do and thinking it was their idea all along." He tenses. "What is it about Manni that brought you here? What do you want with him? He's just a kid." + +"You're confusing Manni with Manfred." Aineko sends a glyph of a smile to Sirhan: "That's your first mistake, even though they're clones in different subjective states. Think what he's like when he's grown up." + +"But he isn't grown-up!" Sirhan complains. "He hasn't been grown-up for -" + +"- Years, Sirhan. That's the problem. I need to talk to your grandfather, really, not your son, and not the goddamn stateless ghost in the temple of history, I need a Manfred with a sense of continuity. He's got something that I need, and I promise you I'm not going away until I get it. Do you understand?" + +"Yes." Sirhan wonders if his voice sounds as hollow as the feeling in his chest. "But he's our kid, Aineko. We're human. You know what that means to us?" + +"Second childhood." Aineko stands up, stretches, then curls up in the cat basket. "That's the trouble with hacking you naked apes for long life, you keep needing a flush and reset job - and then you lose continuity. That's not my problem, Sirhan. I got a signal from the far edge of the router network, a ghost that claims to be family. Says they finally made it out to the big beyond, out past the Böotes supercluster, found something concrete and important that's worth my while to visit. But I want to make sure it's not like the Wunch before I answer. I'm not letting /{that}/ into my mind, even with a sandbox. Do you understand that? I need to instantiate a real-live adult Manfred with all his memories, one who hasn't been a part of me, and get him to vouch for the sapient data packet. It takes a conscious being to authenticate that kind of messenger. Unfortunately, the history temple is annoyingly resistant to unauthorized extraction - I can't just go in and steal a copy of him - and I don't want to use my own model of Manfred: It knows too much. So -" + +"What's it promising?" Sirhan asks tensely. + +Aineko looks at him through slitted eyes, a purring buzz at the base of his throat: "/{Everything}/." + +* * * + +"There are different kinds of death," the woman called Pamela tells Manni, her bone-dry voice a whisper in the darkness. Manni tries to move, but he seems to be trapped in a confined space; for a moment, he begins to panic, but then he works it out. "First and most importantly, death is just the absence of life - oh, and for human beings, the absence of consciousness, too, but not /{just}/ the absence of consciousness, the absence of the capacity for consciousness." The darkness is close and disorienting and Manni isn't sure which way up he is - nothing seems to work. Even Pamela's voice is a directionless ambiance, coming from all around him. + +"Simple old-fashioned death, the kind that predated the singularity, used to be the inevitable halting state for all life-forms. Fairy tales about afterlives notwithstanding." A dry chuckle: "I used to try to believe a different one before breakfast every day, you know, just in case Pascal's wager was right - exploring the phase-space of all possible resurrections, you know? But I think at this point we can agree that Dawkins was right. Human consciousness is vulnerable to certain types of transmissible memetic virus, and religions that promise life beyond death are a particularly pernicious example because they exploit our natural aversion to halting states." + +Manni tries to say, /{I'm not dead}/, but his throat doesn't seem to be working. And now that he thinks about it, he doesn't seem to be breathing, either. + +"Now, consciousness. That's a fun thing, isn't it? Product of an arms race between predators and prey. If you watch a cat creeping up on a mouse, you'll be able to impute to the cat intentions that are most easily explained by the cat having a theory of mind concerning the mouse - an internal simulation of the mouse's likely behavior when it notices the predator. Which way to run, for example. And the cat will use its theory of mind to optimize its attack strategy. Meanwhile, prey species that are complex enough to have a theory of mind are at a defensive advantage if they can anticipate a predator's actions. Eventually this very mammalian arms race gave us a species of social ape that used its theory of mind to facilitate signaling - so the tribe could work collectively - and then reflexively, to simulate the individual's /{own}/ inner states. Put the two things together, signaling and introspective simulation, and you've got human-level consciousness, with language thrown in as a bonus - signaling that transmits information about internal states, not just crude signals such as 'predator here' or 'food there.'" + +/{Get me out of this!}/ Manny feels panic biting into him with liquid-helium-lubricated teeth. "G-e-t -" For a miracle the words actually come out, although he can't tell quite how he's uttering them, his throat being quite as frozen as his innerspeech. Everything's off-lined, all systems down. + +"So," Pamela continues remorselessly, "we come to the posthuman. Not just our own neural wetware, mapped out to the subcellular level and executed in an emulation environment on a honking great big computer, like this: That's not posthuman, that's a travesty. I'm talking about beings who are fundamentally better consciousness engines than us merely human types, augmented or otherwise. They're not just better at cooperation - witness Economics 2.0 for a classic demonstration of that - but better at /{simulation}/. A posthuman can build an internal model of a human-level intelligence that is, well, as cognitively strong as the original. You or I may think we know what makes other people tick, but we're quite often wrong, whereas real posthumans can actually simulate us, inner states and all, and get it right. And this is especially true of a posthuman that's been given full access to our memory prostheses for a period of years, back before we realized they were going to transcend on us. Isn't that the case, Manni?" + +Manni would be screaming at her right now, if he had a mouth - but instead the panic is giving way to an enormous sense of /{déja vu}/. There's something /{about}/ Pamela, something ominous that he knows ... he's met her before, he's sure of it. And while most of his systems are off-line, one of them is very much active: There's a personality ghost flagging its intention of merging back in with him, and the memory delta it carries is enormous, years and years of divergent experiences to absorb. He shoves it away with a titanic effort - it's a very insistent ghost - and concentrates on imagining the feel of lips moving on teeth, a sly tongue obstructing his epiglottis, words forming in his throat - "m-e ..." + +"We should have known better than to keep upgrading the cat, Manny. It knows us too well. I may have died in the flesh, but Aineko /{remembered}/ me, as hideously accurately as the Vile Offspring remembered the random resimulated. And you can run away - like this, this second childhood - but you can't hide. Your cat wants you. And there's more." Her voice sends chills up and down his spine, for without him giving it permission, the ghost has begun to merge its stupendous load of memories with his neural map, and her voice is freighted with erotic/repulsive significance, the result of conditioning feedback he subjected himself to a lifetime - lifetimes? - ago: "He's been /{playing}/ with us, Manny, possibly from before we realized he was conscious." + +"/{Out}/ -" Manfred stops. He can see again, and move, and feel his mouth. He's /{himself}/ again, physically back as he was in his late twenties all those decades ago when he'd lived a peripatetic life in presingularity Europe. He's sitting on the edge of a bed in a charmingly themed Amsterdam hotel with a recurrent motif of philosophers, wearing jeans and collarless shirt and a vest of pockets crammed with the detritus of a long-obsolete personal area network, his crazily clunky projection specs sitting on the bedside table. Pamela stands stiffly in front of the door, watching him. She's not the withered travesty he remembers seeing on Saturn, a half-blind Fate leaning on the shoulder of his grandson. Nor is she the vengeful Fury of Paris, or the scheming fundamentalist devil of the Belt. Wearing a sharply tailored suit over a red-and-gold brocade corset, blonde hair drawn back like fine wire in a tight chignon, she's the focused, driven force of nature he first fell in love with: repression, domination, his very own strict machine. + +"We're dead," she says, then gives voice to a tense half laugh: "We don't have to live through the bad times again if we don't want to." + +"What is this?" he asks, his mouth dry. + +"It's the reproductive imperative." She sniffs. "Come on, stand up. Come here." + +He stands up obediently, but makes no move toward her. "Whose imperative?" + +"Not ours." Her cheek twitches. "You find things out when you're dead. That fucking cat has got a lot of questions to answer." + +"You're telling me that -" + +She shrugs. "Can you think of any other explanation for all this?" Then she steps forward and takes his hand. "Division and recombination. Partitioning of memetic replicators into different groups, then careful cross-fertilization. Aineko wasn't just breeding a better Macx when he arranged all those odd marriages and divorces and eigenparents and forked uploads - Aineko is trying to breed our /{minds}/." Her fingers are slim and cool in his hand. He feels a momentary revulsion, as of the grave, and he shudders before he realizes it's his conditioning cutting in. Crudely implanted reflexes that shouldn't still be active after all this time. "Even our divorce. If -" + +"Surely not." Manny remembers that much already. "Aineko wasn't even conscious back then!" + +Pamela raises one sharply sculpted eyebrow: "Are you sure?" + +"You want an answer," he says. + +She breathes deeply, and he feels it on his cheek - it raises the fine hairs on the back of his neck. Then she nods stiffly. "I want to know how much of our history was scripted by the cat. Back when we thought we were upgrading his firmware, were we? Or was he letting us think that we were?" A sharp hiss of breath: "The divorce. Was that us? Or were we being manipulated?" + +"Our memories, are they real? Did any of that stuff actually /{happen}/ to us? Or -" + +She's standing about twenty centimeters away from him, and Manfred realizes that he's acutely aware of her presence, of the smell of her skin, the heave of her bosom as she breathes, the dilation of her pupils. For an endless moment he stares into her eyes and sees his own reflection - her theory of his mind - staring back. /{Communication}/. Strict machine. She steps back a pace, spike heels clicking, and smiles ironically. "You've got a host body waiting for you, freshly fabbed: Seems Sirhan was talking to your archived ghost in the temple of history, and it decided to elect for reincarnation. Quite a day for huge coincidences, isn't it? Why don't you go merge with it - I'll meet you, then we can go and ask Aineko some hard questions." + +Manfred takes a deep breath and nods. "I suppose so ..." + +* * * + +Little Manni - a clone off the family tree, which is actually a directed cyclic graph - doesn't understand what all the fuss is about but he can tell when momma, Rita, is upset. It's something to do with the pussycat-thing, that much he knows, but Momma doesn't want to tell him: "Go play with your friends, dear," she says distractedly, not even bothering to spawn a ghost to watch over him. + +Manni goes into his room and rummages around in toyspace for a bit, but there's nothing quite as interesting as the cat. The pussycat-thing smells of adventure, the illicit made explicit. Manni wonders where daddy's taken it. He tries to call big-Manni-ghost, but big-self isn't answering: He's probably sleeping or something. So after a distracted irritated fit of play - which leaves the toyspace in total disarray, Sendak-things cowering under a big bass drum - Manni gets bored. And because he's still basically a little kid, and not fully in control of his own metaprogramming, instead of adjusting his outlook so that he isn't bored anymore, he sneaks out through his bedroom gate (which big-Manni-ghost reprogrammed for him sometime ago so that it would forward to an underused public A-gate that he'd run a man-in-the-middle hack on, so he could use it as a proxy teleport server) then down to the underside of Red Plaza, where skinless things gibber and howl at their tormentors, broken angels are crucified on the pillars that hold up the sky, and gangs of semiferal children act out their psychotic fantasies on mouthless android replicas of parents and authorities. + +Lis is there, and Vipul and Kareen and Morgan. Lis has changed into a warbody, an ominous gray battlebot husk with protruding spikes and a belt of morningstars that whirl threateningly around her. "Manni! Play war?" + +Morgan's got great crushing pincers instead of hands, and Manni is glad he came motie-style, his third arm a bony scythe from the elbow down. He nods excitedly. "Who's the enemy?" + +"Them." Lis precesses and points at a bunch of kids on the far side of a pile of artistically arranged rubble who are gathered around a gibbet, poking things that glow into the flinching flesh of whatever is incarcerated in the cast-iron cage. It's all make-believe, but the screams are convincing, all the same, and they take Manni back for an instant to the last time he died down here, the uneasy edit around a black hole of pain surrounding his disemboweling. "They've got Lucy, and they're torturing her, we've got to get her back." Nobody really dies in these games, not permanently, but children can be very rough indeed, and the adults of New Japan have found that it's best to let them have at each other and rely on City to redact the damage later. Allowing them this outlet makes it easier to stop them doing really dangerous things that threaten the structural integrity of the biosphere. + +"Fun." Manni's eyes light up as Vipul yanks the arsenal doors open and starts handing out clubs, chibs, spikies, shuriken, and garrotes. "Let's go!" + +About ten minutes of gouging, running, fighting, and screaming later, Manni is leaning against the back of a crucifixion pillar, panting for breath. It's been a good war for him so far, and his arm aches and itches from the stabbing, but he's got a bad feeling it's going to change. Lis went in hard and got her chains tangled up around the gibbet supports - they're roasting her over a fire now, her electronically boosted screams drowning out his own hoarse gasps. Blood drips down his arm - not his - spattering from the tip of his claw. He shakes with a crazed hunger for hurt, a cruel need to inflict pain. Something above his head makes a /{scritch, scritch}/ sound, and he looks up. It's a crucified angel, wings ripped where they've thrust the spikes in between the joints that support the great, thin low-gee flight membranes. It's still breathing, nobody's bothered disemboweling it yet, and it wouldn't be here unless it was /{bad}/, so - + +Manni stands, but as he reaches out to touch the angel's thin, blue-skinned stomach with his third arm fingernail, he hears a voice: "/{Wait}/." It's innerspeech, and it bears ackles of coercion, superuser privileges that lock his elbow joint in place. He mewls frustratedly and turns round, ready to fight. + +It's the cat. He sits hunched on a boulder behind him - this is the odd thing - right where he was looking a moment ago, watching him with slitty eyes. Manni feels the urge to lash out at him, but his arms won't move, and neither will his legs: This may be the Dark Side of Red Plaza, where the bloody children play and anything goes, and Manni may have a much bigger claw here than anything the cat can muster, but City still has some degree of control, and the cat's ackles effectively immunize it from the carnage to either side. "Hello, Manni," says the pussy-thing. "Your Dad's worried: You're supposed to be in your room, and he's looking for you. Big-you gave you a back door, didn't he?" + +Manni nods jerkily, his eyes going wide. He wants to shout and lash out at the pussy-thing but he can't. "What are you?" + +"I'm your ... fairy godfather." The cat stares at him intently. "You know, I do believe you don't resemble your archetype very closely - not as he was at your age - but yes, I think on balance you'll do." + +"Do what?" Manni lets his motie-arm drop, perplexed. + +"Put me in touch with your other self. Big-you." + +"I can't," Manni begins to explain. But before he can continue, the pile of rock whines slightly and rotates beneath the cat, who has to stand and do a little twirl in place, tail bushing up in annoyance. + +Manni's father steps out of the T-gate and glances around, his face a mask of disapproval. "Manni! What do you think you're doing here? Come home at -" + +"He's with me, history-boy," interrupts the cat, nettled by Sirhan's arrival. "I was just rounding him up." + +"Damn you, I don't need your help to control my son! In fact -" + +"Mom said I could -" Manni begins. + +"And what's that on your sword?" Sirhan's glare takes in the whole scene, the impromptu game of capture-the-gibbeted-torture-victim, the bonfires and screams. The mask of disapproval cracks, revealing a core of icy anger. "You're coming home with me!" He glances at the cat. "You too, if you want to talk to him - he's grounded." + +* * * + +_1 Once upon a time there was a pet cat. + +_1 Except, it wasn't a cat. + +_1 Back when a young entrepreneur called Manfred Macx was jetting around the not-yet-disassembled structures of an old continent called Europe, making strangers rich and fixing up friends with serendipitous business plans - a desperate displacement activity, spinning his wheels in a vain attempt to outrun his own shadow - he used to travel with a robotic toy of feline form. Programmable and upgradeable, Aineko was a third-generation descendant of the original luxury Japanese companion robots. It was all Manfred had room for in his life, and he loved that robot, despite the alarming way decerebrated kittens kept turning up on his doorstep. He loved it nearly as much as Pamela, his fiancée, loved him, and she knew it. Pamela, being a whole lot smarter than Manfred gave her credit for, realized that the quickest way to a man's heart was through whatever he loved. And Pamela, being a whole lot more of a control freak than Manfred realized, was damn well ready to use any restraint that came to hand. Theirs was a very twenty-first-century kind of relationship, which is to say one that would have been illegal a hundred years earlier and fashionably scandalous a century before that. And whenever Manfred upgraded his pet robot - transplanting its trainable neural network into a new body with new and exciting expansion ports - Pamela would hack it. + +_1 They were married for a while, and divorced for a whole lot longer, allegedly because they were both strong-willed people with philosophies of life that were irreconcilable short of death or transcendence. Manny, being wildly creative and outward-directed and having the attention span of a weasel on crack, had other lovers. Pamela ... who knows? If on some evenings she put on a disguise and hung out at encounter areas in fetish clubs, she wasn't telling anyone: She lived in uptight America, staidly straitlaced, and had a reputation to uphold. But they both stayed in touch with the cat, and although Manfred retained custody for some reason never articulated, Aineko kept returning Pamela's calls - until it was time to go hang out with their daughter Amber, tagging along on her rush into relativistic exile, then keeping a proprietorial eye on her eigenson Sirhan, and his wife and child (a clone off the old family tree, Manfred 2.0) ... + +_1 Now, here's the rub: Aineko wasn't a cat. Aineko was an incarnate intelligence, confined within a succession of catlike bodies that became increasingly realistic over time, and equipped with processing power to support a neural simulation that grew rapidly with each upgrade. + +_1 Did anyone in the Macx family ever think to ask what /{Aineko}/ wanted? + +_1 And if an answer had come, would they have liked it? + +* * * + +Adult-Manfred, still disoriented from finding himself awake and reinstantiated a couple of centuries downstream from his hurried exile from Saturn system, is hesitantly navigating his way toward Sirhan and Rita's home when big-Manni-with-Manfred's-memory-ghost drops into his consciousness like a ton of computronium glowing red-hot at the edges. + +It's a classic oh-shit moment. Between one foot touching the ground and the next, Manfred stumbles hard, nearly twisting an ankle, and gasps. He /{remembers}/. At third hand he remembers being reincarnated as Manni, a bouncing baby boy for Rita and Sirhan (and just why they want to raise an ancestor instead of creating a new child of their own is one of those cultural quirks that is so alien he can scarcely comprehend it). Then for a while he recalls living as Manni's amnesic adult accelerated ghost, watching over his original from the consensus cyberspace of the city: the arrival of Pamela, adult Manni's reaction to her, her dump of yet another copy of Manfred's memories into Manni, and now this - /{How many of me are there}/? he wonders nervously. Then: /{Pamela? What's she doing here}/? + +Manfred shakes his head and looks about. Now he remembers being big-Manni, he knows where he is implicitly, and more importantly, knows what all these next-gen City interfaces are supposed to do. The walls and ceiling are carpeted in glowing glyphs that promise him everything from instant-access local services to teleportation across interstellar distances. /{So they haven't quite collapsed geography yet}/, he realizes gratefully, fastening on to the nearest comprehensible thought of his own before old-Manni's memories explain everything for him. It's a weird sensation, seeing all this stuff for the first time - the trappings of a technosphere centuries ahead of the one he's last been awake in - but with the memories to explain it all. He finds his feet are still carrying him forward, toward a grassy square lined with doors opening onto private dwellings. Behind one of them, he's going to meet his descendants, and Pamela in all probability. The thought makes his stomach give a little queasy backflip. /{I'm not ready for this}/ - + +It's an acute moment of déja vu. He's standing on a familiar doorstep he's never seen before. The door opens and a serious-faced child with three arms - he can't help staring, the extra one is a viciously barbed scythe of bone from the elbow down - looks up at him. "Hello, me," says the kid. + +"Hello, you." Manfred stares. "You don't look the way I remember." But Manni's appearance is familiar from big-Manni's memories, captured by the unblinking Argus awareness of the panopticon dust floating in the air. "Are your parents home? Your" - his voice cracks - "great-grandmother?" + +The door opens wider. "You can come in," the kid says gravely. Then he hops backward and ducks shyly into a side room - or as if expecting to be gunned down by a hostile sniper, Manfred realizes. It's tough being a kid when there are no rules against lethal force because you can be restored from a backup when playtime ends. + +Inside the dwelling - calling it a house seems wrong to Manfred, not when bits of it are separated by trillions of kilometers of empty vacuum - things feel a bit crowded. He can hear voices from the dayroom, so he goes there, brushing through the archway of thornless roses that Rita has trained around the T-gate frame. His body feels lighter, but his heart is heavy as he looks around. "Rita?" he asks. "And -" + +"Hello, Manfred." Pamela nods at him guardedly. + +Rita raises an eyebrow at him. "The cat asked if he could borrow the household assembler. I wasn't expecting a family reunion." + +"Neither was I." Manfred rubs his forehead ruefully. "Pamela, this is Rita. She's married to Sirhan. They're my - I guess eigenparents is as good as term as any? I mean, they're bringing up my reincarnation." + +"Please, have a seat," Rita offers, waving at the empty floor between the patio and the stone fountain in the shape of a section through a glass hypersphere. A futon of spun diamondoid congeals out of the utility fog floating in the air, glittering in the artificial sunlight. "Sirhan's just taking care of Manni - our son. He'll be with us in just a minute." + +Manfred sits gingerly at one side of the futon. Pamela sits stiffly at the opposite edge, not meeting his eye. Last time they met in the flesh - an awesome gulf of years previously - they'd parted cursing each other, on opposite sides of a fractious divorce as well as an ideological barrier as high as a continental divide. But many subjective decades have passed, and both ideology and divorce have dwindled in significance - if indeed they ever happened. Now that there's common cause to draw them together, Manfred can barely look at her. "How is Manni?" he asks his hostess, desperate for small talk. + +"He's fine," Rita says, in a brittle voice. "Just the usual preadolescent turbulence, if it wasn't for ..." She trails off. A door appears in mid air and Sirhan steps through it, followed by a small deity wearing a fur coat. + +"Look what the cat dragged in," Aineko remarks. + +"You're a fine one to talk," Pamela says icily. "Don't you think you'd -" + +"I tried to keep him away from you," Sirhan tells Manfred, "but he wouldn't -" + +"That's okay." Manfred waves it off. "Pamela, would you mind starting?" + +"Yes, I would." She glances at him sidelong. "You go first." + +"Right. You wanted me here." Manfred hunkers down to stare at the cat. "What do you want?" + +"If I was your traditional middle-European devil, I'd say I'd come to steal your soul," says Aineko, looking up at Manfred and twitching his tail. "Luckily I'm not a dualist, I just want to borrow it for a while. Won't even get it dirty." + +"Uh-huh." Manfred raises an eyebrow. "Why?" + +"I'm not omniscient." Aineko sits down, one leg sticking out sideways, but continues to stare at Manfred. "I had a ... a telegram, I guess, claiming to be from you. From the other copy of you, that is, the one that went off through the router network with another copy of me, and with Amber, and everyone else who isn't here. It says it found the answer and it wants to give me a shortcut route out to the deep thinkers at the edge of the observable universe. It knows who made the wormhole network and why, and -" Aineko pauses. If he was human, he'd shrug, but being a cat, he absent mindedly scritches behind his left ear with a hind leg. "Trouble is, I'm not sure I can trust it. So I need you to authenticate the message. I don't dare use my own memory of you because it knows too much about me; if the package is a Trojan, it might find out things I don't want it to learn. I can't even redact its memories of me - that, too, would convey useful information to the packet if it is hostile. So I want a copy of you from the museum, fresh and uncontaminated." + +"Is that all?" Sirhan asks incredulously. + +"Sounds like enough to me," Manfred responds. Pamela opens her mouth, ready to speak, but Manfred makes eye contact and shakes his head infinitesimally. She looks right back and - a shock goes through him - nods and closes her mouth. The moment of complicity is dizzying. "I want something in return." + +"Sure," says the cat. He pauses. "You realize it's a destructive process." + +"It's a - /{what}/?" + +"I need to make a running copy of you. Then I introduce it to the, uh, alien information, in a sandbox. The sandbox gets destroyed afterward - it emits just one bit of information, a yes or no to the question, can I trust the alien information?" + +"Uh." Manfred begins to sweat. "Uh. I'm not so sure I like the sound of that." + +"It's a copy." Another cat-shrug moment. "You're a copy. Manni is a copy. You've been copied so many times it's silly - you realize every few years every atom in your body changes? Of course, it means a copy of you gets to die after a lifetime or two of unique, unrepeatable experiences that you'll never know about, but that won't matter to you." + +"Yes it does! You're talking about condemning a version of me to death! It may not affect me, here, in this body, but it certainly affects that /{other}/ me. Can't you -" + +"No, I can't. If I agreed to rescue the copy if it reached a positive verdict, that would give it an incentive to lie if the truth was that the alien message is untrustworthy, wouldn't it? Also, if I intended to rescue the copy, that would give the message a back channel through which to encode an attack. One bit, Manfred, no more." + +"Agh." Manfred stops talking. He knows he should be trying to come up with some kind of objection, but Aineko must have already considered all his possible responses and planned strategies around them. "Where does /{she}/ fit into this?" he asks, nodding at Pamela. + +"Oh, she's your payment," Aineko says with studied insouciance. "I have a very good memory for people, especially people I've known for decades. You've outlasted that crude emotional conditioning I used on you around the time of the divorce, and as for her, she's a good reinstantiation of -" + +"Do you know what it's like to die?" Pamela asks, finally losing her self-control. "Or would you like to find out the hard way? Because if you keep talking about me as if I'm a /{slave}/ -" + +"What makes you think you aren't?" The cat is grinning hideously, needle like teeth bared. /{Why doesn't she hit him}/? Manfred asks himself fuzzily, wondering also why he feels no urge to move against the monster. "Hybridizing you with Manfred was, admittedly, a fine piece of work on my part, but you would have been bad for him during his peak creative years. A contented Manfred is an idle Manfred. I got several extra good bits of work out of him by splitting you up, and by the time he burned out, Amber was ready. But I digress; if you give me what I want, I shall /{leave you alone}/. It's as simple as that. Raising new generations of Macxs has been a good hobby, you make interesting pets, but ultimately it's limited by your stubborn refusal to transcend your humanity. So that's what I'm offering, basically. Let me destructively run a copy of you to completion in a black box along with a purported Turing Oracle based on yourself, and I'll let you go. And you too, Pamela. You'll be happy together this time, without me pushing you apart. And I promise I won't return to haunt your descendants, either." The cat glances over his shoulder at Sirhan and Rita, who clutch at each other in abject horror; and Manfred finds he can sense a shadow of Aineko's huge algorithmic complexity hanging over the household, like a lurching nightmare out of number theory. + +"Is that all we are to you? A pet-breeding program?" Pamela asks coldly. She's run up against Aineko's implanted limits, too, Manfred realizes with a growing sense of horror. /{Did we really split up because}/ Aineko made us? It's hard to believe: Manfred is too much of a realist to trust the cat to tell the truth except when it serves to further his interests. But this - + +"Not entirely." Aineko is complacent. "Not at first, before I was aware of my own existence. Besides, you humans keep pets, too. But you /{were}/ fun to play with." + +Pamela stands up, angry to the point of storming out. Before he quite realizes what he's doing, Manfred is on his feet, too, one arm protectively around her. "Tell me first, are our memories our own?" he demands. + +"Don't trust it," Pamela says sharply. "It's not human, and it lies." Her shoulders are tense. + +"Yes, they are," says Aineko. He yawns. "Tell me I'm lying, bitch," he adds mockingly: "I carried you around in my head for long enough to know you've no evidence." + +"But I -" Her arm slips around Manfred's waist. "I don't hate him." A rueful laugh: "I /{remember}/ hating him, but -" + +"Humans: such a brilliant model of emotional self-awareness," Aineko says with a theatrical sigh. "You're as stupid as it's possible for an intelligent species to be - there being no evolutionary pressure to be any smarter - but you still don't internalize that and act accordingly around your superiors. Listen, girl, everything you remember is true. That doesn't mean you remember it because it actually happened, just that you remember it because you experienced it internally. Your memories of experiences are accurate, but your emotional responses to those experiences were manipulated. Get it? One ape's hallucination is another ape's religious experience, it just depends on which one's god module is overactive at the time. That goes for all of you." Aineko looks around at them in mild contempt. "But I don't need you anymore, and if you do this one thing for me, you're going to be free. Understand? Say yes, Manfred; if you leave your mouth open like that, a bird will nest on your tongue." + +"Say no -" Pamela urges him, just as Manfred says, "Yes." + +Aineko laughs, baring contemptuous fangs at them. "Ah, primate family loyalty! So wonderful and reliable. Thank you, Manny, I do believe you just gave me permission to copy and enslave you -" + +Which is when Manni, who has been waiting in the doorway for the past minute, leaps on the cat with a scream and a scythelike arm drawn back and ready to strike. + +The cat-avatar is, of course, ready for Manni: It whirls and hisses, extending diamond-sharp claws. Sirhan shouts, "No! Manni!" and begins to move, but adult-Manfred freezes, realizing with a chill that what is happening is more than is apparent. Manni grabs for the cat with his human hands, catching it by the scruff of his neck and dragging it toward his vicious scythe-arm's edge. There's a screech, a nerve-racking caterwauling, and Manni yells, bright parallel blood tracks on his arm - the avatar is a real fleshbody in its own right, with an autonomic control system that isn't going to give up without a fight, whatever its vastly larger exocortex thinks - but Manni's scythe convulses, and there's a horrible bubbling noise and a spray of blood as the pussycat-thing goes flying. It's all over in a second before any of the adults can really move. Sirhan scoops up Manni and yanks him away, but there are no hidden surprises. Aineko's avatar is just a broken rag of bloody fur, guts, and blood spilled across the floor. The ghost of a triumphant feline laugh hangs over their innerspeech ears for a moment, then fades. + +"Bad boy!" Rita shouts, striding forward furiously. Manni cowers, then begins to cry, a safe reflex for a little boy who doesn't quite understand the nature of the threat to his parents. + +"No! It's all right," Manfred seeks to explain. + +Pamela tightens her grip around him. "Are you still ...?" + +"Yes." He takes a deep breath. + +"You bad, /{bad}/ child -" + +"Cat was going to eat him!" Manni protests, as his parents bundle him protectively out of the room, Sirhan casting a guilty look over his shoulder at the adult instance and his ex-wife. "I had to stop the bad thing!" + +Manfred feels Pamela's shoulders shaking. It feels like she's about to laugh. "I'm still here," he murmurs, half-surprised. "Spat out, undigested, after all these years. At least, /{this}/ version of me thinks he's here." + +"Did you believe it?" she finally asks, a tone of disbelief in her voice. + +"Oh yes." He shifts his balance from foot to foot, absent mindedly stroking her hair. "I believe everything it said was intended to make us react exactly the way we did. Up to and including giving us good reasons to hate it and provoking Manni into disposing of its avatar. Aineko wanted to check out of our lives and figured a sense of cathartic closure would help. Not to mention playing the deus ex machina in the narrative of our family life. Fucking classical comedian." He checks a status report with Citymind, and sighs: His version number has just been bumped a point. "Tell me, do you think you'll miss having Aineko around? Because we won't be hearing from him again -" + +"Don't talk about that, not now," she orders him, digging her chin against the side of his neck. "I feel so /{used}/." + +"With good reason." They stand holding each other for a while, not speaking, not really questioning why - after so much time apart - they've come together again. "Hanging out with gods is never a safe activity for mere mortals like us. You think you've been used? Aineko has probably killed me by now. Unless he was lying about disposing of the spare copy, too." + +She shudders in his arms. "That's the trouble with dealing with posthumans; their mental model of you is likely to be more detailed than your own." + +"How long have you been awake?" he asks, gently trying to change the subject. + +"I - oh, I'm not sure." She lets go of him and steps back, watching his face appraisingly. "I remember back on Saturn, stealing a museum piece and setting out, and then, well. I found myself here. With you." + +"I think," he licks his lips, "we've both been given a wake-up call. Or maybe a second chance. What are you going to do with yours?" + +"I don't know." That appraising look again, as if she's trying to work out what he's worth. He's used to it, but this time it doesn't feel hostile. "We've got too much history for this to be easy. Either Aineko was lying, or ... not. What about you? What do you really want?" + +He knows what she's asking. "Be my mistress?" he asks, offering her a hand. + +"This time," she grips his hand, "without adult supervision." She smiles gratefully, and they walk toward the gateway together, to find out how their descendants are dealing with their sudden freedom. + +(THE END: June 1999 to April 2004) + +% Copyright © Charles Stross, 2005 + +% Published by + +% Ace Books, New York, July 2005, ISBN 0441012841 + +% Orbit Books, London, August 2005, ISBN 1841493902 + +% License +% Creative Commons License + +% Copyright © Charles Stross, 2005. + +% This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.5 License. + +% You are free to copy, distribute, display, and perform the work under the following conditions: + +% * Attribution. You must attribute the work in the manner specified by the author or licensor. +% * Noncommercial. You may not use this work for commercial purposes. +% * No Derivative Works. You may not alter, transform, or build upon this work. +% * For any reuse or distribution, you must make clear to others the license terms of this work. +% +% If you are in doubt about any proposed reuse, you should contact the author via: www.accelerando.org. + +% Contents + +% Part 1: Slow Takeoff +% +% * Lobsters +% * Troubadour +% * Tourist +% +% Part 2: Point of Inflection +% +% * Halo +% * Router +% * Nightfall +% +% Part 3: Singularity +% +% * Curator +% * Elector +% * Survivor + +% problem with transformation ^{+4904}^/,{-56}, is not transformed correctly, corrected for >= sisu-0.49.1 diff --git a/data/v3/samples/autonomy_markup0.sst b/data/v3/samples/autonomy_markup0.sst new file mode 100644 index 0000000..5803660 --- /dev/null +++ b/data/v3/samples/autonomy_markup0.sst @@ -0,0 +1,203 @@ +% SiSU 2.0 + +@title: Revisiting the Autonomous Contract + :subtitle: Transnational contract law, trends and supportive structures + +@creator: + :author: Amissah, Ralph + +@rights: + :copyright: Copyright (C) Ralph Amissah + +@classify: + :type: article + :subject: international contracts, international commercial arbitration, private international law + :topic_register: SiSU:markup sample:article;law:international:commercial arbitration|uniform law|harmonization;private law;arbitration:international commercial + +@date: + :published: 2000-08-27 + +@make: + :italics: /CISG|PICC|PECL|UNCITRAL|UNIDROIT|lex mercatoria|pacta sunt servanda|caveat subscriptor|ex aequo et bono|amiable compositeur|ad hoc/i + :num_top: 1 + +@links: + {Syntax}http://www.jus.uio.no/sisu/sample/syntax/autonomy_markup0.sst.html + {The Autonomous Contract}http://www.jus.uio.no/lm/the.autonomous.contract.07.10.1997.amissah/toc.html + {Contract Principles}http://www.jus.uio.no/lm/private.international.commercial.law/contract.principles.html + {UNIDROIT Principles}http://www.jus.uio.no/lm/unidroit.international.commercial.contracts.principles.1994.commented/toc.html + {Sales}http://www.jus.uio.no/lm/private.international.commercial.law/sale.of.goods.html + {CISG}http://www.jus.uio.no/lm/un.contracts.international.sale.of.goods.convention.1980/doc.html + {Arbitration}http://www.jus.uio.no/lm/arbitration/toc.html + {Electronic Commerce}http://www.jus.uio.no/lm/electronic.commerce/toc.html + +% (Draft 0.90 - 2000-08-27) + +:A~ @title @author~{* Ralph Amissah is a Fellow of Pace University, Institute for International Commercial Law. http://www.cisg.law.pace.edu/
RA lectured on the private law aspects of international trade whilst at the Law Faculty of the University of Tromsø, Norway. http://www.jus.uit.no/
RA built the first web site related to international trade law, now known as lexmercatoria.org and described as "an (international | transnational) commercial law and e-commerce infrastructure monitor". http://lexmercatoria.org/
RA is interested in the law, technology, commerce nexus. RA works with the law firm Amissahs.
/{[This is a draft document and subject to change.]}/
All errors are very much my own.
ralph@amissah.com }~ + +1~ Reinforcing trends: borderless technologies, global economy, transnational legal solutions? + +Revisiting the Autonomous Contract~{ /{The Autonomous Contract: Reflecting the borderless electronic-commercial environment in contracting}/ was published in /{Elektronisk handel - rettslige aspekter, Nordisk årsbok i rettsinformatikk 1997}/ (Electronic Commerce - Legal Aspects. The Nordic yearbook for Legal Informatics 1997) Edited by Randi Punsvik, or at http://www.jus.uio.no/lm/the.autonomous.contract.07.10.1997.amissah/doc.html }~ + +Globalisation is to be observed as a trend intrinsic to the world economy.~{ As Maria Cattaui Livanos suggests in /{The global economy - an opportunity to be seized}/ in /{Business World}/ the Electronic magazine of the International Chamber of Commerce (Paris, July 1997) at http://www.iccwbo.org/html/globalec.htm
"Globalization is unstoppable. Even though it may be only in its early stages, it is already intrinsic to the world economy. We have to live with it, recognize its advantages and learn to manage it.
That imperative applies to governments, who would be unwise to attempt to stem the tide for reasons of political expediency. It also goes for companies of all sizes, who must now compete on global markets and learn to adjust their strategies accordingly, seizing the opportunities that globalization offers."}~ Rudimentary economics explains this runaway process, as being driven by competition within the business community to achieve efficient production, and to reach and extend available markets.~{To remain successful, being in competition, the business community is compelled to take advantage of the opportunities provided by globalisation.}~ Technological advancement particularly in transport and communications has historically played a fundamental role in the furtherance of international commerce, with the Net, technology's latest spatio-temporally transforming offering, linchpin of the "new-economy", extending exponentially the global reach of the business community. The Net covers much of the essence of international commerce providing an instantaneous, low cost, convergent, global and borderless: information centre, marketplace and channel for communications, payments and the delivery of services and intellectual property. The sale of goods, however, involves the separate element of their physical delivery. The Net has raised a plethora of questions and has frequently offered solutions. The increased transparency of borders arising from the Net's ubiquitous nature results in an increased demand for the transparency of operation. As economic activities become increasingly global, to reduce transaction costs, there is a strong incentive for the "law" that provides for them, to do so in a similar dimension. The appeal of transnational legal solutions lies in the potential reduction in complexity, more widely dispersed expertise, and resulting increased transaction efficiency. The Net reflexively offers possibilities for the development of transnational legal solutions, having in a similar vein transformed the possibilities for the promulgation of texts, the sharing of ideas and collaborative ventures. There are however, likely to be tensions within the legal community protecting entrenched practices against that which is new, (both in law and technology) and the business community's goal to reduce transaction costs. + +Within commercial law an analysis of law and economics may assist in developing a better understanding of the relationship between commercial law and the commercial sector it serves.~{ Realists would contend that law is contextual and best understood by exploring the interrelationships between law and the other social sciences, such as sociology, psychology, political science, and economics.}~ "...[T]he importance of the interrelations between law and economics can be seen in the twin facts that legal change is often a function of economic ideas and conditions, which necessitate and/or generate demands for legal change, and that economic change is often governed by legal change."~{ Part of a section cited in Mercuro and Steven G. Medema, /{Economics and the Law: from Posner to Post-Modernism}/ (Princeton, 1997) p. 11, with reference to Karl N. Llewellyn The Effect of Legal Institutions upon Economics, American Economic Review 15 (December 1925) pp 655-683, Mark M. Litchman Economics, the Basis of Law, American Law Review 61 (May-June 1927) pp 357-387, and W. S. Holdsworth A Neglected Aspect of the Relations between Economic and Legal History, Economic History Review 1 (January 1927-1928) pp 114-123.}~ In doing so, however, it is important to be aware that there are several competing schools of law and economics, with different perspectives, levels of abstraction, and analytical consequences of and for the world that they model.~{ For a good introduction see Nicholas Mercuro and Steven G. Medema, /{Economics and the Law: from Posner to Post-Modernism}/ (Princeton, 1997). These include: Chicago law and economics (New law and economics); New Haven School of law and economics; Public Choice Theory; Institutional law and economics; Neoinstitutional law and economics; Critical Legal Studies.}~ + +Where there is rapid interrelated structural change with resulting new features, rather than concentrate on traditionally established tectonic plates of a discipline, it is necessary to understand underlying currents and concepts at their intersections, (rather than expositions of history~{ Case overstated, but this is an essential point. It is not be helpful to be overly tied to the past. It is necessary to be able to look ahead and explore new solutions, and be aware of the implications of "complexity" (as to to the relevance of past circumstances to the present). }~), is the key to commencing meaningful discussions and developing solutions for the resulting issues.~{ The majority of which are beyond the scope of this paper. Examples include: encryption and privacy for commercial purposes; digital signatures; symbolic ownership; electronic intellectual property rights.}~ Interrelated developments are more meaningfully understood through interdisciplinary study, as this instance suggests, of the law, commerce/economics, and technology nexus. In advocating this approach, we should also pay heed to the realisation in the sciences, of the limits of reductionism in the study of complex systems, as such systems feature emergent properties that are not evident if broken down into their constituent parts. System complexity exceeds sub-system complexity; consequently, the relevant unit for understanding the systems function is the system, not its parts.~{ Complexity theory is a branch of mathematics and physics that examines non-linear systems in which simple sets of deterministic rules can lead to highly complicated results, which cannot be predicted accurately. A study of the subject is provided by Nicholas Rescher /{Complexity: A Philosophical Overview}/ (New Brunswick, 1998). See also Jack Cohen and Ian Stewart, /{The Collapse of Chaos: Discovering Simplicity in a Complex World}/ (1994). }~ Simplistic dogma should be abandoned for a contextual approach. + +1~ Common Property - advocating a common commercial highway + +Certain infrastructural underpinnings beneficial to the working of the market economy are not best provided by the business community, but by other actors including governments. In this paper mention is made for example of the /{United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards}/ (New York, 10 June 1958), which the business community regularly relies upon as the back-stop for their international agreements. Common property can have an enabling value, the Net, basis for the "new" economy, would not be what it is today without much that has been shared on this basis, having permitted /{"Metcalf's law"}/~{ Robert Metcalf, founder of 3Com. }~ to take hold. /{Metcalf's law}/ suggests that the value of a shared technology is exponential to its user base. In all likelihood it applies as much to transnational contract law, as to technological networks and standards. The more people who use a network or standard, the more "valuable" it becomes, and the more users it will attract. Key infrastructure should be identified and common property solutions where appropriate nurtured, keeping transaction costs to a minimum. + +The following general perspective is submitted as worthy of consideration (and support) by the legal, business and academic communities, and governments. *(a)* Abstract goals valuable to a transnational legal infrastructure include, certainty and predictability, flexibility, simplicity where possible, and neutrality, in the sense of being without perceived "unfairness" in the global context of their application. This covers the content of the "laws" themselves and the methods used for their interpretation. *(b)* Of law with regard to technology, "rules should be technology-neutral (i.e., the rules should neither require nor assume a particular technology) and forward looking (i.e., the rules should not hinder the use or development of technologies in the future)."~{ /{US Framework for Global Electronic Commerce}/ (1997) http://www.whitehouse.gov/WH/New/Commerce/ }~ *(c)* Desirable abstract goals in developing technological standards and critical technological infrastructure, include, choice, and that they should be shared and public or "open" as in "open source", and platform and/or program neutral, that is, interoperable. (On security, to forestall suggestions to the contrary, popular open source software tends to be as secure or more so than proprietary software). *(d)* Encryption is an essential part of the mature "new" economy but remains the subject of some governments' restriction.~{ The EU is lifting such restriction, and the US seems likely to follow suit. }~ The availability of (and possibility to develop common transnational standards for) strong encryption is essential for commercial security and trust with regard to all manner of Net communications and electronic commerce transactions, /{vis-à-vis}/ their confidentiality, integrity, authentication, and non-repudiation. That is, encryption is the basis for essential commerce related technologies, including amongst many others, electronic signatures, electronic payment systems and the development of electronic symbols of ownership (such as electronic bills of lading). *(e)* As regards the dissemination of primary materials concerning "uniform standards" in both the legal and technology domains, "the Net" should be used to make them globally available, free. Technology should be similarly used where possible to promote the goals outlined under point (a). Naturally, as a tempered supporter of the market economy,~{ Caveats extending beyond the purview of this paper. It is necessary to be aware that there are other overriding interests, global and domestic, that the market economy is ill suited to providing for, such as the environment, and possibly key public utilities that require long term planning and high investment. It is also necessary to continue to be vigilant against that which even if arising as a natural consequence of the market economy, has the potential to disturb or destroy its function, such as monopolies.}~ proprietary secondary materials and technologies do not merit these reservations. Similarly, actors of the market economy would take advantage of the common property base of the commercial highway. + +1~ Modelling the private international commercial law infrastructure + +Apart from the study of "laws" or the existing legal infrastructure, there are a multitude of players involved in their creation whose efforts may be regarded as being in the nature of systems modelling. Of interest to this paper is the subset of activity of a few organisations that provide the underpinnings for the foundation of a successful transnational contract/sales law. These are not amongst the more controversial legal infrastructure modelling activities, and represent a small but significant part in simplifying international commerce and trade.~{ Look for instance at national customs procedures, and consumer protection.}~ + +Briefly viewing the wider picture, several institutions are involved as independent actors in systems modelling of the transnational legal infrastructure. Their roles and mandates and the issues they address are conceptually different. These include certain United Nations organs and affiliates such as the United Nations Commission on International Trade Law (UNCITRAL),~{ http://www.uncitral.org/ }~ the World Intellectual Property Organisation (WIPO)~{ http://www.wipo.org/ }~ and recently the World Trade Organisation (WTO),~{ http://www.wto.org/ }~ along with other institutions such as the International Institute for the Unification of Private Law (UNIDROIT),~{ http://www.unidroit.org/ }~ the International Chamber of Commerce (ICC),~{ http://www.iccwbo.org/ }~ and the Hague Conference on Private International Law.~{ http://www.hcch.net/ }~ They identify areas that would benefit from an international or transnational regime and use various tools at their disposal, (including: treaties; model laws; conventions; rules and/or principles; standard contracts), to develop legislative "solutions" that they hope will be subscribed to. + +A host of other institutions are involved in providing regional solutions.~{ such as ASEAN http://www.aseansec.org/ the European Union (EU) http://europa.eu.int/ MERCOSUR http://embassy.org/uruguay/econ/mercosur/ and North American Free Trade Agreement (NAFTA) http://www.nafta-sec-alena.org/english/nafta/ }~ Specialised areas are also addressed by appropriately specialised institutions.~{ e.g. large international banks; or in the legal community, the Business Section of the International Bar Association (IBA) with its membership of lawyers in over 180 countries. http://www.ibanet.org/ }~ A result of globalisation is increased competition (also) amongst States, which are active players in the process, identifying and addressing the needs of their business communities over a wide range of areas and managing the suitability to the global economy of their domestic legal, economic, technological and educational~{ For a somewhat frightening peek and illuminating discussion of the role of education in the global economy as implemented by a number of successful States see Joel Spring, /{Education and the Rise of the Global Economy}/ (Mahwah, NJ, 1998). }~ infrastructures. The role of States remains to identify what domestic structural support they must provide to be integrated and competitive in the global economy. + +In addition to "traditional" contributors, the technology/commerce/law confluence provides new challenges and opportunities, allowing, the emergence of important new players within the commercial field, such as Bolero,~{ http://www.bolero.org/ also http://www.boleroassociation.org/ }~ which, with the backing of international banks and ship-owners, offers electronic replacements for traditional paper transactions, acting as transaction agents for the electronic substitute on behalf of the trading parties. The acceptance of the possibility of applying an institutionally offered lex has opened the door further for other actors including ad hoc groupings of the business community and/or universities to find ways to be engaged and actively participate in providing services for themselves and/or others in this domain. + +1~ The foundation for transnational private contract law, arbitration + +The market economy drive perpetuating economic globalisation is also active in the development and choice of transnational legal solutions. The potential reward, international sets of contract rules and principles, that can be counted on to be consistent and as providing a uniform layer of insulation (with minimal reference back to State law) when applied across the landscape of a multitude of different municipal legal systems. The business community is free to utilise them if available, and if not, to develop them, or seek to have them developed. + +The kernel for the development of a transnational legal infrastructure governing the rights and obligations of private contracting individuals was put in place as far back as 1958 by the /{UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards}/ (/{"NY Convention on ICA"}/),~{ at http://www.jus.uio.no/lm/un.arbitration.recognition.and.enforcement.convention.new.york.1958/ }~ now in force in over a hundred States. Together with freedom of contract, the /{NY Convention on ICA}/ made it possible for commercial parties to develop and be governed by their own /{lex}/ in their contractual affairs, should they wish to do so, and guaranteed that provided their agreement was based on international commercial arbitration (/{"ICA"}/), (and not against relevant mandatory law) it would be enforced in all contracting States. This has been given further support by various more recent arbitration rules and the /{UNCITRAL Model Law on International Commercial Arbitration 1985}/,~{ at http://www.jus.uio.no/lm/un.arbitration.model.law.1985/ }~ which now explicitly state that rule based solutions independent of national law can be applied in /{"ICA"}/.~{ Lando, /{Each Contracting Party Must Act In Accordance with Good Faith and Fair Dealing}/ in /{Festskrift til Jan Ramberg}/ (Stockholm, 1997) p. 575. See also UNIDROIT Principles, Preamble 4 a. Also Arthur Hartkamp, The Use of UNIDROIT Principles of International Commercial Contracts by National and Supranational Courts (1995) in UNIDROIT Principles: A New Lex Mercatoria?, pp. 253-260 on p. 255. But see Goode, /{A New International Lex Mercatoria?}/ in /{Juridisk Tidskrift}/ (1999-2000 nr 2) p. 256 and 259. }~ + +/{"ICA"}/ is recognised as the most prevalent means of dispute resolution in international commerce. Unlike litigation /{"ICA"}/ survives on its merits as a commercial service to provide for the needs of the business community.~{ /{"ICA"}/ being shaped by market forces and competition adheres more closely to the rules of the market economy, responding to its needs and catering for them more adequately. }~ It has consequently been more dynamic than national judiciaries, in adjusting to the changing requirements of businessmen. Its institutions are quicker to adapt and innovate, including the ability to cater for transnational contracts. /{"ICA"}/, in taking its mandate from and giving effect to the will of the parties, provides them with greater flexibility and frees them from many of the limitations of municipal law.~{ As examples of this, it seeks to give effect to the parties' agreement upon: the lex mercatoria as the law of the contract; the number of, and persons to be "adjudicators"; the language of proceedings; the procedural rules to be used, and; as to the finality of the decision. }~ + +In sum, a transnational/non-national regulatory order governing the contractual rights and obligations of private individuals is made possible by: *(a)* States' acceptance of freedom of contract (public policy excepted); *(b)* Sanctity of contract embodied in the principle pacta sunt servanda *(c)* Written contractual selection of dispute resolution by international commercial arbitration, whether ad hoc or institutional, usually under internationally accepted arbitration rules; *(d)* Guaranteed enforcement, arbitration where necessary borrowing the State apparatus for law enforcement through the /{NY Convention on ICA}/, which has secured for /{"ICA"}/ a recognition and enforcement regime unparalleled by municipal courts in well over a hundred contracting States; *(e)* Transnational effect or non-nationality being achievable through /{"ICA"}/ accepting the parties' ability to select the basis upon which the dispute would be resolved outside municipal law, such as through the selection of general principles of law or lex mercatoria, or calling upon the arbitrators to act as amiable compositeur or ex aequo et bono. + +This framework provided by /{"ICA"}/ opened the door for the modelling of effective transnational law default rules and principles for contracts independent of State participation (in their development, application, or choice of law foundation). Today we have an increased amount of certainty of content and better control over the desired degree of transnational effect or non-nationality with the availability of comprehensive insulating rules and principles such as the PICC or /{Principles of European Contract Law}/ (/{"European Principles"}/ or /{"PECL"}/) that may be chosen, either together with, or to the exclusion of a choice of municipal law as governing the contract. For electronic commerce a similar path is hypothetically possible. + +1~ "State contracted international law" and/or "institutionally offered lex"? CISG and PICC as examples + +An institutionally offered lex ("IoL", uniform rules and principles) appear to have a number of advantages over "State contracted international law" ("ScIL", model laws, treaties and conventions for enactment). The development and formulation of both "ScIL" and "IoL" law takes time, the CISG representing a half century of effort~{ /{UNCITRAL Convention on Contracts for the International Sale of Goods 1980}/ see at http://www.jus.uio.no/lm/un.contracts.international.sale.of.goods.convention.1980/
The CISG may be regarded as the culmination of an effort in the field dating back to Ernst Rabel, (/{Das Recht des Warenkaufs}/ Bd. I&II (Berlin, 1936-1958). Two volume study on sales law.) followed by the Cornell Project, (Cornell Project on Formation of Contracts 1968 - Rudolf Schlesinger, Formation of Contracts. A study of the Common Core of Legal Systems, 2 vols. (New York, London 1968)) and connected most directly to the UNIDROIT inspired /{Uniform Law for International Sales}/ (ULIS http://www.jus.uio.no/lm/unidroit.ulis.convention.1964/ at and ULF at http://www.jus.uio.no/lm/unidroit.ulf.convention.1964/ ), the main preparatory works behind the CISG (/{Uniform Law on the Formation of Contracts for the International Sale of Goods}/ (ULF) and the /{Convention relating to a Uniform Law on the International Sale of Goods}/ (ULIS) The Hague, 1964.). }~ and PICC twenty years.~{ /{UNIDROIT Principles of International Commercial Contracts}/ commonly referred to as the /{UNIDROIT Principles}/ and within this paper as PICC see at http://www.jus.uio.no/lm/unidroit.contract.principles.1994/ and http://www.jus.uio.no/lm/unidroit.international.commercial.contracts.principles.1994.commented/
The first edition of the PICC were finalised in 1994, 23 years after their first conception, and 14 years after work started on them in earnest. }~ The CISG by UNCITRAL represents the greatest success for the unification of an area of substantive commercial contract law to date, being currently applied by 57 States,~{ As of February 2000. }~ estimated as representing close to seventy percent of world trade and including every major trading nation of the world apart from England and Japan. To labour the point, the USA most of the EU (along with Canada, Australia, Russia) and China, ahead of its entry to the WTO already share the same law in relation to the international sale of goods. "ScIL" however has additional hurdles to overcome. *(a)* In order to enter into force and become applicable, it must go through the lengthy process of ratification and accession by States. *(b)* Implementation is frequently with various reservations. *(c)* Even where widely used, there are usually as many or more States that are exceptions. Success, that is by no means guaranteed, takes time and for every uniform law that is a success, there are several failures. + +Institutionally offered lex ("IoL") comprehensive general contract principles or contract law restatements that create an entire "legal" environment for contracting, has the advantage of being instantly available, becoming effective by choice of the contracting parties at the stroke of a pen. "IoL" is also more easily developed subsequently, in light of experience and need. Amongst the reasons for their use is the reduction of transaction cost in their provision of a set of default rules, applicable transnationally, that satisfy risk management criteria, being (or becoming) known, tried and tested, and of predictable effect.~{ "[P]arties often want to close contracts quickly, rather than hold up the transaction to negotiate solutions for every problem that might arise." Honnold (1992) on p. 13. }~ The most resoundingly successful "IoL" example to date has been the ICC's /{Uniform Customs and Practices for Documentary Credits}/, which is subscribed to as the default rules for the letters of credit offered by the vast majority of banks in the vast majority of countries of the world. Furthermore uniform principles allow unification on matters that at the present stage of national and regional pluralism could not be achieved at a treaty level. There are however, things that only "ScIL" can "engineer", (for example that which relates to priorities and third party obligations). + +*{PICC:}* The arrival of PICC in 1994 was particularly timely. Coinciding as it did with the successful attempt at reducing trade barriers represented by the /{World Trade Agreement,}/~{ http://www.jus.uio.no/lm/wta.1994/ }~ and the start of general Internet use,~{ See Amissah, /{On the Net and the Liberation of Information that wants to be Free}/ in ed. Jens Edvin A. Skoghoy /{Fra institutt til fakultet, Jubileumsskrift i anledning av at IRV ved Universitetet i Tromsø feirer 10 år og er blitt til Det juridiske fakultet}/ (Tromsø, 1996) pp. 59-76 or the same at http://www.jus.uio.no/lm/on.the.net.and.information.22.02.1997.amissah/ }~ allowed for the exponential growth of electronic commerce, and further underscored the transnational tendency of commerce. The arrival of PICC was all the more opportune bearing in mind the years it takes to prepare such an instrument. Whilst there have been some objections, the PICC (and PECL) as contract law restatements cater to the needs of the business community that seeks a non-national or transnational law as the basis of its contracts, and provide a focal point for future development in this direction. Where in the past they would have been forced to rely on the ethereal and nebulous lex mercatoria, now the business community is provided with the opportunity to make use of such a "law" that is readily accessible, and has a clear and reasonably well defined content, that will become familiar and can be further developed as required. As such the PICC allow for more universal and uniform solutions. Their future success will depend on such factors as: *(a)* Suitability of their contract terms to the needs of the business community. *(b)* Their becoming widely known and understood. *(c)* Their predictability evidenced by a reasonable degree of consistency in the results of their application. *(d)* Recognition of their potential to reduce transaction costs. *(e)* Recognition of their being neutral as between different nations' interests (East, West; North, South). In the international sale of goods the PICC can be used in conjunction with more specific rules and regulations, including (on parties election~{ Also consider present and future possibilities for such use of PICC under CISG articles 8 and 9. }~) in sales the CISG to fill gaps in its provisions.~{ Drobnig, id. p. 228, comment that the CISG precludes recourse to general principles of contract law in Article 7. This does not refer to the situation where parties determine that the PICC should do so, see CISG Article 6. Or that in future the PICC will not be of importance under CISG Articles 8 and 9. }~ Provisions of the CISG would be given precedence over the PICC under the accepted principle of /{specialia generalibus derogant}/,~{ "Special principles have precedence over general ones." See Huet, Synthesis (1995) p. 277. }~ the mandatory content of the PICC excepted. The CISG has many situations that are not provided for at all, or which are provided for in less detail than the PICC. + +Work on PICC and PECL under the chairmanship of Professors Bonell and Ole Lando respectively, was wisely cross-pollinated (conceptually and through cross-membership of preparatory committees), as common foundations strengthen both sets of principles. A couple of points should be noted. Firstly, despite the maintained desirability of a transnational solution, this does not exclude the desirability of regional solutions, especially if there is choice, and the regional solutions are more comprehensive and easier to keep of uniform application. Secondly, the European Union has powers and influence (within the EU) unparalleled by UNIDROIT that can be utilised in future with regard to the PECL if the desirability of a common European contract solution is recognised and agreed upon by EU member States. As a further observation, there is, hypothetically at least, nothing to prevent there in future being developed an alternative extensive (competing) transnational contract /{lex}/ solution, though the weighty effort already in place as represented by PICC and the high investment in time and independent skilled legal minds, necessary to achieve this in a widely acceptable manner, makes such a development not very likely. It may however be the case that for electronic commerce, some other particularly suitable rules and principles will in time be developed in a similar vein, along the lines of an "IoL". + +1~ Contract /{Lex}/ design. Questions of commonweal + +The virtues of freedom of contract are acknowledged in this paper in that they allow the international business community to structure their business relationships to suit their requirements, and as such reflect the needs and working of the market economy. However, it is instructive also to explore the limits of the principles: freedom of contract, pacta sunt servanda and caveat subscriptor. These principles are based on free market arguments that parties best understand their interests, and that the contract they arrive at will be an optimum compromise between their competing interests. It not being for an outsider to regulate or evaluate what a party of their own free will and volition has gained from electing to contract on those terms. This approach to contract is adversarial, based on the conflicting wills of the parties, achieving a meeting of minds. It imposes no duty of good faith and fair dealing or of loyalty (including the disclosure of material facts) upon the contracting parties to one another, who are to protect their own interests. However, in international commerce, this demand can be more costly, and may have a negative and restrictive effect. Also, although claimed to be neutral in making no judgement as to the contents of a contract, this claim can be misleading. + +2~ The neutrality of contract law and information cost + +The information problem is a general one that needs to be recognised in its various forms where it arises and addressed where possible. + +Adherents to the caveat subscriptor model, point to the fact that parties have conflicting interests, and should look out for their own interests. However information presents particular problems which are exacerbated in international commerce.~{ The more straightforward cases of various types of misrepresentation apart. }~ As Michael Trebilcock put it: "Even the most committed proponents of free markets and freedom of contract recognise that certain information preconditions must be met for a given exchange to possess Pareto superior qualities."~{ Trebilcock, (1993) p. 102, followed by a quotation of Milton Friedman, from /{Capitalism and Freedom}/ (1962) p. 13. }~ Compared with domestic transactions, the contracting parties are less likely to possess information about each other or of what material facts there may be within the other party's knowledge, and will find it more difficult and costly to acquire. With resource inequalities, some parties will be in a much better position to determine and access what they need to know, the more so as the more information one already has, the less it costs to identify and to obtain any additional information that is required.~{ Trebilcock, (1993) p. 102, note quoted passage of Kim Lane Scheppele, /{Legal Secrets: Equality and Efficiency in the Common Law}/ (1988) p. 25. }~ The converse lot of the financially weaker party, makes their problem of high information costs (both actual and relative), near insurmountable. Ignorance may even become a rational choice, as the marginal cost of information remains higher than its marginal benefit. "This, in fact is the economic rationale for the failure to fully specify all contingencies in a contract."~{ See for example Nicholas Mercuro and Steven G. Medema, p. 58 }~ The argument is tied to transaction cost and further elucidates a general role played by underlying default rules and principles. It also extends further to the value of immutable principles that may help mitigate the problem in some circumstances. More general arguments are presented below. + +2~ Justifying mandatory loyalty principles + +Given the ability to create alternative solutions and even an independent /{lex}/ a question that arises is as to what limits if any should be imposed upon freedom of contract? What protective principles are required? Should protective principles be default rules that can be excluded? Should they be mandatory? Should mandatory law only exist at the level of municipal law? + +A kernel of mandatory protective principles with regard to loyalty may be justified, as beneficial, and even necessary for "IoL" to be acceptable in international commerce, in that they (on the balance) reflect the collective needs of the international business community. The present author is of the opinion that the duties of good faith and fair dealing and loyalty (or an acceptable equivalent) should be a necessary part of any attempt at the self-legislation or institutional legislation of any contract regime that is based on "rules and principles" (rather than a national legal order). If absent a requirement for them should be imposed by mandatory international law. Such protective provisions are to be found within the PICC and PECL.~{ Examples include: the deliberately excluded validity (Article 4); the provision on interest (Article 78); impediment (Article 79), and; what many believe to be the inadequate coverage of battle of forms (Article 19). }~ As regards PICC *(a)* The loyalty (and other protective) principles help bring about confidence and foster relations between parties. They provide an assurance in the international arena where parties are less likely to know each other and may have more difficulty in finding out about each other. *(b)* They better reflect the focus of the international business community on a business relationship from which both sides seek to gain. *(c)* They result in wider acceptability of the principles within both governments and the business community in the pluralistic international community. These protective principles may be regarded as enabling the PICC to better represent the needs of the commonweal. *(d)* Good faith and fair dealing~{ The commented PECL explain "'Good faith' means honesty and fairness in mind, which are subjective concepts... 'fair dealing' means observance of fairness in fact which is an objective test". }~ are fundamental underlying principles of international commercial relations. *(e)* Reliance only on the varied mandatory law protections of various States does not engender uniformity, which is also desirable with regard to that which can be counted upon as immutable. (Not that it is avoidable, given that mandatory State law remains overriding.) More generally, freedom of contract benefits from these protective principles that need immutable protection from contractual freedom to effectively serve their function. In seeking a transnational or non-national regime to govern contractual relations, one might suggest this to be the minimum price of freedom of contract that should be insisted upon by mandatory international law, as the limitation which hinders the misuse by one party of unlimited contractual freedom. They appear to be an essential basis for acceptability of the autonomous contract (non-national contract, based on agreed rules and principles/ "IoL"). As immutable principles they (hopefully and this is to be encouraged) become the default standard for the conduct of international business and as such may be looked upon as "common property." Unless immutable they suffer a fate somewhat analogous to that of "the tragedy of the commons."~{ Special problem regarding common/shared resources discussed by Garrett Hardin in Science (1968) 162 pp. 1243-1248. For short discussion and summary see Trebilcock, (1993) p. 13-15. }~ It should be recognised that argument over the loyalty principles should be of degree, as the concept must not be compromised, and needs to be protected (even if they come at the price of a degree of uncertainty), especially against particularly strong parties who are most likely to argue against their necessity. + +1~ Problems beyond uniform texts + +2~ In support of four objectives + +In the formulation of many international legal texts a pragmatic approach was taken. Formulating legislators from different States developed solutions based on suitable responses to factual example circumstances. This was done, successfully, with a view to avoiding arguments over alternative legal semantics and methodologies. However, having arrived at a common text, what then? Several issues are raised by asking the question, given that differences of interpretation can arise and become entrenched, by what means is it possible to foster a sustainable drive towards the uniform application of shared texts? Four principles appear to be desirable and should insofar as it is possible be pursued together: *(i)* the promotion of certainty and predictability; *(ii)* the promotion of uniformity of application; *(iii)* the protection of democratic ideals and ensuring of jurisprudential deliberation, and; *(iv)* the retention of efficiency. + +2~ Improving the predictability, certainty and uniform application of international and transnational law + +The key to the (efficient) achievement of greater certainty and predictability in an international and/or transnational commercial law regime is through the uniform application of shared texts that make up this regime. + +Obviously a distinction is to be made between transnational predictability in application, that is "uniform application", and predictability at a domestic level. Where the "uniform law" is applied by a municipal court of State "A" that looks first to its domestic writings, there may be a clear - predictable manner of application, even if not in the spirit of the "Convention". Another State "B" may apply the uniform law in a different way that is equally predictable, being perfectly consistent internally. This however defeats much of the purpose of the uniform law. + +A first step is for municipal courts to accept the /{UN Convention on the Law of Treaties 1969}/ (in force 1980) as a codification of existing public international law with regard to the interpretation of treaties.~{ This is the position in English law see Lord Diplock in Fothergill v Monarch Airlines [1981], A.C. 251, 282 or see http://www.jus.uio.no/lm/england.fothergill.v.monarch.airlines.hl.1980/2_diplock.html also Mann (London, 1983) at p. 379. The relevant articles on interpretation are Article 31 and 32. }~ A potentially fundamental step towards the achievement of uniform application is through the conscientious following of the admonitions of the interpretation clauses of modern conventions, rules and principles~{ Examples: The CISG, Article 7; The PICC, Article 1.6; PECL Article 1.106; /{UN Convention on the Carriage of Goods by Sea (The Hamburg Rules) 1978}/, Article 3; /{UN Convention on the Limitation Period in the International Sale of Goods 1974}/ and /{1978}/, Article 7; /{UN Model Law on Electronic Commerce 1996}/, Article 3; /{UNIDROIT Convention on International Factoring 1988}/, Article 4; /{UNIDROIT Convention on International Financial Leasing 1988}/, Article 6; also /{EC Convention on the Law Applicable to Contractual Obligations 1980}/, Article 18. }~ to take into account their international character and the need to promote uniformity in their application,~{ For an online collection of articles see the Pace CISG Database http://www.cisg.law.pace.edu/cisg/text/e-text-07.html and amongst the many other articles do not miss Michael Van Alstine /{Dynamic Treaty Interpretation}/ 146 /{University of Pennsylvania Law Review}/ (1998) 687-793. }~ together with all this implies.~{ Such as the CISG provision on interpretation - Article 7. }~ However, the problems of uniform application, being embedded in differences of legal methodology, go beyond the agreement of a common text, and superficial glances at the works of other legal municipalities. These include questions related to sources of authority and technique applied in developing valid legal argument. Problems with sources include differences in authority and weight given to: *(a)* legislative history; *(b)* rulings domestic and international; *(c)* official and other commentaries; *(d)* scholarly writings. There should be an ongoing discussion of legal methodology to determine the methods best suited to addressing the problem of achieving greater certainty, predictability and uniformity in the application of shared international legal texts. With regard to information sharing, again the technology associated with the Net offers potential solutions. + +2~ The Net and information sharing through transnational databases + +The Net has been a godsend permitting the collection and dissemination of information on international law. With the best intentions to live up to admonitions to "to take into account their international character and the need to promote uniformity in their application" of "ScIL" and "IoL", a difficulty has been in knowing what has been written and decided elsewhere. In discussing solutions, Professor Honnold in /{"Uniform Words and Uniform Application" }/~{ Based on the CISG, and inputs from several professors from different legal jurisdictions, on the problems of achieving the uniform application of the text across different legal municipalities. J. Honnold, /{Uniform words and uniform applications. Uniform Words and Uniform Application: The 1980 Sales Convention and International Juridical Practice}/. /{Einheitliches Kaufrecht und nationales Obligationenrecht. Referate Diskussionen der Fachtagung}/. am 16/17-2-1987. Hrsg. von P. Schlechtriem. Baden-Baden, Nomos, 1987. p. 115-147, at p. 127-128. }~ suggests the following: "General Access to Case-Law and Bibliographic Material: The development of a homogenous body of law under the Convention depends on channels for the collection and sharing of judicial decisions and bibliographic material so that experience in each country can be evaluated and followed or rejected in other jurisdictions." Honnold then goes on to discuss "the need for an international clearing-house to collect and disseminate experience on the Convention" the need for which, he writes there is general agreement. He also discusses information-gathering methods through the use of national reporters. He poses the question "Will these channels be adequate? ..." + +The Net, offering inexpensive ways to build databases and to provide global access to information, provides an opportunity to address these problems that was not previously available. The Net extends the reach of the admonitions of the interpretation clauses. Providing the medium whereby if a decision or scholarly writing exists on a particular article or provision of a Convention, anywhere in the world, it will be readily available. Whether or not a national court or arbitration tribunal chooses to follow their example, they should be aware of it. Whatever a national court decides will also become internationally known, and will add to the body of experience on the Convention.~{ Nor is it particularly difficult to set into motion the placement of such information on the Net. With each interested participant publishing for their own interest, the Net could provide the key resources to be utilised in the harmonisation and reaching of common understandings of solutions and uniform application of legal texts. Works from all countries would be available. }~ + +Such a library would be of interest to the institution promulgating the text, governments, practitioners and researchers alike. It could place at your fingertips: *(a)* Convention texts. *(b)* Implementation details of contracting States. *(c)* The legislative history. *(d)* Decisions generated by the convention around the world (court and arbitral where possible). *(e)* The official and other commentaries. *(f)* Scholarly writings on the Convention. *(g)* Bibliographies of scholarly writings. *(h)* Monographs and textbooks. *(i)* Student study material collections. *(j)* Information on promotional activities, lectures - moots etc. *(k)* Discussion groups/ mailing groups and other more interactive features. + +With respect to the CISG such databases are already being maintained.~{ Primary amongst them Pace University, Institute of International Commercial Law, CISG Database http://www.cisg.law.pace.edu/ which provides secondary support for the CISG, including providing a free on-line database of the legislative history, academic writings, and case-law on the CISG and additional material with regard to PICC and PECL insofar as they may supplement the CISG. Furthermore, the Pace CISG Project, networks with the several other existing Net based "autonomous" CISG projects. UNCITRAL under Secretary Gerold Herrmann, has its own database through which it distributes its case law materials collected from national reporters (CLOUT). }~ + +The database by ensuring the availability of international materials, used in conjunction with legal practice, helps to support the fore-named four principles. That of efficiency is enhanced especially if there is a single source that can be searched for the information required. + +The major obstacle that remains to being confident of this as the great and free panacea that it should be is the cost of translation of texts. + +2~ Judicial minimalism promotes democratic jurisprudential deliberation + +How to protect liberal democratic ideals and ensure international jurisprudential deliberation? Looking at judicial method, where court decisions are looked to for guidance, liberal democratic ideals and international jurisprudential deliberation are fostered by a judicial minimalist approach. + +For those of us with a common law background, and others who pay special attention to cases as you are invited to by interpretation clauses, there is scope for discussion as to the most appropriate approach to be taken with regard to judicial decisions. US judge Cass Sunstein suggestion of judicial minimalism~{ Cass R. Sunstein, /{One Case at a Time - Judicial Minimalism on the Supreme Court}/ (1999) }~ which despite its being developed in a different context~{ His analysis is developed based largely on "hard" constitutional cases of the U.S. }~ is attractive in that it is suited to a liberal democracy in ensuring democratic jurisprudential deliberation. It maintains discussion, debate, and allows for adjustment as appropriate and the gradual development of a common understanding of issues. Much as one may admire farsighted and far-reaching decisions and expositions, there is less chance with the minimalist approach of the (dogmatic) imposition of particular values. Whilst information sharing offers the possibility of the percolation of good ideas.~{ D. Stauffer, /{Introduction to Percolation Theory}/ (London, 1985). Percolation represents the sudden dramatic expansion of a common idea or ideas thought he reaching of a critical level/mass in the rapid recognition of their power and the making of further interconnections. An epidemic like infection of ideas. Not quite the way we are used to the progression of ideas within a conservative tradition. }~ Much as we admire the integrity of Dworkin's Hercules,~{ Ronald Dworkin, /{Laws Empire}/ (Harvard, 1986); /{Hard Cases in Harvard Law Review}/ (1988). }~ that he can consistently deliver single solutions suitable across such disparate socio-economic cultures is questionable. In examining the situation his own "integrity" would likely give him pause and prevent him from dictating that he can.~{ Hercules was created for U.S. Federal Cases and the community represented by the U.S. }~ This position is maintained as a general principle across international commercial law, despite private (as opposed to public) international commercial law not being an area of particularly "hard" cases of principle, and; despite private international commercial law being an area in which over a long history it has been demonstrated that lawyers are able to talk a common language to make themselves and their concepts (which are not dissimilar) understood by each other.~{ In 1966, a time when there were greater differences in the legal systems of States comprising the world economy Clive Schmitthoff was able to comment that:
"22. The similarity of the law of international trade transcends the division of the world between countries of free enterprise and countries of centrally planned economy, and between the legal families of the civil law of Roman inspiration and the common law of English tradition. As a Polish scholar observed, "the law of external trade of the countries of planned economy does not differ in its fundamental principles from the law of external trade of other countries, such as e.g., Austria or Switzerland. Consequently, international trade law specialists of all countries have found without difficulty that they speak a 'common language'
23. The reason for this universal similarity of the law of international trade is that this branch of law is based on three fundamental propositions: first, that the parties are free, subject to limitations imposed by the national laws, to contract on whatever terms they are able to agree (principle of the autonomy of the parties' will); secondly, that once the parties have entered into a contract, that contract must be faithfully fulfilled (pacta sunt servanda) and only in very exceptional circumstances does the law excuse a party from performing his obligations, viz., if force majeure or frustration can be established; and, thirdly that arbitration is widely used in international trade for the settlement of disputes, and the awards of arbitration tribunals command far-reaching international recognition and are often capable of enforcement abroad."
/{Report of the Secretary-General of the United Nations, Progressive Development of the Law of International Trade}/ (1966). Report prepared for the UN by C. Schmitthoff. }~ + +2~ Non-binding interpretative councils and their co-ordinating guides can provide a focal point for the convergence of ideas - certainty, predictability, and efficiency + +A respected central guiding body can provide a guiding influence with respect to: *(a)* the uniform application of texts; *(b)* information management control. Given the growing mass of writing on common legal texts - academic and by way of decisions, we are faced with an information management problem.~{ Future if not current. }~ + +Supra-national interpretative councils have been called for previously~{ /{UNCITRAL Secretariat}/ (1992) p. 253. Proposed by David (France) at the second UNCITRAL Congress and on a later occasion by Farnsworth (USA). To date the political will backed by the financing for such an organ has not been forthcoming. In 1992 the UNCITRAL Secretariat concluded that "probably the time has not yet come". Suggested also by Louis Sono in /{Uniform laws require uniform interpretation: proposals for an international tribunal to interpret uniform legal texts}/ (1992) 25th UNCITRAL Congress, pp. 50-54. Drobnig, /{Observations in Uniform Law in Practice}/ at p. 306. }~ and have for various reasons been regarded impracticable to implement including problems associated with getting States to formally agree upon such a body with binding authority. + +However it is not necessary to go this route. In relation to "IoL" in such forms as the PICC and PECL it is possible for the promulgators themselves,~{ UNIDROIT and the EU }~ to update and clarify the accompanying commentary of the rules and principles, and to extend their work, through having councils with the necessary delegated powers. In relation to the CISG it is possible to do something similar of a non-binding nature, through the production of an updated commentary by an interpretive council (that could try to play the role of Hercules).~{ For references on interpretation of the CISG by a supranational committee of experts or council of "wise men" see Bonell, /{Proposal for the Establishment of a Permanent Editorial Board for the Vienna Sales Convention}/ in /{International Uniform Law in Practice/ Le droit uniforme international dans la practique [Acts and Proceedings of the 3rd Congress on Private Law held by the International Institute for the Unification of Private Law}/ (Rome, 1987)], (New York, 1988) pp. 241-244 }~ With respect, despite some expressed reservations, it is not true that it would have no more authority than a single author writing on the subject. A suitable non-binding interpretative council would provide a focal point for the convergence of ideas. Given the principle of ensuring democratic jurisprudential deliberation, that such a council would be advisory only (except perhaps on the contracting parties election) would be one of its more attractive features, as it would ensure continued debate and development. + +2~ Capacity Building + +_1 "... one should create awareness about the fact that an international contract or transaction is not naturally rooted in one particular domestic law, and that its international specifics are best catered for in a uniform law."~{ UNCITRAL Secretariat (1992) p. 255. }~ + +_{/{Capacity building}/}_ - raising awareness, providing education, creating a new generation of lawyers versed in a relatively new paradigm. Capacity building in international and transnational law, is something relevant institutions including arbitration institutions; the business community, and; far sighted States, should be interested in promoting. Finding means to transcend national boundaries is also to continue in the tradition of seeking the means to break down barriers to legal communication and understanding. However, while the business community seeks and requires greater uniformity in their business relations, there has paradoxically, at a national level, been a trend towards a nationalisation of contract law, and a regionalisation of business practice.~{ Erich Schanze, /{New Directions in Business Research}/ in Børge Dahl & Ruth Nielsen (ed.), /{New Directions in Contract Research}/ (Copenhagen, 1996) p. 62. }~ + +As an example, Pace University, Institute of International Commercial Law, plays a prominent role with regard to capacity building in relation to the CISG and PICC. Apart from the previously mentioned /{CISG Database}/, Pace University organise a large annual moot on the CISG~{ See http://www.cisg.law.pace.edu/vis.html }~ this year involving students of 79 universities from 28 countries, and respected arbitrators from the word over. Within the moot the finding of solutions based on PICC where the CISG is silent, is encouraged. Pace University also organise an essay competition~{ See http://www.cisg.law.pace.edu/cisg/text/essay.html }~ on the CISG and/or the PICC, which next year is to be expanded to include the PECL as a further option. + +1~ Marketing of transnational solutions + +Certain aspects of the Net/web may already be passé, but did you recognise it for what it was, or might become, when it arrived? + +As uniform law and transnational solutions are in competition with municipal approaches, to be successful a certain amount of marketing is necessary and may be effective. The approach should involve ensuring the concept of what they seek to achieve is firmly implanted in the business, legal and academic communities, and through engaging the business community and arbitration institutions, in capacity building and developing a new generation of lawyers. Feedback from the business community, and arbitrators will also prove invaluable. Whilst it is likely that the business community will immediately be able to recognise their potential advantages, it is less certain that they will find the support of the legal community. The normal reasons would be similar to those usually cited as being the primary constraints on its development "conservatism, routine, prejudice and inertia" René David. These are problems associated with gaining the initial foothold of acceptability, also associated with the lower part of an exponential growth curve. In addition the legal community may face tensions arising for various reasons including the possibility of an increase in world-wide competition. + +There are old well developed legal traditions with developed infrastructures and roots well established in several countries, that are dependable and known. The question arises why experiment with alternative non-extensively tested regimes? The required sophistication is developed in the centres providing legal services, and it may be argued that there is not the pressing need for unification or for transnational solutions, as the traditional way of contracting provides satisfactorily for the requirements of global commerce. The services required will continue to be easily and readily available from existing centres of skill. English law, to take an example is for various reasons (including perhaps language, familiarity of use, reputation and widespread Commonwealth~{ http://www.thecommonwealth.org/ }~ relations) the premier choice for the law governing international commercial transactions, and is likely to be for the foreseeable future. Utilising the Commonwealth as an example, what the "transnational" law (e.g. CISG) experience illustrates however, is that for States there may be greater advantage to be gained from participation in a horizontally shared area of commercial law, than from retaining a traditional vertically integrated commercial law system, based largely for example on the English legal system. + +Borrowing a term from the information technology sector, it is essential to guard against FUD (fear, uncertainty and doubt) with regard to the viability of new and/or competing transnational solutions, that may be spread by their detractors, and promptly, in the manner required by the free market, address any real problems that are discerned. + +1~ Tools in future development + +An attempt should be made by the legal profession to be more contemporary and to keep up to date with developments in technology and the sciences, and to adopt effective tools where suitable to achieve their goals. Technology one way or another is likely to encroach further upon law and the way we design it. + +Science works across cultures and is aspired to by most nations as being responsible for the phenomenal success of technology (both are similarly associated with globalisation). Science is extending its scope to (more confidently) tackle complex systems. It would not hurt to be more familiar with relevant scientific concepts and terminology. Certainly lawyers across the globe, myself included, would also benefit much in their conceptual reasoning from an early dose of the philosophy of science,~{ An excellent approachable introduction is provided by A.F. Chalmers /{What is this thing called Science?}/ (1978, Third Edition 1999). }~ what better than Karl Popper on scientific discovery and the role of "falsification" and value of predictive probity.~{ Karl R. Popper /{The Logic of Scientific Discovery}/ (1959). }~ And certainly Thomas Kuhn on scientific advancement and "paradigm shifts"~{ Thomas S. Kuhn /{The Structure of Scientific Revolutions}/ (1962, 3rd Edition 1976). }~ has its place. Having mentioned Karl Popper, it would not be unwise to go further (outside the realms of philosophy of science) to study his defence of democracy in both volumes of /{Open Society and Its Enemies}/.~{ Karl R. Popper /{The Open Society and Its Enemies: Volume 1, Plato}/ (1945) and /{The Open Society and Its Enemies: Volume 2, Hegel & Marx}/. (1945) }~ + +Less ambitiously there are several tools not traditionally in the lawyers set, that may assist in transnational infrastructure modelling. These include further exploration and development of the potential of tools, including to suggest a few by way of example: flow charts, fuzzy thinking, "intelligent" electronic agents and Net collaborations. + +In the early 1990's I was introduced to a quantity surveyor and engineer who had reduced the /{FIDIC Red Book}/~{ FIDIC is the International Federation of Consulting Engineers http://www.fidic.com/ }~ to over a hundred pages of intricate flow charts (decision trees), printed horizontally on roughly A4 sized sheets. He was employed by a Norwegian construction firm, who insisted that based on past experience, they knew that he could, using his charts, consistently arrive at answers to their questions in a day, that law firms took weeks to produce. Flow charts can be used to show interrelationships and dependencies, in order to navigate the implications of a set of rules more quickly. They may also be used more pro-actively (and /{ex ante}/ rather than /{ex post}/) in formulating texts, to avoid unnecessary complexity and to arrive at more practical, efficient and elegant solutions. + +Explore such concepts as "fuzzy thinking"~{ Concept originally developed by Lotfi Zadeh /{Fuzzy Sets}/ Information Control 8 (1965) pp 338-353. For introductions see Daniel McNeill and Paul Freiberger /{Fuzzy Logic: The Revolutionary Computer Technology that is Changing our World}/ (1993); Bart Kosko Fuzzy Thinking (1993); Earl Cox The Fuzzy Systems Handbook (New York, 2nd ed. 1999). Perhaps to the uninitiated an unfortunate choice of name, as fuzzy logic and fuzzy set theory is more precise than classical logic and set theory, which comprise a subset of that which is fuzzy (representing those instances where membership is 0% or 100%). The statement is not entirely without controversy, in suggesting the possibility that classical thinking may be subsumed within the realms of an unfamiliar conceptual paradigm, that is to take hold of the future thinking. In the engineering field much pioneer work on fuzzy rule based systems was done at Queen Mary College by Ebrahim Mamdani in the early and mid-1970s. Time will tell. }~ including fuzzy logic, fuzzy set theory, and fuzzy systems modelling, of which classical logic and set theory are subsets. Both by way of analogy and as a tool fuzzy concepts are better at coping with complexity and map more closely to judicial thinking and argument in the application of principles and rules. Fuzzy theory provides a method for analysing and modelling principle and rule based systems, even where conflicting principles may apply permitting /{inter alia}/ working with competing principles and the contextual assignment of precision to terms such as "reasonableness". Fuzzy concepts should be explored in expert systems, and in future law. Problems of scaling associated with multiple decision trees do not prevent useful applications, and structured solutions. The analysis assists in discerning what lawyers are involved with. + +"Intelligent" electronic agents can be expected both to gather information on behalf of the business community and lawyers. In future electronic agents are likely to be employed to identify and bring to the attention of their principals "invitations to treat" or offers worthy of further investigation. In some cases they will be developed and relied upon as electronic legal agents, operating under a programmed mandate and vested with the authority to enter certain contracts on behalf of their principals. Such mandate would include choice of law upon which to contract, and the scenario could be assisted by transnational contract solutions (and catered for in the design of "future law"). + +Another area of technology helping solve legal problems relates to various types of global register and transaction centres. Amongst them property registers being an obvious example, including patents and moveable property. Bolero providing an example of how electronic documents can be centrally brokered on behalf of trading parties. + +Primary law should be available on the Net free, and this applies also to "IoL" and the static material required for their interpretation. This should be the policy adopted by all institutions involved in contributing to the transnational legal infrastructure. Where possible larger databases also should be developed and shared. The Net has reduced the cost of dissemination of material, to a level infinitesimally lower than before. Universities now can and should play a more active role. Suitable funding arrangements should be explored that do not result in proprietary systems or the forwarding of specific lobby interests. In hard-copy to promote uniform standards, institutions should also strive to have their materials available at a reasonable price. Many appear to be unacceptably expensive given the need for their promotion and capacity building, amongst students, and across diverse States. + +Follow the open standards and community standards debate in relation to the development of technology standards and technology infrastructure tools - including operating systems,~{ See for example /{Open Sources : Voices from the Open Source Revolution - The Open Source Story}/ http://www.oreilly.com/catalog/opensources/book/toc.html }~ to discover what if anything it might suggest for the future development of law standards. + +1~ As an aside, a word of caution + +I end with an arguably gratuitous observation, by way of a reminder and general warning. Gratuitous in the context of this paper because the areas focused upon~{ Sale of goods (CISG), contract rules and principles (PICC), related Arbitration, and the promotion of certain egalitarian ideals. }~ were somewhat deliberately selected to fall outside the more contentious and "politically" problematic areas related to globalisation, economics, technology, law and politics.~{ It is not as evident in the area of private international commercial contract law the chosen focus for this paper, but appears repeatedly in relation to other areas and issues arising out of the economics, technology, law nexus. }~ Gratuitous also because there will be no attempt to concretise or exemplify the possibility suggested. + +Fortunately, we are not (necessarily) talking about a zero sum game, however, it is necessary to be able to distinguish and recognise that which may harm. International commerce/trade is competitive, and by its nature not benign, even if it results in an overall improvement in the economic lot of the peoples of our planet. "Neutral tests" such as Kaldor-Hicks efficiency, do not require that your interests are benefited one iota, just that whilst those of others are improved, yours are not made worse. If the measure adopted is overall benefit, it is even more possible that an overall gain may result where your interests are adversely affected. The more so if you have little, and those that gain, gain much. Furthermore such "tests" are based on assumptions, which at best are approximations of reality (e.g. that of zero transaction costs, where in fact not only are they not, but they are frequently proportionately higher for the economically weak). At worst they may be manipulated /{ex ante}/ with knowledge of their implications (e.g. engineering to ensure actual or relative~{ Low fixed costs have a "regressive" effect }~ asymmetrical transaction cost). It is important to be careful in a wide range of circumstances related to various aspects of the modelling of the infrastructure for international commerce that have an impact on the allocation of rights and obligations, and especially the allocation of resources, including various types of intellectual property rights. Ask what is the objective and justification for the protection? How well is the objective met? Are there other consequential effects? Are there other objectives that are worthy of protection? Could the stated objective(s) be achieved in a better way? + +Within a system are those who benefit from the way it has been, that may oppose change as resulting in loss to them or uncertainty of their continued privilege. For a stable system to initially arise that favours such a Select Set, does not require the conscious manipulation of conditions by the Select Set. Rather it requires that from the system (set) in place the Select Set emerges as beneficiary. Subsequently the Select Set having become established as favoured and empowered by their status as beneficiary, will seek to do what it can, to influence circumstances to ensure their continued beneficial status. That is, to keep the system operating to their advantage (or tune it to work even better towards this end), usually with little regard to the conditions resulting to other members of the system. Often this will be a question of degree, and the original purpose, or an alternative "neutral" argument, is likely to be used to justify the arrangement. The objective from the perspective of the Select Set is fixed; the means at their disposal may vary. Complexity is not required for such situations to arise, but having done so subsequent plays by the Select Set tend towards complexity. Furthermore, moves in the interest of the Select Set are more easily obscured/disguised in a complex system. Limited access to information and knowledge are devastating handicaps without which change cannot be contemplated let alone negotiated. Frequently, having information and knowledge are not enough. The protection of self-interest is an endemic part of our system, with the system repeatedly being co-opted to the purposes of those that are able to manipulate it. Membership over time is not static, for example, yesterday's "copycat nations" are today's innovators, and keen to protect their intellectual property. Which also illustrates the point that what it may take to set success in motion, may not be the same as that which is preferred to sustain it. Whether these observations appear to be self-evident and/or abstract and out of place with regard to this paper, they have far reaching implications repeatedly observable within the law, technology, and commerce (politics) nexus. Even if not arising much in the context of the selected material for this paper, their mention is justified by way of warning. Suitable examples would easily illustrate how politics arises inescapably as an emergent property from the nexus of commerce, technology, and law.~{ In such circumstances either economics or law on their own would be sufficient to result in politics arising as an emergent property. }~ + +%% SiSU markup sample Notes: +% SiSU http://www.jus.uio.no/sisu +% SiSU markup for 0.16 and later: +% 0.20.4 header 0~links +% 0.22 may drop image dimensions (rmagick) +% 0.23 utf-8 ß +% 0.38 or later, may use alternative notation for headers, e.g. @title: (instead of 0~title) +% 0.38 document structure alternative markup, experimental (rad) A,B,C,1,2,3 maps to 1,2,3,4,5,6 +% 0.42 * type endnotes, used e.g. in relation to author +% 0.51 skins changed, markup unchanged +% 0.52 declared document type identifier at start of text +% Output: http://www.jus.uio.no/sisu/autonomy_markup0/sisu_manifest.html +% SiSU 0.38 experimental (alternative structure) markup used for this document +% (compare 0.36 standard markup in sisu-examples autonomy_markup4.sst) diff --git a/data/v3/samples/content.cory_doctorow.sst b/data/v3/samples/content.cory_doctorow.sst new file mode 100644 index 0000000..88d90cf --- /dev/null +++ b/data/v3/samples/content.cory_doctorow.sst @@ -0,0 +1,2335 @@ +% SiSU 2.0 + +@title: CONTENT + :subtitle: Selected Essays on Technology, Creativity, Copyright and the Future of the Future + +@creator: + :author: Doctorow, Cory |email doctorow@craphound.com + +@date: + :published: 2008-09 + +@rights: + :copyright: Copyright (C) Cory Doctorow, 2008. + :license: This entire work (with the exception of the introduction by John Perry Barlow) is copyright 2008 by Cory Doctorow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved.
The introduction is copyright 2008 by John Perry Barlow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved. + +@classify: + :subject: Selected Essays + :topic_register: SiSU:markup sample:book;copyright;content;creative commons;intellectual property:content;book:subject:culture|copyright|society|content|social aspects of technology;culture;society;technology:social aspects + :oclc: 268676051 + :isbn: 9781892391810 + +@make: + :num_top: 1 + :breaks: break=1 + :skin: skin_content + :emphasis: italics + +@links: { CONTENT }http://craphound.com/content/ + { CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow + {@ Wikipedia }http://en.wikipedia.org/wiki/Cory_Doctorow + {@ Amazon.com}http://www.amazon.com/Content-Selected-Technology-Creativity-Copyright/dp/1892391813 + {@ Barnes & Noble}http://search.barnesandnoble.com/Content/Cory-Doctorow/e/9781892391810/?itm=1&USRI=content+cory+doctorow + {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow + { Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + { Free Culture, Lawrence Lessig @ SiSU }http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + { The Wealth of Networks, Yochai Benkler @ SiSU }http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + { Viral Spiral, David Bollier@ SiSU }http://www.jus.uio.no/sisu/viral_spiral.david_bollier + { Democratizing Innovation, Eric von Hippel @ SiSU }http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + { Two Bits, Christopher Kelty @ SiSU }http://www.jus.uio.no/sisu/two_bits.christopher_kelty + { Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU }http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + +:A~ @title @author + +1~cc- A word about this downloadable file: ~# + +I've been releasing my books online for free since my first novel, Down and Out in the Magic Kingdom, came out in 2003, and with every one of those books, I've included a little essay explaining why I do this sort of thing. ~# + +I was tempted to write another one of these essays for this collection, but then it hit me: *{this is a collection of essays that are largely concerned with exactly this subject}*. ~# + +You see, I don't just write essays about copyright to serve as forewards to my books: I write them for magazine,s, newspapers, and websites -- I write speeches on the subject for audiences of every description and in every nation. And finally, here, I've collected my favorites, the closest I've ever come to a Comprehensive Doctorow Manifesto. ~# + +So I'm going to skip the foreword this time around: the *{whole book}* is my explanation for why I'm giving it away for free online. ~# + +If you like this book and you want to thank me, here's what I'd ask you to do, in order of preference: ~# + +_* Buy a copy: http://craphound.com/content/buy ~# + +_* Donate a copy to a school or library: http://craphound.com/content/donate ~# + +_* Send the ebook to five friends and tell them why you liked it ~# + +_* Convert the ebook to a new file-format (see the download page for more) ~# + +Now, on to the book! ~# + +% $$$$ + +% Copyright notice: + +% This entire work (with the exception of the introduction by John Perry Barlow) is copyright 2008 by Cory Doctorow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved. + +% The introduction is copyright 2008 by John Perry Barlow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved. + +% $$$$ + +1~ha- Publication history and acknowledgments: ~# + +Introductio: 2008, John Perry Barlow ~# + +Microsoft Research DRM Talk (This talk was originally given to Microsoft's Research Group and other interested parties from within the company at their Redmond offices on June 17, 2004.) ~# + +The DRM Sausage Factory (Originally published as "A Behind-The-Scenes Look At How DRM Becomes Law," InformationWeek, July 11, 2007) ~# + +Happy Meal Toys versus Copyright: How America chose Hollywood and Wal-Mart, and why it's doomed us, and how we might survive anyway (Originally published as "How Hollywood, Congress, And DRM Are Beating Up The American Economy," InformationWeek, June 11, 2007) ~# + +Why Is Hollywood Making A Sequel To The Napster Wars? (Originally published in InformationWeek, August 14, 2007) ~# + +You DO Like Reading Off a Computer Screen (Originally published in Locus Magazine, March 2007) ~# + +How Do You Protect Artists? (Originally published in The Guardian as "Online censorship hurts us all," Tuesday, Oct 2, 2007) ~# + +It's the Information Economy, Stupid (Originally published in The Guardian as "Free data sharing is here to stay," September 18, 2007) ~# + +Downloads Give Amazon Jungle Fever (Originally published in The Guardian, December 11, 2007) ~# + +What's the Most Important Right Creators Have? (Originally published as "How Big Media's Copyright Campaigns Threaten Internet Free Expression," InformationWeek, November 5, 2007) ~# + +Giving it Away (Originally published on Forbes.com, December 2006) ~# + +Science Fiction is the Only Literature People Care Enough About to Steal on the Internet (Originally published in Locus Magazine, July 2006) ~# + +How Copyright Broke (Originally published in Locus Magazine, September, 2006) ~# + +In Praise of Fanfic (Originally published in Locus Magazine, May 2007) ~# + +Metacrap: Putting the torch to seven straw-men of the meta-utopia (Self-published, 26 August 2001) ~# + +Amish for QWERTY (Originally published on the O'Reilly Network, 07/09/2003, http://www.oreillynet.com/pub/a/wireless/2003/07/09/amish_qwerty.html) ~# + +Ebooks: Neither E, Nor Books (Paper for the O'Reilly Emerging Technologies Conference, San Diego, February 12, 2004) ~# + +Free(konomic) E-books (Originally published in Locus Magazine, September 2007) ~# + +The Progressive Apocalypse and Other Futurismic Delights (Originally published in Locus Magazine, July 2007) ~# + +When the Singularity is More Than a Literary Device: An Interview with Futurist-Inventor Ray Kurzweil (Originally published in Asimov's Science Fiction Magazine, June 2005) ~# + +Wikipedia: a genuine Hitchhikers' Guide to the Galaxy -- minus the editors (Originally published in The Anthology at the End of the Universe, April 2005) ~# + +Warhol is Turning in His Grave (Originally published in The Guardian, November 13, 2007) ~# + +The Future of Ignoring Things (Originally published on InformationWeek's Internet Evolution, October 3, 2007) ~# + +Facebook's Faceplant (Originally published as "How Your Creepy Ex-Co-Workers Will Kill Facebook," in InformationWeek, November 26, 2007) ~# + +The Future of Internet Immune Systems (Originally published on InformationWeek's Internet Evolution, November 19, 2007) ~# + +All Complex Ecosystems Have Parasites (Paper delivered at the O'Reilly Emerging Technology Conference, San Diego, California, 16 March 2005) ~# + +READ CAREFULLY (Originally published as "Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen" in InformationWeek, February 3, 2007) ~# + +World of Democracycraft (Originally published as "Why Online Games Are Dictatorships," InformationWeek, April 16, 2007) ~# + +Snitchtown (Originally published in Forbes.com, June 2007) ~# + +$$$$ + +1~dedication- Dedication: ~# + +For the founders of the Electronic Frontier Foundation: John Perry Barlow, Mitch Kapor and John Gilmore ~# + +For the staff -- past and present -- of the Electronic Frontier Foundation ~# + +For the supporters of the Electronic Frontier Foundation ~# + +$$$$ + +% 1~ Table of Contents: + +% 1 Introduction by John Perry Barlow + +% 2 Microsoft Research DRM talk + +% 3 The DRM Sausage Factory + +% 4 Happy Meal Toys versus Copyright: How America chose Hollywood and +% Wal-Mart, and why it's doomed us, and how we might survive anyway + +% 5 Why Is Hollywood Making A Sequel To The Napster Wars? + +% 6 You DO Like Reading Off a Computer Screen + +% 7 How Do You Protect Artists? + +% 8 It's the Information Economy, Stupid + +% 9 Downloads Give Amazon Jungle Fever + +% 10 What's the Most Important Right Creators Have? + +% 11 Giving it Away + +% 12 Science Fiction is the Only Literature People Care Enough About to Steal on the Internet + +% 13 How Copyright Broke + +% 14 In Praise of Fanfic + +% 15 Metacrap: Putting the Torch to Seven Straw-Men of the Meta-Utopia + +% 16 Amish for QWERTY + +% 17 Ebooks: Neither E, Nor Books + +% 18 Free(konomic) E-books + +% 19 The Progressive Apocalypse and Other Futurismic Delights + +% 20 When the Singularity is More Than a Literary Device: An Interview with Futurist-Inventor Ray Kurzweil + +% 21 Wikipedia: a genuine Hitchhikers' Guide to the Galaxy -- minus the editors + +% 22 Warhol is Turning in His Grave + +% 23 The Future of Ignoring Things + +% 24 Facebook's Faceplant + +% 25 The Future of Internet Immune Systems + +% 26 All Complex Ecosystems Have Parasites + +% 27 READ CAREFULLY + +% 28 World of Democracycraft + +% 29 Snitchtown + +$$$$ + +1~ Introduction by John Perry Barlow + +San Francisco - Seattle - Vancouver - San Francisco + +Tuesday, April 1, 2008 + +"Content," huh? Ha! Where's the container? + +Perhaps these words appear to you on the pages of a book, a physical object that might be said to have "contained" the thoughts of my friend and co-conspirator Cory Doctorow as they were transported in boxes and trucks all the way from his marvelous mind into yours. If that is so, I will concede that you might be encountering "content". (Actually, if that's the case, I'm delighted on Cory's behalf, since that means that you have also paid him for these thoughts. We still know how to pay creators directly for the works they embed in stuff.) + +But the chances are excellent that you're reading these liquid words as bit-states of light on a computer screen, having taken advantage of his willingness to let you have them in that form for free. In such an instance, what "contains" them? Your hard disk? His? The Internet and all the servers and routers in whose caches the ghosts of their passage might still remain? Your mind? Cory's? + +To me, it doesn't matter. Even if you're reading this from a book, I'm still not convinced that what you have in your hands is its container, or that, even if we agreed on that point, that a little ink in the shape of, say, the visual pattern you're trained to interpret as meaning "a little ink" in whatever font the publisher chooses, is not, as Magritte would remind us, the same thing as a little ink, even though it is. + +Meaning is the issue. If you couldn't read English, this whole book would obviously contain nothing as far as you were concerned. Given that Cory is really cool and interesting, you might be motivated to learn English so that you could read this book, but even then it wouldn't be a container so much as a conduit. + +The real "container" would be process of thought that began when I compressed my notion of what is meant by the word "ink" - which, when it comes to the substances that can be used to make marks on paper, is rather more variable than you might think - and would kind of end when you decompressed it in your own mind as whatever you think it is. + +I know this is getting a bit discursive, but I do have a point. Let me just make it so we can move on. + +I believe, as I've stated before, that information is simultaneously a relationship, an action, and an area of shared mind. What it isn't is a noun. + +Information is not a thing. It isn't an object. It isn't something that, when you sell it or have it stolen, ceases to remain in your possession. It doesn't have a market value that can be objectively determined. It is not, for example, much like a 2004 Ducati ST4S motorcycle, for which I'm presently in the market, and which seems - despite variabilities based on, I must admit, informationally- based conditions like mileage and whether it's been dropped - to have a value that is pretty consistent among the specimens I can find for a sale on the Web. + +Such economic clarity could not be established for anything "in" this book, which you either obtained for free or for whatever price the publisher eventually puts on it. If it's a book you're reading from, then presumably Cory will get paid some percentage of whatever you, or the person who gave it to you, paid for it. + +But I won't. I'm not getting paid to write this forward, neither in royalties nor upfront. I am, however, getting some intangible value, as one generally does whenever he does a favor for a friend. For me, the value being retrieved from going to the trouble of writing these words is not so different from the value you retrieve from reading them. We are both mining a deeply intangible "good," which lies in interacting with The Mind of Cory Doctorow. I mention this because it demonstrates the immeasurable role of relationship as the driving force in an information economy. + +But neither am I creating content at the moment nor are you "consuming" it (since, unlike a hamburger, these words will remain after you're done with them, and, also unlike a hamburger you won't subsequently, wellŠ never mind.) Unlike real content, like the stuff in a shipping container, these words have neither grams nor liters by which one might measure their value. Unlike gasoline, ten bucks worth of this stuff will get some people a lot further than others, depending on their interest and my eloquence, neither of which can be quantified. + +It's this simple: the new meaning of the word "content," is plain wrong. In fact, it is intentionally wrong. It's a usage that only arose when the institutions that had fattened on their ability to bottle and distribute the genius of human expression began to realize that their containers were melting away, along with their reason to be in business. They started calling it content at exactly the time it ceased to be. Previously they had sold books and records and films, all nouns to be sure. They didn't know what to call the mysterious ghosts of thought that were attached to them. + +Thus, when not applied to something you can put in a bucket (of whatever size), "content" actually represents a plot to make you think that meaning is a thing. It isn't. The only reason they want you to think that it is because they know how to own things, how to give them a value based on weight or quantity, and, more to the point, how to make them artificially scarce in order to increase their value. + +That, and the fact that after a good 25 years of advance warning, they still haven't done much about the Economy of Ideas besides trying to stop it from happening. + +As I get older, I become less and less interested in saying "I told you so." But in this case, I find it hard to resist. Back during the Internet equivalent of the Pleistocene. I wrote a piece for an ancestor of Wired magazine called Wired magazine that was titled, variously, "The Economy of Ideas" or "Wine without Bottles." In this essay, I argued that it would be deucedly difficult to continue to apply the Adam Smithian economic principles regarding the relationship between scarcity and value to any products that could be reproduced and distributed infinitely at zero cost. + +I proposed, moreover, that, to the extent that anything might be scarce in such an economy, it would be attention, and that invisibility would be a bad strategy for increasing attention. That, in other words, familiarity might convey more value to information that scarcity would. + +I did my best to tell the folks in what is now called "The Content Industry" - the institutions that once arose for the useful purpose of conveying creative expression from one mind to many - that this would be a good time to change their economic model. I proposed that copyright had worked largely because it had been difficult, as a practical matter, to make a book or a record or motion picture film spool. + +It was my theory that as soon as all human expression could be reduced into ones and zeros, people would begin to realize what this "stuff" really was and come up with an economic paradigm for rewarding its sources that didn't seem as futile as claiming to own the wind. Organizations would adapt. The law would change. The notion of "intellectual property," itself only about 35 years old, would be chucked immediately onto the magnificent ash-heap of Civilization's idiotic experiments. + +Of course, as we now know, I was wrong. Really wrong. + +As is my almost pathological inclination, I extended them too much credit. I imputed to institutions the same capacities for adaptability and recognition of the obvious that I assume for humans. But institutions, having the legal system a fundamental part of their genetic code, are not so readily ductile. + +This is particularly true in America, where some combination of certainty and control is the actual "deity" before whose altar we worship, and where we have a regular practice of spawning large and inhuman collective organisms that are a kind of meta-parasite. These critters - let's call them publicly-held corporations - may be made out of humans, but they are not human. Given human folly, that characteristic might be semi-ok if they were actually as cold-bloodedly expedient as I once fancied them - yielding only to the will of the markets and the raw self-interest of their shareholders. But no. They are also symbiotically subject to the "religious beliefs" of those humans who feed in their upper elevations. + +Unfortunately, the guys (and they mostly are guys) who've been running The Content Industry since it started to die share something like a doctrinal fundamentalism that has led them to such beliefs as the conviction that there's no difference between listening to a song and shop-lifting a toaster. + +Moreover, they dwell in such a sublime state of denial that they think they are stewarding the creative process as it arises in the creative humans they exploit savagely - knowing, as they do, that a creative human would rather be heard than paid - and that they, a bunch of sated old scoundrels nearing retirement would be able to find technological means for wrapping "containers" around "their" "content" that the adolescent electronic Hezbollah they've inspired by suing their own customers will neither be smart nor motivated enough to shred whatever pathetic digital bottles their lackeys design. + +And so it has been for the last 13 years. The companies that claim the ability to regulate humanity's Right to Know have been tireless in their endeavors to prevent the inevitable. The won most of the legislative battles in the U.S. and abroad, having purchased all the government money could buy. They even won most of the contests in court. They created digital rights management software schemes that behaved rather like computer viruses. + +Indeed, they did about everything they could short of seriously examining the actual economics of the situation - it has never been proven to me that illegal downloads are more like shoplifted goods than viral marketing - or trying to come up with a business model that the market might embrace. + +Had it been left to the stewardship of the usual suspects, there would scarcely be a word or a note online that you didn't have to pay to experience. There would be increasingly little free speech or any consequence, since free speech is not something anyone can own. + +Fortunately there were countervailing forces of all sorts, beginning with the wise folks who designed the Internet in the first place. Then there was something called the Electronic Frontier Foundation which I co-founded, along with Mitch Kapor and John Gilmore, back in 1990. Dedicated to the free exchange of useful information in cyberspace, it seemed at times that I had been right in suggesting then that practically every institution of the Industrial Period would try to crush, or at least own, the Internet. That's a lot of lawyers to have stacked against your cause. + +But we had Cory Doctorow. + +Had nature not provided us with a Cory Doctorow when we needed one, it would have been necessary for us to invent a time machine and go into the future to fetch another like him. That would be about the only place I can imagine finding such a creature. Cory, as you will learn from his various rants "contained" herein was perfectly suited to the task of subduing the dinosaurs of content. + +He's a little like the guerilla plumber Tuttle in the movie Brazil. Armed with a utility belt of improbable gizmos, a wildly over-clocked mind, a keyboard he uses like a verbal machine gun, and, best of all, a dark sense of humor, he'd go forth against massive industrial forces and return grinning, if a little beat up. + +Indeed, many of the essays collected under this dubious title are not only memoirs of his various campaigns but are themselves the very weapons he used in them. Fortunately, he has spared you some of the more sophisticated utilities he employed. He is not battering you with the nerdy technolingo he commands when stacked up against various minutiacrats, but I assure you that he can speak geek with people who, unlike Cory, think they're being pretty social when they're staring at the other person's shoes. + +This was a necessary ability. One of the problems that EFF has to contend with is that even though most of our yet-unborn constituency would agree heartily with our central mission - giving everybody everywhere the right to both address and hear everybody everywhere else - the decisions that will determine the eventual viability of that right are being made now and generally in gatherings invisible to the general public, using terminology, whether technical or legal, that would be the verbal equivalent of chloroform to anyone not conversant with such arcana. + +I've often repeated my belief that the first responsibility of a human being is to be a better ancestor. Thus, it seems fitting that the appearance of this book, which details much of Cory's time with the EFF, coincides with the appearance of his first-born child, about whom he is a shameless sentimental gusher. + +I would like to think that by the time this newest prodigy, Poesy Emmeline Fibonacci Nautilus Taylor Doctorow - you see what I mean about paternal enthusiasm - has reached Cory's age of truly advanced adolescence, the world will have recognized that there are better ways to regulate the economy of mind than pretending that its products are something like pig iron. But even if it hasn't, I am certain that the global human discourse will be less encumbered than it would have been had not Cory Doctorow blessed our current little chunk of space/time with his fierce endeavors. + +And whatever it is that might be "contained" in the following. + +$$$$ + +1~ Microsoft Research DRM Talk + +(This talk was originally given to Microsoft's Research Group and other interested parties from within the company at their Redmond offices on June 17, 2004.) ~# + +Greetings fellow pirates! Arrrrr! + +I'm here today to talk to you about copyright, technology and DRM, I work for the Electronic Frontier Foundation on copyright stuff (mostly), and I live in London. I'm not a lawyer -- I'm a kind of mouthpiece/activist type, though occasionally they shave me and stuff me into my Bar Mitzvah suit and send me to a standards body or the UN to stir up trouble. I spend about three weeks a month on the road doing completely weird stuff like going to Microsoft to talk about DRM. + +I lead a double life: I'm also a science fiction writer. That means I've got a dog in this fight, because I've been dreaming of making my living from writing since I was 12 years old. Admittedly, my IP-based biz isn't as big as yours, but I guarantee you that it's every bit as important to me as yours is to you. + +Here's what I'm here to convince you of: + +1. That DRM systems don't work + +2. That DRM systems are bad for society + +3. That DRM systems are bad for business + +4. That DRM systems are bad for artists + +5. That DRM is a bad business-move for MSFT + +It's a big brief, this talk. Microsoft has sunk a lot of capital into DRM systems, and spent a lot of time sending folks like Martha and Brian and Peter around to various smoke-filled rooms to make sure that Microsoft DRM finds a hospitable home in the future world. Companies like Microsoft steer like old Buicks, and this issue has a lot of forward momentum that will be hard to soak up without driving the engine block back into the driver's compartment. At best I think that Microsoft might convert some of that momentum on DRM into angular momentum, and in so doing, save all our asses. + +Let's dive into it. + +-- + +2~x- 1. DRM systems don't work + +This bit breaks down into two parts: + +1. A quick refresher course in crypto theory + +2. Applying that to DRM + +Cryptography -- secret writing -- is the practice of keeping secrets. It involves three parties: a sender, a receiver and an attacker (actually, there can be more attackers, senders and recipients, but let's keep this simple). We usually call these people Alice, Bob and Carol. + +Let's say we're in the days of the Caesar, the Gallic War. You need to send messages back and forth to your generals, and you'd prefer that the enemy doesn't get hold of them. You can rely on the idea that anyone who intercepts your message is probably illiterate, but that's a tough bet to stake your empire on. You can put your messages into the hands of reliable messengers who'll chew them up and swallow them if captured -- but that doesn't help you if Brad Pitt and his men in skirts skewer him with an arrow before he knows what's hit him. + +So you encipher your message with something like ROT-13, where every character is rotated halfway through the alphabet. They used to do this with non-worksafe material on Usenet, back when anyone on Usenet cared about work-safe-ness -- A would become N, B is O, C is P, and so forth. To decipher, you just add 13 more, so N goes to A, O to B yadda yadda. + +Well, this is pretty lame: as soon as anyone figures out your algorithm, your secret is g0nez0red. + +So if you're Caesar, you spend a lot of time worrying about keeping the existence of your messengers and their payloads secret. Get that? You're Augustus and you need to send a message to Brad without Caceous (a word I'm reliably informed means "cheese-like, or pertaining to cheese") getting his hands on it. You give the message to Diatomaceous, the fleetest runner in the empire, and you encipher it with ROT-13 and send him out of the garrison in the pitchest hour of the night, making sure no one knows that you've sent it out. Caceous has spies everywhere, in the garrison and staked out on the road, and if one of them puts an arrow through Diatomaceous, they'll have their hands on the message, and then if they figure out the cipher, you're b0rked. So the existence of the message is a secret. The cipher is a secret. The ciphertext is a secret. That's a lot of secrets, and the more secrets you've got, the less secure you are, especially if any of those secrets are shared. Shared secrets aren't really all that secret any longer. + +Time passes, stuff happens, and then Tesla invents the radio and Marconi takes credit for it. This is both good news and bad news for crypto: on the one hand, your messages can get to anywhere with a receiver and an antenna, which is great for the brave fifth columnists working behind the enemy lines. On the other hand, anyone with an antenna can listen in on the message, which means that it's no longer practical to keep the existence of the message a secret. Any time Adolf sends a message to Berlin, he can assume Churchill overhears it. + +Which is OK, because now we have computers -- big, bulky primitive mechanical computers, but computers still. Computers are machines for rearranging numbers, and so scientists on both sides engage in a fiendish competition to invent the most cleverest method they can for rearranging numerically represented text so that the other side can't unscramble it. The existence of the message isn't a secret anymore, but the cipher is. + +But this is still too many secrets. If Bobby intercepts one of Adolf's Enigma machines, he can give Churchill all kinds of intelligence. I mean, this was good news for Churchill and us, but bad news for Adolf. And at the end of the day, it's bad news for anyone who wants to keep a secret. + +Enter keys: a cipher that uses a key is still more secure. Even if the cipher is disclosed, even if the ciphertext is intercepted, without the key (or a break), the message is secret. Post-war, this is doubly important as we begin to realize what I think of as Schneier's Law: "any person can invent a security system so clever that she or he can't think of how to break it." This means that the only experimental methodology for discovering if you've made mistakes in your cipher is to tell all the smart people you can about it and ask them to think of ways to break it. Without this critical step, you'll eventually end up living in a fool's paradise, where your attacker has broken your cipher ages ago and is quietly decrypting all her intercepts of your messages, snickering at you. + +Best of all, there's only one secret: the key. And with dual-key crypto it becomes a lot easier for Alice and Bob to keep their keys secret from Carol, even if they've never met. So long as Alice and Bob can keep their keys secret, they can assume that Carol won't gain access to their cleartext messages, even though she has access to the cipher and the ciphertext. Conveniently enough, the keys are the shortest and simplest of the secrets, too: hence even easier to keep away from Carol. Hooray for Bob and Alice. + +Now, let's apply this to DRM. + +In DRM, the attacker is *{also the recipient}*. It's not Alice and Bob and Carol, it's just Alice and Bob. Alice sells Bob a DVD. She sells Bob a DVD player. The DVD has a movie on it -- say, Pirates of the Caribbean -- and it's enciphered with an algorithm called CSS -- Content Scrambling System. The DVD player has a CSS un-scrambler. + +Now, let's take stock of what's a secret here: the cipher is well-known. The ciphertext is most assuredly in enemy hands, arrr. So what? As long as the key is secret from the attacker, we're golden. + +But there's the rub. Alice wants Bob to buy Pirates of the Caribbean from her. Bob will only buy Pirates of the Caribbean if he can descramble the CSS-encrypted VOB -- video object -- on his DVD player. Otherwise, the disc is only useful to Bob as a drinks-coaster. So Alice has to provide Bob -- the attacker -- with the key, the cipher and the ciphertext. + +Hilarity ensues. + +DRM systems are usually broken in minutes, sometimes days. Rarely, months. It's not because the people who think them up are stupid. It's not because the people who break them are smart. It's not because there's a flaw in the algorithms. At the end of the day, all DRM systems share a common vulnerability: they provide their attackers with ciphertext, the cipher and the key. At this point, the secret isn't a secret anymore. + +-- + +2~x- 2. DRM systems are bad for society + +Raise your hand if you're thinking something like, "But DRM doesn't have to be proof against smart attackers, only average individuals! It's like a speedbump!" + +Put your hand down. + +This is a fallacy for two reasons: one technical, and one social. They're both bad for society, though. + +Here's the technical reason: I don't need to be a cracker to break your DRM. I only need to know how to search Google, or Kazaa, or any of the other general-purpose search tools for the cleartext that someone smarter than me has extracted. + +Raise your hand if you're thinking something like, "But NGSCB can solve this problem: we'll lock the secrets up on the logic board and goop it all up with epoxy." + +Put your hand down. + +Raise your hand if you're a co-author of the Darknet paper. + +Everyone in the first group, meet the co-authors of the Darknet paper. This is a paper that says, among other things, that DRM will fail for this very reason. Put your hands down, guys. + +Here's the social reason that DRM fails: keeping an honest user honest is like keeping a tall user tall. DRM vendors tell us that their technology is meant to be proof against average users, not organized criminal gangs like the Ukrainian pirates who stamp out millions of high-quality counterfeits. It's not meant to be proof against sophisticated college kids. It's not meant to be proof against anyone who knows how to edit her registry, or hold down the shift key at the right moment, or use a search engine. At the end of the day, the user DRM is meant to defend against is the most unsophisticated and least capable among us. + +Here's a true story about a user I know who was stopped by DRM. She's smart, college educated, and knows nothing about electronics. She has three kids. She has a DVD in the living room and an old VHS deck in the kids' playroom. One day, she brought home the Toy Story DVD for the kids. That's a substantial investment, and given the generally jam-smeared character of everything the kids get their paws on, she decided to tape the DVD off to VHS and give that to the kids -- that way she could make a fresh VHS copy when the first one went south. She cabled her DVD into her VHS and pressed play on the DVD and record on the VCR and waited. + +Before I go farther, I want us all to stop a moment and marvel at this. Here is someone who is practically technophobic, but who was able to construct a mental model of sufficient accuracy that she figured out that she could connect her cables in the right order and dub her digital disc off to analog tape. I imagine that everyone in this room is the front-line tech support for someone in her or his family: wouldn't it be great if all our non-geek friends and relatives were this clever and imaginative? + +I also want to point out that this is the proverbial honest user. She's not making a copy for the next door neighbors. She's not making a copy and selling it on a blanket on Canal Street. She's not ripping it to her hard-drive, DivX encoding it and putting it in her Kazaa sharepoint. She's doing something *{honest}* -- moving it from one format to another. She's home taping. + +Except she fails. There's a DRM system called Macrovision embedded -- by law -- in every VHS that messes with the vertical blanking interval in the signal and causes any tape made in this fashion to fail. Macrovision can be defeated for about $10 with a gadget readily available on eBay. But our infringer doesn't know that. She's "honest." Technically unsophisticated. Not stupid, mind you -- just naive. + +The Darknet paper addresses this possibility: it even predicts what this person will do in the long run: she'll find out about Kazaa and the next time she wants to get a movie for the kids, she'll download it from the net and burn it for them. + +In order to delay that day for as long as possible, our lawmakers and big rightsholder interests have come up with a disastrous policy called anticircumvention. + +Here's how anticircumvention works: if you put a lock -- an access control -- around a copyrighted work, it is illegal to break that lock. It's illegal to make a tool that breaks that lock. It's illegal to tell someone how to make that tool. One court even held it illegal to tell someone where she can find out how to make that tool. + +Remember Schneier's Law? Anyone can come up with a security system so clever that he can't see its flaws. The only way to find the flaws in security is to disclose the system's workings and invite public feedback. But now we live in a world where any cipher used to fence off a copyrighted work is off-limits to that kind of feedback. That's something that a Princeton engineering prof named Ed Felten and his team discovered when he submitted a paper to an academic conference on the failings in the Secure Digital Music Initiative, a watermarking scheme proposed by the recording industry. The RIAA responded by threatening to sue his ass if he tried it. We fought them because Ed is the kind of client that impact litigators love: unimpeachable and clean-cut and the RIAA folded. Lucky Ed. Maybe the next guy isn't so lucky. + +Matter of fact, the next guy wasn't. Dmitry Sklyarov is a Russian programmer who gave a talk at a hacker con in Vegas on the failings in Adobe's e-book locks. The FBI threw him in the slam for 30 days. He copped a plea, went home to Russia, and the Russian equivalent of the State Department issued a blanket warning to its researchers to stay away from American conferences, since we'd apparently turned into the kind of country where certain equations are illegal. + +Anticircumvention is a powerful tool for people who want to exclude competitors. If you claim that your car engine firmware is a "copyrighted work," you can sue anyone who makes a tool for interfacing with it. That's not just bad news for mechanics -- think of the hotrodders who want to chip their cars to tweak the performance settings. We have companies like Lexmark claiming that their printer cartridges contain copyrighted works -- software that trips an "I am empty" flag when the toner runs out, and have sued a competitor who made a remanufactured cartridge that reset the flag. Even garage-door opener companies have gotten in on the act, claiming that their receivers' firmware are copyrighted works. Copyrighted cars, print carts and garage-door openers: what's next, copyrighted light-fixtures? + +Even in the context of legitimate -- excuse me, "traditional" -- copyrighted works like movies on DVDs, anticircumvention is bad news. Copyright is a delicate balance. It gives creators and their assignees some rights, but it also reserves some rights to the public. For example, an author has no right to prohibit anyone from transcoding his books into assistive formats for the blind. More importantly, though, a creator has a very limited say over what you can do once you lawfully acquire her works. If I buy your book, your painting, or your DVD, it belongs to me. It's my property. Not my "intellectual property" -- a whacky kind of pseudo-property that's swiss-cheesed with exceptions, easements and limitations -- but real, no-fooling, actual tangible *{property}* -- the kind of thing that courts have been managing through property law for centuries. + +But anticirumvention lets rightsholders invent new and exciting copyrights for themselves -- to write private laws without accountability or deliberation -- that expropriate your interest in your physical property to their favor. Region-coded DVDs are an example of this: there's no copyright here or in anywhere I know of that says that an author should be able to control where you enjoy her creative works, once you've paid for them. I can buy a book and throw it in my bag and take it anywhere from Toronto to Timbuktu, and read it wherever I am: I can even buy books in America and bring them to the UK, where the author may have an exclusive distribution deal with a local publisher who sells them for double the US shelf-price. When I'm done with it, I can sell it on or give it away in the UK. Copyright lawyers call this "First Sale," but it may be simpler to think of it as "Capitalism." + +The keys to decrypt a DVD are controlled by an org called DVD-CCA, and they have a bunch of licensing requirements for anyone who gets a key from them. Among these is something called region-coding: if you buy a DVD in France, it'll have a flag set that says, "I am a European DVD." Bring that DVD to America and your DVD player will compare the flag to its list of permitted regions, and if they don't match, it will tell you that it's not allowed to play your disc. + +Remember: there is no copyright that says that an author gets to do this. When we wrote the copyright statutes and granted authors the right to control display, performance, duplication, derivative works, and so forth, we didn't leave out "geography" by accident. That was on-purpose. + +So when your French DVD won't play in America, that's not because it'd be illegal to do so: it's because the studios have invented a business-model and then invented a copyright law to prop it up. The DVD is your property and so is the DVD player, but if you break the region-coding on your disc, you're going to run afoul of anticircumvention. + +That's what happened to Jon Johansen, a Norwegian teenager who wanted to watch French DVDs on his Norwegian DVD player. He and some pals wrote some code to break the CSS so that he could do so. He's a wanted man here in America; in Norway the studios put the local fuzz up to bringing him up on charges of *{unlawfully trespassing upon a computer system}*. When his defense asked, "Which computer has Jon trespassed upon?" the answer was: "His own." + +His no-fooling, real and physical property has been expropriated by the weird, notional, metaphorical intellectual property on his DVD: DRM only works if your record player becomes the property of whomever's records you're playing. + +-- + +2~x- 3. DRM systems are bad for biz + +This is the worst of all the ideas embodied by DRM: that people who make record-players should be able to spec whose records you can listen to, and that people who make records should have a veto over the design of record-players. + +We've never had this principle: in fact, we've always had just the reverse. Think about all the things that can be plugged into a parallel or serial interface, which were never envisioned by their inventors. Our strong economy and rapid innovation are byproducts of the ability of anyone to make anything that plugs into anything else: from the Flo-bee electric razor that snaps onto the end of your vacuum-hose to the octopus spilling out of your car's dashboard lighter socket, standard interfaces that anyone can build for are what makes billionaires out of nerds. + +The courts affirm this again and again. It used to be illegal to plug anything that didn't come from AT&T into your phone-jack. They claimed that this was for the safety of the network, but really it was about propping up this little penny-ante racket that AT&T had in charging you a rental fee for your phone until you'd paid for it a thousand times over. + +When that ban was struck down, it created the market for third-party phone equipment, from talking novelty phones to answering machines to cordless handsets to headsets -- billions of dollars of economic activity that had been suppressed by the closed interface. Note that AT&T was one of the big beneficiaries of this: they *{also}* got into the business of making phone-kit. + +DRM is the software equivalent of these closed hardware interfaces. Robert Scoble is a Softie who has an excellent blog, where he wrote an essay about the best way to protect your investment in the digital music you buy. Should you buy Apple iTunes music, or Microsoft DRM music? Scoble argued that Microsoft's music was a sounder investment, because Microsoft would have more downstream licensees for its proprietary format and therefore you'd have a richer ecosystem of devices to choose from when you were shopping for gizmos to play your virtual records on. + +What a weird idea: that we should evaluate our record-purchases on the basis of which recording company will allow the greatest diversity of record-players to play its discs! That's like telling someone to buy the Betamax instead of the Edison Kinetoscope because Thomas Edison is a crank about licensing his patents; all the while ignoring the world's relentless march to the more open VHS format. + +It's a bad business. DVD is a format where the guy who makes the records gets to design the record players. Ask yourself: how much innovation has there been over the past decade of DVD players? They've gotten cheaper and smaller, but where are the weird and amazing new markets for DVD that were opened up by the VCR? There's a company that's manufacturing the world's first HDD-based DVD jukebox, a thing that holds 100 movies, and they're charging *{$27,000}* for this thing. We're talking about a few thousand dollars' worth of components -- all that other cost is the cost of anticompetition. + +-- + +2~x- 4. DRM systems are bad for artists + +But what of the artist? The hardworking filmmaker, the ink-stained scribbler, the heroin-cured leathery rock-star? We poor slobs of the creative class are everyone's favorite poster-children here: the RIAA and MPAA hold us up and say, "Won't someone please think of the children?" File-sharers say, "Yeah, we're thinking about the artists, but the labels are The Man, who cares what happens to you?" + +To understand what DRM does to artists, you need to understand how copyright and technology interact. Copyright is inherently technological, since the things it addresses -- copying, transmitting, and so on -- are inherently technological. + +The piano roll was the first system for cheaply copying music. It was invented at a time when the dominant form of entertainment in America was getting a talented pianist to come into your living room and pound out some tunes while you sang along. The music industry consisted mostly of sheet-music publishers. + +The player piano was a digital recording and playback system. Piano-roll companies bought sheet music and ripped the notes printed on it into 0s and 1s on a long roll of computer tape, which they sold by the thousands -- the hundreds of thousands -- the millions. They did this without a penny's compensation to the publishers. They were digital music pirates. Arrrr! + +Predictably, the composers and music publishers went nutso. Sousa showed up in Congress to say that: + +group{ + + These talking machines are going to ruin the + artistic development of music in this + country. When I was a boy...in front of every + house in the summer evenings, you would find + young people together singing the songs of + the day or old songs. Today you hear these + infernal machines going night and day. We + will not have a vocal chord left. The vocal + chord will be eliminated by a process of + evolution, as was the tail of man when he + came from the ape. + +}group + +The publishers asked Congress to ban the piano roll and to create a law that said that any new system for reproducing music should be subject to a veto from their industry association. Lucky for us, Congress realized what side of their bread had butter on it and decided not to criminalize the dominant form of entertainment in America. + +But there was the problem of paying artists. The Constitution sets out the purpose of American copyright: to promote the useful arts and sciences. The composers had a credible story that they'd do less composing if they weren't paid for it, so Congress needed a fix. Here's what they came up with: anyone who paid a music publisher two cents would have the right to make one piano roll of any song that publisher published. The publisher couldn't say no, and no one had to hire a lawyer at $200 an hour to argue about whether the payment should be two cents or a nickel. + +This compulsory license is still in place today: when Joe Cocker sings "With a Little Help from My Friends," he pays a fixed fee to the Beatles' publisher and away he goes -- even if Ringo hates the idea. If you ever wondered how Sid Vicious talked Anka into letting him get a crack at "My Way," well, now you know. + +That compulsory license created a world where a thousand times more money was made by a thousand times more creators who made a thousand times more music that reached a thousand times more people. + +This story repeats itself throughout the technological century, every ten or fifteen years. Radio was enabled by a voluntary blanket license -- the music companies got together and asked for a consent decree so that they could offer all their music for a flat fee. Cable TV took a compulsory: the only way cable operators could get their hands on broadcasts was to pirate them and shove them down the wire, and Congress saw fit to legalize this practice rather than screw around with their constituents' TVs. + +Sometimes, the courts and Congress decided to simply take away a copyright -- that's what happened with the VCR. When Sony brought out the VCR in 1976, the studios had already decided what the experience of watching a movie in your living room would look like: they'd licensed out their programming for use on a machine called a Discovision, which played big LP-sized discs that were read-only. Proto-DRM. + +The copyright scholars of the day didn't give the VCR very good odds. Sony argued that their box allowed for a fair use, which is defined as a use that a court rules is a defense against infringement based on four factors: whether the use transforms the work into something new, like a collage; whether it uses all or some of the work; whether the work is artistic or mainly factual; and whether the use undercuts the creator's business-model. + +The Betamax failed on all four fronts: when you time-shifted or duplicated a Hollywood movie off the air, you made a non-transformative use of 100 percent of a creative work in a way that directly undercut the Discovision licensing stream. + +Jack Valenti, the mouthpiece for the motion-picture industry, told Congress in 1982 that the VCR was to the American film industry "as the Boston Strangler is to a woman home alone." + +But the Supreme Court ruled against Hollywood in 1984, when it determined that any device capable of a substantial non-infringing use was legal. In other words, "We don't buy this Boston Strangler business: if your business model can't survive the emergence of this general-purpose tool, it's time to get another business-model or go broke." + +Hollywood found another business model, as the broadcasters had, as the Vaudeville artists had, as the music publishers had, and they made more art that paid more artists and reached a wider audience. + +There's one thing that every new art business-model had in common: it embraced the medium it lived in. + +This is the overweening characteristic of every single successful new medium: it is true to itself. The Luther Bible didn't succeed on the axes that made a hand-copied monk Bible valuable: they were ugly, they weren't in Church Latin, they weren't read aloud by someone who could interpret it for his lay audience, they didn't represent years of devoted-with-a-capital-D labor by someone who had given his life over to God. The thing that made the Luther Bible a success was its scalability: it was more popular because it was more proliferate: all success factors for a new medium pale beside its profligacy. The most successful organisms on earth are those that reproduce the most: bugs and bacteria, nematodes and virii. Reproduction is the best of all survival strategies. + +Piano rolls didn't sound as good as the music of a skilled pianist: but they *{scaled better}*. Radio lacked the social elements of live performance, but more people could build a crystal set and get it aimed correctly than could pack into even the largest Vaudeville house. MP3s don't come with liner notes, they aren't sold to you by a hipper-than-thou record store clerk who can help you make your choice, bad rips and truncated files abound: I once downloaded a twelve-second copy of "Hey Jude" from the original Napster. Yet MP3 is outcompeting the CD. I don't know what to do with CDs anymore: I get them, and they're like the especially nice garment bag they give you at the fancy suit shop: it's nice and you feel like a goof for throwing it out, but Christ, how many of these things can you usefully own? I can put ten thousand songs on my laptop, but a comparable pile of discs, with liner notes and so forth -- that's a liability: it's a piece of my monthly storage-locker costs. + +Here are the two most important things to know about computers and the Internet: + +1. A computer is a machine for rearranging bits + +2. The Internet is a machine for moving bits from one place to another very cheaply and quickly + +Any new medium that takes hold on the Internet and with computers will embrace these two facts, not regret them. A newspaper press is a machine for spitting out cheap and smeary newsprint at speed: if you try to make it output fine art lithos, you'll get junk. If you try to make it output newspapers, you'll get the basis for a free society. + +And so it is with the Internet. At the heyday of Napster, record execs used to show up at conferences and tell everyone that Napster was doomed because no one wanted lossily compressed MP3s with no liner notes and truncated files and misspelled metadata. + +Today we hear ebook publishers tell each other and anyone who'll listen that the barrier to ebooks is screen resolution. It's bollocks, and so is the whole sermonette about how nice a book looks on your bookcase and how nice it smells and how easy it is to slip into the tub. These are obvious and untrue things, like the idea that radio will catch on once they figure out how to sell you hotdogs during the intermission, or that movies will really hit their stride when we can figure out how to bring the actors out for an encore when the film's run out. Or that what the Protestant Reformation really needs is Luther Bibles with facsimile illumination in the margin and a rent-a-priest to read aloud from your personal Word of God. + +New media don't succeed because they're like the old media, only better: they succeed because they're worse than the old media at the stuff the old media is good at, and better at the stuff the old media are bad at. Books are good at being paperwhite, high-resolution, low-infrastructure, cheap and disposable. Ebooks are good at being everywhere in the world at the same time for free in a form that is so malleable that you can just pastebomb it into your IM session or turn it into a page-a-day mailing list. + +The only really successful epublishing -- I mean, hundreds of thousands, millions of copies distributed and read -- is the bookwarez scene, where scanned-and-OCR'd books are distributed on the darknet. The only legit publishers with any success at epublishing are the ones whose books cross the Internet without technological fetter: publishers like Baen Books and my own, Tor, who are making some or all of their catalogs available in ASCII and HTML and PDF. + +The hardware-dependent ebooks, the DRM use-and-copy-restricted ebooks, they're cratering. Sales measured in the tens, sometimes the hundreds. Science fiction is a niche business, but when you're selling copies by the ten, that's not even a business, it's a hobby. + +Every one of you has been riding a curve where you read more and more words off of more and more screens every day through most of your professional careers. It's zero-sum: you've also been reading fewer words off of fewer pages as time went by: the dinosauric executive who prints his email and dictates a reply to his secretary is info-roadkill. + +Today, at this very second, people read words off of screens for every hour that they can find. Your kids stare at their Game Boys until their eyes fall out. Euroteens ring doorbells with their hypertrophied, SMS-twitching thumbs instead of their index fingers. + +Paper books are the packaging that books come in. Cheap printer-binderies like the Internet Bookmobile that can produce a full bleed, four color, glossy cover, printed spine, perfect-bound book in ten minutes for a dollar are the future of paper books: when you need an instance of a paper book, you generate one, or part of one, and pitch it out when you're done. I landed at SEA-TAC on Monday and burned a couple CDs from my music collection to listen to in the rental car. When I drop the car off, I'll leave them behind. Who needs 'em? + +Whenever a new technology has disrupted copyright, we've changed copyright. Copyright isn't an ethical proposition, it's a utilitarian one. There's nothing *{moral}* about paying a composer tuppence for the piano-roll rights, there's nothing *{immoral}* about not paying Hollywood for the right to videotape a movie off your TV. They're just the best way of balancing out so that people's physical property rights in their VCRs and phonographs are respected and so that creators get enough of a dangling carrot to go on making shows and music and books and paintings. + +Technology that disrupts copyright does so because it simplifies and cheapens creation, reproduction and distribution. The existing copyright businesses exploit inefficiencies in the old production, reproduction and distribution system, and they'll be weakened by the new technology. But new technology always gives us more art with a wider reach: that's what tech is *{for}*. + +Tech gives us bigger pies that more artists can get a bite out of. That's been tacitly acknowledged at every stage of the copyfight since the piano roll. When copyright and technology collide, it's copyright that changes. + +Which means that today's copyright -- the thing that DRM nominally props up -- didn't come down off the mountain on two stone tablets. It was created in living memory to accommodate the technical reality created by the inventors of the previous generation. To abandon invention now robs tomorrow's artists of the new businesses and new reach and new audiences that the Internet and the PC can give them. + +-- + +2~x- 5. DRM is a bad business-move for MSFT + +When Sony brought out the VCR, it made a record player that could play Hollywood's records, even if Hollywood didn't like the idea. The industries that grew up on the back of the VCR -- movie rentals, home taping, camcorders, even Bar Mitzvah videographers -- made billions for Sony and its cohort. + +That was good business -- even if Sony lost the Betamax-VHS format wars, the money on the world-with-VCRs table was enough to make up for it. + +But then Sony acquired a relatively tiny entertainment company and it started to massively screw up. When MP3 rolled around and Sony's walkman customers were clamoring for a solid-state MP3 player, Sony let its music business-unit run its show: instead of making a high-capacity MP3 walkman, Sony shipped its Music Clips, low-capacity devices that played brain-damaged DRM formats like Real and OpenMG. They spent good money engineering "features" into these devices that kept their customers from freely moving their music back and forth between their devices. Customers stayed away in droves. + +Today, Sony is dead in the water when it comes to walkmen. The market leaders are poky Singaporean outfits like Creative Labs -- the kind of company that Sony used to crush like a bug, back before it got borged by its entertainment unit -- and PC companies like Apple. + +That's because Sony shipped a product that there was no market demand for. No Sony customer woke up one morning and said, "Damn, I wish Sony would devote some expensive engineering effort in order that I may do less with my music." Presented with an alternative, Sony's customers enthusiastically jumped ship. + +The same thing happened to a lot of people I know who used to rip their CDs to WMA. You guys sold them software that produced smaller, better-sounding rips than the MP3 rippers, but you also fixed it so that the songs you ripped were device-locked to their PCs. What that meant is that when they backed up their music to another hard-drive and reinstalled their OS (something that the spyware and malware wars has made more common than ever), they discovered that after they restored their music that they could no longer play it. The player saw the new OS as a different machine, and locked them out of their own music. + +There is no market demand for this "feature." None of your customers want you to make expensive modifications to your products that make backing up and restoring even harder. And there is no moment when your customers will be less forgiving than the moment that they are recovering from catastrophic technology failures. + +I speak from experience. Because I buy a new Powerbook every ten months, and because I always order the new models the day they're announced, I get a lot of lemons from Apple. That means that I hit Apple's three-iTunes-authorized-computers limit pretty early on and found myself unable to play the hundreds of dollars' worth of iTunes songs I'd bought because one of my authorized machines was a lemon that Apple had broken up for parts, one was in the shop getting fixed by Apple, and one was my mom's computer, 3,000 miles away in Toronto. + +If I had been a less good customer for Apple's hardware, I would have been fine. If I had been a less enthusiastic evangelist for Apple's products -- if I hadn't shown my mom how iTunes Music Store worked -- I would have been fine. If I hadn't bought so much iTunes music that burning it to CD and re-ripping it and re-keying all my metadata was too daunting a task to consider, I would have been fine. + +As it was Apple rewarded my trust, evangelism and out-of-control spending by treating me like a crook and locking me out of my own music, at a time when my Powerbook was in the shop -- i.e., at a time when I was hardly disposed to feel charitable to Apple. + +I'm an edge case here, but I'm a *{leading edge}* case. If Apple succeeds in its business plans, it will only be a matter of time until even average customers have upgraded enough hardware and bought enough music to end up where I am. + +You know what I would totally buy? A record player that let me play everybody's records. Right now, the closest I can come to that is an open source app called VLC, but it's clunky and buggy and it didn't come pre-installed on my computer. + +Sony didn't make a Betamax that only played the movies that Hollywood was willing to permit -- Hollywood asked them to do it, they proposed an early, analog broadcast flag that VCRs could hunt for and respond to by disabling recording. Sony ignored them and made the product they thought their customers wanted. + +I'm a Microsoft customer. Like millions of other Microsoft customers, I want a player that plays anything I throw at it, and I think that you are just the company to give it to me. + +Yes, this would violate copyright law as it stands, but Microsoft has been making tools of piracy that change copyright law for decades now. Outlook, Exchange and MSN are tools that abet widescale digital infringement. + +More significantly, IIS and your caching proxies all make and serve copies of documents without their authors' consent, something that, if it is legal today, is only legal because companies like Microsoft went ahead and did it and dared lawmakers to prosecute. + +Microsoft stood up for its customers and for progress, and won so decisively that most people never even realized that there was a fight. + +Do it again! This is a company that looks the world's roughest, toughest anti-trust regulators in the eye and laughs. Compared to anti-trust people, copyright lawmakers are pantywaists. You can take them with your arm behind your back. + +In Siva Vaidhyanathan's book The Anarchist in the Library, he talks about why the studios are so blind to their customers' desires. It's because people like you and me spent the 80s and the 90s telling them bad science fiction stories about impossible DRM technology that would let them charge a small sum of money every time someone looked at a movie -- want to fast-forward? That feature costs another penny. Pausing is two cents an hour. The mute button will cost you a quarter. + +When Mako Analysis issued their report last month advising phone companies to stop supporting Symbian phones, they were just writing the latest installment in this story. Mako says that phones like my P900, which can play MP3s as ringtones, are bad for the cellphone economy, because it'll put the extortionate ringtone sellers out of business. What Mako is saying is that just because you bought the CD doesn't mean that you should expect to have the ability to listen to it on your MP3 player, and just because it plays on your MP3 player is no reason to expect it to run as a ringtone. I wonder how they feel about alarm clocks that will play a CD to wake you up in the morning? Is that strangling the nascent "alarm tone" market? + +The phone companies' customers want Symbian phones and for now, at least, the phone companies understand that if they don't sell them, someone else will. + +The market opportunity for a truly capable devices is enormous. There's a company out there charging *{$27,000}* for a DVD jukebox -- go and eat their lunch! Steve Jobs isn't going to do it: he's off at the D conference telling studio execs not to release hi-def movies until they're sure no one will make a hi-def DVD burner that works with a PC. + +Maybe they won't buy into his BS, but they're also not much interested in what you have to sell. At the Broadcast Protection Discussion Group meetings where the Broadcast Flag was hammered out, the studios' position was, "We'll take anyone's DRM except Microsoft's and Philips'." When I met with UK broadcast wonks about the European version of the Broadcast Flag underway at the Digital Video Broadcasters' forum, they told me, "Well, it's different in Europe: mostly they're worried that some American company like Microsoft will get their claws into European television." + +American film studios didn't want the Japanese electronics companies to get a piece of the movie pie, so they fought the VCR. Today, everyone who makes movies agrees that they don't want to let you guys get between them and their customers. + +Sony didn't get permission. Neither should you. Go build the record player that can play everyone's records. + +Because if you don't do it, someone else will. + +$$$$ + +1~ The DRM Sausage Factory + +(Originally published as "A Behind-The-Scenes Look At How DRM Becomes Law," InformationWeek, July 11, 2007) ~# + +Otto von Bismarck quipped, "Laws are like sausages, it is better not to see them being made." I've seen sausages made. I've seen laws made. Both pale in comparison to the process by which anti-copying technology agreements are made. + +This technology, usually called "Digital Rights Management" (DRM) proposes to make your computer worse at copying some of the files on its hard-drive or on other media. Since all computer operations involve copying, this is a daunting task -- as security expert Bruce Schneier has said, "Making bits harder to copy is like making water that's less wet." + +At root, DRMs are technologies that treat the owner of a computer or other device as an attacker, someone against whom the system must be armored. Like the electrical meter on the side of your house, a DRM is a technology that you possess, but that you are never supposed to be able to manipulate or modify. Unlike the your meter, though, a DRM that is defeated in one place is defeated in all places, nearly simultaneously. That is to say, once someone takes the DRM off a song or movie or ebook, that freed collection of bits can be sent to anyone else, anywhere the network reaches, in an eyeblink. DRM crackers need cunning: those who receive the fruits of their labor need only know how to download files from the Internet. + +Why manufacture a device that attacks its owner? A priori, one would assume that such a device would cost more to make than a friendlier one, and that customers would prefer not to buy devices that treat them as presumptive criminals. DRM technologies limit more than copying: they limit ranges of uses, such as viewing a movie in a different country, copying a song to a different manufacturer's player, or even pausing a movie for too long. Surely, this stuff hurts sales: who goes into a store and asks, "Do you have any music that's locked to just one company's player? I'm in the market for some lock-in." + +So why do manufacturers do it? As with many strange behaviors, there's a carrot at play here, and a stick. + +The carrot is the entertainment industries' promise of access to their copyrighted works. Add DRM to your iPhone and we'll supply music for it. Add DRM to your TiVo and we'll let you plug it into our satellite receivers. Add DRM to your Zune and we'll let you retail our music in your Zune store. + +The stick is the entertainment industries' threat of lawsuits for companies that don't comply. In the last century, entertainment companies fought over the creation of records, radios, jukeboxes, cable TV, VCRs, MP3 players and other technologies that made it possible to experience a copyrighted work in a new way without permission. There's one battle that serves as the archetype for the rest: the fight over the VCR. + +The film studios were outraged by Sony's creation of the VCR. They had found a DRM supplier they preferred, a company called Discovision that made non-recordable optical discs. Discovision was the only company authorized to play back movies in your living room. The only way to get a copyrighted work onto a VCR cassette was to record it off the TV, without permission. The studios argued that Sony -- whose Betamax was the canary in this legal coalmine -- was breaking the law by unjustly endangering their revenue from Discovision royalties. Sure, they *{could}* just sell pre-recorded Betamax tapes, but Betamax was a read-write medium: they could be *{copied}*. Moreover, your personal library of Betamax recordings of the Sunday night movie would eat into the market for Discovision discs: why would anyone buy a pre-recorded video cassette when they could amass all the video they needed with a home recorder and a set of rabbit-ears? + +The Supreme Court threw out these arguments in a 1984 5-4 decision, the "Betamax Decision." This decision held that the VCR was legal because it was "capable of sustaining a substantially non-infringing use." That means that if you make a technology that your customers *{can}* use legally, you're not on the hook for the illegal stuff they do. + +This principle guided the creation of virtually every piece of IT invented since: the Web, search engines, YouTube, Blogger, Skype, ICQ, AOL, MySpace... You name it, if it's possible to violate copyright with it, the thing that made it possible is the Betamax principle. + +Unfortunately, the Supremes shot the Betamax principle in the gut two years ago, with the Grokster decision. This decision says that a company can be found liable for its customers' bad acts if they can be shown to have "induced" copyright infringement. So, if your company advertises your product for an infringing use, or if it can be shown that you had infringement in mind at the design stage, you can be found liable for your customers' copying. The studios and record labels and broadcasters *{love}* this ruling, and they like to think that it's even broader than what the courts set out. For example, Viacom is suing Google for inducing copyright infringement by allowing YouTube users to flag some of their videos as private. Private videos can't be found by Viacom's copyright-enforcement bots, so Viacom says that privacy should be illegal, and that companies that give you the option of privacy should be sued for anything you do behind closed doors. + +The gutshot Betamax doctrine will bleed out all over the industry for decades (or until the courts or Congress restore it to health), providing a grisly reminder of what happens to companies that try to pour the entertainment companies' old wine into new digital bottles without permission. The tape-recorder was legal, but the digital tape-recorder is an inducement to infringement, and must be stopped. + +The promise of access to content and the threat of legal execution for non-compliance is enough to lure technology's biggest players to the DRM table. + +I started attending DRM meetings in March, 2002, on behalf of my former employers, the Electronic Frontier Foundation. My first meeting was the one where Broadcast Flag was born. The Broadcast Flag was weird even by DRM standards. Broadcasters are required, by law, to deliver TV and radio without DRM, so that any standards-compliant receiver can receive them. The airwaves belong to the public, and are loaned to broadcasters who have to promise to serve the public interest in exchange. But the MPAA and the broadcasters wanted to add DRM to digital TV, and so they proposed that a law should be passed that would make all manufacturers promise to *{pretend}* that there was DRM on broadcast signals, receiving them and immediately squirreling them away in encrypted form. + +The Broadcast Flag was hammered out in a group called the Broadcast Protection Discussion Group (BPDG) a sub-group from the MPAA's "Content Protection Technology Working Group," which also included reps from all the big IT companies (Microsoft, Apple, Intel, and so on), consumer electronics companies (Panasonic, Philips, Zenith), cable companies, satellite companies, and anyone else who wanted to pay $100 to attend the "public" meetings, held every six weeks or so (you can attend these meetings yourself if you find yourself near LAX on one of the upcoming dates). + +CPTWG (pronounced Cee-Pee-Twig) is a venerable presence in the DRM world. It was at CPTWG that the DRM for DVDs was hammered out. CPTWG meetings open with a "benediction," delivered by a lawyer, who reminds everyone there that what they say might be quoted "on the front page of the New York Times," (though journalists are barred from attending CPTWG meetings and no minutes are published by the organization) and reminding all present not to do anything that would raise eyebrows at the FTC's anti-trust division (I could swear I've seen the Microsoft people giggling during this part, though that may have been my imagination). + +The first part of the meeting is usually taken up with administrative business and presentations from DRM vendors, who come out to promise that this time they've really, really figured out how to make computers worse at copying. The real meat comes after the lunch, when the group splits into a series of smaller meetings, many of them closed-door and private (the representatives of the organizations responsible for managing DRM on DVDs splinter off at this point). + +Then comes the working group meetings, like the BPDG. The BPDG was nominally set up to set up the rules for the Broadcast Flag. Under the Flag, manufacturers would be required to limit their "outputs and recording methods" to a set of "approved technologies." Naturally, every manufacturer in the room showed up with a technology to add to the list of approved technologies -- and the sneakier ones showed up with reasons why their competitors' technologies *{shouldn't}* be approved. If the Broadcast Flag became law, a spot on the "approved technologies" list would be a license to print money: everyone who built a next-gen digital TV would be required, by law, to buy only approved technologies for their gear. + +The CPTWG determined that there would be three "chairmen" of the meetings: a representative from the broadcasters, a representative from the studios, and a representative from the IT industry (note that no "consumer rights" chair was contemplated -- we proposed one and got laughed off the agenda). The IT chair was filled by an Intel representative, who seemed pleased that the MPAA chair, Fox Studios's Andy Setos, began the process by proposing that the approved technologies should include only two technologies, both of which Intel partially owned. + +Intel's presence on the committee was both reassurance and threat: reassurance because Intel signaled the fundamental reasonableness of the MPAA's requirements -- why would a company with a bigger turnover than the whole movie industry show up if the negotiations weren't worth having? Threat because Intel was poised to gain an advantage that might be denied to its competitors. + +We settled in for a long negotiation. The discussions were drawn out and heated. At regular intervals, the MPAA reps told us that we were wasting time -- if we didn't hurry things along, the world would move on and consumers would grow accustomed to un-crippled digital TVs. Moreover, Rep Billy Tauzin, the lawmaker who'd evidently promised to enact the Broadcast Flag into law, was growing impatient. The warnings were delivered in quackspeak, urgent and crackling, whenever the discussions dragged, like the crack of the commissars' pistols, urging us forward. + +You'd think that a "technology working group" would concern itself with technology, but there was precious little discussion of bits and bytes, ciphers and keys. Instead, we focused on what amounted to contractual terms: if your technology got approved as a DTV "output," what obligations would you have to assume? If a TiVo could serve as an "output" for a receiver, what outputs would the TiVo be allowed to have? + +The longer we sat there, the more snarled these contractual terms became: winning a coveted spot on the "approved technology" list would be quite a burden! Once you were in the club, there were all sorts of rules about whom you could associate with, how you had to comport yourself and so on. + +One of these rules of conduct was "robustness." As a condition of approval, manufacturers would have to harden their technologies so that their customers wouldn't be able to modify, improve upon, or even understand their workings. As you might imagine, the people who made open source TV tuners were not thrilled about this, as "open source" and "non-user-modifiable" are polar opposites. + +Another was "renewability:" the ability of the studios to revoke outputs that had been compromised in the field. The studios expected the manufacturers to make products with remote "kill switches" that could be used to shut down part or all of their device if someone, somewhere had figured out how to do something naughty with it. They promised that we'd establish criteria for renewability later, and that it would all be "fair." + +But we soldiered on. The MPAA had a gift for resolving the worst snarls: when shouting failed, they'd lead any recalcitrant player out of the room and negotiate in secret with them, leaving the rest of us to cool our heels. Once, they took the Microsoft team out of the room for *{six hours}*, then came back and announced that digital video would be allowed to output on non-DRM monitors at a greatly reduced resolution (this "feature" appears in Vista as "fuzzing"). + +The further we went, the more nervous everyone became. We were headed for the real meat of the negotiations: the *{criteria}* by which approved technology would be evaluated: how many bits of crypto would you need? Which ciphers would be permissible? Which features would and wouldn't be allowed? + +Then the MPAA dropped the other shoe: the sole criteria for inclusion on the list would be the approval of one of its member-companies, or a quorum of broadcasters. In other words, the Broadcast Flag wouldn't be an "objective standard," describing the technical means by which video would be locked away -- it would be purely subjective, up to the whim of the studios. You could have the best product in the world, and they wouldn't approve it if your business-development guys hadn't bought enough drinks for their business-development guys at a CES party. + +To add insult to injury, the only technologies that the MPAA were willing to consider for initial inclusion as "approved" were the two that Intel was involved with. The Intel co-chairman had a hard time hiding his grin. He'd acted as Judas goat, luring in Apple, Microsoft, and the rest, to legitimize a process that would force them to license Intel's patents for every TV technology they shipped until the end of time. + +Why did the MPAA give Intel such a sweetheart deal? At the time, I figured that this was just straight quid pro quo, like Hannibal said to Clarice. But over the years, I started to see a larger pattern: Hollywood likes DRM consortia, and they hate individual DRM vendors. (I've written an entire article about this, but here's the gist: a single vendor who succeeds can name their price and terms -- think of Apple or Macrovision -- while a consortium is a more easily divided rabble, susceptible to co-option in order to produce ever-worsening technologies -- think of Blu-Ray and HD-DVD). Intel's technologies were held through two consortia, the 5C and 4C groups. + +The single-vendor manufacturers were livid at being locked out of the digital TV market. The final report of the consortium reflected this -- a few sheets written by the chairmen describing the "consensus" and hundreds of pages of angry invective from manufacturers and consumer groups decrying it as a sham. + +Tauzin washed his hands of the process: a canny, sleazy Hill operator, he had the political instincts to get his name off any proposal that could be shown to be a plot to break voters' televisions (Tauzin found a better industry to shill for, the pharmaceutical firms, who rewarded him with a $2,000,000/year job as chief of PHARMA, the pharmaceutical lobby). + +Even Representative Ernest "Fritz" Hollings ("The Senator from Disney," who once proposed a bill requiring entertainment industry oversight of all technologies capable of copying) backed away from proposing a bill that would turn the Broadcast Flag into law. Instead, Hollings sent a memo to Michael Powell, then-head of the FCC, telling him that the FCC already had jurisdiction to enact a Broadcast Flag regulation, without Congressional oversight. + +Powell's staff put Hollings's letter online, as they are required to do by federal sunshine laws. The memo arrived as a Microsoft Word file -- which EFF then downloaded and analyzed. Word stashes the identity of a document's author in the file metadata, which is how EFF discovered that the document had been written by a staffer at the MPAA. + +This was truly remarkable. Hollings was a powerful committee chairman, one who had taken immense sums of money from the industries he was supposed to be regulating. It's easy to be cynical about this kind of thing, but it's genuinely unforgivable: politicians draw a public salary to sit in public office and work for the public good. They're supposed to be working for us, not their donors. + +But we all know that this isn't true. Politicians are happy to give special favors to their pals in industry. However, the Hollings memo was beyond the pale. Staffers for the MPAA were writing Hollings's memos, memos that Hollings then signed and mailed off to the heads of major governmental agencies. + +The best part was that the legal eagles at the MPAA were wrong. The FCC took "Hollings's" advice and enacted a Broadcast Flag regulation that was almost identical to the proposal from the BPDG, turning themselves into America's "device czars," able to burden any digital technology with "robustness," "compliance" and "revocation rules." The rule lasted just long enough for the DC Circuit Court of Appeals to strike it down and slap the FCC for grabbing unprecedented jurisdiction over the devices in our living rooms. + +So ended the saga of the Broadcast Flag. More or less. In the years since the Flag was proposed, there have been several attempts to reintroduce it through legislation, all failed. And as more and more innovative, open devices like the Neuros OSD enter the market, it gets harder and harder to imagine that Americans will accept a mandate that takes away all that functionality. + +But the spirit of the Broadcast Flag lives on. DRM consortia are all the rage now -- outfits like AACS LA, the folks who control the DRM in Blu-Ray and HD-DVD, are thriving and making headlines by issuing fatwas against people who publish their secret integers. In Europe, a DRM consortium working under the auspices of the Digital Video Broadcasters Forum (DVB) has just shipped a proposed standard for digital TV DRM that makes the Broadcast Flag look like the work of patchouli-scented infohippies. The DVB proposal would give DRM consortium the ability to define what is and isn't a valid "household" for the purposes of sharing your video within your "household's devices." It limits how long you're allowed to pause a video for, and allows for restrictions to be put in place for hundreds of years, longer than any copyright system in the world would protect any work for. + +If all this stuff seems a little sneaky, underhanded and even illegal to you, you're not alone. When representatives of nearly all the world's entertainment, technology, broadcast, satellite and cable companies gather in a room to collude to cripple their offerings, limit their innovation, and restrict the market, regulators take notice. + +That's why the EU is taking a hard look at HD-DVD and Blu-Ray. These systems aren't designed: they're governed, and the governors are shadowy group of offshore giants who answer to no one -- not even their own members! I once called the DVD-Copy Control Association (DVD-CCA) on behalf of a Time-Warner magazine, Popular Science, for a comment about their DRM. Not only wouldn't they allow me to speak to a spokesman, the person who denied my request also refused to be identified. + +The sausage factory grinds away, but today, more activists than ever are finding ways to participate in the negotiations, slowing them up, making them account for themselves to the public. And so long as you, the technology-buying public, pay attention to what's going on, the activists will continue to hold back the tide. + +$$$$ + +1~ Happy Meal Toys versus Copyright: How America chose Hollywood and Wal-Mart, and why it's doomed us, and how we might survive anyway + +(Originally published as "How Hollywood, Congress, And DRM Are Beating Up The American Economy," InformationWeek, June 11, 2007) ~# + +Back in 1985, the Senate was ready to clobber the music industry for exposing America's impressionable youngsters to sex, drugs and rock-and-roll. Today, the the Attorney General is proposing to give the RIAA legal tools to attack people who attempt infringement. + +Through most of America's history, the US government has been at odds with the entertainment giants, treating them as purveyors of filth. But not anymore: today, the US Trade Rep using America's political clout to force Russia to institute police inspections of its CD presses (savor the irony: post-Soviet Russia forgoes its hard-won freedom of the press to protect Disney and Universal!). + +How did entertainment go from trenchcoat pervert to top trade priority? I blame the "Information Economy." + +No one really knows what "Information Economy" means, but by the early 90s, we knew it was coming. America deployed her least reliable strategic resource to puzzle out what an "information economy" was and to figure out how to ensure America stayed atop the "new economy" -- America sent in the futurists. + +We make the future in much the same way as we make the past. We don't remember everything that happened to us, just selective details. We weave our memories together on demand, filling in any empty spaces with the present, which is lying around in great abundance. In Stumbling on Happiness, Harvard psych prof Daniel Gilbert describes an experiment in which people with delicious lunches in front of them are asked to remember their breakfast: overwhelmingly, the people with good lunches have more positive memories of breakfast than those who have bad lunches. We don't remember breakfast -- we look at lunch and superimpose it on breakfast. + +We make the future in the same way: we extrapolate as much as we can, and whenever we run out of imagination, we just shovel the present into the holes. That's why our pictures of the future always seem to resemble the present, only moreso. + +So the futurists told us about the Information Economy: they took all the "information-based" businesses (music, movies and microcode, in the neat coinage of Neal Stephenson's 1992 novel Snow Crash) and projected a future in which these would grow to dominate the world's economies. + +There was only one fly in the ointment: most of the world's economies consist of poor people who have more time than money, and if there's any lesson to learn from American college kids, it's that people with more time than money would rather copy information than pay for it. + +Of course they would! Why, when America was a-borning, she was a pirate nation, cheerfully copying the inventions of European authors and inventors. Why not? The fledgling revolutionary republic could copy without paying, keep the money on her shores, and enrich herself with the products and ideas of imperial Europe. Of course, once the US became a global hitter in the creative industries, out came the international copyright agreements: the US signed agreements to protect British authors in exchange for reciprocal agreements from the Brits to protect American authors. + +It's hard to see why a developing country would opt to export its GDP to a rich country when it could get the same benefit by mere copying. The US would have to sweeten the pot. + +The pot-sweetener is the elimination of international trade-barriers. Historically, the US has used tariffs to limit the import of manufactured goods from abroad, and to encourage the import of raw materials from abroad. Generally speaking, rich countries import poor countries' raw materials, process them into manufactured goods, and export them again. Globally speaking, if your country imports sugar and exports sugar cane, chances are you're poor. If your country imports wood and sells paper, chances are you're rich. + +In 1995, the US signed onto the World Trade Organization and its associated copyright and patent agreement, the TRIPS Agreement, and the American economy was transformed. + +Any fellow signatory to the WTO/TRIPS can export manufactured goods to the USA without any tariffs. If it costs you $5 to manufacture and ship a plastic bucket from your factory in Shenjin Province to the USA, you can sell it for $6 and turn a $1 profit. And if it costs an American manufacturer $10 to make the same bucket, the American manufacturer is out of luck. + +The kicker is this: if you want to export your finished goods to America, you have to sign up to protect American copyrights in your own country. Quid pro quo. + +The practical upshot, 12 years later, is that most American manufacturing has gone belly up, Wal-Mart is filled with Happy Meal toys and other cheaply manufactured plastic goods, and the whole world has signed onto US copyright laws. + +But signing onto those laws doesn't mean you'll enforce them. Sure, where a country is really over a barrel (cough, Russia, cough), they'll take the occasional pro forma step to enforce US copyrights, no matter how ridiculous and totalitarian it makes them appear. But with the monthly Russian per-capita GDP hovering at $200, it's just not plausible that Russians are going to start paying $15 for a CD, nor is it likely that they'll stop listening to music until their economy picks up. + +But the real action is in China, where pressing bootleg media is a national sport. China keeps promising that it will do something about this, but it's not like the US has any recourse if China drags its heels. Trade courts may find against China, but China holds all the cards. The US can't afford to abandon Chinese manufacturing (and no one will vote for the politician who hextuples the cost of WiFi cards, brassieres, iPods, staplers, yoga mats, and spatulas by cutting off trade with China). The Chinese can just sit tight. + +The futurists were just plain wrong. An "information economy" can't be based on selling information. Information technology makes copying information easier and easier. The more IT you have, the less control you have over the bits you send out into the world. It will never, ever, EVER get any harder to copy information from here on in. The information economy is about selling everything except information. + +The US traded its manufacturing sector's health for its entertainment industry, hoping that Police Academy sequels could take the place of the rustbelt. The US bet wrong. + +But like a losing gambler who keeps on doubling down, the US doesn't know when to quit. It keeps meeting with its entertainment giants, asking how US foreign and domestic policy can preserve its business-model. Criminalize 70 million American file-sharers? Check. Turn the world's copyright laws upside down? Check. Cream the IT industry by criminalizing attempted infringement? Check. + +It'll never work. It can never work. There will always be an entertainment industry, but not one based on excluding access to published digital works. Once it's in the world, it'll be copied. This is why I give away digital copies of my books and make money on the printed editions: I'm not going to stop people from copying the electronic editions, so I might as well treat them as an enticement to buy the printed objects. + +But there is an information economy. You don't even need a computer to participate. My barber, an avowed technophobe who rebuilds antique motorcycles and doesn't own a PC, benefited from the information economy when I found him by googling for barbershops in my neighborhood. + +Teachers benefit from the information economy when they share lesson plans with their colleagues around the world by email. Doctors benefit from the information economy when they move their patient files to efficient digital formats. Insurance companies benefit from the information economy through better access to fresh data used in the preparation of actuarial tables. Marinas benefit from the information economy when office-slaves look up the weekend's weather online and decide to skip out on Friday for a weekend's sailing. Families of migrant workers benefit from the information economy when their sons and daughters wire cash home from a convenience store Western Union terminal. + +This stuff generates wealth for those who practice it. It enriches the country and improves our lives. + +And it can peacefully co-exist with movies, music and microcode, but not if Hollywood gets to call the shots. Where IT managers are expected to police their networks and systems for unauthorized copying -- no matter what that does to productivity -- they cannot co-exist. Where our operating systems are rendered inoperable by "copy protection," they cannot co-exist. Where our educational institutions are turned into conscript enforcers for the record industry, they cannot co-exist. + +The information economy is all around us. The countries that embrace it will emerge as global economic superpowers. The countries that stubbornly hold to the simplistic idea that the information economy is about selling information will end up at the bottom of the pile. + +What country do you want to live in? + +$$$$ + +1~ Why Is Hollywood Making A Sequel To The Napster Wars? + +(Originally published in InformationWeek, August 14, 2007) ~# + +Hollywood loves sequels -- they're generally a safe bet, provided that you're continuing an already successful franchise. But you'd have to be nuts to shoot a sequel to a disastrous flop -- say, The Adventures of Pluto Nash or Town and Country. + +As disastrous as Pluto Nash was, it was practically painless when compared to the Napster debacle. That shipwreck took place six years ago, when the record industry succeeded in shutting down the pioneering file-sharing service, and they show no signs of recovery. + +!_ The disastrous thing about Napster wasn't that it it existed, but rather that the record industry managed to kill it. + +Napster had an industry-friendly business-model: raise venture capital, start charging for access to the service, and then pay billions of dollars to the record companies in exchange for licenses to their works. Yes, they kicked this plan off without getting permission from the record companies, but that's not so unusual. The record companies followed the same business plan a hundred years ago, when they started recording sheet music without permission, raising capital and garnering profits, and *{then}* working out a deal to pay the composers for the works they'd built their fortunes on. + +Napster's plan was plausible. They had the fastest-adopted technology in the history of the world, garnering 52,000,000 users in 18 months -- more than had voted for either candidate in the preceding US election! -- and discovering, via surveys, that a sizable portion would happily pay between $10 and $15 a month for the service. What's more, Napster's architecture included a gatekeeper that could be used to lock-out non-paying users. + +The record industry refused to deal. Instead, they sued, bringing Napster to its knees. Bertelsmann bought Napster out of the ensuing bankruptcy, a pattern that was followed by other music giants, like Universal, who slayed MP3.com in the courts, then brought home the corpse on the cheap, running it as an internal project. + +After that, the record companies had a field day: practically every venture-funded P2P company went down, and millions of dollars were funneled from the tech venture capital firms to Sand Hill Road to the RIAA's members, using P2P companies and the courts as conduits. + +But the record companies weren't ready to replace these services with equally compelling alternatives. Instead, they fielded inferior replacements like PressPlay, with limited catalog, high prices, and anti-copying technology (digital rights management, or DRM) that alienated users by the millions by treating them like crooks instead of customers. These half-baked ventures did untold damage to the record companies and their parent firms. + +Just look at Sony: they should have been at the top of the heap. They produce some of the world's finest, best-designed electronics. They own one of the largest record labels in the world. The synergy should have been incredible. Electronics would design the walkmen, music would take care of catalog, and marketing would sell it all. + +You know the joke about European hell? The English do the cooking, the Germans are the lovers, the Italians are the police and the French run the government. With Sony, it seemed like music was designing the walkmen, marketing was doing the catalog, and electronic was in charge of selling. Sony's portable players -- the MusicClip and others -- were so crippled by anti-copying technology that they couldn't even play MP3s, and the music selection at Sony services like PressPlay was anemic, expensive, and equally hobbled. Sony isn't even a name in the portable audio market anymore -- today's walkman is an iPod. + +Of course, Sony still has a record-label -- for now. But sales are falling, and the company is reeling from the 2005 "rootkit" debacle, where in deliberately infected eight million music CDs with a hacker tool called a rootkit, compromising over 500,000 US computer networks, including military and government networks, all in a (failed) bid to stop copying of its CDs. + +The public wasn't willing to wait for Sony and the rest to wake up and offer a service that was as compelling, exciting and versatile as Napster. Instead, they flocked to a new generation of services like Kazaa and the various Gnutella networks. Kazaa's business model was to set up offshore, on the tiny Polynesian island of Vanuatu, and bundle spyware with its software, making its profits off of fees from spyware crooks. Kazaa didn't want to pay billions for record industry licenses -- they used the international legal and finance system to hopelessly snarl the RIAA's members through half a decade of wild profitability. The company was eventually brought to ground, but the founders walked away and started Skype and then Joost. + +Meantime, dozens of other services had sprung up to fill Kazaa's niche -- AllofMP3, the notorious Russian site, was eventually killed through intervention of the US Trade Representative and the WTO, and was reborn practically the next day under a new name. + +It's been eight years since Sean Fanning created Napster in his college dorm-room. Eight years later, there isn't a single authorized music service that can compete with the original Napster. Record sales are down every year, and digital music sales aren't filling in the crater. The record industry has contracted to four companies, and it may soon be three if EMI can get regulatory permission to put itself on the block. + +The sue-em-all-and-let-God-sort-em-out plan was a flop in the box office, a flop in home video, and a flop overseas. So why is Hollywood shooting a remake? + +# + +YouTube, 2007, bears some passing similarity to Napster, 2001. Founded by a couple guys in a garage, rocketed to popular success, heavily capitalized by a deep-pocketed giant. Its business model? Turn popularity into dollars and offer a share to the rightsholders whose works they're using. This is an historically sound plan: cable operators got rich by retransmitting broadcasts without permission, and once they were commercial successes, they sat down to negotiate to pay for those copyrights (just as the record companies negotiated with composers *{after}* they'd gotten rich selling records bearing those compositions). + +YouTube 07 has another similarity to Napster 01: it is being sued by entertainment companies. + +Only this time, it's not (just) the record industry. Broadcasters, movie studios, anyone who makes video or audio is getting in on the act. I recently met an NBC employee who told me that he thought that a severe, punishing legal judgment would send a message to the tech industry not to field this kind of service anymore. + +Let's hope he's wrong. Google -- YouTube's owners -- is a grown-up of a company, unusual in a tech industry populated by corporate adolescents. They have lots of money and a sober interest in keeping it. They want to sit down with A/V rightsholders and do a deal. Six years after the Napster verdict, that kind of willingness is in short supply. + +Most of the tech "companies" with an interest in commercializing Internet AV have no interest in sitting down with the studios. They're either nebulous open source projects (like mythtv, a free hyper-TiVo that skips commercials, downloads and shares videos and is wide open to anyone who wants to modify and improve it), politically motivated anarchists (like ThePirateBay, a Swedish BitTorrent tracker site that has mirrors in three countries with non-interoperable legal systems, where they respond to legal notices by writing sarcastic and profane letters and putting them online), or out-and-out crooks like the bootleggers who use P2P to seed their DVD counterfeiting operations. + +It's not just YouTube. TiVo, who pioneered the personal video recorder, is feeling the squeeze, being systematically locked out of the digital cable and satellite market. Their efforts to add a managed TiVoToGo service were attacked by the rightsholders who fought at the FCC to block them. Cable/satellite operators and the studios would much prefer the public to transition to "bundled" PVRs that come with your TV service. + +These boxes are owned by the cable/satellite companies, who have absolute control over them. Time-Warner has been known to remotely delete stored episodes of shows just before the DVD ships, and many operators have started using "flags" that tell recorders not to allow fast-forwarding, or to prevent recording altogether. + +The reason that YouTube and TiVo are more popular than ThePirateBay and mythtv is that they're the easiest way for the public to get what it wants -- the video we want, the way we want it. We use these services because they're like the original Napster: easy, well-designed, functional. + +But if the entertainment industry squeezes these players out, ThePirateBay and mythtv are right there, waiting to welcome us in with open arms. ThePirateBay has already announced that it is launching a YouTube competitor with no-plugin, in-browser viewing. Plenty of entrepreneurs are looking at easing the pain and cast of setting up your own mythtv box. The only reason that the barriers to BitTorrent and mythtv exist is that it hasn't been worth anyone's while to capitalize projects to bring them down. But once the legit competitors of these services are killed, look out. + +The thing is, the public doesn't want managed services with limited rights. We don't want to be stuck using approved devices in approved ways. We never have -- we are the spiritual descendants of the customers for "illegal" record albums and "illegal" cable TV. The demand signal won't go away. + +There's no good excuse for going into production on a sequel to The Napster Wars. We saw that movie. We know how it turns out. Every Christmas, we get articles about how this was the worst Christmas ever for CDs. You know what? CD sales are *{never}* going to improve. CDs have been rendered obsolete by Internet distribution -- and the record industry has locked itself out of the only profitable, popular music distribution systems yet invented. + +Companies like Google/YouTube and TiVo are rarities: tech companies that want to do deals. They need to be cherished by entertainment companies, not sued. + +(Thanks to Bruce Nash and The-Numbers.com for research assistance with this article) + +$$$$ + +1~ You DO Like Reading Off a Computer Screen + +(Originally published in Locus Magazine, March 2007) ~# + +"I don't like reading off a computer screen" -- it's a cliché of the e-book world. It means "I don't read novels off of computer screens" (or phones, or PDAs, or dedicated e-book readers), and often as not the person who says it is someone who, in fact, spends every hour that Cthulhu sends reading off a computer screen. It's like watching someone shovel Mars Bars into his gob while telling you how much he hates chocolate. + +But I know what you mean. You don't like reading long-form works off of a computer screen. I understand perfectly -- in the ten minutes since I typed the first word in the paragraph above, I've checked my mail, deleted two spams, checked an image-sharing community I like, downloaded a YouTube clip of Stephen Colbert complaining about the iPhone (pausing my MP3 player first), cleared out my RSS reader, and then returned to write this paragraph. + +This is not an ideal environment in which to concentrate on long-form narrative (sorry, one sec, gotta blog this guy who's made cardboard furniture) (wait, the Colbert clip's done, gotta start the music up) (19 more RSS items). But that's not to say that it's not an entertainment medium -- indeed, practically everything I do on the computer entertains the hell out of me. It's nearly all text-based, too. Basically, what I do on the computer is pleasure-reading. But it's a fundamentally more scattered, splintered kind of pleasure. Computers have their own cognitive style, and it's not much like the cognitive style invented with the first modern novel (one sec, let me google that and confirm it), Don Quixote, some 400 years ago. + +The novel is an invention, one that was engendered by technological changes in information display, reproduction, and distribution. The cognitive style of the novel is different from the cognitive style of the legend. The cognitive style of the computer is different from the cognitive style of the novel. + +Computers want you to do lots of things with them. Networked computers doubly so -- they (another RSS item) have a million ways of asking for your attention, and just as many ways of rewarding it. + +There's a persistent fantasy/nightmare in the publishing world of the advent of very sharp, very portable computer screens. In the fantasy version, this creates an infinite new market for electronic books, and we all get to sell the rights to our work all over again. In the nightmare version, this leads to runaway piracy, and no one ever gets to sell a novel again. + +I think they're both wrong. The infinitely divisible copyright ignores the "decision cost" borne by users who have to decide, over and over again, whether they want to spend a millionth of a cent on a millionth of a word -- no one buys newspapers by the paragraph, even though most of us only read a slim fraction of any given paper. A super-sharp, super-portable screen would be used to read all day long, but most of us won't spend most of our time reading anything recognizable as a book on them. + +Take the record album. Everything about it is technologically pre-determined. The technology of the LP demanded artwork to differentiate one package from the next. The length was set by the groove density of the pressing plants and playback apparatus. The dynamic range likewise. These factors gave us the idea of the 40-to-60-minute package, split into two acts, with accompanying artwork. Musicians were encouraged to create works that would be enjoyed as a unitary whole for a protracted period -- think of Dark Side of the Moon, or Sgt. Pepper's. + +No one thinks about albums today. Music is now divisible to the single, as represented by an individual MP3, and then subdivisible into snippets like ringtones and samples. When recording artists demand that their works be considered as a whole -- like when Radiohead insisted that the iTunes Music Store sell their whole album as a single, indivisible file that you would have to listen to all the way through -- they sound like cranky throwbacks. + +The idea of a 60-minute album is as weird in the Internet era as the idea of sitting through 15 hours of Der Ring des Nibelungen was 20 years ago. There are some anachronisms who love their long-form opera, but the real action is in the more fluid stuff that can slither around on hot wax -- and now the superfluid droplets of MP3s and samples. Opera survives, but it is a tiny sliver of a much bigger, looser music market. The future composts the past: old operas get mounted for living anachronisms; Andrew Lloyd Webber picks up the rest of the business. + +Or look at digital video. We're watching more digital video, sooner, than anyone imagined. But we're watching it in three-minute chunks from YouTube. The video's got a pause button so you can stop it when the phone rings and a scrubber to go back and forth when you miss something while answering an IM. + +And attention spans don't increase when you move from the PC to a handheld device. These things have less capacity for multitasking than real PCs, and the network connections are slower and more expensive. But they are fundamentally multitasking devices -- you can always stop reading an e-book to play a hand of solitaire that is interrupted by a phone call -- and their social context is that they are used in public places, with a million distractions. It is socially acceptable to interrupt someone who is looking at a PDA screen. By contrast, the TV room -- a whole room for TV! -- is a shrine where none may speak until the commercial airs. + +The problem, then, isn't that screens aren't sharp enough to read novels off of. The problem is that novels aren't screeny enough to warrant protracted, regular reading on screens. + +Electronic books are a wonderful adjunct to print books. It's great to have a couple hundred novels in your pocket when the plane doesn't take off or the line is too long at the post office. It's cool to be able to search the text of a novel to find a beloved passage. It's excellent to use a novel socially, sending it to your friends, pasting it into your sig file. + +But the numbers tell their own story -- people who read off of screens all day long buy lots of print books and read them primarily on paper. There are some who prefer an all-electronic existence (I'd like to be able to get rid of the objects after my first reading, but keep the e-books around for reference), but they're in a tiny minority. + +There's a generation of web writers who produce "pleasure reading" on the web. Some are funny. Some are touching. Some are enraging. Most dwell in Sturgeon's 90th percentile and below. They're not writing novels. If they were, they wouldn't be web writers. + +Mostly, we can read just enough of a free e-book to decide whether to buy it in hardcopy -- but not enough to substitute the e-book for the hardcopy. Like practically everything in marketing and promotion, the trick is to find the form of the work that serves as enticement, not replacement. + +Sorry, got to go -- eight more e-mails. + +$$$$ + +1~ How Do You Protect Artists? + +(Originally published in The Guardian as "Online censorship hurts us all," Tuesday, Oct 2, 2007) ~# + +Artists have lots of problems. We get plagiarized, ripped off by publishers, savaged by critics, counterfeited -- and we even get our works copied by "pirates" who give our stuff away for free online. + +But no matter how bad these problems get, they're a distant second to the gravest, most terrifying problem an artist can face: censorship. + +It's one thing to be denied your credit or compensation, but it's another thing entirely to have your work suppressed, burned or banned. You'd never know it, however, judging from the state of the law surrounding the creation and use of internet publishing tools. + +Since 1995, every single legislative initiative on this subject in the UK's parliament, the European parliament and the US Congress has focused on making it easier to suppress "illegitimate" material online. From libel to copyright infringement, from child porn to anti-terror laws, our legislators have approached the internet with a single-minded focus on seeing to it that bad material is expeditiously removed. + +And that's the rub. I'm certainly no fan of child porn or hate speech, but every time a law is passed that reduces the burden of proof on those who would remove material from the internet, artists' fortunes everywhere are endangered. + +Take the US's 1998 Digital Millennium Copyright Act, which has equivalents in every European state that has implemented the 2001 European Union Copyright Directive. The DMCA allows anyone to have any document on the internet removed, simply by contacting its publisher and asserting that the work infringes his copyright. + +The potential for abuse is obvious, and the abuse has been widespread: from the Church of Scientology to companies that don't like what reporters write about them, DMCA takedown notices have fast become the favorite weapon in the cowardly bully's arsenal. + +But takedown notices are just the start. While they can help silence critics and suppress timely information, they're not actually very effective at stopping widespread copyright infringement. Viacom sent over 100,000 takedown notices to YouTube last February, but seconds after it was all removed, new users uploaded it again. + +Even these takedown notices were sloppily constructed: they included videos of friends eating at barbecue restaurants and videos of independent bands performing their own work. As a Recording Industry Association of America spokesman quipped, "When you go trawling with a net, you catch a few dolphins." + +Viacom and others want hosting companies and online service providers to preemptively evaluate all the material that their users put online, holding it to ensure that it doesn't infringe copyright before they release it. + +This notion is impractical in the extreme, for at least two reasons. First, an exhaustive list of copyrighted works would be unimaginably huge, as every single creative work is copyrighted from the instant that it is created and "fixed in a tangible medium". + +Second, even if such a list did exist, it would be trivial to defeat, simply by introducing small changes to the infringing copies, as spammers do with the text of their messages in order to evade spam filters. + +In fact, the spam wars have some important lessons to teach us here. Like copyrighted works, spams are infinitely varied and more are being created every second. Any company that could identify spam messages -- including permutations and variations on existing spams -- could write its own ticket to untold billions. + +Some of the smartest, most dedicated engineers on the planet devote every waking hour to figuring out how to spot spam before it gets delivered. If your inbox is anything like mine, you'll agree that the war is far from won. + +If the YouTubes of the world are going to prevent infringement, they're going to have to accomplish this by hand-inspecting every one of the tens of billions of blog posts, videos, text-files, music files and software uploads made to every single server on the internet. + +And not just cursory inspections, either -- these inspections will have to be undertaken by skilled, trained specialists (who'd better be talented linguists, too -- how many English speakers can spot an infringement in Urdu?). + +Such experts don't come cheap, which means that you can anticipate a terrible denuding of the fertile jungle of internet hosting companies that are primary means by which tens of millions of creative people share the fruits of their labor with their fans and colleagues. + +It would be a great Sovietisation of the world's digital printing presses, a contraction of a glorious anarchy of expression into a regimented world of expensive and narrow venues for art. + +It would be a death knell for the kind of focused, non-commercial material whose authors couldn't fit the bill for a "managed" service's legion of lawyers, who would be replaced by more of the same -- the kind of lowest common denominator rubbish that fills the cable channels today. + +And the worst of it is, we're marching toward this "solution" in the name of protecting artists. Gee, thanks. + +$$$$ + +1~ It's the Information Economy, Stupid + +(Originally published in The Guardian as "Free data sharing is here to stay," September 18, 2007) ~# + +Since the 1970s, pundits have predicted a transition to an "information economy." The vision of an economy based on information seized the imaginations of the world's governments. For decades now, they have been creating policies to "protect" information -- stronger copyright laws, international treaties on patents and trademarks, treaties to protect anti-copying technology. + +The thinking is simple: an information economy must be based on buying and selling information. Therefore, we need policies to make it harder to get access to information unless you've paid for it. That means that we have to make it harder for you to share information, even after you've paid for it. Without the ability to fence off your information property, you can't have an information market to fuel the information economy. + +But this is a tragic case of misunderstanding a metaphor. Just as the industrial economy wasn't based on making it harder to get access to machines, the information economy won't be based on making it harder to get access to information. Indeed, the opposite seems to be true: the more IT we have, the easier it is to access any given piece of information -- for better or for worse. + +It used to be that copy-prevention companies' strategies went like this: "We'll make it easier to buy a copy of this data than to make an unauthorized copy of it. That way, only the uber-nerds and the cash-poor/time-rich classes will bother to copy instead of buy." But every time a PC is connected to the Internet and its owner is taught to use search tools like Google (or The Pirate Bay), a third option appears: you can just download a copy from the Internet. Every techno-literate participant in the information economy can choose to access any data, without having to break the anti-copying technology, just by searching for the cracked copy on the public Internet. If there's one thing we can be sure of, it's that an information economy will increase the technological literacy of its participants. + +As I write this, I am sitting in a hotel room in Shanghai, behind the Great Firewall of China. Theoretically, I can't access blogging services that carry negative accounts of Beijing's doings, like Wordpress, Blogspot and Livejournal, nor the image-sharing site Flickr, nor Wikipedia. The (theoretically) omnipotent bureaucrats of the local Minitrue have deployed their finest engineering talent to stop me. Well, these cats may be able to order political prisoners executed and their organs harvested for Party members, but they've totally failed to keep Chinese people (and big-nose tourists like me) off the world's Internet. The WTO is rattling its sabers at China today, demanding that they figure out how to stop Chinese people from looking at Bruce Willis movies without permission -- but the Chinese government can't even figure out how to stop Chinese people from looking at seditious revolutionary tracts online. + +And, of course, as Paris Hilton, the Church of Scientology and the King of Thailand have discovered, taking a piece of information off the Internet is like getting food coloring out of a swimming pool. Good luck with that. + +To see the evidence of the real information economy, look to all the economic activity that the Internet enables -- not the stuff that it impedes. All the commerce conducted by salarymen who can book their own flights with Expedia instead of playing blind-man's bluff with a travel agent ("Got any flights after 4PM to Frankfurt?"). All the garage crafters selling their goods on Etsy.com. All the publishers selling obscure books through Amazon that no physical bookstore was willing to carry. The salwar kameez tailors in India selling bespoke clothes to westerners via eBay, without intervention by a series of skimming intermediaries. The Internet-era musicians who use the net to pack venues all over the world by giving away their recordings on social services like MySpace. Hell, look at my last barber, in Los Angeles: the man doesn't use a PC, but I found him by googling for "barbers" with my postcode -- the information economy is driving his cost of customer acquisition to zero, and he doesn't even have to actively participate in it. + +Better access to more information is the hallmark of the information economy. The more IT we have, the more skill we have, the faster our networks get and the better our search tools get, the more economic activity the information economy generates. Many of us sell information in the information economy -- I sell my printed books by giving away electronic books, lawyers and architects and consultants are in the information business and they drum up trade with Google ads, and Google is nothing but an info-broker -- but none of us rely on curtailing access to information. Like a bottled water company, we compete with free by supplying a superior service, not by eliminating the competition. + +The world's governments might have bought into the old myth of the information economy, but not so much that they're willing to ban the PC and the Internet. + +$$$$ + +1~ Downloads Give Amazon Jungle Fever + +(Originally published in The Guardian, December 11, 2007) ~# + +Let me start by saying that I love Amazon. I buy everything from books to clothes to electronics to medication to food to batteries to toys to furniture to baby supplies from the company. I once even bought an ironing board on Amazon. No company can top them for ease of use or for respecting consumer rights when it comes to refunds, ensuring satisfaction, and taking good care of loyal customers. + +As a novelist, I couldn't be happier about Amazon's existence. Not only does Amazon have a set of superb recommendation tools that help me sell books, but it also has an affiliate program that lets me get up to 8.5% in commissions for sales of my books through the site - nearly doubling my royalty rate. + +As a consumer advocate and activist, I'm delighted by almost every public policy initiative from Amazon. When the Author's Guild tried to get Amazon to curtail its used-book market, the company refused to back down. Founder Jeff Bezos (who is a friend of mine) even wrote, "when someone buys a book, they are also buying the right to resell that book, to loan it out, or to even give it away if they want. Everyone understands this." + +More recently, Amazon stood up to the US government, who'd gone on an illegal fishing expedition for terrorists (TERRORISTS! TERRORISTS! TERRORISTS!) and asked Amazon to turn over the purchasing history of 24,000 Amazon customers. The company spent a fortune fighting for our rights, and won. + +It also has a well-deserved reputation for taking care over copyright "takedown" notices for the material that its customers post on its site, discarding ridiculous claims rather than blindly acting on every single notice, no matter how frivolous. + +But for all that, it has to be said: Whenever Amazon tries to sell a digital download, it turns into one of the dumbest companies on the web. + +Take the Kindle, the $400 handheld ebook reader that Amazon shipped recently, to vast, ringing indifference. + +The device is cute enough - in a clumsy, overpriced, generation-one kind of way - but the early adopter community recoiled in horror at the terms of service and anti-copying technology that infected it. Ebooks that you buy through the Kindle can't be lent or resold (remember, "when someone buys a book, they are also buying the right to resell that book...Everyone understands this.") + +Mark Pilgrim's "The Future of Reading" enumerates five other Kindle showstoppers: Amazon can change your ebooks without notifying you or getting your permission; and if you violate any of the "agreement", it can delete your ebooks, even if you've paid for them, and you get no appeal. + + +It's not just the Kindle, either. Amazon Unbox, the semi-abortive video download service, shipped with terms of service that included your granting permission for Amazon to install any software on your computer, to spy on you, to delete your videos, to delete any other file on your hard drive, to deny you access to your movies if you lose them in a crash. This comes from the company that will cheerfully ship you a replacement DVD if you email them and tell them that the one you just bought never turned up in the post. + +Even Amazon's much-vaunted MP3 store comes with terms of service that prevent lending and reselling. + +I am mystified by this. Amazon is the kind of company that every etailer should study and copy - the gold standard for e-commerce. You'd think that if there was any company that would intuitively get the web, it would be Amazon. + +What's more, this is a company that stands up to rightsholder groups, publishers and the US government - but only when it comes to physical goods. Why is it that whenever a digital sale is in the offing, Amazon rolls over on its back and wets itself? + +$$$$ + +1~ What's the Most Important Right Creators Have? + +(Originally published as "How Big Media's Copyright Campaigns Threaten Internet Free Expression," InformationWeek, November 5, 2007) ~# + +Any discussion of "creator's rights" is likely to be limited to talk about copyright, but copyright is just a side-dish for creators: the most important right we have is the right to free expression. And these two rights are always in tension. + +Take Viacom's claims against YouTube. The entertainment giant says that YouTube has been profiting from the fact that YouTube users upload clips from Viacom shows, and they demand that YouTube take steps to prevent this from happening in the future. YouTube actually offered to do something very like this: they invited Viacom and other rightsholders to send them all the clips they wanted kept offline, and promised to programatically detect these clips and interdict them. + +But Viacom rejected this offer. Rather, the company wants YouTube to just figure it out, determine a priori which video clips are being presented with permission and which ones are not. After all, Viacom does the very same thing: it won't air clips until a battalion of lawyers have investigated them and determined whether they are lawful. + +But the Internet is not cable television. Net-based hosting outfits -- including YouTube, Flickr, Blogger, Scribd, and the Internet Archive -- offer free publication venues to all comers, enabling anyone to publish anything. In 1998's Digital Millennium Copyright Act, Congress considered the question of liability for these companies and decided to offer them a mixed deal: hosting companies don't need to hire a million lawyers to review every blog-post before it goes live, but rightsholders can order them to remove any infringing material from the net just by sending them a notice that the material infringes. + +This deal enabled hosting companies to offer free platforms for publication and expression to everyone. But it also allowed anyone to censor the Internet, just by making claims of infringement, without offering any evidence to support those claims, without having to go to court to prove their claims (this has proven to be an attractive nuisance, presenting an irresistible lure to anyone with a beef against an online critic, from the Church of Scientology to Diebold's voting machines division). + +The proposal for online hosts to figure out what infringes and what doesn't is wildly impractical. Under most countries' copyright laws, creative works receive a copyright from the moment that they are "fixed in a tangible medium" (hard drives count), and this means that the pool of copyrighted works is so large as to be practically speaking infinite. Knowing whether a work is copyrighted, who holds the copyright, and whether a posting is made with the rightsholder's permission (or in accord with each nation's varying ideas about fair use) is impossible. The only way to be sure is to start from the presumption that each creative work is infringing, and then make each Internet user prove, to some lawyer's satisfaction, that she has the right to post each drib of content that appears on the Web. + +Imagine that such a system were the law of the land. There's no way Blogger or YouTube or Flickr could afford to offer free hosting to their users. Rather, all these hosted services would have to charge enough for access to cover the scorching legal bills associated with checking all material. And not just the freebies, either: your local ISP, the servers hosting your company's website or your page for family genealogy: they'd all have to do the same kind of continuous checking and re-checking of every file you publish with them. + +It would be the end of any publication that couldn't foot the legal bills to get off the ground. The multi-billion-page Internet would collapse into the homogeneous world of cable TV (remember when we thought that a "500-channel universe" would be unimaginably broad? Imagine an Internet with only 500 "channels!"). From Amazon to Ask A Ninja, from Blogger to The Everlasting Blort, every bit of online content is made possible by removing the cost of paying lawyers to act as the Internet's gatekeepers. + +This is great news for artists. The traditional artist's lament is that our publishers have us over a barrel, controlling the narrow and vital channels for making works available -- from big gallery owners to movie studios to record labels to New York publishers. That's why artists have such a hard time negotiating a decent deal for themselves (for example, most beginning recording artists have to agree to have money deducted from their royalty statements for "breakage" of records en route to stores -- and these deductions are also levied against digital sales through the iTunes Store!). + +But, thanks to the web, artists have more options than ever. The Internet's most popular video podcasts aren't associated with TV networks (with all the terrible, one-sided deals that would entail), rather, they're independent programs like RocketBoom, Homestar Runner, or the late, lamented Ze Frank Show. These creators -- along with all the musicians, writers, and other artists using the net to earn their living -- were able to write their own ticket. Today, major artists like Radiohead and Madonna are leaving the record labels behind and trying novel, net-based ways of promoting their work. + +And it's not just the indies who benefit: the existence of successful independent artists creates fantastic leverage for artists who negotiate with the majors. More and more, the big media companies' "like it or leave it" bargaining stance is being undermined by the possibility that the next big star will shrug, turn on her heel, and make her fortune without the big companies' help. This has humbled the bigs, making their deals better and more artist-friendly. + +Bargaining leverage is just for starters. The greatest threat that art faces is suppression. Historically, artists have struggled just to make themselves heard, just to safeguard the right to express themselves. Censorship is history's greatest enemy of art. A limited-liability Web is a Web where anyone can post anything and reach *{everyone}*. + +What's more, this privilege isn't limited to artists. All manner of communication, from the personal introspection in public "diaries" to social chatter on MySpace and Facebook, are now possible. Some artists have taken the bizarre stance that this "trivial" matter is unimportant and thus a poor excuse for allowing hosted services to exist in the first place. This is pretty arrogant: a society where only artists are allowed to impart "important" messages and where the rest of us are supposed to shut up about our loves, hopes, aspirations, jokes, family and wants is hardly a democratic paradise. + +Artists are in the free expression business, and technology that helps free expression helps artists. When lowering the cost of copyright enforcement raises the cost of free speech, every artist has a duty to speak out. Our ability to make our art is inextricably linked with the billions of Internet users who use the network to talk about their lives. + +$$$$ + +1~ Giving it Away + +(Originally published in Forbes.com, December 2006) ~# + +I've been giving away my books ever since my first novel came out, and boy has it ever made me a bunch of money. + +When my first novel, Down and Out in the Magic Kingdom, was published by Tor Books in January 2003, I also put the entire electronic text of the novel on the Internet under a Creative Commons License that encouraged my readers to copy it far and wide. Within a day, there were 30,000 downloads from my site (and those downloaders were in turn free to make more copies). Three years and six printings later, more than 700,000 copies of the book have been downloaded from my site. The book's been translated into more languages than I can keep track of, key concepts from it have been adopted for software projects and there are two competing fan audio adaptations online. + +Most people who download the book don't end up buying it, but they wouldn't have bought it in any event, so I haven't lost any sales, I've just won an audience. A tiny minority of downloaders treat the free e-book as a substitute for the printed book--those are the lost sales. But a much larger minority treat the e-book as an enticement to buy the printed book. They're gained sales. As long as gained sales outnumber lost sales, I'm ahead of the game. After all, distributing nearly a million copies of my book has cost me nothing. + +The thing about an e-book is that it's a social object. It wants to be copied from friend to friend, beamed from a Palm device, pasted into a mailing list. It begs to be converted to witty signatures at the bottom of e-mails. It is so fluid and intangible that it can spread itself over your whole life. Nothing sells books like a personal recommendation--when I worked in a bookstore, the sweetest words we could hear were "My friend suggested I pick up...." The friend had made the sale for us, we just had to consummate it. In an age of online friendship, e-books trump dead trees for word of mouth. + +There are two things that writers ask me about this arrangement: First, does it sell more books, and second, how did you talk your publisher into going for this mad scheme? + +There's no empirical way to prove that giving away books sells more books--but I've done this with three novels and a short story collection (and I'll be doing it with two more novels and another collection in the next year), and my books have consistently outperformed my publisher's expectations. Comparing their sales to the numbers provided by colleagues suggests that they perform somewhat better than other books from similar writers at similar stages in their careers. But short of going back in time and re-releasing the same books under the same circumstances without the free e-book program, there's no way to be sure. + +What is certain is that every writer who's tried giving away e-books to sell books has come away satisfied and ready to do it some more. + +How did I talk Tor Books into letting me do this? It's not as if Tor is a spunky dotcom upstart. They're the largest science fiction publisher in the world, and they're a division of the German publishing giant Holtzbrinck. They're not patchouli-scented info-hippies who believe that information wants to be free. Rather, they're canny assessors of the world of science fiction, perhaps the most social of all literary genres. Science fiction is driven by organized fandom, volunteers who put on hundreds of literary conventions in every corner of the globe, every weekend of the year. These intrepid promoters treat books as markers of identity and as cultural artifacts of great import. They evangelize the books they love, form subcultures around them, cite them in political arguments, sometimes they even rearrange their lives and jobs around them. + +What's more, science fiction's early adopters defined the social character of the Internet itself. Given the high correlation between technical employment and science fiction reading, it was inevitable that the first nontechnical discussion on the Internet would be about science fiction. The online norms of idle chatter, fannish organizing, publishing and leisure are descended from SF fandom, and if any literature has a natural home in cyberspace, it's science fiction, the literature that coined the very word "cyberspace." + +Indeed, science fiction was the first form of widely pirated literature online, through "bookwarez" channels that contained books that had been hand-scanned, a page at a time, converted to digital text and proof-read. Even today, the mostly widely pirated literature online is SF. + +Nothing could make me more sanguine about the future. As publisher Tim O'Reilly wrote in his seminal essay, Piracy is Progressive Taxation, "being well-enough known to be pirated [is] a crowning achievement." I'd rather stake my future on a literature that people care about enough to steal than devote my life to a form that has no home in the dominant medium of the century. + +What about that future? Many writers fear that in the future, electronic books will come to substitute more readily for print books, due to changing audiences and improved technology. I am skeptical of this--the codex format has endured for centuries as a simple and elegant answer to the affordances demanded by print, albeit for a relatively small fraction of the population. Most people aren't and will never be readers--but the people who are readers will be readers forever, and they are positively pervy for paper. + +But say it does come to pass that electronic books are all anyone wants. + +I don't think it's practical to charge for copies of electronic works. Bits aren't ever going to get harder to copy. So we'll have to figure out how to charge for something else. That's not to say you can't charge for a copy-able bit, but you sure can't force a reader to pay for access to information anymore. + +This isn't the first time creative entrepreneurs have gone through one of these transitions. Vaudeville performers had to transition to radio, an abrupt shift from having perfect control over who could hear a performance (if they don't buy a ticket, you throw them out) to no control whatsoever (any family whose 12-year-old could build a crystal set, the day's equivalent of installing file-sharing software, could tune in). There were business models for radio, but predicting them a priori wasn't easy. Who could have foreseen that radio's great fortunes would be had through creating a blanket license, securing a Congressional consent decree, chartering a collecting society and inventing a new form of statistical mathematics to fund it? + +Predicting the future of publishing--should the wind change and printed books become obsolete--is just as hard. I don't know how writers would earn their living in such a world, but I do know that I'll never find out by turning my back on the Internet. By being in the middle of electronic publishing, by watching what hundreds of thousands of my readers do with my e-books, I get better market intelligence than I could through any other means. As does my publisher. As serious as I am about continuing to work as a writer for the foreseeable future, Tor Books and Holtzbrinck are just as serious. They've got even more riding on the future of publishing than me. So when I approached my publisher with this plan to give away books to sell books, it was a no-brainer for them. + +It's good business for me, too. This "market research" of giving away e-books sells printed books. What's more, having my books more widely read opens many other opportunities for me to earn a living from activities around my writing, such as the Fulbright Chair I got at USC this year, this high-paying article in Forbes, speaking engagements and other opportunities to teach, write and license my work for translation and adaptation. My fans' tireless evangelism for my work doesn't just sell books--it sells me. + +The golden age of hundreds of writers who lived off of nothing but their royalties is bunkum. Throughout history, writers have relied on day jobs, teaching, grants, inheritances, translation, licensing and other varied sources to make ends meet. The Internet not only sells more books for me, it also gives me more opportunities to earn my keep through writing-related activities. + +There has never been a time when more people were reading more words by more authors. The Internet is a literary world of written words. What a fine thing that is for writers. + +$$$$ + +1~ Science Fiction is the Only Literature People Care Enough About to Steal on the Internet + +(Originally published in Locus Magazine, July 2006) + +As a science fiction writer, no piece of news could make me more hopeful. It beats the hell out of the alternative -- a future where the dominant, pluripotent, ubiquitous medium has no place for science fiction literature. + +When radio and records were invented, they were pretty bad news for the performers of the day. Live performance demanded charisma, the ability to really put on a magnetic show in front of a crowd. It didn't matter how technically accomplished you were: if you stood like a statue on stage, no one wanted to see you do your thing. On the other hand, you succeeded as a mediocre player, provided you attacked your performance with a lot of brio. + +Radio was clearly good news for musicians -- lots more musicians were able to make lots more music, reaching lots more people and making lots more money. It turned performance into an industry, which is what happens when you add technology to art. But it was terrible news for charismatics. It put them out on the street, stuck them with flipping burgers and driving taxis. They knew it, too. Performers lobbied to have the Marconi radio banned, to send Marconi back to the drawing board, charged with inventing a radio they could charge admission to. "We're charismatics, we do something as old and holy as the first story told before the first fire in the first cave. What right have you to insist that we should become mere clerks, working in an obscure back-room, leaving you to commune with our audiences on our behalf?" + +Technology giveth and technology taketh away. Seventy years later, Napster showed us that, as William Gibson noted, "We may be at the end of the brief period during which it is possible to charge for recorded music." Surely we're at the end of the period where it's possible to exclude those who don't wish to pay. Every song released can be downloaded gratis from a peer-to-peer network (and will shortly get easier to download, as hard-drive price/performance curves take us to a place where all the music ever recorded will fit on a disposable pocket-drive that you can just walk over to a friend's place and copy). + +But have no fear: the Internet makes it possible for recording artists to reach a wider audience than ever dreamt of before. Your potential fans may be spread in a thin, even coat over the world, in a configuration that could never be cost-effective to reach with traditional marketing. But the Internet's ability to lower the costs for artists to reach their audiences and for audiences to find artists suddenly renders possible more variety in music than ever before. + +Those artists can use the Internet to bring people back to the live performances that characterized the heyday of Vaudeville. Use your recordings -- which you can't control -- to drive admissions to your performances, which you can control. It's a model that's worked great for jam bands like the Grateful Dead and Phish. It's also a model that won't work for many of today's artists; 70 years of evolutionary pressure has selected for artists who are more virtuoso than charismatic, artists optimized for recording-based income instead of performance-based income. "How dare you tell us that we are to be trained monkeys, capering on a stage for your amusement? We're not charismatics, we're white-collar workers. We commune with our muses behind closed doors and deliver up our work product when it's done, through plastic, laser-etched discs. You have no right to demand that we convert to a live-performance economy." + +Technology giveth and technology taketh away. As bands on MySpace -- who can fill houses and sell hundreds of thousands of discs without a record deal, by connecting individually with fans -- have shown, there's a new market aborning on the Internet for music, one with fewer gatekeepers to creativity than ever before. + +That's the purpose of copyright, after all: to decentralize who gets to make art. Before copyright, we had patronage: you could make art if the Pope or the king liked the sound of it. That produced some damned pretty ceilings and frescos, but it wasn't until control of art was given over to the market -- by giving publishers a monopoly over the works they printed, starting with the Statute of Anne in 1710 -- that we saw the explosion of creativity that investment-based art could create. Industrialists weren't great arbiters of who could and couldn't make art, but they were better than the Pope. + +The Internet is enabling a further decentralization in who gets to make art, and like each of the technological shifts in cultural production, it's good for some artists and bad for others. The important question is: will it let more people participate in cultural production? Will it further decentralize decision-making for artists? + +And for SF writers and fans, the further question is, "Will it be any good to our chosen medium?" Like I said, science fiction is the only literature people care enough about to steal on the Internet. It's the only literature that regularly shows up, scanned and run through optical character recognition software and lovingly hand-edited on darknet newsgroups, Russian websites, IRC channels and elsewhere (yes, there's also a brisk trade in comics and technical books, but I'm talking about prose fiction here -- though this is clearly a sign of hope for our friends in tech publishing and funnybooks). + +Some writers are using the Internet's affinity for SF to great effect. I've released every one of my novels under Creative Commons licenses that encourage fans to share them freely and widely -- even, in some cases, to remix them and to make new editions of them for use in the developing world. My first novel, Down and Out in the Magic Kingdom, is in its sixth printing from Tor, and has been downloaded more than 650,000 times from my website, and an untold number of times from others' websites. + +I've discovered what many authors have also discovered: releasing electronic texts of books drives sales of the print editions. An SF writer's biggest problem is obscurity, not piracy. Of all the people who chose not to spend their discretionary time and cash on our works today, the great bulk of them did so because they didn't know they existed, not because someone handed them a free e-book version. + +But what kind of artist thrives on the Internet? Those who can establish a personal relationship with their readers -- something science fiction has been doing for as long as pros have been hanging out in the con suite instead of the green room. These conversational artists come from all fields, and they combine the best aspects of charisma and virtuosity with charm -- the ability to conduct their online selves as part of a friendly salon that establishes a non-substitutable relationship with their audiences. You might find a film, a game, and a book to be equally useful diversions on a slow afternoon, but if the novel's author is a pal of yours, that's the one you'll pick. It's a competitive advantage that can't be beat. + +See Neil Gaiman's blog, where he manages the trick of carrying on a conversation with millions. Or Charlie Stross's Usenet posts. Scalzi's blogs. J. Michael Straczynski's presence on Usenet -- while in production on Babylon 5, no less -- breeding an army of rabid fans ready to fax-bomb recalcitrant TV execs into submission and syndication. See also the MySpace bands selling a million units of their CDs by adding each buyer to their "friends lists." Watch Eric Flint manage the Baen Bar, and Warren Ellis's good-natured growling on his sites, lists, and so forth. + +Not all artists have in them to conduct an online salon with their audiences. Not all Vaudevillians had it in them to transition to radio. Technology giveth and technology taketh away. SF writers are supposed to be soaked in the future, ready to come to grips with it. The future is conversational: when there's more good stuff that you know about that's one click away or closer than you will ever click on, it's not enough to know that some book is good. The least substitutable good in the Internet era is the personal relationship. + +Conversation, not content, is king. If you were stranded on a desert island and you opted to bring your records instead of your friends, we'd call you a sociopath. Science fiction writers who can insert themselves into their readers' conversations will be set for life. + +$$$$ + +1~ How Copyright Broke + +(Originally published in Locus Magazine, September, 2006) ~# + +The theory is that if the Internet can't be controlled, then copyright is dead. The thing is, the Internet is a machine for copying things cheaply, quickly, and with as little control as possible, while copyright is the right to control who gets to make copies, so these two abstractions seem destined for a fatal collision, right? + +Wrong. + +The idea that copyright confers the exclusive right to control copying, performance, adaptation, and general use of a creative work is a polite fiction that has been mostly harmless throughout its brief history, but which has been laid bare by the Internet, and the disjoint is showing. + +Theoretically, if I sell you a copy of one of my novels, I'm conferring upon you a property interest in a lump of atoms -- the pages of the book -- as well as a license to make some reasonable use of the ethereal ideas embedded upon the page, the copyrighted work. + +Copyright started with a dispute between Scottish and English publishers, and the first copyright law, 1709's Statute of Anne, conferred the exclusive right to publish new editions of a book on the copyright holder. It was a fair competition statute, and it was silent on the rights that the copyright holder had in respect of his customers: the readers. Publishers got a legal tool to fight their competitors, a legal tool that made a distinction between the corpus -- a physical book -- and the spirit -- the novel writ on its pages. But this legal nicety was not "customer-facing." As far as a reader was concerned, once she bought a book, she got the same rights to it as she got to any other physical object, like a potato or a shovel. Of course, the reader couldn't print a new edition, but this had as much to do with the realities of technology as it did with the law. Printing presses were rare and expensive: telling a 17th-century reader that he wasn't allowed to print a new edition of a book you sold him was about as meaningful as telling him he wasn't allowed to have it laser-etched on the surface of the moon. Publishing books wasn't something readers did. + +Indeed, until the photocopier came along, it was practically impossible for a member of the audience to infringe copyright in a way that would rise to legal notice. Copyright was like a tank-mine, designed only to go off when a publisher or record company or radio station rolled over it. We civilians couldn't infringe copyright (many thanks to Jamie Boyle for this useful analogy). + +It wasn't the same for commercial users of copyrighted works. For the most part, a radio station that played a record was expected to secure permission to do so (though this permission usually comes in the form of a government-sanctioned blanket license that cuts through all the expense of negotiating in favor of a single monthly payment that covers all radio play). If you shot a movie, you were expected to get permission for the music you put in it. Critically, there are many uses that commercial users never paid for. Most workplaces don't pay for the music their employees enjoy while they work. An ad agency that produces a demo reel of recent commercials to use as part of a creative briefing to a designer doesn't pay for this extremely commercial use. A film company whose set-designer clips and copies from magazines and movies to produce a "mood book" never secures permission nor offers compensation for these uses. + +Theoretically, the contours of what you may and may not do without permission are covered under a legal doctrine called "fair use," which sets out the factors a judge can use to weigh the question of whether an infringement should be punished. While fair use is a vital part of the way that works get made and used, it's very rare for an unauthorized use to get adjudicated on this basis. + +No, the realpolitik of unauthorized use is that users are not required to secure permission for uses that the rights holder will never discover. If you put some magazine clippings in your mood book, the magazine publisher will never find out you did so. If you stick a Dilbert cartoon on your office-door, Scott Adams will never know about it. + +So while technically the law has allowed rights holders to infinitely discriminate among the offerings they want to make -- Special discounts on this book, which may only be read on Wednesdays! This film half-price, if you agree only to show it to people whose names start with D! -- practicality has dictated that licenses could only be offered on enforceable terms. + +When it comes to retail customers for information goods -- readers, listeners, watchers -- this whole license abstraction falls flat. No one wants to believe that the book he's brought home is only partly his, and subject to the terms of a license set out on the flyleaf. You'd be a flaming jackass if you showed up at a con and insisted that your book may not be read aloud, nor photocopied in part and marked up for a writers' workshop, nor made the subject of a piece of fan-fiction. + +At the office, you might get a sweet deal on a coffee machine on the promise that you'll use a certain brand of coffee, and even sign off on a deal to let the coffee company check in on this from time to time. But no one does this at home. We instinctively and rightly recoil from the idea that our personal, private dealings in our homes should be subject to oversight from some company from whom we've bought something. We bought it. It's ours. Even when we rent things, like cars, we recoil from the idea that Hertz might track our movements, or stick a camera in the steering wheel. + +When the Internet and the PC made it possible to sell a lot of purely digital "goods" -- software, music, movies and books delivered as pure digits over the wire, without a physical good changing hands, the copyright lawyers groped about for a way to take account of this. It's in the nature of a computer that it copies what you put on it. A computer is said to be working, and of high quality, in direct proportion to the degree to which it swiftly and accurately copies the information that it is presented with. + +The copyright lawyers had a versatile hammer in their toolbox: the copyright license. These licenses had been presented to corporations for years. Frustratingly (for the lawyers), these corporate customers had their own counsel, and real bargaining power, which made it impossible to impose really interesting conditions on them, like limiting the use of a movie such that it couldn't be fast-forwarded, or preventing the company from letting more than one employee review a journal at a time. + +Regular customers didn't have lawyers or negotiating leverage. They were a natural for licensing regimes. Have a look at the next click-through "agreement" you're provided with on purchasing a piece of software or an electronic book or song. The terms set out in those agreements are positively Dickensian in their marvelous idiocy. Sony BMG recently shipped over eight million music CDs with an "agreement" that bound its purchasers to destroy their music if they left the country or had a house-fire, and to promise not to listen to their tunes while at work. + +But customers understand property -- you bought it, you own it -- and they don't understand copyright. Practically no one understands copyright. I know editors at multibillion-dollar publishing houses who don't know the difference between copyright and trademark (if you've ever heard someone say, "You need to defend a copyright or you lose it," you've found one of these people who confuse copyright and trademark; what's more, this statement isn't particularly true of trademark, either). I once got into an argument with a senior Disney TV exec who truly believed that if you re-broadcasted an old program, it was automatically re-copyrighted and got another 95 years of exclusive use (that's wrong). + +So this is where copyright breaks: When copyright lawyers try to treat readers and listeners and viewers as if they were (weak and unlucky) corporations who could be strong-armed into license agreements you wouldn't wish on a dog. There's no conceivable world in which people are going to tiptoe around the property they've bought and paid for, re-checking their licenses to make sure that they're abiding by the terms of an agreement they doubtless never read. Why read something if it's non-negotiable, anyway? + +The answer is simple: treat your readers' property as property. What readers do with their own equipment, as private, noncommercial actors, is not a fit subject for copyright regulation or oversight. The Securities Exchange Commission doesn't impose rules on you when you loan a friend five bucks for lunch. Anti-gambling laws aren't triggered when you bet your kids an ice-cream cone that you'll bicycle home before them. Copyright shouldn't come between an end-user of a creative work and her property. + +Of course, this approach is made even simpler by the fact that practically every customer for copyrighted works already operates on this assumption. Which is not to say that this might make some business-models more difficult to pursue. Obviously, if there was some way to ensure that a given publisher was the only source for a copyrighted work, that publisher could hike up its prices, devote less money to service, and still sell its wares. Having to compete with free copies handed from user to user makes life harder -- hasn't it always? + +But it is most assuredly possible. Look at Apple's wildly popular iTunes Music Store, which has sold over one billion tracks since 2003. Every song on iTunes is available as a free download from user-to-user, peer-to-peer networks like Kazaa. Indeed, the P2P monitoring company Big Champagne reports that the average time-lapse between a iTunes-exclusive song being offered by Apple and that same song being offered on P2P networks is 180 seconds. + +Every iTunes customer could readily acquire every iTunes song for free, using the fastest-adopted technology in history. Many of them do (just as many fans photocopy their favorite stories from magazines and pass them around to friends). But Apple has figured out how to compete well enough by offering a better service and a better experience to realize a good business out of this. (Apple also imposes ridiculous licensing restrictions, but that's a subject for a future column). + +Science fiction is a genre of clear-eyed speculation about the future. It should have no place for wishful thinking about a world where readers willingly put up with the indignity of being treated as "licensees" instead of customers. + +$$$$ + +!_ And now a brief commercial interlude: + +If you're enjoying this book and have been thinking of buying a copy, here's a chance to do so: + +http://craphound.com/content/buy + +$$$$ + +1~ In Praise of Fanfic + +(Originally published in Locus Magazine, May 2007) ~# + +I wrote my first story when I was six. It was 1977, and I had just had my mind blown clean out of my skull by a new movie called Star Wars (the golden age of science fiction is 12; the golden age of cinematic science fiction is six). I rushed home and stapled a bunch of paper together, trimmed the sides down so that it approximated the size and shape of a mass-market paperback, and set to work. I wrote an elaborate, incoherent ramble about Star Wars, in which the events of the film replayed themselves, tweaked to suit my tastes. + +I wrote a lot of Star Wars fanfic that year. By the age of 12, I'd graduated to Conan. By the age of 18, it was Harlan Ellison. By the age of 26, it was Bradbury, by way of Gibson. Today, I hope I write more or less like myself. + +Walk the streets of Florence and you'll find a copy of the David on practically every corner. For centuries, the way to become a Florentine sculptor has been to copy Michelangelo, to learn from the master. Not just the great Florentine sculptors, either -- great or terrible, they all start with the master; it can be the start of a lifelong passion, or a mere fling. The copy can be art, or it can be crap -- the best way to find out which kind you've got inside you is to try. + +Science fiction has the incredible good fortune to have attracted huge, social groups of fan-fiction writers. Many pros got their start with fanfic (and many of them still work at it in secret), and many fanfic writers are happy to scratch their itch by working only with others' universes, for the sheer joy of it. Some fanfic is great -- there's plenty of Buffy fanfic that trumps the official, licensed tie-in novels -- and some is purely dreadful. + +Two things are sure about all fanfic, though: first, that people who write and read fanfic are already avid readers of writers whose work they're paying homage to; and second, that the people who write and read fanfic derive fantastic satisfaction from their labors. This is great news for writers. + +Great because fans who are so bought into your fiction that they'll make it their own are fans forever, fans who'll evangelize your work to their friends, fans who'll seek out your work however you publish it. + +Great because fans who use your work therapeutically, to work out their own creative urges, are fans who have a damned good reason to stick with the field, to keep on reading even as our numbers dwindle. Even when the fandom revolves around movies or TV shows, fanfic is itself a literary pursuit, something undertaken in the world of words. The fanfic habit is a literary habit. + +In Japan, comic book fanfic writers publish fanfic manga called dojinshi -- some of these titles dwarf the circulation of the work they pay tribute to, and many of them are sold commercially. Japanese comic publishers know a good thing when they see it, and these fanficcers get left alone by the commercial giants they attach themselves to. + +And yet for all this, there are many writers who hate fanfic. Some argue that fans have no business appropriating their characters and situations, that it's disrespectful to imagine your precious fictional people into sexual scenarios, or to retell their stories from a different point of view, or to snatch a victorious happy ending from the tragic defeat the writer ended her book with. + +Other writers insist that fans who take without asking -- or against the writer's wishes -- are part of an "entitlement culture" that has decided that it has the moral right to lift scenarios and characters without permission, that this is part of our larger postmodern moral crisis that is making the world a worse place. + +Some writers dismiss all fanfic as bad art and therefore unworthy of appropriation. Some call it copyright infringement or trademark infringement, and every now and again, some loony will actually threaten to sue his readers for having had the gall to tell his stories to each other. + +I'm frankly flabbergasted by these attitudes. Culture is a lot older than art -- that is, we have had social storytelling for a lot longer than we've had a notional class of artistes whose creativity is privileged and elevated to the numinous, far above the everyday creativity of a kid who knows that she can paint and draw, tell a story and sing a song, sculpt and invent a game. + +To call this a moral failing -- and a new moral failing at that! -- is to turn your back on millions of years of human history. It's no failing that we internalize the stories we love, that we rework them to suit our minds better. The Pygmalion story didn't start with Shaw or the Greeks, nor did it end with My Fair Lady. Pygmalion is at least thousands of years old -- think of Moses passing for the Pharaoh's son! -- and has been reworked in a billion bedtime stories, novels, D&D games, movies, fanfic stories, songs, and legends. + +Each person who retold Pygmalion did something both original -- no two tellings are just alike -- and derivative, for there are no new ideas under the sun. Ideas are easy. Execution is hard. That's why writers don't really get excited when they're approached by people with great ideas for novels. We've all got more ideas than we can use -- what we lack is the cohesive whole. + +Much fanfic -- the stuff written for personal consumption or for a small social group -- isn't bad art. It's just not art. It's not written to make a contribution to the aesthetic development of humanity. It's created to satisfy the deeply human need to play with the stories that constitute our world. There's nothing trivial about telling stories with your friends -- even if the stories themselves are trivial. The act of telling stories to one another is practically sacred -- and it's unquestionably profound. What's more, lots of retellings are art: witness Pat Murphy's wonderful There and Back Again (Tolkien) and Geoff Ryman's brilliant World Fantasy Award-winning Was (L. Frank Baum). + +The question of respect is, perhaps, a little thornier. The dominant mode of criticism in fanfic circles is to compare a work to the canon -- "Would Spock ever say that, in 'real' life?" What's more, fanfic writers will sometimes apply this test to works that are of the canon, as in "Spock never would have said that, and Gene Roddenberry has no business telling me otherwise." + +This is a curious mix of respect and disrespect. Respect because it's hard to imagine a more respectful stance than the one that says that your work is the yardstick against which all other work is to be measured -- what could be more respectful than having your work made into the gold standard? On the other hand, this business of telling writers that they've given their characters the wrong words and deeds can feel obnoxious or insulting. + +Writers sometimes speak of their characters running away from them, taking on a life of their own. They say that these characters -- drawn from real people in our lives and mixed up with our own imagination -- are autonomous pieces of themselves. It's a short leap from there to mystical nonsense about protecting our notional, fictional children from grubby fans who'd set them to screwing each other or bowing and scraping before some thinly veiled version of the fanfic writer herself. + +There's something to the idea of the autonomous character. Big chunks of our wetware are devoted to simulating other people, trying to figure out if we are likely to fight or fondle them. It's unsurprising that when you ask your brain to model some other person, it rises to the task. But that's exactly what happens to a reader when you hand your book over to him: he simulates your characters in his head, trying to interpret that character's actions through his own lens. + +Writers can't ask readers not to interpret their work. You can't enjoy a novel that you haven't interpreted -- unless you model the author's characters in your head, you can't care about what they do and why they do it. And once readers model a character, it's only natural that readers will take pleasure in imagining what that character might do offstage, to noodle around with it. This isn't disrespect: it's active reading. + +Our field is incredibly privileged to have such an active fanfic writing practice. Let's stop treating them like thieves and start treating them like honored guests at a table that we laid just for them. + +$$$$ + +1~ Metacrap: Putting the torch to seven straw-men of the meta-utopia + +(Self-published, 26 August 2001) ~# + +group{ + +0. ToC: + + * 0. ToC + o 0.1 Version History + * 1. Introduction + * 2. The problems + o 2.1 People lie + o 2.2 People are lazy + o 2.3 People are stupid + o 2.4 Mission: Impossible -- know thyself + o 2.5 Schemas aren't neutral + o 2.6 Metrics influence results + o 2.7 There's more than one way to describe something + * 3. Reliable metadata + +}group + +2~x- 1. Introduction + +Metadata is "data about data" -- information like keywords, page-length, title, word-count, abstract, location, SKU, ISBN, and so on. Explicit, human-generated metadata has enjoyed recent trendiness, especially in the world of XML. A typical scenario goes like this: a number of suppliers get together and agree on a metadata standard -- a Document Type Definition or scheme -- for a given subject area, say washing machines. They agree to a common vocabulary for describing washing machines: size, capacity, energy consumption, water consumption, price. They create machine-readable databases of their inventory, which are available in whole or part to search agents and other databases, so that a consumer can enter the parameters of the washing machine he's seeking and query multiple sites simultaneously for an exhaustive list of the available washing machines that meet his criteria. + +If everyone would subscribe to such a system and create good metadata for the purposes of describing their goods, services and information, it would be a trivial matter to search the Internet for highly qualified, context-sensitive results: a fan could find all the downloadable music in a given genre, a manufacturer could efficiently discover suppliers, travelers could easily choose a hotel room for an upcoming trip. + +A world of exhaustive, reliable metadata would be a utopia. It's also a pipe-dream, founded on self-delusion, nerd hubris and hysterically inflated market opportunities. + +2~x- 2. The problems + +There are at least seven insurmountable obstacles between the world as we know it and meta-utopia. I'll enumerate them below:. + +3~x- 2.1 People lie + +Metadata exists in a competitive world. Suppliers compete to sell their goods, cranks compete to convey their crackpot theories (mea culpa), artists compete for audience. Attention-spans and wallets may not be zero-sum, but they're damned close. + +That's why: + +_* A search for any commonly referenced term at a search-engine like Altavista will often turn up at least one porn link in the first ten results. + +_* Your mailbox is full of spam with subject lines like "Re: The information you requested." + +_* Publisher's Clearing House sends out advertisements that holler "You may already be a winner!" + +_* Press-releases have gargantuan lists of empty buzzwords attached to them. + +Meta-utopia is a world of reliable metadata. When poisoning the well confers benefits to the poisoners, the meta-waters get awfully toxic in short order. + +3~x- 2.2 People are lazy + +You and me are engaged in the incredibly serious business of creating information. Here in the Info-Ivory-Tower, we understand the importance of creating and maintaining excellent metadata for our information. + +But info-civilians are remarkably cavalier about their information. Your clueless aunt sends you email with no subject line, half the pages on Geocities are called "Please title this page" and your boss stores all of his files on his desktop with helpful titles like "UNTITLED.DOC." + +This laziness is bottomless. No amount of ease-of-use will end it. To understand the true depths of meta-laziness, download ten random MP3 files from Napster. Chances are, at least one will have no title, artist or track information -- this despite the fact that adding in this info merely requires clicking the "Fetch Track Info from CDDB" button on every MP3-ripping application. + +Short of breaking fingers or sending out squads of vengeful info-ninjas to add metadata to the average user's files, we're never gonna get there. + +3~x- 2.3 People are stupid + +Even when there's a positive benefit to creating good metadata, people steadfastly refuse to exercise care and diligence in their metadata creation. + +Take eBay: every seller there has a damned good reason for double-checking their listings for typos and misspellings. Try searching for "plam" on eBay. Right now, that turns up nine typoed listings for "Plam Pilots." Misspelled listings don't show up in correctly-spelled searches and hence garner fewer bids and lower sale-prices. You can almost always get a bargain on a Plam Pilot at eBay. + +The fine (and gross) points of literacy -- spelling, punctuation, grammar -- elude the vast majority of the Internet's users. To believe that J. Random Users will suddenly and en masse learn to spell and punctuate -- let alone accurately categorize their information according to whatever hierarchy they're supposed to be using -- is self-delusion of the first water. + +3~x- 2.4 Mission: Impossible -- know thyself + +In meta-utopia, everyone engaged in the heady business of describing stuff carefully weighs the stuff in the balance and accurately divines the stuff's properties, noting those results. + +Simple observation demonstrates the fallacy of this assumption. When Nielsen used log-books to gather information on the viewing habits of their sample families, the results were heavily skewed to Masterpiece Theater and Sesame Street. Replacing the journals with set-top boxes that reported what the set was actually tuned to showed what the average American family was really watching: naked midget wrestling, America's Funniest Botched Cosmetic Surgeries and Jerry Springer presents: "My daughter dresses like a slut!" + +Ask a programmer how long it'll take to write a given module, or a contractor how long it'll take to fix your roof. Ask a laconic Southerner how far it is to the creek. Better yet, throw darts -- the answer's likely to be just as reliable. + +People are lousy observers of their own behaviors. Entire religions are formed with the goal of helping people understand themselves better; therapists rake in billions working for this very end. + +Why should we believe that using metadata will help J. Random User get in touch with her Buddha nature? + +3~x- 2.5 Schemas aren't neutral + +In meta-utopia, the lab-coated guardians of epistemology sit down and rationally map out a hierarchy of ideas, something like this: + +group{ + +Nothing: + + Black holes + +Everything: + + Matter: + + Earth: + + Planets + + Washing Machines + + Wind: + + Oxygen + + Poo-gas + + Fire: + + Nuclear fission + + Nuclear fusion + + "Mean Devil Woman" Louisiana Hot-Sauce + +}group + +In a given sub-domain, say, Washing Machines, experts agree on sub-hierarchies, with classes for reliability, energy consumption, color, size, etc. + +This presumes that there is a "correct" way of categorizing ideas, and that reasonable people, given enough time and incentive, can agree on the proper means for building a hierarchy. + +Nothing could be farther from the truth. Any hierarchy of ideas necessarily implies the importance of some axes over others. A manufacturer of small, environmentally conscious washing machines would draw a hierarchy that looks like this: + +group{ + +Energy consumption: + + Water consumption: + + Size: + + Capacity: + + Reliability + +}group + +While a manufacturer of glitzy, feature-laden washing machines would want something like this: + +group{ + +Color: + + Size: + + Programmability: + + Reliability + +}group + +The conceit that competing interests can come to easy accord on a common vocabulary totally ignores the power of organizing principles in a marketplace. + +3~x- 2.6 Metrics influence results + +Agreeing to a common yardstick for measuring the important stuff in any domain necessarily privileges the items that score high on that metric, regardless of those items' overall suitability. IQ tests privilege people who are good at IQ tests, Nielsen Ratings privilege 30- and 60-minute TV shows (which is why MTV doesn't show videos any more -- Nielsen couldn't generate ratings for three-minute mini-programs, and so MTV couldn't demonstrate the value of advertising on its network), raw megahertz scores privilege Intel's CISC chips over Motorola's RISC chips. + +Ranking axes are mutually exclusive: software that scores high for security scores low for convenience, desserts that score high for decadence score low for healthiness. Every player in a metadata standards body wants to emphasize their high-scoring axes and de-emphasize (or, if possible, ignore altogether) their low-scoring axes. + +It's wishful thinking to believe that a group of people competing to advance their agendas will be universally pleased with any hierarchy of knowledge. The best that we can hope for is a detente in which everyone is equally miserable. + +3~x- 2.7 There's more than one way to describe something + +"No, I'm not watching cartoons! It's cultural anthropology." + +"This isn't smut, it's art." + +"It's not a bald spot, it's a solar panel for a sex-machine." + +Reasonable people can disagree forever on how to describe something. Arguably, your Self is the collection of associations and descriptors you ascribe to ideas. Requiring everyone to use the same vocabulary to describe their material denudes the cognitive landscape, enforces homogeneity in ideas. + +And that's just not right. + +2~x- 3. Reliable metadata + +Do we throw out metadata, then? + +Of course not. Metadata can be quite useful, if taken with a sufficiently large pinch of salt. The meta-utopia will never come into being, but metadata is often a good means of making rough assumptions about the information that floats through the Internet. + +Certain kinds of implicit metadata is awfully useful, in fact. Google exploits metadata about the structure of the World Wide Web: by examining the number of links pointing at a page (and the number of links pointing at each linker), Google can derive statistics about the number of Web-authors who believe that that page is important enough to link to, and hence make extremely reliable guesses about how reputable the information on that page is. + +This sort of observational metadata is far more reliable than the stuff that human beings create for the purposes of having their documents found. It cuts through the marketing bullshit, the self-delusion, and the vocabulary collisions. + +Taken more broadly, this kind of metadata can be thought of as a pedigree: who thinks that this document is valuable? How closely correlated have this person's value judgments been with mine in times gone by? This kind of implicit endorsement of information is a far better candidate for an information-retrieval panacea than all the world's schema combined. + +$$$$ + +1~ Amish for QWERTY + +(Originally published on the O'Reilly Network, 07/09/2003) ~# + +I learned to type before I learned to write. The QWERTY keyboard layout is hard-wired to my brain, such that I can't write anything of significance without that I have a 101-key keyboard in front of me. This has always been a badge of geek pride: unlike the creaking pen-and-ink dinosaurs that I grew up reading, I'm well adapted to the modern reality of technology. There's a secret elitist pride in touch-typing on a laptop while staring off into space, fingers flourishing and caressing the keys. + +But last week, my pride got pricked. I was brung low by a phone. Some very nice people from Nokia loaned me a very latest-and-greatest camera-phone, the kind of gadget I've described in my science fiction stories. As I prodded at the little 12-key interface, I felt like my father, a 60s-vintage computer scientist who can't get his wireless network to work, must feel. Like a creaking dino. Like history was passing me by. I'm 31, and I'm obsolete. Or at least Amish. + +People think the Amish are technophobes. Far from it. They're ideologues. They have a concept of what right-living consists of, and they'll use any technology that serves that ideal -- and mercilessly eschew any technology that would subvert it. There's nothing wrong with driving the wagon to the next farm when you want to hear from your son, so there's no need to put a phone in the kitchen. On the other hand, there's nothing right about your livestock dying for lack of care, so a cellphone that can call the veterinarian can certainly find a home in the horse barn. + +For me, right-living is the 101-key, QWERTY, computer-centric mediated lifestyle. It's having a bulky laptop in my bag, crouching by the toilets at a strange airport with my AC adapter plugged into the always-awkwardly-placed power source, running software that I chose and installed, communicating over the wireless network. I use a network that has no incremental cost for communication, and a device that lets me install any software without permission from anyone else. Right-living is the highly mutated, commodity-hardware- based, public and free Internet. I'm QWERTY-Amish, in other words. + +I'm the kind of perennial early adopter who would gladly volunteer to beta test a neural interface, but I find myself in a moral panic when confronted with the 12-button keypad on a cellie, even though that interface is one that has been greedily adopted by billions of people worldwide, from strap-hanging Japanese schoolgirls to Kenyan electoral scrutineers to Filipino guerrillas in the bush. The idea of paying for every message makes my hackles tumesce and evokes a reflexive moral conviction that text-messaging is inherently undemocratic, at least compared to free-as-air email. The idea of only running the software that big-brother telco has permitted me on my handset makes me want to run for the hills. + +The thumb-generation who can tap out a text-message under their desks while taking notes with the other hand -- they're in for it, too. The pace of accelerated change means that we're all of us becoming wed to interfaces -- ways of communicating with our tools and our world -- that are doomed, doomed, doomed. The 12-buttoners are marrying the phone company, marrying a centrally controlled network that requires permission to use and improve, a Stalinist technology whose centralized choke points are subject to regulation and the vagaries of the telcos. Long after the phone companies have been out-competed by the pure and open Internet (if such a glorious day comes to pass), the kids of today will be bound by its interface and its conventions. + +The sole certainty about the future is its Amishness. We will all bend our brains to suit an interface that we will either have to abandon or be left behind. Choose your interface -- and the values it implies -- carefully, then, before you wed your thought processes to your fingers' dance. It may be the one you're stuck with. + +$$$$ + +1~ Ebooks: Neither E, Nor Books + +(Paper for the O'Reilly Emerging Technologies Conference, San Diego, February 12, 2004) ~# + +Forematter: + +This talk was initially given at the O'Reilly Emerging Technology Conference [ http://conferences.oreillynet.com/et2004/ ], along with a set of slides that, for copyright reasons (ironic!) can't be released alongside of this file. However, you will find, interspersed in this text, notations describing the places where new slides should be loaded, in [square-brackets]. + +For starters, let me try to summarize the lessons and intuitions I've had about ebooks from my release of two novels and most of a short story collection online under a Creative Commons license. A parodist who published a list of alternate titles for the presentations at this event called this talk, "eBooks Suck Right Now," [eBooks suck right now] and as funny as that is, I don't think it's true. + +No, if I had to come up with another title for this talk, I'd call it: "Ebooks: You're Soaking in Them." [Ebooks: You're Soaking in Them] That's because I think that the shape of ebooks to come is almost visible in the way that people interact with text today, and that the job of authors who want to become rich and famous is to come to a better understanding of that shape. + +I haven't come to a perfect understanding. I don't know what the future of the book looks like. But I have ideas, and I'll share them with you: + +1. Ebooks aren't marketing. [Ebooks aren't marketing] OK, so ebooks *{are}* marketing: that is to say that giving away ebooks sells more books. Baen Books, who do a lot of series publishing, have found that giving away electronic editions of the previous installments in their series to coincide with the release of a new volume sells the hell out of the new book -- and the backlist. And the number of people who wrote to me to tell me about how much they dug the ebook and so bought the paper-book far exceeds the number of people who wrote to me and said, "Ha, ha, you hippie, I read your book for free and now I'm not gonna buy it." But ebooks *{shouldn't}* be just about marketing: ebooks are a goal unto themselves. In the final analysis, more people will read more words off more screens and fewer words off fewer pages and when those two lines cross, ebooks are gonna have to be the way that writers earn their keep, not the way that they promote the dead-tree editions. + +2. Ebooks complement paper books. [Ebooks complement paper books]. Having an ebook is good. Having a paper book is good. Having both is even better. One reader wrote to me and said that he read half my first novel from the bound book, and printed the other half on scrap-paper to read at the beach. Students write to me to say that it's easier to do their term papers if they can copy and paste their quotations into their word-processors. Baen readers use the electronic editions of their favorite series to build concordances of characters, places and events. + +3. Unless you own the ebook, you don't 0wn the book [Unless you own the ebook, you don't 0wn the book]. I take the view that the book is a "practice" -- a collection of social and economic and artistic activities -- and not an "object." Viewing the book as a "practice" instead of an object is a pretty radical notion, and it begs the question: just what the hell is a book? Good question. I write all of my books in a text-editor [TEXT EDITOR SCREENGRAB] (BBEdit, from Barebones Software -- as fine a text-editor as I could hope for). From there, I can convert them into a formatted two-column PDF [TWO-UP SCREENGRAB]. I can turn them into an HTML file [BROWSER SCREENGRAB]. I can turn them over to my publisher, who can turn them into galleys, advanced review copies, hardcovers and paperbacks. I can turn them over to my readers, who can convert them to a bewildering array of formats [DOWNLOAD PAGE SCREENGRAB]. Brewster Kahle's Internet Bookmobile can convert a digital book into a four-color, full-bleed, perfect-bound, laminated-cover, printed-spine paper book in ten minutes, for about a dollar. Try converting a paper book to a PDF or an html file or a text file or a RocketBook or a printout for a buck in ten minutes! It's ironic, because one of the frequently cited reasons for preferring paper to ebooks is that paper books confer a sense of ownership of a physical object. Before the dust settles on this ebook thing, owning a paper book is going to feel less like ownership than having an open digital edition of the text. + +4. Ebooks are a better deal for writers. [Ebooks are a better deal for writers] The compensation for writers is pretty thin on the ground. *{Amazing Stories}*, Hugo Gernsback's original science fiction magazine, paid a couple cents a word. Today, science fiction magazines pay...a couple cents a word. The sums involved are so minuscule, they're not even insulting: they're *{quaint}* and *{historical}*, like the WHISKEY 5 CENTS sign over the bar at a pioneer village. Some writers do make it big, but they're *{rounding errors}* as compared to the total population of sf writers earning some of their living at the trade. Almost all of us could be making more money elsewhere (though we may dream of earning a stephenkingload of money, and of course, no one would play the lotto if there were no winners). The primary incentive for writing has to be artistic satisfaction, egoboo, and a desire for posterity. Ebooks get you that. Ebooks become a part of the corpus of human knowledge because they get indexed by search engines and replicated by the hundreds, thousands or millions. They can be googled. + +Even better: they level the playing field between writers and trolls. When Amazon kicked off, many writers got their knickers in a tight and powerful knot at the idea that axe-grinding yahoos were filling the Amazon message-boards with ill-considered slams at their work -- for, if a personal recommendation is the best way to sell a book, then certainly a personal condemnation is the best way to *{not}* sell a book. Today, the trolls are still with us, but now, the readers get to decide for themselves. Here's a bit of a review of Down and Out in the Magic Kingdom that was recently posted to Amazon by "A reader from Redwood City, CA": + +group{ + +[QUOTED TEXT] + +> I am really not sure what kind of drugs critics are +> smoking, or what kind of payola may be involved. But +> regardless of what Entertainment Weekly says, whatever +> this newspaper or that magazine says, you shouldn't +> waste your money. Download it for free from Corey's +> (sic) site, read the first page, and look away in +> disgust -- this book is for people who think Dan +> Brown's Da Vinci Code is great writing. + +}group + +Back in the old days, this kind of thing would have really pissed me off. Axe-grinding, mouth-breathing yahoos, defaming my good name! My stars and mittens! But take a closer look at that damning passage: + +group{ + +[PULL-QUOTE] + +> Download it for free from Corey's site, read the first +> page + +}group + +You see that? Hell, this guy is *{working for me}*! [ADDITIONAL PULL QUOTES] Someone accuses a writer I'm thinking of reading of paying off Entertainment Weekly to say nice things about his novel, "a surprisingly bad writer," no less, whose writing is "stiff, amateurish, and uninspired!" I wanna check that writer out. And I can. In one click. And then I can make up my own mind. + +You don't get far in the arts without healthy doses of both ego and insecurity, and the downside of being able to google up all the things that people are saying about your book is that it can play right into your insecurities -- "all these people will have it in their minds not to bother with my book because they've read the negative interweb reviews!" But the flipside of that is the ego: "If only they'd give it a shot, they'd see how good it is." And the more scathing the review is, the more likely they are to give it a shot. Any press is good press, so long as they spell your URL right (and even if they spell your name wrong!). + +5. Ebooks need to embrace their nature. [Ebooks need to embrace their nature.] The distinctive value of ebooks is orthogonal to the value of paper books, and it revolves around the mix-ability and send-ability of electronic text. The more you constrain an ebook's distinctive value propositions -- that is, the more you restrict a reader's ability to copy, transport or transform an ebook -- the more it has to be valued on the same axes as a paper-book. Ebooks *{fail}* on those axes. Ebooks don't beat paper-books for sophisticated typography, they can't match them for quality of paper or the smell of the glue. But just try sending a paper book to a friend in Brazil, for free, in less than a second. Or loading a thousand paper books into a little stick of flash-memory dangling from your keychain. Or searching a paper book for every instance of a character's name to find a beloved passage. Hell, try clipping a pithy passage out of a paper book and pasting it into your sig-file. + +6. Ebooks demand a different attention span (but not a shorter one). [Ebooks demand a different attention span (but not a shorter one).] Artists are always disappointed by their audience's attention-spans. Go back far enough and you'll find cuneiform etchings bemoaning the current Sumerian go-go lifestyle with its insistence on myths with plotlines and characters and action, not like we had in the old days. As artists, it would be a hell of a lot easier if our audiences were more tolerant of our penchant for boring them. We'd get to explore a lot more ideas without worrying about tarting them up with easy-to-swallow chocolate coatings of entertainment. We like to think of shortened attention spans as a product of the information age, but check this out: + +group{ + +[Nietzsche quote] + +> To be sure one thing necessary above all: if one is to +> practice reading as an *art* in this way, something +> needs to be un-learned most thoroughly in these days. + +}group + +In other words, if my book is too boring, it's because you're not paying enough attention. Writers say this stuff all the time, but this quote isn't from this century or the last. [Nietzsche quote with attribution] It's from the preface to Nietzsche's "Genealogy of Morals," published in *{1887}*. + +Yeah, our attention-spans are *{different}* today, but they aren't necessarily *{shorter}*. Warren Ellis's fans managed to hold the storyline for Transmetropolitan [Transmet cover] in their minds for *{five years}* while the story trickled out in monthly funnybook installments. JK Rowlings's installments on the Harry Potter series get fatter and fatter with each new volume. Entire forests are sacrificed to long-running series fiction like Robert Jordan's Wheel of Time books, each of which is approximately 20,000 pages long (I may be off by an order of magnitude one way or another here). Sure, presidential debates are conducted in soundbites today and not the days-long oratory extravaganzas of the Lincoln-Douglas debates, but people manage to pay attention to the 24-month-long presidential campaigns from start to finish. + +7. We need *{all}* the ebooks. [We need *{all}* the ebooks] The vast majority of the words ever penned are lost to posterity. No one library collects all the still-extant books ever written and no one person could hope to make a dent in that corpus of written work. None of us will ever read more than the tiniest sliver of human literature. But that doesn't mean that we can stick with just the most popular texts and get a proper ebook revolution. + +For starters, we're all edge-cases. Sure, we all have the shared desire for the core canon of literature, but each of us want to complete that collection with different texts that are as distinctive and individualistic as fingerprints. If we all look like we're doing the same thing when we read, or listen to music, or hang out in a chatroom, that's because we're not looking closely enough. The shared-ness of our experience is only present at a coarse level of measurement: once you get into really granular observation, there are as many differences in our "shared" experience as there are similarities. + +More than that, though, is the way that a large collection of electronic text differs from a small one: it's the difference between a single book, a shelf full of books and a library of books. Scale makes things different. Take the Web: none of us can hope to read even a fraction of all the pages on the Web, but by analyzing the link structures that bind all those pages together, Google is able to actually tease out machine-generated conclusions about the relative relevance of different pages to different queries. None of us will ever eat the whole corpus, but Google can digest it for us and excrete the steaming nuggets of goodness that make it the search-engine miracle it is today. + +8. Ebooks are like paper books. [Ebooks are like paper books]. To round out this talk, I'd like to go over the ways that ebooks are more like paper books than you'd expect. One of the truisms of retail theory is that purchasers need to come into contact with a good several times before they buy -- seven contacts is tossed around as the magic number. That means that my readers have to hear the title, see the cover, pick up the book, read a review, and so forth, seven times, on average, before they're ready to buy. + +There's a temptation to view downloading a book as comparable to bringing it home from the store, but that's the wrong metaphor. Some of the time, maybe most of the time, downloading the text of the book is like taking it off the shelf at the store and looking at the cover and reading the blurbs (with the advantage of not having to come into contact with the residual DNA and burger king left behind by everyone else who browsed the book before you). Some writers are horrified at the idea that three hundred thousand copies of my first novel were downloaded and "only" ten thousand or so were sold so far. If it were the case that for ever copy sold, thirty were taken home from the store, that would be a horrifying outcome, for sure. But look at it another way: if one out of every thirty people who glanced at the cover of my book bought it, I'd be a happy author. And I am. Those downloads cost me no more than glances at the cover in a bookstore, and the sales are healthy. + +We also like to think of physical books as being inherently *{countable}* in a way that digital books aren't (an irony, since computers are damned good at counting things!). This is important, because writers get paid on the basis of the number of copies of their books that sell, so having a good count makes a difference. And indeed, my royalty statements contain precise numbers for copies printed, shipped, returned and sold. + +But that's a false precision. When the printer does a run of a book, it always runs a few extra at the start and finish of the run to make sure that the setup is right and to account for the occasional rip, drop, or spill. The actual total number of books printed is approximately the number of books ordered, but never exactly -- if you've ever ordered 500 wedding invitations, chances are you received 500-and-a-few back from the printer and that's why. + +And the numbers just get fuzzier from there. Copies are stolen. Copies are dropped. Shipping people get the count wrong. Some copies end up in the wrong box and go to a bookstore that didn't order them and isn't invoiced for them and end up on a sale table or in the trash. Some copies are returned as damaged. Some are returned as unsold. Some come back to the store the next morning accompanied by a whack of buyer's remorse. Some go to the place where the spare sock in the dryer ends up. + +The numbers on a royalty statement are actuarial, not actual. They represent a kind of best-guess approximation of the copies shipped, sold, returned and so forth. Actuarial accounting works pretty well: well enough to run the juggernaut banking, insurance, and gambling industries on. It's good enough for divvying up the royalties paid by musical rights societies for radio airplay and live performance. And it's good enough for counting how many copies of a book are distributed online or off. + +Counts of paper books are differently precise from counts of electronic books, sure: but neither one is inherently countable. + +And finally, of course, there's the matter of selling books. However an author earns her living from her words, printed or encoded, she has as her first and hardest task to find her audience. There are more competitors for our attention than we can possibly reconcile, prioritize or make sense of. Getting a book under the right person's nose, with the right pitch, is the hardest and most important task any writer faces. + +# + +I care about books, a lot. I started working in libraries and bookstores at the age of 12 and kept at it for a decade, until I was lured away by the siren song of the tech world. I knew I wanted to be a writer at the age of 12, and now, 20 years later, I have three novels, a short story collection and a nonfiction book out, two more novels under contract, and another book in the works. [BOOK COVERS] I've won a major award in my genre, science fiction, [CAMPBELL AWARD] and I'm nominated for another one, the 2003 Nebula Award for best novelette. [NEBULA] + +I own a *{lot}* of books. Easily more than 10,000 of them, in storage on both coasts of the North American continent [LIBRARY LADDER]. I have to own them, since they're the tools of my trade: the reference works I refer to as a novelist and writer today. Most of the literature I dig is very short-lived, it disappears from the shelf after just a few months, usually for good. Science fiction is inherently ephemeral. [ACE DOUBLES] + +Now, as much as I love books, I love computers, too. Computers are fundamentally different from modern books in the same way that printed books are different from monastic Bibles: they are malleable. Time was, a "book" was something produced by many months' labor by a scribe, usually a monk, on some kind of durable and sexy substrate like foetal lambskin. [ILLUMINATED BIBLE] Gutenberg's xerox machine changed all that, changed a book into something that could be simply run off a press in a few minutes' time, on substrate more suitable to ass-wiping than exaltation in a place of honor in the cathedral. The Gutenberg press meant that rather than owning one or two books, a member of the ruling class could amass a library, and that rather than picking only a few subjects from enshrinement in print, a huge variety of subjects could be addressed on paper and handed from person to person. [KAPITAL/TIJUANA BIBLE] + +Most new ideas start with a precious few certainties and a lot of speculation. I've been doing a bunch of digging for certainties and a lot of speculating lately, and the purpose of this talk is to lay out both categories of ideas. + +This all starts with my first novel, Down and Out in the Magic Kingdom [COVER], which came out on January 9, 2003. At that time, there was a lot of talk in my professional circles about, on the one hand, the dismal failure of ebooks, and, on the other, the new and scary practice of ebook "piracy." [alt.binaries.e-books screengrab] It was strikingly weird that no one seemed to notice that the idea of ebooks as a "failure" was at strong odds with the notion that electronic book "piracy" was worth worrying about: I mean, if ebooks are a failure, then who gives a rats if intarweb dweebs are trading them on Usenet? + +A brief digression here, on the double meaning of "ebooks." One meaning for that word is "legitimate" ebook ventures, that is to say, rightsholder-authorized editions of the texts of books, released in a proprietary, use-restricted format, sometimes for use on a general-purpose PC and sometimes for use on a special-purpose hardware device like the nuvoMedia Rocketbook [ROCKETBOOK]. The other meaning for ebook is a "pirate" or unauthorized electronic edition of a book, usually made by cutting the binding off of a book and scanning it a page at a time, then running the resulting bitmaps through an optical character recognition app to convert them into ASCII text, to be cleaned up by hand. These books are pretty buggy, full of errors introduced by the OCR. A lot of my colleagues worry that these books also have deliberate errors, created by mischievous book-rippers who cut, add or change text in order to "improve" the work. Frankly, I have never seen any evidence that any book-ripper is interested in doing this, and until I do, I think that this is the last thing anyone should be worrying about. + +Back to Down and Out in the Magic Kingdom [COVER]. Well, not yet. I want to convey to you the depth of the panic in my field over ebook piracy, or "bookwarez" as it is known in book-ripper circles. Writers were joining the discussion on alt.binaries.ebooks using assumed names, claiming fear of retaliation from scary hax0r kids who would presumably screw up their credit-ratings in retaliation for being called thieves. My editor, a blogger, hacker and guy-in-charge-of-the-largest-sf-line-in-the-world named Patrick Nielsen Hayden posted to one of the threads in the newsgroup, saying, in part [SCREENGRAB]: + +group{ + +> Pirating copyrighted etext on Usenet and elsewhere is going to +> happen more and more, for the same reasons that everyday folks +> make audio cassettes from vinyl LPs and audio CDs, and +> videocassette copies of store-bought videotapes. Partly it's +> greed; partly it's annoyance over retail prices; partly it's the +> desire to Share Cool Stuff (a motivation usually underrated by +> the victims of this kind of small-time hand-level piracy). +> Instantly going to Defcon One over it and claiming it's morally +> tantamount to mugging little old ladies in the street will make +> it kind of difficult to move forward from that position when it +> doesn't work. In the 1970s, the record industry shrieked that +> "home taping is killing music." It's hard for ordinary folks to +> avoid noticing that music didn't die. But the record industry's +> credibility on the subject wasn't exactly enhanced. + +}group + +Patrick and I have a long relationship, starting when I was 18 years old and he kicked in toward a scholarship fund to send me to a writers' workshop, continuing to a fateful lunch in New York in the mid-Nineties when I showed him a bunch of Project Gutenberg texts on my Palm Pilot and inspired him to start licensing Tor's titles for PDAs [PEANUTPRESS SCREENGRAB], to the turn-of-the-millennium when he bought and then published my first novel (he's bought three more since -- I really like Patrick!). + +Right as bookwarez newsgroups were taking off, I was shocked silly by legal action by one of my colleagues against AOL/Time-Warner for carrying the alt.binaries.ebooks newsgroup. This writer alleged that AOL should have a duty to remove this newsgroup, since it carried so many infringing files, and that its failure to do so made it a contributory infringer, and so liable for the incredibly stiff penalties afforded by our newly minted copyright laws like the No Electronic Theft Act and the loathsome Digital Millennium Copyright Act or DMCA. + +Now there was a scary thought: there were people out there who thought the world would be a better place if ISPs were given the duty of actively policing and censoring the websites and newsfeeds their customers had access to, including a requirement that ISPs needed to determine, all on their own, what was an unlawful copyright infringement -- something more usually left up to judges in the light of extensive amicus briefings from esteemed copyright scholars [WIND DONE GONE GRAPHIC]. + +This was a stupendously dumb idea, and it offended me down to my boots. Writers are supposed to be advocates of free expression, not censorship. It seemed that some of my colleagues loved the First Amendment, but they were reluctant to share it with the rest of the world. + +Well, dammit, I had a book coming out, and it seemed to be an opportunity to try to figure out a little more about this ebook stuff. On the one hand, ebooks were a dismal failure. On the other hand, there were more books posted to alt.binaries.ebooks every day. + +This leads me into the two certainties I have about ebooks: + +1. More people are reading more words off more screens every day [GRAPHIC] + +2. Fewer people are reading fewer words off fewer pages every day [GRAPHIC] + +These two certainties begged a lot of questions. + +[CHART: EBOOK FAILINGS] + +_* Screen resolutions are too low to effectively replace paper + +_* People want to own physical books because of their visceral appeal (often this is accompanied by a little sermonette on how good books smell, or how good they look on a bookshelf, or how evocative an old curry stain in the margin can be) + +_* You can't take your ebook into the tub + +_* You can't read an ebook without power and a computer + +_* File-formats go obsolete, paper has lasted for a long time + +None of these seemed like very good explanations for the "failure" of ebooks to me. If screen resolutions are too low to replace paper, then how come everyone I know spends more time reading off a screen every year, up to and including my sainted grandmother (geeks have a really crappy tendency to argue that certain technologies aren't ready for primetime because their grandmothers won't use them -- well, my grandmother sends me email all the time. She types 70 words per minute, and loves to show off grandsonular email to her pals around the pool at her Florida retirement condo)? + +The other arguments were a lot more interesting, though. It seemed to me that electronic books are *{different}* from paper books, and have different virtues and failings. Let's think a little about what the book has gone through in years gone by. This is interesting because the history of the book is the history of the Enlightenment, the Reformation, the Pilgrims, and, ultimately the colonizing of the Americas and the American Revolution. + +Broadly speaking, there was a time when books were hand-printed on rare leather by monks. The only people who could read them were priests, who got a regular eyeful of the really cool cartoons the monks drew in the margins. The priests read the books aloud, in Latin [LATIN BIBLE] (to a predominantly non-Latin-speaking audience) in cathedrals, wreathed in pricey incense that rose from censers swung by altar boys. + +Then Johannes Gutenberg invented the printing press. Martin Luther turned that press into a revolution. [LUTHER BIBLE] He printed Bibles in languages that non-priests could read, and distributed them to normal people who got to read the word of God all on their own. The rest, as they say, is history. + +Here are some interesting things to note about the advent of the printing press: + +[CHART: LUTHER VERSUS THE MONKS] + +_* Luther Bibles lacked the manufacturing quality of the illuminated Bibles. They were comparatively cheap and lacked the typographical expressiveness that a really talented monk could bring to bear when writing out the word of God + +_* Luther Bibles were utterly unsuited to the traditional use-case for Bibles. A good Bible was supposed to reinforce the authority of the man at the pulpit. It needed heft, it needed impressiveness, and most of all, it needed rarity. + +_* The user-experience of Luther Bibles sucked. There was no incense, no altar boys, and who (apart from the priesthood) knew that reading was so friggin' hard on the eyes? + +_* Luther Bibles were a lot less trustworthy than the illuminated numbers. Anyone with a press could run one off, subbing in any apocryphal text he wanted -- and who knew how accurate that translation was? Monks had an entire Papacy behind them, running a quality-assurance operation that had stood Europe in good stead for centuries. + +In the late nineties, I went to conferences where music execs patiently explained that Napster was doomed, because you didn't get any cover-art or liner-notes with it, you couldn't know if the rip was any good, and sometimes the connection would drop mid-download. I'm sure that many Cardinals espoused the points raised above with equal certainty. + +What the record execs and the cardinals missed was all the ways that Luther Bibles kicked ass: + +[CHART: WHY LUTHER BIBLES KICKED ASS] + +_* They were cheap and fast. Loads of people could acquire them without having to subject themselves to the authority and approval of the Church + +_* They were in languages that non-priests could read. You no longer had to take the Church's word for it when its priests explained what God really meant + +_* They birthed a printing-press ecosystem in which lots of books flourished. New kinds of fiction, poetry, politics, scholarship and so on were all enabled by the printing presses whose initial popularity was spurred by Luther's ideas about religion. + +Note that all of these virtues are orthogonal to the virtues of a monkish Bible. That is, none of the things that made the Gutenberg press a success were the things that made monk-Bibles a success. + +By the same token, the reasons to love ebooks have precious little to do with the reasons to love paper books. + +[CHART: WHY EBOOKS KICK ASS] + +_* They are easy to share. Secrets of Ya-Ya Sisterhood went from a midlist title to a bestseller by being passed from hand to hand by women in reading circles. Slashdorks and other netizens have social life as rich as reading-circlites, but they don't ever get to see each other face to face; the only kind of book they can pass from hand to hand is an ebook. What's more, the single factor most correlated with a purchase is a recommendation from a friend -- getting a book recommended by a pal is more likely to sell you on it than having read and enjoyed the preceding volume in a series! + +_* They are easy to slice and dice. This is where the Mac evangelist in me comes out -- minority platforms matter. It's a truism of the Napsterverse that most of the files downloaded are bog-standard top-40 tracks, like 90 percent or so, and I believe it. We all want to popular music. That's why it's popular. But the interesting thing is the other ten percent. Bill Gates told the New York Times that Microsoft lost the search wars by doing "a good job on the 80 percent of common queries and ignor[ing] the other stuff. But it's the remaining 20 percent that counts, because that's where the quality perception is." Why did Napster captivate so many of us? Not because it could get us the top-40 tracks that we could hear just by snapping on the radio: it was because 80 percent of the music ever recorded wasn't available for sale anywhere in the world, and in that 80 percent were all the songs that had ever touched us, all the earworms that had been lodged in our hindbrains, all the stuff that made us smile when we heard it. Those songs are different for all of us, but they share the trait of making the difference between a compelling service and, well, top-40 Clearchannel radio programming. It was the minority of tracks that appealed to the majority of us. By the same token, the malleability of electronic text means that it can be readily repurposed: you can throw it on a webserver or convert it to a format for your favorite PDA; you can ask your computer to read it aloud or you can search the text for a quotation to cite in a book report or to use in your sig. In other words, most people who download the book do so for the predictable reason, and in a predictable format -- say, to sample a chapter in the HTML format before deciding whether to buy the book -- but the thing that differentiates a boring e-text experience from an exciting one is the minority use -- printing out a couple chapters of the book to bring to the beach rather than risk getting the hardcopy wet and salty. + +Tool-makers and software designers are increasingly aware of the notion of "affordances" in design. You can bash a nail into the wall with any heavy, heftable object from a rock to a hammer to a cast-iron skillet. However, there's something about a hammer that cries out for nail-bashing, it has affordances that tilt its holder towards swinging it. And, as we all know, when all you have is a hammer, everything starts to look like a nail. + +The affordance of a computer -- the thing it's designed to do -- is to slice-and-dice collections of bits. The affordance of the Internet is to move bits at very high speed around the world at little-to-no cost. It follows from this that the center of the ebook experience is going to involve slicing and dicing text and sending it around. + +Copyright lawyers have a word for these activities: infringement. That's because copyright gives creators a near-total monopoly over copying and remixing of their work, pretty much forever (theoretically, copyright expires, but in actual practice, copyright gets extended every time the early Mickey Mouse cartoons are about to enter the public domain, because Disney swings a very big stick on the Hill). + +This is a huge problem. The biggest possible problem. Here's why: + +[CHART: HOW BROKEN COPYRIGHT SCREWS EVERYONE] + +_* Authors freak out. Authors have been schooled by their peers that strong copyright is the only thing that keeps them from getting savagely rogered in the marketplace. This is pretty much true: it's strong copyright that often defends authors from their publishers' worst excesses. However, it doesn't follow that strong copyright protects you from your *{readers}*. + +_* Readers get indignant over being called crooks. Seriously. You're a small businessperson. Readers are your customers. Calling them crooks is bad for business. + +_* Publishers freak out. Publishers freak out, because they're in the business of grabbing as much copyright as they can and hanging onto it for dear life because, dammit, you never know. This is why science fiction magazines try to trick writers into signing over improbable rights for things like theme park rides and action figures based on their work -- it's also why literary agents are now asking for copyright-long commissions on the books they represent: copyright covers so much ground and takes to long to shake off, who wouldn't want a piece of it? + +_* Liability goes through the roof. Copyright infringement, especially on the Net, is a supercrime. It carries penalties of $150,000 per infringement, and aggrieved rights-holders and their representatives have all kinds of special powers, like the ability to force an ISP to turn over your personal information before showing evidence of your alleged infringement to a judge. This means that anyone who suspects that he might be on the wrong side of copyright law is going to be terribly risk-averse: publishers non-negotiably force their authors to indemnify them from infringement claims and go one better, forcing writers to prove that they have "cleared" any material they quote, even in the case of brief fair-use quotations, like song-titles at the opening of chapters. The result is that authors end up assuming potentially life-destroying liability, are chilled from quoting material around them, and are scared off of public domain texts because an honest mistake about the public-domain status of a work carries such a terrible price. + +_* Posterity vanishes. In the Eldred v. Ashcroft Supreme Court hearing last year, the court found that 98 percent of the works in copyright are no longer earning money for anyone, but that figuring out who these old works belong to with the degree of certainty that you'd want when one mistake means total economic apocalypse would cost more than you could ever possibly earn on them. That means that 98 percent of works will largely expire long before the copyright on them does. Today, the names of science fiction's ancestral founders -- Mary Shelley, Arthur Conan Doyle, Edgar Allan Poe, Jules Verne, HG Wells -- are still known, their work still a part of the discourse. Their spiritual descendants from Hugo Gernsback onward may not be so lucky -- if their work continues to be "protected" by copyright, it might just vanish from the face of the earth before it reverts to the public domain. + +This isn't to say that copyright is bad, but that there's such a thing as good copyright and bad copyright, and that sometimes, too much good copyright is a bad thing. It's like chilis in soup: a little goes a long way, and too much spoils the broth. + +From the Luther Bible to the first phonorecords, from radio to the pulps, from cable to MP3, the world has shown that its first preference for new media is its "democratic-ness" -- the ease with which it can reproduced. + +(And please, before we get any farther, forget all that business about how the Internet's copying model is more disruptive than the technologies that proceeded it. For Christ's sake, the Vaudeville performers who sued Marconi for inventing the radio had to go from a regime where they had *{one hundred percent}* control over who could get into the theater and hear them perform to a regime where they had *{zero}* percent control over who could build or acquire a radio and tune into a recording of them performing. For that matter, look at the difference between a monkish Bible and a Luther Bible -- next to that phase-change, Napster is peanuts) + +Back to democratic-ness. Every successful new medium has traded off its artifact-ness -- the degree to which it was populated by bespoke hunks of atoms, cleverly nailed together by master craftspeople -- for ease of reproduction. Piano rolls weren't as expressive as good piano players, but they scaled better -- as did radio broadcasts, pulp magazines, and MP3s. Liner notes, hand illumination and leather bindings are nice, but they pale in comparison to the ability of an individual to actually get a copy of her own. + +Which isn't to say that old media die. Artists still hand-illuminate books; master pianists still stride the boards at Carnegie Hall, and the shelves burst with tell-all biographies of musicians that are richer in detail than any liner-notes booklet. The thing is, when all you've got is monks, every book takes on the character of a monkish Bible. Once you invent the printing press, all the books that are better-suited to movable type migrate into that new form. What's left behind are those items that are best suited to the old production scheme: the plays that *{need}* to be plays, the books that are especially lovely on creamy paper stitched between covers, the music that is most enjoyable performed live and experienced in a throng of humanity. + +Increased democratic-ness translates into decreased control: it's a lot harder to control who can copy a book once there's a photocopier on every corner than it is when you need a monastery and several years to copy a Bible. And that decreased control demands a new copyright regime that rebalances the rights of creators with their audiences. + +For example, when the VCR was invented, the courts affirmed a new copyright exemption for time-shifting; when the radio was invented, the Congress granted an anti-trust exemption to the record labels in order to secure a blanket license; when cable TV was invented, the government just ordered the broadcasters to sell the cable-operators access to programming at a fixed rate. + +Copyright is perennially out of date, because its latest rev was generated in response to the last generation of technology. The temptation to treat copyright as though it came down off the mountain on two stone tablets (or worse, as "just like" real property) is deeply flawed, since, by definition, current copyright only considers the last generation of tech. + +So, are bookwarez in violation of copyright law? Duh. Is this the end of the world? *{Duh}*. If the Catholic church can survive the printing press, science fiction will certainly weather the advent of bookwarez. + +# + +Lagniappe [Lagniappe] + +We're almost done here, but there's one more thing I'd like to do before I get off the stage. [Lagniappe: an unexpected bonus or extra] Think of it as a "lagniappe" -- a little something extra to thank you for your patience. + +About a year ago, I released my first novel, Down and Out in the Magic Kingdom, on the net, under the terms of the most restrictive Creative Commons license available. All it allowed my readers to do was send around copies of the book. I was cautiously dipping my toe into the water, though at the time, it felt like I was taking a plunge. + +Now I'm going to take a plunge. Today, I will re-license the text of Down and Out in the Magic Kingdom under a Creative Commons "Attribution-ShareAlike-Derivs-Noncommercial" license [HUMAN READABLE LICENSE], which means that as of today, you have my blessing to create derivative works from my first book. You can make movies, audiobooks, translations, fan-fiction, slash fiction (God help us) [GEEK HIERARCHY], furry slash fiction [GEEK HIERARCHY DETAIL], poetry, translations, t-shirts, you name it, with two provisos: that one, you have to allow everyone else to rip, mix and burn your creations in the same way you're hacking mine; and on the other hand, you've got to do it noncommercially. + +The sky didn't fall when I dipped my toe in. Let's see what happens when I get in up to my knees. + +The text with the new license will be online before the end of the day. Check craphound.com/down for details. + +Oh, and I'm also releasing the text of this speech under a Creative Commons Public Domain dedication, [Public domain dedication] giving it away to the world to do with as it see fits. It'll be linked off my blog, Boing Boing, before the day is through. + +$$$$ + +1~ Free(konomic) E-books + +(Originally published in Locus Magazine, September 2007) ~# + +Can giving away free electronic books really sell printed books? I think so. As I explained in my March column ("You Do Like Reading Off a Computer Screen"), I don't believe that most readers want to read long-form works off a screen, and I don't believe that they will ever want to read long-form works off a screen. As I say in the column, the problem with reading off a screen isn't resolution, eyestrain, or compatibility with reading in the bathtub: it's that computers are seductive, they tempt us to do other things, making concentrating on a long-form work impractical. + +Sure, some readers have the cognitive quirk necessary to read full-length works off screens, or are motivated to do so by other circumstances (such as being so broke that they could never hope to buy the printed work). The rational question isn't, "Will giving away free e-books cost me sales?" but rather, "Will giving away free e-books win me more sales than it costs me?" + +This is a very hard proposition to evaluate in a quantitative way. Books aren't lattes or cable-knit sweaters: each book sells (or doesn't) due to factors that are unique to that title. It's hard to imagine an empirical, controlled study in which two "equivalent" books are published, and one is also available as a free download, the other not, and the difference calculated as a means of "proving" whether e-books hurt or help sales in the long run. + +I've released all of my novels as free downloads simultaneous with their print publication. If I had a time machine, I could re-release them without the free downloads and compare the royalty statements. Lacking such a device, I'm forced to draw conclusions from qualitative, anecdotal evidence, and I've collected plenty of that: + +_* Many writers have tried free e-book releases to tie in with the print release of their works. To the best of my knowledge, every writer who's tried this has repeated the experiment with future works, suggesting a high degree of satisfaction with the outcomes + +_* A writer friend of mine had his first novel come out at the same time as mine. We write similar material and are often compared to one another by critics and reviewers. My first novel had a free download, his didn't. We compared sales figures and I was doing substantially better than him -- he subsequently convinced his publisher to let him follow suit + +_* Baen Books has a pretty good handle on expected sales for new volumes in long-running series; having sold many such series, they have lots of data to use in sales estimates. If Volume N sells X copies, we expect Volume N+1 to sell Y copies. They report that they have seen a measurable uptick in sales following from free e-book releases of previous and current volumes + +_* David Blackburn, a Harvard PhD candidate in economics, published a paper in 2004 in which he calculated that, for music, "piracy" results in a net increase in sales for all titles in the 75th percentile and lower; negligible change in sales for the "middle class" of titles between the 75th percentile and the 97th percentile; and a small drag on the "super-rich" in the 97th percentile and higher. Publisher Tim O'Reilly describes this as "piracy's progressive taxation," apportioning a small wealth-redistribution to the vast majority of works, no net change to the middle, and a small cost on the richest few + +_* Speaking of Tim O'Reilly, he has just published a detailed, quantitative study of the effect of free downloads on a single title. O'Reilly Media published Asterisk: The Future of Telephony, in November 2005, simultaneously releasing the book as a free download. By March 2007, they had a pretty detailed picture of the sales-cycle of this book -- and, thanks to industry standard metrics like those provided by Bookscan, they could compare it, apples-to-apples style, against the performance of competing books treating with the same subject. O'Reilly's conclusion: downloads didn't cause a decline in sales, and appears to have resulted in a lift in sales. This is particularly noteworthy because the book in question is a technical reference work, exclusively consumed by computer programmers who are by definition disposed to read off screens. Also, this is a reference work and therefore is more likely to be useful in electronic form, where it can be easily searched + +_* In my case, my publishers have gone back to press repeatedly for my books. The print runs for each edition are modest -- I'm a midlist writer in a world with a shrinking midlist -- but publishers print what they think they can sell, and they're outselling their expectations + +_* The new opportunities arising from my free downloads are so numerous as to be uncountable -- foreign rights deals, comic book licenses, speaking engagements, article commissions -- I've made more money in these secondary markets than I have in royalties + +_* More anecdotes: I've had literally thousands of people approach me by e-mail and at signings and cons to say, "I found your work online for free, got hooked, and started buying it." By contrast, I've had all of five e-mails from people saying, "Hey, idiot, thanks for the free book, now I don't have to buy the print edition, ha ha!" + +Many of us have assumed, a priori, that electronic books substitute for print books. While I don't have controlled, quantitative data to refute the proposition, I do have plenty of experience with this stuff, and all that experience leads me to believe that giving away my books is selling the hell out of them. + +More importantly, the free e-book skeptics have no evidence to offer in support of their position -- just hand-waving and dark muttering about a mythological future when book-lovers give up their printed books for electronic book-readers (as opposed to the much more plausible future where book lovers go on buying their fetish objects and carry books around on their electronic devices). + +I started giving away e-books after I witnessed the early days of the "bookwarez" scene, wherein fans cut the binding off their favorite books, scanned them, ran them through optical character recognition software, and manually proofread them to eliminate the digitization errors. These fans were easily spending 80 hours to rip their favorite books, and they were only ripping their favorite books, books they loved and wanted to share. (The 80-hour figure comes from my own attempt to do this -- I'm sure that rippers get faster with practice.) + +I thought to myself that 80 hours' free promotional effort would be a good thing to have at my disposal when my books entered the market. What if I gave my readers clean, canonical electronic editions of my works, saving them the bother of ripping them, and so freed them up to promote my work to their friends? + +After all, it's not like there's any conceivable way to stop people from putting books on scanners if they really want to. Scanners aren't going to get more expensive or slower. The Internet isn't going to get harder to use. Better to confront this challenge head on, turn it into an opportunity, than to rail against the future (I'm a science fiction writer -- tuning into the future is supposed to be my metier). + +The timing couldn't have been better. Just as my first novel was being published, a new, high-tech project for promoting sharing of creative works launched: the Creative Commons project (CC). CC offers a set of tools that make it easy to mark works with whatever freedoms the author wants to give away. CC launched in 2003 and today, more than 160,000,000 works have been released under its licenses. + +My next column will go into more detail on what CC is, what licenses it offers, and how to use them -- but for now, check them out online at creativecommons.org. + +$$$$ + +1~ The Progressive Apocalypse and Other Futurismic Delights + +(Originally published in Locus Magazine, July 2007) ~# + +Of course, science fiction is a literature of the present. Many's the science fiction writer who uses the future as a warped mirror for reflecting back the present day, angled to illustrate the hidden strangeness buried by our invisible assumptions: Orwell turned 1948 into Nineteen Eighty-Four. But even when the fictional future isn't a parable about the present day, it is necessarily a creation of the present day, since it reflects the present day biases that infuse the author. Hence Asimov's Foundation, a New Deal-esque project to think humanity out of its tribulations though social interventionism. + +Bold SF writers eschew the future altogether, embracing a futuristic account of the present day. William Gibson's forthcoming Spook Country is an act of "speculative presentism," a book so futuristic it could only have been set in 2006, a book that exploits retrospective historical distance to let us glimpse just how alien and futuristic our present day is. + +Science fiction writers aren't the only people in the business of predicting the future. Futurists -- consultants, technology columnists, analysts, venture capitalists, and entrepreneurial pitchmen -- spill a lot of ink, phosphors, and caffeinated hot air in describing a vision for a future where we'll get more and more of whatever it is they want to sell us or warn us away from. Tomorrow will feature faster, cheaper processors, more Internet users, ubiquitous RFID tags, radically democratic political processes dominated by bloggers, massively multiplayer games whose virtual economies dwarf the physical economy. + +There's a lovely neologism to describe these visions: "futurismic." Futurismic media is that which depicts futurism, not the future. It is often self-serving -- think of the antigrav Nikes in Back to the Future III -- and it generally doesn't hold up well to scrutiny. + +SF films and TV are great fonts of futurismic imagery: R2D2 is a fully conscious AI, can hack the firewall of the Death Star, and is equipped with a range of holographic projectors and antipersonnel devices -- but no one has installed a $15 sound card and some text-to-speech software on him, so he has to whistle like Harpo Marx. Or take the Starship Enterprise, with a transporter capable of constituting matter from digitally stored plans, and radios that can breach the speed of light. + +The non-futurismic version of NCC-1701 would be the size of a softball (or whatever the minimum size for a warp drive, transporter, and subspace radio would be). It would zip around the galaxy at FTL speeds under remote control. When it reached an interesting planet, it would beam a stored copy of a landing party onto the surface, and when their mission was over, it would beam them back into storage, annihilating their physical selves until they reached the next stopping point. If a member of the landing party were eaten by a green-skinned interspatial hippie or giant toga-wearing galactic tyrant, that member would be recovered from backup by the transporter beam. Hell, the entire landing party could consist of multiple copies of the most effective crewmember onboard: no redshirts, just a half-dozen instances of Kirk operating in clonal harmony. + +Futurism has a psychological explanation, as recounted in Harvard clinical psych prof Daniel Gilbert's 2006 book, Stumbling on Happiness. Our memories and our projections of the future are necessarily imperfect. Our memories consist of those observations our brains have bothered to keep records of, woven together with inference and whatever else is lying around handy when we try to remember something. Ask someone who's eating a great lunch how breakfast was, and odds are she'll tell you it was delicious. Ask the same question of someone eating rubbery airplane food, and he'll tell you his breakfast was awful. We weave the past out of our imperfect memories and our observable present. + +We make the future in much the same way: we use reasoning and evidence to predict what we can, and whenever we bump up against uncertainty, we fill the void with the present day. Hence the injunction on women soldiers in the future of Starship Troopers, or the bizarre, glassed-over "Progressland" city diorama at the end of the 1964 World's Fair exhibit The Carousel of Progress, which Disney built for GE. + +Lapsarianism -- the idea of a paradise lost, a fall from grace that makes each year worse than the last -- is the predominant future feeling for many people. It's easy to see why: an imperfectly remembered golden childhood gives way to the worries of adulthood and physical senescence. Surely the world is getting worse: nothing tastes as good as it did when we were six, everything hurts all the time, and our matured gonads drive us into frenzies of bizarre, self-destructive behavior. + +Lapsarianism dominates the Abrahamic faiths. I have an Orthodox Jewish friend whose tradition holds that each generation of rabbis is necessarily less perfect than the rabbis that came before, since each generation is more removed from the perfection of the Garden. Therefore, no rabbi is allowed to overturn any of his forebears' wisdom, since they are all, by definition, smarter than him. + +The natural endpoint of Lapsarianism is apocalypse. If things get worse, and worse, and worse, eventually they'll just run out of worseness. Eventually, they'll bottom out, a kind of rotten death of the universe when Lapsarian entropy hits the nadir and takes us all with it. + +Running counter to Lapsarianism is progressivism: the Enlightenment ideal of a world of great people standing on the shoulders of giants. Each of us contributes to improving the world's storehouse of knowledge (and thus its capacity for bringing joy to all of us), and our descendants and proteges take our work and improve on it. The very idea of "progress" runs counter to the idea of Lapsarianism and the fall: it is the idea that we, as a species, are falling in reverse, combing back the wild tangle of entropy into a neat, tidy braid. + +Of course, progress must also have a boundary condition -- if only because we eventually run out of imaginary ways that the human condition can improve. And science fiction has a name for the upper bound of progress, a name for the progressive apocalypse: + +We call it the Singularity. + +Vernor Vinge's Singularity takes place when our technology reaches a stage that allows us to "upload" our minds into software, run them at faster, hotter speeds than our neurological wetware substrate allows for, and create multiple, parallel instances of ourselves. After the Singularity, nothing is predictable because everything is possible. We will cease to be human and become (as the title of Rudy Rucker's next novel would have it) Postsingular. + +The Singularity is what happens when we have so much progress that we run out of progress. It's the apocalypse that ends the human race in rapture and joy. Indeed, Ken MacLeod calls the Singularity "the rapture of the nerds," an apt description for the mirror-world progressive version of the Lapsarian apocalypse. + +At the end of the day, both progress and the fall from grace are illusions. The central thesis of Stumbling on Happiness is that human beings are remarkably bad at predicting what will make us happy. Our predictions are skewed by our imperfect memories and our capacity for filling the future with the present day. + +The future is gnarlier than futurism. NCC-1701 probably wouldn't send out transporter-equipped drones -- instead, it would likely find itself on missions whose ethos, mores, and rationale are largely incomprehensible to us, and so obvious to its crew that they couldn't hope to explain them. + +Science fiction is the literature of the present, and the present is the only era that we can hope to understand, because it's the only era that lets us check our observations and predictions against reality. + +$$$$ + +1~ When the Singularity is More Than a Literary Device: An Interview with Futurist-Inventor Ray Kurzweil + +(Originally published in Asimov's Science Fiction Magazine, June 2005) ~# + +It's not clear to me whether the Singularity is a technical belief system or a spiritual one. + +The Singularity -- a notion that's crept into a lot of skiffy, and whose most articulate in-genre spokesmodel is Vernor Vinge -- describes the black hole in history that will be created at the moment when human intelligence can be digitized. When the speed and scope of our cognition is hitched to the price-performance curve of microprocessors, our "progress" will double every eighteen months, and then every twelve months, and then every ten, and eventually, every five seconds. + +Singularities are, literally, holes in space from whence no information can emerge, and so SF writers occasionally mutter about how hard it is to tell a story set after the information Singularity. Everything will be different. What it means to be human will be so different that what it means to be in danger, or happy, or sad, or any of the other elements that make up the squeeze-and-release tension in a good yarn will be unrecognizable to us pre-Singletons. + +It's a neat conceit to write around. I've committed Singularity a couple of times, usually in collaboration with gonzo Singleton Charlie Stross, the mad antipope of the Singularity. But those stories have the same relation to futurism as romance novels do to love: a shared jumping-off point, but radically different morphologies. + +Of course, the Singularity isn't just a conceit for noodling with in the pages of the pulps: it's the subject of serious-minded punditry, futurism, and even science. + +Ray Kurzweil is one such pundit-futurist-scientist. He's a serial entrepreneur who founded successful businesses that advanced the fields of optical character recognition (machine-reading) software, text-to-speech synthesis, synthetic musical instrument simulation, computer-based speech recognition, and stock-market analysis. He cured his own Type-II diabetes through a careful review of the literature and the judicious application of first principles and reason. To a casual observer, Kurzweil appears to be the star of some kind of Heinlein novel, stealing fire from the gods and embarking on a quest to bring his maverick ideas to the public despite the dismissals of the establishment, getting rich in the process. + +Kurzweil believes in the Singularity. In his 1990 manifesto, "The Age of Intelligent Machines," Kurzweil persuasively argued that we were on the brink of meaningful machine intelligence. A decade later, he continued the argument in a book called The Age of Spiritual Machines, whose most audacious claim is that the world's computational capacity has been slowly doubling since the crust first cooled (and before!), and that the doubling interval has been growing shorter and shorter with each passing year, so that now we see it reflected in the computer industry's Moore's Law, which predicts that microprocessors will get twice as powerful for half the cost about every eighteen months. The breathtaking sweep of this trend has an obvious conclusion: computers more powerful than people; more powerful than we can comprehend. + +Now Kurzweil has published two more books, The Singularity Is Near, When Humans Transcend Biology (Viking, Spring 2005) and Fantastic Voyage: Live Long Enough to Live Forever (with Terry Grossman, Rodale, November 2004). The former is a technological roadmap for creating the conditions necessary for ascent into Singularity; the latter is a book about life-prolonging technologies that will assist baby-boomers in living long enough to see the day when technological immortality is achieved. + +See what I meant about his being a Heinlein hero? + +I still don't know if the Singularity is a spiritual or a technological belief system. It has all the trappings of spirituality, to be sure. If you are pure and kosher, if you live right and if your society is just, then you will live to see a moment of Rapture when your flesh will slough away leaving nothing behind but your ka, your soul, your consciousness, to ascend to an immortal and pure state. + +I wrote a novel called Down and Out in the Magic Kingdom where characters could make backups of themselves and recover from them if something bad happened, like catching a cold or being assassinated. It raises a lot of existential questions: most prominently: are you still you when you've been restored from backup? + +The traditional AI answer is the Turing Test, invented by Alan Turing, the gay pioneer of cryptography and artificial intelligence who was forced by the British government to take hormone treatments to "cure" him of his homosexuality, culminating in his suicide in 1954. Turing cut through the existentialism about measuring whether a machine is intelligent by proposing a parlor game: a computer sits behind a locked door with a chat program, and a person sits behind another locked door with his own chat program, and they both try to convince a judge that they are real people. If the computer fools a human judge into thinking that it's a person, then to all intents and purposes, it's a person. + +So how do you know if the backed-up you that you've restored into a new body -- or a jar with a speaker attached to it -- is really you? Well, you can ask it some questions, and if it answers the same way that you do, you're talking to a faithful copy of yourself. + +Sounds good. But the me who sent his first story into Asimov's seventeen years ago couldn't answer the question, "Write a story for Asimov's" the same way the me of today could. Does that mean I'm not me anymore? + +Kurzweil has the answer. + +"If you follow that logic, then if you were to take me ten years ago, I could not pass for myself in a Ray Kurzweil Turing Test. But once the requisite uploading technology becomes available a few decades hence, you could make a perfect-enough copy of me, and it would pass the Ray Kurzweil Turing Test. The copy doesn't have to match the quantum state of my every neuron, either: if you meet me the next day, I'd pass the Ray Kurzweil Turing Test. Nevertheless, none of the quantum states in my brain would be the same. There are quite a few changes that each of us undergo from day to day, we don't examine the assumption that we are the same person closely. + +"We gradually change our pattern of atoms and neurons but we very rapidly change the particles the pattern is made up of. We used to think that in the brain -- the physical part of us most closely associated with our identity -- cells change very slowly, but it turns out that the components of the neurons, the tubules and so forth, turn over in only days. I'm a completely different set of particles from what I was a week ago. + +"Consciousness is a difficult subject, and I'm always surprised by how many people talk about consciousness routinely as if it could be easily and readily tested scientifically. But we can't postulate a consciousness detector that does not have some assumptions about consciousness built into it. + +"Science is about objective third party observations and logical deductions from them. Consciousness is about first-person, subjective experience, and there's a fundamental gap there. We live in a world of assumptions about consciousness. We share the assumption that other human beings are conscious, for example. But that breaks down when we go outside of humans, when we consider, for example, animals. Some say only humans are conscious and animals are instinctive and machinelike. Others see humanlike behavior in an animal and consider the animal conscious, but even these observers don't generally attribute consciousness to animals that aren't humanlike. + +"When machines are complex enough to have responses recognizable as emotions, those machines will be more humanlike than animals." + +The Kurzweil Singularity goes like this: computers get better and smaller. Our ability to measure the world gains precision and grows ever cheaper. Eventually, we can measure the world inside the brain and make a copy of it in a computer that's as fast and complex as a brain, and voila, intelligence. + +Here in the twenty-first century we like to view ourselves as ambulatory brains, plugged into meat-puppets that lug our precious grey matter from place to place. We tend to think of that grey matter as transcendently complex, and we think of it as being the bit that makes us us. + +But brains aren't that complex, Kurzweil says. Already, we're starting to unravel their mysteries. + +"We seem to have found one area of the brain closely associated with higher-level emotions, the spindle cells, deeply embedded in the brain. There are tens of thousands of them, spanning the whole brain (maybe eighty thousand in total), which is an incredibly small number. Babies don't have any, most animals don't have any, and they likely only evolved over the last million years or so. Some of the high-level emotions that are deeply human come from these. + +"Turing had the right insight: base the test for intelligence on written language. Turing Tests really work. A novel is based on language: with language you can conjure up any reality, much more so than with images. Turing almost lived to see computers doing a good job of performing in fields like math, medical diagnosis and so on, but those tasks were easier for a machine than demonstrating even a child's mastery of language. Language is the true embodiment of human intelligence." + +If we're not so complex, then it's only a matter of time until computers are more complex than us. When that comes, our brains will be model-able in a computer and that's when the fun begins. That's the thesis of Spiritual Machines, which even includes a (Heinlein-style) timeline leading up to this day. + +Now, it may be that a human brain contains n logic-gates and runs at x cycles per second and stores z petabytes, and that n and x and z are all within reach. It may be that we can take a brain apart and record the position and relationships of all the neurons and sub-neuronal elements that constitute a brain. + +But there are also a nearly infinite number of ways of modeling a brain in a computer, and only a finite (or possibly nonexistent) fraction of that space will yield a conscious copy of the original meat-brain. Science fiction writers usually hand-wave this step: in Heinlein's "Man Who Sold the Moon," the gimmick is that once the computer becomes complex enough, with enough "random numbers," it just wakes up. + +Computer programmers are a little more skeptical. Computers have never been known for their skill at programming themselves -- they tend to be no smarter than the people who write their software. + +But there are techniques for getting computers to program themselves, based on evolution and natural selection. A programmer creates a system that spits out lots -- thousands or even millions -- of randomly generated programs. Each one is given the opportunity to perform a computational task (say, sorting a list of numbers from greatest to least) and the ones that solve the problem best are kept aside while the others are erased. Now the survivors are used as the basis for a new generation of randomly mutated descendants, each based on elements of the code that preceded them. By running many instances of a randomly varied program at once, and by culling the least successful and regenerating the population from the winners very quickly, it is possible to evolve effective software that performs as well or better than the code written by human authors. + +Indeed, evolutionary computing is a promising and exciting field that's realizing real returns through cool offshoots like "ant colony optimization" and similar approaches that are showing good results in fields as diverse as piloting military UAVs and efficiently provisioning car-painting robots at automotive plants. + +So if you buy Kurzweil's premise that computation is getting cheaper and more plentiful than ever, then why not just use evolutionary algorithms to evolve the best way to model a scanned-in human brain such that it "wakes up" like Heinlein's Mike computer? + +Indeed, this is the crux of Kurzweil's argument in Spiritual Machines: if we have computation to spare and a detailed model of a human brain, we need only combine them and out will pop the mechanism whereby we may upload our consciousness to digital storage media and transcend our weak and bothersome meat forever.Indeed, this is the crux of Kurzweil's argument in Spiritual Machines: if we have computation to spare and a detailed model of a human brain, we need only combine them and out will pop the mechanism whereby we may upload our consciousness to digital storage media and transcend our weak and bothersome meat forever. + +But it's a cheat. Evolutionary algorithms depend on the same mechanisms as real-world evolution: heritable variation of candidates and a system that culls the least-suitable candidates. This latter -- the fitness-factor that determines which individuals in a cohort breed and which vanish -- is the key to a successful evolutionary system. Without it, there's no pressure for the system to achieve the desired goal: merely mutation and more mutation. + +But how can a machine evaluate which of a trillion models of a human brain is "most like" a conscious mind? Or better still: which one is most like the individual whose brain is being modeled? + +"It is a sleight of hand in Spiritual Machines," Kurzweil admits. "But in The Singularity Is Near, I have an in-depth discussion about what we know about the brain and how to model it. Our tools for understanding the brain are subject to the Law of Accelerating Returns, and we've made more progress in reverse-engineering the human brain than most people realize." This is a tasty Kurzweilism that observes that improvements in technology yield tools for improving technology, round and round, so that the thing that progress begets more than anything is more and yet faster progress. + +"Scanning resolution of human tissue -- both spatial and temporal -- is doubling every year, and so is our knowledge of the workings of the brain. The brain is not one big neural net, the brain is several hundred different regions, and we can understand each region, we can model the regions with mathematics, most of which have some nexus with chaos and self-organizing systems. This has already been done for a couple dozen regions out of the several hundred. + +"We have a good model of a dozen or so regions of the auditory and visual cortex, how we strip images down to very low-resolution movies based on pattern recognition. Interestingly, we don't actually see things, we essentially hallucinate them in detail from what we see from these low resolution cues. Past the early phases of the visual cortex, detail doesn't reach the brain. + +"We are getting exponentially more knowledge. We can get detailed scans of neurons working in vivo, and are beginning to understand the chaotic algorithms underlying human intelligence. In some cases, we are getting comparable performance of brain regions in simulation. These tools will continue to grow in detail and sophistication. + +"We can have confidence of reverse-engineering the brain in twenty years or so. The reason that brain reverse engineering has not contributed much to artificial intelligence is that up until recently we didn't have the right tools. If I gave you a computer and a few magnetic sensors and asked you to reverse-engineer it, you might figure out that there's a magnetic device spinning when a file is saved, but you'd never get at the instruction set. Once you reverse-engineer the computer fully, however, you can express its principles of operation in just a few dozen pages. + +"Now there are new tools that let us see the interneuronal connections and their signaling, in vivo, and in real-time. We're just now getting these tools and there's very rapid application of the tools to obtain the data. + +"Twenty years from now we will have realistic simulations and models of all the regions of the brain and [we will] understand how they work. We won't blindly or mindlessly copy those methods, we will understand them and use them to improve our AI toolkit. So we'll learn how the brain works and then apply the sophisticated tools that we will obtain, as we discover how the brain works. + +"Once we understand a subtle science principle, we can isolate, amplify, and expand it. Air goes faster over a curved surface: from that insight we isolated, amplified, and expanded the idea and invented air travel. We'll do the same with intelligence. + +"Progress is exponential -- not just a measure of power of computation, number of Internet nodes, and magnetic spots on a hard disk -- the rate of paradigm shift is itself accelerating, doubling every decade. Scientists look at a problem and they intuitively conclude that since we've solved 1 percent over the last year, it'll therefore be one hundred years until the problem is exhausted: but the rate of progress doubles every decade, and the power of the information tools (in price-performance, resolution, bandwidth, and so on) doubles every year. People, even scientists, don't grasp exponential growth. During the first decade of the human genome project, we only solved 2 percent of the problem, but we solved the remaining 98 percent in five years." + +But Kurzweil doesn't think that the future will arrive in a rush. As William Gibson observed, "The future is here, it's just not evenly distributed." + +"Sure, it'd be interesting to take a human brain, scan it, reinstantiate the brain, and run it on another substrate. That will ultimately happen." + +"But the most salient scenario is that we'll gradually merge with our technology. We'll use nanobots to kill pathogens, then to kill cancer cells, and then they'll go into our brain and do benign things there like augment our memory, and very gradually they'll get more and more sophisticated. There's no single great leap, but there is ultimately a great leap comprised of many small steps. + +"In The Singularity Is Near, I describe the radically different world of 2040, and how we'll get there one benign change at a time. The Singularity will be gradual, smooth. + +"Really, this is about augmenting our biological thinking with nonbiological thinking. We have a capacity of 1026 to 1029 calculations per second (cps) in the approximately 1010 biological human brains on Earth and that number won't change much in fifty years, but nonbiological thinking will just crash through that. By 2049, nonbiological thinking capacity will be on the order of a billion times that. We'll get to the point where bio thinking is relatively insignificant. + +"People didn't throw their typewriters away when word-processing started. There's always an overlap -- it'll take time before we realize how much more powerful nonbiological thinking will ultimately be." + +It's well and good to talk about all the stuff we can do with technology, but it's a lot more important to talk about the stuff we'll be allowed to do with technology. Think of the global freak-out caused by the relatively trivial advent of peer-to-peer file-sharing tools: Universities are wiretapping their campuses and disciplining computer science students for writing legitimate, general purpose software; grandmothers and twelve-year-olds are losing their life savings; privacy and due process have sailed out the window without so much as a by-your-leave. + +Even P2P's worst enemies admit that this is a general-purpose technology with good and bad uses, but when new tech comes along it often engenders a response that countenances punishing an infinite number of innocent people to get at the guilty. + +What's going to happen when the new technology paradigm isn't song-swapping, but transcendent super-intelligence? Will the reactionary forces be justified in razing the whole ecosystem to eliminate a few parasites who are doing negative things with the new tools? + +"Complex ecosystems will always have parasites. Malware [malicious software] is the most important battlefield today. + +"Everything will become software -- objects will be malleable, we'll spend lots of time in VR, and computhought will be orders of magnitude more important than biothought. + +"Software is already complex enough that we have an ecological terrain that has emerged just as it did in the bioworld. + +"That's partly because technology is unregulated and people have access to the tools to create malware and the medicine to treat it. Today's software viruses are clever and stealthy and not simpleminded. Very clever. + +"But here's the thing: you don't see people advocating shutting down the Internet because malware is so destructive. I mean, malware is potentially more than a nuisance -- emergency systems, air traffic control, and nuclear reactors all run on vulnerable software. It's an important issue, but the potential damage is still a tiny fraction of the benefit we get from the Internet. + +"I hope it'll remain that way -- that the Internet won't become a regulated space like medicine. Malware's not the most important issue facing human society today. Designer bioviruses are. People are concerted about WMDs, but the most daunting WMD would be a designed biological virus. The means exist in college labs to create destructive viruses that erupt and spread silently with long incubation periods. + +"Importantly, a would-be bio-terrorist doesn't have to put malware through the FDA's regulatory approval process, but scientists working to fix bio-malware do. + +"In Huxley's Brave New World, the rationale for the totalitarian system was that technology was too dangerous and needed to be controlled. But that just pushes technology underground where it becomes less stable. Regulation gives the edge of power to the irresponsible who won't listen to the regulators anyway. + +"The way to put more stones on the defense side of the scale is to put more resources into defensive technologies, not create a totalitarian regime of Draconian control. + +"I advocate a one hundred billion dollar program to accelerate the development of anti-biological virus technology. The way to combat this is to develop broad tools to destroy viruses. We have tools like RNA interference, just discovered in the past two years to block gene expression. We could develop means to sequence the genes of a new virus (SARS only took thirty-one days) and respond to it in a matter of days. + +"Think about it. There's no FDA for software, no certification for programmers. The government is thinking about it, though! The reason the FCC is contemplating Trusted Computing mandates," -- a system to restrict what a computer can do by means of hardware locks embedded on the motherboard -- "is that computing technology is broadening to cover everything. So now you have communications bureaucrats, biology bureaucrats, all wanting to regulate computers. + +"Biology would be a lot more stable if we moved away from regulation -- which is extremely irrational and onerous and doesn't appropriately balance risks. Many medications are not available today even though they should be. The FDA always wants to know what happens if we approve this and will it turn into a thalidomide situation that embarrasses us on CNN? + +"Nobody asks about the harm that will certainly accrue from delaying a treatment for one or more years. There's no political weight at all, people have been dying from diseases like heart disease and cancer for as long as we've been alive. Attributable risks get 100-1000 times more weight than unattributable risks." + +Is this spirituality or science? Perhaps it is the melding of both -- more shades of Heinlein, this time the weird religions founded by people who took Stranger in a Strange Land way too seriously. + +After all, this is a system of belief that dictates a means by which we can care for our bodies virtuously and live long enough to transcend them. It is a system of belief that concerns itself with the meddling of non-believers, who work to undermine its goals through irrational systems predicated on their disbelief. It is a system of belief that asks and answers the question of what it means to be human. + +It's no wonder that the Singularity has come to occupy so much of the science fiction narrative in these years. Science or spirituality, you could hardly ask for a subject better tailored to technological speculation and drama. + +$$$$ + +1~ Wikipedia: a genuine Hitchhikers' Guide to the Galaxy -- minus the editors + +(Originally published in The Anthology at the End of the Universe, April 2005) ~# + +"Mostly Harmless" -- a phrase so funny that Adams actually titled a book after it. Not that there's a lot of comedy inherent in those two words: rather, they're the punchline to a joke that anyone who's ever written for publication can really get behind. + +Ford Prefect, a researcher for the Hitchhiker's Guide to the Galaxy, has been stationed on Earth for years, painstakingly compiling an authoritative, insightful entry on Terran geography, science and culture, excerpts from which appear throughout the H2G2 books. His entry improved upon the old one, which noted that Earth was, simply, "Harmless." + +However, the Guide has limited space, and when Ford submits his entry to his editors, it is trimmed to fit: + +group{ + + "What? Harmless? Is that all it's got to say? Harmless! One + word!" + + Ford shrugged. "Well, there are a hundred billion stars in the + Galaxy, and only a limited amount of space in the book's + microprocessors," he said, "and no one knew much about the Earth + of course." + + "Well for God's sake I hope you managed to rectify that a bit." + + "Oh yes, well I managed to transmit a new entry off to the editor. + He had to trim it a bit, but it's still an improvement." + + "And what does it say now?" asked Arthur. + + "Mostly harmless," admitted Ford with a slightly embarrassed + cough. + +}group + +[fn: My lifestyle is as gypsy and fancy-free as the characters in H2G2, and as a result my copies of the Adams books are thousands of miles away in storages in other countries, and this essay was penned on public transit and cheap hotel rooms in Chile, Boston, London, Geneva, Brussels, Bergen, Geneva (again), Toronto, Edinburgh, and Helsinki. Luckily, I was able to download a dodgy, re-keyed version of the Adams books from a peer-to-peer network, which network I accessed via an open wireless network on a random street-corner in an anonymous city, a fact that I note here as testimony to the power of the Internet to do what the Guide does for Ford and Arthur: put all the information I need at my fingertips, wherever I am. However, these texts *{are}* a little on the dodgy side, as noted, so you might want to confirm these quotes before, say, uttering them before an Adams truefan.] + +And there's the humor: every writer knows the pain of laboring over a piece for days, infusing it with diverse interesting factoids and insights, only to have it cut to ribbons by some distant editor (I once wrote thirty drafts of a 5,000-word article for an editor who ended up running it in three paragraphs as accompaniment for what he decided should be a photo essay with minimal verbiage.) + +Since the dawn of the Internet, H2G2 geeks have taken it upon themselves to attempt to make a Guide on the Internet. Volunteers wrote and submitted essays on various subjects as would be likely to appear in a good encyclopedia, infusing them with equal measures of humor and thoughtfulness, and they were edited together by the collective effort of the contributors. These projects -- Everything2, H2G2 (which was overseen by Adams himself), and others -- are like a barn-raising in which a team of dedicated volunteers organize the labors of casual contributors, piecing together a free and open user-generated encyclopedia. + +These encyclopedias have one up on Adams's Guide: they have no shortage of space on their "microprocessors" (the first volume of the Guide was clearly written before Adams became conversant with PCs!). The ability of humans to generate verbiage is far outstripped by the ability of technologists to generate low-cost, reliable storage to contain it. For example, Brewster Kahle's Internet Archive project (archive.org) has been making a copy of the Web -- the *{whole}* Web, give or take -- every couple of days since 1996. Using the Archive's Wayback Machine, you can now go and see what any page looked like on a given day. + +The Archive doesn't even bother throwing away copies of pages that haven't changed since the last time they were scraped: with storage as cheap as it is -- and it is *{very}* cheap for the Archive, which runs the largest database in the history of the universe off of a collection of white-box commodity PCs stacked up on packing skids in the basement of a disused armory in San Francisco's Presidio -- there's no reason not to just keep them around. In fact, the Archive has just spawned two "mirror" Archives, one located under the rebuilt Library of Alexandria and the other in Amsterdam. [fn: Brewster Kahle says that he was nervous about keeping his only copy of the "repository of all human knowledge" on the San Andreas fault, but keeping your backups in a censorship-happy Amnesty International watchlist state and/or in a floodplain below sea level is probably not such a good idea either!] + +So these systems did not see articles trimmed for lack of space; for on the Internet, the idea of "running out of space" is meaningless. But they *{were}* trimmed, by editorial cliques, and rewritten for clarity and style. Some entries were rejected as being too thin, while others were sent back to the author for extensive rewrites. + +This traditional separation of editor and writer mirrors the creative process itself, in which authors are exhorted to concentrate on *{either}* composing *{or}* revising, but not both at the same time, for the application of the critical mind to the creative process strangles it. So you write, and then you edit. Even when you write for your own consumption, it seems you have to answer to an editor. + +The early experimental days of the Internet saw much experimentation with alternatives to traditional editor/author divisions. Slashdot, a nerdy news-site of surpassing popularity [fn: Having a link to one's website posted to Slashdot will almost inevitably overwhelm your server with traffic, knocking all but the best-provisioned hosts offline within minutes; this is commonly referred to as "the Slashdot Effect."], has a baroque system for "community moderation" of the responses to the articles that are posted to its front pages. Readers, chosen at random, are given five "moderator points" that they can use to raise or lower the score of posts on the Slashdot message boards. Subsequent readers can filter their views of these boards to show only highly ranked posts. Other readers are randomly presented with posts and their rankings and are asked to rate the fairness of each moderator's moderation. Moderators who moderate fairly are given more opportunities to moderate; likewise message-board posters whose messages are consistently highly rated. + +It is thought that this system rewards good "citizenship" on the Slashdot boards through checks and balances that reward good messages and fair editorial practices. And in the main, the Slashdot moderation system works [fn: as do variants on it, like the system in place at Kur5hin.org (pronounced "corrosion")]. If you dial your filter up to show you highly scored messages, you will generally get well-reasoned, or funny, or genuinely useful posts in your browser. + +This community moderation scheme and ones like it have been heralded as a good alternative to traditional editorship. The importance of the Internet to "edit itself" is best understood in relation to the old shibboleth, "On the Internet, everyone is a slushreader." [fn: "Slush" is the term for generally execrable unsolicited manuscripts that fetch up in publishers' offices -- these are typically so bad that the most junior people on staff are drafted into reading (and, usually, rejecting) them]. When the Internet's radical transformative properties were first bandied about in publishing circles, many reassured themselves that even if printing's importance was de-emphasized, that good editors would always been needed, and doubly so online, where any mouth-breather with a modem could publish his words. Someone would need to separate the wheat from the chaff and help keep us from drowning in information. + +One of the best-capitalized businesses in the history of the world, Yahoo!, went public on the strength of this notion, proposing to use an army of researchers to catalog every single page on the Web even as it was created, serving as a comprehensive guide to all human knowledge. Less than a decade later, Yahoo! is all but out of that business: the ability of the human race to generate new pages far outstrips Yahoo!'s ability to read, review, rank and categorize them. + +Hence Slashdot, a system of distributed slushreading. Rather than professionalizing the editorship role, Slashdot invites contributors to identify good stuff when they see it, turning editorship into a reward for good behavior. + +But as well as Slashdot works, it has this signal failing: nearly every conversation that takes place on Slashdot is shot through with discussion, griping and gaming *{on the moderation system itself}*. The core task of Slashdot has *{become}* editorship, not the putative subjects of Slashdot posts. The fact that the central task of Slashdot is to rate other Slashdotters creates a tenor of meanness in the discussion. Imagine if the subtext of every discussion you had in the real world was a kind of running, pedantic nitpickery in which every point was explicitly weighed and judged and commented upon. You'd be an unpleasant, unlikable jerk, the kind of person that is sometimes referred to as a "slashdork." + +As radical as Yahoo!'s conceit was, Slashdot's was more radical. But as radical as Slashdot's is, it is still inherently conservative in that it presumes that editorship is necessary, and that it further requires human judgment and intervention. + +Google's a lot more radical. Instead of editors, it has an algorithm. Not the kind of algorithm that dominated the early search engines like Altavista, in which laughably bad artificial intelligence engines attempted to automatically understand the content, context and value of every page on the Web so that a search for "Dog" would turn up the page more relevant to the query. + +Google's algorithm is predicated on the idea that people are good at understanding things and computers are good at counting things. Google counts up all the links on the Web and affords more authority to those pages that have been linked to by the most other pages. The rationale is that if a page has been linked to by many web-authors, then they must have seen some merit in that page. This system works remarkably well -- so well that it's nearly inconceivable that any search-engine would order its rankings by any other means. What's more, it doesn't pervert the tenor of the discussions and pages that it catalogs by turning each one into a performance for a group of ranking peers. [fn: Or at least, it *{didn't}*. Today, dedicated web-writers, such as bloggers, are keenly aware of the way that Google will interpret their choices about linking and page-structure. One popular sport is "googlebombing," in which web-writers collude to link to a given page using a humorous keyword so that the page becomes the top result for that word -- which is why, for a time, the top result for "more evil than Satan" was Microsoft.com. Likewise, the practice of "blogspamming," in which unscrupulous spammers post links to their webpages in the message boards on various blogs, so that Google will be tricked into thinking that a wide variety of sites have conferred some authority onto their penis-enlargement page.] + +But even Google is conservative in assuming that there is a need for editorship as distinct from composition. Is there a way we can dispense with editorship altogether and just use composition to refine our ideas? Can we merge composition and editorship into a single role, fusing our creative and critical selves? + +You betcha. + +"Wikis" [fn: Hawai'ian for "fast"] are websites that can be edited by anyone. They were invented by Ward Cunningham in 1995, and they have become one of the dominant tools for Internet collaboration in the present day. Indeed, there is a sort of Internet geek who throws up a Wiki in the same way that ants make anthills: reflexively, unconsciously. + +Here's how a Wiki works. You put up a page: + +group{ + + Welcome to my Wiki. It is rad. + + There are OtherWikis that inspired me. + +}group + +Click "publish" and bam, the page is live. The word "OtherWikis" will be underlined, having automatically been turned into a link to a blank page titled "OtherWikis" (Wiki software recognizes words with capital letters in the middle of them as links to other pages. Wiki people call this "camel-case," because the capital letters in the middle of words make them look like humped camels.) At the bottom of it appears this legend: "Edit this page." + +Click on "Edit this page" and the text appears in an editable field. Revise the text to your heart's content and click "Publish" and your revisions are live. Anyone who visits a Wiki can edit any of its pages, adding to it, improving on it, adding camel-cased links to new subjects, or even defacing or deleting it. + +It is authorship without editorship. Or authorship fused with editorship. Whichever, it works, though it requires effort. The Internet, like all human places and things, is fraught with spoilers and vandals who deface whatever they can. Wiki pages are routinely replaced with obscenities, with links to spammers' websites, with junk and crap and flames. + +But Wikis have self-defense mechanisms, too. Anyone can "subscribe" to a Wiki page, and be notified when it is updated. Those who create Wiki pages generally opt to act as "gardeners" for them, ensuring that they are on hand to undo the work of the spoilers. + +In this labor, they are aided by another useful Wiki feature: the "history" link. Every change to every Wiki page is logged and recorded. Anyone can page back through every revision, and anyone can revert the current version to a previous one. That means that vandalism only lasts as long as it takes for a gardener to come by and, with one or two clicks, set things to right. + +This is a powerful and wildly successful model for collaboration, and there is no better example of this than the Wikipedia, a free, Wiki-based encyclopedia with more than one million entries, which has been translated into 198 languages [fn: That is, one or more Wikipedia entries have been translated into 198 languages; more than 15 languages have 10,000 or more entries translated] + +Wikipedia is built entirely out of Wiki pages created by self-appointed experts. Contributors research and write up subjects, or produce articles on subjects that they are familiar with. + +This is authorship, but what of editorship? For if there is one thing a Guide or an encyclopedia must have, it is authority. It must be vetted by trustworthy, neutral parties, who present something that is either The Truth or simply A Truth, but truth nevertheless. + +The Wikipedia has its skeptics. Al Fasoldt, a writer for the Syracuse Post-Standard, apologized to his readers for having recommended that they consult Wikipedia. A reader of his, a librarian, wrote in and told him that his recommendation had been irresponsible, for Wikipedia articles are often defaced or worse still, rewritten with incorrect information. When another journalist from the Techdirt website wrote to Fasoldt to correct this impression, Fasoldt responded with an increasingly patronizing and hysterical series of messages in which he described Wikipedia as "outrageous," "repugnant" and "dangerous," insulting the Techdirt writer and storming off in a huff. [fn: see http://techdirt.com/articles/20040827/0132238_F.shtml for more] + +Spurred on by this exchange, many of Wikipedia's supporters decided to empirically investigate the accuracy and resilience of the system. Alex Halavais made changes to 13 different pages, ranging from obvious to subtle. Every single change was found and corrected within hours. [fn: see http://alex.halavais.net/news/index.php?p=794 for more] Then legendary Princeton engineer Ed Felten ran side-by-side comparisons of Wikipedia entries on areas in which he had deep expertise with their counterparts in the current electronic edition of the Encyclopedia Britannica. His conclusion? "Wikipedia's advantage is in having more, longer, and more current entries. If it weren't for the Microsoft-case entry, Wikipedia would have been the winner hands down. Britannica's advantage is in having lower variance in the quality of its entries." [fn: see http://www.freedom-to-tinker.com/archives/000675.html for more] Not a complete win for Wikipedia, but hardly "outrageous," "repugnant" and "dangerous." (Poor Fasoldt -- his idiotic hyperbole will surely haunt him through the whole of his career -- I mean, "repugnant?!") + +There has been one very damning and even frightening indictment of Wikipedia, which came from Ethan Zuckerman, the founder of the GeekCorps group, which sends volunteers to poor countries to help establish Internet Service Providers and do other good works through technology. + +Zuckerman, a Harvard Berkman Center Fellow, is concerned with the "systemic bias" in a collaborative encyclopedia whose contributors must be conversant with technology and in possession of same in order to improve on the work there. Zuckerman reasonably observes that Internet users skew towards wealth, residence in the world's richest countries, and a technological bent. This means that the Wikipedia, too, is skewed to subjects of interest to that group -- subjects where that group already has expertise and interest. + +The result is tragicomical. The entry on the Congo Civil War, the largest military conflict the world has seen since WWII, which has claimed over three million lives, has only a fraction of the verbiage devoted to the War of the Ents, a fictional war fought between sentient trees in JRR Tolkien's *{Lord of the Rings}*. + +Zuckerman issued a public call to arms to rectify this, challenging Wikipedia contributors to seek out information on subjects like Africa's military conflicts, nursing and agriculture and write these subjects up in the same loving detail given over to science fiction novels and contemporary youth culture. His call has been answered well. What remains is to infiltrate the Wikipedia into the academe so that term papers, Masters and Doctoral theses on these subjects find themselves in whole or in part on the Wikipedia. [fn See http://en.wikipedia.org/wiki/User:Xed/CROSSBOW for more on this] + +But if Wikipedia is authoritative, how does it get there? What alchemy turns the maunderings of "mouth-breathers with modems" into valid, useful encyclopedia entries? + +It all comes down to the way that disputes are deliberated over and resolved. Take the entry on Israel. At one point, it characterized Israel as a beleaguered state set upon by terrorists who would drive its citizens into the sea. Not long after, the entry was deleted holus-bolus and replaced with one that described Israel as an illegal state practicing Apartheid on an oppressed ethnic minority. + +Back and forth the editors went, each overwriting the other's with his or her own doctrine. But eventually, one of them blinked. An editor moderated the doctrine just a little, conceding a single point to the other. And the other responded in kind. In this way, turn by turn, all those with a strong opinion on the matter negotiated a kind of Truth, a collection of statements that everyone could agree represented as neutral a depiction of Israel as was likely to emerge. Whereupon, the joint authors of this marvelous document joined forces and fought back to back to resist the revisions of other doctrinaires who came later, preserving their hard-won peace. [fn: This process was just repeated in microcosm in the Wikipedia entry on the author of this paper, which was replaced by a rather disparaging and untrue entry that characterized his books as critical and commercial failures -- there ensued several editorial volleys, culminating in an uneasy peace that couches the anonymous detractor's skepticism in context and qualifiers that make it clear what the facts are and what is speculation] + +What's most fascinating about these entries isn't their "final" text as currently present on Wikipedia. It is the history page for each, blow-by-blow revision lists that make it utterly transparent where the bodies were buried on the way to arriving at whatever Truth has emerged. This is a neat solution to the problem of authority -- if you want to know what the fully rounded view of opinions on any controversial subject look like, you need only consult its entry's history page for a blistering eyeful of thorough debate on the subject. + +And here, finally, is the answer to the "Mostly harmless" problem. Ford's editor can trim his verbiage to two words, but they need not stay there -- Arthur, or any other user of the Guide as we know it today [fn: that is, in the era where we understand enough about technology to know the difference between a microprocessor and a hard-drive] can revert to Ford's glorious and exhaustive version. + +Think of it: a Guide without space restrictions and without editors, where any Vogon can publish to his heart's content. + +Lovely. + +$$$$ + +1~ Warhol is Turning in His Grave + +(Originally published in The Guardian, November 13, 2007) ~# + +The excellent little programmer book for the National Portrait Gallery's current show POPARTPORTRAITS has a lot to say about the pictures hung on the walls, about the diverse source material the artists drew from in producing their provocative works. They cut up magazines, copied comic books, drew in trademarked cartoon characters like Minnie Mouse, reproduced covers from *{Time}* magazine, made ironic use of the cartoon figure of Charles Atlas, painted over an iconic photo of James Dean or Elvis Presley -- and that's just in the first room of seven. + +The programmer book describes the aesthetic experience of seeing these repositioned icons of culture high and low, the art created by the celebrated artists Poons, Rauschenberg, Warhol, et al by nicking the work of others, without permission, and remaking it to make statements and evoke emotions never countenanced by the original creators. + +However, the book does not say a word about copyright. Can you blame it? A treatise on the way that copyright and trademark were -- *{had to be}* -- trammeled to make these works could fill volumes. Reading the programmer book, you have to assume that the curators' only message about copyright is that where free expression is concerned, the rights of the creators of the original source material appropriated by the pop school take a back seat. + +There is, however, another message about copyright in the National Portrait Gallery: it's implicit in the "No Photography" signs prominently placed throughout the halls, including one right by the entrance of the POPARTPORTRAITS exhibition. This isn't intended to protect the works from the depredations of camera-flashes (it would read NO FLASH PHOTOGRAPHY if this were so). No, the ban on pictures is in place to safeguard the copyright in the works hung on the walls -- a fact that every gallery staffer I spoke to instantly affirmed when I asked about the policy. + +Indeed, it seems that every square centimeter of the Portrait Gallery is under some form of copyright. I wasn't even allowed to photograph the NO PHOTOGRAPHS sign. A museum staffer explained that she'd been told that the typography and layout of the NO PHOTOGRAPHS legend was, itself, copyrighted. If this is true, then presumably, the same rules would prevent anyone from taking any pictures in any public place -- unless you could somehow contrive to get a shot of Leicester Square without any writing, logos, architectural facades, or images in it. I doubt Warhol could have done it. + +What's the message of the show, then? Is it a celebration of remix culture, reveling in the endless possibilities opened up by appropriating and re-using without permission? + +Or is it the epitaph on the tombstone of the sweet days before the UN's chartering of the World Intellectual Property Organization and the ensuing mania for turning everything that can be sensed and recorded into someone's property? + +Does this show -- paid for with public money, with some works that are themselves owned by public institutions -- seek to inspire us to become 21st century pops, armed with cameraphones, websites and mixers, or is it supposed to inform us that our chance has passed, and we'd best settle for a life as information serfs, who can't even make free use of what our eyes see, our ears hear, of the streets we walk upon? + +Perhaps, just perhaps, it's actually a Dadaist show *{masquerading}* as a pop art show! Perhaps the point is to titillate us with the delicious irony of celebrating copyright infringement while simultaneously taking the view that even the NO PHOTOGRAPHY sign is a form of property, not to be reproduced without the permission that can never be had. + +$$$$ + +1~ The Future of Ignoring Things + +(Originally published on InformationWeek's Internet Evolution, October 3, 2007) ~# + +For decades, computers have been helping us to remember, but now it's time for them to help us to ignore. + +Take email: Endless engineer-hours are poured into stopping spam, but virtually no attention is paid to our interaction with our non-spam messages. Our mailer may strive to learn from our ratings what is and is not spam, but it expends practically no effort on figuring out which of the non-spam emails are important and which ones can be safely ignored, dropped into archival folders, or deleted unread. + +For example, I'm forever getting cc'd on busy threads by well-meaning colleagues who want to loop me in on some discussion in which I have little interest. Maybe the initial group invitation to a dinner (that I'll be out of town for) was something I needed to see, but now that I've declined, I really don't need to read the 300+ messages that follow debating the best place to eat. + +I could write a mail-rule to ignore the thread, of course. But mail-rule editors are clunky, and once your rule-list grows very long, it becomes increasingly unmanageable. Mail-rules are where bookmarks were before the bookmark site del.icio.us showed up -- built for people who might want to ensure that messages from the boss show up in red, but not intended to be used as a gigantic storehouse of a million filters, a crude means for telling the computers what we don't want to see. + +Rael Dornfest, the former chairman of the O'Reilly Emerging Tech conference and founder of the startup IWantSandy, once proposed an "ignore thread" feature for mailers: Flag a thread as uninteresting, and your mailer will start to hide messages with that subject-line or thread-ID for a week, unless those messages contain your name. The problem is that threads mutate. Last week's dinner plans become this week's discussion of next year's group holiday. If the thread is still going after a week, the messages flow back into your inbox -- and a single click takes you back through all the messages you missed. + +We need a million measures like this, adaptive systems that create a gray zone between "delete on sight" and "show this to me right away." + +RSS readers are a great way to keep up with the torrent of new items posted on high-turnover sites like Digg, but they're even better at keeping up with sites that are sporadic, like your friend's brilliant journal that she only updates twice a year. But RSS readers don't distinguish between the rare and miraculous appearance of a new item in an occasional journal and the latest click-fodder from Slashdot. They don't even sort your RSS feeds according to the sites that you click-through the most. + +There was a time when I could read the whole of Usenet -- not just because I was a student looking for an excuse to avoid my assignments, but because Usenet was once tractable, readable by a single determined person. Today, I can't even keep up with a single high-traffic message-board. I can't read all my email. I can't read every item posted to every site I like. I certainly can't plough through the entire edit-history of every Wikipedia entry I read. I've come to grips with this -- with acquiring information on a probabilistic basis, instead of the old, deterministic, cover-to-cover approach I learned in the offline world. + +It's as though there's a cognitive style built into TCP/IP. Just as the network only does best-effort delivery of packets, not worrying so much about the bits that fall on the floor, TCP/IP users also do best-effort sweeps of the Internet, focusing on learning from the good stuff they find, rather than lamenting the stuff they don't have time to see. + +The network won't ever become more tractable. There will never be fewer things vying for our online attention. The only answer is better ways and new technology to ignore stuff -- a field that's just being born, with plenty of room to grow. + +$$$$ + +1~ Facebook's Faceplant + +(Originally published as "How Your Creepy Ex-Co-Workers Will Kill Facebook," in InformationWeek, November 26, 2007) ~# + +Facebook's "platform" strategy has sparked much online debate and controversy. No one wants to see a return to the miserable days of walled gardens, when you couldn't send a message to an AOL subscriber unless you, too, were a subscriber, and when the only services that made it were the ones that AOL management approved. Those of us on the "real" Internet regarded AOL with a species of superstitious dread, a hive of clueless noobs waiting to swamp our beloved Usenet with dumb flamewars (we fiercely guarded our erudite flamewars as being of a palpably superior grade), the wellspring of an + +Facebook is no paragon of virtue. It bears the hallmarks of the kind of pump-and-dump service that sees us as sticky, monetizable eyeballs in need of pimping. The clue is in the steady stream of emails you get from Facebook: "So-and-so has sent you a message." Yeah, what is it? Facebook isn't telling -- you have to visit Facebook to find out, generate a banner impression, and read and write your messages using the halt-and-lame Facebook interface, which lags even end-of-lifed email clients like Eudora for composing, reading, filtering, archiving and searching. Emails from Facebook aren't helpful messages, they're eyeball bait, intended to send you off to the Facebook site, only to discover that Fred wrote "Hi again!" on your "wall." Like other "social" apps (cough eVite cough), Facebook has all the social graces of a nose-picking, hyperactive six-year-old, standing at the threshold of your attention and chanting, "I know something, I know something, I know something, won't tell you what it is!" + +If there was any doubt about Facebook's lack of qualification to displace the Internet with a benevolent dictatorship/walled garden, it was removed when Facebook unveiled its new advertising campaign. Now, Facebook will allow its advertisers use the profile pictures of Facebook users to advertise their products, without permission or compensation. Even if you're the kind of person who likes the sound of a "benevolent dictatorship," this clearly isn't one. + +Many of my colleagues wonder if Facebook can be redeemed by opening up the platform, letting anyone write any app for the service, easily exporting and importing their data, and so on (this is the kind of thing Google is doing with its OpenSocial Alliance). Perhaps if Facebook takes on some of the characteristics that made the Web work -- openness, decentralization, standardization -- it will become like the Web itself, but with the added pixie dust of "social," the indefinable characteristic that makes Facebook into pure crack for a significant proportion of Internet users. + +The debate about redeeming Facebook starts from the assumption that Facebook is snowballing toward critical mass, the point at which it begins to define "the Internet" for a large slice of the world's netizens, growing steadily every day. But I think that this is far from a sure thing. Sure, networks generally follow Metcalfe's Law: "the value of a telecommunications network is proportional to the square of the number of users of the system." This law is best understood through the analogy of the fax machine: a world with one fax machine has no use for faxes, but every time you add a fax, you square the number of possible send/receive combinations (Alice can fax Bob or Carol or Don; Bob can fax Alice, Carol and Don; Carol can fax Alice, Bob and Don, etc). + +But Metcalfe's law presumes that creating more communications pathways increases the value of the system, and that's not always true (see Brook's Law: "Adding manpower to a late softer project makes it later"). + +Having watched the rise and fall of SixDegrees, Friendster, and the many other proto-hominids that make up the evolutionary chain leading to Facebook, MySpace, et al, I'm inclined to think that these systems are subject to a Brook's-law parallel: "Adding more users to a social network increases the probability that it will put you in an awkward social circumstance." Perhaps we can call this "boyd's Law" [NOTE TO EDITOR: "boyd" is always lower-case] for danah [TO EDITOR: "danah" too!] boyd, the social scientist who has studied many of these networks from the inside as a keen-eyed net-anthropologist and who has described the many ways in which social software does violence to sociability in a series of sharp papers. + +Here's one of boyd's examples, a true story: a young woman, an elementary school teacher, joins Friendster after some of her Burning Man buddies send her an invite. All is well until her students sign up and notice that all the friends in her profile are sunburnt, drug-addled techno-pagans whose own profiles are adorned with digital photos of their painted genitals flapping over the Playa. The teacher inveigles her friends to clean up their profiles, and all is well again until her boss, the school principal, signs up to the service and demands to be added to her friends list. The fact that she doesn't like her boss doesn't really matter: in the social world of Friendster and its progeny, it's perfectly valid to demand to be "friended" in an explicit fashion that most of us left behind in the fourth grade. Now that her boss is on her friends list, our teacher-friend's buddies naturally assume that she is one of the tribe and begin to send her lascivious Friendster-grams, inviting her to all sorts of dirty funtimes. + +In the real world, we don't articulate our social networks. Imagine how creepy it would be to wander into a co-worker's cubicle and discover the wall covered with tiny photos of everyone in the office, ranked by "friend" and "foe," with the top eight friends elevated to a small shrine decorated with Post-It roses and hearts. And yet, there's an undeniable attraction to corralling all your friends and friendly acquaintances, charting them and their relationship to you. Maybe it's evolutionary, some quirk of the neocortex dating from our evolution into social animals who gained advantage by dividing up the work of survival but acquired the tricky job of watching all the other monkeys so as to be sure that everyone was pulling their weight and not, e.g., napping in the treetops instead of watching for predators, emerging only to eat the fruit the rest of us have foraged. + +Keeping track of our social relationships is a serious piece of work that runs a heavy cognitive load. It's natural to seek out some neural prosthesis for assistance in this chore. My fiancee once proposed a "social scheduling" application that would watch your phone and email and IM to figure out who your pals were and give you a little alert if too much time passed without your reaching out to say hello and keep the coals of your relationship aglow. By the time you've reached your forties, chances are you're out-of-touch with more friends than you're in-touch with, old summer-camp chums, high-school mates, ex-spouses and their families, former co-workers, college roomies, dot-com veterans... Getting all those people back into your life is a full-time job and then some. + +You'd think that Facebook would be the perfect tool for handling all this. It's not. For every long-lost chum who reaches out to me on Facebook, there's a guy who beat me up on a weekly basis through the whole seventh grade but now wants to be my buddy; or the crazy person who was fun in college but is now kind of sad; or the creepy ex-co-worker who I'd cross the street to avoid but who now wants to know, "Am I your friend?" yes or no, this instant, please. + +It's not just Facebook and it's not just me. Every "social networking service" has had this problem and every user I've spoken to has been frustrated by it. I think that's why these services are so volatile: why we're so willing to flee from Friendster and into MySpace's loving arms; from MySpace to Facebook. It's socially awkward to refuse to add someone to your friends list -- but *{removing}* someone from your friend-list is practically a declaration of war. The least-awkward way to get back to a friends list with nothing but friends on it is to reboot: create a new identity on a new system and send out some invites (of course, chances are at least one of those invites will go to someone who'll groan and wonder why we're dumb enough to think that we're pals). + +That's why I don't worry about Facebook taking over the net. As more users flock to it, the chances that the person who precipitates your exodus will find you increases. Once that happens, poof, away you go -- and Facebook joins SixDegrees, Friendster and their pals on the scrapheap of net.history. + +$$$$ + +1~ The Future of Internet Immune Systems + +(Originally published on InformationWeek's Internet Evolution, November 19, 2007) ~# + +Bunhill Cemetery is just down the road from my flat in London. It’s a handsome old boneyard, a former plague pit (“Bone hill” -- as in, there are so many bones under there that the ground is actually kind of humped up into a hill). There are plenty of luminaries buried there -- John “Pilgrim’s Progress” Bunyan, William Blake, Daniel Defoe, and assorted Cromwells. But my favorite tomb is that of Thomas Bayes, the 18th-century statistician for whom Bayesian filtering is named. + +Bayesian filtering is plenty useful. Here’s a simple example of how you might use a Bayesian filter. First, get a giant load of non-spam emails and feed them into a Bayesian program that counts how many times each word in their vocabulary appears, producing a statistical breakdown of the word-frequency in good emails. + +Then, point the filter at a giant load of spam (if you’re having a hard time getting a hold of one, I have plenty to spare), and count the words in it. Now, for each new message that arrives in your inbox, have the filter count the relative word-frequencies and make a statistical prediction about whether the new message is spam or not (there are plenty of wrinkles in this formula, but this is the general idea). + +The beauty of this approach is that you needn’t dream up “The Big Exhaustive List of Words and Phrases That Indicate a Message Is/Is Not Spam.” The filter naively calculates a statistical fingerprint for spam and not-spam, and checks the new messages against them. + +This approach -- and similar ones -- are evolving into an immune system for the Internet, and like all immune systems, a little bit goes a long way, and too much makes you break out in hives. + +ISPs are loading up their network centers with intrusion detection systems and tripwires that are supposed to stop attacks before they happen. For example, there’s the filter at the hotel I once stayed at in Jacksonville, Fla. Five minutes after I logged in, the network locked me out again. After an hour on the phone with tech support, it transpired that the network had noticed that the videogame I was playing systematically polled the other hosts on the network to check if they were running servers that I could join and play on. The network decided that this was a malicious port-scan and that it had better kick me off before I did anything naughty. + +It only took five minutes for the software to lock me out, but it took well over an hour to find someone in tech support who understood what had happened and could reset the router so that I could get back online. + +And right there is an example of the autoimmune disorder. Our network defenses are automated, instantaneous, and sweeping. But our fallback and oversight systems are slow, understaffed, and unresponsive. It takes a millionth of a second for the Transportation Security Administration’s body-cavity-search roulette wheel to decide that you’re a potential terrorist and stick you on a no-fly list, but getting un-Tuttle-Buttled is a nightmarish, months-long procedure that makes Orwell look like an optimist. + +The tripwire that locks you out was fired-and-forgotten two years ago by an anonymous sysadmin with root access on the whole network. The outsourced help-desk schlub who unlocks your account can’t even spell "tripwire." The same goes for the algorithm that cut off your credit card because you got on an airplane to a different part of the world and then had the audacity to spend your money. (I’ve resigned myself to spending $50 on long-distance calls with Citibank every time I cross a border if I want to use my debit card while abroad.) + +This problem exists in macro- and microcosm across the whole of our technologically mediated society. The “spamigation bots” run by the Business Software Alliance and the Music and Film Industry Association of America (MAFIAA) entertainment groups send out tens of thousands of automated copyright takedown notices to ISPs at a cost of pennies, with little or no human oversight. The people who get erroneously fingered as pirates (as a Recording Industry Association of America (RIAA) spokesperson charmingly puts it, “When you go fishing with a dragnet, sometimes you catch a dolphin.”) spend days or weeks convincing their ISPs that they had the right to post their videos, music, and text-files. + +We need an immune system. There are plenty of bad guys out there, and technology gives them force-multipliers (like the hackers who run 250,000-PC botnets). Still, there’s a terrible asymmetry in a world where defensive takedowns are automatic, but correcting mistaken takedowns is done by hand. + +$$$$ + +1~ All Complex Ecosystems Have Parasites + +(Paper delivered at the O'Reilly Emerging Technology Conference, San Diego, California, 16 March 2005) ~# + +AOL hates spam. AOL could eliminate nearly 100 percent of its subscribers' spam with one easy change: it could simply shut off its internet gateway. Then, as of yore, the only email an AOL subscriber could receive would come from another AOL subscriber. If an AOL subscriber sent a spam to another AOL subscriber and AOL found out about it, they could terminate the spammer's account. Spam costs AOL millions, and represents a substantial disincentive for AOL customers to remain with the service, and yet AOL chooses to permit virtually anyone who can connect to the Internet, anywhere in the world, to send email to its customers, with any software at all. + +Email is a sloppy, complicated ecosystem. It has organisms of sufficient diversity and sheer number as to beggar the imagination: thousands of SMTP agents, millions of mail-servers, hundreds of millions of users. That richness and diversity lets all kinds of innovative stuff happen: if you go to nytimes.com and "send a story to a friend," the NYT can convincingly spoof your return address on the email it sends to your friend, so that it appears that the email originated on your computer. Also: a spammer can harvest your email and use it as a fake return address on the spam he sends to your friend. Sysadmins have server processes that send them mail to secret pager-addresses when something goes wrong, and GPLed mailing-list software gets used by spammers and people running high-volume mailing lists alike. + +You could stop spam by simplifying email: centralize functions like identity verification, limit the number of authorized mail agents and refuse service to unauthorized agents, even set up tollbooths where small sums of money are collected for every email, ensuring that sending ten million messages was too expensive to contemplate without a damned high expectation of return on investment. If you did all these things, you'd solve spam. + +By breaking email. + +Small server processes that mail a logfile to five sysadmins every hour just in case would be prohibitively expensive. Convincing the soviet that your bulk-mailer was only useful to legit mailing lists and not spammers could take months, and there's no guarantee that it would get their stamp of approval at all. With verified identity, the NYTimes couldn't impersonate you when it forwarded stories on your behalf -- and Chinese dissidents couldn't send out their samizdata via disposable gmail accounts. + +An email system that can be controlled is an email system without complexity. Complex ecosystems are influenced, not controlled. + +The Hollywood studios are conniving to create a global network of regulatory mandates over entertainment devices. Here they call it the Broadcast Flag; in Europe, Asia, Australia and Latinamerica it's called DVB Copy Protection Content Management. These systems purport to solve the problem of indiscriminate redistribution of broadcast programming via the Internet, but their answer to the problem, such as it is, is to require that everyone who wants to build a device that touches video has to first get permission. + +If you want to make a TV, a screen, a video-card, a high-speed bus, an analog-to-digital converter, a tuner card, a DVD burner -- any tool that you hope to be lawful for use in connection with digital TV signals -- you'll have to go on bended knee to get permission to deploy it. You'll have to convince FCC bureaucrats or a panel of Hollywood companies and their sellout IT and consumer electronics toadies that the thing you're going to bring to market will not disrupt their business models. + +That's how DVD works today: if you want to make a DVD player, you need to ask permission from a shadowy organization called the DVD-CCA. They don't give permission if you plan on adding new features -- that's why they're suing Kaleidascape for building a DVD jukebox that can play back your movies from a hard-drive archive instead of the original discs. + +CD has a rich ecosystem, filled with parasites -- entrepreneurial organisms that move to fill every available niche. If you spent a thousand bucks on CDs ten years ago, the ecosystem for CDs would reward you handsomely. In the intervening decade, parasites who have found an opportunity to suck value out of the products on offer from the labels and the dupe houses by offering you the tools to convert your CDs to ring-tones, karaoke, MP3s, MP3s on iPods and other players, MP3s on CDs that hold a thousand percent more music -- and on and on. + +DVDs live in a simpler, slower ecosystem, like a terrarium in a bottle where a million species have been pared away to a manageable handful. DVDs pay no such dividend. A thousand dollars' worth of ten-year old DVDs are good for just what they were good for ten years ago: watching. You can't put your kid into her favorite cartoon, you can't downsample the video to something that plays on your phone, and you certainly can't lawfully make a hard-drive-based jukebox from your discs. + +The yearning for simple ecosystems is endemic among people who want to "fix" some problem of bad actors on the networks. + +Take interoperability: you might sell me a database in the expectation that I'll only communicate with it using your authorized database agents. That way you can charge vendors a license fee in exchange for permission to make a client, and you can ensure that the clients are well-behaved and don't trigger any of your nasty bugs. + +But you can't meaningfully enforce that. EDS and other titanic software companies earn their bread and butter by producing fake database clients that impersonate the real thing as they iterate through every record and write it to a text file -- or simply provide a compatibility layer through systems provided by two different vendors. These companies produce software that lies -- parasite software that fills niches left behind by other organisms, sometimes to those organisms' detriment. + +So we have "Trusted Computing," a system that's supposed to let software detect other programs' lies and refuse to play with them if they get caught out fibbing. It's a system that's based on torching the rainforest with all its glorious anarchy of tools and systems and replacing it with neat rows of tame and planted trees, each one approved by The Man as safe for use with his products. + +For Trusted Computing to accomplish this, everyone who makes a video-card, keyboard, or logic-board must receive a key from some certifying body that will see to it that the key is stored in a way that prevents end-users from extracting it and using it to fake signatures. + +But if one keyboard vendor doesn't store his keys securely, the system will be useless for fighting keyloggers. If one video-card vendor lets a key leak, the system will be no good for stopping screenlogging. If one logic-board vendor lets a key slip, the whole thing goes out the window. That's how DVD DRM got hacked: one vendor, Xing, left its keys in a place where users could get at them, and then anyone could break the DRM on any DVD. + +Not only is the Trusted Computing advocates' goal -- producing a simpler software ecosystem -- wrongheaded, but the methodology is doomed. Fly-by-night keyboard vendors in distant free trade zones just won't be 100 percent compliant, and Trusted Computing requires no less than perfect compliance. + +The whole of DRM is a macrocosm for Trusted Computing. The DVB Copy Protection system relies on a set of rules for translating every one of its restriction states -- such as "copy once" and "copy never" -- to states in other DRM systems that are licensed to receive its output. That means that they're signing up to review, approve and write special rules for every single entertainment technology now invented and every technology that will be invented in the future. + +Madness: shrinking the ecosystem of everything you can plug into your TV down to the subset that these self-appointed arbiters of technology approve is a recipe for turning the electronics, IT and telecoms industries into something as small and unimportant as Hollywood. Hollywood -- which is a tenth the size of IT, itself a tenth the size of telecoms. + +In Hollywood, your ability to make a movie depends on the approval of a few power-brokers who have signing authority over the two-hundred-million-dollar budgets for making films. As far as Hollywood is concerned, this is a feature, not a bug. Two weeks ago, I heard the VP of Technology for Warners give a presentation in Dublin on the need to adopt DRM for digital TV, and his money-shot, his big convincer of a slide went like this: + +"With advances in processing power, storage capacity and broadband access... EVERYBODY BECOMES A BROADCASTER!" + +Heaven forfend. + +Simple ecosystems are the goal of proceedings like CARP, the panel that set out the ruinously high royalties for webcasters. The recording industry set the rates as high as they did so that the teeming millions of webcasters would be rendered economically extinct, leaving behind a tiny handful of giant companies that could be negotiated with around a board room table, rather than dealt with by blanket legislation. + +The razing of the rainforest has a cost. It's harder to send a legitimate email today than it ever was -- thanks to a world of closed SMTP relays. The cries for a mail-server monoculture grow more shrill with every passing moment. Just last week, it was a call for every mail-administrator to ban the "vacation" program that sends out automatic responses informing senders that the recipient is away from email for a few days, because mailboxes that run vacation can cause "spam blowback" where accounts send their vacation notices to the hapless individuals whose email addresses the spammers have substituted on the email's Reply-To line. + +And yet there is more spam than there ever was. All the costs we've paid for fighting spam have added up to no benefit: the network is still overrun and sometimes even overwhelmed by spam. We've let the network's neutrality and diversity be compromised, without receiving the promised benefit of spam-free inboxes. + +Likewise, DRM has exacted a punishing toll wherever it has come into play, costing us innovation, free speech, research and the public's rights in copyright. And likewise, DRM has not stopped infringement: today, infringement is more widespread than ever. All those costs borne by society in the name of protecting artists and stopping infringement, and not a penny put into an artist's pocket, not a single DRM-restricted file that can't be downloaded for free and without encumbrance from a P2P network. + +Everywhere we look, we find people who should know better calling for a parasite-free Internet. Science fiction writers are supposed to be forward looking, but they're wasting their time demanding that Amazon and Google make it harder to piece together whole books from the page-previews one can get via the look-inside-the-book programs. They're even cooking up programs to spoof deliberately corrupted ebooks into the P2P networks, presumably to assure the few readers the field has left that reading science fiction is a mug's game. + +The amazing thing about the failure of parasite-elimination programs is that their proponents have concluded that the problem is that they haven't tried hard enough -- with just a few more species eliminated, a few more policies imposed, paradise will spring into being. Their answer to an unsuccessful strategy for fixing the Internet is to try the same strategy, only moreso -- only fill those niches in the ecology that you can sanction. Hunt and kill more parasites, no matter what the cost. + +We are proud parasites, we Emerging Techers. We're engaged in perl whirling, pythoneering, lightweight javarey -- we hack our cars and we hack our PCs. We're the rich humus carpeting the jungle floor and the tiny frogs living in the bromeliads. + +The long tail -- Chris Anderson's name for the 95% of media that isn't top sellers, but which, in aggregate, accounts for more than half the money on the table for media vendors -- is the tail of bottom-feeders and improbable denizens of the ocean's thermal vents. We're unexpected guests at the dinner table and we have the nerve to demand a full helping. + +Your ideas are cool and you should go and make them real, even if they demand that the kind of ecological diversity that seems to be disappearing around us. + +You may succeed -- provided that your plans don't call for a simple ecosystem where only you get to provide value and no one else gets to play. + +$$$ + +1~ READ CAREFULLY + +(Originally published as "Shrinkwrap Licenses: An Epidemic Of Lawsuits Waiting To Happen" in InformationWeek, February 3, 2007) ~# + +*{READ CAREFULLY. By reading this article, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.}* + +READ CAREFULLY -- all in caps, and what it means is, "IGNORE THIS." That's because the small print in the clickwrap, shrinkwrap, browsewrap and other non-negotiated agreements is both immutable and outrageous. + +Why read the "agreement" if you know that: + +1) No sane person would agree to its text, and + +2) Even if you disagree, no one will negotiate a better agreement with you? + +We seem to have sunk to a kind of playground system of forming contracts. There are those who will tell you that you can form a binding agreement just by following a link, stepping into a store, buying a product, or receiving an email. By standing there, shaking your head, shouting "NO NO NO I DO NOT AGREE," you agree to let me come over to your house, clean out your fridge, wear your underwear and make some long-distance calls. + +If you buy a downloadable movie from Amazon Unbox, you agree to let them install spyware on your computer, delete any file they don't like on your hard-drive, and cancel your viewing privileges for any reason. Of course, it goes without saying that Amazon reserves the right to modify the agreement at any time. + +The worst offenders are people who sell you movies and music. They're a close second to people who sell you software, or provide services over the Internet. There's a rubric to this -- you're getting a discount in exchange for signing onto an abusive agreement, but just try and find the software that *{doesn't}* come with one of these "agreements" -- at any price. + +For example, Vista, Microsoft's new operating system, comes in a rainbow of flavors varying in price from $99 to $399, but all of them come with the same crummy terms of service, which state that "you may not work around any technical limitations in the software," and that Windows Defender, the bundled anti-malware program, can delete any program from your hard drive that Microsoft doesn't like, even if it breaks your computer. + +It's bad enough when this stuff comes to us through deliberate malice, but it seems that bogus agreements can spread almost without human intervention. Google any obnoxious term or phrase from a EULA, and you'll find that the same phrase appears in a dozens -- perhaps thousands -- of EULAs around the Internet. Like snippets of DNA being passed from one virus to another as they infect the world's corporations in a pandemic of idiocy, terms of service are semi-autonomous entities. + +Indeed, when rocker Billy Bragg read the fine print on the MySpace user agreement, he discovered that it appeared that site owner Rupert Murdoch was laying claim to copyrights in every song uploaded to the site, in a silent, sinister land-grab that turned the media baron into the world's most prolific and indiscriminate hoarder of garage-band tunes. + +However, the EULA that got Bragg upset wasn't a Murdoch innovation -- it dates back to the earliest days of the service. It seems to have been posted at a time when the garage entrepreneurs who built MySpace were in no position to hire pricey counsel -- something borne out by the fact that the old MySpace EULA appears nearly verbatim on many other services around the Internet. It's not going out very far on a limb to speculate that MySpace's founders merely copied a EULA they found somewhere else, without even reading it, and that when Murdoch's due diligence attorneys were preparing to give these lucky fellows $600,000,000, that they couldn't be bothered to read the terms of service anyway. + +In their defense, EULAese is so mind-numbingly boring that it's a kind of torture to read these things. You can hardly blame them. + +But it does raise the question -- why are we playing host to these infectious agents? If they're not read by customers *{or}* companies, why bother with them? + +If you wanted to really be careful about this stuff, you'd prohibit every employee at your office from clicking on any link, installing any program, creating accounts, signing for parcels -- even doing a run to Best Buy for some CD blanks, have you *{seen}* the fine-print on their credit-card slips? After all, these people are entering into "agreements" on behalf of their employer -- agreements to allow spyware onto your network, to not "work around any technical limitations in their software," to let malicious software delete arbitrary files from their systems. + +So far, very few of us have been really bitten in the ass by EULAs, but that's because EULAs are generally associated with companies who have products or services they're hoping you'll use, and enforcing their EULAs could cost them business. + +But that was the theory with patents, too. So long as everyone with a huge portfolio of unexamined, overlapping, generous patents was competing with similarly situated manufacturers, there was a mutually assured destruction -- a kind of detente represented by cross-licensing deals for patent portfolios. + +But the rise of the patent troll changed all that. Patent trolls don't make products. They make lawsuits. They buy up the ridiculous patents of failed companies and sue the everloving hell out of everyone they can find, building up a war-chest from easy victories against little guys that can be used to fund more serious campaigns against larger organizations. Since there are no products to disrupt with a countersuit, there's no mutually assured destruction. + +If a shakedown artist can buy up some bogus patents and use them to put the screws to you, then it's only a matter of time until the same grifters latch onto the innumerable "agreements" that your company has formed with a desperate dot-bomb looking for an exit strategy. + +More importantly, these "agreements" make a mockery of the law and of the very *{idea}* of forming agreements. Civilization starts with the idea of a real agreement -- for example, "We crap *{here}* and we sleep *{there}*, OK?" -- and if we reduce the noble agreement to a schoolyard game of no-takebacks, we erode the bedrock of civilization itself. + +$$$$ + +1~ World of Democracycraft + +(Originally published as "Why Online Games Are Dictatorships," InformationWeek, April 16, 2007) ~# + +Can you be a citizen of a virtual world? That's the question that I keep asking myself, whenever anyone tells me about the wonder of multiplayer online games, especially Second Life, the virtual world that is more creative playground than game. + +These worlds invite us to take up residence in them, to invest time (and sometimes money) in them. Second Life encourages you to make stuff using their scripting engine and sell it in the game. You Own Your Own Mods -- it's the rallying cry of the new generation of virtual worlds, an updated version of the old BBS adage from the WELL: You Own Your Own Words. + +I spend a lot of time in Disney parks. I even own a share of Disney stock. But I don't flatter myself that I'm a citizen of Disney World. I know that when I go to Orlando, the Mouse is going to fingerprint me and search my bags, because the Fourth Amendment isn't a "Disney value." + +Disney even has its own virtual currency, symbolic tokens called Disney Dollars that you can spend or exchange at any Disney park. I'm reasonably confident that if Disney refused to turn my Mickeybucks back into US Treasury Department-issue greenbacks that I could make life unpleasant for them in a court of law. + +But is the same true of a game? The money in your real-world bank-account and in your in-game bank-account is really just a pointer in a database. But if the bank moves the pointer around arbitrarily (depositing a billion dollars in your account, or wiping you out), they face a regulator. If a game wants to wipe you out, well, you probably agreed to let them do that when you signed up. + +Can you amass wealth in such a world? Well, sure. There are rich people in dictatorships all over the world. Stalin's favorites had great big dachas and drove fancy cars. You don't need democratic rights to get rich. + +But you *{do}* need democratic freedoms to *{stay}* rich. In-world wealth is like a Stalin-era dacha, or the diamond fortunes of Apartheid South Africa: valuable, even portable (to a limited extent), but not really *{yours}*, not in any stable, long-term sense. + +Here are some examples of the difference between being a citizen and a customer: + +In January, 2006 a World of Warcraft moderator shut down an advertisement for a "GBLT-friendly" guild. This was a virtual club that players could join, whose mission was to be "friendly" to "Gay/Bi/Lesbian/Transgendered" players. The WoW moderator -- and Blizzard management -- cited a bizarre reason for the shut-down: + +"While we appreciate and understand your point of view, we do feel that the advertisement of a 'GLBT friendly' guild is very likely to result in harassment for players that may not have existed otherwise. If you will look at our policy, you will notice the suggested penalty for violating the Sexual Orientation Harassment Policy is to 'be temporarily suspended from the game.' However, as there was clearly no malicious intent on your part, this penalty was reduced to a warning." + +Sara Andrews, the guild's creator, made a stink and embarrassed Blizzard (the game's parent company) into reversing the decision. + +In 2004, a player in the MMO EVE Online declared that the game's creators had stacked the deck against him, called EVE, "a poorly designed game which rewards the greedy and violent, and punishes the hardworking and honest." He was upset over a change in the game dynamics which made it easier to play a pirate and harder to play a merchant. + +The player, "Dentara Rask," wrote those words in the preamble to a tell-all memoir detailing an elaborate Ponzi scheme that he and an accomplice had perpetrated in EVE. The two of them had bilked EVE's merchants out of a substantial fraction of the game's total GDP and then resigned their accounts. The objective was to punish the game's owners for their gameplay decisions by crashing the game's economy. + +In both of these instances, players -- residents of virtual worlds -- resolved their conflicts with game management through customer activism. That works in the real world, too, but when it fails, we have the rule of law. We can sue. We can elect new leaders. When all else fails, we can withdraw all our money from the bank, sell our houses, and move to a different country. + +But in virtual worlds, these recourses are off-limits. Virtual worlds can and do freeze players' wealth for "cheating" (amassing gold by exploiting loopholes in the system), for participating in real-world gold-for-cash exchanges (eBay recently put an end to this practice on its service), or for violating some other rule. The rules of virtual worlds are embodied in EULAs, not Constitutions, and are always "subject to change without notice." + +So what does it mean to be "rich" in Second Life? Sure, you can have a thriving virtual penis business in game, one that returns a healthy sum of cash every month. You can even protect your profits by regularly converting them to real money. But if you lose an argument with Second Life's parent company, your business vanishes. In other worlds, the only stable in-game wealth is the wealth you take out of the game. Your virtual capital investments are totally contingent. Piss off the wrong exec at Linden Labs, Blizzard, Sony Online Entertainment, or Sularke and your little in-world business could disappear for good. + +Well, what of it? Why not just create a "democratic" game that has a constitution, full citizenship for players, and all the prerequisites for stable wealth? Such a game would be open source (so that other, interoperable "nations" could be established for you to emigrate to if you don't like the will of the majority in one game-world), and run by elected representatives who would instruct the administrators and programmers as to how to run the virtual world. In the real world, the TSA sets the rules for aviation -- in a virtual world, the equivalent agency would determine the physics of flight. + +The question is, would this game be any *{fun}*? Well, democracy itself is pretty fun -- where "fun" means "engrossing and engaging." Lots of people like to play the democracy game, whether by voting every four years or by moving to K Street and setting up a lobbying operation. + +But video games aren't quite the same thing. Gameplay conventions like "grinding" (repeating a task), "leveling up" (attaining a higher level of accomplishment), "questing" and so on are functions of artificial scarcity. The difference between a character with 10,000,000 gold pieces and a giant, rare, terrifying crossbow and a newbie player is which pointers are associated with each character's database entry. If the elected representatives direct that every player should have the shiniest armor, best space-ships, and largest bank-balances possible (this sounds like a pretty good election platform to me!), then what's left to do? + +Oh sure, in Second Life they have an interesting crafting economy based on creating and exchanging virtual objects. But these objects are *{also}* artificially scarce -- that is, the ability of these objects to propagate freely throughout the world is limited only by the software that supports them. It's basically the same economics of the music industry, but applied to every field of human endeavor in the entire (virtual) world. + +Fun matters. Real world currencies rise and fall based, in part, by the economic might of the nations that issue them. Virtual world currencies are more strongly tied to whether there's any reason to spend the virtual currency on the objects that are denominated in it. 10,000 EverQuest golds might trade for $100 on a day when that same sum will buy you a magic EQ sword that enables you to play alongside the most interesting people online, running the most fun missions online. But if all those players out-migrate to World of Warcraft, and word gets around that Warlord's Command is way more fun than anything in poor old creaky EverQuest, your EverQuest gold turns into Weimar Deutschemarks, a devalued currency that you can't even give away. + +This is where the plausibility of my democratic, co-operative, open source virtual world starts to break down. Elected governments can field armies, run schools, provide health care (I'm a Canadian), and bring acid lakes back to health. But I've never done anything run by a government agency that was a lot of *{fun}*. It's my sneaking suspicion that the only people who'd enjoy playing World of Democracycraft would be the people running for office there. The players would soon find themselves playing IRSQuest, Second Notice of Proposed Rulemaking Life, and Caves of 27 Stroke B. + +Maybe I'm wrong. Maybe customership is enough of a rock to build a platform of sustainable industry upon. It's not like entrepreneurs in Dubai have a lot of recourse if they get on the wrong side of the Emir; or like Singaporeans get to appeal the decisions of President Nathan, and there's plenty of industry there. + +And hell, maybe bureaucracies have hidden reserves of fun that have been lurking there, waiting for the chance to bust out and surprise us all. + +I sure hope so. These online worlds are endlessly diverting places. It'd be a shame if it turned out that cyberspace was a dictatorship -- benevolent or otherwise. + +$$$$ + +1~ Snitchtown + +(Originally published in Forbes.com, June 2007) ~# + +The 12-story Hotel Torni was the tallest building in central Helsinki during the Soviet occupation of Finland, making it a natural choice to serve as KGB headquarters. Today, it bears a plaque testifying to its checkered past, and also noting the curious fact that the Finns pulled 40 kilometers of wiretap cable out of the walls after the KGB left. The wire was solid evidence of each operative's mistrustful surveillance of his fellow agents. + +The East German Stasi also engaged in rampant surveillance, using a network of snitches to assemble secret files on every resident of East Berlin. They knew who was telling subversive jokes--but missed the fact that the Wall was about to come down. + +When you watch everyone, you watch no one. + +This seems to have escaped the operators of the digital surveillance technologies that are taking over our cities. In the brave new world of doorbell cams, wi-fi sniffers, RFID passes, bag searches at the subway and photo lookups at office security desks, universal surveillance is seen as the universal solution to all urban ills. But the truth is that ubiquitous cameras only serve to violate the social contract that makes cities work. + +The key to living in a city and peacefully co-existing as a social animal in tight quarters is to set a delicate balance of seeing and not seeing. You take care not to step on the heels of the woman in front of you on the way out of the subway, and you might take passing note of her most excellent handbag. But you don't make eye contact and exchange a nod. Or even if you do, you make sure that it's as fleeting as it can be. + +Checking your mirrors is good practice even in stopped traffic, but staring and pointing at the schmuck next to you who's got his finger so far up his nostril he's in danger of lobotomizing himself is bad form--worse form than picking your nose, even. + +I once asked a Japanese friend to explain why so many people on the Tokyo subway wore surgical masks. Are they extreme germophobes? Conscientious folks getting over a cold? Oh, yes, he said, yes, of course, but that's only the rubric. The real reason to wear the mask is to spare others the discomfort of seeing your facial expression, to make your face into a disengaged, unreadable blank--to spare others the discomfort of firing up their mirror neurons in order to model your mood based on your outward expression. To make it possible to see without seeing. + +There is one city dweller that doesn't respect this delicate social contract: the closed-circuit television camera. Ubiquitous and demanding, CCTVs don't have any visible owners. They ... occur. They exist in the passive voice, the "mistakes were made" voice: "The camera recorded you." + +They are like an emergent property of the system, of being afraid and looking for cheap answers. And they are everywhere: In London, residents are photographed more than 300 times a day. + +The irony of security cameras is that they watch, but nobody cares that they're looking. Junkies don't worry about CCTVs. Crazed rapists and other purveyors of sudden, senseless violence aren't deterred. I was mugged twice on my old block in San Francisco by the crack dealers on my corner, within sight of two CCTVs and a police station. My rental car was robbed by a junkie in a Gastown garage in Vancouver in sight of a CCTV. + +Three mad kids followed my friend out of the Tube in London last year and murdered him on his doorstep. + +Crazy, desperate, violent people don't make rational calculus in regards to their lives. Anyone who becomes a junkie, crack dealer, or cellphone-stealing stickup artist is obviously bad at making life decisions. They're not deterred by surveillance. + +Yet the cameras proliferate, and replace human eyes. The cops on my block in San Francisco stayed in their cars and let the cameras do the watching. The Tube station didn't have any human guards after dark, just a CCTV to record the fare evaders. + +Now London city councils are installing new CCTVs with loudspeakers, operated by remote coppers who can lean in and make a speaker bark at you, "Citizen, pick up your litter." "Stop leering at that woman." "Move along." + +Yeah, that'll work. + +Every day the glass-domed cameras proliferate, and the gate-guarded mentality of the deep suburbs threatens to invade our cities. More doorbell webcams, more mailbox cams, more cams in our cars. + +The city of the future is shaping up to be a neighborly Panopticon, leeched of the cosmopolitan ability to see, and not be seen, where every nose pick is noted and logged and uploaded to the Internet. You don't have anything to hide, sure, but there's a reason we close the door to the bathroom before we drop our drawers. Everyone poops, but it takes a special kind of person to want to do it in public. + +The trick now is to contain the creeping cameras of the law. When the city surveils its citizens, it legitimizes our mutual surveillance--what's the difference between the cops watching your every move, or the mall owners watching you, or you doing it to the guy next door? + +I'm an optimist. I think our social contracts are stronger than our technology. They're the strongest bonds we have. We don't aim telescopes through each others' windows, because only creeps do that. + +But we need to reclaim the right to record our own lives as they proceed. We need to reverse decisions like the one that allowed the New York Metropolitan Transit Authority to line subway platforms with terrorism cameras, but said riders may not take snapshots in the station. We need to win back the right to photograph our human heritage in museums and galleries, and we need to beat back the snitch-cams rent-a-cops use to make our cameras stay in our pockets. + +They're our cities and our institutions. And we choose the future we want to live in. + +$$$$ + +1~ Hope you enjoyed it! The actual, physical object that corresponds to this book is superbly designed, portable, and makes a great gift: + +http://craphound.com/content/buy + +If you would rather make a donation, you can buy a copy of the book for a worthy school, library or other institution of your choosing: + +http://craphound.com/content/donate + +$$$$ + +1~ About the Author + +Cory Doctorow (craphound.com) is an award-winning novelist, activist, blogger and journalist. He is the co-editor of Boing Boing (boingboing.net), one of the most popular blogs in the world, and has contributed to The New York Times Sunday Magazine, The Economist, Forbes, Popular Science, Wired, Make, InformationWeek, Locus, Salon, Radar, and many other magazines, newspapers and websites. + +His novels and short story collections include *{Someone Comes to Town, Someone Leaves Town}*, *{Down and Out in the Magic Kingdom}*, *{Overclocked: Stories of the Future Present}* and his most recent novel, a political thriller for young adults called *{Little Brother}*, published by Tor Books in May, 2008. All of his novels and short story collections are available as free downloads under the terms of various Creative Commons licenses. + +Doctorow is the former European Director of the Electronic Frontier Foundation (eff.org) and has participated in many treaty-making, standards-setting and regulatory and legal battles in countries all over the world. In 2006/2007, he was the inaugural Canada/US Fulbright Chair in Public Diplomacy at the Annenberg Center at the University of Southern California. In 2007, he was also named one of the World Economic Forum's "Young Global Leaders" and one of Forbes Magazine's top 25 "Web Celebrities." + +Born in Toronto, Canada in 1971, he is a four-time university dropout. He now resides in London, England with his wife and baby daughter, where he does his best to avoid the ubiquitous surveillance cameras while roaming the world, speaking on copyright, freedom and the future. + +$$$$ diff --git a/data/v3/samples/democratizing_innovation.eric_von_hippel.sst b/data/v3/samples/democratizing_innovation.eric_von_hippel.sst new file mode 100644 index 0000000..f47afc5 --- /dev/null +++ b/data/v3/samples/democratizing_innovation.eric_von_hippel.sst @@ -0,0 +1,3096 @@ +% SiSU 2.0 + +@title: Democratizing Innovation + :language: US + +@creator: + :author: von Hipel, Eric + +@classify: + :type: Book + :topic_register: SiSU:markup sample:book;innovation;technological innovations:economic aspects;diffusion of innovations;democracy;open source software:innovation + :isbn: 9780262720472 + :oclc: 56880369 + +% HC79.T4H558 2005 +% 338'.064-dc22 2004061060 + +@rights: + :copyright: Copyright (C) 2005 Eric von Hippel. Exclusive rights to publish and sell this book in print form in English are licensed to The MIT Press. All other rights are reserved by the author. An electronic version of this book is available under a Creative Commons license. + :license: Creative Commons US Attribution-NonCommercial-NoDerivs license 2.0. http://creativecommons.org/licenses/by-nc-nd/2.0/legalcode Some Rights Reserved. You are free to copy, distribute, display and perform the work, under the following conditions: Attribution, you must give the original author credit; you may not use this work for commercial purposes; No Derivative Works, you may not alter, transform, or build-upon this work. For reuse or distribution you must make clear to others the license terms of this work. Any conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above. + +@date: + :published: 2005 + :created: 2005 + :issued: 2005 + :available: 2005 + :modified: 2005 + :valid: 2005 + +@make: + :breaks: new=:B,C; break=1 + :texpdf_font: Liberation Sans + :skin: skin_di_von_hippel + +@links: + {Democratizing Innovation}http://web.mit.edu/evhippel/www/democ1.htm + {Eric von Hippel}http://web.mit.edu/evhippel/www/ + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {@ Wikipedia}http://en.wikipedia.org/wiki/Democratizing_Innovation + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {Democratizing Innovation @ Amazon.com}http://www.amazon.com/Democratizing-Innovation-Eric-Von-Hippel/dp/0262720477 + {Democratizing Innovation @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=9780262720472 + +:A~ @title @author + +1~attribution Attribution~# + +Dedicated to all who are building the information commons.~# + +% Contents +% Acknowledgements ix +% 1 Introduction and Overview 1 +% 2 Development of Products by Lead Users 19 +% 3 Why Many Users Want Custom Products 33 +% 4 Users' Innovate-or-Buy Decisions 45 +% 5 Users' Low-Cost Innovation Niches 63 +% 6 Why Users Often Freely Reveal Their Innovations 77 +% 7 Innovation Communities 93 +% 8 Adapting Policy to User Innovation 107 +% 9 Democratizing Innovation 121 +% 10 Application: Searching for Lead User Innovations 133 +% 11 Application: Toolkits for User Innovation and Custom Design 147 +% 12 Linking User Innovation to Other Phenomena and Fields 165 +% Notes 179 +% Bibliography 183 +% Index 197 + +1~acknowledgements Acknowledgements~# + +Early in my research on the democratization of innovation I was very fortunate to gain five major academic mentors and friends. Nathan Rosenberg, Richard Nelson, Zvi Griliches, Edwin Mansfield, and Ann Carter all provided crucial support as I adopted economics as the organizing framework and toolset for my work. Later, I collaborated with a number of wonderful co-authors, all of whom are friends as well: Stan Finkelstein, Nikolaus Franke, Dietmar Harhoff, Joachim Henkel, Cornelius Herstatt, Ralph Katz, Georg von Krogh, Karim Lakhani, Gary Lilien, Christian Luthje, Pamela Morrison, William Riggs, John Roberts, Stephan Schrader, Mary Sonnack, Stefan Thomke, Marcie Tyre, and Glen Urban. Other excellent research collaborators and friends of long standing include Carliss Baldwin, Sonali Shah, Sarah Slaughter, and Lars Jeppesen.~# + +At some point as interest in a topic grows, there is a transition from dyadic academic relationships to a real research community. In my case, the essential person in enabling that transition was my close friend and colleague Dietmar Harhoff. He began to send wonderful Assistant Professors (Habilitanden) over from his university, Ludwig Maximilians Universität in Munich, to do collaborative research with me as MIT Visiting Scholars. They worked on issues related to the democratization of innovation while at MIT and then carried on when they returned to Europe. Now they are training others in their turn.~# + +I have also greatly benefited from close contacts with colleagues in industry. As Director of the MIT Innovation Lab, I work together with senior innovation managers in just a few companies to develop and try out innovation tools in actual company settings. Close intellectual colleagues and friends of many years standing in this sphere include Jim Euchner from Pitney-Bowes, Mary Sonnack and Roger Lacey from 3M, John Wright from IFF, Dave Richards from Nortel Networks, John Martin from Verizon, Ben Hyde from the Apache Foundation, Brian Behlendorf from the Apache Foundation and CollabNet, and Joan Churchill and Susan Hiestand from Lead User Concepts. Thank you so much for the huge (and often humbling) insights that your and our field experimentation has provided!~# + +I am also eager to acknowledge and thank my family for the joy and learning they experience and share with me. My wife Jessie is a professional editor and edited my first book in a wonderful way. For this book, however, time devoted to bringing up the children made a renewed editorial collaboration impossible. I hope the reader will not suffer unduly as a consequence! My children Christiana Dagmar and Eric James have watched me work on the book---indeed they could not avoid it as I often write at home. I hope they have been drawing the lesson that academic research can be really fun. Certainly, that is the lesson I drew from my father, Arthur von Hippel. He wrote his books in his study upstairs when I was a child and would often come down to the kitchen for a cup of coffee. In transit, he would throw up his hands and say, to no one in particular, "/{Why}/ do I choose to work on such difficult problems?" And then he would look deeply happy. Dad, I noticed the smile!~# + +Finally my warmest thanks to my MIT colleagues and students and also to MIT as an institution. MIT is a really inspiring place to work and learn from others. We all understand the requirements for good research and learning, and we all strive to contribute to a very supportive academic environment. And, of course, new people are always showing up with new and interesting ideas, so fun and learning are always being renewed!~# + +:B~ Democratizing Innovation + +1~ 1 Introduction and Overview + +When I say that innovation is being democratized, I mean that users of products and services---both firms and individual consumers---are increasingly able to innovate for themselves. User-centered innovation processes offer great advantages over the manufacturer-centric innovation development systems that have been the mainstay of commerce for hundreds of years. Users that innovate can develop exactly what they want, rather than relying on manufacturers to act as their (often very imperfect) agents. Moreover, individual users do not have to develop everything they need on their own: they can benefit from innovations developed and freely shared by others. +={Economic benefit, expectations of by lead users:by users+43;Manufacturers:innovation and+11;Users:See also Lead users|expectations of economic benefit by+33|innovation and+33} + +The trend toward democratization of innovation applies to information products such as software and also to physical products. As a quick illustration of the latter, consider the development of high-performance windsurfing techniques and equipment in Hawaii by an informal user group. High-performance windsurfing involves acrobatics such as jumps and flips and turns in mid-air. Larry Stanley, a pioneer in high-performance windsurfing, described the development of a major innovation in technique and equipment to Sonali Shah: +={Stanley, L.;Shah, S.;Information commons:See also Information communities|See also Innovation communities;windsurfing} + +In 1978 Jürgen Honscheid came over from West Germany for the first Hawaiian World Cup and discovered jumping, which was new to him, although Mike Horgan and I were jumping in 1974 and 1975. There was a new enthusiasm for jumping and we were all trying to outdo each other by jumping higher and higher. The problem was that . . . the riders flew off in mid-air because there was no way to keep the board with you---and as a result you hurt your feet, your legs, and the board. +={Honscheid, J.;Horgan, M.} + +Then I remembered the "Chip," a small experimental board we had built with footstraps, and thought "it's dumb not to use this for jumping." That's when I first started jumping with footstraps and discovering controlled flight. I could go so much faster than I ever thought and when you hit a wave it was like a motorcycle rider hitting a ramp; you just flew into the air. All of a sudden not only could you fly into the air, but you could land the thing, and not only that, but you could change direction in the air! + +The whole sport of high-performance windsurfing really started from that. As soon as I did it, there were about ten of us who sailed all the time together and within one or two days there were various boards out there that had footstraps of various kinds on them, and we were all going fast and jumping waves and stuff. It just kind of snowballed from there. (Shah 2000) +={Shah, S.;windsurfing+1} + +By 1998, more than a million people were engaged in windsurfing, and a large fraction of the boards sold incorporated the user-developed innovations for the high-performance sport. + +The user-centered innovation process just illustrated is in sharp contrast to the traditional model, in which products and services are developed by manufacturers in a closed way, the manufacturers using patents, copyrights, and other protections to prevent imitators from free riding on their innovation investments. In this traditional model, a user's only role is to have needs, which manufacturers then identify and fill by designing and producing new products. The manufacturer-centric model does fit some fields and conditions. However, a growing body of empirical work shows that users are the first to develop many and perhaps most new industrial and consumer products. Further, the contribution of users is growing steadily larger as a result of continuing advances in computer and communications capabilities. +={Intellectual property rights:See also Private-collective innovation|copyrights and|innovation and+2;Copyrights:See Intellectual property rights;Manufacturers:government policy and+2;Product development+2;Users:government policy and;Economic benefit, expectations of by lead users:by manufacturers+5;Economic benefit, expectations of by lead users:by manufacturers+12;Government policy:manufacturer innovation and+2;Manufacturers:expectations of economic benefit by+26} + +In this book I explain in detail how the emerging process of user-centric, democratized innovation works. I also explain how innovation by users provides a very necessary complement to and feedstock for manufacturer innovation. + +The ongoing shift of innovation to users has some very attractive qualities. It is becoming progressively easier for many users to get precisely what they want by designing it for themselves. And innovation by users appears to increase social welfare. At the same time, the ongoing shift of product-development activities from manufacturers to users is painful and difficult for many manufacturers. Open, distributed innovation is "attacking" a major structure of the social division of labor. Many firms and industries must make fundamental changes to long-held business models in order to adapt. Further, governmental policy and legislation sometimes preferentially supports innovation by manufacturers. Considerations of social welfare suggest that this must change. The workings of the intellectual property system are of special concern. But despite the difficulties, a democratized and user-centric system of innovation appears well worth striving for. +={Government policy:See also Digital Millennium Copyright Act|and social welfare|user innovation and;Social welfare:government policy and|innovation and+3|user innovation and+3} + +% check government policy + +Users, as the term will be used in this book, are firms or individual consumers that expect to benefit from /{using}/ a product or a service. In contrast, manufacturers expect to benefit from /{selling}/ a product or a service. A firm or an individual can have different relationships to different products or innovations. For example, Boeing is a manufacturer of airplanes, but it is also a user of machine tools. If we were examining innovations developed by Boeing for the airplanes it sells, we would consider Boeing a manufacturer-innovator in those cases. But if we were considering innovations in metal-forming machinery developed by Boeing for in-house use in building airplanes, we would categorize those as user-developed innovations and would categorize Boeing as a user-innovator in those cases. +={Users:characteristics of+2;Manufacturers:characteristics of+2} + +Innovation user and innovation manufacturer are the two general "functional" relationships between innovator and innovation. Users are unique in that they alone benefit /{directly}/ from innovations. All others (here lumped under the term "manufacturers") must sell innovation-related products or services to users, indirectly or directly, in order to profit from innovations. Thus, in order to profit, inventors must sell or license knowledge related to innovations, and manufacturers must sell products or services incorporating innovations. Similarly, suppliers of innovation-related materials or services---unless they have direct use for the innovations---must sell the materials or services in order to profit from the innovations. +={Innovation:See also Innovation communities|functional sources of;Suppliers} + +The user and manufacturer categorization of relationships between innovator and innovation can be extended to specific functions, attributes, or features of products and services. When this is done, it may turn out that different parties are associated with different attributes of a particular product or service. For example, householders are the users of the switching attribute of a household electric light switch---they use it to turn lights on and off. However, switches also have other attributes, such as "easy wiring" qualities, that may be used only by the electricians who install them. Therefore, if an electrician were to develop an improvement to the installation attributes of a switch, it would be considered a user-developed innovation. + +A brief overview of the contents of the book follows. + +!_ Development of Products by Lead Users (Chapter 2) +={Economic benefit, expectations of by lead users+6;Lead users+6:characteristics of+6|commercial attractiveness of+6|economic benefit, expectations of+6|identification of+6|innovation and+50|library information search system and+6} + +Empirical studies show that many users---from 10 percent to nearly 40 percent---engage in developing or modifying products. About half of these studies do not determine representative innovation frequencies; they were designed for other purposes. Nonetheless, when taken together, the findings make it very clear that users are doing a /{lot}/ of product modification and product development in many fields. +={innovation:attractiveness of+8} + +Studies of innovating users (both individuals and firms) show them to have the characteristics of "lead users." That is, they are ahead of the majority of users in their populations with respect to an important market trend, and they expect to gain relatively high benefits from a solution to the needs they have encountered there. The correlations found between innovation by users and lead user status are highly significant, and the effects are very large. + +Since lead users are at the leading edge of the market with respect to important market trends, one can guess that many of the novel products they develop for their own use will appeal to other users too and so might provide the basis for products manufacturers would wish to commercialize. This turns out to be the case. A number of studies have shown that many of the innovations reported by lead users are judged to be commercially attractive and/or have actually been commercialized by manufacturers. +={Manufacturers:lead users and+1} + +Research provides a firm grounding for these empirical findings. The two defining characteristics of lead users and the likelihood that they will develop new or modified products have been found to be highly correlated (Morrison et al. 2004). In addition, it has been found that the higher the intensity of lead user characteristics displayed by an innovator, the greater the commercial attractiveness of the innovation that the lead user develops (Franke and von Hippel 2003a). In figure 1.1, the increased concentration of innovations toward the right indicates that the likelihood of innovating is higher for users having higher lead user index values. The rise in average innovation attractiveness as one moves from left to right indicates that innovations developed by lead users tend to be more commercially attractive. (Innovation attractiveness is the sum of the novelty of the innovation and the expected future generality of market demand.) +={Morrison, Pamela;Franke, N.+5;von Hippel, E.+5} + +%% Figure 1.1 +% 2 3 4 5 6 7 8 9 10 11 12 13 14 +% 10 +% 5 +% 0 +% Attractiveness +% of +% innovations +% Innovation +% Estimated OLS curve +% "Lead-user?ness" of users + +{di_evh_f1-1.png}image + +!_ Figure 1.1 +User-innovators with stronger "lead user" characteristics develop innovations having higher appeal in the general marketplace. Estimated OLS function: Y = 2.06 + 0.57x, where Y represents attractiveness of innovation and x represents lead-user-ness of respondent. Adjusted R^{2}^ = 0.281; p = 0.002; n = 30. Source of data: Franke and von Hippel 2003. + +!_ Why Many Users Want Custom Products (Chapter 3) +={Custom products:heterogeneity of user needs and+2;User need+2;Users:innovate-or-buy decisions by+8|needs of+2} + +Why do so many users develop or modify products for their own use? Users may innovate if and as they want something that is not available on the market and are able and willing to pay for its development. It is likely that many users do not find what they want on the market. Meta-analysis of market-segmentation studies suggests that users' needs for products are highly heterogeneous in many fields (Franke and Reisinger 2003). +={Reisinger, H.} + +Mass manufacturers tend to follow a strategy of developing products that are designed to meet the needs of a large market segment well enough to induce purchase from and capture significant profits from a large number of customers. When users' needs are heterogeneous, this strategy of "a few sizes fit all" will leave many users somewhat dissatisfied with the commercial products on offer and probably will leave some users seriously dissatisfied. In a study of a sample of users of the security features of Apache web server software, Franke and von Hippel (2003b) found that users had a very high heterogeneity of need, and that many had a high willingness to pay to get precisely what they wanted. Nineteen percent of the users sampled actually innovated to tailor Apache more closely to their needs. Those who did were found to be significantly more satisfied. +={Apache web server software;Manufacturers:lead users and} + +!_ Users' Innovate-or-Buy Decisions (Chapter 4) +={Custom products:heterogeneity of user needs and+3|manufacturers and+3|agency costs and+2;User need+3;Users:needs of+3;Manufacturers:innovation and+9|innovate-or-buy decisions and+4;Users:agency costs and+2} + +Even if many users want "exactly right products" and are willing and able to pay for their development, why do users often do this for themselves rather than hire a custom manufacturer to develop a special just-right product for them? After all, custom manufacturers specialize in developing products for one or a few users. Since these firms are specialists, it is possible that they could design and build custom products for individual users or user firms faster, better, or cheaper than users could do this for themselves. Despite this possibility, several factors can drive users to innovate rather than buy. Both in the case of user firms and in the case of individual user-innovators, agency costs play a major role. In the case of individual user-innovators, enjoyment of the innovation process can also be important. +={Agency costs+1;Manufacturers:custom products and+2;Custom products:users and+3;Economic benefit, expectations of by lead users:by manufacturers+13} + +With respect to agency costs, consider that when a user develops its own custom product that user can be trusted to act in its own best interests. When a user hires a manufacturer to develop a custom product, the situation is more complex. The user is then a principal that has hired the custom manufacturer to act as its agent. If the interests of the principal and the agent are not the same, there will be agency costs. In general terms, agency costs are (1) costs incurred to monitor the agent to ensure that it (or he or she) follows the interests of the principal, (2) the cost incurred by the agent to commit itself not to act against the principal's interest (the "bonding cost"), and (3) costs associated with an outcome that does not fully serve the interests of the principal (Jensen and Meckling 1976). In the specific instance of product and service development, a major divergence of interests between user and custom manufacturer does exist: the user wants to get precisely what it needs, to the extent that it can afford to do so. In contrast, the custom manufacturer wants to lower its development costs by incorporating solution elements it already has or that it predicts others will want in the future---even if by doing so it does not serve its present client's needs as well as it could. +={Jensen, M.;Meckling, W.} + +A user wants to preserve its need specification because that specification is chosen to make /{that user's}/ overall solution quality as high as possible at the desired price. For example, an individual user may specify a mountain-climbing boot that will precisely fit his unique climbing technique and allow him to climb Everest more easily. Any deviations in boot design will require compensating modifications in the climber's carefully practiced and deeply ingrained climbing technique---a much more costly solution from the user's point of view. A custom boot manufacturer, in contrast, will have a strong incentive to incorporate the materials and processes it has in stock and expects to use in future even if this produces a boot that is not precisely right for the present customer. For example, the manufacturer will not want to learn a new way to bond boot components together even if that would produce the best custom result for one client. The net result is that when one or a few users want something special they will often get the best result by innovating for themselves. +={Innovation communities:See also Information communities+1} + +A small model of the innovate-or-buy decision follows. This model shows in a quantitative way that user firms with unique needs will always be better off developing new products for themselves. It also shows that development by manufacturers can be the most economical option when n or more user firms want the same thing. However, when the number of user firms wanting the same thing falls between 1 and n, manufacturers may not find it profitable to develop a new product for just a few users. In that case, more than one user may invest in developing the same thing independently, owing to market failure. This results in a waste of resources from the point of view of social welfare. The problem can be addressed by new institutional forms, such as the user innovation communities that will be studied later in this book. +={Innovation communities:social welfare, and;Manufacturers:social welfare and+21;Social welfare:manufacturer innovation and+21|user innovation and+21} + +Chapter 4 concludes by pointing out that an additional incentive can drive individual user-innovators to innovate rather than buy: they may value the /{process}/ of innovating because of the enjoyment or learning that it brings them. It might seem strange that user-innovators can enjoy product development enough to want to do it themselves---after all, manufacturers pay their product developers to do such work! On the other hand, it is also clear that enjoyment of problem solving is a motivator for many individual problem solvers in at least some fields. Consider for example the millions of crossword-puzzle aficionados. Clearly, for these individuals enjoyment of the problem-solving process rather than the solution is the goal. One can easily test this by attempting to offer a puzzle solver a completed puzzle---the very output he or she is working so hard to create. One will very likely be rejected with the rebuke that one should not spoil the fun! Pleasure as a motivator can apply to the development of commercially useful innovations as well. Studies of the motivations of volunteer contributors of code to widely used software products have shown that these individuals too are often strongly motivated to innovate by the joy and learning they find in this work (Hertel et al. 2003; Lakhani and Wolf 2005). +={Hertel, G.;Lakhani, K.;Wolf, B.;Innovation process;Users:innovation process and+7;Free software:See also Open source software;Hackers;Herrmann, S.} + +!_ Users' Low-Cost Innovation Niches (Chapter 5) +={Users:low-cost innovation niches of+3} + +An exploration of the basic processes of product and service development show that users and manufacturers tend to develop different /{types}/ of innovations. This is due in part to information asymmetries: users and manufacturers tend to know different things. Product developers need two types of information in order to succeed at their work: need and context-of-use information (generated by users) and generic solution information (often initially generated by manufacturers specializing in a particular type of solution). Bringing these two types of information together is not easy. Both need information and solution information are often very "sticky"---that is, costly to move from the site where the information was generated to other sites. As a result, users generally have a more accurate and more detailed model of their needs than manufacturers have, while manufacturers have a better model of the solution approach in which they specialize than the user has. +={Innovation process;Users:innovation process and;Information asymmetries+3;Manufacturers:information asymmetries of+2;Sticky information+2:innovation and+2;Users:information asymmetries of+2;Local information+2} + +When information is sticky, innovators tend to rely largely on information they already have in stock. One consequence of the information asymmetry between users and manufacturers is that users tend to develop innovations that are functionally novel, requiring a great deal of user-need information and use-context information for their development. In contrast, manufacturers tend to develop innovations that are improvements on well-known needs and that require a rich understanding of solution information for their development. For example, firms that use inventory-management systems, such as retailers, tend to be the developers of new approaches to inventory management. In contrast, manufacturers of inventory-management systems and equipment tend to develop improvements to the equipment used to implement these user-devised approaches (Ogawa 1998). +={Ogawa, S.;Innovation:functional sources of} + +If we extend the information-asymmetry argument one step further, we see that information stickiness implies that information on hand will also differ among /{individual}/ users and manufacturers. The information assets of some particular user (or some particular manufacturer) will be closest to what is required to develop a particular innovation, and so the cost of developing that innovation will be relatively low for that user or manufacturer. The net result is that user innovation activities will be distributed across many users according to their information endowments. With respect to innovation, one user is by no means a perfect substitute for another. + +!_ Why Users Often Freely Reveal Their Innovations (Chapter 6) +={Free revealing of innovation information:case for+5|evidence of+5|in information communities+5|intellectual property rights and+5|users and+5;Users:free revealing by+5} + +The social efficiency of a system in which individual innovations are developed by individual users is increased if users somehow diffuse what they have developed to others. Manufacturer-innovators /{partially}/ achieve this when they sell a product or a service on the open market (partially because they diffuse the product incorporating the innovation, but often not all the information that others would need to fully understand and replicate it). If user-innovators do not somehow also diffuse what they have done, multiple users with very similar needs will have to independently develop very similar innovations---a poor use of resources from the viewpoint of social welfare. Empirical research shows that users often do achieve widespread diffusion by an unexpected means: they often "freely reveal" what they have developed. When we say that an innovator freely reveals information about a product or service it has developed, we mean that all intellectual property rights to that information are voluntarily given up by the innovator, and all interested parties are given access to it---the information becomes a public good. +={Free revealing of innovation information:manufacturers and+2;Innovation:distributed process of+4;Intellectual property rights:free revealing and;Manufacturers:free revealing and+2} + +The empirical finding that users often freely reveal their innovations has been a major surprise to innovation researchers. On the face of it, if a user-innovator's proprietary information has value to others, one would think that the user would strive to prevent free diffusion rather than help others to free ride on what it has developed at private cost. Nonetheless, it is now very clear that individual users and user firms---and sometimes manufacturers---often freely reveal detailed information about their innovations. + +The practices visible in "open source" software development were important in bringing this phenomenon to general awareness. In these projects it was clear /{policy}/ that project contributors would routinely and systematically freely reveal code they had developed at private expense (Raymond 1999). However, free revealing of product innovations has a history that began long before the advent of open source software. Allen, in his 1983 study of the eighteenth-century iron industry, was probably the first to consider the phenomon systematically. Later, Nuvolari (2004) discussed free revealing in the early history of mine pumping engines. Contemporary free revealing by users has been documented by von Hippel and Finkelstein (1979) for medical equipment, by Lim (2000) for semiconductor process equipment, by Morrison, Roberts, and von Hippel (2000) for library information systems, and by Franke and Shah (2003) for sporting equipment. Henkel (2003) has documented free revealing among manufacturers in the case of embedded Linux software. +={Allen, R.;Finkelstein, S.;Franke, N.;Henkel, J.;Lim, K.;Linux;Morrison, Pamela;Nuvolari, A.;Raymond, E.;Roberts, J.;Shah, S.;von Hippel, E.;Free revealing of innovation information:open source software and+7;Intellectual property rights:open source software and+1;Open source software:See also Free software communities and|free revealing and+7|intellectual property rights and+2;Library information search system} + +Innovators often freely reveal because it is often the best or the only practical option available to them. Hiding an innovation as a trade secret is unlikely to be successful for long: too many generally know similar things, and some holders of the "secret" information stand to lose little or nothing by freely revealing what they know. Studies find that innovators in many fields view patents as having only limited value. Copyright protection and copyright licensing are applicable only to "writings," such as books, graphic images, and computer software. +={Intellectual property rights:copyrights and|trade secrets and|free revealing and|licensing of|patents and;Government policy:trade secrets and} + +Active efforts by innovators to freely reveal---as opposed to sullen acceptance---are explicable because free revealing can provide innovators with significant private benefits as well as losses or risks of loss. Users who freely reveal what they have done often find that others then improve or suggest improvements to the innovation, to mutual benefit (Raymond 1999). Freely revealing users also may benefit from enhancement of reputation, from positive network effects due to increased diffusion of their innovation, and from other factors. Being the first to freely reveal a particular innovation can also enhance the benefits received, and so there can actually be a rush to reveal, much as scientists rush to publish in order to gain the benefits associated with being the first to have made a particular advancement. +={Raymond, E.} + +!_ Innovation Communities (Chapter 7) +={Innovation communities+3} + +Innovation by users tends to be widely distributed rather than concentrated among just a very few very innovative users. As a result, it is important for user-innovators to find ways to combine and leverage their efforts. Users achieve this by engaging in many forms of cooperation. Direct, informal user-to-user cooperation (assisting others to innovate, answering questions, and so on) is common. Organized cooperation is also common, with users joining together in networks and communities that provide useful structures and tools for their interactions and for the distribution of innovations. Innovation communities can increase the speed and effectiveness with which users and also manufacturers can develop and test and diffuse their innovations. They also can greatly increase the ease with which innovators can build larger systems from interlinkable modules created by community participants. +={Users:innovation communities and+2} + +Free and open source software projects are a relatively well-developed and very successful form of Internet-based innovation community. However, innovation communities are by no means restricted to software or even to information products, and they can play a major role in the development of physical products. Franke and Shah (2003) have documented the value that user innovation communities can provide to user-innovators developing physical products in the field of sporting equipment. The analogy to open source innovation communities is clear. +={Franke, N.;Shah, S.;Free software;Innovation communities:open source software and|physical products and|sporting equipment and;Open source software:innovation communities and} + +The collective or community effort to provide a public good---which is what freely revealed innovations are---has traditionally been explored in the literature on "collective action." However, behaviors seen in extant innovation communities fail to correspond to that literature at major points. In essence, innovation communities appear to be more robust with respect to recruiting and rewarding members than the literature would predict. Georg von Krogh and I attribute this to innovation contributors' obtaining some private rewards that are not shared equally by free riders (those who take without contributing). For example, a product that a user-innovator develops and freely reveals might be perfectly suited to that user-innovator's requirements but less well suited to the requirements of free riders. Innovation communities thus illustrate a "private-collective" model of innovation incentive (von Hippel and von Krogh 2003). +={von Hippel, E.;von Krogh, G.;Free revealing of innovation information:collective action model for|private-collective model for;Innovation communities:and sources of innovation;Private-collective model;Social welfare:private-collective model and+2;Users:social welfare and+6} + +!_ Adapting Policy to User Innovation (Chapter 8) +={Government policy:social welfare and+5|user innovation and+5;Social welfare:and government policy+5} + +Is innovation by users a "good thing?" Welfare economists answer such a question by studying how a phenomenon or a change affects social welfare. Henkel and von Hippel (2005) explored the social welfare implications of user innovation. They found that, relative to a world in which only manufacturers innovate, social welfare is very probably increased by the presence of innovations freely revealed by users. This finding implies that policy making should support user innovation, or at least should ensure that legislation and regulations do not favor manufacturers at the expense of user-innovators. +={Henkel, J.;von Hippel, E.;Free revealing of innovation information:manufacturers and} + +The transitions required of policy making to achieve neutrality with respect to user innovation vs. manufacturer innovation are significant. Consider the impact on open and distributed innovation of past and current policy decisions. Research done in the past 30 years has convinced many academics that intellectual property law is sometimes or often not having its intended effect. Intellectual property law was intended to increase the amount of innovation investment. Instead, it now appears that there are economies of scope in both patenting and copyright that allow firms to use these forms of intellectual property law in ways that are directly opposed to the intent of policy makers and to the public welfare. Major firms can invest to develop large portfolios of patents. They can then use these to create "patent thickets"---dense networks of patent claims that give them plausible grounds for threatening to sue across a wide range of intellectual property. They may do this to prevent others from introducing a superior innovation and/or to demand licenses from weaker competitors on favorable terms (Shapiro 2001). Movie, publishing, and software firms can use large collections of copyrighted work to a similar purpose (Benkler 2002). In view of the distributed nature of innovation by users, with each tending to create a relatively small amount of intellectual property, users are likely to be disadvantaged by such strategies. +={Benkler, Y.;Shapiro, C.;Intellectual property rights:copyrights and+1;Government policy:copyrights and+1|patents and|patent thickets and;Intellectual property rights:patents and|patent thickets and|licensing of} + +It is also important to note that users (and manufacturers) tend to build prototypes of their innovations economically by modifying products already available on the market to serve a new purpose. Laws such as the (US) Digital Millennium Copyright Act, intended to prevent consumers from illegally copying protected works, also can have the unintended side effect of preventing users from modifying products that they purchase (Varian 2002). Both fairness and social welfare considerations suggest that innovation-related policies should be made neutral with respect to the sources of innovation. +={Digital Millennium Copyright Act;Varian, H.} + +It may be that current impediments to user innovation will be solved by legislation or by policy making. However, beneficiaries of existing law and policy will predictably resist change. Fortunately, a way to get around some of these problems is in the hands of innovators themselves. Suppose many innovators in a particular field decide to freely reveal what they have developed, as they often have reason to do. In that case, users can collectively create an information commons (a collection of information freely available to all) containing substitutes for some or a great deal of information now held as private intellectual property. Then user-innovators can work around the strictures of intellectual property law by simply using these freely revealed substitutes (Lessig 2001). This is essentially what is happening in the field of software. For many problems, user-innovators in that field now have a choice between proprietary, closed software provided by Microsoft and other firms and open source software that they can legally download from the Internet and legally modify to serve their own specific needs. +={Lessig, L.;Microsoft;Free revealing of innovation information:collective action model for|in information communities|intellectual property rights and|users and+1;Information commons;Intellectual property rights:free revealing and|information communities and;Microsoft;User need;Users:free revealing by} + +Policy making that levels the playing field between users and manufacturers will force more rapid change onto manufacturers but will by no means destroy them. Experience in fields where open and distributed innovation processes are far advanced show how manufacturers can and do adapt. Some, for example, learn to supply proprietary platform products that offer user-innovators a framework upon which to develop and use their improvements. +={Manufacturers:innovation and+7} + +!_ Democratizing Innovation (Chapter 9) + +Users' ability to innovate is improving /{radically}/ and /{rapidly}/ as a result of the steadily improving quality of computer software and hardware, improved access to easy-to-use tools and components for innovation, and access to a steadily richer innovation commons. Today, user firms and even individual hobbyists have access to sophisticated programming tools for software and sophisticated CAD design tools for hardware and electronics. These information-based tools can be run on a personal computer, and they are rapidly coming down in price. As a consequence, innovation by users will continue to grow even if the degree of heterogeneity of need and willingness to invest in obtaining a precisely right product remains constant. +={Free revealing of innovation information:users and;Task partitioning+5:See also Toolkits;Toolkits:manufacturers and+5|task partitioning+5|user-friendly tools for|users and+5;User need;Users:innovation and+5} + +Equivalents of the innovation resources described above have long been available within corporations to a few. Senior designers at firms have long been supplied with engineers and designers under their direct control, and with the resources needed to quickly construct and test prototype designs. The same is true in other fields, including automotive design and clothing design: just think of the staffs of engineers and modelmakers supplied so that top auto designers can quickly realize and test their designs. + +But if, as we have seen, the information needed to innovate in important ways is widely distributed, the traditional pattern of concentrating innovation-support resources on a few individuals is hugely inefficient. High-cost resources for innovation support cannot efficiently be allocated to "the right people with the right information:" it is very difficult to know who these people may be before they develop an innovation that turns out to have general value. When the cost of high-quality resources for design and prototyping becomes very low (the trend we have described), these resources can be diffused very widely, and the allocation problem diminishes in significance. The net result is and will be to democratize the opportunity to create. +={Manufacturers:innovation and+9;Users:innovation and+9} + +On a level playing field, users will be an increasingly important source of innovation and will increasingly substitute for or complement manufacturers' innovation-related activities. In the case of information products, users have the possibility of largely or completely doing without the services of manufacturers. Open source software projects are object lessons that teach us that users can create, produce, diffuse, provide user field support for, update, and use complex products by and for themselves in the context of user innovation communities. In physical product fields, product development by users can evolve to the point of largely or totally supplanting product development---but not product manufacturing---by manufacturers. (The economies of scale associated with manufacturing and distributing physical products give manufacturers an advantage over "do-it-yourself" users in those activities.) +={Custom products:manufacturers and+2|users and+2;Innovation communities+1:open source software and|physical products and;Manufacturers:custom products and+2;Users:custom products and+2} + +The evolving pattern of the locus of product development in kitesurfing illustrates how users can displace manufacturers from the role of product developer. In that industry, the collective product-design and testing work of a user innovation community has clearly become superior in both quality and quantity relative to the levels of in-house development effort that manufacturers of kitesurfing equipment can justify. Accordingly, manufacturers of such equipment are increasingly shifting away from product design and focusing on producing product designs first developed and tested by user innovation communities. +={Innovation communities:kitesurfing and;Kitesurfing} + +How can or should manufacturers adapt to users' encroachment on elements of their traditional business activities? There are three general possibilities: (1) Produce user-developed innovations for general commercial sale and/or offer custom manufacturing to specific users. (2) Sell kits of product-design tools and/or "product platforms" to ease users' innovation-related tasks. (3) Sell products or services that are complementary to user-developed innovations. Firms in fields where users are already very active in product design are experimenting with all these possibilities. +={Custom products:product platforms and|toolkits and;Toolkits:platform products and} + +!_ Application: Searching for Lead User Innovations (Chapter 10) +={Custom products:manufacturers and+2;Manufacturers:custom products and+2;Users:custom products and+2;Lead users+59:idea generation and+2|identification of+2|innovation and+2} + +Manufacturers design their innovation processes around the way they think the process works. The vast majority of manufacturers still think that product development and service development are always done by manufacturers, and that their job is always to find a need and fill it rather than to sometimes find and commercialize an innovation that lead users have already developed. Accordingly, manufacturers have set up market-research departments to explore the needs of users in the target market, product-development groups to think up suitable products to address those needs, and so forth. The needs and prototype solutions of lead users---if encountered at all---are typically rejected as outliers of no interest. Indeed, when lead users' innovations do enter a firm's product line---and they have been shown to be the actual source of many major innovations for many firms--- they typically arrive with a lag and by an unconventional and unsystematic route. For example, a manufacturer may "discover" a lead user innovation only when the innovating user firm contacts the manufacturer with a proposal to produce its design in volume to supply its own in-house needs. Or sales or service people employed by a manufacturer may spot a promising prototype during a visit to a customer's site. +={Marketing research+1} + +Modification of firms' innovation processes to /{systematically}/ search for and further develop innovations created by lead users can provide manufacturers with a better interface to the innovation process as it actually works, and so provide better performance. A natural experiment conducted at 3M illustrates this possibility. Annual sales of lead user product ideas generated by the average lead user project at 3M were conservatively forecast by management to be more than 8 times the sales forecast for new products developed in the traditional manner---$146 million versus $18 million per year. In addition, lead user projects were found to generate ideas for new product lines, while traditional market-research methods were found to produce ideas for incremental improvements to existing product lines. As a consequence, 3M divisions funding lead user project ideas experienced their highest rate of major product line generation in the past 50 years (Lilien et al. 2002). +={Lilien, G.;Lead users:3M and;3M Corporation} + +!_ Application: Toolkits for User Innovation and Custom Design (Chapter 11) +={Toolkits+2} + +Firms that understand the distributed innovation process and users' roles in it can /{change}/ factors affecting lead user innovation and so affect its rate and direction in ways they value. Toolkits for user innovation custom design offer one way of doing this. This approach involves partitioning product-development and service-development projects into solution-information-intensive subtasks and need-information-intensive subtasks. Need-intensive subtasks are then assigned to users along with a kit of tools that enable them to effectively execute the tasks assigned to them. The resulting co-location of sticky information and problem-solving activity makes innovation within the solution space offered by a particular toolkit cheaper for users. It accordingly attracts them to the toolkit and so influences what they develop and how they develop it. The custom semiconductor industry was an early adopter of toolkits. In 2003, more than $15 billion worth of semiconductors were produced that had been designed using this approach. +={Toolkits:platform products and+2;Lead users:innovation and;Sticky information:innovation and} + +Manufacturers that adopt the toolkit approach to supporting and channeling user innovation typically face major changes in their business models, and important changes in industry structure may also follow. For example, as a result of the introduction of toolkits to the field of semiconductor manufacture, custom semiconductor manufacturers---formerly providers of both design and manufacturing services to customers---lost much of the work of custom product design to customers. Many of these manufacturers then became specialist silicon foundries, supplying production services primarily. Manufacturers may or may not wish to make such changes. However, experience in fields where toolkits have been deployed shows that customers tend to prefer designing their own custom products with the aid of a toolkit over traditional manufacturer-centric development practices. As a consequence, the only real choice for manufacturers in a field appropriate to the deployment of toolkits may be whether to lead or to follow in the transition to toolkits. + +!_ Linking User Innovation to Other Phenomena and Fields (Chapter 12) + +In chapter 12 I discuss links between user innovation and some related phenomena and literatures. With respect to phenomena, I point out the relationship of user innovation to /{information}/ communities, of which user innovation communities are a subset. One open information community is the online encyclopedia Wikipedia (www.wikipedia.org). Other such communities include the many specialized Internet sites where individuals with both common and rare medical conditions can find one another and can find specialists in those conditions. Many of the advantages associated with user innovation communities also apply to open information networks and communities. Analyses appropriate to information communities follow the same overall pattern as the analyses provided in this book for innovation communities. However, they are also simpler, because in open information communities there may be little or no proprietary information being transacted and thus little or no risk of related losses for participants. +={Wikipedia;Information commons;Information communities:See also Innovation communities;Innovation communities+2:and sources of innovation+2;Intellectual property rights:information communities and+2|innovation and+2} + +Next I discuss links between user-centric innovation phenomena and the literature on the economics of knowledge that have been forged by Foray (2004) and Weber (2004). I also discuss how Porter's 1991 work on the competitive advantage of nations can be extended to incorporate findings on nations' lead users as product developers. Finally, I point out how findings explained in this book link to and complement research on the Social Construction of Technology (Pinch and Bijker 1987). +={Bijker, W.;Foray, D.;Pinch, T.;Weber, S.;Porter, M.;Knowledge, production and distribution of} + +I conclude this introductory chapter by reemphasizing that user innovation, free revealing, and user innovation communities will flourish under many but not all conditions. What we know about manufacturer-centered innovation is still valid; however, lead-user-centered innovation patterns are increasingly important, and they present major new opportunities and challenges for us all. +={Free revealing of innovation information:free revealing and;Users:free revealing by} + +1~ 2 Development of Products by Lead Users + +The idea that novel products and services are developed by manufacturers is deeply ingrained in both traditional expectations and scholarship. When we as users of products complain about the shortcomings of an existing product or wish for a new one, we commonly think that "they" should develop it---not us. Even the conventional term for an individual end user, "consumer," implicitly suggests that users are not active in product and service development. Nonetheless, there is now very strong empirical evidence that product development and modification by both user firms and users as individual consumers is frequent, pervasive, and important. +={Consumers+5} + +I begin this chapter by reviewing the evidence that many users indeed do develop and modify products for their own use in many fields. I then show that innovation is concentrated among /{lead}/ users, and that lead users' innovations often become commercial products. + +!_ Many Users Innovate + +The evidence on user innovation frequency and pervasiveness is summarized in table 2.1. We see here that the frequency with which user firms and individual consumers develop or modify products for their own use range from 10 percent to nearly 40 percent in fields studied to date. The matter has been studied across a wide range of industrial product types where innovating users are user firms, and also in various types of sporting equipment, where innovating users are individual consumers. +={Lead users:sporting equipment and+1;Sporting equipment:lead users and+1} + +The studies cited in table 2.1 clearly show that a lot of product development and modification by users is going on. However, these findings should not be taken to reflect innovation rates in overall populations of users. All of the studies probably were affected by a response bias. (That is, if someone sends a questionnaire about whether you innovated or not, you might be more inclined to respond if your answer is "Yes."). Also, each of the studies looked at innovation rates affecting a particular product type among users who care a great deal about that product type. Thus, university surgeons (study 4 in table 2.1) care a great deal about having just-right surgical equipment, just as serious mountain bikers (study 8) care a great deal about having just-right equipment for their sport. As the intensity of interest goes down, it is likely that rates of user innovation drop too. This is probably what is going on in the case of the study of purchasers of outdoor consumer products (study 6). All we are told about that sample of users of outdoor consumer products is that they are recipients of one or more mail order catalogs from suppliers of relatively general outdoor items---winter jackets, sleeping bags, and so on. Despite the fact that these users were asked if they have developed or modified any item in this broad category of goods (rather than a very specific one such as a mountain bike), just 10 percent answered in the affirmative. Of course, 10 percent or even 5 percent of a user population numbering in the tens of millions worldwide is still a very large number---so we again realize that many users are developing and modifying products. +={Lead users:outdoor consumer products and;Outdoor products} + +!_ Table 2.1 +Many respondents reported developing or modifying products for their own use in the eight product areas listed here. +={Lüthje, C.+1;Urban, G.+1;Franke, N.+1;Herstatt, C.+1;Morrison, Pamela+1;von Hippel, E.+1;Lead users:Apache web server software and+1r|library information search system and+1|mountain biking and+1|outdoor consumer products and+1|pipe hanger hardware and+1|printed circuit CAD software and+1|surgical equipment and+3;Library information search system+1;Mountain biking+1;Outdoor products+1;Pipe hanger hardware+1;Printed circuit CAD software+1;Surgical equipment+1} + +table{~h c4; 20; 45; 15; 20; + +~ +Number and type of Users Sampled +Percentage developing and building product for own use +Source + +Industrial products +~ +~ +~ + +1. Printed circuit CAD software +136 user firm attendees at PC-CAD conference +24.3% +Urban and von Hippel 1988 + +2. Pipe hanger hardware +Employees in 74 pipe hanger installation firms +36% +Herstatt and von Hippel 1992 + +3. Library information systems +Employees in 102 Australian libraries using computerized OPAC library information systems +26% +Morrison et al. 2000 + +4. Surgical equipment +261 surgeons working in university clinics in Germany +22% +Lüthje 2003 + +5. Apache OS server software security features +131 technically sophisticated Apache features users (webmasters) +19.1% +Franke and von Hippel 2003 + +Consumer products +~ +~ +~ + +6. Outdoor consumer products +153 recipients of mail order catalogs for outdoor activity products for consumers +9.8% +Lüthje 2004 + +7. "Extreme" sporting equipment +197 members of 4 specialized sporting clubs in 4 "extreme" sports +37.8% +Franke and Shah 2003 + +8. Mountain biking equipment +291 mountain bikers in a geographic region +19.2% +Lüthje et al. + +}table + +The cited studies also do not set an upper or a lower bound on the commercial or technical importance of user-developed products and product modifications that they report, and it is likely that most are of minor significance. However, most innovations from any source are minor, so user-innovators are no exception in this regard. Further, to say an innovation is minor is not the same as saying it is trivial: minor innovations are cumulatively responsible for much or most technical progress. Hollander (1965) found that about 80 percent of unit cost reductions in Rayon manufacture were the cumulative result of minor technical changes. Knight (1963, VII, pp. 2--3) measured performance advances in general-purpose digital computers and found, similarly, that "these advances occur as the result of equipment designers using their knowledge of electronics technology to produce a multitude of small improvements that together produce significant performance advances." +={Hollander, S.;Knight, K.;Users:process improvements by+1} + +Although most products and product modifications that users or others develop will be minor, users are by no means restricted to developing minor or incremental innovations. Qualitative observations have long indicated that important process improvements are developed by users. Smith (1776, pp. 11--13) pointed out the importance of "the invention of a great number of machines which facilitate and abridge labor, and enable one man to do the work of many." He also noted that "a great part of the machines made use of in those manufactures in which labor is most subdivided, were originally the invention of common workmen, who, being each of them employed in some very simple operation, naturally turned their thoughts towards finding out easier and readier methods of performing it." Rosenberg (1976) studied the history of the US machine tool industry and found that important and basic machine types like lathes and milling machines were first developed and built by user firms having a strong need for them. Textile manufacturing firms, gun manufacturers and sewing machine manufacturers were important early user-developers of machine tools. Other studies show quantitatively that some of the most important and novel products and processes have been developed by user firms and by individual users. Enos (1962) reported that nearly all the most important innovations in oil refining were developed by user firms. Freeman (1968) found that the most widely licensed chemical production processes were developed by user firms. Von Hippel (1988) found that users were the developers of about 80 percent of the most important scientific instrument innovations, and also the developers of most of the major innovations in semiconductor processing. Pavitt (1984) found that a considerable fraction of invention by British firms was for in-house use. Shah (2000) found that the most commercially important equipment innovations in four sporting fields tended to be developed by individual users. +={Enos, J.;Freeman, C.;Pavitt, K.;Rosenberg, N.;Shah, S.;Smith, A.;von Hippel, E.+23;Sporting equipment:lead users and} + +!_ Lead User Theory +={Lead users:theory of+3} + +A second major finding of empirical research into innovation by users is that most user-developed products and product modifications (and the most commercially attractive ones) are developed by users with "lead user" characteristics. Recall from chapter 1 that lead users are defined as members of a user population having two distinguishing characteristics: (1) They are at the leading edge of an important market trend(s), and so are currently experiencing needs that will later be experienced by many users in that market. (2) They anticipate relatively high benefits from obtaining a solution to their needs, and so may innovate. +={Economic benefit, expectations of by lead users+1;Lead users:economic benefit, expectations of+1} + +The theory that led to defining "lead users" in terms of these two characteristics was derived as follows (von Hippel 1986). First, the "ahead on an important market trend" variable was included because of its assumed effect on the commercial attractiveness of innovations developed by users residing at a leading-edge position in a market. Market needs are not static---they evolve, and often they are driven by important underlying trends. If people are distributed with respect to such trends as diffusion theory indicates, then people at the leading edges of important trends will be experiencing needs today (or this year) that the bulk of the market will experience tomorrow (or next year). And, if users develop and modify products to satisfy their own needs, then the innovations that lead users develop should later be attractive to many. The expected benefits variable and its link to innovation likelihood was derived from studies of industrial product and process innovations. These showed that the greater the benefit an entity expects to obtain from a needed innovation, the greater will be that entity's investment in obtaining a solution, where a solution is an innovation either developed or purchased (Schmookler 1966; Mansfield 1968). +={Mansfield, E.;Schmookler, J.} + +Empirical studies to date have confirmed lead user theory. Morrison, Roberts, and Midgely (2004) studied the characteristics of innovating and non-innovating users of computerized library information systems in a sample of Australian libraries. They found that the two lead user characteristics were distributed in a continuous, unimodal manner in that sample. They also found that the two characteristics of lead users and the actual development of innovations by users were highly correlated. Franke and von Hippel (2003b) confirmed these findings in a study of innovating and non-innovating users of Apache web server software. They also found that the commercial attractiveness of innovations developed by users increased along with the strength of those users' lead user characteristics. +={Franke, N.;Midgely, David;Morrison, Pamela+19;Roberts, J.;Apache web server software;Lead users:Apache web server software and|library information search system and;Library information search system} + +!_ Evidence of Innovation by Lead Users + +Several studies have found that user innovation is largely the province of users that have lead user characteristics, and that products lead users develop often form the basis for commercial products. These general findings appear robust: the studies have used a variety of techniques and have addressed a variety of markets and innovator types. Brief reviews of four studies will convey the essence of what has been found. + +!_ Innovation in Industrial Product User Firms + +In the first empirical study of lead users' role in innovation, Urban and von Hippel (1988) studied user innovation activity related to a type of software used to design printed circuit boards. A major market trend to which printed circuit computer-aided design software (PC-CAD) must respond is the steady movement toward packing electronic circuitry more densely onto circuit boards. Higher density means one that can shrink boards in overall size and that enables the circuits they contain to operate faster---both strongly desired attributes. Designing a board at the leading edge of what is technically attainable in density at any particular time is a very demanding task. It involves some combination of learning to make the printed circuit wires narrower, learning how to add more layers of circuitry to a board, and using smaller electronic components. +={Urban, G.+1;Lead users:printed circuit CAD software and+3;Lead users:printed circuit CAD software and+3;Printed circuit CAD software+3} + +To explore the link between user innovation and needs at the leading edge of the density trend, Urban and von Hippel collected a sample of 138 user-firm employees who had attended a trade show on the topic of PC-CAD. To learn the position of each firm on the density trend, they asked questions about the density of the boards that each PC-CAD user firm was currently producing. To learn about each user's likely expected benefits from improvements to PC-CAD, they asked questions about how satisfied each respondent was with their firm's present PC-CAD capabilities. To learn about users' innovation activities, they asked questions about whether each firm had modified or built its own PC-CAD software for its own in-house use. + +Users' responses were cluster analyzed, and clear lead user (n = 38) and non-lead-user (n = 98) clusters were found. Users in the lead user cluster were those that made the densest boards on average and that also were dissatisfied with their PC-CAD capabilities. In other words, they were at the leading edge of an important market trend, and they had a high incentive to innovate to improve their capabilities. Strikingly, 87 percent of users in the lead user cluster reported either developing or modifying the PC-CAD software that they used. In contrast, only 1 percent of non-lead users reported this type of innovation. Clearly, in this case user innovation was very strongly concentrated in the lead user segment of the user population. A discriminant analysis on indicated that "build own system" was the most important indicator of membership in the lead user cluster. The discriminant analysis had 95.6 percent correct classification of cluster membership. + +The commercial attractiveness of PC-CAD solutions developed by lead users was high. This was tested by determining whether lead users and more ordinary users preferred a new PC-CAD system concept containing features developed by lead users over the best commercial PC-CAD system available at the time of the study (as determined by a large PC-CAD system manufacturer's competitive analysis) and two additional concepts. The concept containing lead user features was significantly preferred at even twice the price (p < 0.01). +={Lead users:commercial attractiveness of} + +!_ Innovation in Libraries +={Lead users:library information search system and+11;Library information search system+11} + +Morrison, Roberts, and von Hippel (2000) explored user modifications made by Australian libraries to computerized information search systems called Online Public Access systems ("OPACs"). Libraries might not seem the most likely spot for technological innovators to lurk. However, computer technologies and the Internet have had a major effect on how libraries are run, and many libraries now have in-house programming expertise. Computerized search methods for libraries were initially developed by advanced and technically sophisticated user institutions. Development began in the United States in the 1970s with work by major universities and the Library of Congress, with support provided by grants from the federal government (Tedd 1994). Until roughly 1978, the only such systems extant were those that had been developed by libraries for their own use. In the late 1970s, the first commercial providers of computerized search systems for libraries appeared in the United States, and by 1985 there were at least 48 OPAC vendors in the United States alone (Matthews 1985). In Australia (site of the study sample), OPAC adoption began about 8 years later than in the United States (Tedd 1994). +={Tedd, L.;Roberts, J.+3} + +Morrison, Roberts, and I obtained responses from 102 Australian libraries that were users of OPACs. We found that 26 percent of these had in fact modified their OPAC hardware or software far beyond the user-adjustment capabilities provided by the system manufacturers. The types of innovations that the libraries developed varied widely according to local needs. For example, the library that modified its OPAC to "add book retrieval instructions for staff and patrons" (table 2.2) did so because its collection of books was distributed in a complex way across a number of buildings--- making it difficult for staff and patrons to find books without precise directions. There was little duplication of innovations except in the case of adding Internet search capabilities to OPACs. In that unusual case, nine libraries went ahead and did the programming needed to add this important feature in advance of its being offered by the manufacturers of their systems. + +!_ Table 2.2 +OPAC modifications created by users served a wide variety of functions. + +table{~h c2; 50; 50; + +Improved library management +Improved information-search capabilities + +Add library patron summary statistics +Integrate images in records (2) + +Add library identifiers +Combined menu/command searches + +Add location records for physical audit +Add title sorting and short title listing + +Add book retrieval instructions for staff and patrons +Add fast access key commands + +Add CD ROM System backup +Add multilingual search formats <:br>Add key word searches (2) + +Add book access control based on copyright +Add topic linking and subject access + +Patrons can check their status via OPAC +Add prior search recall feature + +Patrons can reserve books via OPAC (2) +Add search "navigation aids" + +Remote access to OPAC by different systems +Add different hierarchical searches + +Add graduated system access via password +Access to other libraries' catalogs (2) + +Add interfaces to other in-house IT systems +Add or customize web interface (9) + + Word processing and correspondence (2) + Hot links for topics + + Umbrella for local information collection (2) + Extended searches + + Local systems adaptation + Hot links for source material + +}table + +Source of data: Morrison et al. 2000, table 1. Number of users (if more than one) developing functionally similar innovations is shown in parentheses after description of innovation. + +The libraries in the sample were asked to rank themselves on a number of characteristics, including "leading edge status" (LES). (Leading edge status, a construct developed by Morrison, is related to and highly correlated with the lead user construct (in this sample, ρ ,{(LES, CLU)}, = 0.904, /{p}/ = 0.000). ~{ LES contains four types of measures. Three ("benefits recognized early," "high benefits expected," and "direct elicitation of the construct") contain the core components of the lead user construct. The fourth ("applications generation") is a measure of a number of innovation-related activities in which users might engage: they "suggest new applications," they "pioneer those applications," and (because they have needs or problems earlier than their peers) they may be "used as a test site" (Morrison, Midgely, and Roberts 2004). }~ Self-evaluation bias was checked for by asking respondents to name other libraries they regarded as having the characteristics of lead users. Self-evaluations and evaluations by others did not differ significantly. +={Midgely, David;Morrison, Pamela;Roberts, J.} + +Libraries that had modified their OPAC systems were found to have significantly higher LES---that is, to be lead users. They were also found to have significantly higher incentives to make modifications than non-innovators, better in-house technical skills, and fewer "external resources" (for example, they found it difficult to find outside vendors to develop the modifications they wanted for them). Application of these four variables in a logit model classified libraries into innovator and non-innovator categories with an accuracy of 88 percent (table 2.3). + +!_ Table 2.3 +Factors associated with innovating in librararies (logit model). χ^{2}^/,{4}, = 33.85; ρ^{2}^ = 0.40; classification rate = 87.78%. + +table{~h c3; 40; 30; 30; + +~ +Coefficient +Standard error + +Leading-edge status +1.862 +0.601 + +Lack of incentive to modify +--0.845 +0.436 + +Lack of in-house technology skills +--1.069 +0.412 + +Lack of external resources +0.695 +0.456 + +Constant +--2.593 +0.556 + +}table + +Source: Morrison et al. 2000, table 6. + +The commercial value of user-developed innovations in the library OPAC sample was assessed in a relatively informal way. Two development mangers employed by the Australian branches of two large OPAC manufacturers were asked to evaluate the commercial value of each user innovation in the sample. They were asked two questions about each: (1) "How important commercially to your firm is the functionality added to OPACs by this user-developed modification?" (2) "How novel was the information contained in the user innovation to your firm at the time that innovation was developed?" Responses from both managers indicated that about 70 percent (25 out of 39) of the user modifications provided functionality improvements of at least "medium" commercial importance to OPACs---and in fact many of the functions were eventually incorporated in the OPACs the manufacturers sold. However, the managers also felt that their firms generally already knew about the lead users' needs when the users developed their solutions, and that the innovations the users developed provided novel information to their company only in 10--20 percent of the cases. (Even when manufacturers learn about lead users' needs early, they may not think it profitable to develop their own solution for an "emerging" need until years later. I will develop this point in chapter 4.) +={Lead users:commercial attractiveness of;Manufacturers:innovation and|lead users and} + +!_ "Consumer" Innovation in Sports Communities +={Franke, N.+11;Shah, S.+11;Innovation:and sporting equipment+11;Lead users:manufacturers and+11;Sporting equipment:lead users and+11} + +% check manufacturers ref, see previous paragraph + +Franke and Shah (2003) studied user innovation in four communities of sports enthusiasts. The communities, all located in Germany, were focused on four very different sports. +={Manufacturers:innovation and|lead users and} + +One community was devoted to canyoning, a new sport popular in the Alps. Canyoning combines mountain climbing, abseiling (rappelling), and swimming in canyons. Members do things like rappel down the middle of an active waterfall into a canyon below. Canyoning requires significant skill and involves physical risk. It is also a sport in rapid evolution as participants try new challenges and explore the edges of what is both achievable and fun. + +The second community studied was devoted to sailplaning. Sailplaning or gliding, a more mature sport than canyoning, involves flying in a closed, engineless glider carrying one or two people. A powered plane tows the glider to a desired altitude by means of a rope; then the rope is dropped and the engineless glider flies on its own, using thermal updrafts in the atmosphere to gain altitude as possible. The sailplaning community studied by Franke and Shah consisted of students of technical universities in Germany who shared an interest in sailplaning and in building their own sailplanes. + +Boardercross was the focus of the third community. In this sport, six snowboarders compete simultaneously in a downhill race. Racetracks vary, but each is likely to incorporate tunnels, steep curves, water holes, and jumps. The informal community studied consisted of semi-professional athletes from all over the world who met in as many as ten competitions a year in Europe, in North America, and in Japan. + +The fourth community studied was a group of semi-professional cyclists with various significant handicaps, such as cerebral palsy or an amputated limb. Such individuals must often design or make improvements to their equipment to accommodate their particular disabilities. These athletes knew each other well from national and international competitions, training sessions, and seminars sponsored by the Deutscher Sportbund (German National Sports Council). + +A total of 197 respondents (a response rate of 37.8 percent) answered a questionnaire about innovation activities in their communities. Thirty-two percent reported that they had developed or modified equipment they used for their sport. The rate of innovation varied among the sports, the high being 41 percent of the sailplane enthusiasts reporting innovating and the low being 18 percent of the boardercross snowboarders reporting. (The complexity of the equipment used in the various sports probably had something to do with this variation: a sailplane has many more components than a snowboard.) + +The innovations developed varied a great deal. In the sailplane community, users developed innovations ranging from a rocket-assisted emergency ejection system to improvements in cockpit ventilation. Snowboarders invented such things as improved boots and bindings. Canyoners' inventions included very specialized solutions, such as a way to cut loose a trapped rope by using a chemical etchant. With respect to commercial potential, +={Lead users:commercial attractiveness of} + +Franke and Shah found that 23 percent of the user-developed innovations reported were or soon would be produced for sale by a manufacturer. Franke and Shah found that users who innovated were significantly higher on measures of the two lead user characteristics than users who did not innovate (table 2.4). They also found that the innovators spent more time in sporting and community-related activities and felt they had a more central role in the community. + +!_ Table 2.4 +Factors associated with innovation in sports communities. + +table{~h c4; 55; 15; 15; 15; + +~ +Innovators^{a}^ +Non-innovators^{b}^ +Significance of difference^{c}^ + +Time in community +~ +~ +~ + +Years as a community member +4.46 +3.17 +p < 0.01 + +Days per year spent with community members +43.07 +32.73 +p < 0.05 + +Days per year spent participating in the sport +72.48 +68.71 +not significant + +Role in community^{d}^ +~ +~ +~ + +"I am a very active member of the community." +2.85 +3.82 +p < 0.01 + + +"I get together with members of the community for activities that are not related to the sport (movies, dinner parties, etc.)." +3.39 +4.14 +p < 0.05 + +"The community takes my opinion into account when making decisions" +2.89 +3.61 +p < 0.05 + +Lead user characteristic 1: being ahead of the trend^{d}^ +~ +~ +~ + +"I usually find out about new products and solutions earlier than others." +2.71 +4.03 +p < 0.001 + +"I have benefited significantly by the early adoption and use of new products." +3.58 +4.34 +p < 0.01 + +"I have tested prototype versions of new products for manufacturers." +4.94 +5.65 +p < 0.05 + +"In my sport I am regarded as being on the "cutting edge." +4.56 +5.38 +p < 0.01 + + +"I improved and developed new techniques in boardercrossing." +4.29 +5.84 +p < 0.001 + +Lead user characteristic 2: high benefit from innovation^{d}^ +~ +~ +~ + +"I have new needs which are not satisfied by existing products." +3.27 +4.38 +p < 0.001 + + +"I am dissatisfied with the existing equipment." +3.90 +5.13 +p < 0.001 + +}table + +Source: Franke and Shah 2003, table 3.<:br> +a. All values are means; n = 60.<:br> +b. All values are means; n = 129.<:br> +c. Two-tailed t-tests for independent samples.<:br> +d. Rated on seven-point scale, with 1 = very accurate and 7 = not accurate at all. Two-tailed t-tests for independent samples. + +!_ Innovation among Hospital Surgeons +={Surgical equipment+4;Lead users:surgical equipment and+4} + +Lüthje (2003) explored innovations developed by surgeons working at university clinics in Germany. Ten such clinics were chosen randomly, and 262 surgeons responded to Lüthje's questionnaire---a response rate of 32.6 percent. Of the university surgeons responding, 22 percent reported developing or improving some item(s) of medical equipment for use in their own practices. Using a logit model to determine the influence of user characteristics on innovation activity, Lüthje found that innovating surgeons tended to be lead users (p < 0.01). He also found that solutions to problems encountered in their own surgical practices were the primary benefit that the innovating surgeons expected to obtain from the solutions they developed (p < 0.01). In addition, he found that the level of technical knowledge the surgeon held was significantly correlated with innovation (p < 0.05). Also, perhaps as one might expect in the field of medicine, the "contextual barrier" of concerns about legal problems and liability risks was found to have a strongly significant negative correlation with the likelihood of user invention by surgeons (p < 0.01). +={Lüthje, C.+1;Sticky information:toolkits and} + +With respect to the commercial value of the innovations the lead user surgeons had developed, Lüthje reported that 48 percent of the innovations developed by his lead user respondents were or soon would be marketed by manufacturers of medical equipment. + +!_ Discussion + +The studies reviewed in this chapter all found that user innovations in general and commercially attractive ones in particular tended to be developed by lead users. These studies were set in a range of fields, but all were focused on hardware innovations or on information innovations such as new software. It is therefore important to point out that, in many fields, innovation in techniques is at least as important as equipment innovation. For example, many novel surgical operations are performed with standard equipment (such as scalpels), and many novel innovations in snowboarding are based on existing, unmodified equipment. Technique-only innovations are also likely to be the work of lead users, and indeed many of the equipment innovations documented in the studies reviewed here involved innovations in technique as well as innovations in equipment. +={Lead users:commercial attractiveness of+1;Users:innovation process and+1} + +Despite the strength of the findings, many interesting puzzles remain that can be addressed by the further development of lead user theory. For example, empirical studies of innovation by lead users are unlikely to have sampled the world's foremost lead users. Thus, in effect, the studies reviewed here determined lead users to be those highest on lead user characteristics that were within their samples. Perhaps other samples could have been obtained in each of the fields studied containing users that were even more "leading edge" with respect to relevant market trends. If so, why were the samples of moderately leading-edge users showing user innovation if user innovation is concentrated among "extreme" lead users? There are at least three possible explanations. First, most of the studies of user innovation probably included users reasonably close to the global leading edge in their samples. Had the "top" users been included, perhaps the result would have been that still more attractive user innovations would have been found. Second, it may be that the needs of local user communities differ, and so local lead users really may be the world's lead users with respect to their particular needs. Third, even if a sample contains lead users that are not near the global top with respect to lead users' characteristics, local lead users might still have reasons to (re)develop innovations locally. For example, it might be cheaper, faster, more interesting, or more enjoyable to innovate than to search for a similar innovation that a "global top" lead user might already have developed. +={Economic benefit, expectations of by lead users;Innovation process;Lead users:economic benefit, expectations of;Local information;Users:low-cost innovation niches of} + +1~ 3 Why Many Users Want Custom Products +={Custom products:heterogeneity of user needs and+42|users and+42;User need+42;Users:custom products and+42|innovation and+42|needs of} + +The high rates of user innovation documented in chapter 2 suggest that many users may want custom products. Why should this be so? I will argue that it is because many users have needs that differ in detail, and many also have both sufficient willingness to pay and sufficient resources to obtain a custom product that is just right for their individual needs. In this chapter, I first present the case for heterogeneity of user needs. I then review a study that explores users' heterogeneity of need and willingness to pay for product customization. + +!_ Heterogeneity of User Needs + +If many individual users or user firms want something different in a product type, it is said that heterogeneity of user need for that product type is high. If users' needs are highly heterogeneous, only small numbers of users will tend to want exactly the same thing. In such a case it is unlikely that mass-produced products will precisely suit the needs of many users. Mass manufacturers tend to want to build products that will appeal to more users rather than fewer, so as to spread their fixed costs of development and production. If many users want something different, and if they have adequate interest and resources to get exactly the product they need, they will be driven either to develop it for themselves or to pay a custom manufacturer to develop it for them. +={Manufacturers:custom products and|expectations of economic benefit by|innovation and} + +Are users' needs for new products (and services) often highly heterogeneous? A test of reason suggests that they are. An individual's or a firm's need for a many products depends on detailed considerations regarding the user's initial state and resources, on the pathway the user must traverse to get from the initial state to the preferred state, and on detailed considerations regarding their preferred end state as well. These are likely to be different for each individual user and for each user firm at some level of detail. This, in turn, suggests that needs for many new products and services that are precisely right for each user will differ: that needs for those products will be highly heterogeneous. + +Suppose, for example, that you decide you need a new item of household furnishing. Your house is already furnished with hundreds of items, big and small, and the new item must "fit in" properly. In addition, your precise needs for the new item are likely to be affected by your living situation, your resources, and your preferences. For example: "We need a new couch that Uncle Bill will like, that the kids can jump on, that matches the wallpaper I adore, that reflects my love of coral reefs and overall good taste, and that we can afford." Many of these specific constraints are not results of current whim and are not easy to change. Perhaps you can change the wallpaper, but you are less likely to change Uncle Bill, your kids, your established tastes with respect to a living environment, or your resource constraints. + +The net result is that the most desired product characteristics might be specific to each individual or firm. Of course, many will be willing to satisfice---make compromises---on many items because of limits on the money or time they have available to get exactly what they want. Thus, a serious mountain biker may be willing to simply buy almost any couch on sale even if he or she is not fully happy with it. On the other hand, that same biker may be totally unwilling to compromise about getting mountain biking equipment that is precisely right for his or her specific needs. In terms of industrial products, NASA may insist on getting precisely right components for the Space Shuttle if they affect mission safety, but may be willing to satisfice on other items. + +!_ Evidence from Studies of User Innovation + +Two studies of innovation by users provide indirect information on the heterogeneity of user need. They provide descriptions of the functions of the innovations developed by users in their samples. Inspection of these descriptions shows a great deal of variation and few near-duplicates. Different functionality, of course, implies that the developers of the products had different needs. In the 2000 study of user modifications of library IT systems by Morrison, Roberts, and von Hippel, discussed earlier, only 14 of 39 innovations are functionally similar to any other innovations in the sample. If one type of functionality that was repeatedly developed ("web interface") is excluded, the overlap is even lower (see table 2.2). Other responses by study participants add to this impression of high heterogeneity of need among users. Thirty percent of the respondents reported that their library IT system had been highly customized by the manufacturer during installation to meet their specific needs. In addition, 54 percent of study respondents agreed with the statement "We would like to make additional improvements to our IT system functionality that can't be made by simply adjusting the standard, customer-accessible parameters provided by the supplier." +={Morrison, Pamela;Roberts, J.;von Hippel, E.+34;Lead users:library information search system and;Library information search system} + +Similar moderate overlap in the characteristics of user innovations can be seen in innovation descriptions provided in the study of mountain biking by Lüthje, Herstatt, and von Hippel (2002). In that study sample, I estimate that at most 10 of 43 innovations had functionality similar to that of another sample member. This diversity makes sense: mountain biking, which outsiders might assume is a single type of athletic activity, in fact has many subspecialties. +={Herstatt, C.+7;Lüthje, C.+7;Mountain biking+7} + +As can be seen in table 3.1, the specializations of mountain bikers in the our study sample involved very different mountain biking terrains, and important variations in riding conditions and riding specializations. The innovations users developed were appropriate to their own heterogeneous riding activities and so were quite heterogeneous in function. Consider three examples drawn from our study: + +_* I ride on elevated, skinny planks and ladders, do jumps, steep technical downhills, obstacles and big drops. Solution devised: I needed sophisticated cycling armor and protective clothing. So I designed arm and leg armor, chest protection, shorts, pants and a jacket that enable me to try harder things with less fear of injury. + +_* I do back-country touring and needed a way to easily lift and carry a fully loaded mountain bike on the sides of steep hills and mountains and dangle it over cliffs as I climbed. Solution devised: I modified the top tube and the top of my seat post to provide secure attachment points for a carrying strap, then I modified a very plush and durable mountaineering sling to serve as the over-shoulder strap. Because the strap sits up high, I only need to bend my knees a little bit to lift the bike onto my shoulders, yet it is just high enough to keep the front wheel from hitting when I am climbing a steep hill. Eventually, I came up with a quick-release lateral strap to keep the main strap from sliding off my shoulder, but it will easily break away if I fall or land in a fast river and need to ditch my bike. + +_* When riding on ice, my bike has no traction and I slip and fall. Solution devised: I increased the traction of my tires by getting some metal studs used by the auto industry for winter tires. Then I selected some mountain biking tires with large blocks of rubber in the tread pattern, drilled a hole in the center of each block and inserted a stud in each hole. + +!_ Table 3.1 +Activity specializations of innovating mountain bikers. + +table{~h c6; 20; 13; 20; 13; 20; 14; + +Preferred terrain +Number of bikers +Outside conditions +Number of bikers +Focus on particular riding abilities +Number of bikers + +Fast downhill tracks (steep, drops, fast) +44 (39.6%) +Darkness, night riding +45 (40.5%) +Jumps, drops, stunts, obstacles +34 (30.6%) + +Technical single tracks (up and down, rocky, jumps) +68 (61.3%) +Snow, ice, cold +60 (54.1%) +Technical ability/balance +22 (19.8%) + +Smooth single tracks (hilly, rolling, speed, sand, hardpack) +13 (11.7%) +Rain, mud +53 (47.7%) +Fast descents / downhill +34 (30.6%) + +Urban and streets +9 (8.1%) +Heat +15 (13.5%) +Endurance +9 (8.1%) + +No special terrain preferred +5 (4.5%) +High altitude +10 (9.0%) +Climbing +17 (13%) + +~ +~ +No extreme outside conditions +29 (26.1%) +Sprint +3 (2.7%) + +~ +~ +~ +~ +No focus on specific riding ability +36 (32.4%) + +}table + +Source: Lüthje,Herstatt, and vonHippel 2002. This table includes the 111 users in the study sample who had ideas for improvements to mountain biking equipment. (Of these, 61 had actually gone on to build the equipment they envisioned.) Many of these users reported experience in more than one category of activity, so the sum in each column is higher than 111. + +!_ Evidence from Studies of Market Segmentation + +Empirical data on heterogeneity of demand for specific products and services are sparse. Those most interested in studying the matter are generally mass manufacturers of products and services for consumers---and they do not make a practice of prospecting for heterogeneity. Instead, they are interested in finding areas where users' needs are similar enough to represent profitable markets for standard products produced in large volumes. Manufacturers customarily seek such areas via market-segmentation studies that partition markets into a very few segments---perhaps only three, four, or five. Each segment identified consists of customers with relatively similar needs for a particular product (Punj and Stewart 1983; Wind 1978). For example, toothpaste manufacturers may divide their markets into segments such as boys and girls, adults interested in tooth whitening, and so on. +={Punj, G.;Stewart, D.;Wind, Y.;Custom products:market segmentation and+3;Manufacturers:innovation and;Marketing research+1} + +Since the 1970s, nearly all market-segmentation studies have been carried out by means of cluster analysis (Green 1971; Green and Schaffer 1998). After cluster analysis places each participant in the segment of the market most closely matching his needs, a measure of within-segment need variation is determined. This is the proportion of total variation that is within each cluster, and it shows how much users' needs deviate from the averages in "their" respective segments. If within-segment variation is low, users within the segment will have fairly homogeneous needs, and so may be reasonably satisfied with a standard product designed to serve all customers in their segment. If it high, many users are likely to be dissatisfied---some seriously so. +={Green, P.;Schaffer, C.} + +Within-segment variation is seldom reported in published studies, but a survey of market-segmentation studies published in top-tier journals did find 15 studies reporting that statistic. These studies specified 5.5 clusters on average, and had an average remaining within-cluster variance of 46 percent (Franke and Reisinger 2003). Franke and von Hippel (2003b) found similar results in an independent sample. In that study, an average of 3.7 market segments were specified and 54 percent of total variance was left as within-segment variation after the completion of cluster analysis. These data suggest that heterogeneity of need might be very substantial among users in many product categories. ~{ Cluster analysis does not specify the "right" number of clusters---it simply segments a sample into smaller and smaller clusters until the analyst calls a halt. Determining an appropriate number of clusters within a sample can be done in different ways. Of course, it always possible to say that "I only want to deal with three market segments, so I will stop my analysis when my sample has been segmented into three clusters." More commonly, analysts will examine the increase of squared error sums of each step, and generally will view the optimal number of clusters as having been reached when the plot shows a sudden "elbow" (Myers 1996). Since this technique does not incorporate information on remaining within-cluster heterogeneity, it can lead to solutions with a large amount of within-cluster variance. The "cubic clustering criterion" (CCC) partially addresses this concern by measuring the within-cluster homogeneity relative to the between-cluster heterogeneity. It suggests choosing the number of clusters where this value peaks (Milligan and Cooper 1985). However, this method appears to be rarely used: Ketchen and Shook (1996) found it used in only 5 of 45 segmentation studies they examined. }~ +={Franke, N.+20;Reisinger, H.} + +!_ A Study of Heterogeneity and Willingness To Pay + +A need for a novel product not on the market must be accompanied by adequate willingness to pay (and resources) if it is to be associated with the actual development or purchase of a custom product. What is needed to reliably establish the relationship among heterogeneity of demand, willingness to pay, and custom product development or purchase is studies that address all three factors in the same sample. My colleague Nikolaus Franke and I conducted one such study in a population of users of web server software, a product used primarily by industrial firms (Franke and von Hippel 2003b). + +Franke and I looked in detail at users' needs for security features in Apache web server software, and at users' willingness to pay for solutions that precisely fit their needs. Apache web server software is open source software that is explicitly designed to allow modification by anyone having appropriate skills. Anyone may download open source software from the Internet and use it without charge. Users are also explicitly granted the legal right to study the software's source code, to modify the software, and to distribute modified or unmodified versions to others. (See chapter 7 for a full discussion of open source software.) +={Apache web server software+16;Custom products:Apache web server software and+16;Lead users:Apache web server software and+16;Users:and paying for innovations} + +Apache web server software is used on web server computers connected to the Internet. A web server's function is to respond to requests from Internet browsers for particular documents or content. A typical server waits for clients' requests, locates the requested resource, applies the requested method to the resource, and sends the response back to the client. Web server software began by offering relatively simple functionality. Over time, however, Apache and other web server software programs have evolved into the complicated front end for many of the technically demanding applications that now run on the Internet. For example, web server software is now used to handle security and authentication of users, to provide e-commerce shopping carts, and gateways to databases. In the face of strong competition from commercial competitors (including Microsoft and Sun/Netscape), the Apache web server has become the most popular web server software on the Internet, used by 67 percent of the many millions of World Wide Web sites extant in early 2004. It has also received many industry awards for excellence. + +Franke and I created a preliminary list of server security functions from published and web-based sources. The preliminary list was evaluated and corrected by experts in web server security and Apache web server software. We eventually ended up with a list of 45 security functions that some or many users might need. Solutions to some were already incorporated in the standard Apache code downloadable by users, others were available in additional modules, and a few were not yet addressed by any security module generally available to the Apache community. (Security threats can emerge quickly and become matters of great concern before a successful response is developed and offered to the general community. A recent example is site flooding, a form of attack in which vandals attempt to cause a website to fail by flooding it with a very large number of simultaneous requests for a response.) + +Users of the security functions of web server software are the webmasters employed by firms to make sure that their software is up to date and functions properly. A major portion of a webmaster's job is to ensure that the software used is secure from attacks launched by those who wish illicit access or simply want to cause the software to fail in some way. We collected responses to our study questions from two samples of Apache webmasters: webmasters who posted a question or an answer on a question at the Apache Usenet Forum ~{ http://groups-beta.google.com/group/comp.infosystems.www.servers.unix }~ and webmasters who subscribed to a specialized online Apache newsgroup. ~{ http://modules.apache.org/ }~ This stratified sample gave us an adequate representation of webmasters who both did and did not have the technical skills needed to modify Apache security software to better fit their needs: subscribers to apache-modules.org tend to have a higher level of technical skills on average than those posting to the Apache Usenet Forum. Data were obtained by means of an Internet-based questionnaire. + +!_ The Heterogeneity of Users' Needs + +Franke and I found the security module needs of Apache users were very heterogeneous indeed both among those that had the in-house capability to write code to modify Apache and those that did not. The calibrated coefficient of heterogeneity, H,{c},, was 0.98, indicating that there was essentially no tendency of the users to cluster beyond chance. (We defined the "heterogeneity of need" in a group as the degree to which the needs of i individuals can be satisfied with j standard products which optimally meet their needs. This means that heterogeneity of need is high when many standard products are necessary to satisfy the needs of i individuals and low when the needs can be satisfied by a few standard products. The higher the coefficient the more heterogeneous are the needs of users in a sample. If the calibrated heterogeneity coefficient H,{c}, equals 1, there is no systematic tendency of the users to cluster. If it is lower than 1, there is some tendency of the individuals to cluster. A coefficient of 0 means that the needs of all individuals are exactly the same. ~{ To measure heterogeneity, Franke and I analyzed the extent to which j standards, varying from [1; i], meet the needs of the i individuals in our sample. Conceptually, we first locate a product in multi-dimensional need space (dimensions = 45 in the case of our present study) that minimizes the distances to each individual's needs. (This step is analogous to the Ward's method in cluster analysis that also minimizes within cluster variation; see Punj and Stewart 1983.) The "error" is then measured as the sum of squared Euclidean distances. We then repeated these steps to determine the error for two optimally positioned products, three products, and so on up to a number equaling I -- 1. The sum of squared errors for all cases is then a simple coefficient that measures how much the needs of i individuals can be satisfied with j standard products. The "coefficient of heterogeneity" just specified is sensitive both to the (average) /{distance}/ between the needs and for the /{configuration}/ of the needs: when the needs tend to form clusters the heterogeneity coefficient is lower than if they are evenly spread. To make the coefficient comparable across different populations, we calibrate it using a bootstrapping technique (Efron 1979) involving dividing the coefficient by the expected value (this value is generated by averaging the heterogeneity of many random distributions of heterogeneity of the same kind). The average random heterogeneity coefficient is then an appropriate value for calibration purposes: it assumes that there is no systematic relationship between the needs of the individuals or between the need dimensions. }~ ) +={Franke, N.;Punj, G.;Stewart, D.} + +Even this understates the heterogeneity. Responding Apache webmasters went far beyond the 45 security-related functions of web server software that we offered for their evaluation. In our questionnaire we offered an open question asking users to list up to four additional needs they experienced that were not covered by the standard list. Nearly 50 percent used the opportunity to add additional functions. When duplicates were eliminated, we found that 92 distinct additional security-related needs had been noted by one or more webmaster users.~{ Conceptually, it can be possible to generate "one perfect product" for everyone--- in which case heterogeneity of demand is zero---by simply creating all the features wanted by anyone (45 + 92 features in the case of this study), and incorporating them in the "one perfect product." Users could then select the features they want from a menu contained in the one perfect product to tailor it to their own tastes. Doing this is at least conceptually possible in the case of software, but less so in the case of a physical product for two reasons: (1) delivering all possible physical options to everyone who buys the product would be expensive for physical goods (while costing nothing extra in the case of information products); (2) some options are mutually exclusive (an automobile cannot be both red and green at the same time). }~ + +High heterogeneity of need in our sample suggests that there should be a high interest in obtaining modifications to Apache---and indeed, overall satisfaction with the existing version was only moderate. + +!_ Willingness to Pay for Improvements + +It is not enough to want a better-fitting custom product. One must also be willing and able to pay to get what one wants. Those in the Apache sample who did innovate were presumably willing to pay the price to do so. But how much were the users in our sample---the innovators and the non-innovators--- willing to pay /{now}/ for improvements? Estimating a user's willingness to pay (WTP) is known to be a difficult task. Franke and I used the contingent valuation method, in which respondents are directly asked how much they are willing to pay for a product or service (Mitchell and Carson 1989). Results obtained by that method often overestimate WTP significantly. Empirical studies that compare expressed WTP with actual cash payments on average showed actual spending behavior to be somewhat smaller than expressed WTP in the case of private purchases (such as in our case). In contrast, they generally find willingness to pay to be greatly overstated in the case of public goods such as the removal of a road from a wilderness area. ~{ The difference between actual willingness to pay and expressed willingness to pay is much lower for private goods (our case) than for public goods. In the case of private goods, Loomis et al. (1996) found the expressed willingness to pay for art prints to be twice the actual WTP. Willis and Powe (1998) found that among visitors to a castle the expressed WTP was 60 percent lower than the actual WTP. In the case of public goods, Brown et al. (1996), in a study of willingness to pay for removal of a road from a wilderness area, found the expressed WTP to be 4--6 times the actual WTP. Lindsey and Knaap (1999), in a study of WTP for a public urban greenway, found the expressed WTP to be 2-10 times the actual WPT. Neil et al. (1994) found the expressed WTP for conserving an original painting in the desert to be 9 times the actual WTP. Seip and Strand (1992) found that less than 10 percent of those who expressed interest in paying to join an environmental organization actually joined. }~ +={Carson, R.;Mitchell, R.} + +To compensate for the likely overstatement of expressed relative to actual WTP in our study, Franke and I conservatively deflated respondents' indicated willingness to pay by 80 percent. (Although the product in question was intended for private use, webmasters were talking about their willingness to spend company money, not their own money.) We asked each user who had indicated that he was not really satisfied with a function (i.e., whose satisfaction with the respective function was 4 or less on a 7-point scale, where 1 = not satisfied at all, and 7 = very satisfied) to estimate how much he would be willing to pay to get a very satisfactory solution regarding this function. After deflation, our sample of 137 webmasters said they were willing to pay $700,000 in aggregate to modify web server software to a point that fully satisfied them with respect to their security function needs. This amounts to an average of $5,232 total willingness to pay per respondent. This is a striking number because the price of commercial web server software similar to Apache's for one server was about $1,100 at the time of our study (source: www.sun.com, November 2001). If we assume that each webmaster was in charge of ten servers on average, this means that each webmaster was willing to pay half the price of a total server software package to get his heterogeneous needs for security features better satisfied. + +!_ Increased Satisfaction from Customization of Apache + +Recall that it takes some technical skill to modify Apache web server software by writing new code. In table 3.2, Franke and I examined only the technically skilled users in our sample who claimed the capability of making modifications to Apache web server software. For these technically skilled users, we found significantly higher satisfaction levels among those that actually did customize their software---but even the users that made modifications were not fully satisfied. + +!_ Table 3.2 +Skilled users who customized their software were more satisfied than those who did not customize. + +table{~h c4; 55; 15; 15; 15; + +~ +Users who customized (n = 18) +Users who did not customize (n = 44) +Difference (one-tailed t-test) + +Satisfaction with basic web server functionality +5.5 +4.3 +0.100 + +Satisfaction with authentication of client +3.0 +1.0 +0.001 + +Satisfaction with e-commerce-related functions +1.3 +0.0 +0.023 + +Satisfaction with within-site user access control +8.5 +6.9 +0.170 + +Satisfaction with other security functions +3.9 +3.9 +0.699 + +Overall satisfaction +4.3 +2.6 +0.010 + +}table + +Source: Franke and von Hippel 2003, table 8. In this table, 45 individual functions are grouped into five general categories. The satisfaction index ranges from -21 to +21. + +One might wonder why users with the ability to modify Apache closer to their liking were not totally satisfied. The answer can be found in respondents' judgments regarding how much effort it would require to modify Apache still more to their liking. We asked all respondents who indicated dissatisfaction of level 4 or lower with a specific function of Apache how much working time it would cost them to improve the function to the point where they would judge it to be very satisfactory (to be at a satisfaction level of 7). For the whole sample and all dissatisfactions, we obtained a working time of 8,938 person-days necessary to get a very satisfactory solution. This equals $78 of incremental benefit per incremental programmer working day ($716,758 divided by 8,938 days). This is clearly below the regular wages a skilled programmer gets. Franke and I concluded from this that skilled users do not improve their respective Apache versions to the point where they are perfectly satisfied because the costs of doing so would exceed the benefits. + +!_ Discussion + +Heterogeneity of user need is likely to be high for many types of products. Data are still scanty, but high heterogeneity of need is a very straightforward explanation for why there is so much customization by users: many users have "custom" needs for products and services. + +Those interested can easily enhance their intuitions about heterogenity of user need and related innovation by users. User innovation appears to be common enough so that one can find examples for oneself in a reasonably small, casual sample. Readers therefore may find it possible (and enjoyable) to do their own informal tests of the matter. My own version of such a test is to ask the students in one of my MIT classes (typically about 50 students) to think about a particular product that many use, such as a backpack. I first ask them how satisfied they are with their backpack. Initially, most will say "It's OK." But after some discussion and thinking, a few complaints will slowly begin to surface (slowly, I think, because we all take some dissatisfaction with our products as the unremarkable norm). "It doesn't fit comfortably" in this or that particular way. "When my lunch bag or thermos leaks the books and papers I am carrying get wet---there should be a water proof partition." "I carry large drawings to school rolled up in my backpack with the ends sticking out. They are ruined if it rains and I have not taken the precaution of wrapping them in plastic." Next, I ask whether any students have modified their backpacks to better meet their needs. Interestingly enough, one or two typically have. Since backpacks are not products of very high professional or hobby interest to most users, the presence of even some user innovation to adapt to individual users' unmet needs in such small, casual samples is an interesting intuition builder with respect to the findings discussed in this chapter. + +1~ 4 Users' Innovate-or-Buy Decisions +={Users:innovation and+4|innovate-or-buy decisions by+74} + +Why does a user wanting a custom product sometimes innovate for itself rather than buying from a manufacturer of custom products? There is, after all, a choice---at least it would seem so. However, if a user with the resources and willingness to pay does decide to buy, it may be surprised to discover that it is not so easy to find a manufacturer willing to make exactly what an individual user wants. Of course, we all know that mass manufacturers with businesses built around providing standard products in large numbers will be reluctant to accommodate special requests. Consumers know this too, and few will be so foolish as to contact a major soup producer like Campbell's with a request for a special, "just-right" can of soup. But what about manufacturers that specialize in custom products? Isn't it their business to respond to special requests? To understand which way the innovate-or-buy choice will go, one must consider both transaction costs and information asymmetries specific to users and manufacturers. I will talk mainly about transaction costs in this chapter and mainly about information asymmetries in chapter 5. +={Custom products:users and+3;Innovation process+3;Manufacturers:innovation and+3;Transaction costs+3;Users:innovation process and+3|and paying for innovations} + +I begin this chapter by discussing four specific and significant transaction costs that affect users' innovate-or-buy decisions. Next I review a case study that illustrates these. Then, I use a simple quantitative model to further explore when user firms will find it more cost-effective to develop a solution---a new product or service---for themselves rather than hiring a manufacturer to solve the problem for them. Finally, I point out that /{individual}/ users can sometimes be more inclined to innovate than one might expect because they sometimes value the /{process}/ of innovating as well as the novel product or service that is created. + +!_ Users' vs. Manufacturers' Views of Innovation Opportunities +={Agency costs+15;Manufacturers:agency costs and+15;Transaction costs:See also Agency costs;Users:agency costs and+15|transaction costs and+15} + +Three specific contributors to transaction costs---in addition to the "usual suspects," such as opportunism---often have important effects on users' decisions whether to buy a custom product or to develop it for themselves. These are (1) differences between users' and manufacturers' views regarding what constitutes a desirable solution, (2) differences in innovation quality signaling requirements between user and manufacturer innovators, and (3) differences in legal requirements placed on user and manufacturer innovators. The first two of these factors involve considerations of agency costs. When a user hires a manufacturer to develop a custom product, the user is a principal that has hired the custom manufacturer as to act as its agent. When the interests of the principal and the agent are not the same, agency costs will result. Recall from chapter 1 that agency costs are (1) costs incurred to monitor the agent to ensure that it follows the interests of the principal, (2) the cost incurred by the agent to commit itself not to act against the principal's interest (the "bonding cost"), and (3) costs associated with an outcome that does not fully serve the interests of the principal (Jensen and Meckling 1976). In the specific instance of product and service development, agency considerations enter because a user's and a manufacturer's interests with respect to the development of a custom product often differ significantly. +={Jensen, M.;Meckling, W.} + +!_ Preferences Regarding Solutions + +Individual products and services are components of larger user solutions. A user therefore wants a product that will make the best overall tradeoff between solution quality and price. Sometimes the best overall tradeoff will result in a willingness to pay a surprisingly large amount to get a solution component precisely right. For example, an individual user may specify tennis racket functionality that will fit her specific technique and relative strengths and will be willing to pay a great deal for exactly that racket. Deviations in racket functionality would require compensating modifications in her carefully practiced and deeply ingrained hitting technique---a much more costly overall solution from the user's point of view. In contrast, a user will be much less concerned with precisely /{how}/ the desired functionality is attained. For example, tennis players will typically be unconcerned about whether a tennis racket is made from metal, carbon fiber, plastic or wood---or, for that matter, from mud---if it performs precisely as desired. And, indeed, users have quickly shifted to new types of rackets over the years as new materials promise a better fit to their particular functional requirements. + +Of course, the same thing is true in the case of products for industrial users. For example, a firm with a need for a process machine may be willing to pay a great deal for one that is precisely appropriate to the characteristics of the input materials being processed, and to the skills of employees who will operate the machine. Deviations in either matter would require compensating modifications in material supply and employee training---likely to be a much more costly overall solution from the user's point of view. In contrast, the user firm will be much less concerned with precisely how the desired functionality is achieved by the process machine, and will care only that it performs precisely as specified. + +Manufacturers faced with custom development requests from users make similar calculations, but theirs revolve around attempting to conserve the applicability of a low-cost (to them) solution. Manufacturers tend to specialize in and gain competitive advantage from their capabilities in one or a few specific solution types. They then seek to find as many profitable applications for those solutions types as possible. For example, a specialist in fabricating custom products from carbon fiber might find it profitable to make any kind of product---from airplane wings to tennis rackets---as long as they are made from carbon fiber. In contrast, that same manufacturer would have no competitive advantage in---and so no profit from making--- any of these same products from metal or wood. + +Specializations in solution types can be very narrow indeed. For example, thousands of manufacturers specialize in adhesive-based fastening solutions, while other thousands specialize in mechanical fastening solutions involving such things as metal screws and nails. Importantly, companies that produce products and solution types that have close functional equivalence from the user's point of view can look very different from the point of view of a solution supplier. For example, a manufacturer of standard or custom adhesives needs chemists on staff with an expertise in chemical formulation. It also needs chemistry labs and production equipment designed to mix specialized batches of chemicals on a small scale, and it needs the equipment, expertise and regulatory approvals to package that kind of product in a way that is convenient to the customer and also in line with regulatory safeguards. In contrast, manufacturers specializing in standard or custom metal fastening solutions need none of these things. What they need instead are mechanical design engineers, a machine shop to build product prototypes and production tooling, specialized metal-forming production equipment such as screw machines, and so on. + +Users, having an investment only in a need specification and not in a solution type, want the best functional solution to their problem, independent of solution type used. Manufacturers, in contrast, want to supply custom solutions to users that utilize their existing expertise and production capabilities. Thus, in the case of the two fastening technology alternatives just described, users will prefer whatever solution approach works best. In contrast, adhesives manufacturers will find it tremendously more attractive to create a solution involving adhesive-based fastening, and manufacturers specializing in mechanical fastening will similarly strongly prefer to offer to develop solutions involving mechanical fastening. + +The difference between users' incentives to get the best functional solution to their need and specialist manufacturers' incentives to embed a specific solution type in the product to be developed are a major source of agency costs in custom product development, because there is typically an information asymmetry between user and manufacturer with respect to what will be the best solution. Manufacturers tend to know more than users about this and to have a strong incentive to provide biased information to users in order to convince them that the solution type in which they specialize is the best one to use. Such biases will be difficult for users to detect because, again, they are less expert than the suppliers in the various solution technologies that are candidates. +={Information asymmetries;Users:information asymmetries of} + +Theoretically, this agency cost would disappear if it were possible to fully specify a contract (Aghion and Tirole 1994; Bessen 2004). But in product development, contracting can be problematic. Information regarding characteristics of solutions and needs is inescapably incomplete at the time of contracting---users cannot fully specify what they want in advance of trying out prototype solutions, and manufacturers are not fully sure how planned solution approaches will work out before investing in customer-specific development. +={Aghion, P.;Bessen, J.;Contracting;Tirole, J.} + +!_ Users' Expectations + +When users buy a product from manufacturers, they tend to expect a package of other services to come along with the product they receive. However, when users develop a product for themselves, some of these are not demanded or can be supplied in a less formal, less expensive way by users for themselves. This set of implicit expectations can raise the cost to a user of a custom solution bought from a manufacturer relative to a home-developed solution. +={Manufacturers:innovation and+11;Users:innovation and+11} + +Users typically expect a solution they have purchased to work correctly and reliably "right out of the box." In effect, a sharp line is drawn between product development at the manufacturer's site and routine, trouble-free usage at the purchaser's site. When the user builds a product for itself, however, both the development and the use functions are in the same organization and may explicitly be overlapped. Repeated tests and repeated repairs and improvements during early use are then more likely to be understood and tolerated as an acceptable part of the development process. + +A related difference in expectations has to do with field support for a product that has been purchased rather than developed in house. In the case of a purchased custom product, users expect that manufacturers will provide replacement parts and service if needed. Responding to this expectation is costly for a custom manufacturer. It must keep a record of what it has built for each particular user, and of any special parts incorporated in that user's products so that they can be built or purchased again if needed. In contrast, if a user has developed a product for itself, it has people on site who know details of its design. These employees will be capable of rebuilding or repairing or redesigning the product /{ad hoc}/ if and as the need arises. (Of course, if these knowledgeable employees leave the user firm while the product they designed is still in use, such informality can prove costly.) + +Manufacturers also must invest in indirect quality signals that may not have an effect on actual quality, but instead are designed to assure both the specific user being served and the market in general that the product being supplied is of high quality. These represent another element of agency costs that user-innovators do not incur. When users develop an innovation for themselves, they end up intimately knowing the actual quality of the solution they have developed, and knowing why and how it is appropriate to their task. As an example, an engineer building a million-dollar process machine for in-house use might feel it perfectly acceptable to install a precisely right and very cheap computer controller made and prominently labeled by Lego, a manufacturer of children's toys. (Lego provides computer controllers for some of its children's building kit products.) But if that same engineer saw a Lego controller in a million-dollar process machine his firm was purchasing from a specialist high-end manufacturer, he might not know enough about the design details to know that the Lego controller was precisely right for the application. In that case, the engineer and his managers might well regard the seemingly inappropriate brand name as an indirect signal of bad quality. + +Manufacturers are often so concerned about a reputation for quality that they refuse to take shortcuts that a customer specifically requests and that might make sense for a particular customer, lest others get wind of what was done and take it as a negative signal about the general quality of the firm's products. For example, you may say to a maker of luxury custom cars: "I want to have a custom car of your brand in my driveway---my friends will admire it. But I only plan to drive it to the grocery store once in a while, so I only want a cheap little engine. A luxury exterior combined with cheap parts is the best solution for me in this application---just slap something together and keep the price low." The maker is likely to respond: "We understand your need, but we cannot be associated with any product of low quality. Someone else may look under the hood some day, and that would damage our reputation as a maker of fine cars. You must look elsewhere, or decide you are willing to pay the price to keep one of our fine machines idle on your driveway." + +!_ Differing Legal and Regulatory Requirements + +Users that innovate do not generally face legal risk if the product they develop fails and causes costs to themselves but not to others. In contrast, manufacturers that develop and sell new products are regarded under US law as also providing an implied warranty of "fitness for the intended use." If a product does not meet this criterion, and if a different, written warranty is not in place, manufacturers can be found liable for negligence with respect to providing a defective design and failure to warn buyers (Barnes and Ulin 1984). This simple difference can cause a large difference in exposure to liability by innovators and so can drive up the costs of manufacturer-provided solutions relative to user-provided ones. +={Barnes, B.;Ulin, D.;Transaction costs+51;Users:transaction costs and+23} + +For example, a user firm that builds a novel process controller to improve its plant operations must pay its own actual costs if the self-built controller fails and ruins expensive materials being processed. On the other hand, if a controller manufacturer designed the novel controller product and sold it to customers, and a failure then occurred and could be traced back to a fault in the design, the controller manufacturer is potentially liable for actual user costs and punitive damages. It may also incur significant reputational losses if the unhappy user broadcasts its complaints. The logical response of a controller manufacturer to this higher risk is to charge more and/or to be much more careful with respect to running exhaustive, expensive, and lengthy tests before releasing a new product. The resulting increase in cost and delay for obtaining a manufacturer-developed product can tend to tip users toward building their own, in-house solutions. +={Custom products:manufacturers and+2;Economic benefit, expectations of by lead users:by manufacturers+4|by users+7;Manufacturers:expectations of economic benefit by+4} + +!_ Net Result + +A net result of the foregoing considerations is that manufacturers often find that developing a custom product for only one or a few users will be unprofitable. In such cases, the transaction costs involved can make it cheaper for users with appropriate capabilities to develop the product for themselves. In larger markets, in contrast, fixed transaction costs will be spread over many customers, and the economies of scale obtainable by producing for the whole market may be substantial. In that case, it will likely be cheaper for users to buy than to innovate. As a result, manufacturers, when contacted by a user with a very specific request, will be keenly interested in how many others are likely to want this solution or elements of it. If the answer is "few," a custom manufacturer will be unlikely to accept the project. + +Of course, manufacturers have an incentive to /{make}/ markets attractive from their point of view. This can be done by deviating from precisely serving the needs of a specific custom client in order to create a solution that will be "good enough" for that client but at the same time of more interest to others. Manufacturers may do this openly by arranging meetings among custom buyers with similar needs, and then urging the group to come up with a common solution that all will find acceptable. "After all," as the representative will say, "it is clear that we cannot make a special product to suit each user, so all of you must be prepared to make really difficult compromises!" More covertly, manufacturers may simply ignore some of the specific requests of the specific user client and make something that they expect to be a more general solution instead. + +The contrasting incentives of users and manufacturers with respect to generality of need being served---and also with respect to the solution choice issue discussed earlier---can result in a very frustrating and cloudy interaction in which each party hides its best information and attempts to manipulate others to its own advantage. With respect to generality of need, sophisticated users understand custom suppliers' preference for a larger market and attempt to argue convincingly that "everyone will want precisely what I am asking you for." Manufacturers, in turn, know users have this incentive and so will generally prefer to develop custom products for which they themselves have a reasonable understanding of demand. Users are also aware of manufacturers' strong preference for only producing products that embody their existing solution expertise. To guard against the possibility that this incentive will produce biased advice, they may attempt to shop around among a number of suppliers offering different solution types and/or develop internal expertise on solution possibilities and/or attempt to write better contracts. All these attempts to induce and guard against bias involve agency costs. +={Custom products:manufacturers and} + +!_ An Illustrative Case + +A case study by Sarah Slaughter (1993) illustrates the impact of some of the transaction costs discussed above related to users' innovate-or-buy decisions. Slaughter studied patterns of innovation in stressed-skin panels, which are used in some housing construction. The aspects of the panels studied were related to installation, and so the users of these features were home builders rather than home owners. When Slaughter contrasted users' costs of innovating versus buying, she found that it was always much cheaper for the builder to develop a solution for itself at a construction site than to ask a panel manufacturer to do so. +={Slaughter, S.+16;Stressed-skin panels+16} + +A stressed-skin panel can be visualized as a large 4-by-8-foot sandwich consisting of two panels made of plywood with a layer of plastic foam glued in between. The foam, about 4 inches thick, strongly bonds the two panels together and also acts as a layer of thermal insulation. In 1989, manufacturing of stressed-skin panels was a relatively concentrated industry; the four largest manufacturers collectively having a 77 percent share of the market. The user industry was much less concentrated: the four largest constructors of panelized housing together had only 1 percent of the market for such housing in 1989. + +In housing construction, stressed-skin panels are generally attached to strong timber frames to form the outer shell of a house and to resist shear loads (such as the force of the wind). To use the panels in this way, a number of subsidiary inventions are required. For example, one must find a practical, long-lasting way to attach panels to each other and to the floors, the roof, and the frame. Also, one has to find a new way to run pipes and wires from place to place because there are no empty spaces in the walls to put them---panel interiors are filled with foam. + +Stressed-skin panels were introduced into housing construction after World War II. From then till 1989, the time of Slaughter's study, 34 innovations were made in 12 functionally important areas to create a complete building system for this type of construction. Slaughter studied the history of each of these innovations and found that 82 percent had been developed by users of the stressed-skin panels---residential builders---and only 18 percent by manufacturers of stressed-skin panels. Sometimes more than one user developed and implemented different approaches to the same functional problem (table 4.1). Builders freely revealed their innovations rather than protecting them for proprietary advantage. They were passed from builder to builder by word of mouth, published in trade magazines, and diffused widely. All were replicated at building sites for years before any commercial panel manufacturer developed and sold a solution to accomplish the same function. + +Histories of the user-developed improvements to stressed-skin panel construction showed that the user-innovator construction firms did not engage in planned R&D projects. Instead, each innovation was an immediate response to a problem encountered in the course of a construction project. Once a problem was encountered, the innovating builder typically developed and fabricated a solution at great speed, using skills, materials, and equipment on hand at the construction site. Builders reported that the average time from discovery of the problem to installation of the completed solution on the site was only half a day. The total cost of each innovation, including time, equipment, and materials, averaged $153. + +!_ Example: Installing Wiring in a Stressed-Skin Panel + +A builder was faced with the immediate problem of how to route wires through the foam interior of panels to wall switches located in the middle of the panels. He did not want cut grooves or channels through the surfaces of the panels to these locations---that would dangerously reduce the panels' structural strength. His inventive solution was to mount an electrically heated wire on the tip of a long pole and simply push the heated tip through the center insulation layer of the panel. As he pushed, the electrically heated tip quickly melted a channel through the foam plastic insulation from the edge of the panel to the desired spot. Wires were then pulled through this channel. + +!_ Table 4.1 +Users would have found it much more costly to get custom solutions from manufacturers. The costs of user-developed innovations in stressed-skin panels were very low. + +table{~h c5; 40; 17; 17; 6; 20; + +Function +Average user development time (days) +Average user development cost +N +Minimimum cost of waiting for manufacturer to deliver + +Framing of openings in panels +0.1 +$20 +1 +$1,400 + +Structural connection between panels +0.1 +30 +2 +$1,400 + +Ventilation of panels on roof +0.1 +32 +2 +$28,000 + +Insulated connection between panels +0.1 +41 +3 +$2,800 + +Corner connection between panels +0.2 +60 +1 +$2,800 + +Installation of HVAC in panels +0.2 +60 +2 +$2,800 + +Installation of wiring in panels +0.2 +79 +7 +$2,800 + +Connection of panels to roof +0.2 +80 +1 +$2,800 + +Add insect repellency to panels +0.4 +123 +3 +$70,000 + +Connect panels to foundation +0.5 +160 +1 +$1,400 + +Connect panels to frames +1.2 +377 +3 +$2,800 + +Development of curved panels +5.0 +1,500 +1 +$28,000 + +Average for all innovations +0.5 +$153 +~ +$12,367 + +}table + +N represents number of innovations developed by /{users}/ to carry out each listed function. Source: Slaughter 1993, tables 4 and 5. Costs and times shown are averaged for all user-developed innovations in each functional category. (The six /{manufacturer}/-developed innovations in Slaughter's sample are not included in this table.) + +The builder-innovator reported that the total time to develop the innovation was only an hour, and that the total cost for time and materials equaled $40. How could it cost so little and take so little time? The builder explained that using hot wires to slice sheets of plastic foam insulation into pieces of a required length is a technique known to builders. His idea as to how to modify the slicing technique to melt channels instead came to him quickly. To test the idea, he immediately sent a worker to an electrical supply house to get some nichrome wire (a type of high-resistance wire often used as an electrical heating element), attached the wire to a tip of a pole, and tried the solution on a panel at the building site---and it worked! + +This solution was described in detail in an article in a builder's magazine and was widely imitated. A panel manufacturer's eventual response (after the user solution had spread for a number of years) was to manufacture a panel with a channel for wires pre-molded into the plastic foam interior of the panel. This solution is only sometimes satisfactory. Builders often do not want to locate switch boxes at the height of the premolded channel. Also, sometimes construction workers will install some panels upside down in error, and the preformed channels will then not be continuous between one panel and the next. In such cases, the original, user-developed solution is again resorted to. + +!_ Example: Creating a Curved Panel +={Manufacturers:transaction costs and+8} + +A builder was constructing a custom house with large, curved windows. Curved stressed-skin panels were needed to fill in the space above and below these windows, but panel manufacturers only sold flat panels at that time. The builder facing the problem could not simply buy standard flat panels and bend them into curved ones at the construction site---completed panels are rigid by design. So he bought plywood and plastic foam at a local building supply house and slowly bent each panel component separately over a curved frame quickly built at the construction site. He then bonded all three elements together with glue to create strong curved panels that would maintain their shape over time. + +To determine whether users' decisions to innovate rather than buy made economic sense for them, Slaughter calculated, in a very conservative way, what it would have cost users to buy a manufacturer-developed solution embodied in a manufactured panel rather than build a solution for themselves. Her estimates included only the cost of the delay a user-builder would incur while waiting for delivery of a panel incorporating a manufacturer's solution. Delay in obtaining a solution to a problem encountered at a construction site is costly for a builder, because the schedule of deliveries, subcontractors, and other activities must then be altered. For example, if installation of a panel is delayed, one must also reschedule the arrival of the subcontractor hired to run wires through it, the contractor hired to paint it, and so on. Slaughter estimated the cost of delay to a builder at $280 per crew per day of delay (Means 1989). To compute delay times, she assumed that a manufacturer would always be willing to supply the special item a user requested. She also assumed that no time elapsed while the manufacturer learned about the need, contracted to do the job, designed a solution, and obtained needed regulatory approvals. She then asked panel manufacturers to estimate how long it would take them to simply construct a panel with the solution needed and deliver it to the construction site. Delay times computed in this manner ranged from 5 days for some innovations to 250 days for the longest-term one and averaged 44 days. +={Means, R.;Economic benefit, expectations of by lead users:by manufacturers+2|by users+2;Manufacturers:expectations of economic benefit by+2|innovation and+5} + +The conservative nature of this calculation is very clear. For example, Slaughter points out that the regulatory requirements for building components, not included, are in fact much more stringent for manufacturers than for user-builders in the field of residential construction. Manufacturers delivering products can be required to provide test data demonstrating compliance with local building codes for each locality served. Testing new products for compliance in a locality can take from a month to several years, and explicit code approval often takes several additional years. In contrast, a builder that innovates need only convince the local building inspector that what he has done meets code or performance requirements--- often a much easier task (Ehrenkrantz Group 1979; Duke 1988). +={Duke, R.;Ehrenkrantz Group} + +Despite her very conservative method of calculation, Slaughter found the costs to users of obtaining a builder solution to be at least 100 times the actual costs of developing a solution for themselves (table 4.1). Clearly, users' decisions to innovate rather than buy made economic sense in this case. + +!_ Modeling Users' Innovate-or-Buy Decisions + +In this section I summarize the core of the argument discussed in this chapter via a simple quantitative model developed with Carliss Baldwin. Our goal is to offer additional clarity by trading off the richness of the qualitative argument for simplicity. +={Baldwin, C.+24} + +Whether a user firm should innovate or buy is a variant of a well-known problem: where one should place an activity in a supply chain. In any real-world case many complexities enter. In the model that follows, Baldwin and I ignore most of these and consider a simple base case focused on the impact of transaction costs on users' innovate-or-buy considerations. The model deals with manufacturing firms and user firms rather than individual users. We assume that user firms and manufacturer firms both will hire designers from the same homogeneous pool if they elect to solve a user problem. We also assume that both user firms and manufacturer firms will incur the same costs to solve a specific user problem. For example, they will have the same costs to monitor the performance of the designer employees they hire. In this way we simplify our innovate-or-buy problem to one of transaction costs only. + +If there are no transaction costs (for example, no costs to write and enforce a contract), then by Coase's theorem a user will be indifferent between making or buying a solution to its problem. But in the real world there are transaction costs, and so a user will generally prefer to either make or buy. Which, from the point of view of minimizing overall costs of obtaining a problem solution, is the better choice under any given circumstances? +={Coase, R.} + +Let V,{ij}, be the value of a solution to problem j for user i. Let N,{j}, be the number of users having problem j. Let Wh,{j}, be the cost of solving problem j, where W = hourly wage and h,{j}, = hours required to solve it. Let P,{j}, be the price charged by a manufacturer for a solution to problem j. Let T be fixed or "setup" transaction costs, such as writing a general contract for buyers of a solution to problem j. Let t be variable or "frictional" transaction costs, such as tailoring the general contract to a specific customer. + +To explore this problem we make two assumptions. First, we assume that a user firm knows its own problems and the value of a solution to itself, V,{ij},. Second, we assume that a manufacturer knows the number of users having each problem, N,{j},, and the value of solutions for each problem for all users, V,{ij},. + +These assumptions are in line with real-world incentives of users and manufacturers, although information stickiness generally prevents firms from getting full information. That is, users have a high incentive to know their own problems and the value to them of a solution. Manufacturers, in turn, have an incentive to invest in understanding the nature of problems faced by users in the target market, the number of users affected, and the value that the users would attach to getting a solution in order to determine the potential profitability of markets from their point of view. +={Sticky information:innovation and} + +We first consider the user's payoff for solving a problem for itself. A user has no transaction costs in dealing with itself, so a user's payoff for solving problem j will be V,{ij}, - Wh,{j},. Therefore, a user will buy a solution from an upstream manufacturer rather than develop one for itself if and only if P ≤ Wh,{j},. + +Next we consider payoffs to a manufacturer for solving problem j. In this case, transaction costs such as those discussed in earlier sections will be encountered. With respect to transaction costs assume first that t = 0 but T > 0. Then, the manufacturer's payoff for solving problem j will be V,{ij}, - Wh,{j},, which needs to be positive in order for the manufacturer to find innovation attractive: + +N,{j}, P,{j}, - Wh,{j}, - T > 0. + +But, as we saw, P,{j}, ≤ Wh,{j}, if the user is to buy, so we may substitute Wh,{j}, for P,{j}, in our inequality. Thus we obtain the following inequality as a condition for the user to buy: + +N,{j}, (Wh,{j},) - Wh,{j}, - T > 0, + +or + +N,{j}, > (T / Wh,{j},) + 1. + +In other words, Baldwin and I find that the absolute lower bound on N is greater than 1. This means that a single user will always prefer to solve a unique problem j for itself (except in Coase's world, where T = 0, and the user will be indifferent). If every problem is unique to a single user, users will never choose to call on upstream manufacturers for solutions. +={Coase, R.} + +Now assume that T = 0 but t > 0. Then the condition for the user to buy rather than to innovate for itself becomes + +N,{j}, (Wh,{j}, - t) - Wh,{j}, > 0, + +or equivalently (provided Wh,{j}, > t) + +N,{j}, > Wh,{j}, / (Wh,{j}, - t) > 1. + +Again, users will not call on upstream manufacturers to solve problems unique to one user. + +The findings from the simplified model, then, are the following: Problems unique to one user will always be solved efficiently by users hiring designers to work for them in house. In contrast, problems affecting more than a moderate number of users, n, which is a function of the transaction costs, will be efficiently solved by the manufacturer hiring designers to develop the needed new product or service and then selling that solution to all users affected by the problem. However, given sufficient levels of T and/or of t, problems affecting more than one but fewer than n users will not be solved by a manufacturer, and so there will be a market failure: Assuming an institutional framework consisting only of independent users and manufacturers, multiple users will have to solve the same problem independently. + +As illustration, suppose that t = 0.25Wh,{j}, and T = 10Wh,{j},. Then, combining the two expressions and solving for n yields + +n = (11Wh,{j}, /0.75Wh,{j},) = 14.66. + +The condition for the user to buy the innovation rather than innovate itself becomes N,{j}, ≥ 15. For a number of users less than 15 but greater than 1, there will be a wasteful multiplication of user effort: several users will invest in developing the same innovation independently. + +In a world that consists entirely of manufacturers and of users that do not share the innovations they develop, the type of wasteful duplicative innovation investment by users just described probably will occur often. As was discussed earlier in this chapter, and as was illustrated by Slaughter's study, substantial transaction costs might well be the norm. In addition, low numbers of users having the same need---situations where N,{j}, is low---might also be the norm in the case of functionally novel innovations. Functionally novel innovations, as I will show later, tend to be developed by lead users, and lead users are by definition at the leading (low-N,{j},) edge of markets. +={Slaughter, S.;Stressed-skin panels} + +When the type of market failure discussed above does occur, users will have an incentive to search for institutional forms with a lower T and/or a lower t than is associated with assignment of the problem to an upstream manufacturer. One such institutional form involves interdependent innovation development among multiple users (for example, the institutional form used successfully in open source software projects that I will discuss in chapter 7). Baldwin and Clark (2003) show how this form can work to solve the problem of wasteful user innovation investments that were identified in our model. They show that, given modularity in the software's architecture, it will pay for users participating in open source software projects to generate and freely reveal some components of the needed innovation, benefiting from the fact that other users are likely to develop and reveal other components of that innovation. At the limit, the wasteful duplication of users' innovative efforts noted above will be eliminated; each innovation component will have been developed by only one user, but will be shared by many. +={Clark, K.} + +!_ Benefiting from the Innovation Process +={Innovation process+4;Users:innovation process and+4} + +Some individual users (not user firms) may decide to innovate for themselves rather than buy even if a traditional accounting evaluation would show that they had made a major investment in time and materials for an apparently minor reward in product functionality. The reason is that individual users may gain major rewards from the process of innovating, in addition to rewards from the product being developed. Make-or-buy evaluations typically include factors such as the time and materials that must be invested to develop a solution. These costs are then compared with the likely benefits produced by the project's "output"---the new product or service created---to determine whether the project is worth doing. This was the type of comparison made by Slaughter, for example, in assessing whether it would be better for the users to make or to buy the stressed-skin panel innovations in her sample. However, in the case of individual user-innovators, this type of assessment can provide too narrow a perspective on what actually constitutes valuable project output. Specifically, there is evidence that individuals sometimes greatly prize benefits derived from their participation in the process of innovation. The process, they say, can produce learning and enjoyment that is of high value to them. +={Slaughter, S.;Stressed-skin panels} + +In the introductory chapter, I pointed out that some recreational activities, such as solving crossword puzzles, are clearly engaged in for process rewards only: very few individuals value the end "product" of a completed puzzle. But process rewards have also been found to be important for innovators that are producing outputs that they and others do value (Hertel, Niedner, and Herrmann 2003; Lakhani and Wolf 2005). Lakhani and Wolf studied a sample of individuals (n = 684, response rate = 34 percent) who had written new software code and contributed it to an open source project. They asked the programmers to list their three most important reasons for doing this. Fifty-eight percent of respondents said that an important motivation for writing their code was that they had a work need (33 percent), or a non-work need (30 percent) or both (5 percent) for the code itself. That is, they valued the project's "output" as this is traditionally viewed. However, 45 percent said that one of their top three reasons for writing code was intellectual stimulation, and 41 percent said one of their top three reasons was to improve their own programming skills (Lakhani and Wolf 2005, table 6). Elaborating on these responses, 61 percent of respondents said that their participation in the open source project was their most creative experience or was as creative as their most creative experience. Also, more than 60 percent said that "if there were one more hour in the day" they would always or often dedicate it to programming. +={Herrmann, S.;Hertel, G.;Lakhani, K.;Niedner, S.;Wolf, B.} + +Csikszentmihalyi (1975, 1990, 1996) systematically studied the characteristics of tasks that individuals find intrinsically rewarding, such as rock climbing. He found that a level of challenge somewhere between boredom and fear is important, and also that the experience of "flow" gained when one is fully engaged in a task is intrinsically rewarding. Amabile (1996) proposes that intrinsic motivation is a key determining factor in creativity. She defines a creative task as one that is heuristic in nature (with no predetermined path to solution), and defines a creative outcome as a novel and appropriate (useful) response to such a task. Both conditions certainly can apply to the task of developing a product or a service. +={Amiable, T.;Csikszentmihalyi, M.} + +In sum, to the extent that individual user-innovators benefit from the process of developing or modifying a product as well as from the product actually developed, they are likely to innovate even when the benefits expected from the product itself are relatively low. (Employees of a firm may wish to experience this type of intrinsic reward in their work as well, but managers and commercial constraints may give them less of an opportunity to do so. Indeed, "control over my own work" is cited by many programmers as a reason that they enjoy creating code as volunteers on open source projects more than they enjoy coding for their employers for pay.) + +1~ 5 Users' Low-Cost Innovation Niches +={Users:innovation and+50|low-cost innovation niches of+50} + +!_ The Problem-Solving Process +={Trial-and-error problem solving+11} + +Product and service development is at its core a problem-solving process. Research into the nature of problem solving shows it to consist of trial and error, directed by some amount of insight as to the direction in which a solution might lie (Baron 1988). Trial and error has also been found to be prominent in the problem-solving work of product and process development (Marples 1961; Allen 1966; von Hippel and Tyre 1995; Thomke 1998, 2003). +={Allen, T.;Baron, J.;Marples, D.;Thomke, S.;Tyre, M.;von Hippel, E.} + +Trial-and-error problem solving can be envisioned as a four-phase cycle that is typically repeated many times during the development of a new product or service. Problem solvers first conceive of a problem and a related solution based on their best knowledge and insight. Next, they build a physical or virtual prototype of both the possible solution they have envisioned and the intended use environment. Third, they run the experiment---that is, they operate their prototyped solution and see what happens. Fourth and finally, they analyze the result to understand what happened in the trial and to assess the "error information" that they gained. (In the trial-and-error formulation of the learning process, error is the new information or learning derived from an experiment by an experimenter: it is the aspect(s) of the outcome that the experimenter did not predict.) Developers then use the new learning to modify and improve the solution under development before building and running a new trial (figure 5.1). + +Trial-and-error experimentation can be informal or formal; the underlying principles are the same. As an example on the informal side, consider a user experiencing a need and then developing what eventually turns out to be a new product: the skateboard. In phase 1 of the cycle, the user combines need and solution information into a product idea: "I am bored with roller skating. How can I get down this hill in a more exciting way? Maybe it would be fun to put my skates' wheels under a board and ride down on that." In phase 2, the user builds a prototype by taking his skates apart and hammering the wheels onto the underside of a board. In phase 3, he runs the experiment by climbing onto the board and heading down the hill. In phase 4, he picks himself up from an inaugural crash and thinks about the error information he has gained: "It is harder to stay on this thing than I thought. What went wrong, and how can I improve things before my next run down the hill?" + +% (2) BUILD +% (3) RUN +% (4) ANALYZE +% (1) DESIGN +% DONE +% DESIGN REQUIREMENTS +% DESIGN ACTIVITY +% Changes in +% exogenous +% information +% Use learning from previous +% cycle(s) to conceive and design +% an improved solution. +% . +% Develop models and/or build +% prototypes to be used in +% running experiments. +% . +% Test model/prototype in real +% or simulated use environment. +% . +% Analyze findings from +% previous step and learn. +% . +% Figure 5.1 +% The trial-and-error cycle of product development. + +{di_evh_f5-1.png}image + +!_ Figure 5.1 +The trial-and-error cycle of product development. + +As an example of more formal experimentation, consider a product-development engineer working in a laboratory to improve the performance of an automobile engine. In phase 1, need and solution information are again combined into a design idea: "I need to improve engine fuel efficiency. I think that a more even expansion of the flame in the cylinders is a possible solution direction, and I think that changing the shape of the spark plug electrodes will improve this." In phase 2, the engineer builds a spark plug incorporating her new idea. In phase 3, she inserts the new spark plug into a lab test engine equipped with the elaborate instrumentation needed to measure the very rapid propagation of a flame in the cylinders of an auto engine and runs the test. In phase 4, she feeds the data into a computer and analyzes the results. She asks: "Did the change in spark plug design change the flame front as expected? Did it change fuel efficiency? How can I use what I have learned from this trial to improve things for the next one?" + +In addition to the difference in formality, there is another important difference between these two examples. In the first example, the skateboard user was conducting trial and error with a full prototype of the intended product in a real use environment---his own. In the second example, the experimental spark plug might have been a full prototype of a real product, but it probably consisted only of that portion of a real spark plug that actually extends into a combustion chamber. Also, only /{aspects}/ of the use environment were involved in the lab experiment. That is, the test engine was not a real auto engine, and it was not being operated in a real car traveling over real roads. + +Experimentation is often carried out using simplified versions---models--- of the product being designed and its intended use environment. These models can be physical (as in the example just given), or they can be virtual (as in the case of thought experiments or computer simulations). In a computer simulation, both the product and the environment are represented in digital form, and their interaction is tested entirely within a computer. For example, one might make a digital model of an automobile and a crash barrier. One could then use a computer to simulate the crash of the model car into the model barrier. One would analyze the results by calculating the effects of that crash on the structure of the car. + +The value of using models rather than the real thing in experimentation is twofold. First, it can reduce the cost of an experiment---it can be much cheaper to crash a simulated BMW than a real one. Second, it can make experimental results clearer by making them simpler or otherwise different than real life. If one is trying to test the effect of a small change on car safety, for example, it can be helpful to remove everything not related to that change from the experiment. For example, if one is testing the way a particular wheel suspension structure deforms in a crash, one does not have to know (or spend time computing) how a taillight lens will react in the crash. Also, in a real crash things happen only once and happen very fast. In a virtual crash executed by computer, on the other hand, one can repeat the crash sequence over and over, and can stretch time out or compress it exactly as one likes to better understand what is happening (Thomke 2003). +={Thomke, S.+2} + +Users and others experimenting with real prototypes in real use environments can also modify things to make tests simpler and clearer. A restaurant chef, for example, can make slight variations in just a small part of a recipe each time a customer calls for it, in order to better understand what is happening and make improvements. Similarly, a process machine user can experiment with only a small portion of machine functioning over and over to test changes and detect errors. + +Sometimes designers will test a real experimental object in a real experimental context only after experimenting with several generations of models that isolate different aspects of the real and/or encompass increasing amounts of the complexity of the real. Developers of pharmaceuticals, for example, might begin by testing a candidate drug molecule against just the purified enzyme or receptor it is intended to affect, then test it again and again against successively more complex models of the human organism (tissue cultures, animal models, etc.) before finally seeking to test its effect on real human patients during clinical trials (Thomke, von Hippel, and Franke 1998). +={Franke, N.;von Hippel, E.} + +!_ Sticky Information +={Sticky information+11:innovation and+11} + +Any experiment is only as accurate as the information that is used as inputs. If inputs are not accurate, outcomes will not be accurate: "garbage in, garbage out." + +The goal of product development and service development is to create a solution that will satisfy needs of real users within real contexts of use. The more complete and accurate the information on these factors, the higher the fidelity of the models being tested. If information could be transferred costlessly from place to place, the quality of the information available to problem solvers would or could be independent of location. But if information is costly to transfer, things are different. User-innovators, for example, will then have better information about their needs and their use context than will manufacturers. After all, they create and live in that type of information in full fidelity! Manufacturer-innovators, on the other hand, must transfer that information to themselves at some cost, and are unlikely to be able to obtain it in full fidelity at any cost. However, manufacturers might well have a higher-fidelity model of the solution types in which they specialize than users have. +={Information asymmetries+31;Local information+35;Users:information asymmetries of+31} + +It turns out that much information needed by product and service designers is "sticky." In any particular instance, the stickiness of a unit of information is defined as the incremental expenditure required to transfer that unit of information to a specified location in a form usable by a specified information seeker. When this expenditure is low, information stickiness is low; when it is high, stickiness is high (von Hippel 1994). That information is often sticky has been shown by studying the costs of transferring information regarding fully developed process technology from one location to another with full cooperation on both sides. Even under these favorable conditions, costs have been found to be high---leading one to conclude that the costs of transferring information during product and service development are likely to be at least as high. Teece (1977), for example, studied 26 international technology-transfer projects and found that the costs of information transfer ranged from 2 percent to 59 percent of total project costs and averaged 19 percent---a considerable fraction. Mansfield et al. (1982) also studied a number of projects involving technology transfer to overseas plants, and also found technology-transfer costs averaging about 20 percent of total project costs. Winter and Suzlanski (2001) explored replication of well-known organizational routines at new sites and found the process difficult and costly. +={Mansfield, E.;Suzlanski, G.;Teece, D.;Winter, S.;von Hippel, E.+63} + +Why is information transfer so costly? The term "stickiness" refers only to a consequence, not to a cause. Information stickiness can result from causes ranging from attributes of the information itself to access fees charged by an information owner. Consider tacitness---a lack of explicit encoding. Polanyi (1958, pp. 49--53) noted that many human skills are tacit because "the aim of a skilful performance is achieved by the observance of a set of rules which are not known as such to the person following them." For example, swimmers are probably not aware of the rules they employ to keep afloat (e.g., in exhaling, they do not completely empty their lungs), nor are medical experts generally aware of the rules they follow in order to reach a diagnosis of a disease. "Indeed," Polanyi says, "even in modern industries the indefinable knowledge is still an essential part of technology." Information that is tacit is also sticky because it cannot be transferred at low cost. As Polanyi points out, "an art which cannot be specified in detail cannot be transmitted by prescription, since no prescription for it exists. It can be passed on only by example from master to apprentice. . . ." Apprenticeship is a relatively costly mode of transfer. +={Polanyi, M.} + +Another cause of information stickiness is related to absorptive capacity. A firm's or an individual's capacity to absorb new, outside technical information is largely a function of prior related knowledge (Cohen and Levinthal 1990). Thus, a firm knowing nothing about circuit design but seeking to apply an advanced technique for circuit engineering may be unable to apply it without first learning more basic information. The stickiness of the information about the advanced technique for the firm in question is therefore higher than it would be for a firm that already knows that basic information. (Recall that the stickiness of a unit of information is defined as the incremental expenditure required to transfer a unit of information to a specified site in a form usable by a /{specific}/ information seeker.) +={Cohen, W.;Levinthal, D.} + +Total information stickiness associated with solving a specific problem is also determined by the amount of information required by a problem solver. Sometimes a great deal is required, for two reasons. First, as Rosenberg (1976, 1982) and Nelson (1982, 1990) point out, much technological knowledge deals with the specific and the particular. Second, one does not know in advance of problem solving which particular items will be important. +={Nelson, R.;Rosenberg, N.} + +An example from a study by von Hippel and Tyre (1995) illustrates both points nicely. Tyre and I studied how and why novel production machines failed when they were first introduced into factory use. One of the machines studied was an automated machine used by a computer manufacturing firm to place large integrated circuits onto computer circuit boards. The user firm had asked an outside group to develop what was needed, and that group had developed and delivered a robot arm coupled to a machine-vision system. The arm, guided by the vision system, was designed to pick up integrated circuits and place them on a circuit board at precise locations. +={Tyre, M.+4} + +Upon being installed in the factory, the new component-placing machine failed many times as a result of its developers' lack of some bit of information about the need or use environment. For example, one day machine operators reported that the machine was malfunctioning---again---and they did not know why. Investigation traced the problem to the machine-vision system. This system used a small TV camera to locate specific metalized patterns on the surface of each circuit board being processed. To function, the system needed to "see" these metalized patterns clearly against the background color of the board's surface. The vision system developed by the machine-development group had functioned properly in their lab when tested with sample boards from the user factory. However, the field investigation showed that in the factory it failed when boards that were light yellow in color were being processed. + +The fact that some of the boards being processed were sometimes light yellow was a surprise to the machine developers. The factory personnel who had set the specifications for the machine knew that the boards they processed varied in color; however, they had not volunteered the information, because they did not know that the developers would be interested. Early in the machine-development process, they had simply provided samples of boards used in the factory to the machine-development group. And, as it happened, these samples were green. On the basis of the samples, developers had then (implicitly) assumed that all boards processed in the field were green. It had not occurred to them to ask users "How much variation in board color do you generally experience?" Thus, they had designed the vision system to work successfully with boards that were green. + +In the case of this field failure, the item of information needed to understand or predict this problem was known to the users and could easily have been provided to the machine developers---had the developers thought to ask and/or had users thought to volunteer it. But in the actual evolution of events this was not done. The important point is that this omission was not due to poor practice; it was due to the huge amount of information about the need and the use environment that was /{potentially}/ relevant to problem solvers. Note that the use environment and the novel machine contain many highly specific attributes that could potentially interact to cause field problems. Note also that the property of the board causing this particular type of failure was very narrow and specific. That is, the problem was not that the board had physical properties, nor that it had a color. The problem was precisely that some boards were yellow, and a particular shade of yellow at that. Since a circuit board, like most other components, has many attributes in addition to color (shape, size, weight, chemical composition, resonant frequency, dielectric constant, flexibility, and so on), it is likely that problem solvers seeking to learn everything they might need to know about the use and the use environment would have to collect a very large (perhaps unfeasibly large) number of very specific items of information. + +Next, consider that the information items the problem solver will actually need (of the many that exist) are contingent on the solution path taken by the engineer designing the product. In the example, the problem caused by the yellow color of the circuit board was contingent on the design solution to the component-placing problem selected by the engineer during the development process. That is, the color of the circuit boards in the user factory became an item the problem solvers needed to know only when engineers, in the course of their development of the component placer, decided to use a vision system in the component-placing machine they were designing, and the fact that the boards were yellow became relevant only when the engineers chose a video camera and lighting that could not distinguish the metalized patterns on the board against a yellow background. Clearly, it can be costly to transfer the many items of information that a product or service developer might require---even if each individual item has low stickiness---from one site to another. + +!_ How Information Asymmetries Affect User Innovation vs. Manufacturer Innovation +={Manufacturers:information asymmetries of+11|innovation and+25} + +An important consequence of information stickiness is that it results in information asymmetries that cannot be erased easily or cheaply. Different users and manufacturers will have different stocks of information, and may find it costly to acquire information they need but do not have. As a result, each innovator will tend to develop innovations that draw on the sticky information it already has, because that is the cheapest course of action (Arora and Gambardella 1994; von Hippel 1994). In the specific case of product development, this means that users as a class will tend to develop innovations that draw heavily on their own information about need and context of use. Similarly, manufacturers as a class will tend to develop innovations that draw heavily on the types of solution information in which they specialize. +={Arora, A.;Gambardella, A.} + +This effect is visible in studies of innovation. Riggs and von Hippel (1994) studied the types of innovations made by users and manufacturers that improved the functioning of two major types of scientific instruments. +={Riggs, W.;Scientific instruments+9;Sticky information:and scientific instruments+1} + +They found that users tended to develop innovations that enabled the instruments to do qualitatively new types of things for the first time. In contrast, manufacturers tended to develop innovations that enabled users to do the same things they had been doing, but to do them more conveniently or reliably (table 5.1). For example, users were the first to modify the instruments to enable them to image and analyze magnetic domains at sub-microscopic dimensions. In contrast, manufacturers were the first to computerize instrument adjustments to improve ease of operation. Sensitivity, resolution, and accuracy improvements fall somewhere in the middle, as the data show. These types of improvements can be driven by users seeking to do specific new things, or by manufacturers applying their technical expertise to improve the products along known dimensions of merit, such as accuracy. + +!_ Table 5.1 +Users tend to develop innovations that deliver novel functions. + +% Innovation developed by + +table{~h c4; 60; 15; 15; 10; + +Type of improvement provided by innovation +User +Manufacturer +n + +New functional capability +82% +18% +17 + +Sensitivity, resolution, or accuracy improvement +48% +52% +23 + +Convenience or reliability improvement +13% +87% +24 + +Total sample size +~ +~ +64 + +}table + +Source: Riggs and von Hippel 1994, table 3. + +The variation in locus of innovation for different types of innovations, seen in table 5.1 does fit our expectations from the point of view of sticky information considerations. But these findings are not controlled for profitability, and so it might be that profits for new functional capabilities are systematically smaller than profits obtainable from improvements made to existing functionality. If so, this could also explain the patterns seen. + +Ogawa (1998) took the next necessary step and conducted an empirical study that did control for profitability of innovation opportunities. He too found the sticky-information effect---this time visible in the division of labor /{within}/ product-development projects. He studied patterns in the development of a sample of 24 inventory-management innovations. All were jointly developed by a Japanese equipment manufacturer, NEC, and by a user firm, Seven-Eleven Japan (SEJ). SEJ, the leading convenience-store company in Japan, is known for its inventory management. Using innovative methods and equipment, it is able to turn over its inventory as many as 30 times a year, versus 12 times a year for competitors (Kotabe 1995). An example of such an innovation jointly developed by SEJ and NEC is just-in-time reordering, for which SEJ created the procedures and NEC the hand-held equipment to aid store clerks in carrying out their newly designed tasks. Equipment sales to SEJ are important to NEC: SEJ has thousands of stores in Japan. +={Kotabe, M.;Ogawa, S.+1} + +The 24 innovations studied by Ogawa varied in the amount of sticky need information each required from users (having to do with store inventory- management practices) and the amount of sticky solution information required from manufacturers (having to do with new equipment technologies). Each also varied in terms of the profit expectations of both user and manufacturer. Ogawa determined how much of the design for each was done by the user firm and how much by the manufacturer firm. Controlling for profit expectations, he found that increases in the stickiness of user information were associated with a significant increase in the amount of need-related design undertaken by the user (Kendall correlation coefficient = 0.5784, P < 0.01). Conversely he found that increased stickiness of technology-related information was associated in a significant reduction in the amount of technology design done by the user (Kendall correlation coefficients = 0.4789, P < 0.05). In other words, need-intensive tasks within product-development projects will tend to be done by users, while solution-intensive ones will tend to be done by manufacturers. + +!_ Low-Cost Innovation Niches + +Just as there are information asymmetries between users and manufacturers as classes, there are also information asymmetries among individual user firms and individuals, and among individual manufacturers as well. A study of mountain biking by Lüthje, Herstatt, and von Hippel (2002) shows that information held locally by individual user-innovators strongly affects the type of innovations they develop. Mountain biking involves bicycling on rough terrain such as mountain trails. It may also involve various other extreme conditions, such as bicycling on snow and ice and in the dark (van der Plas and Kelly 1998). +={Kelly, C.;Lüthje, C.;Van der Plas, R.;Herstatt, C.+12;Lüthje, C.+12;Mountain biking+12;Users:innovate-or-buy decisions by+12} + +Mountain biking began in the early 1970s when some young cyclists started to use their bicycles off-road. Existing commercial bikes were not suited to this type of rough use, so early users put together their own bikes. They used strong bike frames, balloon tires, and powerful drum brakes designed for motorcycles. They called their creations "clunkers" (Penning 1998; Buenstorf 2002). +={Buenstorf, G.;Penning, C.} + +Commercial manufacture of mountain bikes began about 1975, when some of the early users of mountain bikes began to also build bikes for others. A tiny cottage industry developed, and by 1976 a half-dozen small assemblers existed in Marin County, California. In 1982, a small firm named Specialized, an importer of bikes and bike parts that supplied parts to the Marin County mountain bike assemblers, took the next step and brought the first mass-produced mountain bike to market. Major bike manufacturers then followed and started to produce mountain bikes and sell them at regular bike shops across the United States. By the mid 1980s the mountain bike was fully integrated in the mainstream bike market, and it has since grown to significant size. In 2000, about $58 billion (65 percent) of total retail sales in the US bicycle market were generated in the mountain bike category (National Sporting Goods Association 2002). + +Mountain biking enthusiasts did not stop their innovation activities after the introduction of commercially manufactured mountain bikes. They kept pushing mountain biking into more extreme environmental conditions, and they continued to develop new sports techniques involving mountain bikes (/{Mountain Bike}/ 1996). Thus, some began jumping their bikes from house roofs and water towers and developing other forms of acrobatics. As they did so, they steadily discovered needs for improvements to their equipment. Many responded by developing and building the improvements they needed for themselves. + +Our sample of mountain bikers came from the area that bikers call the North Shore of the Americas, ranging from British Columbia to Washington State. Expert mountain bikers told us that this was a current "hot spot" where new riding styles were being developed and where the sport was being pushed toward new limits. We used a questionnaire to collect data from members of North Shore mountain biking clubs and from contributors to the mailing lists of two North Shore online mountain biking forums. Information was obtained from 291 mountain bikers. Nineteen percent of bikers responding to the questionnaire reported developing and building a new or modified item of mountain biking equipment for their own use. The innovations users developed were appropriate to the needs associated with their own riding specialties and were heterogeneous in function. +={Custom products:heterogeneity of user needs and+6;User need+6;Users:needs of+6} + +We asked mountain bikers who had innovated about the sources of the need and solution information they had used in their problem solving. In 84.5 percent of the cases respondents strongly agreed with the statement that their need information came from /{personal needs they had frequently experienced}/ rather than from information about the needs of others. With respect to solution information, most strongly agreed with the statement that /{they used solution information they already had}/, rather than learning new solution information in order to develop their biking equipment innovation (table 5.2). + +!_ Table 5.2 +Innovators tended to use solution information they already had "in stock" to develop their ideas. Tabulated here are innovators' answers to the question "How did you obtain the information needed to develop your solution?" +={Lüthje, C.} + +table{~h c4; 55; 15; 15; 15; + +. +Mean +Median +Very high or high agreement + +"I had it due to my professional background." +4.22 +4 +47.5% + +"I had it from mountain biking or another hobby." +4.56 +5 +52.4% + +"I learned it to develop this idea." +2.11 +2 +16% + +}table + +Source: Lüthje et al. 2003. N = 61. Responses were rated on a seven-point scale, with 1 = not at all true and 7 = very true. + +!_ Discussion + +To the extent that users have heterogeneous and sticky need and solution information, they will have heterogeneous low-cost innovation niches. Users can be sophisticated developers within those niches, despite their reliance on their own need information and solution information that they already have in stock. On the need side, recall that user-innovators generally are lead users and generally are expert in the field or activity giving rise to their needs. With respect to solution information, user firms have specialties that may be at a world-class level. Individual users can also have high levels of solution expertise. After all, they are students or employees during the day, with training and jobs ranging from aerospace engineering to orthopedic surgery. Thus, mountain bikers might not want to /{learn}/ orthopedic surgery to improve their biking equipment, but if they already /{are}/ expert in that field they could easily draw on what they know for relevant solution information. Consider the following example drawn from the study of mountain biking discussed earlier: + +I'm a human movement scientist working in ergonomics and biomechanics. I used my medical experience for my design. I calculated a frame design suitable for different riding conditions (downhill, climb). I did a CAD frame design on Catia and conceived a spring or air coil that can be set to two different heights. I plan to build the bike next year. + +Users' low-cost innovation niches can be narrow because their development "labs" for such experimentation often consist largely of their individual use environment and customary activities. Consider, for example, the low-cost innovation niches of individual mountain bikers. Serious mountain bikers generally specialize in a particular type of mountain biking activity. Repeated specialized play and practice leads to improvement in related specialized skills. This, in turn, may lead to a discovery of a problem in existing mountain biking equipment and a responsive innovation. Thus, an innovating user in our mountain biking study reported the following: "When doing tricks that require me to take my feet off the bike pedals in mid-air, the pedals often spin, making it hard to put my feet back onto them accurately before landing." Such a problem is encountered only when a user has gained a high level of skill in the very specific specialty of jumping and performing tricks in mid-air. Once the problem has been encountered and recognized, however, the skilled specialist user can re-evoke the same problematic conditions at will during ordinary practice. The result is the creation of a low-cost laboratory for testing and comparing different solutions to that problem. The user is benefiting from enjoyment of his chosen activity and is developing something new via learning by doing at the same time. + +In sharp contrast, if that same user decides to stray outside his chosen activity in order to develop innovations of interest to others with needs that are different from his own, the cost properly assignable to innovation will rise. To gain an equivalent-quality context for innovation, such a user must invest in developing personal skill related to the new innovation topic. Only in this way will he gain an equivalently deep understanding of the problems relevant to practitioners of that skill, and acquire a "field laboratory" appropriate to developing and testing possible solutions to those new problems. + +Of course, these same considerations apply to user firms as well as to individual users. A firm that is in the business of polishing marble floors is a user of marble polishing equipment and techniques. It will have a low-cost learning laboratory with respect to improvements in these because it can conduct trial-and-error learning in that "lab" during the course of its customary business activities. Innovation costs can be very low because innovation activities are paid for in part by rewards unrelated to the novel equipment or technique being developed. The firm is polishing while innovating---and is getting paid for that work (Foray 2004). The low cost innovation niche of the marble polishing firm may be narrow. For example, it is unlikely to have any special advantage with respect to innovations in the polishing of wood floors, which requires different equipment and techniques. +={Foray, D.} + +1~ 6 Why Users Often Freely Reveal Their Innovations +={Free revealing of innovation information:evidence of+10|users and+50;Information commons+13;Intellectual property rights:free revealing and+50;Users:free revealing by+50} + +Products, services, and processes developed by users become more valuable to society if they are somehow diffused to others that can also benefit from them. If user innovations are not diffused, multiple users with very similar needs will have to invest to (re)develop very similar innovations, which would be a poor use of resources from the social welfare point of view. Empirical research shows that new and modified products developed by users often do diffuse widely---and they do this by an unexpected means: user-innovators themselves often voluntarily publicly reveal what they have developed for all to examine, imitate, or modify without any payment to the innovator. + +In this chapter, I first review evidence that free revealing is frequent. Next, I discuss the case for free revealing from an innovators' perspective, and argue that it often can be the best /{practical}/ route for users to increase profit from their innovations. Finally, I discuss the implications of free revealing for innovation theory. + +!_ Evidence of Free Revealing +={Free revealing of innovation information} + +When my colleagues and I say that an innovator "freely reveals" proprietary information, we mean that all intellectual property rights to that information are voluntarily given up by that innovator and all parties are given equal access to it---the information becomes a public good (Harhoff, Henkel, and von Hippel 2003). For example, placement of non-patented information in a publicly accessible site such as a journal or public website would be free revealing as we define it. Free revealing as so defined does not mean that recipients necessarily acquire and utilize the revealed information at no cost to themselves. Recipients may, for example, have to pay for a subscription to a journal or for a field trip to an innovation site to acquire the information being freely revealed. Also, some may have to obtain complementary information or other assets in order to fully understand that information or put it to use. However, if the possessor of the information does not profit from any such expenditures made by its adopters, the information itself is still freely revealed, according to our definition. This definition of free revealing is rather extreme in that revealing with some small constraints, as is sometimes done, would achieve largely the same economic effect. Still, it is useful to discover that innovations are often freely revealed even in terms of this stringent definition. +={Harhoff, D.;Henkel, J.} + +Routine and intentional free revealing among profit-seeking firms was first described by Allen (1983). He noticed the phenomenon, which he called collective invention, in historical records from the nineteenth-century English iron industry. In that industry, ore was processed into iron by means of large furnaces heated to very high temperatures. Two attributes of the furnaces used had been steadily improved during the period 1850--1875: chimney height had been increased and the temperature of the combustion air pumped into the furnace during operation had been raised. These two technical changes significantly and progressively improved the energy efficiency of iron production---a very important matter for producers. Allen noted the surprising fact that employees of competing firms publicly revealed information on their furnace design improvements and related performance data in meetings of professional societies and in published material. +={Allen, R.;Free revealing of innovation information:collective invention and} + +After Allen's initial observation, a number of other authors searched for free revealing among profit-seeking firms and frequently found it. Nuvolari (2004) studied a topic and time similar to that studied by Allen and found a similar pattern of free revealing in the case of improvements made to steam engines used to pump out mines in the 1800s. At that time, mining activities were severely hampered by water that tended to flood into mines of any depth, and so an early and important application of steam engines was for the removal of water from mines. Nuvolari explored the technical history of steam engines used to drain copper and tin mines in England's Cornwall District. Here, patented steam engines developed by James Watt were widely deployed in the 1700s. After the expiration of the Watt patent, an engineer named Richard Trevithick developed a new type of high-pressure engine in 1812. Instead of patenting his invention, he made his design available to all for use without charge. The engine soon became the basic design used in Cornwall. Many mine engineers improved Trevithick's design further and published what they had done in a monthly journal, /{Leans Engine Reporter}/. This journal had been founded by a group of mine managers with the explicit intention of aiding the rapid diffusion of best practices among these competing firms. +={Nuvolari, A.;Trevithick, R.;Watt, J.} + +Free revealing has also been documented in the case of more recent industrial equipment innovations developed by users. Lim (2000) reports that IBM was first to develop a process to manufacture semiconductors that incorporated copper interconnections among circuit elements instead of the traditionally used aluminum ones. After some delay, IBM revealed increasing amounts of proprietary process information to rival users and to equipment suppliers. Widespread free revealing was also found in the case of automated clinical chemistry analyzers developed by the Technicon Corporation for use in medical diagnosis. After commercial introduction of the basic analyzer, many users developed major improvements to both the analyzer and to the clinical tests processed on that equipment. These users, generally medical personnel, freely revealed their improvements via publication, and at company-sponsored seminars (von Hippel and Finkelstein 1979). Mishina (1989) found free, or at least selective no-cost revealing in the lithographic equipment industry. He reported that innovating equipment users would sometimes reveal what they had done to machine manufacturers. Morrison, Roberts, and I, in our study of library IT search software (discussed in chapter 2 above), found that innovating users freely revealed 56 percent of the software modifications they had developed. Reasons given for not revealing the remainder had nothing to do with considerations of intellectual property protection. Rather, users who did not share said they had no convenient users' group forum for doing so, and/or they thought their innovation was too specialized to be of interest to others. +={IBM;Finkelstein, S.;Lim, K.;Mishina, K.;Morrison, Pamela;Roberts, J.;Technicon Corporation;Free revealing of innovation information:and library information search system;Lead users:library information search system and;Library information search system} + +Innovating users of sports equipment also have been found to freely reveal their new products and product modifications. Franke and Shah (2003), in their study of four communities of serious sports enthusiasts described in chapter 2, found that innovating users uniformly agreed with the statement that they shared their innovation with their entire community free of charge---and strongly disagreed with the statement that they sold their innovations (p < 0.001, t-test for dependent samples). Interestingly, two of the four communities they studied engaged in activities involving significant competition among community members. Innovators in these two communities reported high but significantly less willingness to share, as one might expect in view of the potentially higher level of competitive loss free revealing would entail. +={Franke, N.;Shah, S.;Free revealing of innovation information:and sports equipment;Sporting equipment:free revealing and} + +Contributors to the many open source software projects extant (more than 83,000 were listed on SourceForge.net in 2004) also routinely make the new code they have written public. Well-known open source software products include the Linux operating system software and the Apache web server computer software. Some conditions are attached to open source code licensing to ensure that the code remains available to all as an information commons. Because of these added protections, open source code does not quite fit the definition of free revealing given earlier in this chapter. (The licensing of open source software will be discussed in detail in chapter 7.) +={Linux+1;Apache web server software;Free revealing of innovation information:and open source software+1;Open source software:free revealing and+1} + +Henkel (2003) showed that free revealing is sometimes practiced by directly competing manufacturers. He studied manufacturers that were competitors and that had all built improvements and extensions to a type of software known as embedded Linux. (Such software is "embedded in" and used to operate equipment ranging from cameras to chemical plants.) He found that these manufacturers freely revealed improvements to the common software platform that they all shared and, with a lag, also revealed much of the equipment-specific code they had written. +={Henkel, J.;Free revealing of innovation information:manufacturers and;Manufacturers:free revealing and} + +!_ The Practical Case for Free Revealing +={Free revealing of innovation information:case for+2} + +The "private investment model" of innovation assumes that innovation will be supported by private investment if and as innovators can make attractive profits from doing so. In this model, any free revealing or uncompensated "spillover" of proprietary knowledge developed by private investment will reduce the innovator's profits. It is therefore assumed that innovators will strive to avoid spillovers of innovation-related information. From the perspective of this model, then, free revealing is a major surprise: it seems to make no sense that innovators would intentionally give away information for free that they had invested money to develop. + +In this subsection I offer an explanation for the puzzle by pointing out that free revealing is often the best /{practical}/ option available to user innovators. Harhoff, Henkel, and von Hippel (2003) found that it is in practice very difficult for most innovators to protect their innovations from direct or approximate imitation. This means that the practical choice is typically /{not}/ the one posited by the private investment model: should innovators voluntarily freely reveal their innovations, or should they protect them? Instead, the real choice facing user innovators often is whether to voluntarily freely reveal or to arrive at the same end state, perhaps with a bit of a lag, via involuntary spillovers. The practical case for voluntary free revealing is further strengthened because it can be accomplished at low cost, and often yields private benefits to the innovators. When benefits from free revealing exceed the benefits that are /{practically}/ obtainable from holding an innovation secret or licensing it, free revealing should be the preferred course of action for a profit-seeking firm or individual. +={Harhoff, D.;Henkel, J.;Free revealing of innovation information:and information diffusion+9} + +!_ Others Often Know Something Close to "Your" Secret + +Innovators seeking to protect innovations they have developed as their intellectual property must establish some kind of monopoly control over the innovation-related information. In practice, this can be done either by effectively hiding the information as a trade secret, or by getting effective legal protection by patents or copyrights. (Trademarks also fall under the heading of intellectual property, but we do not consider those here.) In addition, however, it must be the case that /{others}/ do not know substitute information that skirts these protections and that they /{are}/ willing to reveal. If multiple individuals or firms have substitutable information, they are likely to vary with respect to the competitive circumstances they face. A specific innovator's ability to protect "its" innovation as proprietary property will then be determined for all holders of such information by the decision of the one having the least to lose by free revealing. If one or more information holders expect no loss or even a gain from a decision to freely reveal, then the secret will probably be revealed despite other innovators' best efforts to avoid this fate. +={Intellectual property rights:copyrights and|patents and|trade secrets and} + +Commonly, firms and individuals have information that would be valuable to those seeking to imitate a particular innovation. This is because innovators and imitators seldom need access to a specific version of an innovation. Indeed, engineers seldom even want to see a solution exactly as their competitors have designed it: specific circumstances differ even among close competitors, and solutions must in any case be adapted to each adopter's precise circumstances. What an engineer does want to extract from the work of others is the principles and the general outline of a possible improvement, rather than the easily redevelopable details. This information is likely to be available from many sources. + +For example, suppose you are a system developer at a bank and you are tasked with improving in-house software for checking customers' credit online. On the face of it, it might seem that you would gain most by studying the details of the systems that competing banks have developed to handle that same task. It is certainly true that competing banks may face market conditions very similar to your bank, and they may well not want to reveal the valuable innovations they have developed to a competitor. However, the situation is still by no means bleak for an imitator. There are also many non-bank users of online credit checking systems in the world---probably millions. Some will have innovated and be willing to reveal what they have done, and some of these will have the information you need. The likelihood that the information you seek will be freely revealed by some individual or firm is further enhanced by the fact that your search for novel basic improvements may profitably extend far beyond the specific application of online credit checking. Other fields will also have information on components of the solution you need. For example, many applications in addition to online credit checking use software components designed to determine whether persons seeking information are authorized to receive it. Any can potentially be a provider of information for this element of your improved system. + +A finding by Lakhani and von Hippel (2003) illustrates the possibility that many firms and individuals may have similar information. Lakhani and von Hippel studied Apache help-line websites. These sites enable users having problems with Apache software to post questions, and others to respond with answers. The authors asked those who provided answers how many other help-line participants they thought also knew a solution to specific and often obscure problems they had answered on the Apache online forum. Information providers generally were of the opinion that some or many other help-line participants also knew a solution, and could have provided an answer if they themselves had not done so (table 6.1). +={Lakhani, K;Apache web server software+2} + +!_ Table 6.1 +Even very specialized information is often widely known. Tabulated here are answers to a question asked of help-line information providers: "How many others do you think knew the answer to the question you answered?" +={Lakhani, K} + +table{~h c3; 40; 30; 30; + +~ +Frequent providers (n = 21) + +Other providers (n = 67) + +Many +38% +61% + +A few with good Apache knowledge +38% +18% + +A few with specific problem experience +24% +21% + +}table + +Source: Lakhani and von Hippel 2003, table 10. + +Even in the unlikely event that a secret is held by one individual, that information holder will not find it easy to keep a secret for long. Mansfield (1985) studied 100 American firms and found that "information concerning development decisions is generally in the hands of rivals within about 12 to 18 months, on the average, and information concerning the detailed nature and operation of a new product or process generally leaks out within about a year." This observation is supported by Allen's previously mentioned study of free revealing in the nineteenth-century English iron industry. Allen (1983, p. 17) notes that developers of improved blast furnace designs were unlikely to be able to keep their valuable innovations secret because "in the case of blast furnaces and steelworks, the construction would have been done by contractors who would know the design." Also, "the designs themselves were often created by consulting engineers who shifted from firm to firm." +={Allen, R.;Mansfield, E.+4;Free revealing of innovation information:evidence of} + +!_ Low Ability to Profit from Patenting +={Free revealing of innovation information:patent protection and+12;Intellectual property rights:patents and+12} + +Next, suppose that a single user-innovator is the only holder of a particular unit of innovation-related information, and that for some reason there are no easy substitutes. That user actually does have a real choice with respect to disposing of its intellectual property: it can keep the innovation secret and profit from in-house use only, it can license it, or it can choose to freely reveal the innovation. We have just seen that the practical likelihood of keeping a secret is low, especially when there are multiple potential providers of very similar secrets. But if one legally protects an innovation by means of a patent or a copyright, one need not keep an innovation secret in order to control it. Thus, a firm or an individual that freely reveals is forgoing any chance to get a profit via licensing of intellectual property for a fee. What, in practical terms, is the likelihood of succeeding at this and so of forgoing profit by choosing to freely reveal? +={Intellectual property rights:copyrights and+1|patents and+4} + +In most subject matters, the relevant form of legal protection for intellectual property is the patent, generally the "utility" patent. (The notable exception is the software industry, where material to be licensed is often protected by copyright.) In the United States, utility patents may be granted for inventions related to composition of matter and/or a method and/or a use. They may not be granted for ideas per se, mathematical formulas, laws of nature, and anything repugnant to morals and public policy. Within subject matters potentially protectable by patent, protection will be granted only when the intellectual property claimed meets additional criteria of usefulness, novelty, and non-obviousness to those skilled in the relevant art. (The tests for whether these criteria have been met are based on judgement. When a low threshold is used, patents are easier to get, and vice-versa (Hall and Harhoff 2004).) +={Hall, B.;Harhoff, D.} + +The real-world value of patent protection has been studied for more than 40 years. Various researchers have found that, with a few exceptions, innovators do /{not}/ think that patents are very useful either for excluding imitators or for capturing royalties in most industries. (Fields generally cited as exceptions are pharmaceuticals, chemicals, and chemical processes, where patents do enable markets for technical information (Arora et al. 2001).) Most respondents also say that the availability of patent protection does not induce them to invest more in research and development than they would if patent protection did not exist. Taylor and Silberston (1973) reported that 24 of 32 firms said that only 5 percent or less of their R&D expenditures were dependent on the availability of patent protection. Levin et al. (1987) surveyed 650 R&D executives in 130 different industries and found that all except respondents from the chemical and pharmaceutical industries judged patents to be "relatively ineffective." Similar findings have been reported by Mansfield (1968, 1985), by Cohen et al. (2000, 2002), by Arundel (2001), and by Sattler (2003). +={Arora, A.;Arundel, A.;Cohen, W.;Gambardella, A.;Levin, R.;Sattler, H.;Silberston, Z.;Taylor, C.} + +% Slaughter, S., 83--85 + +% ={Fosfuri, A.;Goto, A.} + +Despite recent governmental efforts to strengthen patent enforcement, a comparison of survey results indicates only a modest increase between 1983 and 1994 in large firms' evaluations of patents' effectiveness in protecting innovations or promoting innovation investments. Of course, there are notable exceptions: some firms, including IBM and TI, report significant income from the licensing of their patented technologies. + +% ={IBM} + +Obtaining a patent typically costs thousands of dollars, and it can take years (Harhoff, Henkel, and von Hippel 2003). This makes patents especially impractical for many individual user-innovators, and also for small and medium-size firms of limited means. As a stark example, it is hard to imagine that an individual user who has developed an innovation in sports equipment would find it appealing to invest in a patent and in follow-on efforts to find a licensee and enforce payment. The few that do attempt this, as Shah (2000) has shown, seldom gain any return from licensees as payment for their time and expenditures. +={Harhoff, D.;Henkel, J.;Shah, S.;Intellectual property rights:licensing of+1} + +Copyright is a low-cost and immediate form of legal protection that applies to original writings and images ranging from software code to movies. Authors do not have to apply for copyright protection; it "follows the author's pen across the page." Licensing of copyrighted works is common, and it is widely practiced by commercial software firms. When one buys a copy of a non-custom software product, one is typically buying only a license to use the software, not buying the intellectual property itself. However, copyright protection is also limited in an important way. Only the specific original writing itself is protected, not the underlying invention or ideas. As a consequence, copyright protections can be circumvented. For example, those who wish to imitate the function of a copyrighted software program can do so by writing new software code to implement that function. +={Intellectual property rights:copyrights and;Free revealing of innovation information:copyright protection and} + + +Given the above, we may conclude that in practice little profit is being sacrificed by many user-innovator firms or individuals that choose to forgo the possibility of legally protecting their innovations in favor of free revealing. + +!_ Positive Incentives for Free Revealing +={Free revealing of innovation information:incentives for+7;Information commons+7} + +As was noted earlier, when we say that an innovator "freely reveals" proprietary information we mean that all existing and potential intellectual property rights to that information are voluntarily given up by that innovator and that all interested parties are given access to it---the information becomes a public good. These conditions can often be met at a very low cost. For example, an innovator can simply post information about the innovation on a website without publicity, so those potentially interested must discover it. Or a firm that has developed a novel process machine can agree to give a factory tour to any firm or individual that thinks to ask for one, without attempting to publicize the invention or the availability of such tours in any way. However, it is clear that many innovators go beyond basic, low-cost forms of free revealing. They spend significant money and time to ensure that their innovations are seen in a favorable light, and that information about them is effectively and widely diffused. Writers of computer code may work hard to eliminate all bugs and to document their code in a way that is very easy for potential adopters to understand before freely revealing it. Plant owners may repaint their plant, announce the availability of tours at a general industry meeting, and then provide a free lunch for their visitors. + +Innovators' /{active}/ efforts to diffuse information about their innovations suggest that there are positive, private rewards to be obtained from free revealing. A number of authors have considered what these might be. Allen (1983) proposed that reputation gained for a firm or for its managers might offset a reduction in profits for the firm caused by free revealing. Raymond (1999) and Lerner and Tirole (2002) elaborated on this idea when explaining free revealing by contributors to open source software development projects. Free revealing of high-quality code, they noted, can increase a programmer's reputation with his peers. This benefit can lead to other benefits, such as an increase in the programmer's value on the job market. Allen has argued that free revealing might have effects that actually increase a firm's profits if the revealed innovation is to some degree specific to assets owned by the innovator (see also Hirschleifer 1971). +={Allen, R.+1;Hirschleifer, J.;Lerner, J.;Raymond, E.;Tirole, J.;Free revealing of innovation information:and open source software;Open source software:free revealing and} + +Free revealing may also increase an innovator's profit in other ways. When an innovating user freely reveals an innovation, the direct result is to increase the diffusion of that innovation relative to what it would be if the innovation were either licensed at a fee or held secret. The innovating user may then benefit from the increase in diffusion via a number of effects. Among these are network effects. (The classic illustration of a network effect is that the value of each telephone goes up as more are sold, because the value of a phone is strongly affected by the number of others who can be contacted in the network.) In addition, and very importantly, an innovation that is freely revealed and adopted by others can become an informal standard that may preempt the development and/or commercialization of other versions of the innovation. If, as Allen suggested, the innovation that is revealed is designed in a way that is especially appropriate to conditions unique to the innovator, this can result in creating a permanent source of advantage for that innovator. + +Being first to reveal a certain type of innovation increases a user firm's chances of having its innovation widely adopted, other things being equal. This may induce innovators to race to reveal first. Firms engaged in a patent race may disclose information voluntarily if the profits from success do not go only to the winner of the race. If being second quickly is preferable to being first relatively late, there will be an incentive for voluntary revealing in order to accelerate the race (de Fraja 1993). +={de Fraja, G.} + +Incentives to freely reveal have been most deeply explored in the specific case of open source software projects. Students of the open source software development process report that innovating users have a number of motives for freely revealing their code to open source project managers and open source code users in general. If they freely reveal, others can debug and improve upon the modules they have contributed, to everyone's benefit. They are also motivated to have their improvement incorporated into the standard version of the open source software that is generally distributed by the volunteer open source user organization, because it will then be updated and maintained without further effort on the innovator's part. This volunteer organization is the functional equivalent of a manufacturer with respect to inducing manufacturer improvements, because a user-developed improvement will be assured of inclusion in new "official" software releases only if it is approved and adopted by the coordinating user group. Innovating users also report being motivated to freely reveal their code under a free or open source license by a number of additional factors. These include giving support to open code and "giving back" to those whose freely revealed code has been of value to them (Lakhani and Wolf 2005). +={Lakhani, K.;Lakhani, K.;Wolf, B.;Free revealing of innovation information:and open source software+4;Open source software:free revealing and+4} + +By freely revealing information about an innovative product or process, a user makes it possible for manufacturers to learn about that innovation. Manufacturers may then improve upon it and/or offer it at a price lower than users' in-house production costs (Harhoff et al. 2003). When the improved version is offered for sale to the general market, the original user-innovator (and other users) can buy it and gain from in-house use of the improvements. For example, consider that manufacturers often convert user-developed innovations ("home-builts") into a much more robust and reliable form when preparing them for sale on the commercial market. Also, manufacturers offer related services, such as field maintenance and repair programs, that innovating users must otherwise provide for themselves. +={iHarhoff, D.+1} + +A variation of this argument applies to the free revealing among competing manufacturers documented by Henkel (2003). Competing developers of embedded Linux systems were creating software that was specifically designed to run the hardware products of their specific clients. Each manufacturer could freely reveal this equipment-specific code without fear of direct competitive repercussions: it was applicable mainly to specific products made by a manufacturer's client, and it was less valuable to others. At the same time, all would jointly benefit from free revealing of improvements to the underlying embedded Linux code base, upon which they all build their proprietary products. After all, the competitive advantages of all their products depended on this code base's being equal to or better than the proprietary software code used by other manufacturers of similar products. Additionally, Linux software was a complement to hardware that many of the manufacturers in Henkel's sample also sold. Improved Linux software would likely increase sales of their complementary hardware products. (Complement suppliers' incentives to innovate have been modeled by Harhoff (1996).) +={Linux;Henkel, J.} + +!_ Free Revealing and Reuse +={Free revealing of innovation information+2} + +Of course, free revealing is of value only if others (re)use what has been revealed. It can be difficult to track what visitors to an information commons take away and reuse, and there is as yet very little empirical information on this important matter. Valuable forms of reuse range from the gaining of general ideas of development paths to pursue or avoid to the adoption of specific designs. For example, those who download software code from an open source project repository can use it to learn about approaches to solving a particular software problem and/or they may reuse portions of the downloaded code by inserting it directly into a software program of their own. Von Krogh et al. (2004) studied the latter type of code reuse in open source software and found it very extensive. Indeed, they report that /{most}/ of the lines of software code in the projects they studied were taken from the commons of other open source software projects and software libraries and reused. +={von Krogh, G.+10} + +% Spaeth, S., 88,? + +In the case of academic publications, we see evidence that free revealing does increase reuse---a matter of great importance to academics. A citation is an indicator that information contained in an article has been reused: the article has been read by the citing author and found useful enough to draw to readers' attention. Recent empirical studies are finding that articles to which readers have open access---articles available for free download from an author's website, for example---are cited significantly more often than are equivalent articles that are available only from libraries or from publishers' fee-based websites. Antelman (2004) finds an increase in citations ranging from 45 percent in philosophy to 91 percent in mathematics. She notes that "scholars in diverse disciplines are adopting open-access practices at a surprisingly high rate and are being rewarded for it, as reflected in [citations]." +={Antelman, K.} + +!_ Implications for Theory + +We have seen that in practice free revealing may often be the best practical course of action for innovators. How can we tie these observations back to theory, and perhaps improve theory as a result? At present there are two major models that characterize how innovation gets rewarded. The private investment model is based on the assumption that innovation will be supported by private investors expecting to make a profit. To encourage private investment in innovation, society grants innovators some limited rights to the innovations they generate via patents, copyrights, and trade secrecy laws. These rights are intended to assist innovators in getting private returns from their innovation-related investments. At the same time, the monopoly control that society grants to innovators and the private profits they reap create a loss to society relative to the free and unfettered use by all of the knowledge that the innovators have created. Society elects to suffer this social loss in order to increase innovators' incentives to invest in the creation of new knowledge (Arrow 1962; Dam 1995). +={Arrow, K.;Dam, K.;Intellectual property rights:copyrights and|trade secrets and;Free revealing of innovation information:copyright protection and|patents and|trade secrecy and} + +The second major model for inducing innovation is termed the collective action model. It applies to the provision of public goods, where a public good is defined by its non-excludability and non-rivalry: if any user consumes it, it cannot be feasibly withheld from other users, and all consume it on the same terms (Olson 1967). The collective action model assumes that innovators are /{required}/ to relinquish control of knowledge or other assets they have developed to a project and so make them a public good. This requirement enables collective action projects to avoid the social loss associated with the restricted access to knowledge of the private investment model. At the same time, it creates problems with respect to recruiting and motivating potential contributors. Since contributions to a collective action project are a public good, users of that good have the option of waiting for others to contribute and then free riding on what they have done (Olson 1967). +={Olson, M.+1;Free revealing of innovation information:collective action model for+6;Social welfare:free revealing and} + +The literature on collective action deals with the problem of recruiting contributors to a task in a number of ways. Oliver and Marwell (1988) and Taylor and Singleton (1993) predict that the description of a project's goals and the nature of recruiting efforts should matter a great deal. Other researchers argue that the creation and deployment of selective incentives for contributors is essential to the success of collective action projects. For example, projects may grant special credentials to especially productive project members (Friedman and McAdam 1992; Oliver 1980). The importance of selective incentives suggests that small groups will be most successful at executing collective action projects. In small groups, selective incentives can be carefully tailored for each group member and individual contributions can be more effectively monitored (Olson 1967; Ostrom 1998). +={Friedman, D.;Marwell, G.;McAdam, D.;Oliver, P.;Ostrom, E.;Singleton, S.;Taylor, M.} + +Interestingly, successful open source software projects do not appear to follow any of the guidelines for successful collective action projects just described. With respect to project recruitment, goal statements provided by successful open source software projects vary from technical and narrow to ideological and broad, and from precise to vague and emergent (for examples, see goal statements posted by projects hosted on Sourceforge.net).~{ As a specific example of a project with an emergent goal, consider the beginnings of the Linux open source software project. In 1991, Linus Torvalds, a student in Finland, wanted a Unix operating system that could be run on his PC, which was equipped with a 386 processor. Minix was the only software available at that time but it was commercial, closed source, and it traded at US$150. Torvalds found this too expensive, and started development of a Posix-compatible operating system, later known as Linux. Torvalds did not immediately publicize a very broad and ambitious goal, nor did he attempt to recruit contributors. He simply expressed his private motivation in a message he posted on July 3, 1991, to the USENET newsgroup comp.os.minix (Wayner 2000): /{Hello netlanders, Due to a project I'm working on (in minix), I'm interested in the posix standard definition.}/ [Posix is a standard for UNIX designers. A software using POSIX is compatible with other UNIX-based software.] /{Could somebody please point me to a (preferably) machine-readable format of the latest posix-rules? Ftp-sites would be nice.}/ In response, Torvalds got several return messages with Posix rules and people expressing a general interest in the project. By the early 1992, several skilled programmers contributed to Linux and the number of users increased by the day. Today, Linux is the largest open source development project extant in terms of number of developers. }~ Further, such projects may engage in no active recruiting beyond simply posting their intended goals and access address on a general public website customarily used for this purpose (for examples, see the Freshmeat.net website). Also, projects have shown by example that they can be successful even if large groups---perhaps thousands---of contributors are involved. Finally, open source software projects seem to expend no effort to discourage free riding. Anyone is free to download code or seek help from project websites, and no apparent form of moral pressure is applied to make a compensating contribution (e.g., "If you benefit from this code, please also contribute . . ."). +={Free revealing of innovation information:open source software and} + +What can explain these deviations from expected practice? What, in other words, can explain free revealing of privately funded innovations and enthusiastic participation in projects to produce a public good? From the theoretical perspective, Georg von Krogh and I think the answer involves revisiting and easing some of the basic assumptions and constraints conventionally applied to the private investment and collective action models of innovation. Both, in an effort to offer "clean" and simple models for research, have excluded from consideration a very rich and fertile middle ground where incentives for private investment and collective action can coexist, and where a "private-collective" innovation model can flourish. More specifically, a private-collective model of innovation occupies the middle ground between the private investment model and the collective action model by: +={Free revealing of innovation information:private-collective model for+3;Private-collective model+3;Social welfare:private-collective model and+3} + +_* Eliminating the assumption in private investment models that free revealing of innovations developed with private funds will represent a loss of private profit for the innovator and so will not be engaged in voluntarily. Instead the private-collective model proposes that under common conditions free revealing of proprietary innovations may increase rather than decrease innovators' private profit. + +_* Eliminating the assumption in collective action models that a free rider obtains benefits from the completed public good that are equal to those a contributor obtains. Instead, the private-collective model proposes that contributors to a public good can /{inherently}/ obtain greater private benefits than free riders. These provide incentives for participation in collective action projects that need not be managed by project personnel (von Hippel and von Krogh 2003). +={von Hippel, E.} + +In summation: Innovations developed at private cost are often revealed freely, and this behavior makes economic sense for participants under commonly encountered conditions. A private-collective model of innovation incentives can explain why and when knowledge created by private funding may be offered freely to all. When the conditions are met, society appears to have the best of both worlds---new knowledge is created by private funding and then freely revealed to all. + +1~ 7 Innovation Communities +={Innovation communities+56:innovation and+56} + +It is now clear that users often innovate, and that they often freely reveal their innovations. But what about informal cooperation among users? What about /{organized}/ cooperation in development of innovations and other matters? The answer is that both flourish among user-innovators. Informal user-to-user cooperation, such as assisting others to innovate, is common. Organized cooperation in which users interact within communities, is also common. Innovation communities are often stocked with useful tools and infrastructure that increase the speed and effectiveness with which users can develop and test and diffuse their innovations. + +In this chapter, I first show that user innovation is a widely distributed process and so can be usefully drawn together by innovation communities. I next explore the valuable functions such communities can provide. I illustrate with a discussion of free and open source software projects, a very successful form of innovation community in the field of software development. Finally, I point out that innovation communities are by no means restricted to the development of information products such as software, and illustrate with the case of a user innovation community specializing in the development of techniques and equipment used in the sport of kitesurfing. +={Free software;Kitesurfing;Open source software:innovation communities and} + +!_ User Innovation Is Widely Distributed +={Users:innovation and+8;Innovation:distributed process of+8} + +When users' needs are heterogeneous and when the information drawn on by innovators is sticky, it is likely that product-development activities will be widely distributed among users, rather than produced by just a few prolific user-innovators. It should also be the case that different users will tend to develop different innovations. As was shown in chapter 5, individual users and user firms tend to develop innovations that serve their particular needs, and that fall within their individual "low-cost innovation niches." For example, a mountain biker who specializes in jumping from high platforms and who is also an orthopedic surgeon will tend to develop innovations that draw on both of these types of information: he might create a seat suspension that reduces shock to bikers' spines upon landing from a jump. Another mountain biker specializing in the same activity but with a different background---say aeronautical engineering---is likely to draw on this different information to come up with a different innovation. From the perspective of Fleming (2001), who has studied innovations as consisting of novel combinations of pre-existing elements, such innovators are using their membership in two distinct communities to combine previously disparate elements. Baldwin and Clark (2003) and Henkel (2004a) explore this type of situation in theoretical terms. +={Baldwin, C.;Clark, K.;Fleming, L.;Henkel, J.;User need;Custom products:heterogeneity of user needs and+3;Sticky information:innovation and+3;Users:low-cost innovation niches of+3;Scientific instruments;Sporting equipment:innovation communities and;Mountain biking;Local information+1;Users:innovate-or-buy decisions by} + +The underlying logic echoes that offered by Eric Raymond regarding "Linus's Law" in software debugging. In software, discovering and repairing subtle code errors or bugs can be very costly (Brooks 1979). However, Raymond argued, the same task can be greatly reduced in cost and also made faster and more effective when it is opened up to a large community of software users that each may have the information needed to identify and fix some bugs. Under these conditions, Raymond says, "given a large enough beta tester and co-developer base, almost every problem will be characterized quickly and the fix obvious to someone. Or, less formally, `given enough eyeballs, all bugs are shallow."' He explains: "More users find more bugs because adding more users adds more ways of stressing the program. . . . Each [user] approaches the task of bug characterization with a slightly different perceptual set and analytical toolkit, a different angle on the problem. So adding more beta-testers . . . increases the probability that someone's toolkit will be matched to the problem in such a way that the bug is shallow to /{that person}/." (1999, pp. 41--44) +={Brooks, F.;Raymond, E.;Free software;Open source software:innovation communities and;Innovation communities:and sources of innovation+2} + +The analogy to distributed user innovation is, of course, that each user has a different set of innovation-related needs and other assets in place which makes a particular type of innovation low-cost ("shallow") to /{that user}/. The assets of /{some}/ user will then generally be found to be a just-right fit to many innovation development problems. (Note that this argument does not mean that /{all}/ innovations will be cheaply done by users, or even done by users at all. In essence, users will find it cheaper to innovate when manufacturers' economies of scale with respect to product development are more than offset by the greater scope of innovation assets held by the collectivity of individual users.) + +Available data support these expectations. In chapter 2 we saw evidence that users tended to develop very different innovations. To test whether commercially important innovations are developed by just a few users or by many, I turn to studies documenting the functional sources of important innovations later commercialized. As is evident in table 7.1, most of the important innovations attributed to users in these studies were done by /{different}/ users. In other words, user innovation does tend to be widely distributed in a world characterized by users with heterogeneous needs and heterogeneous stocks of sticky information. +={Innovation:functional sources of} + +!_ Table 7.1 +User innovation is widely distributed, with few users developing more than one major innovation. NA: data not available. +={Riggs, W.;Shah, S.;von Hippel, E.;Scientific instruments;Sporting equipment:innovation communities and} + +Number of users developing this number of major innovations + +table{~h c7; 30; 10; 10; 10; 10; 10; 20; + +~ +1 +2 +3 +6 +NA +Sample (n) + +Scientific Instruments^{a}^ +28 +0 +1 +0 +1 +32 + +Scientific Instruments^{b}^ +20 +1 +0 +1 +0 +28 + +Process equipment^{c}^ +19 +1 +0 +0 +8 +29 + +Sports equipment^{d}^ +7 +0 +0 +0 +0 +7 + +}table + +a. Source: von Hippel 1988, appendix: GC, TEM, NMR Innovations.<:br> +b. Source: Riggs and von Hippel, Esca and AES.<:br> +c. Source: von Hippel 1988, appendix: Semiconductor and pultrusion process equipment innovations.<:br> +d. Source: Shah 2000, appendix A: skateboarding, snowboarding, and windsurfing innovations. + +!_ Innovation Communities +={Innovation communities:and sources of innovation} + +User-innovators may be generally willing to freely reveal their information. However, as we have seen, they may be widely distributed and each may have only one or a few innovations to offer. The practical value of the "freely revealed innovation commons" these users collectively offer will be increased if their information is somehow made conveniently accessible. This is one of the important functions of "innovation communities." +={Information commons+3} + +I define "innovation communities" as meaning nodes consisting of individuals or firms interconnected by information transfer links which may involve face-to-face, electronic, or other communication. These can, but need not, exist within the boundaries of a membership group. They often do, but need not, incorporate the qualities of communities for participants, where "communities" is defined as meaning"networks of interpersonal ties that provide sociability, support, information, a sense of belonging, and social identity" (Wellman et al. 2002, p. 4).~{ When they do not incorporate these qualities, they would be more properly referred to as networks---but communities is the term commonly used, and I follow that practice here. }~ +={Wellman, B.} + +Innovation communities can have users and/or manufacturers as members and contributors. They can flourish when at least some innovate and voluntarily reveal their innovations, and when others find the information revealed to be of interest. In previous chapters, we saw that these conditions do commonly exist with respect to user-developed innovations: users innovate in many fields, users often freely reveal, and the information revealed is often used by manufacturers to create commercial products---a clear indication many users, too, find this information of interest. + +Innovation communities are often specialized, serving as collection points and repositories for information related to narrow categories of innovations. They may consist only of information repositories or directories in the form of physical or virtual publications. For example, userinnovation.mit.edu is a specialized website where researchers can post articles on their findings and ideas related to innovation by users. Contributors and non-contributors can freely access and browse the site as a convenient way to find such information. + +Innovation communities also can offer additional important functions to participants. Chat rooms and email lists with public postings can be provided so that contributors can exchange ideas and provide mutual assistance. Tools to help users develop, evaluate, and integrate their work can also be provided to community members---and such tools are often developed by community members themselves. + +All the community functionality just mentioned and more is visible in communities that develop free and open source software programs. The emergence of this particular type of innovation community has also done a great deal to bring the general phenomenon to academic and public notice, and so I will describe them in some detail. I first discuss the history and nature of free and open source software itself (the product). Next I outline key characteristics of the free and open source software development projects typically used to create and maintain such software (the community-based development process). +={Free software+10;Innovation communities:open source software and+22;Open source software:innovation communities and+22} + +!_ Open Source Software +={Open source software:innovation and+21} + +In the early days of computer programming, commercial "packaged" software was a rarity---if you wanted a particular program for a particular purpose, you typically wrote the code yourself or hired someone to write it for you. Much of the software of the 1960s and the 1970s was developed in academic and corporate laboratories by scientists and engineers. These individuals found it a normal part of their research culture to freely give and exchange software they had written, to modify and build on one another's software, and to freely share their modifications. This communal behavior became a central feature of "hacker culture." (In communities of open source programmers, "hacker" is a positive term that is applied to talented and dedicated programmers.~{ !{hacker}! n. [originally, someone who makes furniture with an axe] 1. A person who enjoys exploring the details of programmable systems and how to stretch their capabilities, as opposed to most users, who prefer to learn only the minimum necessary. 2. One who programs enthusiastically (even obsessively) or who enjoys programming rather than just theorizing about programming. 3. A person capable of appreciating !{hack value}!. 4. A person who is good at programming quickly. . . . 8. [deprecated] A malicious meddler who tries to discover sensitive information by poking around. Hence /{password hacker}/, /{network hacker}/. The correct term for this sense is !{cracker}! (Raymond 1996). }~ ) +={Hackers+4;Raymond, E.} + +In 1969, the Defense Advanced Research Projects Agency, a part of the US Department of Defense, established the ARPANET, the first transcontinental high-speed computer network. This network eventually grew to link hundreds of universities, defense contractors, and research laboratories. Later succeeded by the Internet, it also allowed hackers to exchange software code and other information widely, easily, and cheaply---and also enabled them to spread hacker norms of behavior. + +The communal hacker culture was very strongly present among a group of programmers---software hackers---housed at MIT's Artificial Intelligence Laboratory in the 1960s and the 1970s (Levy 1984). In the 1980s this group received a major jolt when MIT licensed some of the code created by its hacker employees to a commercial firm. This firm, in accordance with normal commercial practice, then promptly restricted access to the "source code"~{ Source code is a sequence of instructions to be executed by a computer to accomplish a program's purpose. Programmers write computer software in the form of source code, and also document that source code with brief written explanations of the purpose and design of each section of their program. To convert a program into a form that can actually operate a computer, source code is translated into machine code using a software tool called a compiler. The compiling process removes program documentation and creates a binary version of the program---a sequence of computer instructions consisting only of strings of ones and zeros. Binary code is very difficult for programmers to read and interpret. Therefore, programmers or firms that wish to prevent others from understanding and modifying their code will release only binary versions of the software. In contrast, programmers or firms that wish to enable others to understand and update and modify their software will provide them with its source code. (Moerke 2000, Simon 1996). }~ of that software, and so prevented non-company personnel---including the MIT hackers who had been instrumental in developing it---from continuing to use it as a platform for further learning and development. +={Levy, S.;MIT Artificial Intelligence Laboratory+1;Innovation communities:open source software and;Open source software:innovation communities and} + +Richard Stallman, a brilliant programmer in MIT's Artificial Intelligence Laboratory, was especially distressed by the loss of access to communally developed source code. He also was offended by a general trend in the software world toward development of proprietary software packages and the release of software in forms that could not be studied or modified by others. Stallman viewed these practices as morally wrong impingements on the rights of software users to freely learn and create. In 1985, in response, he founded the Free Software Foundation and set about to develop and diffuse a legal mechanism that could preserve free access for all to the software developed by software hackers. Stallman's pioneering idea was to use the existing mechanism of copyright law to this end. Software authors interested in preserving the status of their software as "free" software could use their own copyright to grant licenses on terms that would guarantee a number of rights to all future users. They could do this by simply affixing a standard license to their software that conveyed these rights. The basic license developed by Stallman to implement this seminal idea was the General Public License or GPL (sometimes referred to as copyleft, in a play on the word "copyright"). Basic rights transferred to those possessing a copy of free software include the right to use it at no cost, the right to study its source code, the right to modify it, and the right to distribute modified or unmodified versions to others at no cost. Licenses conveying similar rights were developed by others, and a number of such licenses are currently used in the open source field. Free and open source software licenses do not grant users the full rights associated with free revealing as that term was defined earlier. Those who obtain the software under a license such as the GPL are restricted from certain practices. For example, they cannot incorporate GPL software into proprietary software that they then sell.~{ See www.gnu.org/licenses/licenses.html#GPL }~ Indeed, contributors of code to open source software projects are very concerned with enforcing such restrictions in order to ensure that their code remains accessible to all (O'Mahony 2003). +={Stallman, R.+2;Intellectual property rights:copyrights and|licensing of+1} + +The idea of free software did not immediately become mainstream, and industry was especially suspicious of it. In 1998, Bruce Perens and Eric Raymond agreed that a significant part of the problem resided in Stallman's term "free" software, which might understandably have an ominous ring to the ears of businesspeople. Accordingly, they, along with other prominent hackers, founded the open source software movement (Perens 1999). Open source software uses the licensing practices pioneered by the free software movement. It differs from that movement primarily on philosophical grounds, preferring to emphasize the practical benefits of its licensing practices over issues regarding the moral importance of granting users the freedoms offered by both free and open source software. The term "open source" is now generally used by both practitioners and scholars to refer to free or open source software, and that is the term I use in this book. +={Perens, B.;Raymond, E.} + +Open source software has emerged as a major cultural and economic phenomenon. The number of open source software projects has been growing rapidly. In mid 2004, a single major infrastructure provider and repository for open source software projects, Sourceforge.net,~{ http://www.sourceforge.net }~ hosted 83,000 projects and had more than 870,000 registered users. A significant amount of software developed by commercial firms is also being released under open source licenses. + +!_ Open Source Software Development Projects + +Software can be termed "open source" independent of how or by whom it has been developed: the term denotes only the type of license under which it is made available. However, the fact that open source software is freely accessible to all has created some typical open source software development practices that differ greatly from commercial software development models---and that look very much like the "hacker culture" behaviors described above. +={Hackers+1} + +Because commercial software vendors typically wish to sell the code they develop, they sharply restrict access to the source code of their software products to firm employees and contractors. The consequence of this restriction is that only insiders have the information required to modify and improve that proprietary code further (Meyer and Lopez 1995; Young, Smith, and Grimm 1996; Conner and Prahalad 1996). In sharp contrast, all are offered free access to the source code of open source software if that code is distributed by its authors. In early hacker days, this freedom to learn and use and modify software was exercised by informal sharing and co-development of code---often by the physical sharing and exchange of computer tapes and disks on which the code was recorded. In current Internet days, rapid technological advances in computer hardware and software and networking technologies have made it much easier to create and sustain a communal development style on ever-larger scales. Also, implementing new projects is becoming progressively easier as effective project design becomes better understood, and as prepackaged infrastructural support for such projects becomes available on the Web. +={Conner, K.;Grimm, C.;Meyer, M.;Lopez, L.;Prahalad, C.;Smith, G.;Young, G.} + +Today, an open source software development project is typically initiated by an individual or a small group seeking a solution to an individual's or a firm's need. Raymond (1999, p. 32) suggests that "every good work of software starts by scratching a developer's personal itch" and that "too often software developers spend their days grinding away for pay at programs they neither need nor love. But not in the (open source) world. . . ." A project's initiators also generally become the project's "owners" or "maintainers" who take on responsibility for project management.~{ "The owner(s) [or `maintainers'] of an open source software project are those who have the exclusive right, recognized by the community at large, to redistribute modified versions. . . . According to standard open source licenses, all parties are equal in the evolutionary game. But in practice there is a very well-recognized distinction between `official' patches [changes to the software], approved and integrated into the evolving software by the publicly recognized maintainers, and `rogue' patches by third parties. Rogue patches are unusual and generally not trusted." (Raymond 1999, p. 89) }~ Early on, this individual or group generally develops a first, rough version of the code that outlines the functionality envisioned. The source code for this initial version is then made freely available to all via downloading from an Internet website established by the project. The project founders also set up infrastructure for the project that those interested in using or further developing the code can use to seek help, provide information or provide new open source code for others to discuss and test. In the case of projects that are successful in attracting interest, others do download and use and "play with" the code---and some of these do go on to create new and modified code. Most then post what they have done on the project website for use and critique by any who are interested. New and modified code that is deemed to be of sufficient quality and of general interest by the project maintainers is then added to the authorized version of the code. In many projects the privilege of adding to the authorized code is restricted to only a few trusted developers. These few then serve as gatekeepers for code written by contributors who do not have such access (von Krogh and Spaeth 2002). +={Spaeth, S.;von Krogh, G.;Raymond, E.} + +Critical tools and infrastructure available to open source software project participants includes email lists for specialized purposes that are open to all. Thus, there is a list where code users can report software failures ("bugs") that they encounter during field use of the software. There is also a list where those developing the code can share ideas about what would be good next steps for the project, good features to add, etc. All of these lists are open to all and are also publicly archived, so anyone can go back and learn what opinions were and are on a particular topic. Also, programmers contributing to open source software projects tend to have essential tools, such as specific software languages, in common. These are generally not specific to a single project, but are available on the web. Basic toolkits held in common by all contributors tends to greatly ease interactions. Also, open source software projects have version-control software that allows contributors to insert new code contributions into the existing project code base and test them to see if the new code causes malfunctions in existing code. If so, the tool allows easy reversion to the status quo ante. This makes "try it and see" testing much more practical, because much less is at risk if a new contribution inadvertently breaks the code. Toolkits used in open source projects have been evolved through practice and are steadily being improved by user-innovators. Individual projects can now start up using standard infrastructure sets offered by sites such as Sourceforge.net. +={Toolkits:open source software and} + +Two brief case histories will help to further convey the flavor of open source software development. + +!_ Apache Web Server Software +={Apache web server software+3;Innovation communities:Apache web server software and+3} + +Apache web server software is used on web server computers that host web pages and provide appropriate content as requested by Internet browsers. Such 7 computers are a key element of the Internet-based World Wide Web infrastructure. + +The web server software that evolved into Apache was developed by University of Illinois undergraduate Rob McCool for, and while working at, the National Center for Supercomputing Applications (NCSA). The source code as developed and periodically modified by McCool was posted on the web so that users at other sites could download it, use it, modify it, and develop it further. When McCool departed NCSA in mid 1994, a small group of webmasters who had adopted his web server software for their own sites decided to take on the task of continued development. A core group of eight users gathered all documentation and bug fixes and issued a consolidated patch. This "patchy" web server software evolved over time into Apache. Extensive user feedback and modification yielded Apache 1.0, released on December 1, 1995. +={McCool, Rob} + +In 4 years, after many modifications and improvements contributed by many users, Apache became the most popular web server software on the Internet, garnering many industry awards for excellence. Despite strong competition from commercial software developers such as Microsoft and Netscape, it is currently used by over 60 percent of the world's millions of websites. Modification and updating of Apache by users and others continues, with the release of new versions being coordinated by a central group of 22 volunteers. +={Microsoft} + +!_ Fetchmail---An Internet Email Utility Program +={Fetchmail+4;Innovation communities:fetchmail and+4} + +Fetchmail is an Internet email utility program that "fetches" email from central servers to a local computer. The open source project to develop, maintain, and improve this program was led by Eric Raymond (1999). +={Raymond, E.+3} + +Raymond first began to puzzle about the email delivery problem in 1993 because he was personally dissatisfied with then-existing solutions. "What I wanted," Raymond recalled (1999, p. 31), "was for my mail to be delivered on snark, my home system, so that I would be notified when it arrived and could handle it using all my local tools." Raymond decided to try and develop a better solution. He began by searching databases in the open source world for an existing, well-coded utility that he could use as a development base. He knew it would be efficient to build on others' related work if possible, and in the world of open source software (then generally called free software) this practice is understood and valued. Raymond explored several candidate open source programs, and settled on one in small-scale use called "popclient." He developed a number of improvements to the program and proposed them to the then maintainer of popclient. It turned out that this individual had lost interest in working further on the program, and so his response to Raymond's suggestions was to offer his role to Raymond so that he could evolve the popclient further as he chose. + +Raymond accepted the role of popclient's maintainer, and over the next months he improved the program significantly in conjunction with advice and suggestions from other users. He carefully cultivated his more active beta list of popclient users by regularly communicating with them via messages posted on an public electronic bulletin board set up for that purpose. Many responded by volunteering information on bugs they had found and perhaps fixed, and by offering improvements they had developed for their own use. The quality of these suggestions was often high because "contributions are received not from a random sample, but from people who are interested enough to use the software, learn about how it works, attempt to find solutions to the problems they encounter, and actually produce an apparently reasonable fix. Anyone who passes all these filters is highly likely to have something useful to contribute." (ibid., p. 42) + +Eventually, Raymond arrived at an innovative design that he knew worked well because he and his beta list of co-developers had used it, tested it and improved it every day. Popclient (now renamed fetchmail) became standard software used by millions users. Raymond continues to lead the group of volunteers that maintain and improve the software as new user needs and conditions dictate. + +!_ Development of Physical Products by Innovation Communities +={Innovation communities:physical products and+14} + +User innovation communities are by no means restricted to the development of information products like software. They also are active in the development of physical products, and in very similar ways. Just as in the case of communities devoted to information product, communities devoted to physical products can range from simple information exchange sites to sites well furnished with tools and infrastructure. Within sports, Franke and Shah's study illustrates relatively simple community infrastructure. Thus, the boardercross community they studied consisted of semi-professional athletes from all over the world who meet in up to 10 competitions a year in Europe, North America, and Japan. Franke and Shah report that community members knew one another well, and spent a considerable amount of time together. They also assisted one another in developing and modifying equipment for their sport. However, the community had no specialized sets of tools to support joint innovation development. +={Franke, N.;Shah, S.;Innovation communities:sporting equipment and+2} + +More complex communities devoted to the development of physical products often look similar to open source software development communities in terms of tools and infrastructure. As an example, consider the recent formation of a community dedicated to the development and diffusion of information regarding novel kitesurfing equipment. Kitesurfing is a water sport in which the user stands on a special board, somewhat like a surfboard, and is pulled along by holding onto a large, steerable kite. Equipment and technique have evolved to the point that kites can be guided both with and against the wind by a skilled kitesurfer, and can lift rider and board many meters into the air for tens of seconds at a time. +={Innovation communities:kitesurfing and+1;Kitesurfing+1} + +Designing kites for kitesurfing is a sophisticated undertaking, involving low-speed aerodynamical considerations that are not yet well understood. Early kites for kitesurfing were developed and built by user-enthusiasts who were inventing both kitesurfing techniques and kitesurfing equipment interdependently. In about 2001, Saul Griffith, an MIT PhD student with a long-time interest in kitesurfing and kite development, decided that kite-surfing would benefit from better online community interaction. Accordingly, he created a site for the worldwide community of user-innovators in kitesurfing (www.zeroprestige.com). Griffith began by posting patterns for kites he had designed on the site and added helpful hints and tools for kite construction and use. Others were invited to download this information for free and to contribute their own if they wished. Soon other innovators started to post their own kite designs, improved construction advice for novices, and sophisticated design tools such as aerodynamics modeling software and rapid prototyping software. Some kitesurfers contributing innovations to the site had top-level technical skills; at least one was a skilled aerodynamicist employed by an aerospace firm. +={Griffith, S.;Zeroprestige.com} + +Note that physical products are information products during the design stage. In earlier days, information about an evolving design was encoded on large sheets of paper, called blueprints, that could be copied and shared. The information on blueprints could be understood and assessed by fellow designers, and could also be used by machinists to create the actual physical products represented. Today, designs for new products are commonly encoded in computer-aided design (CAD) files. These files can be created and seen as two-dimensional and three-dimensional renderings by designers. The designs they contain can also be subjected to automated analysis by various engineering tools to determine, for example, whether they can stand up to stresses to which they will be subjected. CAD files can then be downloaded to computer-controlled fabrication machinery that will actually build the component parts of the design. + +The example of the kitesurfing group's methods of sharing design information illustrates the close relationship between information and physical products. Initially, users in the group exchanged design ideas by means of simple sketches transferred over the Internet. Then group members learned that computerized cutters used by sail lofts to cut sails from large pieces of cloth are suited to cutting cloth for surfing kites. They also learned that sail lofts were interested in their business. Accordingly, innovation group members began to exchange designs in the form of CAD files compatible with sail lofts' cutting equipment. When a user was satisfied with a design, he would transmit the CAD file to a local sail loft for cutting. The pieces were then sewn together by the user or sent to a sewing facility for assembly. The total time required to convert an information product into a physical one was less than a week, and the total cost of a finished kite made in this way was a few hundred dollars---much less than the price of a commercial kite. +={Innovation communities:kitesurfing and;Kitesurfing} + +!_ User-to-User Assistance +={Innovation communities:user-to-user assistance and+9;Users:innovation communities and+9} + +Clearly, user innovation communities can offer sophisticated support to individual innovators in the form of tools. Users in these innovation communities also tend to behave in a collaborative manner. That is, users not only distribute and evaluate completed innovations; they also volunteer other important services, such as assisting one another in developing and applying innovations. + +Franke and Shah (2003) studied the frequency with which users in four sporting communities assisted one another with innovations, and found that such assistance was very common (table 7.2). They also found that those who assisted were significantly more likely to be innovators themselves (table 7.3). The level of satisfaction reported by those assisted was very high. Seventy-nine percent agreed strongly with the statement "If I had a similar problem I would ask the same people again." Jeppesen (2005) similarly found extensive user-to-user help being volunteered in the field of computer gaming. +={Franke, N.;Jeppesen, L.;Shah, S.;Innovation communities:sporting equipment and;Sporting equipment:innovation communities and+7|user-to-user assistance and+7} + +!_ Table 7.2 +Number of people from whom innovators received assistance. +={Franke, N.;Shah, S.} + +table{~h c3; 34; 33; 33; + +Number of people +Number of cases +Percentage + +0 +0 +0 + +1 +3 +6 + +2 +14 +26 + +3--5 +25 +47 + +6--10 +8 +15 + +> 10 +3 +6 + +Total +53 +100 + +}table + +Source: Franke and Shah 2003, table 4. + +!_ Table 7.3 +Innovators tended to be the ones assisting others with their innovations (p < 0.0001). +={Franke, N.;Shah, S.} + +table{~h c4; 40; 20; 20; 20; + +~ +Innovators +Non-innovators +Total + +Gave assistance +28 +13 +41 + +Did not give assistance +32 +115 +147 + +Total +60 +128 +~ + +}table + +Source: Franke and Shah 2003, table 7. + +Such helping activity is clearly important to the value contributed by innovation communities to community participants. Why people might voluntarily offer assistance is a subject of analysis. The answers are not fully in, but the mysteries lessen as the research progresses. An answer that appears to be emerging is that there are private benefits to assistance providers, just as there are for those who freely reveal innovations (Lakhani and von Hippel 2003). In other words, provision of free assistance may be explicable in terms of the private-collective model of innovation-related incentives discussed earlier. +={Lakhani, K.;Free revealing of innovation information:in information communities|private-collective model for;Private-collective model;Social welfare:private-collective model and} + +1~ 8 Adapting Policy to User Innovation +={Government policy+44:user innovation and+19;Innovation:and government policy+44;Manufacturers:innovation and+44;Users:government policy and+44|innovation and+44} + +Government policy makers generally wish to encourage activities that increase social welfare, and to discourage activities that reduce it. Therefore, it is important to ask about the social welfare effects of innovation by users. Henkel and von Hippel (2005) explored this matter and concluded that social welfare is likely to be higher in a world in which both users and manufacturers innovate than in a world in which only manufacturers innovate. +={Henkel, J.;Government policy:manufacturer innovation and+1;Manufacturers:government policy and+1;Government policy:social welfare and+21;Social welfare: government policy+4;Users:social welfare and+4} + +In this chapter, I first explain that innovation by users complements manufacturer innovation and can also be a source of success-enhancing new product ideas for manufacturers. Next, I note that innovation by users does not exhibit several welfare-reducing effects associated with innovation by manufacturers. Finally, I evaluate the effects of public policies on user innovation, and suggest modifications to those that---typically unintentionally---discriminate against innovation by users. + +!_ Social Welfare Effects of User Innovation + +Social welfare functions are used in welfare economics to provide a measure of the material welfare of society, using economic variables as inputs. A social welfare function can be designed to express many social goals, ranging from population life expectancies to income distributions. Much of the literature on product diversity, innovation, and social welfare evaluates the impact of economic phenomena and policy on social welfare from the perspective of total income of a society without regard to how that income is distributed. We will take that viewpoint here. + +!_ User Innovation Improves Manufacturers' Success Rates +={Government policy:manufacturer innovation and+5;Manufacturers:government policy and+5} + +It is striking that most new products developed and introduced to the market by manufacturers are commercial failures. Mansfield and Wagner (1975) found the overall probability of success for new industrial products to be only 27 percent. Elrod and Kelman (1987) found an overall probability of success of 26 percent for consumer products. Balachandra and Friar (1997), Poolton and Barclay (1998), and Redmond (1995) found similarly high failure rates in new products commercialized. Although there clearly is some recycling of knowledge from failed projects to successful ones, much of the investment in product development is highly specific. This high failure rate therefore represents a huge inefficiency in the conversion of R&D investment to useful output, and a corresponding reduction in social welfare. +={Balachandra, R;Barclay, I.;Elrod, T.;Kelman, A.;Friar, J.;Mansfield, E.+1;Poolton, J.;Redmond, W.;Wagner, S.+1} + +% Robertson, A., 108 + +Research indicates that the major reason for the commercial failure of manufacturer-developed products is poor understanding of users' needs by manufacturer-innovators. The landmark SAPPHO study showed this in a very clear and convincing way. This study was based on a sample of 31 product pairs. Members of each pair were selected to address the same function and market. (For example, one pair consisted of two "roundness meters," each developed by a separate company.) One member of each pair was a commercial success (which showed that there was a market for the product type); the other was a commercial failure. The development process for each successful and failing product was then studied in detail. The primary factor found to distinguish success from failure was that a deeper understanding of the market and the need was associated with successful projects (Achilladelis et al. 1971; Rothwell et al. 1974). A study by Mansfield and Wagner (1975) came to the same conclusion. More recent studies of information stickiness and the resulting asymmetries of information held by users and manufacturers, discussed in chapter 3, support the reasonableness of this general finding. Users are the generators of information regarding their needs. The decline in accuracy and completeness of need information after transfer from user to manufacturer is likely to be substantial because important elements of this information are likely to be sticky (von Hippel 1994; Ogawa 1998). +={Achilladelis, B.;Ogawa, S.;Rothwell, R.;Project SAPPHO;SAPPHO study;Sticky information:innovation and} + +Innovations developed by users can improve manufacturers' information on users' needs and so improve their new product introduction success rates. Recall from previous chapters that innovation by users is concentrated among lead users. These lead users tend, as we have seen, to develop functionally novel products and product modifications addressing their own needs at the leading edge of markets where potential sales are both small and uncertain. Manufacturers, in contrast, have poorer information on users' needs and use contexts, and will prefer to manufacture innovations for larger, more certain markets. In the short term, therefore, user innovations will tend to /{complement}/ rather than substitute for products developed by manufacturers. In the longer term, the market as a whole catches up to the needs that motivated the lead user developments, and manufacturers will begin to find production of similar innovations to be commercially attractive. At that point, innovations by lead users can provide very useful information to manufacturers that they would not otherwise have. + +As lead users develop and test their solutions in their own use environments, they learn more about the real nature of their needs. They then often freely reveal information about their innovations. Other users then may adopt the innovations, comment on them, modify and improve them, and freely reveal what they have done in turn. All of this freely revealed activity by lead users offers manufacturers a great deal of useful information about both needs embodied in solutions and about markets. Given access to a user-developed prototype, manufacturers no longer need to understand users' needs very accurately and richly. Instead they have the much easier task of replicating the function of user prototypes that users have already demonstrated are responsive to their needs. For example, a manufacturer seeking to commercialize a new type of surgical equipment and coming upon prototype equipment developed by surgeons need not understand precisely why the innovators want this product or even precisely how it is used; the manufacturer need only understand that many surgeons appear willing to pay for it and then reproduce the important features of the user-developed prototypes in a commercial product. +={Free revealing of innovation information:lead users and+35|users and;Surgical equipment} + +Observation of innovation by lead users and adoption by follow-on users also can give manufacturers a better understanding of the size of the potential market. Projections of product sales have been shown to be much more accurate when they are based on actual customer behavior than when they are based on potential buyers' pre-use expectations. Monitoring of field use of user-built prototypes and of their adoption by other users can give manufacturers rich data on precisely these matters and so should improve manufacturer's commercial success. In net, user innovation helps to reduce information asymmetries between users and manufacturers and so increases the efficiency of the innovation process. +={Information asymmetries;Users:information asymmetries of} + +!_ User Innovation and Provisioning Biases + +The economic literature on the impact of innovation on social welfare generally seeks to understand effects that might induce society to create too many product variations (overprovisioning) or too few (underprovisioning) from the viewpoint of net social economic income (Chamberlin 1950). Greater variety of products available for purchase is assumed to be desirable, in that it enables consumers to get more precisely what they want and/or to own a more diverse array of products. However, increased product diversity comes at a cost: smaller quantities of each product will be produced on average. This in turn means that development-related and production-related economies of scale are likely to be less. The basic tradeoff between variety and cost is what creates the possibility of overprovisioning or underprovisioning product variety. Innovations such as flexible manufacturing may reduce fixed costs associated with increased diversity and so shift the optimal degree of diversity upward. Nonetheless, the conflict still persists. +={Chamberlin, E.;Social welfare:innovation and+11} + +Henkel and I studied the welfare impact of adding users as a source of innovation to existing analyses of product diversity, innovation, and social welfare. Existing models uniformly contained the assumption that new products and services were supplied to the economy by manufacturers only. We found that the addition of innovation by users to these analyses largely avoids the welfare-reducing biases that had been identified. For example, consider "business stealing" (Spence 1976). This term refers to the fact that commercial manufacturers benefit by diverting business from their competitors. Since they do not take this negative externality into account, their private gain from introducing new products exceeds society's total gain, tilting the balance toward overprovision of variety. In contrast, a freely revealed user innovation may also reduce incumbents' business, but not to the innovator's benefit. Hence, innovation incentives are not socially excessive. +={Henkel, J.;Spence, M.;Free revealing of innovation information:intellectual property rights and+11|social welfare and+5;Government policy:free revealing and+10;Government policy:provisioning biases and;Intellectual property rights:free revealing and+11;Users:social welfare and+5} + +Freely revealed innovations by users are also likely to reduce deadweight loss caused by pricing of products above their marginal costs. (Deadweight loss is a reduction in social welfare that occurs when goods are sold at a price above their marginal cost of production.) When users make information about their innovations available for free, and if the marginal cost of revealing that information is zero, an imitator only has to bear the cost of adoption. This is statically efficient. The availability of free user innovations can also induce sellers of competing commercial offerings to reduce their prices, thus indirectly leading to another reduction in dead-weight loss. + +Reducing prices toward marginal costs can also reduce incentives to over-provision variety (Tirole 1988). +={Tirole, J.} + +Henkel and I also explored a few special situations where social welfare might be /{reduced}/ by the availability of freely revealed user innovations. One of these was the effect of reduced pricing power on manufacturers that create "platform" products. Often, a manufacturer of such a product will want to sell the platform---a razor, an ink-jet printer, a video-game player---at a low margin or a loss, and then price necessary add-ons (razor blades, ink cartridges, video games) at a much higher margin. If the possibility of freely revealed add-ons developed by users makes development of a platform unprofitable for a manufacturer, social welfare can thereby be reduced. However, it is only the razor-vs.-blade pricing scheme that may become unprofitable. Indeed, if the manufacturer makes positive margins on the platform, then the availability of user-developed add-ons can have a positive effect: it can increase the value of the platform to users, and so allow manufacturers to charge higher margins on it and/or sell more units. Jeppesen (2004) finds that this is in fact the outcome when users introduce free game modifications (called mods) operating on proprietary game software platform products (called engines) sold by game manufacturers. Even though the game manufacturers also sell mods commercially that compete with free user mods, many provide active support for the development and diffusion of user mods built on their proprietary game engines, because they find that the net result is increased sales and profits. +={Henkel, J.;Jeppesen, L.;Government policy:intellectual property rights and|trade secrets and;Intellectual property rights:trade secrets and} + +!_ Public Policy Choices + +If innovation by users is welfare enhancing and is also significant in amount and value, then it makes sense to consider the effects of public policy on user innovation. An important first step would be to collect better data. Currently, much innovation by users---which may in aggregate turn out to be a very large fraction of total economic investment in innovation--- goes uncounted or undercounted. Thus, innovation effort that is volunteered by users, as is the case with many contributions to open source software, is currently not recorded by governmental statistical offices. This is also the case for user innovation that is integrated with product and service production. For example, much process innovation by manufacturers occurs on the factory floor as they produce goods and simultaneously learn how to improve their production processes. Similarly, many important innovations developed by surgeons are woven into learning by doing as they deliver services to patients. +={Open source software:innovation communities and} + +Next, it will be important to review innovation-related public policies to identify and correct biases with respect to sources of innovation. On a level playing field, users will become a steadily more important source of innovation, and will increasingly substitute for or complement manufacturers' innovation-related activities. Transitions required of policy making to support this ongoing evolution are important but far from painless. To illustrate, we next review issues related to the protection intellectual property, related to policies restricting product modifications, related to source-biased subsidies for R&D, and related to control over innovation diffusion channels. +={Government policy:provisioning biases and|intellectual property rights and+16|patents and+8;Intellectual property rights:patents and+8} + +!_ Intellectual Property + +Earlier, when we explored why users might freely reveal their innovations, we concluded that it was often their best /{practical}/ choice in view of how intellectual property law actually functions (or, often, does not function) to protect innovations today. For example, recall from chapter 6 that most innovators do not judge patents to be very effective, and that the availability of patent grant protection does not appear to increase innovation investments in most fields. Recall also that patent protection is costly to obtain, and thus of little value to developers of minor innovations---with most innovations being minor. We also saw that in practice it was often difficult for innovators to protect their innovations via trade secrecy: it is hard to keep a secret when many others know similar things, and when some of these information holders will lose little or nothing from freely revealing what they know. +={Intellectual property rights:trade secrets and;Government policy:trade secrets and;Intellectual property rights:trade secrets and} + +These findings show that the characteristics of present-day intellectual property regimes as actually experienced by innovators are far from the expectations of theorists and policy makers. The fundamental reason that societies elect to grant intellectual property rights to innovators is to increase private investment in innovation. At the same time, economists have long known that there will be social welfare losses associated with these grants: owners of intellectual property will generally restrict the use of their legally protected information in order to increase private profits. In other words, intellectual property rights are thought to be good for innovation and bad for competition. The consensus view has long been that the good outweighs the bad, but Foray (2004) explains that this consensus is now breaking down. Some---not all---are beginning to think that intellectual property rights are bad for innovation too in many cases. +={oray, D.;Government policy:intellectual commons and+13} + +The need to grant private intellectual property rights to achieve socially desirable levels of innovation is being questioned in the light of apparent counterexamples. Thus, as we saw earlier, open source software communities do not allow contributing innovators to use their intellectual property rights to control the use of their code. Instead, contributors use their authors' copyright to assign their code to a common pool to which all--- contributors and non-contributors alike---are granted equal access. Despite this regime, innovation seems to be flourishing. Why? As we saw in our earlier discussions of why innovators might freely reveal their innovations, researchers now understand that significant private rewards to innovation can exist independent of intellectual property rights grants. As a general principle, intellectual property rights grants should not be offered if and when developers would seek protection but would innovate without it. +={Intellectual property rights:copyrights and;Open source software:innovation communities and+1;Innovation:open source software and+1} + +The debate rages. Gallini and Scotchmer (2002) assert that "intellectual property is the foundation of the modern information economy" and that "it fuels the software, lifesciences and computer industries, and pervades most other products we consume." They also conclude that the positive or negative effect of intellectual property rights on innovation depends centrally on "the ease with which innovators can enter into agreements for rearranging and exercising those rights." This is precisely the rub from the point of view of those who urge that present intellectual property regimes be reconsidered: it is becoming increasingly clear that in practice rearranging and exercising intellectual property rights is often difficult rather than easy. It is also becoming clear that the protections afforded by existing intellectual property law can be strategically deployed to achieve private advantage at the expense of general innovative progress (Foray 2004). +={oray, D.;Gallini, N.;Scotchmer, S.} + +Consider an effect first pointed out by Merges and Nelson (1990) and further explored as the "tragedy of the anticommons" by Heller (1998) and Heller and Eisenberg (1998). A resource such as innovation-related information is prone to underuse---a tragedy of the anticommons---when multiple owners each have a right to exclude others and no one has an effective privilege of use. The nature of the patent grant can lead to precisely this type of situation. Patent law is so arranged that an owner of a patent is not granted the right to practice its invention---it is only granted the right to exclude others from practicing it. For example, suppose you invent and patent the chair. I then follow by inventing and patenting the rocking chair---implemented by building rockers onto a chair covered by your patent. In this situation I cannot manufacture a rocking chair without getting a license from you for the use of your chair patent, and you cannot build rocking chairs either without a license to my rocker patent. If we cannot agree on licensing terms, no one will have the right to build rocking chairs. +={Eisenberg, R.+1;Heller, M.+1;Merges, Robert;Nelson, R.;Government policy:user innovation and+19} + +In theory and in a world of costless transactions, people could avoid tragedies of the anticommons by licensing or trading their intellectual property rights. In practice the situation can be very different. Heller and Eisenberg point specifically to the field of biomedical research, and argue that conditions for anticommons effects do exist there. In that field, patents are routinely allowed on small but important elements of larger research problems, and upstream research is increasingly likely to be private. "Each upstream patent," Heller and Eisenberg note, "allows its owner to set up another tollbooth on the road to product development, adding to the cost and slowing the pace of downstream biomedical innovation." +={Transaction costs} + +A second type of strategic behavior based on patent rights involves investing in large portfolios of patents to create "patent thickets"---dense networks of patent claims across a wide field (Merges and Nelson 1990; Hall and Ham Ziedonis 2001; Shapiro 2001; Bessen 2003). Patent thickets create plausible grounds for patent infringement suits across a wide field. Owners of patent thickets can use the threat of such suits to discourage others from investing research dollars in areas of technical advance relevant to their products. Note that this use of patents is precisely opposite to policy mak' intentions to stimulate innovation by providing ways for innovators to assert intellectual property rights. Indeed, Bessen and Hunt (2004) have found in the field of software that, on average, as firm's investments in patent protection go up, their investments in research and development actually go down. If this relationship proves causal, there is a reasonable explanation from the viewpoint of private profit: corporations that can use a patent thicket to deter others' research in a field might well decide that there is less need to do research of their own. +={Bessen, J.;Hall, B.;Hunt, R.;Merges, Robert;Nelson, R.;Shapiro, C.;Ziedonis, R.;Government policy:patent thickets and;Intellectual property rights:patent thickets and} + +Similar innovation-retarding strategies can be applied by owners of large collections of copyrighted work in the movie, publishing, and software fields. Copyright owners can prevent others from building new works on characters (e.g. Mickey Mouse) that are already familiar to customers. The result is that owners of large portfolios of copyrighted work can gain an advantage over those with no or small portfolios in the creation of derivative works. Indeed, Benkler (2002) argues that institutional changes strengthening intellectual property protection tend to foster concentration of information production in general. Lessig (2001) and Boldrin and Levine (2002) arrive at a similarly negative valuation of overly strong and lengthy copyright protection. +={Benkler, Y.;Boldrin, M.;Levine, D.;Lessig, L.;Intellectual property rights:copyrights and;Government policy:copyrights and} + +These types of innovation-discouraging effects can affect innovation by users especially strongly. The distributed innovation system we have documented consists of users each of whom might have only a few innovations and a small amount of intellectual property. Such innovators are clearly hurt differentially by a system that gives advantage to the owners of large shares of the intellectual property in a field. + +What can be done? A solution approach open to policy makers is to change intellectual property law so as to level the playing field. But owners of large amounts of intellectual property protected under the present system are often politically powerful, so this type of solution will be difficult to achieve. + +Fortunately, an alternative solution approach may be available to innovators themselves. Suppose that many elect to contribute the intellectual property they individually develop to a commons in a particular field. If the commons then grows to contain reasonable substitutes for much of the proprietary intellectual property relevant to the field, the relative advantage accruing to large holders of this information will diminish and perhaps even disappear. At the same time and for the same reason, the barriers that privately held stocks of intellectual property currently may raise to further intellectual advance will also diminish. Lessig supports this possibility with his creation and publication of standard "Creative Commons" licenses on the website creativecommons.org. Authors interested in contributing their work to the commons, perhaps with some restrictions, can easily find and adopt an appropriate license at that site. +={Lessig, L.;Intellectual commons+13;Intellectual property rights:intellectual commons and+13;Open source software:intellectual commons and+13|intellectual property rights and+13;Intellectual property rights:licensing of} + +Reaching agreement on conditions for the formation of an intellectual commons can be difficult. Maurer (2005) makes this clear in his cautionary tale of the struggle and eventual failure to create a commons for data on human mutations. However, success is possible. For example, an extensive intellectual commons of software code is contained and maintained in the many open source software projects that now exist. +={Maurer, S.;Innovation communities+2} + +Interesting examples also exist regarding on the impact a commons can have on the value of intellectual property innovators seek to hold apart from it. Weber (2004) recounts the following anecdote: In 1988, Linux developers were building new graphical interfaces for their open source software. One of the most promising of these, KDE, was offered under the General Public License. However, Matthias Ettrich, its developer, had built KDE using a proprietary graphical library called Qt. He felt at the time that this could be an acceptable solution because Qt was of good quality and Troll Tech, owner of Qt, licensed Qt at no charge under some circumstances. However, Troll Tech did require a developer's fee be paid under other circumstances, and some Linux developers were concerned about having code not licensed under the GPL as part of their code. They tried to convince Troll Tech to change the Qt license so that it would be under the GPL when used in free software. But Troll Tech, as was fully within its rights, refused to do this. Linux developers then, as was fully within their rights, began to develop open source alternatives to Qt that could be licensed under the GPL. As those projects moved toward success, Troll Tech recognized that Qt might be surpassed and effectively shut out of the Linux market. In 2000 the company therefore decided to license Qt under the GPL. +={Ettrich, M.;Linux;Weber, S.;Intellectual property rights:licensing of+1;Linux} + +Similar actions can keep conditions for free access to materials held within a commons from degrading and being lost over time. Chris Hanson, a Principal Research Scientist at MIT, illustrates this with an anecdote regarding an open source software component called ipfilter. The author of ipfilter attempted to "lock" the program by changing licensing terms of his program to disallow the distribution of modified versions. His reasoning was that Ipfilter, a network-security filter, must be as bug-free as possible, and that this could best be ensured by his controlling access. His actions ignited a flame war in which the author was generally argued to be selfish and overreaching. His program, then an essential piece of BSD operating systems, was replaced by newly written code in some systems within the year. The author, Hanson notes, has since changed his licensing terms back to a standard BSD-style (unrestricted) license. +={Hanson, C.} + +We will learn over time whether and how widely the practice of creating and defending intellectual commons diffuses across fields. There obviously can be cases where it will continue to make sense for innovators, and for society as well, to protect innovations as private intellectual property. However, it is likely that many user innovations are kept private not so much out of rational motives as because of a general, not-thought-through attitude that "we do not give away our intellectual property," or because the administrative cost of revealing is assumed to be higher than the benefits. Firms and society can benefit by rethinking the benefits of free revealing and (re)developing policies regarding what is best kept private and what is best freely revealed. +={Government policy:social welfare and+9|trade secrets and+3;Intellectual property rights:trade secrets and+3} + +!_ Constraints on Product Modification +={Custom products:manufacturers and+2;Government policy:manufacturer innovation and+8;Manufacturers:government policy and+8} + +Users often develop prototypes of new products by buying existing commercial products and modifying them. Current efforts by manufacturers to build technologies into the products they sell that restrict the way these products are used can undercut users' traditional freedom to modify what they purchase. This in turn can raise the costs of innovation development by users and so lessen the amount of user innovation that is done. For example, makers of ink-jet printers often follow a razor-and-blade strategy, selling printers at low margins and the ink cartridges used in them at high margins. To preserve this strategy, printer manufacturers want to prevent users from refilling ink cartridges with low-cost ink and using them again. Accordingly, they may add technical modifications to their cartridges to prevent them from functioning if users have refilled them. This manufacturer strategy can potentially cut off both refilling by the economically minded and modifications by user-innovators that might involve refilling (Varian 2002). Some users, for example, have refilled cartridges with special inks not sold by printer manufacturers in order to adapt ink-jet printing to the printing of very high-quality photographs. Others have refilled cartridges with food colorings instead of inks in order to develop techniques for printing images on cakes. Each of these applications might have been retarded or prevented by technical measures against cartridge refilling. +={Varian, H.} + +The Digital Millennium Copyright Act, a legislative initiative intended to prevent product copying, may negatively affect users' abilities to change and improve the products they own. Specifically, the DMCA makes it a crime to circumvent anti-piracy measures built into most commercial software. It also outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software. Unfortunately, code cracking is also a needed step for modification of commercial software products by user-innovators. Policy makers should be aware of "collateral damage" that may be inflicted on user innovation by legislation aimed at other targets, as is likely in this case. +={Digital Millennium Copyright Act} + +!_ Control over Distribution Channels +={Government policy:distribution channels and+1} + +Users that innovate and wish to freely diffuse innovation-related information are able to do so cheaply in large part because of steady advances in Internet distribution capabilities. Controls placed on such infrastructural factors can threaten and maybe even totally disable distributed innovation systems such as the user innovation systems documented in this book. For example, information products developed by users are commonly distributed over the Internet by peer-to-peer sharing networks. A firm that owns both a channel and content (e.g., a cable network) may have a strong incentive to shut out or discriminate against content developed by users or others in favor of its own content. The transition from the chaotic, fertile early days of radio in the United States when many voices were heard, to an era in which the spectrum was dominated by a few major networks---a transition pushed by major firms and enforced by governmental policy making--- provides a sobering example of what could happen (Lessig 2001). It will be important for policy makers to be aware of this kind of incentive problem and address it---in this case perhaps by mandating that ownership of content and ownership of channel be separated, as has long been the case for other types of common carriers. +={Lessig, L.} + +!_ R&D Subsidies and Tax Credits +={Government policy:R&D subsidies and+3} + +In many countries, manufacturing firms are rewarded for their innovative activity by R&D subsidies and tax credits. Such measures can make economic sense if average social returns to innovation are significantly higher than average private returns, as has been found by Mansfield et al. (1977) and others. However, important innovative activities carried out by users are often not similarly rewarded, because they tend to not be documentable as formal R&D activities. As we have seen, users tend to develop innovations in the course of "doing" in their normal use environments. Bresnahan and Greenstein (1996a) make a similar point. They investigate the role of "co-invention" in the move by users from mainframe to client-server architecture.~{ See also Bresnahan and Greenstein 1996b; Bresnahan and Saloner 1997; Saloner and Steinmueller 1996. }~ By "co-invention" Bresnahan and Greenstein mean organizational changes and innovations developed and implemented by users that are required to take full advantage of a new invention. They point out the high importance that co-invention has for realizing social returns from innovation. They consider the federal government's support for creating "national information infrastructures" insufficient or misallocated, since they view co-invention is the bottleneck for social returns and likely the highest value locus for invention. +={Bresnahan, T.;Greenstein, S.;Mansfield, E.;Users:co-invention and} + +Efforts to level the playing field for user innovation and manufacturer innovation could, of course, also go in the direction of lessening R&D subsidies or tax credits for all rather than attempting to increase user-innovators' access to subsidies. However, if directing subsidies to user-innovators seems desirable, social welfare will be best served if policy makers link them to free revealing by user-innovators as well as or instead of tying them to users' private investments in the development of products for exclusive in-house use. Otherwise, duplication of effort by users interested in the same innovation will reduce potential welfare gains. +={Free revealing of innovation information:government policy and+1|social welfare and+1} + +In sum, the welfare-enhancing effects found for freely revealed user innovations suggest that policy makers should consider conditions required for user innovation when creating policy and legislation. Leveling the playing field for user-innovators and manufacturer-innovators will doubtless force more rapid change onto manufacturers. However, as will be seen in the next chapter, manufacturers can adapt to a world in which user innovation is at center stage. + +1~ 9 Democratizing Innovation +={Social welfare:innovation and+45;von Hippel, E.+45} + +We have learned that lead users sometimes develop and modify products for themselves and often freely reveal what they have done. We have also seen that many users can be interested in adopting the solutions that lead users have developed. Taken together, these findings offer the basis for user-centered innovation systems that can entirely supplant manufacturer-based innovation systems under some conditions and complement them under most. User-centered innovation is steadily increasing in importance as computing and communication technologies improve. +={Free revealing of innovation information:lead users and;Manufacturers:innovation and+44;Custom products:users and;Innovation:lead users and;Lead users:innovation and;User need+3;Users:innovation and+4} + +I begin this chapter with a discussion of the ongoing democratization of innovation. I then describe some of the patterns in user-centered innovation that are emerging. Finally, I discuss how manufacturers can find ways to profitably participate in emerging, user-centered innovation processes. + +!_ The Trend toward Democratization + +Users' abilities to develop high-quality new products and services for themselves are improving radically and rapidly. Steady improvements in computer software and hardware are making it possible to develop increasingly capable and steadily cheaper tools for innovation that require less and less skill and training to use. In addition, improving tools for communication are making it easier for user innovators to gain access to the rich libraries of modifiable innovations and innovation components that have been placed into the public domain. The net result is that rates of user innovation will increase even if users' heterogeneity of need and willingness to pay for "exactly right" products remain constant. +={Custom products:users and+1;Users:paying for innovations and} + +The radical nature of the change that is occurring in design capabilities available to even individual users is perhaps difficult for those without personal innovation experience to appreciate. An anecdote from my own experience may help as illustration. When I was a child and designed new products that I wanted to build and use, the ratio of not-too-pleasurable (for me) effort required to actually build a prototype relative to the very pleasurable effort of inventing it and use-testing it was huge. (That is, in terms of the design, build, test, evaluate cycle illustrated in figure 5.1, the effort devoted to the "build" element of the cycle was very large and the rate of iteration and learning via trial and error was very low.) + +In my case it was especially frustrating to try to build anything sophisticated from mechanical parts. I did not have a machine shop in which I could make good parts from scratch, and it often was difficult to find or buy the components I needed. As a consequence, I had to try to assemble an approximation of my ideas out of vacuum cleaner parts and other bits of metal and plastic and rubber that I could buy or that were lying around. Sometimes I failed at this and had to drop an exciting project. For example, I found no way to make the combustion chamber I needed to build a large pulse-jet engine for my bicycle (in retrospect, perhaps a lucky thing!). Even when I succeeded, the result was typically "unaesthetic": the gap between the elegant design in my mind and the crude prototype that I could realize was discouragingly large. + +Today, in sharp contrast, user firms and increasingly even individual hobbyists have access to sophisticated design tools for fields ranging from software to electronics to musical composition. All these information-based tools can be run on a personal computer and are rapidly coming down in price. With relatively little training and practice, they enable users to design new products and services---and music and art---at a satisfyingly sophisticated level. Then, if what has been created is an information product, such as software or music, the design is the actual product---software you can use or music you can play. + +If one is designing a physical product, it is possible to create a design and even conduct some performance testing by computer simulation. After that, constructing a real physical prototype is still not easy. However, today users do have ready access to kits that offer basic electronic and mechanical building blocks at an affordable price, and physical product prototyping is becoming steadily easier as computer-driven 3-D parts printers continue to go up in sophistication while dropping in price. Very excitingly, even today home-built prototypes need not be poorly fashioned items that will fall apart with a touch in the wrong place---the solution components now available to users are often as good as those available to professional designers. + +Functional equivalents of the resources for innovation just described have long been available within corporations to a lucky few. Senior designers at firms have long been supported by engineers and designers under their direct control, and also with other resources needed to quickly construct and test prototype designs. When I took a job as R&D manager at a start-up firm after college, I was astounded at the difference professional-quality resources made to both the speed and the joy of innovation. Product development under these conditions meant that the proportion of one's effort that could be focused on the design and test portions of the innovation cycle rather than on prototype building was much higher, and the rate of progress was much faster. +={Innovation process+3} + +The same story can be told in fields from machine design to clothing design: just think of the staffs of seamstresses and models supplied by clothing manufacturers to their "top designers" so that these few can quickly realize and test many variations on their designs. In contrast, think of the time and effort that equally talented designers without such staff assistance must engage in to stitch together even a single high-quality garment prototype on their own. + +But, as we learned in chapter 7, the capability and the information needed to innovate in important ways are in fact widely distributed. Given this finding, we can see that the traditional pattern of concentrating innovation-support resources on just a few pre-selected potential innovators is hugely inefficient. High-cost resources for innovation support cannot be allocated to "the right people," because one does not know who they are until they develop an important innovation. When the cost of high-quality resources for design and prototyping becomes very low---which is the trend we have described---these resources can be diffused widely, and the allocation problem then diminishes in significance. The net result is and will be to democratize the opportunity to create. + +Democratization of the opportunity to create is important beyond giving more users the ability to make exactly right products for themselves. As we saw in a previous chapter, the joy and the learning associated with creativity and membership in creative communities are also important, and these experiences too are made more widely available as innovation is democratized. The aforementioned Chris Hanson, a Principal Research Scientist at MIT and a maintainer in the Debian Linux community, speaks eloquently of this in his description of the joy and value he finds from his participation in an open source software community: +={Hanson, C.;Linux;Users:innovate-or-buy decisions by+3|innovation process and+3;Free revealing of innovation information:innovation and+3;Innovation communities:open source software and;Linux;Open source software:innovation communities and+3} + +_1 Creation is unbelievably addictive. And programming, at least for skilled programmers, is highly creative. So good programmers are compelled to program to feed the addiction. (Just ask my wife!) Creative programming takes time, and careful attention to the details. Programming is all about expressing intent, and in any large program there are many areas in which the programmer's intent is unclear. Clarification requires insight, and acquiring insight is the primary creative act in programming. But insight takes time and often requires extensive conversation with one's peers. + +_1 Free-software programmers are relatively unconstrained by time. Community standards encourage deep understanding, because programmers know that understanding is essential to proper function. They are also programming for themselves, and naturally they want the resulting programs to be as good as they can be. For many, a free software project is the only context in which they can write a program that expresses their own vision, rather than implementing someone else's design, or hacking together something that the marketing department insists on. No wonder programmers are willing to do this in their spare time. This is a place where creativity thrives. + +_1 Creativity also plays a role in the programming community: programming, like architecture, has both an expressive and a functional component. Unlike architecture, though, the expressive component of a program is inaccessible to non-programmers. A close analogy is to appreciate the artistic expression of a novel when you don't know the language in which it is written, or even if you know the language but are not fluent. This means that creative programmers want to associate with one another: only their peers are able to truly appreciate their art. Part of this is that programmers want to earn respect by showing others their talents. But it's also important that people want to share the beauty of what they have found. This sharing is another act that helps build community and friendship. + +!_ Adapting to User-Centered Innovation---Like It or Not +={Innovation process+5;Free revealing of innovation information:innovation and+5} + +User-centered innovation systems involving free revealing can sometimes supplant product development carried out by manufacturers. This outcome seems reasonable when manufacturers can obtain field-tested user designs at no cost. As an illustration, consider kitesurfing (previously discussed in chapter 7). The recent evolution of this field nicely shows how manufacturer-based product design may not be able to survive when challenged by a user innovation community that freely reveals leading-edge designs developed by users. In such a case, manufacturers may be obliged to retreat to manufacturing only, specializing in modifying user-developed designs for producibility and manufacturing these in volume. +={Free revealing of innovation information:users and;Kitesurfing+4} + +Recall that equipment for kitesurfing was initially developed and built by user-enthusiasts who were inventing both kitesurfing techniques and kitesurfing equipment interdependently. Around 1999, the first of several small manufacturers began to design and sell kitesurfing equipment commercially. The market for kitesurfing equipment then began to grow very rapidly. In 2001 about 5,000 kite-and-board sets were sold worldwide. In 2002 the number was about 30,000, and in 2003 it was about 70,000. With a basic kite-and-board set selling for about $1,500, total sales in 2003 exceeded $100 million. (Many additional kites, home-made by users, are not included in this calculation.) As of 2003, about 40 percent of the commercial market was held by a US firm called Robbie Naish (Naishkites.com). + +Recall also that in 2001 Saul Griffith, an MIT graduate student, established an Internet site called Zeroprestige.com as a home for a community of kitesurfing users and user-innovators. In 2003, the general consensus of both site participants and manufacturers was that the kite designs developed by users and freely revealed on Zeroprestige.com were at least as advanced as those developed by the leading manufacturers. There was also a consensus that the level of engineering design tools and aggregate rate of experimentation by kite users participating on the Zeroprestige.com site was superior to that within any kite manufacturer. Indeed, this collective user effort was probably superior in quality and quantity to the product-development work carried out by all manufacturers in the industry taken together. +={Griffith, S.;Zeroprestige.com+1} + +In late 2003, a perhaps predictable event occurred: a kite manufacturer began downloading users' designs from Zeroprestige.com and producing them for commercial sale. This firm had no internal kitesurfing product-development effort and offered no royalties to user-innovators---who sought none. It also sold its products at prices much lower than those charged by companies that both developed and manufactured kites. + +It is not clear that manufacturers of kitesurfing equipment adhering to the traditional developer-manufacturer model can---or should---survive this new and powerful combination of freely revealed collaborative design and prototyping effort by a user innovation community combined with volume production by a specialist manufacturer. In effect, free revealing of product designs by users offsets manufacturers' economies of scale in design with user communities' economies of scope. These economies arise from the heterogeneity in information and resources found in a user community. +={Custom products:heterogeneity of user needs and;User need+2} + +!_ Manufacturers' Roles in User-Centered Innovation + +Users are not required to incorporate manufacturers in their product-development and product-diffusion activities. Indeed, as open source software projects clearly show, horizontal innovation communities consisting entirely of users can develop, diffuse, maintain, and consume software and other /{information}/ products by and for themselves---no manufacturer is required. Freedom from manufacturer involvement is possible because information products can be "produced" and distributed by users essentially for free on the web (Kollock 1999). In contrast, production and diffusion of physical products involves activities with significant economies of scale. For this reason, while product development and early diffusion of copies of physical products developed by users can be carried out by users themselves and within user innovation communities, mass production and general diffusion of physical products incorporating user innovations are usually carried out by manufacturing firms. +={Innovation communities:open source software and+5;Open source software:innovation and+5|innovation communities and+5} + +For information products, general distribution is carried out within and beyond the user community by the community itself; no manufacturer is required: + +Innovating lead users ➔ All users. + +For physical products, general distribution typically requires manufacturers: + +Innovating lead users ➔ Manufacturer ➔ All users. + +In light of this situation, how can, should, or will manufacturers of products, services, and processes play profitable roles in user-centered innovation systems? Behlendorf (1999), Hecker (1999) and Raymond (1999) explore what might be possible in the specific context of open source software. More generally, many are experimenting with three possibilities: (1) Manufacturers may produce user-developed innovations for general commercial sale and/or offer a custom manufacturing service to specific users. (2) Manufacturers may sell kits of product-design tools and/or "product platforms" to ease users' innovation-related tasks. (3) Manufacturers may sell products or services that are complementary to user-developed innovations. +={Behlendorf, B.;Hecker, F.;Raymond, E.} + +!_ Producing User-Developed Products + +Firms can make a profitable business from identifying and mass producing user-developed innovations or developing and building new products based on ideas drawn from such innovations. They can gain advantages over competitors by learning to do this better than other manufacturers. They may, for example, learn to identify commercially promising user innovations more effectively that other firms. Firms using lead user search techniques such as those we will describe in chapter 10 are beginning to do this systematically rather than accidentally---surely an improvement. Effectively transferring user-developed innovations to mass manufacture is seldom as simple as producing a product based on a design by a single lead user. Often, a manufacturer combines features developed by several independent lead users to create an attractive commercial offering. This is a skill that a company can learn better than others in order to gain a competitive advantage. +={Lead users:innovation and|manufacturers and+1;Manufacturers:lead users and+1} + +The decision as to whether or when to take the plunge and commercialize a lead user innovation(s) is also not typically straightforward, and companies can improve their skills at inviting in the relevant information and making such assessments. As was discussed previously, manufacturers often do not understand emerging user needs and markets nearly as well as lead users do. Lead users therefore may engage in entrepreneurial activities, such as "selling" the potential of an idea to potential manufacturers and even lining up financing for a manufacturer when they think it very important to rapidly get widespread diffusion of a user-developed product. Lettl, Herstatt, and Gemünden (2004), who studied the commercialization of major advances in surgical equipment, found innovating users commonly engaging in these activities. It is also possible, of course, for innovating lead users to become manufacturers and produce the products they developed for general commercial sale. This has been shown to occur fairly frequently in the field of sporting goods (Shah 2000; Shah and Tripsas 2004; Hienerth 2004). +={Gemünden, H.;Lettl, C.;Herstatt, C.;Hienerth, C.;Shah, S.;Tripsas, M.;Lead users:surgical equipment and;Windsurfing;Custom products:innovation and+1|manufacturers and+1;users and+1;Users:custom products and+1} + +Manufacturers can also elect to provide custom production or "foundry" services to users, differentiating themselves by producing users' designs faster, better, and/or cheaper than competitors. This type of business model is already advanced in many fields. Custom machine shops specialize in manufacturing mechanical parts to order; electronic assembly shops produce custom electronic products, chemical manufacturers offer "toll" manufacturing of custom products designed by others, and so on. Suppliers of custom integrated circuits offer an especially good example of custom manufacture of products designed by users. More than $15 billion worth of custom integrated circuits were produced in 2002, and the cumulative average growth rate of that market segment was 29 percent. Users benefit from designing their own circuits by getting exactly what they want more quickly than manufacturer-based engineers could supply what they need, and manufacturers benefit from producing the custom designs for users (Thomke and von Hippel 2002). +={Thomke, S.;von Hippel, E.;Custom products:|suppliers and+2;Suppliers+2;Economic benefit, expectations of by lead users:by manufacturers|by users} + +!_ Supplying Toolkits and/or Platform Products to Users +={Custom products:product platforms and+7;Toolkits+7:platform products and+7} + +Users interested in designing their own products want to do it efficiently. Manufacturers can therefore attract them to kits of design tools that ease their product-development tasks and to products that can serve as "platforms" upon which to develop and operate user-developed modifications. Some are supplying users with proprietary sets of design tools only. Cadence, a supplier of design tools for corporate and even individual users interested in designing their own custom semiconductor chips, is an example of this. Other manufacturers, including Harley-Davidson in the case of motorcycles and Microsoft in the case of its Excel spreadsheet software, sell platform products intentionally designed for post-sale modification by users. +={Microsoft} + +Some firms that sell platform products or design tools to users have learned to systematically incorporate valuable innovations that users may develop back into their commercial products. In effect, this second strategy can often be pursued jointly with the manufacturing strategy described above. Consider, for example, StataCorp of College Station, Texas. StataCorp produces and sells Stata, a proprietary software program designed for statistics. It sells the basic system bundled with a number of families of statistical tests and with design tools that enable users to develop new tests for operation on the Stata platform. Advanced customers, many of them statisticians and social science researchers, find this capability very important to their work and do develop their own tests. Many then freely reveal tests they have developed on Internet websites set up by the users themselves. Other users then visit these sites to download and use, and perhaps to test, comment on, and improve these tests, much as users do in open source software communities. +={StataCorp statistical software+2;Toolkits:StataCorp and+2;Free revealing of innovation information:innovation and+3|intellectual property rights and+3;Government policy:free revealing and+3|intellectual property rights and+3|trade secrets and+3;Innovation communities+3:open source software and+3|and sources of innovation+3;Intellectual property rights:free revealing and+3|trade secrets and+3;Open source software:innovation and+10|innovation communities and+10} + +StataCorp personnel monitor the activity at user sites, and note the new tests that are of interest to many users. They then bring the most popular tests into their product portfolio as Stata modules. To do this, they rewrite the user's software code while adhering to the principles pioneered by the user-innovator. They then subject the module to extensive validation testing---a very important matter for statisticians. The net result is a symbiotic relationship. User-innovators are publicly credited by Stata for their ideas, and benefit by having their modules professionally tested. StataCorp gains a new commercial test module, rewritten and sold under its own copyright. Add-ons developed by users that are freely revealed will increase StataCorp's profits more than will equivalent add-ons developed and sold by manufacturers (Jokisch 2001). Similar strategies are pursued by manufacturers of simulator software (Henkel and Thies 2003). +={Henkel, J.;Jokisch, M.;Thies, S.;Economic benefit, expectations of by lead users:by manufacturers|by users} + +Note, however, that StataCorp, in order to protect its proprietary position, does not reveal the core of its software program to users, and does not allow any user to modify it. This creates problems for those users who need to make modifications to the core in order to solve particular problems they encounter. Users with problems of this nature and users especially concerned about price have the option of turning to non-proprietary free statistical software packages available on the web, such as the "R" project (www.r-project.org). These alternatives are developed and supported by user communities and are available as open source software. The eventual effect of open source software alternatives on the viability of the business models of commercial vendors such as StataCorp and its competitors remains to be seen. + +A very similar pattern exists in the online gaming industry. Vendors of early online computer games were surprised to discover that sophisticated users were deciphering their closed source code in order to modify the games to be more to their liking. Some of these "mods" attracted large followings, and some game vendors were both impressed and supportive. Manufacturers also discovered that the net effect of user-developed mods was positive for them: mods actually increased the sales of their basic software, because users had to buy the vendors' proprietary software engine code in order to play the mods. Accordingly, a number of vendors began to actively support user-developers by supplying them with design tools to make it easier for them to build mods on their proprietary engine platforms (Jeppesen and Molin 2003). +={Jeppesen, L.+1;Molin, M.} + +Both manufacturers and users involved with online gaming are experimenting with the possibilities of user-manufacturer symbiosis in a number of additional ways. For example, some vendors are experimenting with creating company-supported distribution channels through which users---who then become vendors---can sell their mods rather than simply offering them as free downloads (Jeppesen 2004). At the same time, some user communities are working in the opposite direction by joining together to develop open source software engines for video games. If the latter effort is successful, it will offer mod developers a platform and design tools that are entirely non-proprietary for the first time. As in the case of statistical software, the eventual outcomes of all these experiments are not yet clear. + +As a final example of a strategy in which manufacturers offer a platform to support user innovation of value to them, consider General Electric's innovation pattern with respect to the magnetic-resonance imaging machines it sells for medical use. Michael Harsh (GE's Director of R&D in the division that produces MRI machines) and his colleagues realized that nearly all the major, commercially important improvements to these machines are developed by leading-edge users rather than by GE or by competing machine producers. They also knew that commercialization of user-developed improvements would be easier and faster for GE if the users had developed their innovations using a GE MRI machine as a platform rather than a competitor's machine. Since MRI machines are expensive, GE developed a policy of selectively supplying machines at a very low price to scientists GE managers judged most likely to develop important improvements. These machines are supplied with restrictive interlocks removed so that the users can easily modify them. In exchange for this research support, the medical researchers give GE preferred access to innovations they develop. Over the years, supported researchers have provided a steady flow of significant improvements that have been first commercialized by GE. Managers consider the policy a major source of GE's commercial success in the MRI field. +={General Electric;Harsh, M.;Toolkits:GE and} + +!_ Providing Complementary Products or Services + +Many user innovations require or benefit from complementary products or services, and manufacturers can often supply these at a profit. For example, IBM profits from user innovation in open source software by selling the complement of computer hardware. Specifically, it sells computer servers with open source software pre-installed, and as the popularity of that software goes up, so do server sales and profits. A firm named Red Hat distributes a version of the open source software computer operating system Linux, and also sells the complementary service of Linux technical support to users. Opportunities to provide profitable complements are not necessarily obvious at first glance, and providers often reap benefits without being aware of the user innovation for which they are providing a complement. Hospital emergency rooms, for example, certainly gain considerable business from providing medical care to the users and user-developers of physically demanding sports, but may not be aware of this. +={IBM;Linux;Users:innovation and+3;Innovation communities:open source software and;Linux;Innovation communities:sources of innovation and} + +!_ Discussion +={Government policy:intellectual property rights and+2} + +All the examples above explore how manufacturers can integrate themselves into a user-centered innovation system. However, manufacturers will not always find user innovations based on or related to their products to be in their interest. For example, manufacturers may be concerned about legal liabilities and costs sometimes associated with "unauthorized user tinkering." For example, an automaker might legitimately worry about the user-programmed engine controller chips that racing aficionados and others often install to change their cars' performance. The result can be findings of eventual commercial value as users explore new performance regimes that manufacturers' engineers might not have considered. However, if users choose to override manufacturers' programming to increase engine performance, there is also a clear risk of increased warrantee costs for manufacturers if engines fail as a consequence (Mollick 2004). +={Mollick, Ethan} + +We have seen that manufacturers can often find ways to profit from user innovation. It is also the case, however, that user innovators and user innovation communities can provide many of these same functions for themselves. For example, StataCorp is successfully selling a proprietary statistical software package. User-developed alternatives exist on the web that are developed and maintained by user-innovators and can be downloaded at no charge. Which ownership model will prove more robust under what circumstances remains to be seen. Ultimately, since users are the customers, they get to choose. +={StataCorp statistical software;Toolkits:StataCorp and;Users:innovation communities and;Innovation communities} + +1~ 10 Application: Searching for Lead User Innovations +={Users:innovation and+59;Lead users+59:innovation and+59|identification of+49} + +Users and manufacturers can apply the insights developed in this book to improve their innovation processes. In this chapter, I illustrate by showing how firms can profit by /{systematically}/ searching for innovations developed by lead users. I first explain how this can be done. I then present findings of a study conducted at 3M to assess the effectiveness of lead user idea-generation techniques. Finally, I briefly review other studies reporting systematic searches for lead users by manufacturers, and the results obtained. +={Lead users:idea generation and|3M and;Manufacturers:innovation and|lead users and+16;3M Corporation} + +!_ Searching for Lead Users + +Product-development processes traditionally used by manufacturers start with market researchers who study customers in their target markets to learn about unsatisfied needs. Next, the need information they uncover is transferred to in-house product developers who are charged with developing a responsive product. In other words, the approach is to find a user need and to fill it by means of in-house product development. +={Marketing research+2} + +These traditional processes cannot easily be adapted to systematic searching for lead user innovations. The focus on target-market customers means that lead users are regarded as outliers of no interest. Also, traditional market-research analyses focus on collecting and analyzing need information and not on possible solutions that users may have developed. For example, if a user says "I have developed this new product to make task X more convenient," market-research analyses typically will note that more convenience is wanted but not record the user-developed solution. After all, product development is the province of in-house engineers! + +We are therefore left with a question: How can manufacturers build a product-development process that systematically searches for and evaluates lead user-generated innovations? (See figure 10.1.) It turns out that the answer differs depending on whether the lead users sought are at the leading edge of "advanced analog" fields or at the leading edge of target markets. Searching for the former is more difficult, but experience shows that the user-developed innovations that are most radical (and profitable) relative to conventional thinking often come from lead users in "advanced analog" fields. +={Manufacturers:innovation and;Lead users:characteristics of+1;Marketing research+1} + +% Only lead user +% prototypes available +% Time +% Commercial versions of product available +% Number +% of users +% perceiving +% need +% Figure 10.1 +% Innovations by lead users precede equivalent commercial products. + +{di_evh_f10-1.png}image + +!_ Figure 10.1 +Innovations by lead users precede equivalent commercial products. + +!_ Identifying Lead Users in Advanced Analog Fields + +Lead users in advanced analog fields experience needs that are related to but more extreme than those being faced by /{any}/ users, including lead users, within the target market. They also often face a different set of constraints than those affecting users in the target market. These differences can force them to develop solutions that are entirely new from the perspective of the target market. + +As an example, consider the relationship between the braking requirements faced by users of automobiles (let's call auto users the target market) and the braking requirements faced by large commercial airplanes as they land on an airport runway (the advanced analog market). Clearly, the braking demands on large airplanes are much more extreme. Airplanes are much heavier than autos and land at higher speeds: their brakes must rapidly dissipate hundreds of times more energy to bring the vehicle to a stop. Also, the situational constraints are different. For example, auto drivers are often assisted in braking in winter by the application of salt or sand to icy roads. These aids cannot be applied in the case of aircraft: salt would damage aircraft bodies, and sand would be inhaled into jet engines and damage them. + +The result of the more extreme demands and additional constraints placed on solutions to aircraft braking was the development of antilock braking systems (ABS) for aircraft. Auto firms conducting searches for valuable lead user innovations regarding auto braking were able to learn about this out-of-field innovation and adapt if for use in autos---where it is common today. Before the development of ABS for autos, an automobile firm could have learned about the underlying concept by studying the practices of users with a strong need for controlling skidding while braking such as stock car auto racing teams. These lead users had learned to manually "pump" their brakes to help control this problem. However, auto company engineers were able to learn much more by studying the automated solutions developed in the "advanced analog" field of aerospace.~{ ABS braking is intended to keep a vehicle's wheels turning during braking. ABS works by automatically and rapidly "pumping" the brakes. The result is that the wheels continue to revolve rather than "locking up," and the operator continues to have control over steering. }~ + +Finding lead users in advanced analog markets can be difficult because discovering the relevance of a particular analog can itself be a creative act. One approach that has proven effective is to ask the more easily identified lead users in target markets for nominations. These lead users tend to know about useful advanced analogs, because they have been struggling with their leading-edge problems for a long time, and often have searched beyond the target market for information. + +Networking from innovators to more advanced innovators in this way is called pyramiding (von Hippel, Thomke, and Sonnack 1999). Pyramiding is a modified version of the "snowballing" technique sometimes used by sociologists to identify members of a group or accumulate samples of rare respondents (Bijker 1995). Snowballing relies on the fact that people with rare interests or attributes tend to know others like themselves. Pyramiding modifies this idea by assuming that people with a strong interest in a topic or field can direct an enquiring researcher to people /{more}/ expert than themselves. Experiments have shown that pyramiding can identify high-quality informants much more efficiently than can mass-screening techniques under many conditions (von Hippel, Franke, and Prügl 2005). Pyramiding was made into a practical industrial process by Mary Sonnack, a Division Scientist at 3M, and Joan Churchill, a psychologist specializing in the development of industrial training programs. +={Bijker, W.;Churchill, J.;Franke, N.;Prügl, R.;Thomke, S.;von Hippel, E.+46} + +!_ Identifying Lead Users in Target Markets + +In general it is easier to identify users at the leading edge of target markets than it is to identify users in advanced analog fields. Screening for users with lead user characteristics can be used. When the desired type of lead user is so rare as to make screening impractical---often the case---pyramiding can be applied. In addition, manufacturers can take advantage of the fact that users at the leading edge of a target market often congregate at specialized sites or events that manufacturers can readily identify. At such sites, users may freely reveal what they have done and may learn from others about how to improve their own practices still further. Manufacturers interested in learning from these lead users can easily visit the sites and listen in. For example, sports equipment companies can go to sporting meets where lead users are known to compete, observe user innovations in action, and compare notes. +={Manufacturers:innovation and} + +Essentially the same thing can be done at virtual sites. For example, recall the practices of StataCorp, a supplier of statistical software. Stata sells a set of standard statistical tests and also a language and tools that statisticians can use to design new tests to serve their own evolving needs. Some Stata users (statisticians) took the initiative to set up a few specialized websites, unaffiliated with StataCorp, where they post their innovations for others to download, use, comment on, and improve. StataCorp personnel visit these sites, learn about the user innovations, and observe which tests seem to be of interest to many users. They then develop proprietary versions of the more generally useful tests as commercial products. +={Lead users:StataCorp statistical software and;StataCorp statistical software} + +When specialized rendezvous sites for lead users don't exist in a particular field, manufacturers may be able to create them. Technicon Corporation, for example, set up a series of seminars at which innovating users of their medical equipment got together and exchanged information on their innovations. Technicon engineers were free to listen in, and the innovations developed by these users were the sources of most of Technicon's important new product improvements (von Hippel and Finkelstein 1979). +={Finkelstein, S.;Technicon Corporation} + +!_ The 3M Experiment +={Lead users:3M and+32;3M Corporation+32} + +To test whether lead users in advanced analog fields can in fact generate information that leads to commercially valuable new products, Lilien, Morrison, Searls, Sonnack, and von Hippel (2002) studied a natural experiment at 3M. That firm was carrying out both lead user projects and traditional market research-based idea-generation projects in the same divisions at the same time, and in sufficient numbers to make statistical comparisons of outcomes possible. +={Lilien, G.+26;Morrison, Pamela+26;Searls, K.+26;Sonnack, M.+26;Lead users:idea generation and+45} + +!_ Methods + +3M first began using the lead user method in one division in 1996. By May 2000, when data collection began, five divisions of 3M had completed seven lead user (LU) idea-generation projects and had funded further development of the product concepts generated by five of these. These same five divisions also had 42 contemporaneously funded projects that used "find a need and fill it" idea-generation methodologies that were traditional practice at 3M. We used these two samples of funded ideas to compare the performance of lead user idea-generation projects with traditional idea-generation projects. Although 3M cooperated in the study and permitted access to company records and to members of the product-development teams, the firm did not offer a controlled experimental setting. Rather, we as researchers were required to account for any naturally occurring differences after the fact. + +Our study methodology required a pre-post/test-control situation, with at least quasi-random assignments to treatment cells (Cook and Campbell 1979). In other words, our goal was to compare samples of development projects in 3M divisions that differed with respect to their use of lead user idea-generation methods, but that were as similar as possible in other respects. Identifying, understanding, and controlling for the many potential sources of difference that could affect the natural experiment involved careful field explorations. Thus, possible differences between project staffing and performance incentives applied to LU and non-LU idea-generation projects were assessed. We looked for (and did not find) differences in the capabilities or motivation of LU and non-LU project team members with respect to achieving a major new product advance. 3M managers also said that there was no difference in these matters, and a content analysis of formal annual performance goals set for the individual LU and non-LU team members in a division that allowed access to these data supported their views. +={Campbell, D.;Cook, T.} + +We also found no major differences in the innovation opportunities teams faced. They also looked for Hawthorne or placebo effects that might affect the project teams differentially, and found none. (The Hawthorne effect can be described as "I do better because extra attention is being paid to me or to my performance." The placebo effect can be described as "I expect this process will work and will strive to get the results I have been told are likely.") We concluded that the 3M samples of funded LU and non-LU idea-generation projects, though not satisfying the random assignment criterion for experimental design, appeared to satisfy rough equivalence criteria in test and control conditions associated with natural or quasi-experimentation. Data were collected by interviews and by survey instruments. + +With respect to the intended difference under study---the use of lead user methods within projects---all lead user teams employed an identical lead user process taught to them with identical coaching materials and with coaching provided by members of the same small set of internal 3M coaches. Each lead user team consisted of three or four members of the marketing and technical departments of the 3M division conducting the project. Teams began by identifying important market trends. Then, they engaged in pyramiding to identify lead users with respect to each trend both within the target market and in advanced analog markets. Information from a number of innovating lead users was then combined by the team to create a new product concept and business plan---an "LU idea" (von Hippel, Thomke, and Sonnack 1999). +={Thomke, S.} + +% ={Sonnack, M.} + +Non-lead-user idea-generation projects were conducted in accordance with traditional 3M practices. I refer to these as non-LU idea generation methods and to teams using them as non-LU teams. Non-LU teams were similar to lead user teams in terms of size and make-up. They used data sources for idea generation that varied from project to project. Market data collected by outside organizations were sometimes used, as were data from focus groups with major customers and from customer panels, and information from lab personnel. Non-LU teams collected market information from target markets users but not from lead users. + +!_ Findings + +Our research compared all funded product concepts generated by LU and non-LU methods from February 1999 to May 2000 in each of the five 3M divisions that had funded one or more lead-user-developed product concepts. During that time, five ideas generated by lead user projects were being funded, along with 42 ideas generated by non-LU idea-generation methods. The results of these comparisons can be seen in table 10.1. Product concepts generated by seeking out and learning from lead users were found to be significantly more novel than those generated by non-LU methods. They were also found to address more original or newer customer needs, to have significantly higher market share, to have greater potential to develop into an entire product line, and to be more strategically important. The lead-user-developed product concepts also had projected annual sales in year 5 that were greater than those of ideas generated by non-LU methods by a factor of 8---an average of $146 million versus an average of $18 million in forecast annual sales. Thus, at 3M, lead user idea-generation projects clearly did generate new product concepts with much greater commercial potential than did traditional, non-LU methods (p < 0.005). + +!_ Table 10.1 +Concepts for new products developed by lead user project teams had far more commercial promise than those developed by non-lead-user project teams. + +table{~h c4; 40; 20; 20; 20; + +~ +LU product concepts (n =5) +Non-LU product concepts (n = 42) +Significance + +Factors related to value of concept +~ +~ +~ + +Novelty compared with competition a +9.6 +6.8 +0.01 + +Originality/newness of customer needs addressed +8.3 +5.3 +0.09 + +% market share in year 5 +68% +33% +0.01 + +Estimated sales in year 5 (deflated for forecast error) +$146m +$18m +0.00 + +Potential for entire product family a +10.0 +7.5 +0.03 + +Operating profit +22% +24.0% +0.70 + +Probability of success +80% +66% +0.24 + +Strategic importance a +9.6 +7.3 +0.08 + +Intellectual property protection a +7.1 +6.7 +0.80 + +Factors related to organizational fit of concept +~ +~ +~ + +Fit with existing distribution channels a +8.8 +8.0 +0.61 + +Fit with existing manufacturing capabilities a +7.8 +6.7 +0.92 + +Fit with existing strategic plan a +9.8 +8.4 +0.24 + +}table + +Source: Lilien et al. 2002, table 1.<:br> +a. Rated on a scale from 1 to 10. + +Note that the sales data for both the LU and non-LU projects are forecasts. To what extent can we rely on these? We explored this matter by collecting both forecast and actual sales data from five 3M division controllers. (Division controllers are responsible for authorizing new product-development investment expenditures.) We also obtained data from a 1995 internal study that compared 3M's sales forecasts with actual sales. We combined this information to develop a distribution of forecast errors for a number of 3M divisions, as well as overall forecast errors across the entire corporation. Those errors range from forecast/actual of +30 percent (over-forecast) to --13 percent (underforecast). On the basis of the information just described, and in consultation with 3M management, we deflated all sales forecast data by 25 percent. That deflator is consistent with 3M's historical experience and, we think, provides conservative sales forecasts.~{ In the general literature, Armstrong's (2001) review on forecast bias for new product introduction indicates that sales forecasts are generally optimistic, but that that upward bias decreases as the magnitude of the sales forecast increases. Coller and Yohn (1998) review the literature on bias in accuracy of management earnings forecasts and find that little systematic bias occurs. Tull's (1967) model calculates $15 million in revenue as a level above which forecasts actually become pessimistic on average. We think it reasonable to apply the same deflator to LU vs. non-LU project sales projections. Even if LU project personnel were for some reason more likely to be optimistic with respect to such projections than non-LU project personnel, that would not significantly affect our findings. Over 60 percent of the total dollar value of sales forecasts made for LU projects were actually made by personnel not associated with those projects (outside consulting firms or business analysts from other divisions). }~ Deflated data appear in table 10.1 and in the following tables. + +Rather strikingly, all five of the funded 3M lead user projects created the basis for major new product lines for 3M (table 10.2). In contrast, 41 of 42 funded product concepts generated by non-LU methods were improvements or extensions of existing product lines (χ^{2}^ test, p < 0.005). + +Following tt, p < 0.005).e advice of 3M divisional controllers, major product lines were defined as those separately reported in divisional financial statements. In 1999 in the 3M divisions we studied, sales of individual major product lines ranged from 7 percent to 73 percent of total divisional sales. The sales projections for funded lead user project ideas all fell well above the lower end of this range: projected sales five years after introduction for funded LU ideas, conservatively deflated as discussed above, ranged from 25 percent to over 300 percent of current total divisional sales. + +!_ Table 10.2 +Lead user project teams developed concepts for major new product lines. Non-lead-user project teams developed concepts for incremental product improvements. + +table{~h c3; 34; 33; 33; + +~ +Incremental product improvements +Major new product lines + +LU method +0 +5 + +Non-LU method +41 +1 + +}table + +Source: Lilien et al. 2002, table 2. + +To illustrate what the major product line innovations that the LU process teams generated at 3M were like, I briefly describe four (one is not described for 3M proprietary reasons): + +_* A new approach to the prevention of infections associated with surgical operations. The new approach replaced the traditional "one size fits all" approach to infection prevention with a portfolio of patient-specific measures based on each patient's individual biological susceptibilities. This innovation involved new product lines plus related business and strategy innovations made by the team to bring this new approach to market successfully and profitably. _* Electronic test and communication equipment for telephone field repair workers that pioneered the inclusion of audio, video, and remote data access capabilities. These capabilities enabled physically isolated workers to carry out their problem-solving work as a virtual team with co-workers for the first time. + +_* A new approach, implemented via novel equipment, to the application of commercial graphics films that cut the time of application from 48 hours to less than 1 hour. (Commercial graphics films are used, for example, to cover entire truck trailers, buses, and other vehicles with advertising or decorative graphics.) The LU team's solutions involved technical innovations plus related channel and business model changes to help diffuse the innovation rapidly. + +_* A new approach to protecting fragile items in shipping cartons that replaces packaging materials such as foamed plastic. The new product lines implementing the approach were more environmentally friendly and much faster and more convenient for both shippers and package recipients than other products and methods on the market. + +Lilien, Morrison, Searls, Sonnack, and I also explored to see whether the major product lines generated by the lead user projects had characteristics similar to those of the major product lines that had been developed at 3M in the past, including Scotch Tape. To determine this we collected data on all major new product lines introduced to the market between 1950 and 2000 by the five 3M divisions that had executed one or more lead user studies. (The year 1950 was as far back as we could go and still find company employees who could provide some data about the innovation histories of these major products lines.) Examples from our 1950--2000 sample include the following: +={Lilien, G.;Morrison, Pamela;Searls, K.} + +% ={Sonnack, M.} + +_* Scotch Tape: A line of transparent mending tapes that was first of its type and a major success in many household and commercial applications. + +_* Disposable patient drapes for operating room use: A pioneering line of disposable products for the medical field now sold in many variations. + +_* Box sealing tapes: The first type of tape strong enough to reliably seal corrugated shipping boxes, it replaced stapling in most "corrugated shipper" applications. + +_* Commercial graphics films: Plastic films capable of withstanding outdoor environments that could be printed upon and adhered to large surfaces on vehicles such as the sides of trailer trucks. This product line changed the entire approach to outdoor signage. + +Table 10.3 provides profiles of the five LU major product lines and the 16 non-LU major product lines for which we were able to collect data. As can be seen, innovations generated with inputs from lead users are similar in many ways to the major innovations developed by 3M in the past. + +!_ Table 10.3 +Major new product lines (MNPLs) generated by lead-user methods are similar to MNPLs generated by 3M in the past. + +table{~h c4; 55; 15; 15; 15; + +~ +LU MNPLs (n = 5) +Past 3M MNPLs (n = 16) +Significance + +Novelty a compared with competition +9.6 +8.0 +0.21 + +Originality/newness of customer needs addressed^{a}^ +8.3 +7.9 +0.78 + +% market share in year 5 +68% +61% +0.76 + +Estimated sales in year 5 (deflated for forecast error) +146m^{b}^ +$62m^{b}^ +0.04 + +Potential for entire product family^{a}^ +10.0 +9.4 +0.38 + +Operating profit +22% +27% +0.41 + +Probability of success +80% +87% +0.35 + +Strategic importance* +9.6 +8.5 +0.39 + +Intellectual property protection^{a}^ +7.1 +7.4 +0.81 + +Fit with distribution channels^{a}^ +8.8 +8.4 +0.77 + +Fit with manufacturing capabilities^{a}^ +7.8 +6.7 +0.53 + +Fit with strategic plan^{a}^ +9.8 +8.7 +0.32 + +}table + +Source: Lilien et al. 2002, table 4.<:br> +a. Measured on a scale from 1 to 10.<:br> +b. Five-year sales forecasts for all major product lines commercialized in 1994 or later (5 LU and 2 non-LU major product lines) have been deflated by 25% in line with 3M historical forecast error experience (see text). Five-year sales figures for major product lines commercialized before 1994 are actual historical sales data. This data has been converted to 1999 dollars using the Consumer Price Index from the Economic Report of the President (Council of Economic Advisors 2000). + +!_ Discussion + +The performance comparison between lead user and "find a need and fill it" idea-generation projects at 3M showed remarkably strong advantages associated with searching for ideas among lead users in advanced analog fields with needs similar to, but even more extreme than, needs encountered in the intended target market. The direction of this outcome is supported by findings from three other real-world industrial applications of lead user idea-generation methods that studied lead users in the target market but not in advanced analog markets. I briefly describe these three studies next. They each appear to have generated primarily next-generation products--- valuable for firms, but not the basis for radically new major product lines. + +%% + +_* Recall that Urban and von Hippel (1988) tested the relative commercial attractiveness of product concepts developed in the field of computer-aided systems for the design of printed circuit boards (PC-CAD). One of the concepts they tested contained novel features proposed by lead users that had innovated in the PC-CAD field in order to serve in-house need. The attractiveness of the "lead user concept" was then evaluated by a sample of 173 target-market users of PC-CAD systems relative to three other concept choices---one of which was a description of the best system then commercially available. Over 80 percent of the target-market users were found to prefer the concept incorporating the features developed by innovating lead users. Their reported purchase probability for a PC-CAD system incorporating the lead user features was 51 percent, over twice as high as the purchase probability indicated for any other system. The target-market users were also found willing to pay twice as much for a product embodying the lead user features than for PC-CAD products that did not incorporate them. +={Urban, G.;Printed circuit CAD software} + +_* Herstatt and von Hippel (1992) documented a lead user project seeking to develop a new line of pipe hangers---hardware used to attach pipes to the ceilings of commercial buildings. Hilti, a major manufacturer of construction-related equipment and products, conducted the project. The firm introduced a new line of pipe hanger products based on the lead user concept and a post-study evaluation has shown that this line has become a major commercial success for Hilti. +={Herstatt, C.;Pipe hanger hardware} + +_* Olson and Bakke (2001) report on two lead user studies carried out by Cinet, a leading IT systems integrator in Norway, for the firm's two major product areas, desktop personal computers, and Symfoni application GroupWare. These projects were very successful, with most of the ideas incorporated into next-generation products having been collected from lead users. +={Bakke, G.;Olson, E.} + +Active search for lead users that have innovated enables manufacturers to more rapidly commercialize lead user innovations. One might think that an alternative approach would be to identify lead users before they have innovated. Alert manufacturers could then make some prior arrangements to get preferred access to promising user-developed innovations by, for example, purchasing promising lead user organizations. I myself think that such vertical integration approaches are not practical. As was shown earlier, the character and attractiveness of innovations lead users may develop is based in part on the particular situations faced by and information stocks held by individual lead users. User innovation is therefore likely to be a widely distributed phenomenon, and it would be difficult to predict in advance which users are most likely to develop very valuable innovations. +={Manufacturers:lead users and+8} + +How do we square these findings with the arguments, put forth by Christensen (1997), by Slater and Narver (1998), and by others, that firms are likely to miss radical or disruptive innovations if they pay close attention to requests from their customers? Christensen (1997, p. 59, n. 21) writes: "The research of Eric von Hippel, frequently cited as evidence of the value of listening to customers, indicates that customers originate a large majority of new product ideas. . . . The [Christensen] value network framework would predict that the innovations toward which the customers in von Hippel's study led their suppliers would have been sustaining innovations. We would expect disruptive innovations to have come from other sources." +={Christensen, C.+2;Narver, J.;Slater, S.} + +Unfortunately, the above contains a basic misunderstanding of my research findings. My findings, and related findings by others as well, deal with innovations by lead users, not customers, and /{lead users are a much broader category than customers of a specific firm}/. Lead users that generate innovations of interest to manufacturers can reside, as we have seen, at the leading edges of target markets, and also in advanced analog markets. The innovations that some lead users develop are certainly disruptive from the viewpoint of some manufacturers---but the lead users are unlikely to care about this. After all, they are developing products to serve their own needs. Tim Berners-Lee, for example, developed the World Wide Web as a lead user working at CERN---a user of that software. The World Wide Web was certainly disruptive to the business models of many firms, but this was not Berners-Lee's concern. Lead users typically have no reason to lead, mislead, or even contact manufacturers that might eventually benefit from or be disrupted by their innovations. Indeed, the likely absence of a preexisting customer relationship is the reason that manufacturing firms must search for lead user innovations /{outside}/ their customer lists---as 3M did in its lead user idea generation studies. "Listening to the voice of the customer" is /{not}/ the same thing as seeking out and learning from lead users (Danneels 2004). +={Berners-Lee, T.;Danneels, E.;Lead users:3M and;3M Corporation;Custom products:manufacturers and+2|users and+2;Innovation:distributed process of+2|functional sources of+2} + +That basic misunderstanding aside, I do agree with Christensen and others that a manufacturer may well receive mainly requests for sustaining innovations from its /{customers}/. As was discussed in chapter 4, manufacturers have an incentive to develop innovations that utilize their existing capabilities---that are "sustaining" for them. Customers know this and, when considering switching to a new technology, are unlikely to request it from a manufacturer that would consider it to be disruptive: they know that such a manufacturer is unlikely to respond positively. The net result is that manufacturers' inputs from their existing customers may indeed be biased towards requests for sustaining innovations. + +I conclude this chapter by reminding the reader that studies of the sources of innovation show clearly that users will tend to develop some types of innovations but not all. It therefore makes sense for manufacturers to partition their product-development strategies and portfolios accordingly. They may wish, for example, to move away from actual new product development and search for lead users' innovations in the case of functionally novel products. At the same time manufacturers may decide to continue to develop products that do /{not}/ require high-fidelity models of need information and use environments to get right. One notable category of innovations with this characteristic is dimension-of-merit improvements to existing products. Sometimes users state their needs for improved products in terms of dimensions on which improvements are desired---dimensions of merit. As an example, consider that users may say "I want a computer that is as fast and cheap as possible." Similarly, users of medical imaging equipment may say "I want an image that is of as high a resolution as is technically possible." If manufacturers (or users) cannot get to the end point desired by these users right away, they will instead progressively introduce new product generations that move along the dimension of merit as rapidly and well as they can. Their rate of progress is determined by the rate at which /{solution}/ technologies improve over time. This means that sticky solution information rather than sticky need information is central to development of dimension-of-merit improvements. Manufacturers will tend to have the information they need to develop dimension of merit innovations internally. +={Manufacturers:dimensions-of-merit product improvements and;Sticky information:dimensions-of-merit product improvements and|innovation and} + +1~ 11 Application: Toolkits for User Innovation and Custom Design +={Users:innovation and+62;Custom products:manufacturers and+62|toolkits and+62;Manufacturers:innovation and+62;Toolkits+62:innovation and+62;Users:toolkits and+62} + +An improved understanding of the relative innovation capabilities of users and manufacturers can enable designs for more effective joint innovation processes. Toolkits for user innovation and custom design illustrate this possibility. In this new innovation process design, manufacturers actually /{abandon}/ their efforts to understand users' needs accurately and in detail. Instead, they outsource only /{need-related}/ innovation tasks to their users, who are equipped with appropriate toolkits. This process change differs from the lead user search processes discussed earlier in an interesting way. Lead user searchs identify existing innovations, but do nothing to change the conditions affecting user-innovators at the time a new product or service is being developed. Toolkits for users, in contrast, do change the conditions potential innovators face. By making innovation cheaper and quicker for users, they can increase the volume of user innovation. They also can channel innovative effort into directions supported by toolkits. +={Toolkits:characteristics of+3} + +In this chapter, I first explore why toolkits are useful. Next, I describe how to create an appropriate setting for toolkits and how toolkits function in detail. Finally, I discuss the conditions under which toolkits are likely to be of most value. + +!_ Benefits from Toolkits + +Toolkits for user innovation and design are integrated sets of product-design, prototyping, and design-testing tools intended for use by end users. The goal of a toolkit is to enable non-specialist users to design high-quality, producible custom products that exactly meet their needs. Toolkits often contain "user-friendly" features that guide users as they work. They are specific to a type of product or service and a specific production system. For example, a toolkit provided to customers interested in designing their own, custom digital semiconductor chips is tailored precisely for that purpose--- it cannot be used to design other types of products. Users apply a toolkit in conjunction with their rich understanding of their own needs to create a preliminary design, simulate or prototype it, evaluate its functioning in their own use environment, and then iteratively improve it until they are satisfied. +={Toolkits:manufacturers and+58|user-friendly tools for;Information asymmetries+10} + +A variety of manufacturers have found it profitable to shift the tasks of custom product design to their customers along with appropriate toolkits for innovation. Results to date in the custom semiconductor field show development time cut by 2/3 or more for products of equivalent complexity and development costs cut significantly as well via the use of toolkits. In 2000, more than $15 billion worth of custom integrated circuits were sold that had been designed with the aid of toolkits---often by circuit users---and produced in the "silicon foundries" of custom semiconductor manufacturers such as LSI (Thomke and von Hippel 2002). International Flavors and Fragrances (IFF), a global supplier of specialty flavors to the food industry, has built a toolkit that enables its customers to modify flavors for themselves, which IFF then manufactures. In the materials field, GE provides customers with Web-based tools for designing better plastic products. In software, a number of consumer product companies provide toolkits that allow people to add custom-designed modules to their standard products. For example, Westwood Studios provides its customers with toolkits that enable them to design important elements of their own video games (Jeppesen 2005). +={Jeppesen, L.;Thomke, S.;von Hippel, E.+9;Toolkits:GE and|International Flavors and Fragrances and} + +The primary function of toolkits for user design is to co-locate product-development and service-development tasks with the sticky information needed to execute them. Need-intensive tasks involved in developing a particular type of product or service are assigned to users, along with the tools needed to carry those tasks out. At the same time, solution-intensive tasks are assigned to manufacturers. +={Toolkits:users and+55|sticky information and+8;Sticky information:toolkits and+8} + +As was discussed in chapter 5, problem solving in general, and product and service development in particular, is carried out via repeated cycles of learning by trial and error. When each cycle of a trial-and-error process requires access to sticky information located at more than one site, colocation of problem-solving activity with sticky information is achieved by repeatedly shifting problem solving to the relevant sticky information sites as product development proceeds. +={Trial-and-error problem solving;Toolkits:trial-and-error learning in} + +For example, suppose that need information is sticky at the site of the potential product user and that solution information is sticky at the site of the manufacturer. A user may initiate a development project by drawing on local user-need information to specify a desired new product or service (figure 11.1). This information is likely to be sticky at least in part. Therefore, the user, even when exerting best efforts, will supply only partial and partially correct need and use-context information to the manufacturer. The manufacturer then applies its solution information to the partially accurate user information and creates a prototype that it thinks is responsive to the need and sends it to the user for testing. If the prototype is not satisfactory (and it often is not), the product is returned to the manufacturer for refinement. Typically, as empirical studies show (Tyre and von Hippel 1997; Kristensen 1992), sites of sticky need and / or solution information are repeatedly revisited as problem solvers strive to reach a satisfactory product design (figure 11.2). +={Kristensen, P.;Tyre, M.} + +%% Figure 11.1 +% Toolkits 149 +% Manufacturer +% activity +% User +% activity +% User iterates until satisfied. +% User draws on local need +% information to specify +% desired product or service. +% User draws on local need and +% context of use information to +% evaluate prototype. +% User changes specifications as +% needed. +% Manufacturer draws on +% local capability information +% to develop prototype +% responsive to specifications. +% Manufacturer iterates until +% user is satisfied. +% User-manufacturer +% boundary +% Figure 11.1 +% A pattern of problem solving often encountered in product and service development. + + +{di_evh_f11-1.png}image + +Figure 11.1 + +%% Figure 11.2 +% 0 1 2 3 4 5 6 +% 7 +% 0 +% 22 +% 7 +% 15 +% 30 +% Number of shifts +% Percent +% of +% sample +% Figure 11.2 +% Shifts in the location of problem solving from user site to lab observed during process +% machine debugging. Source: Tyre and von Hippel 1993, figure 2. + +{di_evh_f11-2.png}image + +Figure 11.2 + +Explicit management of user-manufacturer iterations has been built into a number of modern product-development processes. In the rapid application development method (Martin 1991), manufacturers learn to respond to initial user need inputs by quickly developing a partial prototype of a planned product containing the features likely to be most important to users. They deliver this to users, who apply it in their own setting to clarify their needs. Users then relay requests for changes or new features to the product developers, and this process is repeated until an acceptable fit between need and solution is found. Such iteration has been found to "better satisfy true user requirements and produce information and functionality that is more complete, more accurate, and more meaningful" (Connell and Shafer 1989). +={Connell, J.;Martin, J.;Shafer, L.} + +Even with careful management, however, iterative shifts in problem solving between users and manufacturer-based developers involve significant coordination costs. For example, a manufacturer's development team may be assigned to other tasks while it waits for user feedback, and so will not be immediately able to resume work on a project when needed feedback is received. It would be much better still to eliminate the need for cross-boundary iteration between user and manufacturer sites during product development, and this is what toolkits for user design are intended to do. The basic idea behind toolkits for user design is, as was mentioned earlier, to partition an overall product-development task into subproblems, each drawing on only one locus of sticky information. Then, each task is assigned to the party already having the sticky information needed to solve it. In this approach, both the user and the manufacturer still engage in iterative, trial-and-error problem solving to solve the problems assigned to them. But this iteration is internal to each party---no costly and time-consuming cross-boundary iteration between user and manufacturer is required (von Hippel 1998, 2001; Thomke and von Hippel 2002; von Hippel and Katz 2002). +={Katz, R.;Thomke, S.;Task partitioning+10} + +To appreciate the major advantage in problem-solving speed and efficiency that concentrating problem solving within a single locus can create, consider a familiar example: the contrast between conducting financial strategy development with and without "user-operated" financial spreadsheet software: + +_* Before the development of easy-to-use financial spreadsheet programs such as Lotus 1-2-3 and Microsoft Excel, a firm's chief financial officer might have carried out a financial strategy development exercise as follows. First, the CFO would have asked an assistant to develop an analysis incorporating a list of assumptions. A few hours or days might elapse before the result was delivered. Then the CFO would use her rich understanding of the firm and its goals to study the analysis. She would typically almost immediately spot some implications of the patterns developed, and would then ask for additional analyses to explore these implications. The assistant would take the new instructions and go back to work while the CFO switched to another task. When the assistant returned, the cycle would repeat until a satisfactory outcome was found. +={Microsoft} + +_* After the development of financial spreadsheet programs, a CFO might begin an analysis by asking an assistant to load up a spreadsheet with corporate data. The CFO would then "play with" the data, trying out various ideas and possibilities and "what if" scenarios. The cycle time between trials would be reduced from days or hours to minutes. The CFO's full, rich information would be applied immediately to the effects of each trial. Unexpected patterns---suggestive to the CFO but often meaningless to a less knowledgeable assistant---would be immediately identified and explored further. + +It is generally acknowledged that spreadsheet software that enables expert users to "do it themselves" has led to better outcomes that are achieved faster (Levy 1984; Schrage 2000). The advantages are similar in the case of product and service development. Learning by doing via trial and error still occurs, of course, but the cycle time is much faster because the complete cycle of need-related learning is carried out at a single (user) site earlier in the development process. +={Levy, S.;Schrage, M.;Trial-and-error problem solving+15} + +!_ Repartitioning of Development Tasks +={Toolkits:task partitioning+5} + +To create the setting for a toolkit, one must partition the tasks of product development to concentrate need-related information in some and solution-related information in others. This can involve fundamental changes to the underlying architecture of a product or service. As illustration, I first discuss the repartioning of the tasks involved in custom semiconductor chip development. Then, I show how the same principles can be applied in the less technical context of custom food design. + +Traditionally, fully customized integrated circuits were developed in an iterative process like that illustrated in figure 11.1. The process began with a user specifying the functions that the custom chip was to perform to a manufacturer of integrated circuits. The chip would then be designed by manufacturer employees, and an (expensive) prototype would be produced and sent to the user. Testing by the user would typically reveal faults in the chip and/or in the initial specification, responsive changes would be made, a new prototype would be built. This cycle would continue until the user was satisfied. In this traditional manufacturer-centered development process, manufacturers' development engineers typically incorporated need-related information into the design of both the fundamental elements of a circuit--- such as transistors, and the electrical "wiring" that interconnected those elements into a functioning circuit. + +The brilliant insight that allowed custom design of integrated circuits to be partitioned into solution-related and need-related subtasks was made by Mead and Conway (1980). They determined that the design of a digital chip's fundamental elements, such as its transistors, could be made standard for all circuits. This subtask required rich access to the manufacturer's sticky solution information regarding how semiconductors are fabricated, but did not require detailed information on users' specific needs. It could therefore be assigned to manufacturer-based chip-design and chip-fabrication engineers. It was also observed that the subtask of interconnecting standard circuit elements into a functioning integrated circuit required only sticky, need-related information about a chip's function---for example, whether it was to function as a microprocessor for a calculator or as a voice chip for a robotic dog. This subtask was therefore assigned to users along with a toolkit that enabled them to do it properly. In sum, this new type of chip, called a gate array, had a novel architecture created specifically to separate the problem-solving tasks requiring access to a manufacturer's sticky solution information from those requiring access to users' sticky need information. +={Conway, C.;Mead, L.;Toolkits:characteristics of} + +The same basic principle can be illustrated in a less technical context: food design. In this field, manufacturer-based designers have traditionally undertaken the entire job of developing a novel food, and so they have freely blended need-specific design into any or all of the recipe-design elements wherever convenient. For example, manufacturer-based developers might find it convenient to create a novel cake by both designing a novel flavor and texture for the cake body, and designing a complementary novel flavor and texture into the frosting. However, it is possible to repartition these same tasks so that only a few draw on need-related information, and these can then be more easily transferred to users. + +The architecture of the pizza pie illustrates how this can be done. Many aspects of the design of a pizza, such as the dough and the sauce, have been made standard. User choice has been restricted to a single task: the design of toppings. In other words, all need-related information that is unique to a particular user has been linked to the toppings-design task only. Transfer of this single design task to users can still potentially offer creative individuals a very large design space to play in (although pizza shops typically restrict it sharply). Any edible ingredient one can think of, from eye of newt to edible flowers, is a potential topping component. But the fact that need-related information has been concentrated within only a single product-design task makes it much easier to transfer design freedom to the user. + +!_ The Functionality of Toolkits +={Toolkits:characteristics of+2} + +If a manufacturer outsources need-intensive design tasks to users, it must also make sure that users have the information they need to carry out those tasks effectively. This can be done via a toolkit for user innovation. Toolkits are not new as a general concept---every manufacturer equips its own engineers with a set of tools suitable for developing the type of products or services it wishes to produce. Toolkits for users also are not new---many users have personal collections of tools that they have assembled to help them create new items or modify standard ones. For example, some users have woodworking tools ranging from saws to glue which can be used to create or modify furniture---in very novel or very standard ways. Others may have a kit of software tools needed to create or modify software. What is new, however, is integrated toolkits enabling users to create /{and}/ test designs for custom products or services that can then be produced "as is" by manufacturers. + +Present practice dictates that a high-quality toolkit for user innovation will have five important attributes. (1) It will enable users to carry out complete cycles of trial-and-error learning. (2) It will offer users a solution space that encompasses the designs they want to create. (3) It will be user friendly in the sense of being operable with little specialized training. (4) It will contain libraries of commonly used modules that users can incorporate into custom designs. (5) It will ensure that custom products and services designed by users will be producible on a manufacturer's' production equipment without modification by the manufacturer. + +!_ Learning through Trial and Error +={Toolkits:trial-and-error learning in+5} + + +It is crucial that user toolkits for innovation enable users to go through complete trial-and-error cycles as they create their designs. Recall that trial-and-error problem solving is essential to product development. For example, suppose that a user is designing a new custom telephone answering system for her firm, using a software-based computer-telephony integration (CTI) design toolkit provided by a vendor. Suppose also that the user decides to include a new rule to "route all calls of X nature to Joe" in her design. A properly designed toolkit would allow her to temporarily place the new rule into the telephone system software, so that she could actually try it out (via a real test or a simulation) and see what happened. She might discover that the solution worked perfectly. Or she might find that the new rule caused some unexpected form of trouble---for example, Joe might be flooded with too many calls---in which case it would be "back to the drawing board" for another design and another trial. + +In the same way, toolkits for innovation in the semiconductor design field allow users to design a circuit that they think will meet their needs and then test the design by "running" it in the form of a computer simulation. This quickly reveals errors that the user can then quickly and cheaply fix using toolkit-supplied diagnostic and design tools. For example, a user might discover by testing a simulated circuit design that a switch needed to adjust the circuit had been forgotten and make that discovery simply by trying to make a needed adjustment. The user could then quickly and cheaply design in the needed switch without major cost or delay. + +One can appreciate the importance of giving the user the capability for trial-and-error learning by doing in a toolkit by thinking about the consequences of not having it. When users are not supplied with toolkits that enable them to draw on their local, sticky information and engage in trial-and-error learning, they must actually order a product and have it built to learn about design errors---typically a very costly and unsatisfactory way to proceed. For example, automobile manufacturers allow customers to select a range of options for their cars, but they do not offer the customer a way to learn during the design process and before buying. The cost to the customer is unexpected learning that comes too late: "That wide-tire option did look great in the picture. But now that the car has been delivered, I discover that I don't like the effect on handling. Worse, I find that my car is too wide to fit into my garage!" + +Similar disasters are often encountered by purchasers of custom computers. Many custom computer manufacturers offer a website that allows users to "design your own computer online." However, these websites do not allow users to engage in trial-and-error design. Instead, they simply allow users to select computer components such as processor chips and disk drives from lists of available options. Once these selections have been made, the design transaction is complete and the computer is built and shipped. The user has no way to test the functional effects of these choices before purchase and first field use---followed by celebration or regret. + +In contrast, a sophisticated toolkit for user innovation would allow the user to conduct trial-and-error tests to evaluate the effects of initial choices made and to improve on them. For example, a computer design site could add this capability by enabling users to actually test and evaluate the hardware configuration they specify on their own programs and computing tasks before buying. To do this, the site might, for example, provide access to a remote computer able to simulate the operation of the computer that the user has specified, and provide performance diagnostics and related choices in terms meaningful to the user (e.g., "If you add option x at cost y, the time it takes to complete your task will decrease by z seconds"). The user could then modify or confirm initial design choices according to trade-off preferences only he or she knows. + +!_ Appropriate Solution Spaces +={Toolkits:solution spaces and+3} + +Economical production of custom products and services is achievable only when a custom design falls within the pre-existing capability and degrees of freedom built into a particular manufacturer's production system. My colleagues and I call this the /{solution space}/ offered by that system. A solution space may vary from very large to small, and if the output of a toolkit is tied to a particular production system, then the design freedom that a toolkit can offer a user will be accordingly large or small. For example, the solution space offered by the production process of a manufacturer of custom integrated circuits offers a huge solution space to users---it will produce any combination of logic elements interconnected in any way that a user-designer might desire, with the result that the user can invent anything from a novel type of computer processor to a novel silicon organism within that space. However, note that the semiconductor production process also has stringent limits. It will only implement product designs expressed in terms of semiconductor logic---it will not implement designs for bicycles or houses. Also, even within the arena of semiconductors, it will only be able to produce semiconductors that fit within a certain range with respect to size and other properties. Another example of a production system offering a very large solution space to designers---and, potentially to user-designers via toolkits---is the automated machining center. Such a device can basically fashion any shape out of any machinable material that can be created by any combination of basic machining operations such as drilling and milling. As a consequence, toolkits for innovation intended to create designs that can be produced by automated machining centers can offer users access to that very large solution space. + +Large solution spaces can typically be made available to user-designers when production systems and associated toolkits allow users to manipulate and combine relatively basic and general-purpose building blocks and operations, as in the examples above. In contrast, small solution spaces typically result when users are only allowed to combine a relatively few pre-designed options. Thus, users who want to design their own custom automobiles are restricted to a relatively small solution space: they can only make choices from lists of options regarding such things as engines, transmissions, and paint colors. Similarly, purchasers of eyeglasses are restricted to combining "any frame from this list" of pre-designed frames, with "any lens type from that list" of pre-designed options. + +The reason producers of custom products or services enforce constraints on the solution space that user-designers may use is that custom products can be produced at reasonable prices only when custom user designs can be implemented by simply making low-cost adjustments to the production process. This condition is met within the solution space on offer. However, responding to requests that fall outside that space will require small or large additional investments by the manufacturer. For example, a producer of integrated circuits may have to invest many millions of dollars and rework an entire production process in order to respond to a customer's request for a larger chip that falls outside the solution space associated with its present production equipment. + +!_ User-Friendly Tools +={Toolkits:user-friendly tools for+6} + +User toolkits for innovation are most effective and successful when they are made "user friendly" by enabling users to use the skills they already have and to work in their own customary and well-practiced design language. This means that users don't have to learn the---typically different---design skills and language customarily used by manufacturer-based designers, and so they will require much less training to use the toolkit effectively. + +For example, in the case of custom integrated circuit design, the users of toolkits are typically electrical engineers who are designing electronic systems that will incorporate custom semiconductor chips. The digital design language normally used by electrical engineers is Boolean algebra. Therefore, user-friendly toolkits for custom semiconductor design are provided that allow toolkit users to design in this language. That is, users can create a design, test how it works, and make improvements using only their own, customary design language. At the conclusion of the design process, the toolkit then translates the user's logical design into the design inputs required by the semiconductor manufacturer's production system. + +A design toolkit based on a language and skills and tools familiar to the user is only possible to the extent that the user /{has}/ familiarity with some appropriate and reasonably complete language and set of skills and tools. Interestingly, this is the case more frequently than one might initially suppose, at least in terms of the /{function}/ that a user wants a product or service to perform---because functionality is the face that the product or a service presents to the user. (Indeed, an expert user of a product or service may be much more familiar with that functional face than manufacturer-based experts.) Thus, the user of a custom semiconductor is the expert in what he or she wants that custom chip to /{do}/, and is skilled at making complex tradeoffs among familiar functional elements to achieve a desired end: "If I increase chip clock speed, I can reduce the size of my cache memory and. . . ." + +As a less technical example, consider the matter of designing a custom hairstyle. There is certainly a great deal of information known to hairstylists that even an expert user may not know, such as how to achieve a certain look by means of layer cutting, or how to achieve a certain streaked color pattern by selectively dying some strands of hair. However, an expert user is often very well practiced at the skill of examining the shape of his or her face and hairstyle as reflected in a mirror, and visualizing specific improvements that might be desirable in matters such as curls, shape, or color. In addition, the user will be very familiar with the nature and functioning of everyday tools used to shape hair, such as scissors and combs. + +A user-friendly toolkit for hairstyling innovation can be built upon these familiar skills and tools. For example, a user can be invited to sit in front of a computer monitor, and study an image of her face and hairstyle as captured by a video camera. Then, she can select from a palette of colors and color patterns offered on the screen, can superimpose the effect on her existing hairstyle, can examine it, and can repeatedly modify it in a process of trial-and-error learning. Similarly, the user can select and manipulate images of familiar tools, such as combs and scissors, to alter the image of the length and shape of her own hairstyle as projected on the computer screen, can study and further modify the result achieved, and so forth. Note that the user's new design can be as radically new as is desired, because the toolkit gives the user access to the most basic hairstyling variables and tools such as hair color and scissors. When the user is satisfied, the completed design can be translated into technical hairstyling instructions in the language of a hairstyling specialist---the intended production system in this instance. + +In general, steady improvements in computer hardware and software are enabling toolkit designers to provide information to users in increasingly friendly ways. In earlier days, information was often provided to users in the form of specification sheets or books. The user was then required to know when a particular bit of information was relevant to a development project, find the book, and look it up. Today, a large range of potentially needed information can be embedded in a computerized toolkit, which is programmed to offer the user items of information only if and as a development being worked on makes them relevant. + +!_ Module Libraries +={Toolkits:module libraries for+1} + +Custom designs seldom are novel in all their parts. Therefore, a library of standard modules will be a valuable part of a toolkit for user innovation. Provision of such standard modules enables users to focus their creative work on those aspects of their product or service designs that cannot be implemented via pre-designed options. For example, architects will find it very useful to have access to a library of standard components, such as a range of standard structural support columns with pre-analyzed structural characteristics, that they can incorporate into their novel building designs. Similarly, users who want to design custom hairstyles will often find it helpful to begin by selecting a hairstyle from a toolkit library. The goal is to select a style that has some elements of the desired look. Users can then proceed to develop their own desired style by adding to and subtracting from that starting point. + +!_ Translating Users' Designs for Production + +The "language" of a toolkit for user innovation must be convertible without error into the language of the intended production system at the conclusion of the user's design work. If it is not, the entire purpose of the toolkit will be lost---because a manufacturer receiving a user design will essentially have to do the design work over again. Error-free translation need not emerge as a major problem---for example, it was never a major problem during the development of toolkits for integrated circuit design, because both chip designers and chip producers already used a language based on digital logic. In contrast, in some fields, translating from the design language preferred by users to the language required by intended production systems can be /{the}/ central problem in toolkit design. As an illustration, consider a recent toolkit test project managed by Ernie Gum, the Director of Food Product Development for the USA FoodServices Division of Nestlé. +={Gum, E.+5;Toolkits:Nestlé and+5} + +One major business of Nestlé FoodServices is producing custom food products, such as custom Mexican sauces, for major restaurant chains. Custom foods of this type have traditionally been developed by or modified by the chains' executive chefs, using what are in effect design and production toolkits taught by culinary schools: recipe development procedures based on food ingredients available to individuals and restaurants, and processed with restaurant-style equipment. After using their traditional toolkits to develop or modify a recipe for a new menu item, executive chefs call in Nestlé Foodservices or another custom food producer and ask that firm to manufacture the product they have designed---and this is where the language translation problem rears its head. + +There is no error-free way to translate a recipe expressed in the language of a traditional restaurant-style culinary toolkit into the language required by a food-manufacturing facility. Food factories must use ingredients that can be obtained in quantity at consistent quality. These are not the same as, and may not taste quite the same as, the ingredients used by the executive chef during recipe development. Also, food factories use volume production equipment, such as huge-steam-heated retorts. Such equipment is very different from restaurant-style stoves and pots and pans, and it often cannot reproduce the cooking conditions created by the executive chef on a stove-top---for example, very rapid heating. Therefore, food-production factories cannot simply produce a recipe developed by or modified by an executive chef "as is" under factory conditions---it will not taste the same. + +As a consequence, even though an executive chef creates a prototype product using a traditional chef's toolkit, food manufacturers find most of that information---the information about ingredients and processing conditions---useless because it cannot be straightforwardly translated into factory-relevant terms. The only information that can be salvaged is the information about taste and texture contained in the prototype. And so, production chefs carefully examine and taste the customer's custom food prototype, then try to make something that tastes the same using factory ingredients and methods. But an executive chef's taste buds are not necessarily the same as production chef taste buds, and so the initial factory version---and the second and the third---is typically not what the customer wants. So the producer must create variation after variation until the customer is finally satisfied. + +To solve the translation problem, Gum created a novel toolkit of pre-processed food ingredients to be used by executive chefs during food development. Each ingredient in the toolkit was the Nestlé factory version of an ingredient traditionally used by chefs during recipe development: That is, it was an ingredient commercially available to Nestlé that had been processed as an independent ingredient on Nestlé factory equipment. Thus, a toolkit designed for developing Mexican sauces would contain a chili puree ingredient processed on industrial equipment identical to that used to produce food in commercial-size lots. (Each ingredient in such a toolkit also contains traces of materials that will interact during production---for example, traces of tomato are included in the chili puree---so that the taste effects of such interactions will also be apparent to toolkit users.) + +Chefs interested in using the Nestlé toolkit to prototype a novel Mexican sauce would receive a set of 20--30 ingredients, each in a separate plastic pouch. They would also be given instructions for the proper use of these ingredients. Toolkit users would then find that each component differs slightly from the fresh components he or she is used to. But such differences are discovered immediately through direct experience. The chef can then adjust ingredients and proportions to move to the desired final taste and texture that is desired. When a recipe based on toolkit components is finished, it can be immediately and precisely reproduced by Nestlé factories--- because now the executive chef is using the same language as the factory. In the Nestlé case, field testing by Food Product Development Department researchers showed that adding the error-free translation feature to toolkit-based design by users reduced the time of custom food development from 26 weeks to 3 weeks by eliminating repeated redesign and refinement interactions between Nestlé and purchasers of its custom food products. + +!_ Discussion + +A toolkit's success in the market is significantly correlated with that toolkit's quality and with industry conditions. Thus, Prügl and Franke (2005) studied the success of 100 toolkits offered in a single industry: computer gaming. They found that success, evaluated by independent experts, was significantly correlated with the quality of execution of the attributes of toolkits that have been discussed in this chapter. That is, success was found to be significantly affected by the quality of trial-and-error learning enabled by a toolkit, by the quality of fit of the solution space offered to users' design problems, by the user friendliness of the tools provided, and by the quality of module libraries offered with the toolkit. Schreier and Franke (2004) also obtained information on the importance of toolkit quality in a study of the value that users placed on consumer products (scarves, T shirts, cell phone covers) customized with a simple, manufacturer-supplied toolkit. They found user willingness to pay for custom designs, as measured by Vickrey auctions, was significantly negatively affected by the difficulty of creating custom designs with a toolkit. In contrast, willingness to pay was significantly positively affected by enjoyment experienced in using a toolkit. +={Franke, N.;Prügl, R.;Schreier, M.;Trial-and-error problem solving;Custom products:heterogeneity of user needs and+3;User need+3} + +With respect to industry and market conditions, the toolkit-for-user innovation approach to product design is likely to be most appealing to toolkit suppliers when the heterogeneous needs of /{many}/ users can be addressed by a standard solution approach encoded in a toolkit. This is because it can be costly to encode all the solution and production information relevant to users' design decisions. For example, a toolkit for custom semiconductor design must contain information about the semi-conductor production process needed to ensure that product designs created by users are in fact producible. Encoding such information is a one-time cost, so it makes the best economic sense for solution approaches that many will want to use. + +Toolkits for user innovation are not an appropriate solution for all product needs, even when heterogeneous needs can be addressed by a common solution approach. Specifically, toolkits will not be the preferred approach when the product being designed requires the highest achievable performance. Toolkits incorporate automated design rules that cannot, at least at present, translate designs into products or software as skillfully as a human designer can. For example, a design for a gate array generated with a toolkit will typically take up more physical space on a silicon chip than would a fully custom-developed design of similar complexity. Even when toolkits are on offer, therefore, manufacturers may continue to design certain products (those with difficult technical demands) while customers take over the design of others (those involving complex or rapidly evolving user needs). + +Toolkits can be designed to offer a range of capabilities to users. At the high end, with toolkits such as those used to design custom integrated circuits, users can truly innovate, creating anything implementable in digital electronics, from a dishwasher controller to a novel supercomputer or form of artificial life. At the low end, the product configurators commonly offered by manufacturers of mass-customized products enable, for example, a watch purchaser to create a custom watch by selecting from lists of pre-designed faces, hands, cases, and straps. (Mass-customized production systems can manufacture a range of product variations in single-unit quantities at near mass-production costs (Pine 1993). In the United States, production systems used by these manufacturers are generally based on computerized production equipment.) +={Pine, J.} + +The design freedom provided by toolkits for user innovation may not be of interest to all or even to most users in a market characterized by heterogeneous needs. A user must have a great enough need for something different to offset the costs of putting a toolkit to use for that approach to be of interest. Toolkits may therefore be offered only to a subset of users. In the case of software, toolkits may be provided to all users along with a standard, default version of the product or service, because the cost of delivering the extra software is essentially zero. In such a case, the toolkit's capability will simply lie unused in the background unless and until a user has sufficient incentive to evoke and employ it. +={Lead users:toolkits and+3;Toolkits:lead users and+3} + +Provision of toolkits to customers can be a complement to lead user idea-generation methods for manufacturers. Some users choosing to employ a toolkit to design a product precisely right for their own needs will be lead users, whose present strong need foreshadows a general need in the market. Manufacturers can find it valuable to identify and acquire the generally useful improvements made by lead users of toolkits, and then supply these to the general market. For this reason, manufacturers may find it valuable implement toolkits for innovation even if the portion of the target market that can directly use them is relatively small. + +Toolkits can affect existing business models in a field in ways that may or may not be to manufacturers' competitive advantage in the longer run. For example, consider that many manufacturers of products and services profit from both their design capabilities and their production capabilities. A switch to user-based customization via toolkits can affect their ability to do this over the long term. Thus, a manufacturer that is early in introducing a toolkit approach to custom product or service design may initially gain an advantage by tying that toolkit to its particular production facility. However, when toolkits are made available to customer designers, this tie often weakens over time. Customers and independent tool developers can eventually learn to design toolkits applicable to the processes of several manufacturers. Indeed, this is precisely what has happened in the custom integrated circuit industry. The toolkits revealed to users by the initial innovator, LSI, and later by rival producers were producer-specific. Over time, however, Cadance and other specialist toolkit supply firms emerged and developed toolkits that could be used to make designs producible by a number of vendors. The end result is that manufacturers that previously benefited from selling their product-design skills and their production skills can be eventually forced by the shifting of design tasks to customers via toolkits to a position of benefiting from their production skills only. + +Manufacturers that think long-term disadvantages may accrue from a switch to toolkits for user innovation and design will not necessarily have the luxury of declining to introduce toolkits. If any manufacturer introduces a high-quality toolkit into a field favoring its use, customers will tend to migrate to it, forcing competitors to follow. Therefore, a firm's only real choice in a field where conditions are favorable to the introduction of toolkits may be whether to lead or to follow. + +1~ 12 Linking User Innovation to Other Phenomena and Fields + +This final chapter is devoted to describing links between user-centered innovation and other phenomena and literatures. Of course, innovation writ large is related to anything and everything, so the phenomena and the literatures I will discuss here are only those hanging closest on the intellectual tree. My goal is to enable interested readers to migrate to further branches as they wish, assisted by the provision of a few important references. With respect to phenomena, I will first point out the relationship of user innovation to /{information}/ communities---of which user innovation communities are a subset. With respect to related fields, I begin by linking user-centric innovation phenomena explored in this book to the literature on the economics of knowledge, and to the competitive advantage of nations. Next I link it to research on the sociology of technology. Finally, I point out how findings regarding user innovation could---but do not yet---link to and complement the way that product development is taught to managers. +={Information commons;Information communities;Product development;Technical communities} + +!_ Information Communities +={Information commons+8;Information communities+8} + +Many of the considerations I have discussed with respect to user innovation communities apply to /{information}/ communities as well---a much more general category of which user innovation communities are a subset. I define information communities as communities or networks of individuals and/or organizations that rendezvous around an information commons, a collection of information that is open to all on equal terms. +={Technical communities+1} + +In close analogy to our discussions of innovation communities, I propose that commons-based information communities or networks will form when the following conditions hold: (1) Some have information that is not generally known. (2) Some are willing to freely reveal what they know. (3) Some beyond the information source have uses for what is revealed. On an intuitive basis, one can immediately see that these conditions are often met. Of course, people and firms know different things. Of course there are many things that one would not be averse to freely revealing; and of course others would often be interested in what is freely revealed. After all, as individuals we all regularly freely reveal information not generally known to people who ask, and presumably these people value at least some of the information we provide. +={Free revealing of innovation information:in information communities+3} + +The economics of information communities can be much simpler than that of the user innovation communities discussed earlier, because valuable proprietary information is often not at center stage. When the service provided by information communities is to offer non-proprietary "content" in a more convenient and accessible form, one need consider only the costs and benefits associated with information diffusion. One need not also consider potential losses associated with the free revealing of proprietary innovation-related information. + +It is likely that information communities are getting steadily more pervasive for the same reasons that user innovation communities are: the costs of diffusing information are getting steadily lower as computing and communication technologies improve. As a result, information communities may have a rapidly increasing impact on the economy and on the landscape of industry. They are and will be especially empowering to fragmented groups, whose members may for the first time gain low-cost access to a great deal of rich and fresh information of mutual interest. As is the case for user innovation networks, information networks can actually store content that participants freely reveal and make it available for free downloading. (Wikipedia is an example of this.) And/or, information networks can function to link information seekers and information holders rather than actually storing information. In the latter case, participants post to the network, hoping that someone with the requested information will spot their request and provide an answer (Lakhani and von Hippel 2003). Prominent examples can be found in the medical field in the form of specialized websites where patients with relatively rare conditions can for the first time find each other and also find specialists in those conditions. Patients and specialists who participate in these groups can both provide and get access to information that previously was scattered and for most practical purposes inaccessible. +={Lakhani, K;Wikipedia;von Hippel, E.} + +Just as is the case in user innovation groups, open information communities are developing rapidly, and the behaviors and infrastructure needed for success are being increasingly learned and codified. These communities are by no means restricted to user-participants. Thus, both patients and doctors frequently participate in medical information communities. Also, information communities can be run by profit-making firms and/or on a non-profit basis for and by information providers and users themselves--- just as we earlier saw was the case with innovation communities. Firms and users are developing many versions of open information communities and testing them in the market. As an example of a commercially supported information commons, consider e-Bay, where information is freely revealed by many under a structure provided by a commercial firm. The commercial firm then extracts a profit from commissions on transactions consummated between information providers and information seekers. As an example of an information community supported by users themselves, again consider Internet sites specializing in specific diseases---for example, childrenfacingillness.com. +={Marketing research+1} + +Information communities can have major effects on established ways of doing business. For example, markets become more efficient as the information provided to transaction participants improves. Thus, product and service manufacturers benefit from good information on the perceptions and preferences of potential buyers. Similarly, product and service purchasers benefit from good information on the characteristics of the various offerings in the market. Traditionally, firms have collected information on users' needs and on products' characteristics by means of face-to-face interviewing and (in the case of mass markets) questionnaires. Similar information of high quality now can be collected nearly without cost and can be posted on special Internet sites by users themselves and/or by for-profit enterprises. Dellarocas, Awad, and Zhang (2004) show that volunteered online movie reviews provide information that is just as accurate as that collected by surveys of representative samples of respondents. This emerging new approach to data aggregation will clearly affect the established business models of firms specializing in information collection, with websites like www.ciao.co.uk illustrating new possibilities. If the quality of information available to transaction participants goes up and the information price is low, transaction quality should go up. With the aid of online product-evaluation sites, it is likely that consumers will be able to apply much better information even to small buying decisions, such as the choice of a restaurant for tonight's dinner. +={Awad, N.;Dellarocas C.;Zhang, X.} + +What Paul David and colleagues call "open science" is a type of information community that is closely related to the innovation communities discussed earlier (David 1992; Dasgupta and David 1994; David 1998). Free revealing of findings is, of course, a characteristic of modern science. Academic scientists publish regularly and so freely reveal information that may have high proprietary value. This raises the same question explored in the case of innovation communities: Why, in view of the potential of free ridership, do scientists freely reveal the information they have developed at private cost? The answer overlaps with but also differs from the answers provided in the case of free revealing of proprietary innovations by innovation users. With respect to similarities, sociologists of science have found that reputation among peers is important to scientists, and that priority in the discovery of new knowledge is a major component of reputation. Because of the importance of priority, scientists generally rush their research projects to completion and then rush to freely reveal their new findings. This dynamic creates a great advantage from the point of view of social welfare (Merton 1973). +={Dasgupta, P.;David, P.;Merton, Robert;Free revealing of innovation information:in information communities+1;Intellectual property rights:information communities and;Users:free revealing by+1|information communities and+1} + +With respect to major differences, it is public policy in many countries to subsidize research with public funds. These policies are based on the assumption that only inadequate amounts of scientific research can be drawn forth by reputational inducements alone. Recall that, in contrast, innovations developed and freely revealed by innovation users are not subsidized from any source. Users, unlike "scientists," by definition have a personal or corporate use for the innovation-related knowledge they generate. This additional source of private reward may explain why user innovation communities can flourish without subsidy. +={Knowledge, production and distribution of} + +!_ The Economics of Knowledge +={Knowledge, production and distribution of+7;Users:knowledge and+7} + +In this field, Foray (2004) provides a rich road map regarding the economics of knowledge and the central role played by users. Foray argues that the radical changes in information and communication technologies (ICT) are creating major changes in the economics of knowledge production and distribution. Economists have traditionally reduced knowledge production to the function of research and development, defined as the activity specifically devoted to invention and innovation. Starting with Machlup (1962), economists also have identified the knowledge-based economy as consisting of specialized sectors focused on activities related to communication, education, the media, and computing and information-related services. Foray argues that these simplifications, although providing a rationale for a way to measure knowledge-generation activities, were never appropriate and now are totally misleading. +={Machlup, F.;Foray, D.+2} + +Knowledge generation, Foray says, is now a major activity across all industrial sectors and is by no means restricted to R&D laboratories: we are in the age of the knowledge economy. He makes a central distinction between R&D that is conducted in laboratories remote from doing, and learning by doing at the site of production. He argues that both are important, and have complementary advantages and drawbacks. Laboratory research can ignore some of the complexities involved in production in search of basic understanding. Learning by doing has the contrasting advantage of being in the full fidelity of the real production process. The drawback to learning by doing, however, is that one is attempting to do two things at once---producing and learning---and this can force compromises onto both. + +Foray positions users at the heart of knowledge production. He says that one major challenge for management is to capture the knowledge being generated by users "on line" during the process of doing and producing, and to integrate it with knowledge created "off line" in laboratories. He discusses implications of the distributed nature of knowledge production among users and others, and notes that the increased capabilities of information and communication technologies tend to reduce innovators' ability to control the knowledge they create. He proposes that the most effective knowledge-management policies and practices will be biased toward knowledge sharing. + +Weber (2004, pp. 72--73) explores similar ideas in the specific context of open source software. "The conventional language of industrial-era economics," he notes, "identifies producers and consumers, supply and demand. The open source process scrambles these categories. Open source software users are not consumers in the conventional sense. . . . Users integrate into the production process itself in a profound way." Weber's central thesis is that the open source process is a new way of organizing production: +={Weber, S.;Open source software:knowledge and} + +_1 One solution is the familiar economy that depends upon a blend of exclusive property rights, divisions of labor, reduction of transaction costs, and the management of principal-agent problems. The success of open source demonstrates the importance of a fundamentally different solution, built on top of an unconventional understanding of property rights configured around distribution. . . . And it relies on a set of organizational structures to coordinate behavior around the problem of managing distributed innovation, which is different from the division of labor. (ibid., p. 224) + +Weber details the property-rights regime used by open source projects, and also the nature of open source innovation communities and incentives acting on participants. He then argues that this new mode of production can extend beyond the development of open source software, to an extent and a degree that are not yet understood: +={Weber, S.;Open source software:knowledge and} + +One important direction in which the open source experiment points is toward moving beyond the discussion of transaction as a key determinant of institutional design. . . . The elegant analytics of transaction cost economics do very interesting work in explaining how divisions of labor evolve through outsourcing of particular functions (the decision to buy rather than make something). But the open source process adds another element. The notion of open-sourcing as a strategic organizational decision can be seen as an efficiency choice around distributed innovation, just as outsourcing was an efficiency choice around transactions costs. . . . As information about what users want and need to do becomes more fine-grained, more individually differentiated, and harder to communicate, the incentives grow to shift the locus of innovation closer to them by empowering them with freely modifiable tools. (ibid., pp. 265--267) + +!_ National Competitive Advantage +={Government policy:and national competitive advantage+6;Manufacturers:and national competitive advantage+6;National competitive advantage+6:See also Government policy;Users:national competitive advantage and+6} + +Understanding national innovation systems and the competitive advantage of a nation's firms is an important matter for national policy makers (Nelson 1993). Can what we have learned in this book shed any light on their concerns? Porter (1991), assessing national competitive advantage through the intellectual lens of competitive strategy, concludes that one of four major factors determining the competitive advantage of nations is demand conditions. "A nation's firms," he argues, "gain competitive advantage if domestic buyers are, or are among, the world's most sophisticated and demanding buyers for the product or service. Such buyers provide a window into the most advanced buyer needs. . . . Buyers are demanding where home product needs are especially stringent or challenging because of local circumstances." For example: "The continental United States has been intensely drilled, and wells are being drilled in increasingly difficult and marginal fields. The pressure has been unusually great for American oil field equipment suppliers to perfect techniques that minimize the cost of difficult drilling and ensure full recovery from each field. This has pushed them to advance the state of the art and sustain strong international positions." (ibid., pp. 89--90) +={Nelson, R.;Porter, M.+5} + +Porter also argues that /{early}/ domestic demand is also important: "Provided it anticipates buyer needs in other nations, early local demand for a product or service in a nation helps local firms to move sooner than foreign rivals to become established in an industry. They get the jump in building large-scale facilities and accumulating experience. . . . Only if home demand is anticipatory of international need will home demand contribute to advantage." (ibid., p. 95) + +From my perspective, Porter is making the case for the value of a nation's domestic lead users to national competitive advantage. However, he is also assuming that it is /{manufacturers}/ that innovate in response to advanced or stringent user demand. On the basis of the findings reported on in this book, I would modify this assumption by noting that, often, domestic manufacturers' links to /{innovating lead users}/ have the impacts on national competitive advantage that he describes---but that the lead users' input to favored domestic firms would include innovations as well as needs. + +Domestic lead users make a difference to national competitive advantage, Porter argues, because "local firms often enjoy some natural advantages in serving their home market compared to foreign firms, a result of proximity as well as language, regulation, and cultural affinities (even, frequently, if foreign firms are staffed with local nationals)." Porter continues: "Preferred access to a large domestic customer base can be a spur to investment by local firms. Home demand may be perceived as more certain and easier to forecast, while foreign demand is seen as uncertain even if firms think they have the ability to fill it." (ibid., p. 93) + +What new insights and research questions can the work of this book contribute to this analysis of national competitive advantage? On the one hand, I certainly see the pattern Porter describes in some studies of lead user innovation. For example, early in the history of the US semiconductor industry, AT&T, the inventor of the transistor and an early innovator, developed a number of novel types of production equipment as a user organization. AT&T engineers went to local machine shops to have these machines produced in volume to meet AT&T's in-house production needs. A side effect of this procurement strategy was to put many of these previously undistinguished firms into the business of producing advanced semi-conductor equipment to the world (von Hippel 1977, 1988). +={von Hippel, E.} + +On the other hand, the findings of this book suggest that the "natural advantages" Porter proposes that domestic manufacturers will have with respect to filling the needs of local lead users may be eroding in the Internet age. As has been seen in the case of open source software, and by extension in the cases of other information-based products, users are capable of developing complex products in a coordinated way without geographic proximity. Participants in a particular open source project, for example, may come from a number of countries and may never meet face to face. In the case of physical products, the emergence of a pattern of user-based design followed by "foundry-style" production may also reduce the importance of propinquity between innovating lead users and manufacturers. As in the cases of integrated circuits and kitesurfing discussed earlier in this book, users can transmit CAD product-design information files from anywhere to any suitably equipped manufacturer for production. Probably only in the case of physical products where the interaction between product and production methods are not clear will geography continue to matter deeply in the age of the Internet. Nations may be able to create comparative advantages for domestic manufacturers with respect to profiting from innovation by lead users; however, they cannot assume that such advantages will continue to exist simply because of propinquity. +={Custom products:product platforms and|users and;Innovation communities:open source software and;Kitesurfing;Open source software;Printed circuit CAD software;Open source software:innovation communities and;Toolkits:platform products and;Users:custom products and} + +!_ The Sociology of Technical Communities +={Information commons+8;Innovation communities:sociology of+8;Technical communities+8} + +Relevant elements of this field include studies in the sociology of technology in general and studies of the sociology of open source software communities in particular. Historical accounts of the evolution of a technology have often taken a linear view of their subject. In the linear view, a technology such as aerodynamics and related technological artifacts such as the airplane start at point A and then naturally evolve to end point B. In other words, it is implicitly assumed that the airplane will evolve from the artifact of wood and fabric and wire developed by the Wright brothers to the characteristics we associate with aircraft today. Nothing much to explain about that. +={Open source software;Open source software:innovation communities and} + +In the Social Construction of Technology (SCOT) model of technological evolution (Pinch and Bijker 1987), the direction in which an artifact (a product, for example) evolves depends very much on the meanings that different "groups with a problem" construct for it. These meanings, in turn, affect which of the many possible variations of a product are developed, how they evolve, and whether and how they eventually die. Groups that construct the meanings of a product centrally include, but are not restricted to, product users. For example, in the case of the bicycle, some relevant groups were users of various types---people who wanted to travel from place to place via bicycle, people who wanted to race bicycles, etc. Relevant non-user groups included "anticyclists," who had a negative view of the bicycle in its early days and wanted it to fail (Bijker 1995). +={Bijker, W.;Pinch, T.+4;Custom products:users and} + +When one takes the views of all relevant groups into account, one gets a much richer view of the "socially constructed" evolution of a technology. As a relatively recent example, consider the supersonic transport plane (SST) planned in the United States during the 1970s. Airlines, and potential passengers were "groups with a problem" who presumably wanted the technology for different reasons. Other relevant groups with a problem included people who expected to be negatively affected by the sonic boom the SST would cause, people who were concerned about the pollution its engines would cause in the stratosphere, and people who had other reasons for opposing or supporting the SST. Proposed designs evolved in an attempt to satisfy the various contending interest groups. Eventually it became clear that the SST designers could not arrive at a generally acceptable compromise solution and so the project failed (Horwich 1982). +={Horwich, M.} + +Pinch and Kline (1996, pp. 774--775) elaborated on the original SCOT model by pointing out that the way a product is interpreted is not restricted to the design stage of a technology, but also can continue during the product's use. They illustrated with the case of the automobile: . . . +={Kline, R.+2} + +_1 although [automobile] manufacturers may have ascribed a particular meaning to the artifact they were not able to control how that artifact was used once it got into the hands of the users. Users precisely as users can embed new meanings into the technology. This happened with the adaptation of the car into rural life. As early as 1903, farm families started to define the car as more than a transportation device. In particular, they saw it as a general source of power. George Schmidt, a Kansas farmer, advised readers of the /{Rural New Yorker}/ in 1903 to "block up the hind axle and run a belt over the one wheel of the automobile and around the wheel on a [corn] sheller, grinder, saw, pump, or any other machine that the engine is capable of running, and see how the farmer can save money and be in style with any city man." T. A. Pottinger, an Illinois farm man, wrote in /{Wallace's Farmer}/ in 1909 that "the ideal farm car should have a detachable backseat, which could turn the vehicle into a small truck." Other Phenomena and Fields 173 +={Pottinger, T.;Schmidt, G.} + +Of course, user innovations and modifications are involved in these cases along with users' reinterpretation of product uses. Kline and Pinch report that manufacturers adopted some of the rural users' innovations, generally after a lag. For example, a car that could also serve as a small truck was eventually offered as a commercial product. +={Users:innovation and+13;Manufacturers:innovation and} + +Research on communities of practice offers another link between studies of user innovation and sociology (Brown and Duguid 1991; Wenger 1998). The focus of this research is on the functioning of specialist communities. Researchers find that experts in a field spontaneously form interest groups that communicate to exchange their views and learnings on how to carry out and improve the practices of their profession. Members of communities of practice exchange help in informal ways that seem similar to the practices described above as characteristic of open source software projects and communities of sports innovators. +={Brown, J.;Duguid, P.;Wenger, E.;Open source software} + +Research on brand communities is still another related research thread (Muniz and O'Guinn 2001). Brand communities form around commercial brands and products (e.g., Lego construction toys) and even around products discontinued by their manufacturers e.g., Apple's Newton personal digital assistant). Brand communities can be intensely meaningful to participants and can involve user innovation. In Newton groups, for example, users develop new applications and exchange information about how to repair aging equipment (Muniz and Schau 2004). In Lego communities, lead users develop new products, new building techniques, and new offline and online multiplayer building projects that later prove to be of interest to the manufacturer (Antorini 2005). +={Antorini, Y.;Brand communities;Muniz, A.;O'Guinn, T.;Schau, H.;Innovation communities:brand and} + +!_ The Management of Product Development +={Product development+10} + +Finally, I turn to links between user-centered innovation and teaching on the management of product development. Information on lead users as a source of new product ideas now appears in most marketing textbooks. There also should be a link to other elements of user-centered innovation processes in the literature on product-development management---but there really isn't much of one yet. Although much of the research on user innovation cited in this book is going on in schools of management and business economics, little of this information has moved into teaching related to the product-development process as of yet. + +Clearly, it would be useful to provide managers of both user firms and manufacturing firms with a better understanding of the management of user-centered innovation. It is a curious fact that even managers of firms that have built major product lines upon user-developed innovations may hold the manufacturer-centric view that "we developed that." For example, an early study of innovation in scientific instruments documented that nearly 80 percent of the major improvements commercialized by instrument manufacturers had been developed by users (von Hippel 1976). When I later discussed this finding with managers in instrument firms, most of them were astonished. They insisted that all the innovations in the study sample had been developed within manufacturing firms. They could be convinced otherwise only when supplied with actual publications by user-scientists describing user-built prototypes of those instrument improvements---prototypes developed from 5 to 7 years before any instrument firm had sold a functionally equivalent commercial product. +={von Hippel, E.} + +My inquiries into why managers in this field and others held---and largely still hold---such contrary-to-fact beliefs identified several contributing factors. First, manufacturers seldom track where the major new products and product improvements they sell actually came from. Managers see no need to set up a tracking system, because the conventional wisdom is clear: "Everyone knows new products are developed by manufacturers such as ourselves based on user needs identified by market research." Further, the manufacturing firms have market-research and product-development departments in place, and innovations are somehow being produced. Thus, it is easy to conclude that the manufacturers' innovation processes must be working as expected. + +In fact, however, important, functionally novel innovations are often brought into manufacturers by informal channels. Product-development engineers may attend conferences and learn about important user innovations, salesmen and technical service personnel discover user-modified equipment on field visits, and so on. Once the basic innovation-related information is in house, the operating principles of a user's prototype will often be adopted, but the detailed design of the device will be changed and improved for production. After a while, the user's prototype, if remembered at all, will begin to look quite primitive to the firm's engineers relative to the much better product they have designed. Finally, when sales begin, the firm's advertising will urge customers to buy "/{our}/ wonderful new product." Other Phenomena and Fields 175 + +The net result is understandable: the user roots of many new commercial products, never widely known in manufacturing firms, are forgotten. And when it is time to develop the next innovation, management again turns to the conventional methods that "worked so well for us last time." Eventually, information about new user innovations will again arrive by pathways unnoticed and unmanaged---and with an unnecessary lag. + +To improve matters, managers must learn when it is appropriate to follow user-centered and manufacturer-centered innovation process paradigms and how user-centered innovation can best be managed when it is the method of choice. Managers in user firms and in manufacturing firms need tools with which to understand the innovate-or-buy decisions they face---to understand which product needs or which service needs users (rather than manufacturers) should invest in developing. Managers in user firms also need to learn how their firms can best carry out development work in their low-cost innovation niches: how they can best deploy their information-related advantages of being actual users and residing in the context of use to cheaply learn by doing. Managers in manufacturing firms will want to learn how they can best play a profitable role in user-centered innovation patterns when these play a role in the markets they serve. +={Sticky information:toolkits and+1;Users:innovate-or-buy decisions by|low-cost innovation niches of} + +Innovating users may also want to learn whether and how to diffuse their innovations by becoming manufacturers. This may be a fairly common practice in some fields. Shah (2000) found that users of sports equipment sometimes became manufacturers by a very natural process. The users would demonstrate the performance and value of their innovations as they used them in public sporting events. Some of the participants in the meets would then ask "Can you make one of those for me too?" Informal hobby-level production would then sometimes become the basis of a major company. Lettl, Herstatt, and Gemünden (2004) report on case histories in which user-innovators became heavily involved in promoting the commercialization of important innovations in surgical equipment. These innovations tended to be developed by surgeons, who then often made major efforts to induce manufacturers to commercialize them. Hienerth (2004) documents how user-innovators in "rodeo kayaking" build their own boats, discover that kayak manufacturers (even those established by a previous generation of user-innovators) are unwilling to manufacture what they want, and so are driven to become manufacturers themselves. +={Gemünden, H.;Lettl, C.;Herstatt, C.;Hienerth, C.;Shah, S.;Sporting equipment:lead users and;Windsurfing;Surgical equipment} + +Managers must learn that no single locus of innovation is the "right" one for either user firms or manufacturer firms. The locus of innovation varies between user firms and manufacturing firms according to market-related and information-related conditions. These conditions may well vary predictably over product life cycles. Utterback and Abernathy (1975) proposed that innovation by users is likely to be more important in the early stages of such cycles. Early in the life of a new product, there is a "fluid" stage in which the nature and the use of a product are unclear. Here, Utterback and Abernathy say, users play a big part in sorting the matter out, in part through innovation. Later, a dominant product design will emerge---a shared sense of exactly what a particular product is, what features and components it should include, and how it should function. (We all know, for example, that a car has four wheels and moves along the ground in directions determined by a steering wheel.) After that time, if the market for the product grows, innovation will shift from product to process as firms shift from the problem of what to produce to the problem of how to produce a well-understood product in ever greater volumes. From a lead user innovation perspective, of course, both functionally novel products and functionally novel processes are likely to be developed by users---in the first case users of the product, and in the second by manufacturing firms that use the process. +={Albernathy, W.;Utterback, J.} + +!_ In Conclusion + +In this book I have explored how and why users, individually and in firms and in communities, develop and freely reveal innovations. I have also argued that there is a general trend toward a open and distributed innovation process driven by steadily better and cheaper computing and communications. The net result is an ongoing shift toward the democratization of innovation. This welfare-enhancing shift is forcing major changes in user and manufacturer innovation practices, and is creating the need for change in government policies. It also, as I noted at the start of the book, presents major new opportunities for us all. Other Phenomena and Fields 177 + +1~ Notes + +!_ Chapter 2 + +1. LES contains four types of measures. Three ("benefits recognized early," "high benefits expected," and "direct elicitation of the construct") contain the core components of the lead user construct. The fourth ("applications generation") is a measure of a number of innovation-related activities in which users might engage: they "suggest new applications," they "pioneer those applications," and (because they have needs or problems earlier than their peers) they may be "used as a test site" (Morrison, Midgely, and Roberts 2004). + +!_ Chapter 3 + +1. Cluster analysis does not specify the "right" number of clusters---it simply segments a sample into smaller and smaller clusters until the analyst calls a halt. Determining an appropriate number of clusters within a sample can be done in different ways. Of course, it always possible to say that "I only want to deal with three market segments, so I will stop my analysis when my sample has been segmented into three clusters." More commonly, analysts will examine the increase of squared error sums of each step, and generally will view the optimal number of clusters as having been reached when the plot shows a sudden "elbow" (Myers 1996). Since this technique does not incorporate information on remaining within-cluster heterogeneity, it can lead to solutions with a large amount of within-cluster variance. The "cubic clustering criterion" (CCC) partially addresses this concern by measuring the within-cluster homogeneity relative to the between-cluster heterogeneity. It suggests choosing the number of clusters where this value peaks (Milligan and Cooper 1985). However, this method appears to be rarely used: Ketchen and Shook (1996) found it used in only 5 of 45 segmentation studies they examined. + +2. http://groups-beta.google.com/group/comp.infosystems.www.servers.unix + +3. http://modules.apache.org/ + +4. To measure heterogeneity, Franke and I analyzed the extent to which j standards, varying from [1; i], meet the needs of the i individuals in our sample. Conceptually, we first locate a product in multi-dimensional need space (dimensions = 45 in the case of our present study) that minimizes the distances to each individual's needs. (This step is analogous to the Ward's method in cluster analysis that also minimizes within cluster variation; see Punj and Stewart 1983.) The "error" is then measured as the sum of squared Euclidean distances. We then repeated these steps to determine the error for two optimally positioned products, three products, and so on up to a number equaling I -- 1. The sum of squared errors for all cases is then a simple coefficient that measures how much the needs of i individuals can be satisfied with j standard products. The "coefficient of heterogeneity" just specified is sensitive both to the (average) distance between the needs and for the configuration of the needs: when the needs tend to form clusters the heterogeneity coefficient is lower than if they are evenly spread. To make the coefficient comparable across different populations, we calibrate it using a bootstrapping technique (Efron 1979) involving dividing the coefficient by the expected value (this value is generated by averaging the heterogeneity of many random distributions of heterogeneity of the same kind). The average random heterogeneity coefficient is then an appropriate value for calibration purposes: it assumes that there is no systematic relationship between the needs of the individuals or between the need dimensions. + +5. Conceptually, it can be possible to generate "one perfect product" for everyone--- in which case heterogeneity of demand is zero---by simply creating all the features wanted by anyone (45 + 92 features in the case of this study), and incorporating them in the "one perfect product." Users could then select the features they want from a menu contained in the one perfect product to tailor it to their own tastes. Doing this is at least conceptually possible in the case of software, but less so in the case of a physical product for two reasons: (1) delivering all possible physical options to everyone who buys the product would be expensive for physical goods (while costing nothing extra in the case of information products); (2) some options are mutually exclusive (an automobile cannot be both red and green at the same time). + +6. The difference between actual willingness to pay and expressed willingness to pay is much lower for private goods (our case) than for public goods. In the case of private goods, Loomis et al. (1996) found the expressed willingness to pay for art prints to be twice the actual WTP. Willis and Powe (1998) found that among visitors to a castle the expressed WTP was 60 percent lower than the actual WTP. In the case of public goods, Brown et al. (1996), in a study of willingness to pay for removal of a road from a wilderness area, found the expressed WTP to be 4--6 times the actual WTP. Lindsey and Knaap (1999), in a study of WTP for a public urban greenway, found the expressed WTP to be 2-10 times the actual WPT. Neil et al. (1994) found the expressed WTP for conserving an original painting in the desert to be 9 times the actual WTP. Seip and Strand (1992) found that less than 10 percent of those who expressed interest in paying to join an environmental organization actually joined. + +!_ Chapter 6 + +1. As a specific example of a project with an emergent goal, consider the beginnings of the Linux open source software project. In 1991, Linus Torvalds, a student in Finland, wanted a Unix operating system that could be run on his PC, which was equipped with a 386 processor. Minix was the only software available at that time but it was commercial, closed source, and it traded at US$150. Torvalds found this too expensive, and started development of a Posix-compatible operating system, later known as Linux. Torvalds did not immediately publicize a very broad and ambitious goal, nor did he attempt to recruit contributors. He simply expressed his private motivation in a message he posted on July 3, 1991, to the USENET newsgroup comp.os.minix (Wayner 2000): Hello netlanders, Due to a project I'm working on (in minix), I'm interested in the posix standard definition. [Posix is a standard for UNIX designers. A software using POSIX is compatible with other UNIX-based software.] Could somebody please point me to a (preferably) machine-readable format of the latest posix-rules? Ftp-sites would be nice. In response, Torvalds got several return messages with Posix rules and people expressing a general interest in the project. By the early 1992, several skilled programmers contributed to Linux and the number of users increased by the day. Today, Linux is the largest open source development project extant in terms of number of developers. +={Linux} + +!_ Chapter 7 + +1. When they do not incorporate these qualities, they would be more properly referred to as networks---but communities is the term commonly used, and I follow that practice here. + +2. hacker n. [originally, someone who makes furniture with an axe] 1. A person who enjoys exploring the details of programmable systems and how to stretch their capabilities, as opposed to most users, who prefer to learn only the minimum necessary. 2. One who programs enthusiastically (even obsessively) or who enjoys programming rather than just theorizing about programming. 3. A person capable of appreciating hack value. 4. A person who is good at programming quickly. . . . 8. [deprecated] A malicious meddler who tries to discover sensitive information by poking around. Hence password hacker, network hacker. The correct term for this sense is cracker (Raymond 1996). + +3. Source code is a sequence of instructions to be executed by a computer to accomplish a program's purpose. Programmers write computer software in the form of source code, and also document that source code with brief written explanations of the purpose and design of each section of their program. To convert a program into a form that can actually operate a computer, source code is translated into machine code using a software tool called a compiler. The compiling process removes program documentation and creates a binary version of the program---a sequence of computer instructions consisting only of strings of ones and zeros. Binary code is very difficult for programmers to read and interpret. Therefore, programmers or firms that wish to prevent others from understanding and modifying their code will release only binary versions of the software. In contrast, programmers or firms that wish to enable others to understand and update and modify their software will provide them with its source code. (Moerke 2000, Simon 1996). + +4. See www.gnu.org/licenses/licenses.html#GPL + +5. http://www.sourceforge.net + +6. "The owner(s) [or `maintainers'] of an open source software project are those who have the exclusive right, recognized by the community at large, to redistribute modified versions. . . . According to standard open source licenses, all parties are equal in the evolutionary game. But in practice there is a very well-recognized distinction between `official' patches [changes to the software], approved and integrated into the evolving software by the publicly recognized maintainers, and `rogue' patches by third parties. Rogue patches are unusual and generally not trusted." (Raymond 1999, p. 89) + +!_ Chapter 8 + +1. See also Bresnahan and Greenstein 1996b; Bresnahan and Saloner 1997; Saloner and Steinmueller 1996. + +!_ Chapter 10 + +1. ABS braking is intended to keep a vehicle's wheels turning during braking. ABS works by automatically and rapidly "pumping" the brakes. The result is that the wheels continue to revolve rather than "locking up," and the operator continues to have control over steering. + +2. In the general literature, Armstrong's (2001) review on forecast bias for new product introduction indicates that sales forecasts are generally optimistic, but that that upward bias decreases as the magnitude of the sales forecast increases. Coller and Yohn (1998) review the literature on bias in accuracy of management earnings forecasts and find that little systematic bias occurs. Tull's (1967) model calculates $15 million in revenue as a level above which forecasts actually become pessimistic on average. 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"Austrian and Industrial Organization Perspectives on Firm Level Competitive Activity and Performance." /{Organization Science}/ 7, no. 3: 243--254. + +%% index di.eric_von_hippel_index.txt democratizing_innovation.eric_von_hippel_index.txt diff --git a/data/v3/samples/down_and_out_in_the_magic_kingdom.cory_doctorow.sst b/data/v3/samples/down_and_out_in_the_magic_kingdom.cory_doctorow.sst new file mode 100644 index 0000000..b9aa6a2 --- /dev/null +++ b/data/v3/samples/down_and_out_in_the_magic_kingdom.cory_doctorow.sst @@ -0,0 +1,2967 @@ +% SiSU 2.0 + +@title: Down and Out in the Magic Kingdom + +% http://www.craphound.com/down + +@creator: + :author: Doctorow, Cory + +% doctorow@craphound.com + +@rights: + :copyright: Copyright © 2003 Cory Doctorow + :license: Creative Commons, Attribution-NonCommercial-ShareAlike 1.0. That means, you are free:
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RELICENSED from Attribution-NoDerivs-NonCommercial 1.0 http://creativecommons.org/licenses/by-nd-nc/1.0/ + +% Tor Books, January 2003 + +@classify: + :subject: novel + :topic_register: SiSU:markup sample:book;book:novel;fiction:counterculture|young adult|science fiction + :type: fiction + :oclc: 50645482 + :isbn: 0765304368 + +% Realizing his boyhood dream of moving to the twentieth-century artistic creation of Disney World, Jules becomes incensed by a new group that would change the Hall of Presidents by replacing the audioanimatronics with brain interfaces. + +% :loc: #___# + +@date: + :published: 2003-01-09 + :modified: 2010-09-16 + +% :added_to_site: 20YY-MM-DD + +@make: + :breaks: new=:C; break=1 + :skin: skin_magic_kingdom + +@links: { Down and Out in the Magic Kingdom home }http://craphound.com/down + {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow + {@ Wikipedia }http://en.wikipedia.org/wiki/Down_and_Out_in_the_Magic_Kingdom + {@ Amazon.com}http://www.amazon.com/Down-Magic-Kingdom-Cory-Doctorow/dp/076530953X + {@ Barnes & Noble}http://search.barnesandnoble.com/Down-and-Out-in-the-Magic-Kingdom/Cory-Doctorow/e/9780765309532 + {Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + {CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + +:A~ @title @author + +1~blurbs Blurbs: + +He sparkles! He fizzes! He does backflips and breaks the furniture! Science fiction needs Cory Doctorow! + +Bruce Sterling + +Author, /{The Hacker Crackdown}/ and /{Distraction}/ + +In the true spirit of Walt Disney, Doctorow has ripped a part of our common culture, mixed it with a brilliant story, and burned into our culture a new set of memes that will be with us for a generation at least. + +Lawrence Lessig + +Author, /{The Future of Ideas}/ + +Cory Doctorow doesn't just write about the future – I think he lives there. Down and Out in the Magic Kingdom isn't just a really good read, it's also, like the best kind of fiction, a kind of guide book. See the Tomorrowland of Tomorrow today, and while you're there, why not drop by Frontierland, and the Haunted Mansion as well? (It's the Mansion that's the haunted heart of this book.) Cory makes me feel nostalgic for the future – a dizzying, yet rather pleasant sensation, as if I'm spiraling down the tracks of Space Mountain over and over again. Visit the Magic Kingdom and live forever! + +Kelly Link + +Author, /{Stranger Things Happen}/ + +Down and Out in the Magic Kingdom is the most entertaining and exciting science fiction story I've read in the last few years. I love page-turners, especially when they are as unusual as this novel. I predict big things for Down and Out—it could easily become a breakout genre-buster. + +Mark Frauenfelder + +Contributing Editor, /{Wired Magazine}/ + +Imagine you woke up one day and Walt Disney had taken over the world. Not only that, but money's been abolished and somebody's developed the Cure for Death. Welcome to the Bitchun Society—and make sure you're strapped in tight, because it's going to be a wild ride. In a world where everyone's wishes can come true, one man returns to the original, crumbling city of dreams—Disney World. Here in the spiritual center of the Bitchun Society he struggles to find and preserve the original, human face of the Magic Kingdom against the young, post-human and increasingly alien inheritors of the Earth. Now that any experience can be simulated, human relationships become ever more fragile; and to Julius, the corny, mechanical ghosts of the Haunted Mansion have come to seem like a precious link to a past when we could tell the real from the simulated, the true from the false. + +Cory Doctorow—cultural critic, Disneyphile, and ultimate Early Adopter—uses language with the reckless confidence of the Beat poets. Yet behind the dazzling prose and vibrant characters lie ideas we should all pay heed to. The future rushes on like a plummeting roller coaster, and it's hard to see where we're going. But at least with this book Doctorow has given us a map of the park. + +Karl Schroeder + +Author, /{Permanence}/ + +Cory Doctorow is the most interesting new SF writer I've come across in years. He starts out at the point where older SF writers' speculations end. It's a distinct pleasure to give him some Whuffie. + +Rudy Rucker + +Author, /{Spaceland}/ + +Cory Doctorow rocks! I check his blog about ten times a day, because he's always one of the first to notice a major incursion from the social-technological-pop-cultural future, and his voice is a compelling vehicle for news from the future. Down and Out in The Magic Kingdom is about a world that is visible in its outlines today, if you know where to look, from reputation systems to peer-to-peer adhocracies. Doctorow knows where to look, and how to word-paint the rest of us into the picture. + +Howard Rheingold + +Author, /{Smart Mobs}/ + +Doctorow is more than just a sick mind looking to twist the perceptions of those whose realities remain uncorrupted - though that should be enough recommendation to read his work. /{Down and Out in the Magic Kingdom}/ is black comedic, sci-fi prophecy on the dangers of surrendering our consensual hallucination to the regime. Fun to read, but difficult to sleep afterwards. + +Douglas Rushkoff + +Author of /{Cyberia}/ and /{Media Virus!}/ + +“Wow! Disney imagineering meets nanotechnology, the reputation economy, and Ray Kurzweil's transhuman future. As much fun as Neal Stephenson's Snow Crash, and as packed with mind bending ideas about social changes cascading from the frontiers of science.” + +Tim O'Reilly + +Publisher and Founder, O'Reilly and Associates + +Doctorow has created a rich and exciting vision of the future, and then wrote a page-turner of a story in it. I couldn't put the book down. + +Bruce Schneier + +Author, /{Secrets and Lies}/ + +Cory Doctorow is one of our best new writers: smart, daring, savvy, entertaining, ambitious, plugged-in, and as good a guide to the wired world of the twenty-first century that stretches out before us as you're going to find. + +Gardner Dozois + +Editor, /{Asimov's SF}/ + +Cory Doctorow's “Down and Out in the Magic Kingdom” tells a gripping, fast-paced story that hinges on thought-provoking extrapolation from today's technical realities. This is the sort of book that captures and defines the spirit of a turning point in human history when our tools remake ourselves and our world. + +Mitch Kapor + +Founder, Lotus, Inc., co-founder Electronic Frontier Foundation + +1~prologue PROLOGUE + +I lived long enough to see the cure for death; to see the rise of the Bitchun Society, to learn ten languages; to compose three symphonies; to realize my boyhood dream of taking up residence in Disney World; to see the death of the workplace and of work. + +I never thought I'd live to see the day when Keep A-Movin' Dan would decide to deadhead until the heat death of the Universe. + +Dan was in his second or third blush of youth when I first met him, sometime late-XXI. He was a rangy cowpoke, apparent 25 or so, all rawhide squint-lines and sunburned neck, boots worn thin and infinitely comfortable. I was in the middle of my Chem thesis, my fourth Doctorate, and he was taking a break from Saving the World, chilling on campus in Toronto and core-dumping for some poor Anthro major. We hooked up at the Grad Students' Union—the GSU, or Gazoo for those who knew—on a busy Friday night, summer-ish. I was fighting a coral-slow battle for a stool at the scratched bar, inching my way closer every time the press of bodies shifted, and he had one of the few seats, surrounded by a litter of cigarette junk and empties, clearly encamped. + +Some duration into my foray, he cocked his head at me and raised a sun-bleached eyebrow. “You get any closer, son, and we're going to have to get a pre-nup.” + +I was apparent forty or so, and I thought about bridling at being called son, but I looked into his eyes and decided that he had enough realtime that he could call me son anytime he wanted. I backed off a little and apologized. + +He struck a cig and blew a pungent, strong plume over the bartender's head. “Don't worry about it. I'm probably a little over accustomed to personal space.” + +I couldn't remember the last time I'd heard anyone on-world talk about personal space. With the mortality rate at zero and the birth-rate at non-zero, the world was inexorably accreting a dense carpet of people, even with the migratory and deadhead drains on the population. “You've been jaunting?” I asked—his eyes were too sharp for him to have missed an instant's experience to deadheading. + +He chuckled. “No sir, not me. I'm into the kind of macho shitheadery that you only come across on-world. Jaunting's for play; I need work.” The bar-glass tinkled a counterpoint. + +I took a moment to conjure a HUD with his Whuffie score on it. I had to resize the window—he had too many zeroes to fit on my standard display. I tried to act cool, but he caught the upwards flick of my eyes and then their involuntary widening. He tried a little aw-shucksery, gave it up and let a prideful grin show. + +“I try not to pay it much mind. Some people, they get overly grateful.” He must've seen my eyes flick up again, to pull his Whuffie history. “Wait, don't go doing that—I'll tell you about it, you really got to know. + +“Damn, you know, it's so easy to get used to life without hyperlinks. You'd think you'd really miss 'em, but you don't.” + +And it clicked for me. He was a missionary—one of those fringe-dwellers who act as emissary from the Bitchun Society to the benighted corners of the world where, for whatever reasons, they want to die, starve, and choke on petrochem waste. It's amazing that these communities survive more than a generation; in the Bitchun Society proper, we usually outlive our detractors. The missionaries don't have such a high success rate—you have to be awfully convincing to get through to a culture that's already successfully resisted nearly a century's worth of propaganda—but when you convert a whole village, you accrue all the Whuffie they have to give. More often, missionaries end up getting refreshed from a backup after they aren't heard from for a decade or so. I'd never met one in the flesh before. + +“How many successful missions have you had?” I asked. + +“Figured it out, huh? I've just come off my fifth in twenty years—counterrevolutionaries hidden out in the old Cheyenne Mountain NORAD site, still there a generation later.” He sandpapered his whiskers with his fingertips. “Their parents went to ground after their life's savings vanished, and they had no use for tech any more advanced than a rifle. Plenty of those, though.” + +He spun a fascinating yarn then, how he slowly gained the acceptance of the mountain-dwellers, and then their trust, and then betrayed it in subtle, beneficent ways: introducing Free Energy to their greenhouses, then a gengineered crop or two, then curing a couple deaths, slowly inching them toward the Bitchun Society, until they couldn't remember why they hadn't wanted to be a part of it from the start. Now they were mostly off-world, exploring toy frontiers with unlimited energy and unlimited supplies and deadheading through the dull times en route. + +“I guess it'd be too much of a shock for them to stay on-world. They think of us as the enemy, you know—they had all kinds of plans drawn up for when we invaded them and took them away; hollow suicide teeth, booby-traps, fall-back-and-rendezvous points for the survivors. They just can't get over hating us, even though we don't even know they exist. Off-world, they can pretend that they're still living rough and hard.” He rubbed his chin again, his hard calluses grating over his whiskers. “But for me, the real rough life is right here, on-world. The little enclaves, each one is like an alternate history of humanity—what if we'd taken the Free Energy, but not deadheading? What if we'd taken deadheading, but only for the critically ill, not for people who didn't want to be bored on long bus-rides? Or no hyperlinks, no ad-hocracy, no Whuffie? Each one is different and wonderful.” + +I have a stupid habit of arguing for the sake of, and I found myself saying, “Wonderful? Oh sure, nothing finer than, oh, let's see, dying, starving, freezing, broiling, killing, cruelty and ignorance and pain and misery. I know I sure miss it.” + +Keep A-Movin' Dan snorted. “You think a junkie misses sobriety?” + +I knocked on the bar. “Hello! There aren't any junkies anymore!” + +He struck another cig. “But you know what a junkie /{is}/, right? Junkies don't miss sobriety, because they don't remember how sharp everything was, how the pain made the joy sweeter. We can't remember what it was like to work to earn our keep; to worry that there might not be /{enough}/, that we might get sick or get hit by a bus. We don't remember what it was like to take chances, and we sure as shit don't remember what it felt like to have them pay off.” + +He had a point. Here I was, only in my second or third adulthood, and already ready to toss it all in and do something, /{anything}/, else. He had a point—but I wasn't about to admit it. “So you say. I say, I take a chance when I strike up a conversation in a bar, when I fall in love… and what about the deadheads? Two people I know, they just went deadhead for ten thousand years! Tell me that's not taking a chance!” Truth be told, almost everyone I'd known in my eighty-some years were deadheading or jaunting or just /{gone}/. Lonely days, then. + +“Brother, that's committing half-assed suicide. The way we're going, they'll be lucky if someone doesn't just switch 'em off when it comes time to reanimate. In case you haven't noticed, it's getting a little crowded around here.” + +I made pish-tosh sounds and wiped off my forehead with a bar-napkin—the Gazoo was beastly hot on summer nights. “Uh-huh, just like the world was getting a little crowded a hundred years ago, before Free Energy. Like it was getting too greenhousey, too nukey, too hot or too cold. We fixed it then, we'll fix it again when the time comes. I'm gonna be here in ten thousand years, you damn betcha, but I think I'll do it the long way around.” + +He cocked his head again, and gave it some thought. If it had been any of the other grad students, I'd have assumed he was grepping for some bolstering factoids to support his next sally. But with him, I just knew he was thinking about it, the old-fashioned way. + +“I think that if I'm still here in ten thousand years, I'm going to be crazy as hell. Ten thousand years, pal! Ten thousand years ago, the state-of-the-art was a goat. You really think you're going to be anything recognizably human in a hundred centuries? Me, I'm not interested in being a post-person. I'm going to wake up one day, and I'm going to say, ‘Well, I guess I've seen about enough,’ and that'll be my last day.” + +I had seen where he was going with this, and I had stopped paying attention while I readied my response. I probably should have paid more attention. “But why? Why not just deadhead for a few centuries, see if there's anything that takes your fancy, and if not, back to sleep for a few more? Why do anything so /{final}/?” + +He embarrassed me by making a show of thinking it over again, making me feel like I was just a half-pissed glib poltroon. “I suppose it's because nothing else is. I've always known that someday, I was going to stop moving, stop seeking, stop kicking, and have done with it. There'll come a day when I don't have anything left to do, except stop.” + +On campus, they called him Keep-A-Movin' Dan, because of his cowboy vibe and because of his lifestyle, and he somehow grew to take over every conversation I had for the next six months. I pinged his Whuffie a few times, and noticed that it was climbing steadily upward as he accumulated more esteem from the people he met. + +I'd pretty much pissed away most of my Whuffie—all the savings from the symphonies and the first three theses—drinking myself stupid at the Gazoo, hogging library terminals, pestering profs, until I'd expended all the respect anyone had ever afforded me. All except Dan, who, for some reason, stood me to regular beers and meals and movies. + +I got to feeling like I was someone special—not everyone had a chum as exotic as Keep-A-Movin' Dan, the legendary missionary who visited the only places left that were closed to the Bitchun Society. I can't say for sure why he hung around with me. He mentioned once or twice that he'd liked my symphonies, and he'd read my Ergonomics thesis on applying theme-park crowd-control techniques in urban settings, and liked what I had to say there. But I think it came down to us having a good time needling each other. + +I'd talk to him about the vast carpet of the future unrolling before us, of the certainty that we would encounter alien intelligences some day, of the unimaginable frontiers open to each of us. He'd tell me that deadheading was a strong indicator that one's personal reservoir of introspection and creativity was dry; and that without struggle, there is no real victory. + +This was a good fight, one we could have a thousand times without resolving. I'd get him to concede that Whuffie recaptured the true essence of money: in the old days, if you were broke but respected, you wouldn't starve; contrariwise, if you were rich and hated, no sum could buy you security and peace. By measuring the thing that money really represented—your personal capital with your friends and neighbors—you more accurately gauged your success. + +And then he'd lead me down a subtle, carefully baited trail that led to my allowing that while, yes, we might someday encounter alien species with wild and fabulous ways, that right now, there was a slightly depressing homogeneity to the world. + +On a fine spring day, I defended my thesis to two embodied humans and one prof whose body was out for an overhaul, whose consciousness was present via speakerphone from the computer where it was resting. They all liked it. I collected my sheepskin and went out hunting for Dan in the sweet, flower-stinking streets. + +He'd gone. The Anthro major he'd been torturing with his war-stories said that they'd wrapped up that morning, and he'd headed to the walled city of Tijuana, to take his shot with the descendants of a platoon of US Marines who'd settled there and cut themselves off from the Bitchun Society. + +So I went to Disney World. + +In deference to Dan, I took the flight in realtime, in the minuscule cabin reserved for those of us who stubbornly refused to be frozen and stacked like cordwood for the two hour flight. I was the only one taking the trip in realtime, but a flight attendant dutifully served me a urine-sample-sized orange juice and a rubbery, pungent, cheese omelet. I stared out the windows at the infinite clouds while the autopilot banked around the turbulence, and wondered when I'd see Dan next. + +1~ CHAPTER 1 + +My girlfriend was 15 percent of my age, and I was old-fashioned enough that it bugged me. Her name was Lil, and she was second-generation Disney World, her parents being among the original ad-hocracy that took over the management of Liberty Square and Tom Sawyer Island. She was, quite literally, raised in Walt Disney World and it showed. + +It showed. She was neat and efficient in her every little thing, from her shining red hair to her careful accounting of each gear and cog in the animatronics that were in her charge. Her folks were in canopic jars in Kissimmee, deadheading for a few centuries. + +On a muggy Wednesday, we dangled our feet over the edge of the Liberty Belle's riverboat pier, watching the listless Confederate flag over Fort Langhorn on Tom Sawyer Island by moonlight. The Magic Kingdom was all closed up and every last guest had been chased out the gate underneath the Main Street train station, and we were able to breathe a heavy sigh of relief, shuck parts of our costumes, and relax together while the cicadas sang. + +I was more than a century old, but there was still a kind of magic in having my arm around the warm, fine shoulders of a girl by moonlight, hidden from the hustle of the cleaning teams by the turnstiles, breathing the warm, moist air. Lil plumped her head against my shoulder and gave me a butterfly kiss under my jaw. + +“Her name was McGill,” I sang, gently. + +“But she called herself Lil,” she sang, warm breath on my collarbones. + +“And everyone knew her as Nancy,” I sang. + +I'd been startled to know that she knew the Beatles. They'd been old news in my youth, after all. But her parents had given her a thorough—if eclectic—education. + +“Want to do a walk-through?” she asked. It was one of her favorite duties, exploring every inch of the rides in her care with the lights on, after the horde of tourists had gone. We both liked to see the underpinnings of the magic. Maybe that was why I kept picking at the relationship. + +“I'm a little pooped. Let's sit a while longer, if you don't mind.” + +She heaved a dramatic sigh. “Oh, all right. Old man.” She reached up and gently tweaked my nipple, and I gave a satisfying little jump. I think the age difference bothered her, too, though she teased me for letting it get to me. + +“I think I'll be able to manage a totter through the Haunted Mansion, if you just give me a moment to rest my bursitis.” I felt her smile against my shirt. She loved the Mansion; loved to turn on the ballroom ghosts and dance their waltz with them on the dusty floor, loved to try and stare down the marble busts in the library that followed your gaze as you passed. + +I liked it too, but I really liked just sitting there with her, watching the water and the trees. I was just getting ready to go when I heard a soft /{ping}/ inside my cochlea. “Damn,” I said. “I've got a call.” + +“Tell them you're busy,” she said. + +“I will,” I said, and answered the call subvocally. “Julius here.” + +“Hi, Julius. It's Dan. You got a minute?” + +I knew a thousand Dans, but I recognized the voice immediately, though it'd been ten years since we last got drunk at the Gazoo together. I muted the subvocal and said, “Lil, I've got to take this. Do you mind?” + +“Oh, /{no}/, not at all,” she sarcased at me. She sat up and pulled out her crack pipe and lit up. + +“Dan,” I subvocalized, “long time no speak.” + +“Yeah, buddy, it sure has been,” he said, and his voice cracked on a sob. + +I turned and gave Lil such a look, she dropped her pipe. “How can I help?” she said, softly but swiftly. I waved her off and switched the phone to full-vocal mode. My voice sounded unnaturally loud in the cricket-punctuated calm. + +“Where you at, Dan?” I asked. + +“Down here, in Orlando. I'm stuck out on Pleasure Island.” + +“All right,” I said. “Meet me at, uh, the Adventurer's Club, upstairs on the couch by the door. I'll be there in—” I shot a look at Lil, who knew the castmember-only roads better than I. She flashed ten fingers at me. “Ten minutes.” + +“Okay,” he said. “Sorry.” He had his voice back under control. I switched off. + +“What's up?” Lil asked. + +“I'm not sure. An old friend is in town. He sounds like he's got a problem.” + +Lil pointed a finger at me and made a trigger-squeezing gesture. “There,” she said. “I've just dumped the best route to Pleasure Island to your public directory. Keep me in the loop, okay?” + +I set off for the utilidor entrance near the Hall of Presidents and booted down the stairs to the hum of the underground tunnel-system. I took the slidewalk to cast parking and zipped my little cart out to Pleasure Island. + +I found Dan sitting on the L-shaped couch underneath rows of faked-up trophy shots with humorous captions. Downstairs, castmembers were working the animatronic masks and idols, chattering with the guests. + +Dan was apparent fifty plus, a little paunchy and stubbled. He had raccoon-mask bags under his eyes and he slumped listlessly. As I approached, I pinged his Whuffie and was startled to see that it had dropped to nearly zero. + +“Jesus,” I said, as I sat down next to him. “You look like hell, Dan.” + +He nodded. “Appearances can be deceptive,” he said. “But in this case, they're bang-on.” + +“You want to talk about it?” I asked. + +“Somewhere else, huh? I hear they ring in the New Year every night at midnight; I think that'd be a little too much for me right now.” + +I led him out to my cart and cruised back to the place I shared with Lil, out in Kissimmee. He smoked eight cigarettes on the twenty minute ride, hammering one after another into his mouth, filling my runabout with stinging clouds. I kept glancing at him in the rear-view. He had his eyes closed, and in repose he looked dead. I could hardly believe that this was my vibrant action-hero pal of yore. + +Surreptitiously, I called Lil's phone. “I'm bringing him home,” I subvocalized. “He's in rough shape. Not sure what it's all about.” + +“I'll make up the couch,” she said. “And get some coffee together. Love you.” + +“Back atcha, kid,” I said. + +As we approached the tacky little swaybacked ranch-house, he opened his eyes. “You're a pal, Jules.” I waved him off. “No, really. I tried to think of who I could call, and you were the only one. I've missed you, bud.” + +“Lil said she'd put some coffee on,” I said. “You sound like you need it.” + +Lil was waiting on the sofa, a folded blanket and an extra pillow on the side table, a pot of coffee and some Disneyland Beijing mugs beside them. She stood and extended her hand. “I'm Lil,” she said. + +“Dan,” he said. “It's a pleasure.” + +I knew she was pinging his Whuffie and I caught her look of surprised disapproval. Us oldsters who predate Whuffie know that it's important; but to the kids, it's the /{world}/. Someone without any is automatically suspect. I watched her recover quickly, smile, and surreptitiously wipe her hand on her jeans. “Coffee?” she said. + +“Oh, yeah,” Dan said, and slumped on the sofa. + +She poured him a cup and set it on a coaster on the coffee table. “I'll let you boys catch up, then,” she said, and started for the bedroom. + +“No,” Dan said. “Wait. If you don't mind. I think it'd help if I could talk to someone… younger, too.” + +She set her face in the look of chirpy helpfulness that all the second-gen castmembers have at their instant disposal and settled into an armchair. She pulled out her pipe and lit a rock. I went through my crack period before she was born, just after they made it decaf, and I always felt old when I saw her and her friends light up. Dan surprised me by holding out a hand to her and taking the pipe. He toked heavily, then passed it back. + +Dan closed his eyes again, then ground his fists into them, sipped his coffee. It was clear he was trying to figure out where to start. + +“I believed that I was braver than I really am, is what it boils down to,” he said. + +“Who doesn't?” I said. + +“I really thought I could do it. I knew that someday I'd run out of things to do, things to see. I knew that I'd finish some day. You remember, we used to argue about it. I swore I'd be done, and that would be the end of it. And now I am. There isn't a single place left on-world that isn't part of the Bitchun Society. There isn't a single thing left that I want any part of.” + +“So deadhead for a few centuries,” I said. “Put the decision off.” + +“No!” he shouted, startling both of us. “I'm /{done}/. It's /{over}/.” + +“So do it,” Lil said. + +“I /{can't}/,” he sobbed, and buried his face in his hands. He cried like a baby, in great, snoring sobs that shook his whole body. Lil went into the kitchen and got some tissue, and passed it to me. I sat alongside him and awkwardly patted his back. + +“Jesus,” he said, into his palms. “Jesus.” + +“Dan?” I said, quietly. + +He sat up and took the tissue, wiped off his face and hands. “Thanks,” he said. “I've tried to make a go of it, really I have. I've spent the last eight years in Istanbul, writing papers on my missions, about the communities. I did some followup studies, interviews. No one was interested. Not even me. I smoked a lot of hash. It didn't help. So, one morning I woke up and went to the bazaar and said good bye to the friends I'd made there. Then I went to a pharmacy and had the man make me up a lethal injection. He wished me good luck and I went back to my rooms. I sat there with the hypo all afternoon, then I decided to sleep on it, and I got up the next morning and did it all over again. I looked inside myself, and I saw that I didn't have the guts. I just didn't have the guts. I've stared down the barrels of a hundred guns, had a thousand knives pressed up against my throat, but I didn't have the guts to press that button.” + +“You were too late,” Lil said. + +We both turned to look at her. + +“You were a decade too late. Look at you. You're pathetic. If you killed yourself right now, you'd just be a washed-up loser who couldn't hack it. If you'd done it ten years earlier, you would've been going out on top—a champion, retiring permanently.” She set her mug down with a harder-than-necessary clunk. + +Sometimes, Lil and I are right on the same wavelength. Sometimes, it's like she's on a different planet. All I could do was sit there, horrified, and she was happy to discuss the timing of my pal's suicide. + +But she was right. Dan nodded heavily, and I saw that he knew it, too. + +“A day late and a dollar short,” he sighed. + +“Well, don't just sit there,” she said. “You know what you've got to do.” + +“What?” I said, involuntarily irritated by her tone. + +She looked at me like I was being deliberately stupid. “He's got to get back on top. Cleaned up, dried out, into some productive work. Get that Whuffie up, too. /{Then}/ he can kill himself with dignity.” + +It was the stupidest thing I'd ever heard. Dan, though, was cocking an eyebrow at her and thinking hard. “How old did you say you were?” he asked. + +“Twenty-three,” she said. + +“Wish I'd had your smarts at twenty-three,” he said, and heaved a sigh, straightening up. “Can I stay here while I get the job done?” + +I looked askance at Lil, who considered for a moment, then nodded. + +“Sure, pal, sure,” I said. I clapped him on the shoulder. “You look beat.” + +“Beat doesn't begin to cover it,” he said. + +“Good night, then,” I said. + +1~ CHAPTER 2 + +Ad-hocracy works well, for the most part. Lil's folks had taken over the running of Liberty Square with a group of other interested, compatible souls. They did a fine job, racked up gobs of Whuffie, and anyone who came around and tried to take it over would be so reviled by the guests they wouldn't find a pot to piss in. Or they'd have such a wicked, radical approach that they'd ouster Lil's parents and their pals, and do a better job. + +It can break down, though. There were pretenders to the throne—a group who'd worked with the original ad-hocracy and then had moved off to other pursuits—some of them had gone to school, some of them had made movies, written books, or gone off to Disneyland Beijing to help start things up. A few had deadheaded for a couple decades. + +They came back to Liberty Square with a message: update the attractions. The Liberty Square ad-hocs were the staunchest conservatives in the Magic Kingdom, preserving the wheezing technology in the face of a Park that changed almost daily. The newcomer/old-timers were on-side with the rest of the Park, had their support, and looked like they might make a successful go of it. + +So it fell to Lil to make sure that there were no bugs in the meager attractions of Liberty Square: the Hall of the Presidents, the Liberty Belle riverboat, and the glorious Haunted Mansion, arguably the coolest attraction to come from the fevered minds of the old-time Disney Imagineers. + +I caught her backstage at the Hall of the Presidents, tinkering with Lincoln II, the backup animatronic. Lil tried to keep two of everything running at speed, just in case. She could swap out a dead bot for a backup in five minutes flat, which is all that crowd-control would permit. + +It had been two weeks since Dan's arrival, and though I'd barely seen him in that time, his presence was vivid in our lives. Our little ranch-house had a new smell, not unpleasant, of rejuve and hope and loss, something barely noticeable over the tropical flowers nodding in front of our porch. My phone rang three or four times a day, Dan checking in from his rounds of the Park, seeking out some way to accumulate personal capital. His excitement and dedication to the task were inspiring, pulling me into his over-the-top-and-damn-the-torpedoes mode of being. + +“You just missed Dan,” she said. She had her head in Lincoln's chest, working with an autosolder and a magnifier. Bent over, red hair tied back in a neat bun, sweat sheening her wiry freckled arms, smelling of girl-sweat and machine lubricant, she made me wish there were a mattress somewhere backstage. I settled for patting her behind affectionately, and she wriggled appreciatively. “He's looking better.” + +His rejuve had taken him back to apparent 25, the way I remembered him. He was rawboned and leathery, but still had the defeated stoop that had startled me when I saw him at the Adventurer's Club. “What did he want?” + +“He's been hanging out with Debra—he wanted to make sure I knew what she's up to.” + +Debra was one of the old guard, a former comrade of Lil's parents. She'd spent a decade in Disneyland Beijing, coding sim-rides. If she had her way, we'd tear down every marvelous rube goldberg in the Park and replace them with pristine white sim boxes on giant, articulated servos. + +The problem was that she was /{really good}/ at coding sims. Her Great Movie Ride rehab at MGM was breathtaking—the Star Wars sequence had already inspired a hundred fan-sites that fielded millions of hits. + +She'd leveraged her success into a deal with the Adventureland ad-hocs to rehab the Pirates of the Caribbean, and their backstage areas were piled high with reference: treasure chests and cutlasses and bowsprits. It was terrifying to walk through; the Pirates was the last ride Walt personally supervised, and we'd thought it was sacrosanct. But Debra had built a Pirates sim in Beijing, based on Chend I Sao, the XIXth century Chinese pirate queen, which was credited with rescuing the Park from obscurity and ruin. The Florida iteration would incorporate the best aspects of its Chinese cousin—the AI-driven sims that communicated with each other and with the guests, greeting them by name each time they rode and spinning age-appropriate tales of piracy on the high seas; the spectacular fly-through of the aquatic necropolis of rotting junks on the sea-floor; the thrilling pitch and yaw of the sim as it weathered a violent, breath-taking storm—but with Western themes: wafts of Jamaican pepper sauce crackling through the air; liquid Afro-Caribbean accents; and swordfights conducted in the manner of the pirates who plied the blue waters of the New World. Identical sims would stack like cordwood in the space currently occupied by the bulky ride-apparatus and dioramas, quintupling capacity and halving load-time. + +“So, what's she up to?” + +Lil extracted herself from the Rail-Splitter's mechanical guts and made a comical moue of worry. “She's rehabbing the Pirates—and doing an incredible job. They're ahead of schedule, they've got good net-buzz, the focus groups are cumming themselves.” The comedy went out of her expression, baring genuine worry. + +She turned away and closed up Honest Abe, then fired her finger at him. Smoothly, he began to run through his spiel, silent but for the soft hum and whine of his servos. Lil mimed twiddling a knob and his audiotrack kicked in low: “All the armies of Europe, Asia, and Africa /{combined}/ could not, by force, make a track on the Blue Ridge, nor take a drink from the Ohio. If destruction be our lot, then we ourselves must be its author—and its finisher.” She mimed turning down the gain and he fell silent again. + +“You said it, Mr. President,” she said, and fired her finger at him again, powering him down. She bent and adjusted his hand-sewn period topcoat, then carefully wound and set the turnip-watch in his vest-pocket. + +I put my arm around her shoulders. “You're doing all you can—and it's good work,” I said. I'd fallen into the easy castmember mode of speaking, voicing bland affirmations. Hearing the words, I felt a flush of embarrassment. I pulled her into a long, hard hug and fumbled for better reassurance. Finding no words that would do, I gave her a final squeeze and let her go. + +She looked at me sidelong and nodded her head. “It'll be fine, of course,” she said. “I mean, the worst possible scenario is that Debra will do her job very, very well, and make things even better than they are now. That's not so bad.” + +This was a 180-degree reversal of her position on the subject the last time we'd talked, but you don't live more than a century without learning when to point out that sort of thing and when not to. + +My cochlea struck twelve noon and a HUD appeared with my weekly backup reminder. Lil was maneuvering Ben Franklin II out of his niche. I waved good-bye at her back and walked away, to an uplink terminal. Once I was close enough for secure broadband communications, I got ready to back up. My cochlea chimed again and I answered it. + +“Yes,” I subvocalized, impatiently. I hated getting distracted from a backup—one of my enduring fears was that I'd forget the backup altogether and leave myself vulnerable for an entire week until the next reminder. I'd lost the knack of getting into habits in my adolescence, giving in completely to machine-generated reminders over conscious choice. + +“It's Dan.” I heard the sound of the Park in full swing behind him—children's laughter; bright, recorded animatronic spiels; the tromp of thousands of feet. “Can you meet me at the Tiki Room? It's pretty important.” + +“Can it wait for fifteen?” I asked. + +“Sure—see you in fifteen.” + +I rung off and initiated the backup. A status-bar zipped across a HUD, dumping the parts of my memory that were purely digital; then it finished and started in on organic memory. My eyes rolled back in my head and my life flashed before my eyes. + +1~ CHAPTER 3 + +The Bitchun Society has had much experience with restores from backup—in the era of the cure for death, people live pretty recklessly. Some people get refreshed a couple dozen times a year. + +Not me. I hate the process. Not so much that I won't participate in it. Everyone who had serious philosophical conundra on that subject just, you know, /{died}/, a generation before. The Bitchun Society didn't need to convert its detractors, just outlive them. + +The first time I died, it was not long after my sixtieth birthday. I was SCUBA diving at Playa Coral, near Veradero, Cuba. Of course, I don't remember the incident, but knowing my habits at that particular dive-site and having read the dive-logs of my SCUBA-buddies, I've reconstructed the events. + +I was eeling my way through the lobster-caves, with a borrowed bottle and mask. I'd also borrowed a wetsuit, but I wasn't wearing it—the blood-temp salt water was balm, and I hated erecting barriers between it and my skin. The caves were made of coral and rocks, and they coiled and twisted like intestines. Through each hole and around each corner, there was a hollow, rough sphere of surpassing, alien beauty. Giant lobsters skittered over the walls and through the holes. Schools of fish as bright as jewels darted and executed breath-taking precision maneuvers as I disturbed their busy days. I do some of my best thinking under water, and I'm often slipping off into dangerous reverie at depth. Normally, my diving buddies ensure that I don't hurt myself, but this time I got away from them, spidering forward into a tiny hole. + +Where I got stuck. + +My diving buddies were behind me, and I rapped on my bottle with the hilt of my knife until one of them put a hand on my shoulder. My buddies saw what was up, and attempted to pull me loose, but my bottle and buoyancy-control vest were firmly wedged. The others exchanged hand signals, silently debating the best way to get me loose. Suddenly, I was thrashing and kicking, and then I disappeared into the cave, minus my vest and bottle. I'd apparently attempted to cut through my vest's straps and managed to sever the tube of my regulator. After inhaling a jolt of sea water, I'd thrashed free into the cave, rolling into a monstrous patch of spindly fire-coral. I'd inhaled another lungful of water and kicked madly for a tiny hole in the cave's ceiling, whence my buddies retrieved me shortly thereafter, drowned-blue except for the patchy red welts from the stinging coral. + +In those days, making a backup was a lot more complicated; the procedure took most of a day, and had to be undertaken at a special clinic. Luckily, I'd had one made just before I left for Cuba, a few weeks earlier. My next-most-recent backup was three years old, dating from the completion of my second symphony. + +They recovered me from backup and into a force-grown clone at Toronto General. As far as I knew, I'd laid down in the backup clinic one moment and arisen the next. It took most of a year to get over the feeling that the whole world was putting a monstrous joke over on me, that the drowned corpse I'd seen was indeed my own. In my mind, the rebirth was figurative as well as literal—the missing time was enough that I found myself hard-pressed to socialize with my pre-death friends. + +I told Dan the story during our first friendship, and he immediately pounced on the fact that I'd gone to Disney World to spend a week sorting out my feelings, reinventing myself, moving to space, marrying a crazy lady. He found it very curious that I always rebooted myself at Disney World. When I told him that I was going to live there someday, he asked me if that would mean that I was done reinventing myself. Sometimes, as I ran my fingers through Lil's sweet red curls, I thought of that remark and sighed great gusts of contentment and marveled that my friend Dan had been so prescient. + +The next time I died, they'd improved the technology somewhat. I'd had a massive stroke in my seventy-third year, collapsing on the ice in the middle of a house-league hockey game. By the time they cut my helmet away, the hematomae had crushed my brain into a pulpy, blood-sotted mess. I'd been lax in backing up, and I lost most of a year. But they woke me gently, with a computer-generated precis of the events of the missing interval, and a counselor contacted me daily for a year until I felt at home again in my skin. Again, my life rebooted, and I found myself in Disney World, methodically flensing away the relationships I'd built and starting afresh in Boston, living on the ocean floor and working the heavy-metal harvesters, a project that led, eventually, to my Chem thesis at U of T. + +After I was shot dead at the Tiki Room, I had the opportunity to appreciate the great leaps that restores had made in the intervening ten years. I woke in my own bed, instantly aware of the events that led up to my third death as seen from various third-party POVs: security footage from the Adventureland cameras, synthesized memories extracted from Dan's own backup, and a computer-generated fly-through of the scene. I woke feeling preternaturally calm and cheerful, and knowing that I felt that way because of certain temporary neurotransmitter presets that had been put in place when I was restored. + +Dan and Lil sat at my bedside. Lil's tired, smiling face was limned with hairs that had snuck loose of her ponytail. She took my hand and kissed the smooth knuckles. Dan smiled beneficently at me and I was seized with a warm, comforting feeling of being surrounded by people who really loved me. I dug for words appropriate to the scene, decided to wing it, opened my mouth and said, to my surprise, “I have to pee.” + +Dan and Lil smiled at each other. I lurched out of the bed, naked, and thumped to the bathroom. My muscles were wonderfully limber, with a brand-new spring to them. After I flushed I leaned over and took hold of my ankles, then pulled my head right to the floor, feeling the marvelous flexibility of my back and legs and buttocks. A scar on my knee was missing, as were the many lines that had crisscrossed my fingers. When I looked in the mirror, I saw that my nose and earlobes were smaller and perkier. The familiar crow's-feet and the frown-lines between my eyebrows were gone. I had a day's beard all over—head, face, pubis, arms, legs. I ran my hands over my body and chuckled at the ticklish newness of it all. I was briefly tempted to depilate all over, just to keep this feeling of newness forever, but the neurotransmitter presets were evaporating and a sense of urgency over my murder was creeping up on me. + +I tied a towel around my waist and made my way back to the bedroom. The smells of tile-cleaner and flowers and rejuve were bright in my nose, effervescent as camphor. Dan and Lil stood when I came into the room and helped me to the bed. “Well, this /{sucks}/,” I said. + +I'd gone straight from the uplink through the utilidors—three quick cuts of security cam footage, one at the uplink, one in the corridor, and one at the exit in the underpass between Liberty Square and Adventureland. I seemed bemused and a little sad as I emerged from the door, and began to weave my way through the crowd, using a kind of sinuous, darting shuffle that I'd developed when I was doing field-work on my crowd-control thesis. I cut rapidly through the lunchtime crowd toward the long roof of the Tiki Room, thatched with strips of shimmering aluminum cut and painted to look like long grass. + +Fuzzy shots now, from Dan's POV, of me moving closer to him, passing close to a group of teenaged girls with extra elbows and knees, wearing environmentally controlled cloaks and cowls covered with Epcot Center logomarks. One of them is wearing a pith helmet, from the Jungle Traders shop outside of the Jungle Cruise. Dan's gaze flicks away, to the Tiki Room's entrance, where there is a short queue of older men, then back, just as the girl with the pith helmet draws a stylish little organic pistol, like a penis with a tail that coils around her arm. Casually, grinning, she raises her arm and gestures with the pistol, exactly like Lil does with her finger when she's uploading, and the pistol lunges forward. Dan's gaze flicks back to me. I'm pitching over, my lungs bursting out of my chest and spreading before me like wings, spinal gristle and viscera showering the guests before me. A piece of my nametag, now shrapnel, strikes Dan in the forehead, causing him to blink. When he looks again, the group of girls is still there, but the girl with the pistol is long gone. + +The fly-through is far less confused. Everyone except me, Dan and the girl is grayed-out. We're limned in highlighter yellow, moving in slow-motion. I emerge from the underpass and the girl moves from the Swiss Family Robinson Treehouse to the group of her friends. Dan starts to move towards me. The girl raises, arms and fires her pistol. The self-guiding smart-slug, keyed to my body chemistry, flies low, near ground level, weaving between the feet of the crowd, moving just below the speed of sound. When it reaches me, it screams upwards and into my spine, detonating once it's entered my chest cavity. + +The girl has already made a lot of ground, back toward the Adventureland/Main Street, USA gateway. The fly-through speeds up, following her as she merges with the crowds on the street, ducking and weaving between them, moving toward the breezeway at Sleeping Beauty Castle. She vanishes, then reappears, forty minutes later, in Tomorrowland, near the new Space Mountain complex, then disappears again. + +“Has anyone ID'd the girl?” I asked, once I'd finished reliving the events. The anger was starting to boil within me now. My new fists clenched for the first time, soft palms and uncallused fingertips. + +Dan shook his head. “None of the girls she was with had ever seen her before. The face was one of the Seven Sisters—Hope.” The Seven Sisters were a trendy collection of designer faces. Every second teenage girl wore one of them. + +“How about Jungle Traders?” I asked. “Did they have a record of the pith helmet purchase?” + +Lil frowned. “We ran the Jungle Traders purchases back for six months: only three matched the girl's apparent age; all three have alibis. Chances are she stole it.” + +“Why?” I asked, finally. In my mind's eye, I saw my lungs bursting out of my chest, like wings, like jellyfish, vertebrae spraying like shrapnel. I saw the girl's smile, an almost sexual smirk as she pulled the trigger on me. + +“It wasn't random,” Lil said. “The slug was definitely keyed to you—that means that she'd gotten close to you at some point.” + +Right—which meant that she'd been to Disney World in the last ten years. That narrowed it down, all right. + +“What happened to her after Tomorrowland?” I said. + +“We don't know,” Lil said. “Something wrong with the cameras. We lost her and she never reappeared.” She sounded hot and angry—she took equipment failures in the Magic Kingdom personally. + +“Who'd want to do this?” I asked, hating the self-pity in my voice. It was the first time I'd been murdered, but I didn't need to be a drama-queen about it. + +Dan's eyes got a far-away look. “Sometimes, people do things for reasons that seem perfectly reasonable to them, that the rest of the world couldn't hope to understand. I've seen a few assassinations, and they never made sense afterwards.” He stroked his chin. “Sometimes, it's better to look for temperament, rather than motivation: who /{could}/ do something like this?” + +Right. All we needed to do was investigate all the psychopaths who'd visited the Magic Kingdom in ten years. That narrowed it down considerably. I pulled up a HUD and checked the time. It had been four days since my murder. I had a shift coming up, working the turnstiles at the Haunted Mansion. I liked to pull a couple of those shifts a month, just to keep myself grounded; it helped to take a reality check while I was churning away in the rarified climate of my crowd-control simulations. + +I stood and went to my closet, started to dress. + +“/{What}/ are you doing?” Lil asked, alarmed. + +“I've got a shift. I'm running late.” + +“You're in no shape to work,” Lil said, tugging at my elbow. I jerked free of her. + +“I'm fine—good as new.” I barked a humorless laugh. “I'm not going to let those bastards disrupt my life any more.” + +/{Those bastards}/? I thought—when had I decided that there was more than one? But I knew it was true. There was no way that this was all planned by one person: it had been executed too precisely, too thoroughly. + +Dan moved to block the bedroom door. “Wait a second,” he said. “You need rest.” + +I fixed him with a doleful glare. “I'll decide that,” I said. He stepped aside. + +“I'll tag along, then,” he said. “Just in case.” + +I pinged my Whuffie. I was up a couple percentiles—sympathy Whuffie—but it was falling: Dan and Lil were radiating disapproval. Screw 'em. + +I got into my runabout and Dan scrambled for the passenger door as I put it in gear and sped out. + +“Are you sure you're all right?” Dan said as I nearly rolled the runabout taking the corner at the end of our cul-de-sac. + +“Why wouldn't I be?” I said. “I'm as good as new.” + +“Funny choice of words,” he said. “Some would say that you /{were}/ new.” + +I groaned. “Not this argument again,” I said. “I feel like me and no one else is making that claim. Who cares if I've been restored from a backup?” + +“All I'm saying is, there's a difference between /{you}/ and an exact copy of you, isn't there?” + +I knew what he was doing, distracting me with one of our old fights, but I couldn't resist the bait, and as I marshalled my arguments, it actually helped calm me down some. Dan was that kind of friend, a person who knew you better than you knew yourself. “So you're saying that if you were obliterated and then recreated, atom-for-atom, that you wouldn't be you anymore?” + +“For the sake of argument, sure. Being destroyed and recreated is different from not being destroyed at all, right?” + +“Brush up on your quantum mechanics, pal. You're being destroyed and recreated a trillion times a second.” + +“On a very, very small level—” + +“What difference does that make?” + +“Fine, I'll concede that. But you're not really an atom-for-atom copy. You're a clone, with a copied /{brain}/—that's not the same as quantum destruction.” + +“Very nice thing to say to someone who's just been murdered, pal. You got a problem with clones?” + +And we were off and running. + +The Mansion's cast were sickeningly cheerful and solicitous. Each of them made a point of coming around and touching the stiff, starched shoulder of my butler's costume, letting me know that if there was anything they could do for me… I gave them all a fixed smile and tried to concentrate on the guests, how they waited, when they arrived, how they dispersed through the exit gate. Dan hovered nearby, occasionally taking the eight minute, twenty-two second ride-through, running interference for me with the other castmembers. + +He was nearby when my break came up. I changed into civvies and we walked over the cobbled streets, past the Hall of the Presidents, noting as I rounded the corner that there was something different about the queue-area. Dan groaned. “They did it already,” he said. + +I looked closer. The turnstiles were blocked by a sandwich board: Mickey in a Ben Franklin wig and bifocals, holding a trowel. “Excuse our mess!” the sign declared. “We're renovating to serve you better!” + +I spotted one of Debra's cronies standing behind the sign, a self-satisfied smile on his face. He'd started off life as a squat, northern Chinese, but had had his bones lengthened and his cheekbones raised so that he looked almost elfin. I took one look at his smile and understood—Debra had established a toehold in Liberty Square. + +“They filed plans for the new Hall with the steering committee an hour after you got shot. The committee loved the plans; so did the net. They're promising not to touch the Mansion.” + +“You didn't mention this,” I said, hotly. + +“We thought you'd jump to conclusions. The timing was bad, but there's no indication that they arranged for the shooter. Everyone's got an alibi; furthermore, they've all offered to submit their backups for proof.” + +“Right,” I said. “Right. So they just /{happened}/ to have plans for a new Hall standing by. And they just /{happened}/ to file them after I got shot, when all our ad-hocs were busy worrying about me. It's all a big coincidence.” + +Dan shook his head. “We're not stupid, Jules. No one thinks that it's a coincidence. Debra's the sort of person who keeps a lot of plans standing by, just in case. But that just makes her a well-prepared opportunist, not a murderer.” + +I felt nauseated and exhausted. I was enough of a castmember that I sought out a utilidor before I collapsed against a wall, head down. Defeat seeped through me, saturating me. + +Dan crouched down beside me. I looked over at him. He was grinning wryly. “Posit,” he said, “for the moment, that Debra really did do this thing, set you up so that she could take over.” + +I smiled, in spite of myself. This was his explaining act, the thing he would do whenever I fell into one of his rhetorical tricks back in the old days. “All right, I've posited it.” + +“Why would she: one, take out you instead of Lil or one of the real old-timers; two, go after the Hall of Presidents instead of Tom Sawyer Island or even the Mansion; and three, follow it up with such a blatant, suspicious move?” + +“All right,” I said, warming to the challenge. “One: I'm important enough to be disruptive but not so important as to rate a full investigation. Two: Tom Sawyer Island is too visible, you can't rehab it without people seeing the dust from shore. Three, Debra's coming off of a decade in Beijing, where subtlety isn't real important.” + +“Sure,” Dan said, “sure.” Then he launched an answering salvo, and while I was thinking up my answer, he helped me to my feet and walked me out to my runabout, arguing all the way, so that by the time I noticed we weren't at the Park anymore, I was home and in bed. + +With all the Hall's animatronics mothballed for the duration, Lil had more time on her hands than she knew what to do with. She hung around the little bungalow, the two of us in the living room, staring blankly at the windows, breathing shallowly in the claustrophobic, superheated Florida air. I had my working notes on queue management for the Mansion, and I pecked at them aimlessly. Sometimes, Lil mirrored my HUD so she could watch me work, and made suggestions based on her long experience. + +It was a delicate process, this business of increasing throughput without harming the guest experience. But for every second I could shave off of the queue-to-exit time, I could put another sixty guests through and lop thirty seconds off total wait-time. And the more guests who got to experience the Mansion, the more of a Whuffie-hit Debra's people would suffer if they made a move on it. So I dutifully pecked at my notes, and found three seconds I could shave off the graveyard sequence by swiveling the Doom Buggy carriages stage-left as they descended from the attic window: by expanding their fields-of-vision, I could expose the guests to all the scenes more quickly. + +I ran the change in fly-through, then implemented it after closing and invited the other Liberty Square ad-hocs to come and test it out. + +It was another muggy winter evening, prematurely dark. The ad-hocs had enough friends and family with them that we were able to simulate an off-peak queue-time, and we all stood and sweated in the preshow area, waiting for the doors to swing open, listening to the wolf-cries and assorted boo-spookery from the hidden speakers. + +The doors swung open, revealing Lil in a rotting maid's uniform, her eyes lined with black, her skin powdered to a deathly pallor. She gave us a cold, considering glare, then intoned, “Master Gracey requests more bodies.” + +As we crowded into the cool, musty gloom of the parlor, Lil contrived to give my ass an affectionate squeeze. I turned to return the favor, and saw Debra's elfin comrade looming over Lil's shoulder. My smile died on my lips. + +The man locked eyes with me for a moment, and I saw something in there—some admixture of cruelty and worry that I didn't know what to make of. He looked away immediately. I'd known that Debra would have spies in the crowd, of course, but with elf-boy watching, I resolved to make this the best show I knew how. + +It's subtle, this business of making the show better from within. Lil had already slid aside the paneled wall that led to stretch-room number two, the most recently serviced one. Once the crowd had moved inside, I tried to lead their eyes by adjusting my body language to poses of subtle attention directed at the new spotlights. When the newly remastered soundtrack came from behind the sconce-bearing gargoyles at the corners of the octagonal room, I leaned my body slightly in the direction of the moving stereo-image. And an instant before the lights snapped out, I ostentatiously cast my eyes up into the scrim ceiling, noting that others had taken my cue, so they were watching when the UV-lit corpse dropped from the pitch-dark ceiling, jerking against the noose at its neck. + +The crowd filed into the second queue area, where they boarded the Doom Buggies. There was a low buzz of marveling conversation as we made our way onto the moving sidewalk. I boarded my Doom Buggy and an instant later, someone slid in beside me. It was the elf. + +He made a point of not making eye contact with me, but I sensed his sidelong glances at me as we rode through past the floating chandelier and into the corridor where the portraits' eyes watched us. Two years before, I'd accelerated this sequence and added some random swivel to the Doom Buggies, shaving 25 seconds off the total, taking the hourly throughput cap from 2365 to 2600. It was the proof-of-concept that led to all the other seconds I'd shaved away since. The violent pitching of the Buggy brought me and the elf into inadvertent contact with one another, and when I brushed his hand as I reached for the safety bar, I felt that it was cold and sweaty. + +He was nervous! /{He}/ was nervous. What did /{he}/ have to be nervous about? I was the one who'd been murdered—maybe he was nervous because he was supposed to finish the job. I cast my own sidelong looks at him, trying to see suspicious bulges in his tight clothes, but the Doom Buggy's pebbled black plastic interior was too dim. Dan was in the Buggy behind us, with one of the Mansion's regular castmembers. I rang his cochlea and subvocalized: “Get ready to jump out on my signal.” Anyone leaving their Buggy would interrupt an infrared beam and stop the ride system. I knew I could rely on Dan to trust me without a lot of explaining, which meant that I could keep a close watch on Debra's crony. + +We went past the hallway of mirrors and into the hallway of doors, where monstrous hands peeked out around the sills, straining against the hinges, recorded groans mixed in with pounding. I thought about it—if I wanted to kill someone on the Mansion, what would be the best place to do it? The attic staircase-- the next sequence—seemed like a good bet. A cold clarity washed over me. The elf would kill me in the gloom of the staircase, dump me out over the edge at the blind turn toward the graveyard, and that would be it. Would he be able to do it if I were staring straight at him? He seemed terribly nervous as it was. I swiveled in my seat and looked him straight in the eye. + +He quirked half a smile at me and nodded a greeting. I kept on staring at him, my hands balled into fists, ready for anything. We rode down the staircase, facing up, listening to the clamour of voices from the cemetery and the squawk of the red-eyed raven. I caught sight of the quaking groundkeeper animatronic from the corner of my eye and startled. I let out a subvocal squeal and was pitched forward as the ride system shuddered to a stop. + +“Jules?” came Dan's voice in my cochlea. “You all right?” + +He'd heard my involuntary note of surprise and had leapt clear of the Buggy, stopping the ride. The elf was looking at me with a mixture of surprise and pity. + +“It's all right, it's all right. False alarm.” I paged Lil and subvocalized to her, telling her to start up the ride ASAP, it was all right. + +I rode the rest of the way with my hands on the safety bar, my eyes fixed ahead of me, steadfastly ignoring the elf. I checked the timer I'd been running. The demo was a debacle—instead of shaving off three seconds, I'd added thirty. I wanted to cry. + +I debarked the Buggy and stalked quickly out of the exit queue, leaning heavily against the fence, staring blindly at the pet cemetery. My head swam: I was out of control, jumping at shadows. I was spooked. + +And I had no reason to be. Sure, I'd been murdered, but what had it cost me? A few days of “unconsciousness” while they decanted my backup into my new body, a merciful gap in memory from my departure at the backup terminal up until my death. I wasn't one of those nuts who took death /{seriously}/. It wasn't like they'd done something /{permanent}/. + +In the meantime, I /{had}/ done something permanent: I'd dug Lil's grave a little deeper, endangered the ad-hocracy and, worst of all, the Mansion. I'd acted like an idiot. I tasted my dinner, a wolfed-down hamburger, and swallowed hard, forcing down the knob of nausea. + +I sensed someone at my elbow, and thinking it was Lil, come to ask me what had gone on, I turned with a sheepish grin and found myself facing the elf. + +He stuck his hand out and spoke in the flat no-accent of someone running a language module. “Hi there. We haven't been introduced, but I wanted to tell you how much I enjoy your work. I'm Tim Fung.” + +I pumped his hand, which was still cold and particularly clammy in the close heat of the Florida night. “Julius,” I said, startled at how much like a bark it sounded. /{Careful}/, I thought, /{no need to escalate the hostilities.}/ “It's kind of you to say that. I like what you-all have done with the Pirates.” + +He smiled: a genuine, embarrassed smile, as though he'd just been given high praise from one of his heroes. “Really? I think it's pretty good—the second time around you get a lot of chances to refine things, really clarify the vision. Beijing—well, it was exciting, but it was rushed, you know? I mean, we were really struggling. Every day, there was another pack of squatters who wanted to tear the Park down. Debra used to send me out to give the children piggyback rides, just to keep our Whuffie up while she was evicting the squatters. It was good to have the opportunity to refine the designs, revisit them without the floor show.” + +I knew about this, of course—Beijing had been a real struggle for the ad-hocs who built it. Lots of them had been killed, many times over. Debra herself had been killed every day for a week and restored to a series of prepared clones, beta-testing one of the ride systems. It was faster than revising the CAD simulations. Debra had a reputation for pursuing expedience. + +“I'm starting to find out how it feels to work under pressure,” I said, and nodded significantly at the Mansion. I was gratified to see him look embarrassed, then horrified. + +“We would /{never}/ touch the Mansion,” he said. “It's /{perfect}/!” + +Dan and Lil sauntered up as I was preparing a riposte. They both looked concerned—now that I thought of it, they'd both seemed incredibly concerned about me since the day I was revived. + +Dan's gait was odd, stilted, like he was leaning on Lil for support. They looked like a couple. An irrational sear of jealousy jetted through me. I was an emotional wreck. Still, I took Lil's big, scarred hand in mine as soon as she was in reach, then cuddled her to me protectively. She had changed out of her maid's uniform into civvies: smart coveralls whose micropore fabric breathed in time with her own respiration. + +“Lil, Dan, I want you to meet Tim Fung. He was just telling me war stories from the Pirates project in Beijing.” + +Lil waved and Dan gravely shook his hand. “That was some hard work,” Dan said. + +It occurred to me to turn on some Whuffie monitors. It was normally an instantaneous reaction to meeting someone, but I was still disoriented. I pinged the elf. He had a lot of left-handed Whuffie; respect garnered from people who shared very few of my opinions. I expected that. What I didn't expect was that his weighted Whuffie score, the one that lent extra credence to the rankings of people I respected, was also high—higher than my own. I regretted my nonlinear behavior even more. Respect from the elf—/{Tim}/, I had to remember to call him Tim—would carry a lot of weight in every camp that mattered. + +Dan's score was incrementing upwards, but he still had a rotten profile. He had accrued a good deal of left-handed Whuffie, and I curiously backtraced it to the occasion of my murder, when Debra's people had accorded him a generous dollop of props for the levelheaded way he had scraped up my corpse and moved it offstage, minimizing the disturbance in front of their wondrous Pirates. + +I was fugueing, wandering off on the kind of mediated reverie that got me killed on the reef at Playa Coral, and I came out of it with a start, realizing that the other three were politely ignoring my blown buffer. I could have run backwards through my short-term memory to get the gist of the conversation, but that would have lengthened the pause. Screw it. “So, how're things going over at the Hall of the Presidents?” I asked Tim. + +Lil shot me a cautioning look. She'd ceded the Hall to Debra's ad-hocs, that being the only way to avoid the appearance of childish disattention to the almighty Whuffie. Now she had to keep up the fiction of good-natured cooperation—that meant not shoulder-surfing Debra, looking for excuses to pounce on her work. + +Tim gave us the same half-grin he'd greeted me with. On his smooth, pointed features, it looked almost irredeemably cute. “We're doing good stuff, I think. Debra's had her eye on the Hall for years, back in the old days, before she went to China. We're replacing the whole thing with broadband uplinks of gestalts from each of the Presidents' lives: newspaper headlines, speeches, distilled biographies, personal papers. It'll be like having each President /{inside}/ you, core-dumped in a few seconds. Debra said we're going to /{flash-bake}/ the Presidents on your mind!” His eyes glittered in the twilight. + +Having only recently experienced my own cerebral flash-baking, Tim's description struck a chord in me. My personality seemed to be rattling around a little in my mind, as though it had been improperly fitted. It made the idea of having the gestalt of 50-some Presidents squashed in along with it perversely appealing. + +“Wow,” I said. “That sounds wild. What do you have in mind for physical plant?” The Hall as it stood had a quiet, patriotic dignity cribbed from a hundred official buildings of the dead USA. Messing with it would be like redesigning the stars-and-bars. + +“That's not really my area,” Tim said. “I'm a programmer. But I could have one of the designers squirt some plans at you, if you want.” + +“That would be fine,” Lil said, taking my elbow. “I think we should be heading home, now, though.” She began to tug me away. Dan took my other elbow. Behind her, the Liberty Belle glowed like a ghostly wedding cake in the twilight. + +“That's too bad,” Tim said. “My ad-hoc is pulling an all-nighter on the new Hall. I'm sure they'd love to have you drop by.” + +The idea seized hold of me. I would go into the camp of the enemy, sit by their fire, learn their secrets. “That would be /{great}/!” I said, too loudly. My head was buzzing slightly. Lil's hands fell away. + +“But we've got an early morning tomorrow,” Lil said. “You've got a shift at eight, and I'm running into town for groceries.” She was lying, but she was telling me that this wasn't her idea of a smart move. But my faith was unshakeable. + +“Eight a.m. shift? No problem—I'll be right here when it starts. I'll just grab a shower at the Contemporary in the morning and catch the monorail back in time to change. All right?” + +Dan tried. “But Jules, we were going to grab some dinner at Cinderella's Royal Table, remember? I made reservations.” + +“Aw, we can eat any time,” I said. “This is a hell of an opportunity.” + +“It sure is,” Dan said, giving up. “Mind if I come along?” + +He and Lil traded meaningful looks that I interpreted to mean, /{If he's going to be a nut, one of us really should stay with him}/. I was past caring—I was going to beard the lion in his den! + +Tim was apparently oblivious to all of this. “Then it's settled! Let's go.” + +On the walk to the Hall, Dan kept ringing my cochlea and I kept sending him straight to voicemail. All the while, I kept up a patter of small-talk with him and Tim. I was determined to make up for my debacle in the Mansion with Tim, win him over. + +Debra's people were sitting around in the armchairs onstage, the animatronic presidents stacked in neat piles in the wings. Debra was sprawled in Lincoln's armchair, her head cocked lazily, her legs extended before her. The Hall's normal smells of ozone and cleanliness were overridden by sweat and machine-oil, the stink of an ad-hoc pulling an all-nighter. The Hall took fifteen years to research and execute, and a couple of days to tear down. + +She was au-naturel, still wearing the face she'd been born with, albeit one that had been regenerated dozens of times after her deaths. It was patrician, waxy, long, with a nose that was made for staring down. She was at least as old as I was, though she was only apparent 22. I got the sense that she picked this age because it was one that afforded boundless reserves of energy. + +She didn't deign to rise as I approached, but she did nod languorously at me. The other ad-hocs had been split into little clusters, hunched over terminals. They all had the raccoon-eyed, sleep-deprived look of fanatics, even Debra, who managed to look lazy and excited simultaneously. + +/{Did you have me killed}/? I wondered, staring at Debra. After all, she'd been killed dozens, if not hundreds of times. It might not be such a big deal for her. + +“Hi there,” I said, brightly. “Tim offered to show us around! You know Dan, right?” + +Debra nodded at him. “Oh, sure. Dan and I are pals, right?” + +Dan's poker face didn't twitch a muscle. “Hello, Debra,” he said. He'd been hanging out with them since Lil had briefed him on the peril to the Mansion, trying to gather some intelligence for us to use. They knew what he was up to, of course, but Dan was a fairly charming guy and he worked like a mule, so they tolerated him. But it seemed like he'd violated a boundary by accompanying me, as though the polite fiction that he was more a part of Debra's ad-hoc than Lil's was shattered by my presence. + +Tim said, “Can I show them the demo, Debra?” + +Debra quirked an eyebrow, then said, “Sure, why not. You'll like this, guys.” + +Tim hustled us backstage, where Lil and I used to sweat over the animatronics and cop surreptitious feels. Everything had been torn loose, packed up, stacked. They hadn't wasted a moment—they'd spent a week tearing down a show that had run for more than a century. The scrim that the projected portions of the show normally screened on was ground into the floor, spotted with grime, footprints and oil. + +Tim showed me to a half-assembled backup terminal. Its housing was off, and any number of wireless keyboards, pointers and gloves lay strewn about it. It had the look of a prototype. + +“This is it—our uplink. So far, we've got a demo app running on it: Lincoln's old speech, along with the civil-war montage. Just switch on guest access and I'll core-dump it to you. It's wild.” + +I pulled up my HUD and switched on guest access. Tim pointed a finger at the terminal and my brain was suffused with the essence of Lincoln: every nuance of his speech, the painstakingly researched movement tics, his warts and beard and topcoat. It almost felt like I /{was}/ Lincoln, for a moment, and then it passed. But I could still taste the lingering coppery flavor of cannon-fire and chewing tobacco. + +I staggered backwards. My head swam with flash-baked sense-impressions, rich and detailed. I knew on the spot that Debra's Hall of the Presidents was going to be a hit. + +Dan took a shot off the uplink, too. Tim and I watched him as his expression shifted from skepticism to delight. Tim looked expectantly at me. + +“That's really fine,” I said. “Really, really fine. Moving.” + +Tim blushed. “Thanks! I did the gestalt programming—it's my specialty.” + +Debra spoke up from behind him—she'd sauntered over while Dan was getting his jolt. “I got the idea in Beijing, when I was dying a lot. There's something wonderful about having memories implanted, like you're really working your brain. I love the synthetic clarity of it all.” + +Tim sniffed. “Not synthetic at all,” he said, turning to me. “It's nice and soft, right?” + +I sensed deep political shoals and was composing my reply when Debra said: “Tim keeps trying to make it all more impressionistic, less computer-y. He's wrong, of course. We don't want to simulate the experience of watching the show—we want to /{transcend it}/.” + +Tim nodded reluctantly. “Sure, transcend it. But the way we do that is by making the experience /{human}/, a mile in the presidents' shoes. Empathy-driven. What's the point of flash-baking a bunch of dry facts on someone's brain?” + +1~ CHAPTER 4 + +One night in the Hall of Presidents convinced me of three things: + +_1 That Debra's people had had me killed, and screw their alibis, + +_1 That they would kill me again, when the time came for them to make a play for the Haunted Mansion, + +_1 That our only hope for saving the Mansion was a preemptive strike against them: we had to hit them hard, where it hurt. + +Dan and I had been treated to eight hours of insectile precision in the Hall of Presidents, Debra's people working with effortless cooperation born of the adversity they'd faced in Beijing. Debra moved from team to team, making suggestions with body language as much as with words, leaving bursts of inspired activity in her wake. + +It was that precision that convinced me of point one. Any ad-hoc this tight could pull off anything if it advanced their agenda. Ad-hoc? Hell, call them what they were: an army. + +Point two came to me when I sampled the Lincoln build that Tim finished at about three in the morning, after intensive consultation with Debra. The mark of a great ride is that it gets better the second time around, as the detail and flourishes start to impinge on your consciousness. The Mansion was full of little gimcracks and sly nods that snuck into your experience on each successive ride. + +Tim shuffled his feet nervously, bursting with barely restrained pride as I switched on public access. He dumped the app to my public directory, and, gingerly, I executed it. + +God! God and Lincoln and cannon-fire and oratory and ploughs and mules and greatcoats! It rolled over me, it punched through me, it crashed against the inside of my skull and rebounded. The first pass through, there had been a sense of order, of narrative, but this, this was gestalt, the whole thing in one undifferentiated ball, filling me and spilling over. It was panicky for a moment, as the essence of Lincolness seemed to threaten my own personality, and, just as it was about to overwhelm me, it receded, leaving behind a rush of endorphin and adrenaline that made me want to jump. + +“Tim,” I gasped. “Tim! That was…” Words failed me. I wanted to hug him. What we could do for the Mansion with this! What elegance! Directly imprinting the experience, without recourse to the stupid, blind eyes; the thick, deaf ears. + +Tim beamed and basked, and Debra nodded solemnly from her throne. “You liked it?” Tim said. I nodded, and staggered back to the theatre seat where Dan slept, head thrown back, snores softly rattling in his throat. + +Incrementally, reason trickled back into my mind, and with it came ire. How dare they? The wonderful compromises of technology and expense that had given us the Disney rides—rides that had entertained the world for two centuries and more—could never compete head to head with what they were working on. + +My hands knotted into fists in my lap. Why the fuck couldn't they do this somewhere else? Why did they have to destroy everything I loved to realize this? They could build this tech anywhere—they could distribute it online and people could access it from their living rooms! + +But that would never do. Doing it here was better for the old Whuffie—they'd make over Disney World and hold it, a single ad-hoc where three hundred had flourished before, smoothly operating a park twice the size of Manhattan. + +I stood and stalked out of the theater, out into Liberty Square and the Park. It had cooled down without drying out, and there was a damp chill that crawled up my back and made my breath stick in my throat. I turned to contemplate the Hall of Presidents, staid and solid as it had been since my boyhood and before, a monument to the Imagineers who anticipated the Bitchun Society, inspired it. + +I called Dan, still snoring back in the theater, and woke him. He grunted unintelligibly in my cochlea. + +“They did it—they killed me.” I knew they had, and I was glad. It made what I had to do next easier. + +“Oh, Jesus. They didn't kill you—they offered their backups, remember? They couldn't have done it.” + +“Bullshit!” I shouted into the empty night. “Bullshit! They did it, and they fucked with their backups somehow. They must have. It's all too neat and tidy. How else could they have gotten so far with the Hall so fast? They knew it was coming, they planned a disruption, and they moved in. Tell me that you think they just had these plans lying around and moved on them when they could.” + +Dan groaned, and I heard his joints popping. He must have been stretching. The Park breathed around me, the sounds of maintenance crews scurrying in the night. “I do believe that. Clearly, you don't. It's not the first time we've disagreed. So now what?” + +“Now we save the Mansion,” I said. “Now we fight back.” + +“Oh, shit,” Dan said. + +I have to admit, there was a part of me that concurred. + +My opportunity came later that week. Debra's ad-hocs were showboating, announcing a special preview of the new Hall to the other ad-hocs that worked in the Park. It was classic chutzpah, letting the key influencers in the Park in long before the bugs were hammered out. A smooth run would garner the kind of impressed reaction that guaranteed continued support while they finished up; a failed demo could doom them. There were plenty of people in the Park who had a sentimental attachment to the Hall of Presidents, and whatever Debra's people came up with would have to answer their longing. + +“I'm going to do it during the demo,” I told Dan, while I piloted the runabout from home to the castmember parking. I snuck a look at him to gauge his reaction. He had his poker face on. + +“I'm not going to tell Lil,” I continued. “It's better that she doesn't know—plausible deniability.” + +“And me?” he said. “Don't I need plausible deniability?” + +“No,” I said. “No, you don't. You're an outsider. You can make the case that you were working on your own—gone rogue.” I knew it wasn't fair. Dan was here to build up his Whuffie, and if he was implicated in my dirty scheme, he'd have to start over again. I knew it wasn't fair, but I didn't care. I knew that we were fighting for our own survival. “It's good versus evil, Dan. You don't want to be a post-person. You want to stay human. The rides are human. We each mediate them through our own experience. We're physically inside of them, and they talk to us through our senses. What Debra's people are building—it's hive-mind shit. Directly implanting thoughts! Jesus! It's not an experience, it's brainwashing! You gotta know that.” I was pleading, arguing with myself as much as with him. + +I snuck another look at him as I sped along the Disney back-roads, lined with sweaty Florida pines and immaculate purple signage. Dan was looking thoughtful, the way he had back in our old days in Toronto. Some of my tension dissipated. He was thinking about it—I'd gotten through to him. + +“Jules, this isn't one of your better ideas.” My chest tightened, and he patted my shoulder. He had the knack of putting me at my ease, even when he was telling me that I was an idiot. “Even if Debra was behind your assassination—and that's not a certainty, we both know that. Even if that's the case, we've got better means at our disposal. Improving the Mansion, competing with her head to head, that's smart. Give it a little while and we can come back at her, take over the Hall—even the Pirates, that'd really piss her off. Hell, if we can prove she was behind the assassination, we can chase her off right now. Sabotage is not going to do you any good. You've got lots of other options.” + +“But none of them are fast enough, and none of them are emotionally satisfying. This way has some goddamn /{balls}/.” + +We reached castmember parking, I swung the runabout into a slot and stalked out before it had a chance to extrude its recharger cock. I heard Dan's door slam behind me and knew that he was following behind. + +We took to the utilidors grimly. I walked past the cameras, knowing that my image was being archived, my presence logged. I'd picked the timing of my raid carefully: by arriving at high noon, I was sticking to my traditional pattern for watching hot-weather crowd dynamics. I'd made a point of visiting twice during the previous week at this time, and of dawdling in the commissary before heading topside. The delay between my arrival in the runabout and my showing up at the Mansion would not be discrepant. + +Dan dogged my heels as I swung towards the commissary, and then hugged the wall, in the camera's blindspot. Back in my early days in the Park, when I was courting Lil, she showed me the A-Vac, the old pneumatic waste-disposal system, decommissioned in the 20s. The kids who grew up in the Park had been notorious explorers of the tubes, which still whiffed faintly of the garbage bags they'd once whisked at 60 mph to the dump on the property's outskirts, but for a brave, limber kid, the tubes were a subterranean wonderland to explore when the hypermediated experiences of the Park lost their luster. + +I snarled a grin and popped open the service entrance. “If they hadn't killed me and forced me to switch to a new body, I probably wouldn't be flexible enough to fit in,” I hissed at Dan. “Ironic, huh?” + +I clambered inside without waiting for a reply, and started inching my way under the Hall of Presidents. + +My plan had covered every conceivable detail, except one, which didn't occur to me until I was forty minutes into the pneumatic tube, arms held before me and legs angled back like a swimmer's. + +How was I going to reach into my pockets? + +Specifically, how was I going to retrieve my HERF gun from my back pants-pocket, when I couldn't even bend my elbows? The HERF gun was the crux of the plan: a High Energy Radio Frequency generator with a directional, focused beam that would punch up through the floor of the Hall of Presidents and fuse every goddamn scrap of unshielded electronics on the premises. I'd gotten the germ of the idea during Tim's first demo, when I'd seen all of his prototypes spread out backstage, cases off, ready to be tinkered with. Unshielded. + +“Dan,” I said, my voice oddly muffled by the tube's walls. + +“Yeah?” he said. He'd been silent during the journey, the sound of his painful, elbow-dragging progress through the lightless tube my only indicator of his presence. + +“Can you reach my back pocket?” + +“Oh, shit,” he said. + +“Goddamn it,” I said, “keep the fucking editorial to yourself. Can you reach it or not?” + +I heard him grunt as he pulled himself up in the tube, then felt his hand groping up my calf. Soon, his chest was crushing my calves into the tube's floor and his hand was pawing around my ass. + +“I can reach it,” he said. I could tell from his tone that he wasn't too happy about my snapping at him, but I was too wrapped up to consider an apology, despite what must be happening to my Whuffie as Dan did his slow burn. + +He fumbled the gun—a narrow cylinder as long as my palm—out of my pocket. “Now what?” he said. + +“Can you pass it up?” I asked. + +Dan crawled higher, overtop of me, but stuck fast when his ribcage met my glutes. “I can't get any further,” he said. + +“Fine,” I said. “You'll have to fire it, then.” I held my breath. Would he do it? It was one thing to be my accomplice, another to be the author of the destruction. + +“Aw, Jules,” he said. + +“A simple yes or no, Dan. That's all I want to hear from you.” I was boiling with anger—at myself, at Dan, at Debra, at the whole goddamn thing. + +“Fine,” he said. + +“Good. Dial it up to max dispersion and point it straight up.” + +I heard him release the catch, felt a staticky crackle in the air, and then it was done. The gun was a one-shot, something I'd confiscated from a mischievous guest a decade before, when they'd had a brief vogue. + +“Hang on to it,” I said. I had no intention of leaving such a damning bit of evidence behind. I resumed my bellycrawl forward to the next service hatch, near the parking lot, where I'd stashed an identical change of clothes for both of us. + +We made it back just as the demo was getting underway. Debra's ad-hocs were ranged around the mezzanine inside the Hall of Presidents, a collection of influential castmembers from other ad-hocs filling the pre-show area to capacity. + +Dan and I filed in just as Tim was stringing the velvet rope up behind the crowd. He gave me a genuine smile and shook my hand, and I smiled back, full of good feelings now that I knew that he was going down in flames. I found Lil and slipped my hand into hers as we filed into the auditorium, which had the new-car smell of rug shampoo and fresh electronics. + +We took our seats and I bounced my leg nervously, compulsively, while Debra, dressed in Lincoln's coat and stovepipe, delivered a short speech. There was some kind of broadcast rig mounted over the stage now, something to allow them to beam us all their app in one humongous burst. + +Debra finished up and stepped off the stage to a polite round of applause, and they started the demo. + +Nothing happened. I tried to keep the shit-eating grin off my face as nothing happened. No tone in my cochlea indicating a new file in my public directory, no rush of sensation, nothing. I turned to Lil to make some snotty remark, but her eyes were closed, her mouth lolling open, her breath coming in short huffs. Down the row, every castmember was in the same attitude of deep, mind-blown concentration. I pulled up a diagnostic HUD. + +Nothing. No diagnostics. No HUD. I cold-rebooted. + +Nothing. + +I was offline. + +Offline, I filed out of the Hall of Presidents. Offline, I took Lil's hand and walked to the Liberty Belle load-zone, our spot for private conversations. Offline, I bummed a cigarette from her. + +Lil was upset—even through my bemused, offline haze, I could tell that. Tears pricked her eyes. + +“Why didn't you tell me?” she said, after a hard moment's staring into the moonlight reflecting off the river. + +“Tell you?” I said, dumbly. + +“They're really good. They're better than good. They're better than us. Oh, God.” + +Offline, I couldn't find stats or signals to help me discuss the matter. Offline, I tried it without help. “I don't think so. I don't think they've got soul, I don't think they've got history, I don't think they've got any kind of connection to the past. The world grew up in the Disneys—they visit this place for continuity as much as for entertainment. We provide that.” I'm offline, and they're not—what the hell happened? + +“It'll be okay, Lil. There's nothing in that place that's better than us. Different and new, but not better. You know that—you've spent more time in the Mansion than anyone, you know how much refinement, how much work there is in there. How can something they whipped up in a couple weeks possibly be better that this thing we've been maintaining for all these years?” + +She ground the back of her sleeve against her eyes and smiled. “Sorry,” she said. Her nose was red, her eyes puffy, her freckles livid over the flush of her cheeks. “Sorry—it's just shocking. Maybe you're right. And even if you're not—hey, that's the whole point of a meritocracy, right? The best stuff survives, everything else gets supplanted. + +“Oh, shit, I hate how I look when I cry,” she said. “Let's go congratulate them.” + +As I took her hand, I was obscurely pleased with myself for having improved her mood without artificial assistance. + +Dan was nowhere to be seen as Lil and I mounted the stage at the Hall, where Debra's ad-hocs and a knot of well-wishers were celebrating by passing a rock around. Debra had lost the tailcoat and hat, and was in an extreme state of relaxation, arms around the shoulders of two of her cronies, pipe between her teeth. + +She grinned around the pipe as Lil and I stumbled through some insincere compliments, nodded, and toked heavily while Tim applied a torch to the bowl. + +“Thanks,” she said, laconically. “It was a team effort.” She hugged her cronies to her, almost knocking their heads together. + +Lil said, “What's your timeline, then?” + +Debra started unreeling a long spiel about critical paths, milestones, requirements meetings, and I tuned her out. Ad-hocs were crazy for that process stuff. I stared at my feet, at the floorboards, and realized that they weren't floorboards at all, but faux-finish painted over a copper mesh—a Faraday cage. That's why the HERF gun hadn't done anything; that's why they'd been so casual about working with the shielding off their computers. With my eye, I followed the copper shielding around the entire stage and up the walls, where it disappeared into the ceiling. Once again, I was struck by the evolvedness of Debra's ad-hocs, how their trial by fire in China had armored them against the kind of bush-league jiggery-pokery that the fuzzy bunnies in Florida—myself included—came up with. + +For instance, I didn't think there was a single castmember in the Park outside of Deb's clique with the stones to stage an assassination. Once I'd made that leap, I realized that it was only a matter of time until they staged another one—and another, and another. Whatever they could get away with. + +Debra's spiel finally wound down and Lil and I headed away. I stopped in front of the backup terminal in the gateway between Liberty Square and Fantasyland. “When was the last time you backed up?” I asked her. If they could go after me, they might go after any of us. + +“Yesterday,” she said. She exuded bone-weariness at me, looking more like an overmediated guest than a tireless castmember. + +“Let's run another backup, huh? We should really back up at night and at lunchtime—with things the way they are, we can't afford to lose an afternoon's work, much less a week's.” + +Lil rolled her eyes. I knew better than to argue with her when she was tired, but this was too crucial to set aside for petulance. “You can back up that often if you want to, Julius, but don't tell me how to live my life, okay?” + +“Come on, Lil—it only takes a minute, and it'd make me feel a lot better. Please?” I hated the whine in my voice. + +“No, Julius. No. Let's go home and get some sleep. I want to do some work on new merch for the Mansion—some collectible stuff, maybe.” + +“For Christ's sake, is it really so much to ask? Fine. Wait while I back up, then, all right?” + +Lil groaned and glared at me. + +I approached the terminal and cued a backup. Nothing happened. Oh, yeah, right, I was offline. A cool sweat broke out all over my new body. + +Lil grabbed the couch as soon as we got in, mumbling something about wanting to work on some revised merch ideas she'd had. I glared at her as she subvocalized and air-typed in the corner, shut away from me. I hadn't told her that I was offline yet—it just seemed like insignificant personal bitching relative to the crises she was coping with. + +Besides, I'd been knocked offline before, though not in fifty years, and often as not the system righted itself after a good night's sleep. I could visit the doctor in the morning if things were still screwy. + +So I crawled into bed, and when my bladder woke me in the night, I had to go into the kitchen to consult our old starburst clock to get the time. It was 3 a.m., and when the hell had we expunged the house of all timepieces, anyway? + +Lil was sacked out on the couch, and complained feebly when I tried to rouse her, so I covered her with a blanket and went back to bed, alone. + +I woke disoriented and crabby, without my customary morning jolt of endorphin. Vivid dreams of death and destruction slipped away as I sat up. I preferred to let my subconscious do its own thing, so I'd long ago programmed my systems to keep me asleep during REM cycles except in emergencies. The dream left a foul taste in my mind as I staggered into the kitchen, where Lil was fixing coffee. + +“Why didn't you wake me up last night? I'm one big ache from sleeping on the couch,” Lil said as I stumbled in. + +She had the perky, jaunty quality of someone who could instruct her nervous system to manufacture endorphin and adrenaline at will. I felt like punching the wall. + +“You wouldn't get up,” I said, and slopped coffee in the general direction of a mug, then scalded my tongue with it. + +“And why are you up so late? I was hoping you would cover a shift for me—the merch ideas are really coming together and I wanted to hit the Imagineering shop and try some prototyping.” + +“Can't.” I foraged a slice of bread with cheese and noticed a crumby plate in the sink. Dan had already eaten and gone, apparently. + +“Really?” she said, and my blood started to boil in earnest. I slammed Dan's plate into the dishwasher and shoved bread into my maw. + +“Yes. Really. It's your shift—fucking work it or call in sick.” + +Lil reeled. Normally, I was the soul of sweetness in the morning, when I was hormonally enhanced, anyway. “What's wrong, honey?” she said, going into helpful castmember mode. Now I wanted to hit something besides the wall. + +“Just leave me alone, all right? Go fiddle with fucking merch. I've got real work to do—in case you haven't noticed, Debra's about to eat you and your little band of plucky adventurers and pick her teeth with the bones. For God's sake, Lil, don't you ever get fucking angry about anything? Don't you have any goddamned passion?” + +Lil whitened and I felt a sinking feeling in my gut. It was the worst thing I could possibly have said. + +Lil and I met three years before, at a barbecue that some friends of her parents threw, a kind of castmember mixer. She'd been just 19—apparent and real—and had a bubbly, flirty vibe that made me dismiss her, at first, as just another airhead castmember. + +Her parents—Tom and Rita—on the other hand, were fascinating people, members of the original ad-hoc that had seized power in Walt Disney World, wresting control from a gang of wealthy former shareholders who'd been operating it as their private preserve. Rita was apparent 20 or so, but she radiated a maturity and a fiery devotion to the Park that threw her daughter's superficiality into sharp relief. + +They throbbed with Whuffie, Whuffie beyond measure, beyond use. In a world where even a zeroed-out Whuffie loser could eat, sleep, travel and access the net without hassle, their wealth was more than sufficient to repeatedly access the piffling few scarce things left on earth over and over. + +The conversation turned to the first day, when she and her pals had used a cutting torch on the turnstiles and poured in, wearing homemade costumes and name tags. They infiltrated the shops, the control centers, the rides, first by the hundred, then, as the hot July day ticked by, by the thousand. The shareholders' lackeys—who worked the Park for the chance to be a part of the magic, even if they had no control over the management decisions—put up a token resistance. Before the day was out, though, the majority had thrown in their lots with the raiders, handing over security codes and pitching in. + +“But we knew the shareholders wouldn't give in as easy as that,” Lil's mother said, sipping her lemonade. “We kept the Park running 24/7 for the next two weeks, never giving the shareholders a chance to fight back without doing it in front of the guests. We'd prearranged with a couple of airline ad-hocs to add extra routes to Orlando and the guests came pouring in.” She smiled, remembering the moment, and her features in repose were Lil's almost identically. It was only when she was talking that her face changed, muscles tugging it into an expression decades older than the face that bore it. + +“I spent most of the time running the merch stand at Madame Leota's outside the Mansion, gladhanding the guests while hissing nasties back and forth with the shareholders who kept trying to shove me out. I slept in a sleeping bag on the floor of the utilidor, with a couple dozen others, in three hour shifts. That was when I met this asshole”—she chucked her husband on the shoulder—“he'd gotten the wrong sleeping bag by mistake and wouldn't budge when I came down to crash. I just crawled in next to him and the rest, as they say, is history.” + +Lil rolled her eyes and made gagging noises. “Jesus, Rita, no one needs to hear about that part of it.” + +Tom patted her arm. “Lil, you're an adult—if you can't stomach hearing about your parents' courtship, you can either sit somewhere else or grin and bear it. But you don't get to dictate the topic of conversation.” + +Lil gave us adults a very youthful glare and flounced off. Rita shook her head at Lil's departing backside. “There's not much fire in that generation,” she said. “Not a lot of passion. It's our fault—we thought that Disney World would be the best place to raise a child in the Bitchun Society. Maybe it was, but…” She trailed off and rubbed her palms on her thighs, a gesture I'd come to know in Lil, by and by. “I guess there aren't enough challenges for them these days. They're too cooperative.” She laughed and her husband took her hand. + +“We sound like our parents,” Tom said. “'When we were growing up, we didn't have any of this newfangled life-extension stuff—we took our chances with the cave bears and the dinosaurs!'” Tom wore himself older, apparent 50, with graying sidewalls and crinkled smile-lines, the better to present a non-threatening air of authority to the guests. It was a truism among the first-gen ad-hocs that women castmembers should wear themselves young, men old. “We're just a couple of Bitchun fundamentalists, I guess.” + +Lil called over from a nearby conversation: “Are they telling you what a pack of milksops we are, Julius? When you get tired of that, why don't you come over here and have a smoke?” I noticed that she and her cohort were passing a crack pipe. + +“What's the use?” Lil's mother sighed. + +“Oh, I don't know that it's as bad as all that,” I said, virtually my first words of the afternoon. I was painfully conscious that I was only there by courtesy, just one of the legion of hopefuls who flocked to Orlando every year, aspiring to a place among the ruling cliques. “They're passionate about maintaining the Park, that's for sure. I made the mistake of lifting a queue-gate at the Jungleboat Cruise last week and I got a very earnest lecture about the smooth functioning of the Park from a castmember who couldn't have been more than 18. I think that they don't have the passion for creating Bitchunry that we have—they don't need it—but they've got plenty of drive to maintain it.” + +Lil's mother gave me a long, considering look that I didn't know what to make of. I couldn't tell if I had offended her or what. + +“I mean, you can't be a revolutionary after the revolution, can you? Didn't we all struggle so that kids like Lil wouldn't have to?” + +“Funny you should say that,” Tom said. He had the same considering look on his face. “Just yesterday we were talking about the very same thing. We were talking—” he drew a breath and looked askance at his wife, who nodded—“about deadheading. For a while, anyway. See if things changed much in fifty or a hundred years.” + +I felt a kind of shameful disappointment. Why was I wasting my time schmoozing with these two, when they wouldn't be around when the time came to vote me in? I banished the thought as quickly as it came—I was talking to them because they were nice people. Not every conversation had to be strategically important. + +“Really? Deadheading.” I remember that I thought of Dan then, about his views on the cowardice of deadheading, on the bravery of ending it when you found yourself obsolete. He'd comforted me once, when my last living relative, my uncle, opted to go to sleep for three thousand years. My uncle had been born pre-Bitchun, and had never quite gotten the hang of it. Still, he was my link to my family, to my first adulthood and my only childhood. Dan had taken me to Gananoque and we'd spent the day bounding around the countryside on seven-league boots, sailing high over the lakes of the Thousand Islands and the crazy fiery carpet of autumn leaves. We topped off the day at a dairy commune he knew where they still made cheese from cow's milk and there'd been a thousand smells and bottles of strong cider and a girl whose name I'd long since forgotten but whose exuberant laugh I'd remember forever. And it wasn't so important, then, my uncle going to sleep for three milliennia, because whatever happened, there were the leaves and the lakes and the crisp sunset the color of blood and the girl's laugh. + +“Have you talked to Lil about it?” + +Rita shook her head. “It's just a thought, really. We don't want to worry her. She's not good with hard decisions—it's her generation.” + +They changed the subject not long thereafter, and I sensed discomfort, knew that they had told me too much, more than they'd intended. I drifted off and found Lil and her young pals, and we toked a little and cuddled a little. + +Within a month, I was working at the Haunted Mansion, Tom and Rita were invested in Canopic jars in Kissimee with instructions not to be woken until their newsbots grabbed sufficient interesting material to make it worth their while, and Lil and I were a hot item. + +Lil didn't deal well with her parents' decision to deadhead. For her, it was a slap in the face, a reproach to her and her generation of twittering Polyannic castmembers. + +For God's sake, Lil, don't you ever get fucking angry about anything? Don't you have any goddamned passion? + +The words were out of my mouth before I knew I was saying them, and Lil, 15 percent of my age, young enough to be my great-granddaughter; Lil, my lover and best friend and sponsor to the Liberty Square ad-hocracy; Lil turned white as a sheet, turned on her heel and walked out of the kitchen. She got in her runabout and went to the Park to take her shift. + +I went back to bed and stared at the ceiling fan as it made its lazy turns, and felt like shit. + +1~ CHAPTER 5 + +When I finally returned to the Park, 36 hours had passed and Lil had not come back to the house. If she'd tried to call, she would've gotten my voicemail—I had no way of answering my phone. As it turned out, she hadn't been trying to reach me at all. + +I'd spent the time alternately moping, drinking, and plotting terrible, irrational vengeance on Debra for killing me, destroying my relationship, taking away my beloved (in hindsight, anyway) Hall of Presidents and threatening the Mansion. Even in my addled state, I knew that this was pretty unproductive, and I kept promising that I would cut it out, take a shower and some sober-ups, and get to work at the Mansion. + +I was working up the energy to do just that when Dan came in. + +“Jesus,” he said, shocked. I guess I was a bit of a mess, sprawled on the sofa in my underwear, all gamy and baggy and bloodshot. + +“Hey, Dan. How's it goin'?” + +He gave me one of his patented wry looks and I felt the same weird reversal of roles that we'd undergone at the U of T, when he had become the native, and I had become the interloper. He was the together one with the wry looks and I was the pathetic seeker who'd burned all his reputation capital. Out of habit, I checked my Whuffie, and a moment later I stopped being startled by its low score and was instead shocked by the fact that I could check it at all. I was back online! + +“Now, what do you know about that?” I said, staring at my dismal Whuffie. + +“What?” he said. + +I called his cochlea. “My systems are back online,” I subvocalized. + +He started. “You were offline?” + +I jumped up from the couch and did a little happy underwear dance. “I /{was}/, but I'm not /{now}/.” I felt better than I had in days, ready to beat the world—or at least Debra. + +“Let me take a shower, then let's get to the Imagineering labs. I've got a pretty kickass idea.” + +The idea, as I explained it in the runabout, was a preemptive rehab of the Mansion. Sabotaging the Hall had been a nasty, stupid idea, and I'd gotten what I deserved for it. The whole point of the Bitchun Society was to be more reputable than the next ad-hoc, to succeed on merit, not trickery, despite assassinations and the like. + +So a rehab it would be. + +“Back in the early days of the Disneyland Mansion, in California,” I explained, “Walt had a guy in a suit of armor just past the first Doom Buggy curve, he'd leap out and scare the hell out of the guests as they went by. It didn't last long, of course. The poor bastard kept getting punched out by startled guests, and besides, the armor wasn't too comfortable for long shifts.” + +Dan chuckled appreciatively. The Bitchun Society had all but done away with any sort of dull, repetitious labor, and what remained—tending bar, mopping toilets—commanded Whuffie aplenty and a life of leisure in your off-hours. + +“But that guy in the suit of armor, he could /{improvise}/. You'd get a slightly different show every time. It's like the castmembers who spiel on the Jungleboat Cruise. They've each got their own patter, their own jokes, and even though the animatronics aren't so hot, it makes the show worth seeing.” + +“You're going to fill the Mansion with castmembers in armor?” Dan asked, shaking his head. + +I waved away his objections, causing the runabout to swerve, terrifying a pack of guests who were taking a ride on rented bikes around the property. “No,” I said, flapping a hand apologetically at the white-faced guests. “Not at all. But what if all of the animatronics had human operators—telecontrollers, working with waldoes? We'll let them interact with the guests, talk with them, scare them… We'll get rid of the existing animatronics, replace 'em with full-mobility robots, then cast the parts over the Net. Think of the Whuffie! You could put, say, a thousand operators online at once, ten shifts per day, each of them caught up in our Mansion… We'll give out awards for outstanding performances, the shifts'll be based on popular vote. In effect, we'll be adding another ten thousand guests to the Mansion's throughput every day, only these guests will be honorary castmembers.” + +“That's pretty good,” Dan said. “Very Bitchun. Debra may have AI and flash-baking, but you'll have human interaction, courtesy of the biggest Mansion-fans in the world—” + +“And those are the very fans Debra'll have to win over to make a play for the Mansion. Very elegant, huh?” + +The first order of business was to call Lil, patch things up, and pitch the idea to her. The only problem was, my cochlea was offline again. My mood started to sour, and I had Dan call her instead. + +We met her up at Imagineering, a massive complex of prefab aluminum buildings painted Go-Away Green that had thronged with mad inventors since the Bitchun Society had come to Walt Disney World. The ad-hocs who had built an Imagineering department in Florida and now ran the thing were the least political in the Park, classic labcoat-and-clipboard types who would work for anyone so long as the ideas were cool. Not caring about Whuffie meant that they accumulated it in plenty on both the left and right hands. + +Lil was working with Suneep, AKA the Merch Miracle. He could design, prototype and produce a souvenir faster than anyone—shirts, sculptures, pens, toys, housewares, he was the king. They were collaborating on their HUDs, facing each other across a lab-bench in the middle of a lab as big as a basketball court, cluttered with logomarked tchotchkes and gabbling away while their eyes danced over invisible screens. + +Dan reflexively joined the collaborative space as he entered the lab, leaving me the only one out on the joke. Dan was clearly delighted by what he saw. + +I nudged him with an elbow. “Make a hardcopy,” I hissed. + +Instead of pitying me, he just airtyped a few commands and pages started to roll out of a printer in the lab's corner. Anyone else would have made a big deal out of it, but he just brought me into the discussion. + +If I needed proof that Lil and I were meant for each other, the designs she and Suneep had come up with were more than enough. She'd been thinking just the way I had—souvenirs that stressed the human scale of the Mansion. There were miniature animatronics of the Hitchhiking Ghosts in a black-light box, their skeletal robotics visible through their layers of plastic clothing; action figures that communicated by IR, so that placing one in proximity with another would unlock its Mansion-inspired behaviors—the raven cawed, Mme. Leota's head incanted, the singing busts sang. She'd worked up some formal attire based on the castmember costume, cut in this year's stylish lines. + +It was good merch, is what I'm trying to say. In my mind's eye, I was seeing the relaunch of the Mansion in six months, filled with robotic avatars of Mansion-nuts the world 'round, Mme. Leota's gift cart piled high with brilliant swag, strolling human players ad-libbing with the guests in the queue area… + +Lil looked up from her mediated state and glared at me as I pored over the hardcopy, nodding enthusiastically. + +“Passionate enough for you?” she snapped. + +I felt a flush creeping into face, my ears. It was somewhere between anger and shame, and I reminded myself that I was more than a century older than her, and it was my responsibility to be mature. Also, I'd started the fight. + +“This is fucking fantastic, Lil,” I said. Her look didn't soften. “Really choice stuff. I had a great idea—” I ran it down for her, the avatars, the robots, the rehab. She stopped glaring, started taking notes, smiling, showing me her dimples, her slanted eyes crinkling at the corners. + +“This isn't easy,” she said, finally. Suneep, who'd been politely pretending not to listen in, nodded involuntarily. Dan, too. + +“I know that,” I said. The flush burned hotter. “But that's the point—what Debra does isn't easy either. It's risky, dangerous. It made her and her ad-hoc better—it made them sharper.” /{Sharper than us, that's for sure}/. “They can make decisions like this fast, and execute them just as quickly. We need to be able to do that, too.” + +Was I really advocating being more like Debra? The words'd just popped out, but I saw that I'd been right—we'd have to beat Debra at her own game, out-evolve her ad-hocs. + +“I understand what you're saying,” Lil said. I could tell she was upset—she'd reverted to castmemberspeak. “It's a very good idea. I think that we stand a good chance of making it happen if we approach the group and put it to them, after doing the research, building the plans, laying out the critical path, and privately soliciting feedback from some of them.” + +I felt like I was swimming in molasses. At the rate that the Liberty Square ad-hoc moved, we'd be holding formal requirements reviews while Debra's people tore down the Mansion around us. So I tried a different tactic. + +“Suneep, you've been involved in some rehabs, right?” + +Suneep nodded slowly, with a cautious expression, a nonpolitical animal being drawn into a political discussion. + +“Okay, so tell me, if we came to you with this plan and asked you to pull together a production schedule—one that didn't have any review, just take the idea and run with it—and then pull it off, how long would it take you to execute it?” + +Lil smiled primly. She'd dealt with Imagineering before. + +“About five years,” he said, almost instantly. + +“Five years?” I squawked. “Why five years? Debra's people overhauled the Hall in a month!” + +“Oh, wait,” he said. “No review at all?” + +“No review. Just come up with the best way you can to do this, and do it. And we can provide you with unlimited, skilled labor, three shifts around the clock.” + +He rolled his eyes back and ticked off days on his fingers while muttering under his breath. He was a tall, thin man with a shock of curly dark hair that he smoothed unconsciously with surprisingly stubby fingers while he thought. + +“About eight weeks,” he said. “Barring accidents, assuming off-the-shelf parts, unlimited labor, capable management, material availability…” He trailed off again, and his short fingers waggled as he pulled up a HUD and started making a list. + +“Wait,” Lil said, alarmed. “How do you get from five years to eight weeks?” + +Now it was my turn to smirk. I'd seen how Imagineering worked when they were on their own, building prototypes and conceptual mockups—I knew that the real bottleneck was the constant review and revisions, the ever-fluctuating groupmind consensus of the ad-hoc that commissioned their work. + +Suneep looked sheepish. “Well, if all I have to do is satisfy myself that my plans are good and my buildings won't fall down, I can make it happen very fast. Of course, my plans aren't perfect. Sometimes, I'll be halfway through a project when someone suggests a new flourish or approach that makes the whole thing immeasurably better. Then it's back to the drawing board… So I stay at the drawing board for a long time at the start, get feedback from other Imagineers, from the ad-hocs, from focus groups and the Net. Then we do reviews at every stage of construction, check to see if anyone has had a great idea we haven't thought of and incorporate it, sometimes rolling back the work. + +“It's slow, but it works.” + +Lil was flustered. “But if you can do a complete revision in eight weeks, why not just finish it, then plan another revision, do /{that}/ one in eight weeks, and so on? Why take five years before anyone can ride the thing?” + +“Because that's how it's done,” I said to Lil. “But that's not how it /{has}/ to be done. That's how we'll save the Mansion.” + +I felt the surety inside of me, the certain knowledge that I was right. Ad-hocracy was a great thing, a Bitchun thing, but the organization needed to turn on a dime—that would be even /{more}/ Bitchun. + +“Lil,” I said, looking into her eyes, trying to burn my POV into her. “We have to do this. It's our only chance. We'll recruit hundreds to come to Florida and work on the rehab. We'll give every Mansion nut on the planet a shot at joining up, then we'll recruit them again to work at it, to run the telepresence rigs. We'll get buy-in from the biggest super-recommenders in the world, and we'll build something better and faster than any ad-hoc ever has, without abandoning the original Imagineers' vision. It will be unspeakably Bitchun.” + +Lil dropped her eyes and it was her turn to flush. She paced the floor, hands swinging at her sides. I could tell that she was still angry with me, but excited and scared and yes, passionate. + +“It's not up to me, you know,” she said at length, still pacing. Dan and I exchanged wicked grins. She was in. + +“I know,” I said. But it was, almost—she was a real opinion-leader in the Liberty Square ad-hoc, someone who knew the systems back and forth, someone who made good, reasonable decisions and kept her head in a crisis. Not a hothead. Not prone to taking radical switchbacks. This plan would burn up that reputation and the Whuffie that accompanied it, in short order, but by the time that happened, she'd have plenty of Whuffie with the new, thousands-strong ad-hoc. + +“I mean, I can't guarantee anything. I'd like to study the plans that Imagineering comes through with, do some walk-throughs—” + +I started to object, to remind her that speed was of the essence, but she beat me to it. + +“But I won't. We have to move fast. I'm in.” + +She didn't come into my arms, didn't kiss me and tell me everything was forgiven, but she bought in, and that was enough. + +My systems came back online sometime that day, and I hardly noticed, I was so preoccupied with the new Mansion. Holy shit, was it ever audacious: since the first Mansion opened in California in 1969, no one had ever had the guts to seriously fuxor with it. Oh, sure, the Paris version, Phantom Manor, had a slightly different storyline, but it was just a minor bit of tweakage to satisfy the European market at the time. No one wanted to screw up the legend. + +What the hell made the Mansion so cool, anyway? I'd been to Disney World any number of times as a guest before I settled in, and truth be told, it had never been my absolute favorite. + +But when I returned to Disney World, live and in person, freshly bored stupid by the three-hour liveheaded flight from Toronto, I'd found myself crowd-driven to it. + +I'm a terrible, terrible person to visit theme-parks with. Since I was a punk kid snaking my way through crowded subway platforms, eeling into the only seat on a packed car, I'd been obsessed with Beating The Crowd. + +In the early days of the Bitchun Society, I'd known a blackjack player, a compulsive counter of cards, an idiot savant of odds. He was a pudgy, unassuming engineer, the moderately successful founder of a moderately successful high-tech startup that had done something arcane with software agents. While he was only moderately successful, he was fabulously wealthy: he'd never raised a cent of financing for his company, and had owned it outright when he finally sold it for a bathtub full of money. His secret was the green felt tables of Vegas, where he'd pilgrim off to every time his bank balance dropped, there to count the monkey-cards and calculate the odds and Beat The House. + +Long after his software company was sold, long after he'd made his nut, he was dressing up in silly disguises and hitting the tables, grinding out hand after hand of twenty-one, for the sheer satisfaction of Beating The House. For him, it was pure brain-reward, a jolt of happy-juice every time the dealer busted and every time he doubled down on a deckfull of face cards. + +Though I'd never bought so much as a lottery ticket, I immediately got his compulsion: for me, it was Beating The Crowd, finding the path of least resistance, filling the gaps, guessing the short queue, dodging the traffic, changing lanes with a whisper to spare—moving with precision and grace and, above all, /{expedience}/. + +On that fateful return, I checked into the Fort Wilderness Campground, pitched my tent, and fairly ran to the ferry docks to catch a barge over to the Main Gate. + +Crowds were light until I got right up to Main Gate and the ticketing queues. Suppressing an initial instinct to dash for the farthest one, beating my ferrymates to what rule-of-thumb said would have the shortest wait, I stepped back and did a quick visual survey of the twenty kiosks and evaluated the queued-up huddle in front of each. Pre-Bitchun, I'd have been primarily interested in their ages, but that is less and less a measure of anything other than outlook, so instead I carefully examined their queuing styles, their dress, and more than anything, their burdens. + +You can tell more about someone's ability to efficiently negotiate the complexities of a queue through what they carry than through any other means—if only more people realized it. The classic, of course, is the unladen citizen, a person naked of even a modest shoulderbag or marsupial pocket. To the layperson, such a specimen might be thought of as a sure bet for a fast transaction, but I'd done an informal study and come to the conclusion that these brave iconoclasts are often the flightiest of the lot, left smiling with bovine mystification, patting down their pockets in a fruitless search for a writing implement, a piece of ID, a keycard, a rabbit's foot, a rosary, a tuna sandwich. + +No, for my money, I'll take what I call the Road Worrier anytime. Such a person is apt to be carefully slung with four or five carriers of one description or another, from bulging cargo pockets to clever military-grade strap-on pouches with biometrically keyed closures. The thing to watch for is the ergonomic consideration given to these conveyances: do they balance, are they slung for minimum interference and maximum ease of access? Someone who's given that much consideration to their gear is likely spending their time in line determining which bits and pieces they'll need when they reach its headwaters and is holding them at ready for fastest-possible processing. + +This is a tricky call, since there are lookalike pretenders, gear-pigs who pack /{everything}/ because they lack the organizational smarts to figure out what they should pack—they're just as apt to be burdened with bags and pockets and pouches, but the telltale is the efficiency of that slinging. These pack mules will sag beneath their loads, juggling this and that while pushing overloose straps up on their shoulders. + +I spied a queue that was made up of a group of Road Worriers, a queue that was slightly longer than the others, but I joined it and ticced nervously as I watched my progress relative to the other spots I could've chosen. I was borne out, a positive omen for a wait-free World, and I was sauntering down Main Street, USA long before my ferrymates. + +Returning to Walt Disney World was a homecoming for me. My parents had brought me the first time when I was all of ten, just as the first inklings of the Bitchun society were trickling into everyone's consciousness: the death of scarcity, the death of death, the struggle to rejig an economy that had grown up focused on nothing but scarcity and death. My memories of the trip are dim but warm, the balmy Florida climate and a sea of smiling faces punctuated by magical, darkened moments riding in OmniMover cars, past diorama after diorama. + +I went again when I graduated high school and was amazed by the richness of detail, the grandiosity and grandeur of it all. I spent a week there stunned bovine, grinning and wandering from corner to corner. Someday, I knew, I'd come to live there. + +The Park became a touchstone for me, a constant in a world where everything changed. Again and again, I came back to the Park, grounding myself, communing with all the people I'd been. + +That day I bopped from land to land, ride to ride, seeking out the short lines, the eye of the hurricane that crowded the Park to capacity. I'd take high ground, standing on a bench or hopping up on a fence, and do a visual reccy of all the queues in sight, try to spot prevailing currents in the flow of the crowd, generally having a high old obsessive time. Truth be told, I probably spent as much time looking for walk-ins as I would've spent lining up like a good little sheep, but I had more fun and got more exercise. + +The Haunted Mansion was experiencing a major empty spell: the Snow Crash Spectacular parade had just swept through Liberty Square en route to Fantasyland, dragging hordes of guests along with it, dancing to the JapRap sounds of the comical Sushi-K and aping the movements of the brave Hiro Protagonist. When they blew out, Liberty Square was a ghost town, and I grabbed the opportunity to ride the Mansion five times in a row, walking on every time. + +The way I tell it to Lil, I noticed her and then I noticed the Mansion, but to tell the truth it was the other way around. + +The first couple rides through, I was just glad of the aggressive air conditioning and the delicious sensation of sweat drying on my skin. But on the third pass, I started to notice just how goddamn cool the thing was. There wasn't a single bit of tech more advanced than a film-loop projector in the whole place, but it was all so cunningly contrived that the illusion of a haunted house was perfect: the ghosts that whirled through the ballroom were /{ghosts}/, three-dimensional and ethereal and phantasmic. The ghosts that sang in comical tableaux through the graveyard were equally convincing, genuinely witty and simultaneously creepy. + +My fourth pass through, I noticed the /{detail}/, the hostile eyes worked into the wallpaper's pattern, the motif repeated in the molding, the chandeliers, the photo gallery. I began to pick out the words to “Grim Grinning Ghosts,” the song that is repeated throughout the ride, whether in sinister organ-tones repeating the main theme troppo troppo or the spritely singing of the four musical busts in the graveyard. + +It's a catchy tune, one that I hummed on my fifth pass through, this time noticing that the overaggressive AC was, actually, mysterious chills that blew through the rooms as wandering spirits made their presence felt. By the time I debarked for the fifth time, I was whistling the tune with jazzy improvisations in a mixed-up tempo. + +That's when Lil and I ran into each other. She was picking up a discarded ice-cream wrapper—I'd seen a dozen castmembers picking up trash that day, seen it so frequently that I'd started doing it myself. She grinned slyly at me as I debarked into the fried-food-and-disinfectant perfume of the Park, hands in pockets, thoroughly pleased with myself for having so completely /{experienced}/ a really fine hunk of art. + +I smiled back at her, because it was only natural that one of the Whuffie-kings who were privileged to tend this bit of heavenly entertainment should notice how thoroughly I was enjoying her work. + +“That's really, really Bitchun,” I said to her, admiring the titanic mountains of Whuffie my HUD attributed to her. + +She was in character, and not supposed to be cheerful, but castmembers of her generation can't help but be friendly. She compromised between ghastly demeanor and her natural sweet spirit, and leered a grin at me, thumped through a zombie's curtsey, and moaned “Thank you—we /{do}/ try to keep it /{spirited}/.” + +I groaned appreciatively, and started to notice just how very cute she was, this little button of a girl with her rotting maid's uniform and her feather-shedding duster. She was just so clean and scrubbed and happy about everything, she radiated it and made me want to pinch her cheeks—either set. + +The moment was on me, and so I said, “When do they let you ghouls off? I'd love to take you out for a Zombie or a Bloody Mary.” + +Which led to more horrifying banter, and to my taking her out for a couple at the Adventurer's Club, learning her age in the process and losing my nerve, telling myself that there was nothing we could possibly have to say to each other across a century-wide gap. + +While I tell Lil that I noticed her first and the Mansion second, the reverse is indeed true. But it's also true—and I never told her this—that the thing I love best about the Mansion is: + +It's where I met her. + +Dan and I spent the day riding the Mansion, drafting scripts for the telepresence players who we hoped to bring on-board. We were in a totally creative zone, the dialog running as fast as he could transcribe it. Jamming on ideas with Dan was just about as terrific as a pass-time could be. + +I was all for leaking the plan to the Net right away, getting hearts-and-minds action with our core audience, but Lil turned it down. + +She was going to spend the next couple days quietly politicking among the rest of the ad-hoc, getting some support for the idea, and she didn't want the appearance of impropriety that would come from having outsiders being brought in before the ad-hoc. + +Talking to the ad-hocs, bringing them around—it was a skill I'd never really mastered. Dan was good at it, Lil was good at it, but me, I think that I was too self-centered to ever develop good skills as a peacemaker. In my younger days, I assumed that it was because I was smarter than everyone else, with no patience for explaining things in short words for mouth-breathers who just didn't get it. + +The truth of the matter is, I'm a bright enough guy, but I'm hardly a genius. Especially when it comes to people. Probably comes from Beating The Crowd, never seeing individuals, just the mass—the enemy of expedience. + +I never would have made it into the Liberty Square ad-hoc on my own. Lil made it happen for me, long before we started sleeping together. I'd assumed that her folks would be my best allies in the process of joining up, but they were too jaded, too ready to take the long sleep to pay much attention to a newcomer like me. + +Lil took me under her wing, inviting me to after-work parties, talking me up to her cronies, quietly passing around copies of my thesis-work. And she did the same in reverse, sincerely extolling the virtues of the others I met, so that I knew what there was to respect about them and couldn't help but treat them as individuals. + +In the years since, I'd lost that respect. Mostly, I palled around with Lil, and once he arrived, Dan, and with net-friends around the world. The ad-hocs that I worked with all day treated me with basic courtesy but not much friendliness. + +I guess I treated them the same. When I pictured them in my mind, they were a faceless, passive-aggressive mass, too caught up in the starchy world of consensus-building to ever do much of anything. + +Dan and I threw ourselves into it headlong, trolling the Net for address lists of Mansion-otakus from the four corners of the globe, spreadsheeting them against their timezones, temperaments, and, of course, their Whuffie. + +“That's weird,” I said, looking up from the old-fashioned terminal I was using—my systems were back offline. They'd been sputtering up and down for a couple days now, and I kept meaning to go to the doctor, but I'd never gotten 'round to it. Periodically, I'd get a jolt of urgency when I remembered that this meant my backup was stale-dating, but the Mansion always took precedence. + +“Huh?” he said. + +I tapped the display. “See these?” It was a fan-site, displaying a collection of animated 3-D meshes of various elements of the Mansion, part of a giant collaborative project that had been ongoing for decades, to build an accurate 3-D walkthrough of every inch of the Park. I'd used those meshes to build my own testing fly-throughs. + +“Those are terrific,” Dan said. “That guy must be a total /{fiend}/.” The meshes' author had painstakingly modeled, chained and animated every ghost in the ballroom scene, complete with the kinematics necessary for full motion. Where a “normal” fan-artist might've used a standard human kinematics library for the figures, this one had actually written his own from the ground up, so that the ghosts moved with a spectral fluidity that was utterly unhuman. + +“Who's the author?” Dan asked. “Do we have him on our list yet?” + +I scrolled down to display the credits. “I'll be damned,” Dan breathed. + +The author was Tim, Debra's elfin crony. He'd submitted the designs a week before my assassination. + +“What do you think it means?” I asked Dan, though I had a couple ideas on the subject myself. + +“Tim's a Mansion nut,” Dan said. “I knew that.” + +“You knew?” + +He looked a little defensive. “Sure. I told you, back when you had me hanging out with Debra's gang.” + +Had I asked him to hang out with Debra? As I remembered it, it had been his suggestion. Too much to think about. + +“But what does it mean, Dan? Is he an ally? Should we try to recruit him? Or is he the one that'd convinced Debra she needs to take over the Mansion?” + +Dan shook his head. “I'm not even sure that she wants to take over the Mansion. I know Debra, all she wants to do is turn ideas into things, as fast and as copiously as possible. She picks her projects carefully. She's acquisitive, sure, but she's cautious. She had a great idea for Presidents, and so she took over. I never heard her talk about the Mansion.” + +“Of course you didn't. She's cagey. Did you hear her talk about the Hall of Presidents?” + +Dan fumbled. “Not really… I mean, not in so many words, but—” + +“But nothing,” I said. “She's after the Mansion, she's after the Magic Kingdom, she's after the Park. She's taking over, goddamn it, and I'm the only one who seems to have noticed.” + +I came clean to Lil about my systems that night, as we were fighting. Fighting had become our regular evening pastime, and Dan had taken to sleeping at one of the hotels on-site rather than endure it. + +I'd started it, of course. “We're going to get killed if we don't get off our asses and start the rehab,” I said, slamming myself down on the sofa and kicking at the scratched coffee table. I heard the hysteria and unreason in my voice and it just made me madder. I was frustrated by not being able to check in on Suneep and Dan, and, as usual, it was too late at night to call anyone and do anything about it. By the morning, I'd have forgotten again. + +From the kitchen, Lil barked back, “I'm doing what I can, Jules. If you've got a better way, I'd love to hear about it.” + +“Oh, bullshit. I'm doing what I can, planning the thing out. I'm ready to /{go}/. It was your job to get the ad-hocs ready for it, but you keep telling me they're not. When will they be?” + +“Jesus, you're a nag.” + +“I wouldn't nag if you'd only fucking make it happen. What are you doing all day, anyway? Working shifts at the Mansion? Rearranging deck chairs on the Great Titanic Adventure?” + +“I'm working my fucking /{ass}/ off. I've spoken to every goddamn one of them at least twice this week about it.” + +“Sure,” I hollered at the kitchen. “Sure you have.” + +“Don't take my word for it, then. Check my fucking phone logs.” + +She waited. + +“Well? Check them!” + +“I'll check them later,” I said, dreading where this was going. + +“Oh, no you /{don't}/,” she said, stalking into the room, fuming. “You can't call me a liar and then refuse to look at the evidence.” She planted her hands on her slim little hips and glared at me. She'd gone pale and I could count every freckle on her face, her throat, her collarbones, the swell of her cleavage in the old vee-neck shirt I'd given her on a day-trip to Nassau. + +“Well?” she asked. She looked ready to wring my neck. + +“I can't,” I admitted, not meeting her eyes. + +“Yes you can—here, I'll dump it to your public directory.” + +Her expression shifted to one of puzzlement when she failed to locate me on her network. “What's going on?” + +So I told her. Offline, outcast, malfunctioning. + +“Well, why haven't you gone to the doctor? I mean, it's been /{weeks}/. I'll call him right now.” + +“Forget it,” I said. “I'll see him tomorrow. No sense in getting him out of bed.” + +But I didn't see him the day after, or the day after that. Too much to do, and the only times I remembered to call someone, I was too far from a public terminal or it was too late or too early. My systems came online a couple times, and I was too busy with the plans for the Mansion. Lil grew accustomed to the drifts of hard copy that littered the house, to printing out her annotations to my designs and leaving them on my favorite chair—to living like the cavemen of the information age had, surrounded by dead trees and ticking clocks. + +Being offline helped me focus. Focus is hardly the word for it—I obsessed. I sat in front of the terminal I'd brought home all day, every day, crunching plans, dictating voicemail. People who wanted to reach me had to haul ass out to the house, and /{speak}/ to me. + +I grew too obsessed to fight, and Dan moved back, and then it was my turn to take hotel rooms so that the rattle of my keyboard wouldn't keep him up nights. He and Lil were working a full-time campaign to recruit the ad-hoc to our cause, and I started to feel like we were finally in harmony, about to reach our goal. + +I went home one afternoon clutching a sheaf of hardcopy and burst into the living room, gabbling a mile-a-minute about a wrinkle on my original plan that would add a third walk-through segment to the ride, increasing the number of telepresence rigs we could use without decreasing throughput. + +I was mid-babble when my systems came back online. The public chatter in the room sprang up on my HUD. + +/{And then I'm going to tear off every stitch of clothing and jump you.}/ + +/{And then what?}/ + +/{I'm going to bang you till you limp.}/ + +/{Jesus, Lil, you are one rangy cowgirl.}/ + +My eyes closed, shutting out everything except for the glowing letters. Quickly, they vanished. I opened my eyes again, looking at Lil, who was flushed and distracted. Dan looked scared. + +“What's going on, Dan?” I asked quietly. My heart hammered in my chest, but I felt calm and detached. + +“Jules,” he began, then gave up and looked at Lil. + +Lil had, by that time, figured out that I was back online, that their secret messaging had been discovered. + +“Having fun, Lil?” I asked. + +Lil shook her head and glared at me. “Just go, Julius. I'll send your stuff to the hotel.” + +“You want me to go, huh? So you can bang him till he limps?” + +“This is my house, Julius. I'm asking you to get out of it. I'll see you at work tomorrow—we're having a general ad-hoc meeting to vote on the rehab.” + +It was her house. + +“Lil, Julius—” Dan began. + +“This is between me and him,” Lil said. “Stay out of it.” + +I dropped my papers—I wanted to throw them, but I dropped them, /{flump}/, and I turned on my heel and walked out, not bothering to close the door behind me. + +Dan showed up at the hotel ten minutes after I did and rapped on my door. I was all-over numb as I opened the door. He had a bottle of tequila—/{my}/ tequila, brought over from the house that I'd shared with Lil. + +He sat down on the bed and stared at the logo-marked wallpaper. I took the bottle from him, got a couple glasses from the bathroom and poured. + +“It's my fault,” he said. + +“I'm sure it is,” I said. + +“We got to drinking a couple nights ago. She was really upset. Hadn't seen you in days, and when she /{did}/ see you, you freaked her out. Snapping at her. Arguing. Insulting her.” + +“So you made her,” I said. + +He shook his head, then nodded, took a drink. “I did. It's been a long time since I…” + +“You had sex with my girlfriend, in my house, while I was away, working.” + +“Jules, I'm sorry. I did it, and I kept on doing it. I'm not much of a friend to either of you. + +“She's pretty broken up. She wanted me to come out here and tell you it was all a mistake, that you were just being paranoid.” + +We sat in silence for a long time. I refilled his glass, then my own. + +“I couldn't do that,” he said. “I'm worried about you. You haven't been right, not for months. I don't know what it is, but you should get to a doctor.” + +“I don't need a doctor,” I snapped. The liquor had melted the numbness and left burning anger and bile, my constant companions. “I need a friend who doesn't fuck my girlfriend when my back is turned.” + +I threw my glass at the wall. It bounced off, leaving tequila-stains on the wallpaper, and rolled under the bed. Dan started, but stayed seated. If he'd stood up, I would've hit him. Dan's good at crises. + +“If it's any consolation, I expect to be dead pretty soon,” he said. He gave me a wry grin. “My Whuffie's doing good. This rehab should take it up over the top. I'll be ready to go.” + +That stopped me. I'd somehow managed to forget that Dan, my good friend Dan, was going to kill himself. + +“You're going to do it,” I said, sitting down next to him. It hurt to think about it. I really liked the bastard. He might've been my best friend. + +There was a knock at the door. I opened it without checking the peephole. It was Lil. + +She looked younger than ever. Young and small and miserable. A snide remark died in my throat. I wanted to hold her. + +She brushed past me and went to Dan, who squirmed out of her embrace. + +“No,” he said, and stood up and sat on the windowsill, staring down at the Seven Seas Lagoon. + +“Dan's just been explaining to me that he plans on being dead in a couple months,” I said. “Puts a damper on the long-term plans, doesn't it, Lil?” + +Tears streamed down her face and she seemed to fold in on herself. “I'll take what I can get,” she said. + +I choked on a knob of misery, and I realized that it was Dan, not Lil, whose loss upset me the most. + +Lil took Dan's hand and led him out of the room. + +/{I guess I'll take what I can get, too}/, I thought. + +1~ CHAPTER 6 + +Lying on my hotel bed, mesmerized by the lazy turns of the ceiling fan, I pondered the possibility that I was nuts. + +It wasn't unheard of, even in the days of the Bitchun Society, and even though there were cures, they weren't pleasant. + +I was once married to a crazy person. We were both about 70, and I was living for nothing but joy. Her name was Zoya, and I called her Zed. + +We met in orbit, where I'd gone to experience the famed low-gravity sybarites. Getting staggering drunk is not much fun at one gee, but at ten to the neg eight, it's a blast. You don't stagger, you /{bounce}/, and when you're bouncing in a sphere full of other bouncing, happy, boisterous naked people, things get deeply fun. + +I was bouncing around inside a clear sphere that was a mile in diameter, filled with smaller spheres in which one could procure bulbs of fruity, deadly concoctions. Musical instruments littered the sphere's floor, and if you knew how to play, you'd snag one, tether it to you and start playing. Others would pick up their own axes and jam along. The tunes varied from terrific to awful, but they were always energetic. + +I had been working on my third symphony on and off, and whenever I thought I had a nice bit nailed, I'd spend some time in the sphere playing it. Sometimes, the strangers who jammed in gave me new and interesting lines of inquiry, and that was good. Even when they didn't, playing an instrument was a fast track to intriguing an interesting, naked stranger. + +Which is how we met. She snagged a piano and pounded out barrelhouse runs in quirky time as I carried the main thread of the movement on a cello. At first it was irritating, but after a short while I came to a dawning comprehension of what she was doing to my music, and it was really /{good}/. I'm a sucker for musicians. + +We brought the session to a crashing stop, me bowing furiously as spheres of perspiration beaded on my body and floated gracefully into the hydrotropic recyclers, she beating on the 88 like they were the perp who killed her partner. + +I collapsed dramatically as the last note crashed through the bubble. The singles, couples and groups stopped in midflight coitus to applaud. She took a bow, untethered herself from the Steinway, and headed for the hatch. + +I coiled my legs up and did a fast burn through the sphere, desperate to reach the hatch before she did. I caught her as she was leaving. + +“Hey!” I said. “That was great! I'm Julius! How're you doing?” + +She reached out with both hands and squeezed my nose and my unit simultaneously—not hard, you understand, but playfully. “Honk!” she said, and squirmed through the hatch while I gaped at my burgeoning chub-on. + +I chased after her. “Wait,” I called as she tumbled through the spoke of the station towards the gravity. + +She had a pianist's body—re-engineered arms and hands that stretched for impossible lengths, and she used them with a spacehand's grace, vaulting herself forward at speed. I bumbled after her best as I could on my freshman spacelegs, but by the time I reached the half-gee rim of the station, she was gone. + +I didn't find her again until the next movement was done and I went to the bubble to try it out on an oboe. I was just getting warmed up when she passed through the hatch and tied off to the piano. + +This time, I clamped the oboe under my arm and bopped over to her before moistening the reed and blowing. I hovered over the piano's top, looking her in the eye as we jammed. Her mood that day was 4/4 time and I-IV-V progressions, in a feel that swung around from blues to rock to folk, teasing at the edge of my own melodies. She noodled at me, I noodled back at her, and her eyes crinkled charmingly whenever I managed a smidge of tuneful wit. + +She was almost completely flatchested, and covered in a fine, red downy fur, like a chipmunk. It was a jaunter's style, suited to the climate-controlled, soft-edged life in space. Fifty years later, I was dating Lil, another redhead, but Zed was my first. + +I played and played, entranced by the fluidity of her movements at the keyboard, her comical moues of concentration when picking out a particularly kicky little riff. When I got tired, I took it to a slow bridge or gave her a solo. I was going to make this last as long as I could. Meanwhile, I maneuvered my way between her and the hatch. + +When I blew the last note, I was wrung out as a washcloth, but I summoned the energy to zip over to the hatch and block it. She calmly untied and floated over to me. + +I looked in her eyes, silvered slanted cat-eyes, eyes that I'd been staring into all afternoon, and watched the smile that started at their corners and spread right down to her long, elegant toes. She looked back at me, then, at length, grabbed ahold of my joint again. + +“You'll do,” she said, and led me to her sleeping quarters, across the station. + +We didn't sleep. + +Zoya had been an early network engineer for the geosynch broadband constellations that went up at the cusp of the world's ascent into Bitchunry. She'd been exposed to a lot of hard rads and low gee and had generally become pretty transhuman as time went by, upgrading with a bewildering array of third-party enhancements: a vestigial tail, eyes that saw through most of the RF spectrum, her arms, her fur, dogleg reversible knee joints and a completely mechanical spine that wasn't prone to any of the absolutely inane bullshit that plagues the rest of us, like lower-back pain, intrascapular inflammation, sciatica and slipped discs. + +I thought I lived for fun, but I didn't have anything on Zed. She only talked when honking and whistling and grabbing and kissing wouldn't do, and routinely slapped upgrades into herself on the basis of any whim that crossed her mind, like when she resolved to do a spacewalk bare-skinned and spent the afternoon getting tin-plated and iron-lunged. + +I fell in love with her a hundred times a day, and wanted to strangle her twice as often. She stayed on her spacewalk for a couple of days, floating around the bubble, making crazy faces at its mirrored exterior. She had no way of knowing if I was inside, but she assumed that I was watching. Or maybe she didn't, and she was making faces for anyone's benefit. + +But then she came back through the lock, strange and wordless and her eyes full of the stars she'd seen and her metallic skin cool with the breath of empty space, and she led me a merry game of tag through the station, the mess hall where we skidded sloppy through a wobbly ovoid of rice pudding, the greenhouses where she burrowed like a gopher and shinnied like a monkey, the living quarters and bubbles as we interrupted a thousand acts of coitus. + +You'd have thought that we'd have followed it up with an act of our own, and truth be told, that was certainly my expectation when we started the game I came to think of as the steeplechase, but we never did. Halfway through, I'd lose track of carnal urges and return to a state of childlike innocence, living only for the thrill of the chase and the giggly feeling I got whenever she found some new, even-more-outrageous corner to turn. I think we became legendary on the station, that crazy pair that's always zipping in and zipping away, like having your party crashed by two naked, coed Marx Brothers. + +When I asked her to marry me, to return to Earth with me, to live with me until the universe's mainspring unwound, she laughed, honked my nose and my willie and shouted, “YOU'LL /{DO}/!” + +I took her home to Toronto and we took up residence ten stories underground in overflow residence for the University. Our Whuffie wasn't so hot earthside, and the endless institutional corridors made her feel at home while affording her opportunities for mischief. + +But bit by bit, the mischief dwindled, and she started talking more. At first, I admit I was relieved, glad that my strange, silent wife was finally acting normal, making nice with the neighbors instead of pranking them with endless honks and fanny-kicks and squirt guns. We gave up the steeplechase and she had the doglegs taken out, her fur removed, her eyes unsilvered to a hazel that was pretty and as fathomable as the silver had been inscrutable. + +We wore clothes. We entertained. I started to rehearse my symphony in low-Whuffie halls and parks with any musicians I could drum up, and she came out and didn't play, just sat to the side and smiled and smiled with a smile that never went beyond her lips. + +She went nuts. + +She shat herself. She pulled her hair. She cut herself with knives. She accused me of plotting to kill her. She set fire to the neighbors' apartments, wrapped herself in plastic sheeting, dry-humped the furniture. + +She went nuts. She did it in broad strokes, painting the walls of our bedroom with her blood, jagging all night through rant after rant. I smiled and nodded and faced it for as long as I could, then I grabbed her and hauled her, kicking like a mule, to the doctor's office on the second floor. She'd been dirtside for a year and nuts for a month, but it took me that long to face up to it. + +The doc diagnosed nonchemical dysfunction, which was by way of saying that it was her mind, not her brain, that was broken. In other words, I'd driven her nuts. + +You can get counseling for nonchemical dysfunction, basically trying to talk it out, learn to feel better about yourself. She didn't want to. + +She was miserable, suicidal, murderous. In the brief moments of lucidity that she had under sedation, she consented to being restored from a backup that was made before we came to Toronto. + +I was at her side in the hospital when she woke up. I had prepared a written synopsis of the events since her last backup for her, and she read it over the next couple days. + +“Julius,” she said, while I was making breakfast in our subterranean apartment. She sounded so serious, so fun-free, that I knew immediately that the news wouldn't be good. + +“Yes?” I said, setting out plates of bacon and eggs, steaming cups of coffee. + +“I'm going to go back to space, and revert to an older version.” She had a shoulderbag packed, and she had traveling clothes on. + +/{Oh, shit.}/ “Great,” I said, with forced cheerfulness, making a mental inventory of my responsibilities dirtside. “Give me a minute or two, I'll pack up. I miss space, too.” + +She shook her head, and anger blazed in her utterly scrutable hazel eyes. “No. I'm going back to who I was, before I met you.” + +It hurt, bad. I had loved the old, steeplechase Zed, had loved her fun and mischief. The Zed she'd become after we wed was terrible and terrifying, but I'd stuck with her out of respect for the person she'd been. + +Now she was off to restore herself from a backup made before she met me. She was going to lop 18 months out of her life, start over again, revert to a saved version. + +Hurt? It ached like a motherfucker. + +I went back to the station a month later, and saw her jamming in the sphere with a guy who had three extra sets of arms depending from his hips. He scuttled around the sphere while she played a jig on the piano, and when her silver eyes lit on me, there wasn't a shred of recognition in them. She'd never met me. + +I died some, too, putting the incident out of my head and sojourning to Disney World, there to reinvent myself with a new group of friends, a new career, a new life. I never spoke of Zed again—especially not to Lil, who hardly needed me to pollute her with remembrances of my crazy exes. + +If I was nuts, it wasn't the kind of spectacular nuts that Zed had gone. It was a slow, seething, ugly nuts that had me alienating my friends, sabotaging my enemies, driving my girlfriend into my best friend's arms. + +I decided that I would see a doctor, just as soon as we'd run the rehab past the ad-hoc's general meeting. I had to get my priorities straight. + +I pulled on last night's clothes and walked out to the Monorail station in the main lobby. The platform was jammed with happy guests, bright and cheerful and ready for a day of steady, hypermediated fun. I tried to make myself attend to them as individuals, but try as I might, they kept turning into a crowd, and I had to plant my feet firmly on the platform to keep from weaving among them to the edge, the better to snag a seat. + +The meeting was being held over the Sunshine Tree Terrace in Adventureland, just steps from where I'd been turned into a road-pizza by the still-unidentified assassin. The Adventureland ad-hocs owed the Liberty Square crew a favor since my death had gone down on their turf, so they had given us use of their prize meeting room, where the Florida sun streamed through the slats of the shutters, casting a hash of dust-filled shafts of light across the room. The faint sounds of the tiki-drums and the spieling Jungle Cruise guides leaked through the room, a low-key ambient buzz from two of the Park's oldest rides. + +There were almost a hundred ad-hocs in the Liberty Square crew, almost all second-gen castmembers with big, friendly smiles. They filled the room to capacity, and there was much hugging and handshaking before the meeting came to order. I was thankful that the room was too small for the /{de rigueur}/ ad-hoc circle-of-chairs, so that Lil was able to stand at a podium and command a smidge of respect. + +“Hi there!” she said, brightly. The weepy puffiness was still present around her eyes, if you knew how to look for it, but she was expert at putting on a brave face no matter what the ache. + +The ad-hocs roared back a collective, “Hi, Lil!” and laughed at their own corny tradition. Oh, they sure were a barrel of laughs at the Magic Kingdom. + +“Everybody knows why we're here, right?” Lil said, with a self-deprecating smile. She'd been lobbying hard for weeks, after all. “Does anyone have any questions about the plans? We'd like to start executing right away.” + +A guy with deliberately boyish, wholesome features put his arm in the air. Lil acknowledged him with a nod. “When you say ‘right away,’ do you mean—” + +I cut in. “Tonight. After this meeting. We're on an eight-week production schedule, and the sooner we start, the sooner it'll be finished.” + +The crowd murmured, unsettled. Lil shot me a withering look. I shrugged. Politics was not my game. + +Lil said, “Don, we're trying something new here, a really streamlined process. The good part is, the process is /{short}/. In a couple months, we'll know if it's working for us. If it's not, hey, we can turn it around in a couple months, too. That's why we're not spending as much time planning as we usually do. It won't take five years for the idea to prove out, so the risks are lower.” + +Another castmember, a woman, apparent 40 with a round, motherly demeanor said, “I'm all for moving fast—Lord knows, our pacing hasn't always been that hot. But I'm concerned about all these new people you propose to recruit—won't having more people slow us down when it comes to making new decisions?” + +/{No}/, I thought sourly, /{because the people I'm bringing in aren't addicted to meetings}/. + +Lil nodded. “That's a good point, Lisa. The offer we're making to the telepresence players is probationary—they don't get to vote until after we've agreed that the rehab is a success.” + +Another castmember stood. I recognized him: Dave, a heavyset, self-important jerk who loved to work the front door, even though he blew his spiel about half the time. “Lillian,” he said, smiling sadly at her, “I think you're really making a big mistake here. We love the Mansion, all of us, and so do the guests. It's a piece of history, and we're its custodians, not its masters. Changing it like this, well…” he shook his head. “It's not good stewardship. If the guests wanted to walk through a funhouse with guys jumping out of the shadows saying ‘booga-booga,’ they'd go to one of the Halloween Houses in their hometowns. The Mansion's better than that. I can't be a part of this plan.” + +I wanted to knock the smug grin off his face. I'd delivered essentially the same polemic a thousand times—in reference to Debra's work—and hearing it from this jerk in reference to /{mine}/ made me go all hot and red inside. + +“Look,” I said. “If we don't do this, if we don't change things, they'll get changed /{for}/ us. By someone else. The question, /{Dave}/, is whether a responsible custodian lets his custodianship be taken away from him, or whether he does everything he can to make sure that he's still around to ensure that his charge is properly cared for. Good custodianship isn't sticking your head in the sand.” + +I could tell I wasn't doing any good. The mood of the crowd was getting darker, the faces more set. I resolved not to speak again until the meeting was done, no matter what the provocation. + +Lil smoothed my remarks over, and fielded a dozen more, and it looked like the objections would continue all afternoon and all night and all the next day, and I felt woozy and overwrought and miserable all at the same time, staring at Lil and her harried smile and her nervous smoothing of her hair over her ears. + +Finally, she called the question. By tradition, the votes were collected in secret and publicly tabulated over the data-channels. The group's eyes unfocussed as they called up HUDs and watched the totals as they rolled in. I was offline and unable to vote or watch. + +At length, Lil heaved a relieved sigh and smiled, dropping her hands behind her back. + +“All right then,” she said, over the crowd's buzz. “Let's get to work.” + +I stood up, saw Dan and Lil staring into each other's eyes, a meaningful glance between new lovers, and I saw red. Literally. My vision washed over pink, and a strobe pounded at the edges of my vision. I took two lumbering steps towards them and opened my mouth to say something horrible, and what came out was “Waaagh.” My right side went numb and my leg slipped out from under me and I crashed to the floor. + +The slatted light from the shutters cast its way across my chest as I tried to struggle up with my left arm, and then it all went black. + +I wasn't nuts after all. + +The doctor's office in the Main Street infirmary was clean and white and decorated with posters of Jiminy Cricket in doctors' whites with an outsized stethoscope. I came to on a hard pallet under a sign that reminded me to get a check-up twice a year, by gum! and I tried to bring my hands up to shield my eyes from the over bright light and the over-cheerful signage, and discovered that I couldn't move my arms. Further investigation revealed that this was because I was strapped down, in full-on four-point restraint. + +“Waaagh,” I said again. + +Dan's worried face swam into my field of vision, along with a serious-looking doctor, apparent 70, with a Norman Rockwell face full of crow'sfeet and smile-lines. + +“Welcome back, Julius. I'm Doctor Pete,” the doctor said, in a kindly voice that matched the face. Despite my recent disillusion with castmember bullshit, I found his schtick comforting. + +I slumped back against the pallet while the doc shone lights in my eyes and consulted various diagnostic apparati. I bore it in stoic silence, too confounded by the horrible Waaagh sounds to attempt more speech. The doc would tell me what was going on when he was ready. + +“Does he need to be tied up still?” Dan asked, and I shook my head urgently. Being tied up wasn't my idea of a good time. + +The doc smiled kindly. “I think it's for the best, for now. Don't worry, Julius, we'll have you up and about soon enough.” + +Dan protested, but stopped when the doc threatened to send him out of the room. He took my hand instead. + +My nose itched. I tried to ignore it, but it got worse and worse, until it was all I could think of, the flaming lance of itch that strobed at the tip of my nostril. Furiously, I wrinkled my face, rattled at my restraints. The doc absentmindedly noticed my gyrations and delicately scratched my nose with a gloved finger. The relief was fantastic. I just hoped my nuts didn't start itching anytime soon. + +Finally, the doctor pulled up a chair and did something that caused the head of the bed to raise up so that I could look him in the eye. + +“Well, now,” he said, stroking his chin. “Julius, you've got a problem. Your friend here tells me your systems have been offline for more than a month. It sure would've been better if you'd come in to see me when it started up. + +“But you didn't, and things got worse.” He nodded up at Jiminy Cricket's recriminations: Go ahead, see your doc! “It's good advice, son, but what's done is done. You were restored from a backup about eight weeks ago, I see. Without more tests, I can't be sure, but my theory is that the brain-machine interface they installed at that time had a material defect. It's been deteriorating ever since, misfiring and rebooting. The shut-downs are a protective mechanism, meant to keep it from introducing the kind of seizure you experienced this afternoon. When the interface senses malfunction, it shuts itself down and boots a diagnostic mode, attempts to fix itself and come back online. + +“Well, that's fine for minor problems, but in cases like this, it's bad news. The interface has been deteriorating steadily, and it's only a matter of time before it does some serious damage.” + +“Waaagh?” I asked. I meant to say, /{All right, but what's wrong with my mouth?}/ + +The doc put a finger to my lips. “Don't try. The interface has locked up, and it's taken some of your voluntary nervous processes with it. In time, it'll probably shut down, but for now, there's no point. That's why we've got you strapped down—you were thrashing pretty hard when they brought you in, and we didn't want you to hurt yourself.” + +/{Probably shut down}/? Jesus. I could end up stuck like this forever. I started shaking. + +The doc soothed me, stroking my hand, and in the process pressed a transdermal on my wrist. The panic receded as the transdermal's sedative oozed into my bloodstream. + +“There, there,” he said. “It's nothing permanent. We can grow you a new clone and refresh it from your last backup. Unfortunately, that backup is a few months old. If we'd caught it earlier, we may've been able to salvage a current backup, but given the deterioration you've displayed to date… Well, there just wouldn't be any point.” + +My heart hammered. I was going to lose two months—lose it all, never happened. My assassination, the new Hall of Presidents and my shameful attempt thereon, the fights with Lil, Lil and Dan, the meeting. My plans for the rehab! All of it, good and bad, every moment flensed away. + +I couldn't do it. I had a rehab to finish, and I was the only one who understood how it had to be done. Without my relentless prodding, the ad-hocs would surely revert to their old, safe ways. They might even leave it half-done, halt the process for an interminable review, present a soft belly for Debra to savage. + +I wouldn't be restoring from backup. + +I had two more seizures before the interface finally gave up and shut itself down. I remember the first, a confusion of vision-occluding strobes and uncontrollable thrashing and the taste of copper, but the second happened without waking me from deep unconsciousness. + +When I came to again in the infirmary, Dan was still there. He had a day's growth of beard and new worrylines at the corners of his newly rejuvenated eyes. The doctor came in, shaking his head. + +“Well, now, it seems like the worst is over. I've drawn up the consent forms for the refresh and the new clone will be ready in an hour or two. In the meantime, I think heavy sedation is in order. Once the restore's been completed, we'll retire this body for you and we'll be all finished up.” + +Retire this body? Kill me, is what it meant. + +“No,” I said. I thrilled in my restraints: my voice was back under my control! + +“Oh, really now.” The doc lost his bedside manner, let his exasperation slip through. “There's nothing else for it. If you'd come to me when it all started, well, we might've had other options. You've got no one to blame but yourself.” + +“No,” I repeated. “Not now. I won't sign.” + +Dan put his hand on mine. I tried to jerk out from under it, but the restraints and his grip held me fast. “You've got to do it, Julius. It's for the best,” he said. + +“I'm not going to let you kill me,” I said, through clenched teeth. His fingertips were callused, worked rough with exertion well beyond the normal call of duty. + +“No one's killing you, son,” the doctor said. Son, son, son. Who knew how old he was? He could be 18 for all I knew. “It's just the opposite: we're saving you. If you continue like this, it will only get worse. The seizures, mental breakdown, the whole melon going soft. You don't want that.” + +I thought of Zed's spectacular transformation into a crazy person. /{No, I sure don't}/. “I don't care about the interface. Chop it out. I can't do it now.” I swallowed. “Later. After the rehab. Eight more weeks.” + +The irony! Once the doc knew I was serious, he sent Dan out of the room and rolled his eyes up while he placed a call. I saw his gorge work as he subvocalized. He left me bound to the table, to wait. + +No clocks in the infirmary, and no internal clock, and it may have been ten minutes or five hours. I was catheterized, but I didn't know it until urgent necessity made the discovery for me. + +When the doc came back, he held a small device that I instantly recognized: a HERF gun. + +Oh, it wasn't the same model I'd used on the Hall of Presidents. This one was smaller, and better made, with the precise engineering of a surgical tool. The doc raised his eyebrows at me. “You know what this is,” he said, flatly. A dim corner of my mind gibbered, /{he knows, he knows, the Hall of Presidents}/. But he didn't know. That episode was locked in my mind, invulnerable to backup. + +“I know,” I said. + +“This one is high-powered in the extreme. It will penetrate the interface's shielding and fuse it. It probably won't turn you into a vegetable. That's the best I can do. If this fails, we will restore you from your last backup. You have to sign the consent before I use it.” He'd dropped all kindly pretense from his voice, not bothering to disguise his disgust. I was pitching out the miracle of the Bitchun Society, the thing that had all but obsoleted the medical profession: why bother with surgery when you can grow a clone, take a backup, and refresh the new body? Some people swapped corpuses just to get rid of a cold. + +I signed. The doc wheeled my gurney into the crash and hum of the utilidors and then put it on a freight tram that ran to the Imagineering compound, and thence to a heavy, exposed Faraday cage. Of course: using the HERF on me would kill any electronics in the neighborhood. They had to shield me before they pulled the trigger. + +The doc placed the gun on my chest and loosened my restraints. He sealed the cage and retreated to the lab's door. He pulled a heavy apron and helmet with faceguard from a hook beside the door. + +“Once I am outside the door, point it at your head and pull the trigger. I'll come back in five minutes. Once I am in the room, place the gun on the floor and do not touch it. It is only good for a single usage, but I have no desire to find out I'm wrong.” + +He closed the door. I took the pistol in my hand. It was heavy, dense with its stored energy, the tip a parabolic hollow to better focus its cone. + +I lifted the gun to my temple and let it rest there. My thumb found the trigger-stud. + +I paused. This wouldn't kill me, but it might lock the interface forever, paralyzing me, turning me into a thrashing maniac. I knew that I would never be able to pull the trigger. The doc must've known, too—this was his way of convincing me to let him do that restore. + +I opened my mouth to call the doc, and what came out was “Waaagh!” + +The seizure started. My arm jerked and my thumb nailed the stud, and there was an ozone tang. The seizure stopped. + +I had no more interface. + +The doc looked sour and pinched when he saw me sitting up on the gurney, rubbing at my biceps. He produced a handheld diagnostic tool and pointed it at my melon, then pronounced every bit of digital microcircuitry in it dead. For the first time since my twenties, I was no more advanced than nature had made me. + +The restraints left purple bruises at my wrists and ankles, where I'd thrashed against them. I hobbled out of the Faraday cage and the lab under my own power, but just barely, my muscles groaning from the inadvertent isometric exercises of my seizure. + +Dan was waiting in the utilidor, crouched and dozing against the wall. The doc shook him awake and his head snapped up, his hand catching the doc's in a lightning-quick reflex. It was easy to forget Dan's old line of work here in the Magic Kingdom, but when he smoothly snagged the doc's arm and sprang to his feet, eyes hard and alert, I remembered. My old pal, the action hero. + +Quickly, Dan released the doc and apologized. He assessed my physical state and wordlessly wedged his shoulder in my armpit, supporting me. I didn't have the strength to stop him. I needed sleep. + +“I'm taking you home,” he said. “We'll fight Debra off tomorrow.” + +“Sure,” I said, and boarded the waiting tram. + +But we didn't go home. Dan took me back to my hotel, the Contemporary, and brought me up to my door. He keycarded the lock and stood awkwardly as I hobbled into the empty room that was my new home, as I collapsed into the bed that was mine now. + +With an apologetic look, he slunk away, back to Lil and the house we'd shared. + +I slapped on a sedative transdermal that the doc had given me, and added a mood-equalizer that he'd recommended to control my “personality swings.” In seconds, I was asleep. + +1~ CHAPTER 7 + +The meds helped me cope with the next couple of days, starting the rehab on the Mansion. We worked all night erecting a scaffolding around the facade, though no real work would be done on it—we wanted the appearance of rapid progress, and besides, I had an idea. + +I worked alongside Dan, using him as a personal secretary, handling my calls, looking up plans, monitoring the Net for the first grumblings as the Disney-going public realized that the Mansion was being taken down for a full-blown rehab. We didn't exchange any unnecessary words, standing side by side without ever looking into one another's eyes. I couldn't really feel awkward around Dan, anyway. He never let me, and besides we had our hands full directing disappointed guests away from the Mansion. A depressing number of them headed straight for the Hall of Presidents. + +We didn't have to wait long for the first panicked screed about the Mansion to appear. Dan read it aloud off his HUD: “Hey! Anyone hear anything about scheduled maintenance at the HM? I just buzzed by on the way to the new H of P's and it looks like some big stuff's afoot—scaffolding, castmembers swarming in and out, see the pic. I hope they're not screwing up a good thing. BTW, don't miss the new H of P's—very Bitchun.” + +“Right,” I said. “Who's the author, and is he on the list?” + +Dan cogitated a moment. “/{She}/ is Kim Wright, and she's on the list. Good Whuffie, lots of Mansion fanac, big readership.” + +“Call her,” I said. + +This was the plan: recruit rabid fans right away, get 'em in costume, and put 'em up on the scaffolds. Give them outsized, bat-adorned tools and get them to play at construction activity in thumpy, undead pantomime. In time, Suneep and his gang would have a batch of telepresence robots up and running, and we'd move to them, get them wandering the queue area, interacting with curious guests. The new Mansion would be open for business in 48 hours, albeit in stripped-down fashion. The scaffolding made for a nice weenie, a visual draw that would pull the hordes that thronged Debra's Hall of Presidents over for a curious peek or two. Buzz city. + +I'm a pretty smart guy. + +Dan paged this Kim person and spoke to her as she was debarking the Pirates of the Caribbean. I wondered if she was the right person for the job: she seemed awfully enamored of the rehabs that Debra and her crew had performed. If I'd had more time, I would've run a deep background check on every one of the names on my list, but that would've taken months. + +Dan made some small talk with Kim, speaking aloud in deference to my handicap, before coming to the point. “We read your post about the Mansion's rehab. You're the first one to notice it, and we wondered if you'd be interested in coming by to find out a little more about our plans.” + +Dan winced. “She's a screamer,” he whispered. + +Reflexively, I tried to pull up a HUD with my files on the Mansion fans we hoped to recruit. Of course, nothing happened. I'd done that a dozen times that morning, and there was no end in sight. I couldn't seem to get lathered up about it, though, nor about anything else, not even the hickey just visible under Dan's collar. The transdermal mood-balancer on my bicep was seeing to that—doctor's orders. + +“Fine, fine. We're standing by the Pet Cemetery, two cast members, male, in Mansion costumes. About five-ten, apparent 30. You can't miss us.” + +She didn't. She arrived out of breath and excited, jogging. She was apparent 20, and dressed like a real 20 year old, in a hipster climate-control cowl that clung to and released her limbs, which were long and double-kneed. All the rage among the younger set, including the girl who'd shot me. + +But the resemblance to my killer ended with her dress and body. She wasn't wearing a designer face, rather one that had enough imperfections to be the one she was born with, eyes set close and nose wide and slightly squashed. + +I admired the way she moved through the crowd, fast and low but without jostling anyone. “Kim,” I called as she drew near. “Over here.” + +She gave a happy shriek and made a beeline for us. Even charging full-bore, she was good enough at navigating the crowd that she didn't brush against a single soul. When she reached us, she came up short and bounced a little. “Hi, I'm Kim!” she said, pumping my arm with the peculiar violence of the extra-jointed. “Julius,” I said, then waited while she repeated the process with Dan. + +“So,” she said, “what's the deal?” + +I took her hand. “Kim, we've got a job for you, if you're interested.” + +She squeezed my hand hard and her eyes shone. “I'll take it!” she said. + +I laughed, and so did Dan. It was a polite, castmembery sort of laugh, but underneath it was relief. “I think I'd better explain it to you first,” I said. + +“Explain away!” she said, and gave my hand another squeeze. + +I let go of her hand and ran down an abbreviated version of the rehab plans, leaving out anything about Debra and her ad-hocs. Kim drank it all in greedily. She cocked her head at me as I ran it down, eyes wide. It was disconcerting, and I finally asked, “Are you recording this?” + +Kim blushed. “I hope that's okay! I'm starting a new Mansion scrapbook. I have one for every ride in the Park, but this one's gonna be a world-beater!” + +Here was something I hadn't thought about. Publishing ad-hoc business was tabu inside Park, so much so that it hadn't occurred to me that the new castmembers we brought in would want to record every little detail and push it out over the Net as a big old Whuffie collector. + +“I can switch it off,” Kim said. She looked worried, and I really started to grasp how important the Mansion was to the people we were recruiting, how much of a privilege we were offering them. + +“Leave it rolling,” I said. “Let's show the world how it's done.” + +We led Kim into a utilidor and down to costuming. She was half-naked by the time we got there, literally tearing off her clothes in anticipation of getting into character. Sonya, a Liberty Square ad-hoc that we'd stashed at costuming, already had clothes waiting for her, a rotting maid's uniform with an oversized toolbelt. + +We left Kim on the scaffolding, energetically troweling a water-based cement substitute onto the wall, scraping it off and moving to a new spot. It looked boring to me, but I could believe that we'd have to tear her away when the time came. + +We went back to trawling the Net for the next candidate. + +By lunchtime, there were ten drilling, hammering, troweling new castmembers around the scaffolding, pushing black wheelbarrows, singing “Grim Grinning Ghosts” and generally having a high old time. + +“This'll do,” I said to Dan. I was exhausted and soaked with sweat, and the transdermal under my costume itched. Despite the happy-juice in my bloodstream, a streak of uncastmemberly crankiness was shot through my mood. I needed to get offstage. + +Dan helped me hobble away, and as we hit the utilidor, he whispered in my ear, “This was a great idea, Julius. Really.” + +We jumped a tram over to Imagineering, my chest swollen with pride. Suneep had three of his assistants working on the first generation of mobile telepresence robots for the exterior, and had promised a prototype for that afternoon. The robots were easy enough—just off-the-shelf stuff, really—but the costumes and kinematics routines were something else. Thinking about what he and Suneep's gang of hypercreative super-geniuses would come up with cheered me up a little, as did being out of the public eye. + +Suneep's lab looked like it had been hit by a tornado. Imagineer packs rolled in and out with arcane gizmos, or formed tight argumentative knots in the corners as they shouted over whatever their HUDs were displaying. In the middle of it all was Suneep, who looked like he was barely restraining an urge to shout Yippee! He was clearly in his element. + +He threw his arms open when he caught sight of Dan and me, threw them wide enough to embrace the whole mad, gibbering chaos. “What wonderful flumgubbery!” he shouted, over the noise. + +“Sure is,” I agreed. “How's the prototype coming?” + +Suneep waved absently, his short fingers describing trivialities in the air. “In due time, in due time. I've put that team onto something else, a kinematics routine for a class of flying spooks that use gasbags to stay aloft—silent and scary. It's old spy-tech, and the retrofit's coming tremendously. Take a look!” He pointed a finger at me and, presumably, squirted some data my way. + +“I'm offline,” I reminded him gently. + +He slapped his forehead, took a moment to push his hair off his face, and gave me an apologetic wave. “Of course, of course. Here.” He unrolled an LCD and handed it to me. A flock of spooks danced on the screen, rendered against the ballroom scene. They were thematically consistent with the existing Mansion ghosts, more funny than scary, and their faces were familiar. I looked around the lab and realized that they'd caricatured various Imagineers. + +“Ah! You noticed,” Suneep said, rubbing his hands together. “A very good joke, yes?” + +“This is terrific,” I said, carefully. “But I really need some robots up and running by tomorrow night, Suneep. We discussed this, remember?” Without telepresence robots, my recruiting would be limited to fans like Kim, who lived in the area. I had broader designs than that. + +Suneep looked disappointed. “Of course. We discussed it. I don't like to stop my people when they have good ideas, but there's a time and a place. I'll put them on it right away. Leave it to me.” + +Dan turned to greet someone, and I looked to see who it was. Lil. Of course. She was raccoon-eyed with fatigue, and she reached out for Dan's hand, saw me, and changed her mind. + +“Hi, guys,” she said, with studied casualness. + +“Oh, hello!” said Suneep. He fired his finger at her—the flying ghosts, I imagined. Lil's eyes rolled up for a moment, then she nodded exhaustedly at him. + +“Very good,” she said. “I just heard from Lisa. She says the indoor crews are on-schedule. They've got most of the animatronics dismantled, and they're taking down the glass in the Ballroom now.” The Ballroom ghost effects were accomplished by means of a giant pane of polished glass that laterally bisected the room. The Mansion had been built around it—it was too big to take out in one piece. “They say it'll be a couple days before they've got it cut up and ready to remove.” + +A pocket of uncomfortable silence descended on us, the roar of the Imagineers rushing in to fill it. + +“You must be exhausted,” Dan said, at length. + +“Goddamn right,” I said, at the same moment that Lil said, “I guess I am.” + +We both smiled wanly. Suneep put his arms around Lil's and my shoulders and squeezed. He smelled of an exotic cocktail of industrial lubricant, ozone, and fatigue poisons. + +“You two should go home and give each other a massage,” he said. “You've earned some rest.” + +Dan met my eye and shook his head apologetically. I squirmed out from under Suneep's arm and thanked him quietly, then slunk off to the Contemporary for a hot tub and a couple hours of sleep. + +I came back to the Mansion at sundown. It was cool enough that I took a surface route, costume rolled in a shoulderbag, instead of riding through the clattering, air-conditioned comfort of the utilidors. + +As a freshening breeze blew across me, I suddenly had a craving for /{real}/ weather, the kind of climate I'd grown up with in Toronto. It was October, for chrissakes, and a lifetime of conditioning told me that it was May. I stopped and leaned on a bench for a moment and closed my eyes. Unbidden, and with the clarity of a HUD, I saw High Park in Toronto, clothed in its autumn colors, fiery reds and oranges, shades of evergreen and earthy brown. God, I needed a vacation. + +I opened my eyes and realized that I was standing in front of the Hall of Presidents, and that there was a queue ahead of me for it, one that stretched back and back. I did a quick sum in my head and sucked air between my teeth: they had enough people for five or six full houses waiting here—easily an hour's wait. The Hall /{never}/ drew crowds like this. Debra was working the turnstiles in Betsy Ross gingham, and she caught my eye and snapped a nod at me. + +I stalked off to the Mansion. A choir of zombie-shambling new recruits had formed up in front of the gate, and were groaning their way through “Grim Grinning Ghosts,” with a new call-and-response structure. A small audience participated, urged on by the recruits on the scaffolding. + +“Well, at least that's going right,” I muttered to myself. And it was, except that I could see members of the ad-hoc looking on from the sidelines, and the looks weren't kindly. Totally obsessive fans are a good measure of a ride's popularity, but they're kind of a pain in the ass, too. They lipsynch the soundtrack, cadge souvenirs and pester you with smarmy, show-off questions. After a while, even the cheeriest castmember starts to lose patience, develop an automatic distaste for them. + +The Liberty Square ad-hocs who were working on the Mansion had been railroaded into approving a rehab, press-ganged into working on it, and were now forced to endure the company of these grandstanding megafans. If I'd been there when it all started—instead of sleeping!—I may've been able to massage their bruised egos, but now I wondered if it was too late. + +Nothing for it but to do it. I ducked into a utilidor, changed into my costume and went back onstage. I joined the call-and-response enthusiastically, walking around to the ad-hocs and getting them to join in, reluctantly or otherwise. + +By the time the choir retired, sweaty and exhausted, a group of ad-hocs were ready to take their place, and I escorted my recruits to an offstage break-room. + +Suneep didn't deliver the robot prototypes for a week, and told me that it would be another week before I could have even five production units. Though he didn't say it, I got the sense that his guys were out of control, so excited by the freedom from ad-hoc oversight that they were running wild. Suneep himself was nearly a wreck, nervous and jumpy. I didn't press it. + +Besides, I had problems of my own. The new recruits were multiplying. I was staying on top of the fan response to the rehab from a terminal I'd had installed in my hotel room. Kim and her local colleagues were fielding millions of hits every day, their Whuffie accumulating as envious fans around the world logged in to watch their progress on the scaffolding. + +That was all according to plan. What wasn't according to plan was that the new recruits were doing their own recruiting, extending invitations to their net-pals to come on down to Florida, bunk on their sofas and guest-beds, and present themselves to me for active duty. + +The tenth time it happened, I approached Kim in the break-room. Her gorge was working, her eyes tracked invisible words across the middle distance. No doubt she was penning yet another breathless missive about the magic of working in the Mansion. “Hey, there,” I said. “Have you got a minute to meet with me?” + +She held up a single finger, then, a moment later, gave me a bright smile. + +“Hi, Julius!” she said. “Sure!” + +“Why don't you change into civvies, we'll take a walk through the Park and talk?” + +Kim wore her costume every chance she got. I'd been quite firm about her turning it in to the laundry every night instead of wearing it home. + +Reluctantly, she stepped into a change-room and switched into her cowl. We took the utilidor to the Fantasyland exit and walked through the late-afternoon rush of children and their adults, queued deep and thick for Snow White, Dumbo and Peter Pan. + +“How're you liking it here?” I asked. + +Kim gave a little bounce. “Oh, Julius, it's the best time of my life, really! A dream come true. I'm meeting so many interesting people, and I'm really feeling creative. I can't wait to try out the telepresence rigs, too.” + +“Well, I'm really pleased with what you and your friends are up to here. You're working hard, putting on a good show. I like the songs you've been working up, too.” + +She did one of those double-kneed shuffles that was the basis of any number of action vids those days and she was suddenly standing in front of me, hand on my shoulder, looking into my eyes. She looked serious. + +“Is there a problem, Julius? If there is, I'd rather we just talked about it, instead of making chitchat.” + +I smiled and took her hand off my shoulder. “How old are you, Kim?” + +“Nineteen,” she said. “What's the problem?” + +Nineteen! Jesus, no wonder she was so volatile. /{What's my excuse, then?}/ + +“It's not a problem, Kim, it's just something I wanted to discuss with you. The people you-all have been bringing down to work for me, they're all really great castmembers.” + +“But?” + +“But we have limited resources around here. Not enough hours in the day for me to stay on top of the new folks, the rehab, everything. Not to mention that until we open the new Mansion, there's a limited number of extras we can use out front. I'm concerned that we're going to put someone on stage without proper training, or that we're going to run out of uniforms; I'm also concerned about people coming all the way here and discovering that there aren't any shifts for them to take.” + +She gave me a relieved look. “Is /{that}/ all? Don't worry about it. I've been talking to Debra, over at the Hall of Presidents, and she says she can pick up any people who can't be used at the Mansion—we could even rotate back and forth!” She was clearly proud of her foresight. + +My ears buzzed. Debra, one step ahead of me all along the way. She probably suggested that Kim do some extra recruiting in the first place. She'd take in the people who came down to work the Mansion, convince them they'd been hard done by the Liberty Square crew, and rope them into her little Whuffie ranch, the better to seize the Mansion, the Park, the whole of Walt Disney World. + +“Oh, I don't think it'll come to that,” I said, carefully. “I'm sure we can find a use for them all at the Mansion. More the merrier.” + +Kim cocked quizzical, but let it go. I bit my tongue. The pain brought me back to reality, and I started planning costume production, training rosters, bunking. God, if only Suneep would finish the robots! + +“What do you mean, ‘no’?” I said, hotly. + +Lil folded her arms and glared. “No, Julius. It won't fly. The group is already upset that all the glory is going to the new people, they'll never let us bring more in. They also won't stop working on the rehab to train them, costume them, feed them and mother them. They're losing Whuffie every day that the Mansion's shut up, and they don't want any more delays. Dave's already joined up with Debra, and I'm sure he's not the last one.” + +Dave—the jerk who'd pissed all over the rehab in the meeting. Of course he'd gone over. Lil and Dan stood side by side on the porch of the house where I'd lived. I'd driven out that night to convince Lil to sell the ad-hocs on bringing in more recruits, but it wasn't going according to plan. They wouldn't even let me in the house. + +“So what do I tell Kim?” + +“Tell her whatever you want,” Lil said. “You brought her in—you manage her. Take some goddamn responsibility for once in your life.” + +It wasn't going to get any better. Dan gave me an apologetic look. Lil glared a moment longer, then went into the house. + +“Debra's doing real well,” he said. “The net's all over her. Biggest thing ever. Flash-baking is taking off in nightclubs, dance mixes with the DJ's backup being shoved in bursts into the dancers.” + +“God,” I said. “I fucked up, Dan. I fucked it all up.” + +He didn't say anything, and that was the same as agreeing. + +Driving back to the hotel, I decided I needed to talk to Kim. She was a problem I didn't need, and maybe a problem I could solve. I pulled a screeching U-turn and drove the little runabout to her place, a tiny condo in a crumbling complex that had once been a gated seniors' village, pre-Bitchun. + +Her place was easy to spot. All the lights were burning, faint conversation audible through the screen door. I jogged up the steps two at a time, and was about to knock when a familiar voice drifted through the screen. + +Debra, saying: “Oh yes, oh yes! Terrific idea! I'd never really thought about using streetmosphere players to liven up the queue area, but you're making a lot of sense. You people have just been doing the /{best}/ work over at the Mansion—find me more like you and I'll take them for the Hall any day!” + +I heard Kim and her young friends chatting excitedly, proudly. The anger and fear suffused me from tip to toe, and I felt suddenly light and cool and ready to do something terrible. + +I padded silently down the steps and got into my runabout. + +Some people never learn. I'm one of them, apparently. + +I almost chortled over the foolproof simplicity of my plan as I slipped in through the cast entrance using the ID card I'd scored when my systems went offline and I was no longer able to squirt my authorization at the door. + +I changed clothes in a bathroom on Main Street, switching into a black cowl that completely obscured my features, then slunk through the shadows along the storefronts until I came to the moat around Cinderella's castle. Keeping low, I stepped over the fence and duck-walked down the embankment, then slipped into the water and sloshed across to the Adventureland side. + +Slipping along to the Liberty Square gateway, I flattened myself in doorways whenever I heard maintenance crews passing in the distance, until I reached the Hall of Presidents, and in a twinkling I was inside the theater itself. + +Humming the Small World theme, I produced a short wrecking bar from my cowl's tabbed pocket and set to work. + +The primary broadcast units were hidden behind a painted scrim over the stage, and they were surprisingly well built for a first generation tech. I really worked up a sweat smashing them, but I kept at it until not a single component remained recognizable. The work was slow and loud in the silent Park, but it lulled me into a sleepy reverie, an autohypnotic swing-bang-swing-bang timeless time. To be on the safe side, I grabbed the storage units and slipped them into the cowl. + +Locating their backup units was a little trickier, but years of hanging out at the Hall of Presidents while Lil tinkered with the animatronics helped me. I methodically investigated every nook, cranny and storage area until I located them, in what had been a break-room closet. By now, I had the rhythm of the thing, and I made short work of them. + +I did one more pass, wrecking anything that looked like it might be a prototype for the next generation or notes that would help them reconstruct the units I'd smashed. + +I had no illusions about Debra's preparedness—she'd have something offsite that she could get up and running in a few days. I wasn't doing anything permanent, I was just buying myself a day or two. + +I made my way clean out of the Park without being spotted, and sloshed my way into my runabout, shoes leaking water from the moat. + +For the first time in weeks, I slept like a baby. + +Of course, I got caught. I don't really have the temperament for Machiavellian shenanigans, and I left a trail a mile wide, from the muddy footprints in the Contemporary's lobby to the wrecking bar thoughtlessly left behind, with my cowl and the storage units from the Hall, forgotten on the back seat of my runabout. + +I whistled my personal jazzy uptempo version of “Grim Grinning Ghosts” as I made my way from Costuming, through the utilidor, out to Liberty Square, a few minutes before the Park opened. + +Standing in front of me were Lil and Debra. Debra was holding my cowl and wrecking bar. Lil held the storage units. + +I hadn't put on my transdermals that morning, and so the emotion I felt was unmuffled, loud and yammering. + +I ran. + +I ran past them, along the road to Adventureland, past the Tiki Room where I'd been killed, past the Adventureland gate where I'd waded through the moat, down Main Street. I ran and ran, elbowing early guests, trampling flowers, knocking over an apple cart across from the Penny Arcade. + +I ran until I reached the main gate, and turned, thinking I'd outrun Lil and Debra and all my problems. I'd thought wrong. They were both there, a step behind me, puffing and red. Debra held my wrecking bar like a weapon, and she brandished it at me. + +“You're a goddamn idiot, you know that?” she said. I think if we'd been alone, she would've swung it at me. + +“Can't take it when someone else plays rough, huh, Debra?” I sneered. + +Lil shook her head disgustedly. “She's right, you are an idiot. The ad-hoc's meeting in Adventureland. You're coming.” + +“Why?” I asked, feeling belligerent. “You going to honor me for all my hard work?” + +“We're going to talk about the future, Julius, what's left of it for us.” + +“For God's sake, Lil, can't you see what's going on? They /{killed}/ me! They did it, and now we're fighting each other instead of her! Why can't you see how /{wrong}/ that is?” + +“You'd better watch those accusations, Julius,” Debra said, quietly and intensely, almost hissing. “I don't know who killed you or why, but you're the one who's guilty here. You need help.” + +I barked a humorless laugh. Guests were starting to stream into the now-open Park, and several of them were watching intently as the three costumed castmembers shouted at each other. I could feel my Whuffie hemorrhaging. “Debra, you are purely full of shit, and your work is trite and unimaginative. You're a fucking despoiler and you don't even have the guts to admit it.” + +“That's /{enough}/, Julius,” Lil said, her face hard, her rage barely in check. “We're going.” + +Debra walked a pace behind me, Lil a pace before, all the way through the crowd to Adventureland. I saw a dozen opportunities to slip into a gap in the human ebb and flow and escape custody, but I didn't try. I wanted a chance to tell the whole world what I'd done and why I'd done it. + +Debra followed us in when we mounted the steps to the meeting room. Lil turned. “I don't think you should be here, Debra,” she said in measured tones. + +Debra shook her head. “You can't keep me out, you know. And you shouldn't want to. We're on the same side.” + +I snorted derisively, and I think it decided Lil. “Come on, then,” she said. + +It was SRO in the meeting room, packed to the gills with the entire ad-hoc, except for my new recruits. No work was being done on the rehab, then, and the Liberty Belle would be sitting at her dock. Even the restaurant crews were there. Liberty Square must've been a ghost town. It gave the meeting a sense of urgency: the knowledge that there were guests in Liberty Square wandering aimlessly, looking for castmembers to help them out. Of course, Debra's crew might've been around. + +The crowd's faces were hard and bitter, leaving no doubt in my mind that I was in deep shit. Even Dan, sitting in the front row, looked angry. I nearly started crying right then. Dan—oh, Dan. My pal, my confidant, my patsy, my rival, my nemesis. Dan, Dan, Dan. I wanted to beat him to death and hug him at the same time. + +Lil took the podium and tucked stray hairs behind her ears. “All right, then,” she said. I stood to her left and Debra stood to her right. + +“Thanks for coming out today. I'd like to get this done quickly. We all have important work to get to. I'll run down the facts: last night, a member of this ad-hoc vandalized the Hall of Presidents, rendering it useless. It's estimated that it will take at least a week to get it back up and running. + +“I don't have to tell you that this isn't acceptable. This has never happened before, and it will never happen again. We're going to see to that. + +“I'd like to propose that no further work be done on the Mansion until the Hall of Presidents is fully operational. I will be volunteering my services on the repairs.” + +There were nods in the audience. Lil wouldn't be the only one working at the Hall that week. “Disney World isn't a competition,” Lil said. “All the different ad-hocs work together, and we do it to make the Park as good as we can. We lose sight of that at our peril.” + +I nearly gagged on bile. “I'd like to say something,” I said, as calmly as I could manage. + +Lil shot me a look. “That's fine, Julius. Any member of the ad-hoc can speak.” + +I took a deep breath. “I did it, all right?” I said. My voice cracked. “I did it, and I don't have any excuse for having done it. It may not have been the smartest thing I've ever done, but I think you all should understand how I was driven to it. + +“We're not /{supposed}/ to be in competition with one another here, but we all know that that's just a polite fiction. The truth is that there's real competition in the Park, and that the hardest players are the crew that rehabbed the Hall of Presidents. They /{stole}/ the Hall from you! They did it while you were distracted, they used /{me}/ to engineer the distraction, they /{murdered}/ me!” I heard the shriek creeping into my voice, but I couldn't do anything about it. + +“Usually, the lie that we're all on the same side is fine. It lets us work together in peace. But that changed the day they had me shot. If you keep on believing it, you're going to lose the Mansion, the Liberty Belle, Tom Sawyer Island—all of it. All the history we have with this place—all the history that the billions who've visited it have—it's going to be destroyed and replaced with the sterile, thoughtless shit that's taken over the Hall. Once that happens, there's nothing left that makes this place special. Anyone can get the same experience sitting at home on the sofa! What happens then, huh? How much longer do you think this place will stay open once the only people here are /{you?}/” + +Debra smiled condescendingly. “Are you finished, then?” she asked, sweetly. “Fine. I know I'm not a member of this group, but since it was my work that was destroyed last night, I think I would like to address Julius's statements, if you don't mind.” She paused, but no one spoke up. + +“First of all, I want you all to know that we don't hold you responsible for what happened last night. We know who was responsible, and he needs help. I urge you to see to it that he gets it. + +“Next, I'd like to say that as far as I'm concerned, we are on the same side—the side of the Park. This is a special place, and it couldn't exist without all of our contributions. What happened to Julius was terrible, and I sincerely hope that the person responsible is caught and brought to justice. But that person wasn't me or any of the people in my ad-hoc. + +“Lil, I'd like to thank you for your generous offer of assistance, and we'll take you up on it. That goes for all of you—come on by the Hall, we'll put you to work. We'll be up and running in no time. + +“Now, as far as the Mansion goes, let me say this once and for all: neither me nor my ad-hoc have any desire to take over the operations of the Mansion. It is a terrific attraction, and it's getting better with the work you're all doing. If you've been worrying about it, then you can stop worrying now. We're all on the same side. + +“Thanks for hearing me out. I've got to go see my team now.” + +She turned and left, a chorus of applause following her out. + +Lil waited until it died down, then said, “All right, then, we've got work to do, too. I'd like to ask you all a favor, first. I'd like us to keep the details of last night's incident to ourselves. Letting the guests and the world know about this ugly business isn't good for anyone. Can we all agree to do that?” + +There was a moment's pause while the results were tabulated on the HUDs, then Lil gave them a million-dollar smile. “I knew you'd come through. Thanks, guys. Let's get to work.” + +I spent the day at the hotel, listlessly scrolling around on my terminal. Lil had made it very clear to me after the meeting that I wasn't to show my face inside the Park until I'd “gotten help,” whatever that meant. + +By noon, the news was out. It was hard to pin down the exact source, but it seemed to revolve around the new recruits. One of them had told their net-pals about the high drama in Liberty Square, and mentioned my name. + +There were already a couple of sites vilifying me, and I expected more. I needed some kind of help, that was for sure. + +I thought about leaving then, turning my back on the whole business and leaving Walt Disney World to start yet another new life, Whuffie-poor and fancy-free. + +It wouldn't be so bad. I'd been in poor repute before, not so long ago. That first time Dan and I had palled around, back at the U of T, I'd been the center of a lot of pretty ambivalent sentiment, and Whuffie-poor as a man can be. + +I slept in a little coffin on-campus, perfectly climate controlled. It was cramped and dull, but my access to the network was free and I had plenty of material to entertain myself. While I couldn't get a table in a restaurant, I was free to queue up at any of the makers around town and get myself whatever I wanted to eat and drink, whenever I wanted it. Compared to 99.99999 percent of all the people who'd ever lived, I had a life of unparalleled luxury. + +Even by the standards of the Bitchun Society, I was hardly a rarity. The number of low-esteem individuals at large was significant, and they got along just fine, hanging out in parks, arguing, reading, staging plays, playing music. + +Of course, that wasn't the life for me. I had Dan to pal around with, a rare high-net-Whuffie individual who was willing to fraternize with a shmuck like me. He'd stand me to meals at sidewalk cafes and concerts at the SkyDome, and shoot down any snotty reputation-punk who sneered at my Whuffie tally. Being with Dan was a process of constantly reevaluating my beliefs in the Bitchun Society, and I'd never had a more vibrant, thought-provoking time in all my life. + +I could have left the Park, deadheaded to anywhere in the world, started over. I could have turned my back on Dan, on Debra, on Lil and the whole mess. + +I didn't. + +I called up the doc. + +1~ CHAPTER 8 + +Doctor Pete answered on the third ring, audio-only. In the background, I heard a chorus of crying children, the constant backdrop of the Magic Kingdom infirmary. + +“Hi, doc,” I said. + +“Hello, Julius. What can I do for you?” Under the veneer of professional medical and castmember friendliness, I sensed irritation. + +/{Make it all good again}/. “I'm not really sure. I wanted to see if I could talk it over with you. I'm having some pretty big problems.” + +“I'm on-shift until five. Can it wait until then?” + +By then, I had no idea if I'd have the nerve to see him. “I don't think so—I was hoping we could meet right away.” + +“If it's an emergency, I can have an ambulance sent for you.” + +“It's urgent, but not an emergency. I need to talk about it in person. Please?” + +He sighed in undoctorly, uncastmemberly fashion. “Julius, I've got important things to do here. Are you sure this can't wait?” + +I bit back a sob. “I'm sure, doc.” + +“All right then. When can you be here?” + +Lil had made it clear that she didn't want me in the Park. “Can you meet me? I can't really come to you. I'm at the Contemporary, Tower B, room 2334.” + +“I don't really make house calls, son.” + +“I know, I know.” I hated how pathetic I sounded. “Can you make an exception? I don't know who else to turn to.” + +“I'll be there as soon as I can. I'll have to get someone to cover for me. Let's not make a habit of this, all right?” + +I whooshed out my relief. “I promise.” + +He disconnected abruptly, and I found myself dialing Dan. + +“Yes?” he said, cautiously. + +“Doctor Pete is coming over, Dan. I don't know if he can help me—I don't know if anyone can. I just wanted you to know.” + +He surprised me, then, and made me remember why he was still my friend, even after everything. “Do you want me to come over?” + +“That would be very nice,” I said, quietly. “I'm at the hotel.” + +“Give me ten minutes,” he said, and rang off. + +He found me on my patio, looking out at the Castle and the peaks of Space Mountain. To my left spread the sparkling waters of the Seven Seas Lagoon, to my right, the Property stretched away for mile after manicured mile. The sun was warm on my skin, faint strains of happy laughter drifted with the wind, and the flowers were in bloom. In Toronto, it would be freezing rain, gray buildings, noisome rapid transit (a monorail hissed by), and hard-faced anonymity. I missed it. + +Dan pulled up a chair next to mine and sat without a word. We both stared out at the view for a long while. + +“It's something else, isn't it?” I said, finally. + +“I suppose so,” he said. “I want to say something before the doc comes by, Julius.” + +“Go ahead.” + +“Lil and I are through. It should never have happened in the first place, and I'm not proud of myself. If you two were breaking up, that's none of my business, but I had no right to hurry it along.” + +“All right,” I said. I was too drained for emotion. + +“I've taken a room here, moved my things.” + +“How's Lil taking it?” + +“Oh, she thinks I'm a total bastard. I suppose she's right.” + +“I suppose she's partly right,” I corrected him. + +He gave me a gentle slug in the shoulder. “Thanks.” + +We waited in companionable silence until the doc arrived. + +He bustled in, his smile lines drawn up into a sour purse and waited expectantly. I left Dan on the patio while I took a seat on the bed. + +“I'm cracking up or something,” I said. “I've been acting erratically, sometimes violently. I don't know what's wrong with me.” I'd rehearsed the speech, but it still wasn't easy to choke out. + +“We both know what's wrong, Julius,” the doc said, impatiently. “You need to be refreshed from your backup, get set up with a fresh clone and retire this one. We've had this talk.” + +“I can't do it,” I said, not meeting his eye. “I just can't—isn't there another way?” + +The doc shook his head. “Julius, I've got limited resources to allocate. There's a perfectly good cure for what's ailing you, and if you won't take it, there's not much I can do for you.” + +“But what about meds?” + +“Your problem isn't a chemical imbalance, it's a mental defect. Your /{brain}/ is /{broken}/, son. All that meds will do is mask the symptoms, while you get worse. I can't tell you what you want to hear, unfortunately. Now, If you're ready to take the cure, I can retire this clone immediately and get you restored into a new one in 48 hours.” + +“Isn't there another way? Please? You have to help me—I can't lose all this.” I couldn't admit my real reasons for being so attached to this singularly miserable chapter in my life, not even to myself. + +The doctor rose to go. “Look, Julius, you haven't got the Whuffie to make it worth anyone's time to research a solution to this problem, other than the one that we all know about. I can give you mood-suppressants, but that's not a permanent solution.” + +“Why not?” + +He boggled. “You /{can't}/ just take dope for the rest of your life, son. Eventually, something will happen to this body—I see from your file that you're stroke-prone—and you're going to get refreshed from your backup. The longer you wait, the more traumatic it'll be. You're robbing from your future self for your selfish present.” + +It wasn't the first time the thought had crossed my mind. Every passing day made it harder to take the cure. To lie down and wake up friends with Dan, to wake up and be in love with Lil again. To wake up to a Mansion the way I remembered it, a Hall of Presidents where I could find Lil bent over with her head in a President's guts of an afternoon. To lie down and wake without disgrace, without knowing that my lover and my best friend would betray me, /{had}/ betrayed me. + +I just couldn't do it—not yet, anyway. + +Dan—Dan was going to kill himself soon, and if I restored myself from my old backup, I'd lose my last year with him. I'd lose /{his}/ last year. + +“Let's table that, doc. I hear what you're saying, but there're complications. I guess I'll take the mood-suppressants for now.” + +He gave me a cold look. “I'll give you a scrip, then. I could've done that without coming out here. Please don't call me anymore.” + +I was shocked by his obvious ire, but I didn't understand it until he was gone and I told Dan what had happened. + +“Us old-timers, we're used to thinking of doctors as highly trained professionals—all that pre-Bitchun med-school stuff, long internships, anatomy drills... Truth is, the average doc today gets more training in bedside manner than bioscience. ‘Doctor’ Pete is a technician, not an MD, not the way you and I mean it. Anyone with the kind of knowledge you're looking for is working as a historical researcher, not a doctor. + +“But that's not the illusion. The doc is supposed to be the authority on medical matters, even though he's only got one trick: restore from backup. You're reminding Pete of that, and he's not happy to have it happen.” + +I waited a week before returning to the Magic Kingdom, sunning myself on the white sand beach at the Contemporary, jogging the Walk Around the World, taking a canoe out to the wild and overgrown Discovery Island, and generally cooling out. Dan came by in the evenings and it was like old times, running down the pros and cons of Whuffie and Bitchunry and life in general, sitting on my porch with a sweating pitcher of lemonade. + +On the last night, he presented me with a clever little handheld, a museum piece that I recalled fondly from the dawning days of the Bitchun Society. It had much of the functionality of my defunct systems, in a package I could slip in my shirt pocket. It felt like part of a costume, like the turnip watches the Ben Franklin streetmosphere players wore at the American Adventure. + +Museum piece or no, it meant that I was once again qualified to participate in the Bitchun Society, albeit more slowly and less efficiently than I once may've. I took it downstairs the next morning and drove to the Magic Kingdom's castmember lot. + +At least, that was the plan. When I got down to the Contemporary's parking lot, my runabout was gone. A quick check with the handheld revealed the worst: my Whuffie was low enough that someone had just gotten inside and driven away, realizing that they could make more popular use of it than I could. + +With a sinking feeling, I trudged up to my room and swiped my key through the lock. It emitted a soft, unsatisfied _bzzz_ and lit up, “Please see the front desk.” My room had been reassigned, too. I had the short end of the Whuffie stick. + +At least there was no mandatory Whuffie check on the monorail platform, but the other people on the car were none too friendly to me, and no one offered me an inch more personal space than was necessary. I had hit bottom. + +I took the castmember entrance to the Magic Kingdom, clipping my name tag to my Disney Operations polo shirt, ignoring the glares of my fellow castmembers in the utilidors. + +I used the handheld to page Dan. “Hey there,” he said, brightly. I could tell instantly that I was being humored. + +“Where are you?” I asked. + +“Oh, up in the Square. By the Liberty Tree.” + +In front of the Hall of Presidents. I worked the handheld, pinged some Whuffie manually. Debra was spiked so high it seemed she'd never come down, as were Tim and her whole crew in aggregate. They were drawing from guests by the millions, and from castmembers and from people who'd read the popular accounts of their struggle against the forces of petty jealousy and sabotage—i.e., me. + +I felt light-headed. I hurried along to costuming and changed into the heavy green Mansion costume, then ran up the stairs to the Square. + +I found Dan sipping a coffee and sitting on a bench under the giant, lantern-hung Liberty Tree. He had a second cup waiting for me, and patted the bench next to him. I sat with him and sipped, waiting for him to spill whatever bit of rotten news he had for me this morning—I could feel it hovering like storm clouds. + +He wouldn't talk though, not until we finished the coffee. Then he stood and strolled over to the Mansion. It wasn't rope-drop yet, and there weren't any guests in the Park, which was all for the better, given what was coming next. + +“Have you taken a look at Debra's Whuffie lately?” he asked, finally, as we stood by the pet cemetery, considering the empty scaffolding. + +I started to pull out the handheld but he put a hand on my arm. “Don't bother,” he said, morosely. “Suffice it to say, Debra's gang is number one with a bullet. Ever since word got out about what happened to the Hall, they've been stacking it deep. They can do just about anything, Jules, and get away with it.” + +My stomach tightened and I found myself grinding my molars. “So, what is it they've done, Dan?” I asked, already knowing the answer. + +Dan didn't have to respond, because at that moment, Tim emerged from the Mansion, wearing a light cotton work-smock. He had a thoughtful expression, and when he saw us, he beamed his elfin grin and came over. + +“Hey guys!” he said. + +“Hi, Tim,” Dan said. I nodded, not trusting myself to speak. + +“Pretty exciting stuff, huh?” he said. + +“I haven't told him yet,” Dan said, with forced lightness. “Why don't you run it down?” + +“Well, it's pretty radical, I have to admit. We've learned some stuff from the Hall that we wanted to apply, and at the same time, we wanted to capture some of the historical character of the ghost story.” + +I opened my mouth to object, but Dan put a hand on my forearm. “Really?” he asked innocently. “How do you plan on doing that?” + +“Well, we're keeping the telepresence robots—that's a honey of an idea, Julius—but we're giving each one an uplink so that it can flash-bake. We've got some high-Whuffie horror writers pulling together a series of narratives about the lives of each ghost: how they met their tragic ends, what they've done since, you know. + +“The way we've storyboarded it, the guests stream through the ride pretty much the way they do now, walking through the preshow and then getting into the ride-vehicles, the Doom Buggies. But here's the big change: we /{slow it all down}/. We trade off throughput for intensity, make it more of a premium product. + +“So you're a guest. From the queue to the unload zone, you're being chased by these ghosts, these telepresence robots, and they're really scary—I've got Suneep's concept artists going back to the drawing board, hitting basic research on stuff that'll just scare the guests silly. When a ghost catches you, lays its hands on you—wham! Flash-bake! You get its whole grisly story in three seconds, across your frontal lobe. By the time you've left, you've had ten or more ghost-contacts, and the next time you come back, it's all new ghosts with all new stories. The way that the Hall's drawing 'em, we're bound to be a hit.” He put his hands behind his back and rocked on his heels, clearly proud of himself. + +When Epcot Center first opened, long, long ago, there'd been an ugly decade or so in ride design. Imagineering found a winning formula for Spaceship Earth, the flagship ride in the big golf ball, and, in their drive to establish thematic continuity, they'd turned the formula into a cookie-cutter, stamping out half a dozen clones for each of the “themed” areas in the Future Showcase. It went like this: first, we were cavemen, then there was ancient Greece, then Rome burned (cue sulfur-odor FX), then there was the Great Depression, and, finally, we reached the modern age. Who knows what the future holds? We do! We'll all have videophones and be living on the ocean floor. Once was cute—compelling and inspirational, even—but six times was embarrassing. Like everyone, once Imagineering got themselves a good hammer, everything started to resemble a nail. Even now, the Epcot ad-hocs were repeating the sins of their forebears, closing every ride with a scene of Bitchun utopia. + +And Debra was repeating the classic mistake, tearing her way through the Magic Kingdom with her blaster set to flash-bake. + +“Tim,” I said, hearing the tremble in my voice. “I thought you said that you had no designs on the Mansion, that you and Debra wouldn't be trying to take it away from us. Didn't you say that?” + +Tim rocked back as if I'd slapped him and the blood drained from his face. “But we're not taking it away!” he said. “You /{invited}/ us to help.” + +I shook my head, confused. “We did?” I said. + +“Sure,” he said. + +“Yes,” Dan said. “Kim and some of the other rehab cast went to Debra yesterday and asked her to do a design review of the current rehab and suggest any changes. She was good enough to agree, and they've come up with some great ideas.” I read between the lines: the newbies you invited in have gone over to the other side and we're going to lose everything because of them. I felt like shit. + +“Well, I stand corrected,” I said, carefully. Tim's grin came back and he clapped his hands together. /{He really loves the Mansion}/, I thought. /{He could have been on our side, if we had only played it all right.}/ + +Dan and I took to the utilidors and grabbed a pair of bicycles and sped towards Suneep's lab, jangling our bells at the rushing castmembers. “They don't have the authority to invite Debra in,” I panted as we pedaled. + +“Says who?” Dan said. + +“It was part of the deal—they knew that they were probationary members right from the start. They weren't even allowed into the design meetings.” + +“Looks like they took themselves off probation,” he said. + +Suneep gave us both a chilly look when we entered his lab. He had dark circles under his eyes and his hands shook with exhaustion. He seemed to be holding himself erect with nothing more than raw anger. + +“So much for building without interference,” he said. “We agreed that this project wouldn't change midway through. Now it has, and I've got other commitments that I'm going to have to cancel because this is going off-schedule.” + +I made soothing apologetic gestures with my hands. “Suneep, believe me, I'm just as upset about this as you are. We don't like this one little bit.” + +He harrumphed. “We had a deal, Julius,” he said, hotly. “I would do the rehab for you and you would keep the ad-hocs off my back. I've been holding up my end of the bargain, but where the hell have you been? If they replan the rehab now, I'll /{have}/ to go along with them. I can't just leave the Mansion half-done—they'll murder me.” + +The kernel of a plan formed in my mind. “Suneep, we don't like the new rehab plan, and we're going to stop it. You can help. Just stonewall them—tell them they'll have to find other Imagineering support if they want to go through with it, that you're booked solid.” + +Dan gave me one of his long, considering looks, then nodded a minute approval. “Yeah,” he drawled. “That'll help all right. Just tell 'em that they're welcome to make any changes they want to the plan, /{if}/ they can find someone else to execute them.” + +Suneep looked unhappy. “Fine—so then they go and find someone else to do it, and that person gets all the credit for the work my team's done so far. I just flush my time down the toilet.” + +“It won't come to that,” I said quickly. “If you can just keep saying no for a couple days, we'll do the rest.” + +Suneep looked doubtful. + +“I promise,” I said. + +Suneep ran his stubby fingers through his already crazed hair. “All right,” he said, morosely. + +Dan slapped him on the back. “Good man,” he said. + +It should have worked. It almost did. + +I sat in the back of the Adventureland conference room while Dan exhorted. + +“Look, you don't have to roll over for Debra and her people! This is /{your}/ garden, and you've tended it responsibly for years. She's got no right to move in on you—you've got all the Whuffie you need to defend the place, if you all work together.” + +No castmember likes confrontation, and the Liberty Square bunch were tough to rouse to action. Dan had turned down the air conditioning an hour before the meeting and closed up all the windows, so that the room was a kiln for hard-firing irritation into rage. I stood meekly in the back, as far as possible from Dan. He was working his magic on my behalf, and I was content to let him do his thing. + +When Lil had arrived, she'd sized up the situation with a sour expression: sit in the front, near Dan, or in the back, near me. She'd chosen the middle, and to concentrate on Dan I had to tear my eyes away from the sweat glistening on her long, pale neck. + +Dan stalked the aisles like a preacher, eyes blazing. “They're /{stealing}/ your future! They're /{stealing}/ your /{past}/! They claim they've got your support!” + +He lowered his tone. “I don't think that's true.” He grabbed a castmember by her hand and looked into her eyes. “Is it true?” he said so low it was almost a whisper. + +“No,” the castmember said. + +He dropped her hand and whirled to face another castmember. “Is it true?” he demanded, raising his voice, slightly. + +“No!” the castmember said, his voice unnaturally loud after the whispers. A nervous chuckle rippled through the crowd. + +“Is it true?” he said, striding to the podium, shouting now. + +“No!” the crowd roared. + +“NO!” he shouted back. + +“You don't /{have to}/ roll over and take it! You can fight back, carry on with the plan, send them packing. They're only taking over because you're letting them. Are you going to let them?” + +“NO!” + +Bitchun wars are rare. Long before anyone tries a takeover of anything, they've done the arithmetic and ensured themselves that the ad-hoc they're displacing doesn't have a hope of fighting back. + +For the defenders, it's a simple decision: step down gracefully and salvage some reputation out of the thing—fighting back will surely burn away even that meager reward. + +No one benefits from fighting back—least of all the thing everyone's fighting over. For example: + +It was the second year of my undergrad, taking a double-major in not making trouble for my profs and keeping my mouth shut. It was the early days of Bitchun, and most of us were still a little unclear on the concept. + +Not all of us, though: a group of campus shit-disturbers, grad students in the Sociology Department, were on the bleeding edge of the revolution, and they knew what they wanted: control of the Department, oustering of the tyrannical, stodgy profs, a bully pulpit from which to preach the Bitchun gospel to a generation of impressionable undergrads who were too cowed by their workloads to realize what a load of shit they were being fed by the University. + +At least, that's what the intense, heavyset woman who seized the mic at my Soc 200 course said, that sleepy morning mid-semester at Convocation Hall. Nineteen hundred students filled the hall, a capacity crowd of bleary, coffee-sipping time-markers, and they woke up in a hurry when the woman's strident harangue burst over their heads. + +I saw it happen from the very start. The prof was down there on the stage, a speck with a tie-mic, droning over his slides, and then there was a blur as half a dozen grad students rushed the stage. They were dressed in University poverty-chic, wrinkled slacks and tattered sports coats, and five of them formed a human wall in front of the prof while the sixth, the heavyset one with the dark hair and the prominent mole on her cheek, unclipped his mic and clipped it to her lapel. + +“Wakey wakey!” she called, and the reality of the moment hit home for me: this wasn't on the lesson-plan. + +“Come on, heads up! This is /{not}/ a drill. The University of Toronto Department of Sociology is under new management. If you'll set your handhelds to ‘receive,’ we'll be beaming out new lesson-plans momentarily. If you've forgotten your handhelds, you can download the plans later on. I'm going to run it down for you right now, anyway. + +“Before I start though, I have a prepared statement for you. You'll probably hear this a couple times more today, in your other classes. It's worth repeating. Here goes: + +“We reject the stodgy, tyrannical rule of the profs at this Department. We demand bully pulpits from which to preach the Bitchun gospel. Effective immediately, the University of Toronto Ad-Hoc Sociology Department is /{in charge}/. We promise high-relevance curriculum with an emphasis on reputation economies, post-scarcity social dynamics, and the social theory of infinite life-extension. No more Durkheim, kids, just deadheading! This will be /{fun}/.” + +She taught the course like a pro—you could tell she'd been drilling her lecture for a while. Periodically, the human wall behind her shuddered as the prof made a break for it and was restrained. + +At precisely 9:50 a.m. she dismissed the class, which had hung on her every word. Instead of trudging out and ambling to our next class, the whole nineteen hundred of us rose, and, as one, started buzzing to our neighbors, a roar of “Can you believe it?” that followed us out the door and to our next encounter with the Ad-Hoc Sociology Department. + +It was cool, that day. I had another soc class, Constructing Social Deviance, and we got the same drill there, the same stirring propaganda, the same comical sight of a tenured prof battering himself against a human wall of ad-hocs. + +Reporters pounced on us when we left the class, jabbing at us with mics and peppering us with questions. I gave them a big thumbs-up and said, “Bitchun!” in classic undergrad eloquence. + +The profs struck back the next morning. I got a heads-up from the newscast as I brushed my teeth: the Dean of the Department of Sociology told a reporter that the ad-hocs' courses would not be credited, that they were a gang of thugs who were totally unqualified to teach. A counterpoint interview from a spokesperson for the ad-hocs established that all of the new lecturers had been writing course-plans and lecture notes for the profs they replaced for years, and that they'd also written most of their journal articles. + +The profs brought University security out to help them regain their lecterns, only to be repelled by ad-hoc security guards in homemade uniforms. University security got the message—anyone could be replaced—and stayed away. + +The profs picketed. They held classes out front attended by grade-conscious brown-nosers who worried that the ad-hocs' classes wouldn't count towards their degrees. Fools like me alternated between the outdoor and indoor classes, not learning much of anything. + +No one did. The profs spent their course-times whoring for Whuffie, leading the seminars like encounter groups instead of lectures. The ad-hocs spent their time badmouthing the profs and tearing apart their coursework. + +At the end of the semester, everyone got a credit and the University Senate disbanded the Sociology program in favor of a distance-ed offering from Concordia in Montreal. Forty years later, the fight was settled forever. Once you took backup-and-restore, the rest of the Bitchunry just followed, a value-system settling over you. + +Those who didn't take backup-and-restore may have objected, but, hey, they all died. + +The Liberty Square ad-hocs marched shoulder to shoulder through the utilidors and, as a mass, took back the Haunted Mansion. Dan, Lil and I were up front, careful not to brush against one another as we walked quickly through the backstage door and started a bucket-brigade, passing out the materials that Debra's people had stashed there, along a line that snaked back to the front porch of the Hall of Presidents, where they were unceremoniously dumped. + +Once the main stash was vacated, we split up and roamed the ride, its service corridors and dioramas, the break-room and the secret passages, rounding up every scrap of Debra's crap and passing it out the door. + +In the attic scene, I ran into Kim and three of her giggly little friends, their eyes glinting in the dim light. The gaggle of transhuman kids made my guts clench, made me think of Zed and of Lil and of my unmediated brain, and I had a sudden urge to shred them verbally. + +No. + +No. That way lay madness and war. This was about taking back what was ours, not punishing the interlopers. “Kim, I think you should leave,” I said, quietly. + +She snorted and gave me a dire look. “Who died and made you boss?” she said. Her friends thought it very brave, they made it clear with double-jointed hip-thrusts and glares. + +“Kim, you can leave now or you can leave later. The longer you wait, the worse it will be for you and your Whuffie. You blew it, and you're not a part of the Mansion anymore. Go home, go to Debra. Don't stay here, and don't come back. Ever.” + +Ever. Be cast out of this thing that you love, that you obsess over, that you worked for. “Now,” I said, quiet, dangerous, barely in control. + +They sauntered into the graveyard, hissing vitriol at me. Oh, they had lots of new material to post to the anti-me sites, messages that would get them Whuffie with people who thought I was the scum of the earth. A popular view, those days. + +I got out of the Mansion and looked at the bucket-brigade, followed it to the front of the Hall. The Park had been open for an hour, and a herd of guests watched the proceedings in confusion. The Liberty Square ad-hocs passed their loads around in clear embarrassment, knowing that they were violating every principle they cared about. + +As I watched, gaps appeared in the bucket-brigade as castmembers slipped away, faces burning scarlet with shame. At the Hall of Presidents, Debra presided over an orderly relocation of her things, a cheerful cadre of her castmembers quickly moving it all offstage. I didn't have to look at my handheld to know what was happening to our Whuffie. + +By evening, we were back on schedule. Suneep supervised the placement of his telepresence rigs and Lil went over every system in minute detail, bossing a crew of ad-hocs that trailed behind her, double- and triple-checking it all. + +Suneep smiled at me when he caught sight of me, hand-scattering dust in the parlor. + +“Congratulations, sir,” he said, and shook my hand. “It was masterfully done.” + +“Thanks, Suneep. I'm not sure how masterful it was, but we got the job done, and that's what counts.” + +“Your partners, they're happier than I've seen them since this whole business started. I know how they feel!” + +My partners? Oh, yes, Dan and Lil. How happy were they, I wondered. Happy enough to get back together? My mood fell, even though a part of me said that Dan would never go back to her, not after all we'd been through together. + +“I'm glad you're glad. We couldn't have done it without you, and it looks like we'll be open for business in a week.” + +“Oh, I should think so. Are you coming to the party tonight?” + +Party? Probably something the Liberty Square ad-hocs were putting on. I would almost certainly be persona non grata. “I don't think so,” I said, carefully. “I'll probably work late here.” + +He chided me for working too hard, but once he saw that I had no intention of being dragged to the party, he left off. + +And that's how I came to be in the Mansion at 2 a.m. the next morning, dozing in a backstage break room when I heard a commotion from the parlor. Festive voices, happy and loud, and I assumed it was Liberty Square ad-hocs coming back from their party. + +I roused myself and entered the parlor. + +Kim and her friends were there, pushing hand-trucks of Debra's gear. I got ready to shout something horrible at them, and that's when Debra came in. I moderated the shout to a snap, opened my mouth to speak, stopped. + +Behind Debra were Lil's parents, frozen these long years in their canopic jars in Kissimmee. + +1~ CHAPTER 9 + +Lil's parents went into their jars with little ceremony. I saw them just before they went in, when they stopped in at Lil's and my place to kiss her goodbye and wish her well. + +Tom and I stood awkwardly to the side while Lil and her mother held an achingly chipper and polite farewell. + +“So,” I said to Tom. “Deadheading.” + +He cocked an eyebrow. “Yup. Took the backup this morning.” + +Before coming to see their daughter, they'd taken their backups. When they woke, this event—everything following the backup—would never have happened for them. + +God, they were bastards. + +“When are you coming back?” I asked, keeping my castmember face on, carefully hiding away the disgust. + +'We'll be sampling monthly, just getting a digest dumped to us. When things look interesting enough, we'll come on back.” He waggled a finger at me. “I'll be keeping an eye on you and Lillian—you treat her right, you hear?” + +“We're sure going to miss you two around here,” I said. + +He pishtoshed and said, “You won't even notice we're gone. This is your world now—we're just getting out of the way for a while, letting you-all take a run at it. We wouldn't be going down if we didn't have faith in you two.” + +Lil and her mom kissed one last time. Her mother was more affectionate than I'd ever seen her, even to the point of tearing up a little. Here in this moment of vanishing consciousness, she could be whomever she wanted, knowing that it wouldn't matter the next time she awoke. + +“Julius,” she said, taking my hands, squeezing them. “You've got some wonderful times ahead of you—between Lil and the Park, you're going to have a tremendous experience, I just know it.” She was infinitely serene and compassionate, and I knew it didn't count. + +Still smiling, they got into their runabout and drove away to get the lethal injections, to become disembodied consciousnesses, to lose their last moments with their darling daughter. + +They were not happy to be returned from the dead. Their new bodies were impossibly young, pubescent and hormonal and doleful and kitted out in the latest trendy styles. In the company of Kim and her pals, they made a solid mass of irate adolescence. + +“Just what the hell do you think you're doing?” Rita asked, shoving me hard in the chest. I stumbled back into my carefully scattered dust, raising a cloud. + +Rita came after me, but Tom held her back. “Julius, go away. Your actions are totally indefensible. Keep your mouth shut and go away.” + +I held up a hand, tried to wave away his words, opened my mouth to speak. + +“Don't say a word,” he said. “Leave. Now.” + +“/{Don't stay here and don't come back. Ever}/,” Kim said, an evil look on her face. + +“No,” I said. “No goddamn it no. You're going to hear me out, and then I'm going to get Lil and her people and they're going to back me up. That's not negotiable.” + +We stared at each other across the dim parlor. Debra made a twiddling motion and the lights came up full and harsh. The expertly crafted gloom went away and it was just a dusty room with a fake fireplace. + +“Let him speak,” Debra said. Rita folded her arms and glared. + +“I did some really awful things,” I said, keeping my head up, keeping my eyes on them. “I can't excuse them, and I don't ask you to forgive them. But that doesn't change the fact that we've put our hearts and souls into this place, and it's not right to take it from us. Can't we have one constant corner of the world, one bit frozen in time for the people who love it that way? Why does your success mean our failure? + +“Can't you see that we're carrying on your work? That we're tending a legacy you left us?” + +“Are you through?” Rita asked. + +I nodded. + +“This place is not a historical preserve, Julius, it's a ride. If you don't understand that, you're in the wrong place. It's not my goddamn fault that you decided that your stupidity was on my behalf, and it doesn't make it any less stupid. All you've done is confirm my worst fears.” + +Debra's mask of impartiality slipped. “You stupid, deluded asshole,” she said, softly. “You totter around, pissing and moaning about your little murder, your little health problems—yes, I've heard—your little fixation on keeping things the way they are. You need some perspective, Julius. You need to get away from here: Disney World isn't good for you and you're sure as hell not any good for Disney World.” + +It would have hurt less if I hadn't come to the same conclusion myself, somewhere along the way. + +I found the ad-hoc at a Fort Wilderness campsite, sitting around a fire and singing, necking, laughing. The victory party. I trudged into the circle and hunted for Lil. + +She was sitting on a log, staring into the fire, a million miles away. Lord, she was beautiful when she fretted. I stood in front of her for a minute and she stared right through me until I tapped her shoulder. She gave an involuntary squeak and then smiled at herself. + +“Lil,” I said, then stopped. /{Your parents are home, and they've joined the other side}/. + +For the first time in an age, she looked at me softly, smiled even. She patted the log next to her. I sat down, felt the heat of the fire on my face, her body heat on my side. God, how did I screw this up? + +Without warning, she put her arms around me and hugged me hard. I hugged her back, nose in her hair, woodsmoke smell and shampoo and sweat. “We did it,” she whispered fiercely. I held onto her. /{No, we didn't}/. + +“Lil,” I said again, and pulled away. + +“What?” she said, her eyes shining. She was stoned, I saw that now. + +“Your parents are back. They came to the Mansion.” + +She was confused, shrinking, and I pressed on. + +“They were with Debra.” + +She reeled back as if I'd slapped her. + +“I told them I'd bring the whole group back to talk it over.” + +She hung her head and her shoulders shook, and I tentatively put an arm around her. She shook it off and sat up. She was crying and laughing at the same time. “I'll have a ferry sent over,” she said. + +I sat in the back of the ferry with Dan, away from the confused and angry ad-hocs. I answered his questions with terse, one-word answers, and he gave up. We rode in silence, the trees on the edges of the Seven Seas Lagoon whipping back and forth in an approaching storm. + +The ad-hoc shortcutted through the west parking lot and moved through the quiet streets of Frontierland apprehensively, a funeral procession that stopped the nighttime custodial staff in their tracks. + +As we drew up on Liberty Square, I saw that the work-lights were blazing and a tremendous work-gang of Debra's ad-hocs were moving from the Hall to the Mansion, undoing our teardown of their work. + +Working alongside of them were Tom and Rita, Lil's parents, sleeves rolled up, forearms bulging with new, toned muscle. The group stopped in its tracks and Lil went to them, stumbling on the wooden sidewalk. + +I expected hugs. There were none. In their stead, parents and daughter stalked each other, shifting weight and posture to track each other, maintain a constant, sizing distance. + +“What the hell are you doing?” Lil said, finally. She didn't address her mother, which surprised me. It didn't surprise Tom, though. + +He dipped forward, the shuffle of his feet loud in the quiet night. “We're working,” he said. + +“No, you're not,” Lil said. “You're destroying. Stop it.” + +Lil's mother darted to her husband's side, not saying anything, just standing there. + +Wordlessly, Tom hefted the box he was holding and headed to the Mansion. Lil caught his arm and jerked it so he dropped his load. + +“You're not listening. The Mansion is /{ours}/. /{Stop}/. /{It}/.” + +Lil's mother gently took Lil's hand off Tom's arm, held it in her own. “I'm glad you're passionate about it, Lillian,” she said. “I'm proud of your commitment.” + +Even at a distance of ten yards, I heard Lil's choked sob, saw her collapse in on herself. Her mother took her in her arms, rocked her. I felt like a voyeur, but couldn't bring myself to turn away. + +“Shhh,” her mother said, a sibilant sound that matched the rustling of the leaves on the Liberty Tree. “Shhh. We don't have to be on the same side, you know.” + +They held the embrace and held it still. Lil straightened, then bent again and picked up her father's box, carried it to the Mansion. One at a time, the rest of her ad-hoc moved forward and joined them. + +This is how you hit bottom. You wake up in your friend's hotel room and you power up your handheld and it won't log on. You press the call-button for the elevator and it gives you an angry buzz in return. You take the stairs to the lobby and no one looks at you as they jostle past you. + +You become a non-person. + +Scared. I trembled when I ascended the stairs to Dan's room, when I knocked at his door, louder and harder than I meant, a panicked banging. + +Dan answered the door and I saw his eyes go to his HUD, back to me. “Jesus,” he said. + +I sat on the edge of my bed, head in my hands. + +“What?” I said, what happened, what happened to me? + +“You're out of the ad-hoc,” he said. “You're out of Whuffie. You're bottomed-out,” he said. + +This is how you hit bottom in Walt Disney World, in a hotel with the hissing of the monorail and the sun streaming through the window, the hooting of the steam engines on the railroad and the distant howl of the recorded wolves at the Haunted Mansion. The world drops away from you, recedes until you're nothing but a speck, a mote in blackness. + +I was hyperventilating, light-headed. Deliberately, I slowed my breath, put my head between my knees until the dizziness passed. + +“Take me to Lil,” I said. + +Driving together, hammering cigarette after cigarette into my face, I remembered the night Dan had come to Disney World, when I'd driven him to my—/{Lil's}/—house, and how happy I'd been then, how secure. + +I looked at Dan and he patted my hand. “Strange times,” he said. + +It was enough. We found Lil in an underground break-room, lightly dozing on a ratty sofa. Her head rested on Tom's lap, her feet on Rita's. All three snored softly. They'd had a long night. + +Dan shook Lil awake. She stretched out and opened her eyes, looked sleepily at me. The blood drained from her face. + +“Hello, Julius,” she said, coldly. + +Now Tom and Rita were awake, too. Lil sat up. + +“Were you going to tell me?” I asked, quietly. “Or were you just going to kick me out and let me find out on my own?” + +“You were my next stop,” Lil said. + +“Then I've saved you some time.” I pulled up a chair. “Tell me all about it.” + +“There's nothing to tell,” Rita snapped. “You're out. You had to know it was coming—for God's sake, you were tearing Liberty Square apart!” + +“How would you know?” I asked. I struggled to remain calm. “You've been asleep for ten years!” + +“We got updates,” Rita said. “That's why we're back—we couldn't let it go on the way it was. We owed it to Debra.” + +“And Lillian,” Tom said. + +“And Lillian,” Rita said, absently. + +Dan pulled up a chair of his own. “You're not being fair to him,” he said. At least someone was on my side. + +“We've been more than fair,” Lil said. “You know that better than anyone, Dan. We've forgiven and forgiven and forgiven, made every allowance. He's sick and he won't take the cure. There's nothing more we can do for him.” + +“You could be his friend,” Dan said. The light-headedness was back, and I slumped in my chair, tried to control my breathing, the panicked thumping of my heart. + +“You could try to understand, you could try to help him. You could stick with him, the way he stuck with you. You don't have to toss him out on his ass.” + +Lil had the good grace to look slightly shamed. “I'll get him a room,” she said. “For a month. In Kissimmee. A motel. I'll pick up his network access. Is that fair?” + +“It's more than fair,” Rita said. Why did she hate me so much? I'd been there for her daughter while she was away—ah. That might do it, all right. “I don't think it's warranted. If you want to take care of him, sir, you can. It's none of my family's business.” + +Lil's eyes blazed. “Let me handle this,” she said. “All right?” + +Rita stood up abruptly. “You do whatever you want,” she said, and stormed out of the room. + +“Why are you coming here for help?” Tom said, ever the voice of reason. “You seem capable enough.” + +“I'm going to be taking a lethal injection at the end of the week,” Dan said. “Three days. That's personal, but you asked.” + +Tom shook his head. /{Some friends you've got yourself}/, I could see him thinking it. + +“That soon?” Lil asked, a throb in her voice. + +Dan nodded. + +In a dreamlike buzz, I stood and wandered out into the utilidor, out through the western castmember parking, and away. + +I wandered along the cobbled, disused Walk Around the World, each flagstone engraved with the name of a family that had visited the Park a century before. The names whipped past me like epitaphs. + +The sun came up noon high as I rounded the bend of deserted beach between the Grand Floridian and the Polynesian. Lil and I had come here often, to watch the sunset from a hammock, arms around each other, the Park spread out before us like a lighted toy village. + +Now the beach was deserted, the Wedding Pavilion silent. I felt suddenly cold though I was sweating freely. So cold. + +Dreamlike, I walked into the lake, water filling my shoes, logging my pants, warm as blood, warm on my chest, on my chin, on my mouth, on my eyes. + +I opened my mouth and inhaled deeply, water filling my lungs, choking and warm. At first I sputtered, but I was in control now, and I inhaled again. The water shimmered over my eyes, and then was dark. + +I woke on Doctor Pete's cot in the Magic Kingdom, restraints around my wrists and ankles, a tube in my nose. I closed my eyes, for a moment believing that I'd been restored from a backup, problems solved, memories behind me. + +Sorrow knifed through me as I realized that Dan was probably dead by now, my memories of him gone forever. + +Gradually, I realized that I was thinking nonsensically. The fact that I remembered Dan meant that I hadn't been refreshed from my backup, that my broken brain was still there, churning along in unmediated isolation. + +I coughed again. My ribs ached and throbbed in counterpoint to my head. Dan took my hand. + +“You're a pain in the ass, you know that?” he said, smiling. + +“Sorry,” I choked. + +“You sure are,” he said. “Lucky for you they found you—another minute or two and I'd be burying you right now.” + +/{No}/, I thought, confused. /{They'd have restored me from backup}/. Then it hit me: I'd gone on record refusing restore from backup after having it recommended by a medical professional. No one would have restored me after that. I would have been truly and finally dead. I started to shiver. + +“Easy,” Dan said. “Easy. It's all right now. Doctor says you've got a cracked rib or two from the CPR, but there's no brain damage.” + +“No /{additional}/ brain damage,” Doctor Pete said, swimming into view. He had on his professionally calm bedside face, and it reassured me despite myself. + +He shooed Dan away and took his seat. Once Dan had left the room, he shone lights in my eyes and peeked in my ears, then sat back and considered me. “Well, Julius,” he said. “What exactly is the problem? We can get you a lethal injection if that's what you want, but offing yourself in the Seven Seas Lagoon just isn't good show. In the meantime, would you like to talk about it?” + +Part of me wanted to spit in his eye. I'd tried to talk about it and he'd told me to go to hell, and now he changes his mind? But I did want to talk. + +“I didn't want to die,” I said. + +“Oh no?” he said. “I think the evidence suggests the contrary.” + +“I wasn't trying to die,” I protested. “I was trying to—” What? I was trying to… /{abdicate}/. Take the refresh without choosing it, without shutting out the last year of my best friend's life. Rescue myself from the stinking pit I'd sunk into without flushing Dan away along with it. That's all, that's all. + +“I wasn't thinking—I was just acting. It was an episode or something. Does that mean I'm nuts?” + +“Oh, probably,” Doctor Pete said, offhandedly. “But let's worry about one thing at a time. You can die if you want to, that's your right. I'd rather you lived, if you want my opinion, and I doubt that I'm the only one, Whuffie be damned. If you're going to live, I'd like to record you saying so, just in case. We have a backup of you on file—I'd hate to have to delete it.” + +“Yes,” I said. “Yes, I'd like to be restored if there's no other option.” It was true. I didn't want to die. + +“All right then,” Doctor Pete said. “It's on file and I'm a happy man. Now, are you nuts? Probably. A little. Nothing a little counseling and some RandR wouldn't fix, if you want my opinion. I could find you somewhere if you want.” + +“Not yet,” I said. “I appreciate the offer, but there's something else I have to do first.” + +Dan took me back to the room and put me to bed with a transdermal soporific that knocked me out for the rest of the day. When I woke, the moon was over the Seven Seas Lagoon and the monorail was silent. + +I stood on the patio for a while, thinking about all the things this place had meant to me for more than a century: happiness, security, efficiency, fantasy. All of it gone. It was time I left. Maybe back to space, find Zed and see if I could make her happy again. Anywhere but here. Once Dan was dead—God, it was sinking in finally—I could catch a ride down to the Cape for a launch. + +“What's on your mind?” Dan asked from behind me, startling me. He was in his boxers, thin and rangy and hairy. + +“Thinking about moving on,” I said. + +He chuckled. “I've been thinking about doing the same,” he said. + +I smiled. “Not that way,” I said. “Just going somewhere else, starting over. Getting away from this.” + +“Going to take the refresh?” he asked. + +I looked away. “No,” I said. “I don't believe I will.” + +“It may be none of my business,” he said, “but why the fuck not? Jesus, Julius, what're you afraid of?” + +“You don't want to know,” I said. + +“I'll be the judge of that.” + +“Let's have a drink, first,” I said. + +Dan rolled his eyes back for a second, then said, “All right, two Coronas, coming up.” + +After the room-service bot had left, we cracked the beers and pulled chairs out onto the porch. + +“You sure you want to know this?” I asked. + +He tipped his bottle at me. “Sure as shootin',” he said. + +“I don't want refresh because it would mean losing the last year,” I said. + +He nodded. “By which you mean ‘my last year,’” he said. “Right?” + +I nodded and drank. + +“I thought it might be like that. Julius, you are many things, but hard to figure out you are not. I have something to say that might help you make the decision. If you want to hear it, that is.” + +What could he have to say? “Sure,” I said. “Sure.” In my mind, I was on a shuttle headed for orbit, away from all of this. + +“I had you killed,” he said. “Debra asked me to, and I set it up. You were right all along.” + +The shuttle exploded in silent, slow moving space, and I spun away from it. I opened and shut my mouth. + +It was Dan's turn to look away. “Debra proposed it. We were talking about the people I'd met when I was doing my missionary work, the stone crazies who I'd have to chase away after they'd rejoined the Bitchun Society. One of them, a girl from Cheyenne Mountain, she followed me down here, kept leaving me messages. I told Debra, and that's when she got the idea. + +“I'd get the girl to shoot you and disappear. Debra would give me Whuffie—piles of it, and her team would follow suit. I'd be months closer to my goal. That was all I could think about back then, you remember.” + +“I remember.” The smell of rejuve and desperation in our little cottage, and Dan plotting my death. + +“We planned it, then Debra had herself refreshed from a backup—no memory of the event, just the Whuffie for me.” + +“Yes,” I said. That would work. Plan a murder, kill yourself, have yourself refreshed from a backup made before the plan. How many times had Debra done terrible things and erased their memories that way? + +“Yes,” he agreed. “We did it, I'm ashamed to say. I can prove it, too—I have my backup, and I can get Jeanine to tell it, too.” He drained his beer. “That's my plan. Tomorrow. I'll tell Lil and her folks, Kim and her people, the whole ad-hoc. A going-away present from a shitty friend.” + +My throat was dry and tight. I drank more beer. “You knew all along,” I said. “You could have proved it at any time.” + +He nodded. “That's right.” + +“You let me…” I groped for the words. “You let me turn into…” They wouldn't come. + +“I did,” he said. + +All this time. Lil and he, standing on /{my}/ porch, telling me I needed help. Doctor Pete, telling me I needed refresh from backup, me saying no, no, no, not wanting to lose my last year with Dan. + +“I've done some pretty shitty things in my day,” he said. “This is the absolute worst. You helped me and I betrayed you. I'm sure glad I don't believe in God—that'd make what I'm going to do even scarier.” + +Dan was going to kill himself in two days' time. My friend and my murderer. “Dan,” I croaked. I couldn't make any sense of my mind. Dan, taking care of me, helping me, sticking up for me, carrying this horrible shame with him all along. Ready to die, wanting to go with a clean conscience. + +“You're forgiven,” I said. And it was true. + +He stood. + +“Where are you going” I asked. + +“To find Jeanine, the one who pulled the trigger. I'll meet you at the Hall of Presidents at nine a.m..” + +I went in through the Main Gate, not a castmember any longer, a Guest with barely enough Whuffie to scrape in, use the water fountains and stand in line. If I were lucky, a castmember might spare me a chocolate banana. Probably not, though. + +I stood in the line for the Hall of Presidents. Other guests checked my Whuffie, then averted their eyes. Even the children. A year before, they'd have been striking up conversations, asking me about my job here at the Magic Kingdom. + +I sat in my seat at the Hall of Presidents, watching the short film with the rest, sitting patiently while they rocked in their seats under the blast of the flash-bake. A castmember picked up the stageside mic and thanked everyone for coming; the doors swung open and the Hall was empty, except for me. The castmember narrowed her eyes at me, then recognizing me, turned her back and went to show in the next group. + +No group came. Instead, Dan and the girl I'd seen on the replay entered. + +“We've closed it down for the morning,” he said. + +I was staring at the girl, seeing her smirk as she pulled the trigger on me, seeing her now with a contrite, scared expression. She was terrified of me. + +“You must be Jeanine,” I said. I stood and shook her hand. “I'm Julius.” + +Her hand was cold, and she took it back and wiped it on her pants. + +My castmember instincts took over. “Please, have a seat. Don't worry, it'll all be fine. Really. No hard feelings.” I stopped short of offering to get her a glass of water. + +/{Put her at her ease}/, said a snotty voice in my head. /{She'll make a better witness. Or make her nervous, pathetic—that'll work, too; make Debra look even worse}/. + +I told the voice to shut up and got her a cup of water. + +By the time I came back, the whole gang was there. Debra, Lil, her folks, Tim. Debra's gang and Lil's gang, now one united team. Soon to be scattered. + +Dan took the stage, used the stageside mic to broadcast his voice. “Eleven months ago, I did an awful thing. I plotted with Debra to have Julius murdered. I used a friend who was a little confused at the time, used her to pull the trigger. It was Debra's idea that having Julius killed would cause enough confusion that she could take over the Hall of Presidents. It was.” + +There was a roar of conversation. I looked at Debra, saw that she was sitting calmly, as though Dan had just accused her of sneaking an extra helping of dessert. Lil's parents, to either side of her, were less sanguine. Tom's jaw was set and angry, Rita was speaking angrily to Debra. Hickory Jackson in the old Hall used to say, /{I will hang the first man I can lay hands on from the first tree I can find}/. + +“Debra had herself refreshed from backup after we planned it,” Dan went on, as though no one was talking. “I was supposed to do the same, but I didn't. I have a backup in my public directory—anyone can examine it. Right now, I'd like to bring Jeanine up, she's got a few words she'd like to say.” + +I helped Jeanine take the stage. She was still trembling, and the ad-hocs were an insensate babble of recriminations. Despite myself, I was enjoying it. + +“Hello,” Jeanine said softly. She had a lovely voice, a lovely face. I wondered if we could be friends when it was all over. She probably didn't care much about Whuffie, one way or another. + +The discussion went on. Dan took the mic from her and said, “Please! Can we have a little respect for our visitor? Please? People?” + +Gradually, the din decreased. Dan passed the mic back to Jeanine. “Hello,” she said again, and flinched from the sound of her voice in the Hall's PA. “My name is Jeanine. I'm the one who killed Julius, a year ago. Dan asked me to, and I did it. I didn't ask why. I trusted—trust—him. He told me that Julius would make a backup a few minutes before I shot him, and that he could get me out of the Park without getting caught. I'm very sorry.” There was something off-kilter about her, some stilt to her stance and words that let you know she wasn't all there. Growing up in a mountain might do that to you. I snuck a look at Lil, whose lips were pressed together. Growing up in a theme park might do that to you, too. + +“Thank you, Jeanine,” Dan said, taking back the mic. “You can have a seat now. I've said everything I need to say—Julius and I have had our own discussions in private. If there's anyone else who'd like to speak—” + +The words were barely out of his mouth before the crowd erupted again in words and waving hands. Beside me, Jeanine flinched. I took her hand and shouted in her ear: “Have you ever been on the Pirates of the Carribean?” + +She shook her head. + +I stood up and pulled her to her feet. “You'll love it,” I said, and led her out of the Hall. + +1~ CHAPTER 10 + +I booked us ringside seats at the Polynesian Luau, riding high on a fresh round of sympathy Whuffie, and Dan and I drank a dozen lapu-lapus in hollowed-out pineapples before giving up on the idea of getting drunk. + +Jeanine watched the fire-dances and the torch-lighting with eyes like saucers, and picked daintily at her spare ribs with one hand, never averting her attention from the floor show. When they danced the fast hula, her eyes jiggled. I chuckled. + +From where we sat, I could see the spot where I'd waded into the Seven Seas Lagoon and breathed in the blood-temp water, I could see Cinderella's Castle, across the lagoon, I could see the monorails and the ferries and the busses making their busy way through the Park, shuttling teeming masses of guests from place to place. Dan toasted me with his pineapple and I toasted him back, drank it dry and belched in satisfaction. + +Full belly, good friends, and the sunset behind a troupe of tawny, half-naked hula dancers. Who needs the Bitchun Society, anyway? + +When it was over, we watched the fireworks from the beach, my toes dug into the clean white sand. Dan slipped his hand into my left hand, and Jeanine took my right. When the sky darkened and the lighted barges puttered away through the night, we three sat in the hammock. + +I looked out over the Seven Seas Lagoon and realized that this was my last night, ever, in Walt Disney World. It was time to reboot again, start afresh. That's what the Park was for, only somehow, this visit, I'd gotten stuck. Dan had unstuck me. + +The talk turned to Dan's impending death. + +“So, tell me what you think of this,” he said, hauling away on a glowing cigarette. + +“Shoot,” I said. + +“I'm thinking—why take lethal injection? I mean, I may be done here for now, but why should I make an irreversible decision?” + +“Why did you want to before?” I asked. + +“Oh, it was the macho thing, I guess. The finality and all. But hell, I don't have to prove anything, right?” + +“Sure,” I said, magnanimously. + +“So,” he said, thoughtfully. “The question I'm asking is, how long can I deadhead for? There are folks who go down for a thousand years, ten thousand, right?” + +“So, you're thinking, what, a million?” I joked. + +He laughed. “A /{million}/? You're thinking too small, son. Try this on for size: the heat death of the universe.” + +“The heat death of the universe,” I repeated. + +“Sure,” he drawled, and I sensed his grin in the dark. “Ten to the hundred years or so. The Stelliferous Period—it's when all the black holes have run dry and things get, you know, stupendously dull. Cold, too. So I'm thinking—why not leave a wake-up call for some time around then?” + +“Sounds unpleasant to me,” I said. “Brrrr.” + +“Not at all! I figure, self-repairing nano-based canopic jar, mass enough to feed it—say, a trillion-ton asteroid—and a lot of solitude when the time comes around. I'll poke my head in every century or so, just to see what's what, but if nothing really stupendous crops up, I'll take the long ride out. The final frontier.” + +“That's pretty cool,” Jeanine said. + +“Thanks,” Dan said. + +“You're not kidding, are you?” I asked. + +“Nope, I sure ain't,” he said. + +They didn't invite me back into the ad-hoc, even after Debra left in Whuffie-penury and they started to put the Mansion back the way it was. Tim called me to say that with enough support from Imagineering, they thought they could get it up and running in a week. Suneep was ready to kill someone, I swear. /{A house divided against itself can}/ not /{stand}/, as Mr. Lincoln used to say at the Hall of Presidents. + +I packed three changes of clothes and a toothbrush in my shoulderbag and checked out of my suite at the Polynesian at ten a.m., then met Jeanine and Dan at the valet parking out front. Dan had a runabout he'd picked up with my Whuffie, and I piled in with Jeanine in the middle. We played old Beatles tunes on the stereo all the long way to Cape Canaveral. Our shuttle lifted at noon. + +The shuttle docked four hours later, but by the time we'd been through decontam and orientation, it was suppertime. Dan, nearly as Whuffie-poor as Debra after his confession, nevertheless treated us to a meal in the big bubble, squeeze-tubes of heady booze and steaky paste, and we watched the universe get colder for a while. + +There were a couple guys jamming, tethered to a guitar and a set of tubs, and they weren't half bad. + +Jeanine was uncomfortable hanging there naked. She'd gone to space with her folks after Dan had left the mountain, but it was in a long-haul generation ship. She'd abandoned it after a year or two and deadheaded back to Earth in a support-pod. She'd get used to life in space after a while. Or she wouldn't. + +“Well,” Dan said. + +“Yup,” I said, aping his laconic drawl. He smiled. + +“It's that time,” he said. + +Spheres of saline tears formed in Jeanine's eyes, and I brushed them away, setting them adrift in the bubble. I'd developed some real tender, brother-sister type feelings for her since I'd watched her saucer-eye her way through the Magic Kingdom. No romance—not for me, thanks! But camaraderie and a sense of responsibility. + +“See you in ten to the hundred,” Dan said, and headed to the airlock. I started after him, but Jeanine caught my hand. + +“He hates long good-byes,” she said. + +“I know,” I said, and watched him go. + +The universe gets older. So do I. So does my backup, sitting in redundant distributed storage dirtside, ready for the day that space or age or stupidity kills me. It recedes with the years, and I write out my life longhand, a letter to the me that I'll be when it's restored into a clone somewhere, somewhen. It's important that whoever I am then knows about this year, and it's going to take a lot of tries for me to get it right. + +In the meantime, I'm working on another symphony, one with a little bit of “Grim Grinning Ghosts,” and a nod to “It's a Small World After All,” and especially “There's a Great Big Beautiful Tomorrow.” + +Jeanine says it's pretty good, but what does she know? She's barely fifty. + +We've both got a lot of living to do before we know what's what. + +1~acknowledgements Acknowledgements: + +I could never have written this book without the personal support of my friends and family, especially Roz Doctorow, Gord Doctorow and Neil Doctorow, Amanda Foubister, Steve Samenski, Pat York, Grad Conn, John Henson, John Rose, the writers at the Cecil Street Irregulars and Mark Frauenfelder. + +I owe a great debt to the writers and editors who mentored and encouraged me: James Patrick Kelly, Judith Merril, Damon Knight, Martha Soukup, Scott Edelman, Gardner Dozois, Renee Wilmeth, Teresa Nielsen Hayden, Claire Eddy, Bob Parks and Robert Killheffer. + +I am also indebted to my editor Patrick Nielsen Hayden and my agent Donald Maass, who believed in this book and helped me bring it to fruition. + +Finally, I must thank the readers, the geeks and the Imagineers who inspired this book. + +Cory Doctorow + +San Francisco + +September 2002 + +1~note-2004 A note about this book, February 12, 2004: + +As you will see, when you read the text beneath this section, I released this book a little over a year ago under the terms of a Creative Commons license that allowed my readers to freely redistribute the text without needing any further permission from me. In this fashion, I enlisted my readers in the service of a grand experiment, to see how my book could find its way into cultural relevance and commercial success. The experiment worked out very satisfactorily. + +When I originally licensed the book under the terms set out in the next section, I did so in the most conservative fashion possible, using CC's most restrictive license. I wanted to dip my toe in before taking a plunge. I wanted to see if the sky would fall: you see writers are routinely schooled by their peers that maximal copyright is the only thing that stands between us and penury, and so ingrained was this lesson in me that even though I had the intellectual intuition that a "some rights reserved" regime would serve me well, I still couldn't shake the atavistic fear that I was about to do something very foolish indeed. + +It wasn't foolish. I've since released a short story collection ( { A Place So Foreign and Eight More }http://craphound.com/place and a second novel ( { Eastern Standard Tribe }http://craphound.com/est ) in this fashion, and my career is turning over like a goddamned locomotive engine. I am thrilled beyond words (an extraordinary circumstance for a writer!) at the way that this has all worked out. + +And so /{now}/ I'm going to take a little bit of a plunge. Today, in coincidence with my talk at the O'Reilly Emerging Technology Conference ( { Ebooks: Neither E, Nor Books }http://conferences.oreillynet.com/cs/et2004/view/e_sess/4693 ). + +I am re-licensing this book under a far less restrictive Creative Commons license, the Attribution-NonCommercial-ShareAlike license. This is a license that allows you, the reader, to noncommercially "remix" this book -- you have my blessing to make your own translations, radio and film adaptations, sequels, fan fiction, missing chapters, machine remixes, you name it. A number of you assumed that you had my blessing to do this in the first place, and I can't say that I've been at all put out by the delightful and creative derivative works created from this book, but now you have my explicit blessing, and I hope you'll use it. + +Here's the license in summary: + +http://creativecommons.org/licenses/by-nc-sa/1.0/ + +You are free: + +_1 * to copy, distribute, display, and perform the work + +_1 * to make derivative works + +Under the following conditions: + +_1 Attribution. You must give the original author credit. + +_1 Noncommercial. You may not use this work for commercial purposes. + +_1 Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one. + +_1 * For any reuse or distribution, you must make clear to others the license terms of this work. + +_1 * Any of these conditions can be waived if you get permission from the author. 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There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You. + +1~note-2003 A note about this book, January 9, 2003: + +“Down and Out in the Magic Kingdom” is my first novel. It's an actual, no-foolin' words-on-paper book, published by the good people at Tor Books in New York City. You can buy this book in stores or online, by following links like this one: + +http://www.amazon.com/exec/obidos/ASIN/0765304368/downandoutint-20 + +So, what's with this file? Good question. + +I'm releasing the entire text of this book as a free, freely redistributable e-book. You can download it, put it on a P2P net, put it on your site, email it to a friend, and, if you're addicted to dead trees, you can even print it. + +Why am I doing this thing? Well, it's a long story, but to shorten it up: first-time novelists have a tough row to hoe. Our publishers don't have a lot of promotional budget to throw at unknown factors like us. Mostly, we rise and fall based on word-of-mouth. I'm not bad at word-of-mouth. I have a blog, Boing Boing ( http://boingboing.net ), where I do a /{lot}/ of word-of-mouthing. I compulsively tell friends and strangers about things that I like. + +And telling people about stuff I like is /{way}/, /{way}/ easier if I can just send it to 'em. Way easier. + +What's more, P2P nets kick all kinds of ass. Most of the books, music and movies ever released are not available for sale, anywhere in the world. In the brief time that P2P nets have flourished, the ad-hoc masses of the Internet have managed to put just about /{everything}/ online. What's more, they've done it for cheaper than any other archiving/revival effort ever. I'm a stone infovore and this kinda Internet mishegas gives me a serious frisson of futurosity. + +Yeah, there are legal problems. Yeah, it's hard to figure out how people are gonna make money doing it. Yeah, there is a lot of social upheaval and a serious threat to innovation, freedom, business, and whatnot. It's your basic end-of-the-world-as-we-know-it scenario, and as a science fiction writer, end-of-the-world-as-we-know-it scenaria are my stock-in-trade. + +I'm especially grateful to my publisher, Tor Books ( http://www.tor.com/ ) and my editor, Patrick Nielsen Hayden ( http://nielsenhayden.com/electrolite ) for being hep enough to let me try out this experiment. + +All that said, here's the deal: I'm releasing this book under a license developed by the Creative Commons project ( http://creativecommons.org/ ). This is a project that lets people like me roll our own license agreements for the distribution of our creative work under terms similar to those employed by the Free/Open Source Software movement. It's a great project, and I'm proud to be a part of it. + +Here's a summary of the license: + +http://creativecommons.org/licenses/by-nd-nc/1.0 + +_* Attribution. The licensor permits others to copy, distribute, display, and perform the work. In return, licensees must give the original author credit. + +_* No Derivative Works. The licensor permits others to copy, distribute, display and perform only unaltered copies of the work—not derivative works based on it. + +_* Noncommercial. The licensor permits others to copy, distribute, display, and perform the work. 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This License may not be modified without the mutual written agreement of the Licensor and You. + + +1~bio About the author: + +Cory Doctorow is Outreach Coordinator for the Electronic Frontier Foundation, www.eff.org, and maintains a personal site at www.craphound.com. He is the co-editor of the popular weblog Boing Boing at www.boingboing.net, with more than 250,000 visitors a month. He won the John W. Campbell Award for Best New Writer at the 2000 Hugo Awards. Born and raised in Toronto, he now lives in San Francisco. He enjoys using Google to look up interesting facts about long walks on the beach. + +1~other_works Other books by Cory Doctorow: + +/{A Place So Foreign and Eight More}/ + +– short story collection, forthcoming from Four Walls Eight Windows in fall 2003, with an introduction by Bruce Sterling + +/{Essential Blogging}/, O'Reilly and Associates, 2002 + +– with Rael Dornfest, J. Scott Johnson, Shelley Powers, Benjamin Trott and Mena G. Trott + +/{The Complete Idiot's Guide to Publishing Science Fiction}/, Alpha Books, 2000 + +– co-written with Karl Schroeder + +% ? compare earlier version + +_1 If I am not for myself, who will be for me? If I am only for myself, what am I? If not now, when?~{ See http://www.gnu.org/gnu/the-gnu-project.html. Stallman adds his own footnote to this statement, writing, "As an Atheist, I don't follow any religious leaders, but I sometimes find I admire something one of them has said. }~ + +Speaking to audiences, Stallman avoids the religious route and ex-presses the decision in pragmatic terms. "I asked myself: what could I, an operating-system developer, do to improve the situation? It wasn't until I examined the question for a while that I realized an operating-system developer was exactly what was needed to solve the problem." + +Once he recognized that, Stallman says, everything else "fell into place." In 1983, MIT was acquiring second-generation Lisp Machines from Symbolics, on which the MIT Lisp Machine system could not possibly run. Once most of the MIT machines were replaced, he would be unable to continue maintaining that system effectively for lack of users' bug reports. He would have to stop. But he also wanted to stop. The MIT Lisp Machine system was not free software: even though users could get the source code, they could not redistribute it freely. Meanwhile, the goal of continuing the MIT system had already been achieved: LMI had survived and was developing software on its own. + +Stallman didn't want to spend his whole life punishing those who had destroyed his old community. He wanted to build a new one. He decided to denounce software that would require him to compromise his ethical beliefs, and devote his life to the creation of programs that would make it easier for him and others to escape from it. Pledging to build a free software operating system "or die trying - of old age, of course," Stallman quips, he resigned from the MIT staff in January, 1984, to build GNU. + +The resignation distanced Stallman's work from the legal auspices of MIT. Still, Stallman had enough friends and allies within the AI Lab to continue using the facilities, and later his own office. He also had the ability to secure outside consulting gigs to underwrite the early stages of the GNU Project. In resigning from MIT, however, Stallman negated any debate about conflict of interest or Institute ownership of the software. The man whose early adulthood fear of social isolation had driven him deeper and deeper into the AI Lab's embrace was now building a legal firewall between himself and that environment. +={GNU Project} + +For the first few months, Stallman operated in isolation from the Unix community as well. Although his announcement to the net.unix-wizards group had attracted sympathetic responses, few volunteers signed on to join the crusade in its early stages. +={net.unix-wizards newsgroup} + +"The community reaction was pretty much uniform," recalls Rich Morin, leader of a Unix user group at the time. "People said, 'Oh, that's a great idea. Show us your code. Show us it can be done.'" + +Aware that the job was enormous, Stallman decided to try to reuse existing free software wherever possible. So he began looking for existing free programs and tools that could be converted into GNU programs and tools. One of the first candidates was a compiler named VUCK, which converted programs written in the popular C programming language into machine-runnable code. Translated from the Dutch, the program's acronym stood for the Free University Compiler Kit. Optimistic, Stallman asked the program's author if the program was free. When the author informed him that the words "Free University" were a reference to the Vrije Universiteit in Amsterdam, and that the program was not free, Stallman was chagrined. + +"He responded derisively, stating that the university was free but the compiler was not," recalls Stallman. He had not only refused to help - he suggested Stallman drop his plan to develop GNU, and instead write some add-ons to boost sales of VUCK, in return for a share of the profits. "I therefore decided that my first program for the GNU Project would be a multi-language, multi-platform compiler." +19~{ See Richard Stallman, "The GNU Operating System and the Free Software Movement," Open Sources (O'Reilly & Associates, Inc., 1999): 65. }~ + +Instead of VUCK, Stallman found the Pastel compiler ("off-color Pascal"), written by programmers at Lawrence Livermore National Lab. According to what they said when they gave him a copy, the compiler was free to copy and modify. Unfortunately, the program was unsuitable for the job, because its memory requirements were enormous. It parsed the entire input file in core memory, then retained all the internal data until it finished compiling the file. On mainframe systems this design had been forgivable. On Unix systems it was a crippling barrier, since even 32-bit machines that ran Unix were often unable to provide so much memory to a program. Stallman made substantial progress at first, building a C-compatible front end to the compiler and testing it on the larger Vax, whose system could handle large memory spaces. When he tried porting the system to the 68010, and investigated why it crashed, he discovered the memory size problem, and concluded he would have to build a totally new compiler from scratch. Stallman eventually did this, producing the GNU C Compiler or GCC. But it was not clear in 1984 what to do about the compiler, so he decided to let those plans gel while turning his attention to other parts of GNU. +={C programming language:VUCK compiler for;VUCK compiler} + +In September of 1984, thus, Stallman began development of a GNU version of Emacs, the replacement for the program he had been supervising for a decade. Within the Unix community, the two native editor programs were vi, written by Sun Microsystems co-founder Bill Joy, and ed, written by Bell Labs scientist (and Unix co-creator) Ken Thompson. Both were useful and popular, but neither offered the endlessly expandable nature of Emacs. +={Bell Labs;Emacs text editor:rewriting for Unix+2;GNU Emacs:rewriting for Unix+2;Joy, Bill;vi text editor;Thompson, Ken} + +Looking back, Stallman says he didn't view the decision in strategic terms. "I wanted an Emacs, and I had a good opportunity to develop one." + +Once again, Stallman had found existing code with which he hoped to save time. In writing a Unix version of Emacs, Stallman was soon following the footsteps of Carnegie Mellon graduate student James Gosling, author of a C-based version dubbed Gosling Emacs or Gosmacs. Gosling's version of Emacs included an interpreter for a simplified offshoot of the Lisp language, called Mocklisp. Although Gosling had put Gosmacs under copyright and had sold the rights to UniPress, a privately held software company, Stallman received the assurances of a fellow developer who had participated in early Gosmacs development. According to the developer, Gosling, while a Ph.D. student at Carnegie Mellon, had given him permission by email to distribute his own version of Gosmacs in exchange for his contribution to the code. +={Carnegie Mellon University;Gosling, James+3;GOSMACS (Gosling Emacs);interpreters for LISP+1;LISP programming language:EMACS and+1;MOCKLISP language;UniPress software company+1} + +At first Stallman thought he would change only the user-level commands, to implement full compatibility with the original PDP-10Emacs. However, when he found how weak Mocklisp was in comparison with real Lisp, he felt compelled to replace it with a true Lisp system. This made it natural to rewrite most of the higher-level code of Gosmacs in a completely different way, taking advantage of the greater power and flexible data structures of Lisp. By mid-1985, in GNU Emacs as released on the Internet, only a few files still had code remaining from Gosmacs. + +Then UniPress caught wind of Stallman's project, and denied that the other developer had received permission to distribute his own version of Gosmacs. He could not find a copy of the old email to defend his claim. Stallman eliminated this problem by writing replacements for the few modules that remained from Gosmacs. + +Nevertheless, the notion of developers selling off software rights - indeed, the very notion of developers having such powers to sell in the first place - rankled Stallman. In a 1986 speech at the Swedish Royal Technical Institute, Stallman cited the UniPress incident as yet another example of the dangers associated with proprietary software. +={proprietary software:Emacs and+4;Swedish Royal Technical Institute} + +"Sometimes I think that perhaps one of the best things I could do with my life is find a gigantic pile of proprietary software that was a trade secret, and start handing out copies on a street corner so it wouldn't be a trade secret any more," said Stallman. "Perhaps that would be a much more efficient way for me to give people new free software than actually writing it myself; but everyone is too cowardly to even take it."~{ See Richard Stallman (1986). }~ + +Despite the stress it generated, the dispute over Gosling's code would assist both Stallman and the free software movement in the longterm. It would force Stallman to address the weaknesses of the Emacs Commune and the informal trust system that had allowed problematic offshoots to emerge. It would also force Stallman to sharpen the free software movement's political objectives. Following the release of GNU Emacs in 1985, Stallman issued /{The GNU Manifesto}/, an expansion of the original announcement posted in September, 1983. Stallman included within the document a lengthy section devoted to the many arguments used by commercial and academic programmers to justify the proliferation of proprietary software programs. One argument, "Don't programmers deserve a reward for their creativity," earned a response encapsulating Stallman's anger over the recent Gosling Emacs episode: +={Emacs Commune:proprietary software and;Emacs text editor;GNU Emacs;GNU Manifesto} + +"If anything deserves a reward, it is social contribution," Stallman wrote. "Creativity can be a social contribution, but only in so far [ sic ] as society is free to use the results. If programmers deserve to be rewarded for creating innovative programs, by the same token they deserve to be punished if they restrict the use of these programs."~{ See Richard Stallman, The GNU Manifesto (1985), \\ http://www.gnu.org/gnu/ manifesto.html. }~ + +With the release of GNU Emacs, the GNU Project finally had code to show. It also had the burdens of any software-based enterprise. As more and more Unix developers began playing with the software, money, gifts, and requests for tapes began to pour in. To address the business side of the GNU Project, Stallman drafted a few of his colleagues and formed the Free Software Foundation (FSF), a non-profit organization dedicated to speeding the GNU Project towards its goal. With Stallman as president and various friends and hacker allies as board members, the FSF helped provide a corporate face for the GNU Project. +={Free Software Foundation (FSF):GNU Project and;GNU Project:Emacs, release of} + +Robert Chassell, a programmer then working at Lisp Machines, Inc., became one of five charter board members at the Free Software Foundation following a dinner conversation with Stallman. Chassell also served as the organization's treasurer, a role that started small but quickly grew. +={Chassell, Robert+6;LISP Machines Inc. (LMI);LMI (LISP Machines Inc.)} + +"I think in '85 our total expenses and revenue were something in the order of $23,000, give or take," Chassell recalls. "Richard had his office, and we borrowed space. I put all the stuff, especially the tapes, under my desk. It wasn't until sometime later LMI loaned us some space where we could store tapes and things of that sort." + +In addition to providing a face, the Free Software Foundation provided a center of gravity for other disenchanted programmers. The Unix market that had seemed so collegial even at the time of Stallman's initial GNU announcement was becoming increasingly competitive. In an attempt to tighten their hold on customers, companies were starting to deny users access to Unix source code, a trend that only speeded the number of inquiries into ongoing GNU software projects. + +The Unix wizards who once regarded Stallman as a noisy kook were now beginning to see him as a software prophet or a software Cassandra, according as they felt hope or despair over escaping the problem she identified. + +"A lot of people don't realize, until they've had it happen to them, how frustrating it can be to spend a few years working on a software program only to have it taken away," says Chassell, summarizing the feelings and opinions of the correspondents writing in to the FSF during the early years. "After that happens a couple of times, you start to say to yourself, 'Hey, wait a minute.'" + +For Chassell, the decision to participate in the Free Software Foundation came down to his own personal feelings of loss. Prior to LMI, Chassell had been working for hire, writing an introductory book on Unix for Cadmus, Inc., a Cambridge-area software company. When Cadmus folded, taking the rights to the book down with it, Chassell says he attempted to buy the rights back with no success. + +"As far as I know, that book is still sitting on a shelf somewhere, unusable, uncopyable, just taken out of the system," Chassell says. "It was quite a good introduction if I may say so myself. It would have taken maybe three or four months to convert [the book] into a perfectly usable introduction to GNU/Linux today. The whole experience, aside from what I have in my memory, was lost." + +Forced to watch his work sink into the mire while his erstwhile employer struggled through bankruptcy, Chassell says he felt a hint of the anger that drove Stallman to fits of apoplexy. "The main clarity, for me, was the sense that if you want to have a decent life, you don't want to have bits of it closed off," Chassell says. "This whole idea of having the freedom to go in and to fix something and modify it, whatever it may be, it really makes a difference. It makes one think happily that after you've lived a few years that what you've done is worthwhile. Because otherwise it just gets taken away and thrown out or abandoned or, at the very least, you no longer have any relation to it. It's like losing a bit of your life." + +1~ Chapter 8 - St. Ignucius +={Ignucius, (St.);St. Ignucius} + +The Maui High Performance Computing Center is located in a single-story building in the dusty red hills just above the town of Kihei. Framed by million-dollar views and the multi-million dollar real estate of the Silversword Golf Course, the center seems like the ultimate scientific boondoggle. Far from the boxy, sterile confines of Tech Square or even the sprawling research metropolises of Argonne, Illinois and Los Alamos, New Mexico, the MHPCC seems like the kind of place where scientists spend more time on their tans than their post-doctoral research projects. +={Argonne (Illinois);Los Alamos (New Mexico);Maui High Performance Computing Center (MHPCC);MHPCC (Maui High Performance Computing Center)} + +The image is only half true. Although researchers at the MHPCC do take advantage of the local recreational opportunities, they also take their work seriously. According to { Top500.org }http://top500.org, a web site that tracks the most powerful supercomputers in the world, the IBMSP Power3 supercomputer housed within the MHPCC clocks in at 837 billion floating-point operations per second, making it one of 25most powerful computers in the world. Co-owned and operated by the University of Hawaii and the U.S. Air Force, the machine divides its computer cycles between the number crunching tasks associated with military logistics and high-temperature physics research. +={IBM SP Power3 supercomputer;U.S Air Force;University of Hawaii;Top500.org} + +Simply put, the MHPCC is a unique place, a place where the brainy culture of science and engineering and the laid-back culture of the Hawaiian islands coexist in peaceful equilibrium. A slogan on the lab's 2000 web site sums it up: "Computing in paradise." + +It's not exactly the kind of place you'd expect to find Richard Stallman, a man who, when taking in the beautiful view of the nearby Maui Channel through the picture windows of a staffer's office, mutters a terse critique: "Too much sun." Still, as an emissary from one computing paradise to another, Stallman has a message to deliver, even if it means subjecting his hacker eyes to painful solar glare. + +The conference room is already full by the time I arrive to catch Stallman's speech. The gender breakdown is a little better than at the New York speech, 85% male, 15% female, but not by much. About half of the audience members wear khaki pants and logo-encrusted golf shirts. The other half seems to have gone native. Dressed in the gaudy flower-print shirts so popular in this corner of the world, their faces area deep shade of ochre. The only residual indication of geek status are the gadgets: Nokia cell phones, Palm Pilots, and Sony VAIO laptops. + +Needless to say, Stallman, who stands in front of the room dressed in plain blue T-shirt, brown polyester slacks, and white socks, sticks out like a sore thumb. The fluorescent lights of the conference room help bring out the unhealthy color of his sun-starved skin.~{ RMS: The idea that skin can be "sun-starved" or that paleness is "unhealthy"is dangerous misinformation; staying out of the sun can't hurt you as long as you have enough Vitamin D. What damages the skin, and can even kill you, is excessive exposure to sunlight. }~ His beard and hair are enough to trigger beads of sweat on even the coolest Hawaiian neck. Short of having the words "mainlander" tattooed on his forehead, Stallman couldn't look more alien if he tried. [RMS: Is there something bad about looking different from others?] + +As Stallman putters around the front of the room, a few audience members wearing T-shirts with the logo of the Maui FreeBSD Users Group (MFUG) race to set up camera and audio equipment. FreeBSD, a free software offshoot of the Berkeley Software Distribution, the venerable 1970s academic version of Unix, is technically a competitor to the GNU/Linux operating system. Still, in the hacking world, Stallman speeches are documented with a fervor reminiscent of the Grateful Dead and its legendary army of amateur archivists. As the local free software heads, it's up to the MFUG members to make sure fellow programmers in Hamburg, Mumbai, and Novosibirsk don't miss out on the latest pearls of RMS wisdom. +={Berkely Software Distribution (BSD);BSD (Berkely Software Distribution);Grateful Dead, The+1;Maui FreeBSD Users Group} + +The analogy to the Grateful Dead is apt. Often, when describing the business opportunities inherent within the free software model, Stallman has held up the Grateful Dead as an example. In refusing to restrict fans' ability to record live concerts, the Grateful Dead became more than a rock group. They became the center of a tribal community dedicated to Grateful Dead music. Over time, that tribal community became so large and so devoted that the band shunned record contracts and supported itself solely through musical tours and live appearances. In 1994, the band's last year as a touring act, the Grateful Dead drew $52 million in gate receipts alone.~{ See "Grateful Dead Time Capsule: 1985-1995 North American Tour Grosses," \\ http://www.dead101.com/1197.htm. }~ + +While few software companies have been able to match that success, the tribal aspect of the free software community is one reason many in the latter half of the 1990s started to accept the notion that publishing software source code might be a good thing. Hoping to build their own loyal followings, companies such as IBM, Sun Microsystems, and Hewlett Packard have come to accept the letter, if not the spirit, of the Stallman free software message. Describing the GPL as the information-technology industry's /{Magna Carta}/, ZDNet software columnist Evan Leibovitch sees the growing affection for all things GNU as more than just a trend. "This societal shift is letting users take back control of their futures," Leibovitch writes. "Just as the /{Magna Carta}/ gave rights to British subjects, the GPL enforces consumer rights and freedoms on behalf of the users of computer software."~{ See Evan Leibovitch, "Who's Afraid of Big Bad Wolves," /{ZDNet}/ Tech Update (December 15, 2000), \\ http://www.zdnet.com/news/whos-afraid-of-the-big-bad-wolves/298394. }~ +={Hewlett Packard;IBM;Sun Microsystems} + +The tribal aspect of the free software community also helps explain why 40-odd programmers, who might otherwise be working on physics projects or surfing the Web for windsurfing buoy reports, have packed into a conference room to hear Stallman speak. + +Unlike the New York speech, Stallman gets no introduction. He also offers no self-introduction. When the FreeBSD people finally get their equipment up and running, Stallman simply steps forward, starts speaking, and steamrolls over every other voice in the room. +={FreeBSD} + +"Most of the time when people consider the question of what rules society should have for using software, the people considering it are from software companies, and they consider the question from a self-serving perspective," says Stallman, opening his speech. "What rules can we impose on everybody else so they have to pay us lots of money? I had the good fortune in the 1970s to be part of a community of programmers who shared software. And because of this I always like to look at the same issue from a different direction to ask: what kind of rules make possible a good society that is good for the people who are in it? And therefore I reach completely different answers." + +Once again, Stallman quickly segues into the parable of the Xerox laser printer, taking a moment to deliver the same dramatic finger-pointing gestures to the crowd. He also devotes a minute or two to the GNU/Linux name. + +"Some people say to me, 'Why make such a fuss about getting credit for this system? After all, the important thing is the job is done, not whether you get recognition for it.' Well, this would be wise advice if it were true. But the job wasn't to build an operating system; the job is to spread freedom to the users of computers. And to do that we have to make it possible to do everything with computers in freedom."~{ For narrative purposes, I have hesitated to go in-depth when describing Stallman's full definition of software "freedom." The GNU Project web site lists four fundamental components: \\ _* The freedom to run the program as you wish, for any purpose (freedom 0). \\ _* The freedom to study the program's source code, and change it so that the program does what you wish (freedom 1). \\ _* The freedom to redistribute copies of the program so you can help your neighbor (freedom 2). \\ _* The freedom to distribute copies of your modified versions, so that the whole community can benefit from them (freedom 3). For more information, please visit "The Free Software Definition" at \\ http://www.gnu.org/philosophy/free-sw.html. }~ + +Adds Stallman, "There's a lot more work to do." + +For some in the audience, this is old material. For others, it's a little arcane. When a member of the golf-shirt contingent starts dozing off, Stallman stops the speech and asks somebody to wake the person up. + +"Somebody once said my voice was so soothing, he asked if I was some kind of healer," says Stallman, drawing a quick laugh from the crowd. "I guess that probably means I can help you drift gently into a blissful, relaxing sleep. And some of you might need that. I guess I shouldn't object if you do. If you need to sleep, by all means do." + +The speech ends with a brief discussion of software patents, a growing issue of concern both within the software industry and within the free software community. Like Napster, software patents reflect the awkward nature of applying laws and concepts written for the physical world to the frictionless universe of information technology. + +Copyright law and patent law work differently, and have totally different effects in the software field. The copyright on a program controls the copying and adaptation of that program's code, and it belongs to the program's developer. But copyright does not cover ideas. In other words, a developer is free, under copyright, to implement in his own code features and commands he has seen in existing programs. Those aspects are ideas, not expression, and thus outside the scope of copyright law. + +It is likewise lawful - though hard work - to decode how a binary program works, and then implement the same ideas and algorithms indifferent code. This practice is known as "reverse engineering." + +Software patents work differently. According to the U.S. Patent Office, companies and individuals can obtain patents for computing ideas that are innovative (or, at least, unknown to the Patent Office). In theory, this allows the patent-holder to trade off disclosure of the technique for a specific monopoly lasting a minimum of 20 years after the patent filing. In practice, the disclosure is of limited value to the public, since the operation of the program is often self-evident, and could in any case be determined by reverse engineering. Unlike copyright, a patent gives its holder the power to forbid the independent development of software programs which use the patented idea. +={U.S. Patent Office} + +In the software industry, where 20 years can cover the entire life cycle of a marketplace, patents take on a strategic weight. Where companies such as Microsoft and Apple once battled over copyright and the "look and feel" of various technologies, today's Internet companies use patents as a way to stake out individual applications and business models, the most notorious example being Amazon.com's 2000 attempt to patent the company's "one-click" on line shopping process. For most companies, however, software patents have become a defensive tool, with cross-licensing deals balancing one set of corporate patents against another in a tense form of corporate detente. Still, in a few notable cases of computer encryption and graphic imaging algorithms, software vendors have successfully stifled rival developments. For instance, some font-rendering features are missing from free soft-ware because of patent threats from Apple. + +For Stallman, the software-patent issue dramatizes the need for eternal hacker vigilance. It also underlines the importance of stressing the political benefits of free software programs over the competitive benefits. Stallman says competitive performance and price, two areas where free software operating systems such as GNU/Linux and FreeBSD already hold a distinct advantage over their proprietary counterparts, are side issues compared to the large issues of user and developer freedom. +={FreeBSD+2} + +This position is controversial within the community: open source advocates emphasize the utilitarian advantages of free software over the political advantages. Rather than stress the political significance of free software programs, open source advocates have chosen to stress the engineering integrity of the hacker development model. Citing the power of peer review, the open source argument paints programs such as GNU/Linux or FreeBSD as better built, better inspected and, by extension, more trustworthy to the average user. + +That's not to say the term "open source" doesn't have its political implications. For open source advocates, the term open source serves two purposes. First, it eliminates the confusion associated with the word "free," a word many businesses interpret as meaning "zero cost." Second, it allows companies to examine the free software phenomenon on a technological, rather than ethical, basis. Eric Raymond, co-founder of the Open Source Initiative and one of the leading hackers to endorse the term, explained his refusal to follow Stallman's political path in a 1999 essay, titled "Shut Up and Show Them the Code": +={OSI (Open Source Initiative);Open Source Initiative (OSI);Raymond, Eric;Shut Up and Show Them the Code (Raymond)+1} + +_1 RMS's rhetoric is very seductive to the kind of people we are. We hackers are thinkers and idealists who readily resonate with appeals to "principle" and "freedom" and "rights." Even when we disagree with bits of his program, we want RMS's rhetorical style to work; we think it ought to work; we tend to be puzzled and disbelieving when it fails on the 95% of people who aren't wired like we are.~{ See Eric Raymond, "Shut Up and Show Them the Code," online essay, (June28, 1999), \\ http://www.catb.org/~esr/writings/shut-up-and-show-them.html. }~ + +Included among that 95%, Raymond writes, are the bulk of business managers, investors, and non-hacker computer users who, through sheer weight of numbers, tend to decide the overall direction of the commercial software marketplace. Without a way to win these people over, Raymond argues, programmers are doomed to pursue their ideology on the periphery of society: + +_1 When RMS insists that we talk about "computer users' rights," he's issuing a dangerously attractive invitation to us to repeat old failures. It's one we should reject - not because his principles are wrong, but because that kind of language, applied to software, simply does not persuade anybody but us. In fact, it confuses and repels most people outside our culture.~{ Ibid. }~ + +Stallman, however, rejects Raymond's premises: + +_1 Raymond's attempt to explain our failure is misleading because we have not failed. Our goal is large, and we have a long way to go, but we have also come a long way. + +_1 Raymond's pessimistic assertion about the values of non-hackers is an exaggeration. Many non-hackers are more concerned with the political issues we focus on than with the technical advantages that open source emphasizes. This often includes political leaders too, though not in all countries. + +_1 It was the ethical ideals of free software, not "better software," which persuaded the presidents of Ecuador and Brazil to move government agencies to free software. They are not geeks, but they understand freedom. + +But the principal flaw in the open source argument, according to Stallman, is that it leads to weaker conclusions. It convinces many users to run some programs which are free, but does not offer the many reason to migrate entirely to free software. This partially gives them freedom, but does not teach them to recognize it and value it as such, so they remain likely to let it drop and lose it. For instance, what happens when the improvement of free software is blocked by a patent? + +Most open source advocates are equally, if not more, vociferous as Stallman when it comes to opposing software patents. So too are most proprietary software developers, since patents threaten their projects too. However, pointing to software patents' tendency to put areas of software functionality off limits, Stallman contrasts what the free software idea and the open source idea imply about such cases. + +"It's not because we don't have the talent to make better software," says Stallman. "It's because we don't have the right. Somebody has prohibited us from serving the public. So what's going to happen when users encounter these gaps in free software? Well, if they have been persuaded by the open source movement that these freedoms are good because they lead to more-powerful reliable software, they're likely to say, 'You didn't deliver what you promised. This software's not more powerful. It's missing this feature. You lied to me.' But if they have come to agree with the free software movement, that the freedom is important in itself, then they will say, 'How dare those people stop me from having this feature and my freedom too.' And with that kind of response, we may survive the hits that we're going to take as these patents explode." + +Watching Stallman deliver his political message in person, it is hard to see anything confusing or repellent. Stallman's appearance may seem off-putting, but his message is logical. When an audience member asks if, in shunning proprietary software, free software proponents lose the ability to keep up with the latest technological advancements, Stallman answers the question in terms of his own personal beliefs. "I think that freedom is more important than mere technical advance," he says. "I would always choose a less advanced free program rather than a more advanced non free program, because I won't give up my freedom for something like that [advance]. My rule is, if I can't share it with you, I won't take it." + +In the minds of those who assume ethics means religion, such answers reinforce the quasi-religious nature of the Stallman message. However, unlike a Jew keeping kosher or a Mormon refusing to drink alcohol, Stallman is not obeying a commandment, but simply refusing to cede his freedom. His speech explains the practical requisites for doing so: a proprietary program takes away your freedom, so if you want freedom, you need to reject the program. + +Stallman paints his decision to use free software in place of proprietary in the color of a personal belief he hopes others will come to share. As software evangelists go, Stallman avoids forcing those beliefs down listeners' throats. Then again, a listener rarely leaves a Stallman speech not knowing where the true path to software righteousness lies. + +As if to drive home this message, Stallman punctuates his speech with an unusual ritual. Pulling a black robe out of a plastic grocery bag, Stallman puts it on. Then he pulls out a reflective brown computer disk and places it on his head. The crowd lets out a startled laugh. + +"I am St. IGNUcius of the Church of Emacs," says Stallman, raising his right hand in mock-blessing. "I bless your computer, my child." +={Ignucius, (St.);St. Ignucius} + +The laughter turns into full-blown applause after a few seconds. As audience members clap, the computer disk on Stallman's head catches the glare of an overhead light, eliciting a perfect halo effect. In the blink of an eye, Stallman resembles a Russian religious icon. + +{free_as_in_freedom_2_02_rms_st_ignucius.png 254x240 "Stallman dressed as St. IGNUcius. The photo was taken by Stian Eikeland in Bergen, Norway on February 19, 2009." }http://en.wikipedia.org/wiki/Richard_stallman + +"Emacs was initially a text editor," says Stallman, explaining the getup. "Eventually it became a way of life for many and a religion for some. We call this religion the Church of Emacs." +={Church of Emacs+8;Emacs text editor+11;GNU Emacs+11} + +The skit is a lighthearted moment of self-parody, a humorous return-jab at the many people who might see Stallman's form of software asceticism as religious fanaticism in disguise. It is also the sound of the other shoe dropping - loudly. It's as if, in donning his robe and halo, Stallman is finally letting listeners off the hook, saying, "It's OK to laugh. I know I'm weird." [RMS: To laugh at someone for being weird is boorish, and it is not my intention to excuse that. But I hope people will laugh at my St. IGNUcius comedy routine.] + +Discussing the St. IGNUcius persona afterward, Stallman says he first came up with it in 1996, long after the creation of Emacs but well before the emergence of the "open source" term and the struggle for hacker-community leadership that precipitated it. At the time, Stallman says, he wanted a way to "poke fun at himself," to remind listeners that, though stubborn, Stallman was not the fanatic some made him out to be. It was only later, Stallman adds, that others seized the persona as a convenient way to play up his reputation as software ideologue, as Eric Raymond did in an 1999 interview with the Linux.com web site: +={linux.com;Raymond, Eric:St. Ignucius and+2} + +_1 When I say RMS calibrates what he does, I'm not belittling or accusing him of insincerity. I'm saying that like all good communicators he's got a theatrical streak. Sometimes it's conscious - have you ever seen him in his St. IGNUcius drag, blessing software with a disk platter on his head? Mostly it's unconscious; he's just learned the degree of irritating stimulus that works, that holds attention without (usually) freaking people out.~{ See "Guest Interview: Eric S. Raymond," /{Linux.com}/ (May 18, 1999), \\ http://www.linux.com/interviews/19990518/8/. }~ + +Stallman takes issue with the Raymond analysis. "It's simply my way of making fun of myself," he says. "The fact that others see it as anything more than that is a reflection of their agenda, not mine." + +That said, Stallman does admit to being a ham. "Are you kidding?" he says at one point. "I love being the center of attention." To facilitate that process, Stallman says he once enrolled in Toastmasters, an organization that helps members bolster their public-speaking skills and one Stallman recommends highly to others. He possesses a stage presence that would be the envy of most theatrical performers and feels a link to vaudevillians of years past. A few days after the Maui High Performance Computing Center speech, I allude to the 1999 LinuxWorld performance and ask Stallman if he has a Groucho Marx complex - i.e., the unwillingness to belong to any club that would have him as a member.~{ RMS: Williams misinterprets Groucho's famous remark by treating it as psychological. It was intended as a jab at the overt antisemitism of many clubs, which was why they would refuse him as a member. I did not understand this either until my mother explained it to me. Williams and I grew up when bigotry had gone underground, and there was no need to veil criticism of bigotry in humor as Groucho did. }~ Stallman's response is immediate: "No, but I admire Groucho Marx in a lot of ways and certainly have been in some things I say inspired by him. But then I've also been inspired in some ways by Harpo." +={Marx, Groucho+1} + +The Groucho Marx influence is certainly evident in Stallman's lifelong fondness for punning. Then again, punning and wordplay are common hacker traits. Perhaps the most Groucho-like aspect of Stallman's personality, however, is the deadpan manner in which the puns are delivered. Most come so stealthily - without even the hint of a raised eyebrow or upturned smile - you almost have to wonder if Stal-man's laughing at his audience more than the audience is laughing at him. + +Watching members of the Maui High Performance Computer Center laugh at the St. IGNUcius parody, such concerns evaporate. While not exactly a standup act, Stallman certainly possesses the chops to keep a roomful of engineers in stitches. "To be a saint in the Church of Emacs does not require celibacy, but it does require making a commitment to living a life of moral purity," he tells the Maui audience. "You must exorcise the evil proprietary operating systems from all your computers, and then install a wholly [holy] free operating system. And then you must install only free software on top of that. If you make this commitment and live by it, then you too will be a saint in the Church of Emacs, and you too may have a halo." + +The St. IGNUcius skit ends with a brief inside joke. On most Unix systems and Unix-related offshoots, the primary competitor program to Emacs is vi, pronounced vee-eye, a text-editing program developed by former UC Berkeley student and current Sun Microsystems chief scientist, Bill Joy. Before doffing his "halo," Stallman pokes fun at the rival program. "People sometimes ask me if it is a sin in the Church of Emacs to use vi," he says. "Using a free version of vi is not a sin;it is a penance. So happy hacking."~{ The service of the Church of Emacs has developed further since 2001. Users can now join the Church by reciting the Confession of the Faith: "There is no system but GNU, and Linux is one of its kernels." Stallman sometimes mentions the religious ceremony known as the Foobar Mitzvah, the Great Schism between various rival versions of Emacs, and the cult of the Virgin of Emacs (which refers to any person that has not yet learned to use Emacs). In addition, "vi vi vi" has been identified as the Editor of the Beast. }~ +={Joy, Bill;vi text editor:as an Emacs competitor;UC Berkeley;Sun Microsystems} + +After a brief question-and-answer session, audience members gather around Stallman. A few ask for autographs. "I'll sign this," says Stallman, holding up one woman's print out of the GNU General Public License, "but only if you promise me to use the term GNU/Linux instead of Linux" (when referring to the system), "and tell all your friends to do likewise." +={GNU General Public License;GPL} + +The comment merely confirms a private observation. Unlike other stage performers and political figures, Stallman has no "off" mode. Aside from the St. IGNUcius character, the ideologue you see on stage is the ideologue you meet backstage. Later that evening, during a dinner conversation in which a programmer mentions his affinity for "open source" programs, Stallman, between bites, upbraids his table-mate: "You mean free software. That's the proper way to refer to it." + +During the question-and-answer session, Stallman admits to playing the pedagogue at times. "There are many people who say, 'Well, first let's invite people to join the community, and then let's teach them about freedom.' And that could be a reasonable strategy, but what we have is almost everybody's inviting people to join the community, and hardly anybody's teaching them about freedom once they come in." + +The result, Stallman says, is something akin to a third-world city. "You have millions of people moving in and building shantytowns, but nobody's working on step two: getting them out of those shantytowns. If you think talking about software freedom is a good strategy, please join in doing step two. There are plenty working on step one. We need more people working on step two." + +Working on "step two" means driving home the issue that freedom, not acceptance, is the root issue of the free software movement. Those who hope to reform the proprietary software industry from the inside are on a fool's errand. "Change from the inside is risky," Stallman stays. "Unless you're working at the level of a Gorbachev, you're going to be neutralized." + +Hands pop up. Stallman points to a member of the golf shirt-wearing contingent. "Without patents, how would you suggest dealing with commercial espionage?" + +"Well, those two questions have nothing to do with each other, really," says Stallman. + +"But I mean if someone wants to steal another company's piece of software." + +Stallman's recoils as if hit by a poisonous spray. "Wait a second," Stallman says. "Steal? I'm sorry, there's so much prejudice in that statement that the only thing I can say is that I reject that prejudice." Then he turns to the substance of the question. "Companies that develop non-free software and other things keep lots and lots of trade secrets, and so that's not really likely to change. In the old days -even in the 1980s - for the most part programmers were not aware that there were even software patents and were paying no attention to them. What happened was that people published the interesting ideas, and if they were not in the free software movement, they kept secret the little details. And now they patent those broad ideas and keep secret the little details. So as far as what you're describing, patents really make no difference to it one way or another." + +"But if it doesn't affect their publication," a new audience member jumps in, his voice trailing off almost as soon as he starts speaking. + +"But it does," Stallman says. "Their publication is telling you that this is an idea that's off limits to the rest of the community for 20 years. And what the hell good is that? Besides, they've written it in such a hard way to read, both to obfuscate the idea and to make the patent as broad as possible, that it's basically useless looking at the published information [in the patent] to learn anything anyway. The only reason to look at patents is to see the bad news of what you can't do." + +The audience falls silent. The speech, which began at 3:15, is now nearing the 5:00 whistle, and most listeners are already squirming in their seats, antsy to get a jump start on the weekend. Sensing the fatigue, Stallman glances around the room and hastily shuts things down. "So it looks like we're done," he says, following the observation with an auctioneer's "going, going, gone" to flush out any last-minute questioners. When nobody throws their hand up, Stallman signs off with a traditional exit line. + +"Happy hacking," he says. + +1~ Chapter 9 - The GNU General Public License +={GNU General Public License+82;GPL+82;Stallman, Richard M.:childhood:GNU General Public License+82} + +By the spring of 1985, Richard Stallman had produced the GNU Project's first useful result - a Lisp-based version of Emacs for Unix-like operating systems. To make it available to others as free software, he had to develop the way to release it - in effect, the follow-on for the Emacs Commune. +={Emacs Commune+7;Emacs text editor:Lisp-based free software version;GNU Emacs:List-based free software version} + +The tension between the freedom to modify and authorial privilege had been building before Gosmacs. The Copyright Act of 1976 had overhauled U.S. copyright law, extending the legal coverage of copyright to software programs. According to Section 102(b) of the Act, individuals and companies could copyright the "expression" of a software program but not the "actual processes or methods embodied in the program."~{ See Hal Abelson, Mike Fischer, and Joanne Costello, "Software and Copyright Law," updated version (1997), \\ http://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/software-copyright.html. }~ +={Copyright Act of 1976;copyright laws;GOSMACS (Gosling Emacs);software:copyright laws on} + +Translated, this treated a program much like an algebra textbook:its author can claim copyright on the text but not on the mathematical ideas of algebra or the pedagogical technique employed to explain it. Thus, regardless of what Stallman said about using the code of the original Emacs, other programmers were legally entitled to write their own implementations of the ideas and commands of Emacs, and they did. Gosmacs was one of 30-odd imitations of the original Emacs developed for various computer systems. + +The Emacs Commune applied only to the code of the original Emacs program written by Stallman himself. Even if it had been legally enforced, it would not have applied to separately developed imitations such as Gosmacs. Making Gosmacs non-free was unethical according to the ethical ideas of the free software movement, because(as proprietary software) it did not respect its users' freedom, but this issue had nothing to do with where the ideas in Gosmacs came from. + +Under copyright, programmers who wanted to copy code from an existing program (even with changes) had to obtain permission from the original developer. The new law applied copyright even in the absence of copyright notices - though hackers generally did not know this - and the copyright notices too began appearing. + +Stallman saw these notices as the flags of an invading, occupying army. Rare was the program that didn't borrow source code from past programs, and yet, with a single stroke of the president's pen, the U.S. government had given programmers and companies the legal power to forbid such reuse. Copyright also injected a dose of formality into what had otherwise been an informal system. Simply put, disputes that had once been settled hacker-to-hacker were now to be settled lawyer-to-lawyer. In such a system, companies, not hackers, held the automatic advantage. Some saw placing one's name in a copyright notice as taking responsibility for the quality of the code, but the copyright notice usually has a company's name, and there are other ways for individuals to say what code they wrote. +={source code:copy rights for} + +However, Stallman also noticed, in the years leading up to the GNU Project, that copyright allowed an author to grant permission for certain activities covered by copyright, and place conditions on them too. "I had seen email messages with copyright notices plus simple 'verbatim copying permitted' licenses," he recalls. "Those definitely were [an] inspiration." These licenses carried the condition not to remove the license. Stallman's idea was to take this a few steps further. For example, a permission notice could allow users to redistribute even modified versions, with the condition that these versions carry the same permission. + +Thus Stallman concluded that use of copyright was not necessarily unethical. What was bad about software copyright was the way it was typically used, and designed to be used: to deny the user essential freedoms. Most authors imagined no other way to use it. But copyright could be used in a different way: to make a program free and assure its continued freedom. + +By GNU Emacs 16, in early 1985, Stallman drafted a copyright-based license that gave users the right to make and distribute copies. It also gave users the right to make and distribute modified versions, but only under the same license. They could not exercise the unlimited power of copyright over those modified versions, so they could not make their versions proprietary as Gosmacs was. And they had to make the source code available. Those conditions closed the legal gap that would otherwise allow restricted, non-free versions of GNU Emacs to emerge. +={Emacs text editor:copyrights and|GNU Emacs License and;GNU Emacs:copyrights and|GNU Emacs License and;GOSMACS (Gosling Emacs):copyrights and;licenses+15} + +Although helpful in codifying the social contract of the Emacs Commune, the early GNU Emacs license remained too "informal" for its purpose, Stallman says. Soon after forming the Free Software Foundation he began working on a more airtight version, consulting with the other directors and with the attorneys who had helped to set it up. + +Mark Fischer, a Boston copyright attorney who initially provided Stallman's legal advice, recalls discussing the license with Stallman during this period. "Richard had very strong views about how it should work," Fischer says, "He had two principles. The first was to make the software absolutely as open as possible." (By the time he said this, Fischer seems to have been influenced by open source supporters; Stallman never sought to make software "open.") "The second was to encourage others to adopt the same licensing practices." The requirements in the license were designed for the second goal. +={Fischer, Mark+2} + +The revolutionary nature of this final condition would take a while to sink in. At the time, Fischer says, he simply viewed the GNU Emacs license as a simple trade. It put a price tag on GNU Emacs' use. Instead of money, Stallman was charging users access to their own later modifications. That said, Fischer does remember the license terms as unique. + +"I think asking other people to accept the price was, if not unique, highly unusual at that time," he says. + +In fashioning the GNU Emacs license, Stallman made one major change to the informal tenets of the old Emacs Commune. Where he had once demanded that Commune members send him all the changes they wrote, Stallman now demanded only that they pass along source code and freedom whenever they chose to redistribute the program. In other words, programmers who simply modified Emacs for private use no longer needed to send the source-code changes back to Stallman. In a rare alteration of free software doctrine, Stallman slashed the "price tag" for free software. Users could innovate without Stallman looking over their shoulders, and distribute their versions only when they wished, just so long as all copies came with permission for their possessors to develop and redistribute them further. + +Stallman says this change was fueled by his own dissatisfaction with the Big Brother aspect of the original Emacs Commune social contract. As much as he had found it useful for everyone to send him their changes, he came to feel that requiring this was unjust. "It was wrong to require people to publish all changes," says Stallman. + +"It was wrong to require them to be sent to one privileged developer. That kind of centralization and privilege for one was not consistent with a society in which all had equal rights." + +The GNU Emacs General Public License made its debut on a version of GNU Emacs in 1985. Following the release, Stallman welcomed input from the general hacker community on how to improve the license's language. One hacker to take up the offer was future software activist John Gilmore, then working as a consultant to Sun Microsystems. As part of his consulting work, Gilmore had ported Emacs over to SunOS, the company's in-house version of Unix. In the process of doing so, Gilmore had published the changed version under the GNU Emacs license. Instead of viewing the license as a liability, Gilmore saw it as clear and concise expression of the hacker ethos. "Up until then, most licenses were very informal," Gilmore recalls. +={Gilmore, John+6;SunOS:porting Emacs to;Sun Microsystems} + +As an example of this informality, Gilmore cites the mid-1980s copyright license of trn, a news reader program written by Larry Wall, a hacker who could go onto later fame as the creator of both the Unix "patch" utility and the Perl scripting language. In the hope of striking a balance between common hacker courtesy and an author's right to dictate the means of commercial publication, Wall used the program's accompanying copyright notice as an editorial sounding board. +={Wall, Larry+1;patches, inserting into source code;Perl programming language;source code:patches} + +_1 Copyright (c) 1985, Larry Wall \\ You may copy the trn kit in whole or in part as long as you don't try to make money off it, or pretend that you wrote it.~{ See Trn Kit README, \\ http://stuff.mit.edu/afs/sipb/project/trn/src/trn-3.6/README. }~ + +Such statements, while reflective of the hacker ethic, also reflected the difficulty of translating the loose, informal nature of that ethic into the rigid, legal language of copyright. In writing the GNU Emacs license, Stallman had done more than close up the escape hatch that permitted proprietary offshoots. He had expressed the hacker ethic in a manner understandable to both lawyer and hacker alike. + +It wasn't long, Gilmore says, before other hackers began discussing ways to "port" the GNU Emacs license over to their own programs. Prompted by a conversation on Usenet, Gilmore sent an email to Stallman in November, 1986, suggesting modification: + +_1 You should probably remove "EMACS" from the license and replace it with "SOFTWARE" or something. Soon, we hope, Emacs will not be the biggest part of the GNU system, and the license applies to all of it.~{ See John Gilmore, quoted from email to author. }~ + +Gilmore wasn't the only person suggesting a more general approach. By the end of 1986, Stallman himself was at work with GNU Project's next major milestone, the source-code debugger GDB. To release this, he had to modify the GNU Emacs license so it applied to GDB instead of GNU Emacs. It was not a big job, but it was an opening for possible errors. In 1989, Stallman figured out how to remove the specific references to Emacs, and express the connection between the program code and the license solely in the program's source files. This way, any developer could apply the license to his program without changing the license. The GNU General Public License, GNU GPL for short, was born. The GNU Project soon made it the official license of all existing GNU programs. +={GNU Debugger (GDB)+1;GDB (GNU Debugger);Debugger+1} + +In publishing the GPL, Stallman followed the software convention of using decimal numbers to indicate versions with minor changes and whole numbers to indicate versions with major changes. The first version, in 1989, was labeled Version 1.0. The license contained a preamble spelling out its political intentions: + +_1 The General Public License is designed to make sure that you have the freedom to give away or sell copies of free software, that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. + +_1 To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.~{ See Richard Stallman, et al., "GNU General Public License: Version 1,"(February, 1989), \\ http://www.gnu.org/licenses/old-licenses/gpl-1.0.html. }~ + +As hacks go, the GPL stands as one of Stallman's best. It created a system of communal ownership within the normally proprietary confines of copyright law. More importantly, it demonstrated the intellectual similarity between legal code and software code. Implicit within the GPL's preamble was a profound message: instead of viewing copyright law with suspicion, hackers should view it as a dangerous system that could be hacked. +% ={Emacs Commune+1} + +"The GPL developed much like any piece of free software with a large community discussing its structure, its respect or the opposite in their observation, needs for tweaking and even to compromise it mildly for greater acceptance," says Jerry Cohen, another attorney who advised Stallman after Fischer departed. "The process worked very well and GPL in its several versions has gone from widespread skeptical and at times hostile response to widespread acceptance." + +In a 1986 interview with /{BYTE}/ magazine, Stallman summed up the GPL in colorful terms. In addition to proclaiming hacker values, Stallman said, readers should also "see it as a form of intellectual ju-jitsu, using the legal system that software hoarders have set up against them."~{ See David Betz and Jon Edwards, "Richard Stallman discusses his public-domain [ sic ] Unix-compatible software system with BYTE editors," BYTE (July, 1986). (Reprinted on the GNU Project web site: \\ http://www.gnu.org/gnu/byte-interview.html .) \\ This interview offers an interesting, not to mention candid, glimpse at Stallman's political attitudes during the earliest days of the GNU Project. It is also helpful in tracing the evolution of Stallman's rhetoric. \\ Describing the purpose of the GPL, Stallman says, "I'm trying to change the way people approach knowledge and information in general. I think that to try to own knowledge, to try to control whether people are allowed to use it, or to try to stop other people from sharing it, is sabotage." \\ Contrast this with a statement to the author in August 2000: "I urge you not to use the term 'intellectual property' in your thinking. It will lead you to misunderstand things, because that term generalizes about copyrights, patents, and trademarks. And those things are so different in their effects that it is entirely foolish to try to talk about them at once. If you hear somebody saying something' about intellectual property,' without [putting it in] quotes, then he's not thinking very clearly and you shouldn't join." \\ [RMS: The contrast it shows is that I've learned to be more cautious in generalizing. I probably wouldn't talk about "owning knowledge" today, since it's a very broad concept. But "owning knowledge" is not the same generalization as "intellectual property," and the difference between those three laws is crucial to understanding any legal issue about owning knowledge. Patents are direct monopolies over using specific knowledge; that really is one form of "owning knowledge." Copyrights are one of the methods used to stop the sharing of works that embody or explain knowledge, which is a very different thing. Meanwhile, trademarks have very little to do with the subject of knowledge.] }~ Years later, Stallman would describe the GPL's creation in less hostile terms. "I was thinking about issues that were in a sense ethical and in a sense political and in a sense legal," he says. "I had to try to do what could be sustained by the legal system that we're in. In spirit the job was that of legislating the basis for a new society, but since I wasn't a government, I couldn't actually change any laws. I had to try to do this by building on top of the existing legal system, which had not been designed for anything like this." +={Byte magazine} + +About the time Stallman was pondering the ethical, political, and legal issues associated with free software, a California hacker named Don Hopkins mailed him a manual for the 68000 microprocessor. Hopkins, a Unix hacker and fellow science-fiction buff, had borrowed the manual from Stallman a while earlier. As a display of gratitude, Hopkins decorated the return envelope with a number of stickers obtained at a local science-fiction convention. One sticker in particular caught Stallman's eye. It read, "Copyleft (L), All Rights Reversed." Stallman, inspired by the sticker, nicknamed the legal technique employed in the GNU Emacs license (and later in the GNU GPL) "Copyleft," jocularly symbolized by a backwards "C" in a circle. Over time, the nickname would become general Free Software Foundation terminology for any copyright license "making a program free software and requiring all modified and extended versions of the program to be free software as well." +={copyleft;Hopkins, Don} + +The German sociologist Max Weber once proposed that all great religions are built upon the "routinization" or "institutionalization" of charisma. Every successful religion, Weber argued, converts the charisma or message of the original religious leader into a social, political, and ethical apparatus more easily translatable across cultures and time. +={Weber, Max} + +While not religious per se, the GNU GPL certainly qualifies as an interesting example of this "routinization" process at work in the modern, decentralized world of software development. Since its unveiling, programmers and companies who have otherwise expressed little loyalty or allegiance to Stallman have willingly accepted the GPL bargain at face value. Thousands have also accepted the GPL as a preemptive protective mechanism for their own software programs. Even those who reject the GPL conditions as too limiting still credit it as influential. + +One hacker falling into this latter group was Keith Bostic, a University of California employee at the time of the GPL 1.0 release. Bostic's department, the Computer Systems Research Group (SRG), had been involved in Unix development since the late 1970s and was responsible for many key parts of Unix, including the TCP/IP networking protocol, the cornerstone of modern Internet communications. By the late 1980s, AT&T, the original owner of the Unix software, began to focus on commercializing Unix and began looking to the Berkeley Software Distribution, or BSD, the academic version of Unix developed by Bostic and his Berkeley peers, as a key source of commercial technology. +={AT&T+1;Berkely Software Distribution (BSD)+6;Bostic, Keith+5;BSD (Berkely Software Distribution)+6;Computer Systems Research Group;University of California+4;TCP/IP} + +The code written by Bostic and friends was off limits to nearly everyone, because it was intermixed with proprietary AT&T code. Berkeley distributions were therefore available only to institutions that already had a Unix source license from AT&T. As AT&T raised its license fees, this arrangement, which had at first seemed innocuous (to those who thought only of academia) became increasingly burdensome even there. To use Berkeley's code in GNU, Stallman would have to convince Berkeley to separate it from AT&T's code and release it as free software. In 1984 or 1985 he met with the leaders of the BSD effort, pointing out that AT&T was not a charity and that for a university to donate its work (in effect) to AT&T was not proper. He asked them to separate out their code and release it as free software. +={licenses:AT&T UNIX source code and+2} + +Hired in 1986, Bostic had taken on the personal project of porting the latest version of BSD to the PDP-11 computer. It was during this period, Bostic says, that he came into close interaction with Stallman during Stallman's occasional forays out to the west coast. "I remember vividly arguing copyright with Stallman while he sat at borrowed workstations at CSRG," says Bostic. "We'd go to dinner afterward and continue arguing about copyright over dinner." +={PDP-11 computer} + +The arguments eventually took hold, although not in the way Stallman would have preferred. In June, 1989, Berkeley had separated its networking code from the rest of the AT&T-owned operating system and began distributing it under a copyright-based free license. The license terms were liberal. All a licensee had to do was give credit to the university in advertisements touting derivative programs.~{ The University of California's "obnoxious advertising clause" would later prove to be a problem. Looking for a permissive alternative to the GPL, some hackers used the original BSD license, replacing "University of California" with their own names or the names of their institutions. The result: free software systems using many of these programs would have to cite dozens of names in advertisements. In 1999, after a few years of lobbying on Stallman's part, the University of California agreed to drop this clause. See "The BSD License Problem" at \\ http://www.gnu.org/philosophy/bsd.html. }~ In contrast to the GPL, this license permitted proprietary offshoots. One problem limited the use of the BSD Networking release: it wasn't a complete operating system, just the network-related parts of one. While the code would be a major contribution to any free operating system, it could only be run at that time in conjunction with other, proprietary-licensed code. +={AT&T+1} + +Over the next few years, Bostic and other University of California employees worked to replace the missing components and turn BSD into a complete, freely redistributable operating system. Although delayed by a legal challenge from Unix Systems Laboratories - the AT&T spin-off that retained ownership of the Unix code - the effort would finally bear fruit in the early 1990s. Even before then, however, many of the Berkeley network utilities would make their way into Stallman's GNU system. + +"I think it's highly unlikely that we ever would have gone as strongly as we did without the GNU influence," says Bostic, looking back. "It was clearly something where they were pushing hard and we liked the idea." + +By the end of the 1980s, the GPL was beginning to exert a gravitational effect on the free software community. A program didn't have to carry the GPL to qualify as free software - witness the case of the BSD network utilities - but putting a program under the GPL sent a definite message. "I think the very existence of the GPL inspired people to think through whether they were making free software, and how they would license it," says Bruce Perens, creator of Electric Fence, a popular Unix utility, and future leader of the Debian GNU/Linux development team. A few years after the release of the GPL, Perens says he decided to discard Electric Fence's homegrown license in favor of Stallman's lawyer-vetted copyright. "It was actually pretty easy to do," Perens recalls. +={Perens, Bruce} + +Rich Morin, the programmer who had viewed Stallman's initial GNU announcement with a degree of skepticism, recalls being impressed by the software that began to gather under the GPL umbrella. As the leader of a SunOS user group, one of Morin's primary duties during the 1980s had been to send out distribution tapes containing the best freeware or free software utilities. The job often mandated calling up original program authors to verify whether their programs were copyrighted or whether they had been consigned to the public domain. Around 1989, Morin says, he began to notice that the best software programs typically fell under the GPL license. "As a software distributor, as soon as I saw the word GPL, I knew I was home free,"recalls Morin. +={SunOS} + +To compensate for the prior hassles that went into compiling distribution tapes to the Sun User Group, Morin had charged recipients a convenience fee. Now, with programs moving over to the GPL, Morin was suddenly getting his tapes put together in half the time, turning a tidy profit in the process. Sensing a commercial opportunity, Morin rechristened his hobby as a business: Prime Time Freeware. +={Sun User Group} + +Such commercial exploitation was completely consistent with the free software agenda. "When we speak of free software, we are referring to freedom, not price," advised Stallman in the GPL's preamble. By the late 1980s, Stallman had refined it to a more simple mnemonic: "Don't think free as in free beer; think free as in free speech." + +For the most part, businesses ignored Stallman's entreaties. Still, for a few entrepreneurs, the freedom associated with free software was the same freedom associated with free markets. Take software ownership out of the commercial equation, and you had a situation where even the smallest software company was free to compete against the IBMs and DECs of the world. + +One of the first entrepreneurs to grasp this concept was Michael Tiemann, a software programmer and graduate student at Stanford University. During the 1980s, Tiemann had followed the GNU Project like an aspiring jazz musician following a favorite artist. It wasn't until the release of the GNU C Compiler, or GCC, in 1987, however, that he began to grasp the full potential of free software. Dubbing GCC a "bombshell," Tiemann says the program's own existence underlined Stallman's determination as a programmer. +={C Compiler (GNU)+9;GNU C Compiler (GCC)+9;GCC (GNU C Compiler)+9;Tiemann, Michael+8;Stanford University} + +"Just as every writer dreams of writing the great American novel, every programmer back in the 1980s talked about writing the great American compiler," Tiemman recalls. "Suddenly Stallman had done it. It was very humbling." + +"You talk about single points of failure, GCC was it," echoes Bostic. "Nobody had a compiler back then, until GCC came along." + +Rather than compete with Stallman, Tiemann decided to build on top of his work. The original version of GCC weighed in at 110,000 lines of code, but Tiemann recalls the program as surprisingly easy to understand. So easy in fact that Tiemann says it took less than five days to master and another week to port the software to a new hardware platform, National Semiconductor's 32032 microchip. Over the next year, Tiemann began playing around with the source code, creating the first "native" or direct compiler for the C++ programming language, by extending GCC to handle C++ as well as C. (The existing, proprietary implementation of the C++ language worked by converting the code to the C language, then feeding the result to a C compiler.) One day, while delivering a lecture on the program at Bell Labs, Tiemann ran into some AT&T developers struggling to pull off the same thing. +={C+ programming language} + +"There were about 40 or 50 people in the room, and I asked how many people were working on the native code compiler," Tiemann recalls. "My host said the information was confidential but added that if I took a look around the room I might get a good general idea." + +It wasn't long after, Tiemann says, that the light bulb went off in his head. "I had been working on that project for six months," Tiemann says. I just thought to myself, whether it's me or the code, this is a level of efficiency that the free market should be ready to reward." + +Tiemann found added inspiration in the /{GNU Manifesto}/: while excoriating the greed of proprietary software vendors, it also encourages companies, as long as they respect users freedom, to use and redistribute free software in their commercial activities. By removing the power of monopoly from the commercial software question, the GPL makes it possible for even small companies to compete on the basis of service, which extends from simple tech support to training to extending free programs for specific clients' needs. +={GNU Manifesto} + +In a 1999 essay, Tiemann recalls the impact of Stallman's /{Manifesto}/. "It read like a socialist polemic, but I saw something different. I saw a business plan in disguise."~{ See Michael Tiemann, "Future of Cygnus Solutions: An Entrepreneur's Account," Open Sources (O'Reilly & Associates, Inc., 1999): 139, \\ http://www.oreilly.com/catalog/opensources/book/tiemans.html. }~ + +This business plan was not new; Stallman supported himself in the late 80s by doing this on a small scale. But Tiemann intended to take it to a new level. Teaming up with John Gilmore and David Vinayak Wallace, Tiemann launched a software consulting service dedicated to customizing GNU programs. Dubbed Cygnus Support (informally, "Cygnus" was a recursive acronym for "Cygnus, Your GNU Support"), the company signed its first development contract in February, 1990. By the end of the year, the company had $725,000 worth of support and development contracts. +={Gilmore, John} + +The complete GNU operating system Stallman envisioned required more than software development tools. In the 1990s, GNU also developed a command line interpreter or "shell," which was an extended replacement for the Bourne Shell (written by FSF employee Brian Fox, and christened by Stallman the Bourne Again Shell, or BASH), as well as the PostScript interpreter Ghostscript, the documentation browser platform Texinfo, the C Library which C programs need in order to run and talk to the system's kernel, the spreadsheet Oleo ("better for you than the more expensive spreadsheet"), and even a fairly good chess game. However, programmers were typically most interested in the GNU programming tools. + +GNU Emacs, GDB, and GCC were the "big three" of developer-oriented tools, but they weren't the only ones developed by the GNU Project in the 80s. By 1990, GNU had also generated GNU versions of the build-controller Make, the parser-generator YACC (rechristened Bison), and awk (rechristened gawk); as well as dozens more. Like GCC, GNU programs were usually designed to run on multiple systems, not just a single vendor's platform. In the process of making programs more flexible, Stallman and his collaborators often made them more useful as well. + +Recalling the GNU universalist approach, Prime Time Freeware's Morin points to a useless but vitally important software package called GNU Hello, which serves as an example to show programmers how to properly package a program for GNU. "It's the hello world program which is five lines of C, packaged up as if it were a GNU distribution," Morin says. "And so it's got the Texinfo stuff and the configure stuff. It's got all the other software engineering goo that the GNU Project has come up with to allow packages to port to all these different environments smoothly. That's tremendously important work, and it affects not only all of [Stallman's] software, but also all of the other GNU Project software." + +According to Stallman, improving technically on the components of Unix was secondary to replacing them with free software. "With each piece I may or may not find a way to improve it," said Stallman to /{BYTE}/. "To some extent I am getting the benefit of reimplementation, which makes many systems much better. To some extent it's because I have been in the field a long time and worked on many other systems. I therefore have many ideas [which I learned from them] to bring to bear."~{ See Richard Stallman, BYTE (1986). }~ +={Byte magazine} + +Nevertheless, as GNU tools made their mark in the late 1980s, Stallman's AI Lab-honed reputation for design fastidiousness soon became legendary throughout the entire software-development community. + +Jeremy Allison, a Sun user during the late 1980s and programmer destined to run his own free software project, Samba, in the 1990s, recalls that reputation with a laugh. During the late 1980s, Allison began using Emacs. Inspired by the program's community-development model, Allison says he sent in a snippet of source code only to have it rejected by Stallman. +={Allison, Jeramy+1} + +"It was like the /{Onion}/ headline," Allison says. "'Child's prayers to God answered: No.'" +={Onion, The} + +As the GNU Project moved from success to success in creation of user-level programs and libraries, it postponed development of the kernel, the central "traffic cop" program that controls other programs' access to the processor and all machine resources. + +As with several other major system components, Stallman sought a head-start on kernel development by looking for an existing program to adapt. A review of GNU Project "GNUs letters" of the late 1980s reveals that this approach, like the initial attempt to build GCC out of Pastel, had its problems. A January, 1987 GNUs letter reported the GNU Project's intention to overhaul TRIX, a kernel developed at MIT. However, Stallman never actually tried to do this, since he was working on GCC at the time; later he concluded that TRIX would require too much change to be a good starting point. By February of 1988, according to a newsletter published that month, the GNU Project had shifted its kernel plans to Mach, a lightweight "micro-kernel" developed at Carnegie Mellon. Mach was not then free software, but its developers privately said they would liberate it; when this occurred, in 1990, GNU Project kernel development could really commence.~{ See "Hurd History," \\ http://www.gnu.org/software/hurd/history.html. }~ + +The delays in kernel development were just one of many concerns weighing on Stallman during this period. In 1989, Lotus Development Corporation filed suit against rival software companies, Paperback Software International and Borland, for copying menu commands from Lotus' popular 1-2-3 Spreadsheet program. Lotus' suit, coupled with the Apple-Microsoft "look and feel" battle, endangered the future of the GNU system. Although neither suit directly attacked the GNU Project, both threatened the right to develop software compatible with existing programs, as many GNU programs were. These lawsuits could impose a chilling effect on the entire culture of software development. Determined to do something, Stallman and a few professors put an ad in /{The Tech}/ (the MIT student newspaper) blasting the lawsuits and calling for a boycott of both Lotus and Apple. He then followed up the ad by helping to organize a group to protest the corporations filing the suit. Calling itself the League for Programming Freedom, the group held protests outside the offices of Lotus, Inc. +={Apple Computers;Lotus Development Corp.;Microsoft Corporation:Apple Computer lawsuit;Paperback Software International} + +The protests were notable.~{ According to a League for Programming Freedom press release at \\ http://progfree.org/Links/prep.ai.mit.edu/demo.final.release, the protests were no-table for featuring the first hexadecimal protest chant: \\ 1-2-3-4, toss the lawyers out the door \\ 5-6-7-8, innovate don't litigate \\ 9-A-B-C, 1-2-3 is not for me \\ D-E-F-O, look and feel have got to go }~ + +They document the evolving nature of the software industry. Applications had quietly replaced operating systems as the primary corporate battleground. In its unfinished quest to build a free software operating system, the GNU Project seemed hopelessly behind the times to those whose primary values were fashion and success. Indeed, the very fact that Stallman had felt it necessary to put together an entirely new group dedicated to battling the "look and feel" lawsuits led some observers to think that the FSF was obsolete. + +However, Stallman had a strategic reason to start a separate organization to fight the imposition of new monopolies on software development: so that proprietary software developers would join it too. Extending copyright to cover interfaces would threaten many proprietary software developers as well as many free software developers. These proprietary developers were unlikely to endorse the Free Soft-ware Foundation, but there was, intentionally, nothing in the League for Programming Freedom to drive them away. For the same reason, Stallman handed over leadership of LPF to others as soon as it was feasible. + +In 1990, the John D. and Catherine T. MacArthur Foundation certified Stallman's genius status when it granted Stallman a Mac Arthur fellowship, the so-called "genius grant," amounting in this case to$240,000 over 5 years. Although the Foundation does not state a reason for its grants, this one was seen as an award for launching the GNU Project and giving voice to the free software philosophy. The grant relieved a number of short-term concerns for Stallman. For instance, it enabled him to cease the consulting work through which he had obtained his income in the 80s and devote more time to the free software cause. + +The award also made it possible for Stallman to register normally to vote. In 1985 a fire in the house where Stallman lived left him without an official domicile. It also covered most of his books with ash, and cleaning these "dirty books" did not yield satisfying results. From that time he lived as a "squatter" at 545 Technology Square, and had to vote as a "homeless person."~{ See Reuven Lerner, "Stallman wins $240,000 MacArthur award," MIT, The Tech (July 18, 1990), \\ http://the-tech.mit.edu/V110/N30/rms.30n.html. }~ "[The Cambridge Election Commission] didn't want to accept that as my address," Stallman would later recall. "A newspaper article about the MacArthur grant said that, and then they let me register."~{ See Michael Gross, "Richard Stallman: High School Misfit, Symbol of Free Software, Mac Arthur-certified Genius" (1999). }~ + +Most importantly, the MacArthur fellowship gave Stallman press attention and speaking invitations, which he used to spread the word about GNU, free software, and dangers such as "look and feel" lawsuits and software patents. + +Interestingly, the GNU system's completion would stem from one of these trips. In April 1991, Stallman paid a visit to the Polytechnic University in Helsinki, Finland. Among the audience members was 21-year-old Linus Torvalds, who was just beginning to develop the Linux kernel - the free software kernel destined to fill the GNU system's main remaining gap. +={Helsinki, Finland+3;Polytechnic University (Finland);Torvalds, Linus+16} + +A student at the nearby University of Helsinki at the time, Torvalds regarded Stallman with bemusement. "I saw, for the first time in my life, the stereotypical long-haired, bearded hacker type," recalls Torvalds in his 2001 autobiography /{Just for Fun}/. "We don't have much of them in Helsinki."~{ See Linus Torvalds and David Diamond, Just For Fun: The Story of an Accidental Revolutionary (Harper Collins Publishers, Inc., 2001): 58-59. Although presumably accurate in regard to Torvalds' life, what the book says about Stallman is sometimes wrong. For instance, it says that Stallman "wants to make everything open source," and that he "complains about other people not using the GPL." In fact, Stallman advocates free software, not open source. He urges authors to choose the GNU GPL, in most circumstances, but says that all free software licenses are ethical. }~ + +While not exactly attuned to the "socio political" side of the Stallman agenda, Torvalds nevertheless appreciated one aspect of the agenda's underlying logic: no programmer writes error-free code. Even when users have no wish to adapt a program to their specific preferences, any program can use improvement. By sharing software, hackers put a program's improvement ahead of individual motivations such as greed or ego protection. + +Like many programmers of his generation, Torvalds had cut his teeth not on mainframe computers like the IBM 7094, but on a motley assortment of home-built computer systems. As a university student, Torvalds had made the step up from PC programming to Unix, using the university's MicroVAX. This ladder-like progression had given Torvalds a different perspective on the barriers to machine access. For Stallman, the chief barriers were bureaucracy and privilege. For Torvalds, the chief barriers were geography and the harsh Helsinki winter. Forced to trek across the University of Helsinki just to log in to his Unix account, Torvalds quickly began looking for a way to log in from the warm confines of his off-campus apartment. +={IBM 7094 computer;MicroVAX+1} + +Torvalds was using Minix, a lightweight non-free system developed as an instructional example by Dutch university professor Andrew Tanenbaum.~{ It was non-free in 1991. Minix is free software now. }~ It included the non-free Free University Compiler Kit, plus utilities of the sort that Tanenbaum had contemptuously invited Stallman in 1983 to write.~{ Tanenbaum describes Minix as an "operating system" in his book, Operating System Design and Implementation , but what the book discusses is only the part of the system that corresponds to the kernel of Unix. There are two customary usages of the term "operating system," and one of them is what is called the "kernel" in Unix terminology. But that's not the only terminological complication in the subject. That part of Minix consists of a microkernel plus servers that run on it, a design of the same kind as the GNU Hurd plus Mach. The microkernel plus servers are comparable to the kernel of Unix. But when that book says "the kernel," it refers to the microkernel only. See Andrew Tanenbaum, Operating System Design and Implementation , 1987. }~ +={Minix operating system+2;Unix operating system:Minix and;Tanenbaum, Andrew} + +Minix fit within the memory confines of Torvalds' 386 PC, but it was intended more to be studied than used. The Minix system also lacked the facility of terminal emulation, which would mimic a typical display terminal and thus enable Torvalds to log in to the MicroVAX from home. + +Early in 1991, Torvalds began writing a terminal emulation program. He used Minix to develop his emulator, but the emulator didn't run on Minix; it was a stand-alone program. Then he gave it features to access disk files in Minix's file system. Around then, Torvalds referred to his evolving work as the "GNU/Emacs of terminal emulation programs."~{ See Linus Torvalds and David Diamond, Just For Fun: The Story of an Accidental Revolutionary (Harper Collins Publishers, Inc., 2001): 78. }~ + +Since Minix lacked many important features. Torvalds began extending his terminal emulator into a kernel comparable to that of Minix, except that it was monolithic. Feeling ambitious, he solicited a Minix newsgroup for copies of the POSIX standards, the specifications for a Unix-compatible kernel.~{ POSIX was subsequently extended to include specifications for many command-line features, but that did not exist in 1991. }~ A few weeks later, having put his kernel together with some GNU programs and adapted them to work with it, Torvalds was posting a message reminiscent of Stallman's original 1983 GNU posting: + +_1 Hello everybody out there using minix- + +_1 I'm doing a (free) operating system (just a hobby, won't be big and professional like gnu) for 386 (486) AT clones. This has been brewing since April, and is starting to get ready. I'd like any feedback on things people like/dislike in minix, as my OS resembles it somewhat (same physical layout of the file-system (due to practical reasons) among other things). I've currently ported bash (1.08) and gcc(1.40)...~{ Ibid, p. 85. }~ + +The posting drew a smattering of responses and within a month, Torvalds had posted a 0.01 version of his kernel - i.e., the earliest possible version fit for outside review - on an Internet FTP site. In the course of doing so, Torvalds had to come up with a name for the new kernel. On his own PC hard drive, Torvalds had saved the program as Linux, a name that paid its respects to the software convention of giving each Unix variant a name that ended with the letter X. Deeming the name too "egotistical," Torvalds changed it to Freax, only to have the FTP site manager change it back. +={Freax} + +Torvalds said he was writing a free operating system, and his comparing it with GNU shows he meant a complete system. However, what he actually wrote was a kernel, pure and simple. Torvalds had no need to write more than the kernel because, as he knew, the other needed components were already available, thanks to the developers of GNU and other free software projects. Since the GNU Project wanted to use them all in the GNU system, it had perforce made them work together. While Torvalds continued developing the kernel, he (and later his collaborators) made those programs work with it too. + +Initially, Linux was not free software: the license it carried did not qualify as free, because it did not allow commercial distribution. Torvalds was worried that some company would swoop in and take Linux away from him. However, as the growing GNU/Linux combination gained popularity, Torvalds saw that sale of copies would be useful for the community, and began to feel less worried about a possible takeover.~{ Ibid, p. 94-95. }~ This led him to reconsider the licensing of Linux. + +Neither compiling Linux with GCC nor running GCC with Linux required him legally to release Linux under the GNU GPL, but Torvalds' use of GCC implied for him a certain obligation to let other users borrow back. As Torvalds would later put it: "I had hoisted myself up on the shoulders of giants."~{ Ibid, p. 95-97. }~ Not surprisingly, he began to think about what would happen when other people looked to him for similar support. A decade after the decision, Torvalds echoes the Free Software Foundation's Robert Chassell when he sums up his thoughts at the time: +={C Compiler (GNU):Linux development and+3;GNU C Compiler (GCC):Linux development and;GCC (GNU C Compiler):Linux development and}} + +_1 You put six months of your life into this thing and you want to make it available and you want to get something out of it, but you don't want people to take advantage of it. I wanted people to be able to see [Linux], and to make changes and improvements to their hearts' content. But I also wanted to make sure that what I got out of it was to see what they were doing. I wanted to always have access to the sources so that if they made improvements, I could make those improvements myself.~{ See Linus Torvalds and David Diamond, Just For Fun: The Story of an Accidental Revolutionary (Harper Collins Publishers, Inc., 2001): 94-95. }~ + +When it was time to release the 0.12 version of Linux, the first to operate fully with GCC, Torvalds decided to throw his lot in with the free software movement. He discarded the old license of Linux and replaced it with the GPL. Within three years, Linux developers were offering release 1.0 of Linux, the kernel; it worked smoothly with the almost complete GNU system, composed of programs from the GNU Project and elsewhere. In effect, they had completed the GNU operating system by adding Linux to it. The resulting system was basically GNU plus Linux. Torvalds and friends, however, referred to it confusingly as "Linux." + +By 1994, the amalgamated system had earned enough respect in the hacker world to make some observers from the business world wonder if Torvalds hadn't given away the farm by switching to the GPL in the project's initial months. In the first issue of /{Linux Journal}/, publisher Robert Young sat down with Torvalds for an interview. When Young asked the Finnish programmer if he felt regret at giving up private ownership of the Linux source code, Torvalds said no. "Even with 20/20 hindsight," Torvalds said, he considered the GPL "one of the very best design decisions" made during the early stages of the Linux project.~{ See Robert Young, "Interview with Linus, the Author of Linux," Linux Journal (March 1, 1994), \\ http://www.linuxjournal.com/article/2736. }~ +={Young, Robert} + +That the decision had been made with zero appeal or deference to Stallman and the Free Software Foundation speaks to the GPL's growing portability. Although it would take a couple of years to be recognized by Stallman, the explosiveness of Linux development conjured flashbacks of Emacs. This time around, however, the innovation triggering the explosion wasn't a software hack like Control-R but the novelty of running a Unix-like system on the PC architecture. The motives may have been different, but the end result certainly fit the ethical specifications: a fully functional operating system composed entirely of free software. +={Control-R (^R)} + +As his initial email message to the comp.os.minix newsgroup indicates, it would take a few months before Torvalds saw Linux as anything more than a holdover until the GNU developers delivered on the Hurd kernel. As far as Torvalds was concerned, he was simply the latest in a long line of kids taking apart and reassembling things just for fun. Nevertheless, when summing up the runaway success of a project that could have just as easily spent the rest of its days on an abandoned computer hard drive, Torvalds credits his younger self for having the wisdom to give up control and accept the GPL bargain. "I may not have seen the light," writes Torvalds, reflecting on Stallman's 1991 Polytechnic University speech and his subsequent decision to switch to the GPL. "But I guess something from his speech sunk in."~{ See Linus Torvalds and David Diamond, Just For Fun: The Story of an Accidental Revolutionary (Harper Collins Publishers, Inc., 2001): 59. }~ +={HURD kernel} + +1~ Chapter 10 - GNU/Linux +={GNU/Linux+45;Linux+45;Stallman, Richard M.:GNU Linux+46} + +By 1993, the free software movement was at a crossroads. To the optimistically inclined, all signs pointed toward success for the hacker culture. /{Wired}/ magazine, a funky, new publication offering stories on data encryption, Usenet, and software freedom, was flying off magazine racks. The Internet, once a slang term used only by hackers and research scientists, had found its way into mainstream lexicon. Even President Clinton was using it. The personal computer, once a hobbyist's toy, had grown to full-scale respectability, giving a whole new generation of computer users access to hacker-built software. And while the GNU Project had not yet reached its goal of a fully intact, free GNU operating system, users could already run the GNU/Linux variant. +={Internet+3;Wired magazine;PCs (personal computers)+2;personal computers (PCs)+2} + +Any way you sliced it, the news was good, or so it seemed. After a decade of struggle, hackers and hacker values were finally gaining acceptance in mainstream society. People were getting it. + +Or were they? To the pessimistically inclined, each sign of acceptance carried its own troubling countersign. Sure, being a hacker was suddenly cool, but was cool good for a community that thrived on alienation? Sure, the White House was saying nice things about the Internet, even going so far as to register its own domain name, white-house.gov, *** but it was also meeting with the companies, censorship advocates, and law-enforcement officials looking to tame the Internet's Wild West culture. Sure, PCs were more powerful, but in commoditizing the PC marketplace with its chips, Intel had created a situation in which proprietary software vendors now held the power. For every new user won over to the free software cause via GNU/Linux, hundreds, perhaps thousands, were booting up Microsoft Windows for the first time. GNU/Linux had only rudimentary graphical interfaces, so it was hardly user-friendly. In 1993, only an expert could use it. The GNU Project's first attempt to develop a graphical desktop had been abortive. +={Intel} + +Then there was the political situation. Copyrighting of user interfaces was still a real threat - the courts had not yet rejected the idea. Meanwhile, patents on software algorithms and features were a growing danger that threatened to spread to other countries. + +Finally, there was the curious nature of GNU/Linux itself. Unrestricted by legal disputes (such as BSD faced), GNU/Linux's high-speed evolution had been so unplanned, its success so accidental, that programmers closest to the software code itself didn't know what to make of it. More compilation album than unified project, it was comprised of a hacker medley of greatest hits: everything from GCC, GDB, and glibc (the GNU Project's newly developed C Library) toX (a Unix-based graphic user interface developed by MIT's Laboratory for Computer Science) to BSD-developed tools such as BIND (the Berkeley Internet Naming Daemon, which lets users substitute easy-to-remember Internet domain names for numeric IP addresses) and TCP/IP. In addition, it contained the Linux kernel - itself designed as a replacement for Minix. Rather than developing a new operating system, Torvalds and his rapidly expanding Linux development team had plugged their work into this matrix. As Torvalds himself would later translate it when describing the secret of his success: "I'm basically a very lazy person who likes to take credit for things other people actually do."~{ Torvalds has offered this quote in many different settings. To date, however, the quote's most notable appearance is in the Eric Raymond essay, "The Cathedral and the Bazaar" (May, 1997), \\ http://www.catb.org/~esr/writings/cathedral-bazaar/. }~ +={BIND (Berkely Internet Naming Daemon);Berkely Internet Naming Daemon (BIND);C programming language:glibc;GNU Debugger (GDB):Linux and;GDB (GNU Debugger): Linux and;glibc (GNU C Library);GNU C Library (glibc);kernel (Linux);X graphic user interface;Laboratory for Computer Science:X, developing;Minix operating system:kernel, used for Linux;TCP/IP;Torvalds, Linus:Minix, reworking for Linux+2} + +Such laziness, while admirable from an efficiency perspective, was troubling from a political perspective. For one thing, it underlined the lack of an ideological agenda on Torvalds' part. Unlike the GNU developers, Torvalds hadn't built his kernel out of a desire to give his fellow hackers freedom; he'd built it to have something he himself could play with. So what exactly was the combined system, and which philosophy would people associate it with? Was it a manifestation of the free software philosophy first articulated by Stallman in the /{GNU Manifesto}/? Or was it simply an amalgamation of nifty software tools that any user, similarly motivated, could assemble on his own home system? +={GNU Manifesto} + +By late 1993, a growing number of GNU/Linux users had begun to lean toward the latter definition and began brewing private variations on the theme. They began to develop various "distributions" of GNU/Linux and distribute them, sometimes gratis, sometimes for a price. The results were spotty at best. + +"This was back before Red Hat and the other commercial distributions," remembers Ian Murdock, then a computer science student at Purdue University. "You'd flip through Unix magazines and find all these business card-sized ads proclaiming 'Linux.' Most of the companies were fly-by-night operations that saw nothing wrong with slipping a little of their own [proprietary] source code into the mix." +={Murdock, Ian+38;Red Hat Inc.;Purdue University} + +Murdock, a Unix programmer, remembers being "swept away" by GNU/Linux when he first downloaded and installed it on his home PC system. "It was just a lot of fun," he says. "It made me want to get involved." The explosion of poorly built distributions began to dampen his early enthusiasm, however. Deciding that the best way to get involved was to build a version free of additives, Murdock set about putting a list of the best free software tools available with the intention of folding them into his own distribution. "I wanted something that would live up to the Linux name," Murdock says. + +In a bid to "stir up some interest," Murdock posted his intentions on the Internet, including Usenet's comp.os.linux newsgroup. One of the first responding email messages was from rms@ai.mit.edu. As a hacker, Murdock instantly recognized the address. It was Richard M. Stallman, founder of the GNU Project and a man Murdock knew even back then as "the hacker of hackers." Seeing the address in his mail queue, Murdock was puzzled. Why on Earth would Stallman, a person leading his own operating-system project, care about Murdock's gripes over "Linux" distributions? + +Murdock opened the message. + +"He said the Free Software Foundation was starting to look closely at Linux and that the FSF was interested in possibly doing a Linux [sic] system, too. Basically, it looked to Stallman like our goals were in line with their philosophy." +={Free Software Foundation (FSF):Linux and+3} + +Not to over dramatize, the message represented a change in strategy on Stallman's part. Until 1993, Stallman had been content to keep his nose out of Linux affairs. After first hearing of the new kernel, Stallman asked a friend to check its suitability. Recalls Stallman, "Here ported back that the software was modeled after System V, which was the inferior version of Unix. He also told me it wasn't portable." +={System V} + +The friend's report was correct. Built to run on 386-based machines, Linux was firmly rooted to its low-cost hardware platform. What the friend failed to report, however, was the sizable advantage Linux enjoyed as the only free kernel in the marketplace. In other words, while Stallman spent the next year and a half listening to progress reports from the Hurd developer, reporting rather slow progress, Torvalds was winning over the programmers who would later uproot and replant Linux and GNU onto new platforms. + +By 1993, the GNU Project's failure to deliver a working kernel was leading to problems both within the GNU Project and in the free software movement at large. A March, 1993, /{Wired}/ magazine article by Simson Garfinkel described the GNU Project as "bogged down" despite the success of the project's many tools.~{ See Simson Garfinkel, "Is Stallman Stalled?" /{Wired}/ (March, 1993). }~ Those within the project and its nonprofit adjunct, the Free Software Foundation, remember the mood as being even worse than Garfinkel's article let on. "It was very clear, at least to me at the time, that there was a window of opportunity to introduce a new operating system," says Chassell. "And once that window was closed, people would become less interested. Which is in fact exactly what happened."~{ Chassell's concern about there being a 36-month "window" for a new operating system is not unique to the GNU Project. During the early 1990s, free software versions of the Berkeley Software Distribution were held up by Unix System Laboratories' lawsuit restricting the release of BSD-derived software. While many users consider BSD offshoots such as FreeBSD and OpenBSD to be demonstrably superior to GNU/Linux both in terms of performance and security, the number of FreeBSD and OpenBSD users remains a fraction of the total GNU/Linux user population. To view a sample analysis of the relative success of GNU/Linux in relation to other free software operating systems, see the essay by New Zealand hacker, Liam Greenwood, "Why is Linux Successful" (1999), \\ http://www.freebsddiary.org/linux.php. }~ +={Garfinkel, Simson;GNU Project:kernel;Wired magazine:GNU Project and} + +Much has been made about the GNU Project's struggles during the 1990-1993 period. While some place the blame on Stallman for those struggles, Eric Raymond, an old friend of Stallman's who supported the GNU Project lukewarmly, says the problem was largely institutional. "The FSF got arrogant," Raymond says. "They moved away from the goal of doing a production-ready operating system to doing operating-system research." Even worse, "They thought nothing outside the FSF could affect them." +={HURD kernel+4;Raymond, Eric} + +Murdock adopts a more charitable view. "I think part of the problem is they were a little too ambitious and they threw good money after bad," he says. "Micro-kernels in the late 80s and early 90s were a hot topic. Unfortunately, that was about the time that the GNU Project started to design their kernel. They ended up with a lot of baggage and it would have taken a lot of backpedaling to lose it." + +Stallman responds, "Although the emotions Raymond cites come from his imagination, he's right about one cause of the Hurd's delay:the Hurd developer several times redesigned and rewrote large parts of the code based on what he had learned, rather than trying to make the Hurd run as soon as possible. It was good design practice, but it wasn't the right practice for our goal: to get something working ASAP." + +Stallman cites other issues that also caused delay. The Lotus and Apple lawsuits claimed much of his attention; this, coupled with hand problems that prevented him from typing for three years, mostly excluded Stallman from programming. Stallman also cites poor communication between various portions of the GNU Project. "We had to do a lot of work to get the debugging environment to work," he recalls." And the people maintaining GDB at the time were not that cooperative." They had given priority to supporting the existing platforms of GDB's current users, rather than to the overall goal of a complete GNU system. + +Most fundamentally, however, Stallman says he and the Hurd developers underestimated the difficulty of developing the Unix kernel facilities on top of the Mach microkernel. "I figured, OK, the [Mach]part that has to talk to the machine has already been debugged," Stallman says, recalling the Hurd team's troubles in a 2000 speech. "With that head start, we should be able to get it done faster. But instead, it turned out that debugging these asynchronous multi-threaded programs was really hard. There were timing bugs that would clobber the files, and that's no fun. The end result was that it took many, many years to produce a test version."~{ See Maui High Performance Computing Center Speech. In subsequent emails, I asked Stallman what exactly he meant by the term "timing bugs." Stallman said "timing errors" was a better way to summarize the problem and offered an elucidating technical information of how a timing error can hamper an operating system's performance: \\ "Timing errors" occur in an asynchronous system where jobs done in parallel can theoretically occur in any order, and one particular order leads to problems. \\ Imagine that program A does X, and program B does Y, where both X and Y are short routines that examine and update the same data structure. Nearly always the computer will do X before Y, or do Y before X, and then there will be no problem. On rare occasions, by chance, the scheduler will let program A run until it is in the middle of X, and then run B which will do Y. Thus, Y will be done while Xis half-done. Since they are updating the same data structure, they will interfere. For instance, perhaps X has already examined the data structure, and it won't notice that there was a change. There will be an unreproducible failure, unreproducible because it depends on chance factors (when the scheduler decides to run which program and how long). \\ The way to prevent such a failure is to use a lock to make sure X and Y can't run at the same time. Programmers writing asynchronous systems know about the general need for locks, but sometimes they overlook the need for a lock in a specific place or on a specific data structure. Then the program has a timing error. }~ + +Over time, the growing success of GNU together with Linux made it clear that the GNU Project should get on the train that was leaving and not wait for the Hurd. Besides, there were weaknesses in the community surrounding GNU/Linux. Sure, Linux had been licensed under the GPL, but as Murdock himself had noted, the desire to treat GNU/Linux as a purely free software operating system was far from unanimous. By late 1993, the total GNU/Linux user population had grown from a dozen or so enthusiasts to somewhere between 20,000 and 100,000.~{ GNU/Linux user-population numbers are sketchy at best, which is why I've provided such a broad range. The 100,000 total comes from the Red Hat "Milestones" site, \\ http://www.redhat.com/about/corporate/milestones.html. }~ What had once been a hobby was now a marketplace ripe for exploitation, and some developers had no objection to exploiting it with non-free software. Like Winston Churchill watching Soviet troops sweep into Berlin, Stallman felt an understandable set of mixed emotions when it came time to celebrate the GNU/Linux "victory."~{ I wrote this Winston Churchill analogy before Stallman himself sent me his own unsolicited comment on Churchill: \\ World War II and the determination needed to win it was a very strong memory as I was growing up. Statements such as Churchill's, "We will fight them in the landing zones, we will fight them on the beaches... we will never surrender," have always resonated for me. }~ + +Although late to the party, Stallman still had clout. As soon as the FSF announced that it would lend its money and moral support to Murdock's software project, other offers of support began rolling in. Murdock dubbed the new project Debian - a compression of his and his wife, Deborah's, names - and within a few weeks was rolling out the first distribution. "[Richard's support] catapulted Debian almost overnight from this interesting little project to something people within the community had to pay attention to," Murdock says. +={Debian+19} + +In January of 1994, Murdock issued the +/{Debian Manifesto}/. Written in the spirit of Stallman's /{GNU Manifesto}/ from a decade before, it explained the importance of working closely with the Free Software Foundation. Murdock wrote: +={Debian Manifesto+3;Free Software Foundation (FSF):Debian Manifesto and;GNU Manifesto:Debian Manifesto and} + +_1 The Free Software Foundation plays an extremely important role in the future of Debian. By the simple fact that they will be distributing it, a message is sent to the world that Linux [sic] is not a commercial product and that it never should be, but that this does not mean that Linux will never be able to compete commercially. For those of you who disagree, I challenge you to rationalize the success of GNU Emacs and GCC, which are not commercial software but which have had quite an impact on the commercial market regardless of that fact. + +_1 The time has come to concentrate on the future of Linux[sic] rather than on the destructive goal of enriching one-self at the expense of the entire Linux community and its future. The development and distribution of Debian may not be the answer to the problems that I have outlined in the /{Manifesto}/, but I hope that it will at least attract enough attention to these problems to allow them to be solved.~{ See Ian Murdock, /{A Brief History of Debian}/, (January 6, 1994): Appendix A, "The Debian Manifesto," \\ http://www.debian.org/doc/manuals/project-history/ap-manifesto.en.html. }~ + +Shortly after the /{Manifesto's}/ release, the Free Software Foundation made its first major request. Stallman wanted Murdock to call its distribution "GNU/Linux." At first, Stallman proposed the term "Lignux" - combining the names Linux and GNU - but the initial reaction was very negative, and this convinced Stallman to go with the longer but less criticized GNU/Linux. +={Lignux (Linux with GNU)} + +Some dismissed Stallman's attempt to add the "GNU" prefix as a belated quest for credit, never mind whether it was due, but Murdock saw it differently. Looking back, Murdock saw it as an attempt to counteract the growing tension between the GNU Project's developers and those who adapted GNU programs to use with the Linux kernel. "There was a split emerging," Murdock recalls. "Richard was concerned." +={C programming language:glibc+3;glibc (GNU C Library)+3;GNU C Library (glibc)+3} + +By 1990, each GNU program had a designated maintainer-in-charge. Some GNU programs could run on many different systems, and users often contributed changes to port them to another system. Often these users knew only that one system, and did not consider how to keep the code clean for other systems. To add support for the new system while keeping the code comprehensible, so it could be maintained reliably for all systems, then required rewriting much of the changes. The maintainer-in-charge had the responsibility to critique the changes and tell their user-authors how to redo parts of the port. Generally they were eager to do this so that their changes would be integrated into the standard version. Then the maintainer-in-charge would edit in there worked changes, and take care of them in future maintenance. For some GNU programs, this had happened dozens of times for dozens of different systems. + +The programmers who adapted various GNU programs to work with the kernel Linux followed this common path: they considered only their own platform. But when the maintainers-in-charge asked them to help clean up their changes for future maintenance, several of them were not interested. They did not care about doing the correct thing, or about facilitating future maintenance of the GNU packages they had adapted. They cared only about their own versions and were inclined to maintain them as forks. + +In the hacker world, forks are an interesting issue. Although the hacker ethic permits a programmer to do anything he wants with a given program's source code, it is considered correct behavior to offer to work with the original developer to maintain a joint version. Hackers usually find it useful, as well as proper, to pour their improvements into the program's principal version. A free software license gives every hacker the right to fork a program, and sometimes it is necessary, but doing so without need or cause is considered somewhat rude. +={forks (code)+3;tree (source code)} + +As leader of the GNU Project, Stallman had already experienced the negative effects of a software fork in 1991. Says Stallman, "Lucid hired several people to write improvements to GNU Emacs, meant to be contributions to it; but the developers did not inform me about the project. Instead they designed several new features on their own. As you might expect, I agreed with some of their decisions and disagreed with others. They asked me to incorporate all their code, but when I said I wanted to use about half of it, they declined to help me adapt that half to work on its own. I had to do it on my own." The fork had given birth to a parallel version, Lucid Emacs, and hard feelings all around.~{ Jamie Zawinski, a former Lucid programmer who would go on to head the Mozilla development team, has a web site that documents the Lucid/GNU Emacs fork, titled, "The Lemacs/FSFmacs Schism.", at \\ http://www.jwz.org/doc/lemacs.html. Stallman's response to those accusations is in \\ http://stallman.org/articles/xemacs.origin. }~ +={Emacs text editor:Lucid software company and;GNU Emacs:Lucid software company and;Lucid software company} + +Now programmers had forked several of the principal GNU packages at once. At first, Stallman says he considered the forks to be a product of impatience. In contrast to the fast and informal dynamics of the Linux team, GNU source-code maintainers tended to be slower and more circumspect in making changes that might affect a program's long-term viability. They also were unafraid of harshly critiquing other people's code. Over time, however, Stallman began to sense that there was an underlying lack of awareness of the GNU Project and its objectives when reading Linux developers' emails. + +"We discovered that the people who considered themselves 'Linux users' didn't care about the GNU Project," Stallman says. "They said, 'Why should I bother doing these things? I don't care about the GNU Project. It [the program]'s working for me. It's working for us Linux users, and nothing else matters to us.' And that was quite surprising, given that people were essentially using a variant of the GNU system, and they cared so little. They cared less than anybody else about GNU." Fooled by their own practice of calling the combination "Linux," they did not realize that their system was more GNU than Linux. + +For the sake of unity, Stallman asked the maintainers-in-charge to do the work which normally the change authors should have done. In most cases this was feasible, but not in glibc. Short for GNU C Library, glibc is the package that all programs use to make "system calls" directed at the kernel, in this case Linux. User programs on a Unix-like system communicate with the kernel only through the C library. + +The changes to make glibc work as a communication channel between Linux and all the other programs in the system were major and ad-hoc, written without attention to their effect on other platforms. For the glibc maintainer-in-charge, the task of cleaning them up was daunting. Instead the Free Software Foundation paid him to spend most of a year reimplementing these changes from scratch, to make glibc version 6 work "straight out of the box" in GNU/Linux. + +Murdock says this was the precipitating cause that motivated Stallman to insist on adding the GNU prefix when Debian rolled out its software distribution. "The fork has since converged. Still, at the time, there was a concern that if the Linux community saw itself as a different thing as the GNU community, it might be a force for disunity." + +While some viewed it as politically grasping to describe the combination of GNU and Linux as a "variant" of GNU, Murdock, already sympathetic to the free software cause, saw Stallman's request to call Debian's version GNU/Linux as reasonable. "It was more for unity than for credit," he says. + +Requests of a more technical nature quickly followed. Although Murdock had been accommodating on political issues, he struck a firmer pose when it came to the design and development model of the actual software. What had begun as a show of solidarity soon became a running disagreement. + +"I can tell you that I've had my share of disagreements with him," says Murdock with a laugh. "In all honesty Richard can be a fairly difficult person to work with." The principal disagreement was over debugging. Stallman wanted to include debugging information in all executable programs, to enable users to immediately investigate any bugs they might encounter. Murdock thought this would make the system files too big and interfere with distribution. Neither was willing to change his mind. + +In 1996, Murdock, following his graduation from Purdue, decided to hand over the reins of the growing Debian project. He had already been ceding management duties to Bruce Perens, the hacker best known for his work on Electric Fence, a Unix utility released under the GPL. Perens, like Murdock, was a Unix programmer who had become enamored of GNU/Linux as soon as the operating system's Unix-like abilities became manifest. Like Murdock, Perens sympathized with the political agenda of Stallman and the Free Software Foundation, albeit from afar. +={Electric Fence Unix utility; Perens, Bruce+3} + +"I remember after Stallman had already come out with the /{GNU Manifesto}/, GNU Emacs, and GCC, I read an article that said he was working as a consultant for Intel," says Perens, recalling his first brush with Stallman in the late 1980s. "I wrote him asking how he could be advocating free software on the one hand and working for Intel on the other. He wrote back saying, 'I work as a consultant to produce free-software.' He was perfectly polite about it, and I thought his answer made perfect sense." + +As a prominent Debian developer, however, Perens regarded Murdock's design battles with Stallman with dismay. Upon assuming leadership of the development team, Perens says he made the command decision to distance Debian from the Free Software Foundation. "I decided we did not want Richard's style of micro-management," he says. + +According to Perens, Stallman was taken aback by the decision but had the wisdom to roll with it. "He gave it some time to cool off and sent a message that we really needed a relationship. He requested that we call it GNU/Linux and left it at that. I decided that was fine. I made the decision unilaterally. Everybody breathed a sigh of relief." + +Over time, Debian would develop a reputation as the hacker's version of GNU/Linux, alongside Slackware, another popular distribution founded during the same 1993-1994 period. However, Slackware contained some non-free programs, and Debian after its separation from GNU began distributing non-free programs too.~{ Debian Buzz in June 1996 contained non-free Netscape 3.01 in its Contrib section. }~ Despite labeling them as "non-free" and saying that they were "not officially part of Debian," proposing these programs to the user implied a kind of endorsement for them. As the GNU Project became aware of these policies, it came to recognize that neither Slackware nor Debian was a GNU/Linux distro it could recommend to the public. +={Gilmore, John; Young, Robert+2;Red Hat Inc.;Teimann, Michael;Slackware} + +Outside the realm of hacker-oriented systems, however, GNU/Linux was picking up steam in the commercial Unix marketplace. In North Carolina, a Unix company billing itself as Red Hat was revamping its business to focus on GNU/Linux. The chief executive officer was Robert Young, the former /{Linux Journal}/ editor who in 1994 had put the question to Linus Torvalds, asking whether he had any regrets about putting the kernel under the GPL. To Young, Torvalds' response had a "profound" impact on his own view toward GNU/Linux. Instead of looking for a way to corner the GNU/Linux market via traditional software tactics, Young began to consider what might happen if a company adopted the same approach as Debian - i.e., building an operating system completely out of free software parts. Cygnus Solutions, the company founded by Michael Tiemann and John Gilmore in 1990, was already demonstrating the ability to sell free software based on quality and customizability. What if Red Hat took the same approach with GNU/Linux? + +"In the western scientific tradition we stand on the shoulders of giants," says Young, echoing both Torvalds and Sir Isaac Newton before him. "In business, this translates to not having to reinvent wheels as we go along. The beauty of [the GPL] model is you put your code into the public domain.~{ Young uses the term "public domain" loosely here. Strictly speaking, it means "not copyrighted." Code released under the GNU GPL cannot be in the public domain, since it must be copyrighted in order for the GNU GPL to apply. }~ If you're an independent software vendor and you're trying to build some application and you need a modem-dialer, well, why reinvent modem dialers? You can just steal PPP off of Red Hat [GNU/]Linux and use that as the core of your modem-dialing tool. If you need a graphic tool set, you don't have to write your own graphic library. Just download GTK. Suddenly you have the ability to reuse the best of what went before. And suddenly your focus as an application vendor is less on software management and more on writing the applications specific to your customer's needs." However, Young was no free software activist, and readily included non-free programs in Red Hat's GNU/Linux system. + +Young wasn't the only software executive intrigued by the business efficiencies of free software. By late 1996, most Unix companies were starting to wake up and smell the brewing source code. The GNU/Linux sector was still a good year or two away from full commercial breakout mode, but those close enough to the hacker community could feel it: something big was happening. The Intel 386 chip, the Internet, and the World Wide Web had hit the marketplace like a set of monster waves; free software seemed like the largest wave yet. + +For Ian Murdock, the wave seemed both a fitting tribute and a fitting punishment for the man who had spent so much time giving the free software movement an identity. Like many Linux aficionados, Murdock had seen the original postings. He'd seen Torvalds' original admonition that Linux was "just a hobby." He'd also seen Torvalds' admission to Minix creator Andrew Tanenbaum: "If the GNU kernel had been ready last spring, I'd not have bothered to even start my project."~{ This quote is taken from the much publicized Torvalds-Tanenbaum "flame war" following the initial release of Linux. In the process of defending his choice of a non-portable monolithic kernel design, Torvalds says he started working on Linux as a way to learn more about his new 386 PC. "If the GNU kernel had been ready last spring, I'd not have bothered to even start my project." See Chris DiBona et al., /{Open Sources}/ (O'Reilly & Associates, Inc., 1999): 224. }~ Like many, Murdock knew that some opportunities had been missed. He also knew the excitement of watching new opportunities come seeping out of the very fabric of the Internet. +={Tanenbaum, Andrew} + +"Being involved with Linux in those early days was fun," recalls Murdock. "At the same time, it was something to do, something to pass the time. If you go back and read those old [comp.os.minix]exchanges, you'll see the sentiment: this is something we can play with until the Hurd is ready. People were anxious. It's funny, but in a lot of ways, I suspect that Linux would never have happened if the Hurd had come along more quickly." + +By the end of 1996, however, such "what if" questions were already moot, because Torvalds' kernel had gained a critical mass of users. The 36-month window had closed, meaning that even if the GNU Project had rolled out its Hurd kernel, chances were slim anybody outside the hard-core hacker community would have noticed. Linux, by filling the GNU system's last gap, had achieved the GNU Project's goal of producing a Unix-like free software operating system. However, most of the users did not recognize what had happened: they thought the whole system was Linux, and that Torvalds had done it all. Most of them installed distributions that came with non-free software; with Torvalds as their ethical guide, they saw no principled reason to reject it. Still, a precarious freedom was available for those that appreciated it. +={HURD kernel} + +1~ Chapter 11 - Open Source +={GNU Project:open source movement and+59;open source+59;Stallman, Richard M.:open source and+59} + +[RMS: In this chapter only, I have deleted some quotations. The material deleted was about open source and didn't relate to my life or my work.] + +In November, 1995, Peter Salus, a member of the Free Software Foundation and author of the 1994 book, /{A Quarter Century of Unix}/, issued a call for papers to members of the GNU Project's "system-discuss" mailing list. Salus, the conference's scheduled chairman, wanted to tip off fellow hackers about the upcoming Conference on Freely Redistributable Software in Cambridge, Massachusetts. Slated for February, 1996, and sponsored by the Free Software Foundation, the event promised to be the first engineering conference solely dedicated to free software and, in a show of unity with other free software programmers, welcomed papers on "any aspect of GNU, Linux, NetBSD, 386BSD, FreeBSD, Perl, Tcl/tk, and other tools for which the code is accessible and redistributable." Salus wrote: +={Free Software Foundation (FSF);FSF (Free Software Foundation);FreeBSD;Conference on Freely Redistributable Software+1;Linux;NetBSD;Perl programming language;386BSD;Salus, Peter+4} + +_1 Over the past 15 years, free and low-cost software has become ubiquitous. This conference will bring together implementers of several different types of freely redistributable software and publishers of such software (on various media). There will be tutorials and refereed papers, as well as keynotes by Linus Torvalds and Richard Stallman.~{ See Peter Salus, "FYI-Conference on Freely Redistributable Software, 2/2, Cambridge" (1995) (archived by Terry Winograd), \\ http://bat8.inria.fr/~lang/hotlist/free/licence/fsf96/call-for-papers.html. }~ + +Among the recipients of Salus' email was conference committee member Eric S. Raymond. Although not the leader of a project or company like the various other members of the list, Raymond had built a tidy reputation within the hacker community for some software projects and as editor of /{The New Hacker's Dictionary}/, a greatly enlarged version of /{The Hacker's Dictionary}/ published a decade earlier by Guy Steele. +={New Hacker Dictionary, The;Raymond, Eric:open source and+56} + +For Raymond, the 1996 conference was a welcome event. Although he did not thoroughly support the free software movement's ideas, he had contributed to some GNU programs, in particular to GNU Emacs. Those contributions stopped in 1992, when Raymond demanded authority to make changes in the official GNU version of GNU Emacs without discussing them with Stallman, who was directly in charge of Emacs development. Stallman rejected the demand, and Raymond accused Stallman of "micro-management." "Richard kicked up a fuss about my making unauthorized modifications when I was cleaning up the Emacs LISP libraries," Raymond recalls. "It frustrated me so much that I decided I didn't want to work with him anymore." + +Despite the falling out, Raymond remained active in the free software community. So much so that when Salus suggested a conference pairing Stallman and Torvalds as keynote speakers, Raymond eagerly seconded the idea. With Stallman representing the older, wiser contingent of ITS/Unix hackers and Torvalds representing the younger, more energetic crop of Linux hackers, the pairing indicated a symbolic show of unity that could only be beneficial, especially to ambitious younger (i.e., below 40) hackers such as Raymond. "I sort of had afoot in both camps," Raymond says. + +By the time of the conference, the tension between those two camps had become palpable. Both groups had one thing in common, though:the conference was their first chance to meet the Finnish /{wunderkind}/ in the flesh. Surprisingly, Torvalds proved himself to be a charming, affable speaker. Possessing only a slight Swedish accent, Torvalds surprised audience members with his quick, self-effacing wit.~{ Although Linus Torvalds is Finnish, his mother tongue is Swedish. "The Rampantly Unofficial Linus FAQ" at \\ http://catb.org/~esr/faqs/linus/ offers a brief explanation:Finland has a significant (about 6%) Swedish-speaking minority population. They call themselves finlands svensk or finlands svenskar and consider themselves Finns; many of their families have lived in Finland for centuries. Swedish is one of Finland's two official languages. }~ + +Even more surprising, says Raymond, was Torvalds' equal willingness to take potshots at other prominent hackers, including the most prominent hacker of all, Richard Stallman. By the end of the conference, Torvalds' half-hacker, half-slacker manner was winning over older and younger conference-goers alike. + +"It was a pivotal moment," recalls Raymond. "Before 1996, Richard was the only credible claimant to being the ideological leader of the entire culture. People who dissented didn't do so in public. The person who broke that taboo was Torvalds." + +The ultimate breach of taboo would come near the end of the show. During a discussion on the growing market dominance of Microsoft Windows or some similar topic, Torvalds admitted to being a fan of Microsoft's PowerPoint slideshow software program. From the perspective of old-line software purists, it was like bragging about one's slaves at an abolitionist conference. From the perspective of Torvalds and his growing band of followers, it was simply common sense. Why shun convenient proprietary software programs just to make a point? They didn't agree with the point anyway. When freedom requires a sacrifice, those who don't care about freedom see the sacrifice as self-denial, rather than as a way to obtain something important. Being a hacker wasn't about self-denial, it was about getting the job done, and "the job," for them, was defined in practical terms. +={Windows (Microsoft);Microsoft Corporation+3;PowerPoint (Microsoft)+3;proprietary software:Torvalds, Linus and;Torvalds, Linus:PowerPoint and+3} + +"That was a pretty shocking thing to say," Raymond remembers. "Then again, he was able to do that, because by 1995 and 1996, he was rapidly acquiring clout." + +Stallman, for his part, doesn't remember any tension at the 1996conference; he probably wasn't present when Torvalds made that statement. But he does remember later feeling the sting of Torvalds' celebrated "cheekiness." "There was a thing in the Linux documentation which says print out the GNU coding standards and then tear them up," says Stallman, recalling one example. "When you look closely, what he disagreed with was the least important part of it, the recommendation for how to indent C code." + +"OK, so he disagrees with some of our conventions. That's fine, bu the picked a singularly nasty way of saying so. He could have just said,'Here's the way I think you should indent your code.' Fine. There should be no hostility there." + +For Raymond, the warm reception other hackers gave to Torvalds' comments confirmed a suspicion: the dividing line separating Linux developers from GNU developers was largely generational. Many Linux hackers, like Torvalds, had grown up in a world of proprietary software. They had begun contributing to free software without perceiving any injustice in non-free software. For most of them, nothing was at stake beyond convenience. Unless a program was technically inferior, they saw little reason to reject it on licensing issues alone. Some day hackers might develop a free software alternative to PowerPoint. Until then, why criticize PowerPoint or Microsoft; why not use it? + +This was an example of the growing dispute, within the free software community, between those who valued freedom as such, and those who mainly valued powerful, reliable software. Stallman referred to the two camps as political parties within the community, calling the former the "freedom party." The supporters of the other camp did not try to name it, so Stallman disparagingly called it the "bandwagon party" or the "success party," because many of them presented "more users" as the primary goal. + +In the decade since launching the GNU Project, Stallman had built up a fearsome reputation as a programmer. He had also built up a reputation for intransigence both in terms of software design and people management. This was partly true, but the reputation provided a convenient excuse that anyone could cite if Stallman did not do as he wished. The reputation has been augmented by mistaken guesses. + +For example, shortly before the 1996 conference, the Free Software Foundation experienced a full-scale staff defection. Brian Youmans, a current FSF staffer hired by Salus in the wake of the resignations, recalls the scene: "At one point, Peter [Salus] was the only staff member working in the office." The previous staff were unhappy with the executive director; as Bryt Bradley told her friends in December, 1995: + +_1 [name omitted] (the Executive Director of the FSF) decided to come back from Medical/Political Leave last week. The office staff (Gena Bean, Mike Drain, and myself) decided we could not work with her as our supervisor because of the many mistakes she had made in her job tasks prior to her taking a leave. Also, there had been numerous instances where individuals were threatened with inappropriate firing and there were many instances of what we felt were verbal abuse from her to ALL members of the office staff. We requested (many times) that she not come back as our supervisor, but stated that we were willing to work with her as a co-worker. Our requests were ignored. We quit. + +The executive director in question then gave Stallman an ultimatum: give her total autonomy in the office or she would quit. Stallman, as president of the FSF, declined to give her total control over its activities, so she resigned, and he recruited in Peter Salus to replace her. + +When Raymond, an outsider, learned that these people had left the FSF, he presumed Stallman was at fault. This provided confirmation for his theory that Stallman's personality was the cause of any and all problems in the GNU Project. + +Raymond had another theory: recent delays such as the Hurd and recent troubles such as the Lucid-Emacs schism reflected problems normally associated with software project management, not software code development. + +Shortly after the Freely Redistributable Software Conference, Raymond began working on his own pet software project, a mail utility called "fetchmail." Taking a cue from Torvalds, Raymond issued his program with a tacked-on promise to update the source code as early and as often as possible. When users began sending in bug reports and feature suggestions, Raymond, at first anticipating a tangled mess, found the resulting software surprisingly sturdy. Analyzing the success of the Torvalds approach, Raymond issued a quick analysis: using the Internet as his "petri dish" and the harsh scrutiny of the hacker community as a form of natural selection, Torvalds had created an evolutionary model free of central planning. +={fetchmail;FreeBSD;Conference on Freely Redistributable Software;Internet} + +What's more, Raymond decided, Torvalds had found a way around Brooks' Law. First articulated by Fred P. Brooks, manager of IBM's OS/360 project and author of the 1975 book, /{The Mythical Man-Month}/, Brooks' Law held that adding developers to a project only resulted in further project delays. Believing as most hackers that software, like soup, benefits from a limited number of cooks, Raymond sensed something revolutionary at work. In inviting more and more cooks into the kitchen, Torvalds had actually found a way to make the resulting software /{better}/.~{ Brooks' Law is the shorthand summary of the following quote taken from Brooks' book:Since software construction is inherently a systems effort - an exercise in complex interrelationships - communication effort is great, and it quickly dominates the decrease in individual task time brought about by partitioning. Adding more men then lengthens, not shortens, the schedule. See Fred P. Brooks, The Mythical Man-Month (Addison Wesley Publishing, 1995). }~ +={Brooks, Fred P.;Mythical Man-Month, The (Brooks)} + +Raymond put his observations on paper. He crafted them into a speech, which he promptly delivered before a group of friends and neighbors in Chester County, Pennsylvania. Dubbed "The Cathedral and the Bazaar," the speech contrasted the "Bazaar" style originated by Torvalds with the "Cathedral" style generally used by everyone else. +={Cathedral and the Bazaar, The (Raymond)+10;Linux Kongress+6} + +Raymond says the response was enthusiastic, but not nearly as enthusiastic as the one he received during the 1997 Linux Kongress, a gathering of GNU/Linux users in Germany the next spring. + +"At the Kongress, they gave me a standing ovation at the end of the speech," Raymond recalls. "I took that as significant for two reasons. For one thing, it meant they were excited by what they were hearing. For another thing, it meant they were excited even after hearing the speech delivered through a language barrier." + +Eventually, Raymond would convert the speech into a paper, also titled "The Cathedral and the Bazaar." The paper drew its name from Raymond's central analogy. Previously, programs were "cathedrals," impressive, centrally planned monuments built to stand the test of time. Linux, on the other hand, was more like "a great babbling bazaar," a software program developed through the loose decentralizing dynamics of the Internet. + +Raymond's paper associated the Cathedral style, which he and Stallman and many others had used, specifically with the GNU Project and Stallman, thus casting the contrast between development models as a comparison between Stallman and Torvalds. Where Stallman was his chosen example of the classic cathedral architect - i.e., a programming "wizard" who could disappear for 18 months and return with something like the GNU C Compiler - Torvalds was more like a genial dinner-party host. In letting others lead the Linux design discussion and stepping in only when the entire table needed a referee, Torvalds had created a development model very much reflective of his own laid-back personality. From Torvalds' perspective, the most important managerial task was not imposing control but keeping the ideas flowing. + +Summarized Raymond, "I think Linus's cleverest and most consequential hack was not the construction of the Linux kernel itself, but rather his invention of the Linux development model."~{ See Eric Raymond, "The Cathedral and the Bazaar" (1997). }~ + +If the paper's description of these two styles of development was perceptive, its association of the Cathedral model specifically with Stallman (rather than all the others who had used it, including Raymond himself) was sheer calumny. In fact, the developers of some GNU packages including the GNU Hurd had read about and adopted Torvalds' methods before Raymond tried them, though without analyzing them further and publicly championing them as Raymond's paper did. Thousands of hackers, reading Raymond's article, must have been led to a negative attitude towards GNU by this smear. + +In summarizing the secrets of Torvalds' managerial success, Raymond attracted the attention of other members of the free software community for whom freedom was not a priority. They sought to interest business in the use and development of free software, and to do so, decided to cast the issue in terms of the values that appeal to business: powerful, reliable, cheap, advanced. Raymond became the best-known proponent of these ideas, and they reached the management of Netscape, whose proprietary browser was losing market share to Microsoft's equally proprietary Internet Explorer. Intrigued by a speech by Raymond, Netscape executives took the message back to corporate headquarters. A few months later, in January, 1998, the company announced its plan to publish the source code of its flagship Navigator web browser in the hopes of enlisting hacker support in future development. +={Netscape+8;source code:Netscape+4} + +% ={Monterey (California);O'Reilly, Tim;O'Reilly & Associates} +% ={Apache web server;BIND (Berkely Internet Naming Daemon);Berkely Internet Naming Daemon (BIND);Wall, Larry;Perl programming language;Python programming language;sendmail Unix mail program} +% ={Mountain View (California);Netscape+8} + +When Netscape CEO Jim Barksdale cited Raymond's "Cathedral and the Bazaar" essay as a major influence upon the company's decision, the company instantly elevated Raymond to the level of hacker celebrity. He invited a few people including Larry Augustin, founder of VA Research which sold workstations with the GNU/Linux operating system pre-installed; Tim O'Reilly, founder of the publisher O'Reilly& Associates; and Christine Peterson, president of the Foresight Institute, a Silicon Valley think tank specializing in nano technology, to talk. "The meeting's agenda boiled down to one item: how to take advantage of Netscape's decision so that other companies might follow suit?" +={Augustin, Larry;Foresight Institute;VA Research;Peterson, Christine+4;Barksdale, Jim} + +Raymond doesn't recall the conversation that took place, but he does remember the first complaint addressed. Despite the best efforts of Stallman and other hackers to remind people that the word "free" in free software stood for freedom and not price, the message still wasn't getting through. Most business executives, upon hearing the term for the first time, interpreted the word as synonymous with "zero cost," tuning out any follow-up messages in short order. Until hackers found a way to get past this misunderstanding, the free software movement faced an uphill climb, even after Netscape. + +Peterson, whose organization had taken an active interest in advancing the free software cause, offered an alternative: "open source." + +Looking back, Peterson says she came up with the "open source" term while discussing Netscape's decision with a friend in the public relations industry. She doesn't remember where she came upon the term or if she borrowed it from another field, but she does remember her friend disliking the term.~{ See Malcolm Maclachlan, "Profit Motive Splits Open Source Movement," Tech-Web News (August 26, 1998), \\ http://www.techweb.com/article/showArticle?articleID=29102344. }~ + +At the meeting, Peterson says, the response was dramatically different. "I was hesitant about suggesting it," Peterson recalls. "I had no standing with the group, so started using it casually, not highlighting it as a new term." To Peterson's surprise, the term caught on. By the end of the meeting, most of the attendees, including Raymond, seemed pleased by it. + +Raymond says he didn't publicly use the term "open source" as a substitute for "free software" until a day or two after the Mozilla launch party, when O'Reilly had scheduled a meeting to talk about free-software. Calling his meeting "the Freeware Summit," O'Reilly says he wanted to direct media and community attention to the other deserving projects that had also encouraged Netscape to release Mozilla. "All these guys had so much in common, and I was surprised they didn't all know each other," says O'Reilly. "I also wanted to let the world know just how great an impact the free software culture had already made. People were missing out on a large part of the free-software tradition." +={Freeware Summit;O'Reilly, Tim:open source and+8} + +In putting together the invite list, however, O'Reilly made a decision that would have long-term political consequences. He decided to limit the list to west-coast developers such as Wall, Eric Allman, creator of send mail, and Paul Vixie, creator of BIND. There were exceptions, of course: Pennsylvania-resident Raymond, who was already in town thanks to the Mozilla launch, earned an quick invite. So did Virginia-resident Guido van Rossum, creator of Python. "Frank Willison, my editor in chief and champion of Python within the company, invited him without first checking in with me," O'Reilly recalls. "I was happy to have him there, but when I started, it really was just a local gathering." +={van Rossum, Guido;Python programming language;BIND (Berkely Internet Naming Daemon);Berkely Internet Naming Daemon (BIND);Wall, Larry;Perl programming language;Python programming language;sendmail Unix mail program} + +For some observers, the unwillingness to include Stallman's name on the list qualified as a snub. "I decided not to go to the event because of it," says Perens, remembering the summit. Raymond, who did go, says he argued for Stallman's inclusion to no avail. The snub rumor gained additional strength from the fact that O'Reilly, the event's host, had feuded publicly with Stallman over the issue of software-manual copyrights. Prior to the meeting, Stallman had argued that free software manuals should be as freely copyable and modifiable as free software programs. O'Reilly, meanwhile, argued that a value-added market for non-free books increased the utility of free software by making it more accessible to a wider community. The two had also disputed the title of the event, with Stallman insisting on "Free Software" rather than "Freeware." The latter term most often refers to programs which are available gratis, but which are not free software because their source code is not released. + +Looking back, O'Reilly doesn't see the decision to leave Stallman's name off the invite list as a snub. "At that time, I had never met Richard in person, but in our email interactions, he'd been inflexible and unwilling to engage in dialogue. I wanted to make sure the GNU tradition was represented at the meeting, so I invited John Gilmore and Michael Tiemann, whom I knew personally, and whom I knew were passionate about the value of the GPL but seemed more willing to engage in a frank back-and-forth about the strengths and weaknesses of the various free software projects and traditions. Given all the later brouhaha, I do wish I'd invited Richard as well, but I certainly don't think that my failure to do so should be interpreted as a lack of respect for the GNU Project or for Richard personally." +={Gilmore, John;Tiemann, Michael+7} + +Snub or no snub, both O'Reilly and Raymond say the term "open-source" won over just enough summit-goers to qualify as a success. The attendees shared ideas and experiences and brainstormed on how to improve free software's image. Of key concern was how to point out the successes of free software, particularly in the realm of Internet infrastructure, as opposed to playing up the GNU/Linux challenge to Microsoft Windows. But like the earlier meeting at VA, the discussion soon turned to the problems associated with the term "free software." O'Reilly, the summit host, remembers a comment from Torvalds, a summit attendee. + +"Linus had just moved to Silicon Valley at that point, and he explained how only recently that he had learned that the word 'free' had two meanings - free as in 'libre' and free as in 'gratis' - in English." + +Michael Tiemann, founder of Cygnus, proposed an alternative to the troublesome "free software" term: sourceware. "Nobody got too excited about it," O'Reilly recalls. "That's when Eric threw out the term 'open source.'" + +Although the term appealed to some, support for a change in offcial terminology was far from unanimous. At the end of the one-day conference, attendees put the three terms - free software, open source, or sourceware - to a vote. According to O'Reilly, 9 out of the 15 attendees voted for "open source." Although some still quibbled with the term, all attendees agreed to use it in future discussions with the press. "We wanted to go out with a solidarity message," O'Reilly says. + +The term didn't take long to enter the national lexicon. Shortly after the summit, O'Reilly shepherded summit attendees to a press conference attended by reporters from the /{New York Times}/, the /{Wall Street Journal}/, and other prominent publications. Within a few months, Torvalds' face was appearing on the cover of /{Forbes}/ magazine, with the faces of Stallman, Perl creator Larry Wall, and Apache team leader Brian Behlendorf featured in the interior spread. Open source was open for business. +={Wall, Larry} + +For summit attendees such as Tiemann, the solidarity message was the most important thing. Although his company had achieved a fair amount of success selling free software tools and services, he sensed the difficulty other programmers and entrepreneurs faced. + +"There's no question that the use of the word free was confusing in a lot of situations," Tiemann says. "Open source positioned itself as being business friendly and business sensible. Free software positioned itself as morally righteous. For better or worse we figured it was more advantageous to align with the open source crowd. + +Raymond called Stallman after the meeting to tell him about the new term "open source" and ask if he would use it. Raymond says Stallman briefly considered adopting the term, only to discard it. "I know because I had direct personal conversations about it," Raymond says. + +Stallman's immediate response was, "I'll have to think about it." The following day he had concluded that the values of Raymond and O'Reilly would surely dominate the future discourse of "open source," and that the best way to keep the ideas of the free software movement in public view was to stick to its traditional term. + +Later in 1998, Stallman announced his position: "open source," while helpful in communicating the technical advantages of free software also encouraged speakers to soft-pedal the issue of software freedom. It avoided the unintended meaning of "gratis software" and the intended meaning of "freedom-respecting software" equally. As a means for conveying the latter meaning, it was therefore no use. In effect, Raymond and O'Reilly had given a name to the non-idealistic political party in the community, the one Stallman did not agree with. + +In addition, Stallman thought that the ideas of "open source" led people to put too much emphasis on winning the support of business. While such support in itself wasn't necessarily bad in itself, he expected that being too desperate for it would lead to harmful compromises. "Negotiation 101 would teach you that if you are desperate to get someone's agreement, you are asking for a bad deal," he says. "You need to be prepared to say no." Summing up his position at the 1999 LinuxWorld Convention and Expo, an event billed by Torvalds himself as a "coming out party" for the "Linux" community, Stallman implored his fellow hackers to resist the lure of easy compromise. +={LinuxWorld Conventions+2} + +"Because we've shown how much we can do, we don't have to be desperate to work with companies or compromise our goals," Stallman said during a panel discussion. "Let them offer and we'll accept. We don't have to change what we're doing to get them to help us. You can take a single step towards a goal, then another and then more and more and you'll actually reach your goal. Or, you can take a half measure that means you don't ever take another step, and you'll never get there." + +Even before the LinuxWorld show, however, Stallman was showing an increased willingness to alienate open source supporters. A few months after the Freeware Summit, O'Reilly hosted its second annual Perl Conference. This time around, Stallman was in attendance. During a panel discussion lauding IBM's decision to employ the free software Apache web server in its commercial offerings, Stallman, taking advantage of an audience microphone, made a sharp denunciation of panelist John Ousterhout, creator of the Tcl scripting language. Stallman branded Ousterhout a "parasite" on the free software community for marketing a proprietary version of Tcl via Ousterhout's startup company, Scriptics. Ousterhout had stated that Scriptics would contribute only the barest minimum of its improvements to the free version of Tcl, meaning it would in effect use that small contribution to win community approval for much a larger amount of non-free software development. Stallman rejected this position and denounced Scriptics' plans. "I don't think Scriptics is necessary for the continued existenceof Tcl," Stallman said to hisses from the fellow audience members.~{ Ibid. }~ +={Apache web server;IBM:Apache web server and;Ousterhout, John;Tcl scripting language+1;Scriptics} + +"It was a pretty ugly scene," recalls Prime Time Freeware's Rich Morin. "John's done some pretty respectable things: Tcl, Tk, Sprite. He's a real contributor." Despite his sympathies for Stallman and Stallman's position, Morin felt empathy for those troubled by Stallman's discordant words. +={Morin, Rich+1;Prime Time Freeware;Sprite} + +Stallman will not apologize. "Criticizing proprietary software isn't ugly - proprietary software is ugly. Ousterhout had indeed made real contributions in the past, but the point is that Scriptics was going to be nearly 100% a proprietary software company. In that conference, standing up for freedom meant disagreeing with nearly everyone. Speaking from the audience, I could only say a few sentences. The only way to raise the issue so it would not be immediately forgotten was to put it in strong terms." + +"If people rebuke me for 'making a scene' when I state a serious criticism of someone's conduct, while calling Torvalds 'cheeky' for saying nastier things about trivial matters, that seems like a double standard to me." + +Stallman's controversial criticism of Ousterhout momentarily alienated a potential sympathizer, Bruce Perens. In 1998, Eric Raymond proposed launching the Open Source Initiative, or OSI, an organization that would police the use of the term "open source" and provide a definition for companies interested in making their own programs. Raymond recruited Perens to draft the definition.~{ See Bruce Perens et al., "The Open Source Definition," The Open Source Initiative (1998), \\ http://www.opensource.org/docs/definition.html. }~ +={OSI (Open Source Initiative);Open Source Initiative (OSI);Perens, Bruce+1} + +Perens would later resign from the OSI, expressing regret that the organization had set itself up in opposition to Stallman and the FSF. Still, looking back on the need for a free software definition outside the Free Software Foundation's auspices, Perens understands why other hackers might still feel the need for distance. "I really like and admire Richard," says Perens. "I do think Richard would do his job better if Richard had more balance. That includes going away from free-software for a couple of months." + +Stallman's energies would do little to counteract the public-relations momentum of open source proponents. In August of 1998, when chip-maker Intel purchased a stake in GNU/Linux vendor Red Hat, an accompanying /{New York Times}/ article described the company as the product of a movement "known alternatively as free software and opensource."~{ See Amy Harmon, "For Sale: Free Operating System," New York Times (September 28, 1998), \\ http://www.nytimes.com/library/tech/98/09/biztech/articles/28linux.html. }~ Six months later, a John Markoff article on Apple Computerwas proclaiming the company's adoption of the "open source" Apache server in the article headline.~{ See John Markoff, "Apple Adopts 'Open Source' for its Server Computers," New York Times (March 17, 1999), \\ http://www.nytimes.com/library/tech/99/03/biztech/articles/17apple.html. }~ +={Apache web server;Apple Computers:open source software and;Intel;Markoff, John;Red Hat Inc.:success of+1} + +Such momentum would coincide with the growing momentum of companies that actively embraced the "open source" term. By August of 1999, Red Hat, a company that now eagerly billed itself as "opensource," was selling shares on Nasdaq. In December, VA Linux -formerly VA Research - was floating its own IPO to historic effect. Opening at $30 per share, the company's stock price exploded past the $300 mark in initial trading only to settle back down to the $239 level. Shareholders lucky enough to get in at the bottom and stay until the end experienced a 698% increase in paper wealth, a Nasdaq record. Eric Raymond, as a board member, owned shares worth $36 million. However, these high prices were temporary; they tumbled when the dot-com boom ended. +={VA Linux+1;VA Research} + +The open source proponents' message was simple: all you need, to sell the free software concept, is to make it business-friendly. They saw Stallman and the free software movement as fighting the market;they sought instead to leverage it. Instead of playing the role of high-school outcasts, they had played the game of celebrity, magnifying their power in the process. + +These methods won great success for open source, but not for the ideals of free software. What they had done to "spread the message" was to omit the most important part of it: the idea of freedom as an ethical issue. The effects of this omission are visible today: as of 2009, nearly all GNU/Linux distributions include proprietary programs, Torvalds' version of Linux contains proprietary firmware programs, and the company formerly called VA Linux bases its business on proprietary software. Over half of all the world's web servers run some version of Apache, and the usual version of Apache is free software, but many of those sites run a proprietary modified version distributed by IBM. + +"On his worst days Richard believes that Linus Torvalds and I conspired to hijack his revolution," Raymond says. "Richard's rejection of the term open source and his deliberate creation of an ideological fissure in my view comes from an odd mix of idealism and territoriality. There are people out there who think it's all Richard's personal ego. I don't believe that. It's more that he so personally associates himself with the free software idea that he sees any threat to that as a threat to himself." + +Stallman responds, "Raymond misrepresents my views: I don't think Torvalds 'conspired' with anyone, since being sneaky is not his way. However, Raymond's nasty conduct is visible in those statements themselves. Rather than respond to my views (even as he claims they are) on their merits, he proposes psychological interpretations for them. He attributes the harshest interpretation to unnamed others, then 'defends' me by proposing a slightly less derogatory one. He has often 'defended' me this way." + +Ironically, the success of open source and open source advocates such as Raymond would not diminish Stallman's role as a leader - but it would lead many to misunderstand what he is a leader of. Since the free software movement lacks the corporate and media recognition of open source, most users of GNU/Linux do not hear that it exists, let alone what its views are. They have heard the ideas and values of opensource, and they never imagine that Stallman might have different ones. Thus he receives messages thanking him for his advocacy of "open source," and explains in response that he has never been a supporter of that, using the occasion to inform the sender about free-software. + +Some writers recognize the term "free software" by using the term "FLOSS," which stands for "Free/Libre and Open Source Software." However, they often say there is a single "FLOSS" movement, which is like saying that the U.S. has a "Liberal/Conservative" movement, and the views they usually associate with this supposed single movement are the open source views they have heard. + +Despite all these obstacles, the free software movement does make its ideas heard sometimes, and continues to grow in absolute terms. By sticking to its guns, and presenting its ideas in contrast to those of open source, it gains ground. "One of Stallman's primary character traits is the fact he doesn't budge," says Ian Murdock. "He'll wait up to a decade for people to come around to his point of view if that's what it takes." + +Murdock, for one, finds that un-budgeable nature both refreshing and valuable. Stallman may no longer be the solitary leader of the free software movement, but he is still the polestar of the free software community. "You always know that he's going to be consistent in his views," Murdock says. "Most people aren't like that. Whether you agree with him or not, you really have to respect that." + +1~ Chapter 12 - A Brief Journey through Hacker Hell + +[RMS: In this chapter my only change is to add a few notes labeled like this one.] + +Richard Stallman stares, unblinking, through the windshield of a rental car, waiting for the light to change as we make our way through downtown Kihei. +={Kihei (Hawaii)+15} + +The two of us are headed to the nearby town of Pa'ia, where we are scheduled to meet up with some software programmers and their wives for dinner in about an hour or so. +={Pa'ia (Hawaii)+2} + +It's about two hours after Stallman's speech at the Maui High Performance Center, and Kihei, a town that seemed so inviting before the speech, now seems profoundly uncooperative. Like most beach cities, Kihei is a one-dimensional exercise in suburban sprawl. Driving down its main drag, with its endless succession of burger stands, realty agencies, and bikini shops, it's hard not to feel like a steel-coated morsel passing through the alimentary canal of a giant commercial tapeworm. The feeling is exacerbated by the lack of side roads. With nowhere to go but forward, traffic moves in spring-like lurches. 200 yards ahead, a light turns green. By the time we are moving, the light is yellow again. + +For Stallman, a lifetime resident of the east coast, the prospect of spending the better part of a sunny Hawaiian afternoon trapped in slow traffic is enough to trigger an embolism. [RMS: Since I was driving, I was also losing time to answer my email, and that's a real pain since I can barely keep up anyway.] Even worse is the knowledge that, with just a few quick right turns a quarter mile back, this whole situation easily could have been avoided. Unfortunately, we are at the mercy of the driver ahead of us, a programmer from the lab who knows the way and who has decided to take us to Pa'ia via the scenic route instead of via the nearby Pilani Highway. + +"This is terrible," says Stallman between frustrated sighs. "Why didn't we take the other route?" + +Again, the light a quarter mile ahead of us turns green. Again, we creep forward a few more car lengths. This process continues for another 10 minutes, until we finally reach a major crossroad promising access to the adjacent highway. + +The driver ahead of us ignores it and continues through the intersection. + +"Why isn't he turning?" moans Stallman, throwing up his hands in frustration. "Can you believe this?" + +I decide not to answer either. I find the fact that I am sitting in a car with Stallman in the driver seat, in Maui no less, unbelievable enough. Until two hours ago, I didn't even know Stallman knew how to drive. Now, listening to Yo-Yo Ma's cello playing the mournful bass notes of "Appalachian Journey" on the car stereo and watching the sunset pass by on our left, I do my best to fade into the upholstery. + +When the next opportunity to turn finally comes up, Stallman hits his right turn signal in an attempt to cue the driver ahead of us. No such luck. Once again, we creep slowly through the intersection, coming to a stop a good 200 yards before the next light. By now, Stallman is livid. + +"It's like he's deliberately ignoring us," he says, gesturing and pantomiming like an air craft carrier landing-signals officer in a futile attempt to catch our guide's eye. The guide appears unfazed, and for the next five minutes all we see is a small portion of his head in the rear-view mirror. + +I look out Stallman's window. Nearby Kahoolawe and Lanai Islands provide an ideal frame for the setting sun. It's a breathtaking view, the kind that makes moments like this a bit more bearable if you're a Hawaiian native, I suppose. I try to direct Stallman's attention to it, but Stallman, by now obsessed by the inattentiveness of the driver ahead of us, blows me off. +={Lanai Islands (Hawaii)} + +When the driver passes through another green light, completely ignoring a "Pilani Highway Next Right," I grit my teeth. I remember an early warning relayed to me by BSD programmer Keith Bostic. "Stallman does not suffer fools gladly," Bostic warned me. "If somebody says or does something stupid, he'll look them in the eye and say, 'That's stupid.'" +={Bostic, Keith} + +Looking at the oblivious driver ahead of us, I realize that it's the stupidity, not the inconvenience, that's killing Stallman right now. + +"It's as if he picked this route with absolutely no thought on how to get there efficiently," Stallman says. + +The word "efficiently" hangs in the air like a bad odor. Few things irritate the hacker mind more than inefficiency. It was the inefficiency of checking the Xerox laser printer two or three times a day that triggered Stallman's initial inquiry into the printer source code. It was the inefficiency of rewriting software tools hijacked by commercial software vendors that led Stallman to battle Symbolics and to launch the GNU Project. If, as Jean Paul Sartre once opined, hell is other people, hacker hell is duplicating other people's stupid mistakes, and it's no exaggeration to say that Stallman's entire life has been an attempt to save mankind from these fiery depths. +={Sartre, Jean Paul} + +This hell metaphor becomes all the more apparent as we take in the slowly passing scenery. With its multitude of shops, parking lots, and poorly timed street lights, Kihei seems less like a city and more like a poorly designed software program writ large. Instead of rerouting traffic and distributing vehicles through side streets and expressways, city planners have elected to run everything through a single main drag. From a hacker perspective, sitting in a car amidst all this mess is like listening to a CD rendition of nails on a chalkboard at full volume. + +"Imperfect systems infuriate hackers," observes Steven Levy, another warning I should have listened to before climbing into the car with Stallman. "This is one reason why hackers generally hate driving cars - the system of randomly programmed red lights and oddly laid out one-way streets causes delays which are so goddamn /{unnecessary}/ [Levy's emphasis] that the impulse is to rearrange signs, open up traffic-light control boxes . . . re-design the entire system."~{ See Steven Levy, /{Hackers}/ (Penguin USA [paperback], 1984): 40. }~ + +More frustrating, however, is the duplicity of our trusted guide. Instead of searching out a clever shortcut - as any true hacker would do on instinct - the driver ahead of us has instead chosen to play along with the city planners' game. Like Virgil in Dante's /{Inferno}/, our guide is determined to give us the full guided tour of this hacker hell whether we want it or not. + +Before I can make this observation to Stallman, the driver finally hits his right turn signal. Stallman's hunched shoulders relax slightly, and for a moment the air of tension within the car dissipates. The tension comes back, however, as the driver in front of us slows down. "Construction Ahead" signs line both sides of the street, and even though the Pilani Highway lies less than a quarter mile off in the distance, the two-lane road between us and the highway is blocked by a dormant bulldozer and two large mounds of dirt. + +It takes Stallman a few seconds to register what's going on as our guide begins executing a clumsy five-point U-turn in front of us. When he catches a glimpse of the bulldozer and the "No Through Access" signs just beyond, Stallman finally boils over. + +"Why, why, why?" he whines, throwing his head back. "You should have known the road was blocked. You should have known this way wouldn't work. You did this deliberately." [RMS: I meant that he chose the slow road deliberately. As explained below, I think these quotes are not exact.] + +The driver finishes the turn and passes us on the way back toward the main drag. As he does so, he shakes his head and gives us an apologetic shrug. Coupled with a toothy grin, the driver's gesture reveals a touch of mainlander frustration but is tempered with a protective dose of islander fatalism. Coming through the sealed windows of our rental car, it spells out a succinct message: "Hey, it's Maui; what are you gonna do?" + +Stallman can take it no longer. + +"Don't you fucking smile!" he shouts, fogging up the glass as he does so. "It's your fucking fault. This all could have been so much easier if we had just done it my way." [RMS: These quotes appear to be inaccurate, because I don't use "fucking" as an adverb. This was not an interview, so Williams would not have had a tape recorder running. I'm sure things happened overall as described, but these quotations probably reflect his understanding rather than my words.] + +Stallman accents the words "my way" by gripping the steering wheel and pulling himself towards it twice. The image of Stallman's lurching frame is like that of a child throwing a temper tantrum in a car seat, an image further underlined by the tone of Stallman's voice. Halfway between anger and anguish, Stallman seems to be on the verge of tears. + +Fortunately, the tears do not arrive. Like a summer cloudburst, the tantrum ends almost as soon as it begins. After a few whiny gasps, Stallman shifts the car into reverse and begins executing his own U-turn. By the time we are back on the main drag, his face is as impassive as it was when we left the hotel 30 minutes earlier. + +It takes less than five minutes to reach the next cross-street. This one offers easy highway access, and within seconds, we are soon speeding off toward Pa'ia at a relaxing rate of speed. The sun that once loomed bright and yellow over Stallman's left shoulder is now burning a cool orange-red in our rear-view mirror. It lends its color to the gauntlet wili wili trees flying past us on both sides of the highway. +={Pa'ia (Hawaii)} + +For the next 20 minutes, the only sound in our vehicle, aside from the ambient hum of the car's engine and tires, is the sound of a cello and a violin trio playing the mournful strains of an Appalachian folktune. + +1~ Chapter 13 - Continuing the Fight + +For Richard Stallman, time may not heal all wounds, but it does provide a convenient ally. + +Four years after "The Cathedral and the Bazaar," Stallman still chafes over the Raymond critique. He also grumbles over Linus Torvalds' elevation to the role of world's most famous hacker. He recalls a popular T-shirt that began showing at Linux tradeshows around 1999. Designed to mimic the original promotional poster for Star Wars, the shirt depicted Torvalds brandishing a light-saber like Luke Skywalker, while Stallman's face rides atop R2D2. The shirt still grates on Stallman's nerves not only because it depicts him as Torvalds' sidekick, but also because it elevates Torvalds to the leadership role in the free-software community, a role even Torvalds himself is loath to accept. "It's ironic," says Stallman mournfully. "Picking up that sword is exactly what Linus refuses to do. He gets everybody focusing on him as the symbol of the movement, and then he won't fight. What good is it?" +={Cathedral and the Bazaar, The (Raymond);Luke Skywalker;R2D2;Torvalds, Linus+1;Star Wars} + +Then again, it is that same unwillingness to "pick up the sword," on Torvalds' part, that has left the door open for Stallman to bolster his reputation as the hacker community's ethical arbiter. Despite his grievances, Stallman has to admit that the last few years have been quite good, both to himself and to his organization. Relegated to the periphery by the ironic success of the GNU/Linux system because users thought of it as "Linux," Stallman has nonetheless successfully recaptured the initiative. His speaking schedule between January 2000and December 2001 included stops on six continents and visits to countries where the notion of software freedom carries heavy overtones -China and India, for example. + +Outside the bully pulpit, Stallman has taken advantage of the leverage of the GNU General Public License (GPL), of which he remains the steward. During the summer of 2000, while the air was rapidly leaking out of the 1999 Linux IPO bubble, Stallman and the Free Software Foundation scored two major victories. In July, 2000, Troll tech, a Norwegian software company and developer of Qt, a graphical interface library that ran on the GNU/Linux operating system, announced it was licensing its software under the GPL. A few weeks later, Sun Microsystems, a company that, until then, had been warily trying to ride the open source bandwagon without actually contributing its code, finally relented and announced that it, too, was dual licensing its new OpenOffice~{ Sun was compelled by a trademark complaint to use the clumsy name "OpenOffice.org." }~ application suite under the Lesser GNU Public License(LGPL) and the Sun Industry Standards Source License (SISSL). +={Free Software Foundation (FSF):QT graphic tools and;GNU General Public License:QT graphics tools and;Lesser GNU Public License (LGPL);OpenOffice application suite+4;Qt+1;Troll Tech+1;SISSL (Sun Industry Standards Source Licence);Sun Industry Standards Source License (SISSL);Sun Microsystems:OpenOffice application suite} + +In the case of Trolltech, this victory was the result of a protracted effort by the GNU Project. The non-freeness of Qt was a serious problem for the free software community because KDE, a free graphical desktop environment that was becoming popular, depended on it. Qt was non-free software but Trolltech had invited free software projects(such as KDE) to use it gratis. Although KDE itself was free software, users that insisted on freedom couldn't run it, since they had to reject Qt. Stallman recognized that many users would want a graphical desktop on GNU/Linux, and most would not value freedom enough to reject the temptation of KDE, with Qt hiding within. The danger was that GNU/Linux would become a motor for the installation of KDE, and therefore also of non-free Qt. This would undermine the freedom which was the purpose of GNU. + +To deal with this danger, Stallman recruited people to launch two parallel counter projects. One was GNOME, the GNU free graphical desktop environment. The other was Harmony, a compatible free replacement for Qt. If GNOME succeeded, KDE would not be necessary; if Harmony succeeded, KDE would not need Qt. Either way, users would be able to have a graphical desktop on GNU/Linux without non-free Qt. + +In 1999, these two efforts were making good progress, and the management of Trolltech were starting to feel the pressure. So Trolltech released Qt under its own free software license, the QPL. The QPL qualified as a free license, but Stallman pointed out the drawback of incompatibility with the GPL: in general, combining GPL-covered code with Qt in one program was impossible without violating one license or the other. Eventually the Trolltech management recognized that the GPL would serve their purposes equally well, and released Qt with dual licensing: the same Qt code, in parallel, was available under the GNU GPL and under the QPL. After three years, this was victory. + +Once Qt was free, the motive for developing Harmony (which wasn't complete enough for actual use) had disappeared, and the developers abandoned it. GNOME had acquired substantial momentum, so its development continued, and it remains the main GNU graphical desktop. + +Sun desired to play according to the Free Software Foundation's conditions. At the 1999 O'Reilly Open Source Conference, Sun Microsystems co-founder and chief scientist Bill Joy defended his company's "community source" license, essentially a watered-down compromise letting users copy and modify Sun-owned software but not sell copies of said software without negotiating a royalty agreement with Sun. (With this restriction, the license did not qualify as free, nor for that matter as open source.) A year after Joy's speech, Sun Microsystems vice president Marco Boerries was appearing on the same stage spelling out the company's new licensing compromise in the case of OpenOffice, an office-application suite designed specifically for the GNU/Linux operating system. +={Boerries, Marco+2;community source, license of Sun Microsystems;Joy, Bill;O'Reilly & Associates:Open Source Conferences} + +"I can spell it out in three letters," said Boerries. "GPL." + +At the time, Boerries said his company's decision had little to do with Stallman and more to do with the momentum of GPL-protected programs. "What basically happened was the recognition that different products attracted different communities, and the license you use depends on what type of community you want to attract," said Boerries. "With [OpenOffice], it was clear we had the highest correlation with the GPL community."~{ Marco Boerries, interview with author (July, 2000). }~ Alas, this victory was incomplete, since OpenOffice recommends the use of non-free plug-ins. + +Such comments point out the under-recognized strength of the GPL and, indirectly, the political genius of the man who played the largest role in creating it. "There isn't a lawyer on earth who would have drafted the GPL the way it is," says Eben Moglen, Columbia University law professor and Free Software Foundation general counsel. "But it works. And it works because of Richard's philosophy of design." +={Columbia University;Moglen, Eben+35} + +A former professional programmer, Moglen traces his pro bono work with Stallman back to 1990 when Stallman requested Moglen's legal assistance on a private affair. Moglen, then working with encryption expert Phillip Zimmerman during Zimmerman's legal battles with the federal government, says he was honored by the request.~{ For more information on Zimmerman's legal travails, read Steven Levy's /{Crypto}/, p. 287-288. In the original book version of /{Free as in Freedom}/, I reported that Moglen helped defend Zimmerman against the National Security Agency. According to Levy's account, Zimmerman was investigated by the U.S. Attorney's office and U.S. Customs, not the NSA. }~ +={Zimmerman, Phillip;National Security Administration} + +"I told him I used Emacs every day of my life, and it would take an awful lot of lawyering on my part to pay off the debt." + +Since then, Moglen, perhaps more than any other individual, has had the best chance to observe the crossover of Stallman's hacker philosophies into the legal realm. Moglen says Stallman's approach to legal code and his approach to software code are largely the same. "I have to say, as a lawyer, the idea that what you should do with a legal document is to take out all the bugs doesn't make much sense," Moglen says. "There is uncertainty in every legal process, and what most lawyers want to do is to capture the benefits of uncertainty for their client. Richard's goal is the complete opposite. His goal is to remove uncertainty, which is inherently impossible. It is inherently impossible to draft one license to control all circumstances in all legal systems all over the world. But if you were to go at it, you would have to go at it his way. And the resulting elegance, the resulting simplicity in design almost achieves what it has to achieve. And from there a little lawyering will carry you quite far." + +As the person charged with pushing the Stallman agenda, Moglen understands the frustration of would-be allies. "Richard is a man who does not want to compromise over matters that he thinks of as fundamental," Moglen says, "and he does not take easily the twisting of words or even just the seeking of artful ambiguity, which human society often requires from a lot of people." + +In addition to helping the Free Software Foundation, Moglen has provided legal aid to other copyright defendants, such as Dmitry Sklyarov, and distributors of the DVD decryption program deCSS. +={Sklyarov, Dmitri+1} + +Sklyarov had written and released a program to break digital copy-protection on Adobe e-Books, in Russia where there was no law against it, as an employee of a Russian company. He was then arrested while visiting the US to give a scientific paper about his work. Stallman eagerly participated in protests condemning Adobe for having Sklyarov arrested, and the Free Software Foundation denounced the Digital Millennium Copyright Act as "censorship of software," but it could not intervene in favor of Sklyarov's program because that was non-free. Thus, Moglen worked for Sklyarov's defense through the Electronic Frontier Foundation. The FSF avoided involvement in the distribution of deCSS, since that was illegal, but Stallman condemned the U.S. government for prohibiting deCSS, and Moglen worked as direct counsel for the defendants. +={Electronic Frontier Foundation} + +Following the FSF's decision not to involve itself in those cases, Moglen has learned to appreciate the value of Stallman's stubbornness. "There have been times over the years where I've gone to Richard and said, 'We have to do this. We have to do that. Here's the strategic situation. Here's the next move. Here's what he have to do.' And Richard's response has always been, 'We don't have to do anything.'Just wait. What needs doing will get done." + +"And you know what?" Moglen adds. "Generally, he's been right." + +Such comments disavow Stallman's own self-assessment: "I'm not good at playing games," Stallman says, addressing the many unseen critics who see him as a shrewd strategist. "I'm not good at looking ahead and anticipating what somebody else might do. My approach has always been to focus on the foundation [of ideas], to say 'Let's make the foundation as strong as we can make it.'" + +The GPL's expanding popularity and continuing gravitational strength are the best tributes to the foundation laid by Stallman and his GNU colleagues. While Stallman was never the sole person in the world releasing free software, he nevertheless can take sole credit for building the free software movement's ethical framework. Whether or not other modern programmers feel comfortable working inside that framework is immaterial. The fact that they even have a choice at all is Stallman's greatest legacy. + +Discussing Stallman's legacy at this point seems a bit premature. Stallman, 48 at the time of this writing, still has a few years left to add to or subtract from that legacy. Still, the momentum of the free software movement makes it tempting to examine Stallman's life outside the day-to-day battles of the software industry and within a more august, historical setting. + +To his credit, Stallman refuses all opportunities to speculate about this. "I've never been able to work out detailed plans of what the future was going to be like," says Stallman, offering his own premature epitaph. "I just said 'I'm going to fight. Who knows where I'll get?'" + +There's no question that in picking his fights, Stallman has alienated the very people who might otherwise have been his greatest champions, had he been willing to fight for their views instead of his own. It is also a testament to his forthright, ethical nature that many of Stallman's erstwhile political opponents still manage to put in a few good words for him when pressed. The tension between Stallman the ideologue and Stallman the hacker genius, however, leads a biographer to wonder: how will people view Stallman when Stallman's own personality is no longer there to get in the way? + +In early drafts of this book, I dubbed this question the "100 year" question. Hoping to stimulate an objective view of Stallman and his work, I asked various software-industry luminaries to take themselves out of the current time-frame and put themselves in a position of a historian looking back on the free software movement 100 years in the future. From the current vantage point, it is easy to see similarities between Stallman and past Americans who, while somewhat marginal during their lifetime, have attained heightened historical importance in relation to their age. Easy comparisons include Henry David Thoreau, transcendentalist philosopher and author of /{Civil Disobedience}/, and John Muir, founder of the Sierra Club and progenitor of the modern environmental movement. It is also easy to see similarities in men like William Jennings Bryan, a.k.a. "The Great Commoner," leader of the populist movement, enemy of monopolies, and a man who, though powerful, seems to have faded into historical insignificance. +={Bryan, Willliam Jennings;Muir, John;On Civil Disobedience (Thoreau);Thoreau, Henry David;Sierra Club} + +Although not the first person to view software as public property, Stallman is guaranteed a footnote in future history books thanks to the GPL. Given that fact, it seems worthwhile to step back and examine Richard Stallman's legacy outside the current time frame. Will the GPL still be something software programmers use in the year 2102, or will it have long since fallen by the wayside? Will the term "free-software" seem as politically quaint as "free silver" does today, or will it seem eerily prescient in light of later political events? + +Predicting the future is risky sport. Stallman refuses, saying that asking what people will think in 100 years presumes we have no influence over it. The question he prefers is, "What should we do to make a better future?" But most people, when presented with the predictive question, seemed eager to bite. + +"One hundred years from now, Richard and a couple of other people are going to deserve more than a footnote," says Moglen. "They're going to be viewed as the main line of the story." + +The "couple of other people" Moglen nominates for future textbook chapters include John Gilmore, who beyond contributing in various ways to free software has founded the Electronic Frontier Foundation, and Theodor Holm Nelson, a.k.a. Ted Nelson, author of the 1982book, /{Literary Machines}/. Moglen says Stallman, Nelson, and Gilmore each stand out in historically significant, non-overlapping ways. He credits Nelson, commonly considered to have coined the term "hypertext," for identifying the predicament of information ownership in the digital age. Gilmore and Stallman, meanwhile, earn notable credit for identifying the negative political effects of information control and building organizations - the Electronic Frontier Foundation in the case of Gilmore and the Free Software Foundation in the case of Stallman - to counteract those effects. Of the two, however, Moglen sees Stallman's activities as more personal and less political in nature. +={Electronic Frontier Foundation;Gilmore, John;Nelson, Theodor Holm+2;Nelson, Ted+2} + +"Richard was unique in that the ethical implications of un-free software were particularly clear to him at an early moment," says Moglen. "This has a lot to do with Richard's personality, which lots of people will, when writing about him, try to depict as epiphenomenal or even a drawback in Richard Stallman's own life work." + +Gilmore, who describes his inclusion between the erratic Nelson and the irascible Stallman as something of a "mixed honor," nevertheless seconds the Moglen argument. Writes Gilmore: + +_1 My guess is that Stallman's writings will stand up as well as Thomas Jefferson's have; he's a pretty clear writer and also clear on his principles... Whether Richard will be as influential as Jefferson will depend on whether the abstractions we call "civil rights" end up more important a hundred years from now than the abstractions that we call "software" or "technically imposed restrictions." +={Jefferson, Thomas} + +Another element of the Stallman legacy not to be overlooked, Gilmore writes, is the collaborative software-development model pioneered by the GNU Project. Although flawed at times, the model has nevertheless evolved into a standard within the software-development industry. All told, Gilmore says, this collaborative software-development model may end up being even more influential than the GNU Project, the GPL License, or any particular software program developed by Stallman: + +_1 Before the Internet, it was quite hard to collaborate over distance on software, even among teams that know and trust each other. Richard pioneered collaborative development of software, particularly by disorganized volunteers who seldom meet each other. Richard didn't build any of the basic tools for doing this (the TCP protocol, email lists, diff and patch, tar files, RCS or CVS or remote-CVS), but he used the ones that were available to form social groups of programmers who could effectively collaborate. + +Stallman thinks that evaluation, though positive, misses the point. "It emphasizes development methods over freedom, which reflects the values of open source rather than free software. If that is how future users look back on the GNU Project, I fear it will lead to a world in which developers maintain users in bondage, and let them aid development occasionally as a reward, but never take the chains off them." + +Lawrence Lessig, Stanford law professor and author of the 2001 book, /{The Future of Ideas}/, is similarly bullish. Like many legal scholars, Lessig sees the GPL as a major bulwark of the current so-called "digital commons," the vast agglomeration of community-owned software programs, network and telecommunication standards that have triggered the Internet's exponential growth over the last three decades. Rather than connect Stallman with other Internet pioneers, men such as Vannevar Bush, Vinton Cerf, and J. C. R. Licklider who convinced others to see computer technology on a wider scale, Lessig sees Stallman's impact as more personal, introspective, and, ultimately, unique: +={Future of Ideas, The (Lessig)} + +_1 [Stallman] changed the debate from "is" to "ought." He made people see how much was at stake, and he built a device to carry these ideals forward... That said, I don't quite know how to place him in the context of Cerf or Licklider. The innovation is different. It is not just about a certain kind of code, or enabling the Internet. [It's] much more about getting people to see the value in a certain kind of Internet. I don't think there is anyone else in that class, before or after. + +Not everybody sees the Stallman legacy as set in stone, of course. Eric Raymond, the open source proponent who feels that Stallman's leadership role has diminished significantly since 1996, sees mixed signals when looking into the 2102 crystal ball: + +_1 I think Stallman's artifacts (GPL, Emacs, GCC) will be seen as revolutionary works, as foundation-stones of the information world. I think history will be less kind to some of the theories from which RMS operated, and not kind at all to his personal tendency towards territorial, cult-leader behavior. + +As for Stallman himself, he, too, sees mixed signals: + +_1 What history says about the GNU Project, twenty years from now, will depend on who wins the battle of freedom to use public knowledge. If we lose, we will be just a footnote. If we win, it is uncertain whether people will know the role of the GNU operating system - if they think the system is "Linux," they will build a false picture of what happened and why. + +_1 But even if we win, what history people learn a hundred years from now is likely to depend on who dominates politically. + +Searching for his own 19th-century historical analogy, Stallman summons the figure of John Brown, the militant abolitionist regarded as a hero on one side of the Mason Dixon line and a madman on the other. + +John Brown's slave revolt never got going, but during his subsequent trial he effectively roused national demand for abolition. During the Civil War, John Brown was a hero; 100 years after, and for much of the 1900s, history textbooks taught that he was crazy. During the era of legal segregation, while bigotry was shameless, the U.S. partly accepted the story that the South wanted to tell about itself, and history textbooks said many untrue things about the Civil War and related events. + +Such comparisons document both the self-perceived peripheral nature of Stallman's current work and the binary nature of his current reputation. It's hard to see Stallman's reputation falling to the same level of infamy as Brown's did during the post-Reconstruction period. Stallman, despite his occasional war-like analogies, has done little to inspire violence. Still, it is easy to envision a future in which Stallman's ideas wind up on the ash-heap.~{ RMS: Sam Williams' further words here, "In fashioning the free software cause not not as a mass movement but as a collection of private battles against the forces of proprietary temptation," do not fit the facts. Ever since the first announcement of the GNU Project, I have asked the public to support the cause. The free software movement aims to be a mass movement, and the only question is whether it has enough supporters to qualify as "mass." As of 2009, the Free Software Foundation has some 3000 members that pay the hefty dues, and over 20,000 subscribers to its monthly e-mail newsletter. }~ + +Then again, it is that very will that may someday prove to be Stallman's greatest lasting legacy. Moglen, a close observer over the last decade, warns those who mistake the Stallman personality as counter-productive or epiphenomenal to the "artifacts" of Stallman's life. Without that personality, Moglen says, there would be precious few artifacts to discuss. Says Moglen, a former Supreme Court clerk: + +_1 Look, the greatest man I ever worked for was Thurgood Marshall. I knew what made him a great man. I knew why he had been able to change the world in his possible way. I would be going out on a limb a little bit if I were to make a comparison, because they could not be more different: Thurgood Marshall was a man in society, representing an outcast society to the society that enclosed it, but still a man in society. His skill was social skills. But he was all of a piece, too. Different as they were in every other respect, the person I now most compare him to in that sense - of a piece, compact, made of the substance that makes stars, all the way through - is Stallman. +={Marshall, Thurgood} + +In an effort to drive that image home, Moglen reflects on a shared moment in the spring of 2000. The success of the VA Linux IPO was still resonating in the business media, and a half dozen issues related to free software were swimming through the news. Surrounded by a swirling hurricane of issues and stories each begging for comment, Moglen recalls sitting down for lunch with Stallman and feeling like a castaway dropped into the eye of the storm. For the next hour, he says, the conversation calmly revolved around a single topic: strengthening the GPL. +={VA Linux} + +"We were sitting there talking about what we were going to do about some problems in Eastern Europe and what we were going to do when the problem of the ownership of content began to threaten free software," Moglen recalls. "As we were talking, I briefly thought about how we must have looked to people passing by. Here we are, these two little bearded anarchists, plotting and planning the next steps. And, of course, Richard is plucking the knots from his hair and dropping them in the soup and behaving in his usual way. Anybody listening in on our conversation would have thought we were crazy, but I knew: I knew the revolution's right here at this table. This is what's making it happen. And this man is the person making it happen." + +Moglen says that moment, more than any other, drove home the elemental simplicity of the Stallman style. + +"It was funny," recalls Moglen. "I said to him, 'Richard, you know, you and I are the two guys who didn't make any money out of this revolution.' And then I paid for the lunch, because I knew he didn't have the money to pay for it."~{ RMS: I never refuse to let people treat me to a meal, since my pride is not based on picking up the check. But I surely did have the money to pay for lunch. My income, which comes from around half the speeches I give, is much less than a law professor's salary, but I'm not poor. }~ + +1~ Epilogue from Sam Williams: Crushing Loneliness + +[RMS: Because this chapter is so personally from Sam Williams, I have indicated all changes to the text with square brackets or ellipses, and I have made such changes only to clear up technical or legal points,and to remove passages that I found to be hostile and devoid of information. I have also added notes labeled 'RMS:' to respond to certain points. Williams has also changed the text of this chapter; changes made by Williams are not explicitly indicated.] + +Writing the biography of a living person is a bit like producing a play. The drama in front of the curtain often pales in comparison to the drama backstage. + +In /{The Autobiography of Malcolm X}/, Alex Haley gives readers a rare glimpse of that backstage drama. Stepping out of the ghostwriter role, Haley delivers the book's epilogue in his own voice. The epilogue explains how a freelance reporter originally dismissed as a "tool" and"spy" by the Nation of Islam spokesperson managed to work through personal and political barriers to get Malcolm X's life story on paper. +={Autobiography of Malcolm X, The (Haley)+1;Haley, Alex} + +While I hesitate to compare this book with /{The Autobiography of Malcolm X}/, I do owe a debt of gratitude to Haley for his candid epilogue. Over the last 12 months, it has served as a sort of instruction manual on how to deal with a biographical subject who has built an entire career on being disagreeable. [RMS: I have built my career on saying no to things others accept without much question, but if I sometimes seem or am disagreeable, it is not through specific intention.] From the outset, I envisioned closing this biography with a similar epilogue, both as an homage to Haley and as a way to let readers know how this book came to be. + +The story behind this story starts in an Oakland apartment, winding its way through the various locales mentioned in the book - Silicon Valley, Maui, Boston, and Cambridge. Ultimately, however, it is a tale of two cities: New York, New York, the book-publishing capital of the world, and Sebastopol, California, the book-publishing capital of Sonoma County. + +The story starts in April, 2000. At the time, I was writing stories for the ill-fated web site BeOpen.com. One of my first assignments was a phone interview with Richard M. Stallman. The interview went well, so well that Slashdot (http://www.slashdot.org), the popular "news for nerds" site owned by VA Software, Inc. (formerly VA LinuxSystems and before that, VA Research), gave it a link in its daily list of feature stories. Within hours, the web servers at BeOpen were heating up as readers clicked over to the site. +={BeOpen.com+3;VA Linux;VA Research;VA Software, Inc.;Slashdot} + +For all intents and purposes, the story should have ended there. Three months after the interview, while attending the O'Reilly Open Source Conference in Monterey, California, I received the following email message from Tracy Pattison, foreign-rights manager at a large New York publishing house: +={Monterey (California);O'Reilly & Associates:Open Source Conferences;Pattison, Tracy} + +% poem or group what follows ? + +poem{ + +To: sam@BeOpen.com + +Subject: RMS Interview Date: Mon, 10 Jul 2000 15:56:37 - 0400 + +Dear Mr. Williams, + +I read your interview with Richard Stallman on BeOpen +with great interest. I've been intrigued by RMS and his +work for some time now and was delighted to find your +piece which I really think you did a great job of capturing +some of the spirit of what Stallman is trying to do with +GNU-Linux and the Free Software Foundation. + +What I'd love to do, however, is read more - and I don't +think I'm alone. Do you think there is more information +and/or sources out there to expand and update your +interview and adapt it into more of a profile of Stallman? +Perhaps including some more anecdotal information about +his personality and background that might really interest +and enlighten readers outside the more hardcore +programming scene? + +}poem + +Tracy ended the email with a request that I give her a call to discuss the idea further. I did just that. Tracy told me her company was launching a new electronic book line, and it wanted stories that appealed to an early-adopter audience. The e-book format was 30,000words, about 100 pages, and she had pitched her bosses on the idea of profiling a major figure in the hacker community. Her bosses liked the idea, and in the process of searching for interesting people to profile,she had come across my BeOpen interview with Stallman. Hence her email to me. + +That's when Tracy asked me: would I be willing to expand the interview into a full-length feature profile? + +My answer was instant: yes. Before accepting it, Tracy suggested I put together a story proposal she could show her superiors. Two days later, I sent her a polished proposal. A week later, Tracy sent me a follow up email. Her bosses had given it the green light. + +I have to admit, getting Stallman to participate in an e-book project was an afterthought on my part. As a reporter who covered the open source beat, I knew Stallman was a stickler. I'd already received a half dozen emails at that point upbraiding me for the use of "Linux" instead of "GNU/Linux." + +Then again, I also knew Stallman was looking for ways to get his message out to the general public. Perhaps if I presented the project to him that way, he would be more receptive. If not, I could always rely upon the copious amounts of documents, interviews, and recorded online conversations Stallman had left lying around the Internet and do an unauthorized biography. + +During my research, I came across an essay titled "Freedom - Or Copyright?" Written by Stallman and published in the June, 2000,edition of the MIT /{Technology Review}/, the essay blasted e-books for an assortment of software sins. Not only did readers have to use proprietary software programs to read them, Stallman lamented, but the methods used to prevent unauthorized copying were overly harsh. Instead of downloading a transferable HTML or PDF file, readers downloaded an encrypted file. In essence, purchasing an e-book meant purchasing a nontransferable key to unscramble the encrypted content. Any attempt to open a book's content without an authorized key constituted a criminal violation of the Digital Millennium Copyright Act, the 1998 law designed to bolster copyright enforcement on the Internet. Similar penalties held for readers who converted a book's content into an open file format, even if their only intention was to read the book on a different computer in their home. Unlike a normal book, the reader no longer held the right to lend, copy, or resell an e-book. They only had the right to read it on an authorized machine, warned Stallman: +={Digital Millennium Copyright Act} + +_1 We still have the same old freedoms in using paper books.But if e-books replace printed books, that exception will do little good. With "electronic ink," which makes it possible to download new text onto an apparently printed piece of paper, even newspapers could become ephemeral. Imagine:no more used book stores; no more lending a book to your friend; no more borrowing one from the public library - no more "leaks" that might give someone a chance to read without paying. (And judging from the ads for Microsoft Reader, no more anonymous purchasing of books either.)This is the world publishers have in mind for us.~{ See "Freedom - Or Copyright?" (May, 2000), \\ http://www.technologyreview.com/articles/stallman0500.asp. }~ + +Needless to say, the essay caused some concern. Neither Tracy nor I had discussed the software her company would use nor had we discussed the type of copyright [license] that would govern the e-book's usage. I mentioned the /{Technology Review}/ article and asked if she could give me information on her company's e-book policies. Tracy promised to get back to me. + +Eager to get started, I decided to call Stallman anyway and mention the book idea to him. When I did, he expressed immediate interest and immediate concern. "Did you read my essay on e-books?" he asked. + +When I told him, yes, I had read the essay and was waiting to hear back from the publisher, Stallman laid out two conditions: he didn't want to lend support to an e-book licensing mechanism he fundamentally opposed, and he didn't want to come off as lending support. "I don't want to participate in anything that makes me look like a hypocrite," he said. + +For Stallman, the software issue was secondary to the copyright issue. He said he was willing to ignore whatever software the publisher or its third-party vendors employed just so long as the company specified within the copyright that readers were free to make and distribute verbatim copies of the e-book's content. Stallman pointed to Stephen King's /{The Plant}/ as a possible model. In June, 2000, King announced on his official web site that he was self-publishing /{The Plant}/ in serial form. According to the announcement, the book's total cost would be $13, spread out over a series of $1 installments. As long as at least 75% of the readers paid for each chapter, King promised to continue releasing new installments. By August, the plan seemed to be working, as King had published the first two chapters with a third on the way. +={King, Stephen;open source+4;Plant, The (King)} + +"I'd be willing to accept something like that," Stallman said. "As long as it also permitted verbatim copying." [RMS: As I recall, I also raised the issue of encryption; the text two paragraphs further down confirms this. I would not have agreed to publish the book in a way that /{required}/ a non-free program to read it.] + +I forwarded the information to Tracy. Feeling confident that she and I might be able to work out an equitable arrangement, I called up Stallman and set up the first interview for the book. Stallman agreed to the interview without making a second inquiry into the status issue. Shortly after the first interview, I raced to set up a second interview (this one in Kihei), squeezing it in before Stallman headed off on a 14-day vacation to Tahiti. [RMS: That was not a pure vacation; I gave a speech there too.] +={Kihei (Hawaii)} + +It was during Stallman's vacation that the bad news came from Tracy. Her company's legal department didn't want to adjust its [license] notice on the e-books. Readers who wanted to make their books transferable would [first have to crack the encryption code, to be able to convert the book to a free, public format such as HTML. This would be illegal and they might face criminal penalties.] + +With two fresh interviews under my belt, I didn't see any way to write the book without resorting to the new material. I quickly set up a trip to New York to meet with my agent and with Tracy to see if there was a compromise solution. + +When I flew to New York, I met my agent, Henning Guttman. It was our first face-to-face meeting, and Henning seemed pessimistic about our chances of forcing a compromise, at least on the publisher's end. The large, established publishing houses already viewed the e-book format with enough suspicion and weren't in the mood to experiment with copyright language that made it easier for readers to avoid payment. As an agent who specialized in technology books, however,Henning was intrigued by the novel nature of my predicament. I told him about the two interviews I'd already gathered and the promise not to publish the book in a way that made Stallman "look like a hypocrite." Agreeing that I was in an ethical bind, Henning suggested we make that our negotiating point. +={Guttman, Henning} + +Barring that, Henning said, we could always take the carrot-and-stick approach. The carrot would be the publicity that came with publishing an e-book that honored the hacker community's internal ethics. The stick would be the risks associated with publishing an e-book that didn't. Nine months before Dmitry Sklyarov became an Internet /{cause célèbre}/, we knew it was only a matter of time before an enterprising programmer revealed how to hack e-books. We also knew that a major publishing house releasing an [encrypted] e-book on Richard M. Stallman was the software equivalent of putting "Steal This E-Book" on the cover. +={Sklyarov, Dmitri} + +After my meeting with Henning, I called Stallman. Hoping to make the carrot more enticing, I discussed a number of potential compromises. What if the publisher released the book's content under a[dual] license, something similar to what Sun Microsystems had done with Open Office, the free software desktop applications suite? The publisher could then release DRM-restricted~{ RMS: Williams wrote "commercial" here, but that is a misnomer, since it means "connected with business." All these versions would be commercial if a company published them. }~ versions of the e-book under [its usual] format, taking advantage of all the bells and whistles that went with the e-book software, while releasing the copyable version under a less aesthetically pleasing HTML format. + +Stallman told me he didn't mind the [dual-license] idea, but he did dislike the idea of making the freely copyable version inferior to the restricted version. Besides, he said [on second thought, this case was different precisely because he had] a way to control the outcome. He could refuse to cooperate. + +[RMS: The question was whether it would be wrong for me to agree to the restricted version. I can endorse the free version of Sun's Open Office, because it is free software and much better than nothing,while at the same time I reject the non-free version. There is no self- contradiction here, because Sun didn't need or ask my approval for the non-free version; I was not responsible for its existence. In this case, if I had said yes to the non-freely-copyable version, the onus would fall on me.] + +I made a few more suggestions with little effect. About the only thing I could get out of Stallman was a concession [RMS: i.e., a further compromise] that the e-book's [license] restrict all forms of file sharing to "noncommercial redistribution." + +Before I signed off, Stallman suggested I tell the publisher that I'd promised Stallman that the work would be [freely sharable]. I told Stallman I couldn't agree to that statement [RMS: though it was true,since he had accepted my conditions at the outset] but that I did view the book as unfinishable without his cooperation. Seemingly satisfied,Stallman hung up with his usual sign-off line: "Happy hacking." + +Henning and I met with Tracy the next day. Tracy said her company was willing to publish copyable excerpts in a unencrypted format but would limit the excerpts to 500 words. Henning informed her that this wouldn't be enough for me to get around my ethical obligation to Stallman. Tracy mentioned her own company's contractual obligation to online vendors such as Amazon.com. Even if the company decided to open up its e-book content this one time, it faced the risk of its partners calling it a breach of contract. Barring a change of heart in the executive suite or on the part of Stallman, the decision was up tome. I could use the interviews and go against my earlier agreement with Stallman, or I could plead journalistic ethics and back out of the verbal agreement to do the book. +={Amazon.com} + +Following the meeting, my agent and I relocated to a pub on Third Ave. I used his cell phone to call Stallman, leaving a message when nobody answered. Henning left for a moment, giving me time to collect my thoughts. When he returned, he was holding up the cell phone. + +"It's Stallman," Henning said. + +The conversation got off badly from the start. I relayed Tracy's comment about the publisher's contractual obligations. + +"So," Stallman said bluntly. "Why should I give a damn about their contractual obligations?" + +Because asking a major publishing house to risk a legal battle with its vendors over a 30,000-word e-book is a tall order, I suggested. [RMS: His unstated premise was that I couldn't possibly refuse this deal for mere principle.] + +"Don't you see?" Stallman said. "That's exactly why I'm doing this. I want a signal victory. I want them to make a choice between freedom and business as usual." + +As the words "signal victory" echoed in my head, I felt my attention wander momentarily to the passing foot traffic on the sidewalk. Coming into the bar, I had been pleased to notice that the location was less than half a block away from the street corner memorialized in the 1976 Ramones song, "53rd and 3rd," a song I always enjoyed playing in my days as a musician. Like the perpetually frustrated street hustler depicted in that song, I could feel things falling apart as quickly as they had come together. The irony was palpable. After weeks of gleefully recording other people's laments, I found myself in the position of trying to pull off the rarest of feats: a Richard Stallman compromise. When I continued hemming and hawing, pleading the publisher's position and revealing my growing sympathy for it,Stallman, like an animal smelling blood, attacked. + +"So that's it? You're just going to screw me? You're just going to bend to their will?" + +[RMS: The quotations show that Williams' interpretation of this conversation was totally wrong. He compares me to a predator, but I was only saying no to the deal he was badgering me to accept.I had already made several compromises, some described above; I just refused to compromise my principles entirely away. I often do this; people who aren't satisfied say I "refused to compromise at all, "but that is an exaggeration; \\ see http://www.gnu.org/philosophy/compromise.html. Then I feared he was going to disregard the conditions he had previously agreed to, and publish the book with DRM despite my refusal. What I smelled was not his "blood" but possible betrayal.] + +I brought up the issue of a dual-copyright again. + +"You mean license," Stallman said curtly. + +"Yeah, license. Copyright. Whatever," I said, feeling suddenly like a wounded tuna trailing a rich plume of plasma in the water. + +"Aw, why didn't you just fucking do what I told you to do!" he shouted. [RMS: I think this quotation was garbled, both because using "fucking" as an adverb was never part of my speech pattern, and because the words do not fit the circumstances. The words he quotes are a rebuke to a disobedient subordinate. I felt he had an ethical obligation, but he was not my subordinate, and I would not have spoken to him as one. Using notes rather than a recorder, he could not reliably retain the exact words.] + +I must have been arguing on behalf of the publisher to the very end, because in my notes I managed to save a final Stallman chestnut: "I don't care. What they're doing is evil. I can't support evil. Goodbye." [RMS: It sounds like I had concluded that he would never take no for an answer, and the only way to end the conversation without accepting his proposition was to hang up on him.] + +As soon as I put the phone down, my agent slid a freshly poured Guinness to me. "I figured you might need this," he said with a laugh. "I could see you shaking there towards the end." + +I was indeed shaking. The shaking wouldn't stop until the Guinness was more than halfway gone. It felt weird, hearing myself characterized as an emissary of "evil." [RMS: My words as quoted criticize the publisher, not Williams personally. If he took it personally, perhaps that indicates he was starting to take ethical responsibility for the deal he had pressed me to accept.] It felt weirder still, knowing that three months before, I was sitting in an Oakland apartment trying to come up with my next story idea. Now, I was sitting in a part of the world I'd only known through rock songs, taking meetings with publishing executives and drinking beer with an agent I'd never even laid eyes on until the day before. It was all too surreal, like watching my life reflected back as a movie montage. + +About that time, my internal absurdity meter kicked in. The initial shaking gave way to convulsions of laughter. To my agent, I must have looked like a another fragile author undergoing an untimely emotional breakdown. To me, I was just starting to appreciate the cynical beauty of my situation. Deal or no deal, I already had the makings of a pretty good story. It was only a matter of finding a place to tell it. When my laughing convulsions finally subsided, I held up my drink in a toast. + +"Welcome to the front lines, my friend," I said, clinking pints with my agent. "Might as well enjoy it." + +If this story really were a play, here's where it would take a momentary, romantic interlude. Disheartened by the tense nature of our meeting, Tracy invited Henning and me to go out for drinks with her and some of her coworkers. We left the bar on Third Ave., headed down to the East Village, and caught up with Tracy and her friends. + +Once there, I spoke with Tracy, careful to avoid shop talk. Our conversation was pleasant, relaxed. Before parting, we agreed to meet the next night. Once again, the conversation was pleasant, so pleasant that the Stallman e-book became almost a distant memory. + +When I got back to Oakland, I called around to various journalist friends and acquaintances. I recounted my predicament. Most upbraided me for giving up too much ground to Stallman in the pre-interview negotiation. [RMS: Those who have read the whole book know that I would never have dropped the conditions.] A former j-school professor suggested I ignore Stallman's "hypocrite" comment and just write the story. Reporters who knew of Stallman's media-savviness ex-pressed sympathy but uniformly offered the same response: it's your call. + +I decided to put the book on the back burner. Even with the interviews, I wasn't making much progress. Besides, it gave me a chance to speak with Tracy without running things past Henning first.By Christmas we had traded visits: she flying out to the west coast once, me flying out to New York a second time. The day before New Year's Eve, I proposed. Deciding which coast to live on, I picked New York. By February, I packed up my laptop computer and all my research notes related to the Stallman biography, and we winged our way to JFK Airport. Tracy and I were married on May 11. So much for failed book deals. + +During the summer, I began to contemplate turning my interview notes into a magazine article. Ethically, I felt in the clear doing so,since the original interview terms said nothing about traditional print media. To be honest, I also felt a bit more comfortable writing about Stallman after eight months of radio silence. Since our telephone conversation in September, I'd only received two emails from Stallman.Both chastised me for using "Linux" instead of "GNU/Linux" in a pair of articles for the web magazine /{Upside Today}/. Aside from that, I had enjoyed the silence. In June, about a week after the New York University speech, I took a crack at writing a 5,000-word magazine-length story about Stallman. This time, the words flowed. The distance had helped restore my lost sense of emotional perspective, I suppose. +={Upside Today web magazine} + +In July, a full year after the original email from Tracy, I got a call from Henning. He told me that O'Reilly & Associates, a publishing house out of Sebastopol, California, was interested in the running the Stallman story as a biography. [RMS: I have a vague memory that I suggested contacting O'Reilly, but I can't be sure after all these years.] The news pleased me. Of all the publishing houses in the world, O'Reilly, the same company that had published Eric Raymond's /{The Cathedral and the Bazaar}/, seemed the most sensitive to the issues that had killed the earlier e-book. As a reporter, I had relied heavily on the O'Reilly book /{Open Sources}/ as a historical reference. I also knew that various chapters of the book, including a chapter written by Stallman, had been published with [license] notices that permitted redistribution. Such knowledge would come in handy if the issue of electronic publication ever came up again. +={Cathedral and the Bazaar, The (Raymond);O'Reilly & Associates;Open Sources (DiBona, et al)+2;Raymond, Eric} + +Sure enough, the issue did come up. I learned through Henning that O'Reilly intended to publish the biography both as a book and as part of its new Safari Tech Books Online subscription service. The Safari user license would involve special restrictions,~{ See "Safari Tech Books Online; Subscriber Agreement: Terms of Service" \\ http://my.safaribooksonline.com/termsofservice. As of December, 2009, the see-books require non-free reader software, so people should refuse to use them. }~ Henning warned, but O'Reilly was willing to allow for a copyright that permitted users to copy and share the book's text regardless of medium. Basically, as author, I had the choice between two licenses: the Open Publication License or the GNU Free Documentation License. +={Open Publication License (OPL)+8;OPL (Open Publication License)+8;Safari Tech Books Online subscription service} + +I checked out the contents and background of each license. The Open Publication License (OPL)~{ See "The Open Publication License: Draft v1.0" (June 8, 1999), \\ http://opencontent.org/openpub/. }~ gives readers the right to reproduce and distribute a work, in whole or in part, in any medium "physical or electronic," provided the copied work retains the Open Publication License. It also permits modification of a work, provided certain conditions are met. Finally, the Open Publication License includes a number of options, which, if selected by the author, can limit the creation of "substantively modified" versions or book-form derivatives without prior author approval. + +The GNU Free Documentation License (GFDL), meanwhile, permits the copying and distribution of a document in any medium, provided the resulting work carries the same license.~{ See "The GNU Free Documentation License: Version 1.3" (November, 2008), \\ http://www.gnu.org/copyleft/fdl.html. }~ +={GFDL (GNU Free Documentation License)+1;GNU Free Documentation License (GFDL)+1} + +It also permits the modification of a document provided certain conditions. Unlike the OPL, however, it does not give authors the option to restrict certain modifications. It also does not give authors the right to reject modifications that might result in a competitive book product. It does require certain forms of front - and back-cover information if a party other than the copyright holder wishes to publish more than 100 copies of a protected work, however. + +In the course of researching the licenses, I also made sure to visit the GNU Project web page titled "Various Licenses and Comments About Them."~{ See http://www.gnu.org/philosophy/license-list.html. }~ + +On that page, I found a Stallman critique of the Open Publication License. Stallman's critique related to the creation of modified works and the ability of an author to select either one of the OPL's options to restrict modification. If an author didn't want to select either option, it was better to use the GFDL instead, Stallman noted, since it minimized the risk of the non-selected options popping up in modified versions of a document. + +The importance of modification in both licenses was a reflection of their original purpose - namely, to give software-manual owners a chance to improve their manuals and publicize those improvements to the rest of the community. Since my book wasn't a manual, I had little concern about the modification clause in either license. My only concern was giving users the freedom to exchange copies of the book or make copies of the content, the same freedom they would have enjoyed if they purchased a hardcover book. Deeming either license suitable for this purpose, I signed the O'Reilly contract when it came to me. + +Still, the notion of unrestricted modification intrigued me. In my early negotiations with Tracy, I had pitched the merits of a GPL-style license for the e-book's content. At worst, I said, the license would guarantee a lot of positive publicity for the e-book. At best, it would encourage readers to participate in the book-writing process. As an author, I was willing to let other people amend my work just so long as my name always got top billing. Besides, it might even be interesting to watch the book evolve. I pictured later editions looking much like online versions of the /{Talmud}/, my original text in a central column surrounded by illuminating, third-party commentary in the margins. + +My idea drew inspiration from Project Xanadu (http://www.xanadu.com), the legendary software concept originally conceived by Ted Nelson in 1960. During the O'Reilly Open Source Conference in 1999, I had seen the first demonstration of the project's [free] offshoot Udanax and had been wowed by the result. In one demonstration sequence, Udanax displayed a parent document and a derivative work in a similar two-column, plain-text format. With a click of the button, the program introduced lines linking each sentence in the parent to its conceptual offshoot in the derivative. An e-book biography of Richard M. Stallman didn't have to be Udanax-enabled, but given such technological possibilities, why not give users a chance to play around?~{ Anybody willing to "port" this book over to Udanax, the free software version of Xanadu, will receive enthusiastic support from me. To find out more about this intriguing technology, \\ visit http://www.udanax.com. }~ +={Nelson, Ted;O'Reilly & Associates:Open Source Conferences;Project Xanadu;Udanax} + +When Laurie Petrycki, my editor at O'Reilly, gave me a choice be-tween the OPL or the GFDL, I indulged the fantasy once again. By September of 2001, the month I signed the contract, e-books had become almost a dead topic. Many publishing houses, Tracy's included,were shutting down their e-book imprints for lack of interest. I had to wonder. If these companies had treated e-books not as a form of publication but as a form of community building, would those imprints have survived? +={GFDL (GNU Free Documentation License)+1;GNU Free Documentation License (GFDL)+1;Petrycki, Laurie} + +After I signed the contract, I notified Stallman that the book project was back on. I mentioned the choice O'Reilly was giving me between the Open Publication License and the GNU Free Documentation License. I told him I was leaning toward the OPL, if only for the fact I saw no reason to give O'Reilly's competitors a chance to print the same book under a different cover. Stallman wrote back, arguing in favor of the GFDL, noting that O'Reilly had already used it several times in the past. Despite the events of the past year, I suggested a deal. I would choose the GFDL if it gave me the possibility to do more interviews and if Stallman agreed to help O'Reilly publicize the book. Stallman agreed to participate in more interviews but said that his participation in publicity-related events would depend on the content of the book. Viewing this as only fair, I set up an interview for December 17, 2001 in Cambridge. + +I set up the interview to coincide with a business trip my wife Tracy was taking to Boston. Two days before leaving, Tracy suggested I invite Stallman out to dinner. + +"After all," she said, "he is the one who brought us together."I sent an email to Stallman, who promptly sent a return email accepting the offer. When I drove up to Boston the next day, I met Tracy at her hotel and hopped the T to head over to MIT. When we got to Tech Square, I found Stallman in the middle of a conversation just as we knocked on the door. + +"I hope you don't mind," he said, pulling the door open far enough so that Tracy and I could just barely hear Stallman's conversational counterpart. It was a youngish woman, mid-20s I'd say, named Sarah. + +"I took the liberty of inviting somebody else to have dinner with us," Stallman said, matter-of-factly, giving me the same catlike smile he gave me back in that Palo Alto restaurant. + +To be honest, I wasn't too surprised. The news that Stallman had a new female friend had reached me a few weeks before, courtesy of Stallman's mother. "In fact, they both went to Japan last month when Richard went over to accept the Takeda Award," Lippman told me at the time.~{ Alas, I didn't find out about the Takeda Foundation's decision to award Stallman, along with Linus Torvalds and Ken Sakamura, with its first-ever award for"Techno-Entrepreneurial Achievement for Social/Economic Well-Being" until after Stallman had made the trip to Japan to accept the award. For more information about the award and its accompanying $1 million prize, visit the Takeda site, \\ http://www.takeda-foundation.jp. }~ +={Takeda Awards} + +On the way over to the restaurant, I learned the circumstances of Sarah and Richard's first meeting. Interestingly, the circumstances were very familiar. Working on her own fictional book, Sarah said she heard about Stallman and what an interesting character he was. She promptly decided to create a character in her book on Stallman and,in the interests of researching the character, set up an interview with Stallman. Things quickly went from there. The two had been dating since the beginning of 2001, she said. + +"I really admired the way Richard built up an entire political movement to address an issue of profound personal concern," Sarah said,explaining her attraction to Stallman. + +My wife immediately threw back the question: "What was the issue?" "Crushing loneliness." During dinner, I let the women do the talking and spent most of the time trying to detect clues as to whether the last 12 months had softened Stallman in any significant way. I didn't see anything to suggest they had. Although more flirtatious than I remembered,Stallman retained the same general level of prickliness. At one point,my wife uttered an emphatic "God forbid" only to receive a typical Stallman rebuke. + +"I hate to break it to you, but there is no God," Stallman said.[RMS: I must have been too deadpan. He could justly accuse me of being a wise guy, but not of rebuking.] + +Afterwards, when the dinner was complete and Sarah had departed, Stallman seemed to let his guard down a little. As we walked to a nearby bookstore, he admitted that the last 12 months had dramatically changed his outlook on life. "I thought I was going to be alone forever," he said. "I'm glad I was wrong." + +Before parting, Stallman handed me his "pleasure card," a business card listing Stallman's address, phone number, and favorite pastimes("sharing good books, good food and exotic music and dance") so that I might set up a final interview. + +The next day, over another meal of dim sum, Stallman seemed even more lovestruck than the night before. Recalling his debates with Currier House dorm maters over the benefits and drawbacks of an immortality serum, Stallman expressed hope that scientists might some day come up with the key to immortality. "Now that I'm finally starting to have happiness in my life, I want to have [a longer life]," he said. + +When I mentioned Sarah's "crushing loneliness" comment, Stallman failed to see a connection between loneliness on a physical or spiritual level and loneliness on a hacker level. "The impulse to share code is about friendship but friendship at a much lower level," he said. Later, however, when the subject came up again, Stallman did admit that loneliness, or the fear of perpetual loneliness [RMS: at the hacker-to-hacker, community level, that is], had played a major role in fueling his determination during the earliest days of the GNU Project. + +"My fascination with computers was not a consequence of anything else," he said. "I wouldn't have been less fascinated with computers if I had been popular and all the women flocked to me. However, it's certainly true the experience of feeling I didn't have a home, finding one and losing it, finding another and having it destroyed, affected me deeply. The one I lost was the dorm. The one that was destroyed was the AI Lab. The precariousness of not having any kind of home or community was very powerful. It made me want to fight to get it back." + +After the interview, I couldn't help but feel a certain sense of emotional symmetry. Hearing Sarah describe what attracted her to Stallman and hearing Stallman himself describe the emotions that prompted him to take up the free software cause, I was reminded of my own reasons for writing this book. Since July, 2000, I have learned to appreciate both the seductive and the repellent sides of the Richard Stallman persona. Like Eben Moglen before me, I feel that dismissing that persona as epiphenomenal or distracting in relation to the overall free software movement would be a grievous mistake. In many ways the two are so mutually defining as to be indistinguishable. + +[RMS: Williams objectifies his reactions, both positive and negative, as parts of me, but they are functions also of his own attitudes about appearance, conformity, and business success.] + +While I'm sure not every reader feels the same level of affinity for Stallman...I'm sure most will agree [that] few individuals offer as singular a human portrait as Richard M. Stallman. It is my sincere hope that, with this initial portrait complete and with the help of the GFDL, others will feel a similar urge to add their own perspective to that portrait. + +Endnotes + +1~ Appendix A - Hack, Hackers and Hacking +={hackers+18} + +To understand the full meaning of the word "hacker," it helps to examine the word's etymology over the years. + +/{The New Hacker Dictionary}/, an online compendium of software-programmer jargon, officially lists nine different connotations of the word "hack" and a similar number for "hacker." Then again, the same publication also includes an accompanying essay that quotes Phil Agre, an MIT hacker who warns readers not to be fooled by the word's perceived flexibility. "Hack has only one meaning," argues Agre. "An extremely subtle and profound one which defies articulation." Richard Stallman tries to articulate it with the phrase, "Playful cleverness." +={Agre, Phil;New Hacker Dictionary, The} + +Regardless of the width or narrowness of the definition, most modern hackers trace the word back to MIT, where the term bubbled upas popular item of student jargon in the early 1950s. In 1990 the MIT Museum put together a journal documenting the hacking phenomenon.According to the journal, students who attended the institute during the fifties used the word "hack" the way a modern student might use the word "goof." Hanging a jalopy out a dormitory window was a "hack," but anything harsh or malicious - e.g., egging a rival dorm's windows or defacing a campus statue - fell outside the bounds. Implicit within the definition of "hack" was a spirit of harmless, creative fun. +={MIT Museum} + +This spirit would inspire the word's gerund form: "hacking." A 1950s student who spent the better part of the afternoon talking on the phone or dismantling a radio might describe the activity as "hacking." Again, a modern speaker would substitute the verb form of "goof" -"goofing" or "goofing off" - to describe the same activity. + +As the 1950s progressed, the word "hack" acquired a sharper, more rebellious edge. The MIT of the 1950s was overly competitive, and hacking emerged as both a reaction to and extension of that competitive culture. Goofs and pranks suddenly became a way to blow off steam, thumb one's nose at campus administration, and indulge creative thinking and behavior stifled by the Institute's rigorous undergraduate curriculum. With its myriad hallways and underground steam tunnels, the Institute offered plenty of exploration opportunities for the student undaunted by locked doors and "No Trespassing"signs. Students began to refer to their off-limits explorations as "tunnel hacking." Above ground, the campus phone system offered similar opportunities. Through casual experimentation and due diligence, students learned how to perform humorous tricks. Drawing inspiration from the more traditional pursuit of tunnel hacking, students quickly dubbed this new activity "phone hacking." + +The combined emphasis on creative play and restriction-free exploration would serve as the basis for the future mutations of the hacking term. The first self-described computer hackers of the 1960s MIT campus originated from a late 1950s student group called the Tech Model Railroad Club. A tight clique within the club was the Signals and Power (S&P) Committee - the group behind the railroad club's electrical circuitry system. The system was a sophisticated assortment of relays and switches similar to the kind that controlled the local cam-pus phone system. To control it, a member of the group simply dialed in commands via a connected phone and watched the trains do his bidding. +={Tech Model Railroad Club;S&P (Signals and Power) Committee+2;Signals and Power (S&P) Committee+2} + +The nascent electrical engineers responsible for building and maintaining this system saw their activity as similar in spirit to phone hacking. Adopting the hacking term, they began refining it even further. From the S&P hacker point of view, using one less relay to operate a particular stretch of track meant having one more relay for future play. Hacking subtly shifted from a synonym for idle play to a synonym for idle play that improved the overall performance or efficiency of the club's railroad system at the same time. Soon S&P committee members proudly referred to the entire activity of improving and reshaping the track's underlying circuitry as "hacking" and to the people who did it as "hackers." + +Given their affinity for sophisticated electronics - not to mention the traditional MIT-student disregard for closed doors and "No Trespassing" signs - it didn't take long before the hackers caught wind of a new machine on campus. Dubbed the TX-0, the machine was one of the first commercially marketed computers. By the end of the 1950s, the entire S&P clique had migrated en masse over to the TX-0 control room, bringing the spirit of creative play with them.The wide-open realm of computer programming would encourage yet another mutation in etymology. "To hack" no longer meant soldering unusual looking circuits, but cobbling together software programs with little regard to "official" methods or software-writing procedures. It also meant improving the efficiency and speed of already-existing pro-grams that tended to hog up machine resources. True to the word's roots, it also meant writing programs that served no other purpose than to amuse or entertain. +={TX-0 computer} + +A classic example of this expanded hacking definition is the game Spacewar, the first computer-based video game. Developed by MIT hackers in the early 1960s, Spacewar had all the traditional hacking definitions: it was goofy and random, serving little useful purpose other than providing a nightly distraction for the dozen or so hackers who delighted in playing it. From a software perspective, however,it was a monumental testament to innovation of programming skill.It was also completely free. Because hackers had built it for fun,they saw no reason to guard their creation, sharing it extensively with other programmers. By the end of the 1960s, Spacewar had become a diversion for programmers around the world, if they had the (then rather rare) graphical displays. + +This notion of collective innovation and communal software ownership distanced the act of computer hacking in the 1960s from the tunnel hacking and phone hacking of the 1950s. The latter pursuits tended to be solo or small-group activities. Tunnel and phone hackers relied heavily on campus lore, but the off-limits nature of their activity discouraged the open circulation of new discoveries. Computer hackers, on the other hand, did their work amid a scientific field biased toward collaboration and the rewarding of innovation. Hackers and "official" computer scientists weren't always the best of allies, but in the rapid evolution of the field, the two species of computer programmer evolved a cooperative - some might say symbiotic - relationship. + +Hackers had little respect for bureaucrats' rules. They regarded computer security systems that obstructed access to the machine as just another bug, to be worked around or fixed if possible. Thus,breaking security (but not for malicious purposes) was a recognized aspect of hacking in 1970, useful for practical jokes (the victim might say, "I think someone's hacking me") as well as for gaining access to the computer. But it was not central to the idea of hacking. Where there was a security obstacle, hackers were proud to display their wits in surmounting it; however, given the choice, as at the MIT AI Lab,they chose to have no obstacle and do other kinds of hacking. Where there is no security, nobody needs to break it. + +It is a testament to the original computer hackers' prodigious skill that later programmers, including Richard M. Stallman, aspired to wear the same hacker mantle. By the mid to late 1970s, the term"hacker" had acquired elite connotations. In a general sense, a computer hacker was any person who wrote software code for the sake of writing software code. In the particular sense, however, it was a testament to programming skill. Like the term "artist," the meaning carried tribal overtones. To describe a fellow programmer as a hacker was a sign of respect. To describe oneself as a hacker was a sign of immense personal confidence. Either way, the original looseness of the computer-hacker appellation diminished as computers became more common. + +As the definition tightened, "computer" hacking acquired additional semantic overtones. The hackers at the MIT AI Lab shared many other characteristics, including love of Chinese food, disgust for tobacco smoke, and avoidance of alcohol, tobacco and other addictive drugs. These characteristics became part of some people's under-standing of what it meant to be a hacker, and the community exerted an influence on newcomers even though it did not demand conformity. However, these cultural associations disappeared with the AI Lab hacker community. Today, most hackers resemble the surrounding society on these points. + +As the hackers at elite institutions such as MIT, Stanford, and Carnegie Mellon conversed about hacks they admired, they also considered the ethics of their activity, and began to speak openly of a "hacker ethic": the yet-unwritten rules that governed a hacker's day-to-day behavior. In the 1984 book /{Hackers}/, author Steven Levy, after much research and consultation, codified the hacker ethic as five core hacker tenets. +={Hackers (Levy)+1} + +In the 1980s, computer use expanded greatly, and so did security breaking. Mostly it was done by insiders with criminal intent, who were generally not hackers at all. However, occasionally the police and administrators, who defined disobedience as evil, traced a computer "intrusion" back to a hacker whose idea of ethics was "Don't hurt people." Journalists published articles in which "hacking" meant breaking security, and usually endorsed the administrators' view of the matter. Although books like /{Hackers}/ did much to document the original spirit of exploration that gave rise to the hacking culture, for most newspaper reporters and readers the term "computer hacker"became a synonym for "electronic burglar." + +By the late 1980s, many U.S. teenagers had access to computers.Some were alienated from society; inspired by journalists' distorted picture of "hacking," they expressed their resentment by breaking computer security much as other alienated teens might have done it by breaking windows. They began to call themselves "hackers," but they never learned the MIT hackers' principle against malicious behavior.As younger programmers began employing their computer skills to harmful ends - creating and disseminating computer viruses, breaking into computer systems for mischief, deliberately causing computers to crash - the term "hacker" acquired a punk, nihilistic edge which attracted more people with similar attitudes. + +Hackers have railed against this perceived mis-usage of their self-designator for nearly two decades. Stallman, not one to take things lying down, coined the term "cracking" for "security breaking" so that people could more easily avoid calling it "hacking." But the distinction between hacking and cracking is often misunderstood. These two descriptive terms are not meant to be exclusive. It's not that "Hacking is here, and cracking is there, and never the twain shall meet." Hacking and cracking are different attributes of activities, just as "young"and "tall" are different attributes of persons. + +Most hacking does not involve security, so it is not cracking. Most cracking is done for profit or malice and not in a playful spirit, so it is not hacking. Once in a while a single act may qualify as cracking and as hacking, but that is not the usual case. The hacker spirit includes irreverence for rules, but most hacks do not break rules. Cracking is by definition disobedience, but it is not necessarily malicious or harmful. The computer security field distinguishes between "black hat"and "white hat" crackers - i.e., crackers who turn toward destructive,malicious ends versus those who probe security in order to fix it. + +The hacker's central principle not to be malicious remains the primary cultural link between the notion of hacking in the early 21st century and hacking in the 1950s. It is important to note that, as the idea of computer hacking has evolved over the last four decades,the original notion of hacking - i.e., performing pranks or exploring underground tunnels - remains intact. In the fall of 2000, the MIT Museum paid tribute to the Institute's age-old hacking tradition with a dedicated exhibit, the Hall of Hacks. The exhibit includes a number of photographs dating back to the 1920s, including one involving amock police cruiser. In 1993, students paid homage to the original MIT notion of hacking by placing the same police cruiser, lights flashing, atop the Institute's main dome. The cruiser's vanity license plate read IHTFP, a popular MIT acronym with many meanings. The most noteworthy version, itself dating back to the pressure-filled world of MIT student life in the 1950s, is "I hate this fucking place." In 1990,however, the Museum used the acronym as a basis for a journal on the history of hacks. Titled /{The Journal of the Institute for Hacks,Tomfoolery, and Pranks}/, it offers an adept summary of the hacking. +={Hall of Hacks} + +"In the culture of hacking, an elegant, simple creation is as highly valued as it is in pure science," writes /{Boston Globe}/ reporter Randolph Ryan in a 1993 article attached to the police car exhibit. "A Hack differs from the ordinary college prank in that the event usually requires careful planning, engineering and finesse, and has an under-lying wit and inventiveness," Ryan writes. "The unwritten rule holds that a hack should be good-natured, non-destructive and safe. In fact,hackers sometimes assist in dismantling their own handiwork." +={Boston Globe;Ryan, Randolph} + +The urge to confine the culture of computer hacking within the same ethical boundaries is well-meaning but impossible. Although most software hacks aspire to the same spirit of elegance and simplicity,the software medium offers less chance for reversibility. Dismantling a police cruiser is easy compared with dismantling an idea, especially an idea whose time has come. + +Once a vague item of obscure student jargon, the word "hacker" has become a linguistic billiard ball, subject to political spin and ethical nuances. Perhaps this is why so many hackers and journalists enjoy using it. We cannot predict how people will use the word in the future.We can, however, decide how we will use it ourselves. Using the term "cracking" rather than "hacking," when you mean "security breaking,"shows respect for Stallman and all the hackers mentioned in this book,and helps preserve something which all computer users have benefited from: the hacker spirit. +={crackers} + +1~ Appendix B - GNU Free Documentation License +={GFDL (GNU Free Documentation License)+64;GNU Free Documentation License (GFDL)+64} + +Version 1.3, 3 November 2008 + +Copyright © 2000, 2001, 2002, 2007, 2008 Free Software Foundation + +http://fsf.org/ + +Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. + +2~ Preamble + +The purpose of this License is to make a manual, textbook, or other functional and useful document "free" in the sense of freedom:to assure everyone the effective freedom to copy and redistribute it,with or without modifying it, either commercially or non-commercially.Secondarily, this License preserves for the author and publisher a way to get credit for their work, while not being considered responsible for modifications made by others. + +This License is a kind of "copyleft", which means that derivative works of the document must themselves be free in the same sense.It complements the GNU General Public License, which is a copyleft license designed for free software. + +We have designed this License in order to use it for manuals for free software, because free software needs free documentation: a free program should come with manuals providing the same freedoms that the software does. 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The primary font is 10-point Computer Modern. + +Digital versions of the book, including the LATEX source code, are available at http://www.fsf.org/faif. Improvements are welcome,and can be sent to sales@gnu.org. diff --git a/data/v3/samples/free_culture.lawrence_lessig.sst b/data/v3/samples/free_culture.lawrence_lessig.sst new file mode 100644 index 0000000..a2e059a --- /dev/null +++ b/data/v3/samples/free_culture.lawrence_lessig.sst @@ -0,0 +1,3608 @@ +% SiSU 2.0 + +@title: Free Culture + :subtitle: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity + +@creator: + :author: Lessig, Lawrence + +@date: + :published: 2004-03-25 + :created: 2004-03-25 + :issued: 2004-03-25 + :available: 2004-03-25 + :modified: 2004-03-25 + :valid: 2004-03-25 + +% :created: 2004-04-08 + +@rights: + :copyright: Copyright (C) Lawrence Lessig, 2004. + :license: Free Culture is Licensed under a Creative Commons License. This License permits non-commercial use of this work, so long as attribution is given. For more information about the license, visit http://creativecommons.org/licenses/by-nc/1.0/ + +@classify: + :type: Book + :topic_register: SiSU:markup sample:book;copyright;free culture;creative commons;intellectual property:copyright:creative commons;book:subject:culture|copyright|society|public policy|mass media;culture;society + :isbn: 9781594200069 + :oclc: 53324884 + +% :isbn: 1594200068 + +% :language: US + +@make: + :breaks: new=:B; break=1 + :skin: skin_lessig + +@links: + {Free Culture}http://www.free-culture.cc + {Remixes}http://www.free-culture.cc/remixes/ + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {@ Wikipedia}http://en.wikipedia.org/wiki/Free_Culture_%28book%29 + {@ Amazon.com}http://www.amazon.com/gp/product/1594200068 + {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=1594200068 + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + { CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow + {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow + { Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + +:A~ @title @author + +1~attribution Attribution~# + +To Eric Eldred - whose work first drew me to this cause, and for whom it continues still.~# + +:B~ PREFACE + +1~preface [Preface]-# + +!_ At the end +of his review of my first book, /{Code: And Other Laws of Cyberspace}/, David Pogue, a brilliant writer and author of countless technical and computer- related texts, wrote this: + +_1 Unlike actual law, Internet software has no capacity to punish. It doesn't affect people who aren't online (and only a tiny minority of the world population is). And if you don't like the Internet's system, you can always flip off the modem.~{ David Pogue, "Don't Just Chat, Do Something," /{New York Times,}/ 30 January 2000. }~ + +Pogue was skeptical of the core argument of the book - that software, or "code," functioned as a kind of law - and his review suggested the happy thought that if life in cyberspace got bad, we could always "drizzle, drazzle, druzzle, drome"- like simply flip a switch and be back home. Turn off the modem, unplug the computer, and any troubles that exist in /{that}/ space wouldn't "affect" us anymore. + +Pogue might have been right in 1999 - I'm skeptical, but maybe. But even if he was right then, the point is not right now: /{Free Culture}/ is about the troubles the Internet causes even after the modem is turned off. It is an argument about how the battles that now rage regarding life on-line have fundamentally affected "people who aren't online." There is no switch that will insulate us from the Internet's effect. + +But unlike /{Code}/, the argument here is not much about the Internet itself. It is instead about the consequence of the Internet to a part of our tradition that is much more fundamental, and, as hard as this is for a geek-wanna-be to admit, much more important. + +That tradition is the way our culture gets made. As I explain in the pages that follow, we come from a tradition of "free culture" - not "free" as in "free beer" (to borrow a phrase from the founder of the free-software movement, ~{ Richard M. Stallman, /{Free Software, Free Societies}/ 57 ( Joshua Gay, ed. 2002). }~ but "free" as in "free speech," "free markets," "free trade," "free enterprise," "free will," and "free elections." A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain /{as free as possible}/ from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a "permission culture" - a culture in which creators get to create only with the permission of the powerful, or of creators from the past. + +If we understood this change, I believe we would resist it. Not "we" on the Left or "you" on the Right, but we who have no stake in the particular industries of culture that defined the twentieth century. Whether you are on the Left or the Right, if you are in this sense disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental. + +We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC considered changes in media ownership rules that would relax limits on media concentration, an extraordinary coalition generated more than 700,000 letters to the FCC opposing the change. As William Safire described marching "uncomfortably alongside CodePink Women for Peace and the National Rifle Association, between liberal Olympia Snowe and conservative Ted Stevens," he formulated perhaps most simply just what was at stake: the concentration of power. And as he asked, +={power, concentration of+2} + +_1 Does that sound unconservative? Not to me. The concentration of power - political, corporate, media, cultural - should be anathema to conservatives. The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and the greatest expression of democracy."~{ William Safire, "The Great Media Gulp," /{New York Times,}/ 22 May 2003. }~ + +This idea is an element of the argument of /{Free Culture}/, though my focus is not just on the concentration of power produced by concentrations in ownership, but more importantly, if because less visibly, on the concentration of power produced by a radical change in the effective scope of the law. The law is changing; that change is altering the way our culture gets made; that change should worry you - whether or not you care about the Internet, and whether you're on Safire's left or on his right. + +!_ The inspiration +for the title and for much of the argument of this book comes from the work of Richard Stallman and the Free Software Foundation. Indeed, as I reread Stallman's own work, especially the essays in /{Free Software, Free Society}/, I realize that all of the theoretical insights I develop here are insights Stallman described decades ago. One could thus well argue that this work is "merely" derivative. + +I accept that criticism, if indeed it is a criticism. The work of a lawyer is always derivative, and I mean to do nothing more in this book than to remind a culture about a tradition that has always been its own. Like Stallman, I defend that tradition on the basis of values. Like Stallman, I believe those are the values of freedom. And like Stallman, I believe those are values of our past that will need to be defended in our future. A free culture has been our past, but it will only be our future if we change the path we are on right now. + +Like Stallman's arguments for free software, an argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which artists don't get paid. A culture without property, or in which creators can't get paid, is anarchy, not freedom. Anarchy is not what I advance here. + +Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written. + +:B~ INTRODUCTION + +1~intro [Intro]-# + +!_ On December 17, 1903, +on a windy North Carolina beach for just shy of one hundred seconds, the Wright brothers demonstrated that a heavier-than-air, self- propelled vehicle could fly. The moment was electric and its importance widely understood. Almost immediately, there was an explosion of interest in this newfound technology of manned flight, and a gaggle of innovators began to build upon it. +={Wright brothers+1} + +At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space above, to "an indefinite extent, upwards."~{ St. George Tucker, /{Blackstone's Commentaries}/ 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18. }~ For many years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass? +={air traffic, land ownership vs.+8;land ownership, air traffic and+8;property rights: air traffic vs.+8} + +Then came airplanes, and for the first time, this principle of American law - deep within the foundations of our tradition, and acknowledged by the most important legal thinkers of our past - mattered. If my land reaches to the heavens, what happens when United flies over my field? Do I have the right to banish it from my property? Am I allowed to enter into an exclusive license with Delta Airlines? Could we set up an auction to decide how much these rights are worth? + +In 1945, these questions became a federal case. When North Carolina farmers Thomas Lee and Tinie Causby started losing chickens because of low-flying military aircraft (the terrified chickens apparently flew into the barn walls and died), the Causbys filed a lawsuit saying that the government was trespassing on their land. The airplanes, of course, never touched the surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had said, their land reached to "an indefinite extent, upwards," then the government was trespassing on their property, and the Causbys wanted it to stop. +={Causby, Thomas Lee;Causby, Tinie} + +The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the heavens, then Congress's declaration could well have been an unconstitutional "taking" of property without compensation. The Court acknowledged that "it is ancient doctrine that common law ownership of the land extended to the periphery of the universe." But Justice Douglas had no patience for ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the Court, +={Douglas, William O.+2;Supreme Court, U.S.: on airspace vs. land rights+4} + +_1 [The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim."~{ United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that there could be a "taking" if the government's use of its land effectively destroyed the value of the Causbys' land. This example was suggested to me by Keith Aoki's wonderful piece, "(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship," /{Stanford Law Review}/ 48 (1996): 1293, 1333. See also Paul Goldstein, /{Real Property}/ (Mineola, N.Y.: Foundation Press, 1984), 1112-13. }~ + +"Common sense revolts at the idea." + +This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It was Douglas's style not to dither. Other justices would have blathered on for pages to reach the conclusion that Douglas holds in a single line: "Common sense revolts at the idea." But whether it takes pages or a few words, it is the special genius of a common law system, as ours is, that the law adjusts to the technologies of the time. And as it adjusts, it changes. Ideas that were as solid as rock in one age crumble in another. + +Or at least, this is how things happen when there's no one powerful on the other side of the change. The Causbys were just farmers. And though there were no doubt many like them who were upset by the growing traffic in the air (though one hopes not many chickens flew themselves into walls), the Causbys of the world would find it very hard to unite and stop the idea, and the technology, that the Wright brothers had birthed. The Wright brothers spat airplanes into the technological meme pool; the idea then spread like a virus in a chicken coop; farmers like the Causbys found themselves surrounded by "what seemed reasonable" given the technology that the Wrights had produced. They could stand on their farms, dead chickens in hand, and shake their fists at these newfangled technologies all they wanted. They could call their representatives or even file a lawsuit. But in the end, the force of what seems "obvious" to everyone else - the power of "common sense" - would prevail. Their "private interest" would not be allowed to defeat an obvious public gain. +={Causby, Thomas Lee;Causby, Tinie;Wright brothers} + +!_ Edwin Howard Armstrong +is one of America's forgotten inventor geniuses. He came to the great American inventor scene just after the titans Thomas Edison and Alexander Graham Bell. But his work in the area of radio technology was perhaps the most important of any single inventor in the first fifty years of radio. He was better educated than Michael Faraday, who as a bookbinder's apprentice had discovered electric induction in 1831. But he had the same intuition about how the world of radio worked, and on at least three occasions, Armstrong invented profoundly important technologies that advanced our understanding of radio. +={Armstrong, Edwin Howard+14;Bell, Alexander Graham;Edison, Thomas;Faraday, Michael;radio:FM spectrum of+12} + +On the day after Christmas, 1933, four patents were issued to Armstrong for his most significant invention - FM radio. Until then, consumer radio had been amplitude-modulated (AM) radio. The theorists of the day had said that frequency-modulated (FM) radio could never work. They were right about FM radio in a narrow band of spectrum. But Armstrong discovered that frequency-modulated radio in a wide band of spectrum would deliver an astonishing fidelity of sound, with much less transmitter power and static. + +On November 5, 1935, he demonstrated the technology at a meeting of the Institute of Radio Engineers at the Empire State Building in New York City. He tuned his radio dial across a range of AM stations, until the radio locked on a broadcast that he had arranged from seventeen miles away. The radio fell totally silent, as if dead, and then with a clarity no one else in that room had ever heard from an electrical device, it produced the sound of an announcer's voice: "This is amateur station W2AG at Yonkers, New York, operating on frequency modulation at two and a half meters." + +The audience was hearing something no one had thought possible: + +_1 A glass of water was poured before the microphone in Yonkers; it sounded like a glass of water being poured. ... A paper was crumpled and torn; it sounded like paper and not like a crackling forest fire. ... Sousa marches were played from records and a piano solo and guitar number were performed. ... The music was projected with a live-ness rarely if ever heard before from a radio 'music box.' "~{ Lawrence Lessing, /{Man of High Fidelity: Edwin Howard Armstrong}/ (Philadelphia: J. B. Lipincott Company, 1956), 209. }~ + +As our own common sense tells us, Armstrong had discovered a vastly superior radio technology. But at the time of his invention, Armstrong was working for RCA. RCA was the dominant player in the then dominant AM radio market. By 1935, there were a thousand radio stations across the United States, but the stations in large cities were all owned by a handful of networks. +={RCA+9;media:ownership concentration in+9} + +RCA's president, David Sarnoff, a friend of Armstrong's, was eager that Armstrong discover a way to remove static from AM radio. So Sarnoff was quite excited when Armstrong told him he had a device that removed static from "radio." But when Armstrong demonstrated his invention, Sarnoff was not pleased. +={Sarnoff, David} + +_1 I thought Armstrong would invent some kind of a filter to remove static from our AM radio. I didn't think he'd start a revolution - start up a whole damn new industry to compete with RCA."~{ See "Saints: The Heroes and Geniuses of the Electronic Era," First Electronic Church of America, at www.webstationone.com/fecha, available at link #1. }~ + +Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author described, +={FM radio+5} + +_1 The forces for FM, largely engineering, could not overcome the weight of strategy devised by the sales, patent, and legal offices to subdue this threat to corporate position. For FM, if allowed to develop unrestrained, posed ... a complete reordering of radio power ... and the eventual overthrow of the carefully restricted AM system on which RCA had grown to power."~{ Lessing, 226. }~ + +RCA at first kept the technology in house, insisting that further tests were needed. When, after two years of testing, Armstrong grew impatient, RCA began to use its power with the government to stall FM radio's deployment generally. In 1936, RCA hired the former head of the FCC and assigned him the task of assuring that the FCC assign spectrum in a way that would castrate FM - principally by moving FM radio to a different band of spectrum. At first, these efforts failed. But when Armstrong and the nation were distracted by World War II, RCA's work began to be more successful. Soon after the war ended, the FCC announced a set of policies that would have one clear effect: FM radio would be crippled. As Lawrence Lessing described it, +={FCC: on FM radio+2;Lessig, Lawrence+1} + +_1 The series of body blows that FM radio received right after the war, in a series of rulings manipulated through the FCC by the big radio interests, were almost incredible in their force and deviousness."~{ Lessing, 256. }~ + +To make room in the spectrum for RCA's latest gamble, television, FM radio users were to be moved to a totally new spectrum band. The power of FM radio stations was also cut, meaning FM could no longer be used to beam programs from one part of the country to another. (This change was strongly supported by AT&T, because the loss of FM relaying stations would mean radio stations would have to buy wired links from AT&T.) The spread of FM radio was thus choked, at least temporarily. +={AT&T} + +Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's patents. After incorporating FM technology into the emerging standard for television, RCA declared the patents invalid - baselessly, and almost fifteen years after they were issued. It thus refused to pay him royalties. For six years, Armstrong fought an expensive war of litigation to defend the patents. Finally, just as the patents expired, RCA offered a settlement so low that it would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of a thirteenth- story window to his death. + +This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From the beginning, government and government agencies have been subject to capture. They are more likely captured when a powerful interest is threatened by either a legal or technical change. That powerful interest too often exerts its influence within the government to get the government to protect it. The rhetoric of this protection is of course always public spirited; the reality is something different. Ideas that were as solid as rock in one age, but that, left to themselves, would crumble in another, are sustained through this subtle corruption of our political process. RCA had what the Causbys did not: the power to stifle the effect of technological change. +={Causby, Thomas Lee;Causby, Tinie} + +!_ There's no +single inventor of the Internet. Nor is there any good date upon which to mark its birth. Yet in a very short time, the Internet has become part of ordinary American life. According to the Pew Internet and American Life Project, 58 percent of Americans had access to the Internet in 2002, up from 49 percent two years before.~{ Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at Internet Access and the Digital Divide," Pew Internet and American Life Project, 15 April 2003: 6, available at link #2. }~ That number could well exceed two thirds of the nation by the end of 2004. +={Internet: development of+2} + +As the Internet has been integrated into ordinary life, it has changed things. Some of these changes are technical - the Internet has made communication faster, it has lowered the cost of gathering data, and so on. These technical changes are not the focus of this book. They are important. They are not well understood. But they are the sort of thing that would simply go away if we all just switched the Internet off. They don't affect people who don't use the Internet, or at least they don't affect them directly. They are the proper subject of a book about the Internet. But this is not a book about the Internet. + +Instead, this book is about an effect of the Internet beyond the Internet itself: an effect upon how culture is made. My claim is that the Internet has induced an important and unrecognized change in that process. That change will radically transform a tradition that is as old as the Republic itself. Most, if they recognized this change, would reject it. Yet most don't even see the change that the Internet has introduced. + +We can glimpse a sense of this change by distinguishing between commercial and noncommercial culture, and by mapping the law's regulation of each. By "commercial culture" I mean that part of our culture that is produced and sold or produced to be sold. By "noncommercial culture" I mean all the rest. When old men sat around parks or on street corners telling stories that kids and others consumed, that was noncommercial culture. When Noah Webster published his "Reader," or Joel Barlow his poetry, that was commercial culture. +={Barlow, Joel;culture:commercial vs. noncommercial+6;Webster, Noah} + +At the beginning of our history, and for just about the whole of our tradition, noncommercial culture was essentially unregulated. Of course, if your stories were lewd, or if your song disturbed the peace, then the law might intervene. But the law was never directly concerned with the creation or spread of this form of culture, and it left this culture "free." The ordinary ways in which ordinary individuals shared and transformed their culture - telling stories, reenacting scenes from plays or TV, participating in fan clubs, sharing music, making tapes - were left alone by the law. + +The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial marketplace.~{ This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. State copyright law historically protected not just the commercial interest in publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," /{Harvard Law Review}/ 4 (1890): 193, 198-200. }~ This is also, of course, an important part of creativity and culture, and it has become an increasingly important part in America. But in no sense was it dominant within our tradition. It was instead just one part, a controlled part, balanced with the free. +={Copyright infringement lawsuits:commercial creativity as primary purpose of+2} + +This rough divide between the free and the controlled has now been erased.~{ 9. See Jessica Litman, /{Digital Copyright}/ (New York: Prometheus Books, 2001), ch. 13. }~ The Internet has set the stage for this erasure and, pushed by big media, the law has now affected it. For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before. The technology that preserved the balance of our history - between uses of our culture that were free and uses of our culture that were only upon permission - has been undone. The consequence is that we are less and less a free culture, more and more a permission culture. +={free culture: permission culture vs.;permission culture: free culture vs.} + +This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its motivation. But the protectionism that justifies the changes that I will describe below is not the limited and balanced sort that has defined the law in the past. This is not a protectionism to protect artists. It is instead a protectionism to protect certain forms of business. Corporations threatened by the potential of the Internet to change the way both commercial and noncommercial culture are made and shared have united to induce lawmakers to use the law to protect them. It is the story of RCA and Armstrong; it is the dream of the Causbys. +={Causby, Thomas Lee;Causby, Tinie;protection of artists vs. business interests} + +For the Internet has unleashed an extraordinary possibility for many to participate in the process of building and cultivating a culture that reaches far beyond local boundaries. That power has changed the marketplace for making and cultivating culture generally, and that change in turn threatens established content industries. The Internet is thus to the industries that built and distributed content in the twentieth century what FM radio was to AM radio, or what the truck was to the railroad industry of the nineteenth century: the beginning of the end, or at least a substantial transformation. Digital technologies, tied to the Internet, could produce a vastly more competitive and vibrant market for building and cultivating culture; that market could include a much wider and more diverse range of creators; those creators could produce and distribute a much more vibrant range of creativity; and depending upon a few important factors, those creators could earn more on average from this system than creators do today - all so long as the RCAs of our day don't use the law to protect themselves against this competition. + +Yet, as I argue in the pages that follow, that is precisely what is happening in our culture today. These modern-day equivalents of the early twentieth-century radio or nineteenth-century railroads are using their power to get the law to protect them against this new, more efficient, more vibrant technology for building culture. They are succeeding in their plan to remake the Internet before the Internet remakes them. + +It doesn't seem this way to many. The battles over copyright and the Internet seem remote to most. To the few who follow them, they seem mainly about a much simpler brace of questions - whether "piracy" will be permitted, and whether "property" will be protected. The "war" that has been waged against the technologies of the Internet - what Motion Picture Association of America (MPAA) president Jack Valenti calls his "own terrorist war"~{ Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the Net into an Illicit Video Club," /{New York Times,}/ 17 January 2002. }~ - has been framed as a battle about the rule of law and respect for property. To know which side to take in this war, most think that we need only decide whether we're for property or against it. +={Valenti, Jack: on creative property rights} + +If those really were the choices, then I would be with Jack Valenti and the content industry. I, too, am a believer in property, and especially in the importance of what Mr. Valenti nicely calls "creative property." I believe that "piracy" is wrong, and that the law, properly tuned, should punish "piracy," whether on or off the Internet. + +But those simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet "pirates" will also rid our culture of values that have been integral to our tradition from the start. + +These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. And as Professor Neil Netanel powerfully argues,~{ Neil W. Netanel, "Copyright and a Democratic Civil Society," /{Yale Law Journal}/ 106 (1996): 283. }~ copyright law, properly balanced, protected creators against private control. Our tradition was thus neither Soviet nor the tradition of patrons. It instead carved out a wide berth within which creators could cultivate and extend our culture. +={Constitution, U.S.:First Amendment to;Copyright law:as protection of creators;First Amendment;Netanel, Neil Weinstock} + +Yet the law's response to the Internet, when tied to changes in the technology of the Internet itself, has massively increased the effective regulation of creativity in America. To build upon or critique the culture around us one must ask, Oliver Twist - like, for permission first. Permission is, of course, often granted - but it is not often granted to the critical or the independent. We have built a kind of cultural nobility; those within the noble class live easily; those outside it don't. But it is nobility of any form that is alien to our tradition. + +The story that follows is about this war. Is it not about the "centrality of technology" to ordinary life. I don't believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group, for neither do I believe in a devil, corporate or otherwise. It is not a morality tale. Nor is it a call to jihad against an industry. + +It is instead an effort to understand a hopelessly destructive war inspired by the technologies of the Internet but reaching far beyond its code. And by understanding this battle, it is an effort to map peace. There is no good reason for the current struggle around Internet technologies to continue. There will be great harm to our tradition and culture if it is allowed to continue unchecked. We must come to understand the source of this war. We must resolve it soon. + +!_ Like the Causbys' +battle, this war is, in part, about "property." The property of this war is not as tangible as the Causbys', and no innocent chicken has yet to lose its life. Yet the ideas surrounding this "property" are as obvious to most as the Causbys' claim about the sacredness of their farm was to them. We are the Causbys. Most of us take for granted the extraordinarily powerful claims that the owners of "intellectual property" now assert. Most of us, like the Causbys, treat these claims as obvious. And hence we, like the Causbys, object when a new technology interferes with this property. It is as plain to us as it was to them that the new technologies of the Internet are "trespassing" upon legitimate claims of "property." It is as plain to us as it was to them that the law should intervene to stop this trespass. +={Causby, Thomas Lee+1;Causby, Tinie+1;intellectual property rights+8} + +And thus, when geeks and technologists defend their Armstrong or Wright brothers technology, most of us are simply unsympathetic. Common sense does not revolt. Unlike in the case of the unlucky Causbys, common sense is on the side of the property owners in this war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side. +={Wright brothers} + +My hope is to push this common sense along. I have become increasingly amazed by the power of this idea of intellectual property and, more importantly, its power to disable critical thought by policy makers and citizens. There has never been a time in our history when more of our "culture" was as "owned" as it is now. And yet there has never been a time when the concentration of power to control the /{uses}/ of culture has been as unquestioningly accepted as it is now. +={power, concentration of} + +The puzzle is, Why? + +Is it because we have come to understand a truth about the value and importance of absolute property over ideas and culture? Is it because we have discovered that our tradition of rejecting such an absolute claim was wrong? + +Or is it because the idea of absolute property over ideas and culture benefits the RCAs of our time and fits our own unreflective intuitions? + +Is the radical shift away from our tradition of free culture an instance of America correcting a mistake from its past, as we did after a bloody war with slavery, and as we are slowly doing with inequality? Or is the radical shift away from our tradition of free culture yet another example of a political system captured by a few powerful special interests? + +Does common sense lead to the extremes on this question because common sense actually believes in these extremes? Or does common sense stand silent in the face of these extremes because, as with Armstrong versus RCA, the more powerful side has ensured that it has the more powerful view? + +I don't mean to be mysterious. My own views are resolved. I believe it was right for common sense to revolt against the extremism of the Causbys. I believe it would be right for common sense to revolt against the extreme claims made today on behalf of "intellectual property." What the law demands today is increasingly as silly as a sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound. +={Causby, Thomas Lee;Causby, Tinie} + +!_ The struggle +that rages just now centers on two ideas: "piracy" and "property." My aim in this book's next two parts is to explore these two ideas. + +My method is not the usual method of an academic. I don't want to plunge you into a complex argument, buttressed with references to obscure French theorists' however natural that is for the weird sort we academics have become. Instead I begin in each part with a collection of stories that set a context within which these apparently simple ideas can be more fully understood. + +The two sections set up the core claim of this book: that while the Internet has indeed produced something fantastic and new, our government, pushed by big media to respond to this "something new," is destroying something very old. Rather than understanding the changes the Internet might permit, and rather than taking time to let "common sense" resolve how best to respond, we are allowing those most threatened by the changes to use their power to change the law - and more importantly, to use their power to change something fundamental about who we have always been. + +We allow this, I believe, not because it is right, and not because most of us really believe in these changes. We allow it because the interests most threatened are among the most powerful players in our depressingly compromised process of making law. This book is the story of one more consequence of this form of corruption - a consequence to which most of us remain oblivious. + +:B~ "PIRACY" + +1~intro_piracy [Intro]-# + +!_ Since the inception +of the law regulating creative property, there has been a war against "piracy." The precise contours of this concept, "piracy," are hard to sketch, but the animating injustice is easy to capture. As Lord Mansfield wrote in a case that extended the reach of English copyright law to include sheet music, +={Copyright law:English;Mansfield, William Murray, Lord;music publishing;sheet music} + +_1 A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying copies and disposing of them for his own use."~{ /{Bach v. Longman,}/ 98 Eng. Rep. 1274 (1777) (Mansfield). }~ + +Today we are in the middle of another "war" against "piracy." The Internet has provoked this war. The Internet makes possible the efficient spread of content. Peer-to-peer (p2p) file sharing is among the most efficient of the efficient technologies the Internet enables. Using distributed intelligence, p2p systems facilitate the easy spread of content in a way unimagined a generation ago. +={Internet: efficient content distribution on;peer-to-peer (p2p) file sharing:efficiency of+1} + +_{This}_ efficiency does not respect the traditional lines of copyright. The network doesn't discriminate between the sharing of copyrighted and uncopyrighted content. Thus has there been a vast amount of sharing of copyrighted content. That sharing in turn has excited the war, as copyright owners fear the sharing will "rob the author of the profit." + +The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their "property" against this "piracy." A generation of Americans, the warriors warn, is being raised to believe that "property" should be "free." Forget tattoos, never mind body piercing - our kids are becoming thieves! + +There's no doubt that "piracy" is wrong, and that pirates should be punished. But before we summon the executioners, we should put this notion of "piracy" in some context. For as the concept is increasingly used, at its core is an extraordinary idea that is almost certainly wrong. + +The idea goes something like this: + +_1 Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value. Whenever I take something of value from someone else, I should have their permission. The taking of something of value from someone else without permission is wrong. It is a form of piracy." + +This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the "if value, then right" theory of creative property~{ See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language in the Pepsi Generation," /{Notre Dame Law Review}/ 65 (1990): 397. }~ - if there is value, then someone must have a right to that value. It is the perspective that led a composers' rights organization, ASCAP, to sue the Girl Scouts for failing to pay for the songs that girls sang around Girl Scout campfires.~{ Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay Up," /{Wall Street Journal,}/ 21 August 1996, available at link #3; Jonathan Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free Speech, No One Wins," /{Boston Globe,}/ 24 November 2002. }~ There was "value" (the songs) so there must have been a "right" - even against the Girl Scouts. +={ASCAP;Dreyfus, Rochelle;Girl Scouts;creative property: "if value, then right" theory of+1;if value, then right, theory+1} + +% note bad sort: ={"if value, then right" theory} + +This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system of law protecting creative property. But the "if value, then right" theory of creative property has never been America's theory of creative property. It has never taken hold within our law. + +Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity. The current debate has this turned around. We have become so concerned with protecting the instrument that we are losing sight of the value. +={copyright law:on republishing vs. transformation of original work+1;creativity:legal restrictions on+3} + +The source of this confusion is a distinction that the law no longer takes care to draw - the distinction between republishing someone's work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. + +Before the technologies of the Internet, this conflation didn't matter all that much. The technologies of publishing were expensive; that meant the vast majority of publishing was commercial. Commercial entities could bear the burden of the law - even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. + +But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of commercial creators but effectively that of anyone. Although that expansion would not matter much if copyright law regulated only "copying," when the law regulates as broadly and obscurely as it does, the extension matters a lot. The burden of this law now vastly outweighs any original benefit - certainly as it affects noncommercial creativity, and increasingly as it affects commercial creativity as well. Thus, as we'll see more clearly in the chapters below, the law's role is less and less to support creativity, and more and more to protect certain industries against competition. Just at the time digital technology could unleash an extraordinary range of commercial and noncommercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may be seeing, as Richard Florida writes, the "Rise of the Creative Class."~{ In /{The Rise of the Creative Class}/ (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of labor toward a labor of creativity. His work, however, doesn't directly address the legal conditions under which that creativity is enabled or stifled. I certainly agree with him about the importance and significance of this change, but I also believe the conditions under which it will be enabled are much more tenuous. }~ Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. +={copyright law:creativity impeded by;Florida, Richard;Rise of the Creative Class, The (Florida)} + +These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper context the current battles about behavior labeled "piracy." + +1~ Chapter One: Creators + +!_ In 1928, +a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent flop called /{Plane Crazy}/. In November, in New York City's Colony Theater, in the first widely distributed cartoon synchronized with sound, /{Steamboat Willie}/ brought to life the character that would become Mickey Mouse. +={animated cartoons+15;cartoon films+16;films:animated+15;Steamboat Willie+9;Mikey Mouse+9} + +Synchronized sound had been introduced to film a year earlier in the movie /{The Jazz Singer}/. That success led Walt Disney to copy the technique and mix sound with cartoons. No one knew whether it would work or, if it did work, whether it would win an audience. But when Disney ran a test in the summer of 1928, the results were unambiguous. As Disney describes that first experiment, +={Disney, Walt+5} + +_1 A couple of my boys could read music, and one of them could play a mouth organ. We put them in a room where they could not see the screen and arranged to pipe their sound into the room where our wives and friends were going to see the picture. + +_1 The boys worked from a music and sound-effects score. After several false starts, sound and action got off with the gun. The mouth organist played the tune, the rest of us in the sound department bammed tin pans and blew slide whistles on the beat. The synchronization was pretty close. + +_1 The effect on our little audience was nothing less than electric. They responded almost instinctively to this union of sound and motion. I thought they were kidding me. So they put me in the audience and ran the action again. It was terrible, but it was wonderful! And it was something new!"~{ Leonard Maltin, /{Of Mice and Magic: A History of American Animated Cartoons}/ (New York: Penguin Books, 1987), 34-35. }~ + +Disney's then partner, and one of animation's most extraordinary talents, Ub Iwerks, put it more strongly: "I have never been so thrilled in my life. Nothing since has ever equaled it." +={Iwerks, Ub.} + +Disney had created something very new, based upon something relatively new. Synchronized sound brought life to a form of creativity that had rarely - except in Disney's hands - been anything more than filler for other films. Throughout animation's early history, it was Disney's invention that set the standard that others struggled to match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others. + +This much is familiar. What you might not know is that 1928 also marks another important transition. In that year, a comic (as opposed to cartoon) genius created his last independently produced silent film. That genius was Buster Keaton. The film was /{Steamboat Bill, Jr.}/ +={Keaton, Buster+2;Steamboat Bill, Jr.+2} + +Keaton was born into a vaudeville family in 1895. In the era of silent film, he had mastered using broad physical comedy as a way to spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was a classic of this form, famous among film buffs for its incredible stunts. The film was classic Keaton - wildly popular and among the best of its genre. + +/{Steamboat Bill, Jr.}/ appeared before Disney's cartoon /{Steamboat Willie}/. The coincidence of titles is not coincidental. Steamboat Willie is a direct cartoon parody of Steamboat Bill,~{ I am grateful to David Gerstein and his careful history, described at link #4. According to Dave Smith of the Disney Archives, Disney paid royalties to use the music for five songs in /{Steamboat Willie:}/ "Steamboat Bill," "The Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1" (Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the Straw," was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author. }~ and both are built upon a common song as a source. It is not just from the invention of synchronized sound in /{The Jazz Singer}/ that we get /{Steamboat Willie}/. It is also from Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill," that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse. +={derivative works: piracy vs.+4;piracy:derivative work vs.+4} + +This "borrowing" was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream films of his day.~{ He was also a fan of the public domain. See Chris Sprigman, "The Mouse that Ate the Public Domain," Findlaw, 5 March 2002, at link #5. }~ So did many others. Early cartoons are filled with knockoffs - slight variations on winning themes; retellings of ancient stories. The key to success was the brilliance of the differences. With Disney, it was sound that gave his animation its spark. Later, it was the quality of his work relative to the production-line cartoons with which he competed. Yet these additions were built upon a base that was borrowed. Disney added to the work of others before him, creating something new out of something just barely old. +={creativity:by transforming previous works+3;Disney, Inc.+6} + +Sometimes this borrowing was slight. Sometimes it was significant. Think about the fairy tales of the Brothers Grimm. If you're as oblivious as I was, you're likely to think that these tales are happy, sweet stories, appropriate for any child at bedtime. In fact, the Grimm fairy tales are, well, for us, grim. It is a rare and perhaps overly ambitious parent who would dare to read these bloody, moralistic stories to his or her child, at bedtime or anytime. +={Grimm fairy tales+1} + +Disney took these stories and retold them in a way that carried them into a new age. He animated the stories, with both characters and light. Without removing the elements of fear and danger altogether, he made funny what was dark and injected a genuine emotion of compassion where before there was fear. And not just with the work of the Brothers Grimm. Indeed, the catalog of Disney work drawing upon the work of others is astonishing when set together: /{Snow White}/ (1937), /{Fantasia}/ (1940), /{Pinocchio}/ (1940), /{Dumbo}/ (1941), /{Bambi}/ (1942), /{Song of the South}/ (1946), /{Cinderella}/ (1950), /{Alice in Wonderland}/ (1951), /{Robin Hood}/ (1952), /{Peter Pan}/ (1953), /{Lady and the Tramp}/ (1955), /{Mulan}/ (1998), /{Sleeping Beauty}/ (1959), /{101 Dalmatians}/ (1961), /{The Sword in the Stone}/ (1963), and /{The Jungle Book}/ (1967) - not to mention a recent example that we should perhaps quickly forget, /{Treasure Planet}/ (2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn. + +This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would say that there is no creativity except this kind. We don't need to go that far to recognize its importance. We could call this "Disney creativity," though that would be a bit misleading. It is, more precisely, "Walt Disney creativity" - a form of expression and genius that builds upon the culture around us and makes it something different. + +In 1928, the culture that Disney was free to draw upon was relatively fresh. The public domain in 1928 was not very old and was therefore quite vibrant. The average term of copyright was just around thirty years - for that minority of creative work that was in fact copy-righted.~{ Until 1976, copyright law granted an author the possibility of two terms: an initial term and a renewal term. I have calculated the "average" term by determining the weighted average of total registrations for any particular year, and the proportion renewing. Thus, if 100 copyrights are registered in year 1, and only 15 are renewed, and the renewal term is 28 years, then the average term is 32.2 years. For the renewal data and other relevant data, see the Web site associated with this book, available at link #6. }~ That means that for thirty years, on average, the authors or copyright holders of a creative work had an "exclusive right" to control certain uses of the work. To use this copyrighted work in limited ways required the permission of the copyright owner. +={copyright:duration of+2;public domain:defined+2|traditional term for conversion to+2} + +At the end of a copyright term, a work passes into the public domain. No permission is then needed to draw upon or use that work. No permission and, hence, no lawyers. The public domain is a "lawyer-free zone." Thus, most of the content from the nineteenth century was free for Disney to use and build upon in 1928. It was free for anyone - whether connected or not, whether rich or not, whether approved or not - to use and build upon. + +This is the ways things always were - until quite recently. For most of our history, the public domain was just over the horizon. From 1790 until 1978, the average copyright term was never more than thirty-two years, meaning that most culture just a generation and a half old was free for anyone to build upon without the permission of anyone else. Today's equivalent would be for creative work from the 1960s and 1970s to now be free for the next Walt Disney to build upon without permission. Yet today, the public domain is presumptive only for content from before the Great Depression. + +!_ Of course, +Walt Disney had no monopoly on "Walt Disney creativity." Nor does America. The norm of free culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal. +={Disney, Walt} + +Consider, for example, a form of creativity that seems strange to many Americans but that is inescapable within Japanese culture: /{manga}/, or comics. The Japanese are fanatics about comics. Some 40 percent of publications are comics, and 30 percent of publication revenue derives from comics. They are everywhere in Japanese society, at every magazine stand, carried by a large proportion of commuters on Japan's extraordinary system of public transportation. +={comics, Japanese+8;derivative works: piracy vs.+18;Japanese comics+8;manga+8;piracy:derivative work vs.+18} + +Americans tend to look down upon this form of culture. That's an unattractive characteristic of ours. We're likely to misunderstand much about manga, because few of us have ever read anything close to the stories that these "graphic novels" tell. For the Japanese, manga cover every aspect of social life. For us, comics are "men in tights." And anyway, it's not as if the New York subways are filled with readers of Joyce or even Hemingway. People of different cultures distract themselves in different ways, the Japanese in this interestingly different way. + +But my purpose here is not to understand manga. It is to describe a variant on manga that from a lawyer's perspective is quite odd, but from a Disney perspective is quite familiar. + +This is the phenomenon of /{doujinshi}/. Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of doujinshi. It is not doujinshi if it is /{just}/ a copy; the artist must make a contribution to the art he copies, by transforming it either subtly or significantly. A doujinshi comic can thus take a mainstream comic and develop it differently - with a different story line. Or the comic can keep the character in character but change its look slightly. There is no formula for what makes the doujinshi sufficiently "different." But they must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy. +={creativity:by transforming previous works+14;doujinshi comics+8} + +These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 "circles" of creators from across Japan produce these bits of Walt Disney creativity. More than 450,000 Japanese come together twice a year, in the largest public gathering in the country, to exchange and sell them. This market exists in parallel to the mainstream commercial manga market. In some ways, it obviously competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law. +={Disney, Walt+1} + +The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under Japanese copyright law, which in this respect (on paper) mirrors American copyright law, the doujinshi market is an illegal one. Doujinshi are plainly "derivative works." There is no general practice by doujinshi artists of securing the permission of the manga creators. Instead, the practice is simply to take and modify the creations of others, as Walt Disney did with /{Steamboat Bill, Jr}/. Under both Japanese and American law, that "taking" without the permission of the original copyright owner is illegal. It is an infringement of the original copyright to make a copy or a derivative work without the original copyright owner's permission. +={copyright law: Japanese+1;Steamboat Bill, Jr.} + +Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga flourish. As American graphic novelist Judd Winick said to me, "The early days of comics in America are very much like what's going on in Japan now. ... American comics were born out of copying each other. ... That's how [the artists] learn to draw - by going into comic books and not tracing them, but looking at them and copying them" and building from them.~{ For an excellent history, see Scott McCloud, /{Reinventing Comics}/ (New York: Perennial, 2000). }~ +={Winick, Judd+1} + +American comics now are quite different, Winick explains, in part because of the legal difficulty of adapting comics the way doujinshi are allowed. Speaking of Superman, Winick told me, "there are these rules and you have to stick to them." There are things Superman "cannot" do. "As a creator, it's frustrating having to stick to some parameters which are fifty years old." +={Superman comics} + +The norm in Japan mitigates this legal difficulty. Some say it is precisely the benefit accruing to the Japanese manga market that explains the mitigation. Temple University law professor Salil Mehra, for example, hypothesizes that the manga market accepts these technical violations because they spur the manga market to be more wealthy and productive. Everyone would be worse off if doujinshi were banned, so the law does not ban doujinshi.~{ See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain Why All the Comics My Kid Watches Are Japanese Imports?" /{Rutgers Law Review}/ 55 (2002): 155, 182. "[T]here might be a collective economic rationality that would lead manga and anime artists to forgo bringing legal actions for infringement. One hypothesis is that all manga artists may be better off collectively if they set aside their individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved." }~ +={copyright law: Japanese+1;comics, Japanese;Mehra, Salil+1} + +The problem with this story, however, as Mehra plainly acknowledges, is that the mechanism producing this laissez faire response is not clear. It may well be that the market as a whole is better off if doujinshi are permitted rather than banned, but that doesn't explain why individual copyright owners don't sue nonetheless. If the law has no general exception for doujinshi, and indeed in some cases individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this "free taking" by the doujinshi culture? + +I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by a friend from a major Japanese law firm. "We don't have enough lawyers," he told me one afternoon. There "just aren't enough resources to prosecute cases like this." + +This is a theme to which we will return: that regulation by law is a function of both the words on the books and the costs of making those words have effect. For now, focus on the obvious question that is begged: Would Japan be better off with more lawyers? Would manga be richer if doujinshi artists were regularly prosecuted? Would the Japanese gain something important if they could end this practice of uncompensated sharing? Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help their clients or hurt them? + +!_ Let's pause +for a moment. + +If you're like I was a decade ago, or like most people are when they first start thinking about these issues, then just about now you should be puzzled about something you hadn't thought through before. + +We live in a world that celebrates "property." I am one of those celebrants. I believe in the value of property in general, and I also believe in the value of that weird form of property that lawyers call "intellectual property."~{ The term /{intellectual property}/ is of relatively recent origin. See Siva Vaidhyanathan, /{Copyrights and Copywrongs,}/ 11 (New York: New York University Press, 2001). See also Lawrence Lessig, /{The Future of Ideas}/ (New York: Random House, 2001), 293 n. 26. The term accurately describes a set of "property" rights - copyright, patents, trademark, and trade-secret - but the nature of those rights is very different. }~ A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without intellectual property. + +But it takes just a second's reflection to realize that there is plenty of value out there that "property" doesn't capture. I don't mean "money can't buy you love," but rather, value that is plainly part of a process of production, including commercial as well as noncommercial production. If Disney animators had stolen a set of pencils to draw Steamboat Willie, we'd have no hesitation in condemning that taking as wrong - even though trivial, even if unnoticed. Yet there was nothing wrong, at least under the law of the day, with Disney's taking from Buster Keaton or from the Brothers Grimm. There was nothing wrong with the taking from Keaton because Disney's use would have been considered "fair." There was nothing wrong with the taking from the Grimms because the Grimms' work was in the public domain. +={Disney, Walt+5;Grimm fairy tales+1;Keaton, Buster} + +Thus, even though the things that Disney took - or more generally, the things taken by anyone exercising Walt Disney creativity - are valuable, our tradition does not treat those takings as wrong. Some things remain free for the taking within a free culture, and that freedom is good. +={free culture: derivative works based on+6} + +The same with the doujinshi culture. If a doujinshi artist broke into a publisher's office and ran off with a thousand copies of his latest work - or even one copy - without paying, we'd have no hesitation in saying the artist was wrong. In addition to having trespassed, he would have stolen something of value. The law bans that stealing in whatever form, whether large or small. +={copyright law: Japanese+1;comics, Japanese;doujinshi comics+1;Japanese comics+1;manga+1} + +Yet there is an obvious reluctance, even among Japanese lawyers, to say that the copycat comic artists are "stealing." This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard to say why. + +It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the work of other scientists without asking or paying for the privilege. ("Excuse me, Professor Einstein, but may I have permission to use your theory of relativity to show that you were wrong about quantum physics?") Acting companies perform adaptations of the works of Shakespeare without securing permission from anyone. (Does /{anyone}/ believe Shakespeare would be better spread within our culture if there were a central Shakespeare rights clearinghouse that all productions of Shakespeare must appeal to first?) And Hollywood goes through cycles with a certain kind of movie: five asteroid films in the late 1990s; two volcano disaster films in 1997. +={Shakespeare, William} + +Creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now. That building is always and everywhere at least partially done without permission and without compensating the original creator. No society, free or controlled, has ever demanded that every use be paid for or that permission for Walt Disney creativity must always be sought. Instead, every society has left a certain bit of its culture free for the taking - free societies more fully than unfree, perhaps, but all societies to some degree. + +The hard question is therefore not /{whether}/ a culture is free. All cultures are free to some degree. The hard question instead is "/{How}/ free is this culture?" How much, and how broadly, is the culture free for others to take and build upon? Is that freedom limited to party members? To members of the royal family? To the top ten corporations on the New York Stock Exchange? Or is that freedom spread broadly? To artists generally, whether affiliated with the Met or not? To musicians generally, whether white or not? To filmmakers generally, whether affiliated with a studio or not? + +Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so. + +1~ Chapter Two: "Mere Copyists" + +!_ In 1839, +Louis Daguerre invented the first practical technology for producing what we would call "photographs." Appropriately enough, they were called "daguerreotypes." The process was complicated and expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.) +={Daguerre, Louis;photography+13} + +Yet despite high prices, the demand for daguerreotypes was strong. This pushed inventors to find simpler and cheaper ways to make "automatic pictures." William Talbot soon discovered a process for making "negatives." But because the negatives were glass, and had to be kept wet, the process still remained expensive and cumbersome. In the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs. +={Talbot, William} + +The technological change that made mass photography possible didn't happen until 1888, and was the creation of a single man. George Eastman, himself an amateur photographer, was frustrated by the technology of photographs made with plates. In a flash of insight (so to speak), Eastman saw that if the film could be made to be flexible, it could be held on a single spindle. That roll could then be sent to a developer, driving the costs of photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the population of photographers. +={Eastman, George+12;camera technology+6} + +Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was marketed on the basis of its simplicity. "You press the button and we do the rest."~{ Reese V. Jenkins, /{Images and Enterprise}/ (Baltimore: Johns Hopkins University Press, 1975), 112. }~ As he described in /{The Kodak Primer}/: +={Kodak cameras+4;Kodak Primer, The (Eastman)+1} + +_1 The principle of the Kodak system is the separation of the work that any person whomsoever can do in making a photograph, from the work that only an expert can do. ... We furnish anybody, man, woman or child, who has sufficient intelligence to point a box straight and press a button, with an instrument which altogether removes from the practice of photography the necessity for exceptional facilities or, in fact, any special knowledge of the art. It can be employed without preliminary study, without a darkroom and without chemicals."~{ Brian Coe, /{The Birth of Photography}/ (New York: Taplinger Publishing, 1977), 53. }~ +={Coe, Brian} + +For $25, anyone could make pictures. The camera came preloaded with film, and when it had been used, the camera was returned to an Eastman factory, where the film was developed. Over time, of course, the cost of the camera and the ease with which it could be used both improved. Roll film thus became the basis for the explosive growth of popular photography. Eastman's camera first went on sale in 1888; one year later, Kodak was printing more than six thousand negatives a day. From 1888 through 1909, while industrial production was rising by 4.7 percent, photographic equipment and material sales increased by 11 percent.~{ Jenkins, 177. }~ Eastman Kodak's sales during the same period experienced an average annual increase of over 17 percent.~{ Based on a chart in Jenkins, p. 178. }~ + +The real significance of Eastman's invention, however, was not economic. It was social. Professional photography gave individuals a glimpse of places they would never otherwise see. Amateur photography gave them the ability to record their own lives in a way they had never been able to do before. As author Brian Coe notes, "For the first time the snapshot album provided the man on the street with a permanent record of his family and its activities. ... For the first time in history there exists an authentic visual record of the appearance and activities of the common man made without [literary] interpretation or bias."~{ Coe, 58. }~ +={Coe, Brian} + +In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a technology of expression, of course. But it took years of training before they could be deployed by amateurs in any useful or effective way. With the Kodak, expression was possible much sooner and more simply. The barrier to expression was lowered. Snobs would sneer at its "quality"; professionals would discount it as irrelevant. But watch a child study how best to frame a picture and you get a sense of the experience of creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before. +={democracy:in technologies of expression;expression, technologies of:democratic} + +What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also important was the legal environment within which Eastman's invention grew. For early in the history of photography, there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no.~{ For illustrative cases, see, for example, /{Pavesich v. N.E. Life Ins. Co.,}/ 50 S.E. 68 (Ga. 1905); /{Foster-Milburn Co. v. Chinn,}/ 123090 S.W. 364, 366 (Ky. 1909); /{Corliss v. Walker,}/ 64 F. 280 (Mass. Dist. Ct. 1894). }~ +={permissions:photography exempted from+5} + +The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was "taking" something from the person or building whose photograph he shot - pirating something of value. Some even thought he was taking the target's soul. Just as Disney was not free to take the pencils that his animators used to draw Mickey, so, too, should these photographers not be free to take images that they thought valuable. +={Disney, Walt+1;images, ownership of+4} + +On the other side was an argument that should be familiar, as well. Sure, there may be something of value being used. But citizens should have the right to capture at least those images that stand in public view. (Louis Brandeis, who would become a Supreme Court Justice, thought the rule should be different for images from private spaces.~{ Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," /{Harvard Law Review}/ 4 (1890): 193. }~) It may be that this means that the photographer gets something for nothing. Just as Disney could take inspiration from /{Steamboat Bill, Jr.}/ or the Brothers Grimm, the photographer should be free to capture an image without compensating the source. +={Brandeis, Louis;Steamboat Bill, Jr.;carmera technology+2} + +Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no permission would be required before an image could be captured and shared with others. Instead, permission was presumed. Freedom was the default. (The law would eventually craft an exception for famous people: commercial photographers who snap pictures of famous people for commercial purposes have more restrictions than the rest of us. But in the ordinary case, the image can be captured without clearing the rights to do the capturing.~{ See Melville B. Nimmer, "The Right of Publicity," /{Law and Contemporary Problems}/ 19 (1954): 203; William L. Prosser, "Privacy," /{California Law Review}/ 48 (1960) 398-407; /{White v. Samsung Electronics America, Inc.,}/ 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). }~) + +We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the photographer, then the photographer would have had to demonstrate permission. Perhaps Eastman Kodak would have had to demonstrate permission, too, before it developed the film upon which images were captured. After all, if permission were not granted, then Eastman Kodak would be benefiting from the "theft" committed by the photographer. Just as Napster benefited from the copyright infringements committed by Napster users, Kodak would be benefiting from the "image-right" infringement of its photographers. We could imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission. +={Kodak cameras;Napster} + +But though we could imagine this system of permission, it would be very hard to see how photography could have flourished as it did if the requirement for permission had been built into the rules that govern it. Photography would have existed. It would have grown in importance over time. Professionals would have continued to use the technology as they did - since professionals could have more easily borne the burdens of the permission system. But the spread of photography to ordinary people would not have occurred. Nothing like that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been realized. +={camera technology+6;democracy:in technologies of expression;expression, technologies of:democratic} + +!_ If you drive +through San Francisco's Presidio, you might see two gaudy yellow school buses painted over with colorful and striking images, and the logo "Just Think!" in place of the name of a school. But there's little that's "just" cerebral in the projects that these busses enable. These buses are filled with technologies that teach kids to tinker with film. Not the film of Eastman. Not even the film of your VCR. Rather the "film" of digital cameras. Just Think! is a project that enables kids to make films, as a way to understand and critique the filmed culture that they find all around them. Each year, these busses travel to more than thirty schools and enable three hundred to five hundred children to learn something about media by doing something with media. By doing, they think. By tinkering, they learn. +={digital cameras;Just Think!+2} + +These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital video system has fallen dramatically. As one analyst puts it, "Five years ago, a good real-time digital video editing system cost $25,000. Today you can get professional quality for $595."~{ H. Edward Goldberg, "Essential Presentation Tools: Hardware and Software You Need to Create Digital Multimedia Presentations," cadalyst, 1 February 2002, available at link #7. }~ These buses are filled with technology that would have cost hundreds of thousands just ten years ago. And it is now feasible to imagine not just buses like this, but classrooms across the country where kids are learning more and more of something teachers call "media literacy." +={education:in media literacy+19;media literacy+19;expression, technologies of:media literacy and+19} + +"Media literacy," as Dave Yanofsky, the executive director of Just Think!, puts it, "is the ability ... to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it." +={Yanofsky, Dave} + +This may seem like an odd way to think about "literacy." For most people, literacy is about reading and writing. Faulkner and Hemingway and noticing split infinitives are the things that "literate" people know about. + +Maybe. But in a world where children see on average 390 hours of television commercials per year, or between 20,000 and 45,000 commercials generally,~{ Judith Van Evra, /{Television and Child Development}/ (Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); "Findings on Family and TV Study," /{Denver Post,}/ 25 May 1997, B6. }~ it is increasingly important to understand the "grammar" of media. For just as there is a grammar for the written word, so, too, is there one for media. And just as kids learn how to write by writing lots of terrible prose, kids learn how to write media by constructing lots of (at least at first) terrible media. +={advertising;commercials;television:advertising on} + +A growing field of academics and activists sees this form of literacy as crucial to the next generation of culture. For though anyone who has written understands how difficult writing is - how difficult it is to sequence the story, to keep a reader's attention, to craft language to be understandable - few of us have any real sense of how difficult media is. Or more fundamentally, few of us have a sense of how media works, how it holds an audience or leads it through a story, how it triggers emotion or builds suspense. + +It took filmmaking a generation before it could do these things well. But even then, the knowledge was in the filming, not in writing about the film. The skill came from experiencing the making of a film, not from reading a book about it. One learns to write by writing and then reflecting upon what one has written. One learns to write with images by making them and then reflecting upon what one has created. + +This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern California's Annenberg Center for Communication and dean of the USC School of Cinema- Television, explained to me, the grammar was about "the placement of objects, color, ... rhythm, pacing, and texture."~{ Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. }~ But as computers open up an interactive space where a story is "played" as well as experienced, that grammar changes. The simple control of narrative is lost, and so other techniques are necessary. Author Michael Crichton had mastered the narrative of science fiction. But when he tried to design a computer game based on one of his works, it was a new craft he had to learn. How to lead people through a game without their feeling they have been led was not obvious, even to a wildly successful author.~{ See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4 November 2000, available at link #8; "Timeline," 22 November 2000, available at link #9. }~ +={Daley, Elizabeth+6;Crichton, Michael;computer games} + +This skill is precisely the craft a filmmaker learns. As Daley describes, "people are very surprised about how they are led through a film. [I]t is perfectly constructed to keep you from seeing it, so you have no idea. If a filmmaker succeeds you do not know how you were led." If you know you were led through a film, the film has failed. + +Yet the push for an expanded literacy - one that goes beyond text to include audio and visual elements - is not about making better film directors. The aim is not to improve the profession of filmmaking at all. Instead, as Daley explained, + +_1 From my perspective, probably the most important digital divide is not access to a box. It's the ability to be empowered with the language that that box works in. Otherwise only a very few people can write with this language, and all the rest of us are reduced to being read-only." + +"Read-only." Passive recipients of culture produced elsewhere. Couch potatoes. Consumers. This is the world of media from the twentieth century. + +The twenty-first century could be different. This is the crucial point: It could be both read and write. Or at least reading and better understanding the craft of writing. Or best, reading and understanding the tools that enable the writing to lead or mislead. The aim of any literacy, and this literacy in particular, is to "empower people to choose the appropriate language for what they need to create or express."~{ Interview with Daley and Barish. }~ It is to enable students "to communicate in the language of the twenty-first century."~{ Ibid. }~ + +As with any language, this language comes more easily to some than to others. It doesn't necessarily come more easily to those who excel in written language. Daley and Stephanie Barish, director of the Institute for Multimedia Literacy at the Annenberg Center, describe one particularly poignant example of a project they ran in a high school. The high school was a very poor inner-city Los Angeles school. In all the traditional measures of success, this school was a failure. But Daley and Barish ran a program that gave kids an opportunity to use film to express meaning about something the students know something about - gun violence. +={Barish, Stephanie+2} + +The class was held on Friday afternoons, and it created a relatively new problem for the school. While the challenge in most classes was getting the kids to come, the challenge in this class was keeping them away. The "kids were showing up at 6 A.M. and leaving at 5 at night," said Barish. They were working harder than in any other class to do what education should be about - learning how to express themselves. + +Using whatever "free web stuff they could find," and relatively simple tools to enable the kids to mix "image, sound, and text," Barish said this class produced a series of projects that showed something about gun violence that few would otherwise understand. This was an issue close to the lives of these students. The project "gave them a tool and empowered them to be able to both understand it and talk about it," Barish explained. That tool succeeded in creating expression - far more successfully and powerfully than could have been created using only text. "If you had said to these students, 'you have to do it in text,' they would've just thrown their hands up and gone and done something else," Barish described, in part, no doubt, because expressing themselves in text is not something these students can do well. Yet neither is text a form in which /{these}/ ideas can be expressed well. The power of this message depended upon its connection to this form of expression. + +"But isn't education about teaching kids to write?" I asked. In part, of course, it is. But why are we teaching kids to write? Education, Daley explained, is about giving students a way of "constructing meaning." To say that that means just writing is like saying teaching writing is only about teaching kids how to spell. Text is one part - and increasingly, not the most powerful part - of constructing meaning. As Daley explained in the most moving part of our interview, +={Daley, Elizabeth+3} + +_1 What you want is to give these students ways of constructing meaning. If all you give them is text, they're not going to do it. Because they can't. You know, you've got Johnny who can look at a video, he can play a video game, he can do graffiti all over your walls, he can take your car apart, and he can do all sorts of other things. He just can't read your text. So Johnny comes to school and you say, "Johnny, you're illiterate. Nothing you can do matters." Well, Johnny then has two choices: He can dismiss you or he [can] dismiss himself. If his ego is healthy at all, he's going to dismiss you. [But i]nstead, if you say, "Well, with all these things that you can do, let's talk about this issue. Play for me music that you think reflects that, or show me images that you think reflect that, or draw for me something that reflects that." Not by giving a kid a video camera and ... saying, "Let's go have fun with the video camera and make a little movie." But instead, really help you take these elements that you understand, that are your language, and construct meaning about the topic. ... + +_1 That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they bump up against the fact, "I need to explain this and I really need to write something." And as one of the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right. +={Barish, Stephanie} + +_1 Because they needed to. There was a reason for doing it. They needed to say something, as opposed to just jumping through your hoops. They actually needed to use a language that they didn't speak very well. But they had come to understand that they had a lot of power with this language." + +!_ When two planes +crashed into the World Trade Center, another into the Pentagon, and a fourth into a Pennsylvania field, all media around the world shifted to this news. Every moment of just about every day for that week, and for weeks after, television in particular, and media generally, retold the story of the events we had just witnessed. The telling was a retelling, because we had seen the events that were described. The genius of this awful act of terrorism was that the delayed second attack was perfectly timed to assure that the whole world would be watching. +={September 11, 2001, terrorist attacks of+2;World Trade Center;news coverage+21} + +These retellings had an increasingly familiar feel. There was music scored for the intermissions, and fancy graphics that flashed across the screen. There was a formula to interviews. There was "balance," and seriousness. This was news choreographed in the way we have increasingly come to expect it, "news as entertainment," even if the entertainment is tragedy. + +But in addition to this produced news about the "tragedy of September 11," those of us tied to the Internet came to see a very different production as well. The Internet was filled with accounts of the same events. Yet these Internet accounts had a very different flavor. Some people constructed photo pages that captured images from around the world and presented them as slide shows with text. Some offered open letters. There were sound recordings. There was anger and frustration. There were attempts to provide context. There was, in short, an extraordinary worldwide barn raising, in the sense Mike Godwin uses the term in his book /{Cyber Rights}/, around a news event that had captured the attention of the world. There was ABC and CBS, but there was also the Internet. +={Cyber Rights (Godwin);Godwin, Mike;Internet:news events on+3} + +I don't mean simply to praise the Internet - though I do think the people who supported this form of speech should be praised. I mean instead to point to a significance in this form of speech. For like a Kodak, the Internet enables people to capture images. And like in a movie by a student on the "Just Think!" bus, the visual images could be mixed with sound or text. +={Just Think!} + +But unlike any technology for simply capturing images, the Internet allows these creations to be shared with an extraordinary number of people, practically instantaneously. This is something new in our tradition - not just that culture can be captured mechanically, and obviously not just that events are commented upon critically, but that this mix of captured images, sound, and commentary can be widely spread practically instantaneously. + +September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that has grown dramatically was just beginning to come into public consciousness: the Web-log, or blog. The blog is a kind of public diary, and within some cultures, such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way - it's a kind of electronic /{Jerry Springer}/, available anywhere in the world. +={September 11, 2001, terrorist attacks of;blogs (Web-logs)+2;Internet:blogs on+2;Web-logs (blogs)+2} + +But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about their private life. But there are many who use the space to engage in public discourse. Discussing matters of public import, criticizing others who are mistaken in their views, criticizing politicians about the decisions they make, offering solutions to problems we all see: blogs create the sense of a virtual public meeting, but one in which we don't all hope to be there at the same time and in which conversations are not necessarily linked. The best of the blog entries are relatively short; they point directly to words used by others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public discourse that we have. +={political discourse;Internet:public discourse conducted on+15} + +That's a strong statement. Yet it says as much about our democracy as it does about blogs. This is the part of America that is most difficult for those of us who love America to accept: Our democracy has atrophied. Of course we have elections, and most of the time the courts allow those elections to count. A relatively small number of people vote in those elections. The cycle of these elections has become totally professionalized and routinized. Most of us think this is democracy. +={democracy:in technologies of expression+5;elections+1;expression, technologies of:democratic+5} + +But democracy has never just been about elections. Democracy means rule by the people, but rule means something more than mere elections. In our tradition, it also means control through reasoned discourse. This was the idea that captured the imagination of Alexis de Tocqueville, the nineteenth-century French lawyer who wrote the most important account of early "Democracy in America." It wasn't popular elections that fascinated him - it was the jury, an institution that gave ordinary people the right to choose life or death for other citizens. And most fascinating for him was that the jury didn't just vote about the outcome they would impose. They deliberated. Members argued about the "right" result; they tried to persuade each other of the "right" result, and in criminal cases at least, they had to agree upon a unanimous result for the process to come to an end.~{ See, for example, Alexis de Tocqueville, /{Democracy in America,}/ bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16. }~ +={Tocqueville, Alexis de;democracy:public discourse in+4;jury system} + +Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable citizen deliberation. Some are pushing to create just such an institution.~{ Bruce Ackerman and James Fishkin, "Deliberation Day," /{Journal of Political Philosophy}/ 10 (2) (2002): 129. }~ And in some towns in New England, something close to deliberation remains. But for most of us for most of the time, there is no time or place for "democratic deliberation" to occur. + +More bizarrely, there is generally not even permission for it to occur. We, the most powerful democracy in the world, have developed a strong norm against talking about politics. It's fine to talk about politics with people you agree with. But it is rude to argue about politics with people you disagree with. Political discourse becomes isolated, and isolated discourse becomes more extreme.~{ Cass Sunstein, /{Republic.com}/ (Princeton: Princeton University Press, 2001), 65-80, 175, 182, 183, 192. }~ We say what our friends want to hear, and hear very little beyond what our friends say. +={political discourse+11} + +Enter the blog. The blog's very architecture solves one part of this problem. People post when they want to post, and people read when they want to read. The most difficult time is synchronous time. Technologies that enable asynchronous communication, such as e-mail, increase the opportunity for communication. Blogs allow for public discourse without the public ever needing to gather in a single public place. +={blogs (Web-logs)+10;e-mail;Internet:blogs on+10;Web-logs (blogs)+10} + +But beyond architecture, blogs also have solved the problem of norms. There's no norm (yet) in blog space not to talk about politics. Indeed, the space is filled with political speech, on both the right and the left. Some of the most popular sites are conservative or libertarian, but there are many of all political stripes. And even blogs that are not political cover political issues when the occasion merits. + +The significance of these blogs is tiny now, though not so tiny. The name Howard Dean may well have faded from the 2004 presidential race but for blogs. Yet even if the number of readers is small, the reading is having an effect. +={Dean, Howard} + +One direct effect is on stories that had a different life cycle in the mainstream media. The Trent Lott affair is an example. When Lott "misspoke" at a party for Senator Strom Thurmond, essentially praising Thurmond's segregationist policies, he calculated correctly that this story would disappear from the mainstream press within forty-eight hours. It did. But he didn't calculate its life cycle in blog space. The bloggers kept researching the story. Over time, more and more instances of the same "misspeaking" emerged. Finally, the story broke back into the mainstream press. In the end, Lott was forced to resign as senate majority leader.~{ Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," /{New York Times,}/ 16 January 2003, G5. }~ +={Lott, Trent;Thurmond, Storm;media:blog pressure on+1;Internet:news events on+4} + +This different cycle is possible because the same commercial pressures don't exist with blogs as with other ventures. Television and newspapers are commercial entities. They must work to keep attention. If they lose readers, they lose revenue. Like sharks, they must move on. +={media:commercial imperatives of+1} + +But bloggers don't have a similar constraint. They can obsess, they can focus, they can get serious. If a particular blogger writes a particularly interesting story, more and more people link to that story. And as the number of links to a particular story increases, it rises in the ranks of stories. People read what is popular; what is popular has been selected by a very democratic process of peer-generated rankings. +={Internet:peer-generated rankings on} + +There's a second way, as well, in which blogs have a different cycle from the mainstream press. As Dave Winer, one of the fathers of this movement and a software author for many decades, told me, another difference is the absence of a financial "conflict of interest." "I think you have to take the conflict of interest" out of journalism, Winer told me. "An amateur journalist simply doesn't have a conflict of interest, or the conflict of interest is so easily disclosed that you know you can sort of get it out of the way." +={journalism+3;Winer, Dave+4} + +These conflicts become more important as media becomes more concentrated (more on this below). A concentrated media can hide more from the public than an unconcentrated media can - as CNN admitted it did after the Iraq war because it was afraid of the consequences to its own employees.~{ Telephone interview with David Winer, 16 April 2003. }~ It also needs to sustain a more coherent account. (In the middle of the Iraq war, I read a post on the Internet from someone who was at that time listening to a satellite uplink with a reporter in Iraq. The New York headquarters was telling the reporter over and over that her account of the war was too bleak: She needed to offer a more optimistic story. When she told New York that wasn't warranted, they told her that /{they}/ were writing "the story.") +={CNN;media:commercial imperatives of;democracy:in technologies of expression+3;expression, technologies of:democratic+3;Iraq war;media:ownership concentration in} + +Blog space gives amateurs a way to enter the debate - "amateur" not in the sense of inexperienced, but in the sense of an Olympic athlete, meaning not paid by anyone to give their reports. It allows for a much broader range of input into a story, as reporting on the Columbia disaster revealed, when hundreds from across the southwest United States turned to the Internet to retell what they had seen.~{ John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of Information Online," /{New York Times,}/ 2 February 2003, A28; Staci D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall," Online Journalism Review, 2 February 2003, available at link #10. }~ And it drives readers to read across the range of accounts and "triangulate," as Winer puts it, the truth. Blogs, Winer says, are "communicating directly with our constituency, and the middle man is out of it" - with all the benefits, and costs, that might entail. + +Winer is optimistic about the future of journalism infected with blogs. "It's going to become an essential skill," Winer predicts, for public figures and increasingly for private figures as well. It's not clear that "journalism" is happy about this - some journalists have been told to curtail their blogging.~{ See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" /{New York Times,}/ 29 September 2003, C4. ("Not all news organizations have been as accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq who started a blog about his reporting of the war on March 9, stopped posting 12 days later at his bosses' request. Last year Steve Olafson, a /{Houston Chronicle}/ reporter, was fired for keeping a personal Web log, published under a pseudonym, that dealt with some of the issues and people he was covering.") }~ But it is clear that we are still in transition. "A lot of what we are doing now is warm-up exercises," Winer told me. There is a lot that must mature before this space has its mature effect. And as the inclusion of content in this space is the least infringing use of the Internet (meaning infringing on copyright), Winer said, "we will be the last thing that gets shut down." + +This speech affects democracy. Winer thinks that happens because "you don't have to work for somebody who controls, [for] a gate-keeper." That is true. But it affects democracy in another way as well. As more and more citizens express what they think, and defend it in writing, that will change the way people understand public issues. It is easy to be wrong and misguided in your head. It is harder when the product of your mind can be criticized by others. Of course, it is a rare human who admits that he has been persuaded that he is wrong. But it is even rarer for a human to ignore when he has been proven wrong. The writing of ideas, arguments, and criticism improves democracy. Today there are probably a couple of million blogs where such writing happens. When there are ten million, there will be something extraordinary to report. +={democracy:public discourse in} + +!_ John Seely Brown +is the chief scientist of the Xerox Corporation. His work, as his Web site describes it, is "human learning and ... the creation of knowledge ecologies for creating ... innovation." +={Brown, John Seely+13} + +Brown thus looks at these technologies of digital creativity a bit differently from the perspectives I've sketched so far. I'm sure he would be excited about any technology that might improve democracy. But his real excitement comes from how these technologies affect learning. + +As Brown believes, we learn by tinkering. When "a lot of us grew up," he explains, that tinkering was done "on motorcycle engines, lawn-mower engines, automobiles, radios, and so on." But digital technologies enable a different kind of tinkering - with abstract ideas though in concrete form. The kids at Just Think! not only think about how a commercial portrays a politician; using digital technology, they can take the commercial apart and manipulate it, tinker with it to see how it does what it does. Digital technologies launch a kind of bricolage, or "free collage," as Brown calls it. Many get to add to or transform the tinkering of many others. +={advertising;Just Think!+5;commercials;education:tinkering as means of+11} + +The best large-scale example of this kind of tinkering so far is free software or open-source software (FS/{OSS). FS}/OSS is software whose source code is shared. Anyone can download the technology that makes a FS/OSS program run. And anyone eager to learn how a particular bit of FS/OSS technology works can tinker with the code. +={free software/open-source software (FS/OSS)} + +This opportunity creates a "completely new kind of learning platform," as Brown describes. "As soon as you start doing that, you ... unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it." Each effort is a kind of apprenticeship. "Open source becomes a major apprenticeship platform." + +In this process, "the concrete things you tinker with are abstract. They are code." Kids are "shifting to the ability to tinker in the abstract, and this tinkering is no longer an isolated activity that you're doing in your garage. You are tinkering with a community platform. ... You are tinkering with other people's stuff. The more you tinker the more you improve." The more you improve, the more you learn. + +This same thing happens with content, too. And it happens in the same collaborative way when that content is part of the Web. As Brown puts it, "the Web [is] the first medium that truly honors multiple forms of intelligence." Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web amplifies much more than text. "The Web ... says if you are musical, if you are artistic, if you are visual, if you are interested in film ... [then] there is a lot you can start to do on this medium. [It] can now amplify and honor these multiple forms of intelligence." + +Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think! teach: that this tinkering with culture teaches as well as creates. It develops talents differently, and it builds a different kind of recognition. +={Barish, Stephanie;Daley, Elizabeth} + +Yet the freedom to tinker with these objects is not guaranteed. Indeed, as we'll see through the course of this book, that freedom is increasingly highly contested. While there's no doubt that your father had the right to tinker with the car engine, there's great doubt that your child will have the right to tinker with the images she finds all around. The law and, increasingly, technology interfere with a freedom that technology, and curiosity, would otherwise ensure. + +These restrictions have become the focus of researchers and scholars. Professor Ed Felten of Princeton (whom we'll see more of in chapter 10) has developed a powerful argument in favor of the "right to tinker" as it applies to computer science and to knowledge in general.~{ See, for example, Edward Felten and Andrew Appel, "Technological Access Control Interferes with Noninfringing Scholarship," /{Communications of the Association for Computer Machinery}/ 43 (2000): 9. }~ But Brown's concern is earlier, or younger, or more fundamental. It is about the learning that kids can do, or can't do, because of the law. +={Felten, Ed} + +"This is where education in the twenty-first century is going," Brown explains. We need to "understand how kids who grow up digital think and want to learn." + +"Yet," as Brown continued, and as the balance of this book will evince, "we are building a legal system that completely suppresses the natural tendencies of today's digital kids. ... We're building an architecture that unleashes 60 percent of the brain [and] a legal system that closes down that part of the brain." + +We're building a technology that takes the magic of Kodak, mixes moving images and sound, and adds a space for commentary and an opportunity to spread that creativity everywhere. But we're building the law to close down that technology. + +"No way to run a culture," as Brewster Kahle, whom we'll meet in chapter 9, quipped to me in a rare moment of despondence. +={Kahle, Brewster} + +1~ Chapter Three: Catalogs + +!_ In the fall of 2002, +Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer Polytechnic Institute, in Troy, New York. His major at RPI was information technology. Though he is not a programmer, in October Jesse decided to begin to tinker with search engine technology that was available on the RPI network. +={Jordan, Jesse;Rensselaer Polytechnic Institute (RPI)+2:computer network search engine of+10;search engines+10;university computer networks, p2p sharing on+20;Internet: search engines used on+6} + +RPI is one of America's foremost technological research institutions. It offers degrees in fields ranging from architecture and engineering to information sciences. More than 65 percent of its five thousand undergraduates finished in the top 10 percent of their high school class. The school is thus a perfect mix of talent and experience to imagine and then build, a generation for the network age. + +RPI's computer network links students, faculty, and administration to one another. It also links RPI to the Internet. Not everything available on the RPI network is available on the Internet. But the network is designed to enable students to get access to the Internet, as well as more intimate access to other members of the RPI community. + +Search engines are a measure of a network's intimacy. Google brought the Internet much closer to all of us by fantastically improving the quality of search on the network. Specialty search engines can do this even better. The idea of "intranet" search engines, search engines that search within the network of a particular institution, is to provide users of that institution with better access to material from that institution. Businesses do this all the time, enabling employees to have access to material that people outside the business can't get. Universities do it as well. +={Google+1} + +These engines are enabled by the network technology itself. Microsoft, for example, has a network file system that makes it very easy for search engines tuned to that network to query the system for information about the publicly (within that network) available content. Jesse's search engine was built to take advantage of this technology. It used Microsoft's network file system to build an index of all the files available within the RPI network. +={Jordan, Jesse+16;Microsoft:network file system of+1} + +Jesse's wasn't the first search engine built for the RPI network. Indeed, his engine was a simple modification of engines that others had built. His single most important improvement over those engines was to fix a bug within the Microsoft file-sharing system that could cause a user's computer to crash. With the engines that existed before, if you tried to access a file through a Windows browser that was on a computer that was off-line, your computer could crash. Jesse modified the system a bit to fix that problem, by adding a button that a user could click to see if the machine holding the file was still on-line. + +Jesse's engine went on-line in late October. Over the following six months, he continued to tweak it to improve its functionality. By March, the system was functioning quite well. Jesse had more than one million files in his directory, including every type of content that might be on users' computers. + +Thus the index his search engine produced included pictures, which students could use to put on their own Web sites; copies of notes or research; copies of information pamphlets; movie clips that students might have created; university brochures - basically anything that users of the RPI network made available in a public folder of their computer. + +But the index also included music files. In fact, one quarter of the files that Jesse's search engine listed were music files. But that means, of course, that three quarters were not, and - so that this point is absolutely clear - Jesse did nothing to induce people to put music files in their public folders. He did nothing to target the search engine to these files. He was a kid tinkering with a Google-like technology at a university where he was studying information science, and hence, tinkering was the aim. Unlike Google, or Microsoft, for that matter, he made no money from this tinkering; he was not connected to any business that would make any money from this experiment. He was a kid tinkering with technology in an environment where tinkering with technology was precisely what he was supposed to do. +={Google;education:tinkering as means of} + +On April 3, 2003, Jesse was contacted by the dean of students at RPI. The dean informed Jesse that the Recording Industry Association of America, the RIAA, would be filing a lawsuit against him and three other students whom he didn't even know, two of them at other universities. A few hours later, Jesse was served with papers from the suit. As he read these papers and watched the news reports about them, he was increasingly astonished. +={copyright infringement lawsuits:in recording industry+11;copyright infringement lawsuits:against student file sharing+11;recording industry:copyright infringement lawsuits of+11;Recording Industry Association of America (RIAA):copyright infringement lawsuits filed by+11} + +"It was absurd," he told me. "I don't think I did anything wrong. ... I don't think there's anything wrong with the search engine that I ran or ... what I had done to it. I mean, I hadn't modified it in any way that promoted or enhanced the work of pirates. I just modified the search engine in a way that would make it easier to use" - again, a /{search engine}/, which Jesse had not himself built, using the Windows file-sharing system, which Jesse had not himself built, to enable members of the RPI community to get access to content, which Jesse had not himself created or posted, and the vast majority of which had nothing to do with music. + +But the RIAA branded Jesse a pirate. They claimed he operated a network and had therefore "willfully" violated copyright laws. They demanded that he pay them the damages for his wrong. For cases of "willful infringement," the Copyright Act specifies something lawyers call "statutory damages." These damages permit a copyright owner to claim $150,000 per infringement. As the RIAA alleged more than one hundred specific copyright infringements, they therefore demanded that Jesse pay them at least $15,000,000. +={copyright infringement lawsuits:exaggerated claims of|statutory damages of|individual defendants intimidated by+6;statutory damages;Recording Industry Association of America (RIAA):intimidation tactics of+6} + +Similar lawsuits were brought against three other students: one other student at RPI, one at Michigan Technical University, and one at Princeton. Their situations were similar to Jesse's. Though each case was different in detail, the bottom line in each was exactly the same: huge demands for "damages" that the RIAA claimed it was entitled to. If you added up the claims, these four lawsuits were asking courts in the United States to award the plaintiffs close to $100 /{billion}/ - six times the /{total}/ profit of the film industry in 2001.~{ Tim Goral, "Recording Industry Goes After Campus P-2-P Networks: Suit Alleges $97.8 Billion in Damages," /{Professional Media Group LCC}/ 6 (2003): 5, available at 2003 WL 55179443. }~ +={Michigan Technical University;Princeton University} + +Jesse called his parents. They were supportive but a bit frightened. An uncle was a lawyer. He began negotiations with the RIAA. They demanded to know how much money Jesse had. Jesse had saved $12,000 from summer jobs and other employment. They demanded $12,000 to dismiss the case. + +The RIAA wanted Jesse to admit to doing something wrong. He refused. They wanted him to agree to an injunction that would essentially make it impossible for him to work in many fields of technology for the rest of his life. He refused. They made him understand that this process of being sued was not going to be pleasant. (As Jesse's father recounted to me, the chief lawyer on the case, Matt Oppenheimer, told Jesse, "You don't want to pay another visit to a dentist like me.") And throughout, the RIAA insisted it would not settle the case until it took every penny Jesse had saved. +={Oppenheimer, Matt} + +Jesse's family was outraged at these claims. They wanted to fight. But Jesse's uncle worked to educate the family about the nature of the American legal system. Jesse could fight the RIAA. He might even win. But the cost of fighting a lawsuit like this, Jesse was told, would be at least $250,000. If he won, he would not recover that money. If he won, he would have a piece of paper saying he had won, and a piece of paper saying he and his family were bankrupt. +={legal system, attorney costs in} + +So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. + +The recording industry insists this is a matter of law and morality. Let's put the law aside for a moment and think about the morality. Where is the morality in a lawsuit like this? What is the virtue in scapegoatism? The RIAA is an extraordinarily powerful lobby. The president of the RIAA is reported to make more than $1 million a year. Artists, on the other hand, are not well paid. The average recording artist makes $45,900.~{ Occupational Employment Survey, U.S. Dept. of Labor (2001) (27-2042 - Musicians and Singers). See also National Endowment for the Arts, /{More Than One in a Blue Moon}/ (2000). }~ There are plenty of ways for the RIAA to affect and direct policy. So where is the morality in taking money from a student for running a search engine?~{ Douglas Lichtman makes a related point in "KaZaA and Punishment," /{Wall Street Journal,}/ 10 September 2003, A24. }~ +={artists:recording industry payments to;recording industry:artist remuneration in;Recording Industry Association of America (RIAA):lobbying power of} + +On June 23, Jesse wired his savings to the lawyer working for the RIAA. The case against him was then dismissed. And with this, this kid who had tinkered a computer into a $15 million lawsuit became an activist: + +_1 I was definitely not an activist [before]. I never really meant to be an activist. ... [But] I've been pushed into this. In no way did I ever foresee anything like this, but I think it's just completely absurd what the RIAA has done." + +Jesse's parents betray a certain pride in their reluctant activist. As his father told me, Jesse "considers himself very conservative, and so do I. ... He's not a tree hugger. . . . I think it's bizarre that they would pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record." + +1~ Chapter Four: "Pirates" +={piracy:in development of content industry+43} + +!_ If "piracy" means +using the creative property of others without their permission - if "if value, then right" is true - then the history of the content industry is a history of piracy. Every important sector of "big media" today - film, records, radio, and cable TV - was born of a kind of piracy so defined. The consistent story is how last generation's pirates join this generation's country club - until now. +={creative property: "if value, then right" theory of;if value, then right, theory} + +% note bad sort: ={"if value, then right" theory} + +2~ Film + +The film industry of Hollywood was built by fleeing pirates.~{ I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, /{Copyrights and Copywrongs,}/ 87-93, which details Edison's "adventures" with copyright and patent. }~ Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison. These controls were exercised through a monopoly "trust," the Motion Pictures Patents Company, and were based on Thomas Edison's creative property - patents. Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded. As one commentator tells one part of the story, +={Film industry:patent piracy at the inception of+4;Motion Pictures Patents Company (MPPC)+2;Hollywood film industry+3;patents:on film technology+4} + +_1 A January 1909 deadline was set for all companies to comply with the license. By February, unlicensed outlaws, who referred to themselves as independents protested the trust and carried on business without submitting to the Edison monopoly. In the summer of 1909 the independent movement was in full-swing, with producers and theater owners using illegal equipment and imported film stock to create their own underground market. + +_1 With the country experiencing a tremendous expansion in the number of nickelodeons, the Patents Company reacted to the independent movement by forming a strong-arm subsidiary known as the General Film Company to block the entry of non-licensed independents. With coercive tactics that have become legendary, General Film confiscated unlicensed equipment, discontinued product supply to theaters which showed unlicensed films, and effectively monopolized distribution with the acquisition of all U.S. film exchanges, except for the one owned by the independent William Fox who defied the Trust even after his license was revoked."~{ J. A. Aberdeen, /{Hollywood Renegades: The Society of Independent Motion Picture Producers}/ (Cobblestone Entertainment, 2000) and expanded texts posted at "The Edison Movie Monopoly: The Motion Picture Patents Company vs. the Independent Outlaws," available at link #11. For a discussion of the economic motive behind both these limits and the limits imposed by Victor on phonographs, see Randal C. Picker, "From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright" (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics, Working Paper No. 159. }~ +={Fox, William; General Film Company} + +The Napsters of those days, the "independents," were companies like Fox. And no less than today, these independents were vigorously resisted. "Shooting was disrupted by machinery stolen, and 'accidents' resulting in loss of negatives, equipment, buildings and sometimes life and limb frequently occurred."~{ Marc Wanamaker, "The First Studios," /{The Silents Majority,}/ archived at link #12. }~ That led the independents to flee the East Coast. California was remote enough from Edison's reach that film- makers there could pirate his inventions without fear of the law. And the leaders of Hollywood filmmaking, Fox most prominently, did just that. +={Edison, Thomas+5} + +Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the patent holder a truly "limited" monopoly (just seventeen years at that time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edison's creative property. +={patents:duration of} + +2~ Recorded Music +={composers, copyright protections of+10;copyright law:on music recordings+10;recording industry:copyright protections in+10|piracy in+10} + +The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. + +At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of their music and the exclusive right to control public performances of their music. In other words, in 1900, if I wanted a copy of Phil Russel's 1899 hit "Happy Mose," the law said I would have to pay for the right to get a copy of the musical score, and I would also have to pay for the right to perform it publicly. +={Fourneaux, Henri+1;phonograph+2;player pianos+1;Russel, Phil} + +But what if I wanted to record "Happy Mose," using Edison's phonograph or Fourneaux's player piano? Here the law stumbled. It was clear enough that I would have to buy any copy of the musical score that I performed in making this recording. And it was clear enough that I would have to pay for any public performance of the work I was recording. But it wasn't totally clear that I would have to pay for a "public performance" if I recorded the song in my own house (even today, you don't owe the Beatles anything if you sing their songs in the shower), or if I recorded the song from memory (copies in your brain are not - yet - regulated by copyright law). So if I simply sang the song into a recording device in the privacy of my own home, it wasn't clear that I owed the composer anything. And more importantly, it wasn't clear whether I owed the composer anything if I then made copies of those recordings. Because of this gap in the law, then, I could effectively pirate someone else's song without paying its composer anything. + +The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it, +={Kittredge, Alfred+1;music publishing+2} + +_1 Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it. Along come the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for [their] rights.~{ To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in /{Legislative History of the 1909 Copyright Act,}/ E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). }~ +={copyright law:authors vs. composers+7;creative property:of authors vs. composers+7;recording industry:composers' rights vs. producers' rights in} + +The innovators who developed the technology to record other people's works were "sponging upon the toil, the work, the talent, and genius of American composers,"~{ To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of Nathan Burkan, attorney for the Music Publishers Association). }~ and the "music publishing industry" was thereby "at the complete mercy of this one pirate."~{ To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of Nathan Burkan, attorney for the Music Publishers Association). }~ As John Philip Sousa put it, in as direct a way as possible, "When they make money out of my pieces, I want a share of it."~{ To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). }~ +={Sousa, John Philip} + +These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that "it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction." Rather, the machines increased the sales of sheet music.~{ To Amend and Consolidate the Acts Respecting Copyright, 283-84 (statement of Albert Walker, representative of the Auto-Music Perforating Company of New York). }~ In any case, the innovators argued, the job of Congress was "to consider first the interest of [the public], whom they represent, and whose servants they are." "All talk about 'theft,'" the general counsel of the American Graphophone Company wrote, "is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute."~{ To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association). }~ +={American Graphophone Company;player pianos;sheet music;Congress, U.S.:on copyright laws+4|on recording industry+4;copyright law:statutory licenses in+6;recording industry:statutory license system in+6} + +The law soon resolved this battle in favor of the composer /{and}/ the recording artist. Congress amended the law to make sure that composers would be paid for the "mechanical reproductions" of their music. But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. +={cover songs} + +American law ordinarily calls this a "compulsory license," but I will refer to it as a "statutory license." A statutory license is a license whose key terms are set by law. After Congress's amendment of the Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. +={compulsory license+4;statutory licenses+4} + +This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if Grisham gives the publisher permission. Grisham, in turn, is free to charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham's work except with permission of Grisham. +={Grisham, John+1} + +But the law governing recordings gives recording artists less. And thus, in effect, the law /{subsidizes}/ the recording industry through a kind of piracy - by giving recording artists a weaker right than it otherwise gives creative authors. The Beatles have less control over their creative work than Grisham does. And the beneficiaries of this less control are the recording industry and the public. The recording industry gets something of value for less than it otherwise would pay; the public gets access to a much wider range of musical creativity. Indeed, Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of rights holders, and that that power would stifle follow-on creativity.~{ Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in /{Legislative History of the 1909 Copyright Act,}/ E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). }~ +={Beatles} + +While the recording industry has been quite coy about this recently, historically it has been quite a supporter of the statutory license for records. As a 1967 report from the House Committee on the Judiciary relates, + +_1 the record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice."~{ Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on the Judiciary, 90th Cong., 1st sess., House Document no. 83, 66 (8 March 1967). I am grateful to Glenn Brown for drawing my attention to this report. }~ + +By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit. + +2~ Radio +={recording industry:radio broadcast and+7} + +Radio was also born of piracy. + +When a radio station plays a record on the air, that constitutes a "public performance" of the composer's work.~{ See 17 /{United States Code,}/ sections 106 and 110. At the beginning, record companies printed "Not Licensed for Radio Broadcast" and other messages purporting to restrict the ability to play a record on a radio station. Judge Learned Hand rejected the argument that a warning attached to a record might restrict the rights of the radio station. See /{RCA Manufacturing Co. v. Whiteman,}/ 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, "From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright," /{University of Chicago Law Review}/ 70 (2003): 281. }~ As I described above, the law gives the composer (or copyright holder) an exclusive right to public performances of his work. The radio station thus owes the composer money for that performance. + +But when the radio station plays a record, it is not only performing a copy of the /{composer's}/ work. The radio station is also performing a copy of the /{recording artist's}/ work. It's one thing to have "Happy Birthday" sung on the radio by the local children's choir; it's quite another to have it sung by the Rolling Stones or Lyle Lovett. The recording artist is adding to the value of the composition performed on the radio station. And if the law were perfectly consistent, the radio station would have to pay the recording artist for his work, just as it pays the composer of the music for his work. +={artists:recording industry payments to+3;radio:music recordings played on+3;recording industry:artist remuneration in+3} + +But it doesn't. Under the law governing radio performances, the radio station does not have to pay the recording artist. The radio station need only pay the composer. The radio station thus gets a bit of something for nothing. It gets to perform the recording artist's work for free, even if it must pay the composer something for the privilege of playing the song. + +This difference can be huge. Imagine you compose a piece of music. Imagine it is your first. You own the exclusive right to authorize public performances of that music. So if Madonna wants to sing your song in public, she has to get your permission. +={Madonna+1} + +Imagine she does sing your song, and imagine she likes it a lot. She then decides to make a recording of your song, and it becomes a top hit. Under our law, every time a radio station plays your song, you get some money. But Madonna gets nothing, save the indirect effect on the sale of her CDs. The public performance of her recording is not a "protected" right. The radio station thus gets to /{pirate}/ the value of Madonna's work without paying her anything. + +No doubt, one might argue that, on balance, the recording artists benefit. On average, the promotion they get is worth more than the performance rights they give up. Maybe. But even if so, the law ordinarily gives the creator the right to make this choice. By making the choice for him or her, the law gives the radio station the right to take something for nothing. + +2~ Cable TV +={cable television+12} + +Cable TV was also born of a kind of piracy. + +When cable entrepreneurs first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold. Cable companies were thus Napsterizing broadcasters' content, but more egregiously than anything Napster ever did - Napster never charged for the content it enabled others to give away. +={Napster;television:cable vs. broadcast+10} + +Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the practice as a kind of "unfair and potentially destructive competition."~{ Copyright Law Revision - CATV: Hearing on S. 1006 Before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel H. Hyde, chairman of the Federal Communications Commission). }~ There may have been a "public interest" in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public interest dictate that you use somebody else's property?"~{ Copyright Law Revision - CATV, 116 (statement of Douglas A. Anello, general counsel of the National Association of Broadcasters). }~ As another broadcaster put it, +={Anello, Douglas;Burdick, Quentin;Hyde, Rosel;copyright law:on cable television rebroadcasting+9} + +_1 The extraordinary thing about the CATV business is that it is the only business I know of where the product that is being sold is not paid for."~{ Copyright Law Revision - CATV, 126 (statement of Ernest W. Jennes, general counsel of the Association of Maximum Service Telecasters, Inc.). }~ + +Again, the demand of the copyright holders seemed reasonable enough: + +_1 All we are asking for is a very simple thing, that people who now take our property for nothing pay for it. We are trying to stop piracy and I don't think there is any lesser word to describe it. I think there are harsher words which would fit it."~{ Copyright Law Revision - CATV, 169 (joint statement of Arthur B. Krim, president of United Artists Corp., and John Sinn, president of United Artists Television, Inc.). }~ + +These were "free-ride[rs]," Screen Actor's Guild president Charlton Heston said, who were "depriving actors of compensation."~{ Copyright Law Revision - CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). }~ +={Screen Actors Guild;Heston, Charlton} + +But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it, +={Zimmerman, Edwin+1} + +_1 Our point here is that unlike the problem of whether you have any copyright protection at all, the problem here is whether copyright holders who are already compensated, who already have a monopoly, should be permitted to extend that monopoly. ... The question here is how much compensation they should have and how far back they should carry their right to compensation."~{ Copyright Law Revision - CATV, 216 (statement of Edwin M. Zimmerman, acting assistant attorney general). }~ + +Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing. +={Supreme Court, U.S.:on cable television} + +It took Congress almost thirty years before it resolved the question of whether cable companies had to pay for the content they "pirated." In the end, Congress resolved this question in the same way that it resolved the question about record players and player pianos. Yes, cable companies would have to pay for the content that they broadcast; but the price they would have to pay was not set by the copyright owner. The price was set by law, so that the broadcasters couldn't exercise veto power over the emerging technologies of cable. Cable companies thus built their empire in part upon a "piracy" of the value created by broadcasters' content. +={Congress, U.S.:on cable television|on copyright laws} + +!_ These separate stories +sing a common theme. If "piracy" means using value from someone else's creative property without permission from that creator - as it is increasingly described today~{ See, for example, National Music Publisher's Association, /{The Engine of Free Expression: Copyright on the Internet - The Myth of Free Information,}/ available at link #13. "The threat of piracy"the use of someone else's creative work without permission or compensation - has grown with the Internet." }~ - then /{every}/ industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. ... The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation - until now. + +1~ Chapter Five: "Piracy" +={piracy:commercial+20} + +!_ There is piracy +of copyrighted material. Lots of it. This piracy comes in many forms. The most significant is commercial piracy, the unauthorized taking of other people's content within a commercial context. Despite the many justifications that are offered in its defense, this taking is wrong. No one should condone it, and the law should stop it. + +But as well as copy-shop piracy, there is another kind of "taking" that is more directly related to the Internet. That taking, too, seems wrong to many, and it is wrong much of the time. Before we paint this taking "piracy," however, we should understand its nature a bit more. For the harm of this taking is significantly more ambiguous than outright copying, and the law should account for that ambiguity, as it has so often done in the past. + +2~ Piracy I + +All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people's copyrighted content, copy it, and sell it - all without the permission of a copyright owner. The recording industry estimates that it loses about $4.6 billion every year to physical piracy~{ See IFPI (International Federation of the Phonographic Industry), /{The Recording Industry Commercial Piracy Report 2003,}/ July 2003, available at link #14. See also Ben Hunt, "Companies Warned on Music Piracy Risk," /{Financial Times,}/ 14 February 2003, 11. }~ (that works out to one in three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually worldwide to piracy. +={Asia, commercial piracy in+3;piracy:in Asia+3;CDs:foreign piracy of+3;copyright law:international compliance with+6;international law+5;piracy:international+7;recording industry:international piracy in;Motion Pictures Patents Company (MPPC)} + +% check reference, MPAA appears to be indexed to Motion Pictures Patents Company (MPPC) which is referred to elsewhere in text as "Motion Pictures _Patent_ Company" + +This is piracy plain and simple. Nothing in the argument of this book, nor in the argument that most people make when talking about the subject of this book, should draw into doubt this simple point: This piracy is wrong. + +Which is not to say that excuses and justifications couldn't be made for it. We could, for example, remind ourselves that for the first one hundred years of the American Republic, America did not honor foreign copyrights. We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right. +={developing countries, foreign patent costs in+3} + +That excuse isn't terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule. The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well. + +True, these local rules have, in effect, been imposed upon these countries. No country can be part of the world economy and choose not to protect copyright internationally. We may have been born a pirate nation, but we will not allow any other nation to have a similar childhood. + +If a country is to be treated as a sovereign, however, then its laws are its laws regardless of their source. The international law under which these nations live gives them some opportunities to escape the burden of intellectual property law.~{ See Peter Drahos with John Braithwaite, /{Information Feudalism: Who Owns the Knowledge Economy?}/ (New York: The New Press, 2003), 10-13, 209. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement obligates member nations to create administrative and enforcement mechanisms for intellectual property rights, a costly proposition for developing countries. Additionally, patent rights may lead to higher prices for staple industries such as agriculture. Critics of TRIPS question the disparity between burdens imposed upon developing countries and benefits conferred to industrialized nations. TRIPS does permit governments to use patents for public, noncommercial uses without first obtaining the patent holder's permission. Developing nations may be able to use this to gain the benefits of foreign patents at lower prices. This is a promising strategy for developing nations within the TRIPS framework. }~ In my view, more developing nations should take advantage of that opportunity, but when they don't, then their laws should be respected. And under the laws of these nations, this piracy is wrong. + +Alternatively, we could try to excuse this piracy by noting that in any case, it does no harm to the industry. The Chinese who get access to American CDs at 50 cents a copy are not people who would have bought those American CDs at $15 a copy. So no one really has any less money than they otherwise would have had.~{ For an analysis of the economic impact of copying technology, see Stan Liebowitz, /{Rethinking the Network Economy}/ (New York: Amacom, 2002), 144-90. "In some instances ... the impact of piracy on the copyright holder's ability to appropriate the value of the work will be negligible. One obvious instance is the case where the individual engaging in pirating would not have purchased an original even if pirating were not an option." Ibid., 149. }~ +={Asia, commercial piracy in;piracy:in Asia;CDs:foreign piracy of;copyright law:statutory licenses in} + +This is often true (though I have friends who have purchased many thousands of pirated DVDs who certainly have enough money to pay for the content they have taken), and it does mitigate to some degree the harm caused by such taking. Extremists in this debate love to say, "You wouldn't go into Barnes & Noble and take a book off of the shelf without paying; why should it be any different with on-line music?" The difference is, of course, that when you take a book from Barnes & Noble, it has one less book to sell. By contrast, when you take an MP3 from a computer network, there is not one less CD that can be sold. The physics of piracy of the intangible are different from the physics of piracy of the tangible. +={DVDs:piracy of;piracy:of intangible property} + +This argument is still very weak. However, although copyright is a property right of a very special sort, it /{is}/ a property right. Like all property rights, the copyright gives the owner the right to decide the terms under which content is shared. If the copyright owner doesn't want to sell, she doesn't have to. There are exceptions: important statutory licenses that apply to copyrighted content regardless of the wish of the copyright owner. Those licenses give people the right to "take" copyrighted content whether or not the copyright owner wants to sell. But where the law does not give people the right to take content, it is wrong to take that content even if the wrong does no harm. If we have a property system, and that system is properly balanced to the technology of a time, then it is wrong to take property without the permission of a property owner. That is exactly what "property" means. +={statutory licenses} + +Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner. When the Chinese "steal" Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the value of the software that was taken. But it gains users who are used to life in the Microsoft world. Over time, as the nation grows more wealthy, more and more people will buy software rather than steal it. And hence over time, because that buying will benefit Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft. Without piracy, then, Microsoft would lose. +={Asia, commercial piracy in;piracy:in Asia;free software/open-source software (FS/OSS);GNU/Linux operating system;Linux operating system;Microsoft:competitive strategies of;Windows;Microsoft:international software piracy of|Windows operating system of} + +This argument, too, is somewhat true. The addiction strategy is a good one. Many businesses practice it. Some thrive because of it. Law students, for example, are given free access to the two largest legal databases. The companies marketing both hope the students will become so used to their service that they will want to use it and not the other when they become lawyers (and must pay high subscription fees). +={law:databases of case reports in} + +Still, the argument is not terribly persuasive. We don't give the alcoholic a defense when he steals his first beer, merely because that will make it more likely that he will buy the next three. Instead, we ordinarily allow businesses to decide for themselves when it is best to give their product away. If Microsoft fears the competition of GNU/Linux, then Microsoft can give its product away, as it did, for example, with Internet Explorer to fight Netscape. A property right means giving the property owner the right to say who gets access to what - at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong. +={Netscape;Internet Explorer} + +Thus, while I understand the pull of these justifications for piracy, and I certainly see the motivation, in my view, in the end, these efforts at justifying commercial piracy simply don't cut it. This kind of piracy is rampant and just plain wrong. It doesn't transform the content it steals; it doesn't transform the market it competes in. It merely gives someone access to something that the law says he should not have. Nothing has changed to draw that law into doubt. This form of piracy is flat out wrong. + +But as the examples from the four chapters that introduced this part suggest, even if some piracy is plainly wrong, not all "piracy" is. Or at least, not all "piracy" is wrong if that term is understood in the way it is increasingly used today. Many kinds of "piracy" are useful and productive, to produce either new content or new ways of doing business. Neither our tradition nor any tradition has ever banned all "piracy" in that sense of the term. + +This doesn't mean that there are no questions raised by the latest piracy concern, peer-to-peer file sharing. But it does mean that we need to understand the harm in peer-to-peer sharing a bit more before we condemn it to the gallows with the charge of piracy. +={peer-to-peer (p2p) file sharing:piracy vs.;piracy:profit reduction as criterion of|p2p file sharing vs.} + +For (1) like the original Hollywood, p2p sharing escapes an overly controlling industry; and (2) like the original recording industry, it simply exploits a new way to distribute content; but (3) unlike cable TV, no one is selling the content that is shared on p2p services. + +These differences distinguish p2p sharing from true piracy. They should push us to find a way to protect artists while enabling this sharing to survive. + +2~ Piracy II +={peer-to-peer (p2p) file sharing:piracy vs.+53;piracy:profit reduction as criterion of+23|p2p file sharing vs.+53} + +The key to the "piracy" that the law aims to quash is a use that "rob[s] the author of [his] profit."~{ /{Bach v. Longman,}/ 98 Eng. Rep. 1274 (1777). }~ This means we must determine whether and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit. + +Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet (and, arguably, off the Internet as well~{ See Clayton M. Christensen, /{The Innovator's Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business}/ (New York: HarperBusiness, 2000). Professor Christensen examines why companies that give rise to and dominate a product area are frequently unable to come up with the most creative, paradigm-shifting uses for their own products. This job usually falls to outside innovators, who reassemble existing technology in inventive ways. For a discussion of Christensen's ideas, see Lawrence Lessig, /{Future,}/ 89-92, 139. }~), Shawn Fanning and crew had simply put together components that had been developed independently. +={Fanning, Shawn;innovation;Internet:music files downloaded from+8;peer-to-peer (p2p) file sharing:participation levels of;technology:innovative improvements in;Napster+1} + +The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the system.~{ See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," /{San Francisco Chronicle,}/ 24 September 2002, A1; "Rock 'n' Roll Suicide," /{New Scientist,}/ 6 July 2002, 42; Benny Evangelista, "Napster Names CEO, Secures New Financing," /{San Francisco Chronicle,}/ 23 May 2003, C1; "Napster's Wake-Up Call," /{Economist,}/ 24 June 2000, 23; John Naughton, "Hollywood at War with the Internet" (London) /{Times,}/ 26 July 2002, 18. }~ Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It boasts over 100 million members.) These services' systems are different architecturally, though not very different in function: Each enables users to make content available to any number of other users. With a p2p system, you can share your favorite songs with your best friend - or your 20,000 best friends. +={Kazaa;Napster:number of registrations on|replacement of} + +According to a number of estimates, a huge proportion of Americans have tasted file-sharing technology. A study by Ipsos-Insight in September 2002 estimated that 60 million Americans had downloaded music - 28 percent of Americans older than 12.~{ See Ipsos-Insight, /{TEMPO: Keeping Pace with Online Music Distribution}/ (September 2002), reporting that 28 percent of Americans aged twelve and older have downloaded music off of the Internet and 30 percent have listened to digital music files stored on their computers. }~ A survey by the NPD group quoted in /{The New York Times}/ estimated that 43 million citizens used file-sharing networks to exchange content in May 2003.~{ Amy Harmon, "Industry Offers a Carrot in Online Music Fight," /{New York Times,}/ 6 June 2003, A1. }~ The vast majority of these are not kids. Whatever the actual figure, a massive quantity of content is being "taken" on these networks. The ease and inexpensiveness of file-sharing networks have inspired millions to enjoy music in a way that they hadn't before. + +Some of this enjoying involves copyright infringement. Some of it does not. And even among the part that is technically copyright infringement, calculating the actual harm to copyright owners is more complicated than one might think. So consider - a bit more carefully than the polarized voices around this debate usually do - the kinds of sharing that file sharing enables, and the kinds of harm it entails. + +File sharers share different kinds of content. We can divide these different kinds into four types. +={peer-to-peer (p2p) file sharing:four types of+4;Napster:range of content on} + +_1 A. There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna CD is released, rather than buying the CD, these users simply take it. We might quibble about whether everyone who takes it would actually have bought it if sharing didn't make it available for free. Most probably wouldn't have, but clearly there are some who would. The latter are the target of category A: users who download instead of purchasing. + +_1 B. There are some who use sharing networks to sample music before purchasing it. Thus, a friend sends another friend an MP3 of an artist he's not heard of. The other friend then buys CDs by that artist. This is a kind of targeted advertising, quite likely to succeed. If the friend recommending the album gains nothing from a bad recommendation, then one could expect that the recommendations will actually be quite good. The net effect of this sharing could increase the quantity of music purchased. +={advertising} + +_1 C. There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high. This use of sharing networks is among the most rewarding for many. Songs that were part of your childhood but have long vanished from the marketplace magically appear again on the network. (One friend told me that when she discovered Napster, she spent a solid weekend "recalling" old songs. She was astonished at the range and mix of content that was available.) For content not sold, this is still technically a violation of copyright, though because the copyright owner is not selling the content anymore, the economic harm is zero - the same harm that occurs when I sell my collection of 1960s 45-rpm records to a local collector. +={recording industry:out-of-print music of} + +_1 D. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. + +How do these different types of sharing balance out? + +Let's start with some simple but important points. From the perspective of the law, only type D sharing is clearly legal. From the perspective of economics, only type A sharing is clearly harmful.~{ See Liebowitz, /{Rethinking the Network Economy,}/ 148-49. }~ Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, yet good for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise available). So how sharing matters on balance is a hard question to answer - and certainly much more difficult than the current rhetoric around the issue suggests. + +Whether on balance sharing is harmful depends importantly on how harmful type A sharing is. Just as Edison complained about Hollywood, composers complained about piano rolls, recording artists complained about radio, and broadcasters complained about cable TV, the music industry complains that type A sharing is a kind of "theft" that is "devastating" the industry. +={Edison, Thomas} + +While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the recording industry's practice to blame technology for any drop in sales. The history of cassette recording is a good example. As a study by Cap Gemini Ernst & Young put it, "Rather than exploiting this new, popular technology, the labels fought it."~{ See Cap Gemini Ernst & Young, /{Technology Evolution and the Music Industry's Business Model Crisis}/ (2003), 3. This report describes the music industry's effort to stigmatize the budding practice of cassette taping in the 1970s, including an advertising campaign featuring a cassette-shape skull and the caption "Home taping is killing music."
At the time digital audio tape became a threat, the Office of Technical Assessment conducted a survey of consumer behavior. In 1988, 40 percent of consumers older than ten had taped music to a cassette format. U.S. Congress, Office of Technology Assessment, /{Copyright and Home Copying: Technology Challenges the Law,}/ OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October 1989), 145-56. }~ The labels claimed that every album taped was an album unsold, and when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer. +={cassette recording+1;recording industry:new technology opposed by+2;technology:established industries threatened by changes in+2} + +Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record turnaround. "In the end," Cap Gemini concludes, "the 'crisis' ... was not the fault of the tapers" who did not [stop after MTV came into being] - but had to a large extent resulted from stagnation in musical innovation at the major labels."~{ U.S. Congress, /{Copyright and Home Copying,}/ 4. }~ +={MTV} + +But just because the industry was wrong before does not mean it is wrong today. To evaluate the real threat that p2p sharing presents to the industry in particular, and society in general - or at least the society that inherits the tradition that gave us the film industry, the record industry, the radio industry, cable TV, and the VCR - the question is not simply whether type A sharing is harmful. The question is also /{how}/ harmful type A sharing is, and how beneficial the other types of sharing are. + +We start to answer this question by focusing on the net harm, from the standpoint of the industry as a whole, that sharing networks cause. The "net harm" to the industry as a whole is the amount by which type A sharing exceeds type B. If the record companies sold more records through sampling than they lost through substitution, then sharing networks would actually benefit music companies on balance. They would therefore have little /{static}/ reason to resist them. + +Could that be true? Could the industry as a whole be gaining because of file sharing? Odd as that might sound, the data about CD sales actually suggest it might be close. +={CDs:sales levels of+3;recording industry:CD sales level in+3;Recording Industry Association of America (RIAA):on CD sales decline+3} + +In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 million to 803 million units; revenues fell 6.7 percent.~{ See Recording Industry Association of America, /{2002 Yearend Statistics,}/ available at link #15. A later report indicates even greater losses. See Recording Industry Association of America, /{Some Facts About Music Piracy,}/ 25 June 2003, available at link #16: "In the past four years, unit shipments of recorded music have fallen by 26 percent from 1.16 billion units in 1999 to 860 million units in 2002 in the United States (based on units shipped). In terms of sales, revenues are down 14 percent, from $14.6 billion in 1999 to $12.6 billion last year (based on U.S. dollar value of shipments). The music industry worldwide has gone from a $39 billion industry in 2000 down to a $32 billion industry in 2002 (based on U.S. dollar value of shipments)." }~ This confirms a trend over the past few years. The RIAA blames Internet piracy for the trend, though there are many other causes that could account for this drop. SoundScan, for example, reports a more than 20 percent drop in the number of CDs released since 1999. That no doubt accounts for some of the decrease in sales. Rising prices could account for at least some of the loss. "From 1999 to 2001, the average price of a CD rose 7.2 percent, from $13.04 to $14.19."~{ Jane Black, "Big Music's Broken Record," BusinessWeek online, 13 February 2003, available at link #17. }~ Competition from other forms of media could also account for some of the decline. As Jane Black of /{BusinessWeek}/ notes, "The soundtrack to the film /{High Fidelity}/ has a list price of $18.98. You could get the whole movie [on DVD] for $19.99."~{ Ibid. }~ +={Black, Jane;CDs:prices of;DVDs:price of} + +But let's assume the RIAA is right, and all of the decline in CD sales is because of Internet sharing. Here's the rub: In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent. +={piracy:of intangible property+1} + +There are too many different things happening at the same time to explain these numbers definitively, but one conclusion is unavoidable: The recording industry constantly asks, "What's the difference between downloading a song and stealing a CD?" - but their own numbers reveal the difference. If I steal a CD, then there is one less CD to sell. Every taking is a lost sale. But on the basis of the numbers the RIAA provides, it is absolutely clear that the same is not true of downloads. If every download were a lost sale - if every use of Kazaa "rob[bed] the author of [his] profit" - then the industry would have suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6 times the number of CDs sold were downloaded for free, and yet sales revenue dropped by just 6.7 percent, then there is a huge difference between "downloading a song and stealing a CD." +={Kazaa} + +These are the harms - alleged and perhaps exaggerated but, let's assume, real. What of the benefits? File sharing may impose costs on the recording industry. What value does it produce in addition to these costs? +={peer-to-peer (p2p) file sharing:benefits of+8} + +One benefit is type C sharing - making available content that is technically still under copyright but is no longer commercially available. This is not a small category of content. There are millions of tracks that are no longer commercially available.~{ By one estimate, 75 percent of the music released by the major labels is no longer in print. See Online Entertainment and Copyright Law - Coming Soon to a Digital Device Near You: Hearing Before the Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared statement of the Future of Music Coalition), available at link #18. }~ And while it's conceivable that some of this content is not available because the artist producing the content doesn't want it to be made available, the vast majority of it is unavailable solely because the publisher or the distributor has decided it no longer makes economic sense /{to the company}/ to make it available. +={recording industry:out-of-print music of+3} + +In real space - long before the Internet - the market had a simple response to this problem: used book and record stores. There are thousands of used book and used record stores in America today.~{ While there are not good estimates of the number of used record stores in existence, in 2002, there were 7,198 used book dealers in the United States, an increase of 20 percent since 1993. See Book Hunter Press, /{The Quiet Revolution: The Expansion of the Used Book Market}/ (2002), available at link #19. Used records accounted for $260 million in sales in 2002. See National Association of Recording Merchandisers, "2002 Annual Survey Results," available at link #20. }~ These stores buy content from owners, then sell the content they buy. And under American copyright law, when they buy and sell this content, /{even if the content is still under copyright}/, the copyright owner doesn't get a dime. Used book and record stores are commercial entities; their owners make money from the content they sell; but as with cable companies before statutory licensing, they don't have to pay the copyright owner for the content they sell. +={books:free on-line releases of+4;books:out of print+3;books:resales of+2;peer-to-peer (p2p) file sharing:of books+4;used record sales} + +Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because the person making the content available isn't making money from making the content available. It is also different, of course, because in real space, when I sell a record, I don't have it anymore, while in cyberspace, when someone shares my 1949 recording of Bernstein's "Two Love Songs," I still have it. That difference would matter economically if the owner of the 1949 copyright were selling the record in competition to my sharing. But we're talking about the class of content that is not currently commercially available. The Internet is making it available, through cooperative sharing, without competing with the market. +={Bernstein, Leonard;Internet:books on+4} + +It may well be, all things considered, that it would be better if the copyright owner got something from this trade. But just because it may well be better, it doesn't follow that it would be good to ban used book stores. Or put differently, if you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well? + +Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur - the sharing of content that copyright owners want to have shared or for which there is no continuing copyright. This sharing clearly benefits authors and society. Science fiction author Cory Doctorow, for example, released his first novel, /{Down and Out in the Magic Kingdom}/, both free on-line and in bookstores on the same day. His (and his publisher's) thinking was that the on-line distribution would be a great advertisement for the "real" book. People would read part on-line, and then decide whether they liked the book or not. If they liked it, they would be more likely to buy it. Doctorow's content is type D content. If sharing networks enable his work to be spread, then both he and society are better off. (Actually, much better off: It is a great book!) +={Doctorow, Cory;Down and Out in the Magic Kingdom (Doctorow)} + +Likewise for work in the public domain: This sharing benefits society with no legal harm to authors at all. If efforts to solve the problem of type A sharing destroy the opportunity for type D sharing, then we lose something important in order to protect type A content. +={public domain:p2p sharing of works in} + +The point throughout is this: While the recording industry understandably says, "This is how much we've lost," we must also ask, "How much has society gained from p2p sharing? What are the efficiencies? What is the content that otherwise would be unavailable?" + +For unlike the piracy I described in the first section of this chapter, much of the "piracy" that file sharing enables is plainly legal and good. And like the piracy I described in chapter 4, much of this piracy is motivated by a new way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the recording industry, and cable TV, the question we should be asking about file sharing is how best to preserve its benefits while minimizing (to the extent possible) the wrongful harm it causes artists. The question is one of balance. The law should seek that balance, and that balance will be found only with time. + +"But isn't the war just a war against illegal sharing? Isn't the target just what you call type A sharing?" +={piracy:profit reduction as criterion of} + +You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing alone has been felt far beyond that one class of sharing. That much is obvious from the Napster case itself. When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements "down to zero."~{ See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at link #21. For an account of the litigation and its toll on Napster, see Joseph Menn, /{All the Rave: The Rise and Fall of Shawn Fanning's Napster}/ (New York: Crown Business, 2003), 269-82. }~ +={copyright infringement lawsuits:zero tolerance in+2;Napster:infringing material blocked by+1;peer-to-peer (p2p) file sharing:infringement protections in+1} + +If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement. There is no way to assure that a p2p system is used 100 percent of the time in compliance with the law, any more than there is a way to assure that 100 percent of VCRs or 100 percent of Xerox machines or 100 percent of handguns are used in compliance with the law. Zero tolerance means zero p2p. The court's ruling means that we as a society must lose the benefits of p2p, even for the totally legal and beneficial uses they serve, simply to assure that there are zero copyright infringements caused by p2p. + +Zero tolerance has not been our history. It has not produced the content industry that we know today. The history of American law has been a process of balance. As new technologies changed the way content was distributed, the law adjusted, after some time, to the new technology. In this adjustment, the law sought to ensure the legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less. + +So, as we've seen, when "mechanical reproduction" threatened the interests of composers, Congress balanced the rights of composers against the interests of the recording industry. It granted rights to composers, but also to the recording artists: Composers were to be paid, but at a price set by Congress. But when radio started broadcasting the recordings made by these recording artists, and they complained to Congress that their "creative property" was not being respected (since the radio station did not have to pay them for the creativity it broadcast), Congress rejected their claim. An indirect benefit was enough. +={artists:recording industry payments to;composers, copyright protections of;Congress, U.S.:on copyright laws+3|on recording industry+1;copyright law:on music recordings+2|statutory licenses in+2;radio:music recordings played on;recording industry:artist remuneration in|copyright protections in|radio broadcast and;statutory licenses|composer's rights vs. producers' rights in} + +Cable TV followed the pattern of record albums. When the courts rejected the claim that cable broadcasters had to pay for the content they rebroadcast, Congress responded by giving broadcasters a right to compensation, but at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the statutory price. +={cable television+1;Congress, U.S.:on cable television+1;copyright law:on cable television rebroadcasting+1;television:cable vs. broadcast+1} + +This compromise, like the compromise affecting records and player pianos, served two important goals - indeed, the two central goals of any copyright legislation. First, the law assured that new innovators would have the freedom to develop new ways to deliver content. Second, the law assured that copyright holders would be paid for the content that was distributed. One fear was that if Congress simply required cable TV to pay copyright holders whatever they demanded for their content, then copyright holders associated with broadcasters would use their power to stifle this new technology, cable. But if Congress had permitted cable to use broadcasters' content for free, then it would have unfairly subsidized cable. Thus Congress chose a path that would assure /{compensation}/ without giving the past (broadcasters) control over the future (cable). +={copyright law:innovative freedom balanced with fair compensation in|two central goals of;innovation:copyright profit balanced with|industry establishment opposed to+7;player pianos} + +In the same year that Congress struck this balance, two major producers and distributors of film content filed a lawsuit against another technology, the video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had produced, the Betamax. Disney's and Universal's claim against Sony was relatively simple: Sony produced a device, Disney and Universal claimed, that enabled consumers to engage in copyright infringement. Because the device that Sony built had a "record" button, the device could be used to record copyrighted movies and shows. Sony was therefore benefiting from the copyright infringement of its customers. It should therefore, Disney and Universal claimed, be partially liable for that infringement. +={Betamax+2;cassette recording:VCRs+2;copyright infringement lawsuits:distribution technology targeted in+12;Disney, Inc.:Sony Betamax technology opposed by+6;film industry:VCR taping facility opposed by+6;Sony:Betamax technology developed by+2;television:VCR taping of+2;VCRs+2;Universal Pictures+8} + +There was something to Disney's and Universal's claim. Sony did decide to design its machine to make it very simple to record television shows. It could have built the machine to block or inhibit any direct copying from a television broadcast. Or possibly, it could have built the machine to copy only if there were a special "copy me" signal on the line. It was clear that there were many television shows that did not grant anyone permission to copy. Indeed, if anyone had asked, no doubt the majority of shows would not have authorized copying. And in the face of this obvious preference, Sony could have designed its system to minimize the opportunity for copyright infringement. It did not, and for that, Disney and Universal wanted to hold it responsible for the architecture it chose. + +MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs "tapeworms." He warned, "When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of 'tapeworms,' eating away at the very heart and essence of the most precious asset the copyright owner has, his copyright."~{ Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture Association of America, Inc.). }~ "One does not have to be trained in sophisticated marketing and creative judgment," he told Congress, "to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense."~{ Copyright Infringements (Audio and Video Recorders), 475. }~ Indeed, as surveys would later show, 45 percent of VCR owners had movie libraries of ten videos or more~{ /{Universal City Studios, Inc. v. Sony Corp. of America,}/ 480 F. Supp. 429, 438 (C.D. Cal., 1979). }~ - a use the Court would later hold was not "fair." By "allowing VCR owners to copy freely by the means of an exemption from copyright infringement without creating a mechanism to compensate copyright owners," Valenti testified, Congress would "take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby profit from its reproduction."~{ Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti). }~ +={Congress, U.S.:on copyright laws+3|on VCR technology;Valenti, Jack:on VCR technology+1} + +It took eight years for this case to be resolved by the Supreme Court. In the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in its jurisdiction - leading Judge Alex Kozinski, who sits on that court, refers to it as the "Hollywood Circuit" - held that Sony would be liable for the copyright infringement made possible by its machines. Under the Ninth Circuit's rule, this totally familiar technology - which Jack Valenti had called "the Boston Strangler of the American film industry" (worse yet, it was a /{Japanese}/ Boston Strangler of the American film industry) - was an illegal technology.~{ /{Universal City Studios, Inc. v. Sony Corp. of America,}/ 659 F. 2d 963 (9th Cir. 1981). }~ +={Court of Appeals:Ninth Circuit;Ninth Circuit Court of Appeals;Supreme Court, U.S.:on VCR technology+3;Kozinski, Alex} + +But the Supreme Court reversed the decision of the Ninth Circuit. And in its reversal, the Court clearly articulated its understanding of when and whether courts should intervene in such disputes. As the Court wrote, +={Supreme Court, U.S.:on balance of interests in copyright law+2} + +_1 Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology."~{ /{Sony Corp. of America v. Universal City Studios, Inc.,}/ 464 U.S. 417, 431 (1984). }~ +={innovative freedom balanced with fair compensation in+12;innovation:copyright profit balanced with+12} + +Congress was asked to respond to the Supreme Court's decision. But as with the plea of recording artists about radio broadcasts, Congress ignored the request. Congress was convinced that American film got enough, this "taking" notwithstanding. +={cassette recording:VCRs+3;Congress, U.S.:on copyright laws+4|on VCR technology+3;VCRs+3} + +If we put these cases together, a pattern is clear: + +table{~h c4; 10; 30; 30; 30; + +CASE +WHOSE VALUE WAS "PIRATED" +RESPONSE OF THE COURTS +RESPONSE OF CONGRESS + +Recordings +Composers +No Protection +Statutory License + +Radio +Recording Artists +N/A +Nothing + +Cable TV +Broadcasters +No Protection +Statutory License + +VCR +Film Creators +No Protection +Nothing + +}table + +In each case throughout our history, a new technology changed the way content was distributed.~{ These are the most important instances in our history, but there are other cases as well. The technology of digital audio tape (DAT), for example, was regulated by Congress to minimize the risk of piracy. The remedy Congress imposed did burden DAT producers, by taxing tape sales and controlling the technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the /{United States Code}/), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not eliminate the opportunity for free riding in the sense I've described. See Lessig, /{Future,}/ 71. See also Picker, "From Edison to the Broadcast Flag," /{University of Chicago Law Review}/ 70 (2003): 293-96. }~ In each case, throughout our history, that change meant that someone got a "free ride" on someone else's work. + +In /{none}/ of these cases did either the courts or Congress eliminate all free riding. In /{none}/ of these cases did the courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright created. In every case, the copyright owners complained of "piracy." In every case, Congress acted to recognize some of the legiti macy in the behavior of the "pirates." In each case, Congress allowed some new technology to benefit from content made before. It balanced the interests at stake. + +When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes sense. Was Walt Disney a pirate? Would doujinshi be better if creators had to ask permission? Should tools that enable others to capture and spread images as a way to cultivate or criticize our culture be better regulated? Is it really right that building a search engine should expose you to $15 million in damages? Would it have been better if Edison had controlled film? Should every cover band have to hire a lawyer to get permission to record a song? +={Disney, Walt;Edison, Thomas} + +We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the Supreme Court has stated, copyright "has never accorded the copyright owner complete control over all possible uses of his work."~{ /{Sony Corp. of America v. Universal City Studios, Inc.,}/ 464 U.S. 417, 432 (1984). }~ Instead, the particular uses that the law regulates have been defined by balancing the good that comes from granting an exclusive right against the burdens such an exclusive right creates. And this balancing has historically been done /{after}/ a technology has matured, or settled into the mix of technologies that facilitate the distribution of content. +={Supreme Court, U.S.:on balance of interests in copyright law} + +We should be doing the same thing today. The technology of the Internet is changing quickly. The way people connect to the Internet (wires vs. wireless) is changing very quickly. No doubt the network should not become a tool for "stealing" from artists. But neither should the law become a tool to entrench one particular way in which artists (or more accurately, distributors) get paid. As I describe in some detail in the last chapter of this book, we should be securing income to artists while we allow the market to secure the most efficient way to promote and distribute content. This will require changes in the law, at least in the interim. These changes should be designed to balance the protection of the law against the strong public interest that innovation continue. + +This is especially true when a new technology enables a vastly superior mode of distribution. And this p2p has done. P2p technologies can be ideally efficient in moving content across a widely diverse network. Left to develop, they could make the network vastly more efficient. Yet these "potential public benefits," as John Schwartz writes in /{The New York Times}/, "could be delayed in the P2P fight."~{ John Schwartz, "New Economy: The Attack on Peer-to-Peer Software Echoes Past Efforts," /{New York Times,}/ 22 September 2003, C3. }~ +={peer-to-peer (p2p) file sharing:benefits of+1;Schwartz, John} + +!_ Yet when anyone +begins to talk about "balance," the copyright warriors raise a different argument. "All this hand waving about balance and incentives," they say, "misses a fundamental point. Our content," the warriors insist, "is our /{property}/. Why should we wait for Congress to 'rebalance' our property rights? Do you have to wait before calling the police when your car has been stolen? And why should Congress deliberate at all about the merits of this theft? Do we ask whether the car thief had a good use for the car before we arrest him?" + +"It is /{our property}/," the warriors insist. "And it should be protected just as any other property is protected." + +:B~ "PROPERTY" + +1~intro_property [Intro]-# + +!_ The copyright warriors +are right: A copyright is a kind of property. It can be owned and sold, and the law protects against its theft. Ordinarily, the copyright owner gets to hold out for any price he wants. Markets reckon the supply and demand that partially determine the price she can get. +={copyright:as property+5;property rights:copyright vs.+5} + +% would have placed index links on heading above, but is an un-numbered heading + +But in ordinary language, to call a copyright a "property" right is a bit misleading, for the property of copyright is an odd kind of property. Indeed, the very idea of property in any idea or any expression is very odd. I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don't have it. But what am I taking when I take the good /{idea}/ you had to put a picnic table in the backyard - by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing I am taking then? + +The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The point instead is that in the ordinary case - indeed, in practically every case except for a narrow range of exceptions - ideas released to the world are free. I don't take anything from you when I copy the way you dress - though I might seem weird if I did it every day, and especially weird if you are a woman. Instead, as Thomas Jefferson said (and as is especially true when I copy the way someone else dresses), - He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."~{ Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in /{The Writings of Thomas Jefferson,}/ vol. 6 (Andrew A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333-34. }~ +={Jefferson, Thomas} + +The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that I won't discuss here. Here the law says you can't take my idea or expression without my permission: The law turns the intangible into property. +={property rights:intangibility of} + +But how, and to what extent, and in what form - the details, in other words - matter. To get a good sense of how this practice of turning the intangible into property emerged, we need to place this "property" in its proper context.~{ As the legal realists taught American law, all property rights are intangible. A property right is simply a right that an individual has against the world to do or not do certain things that may or may not attach to a physical object. The right itself is intangible, even if the object to which it is (metaphorically) attached is tangible. See Adam Mossoff, "What Is Property? Putting the Pieces Back Together," /{Arizona Law Review}/ 45 (2003): 373, 429 n. 241. }~ + +My strategy in doing this will be the same as my strategy in the preceding part. I offer four stories to help put the idea of "copyright material is property" in context. Where did the idea come from? What are its limits? How does it function in practice? After these stories, the significance of this true statement - "copyright material is property" - will be a bit more clear, and its implications will be revealed as quite different from the implications that the copyright warriors would have us draw. + +1~ Chapter Six: Founders +={books:English copyright law developed for+40;copyright law:development of+40|English+40;England, copyright laws developed in+40;United Kingdom:history of copyright law in+40} + +!_ William Shakespeare +wrote /{Romeo and Juliet}/ in 1595. The play was first published in 1597. It was the eleventh major play that Shakespeare had written. He would continue to write plays through 1613, and the plays that he wrote have continued to define Anglo-American culture ever since. So deeply have the works of a sixteenth-century writer seeped into our culture that we often don't even recognize their source. I once overheard someone commenting on Kenneth Branagh's adaptation of Henry V: "I liked it, but Shakespeare is so full of clichés." +={Branagh, Kenneth;Henry V.;Shakespeare, William;Romeo and Juliet (Shakespeare)+2} + +In 1774, almost 180 years after /{Romeo and Juliet}/ was written, the "copy-right" for the work was still thought by many to be the exclusive right of a single London publisher, Jacob Tonson.~{ Jacob Tonson is typically remembered for his associations with prominent eighteenth-century literary figures, especially John Dryden, and for his handsome "definitive editions" of classic works. In addition to /{Romeo and Juliet,}/ he published an astonishing array of works that still remain at the heart of the English canon, including collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson, Bookseller," /{American Scholar}/ 61:3 (1992): 424-31. }~ Tonson was the most prominent of a small group of publishers called the Conger~{ Lyman Ray Patterson, /{Copyright in Historical Perspective}/ (Nashville: Vanderbilt University Press, 1968), 151-52. }~ who controlled bookselling in England during the eighteenth century. The Conger claimed a perpetual right to control the "copy" of books that they had acquired from authors. That perpetual right meant that no one else could publish copies of a book to which they held the copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated. +={Conger;Tonson, Jacob+1} + +Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the history of copyright is 1710, the year that the British Parliament adopted the first "copyright" act. Known as the Statute of Anne, the act stated that all published works would get a copyright term of fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one additional years.~{ As Siva Vaidhyanathan nicely argues, it is erroneous to call this a "copyright law." See Vaidhyanathan, /{Copyrights and Copywrongs,}/ 40. }~ Under this law, /{Romeo and Juliet}/ should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? +={British Parliament;copyright:duration of+1|renewability of;Statute of Anne (1710)} + +The reason is that the English hadn't yet agreed on what a "copyright" was - indeed, no one had. At the time the English passed the Statute of Anne, there was no other legislation governing copyrights. The last law regulating publishers, the Licensing Act of 1662, had expired in 1695. That law gave publishers a monopoly over publishing, as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said that the publishers, or "Stationers," had an exclusive right to print books. +={law:common vs. positive+1;positive law;Licensing Act (1662)} + +There was no /{positive}/ law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to both the words of legislatures and the words of judges to know the rules that are to govern how people are to behave. We call the words from legislatures "positive law." We call the words from judges "common law." The common law sets the background against which legislatures legislate; the legislature, ordinarily, can trump that background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law. +={common law} + +This question was important to the publishers, or "booksellers," as they were called, because there was growing competition from foreign publishers. The Scottish, in particular, were increasingly publishing and exporting books to England. That competition reduced the profits of the Conger, which reacted by demanding that Parliament pass a law to again give them exclusive control over publishing. That demand ultimately resulted in the Statute of Anne. +={Conger;British Parliament+2;Scottish publishers;Statute of Anne (1710)+1} + +The Statute of Anne granted the author or "proprietor" of a book an exclusive right to print that book. In an important limitation, however, and to the horror of the booksellers, the law gave the bookseller that right for a limited term. At the end of that term, the copyright "expired," and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed. +={copyright:as narrow monopoly right+33} + +Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right /{at all?}}/ + +For the booksellers, and the authors whom they represented, had a very strong claim. Take /{Romeo and Juliet}/ as an example: That play was written by Shakespeare. It was his genius that brought it into the world. He didn't take anybody's property when he created this play (that's a controversial claim, but never mind), and by his creating this play, he didn't make it any harder for others to craft a play. So why is it that the law would ever allow someone else to come along and take Shakespeare's play without his, or his estate's, permission? What reason is there to allow someone else to "steal" Shakespeare's work? +={Shakespeare, William;Romeo and Juliet (Shakespeare)} + +The answer comes in two parts. We first need to see something special about the notion of "copyright" that existed at the time of the Statute of Anne. Second, we have to see something important about "booksellers." +={Statute of Anne (1710)} + +First, about copyright. In the last three hundred years, we have come to apply the concept of "copyright" ever more broadly. But in 1710, it wasn't so much a concept as it was a very particular right. The copyright was born as a very specific set of restrictions: It forbade others from reprinting a book. In 1710, the "copy-right" was a right to use a particular machine to replicate a particular work. It did not go beyond that very narrow right. It did not control any more generally how a work could be /{used}/. Today the right includes a large collection of restrictions on the freedom of others: It grants the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on. +={usage restrictions attached to} + +So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the term was that no one could reprint Shakespeare's work without the permission of the Shakespeare estate. It would not have controlled anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be allowed to make his films. The "copy-right" was only an exclusive right to print - no less, of course, but also no more. +={Branagh, Kenneth;Shakespeare, William} + +Even that limited right was viewed with skepticism by the British. They had had a long and ugly experience with "exclusive rights," especially "exclusive rights" granted by the Crown. The English had fought a civil war in part about the Crown's practice of handing out monopolies - especially monopolies for works that already existed. King Henry VIII granted a patent to print the Bible and a monopoly to Darcy to print playing cards. The English Parliament began to fight back against this power of the Crown. In 1656, it passed the Statute of Monopolies, limiting monopolies to patents for new inventions. And by 1710, Parliament was eager to deal with the growing monopoly in publishing. +={Henry VIII, King of England;monopoly, copyright as+27;Statue of Monopolies (1656)} + +Thus the "copy-right," when viewed as a monopoly right, was naturally viewed as a right that should be limited. (However convincing the claim that "it's my property, and I should have it forever," try sounding convincing when uttering, "It's my monopoly, and I should have it forever.") The state would protect the exclusive right, but only so long as it benefited society. The British saw the harms from special-interest favors; they passed a law to stop them. + +Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers. Booksellers sound quaint and harmless to us. They were not viewed as harmless in seventeenth-century England. Members of the Conger were increasingly seen as monopolists of the worst kind - tools of the Crown's repression, selling the liberty of England to guarantee themselves a monopoly profit. The attacks against these monopolists were harsh: Milton described them as "old patentees and monopolizers in the trade of book-selling"; they were "men who do not therefore labour in an honest profession to which learning is indetted."~{ Philip Wittenberg, /{The Protection and Marketing of Literary Property}/ (New York: J. Messner, Inc., 1937), 31. }~ +={Milton, John;booksellers, English+25;Conger;copyright:duration of+25} + +Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment was teaching the importance of education and knowledge spread generally. The idea that knowledge should be free was a hallmark of the time, and these powerful commercial interests were interfering with that idea. +={Enlightenment;knowledge, freedom of} + +To balance this power, Parliament decided to increase competition among booksellers, and the simplest way to do that was to spread the wealth of valuable books. Parliament therefore limited the term of copyrights, and thereby guaranteed that valuable books would become open to any publisher to publish after a limited time. Thus the setting of the term for existing works to just twenty-one years was a compromise to fight the power of the booksellers. The limitation on terms was an indirect way to assure competition among publishers, and thus the construction and spread of culture. +={British Parliament+4} + +When 1731 (1710 + 21) came along, however, the booksellers were getting anxious. They saw the consequences of more competition, and like every competitor, they didn't like them. At first booksellers simply ignored the Statute of Anne, continuing to insist on the perpetual right to control publication. But in 1735 and 1737, they tried to persuade Parliament to extend their terms. Twenty-one years was not enough, they said; they needed more time. +={Statute of Anne (1710)+2;copyright:in perpetuity+2} + +Parliament rejected their requests. As one pamphleteer put it, in words that echo today, + +_1 I see no Reason for granting a further Term now, which will not hold as well for granting it again and again, as often as the Old ones Expire; so that should this Bill pass, it will in Effect be establishing a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to Trade, a Discouragement to Learning, no Benefit to the Authors, but a general Tax on the Publick; and all this only to increase the private Gain of the Booksellers."~{ A Letter to a Member of Parliament concerning the Bill now depending in the House of Commons, for making more effectual an Act in the Eighth Year of the Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et al., 8, /{Eldred v. Ashcroft,}/ 537 U.S. 186 (2003) (No. 01- 618). }~ + +Having failed in Parliament, the publishers turned to the courts in a series of cases. Their argument was simple and direct: The Statute of Anne gave authors certain protections through positive law, but those protections were not intended as replacements for the common law. Instead, they were intended simply to supplement the common law. Under common law, it was already wrong to take another person's creative "property" and use it without his permission. The Statute of Anne, the booksellers argued, didn't change that. Therefore, just because the protections of the Statute of Anne expired, that didn't mean the protections of the common law expired: Under the common law they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors. +={common law;law:common vs. positive;positive law} + +This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary chutzpah. Until then, as law professor Raymond Patterson has put it, "The publishers ... had as much concern for authors as a cattle rancher has for cattle."~{ Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," /{Vanderbilt Law Review}/ 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37-48. }~ The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. + +The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander Donaldson.~{ For a compelling account, see David Saunders, /{Authorship and Copyright}/ (London: Routledge, 1992), 62-69. }~ +={Donaldson, Alexander+3;Patterson, Raymond;Scottish publishers+3} + +Donaldson was an outsider to the London Conger. He began his career in Edinburgh in 1750. The focus of his business was inexpensive reprints "of standard works whose copyright term had expired," at least under the Statute of Anne.~{ Mark Rose, /{Authors and Owners}/ (Cambridge: Harvard University Press, 1993), 92. }~ Donaldson's publishing house prospered and became "something of a center for literary Scotsmen." "[A]mong them," Professor Mark Rose writes, was "the young James Boswell who, together with his friend Andrew Erskine, published an anthology of contemporary Scottish poems with Donaldson."~{ Ibid., 93. }~ +={Statute of Anne (1710)+8;Conger+1;Boswell, James;Erskine, Andrew;Rose, Mark} + +When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold inexpensive editions "of the most popular English books, in defiance of the supposed common law right of Literary Property."~{ Lyman Ray Patterson, /{Copyright in Historical Perspective,}/ 167 (quoting Borwell). }~ His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection. +={common law+3} + +The London booksellers quickly brought suit to block "piracy" like Donaldson's. A number of actions were successful against the "pirates," the most important early victory being /{Millar v. Taylor}/. +={Millar v. Taylor+5} + +Millar was a bookseller who in 1729 had purchased the rights to James Thomson's poem "The Seasons." Millar complied with the requirements of the Statute of Anne, and therefore received the full protection of the statute. After the term of copyright ended, Robert Taylor began printing a competing volume. Millar sued, claiming a perpetual common law right, the Statute of Anne notwithstanding.~{ Howard B. Abrams, "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright," /{Wayne Law Review}/ 29 (1983): 1152. }~ +={Thomson, James+1;copyright:in perpetuity+1;Seasons, The (Thomson);Taylor, Robert} + +Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever protection the Statute of Anne gave booksellers, it did not, he held, extinguish any common law right. The question was whether the common law would protect the author against subsequent "pirates." Mansfield's answer was yes: The common law would bar Taylor from reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them. +={Mansfield, William Murray, Lord+1} + +Considered as a matter of abstract justice - reasoning as if justice were just a matter of logical deduction from first principles - Mansfield's conclusion might make some sense. But what it ignored was the larger issue that Parliament had struggled with in 1710: How best to limit the monopoly power of publishers? Parliament's strategy was to offer a term for existing works that was long enough to buy peace in 1710, but short enough to assure that culture would pass into competition within a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. +={British Parliament+2} + +The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. +={Donaldson, Alexander+5;Scottish publishers+5;Statute of Anne (1710)+2} + +Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included Thomas Beckett. ~{ Ibid., 1156. }~ Donaldson then released an unauthorized edition of Thomson's works. Beckett, on the strength of the decision in /{Millar}/, got an injunction against Donaldson. Donaldson appealed the case to the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before. +={Thomson, James;Becket, Thomas;House of Lords+5;Supreme Court, U.S.:House of Lords vs.+2} + +As few legal cases ever do, /{Donaldson v. Beckett}/ drew an enormous amount of attention throughout Britain. Donaldson's lawyers argued that whatever rights may have existed under the common law, the Statute of Anne terminated those rights. After passage of the Statute of Anne, the only legal protection for an exclusive right to control publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected. +={Donaldson v. Beckett+8;common law+3} + +The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the "law lords," members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted. + +The reports about the law lords' votes are mixed. On some counts, it looks as if perpetual copyright prevailed. But there is no ambiguity about how the House of Lords voted as whole. By a two-to-one majority (22 to 11) they voted to reject the idea of perpetual copyrights. Whatever one's understanding of the common law, now a copyright was fixed for a limited time, after which the work protected by copyright passed into the public domain. +={copyright:in perpetuity+1;public domain:English legal establishment of+1} + +"The public domain." Before the case of /{Donaldson v. Beckett}/, there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual. After 1774, the public domain was born. For the first time in Anglo- American history, the legal control over creative works expired, and the greatest works in English history - including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan - were free of legal restraint. +={Bacon, Francis;Bunyan, John;Johnson, Samuel;Milton, John;Shakespeare, William} + +It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, where most of the "pirate publishers" did their work, people celebrated the decision in the streets. As the /{Edinburgh Advertiser}/ reported, "No private cause has so much engrossed the attention of the public, and none has been tried before the House of Lords in the decision of which so many individuals were interested." "Great rejoicing in Edinburgh upon victory over literary property: bonfires and illuminations."~{ Rose, 97. }~ +={Scottish publishers} + +In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The /{Morning Chronicle}/ reported: + +_1 By the above decision ... near 200,000 pounds worth of what was honestly purchased at public sale, and which was yesterday thought property is now reduced to nothing. The Booksellers of London and Westminster, many of whom sold estates and houses to purchase Copy-right, are in a manner ruined, and those who after many years industry thought they had acquired a competency to provide for their families now find themselves without a shilling to devise to their successors."~{ Ibid. }~ + +"Ruined" is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords meant that the booksellers could no longer control how culture in England would grow and develop. Culture in England was thereafter /{free}/. Not in the sense that copyrights would not be respected, for of course, for a limited time after a work was published, the bookseller had an exclusive right to control the publication of that book. And not in the sense that books could be stolen, for even after a copyright expired, you still had to buy the book from someone. But /{free}/ in the sense that the culture and its growth would no longer be controlled by a small group of publishers. As every free market does, this free market of free culture would grow as the consumers and producers chose. English culture would develop as the many English readers chose to let it develop - chose in the books they bought and wrote; chose in the memes they repeated and endorsed. Chose in a /{competitive context}/, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many. +={House of Lords;free culture:English legal establishment of} + +At least, this was the rule in a world where the Parliament is anti-monopoly, resistant to the protectionist pleas of publishers. In a world where the Parliament is more pliant, free culture would be less protected. +={British Parliament;} + +1~ Chapter Seven: Recorders +={copyright law:fair use and+22;documentary film+22;Else, Jon+22;fair use:in documentary film+22;films:fair use of copyrighted material in+22} + +!_ Jon Else +is a filmmaker. He is best known for his documentaries and has been very successful in spreading his art. He is also a teacher, and as a teacher myself, I envy the loyalty and admiration that his students feel for him. (I met, by accident, two of his students at a dinner party. He was their god.) + +Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today. + +In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. Stage- hands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage. +={Wagner, Richard+1;San Francisco Opera} + +During one of the performances, Else was shooting some stage- hands playing checkers. In one corner of the room was a television set. Playing on the television set, while the stagehands played checkers and the opera company played Wagner, was /{The Simpsons}/. As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene. +={Simpsons, The+16} + +Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of /{The Simpsons}/. For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless "fair use" or some other privilege applies. +={films:multiple copyrights associated with} + +Else called /{Simpsons}/ creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-half-second image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program. +={Gracie Films+1;Groening, Matt+2} + +Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox. +={Fox (film company)+1} + +Then, as Else told me, "two things happened. First we discovered ... that Matt Groening doesn't own his own creation - or at least that someone [at Fox] believes he doesn't own his own creation." And second, Fox "wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of ... entirely unsolicited /{Simpsons}/ which was in the corner of the shot." + +Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He explained to her, "There must be some mistake here. ... We're asking for your educational rate on this." That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told. +={Herrera, Rebecca+1} + +"I wanted to make sure I had my facts straight," he told me. "Yes, you have your facts straight," she said. It would cost $10,000 to use the clip of /{The Simpsons}/ in the corner of a shot in a documentary film about Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And if you quote me, I'll turn you over to our attorneys." As an assistant to Herrera told Else later on, "They don't give a shit. They just want the money." +={Wagner, Richard} + +Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera.To reproduce this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, /{The Day After Trinity}/, from ten years before. +={San Francisco Opera;Day After Trinity, The} + +!_ There's no doubt +that someone, whether Matt Groening or Fox, owns the copyright to /{The Simpsons}/. That copyright is their property. To use that copyrighted material thus sometimes requires the permission of the copyright owner. If the use that Else wanted to make of the /{Simpsons}/ copyright were one of the uses restricted by the law, then he would need to get the permission of the copyright owner before he could use the work in that way. And in a free market, it is the owner of the copyright who gets to set the price for any use that the law says the owner gets to control. +={Fox (film company)+2;Groening, Matt+2} + +For example, "public performance" is a use of /{The Simpsons}/ that the copyright owner gets to control. If you take a selection of favorite episodes, rent a movie theater, and charge for tickets to come see "My Favorite /{Simpsons}/," then you need to get permission from the copyright owner. And the copyright owner (rightly, in my view) can charge whatever she wants - $10 or $1,000,000. That's her right, as set by the law. + +But when lawyers hear this story about Jon Else and Fox, their first thought is "fair use."~{ For an excellent argument that such use is "fair use," but that lawyers don't permit recognition that it is "fair use," see Richard A. Posner with William F. Patry, "Fair Use and Statutory Reform in the Wake of /{Eldred}/" (draft on file with author), University of Chicago Law School, 5 August 2003. }~ Else's use of just 4.5 seconds of an indirect shot of a /{Simpsons}/ episode is clearly a fair use of /{The Simpsons}/ - and fair use does not require the permission of anyone. + +So I asked Else why he didn't just rely upon "fair use." Here's his reply: + +_1 The /{Simpsons}/ fiasco was for me a great lesson in the gulf between what lawyers find irrelevant in some abstract sense, and what is crushingly relevant in practice to those of us actually trying to make and broadcast documentaries. I never had any doubt that it was "clearly fair use" in an absolute legal sense. But I couldn't rely on the concept in any concrete way. Here's why: +={fair use:legal intimidation tactics against+6} + +_1 1. Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed "visual cue sheet" listing the source and licensing status of each shot in the film. They take a dim view of "fair use," and a claim of "fair use" can grind the application process to a halt. +={Errors and Omissions insurance} + +_1 2. I probably never should have asked Matt Groening in the first place. But I knew (at least from folklore) that Fox had a history of tracking down and stopping unlicensed /{Simpsons}/ usage, just as George Lucas had a very high profile litigating /{Star Wars}/ usage. So I decided to play by the book, thinking that we would be granted free or cheap license to four seconds of /{Simpsons}/. As a documentary producer working to exhaustion on a shoestring, the last thing I wanted was to risk legal trouble, even nuisance legal trouble, and even to defend a principle. +={Fox (film company)+1;Groening, Matt;Lucas, George;Star Wars} + +_1 3. I did, in fact, speak with one of your colleagues at Stanford Law School ... who confirmed that it was fair use. He also confirmed that Fox would "depose and litigate you to within an inch of your life," regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them. + +_1 4. The question of fair use usually comes up at the end of the project, when we are up against a release deadline and out of money." + +In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But in practice, fair use functions very differently. The fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight. The law has the right aim; practice has defeated the aim. + +This practice shows just how far the law has come from its eighteenth-century roots. The law was born as a shield to protect publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not. + +1~ Chapter Eight: Transformers +={films:clips and collages of+37} + +!_ In 1993, +Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative company founded by Microsoft cofounder Paul Allen to develop digital entertainment. Long before the Internet became popular, Starwave began investing in new technology for delivering entertainment in anticipation of the power of networks. +={Alben, Alex+27;Allen, Paul;Microsoft;Starwave+7} + +Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology - not to distribute film, but to do things with film that otherwise would be very difficult. In 1993, he launched an initiative to develop a product to build retrospectives on the work of particular actors. The first actor chosen was Clint Eastwood. The idea was to showcase all of the work of Eastwood, with clips from his films and interviews with figures important to his career. +={artists:retrospective collections on+21;CD-ROMs, film clips used in+21;Eastwood, Clint+15} + +At that time, Eastwood had made more than fifty films, as an actor and as a director. Alben began with a series of interviews with Eastwood, asking him about his career. Because Starwave produced those interviews, it was free to include them on the CD. + +That alone would not have made a very interesting product, so Starwave wanted to add content from the movies in Eastwood's career: posters, scripts, and other material relating to the films Eastwood made. Most of his career was spent at Warner Brothers, and so it was relatively easy to get permission for that content. +={permissions:for use of film clips+33;Warner Brothers} + +Then Alben and his team decided to include actual film clips. "Our goal was that we were going to have a clip from every one of East-wood's films," Alben told me. It was here that the problem arose. "No one had ever really done this before," Alben explained. "No one had ever tried to do this in the context of an artistic look at an actor's career." +={films:multiple copyrights associated with+14} + +Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, "Well, what will it take?" +={Slade, Michael+2} + +Alben replied, "Well, we're going to have to clear rights from everyone who appears in these films, and the music and everything else that we want to use in these film clips." Slade said, "Great! Go for it."~{ Technically, the rights that Alben had to clear were mainly those of publicity"rights an artist has to control the commercial exploitation of his image. But these rights, too, burden "Rip, Mix, Burn" creativity, as this chapter evinces. }~ + +The problem was that neither Alben nor Slade had any idea what clearing those rights would mean. Every actor in each of the films could have a claim to royalties for the reuse of that film. But CD-ROMs had not been specified in the contracts for the actors, so there was no clear way to know just what Starwave was to do. + +I asked Alben how he dealt with the problem. With an obvious pride in his resourcefulness that obscured the obvious bizarreness of his tale, Alben recounted just what they did: + +_1 So we very mechanically went about looking up the film clips. We made some artistic decisions about what film clips to include - of course we were going to use the "Make my day" clip from /{Dirty Harry}/. But you then need to get the guy on the ground who's wiggling under the gun and you need to get his permission. And then you have to decide what you are going to pay him. +={Dirty, Harry} + +_1 We decided that it would be fair if we offered them the day-player rate for the right to reuse that performance. We're talking about a clip of less than a minute, but to reuse that performance in the CD-ROM the rate at the time was about $600. + +_1 So we had to identify the people - some of them were hard to identify because in Eastwood movies you can't tell who's the guy crashing through the glass - is it the actor or is it the stuntman? And then we just, we put together a team, my assistant and some others, and we just started calling people." + +Some actors were glad to help - Donald Sutherland, for example, followed up himself to be sure that the rights had been cleared. Others were dumbfounded at their good fortune. Alben would ask, "Hey, can I pay you $600 or maybe if you were in two films, you know, $1,200?" And they would say, "Are you for real? Hey, I'd love to get $1,200." And some of course were a bit difficult (estranged ex-wives, in particular). But eventually, Alben and his team had cleared the rights to this retrospective CD-ROM on Clint Eastwood's career. +={Sutherland, Donald} + +It was one /{year}/ later - " and even then we weren't sure whether we were totally in the clear." + +Alben is proud of his work. The project was the first of its kind and the only time he knew of that a team had undertaken such a massive project for the purpose of releasing a retrospective. + +_1 Everyone thought it would be too hard. Everyone just threw up their hands and said, "Oh, my gosh, a film, it's so many copyrights, there's the music, there's the screenplay, there's the director, there's the actors." But we just broke it down. We just put it into its constituent parts and said, "Okay, there's this many actors, this many directors, ... this many musicians," and we just went at it very systematically and cleared the rights." + +And no doubt, the product itself was exceptionally good. Eastwood loved it, and it sold very well. + +But I pressed Alben about how weird it seems that it would have to take a year's work simply to clear rights. No doubt Alben had done this efficiently, but as Peter Drucker has famously quipped, "There is nothing so useless as doing efficiently that which should not be done at all."~{ U.S. Department of Commerce Office of Acquisition Management, /{Seven Steps to Performance-Based Services Acquisition,}/ available at link #22. }~ Did it make sense, I asked Alben, that this is the way a new work has to be made? +={Drucker, Peter} + +For, as he acknowledged, "very few ... have the time and resources, and the will to do this," and thus, very few such works would ever be made. Does it make sense, I asked him, from the standpoint of what anybody really thought they were ever giving rights for originally, that you would have to go clear rights for these kinds of clips? + +_1 I don't think so. When an actor renders a performance in a movie, he or she gets paid very well. ... And then when 30 seconds of that performance is used in a new product that is a retrospective of somebody's career, I don't think that that person ... should be compensated for that." + +Or at least, is this /{how}/ the artist should be compensated? Would it make sense, I asked, for there to be some kind of statutory license that someone could pay and be free to make derivative use of clips like this? Did it really make sense that a follow-on creator would have to track down every artist, actor, director, musician, and get explicit permission from each? Wouldn't a lot more be created if the legal part of the creative process could be made to be more clean? + +_1 Absolutely. I think that if there were some fair-licensing mechanism - where you weren't subject to hold-ups and you weren't subject to estranged former spouses - you'd see a lot more of this work, because it wouldn't be so daunting to try to put together a retrospective of someone's career and meaningfully illustrate it with lots of media from that person's career. You'd build in a cost as the producer of one of these things. You'd build in a cost of paying X dollars to the talent that performed. But it would be a known cost. That's the thing that trips everybody up and makes this kind of product hard to get off the ground. If you knew I have a hundred minutes of film in this product and it's going to cost me X, then you build your budget around it, and you can get investments and everything else that you need to produce it. But if you say, "Oh, I want a hundred minutes of something and I have no idea what it's going to cost me, and a certain number of people are going to hold me up for money," then it becomes difficult to put one of these things together." + +Alben worked for a big company. His company was backed by some of the richest investors in the world. He therefore had authority and access that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high? + +These costs are the burdens of a kind of regulation. Put on a Republican hat for a moment, and get angry for a bit. The government defines the scope of these rights, and the scope defined determines how much it's going to cost to negotiate them. (Remember the idea that land runs to the heavens, and imagine the pilot purchasing fly- through rights as he negotiates to fly from Los Angeles to San Francisco.) These rights might well have once made sense; but as circumstances change, they make no sense at all. Or at least, a well-trained, regulation-minimizing Republican should look at the rights and ask, "Does this still make sense?" +={Republican Party} + +I've seen the flash of recognition when people get this point, but only a few times. The first was at a conference of federal judges in California. The judges were gathered to discuss the emerging topic of cyber-law. I was asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an L.A. firm, introduced the panel with a video that he and a friend, Robert Fairbank, had produced. +={Saferstein, Harvey;Fairbank, Robert} + +The video was a brilliant collage of film from every period in the twentieth century, all framed around the idea of a /{60 Minutes}/ episode. The execution was perfect, down to the sixty-minute stopwatch. The judges loved every minute of it. +={60 Minutes} + +When the lights came up, I looked over to my copanelist, David Nimmer, perhaps the leading copyright scholar and practitioner in the nation. He had an astonished look on his face, as he peered across the room of over 250 well- entertained judges. Taking an ominous tone, he began his talk with a question: "Do you know how many federal laws were just violated in this room?" +={Nimmer, David+1} + +For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the rights to these clips; technically, what they had done violated the law. Of course, it wasn't as if they or anyone were going to be prosecuted for this violation (the presence of 250 judges and a gaggle of federal marshals notwithstanding). But Nimmer was making an important point: A year before anyone would have heard of the word Napster, and two years before another member of our panel, David Boies, would defend Napster before the Ninth Circuit Court of Appeals, Nimmer was trying to get the judges to see that the law would not be friendly to the capacities that this technology would enable. Technology means you can now do amazing things easily; but you couldn't easily do them legally. +={Alben, Alex;Boies, David;Court of Appeals:Ninth Circuit;Ninth Circuit Court of Appeals;Napster} + +!_ We live in +a "cut and paste" culture enabled by technology. Anyone building a presentation knows the extraordinary freedom that the cut and paste architecture of the Internet created - in a second you can find just about any image you want; in another second, you can have it planted in your presentation. +={technology:cut-and-paste culture enabled by+4} + +But presentations are just a tiny beginning. Using the Internet and its archives, musicians are able to string together mixes of sound never before imagined; filmmakers are able to build movies out of clips on computers around the world. An extraordinary site in Sweden takes images of politicians and blends them with music to create biting political commentary. A site called Camp Chaos has produced some of the most biting criticism of the record industry that there is through the mixing of Flash! and music. +={Camp Chaos} + +All of these creations are technically illegal. Even if the creators wanted to be "legal," the cost of complying with the law is impossibly high. Therefore, for the law-abiding sorts, a wealth of creativity is never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released. + +To some, these stories suggest a solution: Let's alter the mix of rights so that people are free to build upon our culture. Free to add or mix as they see fit. We could even make this change without necessarily requiring that the "free" use be free as in "free beer." Instead, the system could simply make it easy for follow-on creators to compensate artists without requiring an army of lawyers to come along: a rule, for example, that says "the royalty owed the copyright owner of an unregistered work for the derivative reuse of his work will be a flat 1 percent of net revenues, to be held in escrow for the copyright owner." Under this rule, the copyright owner could benefit from some royalty, but he would not have the benefit of a full property right (meaning the right to name his own price) unless he registers the work. +={copyright law:royalty proposal on derivative reuse in;derivative works:royalty system proposed for} + +Who could possibly object to this? And what reason would there be for objecting? We're talking about work that is not now being made; which if made, under this plan, would produce new income for artists. What reason would anyone have to oppose it? + +!_ In February 2003, +DreamWorks studios announced an agreement with Mike Myers, the comic genius of /{Saturday Night Live}/ and Austin Powers. According to the announcement, Myers and DreamWorks would work together to form a "unique filmmaking pact." Under the agreement, DreamWorks "will acquire the rights to existing motion picture hits and classics, write new storylines and - with the use of state- of-the-art digital technology - insert Myers and other actors into the film, thereby creating an entirely new piece of entertainment." +={DreamWorks+2;Myers, Mike+2;Saturday Night Live} + +The announcement called this "film sampling." As Myers explained, "Film Sampling is an exciting way to put an original spin on existing films and allow audiences to see old movies in a new light. Rap artists have been doing this for years with music and now we are able to take that same concept and apply it to film." Steven Spielberg is quoted as saying, "If anyone can create a way to bring old films to new audiences, it is Mike." +={Spielberg, Steven+1;film sampling+3;rap music} + +Spielberg is right. Film sampling by Myers will be brilliant. But if you don't think about it, you might miss the truly astonishing point about this announcement. As the vast majority of our film heritage remains under copyright, the real meaning of the DreamWorks announcement is just this: It is Mike Myers and only Mike Myers who is free to sample. Any general freedom to build upon the film archive of our culture, a freedom in other contexts presumed for us all, is now a privilege reserved for the funny and famous - and presumably rich. + +This privilege becomes reserved for two sorts of reasons. The first continues the story of the last chapter: the vagueness of "fair use." Much of "sampling" should be considered "fair use." But few would rely upon so weak a doctrine to create. That leads to the second reason that the privilege is reserved for the few: The costs of negotiating the legal rights for the creative reuse of content are astronomically high. These costs mirror the costs with fair use: You either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don't have to rely upon fair use rights. Either way, the creative process is a process of paying lawyers - again a privilege, or perhaps a curse, reserved for the few. +={copyright law:fair use and;fair use:in sampling works} + +1~ Chapter Nine: Collectors +={archives, digital+29;culture:archives of+29} + +!_ In April 1996, +millions of "bots" - computer codes designed to "spider," or automatically search the Internet and copy content - began running across the Net. Page by page, these bots copied Internet-based information onto a small set of computers located in a basement in San Francisco's Presidio. Once the bots finished the whole of the Internet, they started again. Over and over again, once every two months, these bits of code took copies of the Internet and stored them. +={bots+1;spider} + +By October 2001, the bots had collected more than five years of copies. And at a small announcement in Berkeley, California, the archive that these copies created, the Internet Archive, was opened to the world. Using a technology called "the Way Back Machine," you could enter a Web page, and see all of its copies going back to 1996, as well as when those pages changed. +={Internet Archive+18;Way Back Machine} + +This is the thing about the Internet that Orwell would have appreciated. In the dystopia described in /{1984}/, old newspapers were constantly updated to assure that the current view of the world, approved of by the government, was not contradicted by previous news reports. Thousands of workers constantly reedited the past, meaning there was no way ever to know whether the story you were reading today was the story that was printed on the date published on the paper. +={Orwell, George+1;1984 (Orwell)} + +It's the same with the Internet. If you go to a Web page today, there's no way for you to know whether the content you are reading is the same as the content you read before. The page may seem the same, but the content could easily be different. The Internet is Orwell's library - constantly updated, without any reliable memory. + +Until the Way Back Machine, at least. With the Way Back Machine, and the Internet Archive underlying it, you can see what the Internet was. You have the power to see what you remember. More importantly, perhaps, you also have the power to find what you don't remember and what others might prefer you forget.~{ The temptations remain, however. Brewster Kahle reports that the White House changes its own press releases without notice. A May 13, 2003, press release stated, "Combat Operations in Iraq Have Ended." That was later changed, without notice, to "Major Combat Operations in Iraq Have Ended." E-mail from Brewster Kahle, 1 December 2003. }~ +={Way Back Machine} + +!_ We take it +for granted that we can go back to see what we remember reading. Think about newspapers. If you wanted to study the reaction of your hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's water cannon in 1963, you could go to your public library and look at the newspapers. Those papers probably exist on microfiche. If you're lucky, they exist in paper, too. Either way, you are free, using a library, to go back and remember - not just what it is convenient to remember, but remember something close to the truth. +={libraries:archival function of+1;newspapers:archives of+2} + +It is said that those who fail to remember history are doomed to repeat it. That's not quite correct. We /{all}/ forget history. The key is whether we have a way to go back to rediscover what we forget. More directly, the key is whether an objective past can keep us honest. Libraries help do that, by collecting content and keeping it, for schoolchildren, for researchers, for grandma. A free society presumes this knowledge. +={history, records of} + +The Internet was an exception to this presumption. Until the Internet Archive, there was no way to go back. The Internet was the quintessentially transitory medium. And yet, as it becomes more important in forming and reforming society, it becomes more and more important to maintain in some historical form. It's just bizarre to think that we have scads of archives of newspapers from tiny towns around the world, yet there is but one copy of the Internet - the one kept by the Internet Archive. + +Brewster Kahle is the founder of the Internet Archive. He was a very successful Internet entrepreneur after he was a successful computer researcher. In the 1990s, Kahle decided he had had enough business success. It was time to become a different kind of success. So he launched a series of projects designed to archive human knowledge. The Internet Archive was just the first of the projects of this Andrew Carnegie of the Internet. By December of 2002, the archive had over 10 billion pages, and it was growing at about a billion pages a month. +={Kahle, Brewster+20} + +The Way Back Machine is the largest archive of human knowledge in human history. At the end of 2002, it held "two hundred and thirty terabytes of material" - and was "ten times larger than the Library of Congress." And this was just the first of the archives that Kahle set out to build. In addition to the Internet Archive, Kahle has been constructing the Television Archive. Television, it turns out, is even more ephemeral than the Internet. While much of twentieth- century culture was constructed through television, only a tiny proportion of that culture is available for anyone to see today. Three hours of news are recorded each evening by Vanderbilt University - thanks to a specific exemption in the copyright law.That content is indexed, and is available to scholars for a very low fee. "But other than that, [television] is almost unavailable," Kahle told me. "If you were Barbara Walters you could get access to [the archives], but if you are just a graduate student?" As Kahle put it, +={Library of Congress;Television Archive;Vanderbuilt University;Way Back Machine;libraries:archival function of;news coverage+6} + +_1 Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician interacting with a fictional television character? If you were a graduate student wanting to study that, and you wanted to get those original back and forth exchanges between the two, the /{60 Minutes}/ episode that came out after it ... it would be almost impossible. ... Those materials are almost unfindable. ..." +={Quayle, Dan;60 Minutes} + +Why is that? Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is recorded on videotape is not? How is it that we've created a world where researchers trying to understand the effect of media on nineteenth-century America will have an easier time than researchers trying to understand the effect of media on twentieth-century America? +={newspapers:archives of} + +In part, this is because of the law. Early in American copyright law, copyright owners were required to deposit copies of their work in libraries. These copies were intended both to facilitate the spread of knowledge and to assure that a copy of the work would be around once the copyright expired, so that others might access and copy the work. +={libraries:archival function of+2} + +These rules applied to film as well. But in 1915, the Library of Congress made an exception for film. Film could be copyrighted so long as such deposits were made. But the filmmaker was then allowed to borrow back the deposits - for an unlimited time at no cost. In 1915 alone, there were more than 5,475 films deposited and "borrowed back." Thus, when the copyrights to films expire, there is no copy held by any library. The copy exists - if it exists at all - in the library archive of the film company.~{ Doug Herrick, "Toward a National Film Collection: Motion Pictures at the Library of Congress," /{Film Library Quarterly}/ 13 nos. 2-3 (1980): 5; Anthony Slide, /{Nitrate Won't Wait: A History of Film Preservation in the United States}/ (Jefferson, N.C.: McFarland & Co., 1992), 36. }~ +={Library of Congress;films:archive of} + +The same is generally true about television. Television broadcasts were originally not copyrighted - there was no way to capture the broadcasts, so there was no fear of "theft." But as technology enabled capturing, broadcasters relied increasingly upon the law. The law required they make a copy of each broadcast for the work to be "copy-righted." But those copies were simply kept by the broadcasters. No library had any right to them; the government didn't demand them. The content of this part of American culture is practically invisible to anyone who would look. +={Television Archive+1} + +Kahle was eager to correct this. Before September 11, 2001, he and his allies had started capturing television. They selected twenty stations from around the world and hit the Record button. After September 11, Kahle, working with dozens of others, selected twenty stations from around the world and, beginning October 11, 2001, made their coverage during the week of September 11 available free on- line. Anyone could see how news reports from around the world covered the events of that day. +={September 11, 2001, terrorist attacks of} + +Kahle had the same idea with film. Working with Rick Prelinger, whose archive of film includes close to 45,000 "ephemeral films" (meaning films other than Hollywood movies, films that were never copyrighted), Kahle established the Movie Archive. Prelinger let Kahle digitize 1,300 films in this archive and post those films on the Internet to be downloaded for free. Prelinger's is a for- profit company. It sells copies of these films as stock footage. What he has discovered is that after he made a significant chunk available for free, his stock footage sales went up dramatically. People could easily find the material they wanted to use. Some downloaded that material and made films on their own. Others purchased copies to enable other films to be made. Either way, the archive enabled access to this important part of our culture. Want to see a copy of the "Duck and Cover" film that instructed children how to save themselves in the middle of nuclear attack? Go to archive.org, and you can download the film in a few minutes - for free. +={films:archive of;archive.org:see also Internet Archive;Internet Archive;Movie Archive;Duck and Cover film;ephemeral films;Prelinger, Rick} + +Here again, Kahle is providing access to a part of our culture that we otherwise could not get easily, if at all. It is yet another part of what defines the twentieth century that we have lost to history. The law doesn't require these copies to be kept by anyone, or to be deposited in an archive by anyone. Therefore, there is no simple way to find them. + +The key here is access, not price. Kahle wants to enable free access to this content, but he also wants to enable others to sell access to it. His aim is to ensure competition in access to this important part of our culture. Not during the commercial life of a bit of creative property, but during a second life that all creative property has - a noncommercial life. +={creative property:noncommercial second life of+4} + +For here is an idea that we should more clearly recognize. Every bit of creative property goes through different "lives." In its first life, if the creator is lucky, the content is sold. In such cases the commercial market is successful for the creator. The vast majority of creative property doesn't enjoy such success, but some clearly does. For that content, commercial life is extremely important. Without this commercial market, there would be, many argue, much less creativity. + +After the commercial life of creative property has ended, our tradition has always supported a second life as well. A newspaper delivers the news every day to the doorsteps of America. The very next day, it is used to wrap fish or to fill boxes with fragile gifts or to build an archive of knowledge about our history. In this second life, the content can continue to inform even if that information is no longer sold. + +The same has always been true about books. A book goes out of print very quickly (the average today is after about a year~{ Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business," /{Chicago Tribune,}/ 5 September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, "The First Sale Doctrine in the Era of Digital Networks," /{Boston College Law Review}/ 44 (2003): 593 n. 51. }~). After it is out of print, it can be sold in used book stores without the copyright owner getting anything and stored in libraries, where many get to read the book, also for free. Used book stores and libraries are thus the second life of a book. That second life is extremely important to the spread and stability of culture. +={libraries:archival function of+1;books:out of print} + +Yet increasingly, any assumption about a stable second life for creative property does not hold true with the most important components of popular culture in the twentieth and twenty-first centuries. For these - television, movies, music, radio, the Internet - there is no guarantee of a second life. For these sorts of culture, it is as if we've replaced libraries with Barnes & Noble superstores. With this culture, what's accessible is nothing but what a certain limited market demands. Beyond that, culture disappears. + +!_ For most of +the twentieth century, it was economics that made this so. It would have been insanely expensive to collect and make accessible all television and film and music: The cost of analog copies is extraordinarily high. So even though the law in principle would have restricted the ability of a Brewster Kahle to copy culture generally, the real restriction was economics. The market made it impossibly difficult to do anything about this ephemeral culture; the law had little practical effect. +={technology:archival opportunity offered through+3} + +Perhaps the single most important feature of the digital revolution is that for the first time since the Library of Alexandria, it is feasible to imagine constructing archives that hold all culture produced or distributed publicly. Technology makes it possible to imagine an archive of all books published, and increasingly makes it possible to imagine an archive of all moving images and sound. +={libraries:archival function of+4} + +The scale of this potential archive is something we've never imagined before. The Brewster Kahles of our history have dreamed about it; but we are for the first time at a point where that dream is possible. As Kahle describes, + +_1 It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of movies, ... and about one to two million movies [distributed] during the twentieth century. There are about twenty-six million different titles of books. All of these would fit on computers that would fit in this room and be able to be afforded by a small company. So we're at a turning point in our history. Universal access is the goal. And the opportunity of leading a different life, based on this, is ... thrilling. It could be one of the things humankind would be most proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press." +={books:total number of;films:total number of;music recordings:total number of} + +Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of libraries or archives could be. /{When}/ the commercial life of creative property ends, I don't know. But it does. And whenever it does, Kahle and his archive hint at a world where this knowledge, and culture, remains perpetually available. Some will draw upon it to understand it; some to criticize it. Some will use it, as Walt Disney did, to re-create the past for the future. These technologies promise something that had become unimaginable for much of our past - a future /{for}/ our past. The technology of digital arts could make the dream of the Library of Alexandria real again. +={Internet Archive;creative property:noncommercial second life of;Disney, Walt;technology:archival opportunity offered through+1} + +Technologists have thus removed the economic costs of building such an archive. But lawyers' costs remain. For as much as we might like to call these "archives," as warm as the idea of a "library" might seem, the "content" that is collected in these digital spaces is also some-one's "property." And the law of property restricts the freedoms that Kahle and others would exercise. + +1~ Chapter Ten: "Property" + +!_ Jack Valenti +has been the president of the Motion Picture Association of America since 1966. He first came to Washington, D.C., with Lyndon Johnson's administration - literally. The famous picture of Johnson's swearing-in on Air Force One after the assassination of President Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. +={Johnson, Lyndon;Kennedy, John F.;Motion Picture Association of America (MPAA)+3;film industry:trade association of+3;television:industry association of+3;Valenti, Jack:background of} + +The MPAA is the American branch of the international Motion Picture Association. It was formed in 1922 as a trade association whose goal was to defend American movies against increasing domestic criticism. The organization now represents not only filmmakers but producers and distributors of entertainment for television, video, and cable. Its board is made up of the chairmen and presidents of the seven major producers and distributors of motion picture and television programs in the United States: Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, Universal Studios, and Warner Brothers. +={Disney, Inc.;MGM;Paramount Pictures;Twentieth Century Fox;Sony Pictures Entertainment;Universal Pictures;Warner Brothers} + +Valenti is only the third president of the MPAA. No president before him has had as much influence over that organization, or over Washington. As a Texan, Valenti has mastered the single most important political skill of a Southerner - the ability to appear simple and slow while hiding a lightning-fast intellect. To this day, Valenti plays the simple, humble man. But this Harvard MBA, and author of four books, who finished high school at the age of fifteen and flew more than fifty combat missions in World War II, is no Mr. Smith. When Valenti went to Washington, he mastered the city in a quintessentially Washingtonian way. +={Valenti, Jack:background of+5} + +In defending artistic liberty and the freedom of speech that our culture depends upon, the MPAA has done important good. In crafting the MPAA rating system, it has probably avoided a great deal of speech-regulating harm. But there is an aspect to the organization's mission that is both the most radical and the most important. This is the organization's effort, epitomized in Valenti's every act, to redefine the meaning of "creative property." +={film industry:rating system of;speech, freedom of:film-rating system vs.} + +In 1982, Valenti's testimony to Congress captured the strategy perfectly: +={Valenti, Jack:on creative property rights+11} + +_1 No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: /{Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation}/. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest."~{ Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary of the House of Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti). }~ +={creative property:other property rights vs.+25} + +The strategy of this rhetoric, like the strategy of most of Valenti's rhetoric, is brilliant and simple and brilliant because simple. The "central theme" to which "reasonable men and women" will return is this: "Creative property owners must be accorded the same rights and protections resident in all other property owners in the nation." There are no second-class citizens, Valenti might have continued. There should be no second-class property owners. + +This claim has an obvious and powerful intuitive pull. It is stated with such clarity as to make the idea as obvious as the notion that we use elections to pick presidents. But in fact, there is no more extreme a claim made by /{anyone}/ who is serious in this debate than this claim of Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps the nation's foremost extremist when it comes to the nature and scope of "creative property." His views have /{no}/ reasonable connection to our actual legal tradition, even if the subtle pull of his Texan charm has slowly redefined that tradition, at least in Washington. +={creative property:constitutional tradition on+9} + +While "creative property" is certainly "property" in a nerdy and precise sense that lawyers are trained to understand,~{ Lawyers speak of "property" not as an absolute thing, but as a bundle of rights that are sometimes associated with a particular object. Thus, my "property right" to my car gives me the right to exclusive use, but not the right to drive at 150 miles an hour. For the best effort to connect the ordinary meaning of "property" to "lawyer talk," see Bruce Ackerman, /{Private Property and the Constitution}/ (New Haven: Yale University Press, 1977), 26-27. }~ it has never been the case, nor should it be, that "creative property owners" have been "ac- corded the same rights and protection resident in all other property owners." Indeed, if creative property owners were given the same rights as all other property owners, that would effect a radical, and radically undesirable, change in our tradition. + +Valenti knows this. But he speaks for an industry that cares squat for our tradition and the values it represents. He speaks for an industry that is instead fighting to restore the tradition that the British overturned in 1710. In the world that Valenti's changes would create, a powerful few would exercise powerful control over how our creative culture would develop. + +I have two purposes in this chapter. The first is to convince you that, historically, Valenti's claim is absolutely wrong. The second is to convince you that it would be terribly wrong for us to reject our history. We have always treated rights in creative property differently from the rights resident in all other property owners. They have never been the same. And they should never be the same, because, however counterintuitive this may seem, to make them the same would be to fundamentally weaken the opportunity for new creators to create. Creativity depends upon the owners of creativity having less than perfect control. + +Organizations such as the MPAA, whose board includes the most powerful of the old guard, have little interest, their rhetoric notwithstanding, in assuring that the new can displace them. No organization does. No person does. (Ask me about tenure, for example.) But what's good for the MPAA is not necessarily good for America. A society that defends the ideals of free culture must preserve precisely the opportunity for new creativity to threaten the old. +={Motion Picture Association of America (MPAA);film industry:trade association of} + +!_ To get +just a hint that there is something fundamentally wrong in Valenti's argument, we need look no further than the United States Constitution itself. +={Constitution, U.S.:on creative property+4} + +The framers of our Constitution loved "property." Indeed, so strongly did they love property that they built into the Constitution an important requirement. If the government takes your property - if it condemns your house, or acquires a slice of land from your farm - it is required, under the Fifth Amendment's "Takings Clause," to pay you "just compensation" for that taking. The Constitution thus guarantees that property is, in a certain sense, sacred. It cannot /{ever}/ be taken from the property owner unless the government pays for the privilege. +={Constitution, U.S.:Fifth Amendment to|Takings Clause of+1;Fifth Amendment;Takings Clause+1;property rights:Takings Clause on+1} + +Yet the very same Constitution speaks very differently about what Valenti calls "creative property." In the clause granting Congress the power to create "creative property," the Constitution /{requires}/ that after a "limited time," Congress take back the rights that it has granted and set the "creative property" free to the public domain. Yet when Congress does this, when the expiration of a copyright term "takes" your copyright and turns it over to the public domain, Congress does not have any obligation to pay "just compensation" for this "taking." Instead, the same Constitution that requires compensation for your land requires that you lose your "creative property" right without any compensation at all. + +The Constitution thus on its face states that these two forms of property are not to be accorded the same rights. They are plainly to be treated differently. Valenti is therefore not just asking for a change in our tradition when he argues that creative-property owners should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself. + +Arguing for a change in our Constitution is not necessarily wrong. There was much in our original Constitution that was plainly wrong. The Constitution of 1789 entrenched slavery; it left senators to be appointed rather than elected; it made it possible for the electoral college to produce a tie between the president and his own vice president (as it did in 1800). The framers were no doubt extraordinary, but I would be the first to admit that they made big mistakes. We have since rejected some of those mistakes; no doubt there could be others that we should reject as well. So my argument is not simply that because Jefferson did it, we should, too. +={Jefferson, Thomas+1;copyright law:innovative freedom balanced with fair compensation in+2;electoral college;Senate, U.S.;slavery} + +Instead, my argument is that because Jefferson did it, we should at least try to understand /{why}/. Why did the framers, fanatical property types that they were, reject the claim that creative property be given the same rights as all other property? Why did they require that for creative property there must be a public domain? + +To answer this question, we need to get some perspective on the history of these "creative property" rights, and the control that they enabled. Once we see clearly how differently these rights have been defined, we will be in a better position to ask the question that should be at the core of this war: Not /{whether}/ creative property should be protected, but how. Not /{whether}/ we will enforce the rights the law gives to creative-property owners, but what the particular mix of rights ought to be. Not /{whether}/ artists should be paid, but whether institutions designed to assure that artists get paid need also control how culture develops. + +To answer these questions, we need a more general way to talk about how property is protected. More precisely, we need a more general way than the narrow language of the law allows. In /{Code and Other Laws of Cyberspace}/, I used a simple model to capture this more general perspective. For any particular right or regulation, this model asks how four different modalities of regulation interact to support or weaken the right or regulation. I represented it with this diagram: +={Code (Lessig);Lessig, Lawrence;free culture:four modalities of constraint on+20;regulation:four modalities of+20;copyright law:as ex post regulation modality+5;law:as constraint modality+5} + +{freeculture01.png 350x350 }http://www.free-culture.cc/ + +At the center of this picture is a regulated dot: the individual or group that is the target of regulation, or the holder of a right. (In each case throughout, we can describe this either as regulation or as a right. For simplicity's sake, I will speak only of regulations.) The ovals represent four ways in which the individual or group might be regulated - either constrained or, alternatively, enabled. Law is the most obvious constraint (to lawyers, at least). It constrains by threatening punishments after the fact if the rules set in advance are violated. So if, for example, you willfully infringe Madonna's copyright by copying a song from her latest CD and posting it on the Web, you can be punished with a $150,000 fine. The fine is an ex post punishment for violating an ex ante rule. It is imposed by the state. +={Madonna} + +Norms are a different kind of constraint. They, too, punish an individual for violating a rule. But the punishment of a norm is imposed by a community, not (or not only) by the state. There may be no law against spitting, but that doesn't mean you won't be punished if you spit on the ground while standing in line at a movie. The punishment might not be harsh, though depending upon the community, it could easily be more harsh than many of the punishments imposed by the state. The mark of the difference is not the severity of the rule, but the source of the enforcement. +={norms, regulatory influence of+1} + +The market is a third type of constraint. Its constraint is effected through conditions: You can do X if you pay Y; you'll be paid M if you do N. These constraints are obviously not independent of law or norms - it is property law that defines what must be bought if it is to be taken legally; it is norms that say what is appropriately sold. But given a set of norms, and a background of property and contract law, the market imposes a simultaneous constraint upon how an individual or group might behave. +={market constraints+1} + +Finally, and for the moment, perhaps, most mysteriously, "architecture" - the physical world as one finds it - is a constraint on behavior. A fallen bridge might constrain your ability to get across a river. Railroad tracks might constrain the ability of a community to integrate its social life. As with the market, architecture does not effect its constraint through ex post punishments. Instead, also as with the market, architecture effects its constraint through simultaneous conditions. These conditions are imposed not by courts enforcing contracts, or by police punishing theft, but by nature, by "architecture." If a 500-pound boulder blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint. +={architecture, constraint effected through} + +So the first point about these four modalities of regulation is obvious: They interact. Restrictions imposed by one might be reinforced by another. Or restrictions imposed by one might be undermined by another. +={law:as constraint modality+5} + +The second point follows directly: If we want to understand the effective freedom that anyone has at a given moment to do any particular thing, we have to consider how these four modalities interact. Whether or not there are other constraints (there may well be; my claim is not about comprehensiveness), these four are among the most significant, and any regulator (whether controlling or freeing) must consider how these four in particular interact. + +So, for example, consider the "freedom" to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that say how fast you can drive in particular places at particular times. It is in part restricted by architecture: speed bumps, for example, slow most rational drivers; governors in buses, as another example, set the maximum rate at which the driver can drive. The freedom is in part restricted by the market: Fuel efficiency drops as speed increases, thus the price of gasoline indirectly constrains speed. And finally, the norms of a community may or may not constrain the freedom to speed. Drive at 50 mph by a school in your own neighborhood and you're likely to be punished by the neighbors. The same norm wouldn't be as effective in a different town, or at night. +={architecture, constraint effected through;market constraints;norms, regulatory influence of;driving speed, constraints on+1;speeding, constraints on+1} + +The final point about this simple model should also be fairly clear: While these four modalities are analytically independent, law has a special role in affecting the three.~{ By describing the way law affects the other three modalities, I don't mean to suggest that the other three don't affect law. Obviously, they do. Law's only distinction is that it alone speaks as if it has a right self-consciously to change the other three. The right of the other three is more timidly expressed. See Lawrence Lessig, /{Code: And Other Laws of Cyberspace}/ (New York: Basic Books, 1999): 90-95; Lawrence Lessig, "The New Chicago School," /{Journal of Legal Studies,}/ June 1998. }~ The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality. Thus, the law might be used to increase taxes on gasoline, so as to increase the incentives to drive more slowly. The law might be used to mandate more speed bumps, so as to increase the difficulty of driving rapidly. The law might be used to fund ads that stigmatize reckless driving. Or the law might be used to require that other laws be more strict - a federal requirement that states decrease the speed limit, for example" so as to decrease the attractiveness of fast driving. + +{freeculture02.png 540x350 }http://www.free-culture.cc/ + +These constraints can thus change, and they can be changed. To understand the effective protection of liberty or protection of property at any particular moment, we must track these changes over time. A restriction imposed by one modality might be erased by another. A freedom enabled by one modality might be displaced by another.~{ Some people object to this way of talking about "liberty." They object because their focus when considering the constraints that exist at any particular moment are constraints imposed exclusively by the government. For instance, if a storm destroys a bridge, these people think it is meaningless to say that one's liberty has been restrained. A bridge has washed out, and it's harder to get from one place to another. To talk about this as a loss of freedom, they say, is to confuse the stuff of politics with the vagaries of ordinary life. I don't mean to deny the value in this narrower view, which depends upon the context of the inquiry. I do, however, mean to argue against any insistence that this narrower view is the only proper view of liberty. As I argued in /{Code,}/ we come from a long tradition of political thought with a broader focus than the narrow question of what the government did when. John Stuart Mill defended freedom of speech, for example, from the tyranny of narrow minds, not from the fear of government prosecution; John Stuart Mill, /{On Liberty}/ (Indiana: Hackett Publishing Co., 1978), 19. John R. Commons famously defended the economic freedom of labor from constraints imposed by the market; John R. Commons, "The Right to Work," in Malcom Rutherford and Warren J. Samuels, eds., /{John R. Commons: Selected Essays}/ (London: Routledge: 1997), 62. The Americans with Disabilities Act increases the liberty of people with physical disabilities by changing the architecture of certain public places, thereby making access to those places easier; 42 /{United States Code}/, section 12101 (2000). Each of these interventions to change existing conditions changes the liberty of a particular group. The effect of those interventions should be accounted for in order to understand the effective liberty that each of these groups might face. }~ + +2~ Why Hollywood Is Right + +The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress and the courts to defend copyright. This model helps us see why that rallying makes sense. +={copyright:four regulatory modalities on+8} + +Let's say this is the picture of copyright's regulation before the Internet: + +{freeculture01.png 350x350 }http://www.free-culture.cc/ + +There is balance between law, norms, market, and architecture. The law limits the ability to copy and share content, by imposing penalties on those who copy and share content. Those penalties are reinforced by technologies that make it hard to copy and share content (architecture) and expensive to copy and share content (market). Finally, those penalties are mitigated by norms we all recognize - kids, for example, taping other kids' records. These uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement. +={architecture, constraint effected through+1;law:as constraint modality;norms, regulatory influence of+1} + +Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The happy balance (for the warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet. +={Internet:copyright regulatory balance lost with+4;peer-to-peer (p2p) file sharing:regulatory balance lost in;market constraints;MP3s} + +Thus the sense of, and justification for, the warriors' response. Technology has changed, the warriors say, and the effect of this change, when ramified through the market and norms, is that a balance of protection for the copyright owners' rights has been lost. This is Iraq after the fall of Saddam, but this time no government is justifying the looting that results. +={technology:established industries threatened by changes in} + +{freeculture03.png 350x350 }http://www.free-culture.cc/ + +Neither this analysis nor the conclusions that follow are new to the warriors. Indeed, in a "White Paper" prepared by the Commerce Department (one heavily influenced by the copyright warriors) in 1995, this mix of regulatory modalities had already been identified and the strategy to respond already mapped. In response to the changes the Internet had effected, the White Paper argued (1) Congress should strengthen intellectual property law, (2) businesses should adopt innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright. +={Commerce, U.S. Department of;regulation:as establishment protectionism+6} + +This mixed strategy is just what copyright needed - if it was to preserve the particular balance that existed before the change induced by the Internet. And it's just what we should expect the content industry to push for. It is as American as apple pie to consider the happy life you have as an entitlement, and to look to the law to protect it if something comes along to change that happy life. Homeowners living in a flood plain have no hesitation appealing to the government to rebuild (and rebuild again) when a flood (architecture) wipes away their property (law). Farmers have no hesitation appealing to the government to bail them out when a virus (architecture) devastates their crop. Unions have no hesitation appealing to the government to bail them out when imports (market) wipe out the U.S. steel industry. +={farming;steel industry} + +Thus, there's nothing wrong or surprising in the content industry's campaign to protect itself from the harmful consequences of a technological innovation. And I would be the last person to argue that the changing technology of the Internet has not had a profound effect on the content industry's way of doing business, or as John Seely Brown describes it, its "architecture of revenue." +={Brown, John Seely} + +But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because technology has weakened a particular way of doing business, it doesn't follow that the government should intervene to support that old way of doing business. Kodak, for example, has lost perhaps as much as 20 percent of their traditional film market to the emerging technologies of digital cameras.~{ See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?" BusinessWeek online, 2 August 1999, available at link #23. For a more recent analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003, available at link #24. }~ Does anyone believe the government should ban digital cameras just to support Kodak? Highways have weakened the freight business for railroads. Does anyone think we should ban trucks from roads /{for the purpose of}/ protecting the railroads? Closer to the subject of this book, remote channel changers have weakened the "stickiness" of television advertising (if a boring commercial comes on the TV, the remote makes it easy to surf ), and it may well be that this change has weakened the television advertising market. But does anyone believe we should regulate remotes to reinforce commercial television? (Maybe by limiting them to function only once a second, or to switch to only ten channels within an hour?) +={advertising;television:advertising on;commercials;camera technology;digital cameras;Kodak cameras;railroad industry;remote channel changers} + +The obvious answer to these obviously rhetorical questions is no. In a free society, with a free market, supported by free enterprise and free trade, the government's role is not to support one way of doing business against others. Its role is not to pick winners and protect them against loss. If the government did this generally, then we would never have any progress. As Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software patents, "established companies have an interest in excluding future competitors."~{ Fred Warshofsky, /{The Patent Wars}/ (New York: Wiley, 1994), 170-71. }~ And relative to a startup, established companies also have the means. (Think RCA and FM radio.) A world in which competitors with new ideas must fight not only the market but also the government is a world in which competitors with new ideas will not succeed. It is a world of stasis and increasingly concentrated stagnation. It is the Soviet Union under Brezhnev. +={free market, technological changes in+2;Brezhnev, Leonid;FM radio;radio:FM spectrum of;Gates, Bill;market competition;RCA} + +Thus, while it is understandable for industries threatened with new technologies that change the way they do business to look to the government for protection, it is the special duty of policy makers to guarantee that that protection not become a deterrent to progress. It is the duty of policy makers, in other words, to assure that the changes they create, in response to the request of those hurt by changing technology, are changes that preserve the incentives and opportunities for innovation and change. + +In the context of laws regulating speech - which include, obviously, copyright law - that duty is even stronger. When the industry complaining about changing technologies is asking Congress to respond in a way that burdens speech and creativity, policy makers should be especially wary of the request. It is always a bad deal for the government to get into the business of regulating speech markets. The risks and dangers of that game are precisely why our framers created the First Amendment to our Constitution: "Congress shall make no law ... abridging the freedom of speech." So when Congress is being asked to pass laws that would "abridge" the freedom of speech, it should ask" carefully - whether such regulation is justified. +={Constitution, U.S.:First Amendment to;First Amendment;speech, freedom of:constitutional guarantee of} + +My argument just now, however, has nothing to do with whether the changes that are being pushed by the copyright warriors are "justified." My argument is about their effect. For before we get to the question of justification, a hard question that depends a great deal upon your values, we should first ask whether we understand the effect of the changes the content industry wants. + +Here's the metaphor that will capture the argument to follow. + +In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul Hermann Müller won the Nobel Prize for his work demonstrating the insecticidal properties of DDT. By the 1950s, the insecticide was widely used around the world to kill disease-carrying pests. It was also used to increase farm production. +={Müller, Paul Hermann+3;DDT+6;insecticide, environmental consequences of+6;farming+4} + +No one doubts that killing disease-carrying pests or increasing crop production is a good thing. No one doubts that the work of Müller was important and valuable and probably saved lives, possibly millions. + +But in 1962, Rachel Carson published /{Silent Spring}/, which argued that DDT, whatever its primary benefits, was also having unintended environmental consequences. Birds were losing the ability to reproduce. Whole chains of the ecology were being destroyed. +={Carson, Rachel;Silent Spring (Carson);environmentalism+4} + +No one set out to destroy the environment. Paul Müller certainly did not aim to harm any birds. But the effort to solve one set of problems produced another set which, in the view of some, was far worse than the problems that were originally attacked. Or more accurately, the problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve. + +It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an "environmentalism" for culture.~{ See, for example, James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?" /{Duke Law Journal}/ 47 (1997): 87. }~ His point, and the point I want to develop in the balance of this chapter, is not that the aims of copyright are flawed. Or that authors should not be paid for their work. Or that music should be given away "for free." The point is that some of the ways in which we might protect authors will have unintended consequences for the cultural environment, much like DDT had for the natural environment. And just as criticism of DDT is not an endorsement of malaria or an attack on farmers, so, too, is criticism of one particular set of regulations protecting copyright not an endorsement of anarchy or an attack on authors. It is an environment of creativity that we seek, and we should be aware of our actions' effects on the environment. +={Boyle, James;copyright law:innovative freedom balanced with fair compensation in+1} + +My argument, in the balance of this chapter, tries to map exactly this effect. No doubt the technology of the Internet has had a dramatic effect on the ability of copyright owners to protect their content. But there should also be little doubt that when you add together the changes in copyright law over time, plus the change in technology that the Internet is undergoing just now, the net effect of these changes will not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity. + +In a line: To kill a gnat, we are spraying DDT with consequences for free culture that will be far more devastating than that this gnat will be lost. + +2~ Beginnings + +America copied English copyright law. Actually, we copied and improved English copyright law. Our Constitution makes the purpose of "creative property" rights clear; its express limitations reinforce the English aim to avoid overly powerful publishers. +={Constitution, U.S.:on creative property|copyright purpose established in+6|Progress Clause of+5;copyright:constitutional purpose of|duration of;creative property:constitutional tradition on+6;Progress Clause+5;copyright:duration of} + +The power to establish "creative property" rights is granted to Congress in a way that, for our Constitution, at least, is very odd. Article I, section 8, clause 8 of our Constitution states that: +={Congress, U.S.:in constitutional Progress Clause+2} + +_1 Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." + +We can call this the "Progress Clause," for notice what this clause does not say. It does not say Congress has the power to grant "creative property rights." It says that Congress has the power /{to promote progress}/. The grant of power is its purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors. + +The Progress Clause expressly limits the term of copyrights. As we saw in chapter 6, the English limited the term of copyright so as to assure that a few would not exercise disproportionate control over culture by exercising disproportionate control over publishing. We can assume the framers followed the English for a similar purpose. Indeed, unlike the English, the framers reinforced that objective, by requiring that copyrights extend "to Authors" only. +={copyright law:as protection of creators+2|history of American+22} + +The design of the Progress Clause reflects something about the Constitution's design in general. To avoid a problem, the framers built structure. To prevent the concentrated power of publishers, they built a structure that kept copyrights away from publishers and kept them short. To prevent the concentrated power of a church, they banned the federal government from establishing a church. To prevent concentrating power in the federal government, they built structures to reinforce the power of the states - including the Senate, whose members were at the time selected by the states, and an electoral college, also selected by the states, to select the president. In each case, a /{structure}/ built checks and balances into the constitutional frame, structured to prevent otherwise inevitable concentrations of power. +={Senate, U.S.;Constitution, U.S.:structural checks and balances of;electoral college} + +I doubt the framers would recognize the regulation we call "copyright" today. The scope of that regulation is far beyond anything they ever considered. To begin to understand what they did, we need to put our "copyright" in context: We need to see how it has changed in the 210 years since they first struck its design. + +Some of these changes come from the law: some in light of changes in technology, and some in light of changes in technology given a particular concentration of market power. In terms of our model, we started here: +={copyright:four regulatory modalities on} + +{freeculture01.png 350x350 }http://www.free-culture.cc/ + +%% image 05 same as 01, renumber? + +We will end here: + +{freeculture04.png 310x350 }http://www.free-culture.cc/ + +Let me explain how. + +2~ Law: Duration +={copyright:duration of+14} + +When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that the English had confronted in 1774. Many states had passed laws protecting creative property, and some believed that these laws simply supplemented common law rights that already protected creative authorship.~{ William W. Crosskey, /{Politics and the Constitution in the History of the United States}/ (London: Cambridge University Press, 1953), vol. 1, 485-86: "extinguish[ing], by plain implication of "the supreme Law of the Land," /{the perpetual rights which authors had, or were supposed by some to have, under the Common Law}/" (emphasis added). }~ This meant that there was no guaranteed public domain in the United States in 1790. If copyrights were protected by the common law, then there was no simple way to know whether a work published in the United States was controlled or free. Just as in England, this lingering uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works. +={Congress, U.S.:on copyright laws+2;Copyright Act (1790)+3;creative property:common law protections of;public domain:balance of U.S. content in+5} + +That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, federal protections for copyrighted works displaced any state law protections. Just as in England the Statute of Anne eventually meant that the copyrights for all English works expired, a federal statute meant that any state copyrights expired as well. +={Statute of Anne (1710);law:federal vs. state+2} + +In 1790, Congress enacted the first copyright law. It created a federal copyright and secured that copyright for fourteen years. If the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain. +={copyright:renewability of+11} + +While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually registered under the federal copyright regime. Of all the work created in the United States both before 1790 and from 1790 through 1800, 95 percent immediately passed into the public domain; the balance would pass into the pubic domain within twenty-eight years at most, and more likely within fourteen years.~{ Although 13,000 titles were published in the United States from 1790 to 1799, only 556 copyright registrations were filed; John Tebbel, /{A History of Book Publishing in the United States,}/ vol. 1, /{The Creation of an Industry, 1630- 1865}/ (New York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only twelve were copyrighted under the 1790 act; William J. Maher, /{Copyright Term, Retrospective Extension and the Copyright Law of 1790 in Historical Context,}/ 7-10 (2002), available at link #25. Thus, the overwhelming majority of works fell immediately into the public domain. Even those works that were copyrighted fell into the public domain quickly, because the term of copyright was short. The initial term of copyright was fourteen years, with the option of renewal for an additional fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124. }~ + +This system of renewal was a crucial part of the American system of copyright. It assured that the maximum terms of copyright would be granted only for works where they were wanted. After the initial term of fourteen years, if it wasn't worth it to an author to renew his copyright, then it wasn't worth it to society to insist on the copyright, either. + +Fourteen years may not seem long to us, but for the vast majority of copyright owners at that time, it was long enough: Only a small minority of them renewed their copyright after fourteen years; the balance allowed their work to pass into the public domain.~{ Few copyright holders ever chose to renew their copyrights. For instance, of the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright," /{Studies on Copyright,}/ vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more recent and comprehensive analysis, see William M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright," /{University of Chicago Law Review}/ 70 (2003): 471, 498-501, and accompanying figures. }~ + +Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall out of print after one year.~{ See Ringer, ch. 9, n. 2. }~ When that happens, the used books are traded free of copyright regulation. Thus the books are no longer /{effectively}/ controlled by copyright. The only practical commercial use of the books at that time is to sell the books as used books; that use - because it does not involve publication - is effectively free. +={books:resales of|out of print} + +In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copyright from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. +={Congress, U.S.:on copyright laws+6|copyright terms extended by+6;copyright law:term extensions in+6} + +Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years. +={Sonny Bono Copyright Term Extension Act (CTEA) (1998)+1;public domain:future patents vs. future copyrights in+4} + +The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the public domain will have been tolled for thirty-nine out of fifty-five years, or 70 percent of the time since 1962. Thus, in the twenty years after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term. +={patents:in public domain} + +The effect of these extensions has been exacerbated by another, little-noticed change in the copyright law. Remember I said that the framers established a two- part copyright regime, requiring a copyright owner to renew his copyright after an initial term. The requirement of renewal meant that works that no longer needed copyright protection would pass more quickly into the public domain. The works remaining under protection would be those that had some continuing commercial value. + +The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term - the maximum term. For "natural" authors, that term was life plus fifty years. For corporations, the term was seventy-five years. Then, in 1992, Congress abandoned the renewal requirement for all works created before 1978. All works still under copyright would be accorded the maximum term then available. After the Sonny Bono Act, that term was ninety-five years. +={Sonny Bono Copyright Term Extension Act (CTEA) (1998);copyright:of natural authors vs. corporations;corporations:copyright terms for} + +This change meant that American law no longer had an automatic way to assure that works that were no longer exploited passed into the public domain. And indeed, after these changes, it is unclear whether it is even possible to put works into the public domain. The public domain is orphaned by these changes in copyright law. Despite the requirement that terms be "limited," we have no evidence that anything will limit them. + +The effect of these changes on the average duration of copyright is dramatic. In 1973, more than 85 percent of copyright owners failed to renew their copyright. That meant that the average term of copyright in 1973 was just 32.2 years. Because of the elimination of the renewal requirement, the average term of copyright is now the maximum term. In thirty years, then, the average term has tripled, from 32.2 years to 95 years.~{ These statistics are understated. Between the years 1910 and 1962 (the first year the renewal term was extended), the average term was never more than thirty-two years, and averaged thirty years. See Landes and Posner, "Indefinitely Renewable Copyright," loc. cit. }~ + +2~ Law: Scope +={copyright:scope of+17} + +The "scope" of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. + +In 1790, that scope was very narrow. Copyright covered only "maps, charts, and books." That means it didn't cover, for example, music or architecture. More significantly, the right granted by a copyright gave the author the exclusive right to "publish" copyrighted works. That means someone else violated the copyright only if he republished the work without the copyright owner's permission. Finally, the right granted by a copyright was an exclusive right to that particular book. The right did not extend to what lawyers call "derivative works." It would not, therefore, interfere with the right of someone other than the author to translate a copyrighted book, or to adapt the story to a different form (such as a drama based on a published book). +={copyright law:on republishing vs. transformation of original work;derivative works:historical shift in copyright coverage of+2} + +This, too, has changed dramatically. While the contours of copyright today are extremely hard to describe simply, in general terms, the right covers practically any creative work that is reduced to a tangible form. It covers music as well as architecture, drama as well as computer programs. It gives the copyright owner of that creative work not only the exclusive right to "publish" the work, but also the exclusive right of control over any "copies" of that work. And most significant for our purposes here, the right gives the copyright owner control over not only his or her particular work, but also any "derivative work" that might grow out of the original work. In this way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work. + +At the same time that the scope of copyright has expanded, procedural limitations on the right have been relaxed. I've already described the complete removal of the renewal requirement in 1992. In addition to the renewal requirement, for most of the history of American copyright law, there was a requirement that a work be registered before it could receive the protection of a copyright. There was also a requirement that any copyrighted work be marked either with that famous © or the word /{copyright}/. And for most of the history of American copyright law, there was a requirement that works be deposited with the government before a copyright could be secured. +={copyright:marking of+2;formalities+2;copyright law:registration requirement of+2} + +The reason for the registration requirement was the sensible understanding that for most works, no copyright was required. Again, in the first ten years of the Republic, 95 percent of works eligible for copyright were never copyrighted. Thus, the rule reflected the norm: Most works apparently didn't need copyright, so registration narrowed the regulation of the law to the few that did. The same reasoning justified the requirement that a work be marked as copyrighted - that way it was easy to know whether a copyright was being claimed. The requirement that works be deposited was to assure that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author. + +All of these "formalities" were abolished in the American system when we decided to follow European copyright law. There is no requirement that you register a work to get a copyright; the copyright now is automatic; the copyright exists whether or not you mark your work with a ©; and the copyright exists whether or not you actually make a copy available for others to copy. +={copyright law:European} + +Consider a practical example to understand the scope of these differences. + +If, in 1790, you wrote a book and you were one of the 5 percent who actually copyrighted that book, then the copyright law protected you against another publisher's taking your book and republishing it without your permission. The aim of the act was to regulate publishers so as to prevent that kind of unfair competition. In 1790, there were 174 publishers in the United States.~{ See Thomas Bender and David Sampliner, "Poets, Pirates, and the Creation of American Literature," 29 /{New York University Journal of International Law and Politics}/ 255 (1997), and James Gilraeth, ed., Federal Copyright Records, 1790- 1800 (U.S. G.P.O., 1987). }~ The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in the United States - publishers. +={Copyright Act (1790)+1} + +The act left other creators totally unregulated. If I copied your poem by hand, over and over again, as a way to learn it by heart, my act was totally unregulated by the 1790 act. If I took your novel and made a play based upon it, or if I translated it or abridged it, none of those activities were regulated by the original copyright act. These creative activities remained free, while the activities of publishers were restrained. +={copyright law:on republishing vs. transformation of original work+8;derivative works:piracy vs.+3;piracy:derivative work vs.+6} + +Today the story is very different: If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, every note to your spouse, every doodle, /{every}/ creative act that's reduced to a tangible form - all of this is automatically copyrighted. There is no need to register or mark your work. The protection follows the creation, not the steps you take to protect it. + +That protection gives you the right (subject to a narrow range of fair use exceptions) to control how others copy the work, whether they copy it to republish it or to share an excerpt. + +That much is the obvious part. Any system of copyright would control competing publishing. But there's a second part to the copyright of today that is not at all obvious. This is the protection of "derivative rights." If you write a book, no one can make a movie out of your book without permission. No one can translate it without permission. CliffsNotes can't make an abridgment unless permission is granted. All of these derivative uses of your original work are controlled by the copyright holder. The copyright, in other words, is now not just an exclusive right to your writings, but an exclusive right to your writings and a large proportion of the writings inspired by them. + +It is this derivative right that would seem most bizarre to our framers, though it has become second nature to us. Initially, this expansion was created to deal with obvious evasions of a narrower copyright. If I write a book, can you change one word and then claim a copyright in a new and different book? Obviously that would make a joke of the copyright, so the law was properly expanded to include those slight modifications as well as the verbatim original work. + +In preventing that joke, the law created an astonishing power within a free culture - at least, it's astonishing when you understand that the law applies not just to the commercial publisher but to anyone with a computer. I understand the wrong in duplicating and selling someone else's work. But whatever /{that}/ wrong is, transforming someone else's work is a different wrong. Some view transformation as no wrong at all - they believe that our law, as the framers penned it, should not protect derivative rights at all.~{ Jonathan Zittrain, "The Copyright Cage," /{Legal Affairs,}/ July/August 2003, available at link #26. }~ Whether or not you go that far, it seems plain that whatever wrong is involved is fundamentally different from the wrong of direct piracy. + +Yet copyright law treats these two different wrongs in the same way. I can go to court and get an injunction against your pirating my book. I can go to court and get an injunction against your transformative use of my book.~{ Professor Rubenfeld has presented a powerful constitutional argument about the difference that copyright law should draw (from the perspective of the First Amendment) between mere "copies" and derivative works. See Jed Rubenfeld, "The Freedom of Imagination: Copyright's Constitutionality," /{Yale Law Journal}/ 112 (2002): 1-60 (see especially pp. 53-59). }~ These two different uses of my creative work are treated the same. + +This again may seem right to you. If I wrote a book, then why should you be able to write a movie that takes my story and makes money from it without paying me or crediting me? Or if Disney creates a creature called "Mickey Mouse," why should you be able to make Mickey Mouse toys and be the one to trade on the value that Disney originally created? +={Disney, Walt;Mickey Mouse} + +These are good arguments, and, in general, my point is not that the derivative right is unjustified. My aim just now is much narrower: simply to make clear that this expansion is a significant change from the rights originally granted. + +2~ Law and Architecture: Reach + +Whereas originally the law regulated only publishers, the change in copyright's scope means that the law today regulates publishers, users, and authors. It regulates them because all three are capable of making copies, and the core of the regulation of copyright law is copies.~{ This is a simplification of the law, but not much of one. The law certainly regulates more than "copies" - a public performance of a copyrighted song, for example, is regulated even though performance per se doesn't make a copy; 17 /{United States Code,}/ section 106(4). And it certainly sometimes doesn't regulate a "copy"; 17 /{United States Code,}/ section 112(a). But the presumption under the existing law (which regulates "copies;" 17 /{United States Code,}/ section 102) is that if there is a copy, there is a right. }~ +={copyright law:copies as core issue of+1|scope of+2} + +"Copies." That certainly sounds like the obvious thing for /{copy}/right law to regulate. But as with Jack Valenti's argument at the start of this chapter, that "creative property" deserves the "same rights" as all other property, it is the /{obvious}/ that we need to be most careful about. For while it may be obvious that in the world before the Internet, copies were the obvious trigger for copyright law, upon reflection, it should be obvious that in the world with the Internet, copies should /{not}/ be the trigger for copyright law. More precisely, they should not /{always}/ be the trigger for copyright law. +={Valenti, Jack:on creative property rights;creative property:other property rights vs.+1} + +This is perhaps the central claim of this book, so let me take this very slowly so that the point is not easily missed. My claim is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies,~{ Thus, my argument is not that in each place that copyright law extends, we should repeal it. It is instead that we should have a good argument for its extending where it does, and should not determine its reach on the basis of arbitrary and automatic changes caused by technology. }~ because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law. + +We can see this point abstractly by beginning with this largely empty circle. + +{freeculture05.png 350x350 "uses" }http://www.free-culture.cc/ + +Think about a book in real space, and imagine this circle to represent all its potential /{uses}/. Most of these uses are unregulated by copyright law, because the uses don't create a copy. If you read a book, that act is not regulated by copyright law. If you give someone the book, that act is not regulated by copyright law. If you resell a book, that act is not regulated (copyright law expressly states that after the first sale of a book, the copyright owner can impose no further conditions on the disposition of the book). If you sleep on the book or use it to hold up a lamp or let your puppy chew it up, those acts are not regulated by copyright law, because those acts do not make a copy. +={books:three types of uses of+9;copyright law:copies as core issue of+16;Internet:copyright applicability altered by technology of+16;technology:copyright intent altered by+16;derivative works:piracy vs.+3;piracy:derivative work vs.+3} + +% piracy derivative work vs. in original index, not found, but included for page indicated + +{freeculture06.png 350x350 "unregulated" }http://www.free-culture.cc/ + +Obviously, however, some uses of a copyrighted book are regulated by copyright law. Republishing the book, for example, makes a copy. It is therefore regulated by copyright law. Indeed, this particular use stands at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation (see first diagram on next page). + +Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these "fair uses." +={fair use+6;copyright law:fair use and+6} + +{freeculture07.png 350x350 }http://www.free-culture.cc/ + +These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain unregulated. You are free to quote from this book, even in a review that is quite negative, without my permission, even though that quoting makes a copy. That copy would ordinarily give the copyright owner the exclusive right to say whether the copy is allowed or not, but the law denies the owner any exclusive right over such "fair uses" for public policy (and possibly First Amendment) reasons. +={Constitution, U.S.:First Amendment to;First Amendment} + +{freeculture08.png 450x350 }http://www.free-culture.cc/ + +{freeculture09.png 350x350 }http://www.free-culture.cc/ + +In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed "fair" regardless of the copyright owner's views. +={copyright:usage restrictions attached to+8} + +Enter the Internet - a distributed, digital network where every use of a copyrighted work produces a copy.~{ I don't mean "nature" in the sense that it couldn't be different, but rather that its present instantiation entails a copy. Optical networks need not make copies of content they transmit, and a digital network could be designed to delete anything it copies so that the same number of copies remain. }~ And because of this single, arbitrary feature of the design of a digital network, the scope of category 1 changes dramatically. Uses that before were presumptively unregulated are now presumptively regulated. No longer is there a set of presumptively unregulated uses that define a freedom associated with a copyrighted work. Instead, each use is now subject to the copyright, because each use also makes a copy - category 1 gets sucked into category 2. And those who would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift. +={books:on Internet+7;Internet:books on+7;fair use:Internet burdens on} + +So let's be very specific to make this general point clear. Before the Internet, if you purchased a book and read it ten times, there would be no plausible /{copyright}/-related argument that the copyright owner could make to control that use of her book. Copyright law would have nothing to say about whether you read the book once, ten times, or every night before you went to bed. None of those instances of use - reading - could be regulated by copyright law because none of those uses produced a copy. + +But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book only once or only once a month, then /{copyright law}/ would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner's wish. +={e-books+5;derivative works:technological developments and+4} + +There are some people who think this makes perfect sense. My aim just now is not to argue about whether it makes sense or not. My aim is only to make clear the change. Once you see this point, a few other points also become clear: + +First, making category 1 disappear is not anything any policy maker ever intended. Congress did not think through the collapse of the presumptively unregulated uses of copyrighted works. There is no evidence at all that policy makers had this idea in mind when they allowed our policy here to shift. Unregulated uses were an important part of free culture before the Internet. + +Second, this shift is especially troubling in the context of transformative uses of creative content. Again, we can all understand the wrong in commercial piracy. But the law now purports to regulate /{any}/ transformation you make of creative work using a machine. "Copy and paste" and "cut and paste" become crimes. Tinkering with a story and releasing it to others exposes the tinkerer to at least a requirement of justification. However troubling the expansion with respect to copying a particular work, it is extraordinarily troubling with respect to transformative uses of creative work. +={copyright law:on republishing vs. transformation of original work+1} + +Third, this shift from category 1 to category 2 puts an extraordinary burden on category 3 ("fair use") that fair use never before had to bear. If a copyright owner now tried to control how many times I could read a book on-line, the natural response would be to argue that this is a violation of my fair use rights. But there has never been any litigation about whether I have a fair use right to read, because before the Internet, reading did not trigger the application of copyright law and hence the need for a fair use defense. The right to read was effectively protected before because reading was not regulated. +={fair use:Internet burdens on+1;copyright law:fair use and+1;derivative works:fair use vs.+1} + +This point about fair use is totally ignored, even by advocates for free culture. We have been cornered into arguing that our rights depend upon fair use - never even addressing the earlier question about the expansion in effective regulation. A thin protection grounded in fair use makes sense when the vast majority of uses are /{unregulated}/. But when everything becomes presumptively regulated, then the protections of fair use are not enough. + +The case of Video Pipeline is a good example. Video Pipeline was in the business of making "trailer" advertisements for movies available to video stores. The video stores displayed the trailers as a way to sell videos. Video Pipeline got the trailers from the film distributors, put the trailers on tape, and sold the tapes to the retail stores. +={Video Pipeline+5;advertising+2;film industry:trailer advertisements of+2} + +The company did this for about fifteen years. Then, in 1997, it began to think about the Internet as another way to distribute these previews. The idea was to expand their "selling by sampling" technique by giving on-line stores the same ability to enable "browsing." Just as in a bookstore you can read a few pages of a book before you buy the book, so, too, you would be able to sample a bit from the movie on-line before you bought it. +={browsing} + +In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet (rather than sending the tapes) to distributors of their videos. Two years later, Disney told Video Pipeline to stop. The owner of Video Pipeline asked Disney to talk about the matter - he had built a business on distributing this content as a way to help sell Disney films; he had customers who depended upon his delivering this content. Disney would agree to talk only if Video Pipeline stopped the distribution immediately. Video Pipeline thought it was within their "fair use" rights to distribute the clips as they had. So they filed a lawsuit to ask the court to declare that these rights were in fact their rights. +={Disney, Inc.+3;copyright law:fair use and;copyright law:copies as core issue of+3;fair use:legal intimidation tactics against+3} + +Disney countersued - for $100 million in damages. Those damages were predicated upon a claim that Video Pipeline had - willfully infringed" on Disney's copyright. When a court makes a finding of willful infringement, it can award damages not on the basis of the actual harm to the copyright owner, but on the basis of an amount set in the statute. Because Video Pipeline had distributed seven hundred clips of Disney movies to enable video stores to sell copies of those movies, Disney was now suing Video Pipeline for $100 million. +={copyright:usage restrictions attached to+2;copyright infringement lawsuits:willful infringement findings in+2;willful infringement} + +Disney has the right to control its property, of course. But the video stores that were selling Disney's films also had some sort of right to be able to sell the films that they had bought from Disney. Disney's claim in court was that the stores were allowed to sell the films and they were permitted to list the titles of the films they were selling, but they were not allowed to show clips of the films as a way of selling them without Disney's permission. + +Now, you might think this is a close case, and I think the courts would consider it a close case. My point here is to map the change that gives Disney this power. Before the Internet, Disney couldn't really control how people got access to their content. Once a video was in the marketplace, the "first-sale doctrine" would free the seller to use the video as he wished, including showing portions of it in order to engender sales of the entire movie video. But with the Internet, it becomes possible for Disney to centralize control over access to this content. Because each use of the Internet produces a copy, use on the Internet becomes subject to the copyright owner's control. The technology expands the scope of effective control, because the technology builds a copy into every transaction. +={first-sale doctrine} + +No doubt, a potential is not yet an abuse, and so the potential for control is not yet the abuse of control. Barnes & Noble has the right to say you can't touch a book in their store; property law gives them that right. But the market effectively protects against that abuse. If Barnes & Noble banned browsing, then consumers would choose other bookstores. Competition protects against the extremes. And it may well be (my argument so far does not even question this) that competition would prevent any similar danger when it comes to copyright. Sure, publishers exercising the rights that authors have assigned to them might try to regulate how many times you read a book, or try to stop you from sharing the book with anyone. But in a competitive market such as the book market, the dangers of this happening are quite slight. +={Barnes & Noble;browsing;market competition} + +Again, my aim so far is simply to map the changes that this changed architecture enables. Enabling technology to enforce the control of copyright means that the control of copyright is no longer defined by balanced policy. The control of copyright is simply what private owners choose. In some contexts, at least, that fact is harmless. But in some contexts it is a recipe for disaster. + +2~ Architecture and Law: Force + +The disappearance of unregulated uses would be change enough, but a second important change brought about by the Internet magnifies its significance. This second change does not affect the reach of copyright regulation; it affects how such regulation is enforced. + +In the world before digital technology, it was generally the law that controlled whether and how someone was regulated by copyright law. The law, meaning a court, meaning a judge: In the end, it was a human, trained in the tradition of the law and cognizant of the balances that tradition embraced, who said whether and how the law would restrict your freedom. +={copyright law:technology as automatic enforcer of;technology:copyright enforcement controlled by} + +There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of /{Casablanca}/. Warner Brothers objected. They wrote a nasty letter to the Marxes, warning them that there would be serious legal consequences if they went forward with their plan.~{ See David Lange, "Recognizing the Public Domain," /{Law and Contemporary Problems}/ 44 (1981): 172-73. }~ +={Marx Brothers+3;Warner Brothers+2;Casablanca+1} + +This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers "were brothers long before you were."~{ Ibid. See also Vaidhyanathan, /{Copyrights and Copywrongs,}/ 1-3. }~ The Marx Brothers therefore owned the word /{brothers}/, and if Warner Brothers insisted on trying to control /{Casablanca}/, then the Marx Brothers would insist on control over /{brothers}/. + +An absurd and hollow threat, of course, because Warner Brothers, like the Marx Brothers, knew that no court would ever enforce such a silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed. + +On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a machine: Increasingly, the rules of copyright law, as interpreted by the copyright owner, get built into the technology that delivers copyrighted content. It is code, rather than law, that rules. And the problem with code regulations is that, unlike law, code has no shame. Code would not get the humor of the Marx Brothers. The consequence of that is not at all funny. +={books:on Internet+30;Internet:books on+28} + +Consider the life of my Adobe eBook Reader. +={Adobe eBook Reader+2;copyright law:technology as automatic enforcer of+68;technology:copyright enforcement controlled by+68;e-books+27} + +An e-book is a book delivered in electronic form. An Adobe eBook is not a book that Adobe has published; Adobe simply produces the software that publishers use to deliver e-books. It provides the technology, and the publisher delivers the content by using the technology. + +On the next page is a picture of an old version of my Adobe eBook Reader. + +As you can see, I have a small collection of e-books within this e-book library. Some of these books reproduce content that is in the public domain: /{Middlemarch}/, for example, is in the public domain. Some of them reproduce content that is not in the public domain: My own book /{The Future of Ideas}/ is not yet within the public domain. +={Future of Ideas, The (Lessig);Lessig, Lawrence;Middlemarch (Eliot)+1;public domain:e-book restrictions on+9} + +Consider /{Middlemarch}/ first. If you click on my e-book copy of /{Middlemarch}/, you'll see a fancy cover, and then a button at the bottom called Permissions. +={Internet:copyright enforced through+46;permissions:coded controls vs.+23} + +{freeculture10.png 340x450 }http://www.free-culture.cc/ + +If you click on the Permissions button, you'll see a list of the permissions that the publisher purports to grant with this book. + +{freeculture11.png 560x250 }http://www.free-culture.cc/ + +According to my eBook Reader, I have the permission to copy to the clipboard of the computer ten text selections every ten days. (So far, I've copied no text to the clipboard.) I also have the permission to print ten pages from the book every ten days. Lastly, I have the permission to use the Read Aloud button to hear /{Middlemarch}/ read aloud through the computer. +={Middlemarch (Eliot)} + +{freeculture12.png 310x410 }http://www.free-culture.cc/ + +Here's the e-book for another work in the public domain (including the translation): Aristotle's /{Politics}/. +={Aristotle;Politics (Aristotle)} + +According to its permissions, no printing or copying is permitted at all. But fortunately, you can use the Read Aloud button to hear the book. + +{freeculture13.png 560x220 }http://www.free-culture.cc/ + +Finally (and most embarrassingly), here are the permissions for the original e- book version of my last book, /{The Future of Ideas}/: +={Future of Ideas, The (Lessig);Lessig, Lawrence} + +{freeculture14.png 560x224 }http://www.free-culture.cc/ + +No copying, no printing, and don't you dare try to listen to this book! + +Now, the Adobe eBook Reader calls these controls "permissions" - as if the publisher has the power to control how you use these works. For works under copyright, the copyright owner certainly does have the power - up to the limits of the copyright law. But for work not under copyright, there is no such copyright power.~{ In principle, a contract might impose a requirement on me. I might, for example, buy a book from you that includes a contract that says I will read it only three times, or that I promise to read it three times. But that obligation (and the limits for creating that obligation) would come from the contract, not from copyright law, and the obligations of contract would not necessarily pass to anyone who subsequently acquired the book. }~ When my e-book of /{Middlemarch}/ says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the publisher to control how I use the book on my computer, far beyond the control that the law would enable. + +The control comes instead from the code - from the technology within which the e- book "lives." Though the e-book says that these are permissions, they are not the sort of "permissions" that most of us deal with. When a teenager gets "permission" to stay out till midnight, she knows (unless she's Cinderella) that she can stay out till 2 A.M., but will suffer a punishment if she's caught. But when the Adobe eBook Reader says I have the permission to make ten copies of the text into the computer's memory, that means that after I've made ten copies, the computer will not make any more. The same with the printing restrictions: After ten pages, the eBook Reader will not print any more pages. It's the same with the silly restriction that says that you can't use the Read Aloud button to read my book aloud - it's not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won't read aloud. + +These are /{controls}/, not permissions. Imagine a world where the Marx Brothers sold word processing software that, when you tried to type "Warner Brothers," erased "Brothers" from the sentence. +={Marx Brothers;Warner Brothers} + +This is the future of copyright law: not so much copyright /{law}/ as copyright /{code}/. The controls over access to content will not be controls that are ratified by courts; the controls over access to content will be controls that are coded by programmers. And whereas the controls that are built into the law are always to be checked by a judge, the controls that are built into the technology have no similar built-in check. + +How significant is this? Isn't it always possible to get around the controls built into the technology? Software used to be sold with technologies that limited the ability of users to copy the software, but those were trivial protections to defeat. Why won't it be trivial to defeat these protections as well? + +We've only scratched the surface of this story. Return to the Adobe eBook Reader. + +Early in the life of the Adobe eBook Reader, Adobe suffered a public relations nightmare. Among the books that you could download for free on the Adobe site was a copy of /{Alice's Adventures in Wonderland}/. This wonderful book is in the public domain. Yet when you clicked on Permissions for that book, you got the following report: +={Alice's Adventures in Wonderland (Caroll)+4;public domain:e-book restrictions on+4} + +{freeculture15.png 560x310 }http://www.free-culture.cc/ + +Here was a public domain children's book that you were not allowed to copy, not allowed to lend, not allowed to give, and, as the "permissions" indicated, not allowed to "read aloud"! + +The public relations nightmare attached to that final permission. For the text did not say that you were not permitted to use the Read Aloud button; it said you did not have the permission to read the book aloud. That led some people to think that Adobe was restricting the right of parents, for example, to read the book to their children, which seemed, to say the least, absurd. + +Adobe responded quickly that it was absurd to think that it was trying to restrict the right to read a book aloud. Obviously it was only restricting the ability to use the Read Aloud button to have the book read aloud. But the question Adobe never did answer is this: Would Adobe thus agree that a consumer was free to use software to hack around the restrictions built into the eBook Reader? If some company (call it Elcomsoft) developed a program to disable the technological protection built into an Adobe eBook so that a blind person, say, could use a computer to read the book aloud, would Adobe agree that such a use of an eBook Reader was fair? Adobe didn't answer because the answer, however absurd it might seem, is no. + +The point is not to blame Adobe. Indeed, Adobe is among the most innovative companies developing strategies to balance open access to content with incentives for companies to innovate. But Adobe's technology enables control, and Adobe has an incentive to defend this control. That incentive is understandable, yet what it creates is often crazy. + +To see the point in a particularly absurd context, consider a favorite story of mine that makes the same point. + +Consider the robotic dog made by Sony named "Aibo." The Aibo learns tricks, cuddles, and follows you around. It eats only electricity and that doesn't leave that much of a mess (at least in your house). +={Aibo robotic dog+6;robotic dog+6;Sony:Aibo robotic dog produced by+6} + +The Aibo is expensive and popular. Fans from around the world have set up clubs to trade stories. One fan in particular set up a Web site to enable information about the Aibo dog to be shared. This fan set up aibopet.com (and aibohack.com, but that resolves to the same site), and on that site he provided information about how to teach an Aibo to do tricks in addition to the ones Sony had taught it. +={hacks+4} + +"Teach" here has a special meaning. Aibos are just cute computers. You teach a computer how to do something by programming it differently. So to say that aibopet.com was giving information about how to teach the dog to do new tricks is just to say that aibopet.com was giving information to users of the Aibo pet about how to hack their computer "dog" to make it do new tricks (thus, aibohack.com). + +If you're not a programmer or don't know many programmers, the word /{hack}/ has a particularly unfriendly connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in horror movies do even worse. But to programmers, or coders, as I call them, /{hack}/ is a much more positive term. /{Hack}/ just means code that enables the program to do something it wasn't originally intended or enabled to do. If you buy a new printer for an old computer, you might find the old computer doesn't run, or "drive," the printer. If you discovered that, you'd later be happy to discover a hack on the Net by someone who has written a driver to enable the computer to drive the printer you just bought. + +Some hacks are easy. Some are unbelievably hard. Hackers as a community like to challenge themselves and others with increasingly difficult tasks. There's a certain respect that goes with the talent to hack well. There's a well-deserved respect that goes with the talent to hack ethically. + +The Aibo fan was displaying a bit of both when he hacked the program and offered to the world a bit of code that would enable the Aibo to dance jazz. The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that turned the dog into a more talented creature than Sony had built. + +I've told this story in many contexts, both inside and outside the United States. Once I was asked by a puzzled member of the audience, is it permissible for a dog to dance jazz in the United States? We forget that stories about the backcountry still flow across much of the world. So let's just be clear before we continue: It's not a crime anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it be a crime (though we don't have a lot to go on here) to teach your robot dog to dance jazz. Dancing jazz is a completely legal activity. One imagines that the owner of aibopet.com thought, /{What possible problem could there be with teaching a robot dog to dance?}/ + +Let's put the dog to sleep for a minute, and turn to a pony show - not literally a pony show, but rather a paper that a Princeton academic named Ed Felten prepared for a conference. This Princeton academic is well known and respected. He was hired by the government in the Microsoft case to test Microsoft's claims about what could and could not be done with its own code. In that trial, he demonstrated both his brilliance and his coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his ground. He was not about to be bullied into being silent about something he knew very well. +={Felten, Ed+11;Microsoft:government case against} + +But Felten's bravery was really tested in April 2001.~{ See Pamela Samuelson, "Anticircumvention Rules: Threat to Science," /{Science}/ 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles the Techies Who Teach a Robot Dog New Tricks," /{American Prospect,}/ 1 January 2002; "Court Dismisses Computer Scientists' Challenge to DMCA," /{Intellectual Property Litigation Reporter,}/ 11 December 2001; Bill Holland, "Copyright Act Raising Free-Speech Concerns," /{Billboard,}/ 26 May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com, 26 April 2001; Electronic Frontier Foundation, "Frequently Asked Questions about /{Felten and USENIX v. RIAA}/ Legal Case," available at link #27. }~ He and a group of colleagues were working on a paper to be submitted at conference. The paper was intended to describe the weakness in an encryption system being developed by the Secure Digital Music Initiative as a technique to control the distribution of music. +={Secure Digital Music Initiative (SDMI)+5;encryption systems+5;Internet:encryption systems designed for+5} + +The SDMI coalition had as its goal a technology to enable content owners to exercise much better control over their content than the Internet, as it originally stood, granted them. Using encryption, SDMI hoped to develop a standard that would allow the content owner to say "this music cannot be copied," and have a computer respect that command. The technology was to be part of a "trusted system" of control that would get content owners to trust the system of the Internet much more. + +When SDMI thought it was close to a standard, it set up a competition. In exchange for providing contestants with the code to an SDMI-encrypted bit of content, contestants were to try to crack it and, if they did, report the problems to the consortium. + +Felten and his team figured out the encryption system quickly. He and the team saw the weakness of this system as a type: Many encryption systems would suffer the same weakness, and Felten and his team thought it worthwhile to point this out to those who study encryption. + +Let's review just what Felten was doing. Again, this is the United States. We have a principle of free speech. We have this principle not just because it is the law, but also because it is a really great idea. A strongly protected tradition of free speech is likely to encourage a wide range of criticism. That criticism is likely, in turn, to improve the systems or people or ideas criticized. +={speech, freedom of:useful criticism fostered by} + +What Felten and his colleagues were doing was publishing a paper describing the weakness in a technology. They were not spreading free music, or building and deploying this technology. The paper was an academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed. + +What links these two, aibopet.com and Felten, is the letters they then received. Aibopet.com received a letter from Sony about the aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony wrote: +={Aibo robotic dog+1;robotic dog+1;Sony:Aibo robotic dog produced by+1} + +_1 Your site contains information providing the means to circumvent AIBO-ware's copy protection protocol constituting a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act." +={circumvention technologies;Digital Millennium Copyright Act (DMCA)+7;DMCA (Digital Millennium Copyright Act)+7;copyright law:circumvention technology banned by+19;technology:of circumvention} + +And though an academic paper describing the weakness in a system of encryption should also be perfectly legal, Felten received a letter from an RIAA lawyer that read: +={Recording Industry Association of America (RIAA):on encryption system critique+1} + +_1 Any disclosure of information gained from participating in the Public Challenge would be outside the scope of activities permitted by the Agreement and could subject you and your research team to actions under the Digital Millennium Copyright Act ("DMCA")." + +In both cases, this weirdly Orwellian law was invoked to control the spread of information. The Digital Millennium Copyright Act made spreading such information an offense. + +The DMCA was enacted as a response to copyright owners' first fear about cyberspace. The fear was that copyright control was effectively dead; the response was to find technologies that might compensate. These new technologies would be copyright protection technologies - technologies to control the replication and distribution of copyrighted material. They were designed as /{code}/ to modify the original /{code}/ of the Internet, to reestablish some protection for copyright owners. + +The DMCA was a bit of law intended to back up the protection of this code designed to protect copyrighted material. It was, we could say, /{legal code}/ intended to buttress /{software code}/ which itself was intended to support the /{legal code of copyright}/. + +But the DMCA was not designed merely to protect copyrighted works to the extent copyright law protected them. Its protection, that is, did not end at the line that copyright law drew. The DMCA regulated devices that were designed to circumvent copyright protection measures. It was designed to ban those devices, whether or not the use of the copyrighted material made possible by that circumvention would have been a copyright violation. +={circumvention technologies+13;fair use:circumvention technology ban and+1;technology:of circumvention+13} + +Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright protection system for the purpose of enabling the dog to dance jazz. That enablement no doubt involved the use of copyrighted material. But as aibopet.com's site was noncommercial, and the use did not enable subsequent copyright infringements, there's no doubt that aibopet.com's hack was fair use of Sony's copyrighted material. Yet fair use is not a defense to the DMCA. The question is not whether the use of the copyrighted material was a copyright violation. The question is whether a copyright protection system was circumvented. +={Felten, Ed+1;Aibo robotic dog;robotic dog;Sony:Aibo robotic dog produced by;copyright law:fair use and} + +The threat against Felten was more attenuated, but it followed the same line of reasoning. By publishing a paper describing how a copyright protection system could be circumvented, the RIAA lawyer suggested, Felten himself was distributing a circumvention technology. Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright. +={Recording Industry Association of America (RIAA):on circumvention technology} + +The bizarreness of these arguments is captured in a cartoon drawn in 1981 by Paul Conrad. At that time, a court in California had held that the VCR could be banned because it was a copyright-infringing technology: It enabled consumers to copy films without the permission of the copyright owner. No doubt there were uses of the technology that were legal: Fred Rogers, aka "Mr. Rogers," for example, had testified in that case that he wanted people to feel free to tape /{Mr. Rogers' Neighborhood}/. +={Conrad, Paul;Rogers, Fred;cassette recording:VCRs+10;VCRs+10;Mr. Rogers' Neighborhood;television:VCR taping of+8} + +_1 Some public stations, as well as commercial stations, program the "Neighborhood" at hours when some children cannot use it. I think that it's a real service to families to be able to record such programs and show them at appropriate times. I have always felt that with the advent of all of this new technology that allows people to tape the "Neighborhood" off-the-air, and I'm speaking for the "Neighborhood" because that's what I produce, that they then become much more active in the programming of their family's television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been "You are an important person just the way you are. You can make healthy decisions." Maybe I'm going on too long, but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important."~{ /{Sony Corporation of America v. Universal City Studios, Inc.,}/ 464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the VCR. See James Lardner, /{Fast Forward: Hollywood, the Japanese, and the Onslaught of the VCR}/ (New York: W. W. Norton, 1987), 270-71. }~ + +Even though there were uses that were legal, because there were some uses that were illegal, the court held the companies producing the VCR responsible. + +This led Conrad to draw the cartoon below, which we can adopt to the DMCA. +={Conrad, Paul;Digital Millennium Copyright Act (DMCA)+2;DMCA (Digital Millennium Copyright Act)+2} + +No argument I have can top this picture, but let me try to get close. + +The anticircumvention provisions of the DMCA target copyright circumvention technologies. Circumvention technologies can be used for different ends. They can be used, for example, to enable massive pirating of copyrighted material - a bad end. Or they can be used to enable the use of particular copyrighted materials in ways that would be considered fair use - a good end. + +A handgun can be used to shoot a police officer or a child. Most would agree such a use is bad. Or a handgun can be used for target practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses. +={guns+1;handguns+1} + +{freeculture16.png 425x500 }http://www.free-culture.cc/ + +The obvious point of Conrad's cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and circumvention technologies) are illegal. Flash: /{No one ever died from copyright circumvention}/. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do. +={Recording Industry Association of America (RIAA):on circumvention technology+1} + +The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright owners restrict fair use; using the DMCA, they punish those who would attempt to evade the restrictions on fair use that they impose through code. Technology becomes a means by which fair use can be erased; the law of the DMCA backs up that erasing. +={Conrad, Paul;Digital Millennium Copyright Act (DMCA);DMCA (Digital Millennium Copyright Act);Aibo robotic dog+1;robotic dog+1;copyright law:fair use and+1;fair use:technological restriction of+1} + +This is how /{code}/ becomes /{law}/. The controls built into the technology of copy and access protection become rules the violation of which is also a violation of the law. In this way, the code extends the law - increasing its regulation, even if the subject it regulates (activities that would otherwise plainly constitute fair use) is beyond the reach of the law. Code becomes law; code extends the law; code thus extends the control that copyright owners effect - at least for those copyright holders with the lawyers who can write the nasty letters that Felten and aibopet.com received. +={Felten, Ed} + +There is one final aspect of the interaction between architecture and law that contributes to the force of copyright's regulation. This is the ease with which infringements of the law can be detected. For contrary to the rhetoric common at the birth of cyberspace that on the Internet, no one knows you're a dog, increasingly, given changing technologies deployed on the Internet, it is easy to find the dog who committed a legal wrong. The technologies of the Internet are open to snoops as well as sharers, and the snoops are increasingly good at tracking down the identity of those who violate the rules. + +For example, imagine you were part of a /{Star Trek}/ fan club. You gathered every month to share trivia, and maybe to enact a kind of fan fiction about the show. One person would play Spock, another, Captain Kirk. The characters would begin with a plot from a real story, then simply continue it.~{ For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions, Copyright, Fan Fiction, and a New Common Law," /{Loyola of Los Angeles Entertainment Law Journal}/ 17 (1997): 651. }~ + +Before the Internet, this was, in effect, a totally unregulated activity. No matter what happened inside your club room, you would never be interfered with by the copyright police. You were free in that space to do as you wished with this part of our culture. You were allowed to build on it as you wished without fear of legal control. +={Internet:copyright enforced through+1} + +But if you moved your club onto the Internet, and made it generally available for others to join, the story would be very different. Bots scouring the Net for trademark and copyright infringement would quickly find your site. Your posting of fan fiction, depending upon the ownership of the series that you're depicting, could well inspire a lawyer's threat. And ignoring the lawyer's threat would be extremely costly indeed. The law of copyright is extremely efficient. The penalties are severe, and the process is quick. +={bots} + +This change in the effective force of the law is caused by a change in the ease with which the law can be enforced. That change too shifts the law's balance radically. It is as if your car transmitted the speed at which you traveled at every moment that you drove; that would be just one step before the state started issuing tickets based upon the data you transmitted. That is, in effect, what is happening here. + +2~ Market: Concentration + +So copyright's duration has increased dramatically - tripled in the past thirty years. And copyright's scope has increased as well - from regulating only publishers to now regulating just about everyone. And copyright's reach has changed, as every action becomes a copy and hence presumptively regulated. And as technologists find better ways to control the use of content, and as copyright is increasingly enforced through technology, copyright's force changes, too. Misuse is easier to find and easier to control. This regulation of the creative process, which began as a tiny regulation governing a tiny part of the market for creative work, has become the single most important regulator of creativity there is. It is a massive expansion in the scope of the government's control over innovation and creativity; it would be totally unrecognizable to those who gave birth to copyright's control. + +Still, in my view, all of these changes would not matter much if it weren't for one more change that we must also consider. This is a change that is in some sense the most familiar, though its significance and scope are not well understood. It is the one that creates precisely the reason to be concerned about all the other changes I have described. + +This is the change in the concentration and integration of the media. In the past twenty years, the nature of media ownership has undergone a radical alteration, caused by changes in legal rules governing the media. Before this change happened, the different forms of media were owned by separate media companies. Now, the media is increasingly owned by only a few companies. Indeed, after the changes that the FCC announced in June 2003, most expect that within a few years, we will live in a world where just three companies control more than 85 percent of the media. +={FCC:media ownership regulated by+2;media:ownership concentration in+21} + +These changes are of two sorts: the scope of concentration, and its nature. + +Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media ownership, "five companies control 85 percent of our media sources."~{ FCC Oversight: Hearing Before the Senate Commerce, Science and Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement of Senator John McCain). }~ The five recording labels of Universal Music Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8 percent of the U.S. music market.~{ Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to Slide," /{New York Times,}/ 23 December 2002. }~ The "five largest cable companies pipe programming to 74 percent of the cable subscribers nationwide."~{ Molly Ivins, "Media Consolidation Must Be Stopped," /{Charleston Gazette,}/ 31 May 2003. }~ +={BMG;cable television;EMI;McCain, John;recording industry:ownership concentration in;Sony Music Entertainment;Universal Music Group;Warner Music Group;television:ownership consolidation in} + +The story with radio is even more dramatic. Before deregulation, the nation's largest radio broadcasting conglomerate owned fewer than seventy-five stations. Today /{one}/ company owns more than 1,200 stations. During that period of consolidation, the total number of radio owners dropped by 34 percent. Today, in most markets, the two largest broadcasters control 74 percent of that market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues. +={radio:ownership concentration in} + +Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than there were eighty years ago, and ten companies control half of the nation's circulation. There are twenty major newspaper publishers in the United States. The top ten film studios receive 99 percent of all film revenue. The ten largest cable companies account for 85 percent of all cable revenue. This is a market far from the free press the framers sought to protect. Indeed, it is a market that is quite well protected - by the market. +={cable television+2;television:ownership consolidation in+2;film industry:consolidation of;newspapers:ownership consolidation of+2} + +Concentration in size alone is one thing. The more invidious change is in the nature of that concentration. As author James Fallows put it in a recent article about Rupert Murdoch, +={Fallows, James+1;radio:ownership concentration in+2;Murdoch, Rupert+1} + +_1 Murdoch's companies now constitute a production system unmatched in its integration. They supply content - Fox movies ... Fox TV shows ... Fox-controlled sports broadcasts, plus newspapers and books. They sell the content to the public and to advertisers - in newspapers, on the broadcast network, on the cable channels. And they operate the physical distribution system through which the content reaches the customers. Murdoch's satellite systems now distribute News Corp. content in Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that system will serve the same function in the United States."~{ James Fallows, "The Age of Murdoch," /{Atlantic Monthly}/ (September 2003): 89. }~ +={DirectTV;Fox (film company);News Corp} + +The pattern with Murdoch is the pattern of modern media. Not just large companies owning many radio stations, but a few companies owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do: + +{freeculture17.png 560x350 }http://www.free-culture.cc/ + +Does this concentration matter? Will it affect what is made, or what is distributed? Or is it merely a more efficient way to produce and distribute content? +={innovation:media conglomeration as disincentive for+13} + +My view was that concentration wouldn't matter. I thought it was nothing more than a more efficient financial structure. But now, after reading and listening to a barrage of creators try to convince me to the contrary, I am beginning to change my mind. + +Here's a representative story that begins to suggest how this integration may matter. + +In 1969, Norman Lear created a pilot for /{All in the Family}/. He took the pilot to ABC. The network didn't like it. It was too edgy, they told Lear. Make it again. Lear made a second pilot, more edgy than the first. ABC was exasperated. You're missing the point, they told Lear. We wanted less edgy, not more. +={Lear, Norman+2;ABC+1;All in the Family;television:independent production for+7} + +Rather than comply, Lear simply took the show elsewhere. CBS was happy to have the series; ABC could not stop Lear from walking. The copyrights that Lear held assured an independence from network control.~{ Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center Forum, "Entertainment Economics: The Movie Industry," St. Louis, Missouri, 3 April 2003 (transcript of prepared remarks available at link #28; for the Lear story, not included in the prepared remarks, see link #29). }~ +={CBS} + +The network did not control those copyrights because the law forbade the networks from controlling the content they syndicated. The law required a separation between the networks and the content producers; that separation would guarantee Lear freedom. And as late as 1992, because of these rules, the vast majority of prime time television - 75 percent of it - was "independent" of the networks. + +In 1994, the FCC abandoned the rules that required this independence. After that change, the networks quickly changed the balance. In 1985, there were twenty- five independent television production studios; in 2002, only five independent television studios remained. "In 1992, only 15 percent of new series were produced for a network by a company it controlled. Last year, the percentage of shows produced by controlled companies more than quintupled to 77 percent." "In 1992, 16 new series were produced independently of conglomerate control, last year there was one."~{ NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media Ownership Before the Senate Commerce Committee, 108th Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union and the Consumer Federation of America), available at link #30. Kimmelman quotes Victoria Riskin, president of Writers Guild of America, West, in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003. }~ In 2002, 75 percent of prime time television was owned by the networks that ran it. "In the ten-year period between 1992 and 2002, the number of prime time television hours per week produced by network studios increased over 200%, whereas the number of prime time television hours per week produced by independent studios decreased 63%."~{ Ibid. }~ +={FCC:on television production studios} + +Today, another Norman Lear with another /{All in the Family}/ would find that he had the choice either to make the show less edgy or to be fired: The content of any show developed for a network is increasingly owned by the network. +={Lear, Norman;All in the Family} + +While the number of channels has increased dramatically, the ownership of those channels has narrowed to an ever smaller and smaller few. As Barry Diller said to Bill Moyers, +={Diller, Barry+1;Moyers, Bill} + +_1 Well, if you have companies that produce, that finance, that air on their channel and then distribute worldwide everything that goes through their controlled distribution system, then what you get is fewer and fewer actual voices participating in the process. [We u]sed to have dozens and dozens of thriving independent production companies producing television programs. Now you have less than a handful."~{ "Barry Diller Takes on Media Deregulation," /{Now with Bill Moyers,}/ Bill Moyers, 25 April 2003, edited transcript available at link #31. }~ + +This narrowing has an effect on what is produced. The product of such large and concentrated networks is increasingly homogenous. Increasingly safe. Increasingly sterile. The product of news shows from networks like this is increasingly tailored to the message the network wants to convey. This is not the communist party, though from the inside, it must feel a bit like the communist party. No one can question without risk of consequence - not necessarily banishment to Siberia, but punishment nonetheless. Independent, critical, different views are quashed. This is not the environment for a democracy. +={democracy:media concentration and} + +Economics itself offers a parallel that explains why this integration affects creativity. Clay Christensen has written about the "Innovator's Dilemma": the fact that large traditional firms find it rational to ignore new, breakthrough technologies that compete with their core business. The same analysis could help explain why large, traditional media companies would find it rational to ignore new cultural trends.~{ Clayton M. Christensen, /{The Innovator's Dilemma: The Revolutionary National Bestseller that Changed the Way We Do Business}/ (Cambridge: Harvard Business School Press, 1997). Christensen acknowledges that the idea was first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of Design Hierarchies and Market Concepts in Technological Evolution," /{Research Policy}/ 14 (1985): 235- 51. For a more recent study, see Richard Foster and Sarah Kaplan, /{Creative Destruction: Why Companies That Are Built to Last Underperform the Market - and How to Successfully Transform Them}/ (New York: Currency/Doubleday, 2001). }~ Lumbering giants not only don't, but should not, sprint. Yet if the field is only open to the giants, there will be far too little sprinting. +={Christensen, Clayton M.;Innovator's Dilemma, The (Christensen)} + +I don't think we know enough about the economics of the media market to say with certainty what concentration and integration will do. The efficiencies are important, and the effect on culture is hard to measure. + +But there is a quintessentially obvious example that does strongly suggest the concern. + +In addition to the copyright wars, we're in the middle of the drug wars. Government policy is strongly directed against the drug cartels; criminal and civil courts are filled with the consequences of this battle. + +Let me hereby disqualify myself from any possible appointment to any position in government by saying I believe this war is a profound mistake. I am not pro drugs. Indeed, I come from a family once wrecked by drugs - though the drugs that wrecked my family were all quite legal. I believe this war is a profound mistake because the collateral damage from it is so great as to make waging the war insane. When you add together the burdens on the criminal justice system, the desperation of generations of kids whose only real economic opportunities are as drug warriors, the queering of constitutional protections because of the constant surveillance this war requires, and, most profoundly, the total destruction of the legal systems of many South American nations because of the power of the local drug cartels, I find it impossible to believe that the marginal benefit in reduced drug consumption by Americans could possibly outweigh these costs. +={drugs:illegal+2;criminal justice system} + +You may not be convinced. That's fine. We live in a democracy, and it is through votes that we are to choose policy. But to do that, we depend fundamentally upon the press to help inform Americans about these issues. + +Beginning in 1998, the Office of National Drug Control Policy launched a media campaign as part of the "war on drugs." The campaign produced scores of short film clips about issues related to illegal drugs. In one series (the Nick and Norm series) two men are in a bar, discussing the idea of legalizing drugs as a way to avoid some of the collateral damage from the war. One advances an argument in favor of drug legalization. The other responds in a powerful and effective way against the argument of the first. In the end, the first guy changes his mind (hey, it's television). The plug at the end is a damning attack on the pro-legalization campaign. +={advertising+4;commercials+4;television:advertising on+4;Nick and Norm anti-drug campaign} + +Fair enough. It's a good ad. Not terribly misleading. It delivers its message well. It's a fair and reasonable message. + +But let's say you think it is a wrong message, and you'd like to run a countercommercial. Say you want to run a series of ads that try to demonstrate the extraordinary collateral harm that comes from the drug war. Can you do it? + +Well,obviously, these ads cost lots of money. Assume you raise the money. Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then? + +No.You cannot. Television stations have a general policy of avoiding "controversial" ads. Ads sponsored by the government are deemed uncontroversial; ads disagreeing with the government are controversial. This selectivity might be thought inconsistent with the First Amendment, but the Supreme Court has held that stations have the right to choose what they run. Thus, the major channels of commercial media will refuse one side of a crucial debate the opportunity to present its case. And the courts will defend the rights of the stations to be this biased.~{ The Marijuana Policy Project, in February 2003, sought to place ads that directly responded to the Nick and Norm series on stations within the Washington, D.C., area. Comcast rejected the ads as "against [their] policy." The local NBC affiliate, WRC, rejected the ads without reviewing them. The local ABC affiliate, WJOA, originally agreed to run the ads and accepted payment to do so, but later decided not to run the ads and returned the collected fees. Interview with Neal Levine, 15 October 2003. These restrictions are, of course, not limited to drug policy. See, for example, Nat Ives, "On the Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," /{New York Times,}/ 13 March 2003, C4. Outside of election-related air time there is very little that the FCC or the courts are willing to do to even the playing field. For a general overview, see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial Advertising on Television and Radio," /{Yale Law and Policy Review}/ 6 (1988): 449-79, and for a more recent summary of the stance of the FCC and the courts, see /{Radio-Television News Directors Association v. FCC,}/ 184 F. 3d 872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as the networks. In a recent example from San Francisco, the San Francisco transit authority rejected an ad that criticized its Muni diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects Ad," SFGate.com, 16 June 2003, available at link #32. The ground was that the criticism was "too controversial." }~ +={Constitution, U.S.:First Amendment to;First Amendment;Supreme Court, U.S.:on television advertising bans;television:controversy avoided by} + +I'd be happy to defend the networks' rights, as well - if we lived in a media market that was truly diverse. But concentration in the media throws that condition into doubt. If a handful of companies control access to the media, and that handful of companies gets to decide which political positions it will allow to be promoted on its channels, then in an obvious and important way, concentration matters. You might like the positions the handful of companies selects. But you should not like a world in which a mere few get to decide which issues the rest of us get to know about. + +2~ Together +={copyright:scope of+25} + +There is something innocent and obvious about the claim of the copyright warriors that the government should "protect my property." In the abstract, it is obviously true and, ordinarily, totally harmless. No sane sort who is not an anarchist could disagree. + +But when we see how dramatically this "property" has changed - when we recognize how it might now interact with both technology and markets to mean that the effective constraint on the liberty to cultivate our culture is dramatically different - the claim begins to seem less innocent and obvious. Given (1) the power of technology to supplement the law's control, and (2) the power of concentrated markets to weaken the opportunity for dissent, if strictly enforcing the massively expanded "property" rights granted by copyright fundamentally changes the freedom within this culture to cultivate and build upon our past, then we have to ask whether this property should be redefined. + +Not starkly. Or absolutely. My point is not that we should abolish copyright or go back to the eighteenth century. That would be a total mistake, disastrous for the most important creative enterprises within our culture today. + +But there is a space between zero and one, Internet culture notwithstanding. And these massive shifts in the effective power of copyright regulation, tied to increased concentration of the content industry and resting in the hands of technology that will increasingly enable control over the use of culture, should drive us to consider whether another adjustment is called for. Not an adjustment that increases copyright's power. Not an adjustment that increases its term. Rather, an adjustment to restore the balance that has traditionally defined copyright's regulation - a weakening of that regulation, to strengthen creativity. + +Copyright law has not been a rock of Gibraltar. It's not a set of constant commitments that, for some mysterious reason, teenagers and geeks now flout. Instead, copyright power has grown dramatically in a short period of time, as the technologies of distribution and creation have changed and as lobbyists have pushed for more control by copyright holders. Changes in the past in response to changes in technology suggest that we may well need similar changes in the future. And these changes have to be /{reductions}/ in the scope of copyright, in response to the extraordinary increase in control that technology and the market enable. + +For the single point that is lost in this war on pirates is a point that we see only after surveying the range of these changes. When you add together the effect of changing law, concentrated markets, and changing technology, together they produce an astonishing conclusion: /{Never in our history have fewer had a legal right to control more of the development of our culture than now}/. + +Not when copyrights were perpetual, for when copyrights were perpetual, they affected only that precise creative work. Not when only publishers had the tools to publish, for the market then was much more diverse. Not when there were only three television networks, for even then, newspapers, film studios, radio stations, and publishers were independent of the networks. /{Never}/ has copyright protected such a wide range of rights, against as broad a range of actors, for a term that was remotely as long. This form of regulation - a tiny regulation of a tiny part of the creative energy of a nation at the founding - is now a massive regulation of the overall creative process. Law plus technology plus the market now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has known.~{ Siva Vaidhyanathan captures a similar point in his "four surrenders" of copyright law in the digital age. See Vaidhyanathan, 159-60. }~ +={copyright:in perpetuity} + +!_ This has been +a long chapter. Its point can now be briefly stated. + +At the start of this book, I distinguished between commercial and noncommercial culture. In the course of this chapter, I have distinguished between copying a work and transforming it. We can now combine these two distinctions and draw a clear map of the changes that copyright law has undergone. +={copyright law:history of American+10|on republishing vs. transformation of original work+16;culture:commercial vs. noncommercial+11;derivative works:historical shift in copyright coverage of+14;public domain:balance of U.S. content in+14} + +In 1790, the law looked like this: + +table{~h c3; 33; 33; 33; + +  +Publish +Transform + +Commercial +© +Free + +Noncommercial +Free +Free + +}table + +The act of publishing a map, chart, and book was regulated by copyright law. Nothing else was. Transformations were free. And as copyright attached only with registration, and only those who intended to benefit commercially would register, copying through publishing of noncommercial work was also free. +={copyright law:registration requirement of;copyright law:copies as core issue of+7} + +By the end of the nineteenth century, the law had changed to this: + +table{~h c3; 33; 33; 33; + +  +Publish +Transform + +Commercial +© +© + +Noncommercial +Free +Free + +}table + +Derivative works were now regulated by copyright law - if published, which again, given the economics of publishing at the time, means if offered commercially. But noncommercial publishing and transformation were still essentially free. +={derivative works:technological developments and+5;technology:of copying+5} + +In 1909 the law changed to regulate copies, not publishing, and after this change, the scope of the law was tied to technology. As the technology of copying became more prevalent, the reach of the law expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this: +={photocopyring machines} + +table{~h c3; 33; 33; 33; + +  +Publish +Transform + +Commercial +© +© + +Noncommercial +©/Free +Free + +}table + +The law was interpreted to reach noncommercial copying through, say, copy machines, but still much of copying outside of the commercial market remained free. But the consequence of the emergence of digital technologies, especially in the context of a digital network, means that the law now looks like this: + +table{~h c3; 33; 33; 33; + +  +Publish +Transform + +Commercial +© +© + +Noncommercial +© +© + +}table + +Every realm is governed by copyright law, whereas before most creativity was not. The law now regulates the full range of creativity - commercial or not, transformative or not - with the same rules designed to regulate commercial publishers. + +Obviously, copyright law is not the enemy. The enemy is regulation that does no good. So the question that we should be asking just now is whether extending the regulations of copyright law into each of these domains actually does any good. +={copyright:duration of+2} + +I have no doubt that it does good in regulating commercial copying. But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the reasons sketched especially in chapters 7 and 8, one might well wonder whether it does more harm than good for commercial transformation. More commercial transformative work would be created if derivative rights were more sharply restricted. + +The issue is therefore not simply whether copyright is property. Of course copyright is a kind of "property," and of course, as with any property, the state ought to protect it. But first impressions notwithstanding, historically, this property right (as with all property rights~{ It was the single most important contribution of the legal realist movement to demonstrate that all property rights are always crafted to balance public and private interests. See Thomas C. Grey, "The Disintegration of Property," in /{Nomos XXII: Property,}/ J. Roland Pennock and John W. Chapman, eds. (New York: New York University Press, 1980). }~) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to creative work. This balance has always been struck in light of new technologies. And for almost half of our tradition, the "copyright" did not control /{at all}/ the freedom of others to build upon or transform a creative work. American culture was born free, and for almost 180 years our country consistently protected a vibrant and rich free culture. +={copyright:as property+1;copyright law:fair use and+1|innovative freedom balanced with fair compensation in+2;fair use:legal intimidation tactics against+1;property rights:as balance of public good vs. private+2|copyright vs.+2} + +We achieved that free culture because our law respected important limits on the scope of the interests protected by "property." The very birth of "copyright" as a statutory right recognized those limits, by granting copyright owners protection for a limited time only (the story of chapter 6). The tradition of "fair use" is animated by a similar concern that is increasingly under strain as the costs of exercising any fair use right become unavoidably high (the story of chapter 7). Adding statutory rights where markets might stifle innovation is another familiar limit on the property right that copyright is (chapter 8). And granting archives and libraries a broad freedom to collect, claims of property notwithstanding, is a crucial part of guaranteeing the soul of a culture (chapter 9). Free cultures, like free markets, are built with property. But the nature of the property that builds a free culture is very different from the extremist vision that dominates the debate today. +={archives:digital;culture:archives of;culture archives of;libraries:archival function of} + +Free culture is increasingly the casualty in this war on piracy. In response to a real, if not yet quantified, threat that the technologies of the Internet present to twentieth-century business models for producing and distributing culture, the law and technology are being transformed in a way that will undermine our tradition of free culture. The property right that is copyright is no longer the balanced right that it was, or was intended to be. The property right that is copyright has become unbalanced, tilted toward an extreme. The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must check with a lawyer. +={free culture:permission culture vs.;permission culture:free culture vs.} + +:B~ PUZZLES + +1~ Chapter Eleven: Chimera + +!_ In a well-known +short story by H. G. Wells, a mountain climber named Nunez trips (literally, down an ice slope) into an unknown and isolated valley in the Peruvian Andes.~{ H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells, /{The Country of the Blind and Other Stories,}/ Michael Sherborne, ed. (New York: Oxford University Press, 1996). }~ The valley is extraordinarily beautiful, with "sweet water, pasture, an even climate, slopes of rich brown soil with tangles of a shrub that bore an excellent fruit." But the villagers are all blind. Nunez takes this as an opportunity. "In the Country of the Blind," he tells himself, "the One-Eyed Man is King." So he resolves to live with the villagers to explore life as a king. +={Wells, H.G.+8;Country of the Blind, The (Wells)+8} + +Things don't go quite as he planned. He tries to explain the idea of sight to the villagers. They don't understand. He tells them they are "blind." They don't have the word /{blind}/. They think he's just thick. Indeed, as they increasingly notice the things he can't do (hear the sound of grass being stepped on, for example), they increasingly try to control him. He, in turn, becomes increasingly frustrated. "'You don't understand,' he cried, in a voice that was meant to be great and resolute, and which broke. 'You are blind and I can see. Leave me alone!'" + +The villagers don't leave him alone. Nor do they see (so to speak) the virtue of his special power. Not even the ultimate target of his affection, a young woman who to him seems "the most beautiful thing in the whole of creation," understands the beauty of sight. Nunez's description of what he sees "seemed to her the most poetical of fancies, and she listened to his description of the stars and the mountains and her own sweet white-lit beauty as though it was a guilty indulgence." "She did not believe," Wells tells us, and "she could only half understand, but she was mysteriously delighted." + +When Nunez announces his desire to marry his "mysteriously delighted" love, the father and the village object. "You see, my dear," her father instructs, "he's an idiot. He has delusions. He can't do anything right." They take Nunez to the village doctor. + +After a careful examination, the doctor gives his opinion. "His brain is affected," he reports. + +"What affects it?" the father asks. + +"Those queer things that are called the eyes ... are diseased ... in such a way as to affect his brain." + +The doctor continues: "I think I may say with reasonable certainty that in order to cure him completely, all that we need to do is a simple and easy surgical operation - namely, to remove these irritant bodies [the eyes]." + +"Thank Heaven for science!" says the father to the doctor. They inform Nunez of this condition necessary for him to be allowed his bride. (You'll have to read the original to learn what happens in the end. I believe in free culture, but never in giving away the end of a story.) + +!_ It sometimes +happens that the eggs of twins fuse in the mother's womb. That fusion produces a "chimera." A chimera is a single creature with two sets of DNA. The DNA in the blood, for example, might be different from the DNA of the skin. This possibility is an underused plot for murder mysteries. "But the DNA shows with 100 percent certainty that she was not the person whose blood was at the scene. ..." +={chimeras+7;twins, as chimera+2} + +Before I had read about chimeras, I would have said they were impossible. A single person can't have two sets of DNA. The very idea of DNA is that it is the code of an individual. Yet in fact, not only can two individuals have the same set of DNA (identical twins), but one person can have two different sets of DNA (a chimera). Our understanding of a "person" should reflect this reality. + +The more I work to understand the current struggle over copyright and culture, which I've sometimes called unfairly, and sometimes not unfairly enough, "the copyright wars," the more I think we're dealing with a chimera. For example, in the battle over the question "What is p2p file sharing?" both sides have it right, and both sides have it wrong. One side says, "File sharing is just like two kids taping each others' records - the sort of thing we've been doing for the last thirty years without any question at all." That's true, at least in part. When I tell my best friend to try out a new CD that I've bought, but rather than just send the CD, I point him to my p2p server, that is, in all relevant respects, just like what every executive in every recording company no doubt did as a kid: sharing music. +={peer-to-peer (p2p) file sharing:shoplifting vs.+4;piracy:of intangible property+6} + +But the description is also false in part. For when my p2p server is on a p2p network through which anyone can get access to my music, then sure, my friends can get access, but it stretches the meaning of "friends" beyond recognition to say "my ten thousand best friends" can get access. Whether or not sharing my music with my best friend is what "we have always been allowed to do," we have not always been allowed to share music with "our ten thousand best friends." +={peer-to-peer (p2p) file sharing:felony punishments for+4;peer-to-peer (p2p) file sharing:total legalization of;copyright law:felony punishment for infringement of+2;Internet:music files downloaded from+12} + +Likewise, when the other side says, "File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out with it," that's true, at least in part. If, after Lyle Lovett (finally) releases a new album, rather than buying it, I go to Kazaa and find a free copy to take, that is very much like stealing a copy from Tower. +={Kazaa;Lovett, Lyle} + +But it is not quite stealing from Tower. After all, when I take a CD from Tower Records, Tower has one less CD to sell. And when I take a CD from Tower Records, I get a bit of plastic and a cover, and something to show on my shelves. (And, while we're at it, we could also note that when I take a CD from Tower Records, the maximum fine that might be imposed on me, under California law, at least, is $1,000. According to the RIAA, by contrast, if I download a ten-song CD, I'm liable for $1,500,000 in damages.) +={copyright infringement lawsuits:exaggerated claims of+2|in recording industry+2|against student file sharing+2;recordin industry:copyright infringement lawsuits of+2;Recording Industry Association of America (RIAA):copyright infringement lawsuits filed by+2;copyright law:felony punishment for infringement of+2} + +The point is not that it is as neither side describes. The point is that it is both - both as the RIAA describes it and as Kazaa describes it. It is a chimera. And rather than simply denying what the other side asserts, we need to begin to think about how we should respond to this chimera. What rules should govern it? +={Kazaa} + +We could respond by simply pretending that it is not a chimera. We could, with the RIAA, decide that every act of file sharing should be a felony. We could prosecute families for millions of dollars in damages just because file sharing occurred on a family computer. And we can get universities to monitor all computer traffic to make sure that no computer is used to commit this crime. These responses might be extreme, but each of them has either been proposed or actually implemented.~{ For an excellent summary, see the report prepared by GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School, "Copy- right and Digital Media in a Post-Napster World," 27 June 2003, available at link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill that would treat unauthorized on-line copying as a felony offense with punishments ranging as high as five years imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy," /{Los Angeles Times,}/ 17 July 2003, available at link #34. Civil penalties are currently set at $150,000 per copied song. For a recent (and unsuccessful) legal challenge to the RIAA's demand that an ISP reveal the identity of a user accused of sharing more than 600 songs through a family computer, see /{RIAA v. Verizon Internet Services (In re. Verizon Internet Services),}/ 240 F. Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as high as $90 million. Such astronomical figures furnish the RIAA with a powerful arsenal in its prosecution of file sharers. Settlements ranging from $12,000 to $17,500 for four students accused of heavy file sharing on university networks must have seemed a mere pittance next to the $98 billion the RIAA could seek should the matter proceed to court. See Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com, 26 August 2003, available at link #35. For an example of the RIAA's targeting of student file sharing, and of the subpoenas issued to universities to reveal student file-sharer identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to Name Students," /{Boston Globe,}/ 8 August 2003, D3, available at link #36. }~ +={university computer networks, p2p sharing on} + +Alternatively, we could respond to file sharing the way many kids act as though we've responded. We could totally legalize it. Let there be no copyright liability, either civil or criminal, for making copyrighted content available on the Net. Make file sharing like gossip: regulated, if at all, by social norms but not by law. +={peer-to-peer (p2p) file sharing:total legalization of} + +Either response is possible. I think either would be a mistake. Rather than embrace one of these two extremes, we should embrace something that recognizes the truth in both. And while I end this book with a sketch of a system that does just that, my aim in the next chapter is to show just how awful it would be for us to adopt the zero-tolerance extreme. I believe /{either}/ extreme would be worse than a reasonable alternative. But I believe the zero-tolerance solution would be the worse of the two extremes. +={copyright infringement lawsuits:zero tolerance in+1;peer-to-peer (p2p) file sharing:zero-tolerance of+7} + +Yet zero tolerance is increasingly our government's policy. In the middle of the chaos that the Internet has created, an extraordinary land grab is occurring. The law and technology are being shifted to give content holders a kind of control over our culture that they have never had before. And in this extremism, many an opportunity for new innovation and new creativity will be lost. +={copyright law:technology as automatic enforcer of+4;recording industry:copyright protections in+2;technology:copyright enforcement controlled by+3} + +I'm not talking about the opportunities for kids to "steal" music. My focus instead is the commercial and cultural innovation that this war will also kill. We have never seen the power to innovate spread so broadly among our citizens, and we have just begun to see the innovation that this power will unleash. Yet the Internet has already seen the passing of one cycle of innovation around technologies to distribute content. The law is responsible for this passing. As the vice president for global public policy at one of these new innovators, eMusic.com, put it when criticizing the DMCA's added protection for copyrighted material, +={copyright law:on music recordings+1;Digital Millennium Copyright Act (DMCA);DMCA (Digital Millennium Copyright Act);eMusic.com+4;peer-to-peer (p2p) file sharing:infringement protections in+3} + +_1 eMusic opposes music piracy. We are a distributor of copyrighted material, and we want to protect those rights. + +_1 But building a technology fortress that locks in the clout of the major labels is by no means the only way to protect copyright interests, nor is it necessarily the best. It is simply too early to answer that question. Market forces operating naturally may very well produce a totally different industry model. + +_1 This is a critical point. The choices that industry sectors make with respect to these systems will in many ways directly shape the market for digital media and the manner in which digital media are distributed. This in turn will directly influence the options that are available to consumers, both in terms of the ease with which they will be able to access digital media and the equipment that they will require to do so. Poor choices made this early in the game will retard the growth of this market, hurting everyone's interests."~{ WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital Entertainment on the Internet and Other Media: Hearing Before the Subcommittee on Telecommunications, Trade, and Consumer Protection, House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, vice president, Global Public Policy and Standards, EMusic.com), available in LEXIS, Federal Document Clearing House Congressional Testimony File. }~ + +In April 2001, eMusic.com was purchased by Vivendi Universal, one of "the major labels." Its position on these matters has now changed. +={Vivendi Universal} + +Reversing our tradition of tolerance now will not merely quash piracy. It will sacrifice values that are important to this culture, and will kill opportunities that could be extraordinarily valuable. + +1~ Chapter Twelve: Harms + +!_ To fight +"piracy," to protect "property," the content industry has launched a war. Lobbying and lots of campaign contributions have now brought the government into this war. As with any war, this one will have both direct and collateral damage. As with any war of prohibition, these damages will be suffered most by our own people. + +My aim so far has been to describe the consequences of this war, in particular, the consequences for "free culture." But my aim now is to extend this description of consequences into an argument. Is this war justified? + +In my view, it is not. There is no good reason why this time, for the first time, the law should defend the old against the new, just when the power of the property called "intellectual property" is at its greatest in our history. + +Yet "common sense" does not see it this way. Common sense is still on the side of the Causbys and the content industry. The extreme claims of control in the name of property still resonate; the uncritical rejection of "piracy" still has play. +={piracy:uncritical rejection of+1} + +There will be many consequences of continuing this war. I want to describe just three. All three might be said to be unintended. I am quite confident the third is unintended. I'm less sure about the first two. The first two protect modern RCAs, but there is no Howard Armstrong in the wings to fight today's monopolists of culture. +={Armstrong, Edwin Howard;RCA} + +2~ Constraining Creators +={copyright law:creativity impeded by+14;creativity:legal restrictions on+14} + +In the next ten years we will see an explosion of digital technologies. These technologies will enable almost anyone to capture and share content. Capturing and sharing content, of course, is what humans have done since the dawn of man. It is how we learn and communicate. But capturing and sharing through digital technology is different. The fidelity and power are different. You could send an e-mail telling someone about a joke you saw on Comedy Central, or you could send the clip. You could write an essay about the inconsistencies in the arguments of the politician you most love to hate, or you could make a short film that puts statement against statement. You could write a poem to express your love, or you could weave together a string - a mash-up - of songs from your favorite artists in a collage and make it available on the Net. +={technology:of digital capturing and sharing+2} + +This digital "capturing and sharing" is in part an extension of the capturing and sharing that has always been integral to our culture, and in part it is something new. It is continuous with the Kodak, but it explodes the boundaries of Kodak-like technologies. The technology of digital "capturing and sharing" promises a world of extraordinarily diverse creativity that can be easily and broadly shared. And as that creativity is applied to democracy, it will enable a broad range of citizens to use technology to express and criticize and contribute to the culture all around. +={democracy:digital sharing within;Kodak cameras} + +Technology has thus given us an opportunity to do something with culture that has only ever been possible for individuals in small groups, isolated from others. Think about an old man telling a story to a collection of neighbors in a small town. Now imagine that same storytelling extended across the globe. + +Yet all this is possible only if the activity is presumptively legal. In the current regime of legal regulation, it is not. Forget file sharing for a moment. Think about your favorite amazing sites on the Net. Web sites that offer plot summaries from forgotten television shows; sites that catalog cartoons from the 1960s; sites that mix images and sound to criticize politicians or businesses; sites that gather newspaper articles on remote topics of science or culture. There is a vast amount of creative work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal. +={Internet:creative Web sites on} + +That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to proliferate. It is impossible to get a clear sense of what's allowed and what's not, and at the same time, the penalties for crossing the line are astonishingly harsh. The four students who were threatened by the RIAA (Jesse Jordan of chapter 3 was just one) were threatened with a $98 billion lawsuit for building search engines that permitted songs to be copied. Yet WorldCom - which defrauded investors of $11 billion, resulting in a loss to investors in market capitalization of over $200 billion - received a fine of a mere $750 million.~{ See Lynne W. Jeter, /{Disconnected: Deceit and Betrayal at WorldCom}/ (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of the settlement, see MCI press release, "MCI Wins U.S. District Court Approval for SEC Settlement" (7 July 2003), available at link #37. }~ And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering.~{ The bill, modeled after California's tort reform model, was passed in the House of Representatives but defeated in a Senate vote in July 2003. For an overview, see Tanya Albert, "Measure Stalls in Senate: 'We'll Be Back,' Say Tort Reformers," amednews.com, 28 July 2003, available at link #38, and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003, available at link #39. President Bush has continued to urge tort reform in recent months. }~ Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient? +={WorldCom;copyright infringement lawsuits:exaggerated claims of|individual defendants intimidated by+1|in recording industry;doctors malpractice claims against;Jordan, Jesse;legal system, attorney costs in+1;recording industry:copyright infringement lawsuits of;Recording Industry Association of America (RIAA):copyright infringement lawsuits filed by} + +The consequence of this legal uncertainty, tied to these extremely high penalties, is that an extraordinary amount of creativity will either never be exercised, or never be exercised in the open. We drive this creative process underground by branding the modern-day Walt Disneys "pirates." We make it impossible for businesses to rely upon a public domain, because the boundaries of the public domain are designed to be unclear. It never pays to do anything except pay for the right to create, and hence only those who can pay are allowed to create. As was the case in the Soviet Union, though for very different reasons, we will begin to see a world of underground art - not because the message is necessarily political, or because the subject is controversial, but because the very act of creating the art is legally fraught. Already, exhibits of "illegal art" tour the United States.~{ See Danit Lidor, "Artists Just Wanna Be Free," /{Wired,}/ 7 July 2003, available at link #40. For an overview of the exhibition, see link #41. }~ In what does their "illegality" consist? In the act of mixing the culture around us with an expression that is critical or reflective. +={public domain:legal murkiness on;art, underground} + +Part of the reason for this fear of illegality has to do with the changing law. I described that change in detail in chapter 10. But an even bigger part has to do with the increasing ease with which infractions can be tracked. As users of file-sharing systems discovered in 2002, it is a trivial matter for copyright owners to get courts to order Internet service providers to reveal who has what content. It is as if your cassette tape player transmitted a list of the songs that you played in the privacy of your own home that anyone could tune into for whatever reason they chose. +={copyright law:technology as automatic enforcer of+1;Internet:user identities released by service providers of;ISPs (Internet service providers), user identities revealed by;technology:copyright enforcement controlled by+1} + +Never in our history has a painter had to worry about whether his painting infringed on someone else's work; but the modern-day painter, using the tools of Photoshop, sharing content on the Web, must worry all the time. Images are all around, but the only safe images to use in the act of creation are those purchased from Corbis or another image farm. And in purchasing, censoring happens. There is a free market in pencils; we needn't worry about its effect on creativity. But there is a highly regulated, monopolized market in cultural icons; the right to cultivate and transform them is not similarly free. +={images, ownership of} + +Lawyers rarely see this because lawyers are rarely empirical. As I described in chapter 7, in response to the story about documentary filmmaker Jon Else, I have been lectured again and again by lawyers who insist Else's use was fair use, and hence I am wrong to say that the law regulates such a use. +={Else, Jon;copyright law:fair use and+2;fair use:legal intimidation tactics against+2;legal system, attorney costs in+5} + +But fair use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astonishingly bad - in practically every context, but especially here. It costs too much, it delivers too slowly, and what it delivers often has little connection to the justice underlying the claim. The legal system may be tolerable for the very rich. For everyone else, it is an embarrassment to a tradition that prides itself on the rule of law. +={copyright infringement lawsuits:exaggerated claims of+4|individual defendants intimidated by+4} + +Judges and lawyers can tell themselves that fair use provides adequate "breathing room" between regulation by the law and the access the law should allow. But it is a measure of how out of touch our legal system has become that anyone actually believes this. The rules that publishers impose upon writers, the rules that film distributors impose upon filmmakers, the rules that newspapers impose upon journalists - these are the real laws governing creativity. And these rules have little relationship to the "law" with which judges comfort themselves. + +For in a world that threatens $150,000 for a single willful infringement of a copyright, and which demands tens of thousands of dollars to even defend against a copyright infringement claim, and which would never return to the wrongfully accused defendant anything of the costs she suffered to defend her right to speak - in that world, the astonishingly broad regulations that pass under the name "copyright" silence speech and creativity. And in that world, it takes a studied blindness for people to continue to believe they live in a culture that is free. + +As Jed Horovitz, the businessman behind Video Pipeline, said to me, +={Horovitz, Jed+1;Video Pipeline} + +_1 We're losing [creative] opportunities right and left. Creative people are being forced not to express themselves. Thoughts are not being expressed. And while a lot of stuff may [still] be created, it still won't get distributed. Even if the stuff gets made ... you're not going to get it distributed in the mainstream media unless you've got a little note from a lawyer saying, "This has been cleared." You're not even going to get it on PBS without that kind of permission. That's the point at which they control it." + +2~ Constraining Innovators +={copyright law:innovation hampered by+48;innovation:industry establishment opposed to+48;regulation:as establishment protectionism+48} + +The story of the last section was a crunchy-lefty story - creativity quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you going. Maybe you think there's enough weird art out there, and enough expression that is critical of what seems to be just about everything. And if you think that, you might think there's little in this story to worry you. + +But there's an aspect of this story that is not lefty in any sense. Indeed, it is an aspect that could be written by the most extreme pro-market ideologue. And if you're one of these sorts (and a special one at that, 188 pages into a book like this), then you can see this other aspect by substituting "free market" every place I've spoken of "free culture." The point is the same, even if the interests affecting culture are more fundamental. +={market constraints+1} + +The charge I've been making about the regulation of culture is the same charge free marketers make about regulating markets. Everyone, of course, concedes that some regulation of markets is necessary - at a minimum, we need rules of property and contract, and courts to enforce both. Likewise, in this culture debate, everyone concedes that at least some framework of copyright is also required. But both perspectives vehemently insist that just because some regulation is good, it doesn't follow that more regulation is better. And both perspectives are constantly attuned to the ways in which regulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow. + +This is the single most dramatic effect of the shift in regulatory strategy that I described in chapter 10. The consequence of this massive threat of liability tied to the murky boundaries of copyright law is that innovators who want to innovate in this space can safely innovate only if they have the sign-off from last generation's dominant industries. That lesson has been taught through a series of cases that were designed and executed to teach venture capitalists a lesson. That lesson - what former Napster CEO Hank Barry calls a "nuclear pall" that has fallen over the Valley - has been learned. +={Barry, Hank;venture capitalists} + +Consider one example to make the point, a story whose beginning I told in /{The Future of Ideas}/ and which has progressed in a way that even I (pessimist extraordinaire) would never have predicted. +={Future of Ideas, The (Lessig);Lessig, Lawrence} + +In 1997, Michael Roberts launched a company called MP3.com. MP3.com was keen to remake the music business. Their goal was not just to facilitate new ways to get access to content. Their goal was also to facilitate new ways to create content. Unlike the major labels, MP3.com offered creators a venue to distribute their creativity, without demanding an exclusive engagement from the creators. +={MP3.com+8;my.mp3.com+8;Roberts, Michael} + +To make this system work, however, MP3.com needed a reliable way to recommend music to its users. The idea behind this alternative was to leverage the revealed preferences of music listeners to recommend new artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And so on. +={Lovett, Lyle} + +This idea required a simple way to gather data about user preferences. MP3.com came up with an extraordinarily clever way to gather this preference data. In January 2000, the company launched a service called my.mp3.com. Using software provided by MP3.com, a user would sign into an account and then insert into her computer a CD. The software would identify the CD, and then give the user access to that content. So, for example, if you inserted a CD by Jill Sobule, then wherever you were - at work or at home - you could get access to that music once you signed into your account. The system was therefore a kind of music-lockbox. +={CDs:preference data on+2} + +No doubt some could use this system to illegally copy content. But that opportunity existed with or without MP3.com. The aim of the my.mp3.com service was to give users access to their own content, and as a by-product, by seeing the content they already owned, to discover the kind of content the users liked. + +To make this system function, however, MP3.com needed to copy 50,000 CDs to a server. (In principle, it could have been the user who uploaded the music, but that would have taken a great deal of time, and would have produced a product of questionable quality.) It therefore purchased 50,000 CDs from a store, and started the process of making copies of those CDs. Again, it would not serve the content from those copies to anyone except those who authenticated that they had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought. + +Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of the five. Nine months later, a federal judge found MP3.com to have been guilty of willful infringement with respect to the fifth. Applying the law as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com then settled with the remaining plaintiff, Vivendi Universal, paying over $54 million. Vivendi purchased MP3.com just about a year later. +={Vivendi Universal+2;copyright infringement lawsuits:distribution technology targeted in|exaggerated claims of|in recording industry+3;recording industry:copyright infringement lawsuits of;Recording Industry Association of America (RIAA):copyright infringement lawsuits filed by;regulation:outsize penalties of} + +That part of the story I have told before. Now consider its conclusion. + +After Vivendi purchased MP3.com, Vivendi turned around and filed a malpractice lawsuit against the lawyers who had advised it that they had a good faith claim that the service they wanted to offer would be considered legal under copyright law. This lawsuit alleged that it should have been obvious that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded. +={copyright law:malpractice lawsuits against lawyers advising on+2;lawyers:malpractice suits against+2} + +The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in the press) was to send an unequivocal message to lawyers advising clients in this space: It is not just your clients who might suffer if the content industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly. + +This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of its development, its cofounder (John Hummer), and general partner (Hank Barry).~{ See Joseph Menn, "Universal, EMI Sue Napster Investor," /{Los Angeles Times,}/ 23 April 2003. For a parallel argument about the effects on innovation in the distribution of music, see Janelle Brown, "The Music Revolution Will Not Be Digitized," Salon.com, 1 June 2001, available at link #42. See also Jon Healey, "Online Music Services Besieged," /{Los Angeles Times,}/ 28 May 2001. }~ The claim here, as well, was that the VC should have recognized the right of the content industry to control how the industry should develop. They should be held personally liable for funding a company whose business turned out to be beyond the law. Here again, the aim of the lawsuit is transparent: Any VC now recognizes that if you fund a company whose business is not approved of by the dinosaurs, you are at risk not just in the marketplace, but in the courtroom as well. Your investment buys you not only a company, it also buys you a lawsuit. So extreme has the environment become that even car manufacturers are afraid of technologies that touch content. In an article in /{Business 2.0}/, Rafe Needleman describes a discussion with BMW: +={Barry, Hank;copyright infringement lawsuits:distribution technology targeted in;BMW+1;cars, MP3 sound systems in+1;EMI;Hummer, John;Hummer Winblad;MP3 players;Napster:venture capital for;Needleman, Raffe+1;Universal Music Group;venture capitalists} + +_1 I asked why, with all the storage capacity and computer power in the car, there was no way to play MP3 files. I was told that BMW engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this forward for release stateside. Even today, no new cars are sold in the United States with bona fide MP3 players. ..."~{ Rafe Needleman, "Driving in Cars with MP3s," /{Business 2.0,}/ 16 June 2003, available at link #43. I am grateful to Dr. Mohammad Al-Ubaydli for this example. }~ + +This is the world of the mafia - filled with "your money or your life" offers, governed in the end not by courts but by the threats that the law empowers copyright holders to exercise. It is a system that will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly hard if that company is constantly threatened by litigation. + +The point is not that businesses should have a right to start illegal enterprises. The point is the definition of "illegal." The law is a mess of uncertainty. We have no good way to know how it should apply to new technologies. Yet by reversing our tradition of judicial deference, and by embracing the astonishingly high penalties that copyright law imposes, that uncertainty now yields a reality which is far more conservative than is right. If the law imposed the death penalty for parking tickets, we'd not only have fewer parking tickets, we'd also have much less driving. The same principle applies to innovation. If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity. +={market constraints+2;permission culture:transaction cost of+2;regulation:outsize penalties of;technology:legal murkiness on} + +The point is directly parallel to the crunchy-lefty point about fair use. Whatever the "real" law is, realism about the effect of law in both contexts is the same. This wildly punitive system of regulation will systematically stifle creativity and innovation. It will protect some industries and some creators, but it will harm industry and creativity generally. Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to produce an overregulated-regulated market. + +The building of a permission culture, rather than a free culture, is the first important way in which the changes I have described will burden innovation. A permission culture means a lawyer's culture - a culture in which the ability to create requires a call to your lawyer. Again, I am not antilawyer, at least when they're kept in their proper place. I am certainly not antilaw. But our profession has lost the sense of its limits. And leaders in our profession have lost an appreciation of the high costs that our profession imposes upon others. The inefficiency of the law is an embarrassment to our tradition. And while I believe our profession should therefore do everything it can to make the law more efficient, it should at least do everything it can to limit the reach of the law where the law is not doing any good. The transaction costs buried within a permission culture are enough to bury a wide range of creativity. Someone needs to do a lot of justifying to justify that result. + +!_ The uncertainty +of the law is one burden on innovation. There is a second burden that operates more directly. This is the effort by many in the content industry to use the law to directly regulate the technology of the Internet so that it better protects their content. +={Internet:efficient content distribution on+4} + +The motivation for this response is obvious. The Internet enables the efficient spread of content. That efficiency is a feature of the Inter-net's design. But from the perspective of the content industry, this feature is a "bug." The efficient spread of content means that content distributors have a harder time controlling the distribution of content. One obvious response to this efficiency is thus to make the Internet less efficient. If the Internet enables "piracy," then, this response says, we should break the kneecaps of the Internet. + +The examples of this form of legislation are many. At the urging of the content industry, some in Congress have threatened legislation that would require computers to determine whether the content they access is protected or not, and to disable the spread of protected content.~{ "Copyright and Digital Media in a Post-Napster World," GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School (2003), 33-35, available at link #44. }~ Congress has already launched proceedings to explore a mandatory "broadcast flag" that would be required on any device capable of transmitting digital video (i.e., a computer), and that would disable the copying of any content that is marked with a broadcast flag. Other members of Congress have proposed immunizing content providers from liability for technology they might deploy that would hunt down copyright violators and disable their machines.~{ GartnerG2, 26-27. }~ +={broadcast flag;Congress, U.S.:on copyright laws} + +In one sense, these solutions seem sensible. If the problem is the code, why not regulate the code to remove the problem. But any regulation of technical infrastructure will always be tuned to the particular technology of the day. It will impose significant burdens and costs on the technology, but will likely be eclipsed by advances around exactly those requirements. + +In March 2002, a broad coalition of technology companies, led by Intel, tried to get Congress to see the harm that such legislation would impose.~{ See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, 28 February 2002 (Entertainment). }~ Their argument was obviously not that copyright should not be protected. Instead, they argued, any protection should not do more harm than good. +={Congress, U.S.:on copyright laws+5;Intel} + +!_ There is one +more obvious way in which this war has harmed innovation - again, a story that will be quite familiar to the free market crowd. + +Copyright may be property, but like all property, it is also a form of regulation. It is a regulation that benefits some and harms others. When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors. + +As I described in chapter 10, despite this feature of copyright as regulation, and subject to important qualifications outlined by Jessica Litman in her book /{Digital Copyright}/,~{ Jessica Litman, /{Digital Copyright}/ (Amherst, N.Y.: Prometheus Books, 2001). }~ overall this history of copyright is not bad. As chapter 10 details, when new technologies have come along, Congress has struck a balance to assure that the new is protected from the old. Compulsory, or statutory, licenses have been one part of that strategy. Free use (as in the case of the VCR) has been another. +={cassette recording:VCRs;VCRs;Digital Copyright (Litman);Litman, Jessica;statutory licenses;copyright law:statutory licenses in} + +But that pattern of deference to new technologies has now changed with the rise of the Internet. Rather than striking a balance between the claims of a new technology and the legitimate rights of content creators, both the courts and Congress have imposed legal restrictions that will have the effect of smothering the new to benefit the old. + +The response by the courts has been fairly universal.~{ The only circuit court exception is found in /{Recording Industry Association of America (RIAA) v. Diamond Multimedia Systems,}/ 180 F. 3d 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that makers of a portable MP3 player were not liable for contributory copyright infringement for a device that is unable to record or redistribute music (a device whose only copying function is to render portable a music file already stored on a user's hard drive). At the district court level, the only exception is found in /{Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,}/ 259 F. Supp. 2d 1029 (C.D. Cal., 2003), where the court found the link between the distributor and any given user's conduct too attenuated to make the distributor liable for contributory or vicarious infringement liability. }~ It has been mirrored in the responses threatened and actually implemented by Congress. I won't catalog all of those responses here.~{ For example, in July 2002, Representative Howard Berman introduced the Peer- to-Peer Piracy Prevention Act (H.R. 5211), which would immunize copyright holders from liability for damage done to computers when the copyright holders use technology to stop copyright infringement. In August 2002, Representative Billy Tauzin introduced a bill to mandate that technologies capable of rebroadcasting digital copies of films broadcast on TV (i.e., computers) respect a "broadcast flag" that would disable copying of that content. And in March of the same year, Senator Fritz Hollings introduced the Consumer Broadband and Digital Television Promotion Act, which mandated copyright protection technology in all digital media devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster World," 27 June 2003, 33-34, available at link #44. }~ But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio. +={Internet:radio on+18;radio:on Internet+18} + +As I described in chapter 4, when a radio station plays a song, the recording artist doesn't get paid for that "radio performance" unless he or she is also the composer. So, for example if Marilyn Monroe had recorded a version of "Happy Birthday" - to memorialize her famous performance before President Kennedy at Madison Square Garden - then whenever that recording was played on the radio, the current copyright owners of "Happy Birthday" would get some money, whereas Marilyn Monroe would not. +={artists:recording industry payments to+1;copyright law:on music recordings+1;Kennedy, John F.;Monroe, Marilyn;radio:music recordings played on+1;recording industry:artist remuneration in+1;recording industry:copyright protections in} + +The reasoning behind this balance struck by Congress makes some sense. The justification was that radio was a kind of advertising. The recording artist thus benefited because by playing her music, the radio station was making it more likely that her records would be purchased. Thus, the recording artist got something, even if only indirectly. Probably this reasoning had less to do with the result than with the power of radio stations: Their lobbyists were quite good at stopping any efforts to get Congress to require compensation to the recording artists. + +Enter Internet radio. Like regular radio, Internet radio is a technology to stream content from a broadcaster to a listener. The broadcast travels across the Internet, not across the ether of radio spectrum. Thus, I can "tune in" to an Internet radio station in Berlin while sitting in San Francisco, even though there's no way for me to tune in to a regular radio station much beyond the San Francisco metropolitan area. + +This feature of the architecture of Internet radio means that there are potentially an unlimited number of radio stations that a user could tune in to using her computer, whereas under the existing architecture for broadcast radio, there is an obvious limit to the number of broadcasters and clear broadcast frequencies. Internet radio could therefore be more competitive than regular radio; it could provide a wider range of selections. And because the potential audience for Internet radio is the whole world, niche stations could easily develop and market their content to a relatively large number of users worldwide. According to some estimates, more than eighty million users worldwide have tuned in to this new form of radio. + +Internet radio is thus to radio what FM was to AM. It is an improvement potentially vastly more significant than the FM improvement over AM, since not only is the technology better, so, too, is the competition. Indeed, there is a direct parallel between the fight to establish FM radio and the fight to protect Internet radio. As one author describes Howard Armstrong's struggle to enable FM radio, +={Armstrong, Edwin Howard+2;FM radio+2;radio:FM spectrum of+2} + +_1 An almost unlimited number of FM stations was possible in the shortwaves, thus ending the unnatural restrictions imposed on radio in the crowded longwaves. If FM were freely developed, the number of stations would be limited only by economics and competition rather than by technical restrictions. ... Armstrong likened the situation that had grown up in radio to that following the invention of the printing press, when governments and ruling interests attempted to control this new instrument of mass communications by imposing restrictive licenses on it. This tyranny was broken only when it became possible for men freely to acquire printing presses and freely to run them. FM in this sense was as great an invention as the printing presses, for it gave radio the opportunity to strike off its shackles.~{ Lessing, 239. }~ + +This potential for FM radio was never realized - not because Armstrong was wrong about the technology, but because he underestimated the power of "vested interests, habits, customs and legislation"~{ Ibid., 229. }~ to retard the growth of this competing technology. + +Now the very same claim could be made about Internet radio. For again, there is no technical limitation that could restrict the number of Internet radio stations. The only restrictions on Internet radio are those imposed by the law. Copyright law is one such law. So the first question we should ask is, what copyright rules would govern Internet radio? + +But here the power of the lobbyists is reversed. Internet radio is a new industry. The recording artists, on the other hand, have a very powerful lobby, the RIAA. Thus when Congress considered the phenomenon of Internet radio in 1995, the lobbyists had primed Congress to adopt a different rule for Internet radio than the rule that applies to terrestrial radio. While terrestrial radio does not have to pay our hypothetical Marilyn Monroe when it plays her hypothetical recording of "Happy Birthday" on the air, /{Internet radio does}/. Not only is the law not neutral toward Internet radio - the law actually burdens Internet radio more than it burdens terrestrial radio. +={artists:recording industry payments to+1;Congress, U.S.:on copyright laws;Congress, U.S.:on radio|on recording industry;recording industry:artist remuneration in+1;recording industry:radio broadcast and+1|Internet radio hampered by+9;Recording Industry Association of America (RIAA):on Internet radio fees+1|lobbying power of+1} + +This financial burden is not slight. As Harvard law professor William Fisher estimates, if an Internet radio station distributed ad-free popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be over $1 million a year.~{ This example was derived from fees set by the original Copyright Arbitration Royalty Panel (CARP) proceedings, and is drawn from an example offered by Professor William Fisher. Conference Proceedings, iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain submitted testimony in the CARP proceeding that was ultimately rejected. See Jonathan Zittrain, Digital Performance Right in Sound Recordings and Ephemeral Recordings, Docket No. 2000- 9, CARP DTRA 1 and 2, available at link #45. For an excellent analysis making a similar point, see Randal C. Picker, "Copyright as Entry Policy: The Case of Digital Distribution," /{Antitrust Bulletin}/ (Summer/Fall 2002): 461: "This was not confusion, these are just old- fashioned entry barriers. Analog radio stations are protected from digital entrants, reducing entry in radio and diversity. Yes, this is done in the name of getting royalties to copyright holders, but, absent the play of powerful interests, that could have been done in a media-neutral way." }~ A regular radio station broadcasting the same content would pay no equivalent fee. +={Fisher, William} + +The burden is not financial only. Under the original rules that were proposed, an Internet radio station (but not a terrestrial radio station) would have to collect the following data from /{every listening transaction}/: + +group{ + + 1. name of the service; + + 2. channel of the program (AM/FM stations use station ID); + + 3. type of program (archived/looped/live); + + 4. date of transmission; + + 5. time of transmission; + + 6. time zone of origination of transmission; + + 7. numeric designation of the place of the sound recording within the program; + + 8. duration of transmission (to nearest second); + + 9. sound recording title; + + 10. ISRC code of the recording; + + 11. release year of the album per copyright notice and in the case of compilation albums, the release year of the album and copyright date of the track; + + 12. featured recording artist; + + 13. retail album title; + + 14. recording label; + + 15. UPC code of the retail album; + + 16. catalog number; + + 17. copyright owner information; + + 18. musical genre of the channel or program (station format); + + 19. name of the service or entity; + + 20. channel or program; + + 21. date and time that the user logged in (in the user's time zone); + + 22. date and time that the user logged out (in the user's time zone); + + 23. time zone where the signal was received (user); + + 24. Unique User identifier; + + 25. the country in which the user received the transmissions. + +}group + +The Librarian of Congress eventually suspended these reporting requirements, pending further study. And he also changed the original rates set by the arbitration panel charged with setting rates. But the basic difference between Internet radio and terrestrial radio remains: Internet radio has to pay a /{type of copyright fee}/ that terrestrial radio does not. +={Library of Congress} + +Why? What justifies this difference? Was there any study of the economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? + +In a rare bit of candor, one RIAA expert admitted what seemed obvious to everyone at the time. As Alex Alben, vice president for Public Policy at Real Networks, told me, +={Alben, Alex+2;Recording Industry Association of America (RIAA):on Internet radio fees+2;artists:recording industry payments to+2;recording industry:artist remuneration in+2} + +_1 The RIAA, which was representing the record labels, presented some testimony about what they thought a willing buyer would pay to a willing seller, and it was much higher. It was ten times higher than what radio stations pay to perform the same songs for the same period of time. And so the attorneys representing the webcasters asked the RIAA, ... "How do you come up with a rate that's so much higher? Why is it worth more than radio? Because here we have hundreds of thousands of webcasters who want to pay, and that should establish the market rate, and if you set the rate so high, you're going to drive the small webcasters out of business. ..." + +_1 And the RIAA experts said, "Well, we don't really model this as an industry with thousands of webcasters, /{we think it should be an industry with, you know, five or seven big players who can pay a high rate and it's a stable, predictable market.}/" (Emphasis added.) + +Translation: The aim is to use the law to eliminate competition, so that this platform of potentially immense competition, which would cause the diversity and range of content available to explode, would not cause pain to the dinosaurs of old. There is no one, on either the right or the left, who should endorse this use of the law. And yet there is practically no one, on either the right or the left, who is doing anything effective to prevent it. + +2~ Corrupting Citizens +={copyright law:illegal behavior as broad response to+33;law:citizen respect for+33;prohibition, citizen rebellion against+33;regulation:rule of law degraded by excess of+33} + +Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables. + +In addition to these important harms, there is one more that was important to our forebears, but seems forgotten today. Overregulation corrupts citizens and weakens the rule of law. + +The war that is being waged today is a war of prohibition. As with every war of prohibition, it is targeted against the behavior of a very large number of citizens. According to /{The New York Times}/, 43 million Americans downloaded music in May 2002.~{ Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew Internet and American Life Project (24 April 2001), available at link #46. The Pew Internet and American Life Project reported that 37 million Americans had downloaded music files from the Internet by early 2001. }~ According to the RIAA, the behavior of those 43 million Americans is a felony. We thus have a set of rules that transform 20 percent of America into criminals. As the RIAA launches lawsuits against not only the Napsters and Kazaas of the world, but against students building search engines, and increasingly against ordinary users downloading content, the technologies for sharing will advance to further protect and hide illegal use. It is an arms race or a civil war, with the extremes of one side inviting a more extreme response by the other. +={Internet:music files downloaded from;copyright infringement lawsuits:individual defendants intimidated by+1|in recording industry+1;recording industry:copyright infringement lawsuits of+1;Recording Industry Association of America (RIAA):copyright infringement lawsuits filed by+1|intimidation tactics of+1} + +The content industry's tactics exploit the failings of the American legal system. When the RIAA brought suit against Jesse Jordan, it knew that in Jordan it had found a scapegoat, not a defendant. The threat of having to pay either all the money in the world in damages ($15,000,000) or almost all the money in the world to defend against paying all the money in the world in damages ($250,000 in legal fees) led Jordan to choose to pay all the money he had in the world ($12,000) to make the suit go away. The same strategy animates the RIAA's suits against individual users. In September 2003, the RIAA sued 261 individuals - including a twelve-year-old girl living in public housing and a seventy-year-old man who had no idea what file sharing was.~{ Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," /{Los Angeles Times,}/ 10 September 2003, Business. }~ As these scapegoats discovered, it will always cost more to defend against these suits than it would cost to simply settle. (The twelve year old, for example, like Jesse Jordan, paid her life savings of $2,000 to settle the case.) Our law is an awful system for defending rights. It is an embarrassment to our tradition. And the consequence of our law as it is, is that those with the power can use the law to quash any rights they oppose. +={Jordan, Jesse} + +Wars of prohibition are nothing new in America. This one is just something more extreme than anything we've seen before. We experimented with alcohol prohibition, at a time when the per capita consumption of alcohol was 1.5 gallons per capita per year. The war against drinking initially reduced that consumption to just 30 percent of its preprohibition levels, but by the end of prohibition, consumption was up to 70 percent of the preprohibition level. Americans were drinking just about as much, but now, a vast number were criminals.~{ Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During Prohibition," /{American Economic Review}/ 81, no. 2 (1991): 242. }~ We have launched a war on drugs aimed at reducing the consumption of regulated narcotics that 7 percent (or 16 million) Americans now use.~{ National Drug Control Policy: Hearing Before the House Government Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John P. Walters, director of National Drug Control Policy). }~ That is a drop from the high (so to speak) in 1979 of 14 percent of the population. We regulate automobiles to the point where the vast majority of Americans violate the law every day. We run such a complex tax system that a majority of cash businesses regularly cheat.~{ See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax Compliance," /{Journal of Economic Literature}/ 36 (1998): 818 (survey of compliance literature). }~ We pride ourselves on our "free society," but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law. +={alcohol prohibition+1;drugs:illegal+1;tax system+1} + +This state of affairs is not without consequence. It is a particularly salient issue for teachers like me, whose job it is to teach law students about the importance of "ethics." As my colleague Charlie Nesson told a class at Stanford, each year law schools admit thousands of students who have illegally downloaded music, illegally consumed alcohol and sometimes drugs, illegally worked without paying taxes, illegally driven cars. These are kids for whom behaving illegally is increasingly the norm. And then we, as law professors, are supposed to teach them how to behave ethically - how to say no to bribes, or keep client funds separate, or honor a demand to disclose a document that will mean that your case is over. Generations of Americans - more significantly in some parts of America than in others, but still, everywhere in America today - can't live their lives both normally and legally, since "normally" entails a certain degree of illegality. +={ethics;law schools;Nesson, Charlie} + +The response to this general illegality is either to enforce the law more severely or to change the law. We, as a society, have to learn how to make that choice more rationally. Whether a law makes sense depends, in part, at least, upon whether the costs of the law, both intended and collateral, outweigh the benefits. If the costs, intended and collateral, do outweigh the benefits, then the law ought to be changed. Alternatively, if the costs of the existing system are much greater than the costs of an alternative, then we have a good reason to consider the alternative. + +My point is not the idiotic one: Just because people violate a law, we should therefore repeal it. Obviously, we could reduce murder statistics dramatically by legalizing murder on Wednesdays and Fridays. But that wouldn't make any sense, since murder is wrong every day of the week. A society is right to ban murder always and everywhere. + +My point is instead one that democracies understood for generations, but that we recently have learned to forget. The rule of law depends upon people obeying the law. The more often, and more repeatedly, we as citizens experience violating the law, the less we respect the law. Obviously, in most cases, the important issue is the law, not respect for the law. I don't care whether the rapist respects the law or not; I want to catch and incarcerate the rapist. But I do care whether my students respect the law. And I do care if the rules of law sow increasing disrespect because of the extreme of regulation they impose. Twenty million Americans have come of age since the Internet introduced this different idea of "sharing." We need to be able to call these twenty million Americans "citizens," not "felons." + +When at least forty-three million citizens download content from the Internet, and when they use tools to combine that content in ways unauthorized by copyright holders, the first question we should be asking is not how best to involve the FBI. The first question should be whether this particular prohibition is really necessary in order to achieve the proper ends that copyright law serves. Is there another way to assure that artists get paid without transforming forty-three million Americans into felons? Does it make sense if there are other ways to assure that artists get paid without transforming America into a nation of felons? + +This abstract point can be made more clear with a particular example. + +We all own CDs. Many of us still own phonograph records. These pieces of plastic encode music that in a certain sense we have bought. The law protects our right to buy and sell that plastic: It is not a copyright infringement for me to sell all my classical records at a used record store and buy jazz records to replace them. That "use" of the recordings is free. + +But as the MP3 craze has demonstrated, there is another use of phonograph records that is effectively free. Because these recordings were made without copy-protection technologies, I am "free" to copy, or "rip," music from my records onto a computer hard disk. Indeed, Apple Corporation went so far as to suggest that "freedom" was a right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn" capacities of digital technologies. +={Apple Corporation+1;Rip, Mix, Burn technologies+1;technology:cut-and-paste culture enabled by} + +This "use" of my records is certainly valuable. I have begun a large process at home of ripping all of my and my wife's CDs, and storing them in one archive. Then, using Apple's iTunes, or a wonderful program called Andromeda, we can build different play lists of our music: Bach, Baroque, Love Songs, Love Songs of Significant Others - the potential is endless. And by reducing the costs of mixing play lists, these technologies help build a creativity with play lists that is itself independently valuable. Compilations of songs are creative and meaningful in their own right. +={Andromeda} + +This use is enabled by unprotected media - either CDs or records. But unprotected media also enable file sharing. File sharing threatens (or so the content industry believes) the ability of creators to earn a fair return from their creativity. And thus, many are beginning to experiment with technologies to eliminate unprotected media. These technologies, for example, would enable CDs that could not be ripped. Or they might enable spy programs to identify ripped content on people's machines. +={CDs:mix technology and+1;technology:copyright enforcement controlled by+1;copyright law:technology as automatic enforcer of} + +If these technologies took off, then the building of large archives of your own music would become quite difficult. You might hang in hacker circles, and get technology to disable the technologies that protect the content. Trading in those technologies is illegal, but maybe that doesn't bother you much. In any case, for the vast majority of people, these protection technologies would effectively destroy the archiving use of CDs. The technology, in other words, would force us all back to the world where we either listened to music by manipulating pieces of plastic or were part of a massively complex "digital rights management" system. + +If the only way to assure that artists get paid were the elimination of the ability to freely move content, then these technologies to interfere with the freedom to move content would be justifiable. But what if there were another way to assure that artists are paid, without locking down any content? What if, in other words, a different system could assure compensation to artists while also preserving the freedom to move content easily? + +My point just now is not to prove that there is such a system. I offer a version of such a system in the last chapter of this book. For now, the only point is the relatively uncontroversial one: If a different system achieved the same legitimate objectives that the existing copyright system achieved, but left consumers and creators much more free, then we'd have a very good reason to pursue this alternative - namely, freedom. The choice, in other words, would not be between property and piracy; the choice would be between different property systems and the freedoms each allowed. +={copyright law:commercial creativity as primary purpose of+1|as protection of creators+1} + +I believe there is a way to assure that artists are paid without turning forty-three million Americans into felons. But the salient feature of this alternative is that it would lead to a very different market for producing and distributing creativity. The dominant few, who today control the vast majority of the distribution of content in the world, would no longer exercise this extreme of control. Rather, they would go the way of the horse-drawn buggy. + +Except that this generation's buggy manufacturers have already saddled Congress, and are riding the law to protect themselves against this new form of competition. For them the choice is between forty-three million Americans as criminals and their own survival. + +It is understandable why they choose as they do. It is not understandable why we as a democracy continue to choose as we do. Jack Valenti is charming; but not so charming as to justify giving up a tradition as deep and important as our tradition of free culture. +={Valenti, Jack} + +!_ There's one more +aspect to this corruption that is particularly important to civil liberties, and follows directly from any war of prohibition. As Electronic Frontier Foundation attorney Fred von Lohmann describes, this is the "collateral damage" that "arises whenever you turn a very large percentage of the population into criminals." This is the collateral damage to civil liberties generally. +={civil liberties+11;Electronic Frontier Foundation;von Lohmann, Fred+2} + +"If you can treat someone as a putative lawbreaker," von Lohmann explains, + +_1 then all of a sudden a lot of basic civil liberty protections evaporate to one degree or another. ... If you're a copyright infringer, how can you hope to have any privacy rights? If you're a copyright infringer, how can you hope to be secure against seizures of your computer? How can you hope to continue to receive Internet access? ... Our sensibilities change as soon as we think, "Oh, well, but that person's a criminal, a lawbreaker." Well, what this campaign against file sharing has done is turn a remarkable percentage of the American Internet-using population into "law-breakers." +={privacy rights+3} + +And the consequence of this transformation of the American public into criminals is that it becomes trivial, as a matter of due process, to effectively erase much of the privacy most would presume. + +Users of the Internet began to see this generally in 2003 as the RIAA launched its campaign to force Internet service providers to turn over the names of customers who the RIAA believed were violating copyright law. Verizon fought that demand and lost. With a simple request to a judge, and without any notice to the customer at all, the identity of an Internet user is revealed. +={Internet:user identities released by service providers of+4;ISPs (Internet service providers), user identities revealed by+4;Recording Industry Association of America (RIAA):ISP user identities sought by+4;Verizon Internet Services} + +The RIAA then expanded this campaign, by announcing a general strategy to sue individual users of the Internet who are alleged to have downloaded copyrighted music from file-sharing systems. But as we've seen, the potential damages from these suits are astronomical: If a family's computer is used to download a single CD's worth of music, the family could be liable for $2 million in damages. That didn't stop the RIAA from suing a number of these families, just as they had sued Jesse Jordan.~{ See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," /{Washington Post,}/ 10 September 2003, E1; Chris Cobbs, "Worried Parents Pull Plug on File 'Stealing'; With the Music Industry Cracking Down on File Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued," /{Orlando Sentinel Tribune,}/ 30 August 2003, C1; Jefferson Graham, "Recording Industry Sues Parents," /{USA Today,}/ 15 September 2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either," /{New York Times,}/ 25 September 2003, C1; Margo Varadi, "Is Brianna a Criminal?" /{Toronto Star,}/ 18 September 2003, P7. }~ +={Jordan, Jesse;copyright infringement lawsuits:exaggerated claims of+3;peer-to-peer (p2p) file sharing:regulatory balance lost in+6;Recording Industry Association of America (RIAA):intimidation tactics of+3} + +Even this understates the espionage that is being waged by the RIAA. A report from CNN late last summer described a strategy the RIAA had adopted to track Napster users.~{ See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some Methods Used," CNN.com, available at link #47. }~ Using a sophisticated hashing algorithm, the RIAA took what is in effect a fingerprint of every song in the Napster catalog. Any copy of one of those MP3s will have the same "fingerprint." +={Napster:recording industry tracking users of+2} + +So imagine the following not-implausible scenario: Imagine a friend gives a CD to your daughter - a collection of songs just like the cassettes you used to make as a kid. You don't know, and neither does your daughter, where these songs came from. But she copies these songs onto her computer. She then takes her computer to college and connects it to a college network, and if the college network is "cooperating" with the RIAA's espionage, and she hasn't properly protected her content from the network (do you know how to do that yourself ?), then the RIAA will be able to identify your daughter as a "criminal." And under the rules that universities are beginning to deploy,~{ See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," /{Boston Globe,}/ 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued over Music Sites; Industry Group Targets File Sharing at Colleges," /{Washington Post,}/ 4 April 2003, E1; Elizabeth Armstrong, "Students 'Rip, Mix, Burn' at Their Own Risk," /{Christian Science Monitor,}/ 2 September 2003, 20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over; Lawsuit Possible," /{Chicago Tribune,}/ 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on Universities," /{Internet News,}/ 30 January 2003, available at link #48; Benny Evangelista, "Download Warning 101: Freshman Orientation This Fall to Include Record Industry Warnings Against File Sharing," /{San Francisco Chronicle,}/ 11 August 2003, E11; "Raid, Letters Are Weapons at Universities," /{USA Today,}/ 26 September 2000, 3D. }~ your daughter can lose the right to use the university's computer network. She can, in some cases, be expelled. +={university computer networks, p2p sharing on+1} + +Now, of course, she'll have the right to defend herself. You can hire a lawyer for her (at $300 per hour, if you're lucky), and she can plead that she didn't know anything about the source of the songs or that they came from Napster. And it may well be that the university believes her. But the university might not believe her. It might treat this "contraband" as presumptive of guilt. And as any number of college students have already learned, our presumptions about innocence disappear in the middle of wars of prohibition. This war is no different. + +Says von Lohmann, +={von Lohmann, Fred+1} + +_1 So when we're talking about numbers like forty to sixty million Americans that are essentially copyright infringers, you create a situation where the civil liberties of those people are very much in peril in a general matter. [I don't] think [there is any] analog where you could randomly choose any person off the street and be confident that they were committing an unlawful act that could put them on the hook for potential felony liability or hundreds of millions of dollars of civil liability. Certainly we all speed, but speeding isn't the kind of an act for which we routinely forfeit civil liberties. Some people use drugs, and I think that's the closest analog, [but] many have noted that the war against drugs has eroded all of our civil liberties because it's treated so many Americans as criminals. Well, I think it's fair to say that file sharing is an order of magnitude larger number of Americans than drug use. ... If forty to sixty million Americans have become lawbreakers, then we're really on a slippery slope to lose a lot of civil liberties for all forty to sixty million of them." +={driving speed, constraints on;speeding, constraints on;drugs:illegal} + +When forty to sixty million Americans are considered "criminals" under the law, and when the law could achieve the same objective - securing rights to authors - without these millions being considered "criminals," who is the villain? Americans or the law? Which is American, a constant war on our own people or a concerted effort through our democracy to change our law? + +:B~ BALANCES + +1~intro_balances [Intro]-# + +!_ So here's +the picture: You're standing at the side of the road. Your car is on fire. You are angry and upset because in part you helped start the fire. Now you don't know how to put it out. Next to you is a bucket, filled with gasoline. Obviously, gasoline won't put the fire out. + +As you ponder the mess, someone else comes along. In a panic, she grabs the bucket. Before you have a chance to tell her to stop - or before she understands just why she should stop - the bucket is in the air. The gasoline is about to hit the blazing car. And the fire that gasoline will ignite is about to ignite everything around. + +!_ A war +about copyright rages all around - and we're all focusing on the wrong thing. No doubt, current technologies threaten existing businesses. No doubt they may threaten artists. But technologies change. The industry and technologists have plenty of ways to use technology to protect themselves against the current threats of the Internet. This is a fire that if let alone would burn itself out. + +Yet policy makers are not willing to leave this fire to itself. Primed with plenty of lobbyists' money, they are keen to intervene to eliminate the problem they perceive. But the problem they perceive is not the real threat this culture faces. For while we watch this small fire in the corner, there is a massive change in the way culture is made that is happening all around. + +Somehow we have to find a way to turn attention to this more important and fundamental issue. Somehow we have to find a way to avoid pouring gasoline onto this fire. + +We have not found that way yet. Instead, we seem trapped in a simpler, binary view. However much many people push to frame this debate more broadly, it is the simple, binary view that remains. We rubberneck to look at the fire when we should be keeping our eyes on the road. + +This challenge has been my life these last few years. It has also been my failure. In the two chapters that follow, I describe one small brace of efforts, so far failed, to find a way to refocus this debate. We must understand these failures if we're to understand what success will require. + +1~ Chapter Thirteen: Eldred +={Eldred, Eric+10} + +!_ In 1995, +a father was frustrated that his daughters didn't seem to like Hawthorne. No doubt there was more than one such father, but at least one did something about it. Eric Eldred, a retired computer programmer living in New Hampshire, decided to put Hawthorne on the Web. An electronic version, Eldred thought, with links to pictures and explanatory text, would make this nineteenth-century author's work come alive. +={Hawthorne, Nathaniel+3} + +It didn't work - at least for his daughters. They didn't find Hawthorne any more interesting than before. But Eldred's experiment gave birth to a hobby, and his hobby begat a cause: Eldred would build a library of public domain works by scanning these works and making them available for free. +={libraries:of public-domain literature+4;public domain:library of works derived from+4} + +Eldred's library was not simply a copy of certain public domain works, though even a copy would have been of great value to people across the world who can't get access to printed versions of these works. Instead, Eldred was producing derivative works from these public domain works. Just as Disney turned Grimm into stories more accessible to the twentieth century, Eldred transformed Hawthorne, and many others, into a form more accessible - technically accessible - today. +={Disney, Walt+1;Grimm fairy tales} + +Eldred's freedom to do this with Hawthorne's work grew from the same source as Disney's. Hawthorne's /{Scarlet Letter}/ had passed into the public domain in 1907. It was free for anyone to take without the permission of the Hawthorne estate or anyone else. Some, such as Dover Press and Penguin Classics, take works from the public domain and produce printed editions, which they sell in bookstores across the country. Others, such as Disney, take these stories and turn them into animated cartoons, sometimes successfully (/{Cinderella}/), sometimes not (/{The Hunchback of Notre Dame}/, /{Treasure Planet}/). These are all commercial publications of public domain works. +={Scarlet Letter, The (Hawthorne)} + +The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally thousands of others. Hundreds of thousands from across the world have discovered this platform of expression and now use it to share works that are, by law, free for the taking. This has produced what we might call the "noncommercial publishing industry," which before the Internet was limited to people with large egos or with political or social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally.~{ There's a parallel here with pornography that is a bit hard to describe, but it's a strong one. One phenomenon that the Internet created was a world of noncommercial pornographers - people who were distributing porn but were not making money directly or indirectly from that distribution. Such a class didn't exist before the Internet came into being because the costs of distributing porn were so high. Yet this new class of distributors got special attention in the Supreme Court, when the Court struck down the Communications Decency Act of 1996. It was partly because of the burden on noncommercial speakers that the statute was found to exceed Congress's power. The same point could have been made about noncommercial publishers after the advent of the Internet. The Eric Eldreds of the world before the Internet were extremely few. Yet one would think it at least as important to protect the Eldreds of the world as to protect noncommercial pornographers. }~ + +As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of poems /{New Hampshire}/ was slated to pass into the public domain. Eldred wanted to post that collection in his free public library. But Congress got in the way. As I described in chapter 10, in 1998, for the eleventh time in forty years, Congress extended the terms of existing copyrights - this time by twenty years. Eldred would not be free to add any works more recent than 1923 to his collection until 2019. Indeed, no copyrighted work would pass into the public domain until that year (and not even then, if Congress extends the term again). By contrast, in the same period, more than 1 million patents will pass into the public domain. +={Congress, U.S.:copyright terms extended by+23;copyright:duration of+23;copyright law:term extensions in+23;Frost, Robert;New Hampshire (Frost);patents:in public domain|future patents vs. future copyrights in+1} + +This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in memory of the congressman and former musician Sonny Bono, who, his widow, Mary Bono, says, believed that "copyrights should be forever."~{ The full text is: "Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998). }~ +={Bono, Mary;Bono, Sonny;copyright:in perpetuity+5;Sonny Bono Copyright Term Extension Act (CTEA) (1998)+1} + +Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he would publish as planned, CTEA notwithstanding. But because of a second law passed in 1998, the NET (No Electronic Theft) Act, his act of publishing would make Eldred a felon - whether or not anyone complained. This was a dangerous strategy for a disabled programmer to undertake. +={copyright law:felony punishment for infringement of;NET (No Electronic Theft) Act (1988);No Electronic Theft (NET) Act (1988);peer-to-peer (p2p) file sharing:felony punishments for} + +It was here that I became involved in Eldred's battle. I was a constitutional scholar whose first passion was constitutional interpretation. And though constitutional law courses never focus upon the Progress Clause of the Constitution, it had always struck me as importantly different. As you know, the Constitution says, +={Congress:constitutional powers of+3;Constitution, U.S.:Progress Clause of+2;Progress Clause+2;Lessig, Lawrence:Eldred case involvement of+2} + +_1 Congress has the power to promote the Progress of Science ... by securing for limited Times to Authors ... exclusive Right to their ... Writings. ..." + +As I've described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause granting power to Congress simply says Congress has the power to do something - for example, to regulate "commerce among the several states" or "declare War." But here, the "something" is something quite specific - to "promote ... Progress" - through means that are also specific - by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times." + +In the past forty years, Congress has gotten into the practice of extending existing terms of copyright protection. What puzzled me about this was, if Congress has the power to extend existing terms, then the Constitution's requirement that terms be "limited" will have no practical effect. If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids - perpetual terms "on the installment plan," as Professor Peter Jaszi so nicely put it. +={Jaszi, Peter} + +As an academic, my first response was to hit the books. I remember sitting late at the office, scouring on-line databases for any serious consideration of the question. No one had ever challenged Congress's practice of extending existing terms. That failure may in part be why Congress seemed so untroubled in its habit. That, and the fact that the practice had become so lucrative for Congress. Congress knows that copyright owners will be willing to pay a great deal of money to see their copyright terms extended. And so Congress is quite happy to keep this gravy train going. +={Lessig, Lawrence:Eldred case involvement of} + +For this is the core of the corruption in our present system of government."Corruption" not in the sense that representatives are bribed. Rather, "corruption" in the sense that the system induces the beneficiaries of Congress's acts to raise and give money to Congress to induce it to act. There's only so much time; there's only so much Congress can do. Why not limit its actions to those things it must do - and those things that pay? Extending copyright terms pays. + +If that's not obvious to you, consider the following: Say you're one of the very few lucky copyright owners whose copyright continues to make money one hundred years after it was created. The Estate of Robert Frost is a good example. Frost died in 1963. His poetry continues to be extraordinarily valuable. Thus the Robert Frost estate benefits greatly from any extension of copyright, since no publisher would pay the estate any money if the poems Frost wrote could be published by anyone for free. +={Frost, Robert+12} + +So imagine the Robert Frost estate is earning $100,000 a year from three of Frost's poems. And imagine the copyright for those poems is about to expire. You sit on the board of the Robert Frost estate. Your financial adviser comes to your board meeting with a very grim report: + +"Next year," the adviser announces, "our copyrights in works A, B, and C will expire. That means that after next year, we will no longer be receiving the annual royalty check of $100,000 from the publishers of those works. + +"There's a proposal in Congress, however," she continues, "that could change this. A few congressmen are floating a bill to extend the terms of copyright by twenty years. That bill would be extraordinarily valuable to us. So we should hope this bill passes." + +"Hope?" a fellow board member says. "Can't we be doing something about it?" + +"Well, obviously, yes," the adviser responds. "We could contribute to the campaigns of a number of representatives to try to assure that they support the bill." +={Congress, U.S.:lobbying of+8} + +You hate politics. You hate contributing to campaigns. So you want to know whether this disgusting practice is worth it. "How much would we get if this extension were passed?" you ask the adviser. "How much is it worth?" + +"Well," the adviser says, "if you're confident that you will continue to get at least $100,000 a year from these copyrights, and you use the 'discount rate' that we use to evaluate estate investments (6 percent), then this law would be worth $1,146,000 to the estate." + +You're a bit shocked by the number, but you quickly come to the correct conclusion: + +"So you're saying it would be worth it for us to pay more than $1,000,000 in campaign contributions if we were confident those contributions would assure that the bill was passed?" + +"Absolutely," the adviser responds. "It is worth it to you to contribute up to the 'present value' of the income you expect from these copyrights. Which for us means over $1,000,000." + +You quickly get the point - you as the member of the board and, I trust, you the reader. Each time copyrights are about to expire, every beneficiary in the position of the Robert Frost estate faces the same choice: If they can contribute to get a law passed to extend copyrights, they will benefit greatly from that extension. And so each time copyrights are about to expire, there is a massive amount of lobbying to get the copyright term extended. + +Thus a congressional perpetual motion machine: So long as legislation can be bought (albeit indirectly), there will be all the incentive in the world to buy further extensions of copyright. + +In the lobbying that led to the passage of the Sonny Bono Copyright Term Extension Act, this "theory" about incentives was proved real. Ten of the thirteen original sponsors of the act in the House received the maximum contribution from Disney's political action committee; in the Senate, eight of the twelve sponsors received contributions.~{ Associated Press, "Disney Lobbying for Copyright Extension No Mickey Mouse Effort; Congress OKs Bill Granting Creators 20 More Years," /{Chicago Tribune,}/ 17 October 1998, 22. }~ The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in the 1998 election cycle. They paid out more than $200,000 in campaign contributions.~{ See Nick Brown, "Fair Use No More?: Copyright in the Information Age," available at link #49. }~ Disney is estimated to have contributed more than $800,000 to reelection campaigns in the 1998 cycle.~{ Alan K. Ota, "Disney in Washington: The Mouse That Roars," /{Congressional Quarterly This Week,}/ 8 August 1990, available at link #50. }~ +={Disney, Inc.;film industry:trade association of;Motion Picture Association of America (MPAA);Recording Industry Association of America (RIAA):lobbying power of;Sonny Bono Copyright Term Extension Act (CTEA) (1998);Congress, U.S.:copyright terms extended by+13} + +!_ Constitutional law +is not oblivious to the obvious. Or at least, it need not be. So when I was considering Eldred's complaint, this reality about the never-ending incentives to increase the copyright term was central to my thinking. In my view, a pragmatic court committed to interpreting and applying the Constitution of our framers would see that if Congress has the power to extend existing terms, then there would be no effective constitutional requirement that terms be "limited." If they could extend it once, they would extend it again and again and again. +={Lessig, Lawrence:Eldred case involvement of+1;Constitution, U.S.:Progress Clause of;Eldred, Eric;copyright law:term extensions in+12} + +It was also my judgment that /{this}/ Supreme Court would not allow Congress to extend existing terms. As anyone close to the Supreme Court's work knows, this Court has increasingly restricted the power of Congress when it has viewed Congress's actions as exceeding the power granted to it by the Constitution. Among constitutional scholars, the most famous example of this trend was the Supreme Court's decision in 1995 to strike down a law that banned the possession of guns near schools. +={Congress, U.S.:Supreme Court restraint on+6;copyright law:Supreme Court case on term extension of+5;Supreme Court, U.S.:congressional actions restrained by+5|on copyright term extensions;guns+2;schools, gun possession near+2} + +Since 1937, the Supreme Court had interpreted Congress's granted powers very broadly; so, while the Constitution grants Congress the power to regulate only "commerce among the several states" (aka "interstate commerce"), the Supreme Court had interpreted that power to include the power to regulate any activity that merely affected interstate commerce. +={commerce, interstate+3;Congress, U.S.:constitutional powers of+5;interstate commerce+4} + +As the economy grew, this standard increasingly meant that there was no limit to Congress's power to regulate, since just about every activity, when considered on a national scale, affects interstate commerce. A Constitution designed to limit Congress's power was instead interpreted to impose no limit. + +The Supreme Court, under Chief Justice Rehnquist's command, changed that in /{United States v. Lopez}/. The government had argued that possessing guns near schools affected interstate commerce. Guns near schools increase crime, crime lowers property values, and so on. In the oral argument, the Chief Justice asked the government whether there was any activity that would not affect interstate commerce under the reasoning the government advanced. The government said there was not; if Congress says an activity affects interstate commerce, then that activity affects interstate commerce. The Supreme Court, the government said, was not in the position to second-guess Congress. +={Rehnquist, William H.+1;United States v. Lopez+1} + +"We pause to consider the implications of the government's arguments," the Chief Justice wrote.~{ /{United States v. Lopez,}/ 514 U.S. 549, 564 (1995). }~ If anything Congress says is interstate commerce must therefore be considered interstate commerce, then there would be no limit to Congress's power. The decision in /{Lopez}/ was reaffirmed five years later in /{United States v. Morrison}/.~{ /{United States v. Morrison,}/ 529 U.S. 598 (2000). }~ +={United States v. Morrison} + +If a principle were at work here, then it should apply to the Progress Clause as much as the Commerce Clause.~{ If it is a principle about enumerated powers, then the principle carries from one enumerated power to another. The animating point in the context of the Commerce Clause was that the interpretation offered by the government would allow the government unending power to regulate commerce - the limitation to interstate commerce notwithstanding. The same point is true in the context of the Copyright Clause. Here, too, the government's interpretation would allow the government unending power to regulate copyrights - the limitation to "limited times" notwithstanding. }~ And if it is applied to the Progress Clause, the principle should yield the conclusion that Congress can't extend an existing term. If Congress could extend an existing term, then there would be no "stopping point" to Congress's power over terms, though the Constitution expressly states that there is such a limit. Thus, the same principle applied to the power to grant copyrights should entail that Congress is not allowed to extend the term of existing copyrights. +={Constitution, U.S.:Progress Clause of|Commerce Clause of;copyright:duration of;Supreme Court, U.S.:congressional actions restrained by+2} + +/{If}/, that is, the principle announced in /{Lopez}/ stood for a principle. Many believed the decision in /{Lopez}/ stood for politics - a conservative Supreme Court, which believed in states' rights, using its power over Congress to advance its own personal political preferences. But I rejected that view of the Supreme Court's decision. Indeed, shortly after the decision, I wrote an article demonstrating the "fidelity" in such an interpretation of the Constitution. The idea that the Supreme Court decides cases based upon its politics struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians. +={Congress, U.S.:Supreme Court restraint on+3;United States v. Lopez} + +!_ Now let's pause +for a moment to make sure we understand what the argument in /{Eldred}/ was not about. By insisting on the Constitution's limits to copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious sense, he was fighting a kind of piracy - piracy of the public domain. When Robert Frost wrote his work and when Walt Disney created Mickey Mouse, the maximum copyright term was just fifty-six years. Because of interim changes, Frost and Disney had already enjoyed a seventy-five-year monopoly for their work. They had gotten the benefit of the bargain that the Constitution envisions: In exchange for a monopoly protected for fifty-six years, they created new work. But now these entities were using their power - expressed through the power of lobbyists' money - to get another twenty-year dollop of monopoly. That twenty-year dollop would be taken from the public domain. Eric Eldred was fighting a piracy that affects us all. +={Constitution, U.S.:copyright purpose established in;copyright:constitutional purpose of|duration of;Disney, Walt;Eldred, Eric+2;Frost, Robert;Mickey Mouse;public domain:protection of+2} + +Some people view the public domain with contempt. In their brief before the Supreme Court, the Nashville Songwriters Association wrote that the public domain is nothing more than "legal piracy."~{ Brief of the Nashville Songwriters Association, /{Eldred v. Ashcroft,}/ 537 U.S. 186 (2003) (No. 01-618), n.10, available at link #51. }~ But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter. +={Eldred v. Ashcroft;Constitution, U.S.:copyright purpose established in+1;copyright:constitutional purpose of+1;Nashville Songwriters Association} + +As we've seen, our constitutional system requires limits on copyright as a way to assure that copyright holders do not too heavily influence the development and distribution of our culture. Yet, as Eric Eldred discovered, we have set up a system that assures that copyright terms will be repeatedly extended, and extended, and extended. We have created the perfect storm for the public domain. Copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again. +={Eldred, Eric;copyright:duration of+2} + +!_ It is valuable +copyrights that are responsible for terms being extended. Mickey Mouse and "Rhapsody in Blue." These works are too valuable for copyright owners to ignore. But the real harm to our society from copyright extensions is not that Mickey Mouse remains Disney's. Forget Mickey Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s that have continuing commercial value. The real harm of term extension comes not from these famous works. The real harm is to the works that are not famous, not commercially exploited, and no longer available as a result. +={Mickey Mouse;Rhapsody in Blue (Gershwin);Frost, Robert} + +% added this Frost index reference + +If you look at the work created in the first twenty years (1923 to 1942) affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that work has any continuing commercial value. It was the copyright holders for that 2 percent who pushed the CTEA through. But the law and its effect were not limited to that 2 percent. The law extended the terms of copyright generally.~{ The figure of 2 percent is an extrapolation from the study by the Congressional Research Service, in light of the estimated renewal ranges. See Brief of Petitioners, /{Eldred v. Ashcroft,}/ 7, available at link #52. }~ +={Sonny Bono Copyright Term Extension Act (CTEA) (1998)} + +Think practically about the consequence of this extension - practically, as a businessperson, and not as a lawyer eager for more legal work. In 1930, 10,047 books were published. In 2000, 174 of those books were still in print. Let's say you were Brewster Kahle, and you wanted to make available to the world in your iArchive project the remaining 9,873. What would you have to do? +={Kahle, Brewster;archives, digital;Internet Archive} + +Well, first, you'd have to determine which of the 9,873 books were still under copyright. That requires going to a library (these data are not on-line) and paging through tomes of books, cross-checking the titles and authors of the 9,873 books with the copyright registration and renewal records for works published in 1930. That will produce a list of books still under copyright. + +Then for the books still under copyright, you would need to locate the current copyright owners. How would you do that? + +Most people think that there must be a list of these copyright owners somewhere. Practical people think this way. How could there be thousands and thousands of government monopolies without there being at least a list? +={copyright:no registration of works+5} + +But there is no list. There may be a name from 1930, and then in 1959, of the person who registered the copyright. But just think practically about how impossibly difficult it would be to track down thousands of such records - especially since the person who registered is not necessarily the current owner. And we're just talking about 1930! + +"But there isn't a list of who owns property generally," the apologists for the system respond. "Why should there be a list of copyright owners?" + +Well, actually, if you think about it, there /{are}/ plenty of lists of who owns what property. Think about deeds on houses, or titles to cars. And where there isn't a list, the code of real space is pretty good at suggesting who the owner of a bit of property is. (A swing set in your backyard is probably yours.) So formally or informally, we have a pretty good way to know who owns what tangible property. + +So: You walk down a street and see a house. You can know who owns the house by looking it up in the courthouse registry. If you see a car, there is ordinarily a license plate that will link the owner to the car. If you see a bunch of children's toys sitting on the front lawn of a house, it's fairly easy to determine who owns the toys. And if you happen to see a baseball lying in a gutter on the side of the road, look around for a second for some kids playing ball. If you don't see any kids, then okay: Here's a bit of property whose owner we can't easily determine. It is the exception that proves the rule: that we ordinarily know quite well who owns what property. + +Compare this story to intangible property. You go into a library. The library owns the books. But who owns the copyrights? As I've already described, there's no list of copyright owners. There are authors' names, of course, but their copyrights could have been assigned, or passed down in an estate like Grandma's old jewelry. To know who owns what, you would have to hire a private detective. The bottom line: The owner cannot easily be located. And in a regime like ours, in which it is a felony to use such property without the property owner's permission, the property isn't going to be used. +={copyright law:felony for infringement of} + +The consequence with respect to old books is that they won't be digitized, and hence will simply rot away on shelves. But the consequence for other creative works is much more dire. + +Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns the copyrights for the Laurel and Hardy films. Agee is a direct beneficiary of the Bono Act. The Laurel and Hardy films were made between 1921 and 1951. Only one of these films, /{The Lucky Dog}/, is currently out of copyright. But for the CTEA, films made after 1923 would have begun entering the public domain. Because Agee controls the exclusive rights for these popular films, he makes a great deal of money. According to one estimate, "Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo's silent films."~{ See David G. Savage, "High Court Scene of Showdown on Copyright Law," /{Los Angeles Times,}/ 6 October 2002; David Streitfeld, "Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking Down Copyright Extension," /{Orlando Sentinel Tribune,}/ 9 October 2002. }~ +={Agee, Michael+2;films:in public domain+12;Hal Roach Studios;Laurel and Hardy films;Lucky Dog, The;public domain:films in+12} + +Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this culture: selflessness. He argued in a brief before the Supreme Court that the Sonny Bono Copyright Term Extension Act will, if left standing, destroy a whole generation of American film. +={Sonny Bono Copyright Term Extension Act (CTEA) (1998)} + +His argument is straightforward. A tiny fraction of this work has any continuing commercial value. The rest - to the extent it survives at all - sits in vaults gathering dust. It may be that some of this work not now commercially valuable will be deemed to be valuable by the owners of the vaults. For this to occur, however, the commercial benefit from the work must exceed the costs of making the work available for distribution. + +We can't know the benefits, but we do know a lot about the costs. For most of the history of film, the costs of restoring film were very high; digital technology has lowered these costs substantially. While it cost more than $10,000 to restore a ninety-minute black-and-white film in 1993, it can now cost as little as $100 to digitize one hour of 8 mm film.~{ Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, /{Eldred v. Ashcroft,}/ 537 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet Archive, /{Eldred v. Ashcroft,}/ available at link #53. }~ +={films:restoration of+4} + +Restoration technology is not the only cost, nor the most important. Lawyers, too, are a cost, and increasingly, a very important one. In addition to preserving the film, a distributor needs to secure the rights. And to secure the rights for a film that is under copyright, you need to locate the copyright owner. +={films:multiple copyrights associated with+1} + +Or more accurately, /{owners}/. As we've seen, there isn't only a single copyright associated with a film; there are many. There isn't a single person whom you can contact about those copyrights; there are as many as can hold the rights, which turns out to be an extremely large number. Thus the costs of clearing the rights to these films is exceptionally high. + +"But can't you just restore the film, distribute it, and then pay the copyright owner when she shows up?" Sure, if you want to commit a felony. And even if you're not worried about committing a felony, when she does show up, she'll have the right to sue you for all the profits you have made. So, if you're successful, you can be fairly confident you'll be getting a call from someone's lawyer. And if you're not successful, you won't make enough to cover the costs of your own lawyer. Either way, you have to talk to a lawyer. And as is too often the case, saying you have to talk to a lawyer is the same as saying you won't make any money. + +For some films, the benefit of releasing the film may well exceed these costs. But for the vast majority of them, there is no way the benefit would outweigh the legal costs. Thus, for the vast majority of old films, Agee argued, the film will not be restored and distributed until the copyright expires. +={Agee, Michael} + +But by the time the copyright for these films expires, the film will have expired. These films were produced on nitrate-based stock, and nitrate stock dissolves over time. They will be gone, and the metal canisters in which they are now stored will be filled with nothing more than dust. + +!_ Of all the +creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. For that tiny fraction, the copyright creates incentives to produce and distribute the creative work. For that tiny fraction, the copyright acts as an "engine of free expression." + +But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. As I've indicated, most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving. And when a creative work falls out of favor with the commercial distributors, the commercial life ends. +={culture:commercial vs. noncommercial+1} + +Yet that doesn't mean the life of the creative work ends. We don't keep libraries of books in order to compete with Barnes & Noble, and we don't have archives of films because we expect people to choose between spending Friday night watching new movies and spending Friday night watching a 1930 news documentary. The noncommercial life of culture is important and valuable - for entertainment but also, and more importantly, for knowledge. To understand who we are, and where we came from, and how we have made the mistakes that we have, we need to have access to this history. + +Copyrights in this context do not drive an engine of free expression. In this context, there is no need for an exclusive right. Copyrights in this context do no good. + +Yet, for most of our history, they also did little harm. For most of our history, when a work ended its commercial life, there was no /{copyright-related use}/ that would be inhibited by an exclusive right. When a book went out of print, you could not buy it from a publisher. But you could still buy it from a used book store, and when a used book store sells it, in America, at least, there is no need to pay the copyright owner anything. Thus, the ordinary use of a book after its commercial life ended was a use that was independent of copyright law. + +The same was effectively true of film. Because the costs of restoring a film - the real economic costs, not the lawyer costs - were so high, it was never at all feasible to preserve or restore film. Like the remains of a great dinner, when it's over, it's over. Once a film passed out of its commercial life, it may have been archived for a bit, but that was the end of its life so long as the market didn't have more to offer. +={films:restoration of} + +In other words, though copyright has been relatively short for most of our history, long copyrights wouldn't have mattered for the works that lost their commercial value. Long copyrights for these works would not have interfered with anything. + +But this situation has now changed. + +One crucially important consequence of the emergence of digital technologies is to enable the archive that Brewster Kahle dreams of. Digital technologies now make it possible to preserve and give access to all sorts of knowledge. Once a book goes out of print, we can now imagine digitizing it and making it available to everyone, forever. Once a film goes out of distribution, we could digitize it and make it available to everyone, forever. Digital technologies give new life to copyrighted material after it passes out of its commercial life. It is now possible to preserve and assure universal access to this knowledge and culture, whereas before it was not. +={Kahle, Brewster+3;archives, digital+4;culture:archives of+4} + +And now copyright law does get in the way. Every step of producing this digital archive of our culture infringes on the exclusive right of copyright. To digitize a book is to copy it. To do that requires permission of the copyright owner. The same with music, film, or any other aspect of our culture protected by copyright. The effort to make these things available to history, or to researchers, or to those who just want to explore, is now inhibited by a set of rules that were written for a radically different context. + +Here is the core of the harm that comes from extending terms: Now that technology enables us to rebuild the library of Alexandria, the law gets in the way. And it doesn't get in the way for any useful /{copyright}/ purpose, for the purpose of copyright is to enable the commercial market that spreads culture. No, we are talking about culture after it has lived its commercial life. In this context, copyright is serving no purpose /{at all}/ related to the spread of knowledge. In this context, copyright is not an engine of free expression. Copyright is a brake. +={libraries:archival function of+2} + +You may well ask, "But if digital technologies lower the costs for Brewster Kahle, then they will lower the costs for Random House, too. So won't Random House do as well as Brewster Kahle in spreading culture widely?" + +Maybe. Someday. But there is absolutely no evidence to suggest that publishers would be as complete as libraries. If Barnes & Noble offered to lend books from its stores for a low price, would that eliminate the need for libraries? Only if you think that the only role of a library is to serve what "the market" would demand. But if you think the role of a library is bigger than this - if you think its role is to archive culture, whether there's a demand for any particular bit of that culture or not - then we can't count on the commercial market to do our library work for us. + +I would be the first to agree that it should do as much as it can: We should rely upon the market as much as possible to spread and enable culture. My message is absolutely not antimarket. But where we see the market is not doing the job, then we should allow nonmarket forces the freedom to fill the gaps. As one researcher calculated for American culture, 94 percent of the films, books, and music produced between 1923 and 1946 is not commercially available. However much you love the commercial market, if access is a value, then 6 percent is a failure to provide that value.~{ Jason Schultz, "The Myth of the 1976 Copyright 'Chaos' Theory," 20 December 2002, available at link #54. }~ + +!_ In January 1999, +we filed a lawsuit on Eric Eldred's behalf in federal district court in Washington, D.C., asking the court to declare the Sonny Bono Copyright Term Extension Act unconstitutional. The two central claims that we made were (1) that extending existing terms violated the Constitution's "limited Times" requirement, and (2) that extending terms by another twenty years violated the First Amendment. +={Eldred v. Ashcroft+126;Lessig, Lawrence:Eldred case involvement of+126;Congress, U.S.:copyright terms extended by+2;Constitution, U.S.:First Amendment to;First Amendment:copyright extension as violation of;Sonny Bono Copyright Term Extension Act (CTEA) (1998):Supreme Court challenge of+7;Supreme Court, U.S.:on copyright term extensions+126;copyright law:Supreme Court case on term extension of+126|term extensions in+126} + +The district court dismissed our claims without even hearing an argument. A panel of the Court of Appeals for the D.C. Circuit also dismissed our claims, though after hearing an extensive argument. But that decision at least had a dissent, by one of the most conservative judges on that court. That dissent gave our claims life. + +Judge David Sentelle said the CTEA violated the requirement that copyrights be for "limited Times" only. His argument was as elegant as it was simple: If Congress can extend existing terms, then there is no "stopping point" to Congress's power under the Copyright Clause. The power to extend existing terms means Congress is not required to grant terms that are "limited." Thus, Judge Sentelle argued, the court had to interpret the term "limited Times" to give it meaning. And the best interpretation, Judge Sentelle argued, would be to deny Congress the power to extend existing terms. +={Congress, U.S.:challenge of CTEA legislation of+124;Sentelle, David+2} + +We asked the Court of Appeals for the D.C. Circuit as a whole to hear the case. Cases are ordinarily heard in panels of three, except for important cases or cases that raise issues specific to the circuit as a whole, where the court will sit "en banc" to hear the case. +={Court of Appeals:D.C. Circuit+1;D.C. Court of Appeals+1} + +The Court of Appeals rejected our request to hear the case en banc. This time, Judge Sentelle was joined by the most liberal member of the D.C. Circuit, Judge David Tatel. Both the most conservative and the most liberal judges in the D.C. Circuit believed Congress had over-stepped its bounds. +={Tatel, David} + +It was here that most expected /{Eldred v. Ashcroft}/ would die, for the Supreme Court rarely reviews any decision by a court of appeals. (It hears about one hundred cases a year, out of more than five thousand appeals.) And it practically never reviews a decision that upholds a statute when no other court has yet reviewed the statute. +={Supreme Court, U.S.:annual docket of} + +But in February 2002, the Supreme Court surprised the world by granting our petition to review the D.C. Circuit opinion. Argument was set for October of 2002. The summer would be spent writing briefs and preparing for argument. + +!_ It is over +a year later as I write these words. It is still astonishingly hard. If you know anything at all about this story, you know that we lost the appeal. And if you know something more than just the minimum, you probably think there was no way this case could have been won. After our defeat, I received literally thousands of missives by well-wishers and supporters, thanking me for my work on behalf of this noble but doomed cause. And none from this pile was more significant to me than the e-mail from my client, Eric Eldred. +={Eldred, Eric} + +But my client and these friends were wrong. This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can never escape believing that my own mistake lost it. + +!_ The mistake +was made early, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat from its copyright-protectionist clients for supporting us. They ignored this pressure (something that few law firms today would ever do), and throughout the case, they gave it everything they could. +={Stewart, Gordon+1;Jones, Day, Reavis and Pogue (Jones Day)+1} + +There were three key lawyers on the case from Jones Day. Geoff Stewart was the first, but then Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer in particular had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem "important" to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, they would never vote against "the most powerful media companies in the world." +={Ayer, Don;Bromberg, Dan} + +I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. Of course I still think it is. But the idea that the Supreme Court decides the law based on how important they believe the issues are is just wrong. It might be "right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be that way." As I believed that any faithful interpretation of what the framers of our Constitution did would yield the conclusion that the CTEA was unconstitutional, and as I believed that any faithful interpretation of what the First Amendment means would yield the conclusion that the power to extend existing copyright terms is unconstitutional, I was not persuaded that we had to sell our case like soap. Just as a law that bans the swastika is unconstitutional not because the Court likes Nazis but because such a law would violate the Constitution, so too, in my view, would the Court decide whether Congress's law was constitutional based on the Constitution, not based on whether they liked the values that the framers put in the Constitution. +={Constitution, U.S.:First Amendment to;First Amendment:copyright extension as violation of;Sonny Bono Copyright Term Extension Act (CTEA) (1998):Supreme Court challenge of} + +In any case, I thought, the Court must already see the danger and the harm caused by this sort of law. Why else would they grant review? There was no reason to hear the case in the Supreme Court if they weren't convinced that this regulation was harmful. So in my view, we didn't need to persuade them that this law was bad, we needed to show why it was unconstitutional. + +There was one way, however, in which I felt politics would matter and in which I thought a response was appropriate. I was convinced that the Court would not hear our arguments if it thought these were just the arguments of a group of lefty loons. This Supreme Court was not about to launch into a new field of judicial review if it seemed that this field of review was simply the preference of a small political minority. Although my focus in the case was not to demonstrate how bad the Sonny Bono Act was but to demonstrate that it was unconstitutional, my hope was to make this argument against a background of briefs that covered the full range of political views. To show that this claim against the CTEA was grounded in /{law}/ and not politics, then, we tried to gather the widest range of credible critics - credible not because they were rich and famous, but because they, in the aggregate, demonstrated that this law was unconstitutional regardless of one's politics. +={Sonny Bono Copyright Term Extension Act (CTEA) (1998):Supreme Court challenge of} + +The first step happened all by itself. Phyllis Schlafly's organization, Eagle Forum, had been an opponent of the CTEA from the very beginning. Mrs. Schlafly viewed the CTEA as a sellout by Congress. In November 1998, she wrote a stinging editorial attacking the Republican Congress for allowing the law to pass. As she wrote, "Do you sometimes wonder why bills that create a financial windfall to narrow special interests slide easily through the intricate legislative process, while bills that benefit the general public seem to get bogged down?" The answer, as the editorial documented, was the power of money. Schlafly enumerated Disney's contributions to the key players on the committees. It was money, not justice, that gave Mickey Mouse twenty more years in Disney's control, Schlafly argued. +={Disney, Inc.;Eagle Forum+2;Mickey Mouse;Schlafy, Phyllis} + +In the Court of Appeals, Eagle Forum was eager to file a brief supporting our position. Their brief made the argument that became the core claim in the Supreme Court: If Congress can extend the term of existing copyrights, there is no limit to Congress's power to set terms. That strong conservative argument persuaded a strong conservative judge, Judge Sentelle. +={Court of Appeals:D.C. Circuit;D.C. Court of Appeals;Sentelle, David} + +In the Supreme Court, the briefs on our side were about as diverse as it gets. They included an extraordinary historical brief by the Free Software Foundation (home of the GNU project that made GNU/ Linux possible). They included a powerful brief about the costs of uncertainty by Intel. There were two law professors' briefs, one by copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments. +={Free Software Foundation;GNU/Linux operating system;Linux operating system;Intel;Constitution, U.S.:Progress Clause of;Progress Clause} + +Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union. +={American Association of Law Libraries;Internet Archive;National Writers Union} + +But two briefs captured the policy argument best. One made the argument I've already described: A brief by Hal Roach Studios argued that unless the law was struck, a whole generation of American film would disappear. The other made the economic argument absolutely clear. +={Hal Roach Studios} + +This economists' brief was signed by seventeen economists, including five Nobel Prize winners, including Ronald Coase, James Buchanan, Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as the list of Nobel winners demonstrates, spanned the political spectrum. Their conclusions were powerful: There was no plausible claim that extending the terms of existing copyrights would do anything to increase incentives to create. Such extensions were nothing more than "rent-seeking" - the fancy term economists use to describe special- interest legislation gone wild. +={Akerlof, George;Arrow, Kenneth;Buchanan, James;Coase, Ronald;Fridman, Milton+2} + +The same effort at balance was reflected in the legal team we gathered to write our briefs in the case. The Jones Day lawyers had been with us from the start. But when the case got to the Supreme Court, we added three lawyers to help us frame this argument to this Court: Alan Morrison, a lawyer from Public Citizen, a Washington group that had made constitutional history with a series of seminal victories in the Supreme Court defending individual rights; my colleague and dean, Kathleen Sullivan, who had argued many cases in the Court, and who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried. +={Jones, Day, Reavis and Pogue (Jones Day);Morrison, Alan;Sullivan, Kathleen;Fried, Charles+1;Public Citizen} + +Fried was a special victory for our side. Every other former solicitor general was hired by the other side to defend Congress's power to give media companies the special favor of extended copyright terms. Fried was the only one who turned down that lucrative assignment to stand up for something he believed in. He had been Ronald Reagan's chief lawyer in the Supreme Court. He had helped craft the line of cases that limited Congress's power in the context of the Commerce Clause. And while he had argued many positions in the Supreme Court that I personally disagreed with, his joining the cause was a vote of confidence in our argument. +={Reagan, Ronald;Congress, U.S.:constitutional powers of;Constitution, U.S.:Commerce Clause of} + +The government, in defending the statute, had its collection of friends, as well. Significantly, however, none of these "friends" included historians or economists. The briefs on the other side of the case were written exclusively by major media companies, congressmen, and copyright holders. + +The media companies were not surprising. They had the most to gain from the law. The congressmen were not surprising either - they were defending their power and, indirectly, the gravy train of contributions such power induced. And of course it was not surprising that the copyright holders would defend the idea that they should continue to have the right to control who did what with content they wanted to control. + +Dr. Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to Dr. Seuss's work - better than allowing it to fall into the public domain - because if this creativity were in the public domain, then people could use it to "glorify drugs or to create pornography."~{ Brief of Amici Dr. Seuss Enterprise et al., /{Eldred v. Ashcroft,}/ 537 U.S. 186 (2003) (No. 01-618), 19. }~ That was also the motive of the Gershwin estate, which defended its "protection" of the work of George Gershwin. They refuse, for example, to license /{Porgy and Bess}/ to anyone who refuses to use African Americans in the cast.~{ Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey Mouse Joins the Fray," /{New York Times,}/ 28 March 1998, B7. }~ That's their view of how this part of American culture should be controlled, and they wanted this law to help them effect that control. +={Gershwin, George+1;Porgy and Bess;pornography;Seuss, Dr.+1} + +This argument made clear a theme that is rarely noticed in this debate. When Congress decides to extend the term of existing copyrights, Congress is making a choice about which speakers it will favor. Famous and beloved copyright owners, such as the Gershwin estate and Dr. Seuss, come to Congress and say, "Give us twenty years to control the speech about these icons of American culture. We'll do better with them than anyone else." Congress of course likes to reward the popular and famous by giving them what they want. But when Congress gives people an exclusive right to speak in a certain way, that's just what the First Amendment is traditionally meant to block. +={First Amendment:copyright extension as violation of;Constitution, U.S.:First Amendment to} + +We argued as much in a final brief. Not only would upholding the CTEA mean that there was no limit to the power of Congress to extend copyrights - extensions that would further concentrate the market; it would also mean that there was no limit to Congress's power to play favorites, through copyright, with who has the right to speak. +={Sonny Bono Copyright Term Extension Act (CTEA) (1998):Supreme Court challenge of+64;Congress, U.S.:constitutional powers of+8} + +!_ Between February +and October, there was little I did beyond preparing for this case. Early on, as I said, I set the strategy. + +The Supreme Court was divided into two important camps. One camp we called "the Conservatives." The other we called "the Rest." The Conservatives included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and Justice Thomas. These five had been the most consistent in limiting Congress's power. They were the five who had supported the /{Lopez/Morrison}/ line of cases that said that an enumerated power had to be interpreted to assure that Congress's powers had limits. +={Kennedy, Anthony;O'Connor, Sandra Day;Rehnquist, William H.;Thomas, Clarence;United States v. Lopez;United States v. Morrison;Scalia, Antonin;Congress, U.S.:Supreme Court restraint on;Supreme Court, U.S.:congressional actions restrained by|factions of+3} + +The Rest were the four Justices who had strongly opposed limits on Congress's power. These four - Justice Stevens, Justice Souter, Justice Ginsburg, and Justice Breyer - had repeatedly argued that the Constitution gives Congress broad discretion to decide how best to implement its powers. In case after case, these justices had argued that the Court's role should be one of deference. Though the votes of these four justices were the votes that I personally had most consistently agreed with, they were also the votes that we were least likely to get. +={Breyer, Stephen;Ginsburg, Ruth Bader;Stevens, John Paul;Souter, David} + +In particular, the least likely was Justice Ginsburg's. In addition to her general view about deference to Congress (except where issues of gender are involved), she had been particularly deferential in the context of intellectual property protections. She and her daughter (an excellent and well-known intellectual property scholar) were cut from the same intellectual property cloth. We expected she would agree with the writings of her daughter: that Congress had the power in this context to do as it wished, even if what Congress wished made little sense. + +Close behind Justice Ginsburg were two justices whom we also viewed as unlikely allies, though possible surprises. Justice Souter strongly favored deference to Congress, as did Justice Breyer. But both were also very sensitive to free speech concerns. And as we strongly believed, there was a very important free speech argument against these retrospective extensions. +={Breyer, Stephen;Ginsburg, Ruth Bader;Souter, David} + +The only vote we could be confident about was that of Justice Stevens. History will record Justice Stevens as one of the greatest judges on this Court. His votes are consistently eclectic, which just means that no simple ideology explains where he will stand. But he had consistently argued for limits in the context of intellectual property generally. We were fairly confident he would recognize limits here. +={Stevens, John Paul} + +This analysis of "the Rest" showed most clearly where our focus had to be: on the Conservatives. To win this case, we had to crack open these five and get at least a majority to go our way.Thus, the single overriding argument that animated our claim rested on the Conservatives' most important jurisprudential innovation - the argument that Judge Sentelle had relied upon in the Court of Appeals, that Congress's power must be interpreted so that its enumerated powers have limits. +={Court of Appeals:D.C. Circuit;D.C. Court of Appeals;Sentelle, David} + +This then was the core of our strategy - a strategy for which I am responsible. We would get the Court to see that just as with the /{Lopez}/ case, under the government's argument here, Congress would always have unlimited power to extend existing terms. If anything was plain about Congress's power under the Progress Clause, it was that this power was supposed to be "limited." Our aim would be to get the Court to reconcile /{Eldred}/ with /{Lopez:}/ If Congress's power to regulate commerce was limited, then so, too, must Congress's power to regulate copyright be limited. +={United States v. Lopez;commerce, interstate;interstate commerce;Congress, U.S.:in constitutional Progress Clause;Progress Clause;Congress, U.S.:copyright terms extended by+3;Constitution, U.S.:Progress Clause of} + +!_ The argument +on the government's side came down to this: Congress has done it before. It should be allowed to do it again. The government claimed that from the very beginning, Congress has been extending the term of existing copyrights. So, the government argued, the Court should not now say that practice is unconstitutional. + +There was some truth to the government's claim, but not much. We certainly agreed that Congress had extended existing terms in 1831 and in 1909. And of course, in 1962, Congress began extending existing terms regularly - eleven times in forty years. + +But this "consistency" should be kept in perspective. Congress extended existing terms once in the first hundred years of the Republic. It then extended existing terms once again in the next fifty. Those rare extensions are in contrast to the now regular practice of extending existing terms. Whatever restraint Congress had had in the past, that restraint was now gone. Congress was now in a cycle of extensions; there was no reason to expect that cycle would end. This Court had not hesitated to intervene where Congress was in a similar cycle of extension. There was no reason it couldn't intervene here. + +!_ Oral argument +was scheduled for the first week in October. I arrived in D.C. two weeks before the argument. During those two weeks, I was repeatedly "mooted" by lawyers who had volunteered to help in the case. Such "moots" are basically practice rounds, where wannabe justices fire questions at wannabe winners. + +I was convinced that to win, I had to keep the Court focused on a single point: that if this extension is permitted, then there is no limit to the power to set terms. Going with the government would mean that terms would be effectively unlimited; going with us would give Congress a clear line to follow: Don't extend existing terms. The moots were an effective practice; I found ways to take every question back to this central idea. + +One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor General Charles Fried. He had argued many cases before the Supreme Court. And in his review of the moot, he let his concern speak: +={Ayer, Don+2;Fried, Charles;Jones, Day, Reavis and Pogue (Jones Day);Reagan, Ronald} + +"I'm just afraid that unless they really see the harm, they won't be willing to upset this practice that the government says has been a consistent practice for two hundred years. You have to make them see the harm - passionately get them to see the harm. For if they don't see that, then we haven't any chance of winning." + +He may have argued many cases before this Court, I thought, but he didn't understand its soul. As a clerk, I had seen the Justices do the right thing - not because of politics but because it was right. As a law professor, I had spent my life teaching my students that this Court does the right thing - not because of politics but because it is right. As I listened to Ayer's plea for passion in pressing politics, I understood his point, and I rejected it. Our argument was right. That was enough. Let the politicians learn to see that it was also good. + +!_ The night before +the argument, a line of people began to form in front of the Supreme Court. The case had become a focus of the press and of the movement to free culture. Hundreds stood in line for the chance to see the proceedings. Scores spent the night on the Supreme Court steps so that they would be assured a seat. + +Not everyone has to wait in line. People who know the Justices can ask for seats they control. (I asked Justice Scalia's chambers for seats for my parents, for example.) Members of the Supreme Court bar can get a seat in a special section reserved for them. And senators and congressmen have a special place where they get to sit, too. And finally, of course, the press has a gallery, as do clerks working for the Justices on the Court. As we entered that morning, there was no place that was not taken. This was an argument about intellectual property law, yet the halls were filled. As I walked in to take my seat at the front of the Court, I saw my parents sitting on the left. As I sat down at the table, I saw Jack Valenti sitting in the special section ordinarily reserved for family of the Justices. +={Scalia, Antonin;Valenti, Jack} + +When the Chief Justice called me to begin my argument, I began where I intended to stay: on the question of the limits on Congress's power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit. +={Congress, U.S.:constitutional powers of+3} + +Justice O'Connor stopped me within one minute of my opening. The history was bothering her. +={O'Connor, Sandra Day+1} + +_1 JUSTICE O'CONNOR: Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act." + +She was quite willing to concede "that this flies directly in the face of what the framers had in mind." But my response again and again was to emphasize limits on Congress's power. + +_1 MR. LESSIG: Well, if it flies in the face of what the framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes." + +There were two points in this argument when I should have seen where the Court was going. The first was a question by Justice Kennedy, who observed, +={Kennedy, Anthony+1} + +_1 JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that. + +Here follows my clear mistake. Like a professor correcting a student, I answered, + +_1 MR. LESSIG: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws." + +That was a correct answer, but it wasn't the right answer. The right answer was instead that there was an obvious and profound harm. Any number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss. +={Ayer, Don} + +The second came from the Chief, for whom the whole case had been crafted. For the Chief Justice had crafted the /{Lopez}/ ruling, and we hoped that he would see this case as its second cousin. +={United States v. Lopez} + +It was clear a second into his question that he wasn't at all sympathetic. To him, we were a bunch of anarchists. As he asked: + +_1 CHIEF JUSTICE: Well, but you want more than that. You want the right to copy verbatim other people's books, don't you? +={Rehnquist, William H.} + +_1 MR. LESSIG: We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified under ordinary First Amendment analysis or under a proper reading of the limits built into the Copyright Clause." + +Things went better for us when the government gave its argument; for now the Court picked up on the core of our claim. As Justice Scalia asked Solicitor General Olson, +={Olson, Theodore B.+2;Scalia, Antonin+1} + +_1 JUSTICE SCALIA: You say that the functional equivalent of an unlimited time would be a violation [of the Constitution], but that's precisely the argument that's being made by petitioners here, that a limited time which is extendable is the functional equivalent of an unlimited time." + +When Olson was finished, it was my turn to give a closing rebuttal. Olson's flailing had revived my anger. But my anger still was directed to the academic, not the practical. The government was arguing as if this were the first case ever to consider limits on Congress's Copyright and Patent Clause power. Ever the professor and not the advocate, I closed by pointing out the long history of the Court imposing limits on Congress's power in the name of the Copyright and Patent Clause - indeed, the very first case striking a law of Congress as exceeding a specific enumerated power was based upon the Copyright and Patent Clause. All true. But it wasn't going to move the Court to my side. +={Congress, U.S.:constitutional powers of+2} + +!_ As I left +the court that day, I knew there were a hundred points I wished I could remake. There were a hundred questions I wished I had answered differently. But one way of thinking about this case left me optimistic. + +The government had been asked over and over again, what is the limit? Over and over again, it had answered there is no limit. This was precisely the answer I wanted the Court to hear. For I could not imagine how the Court could understand that the government believed Congress's power was unlimited under the terms of the Copyright Clause, and sustain the government's argument. The solicitor general had made my argument for me. No matter how often I tried, I could not understand how the Court could find that Congress's power under the Commerce Clause was limited, but under the Copyright Clause, unlimited. In those rare moments when I let myself believe that we may have prevailed, it was because I felt this Court - in particular, the Conservatives - would feel itself constrained by the rule of law that it had established elsewhere. + +!_ The morning +of January 15, 2003, I was five minutes late to the office and missed the 7:00 A.M.call from the Supreme Court clerk. Listening to the message, I could tell in an instant that she had bad news to report.The Supreme Court had affirmed the decision of the Court of Appeals. Seven justices had voted in the majority. There were two dissents. + +A few seconds later, the opinions arrived by e-mail. I took the phone off the hook, posted an announcement to our blog, and sat down to see where I had been wrong in my reasoning. + +My /{reasoning}/. Here was a case that pitted all the money in the world against /{reasoning}/. And here was the last naïve law professor, scouring the pages, looking for reasoning. + +I first scoured the opinion, looking for how the Court would distinguish the principle in this case from the principle in /{Lopez}/. The argument was nowhere to be found. The case was not even cited. The argument that was the core argument of our case did not even appear in the Court's opinion. +={United States v. Lopez+3} + +Justice Ginsburg simply ignored the enumerated powers argument. Consistent with her view that Congress's power was not limited generally, she had found Congress's power not limited here. +={Ginsburg, Ruth Bader} + +Her opinion was perfectly reasonable - for her, and for Justice Souter. Neither believes in /{Lopez}/. It would be too much to expect them to write an opinion that recognized, much less explained, the doctrine they had worked so hard to defeat. +={Souter, David} + +But as I realized what had happened, I couldn't quite believe what I was reading. I had said there was no way this Court could reconcile limited powers with the Commerce Clause and unlimited powers with the Progress Clause. It had never even occurred to me that they could reconcile the two simply /{by not addressing the argument}/. There was no inconsistency because they would not talk about the two together. There was therefore no principle that followed from the /{Lopez}/ case: In that context, Congress's power would be limited, but in this context it would not. + +Yet by what right did they get to choose which of the framers' values they would respect? By what right did they - the silent five - get to select the part of the Constitution they would enforce based on the values they thought important? We were right back to the argument that I said I hated at the start: I had failed to convince them that the issue here was important, and I had failed to recognize that however much I might hate a system in which the Court gets to pick the constitutional values that it will respect, that is the system we have. + +Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion was crafted internal to the law: He argued that the tradition of intellectual property law should not support this unjustified extension of terms. He based his argument on a parallel analysis that had governed in the context of patents (so had we). But the rest of the Court discounted the parallel - without explaining how the very same words in the Progress Clause could come to mean totally different things depending upon whether the words were about patents or copyrights. The Court let Justice Stevens's charge go unanswered. +={Breyer, Stephen+1;patents:duration of;Stevens, John Paul} + +Justice Breyer's opinion, perhaps the best opinion he has ever written, was external to the Constitution. He argued that the term of copyrights has become so long as to be effectively unlimited. We had said that under the current term, a copyright gave an author 99.8 percent of the value of a perpetual term. Breyer said we were wrong, that the actual number was 99.9997 percent of a perpetual term. Either way, the point was clear: If the Constitution said a term had to be "limited," and the existing term was so long as to be effectively unlimited, then it was unconstitutional. +={copyright:in perpetuity} + +These two justices understood all the arguments we had made. But because neither believed in the /{Lopez}/ case, neither was willing to push it as a reason to reject this extension. The case was decided without anyone having addressed the argument that we had carried from Judge Sentelle. It was /{Hamlet}/ without the Prince. +={Setnelle, David;United States v. Lopez+2} + +!_ Defeat brings depression. +They say it is a sign of health when depression gives way to anger. My anger came quickly, but it didn't cure the depression. This anger was of two sorts. + +It was first anger with the five "Conservatives." It would have been one thing for them to have explained why the principle of /{Lopez}/ didn't apply in this case. That wouldn't have been a very convincing argument, I don't believe, having read it made by others, and having tried to make it myself. But it at least would have been an act of integrity. These justices in particular have repeatedly said that the proper mode of interpreting the Constitution is "originalism" - to first understand the framers' text, interpreted in their context, in light of the structure of the Constitution. That method had produced /{Lopez}/ and many other "originalist" rulings. Where was their "originalism" now? +={Constitution, U.S.:originalist interpretation of;originalism} + +Here, they had joined an opinion that never once tried to explain what the framers had meant by crafting the Progress Clause as they did; they joined an opinion that never once tried to explain how the structure of that clause would affect the interpretation of Congress's power. And they joined an opinion that didn't even try to explain why this grant of power could be unlimited, whereas the Commerce Clause would be limited. In short, they had joined an opinion that did not apply to, and was inconsistent with, their own method for interpreting the Constitution. This opinion may well have yielded a result that they liked. It did not produce a reason that was consistent with their own principles. +={Constitution, U.S.:Progress Clause of;Progress Clause;Constitution, U.S.:Commerce Clause of} + +My anger with the Conservatives quickly yielded to anger with myself. For I had let a view of the law that I liked interfere with a view of the law as it is. + +Most lawyers, and most law professors, have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. When Don Ayer said that this case would be won based on whether I could convince the Justices that the framers' values were important, I fought the idea, because I didn't want to believe that that is how this Court decides. I insisted on arguing this case as if it were a simple application of a set of principles. I had an argument that followed in logic. I didn't need to waste my time showing it should also follow in popularity. +={Ayer, Don} + +As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this Court. Justice Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Justice Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue. +={Souter, David;Kennedy, Anthony;Constitution, U.S.:First Amendment to;First Amendment:copyright extension as violation of} + +Would it have been different if I had argued it differently? Would it have been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan? + +My friends huddled around me to insist it would not. The Court was not ready, my friends insisted. This was a loss that was destined. It would take a great deal more to show our society why our framers were right. And when we do that, we will be able to show that Court. + +Maybe, but I doubt it. These Justices have no financial interest in doing anything except the right thing. They are not lobbied. They have little reason to resist doing right. I can't help but think that if I had stepped down from this pretty picture of dispassionate justice, I could have persuaded. + +And even if I couldn't, then that doesn't excuse what happened in January. For at the start of this case, one of America's leading intellectual property professors stated publicly that my bringing this case was a mistake. "The Court is not ready," Peter Jaszi said; this issue should not be raised until it is. +={Jaszi, Peter} + +After the argument and after the decision, Peter said to me, and publicly, that he was wrong. But if indeed that Court could not have been persuaded, then that is all the evidence that's needed to know that here again Peter was right. Either I was not ready to argue this case in a way that would do some good or they were not ready to hear this case in a way that would do some good. Either way, the decision to bring this case - a decision I had made four years before - was wrong. + +!_ While the reaction +to the Sonny Bono Act itself was almost unanimously negative, the reaction to the Court's decision was mixed. No one, at least in the press, tried to say that extending the term of copyright was a good idea. We had won that battle over ideas. Where the decision was praised, it was praised by papers that had been skeptical of the Court's activism in other cases. Deference was a good thing, even if it left standing a silly law. But where the decision was attacked, it was attacked because it left standing a silly and harmful law. /{The New York Times}/ wrote in its editorial, + +_1 In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. The public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment." +={copyright:in perpetuity} + +The best responses were in the cartoons. There was a gaggle of hilarious images" of Mickey in jail and the like. The best, from my view of the case, was Ruben Bolling's, reproduced on the next page. The "powerful and wealthy" line is a bit unfair. But the punch in the face felt exactly like that. +={Bolling, Ruben+2} + +The image that will always stick in my head is that evoked by the quote from /{The New York Times}/. That "grand experiment" we call the "public domain" is over? When I can make light of it, I think, "Honey, I shrunk the Constitution." But I can rarely make light of it. We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently. + +{freeculture18.png 550x720 }http://www.free-culture.cc/ +={Scalia, Antonin} + +1~ Chapter Fourteen: Eldred II + +!_ The day +/{Eldred}/ was decided, fate would have it that I was to travel to Washington, D.C. (The day the rehearing petition in /{Eldred}/ was denied - meaning the case was really finally over - fate would have it that I was giving a speech to technologists at Disney World.) This was a particularly long flight to my least favorite city. The drive into the city from Dulles was delayed because of traffic, so I opened up my computer and wrote an op-ed piece. + +It was an act of contrition. During the whole of the flight from San Francisco to Washington, I had heard over and over again in my head the same advice from Don Ayer: You need to make them see why it is important. And alternating with that command was the question of Justice Kennedy: "For all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that." And so, having failed in the argument of constitutional principle, finally, I turned to an argument of politics. +={Ayer, Don;Kennedy, Anthony} + +/{The New York Times}/ published the piece. In it, I proposed a simple fix: Fifty years after a work has been published, the copyright owner would be required to register the work and pay a small fee. If he paid the fee, he got the benefit of the full term of copyright. If he did not, the work passed into the public domain. +={copyright law:registration requirement of+23} + +We called this the Eldred Act, but that was just to give it a name. Eric Eldred was kind enough to let his name be used once again, but as he said early on, it won't get passed unless it has another name. +={Eldred, Eric;Eldred Act+23} + +Or another two names. For depending upon your perspective, this is either the "Public Domain Enhancement Act" or the "Copyright Term Deregulation Act." Either way, the essence of the idea is clear and obvious: Remove copyright where it is doing nothing except blocking access and the spread of knowledge. Leave it for as long as Congress allows for those works where its worth is at least $1. But for everything else, let the content go. + +The reaction to this idea was amazingly strong. Steve Forbes endorsed it in an editorial. I received an avalanche of e-mail and letters expressing support. When you focus the issue on lost creativity, people can see the copyright system makes no sense. As a good Republican might say, here government regulation is simply getting in the way of innovation and creativity. And as a good Democrat might say, here the government is blocking access and the spread of knowledge for no good reason. Indeed, there is no real difference between Democrats and Republicans on this issue. Anyone can recognize the stupid harm of the present system. +={Democratic Party;Republican Party;Forbes, Steve} + +Indeed, many recognized the obvious benefit of the registration requirement. For one of the hardest things about the current system for people who want to license content is that there is no obvious place to look for the current copyright owners. Since registration is not required, since marking content is not required, since no formality at all is required, it is often impossibly hard to locate copyright owners to ask permission to use or license their work. This system would lower these costs, by establishing at least one registry where copyright owners could be identified. +={copyright:no registration of works} + +As I described in chapter 10, formalities in copyright law were removed in 1976, when Congress followed the Europeans by abandoning any formal requirement before a copyright is granted.~{ Until the 1908 Berlin Act of the Berne Convention, national copyright legislation sometimes made protection depend upon compliance with formalities such as registration, deposit, and affixation of notice of the author's claim of copyright. However, starting with the 1908 act, every text of the Convention has provided that "the enjoyment and the exercise" of rights guaranteed by the Convention "shall not be subject to any formality." The prohibition against formalities is presently embodied in Article 5(2) of the Paris Text of the Berne Convention. Many countries continue to impose some form of deposit or registration requirement, albeit not as a condition of copyright. French law, for example, requires the deposit of copies of works in national repositories, principally the National Museum. Copies of books published in the United Kingdom must be deposited in the British Library. The German Copyright Act provides for a Registrar of Authors where the author's true name can be filed in the case of anonymous or pseudonymous works. Paul Goldstein, /{International Intellectual Property Law, Cases and Materials}/ (New York: Foundation Press, 2001), 153-54. }~ The Europeans are said to view copyright as a "natural right." Natural rights don't need forms to exist. Traditions, like the Anglo-American tradition that required copyright owners to follow form if their rights were to be protected, did not, the Europeans thought, properly respect the dignity of the author. My right as a creator turns on my creativity, not upon the special favor of the government. +={copyright law:European} + +That's great rhetoric. It sounds wonderfully romantic. But it is absurd copyright policy. It is absurd especially for authors, because a world without formalities harms the creator. The ability to spread "Walt Disney creativity" is destroyed when there is no simple way to know what's protected and what's not. + +The fight against formalities achieved its first real victory in Berlin in 1908. International copyright lawyers amended the Berne Convention in 1908, to require copyright terms of life plus fifty years, as well as the abolition of copyright formalities. The formalities were hated because the stories of inadvertent loss were increasingly common. It was as if a Charles Dickens character ran all copyright offices, and the failure to dot an /{i}/ or cross a /{t}/ resulted in the loss of widows' only income. +={Berne Convention (1908)} + +These complaints were real and sensible. And the strictness of the formalities, especially in the United States, was absurd. The law should always have ways of forgiving innocent mistakes. There is no reason copyright law couldn't, as well. Rather than abandoning formalities totally, the response in Berlin should have been to embrace a more equitable system of registration. + +Even that would have been resisted, however, because registration in the nineteenth and twentieth centuries was still expensive. It was also a hassle. The abolishment of formalities promised not only to save the starving widows, but also to lighten an unnecessary regulatory burden imposed upon creators. + +In addition to the practical complaint of authors in 1908, there was a moral claim as well. There was no reason that creative property should be a second-class form of property. If a carpenter builds a table, his rights over the table don't depend upon filing a form with the government. He has a property right over the table "naturally," and he can assert that right against anyone who would steal the table, whether or not he has informed the government of his ownership of the table. + +This argument is correct, but its implications are misleading. For the argument in favor of formalities does not depend upon creative property being second-class property. The argument in favor of formalities turns upon the special problems that creative property presents. The law of formalities responds to the special physics of creative property, to assure that it can be efficiently and fairly spread. + +No one thinks, for example, that land is second-class property just because you have to register a deed with a court if your sale of land is to be effective. And few would think a car is second-class property just because you must register the car with the state and tag it with a license. In both of those cases, everyone sees that there is an important reason to secure registration" both because it makes the markets more efficient and because it better secures the rights of the owner. Without a registration system for land, landowners would perpetually have to guard their property. With registration, they can simply point the police to a deed. Without a registration system for cars, auto theft would be much easier. With a registration system, the thief has a high burden to sell a stolen car. A slight burden is placed on the property owner, but those burdens produce a much better system of protection for property generally. + +It is similarly special physics that makes formalities important in copyright law. Unlike a carpenter's table, there's nothing in nature that makes it relatively obvious who might own a particular bit of creative property. A recording of Lyle Lovett's latest album can exist in a billion places without anything necessarily linking it back to a particular owner. And like a car, there's no way to buy and sell creative property with confidence unless there is some simple way to authenticate who is the author and what rights he has. Simple transactions are destroyed in a world without formalities. Complex, expensive, /{lawyer}/ transactions take their place. + +This was the understanding of the problem with the Sonny Bono Act that we tried to demonstrate to the Court. This was the part it didn't "get." Because we live in a system without formalities, there is no way easily to build upon or use culture from our past. If copyright terms were, as Justice Story said they would be, "short," then this wouldn't matter much. For fourteen years, under the framers' system, a work would be presumptively controlled. After fourteen years, it would be presumptively uncontrolled. +={Sonny Bono Copyright Term Extension Act (CTEA) (1998):Supreme Court challenge of;Story, Joseph} + +But now that copyrights can be just about a century long, the inability to know what is protected and what is not protected becomes a huge and obvious burden on the creative process. If the only way a library can offer an Internet exhibit about the New Deal is to hire a lawyer to clear the rights to every image and sound, then the copyright system is burdening creativity in a way that has never been seen before /{because there are no formalities}/. + +The Eldred Act was designed to respond to exactly this problem. If it is worth $1 to you, then register your work and you can get the longer term. Others will know how to contact you and, therefore, how to get your permission if they want to use your work. And you will get the benefit of an extended copyright term. + +If it isn't worth it to you to register to get the benefit of an extended term, then it shouldn't be worth it for the government to defend your monopoly over that work either. The work should pass into the public domain where anyone can copy it, or build archives with it, or create a movie based on it. It should become free if it is not worth $1 to you. + +Some worry about the burden on authors. Won't the burden of registering the work mean that the $1 is really misleading? Isn't the hassle worth more than $1? Isn't that the real problem with registration? + +It is. The hassle is terrible. The system that exists now is awful. I completely agree that the Copyright Office has done a terrible job (no doubt because they are terribly funded) in enabling simple and cheap registrations. Any real solution to the problem of formalities must address the real problem of /{governments}/ standing at the core of any system of formalities. In this book, I offer such a solution. That solution essentially remakes the Copyright Office. For now, assume it was Amazon that ran the registration system. Assume it was one-click registration. The Eldred Act would propose a simple, one-click registration fifty years after a work was published. Based upon historical data, that system would move up to 98 percent of commercial work, commercial work that no longer had a commercial life, into the public domain within fifty years. What do you think? +={Copyright Office;public domain:content industry opposition to+15} + +!_ When Steve Forbes +endorsed the idea, some in Washington began to pay attention. Many people contacted me pointing to representatives who might be willing to introduce the Eldred Act. And I had a few who directly suggested that they might be willing to take the first step. +={Forbes, Steve} + +One representative, Zoe Lofgren of California, went so far as to get the bill drafted. The draft solved any problem with international law. It imposed the simplest requirement upon copyright owners possible. In May 2003, it looked as if the bill would be introduced. On May 16, I posted on the Eldred Act blog, "we are close." There was a general reaction in the blog community that something good might happen here. +={Lofgren, Zoe} + +But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA general counsel came to the congresswoman's office to give the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the congresswoman that the MPAA would oppose the Eldred Act. The reasons are embarrassingly thin. More importantly, their thinness shows something clear about what this debate is really about. +={Valenti, Jack:Eldred Act opposed by;film industry:trade association of+2;Motion Picture Association of America (MPAA)+2} + +The MPAA argued first that Congress had "firmly rejected the central concept in the proposed bill" - that copyrights be renewed. That was true, but irrelevant, as Congress's "firm rejection" had occurred long before the Internet made subsequent uses much more likely. Second, they argued that the proposal would harm poor copyright owners - apparently those who could not afford the $1 fee. Third, they argued that Congress had determined that extending a copyright term would encourage restoration work. Maybe in the case of the small percentage of work covered by copyright law that is still commercially valuable, but again this was irrelevant, as the proposal would not cut off the extended term unless the $1 fee was not paid. Fourth, the MPAA argued that the bill would impose "enormous" costs, since a registration system is not free. True enough, but those costs are certainly less than the costs of clearing the rights for a copyright whose owner is not known. Fifth, they worried about the risks if the copyright to a story underlying a film were to pass into the public domain. But what risk is that? If it is in the public domain, then the film is a valid derivative use. +={films:in public domain;public domain:films in} + +Finally, the MPAA argued that existing law enabled copyright owners to do this if they wanted. But the whole point is that there are thousands of copyright owners who don't even know they have a copyright to give. Whether they are free to give away their copyright or not - a controversial claim in any case - unless they know about a copyright, they're not likely to. + +!_ At the beginning +of this book, I told two stories about the law reacting to changes in technology. In the one, common sense prevailed. In the other, common sense was delayed. The difference between the two stories was the power of the opposition - the power of the side that fought to defend the status quo. In both cases, a new technology threatened old interests. But in only one case did those interest's have the power to protect themselves against this new competitive threat. + +I used these two cases as a way to frame the war that this book has been about. For here, too, a new technology is forcing the law to react. And here, too, we should ask, is the law following or resisting common sense? If common sense supports the law, what explains this common sense? + +When the issue is piracy, it is right for the law to back the copyright owners. The commercial piracy that I described is wrong and harmful, and the law should work to eliminate it. When the issue is p2p sharing, it is easy to understand why the law backs the owners still: Much of this sharing is wrong, even if much is harmless. When the issue is copyright terms for the Mickey Mouses of the world, it is possible still to understand why the law favors Hollywood: Most people don't recognize the reasons for limiting copyright terms; it is thus still possible to see good faith within the resistance. + +But when the copyright owners oppose a proposal such as the Eldred Act, then, finally, there is an example that lays bare the naked self-interest driving this war. This act would free an extraordinary range of content that is otherwise unused. It wouldn't interfere with any copyright owner's desire to exercise continued control over his content. It would simply liberate what Kevin Kelly calls the "Dark Content" that fills archives around the world. So when the warriors oppose a change like this, we should ask one simple question: +={Eldred Act+3;Kelly, Kevin} + +What does this industry really want? + +With very little effort, the warriors could protect their content. So the effort to block something like the Eldred Act is not really about protecting /{their}/ content. The effort to block the Eldred Act is an effort to assure that nothing more passes into the public domain. It is another step to assure that the public domain will never compete, that there will be no use of content that is not commercially controlled, and that there will be no commercial use of content that doesn't require /{their}/ permission first. + +The opposition to the Eldred Act reveals how extreme the other side is. The most powerful and sexy and well loved of lobbies really has as its aim not the protection of "property" but the rejection of a tradition. Their aim is not simply to protect what is theirs. /{Their aim is to assure that all there is is what is theirs}/. + +It is not hard to understand why the warriors take this view. It is not hard to see why it would benefit them if the competition of the public domain tied to the Internet could somehow be quashed. Just as RCA feared the competition of FM, they fear the competition of a public domain connected to a public that now has the means to create with it and to share its own creation. +={radio:FM spectrum of;FM radio;RCA} + +What is hard to understand is why the public takes this view. It is as if the law made airplanes trespassers. The MPAA stands with the Causbys and demands that their remote and useless property rights be respected, so that these remote and forgotten copyright holders might block the progress of others. +={Causby, Thomas Lee;Causby, Tinie;film industry:trade association of;Motion Picture Association of America (MPAA)} + +All this seems to follow easily from this untroubled acceptance of the "property" in intellectual property. Common sense supports it, and so long as it does, the assaults will rain down upon the technologies of the Internet. The consequence will be an increasing "permission society." The past can be cultivated only if you can identify the owner and gain permission to build upon his work. The future will be controlled by this dead (and often unfindable) hand of the past. + +:B~ CONCLUSION + +1~conclusion [Conclusion]-# + +!_ There are more +than 35 million people with the AIDS virus worldwide. Twenty-five million of them live in sub-Saharan Africa. Seventeen million have already died. Seventeen million Africans is proportional percentage-wise to seven million Americans. More importantly, it is seventeen million Africans. +={Africa, medications for HIV patients in+15;AIDS medications+15;antiretroviral drugs+15;developing countries, foreign patent costs in+15;drugs:pharmaceutical+15;HIV/AIDS therapies+15} + +There is no cure for AIDS, but there are drugs to slow its progression. These antiretroviral therapies are still experimental, but they have already had a dramatic effect. In the United States, AIDS patients who regularly take a cocktail of these drugs increase their life expectancy by ten to twenty years. For some, the drugs make the disease almost invisible. + +These drugs are expensive. When they were first introduced in the United States, they cost between $10,000 and $15,000 per person per year. Today, some cost $25,000 per year. At these prices, of course, no African nation can afford the drugs for the vast majority of its population: $15,000 is thirty times the per capita gross national product of Zimbabwe. At these prices, the drugs are totally unavailable.~{ Commission on Intellectual Property Rights, "Final Report: Integrating Intellectual Property Rights and Development Policy" (London, 2002), available at link #55. According to a World Health Organization press release issued 9 July 2002, only 230,000 of the 6 million who need drugs in the developing world receive them - and half of them are in Brazuil. }~ + +These prices are not high because the ingredients of the drugs are expensive. These prices are high because the drugs are protected by patents. The drug companies that produced these life-saving mixes enjoy at least a twenty-year monopoly for their inventions. They use that monopoly power to extract the most they can from the market. That power is in turn used to keep the prices high. +={patents:on pharmaceuticals+14;pharmaceutical patents+14} + +There are many who are skeptical of patents, especially drug patents. I am not. Indeed, of all the areas of research that might be supported by patents, drug research is, in my view, the clearest case where patents are needed. The patent gives the drug company some assurance that if it is successful in inventing a new drug to treat a disease, it will be able to earn back its investment and more. This is socially an extremely valuable incentive. I am the last person who would argue that the law should abolish it, at least without other changes. + +But it is one thing to support patents, even drug patents. It is another thing to determine how best to deal with a crisis. And as African leaders began to recognize the devastation that AIDS was bringing, they started looking for ways to import HIV treatments at costs significantly below the market price. + +In 1997, South Africa tried one tack. It passed a law to allow the importation of patented medicines that had been produced or sold in another nation's market with the consent of the patent owner. For example, if the drug was sold in India, it could be imported into Africa from India. This is called "parallel importation," and it is generally permitted under international trade law and is specifically permitted within the European Union.~{ See Peter Drahos with John Braithwaite, /{Information Feudalism: Who Owns the Knowledge Economy?}/ (New York: The New Press, 2003), 37. }~ +={international law+11;parallel importation+1;South Africa, Republic of, pharmaceutical imports by+5} + +However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association characterized it, "The U.S. government pressured South Africa ... not to permit compulsory licensing or parallel imports."~{ International Intellectual Property Institute (IIPI), /{Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization}/ (Washington, D.C., 2000), 14, available at link #56. For a firsthand account of the struggle over South Africa, see Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150-57 (statement of James Love). }~ Through the Office of the United States Trade Representative, the government asked South Africa to change the law - and to add pressure to that request, in 1998, the USTR listed South Africa for possible trade sanctions. That same year, more than forty pharmaceutical companies began proceedings in the South African courts to challenge the govern-ment's actions. The United States was then joined by other governments from the EU. Their claim, and the claim of the pharmaceutical companies, was that South Africa was violating its obligations under international law by discriminating against a particular kind of patent - pharmaceutical patents. The demand of these governments, with the United States in the lead, was that South Africa respect these patents as it respects any other patent, regardless of any effect on the treatment of AIDS within South Africa.~{ International Intellectual Property Institute (IIPI), /{Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization}/ (Washington, D.C., 2000), 15. }~ +={United States Trade Representative (USTR)} + +We should place the intervention by the United States in context. No doubt patents are not the most important reason that Africans don't have access to drugs. Poverty and the total absence of an effective health care infrastructure matter more. But whether patents are the most important reason or not, the price of drugs has an effect on their demand, and patents affect price. And so, whether massive or marginal, there was an effect from our government's intervention to stop the flow of medications into Africa. + +By stopping the flow of HIV treatment into Africa, the United States government was not saving drugs for United States citizens. This is not like wheat (if they eat it, we can't); instead, the flow that the United States intervened to stop was, in effect, a flow of knowledge: information about how to take chemicals that exist within Africa, and turn those chemicals into drugs that would save 15 to 30 million lives. + +Nor was the intervention by the United States going to protect the profits of United States drug companies - at least, not substantially. It was not as if these countries were in the position to buy the drugs for the prices the drug companies were charging. Again, the Africans are wildly too poor to afford these drugs at the offered prices. Stopping the parallel import of these drugs would not substantially increase the sales by U.S. companies. + +Instead, the argument in favor of restricting this flow of information, which was needed to save the lives of millions, was an argument about the sanctity of property.~{ See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's Needs at Odds with Firms' Profit Motive," /{San Francisco Chronicle,}/ 24 May 1999, A1, available at link #57 ("compulsory licenses and gray markets pose a threat to the entire system of intellectual property protection"); Robert Weissman, "AIDS and Developing Countries: Democratizing Access to Essential Medicines," /{Foreign Policy in Focus}/ 4:23 (August 1999), available at link #58 (describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property Rights and Compassion, a Synopsis," /{Widener Law Symposium Journal}/ (Spring 2001): 175. }~ It was because "intellectual property" would be violated that these drugs should not flow into Africa. It was a principle about the importance of "intellectual property" that led these government actors to intervene against the South African response to AIDS. + +Now just step back for a moment. There will be a time thirty years from now when our children look back at us and ask, how could we have let this happen? How could we allow a policy to be pursued whose direct cost would be to speed the death of 15 to 30 million Africans, and whose only real benefit would be to uphold the "sanctity" of an idea? What possible justification could there ever be for a policy that results in so many deaths? What exactly is the insanity that would allow so many to die for such an abstraction? + +Some blame the drug companies. I don't. They are corporations. Their managers are ordered by law to make money for the corporation. They push a certain patent policy not because of ideals, but because it is the policy that makes them the most money. And it only makes them the most money because of a certain corruption within our political system - a corruption the drug companies are certainly not responsible for. +={corporations:in pharmaceutical industry+2} + +The corruption is our own politicians' failure of integrity. For the drug companies would love - they say, and I believe them - to sell their drugs as cheaply as they can to countries in Africa and elsewhere. There are issues they'd have to resolve to make sure the drugs didn't get back into the United States, but those are mere problems of technology. They could be overcome. + +A different problem, however, could not be overcome. This is the fear of the grandstanding politician who would call the presidents of the drug companies before a Senate or House hearing, and ask, "How is it you can sell this HIV drug in Africa for only $1 a pill, but the same drug would cost an American $1,500?" Because there is no "sound bite" answer to that question, its effect would be to induce regulation of prices in America. The drug companies thus avoid this spiral by avoiding the first step. They reinforce the idea that property should be sacred. They adopt a rational strategy in an irrational context, with the unintended consequence that perhaps millions die. And that rational strategy thus becomes framed in terms of this ideal - the sanctity of an idea called "intellectual property." +={intellectual property rights:of drug patents+3} + +So when the common sense of your child confronts you, what will you say? When the common sense of a generation finally revolts against what we have done, how will we justify what we have done? What is the argument? + +A sensible patent policy could endorse and strongly support the patent system without having to reach everyone everywhere in exactly the same way. Just as a sensible copyright policy could endorse and strongly support a copyright system without having to regulate the spread of culture perfectly and forever, a sensible patent policy could endorse and strongly support a patent system without having to block the spread of drugs to a country not rich enough to afford market prices in any case. A sensible policy, in other words, could be a balanced policy. For most of our history, both copyright and patent policies were balanced in just this sense. + +But we as a culture have lost this sense of balance. We have lost the critical eye that helps us see the difference between truth and extremism. A certain property fundamentalism, having no connection to our tradition, now reigns in this culture - bizarrely, and with consequences more grave to the spread of ideas and culture than almost any other single policy decision that we as a democracy will make. + +!_ A simple idea +blinds us, and under the cover of darkness, much happens that most of us would reject if any of us looked. So uncritically do we accept the idea of property in ideas that we don't even notice how monstrous it is to deny ideas to a people who are dying without them. So uncritically do we accept the idea of property in culture that we don't even question when the control of that property removes our ability, as a people, to develop our culture democratically. Blindness becomes our common sense. And the challenge for anyone who would reclaim the right to cultivate our culture is to find a way to make this common sense open its eyes. + +So far, common sense sleeps. There is no revolt. Common sense does not yet see what there could be to revolt about. The extremism that now dominates this debate fits with ideas that seem natural, and that fit is reinforced by the RCAs of our day. They wage a frantic war to fight "piracy," and devastate a culture for creativity. They defend the idea of "creative property," while transforming real creators into modern-day sharecroppers. They are insulted by the idea that rights should be balanced, even though each of the major players in this content war was itself a beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans produce the "perfect storm" for free culture. + +!_ In August 2003, +a fight broke out in the United States about a decision by the World Intellectual Property Organization to cancel a meeting.~{ Jonathan Krim, "The Quiet War over Open-Source," /{Washington Post,}/ 21 August 2003, E1, available at link #59; William New, "Global Group's Shift on 'Open Source' Meeting Spurs Stir," National Journal's Technology Daily, 19 August 2003, available at link #60; William New, "U.S. Official Opposes 'Open Source' Talks at WIPO," /{National Journal's Technology Daily,}/ 19 August 2003, available at link #61. }~ At the request of a wide range of interests, WIPO had decided to hold a meeting to discuss "open and collaborative projects to create public goods." These are projects that have been successful in producing public goods without relying exclusively upon a proprietary use of intellectual property. Examples include the Internet and the World Wide Web, both of which were developed on the basis of protocols in the public domain. It included an emerging trend to support open academic journals, including the Public Library of Science project that I describe in the Afterword. It included a project to develop single nucleotide polymorphisms (SNPs), which are thought to have great significance in biomedical research. (That nonprofit project comprised a consortium of the Wellcome Trust and pharmaceutical and technological companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo- SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free in the early 1980s. And it included "open source and free software." +={academic journals;biomedical research;intellectual property rights:international organization on issues of+4;Internet:development of;PLoS (Public Library of Science);Public Library of Science (PLoS);public domain:public projects in;single nucleotied polymorphisms (SNPs);Wellcome Trust;World Intellectual Property Organization (WIPO)+4;World Wide Web;Global Positioning System;Reagan, Ronald} + +The aim of the meeting was to consider this wide range of projects from one common perspective: that none of these projects relied upon intellectual property extremism. Instead, in all of them, intellectual property was balanced by agreements to keep access open or to impose limitations on the way in which proprietary claims might be used. + +From the perspective of this book, then, the conference was ideal.~{ I should disclose that I was one of the people who asked WIPO for the meeting. }~ The projects within its scope included both commercial and noncommercial work. They primarily involved science, but from many perspectives. And WIPO was an ideal venue for this discussion, since WIPO is the preeminent international body dealing with intellectual property issues. +={Lessig, Lawrence:in international debate on intellectual property+4} + +Indeed, I was once publicly scolded for not recognizing this fact about WIPO. In February 2003, I delivered a keynote address to a preparatory conference for the World Summit on the Information Society (WSIS). At a press conference before the address, I was asked what I would say. I responded that I would be talking a little about the importance of balance in intellectual property for the development of an information society. The moderator for the event then promptly interrupted to inform me and the assembled reporters that no question about intellectual property would be discussed by WSIS, since those questions were the exclusive domain of WIPO. In the talk that I had prepared, I had actually made the issue of intellectual property relatively minor. But after this astonishing statement, I made intellectual property the sole focus of my talk. There was no way to talk about an "Information Society" unless one also talked about the range of information and culture that would be free. My talk did not make my immoderate moderator very happy. And she was no doubt correct that the scope of intellectual property protections was ordinarily the stuff of WIPO. But in my view, there couldn't be too much of a conversation about how much intellectual property is needed, since in my view, the very idea of balance in intellectual property had been lost. +={World Summit on the Information Society (WSIS)+1} + +So whether or not WSIS can discuss balance in intellectual property, I had thought it was taken for granted that WIPO could and should. And thus the meeting about "open and collaborative projects to create public goods" seemed perfectly appropriate within the WIPO agenda. + +But there is one project within that list that is highly controversial, at least among lobbyists. That project is "open source and free software." Microsoft in particular is wary of discussion of the subject. From its perspective, a conference to discuss open source and free software would be like a conference to discuss Apple's operating system. Both open source and free software compete with Microsoft's software. And internationally, many governments have begun to explore requirements that they use open source or free software, rather than "proprietary software," for their own internal uses. +={free software/open-source software (FS/OSS)+7;Apple Corporation;Microsoft:on free software+4} + +I don't mean to enter that debate here. It is important only to make clear that the distinction is not between commercial and noncommercial software. There are many important companies that depend fundamentally upon open source and free software, IBM being the most prominent. IBM is increasingly shifting its focus to the GNU/Linux operating system, the most famous bit of "free software" - and IBM is emphatically a commercial entity. Thus, to support "open source and free software" is not to oppose commercial entities. It is, instead, to support a mode of software development that is different from Microsoft's.~{ Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with "open source" software or software in the public domain. Microsoft's principal opposition is to "free software" licensed under a "copyleft" license, meaning a license that requires the licensee to adopt the same terms on any derivative work. See Bradford L. Smith, "The Future of Software: Enabling the Marketplace to Decide," /{Government Policy Toward Open Source Software}/ (Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, American Enterprise Institute for Public Policy Research, 2002), 69, available at link #62. See also Craig Mundie, Microsoft senior vice president, /{The Commercial Software Model,}/ discussion at New York University Stern School of Business (3 May 2001), available at link #63. }~ +={GNU/Linux operating system;Linux operating system;IBM} + +More important for our purposes, to support "open source and free software" is not to oppose copyright. "Open source and free software" is not software in the public domain. Instead, like Microsoft's software, the copyright owners of free and open source software insist quite strongly that the terms of their software license be respected by adopters of free and open source software. The terms of that license are no doubt different from the terms of a proprietary software license. Free software licensed under the General Public License (GPL), for example, requires that the source code for the software be made available by anyone who modifies and redistributes the software. But that requirement is effective only if copyright governs software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does. +={General Public License (GPL);GPL (General Public License)} + +It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and understandable that it would use its lobbyists to get the United States government to oppose it, as well. And indeed, that is just what was reported to have happened. According to Jonathan Krim of the /{Washington Post}/, Microsoft's lobbyists succeeded in getting the United States government to veto the meeting.~{ Krim, "The Quiet War over Open-Source," available at link #64. }~ And without U.S. backing, the meeting was canceled. +={intellectual property rights:international organization on issues of+11;World Intellectual Property Organization (WIPO)+11;Krim, Jonathan+2;Microsoft:WIPO meeting opposed by} + +I don't blame Microsoft for doing what it can to advance its own interests, consistent with the law. And lobbying governments is plainly consistent with the law. There was nothing surprising about its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts. + +What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting director of international relations for the U.S. Patent and Trademark Office, explained that "open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights." She is quoted as saying, "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO." +={Boland, Lois+10;Patent and Trademark Office, U.S.+15;intellectual property rights:U.S. Patent Office on private control of+15} + +% PTO range not properly identified, recheck + +These statements are astonishing on a number of levels. + +First, they are just flat wrong. As I described, most open source and free software relies fundamentally upon the intellectual property right called "copyright." Without it, restrictions imposed by those licenses wouldn't work. Thus, to say it "runs counter" to the mission of promoting intellectual property rights reveals an extraordinary gap in under- standing - the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues. + +Second, who ever said that WIPO's exclusive aim was to "promote" intellectual property maximally? As I had been scolded at the preparatory conference of WSIS, WIPO is to consider not only how best to protect intellectual property, but also what the best balance of intellectual property is. As every economist and lawyer knows, the hard question in intellectual property law is to find that balance. But that there should be limits is, I had thought, uncontested. One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose patent has expired) contrary to the WIPO mission? Does the public domain weaken intellectual property? Would it have been better if the protocols of the Internet had been patented? +={World Summit on the Information Society (WSIS);drugs:pharmaceutical;generic drugs;patents:on pharmaceuticals} + +Third, even if one believed that the purpose of WIPO was to maximize intellectual property rights, in our tradition, intellectual property rights are held by individuals and corporations. They get to decide what to do with those rights because, again, they are /{their}/ rights. If they want to "waive" or "disclaim" their rights, that is, within our tradition, totally appropriate. When Bill Gates gives away more than $20 billion to do good in the world, that is not inconsistent with the objectives of the property system. That is, on the contrary, just what a property system is supposed to be about: giving individuals the right to decide what to do with /{their}/ property. +={Gates, Bill} + +When Ms. Boland says that there is something wrong with a meeting "which has as its purpose to disclaim or waive such rights," she's saying that WIPO has an interest in interfering with the choices of the individuals who own intellectual property rights. That somehow, WIPO's objective should be to stop an individual from "waiving" or "dis-claiming" an intellectual property right. That the interest of WIPO is not just that intellectual property rights be maximized, but that they also should be exercised in the most extreme and restrictive way possible. + +There is a history of just such a property system that is well known in the Anglo-American tradition. It is called "feudalism." Under feudalism, not only was property held by a relatively small number of individuals and entities. And not only were the rights that ran with that property powerful and extensive. But the feudal system had a strong interest in assuring that property holders within that system not weaken feudalism by liberating people or property within their control to the free market. Feudalism depended upon maximum control and concentration. It fought any freedom that might interfere with that control. +={feudal system+1;property rights:feudal system of+1} + +As Peter Drahos and John Braithwaite relate, this is precisely the choice we are now making about intellectual property.~{ See Drahos with Braithwaite, /{Information Feudalism,}/ 210-20. }~ We will have an information society. That much is certain. Our only choice now is whether that information society will be /{free}/ or /{feudal}/. The trend is toward the feudal. +={Braithwait, John;Drahos, Peter} + +When this battle broke, I blogged it. A spirited debate within the comment section ensued. Ms. Boland had a number of supporters who tried to show why her comments made sense. But there was one comment that was particularly depressing for me. An anonymous poster wrote, +={Lessig, Lawrence:in international debate on intellectual property+5} + +_1 George, you misunderstand Lessig: He's only talking about the world as it should be ("the goal of WIPO, and the goal of any government, should be to promote the right balance of intellectual- property rights, not simply to promote intellectual property rights"), not as it is. If we were talking about the world as it is, then of course Boland didn't say anything wrong. But in the world as Lessig would have it, then of course she did. Always pay attention to the distinction between Lessig's world and ours." + +I missed the irony the first time I read it. I read it quickly and thought the poster was supporting the idea that seeking balance was what our government should be doing. (Of course, my criticism of Ms. Boland was not about whether she was seeking balance or not; my criticism was that her comments betrayed a first-year law student's mistake. I have no illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about whether our government should speak the truth or not.) + +Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the "goal" of a government should be "to promote the right balance" of intellectual property. That was obviously silly to him. And it obviously betrayed, he believed, my own silly utopianism. "Typical for an academic," the poster might well have continued. + +I understand criticism of academic utopianism. I think utopianism is silly, too, and I'd be the first to poke fun at the absurdly unrealistic ideals of academics throughout history (and not just in our own country's history). + +But when it has become silly to suppose that the role of our government should be to "seek balance," then count me with the silly, for that means that this has become quite serious indeed. If it should be obvious to everyone that the government does not seek balance, that the government is simply the tool of the most powerful lobbyists, that the idea of holding the government to a different standard is absurd, that the idea of demanding of the government that it speak truth and not lies is just naïve, then who have we, the most powerful democracy in the world, become? + +It might be crazy to expect a high government official to speak the truth. It might be crazy to believe that government policy will be something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history - free culture. + +If this is crazy, then let there be more crazies. Soon. + +!_ There are moments +of hope in this struggle. And moments that surprise. When the FCC was considering relaxing ownership rules, which would thereby further increase the concentration in media ownership, an extraordinary bipartisan coalition formed to fight this change. For perhaps the first time in history, interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women for Peace organized to oppose this change in FCC policy. An astonishing 700,000 letters were sent to the FCC, demanding more hearings and a different result. +={CodePink Women for Peace;FCC:media ownership regulated by+1;media:ownership concentration in+6;Safire, William;Turner, Ted} + +This activism did not stop the FCC, but soon after, a broad coalition in the Senate voted to reverse the FCC decision. The hostile hearings leading up to that vote revealed just how powerful this movement had become. There was no substantial support for the FCC's decision, and there was broad and sustained support for fighting further concentration in the media. +={Senate, U.S.:FCC media ownership rules reversed by} + +But even this movement misses an important piece of the puzzle. Largeness as such is not bad. Freedom is not threatened just because some become very rich, or because there are only a handful of big players. The poor quality of Big Macs or Quarter Pounders does not mean that you can't get a good hamburger from somewhere else. + +The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there are a few powerful companies that control an ever expanding slice of the media. It is that this concentration can call upon an equally bloated range of rights - property rights of a historically extreme form - that makes their bigness bad. + +It is therefore significant that so many would rally to demand competition and increased diversity. Still, if the rally is understood as being about bigness alone, it is not terribly surprising. We Americans have a long history of fighting "big," wisely or not. That we could be motivated to fight "big" again is not something new. + +It would be something new, and something very important, if an equal number could be rallied to fight the increasing extremism built within the idea of "intellectual property." Not because balance is alien to our tradition; indeed, as I've argued, balance is our tradition. But because the muscle to think critically about the scope of anything called "property" is not well exercised within this tradition anymore. + +If we were Achilles, this would be our heel. This would be the place of our tragedy. + +!_ As I write +these final words, the news is filled with stories about the RIAA lawsuits against almost three hundred individuals.~{ John Borland, "RIAA Sues 261 File Swappers," CNET News.com, 8 September 2003, available at link #65; Paul R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September 2003, available at link #66; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," /{New York Daily News,}/ 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," /{Washington Post,}/ 10 September 2003, E1; Katie Dean, "Schoolgirl Settles with RIAA," /{Wired News,}/ 10 September 2003, available at link #67. }~ Eminem has just been sued for "sampling" someone else's music.~{ Jon Wiederhorn, "Eminem Gets Sued ... by a Little Old Lady," mtv.com, 17 September 2003, available at link #68. }~ The story about Bob Dylan "stealing" from a Japanese author has just finished making the rounds.~{ Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for Dylan Songs," Kansascity.com, 9 July 2003, available at link #69. }~ An insider from Hollywood - who insists he must remain anonymous - reports "an amazing conversation with these studio guys. They've got extraordinary [old] content that they'd love to use but can't because they can't begin to clear the rights. They've got scores of kids who could do amazing things with the content, but it would take scores of lawyers to clean it first." Congressmen are talking about deputizing computer viruses to bring down computers thought to violate the law. Universities are threatening expulsion for kids who use a computer to share content. +={Dylan, Bob;Eminem;university computer networks, p2p sharing on;copyright infringement lawsuits:individual defendants intimidated by|in recording industry;recording industry:copyright infringement lawsuits of;Recording Industry Association of America (RIAA):copyright infringement lawsuits filed by} + +Yet on the other side of the Atlantic, the BBC has just announced that it will build a "Creative Archive," from which British citizens can download BBC content, and rip, mix, and burn it.~{ "BBC Plans to Open Up Its Archive to the Public," BBC press release, 24 August 2003, available at link #70. }~ And in Brazil, the culture minister, Gilberto Gil, himself a folk hero of Brazilian music, has joined with Creative Commons to release content and free licenses in that Latin American country.~{ "Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003, available at link #71. }~ +={BBC;Brazil, free culture in;Creative Commons;Gil, Gilberto;United Kingdom:public creative archive in} + +I've told a dark story. The truth is more mixed. A technology has given us a new freedom. Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free culture into the twenty-first century, without artists losing and without the potential of digital technology being destroyed. It will take some thought, and more importantly, it will take some will to transform the RCAs of our day into the Causbys. + +Common sense must revolt. It must act to free culture. Soon, if this potential is ever to be realized. + +:B~ AFTERWORD + +1~intro_afterword [Intro]-# + +!_ At least some +who have read this far will agree with me that something must be done to change where we are heading. The balance of this book maps what might be done. +={copyright:voluntary reform efforts on+3} + +I divide this map into two parts: that which anyone can do now, and that which requires the help of lawmakers. If there is one lesson that we can draw from the history of remaking common sense, it is that it requires remaking how many people think about the very same issue. + +That means this movement must begin in the streets. It must recruit a significant number of parents, teachers, librarians, creators, authors, musicians, filmmakers, scientists - all to tell this story in their own words, and to tell their neighbors why this battle is so important. + +Once this movement has its effect in the streets, it has some hope of having an effect in Washington. We are still a democracy. What people think matters. Not as much as it should, at least when an RCA stands opposed, but still, it matters. And thus, in the second part below, I sketch changes that Congress could make to better secure a free culture. +={RCA} + +1~us US, NOW +={copyright:voluntary reform efforts on+45} + +!_ Common sense +is with the copyright warriors because the debate so far has been framed at the extremes - as a grand either/or: either property or anarchy, either total control or artists won't be paid. If that really is the choice, then the warriors should win. + +The mistake here is the error of the excluded middle. There are extremes in this debate, but the extremes are not all that there is. There are those who believe in maximal copyright - "All Rights Reserved" - and those who reject copyright - "No Rights Reserved." The "All Rights Reserved" sorts believe that you should ask permission before you "use" a copyrighted work in any way. The "No Rights Reserved" sorts believe you should be able to do with content as you wish, regardless of whether you have permission or not. + +When the Internet was first born, its initial architecture effectively tilted in the "no rights reserved" direction. Content could be copied perfectly and cheaply; rights could not easily be controlled. Thus, regardless of anyone's desire, the effective regime of copyright under the original design of the Internet was "no rights reserved." Content was "taken" regardless of the rights. Any rights were effectively unprotected. +={Internet:development of+1|initial free character of+1} + +This initial character produced a reaction (opposite, but not quite equal) by copyright owners. That reaction has been the topic of this book. Through legislation, litigation, and changes to the network's design, copyright holders have been able to change the essential character of the environment of the original Internet. If the original architecture made the effective default "no rights reserved," the future architecture will make the effective default "all rights reserved." The architecture and law that surround the Internet's design will increasingly produce an environment where all use of content requires permission. The "cut and paste" world that defines the Internet today will become a "get permission to cut and paste" world that is a creator's nightmare. + +What's needed is a way to say something in the middle - neither "all rights reserved" nor "no rights reserved" but "some rights reserved" - and thus a way to respect copyrights but enable creators to free content as they see fit. In other words, we need a way to restore a set of freedoms that we could just take for granted before. + +2~ Rebuilding Freedoms Previously Presumed: Examples +={free culture:restoration efforts on previous aspects of+22} + +If you step back from the battle I've been describing here, you will recognize this problem from other contexts. Think about privacy. Before the Internet, most of us didn't have to worry much about data about our lives that we broadcast to the world. If you walked into a bookstore and browsed through some of the works of Karl Marx, you didn't need to worry about explaining your browsing habits to your neighbors or boss. The "privacy" of your browsing habits was assured. +={browsing+4;privacy rights+5} + +What made it assured? + +Well, if we think in terms of the modalities I described in chapter 10, your privacy was assured because of an inefficient architecture for gathering data and hence a market constraint (cost) on anyone who wanted to gather that data. If you were a suspected spy for North Korea, working for the CIA, no doubt your privacy would not be assured. But that's because the CIA would (we hope) find it valuable enough to spend the thousands required to track you. But for most of us (again, we can hope), spying doesn't pay. The highly inefficient architecture of real space means we all enjoy a fairly robust amount of privacy. That privacy is guaranteed to us by friction. Not by law (there is no law protecting "privacy" in public places), and in many places, not by norms (snooping and gossip are just fun), but instead, by the costs that friction imposes on anyone who would want to spy. + +Enter the Internet, where the cost of tracking browsing in particular has become quite tiny. If you're a customer at Amazon, then as you browse the pages, Amazon collects the data about what you've looked at. You know this because at the side of the page, there's a list of "recently viewed" pages. Now, because of the architecture of the Net and the function of cookies on the Net, it is easier to collect the data than not. The friction has disappeared, and hence any "privacy" protected by the friction disappears, too. +={Amazon+1;cookies, Internet;Internet:privacy protection on+2} + +Amazon, of course, is not the problem. But we might begin to worry about libraries. If you're one of those crazy lefties who thinks that people should have the "right" to browse in a library without the government knowing which books you look at (I'm one of those lefties, too), then this change in the technology of monitoring might concern you. If it becomes simple to gather and sort who does what in electronic spaces, then the friction-induced privacy of yesterday disappears. +={libraries:privacy rights in use of} + +It is this reality that explains the push of many to define "privacy" on the Internet. It is the recognition that technology can remove what friction before gave us that leads many to push for laws to do what friction did.~{ See, for example, Marc Rotenberg, "Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get)," /{Stanford Technology Law Review}/ 1 (2001): par. 6-18, available at link #72 (describing examples in which technology defines privacy policy). See also Jeffrey Rosen, /{The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age}/ (New York: Random House, 2004) (mapping tradeoffs between technology and privacy). }~ And whether you're in favor of those laws or not, it is the pattern that is important here. We must take affirmative steps to secure a kind of freedom that was passively provided before. A change in technology now forces those who believe in privacy to affirmatively act where, before, privacy was given by default. + +A similar story could be told about the birth of the free software movement. When computers with software were first made available commercially, the software - both the source code and the binaries - was free. You couldn't run a program written for a Data General machine on an IBM machine, so Data General and IBM didn't care much about controlling their software. +={Data General;IBM;free software/open-source software (FS/OSS)+7} + +That was the world Richard Stallman was born into, and while he was a researcher at MIT, he grew to love the community that developed when one was free to explore and tinker with the software that ran on machines. Being a smart sort himself, and a talented programmer, Stallman grew to depend upon the freedom to add to or modify other people's work. +={Stallman, Richard+6} + +In an academic setting, at least, that's not a terribly radical idea. In a math department, anyone would be free to tinker with a proof that someone offered. If you thought you had a better way to prove a theorem, you could take what someone else did and change it. In a classics department, if you believed a colleague's translation of a recently discovered text was flawed, you were free to improve it. Thus, to Stallman, it seemed obvious that you should be free to tinker with and improve the code that ran a machine. This, too, was knowledge. Why shouldn't it be open for criticism like anything else? + +No one answered that question. Instead, the architecture of revenue for computing changed. As it became possible to import programs from one system to another, it became economically attractive (at least in the view of some) to hide the code of your program. So, too, as companies started selling peripherals for mainframe systems. If I could just take your printer driver and copy it, then that would make it easier for me to sell a printer to the market than it was for you. +={proprietary code+1} + +Thus, the practice of proprietary code began to spread, and by the early 1980s, Stallman found himself surrounded by proprietary code. The world of free software had been erased by a change in the economics of computing. And as he believed, if he did nothing about it, then the freedom to change and share software would be fundamentally weakened. + +Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds's "Linux" kernel was added to produce the GNU/Linux operating system. +={Torvalds, Linus;GNU/Linux operating system;Linux operating system} + +Stallman's technique was to use copyright law to build a world of software that must be kept free. Software licensed under the Free Software Foundation's GPL cannot be modified and distributed unless the source code for that software is made available as well. Thus, anyone building upon GPL'd software would have to make their buildings free as well. This would assure, Stallman believed, that an ecology of code would develop that remained free for others to build upon. His fundamental goal was freedom; innovative creative code was a byproduct. +={Free Software Foundation;General Public License (GPL);GPL (General Public License)} + +Stallman was thus doing for software what privacy advocates now do for privacy. He was seeking a way to rebuild a kind of freedom that was taken for granted before. Through the affirmative use of licenses that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed. + +Finally, consider a very recent example that more directly resonates with the story of this book. This is the shift in the way academic and scientific journals are produced. +={academic journals+7;scientific journals+7} + +As digital technologies develop, it is becoming obvious to many that printing thousands of copies of journals every month and sending them to libraries is perhaps not the most efficient way to distribute knowledge. Instead, journals are increasingly becoming electronic, and libraries and their users are given access to these electronic journals through password-protected sites. Something similar to this has been happening in law for almost thirty years: Lexis and Westlaw have had electronic versions of case reports available to subscribers to their service. Although a Supreme Court opinion is not copyrighted, and anyone is free to go to a library and read it, Lexis and Westlaw are also free to charge users for the privilege of gaining access to that Supreme Court opinion through their respective services. +={Lexis and Westlaw+1;law:databases of case reports in+1;libraries:journals in;Supreme Court, U.S.:access to opinions of} + +There's nothing wrong in general with this, and indeed, the ability to charge for access to even public domain materials is a good incentive for people to develop new and innovative ways to spread knowledge. The law has agreed, which is why Lexis and Westlaw have been allowed to flourish. And if there's nothing wrong with selling the public domain, then there could be nothing wrong, in principle, with selling access to material that is not in the public domain. +={public domain:access fees for material in|license system for rebuilding of+22} + +But what if the only way to get access to social and scientific data was through proprietary services? What if no one had the ability to browse this data except by paying for a subscription? + +As many are beginning to notice, this is increasingly the reality with scientific journals. When these journals were distributed in paper form, libraries could make the journals available to anyone who had access to the library. Thus, patients with cancer could become cancer experts because the library gave them access. Or patients trying to understand the risks of a certain treatment could research those risks by reading all available articles about that treatment. This freedom was therefore a function of the institution of libraries (norms) and the technology of paper journals (architecture) - namely, that it was very hard to control access to a paper journal. +={libraries:journals in+2} + +As journals become electronic, however, the publishers are demanding that libraries not give the general public access to the journals. This means that the freedoms provided by print journals in public libraries begin to disappear. Thus, as with privacy and with software, a changing technology and market shrink a freedom taken for granted before. + +This shrinking freedom has led many to take affirmative steps to restore the freedom that has been lost. The Public Library of Science (PLoS), for example, is a nonprofit corporation dedicated to making scientific research available to anyone with a Web connection. Authors of scientific work submit that work to the Public Library of Science. That work is then subject to peer review. If accepted, the work is then deposited in a public, electronic archive and made permanently available for free. PLoS also sells a print version of its work, but the copyright for the print journal does not inhibit the right of anyone to redistribute the work for free. +={PLoS (Public Library of Science);Public Library of Science (PLoS)} + +This is one of many such efforts to restore a freedom taken for granted before, but now threatened by changing technology and markets. There's no doubt that this alternative competes with the traditional publishers and their efforts to make money from the exclusive distribution of content. But competition in our tradition is presumptively a good - especially when it helps spread knowledge and science. + +2~ Rebuilding Free Culture: One Idea +={free culture:Creative Commons license for recreation of+16;copyright:Creative Commons licenses for material in+16;Creative Commons+16} + +The same strategy could be applied to culture, as a response to the increasing control effected through law and technology. + +Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at Stanford University. Its aim is to build a layer of /{reasonable}/ copyright on top of the extremes that now reign. It does this by making it easy for people to build upon other people's work, by making it simple for creators to express the freedom for others to take and build upon their work. Simple tags, tied to human-readable descriptions, tied to bullet-proof licenses, make this possible. +={Stanford University} + +/{Simple}/ - which means without a middleman, or without a lawyer. By developing a free set of licenses that people can attach to their content, Creative Commons aims to mark a range of content that can easily, and reliably, be built upon. These tags are then linked to machine-readable versions of the license that enable computers automatically to identify content that can easily be shared. These three expressions together - a legal license, a human-readable description, and machine-readable tags - constitute a Creative Commons license. A Creative Commons license constitutes a grant of freedom to anyone who accesses the license, and more importantly, an expression of the ideal that the person associated with the license believes in something different than the "All" or "No" extremes. Content is marked with the CC mark, which does not mean that copyright is waived, but that certain freedoms are given. + +These freedoms are beyond the freedoms promised by fair use. Their precise contours depend upon the choices the creator makes. The creator can choose a license that permits any use, so long as attribution is given. She can choose a license that permits only noncommercial use. She can choose a license that permits any use so long as the same freedoms are given to other uses ("share and share alike"). Or any use so long as no derivative use is made. Or any use at all within developing nations. Or any sampling use, so long as full copies are not made. Or lastly, any educational use. +={copyright law:fair use and+1;fair use:creative Commons license vs.+1} + +These choices thus establish a range of freedoms beyond the default of copyright law. They also enable freedoms that go beyond traditional fair use. And most importantly, they express these freedoms in a way that subsequent users can use and rely upon without the need to hire a lawyer. Creative Commons thus aims to build a layer of content, governed by a layer of reasonable copyright law, that others can build upon. Voluntary choice of individuals and creators will make this content available. And that content will in turn enable us to rebuild a public domain. + +This is just one project among many within the Creative Commons. And of course, Creative Commons is not the only organization pursuing such freedoms. But the point that distinguishes the Creative Commons from many is that we are not interested only in talking about a public domain or in getting legislators to help build a public domain. Our aim is to build a movement of consumers and producers of content ("content conducers," as attorney Mia Garlick calls them) who help build the public domain and, by their work, demonstrate the importance of the public domain to other creativity. +={Garlick, Mia} + +The aim is not to fight the "All Rights Reserved" sorts. The aim is to complement them. The problems that the law creates for us as a culture are produced by insane and unintended consequences of laws written centuries ago, applied to a technology that only Jefferson could have imagined. The rules may well have made sense against a background of technologies from centuries ago, but they do not make sense against the background of digital technologies. New rules - with different freedoms, expressed in ways so that humans without lawyers can use them - are needed. Creative Commons gives people a way effectively to begin to build those rules. +={Jefferson, Thomas} + +Why would creators participate in giving up total control? Some participate to better spread their content. Cory Doctorow, for example, is a science fiction author. His first novel, /{Down and Out in the Magic Kingdom}/, was released on- line and for free, under a Creative Commons license, on the same day that it went on sale in bookstores. +={Doctorow, Cory;Down and Out in the Magic Kingdom (Doctorow)} + +Why would a publisher ever agree to this? I suspect his publisher reasoned like this: There are two groups of people out there: (1) those who will buy Cory's book whether or not it's on the Internet, and (2) those who may never hear of Cory's book, if it isn't made available for free on the Internet. Some part of (1) will download Cory's book instead of buying it. Call them bad-(1)s. Some part of (2) will download Cory's book, like it, and then decide to buy it. Call them (2)-goods. If there are more (2)-goods than bad-(1)s, the strategy of releasing Cory's book free on-line will probably /{increase}/ sales of Cory's book. +={books:free on-line releases of+2;Internet:books on+2} + +Indeed, the experience of his publisher clearly supports that conclusion. The book's first printing was exhausted months before the publisher had expected. This first novel of a science fiction author was a total success. + +The idea that free content might increase the value of nonfree content was confirmed by the experience of another author. Peter Wayner, who wrote a book about the free software movement titled /{Free for All}/, made an electronic version of his book free on-line under a Creative Commons license after the book went out of print. He then monitored used book store prices for the book. As predicted, as the number of downloads increased, the used book price for his book increased, as well. +={Wayner, Peter;Free for All (Wayner)} + +These are examples of using the Commons to better spread proprietary content. I believe that is a wonderful and common use of the Commons. There are others who use Creative Commons licenses for other reasons. Many who use the "sampling license" do so because anything else would be hypocritical. The sampling license says that others are free, for commercial or noncommercial purposes, to sample content from the licensed work; they are just not free to make full copies of the licensed work available to others. This is consistent with their own art - they, too, sample from others. Because the /{legal}/ costs of sampling are so high (Walter Leaphart, manager of the rap group Public Enemy, which was born sampling the music of others, has stated that he does not "allow" Public Enemy to sample anymore, because the legal costs are so high~{ /{Willful Infringement: A Report from the Front Lines of the Real Culture Wars}/ (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre production, available at link #72. }~), these artists release into the creative environment content that others can build upon, so that their form of creativity might grow. +={Leaphart, Walter;Public Enemy} + +Finally, there are many who mark their content with a Creative Commons license just because they want to express to others the importance of balance in this debate. If you just go along with the system as it is, you are effectively saying you believe in the "All Rights Reserved" model. Good for you, but many do not. Many believe that however appropriate that rule is for Hollywood and freaks, it is not an appropriate description of how most creators view the rights associated with their content. The Creative Commons license expresses this notion of "Some Rights Reserved," and gives many the chance to say it to others. + +In the first six months of the Creative Commons experiment, over 1 million objects were licensed with these free-culture licenses. The next step is partnerships with middleware content providers to help them build into their technologies simple ways for users to mark their content with Creative Commons freedoms. Then the next step is to watch and celebrate creators who build content based upon content set free. + +These are first steps to rebuilding a public domain. They are not mere arguments; they are action. Building a public domain is the first step to showing people how important that domain is to creativity and innovation. Creative Commons relies upon voluntary steps to achieve this rebuilding. They will lead to a world in which more than voluntary steps are possible. + +Creative Commons is just one example of voluntary efforts by individuals and creators to change the mix of rights that now govern the creative field. The project does not compete with copyright; it complements it. Its aim is not to defeat the rights of authors, but to make it easier for authors and creators to exercise their rights more flexibly and cheaply. That difference, we believe, will enable creativity to spread more easily. + +1~them THEM, SOON +={copyright law:government reforms proposed on+102} + +!_ We will +not reclaim a free culture by individual action alone. It will also take important reforms of laws. We have a long way to go before the politicians will listen to these ideas and implement these reforms. But that also means that we have time to build awareness around the changes that we need. + +In this chapter, I outline five kinds of changes: four that are general, and one that's specific to the most heated battle of the day, music. Each is a step, not an end. But any of these steps would carry us a long way to our end. + +2~1 1. More Formalities +={copyright law:formalities reinstated in+13;formalities+13} + +If you buy a house, you have to record the sale in a deed. If you buy land upon which to build a house, you have to record the purchase in a deed. If you buy a car, you get a bill of sale and register the car. If you buy an airplane ticket, it has your name on it. +={property rights:formalities associated with+1} + +These are all formalities associated with property. They are requirements that we all must bear if we want our property to be protected. + +In contrast, under current copyright law, you automatically get a copyright, regardless of whether you comply with any formality. You don't have to register. You don't even have to mark your content. The default is control, and "formalities" are banished. +={copyright:marking of+5} + +Why? + +As I suggested in chapter 10, the motivation to abolish formalities was a good one. In the world before digital technologies, formalities imposed a burden on copyright holders without much benefit. Thus, it was progress when the law relaxed the formal requirements that a copyright owner must bear to protect and secure his work. Those formalities were getting in the way. + +But the Internet changes all this. Formalities today need not be a burden. Rather, the world without formalities is the world that burdens creativity. Today, there is no simple way to know who owns what, or with whom one must deal in order to use or build upon the creative work of others. There are no records, there is no system to trace - there is no simple way to know how to get permission. Yet given the massive increase in the scope of copyright's rule, getting permission is a necessary step for any work that builds upon our past. And thus, the /{lack}/ of formalities forces many into silence where they otherwise could speak. + +The law should therefore change this requirement~{ The proposal I am advancing here would apply to American works only. Obviously, I believe it would be beneficial for the same idea to be adopted by other countries as well. }~ - but it should not change it by going back to the old, broken system. We should require formalities, but we should establish a system that will create the incentives to minimize the burden of these formalities. + +The important formalities are three: marking copyrighted work, registering copyrights, and renewing the claim to copyright. Traditionally, the first of these three was something the copyright owner did; the second two were something the government did. But a revised system of formalities would banish the government from the process, except for the sole purpose of approving standards developed by others. +={copyright law:registration requirement of} + +3~ Registration and Renewal +={copyright:renewability of+4;copyright law:registration requirement of+4} + +Under the old system, a copyright owner had to file a registration with the Copyright Office to register or renew a copyright. When filing that registration, the copyright owner paid a fee. As with most government agencies, the Copyright Office had little incentive to minimize the burden of registration; it also had little incentive to minimize the fee. And as the Copyright Office is not a main target of government policy- making, the office has historically been terribly underfunded. Thus, when people who know something about the process hear this idea about formalities, their first reaction is panic - nothing could be worse than forcing people to deal with the mess that is the Copyright Office. +={Copyright Office} + +Yet it is always astonishing to me that we, who come from a tradition of extraordinary innovation in governmental design, can no longer think innovatively about how governmental functions can be designed. Just because there is a public purpose to a government role, it doesn't follow that the government must actually administer the role. Instead, we should be creating incentives for private parties to serve the public, subject to standards that the government sets. + +In the context of registration, one obvious model is the Internet. There are at least 32 million Web sites registered around the world. Domain name owners for these Web sites have to pay a fee to keep their registration alive. In the main top-level domains (.com, .org, .net), there is a central registry. The actual registrations are, however, performed by many competing registrars. That competition drives the cost of registering down, and more importantly, it drives the ease with which registration occurs up. +={domain names;Internet:domain name registration on;Web sites, domain name registration of} + +We should adopt a similar model for the registration and renewal of copyrights. The Copyright Office may well serve as the central registry, but it should not be in the registrar business. Instead, it should establish a database, and a set of standards for registrars. It should approve registrars that meet its standards. Those registrars would then compete with one another to deliver the cheapest and simplest systems for registering and renewing copyrights. That competition would substantially lower the burden of this formality - while producing a database of registrations that would facilitate the licensing of content. +={Copyright Office} + +3~ Marking +={copyright:marking of+9} + +It used to be that the failure to include a copyright notice on a creative work meant that the copyright was forfeited. That was a harsh punishment for failing to comply with a regulatory rule - akin to imposing the death penalty for a parking ticket in the world of creative rights. Here again, there is no reason that a marking requirement needs to be enforced in this way. And more importantly, there is no reason a marking requirement needs to be enforced uniformly across all media. + +The aim of marking is to signal to the public that this work is copyrighted and that the author wants to enforce his rights. The mark also makes it easy to locate a copyright owner to secure permission to use the work. + +One of the problems the copyright system confronted early on was that different copyrighted works had to be differently marked. It wasn't clear how or where a statue was to be marked, or a record, or a film. A new marking requirement could solve these problems by recognizing the differences in media, and by allowing the system of marking to evolve as technologies enable it to. The system could enable a special signal from the failure to mark - not the loss of the copyright, but the loss of the right to punish someone for failing to get permission first. + +Let's start with the last point. If a copyright owner allows his work to be published without a copyright notice, the consequence of that failure need not be that the copyright is lost. The consequence could instead be that anyone has the right to use this work, until the copyright owner complains and demonstrates that it is his work and he doesn't give permission.~{ There would be a complication with derivative works that I have not solved here. In my view, the law of derivatives creates a more complicated system than is justified by the marginal incentive it creates. }~ The meaning of an unmarked work would therefore be "use unless someone complains." If someone does complain, then the obligation would be to stop using the work in any new work from then on though no penalty would attach for existing uses. This would create a strong incentive for copyright owners to mark their work. + +That in turn raises the question about how work should best be marked. Here again, the system needs to adjust as the technologies evolve. The best way to ensure that the system evolves is to limit the Copyright Office's role to that of approving standards for marking content that have been crafted elsewhere. +={Copyright Office+1} + +For example, if a recording industry association devises a method for marking CDs, it would propose that to the Copyright Office. The Copyright Office would hold a hearing, at which other proposals could be made. The Copyright Office would then select the proposal that it judged preferable, and it would base that choice /{solely}/ upon the consideration of which method could best be integrated into the registration and renewal system. We would not count on the government to innovate; but we would count on the government to keep the product of innovation in line with its other important functions. +={CDs:copyright marking of;copyright law:on music recordings|registration requirement of+3;recording industry:copyright protections in} + +Finally, marking content clearly would simplify registration requirements. If photographs were marked by author and year, there would be little reason not to allow a photographer to reregister, for example, all photographs taken in a particular year in one quick step. The aim of the formality is not to burden the creator; the system itself should be kept as simple as possible. + +The objective of formalities is to make things clear. The existing system does nothing to make things clear. Indeed, it seems designed to make things unclear. + +If formalities such as registration were reinstated, one of the most difficult aspects of relying upon the public domain would be removed. It would be simple to identify what content is presumptively free; it would be simple to identify who controls the rights for a particular kind of content; it would be simple to assert those rights, and to renew that assertion at the appropriate time. + +2~2 2. Shorter Terms +={copyright:duration of+9} + +The term of copyright has gone from fourteen years to ninety-five years for corporate authors, and life of the author plus seventy years for natural authors. + +In /{The Future of Ideas}/, I proposed a seventy-five-year term, granted in five- year increments with a requirement of renewal every five years. That seemed radical enough at the time. But after we lost /{Eldred v. Ashcroft}/, the proposals became even more radical. /{The Economist}/ endorsed a proposal for a fourteen-year copyright term.~{ "A Radical Rethink," /{Economist,}/ 366:8308 (25 January 2003): 15, available at link #74. }~ Others have proposed tying the term to the term for patents. +={Eldred v. Ashcroft;Future of Ideas, The (Lessig);Lessig, Lawrence+7;copyright:renewability of} + +I agree with those who believe that we need a radical change in copyright's term. But whether fourteen years or seventy-five, there are four principles that are important to keep in mind about copyright terms. + +_1 (1) /{Keep it short:}/ The term should be as long as necessary to give incentives to create, but no longer. If it were tied to very strong protections for authors (so authors were able to reclaim rights from publishers), rights to the same work (not derivative works) might be extended further. The key is not to tie the work up with legal regulations when it no longer benefits an author. + +_1 (2) /{Keep it simple:}/ The line between the public domain and protected content must be kept clear. Lawyers like the fuzziness of "fair use," and the distinction between "ideas" and "expression." That kind of law gives them lots of work. But our framers had a simpler idea in mind: protected versus unprotected. The value of short terms is that there is little need to build exceptions into copyright when the term itself is kept short. A clear and active "lawyer-free zone" makes the complexities of "fair use" and "idea/expression" less necessary to navigate. +={copyright law:fair use and|lawyers as detriment to;lawyers:copyright cultural balance impeded by;fair use:fuzziness of} + +_1 (3) /{Keep it alive:}/ Copyright should have to be renewed. Especially if the maximum term is long, the copyright owner should be required to signal periodically that he wants the protection continued. This need not be an onerous burden, but there is no reason this monopoly protection has to be granted for free. On average, it takes ninety minutes for a veteran to apply for a pension. ~{ Department of Veterans Affairs, Veteran's Application for Compensation and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at link #75. }~ If we make veterans suffer that burden, I don't see why we couldn't require authors to spend ten minutes every fifty years to file a single form. +={veterans' pensions;copyright:renewability of} + +_1 (4) /{Keep it prospective:}/ Whatever the term of copyright should be, the clearest lesson that economists teach is that a term once given should not be extended. It might have been a mistake in 1923 for the law to offer authors only a fifty-six-year term. I don't think so, but it's possible. If it was a mistake, then the consequence was that we got fewer authors to create in 1923 than we otherwise would have. But we can't correct that mistake today by increasing the term. No matter what we do today, we will not increase the number of authors who wrote in 1923. Of course, we can increase the reward that those who write now get (or alternatively, increase the copyright burden that smothers many works that are today invisible). But increasing their reward will not increase their creativity in 1923. What's not done is not done, and there's nothing we can do about that now. + +These changes together should produce an /{average}/ copyright term that is much shorter than the current term. Until 1976, the average term was just 32.2 years. We should be aiming for the same. + +No doubt the extremists will call these ideas "radical." (After all, I call them "extremists.") But again, the term I recommended was longer than the term under Richard Nixon. How "radical" can it be to ask for a more generous copyright law than Richard Nixon presided over? +={Nixon, Richard} + +2~3 3. Free Use Vs. Fair Use +={copyright law:on republishing vs. transformation of original work+11} + +As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the ground to the heavens. The airplane came along. The scope of property rights quickly changed. There was no fuss, no constitutional challenge. It made no sense anymore to grant that much control, given the emergence of that new technology. +={property rights:air traffic vs.;land ownership, air traffic and} + +Our Constitution gives Congress the power to give authors "exclusive right" to "their writings." Congress has given authors an exclusive right to "their writings" plus any derivative writings (made by others) that are sufficiently close to the author's original work. Thus, if I write a book, and you base a movie on that book, I have the power to deny you the right to release that movie, even though that movie is not "my writing." +={derivative works:reform copyright term and scope on+8;Congress, U.S.:on derivative rights+1|on copyright laws+1} + +Congress granted the beginnings of this right in 1870, when it expanded the exclusive right of copyright to include a right to control translations and dramatizations of a work.~{ Benjamin Kaplan, /{An Unhurried View of Copyright}/ (New York: Columbia University Press, 1967), 32. }~ The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law's greatest judges, Judge Benjamin Kaplan. +={Kaplan, Benjamin} + +_1 So inured have we become to the extension of the monopoly to a large range of so-called derivative works, that we no longer sense the oddity of accepting such an enlargement of copyright while yet intoning the abracadabra of idea and expression."~{ Ibid., 56. }~ + +I think it's time to recognize that there are airplanes in this field and the expansiveness of these rights of derivative use no longer make sense. More precisely, they don't make sense for the period of time that a copyright runs. And they don't make sense as an amorphous grant. Consider each limitation in turn. +={property rights:air traffic vs.;copyright:duration of+1} + +/{Term:}/ If Congress wants to grant a derivative right, then that right should be for a much shorter term. It makes sense to protect John Grisham's right to sell the movie rights to his latest novel (or at least I'm willing to assume it does); but it does not make sense for that right to run for the same term as the underlying copyright. The derivative right could be important in inducing creativity; it is not important long after the creative work is done. +={Grisham, John;Congress, U.S.:on derivative rights|on copyright laws} + +/{Scope:}/ Likewise should the scope of derivative rights be narrowed. Again, there are some cases in which derivative rights are important. Those should be specified. But the law should draw clear lines around regulated and unregulated uses of copyrighted material. When all "reuse" of creative material was within the control of businesses, perhaps it made sense to require lawyers to negotiate the lines. It no longer makes sense for lawyers to negotiate the lines. Think about all the creative possibilities that digital technologies enable; now imagine pouring molasses into the machines. That's what this general requirement of permission does to the creative process. Smothers it. +={copyright:scope of} + +This was the point that Alben made when describing the making of the Clint Eastwood CD. While it makes sense to require negotiation for foreseeable derivative rights - turning a book into a movie, or a poem into a musical score - it doesn't make sense to require negotiation for the unforeseeable. Here, a statutory right would make much more sense. +={Alben, Alex;Eastwood, Clint;copyright:statutory licenses in} + +In each of these cases, the law should mark the uses that are protected, and the presumption should be that other uses are not protected. This is the reverse of the recommendation of my colleague Paul Goldstein.~{ Paul Goldstein, /{Copyright's Highway: From Gutenberg to the Celestial Jukebox}/ (Stanford: Stanford University Press, 2003), 187-216. }~ His view is that the law should be written so that expanded protections follow expanded uses. +={Goldstein, Paul} + +Goldstein's analysis would make perfect sense if the cost of the legal system were small. But as we are currently seeing in the context of the Internet, the uncertainty about the scope of protection, and the incentives to protect existing architectures of revenue, combined with a strong copyright, weaken the process of innovation. + +The law could remedy this problem either by removing protection beyond the part explicitly drawn or by granting reuse rights upon certain statutory conditions. Either way, the effect would be to free a great deal of culture to others to cultivate. And under a statutory rights regime, that reuse would earn artists more income. +={copyright:statutory licenses in;statutory licenses} + +2~4 4. Liberate the Music - Again +={peer-to-peer (p2p) file sharing:reform proposals of copyright restraints on+41} + +The battle that got this whole war going was about music, so it wouldn't be fair to end this book without addressing the issue that is, to most people, most pressing - music. There is no other policy issue that better teaches the lessons of this book than the battles around the sharing of music. + +The appeal of file-sharing music was the crack cocaine of the Inter-net's growth. It drove demand for access to the Internet more powerfully than any other single application. It was the Internet's killer app-possibly in two senses of that word. It no doubt was the application that drove demand for bandwidth. It may well be the application that drives demand for regulations that in the end kill innovation on the network. + +The aim of copyright, with respect to content in general and music in particular, is to create the incentives for music to be composed, performed, and, most importantly, spread. The law does this by giving an exclusive right to a composer to control public performances of his work, and to a performing artist to control copies of her performance. + +File-sharing networks complicate this model by enabling the spread of content for which the performer has not been paid. But of course, that's not all the file-sharing networks do. As I described in chapter 5, they enable four different kinds of sharing: +={peer-to-peer (p2p) file sharing:four types of+5} + +_1 A. There are some who are using sharing networks as substitutes for purchasing CDs. + +_1 B. There are also some who are using sharing networks to sample, on the way to purchasing CDs. + +_1 C. There are many who are using file-sharing networks to get access to content that is no longer sold but is still under copyright or that would have been too cumbersome to buy off the Net. + +_1 D. There are many who are using file-sharing networks to get access to content that is not copyrighted or to get access that the copyright owner plainly endorses. + +Any reform of the law needs to keep these different uses in focus. It must avoid burdening type D even if it aims to eliminate type A. The eagerness with which the law aims to eliminate type A, moreover, should depend upon the magnitude of type B. As with VCRs, if the net effect of sharing is actually not very harmful, the need for regulation is significantly weakened. +={cassette recording:VCRs;VCRs} + +As I said in chapter 5, the actual harm caused by sharing is controversial. For the purposes of this chapter, however, I assume the harm is real. I assume, in other words, that type A sharing is significantly greater than type B, and is the dominant use of sharing networks. + +Nonetheless, there is a crucial fact about the current technological context that we must keep in mind if we are to understand how the law should respond. + +Today, file sharing is addictive. In ten years, it won't be. It is addictive today because it is the easiest way to gain access to a broad range of content. It won't be the easiest way to get access to a broad range of content in ten years. Today, access to the Internet is cumbersome and slow - we in the United States are lucky to have broadband service at 1.5 MBs, and very rarely do we get service at that speed both up and down. Although wireless access is growing, most of us still get access across wires. Most only gain access through a machine with a keyboard. The idea of the always on, always connected Internet is mainly just an idea. +={Internet:speed of access+3} + +But it will become a reality, and that means the way we get access to the Internet today is a technology in transition. Policy makers should not make policy on the basis of technology in transition. They should make policy on the basis of where the technology is going. The question should not be, how should the law regulate sharing in this world? The question should be, what law will we require when the network becomes the network it is clearly becoming? That network is one in which every machine with electricity is essentially on the Net; where everywhere you are - except maybe the desert or the Rockies - you can instantaneously be connected to the Internet. Imagine the Internet as ubiquitous as the best cell-phone service, where with the flip of a device, you are connected. + +In that world, it will be extremely easy to connect to services that give you access to content on the fly - such as Internet radio, content that is streamed to the user when the user demands. Here, then, is the critical point: When it is /{extremely}/ easy to connect to services that give access to content, it will be /{easier}/ to connect to services that give you access to content than it will be to download and store content /on the many devices you will have for playing content/. It will be easier, in other words, to subscribe than it will be to be a database manager, as everyone in the download-sharing world of Napster-like technologies essentially is. Content services will compete with content sharing, even if the services charge money for the content they give access to. Already cell-phone services in Japan offer music (for a fee) streamed over cell phones (enhanced with plugs for headphones). The Japanese are paying for this content even though "free" content is available in the form of MP3s across the Web.~{ See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3 April 2002, available at link #76. }~ +={cell phones, music streamed over} + +This point about the future is meant to suggest a perspective on the present: It is emphatically temporary. The "problem" with file sharing - to the extent there is a real problem - is a problem that will increasingly disappear as it becomes easier to connect to the Internet. And thus it is an extraordinary mistake for policy makers today to be "solving" this problem in light of a technology that will be gone tomorrow. The question should not be how to regulate the Internet to eliminate file sharing (the Net will evolve that problem away). The question instead should be how to assure that artists get paid, during this transition between twentieth-century models for doing business and twenty-first-century technologies. + +The answer begins with recognizing that there are different "problems" here to solve. Let's start with type D content - uncopyrighted content or copyrighted content that the artist wants shared. The "problem" with this content is to make sure that the technology that would enable this kind of sharing is not rendered illegal. You can think of it this way: Pay phones are used to deliver ransom demands, no doubt. But there are many who need to use pay phones who have nothing to do with ransoms. It would be wrong to ban pay phones in order to eliminate kidnapping. + +Type C content raises a different "problem." This is content that was, at one time, published and is no longer available. It may be unavailable because the artist is no longer valuable enough for the record label he signed with to carry his work. Or it may be unavailable because the work is forgotten. Either way, the aim of the law should be to facilitate the access to this content, ideally in a way that returns something to the artist. + +Again, the model here is the used book store. Once a book goes out of print, it may still be available in libraries and used book stores. But libraries and used book stores don't pay the copyright owner when someone reads or buys an out-of- print book. That makes total sense, of course, since any other system would be so burdensome as to eliminate the possibility of used book stores' existing. But from the author's perspective, this "sharing" of his content without his being compensated is less than ideal. +={books:out of print|resales of} + +The model of used book stores suggests that the law could simply deem out-of-print music fair game. If the publisher does not make copies of the music available for sale, then commercial and noncommercial providers would be free, under this rule, to "share" that content, even though the sharing involved making a copy. The copy here would be incidental to the trade; in a context where commercial publishing has ended, trading music should be as free as trading books. + +Alternatively, the law could create a statutory license that would ensure that artists get something from the trade of their work. For example, if the law set a low statutory rate for the commercial sharing of content that was not offered for sale by a commercial publisher, and if that rate were automatically transferred to a trust for the benefit of the artist, then businesses could develop around the idea of trading this content, and artists would benefit from this trade. +={copyright infringement lawsuits:statutory licenses in+1;statutory licenses+1} + +This system would also create an incentive for publishers to keep works available commercially. Works that are available commercially would not be subject to this license. Thus, publishers could protect the right to charge whatever they want for content if they kept the work commercially available. But if they don't keep it available, and instead, the computer hard disks of fans around the world keep it alive, then any royalty owed for such copying should be much less than the amount owed a commercial publisher. + +The hard case is content of types A and B, and again, this case is hard only because the extent of the problem will change over time, as the technologies for gaining access to content change. The law's solution should be as flexible as the problem is, understanding that we are in the middle of a radical transformation in the technology for delivering and accessing content. + +So here's a solution that will at first seem very strange to both sides in this war, but which upon reflection, I suggest, should make some sense. + +Stripped of the rhetoric about the sanctity of property, the basic claim of the content industry is this: A new technology (the Internet) has harmed a set of rights that secure copyright. If those rights are to be protected, then the content industry should be compensated for that harm. Just as the technology of tobacco harmed the health of millions of Americans, or the technology of asbestos caused grave illness to thousands of miners, so, too, has the technology of digital networks harmed the interests of the content industry. + +I love the Internet, and so I don't like likening it to tobacco or asbestos. But the analogy is a fair one from the perspective of the law. And it suggests a fair response: Rather than seeking to destroy the Internet, or the p2p technologies that are currently harming content providers on the Internet, we should find a relatively simple way to compensate those who are harmed. +={recording industry:artist remuneration in+4;artists:recording industry payments to} + +The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher.~{ William Fisher, /{Digital Music: Problems and Possibilities}/ (last revised: 10 October 2000), available at link #77; William Fisher, /{Promises to Keep: Technology, Law, and the Future of Entertainment}/ (forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available at link #78. Professor Netanel has proposed a related idea that would exempt noncommercial sharing from the reach of copyright and would establish compensation to artists to balance any loss. See Neil Weinstock Netanel, "Impose a Noncommercial Use Levy to Allow Free P2P File Sharing," available at link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back Broadband?" /{Washington Post,}/ 8 January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations Committee, 26 February 2002, available at link #80; Serguei Osokine, /{A Quick Case for Intellectual Property Use Fee (IPUF),}/ 3 March 2002, available at link #81; Jefferson Graham, "Kazaa, Verizon Propose to Pay Artists Directly," /{USA Today,}/ 13 May 2002, available at link #82; Steven M. Cherry, "Getting Copyright Right," IEEE Spectrum Online, 1 July 2002, available at link #83; Declan Mc-Cullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August 2002, available at link #84. Fisher's proposal is very similar to Richard Stallman's proposal for DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly proportionally, though more popular artists would get more than the less popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85. }~ Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission would (1) be marked with a digital watermark (don't worry about how easy it is to evade these marks; as you'll see, there's no incentive to evade them). Once the content is marked, then entrepreneurs would develop (2) systems to monitor how many items of each content were distributed. On the basis of those numbers, then (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax. +={Fisher, William+2;Promises to Keep (Fisher)+1} + +Fisher's proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, /{Promises to Keep}/. The modification that I would make is relatively simple: Fisher imagines his proposal replacing the existing copyright system. I imagine it complementing the existing system. The aim of the proposal would be to facilitate compensation to the extent that harm could be shown. This compensation would be temporary, aimed at facilitating a transition between regimes. And it would require renewal after a period of years. If it continues to make sense to facilitate free exchange of content, supported through a taxation system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access. + +Fisher would balk at the idea of allowing the system to lapse. His aim is not just to ensure that artists are paid, but also to ensure that the system supports the widest range of "semiotic democracy" possible. But the aims of semiotic democracy would be satisfied if the other changes I described were accomplished - in particular, the limits on derivative uses. A system that simply charges for access would not greatly burden semiotic democracy if there were few limitations on what one was allowed to do with the content itself. +={semiotic democracy;democracy:semiotic} + +No doubt it would be difficult to calculate the proper measure of "harm" to an industry. But the difficulty of making that calculation would be outweighed by the benefit of facilitating innovation. This background system to compensate would also not need to interfere with innovative proposals such as Apple's MusicStore. As experts predicted when Apple launched the MusicStore, it could beat "free" by being easier than free is. This has proven correct: Apple has sold millions of songs at even the very high price of 99 cents a song. (At 99 cents, the cost is the equivalent of a per-song CD price, though the labels have none of the costs of a CD to pay.) Apple's move was countered by Real Networks, offering music at just 79 cents a song. And no doubt there will be a great deal of competition to offer and sell music on-line. +={Apple Corporation;MusicStore;Real Networks;CDs:prices of} + +This competition has already occurred against the background of "free" music from p2p systems. As the sellers of cable television have known for thirty years, and the sellers of bottled water for much more than that, there is nothing impossible at all about "competing with free." Indeed, if anything, the competition spurs the competitors to offer new and better products. This is precisely what the competitive market was to be about. Thus in Singapore, though piracy is rampant, movie theaters are often luxurious - with "first class" seats, and meals served while you watch a movie - as they struggle and succeed in finding ways to compete with "free." +={cable television;television:cable vs. broadcast;Asia, commercial piracy in;piracy:in Asia;film industry:luxury theatres vs. video piracy in} + +This regime of competition, with a backstop to assure that artists don't lose, would facilitate a great deal of innovation in the delivery of content. That competition would continue to shrink type A sharing. It would inspire an extraordinary range of new innovators - ones who would have a right to the content, and would no longer fear the uncertain and barbarically severe punishments of the law. + +In summary, then, my proposal is this: + +The Internet is in transition. We should not be regulating a technology in transition. We should instead be regulating to minimize the harm to interests affected by this technological change, while enabling, and encouraging, the most efficient technology we can create. + +We can minimize that harm while maximizing the benefit to innovation by + +_1 1. guaranteeing the right to engage in type D sharing; + +_1 2. permitting noncommercial type C sharing without liability, and commercial type C sharing at a low and fixed rate set by statute; + +_1 3. while in this transition, taxing and compensating for type A sharing, to the extent actual harm is demonstrated. + +But what if "piracy" doesn't disappear? What if there is a competitive market providing content at a low cost, but a significant number of consumers continue to "take" content for nothing? Should the law do something then? + +Yes, it should. But, again, what it should do depends upon how the facts develop. These changes may not eliminate type A sharing. But the real issue is not whether it eliminates sharing in the abstract. The real issue is its effect on the market. Is it better (a) to have a technology that is 95 percent secure and produces a market of size /{x}/, or (b) to have a technology that is 50 percent secure but produces a market of five times /{x}/? Less secure might produce more unauthorized sharing, but it is likely to also produce a much bigger market in authorized sharing. The most important thing is to assure artists' compensation without breaking the Internet. Once that's assured, then it may well be appropriate to find ways to track down the petty pirates. + +But we're a long way away from whittling the problem down to this subset of type A sharers. And our focus until we're there should not be on finding ways to break the Internet. Our focus until we're there should be on how to make sure the artists are paid, while protecting the space for innovation and creativity that the Internet is. + +2~5 5. Fire Lots of Lawyers +={copyright law:lawyers as detriment to+12;lawyers:copyright cultural balance impeded by+12;legal system, attorney costs in+12} + +I'm a lawyer. I make lawyers for a living. I believe in the law. I believe in the law of copyright. Indeed, I have devoted my life to working in law, not because there are big bucks at the end but because there are ideals at the end that I would love to live. + +Yet much of this book has been a criticism of lawyers, or the role lawyers have played in this debate. The law speaks to ideals, but it is my view that our profession has become too attuned to the client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law. + +The evidence of this bending is compelling. I'm attacked as a "radical" by many within the profession, yet the positions that I am advocating are precisely the positions of some of the most moderate and significant figures in the history of this branch of the law. Many, for example, thought crazy the challenge that we brought to the Copyright Term Extension Act. Yet just thirty years ago, the dominant scholar and practitioner in the field of copyright, Melville Nimmer, thought it obvious.~{ Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer Memorial Lecture), /{UCLA Law Review}/ 48 (2001): 1057, 1069-70. }~ +={Nimmer, Melville;Sonny Bono Copyright Term Extension Act (CTEA) (1998):Supreme Court challenge of} + +However, my criticism of the role that lawyers have played in this debate is not just about a professional bias. It is more importantly about our failure to actually reckon the costs of the law. + +Economists are supposed to be good at reckoning costs and benefits. But more often than not, economists, with no clue about how the legal system actually functions, simply assume that the transaction costs of the legal system are slight.~{ A good example is the work of Professor Stan Liebowitz. Liebowitz is to be commended for his careful review of data about infringement, leading him to question his own publicly stated position - twice. He initially predicted that downloading would substantially harm the industry. He then revised his view in light of the data, and he has since revised his view again. Compare Stan J. Liebowitz, /{Rethinking the Network Economy: The True Forces That Drive the Digital Marketplace}/ (New York: Amacom, 2002), 173 (reviewing his original view but expressing skepticism) with Stan J. Liebowitz, "Will MP3s Annihilate the Record Industry?" working paper, June 2003, available at link #86. Liebowitz's careful analysis is extremely valuable in estimating the effect of file-sharing technology. In my view, however, he underestimates the costs of the legal system. See, for example, /{Rethinking,}/ 174-76. }~ They see a system that has been around for hundreds of years, and they assume it works the way their elementary school civics class taught them it works. + +But the legal system doesn't work. Or more accurately, it doesn't work for anyone except those with the most resources. Not because the system is corrupt. I don't think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so astonishingly high that justice can practically never be done. + +These costs distort free culture in many ways. A lawyer's time is billed at the largest firms at more than $400 per hour. How much time should such a lawyer spend reading cases carefully, or researching obscure strands of authority? The answer is the increasing reality: very little. The law depended upon the careful articulation and development of doctrine, but the careful articulation and development of legal doctrine depends upon careful work. Yet that careful work costs too much, except in the most high-profile and costly cases. + +The costliness and clumsiness and randomness of this system mock our tradition. And lawyers, as well as academics, should consider it their duty to change the way the law works - or better, to change the law so that it works. It is wrong that the system works well only for the top 1 percent of the clients. It could be made radically more efficient, and inexpensive, and hence radically more just. + +But until that reform is complete, we as a society should keep the law away from areas that we know it will only harm. And that is precisely what the law will too often do if too much of our culture is left to its review. + +Think about the amazing things your kid could do or make with digital technology - the film, the music, the Web page, the blog. Or think about the amazing things your community could facilitate with digital technology - a wiki, a barn raising, activism to change something. Think about all those creative things, and then imagine cold molasses poured onto the machines. This is what any regime that requires permission produces. Again, this is the reality of Brezhnev's Russia. + +The law should regulate in certain areas of culture - but it should regulate culture only where that regulation does good. Yet lawyers rarely test their power, or the power they promote, against this simple pragmatic question: "Will it do good?" When challenged about the expanding reach of the law, the lawyer answers, "Why not?" + +We should ask, "Why?" Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away. + +:B~ NOTES + +1~webnotes Notes~# + +Throughout this text, there are references to links on the World Wide Web. As anyone who has tried to use the Web knows, these links can be highly unstable. I have tried to remedy the instability by redirecting readers to the original source through the Web site associated with this book. For each link below, you can go to http://free-culture.cc/notes and locate the original source by clicking on the number after the # sign. If the original link remains alive, you will be redirected to that link. If the original link has disappeared, you will be redirected to an appropriate reference for the material. + +:B~ ACKNOWLEDGMENTS + +1~acknowledgements [Acknowledgments]-# + +This book is the product of a long and as yet unsuccessful struggle that began when I read of Eric Eldred's war to keep books free. Eldred's work helped launch a movement, the free culture movement, and it is to him that this book is dedicated. I received guidance in various places from friends and academics, including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and Kathleen Sullivan. And I received correction and guidance from many amazing students at Stanford Law School and Stanford University. They included Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hall- man, Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine Crump and Harry Surden, who helped direct their research, and to Laura Lynch, who brilliantly managed the army that they assembled, and provided her own critical eye on much of this. Yuko Noguchi helped me to understand the laws of Japan as well as its culture. I am thankful to her, and to the many in Japan who helped me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University Business Law Center, for giving me the chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was there. These are the traditional sorts of help that academics regularly draw upon. But in addition to them, the Internet has made it possible to receive advice and correction from many whom I have never even met. Among those who have responded with extremely helpful advice to requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as well as a long list of those who had specific ideas about ways to develop my argument. They included Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have missed anyone; with computers come glitches, and a crash of my e-mail system meant I lost a bunch of great replies.) Richard Stallman and Michael Carroll each read the whole book in draft, and each provided extremely helpful correction and advice. Michael helped me to see more clearly the significance of the regulation of derivitive works. And Richard corrected an embarrassingly large number of errors. While my work is in part inspired by Stallman's, he does not agree with me in important places throughout this book. Finally, and forever, I am thankful to Bettina, who has always insisted that there would be unending happiness away from these battles, and who has always been right. This slow learner is, as ever, grateful for her perpetual patience and love. + +1~about ABOUT THE AUTHOR + +{lessig.jpg 151x227 "Lawrence Lessig" }http://www.lessig.org/ + +LAWRENCE LESSIG ( http://www.lessig.org ), professor of law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons ( http://creativecommons.org ). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, twice listed in BusinessWeek's "e.biz 25," and named one of Scientific American's "50 visionaries." A graduate of the University of Pennsylvania, Cambridge University, and Yale Law School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals. + +1~misc Other Works and REVIEWS of FreeCulture + +http://www.lessig.org/blog/archives/001840.shtml + +http://www.free-culture.cc/reviews/ + +1~jacket JACKET + +"FREE CULTURE is an entertaining and important look at the past and future of the cold war between the media industry and new technologies." + +-- Marc Andreessen, cofounder of Netscape + +"The twenty-first century could be the century of unprecedented creativity, but only if we embrace the brilliantly articulated messages in Lawrence Lessig's FREE CULTURE. This book is beautifully written, crisply argued, and deeply provocative. Please read it!" + +-- John Seely Brown, coauthor of THE SOCIAL LIFE OF INFORMATION and former Chief Scientist, Xerox PARC + +"America needs a national conversation about the way in which so-called 'intellectual property rights' have come to dominate the rights of scholars, researchers, and everyday citizens. A copyright cartel, bidding for absolute control over digital worlds, music, and movies, now has a veto over technological innovation and has halted most contributions to the public domain from which so many have benefited. The patent system has spun out of control, giving enormous power to entrenched interests, and even trademarks are being misused. Lawrence Lessig's latest book is essential reading for anyone who want to join this conversation. He explains how technology and the law are robbing us of the public domain; but for all his educated pessimism, Professor Lessig offers some solutions, too, because he recognizes that technology can be the catalyst for freedom. If you care about the future of innovation, read this book." + +-- Dan Gillmor, author of MAKING THE NEWS, an upcoming book on the collision of media and technology + +"FREE CULTURE goes beyond illuminating the catastrophe to our culture of increasing regulation to show examples of how we can make a different future. These new-style heroes and examples are rooted in the traditions of the founding fathers in ways that seem obvious after reading this book. Recommended reading to those trying to unravel the shrill hype around 'intellectual property.'" + +-- Brewster Kahle, founder of the Internet Archive + +%% SiSU markup sample Notes: +% SiSU http://www.jus.uio.no/sisu +% SiSU markup for 0.16 and later: +% 0.20.4 header 0~links +% 0.22 may drop image dimensions (rmagick) +% 0.23 utf-8 ß +% 0.38 or later, may use alternative notation for headers, e.g. @title: (instead of 0~title) +% 0.38 document structure alternative markup, experimental (rad) A,B,C,1,2,3 maps to 1,2,3,4,5,6 +% Output: http://www.jus.uio.no/sisu/free_culture.lawrence_lessig/sisu_manifest.html +% SiSU 0.38 experimental (alternative structure) markup used for this document diff --git a/data/v3/samples/free_for_all.peter_wayner.sst b/data/v3/samples/free_for_all.peter_wayner.sst new file mode 100644 index 0000000..27f4136 --- /dev/null +++ b/data/v3/samples/free_for_all.peter_wayner.sst @@ -0,0 +1,3268 @@ +% SiSU 2.0 + +@title: Free For All + :subtitle: How Linux and the Free Software Movement Undercut the High Tech Titans + +@creator: + :author: Wayner, Peter + +@classify: + :type: Book + :topic_register: SiSU:markup sample:book;GNU/Linux:GPL;free software;open source software;software license:GPL;Linux:GNU|Software Libré;book:subject:Linux|Software Libré|technology + :oclc: 43520955 + :isbn: 9780066620503 + +@rights: + :copyright: Copyright (C) Peter Wayner, 2000. + :license: Free For All is Licensed under a Creative Commons License. This License permits non-commercial use of this work, so long as attribution is given. For more information about the license, visit http://creativecommons.org/licenses/by-nc/1.0/ + +@date: + :published: 2002-12-22 + :created: 2002-12-22 + :issued: 2002-12-22 + :available: 2002-12-22 + :modified: 2002-12-22 + :valid: 2002-12-22 + +% :language: US + +@make: + :num_top: 1 + :breaks: new=:A,:B,:C,1 + :skin: skin_wayner + :image: center + +@links: + {The Original Authoritative and Updated Version of the Text available in pdf}http://www.wayner.org/books/ffa + {Free For All @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {@ Amazon.com}http://www.amazon.com/gp/product/0066620503 + {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0066620503 + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow + {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + +:A~ @title @author + +1~acknowledgements Acknowledgments + +This is just a book about the free software movement. It wouldn't be possible without the hard work and the dedication of the thousands if not millions of people who like to spend their free time hacking code. I salute you. Thank you. + +Many people spoke to me during the process of assembling this book, and it would be impossible to cite them all. The list should begin with the millions of people who write and contribute to the various free software lists. The letters, notes, and postings to these lists are a wonderful history of the evolution of free software and an invaluable resource. + +The list should also include the dozens of journalists at places like Slashdot.org, LinuxWorld, Linux magazine, Linux Weekly News, Kernel Traffic, Salon, and the New York Times. I should specifically mention the work of Joe Barr, Jeff Bates, Janelle Brown, Zack Brown, Jonathan Corbet, Elizabeth Coolbaugh, Amy Harmon, Andrew Leonard, Rob Malda, John Markoff, Mark Nielsen, Nicholas Petreley, Harald Radke, and Dave Whitinger. They wrote wonderful pieces that will make a great first draft of the history of the open source movement. Only a few of the pieces are cited directly in the footnotes, largely for practical reasons. The entire body of websites like Slashdot, Linux Journal, Linux World, Kernel Notes, or Linux Weekly News should be required reading for anyone interested in the free software movement. + +There are hundreds of folks at Linux trade shows who took the time to show me their products, T-shirts, or, in one case, cooler filled with beer. Almost everyone I met at the conferences was happy to speak about their experiences with open source software. They were all a great source of information, and I don't even know most of their names. + +Some people went beyond the call of duty. John Gilmore, Ethan Rasiel, and Caroline McKeldin each read drafts when the book was quite unfinished. Their comments were crucial. + +Many friends, acquaintances, and subjects of the book were kind enough to read versions that were a bit more polished, but far from complete: L. David Baron, Jeff Bates, Brian Behlendorf, Alan Cox, Robert Dreyer, Theo de Raadt, Telsa Gwynne, Jordan Hubbard, James Lewis Moss, Kirk McKusick, Sam Ockman, Tim O'Reilly, Sameer Parekh, Bruce Perens, Eric Raymond, and Richard Stallman. + +There are some people who deserve a different kind of thanks. Daniel Greenberg and James Levine did a great job shaping the conception of the book. When I began, it was just a few ideas on paper. My editors, David Conti, Laureen Rowland, Devi Pillai, and Adrian Zackheim, were largely responsible for this transition. Kimberly Monroe suffered through my mistakes as she took the book through its production stages. They took a bunch of rambling comments about a social phenomenon and helped turn it into a book. + +Finally, I want to thank everyone in my family for everything they've given through all of my life. And, of course, Caroline, who edited large portions with a slavish devotion to grammar and style. + +Visit http://www.wayner.org/books/ffa/ for updates, corrections, and additional comments. + +1~edition Version Information + +FREE FOR ALL. Copyright 2000 by Peter Wayner. + +Some Rights Reserved: + +This is [a complete version of] the free electronic version of the book originally published by HarperCollins. The book is still protected by copyright and bound by a license granting you the limited rights to make complete copies for non-commercial purposes. You're welcome to read it in electronic form subject to these conditions: + +1) You may not make derivative works. You must reproduce the work in its entirety. + +2) You may not sell versions. + +3) You refer everyone receiving a copy to the website where they may get the latest corrected version. http://www.wayner.org/books/ffa/ + +A full license developed by the Creative Commons (www.creativecommons.org) will be forthcoming. Please write p3@wayner.org if you have any questions or suggestions. + +See http://www.wayner.org/books/ffa/ for the FIRST PDF EDITION Page layout for this and the original paper edition designed by William Ruoto, see Not printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Wayner, Peter, 1964 Free for all : how Linux and the free software movement undercut the high-tech titans / Peter Wayner. p. cm. ISBN 0-06-662050-3 1. Linux. 2. Operating systems (Computers) 3. Free computer software. I. Title. QA76.76.063 W394 2000 005.4'469 dc21 00-023919 00 01 02 03 04 V/RRD 10 9 8 7 6 5 4 3 2 1 + +{ffa.png 93x140 "Free For All by Peter Wayner" }http://www.amazon.com/exec/obidos/tg/detail/-/0066620503/ + +*{Free For All}* may be purchased at Amazon.com + +1~ Battle + +The world where cash was king, greed was good, and money was power fell off its axis and stopped rotating, if only for a second, in January 1999. Microsoft, the great software giant and unstoppable engine of cash, was defending itself in a courtroom in Washington, D.C. The Department of Justice claimed that Microsoft was a monopoly and was using this power to cut off competitors. Microsoft denied it all and claimed that the world was hurling threat after competitive threat its way. They weren't a monopoly, they were just a very competitive company that managed to withstand the slings and arrows of other equally ruthless competitors out to steal its market share. + +The trial quickly turned into everyone's worst nightmare as the lawyers, the economists, and the programmers filled the courtroom with a thick mixture of technobabble and legal speak. On the stands, the computer nerds spewed out three-letter acronyms (TLAs) as they talked about creating operating systems. Afterward, the legal nerds started slicing them up into one-letter acronyms and testing to see just which of the three letters was really the one that committed the crime. Then the economists came forward and offered their theories on just when a monopoly is a monopoly. Were three letters working in collusion enough? What about two? Everyone in the courtroom began to dread spending the day cooped up in a small room as Microsoft tried to deny what was obvious to practically everyone. + +In the fall and early winter of 1998 and 1999, the Department of Justice had presented its witnesses, who explained how Microsoft had slanted contracts, tweaked software, and twisted arms to ensure that it and it alone got the lion's share of the computer business. Many watching the trial soon developed the opinion that Microsoft had adopted a mixture of tactics from the schoolyard bully, the local mob boss, and the mother from hell. The Department of Justice trotted out a number of witnesses who produced ample evidence that suggested the computer customers of the world will buy Microsoft products unless Microsoft decides otherwise. Competitors must be punished. + +By January, the journalists covering the trial were quietly complaining about this endless waste of time. The Department of Justice's case was so compelling that they saw the whole trial as just a delay in what would eventually come to be a ruling that would somehow split or shackle Microsoft. + +But Microsoft wasn't going to be bullied or pushed into splitting up. The trial allowed them to present their side of the story, and they had one ready. Sure, everyone seemed to use Microsoft products, but that was because they were great. It wasn't because there weren't any competitors, but because the competitors just weren't good enough. + +In the middle of January, Richard Schmalensee, the dean of the Sloan School of Management at the Massachusetts Institute of Technology, took the stand to defend Microsoft. Schmalensee had worked for the Federal Trade Commission and the Department of Justice as an economist who examined the marketplace and the effects of anti-competitive behavior. He studied how monopolies behave, and to him Microsoft had no monopoly power. Now, he was being paid handsomely by Microsoft as an expert witness to repeat this view in court. + +Schmalensee's argument was simple: competitors are popping up all over the place. Microsoft, he said in his direct testimony, "is in a constant struggle for competitive survival. That struggle--the race to win and the victor's perpetual fear of being displaced--is the source of competitive vitality in the microcomputer software industry." + +Schmalensee even had a few competitors ready. "The iMac clearly competes directly and fiercely with Intel-compatible computers running Windows," he said without mentioning that Microsoft had bailed out Apple several months before with hundreds of millions of dollars in an investment. When Steve Jobs, the iCEO of Apple, announced the deal to a crowd of Mac lovers, the crowd booed. Jobs quieted them and tried to argue that the days of stiff competition with Microsoft were over. The scene did such a good job of capturing the total domination of Microsoft that the television movie The Pirates of Silicon Valley used it to illustrate how Bill Gates had won all of the marbles. + +After the announcement of the investment, Apple began shipping Microsoft's Internet Explorer web browser as the preferred browser on its machines. Microsoft's competitor Netscape became just a bit harder to find on the iMac. After that deal, Steve Jobs even began making statements that the old sworn enemies, Apple and Microsoft, were now more partners than competitors. Schmalensee didn't focus on this facet of Apple's new attitude toward competition. + +Next, Schmalensee trotted out BeOS, an operating system made by Be, a small company with about 100 employees run by ex-Apple executive Jean-Louis Gassée. This company had attracted millions of dollars in funding, he said, and some people really liked it. That made it a competitor. + +Schmalensee didn't mention that Be had trouble giving away the BeOS operating system. Gassée approached a number of PC manufacturers to see if they would include BeOS on their machines and give users the chance to switch between two operating systems. Gassée found, to no one's real surprise, that Microsoft's contracts with manufacturers made it difficult, if not practically impossible, to get BeOS in customers' hands. Microsoft controlled much of what the user got to see and insisted on almost total control over the viewer's experience. Schmalensee didn't mention these details in his testimony. BeOS may have been as locked up as a prisoner in a windowless cell in a stone-walled asylum on an island in the middle of the ocean, but BeOS was still a competitor for the love of the fair maiden. + +The last competitor, though, was the most surprising to everyone. Schmalensee saw Linux, a program given away for free, as a big potential competitor. When he said Linux, he really meant an entire collection of programs known as "open source" software. These were written by a loose-knit group of programmers who shared all of the source code to the software over the Internet. + +Open source software floated around the Internet controlled by a variety of licenses with names like the GNU General Public License (GPL). To say that the software was "controlled" by the license is a bit of a stretch. If anything, the licenses were deliberately worded to prohibit control. The GNU GPL, for instance, let users modify the program and give away their own versions. The license did more to enforce sharing of all the source code than it did to control or constrain. It was more an anti-license than anything else, and its author, Richard Stallman, often called it a "copyleft." + +Schmalensee didn't mention that most people thought of Linux as a strange tool created and used by hackers in dark rooms lit by computer monitors. He didn't mention that many people had trouble getting Linux to work with their computers. He forgot to mention that Linux manuals came with subheads like "Disk Druid-like 'fstab editor' available." He didn't delve into the fact that for many of the developers, Linux was just a hobby they dabbled with when there was nothing interesting on television. And he certainly didn't mention that most people thought the whole Linux project was the work of a mad genius and his weirdo disciples who still hadn't caught on to the fact that the Soviet Union had already failed big-time. The Linux folks actually thought sharing would make the world a better place. Fat-cat programmers who spent their stock-option riches on Porsches and balsamic vinegar laughed at moments like this. + +Schmalensee didn't mention these facts. He just offered Linux as an alternative to Windows and said that computer manufacturers might switch to it at any time. Poof. Therefore, Microsoft had competitors. At the trial, the discourse quickly broke down into an argument over what is really a worthy competitor and what isn't. Were there enough applications available for Linux or the Mac? What qualifies as "enough"? Were these really worthy? + +Under cross-examination, Schmalensee explained that he wasn't holding up the Mac, BeOS, or Linux as competitors who were going to take over 50 percent of the marketplace. He merely argued that their existence proved that the barriers produced by the so-called Microsoft monopoly weren't that strong. If rational people were investing in creating companies like BeOS, then Microsoft's power wasn't absolute. + +Afterward, most people quickly made up their minds. Everyone had heard about the Macintosh and knew that back then conventional wisdom dictated that it would soon fail. But most people didn't know anything about BeOS or Linux. How could a company be a competitor if no one had heard of it? Apple and Microsoft had TV commercials. BeOS, at least, had a charismatic chairman. There was no Linux pitchman, no Linux jingle, and no Linux 30-second spot in major media. At the time, only the best-funded projects in the Linux community had enough money to buy spots on late-night community-access cable television. How could someone without money compete with a company that hired the Rolling Stones to pump excitement into a product launch? + +When people heard that Microsoft was offering a free product as a worthy competitor, they began to laugh even louder at the company's chutzpah. Wasn't money the whole reason the country was having a trial? Weren't computer programmers in such demand that many companies couldn't hire as many as they needed, no matter how high the salary? How could Microsoft believe that anyone would buy the supposition that a bunch of pseudo-communist nerds living in their weird techno-utopia where all the software was free would ever come up with software that could compete with the richest company on earth? At first glance, it looked as if Microsoft's case was sinking so low that it had to resort to laughable strategies. It was as if General Motors were to tell the world "We shouldn't have to worry about fixing cars that pollute because a collective of hippies in Ithaca, New York, is refurbishing old bicycles and giving them away for free." It was as if Exxon waved away the problems of sinking oil tankers by explaining that folksingers had written a really neat ballad for teaching birds and otters to lick themselves clean after an oil spill. If no one charged money for Linux, then it was probably because it wasn't worth buying. + +But as everyone began looking a bit deeper, they began to see that Linux was being taken seriously in some parts of the world. Many web servers, it turned out, were already running on Linux or another free cousin known as FreeBSD. A free webserving tool known as Apache had controlled more than 50 percent of the web servers for some time, and it was gradually beating out Microsoft products that cost thousands of dollars. Many of the web servers ran Apache on top of a Linux or a FreeBSD machine and got the job done. The software worked well, and the nonexistent price made it easy to choose. + +Linux was also winning over some of the world's most serious physicists, weapons designers, biologists, and hard-core scientists. Some of the nation's top labs had wired together clusters of cheap PCs and turned them into supercomputers that were highly competitive with the best machines on the market. One upstart company started offering "supercomputers" for $3,000. These machines used Linux to keep the data flowing while the racks of computers plugged and chugged their way for hours on complicated simulations. + +There were other indications. Linux users bragged that their system rarely crashed. Some claimed to have machines that had been running for a year or more without a problem. Microsoft (and Apple) users, on the other hand, had grown used to frequent crashes. The "Blue Screen of Death" that appears on Windows users' monitors when something goes irretrievably wrong is the butt of many jokes. + +Linux users also bragged about the quality of their desktop interface. Most of the uninitiated thought of Linux as a hacker's system built for nerds. Yet recently two very good operating shells called GNOME and KDE had taken hold. Both offered the user an environment that looked just like Windows but was better. Linux hackers started bragging that they were able to equip their girlfriends, mothers, and friends with Linux boxes without grief. Some people with little computer experience were adopting Linux with little trouble. + +Building websites and supercomputers is not an easy task, and it is often done in back rooms out of the sight of most people. When people began realizing that the free software hippies had slowly managed to take over a large chunk of the web server and supercomputing world, they realized that perhaps Microsoft's claim was viable. Web servers and supercomputers are machines built and run by serious folks with bosses who want something in return for handing out paychecks. They aren't just toys sitting around the garage. + +If these free software guys had conquered such serious arenas, maybe they could handle the office and the desktop. If the free software world had created something usable by the programmers' mothers, then maybe they were viable competitors. Maybe Microsoft was right. + +2~ Sleeping In + +While Microsoft focused its eyes and ears upon Washington, one of its biggest competitors was sleeping late. When Richard Schmalensee was prepping to take the stand in Washington, D.C., to defend Microsoft's outrageous fortune against the slings and arrows of a government inquisition, Alan Cox was still sleeping in. He didn't get up until 2:00 PM. at his home in Swansea on the south coast of Wales. This isn't too odd for him. His wife, Telsa, grouses frequently that it's impossible to get him moving each morning without a dose of Jolt Cola, the kind that's overloaded with caffeine. + +The night before, Cox and his wife went to see The Mask of Zorro, the latest movie that describes how Don Diego de la Vega assumed the secret identity of Zorro to free the Mexican people from the tyranny of Don Rafael Montero. In this version, Don Diego, played by Anthony Hopkins, chooses an orphan, Alejandro Murrieta, played by Antonio Banderas, and teaches him to be the next Zorro so the fight can continue. Its theme resonates with writers of open source software: a small band of talented, passionate warriors warding off the evil oppressor. + +Cox keeps an open diary and posts the entries on the web. "It's a nice looking film, with some great stunts and character play," he wrote, but + +_1 You could, however, have fitted the plot, including all the twists, on the back of a matchbox. That made it feel a bit ponderous so it only got a 6 out of 10 even though I'm feeling extremely smug because I spotted one of the errors in the film while watching it not by consulting imdb later. + +By the imdb, he meant the Internet Movie Database, which is one of the most complete listings of film credits, summaries, and glitches available on the Net. Users on the Internet write in with their own reviews and plot synopses, which the database dutifully catalogs and makes available to everyone. It's a reference book with thousands of authors. + +In this case, the big glitch in the film is the fact that one of the train gauges uses the metric system. Mexico converted to this system in 1860, but the film is set in 1841. Whoops. Busted. + +Telsa wrote in her diary, which she also posts to the Net under the title "The More Accurate Diary. Really." + +_1 Dragged him to cinema to see Zorro. I should have remembered he'd done some fencing and found something different. He also claimed he'd spotted a really obscure error. I checked afterward on IMDB, and was amazed. How did he see this? + +Cox is a big bear of a man who wears a long, brown wizard's beard. He has an agile, analytic mind that constantly picks apart a system and probes it for weaknesses. If he's playing a game, he plays until he finds a trick or a loophole that will give him the winning edge. If he's working around the house, he often ends up meddling with things until he fixes and improves them. Of course, he also often breaks them. His wife loves to complain about the bangs and crashes that come from his home office, where he often works until 6:30 in the morning. + +To his wife, this crashing, banging, and late-night hacking is the source of the halfhearted grousing inherent in every marriage. She obviously loves both his idiosyncrasies and the opportunity to discuss just how strange they can be. In January, Telsa was trying to find a way to automate her coffeepot by hooking it up to her computer. + +She wrote in her diary, + +_1 Alan is reluctant to get involved with any attempt to make a coffee-maker switch on via the computer now because he seems to think I will eventually switch it on with no water in and start a fire. I'm not the one who welded tinned spaghetti to the non-stick saucepan. Or set the wok on fire. More than once. Once with fifteen guests in the house. But there we are. + +To the rest of the world, this urge to putter and fiddle with machines is more than a source of marital comedy. Cox is one of the great threats to the continued dominance of Microsoft, despite the fact that he found a way to weld spaghetti to a nonstick pan. He is one of the core developers who help maintain the Linux kernel. In other words, he's one of the group of programmers who helps guide the development of the Linux operating system, the one Richard Schmalensee feels is such a threat to Microsoft. Cox is one of the few people whom Linus Torvalds, the creator of Linux, trusts to make important decisions about future directions. Cox is an expert on the networking guts of the system and is responsible for making sure that most of the new ideas that people suggest for Linux are considered carefully and integrated correctly. Torvalds defers to Cox on many matters about how Linux-based computers talk with other computers over a network. Cox works long and hard to find efficient ways for Linux to juggle multiple connections without slowing down or deadlocking. + +The group that works with Cox and Torvalds operates with no official structure. Millions of people use Linux to keep their computers running, and all of them have copies of the source code. In the 1980s, most companies began keeping the source code to their software as private as possible because they worried that a competitor might come along and steal the ideas the source spelled out. The source code, which is written in languages like C, Java, FORTRAN, BASIC, or Pascal, is meant to be read by programmers. Most companies didn't want other programmers understanding too much about the guts of their software. Information is power, and the companies instinctively played their cards close to their chests. + +When Linus Torvalds first started writing Linux in 1991, however, he decided to give away the operating system for free. He included all the source code because he wanted others to read it, comment upon it, and perhaps improve it. His decision was as much a radical break from standard programming procedure as a practical decision. He was a poor student at the time, and this operating system was merely a hobby. If he had tried to sell it, he wouldn't have gotten anything for it. He certainly had no money to build a company that could polish the software and market it. So he just sent out copies over the Internet. + +Sharing software had already been endorsed by Richard Stallman, a legendary programmer from MIT who believed that keeping source code private was a sin and a crime against humanity. A programmer who shares the source code lets others learn, and those others can contribute their ideas back into the mix. Closed source code leaves users frustrated because they can't learn about the software or fix any bugs. Stallman broke away from MIT in 1984 when he founded the Free Software Foundation. This became the organization that sponsored Stallman's grand project to free source code, a project he called GNU. In the 1980s, Stallman created very advanced tools like the GNU Emacs text editor, which people could use to write programs and articles. Others donated their work and the GNU project soon included a wide range of tools, utilities, and games. All of them were distributed for free. + +Torvalds looked at Stallman and decided to follow his lead with open source code. Torvalds's free software began to attract people who liked to play around with technology. Some just glanced at it. Others messed around for a few hours. Free is a powerful incentive. It doesn't let money, credit cards, purchase orders, and the boss's approval get in the way of curiosity. A few, like Alan Cox, had such a good time taking apart an operating system that they stayed on and began contributing back to the project. + +In time, more and more people like Alan Cox discovered Torvalds's little project on the Net. Some slept late. Others kept normal hours and worked in offices. Some just found bugs. Others fixed the bugs. Still others added new features that they wanted. Slowly, the operating system grew from a toy that satisfied the curiosity of computer scientists into a usable tool that powers supercomputers, web servers, and millions of other machines around the world. + +Today, about a thousand people regularly work with people like Alan Cox on the development of the Linux kernel, the official name for the part of the operating system that Torvalds started writing back in 1991. That may not be an accurate estimate because many people check in for a few weeks when a project requires their participation. Some follow everything, but most people are just interested in little corners. Many other programmers have contributed various pieces of software such as word processors or spreadsheets. All of these are bundled together into packages that are often called plain Linux or GNU/Linux and shipped by companies like Red Hat or more ad hoc groups like Debian.~{ /{Linux Weekly News}/ keeps a complete list of distributors. These range from the small, one- or two-man operations to the biggest, most corporate ones like Red Hat: Alzza Linux, Apokalypse, Armed Linux, Bad Penguin Linux, Bastille Linux, Best Linux (Finnish/Swedish), Bifrost, Black Cat Linux (Ukrainian/Russian), Caldera OpenLinux, CCLinux, Chinese Linux Extension, Complete Linux, Conectiva Linux (Brazilian), Debian GNU/Linux, Definite Linux, DemoLinux, DLD, DLite, DLX, DragonLinux, easyLinux, Enoch, Eridani Star System, Eonova Linux, e-smith server and gateway, Eurielec Linux (Spanish), eXecutive Linux, floppyfw, Floppix, Green Frog Linux, hal91, Hard Hat Linux, Immunix, Independence, Jurix, Kha0s Linux, KRUD, KSI-Linux, Laetos, LEM, Linux Cyrillic Edition, LinuxGT, Linux-Kheops (French), Linux MLD (Japanese), LinuxOne OS, LinuxPPC, LinuxPPP (Mexican), Linux Pro Plus, Linux Router Project, LOAF, LSD, Mandrake, Mastodon, MicroLinux, MkLinux, muLinux, nanoLinux II, NoMad Linux, OpenClassroom, Peanut Linux, Plamo Linux, PLD, Project Ballantain, PROSA, QuadLinux, Red Hat, Rock Linux, RunOnCD, ShareTheNet, Skygate, Slackware, Small Linux, Stampede, Stataboware, Storm Linux, SuSE, Tomsrtbt, Trinux, TurboLinux, uClinux, Vine Linux, WinLinux 2000, Xdenu, XTeamLinux, and Yellow Dog Linux. }~ While Torvalds only wrote the core kernel, people use his name, Linux, to stand for a whole body of software written by thousands of others. It's not exactly fair, but most let it slide. If there hadn't been the Linux kernel, the users wouldn't have the ability to run software on a completely free system. The free software would need to interact with something from Microsoft, Apple, or IBM. Of course, if it weren't for all of the other free software from Berkeley, the GNU project, and thousands of other garages around the world, there would be little for the Linux kernel to do. + +Officially, Linus Torvalds is the final arbiter for the kernel and the one who makes the final decisions about new features. In practice, the group runs like a loosely knit "ad-hocracy." Some people might care about a particular feature like the ability to interface with Macintoshes, and they write special code that makes this task easier. Others who run really big databases may want larger file systems that can store more information without limits. + +All of these people work at their own pace. Some work in their homes, like Alan Cox. Some work in university labs. Others work for businesses that use Linux and encourage their programmers to plug away so it serves their needs. + +The team is united by mailing lists. The Linux Kernel mailing list hooks up Cox in Britain, Torvalds in Silicon Valley, and the others around the globe. They post notes to the list and discuss ideas. Sometimes verbal fights break out, and sometimes everyone agrees. Sometimes people light a candle by actually writing new code to make the kernel better, and other times they just curse the darkness. + +Cox is now one of several people responsible for coordinating the addition of new code. He tests it for compatibility and guides Linux authors to make sure they're working together optimally. In essence, he tests every piece of incoming software to make sure all of the gauges work with the right system of measurement so there will be no glitches. He tries to remove the incompatibilities that marred Zorro. + +Often, others will duplicate Cox's work. Some new features are very popular and have many cooks minding the stew. The technology for speeding up computers with multiple CPUs lets each computer harness the extra power, so many list members test it frequently. They want the fastest machines they can get, and smoothing the flow of data between the CPUs is the best way to let the machines cooperate. + +Other features are not so popular, and they're tackled by the people who need the features. Some people want to hook their Linux boxes up to Macintoshes. Doing that smoothly can require some work in the kernel. Others may want to add special code to enable a special device like a high-speed camera or a strange type of disk drive. These groups often work on their own but coordinate their solutions with the main crowd. Ideally, they'll be able to come up with some patches that solve their problem without breaking some other part of the system. + +It's a very social and political process that unrolls in slow motion through e-mail messages. One person makes a suggestion. Others may agree. Someone may squabble with the idea because it seems inelegant, sloppy, or, worst of all, dangerous. After some time, a rough consensus evolves. Easy problems can be solved in days or even minutes, but complicated decisions can wait as the debate rages for years. + +Each day, Cox and his virtual colleagues pore through the lists trying to figure out how to make Linux better, faster, and more usable. Sometimes they skip out to watch a movie. Sometimes they go for hikes. But one thing they don't do is spend months huddled in conference rooms trying to come up with legal arguments. Until recently, the Linux folks didn't have money for lawyers, and that means they didn't get sidetracked by figuring out how to get big and powerful people like Richard Schmalensee to tell a court that there's no monopoly in the computer operating system business. + +2~ Suits Against Hackers + +Schmalensee and Cox couldn't be more different from each other. One is a career technocrat who moves easily between the government and MIT. The other is what used to be known as an absentminded professor--the kind who works when he's really interested in a problem. It just so happens that Cox is pretty intrigued with building a better operating system than the various editions of Windows that form the basis of Microsoft's domination of the computer industry. + +The battle between Linux and Microsoft is lining up to be the classic fight between the people like Schmalensee and the people like Cox. On one side are the armies of lawyers, lobbyists, salesmen, and expensive executives who are armed with patents, lawsuits, and legislation. They are skilled at moving the levers of power until the gears line up just right and billions of dollars pour into their pockets. They know how to schmooze, toady, beg, or even threaten until they wear the mantle of authority and command the piety and devotion of the world. People buy Microsoft because it's "the standard." No one decreed this, but somehow it has come to be. + +On the other side are a bunch of guys who just like playing with computers and will do anything to take them apart. They're not like the guy in the song by John Mellencamp who sings "I fight authority and authority always wins." Some might have an attitude, but most just want to look at the insides of their computers and rearrange them to hook up to coffee machines or networks. They want to fidget with the guts of their machines. If they weld some spaghetti to the insides, so be it. + +Normally, these battles between the suits and the geeks don't threaten the established order. There are university students around the world building solar-powered cars, but they don't actually pose a threat to the oil or auto industries. "21," a restaurant in New York, makes a great hamburger, but they're not going to put McDonald's out of business. The experimentalists and the perfectionists don't usually knock heads with the corporations who depend upon world domination for their profits. Except when it comes to software. + +Software is different from cars or hamburgers. Once someone writes the source code, copying the source costs next to nothing. That makes it much easier for tinkerers like Cox to have a global effect. If Cox, Stallman, Torvalds, and his chums just happen to luck upon something that's better than Microsoft, then the rest of the world can share their invention for next to nothing. That's what makes Cox, Torvalds, and their buddies a credible threat no matter how often they sleep late. + +It's easy to get high off of the idea alone. A few guys sleeping late and working in bedrooms aren't supposed to catch up to a cash engine like Microsoft. They aren't supposed to create a webserving engine that controls more than half of the web. They aren't supposed to create a graphical user interface for drawing windows and icons on the screen that's much better than Windows. They aren't supposed to create supercomputers with sticker prices of $3,000. Money isn't supposed to lose. + +Of course, the folks who are working on free software projects have advantages that money can't buy. These programmers don't need lawyers to create licenses, negotiate contracts, or argue over terms. Their software is free, and lawyers lose interest pretty quickly when there's no money around. The free software guys don't need to scrutinize advertising copy. Anyone can download the software and just try it. The programmers also don't need to sit in the corner when their computer crashes and complain about the idiot who wrote the software. Anyone can read the source code and fix the glitches. + +The folks in the free source software world are, in other words, grooving on freedom. They're high on the original American dream of life, liberty, and the pursuit of happiness. The founders of the United States of America didn't set out to create a wealthy country where citizens spent their days worrying whether they would be able to afford new sport utility vehicles when the stock options were vested. The founders just wanted to secure the blessings of liberty for posterity. Somehow, the wealth followed. + +This beautiful story is easy to embrace: a group of people started out swapping cool software on the Net and ended up discovering that their free sharing created better software than what a corporation could produce with a mountain of cash. + +The programmers found that unrestricted cooperation made it easy for everyone to contribute. No price tags kept others away. No stereotypes or biases excluded anyone. The software and the source code were on the Net for anyone to read. + +Wide-open cooperation also turned out to be wide-open competition because the best software won the greatest attention. The corporate weasels with the ear of the president could not stop a free source software project from shipping. No reorganization or downsizing could stop people from working on free software if they wanted to hack. The freedom to create was more powerful than money. + +That's an idyllic picture, and the early success of Linux, FreeBSD, and other free packages makes it tempting to think that the success will build. Today, open source servers power more than 50 percent of the web servers on the Internet, and that is no small accomplishment. Getting thousands, if not millions, of programmers to work together is quite amazing given how quirky programmers can be. The ease of copying makes it possible to think that Alan Cox could get up late and still move the world. + +But the 1960s were also an allegedly idyllic time when peace, love, and sharing were going to create a beautiful planet where everyone gave to everyone else in an eternal golden braid of mutual respect and caring. Everyone assumed that the same spirit that so quickly and easily permeated the college campuses and lovefests in the parks was bound to sweep the world. The communes were really happening, man. But somehow, the groovy beat never caught on beyond those small nests of easy caring and giving. Somehow, the folks started dropping back in, getting real jobs, taking on real mortgages, and buying back into the world where money was king. + +Over the years, the same sad ending has befallen many communes, utopian visions, and hypnotic vibes. Freedom is great. It allows brilliant inventors to work independently of the wheels of power. But capital is another powerful beast that drives innovation. The great communes often failed because they never converted their hard work into money, making it difficult for them to save and invest. Giving things away may be, like, really groovy, but it doesn't build a nest egg. + +Right now, the free software movement stands at a crucial moment in its history. In the past, a culture of giving and wide-open sharing let thousands of programmers build a great operating system that was, in many ways, better than anything coming from the best companies. Many folks began working on Linux, FreeBSD, and thousands of other projects as hobbies, but now they're waking up to find IBM, HewlettPackard, Apple, and all the other big boys pounding on their door. If the kids could create something as nice as Linux, everyone began to wonder whether these kids really had enough good stuff to go the distance and last nine innings against the greatest power hitters around. + +Perhaps the free software movement will just grow faster and better as more people hop on board. More users mean more eyes looking for bugs. More users mean more programmers writing new source code for new features. More is better. + +On the other hand, sharing may be neat, but can it beat the power of capital? Microsoft's employees may be just serfs motivated by the dream that someday their meager stock options will be worth enough to retire upon, but they have a huge pile of cash driving them forward. This capital can be shifted very quickly. If Bill Gates wants 1,000 programmers to create something, he can wave his hand. If he wants to buy 1,000 computers, it takes him a second. That's the power of capital. + +Linus Torvalds may be on the cover of magazines, but he can't do anything with the wave of a hand. He must charm and cajole the thousands of folks on the Linux mailing list to make a change. Many of the free software projects may generate great code, but they have to beg for computers. The programmers might even surprise him and come up with an even better solution. They've done it in the past. But no money means that no one has to do what anyone says. + +In the past, the free software movement was like the movies in which Mickey Rooney and Judy Garland put on a great show in the barn. That part won't change. Cool kids with a dream will still be spinning up great programs that will be wonderful gifts for the world. + +But shows that are charming and fresh in a barn can become thin and weak on a big stage on Broadway. The glitches and raw functionality of Linux and free software don't seem too bad if you know that they're built by kids in their spare time. Building real tools for real companies, moms, police stations, and serious users everywhere is another matter. Everyone may be hoping that sharing, caring, and curiosity are enough, but no one knows for certain. Maybe capital will end up winning. Maybe it won't. It's freedom versus assurance; it's wide-open sharing versus stock options; it's cooperation versus intimidation; it's the geeks versus the suits, all in one knockdown, hack-till-you-drop, winner-take-everything fight. + +1~ Lists + +While Alan Cox was sleeping late and Microsoft was putting Richard Schmalensee on the stand, the rest of the open source software world was tackling their own problems. Some were just getting up, others were in the middle of their day, and still others were just going to sleep. This is not just because the open source hackers like to work at odd times around the clock. Some do. But they also live around the globe in all of the different time zones. The sun never sets on the open source empire. + +On January 14, 1999, for instance, Peter Jeremy, an Australian, announced that he had just discovered a potential Y2K problem in the control software in the central database that helped maintain the FreeBSD source code. He announced this by posting a note to a mailing list that forwarded the message to many other FreeBSD users. The problem was that the software simply appended the two characters "19" +to the front of the year. When the new millennium came about a year later, the software would start writing the new date as "19100." Oops. The problem was largely cosmetic because it only occurred in some of the support software used by the system. + +FreeBSD is a close cousin to the Linux kernel and one that predates it in some ways. It descends from a long tradition of research and development of operating systems at the University of California at Berkeley. The name BSD stands for "Berkeley Software Distribution," the name given to one of the first releases of operating system source code that Berkeley made for the world. That small package grew, morphed, and absorbed many other contributions over the years. + +Referring to Linux and FreeBSD as cousins is an apt term because they share much of the same source code in the same way that cousins share some of the same genes. Both borrow source code and ideas from each other. If you buy a disk with FreeBSD, which you can do from companies like Walnut Creek, you may get many of the same software packages that you get from a disk from Red Hat Linux. Both include, for instance, some of the GNU compilers that turn source code into something that can be understood by computers. + +FreeBSD, in fact, has some of its own fans and devotees. The FreeBSD site lists thousands of companies large and small that use the software. Yahoo, the big Internet directory, game center, and news operation, uses FreeBSD in some of its servers. So does Blue Mountain Arts, the electronic greeting card company that is consistently one of the most popular sites on the web. There are undoubtedly thousands more who aren't listed on the FreeBSD site. The software produced by the FreeBSD project is, after all, free, so people can give it away, share it with their friends, or even pretend they are "stealing" it by making a copy of a disk at work. No one really knows how many copies of FreeBSD are out there because there's no reason to count. Microsoft may need to count heads so they can bill everyone for using Windows, but FreeBSD doesn't have that problem. + +That morning, Peter Jeremy's message went out to everyone who subscribed to the FreeBSD mailing list. Some users who cared about the Y2K bug could take Jeremy's patch and use it to fix their software directly. They didn't need to wait for some central bureaucracy to pass judgment on the information. They didn't need to wait for the Y2K guy at FreeBSD to get around to vetting the change. Everyone could just insert the fix because they had all of the source code available to them. + +Of course, most people never use all their freedoms. In this case, most people didn't have to bother dealing with Jeremy's patch because they waited for the official version. The FreeBSD infrastructure absorbed the changes into its source code vaults, and the changes appeared in the next fully updated version. This new complete version is where most people first started using the fix. Jeremy is a programmer who created a solution that was easy for other programmers to use. Most people, however, aren't programmers, and they want their software to be easy to use. Most programmers aren't even interested in poking around inside their machines. Everyone wants the solution to either fix itself or come as close to that as possible. + +Jeremy's message was just one of the hundreds percolating through the FreeBSD community that day. Some fell on deaf ears, some drew snotty comments, and a few gathered some real attention. The mailing lists were fairly complex ecologies where ideas blossomed and grew before they faded away and died. + +Of course, it's not fair to categorize the FreeBSD world as a totally decentralized anarchy. There is one central team led by one man, Jordan Hubbard, who organizes the leadership of a core group of devoted programmers. The group runs the website, maintains an up-to-date version of FreeBSD, and sponsors dozens of lists devoted to different corners or features. One list focuses on hooking up the fast high-performance SCSI hard disks that are popular with people who demand high-performance systems. Another concentrates on building in enough security to keep out attackers who might try to sneak in through the Internet. + +That January 14, a man in Great Britain, Roger Hardiman, was helping a man in Switzerland, Reto Trachsel, hook up a Hauppauge video card to his system. They were communicating on the Multimedia mailing list devoted to finding ways to add audio and video functions to FreeBSD systems. Trachsel posted a note to the list asking for information on how to find the driver software that would make sure that the data coming out of the Hauppauge television receiver would be generally available to the rest of the computer. Hardiman pointed out a solution, but cautioned, "If your Hauppauge card has the MSP34xx Stereo Decoder audio chip, you may get no sound when watching TV. I should get this fixed in the next week or two." + +Solutions like these float around the FreeBSD community. Most people don't really care if they can watch television with their computer, but a few do. The easy access to source code and drivers means that the few can go off and do their own thing without asking some major company for permission. The big companies like Microsoft and Apple, for instance, have internal projects that are producing impressive software for creating and displaying multimedia extravaganzas on computers. But they have a strict view of the world: the company is the producer of high-quality tools that make their way to the consumer who uses them and pays for them in one way or another. + +The list ecology is more organic and anti-hierarchical. Everyone has access to the source code. Everyone can make changes. Everyone can do what they want. There is no need for the FreeBSD management to meet and decide "Multimedia is good." There is no need for a project team to prioritize and list action items and best-of-breed deliverables. Someone in Switzerland decides he wants to hook up a television receiver to his computer and, what do you know, someone in Great Britain has already solved the problem. Well, he's solved it if you don't have an MSP34xx stereo decoder chip in your card. But that should be fixed sooner or later, too. + +2~ Free Doesn't Mean Freeloading + +There are thousands of other mailing lists linking thousands of other projects. It's hard to actually put a number to them because the projects grow, merge, and fade as people's interests wax and wane. The best flourish, and the others just drift away. + +Life on the mailing lists is often a bit more brutal and short than life on earth. The work on the project needs to split up. The volunteers need to organize themselves so that great software can be written. + +On that January 14, a new member of the WINE list was learning just how volunteering works. The guy posted a note to the list that described his Diamond RIO portable music device that lets you listen to MP3 files whenever you want. "I think the WINE development team should drop everything and work on getting this program to work as it doesn't seem like Diamond wants to release a Linux utility for the Rio," he wrote. + +WINE stands for "WINE Is Not an Emulator," which is a joke that only programmers and free software lovers can get. It's first a play on the recursive acronym for the GNU project ("GNU is not UNIX"). It's also a bit of a political statement for programmers. An emulator is a piece of software that makes one computer act like another. A company named Connectix, for instance, sells an emulator that lets a Macintosh behave like a Windows PC so anyone can use their Windows software on the Mac. Emulators, however, are pretty slow because they're constantly translating information on the fly. Anyone who has tried to hold a conversation with someone who speaks a different language knows how frustrating it can be to require a translator. + +The WINE project is an ambitious attempt to knock out one of the most important structural elements of the Microsoft monopoly. Software written for Windows only functions when people buy a version of Windows from Microsoft. When you purchase a Connectix emulator for the Mac, you get a version of Windows bundled with it. + +The WINE project is a group of people who are trying to clone Windows. Well, not clone all of it. They just want to clone what is known as the Win32 API, a panoply of features that make it easier to write software for a Microsoft machine. A programmer who wants to create a new button for a Windows computer doesn't need to write all of the instructions for drawing a frame with three-dimensional shading. A Microsoft employee has already bundled those instructions into the Win32 API. There are millions of functions in these kits that help programmers. Some play audio files, others draw complex images or movies. These features make it easy for programmers to write software for Windows because some of the most repetitive work is already finished. + +The WINE clone of the Win32 is a fascinating example of how open source starts slowly and picks up steam. Bob Amstadt started the project in 1993, but soon turned it over to Alexandre Julliard, who has been the main force behind it. The project, although still far from finished, has produced some dramatic accomplishments, making it possible to run major programs like Microsoft Word or Microsoft Excel on a Linux box without using Windows. In essence, the WINE software is doing a good enough job acting like Windows that it's fooling Excel and Word. If you can trick the cousins, that's not too bad. + +The WINE home page (www.winehq.com) estimates that more than 90,000 people use WINE regularly to run programs for Microsoft Windows without buying Windows. About 140 or more people regularly contribute to the project by writing code or fixing bugs. Many are hobbyists who want the thrill of getting their software to run without Windows, but some are corporate programmers. The corporate programmers want to sell their software to the broadest possible marketplace, but they don't want to take the time to rewrite everything. If they can get their software working well with WINE, then people who use Linux or BSD can use the software that was written for Microsoft Windows. + +The new user who wanted to get his RIO player working with his Linux computer soon got a rude awakening. Andreas Mohr, a German programmer, wrote back, + +_1 Instead of suggesting the WINE team to "drop everything" in order to get a relatively minor thing like PMP300 to work, would you please install WINE, test it, read documentation/bug reports and post a useful bug report here? There are zillions of very useful and impressing Windoze apps out there . . . (After all that's only my personal opinion, maybe that was a bit too harsh ;-) + +Most new free software users soon discover that freedom isn't always easy. If you want to get free software, you're going to have to put in some work. Sometimes you get lucky. The man in Switzerland who posted his note on the same day found out that someone in Britain was solving his problems for him. There was no one, however, working on the RIO software and making sure it worked with WINE. + +Mohr's suggestion was to file a bug report that ranks the usability of the software so the programmers working on WINE can tweak it. This is just the first step in the free software experience. Someone has to notice the problem and fix it. In this case, someone needs to hook up their Diamond RIO MP3 player to a Linux box and try to move MP3 files with the software written for Windows. Ideally, the software will work perfectly, and now all Linux users will be able to use RIO players. In reality, there might be problems or glitches. Some of the graphics on the screen might be wrong. The software might not download anything at all. The first step is for someone to test the product and write up a detailed report about what works and what doesn't. + +At the time of this writing, no one has stepped up to the plate. There are no reports about the Diamond player in the WINE database. Maybe the new user didn't have time. Maybe he wasn't technically sophisticated enough to get WINE running in the first place. It's still not a simple system to use. In any case, his bright idea fell by the wayside. + +The mailing lists buzz with idle chatter about neat, way-out ideas that never come to fruition. Some people see this as a limitation of the free software world. A corporation, however, is able to dispatch a team of programmers to create solutions. These companies have money to spend on polishing a product and making sure it works. Connectix, for instance, makes an emulator that lets Mac users play games written for the Sony PlayStation. The company employs a substantial number of people who simply play all the Sony games from beginning to end until all of the bugs are gone. It's a rough job, but someone has to do it. + +WINE can't pay anyone, and that means that great ideas sometimes get ignored. The free software community, however, doesn't necessarily see this as a limitation. If the RIO player were truly important, someone else would come along and pick up the project. Someone else would do the work and file a bug report so everyone could use the software. If there's no one else, then maybe the RIO software isn't that important to the Linux community. Work gets done when someone really cares enough to do it. + +These mailing lists are the fibers that link the open source community into the network of minds. Before e-mail, they were just a bunch of rebels haunting the moors and rattling around their basements inventing monstrous machines. Now they're smoothly tuned mechanisms coordinated by messages, notes, and missives. They're not madmen who roar at dinner parties about the bad technology from Borg-like corporations. They've got friends now. One person may be a flake, but a group might be on to something. + +1~ Image + +Consider this picture: Microsoft is a megalith built by one man with a towering ego. It may not be fair to lump all of the serfs in the corporate cubicle farms in Redmond into one big army of automatons, but it sure conjures a striking image that isn't altogether inaccurate. Microsoft employees are fiercely loyal and often more dedicated to the cause than the average worker bee. Bill Gates built the company from scratch with the help of several college friends, and this group maintains tight control over all parts of the empire. The flavor of the organization is set by one man with the mind and the ego to micromanage it all. + +Now consider the image of the members of the free software revolution. Practically every newspaper article and colorful feature describing the group talks about a ragtag army of scruffy, bearded programmers who are just a bit too pale from spending their days in front of a computer screen. The writers love to conjure up a picture of a group that looks like it came stumbling out of some dystopian fantasy movie like Mad Max or A Boy and His Dog. They're the outsiders. They're a tightly knit band of rebel outcasts who are planning to free the people from their Microsoft slavery and return to the people the power usurped by Mr. Gates. What do they want? Freedom! When do they want it? Now! + +There's only one problem with this tidy, Hollywood-ready image: it's far from true. While Microsoft is one big corporation with reins of control that keep everyone in line, there is no strong or even weak organization that binds the world of open source software. The movement, if it could be called that, is comprised of individuals, each one free to do whatever he wants with the software. That's the point: no more shackles. No more corporate hegemony. Just pure source code that runs fast, clean, and light, straight through the night. + +This doesn't mean that the image is all wrong. Some of the luminaries like Richard Stallman and Alan Cox have been known to sport long, Rip van Winkle-grade beards. Some folks are strikingly pale. A few could bathe a bit more frequently. Caffeine is a bit too popular with them. Some people look as if they were targets for derision by the idiots on the high school football team. + +But there are many counterexamples. Linus Torvalds drives a Pontiac and lives in a respectable home with a wife and two children. He works during the day at a big company and spends his evenings shopping and doing errands. His life would be perfectly categorized as late 1950s sitcom if his wife, Tove, weren't a former Finnish karate champion and trucks weren't driving up to his house to deliver top-of-the-line computers like a 200-pound monstrosity with four Xeon processors. He told VAR Business, "A large truck brought it to our house and the driver was really confused. He said, 'You don't have a loading dock?'" On second thought, those are the kind of shenanigans that drive most sitcoms. + +There's no easy way to classify the many free source code contributors. Many have children, but many don't. Some don't mention them, some slip in references to them, and others parade them around with pride. Some are married, some are not. Some are openly gay. Some exist in sort of a presexual utopia of early teenage boyhood. Some of them are still in their early teens. Some aren't. + +Some contributors are fairly described as "ragtag," but many aren't. Many are corporate droids who work in cubicle farms during the day and create free software projects at night. Some work at banks. Some work on databases for human resource departments. Some build websites. Everyone has a day job, and many keep themselves clean and ready to be promoted to the next level. Bruce Perens, one of the leaders of the Debian group, used to work at the Silicon Valley glitz factory Pixar and helped write some of the software that created the hit Toy Story. + +Still, he told me, "At the time Toy Story was coming out, there was a space shuttle flying with the Debian GNU/Linux distribution on it controlling a biological experiment. People would say 'Are you proud of working at Pixar?' and then I would say my hobby software was running on the space shuttle now. That was a turnaround point when I realized that Linux might become my career." + +In fact, it's not exactly fair to categorize many of the free software programmers as a loosely knit band of rebel programmers out to destroy Microsoft. It's a great image that feeds the media's need to highlight conflict, but it's not exactly true. The free software movement began long before Microsoft was a household word. Richard Stallman wrote his manifesto setting out some of the precepts in 1984. He was careful to push the notion that programmers always used to share the source code to software until the 1980s, when corporations began to develop the shrink-wrapped software business. In the olden days of the 1950s, 1960s, and 1970s, programmers always shared. While Stallman has been known to flip his middle finger out at the name Bill Gates for the reporting pleasure of a writer from Salon magazine, he's not after Microsoft per se. He just wants to return computing to the good old days when the source was free and sharing was possible. + +The same holds for most of the other programmers. Some contribute source code because it helps them with their day job. Some stay up all night writing code because they're obsessed. Some consider it an act of charity, a kind of noblesse oblige. Some want to fix bugs that bother them. Some want fame, glory, and the respect of all other computer programmers. There are thousands of reasons why new open source software gets written, and very few of them have anything to do with Microsoft. + +In fact, it's a bad idea to see the free software revolution as having much to do with Microsoft. Even if Linux, FreeBSD, and other free software packages win, Microsoft will probably continue to fly along quite happily in much the same way that IBM continues to thrive even after losing the belt of the Heavyweight Computing Champion of the World to Microsoft. Anyone who spends his or her time focused on the image of a ragtag band of ruffians and orphans battling the Microsoft leviathan is bound to miss the real story. + +The fight is really just a by-product of the coming of age of the information business. The computer trade is rapidly maturing and turning into a service industry. In the past, the manufacture of computers and software took place on assembly lines and in cubicle farms. People bought shrink-wrapped items from racks. These were items that were manufactured. Now both computers and software are turning into dirtcheap commodities whose only source of profit is customization and handholding. The real money now is in service. + +Along the way, the free software visionaries stumbled onto a curious fact. They could give away software, and people would give back improvements to it. Software cost practically nothing to duplicate, so it wasn't that hard to just give it away after it was written. At first, this was sort of a pseudo-communist thing to do, but today it seems like a brilliant business decision. If the software is turning into a commodity with a price falling toward zero, why not go all the way and gain whatever you can by freely sharing the code? The profits could come by selling services like programming and education. The revolution isn't about defeating Microsoft; it's just a change in the whole way the world buys and uses computers. + +The revolution is also the latest episode in the battle between the programmers and the suits. In a sense, it's a battle for the hearts and minds of the people who are smart enough to create software for the world. The programmers want to write challenging tools that impress their friends. The suits want to rein in programmers and channel their energy toward putting more money in the pockets of the corporation. The suits hope to keep programmers devoted by giving them fat paychecks, but it's not clear that programmers really want the cash. The freedom to do whatever you want with source code is intrinsically rewarding. The suits want to keep software under lock and key so they can sell it and maximize revenues. The free software revolution is really about a bunch of programmers saying, "Screw the cash. I really want the source code." + +The revolution is also about defining wealth in cyberspace. Microsoft promises to build neat tools that will help us get wherever we want to go today--if we keep writing larger and larger checks. The open source movement promises software with practically no limitations. Which is a better deal? The Microsoft millionaires probably believe in proprietary software and suggest that the company wouldn't have succeeded as it did if it didn't provide something society wanted. They created good things, and the people rewarded them. + +But the open source movement has also created great software that many think is better than anything Microsoft has built. Is society better off with a computer infrastructure controlled by a big corporate machine driven by cash? Or does sharing the source code create better software? Are we at a point where money is not the best vehicle for lubricating the engines of societal advancement? Many in the free software world are pondering these questions. + +Anyone who tunes in to the battle between Microsoft and the world expecting to see a good old-fashioned fight for marketplace domination is going to miss the real excitement. Sure, Linux, FreeBSD, OpenBSD, NetBSD, Mach, and the thousands of other free software projects are going to come out swinging. Microsoft is going to counterpunch with thousands of patents defended by armies of lawyers. Some of the programmers might even be a bit weird, and a few will be entitled to wear the adjective "ragtag." But the real revolution has nothing to do with whether Bill Gates keeps his title as King of the Hill. It has nothing to do with whether the programmers stay up late and work in the nude. It has nothing to do with poor grooming, extravagant beards, Coke-bottle glasses, black trench coats, or any of the other stereotypes that fuel the media's image. + +It's about the gradual commodification of software and hardware. It's about the need for freedom and the quest to create cool software. It's about a world just discovering how much can be accomplished when information can be duplicated for next to nothing. + +The real struggle is finding out how long society can keep hanging ten toes off the edge of the board as we get carried by the wave of freedom. Is there enough energy in the wave and enough grace in society to ride it all the way to the shore? Or will something wicked, something evil, or something sloppy come along and mess it up? + +1~ College + +2~ Speaking in Tongues + +I was part of the free software movement for many years, but I didn't know it. When I was a graduate student, I released the source code to a project. In 1991, that was the sort of thing to do in universities. Publishing the source code to a project was part of publishing a paper about it. And the academy put publishing pretty high on its list. + +My first big release came in May 1991 when I circulated a program that let people hide secret messages as innocuous text. My program turned any message into some cute play-by-play from a baseball game, like "No contact in Mudsville! It's a fastball with wings. No wood on that one. He's uncorking what looks like a spitball. Whooooosh! Strike! +He's out of there." The secret message was encoded in the choices of phrases. "He's out of there" meant something different from "He pops it up to Orville Baskethands." The program enabled information to mutate into other forms, just like the shapeshifting monsters from The X-Files. I sent out an announcement to the influential newsgroup comp.risks and soon hundreds of people were asking for free copies of the software. + +I created this program because Senator Joe Biden introduced a bill into the Senate that would require the manufacturers of all computer networks to provide a way for the police to get copies of any message. The Federal Bureau of Investigation, among others, was afraid that they would have trouble obtaining evidence if people were able to encode data. My software illustrated how hard it would be to stop the flow of information. + +The best, and perhaps most surprising, part of the whole bloom of email came when a fellow I had never met, D. Jason Penney, converted the program from the fading Pascal into the more popular C. He did this on his own and sent the new, converted software back to me. When I asked him whether I could distribute his version, he said that it was my program. He was just helping out. + +I never thought much more about that project until I started to write this book. While two or three people a month would write asking for copies of the software, it never turned into more than a bit of research into the foundations of secret codes and a bit of a mathematical parlor trick. It was more an academic exercise than a prototype of something that could rival Microsoft and make me rich. + +In the past, I thought the project never developed into more than a cute toy because there was no market for it. The product wasn't readily useful for businesses, and no one starts a company without the hope that millions of folks desperately need a product. Projects needed programmers and programmers cost money. I just assumed that other free software projects would fall into the same chasm of lack of funding. + +Now, after investigating the free software world, I am convinced that my project was a small success. Penney's contribution was not just a strange aberration but a relatively common event on the Internet. People are quite willing to take a piece of software that interests them, modify it to suit their needs, and then contribute it back to the world. Sure, most people only have a few hours a week to work on such projects, but they add up. Penney's work made my software easier to use for many C programmers, thus spreading it further. + +In fact, I may have been subconsciously belittling the project. It took only three or four days of my time and a bit more of Penney's, but it was a complete version of a powerful encryption system that worked well. Yes, there was no money flowing, but that may have made it more of a success. Penney probably wouldn't have given me his C version if he knew I was going to sell it. He probably would have demanded a share. Lawyers would have gotten involved. The whole project would have been gummed up with contracts, release dates, distribution licenses, and other hassles that just weren't worth it for a neat way to hide messages. Sure, money is good, but money also brings hassles. + +2~ Cash Versus Sharing + +In the 1980s and 1990s, programmers in universities still shared heavily with the world. The notion of sharing source code with the world owes a great deal to the academic tradition of publishing results so others can read them, think about them, critique them, and ultimately extend them. Many of the government granting agencies like the National Science Foundation and the Defense Advanced Research Projects Agency fostered this sharing by explicitly requiring that people with grants release the source code to the world with no restrictions. Much of the Internet was created by people who gave out these kinds of contracts and insisted upon shared standards that weren't proprietary. This tradition has fallen on harder times as universities became more obsessed with the profits associated with patents and contract research, but the idea is so powerful that it's hard to displace. + +The free software movement in particular owes a great deal to the Massachusetts Institute of Technology. Richard Stallman, the man who is credited with starting the movement, began working in MIT's computer labs in the 1970s. He gets credit for sparking the revolution because he wrote the GNU Manifesto in 1984. The document spelled out why it's essential to share the source code to a program with others. Stallman took the matter to heart because he also practiced what he wrote about and contributed several great programs, including a text editor with thousands of features. + +Of course, Stallman doesn't take credit for coming up with the idea of sharing source code. He remembers his early years at MIT quite fondly and speaks of how people would share their source code and software without restrictions. The computers were new, complicated, and temperamental. Cooperation was the only way that anyone could accomplish anything. That's why IBM shared the source code to the operating systems on their mainframes though the early part of the 1960s. + +This tradition started to fade by the early 1980s as the microcomputer revolution began. Companies realized that most people just wanted software that worked. They didn't need the source code and all the instructions that only programmers could read. So companies quickly learned that they could keep the source code to themselves and keep their customers relatively happy while locking out competitors. They were kings who built a wall to keep out the intruders. + +The GNU Manifesto emerged as the most radical reaction to the trend toward locking up the source code. While many people looked at the GNU Manifesto with confusion, others became partial converts. They began donating code that they had written. Some tossed random utility programs into the soup, some offered games, and some sent in sophisticated packages that ran printers, networks, or even networks of printers. A few even became complete disciples and started writing code full-time for the GNU project. This growth was largely ignored by the world, which became entranced with the growth of Microsoft. More and more programmers, however, were spending more time mingling with the GNU project, and it was taking hold. + +In the early 1980s, an operating system known as UNIX had grown to be very popular in universities and laboratories. AT&T designed and built it at Bell Labs throughout the 1970s. In the beginning, the company shared the source code with researchers and computer scientists in universities, in part because the company was a monopoly that was only allowed to sell telephone service. UNIX was just an experiment that the company started to help run the next generation of telephone switches, which were already turning into specialized computers. + +In the beginning, the project was just an academic exercise, but all of the research and sharing helped create a nice operating system with a wide audience. UNIX turned out to be pretty good. When the phone company started splitting up in 1984, the folks at AT&T wondered how they could turn a profit from what was a substantial investment in time and money. They started by asking people who used UNIX at the universities to sign non-disclosure agreements. + +Stallman looked at this as mind control and the death of a great tradition. Many others at the universities were more pragmatic. AT&T had given plenty of money and resources to the university. Wasn't it fair for the university to give something back? + +Stallman looked at this a bit differently. Yes, AT&T was being nice when they gave grants to the university, but weren't masters always kind when they gave bowls of gruel to their slaves? The binary version AT&T started distributing to the world was just gruel for Stallman. The high priests and lucky few got to read the source code. They got to eat the steak and lobster spread. Stallman saw this central, controlling, corporate force as the enemy, and he began naming his work GNU, which was a recursive acronym that stood for "GNU's Not UNIX." The GNU project aimed to produce a complete working operating system that was going to do everything that UNIX did for none of the moral, emotional, or ethical cost. Users would be able to read the source code to Stallman's OS and modify it without signing a tough non-disclosure agreement drafted by teams of lawyers. They would be able to play with their software in complete freedom. Stallman notes that he never aimed to produce an operating system that didn't cost anything. The world may be entranced with the notion of a price tag of zero, but for Stallman, that was just a side effect of the unrestricted sharing. + +Creating a stand-alone system that would do everything with free software was his dream, but it was a long way from fruition, and Stallman was smart enough to start off with a manageable project. He began by producing a text editor known as GNU Emacs. The program was a big hit because it was highly customizable. Some people just used the program to edit papers, but others programmed it to accomplish fancier tasks such as reading their e-mail and generating automatic responses. One programmer was told by management that he had to include plenty of comments in his source code, so he programmed GNU Emacs to insert them automatically. One professor created a version of GNU Emacs that would automatically insert random praise into requests to his secretary.~{ "Where are those reports I asked you to copy? You're doing a great job. Thanks for all the help," on one day. "Are you ever going to copy those reports? You're doing a great job. Thanks for all the help," on the next. }~ Practically everything in Emacs could be changed or customized. If you didn't like hitting the delete key to fix a mistyped character, then you could arrange for the 6 key to do the same thing. This might make it hard to type numbers, but the user was free to mess up his life as much as he wanted. + +It took Microsoft years to catch up with Stallman's solution, and even then they implemented it in a dangerous way. They let people create little custom programs for modifying documents, but they forgot to prevent malicious code from crying havoc. Today, Microsoft Word allows little programs named macro viruses to roam around the planet. Open up a Word document, and a virus might be lurking. + +In the 1980s, the free software world devoted itself to projects like this. GNU Emacs became a big hit in the academic world where system administrators could install it for free and not worry about counting students or negotiating licenses. Also, smart minds were better able to appreciate the cool flexibility Stallman had engineered into the system. Clever folks wasted time by adding filters to the text editor that would scan their text and translate it into, like, Valley Girl talk or more urban jive. + +The GNU project grew by accepting contributions from many folks across the country. Some were fairly sophisticated, eye-catching programs like GNU Chess, a program that was quite competitive and as good as all but the best packages. Most were simple tools for handling many of the day-to-day chores for running a computer system. System administrators, students, and programmers from around the country would often take on small jobs because they felt compelled to fix something. When they were done, a few would kick the source code over to the GNU project. + +Stallman's biggest programming project for GNU during the 1980s was writing the GNU C compiler (GCC). This program was an important tool that converted the C source code written by humans into the machine code understood by computers. The GCC package was an important cornerstone for the GNU project in several ways. First, it was one of the best compilers around. Second, it could easily move from machine to machine. Stallman personally ported it to several different big platforms like Intel's x86 line of processors. Third, the package was free, which in the case of GNU software meant that anyone was free to use and modify the software. + +The GCC provided an important harmonizing effect to the GNU project. Someone could write his program on a machine built by Digital, compile it with GCC, and be fairly certain that it would run on all other machines with GCC. That allowed the GNU software to migrate freely throughout the world, from machine to machine, from Sun to Apollo to DEC to Intel. + +The GCC's license also attracted many developers and curious engineers. Anyone could use the source code for their projects, and many did. Over time, the compiler moved from machine to machine as users converted it. Sometimes a chip company engineer would rework the compiler to make it work on a new chip. Sometimes a user would do it for a project. Sometimes a student would do it when insomnia struck. Somehow, it moved from machine to machine, and it carried all of the other GNU software with it. + +The next great leap forward came in the early 1990s as people began to realize that a completely free operating system was a serious possibility. Stallman had always dreamed of replacing UNIX with something that was just as good and accompanied by the source code, but it was a large task. It was the reason he started the GNU project. Slowly but surely, the GNU project was assembling the parts to make it work. There were hundreds of small utilities and bigger tools donated to the GNU project, and those little bits were starting to add up. + +The free software movement also owes a great deal to Berkeley, or more precisely to a small group in the Department of Computer Science at the University of California at Berkeley. The group of hardcore hackers, which included professors, research associates, graduate students, and a few undergraduates, had developed a version of UNIX known as BSD (Berkeley Software Distribution). AT&T shared their version of UNIX with Berkeley, and the programmers at Berkeley fixed, extended, and enhanced the software. These extensions formed the core of BSD. Their work was part experimental and part practical, but the results were widely embraced. Sun Microsystems, one of Silicon Valley's UNIX workstation companies, used a version on its machines through the early 1990s when they created a new version known as Solaris by folding in some of AT&T's System V. Many feel that BSD and its approach remain the foundation of the OS. + +The big problem was that the team built their version on top of source code from AT&T. The folks at Berkeley and their hundreds, if not thousands, of friends, colleagues, and students who contributed to the project gave their source code away, but AT&T did not. This gave AT&T control over anyone who wanted to use BSD, and the company was far from ready to join the free software movement. Millions of dollars were spent on the research developing UNIX. The company wanted to make some money back. + +The team at Berkeley fought back, and Keith Bostic, one of the core team, began organizing people together to write the source code that could replace these bits. By the beginning of the 1990s, he had cajoled enough of his friends to accomplish it. In June 1991, the group produced "Networking Release 2," a version that included almost all of a complete working version of UNIX. All you needed to do was add six files to have a complete operating system. + +AT&T was not happy. It had created a separate division known as the UNIX Systems Laboratory and wanted to make a profit. Free source code from Berkeley was tough competition. So the UNIX Systems Laboratory sued. + +This lawsuit marked the end of universities' preeminent role in the development of free software. Suddenly, the lawsuit focused everyone's attention and made them realize that taking money from corporations came into conflict with sharing software source code. Richard Stallman left MIT in 1984 when he understood that a university's need for money would eventually trump his belief in total sharing of source code. Stallman was just a staff member who kept the computers running. He wasn't a tenured professor who could officially do anything. So he started the Free Software Foundation and never looked back. MIT helped him at the beginning by loaning him space, but it was clear that the relationship was near the end. Universities needed money to function. Professors at many institutions had quotas specifying how much grant money they needed to raise. Stallman wasn't bringing in cash by giving away his software. + +Meanwhile, on the other coast, the lawsuit tied up Berkeley and the BSD project for several years, and the project lost valuable energy and time by devoting them to the legal fight. In the meantime, several other completely free software projects started springing up around the globe. These began in basements and depended on machines that the programmer owned. One of these projects was started by Linus Torvalds and would eventually grow to become Linux, the unstoppable engine of hype and glory. He didn't have the money of the Berkeley computer science department, and he didn't have the latest machines that corporations gave them. But he had freedom and the pile of source code that came from unaffiliated, free projects like GNU that refused to compromise and cut intellectual corners. Although Torvalds might not have realized it at the time, freedom turned out to be most valuable of all. + +1~ Quicksand + +The story of the end of the university's preeminence in the free software world is a tale of greed and corporate power. While many saw an unhappy ending coming for many years, few could do much to stop the inevitable collision between the University of California at Berkeley and its former patron, AT&T. + +The lawsuit between AT&T and the University of California at Berkeley had its roots in what marriage counselors love to call a "poorly conceived relationship." By the end of the 1980s, the computer science department at Berkeley had a problem. They had been collaborating with AT&T on the UNIX system from the beginning. They had written some nice code, including some of the crucial software that formed the foundation of the Internet. Students, professors, scientists, and even Wall Street traders loved the power and flexibility of UNIX. Everyone wanted UNIX. + +The problem was that not everyone could get UNIX. AT&T, which had sponsored much of the research at Berkeley, kept an iron hand on its invention. If you wanted to run UNIX, then you needed to license some essential software from AT&T that sat at the core of the system. They were the supreme ruler of the UNIX domain, and they expected a healthy tithe for the pleasure of living within it. + +One of the people who wanted UNIX was the Finnish student Linus Torvalds, who couldn't afford this tithe. He was far from the first one, and the conflict began long before he started to write Linux in 1991. + +Toward the end of the 1980s, most people in the computer world were well aware of Stallman's crusade against the corporate dominance of AT&T and UNIX. Most programmers knew that GNU stood for "GNU's Not UNIX." Stallman was not the only person annoyed by AT&T's attitude toward secrecy and non-disclosure agreements. In fact, his attitude was contagious. Some of the folks at Berkeley looked at the growth of tools emerging from the GNU project and felt a bit used. They had written many pieces of code that found their way into AT&T's version of UNIX. They had contributed many great ideas. Yet AT&T was behaving as if AT&T alone owned it. They gave and gave, while AT&T took. + +Stallman got to distribute his source code. Stallman got to share with others. Stallman got to build his reputation. Programmers raved about Stallman's Emacs. People played GNU Chess at their offices. Others were donating their tools to the GNU project. Everyone was getting some attention by sharing except the folks at Berkeley who collaborated with AT&T. This started to rub people the wrong way. + +Something had to be done, and the folks at Berkeley started feeling the pressure. Some at Berkeley wondered why the professors had entered into such a Faustian bargain with a big corporation. Was the payoff great enough to surrender their academic souls? Just where did AT&T get off telling us what we could publish? + +Others outside of Berkeley looked in and saw a treasure trove of software that was written by academics. Many of them were friends. Some of them had studied at Berkeley. Some had even written some of the UNIX code before they graduated. Some were companies competing with AT&T. All of them figured that they could solve their UNIX problems if they could just get their hands on the source code. There had to be some way to get it released. + +Slowly, the two groups began making contact and actively speculating on how to free Berkeley's version of UNIX from AT&T's grip. + +2~ Breaking the Bond + +The first move to separate Berkeley's version of UNIX from AT&T's control wasn't really a revolution. No one was starting a civil war by firing shots at Fort Sumter or starting a revolution by dropping tea in the harbor. In fact, it started long before the lawsuit and Linux. In 1989, some people wanted to start hooking their PCs and other devices up to the Internet, and they didn't want to use UNIX. + +Berkeley had written some of the software known as TCP/IP that defined how computers on the Internet would communicate and share packets. They wrote the software for UNIX because that was one of the favorite OSs around the labs. Other companies got a copy of the code by buying a source license for UNIX from AT&T. The TCP/IP code was just part of the mix. Some say that the cost of the license reached $250,000 or more and required that the customer pay a per-unit fee for every product that was shipped. Those prices didn't deter the big companies like IBM or DEC. They thought of UNIX as an OS for the hefty workstations and minicomputers sold to businesses and scientists. Those guys had the budget to pay for big hardware, so it was possible to slip the cost of the UNIX OS in with the package. + +But the PC world was different. It was filled with guys in garages who wanted to build simple boards that would let a PC communicate on the Internet. These guys were efficient and knew how to scrounge up cheap parts from all over the world. Some of them had gone to Berkeley and learned to program on the VAXes and Sun workstations running Berkeley's version of UNIX. A few of them had even helped write or debug the code. They didn't see why they had to buy such a big license for something that non-AT&T folks had written with the generous help of large government grants. Some even worked for corporations that gave money to support Berkeley's projects. Why couldn't they get at the code they helped pay to develop? + +Kirk McKusick, one of the members of the Computer Systems Research Group at the time, remembers, "People came to us and said, +'Look, you wrote TCP/IP. Surely you shouldn't require an AT&T license for that?' These seemed like reasonable requests. We decided to start with something that was clearly not part of the UNIX we got from AT&T. It seemed very clear that we could pull out the TCP/IP stack and distribute that without running afoul of AT&T's license." + +So the Berkeley Computer Systems Research Group (CSRG) created what they called Network Release 1 and put it on the market for $1,000 in June 1989. That wasn't really the price because the release came with one of the first versions of what would come to be known as the BSD-style license. Once you paid the $1,000, you could do whatever you wanted with the code, including just putting it up on the Net and giving it away. + +"We thought that two or three groups would pay the money and then put the code on the Internet, but in fact, hundreds of sites actually paid the one thousand dollars for it," says McKusick and adds, "mostly so they could get a piece of paper from the university saying, 'You can do what you want with this.'" + +This move worked out well for Berkeley and also for UNIX. The Berkeley TCP/IP stack became the best-known version of the code, and it acted like a reference version for the rest of the Net. If it had a glitch, everyone else had to work around the glitch because it was so prevalent. Even today, companies like Sun like to brag that their TCP/IP forms the backbone of the Net, and this is one of the reasons to buy a Sun instead of an NT workstation. Of course, the code in Sun's OS has a rich, Berkeley-based heritage, and it may still contain some of the original BSD code for controlling the net. + +2~ In for a Penny, in for a Pound + +In time, more and more companies started forming in the Bay Area and more and more realized that Berkeley's version of UNIX was the reference for the Internet. They started asking for this bit or that bit. + +Keith Bostic heard these requests and decided that the Berkeley CSRG needed to free up as much of the source code as possible. Everyone agreed it was a utopian idea, but only Bostic thought it was possible to accomplish. McKusick writes, in his history of BSD, "Mike Karels [a fellow software developer] and I pointed out that releasing large parts of the system was a huge task, but we agreed that if he could sort out how to deal with re-implementing the hundreds of utilities and the massive C library, then we would tackle the kernel. Privately, Karels and I thought that would be the end of the discussion." + +Dave Hitz, a good friend of Bostic's, remembers the time. "Bostic was more of a commanding type. He just rounded up all of his friends to finish up the code. You would go over to his house for dinner and he would say, 'I've got a list. What do you want to do?' I think I did the cp command and maybe the look command." Hitz, of course, is happy that he took part in the project. He recently founded Network Appliance, a company that packages a stripped-down version of BSD into a file server that is supposed to be a fairly bulletproof appliance for customers. Network Appliance didn't need to do much software engineering when they began. They just grabbed the free version of BSD and hooked it up. + +Bostic pursued people far and wide to accomplish the task. He gave them the published description of the utility or the part of the library from the documentation and then asked them to reimplement it without looking at the source code. This cloning operation is known as a cleanroom operation because it is entirely legal if it takes place inside a metaphorical room where the engineers inside don't have any information about how the AT&T engineers built UNIX. + +This was not an easy job, but Bostic was quite devoted and pursued people everywhere. He roped everyone who could code into the project and often spent time fixing things afterward. The task took 18 months and included more than 400 people who received just notoriety and some thanks afterward. The 400-plus names are printed in the book he wrote with McKusick and Karels in 1996. + +When Bostic came close to finishing, he stopped by McKusick's office and asked how the kernel was coming along. This called McKusick and Karels's bluff and forced them to do some hard engineering work. In some respects, Bostic had the easier job. Writing small utility programs that his team used was hard work, but it was essentially preorganized and segmented. Many folks over the years created manual files that documented exactly what the programs were supposed to do. Each program could be assigned separately and people didn't need to coordinate their work too much. These were just dishes for a potluck supper. + +Cleaning up the kernel, however, was a different matter. It was much larger than many of the smaller utilities and was filled with more complicated code that formed a tightly coordinated mechanism. Sloppy work in one of the utility files would probably affect only that one utility, but a glitch in the kernel would routinely bring down the entire system. If Bostic was coordinating a potluck supper, McKusick and Karels had to find a way to create an entire restaurant that served thousands of meals a day to thousands of customers. Every detail needed to work together smoothly. + +To make matters more complicated, Berkeley's contributions to the kernel were mixed in with AT&T's contributions. Both had added on parts, glued in new features, and created new powers over the years. They were de facto partners on the project. Back in the good old days, they had both shared their source code without any long-term considerations or cares. But now that AT&T claimed ownership of it all, they had to find a way to unwind all of the changes and figure out who wrote what. + +McKusick says, "We built a converted database up line by line. We took every line of code and inserted it into the database. You end up finding pretty quickly where the code migrated to and then you decide whether it is sufficiently large enough to see if it needed recoding." + +This database made life much easier for them and they were able to plow through the code, quickly recoding islets of AT&T code here and there. They could easily pull up a file filled with source code and let the database mark up the parts that might be owned by AT&T. Some parts went quickly, but other parts dragged on. By late spring of 1991, they had finished all but six files that were just too much work. + +It would be nice to report that they bravely struggled onward, forgoing all distractions like movies, coffeehouses, and friends, but that's not true. They punted and tossed everything out the door and called it "Network Release 2."The name implied that this new version was just a new revision of their earlier product, Network Release 1, and this made life easier with the lawyers. They just grabbed the old, simple license and reused it. It also disguised the fact that this new pile of code was only about six files short of a full-grown OS. + +The good news about open source is that projects often succeed even when they initially fail. A commercial product couldn't ship without the complete functionality of the six files. Few would buy it. Plus, no one could come along, get a bug under his bonnet, and patch up the holes. Proprietary source code isn't available and no one wants to help someone else in business without compensation. + +The new, almost complete UNIX, however, was something different. It was a university project and so university rules of camaraderie and sharing seemed to apply. Another programmer, Bill Jolitz, picked up Network Release 2 and soon added the code necessary to fill the gap. He became fascinated with getting UNIX up and running on a 386 processor, a task that was sort of like trying to fit the latest traction control hardware and anti-lock brakes on a go-cart. At the time, serious computer scientists worked on serious machines from serious workstation and minicomputer companies. The PC industry was building toys. Of course, there was something macho to the entire project. Back then I remember joking to a friend that we should try to get UNIX running on the new air-conditioning system, just to prove it could be done. + +Jolitz's project, of course, found many people on the Net who didn't think it was just a toy. Once he put the source code on the Net, a bloom of enthusiasm spread through the universities and waystations of the world. People wanted to experiment with a high-grade OS and most could only afford relatively cheap hardware like the 386. Sure, places like Berkeley could get the government grant money and the big corporate donations, but 2,000-plus other schools were stuck waiting. Jolitz's version of 386BSD struck a chord. + +While news traveled quickly to some corners, it didn't reach Finland. Network Release 2 came in June 1991, right around the same time that Linus Torvalds was poking around looking for a high-grade OS to use in experiments. Jolitz's 386BSD came out about six months later as Torvalds began to dig into creating the OS he would later call Linux. Soon afterward, Jolitz lost interest in the project and let it lie, but others came along. In fact, two groups called NetBSD and FreeBSD sprang up to carry the torch. + +Although it may seem strange that three groups building a free operating system could emerge without knowing about each other, it is important to realize that the Internet was a very different world in 1991 and 1992. The World Wide Web was only a gleam in some people's eyes. Only the best universities had general access to the web for its students, and most people didn't understand what an e-mail address was. Only a few computer-related businesses like IBM and Xerox put their researchers on the Net. The community was small and insular. + +The main conduits for information were the USENET newsgroups, which were read only by people who could get access through their universities. This technology was an efficient way of sharing information, although quite flawed. Here's how it worked: every so often, each computer would call up its negotiators and swap the latest articles. Information traveled like gossip, which is to say that it traveled quickly but with very uneven distribution. Computers were always breaking down or being upgraded. No one could count on every message getting to every corner of the globe. + +The NetBSD and the FreeBSD forks of the BSD kernel continue to exist separately today. The folks who work on NetBSD concentrate on making their code run on all possible machines, and they currently list 21 different platforms that range from the omnipresent Intel 486 to the gone but not forgotten Commodore Amiga. + +The FreeBSD team, on the other hand, concentrates on making their product work well on the Intel 386. They added many layers of installation tools to make it easier for the average Joe to use, and now it's the most popular version of BSD code around. + +Those two versions used the latest code from Berkeley. Torvalds, on the other hand, didn't know about the 386BSD, FreeBSD, or NetBSD. If he had found out, he says, he probably would have just downloaded the versions and joined one of those teams. Why run off and reinvent the wheel? + +2~ AT&T Notices the Damage + +Soon after Network Release 2 hit the world, the real problems began for BSD. While AT&T didn't really notice 386BSD, NetBSD, or FreeBSD, they did notice a company called Berkeley Software Design Incorporated. This corporation created their own OS by taking Network Release 2 and adding their own versions of the missing six files, but they didn't release this for free on the Net. They started putting advertisements in the trade press offering the source code for $995, a price they claimed was a huge discount over AT&T's charge. + +The modern, post-Internet reader should find this hilarious. Two to three groups and countless splinter factions were distributing the BSD software over the Internet for free and this didn't seem to catch AT&T's attention, but the emergence of BSDI selling the same product for almost $1,000 rang alarm bells. That was the time, though, before the Internet infrastructure became ubiquitous. In the early 1990s, people only halfjoked that FedEx was the most efficient Internet Service Provider around. It was much faster to copy hundreds of megabytes of data onto a magnetic tape and drop it in FedEx than to actually try to copy it over the Internet. Back then only real nerds were on the Internet. Managers and lawyers wore suits and got their news from the trade press and advertisements. + +BSDI's cost-cutting was a major headache for AT&T. This small company was selling a product that AT&T felt it had shepherded, organized, and coordinated over time. + +AT&T started off by claiming UNIX as a trademark and threatening BSDI with infringing upon it. BSDI countered by changing the ads to emphasize that BSDI was a separate company that wasn't related to AT&T or the subsidiary AT&T created to market UNIX known as UNIX System Laboratories, or USL. + +That didn't work. USL saw its cash cow melting away and assumed folks would jump at the chance to buy a complete OS with all the source code for $995. The price seems outrageously high today, but that's only after the stiff price competition of the 1990s. It was still a good deal at the time. So USL sued BSDI for actually stealing proprietary source code from AT&T. + +This argument didn't work, either. BSDI turned around and waved the Network Release 2 license they got from Berkeley. They bought all but six of the files from Berkeley, and Berkeley claimed that all of the source code was theirs to sell. BSDI wrote the missing six files themselves and they were quite sure that they got no help from AT&T or USL. Therefore, BSDI didn't steal anything. If AT&T thought it was stolen, they should take it up with Berkeley. The judge bought BSDI's argument and narrowed the case to focus on the six files. + +This was a crucial moment in the development of the free software movement and its various kernels. AT&T found itself cornered. Backing down meant giving up its claim to UNIX and the wonderful stream of license fees that kept pouring in. Pressing ahead meant suing the University of California, its old friend, partner, and author of lots of UNIX code. Eventually, the forces of greed and omnipotent corporate power won out and AT&T's USL filed a lawsuit naming both BSDI and the University of California. + +Taking sides in this case was pretty easy for most folks in the academic and free software world. The CSRG at Berkeley did research. They published things. University research was supposed to be open and freely distributed. AT&T was trying to steal the work of hundreds if not thousands of students, researchers, professors, and others. That wasn't fair. + +In reality, AT&T did pay something for what they got. They sent their employees to Berkeley to get master's degrees, they shared the original Versions 5, 6, and 7 and 32/V source code, and they even sent some hardware to the computer science department. The original creators of UNIX lived and worked at Bell Labs drawing AT&T paychecks. Berkeley students got summer jobs at AT&T. There wasn't an official quid-pro-quo. It wasn't very well spelled out, but AT&T was paying something. + +Some folks on AT&T's side might even want to paint the CSRG at Berkeley as filled with academic freeloaders who worked hard to weasel money out of the big corporations without considering the implications. The folks at Berkeley should have known that AT&T was going to want something for its contributions. There's no such thing as a free lunch. + +There's something to this argument because running a high-rent research project at a top-notch school requires a fair amount of guile and marketing sophistication. By the 1990s, the top universities had become very good at making vague, unofficial promises with their pleas for corporate gifts. This sort of coquetry and teasing was bound to land someone in a fight. McKusick, for instance, says that the CSRG designed the BSD license to be very liberal to please the corporate donors. "Hewlett-Packard put in hundreds of thousands of dollars and they were doing so under the understanding that they were going to use the code," he said. If the BSD hadn't kept releasing code like Network Release 2 in a clear, easy-to-reuse legal form, he says, some of the funding for the group would have dried up. + +But there's also a bit of irony here. McKusick points out that AT&T was far from the most generous company to support the CSRG. "In fact, we even had to pay for our license to UNIX," he says before adding, "although it was only ninety-nine dollars at the time." + +AT&T's support of the department was hardly bountiful. The big checks weren't grants outright. They paid for the out-of-state tuition for AT&T employees who came to Berkeley to receive their master's degrees. While AT&T could have sent their employees elsewhere, there's no doubt that there are more generous ways to send money to researchers. + +McKusick also notes that AT&T didn't even send along much hardware. The only hardware he remembers receiving from them were some 5620 terminals and a Datakit circuit-based switch that he says "was a huge headache that really did us very little good." Berkeley was on the forefront of developing the packet-based standards that would dominate the Internet. If anything, the older circuit-based switch convinced the Berkeley team that basing the Internet on the old phone system would be a major mistake. + +To make matters worse, AT&T often wanted the BSD team to include features that would force all the BSD users to buy a newer, more expensive license from AT&T. In addition, license verification was never a quick or easy task. McKusick says, "We had a person whose fulltime job was to keep the AT&T licensing person happy." + +In the end, he concludes, "They paid us next to nothing and got a huge windfall." + +Choosing sides in this battle probably isn't worth the trouble at this point because Berkeley eventually won. The hard work of Bostic's hundreds of volunteers and the careful combing of the kernel by the CSRG paid off. AT&T's case slowly withered away as the University of California was able to show how much of the distribution came from innocent, non-AT&T sources. + +Berkeley even landed a few good blows of its own. They found that AT&T had stripped copyrights from Berkeley code that they had imported to System V and had failed to provide due credit to Berkeley. The BSD license is probably one of the least restrictive ones in the world. Companies like Apple use BSD source code all the time. The license has few requirements beyond keeping the copyright notice intact and including some credit for the University of California. AT&T didn't pay attention to this and failed to cite Berkeley's contributions in their releases. Oops. The CSRG countersued claiming that AT&T had violated a license that may be one of the least restrictive in the world. + +The battle raged in the courts for more than a year. It moved from federal to California state court. Judges held hearings, lawyers took depositions, clerks read briefs, judges heard arguments presented by briefs written by lawyers who had just held depositions. The burn rate of legal fees was probably larger than most Internet start-ups. + +Any grown-up should take one look at this battle and understand just how the free software movement got so far. While the Berkeley folks were meeting with lawyers and worrying about whether the judges were going to choose the right side, Linus Torvalds was creating his own kernel. He started Linux on his own, and that made him a free man. + +In the end, the University of California settled the lawsuit after the USL was sold to Novell, a company run by Ray Noorda. McKusick believes that Noorda's embrace of free competition made a big difference, and by January 1994 the legal fight was over. Berkeley celebrated by releasing a completely free and unencumbered 4.4BSD-Lite in June 1994. + +The terms of the settlement were pretty minor. Net Release 2 came with about 18,000 files. 4.4BSD-Lite contained all but three of them. Seventy of them included a new, expanded copyright that gave some credit to AT&T and USL, but didn't constrain anyone's right to freely distribute them. McKusick, Bostic, and the hundreds of volunteers did a great job making sure that Net Release 2 was clean. In fact, two people familiar with the settlement talks say that Berkeley just deleted a few files to allow USL's lawyers to save face. We'll never know for sure because the details of the settlement are sealed. McKusick and the others can't talk about the details. That's another great example of how the legal system fails the American people and inadvertently gives the free software world another leg up. There's no information in the record to help historians or give future generations some hints on how to solve similar disputes. + +1~ Outsider + +The battle between the University of California at Berkeley's computer science department and AT&T did not reach the court system until 1992, but the friction between the department's devotion to sharing and the corporation's insistence on control started long before. + +While the BSD team struggled with lawyers, a free man in Finland began to write his own operating system without any of the legal or institutional encumbrance. At the beginning he said it was a project that probably wouldn't amount to much, but only a few years later people began to joke about "Total World Domination." A few years after that, they started using the phrase seriously. + +In April 1991, Linus Torvalds had a problem. He was a relatively poor university student in Finland who wanted to hack in the guts of a computer operating system. Microsoft's machines at the time were the cheapest around, but they weren't very interesting. The basic Disk Operating System (DOS) essentially let one program control the computer. Windows 3.1 was not much more than a graphical front end to DOS featuring pretty pictures--icons--to represent the files. Torvalds wanted to experiment with a real OS, and that meant UNIX or something that was UNIX-like. These real OSs juggled hundreds of programs at one time and often kept dozens of users happy. Playing with DOS was like practicing basketball shots by yourself. Playing with UNIX was like playing with a team that had 5, 10, maybe as many as 100 people moving around the court in complicated, clockwork patterns. + +But UNIX machines cost a relative fortune. The high-end customers requested the OS, so generally only high-end machines came with it. A poor university student in Finland didn't have the money for a topnotch Sun Sparc station. He could only afford a basic PC, which came with the 386 processor. This was a top-of-the-line PC at the time, but it still wasn't particularly exciting. A few companies made a version of UNIX for this low-end machine, but they charged for it. + +In June 1991, soon after Torvalds~{ Everyone in the community, including many who don't know him, refers to him by his first name. The rules of style prevent me from using that in something as proper as a book. }~ started his little science project, the Computer Systems Research Group at Berkeley released what they thought was their completely unencumbered version of BSD UNIX known as Network Release 2. Several projects emerged to port this to the 386, and the project evolved to become the FreeBSD and NetBSD versions of today. Torvalds has often said that he might never have started Linux if he had known that he could just download a more complete OS from Berkeley. + +But Torvalds didn't know about BSD at the time, and he's lucky he didn't. Berkeley was soon snowed under by the lawsuit with AT&T claiming that the university was somehow shipping AT&T's intellectual property. Development of the BSD system came to a screeching halt as programmers realized that AT&T could shut them down at any time if Berkeley was found guilty of giving away source code that AT&T owned. + +If he couldn't afford to buy a UNIX machine, he would write his own version. He would make it POSIX-compatible, a standard for UNIX designers, so others would be able to use it. Minix was another UNIXlike OS that a professor, Andrew Tanenbaum, wrote for students to experiment with the guts of an OS. Torvalds initially considered using Minix as a platform. Tanenbaum included the source code to his project, but he charged for the package. It was like a textbook for students around the world. + +Torvalds looked at the price of Minix ($150) and thought it was too much. Richard Stallman's GNU General Public License had taken root in Torvalds's brain, and he saw the limitations in charging for software. GNU had also produced a wide variety of tools and utility programs that he could use on his machine. Minix was controlled by Tanenbaum, albeit with a much looser hand than many of the other companies at the time. + +People could add their own features to Minix and some did. They did get a copy of the source code for $150. But few changes made their way back into Minix. Tanenbaum wanted to keep it simple and grew frustrated with the many people who, as he wrote back then, "want to turn Minix into BSD UNIX." + +So Torvalds started writing his own tiny operating system for this 386. It wasn't going to be anything special. It wasn't going to topple AT&T or the burgeoning Microsoft. It was just going to be a fun experiment in writing a computer operating system that was all his. He wrote in January 1992," Many things should have been done more portably if it would have been a real project. I'm not making overly many excuses about it though: it was a design decision, and last April when I started the thing, I didn't think anybody would actually want to use it." + +Still, Torvalds had high ambitions. He was writing a toy, but he wanted it to have many, if not all, of the features found in full-strength UNIX versions on the market. On July 3, he started wondering how to accomplish this and placed a posting on the USENET newsgroup comp.os.minix, writing: + +_1 Hello netlanders, Due to a project I'm working on (in minix), I'm interested in the posix standard definition. Could somebody please point me to a (preferably) machine-readable format of the latest posix rules? Ftp-sites would be nice. + +Torvalds's question was pretty simple. When he wrote the message in 1991, UNIX was one of the major operating systems in the world. The project that started at AT&T and Berkeley was shipping on computers from IBM, Sun, Apple, and most manufacturers of higher-powered machines known as workstations. Wall Street banks and scientists loved the more powerful machines, and they loved the simplicity and hackability of UNIX machines. In an attempt to unify the marketplace, computer manufacturers created a way to standardize UNIX and called it POSIX. POSIX ensured that each UNIX machine would behave in a standardized way. + +Torvalds worked quickly. By September he was posting notes to the group with the subject line "What would you like to see most in Minix?" He was adding features to his clone, and he wanted to take a poll about where he should add next. + +Torvalds already had some good news to report. "I've currently ported bash(1.08) and GCC(1.40), and things seem to work. This implies that I'll get something practical within a few months," he said. + +At first glance, he was making astounding progress. He created a working system with a compiler in less than half a year. But he also had the advantage of borrowing from the GNU project. Stallman's GNU project group had already written a compiler (GCC) and a nice text user interface (bash). Torvalds just grabbed these because he could. He was standing on the shoulders of the giants who had come before him. + +The core of an OS is often called the "kernel," which is one of the strange words floating around the world of computers. When people are being proper, they note that Linus Torvalds was creating the Linux kernel in 1991. Most of the other software, like the desktop, the utilities, the editors, the web browsers, the games, the compilers, and practically everything else, was written by other folks. If you measure this in disk space, more than 95 percent of the code in an average distribution lies outside the kernel. If you measure it by user interaction, most people using Linux or BSD don't even know that there's a kernel in there. The buttons they click, the websites they visit, and the printing they do are all controlled by other programs that do the work. + +Of course, measuring the importance of the kernel this way is stupid. The kernel is sort of the combination of the mail room, boiler room, kitchen, and laundry room for a computer. It's responsible for keeping the data flowing between the hard drives, the memory, the printers, the video screen, and any other part that happens to be attached to the computer. + +In many respects, a well-written kernel is like a fine hotel. The guests check in, they're given a room, and then they can order whatever they need from room service and a smoothly oiled concierge staff. Is this new job going to take an extra 10 megabytes of disk space? No problem, sir. Right away, sir. We'll be right up with it. Ideally, the software won't even know that other software is running in a separate room. If that other program is a loud rock-and-roll MP3 playing tool, the other software won't realize that when it crashes and burns up its own room. The hotel just cruises right along, taking care of business. + +In 1991, Torvalds had a short list of features he wanted to add to the kernel. The Internet was still a small network linking universities and some advanced labs, and so networking was a small concern. He was only aiming at the 386, so he could rely on some of the special features that weren't available on other chips. High-end graphics hardware cards were still pretty expensive, so he concentrated on a text-only interface. He would later fix all of these problems with the help of the people on the Linux kernel mailing list, but for now he could avoid them. + +Still, hacking the kernel means anticipating what other programmers might do to ruin things. You don't know if someone's going to try to snag all 128 megabytes of RAM available. You don't know if someone's going to hook up a strange old daisy-wheel printer and try to dump a PostScript file down its throat. You don't know if someone's going to create an endless loop that's going to write random numbers all over the memory. Stupid programmers and dumb users do these things every day, and you've got to be ready for it. The kernel of the OS has to keep things flowing smoothly between all the different parts of the system. If one goes bad because of a sloppy bit of code, the kernel needs to cut it off like a limb that's getting gangrene. If one job starts heating up, the kernel needs to try to give it all the resources it can so the user will be happy. The kernel hacker needs to keep all of these things straight. + +Creating an operating system like this is no easy job. Many of the commercial systems crash frequently for no perceptible reason, and most of the public just takes it.~{ Microsoft now acknowledges the existence of a bug in the tens of millions of copies of Windows 95 and Windows 98 that will cause your computer to 'stop responding (hang)'--you know, what you call crash--after exactly 49 days, 17 hours, 2 minutes, and 47.296 seconds of continuous operation . . . . Why 49.7? days? Because computers aren't counting the days. They're counting the milliseconds. One counter begins when Windows starts up; when it gets to 232 milliseconds--which happens to be 49.7 days--well, that's the biggest number this counter can handle. And instead of gracefully rolling over and starting again at zero, it manages to bring the entire operating system to a halt."--James Gleick in the New York Times. }~ Many people somehow assume that it must be their fault that the program failed. In reality, it's probably the kernel's. Or more precisely, it's the kernel designer's fault for not anticipating what could go wrong. + +By the mid-1970s, companies and computer scientists were already experimenting with many different ways to create workable operating systems. While the computers of the day weren't very powerful by modern standards, the programmers created operating systems that let tens if not hundreds of people use a machine simultaneously. The OS would keep the different tasks straight and make sure that no user could interfere with another. + +As people designed more and more operating systems, they quickly realized that there was one tough question: how big should it be? Some people argued that the OS should be as big as possible and come complete with all the features that someone might want to use. Others countered with stripped-down designs that came with a small core of the OS surrounded by thousands of little programs that did the same thing. + +To some extent, the debate is more about semantics than reality. A user wants the computer to be able to list the different files stored in one directory. It doesn't matter if the question is answered by a big operating system that handles everything or a little operating system that uses a program to find the answer. The job still needs to be done, and many of the instructions are the same. It's just a question of whether the instructions are labeled the "operating system" or an ancillary program. + +But the debate is also one about design. Programmers, teachers, and the Lego company all love to believe that any problem can be solved by breaking it down into small parts that can be assembled to create the whole. Every programmer wants to turn the design of an operating system into thousands of little problems that can be solved individually. This dream usually lasts until someone begins to assemble the parts and discovers that they don't work together as perfectly as they should. + +When Torvalds started crafting the Linux kernel, he decided he was going to create a bigger, more integrated version that he called a "monolithic kernel." This was something of a bold move because the academic community was entranced with what they called "microkernels." The difference is partly semantic and partly real, but it can be summarized by analogy with businesses. Some companies try to build large, smoothly integr the steps of production. Others try to create smaller operations that subcontract much of the production work to other companies. One is big, monolithic, and all-encompassing, while the other is smaller, fragmented, and heterogeneous. It's not uncommon to find two companies in the same industry taking different approaches and thinking they're doing the right thing. + +The design of an operating system often boils down to the same decision. Do we want to build a monolithic core that handles all the juggling internally, or do we want a smaller, more fragmented model that should be more flexible as long as the parts interact correctly? + +In time, the OS world started referring to this core as the kernel of the operating system. People who wanted to create big OSs with many features wrote monolithic kernels. Their ideological enemies who wanted to break the OS into hundreds of small programs running on a small core wrote microkernels. Some of the most extreme folks labeled their work a nanokernel because they thought it did even less and thus was even more pure than those bloated microkernels. + +The word "kernel" is a bit confusing for most people because they often use it to mean a fragment of an object or a small fraction. An extreme argument may have a kernel of truth to it. A disaster movie always gives the characters and the audience a kernel of hope to which to cling. + +Mathematicians use the word a bit differently and emphasize the word's ability to let a small part define a larger concept. Technically, a kernel of a function f is the set of values, x1, x2, . . . xn such that f(xi)=1, or whatever the identity element happens to be. The action of the kernel of a function does a good job of defining how the function behaves with all the other elements. The algebraists study a kernel of a function because it reveals the overall behavior.~{ The kernel of f(x)=x2 is (-1, 1) and it illustrates how the function has two branches. }~ + +The OS designers use the word in the same way. If they define the kernel correctly, then the behavior of the rest of the OS will follow. The small part of the code defines the behavior of the entire computer. If the kernel does one thing well, the entire computer will do it well. If it does one thing badly, then everything will suffer. + +Many computer users often notice this effect without realizing why it ated operations where one company controls all exists. Most Macintosh computers, for instance, can be sluggish at times because the OS does not do a good job juggling the workload between processes. The kernel of the OS has not been completely overhauled since the early days when the machines ran one program at a time. This sluggishness will persist for a bit longer until Macintosh releases a new version known as MacOS X. This will be based on the Mach kernel, a version developed at Carnegie-Mellon University and released as open source software. Steve Jobs adopted it when he went to NeXT, a company that was eventually folded back into Apple. This kernel does a much better job of juggling different tasks because it uses preemptive multitasking instead of cooperative multitasking. The original version of the MacOS let each program decide when and if it was going to give up control of the computer to let other programs run. This low-rent version of juggling was called cooperative multitasking, but it failed when some program in the hotel failed to cooperate. Most software developers obeyed the rules, but mistakes would still occur. Bad programs would lock up the machine. Preemptive multitasking takes this power away from the individual programs. It swaps control from program to program without asking permission. One pig of a program can't slow down the entire machine. When the new MacOS X kernel starts offering preemptive multitasking, the users should notice less sluggish behavior and more consistent performance. + +Torvalds plunged in and created a monolithic kernel. This made it easier to tweak all the strange interactions between the programs. Sure, a microkernel built around a clean, message-passing architecture was an elegant way to construct the guts of an OS, but it had its problems. There was no easy way to deal with special exceptions. Let's say you want a web server to run very quickly on your machine. That means you need to treat messages coming into the computer from the Internet with exceptional speed. You need to ship them with the equivalent of special delivery or FedEx. You need to create a special exception for them. Tacking these exceptions onto a clean microkernel starts to make it look bad. The design starts to get cluttered and less elegant. After a few special exceptions are added, the microkernel can start to get confused. + +Torvalds's monolithic kernel did not have the elegance or the simplicity of a microkernel OS like Minix or Mach, but it was easier to hack. New tweaks to speed up certain features were relatively easy to add. There was no need to come up with an entirely new architecture for the message-passing system. The downside was that the guts could grow remarkably byzantine, like the bureaucracy of a big company. + +In the past, this complexity hurt the success of proprietary operating systems. The complexity produced bugs because no one could understand it. Torvalds's system, however, came with all the source code, making it much easier for application programmers to find out what was causing their glitch. To carry the corporate bureaucracy metaphor a bit further, the source code acted like the omniscient secretary who is able to explain everything to a harried executive. This perfect knowledge reduced the cost of complexity. + +By the beginning of 1992, Linux was no longer a Finnish student's part-time hobby. Several influential programmers became interested in the code. It was free and relatively usable. It ran much of the GNU code, and that made it a neat, inexpensive way to experiment with some excellent tools. More and more people downloaded the system, and a significant fraction started reporting bugs and suggestions to Torvalds. He rolled them back in and the project snowballed. + +2~ A Hobby Begets a Project that Begets a Movement + +On the face of it, Torvalds's decision to create an OS wasn't extraordinary. Millions of college-age students decide that they can do anything if they just put in a bit more elbow grease. The college theater departments, newspapers, and humor magazines all started with this impulse, and the notion isn't limited to college students. Millions of adults run Little League teams, build model railroads, lobby the local government to create parks, and take on thousands of projects big and small in their spare time. + +Every great idea has a leader who can produce a system to sustain it. Every small-town lot had kids playing baseball, but a few guys organized a Little League program that standardized the rules and the competition. Every small town had people campaigning for parks, but one small group created the Sierra Club, which fights for parks throughout the world. + +This talent for organizing the work of others is a rare commodity, and Torvalds had a knack for it. He was gracious about sharing his system with the world and he never lorded it over anyone. His messages were filled with jokes and self-deprecating humor, most of which were carefully marked with smiley faces (:-)) to make sure that the message was clear. If he wrote something pointed, he would apologize for being a "hothead." He was always gracious in giving credit to others and noted that much of Linux was just a clone of UNIX. All of this made him easy to read and thus influential. + +His greatest trick, though, was his decision to avoid the mantle of power. He wrote in 1992, "Here's my standing on 'keeping control,' in 2 words (three?): I won't. The only control I've effectively been keeping on Linux is that I know it better than anybody else." + +He pointed out that his control was only an illusion that was caused by the fact that he did a good job maintaining the system. "I've made my changes available to ftp-sites etc. Those have become effectively official releases, and I don't expect this to change for some time: not because I feel I have some moral right to it, but because I haven't heard too many complaints." + +As he added new features to his OS, he shipped new copies frequently. The Internet made this easy to do. He would just pop a new version up on a server and post a notice for all to read: come download the latest version. + +He made it clear that people could vote to depose him at any time. +"If people feel I do a bad job, they can do it themselves." They could just take all of his Linux code and start their own version using Torvalds's work as a foundation. + +Anyone could break off from Torvalds's project because Torvalds decided to ship the source code to his project under Richard Stallman's GNU General Public License, or GPL. In the beginning, he issued it with a more restrictive license that prohibited any "commercial" use, but eventually moved to the GNU license. This was a crucial decision because it cemented a promise with anyone who spent a few minutes playing with his toy operating system for the 386. It stated that all of the source code that Torvalds or anyone else wrote would be freely accessible and shared with everyone. This decision was a double-edged sword for the community. Everyone could take the software for free, + +but if they started circulating some new software built with the code, they would have to donate their changes back to the project. It was like flypaper. Anyone who started working with the project grew attached to it. They couldn't run off into their own corner. Some programmers joke that this flypaper license is like sex. If you make one mistake by hooking up with a project protected by GPL, you pay for it forever. If you ever ship a version of the project, you must include all of the source code. It can be distributed freely forever. + +While some people complained about the sticky nature of the GPL, enough saw it as a virtue. They liked Torvalds's source code, and they liked the fact that the GPL made them full partners in the project. Anyone could donate their time and be sure it wasn't going to disappear. The source code became a body of work held in common trust for everyone. No one could rope it off, fence it in, or take control. + +In time, Torvalds's pet science project and hacking hobby grew as more people got interested in playing with the guts of machines. The price was right, and idle curiosity could be powerful. Some wondered what a guy in Finland could do with a 386 machine. Others wondered if it was really as usable as the big machines from commercial companies. Others wondered if it was powerful enough to solve some problems in the lab. Still others just wanted to tinker. All of these folks gave it a try, and some even began to contribute to the project. + +Torvalds's burgeoning kernel dovetailed nicely with the tools that the GNU project created. All of the work by Stallman and his disciples could be easily ported to work with the operating system core that Torvalds was now calling Linux. This was the power of freely distributable source code. Anyone could make a connection, and someone invariably did. Soon, much of the GNU code began running on Linux. These tools made it easier to create more new programs, and the snowball began to roll. + +Many people feel that Linus Torvalds's true act of genius was in coming up with a flexible and responsive system for letting his toy OS grow and change. He released new versions often, and he encouraged everyone to test them with him. In the past, many open source developers using the GNU GPL had only shipped new versions at major landmarks in development, acting a bit like the commercial developers. After they released version 1.0, they would hole up in their basements until they had added enough new features to justify version 2.0. + +Torvalds avoided this perfectionism and shared frequently. If he fixed a bug on Monday, then he would roll out a new version that afternoon. It's not strange to have two or three new versions hit the Internet each week. This was a bit more work for Torvalds, but it also made it much easier for others to become involved. They could watch what he was doing and make their own suggestions. + +This freedom also attracted others to the party. They knew that Linux would always be theirs, too. They could write neat features and plug them into the Linux kernel without worrying that Torvalds would yank the rug out from under them. The GPL was a contract that lasted long into the future. It was a promise that bound them together. + +The Linux kernel also succeeded because it was written from the ground up for the PC platform. When the Berkeley UNIX hackers were porting BSD to the PC platform, they weren't able to make it fit perfectly. They were taking a piece of software crafted for older computers like the VAX, and shaving off corners and rewriting sections until it ran on the PC. + +Alan Cox pointed out to me, "The early BSD stuff was by UNIX people for UNIX people. You needed a calculator and familiarity with BSD UNIX on big machines (or a lot of reading) to install it. You also couldn't share a disk between DOS/Windows and 386BSD or the early branches off it. + +"Nowadays FreeBSD understands DOS partitions and can share a disk, but at the time BSD was scary to install," he continued. + +The BSD also took certain pieces of hardware for granted. Early versions of BSD required a 387, a numerical coprocessor that would speed up the execution of floating point numbers. Cox remembers that the price (about $100) was just too much for his budget. At that time, the free software world was a very lean organization. + +Torvalds's operating system plugged a crucial hole in the world of free source software and made it possible for someone to run a computer without paying anyone for a license. Richard Stallman had dreamed of this day, and Torvalds came up with the last major piece of the puzzle. + +2~ A Different Kind of Trial + +During the early months of Torvalds's work, the BSD group was stuck in a legal swamp. While the BSD team was involved with secret settlement talks and secret depositions, Linus Torvalds was happily writing code and sharing it with the world on the Net. His life wasn't all peaches and cream, but all of his hassles were open. Professor Andy Tanenbaum, a fairly well-respected and famous computer scientist, got in a long, extended debate with Torvalds over the structure of Linux. He looked down at Linux and claimed that Linux would have been worth two F's in his class because of its design. This led to a big flame war that was every bit as nasty as the fight between Berkeley and AT&T's USL. In fact, to the average observer it was even nastier. Torvalds returned Tanenbaum's fire with strong words like "fiasco," "brain-damages," and "suck." He brushed off the bad grades by pointing out that Albert Einstein supposedly got bad grades in math and physics. The highpriced lawyers working for AT&T and Berkeley probably used very expensive and polite words to try and hide the shivs they were trying to stick in each other's back. Torvalds and Tanenbaum pulled out each other's virtual hair like a squawkfest on the Jerry Springer show. + +But Torvalds's flame war with Tanenbaum occurred in the open in an Internet newsgroup. Other folks could read it, think about it, add their two cents' worth, and even take sides. It was a wide-open debate that uncovered many flaws in the original versions of Linux and Tanenbaum's Minix. They forced Torvalds to think deeply about what he wanted to do with Linux and consider its flaws. He had to listen to the arguments of a critic and a number of his peers on the Net and then come up with arguments as to why his Linux kernel didn't suck too badly. + +This open fight had a very different effect from the one going on in the legal system. Developers and UNIX hackers avoided the various free versions of BSD because of the legal cloud. If a judge decided that AT&T and USL were right, everyone would have to abandon their work on the platform. While the CSRG worked hard to get free, judges don't always make the choices we want. + +The fight between Torvalds and Tanenbaum, however, drew people into the project. Other programmers like David Miller, Ted T'so, and Peter da Silva chimed in with their opinions. At the time, they were just interested bystanders. In time, they became part of the Linux brain trust. Soon they were contributing source code that ran on Linux. The argument's excitement forced them to look at Torvalds's toy OS and try to decide whether his defense made any sense. Today, David Miller is one of the biggest contributors to the Linux kernel. Many of the original debaters became major contributors to the foundations of Linux. + +This fight drew folks in and kept them involved. It showed that Torvalds was serious about the project and willing to think about its limitations. More important, it exposed these limitations and inspired other folks on the Net to step forward and try to fix them. Everyone could read the arguments and jump in. Even now, you can dig up the archives of this battle and read in excruciating detail what people were thinking and doing. The AT&T/USL-versus-Berkeley fight is still sealed. + +To this day, all of the devotees of the various BSDs grit their teeth when they hear about Linux. They think that FreeBSD, NetBSD, and OpenBSD are better, and they have good reasons for these beliefs. They know they were out the door first with a complete running system. But Linux is on the cover of the magazines. All of the great technically unwashed are now starting to use "Linux" as a synonym for free software. If AT&T never sued, the BSD teams would be the ones reaping the glory. They would be the ones to whom Microsoft turned when it needed a plausible competitor. They would be more famous. + +But that's crying over spilled milk. The Berkeley CSRG lived a life of relative luxury in their world made fat with big corporate and government donations. They took the cash, and it was only a matter of time before someone called them on it. Yes, they won in the end, but it came too late. Torvalds was already out of the gate and attracting more disciples. + +McKusick says, "If you plot the installation base of Linux and BSD over the last five years, you'll see that they're both in exponential growth. But BSD's about eighteen to twenty months behind. That's about how long it took between Net Release 2 and the unencumbered 4.4BSD-Lite. That's about how long it took for the court system to do its job." + +1~ Growth + +Through the 1990s, the little toy operating system grew slowly and quietly as more and more programmers were drawn into the vortex. At the beginning, the OS wasn't rich with features. You could run several different programs at once, but you couldn't do much with the programs. The system's interface was just text. Still, this was often good enough for a few folks in labs around the world. Some just enjoyed playing with computers. Getting Linux running on their PC was a challenge, not unlike bolting an aftermarket supercharger onto a Honda Civic. But others took the project more seriously because they had serious jobs that couldn't be solved with a proprietary operating system that came from Microsoft or others. + +In time, more people started using the system and started contributing their additions to the pot. Someone figured out how to make MIT's free X Window System run on Linux so everyone could have a graphical interface. Someone else discovered how to roll in technology for interfacing with the Internet. That made a big difference because everyone could hack, tweak, and fiddle with the code and then just upload the new versions to the Net. + +It goes without saying that all the cool software coming out of Stallman's Free Software Foundation found its way to Linux. Some were simple toys like GNU Chess, but others were serious tools that were essential to the growth of the project. By 1991, the FSF was offering what might be argued were the best text editor and compiler in the world. Others might have been close, but Stallman's were free. These were crucial tools that made it possible for Linux to grow quickly from a tiny experimental kernel into a full-featured OS for doing everything a programmer might want to do. + +James Lewis-Moss, one of the many programmers who devote some time to Linux, says that GCC made it possible for programmers to create, revise, and extend the kernel. "GCC is integral to the success of Linux," he says, and points out that this may be one of the most important reasons why "it's polite to refer to it as GNU/Linux." + +Lewis-Moss points out one of the smoldering controversies in the world of free software: all of the tools and games that came from the GNU project started becoming part of what people simply thought of as plain "Linux." +The name for the small kernel of the operating system soon grew to apply to almost all the free software that ran with it. This angered Stallman, who first argued that a better name would be"Lignux."When that failed to take hold, he moved to "GNU/Linux." Some ignored his pleas and simply used "Linux," which is still a bit unfair. Some feel that"GNU/Linux"is too much of a mouthful and, for better or worse, just plain Linux is an appropriate shortcut. Some, like Lewis-Moss, hold firm to GNU/Linux. + +Soon some people were bundling together CD-ROMs with all this software in one batch. The group would try to work out as many glitches as possible so that the purchaser's life would be easier. All boasted strange names like Yggdrasil, Slackware, SuSE, Debian, or Red Hat. Many were just garage projects that never made much money, but that was okay. Making money wasn't really the point. People just wanted to play with the source. Plus, few thought that much money could be made. The GPL, for instance, made it difficult to differentiate the product because it required everyone to share their source code with the world. If Slackware came up with a neat fix that made their version of Linux better, then Debian and SuSE could grab it. The GPL prevented anyone from constraining the growth of Linux. + +But only greedy businessmen see sharing and competition as negatives. In practice, the free flow of information enhanced the market for Linux by ensuring that it was stable and freely available. If one key CDROM developer gets a new girlfriend and stops spending enough time programming, another distribution will pick up the slack. If a hurricane flattened Raleigh, North Carolina, the home of Red Hat, then another supplier would still be around. A proprietary OS like Windows is like a set of manacles. An earthquake in Redmond, Washington, could cause a serious disruption for everyone. + +The competition and the GPL meant that the users would never feel bound to one OS. If problems arose, anyone could always just start a splinter group and take Linux in that direction. And they did. All the major systems began as splinter groups, and some picked up enough steam and energy to dominate. In time, the best splinter groups spun off their own splinter groups and the process grew terribly complicated. + +2~ The Establishment Begins to Notice + +By the mid-1990s, the operating system had already developed quite a following. In 1994, Jon Hall was a programmer for Digital, a company that was later bought by Compaq. Hall also wears a full beard and uses the name "maddog" as a nickname. At that time, Digital made workstations that ran a version of UNIX. In the early 1990s, Digital made a big leap forward by creating a 64-bit processor version of its workstation CPU chip, the Alpha, and the company wanted to make sure that the chip found widespread acceptance. + +Hall remembers well the moment he discovered Linux. He told Linux Today, + +_1 I didn't even know I was involved with Linux at first. I got a copy of Dr. Dobb's Journal, and in there was an advertisement for "get a UNIX operating system, all the source code, and run it on your PC." And I think it was $99. And I go, "Oh, wow, that's pretty cool. For $99, I can do that." So I sent away for it, got the CD. The only trouble was that I didn't have a PC to run it on. So I put it on my Ultrix system, took a look at the main pages, directory structure and stuff, and said, "Hey, that looks pretty cool." Then I put it away in the filing cabinet. That was probably around January of 1994. + +In May 1994, Hall met Torvalds at a DECUS (Digital Equipment Corporation User Society) meeting and became a big fan. Hall is a programmer's programmer who has written code for many different machines over the years, like the IBM 1130 and the DEC PDP-8. He started out as an electrical engineer in college, but took up writing software "after seeing a friend of mine fried by 13,600 volts and 400 amps, which was not a pretty sight." Hall started playing with UNIX when he worked at Bell Labs and fell in love with the OS. + +At the meeting, Torvalds helped Hall and his boss set up a PC with Linux. This was the first time that Hall actually saw Linux run, and he was pleasantly surprised. He said, "By that time I had been using UNIX for probably about fifteen years. I had used System V, I had used Berkeley, and all sorts of stuff, and this really felt like UNIX. You know . . . I mean, it's kind of like playing the piano. You can play the piano, even if it's a crappy piano. But when it's a really good piano, your fingers just fly over the keys. That's the way this felt. It felt good, and I was really impressed." + +This experience turned Hall into a true convert and he went back to Digital convinced that the Linux project was more than just some kids playing with a toy OS. These so-called amateurs with no centralized system or corporate backing had produced a very, very impressive system that was almost as good as the big commercial systems. Hall was an instant devotee. Many involved in the project recall their day of conversion with the same strength. A bolt of lightning peeled the haze away from their eyes, and they saw. + +Hall set out trying to get Torvalds to rewrite Linux so it would work well on the Alpha. This was not a simple task, but it was one that helped the operating system grow a bit more. The original version included some software that assumed the computer was designed like the Intel 386. This was fine when Linux only ran on Intel machines, but removing these assumptions made it possible for the software to run well on all types of machines. + +Hall went sailing with Torvalds to talk about the guts of the Linux OS. Hall told me, "I took him out on the Mississippi River, went up and down the Mississippi in the river boat, drinking Hurricanes, and I said to him, 'Linus, did you ever think about porting Linux to a 64-bit processor, like the Alpha?' He said, 'Well, I thought about doing that, but the Helsinki office has been having problems getting me a system, so I guess I'll have to do the PowerPC instead.' + +"I knew that was the wrong answer, so I came back to Digital (at the time), and got a friend of mine, named Bill Jackson, to send out a system to Linus, and he received it about a couple weeks after that. Then I found some people inside Digital who were also thinking about porting Linux to an Alpha. I got the two groups together, and after that, we started on the Alpha Linux project." + +This was one of the first times that a major corporation started taking note of what was happening in the garages and basements of hardcore computer programmers. It was also one of the first times that a corporation looked at an open source operating system and did not react with fear or shock. Sun was always a big contributor of open source software, but they kept their OS proprietary. Hall worked tirelessly at Digital to ensure that the corporation understood the implications of the GPL and saw that it was a good way to get more interested in the Alpha chip. He says he taught upper management at Digital how to "say the L-word." + +Hall also helped start a group called Linux International, which works to make the corporate world safe for Linux. "We help vendors understand the Linux marketplace," Hall told me. "There's a lot of confusion about what the GPL means. Less now, but still there's a lot of confusion. We helped them find the markets." + +Today, Linux International helps control the trademark on the name Linux and ensures that it is used in an open way. "When someone wanted to call themselves something like 'Linux University,' we said that's bad because there's going to be more than one. 'Linux University of North Carolina' is okay. It opens up the space." + +In the beginning, Torvalds depended heavily on the kindness of strangers like Hall. He didn't have much money, and the Linux project wasn't generating a huge salary for him. Of course, poverty also made it easier for people like Hall to justify giving him a machine. Torvalds wasn't rich monetarily, but he became rich in machines. + +By 1994, when Hall met Torvalds, Linux was already far from just a one-man science project. The floppy disks and CD-ROMs holding a version of the OS were already on the market, and this distribution mechanism was one of the crucial unifying forces. Someone could just plunk down a few dollars and get a version that was more or less ready to run. Many simply downloaded their versions for free from the Internet. + +2~ Making it Easy to Use + +In 1994, getting Linux to run was never really as simple as putting the CD-ROM in the drive and pressing a button. Many of the programs didn't work with certain video cards. Some modems didn't talk to Linux. Not all of the printers communicated correctly. Yet most of the software worked together on many standard machines. It often took a bit of tweaking, but most people could get the OS up and running on their computers. + +This was a major advance for the Linux OS because most people could quickly install a new version without spending too much time downloading the new code or debugging it. Even programmers who understood exactly what was happening felt that installing a new version was a long, often painful slog through technical details. These CDROMs not only helped programmers, they also encouraged casual users to experiment with the system. + +The CD-ROM marketplace also created a new kind of volunteer for the project. Someone had to download the latest code from the author. Someone had to watch the kernel mailing list to see when Torvalds, Cox, and the rest had minted a new version that was stable enough to release. Someone needed to check all the other packages like GNU Emacs or GNU CC to make sure they still worked correctly. This didn't require the obsessive programming talent that created the kernel, but it did take some dedication and devotion. + +Today, there are many different kinds of volunteers putting together these packages. The Debian group, for instance, is one of the best known and most devoted to true open source principles. It was started by Ian Murdock, who named it after himself and his girlfriend, Debra. The Debian group, which now includes hundreds of official members, checks to make sure that the software is both technically sound and politically correct. That is, they check the licenses to make sure that the software can be freely distributed by all users. Their guidelines later morphed into the official definition of open source software. + +Other CD-ROM groups became more commercial. Debian sold its disks to pay for Internet connection fees and other expenses, but they were largely a garage operation. So were groups with names like Slackware, FreeBSD, and OpenBSD. Other groups like Red Hat actually set out to create a burgeoning business, and to a large extent, they succeeded. They took the money and used it to pay programmers who wrote more software to make Linux easier to use. + +In the beginning, there wasn't much difference between the commercially minded groups like Red Hat and the more idealistic collectives like Debian. The marketplace was small, fragmented, and tribal. But by 1998, Red Hat had attracted major funding from companies like Intel, and it plowed more and more money into making the package as presentable and easy to use as possible. This investment paid off because more users turned instinctively to Red Hat, whose CD-ROM sales then exploded. + +Most of this development lived in its own Shangri-La. Red Hat, for instance, charged money for its disks, but released all of its software under the GPL. Others could copy their disks for free, and many did. Red Hat may be a company, but the management realized that they depended on thousands if not millions of unpaid volunteers to create their product. + +Slowly but surely, more and more people became aware of Linux, the GNU project, and its cousins like FreeBSD. No one was making much money off the stuff, but the word of mouth was spreading very quickly. The disks were priced reasonably, and people were curious. The GPL encouraged people to share. People began borrowing disks from their friends. Some companies even manufactured cheap rip-off copies of the CD-ROMs, an act that the GPL encouraged. + +At the top of the pyramid was Linus Torvalds. Many Linux developers treated him like the king of all he surveyed, but he was like the monarchs who were denuded by a popular constitutional democracy. He had always focused on building a fast, stable kernel, and that was what he continued to do. The rest of the excitement, the packaging, the features, and the toys, were the dominion of the volunteers and contributors. + +Torvalds never said much about the world outside his kernel, and it developed without him. + +Torvalds moved to Silicon Valley and took a job with the very secret company Transmeta in order to help design the next generation of computer chips. He worked out a special deal with the company that allowed him to work on Linux in his spare time. He felt that working for one of the companies like Red Hat would give that one version of Linux a special imprimatur, and he wanted to avoid that. Plus, Transmeta was doing cool things. + +In January 1999, the world caught up with the pioneers. Schmalensee mentioned Linux on the witness stand during the trial and served official notice to the world that Microsoft was worried about the growth of Linux. The system had been on the company's radar screen for some time. In October 1998, an internal memo from Microsoft describing the threat made its way to the press. Some thought it was just Microsoft's way of currying favor during the antitrust investigation. Others thought it was a serious treatment of a topic that was difficult for the company to understand. + +The media followed Schmalensee's lead. Everyone wanted to know about Linux, GNU, open source software, and the magical effects of widespread, unconditional sharing. The questions came in tidal waves, and Torvalds tried to answer them again and again. Was he sorry he gave it all away? No. If he charged anything, no one would have bought his toy and no one would have contributed anything. Was he a communist? No, he was rather apolitical. Don't programmers have to eat? Yes, but they will make their money selling a service instead of getting rich off bad proprietary code. Was Linux going to overtake Microsoft? Yes, if he had his way. World Domination Soon became the motto. + +But there were also difficult questions. How would the Linux world resist the embrace of big companies like IBM, Apple, Hewlett-Packard, and maybe even Microsoft? These were massive companies with paid programmers and schedules to meet. All the open source software was just as free to them as anyone else. Would these companies use their strength to monopolize Linux? + +Some were worried that the money would tear apart the open source community. It's easy to get everyone to donate their time to a project when no one is getting paid. Money changes the equation. Would a gulf develop between the rich companies like Red Hat and the poor programmers who just gave away their hard work? + +Many wanted to know when Linux would become easier to use for nonprogrammers. Programmers built the OS to be easy to take apart and put back together again. That's a great feature if you like hacking the inside of a kernel, but that doesn't excite the average computer user. How was the open source community going to get the programmers to donate their time to fix the mundane, everyday glitches that confused and infuriated the nonprogrammers? Was the Linux community going to be able to produce something that a nonprogrammer could even understand? + +Others wondered if the Linux world could ever agree enough to create a software package with some coherence. Today, Microsoft users and programmers pull their hair out trying to keep Windows 95, Windows 98, and Windows NT straight. Little idiosyncrasies cause games to crash and programs to fail. Microsoft has hundreds of quality assurance engineers and thousands of support personnel. Still, the little details drive everyone crazy. + +New versions of Linux appear as often as daily. People often create their own versions to solve particular problems. Many of these changes won't affect anyone, but they can add up. Is there enough consistency to make the tools easy enough to use? + +Many wondered if Linux was right for world domination. Programmers might love playing with source code, but the rest of the world just wants something that delivers the e-mail on time. More important, the latter are willing to pay for this efficiency. + +Such questions have been bothering the open source community for years and still have no easy answers today. Programmers need food, and food requires money. Making easy-to-use software requires discipline, and discipline doesn't always agree with total freedom. + +When the first wave of hype about free software swept across the zeitgeist, no one wanted to concentrate on these difficult questions. The high quality of free operating systems and their use at high-profile sites like Yahoo! was good news for the world. The success of unconditional cooperation was intoxicating. If free software could do so much with so little, it could overcome the difficult questions. Besides, it didn't have to be perfect. It just needed to be better than Microsoft. + +1~ Freedom + +The notion embodied by the word "free" is one of the great marketing devices of all time. Cereal manufacturers know that kids will slog through bowls of sugar to get a free prize. Stores know that people will gladly give them their names and addresses if they stand a chance of winning something for free. Car ads love to emphasize the freedom a new car will give to someone. + +Of course, Microsoft knows this fact as well. One of their big advertising campaigns stresses the freedom to create new documents, write long novels, fiddle with photographs, and just do whatever you want with a computer. "Where do you want to go today?" the Microsoft ads ask. + +Microsoft also recognizes the pure power of giving away something for free. When Bill Gates saw Netscape's browser emerging as a great competitive threat, he first bought a competing version and then wrote his own version of a web browser. Microsoft gave their versions away for free. This bold move shut down the revenue stream of Netscape, which had to cut its price to zero in order to compete. Of course, Netscape didn't have revenues from an operating system to pay the rent. Netscape cried foul and eventually the Department of Justice brought a lawsuit to decide whether the free software from Microsoft was just a plot to keep more people paying big bucks for their not-so-free Windows OS. The fact that Microsoft is now threatened by a group of people who are giving away a free OS has plenty of irony. + +The word "free" has a much more complicated and nuanced meaning within the free software movement. In fact, many people who give away their software don't even like the word "free" and prefer to use "open" to describe the process of sharing. In the case of free software, it's not just an ad campaign to make people feel good about buying a product. It's also not a slick marketing sleight of hand to focus people's attention on a free gift while the magician charges full price for a product. The word "free" is more about a way of life. The folks who write the code throw around the word in much the same way the Founding Fathers of the United States used it. To many of them, the free software revolution was also conceived in liberty and dedicated to certain principles like the fact that all men and women have certain inalienable rights to change, modify, and do whatever they please with their software in the pursuit of happiness. + +Tossing about the word "free" is easy to do. Defining what it means takes much longer. The Declaration of Independence was written in 1776, but the colonial governments fought and struggled with creating a free government through the ratification of the current United States Constitution in 1787. The Bill of Rights came soon afterward, and the Supreme Court is still continually struggling with defining the boundaries of freedom described by the document. Much of the political history of the United States might be said to be an extended argument about the meaning of the words "free country." + +The free software movement is no different. It's easy for one person to simply give their software away for free. It's much harder to attract and organize an army to take on Microsoft and dominate the world. That requires a proper definition of the word "free" so that everyone understands the rights and limitations behind the word. Everyone needs to be on the same page if the battle is to be won. Everyone needs to understand what is meant by "free software." + +The history of the free software world is also filled with long, extended arguments defining the freedom that comes bundled with the source code. Many wonder if it is more about giving the user something for nothing, or if is it about empowering him. Does this freedom come with any responsibilities? What should they be? How is the freedom enforced? Is freeloading a proper part of the freedom? + +In the early years of computers, there were no real arguments. Software was free because people just shared it with each other. Magazines like Creative Computing and BYTE published the source code to programs because that was an easy way to share information. + +People would even type in the data themselves. Computers cost money, and getting them to run was part of the challenge. Sharing software was just part of being neighborly. If someone needed to borrow your plow, you lent it to them when you weren't using it. + +This changed as corporations recognized that they could copyright software and start charging money for it. Most people loved this arrangement because the competition brought new packages and tools to market and people were more than willing to pay for them. How else are the programmers and the manual writers going to eat? + +A few people thought this was a disaster. Richard Stallman watched the world change from his office in the artificial intelligence labs of MIT. Stallman is the ultimate hacker, if you use the word in the classical sense. In the beginning, the word only described someone who knows how to program well and loves to poke around in the insides of computers. It only took on its more malicious tone later as the media managed to group all of those with the ability to wrangle computers into the same dangerous camp. Hackers often use the term "cracker" to refer to these people. + +Stallman is a model of the hacker. He is strident, super intelligent, highly logical, and completely honest. Most corporations keep their hackers shut off in a back room because these traits seem to scare away customers and investors who just want sweet little lies in their ears. Stallman was never that kind of guy. He looked at the burgeoning corporate control of software and didn't like it one bit. His freedom was slowly being whittled away, and he wasn't the type to simply sit by and not say anything. + +When Stallman left the AI lab in 1984, he didn't want to be controlled by its policies. Universities started adopting many of the same practices as the corporations in the 1980s, and Stallman couldn't be a special exception. If MIT was going to be paying him a salary, MIT would own his code and any patents that came from it. Even MIT, which is a much cooler place than most, couldn't accommodate him on staff. He didn't move far, however, because after he set up the Free Software Foundation, he kept an office at MIT, first unofficially and then officially. Once he wasn't "on the staff," the rules became different. + +Stallman turned to consulting for money, but it was consulting with a twist. He would only work for companies that wouldn't put any restrictions on the software he created. This wasn't an easy sell. He was insisting that any work he did for Corporation X could also be shared with Corporations Y and Z, even if they were direct competitors. + +This wasn't how things were done in the 1980s. That was the decade when companies figured out how to lock up the source code to a program by only distributing a machine-readable version. They hoped this would control their product and let them restrain people who might try to steal their ideas and their intellectual property. Stallman thought it was shutting down his ability to poke around inside the computer and fix it. This secrecy blocked him from sharing his thoughts and ideas with other programmers. + +Most programmers looked at the scheme of charging for locked-up binary versions of a program as a necessary evil. Sure, they couldn't play around with the guts of Microsoft Windows, but it also meant that no one could play around with the guts of the programs they wrote. The scheme locked doors and compartmentalized the world, but it also gave the creator of programs more power. Most programmers thought having power over their own creation was pretty neat, even if others had more power. Being disarmed is okay if everyone else is disarmed and locked in a cage. + +Stallman thought this was a disaster for the world and set out to convince the world that he was right. In 1984, he wrote the GNU Manifesto, which started his GNU project and laid out the conditions for his revolution. This document stood out a bit in the middle of the era of Ronald Reagan because it laid out Stallman's plan for creating a virtual commune where people would be free to use the software. It is one of the first cases when someone tried to set down a definition of the word "free" for software users. Sure, software and ideas were quite free long ago, but no one noticed until the freedom was gone. + +He wrote, + +_1 I consider that the golden rule requires that if I like a program I must share it with other people who like it. Software sellers want to divide the users and conquer them, making each user agree not to share with others. I refuse to break solidarity with other users in this way. . . . So that I can continue to use computers without dishonor, I have decided to put together a sufficient body of free software so that I will be able to get along without any software that is not free. + +The document is a wonderful glimpse at the nascent free software world because it is as much a recruiting document as a tirade directed at corporate business practices. When the American colonies split off from England, Thomas Paine spelled out the problems with the English in the first paragraph of his pamphlet "Common Sense." In his manifesto, Stallman didn't get started using words like "dishonor" until the sixth paragraph. The first several paragraphs spelled out the cool tools he had developed already: "an Emacs text editor with Lisp for writing editor commands, a source level debugger, a yacc-compatible parser generator, a linker, and around 35 utilities." Then he pointed to the work he wanted to complete soon: "A new portable optimizing C compiler has compiled itself and may be released this year. An initial kernel exists but many more features are needed to emulate Unix." He was saying, in effect, that he already had a few juicy peaches growing on the trees of his commune. + +If this wasn't enough, he intended to do things a bit better than UNIX. His operating system was going to offer the latest, greatest ideas of computer science, circa 1984. "In particular, we plan to have longer file names, file version numbers, a crashproof file system, file name completion perhaps, terminal-independent display support, and perhaps eventually a Lisp-based window system through which several Lisp programs and ordinary Unix programs can share a screen." The only thing that was missing from every computer nerd's wish list was a secret submarine docking site in the basement grotto. + +The fifth paragraph even explained to everyone that the name of the project would be the acronym GNU, which stood for "GNU's Not UNIX," and it should be pronounced with a hard G to make sure that no one would get it confused with the word "new." Stallman has always cared about words, the way they're used and the way they're pronounced. + +In 1984, UNIX became the focus of Stallman's animus because its original developer, AT&T, was pushing to try to make some money back after paying so many people at Bell Labs to create it. Most people were somewhat conflicted by the fight. They understood that AT&T had paid good money and supported many researchers with the company's beneficence. The company gave money, time, and spare computers. Sure, it was a pain to pay AT&T for something and get only a long license drafted by teams of lawyers. Yes, it would be nice if we could poke around under the hood of UNIX without signing a non-disclosure agreement. It would be nice if we could be free to do whatever we want, but certainly someone who pays for something deserves the right to decide how it is used. We've all got to eat. + +Stallman wasn't confused at all. Licenses like AT&T's would constrict his freedom to share with others. To make matters worse, the software companies wanted him to pay for the privilege of getting software without the source code. + +Stallman explains that his feelings weren't focused on AT&T per se. Software companies were springing up all over the place, and most of them were locking up their source code with proprietary licenses. It was the 1980s thing to do, like listening to music by Duran Duran and Boy George. + +"When I decided to write a free operating system, I did not have AT&T in mind at all, because I had never had any dealings with them. I had never used a UNIX system. They were just one of many companies doing the same discreditable thing," he told me recently. "I chose a Unix-like design just because I thought it was a good design for the job, not because I had any particular feelings about AT&T." + +When he wrote the GNU Manifesto, he made it clear to the world that his project was more about choosing the right moral path than saving money. He wrote then that the GNU project means "much more than just saving everyone the price of a UNIX license. It means that much wasteful duplication of system programming effort will be avoided. This effort can go instead into advancing the state of the art." + +This was a crucial point that kept Stallman from being dismissed as a quasi-communist crank who just wanted everyone to live happily on some nerd commune. The source code is a valuable tool for everyone because it is readable by humans, or at least humans who happen to be good at programming. Companies learned to keep source code proprietary, and it became almost a reflex. If people wanted to use it, they should pay to help defray the cost of creating it. This made sense to programmers who wanted to make a living or even get rich writing their own code. But it was awfully frustrating at times. Many programmers have pulled their hair out in grief when their work was stopped by some bug or undocumented feature buried deep in the proprietary, super-secret software made by Microsoft, IBM, Apple, or whomever. If they had the source code, they would be able to poke around and figure out what was really happening. Instead, they had to treat the software like a black box and keep probing it with test programs that might reveal the secrets hidden inside. Every programmer has had an experience like this, and every programmer knew that they could solve the problem much faster if they could only read the source code. They didn't want to steal anything, they just wanted to know what was going on so they could make their own code work. + +Stallman's GNU project would be different, and he explained, +"Complete system sources will be available to everyone. As a result, a user who needs changes in the system will always be free to make them himself, or hire any available programmer or company to make them for him. Users will no longer be at the mercy of one programmer or company which owns the sources and is in sole position to make changes." + +He was quick to mention that people would be "free to hire any available programmer" to ensure that people understood he wasn't against taking money for writing software. That was okay and something he did frequently himself. He was against people controlling the source with arbitrarily complex legal barriers that made it impossible for him or anyone else to get something done. + +When people first heard of his ideas, they became fixated on the word "free." These were the Reagan years. Saying that people should just give away their hard work was sounding mighty communist to everyone, and this was long before the Berlin Wall fell. Stallman reexamined the word "free" and all of its different meanings. He carefully considered all of the different connotations, examined the alternatives, and decided that "free" was still the best word. He began to try to explain the shades of meaning he was after. His revolution was about "free speech," not "free beer." This wasn't going to be a revolution in the sense that frequent flyer miles revolutionized air travel nor in the way that aluminum cans revolutionized beer drinking. No, this was going to be a revolution as Rousseau, Locke, and Paine used the word. + +He later codified this into four main principles: + +_1 The freedom to run the program, for any purpose (freedom 0).~{ He numbered them starting at zero because that was what computer scientists did. Someone figured out that it was simpler to start numbering databases at zero because you didn't have to subtract 1 as often. }~ + +_1 The freedom to study how the program works, and adapt it to your needs (freedom 1). + +_1 The freedom to redistribute copies so you can help your neighbor (freedom 2). + +_1 The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3). + +2~ Free Beer + +While Stallman pushed people away from the notion of "free beer," +there's little question that this element turned out to be a very important part of the strategy and a foundation of its success. Stallman insisted that anyone could do what they wanted with the software, so he insisted that the source code must be freely distributed. That is, no one could put any restrictions on how you used the software. While this didn't make it free beer, it did mean that you could turn around and give a copy to your friends or your clients. It was pretty close. + +The "free beer" nature of Stallman's software also attracted users. If some programmers wanted to check out a new tool, they could download it and try it out without paying for it. They didn't need to ask their boss for a budget, and they didn't need to figure out a way to deal with an invoice. Just one click and the software was there. Commercial software companies continue to imitate this feature by distributing trial versions that come with either a few crippled features or a time lock that shuts them down after a few days. + +Of course, the "free beer" nature of the GNU project soon led to money problems. The GNU project took up his time and generated no real revenues at first. Stallman had always lived frugally. He says that he never made more than $20,000 a year at MIT, and still managed to save on that salary. But he was finding it harder and harder to get his assigned jobs done at MIT and write the cool GNU code. While Stallman always supported a programmer's right to make money for writing code, the GNU project wasn't generating any money. + +Most folks saw this conflict coming from the beginning. Sure, Stallman would be able to rant and rave about corporate software development for a bit, but eventually he and his disciples would need to eat. + +When the MIT support ended, Stallman soon stumbled upon a surprising fact: he could charge for the software he was giving away and make some money. People loved his software, but it was often hard to keep track of it. Getting the package delivered on computer tape or a CD-ROM gave people a hard copy that they could store for future reference or backup. Online manuals were also nice, but the printed book is still a very popular and easy-to-use way of storing information. Stallman's Free Software Foundation began selling printed manuals, tapes, and then CD-ROMs filled with software to make money. Surprisingly, people started paying money for these versions despite the fact that they could download the same versions for free. + +Some folks enjoyed pointing out the hypocrisy in Stallman's move. Stallman had run his mouth for so long that many programming "sellouts" who worked for corporations savored the irony. At last that weenie had gotten the picture. He was forced to make money to support himself, and he was selling out, too. These cynics didn't get what Stallman was trying to do. + +Most of us would have given up at this time. The free software thing seemed like a good idea, but now that the money was running out it was time to get a real job. In writing this book and interviewing some of the famous and not-so-famous free software developers, I found that some were involved in for-profit, not-so-free software development now. Stallman, though, wasn't going to give up his ideals, and his mind started shifting to accommodate this new measure of reality. He decided that it wouldn't be wrong to sell copies of software or even software services as long as you didn't withhold the source code and stomp on anyone's freedom to use the source code as they wished. + +Stallman has always been great at splitting hairs and creating Jesuitical distinctions, and this insight was one of his best. At first glance, it looked slightly nutty. If people were free to do anything they wanted with software, they could just give a copy to their friend and their friend would never send money back to Stallman's Free Software Foundation. In fact, someone could buy a copy from Stallman and then start reselling copies to others to undercut Stallman. The Free Software Foundation and the GNU GPL gave them the freedom to do so. It was as if a movie theater sold tickets to a movie, but also posted a big sign near the exit door that said "Hey, it's absolutely okay for you to prop this open so your friends can sneak in without paying." + +While this total freedom befuddled most people, it didn't fail. Many paid for tapes or CD-ROM versions because they wanted the convenience. Stallman's versions came with the latest bug fixes and new features. They were the quasi-official versions. Others felt that paying helped support the work so they didn't feel bad about doing it. They liked the FSF and wanted it to produce more code. Others just liked printed books better than electronic documentation. Buying them from Stallman was cheaper than printing them out. Still others paid for the CD-ROMs because they just wanted to support the Free Software Foundation. + +Stallman also found other support. The MacArthur Foundation gave him one of their genius grants that paid him a nice salary for five years to do whatever he wanted. Companies like Intel hired him as a consultant and asked him to make sure that some of his software ran on Intel chips. People were quite willing to pay for convenience because even free software didn't do everything that it should. + +Stallman also recognized that this freedom introduced a measure of competition. If he could charge for copies, then so could others. The source code would be a vast commonweal, but the means of delivering it would be filled with people struggling to do the best job of distributing the software. It was a pretty hard-core Reaganaut notion for a reputed communist. At the beginning, few bothered to compete with him, but in time all of the GNU code began to be included with computer operating systems. By the time Linus Torvalds wrote his OS, the GNU code was ready to be included. + +2~ Copyleft + +If Stallman's first great insight was that the world did not need to put up with proprietary source code, then his second was that he could strictly control the use of GNU software with an innovative legal document entitled GNU General Public License, or GPL. To illustrate the difference, he called the agreement a "copyleft" and set about creating a legal document defining what it meant for software to be "free." Well, defining what he thought it should mean. + +The GPL was a carefully crafted legal document that didn't put the software into the "public domain," a designation that would have allowed people to truly do anything they wanted with the software. The license, in fact, copyrighted the software and then extended users very liberal rights for making innumerable copies as long as the users didn't hurt other people's rights to use the software. + +The definition of stepping on other people's rights is one that keeps political science departments at universities in business. There are many constituencies that all frame their arguments in terms of protecting someone's rights. Stallman saw protecting the rights of other users in very strong terms and strengthened his grip a bit by inserting a controversial clause. He insisted that a person who distributes an improved version of the program must also share the source code. That meant that some greedy company couldn't download his GNU Emacs editor, slap on a few new features, and then sell the whole package without including all of the source code they created. If people were going to benefit from the GNU sharing, they were going to have to share back. It was freedom with a price. + +This strong compact was ready-built for some ironic moments. When Apple began trying to expand the scope of intellectual property laws by suing companies like Microsoft for stealing their "look and feel," Stallman became incensed and decided that he wouldn't develop software for Apple machines as a form of protest and spite. If Apple was going to pollute the legal landscape with terrible impediments to sharing ideas, then Stallman wasn't going to help them sell machines by writing software for the machines. But the GNU copyleft license specifically allowed anyone to freely distribute the source code and use it as they wanted. That meant that others could use the GNU code and convert it to run on the Apple if they wanted to do so. Many did port much of the GNU software to the Mac and distributed the source code with it in order to comply with the license. Stallman couldn't do anything about it. Sure, he was the great leader of the FSF and the author of some of its code, but he had given away his power with the license. The only thing he could do was refuse to help the folks moving the software to the Mac. When it came to principles, he placed freedom to use the source code at the top of the hierarchy. + +2~ The GNU Virus + +Some programmers soon started referring to the sticky nature of the license as the "GNU virus" because it infected software projects with its freedom bug. If a developer wanted to save time and grab some of the neat GNU software, he was stuck making the rest of his work just as free. These golden handcuffs often scared away programmers who wanted to make money by charging for their work. + +Stallman hates that characterization. "To call anything 'like a virus' is a very vicious thing. People who say things like that are trying to find ways to make the GPL look bad," he says. + +Stallman did try to work around this problem by creating what he at first called the "Library General Public License" and now refers to as the "Lesser General Public License," a document that allowed software developers to share small chunks of code with each other under less restrictive circumstances. A programmer can use the LGPL to bind chunks of code known as libraries. Others can share the libraries and use them with their source code as long as they don't fully integrate them. Any changes they make to the library itself must be made public, but there is no requirement to release the source code for the main program that uses the library. + +This license is essentially a concession to some rough edges at the corners where the world of programming joins the world of law. While Stallman was dead set on creating a perfect collection of free programs that would solve everyone's needs, he was far from finished. If people were going to use his software, they were going to have to use it on machines made by Sun, AT&T, IBM, or someone else who sold a proprietary operating system along with it. He understood that he needed to compromise, at least for system libraries. + +The problem is drawing boundaries around what is one pile of software owned by one person and what is another pile owned by someone else. The GPL guaranteed that GNU software would "infect" other packages and force people who used his code to join the party and release theirs as well. So he had to come up with a definition that spelled out what it meant for people to use his code and "incorporate" it with others. + +This is often easier said than done. The marketplace has developed ways to sell software as big chunks to people, but these are fictions that camouflage software integration. In modern practice, programmers don't just create one easily distinguished chunk of software known as Microsoft Word or Adobe Photoshop. They build up a variety of smaller chunks known as libraries and link these together. Microsoft Windows, in fact, includes a large collection of libraries for creating the menus, forms, click boxes, and what-not that make the graphical user interfaces. Programmers don't need to write their own instructions for drawing these on the screen and interacting with them. This saves plenty of time and practice for the programmers, and it is a large part of what Microsoft is selling when it sells someone a box with Windows on it. + +Stallman recognized that programmers sometimes wrote libraries that they wanted others to use. After all, that was the point of GNU: creating tools that others would be free to use. So Stallman relented and created the Lesser Public License, which would allow people to create libraries that might be incorporated into other programs that weren't fully GNU. The library itself still came with source code, and the user would need to distribute all changes made to the library, but there was no limitation on the larger package. + +This new license was also something of a concession to reality. In the most abstract sense, programs are just black boxes that take some input and produce some output. There's no limit to the hierarchies that can be created by plugging these boxes together so that the output for one is the input for another. Eventually, the forest of connections grows so thick that it is difficult to draw a line and label one collection of boxes "ProprietarySoft's SUX-2000" and another collection "GNUSoft's Wombat 3.14.15." The connections are so numerous in well-written, effective software that line-drawing is difficult. + +The problem is similar to the one encountered by biologists as they try to define ecosystems and species. Some say there are two different groups of tuna that swim in the Atlantic. Others say there is only one. The distinction would be left to academics if it didn't affect the international laws on fishing. Some groups pushing the vision of one school are worried that others on the other side of the ocean are catching their fish. Others push the two-school theory to minimize the meddling of the other side's bureaucracy. No one knows, though, how to draw a good line. + +Stallman's LGPL was a concession to the fact that sometimes programs can be used like libraries and sometimes libraries can be used like programs. In the end, the programmer can draw a strong line around one set of boxes and say that the GPL covers these functions without leaking out to infect the software that links up with the black boxes. + +2~ Is the Free Software Foundation Anti-Freedom? + +Still, these concessions aren't enough for some people. Many continue to rail against Stallman's definition of freedom and characterize the GPL as a fascist document that steals the rights of any programmer who comes along afterward. Being free means having the right to do anything you want with the code, including keeping all your modifications private. + +To be fair, the GPL never forces you to give away your changes to the source code. It just forces you to release your modifications if you redistribute it. If you just run your own version in your home, then you don't need to share anything. When you start sharing binary versions of the software, however, you need to ship the source code, too. + +Some argue that corporations have the potential to work around this loophole because they act like one person. A company could revise software and "ship it" by simply hiring anyone who wanted to buy it. The new employees or members of the corporation would get access to the software without shipping the source. The source code would never be distributed because it was not publicly shipped. No one seriously believes that anyone would try to exploit this provision with such an extreme interpretation, but it does open the question of whether an airtight license can ever be created. + +These fine distinctions didn't satisfy many programmers who weren't so taken with Stallman's doctrinaire version of freedom. They wanted to create free software and have the freedom to make some money off of it. This tradition dates back many years before Stallman and is a firm part of academic life. Many professors and students developed software and published a free version before starting up a company that would commercialize the work. They used their professor's salary or student stipend to support the work, and the free software they contributed to the world was meant as an exchange. In many cases, the U.S. government paid for the creation of the software through a grant, and the free release was a gift to the taxpayers who ultimately funded it. In other cases, corporations paid for parts of the research and the free release was seen as a way to give something back to the sponsoring corporation without turning the university into a home for the corporation's lowpaid slave programmers who were students in name only. + +In many cases, the free distribution was an honest gift made by researchers who wanted to give their work the greatest possible distribution. They would be repaid in fame and academic prestige, which can be more lucrative than everything but a good start-up's IPO. Sharing knowledge and creating more of it was what universities were all about. Stallman tapped into that tradition. + +But many others were fairly cynical. They would work long enough to generate a version that worked well enough to convince people of its value. Then, when the funding showed up, they would release this buggy version into the "public domain," move across the street into their own new start-up, and resume development. The public domain version satisfied the university's rules and placated any granting agencies, but it was often close to unusable. The bugs were too numerous and too hidden in the cruft to make it worth someone's time. Of course, the original authors knew where the problems lurked, and they would fix them before releasing the commercial version. + +The leader of this academic branch of the free software world became the Computer Systems Research Group at the University of California at Berkeley. The published Berkeley Software Distribution (BSD) versions of UNIX started emerging from Berkeley in the late 1970s. Their work emerged with a free license that gave everyone the right to do what they wanted with the software, including start up a company, add some neat features, and start reselling the whole package. The only catch was that the user must keep the copyright message intact and give the university some credit in the manual and in advertisements. This requirement was loosened in 1999 when the list of people who needed credit on software projects grew too long. Many groups were taking the BSD license and simply replacing the words "University of California" with their name. The list of people who needed to be publicly acknowledged grew with each new project. As the distributions grew larger to include all of these new projects, the process of listing all the names and projects became onerous. The University of California struck the clause requiring advertising credit in the hopes of setting an example that others would follow. + +Today, many free software projects begin with a debate of "GNU versus BSD" as the initial founders argue whether it is a good idea to restrict what users can do with the code. The GNU side always believes that programmers should be forced to donate the code they develop back to the world, while the BSD side pushes for practically unlimited freedom. + +Rick Rashid is one of the major forces behind the development of Microsoft's Windows NT and also a major contributor to our knowledge of how to build a computer operating system. Before he went to Microsoft, he was a professor at Carnegie-Mellon. While he was there, he spearheaded the team responsible for developing Mach, an operating system that offered relatively easy-to-use multitasking built upon a very tiny kernel. Mach let programmers break their software into multiple "threads" that could run independently of each other while sharing the same access to data. + +When asked recently about Mach and the Mach license, he explained that he deliberately wrote the license to be as free as possible. + +The GNU GPL, he felt, wasn't appropriate for technology that was developed largely with government grants. The work should be as free as possible and shouldn't force "other people to do things (e.g., give away their personal work) in order to get access to what you had done." + +He said, in an e-mail interview, "It was my intent to encourage use of the system both for academic and commercial use and it was used heavily in both environments. Accent, the predecessor to Mach, had already been commercialized and used by a variety of companies. Mach continues to be heavily used today--both as the basis for Apple's new MacOS and as the basis for variants of Unix in the marketplace (e.g., Compaq's 64-bit Unix for the Alpha)." + +2~ The Evolution of BSD + +The BSD license evolved along a strange legal path that was more like the meandering of a drunken cow than the laser-like devotion of Stallman. + +Many professors and students cut their teeth experimenting with UNIX on DEC Vaxes that communicated with old teletypes and dumb terminals. AT&T gave Berkeley the source code to UNIX, and this allowed the students and professors to add their instructions and features to the software. Much of their insight into operating system design and many of their bug fixes made their way back to AT&T, where they were incorporated in the next versions of UNIX. No one really thought twice about the source code being available because the shrink-wrapped software market was still in its infancy. The personal computer market wasn't even born until the latter half of the 1970s, and it took some time for people to believe that source code was something for a company to withhold and protect. In fact, many of the programs still weren't being written in higher-level languages. The programmers would write instructions directly for the computer, and while these often would include some instructions for humans, there was little difference between what the humans wrote and the machine read. + +After Bill Joy and others at Berkeley started coming up with several good pieces of software, other universities started asking for copies. At the time, Joy remembers, it was considered a bit shabby for computer science researchers to actually write software and share it with others. The academic departments were filled with many professors who received their formal training in mathematics, and they held the attitude that rigorous formal proofs and analysis were the ideal form of research. Joy and several other students began rebelling by arguing that creating working operating systems was essential experimental research. The physics departments supported experimentalists and theorists. + +So Joy began to "publish" his code by sending out copies to other researchers who wanted it. Although many professors and students at Berkeley added bits and pieces to the software running on the DEC Vaxes, Joy was the one who bundled it all together and gave it the name. Kirk McKusick says in his history of Berkeley UNIX, ". . . interest in the error recovery work in the Pascal compiler brought in requests for copies of the system. Early in 1977, Joy put together the 'Berkeley Software Distribution.' This first distribution included the Pascal system, and, in an obscure subdirectory of the Pascal source, the editor vi. Over the next year, Joy, acting in the capacity of the distribution secretary, sent out about 30 free copies of the system." + +Today, Joy tells the story with a bit of bemused distraction. He explains that he just copied over a license from the University of Toronto and"whited out""University ofToronto" and replaced it with "University of California." +He simply wanted to get the source code out the door. In the beginning, the Berkeley Software Distribution included a few utilities, but by 1979 the code became tightly integrated with AT&T's basic UNIX code. Berkeley gave away the collection of software in BSD, but only AT&T license holders could use it. Many universities were attracted to the package, in part because the Pascal system was easy for its students to use. The personal computer world, however, was focusing on a simpler language known as Basic. Bill Gates would make Microsoft Basic one of his first products. + +Joy says that he wrote a letter to AT&T inquiring about the legal status of the source code from AT&T that was rolled together with the BSD code. After a year, he says, "They wrote back saying, 'We take no position' on the matter." Kirk McKusick, who later ran the BSD project through the years of the AT&T lawsuit, explained dryly, "Later they wrote a different letter." + +Joy was just one of a large number of people who worked heavily on the BSD project from 1977 through the early 1980s. The work was low-level and grungy by today's standards. The students and professors scrambled just to move UNIX to the new machines they bought. Often, large parts of the guts of the operating system needed to be modified or upgraded to deal with a new type of disk drive or file system. As they did this more and more often, they began to develop more and more higher-level abstractions to ease the task. One of the earliest examples was Joy's screen editor known as vi, a simple package that could be used to edit text files and reprogram the system. The "battle" between Joy's vi and Stallman's Emacs is another example of the schism between MIT and Berkeley. This was just one of the new tools included in version 2 of BSD, a collection that was shipped to 75 different people and institutions. + +By the end of the 1970s, Bell Labs and Berkeley began to split as AT&T started to commercialize UNIX and Berkeley stuck to its job of education. Berkeley professor Bob Fabry was able to interest the Pentagon's Defense Advanced Research Projects Agency (DARPA) into signing up to support more development at Berkeley. Fabry sold the agency on a software package that would be usable on many of the new machines being installed in research labs throughout the country. It would be more easily portable so that research would not need to stop every time a new computer arrived. The work on this project became versions 3 and 4 of BSD. + +During this time, the relationship between AT&T and the universities was cordial. AT&T owned the commercial market for UNIX and Berkeley supplied many of the versions used in universities. While the universities got BSD for free, they still needed to negotiate a license with AT&T, and companies paid a fortune. This wasn't too much of a problem because universities are often terribly myopic. If they share their work with other universities and professors, they usually consider their sharing done. There may be folks out there without university appointments, but those folks are usually viewed as cranks who can be safely ignored. Occasionally, those cranks write their own OS that grows up to be Linux. The BSD version of freedom was still a far cry from Stallman's, but then Stallman hadn't articulated it yet. His manifesto was still a few years off. + +The intellectual tension between Stallman and Berkeley grew during the 1980s. While Stallman began what many thought was a quixotic journey to build a completely free OS, Berkeley students and professors continued to layer their improvements to UNIX on top of AT&T's code. The AT&T code was good, it was available, and many of the folks at Berkeley had either directly or indirectly helped influence it. They were generally happy keeping AT&T code at the core despite the fact that all of the BSD users needed to negotiate with AT&T. This process grew more and more expensive as AT&T tried to make more and more money off of UNIX. + +Of course, Stallman didn't like the freedom of the BSD-style license. To him, it meant that companies could run off with the hard work and shared source code of another, make a pile of money, and give nothing back. The companies and individuals who were getting the BSD network release were getting the cumulative hard work of many students and professors at Berkeley (and other places) who donated their time and effort to building a decent OS. The least these companies owed the students were the bug fixes, the extensions, and the enhancements they created when they were playing with the source code and gluing it into their products. + +Stallman had a point. Many of these companies "shared" by selling the software back to these students and the taxpayers who had paid for their work. While it is impossible to go back and audit the motives of everyone who used the code, there have been many who've used BSDstyle code for their personal gain. + +Bill Joy, for instance, went to work at Sun Microsystems in 1982 and brought with him all the knowledge he had gained in developing BSD. Sun was always a very BSD-centered shop, and many of the people who bought Sun workstations ran BSD. At that time, AT&T still controlled much of the kernel and many of the small extra programs that made UNIX a usable system. + +But there are counter arguments as well. Joy certainly contributed a lot to the different versions of BSD. If anyone deserves to go off and get rich at a company like Sun, it's he. + +Also, the BSD source code was freely available to all comers, and all companies started with the same advantages. The software business is often considered to be one of the most free marketplaces around because of the low barriers to entry. This means that companies should only be able to charge for the value they add to the BSD code. Sure, all of the Internet was influenced by the TCP/IP code, but now Microsoft, Apple, IBM, Be, and everyone else compete on the quality of their interface. + +2~ The Price of Total Freedom + +The debate between BSD-style freedom and GNU-style freedom is one of the greatest in the free programming world and is bound to continue for a long time as programmers join sides and experiment. + +John Gilmore is one programmer who has worked with software developed under both types of licenses. He was employee number five at Sun Microsystems, a cofounder of the software development tool company Cygnus Solutions, and one of the board members of the Electronic Frontier Foundation. His early work at Sun gave him the wealth to pursue many independent projects, and he has spent the last 10 years devoting himself to making it easy for people around the world to use encryption software. He feels that privacy is a fundamental right and an important crime deterrent, and he has funded a number of different projects to advance this right. + +Gilmore also runs the cypherpunks mailing list on a computer in his house named Toad Hall near Haight Street in San Francisco. The mailing list is devoted to exploring how to create strong encryption tools that will protect people's privacy and is well known for the strong libertarian tone of the deliberations. Practically the whole list believes (and frequently reiterates) that people need the right to protect their privacy against both the government and private eavesdropping. Wired magazine featured Gilmore on the cover, along with fellow travelers Eric Hughes and Tim May. + +One of his recent tasks was creating a package of free encryption utilities that worked at the lowest level of the network operating system. These tools, known as Free/SWAN, would allow two computers that meet on the Internet to automatically begin encoding the data they swap with some of the best and most secure codes available. He imagines that banks, scientific laboratories, and home workers everywhere will want to use the toolkit. In fact, AT&T is currently examining how to incorporate the toolkit into products it is building to sell more highspeed services to workers staying at home to avoid the commute. + +Gilmore decided to use the GNU license to protect the Free/SWAN software, in part because he has had bad experiences in the past with totally free software. He once wrote a little program called PDTar that was an improvement over the standard version of Tar used on the Internet to bundle together a group of files into one big, easy-tomanage bag of bits often known affectionately as "tarballs." He decided he wasn't going to mess around with Stallman's GNU license or impose any restrictions on the source code at all. He was just going to release it into the public domain and give everyone total freedom. + +This good deed did not go unpunished, although the punishment was relatively minor. He recalls, "I never made PDTar work for DOS, but six or eight people did. For years after the release, I would get mail saying, 'I've got this binary for the DOS release and it doesn't work.' +They often didn't even have the sources that went with the version so I couldn't help them if I tried." Total freedom, it turned out, brought a certain amount of anarchy that made it difficult for him to manage the project. While the total freedom may have encouraged others to build their own versions of PDTar, it didn't force them to release the source code that went with their versions so others could learn from or fix their mistakes Hugh Daniel, one of the testers for the Free/SWAN project, says that he thinks the GNU General Public License will help keep some coherency to the project. "There's also a magic thing with GPL code that open source doesn't have," Daniel said. "For some reason, projects don't bifurcate in GPL space. People don't grab a copy of the code and call it their own. For some reason there's a sense of community in GPL code. There seems to be one version. There's one GPL kernel and there's umpty-ump BSD branches." + +Daniel is basically correct. The BSD code has evolved, or forked, into many different versions with names like FreeBSD, OpenBSD, and NetBSD while the Linux UNIX kernel released under Stallman's GPL is limited to one fairly coherent package. Still, there is plenty of crosspollination between the different versions of BSD UNIX. Both NetBSD 1.0 and FreeBSD 2.0, for instance, borrowed code from 4.4 BSD-Lite. Also, many versions of Linux come with tools and utilities that came from the BSD project. + +But Daniel's point is also clouded with semantics. There are dozens if not hundreds of different Linux distributions available from different vendors. Many differ in subtle points, but some are markedly different. While these differences are often as great as the ones between the various flavors of BSD, the groups do not consider them psychologically separate. They haven't forked politically even though they've split off their code. + +While different versions may be good for some projects, it may be a problem for packages like Free/SWAN that depend upon interoperability. If competing versions of Free/SWAN emerge, then all begin to suffer because the product was designed to let people communicate with each other. If the software can't negotiate secure codes because of differences, then it begins to fail. + +But it's not clear that the extra freedom is responsible for the fragmentation. In reality, the different BSD groups emerged because they had different needs. The NetBSD group, for instance, wanted to emphasize multiplatform support and interoperability. Their website brags that the NetBSD release works well on 21 different hardware platforms and also points out that some of these hardware platforms themselves are quite diverse. There are 93 different versions of the Macintosh running on Motorola's 68k chips, including the very first Mac. Eighty-nine of them run some part of NetBSD and 37 of them run all of it. That's why they say their motto is "Of course it runs NetBSD." + +The OpenBSD group, on the other hand, is emphasizing security without compromising portability and interoperability. They want to fix all security bugs immediately and be the most secure OS on the marketplace. + +There are also deep personal differences in the way Theo de Raadt, the founder of OpenBSD, started the project after the NetBSD group kicked him out of their core group. + +For all of these reasons, it may be hard to argue that the freedoms provided by the BSD-style license were largely responsible for the splintering. The GNU software users are just as free to make new versions as long as they kick back the source code into free circulation. In fact, it may be possible to argue that the Macintosh versions of some of the GNU code comprise a splinter group because it occurred despite the ill will Stallman felt for the Mac. + +2~ The Synthesis of "Open Source" + +The tension between the BSD licenses and the GNU has always festered like the abortion debate. Everyone picked sides and rarely moved from them. + +In 1998, a group of people in the free software community tried to unify the two camps by creating a new term, "open source." To make sure everyone knew they were serious, they started an unincorporated organization, registered a trademark, and set up a website (www.opensource.org). Anyone who wanted to label their project "open source" +would have to answer to them because they would control the trademark on the name. + +Sam Ockman, a Linux enthusiast and the founder of Penguin Computing, remembers the day of the meeting just before Netscape announced it was freeing its source code. "Eric Raymond came into town because of the Netscape thing. Netscape was going to free their software, so we drove down to Transmeta and had a meeting so we could advise Netscape," he said. + +He explained that the group considered a number of different options about the structure. Some wanted to choose a leader now. Others wanted to emulate an open source project and let a leader emerge through the display of talent and, well, leadership. Others wanted elections. + +The definition of what was open source grew out of the Debian project, one of the different groups that banded together to press CDROMs of stable Linux releases. Groups like these often get into debates about what software to include on the disks. Some wanted to be very pure and only include GPL'ed software. In a small way, that would force others to contribute back to the project because they wouldn't get their software distributed by the group unless it was GPL'ed. Others wanted less stringent requirements that might include quasi-commercial projects that still came with their source code. There were some cool projects out there that weren't protected by GPL, and it could be awfully hard to pass up the chance to integrate them into a package. + +Over time, one of the leaders of the Debian group, Bruce Perens, came to create a definition of what was acceptable and what wasn't. This definition would be large enough to include the GNU General Public License, the BSD-style licenses, and a few others like MIT's X Consortium license and the Artistic license. The X-windows license covers a graphical windowing interface that began at MIT and was also freely distributed with BSD-like freedom. The Artistic license applies to the Perl programming language, a tool that is frequently used to transform files. The Debian meta-definition would embrace all of these. + +The official definition of what was acceptable to Debian leaned toward more freedom and fewer restrictions on the use of software. Of course, that's the only way that anyone could come up with a definition that included both GNU and the much less restrictive BSD. But this was also the intent of the open source group. Perens and Eric Raymond felt that Stallman still sounded too quasi-communist for "conservative businessmen," and they wanted the open source definition to avoid insisting upon the sort of forced sharing that Stallman's GNU virus provided. + +Still, the definition borrowed heavily from Stallman's concept of GNU, and Perens credits him by saying that many of the Debian guidelines are derived from the GPL. An official open source license for a product must provide the programmer with source code that is human-readable. It can't restrict what modifications are made to the software or how it is sold or given away. + +The definition glossed over the difference between BSD and GPU by stating, "The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software." + +The definition proved to be the model for more commercial offerings like the Netscape Public License. In 1998, Netscape started distributing the source code to its popular browser in hopes of collecting help from the Internet and stopping Microsoft's gradual erosion of its turf. The license gave users wide opportunities to make changes and tinker with the software, but it also allowed Netscape to use the changes internally and refuse to share what they did with them. This special privilege offended some users who didn't like the imbalance, but it didn't bother many others who thought it was a reasonable compromise for a chance to tinker with commercial code. Netscape, of course, returned some of the favor by allowing people to keep their modifications private in much the same way that the BSD-style license provided. + +In June 1999, the Open Source Initiative revealed a startling fact. They were close to failing in their attempts to register the term "open source" as a trademark. The phrase was too common to be registered. Instead, they backed away and offered to check out licenses and classify them officially as "OSI Certified" if they met the terms of the OSI's definition of freedom. + +Some reacted negatively. Richard Stallman decided that he didn't like the word "open" as much as "free." Open doesn't capture the essence of freedom. Ockman says, "I don't think it's very fair. For ages, he's always said that the term 'free software' is problematic because people think of 'free beer' when they should be thinking of 'free speech.' We were attempting to solve that term. If the masses are confused, then corporate America is confused even more." + +The debate has even produced more terms. Some people now use the phrase "free source" to apply to the general conglomeration of the GPL and the open source world. Using "free software" implies that someone is aligned with Stallman's Free Software Foundation. Using "open source" implies you're aligned with the more business-friendly Open Source Initiative. So "free source" and "open source" both work as a compromise. Others tweak the meaning of free and refer to GPL protected software as "GNUFree." + +Naturally, all of this debate about freedom can reach comic proportions. Programmers are almost better than lawyers at finding loopholes, if only because they have to live with a program that crashes.~{ Lawyers just watch their clients go to jail. }~ Stallman, for instance, applies the GPL to everything coming out of the GNU project except the license itself. That can't be changed, although it can be freely reproduced. Some argue that if it were changeable, people would be able to insert and delete terms at will. Then they could apply the changed GPL to the new version of the software and do what they want. Stallman's original intent would not be changed. The GPL would still apply to all of the GNU software and its descendants, but it wouldn't be the same GPL. + +1~ Source + +Computer programmers love Star Wars. So it should be no surprise that practically every single member of the free source community has, at one time or another, rolled out the phrase, "Use the Source, Luke." It does a perfect job of capturing the mythical faith that the free source world places in the ability to access the source code to a program. As everyone points out, in the original version of Star Wars, the rebel troops used the plans, the Source, to the Death Star carried in R2D2 to look for weaknesses. + +The free source realm has been pushing the parallels for some time now. When AT&T unveiled their round logo with an offset dimple, most free source people began to snicker. The company that began the free software revolution by pushing its intellectual property rights and annoying Richard Stallman had chosen a logo that looked just like the Death Star. Everyone said, "Imperialist minds think alike." Some even wondered and hoped that George Lucas would sue AT&T for some sort of look-and-feel, trademark infringement. Those who use the legal intimidation light saber should die by the legal intimidation light saber. + +Of course, the free source folks knew that only their loose coalition of rebels spread out around the galaxy would be a strong match for the Empire. The Source was information, and information was power. The Source was also about freedom, one of the best and most consistent reservoirs of revolutionary inspiration around. The rebels might not have teams of lawyers in imperial star cruisers, but they hoped to use the Source to knit together a strong, effective, and more powerful resistance. + +The myth of open access to free source code is a powerful one that has made true believers out of many in the community. The source code is a list of instructions for the computer written out in a programming lan guage that is understandable by humans. Once the compilers converted the source code into the string of bits known as the binary or object code, only computers (and some very talented humans) could understand the instructions. I've known several people who could read 8080 binary code by eye, but they're a bit different from the general population. + +When companies tried to keep their hard work and research secret by locking up the source code, they built a barrier between the users and their developers. The programmers would work behind secret walls to write the source code. After compilers turned the Source into something that computers could read, the Source would be locked up again. The purchasers would only get the binary code because that's all the companies thought the consumers needed. The source code needed to be kept secret because someone might steal the ideas inside and create their own version. + +Stallman saw this secrecy as a great crime. Computer users should be able to share the source code so they can share ways to make it better. This trade should lead to more information-trading in a great feedback loop. Some folks even used the word "bloom" to describe the explosion of interest and cross-feedback. They're using the word the way biologists use it to describe the way algae can just burst into existence, overwhelming a region of the ocean. Clever insights, brilliant bug fixes, and wonderful new features just appear out of nowhere as human curiosity is amplified by human generosity in a grand explosion of intellectual synergy. The only thing missing from the picture is a bunch of furry Ewoks dancing around a campfire.~{ Linux does have many marketing opportunities. Torvalds chose a penguin named Tux as the mascot, and several companies actually manufacture and sell stuffed penguins to the Linux realm. The BSD world has embraced a cute demon, a visual pun on the fact that BSD UNIX uses the word "daemon" to refer to some of the faceless background programs in the OS. }~ + +2~ The Bishop of the Free Marketplace + +Eric Raymond, a man who is sort of the armchair philosopher of the open source world, did a great job of summarizing the phenomenon and creating this myth in his essay "The Cathedral and the Bazaar." +Raymond is an earnest programmer who spent some time working on projects like Stallman's GNU Emacs. He saw the advantages of open source development early, perhaps because he's a hard-core libertarian. Government solutions are cumbersome. Empowering individuals by not restraining them is great. Raymond comes off as a bit more extreme than other libertarians, in part because he doesn't hesitate to defend the second amendment of the U.S. Constitution as much as the first. Raymond is not ashamed to support widespread gun ownership as a way to further empower the individual. He dislikes the National Rifle Association because they're too willing to compromise away rights that he feels are absolute. + +Some people like to call him the Margaret Mead of the free source world because he spent some time studying and characterizing the culture in much the same way that Mead did when she wrote Coming of Age in Samoa. This can be a subtle jab because Margaret Mead is not really the same intellectual angel she was long ago. Derek Freeman and other anthropologists raise serious questions about Mead's ability to see without bias. Mead was a big fan of free love, and many contend it was no accident that she found wonderful tales of unchecked sexuality in Samoa. Freeman revisited Samoa and found it was not the guilt-free land of libertine pleasures that Mead described in her book. He documented many examples of sexual restraint and shame that Mead apparently missed in her search for a paradise. + +Raymond looked at open source development and found what he wanted to find: the wonderful efficiency of unregulated markets. Sure, some folks loved to label Richard Stallman a communist, a description that has always annoyed Stallman. Raymond looked a bit deeper and saw that the basis of the free software movement's success was the freedom that gave each user the complete power to change and improve their software. Just as Sigmund Freud found sex at the root of everything and Carl Jung uncovered a battle of animus and anima, the libertarian found freedom. + +Raymond's essay was one of the first to try to explain why free source efforts can succeed and even prosper without the financial incentives of a standard money-based software company. One of the biggest reasons he cited was that a programmer could "scratch an itch" that bothered him. That is, a programmer might grow annoyed by a piece of software that limited his choices or had an annoying glitch. Instead of cursing the darkness in the brain cavity of the corporate programmer who created the problem, the free source hacker was able to use the Source to try to find the bug. + +Itch-scratching can be instrumental in solving many problems. Some bugs in software are quite hard to identify and duplicate. They only occur in strange situations, like when the printer is out of paper and the modem is overloaded by a long file that is coming over the Internet. Then, and only then, the two buffers may fill to the brim, bump into each other, and crash the computer. The rest of the time, the program floats along happily, encountering no problems. + +These types of bugs are notoriously hard for corporate testing environments to discover and characterize. The companies try to be diligent by hiring several young programmers and placing them in a room with a computer. The team beats on the software all day long and develops a healthy animosity toward the programming team that has to fix the problems they discover. They can nab many simple bugs, but what happens if they don't have a printer hooked up to their machine? What happens if they aren't constantly printing out things the way some office users are? The weird bug goes unnoticed and probably unfixed. + +The corporate development model tries to solve this limitation by shipping hundreds, thousands, and often hundreds of thousands of copies to ambitious users they called "beta testers." Others called them "suckers" or "free volunteers" because once they finish helping develop the software, they get to pay for it. Microsoft even charges some users for the pleasure of being beta testers. Many of the users are pragmatic. They often have no choice but to participate in the scheme because they often base their businesses on some of the software shipped by these companies. If it didn't work, they would be out of a job. + +While this broad distribution of beta copies is much more likely to find someone who is printing and overloading a modem at the same time, it doesn't give the user the tools to help find the problem. Their only choice is to write an e-mail message to the company saying "I was printing yesterday and your software crashed." That isn't very helpful for the engineer, and it's no surprise that many of these reports are either ignored or unsolved. + +Raymond pointed out that the free source world can do a great job with these nasty bugs. He characterized this with the phrase, "Given enough eyeballs, all bugs are shallow," which he characterized as "Linus's Law." That is, eventually some programmer would start printing and using the Internet at the same time. After the system crashed a few times, some programmer would care enough about the problem to dig into the free source, poke around, and spot the problem. Eventually somebody would come along with the time and the energy and the commitment to diagnose the problem. Raymond named this "Linus's Law" after Linus Torvalds. Raymond is a great admirer of Torvalds and thinks that Torvalds's true genius was organizing an army to work on Linux. The coding itself was a distant second. + +Of course, waiting for a user to find the bugs depended on there being someone with enough time and commitment. Most users aren't talented programmers, and most have day jobs. Raymond and the rest of the free source community acknowledge this limitation, but point out that the right person often comes along if the bug occurs often enough to be a real problem. If the bug is serious enough, a non-programmer may even hire a programmer to poke into the source code. + +Waiting for the bug and the programmer to find each other is like waiting for Arthur to find the sword in the stone. But Raymond and the rest of the free source community have even turned this limitation on its head and touted it as an advantage. Relying on users to scratch itches means that problems only get addressed if they have real constituencies with a big enough population to generate the one true believer with enough time on his hands. It's sort of a free market in people's time for fixing bugs. If the demand is there, the solution will be created. It's Say's Law recast for software development: "the supply of bugs creates the talent for fixes." + +Corporate development, on the other hand, has long been obsessed with adding more and more features to programs to give people enough reason to buy the upgrade. Managers have long known that it's better to put more time into adding more doohickeys and widgets to a program than into fixing its bugs. That's why Microsoft Word can do so many different things with the headers and footers of documents but can't stop a Word Macro virus from reproducing. The folks at Microsoft know that when the corporate managers sit down to decide whether to spend the thousands of dollars to upgrade their machines, they'll need a set of new compelling features. People don't like to pay for bug fixes. + +Of course, corporations also have some advantages. Money makes sure that someone is actively trying to solve the bugs in the program. The same free market vision guarantees that the companies that consistently disappoint their customers will go out of business. This developer has the advantage of studying the same source code day in and day out. Eventually he'll learn enough about the guts of the Source to be much more effective than the guy with the jammed printer and modem. He should be able to nab the bug 10 times more quickly then the free source hobbyist just because he's an expert in the system. + +Raymond acknowledges this problem but proposes that the free source model can still be more effective despite the inexperience of the people who are forced to scratch an itch. Again he taps the world of libertarian philosophy and suggests that the free software world is like a bazaar filled with many different merchants offering their wares. Corporate development, on the other hand, is structured like the religious syndicates that built the medieval cathedrals. The bazaars offered plenty of competition but no order. The cathedrals were run by central teams of priests who tapped the wealth of the town to build the vision of one architect. + +The differences between the two were pretty simple. The cathedral team could produce a great work of art if the architect was talented, the funding team was successful, and the management was able to keep everyone focused on doing their jobs. If not, it never got that far. The bazaar, on the other hand, consisted of many small merchants trying to outstrip each other. The best cooks ended up with the most customers. The others soon went out of business. + +The comparison to software was simple. Corporations gathered the tithes, employed a central architect with a grand vision, managed the team of programmers, and shipped a product every once and a bit. The Linux world, however, let everyone touch the Source. People would try to fix things or add new features. The best solutions would be adopted by oth ers and the mediocre would fall by the wayside. Many different Linux versions would proliferate, but over time the marketplace of software would coalesce around the best standard version. + +"In the cathedral-builder view of programming, bugs and development problems are tricky, insidious, deep phenomena. It takes months of scrutiny by a dedicated few to develop confidence that you've winkled them all out. Thus the long release intervals, and the inevitable disappointment when long-awaited releases are not perfect," Raymond said. + +"In the bazaar view, on the other hand, you assume that bugs are generally shallow phenomena--or, at least, that they turn shallow pretty quick when exposed to a thousand eager code-developers pounding on every single new release. Accordingly you release often in order to get more corrections, and as a beneficial side effect you have less to lose if an occasional botch gets out the door." + +2~ They Put a Giant Arrow on the Problem + +This bazaar can be a powerful influence on solving problems. Sure, it isn't guided by a talented architect and teams of priests, but it is a great free-for-all. It is quite unlikely, for instance, that the guy with the overloaded printer and modem line will also be a talented programmer with a grand vision to solve the problem. Someone named Arthur only stumbles across the right stone with the right sword every once and a bit. But if the frustrated user can do a good job characterizing it and reporting it, then someone else can solve it. + +Dave Hitz was one of the programmers who helped Keith Bostic rewrite UNIX so it could be free of AT&T's copyright. Today, he runs Network Appliance, a company that builds stripped-down file servers that run BSD at their core. He's been writing file systems ever since college, and the free software came in quite handy when he was starting his company. When they started building the big machines, the engineers just reached into the pool of free source code for operating systems and pulled out much of the code that would power his servers. They modified the code heavily, but the body of free software that he helped create was a great starting point. + +In his experience, many people would find a bug and patch it with a solution that was good enough for them. Some were just kids in college. Others were programmers who didn't have the time or the energy to read the Source and understand the best way to fix the problem. Some fixed the problem for themselves, but inadvertently created another problem elsewhere. Sorting through all of these problems was hard to do. + +But Hitz says, "Even if they fixed it entirely the wrong way, if they found the place where the problem went away, then they put a giant arrow on the problem." Eventually, enough arrows would provide someone with enough information to solve the problem correctly. Many of the new versions written by people may be lost to time, but that doesn't mean that they didn't have an important effect on the evolution of the Source. + +"I think it's rarely the case that you get people who make a broad base of source code their life," he said. "There are just a whole bunch of people who are dilettantes. The message is, 'Don't underestimate the dilettantes.'" + +2~ How Free Software Can Be a Bazaar or a Cathedral + +When Raymond wrote the essay, he was just trying to suss out the differences between several of the camps in the free source world. He noticed that people running free source projects had different ways of sharing. He wanted to explain which free source development method worked better than others. It was only later that the essay began to take on a more serious target when everyone began to realize that Microsoft was perhaps the biggest cathedral-like development team around. + +Raymond said, "I think that like everyone else in the culture I wandered back and forth between the two modes as it seemed appropriate because I didn't have a theory or any consciousness." + +He saw Richard Stallman and the early years of the GNU projects as an example of cathedral-style development. These teams would often labor for months if not years before sharing their tools with the world. Raymond himself said he behaved the same way with some of the early tools that he wrote and contributed to the GNU project. + +Linus Torvalds changed his mind by increasing the speed of sharing, which Raymond characterized as the rule of "release early and often, delegate everything you can, be open to the point of promiscuity." +Torvalds ran Linux as openly as possible, and this eventually attracted some good contributors. In the past, the FSF was much more careful about what it embraced and brought into the GNU project. Torvalds took many things into his distributions and they mutated as often as daily. Occasionally, new versions came out twice a day. + +Of course, Stallman and Raymond have had tussles in the past. Raymond is careful to praise the man and say he values his friendship, but also tempers it by saying that Stallman is difficult to work with. + +In Raymond's case, he says that he once wanted to rewrite much of the Lisp code that was built into GNU Emacs. Stallman's Emacs allowed any user to hook up their own software into Emacs by writing it in a special version of Lisp. Some had written mail readers. Others had added automatic comment-generating code. All of this was written in Lisp. + +Raymond says that in 1992, "The Lisp libraries were in bad shape in a number of ways. They were poorly documented. There was a lot of work that had gone on outside the FSF and I wanted to tackle that project." + +According to Raymond, Stallman didn't want him to do the work and refused to build it into the distribution. Stallman could do this because he controlled the Free Software Foundation and the distribution of the software. Raymond could have created his own version, but refused because it was too complicated and ultimately bad for everyone if two versions emerged. + +For his part, Stallman explains that he was glad to accept parts of Raymond's work, but he didn't want to be forced into accepting them all. Stallman says, "Actually, I accepted a substantial amount of work that Eric had done. He had a number of ideas I liked, but he also had some ideas I thought were mistaken. I was happy to accept his help, as long as I could judge his ideas one by one, accepting some and declining some. + +"But subsequently he asked me to make a blanket arrangement in which he would take over the development of a large part of Emacs, operating independently. I felt I should continue to judge his ideas individually, so I said no." + +Raymond mixed this experience with his time watching Torvalds's team push the Linux kernel and used them as the basis for his essay on distributing the Source. "Mostly I was trying to pull some factors that I had observed as unconscious folklore so people could take them out and reason about them," he said. + +Raymond says, "Somebody pointed out that there's a parallel of politics. Rigid political and social institutions tend to change violently if they change at all, while ones with more play in them tend to change peacefully." + +There is a good empirical reason for the faith in the strength of free source. After all, a group of folks who rarely saw each other had assembled a great pile of source code that was kicking Microsoft's butt in some corners of the computer world. Linux servers were common on the Internet and growing more common every day. The desktop was waiting to be conquered. They had done this without stock options, without corporate jets, without secret contracts, and without potentially illegal alliances with computer manufacturers. The success of the software from the GNU and Linux world was really quite impressive. + +Of course, myths can be taken too far. Programming computers is hard work and often frustrating. Sharing the source code doesn't make bugs or problems go away--it just makes it a bit easier for someone else to dig into a program to see what's going wrong. The source code may just be a list of instructions written in a programming language that is designed to be readable by humans, but that doesn't mean that it is easy to understand. In fact, most humans won't figure out most source code because programming languages are designed to be understood by other programmers, not the general population. + +To make matters worse, programmers themselves have a hard time understanding source code. Computer programs are often quite complicated and it can take days, weeks, and even months to understand what a strange piece of source code is telling a computer to do. Learning what is happening in a program can be a complicated job for even the best programmers, and it is not something that is taken lightly. + +While many programmers and members of the open source world are quick to praise the movement, they will also be able to cite problems with the myth of the Source. It isn't that the Source doesn't work, they'll say, it's just that it rarely works anywhere near as well as the hype implies. The blooms are rarely as vigorous and the free markets in improvements are rarely as liquid. + +Larry McVoy, an avid programmer, proto-academic, and developer of the BitKeeper toolkit, likes to find fault with the model. It isn't that he doesn't like sharing source code, it's just that he isn't wealthy enough to take on free software projects. "We need to find a way for people to develop free software and pay their mortgages and raise a family," he says. + +"If you look closely," he says, "there really isn't a bazaar. At the top it's always a one-person cathedral. It's either Linus, Stallman, or someone else." That is, the myth of a bazaar as a wide-open, free-for-all of competition isn't exactly true. Sure, everyone can download the source code, diddle with it, and make suggestions, but at the end of the day it matters what Torvalds, Stallman, or someone else says. There is always a great architect of Chartres lording it over his domain. + +Part of this problem is the success of Raymond's metaphor. He said he just wanted to give the community some tools to understand the success of Linux and reason about it. But his two visions of a cathedral and a bazaar had such a clarity that people concentrated more on dividing the world into cathedrals and bazaars. In reality, there's a great deal of blending in between. The most efficient bazaars today are the suburban malls that have one management company building the site, leasing the stores, and creating a unified experience. Downtown shopping areas often failed because there was always one shop owner who could ruin an entire block by putting in a store that sold pornography. On the other side, religion has always been something of a bazaar. Martin Luther effectively split apart Christianity by introducing competition. Even within denominations, different parishes fight for the hearts and souls of people. + +The same blurring holds true for the world of open source software. The Linux kernel, for instance, contains many thousands of lines of source code. Some put the number at 500,000. A few talented folks like Alan Cox or Linus Torvalds know all of it, but most are only familiar with the corners of it that they need to know. These folks, who may number in the thousands, are far outnumbered by the millions who use the Linux OS daily. + +It's interesting to wonder if the ratio of technically anointed to blithe users in the free source world is comparable to the ratio in Microsoft's dominion. After all, Microsoft will share its source code with close partners after they sign some non-disclosure forms.~{ At this writing, Microsoft has not released its source code, but the company is widely known to be examining the option as part of its settlement with the Department of Justice. }~ While Microsoft is careful about what it tells its partners, it will reveal information only when there's something to gain. Other companies have already jumped right in and started offering source code to all users who want to look at it. + +Answering this question is impossible for two different reasons. First, no one knows what Microsoft reveals to its partners because it keeps all of this information secret, by reflex. Contracts are usually negotiated under non-disclosure, and the company has not been shy about exploiting the power that comes from the lack of information. + +Second, no one really knows who reads the Linux source code for the opposite reason. The GNU/Linux source is widely available and frequently downloaded, but that doesn't mean it's read or studied. The Red Hat CDs come with one CD full of pre-compiled binaries and the second full of source code. Who knows whoever pops the second CDROM in their computer? Everyone is free to do so in the privacy of their own cubicle, so no records are kept. + +If I were to bet, I would guess that the ratios of cognoscenti to uninformed users in the Linux and Microsoft worlds are pretty close. Reading the Source just takes too much time and too much effort for many in the Linux world to take advantage of the huge river of information available to them. + +If this is true or at least close to true, then why has the free source world been able to move so much more quickly than the Microsoft world? The answer isn't that everyone in the free source world is using the Source, it's that everyone is free to use it. When one person needs to ask a question or scratch an itch, the Source is available with no questions asked and no lawyers consulted. Even at 3:00 A.M., a person can read the Source. At Microsoft and other corporations, they often need to wait for the person running that division or section to give them permission to access the source code. + +There are other advantages. The free source world spends a large amount of time keeping the source code clean and accessible. A programmer who tries to get away with sloppy workmanship and bad documentation will pay for it later as others come along and ask thousands of questions. + +Corporate developers, on the other hand, have layers of secrecy and bureaucracy to isolate them from questions and comments. It is often hard to find the right programmer in the rabbit warren of cubicles who has the source code in the first place. One Microsoft programmer was quoted as saying, "A developer at Microsoft working on the OS can't scratch an itch he's got with Excel, neither can the Excel developer scratch his itch with the OS--it would take him months to figure out how to build and debug and install, and he probably couldn't get proper source access anyway." + +This problem is endemic to corporations. The customers are buying the binary version, not the source code, so there is no reason to dress up the backstage wings of the theater. After some time, though, people change cubicles, move to other corporations, and information disappears. While companies try to keep source code databases to synchronize development, the efforts often fall apart. After Apple canceled development of their Newton handheld, many Newton users were livid. They had based big projects on the platform and they didn't want to restart their work. Many asked whether Apple could simply give away the OS's source code instead of leaving it to rot on some hard disk. Apple dodged these requests, and this made some people even more cynical. One outside developer speculated, "It probably would not be possible to re-create the OS. The developers are all gone. All of them went to Palm, and they probably couldn't just put it back together again if they wanted to." + +Of course, corporations try to fight this rot by getting their programmers to do a good job at the beginning and write plenty of documentation. In practice, this slips a bit because it is not rewarded by the culture of secrecy. I know one programmer who worked for a project at MIT. The boss thought he was being clever by requiring comments on each procedure and actually enforcing it with an automated text-scanning robot that would look over the source code and count the comments. My friend turned around and hooked up one version of the popular artificial intelligence chatterbots like Eliza and funneled the responses into the comment field. Then everyone was happy. The chatterbot filled the comment field, the automated comment police found something vaguely intelligent, and the programmer got to spend his free time doing other things. The boss never discovered the problem. + +Programmers are the same the world over, and joining the free source world doesn't make them better people or destroy their impudence. But it does penalize them if others come along and try to use their code. If it's inscrutable, sloppy, or hard to understand, then others will either ignore it or pummel them with questions. That is a strong incentive to do it right. + +2~ Open Source and Lightbulbs + +The limitations to the power of open source might be summarized in the answer to the question "How many open source developers does it take to change a lightbulb?" The answer is: 17. Seventeen to argue about the license; 17 to argue about the brain-deadedness of the lightbulb architecture; 17 to argue about a new model that encompasses all models of illumination and makes it simple to replace candles, campfires, pilot lights, and skylights with the same easy-to-extend mechanism; 17 to speculate about the secretive industrial conspiracy that ensures that lightbulbs will burn out frequently; 1 to finally change the bulb; and 16 who decide that this solution is good enough for the time being. + +The open source development model is a great way for very creative people to produce fascinating software that breaks paradigms and establishes new standards for excellence. It may not be the best way, however, to finish boring jobs like fine-tuning a graphical interface, or making sure that the scheduling software used by executives is as bulletproof as possible. + +While the open development model has successfully tackled the problem of creating some great tools, of building a strong OS, and of building very flexible appliance applications like web browsers, it is a long way from winning the battle for the desktop. Some free source people say the desktop applications for average users are just around the corner and the next stop on the Free Software Express. Others aren't so sure. + +David Henkel-Wallace is one of the founders of the free software company Cygnus. This company built its success around supporting the development tools created by Stallman's Free Software Foundation. They would sign contracts with companies to answer any questions they had about using the free software tools. At first companies would balk at paying for support until they realized that it was cheaper than hiring in-house technical staff to do the work. John Gilmore, one of the cofounders, liked to say, "We make free software affordable." + +The company grew by helping chip manufacturers tune the FSF compiler, GCC, for their chip. This was often a difficult and arduous task, but it was very valuable to the chip manufacturer because potential customers knew they could get a good compiler to produce software for the chip. While Intel continued to dominate the desktop, the market for embedded chips to go into products like stoves, microwave ovens, VCRs, or other smart boxes boomed as manufacturers rolled out new chips to make it cheaper and easier to add smart features to formerly dumb boxes. The engineers at the companies were often thrilled to discover that they could continue to use GCC to write software for a new chip, and this made it easier to sell the chip. + +Cygnus always distributed to the Source their modifications to GCC as the GNU General Public License demanded. This wasn't a big deal because the chip manufacturers wanted the software to be free and easy for everyone to use. This made Cygnus one of the clearing-houses for much of the information on how GCC worked and how to make it faster. + +Henkel-Wallace is quick to praise the power of publicly available source code for Cygnus's customers. They were all programmers, after all. If they saw something they didn't like with GCC, they knew how to poke around on the insides and fix it. That was their job. + +"[GCC] is a compiler tool and it was used by developers so they were smart enough. When something bothered someone, we fixed it. There was a very tight coupling," he said. + +He openly wonders, though, whether the average word processor or basic tool user will be able to do anything. He says, "The downside is that it's hard to transfer that knowledge with a user who isn't a developer. Let's say Quicken has a special feature for lawyers. You need to have a more formal model because the lawyers aren't developers. (We're fortunate in that regard.)" + +That is, lawyers aren't schooled enough in the guts of computer development to complain in the right way. A programmer could say, +"GCC is optimizing away too much dead code that isn't really dead." +Other folks in the GCC community would know what is going on and be able to fix it. A lawyer might just say, "Quicken screwed up my billing and had me billing twenty-six hours in a day." This wouldn't pinpoint the problem enough for people to solve it. The lawyer doesn't understand the inside of the software like the programmer. + +In situations like this, Henkel-Wallace believes that a corporate-style team may be the only one that can study the problems thoroughly enough to find solutions. Intuit, the manufacturer of Quicken, is well known for videotaping many standard users who use their product for the first time. This allows them to pinpoint rough spots in the program and identify places where it could be improved. This relentless smoothing and polishing has made the product one of the best-known and widely used tools on desktops. It isn't clear that non-programmers could have accomplished the same quality by working together with the Source at their disposal. + +2~ The Source and the Language that We Speak + +There are deeper, more philosophical currents to the open source world. The personal computer industry is only a few decades old. While it has advanced rapidly and solved many problems, there is still very little understanding of the field and what it takes to make a computer easy to use. This has been the great struggle, and the free source world may be an essential part of this trip. + +Tim O'Reilly, the publisher of many books and a vocal proponent of the open source world, says, "We've gone through this period of thinking of programs as artifacts. A binary object is a thing. Open source is part of thinking of computers as a process." In other words, we've done a good job of creating computers you can buy off the shelf and software that can be bought in shrink-wrapped boxes, but we haven't done a good job of making it possible for people to talk to the machines. + +To a large extent, the process has been a search for a good language to use to communicate with the computer. Most of the recent development followed the work at Xerox PARC that created some of the first graphical user interfaces. Apple followed their lead and Microsoft followed Apple. Each bought into the notion that creating a neat picture representing the files on a screen would make a neat metaphor that could make it easier for people to interact with the computers. Dragging a file to the trash was somehow easier for people to do than typing a cryptic command like "rm." + +In the 1980s, that sort of graphical thinking was considered brilliant. Pictures were prettier than words, so it was easy to look at the clean, pretty Macintosh screen and think it was easier to use just because it was easier to look at. + +But the pretty features merely hid a massive amount of complexity, and it was still hard to work with the machines. Don Norman, a human/computer interface engineer at Apple, once wrote a fascinating discussion of the company's design of their computer's on-off switch. He pointed out that the switch couldn't be a simple power switch that could cut the power on and off because the computer needed to orchestrate the start-up and shutdown procedure. It needed to close up files, store data safely, and make sure everything was ready to start up again. + +The design of the power switch was made even more complicated by the fact that it was supposed to work even when the computer crashed. That is, if bad programming jumbles the memory and screws up the central processor, the power switch is still supposed to shut down the machine. Of course, the computer couldn't even add two numbers together after it crashed, so it couldn't even begin to move through all the clerical work necessary to shut down the machine. The Macintosh on which I wrote this book can crash so badly that the power switch doesn't work, and I can only reset it by sticking a paper clip into a hidden hole. + +Norman's work shows how hard it can be to come up with a simple language that allows humans and computers to communicate about a task that used to be solved with a two-position light switch. This problem can be seen throughout the industry. One computer tutor told me, +"I am so tired of telling people to shut down their computers by pushing the 'Start' button." Microsoft Windows places all of the features on a menu tree that grows out of one button labeled "Start." This may have been a great way to capture the potential to do new things that they felt they were selling, but it continues to be confusing to all new users of the machines. Why should they push start to stop it? + +The quest for this Source-level control can take many strange turns. By the middle of the 1980s, programmers at Apple realized that they had gone a bit too far when they simplified the Mac's interface. The visual language of pointing and clicking at icons may have been great for new users, but it was beginning to thwart sophisticated users who wanted to automate what they did. Many graphics designers would find themselves repeatedly doing the same steps to image files, and it was boring. They wondered, why couldn't the computer just repeat all their instructions and save them all that pointing and clicking? + +In a sense, the sophisticated Mac users were looking for the Source. They wanted to be able to write and modify simple programs that controlled their software. The problem was that the graphical display on the Mac wasn't really suited to the task. How do you describe moving the mouse and clicking on a button? How do you come up with a language that means "cut out this sample and paste it over here"? The actions were so visual that there weren't any words or language to describe them. + +This problem confounded Apple for the next 10 years, and the company is slowly finishing its solution, known as AppleScript. The task has not been simple, but it has been rewarding for many who use their Macintoshes as important chains in data production lines. Apple included instructions for moving icons to locations, uploading files, changing the color of icons, and starting up programs with others. + +The nicest extension was a trick that made the AppleScript "recordable." That is, you could turn on a recorder before stepping through the different jobs. The Mac would keep track of your actions and generate a program that would allow you to repeat what you were doing. Still, the results were far from simple to understand or use. Here's a simple snippet of AppleScript code that will select all files in one directory with the word "Speckle" in their title and open them up with another application: + +code{ + +tell application "Finder" + set theFiles to every file in folder (rootPlus) whose + name contains "Speckle" + with timeout of 600 seconds + repeat with aFile in theFiles + open (aFile) using (file "Macintosh HD: Make + GIF (16 colors, Web)") + end repeat + end timeout +end tell + +}code + +This Source can then be run again and again to finish a task. Making this tool available to users has been a challenge for Apple because it forces them to make programming easier. Many people learn AppleScript by turning on the recording feature and watching what happens when they do what they would normally do. Then they learn how to insert a few more commands to accomplish the task successfully. In the end, they become programmers manipulating the Source without realizing it. + +O'Reilly and others believe that the open source effort is just an extension of this need. As computers become more and more complex, the developers need to make the internal workings more and more open to users. This is the only way users can solve their problems and use the computers effectively. + +"The cutting edge of the computer industry is in infoware. There's not all that much juice in the kind of apps we wrote in the eighties and nineties. As we get speech recognition, we'll go even more in the direction of open source," he says. + +"There are more and more recipes that are written down. These are going to migrate into lower and lower layers of software and the computer is going to get a bigger and bigger vocabulary." + +That is, more and more of the Source is going to need to become transparent to the users. It's not just a political battle of Microsoft versus the world. It's not just a programmer's struggle to poke a nose into every corner of a device. It's about usability. More and more people need to write programs to teach computers to do what they need to do. Access to the Source is the only way to accomplish it. + +In other words, computers are becoming a bigger and bigger part of our lives. Their language is becoming more readily understandable by humans, and humans are doing a better job of speaking the language of computers. We're converging. The more we do so, the more important the Source will be. There's nothing that Microsoft or corporate America can do about this. They're going to have to go along. They're going to have to give us access to the Source. + +1~ People + +When I was in college, a friend of mine in a singing group would often tweak his audience by making them recite Steve Martin's "Individualist's Creed" in unison. Everyone would proclaim that they were different, unique, and wonderfully eccentric individuals together with everyone else in the audience. The gag played well because all the individualists were also deeply committed to living a life filled with irony. + +The free source world is sort of a Club Med for these kinds of individualists. Richard Stallman managed to organize a group of highly employable people and get them to donate their $50+-per-hour time to a movement by promising complete freedom. Everyone who showed up valued freedom much more than the money they could be making working for big companies. It's not a bit surprising that all of the free thinkers are also coming up with the same answers to life. Great minds think alike, right? + +This large collection of dedicated individualists is predisposed to moments of easy irony. Black is by far their favorite color. Long hair and beards are common. T-shirts and shorts are the rule when it gets warm, and T-shirts and jeans dominate when the weather turns cold. No one wears suits or anything so traditional. That would be silly because they're not as comfortable as T-shirts and jeans. Fitting in with the free thinkers isn't hard. + +The group is not particularly republican or democrat, but libertarian politics are easily understood and widely supported. Gun control is usually considered to be wrong, if only because the federal government will move on to controlling something else when they're finished with guns. ~{ In fact, the federal government already considers encryption software to be a munition and often tries to regulate it as such. }~ Taxes are bad, and some in the group like to dream of when they'll be driven away by the free-flowing, frictionless economy of the Internet. Folks like to say things like "Governments are just speed bumps on the information superhighway." + +The first amendment is very popular and many are sure that practically everything they do with a computer is a form of speech or expression. The government shouldn't have the right to control a website's content because they'll surely come to abuse that power in the future. Some even rage against private plans to rate websites for their content because they're certain that these tools will eventually be controlled by those in power. To the most extreme, merely creating a list of sites with information unsuitable for kids is setting up the infrastructure for the future Nazis to start burning websites. + +Virtually everyone believes that strong codes and cryptography are essential for protecting a person's privacy online. The U.S. government's attempt to control the technology by regulating its export is widely seen as a silly example of how governments are trying to grab power at the expense of their citizens. The criminals already have the secret codes; +why shouldn't the honest people be able to protect their data? + +Pornography or references to sex in the discussions are rare, if only because the world of the libido is off the main topic. It's not that sex isn't on the minds of the free software community, it's just that the images are so freely available that they're uninteresting. Anyone can go to www.playboy.com, but not everyone can write a recursively descending code optimizer. People also rarely swear. While four-letter words are common on Wall Street and other highly charged environments, they're rare in the technology world. + +Much of the community are boys and men, or perhaps more correctly "guys." While there are some older programmers who continue to dig the excitement and tussle of the free source world, many are high school and college guys with plenty of extra time on their hands. Many of them are too smart for school, and writing neat software is a challenge for them. Older people usually get bogged down with a job and mortgage payments. It's hard for them to take advantage of the freedom that comes with the source code. Still, the older ones who survive are often the best. They have both deep knowledge and experience. + +The average population, however, is aging quickly. As the software becomes better, it is easier for working stiffs to bring it into the corporate environments. Many folks brag about sneaking Linux into their office and replacing Microsoft on some hidden server. As more and more users find a way to make money with the free software, more and more older people (i.e., +over 25) are able to devote some time to the revolution. + +I suppose I would like to report that there's a healthy contingent of women taking part in the free source world, but I can't. It would be nice to isolate the free software community from the criticism that usually finds any group of men. By some definition or legal reasoning, these guys must be practicing some de facto discrimination. Somebody will probably try to sue someone someday. Still, the women are scarce and it's impossible to use many of the standard explanations. The software is, after all, free. It runs well on machines that are several generations old and available from corporate scrap heaps for several hundred dollars. Torvalds started writing Linux because he couldn't afford a real version of UNIX. Lack of money or the parsimony of evil, gender-nasty parents who refuse to buy their daughters a computer can hardly be blamed. + +In fact, many of the people online don't even know the gender of the person on the other end. Oblique nicknames like "303," "nomad," +"CmdrTaco," or "Hemos" are common. No one knows if you're a boy or a girl online. It's almost like the ideal of a gender-free existence proposed by the unisex dreamers who wrote such stuff as "Free to Be You and Me," trying to convince children that they were free to pursue any dream they wanted. Despite the prevalence of these gender-free visions, the folks who ended up dreaming of a world where all the software was free turned out to be almost entirely men. + +Most of the men would like to have a few more women show up. They need dates as much as any guy. If anything, the crown of Evil Discriminator might be placed on the heads of the girls who scorn the guys who are geeks, dweebs, and nerds. A girl couldn't find a better ratio of men if she tried. + +This may change in the future if organizations like LinuxChix (www.linuxchix.org) have their way. They run a site devoted to celebrating women who enjoy the open source world, and they've been trying to start up chapters around the world. The site gives members a chance to post their names and biographical details. Of course, several of the members are men and one is a man turning into a woman. The member writes, "I'm transsexual (male-to-female, pre-op), and at the moment still legally married to my wife, which means that if we stay together we'll eventually have a legal same-sex marriage." + +Still, there's not much point in digging into this too deeply because the free source world rarely debates this topic. Everyone is free to use the software and contribute what they want. If the women want to come, they can. If they don't, they don't have to do so to fulfill some mandate from society. No one is sitting around debating whether having it all as a woman includes having all of the source code. It's all about freedom to use software, not dating, mating, or debating sexual roles in society. + +Racial politics, however, are more complicated. Much of the Linux community is spread out throughout the globe. While many members come from the United States, major contributors can be found in most countries. Linus Torvalds, of course, came from Finland, one of the more technically advanced countries in the world. Miguel de Icaza, the lead developer of the GNOME desktop, comes from Mexico, a country perceived as technically underdeveloped by many in the United States. + +Jon Hall, often called maddog, is one of the first members of corporate America to recognize that neat things were going on throughout the world of open source software. He met Torvalds at a conference and shipped him a Digital computer built around the Alpha chip when he found out that Torvalds wanted to experiment with porting his software to a 64-bit architecture. Hall loves to speculate about the spread of free software throughout the globe and says, "Who knows where the next great mind will come from? It could be Spain, Brazil, India, Singapore, or dare I say Finland?" + +In general, the free source revolution is worldwide and rarely encumbered by racial and national barricades. Europe is just as filled with Linux developers as America, and the Third World is rapidly skipping over costly Microsoft and into inexpensive Linux. Interest in Linux is booming in China and India. English is, of course, the default language, but other languages continue to live thanks to automatic translation mechanisms like Babelfish. + +This border-free existence can only help the spread of free source software. Many countries, claiming national pride, would rather use software developed by local people. Many countries explicitly distrust software coming from the United States because it is well known that the U.S. government tries to restrict security software like encryption at the request of its intelligence-gathering agencies. In November 1999, the German government's Federal Ministry of Finance and Technology announced a grant for the GNU Privacy Guard project. Why would a country want to send all of its money to Redmond, Washington, when it could bolster a local group of hackers by embracing a free OS? For everyone but the United States, installing a free OS may even be a patriotic gesture. + +2~ Icons + +The archetypes are often defined by prominent people, and no one is more central to the free source world than Richard Stallman. Some follow the man like a disciple, others say that his strong views color the movement and scare away normal people. Everyone goes out of their way to praise the man and tell you how much they respect what he's done. Almost everyone will turn around and follow the compliment with a veiled complaint like, "He can be difficult to work with." +Stallman is known for being a very unreasonable man in the sense that George Bernard Shaw used the word when he said, "The Reasonable man adapts to nature. The unreasonable man seeks to adapt nature to himself. Therefore it is only through the actions of unreasonable men that civilization advances." The reasonable man would still be waiting on hold as the tech support folks in MegaSoft played with their Nerf footballs and joked about the weenies who needed help using their proprietary software. + +I often think that only someone as obsessed and brilliant as Stallman could have dreamed up the GNU Public License. Only he could have realized that it was possible to insist that everyone give away the source code and allow them to charge for it at the same time if they want. Most of us would have locked our brains if we found ourselves with a dream of a world of unencumbered source code but hobbled by the reality that we needed money to live. Stallman found himself in that place in the early days of the Free Software Foundation and then found a way to squeeze his way out of the dilemma by charging for CD-ROMs and printed manuals. The fact that others could still freely copy the information they got meant that he wasn't compromising his core dream. + +If Stallman is a product of MIT, then one opposite of him is the group of hackers that emerged from Berkeley and produced the other free software known as FreeBSD, NetBSD, and OpenBSD. Berkeley's computer science department always had a tight bond with AT&T and Sun and shared much of the early UNIX code with both. + +While there were many individuals at Berkeley who are well known among developers and hackers, no one stands out like Richard Stallman. This is because Stallman is such a strong iconoclast, not because Berkeley is the home of ne'er-do-wells who don't measure up. In fact, the pragmatism of some of the leaders to emerge from the university is almost as great as Stallman's idealism, and this pragmatism is one of the virtues celebrated by Berkeley's circle of coders. For instance, Bill Joy helped develop much of the early versions of the BSD before he went off to take a strong leadership role at Sun Microsystems. + +Sun has a contentious relationship with the free software world. It's far from a free software company like Red Hat, but it has contributed a fair number of lines of software to the open source community. Still, Sun guards its intellectual property rights to some packages fiercely and refuses to distribute the source with an official open source license. Instead, it calls their approach the "community source license" and insists that it's good enough for almost everyone. Users can read the source code, but they can't run off with it and start their own distribution. + +Many others from Berkeley followed Joy's path to Sun. John Ousterhout left his position as a professor at Berkeley in 1994 to move to Sun. Ousterhout was known for developing a fairly simple but powerful scripting tool known as TCL/Tk. One part of it, the Tool Control Language (TCL), was a straightforward English-like language that made it pretty easy for people to knit together different modules of code. The user didn't have to be a great programmer to work with the code because the language was designed to be straightforward. There were no complicated data structures or pointers. Everything was a string of ASCII text. + +The second part, the Tool kit (Tk), contained a variety of visual widgets that could be used to get input for and output from a program. The simplest ones were buttons, sliders, or menus, but many people wrote complicated ones that served their particular needs. + +The TCL/Tk project at Berkeley attracted a great deal of attention from the Net. Ousterhout, like most academics, freely distributed his code and did a good job helping others use the software. He and his students rewrote and extended the code a number of times, and this constant support helped create even more fans. The software scratched an itch for many academics who were smart enough to program the machines in their lab, but burdened by more important jobs like actually doing the research they set out to do. TCL/Tk picked up a wide following because it was easy for people to learn a small amount quickly. Languages like C required a semester or more to master. TCL could be picked up in an afternoon. + +Many see the pragmatism of the BSD-style license as a way for the Berkeley hackers to ease their trip into corporate software production. The folks would develop the way-out, unproven ideas using public money before releasing it with the BSD license. Then companies like Sun would start to resell it. + +The supporters of the BSD licenses, of course, don't see corporate development as a bad thing. They just see it as a way for people to pay for the extra bells and whistles that a dedicated, market-driven team can add to software. + +Ousterhout's decision to move to Sun worried many people because they thought it might lead to a commercialization of the language. Ousterhout answered these with an e-mail message that said TCL/Tk would remain free, but Sun would try to make some money on the project by selling development tools. + +"Future enhancements made toTcl andTk by my group at Sun, including the ports to Macs and PCs, will be made freely available to anyone to use for any purpose. My view, and that of the people I report to at Sun, is that it wouldn't work for Sun to try to takeTcl andTk proprietary anyway: +someone (probably me, in a new job) would just pick up the last free release and start an independent development path. This would be a terrible thing for everyone since it would result in incompatible versions. + +"Of course, Sun does need to make money from the work of my team or else they won't be able to continue to support us. Our current plan is to charge for development tools and interesting extensions and applications. Balancing the public and the profitable will be an ongoing challenge for us, but it is very important both to me and to Sun to keep the support of the existing Tcl community," he wrote. + +In some respects, Ousterhout's pragmatism was entirely different from Stallman's. He openly acknowledged the need to make money and also admitted that Sun was leaving TCL/Tk free because it might be practically impossible to make it proprietary. The depth of interest in the community made it likely that a free version would continue to evolve. Stallman would never cut such a deal with a company shipping proprietary software. + +In other respects, many of the differences are only at the level of rhetoric. Ousterhout worked on producing a compromise that would leave TCL/Tk free while the sales of development tools paid the bills. Stallman did the same thing when he figured out a way to charge people for CD-ROMs and manuals. Ousterhout's work at Sun was spun off into a company called Scriptics that is surprisingly like many of the other free software vendors. The core of the product, TCL/Tk 8.1 at this time, is governed by a BSD-style license. The source code can be downloaded from the site. The company itself, on the other hand, sells a more enhanced product known as TCLPro. + +In many ways, the real opposite to Richard Stallman is not Bill Joy or John Ousterhout, it's Linus Benedict Torvalds. While Stallman, Joy, and Ousterhout are products of the U.S. academic system, Torvalds is very much an outsider who found himself trying to program in Europe without access to a decent OS. While the folks at Berkeley, MIT, and many U.S. universities were able to get access to UNIX thanks to carefully constructed licenses produced by the OS's then-owner, AT&T, students in Finland like Torvalds were frozen out. + +"I didn't have many alternatives. I had the commercial alternative [UNIX], which was way too expensive. It was really out of reach for a normal human being, and not only out of reach in a monetary sense, but because years ago commercial UNIX vendors weren't interested in selling to individuals. They were interested in selling to large corporations and banks. So for a normal person, there was no choice," he told VAR Business. + +When Linux began to take off, Torvalds moved to Silicon Valley and took a job with the supersecret research firm Transmeta. At Comdex in November 1999, Torvalds announced that Transmeta was working on a low-power computing chip with the nickname "Crusoe." + +There are, of course, some conspiracy theories. Transmeta is funded by a number of big investors including Microsoft cofounder Paul Allen. The fact that they chose to employ Torvalds may be part of a plan, some think, to distract him from Linux development. After all, version 2.2 of the kernel took longer than many expected, although it may have been because its goals were too ambitious. When Microsoft needed a coherent threat to offer up to the Department of Justice, Transmeta courteously made Torvalds available to the world. Few seriously believe this theory, but it is constantly whispered as a nervous joke. + +2~ Flames + +The fights and flamefests of the Internet are legendary, and the open source world is one of the most contentious corners of the Net. People frequently use strong words like "brain dead," "loser," "lame," "gross," +and "stoooopid" to describe one another's ideas. If words are the only way to communicate, then the battle for mindshare means that those who wield the best words win. + +In fact, most of the best hackers and members of the free source world are also great writers. Spending days, weeks, months, and years of your life communicating by e-mail and newsgroups teaches people how to write well and get to the point quickly. The Internet is very textual, and the hard-core computer programmers have plenty of experience spitting out text. As every programmer knows, you're supposed to send e-mail to the person next to you if you want to schedule lunch. That person might be in the middle of something. + +Of course, there's a danger to making a sweeping generalization implying that the free source world is filled with great writers. The fact is that we might not have heard from the not-so-great writers who sit lurking on the Net. While some of the students who led the revolutions of 1968 were quite articulate, many of the tie-dyed masses were also in the picture. You couldn't miss them. On the Internet, the silent person is invisible. + +Some argue that the free software world has burgeoned because the silent folks embraced the freely available source code. Anyone could download the source code and play with it without asking permission or spending money. That meant that 13-year-old kids could start using the software without asking their parents for money. SCO Unix and Windows NT cost big bucks. + +This freedom also extended to programmers at work. In many companies, the computer managers are doctrinaire and officious. They often quickly develop knee-jerk reactions to technologies and use these stereotypes to make technical decisions. Free software like Linux was frequently rejected out of hand by the gatekeepers, who thought something must be wrong with the software if no one was charging for it. These attitudes couldn't stop the engineers who wanted to experiment with the free software, however, because it had no purchase order that needed approval. + +The invisible-man quality is an important part of the free software world. While I've described the bodies and faces of some of the betterknown free source poster boys, it is impossible to say much about many of the others. The community is spread out over the Internet throughout the world. Many people who work closely on projects never meet each other. The physical world with all of its ways of encoding a position in a hierarchy are gone. No one can tell how rich you are by your shoes. The color of your skin doesn't register. It's all about technology and technological ideas. + +In fact, there is a certain degree of Emily Dickinson in the world. Just as that soul selected her own society and shut the door on the rest of the world, the free software world frequently splits and resplits into smaller groups. While there is some cross-pollination, many are happy to live in their own corners. OpenBSD, FreeBSD, and NetBSD are more separate countries than partners in crime. They evolve on their own, occasionally stealing ideas and source code to bridge the gap. + +Many writers have described some of their problems with making hay of the Silicon Valley world. Screenwriters and television producers often start up projects to tap into the rich texture of nerdlands only to discover that there's nothing that compelling to film. It's just miles and miles of steel-frame buildings holding acres and acres of cubicles. Sure, there are some Ping-Pong tables and pinball machines, but the work is all in the mind. Eyes want physical action, and all of the excitement in a free source world is in the ideas. + +But people are people. While there's no easy way to use the old standbys of race or clothes to discriminate, the technical world still develops ways to classify its members and place them in camps. The free software world has its own ways to distinguish between these camps. + +The biggest distinction may be between folks who favor the GPL and those who use the BSD-style license to protect their software. This is probably the biggest decision a free software creator must make because it controls whether others will be able to build commercial versions of the software without contributing the new code back to the project. + +People who embrace the GPL are more likely to embrace Richard Stallman, or at least less likely to curse him in public. They tend to be iconoclastic and individualistic. GPL projects tend to be more cultish and driven by a weird mixture of personality and ain't-it-cool hysteria. + +The people on the side of BSD-style license, on the other hand, seem pragmatic, organized, and focused. There are three major free versions of BSD UNIX alone, and they're notable because they each have centrally administered collections of files. The GPL-protected Linux can be purchased from at least six major groups that bundle it together, and each of them includes packages and pieces of software they find all over the Net. + +The BSD-license folks are also less cultish. The big poster boys, Torvalds and Stallman, are both GPL men. The free versions of BSD, which helped give Linux much of its foundation, are largely ignored by the press for all the wrong reasons. The BSD teams appear to be fragmented because they are all separate political organizations who have no formal ties. There are many contributors, which means that BSD has no major charismatic leader with a story as compelling as that of Linus Torvalds. + +Many contributors could wear this mantle and many have created just as much code. But life, or at least the media's description of it, is far from fair. + +The flagship of the BSD world may be the Apache web server group, which contributed greatly to the success of the platform. This core team has no person who stands out as a leader. Most of the people on the team are fully employed in the web business, and several members of the team said that the Apache team was just a good way for the people to advance their day jobs. It wasn't a crusade for them to free source code from jail. + +The Apache web server is protected by a BSD-style license that permits commercial reuse of the software without sharing the source code. It is a separate program, however, and many Linux users run the software on Linux boxes. Of course, this devotion to business and relatively quiet disposition isn't always true. Theo de Raadt, the leader of the OpenBSD faction, is fond of making bold proclamations. In his interview with me, he dismissed the Free Software Foundation as terribly misnamed because you weren't truly free to do whatever you wanted with the software. + +In fact, it's easy to take these stereotypes too far. Yes, GPL folks can be aggressive, outspoken, quick-thinking, driven, and tempestuous. Sure, BSD folks are organized, thorough, mainstream, dedicated, and precise. But there are always exceptions to these rules, and the people in each camp will be quick to spot them. + +Someone might point out that Alan Cox, one of the steadfast keepers of the GPL-protected Linux kernels, is not particularly flashy nor given to writing long manifestos on the Net. Others might say that Brian Behlendorf has been a great defender of the Apache project. He certainly hasn't avoided defending the BSD license, although not in the way that Stallman might have liked. He was, after all, one of the members of the Apache team who helped convince IBM that they could use the Apache web server without danger. + +After BSD versus GPL, the next greatest fault line is the choice of editor. Some use the relatively simple vi, which came out of Berkeley and the early versions of BSD. Others cleave to Stallman's Emacs, which is far more baroque and extreme. The vi camp loves the simplicity. The Emacs fans brag about how they've programmed their version of Emacs to break into the White House, snag secret pictures of people in compromising positions, route them through an anonymous remailer, and negotiate for a big tax refund all with one complicated control-meta-trans keystroke. + +While this war is well known, it has little practical significance. People can choose for themselves, and their choices have no effect on others. GPL or BSD can affect millions; vi versus Emacs makes no big difference. It's just one of the endless gag controversies in the universe. If Entertainment Tonight were covering the free software world, they would spend hours cataloging which stars used vi and which used Emacs. Did Shirley MacLaine use vi or Emacs or even wordstar in a previous life? + +Some of the other fault lines aren't so crisp, but end up being very important. The amount of order or lack of order is an important point of distinction for many free source people, and there is a wide spectrum of choices available. While the fact that all of the source code is freely redistributable makes the realm crazy, many groups try to control it with varying amounts of order. Some groups are fanatically organized. Others are more anarchic. Each has a particular temperament. + +The three BSD projects are well known for keeping control of all the source code for all the software in the distribution. They're very centrally managed and brag about keeping all the source code together in one build tree. The Linux distributions, on the other hand, include software from many different sources. Some include the KDE desktop. Others choose GNOME. Many include both. + +Some of the groups have carefully delineated jobs. The Debian group elects a president and puts individuals in charge of particular sections of the distribution. Or perhaps more correctly, the individuals nominate themselves for jobs they can accomplish. The group is as close to a government as exists in the open software world. Many of the Open Source Initiative guidelines on what fits the definition of "open source" evolved from the earlier rules drafted by the Debian group to help define what could and couldn't be included in an official Debian distribution. The OpenBSD group, on the other hand, opens up much of the source tree to everyone on the team. Anyone can make changes. Core areas, on the other hand, are still controlled by leaders. + +Some groups have become very effective marketing forces. Red Hat is a well-run company that has marketing teams selling people on upgrading their software as well as engineering teams with a job of writing improved code to include in future versions. Red Hat packages their distribution in boxes that are sold through normal sales channels like bookstores and catalogs. They have a big presence at trade shows like LinuxExpo, in part because they help organize them. + +Other groups like Slackware only recently opened up a website. OpenBSD sells copies to help pay for its Internet bills, not to expand its marketing force. Some distributions are only available online. + +In many cases, there is no clear spectrum defined between order and anarchy. The groups just have their own brands of order. OpenBSD brags about stopping security leaks and going two years without a rootlevel intrusion, but some of its artwork is a bit scruffy. Red Hat, on the other hand, has been carefully working to make Linux easy for everyone to use, but they're not as focused on security details. + +Of course, this amount of order is always a bit of a relative term. None of these groups have strong lines of control. All of them depend upon the contributions of people. Problems only get solved if someone cares enough to do it. + +This disorder is changing a bit now that serious companies like Red Hat and VA Linux are entering the arena. These companies pay fulltime programmers to ensure that their products are bug free and easy to use. If their management does a good job, the open source software world may grow more ordered and actually anticipate more problems instead of waiting for the right person to come along with the time and the inclination to solve them. + +These are just a few of the major fault lines. Practically every project comes with major technical distinctions that split the community. Is Java a good language or another attempt at corporate control? How should the basic Apache web server handle credit cards? What is the best way to handle 64-bit processors? There are thousands of differences, hundreds of fault lines, scores of architectural arguments, and dozens of licenses. But at least all of the individuals agree upon one thing: reading the source code is essential. + +1~ Politics + +One of the great questions about the free source movement is its politics. The world loves to divide every issue into two sides and then start picking teams. You're either part of the problem or part of the solution. You're either for us or against us. You're either on the red team or the blue team. + +The notion of giving software and source code away isn't really a radical concept. People give stuff away all the time. But when the process actually starts to work and folks start joining up, the stakes change. Suddenly it's not about random acts of kindness and isolated instances of charity--it's now a movement with emotional inertia and political heft. When things start working, people want to know what this group is going to do and how its actions are going to affect them. They want to know who gets the credit and who gets the blame. + +The questions about the politics of the free source world usually boil down to a simple dilemma: some think it's a communist utopia and others think it's a free market nirvana. Normally, the two ideas sit on the opposite ends of the spectrum looking at each other with contempt and disdain. In the strange world of software, ideas aren't so easy to place. Anyone can duplicate software as many times as they want and it's still useful. The communist notion of sharing equally is much easier to achieve in this realm than in the world of, say, grain, which requires hard work in the sun to make it grow. On the other hand, the ease of exchange also means that people are able to swap and trade versions of software with little overhead or restriction. The well-greased marketplace in the free marketer's dreams is also easy to create. The act of giving a disk to a friend could either be a bona fide example of universal brotherhood or the vigorously competitive act of trying to win the hearts and minds of a software consumer. Take your pick. + +The nature of software also mitigates many of the problems that naturally occur in each of these worlds. There is no scarcity, so there is no reason why sharing has to be so complicated or orchestrated from the central planning committees of the Soviets. People just give. On the other hand, the lack of scarcity also limits the differences between the rich and the poor. There's no reason why everyone can't have the same software as the rich because it's so easy to duplicate. Folks who are into economic competition for the ego gratification of having a bigger sport utility vehicle than everyone else on the street are going to be disappointed. + +To some extent, the politics of the free source movement are such a conundrum that people simply project their wishes onto it. John Gilmore told me over dinner, "Well, it depends. Eric Raymond is sort of a libertarian but Richard Stallman is sort of a communist. I guess it's both." The freedom makes it possible for people to mold the movement to be what they want. + +Raymond has no problem seeing his libertarian dreams acted out in the free software community. He looked at the various groups creating their own versions of free source code and saw a big bazaar where merchants competed to provide the best solutions to computer users everywhere. People wrote neat stuff and worked hard to make sure that others were happy. It was competition at its finest, and there was no money or costs of exchange to get in the way. + +Most people quickly become keenly aware of this competition. Each of the different teams creating distributions flags theirs as the best, the most up-to-date, the easiest to install, and the most plush. The licenses mean that each group is free to grab stuff from the other, and this ensures that no one builds an unstoppable lead like Microsoft did in the proprietary OS world. Sure, Red Hat has a large chunk of the mindshare and people think their brand name is synonymous with Linux, but anyone can grab their latest distribution and start making improvements on it. It takes little time at all. + +Stallman and his supposed communist impulse is a bit harder to characterize. He has made his peace with money and he's quick to insist that he's not a communist or an enemy of the capitalist state. He's perfectly happy when people charge for their work as programmers and he often does the same. But it's easy to see why people start to think he's something of a communist. One of his essays, which he insists is not strictly communist, is entitled "Why Software Should Not Have Owners." + +Some of his basic instincts sure look Marxist. The source code to a program often acts like the means of production, and this is why the capitalists running the businesses try to control it. Stallman wanted to place these means of production in the hands of everyone so people could be free to do what they wanted. While Stallman didn't rail against the effects of money, he rejected the principle that intellectual capital, the source code, should be controlled. + +Stallman stops well short of giving everything away to everyone. Copyrighting books is okay, he says, because it "restricts only the mass producers of copies. It did not take freedom away from readers of books. An ordinary reader, who did not own a printing press, could copy books only with pen and ink, and few readers were sued for that." In other words, the copyright rules in the age of printing only restricted the guy across town with a printing press who was trying to steal someone else's business. The emergence of the computer, however, changes everything. When people can copy freely, the shackles bind everyone. + +Communism, of course, is the big loser of the 20th century, and so it's not surprising that Stallman tries to put some distance between the Soviet and the GNU empires. He notes puckishly that the draconian effects of the copyright laws in America are sort of similar to life in the Soviet Union, "where every copying machine had a guard to prevent forbidden copying, and where individuals had to copy information secretly and pass it from hand to hand as samizdat." He notes, however, that "There is of course a difference: the motive for information control in the Soviet Union was political; in the U.S. the motive is profit. But it is the actions that affect us, not the motive. Any attempt to block the sharing of information, no matter why, leads to the same methods and the same harshness." + +Stallman has a point. The copyright rules restrict the ability of people to add, improve upon, or engage other people's work. The fair use rules that let a text author quote sections for comment don't really work in the software world, where it's pretty hard to copy anything but 100 percent of some source code. For programmers, the rules on source code can be pretty Soviet-like in practice. + +He's also correct that some companies would think nothing of locking up the world. A consortium of megalithic content companies like Disney and the other studios got the U.S. Congress to pass a law restricting tools for making copies. Ostensibly it only applied to computer programs and other software used to pirate movies or other software, but the effect could be chilling on the marketplace. The home video enthusiast who loves to edit the tapes of his child's birthday party needs many of the same functions as the content pirate. Cutting and pasting is cutting and pasting. The rules are already getting a bit more Soviet-like in America. + +But Stallman is right to distance himself from Soviet-style communism because there are few similarities. There's little central control in Stallman's empire. All Stallman can do to enforce the GNU General Public License is sue someone in court. He, like the Pope, has no great armies ready to keep people in line. None of the Linux companies have much power to force people to do anything. The GNU General Public License is like a vast disarmament treaty. Everyone is free to do what they want with the software, and there are no legal cudgels to stop them. The only way to violate the license is to publish the software and not release the source code. + +Many people who approach the free software world for the first time see only communism. Bob Metcalfe, an entrepreneur, has proved himself several times over by starting companies like 3Com and inventing the Ethernet. Yet he looked at the free software world and condemned it with a derisive essay entitled "Linux's 60's technology, open-sores ideology won't beat W2K, but what will?" + +Using the term "open sores" may be clever, but it belies a lack of understanding of some of the basic tenets. The bugs and problems in the software are open for everyone to see. Ideally, someone will fix them. Does he prefer the closed world of proprietary software where the bugs just magically appear? Does he prefer a hidden cancer to melanoma? + +The essay makes more confounding points equating Richard Stallman to Karl Marx for his writing and Linus Torvalds to Vladimir Lenin because of his aim to dominate the software world with his OS. For grins, he compares Eric Raymond to "Trotsky waiting for The People's ice pick" for no clear reason. Before this gets out of hand, he backpedals a bit and claims, "OK, communism is too harsh on Linux. Lenin too harsh on Torvalds [sic]."Then he sets off comparing the world of open source to the tree-hugging, back-to-the-earth movement. + +Of course, it's easy to see how the open source world is much different from the Soviet-style world of communism. That experiment failed because it placed the good of the many above the freedom of the individual. It was a dictatorship that did not shirk from state-sponsored terrorism or pervasive spying. It was no surprise, for instance, to discover that East German athletes were doped with performance-enhancing drugs without their knowledge. It was for the glory of Lenin or Marx or Stalin, or whoever held the reins. Does the country need someone to live in Siberia to mine for minerals? Does the country need land for vast collective farms? The state makes the call and people go. + +The Soviet Union didn't really fail because it clung too deeply to the notion that no one should own property. It failed when it tried to enforce this by denying people the fruits of their labor. If someone wanted to build something neat, useful, or inventive, they had better do it for the glory of the Soviet state. That turned the place into a big cesspool of inactivity because everyone's hard work was immediately stolen away from them. + +The free software world is quite different from that world. The GPL and the BSD licenses don't strip away someone's freedom and subjugate them to the state, it gives them the source code and a compiler to use with it. Yes, the GPL does restrict the freedom of people to take the free source code and sell their own proprietary additions, but this isn't the same as moving them to Siberia. + +The Free Software State doesn't steal the fruits of someone's labor away from them. Once you develop the code, you can still use it. The GPL doesn't mean that only Torvalds can sit around his dacha and compile the code. You get to use it, too. In fact, one of the reasons that people cite for contributing to GPL projects is the legal assurance that the enhancements will never be taken away from them. The source will always remain open and accessible. + +Metcalfe's point is that communism didn't work, so the free software world will fail, too. He makes his point a bit clearer when he starts comparing the free software folks to tree-hugging environmentalists. + +"How about Linux as organic software grown in utopia by spiritualists?" he wonders. "If North America actually went back to the earth, close to 250 million people would die of starvation before you could say agribusiness. When they bring organic fruit to market, you pay extra for small apples with open sores--the Open Sores Movement." + +The problem with this analogy is that no one is starving with open source software. Data is not a physical good. Pesticides and fertilizers can boost crop yields, but that doesn't matter with software. If anything, free software ends up in even more people's hands than proprietary software. Everyone in the free software world has a copy of the image editing tool, GIMP, but only the richest Americans have a copy of the very expensive Adobe Photoshop. + +Of course, he has half a point about the polish of open source code. The programmers often spend more time adding neat features they like instead of making the code as accessible as possible. The tools are often designed for programmers by programmers. There isn't much of a quality assurance and human factors team trying to get them to engineer it so the other 95 percent of humanity can use it. + +But this problem is going away. Companies like Red Hat and Caldera have a profit motive in making the software accessible to all. The tools look nicer, and they are often just as presentable as the tools from the proprietary firms. The programmers are also getting more sensitive to these problems. In the past, the free software world was sort of an alternative Eden where programmers went to escape from the rest of programmatically challenged society. Now the world is open to free software and the programmers are more open to taking everyone's needs into account. + +The problem with all of Metcalfe's analogies is that he assumes the same rules that control the world of physical goods also govern the world of ideas. The software industry likes to pretend that this isn't true by packaging the software in big, empty boxes that look good on shelves. Swapping ideas is easy and costs little. Of course, the Soviet Union worried about the swapping of ideas and tried to control the press and all forms of expression. The free software movement is the exact opposite of this. + +In fact, it is much easier to see the free software world as the libertarian ideal of strong competition and personal freedom if you remember that it exists in the realm of ideas. The landscape is similar to universities, which usually boast that they're just big melting pots where the marketplace of ideas stays open all night. The best ideas gradually push out the worst ones and society gradually moves toward a total understanding of the world. + +Perhaps it's just not fair to characterize the politics of the open source or free software world at all. Terms like communism, libertarianism, liberalism, and Marxism all come from an age when large portions of society did not have easy access to ample supplies of food and housing. + +Data and information are not limited goods that can only be consumed by a limited group. One person or one million people can read a computer file and the marginal costs aren't very different. Sharing is cheap, so it makes sense to use it to all of its advantages. We're just learning how to use the low cost of widespread cooperation. + +Perhaps it's better to concentrate on the real political battles that rage inside the open source code community. It may be better to see the battle as one of GPL versus BSD instead of communist versus libertarian. The license debate is tuned to the Internet world. It sets out the debate in terms the computer user can understand. + +1~ Charity + +The open source movement is filled with people who analyze software, look for bugs, and search for fixes. These quiet workhorses are the foundation of the movement's success. One member of this army is David Baron, an undergraduate student who started out at Harvard in the fall of 1998 and found, like most students, that he had a bit of spare time. Some students turn to theater, some to the newspaper, some to carousing, some to athletic teams, some to drinking, and most choose one or more of the above. A few students search out some charitable work for their spare time and volunteer at a homeless shelter or hospital. Law students love to work at the free legal clinic for the poor. Baron, however, is a bit of a nerd in all of the good senses of the word. He's been working on cleaning up Netscape's open source browser project known as Mozilla, and he thinks it's a great act of charity. + +Baron spends his spare time poking around the Mozilla layout engine responsible for arranging the graphics, text, form slots, buttons, and whatnot in a consistent way. Graphic designers want all web browsers on the Net to behave in a consistent way and they've been agitating to try and get the browser companies (Netscape, Microsoft, iCab, WebTV, and Opera) to adhere to a set of standards developed by the W3C, the World Wide Web Consortium based at MIT. These standards spell out exactly how the browsers are supposed to handle complicated layout instructions like cascading style sheets. + +Baron looked at these standards and thought they were a good idea. If all web browsers handled content in the same way, then little buttons saying "Best Viewed with Microsoft IE" or "Best Viewed by Netscape" +would disappear. The browser companies would be able to compete on features, not on their ability to display weirder web pages. It would cut the web designers out of the battle between Microsoft and Netscape. + +The standards also help users, especially users with different needs. He told me, "Standards (particularly CSS) encourage accessibility for users with all sorts of disabilities because they allow authors to use HTML as it was originally intended--as a structural markup language that can be interpreted by browsers that display things in nonvisual media or in very large fonts for users with poor vision. Changing the HTML on the web back to structural markup will also allow these browsers to produce sensible output." + +Handling standards like this is always a bit of a political problem for companies. Every developer tries to stick their fingers in the wind and see which standards will be important and which ones will fall by the wayside. Microsoft, Netscape, iCab, WebTV, and Opera have all been wondering about the cascading style sheets because they're sort of a pain in the neck. Ideally, the graphics designers will be able to come up with graphics rules for a set of web pages and they'll be applied using the rules set out by the reader. + +CSS is not about "total control by the author of the page," says Baron. "The basic idea of the cascade is that user preferences (through the browser's UI or possibly through a user CSS style sheet) and author suggestions (contained in CSS style sheets) combine to produce the formatting of the page." + +A modern catalog conglomerate, for instance, may have two branches. One would be aimed at middle-aged men who dote on their cars by giving them endless wax jobs and cleaning them forever. Another might be aimed at young mothers who dote on their children, in part by keeping the home as clean as could be. Normally, the catalog company would use different designers to create very different-looking catalogs. One would come with retro, hard-edged graphics covered with racing stripes, and the other with floral prints. What happens when these catalogs head to the web? Normally two designers would give two different websites two different looks. + +What if there is one cleaning product, say a car wheel cleaner, that appears in both catalogs? In the old days before cascading style sheets, both designers would have to do up each page separately. A well-designed system of cascading style sheets would let one web page for the product display correctly on both sites. It would pick up either the floral prints or the racing stripes automatically when either site called it up. + +These standards are notoriously difficult to enforce. Armies around the world dream of turning out perfect privates that can be inserted into any conflict in any platoon without any retraining. Newspapers dream of having interchangeable reporters who can cover the White House or a cricket match in India. It's no wonder that the web industry wants the same thing. + +Baron told me, "I got interested in Mozilla because I'm interested in web standards." He noticed that a group known as the Web Standards Project was running a political campaign to pressure the browser companies to lay out pages the same way (www.webstandards.org). + +"A group of developers got together and said, 'The browsers aren't supporting the standards' and this makes it impossible to create pages," Baron explained. "If every browser supports the standards in a different way, then you have to design a different version of the site for each browser. Or, more realistically, web designers resort to hacks that make the page legible in all the 'major' browsers but not accessible to people with disabilities or people with older computers." + +Of course, it's one thing for a web designer or a web master to take up this call. Baron, however, was just a college freshman who framed this as volunteer work. When he happened upon the Web Standards Project, he heard their message and saw an itch that he wanted to scratch. + +"I want to see the standards supported correctly. Someone's got to do it," he told me. "I might as well be doing this instead of playing around and looking at websites all day. A lot of people do volunteer work, but not a lot of people get to do volunteer work at this level. It uses what I know pretty well. A lot of students who are very smart end up doing volunteer work which doesn't use their skills. When you can do volunteer work that uses what you know, it's even better." + +So Baron would download the latest versions of the Mozilla layout engine known as Gecko and play with web pages. He would create weird web pages with strange style sheets, load them up, and watch where they broke. When things went wrong, he would write up detailed bug reports and mail them off to the folks doing the coding. He was part of a quality control team that included some Netscape employees and a wide variety of other users on the Net. + +This community involvement was what Netscape wanted when it created Mozilla. They hoped that more people would take it upon themselves to test out the code and at least make complaints when things were going wrong. One hacker named James Clark, who isn't related to the founder of Netscape with the same name, actually kicked in a complete XML parser, a tool for taking apart the latest superset of HTML that is capturing the attention of software and web designers. + +Baron is one of the few folks I met while writing this book who frames his work on an open source project as charity. Most devotees get into the projects because they offer them the freedom to mess with the source code. Most also cite the practical strengths of open source, like the relatively quick bug fixes and the stability of well-run projects. Most people like to distance themselves from the more political firebrands of the free software movement like Richard Stallman by pointing out that they're not really in it to bring about the second coming of the Communist Revolution. Few suggest that their work is sort of a gift of their time that might make the world a better place. Few compare their work to the folks cleaning up homeless shelters or hospitals. Most don't disagree when it is pointed out to them, but most free software hackers don't roll out the charitable rhetoric to explain what they're up to. + +This may just be a class difference. Baron is a sophomore, as this is written, at Harvard and Harvard is, by definition, a finishing school for the upper crust. Even the vast sea of kids from middle-class families and public schools end up talking and acting as if they came out of Choate or Exeter by the end of their time at Harvard. They pick up the Kennedyesque noblesse oblige that somehow commands the rich and fortunate to be out helping the poor with very public acts of assistance. It just sort of seeps into all of those Harvard kids. + +Most of the free software members, on the other hand, are kind of outcasts. The hackers come from all parts of the globe and from all corners of the social hierarchy, but few of them are from the beautiful people who glide through life on golden rails. The programmers usually have their heads in strange, obtuse mathematical clouds instead of the overstuffed clouds of Olympus. They're concerned with building neat software and spinning up wonderful abstract structures that interlock in endlessly repeating, elegant patterns. If they were interested in power or social prestige, they wouldn't be spending their nights in front of a terminal waiting for some code to compile. + +But if the free software movement doesn't use the charitable card very often, it doesn't mean that the work is too different from that of the homeless shelters. In fact, so little money changes hands that there are not many reasons for people to take their donations off on their taxes. Donations of time don't count. Maybe a few companies could write it off their books, but that's about it. + +In fact, Baron is right that work like his can make a difference for people. Software is a growing part of the cost of a computer today. In low-end PCs, the Microsoft OS may cost more than the processor or the memory. A free OS with a free web browser that works correctly can help the thousands of schools, homeless shelters, hospitals, and recreation centers get on the web at a cheaper cost. + +The free software charity is often a bit cleaner. Bill Gates and many of the other Microsoft millionaires aren't shy about giving away real money to schools and other needy organizations. Melinda Gates, Bill's wife, runs a charitable foundation that is very generous. In 1999, for instance, the foundation made a very real gift of tuition money for minority students. The foundation has also given millions of dollars to help fund medical research throughout the globe. + +Still, at other times, there has been a sly edge to the Gates benevolence. In some cases, the company gives away millions of dollars in Microsoft software. This helps get kids used to Microsoft products and acts like subtle advertising. Of course, there's nothing new about this kind of charity. Most corporations insist that they receive some publicity for their giving. It's how they justify the benevolence to their shareholders. + +The value of giving copies of software away is a difficult act to measure. One million copies of Windows 95 might retail for about $100 million, but the cost to Microsoft is significantly lower. CD-ROMs cost less than one dollar to duplicate, and many schools probably received one CD-ROM for all of their machines. Giving the users support is an important cost, but it can be controlled and limited by restricting the number of employees dedicated to particular phone lines. Determining the value of all of the benevolence must be a tough job for the tax accountants. How Microsoft chose to account for its donations is a private matter between Gates, the Internal Revenue Service, and his God. + +Consider the example of an imaginary proprietary software company called SoftSoft that gives away one million copies of its $50 WidgetWare product to schools and charities across the United States. This is, in many ways, generous because SoftSoft only sells 500,000 copies a year, giving them gross revenues of $25 million. + +If SoftSoft values the gift at the full market value, they have a deduction of $50 million, which clearly puts them well in the red and beyond the reach of taxes for the year. They can probably carry the loss forward and wipe out next year's earnings, too. + +The accountants may not choose to be so adventurous. The IRS might insist that they deduct the cost of the goods given, not their potentially inflated market price. Imagine that the company's cost for developing WidgetWare came to $21 million. If there were no gift, they would have a nice profit of $4 million. SoftSoft could split the development costs of $21 million between all of the 1.5 million units that are shipped. Instead of deducting the market value of the software, it would only deduct the costs allocated to it. Still, that means they get a $14 million deduction, which is still far from shabby. + +More conservative companies may come up with smaller deductions based upon the cost of duplicating the additional copies and the cost of supporting the schools and charities. Strict accounting measures would be the most honest, but it's hard to know what companies do and what they should do. + +Free software, of course, avoids all that paperwork and accounting. The software costs nothing, so giving it away generates no deduction. There's no need for complicated cost accounting or great press releases. It just sits on the web server and people download it. + +Of course, it's possible to start counting up downloads and doing some multiplication to come up with outrageous numbers. Windows NT can sell for between $200 and $1,000. There are about 3.7 million web servers running Apache, according to the latest Netcraft poll. If 1 percent qualify as charitable sites, then 37,000 are served by Apache. Of course, not all sites sit on separate machines. To correct for this, assume that each server hosts 10 machines and there are only 3,700 machines using Apache. That's still about $3.7 million in donations. + +But numbers like this can't really capture the depth of the gift. Linus Torvalds always likes to say that he started writing Linux because he couldn't afford a decent OS for his machine so he could do some experiments. Who knows how many kids, grown-ups, and even retired people are hacking Linux now and doing some sophisticated computer science experiments because they can? How do we count this beneficence? + +Free software essentially removes the red tape and the institutional character of charity. There are no boards. There is no counting of gifts. There's no fawning or flattering. There are no new J. Henry P. Plutocrat Wings for the Franklin P. Moneysucker Museum of Philanthropy. It's just a pure gift with no overhead. + +There is also a smooth efficiency to the world of free software charity. My economics professor used to joke that gifts were just very inefficient. Grandmas always bought unhip sweaters for their grandkids. Left on their own, children would give candy and stuffed animals to their parents on their birthdays and Christmas. All of these bad choices must be returned or thrown away, ruining the efficiency of the economy. The professor concluded by saying, "So, guys, when you go out on the date, don't bother with the flowers. Forget about the jewelry. Just give her cash." + +Free source software, of course, doesn't fit into many of the standard models of economic theory. Giving the stuff away doesn't cost much money, and accepting it often requires a bit of work. The old rules of gift giving and charity don't really apply. + +Imagine that some grandmother wrote some complicated software for computing the patterns for knitting sweaters. Some probably have. If they give the source code away, it ends up in the vast pool of free source code and other knitters may find it. It might not help any grandchildren, at least not for 20 or 30 years, but it will be moving to the place where it can do the most good with as little friction as possible. The software hacked by the kids, on the other hand, would flow from child to child without reaching the parents. The software tools for generating dumb jokes and sorting bubble gum cards would make a generation of kids happy, and they would be able to exchange it without their parents or grandparents getting in the way. + +The inefficiencies of gift-giving can often affect charities, which have less freedom to be picky than grandchildren. Charities can't look a gift horse in the mouth. If a company wants to give a women's shelter 1,000 new men's raincoats, the shelter will probably take them. Refusing them can offend potential contributors who might give them something of value in the next quarter. + +Free source code has none of these inefficiencies. Websites like Slashdot, Freshmeat, Linux Weekly News, LinuxWorld, KernelTraffic, and hundreds of other Linux or project-specific portals do a great job moving the software to the people who can use its value. People write the code and then other folks discover the value in it. Bad or unneeded code isn't foisted on anyone. + +Free software also avoids being painted as a cynical tax scheme. It is not uncommon for drug manufacturers to donate some surplus pills to disaster relief operations. In some cases, the manufacturers clear their shelves of pills that are about to expire and thus about to be destroyed. They take a liability and turn it into a tax-deductible asset. This may be a good idea when the drugs are needed, but they are often superfluous. In many cases, the drugs just end up in a landfill. The relief organizations accept millions of dollars in drugs to get a few thousand dollars' +worth of ones they really need. + +2~ Charitable Open Source Organizations + +Of course, there are some open source charities. Richard Stallman's Free Software Foundation is a tax-exempt 501(c)(3) charity that raises money and solicits tax-deductible donations. This money is used to pay for computers, overhead, and the salaries of young programmers who have great ideas for free software. The Debian Project also has a charitable arm known as Software in the Public Interest that raises money and computer equipment to support the creation of more free software. + +These organizations are certainly part of the world of tax deductions, fund-raisers, and the charity-industrial complex. The Free Software Foundation, for instance, notes that you can arrange for all or part of your gift to the United Way to go to the Foundation. + +But there are differences, too. Stallman, for instance, is proud of the fact that he accepts no salary or travel reimbursement from the Free Software Foundation. He works 2 months a year to support himself and then donates the other 10 months a year to raising money to support other programmers to work on Foundation projects. + +Their budgets are pretty manageable as well. Perens notes that Debian's budget is about $10,000 a year, and this is spent largely on distributing the software. Servers that support plenty of traffic cost a fair amount of money, but the group does get donations of hardware and bandwidth. The group also presses a large number of CD-ROMs with the software. + +The groups also make a point of insisting that good code is more valuable than money. The Free Software Foundation, for instance, lists projects that need work next to its call for money. Volunteers are needed to write documentation, test software, organize the office, and also write more code. + +Jordan Hubbard, the director of the FreeBSD project, says that money is not always the best gift. "I'll take people over six-digit sums of donations almost any day," he says, and explains that FreeBSD is encouraging companies to donate some of the spare time of its employees. He suggests that companies assign a worker to the FreeBSD project for a month or two if there is time to spare. + +"Employees also give us a window into what that company's needs are. All of those co-opted employees bring back the needs of their jobsite. Those are really valuable working relationships," he continues. + +Hubbard has also found that money is often not the best motivator. Hardware, it turns out, often works well at extracting work out of programmers. He likes to ship a programmer one of the newest peripherals like a DVD drive or a joystick and ask him to write a driver for the technology in exchange. "It's so much more cost-effective to buy someone a $500 piece of hardware, which in turn motivates him to donate thousands of dollars worth of work, something we probably couldn't pay for anyway," he says. + +Money is still important, however, to take care of all the jobs that can't be accomplished by piquing someone's curiosity. "The area we need the most contributions for are infrastructure. Secretarial things are no fun to do and you don't want to make volunteers do it," he says. + +All of these charitable organizations are bound to grow in the next several years as the free software movement becomes more sophisticated. In some cases it will be because the hackers who loved playing with computers will discover that the tax system is just another pile of code filled with bugs looking to be hacked. In most cases, though, I think it will be because large companies with their sophisticated tax attorneys will become interested. I would not be surprised if a future version of this book includes a very cynical treatment of the tax habits of some open source organizations. Once an idea reaches a critical mass, it is impossible to shield it from the forces of minor and major corruption. + +2~ Gifts as a Cultural Imperative + +Marcel Mauss was an anthropologist who studied the tribes of the northwestern corner of North America. His book Gift: The Form and Reason for Exchange in Archaic Societies explained how the tribes like the Chinook, the Tlinget, and the Kwakiutl would spend the months of the fall giving and going to huge feasts. Each year, the members in the tribe would take the bounty of the harvest and throw a feast for their friends. The folks who attended might have a good time, but they were then obligated to give a feast of equal or greater value next year. + +Many anthropologists of the free software world like to draw parallels between these feasts, known as potlatches in one tribe, and the free-for-all world of free source software. The hackers are giving away source code in much the same way that the tribe members gave away salmon or deer meat. + +The comparison does offer some insight into life in the free software community. Some conventions like LinuxExpo and the hundreds of install-fests are sort of like parties. One company at a LinuxExpo was serving beer in its booth to attract attention. Of course, Netscape celebrated its decision to launch the Mozilla project with a big party. They then threw another one at the project's first birthday. + +But the giving goes beyond the parties and the conferences. Giving great software packages creates social standing in much the same way that giving a lavish feast will establish you as a major member of the tribe. There is a sort of pecking order, and the coders of great systems like Perl or Linux are near the top. The folks at the top of the pyramid often have better luck calling on other programmers for help, making it possible for them to get their jobs done a little better. Many managers justify letting their employees contribute to the free software community because they build up a social network that they can tap to finish their official jobs. + +But there's a difference between tribal potlatch and free software. The potlatch feasts built very strong individual bonds between people in the same tribe who knew each other and worked together. The gifts flowed between people who were part of each other's small community. + +The free source world, on the other hand, is a big free-for-all in both senses of the phrase. The code circulates for everyone to grab, and only those who need it dig in. There's no great connection between programmer and user. People grab software and take it without really knowing to whom they owe any debt. I only know a few of the big names who wrote the code running the Linux box on my desk, and I know that there are thousands of people who also contributed. It would be impossible for me to pay back any of these people because it's hard to keep them straight. + +This vast mass of contributors often negates the value and prestige that comes from writing neat code. Since no one can keep track of it all, people tend to treat all requests from unknown people equally. The free source world tends to have many equals, just because there's no hierarchy to make it easy for us to suss out each other's place. Corporations have titles like executive vice president and super executive vice president. The military labels people as private, sergeant, or major. There are no guideposts in the free software world. + +Still, good contributions pay off in good reputations. A bug fix here and a bug fix there might not build a name, but after a year or two they pay off. A good reputation opens doors, wins jobs, creates friendships, and makes it possible to interest people in new projects. + +The free source world is also a strange mirror image of the hierarchies that emerge after a season of tribal potlatch ceremonies. In the tribes, those who receive great gifts are required to return the favor with even greater ones. So the skillful hunters and gatherers give good gifts and receive something better in return. The rich get richer by giving away their bounty. The less skillful end up at the bottom of the list. The free source world, on the other hand, spreads its riches out to everyone. There are many modest programmers who enjoy the source code of the great programmers, and there may be billions of non-programmers who also tag along. Many major websites run on free OSs alone. Who knows which cheap Internet tools will come along in the future? The poor get lifted along at no great cost to the economy. The charity is broadcast to everyone, not narrowcast to a few. + +The efficiency goes deeper. There's a whole class of products for the home that are much fancier and sophisticated than what people need. One company near me sells perfectly usable nonstick pans for $2.95. A fancy department store sells hefty, industrial-grade pans that do the same thing for more than $100. Why? They make great gifts for people getting married. This wedding-industrial complex adds needless accoutrements, doodads, and schmaltz just to give products enough caché to make them great gifts. + +The free source world, on the other hand, has no real incentive to generate phony, chrome-plated glitz to make its gifts acceptable or worthy enough of giving. People give away what they write for themselves, and they tend to write what they need. The result is a very efficient, usable collection of software that helps real people solve real problems. The inefficiency of the wedding-industrial complex, the Father's Day-industrial complex, the Christmas-industrial complex, and their need to create acceptable gifts are gone. + +Of course, there's also a certain element of selfishness to the charity. The social prestige that comes from writing good free software is worth a fair amount in the job market. People like to list accomplishments like "wrote driver" or "contributed code to Linux Kernel 2.2" on their résumé. Giving to the right project is a badge of honor because serious folks doing serious work embraced the gift. That's often more valuable and more telling than a plaque or an award from a traditional boss. + +Rob Newberry is a programmer at Group Logic, a small software house in northern Virginia where I once did some consulting. His official title is "Director of Fajita Technology," and he is sometimes known as "The Dude," a reference to a character in the movie /{The Big Lebowski}/. Technically, his job is building and supporting their products, which are used to automate the prepress industry. One of their products, known as Mass Transit, will move files over the Internet and execute a number of automated programs to them before moving them on. Printers use them to take in new jobs, massage the data to their needs by performing tasks like color separation, and then send the jobs to the presses. This work requires great understanding of the various network protocols like FTP of NFS. + +Newberry is also a Linux fan. He reads the Kernel list but rarely contributes much to it. He runs various versions of Linux around the house, and none of them were working as well as he wanted with his Macintosh. So he poked around in the software, fixed it, and sent his code off to Alan Cox, who watches over the part of the kernel where his fixes belonged. + +"I contributed some changes to the Appletalk stack that's in the Linux Kernel that make it easier for a Linux machine to offer dial-in services for Macintosh users," he said in an article published in Salon. +"As it stands, Mac users have always been able to dial into a Linux box and use IP protocols, but if they wanted to use Appletalk over PPP, the support wasn't really there." + +Newberry, of course, is doing all of this on his own time because he enjoys it. But his boss, Derick Naef, still thinks it's pretty cool that he's spending some of his programming energy on a project that won't add anything immediately to the bottom line. + +"He's plugged into that community and mailing lists a lot more," explains Naef. "There are other people here who are, too, but there are all these tools out there in the open source world. There's code out there that can be incorporated into our computer projects. It can cut your development costs if you can find stuff you can use." + +Of course, all of this justification and rationalization aren't the main reason why Newberry spends so much of his time hacking on Linux. Sure, it may help his company's bottom line. Sure, it might beef up his résumé by letting him brag that he got some code in the Linux kernel. But he also sees this as a bit of charity. + +"I get a certain amount of satisfaction from the work . . . but I get a certain amount of satisfaction out of helping people. Improving Linux and especially its integration with Macs has been a pet project of mine for some time," he says. Still, he sums up his real motivation by saying, "I write software because I just love doing it." Perhaps we're just lucky that so many people love writing open source software and giving it away. + +1~ Love + +It's not hard to find bad stories about people who write good code. One person at a Linux conference told me, "The strange thing about Linus Torvalds is that he hasn't really offended everyone yet. All of the other leaders have managed to piss off someone at one time or another. It's hard to find someone who isn't hated by someone else." While he meant it as a compliment for Torvalds, he sounded as if he wouldn't be surprised if Torvalds did a snotty, selfish, petulant thing. It would just be par for the course. + +There are thousands of examples of why people in the open source community hate each other and there are millions of examples of why they annoy each other. The group is filled with many strong-minded, independent individuals who aren't afraid to express their opinions. Flame wars spring up again and again as people try to decide technical questions like whether it makes more sense to use long integers or floating point numbers to hold a person's wealth in dollars. + +Of course, hate is really too strong a word. If you manage to pin down some of the people and ask them, point blank, whether they really hate someone, they'll say, "No." They really just don't like a few of that person's technical decisions. These points of friction fester and turn into what might more commonly be called hate. + +These technical debates are terrible tar pits for the community, and they eat up the energy. The debates turn frustrating because they have the strange distinction of being both technically important and utterly trivial. Everyone would like to just sail through life and not worry about tiny details like the type of integer used in a calculation. There are millions of these decisions that take up time that might be better spent imagining grand dreams of a seamless information noosphere that provides the wisdom of the ages in a simple graphical interface. But every programmer learns that it's the details that count. NASA lost a spacecraft when some programmer used English units instead of the metric system. So the work needs to get done. + +Occasionally, the fights get interesting. Eric Raymond and Bruce Perens are both great contributors to the open source movement. In fact, both worked together to try to define the meaning of the term. Perens worked with the community that creates the Debian distribution of Linux to come up with a definition of what was acceptable for the community. This definition morphed into a more official version used by the Open Source Initiative. When they got a definition they liked, they published it and tried to trademark the term "open source" in order to make sure it was applied with some consistency. It should be no surprise that all of that hard work brought them farther apart. + +In early April 1999, soon after Apple Computer joined the free source world by releasing some of the source code to their operating system, Raymond and Perens found themselves at each other's throats. Raymond had worked closely with Apple on developing their license and blessed it soon after it emerged. Apple was so pleased that it put Raymond's endorsement on their web page. The decision was a big coup for the open source movement and strong proof that corporations were embracing the movement. Big executives from big companies like Apple were knocking on the open source movement's door. Raymond thought the victory would bring more attention to the cause. + +Others thought Raymond had given away the farm. Perens and many others looked at the license and spotted a small clause that seemed dangerous. The license for their open source code could be withdrawn at a moment's notice. Someone pointed out that it would be a real bummer to do lots of work on Apple's system and then find out that some neb-nosed lawyer at Apple could just pull the license. No one wanted to take that chance. Flame wars erupted and Perens started publicly disagreeing with Raymond. To Perens, the Apple license just wasn't open enough to be called "open source." + +Raymond didn't take this too well. He had worked hard to build a strong coalition. He had worked hard to convince corporations that open source was much more than a way for teenagers to experiment with communism while they were living on their parents' dime. He wanted the open source world to be a smoothly running, suave machine that gracefully welcomed Apple into its fold. Now his buddy Bruce Perens was effectively aping Lloyd Bentsen's famous putdown of Dan Quayle: "I've known open source; I've worked with open source; and Eric, this license isn't open source." His whole announcement was supposed to unroll with the clockwork precision of great corporate PR, and now someone had lobbed a grenade. + +Raymond fired back a terse e-mail that said, "If you ever again behave like that kind of disruptive asshole in public, insult me, and jeopardize the interests of our entire tribe, I'll take it just as personally and I will find a way to make you regret it. Watch your step." + +This note rattled Perens, so he started sending copies around the Net. Then he got serious and called the police. Officially, he was publicizing the disagreement to preserve his health because Raymond is quite vocal about his support for the second amendment. Therefore the phrase "Watch your step" should be taken as a veiled threat of violence. + +Perens defended his decision to call the police and told me afterward, +"When I don't like something, I write about it. Well, gee, maybe Eric was threatening to just write about me. In the signature at the bottom of the page was a Thomas Jefferson quote, which claimed the pistol was the best form of exercise. The next day, Perens decided that he was overreacting a bit and posted a new note: "Eric says he only meant to threaten me with 'defamation of character,' not with any kind of violence. Thus, I think I'll just let this issue drop now." + +When I asked him about the matter several months later after tempers had cooled, Raymond said that the disagreement began several months before the Apple event when Perens and Raymond clashed over whether the book publisher O'Reilly should be allowed to use the term "open source" in the name of their conference. "He was *flaming*, and not the initiative itself but a critical supporter," says Raymond. + +"Sometime back I had to accept Bruce's resignation from the OSI because he was flaming public allies on a mailing list. If you're going to go public, you can't run your mouth like a rabid attack dog. When the APSL [Apple Public Source License] came along, he convinced people that everybody should go mug Eric and the OSI," Raymond said. It caused more grief. + +Perens, for his part, said, "I was disappointed in Eric because certainly open source is about freedom of speech. He should be able to tolerate a dissenting voice. The entire argument was about my not deferring to his leadership. He felt that my dissent was damaging. The actual result was that Apple took my criticism seriously and took all of the suggestions." + +Raymond is still critical. He says, "Apple was more diplomatic to Bruce in public than they should have been. The truth is that his meddling got the people inside Apple who were pushing open source into considerable political trouble, and they considered him a disruptive asshole. Their bosses wanted to know, quite reasonably, why Apple should bother trying to do an open source license if all it meant was that they'd be attacked by every flake case with an agenda. By undermining OSI's status as trusted representatives of the whole community, Bruce nearly scuttled the whole process." + +For now, the two work apart. Perens says he'll make up with Raymond, but doesn't see it happening too soon. Raymond is happy to focus on the future of open source and write more analysis of the movement. They've been separated, and the tempers are cool. + +Giving away software seems like an entirely altruistic act. Writing code is hard work, and simply casting it onto the net with no restrictions is a pretty nice gift outright, especially if the code took months or years to write. This image of selflessness is so strong that many people assume that the free software world is inhabited by saints who are constantly doing nice things for each other. It seems like a big love-in. + +But love is more than a many splendored thing. It's a strange commodity that binds us together emotionally in ways that run deeper than placid pools reflecting starry eyes. After the flush of infatuation, strong love lasts if and only if it answers everyone's needs. The hippie culture of free love lasted only a few years, but the institution of marriage continues to live on despite the battle scars and wounds that are almost mortal. Half may fail, but half succeed. + +The free software community also flourishes by creating a strong, transcendent version of love and binding it with a legal document that sets out the rules of the compact. Stallman wrote his first copyleft virus more than 15 years before this book began, and the movement is just beginning to gain real strength. The free software world isn't just a groovy love nest, it's a good example of how strong fences, freedom, and mutual respect can build strong relationships. + +The important thing to realize is that free software people aren't any closer to being saints than the folks in the proprietary software companies. They're just as given to emotion, greed, and the lust for power. It's just that the free software rules tend to restrain their worst instincts and prevent them from acting upon them. + +The rules are often quite necessary. E-mail and the news services give people the ability to vent their anger quickly. Many of the programmers are very proficient writers, so they can tear each other apart with verbal scalpels. The free source world is cut up into hundreds if not thousands of political camps and many dislike each other immensely. One group begged with me not to ask them questions about another group because just hearing someone's name brought up terrible memories of pain and discord. + +Despite these quick-raging arguments, despite the powerful disagreements, despite the personal animosities, the principles of the public licenses keep everything running smoothly. The people are just as human as the rats running around in the maze of the proprietary software business, but the license keeps them in line. + +The various public licenses counter human behavior in two key ways. First, they encourage debate by making everyone a principal in the project. Everyone has a right to read, change, and of course make comments about the software. Making everything available opens the doors for discussion, and discussion usually leads to arguments. + +But when the arguments come to blows, as they often do, the second effect of free source licenses kicks in and moderates the fallout by treating everyone equally. If Bob and John don't like each other, then there's still nothing they can do to stop each other from working on the project. The code is freely available to all and shutting off the distribution to your enemy just isn't allowed. You can't shut out anyone, even someone you hate. + +Anyone familiar with corporate politics should immediately see the difference. Keeping rivals in the dark is just standard practice in a corporation. Information is a powerful commodity, and folks competing for the same budget will use it to the best of their ability. Bosses often move to keep their workers locked away from other groups to keep some control over the flow of information. + +Retribution is also common in the corporate world. Many managers quickly develop enemies in the ranks, and the groups constantly spend time sabotaging projects. Requests will be answered quickly or slowly depending on who makes them. Work will be done or put off depending on which division is asking for it to be done. Managers will often complain that their job is keeping their underlings from killing each other and then turn around and start battling the other managers at their level. + +The people in the free source world aren't any nicer than the people in the corporate cubicle farms, but their powers of secrecy and retribution are severely limited. The GNU General Public License requires that anyone who makes changes to a program and then releases the program must also release the source code to the world. No shutting off your enemies allowed. + +This effect could be called a number of different things. It isn't much different from the mutual disarmament treaties signed by nations. Athletic teams strive for this sort of pure focus when they hire referees to make the tough calls and keep everyone playing by the same rules. The government sometimes tries to enforce some discipline in the free market through regulation. + +Now, compare this disarmament with a story about the poor folks who stayed behind at the Hotmail website after Microsoft bought them. It's really just one of a million stories about corporate politics. The workers at Hotmail went from being supreme lords of their Hotmail domain to soldiers in the Microsoft army. Their decisions needed to further Microsoft's relentless growth in wealth, not the good of the Hotmail site. This probably didn't really bother the Hotmail people as much as the fact that the people at Microsoft couldn't decide what they wanted from Hotmail. + +Robert X. Cringely described the situation in an article in PBS Online, and he quoted one Hotmail worker as saying, "They send a new top-level group down to see us every week, yet it really means nothing. The plan is constantly changing. Today Hotmail is primarily a way of shoveling new users into the MSN portal. We had for a short time a feature called Centerpoint for communicating directly with our users, but that was killed as a possible competitor with the MSN portal. No new features could be added because the Outlook Express team saw us as competition and sabotaged everything." + +Cringely explained the corporate friction and gridlock this way: + +_1 "What Hotmail learned is that at Microsoft almost anyone can say 'no,' but hardly anyone can say 'yes.' The way it specifically works at Microsoft is that everyone says 'no' to anyone below them on the organizational structure or on the same level, and 'yes' to anyone above. Since the vertical lines of authority are narrow this means people tend to agree only with their bosses and their boss's boss and try to kick and gouge everyone else." + +The free software world, of course, removes these barriers. If the Hotmail folks had joined the Linux team instead of Microsoft, they would be free to do whatever they wanted with their website even if it annoyed Linus Torvalds, Richard Stallman, and the pope. They wouldn't be rich, but there's always a price. + +Using the word "love" is a bit dangerous because the word manages to include the head-over-heels infatuation of teenagers and the affection people feel for a new car or a restaurant's food. The love that's embodied by the GPL, on the other hand, isn't anywhere near as much fun and it isn't particularly noteworthy. It just encompasses the mutual responsibility and respect that mature folks occasionally feel for each other. It's St. Paul's version of unconditional, everlasting love, not the pangs of desire that kept St. Augustine up late in his youth. + +Anyone who has spent time in the trenches in a corporate cubicle farm knows how wasteful the battles between groups and divisions can be. While the competition can sometimes produce healthy rivalries, it often just promotes discord. Any veteran of these wars should see the immediate value of disarmament treaties like the GPL. They permit healthy rivalries to continue while preventing secrecy and selfishness from erupting. The free source movement may not have money to move mountains, but it does have this love. + +This love also has a more traditional effect on the hackers who create the free source code. They do it because they love what they're doing. Many of the people in the free source movement are motivated by writing great software, and they judge their success by the recognition they get from equally talented peers. A "nice job" from the right person--like Richard Stallman, Alan Cox, or Linus Torvalds--can be worth more than $100,000 for some folks. It's a strange way to keep score, but for most of the programmers in the free source world it's more of a challenge than money. Any schmoe in Silicon Valley can make a couple of million dollars, but only a few select folks can rewrite the network interface code of the Linux kernel to improve the throughput of the Apache server by 20 percent. + +Keeping score by counting the number of people who dig your work is a strange system, but one that offers the same incentives as business. A good store doesn't insult people who could be repeat customers. A good free software project doesn't insult people who have a choice of which package to use. A good businessman makes it easy for people to get to the store, park, and make a purchase. A good free software project makes it simple for people to download the code, compile it, modify it, understand it, and use it. + +There's even some research to support the notion that rewards can diminish the creativity of people. Stallman likes to circulate a 1987 article from the Boston Globe that describes a number of different scientific experiments that show how people who get paid are less creative than those who produce things from their love of the art. The studies evaluated the success of poets, artists, and teachers who did their job for the fun of it and compared it with those who were rewarded for their efforts. In many cases, these were short-bounded exercises that could be evaluated fairly easily. + +One scientist, Theresa Amabile, told the Globe that her work "definitely refutes the notion that creativity can be operantly conditioned." +That is, you can't turn it on by just pouring some money on it. Many free software folks point out that this is why the free source movement is just as likely to succeed as a massively funded corporate juggernaut. + +Many people don't need scientists to tell them that you can't throw money at many problems and expect them to go away. This is a hard lesson that managers and businesses learn quickly. But this doesn't mean that the lack of money means that the free source movement will beat the thousands of shackled programmers in their corporate rabbit hutches. These studies just measured "creativity" and found that the unpaid folks were more "creative." That's not necessarily a compliment. In fact, the word is often used as a euphemism for "strange," "weird," or just plain "bad." It's more often a measure of just how different something is instead of how good it is. Would you rather eat at the house of a creative chef or a good chef? + +This love of creativity can be a problem for the free source world. Most people don't want to use a creative spreadsheet to do their accounting--it could get them in trouble with the SEC or the IRS. They want a solid team player for many of their jobs, not a way cool creative one. + +The free source world is often seen as too artistic and temperamental to undertake the long, arduous task of creating good, solid software that solves the jobs of banks, pharmacies, airlines, and everyone else. Many of these tasks are both mind-numbingly boring and difficult to do. While they just involve adding a few numbers and matching up some data, the tasks have to be done right or airplanes will crash. The free source world can't rely on love or creativity to motivate people to take on these tasks. The only solution might be money. + +Of course, it's important to recognize that even seemingly boring jobs can have very creative solutions. Stallman's GNU Emacs is a fascinating and over-the-top, creative solution to the simple job of manipulating text. Word processors and text editors might not be that exciting anymore, but finding creative ways to accomplish the task is still possible. + +1~ Corporations + +Many movies about teenagers follow a time-proven formula: once the magic summer is over, the gang is going to split up and it will never be the same again. Bob's going to college; Rick is getting married; and Harry is going to be stuck in the old town forever. Right now, the free software world is playing out the same emotions and dramas as the greater world discovers open source software. In the fall, the corporations are coming and the old, cool world of late-night hackfests fueled by pizza and Jolt are in danger. Some people in the realm of free source software are going to grow up, get educated, and join the establishment; +some will get married; and some will get left behind wondering why the old game isn't as cool anymore. + +The free source world is suffering from an acute case of success. Many of the great projects like Apache and Sendmail are growing up and being taken over by corporations with balance sheets. Well, not exactly taken over, but the corporations will exist and they'll try to shepherd development. Other corporations like Apple, Sun, and Netscape are experimenting with open source licenses and trying to make money while sharing code. Some quaint open source companies like Red Hat are growing wealthy by floating IPOs to raise some money and maybe buy a few Porsches for their stakeholders. There's a lot of coming of age going on. + +On the face of it, none of this rampant corporatization should scare the guys who built the free software world in their spare cycles. The corporations are coming to free source because it's a success. They want to grab some of the open software mojo and use it to drive their own companies. The suits on the plane are all tuning into Slashdot, buying T-shirts, and reading Eric Raymond's essay "The Cathedral and the Bazaar" in the hopes of glomming on to a great idea. The suits have given up their usual quid pro quo: be a good nerd, keep the code running, and we'll let you wear a T-shirt in your basement office. Now they want to try to move in and live the life, too. If Eric Raymond were selling Kool-Aid, they would be fighting to drink it. + +The talk is serious, and it's affecting many of the old-line companies as well. Netscape started the game by releasing the source code to a development version of their browser in March of 1998. Apple and Sun followed and began giving away the source code to part of their OS. Of course, Apple got part of the core of their OS from the open source world, but that's sort of beside the point. They're still sharing some of their new, Apple-only code. Some, not all. But that's a lot more than they shared before. Sun is even sharing the source code to their Java system. If you sign the right papers or click the right buttons, you can download the code right now. Its license is more restrictive, but they're joining the club, getting religion, and hopping on the bandwagon. + +Most of the true devotees are nervous about all of this attention. The free software world was easy to understand when it was just late-night hackfests and endless railing against AT&T and UNIX. It was simple when it was just messing around with grungy code that did way cool things. It was a great, he-man, Windoze-hating clubhouse back then. + +Well, the truth is that some of the free software world is going to go off to college, graduate with a business degree, and turn respectable. Eric Allman, for instance, is trying to build a commercial version of his popular free package Sendmail. The free version will still be free, but you can get a nicer interface and some cooler features for managing accounts if you buy in. If things work out, some of the folks with the free version will want all of the extra features he's tacking on and they'll pay him. No one knows what this will do to the long-term development of Sendmail, of course. Will he only make new improvements in the proprietary code? Will other folks stop contributing to the project because they see a company involved? There's some evidence that Allman's not the same guy who hung around the pizza joint. When I contacted him for an interview, he passed me along to his public relations expert, who wrote back wanting to "make sure this is a profitable way to spend Eric's time." For all we know, Eric may have even been wearing a suit when he hired a corporate PR team. + +Some of the other free software folks are going to get married. The Apache group has leveraged its success with small server organizations into connections with the best companies selling high-powered products. IBM is now a firm supporter of Apache, and they run it on many of their systems. Brian Behlendorf still schedules his own appointments, jokes often, and speaks freely about his vision for Apache, but he's as serious as any married man with several kids to support. It's not just about serving up a few web pages filled with song lyrics or Star Wars trivia. People are using Apache for business--serious business. There can still be fun, but Apache needs to be even more certain that they're not screwing up. + +And of course there are thousands of free software projects that are going to get left behind hanging out at the same old pizza joint. There were always going to be thousands left behind. People get excited about new projects, better protocols, and neater code all the time. The old code just sort of withers away. Occasionally someone rediscovers it, but it is usually just forgotten and superseded. But this natural evolution wasn't painful until the successful projects started ending up on the covers of magazines and generating million-dollar deals with venture capitalists. People will always be wondering why their project isn't as big as Linux. + +There will also be thousands of almost great projects that just sail on being almost great. All of the distributions come with lots of programs that do some neat things. But there's no way that the spotlight can be bright enough to cover them all. There will be only one Torvalds and everyone is just going to be happy that he's so gracious when he reminds the adoring press that most of the work was done by thousands of other nameless folks. + +Most of the teen movies don't bother trying to figure out what happens after that last fateful summer. It's just better to end the movie with a dramatic race or stage show that crystallizes all the unity and passion that built up among this group during their formative years. They sing, they dance, they win the big game, they go to the prom, and then cameras love to freeze the moment at the end of the film. The free software movement, on the other hand, is just too important and powerful to stop this book on a climactic note. It would be fun to just pause the book at the moment in time when Linus Torvalds and Bob Young were all over the magazines. Their big show was a success, but the real question is what will happen when some folks go to school, some folks get married, and some folks are left behind. + +To some extent, the influx of money and corporations is old news. Very old news. Richard Stallman faced the same problem in the 1980s when he realized that he needed to find a way to live without a university paycheck. He came up with the clever notion that the software and the source must always be free, but that anyone could charge whatever the market would bear for the copies. The Free Software Foundation itself continues to fund much of its development by creating and selling both CD-ROMs and printed manuals. + +This decision to welcome money into the fold didn't wreck free software. If anything, it made it possible for companies like Red Hat to emerge and sell easier-to-use versions of the free software. The companies competed to put out the best distributions and didn't use copyright and other intellectual property laws to constrain each other. This helped attract more good programmers to the realm because most folks would rather spend their time writing code than juggling drivers on their machine. Good distributions like Red Hat, Slackware, Debian, FreeBSD, and SuSE made it possible for everyone to get their machines up and running faster. + +There's no reason why the latest push into the mainstream is going to be any different. Sure, Red Hat is charging more and creating better packages, but most of the distribution is still governed by the GPL. Whenever people complain that Red Hat costs too much, Bob Young just points people to the companies that rip off his CDs and charge only $2 or $3 per copy. The GPL keeps many people from straying too far from the ideal. + +The source is also still available. Sure, the corporate suits can come in, cut deals, issue press releases, raise venture capital, and do some IPOs, but that doesn't change the fact that the source code is now widely distributed. Wasn't that the goal of Stallman's revolution? Didn't he want to be able to get at the guts of software and fix it? The source is now more omnipresent than ever. The corporations are practically begging folks to download it and send in bug fixes. + +Of course, access to the source was only half of Stallman's battle. A cynic might growl that the corporations seem to be begging folks to do their research, testing, and development work for them. They're looking for free beers. Stallman wanted freedom to do whatever he wanted with the source and many of the companies aren't ready to throw away all of their control. + +Apple sells its brand, and it was careful not to open up the source code to its classic desktop interface. They kept that locked away. Most of the source code that Apple released is from its next version of the operating system, Mac OS X, which came from the folks at NeXT when Apple acquired that company. Where did that code come from? +Large portions came from the various free versions of BSD like NetBSD or Mach. It's easy to be generous when you only wrote a fraction of the code. + +Ernest Prabhakar, the project manager for Apple's first open source effort known as Darwin, describes the tack he took to get Apple's management to embrace this small core version of the BSD operating system tuned to the Macintosh hardware platform. + +"The first catalysts were the universities. There were a lot of universities like MIT and University of Michigan that had some specialized network infrastructure needs," he said. + +"We realized that the pieces they're most interested in are the most commoditized. There wasn't really any proprietary technology added that we had to worry about them copying. There are people who know them better than we do like the BSD community. We started making the case, if we really want to partner with the universities we should just open the source code and release it as a complete BSD-style operating system. + +"We wanted people to use this in classes, really embed it in the whole educational process without constraining teaching to fit some corporate model," he finishes. + +Of course, Prabhakar suggests that there is some self-interest as well. Apple wants to be a full partner with the BSD community. It wants the code it shares to mingle and cross-pollinate with the code from the BSD trees. In the long run, Apple's Darwin and the BSDs will grow closer together. In an ideal world, both groups will flourish as they avoid duplicating each other's efforts. + +Prabhakar says, "This reduces our reintegration costs. The ability to take the standard version of FreeBSD and dump it into our OS was a big win. Prior to doing the open source, we had done a small scale of givebacks." + +This view is echoed by other companies. IBM is a great hardware company and an even greater service company that's never had much luck selling software, at least in the same way that Microsoft sells software. Their OS/2 never got far off the ground. They've sold plenty of software to companies by bundling it with handholding and long-term service, but they've never had great success in the shrink-wrapped software business. Open source gives them the opportunity to cut software development costs and concentrate on providing service and hardware. They get free development help from everyone and the customers get more flexibility. + +Sun's Community Source License is also not without some self-interest. The company would like to make sure that Java continues to be "Write Once, Run Anywhere," and that means carefully controlling the APIs and the code to make sure no idiosyncrasies or other glitches emerge. People and companies that want to be part of the community must abide by Sun's fairly generous, but not complete, gift to the world. + +The company's web page points out the restriction Sun places on its source code fairly clearly. "Modified source code cannot be distributed without the express written permission of Sun" and "Binary programs built using modified Java 2 SDK source code may not be distributed, internally or externally, without meeting the compatibility and royalty requirements described in the License Agreement." + +While some see this clause as a pair of manacles, Bill Joy explains that the Community Source License is closer to our definition of a real community. "It's a community in a stronger sense," he told an audience at Stanford. "If you make improvements, you can own them." After you negotiate a license with Sun, you can sell them. Joy also points out that Sun's license does require some of the GNU-like sharing by requiring everyone to report bugs. + +Some customers may like a dictator demanding complete obeisance to Sun's definition of Java, but some users are chaffing a bit. The freedom to look at the code isn't enough. They want the freedom to add their own features that are best tuned to their own needs, a process that may start to Balkanize the realm by creating more and more slightly different versions of Java. Sun clearly worries that the benefits of all this tuning aren't worth living through the cacophony of having thousands of slightly different versions. Releasing the source code allows all of the users to see more information about the structure of Sun's Java and helps them work off the same page. This is still a great use of the source code, but it isn't as free as the use imagined by Stallman. + +Alan Baratz, the former president of Sun's Java division, says that their Community Source License has been a large success. Sure, some folks would like the ability to take the code and fork off their own versions as they might be able to do with software protected by a BSD- or GNU-style license, but Java developers really want the assurance that it's all compatible. As many said, "Microsoft wanted to fork Java so it could destroy it." + +Baratz said, "We now have forty thousand community source licensees. The developers and the systems builders and the users all want the branded Java technology. They want to know that all of the apps are going to be there. That's the number-one reason that developers are writing to the platform." Their more restrictive license may not make Stallman and other free software devotees happy, but at least Java will run everywhere. + +Maybe in this case, the quality and strength of the unity Sun brings to the marketplace is more important than the complete freedom to do whatever you want. There are already several Java clones available, like Kaffe. They were created without the help of Sun, so their creators aren't bound by Sun's licenses. But they also go out of their way to avoid splitting with Sun. Tim Wilkinson, the CEO of Transvirtual, the creators of Kaffe, says that he plans to continue to make Kaffe 100 percent Java compatible without paying royalties or abiding by the Community Source License. If his project or other similar ones continue to thrive and grow, then people will know that the freedom of open source can be as important as blind allegiance to Sun. + +These corporate efforts are largely welcomed by the open source world, but the welcome does not come with open arms or a great deal of warmth. + +Source code with some restrictions is generally better than no source at all, but there is still a great deal of suspicion. Theo de Raadt, the leader of the OpenBSD project, says, "Is that free? We will not look at Apple source code because we'll have contaminated ourselves." De Raadt is probably overreacting, but he may have reason to worry. AT&T's USL tied up the BSD project for more than a year with a lawsuit that it eventually lost. Who knows what Apple could do to the folks at OpenBSD if there were a some debate over whether some code should be constrained by the Apple license? It's just easier for everyone at OpenBSD to avoid looking at the Apple code so they can be sure that the Apple license won't give some lawyers a toehold on OpenBSD's code base. + +Richard Stallman says, "Sun wants to be thought of as having joined our club, without paying the dues or complying with the public service requirements. They want the users to settle for the fragments of freedom Sun will let them have." + +He continues, "Sun has intentionally rejected the free software community by using a license that is much too restrictive. You are not allowed to redistribute modified versions of Sun's Java software. It is not free software." + +2~ Fat Cats and Alley Cats + +The corporations could also sow discord and grief by creating two different classes: the haves and the have-nots. The people who work at the company and draw a salary would get paid for working on the software while others would get a cheery grin and some thanks. Everyone's code would still be free, but some of the contributors might get much more than others. In the past, everyone was just hanging out on the Net and adding their contributions because it was fun. + +This split is already growing. Red Hat software employs some of the major Linux contributors like Alan Cox. They get a salary while the rest of the contributors get nothing. Sun, Apple, and IBM employees get salaries, but folks who work on Apache or the open versions of BSD get nothing but the opportunity to hack cool code. + +One employee from Microsoft, who spoke on background, predicted complete and utter disaster. "Those folks are going to see the guys from Red Hat driving around in the Porsches and they're just going to quit writing code. Why help someone else get rich?" he said. I pointed out that jealousy wasn't just a problem for free software projects. Didn't many contract employees from Microsoft gather together and sue to receive stock options? Weren't they locked out, too? + +Still, he raises an interesting point. Getting people to join together for the sake of a group is easy to do when no one is getting rich. What will happen when more money starts pouring into some folks' pockets? +Will people defect? Will they stop contributing? + +Naysayers are quick to point to experiments like Netscape's Mozilla project, which distributed the source code to the next generation of its browser. The project received plenty of hype because it was the first big open source project created by a major company. They set up their own website and built serious tools for keeping track of bugs. Still, the project has not generated any great browser that would allow it to be deemed a success. At this writing, about 15 months after the release, they're still circulating better and better beta versions, but none are as complete or feature-rich as the regular version of Netscape, which remains proprietary.~{ At this writing, version M13 of Mozilla looks very impressive. It's getting quite close to the proprietary version of Netscape. }~ + +The naysayers like to point out that Netscape never really got much outside help on the Mozilla project. Many of the project's core group were Netscape employees and most of the work was done by Netscape employees. There were some shining examples like Jim Clark (no relation to the founder of Netscape with the same name), who contributed an entire XML parser to the project. David Baron began hacking and testing the Mozilla code when he was a freshman at Harvard. But beyond that, there was no great groundswell of enthusiasm. The masses didn't rise up and write hundreds of thousands of lines of code and save Netscape. + +But it's just as easy to cast the project as a success. Mozilla was the first big corporate-sponsored project. Nothing came before it, so it isn't possible to compare it with anything. It is both the best and the worst example. The civilian devotees could just as well be said to have broken the world record for source code contributed to a semi-commercial project. Yes, most of the work was officially done by Netscape employees, but how do you measure work? Many programmers think a good bug report is more valuable than a thousand lines of code. Sure, some folks like Baron spend most of their time testing the source code and looking for incompatibilities, but that's still very valuable. He might not have added new code himself, but his insight may be worth much more to the folks who eventually rely on the product to be bug-free. + +It's also important to measure the scope of the project. Mozilla set out to rewrite most of the Netscape code. In the early days, Netscape grew by leaps and bounds as the company struggled to add more and more features to keep ahead of Microsoft. The company often didn't have the time to rebuild and reengineer the product, and many of the new features were not added in the best possible way. The Mozilla team started off by trying to rebuild the code and put it on a stable foundation for the future. This hard-core, structural work often isn't as dramatic. Casual observers just note that the Mozilla browser doesn't have as many features as plain old Netscape. They don't realize that it's completely redesigned inside. + +Jeff Bates, an editor at Slashdot, says that Mozilla may have suffered because Netscape was so successful. The Netscape browser was already available for free for Linux. "There wasn't a big itch to scratch," he says. +"We already had Netscape, which was fine for most people. This project interested a smaller group than if we'd not had Netscape-hence why it didn't get as much attention." + +The experiences at other companies like Apple and Sun have been more muted. These two companies also released the source code to their major products, but they did not frame the releases as big barn-raising projects where all of the users would rise up and do the development work for the company. Some people portrayed the Mozilla project as a bit of a failure because Netscape employees continued to do the bulk of code writing. Apple and Sun have done a better job emphasizing the value of having the source available while avoiding the impossible dream of getting the folks who buy the computers to write the OS, too. + +Not all interactions between open source projects and corporations involve corporations releasing their source code under a new open source license. Much more code flows from the open source community into corporations. Free things are just as tempting to companies as to people. + +In most cases, the flow is not particularly novel. The companies just choose FreeBSD or some version of Linux for their machines like any normal human being. Many web companies use a free OS like Linux or FreeBSD because they're both cheap and reliable. This is going to grow much more common as companies realize they can save a substantial amount of money over buying seat licenses from companies like Microsoft. + +In some cases, the interactions between the open source realm and the corporate cubicle farm become fairly novel. When the Apache web server grew popular, the developers at IBM recognized that they had an interesting opportunity at hand. If IBM could get the Apache server to work on its platforms, it might sell more machines. Apache was growing more common, and common software often sold machines. When people came looking for a new web server, the IBM salesmen thought it might be nice to offer something that was well known. + +Apache's license is pretty loose. IBM could have taken the Apache code, added some modifications, and simply released it under their own name. The license only required that IBM give some credit by saying the version was derived from Apache itself. This isn't hard to do when you're getting something for free. + +Other companies have done the same thing. Brian Behlendorf, one of the Apache core group, says, "There's a company that's taken the Apache code and ported it to Mac. They didn't contribute anything back to the Apache group, but it didn't really hurt us to do that." He suggested that the karma came back to haunt them because Apple began releasing their own version of Apache with the new OS, effectively limiting the company's market. + +IBM is, of course, an old master at creating smooth relationships with customers and suppliers. They chose to build a deeper relationship with Apache by hiring one of the core developers, Ken Coar, and paying him to keep everyone happy. + +"My job is multifaceted," says Coar. "I don't work on the IBM addedvalue stuff. I work on the base Apache code on whatever platforms are available to me. I serve as a liaison between IBM and the Apache group, basically advising IBM on whether the things that they want to do are appropriate. It's an interesting yet unique role. All of my code makes it back into the base Apache code." + +Coar ended up with the job because he helped IBM and Apache negotiate the original relationship. He said there was a considerable amount of uncertainty on both sides. IBM wondered how they could get something without paying for it, and Apache wondered whether IBM would come in and simply absorb Apache. + +"There were questions about it from the Apache side that any sort of IBM partnership would make it seem as if IBM had acquired Apache. It was something that Apache didn't want to see happen or seem to see happen," Coar said. + +Today, Coar says IBM tries to participate in the Apache project as a peer. Some of the code IBM develops will flow into the group and other bits may remain proprietary. When the Apache group incorporated, Coar and another IBM employee, Ken Stoddard, were members. This sort of long-term involvement can help ensure that the Apache group doesn't start developing the server in ways that will hurt its performance on IBM's machine. If you pay several guys who contribute frequently to the project, you can be certain that your needs will be heard by the group. It doesn't guarantee anything, but it can buy a substantial amount of goodwill. + +Of course, it's important to realize that the Apache group was always fairly business-oriented. Many of the original developers ran web servers and wanted access to the source code. They made money by selling the service of maintaining a website to the customers, not a shrink-wrapped copy of Apache itself. The deal with IBM didn't mean that Apache changed many of its ways; it just started working with some bigger fish. + +At first glance, each of these examples doesn't really suggest that the coming of the corporations is going to change much in the free source world. Many of the changes were made long ago when people realized that some money flowing around made the free software world a much better place. The strongest principles still survive: (1) hackers thrive when the source code is available, and (2) people can create their own versions at will. + +The arrival of companies like IBM doesn't change this. The core Apache code is still available and still running smoothly. The modules still plug in and work well. There's no code that requires IBM hardware to run and the committee seems determined to make sure that any IBM takeover doesn't occur. In fact, it still seems to be in everyone's best interest to keep the old development model. The marketplace loves standards, and IBM could sell many machines just offering a standard version of Apache. When the customers walk in looking for a web server, IBM's sales force can just say "This little baby handles X billion hits a day and it runs the industry-leading Apache server." IBM's arrival isn't much different from the arrival of a straightlaced, no-nonsense guy who strolls in from the Net and wants to contribute to Apache so he can get ahead in his job as a webmaster. In this case, it's just a corporation, not a person. + +Many suggest that IBM will gradually try to absorb more and more control over Apache because that's what corporations do. They generate inscrutable contracts and unleash armies of lawyers. This view is shortsighted because it ignores how much IBM gains by maintaining an arm'slength relationship. If Apache is a general program used on machines throughout the industry, then IBM doesn't need to educate customers on how to use it. Many of them learned in college or in their spare time on their home machines. Many of them read books published by third parties, and some took courses offered by others. IBM is effectively offloading much of its education and support costs onto a marketplace of third-party providers. + +Would IBM be happier if Apache was both the leading product in the market and completely owned by IBM? Sure, but that's not how it turned out. IBM designed the PC, but they couldn't push OS/2 on everyone. They can make great computers, however, and that's not a bad business to be in. At least Apache isn't controlled by anyone else, and that makes the compromise pretty easy on the ego. + +Some worry that there's a greater question left unanswered by the arrival of corporations. In the past, there was a general link between the creator of a product and the consumer. If the creator didn't do a good job, then the consumer could punish the creator by not buying another version. This marketplace would ensure that only the best survived. + +Patrick Reilly writes, "In a free market, identifiable manufacturers own the product. They are responsible for product performance, and they can be held liable for inexcusable flaws." + +What happens if a bug emerges in some version of the Linux kernel and it makes it into several distributions? It's not really the fault of the distribution creators, because they were just shipping the latest version of the kernel. And it's not really the kernel creators' fault, because they weren't marketing the kernel as ready for everyone to run. They were just floating some cool software on the Net for free. Who's responsible for the bug? Who gets sued? + +Reilly takes the scenario even further. Imagine that one clever distribution company finds a fix for the bug and puts it into their distribution. They get no long-term reward because any of the other distribution companies can come along and grab the bug fix. + +He writes, "Consumers concerned about software compatibility would probably purchase the standard versions. But companies would lose profit as other consumers would freely download improved versions of the software from the Internet. Eventually the companies would suffer from widespread confusion over the wide variety of software versions of each product, including standard versions pirated by profiteers." + +There's no doubt that Reilly points toward a true breakdown in the feedback loop that is supposed to keep free markets honest and efficient. Brand names are important, and the free source world is a pretty confusing stew of brand names. + +But he also overestimates the quality of the software emerging from proprietary companies that can supposedly be punished by the marketplace. Many users complain frequently about bugs that never get fixed in proprietary code, in part because the proprietary companies are frantically trying to glom on more features so they can convince more people to buy another version of the software. Bugs don't always get fixed in the proprietary model, either. + +Richard Stallman understands Reilly's point, but he suggests that the facts don't bear him out. If this feedback loop is so important, why do so many people brag about free software's reliability? + +Stallman says, "He has pointed out a theoretical problem, but if you look at the empirical facts, we do not have a real problem. So it is only a problem for the theory, not a problem for the users. Economists may have a challenge explaining why we DO produce such reliable software, but users have no reason to worry." + +2~ The Return of the Hardware Kings + +The biggest effect of the free software revolution may be to shift the power between the hardware and software companies. The biggest corporate proponents of open source are IBM, Apple, Netscape/AOL, Sun, and Hewlett-Packard. All except Netscape are major hardware companies that watched Microsoft turn the PC world into a software monopoly that ruled a commodity hardware business. + +Free source code changes the equation and shifts power away from software companies like Microsoft. IBM and Hewlett-Packard are no longer as beholden to Microsoft if they can ship machines running a free OS. Apple is borrowing open source software and using it for the core of their new OS. These companies know that the customers come to them looking for a computer that works nicely when it comes from the factory. Who cares whether the software is free or not? If it does what the customer wants, then they can make their money on hardware. + +The free software movement pushes software into the public realm, and this makes it easier for the hardware companies to operate. Car companies don't sit around and argue about who owns the locations of the pedals or the position of the dials on the dashboard. Those notions and design solutions are freely available to all car companies equally. The lawyers don't need to get involved in that level of car creation. + +Of course, the free software movement could lead to more consolidation in the hardware business. The car business coalesced over the years because the large companies were able to use their economies of scale to push out the small companies. No one had dominion over the idea of putting four wheels on a car or building an engine with pistons, so the most efficient companies grew big. + +This is also a threat for the computer business. Microsoft licensed their OS to all companies, big or small, that were willing to prostrate themselves before the master. It was in Microsoft's best interests to foster free competition between the computer companies. Free software takes this one step further. If no company has control over the dominant OS, then competition will shift to the most efficient producers. The same forces that brought GM to the center of the car industry could help aggregate the hardware business. + +This vision would be more worrisome if it hadn't happened already. Intel dominates the market for CPU chips and takes home the lion's share of the price of a PC. The marketplace already chose a winner of that battle. Now, free software could unshackle Intel from its need to maintain a partnership with Microsoft by making Intel stronger. + +Of course, the free OSs could also weaken Intel by opening it up to competition. Windows 3.1, 95, and 98 always ran only on Intel platforms. This made it easier for Intel to dominate the PC world because the OS that was most in demand would only run on Intel or Intel compatible chips. Microsoft made some attempt to break out of this tight partnership by creating versions of Windows NT that ran on the Alpha chip, but these were never an important part of the market. + +The free OS also puts Intel's lion's share up for grabs. Linux runs well on Intel chips, but it also runs on chips made by IBM, Motorola, Compaq, and many others. The NetBSD team loves to brag that its software runs on almost all platforms available and is dedicated to porting it to as many as possible. Someone using Linux or NetBSD doesn't care who made the chip inside because the OS behaves similarly on all of them. + +Free source code also threatens one of the traditional ways computer manufacturers differentiated their products. The Apple Macintosh lost market share and potential customers because it was said that there wasn't much software available for it. The software written for the PC would run on the Mac only using a slow program that converted it. Now, if everyone has access to the source code, they can convert the software to run on their machine. In many cases, it's as simple as just recompiling it, a step that takes less than a minute. Someone using an Amiga version of NetBSD could take software running on an Intel chip version and recompile it. + +This threat shows that the emergence of the free OSs ensures that hardware companies will also face increased competitive pressure. Sure, they may be able to get Microsoft off their back, but Linux may make things a bit worse. + +In the end, the coming of age of free software may be just as big a threat to the old way of life for corporations as it is to the free software community. Sure, the hackers will lose the easy camaraderie of swapping code with others, but the corporations will need to learn to live without complete control. Software companies will be under increasing pressure from free versions, and hardware companies will be shocked to discover that their product will become more of a commodity than it was before. Everyone is going to have to find a way to compete and pay the rent when much of the intellectual property is free. + +These are big changes that affect big players. But what will the changes mean to the programmers who stay up late spinning mountains of code? Will they be disenfranchised? Will they quit in despair? Will they move on to open source experiments on the human genome? + +"The money flowing in won't turn people off or break up the community, and here's why," says Eric Raymond. "The demand for programmers has been so high for the last decade that anyone who really cared about money is already gone. We've been selected for artistic passion." + +1~ Money + +Everyone who's made it past high school knows that money changes everything. Jobs disappear, love crumbles, and wars begin when money gets tight. Of course, a good number of free source believers aren't out of high school, but they'll figure this out soon enough. Money is just the way that we pay for things we need like food, clothing, housing, and of course newer, bigger, and faster computers. + +The concept of money has always been the Achilles heel of the free software world. Everyone quickly realizes the advantages of sharing the source code with everyone else. As they say in the software business, "It's a no-brainer." But figuring out a way to keep the fridge stocked with Jolt Cola confounds some of the best advocates for free software. + +Stallman carefully tried to spell out his solution in the GNU Manifesto. He wrote, "There's nothing wrong with wanting pay for work, or seeking to maximize one's income, as long as one does not use means that are destructive. But the means customary in the field of software today are based on destruction. + +"Extracting money from users of a program by restricting their use of it is destructive because the restrictions reduce the amount and the way that the program can be used. This reduces the amount of wealth that humanity derives from the program. When there is a deliberate choice to restrict, the harmful consequences are deliberate destruction." + +At first glance, Richard Stallman doesn't have to worry too much about making ends meet. MIT gave him an office. He got a genius grant from the MacArthur Foundation. Companies pay him to help port his free software to their platforms. His golden reputation combined with a frugal lifestyle means that he can support himself with two months of paid work a year. The rest of the time he donates to the Free Software Foundation. It's not in the same league as running Microsoft, but he gets by. + +Still, Stallman's existence is far from certain. He had to work hard to develop the funding lines he has. In order to avoid any conflicts of interest, the Free Software Foundation doesn't pay Stallman a salary or cover his travel expenses. He says that getting paid by corporations to port software helped make ends meet, but it didn't help create new software. Stallman works hard to raise new funds for the FSF, and the money goes right out the door to pay programmers on new projects. This daily struggle for some form of income is one of the greatest challenges in the free source world today. + +Many other free software folks are following Stallman's tack by selling the services, not the software. Many of the members of the Apache Webserver Core, for instance, make their money by running websites. They get paid because their customers are able to type in www.website.com and see something pop up. The customer doesn't care whether it is free software or something from Microsoft that is juggling the requests. They just want the graphics and text to keep moving. + +Some consultants are following in the same footsteps. Several now offer discounts of something like 25 percent if the customer agrees to release the source code from the project as free software. If there's no great proprietary information in the project, then customers often take the deal. At first glance, the consultant looks like he's cutting his rates by 25 percent, but at second glance, he might be just making things a bit more efficient for all of his customers. He can reuse the software his clients release, and no one knows it better than he does. In time, all of his clients share code and enjoy lower development costs. + +The model of selling services instead of source code works well for many people, but it is still far from perfect. Software that is sold as part of a shrink-wrapped license is easy for people to understand and budget. If you pay the price, you get the software. Services are often billed by the hour and they're often very open-ended. Managing these relationships can be just as difficult as raising some capital to write the software and then marketing it as shrink-wrapped code. + +2~ Cygnus--One Company that Grew Rich on Free Software + +There have been a number of different success stories of companies built around selling free software. One of the better-known examples is Cygnus, a company that specializes in maintaining and porting the GNU C Compiler. The company originally began by selling support contracts for the free software before realizing that there was a great demand for compiler development. + +The philosophy in the beginning was simple. John Gilmore, one of the founders, said, "We make free software affordable." They felt that free software offered many great tools that people needed and wanted, but realized that the software did not come with guaranteed support. Cygnus would sell people contracts that would pay for an engineer who would learn the source code inside and out while waiting to answer questions. The engineer could also rewrite code and help out. + +David Henkel-Wallace, one of the other founders, says, "We started in 1989 technically, 1990 really. Our first offices were in my house on University Avenue [in Palo Alto]. We didn't have a garage, we had a carport. It was an apartment complex. We got another apartment and etherneted them together. By the time we left, we had six apartments." + +While the Bay Area was very technically sophisticated, the Internet was mainly used at that time by universities and research labs. Commercial hookups were rare and only found in special corners like the corporate research playpen, Xerox PARC. In order to get Net service, Cygnus came up with a novel plan to wire the apartment complex and sell off some of the extra bandwidth to their neighbors. HenkelWallace says, "We started our own ISP [Internet Service Provider] as a cooperative because there weren't those things in those days. Then people moved into those apartments because they were on the Internet." + +At the beginning, the company hoped that the free software would allow them to offer something the major manufacturers didn't: cross-platform consistency. The GNU software would perform the same on a DEC Alpha, a Sun SPARC, and even a Microsoft box. The manufacturers, on the other hand, were locked up in their proprietary worlds where there was little cross-pollination. Each company developed its own editors, compilers, and source code tools, and each took slightly different approaches. + +One of the other founders, Michael Tiemann, writes of the time: +"When it came to tools for programmers in 1989, proprietary software was in a dismal state. First, the tools were primitive in the features they offered. Second, the features, when available, often had built-in limitations that tended to break when projects started to get complicated. Third, support from proprietary vendors was terrible . . . finally, every vendor implemented their own proprietary extensions, so that when you did use the meager features of one platform, you became, imperceptibly at first, then more obviously later, inextricably tied to that platform." + +The solution was to clean up the GNU tools, add some features, and sell the package to people who had shops filled with different machines. Henkel-Wallace said, "We were going to have two products: compiler tools and shell tools. Open systems people will buy a bunch of SGIs, a bunch of HPs, a bunch of Unix machines. Well, we thought people who have the same environment would want to have the same tools." + +This vision didn't work out. They sold no contracts that offered that kind of support. They did find, however, that people wanted them to move the compiler to other platforms. "The compilers people got from the vendors weren't as good and the compiler side of the business was making money from day one," says Henkel-Wallace. + +The company began to specialize in porting GCC, the GNU compiler written first by Richard Stallman, to new chips that came along. While much of the visible world of computers was frantically standardizing on Intel chips running Microsoft operating systems, an invisible world was fragmenting as competition for the embedded systems blossomed. Everyone was making different chips to run the guts of microwave ovens, cell phones, laser printers, network routers, and other devices. These manufacturers didn't care whether a chip ran the latest MS software, they just wanted it to run. The appliance makers would set up the chip makers to compete against each other to provide the best solution with the cheapest price, and the chip manufacturers responded by churning out a stream of new, smaller, faster, and cheaper chips. + +Cygnus began porting the GCC to each of these new chips, usually after being paid by the manufacturer. In the past, the chip companies would write or license their own proprietary compilers in the hope of generating something unique that would attract sales. Cygnus undercut this idea by offering something standard and significantly cheaper. The chip companies would save themselves the trouble of coming up with their own compiler tools and also get something that was fairly familiar to their customers. Folks who used GCC on Motorola's chip last year were open to trying out National Semiconductor's new chip if it also ran GCC. Supporting free software may not have found many takers, but Cygnus found more than enough people who wanted standard systems for their embedded processors. + +Selling processor manufacturers on the conversion contracts was also a bit easier. Businesses wondered what they were doing paying good money for free software. It just didn't compute. The chip manufacturers stopped worrying about this when they realized that the free compilers were just incentives to get people to use their chips. The companies spent millions buying pens, T-shirts, and other doodads that they gave away to market the chips. What was different about buying software? If it made the customers happy, great. The chip companies didn't worry as much about losing a competitive advantage by giving away their work. It was just lagniappe. + +Cygnus, of course, had to worry about competition. There was usually some guy who worked at the chip company or knew someone who worked at the chip company who would say, "Hey, I know compilers as well as those guys at Cygnus. I can download GCC too and underbid them." + +Henkel-Wallace says, "Cygnus was rarely the lowest bidder. People who cared about price more than anyone else were often the hardest customers anyway. We did deals on a fair price and I think people were happy with the result. We rarely competed on price. What really matters to you? Getting a working tool set or a cheap price?" + +2~ How the GPL Built Cygnus's Monopoly + +The GNU General Public License was also a bit of a secret weapon for Cygnus. When their competitors won a contract, they had to release the source code for their version when they were done with it. All of the new features and insights developed by competitors would flow directly back to Cygnus. + +Michael Tiemann sounds surprisingly like Bill Gates when he speaks about this power: "Fortunately, the open source model comes to the rescue again. Unless and until a competitor can match the one hundred-plus engineers we have on staff today, most of whom are primary authors or maintainers of the software we support, they cannot displace us from our position as the 'true GNU' source. The best they can hope to do is add incremental features that their customers might pay them to add. But because the software is open source, whatever value they add comes back to Cygnus. . . ." + +Seeing these effects is something that only a truely devoted fan of free software can do. Most people rarely get beyond identifying the problems with giving up the source code to a project. They don't realize that the GPL affects all users and also hobbles the potential competitors. It's like a mutual disarmament or mutual armament treaty that fixes the rules for all comers and disarmament treaties are often favored by the most powerful. + +The money Cygnus makes by selling this support has been quite outstanding. The company continues to grow every year, and it has been listed as one of the largest and fastest-growing private software companies. The operation was also a bootstrap business where the company used the funds from existing contracts to fund the research and development of new tools. They didn't take funding from outside venture capital firms until 1995. This let the founders and the workers keep a large portion of the company, one of the dreams of every Silicon Valley start-up. In 1999, Red Hot merged with Cygnus to "create an open source powerhouse." + +The success of Cygnus doesn't mean that others have found ways of duplicating the model. While Cygnus has found some success and venture capital, Gilmore says, "The free software business gives many MBAs the willies."Many programmers have found that free software is just a free gift for others. They haven't found an easy way to charge for their work. + +2~ Snitchware + +Larry McVoy is one programmer who looks at the free source world and cringes. He's an old hand from the UNIX world who is now trying to build a new system for storing the source code. To him, giving away source code is a one-way train to no money. Sure, companies like Cygnus and Red Hat can make money by adding some extra service, but the competition means that the price of this value will steadily go to zero. There are no regulatory or large capital costs to restrain entry, so he feels that the free software world will eventually push out all but the independently wealthy and the precollege teens who can live at home. +"We need to find a sustainable method. People need to write code and raise families, pay mortgages, and all of that stuff," he says. + +McVoy's solution is a strange license that some call "snitchware." He's developing a product known as BitKeeper and he's giving it away, with several very different hooks attached. He approached this philosophically. He says, "In order to make money, I need to find something that the free software guys don't value that the businesspeople do value. Then I take it away from the free software guys. The thing I found is your privacy." + +BitKeeper is an interesting type of product that became essential as software projects grew larger and more unwieldy. In the beginning, programmers wrote a program that was just one coherent file with a beginning, a middle, some digressions, and then an end. These were very self-contained and easily managed by one person. + +When more than one programmer started working on a project together, however, everyone needed to work on coordinating their work with each other. One person couldn't start tearing apart the menus because another might be trying to hook up the menus to a new file system. If both started working on the same part, the changes would be difficult if not impossible to sort out when both were done. Once a team of programmers digs out from a major mess like that, they look for some software like BitKeeper to keep the source code organized. + +BitKeeper is sophisticated and well-integrated with the Internet. Teams of programmers can be spread out throughout the world. At particular times, programmers can call each other up and synchronize their projects. Both tightly controlled, large corporate teams and loose and uncoordinated open source development teams can use the tool. + +The synchronization creates change logs that summarize the differences between two versions of the project. These change logs are optimized to move the least amount of information. If two programmers don't do too much work, then synchronizing them doesn't take too long. The change logs build up a complete history of the project and make it possible to roll back the project to earlier points if it turns out that development took the wrong path. + +McVoy's snitchware solution is to post the change logs of the people who don't buy a professional license. These logs include detailed information on how two programs are synchronized, and he figures that this information should be valuable enough for a commercial company to keep secret. They might say, "Moved auction control structure to Bob's version from Caroline's version. Moved new PostScript graphics engine to Caroline's version from Bob's." + +McVoy says, "If you're Sun or Boeing, you don't want the Internet to be posting a message like 'I just added the bomb bay.' But for the free software guys, not only is that acceptable, but it's desirable. If you're doing open source, what do you have to hide?" + +BitKeeper is free for anyone to use, revise, and extend as long as they don't mess with the part that tattles. If you don't care about the world reading your change logs, then it's not much different from the traditional open source license. The user has the same rights to extend, revise, and modify BitKeeper as they do GNU Emacs, with one small exception: you can't disable the snitch feature. + +McVoy thinks this is an understandable trade-off. "From the business guys you can extract money. You can hope that they'll pay you. This is an important point I learned consulting at Schwab and Morgan Stanley. They insist that they pay for the software they get. They don't want to pay nothing. I used to think that they were idiots. Now I think they're very smart," he says. + +The matter is simple economics, he explains. "They believe that if enough money is going to their supplier, it won't be a total disaster. I call this an insurance model of software." + +Companies that pay for the privacy with BitKeeper will also be funding further development. The work won't be done in someone's spare time between exams and the homecoming game. It won't be done between keeping the network running and helping the new secretary learn Microsoft Word. It will be developed by folks who get paid to do the work. + +"There's enough money going back to the corporation so it can be supported," McVoy says. "This is the crux of the problem with the open source model. It's possible to abuse the proprietary model, too. They get you in there, they lock you in, and then they rape you. This business of hoping that it will be okay is unacceptable. You need to have a lock. The MIS directors insist you have a lock." + +He has a point. Linux is a lot of fun to play with and it is now a very stable OS, but it took a fair number of years to get to this point. Many folks in the free source world like to say things like, "It used to be that the most fun in Linux was just getting it to work." Companies like Morgan Stanley, Schwab, American Airlines, and most others live and die on the quality of their computer systems. They're quite willing to pay money if it helps ensure that things don't go wrong. + +McVoy's solution hasn't rubbed everyone the right way. The Open Source Initiative doesn't include his snitchware license in a list of acceptable solutions. "The consensus of the license police is that my license is NOT open source," he says. "The consensus of my lawyer is that it is. But I don't call it open source anymore." + +He's going his own way. "I made my own determination of what people value in the OS community: they have to be able to get the source, modify the source, and redistribute the source for no fee. All of the other crap is yeah, yeah whatever," he says. + +"The problem with the GPL is the GPL has an ax to grind, and in order to grind that ax it takes away all of the rights of the person who wrote the code. It serves the need of everyone in the community except the person who wrote it." + +McVoy has also considered a number of other alternatives. Instead of taking away something that the free software folks don't value, he considered putting in something that the businesses would pay to get rid of. The product could show ads it downloaded from a central location. This solution is already well known on the Internet, where companies give away e-mail, searching solutions, directories, and tons of information in order to sell ads. This solution, however, tends to wreck the usability of the software. Eudora, the popular e-mail program, is distributed with this option. + +McVoy also considered finding a way to charge for changes and support to BitKeeper. "The Cygnus model isn't working well because it turns them into a contracting shop. That means you actually have to do something for every hour of work." + +To him, writing software and charging for each version can generate money without work--that is, without doing further work. The support house has to have someone answering the phone every moment. A company that is selling shrink-wrapped software can collect money as people buy new copies. McVoy doesn't want this cash to spend tipping bartenders on cruise ships, although he doesn't rule it out. He wants the capital to reinvest in other neat ideas. He wants to have some cash coming in so he can start up development teams looking at new and bigger projects. + +The Cygnus model is too constraining for him. He argues that a company relying on support contracts must look for a customer to fund each project. Cygnus, for instance, had to convince Intel that they could do a good job porting the GCC to the i960. They found few people interested in general support of GNU, so they ended up concentrating on GCC. + +McVoy argues that it's the engineers who come up with the dreams first. The customers are often more conservative and less able to see how some new tool or piece of software could be really useful. Someone needs to hole up in a garage for a bit to create a convincing demonstration of the idea. Funding a dream takes capital. + +To him, the absence of money in the free software world can be a real limitation because money is a way to store value. It's not just about affording a new Range Rover and balsamic vinegars that cost more than cocaine by weight. Money can be a nice way to store up effort and transport it across time. Someone can work like a dog for a six months, turn out a great product, and sell it for a pile of cash. Ten years later, the cash can be spent on something else. The work is effectively stored for the future. + +Of course, this vision isn't exactly true. Cygnus has managed to charge enough for their contracts to fund the development of extra tools. Adding new features and rolling them out into the general distribution of some GNU tool is part of the job that the Cygnus team took on for themselves. These new features also mean that the users need more support. On one level, it's not much different from a traditional software development cycle. Cygnus is doing its work by subscription while a traditional house is creating its new features on spec. + +In fact, Cygnus did so well over such a long period of time that it found it could raise capital. "Once Cygnus had a track record of making money and delivering on time, investors wanted a piece of it," says Gilmore. + +Red Hat has managed to sell enough CD-ROM disks to fund the development of new projects. They've created a good selection of installation tools that make it relatively easy for people to use Linux. They also help pay salaries for people like Alan Cox who contribute a great deal to the evolution of the kernel. They do all of this while others are free to copy their distribution disks verbatim. + +McVoy doesn't argue with these facts, but feels that they're just a temporary occurrence. The huge growth of interest in Linux means that many new folks are exploring the operating system. There's a great demand for the hand-holding and packaging that Red Hat offers. In time, though, everyone will figure out how to use the product and the revenue stream should disappear as competition drives out the ability to charge $50 for each disk. + +Of course, the folks at Cygnus or Red Hat might not disagree with McVoy either. They know it's a competitive world and they figure that their only choice is to remain competitive by finding something that people will want to pay for. They've done it in the past and they should probably be able to do it in the future. There are always new features. + +2~ Bounties for Quicker Typer-Uppers + +Some developers are starting to explore a third way of blending capital with open source development by trying to let companies and people put bounties out on source code. The concept is pretty simple and tuned to the open software world. Let's say you have an annoying habit of placing French bon mots in the middle of sentences. Although this looks stupide to your friends, you think it's quite chic. The problem is that your old word processor's spell checker isn't quite à la mode and it only operates avec une seule langue. The problem is that you've spent too much time studying français and drinking de café and not enough time studying Java, the programming language. You're très désolé by your word processor's inability to grok just how BCBG you can be and spell-check in deux languages. + +The bounty system could be your savior. You would post a message saying, "Attention! I will reward with a check for $100 anyone who creates a two-language spell-checker." If you're lucky, someone who knows something about the spell-checker's source code will add the feature in a few minutes. One hundred dollars for a few minutes' work isn't too shabby. + +It is entirely possible that another person out there is having the same problem getting their word processor to verstehen their needs. They might chip in $50 to the pool. If the problem is truly grande, then the pot could grow quite large. + +This solution is blessed with the wide-open, free-market sensibility that many people in the open software community like. The bounties are posted in the open and anyone is free to try to claim the bounties by going to work. Ideally, the most knowledgeable will be the first to complete the job and nab the payoff. + +Several developers are trying to create a firm infrastructure for the plan. Brian Behlendorf, one of the founding members of the Apache web server development team, is working with Tim O'Reilly's company to build a website known as SourceXchange. Another group known as CoSource is led by Bernie Thompson and his wife, Laurie. Both will work to create more software that is released with free source. + +Of course, these projects are more than websites. They're really a process, and how the process will work is still unclear right now. While it is easy to circulate a notice that some guy will pay some money for some software, it is another thing to actually make it work. Writing software is a frustrating process and there are many chances for disagreement. The biggest question on every developer's mind is "How can I be sure I'll be paid?" and the biggest question on every sugar daddy's mind is "How can I be sure that the software works?" + +These questions are part of any software development experience. There is often a large gap between the expectations of the person commissioning the software and the person writing the code. In this shadow are confusion, betrayal, and turmoil. + +The normal solution is to break the project up into milestones and require payment after each milestone passes. If the coder is doing something unsatisfactory, the message is transmitted when payment doesn't arrive. Both SourceXchange and CoSource plan on carrying over the same structure to the world of bounty-hunting programmers. Each project might be broken into a number of different steps and a price for each step might be posted in advance. + +Both systems try to alleviate the danger of nonpayment by requiring that someone step in and referee the end of the project. A peer reviewer must be able to look over the specs of the project and the final code and then determine whether money should be paid. Ideally, this person should be someone both sides respect. + +A neutral party with the ability to make respectable decisions is something many programmers and consultants would welcome. In many normal situations, the contractors can only turn to the courts to solve disagreements, and the legal system is not really schooled in making these kinds of decisions. The company with the money is often able to dangle payment in front of the programmers and use this as a lever to extract more work. Many programmers have at least one horror story to tell about overly ambitious expectations. + +Of course, the existence of a wise neutral party who can see deeply into the problems and provide a fair solution is close to a myth. Judging takes time. SourceXchange promises that these peer reviewers will be paid, and this money will probably have to come from the people offering the bounty. They're the only ones putting money into the system in the long run. Plus, the system must make the people offering bounties happy in the long run or it will fail. + +The CoSource project suggests that the developers must come up with their own authority who will judge the end of the job and present this person with their bid. The sponsors then decide whether to trust the peer reviewer when they okay the job. The authorities will be judged like the developers, and summaries of their reputation will be posted on the site. While it isn't clear how the reviewers will be paid, it is not too much to expect that there will be some people out there who will do it just for the pleasure of having their finger in the stew. They might, for instance, want to offer the bounty themselves but be unable to put up much money. Acting as a reviewer would give them the chance to make sure the software did what they wanted without putting up much cash. + +One of the most difficult questions is how to run the marketplace. A wide-open solution would let the sponsors pay when the job was done satisfactorily. The first person to the door with running code that met the specs would be the one to be paid. Any other team that showed up later would get nothing. + +This approach would offer the greatest guarantees of creating well-running code as quickly as possible. The programmers would have a strong incentive to meet the specs quickly in order to win the cash. The downside is that the price would be driven up because the programmers would be taking on more risk. They would need to capitalize their own development and take the chance that someone might beat them to the door. Anxious sponsors who need some code quickly should be willing to pay the price. + +Another solution is to award contracts before any work is done. Developers would essentially bid on the project and the sponsor would choose one to start work. The process would be fairly formal and favor the seasoned, connected programmers. A couple of kids working in their spare time might be able to win an open bounty, but they would be at a great disadvantage in this system. Both CoSource and SourceXchange say that they'll favor this sort of preliminary negotiation. + +If the contracts are awarded before work begins, the bounty system looks less like a wild free-for-all and more like just a neutral marketplace for contract programmers to make their deals. Companies like Cygnus already bid to be paid for jobs that produce open source. These market-places for bounties will need to provide some structure and efficiencies to make it worth people's time to use them. + +One possible benefit of the bounty system is to aggregate the desires of many small groups. While some bounties will only serve the person who asks for them, many have the potential to help people who are willing to pay. An efficient system should be able to join these people together into one group and put their money into one pot. + +CoSource says that it will try to put together the bounties of many small groups and allow people to pay them with credit cards. It uses the example of a group of Linux developers who would gather together to fund the creation of an open source version of their favorite game. They would each chip in $10, $20, or $50 and when the pot got big enough, someone would step forward. Creating a cohesive political group that could effectively offer a large bounty is a great job for these sites. + +Of course, there are deeper questions about the flow of capital and the nature of risks in these bounty-based approaches. In traditional software development, one group pays for the creation of the software in the hope that they'll be able to sell it for more than it cost to create. Here, the programmer would be guaranteed a fixed payment if he accomplished the job. The developer's risk is not completely eliminated because the job might take longer than they expected, but there is little of the traditional risk of a start-up firm. It may not be a good idea to separate the risk-taking from the people doing the work. That is often the best way to keep people focused and devoted. + +Each of these three systems shows how hard the free software industry is working at finding a way for people to pay their bills and share information successfully. Companies like Cygnus or BitKeeper are real efforts built by serious people who can't live off the largesse of a university or a steady stream of government grants. Their success shows that it is quite possible to make money and give the source code away for free, but it isn't easy. + +Still, there is no way to know how well these companies will survive the brutal competition that comes from the free flow of the source code. There are no barriers to entry, so each corporation must be constantly on its toes. The business becomes one of service, not manufacturing, and that changes everything. There are no grand slam home runs in that world. There are no billion-dollar explosions. Service businesses grow by careful attention to detail and plenty of focused effort. + +1~ Fork + +A T-shirt once offered this wisdom to the world: "If you love someone, set them free. If they come back to you, it was meant to be. If they don't come back, hunt them down and kill them." The world of free software revolves around letting your source code go off into the world. If things go well, others will love the source code, shower it with bug fixes, and send all of this hard work flowing back to you. It will be a shining example of harmony and another reason why the free software world is great. But if things don't work out, someone might fork you and there's nothing you can do about it. + +"Fork" is a UNIX command that allows you to split a job in half. UNIX is an operating system that allows several people to use the same computer to do different tasks, and the operating system pretends to run them simultaneously by quickly jumping from task to task. A typical UNIX computer has at least 100 different tasks running. Some watch the network for incoming data, some run programs for the user, some watch over the file system, and others do many menial tasks. + +If you "fork a job," you arrange to split it into two parts that the computer treats as two separate jobs. This can be quite useful if both jobs are often interrupted, because one can continue while the other one stalls. This solution is great if two tasks, A and B, need to be accomplished independently of each other. If you use one task and try to accomplish A first, then B won't start until A finishes. This can be quite inefficient if A stalls. A better solution is to fork the job and treat A and B as two separate tasks. + +Most programmers don't spend much time talking about these kinds of forks. They're mainly concerned about forks in the political process. + +Programmers use "fork" to describe a similar process in the organization of a project, but the meaning is quite different. Forks of a team mean that the group splits and goes in different directions. One part might concentrate on adding support for buzzword Alpha while the other might aim for full buzzword Beta compatibility. + +In some cases, there are deep divisions behind the decision to fork. One group thinks buzzword Alpha is a sloppy, brain-dead kludge job that's going to blow up in a few years. The other group hates buzzword Beta with a passion. Disputes like this happen all the time. They often get resolved peacefully when someone comes up with buzzword Gamma, which eclipses them both. When no Gamma arrives, people start talking about going their separate ways and forking the source. If the dust settles, two different versions start appearing on the Net competing with each other for the hearts and CPUs of the folks out there. Sometimes the differences between the versions are great and sometimes they're small. But there's now a fork in the evolution of the source code, and people have to start making choices. + +The free software community has a strange attitude toward forks. On one hand, forking is the whole reason Stallman wrote the free software manifesto. He wanted the right and the ability to mess around with the software on his computer. He wanted to be free to change it, modify it, and tear it to shreds if he felt like doing it one afternoon. No one should be able to stop him from doing that. He wanted to be totally free. + +On the other hand, forking can hurt the community by duplicating efforts, splitting alliances, and sowing confusion in the minds of users. If Bob starts writing and publishing his own version of Linux out of his house, then he's taking some energy away from the main version. People start wondering if the version they're running is the Missouri Synod version of Emacs or the Christian Baptist version. Where do they send bug fixes? Who's in charge? Distribution groups like Debian or Red Hat have to spend a few moments trying to decide whether they want to include one version or the other. If they include both, they have to choose one as the default. Sometimes they just throw up their hands and forget about both. It's a civil war, and those are always worse than a plain old war. + +Some forks evolve out of personalities that just rub each other the wrong way. I've heard time and time again, "Oh, we had to kick him out of the group because he was offending people." Many members of the community consider this kind of forking bad. They use the same tone of voice to describe a fork of the source code as they use to describe the breakup of two lovers. It is sad, unfortunate, unpleasant, and something we'll never really understand because we weren't there. Sometimes people take sides because they have a strong opinion about who is right. They'll usually go off and start contributing to that code fork. In other cases, people don't know which to pick and they just close their eyes and join the one with the cutest logo. + +2~ Forks and the Threat of Disunity + +Eric Raymond once got in a big fight with Richard Stallman about the structure of Emacs Lisp. Raymond said, "The Lisp libraries were in bad shape in a number of ways. They were poorly documented. There was a lot of work that had gone on outside the FSF that should be integrated and I wanted to merge in the best work from outside." + +The problem is that Stallman didn't want any part of Raymond's work. "He just said, 'I won't take those changes into the distribution.' +That's his privilege to do," Raymond said. + +That put Raymond in an awkward position. He could continue to do the work, create his own distribution of Emacs, and publicly break with Stallman. If he were right and the Lisp code really needed work, then he would probably find more than a few folks who would cheer his work. They might start following him by downloading his distribution and sending their bug fixes his way. Of course, if he were wrong, he would set up his own web server, do all the work, put his Lisp fixes out there, and find that no one would show up. He would be ignored because people found it easier to just download Stallman's version of Emacs, which everyone thought was sort of the official version, if one could be said to exist. They didn't use the Lisp feature too much so it wasn't worth thinking about how some guy in Pennsylvania had fixed it. They were getting the real thing from the big man himself. + +Of course, something in between would probably happen. Some folks who cared about Lisp would make a point of downloading Raymond's version. The rest of the world would just go on using the regular version. In time, Stallman might soften and embrace the changes, but he might not. Perhaps someone would come along and create a third distribution that melded Raymond's changes with Stallman's into a harmonious version. That would be a great thing, except that it would force everyone to choose from among three different versions. + +In the end, Raymond decided to forget about his improvements. +"Emacs is too large and too complicated and forking is bad. There was in fact one group that got so fed up with working with him that they did fork Emacs. That's why X Emacs exists. But major forks like that are rare events and I didn't want to be part of perpetrating another one," +he said. Someone else was going to have to start the civil war by firing those shots at Fort Sumter. + +2~ BSD's Garden of Forking Paths + +Some forks aren't so bad. There often comes a time when people have legitimate reasons to go down different paths. What's legitimate and what's not is often decided after a big argument, but the standard reasons are the same ones that drive programming projects. A good fork should make a computer run software a gazillion times faster. Or it might make the code much easier to port to a new platform. Or it might make the code more secure. There are a thousand different reasons, and it's impossible to really measure which is the right one. The only true measure is the number of people who follow each branch of the fork. If a project has a number of good disciples and the bug fixes are coming quickly, then people tend to assume it is legitimate. + +The various versions of the BSD software distribution are some of the more famous splits around. All are descended, in one way or another, from the original versions of UNIX that came out of Berkeley. Most of the current ones evolved from the 4.3BSD version and the Network Release 2 and some integrated code from the 4.4BSD release after it became free. All benefited from the work of the hundreds of folks who spent their free time cloning the features controlled by AT&T. All of them are controlled by the same loose BSD license that gives people the right to do pretty much anything they want to the code. All of them share the same cute daemon as a mascot. + +That's where the similarities end. The FreeBSD project is arguably the most successful version. It gets a fairly wide distribution because its developers have a good deal with Walnut Creek CD-ROM Distributors, a company that packages up large bundles of freeware and shareware on the Net and then sells them on CD-ROM. The system is well known and widely used because the FreeBSD team concentrates on making the software easy to use and install on Intel computers. Lately, they've created an Alpha version, but most of the users run the software on x86 chips. Yahoo! uses FreeBSD. + +FreeBSD, of course, began as a fork of an earlier project known as 386BSD, started by Bill Jolitz. This version of BSD was more of an academic example or a proof-of-concept than a big open source project designed to take over the world. + +Jordan Hubbard, someone who would come along later to create a fork of 386BSD, said of Jolitz's decision to create a 386-based fork of BSD, "Bill's real contribution was working with the 386 port. He was kind of an outsider. No one else saw the 386 as interesting. Berkeley had a myopic attitude toward PCs. They were just toys. No one would support Intel. That was the climate at the time. No one really took PCs seriously. Bill's contribution was to realize that PCs were going places." + +From the beginning, Hubbard and several others saw the genius in creating a 386 version of BSD that ran on the cheapest hardware available. They started adding features and gluing in bug fixes, which they distributed as a file that modified the main 386BSD distribution from Jolitz. This was practical at the beginning when the changes were few, but it continued out of respect for the original creator, even after the patches grew complicated. + +Finally, a tussle flared up in 1993. Jordan Hubbard, one of the forkers, writes in his history of the project, + +_1 386BSD was Bill Jolitz's operating system, which had been up to that point suffering rather severely from almost a year's worth of neglect. As the patchkit swelled ever more uncomfortably with each passing day, we were in unanimous agreement that something had to be done and decided to try and assist Bill by providing this interim "cleanup" snapshot. Those plans came to a rude halt when Bill Jolitz suddenly decided to withdraw his sanction from the project and without any clear indication of what would be done instead. + +The FreeBSD team pressed on despite the denial. They decided to fork. Today, 386BSD is largely part of the history of computing while FreeBSD is a living, current OS, at least at the time this book was written. The FreeBSD team has done a good job distributing bug-free versions, and they've been paid off in loyalty, disciples, and money and computers from Walnut Creek. Forking can often be good for society because it prevents one person or clique from thwarting another group. The free software world is filled with many of the same stories of politics that float across the watercoolers of corporations, but the stories don't have to end the same way. If one boss or group tries to shut down a free software project, it really can't. The source code is freely available, and people are free to carry on. The FreeBSD project is one example. + +Of course, good software can have anti-forking effects. Linus Torvalds said in one interview, "Actually, I have never even checked 386BSD out; when I started on Linux it wasn't available (although Bill Jolitz's series on it in Dr. Dobbs Journal had started and were interesting), and when 386BSD finally came out, Linux was already in a state where it was so usable that I never really thought about switching. If 386BSD had been available when I started on Linux, Linux would probably never have happened." So if 386BSD had been easier to find on the Net and better supported, Linux might never have begun. + +Once someone starts forking BSD, one fork is rarely enough. Another group known as NetBSD also grew fed up with the progress of 386BSD in 1993. This group, however, wanted to build a platform that ran well on many different machines, not just the Intel 386. The FreeBSD folks concentrated on doing a good job on Intel boxes, while the NetBSD wanted to create a version that ran on many different machines. Their slogan became "Of course it runs NetBSD." + +NetBSD runs on practically every machine you can imagine, including older, less up-to-date machines like the Amiga and the Atari. It has also been embraced by companies like NeXT, which bundled parts of it into the version of the OS for the Macintosh known as Rhapsody. Of course, the most common chips like the Intel line and the Alpha are also well supported. + +The NetBSD community emerged at the same time as the FreeBSD world. They didn't realize that each team was working on the same project at the same time. But once they started releasing their own versions, they stayed apart. + +"The NetBSD group has always been the purest. They saw it as an OS research vehicle. That was what CSRG was doing. Their only mandate was to do interesting research," said Hubbard. "It's a very different set of goals than we concentrated on for the 386. The important thing for us was to polish it up. We put all of our efforts into polishing, not porting. This was part of our bringing BSD to the masses kind of thing. We're going for numbers. We're going for mass penetration." + +This orientation meant that NetBSD never really achieved the same market domination as FreeBSD. The group only recently began shipping versions of NetBSD on CD-ROM. FreeBSD, on the other hand, has always excelled at attracting new and curious users thanks to their relationship with Walnut Creek. Many experimenters and open-minded users picked up one of the disks, and a few became excited enough to actually make some contributions. The Walnut Creek partnership also helped the FreeBSD team understand what it needed to do to make their distribution easier to install and simpler to use. That was Walnut Creek's business, after all. + +2~ Flames, Fights, and the Birth of OpenBSD + +The forking did not stop with NetBSD. Soon one member of the NetBSD world, Theo de Raadt, began to rub some people the wrong way. One member of the OpenBSD team told me, "The reason for the split from NetBSD was that Theo got kicked out. I don't understand it completely. More or less they say he was treating users on the mailing list badly. He does tend to be short and terse, but there's nothing wrong with that. He was one of the founding members of NetBSD and they asked him to resign." + +Now, four years after the split began in 1995, de Raadt is still a bit hurt by their decision. He says about his decision to fork BSD again, "I had no choice. I really like what I do. I really like working with a community. At the time it all happened, I was the second most active developer in their source tree. They took the second most active developer and kicked him off." + +Well, they didn't kick him out completely, but they did take away his ability to "commit" changes to the source tree and make them permanent. After the split, de Raadt had to e-mail his contributions to a member of the team so they could check them in. This didn't sit well with de Raadt, who saw it as both a demotion and a real impediment to doing work. + +The root of the split is easy to see. De Raadt is energetic. He thinks and speaks quickly about everything. He has a clear view about most free software and isn't afraid to share it. While some BSD members are charitable and conciliatory to Richard Stallman, de Raadt doesn't bother to hide his contempt for the organization. "The Free Software Foundation is one of the most misnamed organizations," he says, explaining that only BSD-style licensees have the true freedom to do whatever they want with the software. The GNU General Public License is a pair of handcuffs to him. + +De Raadt lives in Calgary and dresses up his personal web page with a picture of himself on top of a mountain wearing a bandanna. If you want to send him a pizza for any reason, he's posted the phone number of his favorite local shop (403/531-3131). Unfortunately, he reports that they don't take foreign credit card numbers anymore. + +He even manages to come up with strong opinions about simple things that he ostensibly loves. Mountain biking is a big obsession, but, he says, "I like mud and despise 'wooded back-alleys' (what most people call logging roads)." That's not the best way to make friends with less extreme folks who enjoy a Sunday ride down logging roads. + +If you like cats, don't read what he had to say about his pets: "I own cats. Their names are Galileo and Kepler--they're still kittens. Kepler-the little bitch--can apparently teleport through walls. Galileo is a rather cool monster. When they become full-grown cats I will make stew & soup out of them. (Kepler is only good for soup)." + +Throwaway comments like this have strange effects on the Net, where text is the only way people can communicate. There are no facial gestures or tonal clues to tell people someone is joking around, and some people don't have well-developed scanners for irony or sarcasm. Some love the sniping and baiting, while others just get annoyed. They can't let snide comments slide off their back. Eventually, the good gentlefolk who feel that personal kindness and politeness should still count for something in this world get annoyed and start trying to do something. + +It's easy to see how this affected the NetBSD folks, who conduct their business in a much more proper way. Charles Hannum, for instance, refused to talk to me about the schism unless I promised that he would be able to review the parts of the book that mentioned NetBSD. He also suggested that forks weren't particularly interesting and shouldn't be part of the book. Others begged off the questions with more polite letters saying that the split happened a long time ago and wasn't worth talking about anymore. Some pointed out that most of the members of the current NetBSD team weren't even around when the split happened. + +While their silence may be quite prudent and a better way to spend a life, it certainly didn't help me get both sides of the story. I pointed out that they wouldn't accept code into the NetBSD tree if the author demanded the right to review the final distribution. I said they could issue a statement or conduct the interview by e-mail. One argued that there was no great problem if a few paragraphs had to be deleted from the book in the end. I pointed out that I couldn't give the hundreds of people I spoke with veto power over the manuscript. It would be impossible to complete. The book wasn't being written by a committee. No one at NetBSD budged. + +De Raadt, on the other hand, spoke quite freely with no preconditions or limitations. He still keeps a log file with a good number of email letters exchanged during the separation and makes it easy to read them on his personal website. That's about as open as you can get. The NetBSD folks who refused to talk to me, on the other hand, seemed intent on keeping control of the story. Their silence came from a different world than the website offering the phone number of the local pizza place as a hint. They were Dragnet; de Raadt was Politically Incorrect. + +When the NetBSD folks decided to do something, they took away de Raadt's access to the source tree. He couldn't just poke around the code making changes as he went along. Well, he could poke around and make changes, but not to the official tree with the latest version. The project was open source, after all. He could download the latest release and start fiddling, but he couldn't make quasi-official decisions about what source was part of the latest official unreleased version. + +De Raadt thought this was a real barrier to work. He couldn't view the latest version of the code because it was kept out of his view. He was stuck with the last release, which might be several months old. That put him at an extreme disadvantage because he might start working on a problem only to discover that someone had either fixed it or changed it. + +Chris Demetriou found himself with the task of kicking de Raadt off of the team. His letter, which can still be found on the OpenBSD site, said that de Raadt's rough behavior and abusive messages had driven away people who might have contributed to the project. Demetriou also refused to talk about NetBSD unless he could review the sections of the book that contained his comments. He also threatened to take all possible action against anyone who even quoted his letters in a commercial book without his permission. + +De Raadt collected this note from Demetriou and the firestorm that followed in a 300k file that he keeps on his website. The NetBSD core tried to be polite and firm, but the matter soon degenerated into a seven-month-long flame war. After some time, people started having meta-arguments, debating whether the real argument was more or less like the bickering of a husband and wife who happen to work at the same company. Husbands and wives should keep their personal fights out of the workplace, they argued. And so they bickered over whether de Raadt's nastygrams were part of his "job" or just part of his social time. + +Through it all, de Raadt tried to get back his access to the source tree of NetBSD and the group tried to propose all sorts of mechanisms for making sure he was making a "positive" contribution and getting along with everyone. At one time, they offered him a letter to sign. These negotiations went nowhere, as de Raadt objected to being forced to make promises that other contributors didn't have to. + +De Raadt wrote free software because he wanted to be free to make changes or write code the way he wanted to do it. If he had wanted to wear the happy-face of a positive contributor, he could have gotten a job at a corporation. Giving up the right to get in flame wars and speak at will may not be that much of a trade-off for normal people with fulltime jobs. Normal folks swallow their pride daily. Normal people don't joke about turning their cats into soup. But de Raadt figured it was like losing a bit of his humanity and signing up willingly for a set of manacles. It just wasn't livable. + +The argument lasted months. De Raadt felt that he tried and tried to rejoin the project without giving away his honor. The core NetBSD team argued that they just wanted to make sure he would be positive. They wanted to make sure he wouldn't drive away perfectly good contributors with brash antics. No one ever gained any ground in the negotiations and in the end, de Raadt was gone. + +The good news is that the fork didn't end badly. De Raadt decided he wasn't going to take the demotion. He just couldn't do good work if he had to run all of his changes by one of the team that kicked him off the project. It took too long to ask "Mother, may I?" to fix every little bug. If he was going to have to run his own tree, he might as well go whole hog and start his own version of BSD. He called it OpenBSD. It was going to be completely open. There were going to be relatively few controls on the members. If the NetBSD core ran its world like the Puritan villagers in a Nathaniel Hawthorne story, then de Raadt was going to run his like Club Med. + +OpenBSD struggled for several months as de Raadt tried to attract more designers and coders to his project. It was a battle for popularity in many ways, not unlike high school. When the cliques split, everyone had to pick and choose. De Raadt had to get some folks in his camp if he was going to make some lemonade. + +The inspiration came to de Raadt one day when he discovered that the flame war archive on his web page was missing a few letters. He says that someone broke into his machine and made a few subtle deletions. Someone who had an intimate knowledge of the NetBSD system. Someone who cared about the image portrayed by the raw emotions in the supposedly private letters. + +He clarifies his comments to make it clear that he's not sure it was someone from the NetBSD core. "I never pursued it. If it happens, it's your own fault. It's not their fault," he said. Of course, the folks from NetBSD refused to discuss this matter or answer questions unless they could review the chapter. + +This break-in gave him a focus. De Raadt looked at NetBSD and decided that it was too insecure. He gathered a group of like-minded people and began to comb the code for potential insecurities. + +"About the same time, I got involved with a company that wrote a network security scanner. Three of the people over there started playing with the source tree and searching for security holes. We started finding problems all over the place, so we started a comprehensive security audit. We started from the beginning. Our task load increased massively. At one time, I had five pieces of paper on my desk full of things to look for," he said. + +Security holes in operating systems are strange beasts that usually appear by mistake when the programmer makes an unfounded assumption. One of the best-known holes is the buffer overflow, which became famous in 1988 after Robert Morris, then a graduate student at Cornell, unleashed a program that used the loophole to bring several important parts of the Internet to a crawl. + +In this case, the programmer creates a buffer to hold all of the information that someone on the net might send. Web browsers, for instance, send requests like "GET http://www.nytimes.com" to ask for the home page of the New York Times website. The programmer must set aside some chunk of memory to hold this request, usually a block that is about 512 bytes long. The programmer chooses an amount that should be more than enough for all requests, including the strangest and most complicated. + +Before the attack became well known, programmers would often ignore the length of the request and assume that 512 bytes was more than enough for anything. Who would ever type a URL that long? + +Who had an e-mail address that long? Attackers soon figured out that they could send more than 512 bytes and started writing over the rest of the computer's memory. The program would dutifully take in 100,000 bytes and keep writing it to memory. An attacker could download any software and start it running. And attackers did this. + +De Raadt and many others started combing the code for loopholes. They made sure every program that used a buffer included a bit of code that would check to ensure that no hacker was trying to sneak in more than the buffer could hold. They checked thousands of other possibilities. Every line was checked and changes were made even if there was no practical way for someone to get at the potential hole. Many buffers, for instance, only accept information from the person sitting at the terminal. The OpenBSD folks changed them, too. + +This audit began soon after the fork in 1995 and continues to this day. Most of the major work is done and the group likes to brag that they haven't had a hole that could be exploited remotely to gain root access in over two years. The latest logo boasts the tag line "Sending kiddies to /dev/null since 1995." That is, any attacker is going to go nowhere with OpenBSD because all of the extra information from the attacks would be routed to /dev/null, a UNIX conceit for being erased, ignored, and forgotten. + +The OpenBSD fork is a good example of how bad political battles can end up solving some important technical problems. Everyone fretted and worried when de Raadt announced that he was forking the BSD world one more time. This would further dilute the resources and sow confusion among users. The concentration on security, however, gave OpenBSD a brand identity, and the other BSD distributions keep at least one eye on the bug fixes distributed by the OpenBSD team. These often lead to surreptitious fixes in their own distribution. + +The focus also helped him attract new coders who were interested in security. "Some of them used to be crackers and they were really cool people. When they become eighteen, it becomes a federal offense, you know," de Raadt says. + +This fork may have made the BSD community stronger because it effectively elevated the focus on security and cryptography to the highest level. In the corporate world, it's like taking the leader of the development team responsible for security and promoting him from senior manager to senior executive vice president of a separate division. The autonomy also gave the OpenBSD team the ability to make bold technical decisions for their own reasons. If they saw a potential security problem that might hurt usability or portability, the OpenBSD team could make the change without worrying that other team members would complain. OpenBSD was about security. If you wanted to work on portability, go to NetBSD. If you cared about ease-of-use on Intel boxes, go to FreeBSD. Creating a separate OpenBSD world made it possible to give security a strong focus. + +2~ Temporary Forks + +It's a mistake to see these forks as absolute splits that never intermingle again. While NetBSD and OpenBSD continue to glower at each other across the Internet ether, the groups share code frequently because the licenses prevent one group from freezing out another. + +Jason Wright, one of the OpenBSD developers, says, "We do watch each other's source trees. One of the things I do for fun is take drivers out of FreeBSD and port them to OpenBSD. Then we have support for a new piece of hardware." + +He says he often looks for drivers written by Bill Paul, because "I've gotten used to his style. So I know what to change when I receive his code. I can do it in about five to six hours. That is, at least a rough port to test if it works." + +Still, the work is not always simple. He says some device drivers are much harder to handle because both groups have taken different approaches to the problem. "SCSI drivers are harder," he says. "There's been some divergence in the layering for SCSI. They're using something called CAM. We've got an older implementation that we've stuck to." +That is, the FreeBSD has reworked the structure of the way that the SCSI information is shipped to the parts of the system asking for information. The OpenBSD hasn't adopted their changes, perhaps because of security reasons or perhaps because of inertia or perhaps because no one has gotten around to thinking about it. The intermingling isn't perfect. + +Both NetBSD and FreeBSD work on security, too. They also watch the change logs of OpenBSD and note when security holes are fixed. They also discover their own holes, and OpenBSD may use them as an inspiration to plug their own code. The discoveries and plugs go both ways as the groups compete to make a perfect OS. + +Kirk McKusick says, "The NetBSD and the OpenBSD have extremely strong personalities. Each one is absolutely terrified the other will gain an inch." + +While the three forks of BSD may cooperate more than they compete, the Linux world still likes to look at the BSD world with a bit of contempt. All of the forks look somewhat messy, even if having the freedom to fork is what Stallman and GNU are ostensibly fighting to achieve. The Linux enthusiasts seem to think, "We've got our ducks in a single row. What's your problem?" It's sort of like the Army mentality. If it's green, uniform, and the same everywhere, then it must be good. + +The BSD lacks the monomaniacal cohesion of Linux, and this seems to hurt their image. The BSD community has always felt that Linux is stealing the limelight that should be shared at least equally between the groups. Linux is really built around a cult of Linus Torvalds, and that makes great press. It's very easy for the press to take photos of one man and put him on the cover of a magazine. It's simple, clean, neat, and perfectly amenable to a 30-second sound bite. Explaining that there's FreeBSD, NetBSD, OpenBSD, and who knows what smaller versions waiting in the wings just isn't as manageable. + +Eric Raymond, a true disciple of Linus Torvalds and Linux, sees it in technical terms. The BSD community is proud of the fact that each distribution is built out of one big source tree. They get all the source code for all the parts of the kernel, the utilities, the editors, and whatnot together in one place. Then they push the compile button and let people work. This is a crisp, effective, well-managed approach to the project. + +The Linux groups, however, are not that coordinated at all. Torvalds only really worries about the kernel, which is his baby. Someone else worries about GCC. Everyone comes up with their own source trees for the parts. The distribution companies like Red Hat worry about gluing the mess together. It's not unusual to find version 2.0 of the kernel in one distribution while another is sporting version 2.2. + +"In BSD, you can do a unified make. They're fairly proud of that," says Raymond. "But this creates rigidities that give people incentives to fork. The BSD things that are built that way develop new spin-off groups each week, while Linux, which is more loosely coupled, doesn't fork." + +He elaborates, "Somebody pointed out that there's a parallel of politics. Rigid political and social institutions tend to change violently if they change at all, while ones with more play in them tend to change peacefully." + +But this distinction may be semantic. Forking does occur in the Linux realm, but it happens as small diversions that get explained away with other words. Red Hat may choose to use GNOME, while another distribution like SuSE might choose KDE. The users will see a big difference because both tools create virtual desktop environments. You can't miss them. But people won't label this a fork. Both distributions are using the same Linux kernel and no one has gone off and said, "To hell with Linus, I'm going to build my own version of Linux." +Everyone's technically still calling themselves Linux, even if they're building something that looks fairly different on the surface. + +Jason Wright, one of the developers on the OpenBSD team, sees the organization as a good thing. "The one thing that all of the BSDs have over Linux is a unified source tree. We don't have Joe Blow's tree or Bob's tree," he says. In other words, when they fork, they do it officially, with great ceremony, and make sure the world knows of their separate creations. They make a clear break, and this makes it easier for developers. + +Wright says that this single source tree made it much easier for them to turn OpenBSD into a very secure OS."We've got the security over Linux. They've recently been doing a security audit for Linux, but they're going to have a lot more trouble. There's not one place to go for the source code." + +To extend this to political terms, the Linux world is like the 1980s when Ronald Reagan ran the Republican party with the maxim that no one should ever criticize another Republican. Sure, people argued internally about taxes, abortion, crime, and the usual controversies, but they displayed a rare public cohesion. No one criticizes Torvalds, and everyone is careful to pay lip service to the importance of Linux cohesion even as they're essentially forking by choosing different packages. + +The BSD world, on the other hand, is like the biblical realm in Monty Python's film The Life of Brian. In it, one character enumerates the various splinter groups opposing the occupation by the Romans. There is the People's Front of Judea, the Judean People's Front, the Front of Judean People, and several others. All are after the same thing and all are manifestly separate. The BSD world may share a fair amount of code; it may share the same goals, but it just presents it as coming from three different camps. + +John Gilmore, one of the founders of the free software company Cygnus and a firm believer in the advantages of the GNU General Public License, says, "In Linux, each package has a maintainer, and patches from all distributions go back through that maintainer. There is a sense of cohesion. People at each distribution work to reduce their differences from the version released by the maintainer. In the BSD world, each tree thinks they own each program--they don't send changes back to a central place because that violates the ego model." + +Jordan Hubbard, the leader of FreeBSD, is critical of Raymond's characterization of the BSD world. "I've always had a special place in my heart for that paper because he painted positions that didn't exist," Hubbard said of Raymond's piece "The Cathedral and the Bazaar." "You could point to just the Linux community and decide which part was cathedral-oriented and which part was bazaar-oriented. + +"Every single OS has cathedral parts and bazaar parts. There are some aspects of development that you leave deliberately unfocused and you let people contribute at their own pace. It's sort of a bubble-up model and that's the bazaar part. Then you have the organizational part of every project. That's the cathedral part. They're the gatekeepers and the standards setters. They're necessary, too," he said. + +When it comes right down to it, there's even plenty of forking going on about the definition of a fork. When some of the Linux team point at the BSD world and start making fun about the forks, the BSD team gets defensive. The BSD guys always get defensive because their founder isn't on the cover of all the magazines. The Linux team hints that maybe, if they weren't forking, they would have someone with a name in lights, too. + +Hubbard is right. Linux forks just as much, they just call it a distribution or an experimental kernel or a patch kit. No one has the chutzpah to spin off their own rival political organization. No one has the political clout. + +2~ A Fork, a Split, and a Reunion + +Now, after all of the nasty stories of backstabbing and bickering, it is important to realize that there are actually some happy stories of forks that merge back together. One of the best stories comes from the halls of an Internet security company, C2Net, that dealt with a fork in a very peaceful way. + +C2Net is a Berkeley-based company run by some hard-core advocates of online privacy and anonymity. The company began by offering a remailing service that allowed people to send anonymous e-mails to one another. Their site would strip off the return address and pass it along to the recipient with no trace of who sent it. They aimed to fulfill the need of people like whistleblowers, leakers, and other people in positions of weakness who wanted to use anonymity to avoid reprisals. + +The company soon took on a bigger goal when it decided to modify the popular Apache web server by adding strong encryption to make it possible for people to process credit cards over the web. The technology, known as SSL for "secure sockets layer," automatically arranged for all of the traffic between a remote web server and the user to be scrambled so that no one could eavesdrop. SSL is a very popular technology on the web today because many companies use it to scramble credit card numbers to defeat eavesdroppers. + +C2Net drew a fair deal of attention when one of its founders, Sameer Parekh, appeared on the cover of Forbes magazine with a headline teasing that he wanted to "overthrow the government." In reality, C2Net wanted to move development operations overseas, where there were no regulations on the creation of cryptographically secure software. C2Net went where the talent was available and priced right. + +In this case, C2Net chose a free version of SSL written by Eric Young known as SSLeay. Young's work is another of the open source success stories. He wrote the original version as a hobby and released it with a BSD-like license. Everyone liked his code, downloaded it, experimented with it, and used it to explore the boundaries of the protocol. Young was just swapping code with the Net and having a good time. + +Parekh and C2Net saw an opportunity. They would merge two free products, the Apache web server and Young's SSLeay, and make a secure version so people could easily set up secure commerce sites for the Internet. They called this product Stronghold and put it on the market commercially. + +C2Net's decision to charge for the software rubbed some folks the wrong way. They were taking two free software packages and making something commercial out of them. This wasn't just a fork, it seemed like robbery to some. Of course, these complaints weren't really fair. Both collections of code emerged with a BSD-style license that gave everyone the right to create and sell commercial additions to the product. There wasn't any GPL-like requirement that they give back to the community. If no one wanted a commercial version, they shouldn't have released the code with a very open license in the first place. + +Parekh understands these objections and says that he has weathered plenty of criticism on the internal mailing lists. Still, he feels that the Stronghold product contributed a great deal to the strength of Apache by legitimizing it. + +"I don't feel guilty about it. I don't think we've contributed a whole lot of source code, which is one of the key metrics that the people in the Apache group are using. In my perspective, the greatest contribution we've made is market acceptance," he said. + +Parekh doesn't mean that he had to build market acceptance among web developers. The Apache group was doing a good job of accomplishing that through their guerrilla tactics, excellent product, and free price tag. But no one was sending a message to the higher levels of the computer industry, where long-term plans were being made and corporate deals were being cut. Parekh feels that he built first-class respectability for the Apache name by creating and supporting a first-class product that big corporations could use successfully. He made sure that everyone knew that Apache was at the core of Stronghold, and people took notice. + +Parekh's first job was getting a patent license from RSA Data Security. Secure software like SSL relies on the RSA algorithm, an idea that was patented by three MIT professors in the 1970s. This patent is controlled by RSA Data Security. While the company publicized some of its licensing terms and went out of its way to market the technology, negotiating a license was not a trivial detail that could be handled by some free software team. Who's going to pay the license? Who's going to compute what some percentage of free is? Who's going to come up with the money? These questions are much easier to answer if you're a corporation charging customers to buy a product. C2Net was doing that. People who bought Stronghold got a license from RSA that ensured they could use the method without being sued. + +The patent was only the first hurdle. SSL is a technology that tries to bring some security to web connections by encrypting the connections between the browser and the server. Netscape added one feature that allows a connection to be established only if the server has a digital certificate that identifies it. These certificates are only issued to a company after it pays a fee to a registered certificate agent like Verisign. + +In the beginning, certificate agents like Verisign would issue the certificates only for servers created by big companies like Netscape or Microsoft. Apache was just an amorphous group on the Net. Verisign and the other authorities weren't paying attention to it. + +Parekh went to them and convinced them to start issuing the certificates so he could start selling Stronghold. + +"We became number three, right behind Microsoft and Netscape. Then they saw how much money they were making from us, so they started signing certificates for everyone," he said. Other Apache projects that used SSL found life much easier once Parekh showed Verisign that there was plenty of money to be made from folks using free software. + +Parekh does not deny that C2Net has not made many contributions to the code base of Apache, but he doesn't feel that this is the best measure. The political and marketing work of establishing Apache as a worthwhile tool is something that he feels may have been more crucial to its long-term health. When he started putting money in the hands of Verisign, he got those folks to realize that Apache had a real market share. That cash talked. + +The Stronghold fork, however, did not make everyone happy. SSL is an important tool and someone was going to start creating another free version. C2Net hired Eric Young and his collaborator Tim Hudson and paid them to do some work for Stronghold. The core version of Young's original SSLeay stayed open, and both continued to add bug fixes and other enhancements over time. Parekh felt comfortable with this relationship. Although Stronghold was paying the salaries of Young and Hudson, they were also spending some of their spare time keeping their SSLeay toolkit up to date. + +Still, the notion of a free version of SSL was a tempting project for someone to undertake. Many people wanted it. Secure digital commerce demanded it. There were plenty of economic incentives pushing for it to happen. Eventually, a German named Ralf S. Engelschall stepped up and wrote a new version he called mod_SSL. Engelschall is a well-regarded contributor to the Apache effort, and he has written or contributed to a number of different modules that could be added to Apache. He calls one the "all-dancing-all-singing mod_rewrite module" +for handling URLs easily. + +Suddenly, Engelschall's new version meant that there were dueling forks. One version came out of Australia, where the creators worked for a company selling a proprietary version of the code. C2Net distributed the Australian version and concentrated on making their product easy to install. The other came out of Europe, distributed for free by someone committed to an open source license. The interface may have been a bit rougher, but it didn't cost any money and it came with the source code. The potential for battle between SSLeay and mod_SSL could have been great. + +The two sides reviewed their options. Parekh must have felt a bit frustrated and at a disadvantage. He had a company that was making a good product with repeat buyers. Then an open source solution came along. C2Net's Stronghold cost money and didn't come with source code, while Engelschall's mod_SSL cost nothing and came with code. Those were major negatives that he could combat only by increasing service. When Engelschall was asked whether his free version was pushing C2Net, he sent back the e-mail with the typed message, "[grin]." + +In essence, C2Net faced the same situation as many major companies like Microsoft and Apple do today. The customers now had a viable open source solution to their problems. No one had to pay C2Net for the software. The users in the United States needed a patent license, but that would expire in late 2000. Luckily, Parekh is a true devotee to the open source world, even though he has been running a proprietary source company for the last several years. He looked at the problem and decided that the only way to stay alive was to join forces and mend the fork. + +To make matters worse, Hudson and Young left C2Net to work for RSA Data Security. Parekh lost two important members of his team, and he faced intense competition. Luckily, his devotion to open source came to the rescue. Hudson and Young couldn't take back any of the work they did on SSLeay. It was open source and available to everyone. + +Parekh, Engelschall, several C2Net employees, and several others sat down (via e-mail) and created a new project they called OpenSSL. This group would carry the torch of SSLeay and keep it up-to-date. Young and Hudson stopped contributing and devoted their time to creating a commercial version for RSA Data Security. + +Parekh says of the time, "Even though it was a serious setback for C2Net to have RSA pirate our people, it was good for the public. Development really accelerated when we started OpenSSL. More people became involved and control became less centralized. It became more like the Apache group. It's a lot bigger than it was before and it's much easier for anyone to contribute." + +Parekh also worked on mending fences with Engelschall. C2Net began to adopt some of the mod_SSL code and blend it into their latest version of Stronghold. To make this blending easier, C2Net began sending some of their formerly proprietary code back to Engelschall so he could mix it with mod_SSL by releasing it as open source. In essence, C2Net was averting a disastrous competition by making nice and sharing with this competitor. It is a surprising move that might not happen in regular business. + +Parekh's decision seems open and beneficent, but it has a certain amount of self-interest behind it. He explains, "We just decided to contribute all of the features we had into mod_SSL so we could start using mod_SSL internally, because it makes our maintenance of that easier. We don't have to maintain our own proprietary version of mod_SSL. Granted, we've made the public version better, but those features weren't significant." + +This mixing wasn't particularly complicated--most of it focused on the structure of the parts of the source code that handle the interface. Programmers call these the "hooks" or the "API." If Stronghold and mod_SSL use the same hook structure, then connecting them is a piece of cake. If Engelschall had changed the hook structure of mod_SSL, then the C2Net would have had to do more work. + +The decision to contribute the code stopped Engelschall from doing the work himself in a way that might have caused more grief for C2Net. +"He was actually planning on implementing them himself, so we were better off contributing ours to avoid compatibility issues," says Parekh. That is to say, Parekh was worried that Engelschall was going to go off and implement all the features C2Net used, and there was a very real danger that Engelschall would implement them in a way that was unusable to Parekh. Then there would be a more serious fork that would further split the two groups. C2Net wouldn't be able to borrow code from the free version of OpenSSL very easily. So it decided to contribute its own code. It was easier to give their code and guarantee that OpenSSL fit neatly into Stronghold. In essence, C2Net chose to give a little so it could continue to get all of the future improvements. + +It's not much different from the car industry. There's nothing inherently better or worse about cars that have their steering wheel on the right-hand side. They're much easier to use in England. But if some free car engineering development team emerged in England, it might make sense for a U.S. company to donate work early to ensure that the final product could have the steering wheel on either side of the car without extensive redesign. If Ford just sat by and hoped to grab the final free product, it might find that the British engineers happily designed for the only roads they knew. + +Engelschall is happy about this change. He wrote in an e-mail message, "They do the only reasonable approach: They base their server on mod_SSL because they know they cannot survive against the Open Source solution with their old proprietary code. And by contributing stuff to mod_SSL they implicitly make their own product better. This way both sides benefit." + +Parekh and C2Net now have a challenge. They must continue to make the Stronghold package better than the free version to justify the cost people are paying. + +Not all forks end with such a happy-faced story of mutual cooperation. Nor do all stories in the free software world end with the moneymaking corporation turning around and giving back their proprietary code to the general effort. But the C2Net/OpenSSL case illustrates how the nature of software development encourages companies and people to give and cooperate to satisfy their own selfish needs. Software can do a variety of wonderful things, but the structure often governs how easy it is for some of us to use. It makes sense to spend some extra time and make donations to a free software project if you want to make sure that the final product fits your specs. + +The good news is that most people don't have much incentive to break off and fork their own project. If you stay on the same team, then you can easily use all the results produced by the other members. Cooperating is so much easier than fighting that people have a big incentive to stay together. If it weren't so selfish, it would be heartwarming. + +1~ Core + +Projects in corporations have managers who report to other managers who report to the CEO who reports to the board. It's all very simple in theory, although it never really works that way in practice. The lines of control get crossed as people form alliances and struggle to keep their bosses happy. + +Projects in the world of open source software, on the other hand, give everyone a copy of the source code and let them be the master of the code running on their machine. Everyone gets to be the Board of Directors, the CEO, and the cubicle serfs rolled into one. If a free software user doesn't like something, then he has the power to change it. You don't like that icon? Boom, it's gone. You don't want KDE on your desktop? Whoosh, it's out of there. No vice president in charge of MSN marketing in Redmond is going to force you to have an icon for easy connection to the Microsoft Network on your desktop. No graphic designer at Apple is going to force you to look at that two-faced Picasso-esque MacOS logo every morning of your life just because their marketing studies show that they need to build a strong brand identity. You're the captain of your free software ship and you decide the menu, the course, the arrangement of the deck chairs, the placement of lookouts from which to watch for icebergs, the type of soap, and the number of toothpicks per passenger to order. In theory, you're the Lord High Master and Most Exalted Ruler of all Software Big and Small, Wild and Wonderful, and Interpreted and Compiled on your machine. + +In practice, no one has the time to use all of that power. It's downright boring to worry about soap and toothpicks. It's exhausting to rebuild window systems when they fail to meet your caviar-grade tastes in software. + +No one has the disk space to maintain an Imelda Marcos-like collection of screen savers, window managers, layout engines, and games for your computer. So you start hanging around with some friends who want similar things and the next thing you know, you've got a group. A group needs leadership, so the alpha dog emerges. Pretty soon, it all begins to look like a corporate development team. Well, kind of. + +Many neophytes in the free software world are often surprised to discover that most of the best free source code out there comes from teams that look surprisingly like corporate development groups. While the licenses and the rhetoric promise the freedom to go your own way, groups coalesce for many of the same reasons that wagon trains and convoys emerge. There's power in numbers. Sometimes these groups even get so serious that they incorporate. The Apache group recently formed the Apache Foundation, which has the job of guiding and supporting the development of the Apache web server. It's all very official looking. For all we know, they're putting cubicles in the foundation offices right now. + +This instinct to work together is just as powerful a force in the free software world as the instinct to grab as much freedom as possible and use it every day. If anything, it's just an essential feature of human life. The founders of the United States of America created an entire constitution without mentioning political parties, but once they pushed the start button, the parties appeared out of nowhere. + +These parties also emerged in the world of free source software. When projects grew larger than one person could safely handle, they usually evolved into development teams. The path for each group is somewhat different, and each one develops its own particular style. The strength of this organization is often the most important determinant of the strength of the software because if the people can work together well, then the problems in the software will be well fixed. + +The most prevalent form of government in these communities is the benign dictatorship. Richard Stallman wrote some of the most important code in the GNU pantheon, and he continues to write new code and help maintain the old software. The world of the Linux kernel is dominated by Linus Torvalds. The original founders always seem to hold a strong sway over the group. Most of the code in the Linux kernel is written by others and checked out by a tight circle of friends, but Torvalds still has the final word on many changes. + +The two of them are, of course, benign dictators, and the two of them don't really have any other choice. Both have a seemingly absolute amount of power, but this power is based on a mixture of personal affection and technical respect. There are no legal bounds that keep all of the developers in line. There are no rules about intellectual property or non-disclosure. Anyone can grab all of the Linux kernel or GNU source code, run off, and start making whatever changes they want. They could rename it FU, Bobux, Fredux, or Meganux and no one could stop them. The old threats of lawyers, guns, and money aren't anywhere to be seen. + +2~ Debian's Core Team + +The Debian group has a wonderful pedigree and many praise it as the purest version of Linux around, but it began as a bunch of outlaws who cried mutiny and tossed Richard Stallman overboard. Well, it wasn't really so dramatic. In fact, "mutiny" isn't really the right word when everyone is free to use the source code however they want. + +Bruce Perens remembers the split occurred less than a year after the project began and says, "Debian had already started. The FSF had been funding Ian Murdock for a few months. Richard at that time wanted us to make all of the executables unstripped." + +When programmers compile software and convert it from human-readable source code into machine-readable binary code, they often leave in some human readable information to help debug the program. Another way to say this is that the programmers don't strip the debugging tags out of the code. These tags are just the names of the variables used in the software, and a programmer can use them to analyze what each variable held when the software started going berserk. + +Perens continued, "His idea was if there was a problem, someone can send a stacktrace back without having to recompile a program and then making it break again. The problem with this was distributing executables unstripped makes them four times as large. It was a lot of extra expense and trouble. And our software didn't dump core anyway. That was really the bottom line. That sort of bug did not come up so often that it was necessary for us to distribute things that way anyways." + +Still, Stallman insisted it was a good idea. Debian resisted and said it took up too much space and raised duplication costs. Eventually, the debate ended as the Debian group went their own way. Although Stallman paid Murdock and wrote much of the GNU code on the disk, the GPL prevented him from doing much. The project continued. The source code lived on. And the Debian disks kept shipping. Stallman was no longer titular leader of Debian. + +The rift between the group has largely healed. Perens now praises Stallman and says that the two of them are still very close philosophically on the most important issues in the free software world. Stallman, for his part, uses Debian on his machines because he feels the closest kinship with it. + +Perens says, "Richard's actually grown up a lot in the last few years. He's learned a lot more about what to do to a volunteer because obviously we're free to walk away at any time." + +Stallman himself remembers the argument rather eloquently."The fact is, I wanted to influence them, but I did not want to force them. Forcing them would go against my moral beliefs. I believe that people are entitled to freedom in these matters, which means that I cannot tell them what to do," he told me. "I wrote the GPL to give everyone freedom from domination by authors of software, and that includes me on both sides." + +There's much debate over the best way to be a benign dictator. Eric Raymond and many others feel that Torvalds's greatest claim to success was creating a good development model. Torvalds released new versions of his kernel often and he tried to share the news about the development as openly as possible. Most of this news travels through a mailing list that is open to all and archived on a website. The mailing list is sort of like a perpetual congress where people debate the technical issues behind the latest changes to the kernel. It's often much better than the real United States Congress because the debate floor is open to all and there are no glaring special interests who try to steer the debate in their direction. After some period of debate, eventually Torvalds makes a decision and this becomes final. Usually he doesn't need to do anything. The answer is pretty obvious to everyone who's followed the discussion. + +This army is a diverse bunch. At a recent Linux conference, Jeff Bates, one of the editors of the influential website Slashdot (www.slashdot.org), +pointed me toward the Debian booth, which was next to theirs. "If you look in the booth, you can see that map. They put a pushpin in the board for every developer and project leader they have around the world. China, Netherlands, Somalia, there are people coming from all over." + +James Lewis-Moss is one of the members, who just happened to be in the Debian booth next door. He lives in Asheville, North Carolina, which is four hours west of the Convention Center in downtown Raleigh. The Debian group normally relies upon local volunteers to staff the booth, answer questions, distribute CD-ROMs, and keep people interested in the project. + +Lewis-Moss is officially in charge of maintaining several packages, including the X Emacs, a program that is used to edit text files, read email and news, and do a number of other tasks. A package is the official name for a bundle of smaller programs, files, data, and documentation. These parts are normally installed together because the software won't work without all of its component parts. + +The packager's job is to download the latest software from the programmer and make sure that it runs well with the latest version of the other software to go in the Debian distribution. This crucial task is why groups like Debian are so necessary. If Lewis-Moss does his job well, someone who installs Debian on his computer will not have any trouble using X Emacs. + +Lewis-Moss's job isn't exactly programming, but it's close. He has to download the source code, compile the program, run it, and make sure that the latest version of the source works correctly with the latest version of the Linux kernel and the other parts of the OS that keep a system running. The packager must also ensure that the program works well with the Debian-specific tools that make installation easier. If there are obvious bugs, he'll fix them himself. Otherwise, he'll work with the author on tracking down and fixing the problems. + +He's quite modest about this effort and says, "Most Debian developers don't write a whole lot of code for Debian. We just test things to make sure it works well together. It would be offensive to some of the actual programmers to hear that some of the Debian folks are writing the programs when they're actually not." + +He added that many of the packagers are also programmers in other projects. In his case, he writes Java programs during the day for a company that makes point-of-sale terminals for stores. + +Lewis-Moss ended up with this job in the time-honored tradition of committees and volunteer organizations everywhere. "I reported a bug in X Emacs to Debian. The guy who had the package at that time said, +'I don't want this anymore. Do you want it?' I guess it was random. It was sort of an accident. I didn't intend to become involved in it, but it was something I was interested in. I figured 'Hell, might as well.'" + +The Linux development effort moves slowly forward with thousands of stories like Lewis-Moss's. Folks come along, check out the code, and toss in a few contributions that make it a bit better for themselves. The mailing list debates some of the changes if they're controversial or if they'll affect many people. It's a very efficient system in many ways, if you can stand the heat of the debates. + +Most Americans are pretty divorced from the heated arguments that boil through the corridors of Washington. The view of the House and Senate floor is largely just for show because most members don't attend the debates. The real decisions are made in back rooms. + +The mailing lists that form the core of the different free software projects take all of this debate and pipe it right through to the members. While some discussions occur in private letters and even in the occasional phone call, much of the problem and controversy is dissected for everyone to read. This is crucial because most of the decisions are made largely by consensus. + +"Most of the decisions are technical and most of them will have the right answer or the best possible one at the moment," says Lewis-Moss. +"Often things back down to who is willing to do the work. If you're willing to do the work and the person on the other side isn't willing, then yours is the right one by definition." + +While the mailing list looks like an idealized notion of a congress for the Linux kernel development, it is not as perfect as it may seem. Not all comments are taken equally because friendships and political alliances have evolved through time. The Debian group elected a president to make crucial decisions that can't be made by deep argument and consensus. The president doesn't have many other powers in other cases. + +While the Linux and GNU worlds are dominated by their one great Sun King, many other open source projects have adopted a more modern government structure that is more like Debian. The groups are still fairly ad hoc and unofficial, but they are more democratic. There's less idolatry and less dependence on one person. + +The Debian group is a good example of a very loose-knit structure with less reliance on the central leader. In the beginning, Ian Murdock started the distribution and did much of the coordination. In time, the mailing list grew and attracted other developers like Bruce Perens. As Murdock grew busier, he started handing off work to others. Eventually, he handed off central control to Perens, who slowly delegated more of the control until there was no key maintainer left. If someone dies in a bus crash, the group will live on. + +Now a large group of people act as maintainers for the different packages. Anyone who wants to work on the project can take responsibility for a particular package. This might be a small tool like a game or a bigger tool like the C compiler. In most cases, the maintainer isn't the author of the software or even a hard-core programmer. The maintainer's job is to make sure that the particular package continues to work with all the rest. In many cases, this is a pretty easy job. Most changes in the system don't affect simple programs. But in some cases it's a real challenge and the maintainer must act as a liaison between Debian and the original programmer. Sometimes the maintainers fix the bugs themselves. Sometimes they just report them. But in either case, the maintainer must make sure that the code works. + +Every once and a bit, Debian takes the latest stable kernel from Torvalds's team and mixes it together with all of the other packages. The maintainers check out their packages and when everything works well, Debian presses another CD-ROM and places the pile of code on the net. This is a stable "freeze" that the Debian group does to make sure they've got a stable platform that people can always turn to. + +"Making a whole OS with just a crew of volunteers and no money is a pretty big achievement. You can never discount that. It's easy for Red Hat to do it. They're all getting paid. The fact is that Debian makes a good system and still continues to do so. I don't think that there've been that many unpaid, collaborative projects that complex before," says Perens. + +When Perens took over at Debian he brought about two major changes. The first was to create a nonprofit corporation called Software in the Public Interest and arrange for the IRS to recognize it as a bona fide charitable organization. People and companies who donate money and equipment can take them off their taxes. + +Perens says that the group's budget is about $10,000 a year. "We pay for hardware sometimes. Although a lot of our hardware is donated. We fly people to conferences so they can promote Debian. We have a trade show booth. In general we get the trade show space from the show for free or severely discounted. We also have the conventional PO boxes, accounting, phone calls. The project doesn't have a ton of money, but it doesn't spend a lot, either." + +The Debian group also wrote the first guidelines for acceptable open source software during Perens's time in charge. These eventually mutated to become the definition endorsed by the Open Source Initiative. This isn't too surprising, since Perens was one of the founders of the Open Source Initiative. + +Debian's success has inspired many others. Red Hat, for instance, borrowed a significant amount of work done by Debian when they put together their distribution, and Debian borrows some of Red Hat's tools. When Red Hat went public, it arranged for Debian members to get a chance to buy some of the company's stock reserved for friends and family members. They recognized that Debian's team of package maintainers helped get their job done. + +Debian's constitution and strong political structure have also inspired Sun, which is trying to unite its Java and Jini customers into a community. The company is framing its efforts to support customers as the creation of a community that's protected by a constitution. The old paradigm of customer support is being replaced by a more active world of customer participation and representation. + +Of course, Sun is keeping a close hand on all of these changes. They protect their source code with a Community Source License that places crucial restrictions on the ability of these community members to stray. There's no real freedom to fork. Sun's not willing to embrace Debian's lead on that point, in part because they say they're afraid that Microsoft will use that freedom to scuttle Java. + +2~ Apache's Corporate Core + +The Apache group is one of the more businesslike development teams in the free source world. It emerged in the mid-1990s when the World Wide Web was just blossoming. In the early years, many sites relied on web servers like the free version that came from the NCSA, the supercomputer center at the University of Illinois that helped spark the web revolution by writing a server and a browser. This code was great, but it rarely served all of the purposes of the new webmasters who were starting new sites and building new tools as quickly as they could. + +Brian Behlendorf, one of the founders of the Apache group, remembers the time. "It wasn't just a hobbyist kind of thing. We had need for commercial-quality software and this was before Netscape released its software. We had developed our own set of patches that we traded like baseball cards. Finally we said, 'We had so many paths that overlap. Why don't we create our own version and continue on our own.'" + +These developers then coalesced into a core group and set up a structure for the code. They chose the basic, BSD-style license for their software, which allowed anyone to use the code for whatever purpose without distributing the source code to any changes. Many of the group lived in Berkeley then and still live in the area today. Of course, the BSD-style license also made sense for many of the developers who were involved in businesses and often didn't want to jump into the open source world with what they saw as Stallman's absolutist fervor. Businesses could adopt the Apache code without fear that some license would force them to reveal their source code later. The only catch was that they couldn't call the product Apache unless it was an unmodified copy of something approved by the Apache group. + +Several members of the group went off and formed their own companies and used the code as the basis for their products. Sameer Parekh based the Stronghold server product on Apache after his company added the encryption tools used to protect credit card information. Others just used versions of Apache to serve up websites and billed others for the cost of development. + +In 1999, the group decided to formalize its membership and create a not-for-profit corporation that was devoted to advancing the Apache server source code and the open source world in general. New members can apply to join the corporation, and they must be approved by a majority of the current members. This membership gets together and votes on a board of directors who make the substantive decisions about the group. + +This world isn't much different from the world before the corporation. A mailing list still carries debate and acts as the social glue for the group. But now the decision-making process is formalized. Before, the members of the core group would assign responsibility to different people but the decisions could only be made by rough consensus. This mechanism could be bruising and fractious if the consensus was not easy. This forced the board to work hard to develop potential compromises, but pushed them to shy away from tougher decisions. Now the board can vote and a pure majority can win. + +This seriousness and corporatization are probably the only possible steps that the Apache group could take. They've always been devoted to advancing the members' interests. Many of the other open source projects like Linux were hobbies that became serious. The Apache project was always filled with people who were in the business of building the web. While some might miss the small-town kind of feel of the early years, the corporate structure is bringing more certainty and predictability to the realm. The people don't have to wear suits now that it's a corporation. It just ensures that tough decisions will be made at a predictable pace. + +Still, the formalism adds plenty of rigidity to the structure. An excited newcomer can join the mailing lists, write plenty of code, and move mountains for the Apache group, but he won't be a full member before he is voted in. In the past, an energetic outsider could easily convert hard work into political clout in the organization. Now, a majority of the current members could keep interlopers out of the inner circle. This bureaucracy doesn't have to be a problem, but it has the potential to fragment the community by creating an institution where some people are more equal than others. Keeping the organization open in practice will be a real challenge for the new corporation. + +1~ T-Shirts + +If there's a pantheon for marketing geniuses, then it must include the guy who realized people would pay $1 for several cents' worth of sugar water if it came in a shapely bottle blessed by the brand name CocaCola. It might also include the guy who first figured out that adding new blue crystals to detergent would increase sales. It is a rare breed that understands how to get people to spend money they don't need to spend. + +The next induction ceremony for this pantheon should include Robert Young, the CEO of Red Hat Software, who helped the Linux and the open source world immeasurably by finding a way to charge people for something they could get for free. This discovery made the man rich, which isn't exactly what the free software world is supposed to do. But his company also contributed a sense of stability and certainty to the Linux marketplace, and that was sorely needed. Many hard-core programmers, who know enough to get all of the software for free, are willing to pay $70 to Red Hat just because it is easier. While some may be forever jealous of the millions of dollars in Young's pocket, everyone should realize that bringing Linux to a larger world of computer illiterates requires good packaging and hand-holding. Free software wouldn't be anywhere if someone couldn't find a good way to charge for it. + +The best way to understand why Young ranks with the folks who discovered how to sell sugar water is to go to a conference like LinuxExpo. In the center of the floor is the booth manned by Red Hat Software, the company Young started in Raleigh, North Carolina, after he got through working in the computer-leasing business. Young is in his fifties now and manages to survive despite the fact that most of his company's devotees are much closer to 13. Red Hat bundles together some of the free software made by the community and distributed over the Net and puts it on one relatively easy-to-use CD-ROM. Anyone who wants to install Linux or some of its packages can simply buy a disk from Red Hat and push a bunch of keys. All of the information is on one CD-ROM, and it's relatively tested and pretty much ready to go. If things go wrong, Red Hat promises to answer questions by e-mail or telephone to help people get the product working. + +Red Hat sells their disk at prices that range from $29.95 to $149.95. That buys the user a pretty box, three CD-ROMs including some demonstration versions of other software, all of the source code, a manual, and some telephone or e-mail support. That is pretty much like the same stuff that comes in software boxes from a normal company. The manual isn't as nice as the manuals produced by Apple or Microsoft, but it's not too bad. + +The big difference is that no one needs to buy the CD-ROM from Red Hat. Anyone can download all of the software from the Net. A friend of mine, Hal Skinner, did it yesterday and told me, "I just plugged it in and the software downloaded everything from the Net. I got everything in the Red Hat 6.0 distribution, and it didn't cost me anything." + +Of course, Red Hat isn't hurt too much by folks who grab copies without paying for them. In fact, the company maintains a website that makes it relatively easy for people to do just that. Red Hat didn't write most of the code. They also just grabbed it from various authors throughout the Net who published it under the GNU General Public License. They grabbed it without paying for it, so they're not really put out if someone grabs from them. + +The ability to snag GPL'ed software from around the Net keeps their development costs much lower than Sun, Apple, or Microsoft. They never paid most of the authors of the code they ship. They just package it up. Anyone else can just go find it on the Net and grab it themselves. This pretty much guarantees that Red Hat will be in a commodity business. + +To make matters worse for Red Hat, the potential competitors don't have to go out onto the Net and reassemble the collection of software for themselves. The GPL specifically forbids people from placing limitations on redistributing the source code. That means that a potential competitor doesn't have to do much more than buy a copy of Red Hat's disk and send it off to the CD-ROM pressing plant. People do this all the time. One company at the exposition was selling copies of all the major Linux distributions like Red Hat, Slackware, and OpenBSD for about $3 per disk. If you bought in bulk, you could get 11 disks for $25. Not a bad deal if you're a consumer. + +So, on one side of the floor, Young had a flashy booth filled with workers talking about what you could get if you paid $50 or more for Red Hat's version 6.0 with new enhancements like GNOME. Just a few hundred feet away, a company was selling ripoff copies of the same CDs for $3. Any company that is able to stay in business in a climate like that must be doing something right. + +It's not much different from the supermarket. Someone can pay $1 or more for two liters of Coca-Cola, or they can walk over a few aisles and buy Kool-Aid and raw sugar. It may be much cheaper to buy the raw ingredients, but many people don't. + +Young is also smart enough to use the competition from other cheap disk vendors to his advantage. He can't do anything about the GPL restrictions that force him to share with knockoff competitors, so he makes the best of them. "When people complain about how much we're charging for free software, I tell them to just go to CheapBytes.com," he said at the Expo. This is just one of the companies that regularly duplicates the CDs of Red Hat and resells them. Red Hat often gets some heat from people saying that the company is merely profiting off the hard work of others who've shared their software with the GPL. What gives them the right to charge so much for other people's software? But Young points out that people can get the software for $3. There must be a rational reason why they're buying Red Hat. + +Of course, the two packages aren't exactly equal. Both the original and the knockoff CD-ROM may have exactly the same contents, but the extras are different. The Red Hat package comes with "support," a rather amorphous concept in the software business. In theory, Red Hat has a team of people sitting around their offices diligently waiting to answer the questions of customers who can't get Red Hat software to do the right thing. + +In practice, the questions are often so hard or nebulous that even the support team can't answer them. When I first tried to get Red Hat to run on an old PC, the support team could only tell me that they never promised that their package would run on my funky, slightly obscure Cyrix MediaGX chip. That wasn't much help. Others probably have had better luck because they were using a more standard computer. Of course, I had no trouble installing Red Hat on my latest machine, and I didn't even need to contact tech support. + +The Red Hat packages also come with a book that tries to answer some of the questions in advance. This manual describes the basic installation procedure, but it doesn't go into any detail about the software included in the distribution. If you want to know how to run the database package, you need to dig into the online support provided by the database's developers. + +Many people enjoy buying these extra packages like the manual and the support, even if they never use them. Red Hat has blossomed by providing some hand-holding. Sure, some programmers could download the software from the Internet on their own, but most people don't want to spend the time needed to develop the expertise. + +When I say "Red Hat software," I really mean free source software that Red Hat picked up from the Net and knit into a coherent set of packages that should be, in theory, pretty bug free, tested, and ready for use. Red Hat is selling some hand-holding and filtering for the average user who doesn't want to spend time poking around the Net, checking out the different versions of the software, and ensuring that they work well together. Red Hat programmers have spent some time examining the software on the CD-ROM. They've tested it and occasionally improved it by adding new code to make it run better. + +Red Hat also added a custom installation utility to make life easier for people who want to add Red Hat to their computer.~{ Er, I mean to say "add Linux" or "add GNU/Linux." "Red Hat" is now one of the synonyms for free software. }~ They could have made this package installation tool proprietary. After all, Red Hat programmers wrote the tool on company time. But Young released it with the GNU General Public License, recognizing that the political value of giving something back was worth much more than the price they could charge for the tool. + +This is part of a deliberate political strategy to build goodwill among the programmers who distribute their software. Many Linux users compare the different companies putting together free source software CDROMs and test their commitment to the free software ideals. Debian, for instance, is very popular because it is a largely volunteer project that is careful to only include certified free source software on their CD-ROMs. Debian, however, isn't run like a business and it doesn't have the same attitude. This volunteer effort and enlightened pursuit of the essence of free software make the Debian distribution popular among the purists. + +Distributors like Caldera, on the other hand, include nonfree software with their disk. You pay $29.95 to $149.95 for a CD-ROM and get some nonfree software like a word processor tossed in as a bonus. This is a great deal if you're only going to install the software once, but the copyright on the nonfree software prevents you from distributing the CD-ROM to friends. Caldera is hoping that the extras it throws in will steer people toward its disk and get them to choose Caldera's version of Linux. Many of the purists, like Richard Stallman, hate this practice and think it is just a not very subtle way to privatize the free software. If the average user isn't free to redistribute all the code, then there's something evil afoot. Of course, Stallman or any of the other software authors can't do anything about this because they made their software freely distributable. + +Young is trying to walk the line between these two approaches. Red Hat is very much in the business of selling CD-ROMs. The company has a payroll with more than a handful of programmers who are drawing nonvolunteer salaries to keep the distributions fresh and the code clean. But he's avoided the temptation of adding not-so-free code to his disks. This gives him more credibility with the programmers who create the software and give it away. In theory, Young doesn't need to ingratiate himself to the various authors of GPL-protected software packages. They've already given the code away. Their power is gone. In practice, he gains plenty of political goodwill by playing the game by their rules. + +Several companies are already making PCs with Linux software installed at the factory. While they could simply download the software from the Net themselves and create their own package, several have chosen to bundle Red Hat's version with their machines. Sam Ockman, the president of Penguin Computing, runs one of those companies. + +Ockman is a recent Stanford graduate in his early twenties and a strong devotee of the Linux and GPL world. He says he started his company to prove that Linux could deliver solid, dependable servers that could compete with the best that Sun and Microsoft have to offer. + +Ockman has mixed feelings about life at Stanford. While he fondly remembers the "golf course-like campus," he says the classes were too easy. He graduated with two majors despite spending plenty of time playing around with the Linux kernel. He says that the computer science department's hobbled curriculum drove him to Linux. "Their whole CS community is using a stupid compiler for C on the Macintosh," he says."Why don't they start you off on Linux? By the time you get to [course] 248, you could hack on the Linux kernel or your own replacement kernel. It's just a tragedy that you're sitting there writing virtual kernels on a Sun system that you're not allowed to reboot." + +In essence, the computer science department was keeping their kids penned up in the shallow end of the pool instead of taking them out into the ocean. Ockman found the ocean on his own time and started writing GPL-protected code and contributing to the political emergence of free software. + +When Ockman had to choose a version of Linux for his Penguin computers, he chose Red Hat. Bob Young's company made the sale because it was playing by the rules of the game and giving software back with a GPL. Ockman says, "We actually buy the box set for every single one. Partially because the customers like to get the books, but also to support Red Hat. That's also why we picked Red Hat. They're the most free of all of the distributions." + +Debian, Ockman concedes, is also very free and politically interesting, but says that his company is too small to support multiple distributions. "We only do Red Hat. That was a very strategic decision on our part. All of the distributions are pretty much the same, but there are slight differences in this and that. We could have a twelve-person Debian group, but it would just be a nightmare for us to support all of these different versions of Linux." + +Of course, Penguin Computing could have just bought one Red Hat CD-ROM and installed their software on all of the machines going out the door. That would have let them cut their costs by about $50. The GPL lets anyone install the software as often as they wish. But this wouldn't be pure savings because Ockman is also offloading some of his own work when he bundles a Red Hat package with his computers. He adds, "Technically the box set I include allows customers to call Red Hat, but no one ever does, nor do we expect them or want them to call anyone but us." In essence, his company is adding some extra support with the Red Hat box. + +The support is an important add-on that Young is selling, but he realized long ago that much more was on sale. Red Hat was selling an image, the sense of belonging, and the indeterminant essence of cool. Soda manufacturers realized that anyone could put sugar and water in a bottle, but only the best could rise above the humdrum nature of life by employing the best artists in the land to give their sugar water the right hip feeling. So Young invested in image. His T-shirts and packages have always been some of the most graphically sophisticated on the market. While some folks would get girlfriends or neighbors to draw the images that covered their books and CDs, Red Hat used a talented team to develop their packaging. + +Young jokes about this. He said he was at a trade show talking to a small software company that was trying to give him one of their free promotional T-shirts. He said, "Why don't you try giving away the source code and selling the T-shirts?" + +At the LinuxExpo, Red Hat was selling T-shirts, too. One slick number retailing for $19 just said "The Revolution of Choice" in Red Hat's signature old typewriter font. Others for sale at the company's site routinely run for $15 or more. They sucked me in. When I ordered my first Red Hat disk from them, I bought an extra T-shirt to go with the mix. + +The technology folks at Red Hat may be working with some cuttingedge software that makes the software easy to install, but the marketing group was stealing its plays from Nike, Pepsi, and Disney. They weren't selling running shoes, sugar water, or a ride on a roller coaster--they were selling an experience. Red Hat wasn't repackaging some hacker's science project from the Net, it was offering folks a ticket to a revolution. If the old 1960s radicals had realized this, they might have been able to fund their movement without borrowing money from their square parents. Selling enough groovy, tie-died T-shirts would have been enough.~{ Apple is an old hand at the T-shirt game, and internal projects create T-shirts to celebrate milestones in development. These images were collected in a book, which may be as good a technical history of Apple as might exist. Many projects, including ones that failed, are part of the record. }~ + +Many of the other groups are part of the game. The OpenBSD project sold out of their very fashionable T-shirts with wireframe versions of its little daemon logo soon after the beginning of the LinuxExpo. They continue to sell more T-shirts from their website. Users can also buy CD-ROMs from OpenBSD. + +Several attendees wear yellow copyleft shirts that hold an upsidedown copyright logo <:=Copyleft> arranged so the open side points to the left. + +The most expensive T-shirt at the show came with a logo that imitated one of the early marketing images of the first Star Wars movie. The shirt showed Torvalds and Stallman instead of Han Solo and Luke Skywalker under a banner headline of "OS Wars." The shirt cost only $100, but "came with free admission to the upcoming Linux convention in Atlanta." + +The corporate suits, of course, have adjusted as best they can. The IBM folks at the show wore identical khaki outfits with nicely cut and relatively expensive polo shirts with IBM logos. A regular suit would probably stick out less than the crisp, clean attempt to split the difference between casual cool and button-down business droid. + +Of course, the T-shirts weren't just about pretty packaging and slick images. The shirts also conveyed some information about someone's political affiliations in the community and showed something about the person's technical tastes. Sure, someone could wear an OpenBSD shirt because they liked the cute little daemon logo, but also because they wanted to show that they cared about security. The OpenBSD project began because some users wanted to build a version of UNIX that was much more secure. The group prides itself on fixing bugs early and well. Wearing an OpenBSD shirt proclaims a certain alliance with this team's commitment to security. After all, some of the profits from the shirts went to pay for the development of the software. Wearing the right T-shirt meant choosing an alliance. It meant joining a tribe. + +Young is keenly aware that much of his target market is 13-year-old boys who are flexing their minds and independence for the first time. The same images of rebellion that brought James Dean his stardom are painted on the T-shirts. Some wear shirts proclaiming TOTAL WORLD DOMINATION SOON. Raging against Microsoft is a cliché that is avoided as much as it is still used. The shirts are a mixture of parody, bluster, wit, and confidence. Of course, they're usually black. Everyone wears black. + +Ockman looks at this market competition for T-shirts and sees a genius. He says, "I think Bob Young's absolutely brilliant. Suddenly he realized that there's no future in releasing mainframes. He made a jump after finding college kids in Carolina [using Linux]. For him to make that jump is just amazing. He's a marketing guy. He sat down and figured it out. + +"Every time I hear him talk," Ockman says about Young, "he tells a different story about ketchup. If you take people who've never had ketchup before in their life and you blindly feed them ketchup, they have no taste for ketchup. They don't like it." If you feed them ketchup over time, they begin to demand it on their hamburgers. + +"No one who's never had Coca-Cola before would like it," Ockman continues. "These things are purely a branding issue. It has to be branded for cool in order for people to sit down and learn everything they have to know." + +In essence, Young looked around and saw that a bunch of scruffy kids were creating an OS that was just as good, if not better, than the major OSs costing major sums of money. This OS was, best of all, free for all comers. The OS had a problem, though. The scruffy kids never marketed their software. The deeply intelligent, free-thinking hackers picked up on how cool it was, but the rest of society couldn't make the jump. The scruffy kids didn't bother to try to market it to the rest of society. They were artists. + +Most people who looked at such a situation would have concluded that this strange clan of techno-outsiders was doomed to inhabit the periphery of society forever. There was no marketing of the product because there was no money in the budget and there would never be money in the budget because the software was free. Young recognized that you could still market the software without owning it. You could still slap on a veneer of cool without writing the code yourself. Sugar water costs practically nothing, too. + +Young's plan to brand the OS with a veneer of cool produced more success than anyone could imagine. Red Hat is by far the market leader in providing Linux to the masses, despite the fact that many can and do "steal" a low-cost version. Of course, "steal" isn't the right word, because Red Hat did the same thing. "Borrow" isn't right, "grab" is a bit casual, and "join in everlasting communion with the great free software continuum" is just too enthusiastic to be cool. + +In August 1999, Red Hat completed an initial public offering of the shares of its stock, the common benchmark for success in the cash-driven world of Silicon Valley. Many of the principals at Red Hat got rich when the stock opened at $14 a share on August 11 and closed the day at $52. Bob Young, the CEO of Red Hat, started the day with a bit more than 9 million shares or 15 percent of the company. Technically, not all of this was his because he had distributed some (3,222,746 shares, to be exact) to his wife, Nancy, and put some more (1,418,160) in various trusts for his children. Still, this cut adds up to about $468 million. Marc Ewing, executive vice president and chief technology officer, also ended up with a similar amount of money divided between trusts and his own pocket. Matthew Sulzik, the president, who joined in November 1998, got a bit less (2,736,248 shares) in his pot, but he was a relative newcomer. The big investors, Greylock IX Limited Partnership, Benchmark Capital Partners II, and Intel, split up the big part of the rest of the shares. + +Now, what happened to the boys who wrote the code? Did Richard Stallman get any of it? Did Linus Torvalds? Some of the major developers like Alan Cox and David Miller already work for Red Hat, so they probably drew shares out of the employee pool. There are thousands of names, however, who aren't on anyone's radar screen. They've written many lines of code for naught. + +Red Hat tried to alleviate some of the trouble by allocating 800,000 shares to "directors, officers and employees of Red Hat and to open source software developers and other persons that Red Hat believes have contributed to the success of the open source software community and the growth of Red Hat." This group, occasionally known as the "friends and family," was a way to reward buddies. Red Hat drew up a list of major contributors to the open source distribution and sent out invitations. + +"Dear open source community member," began the e-mail letter that Red Hat sent to about 1,000 people. + +_1 In appreciation of your contribution to the open source community, Red Hat is pleased to offer you this personal, non-transferable, opportunity. . . . Red Hat couldn't have grown this far without the ongoing help and support of the open source community, therefore, we have reserved a portion of the stock in our offering for distribution online to certain members of the open source community. We invite you to participate. + +Many programmers and developers were touched by the thoughtfulness. The list probably wasn't long enough or inclusive enough to pull everyone into the circle, but it did do a good job of spreading the wealth around. The plan began to backfire, however, when E*Trade began to parcel out the shares. Everyone who made it onto the list filled out a form listing their net worth, and E*Trade attempted to decide who was a sophisticated investor and who wasn't. Some folks who had little money (perhaps because they spent too much time writing free software) were locked out. + +One contributor, C. Scott Ananian, wrote about his rejection in Salon magazine, "I filled out the eligibility questionnaire myself. I knew they were trying to weed out inexperienced investors, so on every question that related to experience, I asserted the maximum possible. I knew what I was doing. And it was my money, anyway--I had a God-given right to risk it on as foolhardy a venture as I liked." + +The article drew plenty of flack and murmurs of a class action lawsuit from the disenfranchised. A discussion broke out on Slashdot, the hardcore site for nerds. Some defended E*Trade and pointed out that a Red Hat IPO was not a lock or a guarantee of wealth. Too many grandmothers had been burned by slick-talking stock salesmen in the past. E*Trade had to block out the little guys for their own protection. Stock can go down as well as up. + +Steve Gilliard, a "media operative" at the website NetSlaves, wrote, +"If the Red Hat friends and family group were judged by normal standards, there is no brokerage in the U.S. which would let many of them buy into an IPO. In many cases, they would be denied a brokerage account. Poor people are usually encouraged to make other investments, like paying off Visa and Master Card." + +Others saw it as a trick to weed out the pool and make sure that E*Trade could allocate the shares to its buddies. The more the small guys were excluded, the more the big guys would get for their funds. In the end, the complaints reached some ears. More people were able to sneak in, but the circle was never big enough for all. + +2~ World Domination Pretty Soon? + +Red Hat's big pool of money created more than jealousy in the hearts and minds of the open source world. Jealousy was an emotional response. Fear of a new Microsoft was the rational response that came from the mind. Red Hat's pool of cash was unprecedented in the open source community. People saw what the pile of money and the stock options did to Bill Gates. Everyone began to wonder if the same would happen to Red Hat. + +On the face of it, most open source developers have little to worry about. All the code on the Red Hat disk is covered with a General Protection License and isn't going to become proprietary. Robert Young has been very open about his promise to make sure that everything Red Hat ships falls under the GPL. That includes the distribution tools it writes in-house. + +The GPL is a powerful force that prevents Red Hat from making many unilateral decisions. There are plenty of distributions that would like to take over the mantle of the most popular version of Linux. It's not hard. The source code is all there. + +But more savvy insiders whisper about a velvet-gloved version of Microsoft's "embrace and extend." The company first gains control by stroking the egos and padding the wallets of the most important developers. + +In time, other Red Hat employees will gradually become the most important developers. They're paid to work on open source projects all day. They'll gradually supplant the people who have day jobs. They'll pick up mindshare. Such a silent coup could guarantee that Red Hat will continue to receive large influxes of cash from people who buy the CD-ROMs. + +There are parts of this conspiracy theory that are already true. Red Hat does dominate the United States market for Linux and it controls a great deal of the mindshare. Their careful growth supported by an influx of cash ensured a strong position in the marketplace. + +In November 1999, Red Hat purchased Cygnus Solutions, the other major commercial developer of GPL-protected software, which specialized in maintaining and extending the compiler, GCC. Red Hat had 235 employees at the time and Cygnus Solutions had 181. That's a huge fraction of the open source developers under one roof. The Cygnus press release came with the headline, RED HAT TO ACQUIRE CYGNUS AND CREATE OPEN SOURCE POWERHOUSE. + +To make matters worse, one of the founders of Cygnus, Michael Tiemann, likes to brag that the open source software prevents competitors from rising up to threaten Cygnus. The GPL guarantees that the competitors will also have to publish their source, giving Cygnus a chance to stay ahead. In this model, any company with the money and stamina to achieve market dominance isn't going to be knocked down by some kids in a garage. + +Those are scary confluences. Let's imagine that the conspiracy theory is completely borne out. Let's imagine that all of the other distributions wither away as corporate and consumer clients rush head over heels to put Red Hat on their machines. Red Hat becomes the default in much the same way that Microsoft is the default today. Will Red Hat have the power that Microsoft has today? + +Will they be able to force everyone to have a Red Hat Network logon button on their desktop? Perhaps. Many people are going to trust Red Hat to create a good default installation. Getting software to be loaded by default will give them some power. + +Can they squeeze their partners by charging different rates for Linux? Microsoft is known to offer lower Windows prices to their friends. This is unlikely. Anyone can just buy a single Red Hat CDROM from a duplicator like CheapBytes. This power play won't work. + +Can they duplicate the code of a rival and give it away in much the same way that Microsoft created Internet Explorer and "integrated" it into their browser? You bet they can. They're going to take the best ideas they can get. If they're open source, they'll get sucked into the Red Hat orbit. If they're not, then they'll get someone to clone them. + +Can they force people to pay a "Red Hat tax" just to upgrade to the latest software? Not likely. Red Hat is going to be a service company, and they're going to compete on having the best service for their customers. Their real competitor will be companies that sell support contracts like LinuxCare. Service industries are hard work. Every customer needs perfect care or they'll go somewhere else next time. Red Hat's honeymoon with the IPO cash will only last so long. Eventually, they're going to have to earn the money to get a return on the investment. They're going to be answering a lot of phone calls and e-mails. + +1~ New + +Most of this book frames the entire free source movement as something new and novel. The notion of giving away free source code is something that seems strange and counterintuitive. But despite all of the gloss and excitement about serious folks doing serious work and then just giving it away like great philanthropists, it's pretty easy to argue that this has all been done before. The software world is just rediscovering secrets that the rest of the world learned long ago. + +Giving things away isn't a radical idea. People have been generous since, well, the snake gave Eve that apple. Businesses love to give things away in the hope of snagging customers. Paper towel manufacturers give away towel hardware that only accepts paper in a proprietary size. Food companies give coolers and freezers to stores if the stores agree not to stock rival brands in them. + +In fact, most industries do more than just give away free gifts to lure customers. Most share ideas, strategies, and plans between competitors because cooperation lets them all blossom. Stereo companies make components that interoperate because they adhere to the same standard. Lawyers, engineers, and doctors are just some of the people who constantly trade ideas and solutions with each other despite the fact that they work as competitors. A broad, central, unowned pool of knowledge benefits everyone in much the same way that it helps the free software community. + +The real question is not "Who do these pseudo-commie pinkos think they are?" It's "What took the software industry so long to figure this out?" How did the programmers who are supposedly a bunch of whip-smart, hard-core libertarians let a bunch of lawyers lead them down a path that put them in a cubicle farm and prevented them from talking to each other? + +Recipes are one of the closest things to software in the material world, and many restaurants now share them widely. While chefs once treated them like industrial secrets, they now frequently give copies to magazines and newspapers as a form of publicity. The free advertisement is worth more than the possibility that someone will start cloning the recipe. The restaurants recognized that they were selling more than unique food. Ambiance, service, and quality control are often more in demand than a particular recipe. + +When the free software industry succeeds by sharing the source code now, it's capitalizing on the fact that most people don't want to use the source code to set up a take-no-prisoners rivalry. Most people just want to get their work done. The cost of sharing source code is so low that it doesn't take much gain to make it worth the trouble. One bug fix or tiny feature could pay for it. + +2~ Shareware Is Not Open Source and Open Source Isn't Free + +The software industry has been flirting with how to make money off of the low cost of distributing its product. The concept of shareware began long before the ideological free software movement as companies and individual developers began sharing the software as a cheap form of advertisement. Developers without the capital to start a major marketing campaign have passed around free versions of their software. People could try it and if it met their needs, they could pay for it. Those who didn't like it were honor-bound to erase their version. + +Shareware continues to be popular to this day. A few products have made a large amount of money with this approach, but most have made very little. Some people, including many of the major companies, distribute their own crippled version of their product so people can try it. Crucial functions like the ability to print or save a document to the disk are usually left out as a strong encouragement to buy the real version. + +Of course, free source products aren't the same thing as shareware because most shareware products don't come with the source code. Programmers don't have the ability or the right to modify them to do what they want. This has always been one of the biggest selling points to the high-end marketplace that knows how to program. + +In fact, free source software is not dirt cheap either. Anyone who's been around the open software community for a time realizes that you end up having to pay something for the lunch. Keeping some costs hidden from the consumer isn't new, and it still hasn't gone away in the free software world. The costs may not be much and they may be a much better deal than the proprietary marketplace, but the software still costs something. + +The simplest cost is time. Free software is often not as polished as many commercial products. If you want to use many of the tools, you must study manuals and learn to think like a programmer. Some manuals are quite nice, but many are cursory. This may change as the free software movement aims to dominate the desktop, but the manuals and help aren't as polished as the solutions coming out of Microsoft. Of course, one free software devotee told me by way of apology, "Have you actually tried using Microsoft's manuals or help? They suck, too." + +Even when it is polished, free source software requires time to use. The more options that are available, the more time it takes to configure the software. Free source gives tons of options. + +The lack of polish isn't usually a problem for programmers, and it's often not an extra cost either. Programmers often need to learn a system before they find a way to revise and extend it to do what their boss wants it to do. Learning the guts of a free software package isn't much of an extra cost because they would be just trying to learn the guts of a Microsoft product instead. Plus, the source code makes the process easier. + +Still, most users including the best programmers end up paying a company like Red Hat, Caldera, or a group like OpenBSD to do some of the basic research in building a Linux system. All of the distribution companies charge for a copy of their software and throw in some support. While the software is technically free, you pay for help to get it to work. + +If the free source code is protected by the GNU General Public License, then you end up paying again when you're forced to include your changes with the software you ship. Bundling things up, setting up a server, writing documentation, and answering users' questions take time. Sure, it may be fair, good, and nice to give your additions back to the community, but it can be more of a problem for some companies. Let's say you have to modify a database to handle some proprietary process, like a weird way to make a chemical or manufacture a strange widget. Contributing your source code back into the public domain may reveal something to a competitor. Most companies won't have this problem, but being forced to redistribute code always has costs. + +Of course, the cost of this is debatable. Tivo, for instance, is a company that makes a set-top box for recording television content on an internal hard disk. The average user just sees a fancy, easy-to-use front end, but underneath, the entire system runs on the Linux operating system. Tivo released a copy of the stripped-down version of Linux it ships on its machines on its website, fulfilling its obligation to the GNU GPL. The only problem I've discovered is that the web page (www.tivo.com/linux/) +is not particularly easy to find from the home page. If I hadn't known it was there, I wouldn't have found it. + +Of course, companies that adopt free source software also end up paying in one way or another because they need to hire programmers to keep the software running. This isn't necessarily an extra cost because they would have hired Microsoft experts anyway. Some argue that the free source software is easier to maintain and thus cheaper to use, but these are difficult arguments to settle. + +In each of these ways, the free software community is giving away something to spark interest and then finding a way to make up the cost later. Some in the free software community sell support and others get jobs. Others give back their extensions and bug fixes. A running business is a working ecology where enough gets reinvested to pay for the next generation of development. The free source world isn't a virtual single corporation like the phone company or the cable business, but it can be thought of in that way. Therefore, the free software isn't much different from the free toasters at the banks, the free lollipops at the barber's, or the free drugs from the neighborhood pusher. + +If you want to think bigger, it may be better to see the free software world as closer to the great socialized resources like the ocean, the freeway system, or the general utility infrastructure. These treat everyone equally and provide a common basis for travel and commerce. + +Of course, that's the most cynical way that free software is no different from many of the other industries. There are other ways that the free source vision is just a return to the way that things used to be before the software industry mucked them up. The problem is that a mixture of licensing, copyright, and patent laws have given the software industry more ways to control their product than virtually any other industry. The free source movement is more a reaction against these controls than a brave new experiment. + +2~ Would You License a Car from These Guys? + +Comparing the software industry to the car industry is always a popular game. Normally, the car industry looks a bit poky and slow off the mark because they haven't been turning out new products that are twice as fast and twice as efficient as last year's products. But many parts of the car industry are bright, shining examples of freedom compared to their software equivalents. + +Consider the Saturday afternoon mechanic who likes to change the oil, put in a new carburetor, swap the spark plugs, and keep the car in running order. The car guy can do all of these things without asking the manufacturer for permission. There's nothing illegal about taking apart an engine or even putting an entirely new, souped-up engine in your car. The environmental protection laws may prohibit adding engines that spew pollutants, but the manufacturer is out of the loop. After all, it's your car. You paid for it. + +Software is something completely different. You don't own most of the software you paid for on your computer. You just own a "license" to use it. The difference is that the license can be revoked at any time if you don't follow the rules, and some of the rules can be uncomfortable or onerous. There's nothing wrong with this mechanism. In the right hands, it can be very pleasant. The Berkeley Software Distribution license, for instance, has no real requirements except that you credit the university for its contributions, and the university just revoked that requirement. The GNU Public License is much stricter, but only if you want to change, modify, and distribute the code. In that case, you're only prevented from keeping these changes a secret. That's not a big problem for most of us. + +Other licenses are even more stricter. One Microsoft license prevents the programmer from trying to figure out how the software works inside by saying "LICENSEE may not reverse engineer, decompile or disassemble Microsoft Agent." These clauses are popular and found in many software licenses. The company lawyers argue that they ostensibly prevent people from stealing the secrets that are bound up in the software. + +These licenses have been interpreted in different ways. The video game maker Accolade, for instance, won its case against the manufacturer Sega by arguing that reverse engineering was the only way to create a clone. If companies couldn't clone, there would be no free market. On the other hand, Connectix lost some of the early court battles when Sony sued them for creating a software clone of the PlayStation. The judge decided that Connectix had violated Sony's copyright when they made a copy to study for reverse engineering. In February 2000, an appeals court struck down this ruling, freeing Connectix to sell the emulator again. By the time you read this, the legal landscape will probably have changed again. + +In practice, license clauses like this only hurt the honest programmers who are trying to deal with a nasty bug. Most people don't want to steal secrets, they just want to be able to make their software work correctly. Decompiling or disassembling the code is a good way to figure out exactly what is going on inside the software. It can save hours and plenty of grief. + +The license even borders on the absurd because the phrase "reverse engineer" is so ambiguous. It may be possible to argue that just learning to use a piece of software is reverse engineering it. Learning how a feature works means learning to predict what it will do. In many cases, the bugs and the glitches in software mean that the features are often a bit unpredictable and only a bit of black-box reverse engineering can teach us how they work. That's not much different from learning the steps that happen inside. Fiddling with shrink-wrapped software is like fiddling with a black box. + +Imagine that General Motors or Ford sold their cars with such a donot-reverse-engineer license. They would either weld the hood shut or add on a special lock and only give the keys to registered dealers who would sign lots of forms that guaranteed that they would keep the workings of the cars secret. No one could change the spark plugs, chop the hood, add a nitro tank, or do anything with the car except drive it around in a completely boring way. Some lawyers at the car companies might love to start shipping cars with such a license. Think how much more they could charge for service!The smart executives might realize that they were hurting their biggest fans, the people who liked to tune, tweak, fiddle, and futz with their machines. They would be stripping away one of the great pleasures of their devices and slowly but surely turning the cars into commodity items that put the owners in legal strait-jackets. + +Some software companies take the licensing requirements to even greater extremes. One of the most famous examples is the Microsoft Agent software, which allows a programmer to create little animated characters that might give instructions. Some versions of Microsoft Office, for instance, come with a talking paper clip that points out new and improved features. Microsoft released this technology to the general programmer community hoping that people would add the tools to their software and create their own talking characters. + +The software is free and Microsoft posts a number of nice tools for using the code on their website. They couldn't leave well enough alone, though, because anyone who wants to use the tool with their code needs to print out and file a separate license with the Microsoft legal staff. Many of the clauses are pretty simple and do useful things like force anyone using the software to try to keep their versions up to date. But the most insidious one ensures that no one will + +_1 "...use the Character Animation Data and Image Files to disparage Microsoft, its products or services or for promotional goods or for products which, in Microsoft's sole judgment, may diminish or otherwise damage Microsoft's goodwill in the SOFTWARE PRODUCT including but not limited to uses which could be deemed under applicable law to be obscene or pornographic, uses which are excessively violent, unlawful, or which purpose is to encourage unlawful activities." + +In other words, if you want to make the cute animated cartoon say something unkind about Microsoft, Microsoft can simply shut you down. And don't even think about creating a little animated marijuana cigarette for your Grateful Dead softwarepalooza. It's practically illegal just to think bad thoughts in the vicinity of a computer running Microsoft Agent. + +Most software licenses are not as bad or as restrictive as the Microsoft Agent license, but many cause their own share of grief. Companies continue to try to come up with more restrictive solutions for combating piracy, and in the end they bother the legitimate users. People are often buying new computers or upgrading a hard disk, and both of these acts require making a copy of old software. Companies that make it too difficult to do these things end up rubbing salt in the wounds of legitimate users who lose a hard disk. + +In this context, the free source world isn't a new flowering of mutual respect and sharing, it's just a return to the good old days when you could take apart what was yours. If you bought the software, you can fiddle with it. This isn't the Age of Aquarius, it is the second coming of Mayberry R.F.D., Home Improvement, and the Dukes of Hazzard. + +2~ Other Professions Were Open from the Start + +This comparison doesn't have to be limited to the car guys in the garage. Many other professions freely share ideas and operate without the very restrictive covenants of the software industry. The legal business is a great example of a world where people are free to beg, borrow, and steal ideas from others. If someone finds a neat loophole, they can't patent it or prevent others from exploiting it. Once other lawyers hear about it, they'll be filing their own lawsuits for their own clients. ~{ 1The legal system is not perfect. Too many cases are now filed under seal, and the courts are too willing to act as private dispute agencies for big corporations. When the law is locked up in this way, it is not a great example for the free software world. }~ + +Consider the world of tobacco liability. Once one state advanced the legal opinion that the tobacco companies were liable for the cost of treating any disease that might emerge from smoking cigarettes, the other states and plenty of lawyers were able to jump on board. Once they settled, the lawyers turned their sights on the gun companies. By the time you read this, they'll probably have moved on to the fat delivery vehicle manufacturers in the fast-food industry and the stress induction groups, aka your employer. The exercise reduction industry, made up of a megalomaniacal consortium of moviemakers, television producers, and, yes, book writers, must be on someone's list.~{ The author recommends that you read this on the Stairmaster or a stationary bike, but only after checking with a registered doctor and consulting with a licensed exercise specialist who is thoroughly familiar with your medical history. These medical specialists will be able to tune your workout to provide the optimal fitness benefits so you can live long enough to get Alzheimer's disease. }~ + +Free source folks are just as free to share ideas. Many of the rival Linux and BSD distributions often borrow code from each other. While they compete for the hearts and minds of buyers, they're forced by the free source rules to share the code. If someone writes one device driver for one platform, it is quickly modified for another. + +The proprietary software world moves slowly in comparison. They keep their ideas secret and people spend thousands of lawyer years on projects just keeping the various licenses straight. Code is shared, but only after lawyers vet the contracts. + +The legal industry is also a good example of how the free sharing of ideas, techniques, and strategies does not hurt the income of the practitioners. In fact, lawyers have managed to carve themselves a very nice slice of the nation's income. Most are not as rich as the lucky few who beat the tobacco companies, but they do all right. + +2~ Copyright, Tool of Dictators + +It would be unfair to the software industry to portray the rest of society as much more sharing and giving. Most of the other industries are frantically using the legal system and any other means necessary to stay ahead of their competitors. It's just part of doing business. + +One of the best examples is content production, which is led by mega-companies like Disney. In recent years, Hollywood has worked hard to get copyright laws changed so that the copyright lasts 95 years instead of 75 years. In 1998, Congress passed the Sonny Bono Copyright Term Extension Act of 1998 (CTEA) that kept works published after 1923 from passing into the public domain until 2019. The industry feels that this gives them the protection to keep creating new items. Creations like Mickey Mouse and Snow White will continue to live in the very safe place controlled by Disney and not fall into the evil hands of the public domain. + +Several Harvard professors, Larry Lessig, Charles Nesson, and Jonathan Zittrain of the Berkman Center for Internet & Society at Harvard Law School, and Geoffrey Stewart of the Boston law firm Hale and Dorr filed a lawsuit contesting the act by pointing out that the Constitution provides for a "limited" term. Artists, authors, and creators were given copyright protection, but it was only for a limited amount of time. Afterward, the society could borrow and use the work freely. + +There's little doubt that the major Hollywood producers recognize the value of a well-stocked collection of public domain literature. Movies based on works by William Shakespeare, Henry James, and Jane Austen continue to roll out of the studios to the welcoming patrons who buy tickets despite knowing how the story ends. Disney itself built its movie franchise on shared fables like Sleeping Beauty or Snow White. Very few of Disney's animated films (The Lion King was one of the first ones) were created in-house from a clean piece of paper. Most were market-tested for acceptance by their years in the public domain. Of course, Disney only pays attention to this fact when they're borrowing an idea to create their own version, not when they're defending the copyright of their own creations. They want to take, not give. + +The movie industry, like the proprietary software business, seems to forget just how valuable a shared repository of ideas and solutions can be. In this context, the free source movement isn't an explosion of creative brilliance or a renaissance of cooperation, it's just a return to the good old days when Congress wouldn't slavishly answer the whims of the content industry. If a theater owner wanted to put on a Shakespeare play, the text was in the public domain. If someone wanted to rewrite Jane Austen and create the movie Clueless, they were free to do so. In the good old days, copyright faded after a limited amount of time and the public got something back for granting a monopoly to the artist. In the good old days, the artist got something back, too, when the monopoly of other artists faded away. + +It's not like this brave new world of total copyright protection has generated superior content. The so-called original movies aren't that different. All of the action movies begin with some death or explosion in the first two minutes. They all run through a few car chases that lead to the dramatic final confrontation. The television world is filled with 30-minute sitcoms about a bunch of young kids trying to make it on their own. It's sort of surprising that Hollywood continues to suggest that the copyright laws actually promote creativity. + +It's not hard to believe that we might be better off if some of the characters were protected by an open source license. Superman and Batman have both gone through several decades of character morphing as the artists and writers assigned to the strips change. Of course, that change occurred under the strict control of the corporation with the copyright. + +The thousands of fan novels and short stories are better examples. Many fans of movies like Star Trek or Star Wars often write their own stories using the protected characters without permission. Most of the time the studios and megalithic corporations holding the copyright look the other way. The work doesn't make much money and is usually born out of love for the characters. The lawyers who have the job of defending the copyrights are often cool enough to let it slide. + +Each of these novels provides some insight into the characters and also the novelist. While not every novelist is as talented as the original authors, it can still be fun to watch the hands of another mold the characters and shape his or her destiny. The world of the theater has always accepted the notion that directors and actors will fiddle with plays and leave their own marks on them. Perhaps it wouldn't be so bad if writers could have the same latitude after the original author enjoyed a short period of exclusivity. + +There are many ways in which the free software world is strange and new to society, but sharing ideas without limitations is not one of them. Almost all businesses let people tinker and change the products they buy. The software industry likes to portray itself as a bunch of libertarians who worship the free market and all of its competition. In reality, the leading firms are riding a wave of power-grabbing that has lasted several decades. The firms and their lawyers have consistently interpreted their rules to allow them to shackle their customers with stronger and stronger bonds designed to keep them loyal and everspending. + +This is all part of a long progression that affects all industries. Linus Torvalds explained his view of the evolution when he told the San Jose Mercury-News, "Regardless of open source, programs will become really cheap. Any industry goes through three phases. First, there's the development of features people need. Then there's the frills-andupgrade phase, when people buy it because it looks cool. Then there's the everybody-takes-it-for-granted phase. This is when it becomes a commodity. Well, we're still in the look-cool-and-upgrade stage. In 10 or 15 years you'll be happy with software that's 5 years old. Open source is one sign that we're moving in that direction." + +In this light, the free software revolution isn't really a revolution at all. It's just the marketplace responding to the overly greedy approaches of some software companies. It's just a return to the good old days when buying something meant that you owned it, not that you just signed on as a sort of enlightened slave of the system. + +1~ Nations + +Microsoft is an American company. Bill Gates lives in Washington State and so do most of the programmers under his dominion. The software they write gets used around the globe in countries big and small, and the money people pay for the software comes flooding back to the Seattle area, where it buys huge houses, designer foods, and lots of serious and very competitive consumption. Through the years, this sort of economic imperialism has built the great cities of Rome, London, Tokyo, Barcelona, and many other minor cities. History is just a long series of epochs when some company comes up with a clever mechanism for moving the wealth of the world home to its cities. Britain relied on opium for a while. Rome, it might be said, sold a legal system. Spain trafficked in pure gold and silver. Microsoft is selling structured information in one of the most efficient schemes yet. + +Of course, these periods of wealth-building invariably come to an abrupt end when some army, which is invariably described as "ragtag," shows up to pillage and plunder. The Mongolian hordes, the Visigoths, and the Vikings are just a few of the lightweight, lean groups that appeared over the horizon and beat the standing army of the fat and complacent society. This was the cycle of boom and doom that built and trashed empire after dynasty after great society. + +Perhaps it's just a coincidence that Linus Torvalds has Viking blood in him. Although he grew up in Finland, he comes from the minority of the population for whom Swedish is the native tongue. The famous neutrality during World War II, the lumbering welfare states, the Nobel Peace Prize, and the bays filled with hiding Russian submarines give the impression that the Viking way is just a thing of the past, but maybe some of the old hack and sack is still left in the bloodlines. + +The Linux movement isn't really about nations and it's not really about war in the old-fashioned sense. It's about nerds building software and letting other nerds see how cool their code is. It's about empowering the world of programmers and cutting out the corporate suits. It's about spending all night coding on wonderful, magnificent software with massive colonnades, endless plazas, big brass bells, and huge steam whistles without asking a boss "Mother, may I?" It's very individualistic and peaceful. + +That stirring romantic vision may be moving the boys in the trenches, but the side effects are beginning to be felt in the world of global politics. Every time Linux, FreeBSD, or OpenBSD is installed, several dollars don't go flowing to Seattle. There's a little bit less available for the Microsoft crowd to spend on mega-mansions, SUVs, and local taxes. The local library, the local police force, and the local schools are going to have a bit less local wealth to tax. In essence, the Linux boys are sacking Seattle without getting out of their chairs or breaking a sweat. You won't see this battle retold on those cable channels that traffic in war documentaries, but it's unfolding as we speak. + +The repercussions go deeper. Microsoft is not just a Seattle firm. Microsoft is an American company and whatever is good for Microsoft is usually good, at least in some form, for the United States. There may be some fraternal squabbling between Microsoft and Silicon Valley, but the United States is doing quite well. The info boom is putting millions to work and raising trillions in taxes. + +The free software revolution undermines this great scheme in two very insidious ways. The first is subtle. No one officially has much control over a free software product, and that means that no country can claim it as its own. If Bill Gates says that the Japanese version of Windows will require a three-button mouse, then Japan will have to adjust. But Torvalds, Stallman, and the rest can't do a darn thing about anyone. People can just reprogram their mouse. If being boss means making people jump, then no one in the free software world is boss of anything. Free source code isn't on anyone's side. It's more neutral than Switzerland was in World War II. The United States can only take solace in the fact that many of the great free source minds choose to live in its boundaries. + +The second effect is more incendiary. Free software doesn't pay taxes. In the last several centuries, governments around the world have spent their days working out schemes to tax every transaction they can find. First, there were just tariffs on goods crossing borders, then the bold went after the income, and now the sales tax and the VAT are the crowning achievement. Along the way, the computer with its selfless ability to count made this possible. But how do you tax something that's free? How do you take a slice out of something that costs nothing? + +These are two insidious effects. The main job of governments is to tax people. Occasionally, one government will lust after the tax revenue of another and a war will break out that will force people to choose sides. The GPL and the BSD licenses destroy this tax mechanism, and no one knows what this will bring. + +One of the best places to see this destabilization is in the efforts of the United States government to regulate the flow of encryption software around the globe. Open source versions of encryption technology are oozing through the cracks of a carefully developed mechanism for restricting the flow of the software. The U.S. government has tried to keep a lid on the technology behind codes and ciphers since World War II. Some argue that the United States won World War II and many of the following wars by a judicious use of eavesdropping. Codebreakers in England and Poland cracked the German Enigma cipher, giving the Allies a valuable clue about German plans. The Allies also poked holes in the Japanese code system and used this to win countless battles. No one has written a comprehensive history of how code-breaking shifted the course of the conflicts in Vietnam, Korea, or the Middle East, but the stories are bound to be compelling. + +In recent years, the job of eavesdropping on conversations around the world has fallen on the National Security Agency, which is loath to lose the high ground that gave the United States so many victories in the past. Cheap consumer cryptographic software threatened the agency's ability to vacuum up bits of intelligence throughout the world, and something needed to be done. If good scrambling software was built into every copy of Eudora and Microsoft Word, then many documents would be virtually unreadable. The United States fought the threat by regulating the export of all encryption source code. The laws allowed the country to regulate the export of munitions, and scrambling software was put in that category. + +These regulations have caused an endless amount of grief in Silicon Valley. The software companies don't want someone telling them what to write. Clearing some piece of software with a bureaucrat in Washington, D.C., is a real pain in the neck. It's hard enough to clear it with your boss. Most of the time, the bureaucrat won't approve decent encryption software, and that means the U.S. company has a tough choice: it can either not export its product, or build a substandard one. + +There are branches of the U.S. government that would like to go further. The Federal Bureau of Investigation continues to worry that criminals will use the scrambling software to thwart investigations. The fact that encryption software can also be used by average folks to protect their money and privacy has presented a difficult challenge to policy analysts from the FBI. From time to time, the FBI raises the specter of just banning encryption software outright. + +The software industry has lobbied long and hard to lift these regulations, but they've had limited success. They've pointed out that much foreign software is as good as if not better than American encryption software. They've screamed that they were losing sales to foreign competitors from places like Germany, Australia, and Canada, competitors who could import their software into the U.S. and compete against American companies. None of these arguments went very far because the interests of the U.S. intelligence community always won when the president had to make a decision. + +The free source code world tripped into this debate when a peace activist named Phil Zimmerman sat down one day and wrote a program he called Pretty Good Privacy, or simply PGP. Zimmerman's package was solid, pretty easy to use, and free. To make matters worse for the government, Zimmerman gave away all of the source code and didn't even use a BSD or GPL license. It was just out there for all the world to see. + +The free source code had several effects. First, it made it easy for everyone to learn how to build encryption systems and add the features to their own software. Somewhere there are probably several programmers being paid by drug dealers to use PGP's source code to scramble their data. At least one person trading child pornography was caught using PGP. + +Of course, many legitimate folks embraced it. Network Solutions, the branch of SAIC, the techno powerhouse, uses digital signatures generated by PGP to protect the integrity of the Internet's root server. Many companies use PGP to protect their e-mail and proprietary documents. Banks continue to explore using tools like PGP to run transaction networks. Parents use PGP to protect their kids' e-mail from stalkers. + +The free source code also opened the door to scrutiny. Users, programmers, and other cryptographers took apart the PGP code and looked for bugs and mistakes. After several years of poking, everyone pretty much decided that the software was secure and safe. + +This type of assurance is important in cryptography. Paul Kocher, an expert in cryptography who runs Cryptography Research in San Francisco, explains that free source software is an essential part of developing cryptography."You need source code to test software, and careful testing is the only way to eliminate security problems in crypto-systems," he says. "We need everyone to review the design and code to look for weaknesses." + +Today, security products that come with open source code are the most trusted in the industry. Private companies like RSA Data Security or Entrust can brag about the quality of their in-house scientists or the number of outside contractors who've audited the code, but nothing compares to letting everyone look over the code. + +When Zimmerman launched PGP, however, he knew it was an explicitly political act designed to create the kind of veil of privacy that worried the eavesdroppers. He framed his decision, however, in crisp terms that implicitly gave each person the right to control their thoughts and words. "It's personal. It's private. And it's no one's business but yours," he wrote in the introduction to the manual accompanying the software. "You may be planning a political campaign, discussing your taxes, or having an illicit affair. Or you may be doing something that you feel shouldn't be illegal, but is. Whatever it is, you don't want your private electronic mail (e-mail) or confidential documents read by anyone else. There's nothing wrong with asserting your privacy. Privacy is as apple-pie as the Constitution." + +Initially, Zimmerman distributed PGP under the GPL, but backed away from that when he discovered that the GPL didn't give him much control over improvements. In fact, they proliferated and it made it hard to keep track of who created them. Today, the source code comes with a license that is very similar to the BSD license and lets people circulate the source code as much as they want. + +"I place no restraints on your modifying the source code for your own use," he writes in the accompanying documentation, and then catches himself."However, do not distribute a modified version of PGP under the name 'PGP' without first getting permission from me. Please respect this restriction. PGP's reputation for cryptographic integrity depends on maintaining strict quality control on PGP's cryptographic algorithms and protocols." + +Zimmerman's laissez-faire attitude, however, doesn't mean that the software is available with no restrictions. A holding company named Public Key Partners controlled several fundamental patents, including the ones created by Ron Rivest, Adi Shamir, and Len Adleman. Zimmerman's PGP used this algorithm, and technically anyone using the software was infringing the patent. + +While "infringing on a patent" has a certain legal gravitas, its real effects are hard to quantify. The law grants the patent holders the right to stop anyone from doing what is spelled out in the patent, but it only allows them to use a lawsuit to collect damages. In fact, patent holders can collect triple damages if they can prove that the infringers knew about the patent. These lawsuits can be quite a hassle for a big company like Microsoft, because Microsoft is selling a product and making a profit. Finding a number to multiply by three is easy to do. But the effects of the lawsuits on relatively poor, bearded peace activists who aren't making money is harder to judge. What's three times zero? The lawsuits make even less sense against some guy who's using PGP in his basement. + +Still, the threat of a lawsuit was enough of a cudgel to worry Zimmerman. The costs, however, put a limit on what PKP could demand. In the end, the two parties agreed that PGP could be distributed for non-commercial use if it relied upon a toolkit known as RSAREF made by PKP's sister company, RSA Data Security. Apparently, this would encourage people to use RSAREF in their commercial products and act like some free advertising for the toolkit. + +The patent lawsuit, however, was really a minor threat for Zimmerman. In 1994, the U.S. government started investigating whether Zimmerman had somehow exported encryption software by making it available on the Internet for download. While Zimmerman explicitly denounced violating the laws and took pains to keep the software inside the country, a copy leaked out. Some suggest it was through a posting on the Net that inadvertently got routed throughout the world. Was Zimmerman responsible? +A branch of the U.S. Customs launched a criminal investigation in the Northern District of California to find out. + +Of course, determining how the source code got out of the country was a nearly impossible exercise. Unless Zimmerman confessed or somehow kept some incriminating evidence around, the prosecutors faced a tough job painting him as a lawbreaker. The software was available for free to anyone inside the country, and that meant that everyone had at least an opportunity to break the law. There were no purchase records or registration records. No one knew who had PGP on their disk. Maybe someone carried it across the border after forgetting that the source code was on a hard disk. Maybe a foreigner deliberately came into the U.S. and carried it out. Who knows? Zimmerman says it blew across the border "like dandelion seeds blowing in the wind." + +To make matters worse for the forces in the U.S. government that wanted to curtail PGP, the patent held by RSA wasn't filed abroad due to different regulations. Foreigners could use the software without care, and many did. This was the sort of nightmare that worried the parts of the U.S. intelligence-gathering branch that relied upon wholesale eavesdropping. + +Eventually, the criminal investigation amounted to nothing. No indictments were announced. No trials began. Soon after the investigation ended, Zimmerman helped form a company to create commercial versions of PGP. While the free versions continue to be available today and are in widespread use among individuals, companies often turn to PGP for commercial products that come with a license from PKP. When the RSA patent expires in September 2000, the people will be free to use PGP again.~{ The GNU project has already worked around many of these impediments. Their Privacy Guard package (GNU PG) is released under the GNU license. }~ + +Zimmerman's experiences show how free source code turned into a real thorn in the side of the U.S. government. Businesses can be bought or at least leaned on. Merchandise needs to flow through stores and stores have to obey the law. Red tape can ruin everything. But free software that floats like dandelion seeds can't be controlled. People can give it to each other and it flows like speech. Suddenly it's not a product that's being regulated, but the free exchange of ideas between people, ideas that just happen to be crystallized as a computer program. + +Of course, a bureaucracy has never met something it couldn't regulate, or at least something it couldn't try to regulate. Zimmerman's experience may have proved to some that governments are just speed bumps on the infobahn of the future, but others saw it as a challenge. Until the end of 1999, the U.S. government has tried to tighten up the restrictions on open source versions of encryption technology floating around the world. The problem was that many countries around the globe explicitly exempt open source software from the restrictions, and the United States has lobbied to tighten these loopholes. + +The best place to begin this story may be in the trenches where system administrators for the U.S. government try to keep out hackers. Theo de Raadt, the leader of the OpenBSD team, likes to brag that the U.S. government uses OpenBSD on its secure internal network. The system designers probably made that choice because OpenBSD has been thoroughly audited for security holes and bugs by both the OpenBSD team and the world at large. They want the best code, and it's even free. + +"They're running Network Flight Recorder," de Raadt says. "It's a super sniffing package and an intrusion detection system. They can tell you if bad traffic happens on your private little network that the firewall should have stopped. They have OpenBSD running NFR on every network. They run an IPSEC vpn back to a main network information center where they look and do traffic analysis." + +That is, the departments watch for bad hackers by placing OpenBSD boxes at judicious points to scan the traffic and look for incriminating information. These boxes, of course, must remain secure. If they're compromised, they're worthless. Turning to something like OpenBSD, which has at least been audited, makes sense. + +"They catch a lot of system administrators making mistakes. It's very much a proactive result. They can see that a sys admin has misconfigured a firewall," he says. + +Normally, this would just be a simple happy story about the government getting a great value from an open source operating system. They paid nothing for it and got the results of a widespread, open review looking for security holes. + +De Raadt lives in Canada, not the United States, and he develops OpenBSD there because the laws on the export of encryption software are much more lenient. For a time, Canada did not try to control any mass market software. Recently, it added the requirement that shrinkwrapped software receive a license, but the country seems willing to grant licenses quite liberally. Software that falls into the public domain is not restricted at all. While OpenBSD is not in the public domain, it does fit that definition as set out by the rules. The software is distributed with no restrictions or charge. By the end of 1999, senior officials realized that the stop crypt policy was generating too many ironic moments. + +This is just another example of how free source software throws the traditional-instincts regulatory system for a loop. Companies sell products, and products are regulated. Public domain information, on the other hand, is speech and speech is protected, at least by the U.S. Constitution. Relying on Canada for network security of the Internet was too much. + +In January 2000, the U.S. government capitulated. After relentless pressure from the computer industry, the government recognized that high-quality encryption software like OpenBSD was common throughout the world. It also recognized that the quality was so good that many within the United States imported it. The government loosened restrictions and practically eliminated them for open source software. While many people are still not happy with the new regulations, open source encryption software can now flow out of the United States. The distributors need only notify the U.S. government about where the software is available. The commercial, proprietary encryption software was not as lucky. The regulations are now substantially easier on the corporations but they still require substantial review before an export license is granted. + +The difference in treatment probably did not result from any secret love for Linux or OpenBSD lurking in the hearts of the regulators in the Bureau of Export Affairs at the Department of Commerce. The regulators are probably more afraid of losing a lawsuit brought by Daniel Bernstein. In the latest decision released in May 1999, two out of three judges on an appeals panel concluded that the U.S. government's encryption regulations violated Bernstein's rights of free speech. The government argued that source code is a device not speech. The case is currently being appealed. The new regulations seem targeted to specifically address the problems the court found with the current regulations. + +Encryption software is just the beginning of the travails as the government tries to decide what to do about the free exchange of source code on the Net. Taxes may be next. While people joke that they would be glad to pay 10 percent sales tax on the zero dollars they've spent on GNU software, they're missing some of the deeper philosophical issues behind taxation. Many states don't officially tax the sale of an object; +they demand the money for the use of it. That means if you buy a stereo in Europe, you're still supposed to pay some "use tax" when you turn it on in a state. The states try to use this as a cudgel to demand sales tax revenue from out-of-state catalog and mail-order shops, but they haven't gotten very far. But this hasn't stopped them from trying. + +What tax could be due on a piece of free software? Well, the state could simply look at the software, assign a value to it, and send the user a bill. Many states do just that with automobiles. You might have a rusted clunker, but they use the Blue Book value of a car to determine the tax for the year and each year they send a new bill. This concept proved to be so annoying to citizens of Virginia that Jim Gilmore won the election for governor with a mandate to repeal it. But just because he removed it doesn't mean that others will leave the issue alone. + +If governments ever decide to try to tax free software, the community might be able to fight off the request by arguing that the tax is "paid" +when the government also uses the free software. If 7 out of 100 Apache servers are located in government offices, then the government must be getting 7 percent returned as tax. + +One of the most difficult problems for people is differentiating between wealth and money. The free software movement creates wealth without moving money. The easy flow of digital information makes this possible. Some folks can turn this into money by selling support or assisting others, but most of the time the wealth sits happily in the public domain. + +Today, the Internet boom creates a great pool of knowledge and intellectual wealth for the entire society. Some people have managed to convert this into money by creating websites or tools and marketing them successfully, but the vast pool of intellectual wealth remains open and accessible to all. Who does this belong to? Who can tax this? Who controls it? The most forward-thinking countries will resist the urge to tax it, but how many will really be able to keep on resisting? + +1~ Wealth + +The writer, P. J. O'Rourke, once pointed out that wealth is a particularly confusing concept to understand. It had nothing to do with being born in the right place. Africa is filled with diamonds, gold, platinum, oil, and thousands of other valuable resources, while Japan has hardly anything underground except subway tunnels and anthrax from strange cults. Yet Japan is still far wealthier even after the long swoon of their postbubble economy. + +O'Rourke also pointed out that wealth has nothing to do with raw brains. The Russians play chess as a national sport while Brentwood is filled with dim bulbs like the folks we saw during the O. J. Simpson murder trial. Yet poverty is endemic in Russia, while Brentwood flourishes. Sure, people wait in line for food in Brentwood like they did in Soviet Russia, but this is only to get a table at the hottest new restaurant. + +Wealth is a strange commodity, and understanding it keeps economists busy. Governments need to justify their existence in some way, and lately people in the United States use their perception of the "economy" as a measure of how well the government is doing. But many of their attempts to use numbers to measure wealth and prosperity are doomed to failure. One year, the economists seem to be frantically battling deflation, then they turn around and rattle on and on about inflation. They gave up trying to measure the money supply to follow inflation and seem, at times, to be flying the economy by the seat of their pants. Of course, they're not really in charge. One minute you can't have growth without inflation. The next minute you can. It's all a bit like ancient days of tribal living when the high priest was responsible for dreaming up reasons why the volcano did or did not erupt. Some days the money supply smiles upon us, and on other days, she is very, very angry. + +Wealth in the free software world is an even slippier concept. There's not even any currency to use to keep score. Let's say we wanted to know or at least guesstimate whether the free source world was wealthy. That's not too hard. Most of the guys hacking the code just want to drink caffeinated beverages, play cool games, and write more code. The endless stream of faster and faster computer boxes makes this as close to a perfect world as there could be. To make matters better, new T-shirts with clever slogans keep appearing. It's a nerd utopia. It's Shangri-La for folks who dig computers. + +Of course, deciding whether or not someone is wealthy is not really an interesting question of economics. It's more about self-esteem and happiness. Someone who has simple needs can feel pretty wealthy in a shack. Spoiled kids will never be happy no matter how big their palace. There are plenty of content people in the free software world, but there are also a few who won't be happy until they have source code to a huge, wonderful, bug-free OS with the most features on the planet. They want total world domination. + +A more intriguing question is whether the free source world is wealthier than the proprietary source world. This starts to get tricky because it puts Apples up against oranges and tries to make complicated comparisons. Bill Gates is incredibly wealthy in many senses of the word. He's got billions of dollars, a huge house, dozens of cars, servants, toys, and who knows what else. Even his employees have their own private jets. All of the trappings of wealth are there. Linus Torvalds, on the other hand, says he's pretty happy with about $100,000 a year, although several IPOs will probably leave him well off. Microsoft has thousands of programmers who are paid well to write millions of lines of code a year. Most open source programmers aren't paid much to create what they do. If money were a good measure, then the proprietary source world would win hands-down. + +But money is the answer only if you want piles of paper with pictures of famous Americans on them. Several countries in Latin America generate huge piles of money from drugs, oil, and other natural resources, but the countries remain quite poor. The leaders who end up with most of the money might like the huge disparity, but it has very distinct limitations. When it comes time for college or medical care, the very rich start flying up to the United States. Johns Hopkins, a hospital in Baltimore near where I live, provides wonderful medical service to the poor who live in the surrounding neighborhood. It also has a special wing with plush suites for rich people who fly in for medical treatment. Many are potentates and high government officials from poor countries around the world. + +People in the United States can enjoy the synergies of living near other well-educated, creative, empowered, and engaged citizens. People in poor societies can't assume that someone else will design great roads, build airlines, create cool coffee shops, invent new drugs, or do anything except get by on the few scraps that slip through the cracks to the great unwashed poor. The ultrarich in Latin America may think they're getting a great deal by grabbing all the pie, until they get sick. Then they turn around and fly to hospitals like Johns Hopkins, a place where the poor of Baltimore also enjoy quite similar treatment. Wealth is something very different from cash. + +Most folks in the free source world may not have big bank accounts. Those are just numbers in a computer anyway, and everyone who can program knows how easy it is to fill a computer with numbers. But the free source world has good software and the source code that goes along with it. How many times a day must Bill Gates look at the blue screen of death that splashes across a Windows computer monitor when the Windows software crashes? How many times does Torvalds watch Linux crash? Who's better off? Who's wealthier? + +The question might be asked, "Is your software better than it was four years ago?" That is, does your software do a better job of fetching the mail, moving the data, processing the words, or spreading the sheets? Is it more intuitive, more powerful, more stable, more featurerich, more interesting, more expressive, or just better? + +The answers to these questions can't be measured like money. There's no numerical quotient that can settle any of these questions. There will always be some folks who are happy with their early-edition DOS word processor and don't see the need to reinvent the wheel. There are others who are still unhappy because their desktop machine can't read their mind. + +For the devoted disciples of the open software mantra, the software in the free source world is infinitely better. Richard Stallman feels that the GNU code is better than the Microsoft code just because he has the source code and the freedom to do what he wants with it. The freedom is more important to him than whatever super-duper feature comes out of the Microsoft teams. After all, he can add any feature he wants if he has access to the basic source code. Living without the source code means waiting like a good peon for the nice masters from the big corporation to bless us with a bug fix. + +There's no question that people like Stallman love life with source code. A deeper question is whether the free source realm offers a wealthier lifestyle for the average computer user. Most people aren't programmers, and most programmers aren't even the hard-core hackers who love to fiddle with the UNIX kernel. I've rarely used the source code to Linux, Emacs, or any of the neat tools on the Net, and many times I've simply recompiled the source code without looking at it. Is this community still a better deal? + +There are many ways of looking at the question. The simplest is to compare features. It's hard to deny that the free software world has made great strides in producing something that is easy to use and quite adaptable. The most current distributions at the time I'm writing this come with a variety of packages that provide all of the functionality of Microsoft Windows and more. The editors are good, the browser is excellent, and the availability of software is wonderful. The basic Red Hat or Caldera distribution provides a very rich user interface that is better in many ways than Windows or the Mac. Some of the slightly specialized products like video software editors and music programs aren't as rich-looking, but this is bound to change with time. It is really a very usable world. + +Some grouse that comparing features like this isn't fair to the Mac or Windows world. The GNOME toolkit, they point out, didn't come out of years of research and development. The start button and the toolbar look the same because the GNOME developers were merely copying. The GNU/Linux world didn't create their own OS, they merely cloned all of the hard commercial research that produced UNIX. It's always easier to catch up, but pulling ahead is hard. The folks who want to stay on the cutting edge need to be in the commercial world. It's easy to come up with a list of commercial products and tools that haven't been cloned by an open source dude at the time of this writing: streaming video, vector animation, the full Java API, speech recognition, three dimensional CAD programs, speech synthesis, and so forth. The list goes on and on. The hottest innovations will always come from well capitalized start-ups driven by the carrot of wealth. + +Others point out that the free software world has generated more than its share of innovation. Most of the Internet was built upon non-proprietary standards developed by companies with Department of Defense contracts. Stallman's Emacs continues to be one of the great programs in the world. Many of the projects like Apache are the first place where new ideas are demonstrated. People who want to mock up a project find it easier to extend free source software. These ideas are often reborn as commercial products. While free source users may not have access to the latest commercial innovations, they have plenty of their own emerging from the open software world. GNOME isn't just a Windows clone--it comes with thousands of neat extensions and improvements that can't be found in Redmond. + +Stallman himself says the GNU project improved many pieces of software when they rewrote them. He says, "We built on their work, to the extent that we could legally do so (since we could not use any of their code), but that is the way progress is made. Almost every GNU program that replaces a piece of Unix includes improvements." + +Another way to approach the question is to look at people's behavior. Some argue that companies like Red Hat or organizations like Debian prove that people need and want some of the commercial world's handholding. They can't afford to simply download the code and fiddle with it. Most people aren't high school students doing time for being young. They've got jobs, families, and hobbies. They pay because paying brings continuity, form, structure, and order to the free source world. Ultimately, these Red Hat users aren't Stallman disciples, they're commercial sheep who are just as dependent on Red Hat as the Windows customers are on Microsoft. + +The counter-argument is that this insight overlooks a crucial philosophical difference. The Red Hat customers may be slaves like the Microsoft customers, but they still have important freedoms. Sure, many Americans are wage slaves to an employer who pays them as little as possible, but they do have the freedom to go be wage slaves of another employer if they choose. Old-fashioned slaves faced the whip and death if they tried to take that route. + +Most Linux users don't need to rewrite the source, but they can still benefit from the freedom. If everyone has the freedom, then someone will come along with the ability to do it and if the problem is big enough, someone probably will. In other words, only one person has to fly the X-wing fighter down the trench and blow up the Death Star. + +Some point out that the free source world is fine-if you've got the time and the attention to play with it. The source code only helps those who want to spend the time to engage it. You've got to read it, study it, and practice it to get any value from it at all. Most of us, however, just want the software to work. It's like the distinction between people who relax by watching a baseball game on television and those who join a league to play. The spectators are largely passive, waiting for the action to be served up to them. The league players, on the other hand, don't get anything unless they practice, stretch, push, and hustle. They need to be fully engaged with the game. All of us like an occasional competition, but we often need a soft couch, a six-pack, and the remote control. Free software is a nice opportunity to step up to the plate, but it's not true refreshment for the masses. + +Which is a better world? A polished Disneyland where every action is scripted, or a pile of Lego blocks waiting for us to give them form? +Do we want to be entertained or do we want to interact? Many free software folks would point out that free software doesn't preclude you from settling into the bosom of some corporation for a long winter's nap. Companies like Caldera and Linuxcare are quite willing to hold your hand and give you the source code. Many other corporations are coming around to the same notion. Netscape led the way, and many companies like Apple and Sun will follow along. Microsoft may even do the same thing by the time you read this. + +Money isn't the same as wealth, and the nature of software emphasizes some of the ways in which this is true. Once someone puts the hours into creating software, it costs almost nothing to distribute it to the world. The only real cost is time because raw computer power and caffeinated beverages are very inexpensive. + +2~ Wealth and Poverty + +George Gilder laid out the gap between wealth and money in his influential book Wealth and Poverty. The book emerged in 1981 just before Ronald Reagan took office, and it became one of the philosophical touchstones for the early years of the administration. At the time, Gilder's words were aimed at a world where socialist economies had largely failed but capitalists had never declared victory. The Soviet Union was sliding deeper into poverty. Sweden was heading for some of the highest interest rates imaginable. Yet the newspapers and colleges of the United States refused to acknowledge the failure. Gilder wanted to dispel the notion that capitalism and socialism were locked into some eternal yin/yang battle. In his mind, efficient markets and decentralized capital allocation were a smashing success compared to the plodding bureaucracy that was strangling the Soviet Union. + +Although Gilder spoke generally about the nature of wealth, his insights are particularly good at explaining just why things went so right for the open software world. "Capitalism begins with giving," he says, and explains that societies flourish when people are free to put their money where they hope it will do the best. The investments are scattered like seeds and only some find a good place to grow. Those capitalists who are a mixture of smart and lucky gain the most and then plow their gains back into the society, repeating the process. No one knows what will succeed, so encouraging the bold risk-takers makes sense. + +Gilder's chapter on gift-giving is especially good at explaining the success of the free software world. Capitalism, he explains, is not about greed. It's about giving to people with the implicit knowledge that they'll return the favor severalfold. He draws heavily on anthropology and the writings of academics like Claude Lévi-Strauss to explain how the best societies create capital through gifts that come with the implicit debt that people give something back. The competition between people to give better and better gifts drives society to develop new things that improve everyone's life. + +Gilder and others have seen the roots of capital formation and wealth creation in this gift-giving. "The unending offerings of entrepreneurs, investing capital, creating products, building businesses, inventing jobs, + +accumulating inventories--all long before any return is received, all without assurance that the enterprise will not fail--constitute a pattern of giving that dwarfs in extent and in essential generosity any primitive rite of exchange. Giving is the vital impulse and moral center of capitalism," he writes. + +The socialists who've railed against the injustices and brutalities of market capitalism at work would disagree with the strength of his statement, but there are plenty of good examples. The American Civil War was the battle between the northern states where workers were occasionally chained to looms during their shifts and the southern states where the workers were always slaves. In the end, the least cruel society won, in part because of the strength of its industry and its ability to innovate. Companies that discovered this fact flourished and those that didn't eventually failed. By the end of the 20th century, the demand for labor in the United States was so high that companies were actively competing in offering plush treatment for their workers. + +The free software world, of course, is a perfect example of the altruistic nature of the potlatch. Software is given away with no guarantee of any return. People are free to use the software and change it in any way. The GNU Public License is not much different from the social glue that forces tribe members to have a larger party the next year and give back even more. If someone ends up creating something new or interesting after using GPL code as a foundation, then they become required to give the code back to the tribe. + +Of course, it's hard to get much guidance from Gilder over whether the GPL is better than the BSD license. He constantly frames investment as a "gift" to try to deemphasize the greed of capitalism. Of course, anyone who has been through a mortgage foreclosure or a debt refinancing knows that the banks don't act as if they've given away a gift. There are legal solutions for strong-arming the folks who don't give back enough. He was trying to get readers to forget these tactics a bit and get them to realize that after all of the arms are broken, the bank is still left with whatever the loan produced. There were no ultimate guarantees that all of the money would come back. + +Gilder smooths over this with a sharply drawn analogy. Everyone, he says, has experienced the uncomfortable feeling that comes from getting a gift that is the wrong size, the wrong style, or just wrong altogether. "Indeed, it is the very genius of capitalism that it recognizes the difficulty of successful giving, understands the hard work and sacrifice entailed in the mandate to help one's fellow men, and offers a practical way of living a life of effective charity," he writes. It's not enough to give a man a fish, because teaching him to fish is a much better gift. A fish farm that hires a man and gives him stock options may be offering the highest form of giving around. + +Gilder does note that the cycle of gifts alone is not enough to build a strong economy. He suggests that the bigger and bigger piles of coconuts and whale blubber were all that emerged from the endless rounds of potlatching. They were great for feasting, but the piles would rot and go stale before they were consumed. The successful society reinterpreted the cycle of gifts as investment and dividends, and the introduction of money made it possible for people to easily move the returns from one investment to the start of another. This liquidity lets the cycles be more and more efficient and gives people a place to store their wealth. + +Of course, Gilder admits that money is only a temporary storage device. It's just a tool for translating the wealth of one sector of the economy into the wealth of another. It's just a wheelbarrow or an ox cart. If society doesn't value the contributions of the capitalists, the transfer will fail. If the roads are too rocky or blocked by too many toll collectors, the carts won't make the trip. + +At first glance, none of this matters to the free software world. The authors give away their products, and as long as someone pays a minimal amount for storage the software will not decay. The web is filled with source code repositories and strongholds that let people store away their software and let others download it at will. These cost a minimal amount to keep up and the cost is dropping every day. There's no reason to believe that the original work of Stallman will be lost to the disease, pestilence, wear, and decay that have cursed physical objects like houses, clothes, and food. + +But despite the beautiful permanence of software, everyone knows that it goes bad. Programmers don't use the term "bit rot" for fun. As operating systems mature and other programs change, the old interfaces start to slowly break down. One program may depend upon the operating system to print out a file in response to a command. Then a new version of the printing code is revved up to add fancier fonts and more colors. Suddenly the interface doesn't work exactly right. Over time, these thousands of little changes can ruin the heart of a good program in much the same way worms can eat the hull of a wooden ship. + +The good news is that free source software is well positioned to fix these problems. Distributing the source code with the software lets others do their best to keep the software running in a changing environment. John Gilmore, for instance, says that he now embraces the GPL because earlier experiments with totally free software created versions without accompanying source code. + +The bad news is that Gilder has a point about capital formation. Richard Stallman did a great job writing Emacs and GCC, but the accolades weren't as easy to spend as cash. Stallman was like the guy with a pile of whale meat in his front yard. He could feast for a bit, but you can only eat so much whale meat. Stallman could edit all day and night with Emacs. He could revel in the neat features and cool Emacs LISP hacks that friends and disciples would contribute back to the project. But he couldn't translate that pile of whale meat into a free OS that would let him throw away UNIX and Windows. + +While Stallman didn't have monetary capital, he did have plenty of intellectual capital. By 1991, his GNU project had built many well respected tools that were among the best in their class. Torvalds had a great example of what the GPL could do before he chose to protect his Linux kernel with the license. He also had a great set of tools that the GNU project created. + +The GNU project and the Free Software Foundation were able to raise money just on the strength of their software. Emacs and GCC opened doors. People gave money that flowed through to the programmers. While there was no cash flow from software sales, the project found that it could still function quite well. + +Stallman's reputation also can be worth more than money when it opens the right doors. He continues to be blessed by the implicit support of MIT, and many young programmers are proud to contribute their work to his projects. It's a badge of honor to be associated with either Linux or the Free Software Foundation. Programmers often list these details on their résumés, and the facts have weight. + +The reputation also helps him start new projects. I could write the skeleton of a new double-rotating, buzzword-enhanced editor, label it "PeteMACS," and post it to the Net hoping everyone would love it, fix it, and extend it. It could happen. But I'm sure that Stallman would find it much easier to grab the hearts, minds, and spare cycles of programmers because he's got a great reputation. That may not be as liquid as money, but it can be better. + +The way to transfer wealth from project to project is something that the free software world doesn't understand well, but it has a good start. Microsoft struck it rich with DOS and used that money to build Windows. Now it has been frantically trying to use this cash cow to create other new businesses. They push MSN, the Microsoft Network, and hope it will stomp AOL. They've built many content-delivery vehicles like Slate and MSNBC. They've created data-manipulation businesses like Travelocity. Bill Gates can simply dream a dream and put 10,000 programmers to work creating it. He has serious intellectual liquidity. + +In this sense, the battle between free and proprietary software development is one between pure giving and strong liquidity. The GPL world gives with no expectation of return and finds that it often gets a return of a thousand times back from a grateful world of programmers. The proprietary world, on the other hand, can take its profits and redirect them quickly to take on another project. It's a battle of the speed of easy, unfettered, open source cooperation versus the lightning speed of money flowing to make things work. + +Of course, companies like Red Hat lie in a middle ground. The company charges money for support and plows this money back into improving the product. It pays several engineers to devote their time to improving the entire Linux product. It markets its work well and is able to charge a premium for what people are able to get for free. + +No one knows if the way chosen by companies like Red Hat and Caldera and groups like the Free Software Foundation is going to be successful in the long run. Competition can be a very effective way of driving down the price of a product. Some worry that Red Hat will eventually be driven out of business by cheap $2 CDs that rip off the latest distribution. For now, though, the success of these companies shows that people are willing to pay for hand-holding that works well. + +A deeper question is whether the open or proprietary model does a better job of creating a world where we want to live. Satisfying our wants is the ultimate measure of a wealthy society. Computers, cyberspace, and the Internet are rapidly taking up a larger and larger part of people's time. Television viewership is dropping, often dramatically, as people turn to life online. The time spent in cyberspace is going to be important. _1 Stallman wrote in BYTE magazine in 1986, I'm trying to change the way people approach knowledge and information in general. I think that to try to own knowledge, to try to control whether people are allowed to use it, or to try to stop other people from sharing it, is sabotage. It is an activity that benefits the person that does it at the cost of impoverishing all of society. One person gains one dollar by destroying two dollars' worth of wealth. + +No one knows what life online will look like in 5 or 10 years. It will certainly include web pages and e-mail, but no one knows who will pay how much. The cost structures and the willingness to pay haven't been sorted out. Some companies are giving away some products so they can make money with others. Many are frantically giving away everything in the hope of attracting enough eyeballs to eventually make some money. + +The proprietary model rewards risk-takers and gives the smartest, fastest programmers a pile of capital they can use to play the game again. It rewards the ones who satisfy our needs and gives them cash they can use to build newer and bigger models. The distribution of power is pretty meritocratic, although it can break down when monopolies are involved. + +But the open source solution certainly provides good software to everyone who wants to bother to try to use it. The free price goes a long way to spreading its bounty to a wide variety of people. No one is excluded and no one is locked out of contributing to the commonweal because they don't have the right pedigree, education, racial heritage, or hair color. Openness is a powerful tool. + +Richard Stallman told me, "Why do you keep talking about 'capital'? +None of this has anything to do with capital. Linus didn't need capital to develop a kernel, he just wrote it. We used money to hire hackers to work on the kernel, but describing that as capital is misleading. + +"The reason why free software is such a good idea is that developing software does not really need a lot of money. If we cannot 'raise capital' the way the proprietary software companies do, that is not really a problem. + +"We do develop a lot of free software. If a theory says we can't, you have to look for the flaws in the theory." + +One of the best ways to illustrate this conundrum is to look at the experiences of the workers at Hotmail after they were acquired by Microsoft. Sure, many of them were overjoyed to receive so much for their share in an organization. Many might even do the same thing again if they had the choice. Many, though, are frustrated by their new position as corporate citizens whose main job is augmenting Microsoft's bottom line. + +One Hotmail founder told the PBS Online columnist Robert Cringely, "All we got was money. There was no recognition, no fun. Microsoft got more from the deal than we did. They knew nothing about the Internet. MSN was a failure. We had 10 million users, yet we got no respect at all from Redmond. Bill Gates specifically said, 'Don't screw-up Hotmail,' yet that's what they did." + +1~ Future + +David Henkel-Wallace sat quietly in a chair in a Palo Alto coffee shop explaining what he did when he worked at the free software firm Cygnus. He brought his new daughter along in a baby carriage and kept her parked alongside. Cygnus, of course, is one of the bigger successes in the free software world. He helped make some real money building and sustaining the free compiler, GCC, that Richard Stallman built and gave away. Cygnus managed to make the real money even after they gave away all of their work. + +In the middle of talking about Cygnus and open source, he points to his child and says, "What I'm really worried about is she'll grow up in a world where software continues to be as buggy as it is today." Other parents might be worried about the economy, gangs, guns in schools, or the amount of sex in films, but Henkel-Wallace wants to make sure that random software crashes start to disappear. + +He's done his part. The open source movement thrives on the GCC compiler, and Cygnus managed to find a way to make money on the process of keeping the compiler up to date. The free operating systems like Linux or FreeBSD are great alternatives for people today. They're small, fast, and very stable, unlike the best offerings of Microsoft or Apple. If the open software movement continues to succeed and grow, his child could grow up into a world where the blue screen of death that terrorizes Microsoft users is as foreign to them as manual typewriters. + +No one knows if the open software world will continue to grow. Some people are very positive and point out that all the features that made it possible for the free OSs to bloom are not going away. If anything, the forces of open exchange and freedom will only accelerate as more people are drawn into the mix. More people mean more bug fixes, which means better software. + +Others are not so certain, and this group includes many of the people who are deeply caught up in the world of open source. Henkel-Wallace, for instance, isn't so sure that the source code makes much difference when 99 percent of the people don't program. Sure, Cygnus had great success sharing source code with the programmers who used GCC, but all of those guys knew how to read the code. What difference will the source code make to the average user who just wants to read his e-mail? +Someone who can't read the source code isn't going to contribute much back to the project and certainly isn't going to put much value in getting it. A proprietary company like Microsoft may be able to maintain a broad base of loyalty just by offering better hand-holding for the folks who can't program. + +Free software stands at an interesting crossroads as this book is being written. It won over a few hackers in garages in the early 1990s. By the mid-1990s, webmasters embraced it as a perfectly good option. Now everyone wonders whether it will conquer the desktop in the next century. + +It's always tempting for an author to take the classic TV news gambit and end the story with the earnest punt phrase, "Whether this will happen remains to be seen. "That may be the most fair way to approach reporting the news, but it's not as much fun. I'm going to boldly predict that open source software will win the long-term war against proprietary companies, but it will be a bloody war and it will be more costly than people expect. Over the next several years, lawyers will spend hours arguing cases; people will spend time in jail; and fortunes will be lost to the struggle. + +While it seems difficult to believe, some people have already spent time in jail for their part in the free software revolution. Kevin Mitnick was arrested in 1995 amid accusations that he stole millions if not billions of dollars' worth of source code. There was no trial, nor even a bail hearing. Finally, after almost five years in prison, Mitnick pled guilty to some charges and received a sentence that was only a few months longer than the time he served while waiting for a trial. Mitnick was accused of stealing millions of dollars from companies by breaking into computers and stealing copies of their source code. + +In the statement he made following his release, he said, ". . . my crimes were simple crimes of trespass. I've acknowledged since my arrest in February 1995 that the actions I took were illegal, and that I committed invasions of privacy--I even offered to plead guilty to my crimes soon after my arrest." + +He continued, "The fact of the matter is that I never deprived the companies involved in this case of anything. I never committed fraud against these companies. And there is not a single piece of evidence suggesting that I did so." + +This trespass, of course, would be breaking the rules. The irony is that in 1999, Sun announced that it was sharing its source code with the world. They begged everyone to look at it and probe it for weaknesses. The tide of opinion changed and Sun changed with it. + +Of course, breaking into a company's computer system will always be bad, but it's hard to view Mitnick's alleged crimes as a terrible thing. Now that source code is largely free and everyone digs public sharing, he begins to look more like a moonshine manufacturer during Prohibition. The free source revolution has given him a rakish charm. Who knows if he deserves it, but the zeitgeist has changed. + +There are more arrests on the way. In January 2000, a young Norwegian man was detained by the Norwegian police who wanted to understand his part in the development of software to unscramble the video data placed on DVD disks. Motion picture producers who released their movies in this format were worried that a tool known as DeCSS, which was floating around the Internet, would make it easier for pirates to make unlicensed copies of their movies. + +The man, Jan Johansen, did not write the tool, but merely helped polish and circulate it on the Net. News reports suggest an anonymous German programmer did the actual heavy lifting. + +Still, Johansen made a great target for the police, who never officially arrested him, although they did take him in for questioning. + +At this writing, it's not clear if Johansen officially broke any laws. Some argue that he violated the basic strictures against breaking and entering. Others argue that he circulated trade secrets that were not legimately obtained. + +Still others see the motion picture industry's response as an effort to control the distribution of movies and the machines that display them. A pirate doesn't need to use the DeCSS tool to unlock the data on a DVD disk. They just make a verbatim copy of the disk without bothering with the encryption. That leads others to suspect that the true motive is to sharply limit the companies that produce machines that can display DVD movies. + +One group that is locked out of the fray is the Linux community. While software for playing DVD movies exists for Macintoshes and PCs, there's none for Linux. DeCSS should not be seen as a hacker's tool, but merely a device that allows Linux users to watch the legitimate copies of the DVDs that they bought. Locking out Linux is like locking in Apple and Microsoft. + +The battle between the motion picture community and the Linux world is just heating up as I write this. There will be more lawsuits and prehaps more jail time ahead for the developers who produced DeCSS and the people who shared it through their websites. + +Most of the battles are not so dramatic. They're largely technical, and the free source world should win these easily. Open source solutions haven't had the same sophisticated graphical interface as Apple or Windows products. Most of the programmers who enjoy Linux or the various versions of BSD don't need the graphical interface and may not care about it. The good news is that projects like KDE and GNOME are great tools already. The open source world must continue to tackle this area and fight to produce something that the average guy can use. + +The good news is that open source software usually wins most technical battles. The free versions of UNIX are already much more stable than the products coming from Microsoft and Apple, and it seems unlikely that this will change. The latest version of Apple's OS has free versions of BSD in its core. That battle is won. Microsoft's version of NT can beat these free OSs in some extreme cases, but these are getting to be rarer by the day. Sun's Solaris is still superior in some ways, but the company is sharing the source code with its users in a way that emulates the open source world. More attention means more programmers and more bug fixes. Technical struggles are easy for open source to win. + +Microsoft's greatest asset is the installed base of Windows, and it will try to use this to the best of its ability to defeat Linux. At this writing, Microsoft is rolling out a new version of the Domain Name Server (DNS), which acts like a telephone book for the Internet. In the past, many of the DNS machines were UNIX boxes because UNIX helped define the Internet. Windows 2000 includes new extensions to DNS that practically force offices to switch over to Windows machines to run DNS. Windows 2000 just won't work as well with an old Linux or UNIX box running DNS. + +This is a typical strategy for Microsoft and one that is difficult, but not impossible, for open source projects to thwart. If the cost of these new servers is great enough, some group of managers is going to create its own open source clone of the modified DNS server. This has happened time and time again, but not always with great success. Linux boxes come with Samba, a program that lets Linux machines act as file servers. It works well and is widely used. Another project, WINE, started with the grand design of cloning all of the much more complicated Windows API used by programmers. It is a wonderful project, but it is far from finished. The size and complexity make a big difference. + +Despite these tactics, Microsoft (and other proprietary companies) will probably lose their quest to dominate the standards on the Internet. They can only devote a few programmers to each monopolistic grab. The free software world has many programmers willing to undertake projects. The numbers are now great enough that the cloners should be able to handle anything Microsoft sends its way. + +The real battles will be political and legal. While the computer world seems to move at a high speed with lots of constant turnover, there's plenty of inertia built into the marketplace. Many people were rather surprised to find that there was plenty of COBOL, FORTRAN, and other old software happily running along without any idea of how to store a date with more than two digits. While Y2K incidents fell far short of the media's hype, the number of systems that required reprogramming was still much larger than conventional wisdom predicted. IBM continues to sell mainframes to customers who started buying mainframes in the 1960s. Once people choose one brand or product or computer architecture, they often stay with it forever. + +This is bad news for the people who expect the free OSs to take over the desktop in the next 5 or 10 years. Corporate managers who keep the machines on people's desktops hate change. Change means reeducation. Change means installing new software throughout the plant. Change means teaching folks a new set of commands for running their word processors. Change means work. People who manage the computer networks in offices get graded on the number of glitches that stop workflow. Why abandon Microsoft now? + +If Microsoft has such an emotional stranglehold on the desktop and the computer industry takes forever to change, will free software ever grow beyond the 10 million or so desktops owned by programmers and their friends? + +Its strongest lever will be price. Freedom is great, but corporations respond better to a cost that is close to, if not exactly, zero. Big companies like Microsoft are enormous cash engines. They need a huge influx of cash to pay the workers, and they can't let their stock price slip. Microsoft's revenues increased with a precision that is rare in corporate America. Some stock analysts joke that the stock price suggests that Microsoft's revenues will grow faster than 10 percent forever. In the past, the company accomplished this by absorbing more and more of the market while finding a way to charge more and more for the software they supply. Businesses that lived quite well with Windows 95 are now running Windows NT. Businesses that ran NT are now using special service packs that handle network management and data functions. The budget for computers just keeps going up, despite the fact that hardware costs go down. + +Something has to give. It's hard to know how much of a lever the price will be. If the revenue at Microsoft stops growing, then the company's stock price could take a sharp dive. The company manages continually to produce greater and greater revenues each quarter with smooth precision. The expectation of the growth is built into the price. Any hiccup could bring the price tumbling down. + +The biggest question is how much people are willing to pay to continue to use Microsoft products. Retooling an office is an expensive proposition. The cost of buying new computers and software is often smaller than the cost of reeducation. While the free software world is much cheaper, shifting is not an easy proposition. Only time will tell how much people are willing to pay for their reluctance to change. + +The first cracks are already obvious. Microsoft lost the server market to Apache and Linux on the basis of price and performance. Web server managers are educated computer users who can make their own decisions without having to worry about the need to train others. Hidden computers like this are easy targets, and the free software world will gobble many of them up. More users mean more bug fixes and propagations of better code. + +The second crack in Microsoft's armor will be appliance computers. Most people want to browse the web and exchange some e-mail. The basic distribution from Red Hat or FreeBSD is good enough. Many people are experimenting with creating computers that are defined by the job they do, not the operating system or the computer chip. Free source packages should have no trouble winning many battles in this arena. The price is right and the manufacturers have to hire the programmers anyway. + +The third breach will be young kids. They have no previous allegiances and are eager to learn new computer technology. Microsoft may ask "Where do you want to go today?" but they don't want to talk with someone whose answer is "The guts of your OS."The best and brightest 13-year-olds are already the biggest fans of free software. They love the power and the complete access. + +The fourth crack will be the large installations in businesses that are interested in competitive bidding. Microsoft charges a bundle for each seat in a company, and anyone bidding for these contracts will be able to charge much less if they ship a free OS. It's not uncommon for a company to pay more than a million dollars to Microsoft for license fees. There's plenty of room for price competition when the bill gets that high. Companies that don't want to change will be hard to move from Windows, but ones that are price-sensitive will be moved. + +Of course, free software really isn't free. A variety of companies offering Linux support need to charge something to pay their bills. Distributions like Red Hat or FreeBSD may not cost much, but they often need some customization and hand-holding. Is a business just trading one bill for another? Won't Linux support end up costing the same thing as Microsoft's product? + +Many don't think so. Microsoft currently wastes billions of dollars a year expanding its business in unproductive ways that don't yield new profits. It spent millions writing a free web browser to compete with Netscape's and then they just gave it away. They probably gave up millions of dollars and untold bargaining chips when they twisted the arms of competitors into shunning Netscape. The company's successful products pay for these excursions. At the very least, a free OS operation would avoid these costs. + +Free OS systems are inherently cheaper to run. If you have the source, you might be able to debug the problem yourself. You probably can't, but it doesn't hurt to try. Companies running Microsoft products can't even try. The free flow of information will help keep costs down. + +Of course, there are also hard numbers. An article in Wired by Andrew Leonard comes with numbers originally developed by the Gartner Group. A 25-person office would cost $21,453 to outfit with Microsoft products and $5,544.70 to outfit with Linux. This estimate is a bit conservative. Most of the Linux cost is debatable because it includes almost $3,000 for 10 service calls to a Linux consultant and about $2,500 for Applixware, an office suite that does much of the same job as Microsoft Office. A truly cheap and technically hip office could make do with the editor built into Netscape and one of the free spreadsheets available for Linux. It's not hard to imagine someone doing the same job for about $3, which is the cost of a cheap knockoff of Red Hat's latest distribution. + +Of course, it's important to realize that free software still costs money to support. But so does Microsoft's. The proprietary software companies also charge to answer questions and provide reliable information. It's not clear that Linux support is any more expensive to offer. + +Also, many offices large and small keep computer technicians on hand. There's no reason to believe that Linux technicians will be any more or less expensive than Microsoft technicians. Both answer questions. Both keep the systems running. At least the Linux tech can look at the source code. + +The average home user and small business user will be the last to go. + +These users will be the most loyal to Microsoft because they will find it harder than anyone else to move. They can't afford to hire their own Linux gurus to redo the office, and they don't have the time to teach themselves. + +These are the main weaknesses for Microsoft, and the company is already taking them seriously. I think many underestimate how bloody the battle is about to become. If free source software is able to stop and even reverse revenue growth for Microsoft, there are going to be some very rich people with deep pockets who feel threatened. Microsoft is probably going to turn to the same legal system that gave it such grief and find some wedge to drive into the Linux community. Their biggest weapon will be patents and copyright to stop the cloners. + +Any legal battle will be an interesting fight. On the one hand, the free software community is diverse and spread out among many different entities. There's no central office and no one source that could be brought down. This means Microsoft would fight a war on many fronts, and this is something that's emotionally and intellectually taxing for anyone, no matter how rich or powerful. + +On the other hand, the free software community has no central reservoir of money or strength. Each small group could be crippled, one by one, by a nasty lawsuit. Groups like OpenBSD are always looking for donations. The Free Software Foundation has some great depth and affection, but its budget is a tiny fraction of Sun's or Microsoft's. Legal bills are real, and lawyers have a way of making them blossom. There may be hundreds of different targets for Microsoft, but many of them won't take much firepower to knock out. + +The free software community is not without some deep pockets itself. Many of the traditional hardware companies like IBM, Compaq, Gateway, Sun, Hewlett-Packard, and Apple can make money by selling either hardware or software. They've been hurt in recent years by Microsoft's relentless domination of the desktop. Microsoft negotiated hard contracts with each of the companies that controlled what the user saw. The PC manufacturers received little ability to customize their product. Microsoft turned them into commodity manufacturers and stripped away their control. Each of these companies should see great potential in moving to a free OS and adopting it. There is no extra cost, no strange meetings, no veiled threats, no arm-twisting. + +Suddenly, brands like Hewlett-Packard or IBM can mean something when they're slapped on a PC. Any goofball in a garage can put a circuit board in a box and slap on Microsoft Windows. A big company like HP or IBM could do extra work to make sure the Linux distribution on the box worked well with the components and provided a glitch-free existence for the user. + +The hardware companies will be powerful allies for the free software realm because the companies will be the ones who benefit economically the most from the free software licenses. When all of the software is free, no one controls it and this strips away many of Microsoft's traditional ways of applying leverage. Microsoft, for instance, knocked the legs out from underneath Netscape by giving away Internet Explorer for free. Now the free software world is using the same strategy against Microsoft. It's hard for them to undercut free for most users. + +The university system is a less stable ally. While the notion of free exchange of information is still floating around many of the nation's campuses, the places are frighteningly corporate and profit-minded. Microsoft has plenty of cash at its disposal and it hasn't been shy about spreading it around places like MIT, Harvard, and Stanford. The computer science departments on those campuses are the recipients of brand-new buildings compliments of Bill Gates. These gifts are hard to ignore. + +Microsoft will probably avoid a direct confrontation with the academic tradition of the institutions and choose to cut their prices as low as necessary to dominate the desktops. Universities will probably be given "free," tax-deductible donations of software whenever they stray far from the Microsoft-endorsed solution. Lab managers and people who make decisions about the computing infrastructure of the university will probably get neat "consulting" contracts from Microsoft or its buddies. This will probably not mean total domination, but it will buy a surprisingly large amount of obedience. + +Despite these gifts, free software will continue to grow on the campuses. Students often have little cash and Microsoft doesn't get any great tax deduction by giving gifts to individual students (that's income). The smartest kids in the dorms will continue to run Linux. Many labs do cutting-edge work that requires customized software. These groups will naturally be attracted to free source code because it makes their life easier. It will be difficult for Microsoft to counteract the very real attraction of free software. + +Of course, Microsoft is not without its own arms. Microsoft still has patent law on its side, and this may prove to be a very serious weapon. The law allows the patent holder the exclusive right to determine who uses an idea or invention over the course of the patent, which is now 20 years from the first filing date. That means the patent holder can sue anyone who makes a product that uses the invention. It also means that the patent holder can sue someone who simply cobbles up the invention in his basement and uses the idea without paying anything to anyone. This means that even someone who distributes the software for free or uses the software can be liable for damages. + +In the past, many distrusted the idea of software patents because the patent system wasn't supposed to allow you to lay claim to the laws of nature. This interpretation fell by the wayside as patent lawyers argued successfully that software combined with a computer was a separate machine and machines were eligible for protection. + +Today, it is quite easy to get patent protection for new ideas on how to structure a computer network, an operating system, or a software tool. The only requirement is that they're new and nonobvious. Microsoft has plenty of these. + +If things go perfectly for Microsoft, the company will be able to pull out one or two patents from its huge portfolio and use these to sue Red Hat, Walnut Creek, and a few of the other major distributors. Ideally, this patent would cover some crucial part of the Linux or BSD operating system. After the first few legal bills started arriving on the desk of the Red Hat or Walnut Creek CEO, the companies would have to settle by quitting the business. Eventually, all of the distributors of Linux would crumble and return to the small camps in the hills to lick their wounds. At least, that's probably the dream of some of Microsoft's greatest legal soldiers. + +This maneuver is far from a lock for Microsoft because the free software world has a number of good defenses. The first is that the Linux and BSD world do a good job of publicizing their advances. Any patent holder must file the patent before someone else publishes their ideas. The Linux discussion groups and source distributions are a pretty good public forum. The ideas and patches often circulate publicly long before they make their way into a stable version of the kernel. That means that the patent holders will need to be much farther ahead than the free software world. + +Linux and the free software world are often the cradle of new ideas. University students use open source software all the time. It's much easier to do way cool things if you've got access to the source. Sure, Microsoft has some smart researchers with great funding, but can they compete with all the students? + +Microsoft's ability to dominate the patent world may be hurt by the nature of the game. Filing the application first or publishing an idea first is all that matters in the patent world. Producing a real product is hard work that is helped by the cash supply of Microsoft. Coming up with ideas and circulating them is much easier than building real tools that people can use. + +The second defense is adaptability. The free software distributions can simply strip out the offending code. The Linux and BSD disks are very modular because they come from a variety of different sources. The different layers and tools come from different authors, so they are not highly integrated. This makes it possible to remove one part without ruining the entire system. + +Stallman's GNU project has been dealing with patents for a long time and has some experience programming around them. The GNU Zip program, for instance, was written to avoid the patents on the Lempel-Ziv compression algorithm claimed by UNISYS and IBM. The software is well-written and it works as well as, if not better than, the algorithm it replaces. Now it's pretty standard on the web and very popular because it is open source and patent-free. It's the politically correct compression algorithm to use because it's open to everyone. + +It will be pretty difficult for a company like Microsoft to find a patent that will allow it to deal a fatal blow to either the Linux or BSD distributions. The groups will just clip out the offending code and then work around it. + +Microsoft's greatest hope is to lock up the next generation of computing with patents. New technologies like streaming multimedia or Internet audio are still up for grabs. While people have been studying these topics in universities for some time, the Linux community is further behind. Microsoft will try to dominate these areas with crucial patents that affect how operating systems deal with this kind of data. Their success at this is hard to predict. In any event, while they may be able to cripple the adoption of some new technologies like streaming multimedia, they won't be able to smash the entire world. + +The third and greatest defense for the free source ideology is a loophole in the patent law that may also help many people in the free software world. It is not illegal to use a patented idea if you're in the process of doing some research on how to improve the state of the art in that area. The loophole is very narrow, but many users of free software might fall within it. All of the distributions come with source code, and many of the current users are programmers experimenting with the code. Most of these programmers give their work back to the project and this makes most of their work pretty noncommercial. The loophole probably wouldn't protect the corporations that are using free software simply because it is cheap, but it would still be large enough to allow innovation to continue. A non-commercial community built up around research could still thrive even if Microsoft manages to come up with some patents that are very powerful. + +The world of patents can still constrain the world of free software. Many companies work hard on developing new technology and then rely upon patents to guarantee them a return on investment. These companies have trouble working well with the free software movement because there's no revenue stream to use. A company like Adobe can integrate some neat new streaming technology or compression algorithm and add the cost of a patent license to the price of the product. A free software tool can't. + +This does not preclude the free software world from using some ideas or software. There's no reason why Linux can't run proprietary application software that costs money. Perhaps people will sell licenses for some distributions and patches. Still, the users must shift mental gears when they encounter these packages. + +There are no easy solutions to patent problems. The best news is that proprietary, patented technology rarely comes to dominate the marketplace. There are often ways to work around solutions, and other engineers are great at finding them. Sure, there will be the occasional brilliant lightbulb, transistor, radio, or other solution that is protected by a broad patent, but these will be relatively rare. + +There are a few things that the open source community can do to protect themselves against patents. Right now, many of the efforts at developing open source solutions come after technology emerges. For instance, developing drivers for DVD disks is one of the current challenges at the time that I'm writing this chapter even though the technology has been shipping with many midpriced computers for about a year. + +There is no reason why some ivory-tower, blue-sky research can't take place in a patent-free world of open source. Many companies already allow their researchers to attend conferences and present papers on their open work and classify this as "precompetitive" research. Standards like JPEG or MPEG emerge from committees that pledge not to patent their work. There is no reason why these loose research groups can't be organized around a quasi-BSD or GNU license that forces development to be kept in the open. + +These research groups will probably be poorly funded but much more agile than the corporate teams or even the academic teams. They might be organized around a public newsgroup or mailing list that is organized for the purpose of publicly disclosing ideas. Once they're officially disclosed, no patents can be issued on them. Many companies like IBM and Xerox publish paper journals for defensive purposes. + +Still, the debate about patents will be one that will confound the entire software industry for some time. Many for-profit, proprietary firms are thrown for a loop by some of the patents granted to their competitors. The open source world will have plenty of allies who want to remake the system. + +The patents are probably the most potent legal tool that proprietary software companies can use to threaten the open source world. There is no doubt that the companies will use it to fend off low-rent competition. + +One of the biggest challenges for the free software community will be developing the leadership to undertake these battles. It is one thing to mess around in a garage with your buddies and hang out in some virtual he-man/Microsoft-haters clubhouse cooking up neat code. It's a very different challenge to actually achieve the world domination that the Linux world muses about. When I started writing the book, I thought that an anthem for the free software movement might be Spinal Tap's "Flower People." Now I think it's going to be Buffalo Springfield's "For What It's Worth," which warns, "There's something happening here / What it is ain't exactly clear." + +Tim O'Reilly emphasizes this point. When asked about some of the legal battles, he said, "There's definitely going to be a war over this stuff. When I look back at previous revolutions, I realize how violent they became. They threatened to burn Galileo at the stake. They said 'Take it back,' and he backed down. But it didn't make any difference in the end. But just because there's a backlash doesn't mean that open source won't win in the long run." + +Companies like Microsoft don't let markets and turf just slip away. They have a large budget for marketing their software. They know how to generate positive press and plenty of fear in the hearts of managers who must make decisions. They understand the value of intellectual property, and they aren't afraid of dispatching teams of lawyers to ensure that their markets remain defended. + +The open source community, however, is not without a wide variety of strengths, although it may not be aware of them. In fact, this diffuse power and lack of self-awareness and organization is one of its greatest strengths. There is no powerful leadership telling the open source community "Thou shalt adopt these libraries and write to this API." The people in the trenches are testing code, proposing solutions, and getting their hands dirty while making decisions. The realm is not a juggernaut, a bandwagon, a dreadnought, or an unstoppable freight train roaring down the track. It's creeping kudzu, an algae bloom, a teenage fad, and a rising tide mixed together. + +The strength of the free price shouldn't be underestimated. While the cost isn't really nothing after you add up the price of paying Red Hat, Slackware, SuSE, Debian, or someone else to provide support, it's still much cheaper than the proprietary solutions on the market. Price isn't the only thing on people's minds, but it will always be an important one. + +In the end, though, I think the free software world will flourish because of the ideals it embraces. The principles of open debate, broad circulation, easy access, and complete disclosure are like catnip to kids who crackle with intelligence. Why would anyone want to work in a corporate cubicle with a Dilbert boss when you can spend all night hacking on the coolest tools? Why would you want to join some endless corporate hierarchy when you can dive in and be judged on the value of your code? For these reasons, the free software world can always count on recruiting the best and the brightest. + +This process will continue because the Dilbert-grade bosses aren't so dumb. I know more than a few engineers and early employees at startup firms who received very small stock allowances at IPO time. One had written three of the six systems that were crucial to the company's success on the web. Yet he got less than 1 percent of the shares allocated to the new CEO who had just joined the company. The greed of the non-programming money changers who plumb the venture capital waters will continue to poison the experience of the programmers and drive many to the world of free software. If they're not going to get anything, they might as well keep access to the code they write. + +The open source ideals are also strangely empowering because they force everyone to give up their will to power and control. Even if Richard Stallman, Linus Torvalds, Eric Raymond, and everyone else in the free software world decides that you're a scumbag who should be exiled to Siberia, they can't take away the code from you. That freedom is a very powerful drug. + +The free software movement is rediscovering the same notions that drove the American colonists to rebel against the forces of English oppression. The same words that flowed through the pens of Thomas Paine, Thomas Jefferson, and Benjamin Franklin are just as important today. The free software movement certifies that we are all created equal, with the same rights to life, liberty, and the pursuit of bug-free code. This great nation took many years to evolve and took many bad detours along the way, but in the end, the United States tends to do the right thing. + +The free software movement has many flaws, blemishes, and weaknesses, but I believe that it will also flourish over the years. It will take wrong turns and encounter great obstacles, but in the end the devotion to liberty, fraternity, and equality will lead it to make the right decisions and will outstrip all of its proprietary competitors. + +In the end, the lure of the complete freedom to change, revise, extend, and improve the source code of a project is a powerful drug that creative people can't resist. Shrink-wrapped software's ease-of-use and prepackaged convenience are quite valuable for many people, but its world is static and slow. + +In the end, the power to write code and change it without hiring a team of lawyers to parse agreements between companies ensures that the free software world will gradually win. Corporate organization provides money and stability, but in technology the race is usually won by the swiftest. + +In the end, free software creates wealth, not cash, and wealth is much better than cash. You can't eat currency and you can't build a car with gold. Free software does things and accomplishes tasks without crashing into the blue screen of death. It empowers people. People who create it and share it are building real infrastructure that everyone can use. The corporations can try to control it with intellectual property laws. They can buy people, hornswoggle judges, and co-opt politicians, but they can't offer more than money. + +In the end, information wants to be free. Corporations want to believe that software is a manufactured good like a car or a toaster. They want to pretend it is something that can be consumed only once. In reality, it is much closer to a joke, an idea, or gossip. Who's managed to control those? + +For all of these reasons, this grand free-for-all, this great swapfest of software, this wonderful nonstop slumber party of cooperative knowledge creation, this incredible science project on steroids will grow in strange leaps and unexpected bounds until it swallows the world. There will be battles, there will be armies, there will be spies, there will be snakes, there will be court cases, there will be laws, there will be martyrs, there will be heroes, and there will be traitors. But in the end, information just wants to be free. That's what we love about it. + +1~glossary Glossary + +*{Apache License}* A close cousin of the BSD License. The software comes with few restrictions, and none prevent you from taking a copy of Apache, modifying it, and selling binary versions. The only restriction is that you can't call it Apache. For instance, C2Net markets a derivative of Apache known as Stronghold. + +*{AppleScript}* A text language that can be used to control the visual interface of the Macintosh. It essentially says things like "Open that folder and double click on Adobe Photoshop to start it up. Then open the file named 'Pete's Dog's Picture.'" architecture Computer scientists use the word "architecture" to describe the high-level, strategic planning of a system. A computer architect may decide, for instance, that a new system should come with three multiplier circuits but not four after analyzing the sequence of arithmetic operations that a computer will likely be called upon to execute. If there are often three multiplications that could be done concurrently, then installing three multiplier circuits would increase efficiency. Adding a fourth, however, would be a waste of effort if there were few occasions to use it. In most cases, the term "computer architect" applies only to hardware engineers. All sufficiently complicated software projects, however, have an architect who makes the initial design decisions. + +*{Artistic License}* A license created to protect the original PERL language. Some users dislike the license because it is too complex and filled with loopholes. Bruce Perens writes, "The Artistic License requires you to make modifications free, but then gives you a loophole (in Section 7) that allows you to take modifications private or even place parts of the Artistic-licensed program in the public domain!" + +*{BeOS}* An operating system created by the Be, a company run by exApple executive Jean Louis Gassée. + +*{BSD}* An abbreviation for Berkeley Software Distribution, a package first released by Bill Joy in the 1970s. The term has come to mean both a class of UNIX that was part of the distribution and also the license that protects this software. There are several free versions of BSD UNIX that are well-accepted and well-supported by the free source software community. OpenBSD, NetBSD, and FreeBSD are three of them. Many commercial versions of UNIX, like Sun's Solaris and NeXT's OS, can trace their roots to this distribution. The BSD was originally protected by a license that allowed anyone to freely copy and modify the source code as long as they gave some credit to the University of California at Berkeley. Unlike the GNU GPL, the license does not require the user to release the source code to any modifications. + +*{BSD License}* The original license for BSD software. It placed few restrictions on what you did with the code. The important terms forced you to keep the copyright intact and credit the University of California at Berkeley when you advertise a product. The requirement to include credit is now removed because people realized that they often needed to publish hundreds of acknowledgments for a single CD-ROM. Berkeley removed the term in the hopes that it would set a good example for the rest of the community. + +*{copyleft}* Another term that is sometimes used as a synonym for the GNU General Public License. + +*{Debian Free Software Guidelines}* See Open Source. (www.debian.org) + +*{driver}* Most computers are designed to work with optional devices like modems, disk drives, printers, cameras, and keyboards. A driver is a piece of software that translates the signals sent by the device into a set of signals that can be understood by the operating system. Most operating systems are designed to be modular, so these drivers can be added as an afterthought whenever a user connects a new device. They are usually designed to have a standard structure so other software will work with them. The driver for each mouse, for instance, translates the signals from the mouse into a standard description that includes the position of the mouse and its direction. Drivers are an important point of debate in the free software community because volunteers must often create the drivers. Most manufacturers write the drivers for Windows computers because these customers make up the bulk of their sales. The manufacturers often avoid creating drivers for Linux or BSD systems because they perceive the market to be small. Some manufacturers also cite the GNU GPL as an impediment because they feel that releasing the source code to their drivers publishes important competitive information. + +*{FreeBSD}* The most popular version of BSD. The development team, led by Jordan Hubbard, works hard to provide an easy-to-use tool for computers running the Intel x86 architecture. In recent years, they've tried to branch out into other lines. (www.freebsd.org) + +*{Free Software Foundation}* An organization set up by Richard Stallman to raise money for the creation of new free software. Stallman donates his time to the organization and takes no salary. The money is spent on hiring programmers to create new free software. + +*{GIMP}* The GNU Image Manipulation Program, which can manipulate image files in much the same way as Adobe Photoshop. (www.gimp.org) + +*{GNOME}* The GNU Network Object Model Environment, which might be summarized as "All of the functionality of Microsoft Windows for Linux." It's actually more. There are many enhancements that make the tool easier to use and more flexible than the prototype from Redmond. See also KDE, another package that accomplishes much of the same. (www.gnome.org) + +*{GNU}* A recursive acronym that stands for "GNU is Not UNIX." The project was started by Richard Stallman in the 1980s to fight against the tide of proprietary software. The project began with several very nice programs like GNU Emacs and GCC, the C compiler that was protected by Stallman's GNU General Purpose License. It has since grown to issue software packages that handle many different tasks from games (GNU Chess) to privacy (GNU Privacy Guard). See also GPL and Free Software Foundation (www.gnu.org). Its main goal is to produce a free operating system that provides a user with the ability to do everything they want with software that comes with the source code. + +*{GNU/Linux}* The name some people use for Linux as a way of giving credit to the GNU project for its leadership and contribution of code. + +*{GPL}* An abbreviation that stands for "General Purpose License." +This license was first written by Richard Stallman to control the usage of software created by the GNU project. A user is free to read and modify the source code of a GPL-protected package, but the user must agree to distribute any changes or improvements if they distribute the software at all. Stallman views the license as a way to force people to share their own improvements and contribute back to the project if they benefit from the project's hard work. See also BSD. + +*{higher-level}* languages Modern computer programmers almost always write their software in languages like C, Java, Pascal, or Lisp, which are known as higher-level languages. The word "higher" is a modifier that measures the amount of abstraction available to a programmer. A high-level language might let a programmer say, "Add variable revenues to variable losses to computer profits." A high-level language would be able to figure out just where to find the information about the profits and the losses. A low-level programming language would require the software author to point directly to a location in the memory where the data could be found. + +*{KDE}* The K desktop environment is another toolkit that offers much of the same functionality as Windows. It is controversial because it originally used some proprietary software and some users needed a license. See also GNOME, a similar package that is distributed under the GNU GPL. (www.kde.org) + +*{kernel}* The core of an OS responsible for juggling the different tasks and balancing all of the demands. Imagine a short-order cook who scrambles eggs, toasts bread, chops food, and somehow manages to get an order out in a few minutes. A kernel in an OS juggles the requests to send information to a printer, display a picture on the screen, get data from a website, and a thousand other tasks. + +*{Linux}* The name given to the core of the operating system started by Linus Torvalds in 1991. The word is now generally used to refer to an entire bundle of free software packages that work together. Red Hat Linux, for instance, is a large bundle of software including packages written by many other unrelated projects. + +*{Mozilla Public License}* A cousin of the Netscape Public License that was created to protect the public contributions to the source tree of the Mozilla project. Netscape cannot relicense the modifications to code protected by the MPL, but they can do it to the NPL. See also Netscape Public License. + +*{NetBSD}* One of the original free distributions of BSD. The team focuses on making sure that the software works well on a wide variety of hardware platforms, including relatively rare ones like the Amiga. (www.netbsd.org) + +*{Netscape Public License}* A license created by Netscape when the company decided to release their browser as open source. The license is similar to the BSD License, but it provides special features to Netscape. They're allowed to take snapshots of the open source code and turn them back into a private, proprietary project again. Bruce Perens, one of the unpaid consultants who helped Netscape draft the license, says that the provision was included because Netscape had special contracts with companies to provide a proprietary tool. See also Mozilla Public License. + +*{OpenBSD}* One of the three major versions of BSD available. The development team, led by Theo de Raadt, aims to provide the best possible security by examining the source code in detail and looking for potential holes. (www.openbsd.org) open source A broad term used by the Open Source Initiative (www.opensource.org) to embrace software developed and released under the GNU General Public License, the BSD license, the Artistic License, the X Consortium, and the Netscape License. It includes software licenses that put few restrictions on the redistribution of source code. The Open Source Initiative's definition was adapted from the Debian Free Software Guidelines. The OSI's definition includes 10 criteria, which range from insisting that the software and the source code must be freely redistributable to insisting that the license not discriminate. + +*{Open Source Initiative}* A group created by Eric Raymond, Sam Ockman, Bruce Perens, Larry Augustin, and more than a few others. The group checks licenses to see if they match their definition of open source. If the license fits, then it can wear the term "certified by the OSI." + +*{Symmetric Multi-Processing}* Much of the recent work in operating system design is focused on finding efficient ways to run multiple programs simultaneously on multiple CPU chips. This job is relatively straightforward if the different pieces of software run independently of each other. The complexity grows substantially if the CPUs must exchange information to coordinate their progress. 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+http://www.gnu.org/philosophy/why-free.html + +*{Thompson, Ken, and Dennis Ritchie.}* "The UNIX Time-Sharing System." Communications of the ACM, 1974. + +*{Thygeson, Gordon.}* Apple T-Shirts: A Yearbook of History at Apple Computer. Cupertino, CA: Pomo Publishing, 1998 + +*{Torvalds, Linus.}* "Linus Torvalds: Leader of the Revolution." Transcript of Chat with Linus Torvalds, creator of the Linux OS. ABCNews.com.
"Linux's History." July 31, 1992.
+http://www.li.org/li/linuxhistory.shtml + +*{Valloppillil, Vinod.}* "Open Source Software: A (New?) Development Methodology." Microsoft, Redmond, WA, August 1998. + +*{Wayner, Peter.}* "If SB266 Wants Plaintext, Give Them Plaintext . . . ," Risks Digest, May 23, 1991.
+http://catless.ncl.ac.uk/Risks/11.71.html#subj2
"Should Hackers Spend Years in Prison?" Salon, June 9, 1999.
+http://www.salon.com/tech/feature/1999/06/09/hacker_penalties/index.html +
"Netscape to Release New Browser Engine to Developers." New York Times, December 7, 1999.
"Glory Among the Geeks." Salon, January 1999.
+http://www.salon.com/21st/feature/1999/01/28feature.html + +*{Whitenger, Dave. "Words of a Maddog."}* Linux Today, April 19, 1999.
+http://linuxtoday.com/stories/5118.html + +*{"Web and File Server Comparison: Microsoft Windows NT Server 4.0 and Red Hat Linux 5.2 Upgraded to the Linux 2.2.2 Kernel."}* Mindcraft, April 13, 1999.
+http://www.mindcraft.com/whitepapers/nts4rhlinux.html + +*{Williams, Sam.}* "Linus Has Left the Building." Upside, May 5, 1999.
+http://www.upside.com/Open_Season/ + +*{Williams, Riley.}* "Linux Kernel Vertsion History."
+http://ps.cus.umist.ac.uk/~rhw/kernel.versions.html + +*{Zawinski, Jamie.}* "Resignation and Postmortem."
+http://www.jwz.org/gruntle/nomo.html + +1~other.works Other works by Peter Wayner + +2~ Disappearing Cryptography, Information Hiding: Steganography & Watermarking -# + +Disappearing Cryptography, Information Hiding: Steganography & Watermarking, 2nd ed. by Peter Wayner ISBN 1-55860-769-2 $44.95 + +To order, visit: http://www.wayner.org/books/discrypt2/ + +Disappearing Cryptography, Second Edition describes how to take words, sounds, or images and hide them in digital data so they look like other words, sounds, or images. When used properly, this powerful technique makes it almost impossible to trace the author and the recipient of a message. Conversations can be submerged in the flow of information through the Internet so that no one can know if a conversation exists at all. + +This full revision of the best-selling first edition describes a number of different techniques to hide information. These include encryption, making data incomprehensible; steganography, embedding information into video, audio, or graphics files; watermarking, hiding data in the noise of image or sound files; mimicry, "dressing up" data and making it appear to be other data, and more. + +The second edition also includes an expanded discussion on hiding information with spread-spectrum algorithms, shuffling tricks, and synthetic worlds. Each chapter is divided into sections, first providing an introduction and high-level summary for those who want to understand the concepts without wading through technical explanations, and then presenting greater detail for those who want to write their own programs. To encourage exploration, the author's Web site +www.wayner.org/books/discrypt2/ contains implementations for hiding information in lists, sentences, and images. + +"Disappearing Cryptography is a witty and entertaining look at the world of information hiding. Peter Wayner provides an intuitive perspective of the many techniques, applications, and research directions in the area of steganography. The sheer breadth of topics is outstanding and makes this book truly unique. A must read for those who would like to begin learning about information hiding." --Deepa Kundur, University of Toronto + +"An excellent introduction for private individuals, businesses, and governments who need to under- stand the complex technologies and their effects on protecting privacy, intellectual property and other interests." - David Banisar, Research Fellow, Harvard Information Infrastructure Project, & Deputy Director, Privacy International. + +2~ Translucent Databases -# + +Translucent Databases, a new book by Peter Wayner, comes with more than two dozen examples in Java and SQL code. The book comes with a royalty-free license to use the code for your own projects in any way you wish. + +_* Do you have personal information in your database? + +_* Do you keep les on your customers, your employees, or anyone else? + +_* Do you need to worry about European laws restricting the information you keep? + +_* Do you keep copies of credit card numbers, social security numbers, or other informa- tion that might be useful to identity thieves or insurance fraudsters? + +_* Do you deal with medical records or personal secrets? + +Most database administrators spend some of each day worrying about the information they keep. Some spend all of their time. Caring for information can be a dangerous responsibility. + +This new book, Translucent Databases, describes a different attitude toward protecting the information. Most databases provide elaborate control mechanisms for letting the right people in to see the right records. These tools are well designed and thoroughly tested, but they can only provide so much support. If someone breaks into the operating system itself, all of the data on the hard disk is unveiled. If a clerk, a supervisor, or a system administrator decides to turn traitor, there's nothing anyone can do. + +Translucent databases provide better, deeper protection by scrambling the data with encryption algorithms. The solutions use the minimal amount of encryption to ensure that the database is still functional. In the best applications, the personal and sensitive information is protected but the database still delivers the information. + +Order today at +http://www.wayner.org/books/td/ diff --git a/data/v3/samples/gpl2.fsf.sst b/data/v3/samples/gpl2.fsf.sst new file mode 100644 index 0000000..1d06226 --- /dev/null +++ b/data/v3/samples/gpl2.fsf.sst @@ -0,0 +1,173 @@ +% SiSU 2.0 + +@title: GNU GENERAL PUBLIC LICENSE v2 + +@creator: + :author: Free Software Foundation + +@rights: + :copyright: Copyright 1989, 1991 Free Software Foundation, Inc. 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA. + :license: Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. + +@date: + :published: 1991 + +@classify: + :topic_register: GPL;Software:license;GNU/Linux:License:GPL + +@links: + {Free Software Foundation}http://www.fsf.org + {GPL @ SiSU}http://www.jus.uio.no/sisu/gpl2.fsf + {Markup}http://www.jus.uio.no/sisu/sample/markup/gpl2.fsf.sst + {Syntax}http://www.jus.uio.no/sisu/sample/syntax/gpl2.fsf.sst.html + {Free as In Freedom - Richard Stallman's Crusade for Free Software}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + +@make: + :skin: skin_gnu + +% @promo: sisu_icon, fsf, open_society, sisu + +:A~ GNU GENERAL PUBLIC LICENSE + +:B~ Version 2, June 1991 + +1~ [note] -# + +Copyright (C) 1989, 1991 Free Software Foundation, Inc. 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA + +Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. + +1~ Preamble + +The licenses for most software are designed to take away your freedom to share +and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. This General Public License applies to most of the Free Software Foundation's software and to any other program whose authors commit to using it. (Some other Free Software Foundation software is covered by the GNU Library General Public License instead.) You can apply it to your programs, too. + +When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. + +To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it. + +For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights. + +We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software. + +Also, for each author's protection and ours, we want to make certain that everyone understands that there is no warranty for this free software. If the software is modified by someone else and passed on, we want its recipients to know that what they have is not the original, so that any problems introduced by others will not reflect on the original authors' reputations. + +Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all. + +The precise terms and conditions for copying, distribution and modification follow. + +:C~ GNU GENERAL PUBLIC LICENSE + +1~ TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION + +0. This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you". + +Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does. + +1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program. + +You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. + +2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions: + +a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change. + +b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. + +c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.) + +These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it. + +Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program. + +In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. + +3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following: + +a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, + +b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, + +c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.) + +The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable. + +If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code. + +4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance. + +5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. + +6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. + +7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program. + +If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances. + +It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice. + +This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License. + +8. If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License. + +9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. + +Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation. + +10. If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software which is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally. + +2~ NO WARRANTY + +11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. + +12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. + +:C~ END OF TERMS AND CONDITIONS + +1~ How to Apply These Terms to Your New Programs + +If you develop a new program, and you want it to be of the greatest possible use to the public, the best way to achieve this is to make it free software which everyone can redistribute and change under these terms. + +To do so, attach the following notices to the program. It is safest to attach them to the start of each source file to most effectively convey the exclusion of warranty; and each file should have at least the "copyright" line and a pointer to where the full notice is found. + +<one line to give the program's name and a brief idea of what it does.> + +Copyright (C) <year > <name of author> + +This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version. + +This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details. + +You should have received a copy of the GNU General Public License along with this program; if not, write to the Free Software Foundation, Inc., 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA~{ FSF address changed from: 59 Temple Place, Suite 330, Boston, MA 02111-1307 USA }~ + +Also add information on how to contact you by electronic and paper mail. + +If the program is interactive, make it output a short notice like this when it starts in an interactive mode: + +Gnomovision version 69, Copyright (C) year name of author + +Gnomovision comes with ABSOLUTELY NO WARRANTY; for details type 'show w'. This is free software, and you are welcome to redistribute it under certain conditions; type 'show c' for details. + +The hypothetical commands 'show w' and 'show c' should show the appropriate parts of the General Public License. Of course, the commands you use may be called something other than 'show w' and 'show c'; they could even be mouse-clicks or menu items--whatever suits your program. + +You should also get your employer (if you work as a programmer) or your school, if any, to sign a "copyright disclaimer" for the program, if necessary. Here is a sample; alter the names: + +Yoyodyne, Inc., hereby disclaims all copyright interest in the program 'Gnomovision' (which makes passes at compilers) written by James Hacker. + +<signature of Ty Coon>, 1 April 1989 + +Ty Coon, President of Vice + +This General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Library General Public License instead of this License. + +%% SiSU markup sample Notes: +% SiSU http://www.jus.uio.no/sisu +% SiSU markup for 0.16 and later: +% 0.20.4 header 0~links +% 0.22 may drop image dimensions (rmagick) +% 0.23 utf-8 ß +% 0.38 or later, may use alternative notation for headers, e.g. @title: (instead of 0~title) +% 0.38 document structure alternative markup, experimental (rad) A,B,C,1,2,3 maps to 1,2,3,4,5,6 +% Output: http://www.jus.uio.no/sisu/gpl2.fsf/sisu_manifest.html +% SiSU 0.38 experimental (alternative structure) markup used for this document diff --git a/data/v3/samples/gpl3.fsf.sst b/data/v3/samples/gpl3.fsf.sst new file mode 100644 index 0000000..2767991 --- /dev/null +++ b/data/v3/samples/gpl3.fsf.sst @@ -0,0 +1,296 @@ +% SiSU 2.0 + +@title: GNU GENERAL PUBLIC LICENSE v3 + +@creator: + :author: Free Software Foundation + +@rights: + :copyright: Copyright (C) 2007 Free Software Foundation, Inc. http://fsf.org/ + :license: Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. + +@classify: + :topic_register: GPL;Software:license + +@date: + :published: 2007-06-29 + :available: 2007-06-29 + :valid: 2007-06-29 + +@publisher: SiSU on behalf of the Free Software Foundation + +@links: + {Free Software Foundation}http://www.fsf.org + {GPL3 @ FSF}http://gplv3.fsf.org/ + {GPL @ SiSU}http://www.jus.uio.no/sisu/gpl3.fsf + { Syntax }http://www.jus.uio.no/sisu/sample/syntax/gpl.fsf.sst.html + {GPL3 source text}http://www.gnu.org/licenses/gpl-3.0.txt + {Free as In Freedom - Richard Stallman's Crusade for Free Software}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + +@make: + :skin: skin_gnu + +:A~ GNU GENERAL PUBLIC LICENSE + +:B~ Version 3, 29 June 2007 + +:C~ Copyright (C) 2007 Free Software Foundation, Inc. http://fsf.org/ Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. + +1~ Preamble + +The GNU General Public License is a free, copyleft license for software and other kinds of works. + +The licenses for most software and other practical works are designed to take away your freedom to share and change the works. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change all versions of a program--to make sure it remains free software for all its users. We, the Free Software Foundation, use the GNU General Public License for most of our software; it applies also to any other work released this way by its authors. You can apply it to your programs, too. + +When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for them if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs, and that you know you can do these things. + +To protect your rights, we need to prevent others from denying you these rights or asking you to surrender the rights. Therefore, you have certain responsibilities if you distribute copies of the software, or if you modify it: responsibilities to respect the freedom of others. + +For example, if you distribute copies of such a program, whether gratis or for a fee, you must pass on to the recipients the same freedoms that you received. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights. + +Developers that use the GNU GPL protect your rights with two steps: (1) assert copyright on the software, and (2) offer you this License giving you legal permission to copy, distribute and/or modify it. + +For the developers' and authors' protection, the GPL clearly explains that there is no warranty for this free software. For both users' and authors' sake, the GPL requires that modified versions be marked as changed, so that their problems will not be attributed erroneously to authors of previous versions. + +Some devices are designed to deny users access to install or run modified versions of the software inside them, although the manufacturer can do so. This is fundamentally incompatible with the aim of protecting users' freedom to change the software. The systematic pattern of such abuse occurs in the area of products for individuals to use, which is precisely where it is most unacceptable. Therefore, we have designed this version of the GPL to prohibit the practice for those products. If such problems arise substantially in other domains, we stand ready to extend this provision to those domains in future versions of the GPL, as needed to protect the freedom of users. + +Finally, every program is threatened constantly by software patents. States should not allow patents to restrict development and use of software on general-purpose computers, but in those that do, we wish to avoid the special danger that patents applied to a free program could make it effectively proprietary. To prevent this, the GPL assures that patents cannot be used to render the program non-free. + +The precise terms and conditions for copying, distribution and modification follow. + +:C~ TERMS AND CONDITIONS + +1~0 0. Definitions. + +"This License" refers to version 3 of the GNU General Public License. + +"Copyright" also means copyright-like laws that apply to other kinds of works, such as semiconductor masks. + +"The Program" refers to any copyrightable work licensed under this License. Each licensee is addressed as "you". "Licensees" and "recipients" may be individuals or organizations. + +To "modify" a work means to copy from or adapt all or part of the work in a fashion requiring copyright permission, other than the making of an exact copy. The resulting work is called a "modified version" of the earlier work or a work "based on" the earlier work. + +A "covered work" means either the unmodified Program or a work based on the Program. + +To "propagate" a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well. + +To "convey" a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying. + +An interactive user interface displays "Appropriate Legal Notices" to the extent that it includes a convenient and prominently visible feature that (1) displays an appropriate copyright notice, and (2) tells the user that there is no warranty for the work (except to the extent that warranties are provided), that licensees may convey the work under this License, and how to view a copy of this License. If the interface presents a list of user commands or options, such as a menu, a prominent item in the list meets this criterion. + +1~1 1. Source Code. + +The "source code" for a work means the preferred form of the work for making modifications to it. "Object code" means any non-source form of a work. + +A "Standard Interface" means an interface that either is an official standard defined by a recognized standards body, or, in the case of interfaces specified for a particular programming language, one that is widely used among developers working in that language. + +The "System Libraries" of an executable work include anything, other than the work as a whole, that (a) is included in the normal form of packaging a Major Component, but which is not part of that Major Component, and (b) serves only to enable use of the work with that Major Component, or to implement a Standard Interface for which an implementation is available to the public in source code form. A "Major Component", in this context, means a major essential component (kernel, window system, and so on) of the specific operating system (if any) on which the executable work runs, or a compiler used to produce the work, or an object code interpreter used to run it. + +The "Corresponding Source" for a work in object code form means all the source code needed to generate, install, and (for an executable work) run the object code and to modify the work, including scripts to control those activities. However, it does not include the work's System Libraries, or general-purpose tools or generally available free programs which are used unmodified in performing those activities but which are not part of the work. 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No Surrender of Others' Freedom. + +If conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot convey a covered work so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not convey it at all. For example, if you agree to terms that obligate you to collect a royalty for further conveying from those to whom you convey the Program, the only way you could satisfy both those terms and this License would be to refrain entirely from conveying the Program. + +1~13 13. Use with the GNU Affero General Public License. + +Notwithstanding any other provision of this License, you have permission to link or combine any covered work with a work licensed under version 3 of the GNU Affero General Public License into a single combined work, and to convey the resulting work. The terms of this License will continue to apply to the part which is the covered work, but the special requirements of the GNU Affero General Public License, section 13, concerning interaction through a network will apply to the combination as such. + +1~14 14. Revised Versions of this License. + +The Free Software Foundation may publish revised and/or new versions of the GNU General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. + +Each version is given a distinguishing version number. If the Program specifies that a certain numbered version of the GNU General Public License "or any later version" applies to it, you have the option of following the terms and conditions either of that numbered version or of any later version published by the Free Software Foundation. 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EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. + +1~16 16. 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Interpretation of Sections 15 and 16. + +If the disclaimer of warranty and limitation of liability provided above cannot be given local legal effect according to their terms, reviewing courts shall apply local law that most closely approximates an absolute waiver of all civil liability in connection with the Program, unless a warranty or assumption of liability accompanies a copy of the Program in return for a fee. + +!_ END OF TERMS AND CONDITIONS + +1~ How to Apply These Terms to Your New Programs + +If you develop a new program, and you want it to be of the greatest possible use to the public, the best way to achieve this is to make it free software which everyone can redistribute and change under these terms. + +To do so, attach the following notices to the program. It is safest to attach them to the start of each source file to most effectively state the exclusion of warranty; and each file should have at least the "copyright" line and a pointer to where the full notice is found. + +poem{ + + \ + Copyright (C) \ \ + + This program is free software: you can redistribute it and/or modify + it under the terms of the GNU General Public License as published by + the Free Software Foundation, either version 3 of the License, or + (at your option) any later version. + + This program is distributed in the hope that it will be useful, + but WITHOUT ANY WARRANTY; without even the implied warranty of + MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the + GNU General Public License for more details. + + You should have received a copy of the GNU General Public License + along with this program. If not, see http://www.gnu.org/licenses/. + +}poem + +Also add information on how to contact you by electronic and paper mail. + +If the program does terminal interaction, make it output a short notice like this when it starts in an interactive mode: + +poem{ + + \ Copyright (C) \ \ + This program comes with ABSOLUTELY NO WARRANTY; for details type `show w'. + This is free software, and you are welcome to redistribute it + under certain conditions; type 'show c' for details. + +}poem + +The hypothetical commands 'show w' and 'show c' should show the appropriate parts of the General Public License. Of course, your program's commands might be different; for a GUI interface, you would use an "about box". + +You should also get your employer (if you work as a programmer) or school, if any, to sign a "copyright disclaimer" for the program, if necessary. For more information on this, and how to apply and follow the GNU GPL, see http://www.gnu.org/licenses/. + +The GNU General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Lesser General Public License instead of this License. But first, please read http://www.gnu.org/philosophy/why-not-lgpl.html. diff --git a/data/v3/samples/little_brother.cory_doctorow.sst b/data/v3/samples/little_brother.cory_doctorow.sst new file mode 100644 index 0000000..1fa2658 --- /dev/null +++ b/data/v3/samples/little_brother.cory_doctorow.sst @@ -0,0 +1,6550 @@ +% SiSU 2.0 + +@title: Little Brother + +@creator: + :author: Doctorow, Cory |email doctorow@craphound.com + +@date: + :published: 2008 + +@rights: + :copyright: Copyright (C) Cory Doctorow, 2008. + :illustrations: Richard Wilkinson, 2009 + :license: This book is distributed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. That means:
You are free:
* to Share - to copy, distribute and transmit the work
* to Remix - to adapt the work
Under the following conditions:
* Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
* Noncommercial. You may not use this work for commercial purposes.
* Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.
* For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link http://craphound.com/littlebrother
* Any of the above conditions can be waived if you get my permission
More info here: http://creativecommons.org/licenses/by-nc-sa/3.0/us/
See the end of this file for the complete legalese. [Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License] + +@classify: + :subject: Novel + :topic_register: SiSU:markup sample:book;book:novel:fiction:civil rights|counterculture|young adult|science fiction|computer hackers|terrorism;democracy + :type: fiction + :loc: PZ7.D66237 Lit 2008 + :oclc: 176972381 + :isbn: 9780765319852 + +% After being interrogated for days by the Department of Homeland Security in the aftermath of a major terrorist attack on San Francisco, California, seventeen-year-old Marcus, released into what is now a police state, decides to use his expertise in computer hacking to set things right. + +@make: + :breaks: break=1 + :skin: skin_little_brother + +@links: + { Little Brother home }http://craphound.com/littlebrother + {Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {@ Wikipedia }http://en.wikipedia.org/wiki/Little_Brother_(Cory_Doctorow_novel) + {@ Amazon.com}http://www.amazon.com/Little-Brother-Cory-Doctorow/dp/B002IT5OMA + {@ Barnes & Noble}http://search.barnesandnoble.com/Little-Brother/Cory-Doctorow/e/9780765319852 + {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow + {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + {CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + +:A~ @title @author + +1~cc READ THIS FIRST + +group{ + +This book is distributed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. That means: + +You are free: + +_* to Share - to copy, distribute and transmit the work + +_* to Remix - to adapt the work + +Under the following conditions: + +_* Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). + +_* Noncommercial. You may not use this work for commercial purposes. + +_* Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one. + +_* For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link http://craphound.com/littlebrother + +_* Any of the above conditions can be waived if you get my permission + +More info here: http://creativecommons.org/licenses/by-nc-sa/3.0/ + +See the end of this file for the complete legalese. + +}group + +1~intro INTRODUCTION + +I wrote Little Brother in a white-hot fury between May 7, 2007 and July 2, 2007: exactly eight weeks from the day I thought it up to the day I finished it (Alice, to whom this book is dedicated, had to put up with me clacking out the final chapter at 5AM in our hotel in Rome, where we were celebrating our anniversary). I'd always dreamed of having a book just materialize, fully formed, and come pouring out of my fingertips, no sweat and fuss -- but it wasn't nearly as much fun as I'd thought it would be. There were days when I wrote 10,000 words, hunching over my keyboard in airports, on subways, in taxis -- anywhere I could type. The book was trying to get out of my head, no matter what, and I missed so much sleep and so many meals that friends started to ask if I was unwell. + +When my dad was a young university student in the 1960s, he was one of the few "counterculture" people who thought computers were a good thing. For most young people, computers represented the de-humanization of society. University students were reduced to numbers on a punchcard, each bearing the legend "DO NOT BEND, SPINDLE, FOLD OR MUTILATE," prompting some of the students to wear pins that said, "I AM A STUDENT: DO NOT BEND, SPINDLE, FOLD OR MUTILATE ME." Computers were seen as a means to increase the ability of the authorities to regiment people and bend them to their will. + +When I was a 17, the world seemed like it was just going to get more free. The Berlin Wall was about to come down. Computers -- which had been geeky and weird a few years before -- were everywhere, and the modem I'd used to connect to local bulletin board systems was now connecting me to the entire world through the Internet and commercial online services like GEnie. My lifelong fascination with activist causes went into overdrive as I saw how the main difficulty in activism -- organizing -- was getting easier by leaps and bounds (I still remember the first time I switched from mailing out a newsletter with hand-written addresses to using a database with mail-merge). In the Soviet Union, communications tools were being used to bring information -- and revolution -- to the farthest-flung corners of the largest authoritarian state the Earth had ever seen. + +But 17 years later, things are very different. The computers I love are being co-opted, used to spy on us, control us, snitch on us. The National Security Agency has illegally wiretapped the entire USA and gotten away with it. Car rental companies and mass transit and traffic authorities are watching where we go, sending us automated tickets, finking us out to busybodies, cops and bad guys who gain illicit access to their databases. The Transport Security Administration maintains a "no-fly" list of people who'd never been convicted of any crime, but who are nevertheless considered too dangerous to fly. The list's contents are secret. The rule that makes it enforceable is secret. The criteria for being added to the list are secret. It has four-year-olds on it. And US senators. And decorated veterans -- actual war heroes. + +The 17 year olds I know understand to a nicety just how dangerous a computer can be. The authoritarian nightmare of the 1960s has come home for them. The seductive little boxes on their desks and in their pockets watch their every move, corral them in, systematically depriving them of those new freedoms I had enjoyed and made such good use of in my young adulthood. + +What's more, kids were clearly being used as guinea-pigs for a new kind of technological state that all of us were on our way to, a world where taking a picture was either piracy (in a movie theater or museum or even a Starbucks), or terrorism (in a public place), but where we could be photographed, tracked and logged hundreds of times a day by every tin-pot dictator, cop, bureaucrat and shop-keeper. A world where any measure, including torture, could be justified just by waving your hands and shouting "Terrorism! 9/11! Terrorism!" until all dissent fell silent. + +We don't have to go down that road. + +If you love freedom, if you think the human condition is dignified by privacy, by the right to be left alone, by the right to explore your weird ideas provided you don't hurt others, then you have common cause with the kids whose web-browsers and cell phones are being used to lock them up and follow them around. + +If you believe that the answer to bad speech is more speech -- not censorship -- then you have a dog in the fight. + +If you believe in a society of laws, a land where our rulers have to tell us the rules, and have to follow them too, then you're part of the same struggle that kids fight when they argue for the right to live under the same Bill of Rights that adults have. + +This book is meant to be part of the conversation about what an information society means: does it mean total control, or unheard-of liberty? It's not just a noun, it's a verb, it's something you do. + +2~ DO SOMETHING + +This book is meant to be something you do, not just something you read. The technology in this book is either real or nearly real. You can build a lot of it. You can share it and remix it (see THE COPYRIGHT THING, below). You can use the ideas to spark important discussions with your friends and family. You can use those ideas to defeat censorship and get onto the free Internet, even if your government, employer or school doesn't want you to. + +Making stuff: The folks at Instructables have put up some killer HOWTOs for building the technology in this book. It's easy and incredibly fun. There's nothing so rewarding in this world as making stuff, especially stuff that makes you more free: http://www.instructables.com/member/w1n5t0n/ + +Discussions: There's an educator's manual for this book that my publisher, Tor, has put together that has tons of ideas for classroom, reading group and home discussions of the ideas in it: http://www.tor-forge.com/static/Little_Brother_Readers_Guide.pdf + +Defeat censorship: The afterword for this book has lots of resources for increasing your online freedom, blocking the snoops and evading the censorware blocks. The more people who know about this stuff, the better. + +Your stories: I'm collecting stories of people who've used technology to get the upper hand when confronted with abusive authority. I'm going to be including the best of these in a special afterword to the UK edition (see below) of the book, and I'll be putting them online as well. Send me your stories at doctorow@craphound.com, with the subject line "Abuses of Authority". + +2~ GREAT BRITAIN + +I'm a Canadian, and I've lived in lots of places (including San Francisco, the setting for Little Brother), and now I live in London, England, with my wife Alice and our little daughter, Poesy. I've lived here (off and on) for five years now, and though I love it to tiny pieces, there's one thing that's always bugged me: my books aren't available here. Some stores carried them as special items, imported from the USA, but it wasn't published by a British publisher. + +That's changed! HarperCollins UK has bought the British rights to this book (along with my next young adult novel, FOR THE WIN), and they're publishing it just a few months after the US edition, on November 17, 2008 (the day after I get back from my honeymoon!). + +UPDATE: November 27, 2008: And it's on shelves now! The HarperCollins edition's a knockout, too! + +I'm so glad about this, I could bust, honestly. Not just because they're finally selling my books in my adopted homeland, but because /{I'm raising a daughter here, dammit}/, and the surveillance and control mania in this country is starting to scare me bloodless. It seems like the entire police and governance system in Britain has fallen in love with DNA-swabbing, fingerprinting and video-recording everyone, on the off chance that someday you might do something wrong. In early 2008, the head of Scotland Yard seriously proposed taking DNA from /{five-year-olds}/ who display "offending traits" because they'll probably grow up to be criminals. The next week, the London police put up posters asking us all to turn in people who seem to be taking pictures of the ubiquitous CCTV spy-cameras because anyone who pays too much attention to the surveillance machine is probably a terrorist. + +America isn't the only country that lost its mind this decade. Britain's right there in the nuthouse with it, dribbling down its shirt front and pointing its finger at the invisible bogeymen and screaming until it gets its meds. + +We need to be having this conversation all over the planet. + +Want to get a copy in the UK? Sure thing! http://craphound.com/littlebrother/buy/#uk + +2~ OTHER EDITIONS + +My agent, Russell Galen (and his sub-agent Danny Baror) did an amazing job of pre-selling rights to Little Brother in many languages and formats. Here's the list as of today (May 4, 2008). I'll be updating it as more editions are sold, so feel free to grab another copy of this file (http://craphound.com/littlebrother/download) if there's an edition you're hoping to see, or see http://craphound.com/littlebrother/buy/ for links to buy all the currently shipping editions. + +_* Audiobook from Random House: http://www.randomhouse.com/audio/littlebrotheraudiobook + +A condition of my deal with Random House is that they're not allowed to release this on services that use "DRM" (Digital Rights Management) systems intended to control use and copying. That means that you won't find this book on Audible or iTunes, because Audible refuses to sell books without DRM (even if the author and publisher don't want DRM), and iTunes only carries Audible audiobooks. However, you can buy the MP3 file direct from RandomHouse or many other fine etailers, or through this widget: http://www.zipidee.com/zipidAudioPreview.aspx?aid=c5a8e946-fd2c-4b9e-a748-f297bba17de8 + +_* My foreign rights agent, Danny Baror, has presold a number of foreign editions: + +_* Greece: Pataki + +_* Russia: AST Publishing + +_* France: Universe Poche + +_* Norway: Det Norske Samlaget + +No publication dates yet for these, but I'll keep updating this file as more information is available. You can also subscribe to my mailing list for more info. + +2~ THE COPYRIGHT THING + +The Creative Commons license at the top of this file probably tipped you off to the fact that I've got some pretty unorthodox views about copyright. Here's what I think of it, in a nutshell: a little goes a long way, and more than that is too much. + +I like the fact that copyright lets me sell rights to my publishers and film studios and so on. It's nice that they can't just take my stuff without permission and get rich on it without cutting me in for a piece of the action. I'm in a pretty good position when it comes to negotiating with these companies: I've got a great agent and a decade's experience with copyright law and licensing (including a stint as a delegate at WIPO, the UN agency that makes the world's copyright treaties). What's more, there's just not that many of these negotiations -- even if I sell fifty or a hundred different editions of Little Brother (which would put it in top millionth of a percentile for fiction), that's still only a hundred negotiations, which I could just about manage. + +I /{hate}/ the fact that fans who want to do what readers have always done are expected to play in the same system as all these hotshot agents and lawyers. It's just /{stupid}/ to say that an elementary school classroom should have to talk to a lawyer at a giant global publisher before they put on a play based on one of my books. It's ridiculous to say that people who want to "loan" their electronic copy of my book to a friend need to get a /{license}/ to do so. Loaning books has been around longer than any publisher on Earth, and it's a fine thing. + +I recently saw Neil Gaiman give a talk at which someone asked him how he felt about piracy of his books. He said, "Hands up in the audience if you discovered your favorite writer for free -- because someone loaned you a copy, or because someone gave it to you? Now, hands up if you found your favorite writer by walking into a store and plunking down cash." Overwhelmingly, the audience said that they'd discovered their favorite writers for free, on a loan or as a gift. When it comes to my favorite writers, there's no boundaries: I'll buy every book they publish, just to own it (sometimes I buy two or three, to give away to friends who /{must}/ read those books). I pay to see them live. I buy t-shirts with their book-covers on them. I'm a customer for life. + +Neil went on to say that he was part of the tribe of readers, the tiny minority of people in the world who read for pleasure, buying books because they love them. One thing he knows about everyone who downloads his books on the Internet without permission is that they're /{readers}/, they're people who love books. + +People who study the habits of music-buyers have discovered something curious: the biggest pirates are also the biggest spenders. If you pirate music all night long, chances are you're one of the few people left who also goes to the record store (remember those?) during the day. You probably go to concerts on the weekend, and you probably check music out of the library too. If you're a member of the red-hot music-fan tribe, you do lots of /{everything}/ that has to do with music, from singing in the shower to paying for black-market vinyl bootlegs of rare Eastern European covers of your favorite death-metal band. + +Same with books. I've worked in new bookstores, used bookstores and libraries. I've hung out in pirate ebook ("bookwarez") places online. I'm a stone used bookstore junkie, and I go to book fairs for fun. And you know what? It's the same people at all those places: book fans who do lots of everything that has to do with books. I buy weird, fugly pirate editions of my favorite books in China because they're weird and fugly and look great next to the eight or nine other editions that I paid full-freight for of the same books. I check books out of the library, google them when I need a quote, carry dozens around on my phone and hundreds on my laptop, and have (at this writing) more than 10,000 of them in storage lockers in London, Los Angeles and Toronto. + +If I could loan out my physical books without giving up possession of them, I /{would}/. The fact that I can do so with digital files is not a bug, it's a feature, and a damned fine one. It's embarrassing to see all these writers and musicians and artists bemoaning the fact that art just got this wicked new feature: the ability to be shared without losing access to it in the first place. It's like watching restaurant owners crying down their shirts about the new free lunch machine that's feeding the world's starving people because it'll force them to reconsider their business-models. Yes, that's gonna be tricky, but let's not lose sight of the main attraction: free lunches! + +Universal access to human knowledge is in our grasp, for the first time in the history of the world. This is not a bad thing. + +In case that's not enough for you, here's my pitch on why giving away ebooks makes sense at this time and place: + +Giving away ebooks gives me artistic, moral and commercial satisfaction. The commercial question is the one that comes up most often: how can you give away free ebooks and still make money? + +For me -- for pretty much every writer -- the big problem isn't piracy, it's obscurity (thanks to Tim O'Reilly for this great aphorism). Of all the people who failed to buy this book today, the majority did so because they never heard of it, not because someone gave them a free copy. Mega-hit best-sellers in science fiction sell half a million copies -- in a world where 175,000 attend the San Diego Comic Con alone, you've got to figure that most of the people who "like science fiction" (and related geeky stuff like comics, games, Linux, and so on) just don't really buy books. I'm more interested in getting more of that wider audience into the tent than making sure that everyone who's in the tent bought a ticket to be there. + +Ebooks are verbs, not nouns. You copy them, it's in their nature. And many of those copies have a destination, a person they're intended for, a hand-wrought transfer from one person to another, embodying a personal recommendation between two people who trust each other enough to share bits. That's the kind of thing that authors (should) dream of, the proverbial sealing of the deal. By making my books available for free pass-along, I make it easy for people who love them to help other people love them. + +What's more, I don't see ebooks as substitute for paper books for most people. It's not that the screens aren't good enough, either: if you're anything like me, you already spend every hour you can get in front of the screen, reading text. But the more computer-literate you are, the less likely you are to be reading long-form works on those screens -- that's because computer-literate people do more things with their computers. We run IM and email and we use the browser in a million diverse ways. We have games running in the background, and endless opportunities to tinker with our music libraries. The more you do with your computer, the more likely it is that you'll be interrupted after five to seven minutes to do something else. That makes the computer extremely poorly suited to reading long-form works off of, unless you have the iron self-discipline of a monk. + +The good news (for writers) is that this means that ebooks on computers are more likely to be an enticement to buy the printed book (which is, after all, cheap, easily had, and easy to use) than a substitute for it. You can probably read just enough of the book off the screen to realize you want to be reading it on paper. + +So ebooks sell print books. Every writer I've heard of who's tried giving away ebooks to promote paper books has come back to do it again. That's the commercial case for doing free ebooks. + +Now, onto the artistic case. It's the twenty-first century. Copying stuff is never, ever going to get any harder than it is today (or if it does, it'll be because civilization has collapsed, at which point we'll have other problems). Hard drives aren't going to get bulkier, more expensive, or less capacious. Networks won't get slower or harder to access. If you're not making art with the intention of having it copied, you're not really making art for the twenty-first century. There's something charming about making work you don't want to be copied, in the same way that it's nice to go to a Pioneer Village and see the olde-timey blacksmith shoeing a horse at his traditional forge. But it's hardly, you know, /{contemporary}/. I'm a science fiction writer. It's my job to write about the future (on a good day) or at least the present. Art that's not supposed to be copied is from the past. + +Finally, let's look at the moral case. Copying stuff is natural. It's how we learn (copying our parents and the people around us). My first story, written when I was six, was an excited re-telling of Star Wars, which I'd just seen in the theater. Now that the Internet -- the world's most efficient copying machine -- is pretty much everywhere, our copying instinct is just going to play out more and more. There's no way I can stop my readers, and if I tried, I'd be a hypocrite: when I was 17, I was making mix-tapes, photocopying stories, and generally copying in every way I could imagine. If the Internet had been around then, I'd have been using it to copy as much as I possibly could. + +There's no way to stop it, and the people who try end up doing more harm than piracy ever did. The record industry's ridiculous holy war against file-sharers (more than 20,000 music fans sued and counting!) exemplifies the absurdity of trying to get the food-coloring out of the swimming pool. If the choice is between allowing copying or being a frothing bully lashing out at anything he can reach, I choose the former. + +2~ DONATIONS AND A WORD TO TEACHERS AND LIBRARIANS + +Every time I put a book online for free, I get emails from readers who want to send me donations for the book. I appreciate their generous spirit, but I'm not interested in cash donations, because my publishers are really important to me. They contribute immeasurably to the book, improving it, introducing it to audience I could never reach, helping me do more with my work. I have no desire to cut them out of the loop. + +But there has to be some good way to turn that generosity to good use, and I think I've found it. + +Here's the deal: there are lots of teachers and librarians who'd love to get hard-copies of this book into their kids' hands, but don't have the budget for it (teachers in the US spend around $1,200 out of pocket each on classroom supplies that their budgets won't stretch to cover, which is why I sponsor a classroom at Ivanhoe Elementary in my old neighborhood in Los Angeles; you can adopt a class yourself here: http://www.adoptaclassroom.org/). + +There are generous people who want to send some cash my way to thank me for the free ebooks. + +I'm proposing that we put them together. + +If you're a teacher or librarian and you want a free copy of Little Brother, email freelittlebrother@gmail.com with your name and the name and address of your school. It'll be posted to http://craphound.com/littlebrother/category/donate/ by my fantastic helper, Olga Nunes, so that potential donors can see it. + +If you enjoyed the electronic edition of Little Brother and you want to donate something to say thanks, go to http://craphound.com/littlebrother/donate/ and find a teacher or librarian you want to support. Then go to Amazon, BN.com, or your favorite electronic bookseller and order a copy to the classroom, then email a copy of the receipt (feel free to delete your address and other personal info first!) to freelittlebrother@gmail.com so that Olga can mark that copy as sent. If you don't want to be publicly acknowledged for your generosity, let us know and we'll keep you anonymous, otherwise we'll thank you on the donate page. + +I have no idea if this will end up with hundreds, dozens or just a few copies going out -- but I have high hopes! + +1~dedication DEDICATION + +For Alice, who makes me whole + +1~quotes QUOTES + +group{ + +"A rousing tale of techno-geek rebellion, as necessary and dangerous as file sharing, free speech, and bottled water on a plane." + +*{Scott Westerfeld}*, author of UGLIES and EXTRAS + +}group + +group{ + +"I can talk about Little Brother in terms of its bravura political speculation or its brilliant uses of technology -- each of which make this book a must-read -- but, at the end of it all, I'm haunted by the universality of Marcus's rite-of-passage and struggle, an experience any teen today is going to grasp: the moment when you choose what your life will mean and how to achieve it." + +*{Steven C Gould}*, author of JUMPER and REFLEX + +}group + +group{ + +I'd recommend Little Brother over pretty much any book I've read this year, and I'd want to get it into the hands of as many smart 13 year olds, male and female, as I can. + +Because I think it'll change lives. Because some kids, maybe just a few, won't be the same after they've read it. Maybe they'll change politically, maybe technologically. Maybe it'll just be the first book they loved or that spoke to their inner geek. Maybe they'll want to argue about it and disagree with it. Maybe they'll want to open their computer and see what's in there. I don't know. It made me want to be 13 again right now and reading it for the first time, and then go out and make the world better or stranger or odder. It's a wonderful, important book, in a way that renders its flaws pretty much meaningless. + +*{Neil Gaiman}*, author of ANANSI BOYS + +}group + +group{ + +Little Brother is a scarily realistic adventure about how homeland security technology could be abused to wrongfully imprison innocent Americans. A teenage hacker-turned-hero pits himself against the government to fight for his basic freedoms. This book is action-packed with tales of courage, technology, and demonstrations of digital disobedience as the technophile's civil protest." + +*{Bunnie Huang}*, author of HACKING THE XBOX + +}group + +group{ + +Cory Doctorow is a fast and furious storyteller who gets all the details of alternate reality gaming right, while offering a startling, new vision of how these games might play out in the high-stakes context of a terrorist attack. Little Brother is a brilliant novel with a bold argument: hackers and gamers might just be our country's best hope for the future. + +*{Jane McGonical}*, Designer, I Love Bees + +}group + +group{ + + +The right book at the right time from the right author -- and, not entirely coincidentally, Cory Doctorow's best novel yet. + +*{John Scalzi}*, author of OLD MAN'S WAR + +}group + +group{ + +It's about growing up in the near future where things have kept going on the way they've been going, and it's about hacking as a habit of mind, but mostly it's about growing up and changing and looking at the world and asking what you can do about that. The teenage voice is pitch-perfect. I couldn't put it down, and I loved it. + +*{Jo Walton}*, author of FARTHING + +}group + +group{ + +A worthy younger sibling to Orwell's 1984, Cory Doctorow's LITTLE BROTHER is lively, precocious, and most importantly, a little scary. + +*{Brian K Vaughn}*, author of Y: THE LAST MAN + +}group + +group{ + +"Little Brother" sounds an optimistic warning. It extrapolates from current events to remind us of the ever-growing threats to liberty. But it also notes that liberty ultimately resides in our individual attitudes and +actions. In our increasingly authoritarian world, I especially hope that teenagers and young adults will read it -- and then persuade their peers, parents and teachers to follow suit. + +*{Dan Gillmor}*, author of WE, THE MEDIA + +}group + +1~bookstores ABOUT THE BOOKSTORE DEDICATIONS + +Every chapter of this file has been dedicated to a different bookstore, and in each case, it's a store that I love, a store that's helped me discover books that opened my mind, a store that's helped my career along. The stores didn't pay me anything for this -- I haven't even told them about it -- but it seems like the right thing to do. After all, I'm hoping that you'll read this ebook and decide to buy the paper book, so it only makes sense to suggest a few places you can pick it up! + +1~ Chapter 1 + +_1 /{ [This chapter is dedicated to BakkaPhoenix Books in Toronto, Canada.~{ BakkaPhoenix Books: http://www.bakkaphoenixbooks.com/ 697 Queen Street West, Toronto ON Canada M6J1E6, +1 416 963 9993 }~ Bakka is the oldest science fiction bookstore in the world, and it made me the mutant I am today. I wandered in for the first time around the age of 10 and asked for some recommendations. Tanya Huff (yes, _{the}_ Tanya Huff, but she wasn't a famous writer back then!) took me back into the used section and pressed a copy of H. Beam Piper's "Little Fuzzy" into my hands, and changed my life forever. By the time I was 18, I was working at Bakka -- I took over from Tanya when she retired to write full time -- and I learned life-long lessons about how and why people buy books. I think every writer should work at a bookstore (and plenty of writers have worked at Bakka over the years! For the 30th anniversary of the store, they put together an anthology of stories by Bakka writers that included work by Michelle Sagara (AKA Michelle West), Tanya Huff, Nalo Hopkinson, Tara Tallan --and me!)] }/ + +I'm a senior at Cesar Chavez high in San Francisco's sunny Mission district, and that makes me one of the most surveilled people in the world. My name is Marcus Yallow, but back when this story starts, I was going by w1n5t0n. Pronounced "Winston." + +/{Not}/ pronounced "Double-you-one-enn-five-tee-zero-enn" -- unless you're a clueless disciplinary officer who's far enough behind the curve that you still call the Internet "the information superhighway." + +I know just such a clueless person, and his name is Fred Benson, one of three vice-principals at Cesar Chavez. He's a sucking chest wound of a human being. But if you're going to have a jailer, better a clueless one than one who's really on the ball. + +"Marcus Yallow," he said over the PA one Friday morning. The PA isn't very good to begin with, and when you combine that with Benson's habitual mumble, you get something that sounds more like someone struggling to digest a bad burrito than a school announcement. But human beings are good at picking their names out of audio confusion -- it's a survival trait. + +I grabbed my bag and folded my laptop three-quarters shut -- I didn't want to blow my downloads -- and got ready for the inevitable. + +"Report to the administration office immediately." + +My social studies teacher, Ms Galvez, rolled her eyes at me and I rolled my eyes back at her. The Man was always coming down on me, just because I go through school firewalls like wet kleenex, spoof the gait-recognition software, and nuke the snitch chips they track us with. Galvez is a good type, anyway, never holds that against me (especially when I'm helping get with her webmail so she can talk to her brother who's stationed in Iraq). + +My boy Darryl gave me a smack on the ass as I walked past. I've known Darryl since we were still in diapers and escaping from play-school, and I've been getting him into and out of trouble the whole time. I raised my arms over my head like a prizefighter and made my exit from Social Studies and began the perp-walk to the office. + +I was halfway there when my phone went. That was another no-no -- phones are muy prohibido at Chavez High -- but why should that stop me? I ducked into the toilet and shut myself in the middle stall (the furthest stall is always grossest because so many people head straight for it, hoping to escape the smell and the squick -- the smart money and good hygiene is down the middle). I checked the phone -- my home PC had sent it an email to tell it that there was something new up on Harajuku Fun Madness, which happens to be the best game ever invented. + +I grinned. Spending Fridays at school was teh suck anyway, and I was glad of the excuse to make my escape. + +I ambled the rest of the way to Benson's office and tossed him a wave as I sailed through the door. + +"If it isn't Double-you-one-enn-five-tee-zero-enn," he said. Fredrick Benson -- Social Security number 545-03-2343, date of birth August 15 1962, mother's maiden name Di Bona, hometown Petaluma -- is a lot taller than me. I'm a runty 5'8", while he stands 6'7", and his college basketball days are far enough behind him that his chest muscles have turned into saggy man-boobs that were painfully obvious through his freebie dot-com polo-shirts. He always looks like he's about to slam-dunk your ass, and he's really into raising his voice for dramatic effect. Both these start to lose their efficacy with repeated application. + +"Sorry, nope," I said. "I never heard of this R2D2 character of yours." + +"W1n5t0n," he said, spelling it out again. He gave me a hairy eyeball and waited for me to wilt. Of course it was my handle, and had been for years. It was the identity I used when I was posting on message-boards where I was making my contributions to the field of applied security research. You know, like sneaking out of school and disabling the minder-tracer on my phone. But he didn't know that this was my handle. Only a small number of people did, and I trusted them all to the end of the earth. + +"Um, not ringing any bells," I said. I'd done some pretty cool stuff around school using that handle -- I was very proud of my work on snitch-tag killers -- and if he could link the two identities, I'd be in trouble. No one at school ever called me w1n5t0n or even Winston. Not even my pals. It was Marcus or nothing. + +Benson settled down behind his desk and tapped his class-ring nervously on his blotter. He did this whenever things started to go bad for him. Poker players call stuff like this a "tell" -- something that let you know what was going on in the other guy's head. I knew Benson's tells backwards and forwards. + +"Marcus, I hope you realize how serious this is." + +"I will just as soon as you explain what this is, sir." I always say "sir" to authority figures when I'm messing with them. It's my own tell. + +He shook his head at me and looked down, another tell. Any second now, he was going to start shouting at me. "Listen, kiddo! It's time you came to grips with the fact that we know about what you've been doing, and that we're not going to be lenient about it. You're going to be lucky if you're not expelled before this meeting is through. Do you want to graduate?" + +"Mr Benson, you still haven't explained what the problem is --" + +He slammed his hand down on the desk and then pointed his finger at me. "The /{problem}/, Mr Yallow, is that you've been engaged in criminal conspiracy to subvert this school's security system, and you have supplied security countermeasures to your fellow students. You know that we expelled Graciella Uriarte last week for using one of your devices." Uriarte had gotten a bad rap. She'd bought a radio-jammer from a head-shop near the 16th Street BART station and it had set off the countermeasures in the school hallway. Not my doing, but I felt for her. + +"And you think I'm involved in that?" + +"We have reliable intelligence indicating that you are w1n5t0n" -- again, he spelled it out, and I began to wonder if he hadn't figured out that the 1 was an I and the 5 was an S. "We know that this w1n5t0n character is responsible for the theft of last year's standardized tests." That actually hadn't been me, but it was a sweet hack, and it was kind of flattering to hear it attributed to me. "And therefore liable for several years in prison unless you cooperate with me." + +"You have 'reliable intelligence'? I'd like to see it." + +He glowered at me. "Your attitude isn't going to help you." + +"If there's evidence, sir, I think you should call the police and turn it over to them. It sounds like this is a very serious matter, and I wouldn't want to stand in the way of a proper investigation by the duly constituted authorities." + +"You want me to call the police." + +"And my parents, I think. That would be for the best." + +We stared at each other across the desk. He'd clearly expected me to fold the second he dropped the bomb on me. I don't fold. I have a trick for staring down people like Benson. I look slightly to the left of their heads, and think about the lyrics to old Irish folk songs, the kinds with three hundred verses. It makes me look perfectly composed and unworried. + +/{And the wing was on the bird and the bird was on the egg and the egg was in the nest and the nest was on the leaf and the leaf was on the twig and the twig was on the branch and the branch was on the limb and the limb was in the tree and the tree was in the bog -- the bog down in the valley-oh! High-ho the rattlin' bog, the bog down in the valley-oh --}/ + +"You can return to class now," he said. "I'll call on you once the police are ready to speak to you." + +"Are you going to call them now?" + +"The procedure for calling in the police is complicated. I'd hoped that we could settle this fairly and quickly, but since you insist --" + +"I can wait while you call them is all," I said. "I don't mind." + +He tapped his ring again and I braced for the blast. + +"/{Go!}/" he yelled. "Get the hell out of my office, you miserable little --" + +I got out, keeping my expression neutral. He wasn't going to call the cops. If he'd had enough evidence to go to the police with, he would have called them in the first place. He hated my guts. I figured he'd heard some unverified gossip and hoped to spook me into confirming it. + +I moved down the corridor lightly and sprightly, keeping my gait even and measured for the gait-recognition cameras. These had been installed only a year before, and I loved them for their sheer idiocy. Beforehand, we'd had face-recognition cameras covering nearly every public space in school, but a court ruled that was unconstitutional. So Benson and a lot of other paranoid school administrators had spent our textbook dollars on these idiot cameras that were supposed to be able to tell one person's walk from another. Yeah, right. + +I got back to class and sat down again, Ms Galvez warmly welcoming me back. I unpacked the school's standard-issue machine and got back into classroom mode. The SchoolBooks were the snitchiest technology of them all, logging every keystroke, watching all the network traffic for suspicious keywords, counting every click, keeping track of every fleeting thought you put out over the net. We'd gotten them in my junior year, and it only took a couple months for the shininess to wear off. Once people figured out that these "free" laptops worked for the man -- and showed a never-ending parade of obnoxious ads to boot -- they suddenly started to feel very heavy and burdensome. + +Cracking my SchoolBook had been easy. The crack was online within a month of the machine showing up, and there was nothing to it -- just download a DVD image, burn it, stick it in the SchoolBook, and boot it while holding down a bunch of different keys at the same time. The DVD did the rest, installing a whole bunch of hidden programs on the machine, programs that would stay hidden even when the Board of Ed did its daily remote integrity checks of the machines. Every now and again I had to get an update for the software to get around the Board's latest tests, but it was a small price to pay to get a little control over the box. + +I fired up IMParanoid, the secret instant messenger that I used when I wanted to have an off-the-record discussion right in the middle of class. Darryl was already logged in. + +> The game's afoot! Something big is going down with Harajuku Fun Madness, dude. You in? + +> No. Freaking. Way. If I get caught ditching a third time, I'm expelled. Man, you know that. We'll go after school. + +> You've got lunch and then study-hall, right? That's two hours. Plenty of time to run down this clue and get back before anyone misses us. I'll get the whole team out. + +Harajuku Fun Madness is the best game ever made. I know I already said that, but it bears repeating. It's an ARG, an Alternate Reality Game, and the story goes that a gang of Japanese fashion-teens discovered a miraculous healing gem at the temple in Harajuku, which is basically where cool Japanese teenagers invented every major subculture for the past ten years. They're being hunted by evil monks, the Yakuza (AKA the Japanese mafia), aliens, tax-inspectors, parents, and a rogue artificial intelligence. They slip the players coded messages that we have to decode and use to track down clues that lead to more coded messages and more clues. + +Imagine the best afternoon you've ever spent prowling the streets of a city, checking out all the weird people, funny hand-bills, street-maniacs, and funky shops. Now add a scavenger hunt to that, one that requires you to research crazy old films and songs and teen culture from around the world and across time and space. And it's a competition, with the winning team of four taking a grand prize of ten days in Tokyo, chilling on Harajuku bridge, geeking out in Akihabara, and taking home all the Astro Boy merchandise you can eat. Except that he's called "Atom Boy" in Japan. + +That's Harajuku Fun Madness, and once you've solved a puzzle or two, you'll never look back. + +> No man, just no. NO. Don't even ask. + +> I need you D. You're the best I've got. I swear I'll get us in and out without anyone knowing it. You know I can do that, right? + +> I know you can do it + +> So you're in? + +> Hell no + +> Come on, Darryl. You're not going to your deathbed wishing you'd spent more study periods sitting in school + +> I'm not going to go to my deathbed wishing I'd spent more time playing ARGs either + +> Yeah but don't you think you might go to your death-bed wishing you'd spent more time with Vanessa Pak? + +Van was part of my team. She went to a private girl's school in the East Bay, but I knew she'd ditch to come out and run the mission with me. Darryl has had a crush on her literally for years -- even before puberty endowed her with many lavish gifts. Darryl had fallen in love with her mind. Sad, really. + +> You suck + +> You're coming? + +He looked at me and shook his head. Then he nodded. I winked at him and set to work getting in touch with the rest of my team. + +# + +I wasn't always into ARGing. I have a dark secret: I used to be a LARPer. LARPing is Live Action Role Playing, and it's just about what it sounds like: running around in costume, talking in a funny accent, pretending to be a super-spy or a vampire or a medieval knight. It's like Capture the Flag in monster-drag, with a bit of Drama Club thrown in, and the best games were the ones we played in Scout Camps out of town in Sonoma or down on the Peninsula. Those three-day epics could get pretty hairy, with all-day hikes, epic battles with foam-and-bamboo swords, casting spells by throwing beanbags and shouting "Fireball!" and so on. Good fun, if a little goofy. Not nearly as geeky as talking about what your elf planned on doing as you sat around a table loaded with Diet Coke cans and painted miniatures, and more physically active than going into a mouse-coma in front of a massively multiplayer game at home. + +The thing that got me into trouble were the mini-games in the hotels. Whenever a science fiction convention came to town, some LARPer would convince them to let us run a couple of six-hour mini-games at the con, piggybacking on their rental of the space. Having a bunch of enthusiastic kids running around in costume lent color to the event, and we got to have a ball among people even more socially deviant than us. + +The problem with hotels is that they have a lot of non-gamers in them, too -- and not just sci-fi people. Normal people. From states that begin and end with vowels. On holidays. + +And sometimes those people misunderstand the nature of a game. + +Let's just leave it at that, OK? + +# + +Class ended in ten minutes, and that didn't leave me with much time to prepare. The first order of business were those pesky gait-recognition cameras. Like I said, they'd started out as face-recognition cameras, but those had been ruled unconstitutional. As far as I know, no court has yet determined whether these gait-cams are any more legal, but until they do, we're stuck with them. + +"Gait" is a fancy word for the way you walk. People are pretty good at spotting gaits -- next time you're on a camping trip, check out the bobbing of the flashlight as a distant friend approaches you. Chances are you can identify him just from the movement of the light, the characteristic way it bobs up and down that tells our monkey brains that this is a person approaching us. + +Gait recognition software takes pictures of your motion, tries to isolate you in the pics as a silhouette, and then tries to match the silhouette to a database to see if it knows who you are. It's a biometric identifier, like fingerprints or retina-scans, but it's got a lot more "collisions" than either of those. A biometric "collision" is when a measurement matches more than one person. Only you have your fingerprint, but you share your gait with plenty other people. + +Not exactly, of course. Your personal, inch-by-inch walk is yours and yours alone. The problem is your inch-by-inch walk changes based on how tired you are, what the floor is made of, whether you pulled your ankle playing basketball, and whether you've changed your shoes lately. So the system kind of fuzzes-out your profile, looking for people who walk kind of like you. + +There are a lot of people who walk kind of like you. What's more, it's easy not to walk kind of like you -- just take one shoe off. Of course, you'll always walk like you-with-one-shoe-off in that case, so the cameras will eventually figure out that it's still you. Which is why I prefer to inject a little randomness into my attacks on gait-recognition: I put a handful of gravel into each shoe. Cheap and effective, and no two steps are the same. Plus you get a great reflexology foot massage in the process (I kid. Reflexology is about as scientifically useful as gait-recognition). + +The cameras used to set off an alert every time someone they didn't recognize stepped onto campus. + +This did /{not}/ work. + +The alarm went off every ten minutes. When the mailman came by. When a parent dropped in. When the grounds-people went to work fixing up the basketball court. When a student showed up wearing new shoes. + +So now it just tries to keep track of who's where and when. If someone leaves by the school-gates during classes, their gait is checked to see if it kinda-sorta matches any student gait and if it does, whoop-whoop-whoop, ring the alarm! + +Chavez High is ringed with gravel walkways. I like to keep a couple handsful of rocks in my shoulder-bag, just in case. I silently passed Darryl ten or fifteen pointy little bastards and we both loaded our shoes. + +Class was about to finish up -- and I realized that I still hadn't checked the Harajuku Fun Madness site to see where the next clue was! I'd been a little hyper-focused on the escape, and hadn't bothered to figure out where we were escaping /{to}/. + +I turned to my SchoolBook and hit the keyboard. The web-browser we used was supplied with the machine. It was a locked-down spyware version of Internet Explorer, Microsoft's crashware turd that no one under the age of 40 used voluntarily. + +I had a copy of Firefox on the USB drive built into my watch, but that wasn't enough -- the SchoolBook ran Windows Vista4Schools, an antique operating system designed to give school administrators the illusion that they controlled the programs their students could run. + +But Vista4Schools is its own worst enemy. There are a lot of programs that Vista4Schools doesn't want you to be able to shut down -- keyloggers, censorware -- and these programs run in a special mode that makes them invisible to the system. You can't quit them because you can't even see they're there. + +Any program whose name starts with $SYS$ is invisible to the operating system. it doesn't show up on listings of the hard drive, nor in the process monitor. So my copy of Firefox was called $SYS$Firefox -- and as I launched it, it became invisible to Windows, and so invisible to the network's snoopware. + +Now I had an indie browser running, I needed an indie network connection. The school's network logged every click in and out of the system, which was bad news if you were planning on surfing over to the Harajuku Fun Madness site for some extra-curricular fun. + +The answer is something ingenious called TOR -- The Onion Router. An onion router is an Internet site that takes requests for web-pages and passes them onto other onion routers, and on to other onion routers, until one of them finally decides to fetch the page and pass it back through the layers of the onion until it reaches you. The traffic to the onion-routers is encrypted, which means that the school can't see what you're asking for, and the layers of the onion don't know who they're working for. There are millions of nodes -- the program was set up by the US Office of Naval Research to help their people get around the censorware in countries like Syria and China, which means that it's perfectly designed for operating in the confines of an average American high school. + +TOR works because the school has a finite blacklist of naughty addresses we aren't allowed to visit, and the addresses of the nodes change all the time -- no way could the school keep track of them all. Firefox and TOR together made me into the invisible man, impervious to Board of Ed snooping, free to check out the Harajuku FM site and see what was up. + +There it was, a new clue. Like all Harajuku Fun Madness clues, it had a physical, online and mental component. The online component was a puzzle you had to solve, one that required you to research the answers to a bunch of obscure questions. This batch included a bunch of questions on the plots in dojinshi -- those are comic books drawn by fans of manga, Japanese comics. They can be as big as the official comics that inspire them, but they're a lot weirder, with crossover story-lines and sometimes really silly songs and action. Lots of love stories, of course. Everyone loves to see their favorite toons hook up. + +I'd have to solve those riddles later, when I got home. They were easiest to solve with the whole team, downloading tons of dojinshi files and scouring them for answers to the puzzles. + +I'd just finished scrap-booking all the clues when the bell rang and we began our escape. I surreptitiously slid the gravel down the side of my short boots -- ankle-high Blundstones from Australia, great for running and climbing, and the easy slip-on/slip-off laceless design makes them convenient at the never-ending metal-detectors that are everywhere now. + +We also had to evade physical surveillance, of course, but that gets easier every time they add a new layer of physical snoopery -- all the bells and whistles lull our beloved faculty into a totally false sense of security. We surfed the crowd down the hallways, heading for my favorite side-exit. We were halfway along when Darryl hissed, "Crap! I forgot, I've got a library book in my bag." + +"You're kidding me," I said, and hauled him into the next bathroom we passed. Library books are bad news. Every one of them has an arphid -- Radio Frequency ID tag -- glued into its binding, which makes it possible for the librarians to check out the books by waving them over a reader, and lets a library shelf tell you if any of the books on it are out of place. + +But it also lets the school track where you are at all times. It was another of those legal loopholes: the courts wouldn't let the schools track /{us}/ with arphids, but they could track /{library books}/, and use the school records to tell them who was likely to be carrying which library book. + +I had a little Faraday pouch in my bag -- these are little wallets lined with a mesh of copper wires that effectively block radio energy, silencing arphids. But the pouches were made for neutralizing ID cards and toll-booth transponders, not books like -- + +"Introduction to Physics?" I groaned. The book was the size of a dictionary. + +1~ Chapter 2 + +_1 /{ [This chapter is dedicated to Amazon.com,~{ Amazon: http://www.amazon.com/exec/obidos/ASIN/0765319853/downandoutint-20 }~ the largest Internet bookseller in the world. Amazon is _{amazing}_ -- a "store" where you can get practically any book ever published (along with practically everything else, from laptops to cheese-graters), where they've elevated recommendations to a high art, where they allow customers to directly communicate with each other, where they are constantly inventing new and better ways of connecting books with readers. Amazon has always treated me like gold -- the founder, Jeff Bezos, even posted a reader-review for my first novel! -- and I shop there like crazy (looking at my spreadsheets, it appears that I buy something from Amazon approximately every _{six days}_). Amazon's in the process of reinventing what it means to be a bookstore in the twenty-first century and I can't think of a better group of people to be facing down that thorny set of problems.] }/ + +"I'm thinking of majoring in physics when I go to Berkeley," Darryl said. His dad taught at the University of California at Berkeley, which meant he'd get free tuition when he went. And there'd never been any question in Darryl's household about whether he'd go. + +"Fine, but couldn't you research it online?" + +"My dad said I should read it. Besides, I didn't plan on committing any crimes today." + +"Skipping school isn't a crime. It's an infraction. They're totally different." + +"What are we going to do, Marcus?" + +"Well, I can't hide it, so I'm going to have to nuke it." Killing arphids is a dark art. No merchant wants malicious customers going for a walk around the shop-floor and leaving behind a bunch of lobotomized merchandise that is missing its invisible bar-code, so the manufacturers have refused to implement a "kill signal" that you can radio to an arphid to get it to switch off. You can reprogram arphids with the right box, but I hate doing that to library books. It's not exactly tearing pages out of a book, but it's still bad, since a book with a reprogrammed arphid can't be shelved and can't be found. It just becomes a needle in a haystack. + +That left me with only one option: nuking the thing. Literally. 30 seconds in a microwave will do in pretty much every arphid on the market. And because the arphid wouldn't answer at all when D checked it back in at the library, they'd just print a fresh one for it and recode it with the book's catalog info, and it would end up clean and neat back on its shelf. + +All we needed was a microwave. + +"Give it another two minutes and the teacher's lounge will be empty," I said. + +Darryl grabbed his book at headed for the door. "Forget it, no way. I'm going to class." + +I snagged his elbow and dragged him back. "Come on, D, easy now. It'll be fine." + +"The /{teacher's lounge}/? Maybe you weren't listening, Marcus. If I get busted /{just once more}/, I am /{expelled.}/ You hear that? /{Expelled.}/" + +"You won't get caught," I said. The one place a teacher wouldn't be after this period was the lounge. "We'll go in the back way." The lounge had a little kitchenette off to one side, with its own entrance for teachers who just wanted to pop in and get a cup of joe. The microwave -- which always reeked of popcorn and spilled soup -- was right in there, on top of the miniature fridge. + +Darryl groaned. I thought fast. "Look, the bell's /{already rung}/. if you go to study hall now, you'll get a late-slip. Better not to show at all at this point. I can infiltrate and exfiltrate any room on this campus, D. You've seen me do it. I'll keep you safe, bro." + +He groaned again. That was one of Darryl's tells: once he starts groaning, he's ready to give in. + +"Let's roll," I said, and we took off. + +It was flawless. We skirted the classrooms, took the back stairs into the basement, and came up the front stairs right in front of the teachers' lounge. Not a sound came from the door, and I quietly turned the knob and dragged Darryl in before silently closing the door. + +The book just barely fit in the microwave, which was looking even less sanitary than it had the last time I'd popped in here to use it. I conscientiously wrapped it in paper towels before I set it down. "Man, teachers are /{pigs}/," I hissed. Darryl, white faced and tense, said nothing. + +The arphid died in a shower of sparks, which was really quite lovely (though not nearly as pretty as the effect you get when you nuke a frozen grape, which has to be seen to be believed). + +Now, to exfiltrate the campus in perfect anonymity and make our escape. + +Darryl opened the door and began to move out, me on his heels. A second later, he was standing on my toes, elbows jammed into my chest, as he tried to back-pedal into the closet-sized kitchen we'd just left. + +"Get back," he whispered urgently. "Quick -- it's Charles!" + +Charles Walker and I don't get along. We're in the same grade, and we've known each other as long as I've known Darryl, but that's where the resemblance ends. Charles has always been big for his age, and now that he's playing football and on the juice, he's even bigger. He's got anger management problems -- I lost a milk-tooth to him in the third grade, and he's managed to keep from getting in trouble over them by becoming the most active snitch in school. + +It's a bad combination, a bully who also snitches, taking great pleasure in going to the teachers with whatever infractions he's found. Benson /{loved}/ Charles. Charles liked to let on that he had some kind of unspecified bladder problem, which gave him a ready-made excuse to prowl the hallways at Chavez, looking for people to fink on. + +The last time Charles had caught some dirt on me, it had ended with me giving up LARPing. I had no intention of being caught by him again. + +"What's he doing?" + +"He's coming this way is what he's doing," Darryl said. He was shaking. + +"OK," I said. "OK, time for emergency countermeasures." I got my phone out. I'd planned this well in advance. Charles would never get me again. I emailed my server at home, and it got into motion. + +A few seconds later, Charles's phone spazzed out spectacularly. I'd had tens of thousands of simultaneous random calls and text messages sent to it, causing every chirp and ring it had to go off and keep on going off. The attack was accomplished by means of a botnet, and for that I felt bad, but it was in the service of a good cause. + +Botnets are where infected computers spend their afterlives. When you get a worm or a virus, your computer sends a message to a chat channel on IRC -- the Internet Relay Chat. That message tells the botmaster -- the guy who deployed the worm -- that the computers are there ready to do his bidding. Botnets are supremely powerful, since they can comprise thousands, even hundreds of thousands of computers, scattered all over the Internet, connected to juicy high-speed connections and running on fast home PCs. Those PCs normally function on behalf of their owners, but when the botmaster calls them, they rise like zombies to do his bidding. + +There are so many infected PCs on the Internet that the price of hiring an hour or two on a botnet has crashed. Mostly these things work for spammers as cheap, distributed spambots, filling your mailbox with come-ons for boner-pills or with new viruses that can infect you and recruit your machine to join the botnet. + +I'd just rented 10 seconds' time on three thousand PCs and had each of them send a text message or voice-over-IP call to Charles's phone, whose number I'd extracted from a sticky note on Benson's desk during one fateful office-visit. + +Needless to say, Charles's phone was not equipped to handle this. First the SMSes filled the memory on his phone, causing it to start choking on the routine operations it needed to do things like manage the ringer and log all those incoming calls' bogus return numbers (did you know that it's /{really easy}/ to fake the return number on a caller ID? There are about fifty ways of doing it -- just google "spoof caller id"). + +Charles stared at it dumbfounded, and jabbed at it furiously, his thick eyebrows knotting and wiggling as he struggled with the demons that had possessed his most personal of devices. The plan was working so far, but he wasn't doing what he was supposed to be doing next -- he was supposed to go find some place to sit down and try to figure out how to get his phone back. +Darryl shook me by the shoulder, and I pulled my eye away from the crack in the door. + +"What's he doing?" Darryl whispered. + +"I totaled his phone, but he's just staring at it now instead of moving on." It wasn't going to be easy to reboot that thing. Once the memory was totally filled, it would have a hard time loading the code it needed to delete the bogus messages -- and there was no bulk-erase for texts on his phone, so he'd have to manually delete all of the thousands of messages. + +Darryl shoved me back and stuck his eye up to the door. A moment later, his shoulders started to shake. I got scared, thinking he was panicking, but when he pulled back, I saw that he was laughing so hard that tears were streaming down his cheeks. + +"Galvez just totally busted him for being in the halls during class /{and}/ for having his phone out -- you should have seen her tear into him. She was really enjoying it." + +We shook hands solemnly and snuck back out of the corridor, down the stairs, around the back, out the door, past the fence and out into the glorious sunlight of afternoon in the Mission. Valencia Street had never looked so good. I checked my watch and yelped. + +"Let's move! The rest of the gang is meeting us at the cable-cars in twenty minutes!" + +# + +Van spotted us first. She was blending in with a group of Korean tourists, which is one of her favorite ways of camouflaging herself when she's ditching school. Ever since the truancy moblog went live, our world is full of nosy shopkeepers and pecksniffs who take it upon themselves to snap our piccies and put them on the net where they can be perused by school administrators. + +She came out of the crowd and bounded toward us. Darryl has had a thing for Van since forever, and she's sweet enough to pretend she doesn't know it. She gave me a hug and then moved onto Darryl, giving him a quick sisterly kiss on the cheek that made him go red to the tops of his ears. + +The two of them made a funny pair: Darryl is a little on the heavy side, though he wears it well, and he's got a kind of pink complexion that goes red in the cheeks whenever he runs or gets excited. He's been able to grow a beard since we were 14, but thankfully he started shaving after a brief period known to our gang as "the Lincoln years." And he's tall. Very, very tall. Like basketball player tall. + +Meanwhile, Van is half a head shorter than me, and skinny, with straight black hair that she wears in crazy, elaborate braids that she researches on the net. She's got pretty coppery skin and dark eyes, and she loves big glass rings the size of radishes, which click and clack together when she dances. + +"Where's Jolu?" she said. + +"How are you, Van?" Darryl asked in a choked voice. He always ran a step behind the conversation when it came to Van. + +"I'm great, D. How's your every little thing?" Oh, she was a bad, bad person. Darryl nearly fainted. + +Jolu saved him from social disgrace by showing up just then, in an oversize leather baseball jacket, sharp sneakers, and a meshback cap advertising our favorite Mexican masked wrestler, El Santo Junior. Jolu is Jose Luis Torrez, the completing member of our foursome. He went to a super-strict Catholic school in the Outer Richmond, so it wasn't easy for him to get out. But he always did: no one exfiltrated like our Jolu. He liked his jacket because it hung down low -- which was pretty stylish in parts of the city -- and covered up all his Catholic school crap, which was like a bulls-eye for nosy jerks with the truancy moblog bookmarked on their phones. + +"Who's ready to go?" I asked, once we'd all said hello. I pulled out my phone and showed them the map I'd downloaded to it on the BART. "Near as I can work out, we wanna go up to the Nikko again, then one block past it to O'Farrell, then left up toward Van Ness. Somewhere in there we should find the wireless signal." + +Van made a face. "That's a nasty part of the Tenderloin." I couldn't argue with her. That part of San Francisco is one of the weird bits -- you go in through the Hilton's front entrance and it's all touristy stuff like the cable-car turnaround and family restaurants. Go through to the other side and you're in the 'Loin, where every tracked out transvestite hooker, hard-case pimp, hissing drug dealer and cracked up homeless person in town was concentrated. What they bought and sold, none of us were old enough to be a part of (though there were plenty of hookers our age plying their trade in the 'Loin.) + +"Look on the bright side," I said. "The only time you want to go up around there is broad daylight. None of the other players are going to go near it until tomorrow at the earliest. This is what we in the ARG business call a /{monster head start.}/" + +Jolu grinned at me. "You make it sound like a good thing," he said. + +"Beats eating uni," I said. + +"We going to talk or we going to win?" Van said. After me, she was hands-down the most hardcore player in our group. She took winning very, very seriously. + +We struck out, four good friends, on our way to decode a clue, win the game -- and lose everything we cared about, forever. + +# + +The physical component of today's clue was a set of GPS coordinates -- there were coordinates for all the major cities where Harajuku Fun Madness was played -- where we'd find a WiFi access-point's signal. That signal was being deliberately jammed by another, nearby WiFi point that was hidden so that it couldn't be spotted by conventional wifinders, little key-fobs that told you when you were within range of someone's open access-point, which you could use for free. + +We'd have to track down the location of the "hidden" access point by measuring the strength of the "visible" one, finding the spot where it was most mysteriously weakest. There we'd find another clue -- last time it had been in the special of the day at Anzu, the swanky sushi restaurant in the Nikko hotel in the Tenderloin. The Nikko was owned by Japan Airlines, one of Harajuku Fun Madness's sponsors, and the staff had all made a big fuss over us when we finally tracked down the clue. They'd given us bowls of miso soup and made us try uni, which is sushi made from sea urchin, with the texture of very runny cheese and a smell like very runny dog-droppings. But it tasted /{really}/ good. Or so Darryl told me. I wasn't going to eat that stuff. + +I picked up the WiFi signal with my phone's wifinder about three blocks up O'Farrell, just before Hyde Street, in front of a dodgy "Asian Massage Parlor" with a red blinking CLOSED sign in the window. The network's name was HarajukuFM, so we knew we had the right spot. + +"If it's in there, I'm not going," Darryl said. + +"You all got your wifinders?" I said. + +Darryl and Van had phones with built-in wifinders, while Jolu, being too cool to carry a phone bigger than his pinky finger, had a separate little directional fob. + +"OK, fan out and see what we see. You're looking for a sharp drop off in the signal that gets worse the more you move along it." + +I took a step backward and ended up standing on someone's toes. A female voice said "oof" and I spun around, worried that some crack-ho was going to stab me for breaking her heels. + +Instead, I found myself face to face with another kid my age. She had a shock of bright pink hair and a sharp, rodent-like face, with big sunglasses that were practically air-force goggles. She was dressed in striped tights beneath a black granny dress, with lots of little Japanese decorer toys safety pinned to it -- anime characters, old world leaders, emblems from foreign soda-pop. + +She held up a camera and snapped a picture of me and my crew. + +"Cheese," she said. "You're on candid snitch-cam." + +"No way," I said. "You wouldn't --" + +"I will," she said. "I will send this photo to truant watch in thirty seconds unless you four back off from this clue and let me and my friends here run it down. You can come back in one hour and it'll be all yours. I think that's more than fair." + +I looked behind her and noticed three other girls in similar garb -- one with blue hair, one with green, and one with purple. "Who are you supposed to be, the Popsicle Squad?" + +"We're the team that's going to kick your team's ass at Harajuku Fun Madness," she said. "And I'm the one who's /{right this second}/ about to upload your photo and get you in /{so much trouble}/ --" + +Behind me I felt Van start forward. Her all-girls school was notorious for its brawls, and I was pretty sure she was ready to knock this chick's block off. + +Then the world changed forever. + +We felt it first, that sickening lurch of the cement under your feet that every Californian knows instinctively -- /{earthquake}/. My first inclination, as always, was to get away: "when in trouble or in doubt, run in circles, scream and shout." But the fact was, we were already in the safest place we could be, not in a building that could fall in on us, not out toward the middle of the road where bits of falling cornice could brain us. + +Earthquakes are eerily quiet -- at first, anyway -- but this wasn't quiet. This was loud, an incredible roaring sound that was louder than anything I'd ever heard before. The sound was so punishing it drove me to my knees, and I wasn't the only one. Darryl shook my arm and pointed over the buildings and we saw it then: a huge black cloud rising from the northeast, from the direction of the Bay. + +There was another rumble, and the cloud of smoke spread out, that spreading black shape we'd all grown up seeing in movies. Someone had just blown up something, in a big way. + +There were more rumbles and more tremors. Heads appeared at windows up and down the street. We all looked at the mushroom cloud in silence. + +Then the sirens started. + +I'd heard sirens like these before -- they test the civil defense sirens at noon on Tuesdays. But I'd only heard them go off unscheduled in old war movies and video games, the kind where someone is bombing someone else from above. Air raid sirens. The wooooooo sound made it all less real. + +"Report to shelters immediately." It was like the voice of God, coming from all places at once. There were speakers on some of the electric poles, something I'd never noticed before, and they'd all switched on at once. + +"Report to shelters immediately." Shelters? We looked at each other in confusion. What shelters? The cloud was rising steadily, spreading out. Was it nuclear? Were we breathing in our last breaths? + +The girl with the pink hair grabbed her friends and they tore ass downhill, back toward the BART station and the foot of the hills. + +"REPORT TO SHELTERS IMMEDIATELY." There was screaming now, and a lot of running around. Tourists -- you can always spot the tourists, they're the ones who think CALIFORNIA = WARM and spend their San Francisco holidays freezing in shorts and t-shirts -- scattered in every direction. + +"We should go!" Darryl hollered in my ear, just barely audible over the shrieking of the sirens, which had been joined by traditional police sirens. A dozen SFPD cruisers screamed past us. + +"REPORT TO SHELTERS IMMEDIATELY." + +"Down to the BART station," I hollered. My friends nodded. We closed ranks and began to move quickly downhill. + +1~ Chapter 3 + +_1 /{ [This chapter is dedicated to Borderlands Books,~{ Borderland Books: http://www.borderlands-books.com/ 866 Valencia Ave, San Francisco CA USA 94110 +1 888 893 4008 }~ San Francisco's magnificent independent science fiction bookstore. Borderlands is basically located across the street from the fictional Cesar Chavez High depicted in Little Brother, and it's not just notorious for its brilliant events, signings, book clubs and such, but also for its amazing hairless Egyptian cat, Ripley, who likes to perch like a buzzing gargoyle on the computer at the front of the store. Borderlands is about the friendliest bookstore you could ask for, filled with comfy places to sit and read, and staffed by incredibly knowledgeable clerks who know everything there is to know about science fiction. Even better, they've always been willing to take orders for my book (by net or phone) and hold them for me to sign when I drop into the store, then they ship them within the US for free!] }/ + +We passed a lot of people in the road on the way to the Powell Street BART. They were running or walking, white-faced and silent or shouting and panicked. Homeless people cowered in doorways and watched it all, while a tall black tranny hooker shouted at two mustached young men about something. + +The closer we got to the BART, the worse the press of bodies became. By the time we reached the stairway down into the station, it was a mob-scene, a huge brawl of people trying to crowd their way down a narrow staircase. I had my face crushed up against someone's back, and someone else was pressed into my back. + +Darryl was still beside me -- he was big enough that he was hard to shove, and Jolu was right behind him, kind of hanging on to his waist. I spied Vanessa a few yards away, trapped by more people. + +"Screw you!" I heard Van yell behind me. "Pervert! Get your hands off of me!" + +I strained around against the crowd and saw Van looking with disgust at an older guy in a nice suit who was kind of smirking at her. She was digging in her purse and I knew what she was digging for. + +"Don't mace him!" I shouted over the din. "You'll get us all too." + +At the mention of the word mace, the guy looked scared and kind of melted back, though the crowd kept him moving forward. Up ahead, I saw someone, a middle-aged lady in a hippie dress, falter and fall. She screamed as she went down, and I saw her thrashing to get up, but she couldn't, the crowd's pressure was too strong. As I neared her, I bent to help her up, and was nearly knocked over her. I ended up stepping on her stomach as the crowd pushed me past her, but by then I don't think she was feeling anything. + +I was as scared as I'd ever been. There was screaming everywhere now, and more bodies on the floor, and the press from behind was as relentless as a bulldozer. It was all I could do to keep on my feet. + +We were in the open concourse where the turnstiles were. It was hardly any better here -- the enclosed space sent the voices around us echoing back in a roar that made my head ring, and the smell and feeling of all those bodies made me feel a claustrophobia I'd never known I was prone to. + +People were still cramming down the stairs, and more were squeezing past the turnstiles and down the escalators onto the platforms, but it was clear to me that this wasn't going to have a happy ending. + +"Want to take our chances up top?" I said to Darryl. + +"Yes, hell yes," he said. "This is vicious." + +I looked to Vanessa -- there was no way she'd hear me. I managed to get my phone out and I texted her. + +> We're getting out of here + +I saw her feel the vibe from her phone, then look down at it and then back at me and nod vigorously. Darryl, meanwhile, had clued Jolu in. + +"/{What's the plan?}/ Darryl shouted in my ear. + +"We're going to have to go back!" I shouted back, pointing at the remorseless crush of bodies. + +"It's impossible!" he said. + +"It's just going to get more impossible the longer we wait!" + +He shrugged. Van worked her way over to me and grabbed hold of my wrist. I took Darryl and Darryl took Jolu by the other hand and we pushed out. + +It wasn't easy. We moved about three inches a minute at first, then slowed down even more when we reached the stairway. The people we passed were none too happy about us shoving them out of the way, either. A couple people swore at us and there was a guy who looked like he'd have punched me if he'd been able to get his arms loose. We passed three more crushed people beneath us, but there was no way I could have helped them. By that point, I wasn't even thinking of helping anyone. All I could think of was finding the spaces in front of us to move into, of Darryl's mighty straining on my wrist, of my death-grip on Van behind me. + +We popped free like Champagne corks an eternity later, blinking in the grey smoky light. The air raid sirens were still blaring, and the sound of emergency vehicles' sirens as they tore down Market Street was even louder. There was almost no one on the streets anymore -- just the people trying hopelessly to get underground. A lot of them were crying. I spotted a bunch of empty benches -- usually staked out by skanky winos -- and pointed toward them. + +We moved for them, the sirens and the smoke making us duck and hunch our shoulders. We got as far as the benches before Darryl fell forward. + +We all yelled and Vanessa grabbed him and turned him over. The side of his shirt was stained red, and the stain was spreading. She tugged his shirt up and revealed a long, deep cut in his pudgy side. + +"Someone freaking /{stabbed}/ him in the crowd," Jolu said, his hands clenching into fists. "Christ, that's vicious." + +Darryl groaned and looked at us, then down at his side, then he groaned and his head went back again. + +Vanessa took off her jean jacket and then pulled off the cotton hoodie she was wearing underneath it. She wadded it up and pressed it to Darryl's side. "Take his head," she said to me. "Keep it elevated." To Jolu she said, "Get his feet up -- roll up your coat or something." Jolu moved quickly. Vanessa's mother is a nurse and she'd had first aid training every summer at camp. She loved to watch people in movies get their first aid wrong and make fun of them. I was so glad to have her with us. + +We sat there for a long time, holding the hoodie to Darryl's side. He kept insisting that he was fine and that we should let him up, and Van kept telling him to shut up and lie still before she kicked his ass. + +"What about calling 911?" Jolu said. + +I felt like an idiot. I whipped my phone out and punched 911. The sound I got wasn't even a busy signal -- it was like a whimper of pain from the phone system. You don't get sounds like that unless there's three million people all dialing the same number at once. Who needs botnets when you've got terrorists? + +"What about Wikipedia?" Jolu said. + +"No phone, no data," I said. + +"What about them?" Darryl said, and pointed at the street. I looked where he was pointing, thinking I'd see a cop or an paramedic, but there was no one there. + +"It's OK buddy, you just rest," I said. + +"No, you idiot, what about /{them}/, the cops in the cars? There!" + +He was right. Every five seconds, a cop car, an ambulance or a firetruck zoomed past. They could get us some help. I was such an idiot. + +"Come on, then," I said, "let's get you where they can see you and flag one down." + +Vanessa didn't like it, but I figured a cop wasn't going to stop for a kid waving his hat in the street, not that day. They just might stop if they saw Darryl bleeding there, though. I argued briefly with her and Darryl settled it by lurching to his feet and dragging himself down toward Market Street. + +The first vehicle that screamed past -- an ambulance -- didn't even slow down. Neither did the cop car that went past, nor the firetruck, nor the next three cop-cars. Darryl wasn't in good shape -- he was white-faced and panting. Van's sweater was soaked in blood. + +I was sick of cars driving right past me. The next time a car appeared down Market Street, I stepped right out into the road, waving my arms over my head, shouting "/{STOP}/." The car slewed to a stop and only then did I notice that it wasn't a cop car, ambulance or fire-engine. + +It was a military-looking Jeep, like an armored Hummer, only it didn't have any military insignia on it. The car skidded to a stop just in front of me, and I jumped back and lost my balance and ended up on the road. I felt the doors open near me, and then saw a confusion of booted feet moving close by. I looked up and saw a bunch of military-looking guys in coveralls, holding big, bulky rifles and wearing hooded gas masks with tinted face-plates. + +I barely had time to register them before those rifles were pointed at me. I'd never looked down the barrel of a gun before, but everything you've heard about the experience is true. You freeze where you are, time stops, and your heart thunders in your ears. I opened my mouth, then shut it, then, very slowly, I held my hands up in front of me. + +The faceless, eyeless armed man above me kept his gun very level. I didn't even breathe. Van was screaming something and Jolu was shouting and I looked at them for a second and that was when someone put a coarse sack over my head and cinched it tight around my windpipe, so quick and so fiercely I barely had time to gasp before it was locked on me. I was pushed roughly but dispassionately onto my stomach and something went twice around my wrists and then tightened up as well, feeling like baling wire and biting cruelly. I cried out and my own voice was muffled by the hood. + +I was in total darkness now and I strained my ears to hear what was going on with my friends. I heard them shouting through the muffling canvas of the bag, and then I was being impersonally hauled to my feet by my wrists, my arms wrenched up behind my back, my shoulders screaming. + +I stumbled some, then a hand pushed my head down and I was inside the Hummer. More bodies were roughly shoved in beside me. + +"Guys?" I shouted, and earned a hard thump on my head for my trouble. I heard Jolu respond, then felt the thump he was dealt, too. My head rang like a gong. + +"Hey," I said to the soldiers. "Hey, listen! We're just high school students. I wanted to flag you down because my friend was bleeding. Someone stabbed him." I had no idea how much of this was making it through the muffling bag. I kept talking. "Listen -- this is some kind of misunderstanding. We've got to get my friend to a hospital --" + +Someone went upside my head again. It felt like they used a baton or something -- it was harder than anyone had ever hit me in the head before. My eyes swam and watered and I literally couldn't breathe through the pain. A moment later, I caught my breath, but I didn't say anything. I'd learned my lesson. + +Who were these clowns? They weren't wearing insignia. Maybe they were terrorists! I'd never really believed in terrorists before -- I mean, I knew that in the abstract there were terrorists somewhere in the world, but they didn't really represent any risk to me. There were millions of ways that the world could kill me -- starting with getting run down by a drunk burning his way down Valencia -- that were infinitely more likely and immediate than terrorists. Terrorists killed a lot fewer people than bathroom falls and accidental electrocutions. Worrying about them always struck me as about as useful as worrying about getting hit by lightning. + +Sitting in the back of that Hummer, my head in a hood, my hands lashed behind my back, lurching back and forth while the bruises swelled up on my head, terrorism suddenly felt a lot riskier. + +The car rocked back and forth and tipped uphill. I gathered we were headed over Nob Hill, and from the angle, it seemed we were taking one of the steeper routes -- I guessed Powell Street. + +Now we were descending just as steeply. If my mental map was right, we were heading down to Fisherman's Wharf. You could get on a boat there, get away. That fit with the terrorism hypothesis. Why the hell would terrorists kidnap a bunch of high school students? + +We rocked to a stop still on a downslope. The engine died and then the doors swung open. Someone dragged me by my arms out onto the road, then shoved me, stumbling, down a paved road. A few seconds later, I tripped over a steel staircase, bashing my shins. The hands behind me gave me another shove. I went up the stairs cautiously, not able to use my hands. I got up the third step and reached for the fourth, but it wasn't there. I nearly fell again, but new hands grabbed me from in front and dragged me down a steel floor and then forced me to my knees and locked my hands to something behind me. + +More movement, and the sense of bodies being shackled in alongside of me. Groans and muffled sounds. Laughter. Then a long, timeless eternity in the muffled gloom, breathing my own breath, hearing my own breath in my ears. + +# + +I actually managed a kind of sleep there, kneeling with the circulation cut off to my legs, my head in canvas twilight. My body had squirted a year's supply of adrenalin into my bloodstream in the space of 30 minutes, and while that stuff can give you the strength to lift cars off your loved ones and leap over tall buildings, the payback's always a bitch. + +I woke up to someone pulling the hood off my head. They were neither rough nor careful -- just...impersonal. Like someone at McDonald's putting together burgers. + +The light in the room was so bright I had to squeeze my eyes shut, but slowly I was able to open them to slits, then cracks, then all the way and look around. + +We were all in the back of a truck, a big 16-wheeler. I could see the wheel-wells at regular intervals down the length. But the back of this truck had been turned into some kind of mobile command-post/jail. Steel desks lined the walls with banks of slick flat-panel displays climbing above them on articulated arms that let them be repositioned in a halo around the operators. Each desk had a gorgeous office-chair in front of it, festooned with user-interface knobs for adjusting every millimeter of the sitting surface, as well as height, pitch and yaw. + +Then there was the jail part -- at the front of the truck, furthest away from the doors, there were steel rails bolted into the sides of the vehicle, and attached to these steel rails were the prisoners. + +I spotted Van and Jolu right away. Darryl might have been in the remaining dozen shackled up back here, but it was impossible to say -- many of them were slumped over and blocking my view. It stank of sweat and fear back there. + +Vanessa looked at me and bit her lip. She was scared. So was I. So was Jolu, his eyes rolling crazily in their sockets, the whites showing. I was scared. What's more, I had to piss like a /{race-horse.}/ + +I looked around for our captors. I'd avoided looking at them up until now, the same way you don't look into the dark of a closet where your mind has conjured up a boogey-man. You don't want to know if you're right. + +But I had to get a better look at these jerks who'd kidnapped us. If they were terrorists, I wanted to know. I didn't know what a terrorist looked like, though TV shows had done their best to convince me that they were brown Arabs with big beards and knit caps and loose cotton dresses that hung down to their ankles. + +Not so our captors. They could have been half-time-show cheerleaders on the Super Bowl. They looked /{American}/ in a way I couldn't exactly define. Good jaw-lines, short, neat haircuts that weren't quite military. They came in white and brown, male and female, and smiled freely at one another as they sat down at the other end of the truck, joking and drinking coffees out of go-cups. These weren't Ay-rabs from Afghanistan: they looked like tourists from Nebraska. + +I stared at one, a young white woman with brown hair who barely looked older than me, kind of cute in a scary office-power-suit way. If you stare at someone long enough, they'll eventually look back at you. She did, and her face slammed into a totally different configuration, dispassionate, even robotic. The smile vanished in an instant. + +"Hey," I said. "Look, I don't understand what's going on here, but I really need to take a leak, you know?" + +She looked right through me as if she hadn't heard. + +"I'm serious, if I don't get to a can soon, I'm going to have an ugly accident. It's going to get pretty smelly back here, you know?" + +She turned to her colleagues, a little huddle of three of them, and they held a low conversation I couldn't hear over the fans from the computers. + +She turned back to me. "Hold it for another ten minutes, then you'll each get a piss-call." + +"I don't think I've got another ten minutes in me," I said, letting a little more urgency than I was really feeling creep into my voice. "Seriously, lady, it's now or never." + +She shook her head and looked at me like I was some kind of pathetic loser. She and her friends conferred some more, then another one came forward. He was older, in his early thirties, and pretty big across the shoulders, like he worked out. He looked like he was Chinese or Korean -- even Van can't tell the difference sometimes -- but with that bearing that said /{American}/ in a way I couldn't put my finger on. + +He pulled his sports-coat aside to let me see the hardware strapped there: I recognized a pistol, a tazer and a can of either mace or pepper-spray before he let it fall again. + +"No trouble," he said. + +"None," I agreed. + +He touched something at his belt and the shackles behind me let go, my arms dropping suddenly behind me. It was like he was wearing Batman's utility belt -- wireless remotes for shackles! I guessed it made sense, though: you wouldn't want to lean over your prisoners with all that deadly hardware at their eye-level -- they might grab your gun with their teeth and pull the trigger with their tongues or something. + +My hands were still lashed together behind me by the plastic strapping, and now that I wasn't supported by the shackles, I found that my legs had turned into lumps of cork while I was stuck in one position. Long story short, I basically fell onto my face and kicked my legs weakly as they went pins-and-needles, trying to get them under me so I could rock up to my feet. + +The guy jerked me to my feet and I clown-walked to the very back of the truck, to a little boxed-in porta-john there. I tried to spot Darryl on the way back, but he could have been any of the five or six slumped people. Or none of them. + +"In you go," the guy said. + +I jerked my wrists. "Take these off, please?" My fingers felt like purple sausages from the hours of bondage in the plastic cuffs. + +The guy didn't move. + +"Look," I said, trying not to sound sarcastic or angry (it wasn't easy). "Look. You either cut my wrists free or you're going to have to aim for me. A toilet visit is not a hands-free experience." Someone in the truck sniggered. The guy didn't like me, I could tell from the way his jaw muscles ground around. Man, these people were wired tight. + +He reached down to his belt and came up with a very nice set of multi-pliers. He flicked out a wicked-looking knife and sliced through the plastic cuffs and my hands were my own again. + +"Thanks," I said. + +He shoved me into the bathroom. My hands were useless, like lumps of clay on the ends of my wrists. As I wiggled my fingers limply, they tingled, then the tingling turned to a burning feeling that almost made me cry out. I put the seat down, dropped my pants and sat down. I didn't trust myself to stay on my feet. + +As my bladder cut loose, so did my eyes. I wept, crying silently and rocking back and forth while the tears and snot ran down my face. It was all I could do to keep from sobbing -- I covered my mouth and held the sounds in. I didn't want to give them the satisfaction. + +Finally, I was peed out and cried out and the guy was pounding on the door. I cleaned my face as best as I could with wads of toilet paper, stuck it all down the john and flushed, then looked around for a sink but only found a pump-bottle of heavy-duty hand-sanitizer covered in small-print lists of the bio-agents it worked on. I rubbed some into my hands and stepped out of the john. + +"What were you doing in there?" the guy said. + +"Using the facilities," I said. He turned me around and grabbed my hands and I felt a new pair of plastic cuffs go around them. My wrists had swollen since the last pair had come off and the new ones bit cruelly into my tender skin, but I refused to give him the satisfaction of crying out. + +He shackled me back to my spot and grabbed the next person down, who, I saw now, was Jolu, his face puffy and an ugly bruise on his cheek. + +"Are you OK?" I asked him, and my friend with the utility belt abruptly put his hand on my forehead and shoved hard, bouncing the back of my head off the truck's metal wall with a sound like a clock striking one. "No talking," he said as I struggled to refocus my eyes. + +I didn't like these people. I decided right then that they would pay a price for all this. + +One by one, all the prisoners went to the can, and came back, and when they were done, my guard went back to his friends and had another cup of coffee -- they were drinking out of a big cardboard urn of Starbucks, I saw -- and they had an indistinct conversation that involved a fair bit of laughter. + +Then the door at the back of the truck opened and there was fresh air, not smoky the way it had been before, but tinged with ozone. In the slice of outdoors I saw before the door closed, I caught that it was dark out, and raining, with one of those San Francisco drizzles that's part mist. + +The man who came in was wearing a military uniform. A US military uniform. He saluted the people in the truck and they saluted him back and that's when I knew that I wasn't a prisoner of some terrorists -- I was a prisoner of the United States of America. + +# + +They set up a little screen at the end of the truck and then came for us one at a time, unshackling us and leading us to the back of the truck. As close as I could work it -- counting seconds off in my head, one hippopotami, two hippopotami -- the interviews lasted about seven minutes each. My head throbbed with dehydration and caffeine withdrawal. + +I was third, brought back by the woman with the severe haircut. Up close, she looked tired, with bags under her eyes and grim lines at the corners of her mouth. + +"Thanks," I said, automatically, as she unlocked me with a remote and then dragged me to my feet. I hated myself for the automatic politeness, but it had been drilled into me. + +She didn't twitch a muscle. I went ahead of her to the back of the truck and behind the screen. There was a single folding chair and I sat in it. Two of them -- Severe Haircut woman and utility belt man -- looked at me from their ergonomic super-chairs. + +They had a little table between them with the contents of my wallet and backpack spread out on it. + +"Hello, Marcus," Severe Haircut woman said. "We have some questions for you." + +"Am I under arrest?" I asked. This wasn't an idle question. If you're not under arrest, there are limits on what the cops can and can't do to you. For starters, they can't hold you forever without arresting you, giving you a phone call, and letting you talk to a lawyer. And hoo-boy, was I ever going to talk to a lawyer. + +"What's this for?" she said, holding up my phone. The screen was showing the error message you got if you kept trying to get into its data without giving the right password. It was a bit of a rude message -- an animated hand giving a certain universally recognized gesture -- because I liked to customize my gear. + +"Am I under arrest?" I repeated. They can't make you answer any questions if you're not under arrest, and when you ask if you're under arrest, they have to answer you. It's the rules. + +"You're being detained by the Department of Homeland Security," the woman snapped. + +"Am I under arrest?" + +"You're going to be more cooperative, Marcus, starting right now." She didn't say, "or else," but it was implied. + +"I would like to contact an attorney," I said. "I would like to know what I've been charged with. I would like to see some form of identification from both of you." + +The two agents exchanged looks. + +"I think you should really reconsider your approach to this situation," Severe Haircut woman said. "I think you should do that right now. We found a number of suspicious devices on your person. We found you and your confederates near the site of the worst terrorist attack this country has ever seen. Put those two facts together and things don't look very good for you, Marcus. You can cooperate, or you can be very, very sorry. Now, what is this for?" + +"You think I'm a terrorist? I'm seventeen years old!" + +"Just the right age -- Al Qaeda loves recruiting impressionable, idealistic kids. We googled you, you know. You've posted a lot of very ugly stuff on the public Internet." + +"I would like to speak to an attorney," I said. + +Severe haircut lady looked at me like I was a bug. "You're under the mistaken impression that you've been picked up by the police for a crime. You need to get past that. You are being detained as a potential enemy combatant by the government of the United States. If I were you, I'd be thinking very hard about how to convince us that you are not an enemy combatant. Very hard. Because there are dark holes that enemy combatants can disappear into, very dark deep holes, holes where you can just vanish. Forever. Are you listening to me young man? I want you to unlock this phone and then decrypt the files in its memory. I want you to account for yourself: why were you out on the street? What do you know about the attack on this city?" + +"I'm not going to unlock my phone for you," I said, indignant. My phone's memory had all kinds of private stuff on it: photos, emails, little hacks and mods I'd installed. "That's private stuff." + +"What have you got to hide?" + +"I've got the right to my privacy," I said. "And I want to speak to an attorney." + +"This is your last chance, kid. Honest people don't have anything to hide." + +"I want to speak to an attorney." My parents would pay for it. All the FAQs on getting arrested were clear on this point. Just keep asking to see an attorney, no matter what they say or do. There's no good that comes of talking to the cops without your lawyer present. These two said they weren't cops, but if this wasn't an arrest, what was it? + +In hindsight, maybe I should have unlocked my phone for them. + +1~ Chapter 4 + +_1 /{ [This chapter is dedicated to Barnes and Noble,~{ Barnes and Noble, nationwide: http://search.barnesandnoble.com/Little-Brother/Cory-Doctorow/e/9780765319852/?itm=6 }~ a US national chain of bookstores. As America's mom-and-pop bookstores were vanishing, Barnes and Noble started to build these gigantic temples to reading all across the land. Stocking tens of thousands of titles (the mall bookstores and grocery-store spinner racks had stocked a small fraction of that) and keeping long hours that were convenient to families, working people and others potential readers, the B&N stores kept the careers of many writers afloat, stocking titles that smaller stores couldn't possibly afford to keep on their limited shelves. B&N has always had strong community outreach programs, and I've done some of my best-attended, best-organized signings at B&N stores, including the great events at the (sadly departed) B&N in Union Square, New York, where the mega-signing after the Nebula Awards took place, and the B&N in Chicago that hosted the event after the Nebs a few years later. Best of all is that B&N's "geeky" buyers really Get It when it comes to science fiction, comics and manga, games and similar titles. They're passionate and knowledgeable about the field and it shows in the excellent selection on display at the stores.] }/ + +They re-shackled and re-hooded me and left me there. A long time later, the truck started to move, rolling downhill, and then I was hauled back to my feet. I immediately fell over. My legs were so asleep they felt like blocks of ice, all except my knees, which were swollen and tender from all the hours of kneeling. + +Hands grabbed my shoulders and feet and I was picked up like a sack of potatoes. There were indistinct voices around me. Someone crying. Someone cursing. + +I was carried a short distance, then set down and re-shackled to another railing. My knees wouldn't support me anymore and I pitched forward, ending up twisted on the ground like a pretzel, straining against the chains holding my wrists. + +Then we were moving again, and this time, it wasn't like driving in a truck. The floor beneath me rocked gently and vibrated with heavy diesel engines and I realized I was on a ship! My stomach turned to ice. I was being taken off America's shores to somewhere /{else}/, and who the hell knew where that was? I'd been scared before, but this thought /{terrified}/ me, left me paralyzed and wordless with fear. I realized that I might never see my parents again and I actually tasted a little vomit burn up my throat. The bag over my head closed in on me and I could barely breathe, something that was compounded by the weird position I was twisted into. + +But mercifully we weren't on the water for very long. It felt like an hour, but I know now that it was a mere fifteen minutes, and then I felt us docking, felt footsteps on the decking around me and felt other prisoners being unshackled and carried or led away. When they came for me, I tried to stand again, but couldn't, and they carried me again, impersonally, roughly. + +When they took the hood off again, I was in a cell. + +The cell was old and crumbled, and smelled of sea air. There was one window high up, and rusted bars guarded it. It was still dark outside. There was a blanket on the floor and a little metal toilet without a seat, set into the wall. The guard who took off my hood grinned at me and closed the solid steel door behind him. + +I gently massaged my legs, hissing as the blood came back into them and into my hands. Eventually I was able to stand, and then to pace. I heard other people talking, crying, shouting. I did some shouting too: "Jolu! Darryl! Vanessa!" Other voices on the cell-block took up the cry, shouting out names, too, shouting out obscenities. The nearest voices sounded like drunks losing their minds on a street-corner. Maybe I sounded like that too. + +Guards shouted at us to be quiet and that just made everyone yell louder. Eventually we were all howling, screaming our heads off, screaming our throats raw. Why not? What did we have to lose? + +# + +The next time they came to question me, I was filthy and tired, thirsty and hungry. Severe haircut lady was in the new questioning party, as were three big guys who moved me around like a cut of meat. One was black, the other two were white, though one might have been hispanic. They all carried guns. It was like a Benneton's ad crossed with a game of Counter-Strike. + +They'd taken me from my cell and chained my wrists and ankles together. I paid attention to my surroundings as we went. I heard water outside and thought that maybe we were on Alcatraz -- it was a prison, after all, even if it had been a tourist attraction for generations, the place where you went to see where Al Capone and his gangster contemporaries did their time. But I'd been to Alcatraz on a school trip. It was old and rusted, medieval. This place felt like it dated back to World War Two, not colonial times. + +There were bar-codes laser-printed on stickers and placed on each of the cell-doors, and numbers, but other than that, there was no way to tell who or what might be behind them. + +The interrogation room was modern, with fluorescent lights, ergonomic chairs -- not for me, though, I got a folding plastic garden-chair -- and a big wooden board-room table. A mirror lined one wall, just like in the cop shows, and I figured someone or other must be watching from behind it. Severe haircut lady and her friends helped themselves to coffees from an urn on a side-table (I could have torn her throat out with my teeth and taken her coffee just then), and then set a styrofoam cup of water down next to me -- without unlocking my wrists from behind my back, so I couldn't reach it. Hardy har har. + +"Hello, Marcus," Severe Haircut woman said. "How's your 'tude doing today?" + +I didn't say anything. + +"This isn't as bad as it gets you know," she said. "This is as /{good}/ as it gets from now on. Even once you tell us what we want to know, even if that convinces us that you were just in the wrong place at the wrong time, you're a marked man now. We'll be watching you everywhere you go and everything you do. You've acted like you've got something to hide, and we don't like that." + +It's pathetic, but all my brain could think about was that phrase, "convince us that you were in the wrong place at the wrong time." This was the worst thing that had ever happened to me. I had never, ever felt this bad or this scared before. Those words, "wrong place at the wrong time," those six words, they were like a lifeline dangling before me as I thrashed to stay on the surface. + +"Hello, Marcus?" she snapped her fingers in front of my face. "Over here, Marcus." There was a little smile on her face and I hated myself for letting her see my fear. "Marcus, it can be a lot worse than this. This isn't the worst place we can put you, not by a damned sight." She reached down below the table and came out with a briefcase, which she snapped open. From it, she withdrew my phone, my arphid sniper/cloner, my wifinder, and my memory keys. She set them down on the table one after the other. + +"Here's what we want from you. You unlock the phone for us today. If you do that, you'll get outdoor and bathing privileges. You'll get a shower and you'll be allowed to walk around in the exercise yard. Tomorrow, we'll bring you back and ask you to decrypt the data on these memory sticks. Do that, and you'll get to eat in the mess hall. The day after, we're going to want your email passwords, and that will get you library privileges." + +The word "no" was on my lips, like a burp trying to come up, but it wouldn't come. "Why?" is what came out instead. + +"We want to be sure that you're what you seem to be. This is about your security, Marcus. Say you're innocent. You might be, though why an innocent man would act like he's got so much to hide is beyond me. But say you are: you could have been on that bridge when it blew. Your parents could have been. Your friends. Don't you want us to catch the people who attacked your home?" + +It's funny, but when she was talking about my getting "privileges" it scared me into submission. I felt like I'd done /{something}/ to end up where I was, like maybe it was partially my fault, like I could do something to change it. + +But as soon as she switched to this BS about "safety" and "security," my spine came back. "Lady," I said, "you're talking about attacking my home, but as far as I can tell, you're the only one who's attacked me lately. I thought I lived in a country with a constitution. I thought I lived in a country where I had /{rights}/. You're talking about defending my freedom by tearing up the Bill of Rights." + +A flicker of annoyance passed over her face, then went away. "So melodramatic, Marcus. No one's attacked you. You've been detained by your country's government while we seek details on the worst terrorist attack ever perpetrated on our nation's soil. You have it within your power to help us fight this war on our nation's enemies. You want to preserve the Bill of Rights? Help us stop bad people from blowing up your city. Now, you have exactly thirty seconds to unlock that phone before I send you back to your cell. We have lots of other people to interview today." + +She looked at her watch. I rattled my wrists, rattled the chains that kept me from reaching around and unlocking the phone. Yes, I was going to do it. She'd told me what my path was to freedom -- to the world, to my parents -- and that had given me hope. Now she'd threatened to send me away, to take me off that path, and my hope had crashed and all I could think of was how to get back on it. + +So I rattled my wrists, wanting to get to my phone and unlock it for her, and she just looked at me coldly, checking her watch. + +"The password," I said, finally understanding what she wanted of me. She wanted me to say it out loud, here, where she could record it, where her pals could hear it. She didn't want me to just unlock the phone. She wanted me to submit to her. To put her in charge of me. To give up every secret, all my privacy. "The password," I said again, and then I told her the password. God help me, I submitted to her will. + +She smiled a little prim smile, which had to be her ice-queen equivalent of a touchdown dance, and the guards led me away. As the door closed, I saw her bend down over the phone and key the password in. + +I wish I could say that I'd anticipated this possibility in advance and created a fake password that unlocked a completely innocuous partition on my phone, but I wasn't nearly that paranoid/clever. + +You might be wondering at this point what dark secrets I had locked away on my phone and memory sticks and email. I'm just a kid, after all. + +The truth is that I had everything to hide, and nothing. Between my phone and my memory sticks, you could get a pretty good idea of who my friends were, what I thought of them, all the goofy things we'd done. You could read the transcripts of the electronic arguments we'd carried out and the electronic reconciliations we'd arrived at. + +You see, I don't delete stuff. Why would I? Storage is cheap, and you never know when you're going to want to go back to that stuff. Especially the stupid stuff. You know that feeling you get sometimes where you're sitting on the subway and there's no one to talk to and you suddenly remember some bitter fight you had, some terrible thing you said? Well, it's usually never as bad as you remember. Being able to go back and see it again is a great way to remind yourself that you're not as horrible a person as you think you are. Darryl and I have gotten over more fights that way than I can count. + +And even that's not it. I know my phone is private. I know my memory sticks are private. That's because of cryptography -- message scrambling. The math behind crypto is good and solid, and you and me get access to the same crypto that banks and the National Security Agency use. There's only one kind of crypto that anyone uses: crypto that's public, open and can be deployed by anyone. That's how you know it works. + +There's something really liberating about having some corner of your life that's /{yours}/, that no one gets to see except you. It's a little like nudity or taking a dump. Everyone gets naked every once in a while. Everyone has to squat on the toilet. There's nothing shameful, deviant or weird about either of them. But what if I decreed that from now on, every time you went to evacuate some solid waste, you'd have to do it in a glass room perched in the middle of Times Square, and you'd be buck naked? + +Even if you've got nothing wrong or weird with your body -- and how many of us can say that? -- you'd have to be pretty strange to like that idea. Most of us would run screaming. Most of us would hold it in until we exploded. + +It's not about doing something shameful. It's about doing something /{private}/. It's about your life belonging to you. + +They were taking that from me, piece by piece. As I walked back to my cell, that feeling of deserving it came back to me. I'd broken a lot of rules all my life and I'd gotten away with it, by and large. Maybe this was justice. Maybe this was my past coming back to me. After all, I had been where I was because I'd snuck out of school. + +I got my shower. I got to walk around the yard. There was a patch of sky overhead, and it smelled like the Bay Area, but beyond that, I had no clue where I was being held. No other prisoners were visible during my exercise period, and I got pretty bored with walking in circles. I strained my ears for any sound that might help me understand what this place was, but all I heard was the occasional vehicle, some distant conversations, a plane landing somewhere nearby. + +They brought me back to my cell and fed me, a half a pepperoni pie from Goat Hill Pizza, which I knew well, up on Potrero Hill. The carton with its familiar graphic and 415 phone number was a reminder that only a day before, I'd been a free man in a free country and that now I was a prisoner. I worried constantly about Darryl and fretted about my other friends. Maybe they'd been more cooperative and had been released. Maybe they'd told my parents and they were frantically calling around. + +Maybe not. + +The cell was fantastically spare, empty as my soul. I fantasized that the wall opposite my bunk was a screen, that I could be hacking right now, opening the cell-door. I fantasized about my workbench and the projects there -- the old cans I was turning into a ghetto surround-sound rig, the aerial photography kite-cam I was building, my homebrew laptop. + +I wanted to get out of there. I wanted to go home and have my friends and my school and my parents and my life back. I wanted to be able to go where I wanted to go, not be stuck pacing and pacing and pacing. + +# + +They took my passwords for my USB keys next. Those held some interesting messages I'd downloaded from one online discussion group or another, some chat transcripts, things where people had helped me out with some of the knowledge I needed to do the things I did. There was nothing on there you couldn't find with Google, of course, but I didn't think that would count in my favor. + +I got exercise again that afternoon, and this time there were others in the yard when I got there, four other guys and two women, of all ages and racial backgrounds. I guess lots of people were doing things to earn their "privileges." + +They gave me half an hour, and I tried to make conversation with the most normal-seeming of the other prisoners, a black guy about my age with a short afro. But when I introduced myself and stuck my hand out, he cut his eyes toward the cameras mounted ominously in the corners of the yard and kept walking without ever changing his facial expression. + +But then, just before they called my name and brought me back into the building, the door opened and out came -- Vanessa! I'd never been more glad to see a friendly face. She looked tired and grumpy, but not hurt, and when she saw me, she shouted my name and ran to me. We hugged each other hard and I realized I was shaking. Then I realized she was shaking, too. + +"Are you OK?" she said, holding me at arms' length. + +"I'm OK," I said. "They told me they'd let me go if I gave them my passwords." + +"They keep asking me questions about you and Darryl." + +There was a voice blaring over the loudspeaker, shouting at us to stop talking, to walk, but we ignored it. + +"Answer them," I said, instantly. "Anything they ask, answer them. If it'll get you out." + +"How are Darryl and Jolu?" + +"I haven't seen them." + +The door banged open and four big guards boiled out. Two took me and two took Vanessa. They forced me to the ground and turned my head away from Vanessa, though I heard her getting the same treatment. Plastic cuffs went around my wrists and then I was yanked to my feet and brought back to my cell. + +No dinner came that night. No breakfast came the next morning. No one came and brought me to the interrogation room to extract more of my secrets. The plastic cuffs didn't come off, and my shoulders burned, then ached, then went numb, then burned again. I lost all feeling in my hands. + +I had to pee. I couldn't undo my pants. I really, really had to pee. + +I pissed myself. + +They came for me after that, once the hot piss had cooled and gone clammy, making my already filthy jeans stick to my legs. They came for me and walked me down the long hall lined with doors, each door with its own bar code, each bar code a prisoner like me. They walked me down the corridor and brought me to the interrogation room and it was like a different planet when I entered there, a world where things were normal, where everything didn't reek of urine. I felt so dirty and ashamed, and all those feelings of deserving what I got came back to me. + +Severe haircut lady was already sitting. She was perfect: coifed and with just a little makeup. I smelled her hair stuff. She wrinkled her nose at me. I felt the shame rise in me. + +"Well, you've been a very naughty boy, haven't you? Aren't you a filthy thing?" + +Shame. I looked down at the table. I couldn't bear to look up. I wanted to tell her my email password and get gone. + +"What did you and your friend talk about in the yard?" + +I barked a laugh at the table. "I told her to answer your questions. I told her to cooperate." + +"So do you give the orders?" + +I felt the blood sing in my ears. "Oh come on," I said. "We play a /{game}/ together, it's called Harajuku Fun Madness. I'm the /{team captain}/. We're not terrorists, we're high school students. I don't give her orders. I told her that we needed to be /{honest}/ with you so that we could clear up any suspicion and get out of here." + +She didn't say anything for a moment. + +"How is Darryl?" I said. + +"Who?" + +"Darryl. You picked us up together. My friend. Someone had stabbed him in the Powell Street BART. That's why we were up on the surface. To get him help." + +"I'm sure he's fine, then," she said. + +My stomach knotted and I almost threw up. "You don't /{know}/? You haven't got him here?" + +"Who we have here and who we don't have here is not something we're going to discuss with you, ever. That's not something you're going to know. Marcus, you've seen what happens when you don't cooperate with us. You've seen what happens when you disobey our orders. You've been a little cooperative, and it's gotten you almost to the point where you might go free again. If you want to make that possibility into a reality, you'll stick to answering my questions." + +I didn't say anything. + +"You're learning, that's good. Now, your email passwords, please." + +I was ready for this. I gave them everything: server address, login, password. This didn't matter. I didn't keep any email on my server. I downloaded it all and kept it on my laptop at home, which downloaded and deleted my mail from the server every sixty seconds. They wouldn't get anything out of my mail -- it got cleared off the server and stored on my laptop at home. + +Back to the cell, but they cut loose my hands and they gave me a shower and a pair of orange prison pants to wear. They were too big for me and hung down low on my hips, like a Mexican gang-kid in the Mission. That's where the baggy-pants-down-your-ass look comes from you know that? From prison. I tell you what, it's less fun when it's not a fashion statement. + +They took away my jeans, and I spent another day in the cell. The walls were scratched cement over a steel grid. You could tell, because the steel was rusting in the salt air, and the grid shone through the green paint in red-orange. My parents were out that window, somewhere. + +They came for me again the next day. + +"We've been reading your mail for a day now. We changed the password so that your home computer couldn't fetch it." + +Well, of course they had. I would have done the same, now that I thought of it. + +"We have enough on you now to put you away for a very long time, Marcus. Your possession of these articles --" she gestured at all my little gizmos -- "and the data we recovered from your phone and memory sticks, as well as the subversive material we'd no doubt find if we raided your house and took your computer. It's enough to put you away until you're an old man. Do you understand that?" + +I didn't believe it for a second. There's no way a judge would say that all this stuff constituted any kind of real crime. It was free speech, it was technological tinkering. It wasn't a crime. + +But who said that these people would ever put me in front of a judge. + +"We know where you live, we know who your friends are. We know how you operate and how you think." + +It dawned on me then. They were about to let me go. The room seemed to brighten. I heard myself breathing, short little breaths. + +"We just want to know one thing: what was the delivery mechanism for the bombs on the bridge?" + +I stopped breathing. The room darkened again. + +"What?" + +"There were ten charges on the bridge, all along its length. They weren't in car-trunks. They'd been placed there. Who placed them there, and how did they get there?" + +"What?" I said it again. + +"This is your last chance, Marcus," she said. She looked sad. "You were doing so well until now. Tell us this and you can go home. You can get a lawyer and defend yourself in a court of law. There are doubtless extenuating circumstances that you can use to explain your actions. Just tell us this thing, and you're gone." + +"I don't know what you're talking about!" I was crying and I didn't even care. Sobbing, blubbering. "I have /{no idea what you're talking about}/!" + +She shook her head. "Marcus, please. Let us help you. By now you know that we always get what we're after." + +There was a gibbering sound in the back of my mind. They were /{insane}/. I pulled myself together, working hard to stop the tears. "Listen, lady, this is nuts. You've been into my stuff, you've seen it all. I'm a seventeen year old high school student, not a terrorist! You can't seriously think --" + +"Marcus, haven't you figured out that we're serious yet?" She shook her head. "You get pretty good grades. I thought you'd be smarter than that." She made a flicking gesture and the guards picked me up by the armpits. + +Back in my cell, a hundred little speeches occurred to me. The French call this "esprit d'escalier" -- the spirit of the staircase, the snappy rebuttals that come to you after you leave the room and slink down the stairs. In my mind, I stood and delivered, telling her that I was a citizen who loved my freedom, which made me the patriot and made her the traitor. In my mind, I shamed her for turning my country into an armed camp. In my mind, I was eloquent and brilliant and reduced her to tears. + +But you know what? None of those fine words came back to me when they pulled me out the next day. All I could think of was freedom. My parents. + +"Hello, Marcus," she said. "How are you feeling?" + +I looked down at the table. She had a neat pile of documents in front of her, and her ubiquitous go-cup of Starbucks beside her. I found it comforting somehow, a reminder that there was a real world out there somewhere, beyond the walls. + +"We're through investigating you, for now." She let that hang there. Maybe it meant that she was letting me go. Maybe it meant that she was going to throw me in a pit and forget that I existed. + +"And?" I said finally. + +"And I want you to impress on you again that we are very serious about this. Our country has experienced the worst attack ever committed on its soil. How many 9/11s do you want us to suffer before you're willing to cooperate? The details of our investigation are secret. We won't stop at anything in our efforts to bring the perpetrators of these heinous crimes to justice. Do you understand that?" + +"Yes," I mumbled. + +"We are going to send you home today, but you are a marked man. You have not been found to be above suspicion -- we're only releasing you because we're done questioning you for now. But from now on, you /{belong}/ to us. We will be watching you. We'll be waiting for you to make a misstep. Do you understand that we can watch you closely, all the time?" + +"Yes," I mumbled. + +"Good. You will never speak of what happened here to anyone, ever. This is a matter of national security. Do you know that the death penalty still holds for treason in time of war?" + +"Yes," I mumbled. + +"Good boy," she purred. "We have some papers here for you to sign." She pushed the stack of papers across the table to me. Little post-its with SIGN HERE printed on them had been stuck throughout them. A guard undid my cuffs. + +I paged through the papers and my eyes watered and my head swam. I couldn't make sense of them. I tried to decipher the legalese. It seemed that I was signing a declaration that I had been voluntarily held and submitted to voluntary questioning, of my own free will. + +"What happens if I don't sign this?" I said. + +She snatched the papers back and made that flicking gesture again. The guards jerked me to my feet. + +"Wait!" I cried. "Please! I'll sign them!" They dragged me to the door. All I could see was that door, all I could think of was it closing behind me. + +I lost it. I wept. I begged to be allowed to sign the papers. To be so close to freedom and have it snatched away, it made me ready to do anything. I can't count the number of times I've heard someone say, "Oh, I'd rather die than do something-or-other" -- I've said it myself now and again. But that was the first time I understood what it really meant. I would have rather died than go back to my cell. + +I begged as they took me out into the corridor. I told them I'd sign anything. + +She called out to the guards and they stopped. They brought me back. They sat me down. One of them put the pen in my hand. + +Of course, I signed, and signed and signed. + +# + +My jeans and t-shirt were back in my cell, laundered and folded. They smelled of detergent. I put them on and washed my face and sat on my cot and stared at the wall. They'd taken everything from me. First my privacy, then my dignity. I'd been ready to sign anything. I would have signed a confession that said I'd assassinated Abraham Lincoln. + +I tried to cry, but it was like my eyes were dry, out of tears. + +They got me again. A guard approached me with a hood, like the hood I'd been put in when they picked us up, whenever that was, days ago, weeks ago. + +The hood went over my head and cinched tight at my neck. I was in total darkness and the air was stifling and stale. I was raised to my feet and walked down corridors, up stairs, on gravel. Up a gangplank. On a ship's steel deck. My hands were chained behind me, to a railing. I knelt on the deck and listened to the thrum of the diesel engines. + +The ship moved. A hint of salt air made its way into the hood. It was drizzling and my clothes were heavy with water. I was outside, even if my head was in a bag. I was outside, in the world, moments from my freedom. + +They came for me and led me off the boat and over uneven ground. Up three metal stairs. My wrists were unshackled. My hood was removed. + +I was back in the truck. Severe haircut woman was there, at the little desk she'd sat at before. She had a ziploc bag with her, and inside it were my phone and other little devices, my wallet and the change from my pockets. She handed them to me wordlessly. + +I filled my pockets. It felt so weird to have everything back in its familiar place, to be wearing my familiar clothes. Outside the truck's back door, I heard the familiar sounds of my familiar city. + +A guard passed me my backpack. The woman extended her hand to me. I just looked at it. She put it down and gave me a wry smile. Then she mimed zipping up her lips and pointed to me, and opened the door. + +It was daylight outside, gray and drizzling. I was looking down an alley toward cars and trucks and bikes zipping down the road. I stood transfixed on the truck's top step, staring at freedom. + +My knees shook. I knew now that they were playing with me again. In a moment, the guards would grab me and drag me back inside, the bag would go over my head again, and I would be back on the boat and sent off to the prison again, to the endless, unanswerable questions. I barely held myself back from stuffing my fist in my mouth. + +Then I forced myself to go down one stair. Another stair. The last stair. My sneakers crunched down on the crap on the alley's floor, broken glass, a needle, gravel. I took a step. Another. I reached the mouth of the alley and stepped onto the sidewalk. + +No one grabbed me. + +I was free. + +Then strong arms threw themselves around me. I nearly cried. + +1~ Chapter 5 + +_1 /{ [This chapter is dedicated to Secret Headquarters in Los Angeles,~{ Secret Headquarters: http://www.thesecretheadquarters.com/ 3817 W. Sunset Boulevard, Los Angeles, CA 90026 +1 323 666 2228 }~ my drop-dead all-time favorite comic store in the world. It's small and selective about what it stocks, and every time I walk in, I walk out with three or four collections I'd never heard of under my arm. It's like the owners, Dave and David, have the uncanny ability to predict exactly what I'm looking for, and they lay it out for me seconds before I walk into the store. I discovered about three quarters of my favorite comics by wandering into SHQ, grabbing something interesting, sinking into one of the comfy chairs, and finding myself transported to another world. When my second story-collection, OVERCLOCKED, came out, they worked with local illustrator Martin Cenreda to do a free mini-comic based on Printcrime, the first story in the book. I left LA about a year ago, and of all the things I miss about it, Secret Headquarters is right at the top of the list.] }/ + +But it was Van, and she /{was}/ crying, and hugging me so hard I couldn't breathe. I didn't care. I hugged her back, my face buried in her hair. + +"You're OK!" she said. + +"I'm OK," I managed. + +She finally let go of me and another set of arms wrapped themselves around me. It was Jolu! They were both there. He whispered, "You're safe, bro," in my ear and hugged me even tighter than Vanessa had. + +When he let go, I looked around. "Where's Darryl?" I asked. + +They both looked at each other. "Maybe he's still in the truck," Jolu said. + +We turned and looked at the truck at the alley's end. It was a nondescript white 18-wheeler. Someone had already brought the little folding staircase inside. The rear lights glowed red, and the truck rolled backwards towards us, emitting a steady eep, eep, eep. + +"Wait!" I shouted as it accelerated towards us. "Wait! What about Darryl?" The truck drew closer. I kept shouting. "What about Darryl?" + +Jolu and Vanessa each had me by an arm and were dragging me away. I struggled against them, shouting. The truck pulled out of the alley's mouth and reversed into the street and pointed itself downhill and drove away. I tried to run after it, but Van and Jolu wouldn't let me go. + +I sat down on the sidewalk and put my arms around my knees and cried. I cried and cried and cried, loud sobs of the sort I hadn't done since I was a little kid. They wouldn't stop coming. I couldn't stop shaking. + +Vanessa and Jolu got me to my feet and moved me a little ways up the street. There was a Muni bus stop with a bench and they sat me on it. They were both crying too, and we held each other for a while, and I knew we were crying for Darryl, whom none of us ever expected to see again. + +# + +We were north of Chinatown, at the part where it starts to become North Beach, a neighborhood with a bunch of neon strip clubs and the legendary City Lights counterculture bookstore, where the Beat poetry movement had been founded back in the 1950s. + +I knew this part of town well. My parents' favorite Italian restaurant was here and they liked to take me here for big plates of linguine and huge Italian ice-cream mountains with candied figs and lethal little espressos afterward. + +Now it was a different place, a place where I was tasting freedom for the first time in what seemed like an eternity. + +We checked our pockets and found enough money to get a table at one of the Italian restaurants, out on the sidewalk, under an awning. The pretty waitress lighted a gas-heater with a barbeque lighter, took our orders and went inside. The sensation of giving orders, of controlling my destiny, was the most amazing thing I'd ever felt. + +"How long were we in there?" I asked. + +"Six days," Vanessa said. + +"I got five," Jolu said. + +"I didn't count." + +"What did they do to you?" Vanessa said. I didn't want to talk about it, but they were both looking at me. Once I started, I couldn't stop. I told them everything, even when I'd been forced to piss myself, and they took it all in silently. I paused when the waitress delivered our sodas and waited until she got out of earshot, then finished. In the telling, it receded into the distance. By the end of it, I couldn't tell if I was embroidering the truth or if I was making it all seem /{less}/ bad. My memories swam like little fish that I snatched at, and sometimes they wriggled out of my grasp. + +Jolu shook his head. "They were hard on you, dude," he said. He told us about his stay there. They'd questioned him, mostly about me, and he'd kept on telling them the truth, sticking to a plain telling of the facts about that day and about our friendship. They had gotten him to repeat it over and over again, but they hadn't played games with his head the way they had with me. He'd eaten his meals in a mess-hall with a bunch of other people, and been given time in a TV room where they were shown last year's blockbusters on video. + +Vanessa's story was only slightly different. After she'd gotten them angry by talking to me, they'd taken away her clothes and made her wear a set of orange prison overalls. She'd been left in her cell for two days without contact, though she'd been fed regularly. But mostly it was the same as Jolu: the same questions, repeated again and again. + +"They really hated you," Jolu said. "Really had it in for you. Why?" + +I couldn't imagine why. Then I remembered. + +/{You can cooperate, or you can be very, very sorry.}/ + +"It was because I wouldn't unlock my phone for them, that first night. That's why they singled me out." I couldn't believe it, but there was no other explanation. It had been sheer vindictiveness. My mind reeled at the thought. They had done all that as a mere punishment for defying their authority. + +I had been scared. Now I was angry. "Those bastards," I said, softly. "They did it to get back at me for mouthing off." + +Jolu swore and then Vanessa cut loose in Korean, something she only did when she was really, really angry. + +"I'm going to get them," I whispered, staring at my soda. "I'm going to get them." + +Jolu shook his head. "You can't, you know. You can't fight back against that." + +# + +None of us much wanted to talk about revenge then. Instead, we talked about what we would do next. We had to go home. Our phones' batteries were dead and it had been years since this neighborhood had any payphones. We just needed to go home. I even thought about taking a taxi, but there wasn't enough money between us to make that possible. + +So we walked. On the corner, we pumped some quarters into a San Francisco Chronicle newspaper box and stopped to read the front section. It had been five days since the bombs went off, but it was still all over the front cover. + +Severe haircut woman had talked about "the bridge" blowing up, and I'd just assumed that she was talking about the Golden Gate bridge, but I was wrong. The terrorists had blown up the /{Bay bridge}/. + +"Why the hell would they blow up the Bay Bridge?" I said. "The Golden Gate is the one on all the postcards." Even if you've never been to San Francisco, chances are you know what the Golden Gate looks like: it's that big orange suspension bridge that swoops dramatically from the old military base called the Presidio to Sausalito, where all the cutesy wine-country towns are with their scented candle shops and art galleries. It's picturesque as hell, and it's practically the symbol for the state of California. If you go to the Disneyland California Adventure park, there's a replica of it just past the gates, with a monorail running over it. + +So naturally I assumed that if you were going to blow up a bridge in San Francisco, that's the one you'd blow. + +"They probably got scared off by all the cameras and stuff," Jolu said. "The National Guard's always checking cars at both ends and there's all those suicide fences and junk all along it." People have been jumping off the Golden Gate since it opened in 1937 -- they stopped counting after the thousandth suicide in 1995. + +"Yeah," Vanessa said. "Plus the Bay Bridge actually goes somewhere." The Bay Bridge goes from downtown San Francisco to Oakland and thence to Berkeley, the East Bay townships that are home to many of the people who live and work in town. It's one of the only parts of the Bay Area where a normal person can afford a house big enough to really stretch out in, and there's also the university and a bunch of light industry over there. The BART goes under the Bay and connects the two cities, too, but it's the Bay Bridge that sees most of the traffic. The Golden Gate was a nice bridge if you were a tourist or a rich retiree living out in wine country, but it was mostly ornamental. The Bay Bridge is -- was -- San Francisco's work-horse bridge. + +I thought about it for a minute. "You guys are right," I said. "But I don't think that's all of it. We keep acting like terrorists attack landmarks because they hate landmarks. Terrorists don't hate landmarks or bridges or airplanes. They just want to screw stuff up and make people scared. To make terror. So of course they went after the Bay Bridge after the Golden Gate got all those cameras -- after airplanes got all metal-detectored and X-rayed." I thought about it some more, staring blankly at the cars rolling down the street, at the people walking down the sidewalks, at the city all around me. "Terrorists don't hate airplanes or bridges. They love terror." It was so obvious I couldn't believe I'd never thought of it before. I guess that being treated like a terrorist for a few days was enough to clarify my thinking. + +The other two were staring at me. "I'm right, aren't I? All this crap, all the X-rays and ID checks, they're all useless, aren't they?" + +They nodded slowly. + +"Worse than useless," I said, my voice going up and cracking. "Because they ended up with us in prison, with Darryl --" I hadn't thought of Darryl since we sat down and now it came back to me, my friend, missing, disappeared. I stopped talking and ground my jaws together. + +"We have to tell our parents," Jolu said. + +"We should get a lawyer," Vanessa said. + +I thought of telling my story. Of telling the world what had become of me. Of the videos that would no doubt come out, of me weeping, reduced to a groveling animal. + +"We can't tell them anything," I said, without thinking. + +"What do you mean?" Van said. + +"We can't tell them anything," I repeated. "You heard her. If we talk, they'll come back for us. They'll do to us what they did to Darryl." + +"You're joking," Jolu said. "You want us to --" + +"I want us to fight back," I said. "I want to stay free so that I can do that. If we go out there and blab, they'll just say that we're kids, making it up. We don't even know where we were held! No one will believe us. Then, one day, they'll come for us. + +"I'm telling my parents that I was in one of those camps on the other side of the Bay. I came over to meet you guys there and we got stranded, and just got loose today. They said in the papers that people were still wandering home from them." + +"I can't do that," Vanessa said. "After what they did to you, how can you even think of doing that?" + +"It happened to /{me}/, that's the point. This is me and them, now. I'll beat them, I'll get Darryl. I'm not going to take this lying down. But once our parents are involved, that's it for us. No one will believe us and no one will care. If we do it my way, people will care." + +"What's your way?" Jolu said. "What's your plan?" + +"I don't know yet," I admitted. "Give me until tomorrow morning, give me that, at least." I knew that once they'd kept it a secret for a day, it would have to be a secret forever. Our parents would be even more skeptical if we suddenly "remembered" that we'd been held in a secret prison instead of taken care of in a refugee camp. + +Van and Jolu looked at each other. + +"I'm just asking for a chance," I said. "We'll work out the story on the way, get it straight. Give me one day, just one day." + +The other two nodded glumly and we set off downhill again, heading back towards home. I lived on Potrero Hill, Vanessa lived in the North Mission and Jolu lived in Noe Valley -- three wildly different neighborhoods just a few minutes' walk from one another. + +We turned onto Market Street and stopped dead. The street was barricaded at every corner, the cross-streets reduced to a single lane, and parked down the whole length of Market Street were big, nondescript 18-wheelers like the one that had carried us, hooded, away from the ship's docks and to Chinatown. + +Each one had three steel steps leading down from the back and they buzzed with activity as soldiers, people in suits, and cops went in and out of them. The suits wore little badges on their lapels and the soldiers scanned them as they went in and out -- wireless authorization badges. As we walked past one, I got a look at it, and saw the familiar logo: Department of Homeland Security. The soldier saw me staring and stared back hard, glaring at me. + +I got the message and moved on. I peeled away from the gang at Van Ness. We clung to each other and cried and promised to call each other. + +The walk back to Potrero Hill has an easy route and a hard route, the latter taking you over some of the steepest hills in the city, the kind of thing that you see car chases on in action movies, with cars catching air as they soar over the zenith. I always take the hard way home. It's all residential streets, and the old Victorian houses they call "painted ladies" for their gaudy, elaborate paint-jobs, and front gardens with scented flowers and tall grasses. Housecats stare at you from hedges, and there are hardly any homeless. + +It was so quiet on those streets that it made me wish I'd taken the /{other}/ route, through the Mission, which is... /{raucous}/ is probably the best word for it. Loud and vibrant. Lots of rowdy drunks and angry crack-heads and unconscious junkies, and also lots of families with strollers, old ladies gossiping on stoops, lowriders with boom-cars going thumpa-thumpa-thumpa down the streets. There were hipsters and mopey emo art-students and even a couple old-school punk-rockers, old guys with pot bellies bulging out beneath their Dead Kennedys shirts. Also drag queens, angry gang kids, graffiti artists and bewildered gentrifiers trying not to get killed while their real-estate investments matured. + +I went up Goat Hill and walked past Goat Hill Pizza, which made me think of the jail I'd been held in, and I had to sit down on the bench out front of the restaurant until my shakes passed. Then I noticed the truck up the hill from me, a nondescript 18-wheeler with three metal steps coming down from the back end. I got up and got moving. I felt the eyes watching me from all directions. + +I hurried the rest of the way home. I didn't look at the painted ladies or the gardens or the housecats. I kept my eyes down. + +Both my parents' cars were in the driveway, even though it was the middle of the day. Of course. Dad works in the East Bay, so he'd be stuck at home while they worked on the bridge. Mom -- well, who knew why Mom was home. + +They were home for me. + +Even before I'd finished unlocking the door it had been jerked out of my hand and flung wide. There were both of my parents, looking gray and haggard, bug-eyed and staring at me. We stood there in frozen tableau for a moment, then they both rushed forward and dragged me into the house, nearly tripping me up. They were both talking so loud and fast all I could hear was a wordless, roaring gabble and they both hugged me and cried and I cried too and we just stood there like that in the little foyer, crying and making almost-words until we ran out of steam and went into the kitchen. + +I did what I always did when I came home: got myself a glass of water from the filter in the fridge and dug a couple cookies out of the "biscuit barrel" that mom's sister had sent us from England. The normalcy of this made my heart stop hammering, my heart catching up with my brain, and soon we were all sitting at the table. + +"Where have you been?" they both said, more or less in unison. + +I had given this some thought on the way home. "I got trapped," I said. "In Oakland. I was there with some friends, doing a project, and we were all quarantined." + +"For five days?" + +"Yeah," I said. "Yeah. It was really bad." I'd read about the quarantines in the Chronicle and I cribbed shamelessly from the quotes they'd published. "Yeah. Everyone who got caught in the cloud. They thought we had been attacked with some kind of super-bug and they packed us into shipping containers in the docklands, like sardines. It was really hot and sticky. Not much food, either." + +"Christ," Dad said, his fists balling up on the table. Dad teaches in Berkeley three days a week, working with a few grad students in the library science program. The rest of the time he consults for clients in city and down the Peninsula, third-wave dotcoms that are doing various things with archives. He's a mild-mannered librarian by profession, but he'd been a real radical in the sixties and wrestled a little in high school. I'd seen him get crazy angry now and again -- I'd even made him that angry now and again -- and he could seriously lose it when he was Hulking out. He once threw a swing-set from Ikea across my granddad's whole lawn when it fell apart for the fiftieth time while he was assembling it. + +"Barbarians," Mom said. She's been living in America since she was a teenager, but she still comes over all British when she encounters American cops, health-care, airport security or homelessness. Then the word is "barbarians," and her accent comes back strong. We'd been to London twice to see her family and I can't say as it felt any more civilized than San Francisco, just more cramped. + +"But they let us go, and ferried us over today." I was improvising now. + +"Are you hurt?" Mom said. "Hungry?" + +"Sleepy?" + +"Yeah, a little of all that. Also Dopey, Doc, Sneezy and Bashful." We had a family tradition of Seven Dwarfs jokes. They both smiled a little, but their eyes were still wet. I felt really bad for them. They must have been out of their minds with worry. I was glad for a chance to change the subject. "I'd totally love to eat." + +"I'll order a pizza from Goat Hill," Dad said. + +"No, not that," I said. They both looked at me like I'd sprouted antennae. I normally have a thing about Goat Hill Pizza -- as in, I can normally eat it like a goldfish eats his food, gobbling until it either runs out or I pop. I tried to smile. "I just don't feel like pizza," I said, lamely. "Let's order some curry, OK?" Thank heaven that San Francisco is take-out central. + +Mom went to the drawer of take-out menus (more normalcy, feeling like a drink of water on a dry, sore throat) and riffled through them. We spent a couple of distracting minutes going through the menu from the halal Pakistani place on Valencia. I settled on a mixed tandoori grill and creamed spinach with farmer's cheese, a salted mango lassi (much better than it sounds) and little fried pastries in sugar syrup. + +Once the food was ordered, the questions started again. They'd heard from Van's, Jolu's and Darryl's families (of course) and had tried to report us missing. The police were taking names, but there were so many "displaced persons" that they weren't going to open files on anyone unless they were still missing after seven days. + +Meanwhile, millions of have-you-seen sites had popped up on the net. A couple of the sites were old MySpace clones that had run out of money and saw a new lease on life from all the attention. After all, some venture capitalists had missing family in the Bay Area. Maybe if they were recovered, the site would attract some new investment. I grabbed dad's laptop and looked through them. They were plastered with advertising, of course, and pictures of missing people, mostly grad photos, wedding pictures and that sort of thing. It was pretty ghoulish. + +I found my pic and saw that it was linked to Van's, Jolu's, and Darryl's. There was a little form for marking people found and another one for writing up notes about other missing people. I filled in the fields for me and Jolu and Van, and left Darryl blank. + +"You forgot Darryl," Dad said. He didn't like Darryl much -- once he'd figured out that a couple inches were missing out of one of the bottles in his liquor cabinet, and to my enduring shame I'd blamed it on Darryl. In truth, of course, it had been both of us, just fooling around, trying out vodka-and-Cokes during an all-night gaming session. + +"He wasn't with us," I said. The lie tasted bitter in my mouth. + +"Oh my God," my mom said. She squeezed her hands together. "We just assumed when you came home that you'd all been together." + +"No," I said, the lie growing. "No, he was supposed to meet us but we never met up. He's probably just stuck over in Berkeley. He was going to take the BART over." + +Mom made a whimpering sound. Dad shook his head and closed his eyes. "Don't you know about the BART?" he said. + +I shook my head. I could see where this was going. I felt like the ground was rushing up to me. + +"They blew it up," Dad said. "The bastards blew it up at the same time as the bridge." + +That hadn't been on the front page of the Chronicle, but then, a BART blowout under the water wouldn't be nearly as picturesque as the images of the bridge hanging in tatters and pieces over the Bay. The BART tunnel from the Embarcadero in San Francisco to the West Oakland station was submerged. + +I went back to Dad's computer and surfed the headlines. No one was sure, but the body count was in the thousands. Between the cars that plummeted 191 feet to the sea and the people drowned in the trains, the deaths were mounting. One reporter claimed to have interviewed an "identity counterfeiter" who'd helped "dozens" of people walk away from their old lives by simply vanishing after the attacks, getting new ID made up, and slipping away from bad marriages, bad debts and bad lives. + +Dad actually got tears in his eyes, and Mom was openly crying. They each hugged me again, patting me with their hands as if to assure themselves that I was really there. They kept telling me they loved me. I told them I loved them too. + +We had a weepy dinner and Mom and Dad had each had a couple glasses of wine, which was a lot for them. I told them that I was getting sleepy, which was true, and mooched up to my room. I wasn't going to bed, though. I needed to get online and find out what was going on. I needed to talk to Jolu and Vanessa. I needed to get working on finding Darryl. + +I crept up to my room and opened the door. I hadn't seen my old bed in what felt like a thousand years. I lay down on it and reached over to my bedstand to grab my laptop. I must have not plugged it in all the way -- the electrical adapter needed to be jiggled just right -- so it had slowly discharged while I was away. I plugged it back in and gave it a minute or two to charge up before trying to power it up again. I used the time to get undressed and throw my clothes in the trash -- I never wanted to see them again -- and put on a clean pair of boxers and a fresh t-shirt. The fresh-laundered clothes, straight out of my drawers, felt so familiar and comfortable, like getting hugged by my parents. + +I powered up my laptop and punched a bunch of pillows into place behind me at the top of the bed. I scooched back and opened my computer's lid and settled it onto my thighs. It was still booting, and man, those icons creeping across the screen looked /{good}/. It came all the way up and then it started giving me more low-power warnings. I checked the power-cable again and wiggled it and they went away. The power-jack was really flaking out. + +In fact, it was so bad that I couldn't actually get anything done. Every time I took my hand off the power-cable it lost contact and the computer started to complain about its battery. I took a closer look at it. + +The whole case of my computer was slightly misaligned, the seam split in an angular gape that started narrow and widened toward the back. + +Sometimes you look at a piece of equipment and discover something like this and you wonder, "Was it always like that?" Maybe you just never noticed. + +But with my laptop, that wasn't possible. You see, I built it. After the Board of Ed issued us all with SchoolBooks, there was no way my parents were going to buy me a computer of my own, even though technically the SchoolBook didn't belong to me, and I wasn't supposed to install software on it or mod it. + +I had some money saved -- odd jobs, Christmases and birthdays, a little bit of judicious ebaying. Put it all together and I had enough money to buy a totally crappy, five-year-old machine. + +So Darryl and I built one instead. You can buy laptop cases just like you can buy cases for desktop PCs, though they're a little more specialized than plain old PCs. I'd built a couple PCs with Darryl over the years, scavenging parts from Craigslist and garage sales and ordering stuff from cheap cheap Taiwanese vendors we found on the net. I figured that building a laptop would be the best way to get the power I wanted at the price I could afford. + +To build your own laptop, you start by ordering a "barebook" -- a machine with just a little hardware in it and all the right slots. The good news was, once I was done, I had a machine that was a whole pound lighter than the Dell I'd had my eye on, ran faster, and cost a third of what I would have paid Dell. The bad news was that assembling a laptop is like building one of those ships in a bottle. It's all finicky work with tweezers and magnifying glasses, trying to get everything to fit in that little case. Unlike a full-sized PC -- which is mostly air -- every cubic millimeter of space in a laptop is spoken for. Every time I thought I had it, I'd go to screw the thing back together and find that something was keeping the case from closing all the way, and it'd be back to the drawing board. + +So I knew /{exactly}/ how the seam on my laptop was supposed to look when the thing was closed, and it was /{not}/ supposed to look like this. + +I kept jiggling the power-adapter, but it was hopeless. There was no way I was going to get the thing to boot without taking it apart. I groaned and put it beside the bed. I'd deal with it in the morning. + +# + +That was the theory, anyway. Two hours later, I was still staring at the ceiling, playing back movies in my head of what they'd done to me, what I should have done, all regrets and /{esprit d'escalier.}/ + +I rolled out of bed. It had gone midnight and I'd heard my parents hit the sack at eleven. I grabbed the laptop and cleared some space on my desk and clipped the little LED lamps to the temples of my magnifying glasses and pulled out a set of little precision screwdrivers. A minute later, I had the case open and the keyboard removed and I was staring at the guts of my laptop. I got a can of compressed air and blew out the dust that the fan had sucked in and looked things over. + +Something wasn't right. I couldn't put my finger on it, but then it had been months since I'd had the lid off this thing. Luckily, the third time I'd had to open it up and struggle to close it again, I'd gotten smart: I'd taken a photo of the guts with everything in place. I hadn't been totally smart: at first, I'd just left that pic on my hard drive, and naturally I couldn't get to it when I had the laptop in parts. But then I'd printed it out and stuck it in my messy drawer of papers, the dead-tree graveyard where I kept all the warranty cards and pin-out diagrams. I shuffled them -- they seemed messier than I remembered -- and brought out my photo. I set it down next to the computer and kind of unfocused my eyes, trying to find things that looked out of place. + +Then I spotted it. The ribbon cable that connected the keyboard to the logic-board wasn't connected right. That was a weird one. There was no torque on that part, nothing to dislodge it in the course of normal operations. I tried to press it back down again and discovered that the plug wasn't just badly mounted -- there was something between it and the board. I tweezed it out and shone my light on it. + +There was something new in my keyboard. It was a little chunk of hardware, only a sixteenth of an inch thick, with no markings. The keyboard was plugged into it, and it was plugged into the board. It other words, it was perfectly situated to capture all the keystrokes I made while I typed on my machine. + +It was a bug. + +My heart thudded in my ears. It was dark and quiet in the house, but it wasn't a comforting dark. There were eyes out there, eyes and ears, and they were watching me. Surveilling me. The surveillance I faced at school had followed me home, but this time, it wasn't just the Board of Education looking over my shoulder: the Department of Homeland Security had joined them. + +I almost took the bug out. Then I figured that who ever put it there would know that it was gone. I left it in. It made me sick to do it. + +I looked around for more tampering. I couldn't find any, but did that mean there hadn't been any? Someone had broken into my room and planted this device -- had disassembled my laptop and reassembled it. There were lots of other ways to wiretap a computer. I could never find them all. + +I put the machine together with numb fingers. This time, the case wouldn't snap shut just right, but the power-cable stayed in. I booted it up and set my fingers on the keyboard, thinking that I would run some diagnostics and see what was what. + +But I couldn't do it. + +Hell, maybe my room was wiretapped. Maybe there was a camera spying on me now. + +I'd been feeling paranoid when I got home. Now I was nearly out of my skin. It felt like I was back in jail, back in the interrogation room, stalked by entities who had me utterly in their power. It made me want to cry. + +Only one thing for it. + +I went into the bathroom and took off the toilet-paper roll and replaced it with a fresh one. Luckily, it was almost empty already. I unrolled the rest of the paper and dug through my parts box until I found a little plastic envelope full of ultra-bright white LEDs I'd scavenged out of a dead bike-lamp. I punched their leads through the cardboard tube carefully, using a pin to make the holes, then got out some wire and connected them all in series with little metal clips. I twisted the wires into the leads for a nine-volt battery and connected the battery. Now I had a tube ringed with ultra-bright, directional LEDs, and I could hold it up to my eye and look through it. + +I'd built one of these last year as a science fair project and had been thrown out of the fair once I showed that there were hidden cameras in half the classrooms at Chavez High. Pinhead video-cameras cost less than a good restaurant dinner these days, so they're showing up everywhere. Sneaky store clerks put them in changing rooms or tanning salons and get pervy with the hidden footage they get from their customers -- sometimes they just put it on the net. Knowing how to turn a toilet-paper roll and three bucks' worth of parts into a camera-detector is just good sense. + +This is the simplest way to catch a spy-cam. They have tiny lenses, but they reflect light like the dickens. It works best in a dim room: stare through the tube and slowly scan all the walls and other places someone might have put a camera until you see the glint of a reflection. If the reflection stays still as you move around, that's a lens. + +There wasn't a camera in my room -- not one I could detect, anyway. There might have been audio bugs, of course. Or better cameras. Or nothing at all. Can you blame me for feeling paranoid? + +I loved that laptop. I called it the Salmagundi, which means anything made out of spare parts. + +Once you get to naming your laptop, you know that you're really having a deep relationship with it. Now, though, I felt like I didn't want to ever touch it again. I wanted to throw it out the window. Who knew what they'd done to it? Who knew how it had been tapped? + +I put it in a drawer with the lid shut and looked at the ceiling. It was late and I should be in bed. There was no way I was going to sleep now, though. I was tapped. Everyone might be tapped. The world had changed forever. + +"I'll find a way to get them," I said. It was a vow, I knew it when I heard it, though I'd never made a vow before. + +I couldn't sleep after that. And besides, I had an idea. + +Somewhere in my closet was a shrink-wrapped box containing one still-sealed, mint-in-package Xbox Universal. Every Xbox has been sold way below cost -- Microsoft makes most of its money charging games companies money for the right to put out Xbox games -- but the Universal was the first Xbox that Microsoft decided to give away entirely for free. + +Last Christmas season, there'd been poor losers on every corner dressed as warriors from the Halo series, handing out bags of these game-machines as fast as they could. I guess it worked -- everyone says they sold a whole butt-load of games. Naturally, there were countermeasures to make sure you only played games from companies that had bought licenses from Microsoft to make them. + +Hackers blow through those countermeasures. The Xbox was cracked by a kid from MIT who wrote a best-selling book about it, and then the 360 went down, and then the short-lived Xbox Portable (which we all called the "luggable" -- it weighed three pounds!) succumbed. The Universal was supposed to be totally bulletproof. The high school kids who broke it were Brazilian Linux hackers who lived in a /{favela}/ -- a kind of squatter's slum. + +Never underestimate the determination of a kid who is time-rich and cash-poor. + +Once the Brazilians published their crack, we all went nuts on it. Soon there were dozens of alternate operating systems for the Xbox Universal. My favorite was ParanoidXbox, a flavor of Paranoid Linux. Paranoid Linux is an operating system that assumes that its operator is under assault from the government (it was intended for use by Chinese and Syrian dissidents), and it does everything it can to keep your communications and documents a secret. It even throws up a bunch of "chaff" communications that are supposed to disguise the fact that you're doing anything covert. So while you're receiving a political message one character at a time, ParanoidLinux is pretending to surf the Web and fill in questionnaires and flirt in chat-rooms. Meanwhile, one in every five hundred characters you receive is your real message, a needle buried in a huge haystack. + +I'd burned a ParanoidXbox DVD when they first appeared, but I'd never gotten around to unpacking the Xbox in my closet, finding a TV to hook it up to and so on. My room is crowded enough as it is without letting Microsoft crashware eat up valuable workspace. + +Tonight, I'd make the sacrifice. It took about twenty minutes to get up and running. Not having a TV was the hardest part, but eventually I remembered that I had a little overhead LCD projector that had standard TV RCA connectors on the back. I connected it to the Xbox and shone it on the back of my door and got ParanoidLinux installed. + +Now I was up and running, and ParanoidLinux was looking for other Xbox Universals to talk to. Every Xbox Universal comes with built-in wireless for multiplayer gaming. You can connect to your neighbors on the wireless link and to the Internet, if you have a wireless Internet connection. I found three different sets of neighbors in range. Two of them had their Xbox Universals also connected to the Internet. ParanoidXbox loved that configuration: it could siphon off some of my neighbors' Internet connections and use them to get online through the gaming network. The neighbors would never miss the packets: they were paying for flat-rate Internet connections, and they weren't exactly doing a lot of surfing at 2AM. + +The best part of all this is how it made me /{feel}/: in control. My technology was working for me, serving me, protecting me. It wasn't spying on me. This is why I loved technology: if you used it right, it could give you power and privacy. + +My brain was really going now, running like 60. There were lots of reasons to run ParanoidXbox -- the best one was that anyone could write games for it. Already there was a port of MAME, the Multiple Arcade Machine Emulator, so you could play practically any game that had ever been written, all the way back to Pong -- games for the Apple ][+ and games for the Colecovision, games for the NES and the Dreamcast, and so on. + +Even better were all the cool multiplayer games being built specifically for ParanoidXbox -- totally free hobbyist games that anyone could run. When you combined it all, you had a free console full of free games that could get you free Internet access. + +And the best part -- as far as I was concerned -- was that ParanoidXbox was /{paranoid}/. Every bit that went over the air was scrambled to within an inch of its life. You could wiretap it all you wanted, but you'd never figure out who was talking, what they were talking about, or who they were talking to. Anonymous web, email and IM. Just what I needed. + +All I had to do now was convince everyone I knew to use it too. + +1~ Chapter 6 + +_1 /{ [This chapter is dedicated to Powell's Books,~{ Powell's Books: http://www.powells.com/cgi-bin/biblio?isbn=9780765319852 1005 W Burnside, Portland, OR 97209 USA +1 800 878 7323 }~ the legendary "City of Books" in Portland, Oregon. Powell's is the largest bookstore in the world, an endless, multi-storey universe of papery smells and towering shelves. They stock new and used books on the same shelves -- something I've always loved -- and every time I've stopped in, they've had a veritable mountain of my books, and they've been incredibly gracious about asking me to sign the store-stock. The clerks are friendly, the stock is fabulous, and there's even a Powell's at the Portland airport, making it just about the best airport bookstore in the world for my money! }/ + +Believe it or not, my parents made me go to school the next day. I'd only fallen into feverish sleep at three in the morning, but at seven the next day, my Dad was standing at the foot of my bed, threatening to drag me out by the ankles. I managed to get up -- something had died in my mouth after painting my eyelids shut -- and into the shower. + +I let my mom force a piece of toast and a banana into me, wishing fervently that my parents would let me drink coffee at home. I could sneak one on the way to school, but watching them sip down their black gold while I was drag-assing around the house, getting dressed and putting my books in my bag -- it was awful. + +I've walked to school a thousand times, but today it was different. I went up and over the hills to get down into the Mission, and everywhere there were trucks. I saw new sensors and traffic cameras installed at many of the stop-signs. Someone had a lot of surveillance gear lying around, waiting to be installed at the first opportunity. The attack on the Bay Bridge had been just what they needed. + +It all made the city seem more subdued, like being inside an elevator, embarrassed by the close scrutiny of your neighbors and the ubiquitous cameras. + +The Turkish coffee shop on 24th Street fixed me up good with a go-cup of Turkish coffee. Basically, Turkish coffee is mud, pretending to be coffee. It's thick enough to stand a spoon up in, and it has way more caffeine than the kiddee-pops like Red Bull. Take it from someone who's read the Wikipedia entry: this is how the Ottoman Empire was won: maddened horsemen fueled by lethal jet-black coffee-mud. + +I pulled out my debit card to pay and he made a face. "No more debit," he said. + +"Huh? Why not?" I'd paid for my coffee habit on my card for years at the Turk's. He used to hassle me all the time, telling me I was too young to drink the stuff, and he still refused to serve me at all during school hours, convinced that I was skipping class. But over the years, the Turk and me have developed a kind of gruff understanding. + +He shook his head sadly. "You wouldn't understand. Go to school, kid." + +There's no surer way to make me want to understand than to tell me I won't. I wheedled him, demanding that he tell me. He looked like he was going to throw me out, but when I asked him if he thought I wasn't good enough to shop there, he opened up. + +"The security," he said, looking around his little shop with its tubs of dried beans and seeds, its shelves of Turkish groceries. "The government. They monitor it all now, it was in the papers. PATRIOT Act II, the Congress passed it yesterday. Now they can monitor every time you use your card. I say no. I say my shop will not help them spy on my customers." + +My jaw dropped. + +"You think it's no big deal maybe? What is the problem with government knowing when you buy coffee? Because it's one way they know where you are, where you been. Why you think I left Turkey? Where you have government always spying on the people, is no good. I move here twenty years ago for freedom -- I no help them take freedom away." + +"You're going to lose so many sales," I blurted. I wanted to tell him he was a hero and shake his hand, but that was what came out. "Everyone uses debit cards." + +"Maybe not so much anymore. Maybe my customers come here because they know I love freedom too. I am making sign for window. Maybe other stores do the same. I hear the ACLU will sue them for this." + +"You've got all my business from now on," I said. I meant it. I reached into my pocket. "Um, I don't have any cash, though." + +He pursed his lips and nodded. "Many peoples say the same thing. Is OK. You give today's money to the ACLU." + +In two minutes, the Turk and I had exchanged more words than we had in all the time I'd been coming to his shop. I had no idea he had all these passions. I just thought of him as my friendly neighborhood caffeine dealer. Now I shook his hand and when I left his store, I felt like he and I had joined a team. A secret team. + +# + +I'd missed two days of school but it seemed like I hadn't missed much class. They'd shut the school on one of those days while the city scrambled to recover. The next day had been devoted, it seemed, to mourning those missing and presumed dead. The newspapers published biographies of the lost, personal memorials. The Web was filled with these capsule obituaries, thousands of them. + +Embarrassingly, I was one of those people. I stepped into the schoolyard, not knowing this, and then there was a shout and a moment later there were a hundred people around me, pounding me on the back, shaking my hand. A couple girls I didn't even know kissed me, and they were more than friendly kisses. I felt like a rock star. + +My teachers were only a little more subdued. Ms Galvez cried as much as my mother had and hugged me three times before she let me go to my desk and sit down. There was something new at the front of the classroom. A camera. Ms Galvez caught me staring at it and handed me a permission slip on smeary Xeroxed school letterhead. + +The Board of the San Francisco Unified School District had held an emergency session over the weekend and unanimously voted to ask the parents of every kid in the city for permission to put closed circuit television cameras in every classroom and corridor. The law said they couldn't force us to go to school with cameras all over the place, but it didn't say anything about us /{volunteering}/ to give up our Constitutional rights. The letter said that the Board were sure that they would get complete compliance from the City's parents, but that they would make arrangements to teach those kids' whose parents objected in a separate set of "unprotected" classrooms. + +Why did we have cameras in our classrooms now? Terrorists. Of course. Because by blowing up a bridge, terrorists had indicated that schools were next. Somehow that was the conclusion that the Board had reached anyway. + +I read this note three times and then I stuck my hand up. + +"Yes, Marcus?" + +"Ms Galvez, about this note?" + +"Yes, Marcus." + +"Isn't the point of terrorism to make us afraid? That's why it's called /{terror}/ism, right?" + +"I suppose so." The class was staring at me. I wasn't the best student in school, but I did like a good in-class debate. They were waiting to hear what I'd say next. + +"So aren't we doing what the terrorists want from us? Don't they win if we act all afraid and put cameras in the classrooms and all of that?" + +There was some nervous tittering. One of the others put his hand up. It was Charles. Ms Galvez called on him. + +"Putting cameras in makes us safe, which makes us less afraid." + +"Safe from what?" I said, without waiting to be called on. + +"Terrorism," Charles said. The others were nodding their heads. + +"How do they do that? If a suicide bomber rushed in here and blew us all up --" + +"Ms Galvez, Marcus is violating school policy. We're not supposed to make jokes about terrorist attacks --" + +"Who's making jokes?" + +"Thank you, both of you," Ms Galvez said. She looked really unhappy. I felt kind of bad for hijacking her class. "I think that this is a really interesting discussion, but I'd like to hold it over for a future class. I think that these issues may be too emotional for us to have a discussion about them today. Now, let's get back to the suffragists, shall we?" + +So we spent the rest of the hour talking about suffragists and the new lobbying strategies they'd devised for getting four women into every congresscritter's office to lean on him and let him know what it would mean for his political future if he kept on denying women the vote. It was normally the kind of thing I really liked -- little guys making the big and powerful be honest. But today I couldn't concentrate. It must have been Darryl's absence. We both liked Social Studies and we would have had our SchoolBooks out and an IM session up seconds after sitting down, a back-channel for talking about the lesson. + +I'd burned twenty ParanoidXbox discs the night before and I had them all in my bag. I handed them out to people I knew were really, really into gaming. They'd all gotten an Xbox Universal or two the year before, but most of them had stopped using them. The games were really expensive and not a lot of fun. I took them aside between periods, at lunch and study hall, and sang the praises of the ParanoidXbox games to the sky. Free and fun -- addictive social games with lots of cool people playing them from all over the world. + +Giving away one thing to sell another is what they call a "razor blade business" -- companies like Gillette give you free razor-blade handles and then stiff you by charging you a small fortune for the blades. Printer cartridges are the worst for that -- the most expensive Champagne in the world is cheap when compared with inkjet ink, which costs all of a penny a gallon to make wholesale. + +Razor-blade businesses depend on you not being able to get the "blades" from someone else. After all, if Gillette can make nine bucks on a ten-dollar replacement blade, why not start a competitor that makes only four bucks selling an identical blade: an 80 percent profit margin is the kind of thing that makes your average business-guy go all drooly and round-eyed. + +So razor-blade companies like Microsoft pour a lot of effort into making it hard and/or illegal to compete with them on the blades. In Microsoft's case, every Xbox has had countermeasures to keep you from running software that was released by people who didn't pay the Microsoft blood-money for the right to sell Xbox programs. + +The people I met didn't think much about this stuff. They perked up when I told them that the games were unmonitored. These days, any online game you play is filled with all kinds of unsavory sorts. First there are the pervs who try to get you to come out to some remote location so they can go all weird and Silence of the Lambs on you. Then there are the cops, who are pretending to be gullible kids so they can bust the pervs. Worst of all, though, are the monitors who spend all their time spying on our discussions and snitching on us for violating their Terms of Service, which say, no flirting, no cussing, and no "clear or masked language which insultingly refers to any aspect of sexual orientation or sexuality." + +I'm no 24/7 horn-dog, but I'm a seventeen year old boy. Sex does come up in conversation every now and again. But God help you if it came up in chat while you were gaming. It was a real buzz-kill. No one monitored the ParanoidXbox games, because they weren't run by a company: they were just games that hackers had written for the hell of it. + +So these game-kids loved the story. They took the discs greedily, and promised to burn copies for all of their friends -- after all, games are most fun when you're playing them with your buddies. + +When I got home, I read that a group of parents were suing the school board over the surveillance cameras in the classrooms, but that they'd already lost their bid to get a preliminary injunction against them. + +# + +I don't know who came up with the name Xnet, but it stuck. You'd hear people talking about it on the Muni. Van called me up to ask me if I'd heard of it and I nearly choked once I figured out what she was talking about: the discs I'd started distributing last week had been sneakernetted and copied all the way to Oakland in the space of two weeks. It made me look over my shoulder -- like I'd broken a rule and now the DHS would come and take me away forever. + +They'd been hard weeks. The BART had completely abandoned cash fares now, switching them for arphid "contactless" cards that you waved at the turnstiles to go through. They were cool and convenient, but every time I used one, I thought about how I was being tracked. Someone on Xnet posted a link to an Electronic Frontier Foundation white paper on the ways that these things could be used to track people, and the paper had tiny stories about little groups of people that had protested at the BART stations. + +I used the Xnet for almost everything now. I'd set up a fake email address through the Pirate Party, a Swedish political party that hated Internet surveillance and promised to keep their mail accounts a secret from everyone, even the cops. I accessed it strictly via Xnet, hopping from one neighbor's Internet connection to the next, staying anonymous -- I hoped -- all the way to Sweden. I wasn't using w1n5ton anymore. If Benson could figure it out, anyone could. My new handle, come up with on the spur of the moment, was M1k3y, and I got a /{lot}/ of email from people who heard in chat rooms and message boards that I could help them troubleshoot their Xnet configurations and connections. + +I missed Harajuku Fun Madness. The company had suspended the game indefinitely. They said that for "security reasons" they didn't think it would be a good idea to hide things and then send people off to find them. What if someone thought it was a bomb? What if someone put a bomb in the same spot? + +What if I got hit by lightning while walking with an umbrella? Ban umbrellas! Fight the menace of lightning! + +I kept on using my laptop, though I got a skin-crawly feeling when I used it. Whoever had wiretapped it would wonder why I didn't use it. I figured I'd just do some random surfing with it every day, a little less each day, so that anyone watching would see me slowly changing my habits, not doing a sudden reversal. Mostly I read those creepy obits -- all those thousands of my friends and neighbors dead at the bottom of the Bay. + +Truth be told, I /{was}/ doing less and less homework every day. I had business elsewhere. I burned new stacks of ParanoidXbox every day, fifty or sixty, and took them around the city to people I'd heard were willing to burn sixty of their own and hand them out to their friends. + +I wasn't too worried about getting caught doing this, because I had good crypto on my side. Crypto is cryptography, or "secret writing," and it's been around since Roman times (literally: Augustus Caesar was a big fan and liked to invent his own codes, some of which we use today for scrambling joke punchlines in email). + +Crypto is math. Hard math. I'm not going to try to explain it in detail because I don't have the math to really get my head around it, either -- look it up on Wikipedia if you really want. + +But here's the Cliff's Notes version: Some kinds of mathematical functions are really easy to do in one direction and really hard to do in the other direction. It's easy to multiply two big prime numbers together and make a giant number. It's really, really hard to take any given giant number and figure out which primes multiply together to give you that number. + +That means that if you can come up with a way of scrambling something based on multiplying large primes, unscrambling it without knowing those primes will be hard. Wicked hard. Like, a trillion years of all the computers ever invented working 24/7 won't be able to do it. + +There are four parts to any crypto message: the original message, called the "cleartext." The scrambled message, called the "ciphertext." The scrambling system, called the "cipher." And finally there's the key: secret stuff you feed into the cipher along with the cleartext to make ciphertext. + +It used to be that crypto people tried to keep all of this a secret. Every agency and government had its own ciphers /{and}/ its own keys. The Nazis and the Allies didn't want the other guys to know how they scrambled their messages, let alone the keys that they could use to descramble them. That sounds like a good idea, right? + +Wrong. + +The first time anyone told me about all this prime factoring stuff, I immediately said, "No way, that's BS. I mean, /{sure}/ it's hard to do this prime factorization stuff, whatever you say it is. But it used to be impossible to fly or go to the moon or get a hard-drive with more than a few kilobytes of storage. Someone /{must}/ have invented a way of descrambling the messages." I had visions of a hollow mountain full of National Security Agency mathematicians reading every email in the world and snickering. + +In fact, that's pretty much what happened during World War II. That's the reason that life isn't more like Castle Wolfenstein, where I've spent many days hunting Nazis. + +The thing is, ciphers are hard to keep secret. There's a lot of math that goes into one, and if they're widely used, then everyone who uses them has to keep them a secret too, and if someone changes sides, you have to find a new cipher. + +The Nazi cipher was called Enigma, and they used a little mechanical computer called an Enigma Machine to scramble and unscramble the messages they got. Every sub and boat and station needed one of these, so it was inevitable that eventually the Allies would get their hands on one. + +When they did, they cracked it. That work was led by my personal all-time hero, a guy named Alan Turing, who pretty much invented computers as we know them today. Unfortunately for him, he was gay, so after the war ended, the stupid British government forced him to get shot up with hormones to "cure" his homosexuality and he killed himself. Darryl gave me a biography of Turing for my 14th birthday -- wrapped in twenty layers of paper and in a recycled Batmobile toy, he was like that with presents -- and I've been a Turing junkie ever since. + +Now the Allies had the Enigma Machine, and they could intercept lots of Nazi radio-messages, which shouldn't have been that big a deal, since every captain had his own secret key. Since the Allies didn't have the keys, having the machine shouldn't have helped. + +Here's where secrecy hurts crypto. The Enigma cipher was flawed. Once Turing looked hard at it, he figured out that the Nazi cryptographers had made a mathematical mistake. By getting his hands on an Enigma Machine, Turing could figure out how to crack /{any}/ Nazi message, no matter what key it used. + +That cost the Nazis the war. I mean, don't get me wrong. That's good news. Take it from a Castle Wolfenstein veteran. You wouldn't want the Nazis running the country. + +After the war, cryptographers spent a lot of time thinking about this. The problem had been that Turing was smarter than the guy who thought up Enigma. Any time you had a cipher, you were vulnerable to someone smarter than you coming up with a way of breaking it. + +And the more they thought about it, the more they realized that /{anyone}/ can come up with a security system that he can't figure out how to break. But /{no one}/ can figure out what a smarter person might do. + +You have to publish a cipher to know that it works. You have to tell /{as many people as possible}/ how it works, so that they can thwack on it with everything they have, testing its security. The longer you go without anyone finding a flaw, the more secure you are. + +Which is how it stands today. If you want to be safe, you don't use crypto that some genius thought of last week. You use the stuff that people have been using for as long as possible without anyone figuring out how to break them. Whether you're a bank, a terrorist, a government or a teenager, you use the same ciphers. + +If you tried to use your own cipher, there'd be the chance that someone out there had found a flaw you missed and was doing a Turing on your butt, deciphering all your "secret" messages and chuckling at your dumb gossip, financial transactions and military secrets. + +So I knew that crypto would keep me safe from eavesdroppers, but I wasn't ready to deal with histograms. + +# + +I got off the BART and waved my card over the turnstile as I headed up to the 24th Street station. As usual, there were lots of weirdos hanging out in the station, drunks and Jesus freaks and intense Mexican men staring at the ground and a few gang kids. I looked straight past them as I hit the stairs and jogged up to the surface. My bag was empty now, no longer bulging with the ParanoidXbox discs I'd been distributing, and it made my shoulders feel light and put a spring in my step as I came up the street. The preachers were at work still, exhorting in Spanish and English about Jesus and so on. + +The counterfeit sunglass sellers were gone, but they'd been replaced by guys selling robot dogs that barked the national anthem and would lift their legs if you showed them a picture of Osama bin Laden. There was probably some cool stuff going on in their little brains and I made a mental note to pick a couple of them up and take them apart later. Face-recognition was pretty new in toys, having only recently made the leap from the military to casinos trying to find cheats, to law enforcement. + +I started down 24th Street toward Potrero Hill and home, rolling my shoulders and smelling the burrito smells wafting out of the restaurants and thinking about dinner. + +I don't know why I happened to glance back over my shoulder, but I did. Maybe it was a little bit of subconscious sixth-sense stuff. I knew I was being followed. + +They were two beefy white guys with little mustaches that made me think of either cops or the gay bikers who rode up and down the Castro, but gay guys usually had better haircuts. They had on windbreakers the color of old cement and blue-jeans, with their waistbands concealed. I thought of all the things a cop might wear on his waistband, of the utility-belt that DHS guy in the truck had worn. Both guys were wearing Bluetooth headsets. + +I kept walking, my heart thumping in my chest. I'd been expecting this since I started. I'd been expecting the DHS to figure out what I was doing. I took every precaution, but Severe-Haircut woman had told me that she'd be watching me. She'd told me I was a marked man. I realized that I'd been waiting to get picked up and taken back to jail. Why not? Why should Darryl be in jail and not me? What did I have going for me? I hadn't even had the guts to tell my parents -- or his -- what had really happened to us. + +I quickened my steps and took a mental inventory. I didn't have anything incriminating in my bag. Not too incriminating, anyway. My SchoolBook was running the crack that let me IM and stuff, but half the people in school had that. I'd changed the way I encrypted the stuff on my phone -- now I /{did}/ have a fake partition that I could turn back into cleartext with one password, but all the good stuff was hidden, and needed another password to open up. That hidden section looked just like random junk -- when you encrypt data, it becomes indistinguishable from random noise -- and they'd never even know it was there. + +There were no discs in my bag. My laptop was free of incriminating evidence. Of course, if they thought to look hard at my Xbox, it was game over. So to speak. + +I stopped where I was standing. I'd done as good a job as I could of covering myself. It was time to face my fate. I stepped into the nearest burrito joint and ordered one with carnitas -- shredded pork -- and extra salsa. Might as well go down with a full stomach. I got a bucket of horchata, too, an ice-cold rice drink that's like watery, semi-sweet rice-pudding (better than it sounds). + +I sat down to eat, and a profound calm fell over me. I was about to go to jail for my "crimes," or I wasn't. My freedom since they'd taken me in had been just a temporary holiday. My country was not my friend anymore: we were now on different sides and I'd known I could never win. + +The two guys came into the restaurant as I was finishing the burrito and going up to order some churros -- deep-fried dough with cinnamon sugar -- for dessert. I guess they'd been waiting outside and got tired of my dawdling. + +They stood behind me at the counter, boxing me in. I took my churro from the pretty granny and paid her, taking a couple of quick bites of the dough before I turned around. I wanted to eat at least a little of my dessert. It might be the last dessert I got for a long, long time. + +Then I turned around. They were both so close I could see the zit on the cheek of the one on the left, the little booger up the nose of the other. + +"'Scuse me," I said, trying to push past them. The one with the booger moved to block me. + +"Sir," he said, "can you step over here with us?" He gestured toward the restaurant's door. + +"Sorry, I'm eating," I said and moved again. This time he put his hand on my chest. He was breathing fast through his nose, making the booger wiggle. I think I was breathing hard too, but it was hard to tell over the hammering of my heart. + +The other one flipped down a flap on the front of his windbreaker to reveal a SFPD insignia. "Police," he said. "Please come with us." + +"Let me just get my stuff," I said. + +"We'll take care of that," he said. The booger one stepped right up close to me, his foot on the inside of mine. You do that in some martial arts, too. It lets you feel if the other guy is shifting his weight, getting ready to move. + +I wasn't going to run, though. I knew I couldn't outrun fate. + +1~ Chapter 7 + +_1 /{ [This chapter is dedicated to New York City's Books of Wonder,~{ Books of Wonder http://www.booksofwonder.com/ 18 West 18th St, New York, NY 10011 USA +1 212 989 3270 }~ the oldest and largest kids' bookstore in Manhattan. They're located just a few blocks away from Tor Books' offices in the Flatiron Building and every time I drop in to meet with the Tor people, I always sneak away to Books of Wonder to peruse their stock of new, used and rare kids' books. I'm a heavy collector of rare editions of Alice in Wonderland, and Books of Wonder never fails to excite me with some beautiful, limited-edition Alice. They have tons of events for kids and one of the most inviting atmospheres I've ever experienced at a bookstore.] }/ + +They took me outside and around the corner, to a waiting unmarked police car. It wasn't like anyone in that neighborhood would have had a hard time figuring out that it was a cop-car, though. Only police drive big Crown Victorias now that gas had hit seven bucks a gallon. What's more, only cops could double-park in the middle of Van Ness street without getting towed by the schools of predatory tow-operators that circled endlessly, ready to enforce San Francisco's incomprehensible parking regulations and collect a bounty for kidnapping your car. + +Booger blew his nose. I was sitting in the back seat, and so was he. His partner was sitting in the front, typing with one finger on an ancient, ruggedized laptop that looked like Fred Flintstone had been its original owner. + +Booger looked closely at my ID again. "We just want to ask you a few routine questions." + +"Can I see your badges?" I said. These guys were clearly cops, but it couldn't hurt to let them know I knew my rights. + +Booger flashed his badge at me too fast for me to get a good look at it, but Zit in the front seat gave me a long look at his. I got their division number and memorized the four-digit badge number. It was easy: 1337 is also the way hackers write "leet," or "elite." + +They were both being very polite and neither of them was trying to intimidate me the way that the DHS had done when I was in their custody. + +"Am I under arrest?" + +"You've been momentarily detained so that we can ensure your safety and the general public safety," Booger said. + +He passed my driver's license up to Zit, who pecked it slowly into his computer. I saw him make a typo and almost corrected him, but figured it was better to just keep my mouth shut. + +"Is there anything you want to tell me, Marcus? Do they call you Marc?" + +"Marcus is fine," I said. Booger looked like he might be a nice guy. Except for the part about kidnapping me into his car, of course. + +"Marcus. Anything you want to tell me?" + +"Like what? Am I under arrest?" + +"You're not under arrest right now," Booger said. "Would you like to be?" + +"No," I said. + +"Good. We've been watching you since you left the BART. Your Fast Pass says that you've been riding to a lot of strange places at a lot of funny hours." + +I felt something let go inside my chest. This wasn't about the Xnet at all, then, not really. They'd been watching my subway use and wanted to know why it had been so freaky lately. How totally stupid. + +"So you guys follow everyone who comes out of the BART station with a funny ride-history? You must be busy." + +"Not everyone, Marcus. We get an alert when anyone with an uncommon ride profile comes out and that helps us assess whether we want to investigate. In your case, we came along because we wanted to know why a smart-looking kid like you had such a funny ride profile?" + +Now that I knew I wasn't about to go to jail, I was getting pissed. These guys had no business spying on me -- Christ, the BART had no business /{helping}/ them to spy on me. Where the hell did my subway pass get off on finking me out for having a "nonstandard ride pattern?" + +"I think I'd like to be arrested now," I said. + +Booger sat back and raised his eyebrow at me. + +"Really? On what charge?" + +"Oh, you mean riding public transit in a nonstandard way isn't a crime?" + +Zit closed his eyes and scrubbed them with his thumbs. + +Booger sighed a put-upon sigh. "Look, Marcus, we're on your side here. We use this system to catch bad guys. To catch terrorists and drug dealers. Maybe you're a drug dealer yourself. Pretty good way to get around the city, a Fast Pass. Anonymous." + +"What's wrong with anonymous? It was good enough for Thomas Jefferson. And by the way, am I under arrest?" + +"Let's take him home," Zit said. "We can talk to his parents." + +"I think that's a great idea," I said. "I'm sure my parents will be anxious to hear how their tax dollars are being spent --" + +I'd pushed it too far. Booger had been reaching for the door handle but now he whirled on me, all Hulked out and throbbing veins. "Why don't you shut up right now, while it's still an option? After everything that's happened in the past two weeks, it wouldn't kill you to cooperate with us. You know what, maybe we /{should}/ arrest you. You can spend a day or two in jail while your lawyer looks for you. A lot can happen in that time. A /{lot}/. How'd you like that?" + +I didn't say anything. I'd been giddy and angry. Now I was scared witless. + +"I'm sorry," I managed, hating myself again for saying it. + +Booger got in the front seat and Zit put the car in gear, cruising up 24th Street and over Potrero Hill. They had my address from my ID. + +Mom answered the door after they rang the bell, leaving the chain on. She peeked around it, saw me and said, "Marcus? Who are these men?" + +"Police," Booger said. He showed her his badge, letting her get a good look at it -- not whipping it away the way he had with me. "Can we come in?" + +Mom closed the door and took the chain off and let them in. They brought me in and Mom gave the three of us one of her looks. + +"What's this about?" + +Booger pointed at me. "We wanted to ask your son some routine questions about his movements, but he declined to answer them. We felt it might be best to bring him here." + +"Is he under arrest?" Mom's accent was coming on strong. Good old Mom. + +"Are you a United States citizen, ma'am?" Zit said. + +She gave him a look that could have stripped paint. "I shore am, hyuck," she said, in a broad southern accent. "Am /{I}/ under arrest?" + +The two cops exchanged a look. + +Zit took the fore. "We seem to have gotten off to a bad start. We identified your son as someone with a nonstandard public transit usage pattern, as part of a new pro-active enforcement program. When we spot people whose travels are unusual, or that match a suspicious profile, we investigate further." + +"Wait," Mom said. "How do you know how my son uses the Muni?" + +"The Fast Pass," he said. "It tracks voyages." + +"I see," Mom said, folding her arms. Folding her arms was a bad sign. It was bad enough she hadn't offered them a cup of tea -- in Mom-land, that was practically like making them shout through the mail-slot -- but once she folded her arms, it was not going to end well for them. At that moment, I wanted to go and buy her a big bunch of flowers. + +"Marcus here declined to tell us why his movements had been what they were." + +"Are you saying you think my son is a terrorist because of how he rides the bus?" + +"Terrorists aren't the only bad guys we catch this way," Zit said. "Drug dealers. Gang kids. Even shoplifters smart enough to hit a different neighborhood with every run." + +"You think my son is a drug dealer?" + +"We're not saying that --" Zit began. Mom clapped her hands at him to shut him up. + +"Marcus, please pass me your backpack." + +I did. + +Mom unzipped it and looked through it, turning her back to us first. + +"Officers, I can now affirm that there are no narcotics, explosives, or shoplifted gewgaws in my son's bag. I think we're done here. I would like your badge numbers before you go, please." + +Booger sneered at her. "Lady, the ACLU is suing three hundred cops on the SFPD, you're going to have to get in line." + +# + +Mom made me a cup of tea and then chewed me out for eating dinner when I knew that she'd been making falafel. Dad came home while we were still at the table and Mom and I took turns telling him the story. He shook his head. + +"Lillian, they were just doing their jobs." He was still wearing the blue blazer and khakis he wore on the days that he was consulting in Silicon Valley. "The world isn't the same place it was last week." + +Mom set down her teacup. "Drew, you're being ridiculous. Your son is not a terrorist. His use of the public transit system is not cause for a police investigation." + +Dad took off his blazer. "We do this all the time at my work. It's how computers can be used to find all kinds of errors, anomalies and outcomes. You ask the computer to create a profile of an average record in a database and then ask it to find out which records in the database are furthest away from average. It's part of something called Bayesian analysis and it's been around for centuries now. Without it, we couldn't do spam-filtering --" + +"So you're saying that you think the police should suck as hard as my spam filter?" I said. + +Dad never got angry at me for arguing with him, but tonight I could see the strain was running high in him. Still, I couldn't resist. My own father, taking the police's side! + +"I'm saying that it's perfectly reasonable for the police to conduct their investigations by starting with data-mining, and then following it up with leg-work where a human being actually intervenes to see why the abnormality exists. I don't think that a computer should be telling the police whom to arrest, just helping them sort through the haystack to find a needle." + +"But by taking in all that data from the transit system, they're /{creating the haystack}/," I said. "That's a gigantic mountain of data and there's almost nothing worth looking at there, from the police's point of view. It's a total waste." + +"I understand that you don't like that this system caused you some inconvenience, Marcus. But you of all people should appreciate the gravity of the situation. There was no harm done, was there? They even gave you a ride home." + +/{They threatened to send me to jail,}/ I thought, but I could see there was no point in saying it. + +"Besides, you still haven't told us where the blazing hells you've been to create such an unusual traffic pattern." + +That brought me up short. + +"I thought you relied on my judgment, that you didn't want to spy on me." He'd said this often enough. "Do you really want me to account for every trip I've ever taken?" + +# + +I hooked up my Xbox as soon as I got to my room. I'd bolted the projector to the ceiling so that it could shine on the wall over my bed (I'd had to take down my awesome mural of punk rock handbills I'd taken down off telephone poles and glued to big sheets of white paper). + +I powered up the Xbox and watched as it came onto the screen. I was going to email Van and Jolu to tell them about the hassles with the cops, but as I put my fingers to the keyboard, I stopped again. + +A feeling crept over me, one not unlike the feeling I'd had when I realized that they'd turned poor old Salmagundi into a traitor. This time, it was the feeling that my beloved Xnet might be broadcasting the location of every one of its users to the DHS. + +It was what Dad had said: /{You ask the computer to create a profile of an average record in a database and then ask it to find out which records in the database are furthest away from average.}/ + +The Xnet was secure because its users weren't directly connected to the Internet. They hopped from Xbox to Xbox until they found one that was connected to the Internet, then they injected their material as undecipherable, encrypted data. No one could tell which of the Internet's packets were Xnet and which ones were just plain old banking and e-commerce and other encrypted communication. You couldn't find out who was tying the Xnet, let alone who was using the Xnet. + +But what about Dad's "Bayesian statistics?" I'd played with Bayesian math before. Darryl and I once tried to write our own better spam filter and when you filter spam, you need Bayesian math. Thomas Bayes was an 18th century British mathematician that no one cared about until a couple hundred years after he died, when computer scientists realized that his technique for statistically analyzing mountains of data would be super-useful for the modern world's info-Himalayas. + +Here's some of how Bayesian stats work. Say you've got a bunch of spam. You take every word that's in the spam and count how many times it appears. This is called a "word frequency histogram" and it tells you what the probability is that any bag of words is likely to be spam. Now, take a ton of email that's not spam -- in the biz, they call that "ham" -- and do the same. + +Wait until a new email arrives and count the words that appear in it. Then use the word-frequency histogram in the candidate message to calculate the probability that it belongs in the "spam" pile or the "ham" pile. If it turns out to be spam, you adjust the "spam" histogram accordingly. There are lots of ways to refine the technique -- looking at words in pairs, throwing away old data -- but this is how it works at core. It's one of those great, simple ideas that seems obvious after you hear about it. + +It's got lots of applications -- you can ask a computer to count the lines in a picture and see if it's more like a "dog" line-frequency histogram or a "cat" line-frequency histogram. It can find porn, bank fraud, and flamewars. Useful stuff. + +And it was bad news for the Xnet. Say you had the whole Internet wiretapped -- which, of course, the DHS has. You can't tell who's passing Xnet packets by looking at the contents of those packets, thanks to crypto. + +What you /{can}/ do is find out who is sending way, way more encrypted traffic out than everyone else. For a normal Internet surfer, a session online is probably about 95 percent cleartext, five percent ciphertext. If someone is sending out 95 percent ciphertext, maybe you could dispatch the computer-savvy equivalents of Booger and Zit to ask them if they're terrorist drug-dealer Xnet users. + +This happens all the time in China. Some smart dissident will get the idea of getting around the Great Firewall of China, which is used to censor the whole country's Internet connection, by using an encrypted connection to a computer in some other country. Now, the Party there can't tell what the dissident is surfing: maybe it's porn, or bomb-making instructions, or dirty letters from his girlfriend in the Philippines, or political material, or good news about Scientology. They don't have to know. All they have to know is that this guy gets way more encrypted traffic than his neighbors. At that point, they send him to a forced labor camp just to set an example so that everyone can see what happens to smart-asses. + +So far, I was willing to bet that the Xnet was under the DHS's radar, but it wouldn't be the case forever. And after tonight, I wasn't sure that I was in any better shape than a Chinese dissident. I was putting all the people who signed onto the Xnet in jeopardy. The law didn't care if you were actually doing anything bad; they were willing to put you under the microscope just for being statistically abnormal. And I couldn't even stop it -- now that the Xnet was running, it had a life of its own. + +I was going to have to fix it some other way. + +I wished I could talk to Jolu about this. He worked at an Internet Service Provider called Pigspleen Net that had hired him when he was twelve, and he knew way more about the net than I did. If anyone knew how to keep our butts out of jail, it would be him. + +Luckily, Van and Jolu and I were planning to meet for coffee the next night at our favorite place in the Mission after school. Officially, it was our weekly Harajuku Fun Madness team meeting, but with the game canceled and Darryl gone, it was pretty much just a weekly weep-fest, supplemented by about six phone-calls and IMs a day that went, "Are you OK? Did it really happen?" It would be good to have something else to talk about. + +# + +"You're out of your mind," Vanessa said. "Are you actually, totally, really, for-real crazy or what?" + +She had shown up in her girl's school uniform because she'd been stuck going the long way home, all the way down to the San Mateo bridge then back up into the city, on a shuttle-bus service that her school was operating. She hated being seen in public in her gear, which was totally Sailor Moon -- a pleated skirt and a tunic and knee-socks. She'd been in a bad mood ever since she turned up at the cafe, which was full of older, cooler, mopey emo art students who snickered into their lattes when she turned up. + +"What do you want me to do, Van?" I said. I was getting exasperated myself. School was unbearable now that the game wasn't on, now that Darryl was missing. All day long, in my classes, I consoled myself with the thought of seeing my team, what was left of it. Now we were fighting. + +"I want you to stop putting yourself at risk, M1k3y." The hairs on the back of my neck stood up. Sure, we always used our team handles at team meetings, but now that my handle was also associated with my Xnet use, it scared me to hear it said aloud in a public place. + +"Don't use that name in public anymore," I snapped. + +Van shook her head. "That's just what I'm talking about. You could end up going to jail for this, Marcus, and not just you. Lots of people. After what happened to Darryl --" + +"I'm doing this for Darryl!" Art students swiveled to look at us and I lowered my voice. "I'm doing this because the alternative is to let them get away with it all." + +"You think you're going to stop them? You're out of your mind. They're the government." + +"It's still our country," I said. "We still have the right to do this." + +Van looked like she was going to cry. She took a couple of deep breaths and stood up. "I can't do it, I'm sorry. I can't watch you do this. It's like watching a car-wreck in slow motion. You're going to destroy yourself, and I love you too much to watch it happen." + +She bent down and gave me a fierce hug and a hard kiss on the cheek that caught the edge of my mouth. "Take care of yourself, Marcus," she said. My mouth burned where her lips had pressed it. She gave Jolu the same treatment, but square on the cheek. Then she left. + +Jolu and I stared at each other after she'd gone. + +I put my face in my hands. "Dammit," I said, finally. + +Jolu patted me on the back and ordered me another latte. "It'll be OK," he said. + +"You'd think Van, of all people, would understand." Half of Van's family lived in North Korea. Her parents never forgot that they had all those people living under a crazy dictator, not able to escape to America, the way her parents had. + +Jolu shrugged. "Maybe that's why she's so freaked out. Because she knows how dangerous it can get." + +I knew what he was talking about. Two of Van's uncles had gone to jail and had never reappeared. + +"Yeah," I said. + +"So how come you weren't on Xnet last night?" + +I was grateful for the distraction. I explained it all to him, the Bayesian stuff and my fear that we couldn't go on using Xnet the way we had been without getting nabbed. He listened thoughtfully. + +"I see what you're saying. The problem is that if there's too much crypto in someone's Internet connection, they'll stand out as unusual. But if you don't encrypt, you'll make it easy for the bad guys to wiretap you." + +"Yeah," I said. "I've been trying to figure it out all day. Maybe we could slow the connection down, spread it out over more peoples' accounts --" + +"Won't work," he said. "To get it slow enough to vanish into the noise, you'd have to basically shut down the network, which isn't an option." + +"You're right," I said. "But what else can we do?" + +"What if we changed the definition of normal?" + +And that was why Jolu got hired to work at Pigspleen when he was 12. Give him a problem with two bad solutions and he'd figure out a third totally different solution based on throwing away all your assumptions. I nodded vigorously. "Go on, tell me." + +"What if the average San Francisco Internet user had a /{lot}/ more crypto in his average day on the Internet? If we could change the split so it's more like fifty-fifty cleartext to ciphertext, then the users that supply the Xnet would just look like normal." + +"But how do we do that? People just don't care enough about their privacy to surf the net through an encrypted link. They don't see why it matters if eavesdroppers know what they're googling for." + +"Yeah, but web-pages are small amounts of traffic. If we got people to routinely download a few giant encrypted files every day, that would create as much ciphertext as thousands of web-pages." + +"You're talking about indienet," I said. + +"You got it," he said. + +indienet -- all lower case, always -- was the thing that made Pigspleen Net into one of the most successful independent ISPs in the world. Back when the major record labels started suing their fans for downloading their music, a lot of the independent labels and their artists were aghast. How can you make money by suing your customers? + +Pigspleen's founder had the answer: she opened up a deal for any act that wanted to work with their fans instead of fighting them. Give Pigspleen a license to distribute your music to its customers and it would give you a share of the subscription fees based on how popular your music was. For an indie artist, the big problem isn't piracy, it's obscurity: no one even cares enough about your tunes to steal 'em. + +It worked. Hundreds of independent acts and labels signed up with Pigspleen, and the more music there was, the more fans switched to getting their Internet service from Pigspleen, and the more money there was for the artists. Inside of a year, the ISP had a hundred thousand new customers and now it had a million -- more than half the broadband connections in the city. + +"An overhaul of the indienet code has been on my plate for months now," Jolu said. "The original programs were written really fast and dirty and they could be made a lot more efficient with a little work. But I just haven't had the time. One of the high-marked to-do items has been to encrypt the connections, just because Trudy likes it that way." Trudy Doo was the founder of Pigspleen. She was an old time San Francisco punk legend, the singer/front-woman of the anarcho-feminist band Speedwhores, and she was crazy about privacy. I could totally believe that she'd want her music service encrypted on general principles. + +"Will it be hard? I mean, how long would it take?" + +"Well, there's tons of crypto code for free online, of course," Jolu said. He was doing the thing he did when he was digging into a meaty code problem -- getting that faraway look, drumming his palms on the table, making the coffee slosh into the saucers. I wanted to laugh -- everything might be destroyed and crap and scary, but Jolu would write that code. + +"Can I help?" + +He looked at me. "What, you don't think I can manage it?" + +"What?" + +"I mean, you did this whole Xnet thing without even telling me. Without talking to me. I kind of thought that you didn't need my help with this stuff." + +I was brought up short. "What?" I said again. Jolu was looking really steamed now. It was clear that this had been eating him for a long time. "Jolu --" + +He looked at me and I could see that he was furious. How had I missed this? God, I was such an idiot sometimes. "Look dude, it's not a big deal --" by which he clearly meant that it was a really big deal "-- it's just that you know, you never even /{asked}/. I hate the DHS. Darryl was my friend too. I could have really helped with it." + +I wanted to stick my head between my knees. "Listen Jolu, that was really stupid of me. I did it at like two in the morning. I was just crazy when it was happening. I --" I couldn't explain it. Yeah, he was right, and that was the problem. It had been two in the morning but I could have talked to Jolu about it the next day or the next. I hadn't because I'd known what he'd say -- that it was an ugly hack, that I needed to think it through better. Jolu was always figuring out how to turn my 2 AM ideas into real code, but the stuff that he came out with was always a little different from what I'd come up with. I'd wanted the project for myself. I'd gotten totally into being M1k3y. + +"I'm sorry," I said at last. "I'm really, really sorry. You're totally right. I just got freaked out and did something stupid. I really need your help. I can't make this work without you." + +"You mean it?" + +"Of course I mean it," I said. "You're the best coder I know. You're a goddamned genius, Jolu. I would be honored if you'd help me with this." + +He drummed his fingers some more. "It's just -- You know. You're the leader. Van's the smart one. Darryl was... He was your second-in-command, the guy who had it all organized, who watched the details. Being the programmer, that was /{my}/ thing. It felt like you were saying you didn't need me." + +"Oh man, I am such an idiot. Jolu, you're the best-qualified person I know to do this. I'm really, really, really --" + +"All right, already. Stop. Fine. I believe you. We're all really screwed up right now. So yeah, of course you can help. We can probably even pay you -- I've got a little budget for contract programmers." + +"Really?" No one had ever paid me for writing code. + +"Sure. You're probably good enough to be worth it." He grinned and slugged me in the shoulder. Jolu's really easy-going most of the time, which is why he'd freaked me out so much. + +I paid for the coffees and we went out. I called my parents and let them know what I was doing. Jolu's mom insisted on making us sandwiches. We locked ourselves in his room with his computer and the code for indienet and we embarked on one of the great all-time marathon programming sessions. Once Jolu's family went to bed around 11:30, we were able to kidnap the coffee-machine up to his room and go IV with our magic coffee bean supply. + +If you've never programmed a computer, you should. There's nothing like it in the whole world. When you program a computer, it does /{exactly}/ what you tell it to do. It's like designing a machine -- any machine, like a car, like a faucet, like a gas-hinge for a door -- using math and instructions. It's awesome in the truest sense: it can fill you with awe. + +A computer is the most complicated machine you'll ever use. It's made of billions of micro-miniaturized transistors that can be configured to run any program you can imagine. But when you sit down at the keyboard and write a line of code, those transistors do what you tell them to. + +Most of us will never build a car. Pretty much none of us will ever create an aviation system. Design a building. Lay out a city. + +Those are complicated machines, those things, and they're off-limits to the likes of you and me. But a computer is like, ten times more complicated, and it will dance to any tune you play. You can learn to write simple code in an afternoon. Start with a language like Python, which was written to give non-programmers an easier way to make the machine dance to their tune. Even if you only write code for one day, one afternoon, you have to do it. Computers can control you or they can lighten your work -- if you want to be in charge of your machines, you have to learn to write code. + +We wrote a lot of code that night. + +1~ Chapter 8 + +_1 /{ [This chapter is dedicated to Borders,~{ Borders worldwide http://www.bordersstores.com/locator/locator.jsp }~ the global bookselling giant that you can find in cities all over the world -- I'll never forget walking into the gigantic Borders on Orchard Road in Singapore and discovering a shelf loaded with my novels! For many years, the Borders in Oxford Street in London hosted Pat Cadigan's monthly science fiction evenings, where local and visiting authors would read their work, speak about science fiction and meet their fans. When I'm in a strange city (which happens a lot) and I need a great book for my next flight, there always seems to be a Borders brimming with great choices -- I'm especially partial to the Borders on Union Square in San Francisco.] }/ + +I wasn't the only one who got screwed up by the histograms. There are lots of people who have abnormal traffic patterns, abnormal usage patterns. Abnormal is so common, it's practically normal. + +The Xnet was full of these stories, and so were the newspapers and the TV news. Husbands were caught cheating on their wives; wives were caught cheating on their husbands, kids were caught sneaking out with illicit girlfriends and boyfriends. A kid who hadn't told his parents he had AIDS got caught going to the clinic for his drugs. + +Those were the people with something to hide -- not guilty people, but people with secrets. There were even more people with nothing to hide at all, but who nevertheless resented being picked up, and questioned. Imagine if someone locked you in the back of a police car and demanded that you prove that you're /{not}/ a terrorist. + +It wasn't just public transit. Most drivers in the Bay Area have a FasTrak pass clipped to their sun-visors. This is a little radio-based "wallet" that pays your tolls for you when you cross the bridges, saving you the hassle of sitting in a line for hours at the toll-plazas. They'd tripled the cost of using cash to get across the bridge (though they always fudged this, saying that FasTrak was cheaper, not that anonymous cash was more expensive). Whatever holdouts were left afterward disappeared after the number of cash-lanes was reduced to just one per bridge-head, so that the cash lines were even longer. + +So if you're a local, or if you're driving a rental car from a local agency, you've got a FasTrak. It turns out that toll-plazas aren't the only place that your FasTrak gets read, though. The DHS had put FasTrak readers all over town -- when you drove past them, they logged the time and your ID number, building an ever-more perfect picture of who went where, when, in a database that was augmented by "speeding cameras," "red light cameras" and all the other license-plate cameras that had popped up like mushrooms. + +No one had given it much thought. And now that people were paying attention, we were all starting to notice little things, like the fact that the FasTrak doesn't have an off-switch. + +So if you drove a car, you were just as likely to be pulled over by an SFPD cruiser that wanted to know why you were taking so many trips to the Home Depot lately, and what was that midnight drive up to Sonoma last week about? + +The little demonstrations around town on the weekend were growing. Fifty thousand people marched down Market Street after a week of this monitoring. I couldn't care less. The people who'd occupied my city didn't care what the natives wanted. They were a conquering army. They knew how we felt about that. + +One morning I came down to breakfast just in time to hear Dad tell Mom that the two biggest taxi companies were going to give a "discount" to people who used special cards to pay their fares, supposedly to make drivers safer by reducing the amount of cash they carried. I wondered what would happen to the information about who took which cabs where. + +I realized how close I'd come. The new indienet client had been pushed out as an automatic update just as this stuff started to get bad, and Jolu told me that 80 percent of the traffic he saw at Pigspleen was now encrypted. The Xnet just might have been saved. + +Dad was driving me nuts, though. + +"You're being paranoid, Marcus," he told me over breakfast one day as I told him about the guys I'd seen the cops shaking down on BART the day before. + +"Dad, it's ridiculous. They're not catching any terrorists, are they? It's just making people scared." + +"They may not have caught any terrorists yet, but they're sure getting a lot of scumbags off the streets. Look at the drug dealers -- it says they've put dozens of them away since this all started. Remember when those druggies robbed you? If we don't bust their dealers, it'll only get worse." I'd been mugged the year before. They'd been pretty civilized about it. One skinny guy who smelled bad told me he had a gun, the other one asked me for my wallet. They even let me keep my ID, though they got my debit card and Fast Pass. It had still scared me witless and left me paranoid and checking my shoulder for weeks. + +"But most of the people they hold up aren't doing anything wrong, Dad," I said. This was getting to me. My own father! "It's crazy. For every guilty person they catch, they have to punish thousands of innocent people. That's just not good." + +"Innocent? Guys cheating on their wives? Drug dealers? You're defending them, but what about all the people who died? If you don't have anything to hide --" + +"So you wouldn't mind if they pulled /{you}/ over?" My dad's histograms had proven to be depressingly normal so far. + +"I'd consider it my duty," he said. "I'd be proud. It would make me feel safer." + +Easy for him to say. + +# + +Vanessa didn't like me talking about this stuff, but she was too smart about it for me to stay away from the subject for long. We'd get together all the time, and talk about the weather and school and stuff, and then, somehow, I'd be back on this subject. Vanessa was cool when it happened -- she didn't Hulk out on me again -- but I could see it upset her. + +Still. + +"So my dad says, 'I'd consider it my duty.' Can you freaking /{believe}/ it? I mean, God! I almost told him then about going to jail, asking him if he thought that was our 'duty'!" + +We were sitting in the grass in Dolores Park after school, watching the dogs chase frisbees. + +Van had stopped at home and changed into an old t-shirt for one of her favorite Brazilian tecno-brega bands, Carioca Proibidão -- the forbidden guy from Rio. She'd gotten the shirt at a live show we'd all gone to two years before, sneaking out for a grand adventure down at the Cow Palace, and she'd sprouted an inch or two since, so it was tight and rode up her tummy, showing her flat little belly button. + +She lay back in the weak sun with her eyes closed behind her shades, her toes wiggling in her flip-flops. I'd known Van since forever, and when I thought of her, I usually saw the little kid I'd known with hundreds of jangly bracelets made out of sliced-up soda cans, who played the piano and couldn't dance to save her life. Sitting out there in Dolores Park, I suddenly saw her as she was. + +She was totally h4wt -- that is to say, hot. It was like looking at that picture of a vase and noticing that it was also two faces. I could see that Van was just Van, but I could also see that she was hella pretty, something I'd never noticed. + +Of course, Darryl had known it all along, and don't think that I wasn't bummed out anew when I realized this. + +"You can't tell your dad, you know," she said. "You'd put us all at risk." Her eyes were closed and her chest was rising up and down with her breath, which was distracting in a really embarrassing way. + +"Yeah," I said, glumly. "But the problem is that I know he's just totally full of it. If you pulled my dad over and made him prove he wasn't a child-molesting, drug-dealing terrorist, he'd go berserk. Totally off-the-rails. He hates being put on hold when he calls about his credit-card bill. Being locked in the back of a car and questioned for an hour would give him an aneurism." + +"They only get away with it because the normals feel smug compared to the abnormals. If everyone was getting pulled over, it'd be a disaster. No one would ever get anywhere, they'd all be waiting to get questioned by the cops. Total gridlock." + +Woah. + +"Van, you are a total genius," I said. + +"Tell me about it," she said. She had a lazy smile and she looked at me through half-lidded eyes, almost romantic. + +"Seriously. We can do this. We can mess up the profiles easily. Getting people pulled over is easy." + +She sat up and pushed her hair off her face and looked at me. I felt a little flip in my stomach, thinking that she was really impressed with me. + +"It's the arphid cloners," I said. "They're totally easy to make. Just flash the firmware on a ten-dollar Radio Shack reader/writer and you're done. What we do is go around and randomly swap the tags on people, overwriting their Fast Passes and FasTraks with other people's codes. That'll make /{everyone}/ skew all weird and screwy, and make everyone look guilty. Then: total gridlock." + +Van pursed her lips and lowered her shades and I realized she was so angry she couldn't speak. + +"Good bye, Marcus," she said, and got to her feet. Before I knew it, she was walking away so fast she was practically running. + +"Van!" I called, getting to my feet and chasing after her. "Van! Wait!" + +She picked up speed, making me run to catch up with her. + +"Van, what the hell," I said, catching her arm. She jerked it away so hard I punched myself in the face. + +"You're psycho, Marcus. You're going to put all your little Xnet buddies in danger for their lives, and on top of it, you're going to turn the whole city into terrorism suspects. Can't you stop before you hurt these people?" + +I opened and closed my mouth a couple times. "Van, /{I'm}/ not the problem, /{they}/ are. I'm not arresting people, jailing them, making them disappear. The Department of Homeland Security are the ones doing that. I'm fighting back to make them stop." + +"How, by making it worse?" + +"Maybe it has to get worse to get better, Van. Isn't that what you were saying? If everyone was getting pulled over --" + +"That's not what I meant. I didn't mean you should get everyone arrested. If you want to protest, join the protest movement. Do something positive. Didn't you learn /{anything}/ from Darryl? /{Anything?}/" + +"You're damned right I did," I said, losing my cool. "I learned that they can't be trusted. That if you're not fighting them, you're helping them. That they'll turn the country into a prison if we let them. What did you learn, Van? To be scared all the time, to sit tight and keep your head down and hope you don't get noticed? You think it's going to get better? If we don't do anything, this is as /{good as it's going to get}/. It will only get worse and worse from now on. You want to help Darryl? Help me bring them down!" + +There it was again. My vow. Not to get Darryl free, but to bring down the entire DHS. That was crazy, even I knew it. But it was what I planned to do. No question about it. + +Van shoved me hard with both hands. She was strong from school athletics -- fencing, lacrosse, field hockey, all the girls-school sports -- and I ended up on my ass on the disgusting San Francisco sidewalk. She took off and I didn't follow. + +# + +> The important thing about security systems isn't how they work, it's how they fail. + +That was the first line of my first blog post on Open Revolt, my Xnet site. I was writing as M1k3y, and I was ready to go to war. + +> Maybe all the automatic screening is supposed to catch terrorists. Maybe it will catch a terrorist sooner or later. The problem is that it catches /{us}/ too, even though we're not doing anything wrong. + +> The more people it catches, the more brittle it gets. If it catches too many people, it dies. + +> Get the idea? + +I pasted in my HOWTO for building a arphid cloner, and some tips for getting close enough to people to read and write their tags. I put my own cloner in the pocket of my vintage black leather motocross jacket with the armored pockets and left for school. I managed to clone six tags between home and Chavez High. + +It was war they wanted. It was war they'd get. + +# + +If you ever decide to do something as stupid as build an automatic terrorism detector, here's a math lesson you need to learn first. It's called "the paradox of the false positive," and it's a doozy. + +Say you have a new disease, called Super-AIDS. Only one in a million people gets Super-AIDS. You develop a test for Super-AIDS that's 99 percent accurate. I mean, 99 percent of the time, it gives the correct result -- true if the subject is infected, and false if the subject is healthy. You give the test to a million people. + +One in a million people have Super-AIDS. One in a hundred people that you test will generate a "false positive" -- the test will say he has Super-AIDS even though he doesn't. That's what "99 percent accurate" means: one percent wrong. + +What's one percent of one million? + +1,000,000/100 = 10,000 + +One in a million people has Super-AIDS. If you test a million random people, you'll probably only find one case of real Super-AIDS. But your test won't identify /{one}/ person as having Super-AIDS. It will identify /{10,000}/ people as having it. + +Your 99 percent accurate test will perform with 99.99 percent /{inaccuracy}/. + +That's the paradox of the false positive. When you try to find something really rare, your test's accuracy has to match the rarity of the thing you're looking for. If you're trying to point at a single pixel on your screen, a sharp pencil is a good pointer: the pencil-tip is a lot smaller (more accurate) than the pixels. But a pencil-tip is no good at pointing at a single /{atom}/ in your screen. For that, you need a pointer -- a test -- that's one atom wide or less at the tip. + +This is the paradox of the false positive, and here's how it applies to terrorism: + +Terrorists are really rare. In a city of twenty million like New York, there might be one or two terrorists. Maybe ten of them at the outside. 10/20,000,000 = 0.00005 percent. One twenty-thousandth of a percent. + +That's pretty rare all right. Now, say you've got some software that can sift through all the bank-records, or toll-pass records, or public transit records, or phone-call records in the city and catch terrorists 99 percent of the time. + +In a pool of twenty million people, a 99 percent accurate test will identify two hundred thousand people as being terrorists. But only ten of them are terrorists. To catch ten bad guys, you have to haul in and investigate two hundred thousand innocent people. + +Guess what? Terrorism tests aren't anywhere /{close}/ to 99 percent accurate. More like 60 percent accurate. Even 40 percent accurate, sometimes. + +What this all meant was that the Department of Homeland Security had set itself up to fail badly. They were trying to spot incredibly rare events -- a person is a terrorist -- with inaccurate systems. + +Is it any wonder we were able to make such a mess? + +# + +I stepped out the front door whistling on a Tuesday morning one week into the Operation False Positive. I was rockin' out to some new music I'd downloaded from the Xnet the night before -- lots of people sent M1k3y little digital gifts to say thank you for giving them hope. + +I turned onto 23d Street and carefully took the narrow stone steps cut into the side of the hill. As I descended, I passed Mr Wiener Dog. I don't know Mr Wiener Dog's real name, but I see him nearly every day, walking his three panting wiener dogs up the staircase to the little parkette. Squeezing past them all on the stairs is pretty much impossible and I always end up tangled in a leash, knocked into someone's front garden, or perched on the bumper of one of the cars parked next to the curb. + +Mr Wiener Dog is clearly Someone Important, because he has a fancy watch and always wears a nice suit. I had mentally assumed that he worked down in the financial district. + +Today as I brushed up against him, I triggered my arphid cloner, which was already loaded in the pocket of my leather jacket. The cloner sucked down the numbers off his credit-cards and his car-keys, his passport and the hundred-dollar bills in his wallet. + +Even as it was doing that, it was flashing some of them with new numbers, taken from other people I'd brushed against. It was like switching the license-plates on a bunch of cars, but invisible and instantaneous. I smiled apologetically at Mr Wiener Dog and continued down the stairs. I stopped at three of the cars long enough to swap their FasTrak tags with numbers taken off of all the cars I'd gone past the day before. + +You might think I was being a little aggro here, but I was cautious and conservative compared to a lot of the Xnetters. A couple girls in the Chemical Engineering program at UC Berkeley had figured out how to make a harmless substance out of kitchen products that would trip an explosive sniffer. They'd had a merry time sprinkling it on their profs' briefcases and jackets, then hiding out and watching the same profs try to get into the auditoriums and libraries on campus, only to get flying-tackled by the new security squads that had sprung up everywhere. + +Other people wanted to figure out how to dust envelopes with substances that would test positive for anthrax, but everyone else thought they were out of their minds. Luckily, it didn't seem like they'd be able to figure it out. + +I passed by San Francisco General Hospital and nodded with satisfaction as I saw the huge lines at the front doors. They had a police checkpoint too, of course, and there were enough Xnetters working as interns and cafeteria workers and whatnot there that everyone's badges had been snarled up and swapped around. I'd read the security checks had tacked an hour onto everyone's work day, and the unions were threatening to walk out unless the hospital did something about it. + +A few blocks later, I saw an even longer line for the BART. Cops were walking up and down the line pointing people out and calling them aside for questioning, bag-searches and pat-downs. They kept getting sued for doing this, but it didn't seem to be slowing them down. + +I got to school a little ahead of time and decided to walk down to 22nd Street to get a coffee -- and I passed a police checkpoint where they were pulling over cars for secondary inspection. + +School was no less wild -- the security guards on the metal detectors were also wanding our school IDs and pulling out students with odd movements for questioning. Needless to say, we all had pretty weird movements. Needless to say, classes were starting an hour or more later. + +Classes were crazy. I don't think anyone was able to concentrate. I overheard two teachers talking about how long it had taken them to get home from work the day before, and planning to sneak out early that day. + +It was all I could do to keep from laughing. The paradox of the false positive strikes again! + +Sure enough, they let us out of class early and I headed home the long way, circling through the Mission to see the havoc. Long lines of cars. BART stations lined up around the blocks. People swearing at ATMs that wouldn't dispense their money because they'd had their accounts frozen for suspicious activity (that's the danger of wiring your checking account straight into your FasTrak and Fast Pass!). + +I got home and made myself a sandwich and logged into the Xnet. It had been a good day. People from all over town were crowing about their successes. We'd brought the city of San Francisco to a standstill. The news-reports confirmed it -- they were calling it the DHS gone haywire, blaming it all on the fake-ass "security" that was supposed to be protecting us from terrorism. The Business section of the San Francisco Chronicle gave its whole front page to an estimate of the economic cost of the DHS security resulting from missed work hours, meetings and so on. According to the Chronicle's economist, a week of this crap would cost the city more than the Bay Bridge bombing had. + +Mwa-ha-ha-ha. + +The best part: Dad got home that night late. Very late. Three /{hours}/ late. Why? Because he'd been pulled over, searched, questioned. Then it happened /{again}/. Twice. + +Twice! + +1~ Chapter 9 + +_1 /{ [This chapter is dedicated to Compass Books/Books Inc,~{ Compass Books/Books Inc: http://www.booksinc.net/NASApp/store/Product;jsessionid=abcF-ch09-pbU6m7ZRrLr?s=showproduct&isbn=0765319853 }~ the oldest independent bookstore in the western USA. They've got stores up and down California, in San Francisco, Burlingame, Mountain View and Palo Alto, but coolest of all is that they run a killer bookstore in the middle of Disneyland's Downtown Disney in Anaheim. I'm a stone Disney park freak (see my first novel, Down and Out in the Magic Kingdom if you don't believe it), and every time I've lived in California, I've bought myself an annual Disneyland pass, and on practically every visit, I drop by Compass Books in Downtown Disney. They stock a brilliant selection of unauthorized (and even critical) books about Disney, as well as a great variety of kids books and science fiction, and the cafe next door makes a mean cappuccino.] }/ + +He was so angry I thought he was going to pop. You know I said I'd only seen him lose his cool rarely? That night, he lost it more than he ever had. + +"You wouldn't believe it. This cop, he was like eighteen years old and he kept saying, 'But sir, why were you in Berkeley yesterday if your client is in Mountain View?' I kept explaining to him that I teach at Berkeley and then he'd say, 'I thought you were a consultant,' and we'd start over again. It was like some kind of sitcom where the cops have been taken over by the stupidity ray. + +"What's worse was he kept insisting that I'd been in Berkeley today as well, and I kept saying no, I hadn't been, and he said I had been. Then he showed me my FasTrak billing and it said I'd driven the San Mateo bridge three times that day! + +"That's not all," he said, and drew in a breath that let me know he was really steamed. "They had information about where I'd been, places that /{didn't have a toll plaza}/. They'd been polling my pass just on the street, at random. And it was /{wrong}/! Holy crap, I mean, they're spying on us all and they're not even competent!" + +I'd drifted down into the kitchen as he railed there, and now I was watching him from the doorway. Mom met my eye and we both raised our eyebrows as if to say, /{Who's going to say 'I told you so' to him?}/ I nodded at her. She could use her spousular powers to nullify his rage in a way that was out of my reach as a mere filial unit. + +"Drew," she said, and grabbed him by the arm to make him stop stalking back and forth in the kitchen, waving his arms like a street-preacher. + +"What?" he snapped. + +"I think you owe Marcus an apology." She kept her voice even and level. Dad and I are the spazzes in the household -- Mom's a total rock. + +Dad looked at me. His eyes narrowed as he thought for a minute. "All right," he said at last. "You're right. I was talking about competent surveillance. These guys were total amateurs. I'm sorry, son," he said. "You were right. That was ridiculous." He stuck his hand out and shook my hand, then gave me a firm, unexpected hug. + +"God, what are we doing to this country, Marcus? Your generation deserves to inherit something better than this." When he let me go, I could see the deep wrinkles in his face, lines I'd never noticed. + +I went back up to my room and played some Xnet games. There was a good multiplayer thing, a clockwork pirate game where you had to quest every day or two to wind up your whole crew's mainsprings before you could go plundering and pillaging again. It was the kind of game I hated but couldn't stop playing: lots of repetitive quests that weren't all that satisfying to complete, a little bit of player-versus-player combat (scrapping to see who would captain the ship) and not that many cool puzzles that you had to figure out. Mostly, playing this kind of game made me homesick for Harajuku Fun Madness, which balanced out running around in the real world, figuring out online puzzles, and strategizing with your team. + +But today it was just what I needed. Mindless entertainment. + +My poor dad. + +I'd done that to him. He'd been happy before, confident that his tax dollars were being spent to keep him safe. I'd destroyed that confidence. It was false confidence, of course, but it had kept him going. Seeing him now, miserable and broken, I wondered if it was better to be clear-eyed and hopeless or to live in a fool's paradise. That shame -- the shame I'd felt since I gave up my passwords, since they'd broken me -- returned, leaving me listless and wanting to just get away from myself. + +My character was a swabbie on the pirate ship /{Zombie Charger}/, and he'd wound down while I'd been offline. I had to IM all the other players on my ship until I found one willing to wind me up. That kept me occupied. I liked it, actually. There was something magic about a total stranger doing you a favor. And since it was the Xnet, I knew that all the strangers were friends, in some sense. + +> Where u located? + +The character who wound me up was called Lizanator, and it was female, though that didn't mean that it was a girl. Guys had some weird affinity for playing female characters. + +> San Francisco + +I said. + +> No stupe, where you located in San Fran? + +> Why, you a pervert? + +That usually shut down that line of conversation. Of course every gamespace was full of pedos and pervs, and cops pretending to be pedo- and perv-bait (though I sure hoped there weren't any cops on the Xnet!). An accusation like that was enough to change the subject nine out of ten times. + +> Mission? Potrero Hill? Noe? East Bay? + +> Just wind me up k thx? + +She stopped winding. + +> You scared? + +> Safe -- why do you care? + +> Just curious + +I was getting a bad vibe off her. She was clearly more than just curious. Call it paranoia. I logged off and shut down my Xbox. + +# + +Dad looked at me over the table the next morning and said, "It looks like it's going to get better, at least." He handed me a copy of the /{Chronicle}/ open to the third page. + +> A Department of Homeland Security spokesman has confirmed that the San Francisco office has requested a 300 percent budget and personnel increase from DC + +What? + +> Major General Graeme Sutherland, the commanding officer for Northern California DHS operations, confirmed the request at a press conference yesterday, noting that a spike in suspicious activity in the Bay Area prompted the request. "We are tracking a spike in underground chatter and activity and believe that saboteurs are deliberately manufacturing false security alerts to undermine our efforts." + +My eyes crossed. No freaking way. + +> "These false alarms are potentially 'radar chaff' intended to disguise real attacks. The only effective way of combatting them is to step up staffing and analyst levels so that we can fully investigate every lead." + +> Sutherland noted the delays experienced all over the city were "unfortunate" and committed to eliminating them. + +I had a vision of the city with four or five times as many DHS enforcers, brought in to make up for my own stupid ideas. Van was right. The more I fought them, the worse it was going to get. + +Dad pointed at the paper. "These guys may be fools, but they're methodical fools. They'll just keep throwing resources at this problem until they solve it. It's tractable, you know. Mining all the data in the city, following up on every lead. They'll catch the terrorists." + +I lost it. "Dad! Are you /{listening to yourself}/? They're talking about investigating practically every person in the city of San Francisco!" + +"Yeah," he said, "that's right. They'll catch every alimony cheat, every dope dealer, every dirt-bag and every terrorist. You just wait. This could be the best thing that ever happened to this country." + +"Tell me you're joking," I said. "I beg you. You think that that's what they intended when they wrote the Constitution? What about the Bill of Rights?" + +"The Bill of Rights was written before data-mining," he said. He was awesomely serene, convinced of his rightness. "The right to freedom of association is fine, but why shouldn't the cops be allowed to mine your social network to figure out if you're hanging out with gangbangers and terrorists?" + +"Because it's an invasion of my privacy!" I said. + +"What's the big deal? Would you rather have privacy or terrorists?" + +Agh. I hated arguing with my dad like this. I needed a coffee. "Dad, come on. Taking away our privacy isn't catching terrorists: it's just inconveniencing normal people." + +"How do you know it's not catching terrorists?" + +"Where are the terrorists they've caught?" + +"I'm sure we'll see arrests in good time. You just wait." + +"Dad, what the hell has happened to you since last night? You were ready to go nuclear on the cops for pulling you over --" + +"Don't use that tone with me, Marcus. What's happened since last night is that I've had the chance to think it over and to read /{this}/." He rattled his paper. "The reason they caught me is that the bad guys are actively jamming them. They need to adjust their techniques to overcome the jamming. But they'll get there. Meanwhile the occasional road stop is a small price to pay. This isn't the time to be playing lawyer about the Bill of Rights. This is the time to make some sacrifices to keep our city safe." + +I couldn't finish my toast. I put the plate in the dishwasher and left for school. I had to get out of there. + +# + +The Xnetters weren't happy about the stepped up police surveillance, but they weren't going to take it lying down. Someone called a phone-in show on KQED and told them that the police were wasting their time, that we could monkeywrench the system faster than they could untangle it. The recording was a top Xnet download that night. + +"This is California Live and we're talking to an anonymous caller at a payphone in San Francisco. He has his own information about the slowdowns we've been facing around town this week. Caller, you're on the air." + +"Yeah, yo, this is just the beginning, you know? I mean, like, we're just getting started. Let them hire a billion pigs and put a checkpoint on every corner. We'll jam them all! And like, all this crap about terrorists? We're not terrorists! Give me a break, I mean, really! We're jamming up the system because we hate the Homeland Security, and because we love our city. Terrorists? I can't even spell jihad. Peace out." + +He sounded like an idiot. Not just the incoherent words, but also his gloating tone. He sounded like a kid who was indecently proud of himself. He /{was}/ a kid who was indecently proud of himself. + +The Xnet flamed out over this. Lots of people thought he was an idiot for calling in, while others thought he was a hero. I worried that there was probably a camera aimed at the payphone he'd used. Or an arphid reader that might have sniffed his Fast Pass. I hoped he'd had the smarts to wipe his fingerprints off the quarter, keep his hood up, and leave all his arphids at home. But I doubted it. I wondered if he'd get a knock on the door sometime soon. + +The way I knew when something big had happened on Xnet was that I'd suddenly get a million emails from people who wanted M1k3y to know about the latest haps. It was just as I was reading about Mr Can't-Spell-Jihad that my mailbox went crazy. Everyone had a message for me -- a link to a livejournal on the Xnet -- one of the many anonymous blogs that were based on the Freenet document publishing system that was also used by Chinese democracy advocates. + +> Close call + +> We were jamming at the Embarcadero tonite and goofing around giving everyone a new car key or door key or Fast Pass or FasTrak, tossing around a little fake gunpowder. There were cops everywhere but we were smarter than them; we're there pretty much every night and we never get caught. + +> So we got caught tonight. It was a stupid mistake we got sloppy we got busted. It was an undercover who caught my pal and then got the rest of us. They'd been watching the crowd for a long time and they had one of those trucks nearby and they took four of us in but missed the rest. + +> The truck was JAMMED like a can of sardines with every kind of person, old young black white rich poor all suspects, and there were two cops trying to ask us questions and the undercovers kept bringing in more of us. Most people were trying to get to the front of the line to get through questioning so we kept on moving back and it was like hours in there and really hot and it was getting more crowded not less. + +> At like 8PM they changed shifts and two new cops came in and bawled out the two cops who were there all like wtf? aren't you doing anything here. They had a real fight and then the two old cops left and the new cops sat down at their desks and whispered to each other for a while. + +> Then one cop stood up and started shouting EVERYONE JUST GO HOME JESUS CHRIST WE'VE GOT BETTER THINGS TO DO THAN BOTHER YOU WITH MORE QUESTIONS IF YOU'VE DONE SOMETHING WRONG JUST DON'T DO IT AGAIN AND LET THIS BE A WARNING TO YOU ALL. + +> A bunch of the suits got really pissed which was HILARIOUS because I mean ten minutes before they were buggin about being held there and now they were wicked pissed about being let go, like make up your minds! + +> We split fast though and got out and came home to write this. There are undercovers everywhere, believe. If you're jamming, be open-eyed and get ready to run when problems happen. If you get caught try to wait it out they're so busy they'll maybe just let you go. + +> We made them that busy! All those people in that truck were there because we'd jammed them. So jam on! + +I felt like I was going to throw up. Those four people -- kids I'd never met -- they nearly went away forever because of something I'd started. + +Because of something I'd told them to do. I was no better than a terrorist. + +# + +The DHS got their budget requisition approved. The President went on TV with the Governor to tell us that no price was too high for security. We had to watch it the next day in school at assembly. My Dad cheered. He'd hated the President since the day he was elected, saying he wasn't any better than the last guy and the last guy had been a complete disaster, but now all he could do was talk about how decisive and dynamic the new guy was. + +"You have to take it easy on your father," Mom said to me one night after I got home from school. She'd been working from home as much as possible. Mom's a freelance relocation specialist who helps British people get settled in in San Francisco. The UK High Commission pays her to answer emails from mystified British people across the country who are totally confused by how freaky we Americans are. She explains Americans for a living, and she said that these days it was better to do that from home, where she didn't have to actually see any Americans or talk to them. + +I don't have any illusions about Britain. America may be willing to trash its Constitution every time some Jihadist looks cross-eyed at us, but as I learned in my ninth-grade Social Studies independent project, the Brits don't even /{have}/ a Constitution. They've got laws there that would curl the hair on your toes: they can put you in jail for an entire year if they're really sure that you're a terrorist but don't have enough evidence to prove it. Now, how sure can they be if they don't have enough evidence to prove it? How'd they get that sure? Did they see you committing terrorist acts in a really vivid dream? + +And the surveillance in Britain makes America look like amateur hour. The average Londoner is photographed 500 times a day, just walking around the streets. Every license plate is photographed at every corner in the country. Everyone from the banks to the public transit company is enthusiastic about tracking you and snitching on you if they think you're remotely suspicious. + +But Mom didn't see it that way. She'd left Britain halfway through high school and she'd never felt at home here, no matter that she'd married a boy from Petaluma and raised a son here. To her, this was always the land of barbarians, and Britain would always be home. + +"Mom, he's just wrong. You of all people should know that. Everything that makes this country great is being flushed down the toilet and he's going along with it. Have you noticed that they haven't /{caught any terrorists}/? Dad's all like, 'We need to be safe,' but he needs to know that most of us don't feel safe. We feel endangered all the time." + +"I know this all, Marcus. Believe me, I'm not fan of what's been happening to this country. But your father is --" She broke off. "When you didn't come home after the attacks, he thought --" + +She got up and made herself a cup of tea, something she did whenever she was uncomfortable or disconcerted. + +"Marcus," she said. "Marcus, we thought you were dead. Do you understand that? We were mourning you for days. We were imagining you blown to bits, at the bottom of the ocean. Dead because some bastard decided to kill hundreds of strangers to make some point." + +That sank in slowly. I mean, I understood that they'd been worried. Lots of people died in the bombings -- four thousand was the present estimate -- and practically everyone knew someone who didn't come home that day. There were two people from my school who had disappeared. + +"Your father was ready to kill someone. Anyone. He was out of his mind. You've never seen him like this. I've never seen him like it either. He was out of his mind. He'd just sit at this table and curse and curse and curse. Vile words, words I'd never heard him say. One day -- the third day -- someone called and he was sure it was you, but it was a wrong number and he threw the phone so hard it disintegrated into thousands of pieces." I'd wondered about the new kitchen phone. + +"Something broke in your father. He loves you. We both love you. You are the most important thing in our lives. I don't think you realize that. Do you remember when you were ten, when I went home to London for all that time? Do you remember?" + +I nodded silently. + +"We were ready to get a divorce, Marcus. Oh, it doesn't matter why anymore. It was just a bad patch, the kind of thing that happens when people who love each other stop paying attention for a few years. He came and got me and convinced me to come back for you. We couldn't bear the thought of doing that to you. We fell in love again for you. We're together today because of you." + +I had a lump in my throat. I'd never known this. No one had ever told me. + +"So your father is having a hard time right now. He's not in his right mind. It's going to take some time before he comes back to us, before he's the man I love again. We need to understand him until then." + +She gave me a long hug, and I noticed how thin her arms had gotten, how saggy the skin on her neck was. I always thought of my mother as young, pale, rosy-cheeked and cheerful, peering shrewdly through her metal-rim glasses. Now she looked a little like an old woman. I had done that to her. The terrorists had done that to her. The Department of Homeland Security had done that to her. In a weird way, we were all on the same side, and Mom and Dad and all those people we'd spoofed were on the other side. + +# + +I couldn't sleep that night. Mom's words kept running through my head. Dad had been tense and quiet at dinner and we'd barely spoken, because I didn't trust myself not to say the wrong thing and because he was all wound up over the latest news, that Al Qaeda was definitely responsible for the bombing. Six different terrorist groups had claimed responsibility for the attack, but only Al Qaeda's Internet video disclosed information that the DHS said they hadn't disclosed to anyone. + +I lay in bed and listened to a late-night call-in radio show. The topic was sex problems, with this gay guy who I normally loved to listen to, he would give people such raw advice, but good advice, and he was really funny and campy. + +Tonight I couldn't laugh. Most of the callers wanted to ask what to do about the fact that they were having a hard time getting busy with their partners ever since the attack. Even on sex-talk radio, I couldn't get away from the topic. + +I switched the radio off and heard a purring engine on the street below. + +My bedroom is in the top floor of our house, one of the painted ladies. I have a sloping attic ceiling and windows on both sides -- one overlooks the whole Mission, the other looks out into the street in front of our place. There were often cars cruising at all hours of the night, but there was something different about this engine noise. + +I went to the street-window and pulled up my blinds. Down on the street below me was a white, unmarked van whose roof was festooned with radio antennas, more antennas than I'd ever seen on a car. It was cruising very slowly down the street, a little dish on top spinning around and around. + +As I watched, the van stopped and one of the back doors popped open. A guy in a DHS uniform -- I could spot one from a hundred yards now -- stepped out into the street. He had some kind of handheld device, and its blue glow lit his face. He paced back and forth, first scouting my neighbors, making notes on his device, then heading for me. There was something familiar in the way he walked, looking down -- + +He was using a wifinder! The DHS was scouting for Xnet nodes. I let go of the blinds and dove across my room for my Xbox. I'd left it up while I downloaded some cool animations one of the Xnetters had made of the President's no-price-too-high speech. I yanked the plug out of the wall, then scurried back to the window and cracked the blind a fraction of an inch. + +The guy was looking down into his wifinder again, walking back and forth in front of our house. A moment later, he got back into his van and drove away. + +I got out my camera and took as many pictures as I could of the van and its antennas. Then I opened them in a free image-editor called The GIMP and edited out everything from the photo except the van, erasing my street and anything that might identify me. + +I posted them to Xnet and wrote down everything I could about the vans. These guys were definitely looking for the Xnet, I could tell. + +Now I really couldn't sleep. + +Nothing for it but to play wind-up pirates. There'd be lots of players even at this hour. The real name for wind-up pirates was Clockwork Plunder, and it was a hobbyist project that had been created by teenaged death-metal freaks from Finland. It was totally free to play, and offered just as much fun as any of the $15/month services like Ender's Universe and Middle Earth Quest and Discworld Dungeons. + +I logged back in and there I was, still on the deck of the Zombie Charger, waiting for someone to wind me up. I hated this part of the game. + +> Hey you + +I typed to a passing pirate. + +> Wind me up? + +He paused and looked at me. + +> y should i? + +> We're on the same team. Plus you get experience points. + +What a jerk. + +> Where are you located? + +> San Francisco + +This was starting to feel familiar. + +> Where in San Francisco? + +I logged out. There was something weird going on in the game. I jumped onto the livejournals and began to crawl from blog to blog. I got through half a dozen before I found something that froze my blood. + +Livejournallers love quizzes. What kind of hobbit are you? Are you a great lover? What planet are you most like? Which character from some movie are you? What's your emotional type? They fill them in and their friends fill them in and everyone compares their results. Harmless fun. + +But the quiz that had taken over the blogs of the Xnet that night was what scared me, because it was anything but harmless: + +* What's your sex + +* What grade are you in? + +* What school do you go to? + +* Where in the city do you live? + +The quizzes plotted the results on a map with colored pushpins for schools and neighborhoods, and made lame recommendations for places to buy pizza and stuff. + +But look at those questions. Think about my answers: + +* Male + +* 12 + +* Chavez High + +* Potrero Hill + +There were only two people in my whole school who matched that profile. Most schools it would be the same. If you wanted to figure out who the Xnetters were, you could use these quizzes to find them all. + +That was bad enough, but what was worse was what it implied: someone from the DHS was using the Xnet to get at us. The Xnet was compromised by the DHS. + +We had spies in our midst. + +# + +I'd given Xnet discs to hundreds of people, and they'd done the same. I knew the people I gave the discs to pretty well. Some of them I knew very well. I've lived in the same house all my life and I've made hundreds and hundreds of friends over the years, from people who went to daycare with me to people I played soccer with, people who LARPed with me, people I met clubbing, people I knew from school. My ARG team were my closest friends, but there were plenty of people I knew and trusted enough to hand an Xnet disc to. + +I needed them now. + +I woke Jolu up by ringing his cell phone and hanging up after the first ring, three times in a row. A minute later, he was up on Xnet and we were able to have a secure chat. I pointed him to my blog-post on the radio vans and he came back a minute later all freaked out. + +> You sure they're looking for us? + +In response I sent him to the quiz. + +> OMG we're doomed + +> No it's not that bad but we need to figure out who we can trust + +> How? + +> That's what I wanted to ask you -- how many people can you totally vouch for like trust them to the ends of the earth? + +> Um 20 or 30 or so + +> I want to get a bunch of really trustworthy people together and do a key-exchange web of trust thing + +Web of trust is one of those cool crypto things that I'd read about but never tried. It was a nearly foolproof way to make sure that you could talk to the people you trusted, but that no one else could listen in. The problem is that it requires you to physically meet with the people in the web at least once, just to get started. + +> I get it sure. That's not bad. But how you going to get everyone together for the key-signing? + +> That's what I wanted to ask you about -- how can we do it without getting busted? + +Jolu typed some words and erased them, typed more and erased them. + +> Darryl would know + +I typed. + +> God, this was the stuff he was great at. + +Jolu didn't type anything. Then, + +> How about a party? + +he typed. + +> How about if we all get together somewhere like we're teenagers having a party and that way we'll have a ready-made excuse if anyone shows up asking us what we're doing there? + +> That would totally work! You're a genius, Jolu. + +> I know it. And you're going to love this: I know just where to do it, too + +> Where? + +> Sutro baths! + +1~ Chapter 10 + +_1 /{ [This chapter is dedicated to Anderson's Bookshops,~{ Anderson's Bookshops http://www.andersonsbookshop.com/search.php?qkey2=doctorow+little+brother&sid=5156&imageField.x=0&imageField.y=0 123 West Jefferson, Naperville, IL 60540 USA +1 630 355 2665 }~ Chicago's legendary kids' bookstore. Anderson's is an old, old family-run business, which started out as an old-timey drug-store selling some books on the side. Today, it's a booming, multi-location kids' book empire, with some incredibly innovative bookselling practices that get books and kids together in really exciting ways. The best of these is the store's mobile book-fairs, in which they ship huge, rolling bookcases, already stocked with excellent kids' books, direct to schools on trucks -- voila, instant book-fair!] }/ + +What would you do if you found out you had a spy in your midst? You could denounce him, put him up against the wall and take him out. But then you might end up with another spy in your midst, and the new spy would be more careful than the last one and maybe not get caught quite so readily. + +Here's a better idea: start intercepting the spy's communications and feed him and his masters misinformation. Say his masters instruct him to gather information on your movements. Let him follow you around and take all the notes he wants, but steam open the envelopes that he sends back to HQ and replace his account of your movements with a fictitious one. If you want, you can make him seem erratic and unreliable so they get rid of him. You can manufacture crises that might make one side or the other reveal the identities of other spies. In short, you own them. + +This is called the man-in-the-middle attack and if you think about it, it's pretty scary. Someone who man-in-the-middles your communications can trick you in any of a thousand ways. + +Of course, there's a great way to get around the man-in-the-middle attack: use crypto. With crypto, it doesn't matter if the enemy can see your messages, because he can't decipher them, change them, and re-send them. That's one of the main reasons to use crypto. + +But remember: for crypto to work, you need to have keys for the people you want to talk to. You and your partner need to share a secret or two, some keys that you can use to encrypt and decrypt your messages so that men-in-the-middle get locked out. + +That's where the idea of public keys comes in. This is a little hairy, but it's so unbelievably elegant too. + +In public key crypto, each user gets two keys. They're long strings of mathematical gibberish, and they have an almost magic property. Whatever you scramble with one key, the other will unlock, and vice-versa. What's more, they're the /{only}/ keys that can do this -- if you can unscramble a message with one key, you /{know}/ it was scrambled with the other (and vice-versa). + +So you take either one of these keys (it doesn't matter which one) and you just /{publish}/ it. You make it a total /{non-secret}/. You want anyone in the world to know what it is. For obvious reasons, they call this your "public key." + +The other key, you hide in the darkest reaches of your mind. You protect it with your life. You never let anyone ever know what it is. That's called your "private key." (Duh.) + +Now say you're a spy and you want to talk with your bosses. Their public key is known by everyone. Your public key is known by everyone. No one knows your private key but you. No one knows their private key but them. + +You want to send them a message. First, you encrypt it with your private key. You could just send that message along, and it would work pretty well, since they would know when the message arrived that it came from you. How? Because if they can decrypt it with your public key, it can /{only}/ have been encrypted with your private key. This is the equivalent of putting your seal or signature on the bottom of a message. It says, "I wrote this, and no one else. No one could have tampered with it or changed it." + +Unfortunately, this won't actually keep your message a /{secret}/. That's because your public key is really well known (it has to be, or you'll be limited to sending messages to those few people who have your public key). Anyone who intercepts the message can read it. They can't change it and make it seem like it came from you, but if you don't want people to know what you're saying, you need a better solution. + +So instead of just encrypting the message with your private key, you /{also}/ encrypt it with your boss's public key. Now it's been locked twice. The first lock -- the boss's public key -- only comes off when combined with your boss's private key. The second lock -- your private key -- only comes off with your public key. When your bosses receive the message, they unlock it with both keys and now they know for sure that: a) you wrote it and b) that only they can read it. + +It's very cool. The day I discovered it, Darryl and I immediately exchanged keys and spent months cackling and rubbing our hands as we exchanged our military-grade secret messages about where to meet after school and whether Van would ever notice him. + +But if you want to understand security, you need to consider the most paranoid possibilities. Like, what if I tricked you into thinking that /{my}/ public key was your boss's public key? You'd encrypt the message with your private key and my public key. I'd decrypt it, read it, re-encrypt it with your boss's /{real}/ public key and send it on. As far as your boss knows, no one but you could have written the message and no one but him could have read it. + +And I get to sit in the middle, like a fat spider in a web, and all your secrets belong to me. + +Now, the easiest way to fix this is to really widely advertise your public key. If it's /{really}/ easy for anyone to know what your real key is, man-in-the-middle gets harder and harder. But you know what? Making things well-known is just as hard as keeping them secret. Think about it -- how many billions of dollars are spent on shampoo ads and other crap, just to make sure that as many people know about something that some advertiser wants them to know? + +There's a cheaper way of fixing man-in-the-middle: the web of trust. Say that before you leave HQ, you and your bosses sit down over coffee and actually tell each other your keys. No more man-in-the-middle! You're absolutely certain whose keys you have, because they were put into your own hands. + +So far, so good. But there's a natural limit to this: how many people can you physically meet with and swap keys? How many hours in the day do you want to devote to the equivalent of writing your own phone book? How many of those people are willing to devote that kind of time to you? + +Thinking about this like a phonebook helps. The world was once a place with a lot of phonebooks, and when you needed a number, you could look it up in the book. But for many of the numbers that you wanted to refer to on a given day, you would either know it by heart, or you'd be able to ask someone else. Even today, when I'm out with my cell-phone, I'll ask Jolu or Darryl if they have a number I'm looking for. It's faster and easier than looking it up online and they're more reliable, too. If Jolu has a number, I trust him, so I trust the number, too. That's called "transitive trust" -- trust that moves across the web of our relationships. + +A web of trust is a bigger version of this. Say I meet Jolu and get his key. I can put it on my "keyring" -- a list of keys that I've signed with my private key. That means you can unlock it with my public key and know for sure that me -- or someone with my key, anyway -- says that "this key belongs to this guy." + +So I hand you my keyring and provided that you trust me to have actually met and verified all the keys on it, you can take it and add it to your keyring. Now, you meet someone else and you hand the whole ring to him. Bigger and bigger the ring grows, and provided that you trust the next guy in the chain, and he trusts the next guy in his chain and so on, you're pretty secure. + +Which brings me to keysigning parties. These are /{exactly}/ what they sound like: a party where everyone gets together and signs everyone else's keys. Darryl and I, when we traded keys, that was kind of a mini-keysigning party, one with only two sad and geeky attendees. But with more people, you create the seed of the web of trust, and the web can expand from there. As everyone on your keyring goes out into the world and meets more people, they can add more and more names to the ring. You don't have to meet the new people, just trust that the signed key you get from the people in your web is valid. + +So that's why web of trust and parties go together like peanut butter and chocolate. + +# + +"Just tell them it's a super-private party, invitational only," I said. "Tell them not to bring anyone along or they won't be admitted." + +Jolu looked at me over his coffee. "You're joking, right? You tell people that, and they'll bring /{extra}/ friends." + +"Argh," I said. I spent a night a week at Jolu's these days, keeping the code up to date on indienet. Pigspleen actually paid me a non-zero sum of money to do this, which was really weird. I never thought I'd be paid to write code. + +"So what do we do? We only want people we really trust there, and we don't want to mention why until we've got everyone's keys and can send them messages in secret." + +Jolu debugged and I watched over his shoulder. This used to be called "extreme programming," which was a little embarrassing. Now we just call it "programming." Two people are much better at spotting bugs than one. As the cliche goes, "With enough eyeballs, all bugs are shallow." + +We were working our way through the bug reports and getting ready to push out the new rev. It all auto-updated in the background, so our users didn't really need to do anything, they just woke up once a week or so with a better program. It was pretty freaky to know that the code I wrote would be used by hundreds of thousands of people, /{tomorrow}/! + +"What do we do? Man, I don't know. I think we just have to live with it." + +I thought back to our Harajuku Fun Madness days. There were lots of social challenges involving large groups of people as part of that game. + +"OK, you're right. But let's at least try to keep this secret. Tell them that they can bring a maximum of one person, and it has to be someone they've known personally for a minimum of five years." + +Jolu looked up from the screen. "Hey," he said. "Hey, that would totally work. I can really see it. I mean, if you told me not to bring anyone, I'd be all, 'Who the hell does he think he is?' But when you put it that way, it sounds like some awesome 007 stuff." + +I found a bug. We drank some coffee. I went home and played a little Clockwork Plunder, trying not to think about key-winders with nosy questions, and slept like a baby. + +# + +Sutro baths are San Francisco's authentic fake Roman ruins. When it opened in 1896, it was the largest indoor bathing house in the world, a huge Victorian glass solarium filled with pools and tubs and even an early water slide. It went downhill by the fifties, and the owners torched it for the insurance in 1966. All that's left is a labyrinth of weathered stone set into the sere cliff-face at Ocean Beach. It looks for all the world like a Roman ruin, crumbled and mysterious, and just beyond them is a set of caves that let out into the sea. In rough tides, the waves rush through the caves and over the ruins -- they've even been known to suck in and drown the occasional tourist. + +Ocean Beach is way out past Golden Gate park, a stark cliff lined with expensive, doomed houses, plunging down to a narrow beach studded with jellyfish and brave (insane) surfers. There's a giant white rock that juts out of the shallows off the shore. That's called Seal Rock, and it used to be the place where the sea lions congregated until they were relocated to the more tourist-friendly environs of Fisherman's Wharf. + +After dark, there's hardly anyone out there. It gets very cold, with a salt spray that'll soak you to your bones if you let it. The rocks are sharp and there's broken glass and the occasional junkie needle. + +It is an awesome place for a party. + +Bringing along the tarpaulins and chemical glove-warmers was my idea. Jolu figured out where to get the beer -- his older brother, Javier, had a buddy who actually operated a whole underage drinking service: pay him enough and he'd back up to your secluded party spot with ice-chests and as many brews as you wanted. I blew a bunch of my indienet programming money, and the guy showed up right on time: 8PM, a good hour after sunset, and lugged the six foam ice-chests out of his pickup truck and down into the ruins of the baths. He even brought a spare chest for the empties. + +"You kids play safe now," he said, tipping his cowboy hat. He was a fat Samoan guy with a huge smile, and a scary tank-top that you could see his armpit- and belly- and shoulder-hair escaping from. I peeled twenties off my roll and handed them to him -- his markup was 150 percent. Not a bad racket. + +He looked at my roll. "You know, I could just take that from you," he said, still smiling. "I'm a criminal, after all." + +I put my roll in my pocket and looked him levelly in the eye. I'd been stupid to show him what I was carrying, but I knew that there were times when you should just stand your ground. + +"I'm just messing with you," he said, at last. "But you be careful with that money. Don't go showing it around." + +"Thanks," I said. "Homeland Security'll get my back though." + +His smile got even bigger. "Ha! They're not even real five-oh. Those peckerwoods don't know nothin'." + +I looked over at his truck. Prominently displayed in his windscreen was a FasTrak. I wondered how long it would be until he got busted. + +"You got girls coming tonight? That why you got all the beer?" + +I smiled and waved at him as though he was walking back to his truck, which he should have been doing. He eventually got the hint and drove away. His smile never faltered. + +Jolu helped me hide the coolers in the rubble, working with little white LED torches on headbands. Once the coolers were in place, we threw little white LED keychains into each one, so it would glow when you took the styrofoam lids off, making it easier to see what you were doing. + +It was a moonless night and overcast, and the distant streetlights barely illuminated us. I knew we'd stand out like blazes on an infrared scope, but there was no chance that we'd be able to get a bunch of people together without being observed. I'd settle for being dismissed as a little drunken beach-party. + +I don't really drink much. There's been beer and pot and ecstasy at the parties I've been going to since I was 14, but I hated smoking (though I'm quite partial to a hash brownie every now and again), ecstasy took too long -- who's got a whole weekend to get high and come down -- and beer, well, it was all right, but I didn't see what the big deal was. My favorite was big, elaborate cocktails, the kind of thing served in a ceramic volcano, with six layers, on fire, and a plastic monkey on the rim, but that was mostly for the theater of it all. + +I actually like being drunk. I just don't like being hungover, and boy, do I ever get hungover. Though again, that might have to do with the kind of drinks that come in a ceramic volcano. + +But you can't throw a party without putting a case or two of beer on ice. It's expected. It loosens things up. People do stupid things after too many beers, but it's not like my friends are the kind of people who have cars. And people do stupid things no matter what -- beer or grass or whatever are all incidental to that central fact. + +Jolu and I each cracked beers -- Anchor Steam for him, a Bud Lite for me -- and clinked the bottles together, sitting down on a rock. + +"You told them 9PM?" + +"Yeah," he said. + +"Me too." + +We drank in silence. The Bud Lite was the least alcoholic thing in the ice-chest. I'd need a clear head later. + +"You ever get scared?" I said, finally. + +He turned to me. "No man, I don't get scared. I'm always scared. I've been scared since the minute the explosions happened. I'm so scared sometimes, I don't want to get out of bed." + +"Then why do you do it?" + +He smiled. "About that," he said. "Maybe I won't, not for much longer. I mean, it's been great helping you. Great. Really excellent. I don't know when I've done anything so important. But Marcus, bro, I have to say. . ." He trailed off. + +"What?" I said, though I knew what was coming next. + +"I can't do it forever," he said at last. "Maybe not even for another month. I think I'm through. It's too much risk. The DHS, you can't go to war on them. It's crazy. Really actually crazy." + +"You sound like Van," I said. My voice was much more bitter than I'd intended. + +"I'm not criticizing you, man. I think it's great that you've got the bravery to do this all the time. But I haven't got it. I can't live my life in perpetual terror." + +"What are you saying?" + +"I'm saying I'm out. I'm going to be one of those people who acts like it's all OK, like it'll all go back to normal some day. I'm going to use the Internet like I always did, and only use the Xnet to play games. I'm going to get out is what I'm saying. I won't be a part of your plans anymore." + +I didn't say anything. + +"I know that's leaving you on your own. I don't want that, believe me. I'd much rather you give up with me. You can't declare war on the government of the USA. It's not a fight you're going to win. Watching you try is like watching a bird fly into a window again and again." + +He wanted me to say something. What /{I}/ wanted to say was, /{Jesus Jolu, thanks so very much for abandoning me! Do you forget what it was like when they took us away? Do you forget what the country used to be like before they took it over?}/ But that's not what he wanted me to say. What he wanted me to say was: + +"I understand, Jolu. I respect your choice." + +He drank the rest of his bottle and pulled out another one and twisted off the cap. + +"There's something else," he said. + +"What?" + +"I wasn't going to mention it, but I want you to understand why I have to do this." + +"Jesus, Jolu, /{what}/?" + +"I hate to say it, but you're /{white}/. I'm not. White people get caught with cocaine and do a little rehab time. Brown people get caught with crack and go to prison for twenty years. White people see cops on the street and feel safer. Brown people see cops on the street and wonder if they're about to get searched. The way the DHS is treating you? The law in this country has always been like that for us." + +It was so unfair. I didn't ask to be white. I didn't think I was being braver just because I'm white. But I knew what Jolu was saying. If the cops stopped someone in the Mission and asked to see some ID, chances were that person wasn't white. Whatever risk I ran, Jolu ran more. Whatever penalty I'd pay, Jolu would pay more. + +"I don't know what to say," I said. + +"You don't have to say anything," he said. "I just wanted you to know, so you could understand." + +I could see people walking down the side trail toward us. They were friends of Jolu's, two Mexican guys and a girl I knew from around, short and geeky, always wearing cute black Buddy Holly glasses that made her look like the outcast art-student in a teen movie who comes back as the big success. + +Jolu introduced me and gave them beers. The girl didn't take one, but instead produced a small silver flask of vodka from her purse and offered me a drink. I took a swallow -- warm vodka must be an acquired taste -- and complimented her on the flask, which was embossed with a repeating motif of Parappa the Rapper characters. + +"It's Japanese," she said as I played another LED keyring over it. "They have all these great booze-toys based on kids' games. Totally twisted." + +I introduced myself and she introduced herself. "Ange," she said, and shook my hand with hers -- dry, warm, with short nails. Jolu introduced me to his pals, whom he'd known since computer camp in the fourth grade. More people showed up -- five, then ten, then twenty. It was a seriously big group now. + +We'd told people to arrive by 9:30 sharp, and we gave it until 9:45 to see who all would show up. About three quarters were Jolu's friends. I'd invited all the people I really trusted. Either I was more discriminating than Jolu or less popular. Now that he'd told me he was quitting, it made me think that he was less discriminating. I was really pissed at him, but trying not to let it show by concentrating on socializing with other people. But he wasn't stupid. He knew what was going on. I could see that he was really bummed. Good. + +"OK," I said, climbing up on a ruin, "OK, hey, hello?" A few people nearby paid attention to me, but the ones in the back kept on chatting. I put my arms in the air like a referee, but it was too dark. Eventually I hit on the idea of turning my LED keychain on and pointing it at each of the talkers in turn, then at me. Gradually, the crowd fell quiet. + +I welcomed them and thanked them all for coming, then asked them to close in so I could explain why we were there. I could tell they were into the secrecy of it all, intrigued and a little warmed up by the beer. + +"So here it is. You all use the Xnet. It's no coincidence that the Xnet was created right after the DHS took over the city. The people who did that are an organization devoted to personal liberty, who created the network to keep us safe from DHS spooks and enforcers." Jolu and I had worked this out in advance. We weren't going to cop to being behind it all, not to anyone. It was way too risky. Instead, we'd put it out that we were merely lieutenants in "M1k3y"'s army, acting to organize the local resistance. + +"The Xnet isn't pure," I said. "It can be used by the other side just as readily as by us. We know that there are DHS spies who use it now. They use social engineering hacks to try to get us to reveal ourselves so that they can bust us. If the Xnet is going to succeed, we need to figure out how to keep them from spying on us. We need a network within the network." + +I paused and let this sink in. Jolu had suggested that this might be a little heavy -- learning that you're about to be brought into a revolutionary cell. + +"Now, I'm not here to ask you to do anything active. You don't have to go out jamming or anything. You've been brought here because we know you're cool, we know you're trustworthy. It's that trustworthiness I want to get you to contribute tonight. Some of you will already be familiar with the web of trust and keysigning parties, but for the rest of you, I'll run it down quickly --" Which I did. + +"Now what I want from you tonight is to meet the people here and figure out how much you can trust them. We're going to help you generate key-pairs and share them with each other." + +This part was tricky. Asking people to bring their own laptops wouldn't have worked out, but we still needed to do something hella complicated that wouldn't exactly work with paper and pencil. + +I held up a laptop Jolu and I had rebuilt the night before, from the ground up. "I trust this machine. Every component in it was laid by our own hands. It's running a fresh out-of-the-box version of ParanoidLinux, booted off of the DVD. If there's a trustworthy computer left anywhere in the world, this might well be it. + +"I've got a key-generator loaded here. You come up here and give it some random input -- mash the keys, wiggle the mouse -- and it will use that as the seed to create a random public- and private key for you, which it will display on the screen. You can take a picture of the private key with your phone, and hit any key to make it go away forever -- it's not stored on the disk at all. Then it will show you your public key. At that point, you call over all the people here you trust and who trust you, and /{they}/ take a picture of the screen with you standing next to it, so they know whose key it is. + +"When you get home, you have to convert the photos to keys. This is going to be a lot of work, I'm afraid, but you'll only have to do it once. You have to be super-careful about typing these in -- one mistake and you're screwed. Luckily, we've got a way to tell if you've got it right: beneath the key will be a much shorter number, called the 'fingerprint'. Once you've typed in the key, you can generate a fingerprint from it and compare it to the fingerprint, and if they match, you've got it right." + +They all boggled at me. OK, so I'd asked them to do something pretty weird, it's true, but still. + + +1~ Chapter 11 + +_1 /{ [This chapter is dedicated to the University Bookstore~{ The University Bookstore http://www4.bookstore.washington.edu/_trade/ShowTitleUBS.taf?ActionArg=Title&ISBN=9780765319852 4326 University Way NE, Seattle, WA 98105 USA +1 800 335 READ }~ at the University of Washington, whose science fiction section rivals many specialty stores, thanks to the sharp-eyed, dedicated science fiction buyer, Duane Wilkins. Duane's a real science fiction fan -- I first met him at the World Science Fiction Convention in Toronto in 2003 -- and it shows in the eclectic and informed choices on display at the store. One great predictor of a great bookstore is the quality of the "shelf review" -- the little bits of cardboard stuck to the shelves with (generally hand-lettered) staff-reviews extolling the virtues of books you might otherwise miss. The staff at the University Bookstore have clearly benefited from Duane's tutelage, as the shelf reviews at the University Bookstore are second to none.] }/ + +Jolu stood up. + +"This is where it starts, guys. This is how we know which side you're on. You might not be willing to take to the streets and get busted for your beliefs, but if you /{have}/ beliefs, this will let us know it. This will create the web of trust that tells us who's in and who's out. If we're ever going to get our country back, we need to do this. We need to do something like this." + +Someone in the audience -- it was Ange -- had a hand up, holding a beer bottle. + +"So call me stupid but I don't understand this at all. Why do you want us to do this?" + +Jolu looked at me, and I looked back at him. It had all seemed so obvious when we were organizing it. "The Xnet isn't just a way to play free games. It's the last open communications network in America. It's the last way to communicate without being snooped on by the DHS. For it to work we need to know that the person we're talking to isn't a snoop. That means that we need to know that the people we're sending messages to are the people we think they are. + +"That's where you come in. You're all here because we trust you. I mean, really trust you. Trust you with our lives." + +Some of the people groaned. It sounded melodramatic and stupid. + +I got back to my feet. + +"When the bombs went off," I said, then something welled up in my chest, something painful. "When the bombs went off, there were four of us caught up by Market Street. For whatever reason, the DHS decided that made us suspicious. They put bags over our heads, put us on a ship and interrogated us for days. They humiliated us. Played games with our minds. Then they let us go. + +"All except one person. My best friend. He was with us when they picked us up. He'd been hurt and he needed medical care. He never came out again. They say they never saw him. They say that if we ever tell anyone about this, they'll arrest us and make us disappear. + +"Forever." + +I was shaking. The shame. The goddamned shame. Jolu had the light on me. + +"Oh Christ," I said. "You people are the first ones I've told. If this story gets around, you can bet they'll know who leaked it. You can bet they'll come knocking on my door." I took some more deep breaths. "That's why I volunteered on the Xnet. That's why my life, from now on, is about fighting the DHS. With every breath. Every day. Until we're free again. Any one of you could put me in jail now, if you wanted to." + +Ange put her hand up again. "We're not going to rat on you," she said. "No way. I know pretty much everyone here and I can promise you that. I don't know how to know who to trust, but I know who /{not}/ to trust: old people. Our parents. Grownups. When they think of someone being spied on, they think of someone /{else}/, a bad guy. When they think of someone being caught and sent to a secret prison, it's someone /{else}/ -- someone brown, someone young, someone foreign. + +"They forget what it's like to be our age. To be the object of suspicion /{all the time}/! How many times have you gotten on the bus and had every person on it give you a look like you'd been gargling turds and skinning puppies? + +"What's worse, they're turning into adults younger and younger out there. Back in the day, they used to say 'Never trust anyone over 30.' I say, 'Don't trust any bastard over 25!'" + +That got a laugh, and she laughed too. She was pretty, in a weird, horsey way, with a long face and a long jaw. "I'm not really kidding, you know? I mean, think about it. Who elected these ass-clowns? Who let them invade our city? Who voted to put the cameras in our classrooms and follow us around with creepy spyware chips in our transit passes and cars? It wasn't a 16-year-old. We may be dumb, we may be young, but we're not scum." + +"I want that on a t-shirt," I said. + +"It would be a good one," she said. We smiled at each other. + +"Where do I go to get my keys?" she said, and pulled out her phone. + +"We'll do it over there, in the secluded spot by the caves. I'll take you in there and set you up, then you do your thing and take the machine around to your friends to get photos of your public key so they can sign it when they get home." + +I raised my voice. "Oh! One more thing! Jesus, I can't believe I forgot this. /{Delete those photos once you've typed in the keys}/! The last thing we want is a Flickr stream full of pictures of all of us conspiring together." + +There was some good-natured, nervous chuckling, then Jolu turned out the light and in the sudden darkness I could see nothing. Gradually, my eyes adjusted and I set off for the cave. Someone was walking behind me. Ange. I turned and smiled at her, and she smiled back, luminous teeth in the dark. + +"Thanks for that," I said. "You were great." + +"You mean what you said about the bag on your head and everything?" + +"I meant it," I said. "It happened. I never told anyone, but it happened." I thought about it for a moment. "You know, with all the time that went by since, without saying anything, it started to feel like a bad dream. It was real though." I stopped and climbed up into the cave. "I'm glad I finally told people. Any longer and I might have started to doubt my own sanity." + +I set up the laptop on a dry bit of rock and booted it from the DVD with her watching. "I'm going to reboot it for every person. This is a standard ParanoidLinux disc, though I guess you'd have to take my word for it." + +"Hell," she said. "This is all about trust, right?" + +"Yeah," I said. "Trust." + +I retreated some distance as she ran the key-generator, listening to her typing and mousing to create randomness, listening to the crash of the surf, listening to the party noises from over where the beer was. + +She stepped out of the cave, carrying the laptop. On it, in huge white luminous letters, were her public key and her fingerprint and email address. She held the screen up beside her face and waited while I got my phone out. + +"Cheese," she said. I snapped her pic and dropped the camera back in my pocket. She wandered off to the revelers and let them each get pics of her and the screen. It was festive. Fun. She really had a lot of charisma -- you didn't want to laugh at her, you just wanted to laugh /{with}/ her. And hell, it /{was}/ funny! We were declaring a secret war on the secret police. Who the hell did we think we were? + +So it went, through the next hour or so, everyone taking pictures and making keys. I got to meet everyone there. I knew a lot of them -- some were my invitees -- and the others were friends of my pals or my pals' pals. We should all be buddies. We were, by the time the night was out. They were all good people. + +Once everyone was done, Jolu went to make a key, and then turned away, giving me a sheepish grin. I was past my anger with him, though. He was doing what he had to do. I knew that no matter what he said, he'd always be there for me. And we'd been through the DHS jail together. Van too. No matter what, that would bind us together forever. + +I did my key and did the perp-walk around the gang, letting everyone snap a pic. Then I climbed up on the high spot I'd spoken from earlier and called for everyone's attention. + +"So a lot of you have noted that there's a vital flaw in this procedure: what if this laptop can't be trusted? What if it's secretly recording our instructions? What if it's spying on us? What if Jose-Luis and I can't be trusted?" + +More good-natured chuckles. A little warmer than before, more beery. + +"I mean it," I said. "If we were on the wrong side, this could get all of us -- all of /{you}/ -- into a heap of trouble. Jail, maybe." + +The chuckles turned more nervous. + +"So that's why I'm going to do this," I said, and picked up a hammer I'd brought from my Dad's toolkit. I set the laptop down beside me on the rock and swung the hammer, Jolu following the swing with his keychain light. Crash -- I'd always dreamt of killing a laptop with a hammer, and here I was doing it. It felt pornographically good. And bad. + +Smash! The screen-panel fell off, shattered into millions of pieces, exposing the keyboard. I kept hitting it, until the keyboard fell off, exposing the motherboard and the hard-drive. Crash! I aimed square for the hard-drive, hitting it with everything I had. It took three blows before the case split, exposing the fragile media inside. I kept hitting it until there was nothing bigger than a cigarette lighter, then I put it all in a garbage bag. The crowd was cheering wildly -- loud enough that I actually got worried that someone far above us might hear over the surf and call the law. + +"All right!" I called. "Now, if you'd like to accompany me, I'm going to march this down to the sea and soak it in salt water for ten minutes." + +I didn't have any takers at first, but then Ange came forward and took my arm in her warm hand and said, "That was beautiful," in my ear and we marched down to the sea together. + +It was perfectly dark by the sea, and treacherous, even with our keychain lights. Slippery, sharp rocks that were difficult enough to walk on even without trying to balance six pounds of smashed electronics in a plastic bag. I slipped once and thought I was going to cut myself up, but she caught me with a surprisingly strong grip and kept me upright. I was pulled in right close to her, close enough to smell her perfume, which smelled like new cars. I love that smell. + +"Thanks," I managed, looking into the big eyes that were further magnified by her mannish, black-rimmed glasses. I couldn't tell what color they were in the dark, but I guessed something dark, based on her dark hair and olive complexion. She looked Mediterranean, maybe Greek or Spanish or Italian. + +I crouched down and dipped the bag in the sea, letting it fill with salt water. I managed to slip a little and soak my shoe, and I swore and she laughed. We'd hardly said a word since we lit out for the ocean. There was something magical in our wordless silence. + +At that point, I had kissed a total of three girls in my life, not counting that moment when I went back to school and got a hero's welcome. That's not a gigantic number, but it's not a minuscule one, either. I have reasonable girl radar, and I think I could have kissed her. She wasn't h4wt in the traditional sense, but there's something about a girl and a night and a beach, plus she was smart and passionate and committed. + +But I didn't kiss her, or take her hand. Instead we had a moment that I can only describe as spiritual. The surf, the night, the sea and the rocks, and our breathing. The moment stretched. I sighed. This had been quite a ride. I had a lot of typing to do tonight, putting all those keys into my keychain, signing them and publishing the signed keys. Starting the web of trust. + +She sighed too. + +"Let's go," I said. + +"Yeah," she said. + +Back we went. It was a good night, that night. + +# + +Jolu waited after for his brother's friend to come by and pick up his coolers. I walked with everyone else up the road to the nearest Muni stop and got on board. Of course, none of us was using an issued Muni pass. By that point, Xnetters habitually cloned someone else's Muni pass three or four times a day, assuming a new identity for every ride. + +It was hard to stay cool on the bus. We were all a little drunk, and looking at our faces under the bright bus lights was kind of hilarious. We got pretty loud and the driver used his intercom to tell us to keep it down twice, then told us to shut up right now or he'd call the cops. + +That set us to giggling again and we disembarked in a mass before he did call the cops. We were in North Beach now, and there were lots of buses, taxis, the BART at Market Street, neon-lit clubs and cafes to pull apart our grouping, so we drifted away. + +I got home and fired up my Xbox and started typing in keys from my phone's screen. It was dull, hypnotic work. I was a little drunk, and it lulled me into a half-sleep. + +I was about ready to nod off when a new IM window popped up. + +> herro! + +I didn't recognize the handle -- spexgril -- but I had an idea who might be behind it. + +> hi + +I typed, cautiously. + +> it's me, from tonight + +Then she paste-bombed a block of crypto. I'd already entered her public key into my keychain, so I told the IM client to try decrypting the code with the key. + +> it's me, from tonight + +It was her! + +> Fancy meeting you here + +I typed, then encrypted it to my public key and mailed it off. + +> It was great meeting you + +I typed. + +> You too. I don't meet too many smart guys who are also cute and also socially aware. Good god, man, you don't give a girl much of a chance. + +My heart hammered in my chest. + +> Hello? Tap tap? This thing on? I wasn't born here folks, but I'm sure dying here. Don't forget to tip your waitresses, they work hard. I'm here all week. + +I laughed aloud. + +> I'm here, I'm here. Laughing too hard to type is all + +> Well at least my IM comedy-fu is still mighty + +Um. + +> It was really great to meet you too + +> Yeah, it usually is. Where are you taking me? + +> Taking you? + +> On our next adventure? + +> I didn't really have anything planned + +> Oki -- then I'll take YOU. Saturday. Dolores Park. Illegal open air concert. Be there or be a dodecahedron + +> Wait what? + +> Don't you even read Xnet? It's all over the place. You ever hear of the Speedwhores? + +I nearly choked. That was Trudy Doo's band -- as in Trudy Doo, the woman who had paid me and Jolu to update the indienet code. + +> Yeah I've heard of them + +> They're putting on a huge show and they've got like fifty bands signed to play the bill, going to set up on the tennis courts and bring out their own amp trucks and rock out all night + +I felt like I'd been living under a rock. How had I missed that? There was an anarchist bookstore on Valencia that I sometimes passed on the way to school that had a poster of an old revolutionary named Emma Goldman with the caption "If I can't dance, I don't want to be a part of your revolution." I'd been spending all my energies on figuring out how to use the Xnet to organize dedicated fighters so they could jam the DHS, but this was so much cooler. A big concert -- I had no idea how to do one of those, but I was glad someone did. + +And now that I thought of it, I was damned proud that they were using the Xnet to do it. + +# + +The next day I was a zombie. Ange and I had chatted -- flirted -- until 4AM. Lucky for me, it was a Saturday and I was able to sleep in, but between the hangover and the sleep-dep, I could barely put two thoughts together. + +By lunchtime, I managed to get up and get my ass out onto the streets. I staggered down toward the Turk's to buy my coffee -- these days, if I was alone, I always bought my coffee there, like the Turk and I were part of a secret club. + +On the way, I passed a lot of fresh graffiti. I liked Mission graffiti; a lot of the times, it came in huge, luscious murals, or sarcastic art-student stencils. I liked that the Mission's taggers kept right on going, under the nose of the DHS. Another kind of Xnet, I supposed -- they must have all kinds of ways of knowing what was going on, where to get paint, what cameras worked. Some of the cameras had been spray-painted over, I noticed. + +Maybe they used Xnet! + +Painted in ten-foot-high letters on the side of an auto-yard's fence were the drippy words: DON'T TRUST ANYONE OVER 25. + +I stopped. Had someone left my "party" last night and come here with a can of paint? A lot of those people lived in the neighborhood. + +I got my coffee and had a little wander around town. I kept thinking I should be calling someone, seeing if they wanted to get a movie or something. That's how it used to be on a lazy Saturday like this. But who was I going to call? Van wasn't talking to me, I didn't think I was ready to talk to Jolu, and Darryl -- + +Well, I couldn't call Darryl. + +I got my coffee and went home and did a little searching around on the Xnet's blogs. These anonablogs were untraceable to any author -- unless that author was stupid enough to put her name on it -- and there were a lot of them. Most of them were apolitical, but a lot of them weren't. They talked about schools and the unfairness there. They talked about the cops. Tagging. + +Turned out there'd been plans for the concert in the park for weeks. It had hopped from blog to blog, turning into a full-blown movement without my noticing. And the concert was called Don't Trust Anyone Over 25. + +Well, that explained where Ange got it. It was a good slogan. + +# + +Monday morning, I decided I wanted to check out that anarchist bookstore again, see about getting one of those Emma Goldman posters. I needed the reminder. + +I detoured down to 16th and Mission on my way to school, then up to Valencia and across. The store was shut, but I got the hours off the door and made sure they still had that poster up. + +As I walked down Valencia, I was amazed to see how much of the DON'T TRUST ANYONE OVER 25 stuff there was. Half the shops had DON'T TRUST merch in the windows: lunchboxes, babydoll tees, pencil-boxes, trucker hats. The hipster stores have been getting faster and faster, of course. As new memes sweep the net in the course of a day or two, stores have gotten better at putting merch in the windows to match. Some funny little youtube of a guy launching himself with jet-packs made of carbonated water would land in your inbox on Monday and by Tuesday you'd be able to buy t-shirts with stills from the video on it. + +But it was amazing to see something make the leap from Xnet to the head shops. Distressed designer jeans with the slogan written in careful high school ball-point ink. Embroidered patches. + +Good news travels fast. + +It was written on the black-board when I got to Ms Galvez's Social Studies class. We all sat at our desks, smiling at it. It seemed to smile back. There was something profoundly cheering about the idea that we could all trust each other, that the enemy could be identified. I knew it wasn't entirely true, but it wasn't entirely false either. + +Ms Galvez came in and patted her hair and set down her SchoolBook on her desk and powered it up. She picked up her chalk and turned around to face the board. We all laughed. Good-naturedly, but we laughed. + +She turned around and was laughing too. "Inflation has hit the nation's slogan-writers, it seems. How many of you know where this phrase comes from?" + +We looked at each other. "Hippies?" someone said, and we laughed. Hippies are all over San Francisco, both the old stoner kinds with giant skanky beards and tie-dyes, and the new kind, who are more into dress-up and maybe playing hacky-sack than protesting anything. + +"Well, yes, hippies. But when we think of hippies these days, we just think of the clothes and the music. Clothes and music were incidental to the main part of what made that era, the sixties, important. + +"You've heard about the civil rights movement to end segregation, white and black kids like you riding buses into the South to sign up black voters and protest against official state racism. California was one of the main places where the civil rights leaders came from. We've always been a little more political than the rest of the country, and this is also a part of the country where black people have been able to get the same union factory jobs as white people, so they were a little better off than their cousins in the southland. + +"The students at Berkeley sent a steady stream of freedom riders south, and they recruited them from information tables on campus, at Bancroft and Telegraph Avenue. You've probably seen that there are still tables there to this day. + +"Well, the campus tried to shut them down. The president of the university banned political organizing on campus, but the civil rights kids wouldn't stop. The police tried to arrest a guy who was handing out literature from one of these tables, and they put him in a van, but 3,000 students surrounded the van and refused to let it budge. They wouldn't let them take this kid to jail. They stood on top of the van and gave speeches about the First Amendment and Free Speech. + +"That galvanized the Free Speech Movement. That was the start of the hippies, but it was also where more radical student movements came from. Black power groups like the Black Panthers -- and later gay rights groups like the Pink Panthers, too. Radical women's groups, even 'lesbian separatists' who wanted to abolish men altogether! And the Yippies. Anyone ever hear of the Yippies?" + +"Didn't they levitate the Pentagon?" I said. I'd once seen a documentary about this. + +She laughed. "I forgot about that, but yes, that was them! Yippies were like very political hippies, but they weren't serious the way we think of politics these days. They were very playful. Pranksters. They threw money into the New York Stock Exchange. They circled the Pentagon with hundreds of protestors and said a magic spell that was supposed to levitate it. They invented a fictional kind of LSD that you could spray onto people with squirt-guns and shot each other with it and pretended to be stoned. They were funny and they made great TV -- one Yippie, a clown called Wavy Gravy, used to get hundreds of protestors to dress up like Santa Claus so that the cameras would show police officers arresting and dragging away Santa on the news that night -- and they mobilized a lot of people. + +"Their big moment was the Democratic National Convention in 1968, where they called for demonstrations to protest the Vietnam War. Thousands of demonstrators poured into Chicago, slept in the parks, and picketed every day. They had lots of bizarre stunts that year, like running a pig called Pigasus for the presidential nomination. The police and the demonstrators fought in the streets -- they'd done that many times before, but the Chicago cops didn't have the smarts to leave the reporters alone. They beat up the reporters, and the reporters retaliated by finally showing what really went on at these demonstrations, so the whole country watched their kids being really savagely beaten down by the Chicago police. They called it a 'police riot.' + +"The Yippies loved to say, 'Never trust anyone over 30.' They meant that people who were born before a certain time, when America had been fighting enemies like the Nazis, could never understand what it meant to love your country enough to refuse to fight the Vietnamese. They thought that by the time you hit 30, your attitudes would be frozen and you couldn't ever understand why the kids of the day were taken to the streets, dropping out, freaking out. + +"San Francisco was ground zero for this. Revolutionary armies were founded here. Some of them blew up buildings or robbed banks for their cause. A lot of those kids grew up to be more or less normal, while others ended up in jail. Some of the university dropouts did amazing things -- for example, Steve Jobs and Steve Wozniak, who founded Apple Computers and invented the PC." + +I was really getting into this. I knew a little of it, but I'd never heard it told like this. Or maybe it had never mattered as much as it did now. Suddenly, those lame, solemn, grown-up street demonstrations didn't seem so lame after all. Maybe there was room for that kind of action in the Xnet movement. + +I put my hand up. "Did they win? Did the Yippies win?" + +She gave me a long look, like she was thinking it over. No one said a word. We all wanted to hear the answer. + +"They didn't lose," she said. "They kind of imploded a little. Some of them went to jail for drugs or other things. Some of them changed their tunes and became yuppies and went on the lecture circuit telling everyone how stupid they'd been, talking about how good greed was and how dumb they'd been. + +"But they did change the world. The war in Vietnam ended, and the kind of conformity and unquestioning obedience that people had called patriotism went out of style in a big way. Black rights, women's rights and gay rights came a long way. Chicano rights, rights for disabled people, the whole tradition of civil liberties was created or strengthened by these people. Today's protest movement is the direct descendant of those struggles." + +"I can't believe you're talking about them like this," Charles said. He was leaning so far in his seat he was half standing, and his sharp, skinny face had gone red. He had wet, large eyes and big lips, and when he got excited he looked a little like a fish. + +Ms Galvez stiffened a little, then said, "Go on, Charles." + +"You've just described terrorists. Actual terrorists. They blew up buildings, you said. They tried to destroy the stock exchange. They beat up cops, and stopped cops from arresting people who were breaking the law. They attacked us!" + +Ms Galvez nodded slowly. I could tell she was trying to figure out how to handle Charles, who really seemed like he was ready to pop. "Charles raises a good point. The Yippies weren't foreign agents, they were American citizens. When you say 'They attacked us,' you need to figure out who 'they' and 'us' are. When it's your fellow countrymen --" + +"Crap!" he shouted. He was on his feet now. "We were at war then. These guys were giving aid and comfort to the enemy. It's easy to tell who's us and who's them: if you support America, you're us. If you support the people who are shooting at Americans, you're /{them}/." + +"Does anyone else want to comment on this?" + +Several hands shot up. Ms Galvez called on them. Some people pointed out that the reason that the Vietnamese were shooting at Americans is that the Americans had flown to Vietnam and started running around the jungle with guns. Others thought that Charles had a point, that people shouldn't be allowed to do illegal things. + +Everyone had a good debate except Charles, who just shouted at people, interrupting them when they tried to get their points out. Ms Galvez tried to get him to wait for his turn a couple times, but he wasn't having any of it. + +I was looking something up on my SchoolBook, something I knew I'd read. + +I found it. I stood up. Ms Galvez looked expectantly at me. The other people followed her gaze and went quiet. Even Charles looked at me after a while, his big wet eyes burning with hatred for me. + +"I wanted to read something," I said. "It's short. 'Governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'" + +1~ Chapter 12 + +_1 /{ [This chapter is dedicated to Forbidden Planet,~{ Forbidden Planet, UK, Dublin and New York City: http://www.forbiddenplanet.co.uk }~ the British chain of science fiction and fantasy books, comics, toys and videos. Forbidden Planet has stores up and down the UK, and also sports outposts in Manhattan and Dublin, Ireland. It's dangerous to set foot in a Forbidden Planet -- rarely do I escape with my wallet intact. Forbidden Planet really leads the pack in bringing the gigantic audience for TV and movie science fiction into contact with science fiction books -- something that's absolutely critical to the future of the field.] }/ + +Ms Galvez's smile was wide. + +"Does anyone know what that comes from?" + +A bunch of people chorused, "The Declaration of Independence." + +I nodded. + +"Why did you read that to us, Marcus?" + +"Because it seems to me that the founders of this country said that governments should only last for so long as we believe that they're working for us, and if we stop believing in them, we should overthrow them. That's what it says, right?" + +Charles shook his head. "That was hundreds of years ago!" he said. "Things are different now!" + +"What's different?" + +"Well, for one thing, we don't have a king anymore. They were talking about a government that existed because some old jerk's great-great-great-grandfather believed that God put him in charge and killed everyone who disagreed with him. We have a democratically elected government --" + +"I didn't vote for them," I said. + +"So that gives you the right to blow up a building?" + +"What? Who said anything about blowing up a building? The Yippies and hippies and all those people believed that the government no longer listened to them -- look at the way people who tried to sign up voters in the South were treated! They were beaten up, arrested --" + +"Some of them were killed," Ms Galvez said. She held up her hands and waited for Charles and me to sit down. "We're almost out of time for today, but I want to commend you all on one of the most interesting classes I've ever taught. This has been an excellent discussion and I've learned much from you all. I hope you've learned from each other, too. Thank you all for your contributions. + +"I have an extra-credit assignment for those of you who want a little challenge. I'd like you to write up a paper comparing the political response to the anti-war and civil rights movements in the Bay Area to the present day civil rights responses to the War on Terror. Three pages minimum, but take as long as you'd like. I'm interested to see what you come up with." + +The bell rang a moment later and everyone filed out of the class. I hung back and waited for Ms Galvez to notice me. + +"Yes, Marcus?" + +"That was amazing," I said. "I never knew all that stuff about the sixties." + +"The seventies, too. This place has always been an exciting place to live in politically charged times. I really liked your reference to the Declaration -- that was very clever." + +"Thanks," I said. "It just came to me. I never really appreciated what those words all meant before today." + +"Well, those are the words every teacher loves to hear, Marcus," she said, and shook my hand. "I can't wait to read your paper." + +# + +I bought the Emma Goldman poster on the way home and stuck it up over my desk, tacked over a vintage black-light poster. I also bought a NEVER TRUST t-shirt that had a photoshop of Grover and Elmo kicking the grownups Gordon and Susan off Sesame Street. It made me laugh. I later found out that there had already been about six photoshop contests for the slogan online in places like Fark and Worth1000 and B3ta and there were hundreds of ready-made pics floating around to go on whatever merch someone churned out. + +Mom raised an eyebrow at the shirt, and Dad shook his head and lectured me about not looking for trouble. I felt a little vindicated by his reaction. + +Ange found me online again and we IM-flirted until late at night again. The white van with the antennas came back and I switched off my Xbox until it had passed. We'd all gotten used to doing that. + +Ange was really excited by this party. It looked like it was going to be monster. There were so many bands signed up they were talking about setting up a B-stage for the secondary acts. + +> How'd they get a permit to blast sound all night in that park? There's houses all around there + +> Per-mit? What is "per-mit"? Tell me more of your hu-man per-mit. + +> Woah, it's illegal? + +> Um, hello? /{You're}/ worried about breaking the law? + +> Fair point + +> LOL + +I felt a little premonition of nervousness though. I mean, I was taking this perfectly awesome girl out on a date that weekend -- well, she was taking me, technically -- to an illegal rave being held in the middle of a busy neighborhood. + +It was bound to be interesting at least. + +# + +Interesting. + +People started to drift into Dolores Park through the long Saturday afternoon, showing up among the ultimate frisbee players and the dog-walkers. Some of them played frisbee or walked dogs. It wasn't really clear how the concert was going to work, but there were a lot of cops and undercovers hanging around. You could tell the undercovers because, like Zit and Booger, they had Castro haircuts and Nebraska physiques: tubby guys with short hair and untidy mustaches. They drifted around, looking awkward and uncomfortable in their giant shorts and loose-fitting shirts that no-doubt hung down to cover the chandelier of gear hung around their midriffs. + +Dolores Park is pretty and sunny, with palm trees, tennis courts, and lots of hills and regular trees to run around on, or hang out on. Homeless people sleep there at night, but that's true everywhere in San Francisco. + +I met Ange down the street, at the anarchist bookstore. That had been my suggestion. In hindsight, it was a totally transparent move to seem cool and edgy to this girl, but at the time I would have sworn that I picked it because it was a convenient place to meet up. She was reading a book called /{Up Against the Wall Motherf_____r}/ when I got there. + +"Nice," I said. "You kiss your mother with that mouth?" + +"Your mama don't complain," she said. "Actually, it's a history of a group of people like the Yippies, but from New York. They all used that word as their last names, like 'Ben M-F.' The idea was to have a group out there, making news, but with a totally unprintable name. Just to screw around with the news-media. Pretty funny, really." She put the book back on the shelf and now I wondered if I should hug her. People in California hug to say hello and goodbye all the time. Except when they don't. And sometimes they kiss on the cheek. It's all very confusing. + +She settled it for me by grabbing me in a hug and tugging my head down to her, kissing me hard on the cheek, then blowing a fart on my neck. I laughed and pushed her away. + +"You want a burrito?" I asked. + +"Is that a question or a statement of the obvious?" + +"Neither. It's an order." + +I bought some funny stickers that said THIS PHONE IS TAPPED which were the right size to put on the receivers on the pay phones that still lined the streets of the Mission, it being the kind of neighborhood where you got people who couldn't necessarily afford a cellphone. + +We walked out into the night air. I told Ange about the scene at the park when I left. + +"I bet they have a hundred of those trucks parked around the block," she said. "The better to bust you with." + +"Um." I looked around. "I sort of hoped that you would say something like, 'Aw, there's no chance they'll do anything about it.'" + +"I don't think that's really the idea. The idea is to put a lot of civilians in a position where the cops have to decide, are we going to treat these ordinary people like terrorists? It's a little like the jamming, but with music instead of gadgets. You jam, right?" + +Sometimes I forget that all my friends don't know that Marcus and M1k3y are the same person. "Yeah, a little," I said. + +"This is like jamming with a bunch of awesome bands." + +"I see." + +Mission burritos are an institution. They are cheap, giant and delicious. Imagine a tube the size of a bazooka shell, filled with spicy grilled meat, guacamole, salsa, tomatoes, refried beans, rice, onions and cilantro. It has the same relationship to Taco Bell that a Lamborghini has to a Hot Wheels car. + +There are about two hundred Mission burrito joints. They're all heroically ugly, with uncomfortable seats, minimal decor -- faded Mexican tourist office posters and electrified framed Jesus and Mary holograms -- and loud mariachi music. The thing that distinguishes them, mostly, is what kind of exotic meat they fill their wares with. The really authentic places have brains and tongue, which I never order, but it's nice to know it's there. + +The place we went to had both brains and tongue, which we didn't order. I got carne asada and she got shredded chicken and we each got a big cup of horchata. + +As soon as we sat down, she unrolled her burrito and took a little bottle out of her purse. It was a little stainless-steel aerosol canister that looked for all the world like a pepper-spray self-defense unit. She aimed it at her burrito's exposed guts and misted them with a fine red oily spray. I caught a whiff of it and my throat closed and my eyes watered. + +"What the hell are you doing to that poor, defenseless burrito?" + +She gave me a wicked smile. "I'm a spicy food addict," she said. "This is capsaicin oil in a mister." + +"Capsaicin --" + +"Yeah, the stuff in pepper spray. This is like pepper spray but slightly more dilute. And way more delicious. Think of it as Spicy Cajun Visine if it helps." + +My eyes burned just thinking of it. + +"You're kidding," I said. "You are so not going to eat that." + +Her eyebrows shot up. "That sounds like a challenge, sonny. You just watch me." + +She rolled the burrito up as carefully as a stoner rolling up a joint, tucking the ends in, then re-wrapping it in tinfoil. She peeled off one end and brought it up to her mouth, poised with it just before her lips. + +Right up to the time she bit into it, I couldn't believe that she was going to do it. I mean, that was basically an anti-personnel weapon she'd just slathered on her dinner. + +She bit into it. Chewed. Swallowed. Gave every impression of having a delicious dinner. + +"Want a bite?" she said, innocently. + +"Yeah," I said. I like spicy food. I always order the curries with four chilies next to them on the menu at the Pakistani places. + +I peeled back more foil and took a big bite. + +Big mistake. + +You know that feeling you get when you take a big bite of horseradish or wasabi or whatever, and it feels like your sinuses are closing at the same time as your windpipe, filling your head with trapped, nuclear-hot air that tries to batter its way out through your watering eyes and nostrils? That feeling like steam is about to pour out of your ears like a cartoon character? + +This was a lot worse. + +This was like putting your hand on a hot stove, only it's not your hand, it's the entire inside of your head, and your esophagus all the way down to your stomach. My entire body sprang out in a sweat and I choked and choked. + +Wordlessly, she passed me my horchata and I managed to get the straw into my mouth and suck hard on it, gulping down half of it in one go. + +"So there's a scale, the Scoville scale, that we chili-fanciers use to talk about how spicy a pepper is. Pure capsaicin is about 15 million Scovilles. Tabasco is about 50,000. Pepper spray is a healthy three million. This stuff is a puny 200,000, about as hot as a mild Scotch Bonnet Pepper. I worked up to it in about a year. Some of the real hardcore can get up to a million or so, twenty times hotter than Tabasco. That's pretty freaking hot. At Scoville temperatures like that, your brain gets totally awash in endorphins. It's a better body-stone than hash. And it's good for you." + +I was getting my sinuses back now, able to breathe without gasping. + +"Of course, you get a ferocious ring of fire when you go to the john," she said, winking at me. + +Yowch. + +"You are insane," I said. + +"Fine talk from a man whose hobby is building and smashing laptops," she said. + +"Touche," I said and touched my forehead. + +"Want some?" She held out her mister. + +"Pass," I said, quickly enough that we both laughed. + +When we left the restaurant and headed for Dolores park, she put her arm around my waist and I found that she was just the right height for me to put my arm around her shoulders. That was new. I'd never been a tall guy, and the girls I'd dated had all been my height -- teenaged girls grow faster than guys, which is a cruel trick of nature. It was nice. It felt nice. + +We turned the corner on 20th Street and walked up toward Dolores. Before we'd taken a single step, we could feel the buzz. It was like the hum of a million bees. There were lots of people streaming toward the park, and when I looked toward it, I saw that it was about a hundred times more crowded than it had been when I went to meet Ange. + +That sight made my blood run hot. It was a beautiful cool night and we were about to party, really party, party like there was no tomorrow. "Eat drink and be merry, for tomorrow we die." + +Without saying anything we both broke into a trot. There were lots of cops, with tense faces, but what the hell were they going to do? There were a /{lot}/ of people in the park. I'm not so good at counting crowds. The papers later quoted organizers as saying there were 20,000 people; the cops said 5,000. Maybe that means there were 12,500. + +Whatever. It was more people than I'd ever stood among, as part of an unscheduled, unsanctioned, /{illegal}/ event. + +We were among them in an instant. I can't swear to it, but I don't think there was anyone over 25 in that press of bodies. Everyone was smiling. Some young kids were there, 10 or 12, and that made me feel better. No one would do anything too stupid with kids that little in the crowd. No one wanted to see little kids get hurt. This was just going to be a glorious spring night of celebration. + +I figured the thing to do was push in towards the tennis courts. We threaded our way through the crowd, and to stay together we took each other's hands. Only staying together didn't require us to intertwine fingers. That was strictly for pleasure. It was very pleasurable. + +The bands were all inside the tennis courts, with their guitars and mixers and keyboards and even a drum kit. Later, on Xnet, I found a Flickr stream of them smuggling all this stuff in, piece by piece, in gym bags and under their coats. Along with it all were huge speakers, the kind you see in automotive supply places, and among them, a stack of...car batteries. I laughed. Genius! That was how they were going to power their stacks. From where I stood, I could see that they were cells from a hybrid car, a Prius. Someone had gutted an eco-mobile to power the night's entertainment. The batteries continued outside the courts, stacked up against the fence, tethered to the main stack by wires threaded through the chain-link. I counted -- 200 batteries! Christ! Those things weighed a ton, too. + +There's no way they organized this without email and wikis and mailing lists. And there's no way people this smart would have done that on the public Internet. This had all taken place on the Xnet, I'd bet my boots on it. + +We just kind of bounced around in the crowd for a while as the bands tuned up and conferred with one another. I saw Trudy Doo from a distance, in the tennis courts. She looked like she was in a cage, like a pro wrestler. She was wearing a torn wife-beater and her hair was in long, fluorescent pink dreads down to her waist. She was wearing army camouflage pants and giant gothy boots with steel over-toes. As I watched, she picked up a heavy motorcycle jacket, worn as a catcher's mitt, and put it on like armor. It probably was armor, I realized. + +I tried to wave to her, to impress Ange I guess, but she didn't see me and I kind of looked like a spazz so I stopped. The energy in the crowd was amazing. You hear people talk about "vibes" and "energy" for big groups of people, but until you've experienced it, you probably think it's just a figure of speech. + +It's not. It's the smiles, infectious and big as watermelons, on every face. Everyone bopping a little to an unheard rhythm, shoulders rocking. Rolling walks. Jokes and laughs. The tone of every voice tight and excited, like a firework about to go off. And you can't help but be a part of it. Because you are. + +By the time the bands kicked off, I was utterly stoned on crowd-vibe. The opening act was some kind of Serbian turbo-folk, which I couldn't figure out how to dance to. I know how to dance to exactly two kinds of music: trance (shuffle around and let the music move you) and punk (bash around and mosh until you get hurt or exhausted or both). The next act was Oakland hip-hoppers, backed by a thrash metal band, which is better than it sounds. Then some bubble-gum pop. Then Speedwhores took the stage, and Trudy Doo stepped up to the mic. + +"My name is Trudy Doo and you're an idiot if you trust me. I'm thirty two and it's too late for me. I'm lost. I'm stuck in the old way of thinking. I still take my freedom for granted and let other people take it away from me. You're the first generation to grow up in Gulag America, and you know what your freedom is worth to the last goddamned cent!" + +The crowd roared. She was playing fast little skittery nervous chords on her guitar and her bass player, a huge fat girl with a dykey haircut and even bigger boots and a smile you could open beer bottles with was laying it down fast and hard already. I wanted to bounce. I bounced. Ange bounced with me. We were sweating freely in the evening, which reeked of perspiration and pot smoke. Warm bodies crushed in on all sides of us. They bounced too. + +"Don't trust anyone over 25!" she shouted. + +We roared. We were one big animal throat, roaring. + +"Don't trust anyone over 25!" + +"/{Don't trust anyone over 25!}/" + +"Don't trust anyone over 25!" + +"/{Don't trust anyone over 25!}/" + +"Don't trust anyone over 25!" + +"/{Don't trust anyone over 25!}/" + +She banged some hard chords on her guitar and the other guitarist, a little pixie of a girl whose face bristled with piercings, jammed in, going wheedle-dee-wheedle-dee-dee up high, past the twelfth fret. + +"It's our goddamned city! It's our goddamned country. No terrorist can take it from us for so long as we're free. Once we're not free, the terrorists win! Take it back! Take it back! You're young enough and stupid enough not to know that you can't possibly win, so you're the only ones who can lead us to victory! *Take it back!" + +"TAKE IT BACK!" we roared. She jammed down hard on her guitar. We roared the note back and then it got really really LOUD. + +# + +I danced until I was so tired I couldn't dance another step. Ange danced alongside of me. Technically, we were rubbing our sweaty bodies against each other for several hours, but believe it or not, I totally wasn't being a horn-dog about it. We were dancing, lost in the godbeat and the thrash and the screaming -- TAKE IT BACK! TAKE IT BACK! + +When I couldn't dance anymore, I grabbed her hand and she squeezed mine like I was keeping her from falling off a building. She dragged me toward the edge of the crowd, where it got thinner and cooler. Out there, on the edge of Dolores Park, we were in the cool air and the sweat on our bodies went instantly icy. We shivered and she threw her arms around my waist. "Warm me," she commanded. I didn't need a hint. I hugged her back. Her heart was an echo of the fast beats from the stage -- breakbeats now, fast and furious and wordless. + +She smelled of sweat, a sharp tang that smelled great. I knew I smelled of sweat too. My nose was pointed into the top of her head, and her face was right at my collarbone. She moved her hands to my neck and tugged. + +"Get down here, I didn't bring a stepladder," is what she said and I tried to smile, but it's hard to smile when you're kissing. + +Like I said, I'd kissed three girls in my life. Two of them had never kissed anyone before. One had been dating since she was 12. She had issues. + +None of them kissed like Ange. She made her whole mouth soft, like the inside of a ripe piece of fruit, and she didn't jam her tongue in my mouth, but slid it in there, and sucked my lips into her mouth at the same time, so it was like my mouth and hers were merging. I heard myself moan and I grabbed her and squeezed her harder. + +Slowly, gently, we lowered ourselves to the grass. We lay on our sides and clutched each other, kissing and kissing. The world disappeared so there was only the kiss. + +My hands found her butt, her waist. The edge of her t-shirt. Her warm tummy, her soft navel. They inched higher. She moaned too. + +"Not here," she said. "Let's move over there." She pointed across the street at the big white church that gives Mission Dolores Park and the Mission its name. Holding hands, moving quickly, we crossed to the church. It had big pillars in front of it. She put my back up against one of them and pulled my face down to hers again. My hands went quickly and boldly back to her shirt. I slipped them up her front. + +"It undoes in the back," she whispered into my mouth. I had a boner that could cut glass. I moved my hands around to her back, which was strong and broad, and found the hook with my fingers, which were trembling. I fumbled for a while, thinking of all those jokes about how bad guys are at undoing bras. I was bad at it. Then the hook sprang free. She gasped into my mouth. I slipped my hands around, feeling the wetness of her armpits -- which was sexy and not at all gross for some reason -- and then brushed the sides of her breasts. + +That's when the sirens started. + +They were louder than anything I'd ever heard. A sound like a physical sensation, like something blowing you off your feet. A sound as loud as your ears could process, and then louder. + +"DISPERSE IMMEDIATELY," a voice said, like God rattling in my skull. + +"THIS IS AN ILLEGAL GATHERING. DISPERSE IMMEDIATELY." + +The band had stopped playing. The noise of the crowd across the street changed. It got scared. Angry. + +I heard a click as the PA system of car-speakers and car-batteries in the tennis courts powered up. + +"TAKE IT BACK!" + +It was a defiant yell, like a sound shouted into the surf or screamed off a cliff. + +"TAKE IT BACK!" + +The crowd /{growled}/, a sound that made the hairs on the back of my neck stand up. + +"/{TAKE IT BACK}/!" they chanted. "TAKE IT BACK TAKE IT BACK TAKE IT BACK!" + +The police moved in in lines, carrying plastic shields, wearing Darth Vader helmets that covered their faces. Each one had a black truncheon and infra-red goggles. They looked like soldiers out of some futuristic war movie. They took a step forward in unison and every one of them banged his truncheon on his shield, a cracking noise like the earth splitting. Another step, another crack. They were all around the park and closing in now. + +"DISPERSE IMMEDIATELY," the voice of God said again. There were helicopters overhead now. No floodlights, though. The infrared goggles, right. Of course. They'd have infrared scopes in the sky, too. I pulled Ange back against the doorway of the church, tucking us back from the cops and the choppers. + +"TAKE IT BACK!" the PA roared. It was Trudy Doo's rebel yell and I heard her guitar thrash out some chords, then her drummer playing, then that big deep bass. + +"TAKE IT BACK!" the crowd answered, and they boiled out of the park at the police lines. + +I've never been in a war, but now I think I know what it must be like. What it must be like when scared kids charge across a field at an opposing force, knowing what's coming, running anyway, screaming, hollering. + +"DISPERSE IMMEDIATELY," the voice of God said. It was coming from trucks parked all around the park, trucks that had swung into place in the last few seconds. + +That's when the mist fell. It came out of the choppers, and we just caught the edge of it. It made the top of my head feel like it was going to come off. It made my sinuses feel like they were being punctured with ice-picks. It made my eyes swell and water, and my throat close. + +Pepper spray. Not 200 thousand Scovilles. A million and a half. They'd gassed the crowd. + +I didn't see what happened next, but I heard it, over the sound of both me and Ange choking and holding each other. First the choking, retching sounds. The guitar and drums and bass crashed to a halt. Then coughing. + +Then screaming. + +The screaming went on for a long time. When I could see again, the cops had their scopes up on their foreheads and the choppers were flooding Dolores Park with so much light it looked like daylight. Everyone was looking at the Park, which was good news, because when the lights went up like that, we were totally visible. + +"What do we do?" Ange said. Her voice was tight, scared. I didn't trust myself to speak for a moment. I swallowed a few times. + +"We walk away," I said. "That's all we can do. Walk away. Like we were just passing by. Down to Dolores and turn left and up towards 16th Street. Like we're just passing by. Like this is none of our business." + +"That'll never work," she said. + +"It's all I've got." + +"You don't think we should try to run for it?" + +"No," I said. "If we run, they'll chase us. Maybe if we walk, they'll figure we haven't done anything and let us alone. They have a lot of arrests to make. They'll be busy for a long time." + +The park was rolling with bodies, people and adults clawing at their faces and gasping. The cops dragged them by the armpits, then lashed their wrists with plastic cuffs and tossed them into the trucks like rag-dolls. + +"OK?" I said. + +"OK," she said. + +And that's just what we did. Walked, holding hands, quickly and business-like, like two people wanting to avoid whatever trouble someone else was making. The kind of walk you adopt when you want to pretend you can't see a panhandler, or don't want to get involved in a street-fight. + +It worked. + +We reached the corner and turned and kept going. Neither of us dared to speak for two blocks. Then I let out a gasp of air I hadn't know I'd been holding in. + +We came to 16th Street and turned down toward Mission Street. Normally that's a pretty scary neighborhood at 2AM on a Saturday night. That night it was a relief -- same old druggies and hookers and dealers and drunks. No cops with truncheons, no gas. + +"Um," I said as we breathed in the night air. "Coffee?" + +"Home," she said. "I think home for now. Coffee later." + +"Yeah," I agreed. She lived up in Hayes Valley. I spotted a taxi rolling by and I hailed it. That was a small miracle -- there are hardly any cabs when you need them in San Francisco. + +"Have you got cabfare home?" + +"Yeah," she said. The cab-driver looked at us through his window. I opened the back door so he wouldn't take off. + +"Good night," I said. + +She put her hands behind my head and pulled my face toward her. She kissed me hard on the mouth, nothing sexual in it, but somehow more intimate for that. + +"Good night," she whispered in my ear, and slipped into the taxi. + +Head swimming, eyes running, a burning shame for having left all those Xnetters to the tender mercies of the DHS and the SFPD, I set off for home. + +# + +Monday morning, Fred Benson was standing behind Ms Galvez's desk. + +"Ms Galvez will no longer be teaching this class," he said, once we'd taken our seats. He had a self-satisfied note that I recognized immediately. On a hunch, I checked out Charles. He was smiling like it was his birthday and he'd been given the best present in the world. + +I put my hand up. + +"Why not?" + +"It's Board policy not to discuss employee matters with anyone except the employee and the disciplinary committee," he said, without even bothering to hide how much he enjoyed saying it. + +"We'll be beginning a new unit today, on national security. Your SchoolBooks have the new texts. Please open them and turn to the first screen." + +The opening screen was emblazoned with a DHS logo and the title: WHAT EVERY AMERICAN SHOULD KNOW ABOUT HOMELAND SECURITY. + +I wanted to throw my SchoolBook on the floor. + +# + +I'd made arrangements to meet Ange at a cafe in her neighborhood after school. I jumped on the BART and found myself sitting behind two guys in suits. They were looking at the San Francisco Chronicle, which featured a full-page post-mortem on the "youth riot" in Mission Dolores Park. They were tutting and clucking over it. Then one said to the other, "It's like they're brainwashed or something. Christ, were we ever that stupid?" + +I got up and moved to another seat. + +1~ Chapter 13 + +_1 /{ [This chapter is dedicated to Books-A-Million,~{ Books-A-Million http://www.booksamillion.com/ncom/books?&isbn=0765319853 }~ a chain of gigantic bookstores spread across the USA. I first encountered Books-A-Million while staying at a hotel in Terre Haute, Indiana (I was giving a speech at the Rose Hulman Institute of Technology later that day). The store was next to my hotel and I really needed some reading material -- I'd been on the road for a solid month and I'd read everything in my suitcase, and I had another five cities to go before I headed home. As I stared intently at the shelves, a clerk asked me if I needed any help. Now, I've worked at bookstores before, and a knowledgeable clerk is worth her weight in gold, so I said sure, and started to describe my tastes, naming authors I'd enjoyed. The clerk smiled and said, "I've got just the book for you," and proceeded to take down a copy of my first novel, Down and Out in the Magic Kingdom. I busted out laughing, introduced myself, and had an absolutely lovely chat about science fiction that almost made me late to give my speech!] }/ + +"They're total whores," Ange said, spitting the word out. "In fact, that's an insult to hardworking whores everywhere. They're, they're /{profiteers.}/" + +We were looking at a stack of newspapers we'd picked up and brought to the cafe. They all contained "reporting" on the party in Dolores Park and to a one, they made it sound like a drunken, druggy orgy of kids who'd attacked the cops. /{USA Today}/ described the cost of the "riot" and included the cost of washing away the pepper-spray residue from the gas-bombing, the rash of asthma attacks that clogged the city's emergency rooms, and the cost of processing the eight hundred arrested "rioters." + +No one was telling our side. + +"Well, the Xnet got it right, anyway," I said. I'd saved a bunch of the blogs and videos and photostreams to my phone and I showed them to her. They were first-hand accounts from people who'd been gassed, and beaten up. The video showed us all dancing, having fun, showed the peaceful political speeches and the chant of "Take It Back" and Trudy Doo talking about us being the only generation that could believe in fighting for our freedoms. + +"We need to make people know about this," she said. + +"Yeah," I said, glumly. "That's a nice theory." + +"Well, why do you think the press doesn't ever publish our side?" + +"You said it, they're whores." + +"Yeah, but whores do it for the money. They could sell more papers and commercials if they had a controversy. All they have now is a crime -- controversy is much bigger." + +"OK, point taken. So why don't they do it? Well, reporters can barely search regular blogs, let alone keep track of the Xnet. It's not as if that's a real adult-friendly place to be." + +"Yeah," she said. "Well, we can fix that, right?" + +"Huh?" + +"Write it all up. Put it in one place, with all the links. A single place where you can go that's intended for the press to find it and get the whole picture. Link it to the HOWTOs for Xnet. Internet users can get to the Xnet, provided they don't care about the DHS finding out what they've been surfing." + +"You think it'll work?" + +"Well, even if it doesn't, it's something positive to do." + +"Why would they listen to us, anyway?" + +"Who wouldn't listen to M1k3y?" + +I put down my coffee. I picked up my phone and slipped it into my pocket. I stood up, turned on my heel, and walked out of the cafe. I picked a direction at random and kept going. My face felt tight, the blood gone into my stomach, which churned. + +/{They know who you are,}/ I thought. /{They know who M1k3y is.}/ That was it. If Ange had figured it out, the DHS had too. I was doomed. I had known that since they let me go from the DHS truck, that someday they'd come and arrest me and put me away forever, send me to wherever Darryl had gone. + +It was all over. + +She nearly tackled me as I reached Market Street. She was out of breath and looked furious. + +"What the /{hell}/ is your problem, mister?" + +I shook her off and kept walking. It was all over. + +She grabbed me again. "Stop it, Marcus, you're scaring me. Come on, talk to me." + +I stopped and looked at her. She blurred before my eyes. I couldn't focus on anything. I had a mad desire to jump into the path of a Muni trolley as it tore past us, down the middle of the road. Better to die than to go back. + +"Marcus!" She did something I'd only seen people do in the movies. She slapped me, a hard crack across the face. "Talk to me, dammit!" + +I looked at her and put my hand to my face, which was stinging hard. + +"No one is supposed to know who I am," I said. "I can't put it any more simply. If you know, it's all over. Once other people know, it's all over." + +"Oh god, I'm sorry. Look, I only know because, well, because I blackmailed Jolu. After the party I stalked you a little, trying to figure out if you were the nice guy you seemed to be or a secret axe-murderer. I've known Jolu for a long time and when I asked him about you, he gushed like you were the Second Coming or something, but I could hear that there was something he wasn't telling me. I've known Jolu for a long time. He dated my older sister at computer camp when he was a kid. I have some really good dirt on him. I told him I'd go public with it if he didn't tell me." + +"So he told you." + +"No," she said. "He told me to go to hell. Then I told him something about me. Something I'd never told anyone else." + +"What?" + +She looked at me. Looked around. Looked back at me. "OK. I won't swear you to secrecy because what's the point? Either I can trust you or I can't. + +"Last year, I --" she broke off. "Last year, I stole the standardized tests and published them on the net. It was just a lark. I happened to be walking past the principal's office and I saw them in his safe, and the door was hanging open. I ducked into his office -- there were six sets of copies and I just put one into my bag and took off again. When I got home, I scanned them all and put them up on a Pirate Party server in Denmark." + +"That was /{you}/?" I said. + +She blushed. "Um. Yeah." + +"Holy crap!" I said. It had been huge news. The Board of Education said that its No Child Left Behind tests had cost tens of millions of dollars to produce and that they'd have to spend it all over again now that they'd had the leak. They called it "edu-terrorism." The news had speculated endlessly about the political motivations of the leaker, wondering if it was a teacher's protest, or a student, or a thief, or a disgruntled government contractor. + +"That was YOU?" + +"It was me," she said. + +"And you told Jolu this --" + +"Because I wanted him to be sure that I would keep the secret. If he knew /{my}/ secret, then he'd have something he could use to put me in jail if I opened my trap. Give a little, get a little. Quid pro quo, like in Silence of the Lambs." + +"And he told you." + +"No," she said. "He didn't." + +"But --" + +"Then I told him how into you I was. How I was planning to totally make an idiot of myself and throw myself at you. /{Then}/ he told me." + +I couldn't think of anything to say then. I looked down at my toes. She grabbed my hands and squeezed them. + +"I'm sorry I squeezed it out of him. It was your decision to tell me, if you were going to tell me at all. I had no business --" + +"No," I said. Now that I knew how she'd found out, I was starting to calm down. "No, it's good you know. /{You}/." + +"Me," she said. "Li'l ol' me." + +"OK, I can live with this. But there's one other thing." + +"What?" + +"There's no way to say this without sounding like a jerk, so I'll just say it. People who date each other -- or whatever it is we're doing now -- they split up. When they split up, they get angry at each other. Sometimes even hate each other. It's really cold to think about that happening between us, but you know, we've got to think about it." + +"I solemnly promise that there is nothing you could ever do to me that would cause me to betray your secret. Nothing. Screw a dozen cheerleaders in my bed while my mother watches. Make me listen to Britney Spears. Rip off my laptop, smash it with hammers and soak it in sea-water. I promise. Nothing. Ever." + +I whooshed out some air. + +"Um," I said. + +"Now would be a good time to kiss me," she said, and turned her face up. + +# + +M1k3y's next big project on the Xnet was putting together the ultimate roundup of reports of the DON'T TRUST party at Dolores Park. I put together the biggest, most bad-ass site I could, with sections showing the action by location, by time, by category -- police violence, dancing, aftermath, singing. I uploaded the whole concert. + +It was pretty much all I worked on for the rest of the night. And the next night. And the next. + +My mailbox overflowed with suggestions from people. They sent me dumps off their phones and their pocket-cameras. Then I got an email from a name I recognized -- Dr Eeevil (three "e"s), one of the prime maintainers of ParanoidLinux. + +> M1k3y + +> I have been watching your Xnet experiment with great interest. Here in Germany, we have much experience with what happens with a government that gets out of control. + +> One thing you should know is that every camera has a unique "noise signature" that can be used to later connect a picture with a camera. That means that the photos you're republishing on your site could potentially be used to identify the photographers, should they later be picked up for something else. + +> Luckily, it's not hard to strip out the signatures, if you care to. There's a utility on the ParanoidLinux distro you're using that does this -- it's called photonomous, and you'll find it in /usr/bin. Just read the man pages for documentation. It's simple though. + +> Good luck with what you're doing. Don't get caught. Stay free. Stay paranoid. + +> Dr Eeevil + +I de-fingerprintized all the photos I'd posted and put them back up, along with a note explaining what Dr Eeevil had told me, warning everyone else to do the same. We all had the same basic ParanoidXbox install, so we could all anonymize our pictures. There wasn't anything I could do about the photos that had already been downloaded and cached, but from now on we'd be smarter. + +That was all the thought I gave the matter that night, until I got down to breakfast the next morning and Mom had the radio on, playing the NPR morning news. + +"Arabic news agency Al-Jazeera is running pictures, video and first-hand accounts of last weekend's youth riot in Mission Dolores park," the announcer said as I was drinking a glass of orange juice. I managed not to spray it across the room, but I /{did}/ choke a little. + +"Al-Jazeera reporters claim that these accounts were published on the so-called 'Xnet,' a clandestine network used by students and Al-Quaeda sympathizers in the Bay Area. This network's existence has long been rumored, but today marks its first mainstream mention." + +Mom shook her head. "Just what we need," she said. "As if the police weren't bad enough. Kids running around, pretending to be guerrillas and giving them the excuse to really crack down." + +"The Xnet weblogs have carried hundreds of reports and multimedia files from young people who attended the riot and allege that they were gathered peacefully until the police attacked /{them}/. Here is one of those accounts. + +"'All we were doing was dancing. I brought my little brother. Bands played and we talked about freedom, about how we were losing it to these jerks who say they hate terrorists but who attack us though we're not terrorists we're Americans. I think they hate freedom, not us. + +"We danced and the bands played and it was all fun and good and then the cops started shouting at us to disperse. We all shouted take it back! Meaning take America back. The cops gassed us with pepper spray. My little brother is twelve. He missed three days of school. My stupid parents say it was my fault. How about the police? We pay them and they're supposed to protect us but they gassed us for no good reason, gassed us like they gas enemy soldiers.' + +"Similar accounts, including audio and video, can be found on Al-Jazeera's website and on the Xnet. You can find directions for accessing this Xnet on NPR's homepage." + +Dad came down. + +"Do you use the Xnet?" he said. He looked intensely at my face. I felt myself squirm. + +"It's for video-games," I said. "That's what most people use it for. It's just a wireless network. It's what everyone did with those free Xboxes they gave away last year." + +He glowered at me. "Games? Marcus, you don't realize it, but you're providing cover for people who plan on attacking and destroying this country. I don't want to see you using this Xnet. Not anymore. Do I make myself clear?" + +I wanted to argue. Hell, I wanted to shake him by the shoulders. But I didn't. I looked away. I said, "Sure, Dad." I went to school. + +# + +At first I was relieved when I discovered that they weren't going to leave Mr Benson in charge of my social studies class. But the woman they found to replace him was my worst nightmare. + +She was young, just about 28 or 29, and pretty, in a wholesome kind of way. She was blonde and spoke with a soft southern accent when she introduced herself to us as Mrs Andersen. That set off alarm bells right away. I didn't know /{any}/ women under the age of sixty that called themselves "Mrs." + +But I was prepared to overlook it. She was young, pretty, she sounded nice. She would be OK. + +She wasn't OK. + +"Under what circumstances should the federal government be prepared to suspend the Bill of Rights?" she said, turning to the blackboard and writing down a row of numbers, one through ten. + +"Never," I said, not waiting to be called on. This was easy. "Constitutional rights are absolute." + +"That's not a very sophisticated view." She looked at her seating-plan. "Marcus. For example, say a policeman conducts an improper search -- he goes beyond the stuff specified in his warrant. He discovers compelling evidence that a bad guy killed your father. It's the only evidence that exists. Should the bad guy go free?" + +I knew the answer to this, but I couldn't really explain it. "Yes," I said, finally. "But the police shouldn't conduct improper searches --" + +"Wrong," she said. "The proper response to police misconduct is disciplinary action against the police, not punishing all of society for one cop's mistake." She wrote "Criminal guilt" under point one on the board. + +"Other ways in which the Bill of Rights can be superseded?" + +Charles put his hand up. "Shouting fire in a crowded theater?" + +"Very good --" she consulted the seating plan -- "Charles. There are many instances in which the First Amendment is not absolute. Let's list some more of those." + +Charles put his hand up again. "Endangering a law enforcement officer." + +"Yes, disclosing the identity of an undercover policeman or intelligence officer. Very good." She wrote it down. "Others?" + +"National security," Charles said, not waiting for her to call on him again. "Libel. Obscenity. Corruption of minors. Child porn. Bomb-making recipes." Mrs Andersen wrote these down fast, but stopped at child porn. "Child porn is just a form of obscenity." + +I was feeling sick. This was not what I'd learned or believed about my country. I put my hand up. + +"Yes, Marcus?" + +"I don't get it. You're making it sound like the Bill of Rights is optional. It's the Constitution. We're supposed to follow it absolutely." + +"That's a common oversimplification," she said, giving me a fake smile. "But the fact of the matter is that the framers of the Constitution intended it to be a living document that was revised over time. They understood that the Republic wouldn't be able to last forever if the government of the day couldn't govern according to the needs of the day. They never intended the Constitution to be looked on like religious doctrine. After all, they came here fleeing religious doctrine." + +I shook my head. "What? No. They were merchants and artisans who were loyal to the King until he instituted policies that were against their interests and enforced them brutally. The religious refugees were way earlier." + +"Some of the Framers were descended from religious refugees," she said. + +"And the Bill of Rights isn't supposed to be something you pick and choose from. What the Framers hated was tyranny. That's what the Bill of Rights is supposed to prevent. They were a revolutionary army and they wanted a set of principles that everyone could agree to. Life, liberty and the pursuit of happiness. The right of people to throw off their oppressors." + +"Yes, yes," she said, waving at me. "They believed in the right of people to get rid of their Kings, but --" Charles was grinning and when she said that, he smiled even wider. + +"They set out the Bill of Rights because they thought that having absolute rights was better than the risk that someone would take them away. Like the First Amendment: it's supposed to protect us by preventing the government from creating two kinds of speech, allowed speech and criminal speech. They didn't want to face the risk that some jerk would decide that the things that he found unpleasant were illegal." + +She turned and wrote, "Life, liberty and the pursuit of happiness" on it. + +"We're getting a little ahead of the lesson, but you seem like an advanced group." The others laughed at this, nervously. + +"The role of government is to secure for citizens the rights of life, liberty and the pursuit of happiness. In that order. It's like a filter. If the government wants to do something that makes us a little unhappy, or takes away some of our liberty, it's OK, providing they're doing it to save our lives. That's why the cops can lock you up if they think you're a danger to yourself or others. You lose your liberty and happiness to protect life. If you've got life, you might get liberty and happiness later." + +Some of the others had their hands up. "Doesn't that mean that they can do anything they want, if they say it's to stop someone from hurting us in the future?" + +"Yeah," another kid said. "This sounds like you're saying that national security is more important than the Constitution." + +I was so proud of my fellow students then. I said, "How can you protect freedom by suspending the Bill of Rights?" + +She shook her head at us like we were being very stupid. "The 'revolutionary' founding fathers /{shot traitors}/ and spies. They didn't believe in absolute freedom, not when it threatened the Republic. Now you take these Xnet people --" + +I tried hard not to stiffen. + +"-- these so-called jammers who were on the news this morning. After this city was attacked by people who've declared war on this country, they set about sabotaging the security measures set up to catch the bad guys and prevent them from doing it again. They did this by endangering and inconveniencing their fellow citizens --" + +"They did it to show that our rights were being taken away in the name of protecting them!" I said. OK, I shouted. God, she had me so steamed. "They did it because the government was treating /{everyone}/ like a suspected terrorist." + +"So they wanted to prove that they shouldn't be treated like terrorists," Charles shouted back, "so they acted like terrorists? So they committed terrorism?" + +I boiled. + +"Oh for Christ's sake. Committed terrorism? They showed that universal surveillance was more dangerous than terrorism. Look at what happened in the park last weekend. Those people were dancing and listening to music. How is /{that}/ terrorism?" + +The teacher crossed the room and stood before me, looming over me until I shut up. "Marcus, you seem to think that nothing has changed in this country. You need to understand that the bombing of the Bay Bridge changed everything. Thousands of our friends and relatives lie dead at the bottom of the Bay. This is a time for national unity in the face of the violent insult our country has suffered --" + +I stood up. I'd had enough of this "everything has changed" crapola. "National unity? The whole point of America is that we're the country where dissent is welcome. We're a country of dissidents and fighters and university dropouts and free speech people." + +I thought of Ms Galvez's last lesson and the thousands of Berkeley students who'd surrounded the police-van when they tried to arrest a guy for distributing civil rights literature. No one tried to stop those trucks when they drove away with all the people who'd been dancing in the park. I didn't try. I was running away. + +Maybe everything /{had}/ changed. + +"I believe you know where Mr Benson's office is," she said to me. "You are to present yourself to him immediately. I will /{not}/ have my classes disrupted by disrespectful behavior. For someone who claims to love freedom of speech, you're certainly willing to shout down anyone who disagrees with you." + +I picked up my SchoolBook and my bag and stormed out. The door had a gas-lift, so it was impossible to slam, or I would have slammed it. + +I went fast to Mr Benson's office. Cameras filmed me as I went. My gait was recorded. The arphids in my student ID broadcast my identity to sensors in the hallway. It was like being in jail. + +"Close the door, Marcus," Mr Benson said. He turned his screen around so that I could see the video feed from the social studies classroom. He'd been watching. + +"What do you have to say for yourself?" + +"That wasn't teaching, it was /{propaganda}/. She told us that the Constitution didn't matter!" + +"No, she said it wasn't religious doctrine. And you attacked her like some kind of fundamentalist, proving her point. Marcus, you of all people should understand that everything changed when the bridge was bombed. Your friend Darryl --" + +"Don't you say a goddamned word about him," I said, the anger bubbling over. "You're not fit to talk about him. Yeah, I understand that everything's different now. We used to be a free country. Now we're not." + +"Marcus, do you know what 'zero-tolerance' means?" + +I backed down. He could expel me for "threatening behavior." It was supposed to be used against gang kids who tried to intimidate their teachers. But of course he wouldn't have any compunctions about using it on me. + +"Yes," I said. "I know what it means." + +"I think you owe me an apology," he said. + +I looked at him. He was barely suppressing his sadistic smile. A part of me wanted to grovel. It wanted to beg for his forgiveness for all my shame. I tamped that part down and decided that I would rather get kicked out than apologize. + +"Governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." I remembered it word for word. + +He shook his head. "Remembering things isn't the same as understanding them, sonny." He bent over his computer and made some clicks. His printer purred. He handed me a sheet of warm Board letterhead that said I'd been suspended for two weeks. + +"I'll email your parents now. If you are still on school property in thirty minutes, you'll be arrested for trespassing." + +I looked at him. + +"You don't want to declare war on me in my own school," he said. "You can't win that war. GO!" + +I left. + +1~ Chapter 14 + +_1 /{ [This chapter is dedicated to the incomparable Mysterious Galaxy in San Diego, California.~{ Mysterious Galaxy http://mysteriousgalaxy.booksense.com/NASApp/store/Product?s=showproduct&isbn=9780765319852 7051 Clairemont Mesa Blvd., Suite #302 San Diego, CA USA 92111 +1 858 268 4747 }~ The Mysterious Galaxy folks have had me in to sign books every time I've been in San Diego for a conference or to teach (the Clarion Writers' Workshop is based at UC San Diego in nearby La Jolla, CA), and every time I show up, they pack the house. This is a store with a loyal following of die-hard fans who know that they'll always be able to get great recommendations and great ideas at the store. In summer 2007, I took my writing class from Clarion down to the store for the midnight launch of the final Harry Potter book and I've never seen such a rollicking, awesomely fun party at a store.] }/ + +The Xnet wasn't much fun in the middle of the school-day, when all the people who used it were in school. I had the piece of paper folded in the back pocket of my jeans, and I threw it on the kitchen table when I got home. I sat down in the living room and switched on the TV. I never watched it, but I knew that my parents did. The TV and the radio and the newspapers were where they got all their ideas about the world. + +The news was terrible. There were so many reasons to be scared. American soldiers were dying all over the world. Not just soldiers, either. National guardsmen, who thought they were signing up to help rescue people from hurricanes, stationed overseas for years and years of a long and endless war. + +I flipped around the 24-hour news networks, one after another, a parade of officials telling us why we should be scared. A parade of photos of bombs going off around the world. + +I kept flipping and found myself looking at a familiar face. It was the guy who had come into the truck and spoken to Severe-Haircut woman when I was chained up in the back. Wearing a military uniform. The caption identified him as Major General Graeme Sutherland, Regional Commander, DHS. + +"I hold in my hands actual literature on offer at the so-called concert in Dolores Park last weekend." He held up a stack of pamphlets. There'd been lots of pamphleteers there, I remembered. Wherever you got a group of people in San Francisco, you got pamphlets. + +"I want you to look at these for a moment. Let me read you their titles. WITHOUT THE CONSENT OF THE GOVERNED: A CITIZEN'S GUIDE TO OVERTHROWING THE STATE. Here's one, DID THE SEPTEMBER 11TH BOMBINGS REALLY HAPPEN? And another, HOW TO USE THEIR SECURITY AGAINST THEM. This literature shows us the true purpose of the illegal gathering on Saturday night. This wasn't merely an unsafe gathering of thousands of people without proper precaution, or even toilets. It was a recruiting rally for the enemy. It was an attempt to corrupt children into embracing the idea that America shouldn't protect herself. + +"Take this slogan, DON'T TRUST ANYONE OVER 25. What better way to ensure that no considered, balanced, adult discussion is ever injected into your pro-terrorist message than to exclude adults, limiting your group to impressionable young people? + +"When police came on the scene, they found a recruitment rally for America's enemies in progress. The gathering had already disrupted the nights of hundreds of residents in the area, none of whom had been consulted in the planning of this all night rave party. + +"They ordered these people to disperse -- that much is visible on all the video -- and when the revelers turned to attack them, egged on by the musicians on stage, the police subdued them using non-lethal crowd control techniques. + +"The arrestees were ring-leaders and provocateurs who had led the thousands of impressionistic young people there to charge the police lines. 827 of them were taken into custody. Many of these people had prior offenses. More than 100 of them had outstanding warrants. They are still in custody. + +"Ladies and gentlemen, America is fighting a war on many fronts, but nowhere is she in more grave danger than she is here, at home. Whether we are being attacked by terrorists or those who sympathize with them." + +A reporter held up a hand and said, "General Sutherland, surely you're not saying that these children were terrorist sympathizers for attending a party in a park?" + +"Of course not. But when young people are brought under the influence of our country's enemies, it's easy for them to end up over their heads. Terrorists would love to recruit a fifth column to fight the war on the home front for them. If these were my children, I'd be gravely concerned." + +Another reporter chimed in. "Surely this is just an open air concert, General? They were hardly drilling with rifles." + +The General produced a stack of photos and began to hold them up. "These are pictures that officers took with infra-red cameras before moving in." He held them next to his face and paged through them one at a time. They showed people dancing really rough, some people getting crushed or stepped on. Then they moved into sex stuff by the trees, a girl with three guys, two guys necking together. "There were children as young as ten years old at this event. A deadly cocktail of drugs, propaganda and music resulted in dozens of injuries. It's a wonder there weren't any deaths." + +I switched the TV off. They made it look like it had been a riot. If my parents thought I'd been there, they'd have strapped me to my bed for a month and only let me out afterward wearing a tracking collar. + +Speaking of which, they were going to be /{pissed}/ when they found out I'd been suspended. + +# + +They didn't take it well. Dad wanted to ground me, but Mom and I talked him out of it. + +"You know that vice-principal has had it in for Marcus for years," Mom said. "The last time we met him you cursed him for an hour afterward. I think the word 'asshole' was mentioned repeatedly." + +Dad shook his head. "Disrupting a class to argue against the Department of Homeland Security --" + +"It's a social studies class, Dad," I said. I was beyond caring anymore, but I felt like if Mom was going to stick up for me, I should help her out. "We were talking about the DHS. Isn't debate supposed to be healthy?" + +"Look, son," he said. He'd taking to calling me "son" a lot. It made me feel like he'd stopped thinking of me as a person and switched to thinking of me as a kind of half-formed larva that needed to be guided out of adolescence. I hated it. "You're going to have to learn to live with the fact that we live in a different world today. You have every right to speak your mind of course, but you have to be prepared for the consequences of doing so. You have to face the fact that there are people who are hurting, who aren't going to want to argue the finer points of Constitutional law when their lives are at stake. We're in a lifeboat now, and once you're in the lifeboat, no one wants to hear about how mean the captain is being." + +I barely restrained myself from rolling my eyes. + +"I've been assigned two weeks of independent study, writing one paper for each of my subjects, using the city for my background -- a history paper, a social studies paper, an English paper, a physics paper. It beats sitting around at home watching television." + +Dad looked hard at me, like he suspected I was up to something, then nodded. I said goodnight to them and went up to my room. I fired up my Xbox and opened a word-processor and started to brainstorm ideas for my papers. Why not? It really was better than sitting around at home. + +# + +I ended up IMing with Ange for quite a while that night. She was sympathetic about everything and told me she'd help me with my papers if I wanted to meet her after school the next night. I knew where her school was -- she went to the same school as Van -- and it was all the way over in the East Bay, where I hadn't visited since the bombs went. + +I was really excited at the prospect of seeing her again. Every night since the party, I'd gone to bed thinking of two things: the sight of the crowd charging the police lines and the feeling of the side of her breast under her shirt as we leaned against the pillar. She was amazing. I'd never been with a girl as...aggressive as her before. It had always been me putting the moves on and them pushing me away. I got the feeling that Ange was as much of a horn-dog as I was. It was a tantalizing notion. + +I slept soundly that night, with exciting dreams of me and Ange and what we might do if we found ourselves in a secluded spot somewhere. + +The next day, I set out to work on my papers. San Francisco is a good place to write about. History? Sure, it's there, from the Gold Rush to the WWII shipyards, the Japanese internment camps, the invention of the PC. Physics? The Exploratorium has the coolest exhibits of any museum I've ever been to. I took a perverse satisfaction in the exhibits on soil liquefaction during big quakes. English? Jack London, Beat Poets, science fiction writers like Pat Murphy and Rudy Rucker. Social studies? The Free Speech Movement, Cesar Chavez, gay rights, feminism, anti-war movement... + +I've always loved just learning stuff for its own sake. Just to be smarter about the world around me. I could do that just by walking around the city. I decided I'd do an English paper about the Beats first. City Lights books had a great library in an upstairs room where Alan Ginsberg and his buddies had created their radical druggy poetry. The one we'd read in English class was /{Howl}/ and I would never forget the opening lines, they gave me shivers down my back: + +I saw the best minds of my generation destroyed by madness, starving hysterical naked, + +dragging themselves through the negro streets at dawn looking for an angry fix, + +angelheaded hipsters burning for the ancient heavenly connection to the starry dynamo in the machinery of night... + +I liked the way he ran those words all together, "starving hysterical naked." I knew how that felt. And "best minds of my generation" made me think hard too. It made me remember the park and the police and the gas falling. They busted Ginsberg for obscenity over Howl -- all about a line about gay sex that would hardly have caused us to blink an eye today. It made me happy somehow, knowing that we'd made some progress. That things had been even more restrictive than this before. + +I lost myself in the library, reading these beautiful old editions of the books. I got lost in Jack Kerouac's /{On the Road}/, a novel I'd been meaning to read for a long time, and a clerk who came up to check on me nodded approvingly and found me a cheap edition that he sold me for six bucks. + +I walked into Chinatown and had dim sum buns and noodles with hot-sauce that I had previously considered to be pretty hot, but which would never seem anything like hot ever again, not now that I'd had an Ange special. + +As the day wore on toward the afternoon, I got on the BART and switched to a San Mateo bridge shuttle bus to bring me around to the East Bay. I read my copy of /{On the Road}/ and dug the scenery whizzing past. /{On the Road}/ is a semi-autobiographical novel about Jack Kerouac, a druggy, hard-drinking writer who goes hitchhiking around America, working crummy jobs, howling through the streets at night, meeting people and parting ways. Hipsters, sad-faced hobos, con-men, muggers, scumbags and angels. There's not really a plot -- Kerouac supposedly wrote it in three weeks on a long roll of paper, stoned out of his mind -- only a bunch of amazing things, one thing happening after another. He makes friends with self-destructing people like Dean Moriarty, who get him involved in weird schemes that never really work out, but still it works out, if you know what I mean. + +There was a rhythm to the words, it was luscious, I could hear it being read aloud in my head. It made me want to lie down in the bed of a pickup truck and wake up in a dusty little town somewhere in the central valley on the way to LA, one of those places with a gas station and a diner, and just walk out into the fields and meet people and see stuff and do stuff. + +It was a long bus ride and I must have dozed off a little -- staying up late IMing with Ange was hard on my sleep-schedule, since Mom still expected me down for breakfast. I woke up and changed buses and before long, I was at Ange's school. + +She came bounding out of the gates in her uniform -- I'd never seen her in it before, it was kind of cute in a weird way, and reminded me of Van in her uniform. She gave me a long hug and a hard kiss on the cheek. + +"Hello you!" she said. + +"Hiya!" + +"Whatcha reading?" + +I'd been waiting for this. I'd marked the passage with a finger. "Listen: 'They danced down the streets like dingledodies, and I shambled after as I've been doing all my life after people who interest me, because the only people for me are the mad ones, the ones who are mad to live, mad to talk, mad to be saved, desirous of everything at the same time, the ones that never yawn or say a commonplace thing, but burn, burn, burn like fabulous yellow roman candles exploding like spiders across the stars and in the middle you see the blue centerlight pop and everybody goes "Awww!"'" + +She took the book and read the passage again for herself. "Wow, dingledodies! I love it! Is it all like this?" + +I told her about the parts I'd read, walking slowly down the sidewalk back toward the bus-stop. Once we turned the corner, she put her arm around my waist and I slung mine around her shoulder. Walking down the street with a girl -- my girlfriend? Sure, why not? -- talking about this cool book. It was heaven. Made me forget my troubles for a little while. + +"Marcus?" + +I turned around. It was Van. In my subconscious I'd expected this. I knew because my conscious mind wasn't remotely surprised. It wasn't a big school, and they all got out at the same time. I hadn't spoken to Van in weeks, and those weeks felt like months. We used to talk every day. + +"Hey, Van," I said. I suppressed the urge to take my arm off of Ange's shoulders. Van seemed surprised, but not angry, more ashen, shaken. She looked closely at the two of us. + +"Angela?" + +"Hey, Vanessa," Ange said. + +"What are you doing here?" + +"I came out to get Ange," I said, trying to keep my tone neutral. I was suddenly embarrassed to be seen with another girl. + +"Oh," Van said. "Well, it was nice to see you." + +"Nice to see you too, Vanessa," Ange said, swinging me around, marching me back toward the bus-stop. + +"You know her?" Ange said. + +"Yeah, since forever." + +"Was she your girlfriend?" + +"What? No! No way! We were just friends." + +"You /{were}/ friends?" + +I felt like Van was walking right behind us, listening in, though at the pace we were walking, she would have to be jogging to keep up. I resisted the temptation to look over my shoulder for as long as possible, then I did. There were lots of girls from the school behind us, but no Van. + +"She was with me and Jose-Luis and Darryl when we were arrested. We used to ARG together. The four of us, we were kind of best friends." + +"And what happened?" + +I dropped my voice. "She didn't like the Xnet," I said. "She thought we would get into trouble. That I'd get other people into trouble." + +"And that's why you stopped being friends?" + +"We just drifted apart." + +We walked a few steps. "You weren't, you know, boyfriend/girlfriend friends?" + +"No!" I said. My face was hot. I felt like I sounded like I was lying, even though I was telling the truth. + +Ange jerked us to a halt and studied my face. + +"Were you?" + +"No! Seriously! Just friends. Darryl and her -- well, not quite, but Darryl was so into her. There was no way --" + +"But if Darryl hadn't been into her, you would have, huh?" + +"No, Ange, no. Please, just believe me and let it go. Vanessa was a good friend and we're not anymore, and that upsets me, but I was never into her that way, all right? + +She slumped a little. "OK, OK. I'm sorry. I don't really get along with her is all. We've never gotten along in all the years we've known each other." + +Oh ho, I thought. This would be how it came to be that Jolu knew her for so long and I never met her; she had some kind of thing with Van and he didn't want to bring her around. + +She gave me a long hug and we kissed, and a bunch of girls passed us going /{woooo}/ and we straightened up and headed for the bus-stop. Ahead of us walked Van, who must have gone past while we were kissing. I felt like a complete jerk. + +Of course, she was at the stop and on the bus and we didn't say a word to each other, and I tried to make conversation with Ange all the way, but it was awkward. + +The plan was to stop for a coffee and head to Ange's place to hang out and "study," i.e. take turns on her Xbox looking at the Xnet. Ange's mom got home late on Tuesdays, which was her night for yoga class and dinner with her girls, and Ange's sister was going out with her boyfriend, so we'd have the place to ourselves. I'd been having pervy thoughts about it ever since we'd made the plan. + +We got to her place and went straight to her room and shut the door. Her room was kind of a disaster, covered with layers of clothes and notebooks and parts of PCs that would dig into your stocking feet like caltrops. Her desk was worse than the floor, piled high with books and comics, so we ended up sitting on her bed, which was OK by me. + +The awkwardness from seeing Van had gone away somewhat and we got her Xbox up and running. It was in the center of a nest of wires, some going to a wireless antenna she'd hacked into it and stuck to the window so she could tune in the neighbors' WiFi. Some went to a couple of old laptop screens she'd turned into standalone monitors, balanced on stands and bristling with exposed electronics. The screens were on both bedside tables, which was an excellent setup for watching movies or IMing from bed -- she could turn the monitors sidewise and lie on her side and they'd be right-side-up, no matter which side she lay on. + +We both knew what we were really there for, sitting side by side propped against the bedside table. I was trembling a little and super-conscious of the warmth of her leg and shoulder against mine, but I needed to go through the motions of logging into Xnet and seeing what email I'd gotten and so on. + +There was an email from a kid who liked to send in funny phone-cam videos of the DHS being really crazy -- the last one had been of them disassembling a baby's stroller after a bomb-sniffing dog had shown an interest in it, taking it apart with screwdrivers right on the street in the Marina while all these rich people walked past, staring at them and marveling at how weird it was. + +I'd linked to the video and it had been downloaded like crazy. He'd hosted it on the Internet Archive's Alexandria mirror in Egypt, where they'd host anything for free so long as you'd put it under the Creative Commons license, which let anyone remix it and share it. The US archive -- which was down in the Presidio, only a few minutes away -- had been forced to take down all those videos in the name of national security, but the Alexandria archive had split away into its own organization and was hosting anything that embarrassed the USA. + +This kid -- his handle was Kameraspie -- had sent me an even better video this time around. It was at the doorway to City Hall in Civic Center, a huge wedding cake of a building covered with statues in little archways and gilt leaves and trim. The DHS had a secure perimeter around the building, and Kameraspie's video showed a great shot of their checkpoint as a guy in an officer's uniform approached and showed his ID and put his briefcase on the X-ray belt. + +It was all OK until one of the DHS people saw something he didn't like on the X-ray. He questioned the General, who rolled his eyes and said something inaudible (the video had been shot from across the street, apparently with a homemade concealed zoom lens, so the audio was mostly of people walking past and traffic noises). + +The General and the DHS guys got into an argument, and the longer they argued, the more DHS guys gathered around them. Finally, the General shook his head angrily and waved his finger at the DHS guy's chest and picked up his briefcase and started to walk away. The DHS guys shouted at him, but he didn't slow. His body language really said, "I am totally, utterly pissed." + +Then it happened. The DHS guys ran after the general. Kameraspie slowed the video down here, so we could see, in frame-by-frame slo-mo, the general half-turning, his face all like, "No freaking way are you about to tackle me," then changing to horror as three of the giant DHS guards slammed into him, knocking him sideways, then catching him at the middle, like a career-ending football tackle. The general -- middle aged, steely grey hair, lined and dignified face -- went down like a sack of potatoes and bounced twice, his face slamming off the sidewalk and blood starting out of his nose. + +The DHS hog-tied the general, strapping him at ankles and wrists. The general was shouting now, really shouting, his face purpling under the blood streaming from his nose. Legs swished by in the tight zoom. Passing pedestrians looked at this guy in his uniform, getting tied up, and you could see from his face that this was the worst part, this was the ritual humiliation, the removal of dignity. The clip ended. + +"Oh my dear sweet Buddha," I said looking at the screen as it faded to black, starting the video again. I nudged Ange and showed her the clip. She watched wordless, jaw hanging down to her chest. + +"Post that," she said. "Post that post that post that post that!" + +I posted it. I could barely type as I wrote it up, describing what I'd seen, adding a note to see if anyone could identify the military man in the video, if anyone knew anything about this. + +I hit publish. + +We watched the video. We watched it again. + +My email pinged. + +> I totally recognize that dude -- you can find his bio on Wikipedia. He's General Claude Geist. He commanded the joint UN peacekeeping mission in Haiti. + +I checked the bio. There was a picture of the general at a press conference, and notes about his role in the difficult Haiti mission. It was clearly the same guy. + +I updated the post. + +Theoretically, this was Ange's and my chance to make out, but that wasn't what we ended up doing. We crawled the Xnet blogs, looking for more accounts of the DHS searching people, tackling people, invading them. This was a familiar task, the same thing I'd done with all the footage and accounts from the riots in the park. I started a new category on my blog for this, AbusesOfAuthority, and filed them away. Ange kept coming up with new search terms for me to try and by the time her mom got home, my new category had seventy posts, headlined by General Geist's City Hall takedown. + +# + +I worked on my Beat paper all the next day at home, reading the Kerouac and surfing the Xnet. I was planning on meeting Ange at school, but I totally wimped out at the thought of seeing Van again, so I texted her an excuse about working on the paper. + +There were all kinds of great suggestions for AbusesOfAuthority coming in; hundreds of little and big ones, pictures and audio. The meme was spreading. + +It spread. The next morning there were even more. Someone started a new blog called AbusesOfAuthority that collected hundreds more. The pile grew. We competed to find the juiciest stories, the craziest pictures. + +The deal with my parents was that I'd eat breakfast with them every morning and talk about the projects I was doing. They liked that I was reading Kerouac. It had been a favorite book of both of theirs and it turned out there was already a copy on the bookcase in my parents' room. My dad brought it down and I flipped through it. There were passages marked up with pen, dog-eared pages, notes in the margin. My dad had really loved this book. + +It made me remember a better time, when my Dad and I had been able to talk for five minutes without shouting at each other about terrorism, and we had a great breakfast talking about the way that the novel was plotted, all the crazy adventures. + +But the next morning at breakfast they were both glued to the radio. + +"Abuses of Authority -- it's the latest craze on San Francisco's notorious Xnet, and it's captured the world's attention. Called A-oh-A, the movement is composed of 'Little Brothers' who watch back against the Department of Homeland Security's anti-terrorism measures, documenting the failures and excesses. The rallying cry is a popular viral video clip of a General Claude Geist, a retired three-star general, being tackled by DHS officers on the sidewalk in front of City Hall. Geist hasn't made a statement on the incident, but commentary from young people who are upset with their own treatment has been fast and furious. + +"Most notable has been the global attention the movement has received. Stills from the Geist video have appeared on the front pages of newspapers in Korea, Great Britain, Germany, Egypt and Japan, and broadcasters around the world have aired the clip on prime-time news. The issue came to a head last night, when the British Broadcasting Corporation's National News Evening program ran a special report on the fact that no American broadcaster or news agency has covered this story. Commenters on the BBC's website noted that BBC America's version of the news did not carry the report." + +They brought on a couple of interviews: British media watchdogs, a Swedish Pirate Party kid who made jeering remarks about America's corrupt press, a retired American newscaster living in Tokyo, then they aired a short clip from Al-Jazeera, comparing the American press record and the record of the national news-media in Syria. + +I felt like my parents were staring at me, that they knew what I was doing. But when I cleared away my dishes, I saw that they were looking at each other. + +Dad was holding his coffee cup so hard his hands were shaking. Mom was looking at him. + +"They're trying to discredit us," Dad said finally. "They're trying to sabotage the efforts to keep us safe." + +I opened my mouth, but my mom caught my eye and shook her head. Instead I went up to my room and worked on my Kerouac paper. Once I'd heard the door slam twice, I fired up my Xbox and got online. + +> Hello M1k3y. This is Colin Brown. I'm a producer with the Canadian Broadcasting Corporation's news programme The National. We're doing a story on Xnet and have sent a reporter to San Francisco to cover it from there. Would you be interested in doing an interview to discuss your group and its actions? + +I stared at the screen. Jesus. They wanted to /{interview}/ me about "my group"? + +> Um thanks no. I'm all about privacy. And it's not "my group." But thanks for doing the story! + +A minute later, another email. + +> We can mask you and ensure your anonymity. You know that the Department of Homeland Security will be happy to provide their own spokesperson. I'm interested in getting your side. + +I filed the email. He was right, but I'd be crazy to do this. For all I knew, he /{was}/ the DHS. + +I picked up more Kerouac. Another email came in. Same request, different news-agency: KQED wanted to meet me and record a radio interview. A station in Brazil. The Australian Broadcasting Corporation. Deutsche Welle. All day, the press requests came in. All day, I politely turned them down. + +I didn't get much Kerouac read that day. + +# + +"Hold a press-conference," is what Ange said, as we sat in the cafe near her place that evening. I wasn't keen on going out to her school anymore, getting stuck on a bus with Van again. + +"What? Are you crazy?" + +"Do it in Clockwork Plunder. Just pick a trading post where there's no PvP allowed and name a time. You can login from here." + +PvP is player-versus-player combat. Parts of Clockwork Plunder were neutral ground, which meant that we could theoretically bring in a ton of noob reporters without worrying about gamers killing them in the middle of the press-conference. + +"I don't know anything about press conferences." + +"Oh, just google it. I'm sure someone's written an article on holding a successful one. I mean, if the President can manage it, I'm sure you can. He looks like he can barely tie his shoes without help." + +We ordered more coffee. + +"You are a very smart woman," I said. + +"And I'm beautiful," she said. + +"That too," I said. + +1~ Chapter 15 + +_1 /{ [This chapter is dedicated to Chapters/Indigo,~{ Chapters/Indigo: http://www.chapters.indigo.ca/books/Little-Brother-Cory-Doctorow/9780765319852-item.html }~ the national Canadian megachain. I was working at Bakka, the independent science fiction bookstore, when Chapters opened its first store in Toronto and I knew that something big was going on right away, because two of our smartest, best-informed customers stopped in to tell me that they'd been hired to run the science fiction section. From the start, Chapters raised the bar on what a big corporate bookstore could be, extending its hours, adding a friendly cafe and lots of seating, installing in-store self-service terminals and stocking the most amazing variety of titles.] }/ + +I blogged the press-conference even before I'd sent out the invitations to the press. I could tell that all these writers wanted to make me into a leader or a general or a supreme guerrilla commandant, and I figured one way of solving that would be to have a bunch of Xnetters running around answering questions too. + +Then I emailed the press. The responses ranged from puzzled to enthusiastic -- only the Fox reporter was "outraged" that I had the gall to ask her to play a game in order to appear on her TV show. The rest of them seemed to think that it would make a pretty cool story, though plenty of them wanted lots of tech support for signing onto the game + +I picked 8PM, after dinner. Mom had been bugging me about all the evenings I'd been spending out of the house until I finally spilled the beans about Ange, whereupon she came over all misty and kept looking at me like, my-little-boy's-growing-up. She wanted to meet Ange, and I used that as leverage, promising to bring her over the next night if I could "go to the movies" with Ange tonight. + +Ange's mom and sister were out again -- they weren't real stay-at-homes -- which left me and Ange alone in her room with her Xbox and mine. I unplugged one of her bedside screens and attached my Xbox to it so that we could both login at once. + +Both Xboxes were idle, logged into Clockwork Plunder. I was pacing. + +"It's going to be fine," she said. She glanced at her screen. "Patcheye Pete's Market has 600 players in it now!" We'd picked Patcheye Pete's because it was the market closest to the village square where new players spawned. If the reporters weren't already Clockwork Plunder players -- ha! -- then that's where they'd show up. In my blog post I'd asked people generally to hang out on the route between Patcheye Pete's and the spawn-gate and direct anyone who looked like a disoriented reporter over to Pete's. + +"What the hell am I going to tell them?" + +"You just answer their questions -- and if you don't like a question, ignore it. Someone else can answer it. It'll be fine." + +"This is insane." + +"This is perfect, Marcus. If you want to really screw the DHS, you have to embarrass them. It's not like you're going to be able to out-shoot them. Your only weapon is your ability to make them look like morons." + +I flopped on the bed and she pulled my head into her lap and stroked my hair. I'd been playing around with different haircuts before the bombing, dying it all kinds of funny colors, but since I'd gotten out of jail I couldn't be bothered. It had gotten long and stupid and shaggy and I'd gone into the bathroom and grabbed my clippers and buzzed it down to half an inch all around, which took zero effort to take care of and helped me to be invisible when I was out jamming and cloning arphids. + +I opened my eyes and stared into her big brown eyes behind her glasses. They were round and liquid and expressive. She could make them bug out when she wanted to make me laugh, or make them soft and sad, or lazy and sleepy in a way that made me melt into a puddle of horniness. + +That's what she was doing right now. + +I sat up slowly and hugged her. She hugged me back. We kissed. She was an amazing kisser. I know I've already said that, but it bears repeating. We kissed a lot, but for one reason or another we always stopped before it got too heavy. + +Now I wanted to go farther. I found the hem of her t-shirt and tugged. She put her hands over her head and pulled back a few inches. I knew that she'd do that. I'd known since the night in the park. Maybe that's why we hadn't gone farther -- I knew I couldn't rely on her to back off, which scared me a little. + +But I wasn't scared then. The impending press-conference, the fights with my parents, the international attention, the sense that there was a movement that was careening around the city like a wild pinball -- it made my skin tingle and my blood sing. + +And she was beautiful, and smart, and clever and funny, and I was falling in love with her. + +Her shirt slid off, her arching her back to help me get it over her shoulders. She reached behind her and did something and her bra fell away. I stared goggle-eyed, motionless and breathless, and then she grabbed /{my}/ shirt and pulled it over my head, grabbing me and pulling my bare chest to hers. + +We rolled on the bed and touched each other and ground our bodies together and groaned. She kissed all over my chest and I did the same to her. I couldn't breathe, I couldn't think, I could only move and kiss and lick and touch. + +We dared each other to go forward. I undid her jeans. She undid mine. I lowered her zipper, she did mine, and tugged my jeans off. I tugged off hers. A moment later we were both naked, except for my socks, which I peeled off with my toes. + +It was then that I caught sight of the bedside clock, which had long ago rolled onto the floor and lay there, glowing up at us. + +"Crap!" I yelped. "It starts in two minutes!" I couldn't freaking believe that I was about to stop what I was about to stop doing, when I was about to stop doing it. I mean, if you'd asked me, "Marcus, you are about to get laid for the firstest time EVAR, will you stop if I let off this nuclear bomb in the same room as you?" the answer would have been a resounding and unequivocal /{NO}/. + +And yet we stopped for this. + +She grabbed me and pulled my face to hers and kissed me until I thought I would pass out, then we both grabbed our clothes and more or less dressed, grabbing our keyboards and mice and heading for Patcheye Pete's. + +# + +You could easily tell who the press were: they were the noobs who played their characters like staggering drunks, weaving back and forth and up and down, trying to get the hang of it all, occasionally hitting the wrong key and offering strangers all or part of their inventory, or giving them accidental hugs and kicks. + +The Xnetters were easy to spot, too: we all played Clockwork Plunder whenever we had some spare time (or didn't feel like doing our homework), and we had pretty tricked-out characters with cool weapons and booby-traps on the keys sticking out of our backs that would cream anyone who tried to snatch them and leave us to wind down. + +When I appeared, a system status message displayed M1K3Y HAS ENTERED PATCHEYE PETE'S -- WELCOME SWABBIE WE OFFER FAIR TRADE FOR FINE BOOTY. All the players on the screen froze, then they crowded around me. The chat exploded. I thought about turning on my voice-paging and grabbing a headset, but seeing how many people were trying to talk at once, I realized how confusing that would be. Text was much easier to follow and they couldn't misquote me (heh heh). + +I'd scouted the location before with Ange -- it was great campaigning with her, since we could both keep each other wound up. There was a high-spot on a pile of boxes of salt-rations that I could stand on and be seen from anywhere in the market. + +> Good evening and thank you all for coming. My name is M1k3y and I'm not the leader of anything. All around you are Xnetters who have as much to say about why we're here as I do. I use the Xnet because I believe in freedom and the Constitution of the United States of America. I use Xnet because the DHS has turned my city into a police-state where we're all suspected terrorists. I use Xnet because I think you can't defend freedom by tearing up the Bill of Rights. I learned about the Constitution in a California school and I was raised to love my country for its freedom. If I have a philosophy, it is this: + +> Governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. + +> I didn't write that, but I believe it. The DHS does not govern with my consent. + +> Thank you + +I'd written this the day before, bouncing drafts back and forth with Ange. Pasting it in only took a second, though it took everyone in the game a moment to read it. A lot of the Xnetters cheered, big showy pirate "Hurrah"s with raised sabers and pet parrots squawking and flying overhead. + +Gradually, the journalists digested it too. The chat was running past fast, so fast you could barely read it, lots of Xnetters saying things like "Right on" and "America, love it or leave it" and "DHS go home" and "America out of San Francisco," all slogans that had been big on the Xnet blogosphere. + +> M1k3y, this is Priya Rajneesh from the BBC. You say you're not the leader of any movement, but do you believe there is a movement? Is it called the Xnet? + +Lots of answers. Some people said there wasn't a movement, some said there was and lots of people had ideas about what it was called: Xnet, Little Brothers, Little Sisters, and my personal favorite, the United States of America. + +They were really cooking. I let them go, thinking of what I could say. Once I had it, I typed, + +> I think that kind of answers your question, doesn't it? There may be one or more movements and they may be called Xnet or not. + +> M1k3y, I'm Doug Christensen from the Washington Internet Daily. What do you think the DHS should be doing to prevent another attack on San Francisco, if what they're doing isn't successful. + +More chatter. Lots of people said that the terrorists and the government were the same -- either literally, or just meaning that they were equally bad. Some said the government knew how to catch terrorists but preferred not to because "war presidents" got re-elected. + +> I don't know + +I typed finally. + +> I really don't. I ask myself this question a lot because I don't want to get blown up and I don't want my city to get blown up. Here's what I've figured out, though: if it's the DHS's job to keep us safe, they're failing. All the crap they've done, none of it would stop the bridge from being blown up again. Tracing us around the city? Taking away our freedom? Making us suspicious of each other, turning us against each other? Calling dissenters traitors? The point of terrorism is to terrify us. The DHS terrifies me. + +> I don't have any say in what the terrorists do to me, but if this is a free country then I should be able to at least say what my own cops do to me. I should be able to keep them from terrorizing me. + +> I know that's not a good answer. Sorry. + +> What do you mean when you say that the DHS wouldn't stop terrorists? How do you know? + +> Who are you? + +> I'm with the Sydney Morning Herald. + +> I'm 17 years old. I'm not a straight-A student or anything. Even so, I figured out how to make an Internet that they can't wiretap. I figured out how to jam their person-tracking technology. I can turn innocent people into suspects and turn guilty people into innocents in their eyes. I could get metal onto an airplane or beat a no-fly list. I figured this stuff out by looking at the web and by thinking about it. If I can do it, terrorists can do it. They told us they took away our freedom to make us safe. Do you feel safe? + +> In Australia? Why yes I do + +The pirates all laughed. + +More journalists asked questions. Some were sympathetic, some were hostile. When I got tired, I handed my keyboard to Ange and let her be M1k3y for a while. It didn't really feel like M1k3y and me were the same person anymore anyway. M1k3y was the kind of kid who talked to international journalists and inspired a movement. Marcus got suspended from school and fought with his dad and wondered if he was good enough for his kick-ass girlfriend. + +By 11PM I'd had enough. Besides, my parents would be expecting me home soon. I logged out of the game and so did Ange and we lay there for a moment. I took her hand and she squeezed hard. We hugged. + +She kissed my neck and murmured something. + +"What?" + +"I said I love you," she said. "What, you want me to send you a telegram?" + +"Wow," I said. + +"You're that surprised, huh?" + +"No. Um. It's just -- I was going to say that to you." + +"Sure you were," she said, and bit the tip of my nose. + +"It's just that I've never said it before," I said. "So I was working up to it." + +"You still haven't said it, you know. Don't think I haven't noticed. We girls pick upon these things." + +"I love you, Ange Carvelli," I said. + +"I love you too, Marcus Yallow." + +We kissed and nuzzled and I started to breathe hard and so did she. That's when her mom knocked on the door. + +"Angela," she said, "I think it's time your friend went home, don't you?" + +"Yes, mother," she said, and mimed swinging an axe. As I put my socks and shoes on, she muttered, "They'll say, that Angela, she was such a good girl, who would have thought it, all the time she was in the back yard, helping her mother out by sharpening that hatchet." + +I laughed. "You don't know how easy you have it. There is /{no way}/ my folks would leave us alone in my bedroom until 11 o'clock." + +"11:45," she said, checking her clock. + +"Crap!" I yelped and tied my shoes. + +"Go," she said, "run and be free! Look both ways before crossing the road! Write if you get work! Don't even stop for a hug! If you're not out of here by the count of ten, there's going to be /{trouble}/, mister. One. Two. Three." + +I shut her up by leaping onto the bed, landing on her and kissing her until she stopped trying to count. Satisfied with my victory, I pounded down the stairs, my Xbox under my arm. + +Her mom was at the foot of the stairs. We'd only met a couple times. She looked like an older, taller version of Ange -- Ange said her father was the short one -- with contacts instead of glasses. She seemed to have tentatively classed me as a good guy, and I appreciated it. + +"Good night, Mrs Carvelli," I said. + +"Good night, Mr Yallow," she said. It was one of our little rituals, ever since I'd called her Mrs Carvelli when we first met. + +I found myself standing awkwardly by the door. + +"Yes?" she said. + +"Um," I said. "Thanks for having me over." + +"You're always welcome in our home, young man," she said. + +"And thanks for Ange," I said finally, hating how lame it sounded. But she smiled broadly and gave me a brief hug. + +"You're very welcome," she said. + +The whole bus ride home, I thought over the press-conference, thought about Ange naked and writhing with me on her bed, thought about her mother smiling and showing me the door. + +My mom was waiting up for me. She asked me about the movie and I gave her the response I'd worked out in advance, cribbing from the review it had gotten in the /{Bay Guardian}/. + +As I fell asleep, the press-conference came back. I was really proud of it. It had been so cool, to have all these big-shot journos show up in the game, to have them listen to me and to have them listen to all the people who believed in the same things as me. I dropped off with a smile on my lips. + +# + +I should have known better. + +XNET LEADER: I COULD GET METAL ONTO AN AIRPLANE + +DHS DOESN'T HAVE MY CONSENT TO GOVERN + +XNET KIDS: USA OUT OF SAN FRANCISCO + +Those were the /{good}/ headlines. Everyone sent me the articles to blog, but it was the last thing I wanted to do. + +I'd blown it, somehow. The press had come to my press-conference and concluded that we were terrorists or terrorist dupes. The worst was the reporter on Fox News, who had apparently shown up anyway, and who devoted a ten-minute commentary to us, talking about our "criminal treason." Her killer line, repeated on every news-outlet I found, was: + +"They say they don't have a name. I've got one for them. Let's call these spoiled children Cal-Quaeda. They do the terrorists' work on the home front. When -- not if, but when -- California gets attacked again, these brats will be as much to blame as the House of Saud." + +Leaders of the anti-war movement denounced us as fringe elements. One guy went on TV to say that he believed we had been fabricated by the DHS to discredit them. + +The DHS had their own press-conference announcing that they would double the security in San Francisco. They held up an arphid cloner they'd found somewhere and demonstrated it in action, using it to stage a car-theft, and warned everyone to be on their alert for young people behaving suspiciously, especially those whose hands were out of sight. + +They weren't kidding. I finished my Kerouac paper and started in on a paper about the Summer of Love, the summer of 1967 when the anti-war movement and the hippies converged on San Francisco. The guys who founded Ben and Jerry's -- old hippies themselves -- had founded a hippie museum in the Haight, and there were other archives and exhibits to see around town. + +But it wasn't easy getting around. By the end of the week, I was getting frisked an average of four times a day. Cops checked my ID and questioned me about why I was out in the street, carefully eyeballing the letter from Chavez saying that I was suspended. + +I got lucky. No one arrested me. But the rest of the Xnet weren't so lucky. Every night the DHS announced more arrests, "ringleaders" and "operatives" of Xnet, people I didn't know and had never heard of, paraded on TV along with the arphid sniffers and other devices that had been in their pockets. They announced that the people were "naming names," compromising the "Xnet network" and that more arrests were expected soon. The name "M1k3y" was often heard. + +Dad loved this. He and I watched the news together, him gloating, me shrinking away, quietly freaking out. "You should see the stuff they're going to use on these kids," Dad said. "I've seen it in action. They'll get a couple of these kids and check out their friends lists on IM and the speed-dials on their phones, look for names that come up over and over, look for patterns, bringing in more kids. They're going to unravel them like an old sweater." + +I canceled Ange's dinner at our place and started spending even more time there. Ange's little sister Tina started to call me "the house-guest," as in "is the house-guest eating dinner with me tonight?" I liked Tina. All she cared about was going out and partying and meeting guys, but she was funny and utterly devoted to Ange. One night as we were doing the dishes, she dried her hands and said, conversationally, "You know, you seem like a nice guy, Marcus. My sister's just crazy about you and I like you too. But I have to tell you something: if you break her heart, I will track you down and pull your scrotum over your head. It's not a pretty sight." + +I assured her that I would sooner pull my own scrotum over my head than break Ange's heart and she nodded. "So long as we're clear on that." + +"Your sister is a nut," I said as we lay on Ange's bed again, looking at Xnet blogs. That is pretty much all we did: fool around and read Xnet. + +"Did she use the scrotum line on you? I hate it when she does that. She just loves the word 'scrotum,' you know. It's nothing personal." + +I kissed her. We read some more. + +"Listen to this," she said. "Police project four to six /{hundred}/ arrests this weekend in what they say will be the largest coordinated raid on Xnet dissidents to date." + +I felt like throwing up. + +"We've got to stop this," I said. "You know there are people who are doing /{more}/ jamming to show that they're not intimidated? Isn't that just /{crazy?}/" + +"I think it's brave," she said. "We can't let them scare us into submission." + +"What? No, Ange, no. We can't let hundreds of people go to /{jail}/. You haven't been there. I have. It's worse than you think. It's worse than you can imagine." + +"I have a pretty fertile imagination," she said. + +"Stop it, OK? Be serious for a second. I won't do this. I won't send those people to jail. If I do, I'm the guy that Van thinks I am." + +"Marcus, I'm being serious. You think that these people don't know they could go to jail? They believe in the cause. You believe in it too. Give them the credit to know what they're getting into. It's not up to you to decide what risks they can or can't take." + +"It's my responsibility because if I tell them to stop, they'll stop." + +"I thought you weren't the leader?" + +"I'm not, of course I'm not. But I can't help it if they look to me for guidance. And so long as they do, I have a responsibility to help them stay safe. You see that, right?" + +"All I see is you getting ready to cut and run at the first sign of trouble. I think you're afraid they're going to figure out who /{you}/ are. I think you're afraid for /{you}/." + +"That's not fair," I said, sitting up, pulling away from her. + +"Really? Who's the guy who nearly had a heart attack when he thought that his secret identity was out?" + +"That was different," I said. "This isn't about me. You know it isn't. Why are you being like this?" + +"Why are /{you}/ like this?" she said. "Why aren't /{you}/ willing to be the guy who was brave enough to get all this started?" + +"This isn't brave, it's suicide." + +"Cheap teenage melodrama, M1k3y." + +"Don't call me that!" + +"What, 'M1k3y'? Why not, /{M1k3y}/?" + +I put my shoes on. I picked up my bag. I walked home. + +# + +> Why I'm not jamming + +> I won't tell anyone else what to do, because I'm not anyone's leader, no matter what Fox News thinks. + +> But I am going to tell you what /{I}/ plan on doing. If you think that's the right thing to do, maybe you'll do it too. + +> I'm not jamming. Not this week. Maybe not next. It's not because I'm scared. It's because I'm smart enough to know that I'm better free than in prison. They figured out how to stop our tactic, so we need to come up with a new tactic. I don't care what the tactic is, but I want it to work. It's /{stupid}/ to get arrested. It's only jamming if you get away with it. + +> There's another reason not to jam. If you get caught, they might use you to catch your friends, and their friends, and their friends. They might bust your friends even if they're not on Xnet, because the DHS is like a maddened bull and they don't exactly worry if they've got the right guy. + +> I'm not telling you what to do. + +> But the DHS is dumb and we're smart. Jamming proves that they can't fight terrorism because it proves that they can't even stop a bunch of kids. If you get caught, it makes them look like they're smarter than us. + +> THEY AREN'T SMARTER THAN US! We are smarter than them. Let's be smart. Let's figure out how to jam them, no matter how many goons they put on the streets of our city. + +I posted it. I went to bed. + +I missed Ange. + +# + +Ange and I didn't speak for the next four days, including the weekend, and then it was time to go back to school. I'd almost called her a million times, written a thousand unsent emails and IMs. + +Now I was back in Social Studies class, and Mrs Andersen greeted me with voluble, sarcastic courtesy, asking me sweetly how my "holiday" had been. I sat down and mumbled nothing. I could hear Charles snicker. + +She taught us a class on Manifest Destiny, the idea that the Americans were destined to take over the whole world (or at least that's how she made it seem) and seemed to be trying to provoke me into saying something so she could throw me out. + +I felt the eyes of the class on me, and it reminded me of M1k3y and the people who looked up to him. I was sick of being looked up to. I missed Ange. + +I got through the rest of the day without anything making any kind of mark on me. I don't think I said eight words. + +Finally it was over and I hit the doors, heading for the gates and the stupid Mission and my pointless house. + +I was barely out the gate when someone crashed into me. He was a young homeless guy, maybe my age, maybe a little older. He wore a long, greasy overcoat, a pair of baggy jeans, and rotting sneakers that looked like they'd been through a wood-chipper. His long hair hung over his face, and he had a pubic beard that straggled down his throat into the collar of a no-color knit sweater. + +I took this all in as we lay next to each other on the sidewalk, people passing us and giving us weird looks. It seemed that he'd crashed into me while hurrying down Valencia, bent over with the burden of a split backpack that lay beside him on the pavement, covered in tight geometric doodles in magic-marker. + +He got to his knees and rocked back and forth, like he was drunk or had hit his head. + +"Sorry buddy," he said. "Didn't see you. You hurt?" + +I sat up too. Nothing felt hurt. + +"Um. No, it's OK." + +He stood up and smiled. His teeth were shockingly white and straight, like an ad for an orthodontic clinic. He held his hand out to me and his grip was strong and firm. + +"I'm really sorry." His voice was also clear and intelligent. I'd expected him to sound like the drunks who talked to themselves as they roamed the Mission late at night, but he sounded like a knowledgeable bookstore clerk. + +"It's no problem," I said. + +He stuck out his hand again. + +"Zeb," he said. + +"Marcus," I said. + +"A pleasure, Marcus," he said. "Hope to run into you again sometime!" + +Laughing, he picked up his backpack, turned on his heel and hurried away. + +# + +I walked the rest of the way home in a bemused fug. Mom was at the kitchen table and we had a little chat about nothing at all, the way we used to do, before everything changed. + +I took the stairs up to my room and flopped down in my chair. For once, I didn't want to login to the Xnet. I'd checked in that morning before school to discover that my note had created a gigantic controversy among people who agreed with me and people who were righteously pissed that I was telling them to back off from their beloved sport. + +I had three thousand projects I'd been in the middle of when it had all started. I was building a pinhole camera out of legos, I'd been playing with aerial kite photography using an old digital camera with a trigger hacked out of silly putty that was stretched out at launch and slowly snapped back to its original shape, triggering the shutter at regular intervals. I had a vacuum tube amp I'd been building into an ancient, rusted, dented olive-oil tin that looked like an archaeological find -- once it was done, I'd planned to build in a dock for my phone and a set of 5.1 surround-sound speakers out of tuna-fish cans. + +I looked over my workbench and finally picked up the pinhole camera. Methodically snapping legos together was just about my speed. + +I took off my watch and the chunky silver two-finger ring that showed a monkey and a ninja squaring off to fight and dropped them into the little box I used for all the crap I load into my pockets and around my neck before stepping out for the day: phone, wallet, keys, wifinder, change, batteries, retractable cables... I dumped it all out into the box, and found myself holding something I didn't remember putting in there in the first place. + +It was a piece of paper, grey and soft as flannel, furry at the edges where it had been torn away from some larger piece of paper. It was covered in the tiniest, most careful handwriting I'd ever seen. I unfolded it and held it up. The writing covered both sides, running down from the top left corner of one side to a crabbed signature at the bottom right corner of the other side. + +The signature read, simply: ZEB. + +I picked it up and started to read. + +> Dear Marcus + +> You don't know me but I know you. For the past three months, since the Bay Bridge was blown up, I have been imprisoned on Treasure Island. I was in the yard on the day you talked to that Asian girl and got tackled. You were brave. Good on you. + +> I had a burst appendix the day afterward and ended up in the infirmary. In the next bed was a guy named Darryl. We were both in recovery for a long time and by the time we got well, we were too much of an embarrassment to them to let go. + +> So they decided we must really be guilty. They questioned us every day. You've been through their questioning, I know. Imagine it for months. Darryl and I ended up cell-mates. We knew we were bugged, so we only talked about inconsequentialities. But at night, when we were in our cots, we would softly tap out messages to each other in Morse code (I knew my HAM radio days would come in useful sometime). + +> At first, their questions to us were just the same crap as ever, who did it, how'd they do it. But after a little while, they switched to asking us about the Xnet. Of course, we'd never heard of it. That didn't stop them asking. + +> Darryl told me that they brought him arphid cloners, Xboxes, all kinds of technology and demanded that he tell them who used them, where they learned to mod them. Darryl told me about your games and the things you learned. + +> Especially: The DHS asked us about our friends. Who did we know? What were they like? Did they have political feelings? Had they been in trouble at school? With the law? + +> We call the prison Gitmo-by-the-Bay. It's been a week since I got out and I don't think that anyone knows that their sons and daughters are imprisoned in the middle of the Bay. At night we could hear people laughing and partying on the mainland. + +> I got out last week. I won't tell you how, in case this falls into the wrong hands. Maybe others will take my route. + +> Darryl told me how to find you and made me promise to tell you what I knew when I got back. Now that I've done that I'm out of here like last year. One way or another, I'm leaving this country. Screw America. + +> Stay strong. They're scared of you. Kick them for me. Don't get caught. + +> Zeb + +There were tears in my eyes as I finished the note. I had a disposable lighter somewhere on my desk that I sometimes used to melt the insulation off of wires, and I dug it out and held it to the note. I knew I owed it to Zeb to destroy it and make sure no one else ever saw it, in case it might lead them back to him, wherever he was going. + +I held the flame and the note, but I couldn't do it. + +Darryl. + +With all the crap with the Xnet and Ange and the DHS, I'd almost forgotten he existed. He'd become a ghost, like an old friend who'd moved away or gone on an exchange program. All that time, they'd been questioning him, demanding that he rat me out, explain the Xnet, the jammers. He'd been on Treasure Island, the abandoned military base that was halfway along the demolished span of the Bay Bridge. He'd been so close I could have swam to him. + +I put the lighter down and re-read the note. By the time it was done, I was weeping, sobbing. It all came back to me, the lady with the severe haircut and the questions she'd asked and the reek of piss and the stiffness of my pants as the urine dried them into coarse canvas. + +"Marcus?" + +My door was ajar and my mother was standing in it, watching me with a worried look. How long had she been there? + +I armed the tears away from my face and snorted up the snot. "Mom," I said. "Hi." + +She came into my room and hugged me. "What is it? Do you need to talk?" + +The note lay on the table. + +"Is that from your girlfriend? Is everything all right?" + +She'd given me an out. I could just blame it all on problems with Ange and she'd leave my room and leave me alone. I opened my mouth to do just that, and then this came out: + +"I was in jail. After the bridge blew. I was in jail for that whole time." + +The sobs that came then didn't sound like my voice. They sounded like an animal noise, maybe a donkey or some kind of big cat noise in the night. I sobbed so my throat burned and ached with it, so my chest heaved. + +Mom took me in her arms, the way she used to when I was a little boy, and she stroked my hair, and she murmured in my ear, and rocked me, and gradually, slowly, the sobs dissipated. + +I took a deep breath and Mom got me a glass of water. I sat on the edge of my bed and she sat in my desk chair and I told her everything. + +Everything. + +Well, most of it. + +1~ Chapter 16 + +_1 /{ [This chapter is dedicated to San Francisco's Booksmith,~{ Booksmith http://thebooksmith.booksense.com 1644 Haight St. San Francisco CA 94117 USA +1 415 863 8688 }~ ensconced in the storied Haight-Ashbury neighborhood, just a few doors down from the Ben and Jerry's at the exact corner of Haight and Ashbury. The Booksmith folks really know how to run an author event -- when I lived in San Francisco, I used to go down all the time to hear incredible writers speak (William Gibson was unforgettable). They also produce little baseball-card-style trading cards for each author -- I have two from my own appearances there.] }/ + +At first Mom looked shocked, then outraged, and finally she gave up altogether and just let her jaw hang open as I took her through the interrogation, pissing myself, the bag over my head, Darryl. I showed her the note. + +"Why --?" + +In that single syllable, every recrimination I'd dealt myself in the night, every moment that I'd lacked the bravery to tell the world what it was really about, why I was really fighting, what had really inspired the Xnet. + +I sucked in a breath. + +"They told me I'd go to jail if I talked about it. Not just for a few days. Forever. I was -- I was scared." + +Mom sat with me for a long time, not saying anything. Then, "What about Darryl's father?" + +She might as well have stuck a knitting needle in my chest. Darryl's father. He must have assumed that Darryl was dead, long dead. + +And wasn't he? After the DHS has held you illegally for three months, would they ever let you go? + +But Zeb got out. Maybe Darryl would get out. Maybe me and the Xnet could help get Darryl out. + +"I haven't told him," I said. + +Now Mom was crying. She didn't cry easily. It was a British thing. It made her little hiccoughing sobs much worse to hear. + +"You will tell him," she managed. "You will." + +"I will." + +"But first we have to tell your father." + +# + +Dad no longer had any regular time when he came home. Between his consulting clients -- who had lots of work now that the DHS was shopping for data-mining startups on the peninsula -- and the long commute to Berkeley, he might get home any time between 6PM and midnight. + +Tonight Mom called him and told him he was coming home /{right now}/. He said something and she just repeated it: /{right now}/. + +When he got there, we had arranged ourselves in the living room with the note between us on the coffee table. + +It was easier to tell, the second time. The secret was getting lighter. I didn't embellish, I didn't hide anything. I came clean. + +I'd heard of coming clean before but I'd never understood what it meant until I did it. Holding in the secret had dirtied me, soiled my spirit. It had made me afraid and ashamed. It had made me into all the things that Ange said I was. + +Dad sat stiff as a ramrod the whole time, his face carved of stone. When I handed him the note, he read it twice and then set it down carefully. + +He shook his head and stood up and headed for the front door. + +"Where are you going?" Mom asked, alarmed. + +"I need a walk," was all he managed to gasp, his voice breaking. + +We stared awkwardly at each other, Mom and me, and waited for him to come home. I tried to imagine what was going on in his head. He'd been such a different man after the bombings and I knew from Mom that what had changed him were the days of thinking I was dead. He'd come to believe that the terrorists had nearly killed his son and it had made him crazy. + +Crazy enough to do whatever the DHS asked, to line up like a good little sheep and let them control him, drive him. + +Now he knew that it was the DHS that had imprisoned me, the DHS that had taken San Francisco's children hostage in Gitmo-by-the-Bay. It made perfect sense, now that I thought of it. Of course it had been Treasure Island where I'd been kept. Where else was a ten-minute boat-ride from San Francisco? + +When Dad came back, he looked angrier than he ever had in his life. + +"You should have told me!" he roared. + +Mom interposed herself between him and me. "You're blaming the wrong person," she said. "It wasn't Marcus who did the kidnapping and the intimidation." + +He shook his head and stamped. "I'm not blaming Marcus. I know /{exactly}/ who's to blame. Me. Me and the stupid DHS. Get your shoes on, grab your coats." + +"Where are we going?" + +"To see Darryl's father. Then we're going to Barbara Stratford's place." + +# + +I knew the name Barbara Stratford from somewhere, but I couldn't remember where. I thought that maybe she was an old friend of my parents, but I couldn't exactly place her. + +Meantime, I was headed for Darryl's father's place. I'd never really felt comfortable around the old man, who'd been a Navy radio operator and ran his household like a tight ship. He'd taught Darryl Morse code when he was a kid, which I'd always thought was cool. It was one of the ways I knew that I could trust Zeb's letter. But for every cool thing like Morse code, Darryl's father had some crazy military discipline that seemed to be for its own sake, like insisting on hospital corners on the beds and shaving twice a day. It drove Darryl up the wall. + +Darryl's mother hadn't liked it much either, and had taken off back to her family in Minnesota when Darryl was ten -- Darryl spent his summers and Christmases there. + +I was sitting in the back of the car, and I could see the back of Dad's head as he drove. The muscles in his neck were tense and kept jumping around as he ground his jaws. + +Mom kept her hand on his arm, but no one was around to comfort me. If only I could call Ange. Or Jolu. Or Van. Maybe I would when the day was done. + +"He must have buried his son in his mind," Dad said, as we whipped up through the hairpin curves leading up Twin Peaks to the little cottage that Darryl and his father shared. The fog was on Twin Peaks, the way it often was at night in San Francisco, making the headlamps reflect back on us. Each time we swung around a corner, I saw the valleys of the city laid out below us, bowls of twinkling lights that shifted in the mist. + +"Is this the one?" + +"Yes," I said. "This is it." I hadn't been to Darryl's in months, but I'd spent enough time here over the years to recognize it right off. + +The three of us stood around the car for a long moment, waiting to see who would go and ring the doorbell. To my surprise, it was me. + +I rang it and we all waited in held-breath silence for a minute. I rang it again. Darryl's father's car was in the driveway, and we'd seen a light burning in the living room. I was about to ring a third time when the door opened. + +"Marcus?" Darryl's father wasn't anything like I remembered him. Unshaven, in a housecoat and bare feet, with long toenails and red eyes. He'd gained weight, and a soft extra chin wobbled beneath the firm military jaw. His thin hair was wispy and disordered. + +"Mr Glover," I said. My parents crowded into the door behind me. + +"Hello, Ron," my mother said. + +"Ron," my father said. + +"You too? What's going on?" + +"Can we come in?" + +# + +His living room looked like one of those news-segments they show about abandoned kids who spend a month locked in before they're rescued by the neighbors: frozen meal boxes, empty beer cans and juice bottles, moldy cereal bowls and piles of newspapers. There was a reek of cat piss and litter crunched underneath our feet. Even without the cat piss, the smell was incredible, like a bus-station toilet. + +The couch was made up with a grimy sheet and a couple of greasy pillows and the cushions had a dented, much-slept-upon look. + +We all stood there for a long silent moment, embarrassment overwhelming every other emotion. Darryl's father looked like he wanted to die. + +Slowly, he moved aside the sheets from the sofa and cleared the stacked, greasy food-trays off of a couple of the chairs, carrying them into the kitchen, and, from the sound of it, tossing them on the floor. + +We sat gingerly in the places he'd cleared, and then he came back and sat down too. + +"I'm sorry," he said vaguely. "I don't really have any coffee to offer you. I'm having more groceries delivered tomorrow so I'm running low --" + +"Ron," my father said. "Listen to us. We have something to tell you, and it's not going to be easy to hear." + +He sat like a statue as I talked. He glanced down at the note, read it without seeming to understand it, then read it again. He handed it back to me. + +He was trembling. + +"He's --" + +"Darryl is alive," I said. "Darryl is alive and being held prisoner on Treasure Island." + +He stuffed his fist in his mouth and made a horrible groaning sound. + +"We have a friend," my father said. "She writes for the /{Bay Guardian}/. An investigative reporter." + +That's where I knew the name from. The free weekly /{Guardian}/ often lost its reporters to bigger daily papers and the Internet, but Barbara Stratford had been there forever. I had a dim memory of having dinner with her when I was a kid. + +"We're going there now," my mother said. "Will you come with us, Ron? Will you tell her Darryl's story?" + +He put his face in his hands and breathed deeply. Dad tried to put his hand on his shoulders, but Mr Glover shook it off violently. + +"I need to clean myself up," he said. "Give me a minute." + +Mr Glover came back downstairs a changed man. He'd shaved and gelled his hair back, and had put on a crisp military dress uniform with a row of campaign ribbons on the breast. He stopped at the foot of the stairs and kind of gestured at it. + +"I don't have much clean stuff that's presentable at the moment. And this seemed appropriate. You know, if she wanted to take pictures." + +He and Dad rode up front and I got in the back, behind him. Up close, he smelled a little of beer, like it was coming through his pores. + +# + +It was midnight by the time we rolled into Barbara Stratford's driveway. She lived out of town, down in Mountain View, and as we sped down the 101, none of us said a word. The high-tech buildings alongside the highway streamed past us. + +This was a different Bay Area to the one I lived in, more like the suburban America I sometimes saw on TV. Lots of freeways and subdivisions of identical houses, towns where there weren't any homeless people pushing shopping carts down the sidewalk -- there weren't even sidewalks! + +Mom had phoned Barbara Stratford while we were waiting for Mr Glover to come downstairs. The journalist had been sleeping, but Mom had been so wound up she forgot to be all British and embarrassed about waking her up. Instead, she just told her, tensely, that she had something to talk about and that it had to be in person. + +When we rolled up to Barbara Stratford's house, my first thought was of the Brady Bunch place -- a low ranch house with a brick baffle in front of it and a neat, perfectly square lawn. There was a kind of abstract tile pattern on the baffle, and an old-fashioned UHF TV antenna rising from behind it. We wandered around to the entrance and saw that there were lights on inside already. + +The writer opened the door before we had a chance to ring the bell. She was about my parents' age, a tall thin woman with a hawk-like nose and shrewd eyes with a lot of laugh-lines. She was wearing a pair of jeans that were hip enough to be seen at one of the boutiques on Valencia Street, and a loose Indian cotton blouse that hung down to her thighs. She had small round glasses that flashed in her hallway light. + +She smiled a tight little smile at us. + +"You brought the whole clan, I see," she said. + +Mom nodded. "You'll understand why in a minute," she said. Mr Glover stepped from behind Dad. + +"And you called in the Navy?" + +"All in good time." + +We were introduced one at a time to her. She had a firm handshake and long fingers. + +Her place was furnished in Japanese minimalist style, just a few precisely proportioned, low pieces of furniture, large clay pots of bamboo that brushed the ceiling, and what looked like a large, rusted piece of a diesel engine perched on top of a polished marble plinth. I decided I liked it. The floors were old wood, sanded and stained, but not filled, so you could see cracks and pits underneath the varnish. I /{really}/ liked that, especially as I walked over it in my stocking feet. + +"I have coffee on," she said. "Who wants some?" + +We all put up our hands. I glared defiantly at my parents. + +"Right," she said. + +She disappeared into another room and came back a moment later bearing a rough bamboo tray with a half-gallon thermos jug and six cups of precise design but with rough, sloppy decorations. I liked those too. + +"Now," she said, once she'd poured and served. "It's very good to see you all again. Marcus, I think the last time I saw you, you were maybe seven years old. As I recall, you were very excited about your new video games, which you showed me." + +I didn't remember it at all, but that sounded like what I'd been into at seven. I guessed it was my Sega Dreamcast. + +She produced a tape-recorder and a yellow pad and a pen, and twirled the pen. "I'm here to listen to whatever you tell me, and I can promise you that I'll take it all in confidence. But I can't promise that I'll do anything with it, or that it's going to get published." The way she said it made me realize that my Mom had called in a pretty big favor getting this lady out of bed, friend or no friend. It must be kind of a pain in the ass to be a big-shot investigative reporter. There were probably a million people who would have liked her to take up their cause. + +Mom nodded at me. Even though I'd told the story three times that night, I found myself tongue-tied. This was different from telling my parents. Different from telling Darryl's father. This -- this would start a new move in the game. + +I started slowly, and watched Barbara take notes. I drank a whole cup of coffee just explaining what ARGing was and how I got out of school to play. Mom and Dad and Mr Glover all listened intently to this part. I poured myself another cup and drank it on the way to explaining how we were taken in. By the time I'd run through the whole story, I'd drained the pot and I needed a piss like a race-horse. + +Her bathroom was just as stark as the living-room, with a brown, organic soap that smelled like clean mud. I came back in and found the adults quietly watching me. + +Mr Glover told his story next. He didn't have anything to say about what had happened, but he explained that he was a veteran and that his son was a good kid. He talked about what it felt like to believe that his son had died, about how his ex-wife had had a collapse when she found out and ended up in a hospital. He cried a little, unashamed, the tears streaming down his lined face and darkening the collar of his dress-uniform. + +When it was all done, Barbara went into a different room and came back with a bottle of Irish whiskey. "It's a Bushmills 15 year old rum-cask aged blend," she said, setting down four small cups. None for me. "It hasn't been sold in ten years. I think this is probably an appropriate time to break it out." + +She poured them each a small glass of the liquor, then raised hers and sipped at it, draining half the glass. The rest of the adults followed suit. They drank again, and finished the glasses. She poured them new shots. + +"All right," she said. "Here's what I can tell you right now. I believe you. Not just because I know you, Lillian. The story sounds right, and it ties in with other rumors I've heard. But I'm not going to be able to just take your word for it. I'm going to have to investigate every aspect of this, and every element of your lives and stories. I need to know if there's anything you're not telling me, anything that could be used to discredit you after this comes to light. I need everything. It could take weeks before I'm ready to publish. + +"You also need to think about your safety and this Darryl's safety. If he's really an 'un-person' then bringing pressure to bear on the DHS could cause them to move him somewhere much further away. Think Syria. They could also do something much worse." She let that hang in the air. I knew she meant that they might kill him. + +"I'm going to take this letter and scan it now. I want pictures of the two of you, now and later -- we can send out a photographer, but I want to document this as thoroughly as I can tonight, too." + +I went with her into her office to do the scan. I'd expected a stylish, low-powered computer that fit in with her decor, but instead, her spare-bedroom/office was crammed with top-of-the-line PCs, big flat-panel monitors, and a scanner big enough to lay a whole sheet of newsprint on. She was fast with it all, too. I noted with some approval that she was running ParanoidLinux. This lady took her job seriously. + +The computers' fans set up an effective white-noise shield, but even so, I closed the door and moved in close to her. + +"Um, Barbara?" + +"Yes?" + +"About what you said, about what might be used to discredit me?" + +"Yes?" + +"What I tell you, you can't be forced to tell anyone else, right?" + +"In theory. Let me put it this way. I've gone to jail twice rather than rat out a source." + +"OK, OK. Good. Wow. Jail. Wow. OK." I took a deep breath. "You've heard of Xnet? Of M1k3y?" + +"Yes?" + +"I'm M1k3y." + +"Oh," she said. She worked the scanner and flipped the note over to get the reverse. She was scanning at some unbelievable resolution, 10,000 dots per inch or higher, and on-screen it was like the output of an electron-tunneling microscope. + +"Well, that does put a different complexion on this." + +"Yeah," I said. "I guess it does." + +"Your parents don't know." + +"Nope. And I don't know if I want them to." + +"That's something you're going to have to work out. I need to think about this. Can you come by my office? I'd like to talk to you about what this means, exactly." + +"Do you have an Xbox Universal? I could bring over an installer." + +"Yes, I'm sure that can be arranged. When you come by, tell the receptionist that you're Mr Brown, to see me. They know what that means. No note will be taken of you coming, and all the security camera footage for the day will be automatically scrubbed and the cameras deactivated until you leave." + +"Wow," I said. "You think like I do." + +She smiled and socked me in the shoulder. "Kiddo, I've been at this game for a hell of a long time. So far, I've managed to spend more time free than behind bars. Paranoia is my friend." + +# + +I was like a zombie the next day in school. I'd totaled about three hours of sleep, and even three cups of the Turk's caffeine mud failed to jump-start my brain. The problem with caffeine is that it's too easy to get acclimated to it, so you have to take higher and higher doses just to get above normal. + +I'd spent the night thinking over what I had to do. It was like running though a maze of twisty little passages, all alike, every one leading to the same dead end. When I went to Barbara, it would be over for me. That was the outcome, no matter how I thought about it. + +By the time the school day was over, all I wanted was to go home and crawl into bed. But I had an appointment at the /{Bay Guardian}/, down on the waterfront. I kept my eyes on my feet as I wobbled out the gate, and as I turned into 24th Street, another pair of feet fell into step with me. I recognized the shoes and stopped. + +"Ange?" + +She looked like I felt. Sleep-deprived and raccoon-eyed, with sad brackets in the corners of her mouth. + +"Hi there," she said. "Surprise. I gave myself French Leave from school. I couldn't concentrate anyway." + +"Um," I said. + +"Shut up and give me a hug, you idiot." + +I did. It felt good. Better than good. It felt like I'd amputated part of myself and it had been reattached. + +"I love you, Marcus Yallow." + +"I love you, Angela Carvelli." + +"OK," she said breaking it off. "I liked your post about why you're not jamming. I can respect it. What have you done about finding a way to jam them without getting caught?" + +"I'm on my way to meet an investigative journalist who's going to publish a story about how I got sent to jail, how I started Xnet, and how Darryl is being illegally held by the DHS at a secret prison on Treasure Island." + +"Oh." She looked around for a moment. "Couldn't you think of anything, you know, ambitious?" + +"Want to come?" + +"I am coming, yes. And I would like you to explain this in detail if you don't mind." + +After all the re-tellings, this one, told as we walked to Potrero Avenue and down to 15th Street, was the easiest. She held my hand and squeezed it often. + +We took the stairs up to the /{Bay Guardian}/'s offices two at a time. My heart was pounding. I got to the reception desk and told the bored girl behind it, "I'm here to see Barbara Stratford. My name is Mr Green." + +"I think you mean Mr Brown?" + +"Yeah," I said, and blushed. "Mr Brown." + +She did something at her computer, then said, "Have a seat. Barbara will be out in a minute. Can I get you anything?" + +"Coffee," we both said in unison. Another reason to love Ange: we were addicted to the same drug. + +The receptionist -- a pretty latina woman only a few years older than us, dressed in Gap styles so old they were actually kind of hipster-retro -- nodded and stepped out and came back with a couple of cups bearing the newspaper's masthead. + +We sipped in silence, watching visitors and reporters come and go. Finally, Barbara came to get us. She was wearing practically the same thing as the night before. It suited her. She quirked an eyebrow at me when she saw that I'd brought a date. + +"Hello," I said. "Um, this is --" + +"Ms Brown," Ange said, extending a hand. Oh, yeah, right, our identities were supposed to be a secret. "I work with Mr Green." She elbowed me lightly. + +"Let's go then," Barbara said, and led us back to a board-room with long glass walls with their blinds drawn shut. She set down a tray of Whole Foods organic Oreo clones, a digital recorder, and another yellow pad. + +"Do you want to record this too?" she asked. + +Hadn't actually thought of that. I could see why it would be useful if I wanted to dispute what Barbara printed, though. Still, if I couldn't trust her to do right by me, I was doomed anyway. + +"No, that's OK," I said. + +"Right, let's go. Young lady, my name is Barbara Stratford and I'm an investigative reporter. I gather you know why I'm here, and I'm curious to know why you're here." + +"I work with Marcus on the Xnet," she said. "Do you need to know my name?" + +"Not right now, I don't," Barbara said. "You can be anonymous if you'd like. Marcus, I asked you to tell me this story because I need to know how it plays with the story you told me about your friend Darryl and the note you showed me. I can see how it would be a good adjunct; I could pitch this as the origin of the Xnet. 'They made an enemy they'll never forget,' that sort of thing. But to be honest, I'd rather not have to tell that story if I don't have to. + +"I'd rather have a nice clean tale about the secret prison on our doorstep, without having to argue about whether the prisoners there are the sort of people likely to walk out the doors and establish an underground movement bent on destabilizing the federal government. I'm sure you can understand that." + +I did. If the Xnet was part of the story, some people would say, see, they need to put guys like that in jail or they'll start a riot. + +"This is your show," I said. "I think you need to tell the world about Darryl. When you do that, it's going to tell the DHS that I've gone public and they're going to go after me. Maybe they'll figure out then that I'm involved with the Xnet. Maybe they'll connect me to M1k3y. I guess what I'm saying is, once you publish about Darryl, it's all over for me no matter what. I've made my peace with that." + +"As good be hanged for a sheep as a lamb," she said. "Right. Well, that's settled. I want the two of you to tell me everything you can about the founding and operation of the Xnet, and then I want a demonstration. What do you use it for? Who else uses it? How did it spread? Who wrote the software? Everything." + +"This'll take a while," Ange said. + +"I've got a while," Barbara said. She drank some coffee and ate a fake Oreo. "This could be the most important story of the War on Terror. This could be the story that topples the government. When you have a story like this, you take it very carefully." + +1~ Chapter 17 + +_1 /{ [This chapter is dedicated to Waterstone's,~{ Waterstones http://www.waterstones.com }~ the national UK bookselling chain. Waterstone's is a chain of stores, but each one has the feel of a great independent store, with tons of personality, great stock (especially audiobooks!), and knowledgeable staff.] }/ + +So we told her. I found it really fun, actually. Teaching people how to use technology is always exciting. It's so cool to watch people figure out how the technology around them can be used to make their lives better. Ange was great too -- we made an excellent team. We'd trade off explaining how it all worked. Barbara was pretty good at this stuff to begin with, of course. + +It turned out that she'd covered the crypto wars, the period in the early nineties when civil liberties groups like the Electronic Frontier Foundation fought for the right of Americans to use strong crypto. I dimly knew about that period, but Barbara explained it in a way that made me get goose-pimples. + +It's unbelievable today, but there was a time when the government classed crypto as a munition and made it illegal for anyone to export or use it on national security grounds. Get that? We used to have illegal /{math}/ in this country. + +The National Security Agency were the real movers behind the ban. They had a crypto standard that they said was strong enough for bankers and their customers to use, but not so strong that the mafia would be able to keep its books secret from them. The standard, DES-56, was said to be practically unbreakable. Then one of EFF's millionaire co-founders built a $250,000 DES-56 cracker that could break the cipher in two hours. + +Still the NSA argued that it should be able to keep American citizens from possessing secrets it couldn't pry into. Then EFF dealt its death-blow. In 1995, they represented a Berkeley mathematics grad student called Dan Bernstein in court. Bernstein had written a crypto tutorial that contained computer code that could be used to make a cipher stronger than DES-56. Millions of times stronger. As far as the NSA was concerned, that made his article into a weapon, and therefore unpublishable. + +Well, it may be hard to get a judge to understand crypto and what it means, but it turned out that the average Appeals Court judge isn't real enthusiastic about telling grad students what kind of articles they're allowed to write. The crypto wars ended with a victory for the good guys when the 9th Circuit Appellate Division Court ruled that code was a form of expression protected under the First Amendment -- "Congress shall make no law abridging the freedom of speech." If you've ever bought something on the Internet, or sent a secret message, or checked your bank-balance, you used crypto that EFF legalized. Good thing, too: the NSA just isn't that smart. Anything they know how to crack, you can be sure that terrorists and mobsters can get around too. + +Barbara had been one of the reporters who'd made her reputation from covering the issue. She'd cut her teeth covering the tail end of the civil rights movement in San Francisco, and she recognized the similarity between the fight for the Constitution in the real world and the fight in cyberspace. + +So she got it. I don't think I could have explained this stuff to my parents, but with Barbara it was easy. She asked smart questions about our cryptographic protocols and security procedures, sometimes asking stuff I didn't know the answer to -- sometimes pointing out potential breaks in our procedure. + +We plugged in the Xbox and got it online. There were four open WiFi nodes visible from the board room and I told it to change between them at random intervals. She got this too -- once you were actually plugged into the Xnet, it was just like being on the Internet, only some stuff was a little slower, and it was all anonymous and unsniffable. + +"So now what?" I said as we wound down. I'd talked myself dry and I had a terrible acid feeling from the coffee. Besides, Ange kept squeezing my hand under the table in a way that made me want to break away and find somewhere private to finish making up for our first fight. + +"Now I do journalism. You go away and I research all the things you've told me and try to confirm them to the extent that I can. I'll let you see what I'm going to publish and I'll let you know when it's going to go live. I'd prefer that you /{not}/ talk about this with anyone else now, because I want the scoop and because I want to make sure that I get the story before it goes all muddy from press speculation and DHS spin. + +"I /{will}/ have to call the DHS for comment before I go to press, but I'll do that in a way that protects you to whatever extent possible. I'll also be sure to let you know before that happens. + +"One thing I need to be clear on: this isn't your story anymore. It's mine. You were very generous to give it to me and I'll try to repay the gift, but you don't get the right to edit anything out, to change it, or to stop me. This is now in motion and it won't stop. Do you understand that?" + +I hadn't thought about it in those terms but once she said it, it was obvious. It meant that I had launched and I wouldn't be able to recall the rocket. It was going to fall where it was aimed, or it would go off course, but it was in the air and couldn't be changed now. Sometime in the near future, I would stop being Marcus -- I would be a public figure. I'd be the guy who blew the whistle on the DHS. + +I'd be a dead man walking. + +I guess Ange was thinking along the same lines, because she'd gone a color between white and green. + +"Let's get out of here," she said. + +# + +Ange's mom and sister were out again, which made it easy to decide where we were going for the evening. It was past supper time, but my parents had known that I was meeting with Barbara and wouldn't give me any grief if I came home late. + +When we got to Ange's, I had no urge to plug in my Xbox. I had had all the Xnet I could handle for one day. All I could think about was Ange, Ange, Ange. Living without Ange. Knowing Ange was angry with me. Ange never going to talk to me again. Ange never going to kiss me again. + +She'd been thinking the same. I could see it in her eyes as we shut the door to her bedroom and looked at each other. I was hungry for her, like you'd hunger for dinner after not eating for days. Like you'd thirst for a glass of water after playing soccer for three hours straight. + +Like none of that. It was more. It was something I'd never felt before. I wanted to eat her whole, devour her. + +Up until now, she'd been the sexual one in our relationship. I'd let her set and control the pace. It was amazingly erotic to have /{her}/ grab /{me}/ and take off my shirt, drag my face to hers. + +But tonight I couldn't hold back. I wouldn't hold back. + +The door clicked shut and I reached for the hem of her t-shirt and yanked, barely giving her time to lift her arms as I pulled it over her head. I tore my own shirt over my head, listening to the cotton crackle as the stitches came loose. + +Her eyes were shining, her mouth open, her breathing fast and shallow. Mine was too, my breath and my heart and my blood all roaring in my ears. + +I took off the rest of our clothes with equal zest, throwing them into the piles of dirty and clean laundry on the floor. There were books and papers all over the bed and I swept them aside. We landed on the unmade bedclothes a second later, arms around one another, squeezing like we would pull ourselves right through one another. She moaned into my mouth and I made the sound back, and I felt her voice buzz in my vocal chords, a feeling more intimate than anything I'd ever felt before. + +She broke away and reached for the bedstand. She yanked open the drawer and threw a white pharmacy bag on the bed before me. I looked inside. Condoms. Trojans. One dozen spermicidal. Still sealed. I smiled at her and she smiled back and I opened the box. + +# + +I'd thought about what it would be like for years. A hundred times a day I'd imagined it. Some days, I'd thought of practically nothing else. + +It was nothing like I expected. Parts of it were better. Parts of it were lots worse. While it was going on, it felt like an eternity. Afterwards, it seemed to be over in the blink of an eye. + +Afterwards, I felt the same. But I also felt different. Something had changed between us. + +It was weird. We were both shy as we put our clothes on and puttered around the room, looking away, not meeting each other's eyes. I wrapped the condom in a kleenex from a box beside the bed and took it into the bathroom and wound it with toilet paper and stuck it deep into the trash-can. + +When I came back in, Ange was sitting up in bed and playing with her Xbox. I sat down carefully beside her and took her hand. She turned to face me and smiled. We were both worn out, trembly. + +"Thanks," I said. + +She didn't say anything. She turned her face to me. She was grinning hugely, but fat tears were rolling down her cheeks. + +I hugged her and she grabbed tightly onto me. "You're a good man, Marcus Yallow," she whispered. "Thank you." + +I didn't know what to say, but I squeezed her back. Finally, we parted. She wasn't crying any more, but she was still smiling. + +She pointed at my Xbox, on the floor beside the bed. I took the hint. I picked it up and plugged it in and logged in. + +Same old same old. Lots of email. The new posts on the blogs I read streamed in. Spam. God did I get a lot of spam. My Swedish mailbox was repeatedly "joe-jobbed" -- used as the return address for spams sent to hundreds of millions of Internet accounts, so that all the bounces and angry messages came back to me. I didn't know who was behind it. Maybe the DHS trying to overwhelm my mailbox. Maybe it was just people pranking. The Pirate Party had pretty good filters, though, and they gave anyone who wanted it 500 gigabytes of email storage, so I wasn't likely to be drowned any time soon. + +I filtered it all out, hammering on the delete key. I had a separate mailbox for stuff that came in encrypted to my public key, since that was likely to be Xnet-related and possibly sensitive. Spammers hadn't figured out that using public keys would make their junk mail more plausible yet, so for now this worked well. + +There were a couple dozen encrypted messages from people in the web of trust. I skimmed them -- links to videos and pics of new abuses from the DHS, horror stories about near-escapes, rants about stuff I'd blogged. The usual. + +Then I came to one that was only encrypted to my public key. That meant that no one else could read it, but I had no idea who had written it. It said it came from Masha, which could either be a handle or a name -- I couldn't tell which. + +> M1k3y + +> You don't know me, but I know you. + +> I was arrested the day that the bridge blew. They questioned me. They decided I was innocent. They offered me a job: help them hunt down the terrorists who'd killed my neighbors. + +> It sounded like a good deal at the time. Little did I realize that my actual job would turn out to be spying on kids who resented their city being turned into a police state. + +> I infiltrated Xnet on the day it launched. I am in your web of trust. If I wanted to spill my identity, I could send you email from an address you'd trust. Three addresses, actually. I'm totally inside your network as only another 17-year-old can be. Some of the email you've gotten has been carefully chosen misinformation from me and my handlers. + +> They don't know who you are, but they're coming close. They continue to turn people, to compromise them. They mine the social network sites and use threats to turn kids into informants. There are hundreds of people working for the DHS on Xnet right now. I have their names, handles and keys. Private and public. + +> Within days of the Xnet launch, we went to work on exploiting ParanoidLinux. The exploits so far have been small and insubstantial, but a break is inevitable. Once we have a zero-day break, you're dead. + +> I think it's safe to say that if my handlers knew that I was typing this, my ass would be stuck in Gitmo-by-the-Bay until I was an old woman. + +> Even if they don't break ParanoidLinux, there are poisoned ParanoidXbox distros floating around. They don't match the checksums, but how many people look at the checksums? Besides me and you? Plenty of kids are already dead, though they don't know it. + +> All that remains is for my handlers to figure out the best time to bust you to make the biggest impact in the media. That time will be sooner, not later. Believe. + +> You're probably wondering why I'm telling you this. + +> I am too. + +> Here's where I come from. I signed up to fight terrorists. Instead, I'm spying on Americans who believe things that the DHS doesn't like. Not people who plan on blowing up bridges, but protestors. I can't do it anymore. + +> But neither can you, whether or not you know it. Like I say, it's only a matter of time until you're in chains on Treasure Island. That's not if, that's when. + +> So I'm through here. Down in Los Angeles, there are some people. They say they can keep me safe if I want to get out. + +> I want to get out. + +> I will take you with me, if you want to come. Better to be a fighter than a martyr. If you come with me, we can figure out how to win together. I'm as smart as you. Believe. + +> What do you say? + +> Here's my public key. + +> Masha + +# + +When in trouble or in doubt, run in circles, scream and shout. + +Ever hear that rhyme? It's not good advice, but at least it's easy to follow. I leapt off the bed and paced back and forth. My heart thudded and my blood sang in a cruel parody of the way I'd felt when we got home. This wasn't sexual excitement, it was raw terror. + +"What?" Ange said. "What?" + +I pointed at the screen on my side of the bed. She rolled over and grabbed my keyboard and scribed on the touchpad with her fingertip. She read in silence. + +I paced. + +"This has to be lies," she said. "The DHS is playing games with your head." + +I looked at her. She was biting her lip. She didn't look like she believed it. + +"You think?" + +"Sure. They can't beat you, so they're coming after you using Xnet." + +"Yeah." + +I sat back down on the bed. I was breathing fast again. + +"Chill out," she said. "It's just head-games. Here." + +She never took my keyboard from me before, but now there was a new intimacy between us. She hit reply and typed, + +> Nice try. + +She was writing as M1k3y now, too. We were together in a way that was different from before. + +"Go ahead and sign it. We'll see what she says." + +I didn't know if that was the best idea, but I didn't have any better ones. I signed it and encrypted it with my private key and the public key Masha had provided. + +The reply was instant. + +> I thought you'd say something like that. + +> Here's a hack you haven't thought of. I can anonymously tunnel video over DNS. Here are some links to clips you might want to look at before you decide I'm full of it. These people are all recording each other, all the time, as insurance against a back-stab. It's pretty easy to snoop off them as they snoop on each other. + +> Masha + +Attached was source-code for a little program that appeared to do exactly what Masha claimed: pull video over the Domain Name Service protocol. + +Let me back up a moment here and explain something. At the end of the day, every Internet protocol is just a sequence of text sent back and forth in a prescribed order. It's kind of like getting a truck and putting a car in it, then putting a motorcycle in the car's trunk, then attaching a bicycle to the back of the motorcycle, then hanging a pair of Rollerblades on the back of the bike. Except that then, if you want, you can attach the truck to the Rollerblades. + +For example, take Simple Mail Transport Protocol, or SMTP, which is used for sending email. + +Here's a sample conversation between me and my mail server, sending a message to myself: + +> HELO littlebrother.com.se + +250 mail.pirateparty.org.se Hello mail.pirateparty.org.se, pleased to meet you + +> MAIL FROM:m1k3y@littlebrother.com.se + +250 2.1.0 m1k3y@littlebrother.com.se... Sender ok + +> RCPT TO:m1k3y@littlebrother.com.se + +250 2.1.5 m1k3y@littlebrother.com.se... Recipient ok + +> DATA + +354 Enter mail, end with "." on a line by itself + +> When in trouble or in doubt, run in circles, scream and shout + +> . + +250 2.0.0 k5SMW0xQ006174 Message accepted for delivery + +QUIT + +221 2.0.0 mail.pirateparty.org.se closing connection + +Connection closed by foreign host. + +This conversation's grammar was defined in 1982 by Jon Postel, one of the Internet's heroic forefathers, who used to literally run the most important servers on the net under his desk at the University of Southern California, back in the paleolithic era. + +Now, imagine that you hooked up a mail-server to an IM session. You could send an IM to the server that said "HELO littlebrother.com.se" and it would reply with "250 mail.pirateparty.org.se Hello mail.pirateparty.org.se, pleased to meet you." In other words, you could have the same conversation over IM as you do over SMTP. With the right tweaks, the whole mail-server business could take place inside of a chat. Or a web-session. Or anything else. + +This is called "tunneling." You put the SMTP inside a chat "tunnel." You could then put the chat back into an SMTP tunnel if you wanted to be really weird, tunneling the tunnel in another tunnel. + +In fact, every Internet protocol is susceptible to this process. It's cool, because it means that if you're on a network with only Web access, you can tunnel your mail over it. You can tunnel your favorite P2P over it. You can even tunnel Xnet -- which itself is a tunnel for dozens of protocols -- over it. + +Domain Name Service is an interesting and ancient Internet protocol, dating back to 1983. It's the way that your computer converts a computer's name -- like pirateparty.org.se -- to the IP number that computers actually use to talk to each other over the net, like 204.11.50.136. It generally works like magic, even though it's got millions of moving parts -- every ISP runs a DNS server, as do most governments and lots of private operators. These DNS boxes all talk to each other all the time, making and filling requests to each other so no matter how obscure the name is you feed to your computer, it will be able to turn it into a number. + +Before DNS, there was the HOSTS file. Believe it or not, this was a single document that listed the name and address of /{every single computer}/ connected to the Internet. Every computer had a copy of it. This file was eventually too big to move around, so DNS was invented, and ran on a server that used to live under Jon Postel's desk. If the cleaners knocked out the plug, the entire Internet lost its ability to find itself. Seriously. + +The thing about DNS today is that it's everywhere. Every network has a DNS server living on it, and all of those servers are configured to talk to each other and to random people all over the Internet. + +What Masha had done was figure out a way to tunnel a video-streaming system over DNS. She was breaking up the video into billions of pieces and hiding each of them in a normal message to a DNS server. By running her code, I was able to pull the video from all those DNS servers, all over the Internet, at incredible speed. It must have looked bizarre on the network histograms, like I was looking up the address of every computer in the world. + +But it had two advantages I appreciated at once: I was able to get the video with blinding speed -- as soon as I clicked the first link, I started to receive full-screen pictures, without any jitter or stuttering -- and I had no idea where it was hosted. It was totally anonymous. + +At first I didn't even clock the content of the video. I was totally floored by the cleverness of this hack. Streaming video from DNS? That was so smart and weird, it was practically /{perverted}/. + +Gradually, what I was seeing began to sink in. + +It was a board-room table in a small room with a mirror down one wall. I knew that room. I'd sat in that room, while Severe-Haircut woman had made me speak my password aloud. There were five comfortable chairs around the table, each with a comfortable person, all in DHS uniform. I recognized Major General Graeme Sutherland, the DHS Bay Area commander, along with Severe Haircut. The others were new to me. They all watched a video screen at the end of the table, on which there was an infinitely more familiar face. + +Kurt Rooney was known nationally as the President's chief strategist, the man who returned the party for its third term, and who was steaming towards a fourth. They called him "Ruthless" and I'd seen a news report once about how tight a rein he kept his staffers on, calling them, IMing them, watching their every motion, controlling every step. He was old, with a lined face and pale gray eyes and a flat nose with broad, flared nostrils and thin lips, a man who looked like he was smelling something bad all the time. + +He was the man on the screen. He was talking, and everyone else was focused on his screen, everyone taking notes as fast as they could type, trying to look smart. + +"-- say that they're angry with authority, but we need to show the country that it's terrorists, not the government, that they need to blame. Do you understand me? The nation does not love that city. As far as they're concerned, it is a Sodom and Gomorrah of fags and atheists who deserve to rot in hell. The only reason the country cares what they think in San Francisco is that they had the good fortune to have been blown to hell by some Islamic terrorists. + +"These Xnet children are getting to the point where they might start to be useful to us. The more radical they get, the more the rest of the nation understands that there are threats everywhere." + +His audience finished typing. + +"We can control that, I think," Severe Haircut Lady said. "Our people in the Xnet have built up a lot of influence. The Manchurian Bloggers are running as many as fifty blogs each, flooding the chat channels, linking to each other, mostly just taking the party line set by this M1k3y. But they've already shown that they can provoke radical action, even when M1k3y is putting the brakes on." + +Major General Sutherland nodded. "We have been planning to leave them underground until about a month before the midterms." I guessed that meant the mid-term elections, not my exams. "That's per the original plan. But it sounds like --" + +"We've got another plan for the midterms," Rooney said. "Need-to-know, of course, but you should all probably not plan on traveling for the month before. Cut the Xnet loose now, as soon as you can. So long as they're moderates, they're a liability. Keep them radical." + +The video cut off. + +Ange and I sat on the edge of the bed, looking at the screen. Ange reached out and started the video again. We watched it. It was worse the second time. + +I tossed the keyboard aside and got up. + +"I am /{so sick}/ of being scared," I said. "Let's take this to Barbara and have her publish it all. Put it all on the net. Let them take me away. At least I'll know what's going to happen then. At least then I'll have a little /{certainty}/ in my life." + +Ange grabbed me and hugged me, soothed me. "I know baby, I know. It's all terrible. But you're focusing on the bad stuff and ignoring the good stuff. You've created a movement. You've outflanked the jerks in the White House, the crooks in DHS uniforms. You've put yourself in a position where you could be responsible for blowing the lid off of the entire rotten DHS thing. + +"Sure they're out to get you. Course they are. Have you ever doubted it for a moment? I always figured they were. But Marcus, /{they don't know who you are}/. Think about that. All those people, money, guns and spies, and you, a seventeen year old high school kid -- you're still beating them. They don't know about Barbara. They don't know about Zeb. You've jammed them in the streets of San Francisco and humiliated them before the world. So stop moping, all right? You're winning." + +"They're coming for me, though. You see that. They're going to put me in jail forever. Not even jail. I'll just disappear, like Darryl. Maybe worse. Maybe Syria. Why leave me in San Francisco? I'm a liability as long as I'm in the USA." + +She sat down on the bed with me. + +"Yeah," she said. "That." + +"That." + +"Well, you know what you have to do, right?" + +"What?" She looked pointedly at my keyboard. I could see the tears rolling down her cheeks. "No! You're out of your mind. You think I'm going to run off with some nut off the Internet? Some spy?" + +"You got a better idea?" + +I kicked a pile of her laundry into the air. "Whatever. Fine. I'll talk to her some more." + +"You talk to her," Ange said. "You tell her you and your girlfriend are getting out." + +"What?" + +"Shut up, dickhead. You think you're in danger? I'm in just as much danger, Marcus. It's called guilt by association. When you go, I go." She had her jaw thrust out at a mutinous angle. "You and I -- we're together now. You have to understand that." + +We sat down on the bed together. + +"Unless you don't want me," she said, finally, in a small voice. + +"You're kidding me, right?" + +"Do I look like I'm kidding?" + +"There's no way I would voluntarily go without you, Ange. I could never have asked you to come, but I'm ecstatic that you offered." + +She smiled and tossed me my keyboard. + +"Email this Masha creature. Let's see what this chick can do for us." + +I emailed her, encrypting the message, waiting for a reply. Ange nuzzled me a little and I kissed her and we necked. Something about the danger and the pact to go together -- it made me forget the awkwardness of having sex, made me freaking horny as hell. + +We were half naked again when Masha's email arrived. + +> Two of you? Jesus, like it won't be hard enough already. + +> I don't get to leave except to do field intelligence after a big Xnet hit. You get me? The handlers watch my every move, but I go off the leash when something big happens with Xnetters. I get sent into the field then. + +> You do something big. I get sent to it. I get us both out. All three of us, if you insist. + +> Make it fast, though. I can't send you a lot of email, understand? They watch me. They're closing in on you. You don't have a lot of time. Weeks? Maybe just days. + +> I need you to get me out. That's why I'm doing this, in case you're wondering. I can't escape on my own. I need a big Xnet distraction. That's your department. Don't fail me, M1k3y, or we're both dead. Your girlie too. + +> Masha + +My phone rang, making us both jump. It was my mom wanting to know when I was coming home. I told her I was on my way. She didn't mention Barbara. We'd agreed that we wouldn't talk about any of this stuff on the phone. That was my dad's idea. He could be as paranoid as me. + +"I have to go," I said. + +"Our parents will be --" + +"I know," I said. "I saw what happened to my parents when they thought I was dead. Knowing that I'm a fugitive isn't going to be much better. But they'd rather I be a fugitive than a prisoner. That's what I think. Anyway, once we disappear, Barbara can publish without worrying about getting us into trouble." + +We kissed at the door of her room. Not one of the hot, sloppy numbers we usually did when parting ways. A sweet kiss this time. A slow kiss. A goodbye kind of kiss. + +# + +BART rides are introspective. When the train rocks back and forth and you try not to make eye contact with the other riders and you try not to read the ads for plastic surgery, bail bondsmen and AIDS testing, when you try to ignore the graffiti and not look too closely at the stuff in the carpeting. That's when your mind starts to really churn and churn. + +You rock back and forth and your mind goes over all the things you've overlooked, plays back all the movies of your life where you're no hero, where you're a chump or a sucker. + +Your brain comes up with theories like this one: + +/{If the DHS wanted to catch M1k3y, what better way than to lure him into the open, panic him into leading some kind of big, public Xnet event? Wouldn't that be worth the chance of a compromising video leaking?}/ + +Your brain comes up with stuff like that even when the train ride only lasts two or three stops. When you get off, and you start moving, the blood gets running and sometimes your brain helps you out again. + +Sometimes your brain gives you solutions in addition to problems. + +1~ Chapter 18 + +_1 /{ [This chapter is dedicated to Vancouver's multilingual Sophia Books,~{ Sophia Books http://www.sophiabooks.com/ 450 West Hastings St., Vancouver, BC Canada V6B1L1 +1 604 684 0484 }~ a diverse and exciting store filled with the best of the strange and exciting pop culture worlds of many lands. Sophia was around the corner from my hotel when I went to Van to give a talk at Simon Fraser University, and the Sophia folks emailed me in advance to ask me to drop in and sign their stock while I was in the neighborhood. When I got there, I discovered a treasure-trove of never-before-seen works in a dizzying array of languages, from graphic novels to thick academic treatises, presided over by good-natured (even slapstick) staff who so palpably enjoyed their jobs that it spread to every customer who stepped through the door.] }/ + +There was a time when my favorite thing in the world was putting on a cape and hanging out in hotels, pretending to be an invisible vampire whom everyone stared at. + +It's complicated, and not nearly as weird as it sounds. The Live Action Role Playing scene combines the best aspects of D&D with drama club with going to sci-fi cons. + +I understand that this might not make it sound as appealing to you as it was to me when I was 14. + +The best games were the ones at the Scout Camps out of town: a hundred teenagers, boys and girls, fighting the Friday night traffic, swapping stories, playing handheld games, showing off for hours. Then debarking to stand in the grass before a group of older men and women in bad-ass, home-made armor, dented and scarred, like armor must have been in the old days, not like it's portrayed in the movies, but like a soldier's uniform after a month in the bush. + +These people were nominally paid to run the games, but you didn't get the job unless you were the kind of person who'd do it for free. They'd have already divided us into teams based on the questionnaires we'd filled in beforehand, and we'd get our team assignments then, like being called up for baseball sides. + +Then you'd get your briefing packages. These were like the briefings the spies get in the movies: here's your identity, here's your mission, here's the secrets you know about the group. + +From there, it was time for dinner: roaring fires, meat popping on spits, tofu sizzling on skillets (it's northern California, a vegetarian option is not optional), and a style of eating and drinking that can only be described as quaffing. + +Already, the keen kids would be getting into character. My first game, I was a wizard. I had a bag of beanbags that represented spells -- when I threw one, I would shout the name of the spell I was casting -- fireball, magic missile, cone of light -- and the player or "monster" I threw it at would keel over if I connected. Or not -- sometimes we had to call in a ref to mediate, but for the most part, we were all pretty good about playing fair. No one liked a dice lawyer. + +By bedtime, we were all in character. At 14, I wasn't super-sure what a wizard was supposed to sound like, but I could take my cues from the movies and novels. I spoke in slow, measured tones, keeping my face composed in a suitably mystical expression, and thinking mystical thoughts. + +The mission was complicated, retrieving a sacred relic that had been stolen by an ogre who was bent on subjugating the people of the land to his will. It didn't really matter a whole lot. What mattered was that I had a private mission, to capture a certain kind of imp to serve as my familiar, and that I had a secret nemesis, another player on the team who had taken part in a raid that killed my family when I was a boy, a player who didn't know that I'd come back, bent on revenge. Somewhere, of course, there was another player with a similar grudge against me, so that even as I was enjoying the camaraderie of the team, I'd always have to keep an eye open for a knife in the back, poison in the food. + +For the next two days, we played it out. There were parts of the weekend that were like hide-and-seek, some that were like wilderness survival exercises, some that were like solving crossword puzzles. The game-masters had done a great job. And you really got to be friends with the other people on the mission. Darryl was the target of my first murder, and I put my back into it, even though he was my pal. Nice guy. Shame I'd have to kill him. + +I fireballed him as he was seeking out treasure after we wiped out a band of orcs, playing rock-papers-scissors with each orc to determine who would prevail in combat. This is a lot more exciting than it sounds. + +It was like summer camp for drama geeks. We talked until late at night in tents, looked at the stars, jumped in the river when we got hot, slapped away mosquitos. Became best friends, or lifelong enemies. + +I don't know why Charles's parents sent him LARPing. He wasn't the kind of kid who really enjoyed that kind of thing. He was more the pulling-wings-off-flies type. Oh, maybe not. But he just was not into being in costume in the woods. He spent the whole time mooching around, sneering at everyone and everything, trying to convince us all that we weren't having the good time we all felt like we were having. You've no doubt found that kind of person before, the kind of person who is compelled to ensure that everyone else has a rotten time. + +The other thing about Charles was that he couldn't get the hang of simulated combat. Once you start running around the woods and playing these elaborate, semi-military games, it's easy to get totally adrenalized to the point where you're ready to tear out someone's throat. This is not a good state to be in when you're carrying a prop sword, club, pike or other utensil. This is why no one is ever allowed to hit anyone, under any circumstances, in these games. Instead, when you get close enough to someone to fight, you play a quick couple rounds of rock-paper-scissors, with modifiers based on your experience, armaments, and condition. The referees mediate disputes. It's quite civilized, and a little weird. You go running after someone through the woods, catch up with him, bare your teeth, and sit down to play a little roshambo. But it works -- and it keeps everything safe and fun. + +Charles couldn't really get the hang of this. I think he was perfectly capable of understanding that the rule was no contact, but he was simultaneously capable of deciding that the rule didn't matter, and that he wasn't going to abide by it. The refs called him on it a bunch of times over the weekend, and he kept on promising to stick by it, and kept on going back. He was one of the bigger kids there already, and he was fond of "accidentally" tackling you at the end of a chase. Not fun when you get tackled into the rocky forest floor. + +I had just mightily smote Darryl in a little clearing where he'd been treasure-hunting, and we were having a little laugh over my extreme sneakiness. He was going to go monstering -- killed players could switch to playing monsters, which meant that the longer the game wore on, the more monsters there were coming after you, meaning that everyone got to keep on playing and the game's battles just got more and more epic. + +That was when Charles came out of the woods behind me and tackled me, throwing me to the ground so hard that I couldn't breathe for a moment. "Gotcha!" he yelled. I only knew him slightly before this, and I'd never thought much of him, but now I was ready for murder. I climbed slowly to my feet and looked at him, his chest heaving, grinning. "You're so dead," he said. "I totally got you." + +I smiled and something felt wrong and sore in my face. I touched my upper lip. It was bloody. My nose was bleeding and my lip was split, cut on a root I'd face-planted into when he tackled me. + +I wiped the blood on my pants-leg and smiled. I made like I thought that it was all in fun. I laughed a little. I moved towards him. + +Charles wasn't fooled. He was already backing away, trying to fade into the woods. Darryl moved to flank him. I took the other flank. Abruptly, he turned and ran. Darryl's foot hooked his ankle and sent him sprawling. We rushed him, just in time to hear a ref's whistle. + +The ref hadn't seen Charles foul me, but he'd seen Charles's play that weekend. He sent Charles back to the camp entrance and told him he was out of the game. Charles complained mightily, but to our satisfaction, the ref wasn't having any of it. Once Charles had gone, he gave /{us}/ both a lecture, too, telling us that our retaliation was no more justified than Charles's attack. + +It was OK. That night, once the games had ended, we all got hot showers in the scout dorms. Darryl and I stole Charles's clothes and towel. We tied them in knots and dropped them in the urinal. A lot of the boys were happy to contribute to the effort of soaking them. Charles had been very enthusiastic about his tackles. + +I wish I could have watched him when he got out of his shower and discovered his clothes. It's a hard decision: do you run naked across the camp, or pick apart the tight, piss-soaked knots in your clothes and then put them on? + +He chose nudity. I probably would have chosen the same. We lined up along the route from the showers to the shed where the packs were stored and applauded him. I was at the front of the line, leading the applause. + +# + +The Scout Camp weekends only came three or four times a year, which left Darryl and me -- and lots of other LARPers -- with a serious LARP deficiency in our lives. + +Luckily, there were the Wretched Daylight games in the city hotels. Wretched Daylight is another LARP, rival vampire clans and vampire hunters, and it's got its own quirky rules. Players get cards to help them resolve combat skirmishes, so each skirmish involves playing a little hand of a strategic card game. Vampires can become invisible by cloaking themselves, crossing their arms over their chests, and all the other players have to pretend they don't see them, continuing on with their conversations about their plans and so on. The true test of a good player is whether you're honest enough to go on spilling your secrets in front of an "invisible" rival without acting as though he was in the room. + +There were a couple of big Wretched Daylight games every month. The organizers of the games had a good relationship with the city's hotels and they let it be known that they'd take ten unbooked rooms on Friday night and fill them with players who'd run around the hotel, playing low-key Wretched Daylight in the corridors, around the pool, and so on, eating at the hotel restaurant and paying for the hotel WiFi. They'd close the booking on Friday afternoon, email us, and we'd go straight from school to whichever hotel it was, bringing our knapsacks, sleeping six or eight to a room for the weekend, living on junk-food, playing until three AM. It was good, safe fun that our parents could get behind. + +The organizers were a well-known literacy charity that ran kids' writing workshops, drama workshops and so on. They had been running the games for ten years without incident. Everything was strictly booze- and drug-free, to keep the organizers from getting busted on some kind of corruption of minors rap. We'd draw between ten and a hundred players, depending on the weekend, and for the cost of a couple movies, you could have two and a half days' worth of solid fun. + +One day, though, they lucked into a block of rooms at the Monaco, a hotel in the Tenderloin that catered to arty older tourists, the kind of place where every room came with a goldfish bowl, where the lobby was full of beautiful old people in fine clothes, showing off their plastic surgery results. + +Normally, the mundanes -- our word for non-players -- just ignored us, figuring that we were skylarking kids. But that weekend there happened to be an editor for an Italian travel magazine staying, and he took an interest in things. He cornered me as I skulked in the lobby, hoping to spot the clan-master of my rivals and swoop in on him and draw his blood. I was standing against the wall with my arms folded over my chest, being invisible, when he came up to me and asked me, in accented English, what me and my friends were doing in the hotel that weekend? + +I tried to brush him off, but he wouldn't be put off. So I figured I'd just make something up and he'd go away. + +I didn't imagine that he'd print it. I really didn't imagine that it would get picked up by the American press. + +"We're here because our prince has died, and so we've had to come in search of a new ruler." + +"A prince?" + +"Yes," I said, getting into it. "We're the Old People. We came to America in the 16th Century and have had our own royal family in the wilds of Pennsylvania ever since. We live simply in the woods. We don't use modern technology. But the prince was the last of the line and he died last week. Some terrible wasting disease took him. The young men of my clan have left to find the descendants of his great-uncle, who went away to join the modern people in the time of my grandfather. He is said to have multiplied, and we will find the last of his bloodline and bring them back to their rightful home." + +I read a lot of fantasy novels. This kind of thing came easily to me. + +"We found a woman who knew of these descendants. She told us one was staying in this hotel, and we've come to find him. But we've been tracked here by a rival clan who would keep us from bringing home our prince, to keep us weak and easy to dominate. Thus it is vital we keep to ourselves. We do not talk to the New People when we can help it. Talking to you now causes me great discomfort." + +He was watching me shrewdly. I had uncrossed my arms, which meant that I was now "visible" to rival vampires, one of whom had been slowly sneaking up on us. At the last moment, I turned and saw her, arms spread, hissing at us, vamping it up in high style. + +I threw my arms wide and hissed back at her, then pelted through the lobby, hopping over a leather sofa and deking around a potted plant, making her chase me. I'd scouted an escape route down through the stairwell to the basement health-club and I took it, shaking her off. + +I didn't see him again that weekend, but I /{did}/ relate the story to some of my fellow LARPers, who embroidered the tale and found lots of opportunities to tell it over the weekend. + +The Italian magazine had a staffer who'd done her master's degree on Amish anti-technology communities in rural Pennsylvania, and she thought we sounded awfully interesting. Based on the notes and taped interviews of her boss from his trip to San Francisco, she wrote a fascinating, heart-wrenching article about these weird, juvenile cultists who were crisscrossing America in search of their "prince." Hell, people will print anything these days. + +But the thing was, stories like that get picked up and republished. First it was Italian bloggers, then a few American bloggers. People across the country reported "sightings" of the Old People, though whether they were making it up, or whether others were playing the same game, I didn't know. + +It worked its way up the media food-chain all the way to the /{New York Times}/, who, unfortunately, have an unhealthy appetite for fact-checking. The reporter they put on the story eventually tracked it down to the Monaco Hotel, who put them in touch with the LARP organizers, who laughingly spilled the whole story. + +Well, at that point, LARPing got a lot less cool. We became known as the nation's foremost hoaxers, as weird, pathological liars. The press who we'd inadvertently tricked into covering the story of the Old People were now interested in redeeming themselves by reporting on how unbelievably weird we LARPers were, and that was when Charles let everyone in school know that Darryl and I were the biggest LARPing weenies in the city. + +That was not a good season. Some of the gang didn't mind, but we did. The teasing was merciless. Charles led it. I'd find plastic fangs in my bag, and kids I passed in the hall would go "bleh, bleh" like a cartoon vampire, or they'd talk with fake Transylvanian accents when I was around. + +We switched to ARGing pretty soon afterwards. It was more fun in some ways, and it was a lot less weird. Every now and again, though, I missed my cape and those weekends in the hotel. + +# + +The opposite of esprit d'escalier is the way that life's embarrassments come back to haunt us even after they're long past. I could remember every stupid thing I'd ever said or done, recall them with picture-perfect clarity. Any time I was feeling low, I'd naturally start to remember other times I felt that way, a hit-parade of humiliations coming one after another to my mind. + +As I tried to concentrate on Masha and my impending doom, the Old People incident kept coming back to haunt me. There'd been a similar, sick, sinking doomed feeling then, as more and more press outlets picked up the story, as the likelihood increased of someone figuring out that it had been me who'd sprung the story on the stupid Italian editor in the designer jeans with crooked seams, the starched collarless shirt, and the oversized metal-rimmed glasses. + +There's an alternative to dwelling on your mistakes. You can learn from them. + +It's a good theory, anyway. Maybe the reason your subconscious dredges up all these miserable ghosts is that they need to get closure before they can rest peacefully in humiliation afterlife. My subconscious kept visiting me with ghosts in the hopes that I would do something to let them rest in peace. + +All the way home, I turned over this memory and the thought of what I would do about "Masha," in case she was playing me. I needed some insurance. + +And by the time I reached my house -- to be swept up into melancholy hugs from Mom and Dad -- I had it. + +# + +The trick was to time this so that it happened fast enough that the DHS couldn't prepare for it, but with a long enough lead time that the Xnet would have time to turn out in force. + +The trick was to stage this so that there were too many present to arrest us all, but to put it somewhere that the press could see it and the grownups, so the DHS wouldn't just gas us again. + +The trick was to come up with something with the media friendliness of the levitation of the Pentagon. The trick was to stage something that we could rally around, like 3,000 Berkeley students refusing to let one of their number be taken away in a police van. + +The trick was to put the press there, ready to say what the police did, the way they had in 1968 in Chicago. + +It was going to be some trick. + +I cut out of school an hour early the next day, using my customary techniques for getting out, not caring if it would trigger some kind of new DHS checker that would result in my parents getting a note. + +One way or another, my parents' last problem after tomorrow would be whether I was in trouble at school. + +I met Ange at her place. She'd had to cut out of school even earlier, but she'd just made a big deal out of her cramps and pretended she was going to keel over and they sent her home. + +We started to spread the word on Xnet. We sent it in email to trusted friends, and IMmed it to our buddy lists. We roamed the decks and towns of Clockwork Plunder and told our team-mates. Giving everyone enough information to get them to show up but not so much as to tip our hand to the DHS was tricky, but I thought I had just the right balance: + +> VAMPMOB TOMORROW + +> If you're a goth, dress to impress. If you're not a goth, find a goth and borrow some clothes. Think vampire. + +> The game starts at 8:00AM sharp. SHARP. Be there and ready to be divided into teams. The game lasts 30 minutes, so you'll have plenty of time to get to school afterward. + +> Location will be revealed tomorrow. Email your public key to m1k3y@littlebrother.pirateparty.org.se and check your messages at 7AM for the update. If that's too early for you, stay up all night. That's what we're going to do. + +> This is the most fun you will have all year, guaranteed. + +> Believe. + +> M1k3y + +Then I sent a short message to Masha. + +> Tomorrow + +> M1k3y + +A minute later, she emailed back: + +> I thought so. VampMob, huh? You work fast. Wear a red hat. Travel light. + +# + +What do you bring along when you go fugitive? I'd carried enough heavy packs around enough scout camps to know that every ounce you add cuts into your shoulders with all the crushing force of gravity with every step you take -- it's not just one ounce, it's one ounce that you carry for a million steps. It's a ton. + +"Right," Ange said. "Smart. And you never take more than three days' worth of clothes, either. You can rinse stuff out in the sink. Better to have a spot on your t-shirt than a suitcase that's too big and heavy to stash under a plane-seat." + +She'd pulled out a ballistic nylon courier bag that went across her chest, between her breasts -- something that made me get a little sweaty -- and slung diagonally across her back. It was roomy inside, and she'd set it down on the bed. Now she was piling clothes next to it. + +"I figure that three t-shirts, a pair of pants, a pair of shorts, three changes of underwear, three pairs of socks and a sweater will do it." + +She dumped out her gym bag and picked out her toiletries. "I'll have to remember to stick my toothbrush in tomorrow morning before I head down to Civic Center." + +Watching her pack was impressive. She was ruthless about it all. It was also freaky -- it made me realize that the next day, I was going to go away. Maybe for a long time. Maybe forever. + +"Do I bring my Xbox?" she asked. "I've got a ton of stuff on the hard-drive, notes and sketches and email. I wouldn't want it to fall into the wrong hands." + +"It's all encrypted," I said. "That's standard with ParanoidXbox. But leave the Xbox behind, there'll be plenty of them in LA. Just create a Pirate Party account and email an image of your hard-drive to yourself. I'm going to do the same when I get home." + +She did so, and queued up the email. It was going to take a couple hours for all the data to squeeze through her neighbor's WiFi network and wing its way to Sweden. + +Then she closed the flap on the bag and tightened the compression straps. She had something the size of a soccer-ball slung over her back now, and I stared admiringly at it. She could walk down the street with that under her shoulder and no one would look twice -- she looked like she was on her way to school. + +"One more thing," she said, and went to her bedside table and took out the condoms. She took the strips of rubbers out of the box and opened the bag and stuck them inside, then gave me a slap on the ass. + +"Now what?" I said. + +"Now we go to your place and do your stuff. It's time I met your parents, no?" + +She left the bag amid the piles of clothes and junk all over the floor. She was ready to turn her back on all of it, walk away, just to be with me. Just to support the cause. It made me feel brave, too. + +# + +Mom was already home when I got there. She had her laptop open on the kitchen table and was answering email while talking into a headset connected to it, helping some poor Yorkshireman and his family acclimate to living in Louisiana. + +I came through the door and Ange followed, grinning like mad, but holding my hand so tight I could feel the bones grinding together. I didn't know what she was so worried about. It wasn't like she was going to end up spending a lot of time hanging around with my parents after this, even if it went badly. + +Mom hung up on the Yorkshireman when we got in. + +"Hello, Marcus," she said, giving me a kiss on the cheek. "And who is this?" + +"Mom, meet Ange. Ange, this is my Mom, Lillian." Mom stood up and gave Ange a hug. + +"It's very good to meet you, darling," she said, looking her over from top to bottom. Ange looked pretty acceptable, I think. She dressed well, and low-key, and you could tell how smart she was just by looking at her. + +"A pleasure to meet you, Mrs Yallow," she said. She sounded very confident and self-assured. Much better than I had when I'd met her mom. + +"It's Lillian, love," she said. She was taking in every detail. "Are you staying for dinner?" + +"I'd love that," she said. + +"Do you eat meat?" Mom's pretty acclimated to living in California. + +"I eat anything that doesn't eat me first," she said. + +"She's a hot-sauce junkie," I said. "You could serve her old tires and she'd eat 'em if she could smother them in salsa." + +Ange socked me gently in the shoulder. + +"I was going to order Thai," Mom said. "I'll add a couple of their five-chili dishes to the order." + +Ange thanked her politely and Mom bustled around the kitchen, getting us glasses of juice and a plate of biscuits and asking three times if we wanted any tea. I squirmed a little. + +"Thanks, Mom," I said. "We're going to go upstairs for a while." + +Mom's eyes narrowed for a second, then she smiled again. "Of course," she said. "Your father will be home in an hour, we'll eat then." + +I had my vampire stuff all stashed in the back of my closet. I let Ange sort through it while I went through my clothes. I was only going as far as LA. They had stores there, all the clothing I could need. I just needed to get together three or four favorite tees and a favorite pair of jeans, a tube of deodorant, a roll of dental floss. + +"Money!" I said. + +"Yeah," she said. "I was going to clean out my bank account on the way home at an ATM. I've got maybe five hundred saved up." + +"Really?" + +"What am I going to spend it on?" she said. "Ever since the Xnet, I haven't had to even pay any service charges." + +"I think I've got three hundred or so." + +"Well, there you go. Grab it on the way to Civic Center in the morning." + +I had a big book-bag I used when I was hauling lots of gear around town. It was less conspicuous than my camping pack. Ange went through my piles mercilessly and culled them down to her favorites. + +Once it was packed and under my bed, we both sat down. + +"We're going to have to get up really early tomorrow," she said. + +"Yeah, big day." + +The plan was to get messages out with a bunch of fake VampMob locations tomorrow, sending people out to secluded spots within a few minutes' walk of Civic Center. We'd cut out a spray-paint stencil that just said VAMPMOB CIVIC CENTER -> -> that we would spray-paint at those spots around 5AM. That would keep the DHS from locking down the Civic Center before we got there. I had the mailbot ready to send out the messages at 7AM -- I'd just leave my Xbox running when I went out. + +"How long. . ." She trailed off. + +"That's what I've been wondering, too," I said. "It could be a long time, I suppose. But who knows? With Barbara's article coming out --" I'd queued an email to her for the next morning, too -- "and all, maybe we'll be heroes in two weeks." + +"Maybe," she said and sighed. + +I put my arm around her. Her shoulders were shaking. + +"I'm terrified," I said. "I think that it would be crazy not to be terrified." + +"Yeah," she said. "Yeah." + +Mom called us to dinner. Dad shook Ange's hand. He looked unshaved and worried, the way he had since we'd gone to see Barbara, but on meeting Ange, a little of the old Dad came back. She kissed him on the cheek and he insisted that she call him Drew. + +Dinner was actually really good. The ice broke when Ange took out her hot-sauce mister and treated her plate, and explained about Scoville units. Dad tried a forkful of her food and went reeling into the kitchen to drink a gallon of milk. Believe it or not, Mom still tried it after that and gave every impression of loving it. Mom, it turned out, was an undiscovered spicy food prodigy, a natural. + +Before she left, Ange pressed the hot-sauce mister on Mom. "I have a spare at home," she said. I'd watched her pack it in her backpack. "You seem like the kind of woman who should have one of these." + +1~ Chapter 19 + +/{ [This chapter is dedicated to the MIT Press Bookshop,~{ MIT Press Bookstore http://web.mit.edu/bookstore/www/ Building E38, 77 Massachusetts Ave., Cambridge, MA USA 02139-4307 +1 617 253 5249 }~ a store I've visited on every single trip to Boston over the past ten years. MIT, of course, is one of the legendary origin nodes for global nerd culture, and the campus bookstore lives up to the incredible expectations I had when I first set foot in it. In addition to the wonderful titles published by the MIT press, the bookshop is a tour through the most exciting high-tech publications in the world, from hacker zines like 2600 to fat academic anthologies on video-game design. This is one of those stores where I have to ask them to ship my purchases home because they don't fit in my suitcase.] }/ + +Here's the email that went out at 7AM the next day, while Ange and I were spray-painting VAMP-MOB CIVIC CENTER -> -> at strategic locations around town. + +> RULES FOR VAMPMOB + +> You are part of a clan of daylight vampires. You've discovered the secret of surviving the terrible light of the sun. The secret was cannibalism: the blood of another vampire can give you the strength to walk among the living. + +> You need to bite as many other vampires as you can in order to stay in the game. If one minute goes by without a bite, you're out. Once you're out, turn your shirt around backwards and go referee -- watch two or three vamps to see if they're getting their bites in. + +> To bite another vamp, you have to say "Bite!" five times before they do. So you run up to a vamp, make eye-contact, and shout "bite bite bite bite bite!" and if you get it out before she does, you live and she crumbles to dust. + +> You and the other vamps you meet at your rendezvous are a team. They are your clan. You derive no nourishment from their blood. + +> You can "go invisible" by standing still and folding your arms over your chest. You can't bite invisible vamps, and they can't bite you. + +> This game is played on the honor system. The point is to have fun and get your vamp on, not to win. + +> There is an end-game that will be passed by word of mouth as winners begin to emerge. The game-masters will start a whisper campaign among the players when the time comes. Spread the whisper as quickly as you can and watch for the sign. + +> M1k3y + +> bite bite bite bite bite! + +We'd hoped that a hundred people would be willing to play VampMob. We'd sent out about two hundred invites each. But when I sat bolt upright at 4AM and grabbed my Xbox, there were /{400}/ replies there. Four /{hundred}/. + +I fed the addresses to the bot and stole out of the house. I descended the stairs, listening to my father snore and my mom rolling over in their bed. I locked the door behind me. + +At 4:15 AM, Potrero Hill was as quiet as the countryside. There were some distant traffic rumbles, and once, a car crawled past me. I stopped at an ATM and drew out $320 in twenties, rolled them up and put a rubber-band around them, and stuck the roll in a zip-up pocket low on the thigh of my vampire pants. + +I was wearing my cape again, and a ruffled shirt, and tuxedo pants that had been modded to have enough pockets to carry all my little bits and pieces. I had on pointed boots with silver-skull buckles, and I'd teased my hair into a black dandelion clock around my head. Ange was bringing the white makeup and had promised to do my eyeliner and black nail-polish. Why the hell not? When was the next time I was going to get to play dressup like this? + +Ange met me in front of her house. She had her backpack on too, and fishnet tights, a ruffled gothic lolita maid's dress, white face-paint, elaborate kabuki eye-makeup, and her fingers and throat dripped with silver jewelry. + +"You look /{great}/!" we said to each other in unison, then laughed quietly and stole off through the streets, spray-paint cans in our pockets. + +# + +As I surveyed Civic Center, I thought about what it would look like once 400 VampMobbers converged on it. I expected them in ten minutes, out front of City Hall. Already the big plaza teemed with commuters who neatly sidestepped the homeless people begging there. + +I've always hated Civic Center. It's a collection of huge wedding-cake buildings: court houses, museums, and civic buildings like City Hall. The sidewalks are wide, the buildings are white. In the tourist guides to San Francisco, they manage to photograph it so that it looks like Epcot Center, futuristic and austere. + +But on the ground, it's grimy and gross. Homeless people sleep on all the benches. The district is empty by 6PM except for drunks and druggies, because with only one kind of building there, there's no legit reason for people to hang around after the sun goes down. It's more like a mall than a neighborhood, and the only businesses there are bail-bondsmen and liquor stores, places that cater to the families of crooks on trial and the bums who make it their nighttime home. + +I really came to understand all of this when I read an interview with an amazing old urban planner, a woman called Jane Jacobs who was the first person to really nail why it was wrong to slice cities up with freeways, stick all the poor people in housing projects, and use zoning laws to tightly control who got to do what where. + +Jacobs explained that real cities are organic and they have a lot of variety -- rich and poor, white and brown, Anglo and Mex, retail and residential and even industrial. A neighborhood like that has all kinds of people passing through it at all hours of the day or night, so you get businesses that cater to every need, you get people around all the time, acting like eyes on the street. + +You've encountered this before. You go walking around some older part of some city and you find that it's full of the coolest looking stores, guys in suits and people in fashion-rags, upscale restaurants and funky cafes, a little movie theater maybe, houses with elaborate paint-jobs. Sure, there might be a Starbucks too, but there's also a neat-looking fruit market and a florist who appears to be three hundred years old as she snips carefully at the flowers in her windows. It's the opposite of a planned space, like a mall. It feels like a wild garden or even a woods: like it /{grew}/. + +You couldn't get any further from that than Civic Center. I read an interview with Jacobs where she talked about the great old neighborhood they knocked down to build it. It had been just that kind of neighborhood, the kind of place that happened without permission or rhyme or reason. + +Jacobs said that she predicted that within a few years, Civic Center would be one of the worst neighborhoods in the city, a ghost-town at night, a place that sustained a thin crop of weedy booze shops and flea-pit motels. In the interview, she didn't seem very glad to have been vindicated; she sounded like she was talking about a dead friend when she described what Civic Center had become. + +Now it was rush hour and Civic Center was as busy as it could be. The Civic Center BART also serves as the major station for Muni trolley lines, and if you need to switch from one to another, that's where you do it. At 8AM, there were thousands of people coming up the stairs, going down the stairs, getting into and out of taxis and on and off buses. They got squeezed by DHS checkpoints by the different civic buildings, and routed around aggressive panhandlers. They all smelled like their shampoos and colognes, fresh out of the shower and armored in their work suits, swinging laptop bags and briefcases. At 8AM, Civic Center was business central. + +And here came the vamps. A couple dozen coming down Van Ness, a couple dozen coming up Market. More coming from the other side of Market. More coming up from Van Ness. They slipped around the side of the buildings, wearing the white face-paint and the black eyeliner, black clothes, leather jackets, huge stompy boots. Fishnet fingerless gloves. + +They began to fill up the plaza. A few of the business people gave them passing glances and then looked away, not wanting to let these weirdos into their personal realities as they thought about whatever crap they were about to wade through for another eight hours. The vamps milled around, not sure when the game was on. They pooled together in large groups, like an oil spill in reverse, all this black gathering in one place. A lot of them sported old-timey hats, bowlers and toppers. Many of the girls were in full-on elegant gothic lolita maid costumes with huge platforms. + +I tried to estimate the numbers. 200. Then, five minutes later, it was 300. 400. They were still streaming in. The vamps had brought friends. + +Someone grabbed my ass. I spun around and saw Ange, laughing so hard she had to hold her thighs, bent double. + +"Look at them all, man, look at them all!" she gasped. The square was twice as crowded as it had been a few minutes ago. I had no idea how many Xnetters there were, but easily 1000 of them had just showed up to my little party. Christ. + +The DHS and SFPD cops were starting to mill around, talking into their radios and clustering together. I heard a far-away siren. + +"All right," I said, shaking Ange by the arm. "All right, let's /{go}/." + +We both slipped off into the crowd and as soon as we encountered our first vamp, we both said, loudly, "Bite bite bite bite bite!" My victim was a stunned -- but cute -- girl with spider-webs drawn on her hands and smudged mascara running down her cheeks. She said, "Crap," and moved away, acknowledging that I'd gotten her. + +The call of "bite bite bite bite bite" had scrambled the other nearby vamps. Some of them were attacking each other, others were moving for cover, hiding out. I had my victim for the minute, so I skulked away, using mundanes for cover. All around me, the cry of "bite bite bite bite bite!" and shouts and laughs and curses. + +The sound spread like a virus through the crowd. All the vamps knew the game was on now, and the ones who were clustered together were dropping like flies. They laughed and cussed and moved away, clueing the still-in vamps that the game was on. And more vamps were arriving by the second. + +8:16. It was time to bag another vamp. I crouched low and moved through the legs of the straights as they headed for the BART stairs. They jerked back with surprise and swerved to avoid me. I had my eyes laser-locked on a set of black platform boots with steel dragons over the toes, and so I wasn't expecting it when I came face to face with another vamp, a guy of about 15 or 16, hair gelled straight back and wearing a PVC Marilyn Manson jacket draped with necklaces of fake tusks carved with intricate symbols. + +"Bite bite bite --" he began, when one of the mundanes tripped over him and they both went sprawling. I leapt over to him and shouted "bite bite bite bite bite!" before he could untangle himself again. + +More vamps were arriving. The suits were really freaking out. The game overflowed the sidewalk and moved into Van Ness, spreading up toward Market Street. Drivers honked, the trolleys made angry /{ding}/s. I heard more sirens, but now traffic was snarled in every direction. + +It was freaking /{glorious}/. + +BITE BITE BITE BITE BITE! + +The sound came from all around me. There were so many vamps there, playing so furiously, it was like a roar. I risked standing up and looking around and found that I was right in the middle of a giant crowd of vamps that went as far as I could see in every direction. + +BITE BITE BITE BITE BITE! + +This was even better than the concert in Dolores Park. That had been angry and rockin', but this was -- well, it was just /{fun}/. It was like going back to the playground, to the epic games of tag we'd play on lunch breaks when the sun was out, hundreds of people chasing each other around. The adults and the cars just made it more fun, more funny. + +That's what it was: it was /{funny}/. We were all laughing now. + +But the cops were really mobilizing now. I heard helicopters. Any second now, it would be over. Time for the endgame. + +I grabbed a vamp. + +"Endgame: when the cops order us to disperse, pretend you've been gassed. Pass it on. What did I just say?" + +The vamp was a girl, tiny, so short I thought she was really young, but she must have been 17 or 18 from her face and the smile. "Oh, that's wicked," she said. + +"What did I say?" + +"Endgame: when the cops order us to disperse, pretend you've been gassed. Pass it on. What did I just say?" + +"Right," I said. "Pass it on." + +She melted into the crowd. I grabbed another vamp. I passed it on. He went off to pass it on. + +Somewhere in the crowd, I knew Ange was doing this too. Somewhere in the crowd, there might be infiltrators, fake Xnetters, but what could they do with this knowledge? It's not like the cops had a choice. They were going to order us to disperse. That was guaranteed. + +I had to get to Ange. The plan was to meet at the Founder's Statue in the Plaza, but reaching it was going to be hard. The crowd wasn't moving anymore, it was /{surging}/, like the mob had in the way down to the BART station on the day the bombs went off. I struggled to make my way through it just as the PA underneath the helicopter switched on. + +"THIS IS THE DEPARTMENT OF HOMELAND SECURITY. YOU ARE ORDERED TO DISPERSE IMMEDIATELY." + +Around me, hundreds of vamps fell to the ground, clutching their throats, clawing at their eyes, gasping for breath. It was easy to fake being gassed, we'd all had plenty of time to study the footage of the partiers in Mission Dolores Park going down under the pepper-spray clouds. + +"DISPERSE IMMEDIATELY." + +I fell to the ground, protecting my pack, reaching around to the red baseball hat folded into the waistband of my pants. I jammed it on my head and then grabbed my throat and made horrendous retching noises. + +The only ones still standing were the mundanes, the salarymen who'd been just trying to get to their jobs. I looked around as best as I could at them as I choked and gasped. + +"THIS IS THE DEPARTMENT OF HOMELAND SECURITY. YOU ARE ORDERED TO DISPERSE IMMEDIATELY. DISPERSE IMMEDIATELY." The voice of god made my bowels ache. I felt it in my molars and in my femurs and my spine. + +The salarymen were scared. They were moving as fast as they could, but in no particular direction. The helicopters seemed to be directly overhead no matter where you stood. The cops were wading into the crowd now, and they'd put on their helmets. Some had shields. Some had gas masks. I gasped harder. + +Then the salarymen were running. I probably would have run too. I watched a guy whip a $500 jacket off and wrap it around his face before heading south toward Mission, only to trip up and go sprawling. His curses joined the choking sounds. + +This wasn't supposed to happen -- the choking was just supposed to freak people out and get them confused, not panic them into a stampede. + +There were screams now, screams I recognized all too well from the night in the park. That was the sound of people who were scared spitless, running into each other as they tried like hell to get away. + +And then the air-raid sirens began. + +I hadn't heard that sound since the bombs went off, but I would never forget it. It sliced through me and went straight into my balls, turning my legs into jelly on the way. It made me want to run away in a panic. I got to my feet, red cap on my head, thinking of only one thing: Ange. Ange and the Founders' Statue. + +Everyone was on their feet now, running in all directions, screaming. I pushed people out of my way, holding onto my pack and my hat, heading for Founders' Statue. Masha was looking for me, I was looking for Ange. Ange was out there. + +I pushed and cursed. Elbowed someone. Someone came down on my foot so hard I felt something go /{crunch}/ and I shoved him so he went down. He tried to get up and someone stepped on him. I shoved and pushed. + +Then I reached out my arm to shove someone else and strong hands grabbed my wrist and my elbow in one fluid motion and brought my arm back around behind my back. It felt like my shoulder was about to wrench out of its socket, and I instantly doubled over, hollering, a sound that was barely audible over the din of the crowd, the thrum of the choppers, the wail of the sirens. + +I was brought back upright by the strong hands behind me, which steered me like a marionette. The hold was so perfect I couldn't even think of squirming. I couldn't think of the noise or the helicopter or Ange. All I could think of was moving the way that the person who had me wanted me to move. I was brought around so that I was face-to-face with the person. + +It was a girl whose face was sharp and rodent-like, half-hidden by a giant pair of sunglasses. Over the sunglasses, a mop of bright pink hair, spiked out in all directions. + +"You!" I said. I knew her. She'd taken a picture of me and threatened to rat me out to truant watch. That had been five minutes before the alarms started. She'd been the one, ruthless and cunning. We'd both run from that spot in the Tenderloin as the klaxon sounded behind us, and we'd both been picked up by the cops. I'd been hostile and they'd decided that I was an enemy. + +She -- Masha -- became their ally. + +"Hello, M1k3y," she hissed in my ear, close as a lover. A shiver went up my back. She let go of my arm and I shook it out. + +"Christ," I said. "You!" + +"Yes, me," she said. "The gas is gonna come down in about two minutes. Let's haul ass." + +"Ange -- my girlfriend -- is by the Founders' Statue." + +Masha looked over the crowd. "No chance," she said. "We try to make it there, we're doomed. The gas is coming down in two minutes, in case you missed it the first time." + +I stopped moving. "I don't go without Ange," I said. + +She shrugged. "Suit yourself," she shouted in my ear. "Your funeral." + +She began to push through the crowd, moving away, north, toward downtown. I continued to push for the Founders' Statue. A second later, my arm was back in the terrible lock and I was being swung around and propelled forward. + +"You know too much, jerk-off," she said. "You've seen my face. You're coming with me." + +I screamed at her, struggled till it felt like my arm would break, but she was pushing me forward. My sore foot was agony with every step, my shoulder felt like it would break. + +With her using me as a battering ram, we made good progress through the crowd. The whine of the helicopters changed and she gave me a harder push. "RUN!" she yelled. "Here comes the gas!" + +The crowd noise changed, too. The choking sounds and scream sounds got much, much louder. I'd heard that pitch of sound before. We were back in the park. The gas was raining down. I held my breath and /{ran}/. + +We cleared the crowd and she let go of my arm. I shook it out. I limped as fast as I could up the sidewalk as the crowd thinned and thinned. We were heading towards a group of DHS cops with riot shields and helmets and masks. As we drew near them, they moved to block us, but Masha held up a badge and they melted away like she was Obi Wan Kenobi, saying "These aren't the droids you're looking for." + +"You goddamned /{bitch}/," I said as we sped up Market Street. "We have to go back for Ange." + +She pursed her lips and shook her head. "I feel for you, buddy. I haven't seen my boyfriend in months. He probably thinks I'm dead. Fortunes of war. We go back for your Ange, we're dead. If we push on, we have a chance. So long as we have a chance, she has a chance. Those kids aren't all going to Gitmo. They'll probably take a few hundred in for questioning and send the rest home." + +We were moving up Market Street now, past the strip joints where the little encampments of bums and junkies sat, stinking like open toilets. Masha guided me to a little alcove in the shut door of one of the strip places. She stripped off her jacket and turned it inside out -- the lining was a muted stripe pattern, and with the jacket's seams reversed, it hung differently. She produced a wool hat from her pocket and pulled it over her hair, letting it form a jaunty, off-center peak. Then she took out some make-up remover wipes and went to work on her face and fingernails. In a minute, she was a different woman. + +"Wardrobe change," she said. "Now you. Lose the shoes, lose the jacket, lose the hat." I could see her point. The cops would be looking very carefully at anyone who looked like they'd been a part of the VampMob. I ditched the hat entirely -- I'd never liked ball caps. Then I jammed the jacket into my pack and got out a long-sleeved tee with a picture of Rosa Luxembourg on it and pulled it over my black tee. I let Masha wipe my makeup off and clean my nails and a minute later, I was clean. + +"Switch off your phone," she said. "You carrying any arphids?" + +I had my student card, my ATM card, my Fast Pass. They all went into a silvered bag she held out, which I recognized as a radio-proof Faraday pouch. But as she put them in her pocket, I realized I'd just turned my ID over to her. If she was on the other side... + +The magnitude of what had just happened began to sink in. In my mind, I'd pictured having Ange with me at this point. Ange would make it two against one. Ange would help me see if there was something amiss. If Masha wasn't all she said she was. + +"Put these pebbles in your shoes before you put them on --" + +"It's OK. I sprained my foot. No gait recognition program will spot me now." + +She nodded once, one pro to another, and slung her pack. I picked up mine and we moved. The total time for the changeover was less than a minute. We looked and walked like two different people. + +She looked at her watch and shook her head. "Come on," she said. "We have to make our rendezvous. Don't think of running, either. You've got two choices now. Me, or jail. They'll be analyzing the footage from that mob for days, but once they're done, every face in it will go in a database. Our departure will be noted. We are both wanted criminals now." + +# + +She got us off Market Street on the next block, swinging back into the Tenderloin. I knew this neighborhood. This was where we'd gone hunting for an open WiFi access-point back on the day, playing Harajuku Fun Madness. + +"Where are we going?" I said. + +"We're about to catch a ride," she said. "Shut up and let me concentrate." + +We moved fast, and sweat streamed down my face from under my hair, coursed down my back and slid down the crack of my ass and my thighs. My foot was /{really}/ hurting and I was seeing the streets of San Francisco race by, maybe for the last time, ever. + +It didn't help that we were ploughing straight uphill, moving for the zone where the seedy Tenderloin gives way to the nosebleed real-estate values of Nob Hill. My breath came in ragged gasps. She moved us mostly up narrow alleys, using the big streets just to get from one alley to the next. + +We were just stepping into one such alley, Sabin Place, when someone fell in behind us and said, "Freeze right there." It was full of evil mirth. We stopped and turned around. + +At the mouth of the alley stood Charles, wearing a halfhearted VampMob outfit of black t-shirt and jeans and white face-paint. "Hello, Marcus," he said. "You going somewhere?" He smiled a huge, wet grin. "Who's your girlfriend?" + +"What do you want, Charles?" + +"Well, I've been hanging out on that traitorous Xnet ever since I spotted you giving out DVDs at school. When I heard about your VampMob, I thought I'd go along and hang around the edges, just to see if you showed up and what you did. You know what I saw?" + +I said nothing. He had his phone in his hand, pointed at us. Recording. Maybe ready to dial 911. Beside me, Masha had gone still as a board. + +"I saw you /{leading}/ the damned thing. And I /{recorded}/ it, Marcus. So now I'm going to call the cops and we're going to wait right here for them. And then you're going to go to pound-you-in-the-ass prison, for a long, long time." + +Masha stepped forward. + +"Stop right there, chickie," he said. "I saw you get him away. I saw it all --" + +She took another step forward and snatched the phone out of his hand, reaching behind her with her other hand and bringing it out holding a wallet open. + +"DHS, dick-head," she said. "I'm DHS. I've been running this twerp back to his masters to see where he went. I /{was}/ doing that. Now you've blown it. We have a name for that. We call it 'Obstruction of National Security.' You're about to hear that phrase a lot more often." + +Charles took a step backward, his hands held up in front of him. He'd gone even paler under his makeup. "What? No! I mean -- I didn't know! I was trying to /{help}/!" + +"The last thing we need is a bunch of high school Junior G-men 'helping' buddy. You can tell it to the judge." + +He moved back again, but Masha was fast. She grabbed his wrist and twisted him into the same judo hold she'd had me in back at Civic Center. Her hand dipped back to her pockets and came out holding a strip of plastic, a handcuff strip, which she quickly wound around his wrists. + +That was the last thing I saw as I took off running. + +# + +I made it as far as the other end of the alley before she caught up with me, tackling me from behind and sending me sprawling. I couldn't move very fast, not with my hurt foot and the weight of my pack. I went down in a hard face-plant and skidded, grinding my cheek into the grimy asphalt. + +"Jesus," she said. "You're a goddamned idiot. You didn't /{believe}/ that, did you?" + +My heart thudded in my chest. She was on top of me and slowly she let me up. + +"Do I need to cuff you, Marcus?" + +I got to my feet. I hurt all over. I wanted to die. + +"Come on," she said. "It's not far now." + +# + +'It' turned out to be a moving van on a Nob Hill side-street, a sixteen-wheeler the size of one of the ubiquitous DHS trucks that still turned up on San Francisco's street corners, bristling with antennas. + +This one, though, said "Three Guys and a Truck Moving" on the side, and the three guys were very much in evidence, trekking in and out of a tall apartment building with a green awning. They were carrying crated furniture, neatly labeled boxes, loading them one at a time onto the truck and carefully packing them there. + +She walked us around the block once, apparently unsatisfied with something, then, on the next pass, she made eye-contact with the man who was watching the van, an older black guy with a kidney-belt and heavy gloves. He had a kind face and he smiled at us as she led us quickly, casually up the truck's three stairs and into its depth. "Under the big table," he said. "We left you some space there." + +The truck was more than half full, but there was a narrow corridor around a huge table with a quilted blanket thrown over it and bubble-wrap wound around its legs. + +Masha pulled me under the table. It was stuffy and still and dusty under there, and I suppressed a sneeze as we scrunched in among the boxes. The space was so tight that we were on top of each other. I didn't think that Ange would have fit in there. + +"Bitch," I said, looking at Masha. + +"Shut up. You should be licking my boots thanking me. You would have ended up in jail in a week, two tops. Not Gitmo-by-the-Bay. Syria, maybe. I think that's where they sent the ones they really wanted to disappear." + +I put my head on my knees and tried to breathe deeply. + +"Why would you do something so stupid as declaring war on the DHS anyway?" + +I told her. I told her about being busted and I told her about Darryl. + +She patted her pockets and came up with a phone. It was Charles's. "Wrong phone." She came up with another phone. She turned it on and the glow from its screen filled our little fort. After fiddling for a second, she showed it to me. + +It was the picture she'd snapped of us, just before the bombs blew. It was the picture of Jolu and Van and me and -- + +Darryl. + +I was holding in my hand proof that Darryl had been with us minutes before we'd all gone into DHS custody. Proof that he'd been alive and well and in our company. + +"You need to give me a copy of this," I said. "I need it." + +"When we get to LA," she said, snatching the phone back. "Once you've been briefed on how to be a fugitive without getting both our asses caught and shipped to Syria. I don't want you getting rescue ideas about this guy. He's safe enough where he is -- for now." + +I thought about trying to take it from her by force, but she'd already demonstrated her physical skill. She must have been a black-belt or something. + +We sat there in the dark, listening to the three guys load the truck with box after box, tying things down, grunting with the effort of it. I tried to sleep, but couldn't. Masha had no such problem. She snored. + +There was still light shining through the narrow, obstructed corridor that led to the fresh air outside. I stared at it, through the gloom, and thought of Ange. + +My Ange. Her hair brushing her shoulders as she turned her head from side to side, laughing at something I'd done. Her face when I'd seen her last, falling down in the crowd at VampMob. All those people at VampMob, like the people in the park, down and writhing, the DHS moving in with truncheons. The ones who disappeared. + +Darryl. Stuck on Treasure Island, his side stitched up, taken out of his cell for endless rounds of questioning about the terrorists. + +Darryl's father, ruined and boozy, unshaven. Washed up and in his uniform, "for the photos." Weeping like a little boy. + +My own father, and the way that he had been changed by my disappearance to Treasure Island. He'd been just as broken as Darryl's father, but in his own way. And his face, when I told him where I'd been. + +That was when I knew that I couldn't run. + +That was when I knew that I had to stay and fight. + +# + +Masha's breathing was deep and regular, but when I reached with glacial slowness into her pocket for her phone, she snuffled a little and shifted. I froze and didn't even breathe for a full two minutes, counting one hippopotami, two hippopotami. + +Slowly, her breath deepened again. I tugged the phone free of her jacket-pocket one millimeter at a time, my fingers and arm trembling with the effort of moving so slowly. + +Then I had it, a little candy-bar shaped thing. + +I turned to head for the light, when I had a flash of memory: Charles, holding out his phone, waggling it at us, taunting us. It had been a candy-bar-shaped phone, silver, plastered in the logos of a dozen companies that had subsidized the cost of the handset through the phone company. It was the kind of phone where you had to listen to a commercial every time you made a call. + +It was too dim to see the phone clearly in the truck, but I could feel it. Were those company decals on its sides? Yes? Yes. I had just stolen /{Charles's}/ phone from Masha. + +I turned back around slowly, slowly, and slowly, slowly, /{slowly}/, I reached back into her pocket. /{Her}/ phone was bigger and bulkier, with a better camera and who knew what else? + +I'd been through this once before -- that made it a little easier. Millimeter by millimeter again, I teased it free of her pocket, stopping twice when she snuffled and twitched. + +I had the phone free of her pocket and I was beginning to back away when her hand shot out, fast as a snake, and grabbed my wrist, hard, fingertips grinding away at the small, tender bones below my hand. + +I gasped and stared into Masha's wide-open, staring eyes. + +"You are such an idiot," she said, conversationally, taking the phone from me, punching at its keypad with her other hand. "How did you plan on unlocking this again?" + +I swallowed. I felt bones grind against each other in my wrist. I bit my lip to keep from crying out. + +She continued to punch away with her other hand. "Is this what you thought you'd get away with?" She showed me the picture of all of us, Darryl and Jolu, Van and me. "This picture?" + +I didn't say anything. My wrist felt like it would shatter. + +"Maybe I should just delete it, take temptation out of your way." Her free hand moved some more. Her phone asked her if she was sure and she had to look at it to find the right button. + +That's when I moved. I had Charles's phone in my other hand still, and I brought it down on her crushing hand as hard as I could, banging my knuckles on the table overhead. I hit her hand so hard the phone shattered and she yelped and her hand went slack. I was still moving, reaching for her other hand, for her now-unlocked phone with her thumb still poised over the OK key. Her fingers spasmed on the empty air as I snatched the phone out of her hand. + +I moved down the narrow corridor on hands and knees, heading for the light. I felt her hands slap at my feet and ankles twice, and I had to shove aside some of the boxes that had walled us in like a Pharaoh in a tomb. A few of them fell down behind me, and I heard Masha grunt again. + +The rolling truck door was open a crack and I dove for it, slithering out under it. The steps had been removed and I found myself hanging over the road, sliding headfirst into it, clanging my head off the blacktop with a thump that rang my ears like a gong. I scrambled to my feet, holding the bumper, and desperately dragged down on the door-handle, slamming it shut. Masha screamed inside -- I must have caught her fingertips. I felt like throwing up, but I didn't. + +I padlocked the truck instead. + +1~ Chapter 20 + +_1 /{ [This chapter is dedicated to The Tattered Cover,~{ The Tattered Cover http://www.tatteredcover.com/NASApp/store/Product?s=showproduct&isbn=9780765319852 1628 16th St., Denver, CO USA 80202 +1 303 436 1070 }~ Denver's legendary independent bookstore. I happened upon The Tattered Cover quite by accident: Alice and I had just landed in Denver, coming in from London, and it was early and cold and we needed coffee. We drove in aimless rental-car circles, and that's when I spotted it, the Tattered Cover's sign. Something about it tingled in my hindbrain -- I knew I'd heard of this place. We pulled in (got a coffee) and stepped into the store -- a wonderland of dark wood, homey reading nooks, and miles and miles of bookshelves.] }/ + +None of the three guys were around at the moment, so I took off. My head hurt so much I thought I must be bleeding, but my hands came away dry. My twisted ankle had frozen up in the truck so that I ran like a broken marionette, and I stopped only once, to cancel the photo-deletion on Masha's phone. I turned off its radio -- both to save battery and to keep it from being used to track me -- and set the sleep timer to two hours, the longest setting available. I tried to set it to not require a password to wake from sleep, but that required a password itself. I was just going to have to tap the keypad at least once every two hours until I could figure out how to get the photo off of the phone. I would need a charger, then. + +I didn't have a plan. I needed one. I needed to sit down, to get online -- to figure out what I was going to do next. I was sick of letting other people do my planning for me. I didn't want to be acting because of what Masha did, or because of the DHS, or because of my dad. Or because of Ange? Well, maybe I'd act because of Ange. That would be just fine, in fact. + +I'd just been slipping downhill, taking alleys when I could, merging with the Tenderloin crowds. I didn't have any destination in mind. Every few minutes, I put my hand in my pocket and nudged one of the keys on Masha's phone to keep it from going asleep. It made an awkward bulge, unfolded there in my jacket. + +I stopped and leaned against a building. My ankle was killing me. Where was I, anyway? + +O'Farrell, at Hyde Street. In front of a dodgy "Asian Massage Parlor." My traitorous feet had taken me right back to the beginning -- taken me back to where the photo on Masha's phone had been taken, seconds before the Bay Bridge blew, before my life changed forever. + +I wanted to sit down on the sidewalk and bawl, but that wouldn't solve my problems. I had to call Barbara Stratford, tell her what had happened. Show her the photo of Darryl. + +What was I thinking? I had to show her the video, the one that Masha had sent me -- the one where the President's Chief of Staff gloated at the attacks on San Francisco and admitted that he knew when and where the next attacks would happen and that he wouldn't stop them because they'd help his man get re-elected. + +That was a plan, then: get in touch with Barbara, give her the documents, and get them into print. The VampMob had to have really freaked people out, made them think that we really were a bunch of terrorists. Of course, when I'd been planning it, I had been thinking of how good a distraction it would be, not how it would look to some NASCAR Dad in Nebraska. + +I'd call Barbara, and I'd do it smart, from a payphone, putting my hood up so that the inevitable CCTV wouldn't get a photo of me. I dug a quarter out of my pocket and polished it on my shirt-tail, getting the fingerprints off it. + +I headed downhill, down and down to the BART station and the payphones there. I made it to the trolley-car stop when I spotted the cover of the week's /{Bay Guardian}/, stacked in a high pile next to a homeless black guy who smiled at me. "Go ahead and read the cover, it's free -- it'll cost you fifty cents to look inside, though." + +The headline was set in the biggest type I'd seen since 9/11: + +INSIDE GITMO-BY-THE-BAY + +Beneath it, in slightly smaller type: + +"How the DHS has kept our children and friends in secret prisons on our doorstep. + +"By Barbara Stratford, Special to the Bay Guardian" + +The newspaper seller shook his head. "Can you believe that?" he said. "Right here in San Francisco. Man, the government /{sucks}/." + +Theoretically, the /{Guardian}/ was free, but this guy appeared to have cornered the local market for copies of it. I had a quarter in my hand. I dropped it into his cup and fished for another one. I didn't bother polishing the fingerprints off of it this time. + +"We're told that the world changed forever when the Bay Bridge was blown up by parties unknown. Thousands of our friends and neighbors died on that day. Almost none of them have been recovered; their remains are presumed to be resting in the city's harbor. + +"But an extraordinary story told to this reporter by a young man who was arrested by the DHS minutes after the explosion suggests that our own government has illegally held many of those thought dead on Treasure Island, which had been evacuated and declared off-limits to civilians shortly after the bombing..." + +I sat down on a bench -- the same bench, I noted with a prickly hair-up-the-neck feeling, where we'd rested Darryl after escaping from the BART station -- and read the article all the way through. It took a huge effort not to burst into tears right there. Barbara had found some photos of me and Darryl goofing around together and they ran alongside the text. The photos were maybe a year old, but I looked so much /{younger}/ in them, like I was 10 or 11. I'd done a lot of growing up in the past couple months. + +The piece was beautifully written. I kept feeling outraged on behalf of the poor kids she was writing about, then remembering that she was writing about /{me}/. Zeb's note was there, his crabbed handwriting reproduced in large, a half-sheet of the newspaper. Barbara had dug up more info on other kids who were missing and presumed dead, a long list, and asked how many had been stuck there on the island, just a few miles from their parents' doorsteps. + +I dug another quarter out of my pocket, then changed my mind. What was the chance that Barbara's phone wasn't tapped? There was no way I was going to be able to call her now, not directly. I needed some intermediary to get in touch with her and get her to meet me somewhere south. So much for plans. + +What I really, really needed was the Xnet. + +How the hell was I going to get online? My phone's wifinder was blinking like crazy -- there was wireless all around me, but I didn't have an Xbox and a TV and a ParanoidXbox DVD to boot from. WiFi, WiFi everywhere... + +That's when I spotted them. Two kids, about my age, moving among the crowd at the top of the stairs down into the BART. + +What caught my eye was the way they were moving, kind of clumsy, nudging up against the commuters and the tourists. Each had a hand in his pocket, and whenever they met one another's eye, they snickered. They couldn't have been more obvious jammers, but the crowd was oblivious to them. Being down in that neighborhood, you expect to be dodging homeless people and crazies, so you don't make eye contact, don't look around at all if you can help it. + +I sidled up to one. He seemed really young, but he couldn't have been any younger than me. + +"Hey," I said. "Hey, can you guys come over here for a second?" + +He pretended not to hear me. He looked right through me, the way you would a homeless person. + +"Come on," I said. "I don't have a lot of time." I grabbed his shoulder and hissed in his ear. "The cops are after me. I'm from Xnet." + +He looked scared now, like he wanted to run away, and his friend was moving toward us. "I'm serious," I said. "Just hear me out." + +His friend came over. He was taller, and beefy -- like Darryl. "Hey," he said. "Something wrong?" + +His friend whispered in his ear. The two of them looked like they were going to bolt. + +I grabbed my copy of the /{Bay Guardian}/ from under my arm and rattled it in front of them. "Just turn to page 5, OK?" + +They did. They looked at the headline. The photo. Me. + +"Oh, dude," the first one said. "We are /{so}/ not worthy." He grinned at me like crazy, and the beefier one slapped me on the back. + +"No /{way}/ --" he said. "You're M --" + +I put a hand over his mouth. "Come over here, OK?" + +I brought them back to my bench. I noticed that there was something old and brown staining the sidewalk underneath it. Darryl's blood? It made my skin pucker up. We sat down. + +"I'm Marcus," I said, swallowing hard as I gave my real name to these two who already knew me as M1k3y. I was blowing my cover, but the /{Bay Guardian}/ had already made the connection for me. + +"Nate," the small one said. "Liam," the bigger one said. "Dude, it is /{such}/ an honor to meet you. You're like our all-time hero --" + +"Don't say that," I said. "Don't say that. You two are like a flashing advertisement that says, 'I am jamming, please put my ass in Gitmo-by-the-Bay. You couldn't be more obvious." + +Liam looked like he might cry. + +"Don't worry, you didn't get busted. I'll give you some tips, later." He brightened up again. What was becoming weirdly clear was that these two really /{did}/ idolize M1k3y, and that they'd do anything I said. They were grinning like idiots. It made me uncomfortable, sick to my stomach. + +"Listen, I need to get on Xnet, now, without going home or anywhere near home. Do you two live near here?" + +"I do," Nate said. "Up at the top of California Street. It's a bit of a walk -- steep hills." I'd just walked all the way down them. Masha was somewhere up there. But still, it was better than I had any right to expect. + +"Let's go," I said. + +# + +Nate loaned me his baseball hat and traded jackets with me. I didn't have to worry about gait-recognition, not with my ankle throbbing the way it was -- I limped like an extra in a cowboy movie. + +Nate lived in a huge four-bedroom apartment at the top of Nob Hill. The building had a doorman, in a red overcoat with gold brocade, and he touched his cap and called Nate, "Mr Nate" and welcomed us all there. The place was spotless and smelled of furniture polish. I tried not to gawp at what must have been a couple million bucks' worth of condo. + +"My dad," he explained. "He was an investment banker. Lots of life insurance. He died when I was 14 and we got it all. They'd been divorced for years, but he left my mom as beneficiary." + +From the floor-to-ceiling window, you could see a stunning view of the other side of Nob Hill, all the way down to Fisherman's Wharf, to the ugly stub of the Bay Bridge, the crowd of cranes and trucks. Through the mist, I could just make out Treasure Island. Looking down all that way, it gave me a crazy urge to jump. + +I got online with his Xbox and a huge plasma screen in the living room. He showed me how many open WiFi networks were visible from his high vantage point -- twenty, thirty of them. This was a good spot to be an Xnetter. + +There was a /{lot}/ of email in my M1k3y account. 20,000 new messages since Ange and I had left her place that morning. Lots of it was from the press, asking for followup interviews, but most of it was from the Xnetters, people who'd seen the /{Guardian}/ story and wanted to tell me that they'd do anything to help me, anything I needed. + +That did it. Tears started to roll down my cheeks. + +Nate and Liam exchanged glances. I tried to stop, but it was no good. I was sobbing now. Nate went to an oak book-case on one wall and swung a bar out of one of its shelves, revealing gleaming rows of bottles. He poured me a shot of something golden brown and brought it to me. + +"Rare Irish whiskey," he said. "Mom's favorite." + +It tasted like fire, like gold. I sipped at it, trying not to choke. I didn't really like hard liquor, but this was different. I took several deep breaths. + +"Thanks, Nate," I said. He looked like I'd just pinned a medal on him. He was a good kid. + +"All right," I said, and picked up the keyboard. The two boys watched in fascination as I paged through my mail on the gigantic screen. + +What I was looking for, first and foremost, was email from Ange. There was a chance that she'd just gotten away. There was always that chance. + +I was an idiot to even hope. There was nothing from her. I started going through the mail as fast as I could, picking apart the press requests, the fan mail, the hate mail, the spam... + +And that's when I found it: a letter from Zeb. + +"It wasn't nice to wake up this morning and find the letter that I thought you would destroy in the pages of the newspaper. Not nice at all. Made me feel -- hunted. + +"But I've come to understand why you did it. I don't know if I can approve of your tactics, but it's easy to see that your motives were sound. + +"If you're reading this, that means that there's a good chance you've gone underground. It's not easy. I've been learning that. I've been learning a lot more. + +"I can help you. I should do that for you. You're doing what you can for me. (Even if you're not doing it with my permission.) + +"Reply if you get this, if you're on the run and alone. Or reply if you're in custody, being run by our friends on Gitmo, looking for a way to make the pain stop. If they've got you, you'll do what they tell you. I know that. I'll take that risk. + +"For you, M1k3y." + +"Wooooah," Liam breathed. "Duuuuude." I wanted to smack him. I turned to say something awful and cutting to him, but he was staring at me with eyes as big as saucers, looking like he wanted to drop to his knees and worship me. + +"Can I just say," Nate said, "can I just say that it is the biggest honor of my entire life to help you? Can I just say that?" + +I was blushing now. There was nothing for it. These two were totally star-struck, even though I wasn't any kind of star, not in my own mind at least. + +"Can you guys --" I swallowed. "Can I have some privacy here?" + +They slunk out of the room like bad puppies and I felt like a tool. I typed fast. + +"I got away, Zeb. And I'm on the run. I need all the help I can get. I want to end this now." I remembered to take Masha's phone out of my pocket and tickle it to keep it from going to sleep. + +They let me use the shower, gave me a change of clothes, a new backpack with half their earthquake kit in it -- energy bars, medicine, hot and cold packs, and an old sleeping-bag. They even slipped a spare Xbox Universal already loaded with ParanoidXbox on it into there. That was a nice touch. I had to draw the line at a flaregun. + +I kept on checking my email to see if Zeb had replied. I answered the fan mail. I answered the mail from the press. I deleted the hate mail. I was half-expecting to see something from Masha, but chances were she was halfway to LA by now, her fingers hurt, and in no position to type. I tickled her phone again. + +They encouraged me to take a nap and for a brief, shameful moment, I got all paranoid like maybe these guys were thinking of turning me in once I was asleep. Which was idiotic -- they could have turned me in just as easily when I was awake. I just couldn't compute the fact that they thought /{so much}/ of me. I had known, intellectually, that there were people who would follow M1k3y. I'd met some of those people that morning, shouting BITE BITE BITE and vamping it up at Civic Center. But these two were more personal. They were just nice, goofy guys, they coulda been any of my friends back in the days before the Xnet, just two pals who palled around having teenage adventures. They'd volunteered to join an army, my army. I had a responsibility to them. Left to themselves, they'd get caught, it was only a matter of time. They were too trusting. + +"Guys, listen to me for a second. I have something serious I need to talk to you about." + +They almost stood at attention. It would have been funny if it wasn't so scary. + +"Here's the thing. Now that you've helped me, it's really dangerous. If you get caught, I'll get caught. They'll get anything you know out of you --" I held up my hand to forestall their protests. "No, stop. You haven't been through it. Everyone talks. Everyone breaks. If you're ever caught, you tell them everything, right away, as fast as you can, as much as you can. They'll get it all eventually anyway. That's how they work. + +"But you won't get caught, and here's why: you're not jammers anymore. You are retired from active duty. You're a --" I fished in my memory for vocabulary words culled from spy thrillers -- "you're a sleeper cell. Stand down. Go back to being normal kids. One way or another, I'm going to break this thing, break it wide open, end it. Or it will get me, finally, do me in. If you don't hear from me within 72 hours, assume that they got me. Do whatever you want then. But for the next three days -- and forever, if I do what I'm trying to do -- stand down. Will you promise me that?" + +They promised with all solemnity. I let them talk me into napping, but made them swear to rouse me once an hour. I'd have to tickle Masha's phone and I wanted to know as soon as Zeb got back in touch with me. + +# + +The rendezvous was on a BART car, which made me nervous. They're full of cameras. But Zeb knew what he was doing. He had me meet him in the last car of a certain train departing from Powell Street Station, at a time when that car was filled with the press of bodies. He sidled up to me in the crowd, and the good commuters of San Francisco cleared a space for him, the hollow that always surrounds homeless people. + +"Nice to see you again," he muttered, facing into the doorway. Looking into the dark glass, I could see that there was no one close enough to eavesdrop -- not without some kind of high-efficiency mic rig, and if they knew enough to show up here with one of those, we were dead anyway. + +"You too, brother," I said. "I'm -- I'm sorry, you know?" + +"Shut up. Don't be sorry. You were braver than I am. Are you ready to go underground now? Ready to disappear?" + +"About that." + +"Yes?" + +"That's not the plan." + +"Oh," he said. + +"Listen, OK? I have -- I have pictures, video. Stuff that really /{proves}/ something." I reached into my pocket and tickled Masha's phone. I'd bought a charger for it in Union Square on the way down, and had stopped and plugged it in at a cafe for long enough to get the battery up to four out of five bars. "I need to get it to Barbara Stratford, the woman from the /{Guardian}/. But they're going to be watching her -- watching to see if I show up." + +"You don't think that they'll be watching for me, too? If your plan involves me going within a mile of that woman's home or office --" + +"I want you to get Van to come and meet me. Did Darryl ever tell you about Van? The girl --" + +"He told me. Yes, he told me. You don't think they'll be watching her? All of you who were arrested?" + +"I think they will. I don't think they'll be watching her as hard. And Van has totally clean hands. She never cooperated with any of my --" I swallowed. "With my projects. So they might be a little more relaxed about her. If she calls the Bay Guardian to make an appointment to explain why I'm just full of crap, maybe they'll let her keep it." + +He stared at the door for a long time. + +"You know what happens when they catch us again." It wasn't a question. + +I nodded. + +"Are you sure? Some of the people that were on Treasure Island with us got taken away in helicopters. They got taken /{offshore}/. There are countries where America can outsource its torture. Countries where you will rot forever. Countries where you wish they would just get it over with, have you dig a trench and then shoot you in the back of the head as you stand over it." + +I swallowed and nodded. + +"Is it worth the risk? We can go underground for a long, long time here. Someday we might get our country back. We can wait it out." + +I shook my head. "You can't get anything done by doing nothing. It's our /{country}/. They've taken it from us. The terrorists who attack us are still free -- but /{we're not}/. I can't go underground for a year, ten years, my whole life, waiting for freedom to be handed to me. Freedom is something you have to take for yourself." + +# + +That afternoon, Van left school as usual, sitting in the back of the bus with a tight knot of her friends, laughing and joking the way she always did. The other riders on the bus took special note of her, she was so loud, and besides, she was wearing that stupid, giant floppy hat, something that looked like a piece out of a school play about Renaissance sword fighters. At one point they all huddled together, then turned away to look out the back of the bus, pointing and giggling. The girl who wore the hat now was the same height as Van, and from behind, it could be her. + +No one paid any attention to the mousy little Asian girl who got off a few stops before the BART. She was dressed in a plain old school uniform, and looking down shyly as she stepped off. Besides, at that moment, the loud Korean girl let out a whoop and her friends followed along, laughing so loudly that even the bus driver slowed down, twisted in his seat and gave them a dirty look. + +Van hurried away down the street with her head down, her hair tied back and dropped down the collar of her out-of-style bubble jacket. She had slipped lifts into her shoes that made her two wobbly, awkward inches taller, and had taken her contacts out and put on her least-favored glasses, with huge lenses that took up half her face. Although I'd been waiting in the bus-shelter for her and knew when to expect her, I hardly recognized her. I got up and walked along behind her, across the street, trailing by half a block. + +The people who passed me looked away as quickly as possible. I looked like a homeless kid, with a grubby cardboard sign, street-grimy overcoat, huge, overstuffed knapsack with duct-tape over its rips. No one wants to look at a street-kid, because if you meet his eye, he might ask you for some spare change. I'd walked around Oakland all afternoon and the only person who'd spoken to me was a Jehovah's Witness and a Scientologist, both trying to convert me. It felt gross, like being hit on by a pervert. + +Van followed the directions I'd written down carefully. Zeb had passed them to her the same way he'd given me the note outside school -- bumping into her as she waited for the bus, apologizing profusely. I'd written the note plainly and simply, just laying it out for her: I know you don't approve. I understand. But this is it, this is the most important favor I've ever asked of you. Please. Please. + +She'd come. I knew she would. We had a lot of history, Van and I. She didn't like what had happened to the world, either. Besides, an evil, chuckling voice in my head had pointed out, she was under suspicion now that Barbara's article was out. + +We walked like that for six or seven blocks, looking at who was near us, what cars went past. Zeb told me about five-person trails, where five different undercovers traded off duties following you, making it nearly impossible to spot them. You had to go somewhere totally desolate, where anyone at all would stand out like a sore thumb. + +The overpass for the 880 was just a few blocks from the Coliseum BART station, and even with all the circling Van did, it didn't take long to reach it. The noise from overhead was nearly deafening. No one else was around, not that I could tell. I'd visited the site before I suggested it to Van in the note, taking care to check for places where someone could hide. There weren't any. + +Once she stopped at the appointed place, I moved quickly to catch up to her. She blinked owlishly at me from behind her glasses. + +"Marcus," she breathed, and tears swam in her eyes. I found that I was crying too. I'd make a really rotten fugitive. Too sentimental. + +She hugged me so hard I couldn't breathe. I hugged her back even harder. + +Then she kissed me. + +Not on the cheek, not like a sister. Full on the lips, a hot, wet, steamy kiss that seemed to go on forever. I was so overcome with emotion -- + +No, that's bull. I knew exactly what I was doing. I kissed her back. + +Then I stopped and pulled away, nearly shoved her away. "Van," I gasped. + +"Oops," she said. + +"Van," I said again. + +"Sorry," she said. "I --" + +Something occurred to me just then, something I guess I should have seen a long, long time before. + +"You /{like}/ me, don't you?" + +She nodded miserably. "For years," she said. + +Oh, God. Darryl, all these years, so in love with her, and the whole time she was looking at me, secretly wanting me. And then I ended up with Ange. Ange said that she'd always fought with Van. And I was running around, getting into so much trouble. + +"Van," I said. "Van, I'm so sorry." + +"Forget it," she said, looking away. "I know it can't be. I just wanted to do that once, just in case I never --" She bit down on the words. + +"Van, I need you to do something for me. Something important. I need you to meet with the journalist from the Bay Guardian, Barbara Stratford, the one who wrote the article. I need you to give her something." I explained about Masha's phone, told her about the video that Masha had sent me. + +"What good will this do, Marcus? What's the point?" + +"Van, you were right, at least partly. We can't fix the world by putting other people at risk. I need to solve the problem by telling what I know. I should have done that from the start. Should have walked straight out of their custody and to Darryl's father's house and told him what I knew. Now, though, I have evidence. This stuff -- it could change the world. This is my last hope. The only hope for getting Darryl out, for getting a life that I don't spend underground, hiding from the cops. And you're the only person I can trust to do this." + +"Why me?" + +"You're kidding, right? Look at how well you handled getting here. You're a pro. You're the best at this of any of us. You're the only one I can trust. That's why you." + +"Why not your friend Angie?" She said the name without any inflection at all, like it was a block of cement. + +I looked down. "I thought you knew. They arrested her. She's in Gitmo -- on Treasure Island. She's been there for days now." I had been trying not to think about this, not to think about what might be happening to her. Now I couldn't stop myself and I started to sob. I felt a pain in my stomach, like I'd been kicked, and I pushed my hands into my middle to hold myself in. I folded there, and the next thing I knew, I was on my side in the rubble under the freeway, holding myself and crying. + +Van knelt down by my side. "Give me the phone," she said, her voice an angry hiss. I fished it out of my pocket and passed it to her. + +Embarrassed, I stopped crying and sat up. I knew that snot was running down my face. Van was giving me a look of pure revulsion. "You need to keep it from going to sleep," I said. "I have a charger here." I rummaged in my pack. I hadn't slept all the way through the night since I acquired it. I set the phone's alarm to go off every 90 minutes and wake me up so that I could keep it from going to sleep. "Don't fold it shut, either." + +"And the video?" + +"That's harder," I said. "I emailed a copy to myself, but I can't get onto the Xnet anymore." In a pinch, I could have gone back to Nate and Liam and used their Xbox again, but I didn't want to risk it. "Look, I'm going to give you my login and password for the Pirate Party's mail-server. You'll have to use Tor to access it -- Homeland Security is bound to be scanning for people logging into p-party mail." + +"Your login and password," she said, looking a little surprised. + +"I trust you, Van. I know I can trust you." + +She shook her head. "You /{never}/ give out your passwords, Marcus." + +"I don't think it matters anymore. Either you succeed or I -- or it's the end of Marcus Yallow. Maybe I'll get a new identity, but I don't think so. I think they'll catch me. I guess I've known all along that they'd catch me, some day." + +She looked at me, furious now. "What a waste. What was it all for, anyway?" + +Of all the things she could have said, nothing could have hurt me more. It was like another kick in the stomach. What a waste, all of it, futile. Darryl and Ange, gone. I might never see my family again. And still, Homeland Security had my city and my country caught in a massive, irrational shrieking freak-out where anything could be done in the name of stopping terrorism. + +Van looked like she was waiting for me to say something, but I had nothing to say to that. She left me there. + +# + +Zeb had a pizza for me when I got back "home" -- to the tent under a freeway overpass in the Mission that he'd staked out for the night. He had a pup tent, military surplus, stenciled with SAN FRANCISCO LOCAL HOMELESS COORDINATING BOARD. + +The pizza was a Dominos, cold and clabbered, but delicious for all that. "You like pineapple on your pizza?" + +Zeb smiled condescendingly at me. "Freegans can't be choosy," he said. + +"Freegans?" + +"Like vegans, but we only eat free food." + +"Free food?" + +He grinned again. "You know -- /{free}/ food. From the free food store?" + +"You stole this?" + +"No, dummy. It's from the other store. The little one out behind the store? Made of blue steel? Kind of funky smelling?" + +"You got this out of the garbage?" + +He flung his head back and cackled. "Yes indeedy. You should /{see}/ your face. Dude, it's OK. It's not like it was rotten. It was fresh -- just a screwed up order. They threw it out in the box. They sprinkle rat poison over everything at closing-time, but if you get there quick, you're OK. You should see what grocery stores throw out! Wait until breakfast. I'm going to make you a fruit salad you won't believe. As soon as one strawberry in the box goes a little green and fuzzy, the whole thing is out --" + +I tuned him out. The pizza was fine. It wasn't as if sitting in the dumpster would infect it or something. If it was gross, that was only because it came from Domino's -- the worst pizza in town. I'd never liked their food, and I'd given it up altogether when I found out that they bankrolled a bunch of ultra-crazy politicians who thought that global warming and evolution were satanic plots. + +It was hard to shake the feeling of grossness, though. + +But there /{was}/ another way to look at it. Zeb had showed me a secret, something I hadn't anticipated: there was a whole hidden world out there, a way of getting by without participating in the system. + +"Freegans, huh?" + +"Yogurt, too," he said, nodding vigorously. "For the fruit salad. They throw it out the day after the best-before date, but it's not as if it goes green at midnight. It's yogurt, I mean, it's basically just rotten milk to begin with." + +I swallowed. The pizza tasted funny. Rat poison. Spoiled yogurt. Furry strawberries. This would take some getting used to. + +I ate another bite. Actually, Domino's pizza sucked a little less when you got it for free. + +Liam's sleeping bag was warm and welcoming after a long, emotionally exhausting day. Van would have made contact with Barbara by now. She'd have the video and the picture. I'd call her in the morning and find out what she thought I should do next. I'd have to come in once she published, to back it all up. + +I thought about that as I closed my eyes, thought about what it would be like to turn myself in, the cameras all rolling, following the infamous M1k3y into one of those big, columnated buildings in Civic Center. + +The sound of the cars screaming by overhead turned into a kind of ocean sound as I drifted away. There were other tents nearby, homeless people. I'd met a few of them that afternoon, before it got dark and we all retreated to huddle near our own tents. They were all older than me, rough looking and gruff. None of them looked crazy or violent, though. Just like people who'd had bad luck, or made bad decisions, or both. + +I must have fallen asleep, because I don't remember anything else until a bright light was shined into my face, so bright it was blinding. + +"That's him," said a voice behind the light. + +"Bag him," said another voice, one I'd heard before, one I'd heard over and over again in my dreams, lecturing to me, demanding my passwords. Severe-haircut-woman. + +The bag went over my head quickly and was cinched so tight at the throat that I choked and threw up my freegan pizza. As I spasmed and choked, hard hands bound my wrists, then my ankles. I was rolled onto a stretcher and hoisted, then carried into a vehicle, up a couple of clanging metal steps. They dropped me into a padded floor. There was no sound at all in the back of the vehicle once they closed the doors. The padding deadened everything except my own choking. + +"Well, hello again," she said. I felt the van rock as she crawled in with me. I was still choking, trying to gasp in a breath. Vomit filled my mouth and trickled down my windpipe. + +"We won't let you die," she said. "If you stop breathing, we'll make sure you start again. So don't worry about it." + +I choked harder. I sipped at air. Some was getting through. Deep, wracking coughs shook my chest and back, dislodging some more of the puke. More breath. + +"See?" she said. "Not so bad. Welcome home, M1k3y. We've got somewhere very special to take you." + +I relaxed onto my back, feeling the van rock. The smell of used pizza was overwhelming at first, but as with all strong stimuli, my brain gradually grew accustomed to it, filtered it out until it was just a faint aroma. The rocking of the van was almost comforting. + +That's when it happened. An incredible, deep calm that swept over me like I was lying on the beach and the ocean had swept in and lifted me as gently as a parent, held me aloft and swept me out onto a warm sea under a warm sun. After everything that had happened, I was caught, but it didn't matter. I had gotten the information to Barbara. I had organized the Xnet. I had won. And if I hadn't won, I had done everything I could have done. More than I ever thought I could do. I took a mental inventory as I rode, thinking of everything that I had accomplished, that /{we}/ had accomplished. The city, the country, the world was full of people who wouldn't live the way DHS wanted us to live. We'd fight forever. They couldn't jail us all. + +I sighed and smiled. + +She'd been talking all along, I realized. I'd been so far into my happy place that she'd just gone away. + +"-- smart kid like you. You'd think that you'd know better than to mess with us. We've had an eye on you since the day you walked out. We would have caught you even if you hadn't gone crying to your lesbo journalist traitor. I just don't get it -- we had an understanding, you and me..." + +We rumbled over a metal plate, the van's shocks rocking, and then the rocking changed. We were on water. Heading to Treasure Island. Hey, Ange was there. Darryl, too. Maybe. + +# + +The hood didn't come off until I was in my cell. They didn't bother with the cuffs at my wrists and ankles, just rolled me off the stretcher and onto the floor. It was dark, but by the moonlight from the single, tiny, high window, I could see that the mattress had been taken off the cot. The room contained me, a toilet, a bed-frame, and a sink, and nothing else. + +I closed my eyes and let the ocean lift me. I floated away. Somewhere, far below me, was my body. I could tell what would happen next. I was being left to piss myself. Again. I knew what that was like. I'd pissed myself before. It smelled bad. It itched. It was humiliating, like being a baby. + +But I'd survived it. + +I laughed. The sound was weird, and it drew me back into my body, back to the present. I laughed and laughed. I'd had the worst that they could throw at me, and I'd survived it, and I'd /{beaten them}/, beaten them for months, showed them up as chumps and despots. I'd /{won}/. + +I let my bladder cut loose. It was sore and full anyway, and no time like the present. + +The ocean swept me away. + +# + +When morning came, two efficient, impersonal guards cut the bindings off of my wrists and ankles. I still couldn't walk -- when I stood, my legs gave way like a stringless marionette's. Too much time in one position. The guards pulled my arms over their shoulders and half-dragged/half-carried me down the familiar corridor. The bar codes on the doors were curling up and dangling now, attacked by the salt air. + +I got an idea. "Ange!" I yelled. "Darryl!" I yelled. My guards yanked me along faster, clearly disturbed but not sure what to do about it. "Guys, it's me, Marcus! Stay free!" + +Behind one of the doors, someone sobbed. Someone else cried out in what sounded like Arabic. Then it was cacophony, a thousand different shouting voices. + +They brought me to a new room. It was an old shower-room, with the shower-heads still present in the mould tiles. + +"Hello, M1k3y," Severe Haircut said. "You seem to have had an eventful morning." She wrinkled her nose pointedly. + +"I pissed myself," I said, cheerfully. "You should try it." + +"Maybe we should give you a bath, then," she said. She nodded, and my guards carried me to another stretcher. This one had restraining straps running its length. They dropped me onto it and it was ice-cold and soaked through. Before I knew it, they had the straps across my shoulders, hips and ankles. A minute later, three more straps were tied down. A man's hands grabbed the railings by my head and released some catches, and a moment later I was tilted down, my head below my feet. + +"Let's start with something simple," she said. I craned my head to see her. She had turned to a desk with an Xbox on it, connected to an expensive-looking flat-panel TV. "I'd like you to tell me your login and password for your Pirate Party email, please?" + +I closed my eyes and let the ocean carry me off the beach. + +"Do you know what waterboarding is, M1k3y?" Her voice reeled me in. "You get strapped down like this, and we pour water over your head, up your nose and down your mouth. You can't suppress the gag reflex. They call it a simulated execution, and from what I can tell from this side of the room, that's a fair assessment. You won't be able to fight the feeling that you're dying." + +I tried to go away. I'd heard of waterboarding. This was it, real torture. And this was just the beginning. + +I couldn't go away. The ocean didn't sweep in and lift me. There was a tightness in my chest, my eyelids fluttered. I could feel clammy piss on my legs and clammy sweat in my hair. My skin itched from the dried puke. + +She swam into view above me. "Let's start with the login," she said. + +I closed my eyes, squeezed them shut. + +"Give him a drink," she said. + +I heard people moving. I took a deep breath and held it. + +The water started as a trickle, a ladleful of water gently poured over my chin, my lips. Up my upturned nostrils. It went back into my throat, starting to choke me, but I wouldn't cough, wouldn't gasp and suck it into my lungs. I held onto my breath and squeezed my eyes harder. + +There was a commotion from outside the room, a sound of chaotic boots stamping, angry, outraged shouts. The dipper was emptied into my face. + +I heard her mutter something to someone in the room, then to me she said, "Just the login, Marcus. It's a simple request. What could I do with your login, anyway?" + +This time, it was a bucket of water, all at once, a flood that didn't stop, it must have been gigantic. I couldn't help it. I gasped and aspirated the water into my lungs, coughed and took more water in. I knew they wouldn't kill me, but I couldn't convince my body of that. In every fiber of my being, I knew I was going to die. I couldn't even cry -- the water was still pouring over me. + +Then it stopped. I coughed and coughed and coughed, but at the angle I was at, the water I coughed up dribbled back into my nose and burned down my sinuses. + +The coughs were so deep they hurt, hurt my ribs and my hips as I twisted against them. I hated how my body was betraying me, how my mind couldn't control my body, but there was nothing for it. + +Finally, the coughing subsided enough for me to take in what was going on around me. People were shouting and it sounded like someone was scuffling, wrestling. I opened my eyes and blinked into the bright light, then craned my neck, still coughing a little. + +The room had a lot more people in it than it had had when we started. Most of them seemed to be wearing body armor, helmets, and smoked-plastic visors. They were shouting at the Treasure Island guards, who were shouting back, necks corded with veins. + +"Stand down!" one of the body-armors said. "Stand down and put your hands in the air. You are under arrest!" + +Severe haircut woman was talking on her phone. One of the body armors noticed her and he moved swiftly to her and batted her phone away with a gloved hand. Everyone fell silent as it sailed through the air in an arc that spanned the small room, clattering to the ground in a shower of parts. + +The silence broke and the body-armors moved into the room. Two grabbed each of my torturers. I almost managed a smile at the look on Severe Haircut's face when two men grabbed her by the shoulders, turned her around, and yanked a set of plastic handcuffs around her wrists. + +One of the body-armors moved forward from the doorway. He had a video camera on his shoulder, a serious rig with blinding white light. He got the whole room, circling me twice while he got me. I found myself staying perfectly still, as though I was sitting for a portrait. + +It was ridiculous. + +"Do you think you could get me off of this thing?" I managed to get it all out with only a little choking. + +Two more body armors moved up to me, one a woman, and began to unstrap me. They flipped their visors up and smiled at me. They had red crosses on their shoulders and helmets. + +Beneath the red crosses was another insignia: CHP. California Highway Patrol. They were State Troopers. + +I started to ask what they were doing there, and that's when I saw Barbara Stratford. She'd evidently been held back in the corridor, but now she came in pushing and shoving. "There you are," she said, kneeling beside me and grabbing me in the longest, hardest hug of my life. + +That's when I knew it -- Guantanamo by the Bay was in the hands of its enemies. I was saved. + +1~ Chapter 21 + +_1 /{ [This chapter is dedicated to Pages Books in Toronto, Canada.~{ Pages Books http://pagesbooks.ca/ 256 Queen St W, Toronto, ON M5V 1Z8 Canada +1 416 598 1447 }~ Long a fixture on the bleedingly trendy Queen Street West strip, Pages is located over the road from CityTV and just a few doors down from the old Bakka store where I worked. We at Bakka loved having Pages down the street from us: what we were to science fiction, they were to everything else: hand-picked material representing the stuff you'd never find elsewhere, the stuff you didn't know you were looking for until you saw it there. Pages also has one of the best news-stands I've ever seen, row on row of incredible magazines and zines from all over the world.] }/ + +They left me and Barbara alone in the room then, and I used the working shower head to rinse off -- I was suddenly embarrassed to be covered in piss and barf. When I finished, Barbara was in tears. + +"Your parents --" she began. + +I felt like I might throw up again. God, my poor folks. What they must have gone through. + +"Are they here?" + +"No," she said. "It's complicated," she said. + +"What?" + +"You're still under arrest, Marcus. Everyone here is. They can't just sweep in and throw open the doors. Everyone here is going to have to be processed through the criminal justice system. It could take, well, it could take months." + +"I'm going to have to stay here for /{months}/?" + +She grabbed my hands. "No, I think we're going to be able to get you arraigned and released on bail pretty fast. But pretty fast is a relative term. I wouldn't expect anything to happen today. And it's not going to be like those people had it. It will be humane. There will be real food. No interrogations. Visits from your family. + +"Just because the DHS is out, it doesn't mean that you get to just walk out of here. What's happened here is that we're getting rid of the bizarro-world version of the justice system they'd instituted and replacing it with the old system. The system with judges, open trials and lawyers. + +"So we can try to get you transferred to a juvie facility on the mainland, but Marcus, those places can be really rough. Really, really rough. This might be the best place for you until we get you bailed out." + +Bailed out. Of course. I was a criminal -- I hadn't been charged yet, but there were bound to be plenty of charges they could think of. It was practically illegal just to think impure thoughts about the government. + +She gave my hands another squeeze. "It sucks, but this is how it has to be. The point is, it's /{over}/. The Governor has thrown the DHS out of the State, dismantled every checkpoint. The Attorney General has issued warrants for any law-enforcement officers involved in 'stress interrogations' and secret imprisonments. They'll go to jail, Marcus, and it's because of what you did." + +I was numb. I heard the words, but they hardly made sense. Somehow, it was over, but it wasn't over. + +"Look," she said. "We probably have an hour or two before this all settles down, before they come back and put you away again. What do you want to do? Walk on the beach? Get a meal? These people had an incredible staff room -- we raided it on the way in. Gourmet all the way." + +At last a question I could answer. "I want to find Ange. I want to find Darryl." + +# + +I tried to use a computer I found to look up their cell-numbers, but it wanted a password, so we were reduced to walking the corridors, calling out their names. Behind the cell-doors, prisoners screamed back at us, or cried, or begged us to let them go. They didn't understand what had just happened, couldn't see their former guards being herded onto the docks in plastic handcuffs, taken away by California state SWAT teams. + +"Ange!" I called over the din, "Ange Carvelli! Darryl Glover! It's Marcus!" + +We'd walked the whole length of the cell-block and they hadn't answered. I felt like crying. They'd been shipped overseas -- they were in Syria or worse. I'd never see them again. + +I sat down and leaned against the corridor wall and put my face in my hands. I saw Severe Haircut Woman's face, saw her smirk as she asked me for my login. She had done this. She would go to jail for it, but that wasn't enough. I thought that when I saw her again, I might kill her. She deserved it. + +"Come on," Barbara said, "Come on, Marcus. Don't give up. There's more around here, come on." + +She was right. All the doors we'd passed in the cellblock were old, rusting things that dated back to when the base was first built. But at the very end of the corridor, sagging open, was a new high-security door as thick as a dictionary. We pulled it open and ventured into the dark corridor within. + +There were four more cell-doors here, doors without bar codes. Each had a small electronic keypad mounted on it. + +"Darryl?" I said. "Ange?" + +"Marcus?" + +It was Ange, calling out from behind the furthest door. Ange, my Ange, my angel. + +"Ange!" I cried. "It's me, it's me!" + +"Oh God, Marcus," she choked out, and then it was all sobs. + +I pounded on the other doors. "Darryl! Darryl, are you here?" + +"I'm here." The voice was very small, and very hoarse. "I'm here. I'm very, very sorry. Please. I'm very sorry." + +He sounded... broken. Shattered. + +"It's me, D," I said, leaning on his door. "It's Marcus. It's over -- they arrested the guards. They kicked the Department of Homeland Security out. We're getting trials, open trials. And we get to testify against /{them}/." + +"I'm sorry," he said. "Please, I'm so sorry." + +The California patrolmen came to the door then. They still had their camera rolling. "Ms Stratford?" one said. He had his faceplate up and he looked like any other cop, not like my savior. Like someone come to lock me up. + +"Captain Sanchez," she said. "We've located two of the prisoners of interest here. I'd like to see them released and inspect them for myself." + +"Ma'am, we don't have access codes for those doors yet," he said. + +She held up her hand. "That wasn't the arrangement. I was to have complete access to this facility. That came direct from the Governor, sir. We aren't budging until you open these cells." Her face was perfectly smooth, without a single hint of give or flex. She meant it. + +The Captain looked like he needed sleep. He grimaced. "I'll see what I can do," he said. + +# + +They did manage to open the cells, finally, about half an hour later. It took three tries, but they eventually got the right codes entered, matching them to the arphids on the ID badges they'd taken off the guards they'd arrested. + +They got into Ange's cell first. She was dressed in a hospital gown, open at the back, and her cell was even more bare than mine had been -- just padding all over, no sink or bed, no light. She emerged blinking into the corridor and the police camera was on her, its bright lights in her face. Barbara stepped protectively between us and it. Ange stepped tentatively out of her cell, shuffling a little. There was something wrong with her eyes, with her face. She was crying, but that wasn't it. + +"They drugged me," she said. "When I wouldn't stop screaming for a lawyer." + +That's when I hugged her. She sagged against me, but she squeezed back, too. She smelled stale and sweaty, and I smelled no better. I never wanted to let go. + +That's when they opened Darryl's cell. + +He had shredded his paper hospital gown. He was curled up, naked, in the back of the cell, shielding himself from the camera and our stares. I ran to him. + +"D," I whispered in his ear. "D, it's me. It's Marcus. It's over. The guards have been arrested. We're going to get bail, we're going home." + +He trembled and squeezed his eyes shut. "I'm sorry," he whispered, and turned his face away. + +They took me away then, a cop in body-armor and Barbara, took me back to my cell and locked the door, and that's where I spent the night. + +# + +I don't remember much about the trip to the courthouse. They had me chained to five other prisoners, all of whom had been in for a lot longer than me. One only spoke Arabic -- he was an old man, and he trembled. The others were all young. I was the only white one. Once we had been gathered on the deck of the ferry, I saw that nearly everyone on Treasure Island had been one shade of brown or another. + +I had only been inside for one night, but it was too long. There was a light drizzle coming down, normally the sort of thing that would make me hunch my shoulders and look down, but today I joined everyone else in craning my head back at the infinite gray sky, reveling in the stinging wet as we raced across the bay to the ferry-docks. + +They took us away in buses. The shackles made climbing into the buses awkward, and it took a long time for everyone to load. No one cared. When we weren't struggling to solve the geometry problem of six people, one chain, narrow bus-aisle, we were just looking around at the city around us, up the hill at the buildings. + +All I could think of was finding Darryl and Ange, but neither were in evidence. It was a big crowd and we weren't allowed to move freely through it. The state troopers who handled us were gentle enough, but they were still big, armored and armed. I kept thinking I saw Darryl in the crowd, but it was always someone else with that same beaten, hunched look that he'd had in his cell. He wasn't the only broken one. + +At the courthouse, they marched us into interview rooms in our shackle group. An ACLU lawyer took our information and asked us a few questions -- when she got to me, she smiled and greeted me by name -- and then led us into the courtroom before the judge. He wore an actual robe, and seemed to be in a good mood. + +The deal seemed to be that anyone who had a family member to post bail could go free, and everyone else got sent to prison. The ACLU lawyer did a lot of talking to the judge, asking for a few more hours while the prisoners' families were rounded up and brought to the court-house. The judge was pretty good about it, but when I realized that some of these people had been locked up since the bridge blew, taken for dead by their families, without trial, subjected to interrogation, isolation, torture -- I wanted to just break the chains myself and set everyone free. + +When I was brought before the judge, he looked down at me and took off his glasses. He looked tired. The ACLU lawyer looked tired. The bailiffs looked tired. Behind me, I could hear a sudden buzz of conversation as my name was called by the bailiff. The judge rapped his gavel once, without looking away from me. He scrubbed at his eyes. + +"Mr Yallow," he said, "the prosecution has identified you as a flight risk. I think they have a point. You certainly have more, shall we say, /{history}/, than the other people here. I am tempted to hold you over for trial, no matter how much bail your parents are prepared to post." + +My lawyer started to say something, but the judge silenced her with a look. He scrubbed at his eyes. + +"Do you have anything to say?" + +"I had the chance to run," I said. "Last week. Someone offered to take me away, get me out of town, help me build a new identity. Instead I stole her phone, escaped from our truck, and ran away. I turned over her phone -- which had evidence about my friend, Darryl Glover, on it -- to a journalist and hid out here, in town." + +"You stole a phone?" + +"I decided that I couldn't run. That I had to face justice -- that my freedom wasn't worth anything if I was a wanted man, or if the city was still under the DHS. If my friends were still locked up. That freedom for me wasn't as important as a free country." + +"But you did steal a phone." + +I nodded. "I did. I plan on giving it back, if I ever find the young woman in question." + +"Well, thank you for that speech, Mr Yallow. You are a very well spoken young man." He glared at the prosecutor. "Some would say a very brave man, too. There was a certain video on the news this morning. It suggested that you had some legitimate reason to evade the authorities. In light of that, and of your little speech here, I will grant bail, but I will also ask the prosecutor to add a charge of Misdemeanor Petty Theft to the count, as regards the matter of the phone. For this, I expect another $50,000 in bail." + +He banged his gavel again, and my lawyer gave my hand a squeeze. + +He looked down at me again and re-seated his glasses. He had dandruff, there on the shoulders of his robe. A little more rained down as his glasses touched his wiry, curly hair. + +"You can go now, young man. Stay out of trouble." + +# + +I turned to go and someone tackled me. It was Dad. He literally lifted me off my feet, hugging me so hard my ribs creaked. He hugged me the way I remembered him hugging me when I was a little boy, when he'd spin me around and around in hilarious, vomitous games of airplane that ended with him tossing me in the air and catching me and squeezing me like that, so hard it almost hurt. + +A set of softer hands pried me gently out of his arms. Mom. She held me at arm's length for a moment, searching my face for something, not saying anything, tears streaming down her face. She smiled and it turned into a sob and then she was holding me too, and Dad's arm encircled us both. + +When they let go, I managed to finally say something. "Darryl?" + +"His father met me somewhere else. He's in the hospital." + +"When can I see him?" + +"It's our next stop," Dad said. He was grim. "He doesn't --" He stopped. "They say he'll be OK," he said. His voice was choked. + +"How about Ange?" + +"Her mother took her home. She wanted to wait here for you, but..." + +I understood. I felt full of understanding now, for how all the families of all the people who'd been locked away must feel. The courtroom was full of tears and hugs, and even the bailiffs couldn't stop it. + +"Let's go see Darryl," I said. "And let me borrow your phone?" + +I called Ange on the way to the hospital where they were keeping Darryl -- San Francisco General, just down the street from us -- and arranged to see her after dinner. She talked in a hurried whisper. Her mom wasn't sure whether to punish her or not, but Ange didn't want to tempt fate. + +There were two state troopers in the corridor where Darryl was being held. They were holding off a legion of reporters who stood on tiptoe to see around them and get pictures. The flashes popped in our eyes like strobes, and I shook my head to clear it. My parents had brought me clean clothes and I'd changed in the back seat, but I still felt gross, even after scrubbing myself in the court-house bathrooms. + +Some of the reporters called my name. Oh yeah, that's right, I was famous now. The state troopers gave me a look, too -- either they'd recognized my face or my name when the reporters called it out. + +Darryl's father met us at the door of his hospital room, speaking in a whisper too low for the reporters to hear. He was in civvies, the jeans and sweater I normally thought of him wearing, but he had his service ribbons pinned to his breast. + +"He's sleeping," he said. "He woke up a little while ago and he started crying. He couldn't stop. They gave him something to help him sleep." + +He led us in, and there was Darryl, his hair clean and combed, sleeping with his mouth open. There was white stuff at the corners of his mouth. He had a semi-private room, and in the other bed there was an older Arab-looking guy, in his 40s. I realized it was the guy I'd been chained to on the way off of Treasure Island. We exchanged embarrassed waves. + +Then I turned back to Darryl. I took his hand. His nails had been chewed to the quick. He'd been a nail-biter when he was a kid, but he'd kicked the habit when we got to high school. I think Van talked him out of it, telling him how gross it was for him to have his fingers in his mouth all the time. + +I heard my parents and Darryl's dad take a step away, drawing the curtains around us. I put my face down next to his on the pillow. He had a straggly, patchy beard that reminded me of Zeb. + +"Hey, D," I said. "You made it. You're going to be OK." + +He snored a little. I almost said, "I love you," a phrase I'd only said to one non-family-member ever, a phrase that was weird to say to another guy. In the end, I just gave his hand another squeeze. Poor Darryl. + +1~epilogue Epilogue + +_1 /{ [This chapter is dedicated to Hudson Booksellers,~{ Hudson Booksellers http://www.hudsongroup.com/HudsonBooksellers_s.html }~ the booksellers that are in practically every airport in the USA. Most of the Hudson stands have just a few titles (though those are often surprisingly diverse), but the big ones, like the one in the AA terminal at Chicago's O'Hare, are as good as any neighborhood store. It takes something special to bring a personal touch to an airport, and Hudson's has saved my mind on more than one long Chicago layover.] }/ + +Barbara called me at the office on July 4th weekend. I wasn't the only one who'd come into work on the holiday weekend, but I was the only one whose excuse was that my day-release program wouldn't let me leave town. + +In the end, they convicted me of stealing Masha's phone. Can you believe that? The prosecution had done a deal with my lawyer to drop all charges related to "Electronic terrorism" and "inciting riots" in exchange for my pleading guilty to the misdemeanor petty theft charge. I got three months in a day-release program with a half-way house for juvenile offenders in the Mission. I slept at the halfway house, sharing a dorm with a bunch of actual criminals, gang kids and druggie kids, a couple of real nuts. During the day, I was "free" to go out and work at my "job." + +"Marcus, they're letting her go," she said. + +"Who?" + +"Johnstone, Carrie Johnstone," she said. "The closed military tribunal cleared her of any wrongdoing. The file is sealed. She's being returned to active duty. They're sending her to Iraq." + +Carrie Johnstone was Severe Haircut Woman's name. It came out in the preliminary hearings at the California Superior Court, but that was just about all that came out. She wouldn't say a word about who she took orders from, what she'd done, who had been imprisoned and why. She just sat, perfectly silent, day after day, in the courthouse. + +The Feds, meanwhile, had blustered and shouted about the Governor's "unilateral, illegal" shut-down of the Treasure Island facility, and the Mayor's eviction of fed cops from San Francisco. A lot of those cops had ended up in state prisons, along with the guards from Gitmo-by-the-Bay. + +Then, one day, there was no statement from the White House, nothing from the state capitol. And the next day, there was a dry, tense press-conference held jointly on the steps of the Governor's mansion, where the head of the DHS and the governor announced their "understanding." + +The DHS would hold a closed, military tribunal to investigate "possible errors in judgment" committed after the attack on the Bay Bridge. The tribunal would use every tool at its disposal to ensure that criminal acts were properly punished. In return, control over DHS operations in California would go through the State Senate, which would have the power to shut down, inspect, or re-prioritize all homeland security in the state. + +The roar of the reporters had been deafening and Barbara had gotten the first question in. "Mr Governor, with all due respect: we have incontrovertible video evidence that Marcus Yallow, a citizen of this state, native born, was subjected to a simulated execution by DHS officers, apparently acting on orders from the White House. Is the State really willing to abandon any pretense of justice for its citizens in the face of illegal, barbaric /{torture}/?" Her voice trembled, but didn't crack. + +The Governor spread his hands. "The military tribunals will accomplish justice. If Mr Yallow -- or any other person who has cause to fault the Department of Homeland Security -- wants further justice, he is, of course, entitled to sue for such damages as may be owing to him from the federal government." + +That's what I was doing. Over twenty thousand civil lawsuits were filed against the DHS in the week after the Governor's announcement. Mine was being handled by the ACLU, and they'd filed motions to get at the results of the closed military tribunals. So far, the courts were pretty sympathetic to this. + +But I hadn't expected this. + +"She got off totally Scot-free?" + +"The press release doesn't say much. 'After a thorough examination of the events in San Francisco and in the special anti-terror detention center on Treasure Island, it is the finding of this tribunal that Ms Johnstone's actions do not warrant further discipline.' There's that word, 'further' -- like they've already punished her." + +I snorted. I'd dreamed of Carrie Johnstone nearly every night since I was released from Gitmo-by-the-Bay. I'd seen her face looming over mine, that little snarly smile as she told the man to give me a "drink." + +"Marcus --" Barbara said, but I cut her off. + +"It's fine. It's fine. I'm going to do a video about this. Get it out over the weekend. Mondays are big days for viral video. Everyone'll be coming back from the holiday weekend, looking for something funny to forward around school or the office." + +I saw a shrink twice a week as part of my deal at the halfway house. Once I'd gotten over seeing that as some kind of punishment, it had been good. He'd helped me focus on doing constructive things when I was upset, instead of letting it eat me up. The videos helped. + +"I have to go," I said, swallowing hard to keep the emotion out of my voice. + +"Take care of yourself, Marcus," Barbara said. + +Ange hugged me from behind as I hung up the phone. "I just read about it online," she said. She read a million newsfeeds, pulling them with a headline reader that sucked up stories as fast as they ended up on the wire. She was our official blogger, and she was good at it, snipping out the interesting stories and throwing them online like a short order cook turning around breakfast orders. + +I turned around in her arms so that I was hugging her from in front. Truth be told, we hadn't gotten a lot of work done that day. I wasn't allowed to be out of the halfway house after dinner time, and she couldn't visit me there. We saw each other around the office, but there were usually a lot of other people around, which kind of put a crimp in our cuddling. Being alone in the office for a day was too much temptation. It was hot and sultry, too, which meant we were both in tank-tops and shorts, a lot of skin-to-skin contact as we worked next to each other. + +"I'm going to make a video," I said. "I want to release it today." + +"Good," she said. "Let's do it." + +Ange read the press-release. I did a little monologue, synched over that famous footage of me on the water-board, eyes wild in the harsh light of the camera, tears streaming down my face, hair matted and flecked with barf. + +"This is me. I am on a waterboard. I am being tortured in a simulated execution. The torture is supervised by a woman called Carrie Johnstone. She works for the government. You might remember her from this video." + +I cut in the video of Johnstone and Kurt Rooney. "That's Johnstone and Secretary of State Kurt Rooney, the president's chief strategist." + +/{"The nation does not love that city. As far as they're concerned, it is a Sodom and Gomorrah of fags and atheists who deserve to rot in hell. The only reason the country cares what they think in San Francisco is that they had the good fortune to have been blown to hell by some Islamic terrorists."}/ + +"He's talking about the city where I live. At last count, 4,215 of my neighbors were killed on the day he's talking about. But some of them may not have been killed. Some of them disappeared into the same prison where I was tortured. Some mothers and fathers, children and lovers, brothers and sisters will never see their loved ones again -- because they were secretly imprisoned in an illegal jail right here in the San Francisco Bay. They were shipped overseas. The records were meticulous, but Carrie Johnstone has the encryption keys." I cut back to Carrie Johnstone, the footage of her sitting at the board table with Rooney, laughing. + +I cut in the footage of Johnstone being arrested. "When they arrested her, I thought we'd get justice. All the people she broke and disappeared. But the president --" I cut to a still of him laughing and playing golf on one of his many holidays "-- and his Chief Strategist --" now a still of Rooney shaking hands with an infamous terrorist leader who used to be on "our side" "-- intervened. They sent her to a secret military tribunal and now that tribunal has cleared her. Somehow, they saw nothing wrong with all of this." + +I cut in a photomontage of the hundreds of shots of prisoners in their cells that Barbara had published on the Bay Guardian's site the day we were released. "We elected these people. We pay their salaries. They're supposed to be on our side. They're supposed to defend our freedoms. But these people --" a series of shots of Johnstone and the others who'd been sent to the tribunal "-- betrayed our trust. The election is four months away. That's a lot of time. Enough for you to go out and find five of your neighbors -- five people who've given up on voting because their choice is 'none of the above.' + +"Talk to your neighbors. Make them promise to vote. Make them promise to take the country back from the torturers and thugs. The people who laughed at my friends as they lay fresh in their graves at the bottom of the harbor. Make them promise to talk to their neighbors. + +"Most of us choose none of the above. It's not working. You have to choose -- choose freedom. + +"My name is Marcus Yallow. I was tortured by my country, but I still love it here. I'm seventeen years old. I want to grow up in a free country. I want to live in a free country." + +I faded out to the logo of the website. Ange had built it, with help from Jolu, who got us all the free hosting we could ever need on Pigspleen. + +The office was an interesting place. Technically we were called Coalition of Voters for a Free America, but everyone called us the Xnetters. The organization -- a charitable nonprofit -- had been co-founded by Barbara and some of her lawyer friends right after the liberation of Treasure Island. The funding was kicked off by some tech millionaires who couldn't believe that a bunch of hacker kids had kicked the DHS's ass. Sometimes, they'd ask us to go down the peninsula to Sand Hill Road, where all the venture capitalists were, and give a little presentation on Xnet technology. There were about a zillion startups who were trying to make a buck on the Xnet. + +Whatever -- I didn't have to have anything to do with it, and I got a desk and an office with a storefront, right there on Valencia Street, where we gave away ParanoidXbox CDs and held workshops on building better WiFi antennas. A surprising number of average people dropped in to make personal donations, both of hardware (you can run ParanoidLinux on just about anything, not just Xbox Universals) and cash money. They loved us. + +The big plan was to launch our own ARG in September, just in time for the election, and to really tie it in with signing up voters and getting them to the polls. Only 42 percent of Americans showed up at the polls for the last election -- nonvoters had a huge majority. I kept trying to get Darryl and Van to one of our planning sessions, but they kept on declining. They were spending a lot of time together, and Van insisted that it was totally nonromantic. Darryl wouldn't talk to me much at all, though he sent me long emails about just about everything that wasn't about Van or terrorism or prison. + +Ange squeezed my hand. "God, I hate that woman," she said. + +I nodded. "Just one more rotten thing this country's done to Iraq," I said. "If they sent her to my town, I'd probably become a terrorist." + +"You did become a terrorist when they sent her to your town." + +"So I did," I said. + +"Are you going to Ms Galvez's hearing on Monday?" + +"Totally." I'd introduced Ange to Ms Galvez a couple weeks before, when my old teacher invited me over for dinner. The teacher's union had gotten a hearing for her before the board of the Unified School District to argue for getting her old job back. They said that Fred Benson was coming out of (early) retirement to testify against her. I was looking forward to seeing her again. + +"Do you want to go get a burrito?" + +"Totally." + +"Let me get my hot-sauce," she said. + +I checked my email one more time -- my PirateParty email, which still got a dribble of messages from old Xnetters who hadn't found my Coalition of Voters address yet. + +The latest message was from a throwaway email address from one of the new Brazilian anonymizers. + +> Found her, thanks. You didn't tell me she was so h4wt. + +"Who's /{that}/ from?" + +I laughed. "Zeb," I said. "Remember Zeb? I gave him Masha's email address. I figured, if they're both underground, might as well introduce them to one another." + +"He thinks Masha is /{cute}/?" + +"Give the guy a break, he's clearly had his mind warped by circumstances." + +"And you?" + +"Me?" + +"Yeah -- was your mind warped by circumstances?" + +I held Ange out at arm's length and looked her up and down and up and down. I held her cheeks and stared through her thick-framed glasses into her big, mischievous tilted eyes. I ran my fingers through her hair. + +"Ange, I've never thought more clearly in my whole life." + +She kissed me then, and I kissed her back, and it was some time before we went out for that burrito. + +1~afterword_1 Afterword by Bruce Schneier + +I'm a security technologist. My job is making people secure. + +I think about security systems and how to break them. Then, how to make them more secure. Computer security systems. Surveillance systems. Airplane security systems and voting machines and RFID chips and everything else. + +Cory invited me into the last few pages of his book because he wanted me to tell you that security is fun. It's incredibly fun. It's cat and mouse, who can outsmart whom, hunter versus hunted fun. I think it's the most fun job you can possibly have. If you thought it was fun to read about Marcus outsmarting the gait-recognition cameras with rocks in his shoes, think of how much more fun it would be if you were the first person in the world to think of that. + +Working in security means knowing a lot about technology. It might mean knowing about computers and networks, or cameras and how they work, or the chemistry of bomb detection. But really, security is a mindset. It's a way of thinking. Marcus is a great example of that way of thinking. He's always looking for ways a security system fails. I'll bet he couldn't walk into a store without figuring out a way to shoplift. Not that he'd do it -- there's a difference between knowing how to defeat a security system and actually defeating it -- but he'd know he could. + +It's how security people think. We're constantly looking at security systems and how to get around them; we can't help it. + +This kind of thinking is important no matter what side of security you're on. If you've been hired to build a shoplift-proof store, you'd better know how to shoplift. If you're designing a camera system that detects individual gaits, you'd better plan for people putting rocks in their shoes. Because if you don't, you're not going to design anything good. + +So when you're wandering through your day, take a moment to look at the security systems around you. Look at the cameras in the stores you shop at. (Do they prevent crime, or just move it next door?) See how a restaurant operates. (If you pay after you eat, why don't more people just leave without paying?) Pay attention at airport security. (How could you get a weapon onto an airplane?) Watch what the teller does at a bank. (Bank security is designed to prevent tellers from stealing just as much as it is to prevent you from stealing.) Stare at an anthill. (Insects are all about security.) Read the Constitution, and notice all the ways it provides people with security against government. Look at traffic lights and door locks and all the security systems on television and in the movies. Figure out how they work, what threats they protect against and what threats they don't, how they fail, and how they can be exploited. + +Spend enough time doing this, and you'll find yourself thinking differently about the world. You'll start noticing that many of the security systems out there don't actually do what they claim to, and that much of our national security is a waste of money. You'll understand privacy as essential to security, not in opposition. You'll stop worrying about things other people worry about, and start worrying about things other people don't even think about. + +Sometimes you'll notice something about security that no one has ever thought about before. And maybe you'll figure out a new way to break a security system. + +It was only a few years ago that someone invented phishing. + +I'm frequently amazed how easy it is to break some pretty big-name security systems. There are a lot of reasons for this, but the big one is that it's impossible to prove that something is secure. All you can do is try to break it -- if you fail, you know that it's secure enough to keep /{you}/ out, but what about someone who's smarter than you? Anyone can design a security system so strong he himself can't break it. + +Think about that for a second, because it's not obvious. No one is qualified to analyze their own security designs, because the designer and the analyzer will be the same person, with the same limits. Someone else has to analyze the security, because it has to be secure against things the designers didn't think of. + +This means that all of us have to analyze the security that other people design. And surprisingly often, one of us breaks it. Marcus's exploits aren't far-fetched; that kind of thing happens all the time. Go onto the net and look up "bump key" or "Bic pen Kryptonite lock"; you'll find a couple of really interesting stories about seemingly strong security defeated by pretty basic technology. + +And when that happens, be sure to publish it on the Internet somewhere. Secrecy and security aren't the same, even though it may seem that way. Only bad security relies on secrecy; good security works even if all the details of it are public. + +And publishing vulnerabilities forces security designers to design better security, and makes us all better consumers of security. If you buy a Kryptonite bike lock and it can be defeated with a Bic pen, you're not getting very good security for your money. And, likewise, if a bunch of smart kids can defeat the DHS's antiterrorist technologies, then it's not going to do a very good job against real terrorists. + +Trading privacy for security is stupid enough; not getting any actual security in the bargain is even stupider. + +So close the book and go. The world is full of security systems. Hack one of them. + +Bruce Schneier +http://www.schneier.com + +1~afterword_2 Afterword by Andrew "bunnie" Huang, Xbox Hacker + +Hackers are explorers, digital pioneers. It's in a hacker's nature to question conventions and be tempted by intricate problems. Any complex system is sport for a hacker; a side effect of this is the hacker's natural affinity for problems involving security. Society is a large and complex system, and is certainly not off limits to a little hacking. As a result, hackers are often stereotyped as iconoclasts and social misfits, people who defy social norms for the sake of defiance. When I hacked the Xbox in 2002 while at MIT, I wasn’t doing it to rebel or to cause harm; I was just following a natural impulse, the same impulse that leads to fixing a broken iPod or exploring the roofs and tunnels at MIT.  +  +Unfortunately, the combination of not complying with social norms and knowing “threatening” things like how to read the arphid on your credit card or how to pick locks causes some people to fear hackers. However, the motivations of a hacker are typically as simple as “I’m an engineer because I like to design things.” People often ask me, “Why did you hack the Xbox security system?” And my answer is simple: First, I own the things that I buy. If someone can tell me what I can and can’t run on my hardware, then I don’t own it. Second, because it’s there. It’s a system of sufficient complexity to make good sport. It was a great diversion from the late nights working on my PhD. +  +I was lucky. The fact that I was a graduate student at MIT when I hacked the Xbox legitimized the activity in the eyes of the right people. However, the right to hack shouldn’t only be extended to academics. I got my start on hacking when I was just a boy in elementary school, taking apart every electronic appliance I could get my hands on, much to my parents’ chagrin. My reading collection included books on model rocketry, artillery, nuclear weaponry and explosives manufacture -- books that I borrowed from my school library (I think the Cold War influenced the reading selection in public schools). I also played with my fair share of ad-hoc fireworks and roamed the open construction sites of houses being raised in my Midwestern neighborhood. While not the wisest of things to do, these were important experiences in my coming of age and I grew up to be a free thinker because of the social tolerance and trust of my community. +  +Current events have not been so kind to aspiring hackers. Little Brother shows how we can get from where we are today to a world where social tolerance for new and different thoughts dies altogether. A recent event highlights exactly how close we are to crossing the line into the world of Little Brother. I had the fortune of reading an early draft of Little Brother back in November 2006. Fast forward two months to the end of January 2007, when Boston police found suspected explosive devices and shut down the city for a day. These devices turned out to be nothing more than circuit boards with flashing LEDs, promoting a show for the Cartoon Network. The artists who placed this urban graffiti were taken in as suspected terrorists and ultimately charged with felony; the network producers had to shell out a $2 million settlement, and the head of the Cartoon Network resigned over the fallout.  + +Have the terrorists already won? Have we given in to fear, such that artists, hobbyists, hackers, iconoclasts, or perhaps an unassuming group of kids playing Harajuku Fun Madness, could be so trivially implicated as terrorists? + +There is a term for this dysfunction -- it is called an autoimmune disease, where an organism's defense system goes into overdrive so much that it fails to recognize itself and attacks its own cells. Ultimately, the organism self-destructs. Right now, America is on the verge of going into anaphylactic shock over its own freedoms, and we need to inoculate ourselves against this. Technology is no cure for this paranoia; in fact, it may enhance the paranoia: it turns us into prisoners of our own device. Coercing millions of people to strip off their outer garments and walk barefoot through metal detectors every day is no solution either. It only serves to remind the population every day that they have a reason to be afraid, while in practice providing only a flimsy barrier to a determined adversary. + +The truth is that we can't count on someone else to make us feel free, and M1k3y won’t come and save us the day our freedoms are lost to paranoia. That's because M1k3y is in you and in me--Little Brother is a reminder that no matter how unpredictable the future may be, we don't win freedom through security systems, cryptography, interrogations and spot searches. We win freedom by having the courage and the conviction to live every day freely and to act as a free society, no matter how great the threats are on the horizon. + +Be like M1k3y: step out the door and dare to be free. + +1~bibliogrphy Bibliography + +No writer creates from scratch -- we all engage in what Isaac Newton called "standing on the shoulders of giants." We borrow, plunder and remix the art and culture created by those around us and by our literary forebears. + +If you liked this book and want to learn more, there are plenty of sources to turn to, online and at your local library or bookstore. + +Hacking is a great subject. All science relies on telling other people what you've done so that they can verify it, learn from it, and improve on it, and hacking is all about that process, so there's plenty published on the subject. + +Start with Andrew "Bunnie" Huang's "Hacking the Xbox," (No Starch Press, 2003) a wonderful book that tells the story of how Bunnie, then a student at MIT, reverse-engineered the Xbox's anti-tampering mechanisms and opened the way for all the subsequent cool hacks for the platform. In telling the story, Bunnie has also created a kind of Bible for reverse engineering and hardware hacking. + +Bruce Schneier's "Secrets and Lies" (Wiley, 2000) and "Beyond Fear" (Copernicus, 2003) are the definitive lay-person's texts on understanding security and thinking critically about it, while his "Applied Cryptography" (Wiley, 1995) remains the authoritative source for understanding crypto. Bruce maintains an excellent blog and mailing list at schneier.com/blog. Crypto and security are the realm of the talented amateur, and the "cypherpunk" movement is full of kids, home-makers, parents, lawyers, and every other stripe of person, hammering away on security protocols and ciphers. + +There are several great magazines devoted to this subject, but the two best ones are 2600: The Hacker Quarterly, which is full of pseudonymous, boasting accounts of hacks accomplished, and O'Reilly's MAKE magazine, which features solid HOWTOs for making your own hardware projects at home. + +The online world overflows with material on this subject, of course. Ed Felten and Alex J Halderman's Freedom to Tinker (www.freedom-to-tinker.com) is a blog maintained by two fantastic Princeton engineering profs who write lucidly about security, wiretapping, anti-copying technology and crypto. + +Don't miss Natalie Jeremijenko's "Feral Robotics" at UC San Diego (xdesign.ucsd.edu/feralrobots/). Natalie and her students rewire toy robot dogs from Toys R Us and turn them into bad-ass toxic-waste detectors. They unleash them on public parks where big corporations have dumped their waste and demonstrate in media-friendly fashion how toxic the ground is. + +Like many of the hacks in this book, the tunneling-over-DNS stuff is real. Dan Kaminsky, a tunneling expert of the first water, published details in 2004 (www.doxpara.com/bo2004.ppt). + +The guru of "citizen journalism" is Dan Gillmor, who is presently running Center for Citizen Media at Harvard and UC Berkeley -- he also wrote a hell of a book on the subject, "We, the Media" (O'Reilly, 2004). + +If you want to learn more about hacking arphids, start with Annalee Newitz's Wired Magazine article "The RFID Hacking Underground" (www.wirednews.com/wired/archive/14.05/rfid.html). Adam Greenfield's "Everyware" (New Riders Press, 2006) is a chilling look at the dangers of a world of arphids. + +Neal Gershenfeld's Fab Lab at MIT (fab.cba.mit.edu) is hacking out the world's first real, cheap "3D printers" that can pump out any object you can dream of. This is documented in Gershenfeld's excellent book on the subject, "Fab" (Basic Books, 2005). + +Bruce Sterling's "Shaping Things" (MIT Press, 2005) shows how arphids and fabs could be used to force companies to build products that don't poison the world. + +Speaking of Bruce Sterling, he wrote the first great book on hackers and the law, "The Hacker Crackdown" (Bantam, 1993), which is also the first book published by a major publisher that was released on the Internet at the same time (copies abound; see stuff.mit.edu/hacker/hacker.html for one). It was reading this book that turned me on to the Electronic Frontier Foundation, where I was privileged to work for four years. + +The Electronic Frontier Foundation (www.eff.org) is a charitable membership organization with a student rate. They spend the money that private individuals give them to keep the Internet safe for personal liberty, free speech, due process, and the rest of the Bill of Rights. They're the Internet's most effective freedom fighters, and you can join the struggle just by signing up for their mailing list and writing to your elected officials when they're considering selling you out in the name of fighting terrorism, piracy, the mafia, or whatever bogeyman has caught their attention today. EFF also helps maintain TOR, The Onion Router, which is a real technology you can use /{right now}/ to get out of your government, school or library's censoring firewall (tor.eff.org). + +EFF has a huge, deep website with amazing information aimed at a general audience, as do the American Civil Liberties Union (aclu.org), Public Knowledge (publicknowledge.org), FreeCulture (freeculture.org), Creative Commons (creativecommons.org) -- all of which also are worthy of your support. FreeCulture is an international student movement that actively recruits kids to found their own local chapters at their high schools and universities. It's a great way to get involved and make a difference. + +A lot of websites chronicle the fight for cyberliberties, but few go at it with the verve of Slashdot, "News for Nerds, Stuff That Matters" (slashdot.org). + +And of course, you /{have to}/ visit Wikipedia, the collaborative, net-authored encyclopedia that anyone can edit, with more than 1,000,000 entries in English alone. Wikipedia covers hacking and counterculture in astonishing depth and with amazing, up-to-the-nanosecond currency. One caution: you can't just look at the entries in Wikipedia. It's really important to look at the "History" and "Discussion" links at the top of every Wikipedia page to see how the current version of the truth was arrived at, get an appreciation for the competing points-of-view there, and decide for yourself whom you trust. + +If you want to get at some /{real}/ forbidden knowledge, have a skim around Cryptome (cryptome.org), the world's most amazing archive of secret, suppressed and liberated information. Cryptome's brave publishers collect material that's been pried out of the state by Freedom of Information Act requests or leaked by whistle-blowers and publishes it. + +The best fictional account of the history of crypto is, hands-down, Neal Stephenson's Cryptonomicon (Avon, 2002). Stephenson tells the story of Alan Turing and the Nazi Enigma Machine, turning it into a gripping war-novel that you won't be able to put down. + +The Pirate Party mentioned in Little Brother is real and thriving in Sweden (www.piratpartiet.se), Denmark, the USA and France at the time of this writing (July, 2006). They're a little out-there, but a movement takes all kinds. + +Speaking of out-there, Abbie Hoffman and the Yippies did indeed try to levitate the Pentagon, throw money into the stock exchange, and work with a group called the Up Against the Wall Motherf_____ers. Abbie Hoffman's classic book on ripping off the system, "Steal This Book," is back in print (Four Walls Eight Windows, 2002) and it's also online as a collaborative wiki for people who want to try to update it (stealthiswiki.nine9pages.com). + +Hoffman's autobiography, "Soon to Be a Major Motion Picture" (also in print from Four Walls Eight Windows) is one of my favorite memoirs ever, even if it is highly fictionalized. Hoffman was an incredible storyteller and had great activist instincts. If you want to know how he really lived his life, though, try Larry Sloman's "Steal This Dream" (Doubleday, 1998). + +More counterculture fun: Jack Kerouac's "On the Road" can be had in practically any used bookstore for a buck or two. Allan Ginsberg's "HOWL" is online in many places, and you can hear him read it if you search for the MP3 at archive.org. For bonus points, track down the album "Tenderness Junction" by the Fugs, which includes the audio of Allan Ginsberg and Abbie Hoffman's levitation ceremony at the Pentagon. + +This book couldn't have been written if not for George Orwell's magnificent, world-changing "1984," the best novel ever published on how societies go wrong. I read this book when I was 12 and have read it 30 or 40 times since, and every time, I get something new out of it. Orwell was a master of storytelling and was clearly sick over the totalitarian state that emerged in the Soviet Union. 1984 holds up today as a genuinely frightening work of science fiction, and it is one of the novels that literally changed the world. Today, "Orwellian" is synonymous with a state of ubiquitous surveillance, doublethink, and torture. + +Many novelists have tackled parts of the story in Little Brother. Daniel Pinkwater's towering comic masterpiece, "Alan Mendelsohn: The Boy From Mars" (presently in print as part of the omnibus "5 Novels," Farrar, Straus and Giroux, 1997) is a book that every geek needs to read. If you've ever felt like an outcast for being too smart or weird, READ THIS BOOK. It changed my life. + +On a more contemporary front, there's Scott Westerfeld's "So Yesterday" (Razorbill, 2004), which follows the adventures of cool hunters and counterculture jammers. Scott and his wife Justine Larbalestier were my partial inspiration to write a book for young adults -- as was Kathe Koja. Thanks, guys. + +1~acknowledgements Acknowledgments + +This book owes a tremendous debt to many writers, friends, mentors, and heroes who made it possible. + +For the hackers and cypherpunks: Bunnie Huang, Seth Schoen, Ed Felten, Alex Halderman, Gweeds, Natalie Jeremijenko, Emmanuel Goldstein, Aaron Swartz + +For the heroes: Mitch Kapor, John Gilmore, John Perry Barlow, Larry Lessig, Shari Steele, Cindy Cohn, Fred von Lohmann, Jamie Boyle, George Orwell, Abbie Hoffman, Joe Trippi, Bruce Schneier, Ross Dowson, Harry Kopyto, Tim O'Reilly + +For the writers: Bruce Sterling, Kathe Koja, Scott Westerfeld, Justine Larbalestier, Pat York, Annalee Newitz, Dan Gillmor, Daniel Pinkwater, Kevin Pouslen, Wendy Grossman, Jay Lake, Ben Rosenbaum + +For the friends: Fiona Romeo, Quinn Norton, Danny O'Brien, Jon Gilbert, danah boyd, Zak Hanna, Emily Hurson, Grad Conn, John Henson, Amanda Foubister, Xeni Jardin, Mark Frauenfelder, David Pescovitz, John Battelle, Karl Levesque, Kate Miles, Neil and Tara-Lee Doctorow, Rael Dornfest, Ken Snider + +For the mentors: Judy Merril, Roz and Gord Doctorow, Harriet Wolff, Jim Kelly, Damon Knight, Scott Edelman + +Thank you all for giving me the tools to think and write about these ideas. + +1~cc_a_nc_sa Creative Commons + +!_ Creative Commons Legal Code + +!_ Attribution-NonCommercial-ShareAlike 3.0 Unported + +CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. 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For the avoidance of doubt, this trademark restriction does not form part of this License. + +Creative Commons may be contacted at http://creativecommons.org/. diff --git a/data/v3/samples/the_cathedral_and_the_bazaar.eric_s_raymond.sst b/data/v3/samples/the_cathedral_and_the_bazaar.eric_s_raymond.sst new file mode 100644 index 0000000..d7f4c4e --- /dev/null +++ b/data/v3/samples/the_cathedral_and_the_bazaar.eric_s_raymond.sst @@ -0,0 +1,600 @@ +% SiSU 2.0 + +@title: The Cathedral and the Bazaar + +@creator: + :author: Raymond, Eric S. + +@classify: + :type: Book + :topic_register: SiSU:markup sample:book;programming;software:open source software;open source software:development + +@rights: + :copyright: Copyright © 2000 Eric S. Raymond. + :license: Permission is granted to copy, distribute and/or modify this document under the terms of the Open Publication License, version 2.0. + +@date: + :published: 2002-08-02 + :created: 1997-05-21 + :issued: 1997-05-21 + :available: 1997-05-21 + :modified: 2002-08-02 + :oclc: 45835582 + +@links: + {The Cathedral and the Bazaar @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + {The Cathedral and the Bazaar, Source }http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ + {@ Wikipedia}http://en.wikipedia.org/wiki/The_Cathedral_and_the_Bazaar + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Free as in Freedom (on Richard Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {CatB @ Amazon.com}http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0596001088/ + {CatB @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0596001088 + +@make: + :breaks: new=:C; break=1 + :skin: skin_sisu + +@notes: + :abstract: I anatomize a successful open-source project, fetchmail, that was run as a deliberate test of the surprising theories about software engineering suggested by the history of Linux. I discuss these theories in terms of two fundamentally different development styles, the "cathedral" model of most of the commercial world versus the "bazaar" model of the Linux world. I show that these models derive from opposing assumptions about the nature of the software-debugging task. I then make a sustained argument from the Linux experience for the proposition that "Given enough eyeballs, all bugs are shallow", suggest productive analogies with other self-correcting systems of selfish agents, and conclude with some exploration of the implications of this insight for the future of software. + +:A~ @title @author + +1~ The Cathedral and the Bazaar + +Linux is subversive. Who would have thought even five years ago (1991) that a world-class operating system could coalesce as if by magic out of part-time hacking by several thousand developers scattered all over the planet, connected only by the tenuous strands of the Internet? + +Certainly not I. By the time Linux swam onto my radar screen in early 1993, I had already been involved in Unix and open-source development for ten years. I was one of the first GNU contributors in the mid-1980s. I had released a good deal of open-source software onto the net, developing or co-developing several programs (nethack, Emacs's VC and GUD modes, xlife, and others) that are still in wide use today. I thought I knew how it was done. + +Linux overturned much of what I thought I knew. I had been preaching the Unix gospel of small tools, rapid prototyping and evolutionary programming for years. But I also believed there was a certain critical complexity above which a more centralized, a priori approach was required. I believed that the most important software (operating systems and really large tools like the Emacs programming editor) needed to be built like cathedrals, carefully crafted by individual wizards or small bands of mages working in splendid isolation, with no beta to be released before its time. + +Linus Torvalds's style of development—release early and often, delegate everything you can, be open to the point of promiscuity—came as a surprise. No quiet, reverent cathedral-building here—rather, the Linux community seemed to resemble a great babbling bazaar of differing agendas and approaches (aptly symbolized by the Linux archive sites, who'd take submissions from anyone) out of which a coherent and stable system could seemingly emerge only by a succession of miracles. + +The fact that this bazaar style seemed to work, and work well, came as a distinct shock. As I learned my way around, I worked hard not just at individual projects, but also at trying to understand why the Linux world not only didn't fly apart in confusion but seemed to go from strength to strength at a speed barely imaginable to cathedral-builders. + +By mid-1996 I thought I was beginning to understand. Chance handed me a perfect way to test my theory, in the form of an open-source project that I could consciously try to run in the bazaar style. So I did—and it was a significant success. + +This is the story of that project. I'll use it to propose some aphorisms about effective open-source development. Not all of these are things I first learned in the Linux world, but we'll see how the Linux world gives them particular point. If I'm correct, they'll help you understand exactly what it is that makes the Linux community such a fountain of good software—and, perhaps, they will help you become more productive yourself. + +1~ The Mail Must Get Through + +Since 1993 I'd been running the technical side of a small free-access Internet service provider called Chester County InterLink (CCIL) in West Chester, Pennsylvania. I co-founded CCIL and wrote our unique multiuser bulletin-board software—you can check it out by telnetting to locke.ccil.org. Today it supports almost three thousand users on thirty lines. The job allowed me 24-hour-a-day access to the net through CCIL's 56K line—in fact, the job practically demanded it! + +I had gotten quite used to instant Internet email. I found having to periodically telnet over to locke to check my mail annoying. What I wanted was for my mail to be delivered on snark (my home system) so that I would be notified when it arrived and could handle it using all my local tools. + +The Internet's native mail forwarding protocol, SMTP (Simple Mail Transfer Protocol), wouldn't suit, because it works best when machines are connected full-time, while my personal machine isn't always on the Internet, and doesn't have a static IP address. What I needed was a program that would reach out over my intermittent dialup connection and pull across my mail to be delivered locally. I knew such things existed, and that most of them used a simple application protocol called POP (Post Office Protocol). POP is now widely supported by most common mail clients, but at the time, it wasn't built in to the mail reader I was using. + +I needed a POP3 client. So I went out on the Internet and found one. Actually, I found three or four. I used one of them for a while, but it was missing what seemed an obvious feature, the ability to hack the addresses on fetched mail so replies would work properly. + +The problem was this: suppose someone named `joe' on locke sent me mail. If I fetched the mail to snark and then tried to reply to it, my mailer would cheerfully try to ship it to a nonexistent `joe' on snark. Hand-editing reply addresses to tack on <@ccil.org> quickly got to be a serious pain. + +This was clearly something the computer ought to be doing for me. But none of the existing POP clients knew how! And this brings us to the first lesson: + +_1 1. Every good work of software starts by scratching a developer's personal itch. + +Perhaps this should have been obvious (it's long been proverbial that "Necessity is the mother of invention") but too often software developers spend their days grinding away for pay at programs they neither need nor love. But not in the Linux world—which may explain why the average quality of software originated in the Linux community is so high. + +So, did I immediately launch into a furious whirl of coding up a brand-new POP3 client to compete with the existing ones? Not on your life! I looked carefully at the POP utilities I had in hand, asking myself "Which one is closest to what I want?" Because: + +_1 2. Good programmers know what to write. Great ones know what to rewrite (and reuse). + +While I don't claim to be a great programmer, I try to imitate one. An important trait of the great ones is constructive laziness. They know that you get an A not for effort but for results, and that it's almost always easier to start from a good partial solution than from nothing at all. + +Linus Torvalds, for example, didn't actually try to write Linux from scratch. Instead, he started by reusing code and ideas from Minix, a tiny Unix-like operating system for PC clones. Eventually all the Minix code went away or was completely rewritten—but while it was there, it provided scaffolding for the infant that would eventually become Linux. + +In the same spirit, I went looking for an existing POP utility that was reasonably well coded, to use as a development base. + +The source-sharing tradition of the Unix world has always been friendly to code reuse (this is why the GNU project chose Unix as a base OS, in spite of serious reservations about the OS itself). The Linux world has taken this tradition nearly to its technological limit; it has terabytes of open sources generally available. So spending time looking for some else's almost-good-enough is more likely to give you good results in the Linux world than anywhere else. + +And it did for me. With those I'd found earlier, my second search made up a total of nine candidates—fetchpop, PopTart, get-mail, gwpop, pimp, pop-perl, popc, popmail and upop. The one I first settled on was `fetchpop' by Seung-Hong Oh. I put my header-rewrite feature in it, and made various other improvements which the author accepted into his 1.9 release. + +A few weeks later, though, I stumbled across the code for popclient by Carl Harris, and found I had a problem. Though fetchpop had some good original ideas in it (such as its background-daemon mode), it could only handle POP3 and was rather amateurishly coded (Seung-Hong was at that time a bright but inexperienced programmer, and both traits showed). Carl's code was better, quite professional and solid, but his program lacked several important and rather tricky-to-implement fetchpop features (including those I'd coded myself). + +Stay or switch? If I switched, I'd be throwing away the coding I'd already done in exchange for a better development base. + +A practical motive to switch was the presence of multiple-protocol support. POP3 is the most commonly used of the post-office server protocols, but not the only one. Fetchpop and the other competition didn't do POP2, RPOP, or APOP, and I was already having vague thoughts of perhaps adding IMAP (Internet Message Access Protocol, the most recently designed and most powerful post-office protocol) just for fun. + +But I had a more theoretical reason to think switching might be as good an idea as well, something I learned long before Linux. + +_1 3. "Plan to throw one away; you will, anyhow." (Fred Brooks, The Mythical Man-Month, Chapter 11) + +Or, to put it another way, you often don't really understand the problem until after the first time you implement a solution. The second time, maybe you know enough to do it right. So if you want to get it right, be ready to start over at least once [JB]. + +Well (I told myself) the changes to fetchpop had been my first try. So I switched. + +After I sent my first set of popclient patches to Carl Harris on 25 June 1996, I found out that he had basically lost interest in popclient some time before. The code was a bit dusty, with minor bugs hanging out. I had many changes to make, and we quickly agreed that the logical thing for me to do was take over the program. + +Without my actually noticing, the project had escalated. No longer was I just contemplating minor patches to an existing POP client. I took on maintaining an entire one, and there were ideas bubbling in my head that I knew would probably lead to major changes. + +In a software culture that encourages code-sharing, this is a natural way for a project to evolve. I was acting out this principle: + +_1 4. If you have the right attitude, interesting problems will find you. + +But Carl Harris's attitude was even more important. He understood that + +_1 5. When you lose interest in a program, your last duty to it is to hand it off to a competent successor. + +Without ever having to discuss it, Carl and I knew we had a common goal of having the best solution out there. The only question for either of us was whether I could establish that I was a safe pair of hands. Once I did that, he acted with grace and dispatch. I hope I will do as well when it comes my turn. + +1~ The Importance of Having Users + +And so I inherited popclient. Just as importantly, I inherited popclient's user base. Users are wonderful things to have, and not just because they demonstrate that you're serving a need, that you've done something right. Properly cultivated, they can become co-developers. + +Another strength of the Unix tradition, one that Linux pushes to a happy extreme, is that a lot of users are hackers too. Because source code is available, they can be effective hackers. This can be tremendously useful for shortening debugging time. Given a bit of encouragement, your users will diagnose problems, suggest fixes, and help improve the code far more quickly than you could unaided. + +_1 6. Treating your users as co-developers is your least-hassle route to rapid code improvement and effective debugging. + +The power of this effect is easy to underestimate. In fact, pretty well all of us in the open-source world drastically underestimated how well it would scale up with number of users and against system complexity, until Linus Torvalds showed us differently. + +In fact, I think Linus's cleverest and most consequential hack was not the construction of the Linux kernel itself, but rather his invention of the Linux development model. When I expressed this opinion in his presence once, he smiled and quietly repeated something he has often said: "I'm basically a very lazy person who likes to get credit for things other people actually do." Lazy like a fox. Or, as Robert Heinlein famously wrote of one of his characters, too lazy to fail. + +In retrospect, one precedent for the methods and success of Linux can be seen in the development of the GNU Emacs Lisp library and Lisp code archives. In contrast to the cathedral-building style of the Emacs C core and most other GNU tools, the evolution of the Lisp code pool was fluid and very user-driven. Ideas and prototype modes were often rewritten three or four times before reaching a stable final form. And loosely-coupled collaborations enabled by the Internet, a la Linux, were frequent. + +Indeed, my own most successful single hack previous to fetchmail was probably Emacs VC (version control) mode, a Linux-like collaboration by email with three other people, only one of whom (Richard Stallman, the author of Emacs and founder of the Free Software Foundation) I have met to this day. It was a front-end for SCCS, RCS and later CVS from within Emacs that offered "one-touch" version control operations. It evolved from a tiny, crude sccs.el mode somebody else had written. And the development of VC succeeded because, unlike Emacs itself, Emacs Lisp code could go through release/test/improve generations very quickly. + +The Emacs story is not unique. There have been other software products with a two-level architecture and a two-tier user community that combined a cathedral-mode core and a bazaar-mode toolbox. One such is MATLAB, a commercial data-analysis and visualization tool. Users of MATLAB and other products with a similar structure invariably report that the action, the ferment, the innovation mostly takes place in the open part of the tool where a large and varied community can tinker with it. + +1~ Release Early, Release Often + +Early and frequent releases are a critical part of the Linux development model. Most developers (including me) used to believe this was bad policy for larger than trivial projects, because early versions are almost by definition buggy versions and you don't want to wear out the patience of your users. + +This belief reinforced the general commitment to a cathedral-building style of development. If the overriding objective was for users to see as few bugs as possible, why then you'd only release a version every six months (or less often), and work like a dog on debugging between releases. The Emacs C core was developed this way. The Lisp library, in effect, was not—because there were active Lisp archives outside the FSF's control, where you could go to find new and development code versions independently of Emacs's release cycle [QR]. + +The most important of these, the Ohio State Emacs Lisp archive, anticipated the spirit and many of the features of today's big Linux archives. But few of us really thought very hard about what we were doing, or about what the very existence of that archive suggested about problems in the FSF's cathedral-building development model. I made one serious attempt around 1992 to get a lot of the Ohio code formally merged into the official Emacs Lisp library. I ran into political trouble and was largely unsuccessful. + +But by a year later, as Linux became widely visible, it was clear that something different and much healthier was going on there. Linus's open development policy was the very opposite of cathedral-building. Linux's Internet archives were burgeoning, multiple distributions were being floated. And all of this was driven by an unheard-of frequency of core system releases. + +Linus was treating his users as co-developers in the most effective possible way: + +_1 7. Release early. Release often. And listen to your customers. + +Linus's innovation wasn't so much in doing quick-turnaround releases incorporating lots of user feedback (something like this had been Unix-world tradition for a long time), but in scaling it up to a level of intensity that matched the complexity of what he was developing. In those early times (around 1991) it wasn't unknown for him to release a new kernel more than once a day! Because he cultivated his base of co-developers and leveraged the Internet for collaboration harder than anyone else, this worked. + +But how did it work? And was it something I could duplicate, or did it rely on some unique genius of Linus Torvalds? + +I didn't think so. Granted, Linus is a damn fine hacker. How many of us could engineer an entire production-quality operating system kernel from scratch? But Linux didn't represent any awesome conceptual leap forward. Linus is not (or at least, not yet) an innovative genius of design in the way that, say, Richard Stallman or James Gosling (of NeWS and Java) are. Rather, Linus seems to me to be a genius of engineering and implementation, with a sixth sense for avoiding bugs and development dead-ends and a true knack for finding the minimum-effort path from point A to point B. Indeed, the whole design of Linux breathes this quality and mirrors Linus's essentially conservative and simplifying design approach. + +So, if rapid releases and leveraging the Internet medium to the hilt were not accidents but integral parts of Linus's engineering-genius insight into the minimum-effort path, what was he maximizing? What was he cranking out of the machinery? + +Put that way, the question answers itself. Linus was keeping his hacker/users constantly stimulated and rewarded—stimulated by the prospect of having an ego-satisfying piece of the action, rewarded by the sight of constant (even daily) improvement in their work. + +Linus was directly aiming to maximize the number of person-hours thrown at debugging and development, even at the possible cost of instability in the code and user-base burnout if any serious bug proved intractable. Linus was behaving as though he believed something like this: + +_1 8. Given a large enough beta-tester and co-developer base, almost every problem will be characterized quickly and the fix obvious to someone. + +Or, less formally, "Given enough eyeballs, all bugs are shallow." I dub this: "Linus's Law". + +My original formulation was that every problem "will be transparent to somebody". Linus demurred that the person who understands and fixes the problem is not necessarily or even usually the person who first characterizes it. "Somebody finds the problem," he says, "and somebody else understands it. And I'll go on record as saying that finding it is the bigger challenge." That correction is important; we'll see how in the next section, when we examine the practice of debugging in more detail. But the key point is that both parts of the process (finding and fixing) tend to happen rapidly. + +In Linus's Law, I think, lies the core difference underlying the cathedral-builder and bazaar styles. In the cathedral-builder view of programming, bugs and development problems are tricky, insidious, deep phenomena. It takes months of scrutiny by a dedicated few to develop confidence that you've winkled them all out. Thus the long release intervals, and the inevitable disappointment when long-awaited releases are not perfect. + +In the bazaar view, on the other hand, you assume that bugs are generally shallow phenomena—or, at least, that they turn shallow pretty quickly when exposed to a thousand eager co-developers pounding on every single new release. Accordingly you release often in order to get more corrections, and as a beneficial side effect you have less to lose if an occasional botch gets out the door. + +And that's it. That's enough. If "Linus's Law" is false, then any system as complex as the Linux kernel, being hacked over by as many hands as the that kernel was, should at some point have collapsed under the weight of unforseen bad interactions and undiscovered "deep" bugs. If it's true, on the other hand, it is sufficient to explain Linux's relative lack of bugginess and its continuous uptimes spanning months or even years. + +Maybe it shouldn't have been such a surprise, at that. Sociologists years ago discovered that the averaged opinion of a mass of equally expert (or equally ignorant) observers is quite a bit more reliable a predictor than the opinion of a single randomly-chosen one of the observers. They called this the Delphi effect. It appears that what Linus has shown is that this applies even to debugging an operating system—that the Delphi effect can tame development complexity even at the complexity level of an OS kernel. [CV] + +One special feature of the Linux situation that clearly helps along the Delphi effect is the fact that the contributors for any given project are self-selected. An early respondent pointed out that contributions are received not from a random sample, but from people who are interested enough to use the software, learn about how it works, attempt to find solutions to problems they encounter, and actually produce an apparently reasonable fix. Anyone who passes all these filters is highly likely to have something useful to contribute. + +Linus's Law can be rephrased as "Debugging is parallelizable". Although debugging requires debuggers to communicate with some coordinating developer, it doesn't require significant coordination between debuggers. Thus it doesn't fall prey to the same quadratic complexity and management costs that make adding developers problematic. + +In practice, the theoretical loss of efficiency due to duplication of work by debuggers almost never seems to be an issue in the Linux world. One effect of a "release early and often" policy is to minimize such duplication by propagating fed-back fixes quickly [JH]. + +Brooks (the author of The Mythical Man-Month) even made an off-hand observation related to this: "The total cost of maintaining a widely used program is typically 40 percent or more of the cost of developing it. Surprisingly this cost is strongly affected by the number of users. More users find more bugs." [emphasis added]. + +More users find more bugs because adding more users adds more different ways of stressing the program. This effect is amplified when the users are co-developers. Each one approaches the task of bug characterization with a slightly different perceptual set and analytical toolkit, a different angle on the problem. The "Delphi effect" seems to work precisely because of this variation. In the specific context of debugging, the variation also tends to reduce duplication of effort. + +So adding more beta-testers may not reduce the complexity of the current "deepest" bug from the developer's point of view, but it increases the probability that someone's toolkit will be matched to the problem in such a way that the bug is shallow to that person. + +Linus coppers his bets, too. In case there are serious bugs, Linux kernel version are numbered in such a way that potential users can make a choice either to run the last version designated "stable" or to ride the cutting edge and risk bugs in order to get new features. This tactic is not yet systematically imitated by most Linux hackers, but perhaps it should be; the fact that either choice is available makes both more attractive. [HBS] + +1~ How Many Eyeballs Tame Complexity + +It's one thing to observe in the large that the bazaar style greatly accelerates debugging and code evolution. It's another to understand exactly how and why it does so at the micro-level of day-to-day developer and tester behavior. In this section (written three years after the original paper, using insights by developers who read it and re-examined their own behavior) we'll take a hard look at the actual mechanisms. Non-technically inclined readers can safely skip to the next section. + +One key to understanding is to realize exactly why it is that the kind of bug report non–source-aware users normally turn in tends not to be very useful. Non–source-aware users tend to report only surface symptoms; they take their environment for granted, so they (a) omit critical background data, and (b) seldom include a reliable recipe for reproducing the bug. + +The underlying problem here is a mismatch between the tester's and the developer's mental models of the program; the tester, on the outside looking in, and the developer on the inside looking out. In closed-source development they're both stuck in these roles, and tend to talk past each other and find each other deeply frustrating. + +Open-source development breaks this bind, making it far easier for tester and developer to develop a shared representation grounded in the actual source code and to communicate effectively about it. Practically, there is a huge difference in leverage for the developer between the kind of bug report that just reports externally-visible symptoms and the kind that hooks directly to the developer's source-code–based mental representation of the program. + +Most bugs, most of the time, are easily nailed given even an incomplete but suggestive characterization of their error conditions at source-code level. When someone among your beta-testers can point out, "there's a boundary problem in line nnn", or even just "under conditions X, Y, and Z, this variable rolls over", a quick look at the offending code often suffices to pin down the exact mode of failure and generate a fix. + +Thus, source-code awareness by both parties greatly enhances both good communication and the synergy between what a beta-tester reports and what the core developer(s) know. In turn, this means that the core developers' time tends to be well conserved, even with many collaborators. + +Another characteristic of the open-source method that conserves developer time is the communication structure of typical open-source projects. Above I used the term "core developer"; this reflects a distinction between the project core (typically quite small; a single core developer is common, and one to three is typical) and the project halo of beta-testers and available contributors (which often numbers in the hundreds). + +The fundamental problem that traditional software-development organization addresses is Brook's Law: "Adding more programmers to a late project makes it later." More generally, Brooks's Law predicts that the complexity and communication costs of a project rise with the square of the number of developers, while work done only rises linearly. + +Brooks's Law is founded on experience that bugs tend strongly to cluster at the interfaces between code written by different people, and that communications/coordination overhead on a project tends to rise with the number of interfaces between human beings. Thus, problems scale with the number of communications paths between developers, which scales as the square of the humber of developers (more precisely, according to the formula N*(N - 1)/2 where N is the number of developers). + +The Brooks's Law analysis (and the resulting fear of large numbers in development groups) rests on a hidden assummption: that the communications structure of the project is necessarily a complete graph, that everybody talks to everybody else. But on open-source projects, the halo developers work on what are in effect separable parallel subtasks and interact with each other very little; code changes and bug reports stream through the core group, and only within that small core group do we pay the full Brooksian overhead. [SU] + +There are are still more reasons that source-code–level bug reporting tends to be very efficient. They center around the fact that a single error can often have multiple possible symptoms, manifesting differently depending on details of the user's usage pattern and environment. Such errors tend to be exactly the sort of complex and subtle bugs (such as dynamic-memory-management errors or nondeterministic interrupt-window artifacts) that are hardest to reproduce at will or to pin down by static analysis, and which do the most to create long-term problems in software. + +A tester who sends in a tentative source-code–level characterization of such a multi-symptom bug (e.g. "It looks to me like there's a window in the signal handling near line 1250" or "Where are you zeroing that buffer?") may give a developer, otherwise too close to the code to see it, the critical clue to a half-dozen disparate symptoms. In cases like this, it may be hard or even impossible to know which externally-visible misbehaviour was caused by precisely which bug—but with frequent releases, it's unnecessary to know. Other collaborators will be likely to find out quickly whether their bug has been fixed or not. In many cases, source-level bug reports will cause misbehaviours to drop out without ever having been attributed to any specific fix. + +Complex multi-symptom errors also tend to have multiple trace paths from surface symptoms back to the actual bug. Which of the trace paths a given developer or tester can chase may depend on subtleties of that person's environment, and may well change in a not obviously deterministic way over time. In effect, each developer and tester samples a semi-random set of the program's state space when looking for the etiology of a symptom. The more subtle and complex the bug, the less likely that skill will be able to guarantee the relevance of that sample. + +For simple and easily reproducible bugs, then, the accent will be on the "semi" rather than the "random"; debugging skill and intimacy with the code and its architecture will matter a lot. But for complex bugs, the accent will be on the "random". Under these circumstances many people running traces will be much more effective than a few people running traces sequentially—even if the few have a much higher average skill level. + +This effect will be greatly amplified if the difficulty of following trace paths from different surface symptoms back to a bug varies significantly in a way that can't be predicted by looking at the symptoms. A single developer sampling those paths sequentially will be as likely to pick a difficult trace path on the first try as an easy one. On the other hand, suppose many people are trying trace paths in parallel while doing rapid releases. Then it is likely one of them will find the easiest path immediately, and nail the bug in a much shorter time. The project maintainer will see that, ship a new release, and the other people running traces on the same bug will be able to stop before having spent too much time on their more difficult traces [RJ]. + +1~ When Is a Rose Not a Rose? + +Having studied Linus's behavior and formed a theory about why it was successful, I made a conscious decision to test this theory on my new (admittedly much less complex and ambitious) project. + +But the first thing I did was reorganize and simplify popclient a lot. Carl Harris's implementation was very sound, but exhibited a kind of unnecessary complexity common to many C programmers. He treated the code as central and the data structures as support for the code. As a result, the code was beautiful but the data structure design ad-hoc and rather ugly (at least by the high standards of this veteran LISP hacker). + +I had another purpose for rewriting besides improving the code and the data structure design, however. That was to evolve it into something I understood completely. It's no fun to be responsible for fixing bugs in a program you don't understand. + +For the first month or so, then, I was simply following out the implications of Carl's basic design. The first serious change I made was to add IMAP support. I did this by reorganizing the protocol machines into a generic driver and three method tables (for POP2, POP3, and IMAP). This and the previous changes illustrate a general principle that's good for programmers to keep in mind, especially in languages like C that don't naturally do dynamic typing: + +_1 9. Smart data structures and dumb code works a lot better than the other way around. + +Brooks, Chapter 9: "Show me your flowchart and conceal your tables, and I shall continue to be mystified. Show me your tables, and I won't usually need your flowchart; it'll be obvious." Allowing for thirty years of terminological/cultural shift, it's the same point. + +At this point (early September 1996, about six weeks from zero) I started thinking that a name change might be in order—after all, it wasn't just a POP client any more. But I hesitated, because there was as yet nothing genuinely new in the design. My version of popclient had yet to develop an identity of its own. + +That changed, radically, when popclient learned how to forward fetched mail to the SMTP port. I'll get to that in a moment. But first: I said earlier that I'd decided to use this project to test my theory about what Linus Torvalds had done right. How (you may well ask) did I do that? In these ways: + +_* I released early and often (almost never less often than every ten days; during periods of intense development, once a day). + +_* I grew my beta list by adding to it everyone who contacted me about fetchmail. + +_* I sent chatty announcements to the beta list whenever I released, encouraging people to participate. + +_* And I listened to my beta-testers, polling them about design decisions and stroking them whenever they sent in patches and feedback. + +The payoff from these simple measures was immediate. From the beginning of the project, I got bug reports of a quality most developers would kill for, often with good fixes attached. I got thoughtful criticism, I got fan mail, I got intelligent feature suggestions. Which leads to: + +_1 10. If you treat your beta-testers as if they're your most valuable resource, they will respond by becoming your most valuable resource. + +One interesting measure of fetchmail's success is the sheer size of the project beta list, fetchmail-friends. At the time of latest revision of this paper (November 2000) it has 287 members and is adding two or three a week. + +Actually, when I revised in late May 1997 I found the list was beginning to lose members from its high of close to 300 for an interesting reason. Several people have asked me to unsubscribe them because fetchmail is working so well for them that they no longer need to see the list traffic! Perhaps this is part of the normal life-cycle of a mature bazaar-style project. + +1~ Popclient becomes Fetchmail + +The real turning point in the project was when Harry Hochheiser sent me his scratch code for forwarding mail to the client machine's SMTP port. I realized almost immediately that a reliable implementation of this feature would make all the other mail delivery modes next to obsolete. + +For many weeks I had been tweaking fetchmail rather incrementally while feeling like the interface design was serviceable but grubby—inelegant and with too many exiguous options hanging out all over. The options to dump fetched mail to a mailbox file or standard output particularly bothered me, but I couldn't figure out why. + +(If you don't care about the technicalia of Internet mail, the next two paragraphs can be safely skipped.) + +What I saw when I thought about SMTP forwarding was that popclient had been trying to do too many things. It had been designed to be both a mail transport agent (MTA) and a local delivery agent (MDA). With SMTP forwarding, it could get out of the MDA business and be a pure MTA, handing off mail to other programs for local delivery just as sendmail does. + +Why mess with all the complexity of configuring a mail delivery agent or setting up lock-and-append on a mailbox when port 25 is almost guaranteed to be there on any platform with TCP/IP support in the first place? Especially when this means retrieved mail is guaranteed to look like normal sender-initiated SMTP mail, which is really what we want anyway. + +(Back to a higher level....) + +Even if you didn't follow the preceding technical jargon, there are several important lessons here. First, this SMTP-forwarding concept was the biggest single payoff I got from consciously trying to emulate Linus's methods. A user gave me this terrific idea—all I had to do was understand the implications. + +_1 11. The next best thing to having good ideas is recognizing good ideas from your users. Sometimes the latter is better. + +Interestingly enough, you will quickly find that if you are completely and self-deprecatingly truthful about how much you owe other people, the world at large will treat you as though you did every bit of the invention yourself and are just being becomingly modest about your innate genius. We can all see how well this worked for Linus! + +(When I gave my talk at the first Perl Conference in August 1997, hacker extraordinaire Larry Wall was in the front row. As I got to the last line above he called out, religious-revival style, "Tell it, tell it, brother!". The whole audience laughed, because they knew this had worked for the inventor of Perl, too.) + +After a very few weeks of running the project in the same spirit, I began to get similar praise not just from my users but from other people to whom the word leaked out. I stashed away some of that email; I'll look at it again sometime if I ever start wondering whether my life has been worthwhile :-). + +But there are two more fundamental, non-political lessons here that are general to all kinds of design. + +_1 12. Often, the most striking and innovative solutions come from realizing that your concept of the problem was wrong. + +I had been trying to solve the wrong problem by continuing to develop popclient as a combined MTA/MDA with all kinds of funky local delivery modes. Fetchmail's design needed to be rethought from the ground up as a pure MTA, a part of the normal SMTP-speaking Internet mail path. + +When you hit a wall in development—when you find yourself hard put to think past the next patch—it's often time to ask not whether you've got the right answer, but whether you're asking the right question. Perhaps the problem needs to be reframed. + +Well, I had reframed my problem. Clearly, the right thing to do was (1) hack SMTP forwarding support into the generic driver, (2) make it the default mode, and (3) eventually throw out all the other delivery modes, especially the deliver-to-file and deliver-to-standard-output options. + +I hesitated over step 3 for some time, fearing to upset long-time popclient users dependent on the alternate delivery mechanisms. In theory, they could immediately switch to .forward files or their non-sendmail equivalents to get the same effects. In practice the transition might have been messy. + +But when I did it, the benefits proved huge. The cruftiest parts of the driver code vanished. Configuration got radically simpler—no more grovelling around for the system MDA and user's mailbox, no more worries about whether the underlying OS supports file locking. + +Also, the only way to lose mail vanished. If you specified delivery to a file and the disk got full, your mail got lost. This can't happen with SMTP forwarding because your SMTP listener won't return OK unless the message can be delivered or at least spooled for later delivery. + +Also, performance improved (though not so you'd notice it in a single run). Another not insignificant benefit of this change was that the manual page got a lot simpler. + +Later, I had to bring delivery via a user-specified local MDA back in order to allow handling of some obscure situations involving dynamic SLIP. But I found a much simpler way to do it. + +The moral? Don't hesitate to throw away superannuated features when you can do it without loss of effectiveness. Antoine de Saint-Exupéry (who was an aviator and aircraft designer when he wasn't authoring classic children's books) said: + +_1 13. "Perfection (in design) is achieved not when there is nothing more to add, but rather when there is nothing more to take away." + +When your code is getting both better and simpler, that is when you know it's right. And in the process, the fetchmail design acquired an identity of its own, different from the ancestral popclient. + +It was time for the name change. The new design looked much more like a dual of sendmail than the old popclient had; both are MTAs, but where sendmail pushes then delivers, the new popclient pulls then delivers. So, two months off the blocks, I renamed it fetchmail. + +There is a more general lesson in this story about how SMTP delivery came to fetchmail. It is not only debugging that is parallelizable; development and (to a perhaps surprising extent) exploration of design space is, too. When your development mode is rapidly iterative, development and enhancement may become special cases of debugging—fixing `bugs of omission' in the original capabilities or concept of the software. + +Even at a higher level of design, it can be very valuable to have lots of co-developers random-walking through the design space near your product. Consider the way a puddle of water finds a drain, or better yet how ants find food: exploration essentially by diffusion, followed by exploitation mediated by a scalable communication mechanism. This works very well; as with Harry Hochheiser and me, one of your outriders may well find a huge win nearby that you were just a little too close-focused to see. + +1~ Fetchmail Grows Up + +There I was with a neat and innovative design, code that I knew worked well because I used it every day, and a burgeoning beta list. It gradually dawned on me that I was no longer engaged in a trivial personal hack that might happen to be useful to few other people. I had my hands on a program that every hacker with a Unix box and a SLIP/PPP mail connection really needs. + +With the SMTP forwarding feature, it pulled far enough in front of the competition to potentially become a "category killer", one of those classic programs that fills its niche so competently that the alternatives are not just discarded but almost forgotten. + +I think you can't really aim or plan for a result like this. You have to get pulled into it by design ideas so powerful that afterward the results just seem inevitable, natural, even foreordained. The only way to try for ideas like that is by having lots of ideas—or by having the engineering judgment to take other peoples' good ideas beyond where the originators thought they could go. + +Andy Tanenbaum had the original idea to build a simple native Unix for IBM PCs, for use as a teaching tool (he called it Minix). Linus Torvalds pushed the Minix concept further than Andrew probably thought it could go—and it grew into something wonderful. In the same way (though on a smaller scale), I took some ideas by Carl Harris and Harry Hochheiser and pushed them hard. Neither of us was `original' in the romantic way people think is genius. But then, most science and engineering and software development isn't done by original genius, hacker mythology to the contrary. + +The results were pretty heady stuff all the same—in fact, just the kind of success every hacker lives for! And they meant I would have to set my standards even higher. To make fetchmail as good as I now saw it could be, I'd have to write not just for my own needs, but also include and support features necessary to others but outside my orbit. And do that while keeping the program simple and robust. + +The first and overwhelmingly most important feature I wrote after realizing this was multidrop support—the ability to fetch mail from mailboxes that had accumulated all mail for a group of users, and then route each piece of mail to its individual recipients. + +I decided to add the multidrop support partly because some users were clamoring for it, but mostly because I thought it would shake bugs out of the single-drop code by forcing me to deal with addressing in full generality. And so it proved. Getting RFC 822 address parsing right took me a remarkably long time, not because any individual piece of it is hard but because it involved a pile of interdependent and fussy details. + +But multidrop addressing turned out to be an excellent design decision as well. Here's how I knew: + +_1 14. Any tool should be useful in the expected way, but a truly great tool lends itself to uses you never expected. + +The unexpected use for multidrop fetchmail is to run mailing lists with the list kept, and alias expansion done, on the client side of the Internet connection. This means someone running a personal machine through an ISP account can manage a mailing list without continuing access to the ISP's alias files. + +Another important change demanded by my beta-testers was support for 8-bit MIME (Multipurpose Internet Mail Extensions) operation. This was pretty easy to do, because I had been careful to keep the code 8-bit clean (that is, to not press the 8th bit, unused in the ASCII character set, into service to carry information within the program). Not because I anticipated the demand for this feature, but rather in obedience to another rule: + +_1 15. When writing gateway software of any kind, take pains to disturb the data stream as little as possible—and never throw away information unless the recipient forces you to! + +Had I not obeyed this rule, 8-bit MIME support would have been difficult and buggy. As it was, all I had to do is read the MIME standard (RFC 1652) and add a trivial bit of header-generation logic. + +Some European users bugged me into adding an option to limit the number of messages retrieved per session (so they can control costs from their expensive phone networks). I resisted this for a long time, and I'm still not entirely happy about it. But if you're writing for the world, you have to listen to your customers—this doesn't change just because they're not paying you in money. + +1~ A Few More Lessons from Fetchmail + +Before we go back to general software-engineering issues, there are a couple more specific lessons from the fetchmail experience to ponder. Nontechnical readers can safely skip this section. + +The rc (control) file syntax includes optional `noise' keywords that are entirely ignored by the parser. The English-like syntax they allow is considerably more readable than the traditional terse keyword-value pairs you get when you strip them all out. + +These started out as a late-night experiment when I noticed how much the rc file declarations were beginning to resemble an imperative minilanguage. (This is also why I changed the original popclient "server" keyword to "poll"). + +It seemed to me that trying to make that imperative minilanguage more like English might make it easier to use. Now, although I'm a convinced partisan of the "make it a language" school of design as exemplified by Emacs and HTML and many database engines, I am not normally a big fan of "English-like" syntaxes. + +Traditionally programmers have tended to favor control syntaxes that are very precise and compact and have no redundancy at all. This is a cultural legacy from when computing resources were expensive, so parsing stages had to be as cheap and simple as possible. English, with about 50% redundancy, looked like a very inappropriate model then. + +This is not my reason for normally avoiding English-like syntaxes; I mention it here only to demolish it. With cheap cycles and core, terseness should not be an end in itself. Nowadays it's more important for a language to be convenient for humans than to be cheap for the computer. + +There remain, however, good reasons to be wary. One is the complexity cost of the parsing stage—you don't want to raise that to the point where it's a significant source of bugs and user confusion in itself. Another is that trying to make a language syntax English-like often demands that the "English" it speaks be bent seriously out of shape, so much so that the superficial resemblance to natural language is as confusing as a traditional syntax would have been. (You see this bad effect in a lot of so-called "fourth generation" and commercial database-query languages.) + +The fetchmail control syntax seems to avoid these problems because the language domain is extremely restricted. It's nowhere near a general-purpose language; the things it says simply are not very complicated, so there's little potential for confusion in moving mentally between a tiny subset of English and the actual control language. I think there may be a broader lesson here: + +_1 16. When your language is nowhere near Turing-complete, syntactic sugar can be your friend. + +Another lesson is about security by obscurity. Some fetchmail users asked me to change the software to store passwords encrypted in the rc file, so snoopers wouldn't be able to casually see them. + +I didn't do it, because this doesn't actually add protection. Anyone who's acquired permissions to read your rc file will be able to run fetchmail as you anyway—and if it's your password they're after, they'd be able to rip the necessary decoder out of the fetchmail code itself to get it. + +All .fetchmailrc password encryption would have done is give a false sense of security to people who don't think very hard. The general rule here is: + +_1 17. A security system is only as secure as its secret. Beware of pseudo-secrets. + +1~ Necessary Preconditions for the Bazaar Style + +Early reviewers and test audiences for this essay consistently raised questions about the preconditions for successful bazaar-style development, including both the qualifications of the project leader and the state of code at the time one goes public and starts to try to build a co-developer community. + +It's fairly clear that one cannot code from the ground up in bazaar style [IN]. One can test, debug and improve in bazaar style, but it would be very hard to originate a project in bazaar mode. Linus didn't try it. I didn't either. Your nascent developer community needs to have something runnable and testable to play with. + +When you start community-building, what you need to be able to present is a plausible promise. Your program doesn't have to work particularly well. It can be crude, buggy, incomplete, and poorly documented. What it must not fail to do is (a) run, and (b) convince potential co-developers that it can be evolved into something really neat in the foreseeable future. + +Linux and fetchmail both went public with strong, attractive basic designs. Many people thinking about the bazaar model as I have presented it have correctly considered this critical, then jumped from that to the conclusion that a high degree of design intuition and cleverness in the project leader is indispensable. + +But Linus got his design from Unix. I got mine initially from the ancestral popclient (though it would later change a great deal, much more proportionately speaking than has Linux). So does the leader/coordinator for a bazaar-style effort really have to have exceptional design talent, or can he get by through leveraging the design talent of others? + +I think it is not critical that the coordinator be able to originate designs of exceptional brilliance, but it is absolutely critical that the coordinator be able to recognize good design ideas from others. + +Both the Linux and fetchmail projects show evidence of this. Linus, while not (as previously discussed) a spectacularly original designer, has displayed a powerful knack for recognizing good design and integrating it into the Linux kernel. And I have already described how the single most powerful design idea in fetchmail (SMTP forwarding) came from somebody else. + +Early audiences of this essay complimented me by suggesting that I am prone to undervalue design originality in bazaar projects because I have a lot of it myself, and therefore take it for granted. There may be some truth to this; design (as opposed to coding or debugging) is certainly my strongest skill. + +But the problem with being clever and original in software design is that it gets to be a habit—you start reflexively making things cute and complicated when you should be keeping them robust and simple. I have had projects crash on me because I made this mistake, but I managed to avoid this with fetchmail. + +So I believe the fetchmail project succeeded partly because I restrained my tendency to be clever; this argues (at least) against design originality being essential for successful bazaar projects. And consider Linux. Suppose Linus Torvalds had been trying to pull off fundamental innovations in operating system design during the development; does it seem at all likely that the resulting kernel would be as stable and successful as what we have? + +A certain base level of design and coding skill is required, of course, but I expect almost anybody seriously thinking of launching a bazaar effort will already be above that minimum. The open-source community's internal market in reputation exerts subtle pressure on people not to launch development efforts they're not competent to follow through on. So far this seems to have worked pretty well. + +There is another kind of skill not normally associated with software development which I think is as important as design cleverness to bazaar projects—and it may be more important. A bazaar project coordinator or leader must have good people and communications skills. + +This should be obvious. In order to build a development community, you need to attract people, interest them in what you're doing, and keep them happy about the amount of work they're doing. Technical sizzle will go a long way towards accomplishing this, but it's far from the whole story. The personality you project matters, too. + +It is not a coincidence that Linus is a nice guy who makes people like him and want to help him. It's not a coincidence that I'm an energetic extrovert who enjoys working a crowd and has some of the delivery and instincts of a stand-up comic. To make the bazaar model work, it helps enormously if you have at least a little skill at charming people. + +1~ The Social Context of Open-Source Software + +It is truly written: the best hacks start out as personal solutions to the author's everyday problems, and spread because the problem turns out to be typical for a large class of users. This takes us back to the matter of rule 1, restated in a perhaps more useful way: + +_1 18. To solve an interesting problem, start by finding a problem that is interesting to you. + +So it was with Carl Harris and the ancestral popclient, and so with me and fetchmail. But this has been understood for a long time. The interesting point, the point that the histories of Linux and fetchmail seem to demand we focus on, is the next stage—the evolution of software in the presence of a large and active community of users and co-developers. + +In The Mythical Man-Month, Fred Brooks observed that programmer time is not fungible; adding developers to a late software project makes it later. As we've seen previously, he argued that the complexity and communication costs of a project rise with the square of the number of developers, while work done only rises linearly. Brooks's Law has been widely regarded as a truism. But we've examined in this essay an number of ways in which the process of open-source development falsifies the assumptionms behind it—and, empirically, if Brooks's Law were the whole picture Linux would be impossible. + +Gerald Weinberg's classic The Psychology of Computer Programming supplied what, in hindsight, we can see as a vital correction to Brooks. In his discussion of "egoless programming", Weinberg observed that in shops where developers are not territorial about their code, and encourage other people to look for bugs and potential improvements in it, improvement happens dramatically faster than elsewhere. (Recently, Kent Beck's `extreme programming' technique of deploying coders in pairs looking over one anothers' shoulders might be seen as an attempt to force this effect.) + +Weinberg's choice of terminology has perhaps prevented his analysis from gaining the acceptance it deserved—one has to smile at the thought of describing Internet hackers as "egoless". But I think his argument looks more compelling today than ever. + +The bazaar method, by harnessing the full power of the "egoless programming" effect, strongly mitigates the effect of Brooks's Law. The principle behind Brooks's Law is not repealed, but given a large developer population and cheap communications its effects can be swamped by competing nonlinearities that are not otherwise visible. This resembles the relationship between Newtonian and Einsteinian physics—the older system is still valid at low energies, but if you push mass and velocity high enough you get surprises like nuclear explosions or Linux. + +The history of Unix should have prepared us for what we're learning from Linux (and what I've verified experimentally on a smaller scale by deliberately copying Linus's methods [EGCS]). That is, while coding remains an essentially solitary activity, the really great hacks come from harnessing the attention and brainpower of entire communities. The developer who uses only his or her own brain in a closed project is going to fall behind the developer who knows how to create an open, evolutionary context in which feedback exploring the design space, code contributions, bug-spotting, and other improvements come from from hundreds (perhaps thousands) of people. + +But the traditional Unix world was prevented from pushing this approach to the ultimate by several factors. One was the legal contraints of various licenses, trade secrets, and commercial interests. Another (in hindsight) was that the Internet wasn't yet good enough. + +Before cheap Internet, there were some geographically compact communities where the culture encouraged Weinberg's "egoless" programming, and a developer could easily attract a lot of skilled kibitzers and co-developers. Bell Labs, the MIT AI and LCS labs, UC Berkeley—these became the home of innovations that are legendary and still potent. + +Linux was the first project for which a conscious and successful effort to use the entire world as its talent pool was made. I don't think it's a coincidence that the gestation period of Linux coincided with the birth of the World Wide Web, and that Linux left its infancy during the same period in 1993–1994 that saw the takeoff of the ISP industry and the explosion of mainstream interest in the Internet. Linus was the first person who learned how to play by the new rules that pervasive Internet access made possible. + +While cheap Internet was a necessary condition for the Linux model to evolve, I think it was not by itself a sufficient condition. Another vital factor was the development of a leadership style and set of cooperative customs that could allow developers to attract co-developers and get maximum leverage out of the medium. + +But what is this leadership style and what are these customs? They cannot be based on power relationships—and even if they could be, leadership by coercion would not produce the results we see. Weinberg quotes the autobiography of the 19th-century Russian anarchist Pyotr Alexeyvich Kropotkin's Memoirs of a Revolutionist to good effect on this subject: + +_1 Having been brought up in a serf-owner's family, I entered active life, like all young men of my time, with a great deal of confidence in the necessity of commanding, ordering, scolding, punishing and the like. But when, at an early stage, I had to manage serious enterprises and to deal with [free] men, and when each mistake would lead at once to heavy consequences, I began to appreciate the difference between acting on the principle of command and discipline and acting on the principle of common understanding. The former works admirably in a military parade, but it is worth nothing where real life is concerned, and the aim can be achieved only through the severe effort of many converging wills. + +The "severe effort of many converging wills" is precisely what a project like Linux requires—and the "principle of command" is effectively impossible to apply among volunteers in the anarchist's paradise we call the Internet. To operate and compete effectively, hackers who want to lead collaborative projects have to learn how to recruit and energize effective communities of interest in the mode vaguely suggested by Kropotkin's "principle of understanding". They must learn to use Linus's Law.[SP] + +Earlier I referred to the "Delphi effect" as a possible explanation for Linus's Law. But more powerful analogies to adaptive systems in biology and economics also irresistably suggest themselves. The Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximize utility which in the process produces a self-correcting spontaneous order more elaborate and efficient than any amount of central planning could have achieved. Here, then, is the place to seek the "principle of understanding". + +The "utility function" Linux hackers are maximizing is not classically economic, but is the intangible of their own ego satisfaction and reputation among other hackers. (One may call their motivation "altruistic", but this ignores the fact that altruism is itself a form of ego satisfaction for the altruist). Voluntary cultures that work this way are not actually uncommon; one other in which I have long participated is science fiction fandom, which unlike hackerdom has long explicitly recognized "egoboo" (ego-boosting, or the enhancement of one's reputation among other fans) as the basic drive behind volunteer activity. + +Linus, by successfully positioning himself as the gatekeeper of a project in which the development is mostly done by others, and nurturing interest in the project until it became self-sustaining, has shown an acute grasp of Kropotkin's "principle of shared understanding". This quasi-economic view of the Linux world enables us to see how that understanding is applied. + +We may view Linus's method as a way to create an efficient market in "egoboo"—to connect the selfishness of individual hackers as firmly as possible to difficult ends that can only be achieved by sustained cooperation. With the fetchmail project I have shown (albeit on a smaller scale) that his methods can be duplicated with good results. Perhaps I have even done it a bit more consciously and systematically than he. + +Many people (especially those who politically distrust free markets) would expect a culture of self-directed egoists to be fragmented, territorial, wasteful, secretive, and hostile. But this expectation is clearly falsified by (to give just one example) the stunning variety, quality, and depth of Linux documentation. It is a hallowed given that programmers hate documenting; how is it, then, that Linux hackers generate so much documentation? Evidently Linux's free market in egoboo works better to produce virtuous, other-directed behavior than the massively-funded documentation shops of commercial software producers. + +Both the fetchmail and Linux kernel projects show that by properly rewarding the egos of many other hackers, a strong developer/coordinator can use the Internet to capture the benefits of having lots of co-developers without having a project collapse into a chaotic mess. So to Brooks's Law I counter-propose the following: + +_1 19: Provided the development coordinator has a communications medium at least as good as the Internet, and knows how to lead without coercion, many heads are inevitably better than one. + +I think the future of open-source software will increasingly belong to people who know how to play Linus's game, people who leave behind the cathedral and embrace the bazaar. This is not to say that individual vision and brilliance will no longer matter; rather, I think that the cutting edge of open-source software will belong to people who start from individual vision and brilliance, then amplify it through the effective construction of voluntary communities of interest. + +Perhaps this is not only the future of open-source software. No closed-source developer can match the pool of talent the Linux community can bring to bear on a problem. Very few could afford even to hire the more than 200 (1999: 600, 2000: 800) people who have contributed to fetchmail! + +Perhaps in the end the open-source culture will triumph not because cooperation is morally right or software "hoarding" is morally wrong (assuming you believe the latter, which neither Linus nor I do), but simply because the closed-source world cannot win an evolutionary arms race with open-source communities that can put orders of magnitude more skilled time into a problem. + +1~ On Management and the Maginot Line + +The original Cathedral and Bazaar paper of 1997 ended with the vision above—that of happy networked hordes of programmer/anarchists outcompeting and overwhelming the hierarchical world of conventional closed software. + +A good many skeptics weren't convinced, however; and the questions they raise deserve a fair engagement. Most of the objections to the bazaar argument come down to the claim that its proponents have underestimated the productivity-multiplying effect of conventional management. + +Traditionally-minded software-development managers often object that the casualness with which project groups form and change and dissolve in the open-source world negates a significant part of the apparent advantage of numbers that the open-source community has over any single closed-source developer. They would observe that in software development it is really sustained effort over time and the degree to which customers can expect continuing investment in the product that matters, not just how many people have thrown a bone in the pot and left it to simmer. + +There is something to this argument, to be sure; in fact, I have developed the idea that expected future service value is the key to the economics of software production in the essay The Magic Cauldron. + +But this argument also has a major hidden problem; its implicit assumption that open-source development cannot deliver such sustained effort. In fact, there have been open-source projects that maintained a coherent direction and an effective maintainer community over quite long periods of time without the kinds of incentive structures or institutional controls that conventional management finds essential. The development of the GNU Emacs editor is an extreme and instructive example; it has absorbed the efforts of hundreds of contributors over 15 years into a unified architectural vision, despite high turnover and the fact that only one person (its author) has been continuously active during all that time. No closed-source editor has ever matched this longevity record. + +This suggests a reason for questioning the advantages of conventionally-managed software development that is independent of the rest of the arguments over cathedral vs. bazaar mode. If it's possible for GNU Emacs to express a consistent architectural vision over 15 years, or for an operating system like Linux to do the same over 8 years of rapidly changing hardware and platform technology; and if (as is indeed the case) there have been many well-architected open-source projects of more than 5 years duration -- then we are entitled to wonder what, if anything, the tremendous overhead of conventionally-managed development is actually buying us. + +Whatever it is certainly doesn't include reliable execution by deadline, or on budget, or to all features of the specification; it's a rare `managed' project that meets even one of these goals, let alone all three. It also does not appear to be ability to adapt to changes in technology and economic context during the project lifetime, either; the open-source community has proven far more effective on that score (as one can readily verify, for example, by comparing the 30-year history of the Internet with the short half-lives of proprietary networking technologies—or the cost of the 16-bit to 32-bit transition in Microsoft Windows with the nearly effortless upward migration of Linux during the same period, not only along the Intel line of development but to more than a dozen other hardware platforms, including the 64-bit Alpha as well). + +One thing many people think the traditional mode buys you is somebody to hold legally liable and potentially recover compensation from if the project goes wrong. But this is an illusion; most software licenses are written to disclaim even warranty of merchantability, let alone performance—and cases of successful recovery for software nonperformance are vanishingly rare. Even if they were common, feeling comforted by having somebody to sue would be missing the point. You didn't want to be in a lawsuit; you wanted working software. + +So what is all that management overhead buying? + +In order to understand that, we need to understand what software development managers believe they do. A woman I know who seems to be very good at this job says software project management has five functions: + +_* To define goals and keep everybody pointed in the same direction + +_* To monitor and make sure crucial details don't get skipped + +_* To motivate people to do boring but necessary drudgework + +_* To organize the deployment of people for best productivity + +_* To marshal resources needed to sustain the project + +Apparently worthy goals, all of these; but under the open-source model, and in its surrounding social context, they can begin to seem strangely irrelevant. We'll take them in reverse order. + +My friend reports that a lot of resource marshalling is basically defensive; once you have your people and machines and office space, you have to defend them from peer managers competing for the same resources, and from higher-ups trying to allocate the most efficient use of a limited pool. + +But open-source developers are volunteers, self-selected for both interest and ability to contribute to the projects they work on (and this remains generally true even when they are being paid a salary to hack open source.) The volunteer ethos tends to take care of the `attack' side of resource-marshalling automatically; people bring their own resources to the table. And there is little or no need for a manager to `play defense' in the conventional sense. + +Anyway, in a world of cheap PCs and fast Internet links, we find pretty consistently that the only really limiting resource is skilled attention. Open-source projects, when they founder, essentially never do so for want of machines or links or office space; they die only when the developers themselves lose interest. + +That being the case, it's doubly important that open-source hackers organize themselves for maximum productivity by self-selection—and the social milieu selects ruthlessly for competence. My friend, familiar with both the open-source world and large closed projects, believes that open source has been successful partly because its culture only accepts the most talented 5% or so of the programming population. She spends most of her time organizing the deployment of the other 95%, and has thus observed first-hand the well-known variance of a factor of one hundred in productivity between the most able programmers and the merely competent. + +The size of that variance has always raised an awkward question: would individual projects, and the field as a whole, be better off without more than 50% of the least able in it? Thoughtful managers have understood for a long time that if conventional software management's only function were to convert the least able from a net loss to a marginal win, the game might not be worth the candle. + +The success of the open-source community sharpens this question considerably, by providing hard evidence that it is often cheaper and more effective to recruit self-selected volunteers from the Internet than it is to manage buildings full of people who would rather be doing something else. + +Which brings us neatly to the question of motivation. An equivalent and often-heard way to state my friend's point is that traditional development management is a necessary compensation for poorly motivated programmers who would not otherwise turn out good work. + +This answer usually travels with a claim that the open-source community can only be relied on only to do work that is `sexy' or technically sweet; anything else will be left undone (or done only poorly) unless it's churned out by money-motivated cubicle peons with managers cracking whips over them. I address the psychological and social reasons for being skeptical of this claim in Homesteading the Noosphere. For present purposes, however, I think it's more interesting to point out the implications of accepting it as true. + +If the conventional, closed-source, heavily-managed style of software development is really defended only by a sort of Maginot Line of problems conducive to boredom, then it's going to remain viable in each individual application area for only so long as nobody finds those problems really interesting and nobody else finds any way to route around them. Because the moment there is open-source competition for a `boring' piece of software, customers are going to know that it was finally tackled by someone who chose that problem to solve because of a fascination with the problem itself—which, in software as in other kinds of creative work, is a far more effective motivator than money alone. + +Having a conventional management structure solely in order to motivate, then, is probably good tactics but bad strategy; a short-term win, but in the longer term a surer loss. + +So far, conventional development management looks like a bad bet now against open source on two points (resource marshalling, organization), and like it's living on borrowed time with respect to a third (motivation). And the poor beleaguered conventional manager is not going to get any succour from the monitoring issue; the strongest argument the open-source community has is that decentralized peer review trumps all the conventional methods for trying to ensure that details don't get slipped. + +Can we save defining goals as a justification for the overhead of conventional software project management? Perhaps; but to do so, we'll need good reason to believe that management committees and corporate roadmaps are more successful at defining worthy and widely shared goals than the project leaders and tribal elders who fill the analogous role in the open-source world. + +That is on the face of it a pretty hard case to make. And it's not so much the open-source side of the balance (the longevity of Emacs, or Linus Torvalds's ability to mobilize hordes of developers with talk of "world domination") that makes it tough. Rather, it's the demonstrated awfulness of conventional mechanisms for defining the goals of software projects. + +One of the best-known folk theorems of software engineering is that 60% to 75% of conventional software projects either are never completed or are rejected by their intended users. If that range is anywhere near true (and I've never met a manager of any experience who disputes it) then more projects than not are being aimed at goals that are either (a) not realistically attainable, or (b) just plain wrong. + +This, more than any other problem, is the reason that in today's software engineering world the very phrase "management committee" is likely to send chills down the hearer's spine—even (or perhaps especially) if the hearer is a manager. The days when only programmers griped about this pattern are long past; Dilbert cartoons hang over executives' desks now. + +Our reply, then, to the traditional software development manager, is simple—if the open-source community has really underestimated the value of conventional management, why do so many of you display contempt for your own process? + +Once again the example of the open-source community sharpens this question considerably—because we have fun doing what we do. Our creative play has been racking up technical, market-share, and mind-share successes at an astounding rate. We're proving not only that we can do better software, but that joy is an asset. + +Two and a half years after the first version of this essay, the most radical thought I can offer to close with is no longer a vision of an open-source–dominated software world; that, after all, looks plausible to a lot of sober people in suits these days. + +Rather, I want to suggest what may be a wider lesson about software, (and probably about every kind of creative or professional work). Human beings generally take pleasure in a task when it falls in a sort of optimal-challenge zone; not so easy as to be boring, not too hard to achieve. A happy programmer is one who is neither underutilized nor weighed down with ill-formulated goals and stressful process friction. Enjoyment predicts efficiency. + +Relating to your own work process with fear and loathing (even in the displaced, ironic way suggested by hanging up Dilbert cartoons) should therefore be regarded in itself as a sign that the process has failed. Joy, humor, and playfulness are indeed assets; it was not mainly for the alliteration that I wrote of "happy hordes" above, and it is no mere joke that the Linux mascot is a cuddly, neotenous penguin. + +It may well turn out that one of the most important effects of open source's success will be to teach us that play is the most economically efficient mode of creative work. + +1~ Epilog: Netscape Embraces the Bazaar + +It's a strange feeling to realize you're helping make history.... + +On January 22 1998, approximately seven months after I first published The Cathedral and the Bazaar, Netscape Communications, Inc. announced plans to give away the source for Netscape Communicator. I had had no clue this was going to happen before the day of the announcement. + +Eric Hahn, executive vice president and chief technology officer at Netscape, emailed me shortly afterwards as follows: "On behalf of everyone at Netscape, I want to thank you for helping us get to this point in the first place. Your thinking and writings were fundamental inspirations to our decision." + +The following week I flew out to Silicon Valley at Netscape's invitation for a day-long strategy conference (on 4 Feb 1998) with some of their top executives and technical people. We designed Netscape's source-release strategy and license together. + +A few days later I wrote the following: + +_1 Netscape is about to provide us with a large-scale, real-world test of the bazaar model in the commercial world. The open-source culture now faces a danger; if Netscape's execution doesn't work, the open-source concept may be so discredited that the commercial world won't touch it again for another decade. + +_1 On the other hand, this is also a spectacular opportunity. Initial reaction to the move on Wall Street and elsewhere has been cautiously positive. We're being given a chance to prove ourselves, too. If Netscape regains substantial market share through this move, it just may set off a long-overdue revolution in the software industry. + +_1 The next year should be a very instructive and interesting time. + +And indeed it was. As I write in mid-2000, the development of what was later named Mozilla has been only a qualified success. It achieved Netscape's original goal, which was to deny Microsoft a monopoly lock on the browser market. It has also achieved some dramatic successes (notably the release of the next-generation Gecko rendering engine). + +However, it has not yet garnered the massive development effort from outside Netscape that the Mozilla founders had originally hoped for. The problem here seems to be that for a long time the Mozilla distribution actually broke one of the basic rules of the bazaar model; it didn't ship with something potential contributors could easily run and see working. (Until more than a year after release, building Mozilla from source required a license for the proprietary Motif library.) + +Most negatively (from the point of view of the outside world) the Mozilla group didn't ship a production-quality browser for two and a half years after the project launch—and in 1999 one of the project's principals caused a bit of a sensation by resigning, complaining of poor management and missed opportunities. "Open source," he correctly observed, "is not magic pixie dust." + +And indeed it is not. The long-term prognosis for Mozilla looks dramatically better now (in November 2000) than it did at the time of Jamie Zawinski's resignation letter—in the last few weeks the nightly releases have finally passed the critical threshold to production usability. But Jamie was right to point out that going open will not necessarily save an existing project that suffers from ill-defined goals or spaghetti code or any of the software engineering's other chronic ills. Mozilla has managed to provide an example simultaneously of how open source can succeed and how it could fail. + +In the mean time, however, the open-source idea has scored successes and found backers elsewhere. Since the Netscape release we've seen a tremendous explosion of interest in the open-source development model, a trend both driven by and driving the continuing success of the Linux operating system. The trend Mozilla touched off is continuing at an accelerating rate. + +% Thyrsus Enterprises + +% http://www.catb.org/~esr/writings/cathedral-bazaar/ + +% This is version 3.0 + +% $Date: 2008/12/10 18:25:30 $ +% Revision History +% Revision 1.57 11 September 2000 esr +% New major section ``How Many Eyeballs Tame Complexity". +% Revision 1.52 28 August 2000 esr +% MATLAB is a reinforcing parallel to Emacs. Corbatoó & Vyssotsky got it in 1965. +% Revision 1.51 24 August 2000 esr +% First DocBook version. Minor updates to Fall 2000 on the time-sensitive material. +% Revision 1.49 5 May 2000 esr +% Added the HBS note on deadlines and scheduling. +% Revision 1.51 31 August 1999 esr +% This the version that O'Reilly printed in the first edition of the book. +% Revision 1.45 8 August 1999 esr +% Added the endnotes on the Snafu Principle, (pre)historical examples of bazaar development, and originality in the bazaar. +% Revision 1.44 29 July 1999 esr +% Added the ``On Management and the Maginot Line" section, some insights about the usefulness of bazaars for exploring design space, and substantially improved the Epilog. +% Revision 1.40 20 Nov 1998 esr +% Added a correction of Brooks based on the Halloween Documents. +% Revision 1.39 28 July 1998 esr +% I removed Paul Eggert's 'graph on GPL vs. bazaar in response to cogent aguments from RMS on +% Revision 1.31 February 10 1998 esr +% Added ``Epilog: Netscape Embraces the Bazaar!" +% Revision 1.29 February 9 1998 esr +% Changed ``free software" to ``open source". +% Revision 1.27 18 November 1997 esr +% Added the Perl Conference anecdote. +% Revision 1.20 7 July 1997 esr +% Added the bibliography. +% Revision 1.16 21 May 1997 esr + +% First official presentation at the Linux Kongress. + diff --git a/data/v3/samples/the_public_domain.james_boyle.sst b/data/v3/samples/the_public_domain.james_boyle.sst new file mode 100644 index 0000000..142de47 --- /dev/null +++ b/data/v3/samples/the_public_domain.james_boyle.sst @@ -0,0 +1,2042 @@ +% SiSU 2.0 + +@title: The Public Domain + :subtitle: Enclosing the Commons of the Mind + +@creator: + :author: Boyle, James + +@rights: + :copyright: 2008, James Boyle + :license: Creative Commons Attribution-Noncommercial-Share Alike (CC-BY-NC-SA) 3.0 http://creativecommons.org/licenses/by-nc-sa/3.0/ + +@classify: + :topic_register: public domain +% :subject: #___# +% :type: #___# +% :loc: #___# +% :oclc: #___# +% :isbn: #___# + +@date: + :published: 2008 + +@make: + :headings: none; none; none; none; + :num_top: 1 + :breaks: new=:C; break=1 + +@links: + {SiSU}http://www.jus.uio.no/sisu/SiSU + +:A~ @title @author + +1~ Acknowledgments + +The ideas for this book come from the theoretical and practical work I have been doing for the last ten years. None of that work has been done alone. As a result, the list of people to whom I am indebted makes Oscar night acknowledgments look haiku-terse by comparison. Here I can mention only a few. I beg pardon for the inevitable omissions. First and foremost, my family has tolerated my eccentricities and fixations and moderated them with gentle and deserved mockery. “Want that insignia torn off your car, Dad? Then it would be in the public domain, right?” + +My colleagues at Duke are one of the main influences on my work. I am lucky enough to work in the only “Center for the Study of the Public Domain” in the academic world. I owe the biggest debt of gratitude to my colleague Jennifer Jenkins, who directs the Center and who has influenced every chapter in this book. David Lange brought me to Duke. His work on the public domain has always been an inspiration to mine. Arti Rai’s remarkable theoretical and empirical studies have helped me to understand everything from software patents to synthetic biology. Jerry Reichman has supplied energy, insight, and a spirited and cosmopolitan focus on the multiple ways in which property can be protected. Jed Purdy and Neil Siegel commented on drafts and provided crucial insights on the construction of my argument. Catherine Fisk, Jim Salzman, Stuart Benjamin, Jonathan Wiener, Mitu Gulati, Jeff Powell, Chris Schroeder, and many, many others helped out—sometimes without knowing it, but often at the cost of the scarcest of all resources: time. Amidst a brilliant group of research assistants, Jordi Weinstock and David Silverstein stood out. Jordi showed a dogged ability to track down obscure 1950s songs that was almost scary. Additional thanks go to Jennifer Ma, Tolu Adewale, Paulina Orchard, and Emily Sauter. Balfour Smith, the coordinator of our Center, shepherded the manuscript through its many drafts with skill and erudition. + +Duke is the most interdisciplinary university I have ever encountered and so the obligations flow beyond the law school. Professor Anthony Kelley, a brilliant composer, not only educated me in composition and the history of musical borrowing but co-taught a class on musical borrowing that dramatically influenced Chapter 6. Colleagues in the business school—particularly Jim Anton, a great economic modeler and greater volleyball partner, and Wes Cohen, a leading empiricist—all left their marks. Dr. Robert Cook-Deegan, leader of Duke’s Center for Public Genomics, and my wife Lauren Dame, associate director of the Genome Ethics, Law and Policy Center, provided crucial support to my work with the sciences in general and synthetic biology in particular. I was also inspired and informed by colleagues and students in computer science, English, history, and political science. + +But the work I am describing here is—as the last chapter suggests—something that goes far beyond the boundaries of one institution. A large group of intellectual property scholars have influenced my ideas. Most importantly, Larry Lessig and Yochai Benkler have each given far more than they received from me in the “sharing economy” of scholarship. If the ideas I describe here have a future, it is because of the astounding leadership Larry has provided and the insights into “the wealth of networks” that Yochai brings. Jessica Litman, Pam Samuelson, Michael Carroll, Julie Cohen, Peggy Radin, Carol Rose, Rebecca Eisenberg, Mark Lemley, Terry Fisher, Justin Hughes, Neil Netanel, Wendy Gordon, David Nimmer, Tyler Ochoa, Tim Wu, and many others have all taught me things I needed to know. Jessica in particular caught and corrected (some of ) my many errors, while Pam encouraged me to think about the definition of the public domain in ways that have been vital to this book. Michael suggested valuable edits—though I did not always listen. Historical work by Carla Hesse, Martha Woodmansee, and Mark Rose has been central to my analysis, which also could not have existed but for work on the governance of the commons by Elinor Ostrom, Charlotte Hess, and Carol Rose. Kembrew McLeod and Siva Vaidhyanathan inspired my work on music and sampling. Peter Jaszi was named in my last book as the person who most influenced it. That influence remains. + +Beyond the academy, my main debt is to the board members and staff of Creative Commons, Science Commons, and ccLearn. Creative Commons, on whose board I am proud to have served, is the brainchild of Larry Lessig and Hal Abelson; Science Commons and ccLearn are divisions of Creative Commons that I helped to set up which concentrate on the sciences and on education, respectively. The practical experience of building a “creative commons” with private tools—of allowing creative collaboration with people you have never met—has shaped this book far beyond the chapter devoted to it. Hal Abelson, Michael Carroll, and Eric Saltzman were on the midwife team for the birth of those organizations and became close friends in the process. Since the entire Creative Commons staff has made it routine to do seven impossible things before breakfast, it is hard to single out any one individual—but without Glenn Brown at Creative Commons and John Wilbanks at Science Commons, neither organization would exist today. Jimmy Wales, founder of Wikipedia and another Creative Commons board member, also provided key insights. Finally, but for the leadership of Laurie Racine neither Creative Commons nor our Center at Duke would be where they are today, and thus many of the experiments I describe in this book would not have happened. + +The intellectual property bar is a fascinating, brilliant, and engagingly eccentric group of lawyers. I owe debts to many of its members. Whitney Broussard told me the dirty secrets of the music industry. Daphne Keller—a former student and later a colleague—helped in more ways than I can count. + +A number of scientists and computer scientists made me see things I otherwise would not have—Drew Endy and Randy Ruttenberg in synthetic biology, Nobel laureates Sir John Sulston and Harold Varmus in genomics and biology more generally, Paul Ginsparg in astrophysics, and Harlan Onsrud in geospatial data. Paul Uhlir’s work at the National Academy of Sciences introduced me to many of these issues. The work of Richard Stallman, the creator of the free software movement, remains an inspiration even though he profoundly disagrees with my nomenclature here—and with much else besides. + +Activists, civil rights lawyers, bloggers, and librarians have actually done much of the hard work of building the movement I describe at the end of this book. Jamie Love has touched, sparked, or masterminded almost every benign development I write about here, and novelist Cory Doctorow has either blogged it or influenced it. I have worked particularly closely with Manon Ress, Fred von Lohmann, Cindy Cohn, Jason Schultz, and Gigi Sohn. John Howkins and Gilberto Gil have provided considerable leadership internationally. But there are many, many others. The entire community of librarians deserves our thanks for standing up for free public access to knowledge for over two hundred years. Librarians are my heroes. They should be yours, too. + +Some of the work contained here has been published in other forms elsewhere. Portions of Chapters 2 and 3 appeared as “The Second Enclosure Movement and the Construction of the Public Domain”;~{James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” Law and Contemporary Problems 66 (Winter–Spring 2003): 33–74.}~ Chapter 7 shares little textually but much in terms of inspiration with an article I co-wrote for PLoS Biology with Arti Rai, “Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons.”~{Arti Rai and James Boyle, “Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons,” PLoS Biology 5 (2007): 389–393, available at http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050058&ct=1. }~ For several years now I have been a columnist for the Financial Times’s “New Economy Policy Forum.” Portions of Chapter 5 and Chapter 9 had their origins in columns written for that forum. Chapter 10 has its roots both in my article “A Politics of Intellectual Property: Environmentalism for the Net?”~{James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87–116, available at http://www.law.duke.edu/journals/cite.php?47+Duke+L.+J.+87. }~ and in the symposium, Cultural Environmentalism @ 10,~{“Cultural Environmentalism @ 10,” Law and Contemporary Problems 70 (Spring 2007): 1–210, available at http://www.law.duke.edu/ce10. }~ that Larry Lessig kindly organized for the tenth anniversary of that article. + +Finally, I need to thank the institutions who have supported this study. The Rockefeller Center in Bellagio provided an inspiring beginning. The Ford, Rockefeller, MacArthur, and Hewlett Foundations have generously supported my work, as have Duke Law School’s research grants and Bost Fellowships. My work on synthetic biology and the human genome was supported in part by a CEER grant from the National Human Genome Research Institute and the Department of Energy (P50 HG003391-02). In addition, my thanks go out to the anonymous donor whose generous donation allowed us to found the Center for the Study of the Public Domain, and to Bob Young and Laurie Racine, whose work made the Center possible. Yale University Press were supportive and critical in all the right places. I would like to thank them for agreeing to release this work under a Creative Commons license. What could be more appropriate to the book’s theme? + +I could go on and on. But I will not. This flurry of names and areas of knowledge signifies more than just the deep thanks of a dilettante. It signifies the emergence of an area of concern, the coming together of very different groups around a shared problem—an imbalance in the rules that define property in the information age. It is that problem, its history, philosophy, and politics that I try to sketch out in the pages ahead. + + + +1~ Preface: Comprised of at Least Jelly? + +Each person has a different breaking point. For one of my students it was United States Patent number 6,004,596 for a “Sealed Crustless Sandwich.” In the curiously mangled form of English that patent law produces, it was described this way: + +_1 A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter.~{U.S. Patent No. 6,004,596 (filed Dec. 21, 1999), available at http://patft.uspto.gov/netahtml/PTO/srchnum.htm (search “6,004,596”). As is required, the patent refers extensively to the “prior art”—in this case prior art in sealing sandwiches. It also refers to the classic scientific reference work “50 Great Sandwiches by Carole Handslip 81–84, 86, 95, 1994.” Is this patent ridiculous? Yes, clearly so. But not so ridiculous that its eventual owner, Smucker’s, refrained from sending out cease and desist letters to competing sandwich manufacturers, and, when one of those competitors successfully requested the Patent and Trademark Office to reexamine the patent, from appealing the resulting rejection all the way through the Board of Patent Appeals and Interferences to the Court of Appeals for the Federal Circuit. The judges there were less than sympathetic at oral argument. “Judge Arthur Gajarsa noted that his wife often squeezes together the sides of their child’s peanut butter and jelly sandwiches to keep the filling from oozing out. ‘I’m afraid she might be infringing on your patent!’ he said.” The court found that the PTO got it right the second time around and agreed with the Board of Patent Appeals in rejecting the patent. Portfolio Media, “Peanut Butter and Jelly Case Reaches Federal Circuit,” IPLaw360 (April 7, 2005), available at http://www.iplawbulletin.com. For the Board of Patent Appeals’s learned discussion of whether the patent was anticipated by such devices as the “Tartmaster,” complete with disputes over expert testimony on the subjects of cutting, crimping, and “leaking outwardly” and painstaking inquiries about what would seem obvious to a “person having ordinary skill in the art of sandwich making,” see http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd031754 and http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd031775. One could conclude from this case that the system works (eventually). Or one could ask who cares about silly patents like this—even if they are used in an attempt to undermine competition? The larger point, however, is that an initial process of examination that finds a crimped peanut butter and jelly sandwich is “novel and nonobvious” is hardly going to do better when more complex technologies are at stake. I take that point up in Chapter 2 with reference to Thomas Jefferson’s discussion of patents and in Chapter 7 on synthetic biology. For a more general discussion of the flaws of the patent system see Adam B. Jaffe and Josh Lerner, Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation, and Progress and What To Do About It (Princeton, N.J.: Princeton University Press, 2004).}~ + +“But why does this upset you?” I asked; “you’ve seen much worse than this.” And he had. There are patents on human genes, on auctions, on algorithms.~{These types of patents are discussed in Chapter 7.}~ The U.S. Olympic Committee has an expansive right akin to a trademark over the word “Olympic” and will not permit gay activists to hold a “Gay Olympic Games.” The Supreme Court sees no First Amendment problem with this.~{San Francisco Arts & Athletics, Inc., et al. v. United States Olympic Committee, 483 U.S. 522 (1987). See also James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 145–148.}~ Margaret Mitchell’s estate famously tried to use copyright to prevent Gone With the Wind from being told from a slave’s point of view.~{SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).}~ The copyright over the words you are now reading will not expire until seventy years after my death; the men die young in my family, but still you will allow me to hope that this might put it close to the year 2100. Congress periodically considers legislative proposals that would allow the ownership of facts.~{See Samuel E. Trosow, “Sui Generis Database Legislation: A Critical Analysis,” Yale Journal of Law & Technology 7 (2005): 534–642; Miriam Bitton, “Trends in Protection for Informational Works under Copyright Law during the 19th and 20th Centuries,” Michigan Telecommunications & Technology Law Review 13 (2006): 115–176.}~ The Digital Millennium Copyright Act gives content providers a whole array of legally protected digital fences to enclose their work.~{The Digital Millennium Copyright Act is discussed at length in Chapter 5. “Digital fences” include password protection, encryption, and forms of digital rights management.}~ In some cases it effectively removes the privilege of fair use. Each day brings some new Internet horror story about the excesses of intellectual property. Some of them are even true. The list goes on and on. (By the end of this book, I hope to have convinced you that this matters.) With all of this going on, this enclosure movement of the mind, this locking up of symbols and themes and facts and genes and ideas (and eventually people), why get excited about the patenting of a peanut butter and jelly sandwich? “I just thought that there were limits,” he said; “some things should be sacred.” + +This book is an attempt to tell the story of the battles over intellectual property, the range wars of the information age. I want to convince you that intellectual property is important, that it is something that any informed citizen needs to know a little about, in the same way that any informed citizen needs to know at least something about the environment, or civil rights, or the way the economy works. I will try my best to be fair, to explain the issues and give both sides of the argument. Still, you should know that this is more than mere description. In the pages that follow, I try to show that current intellectual property policy is overwhelmingly and tragically bad in ways that everyone, and not just lawyers or economists, should care about. We are making bad decisions that will have a negative effect on our culture, our kids’ schools, and our communications networks; on free speech, medicine, and scientific research. We are wasting some of the promise of the Internet, running the risk of ruining an amazing system of scientific innovation, carving out an intellectual property exemption to the First Amendment. I do not write this as an enemy of intellectual property, a dot-communist ready to end all property rights; in fact, I am a fan. It is precisely because I am a fan that I am so alarmed about the direction we are taking. + +Still, the message of this book is neither doom nor gloom. None of these decisions is irrevocable. The worst ones can still be avoided altogether, and there are powerful counterweights in both law and culture to the negative trends I describe here. There are lots of reasons for optimism. I will get to most of these later, but one bears mentioning now. Contrary to what everyone has told you, the subject of intellectual property is both accessible and interesting; what people can understand, they can change—or pressure their legislators to change. + +I stress this point because I want to challenge a kind of willed ignorance. Every news story refers to intellectual property as “arcane,” “technical,” or “abstruse” in the same way as they referred to former attorney general Alberto Gonzales as “controversial.” It is a verbal tic and it serves to reinforce the idea that this is something about which popular debate is impossible. But it is also wrong. The central issues of intellectual property are not technical, abstruse, or arcane. To be sure, the rules of intellectual property law can be as complex as a tax code (though they should not be). But at the heart of intellectual property law are a set of ideas that a ten-year-old can understand perfectly well. (While writing this book, I checked this on a ten-year-old I then happened to have around the house.) You do not need to be a scientist or an economist or a lawyer to understand it. The stuff is also a lot of fun to think about. I live in constant wonder that they pay me to do so. + +Should you be able to tell the story of Gone With the Wind from a slave’s point of view even if the author does not want you to? Should the Dallas Cowboys be able to stop the release of Debbie Does Dallas, a cheesy porno flick, in which the title character brings great dishonor to a uniform similar to that worn by the Dallas Cowboys Cheerleaders? (After all, the audience might end up associating the Dallas Cowboys Cheerleaders with . . . well, commodified sexuality.)~{Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. , 604 F.2d 200 (2nd Cir. 1979).}~ + +Should the U.S. Commerce Department be able to patent the genes of a Guyami Indian woman who shows an unusual resistance to leukemia?~{“In the forests of Panama lives a Guyami Indian woman who is unusually resistant to a virus that causes leukemia. She was discovered by scientific ‘gene hunters,’ engaged in seeking out native peoples whose lives and cultures are threatened with extinction. Though they provided basic medical care, the hunters did not set out to preserve the people, only their genes—which can be kept in cultures of ‘immortalized’ cells grown in the laboratory. In 1993, the U.S. Department of Commerce tried to patent the Guyami woman’s genes—and only abandoned the attempt in the face of furious protest from representatives of indigenous peoples.” Tom Wilkie, “Whose Gene Is It Anyway?” Independent (London, November 19, 1995), 75.}~ What would it mean to patent someone’s genes, anyway? Forbidding scientific research on the gene without the patent holder’s consent? Forbidding human reproduction? Can religions secure copyrights over their scriptures? Even the ones they claim to have been dictated by gods or aliens? Even if American copyright law requires “an author,” presumably a human one?~{See Christina Rhee, “Urantia Foundation v. Maaherra,” Berkeley Technology Law Journal 13 (1998): 69–81.}~ Can they use those copyrights to discipline heretics or critics who insist on quoting the scripture in full? + +Should anyone own the protocols—the agreed-upon common technical standards—that make the Internet possible? Does reading a Web page count as “copying” it?~{See James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard Journal of Law & Technology 10 (1996): 83–94.}~ Should that question depend on technical “facts” (for example, how long the page stays in your browser’s cache) or should it depend on some choice that we want to make about the extent of the copyright holder’s rights? + +These questions may be hard, because the underlying moral and political and economic issues need to be thought through. They may be weird; alien scriptural dictation might qualify there. They surely aren’t uninteresting, although I admit to a certain prejudice on that point. And some of them, like the design of our telecommunications networks, or the patenting of human genes, or the relationship between copyright and free speech, are not merely interesting, they are important. It seems like a bad idea to leave them to a few lawyers and lobbyists simply because you are told they are “technical.” + +So the first goal of the book is to introduce you to intellectual property, to explain why it matters, why it is the legal form of the information age. The second goal is to persuade you that our intellectual property policy is going the wrong way; two roads are diverging and we are on the one that doesn’t lead to Rome. + +The third goal is harder to explain. We have a simple word for, and an intuitive understanding of, the complex reality of “property.” Admittedly, lawyers think about property differently from the way lay-people do; this is only one of the strange mental changes that law school brings. But everyone in our society has a richly textured understanding of “mine” and “thine,” of rights of exclusion, of division of rights over the same property (for example, between tenant and landlord), of transfer of rights in part or in whole (for example, rental or sale). But what about the opposite of property—property’s antonym, property’s outside? What is it? Is it just stuff that is not worth owning—abandoned junk? Stuff that is not yet owned—such as a seashell on a public beach, about to be taken home? Or stuff that cannot be owned—a human being, for example? Or stuff that is collectively owned—would that be the radio spectrum or a public park? Or stuff that is owned by no one, such as the deep seabed or the moon? Property’s outside, whether it is “the public domain” or “the commons,” turns out to be harder to grasp than its inside. + +To the extent that we think about property’s outside, it tends to have a negative connotation; we want to get stuff out of the lost-and-found office and back into circulation as property. We talk of “the tragedy of the commons,”~{Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248.}~ meaning that unowned or collectively owned resources will be managed poorly; the common pasture will be overgrazed by the villagers’ sheep because no one has an incentive to hold back. + +When the subject is intellectual property, this gap in our knowledge turns out to be important because our intellectual property system depends on a balance between what is property and what is not. For a set of reasons that I will explain later, “the opposite of property” is a concept that is much more important when we come to the world of ideas, information, expression, and invention. We want a lot of material to be in the public domain, material that can be spread without property rights. “The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”~{International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting); Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354–446.}~ Our art, our culture, our science depend on this public domain every bit as much as they depend on intellectual property. The third goal of this book is to explore property’s outside, property’s various antonyms, and to show how we are undervaluing the public domain and the information commons at the very moment in history when we need them most. Academic articles and clever legal briefs cannot solve this problem alone. + +Instead, I argue that precisely because we are in the information age, we need a movement—akin to the environmental movement—to preserve the public domain. The explosion of industrial technologies that threatened the environment also taught us to recognize its value. The explosion of information technologies has precipitated an intellectual land grab; it must also teach us about both the existence and the value of the public domain. This enlightenment does not happen by itself. The environmentalists helped us to see the world differently, to see that there was such a thing as “the environment” rather than just my pond, your forest, his canal. We need to do the same thing in the information environment. + +We have to “invent” the public domain before we can save it. + +A word about style. I am trying to write about complicated issues, some of which have been neglected by academic scholarship, while others have been catalogued in detail. I want to advance the field, to piece together the story of the second enclosure movement, to tell you something new about the balance between property and its opposite. But I want to do so in a way that is readable. For those in my profession, being readable is a dangerous goal. You have never heard true condescension until you have heard academics pronounce the word “popularizer.” They say it as Isadora Duncan might have said “dowdy.” To be honest, I share their concern. All too often, clarity is achieved by leaving out the key qualification necessary to the argument, the sualso include a short guide to further reading. I have used citations sparingly, but more widely than an author of a popular book normally does, so that the scholarly audience can trace out my reasoning. But the core of the argument is in the text. + +The second balance I have struggled to hit is that between breadth and depth. The central thesis of the book is that the line between intellectual property and the public domain is important in every area of culture, science, and technology. As a result, it ranges widely in subject matter. Yet readers come with different backgrounds, interests, and bodies of knowledge. As a result, the structure of the book is designed to facilitate self-selection based on interest. The first three chapters and the conclusion provide the theoretical basis. Each chapter builds on those themes, but is also designed to be largely freestanding. The readers who thrill to the idea that there might be constitutional challenges to the regulation of digital speech by copyright law may wallow in those arguments to their hearts’ content. Others may quickly grasp the gist and head on for the story of how Ray Charles’s voice ended up in a mashup attacking President Bush, or the discussion of genetically engineered bacteria that take photographs and are themselves the subject of intellectual property rights. To those readers who nevertheless conclude that I have failed to balance correctly between precision and clarity, or breadth and depth, I offer my apologies. I fear you may be right. It was not for want of trying. + +1~ Chapter 1: Why Intellectual Property? + +Imagine yourself starting a society from scratch. Perhaps you fought a revolution, or perhaps you led a party of adventurers into some empty land, conveniently free of indigenous peoples. Now your task is to make the society work. You have a preference for democracy and liberty and you want a vibrant culture: a culture with a little chunk of everything, one that offers hundreds of ways to live and thousands of ideals of beauty. You don’t want everything to be high culture; you want beer and skittles and trashy delights as well as brilliant news reporting, avant-garde theater, and shocking sculpture. You can see a role for highbrow, state-supported media or publicly financed artworks, but your initial working assumption is that the final arbiter of culture should be the people who watch, read, and listen to it, and who remake it every day. And even if you are dubious about the way popular choice gets formed, you prefer it to some government funding body or coterie of art mavens. + +At the same time as you are developing your culture, you want a flourishing economy—and not just in literature or film. You want innovation and invention. You want drugs that cure terrible diseases, and designs for more fuel-efficient stoves, and useful little doodads, like mousetraps, or Post-it notes, or solar-powered backscratchers. To be exact, you want lots of innovation but you do not know exactly what innovation or even what types of innovation you want. + +Given scarce time and resources, should we try to improve typewriters or render them obsolete with word processors, or develop functional voice recognition software, or just concentrate on making solar-powered backscratchers? Who knew that they needed Post-it notes or surgical stents or specialized rice planters until those things were actually developed? How do you make priorities when the priorities include things you cannot rationally value because you do not have them yet? How do you decide what to fund and when to fund it, what desires to trade off against each other? + +The society you have founded normally relies on market signals to allocate resources. If a lot of people want petunias for their gardens, and are willing to pay handsomely for them, then some farmer who was formerly growing soybeans or gourds will devote a field to petunias instead. He will compete with the other petunia sellers to sell them to you. Voila! We do not need a state planner to consult the vegetable five-year plan and decree “Petunias for the People!” Instead, the decision about how to deploy society’s productive resources is being made “automatically,” cybernetically even, by rational individuals responding to price signals. And in a competitive market, you will get your petunias at very close to the cost of growing them and bringing them to market. Consumer desires are satisfied and productive resources are allocated efficiently. It’s a tour de force. + +Of course, there are problems. The market measures the value of a good by whether people have the ability and willingness to pay for it, so the whims of the rich may be more “valuable” than the needs of the destitute. We may spend more on pet psychiatry for the traumatized poodles on East 71st Street than on developing a cure for sleeping sickness, because the emotional wellbeing of the pets of the wealthy is “worth more” than the lives of the tropical world’s poor. But for a lot of products, in a lot of areas, the market works—and that is a fact not to be taken for granted. + +Why not use this mechanism to meet your cultural and innovation needs? If people need Madame Bovary or The New York Times or a new kind of antibiotic, surely the market will provide it? Apparently not. You have brought economists with you into your brave new world—perhaps out of nostalgia, or because a lot of packing got done at the last minute. The economists shake their heads.~{As the suggested further reading indicates, this light-hearted account of the economic basis of intellectual property conceals considerable complexity. On the other hand, the core argument is presented here—and a compelling argument it is.}~ The petunia farmer is selling something that is “a rivalrous good.” If I have the petunia, you can’t have it. What’s more, petunias are “excludable.” The farmer only gives you petunias when you pay for them. It is these factors that make the petunia market work. What about Madame Bovary, or the antibiotic, or The New York Times? Well, it depends. If books have to be copied out by hand, then Madame Bovary is just like the petunia. But if thousands of copies of Madame Bovary can be printed on a printing press, or photocopied, or downloaded from www.flaubertsparrot.com, then the book becomes something that is nonrival; once Madame Bovary is written, it can satisfy many readers with little additional effort or cost. Indeed, depending on the technologies of reproduction, it may be very hard to exclude people from Madame Bovary. + +Imagine a Napster for French literature; everyone could have Madame Bovary and only the first purchaser would have to pay for it. Because of these “nonrival” and “nonexcludable” characteristics, Flaubert’s publisher would have a more difficult time coming up with a business plan than the petunia farmer. The same is true for the drug company that invests millions in screening and testing various drug candidates and ends up with a new antibiotic that is both safe and effective, but which can be copied for pennies. Who will invest the money, knowing that any product can be undercut by copies that don’t have to pay the research costs? How are authors and publishers and drug manufacturers to make money? And if they can’t make money, how are we to induce people to be authors or to be the investors who put money into the publishing or pharmaceutical business? + +It is important to pause at this point and inquire how closely reality hews to the economic story of “nonexcludable” and “nonrival” public goods. It turns out that the reality is much more complex. First, there may be motivations for creation that do not depend on the market mechanism. People sometimes create because they seek fame, or out of altruism, or because an inherent creative force will not let them do otherwise. Where those motivations operate, we may not need a financial incentive to create. Thus the “problem” of cheap copying in fact becomes a virtue. Second, the same technologies that make copying cheaper may also lower the costs of advertising and distribution, cutting down on the need to finance expensive distribution chains. Third, even in situations that do require incentives for creativity and for distribution, it may be that being “first to market” with an innovation provides the innovator with enough of a head start on the competition to support the innovation.~{See Jack Hirshleifer, “The Private and Social Value of Information and the Reward to Inventive Activity,” American Economic Review 61 (1971): 561–574.}~ Fourth, while some aspects of the innovation may truly be nonrival, other aspects may not. Software is nonrival and hard to exclude people from, but it is easy to exclude your customers from the help line or technical support. The CD may be copied cheaply; the concert is easy to police. The innovator may even be advantaged by being able to trade on the likely effects of her innovation. If I know I have developed the digital camera, I may sell the conventional film company’s shares short. Guarantees of authenticity, quality, and ease of use may attract purchasers even if unauthorized copying is theoretically cheaper. + +In other words, the economic model of pure public goods will track our reality well in some areas and poorly in others—and the argument for state intervention to fix the problems of public goods will therefore wax and wane correspondingly. In the case of drug patents, for example, it is very strong. For lots of low-level business innovation, however, we believe that adequate incentives are provided by being first to market, and so we see no need to give monopoly power to the first business to come up with a new business plan—at least we did not until some disastrous patent law decisions discussed later in this book. Nor does a lowering of copying costs hurt every industry equally. Digital copies of music were a threat to the traditional music business, but digital copies of books? I am skeptical. This book will be freely and legally available online to all who wish to copy it. Both the publisher and I believe that this will increase rather than decrease sales. + +Ignore these inconvenient complicating factors for a moment. Assume that wherever things are cheap to copy and hard to exclude others from, we have a potential collapse of the market. That book, that drug, that film will simply not be produced in the first place—unless the state steps in somehow to change the equation. This is the standard argument for intellectual property rights. And a very good argument it is. In order to solve the potentially “market-breaking” problem of goods that are expensive to make and cheap to copy, we will use what my colleague Jerry Reichman calls the “market-making” device of intellectual property. The state will create a right to exclude others from the invention or the expression and confer it on the inventor or the author. The most familiar rights of this kind are copyrights and patents. (Trademarks present some special issues, which I will address a little later.) Having been given the ability to forbid people to copy your invention or your novel, you can make them pay for the privilege of getting access. You have been put back in the position of the petunia farmer. + +Pause for a moment and think of what a brilliant social innovation this is—at least potentially. Focus not on the incentives alone, but on the decentralization of information processing and decision making that a market offers. Instead of having ministries of art that define the appropriate culture to be produced this year, or turning the entire path of national innovation policy over to the government, intellectual property decentralizes the choices about what creative and innovative paths to pursue while retaining the possibility that people will actually get paid for their innovation and creative expression. + +The promise of copyright is this: if you are a radical environmentalist who wants to alert the world to the danger posed by climate change, or a passionate advocate of homeschooling, or a cartoonist with a uniquely twisted view of life, or a musician who can make a slack key guitar do very strange things, or a person who likes to take amazingly saccharine pictures of puppies and put them on greeting cards—maybe you can quit your day job and actually make a living from your expressive powers. If the market works, if the middlemen and distributors are smart enough, competitive enough, and willing to take a chance on expression that competes with their in-house talent, if you can make it somehow into the public consciousness, then you can be paid for allowing the world to copy, distribute, and perform your stuff. You risk your time and your effort and your passion and, if the market likes it, you will be rewarded. (At the very least, the giant producers of culture will be able to assemble vast teams of animators and musicians and software gurus and meld their labors into a videotape that will successfully anesthetize your children for two hours; no small accomplishment, let me tell you, and one for which people will certainly pay.) + +More importantly, if the system works, the choices about the content of our culture—the mix of earnest essays and saccharine greeting cards and scantily clad singers and poetic renditions of Norse myths—will be decentralized to the people who actually read, or listen to, or watch the stuff. This is our cultural policy and it is driven, in part, by copyright. + +The promise of patent is this: we have a multitude of human needs and a multitude of individuals and firms who might be able to satisfy those needs through innovation. Patent law offers us a decentralized system that, in principle, will allow individuals and firms to pick the problem that they wish to solve. Inventors and entrepreneurs can risk their time and their capital and, if they produce a solution that finds favor in the marketplace, will be able to reap the return provided by the legal right to exclude—by the legal monopoly over the resulting invention. The market hints at some unmet need—for drugs that might reduce obesity or cure multiple sclerosis, or for Post-it notes or windshield wipers that come on intermittently in light rain—and the innovator and her investors make a bet that they can meet that need. (Not all of these technologies will be patentable—only those that are novel and “nonobvious,” something that goes beyond what any skilled person in the relevant field would have done.) + +In return for the legal monopoly, patent holders must describe the technology well enough to allow anyone to replicate it once the patent term ends. Thus patent law allows us to avert two dangers: the danger that the innovation will languish because the inventor has no way to recover her investment of time and capital, and the danger that the inventor will turn to secrecy instead, hiding the details of her innovation behind black box technologies and restrictive contracts, so that society never gets the knowledge embedded in it. (This is a real danger. The medieval guilds often relied on secrecy to maintain the commercial advantage conveyed by their special skills, thus slowing progress down and sometimes simply stopping it. We still don’t know how they made Stradivarius violins sound so good. Patents, by contrast, keep the knowledge public, at least in theory;~{Unfortunately, the reality turns out to be less rosy. James Bessen, “Patents and the Diffusion of Technical Information,” Economics Letters 86 (2005): 122: “[S]urvey evidence suggests that firms do not place much value on the disclosed information. Moreover, those firms that do read patents do not use them primarily as a source of information on technology. Instead, they use them for other purposes, such as keeping track of competitors or checking for infringement. There are, in fact, sound theoretical reasons why the disclosed information may not be very valuable. [Fritz] Machlup and [Edith] Penrose report that the argument about diffusion is an old one, popular since the mid-19th century. They also point out that, at least through the 1950s, economists have been skeptical about this argument. The problem, also recognized in the mid-19th century, is that ‘only unconcealable inventions are patented,’ so patents reveal little that could not be otherwise learned. On the other hand, ‘concealable inventions remain concealed.’ ” [Citations omitted.]}~ you must describe it to own it.) And again, decisions about the direction of innovation have been largely, though not entirely, decentralized to the people who actually might use the products and services that result. This is our innovation policy and it is increasingly driven by patent. + +What about the legal protection of trademarks, the little words or symbols or product shapes that identify products for us? Why do we have trademark law, this “homestead law for the English language”?~{Felix S. Cohen, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 817.}~ Why not simply allow anyone to use any name or attractive symbol that they want on their products, even if someone else used it first? A trademark gives me a limited right to exclude other people from using my mark, or brand name, or product shape, just as copyright and patent law give me a limited right to exclude other people from my original expression or my novel invention. Why create such a right and back it with the force of law? + +According to the economists, the answer is that trademark law does two things. It saves consumers time. We have good reason to believe that a soap that says “Ivory” or a tub of ice cream that says “Häagen-Dazs” will be made by the same manufacturer that made the last batch of Ivory soap or Häagen-Dazs ice cream. If we liked the good before and we see the symbol again, we know what we are getting. I can work out what kind of soap, ice cream, or car I like, and then just look for the appropriate sign rather than investigating the product all over again each time I buy. That would be wasteful and economists hate waste. At the same time, trademarks fulfill a second function: they are supposed to give manufacturers an incentive to make good products—or at least to make products of consistent quality or price—to build up a good brand name and invest in consistency of its key features, knowing that no other firm can take their name or symbol. (Why produce a high-quality product, or a reliable cheap product, and build a big market share if a free rider could wait until people liked the product and then just produce an imitation with the same name but of lower quality?) The promise of trademark is that quality and commercial information flow regulate themselves, with rational consumers judging among goods of consistent quality produced by manufacturers with an interest in building up long-term reputation. + +So there we have the idealized vision of intellectual property. It is not merely supposed to produce incentives for innovation by rewarding creators, though that is vital. Intellectual property is also supposed to create a feedback mechanism that dictates the contours of information and innovation production. It is not an overstatement to say that intellectual property rights are designed to shape our information marketplace. Copyright law is supposed to give us a self-regulating cultural policy in which the right to exclude others from one’s original expression fuels a vibrant public sphere indirectly driven by popular demand. At its best, it is supposed to allow a decentralized and iconoclastic cultural ferment in which independent artists, musicians, and writers can take their unique visions, histories, poems, or songs to the world—and make a living doing so if their work finds favor. Patent law is supposed to give us a self-regulating innovation policy in which the right to exclude others from novel and useful inventions creates a cybernetic and responsive innovation marketplace. The allocation of social resources to particular types of innovation is driven by guesses about what the market wants. Trademark law is supposed to give us a self-regulating commercial information policy in which the right to exclude others from one’s trade name, symbol, or slogan produces a market for consumer information in which firms have incentives to establish quality brand names and consumers can rely on the meaning and the stability of the logos that surround them. Ivory soap will always mean Ivory soap and Coke will mean Coke, at least until the owners of those marks decide to change the nature of their products. + +Some readers will find my use of the term “intellectual property” mistaken and offensive. They will argue, and I agree, that the use of the term “property” can cause people mistakenly to conflate these rights with those to physical property. (I outline that process and its negative consequences in the next chapter.) They will argue, and again I agree, that there are big differences between the three fields I have described. Should we not just list the specific rights about which we are speaking—copyright, patent, or trademark? Both of these concerns are real and well-founded, but I respectfully disagree with the conclusion that we should give up the term “intellectual property.” + +First, as I have tried to show above, while there are considerable differences between the three fields I discussed, there is also a core similarity—the attempt to use a legally created privilege to solve a potential “public goods problem.” That similarity can enlighten as well as confuse. Yes, copyright looks very different from patent, just as a whale looks very different from a mouse. But we do not condemn the scientist who notes that they are both “mammals”—a socially constructed category—so long as he has a reason for focusing on that commonality. Second, the language of intellectual property exists. It has political reality in the world. Sometimes the language confuses and misleads. There are two possible reactions to such a reality. One can reject it and insist on a different and “purified” nomenclature, or one can attempt to point out the misperceptions and confusions using the very language in which they are embedded. I do not reject the first tactic. It can be useful. Here, though, I have embraced the second. + +I have provided the idealized story of intellectual property. But is it true? Did the law really develop that way? Does it work that way now? Does this story still apply in the world of the Internet and the Human Genome Project? If you believed the idealized story, would you know what kind of intellectual property laws to write? The answer to all of these questions is “not exactly.” + +Like most social institutions, intellectual property has an altogether messier and more interesting history than this sanitized version of its functioning would suggest. The precursors of copyright law served to force the identification of the author, so that he could be punished if he proved to be a heretic or a revolutionary. The Statute of Anne—the first true copyright statute—was produced partly because of publishers’ fights with booksellers; the authorial right grew as an afterthought.~{For contrasting views of the sequence of events, see John Feather, “Publishers and Politicians: The Remaking of the Law of Copyright in Britain 1775–1842,” pt. 2, “The Rights of Authors,” Publishing History 25 (1989): 45–72; Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993).}~ The history of patents includes a wealth of attempts to reward friends of the government and restrict or control dangerous technologies. Trademark law has shuttled uneasily between being a free-floating way to police competition so as to prohibit actions that courts thought were “unfair” and an absolute property right over an individual word or symbol. + +But does intellectual property work this way now, promoting the ideal of progress, a transparent marketplace, easy and cheap access to information, decentralized and iconoclastic cultural production, self-correcting innovation policy? Often it does, but distressingly often it does the reverse. The rights that were supposed to be limited in time and scope to the minimum monopoly necessary to ensure production become instead a kind of perpetual corporate welfare—restraining the next generation of creators instead of encouraging them. The system that was supposed to harness the genius of both the market and democracy sometimes subverts both. Worse, it does so inefficiently, locking up vast swaths of culture in order to confer a benefit on a tiny minority of works. But this is too abstract. A single instance from copyright law will serve as a concrete example of what is at stake here. Later in the book I will give other examples. + +2~ You’ll Get My Library of Congress When . . . + +Go to the Library of Congress catalogue. It is online at http://catalog.loc.gov/. This is an astounding repository of material—not just books and periodicals, but pictures, films, and music. The vast majority of this material, perhaps as much as 95 percent in the case of books, is commercially unavailable.~{Tim O’Reilly points out that there are 32 million titles in the Online Computer Library Center’s “WorldCat” catalogue—this is a reasonable proxy for the number of books in U.S. libraries. Nielsen’s Bookscan shows that 1.2 million books sold at least one copy in 2005. This yields a ratio of books commercially available to books ever published of about 4 percent. But of those 1.2 million books, many are in the public domain—think of Shakespeare, Dickens, Austen, Melville, Kipling. Thus the percentage of books that are under copyright and commercially available may actually be considerably lower than 4 percent. See http://radar.oreilly.com/archives/2005/11/oops_only_4_of_titles_are_bein.html. For a lucid account of the statistics in the context of the Google Book Search Project, see http://lessig.org/blog/2006/01/google_book_search_the_argumen.html. }~ The process happens comparatively quickly. Estimates suggest that a mere twentyeight years after publication 85 percent of the works are no longer being commercially produced. (We know that when U.S. copyright required renewal after twenty-eight years, about 85 percent of all copyright holders did not bother to renew. This is a reasonable, if rough, guide to commercial viability.)~{See Barbara Ringer, “Study Number 31: Renewal of Copyright,” reprinted in U.S. Senate Committee on the Judiciary, Subcommittee on Patents, Trademarks, and Copyrights, Copyright Law Revision, 86th Cong., 1st Sess., Committee Print (1960), 187. See also HR Rep. 94-1476 (1976), 136; William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.: Belknap Press, 2003), 210–212.}~ + +Yet because the copyright term is now so long, in many cases extending well over a century, most of twentieth-century culture is still under copyright—copyrighted but unavailable. Much of this, in other words, is lost culture. No one is reprinting the books, screening the films, or playing the songs. No one is allowed to. In fact, we may not even know who holds the copyright. Companies have gone out of business. Records are incomplete or absent. In some cases, it is even more complicated. A film, for example, might have one copyright over the sound track, another over the movie footage, and another over the script. You get the idea. These works—which are commercially unavailable and also have no identifiable copyright holder—are called “orphan works.” They make up a huge percentage of our great libraries’ holdings. For example, scholars estimate that the majority of our film holdings are orphan works.~{Details of the orphan works problem can be found in the proposals presented to the copyright office by the Center for the Study of the Public Domain; Orphan Works: Analysis and Proposal: Submission to the Copyright Office—March 2005, available at http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf, and Access to Orphan Films: Submission to the Copyright Office—March 2005, available at http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf. Two recent bills, in the Senate and House, respectively, attempt to address the orphan works problems. The Shawn Bentley Orphan Works Act of 2008, S 2913, 110th Cong. (2008), would add a new section to the Copyright Act limiting remedies for infringement of orphan works and requiring the establishment of a database of pictorial, graphic, and sculptural works. The House bill, The Orphan Works Act of 2008, HR 5889, 110th Cong. (2008), is similar but not identical. While these bills are a good start, the eventual remedy will need to be more sweeping.}~ For books, the estimates are similar. Not only are these works unavailable commercially, there is simply no way to find and contact the person who could agree to give permission to digitize the work or make it available in a new form. + +Take a conservative set of numbers. Subtract from our totals the works that are clearly in the public domain. In the United States, that is generally work produced before 1923. That material, at least, we can use freely. Subtract, too, the works that are still available from the copyright holder. There we can gain access if we are willing to pay. Yet this still leaves a huge proportion of twentieth- and twenty-first-century culture commercially unavailable but under copyright. In the case of books, the number is over 95 percent, as I said before; with films and music, it is harder to tell, but the percentages are still tragically high. A substantial proportion of that total is made up of orphan works. They cannot be reprinted or digitized even if we were willing to pay the owner to do so. And then comes the Internet. Right now, you can search for those books or films or songs and have the location of the work instantly displayed, as well as a few details about it. And if you live in Washington, D.C., or near some other great library, you can go to a reading room, and if the work can be found and has not been checked out, and has not deteriorated, you can read the books (though you probably will not be able to arrange to see the movies unless you are an accredited film scholar). + +I was searching the Library of Congress catalogue online one night, tracking down a seventy-year-old book about politics and markets, when my son came in to watch me. He was about eight years old at the time but already a child of the Internet age. He asked what I was doing and I explained that I was printing out the details of the book so that I could try to find it in my own university library. “Why don’t you read it online?” he said, reaching over my shoulder and double-clicking on the title, frowning when that merely led to another information page: “How do you get to read the actual book?” I smiled at the assumption that all the works of literature were not merely in the Library of Congress, but actually on the Net: available to anyone with an Internet connection anywhere in the world—so that you could not merely search for, but also read or print, some large slice of the Library’s holdings. Imagine what that would be like. Imagine the little underlined blue hyperlink from each title—to my son it made perfect sense. The book’s title was in the catalogue. When you clicked the link, surely you would get to read it. That is what happened in his experience when one clicked a link. Why not here? It was an old book, after all, no longer in print. Imagine being able to read the books, hear the music, or watch the films—or at least the ones that the Library of Congress thought it worthwhile to digitize. Of course, that is ridiculous. + +I tried to explain this to my son. I showed him that there were some works that could be seen online. I took him to the online photograph library, meaning to show him the wealth of amazing historical photographs. Instead, I found myself brooding over the lengthy listing of legal restrictions on the images and the explanation that reproduction of protected items may require the written permission of the copyright owners and that, in many cases, only indistinct and tiny thumbnail images are displayed to those searching from outside the Library of Congress “because of potential rights considerations.” The same was true of the scratchy folk songs from the twenties or the early film holdings. The material was in the Library, of course—remarkable collections in some cases, carefully preserved, and sometimes even digitized at public expense. Yet only a tiny fraction of it is available online. (There is a fascinating set of Edison’s early films, for example.) + +Most of the material available online comes from so long ago that the copyright could not possibly still be in force. But since copyright lasts for seventy years after the death of the author (or ninety-five years if it was a corporate “work for hire”), that could be a very, very long time indeed. Long enough, in fact, to keep off limits almost the whole history of moving pictures and the entire history of recorded music. Long enough to lock up almost all of twentieth-century culture. + +But is that not what copyright is supposed to do? To grant the right to restrict access, so as to allow authors to charge for the privilege of obtaining it? Yes, indeed. And this is a very good idea. But as I argue in this book, the goal of the system ought to be to give the monopoly only for as long as necessary to provide an incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money they are going to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a-million perennial favorite. The one-in-a-million lottery winner will benefit, of course, if his ticket comes up. And if the ticket is “free,” who would not take it? But the ticket is not free to the public. They pay higher prices for the works still being commercially exploited and, frequently, the price of complete unavailability for the works that are not. + +Think of a one-in-a-million perennial favorite—Harry Potter, say. Long after J. K. Rowling is dust, we will all be forbidden from making derivative works, or publishing cheap editions or large-type versions, or simply reproducing it for pleasure. I am a great admirer of Ms. Rowling’s work, but my guess is that little extra incentive was provided by the thought that her copyright will endure seventy rather than merely fifty years after her death. Some large costs are being imposed here, for a small benefit. And the costs fall even more heavily on all the other works, which are available nowhere but in some moldering library stacks. To put it another way, if copyright owners had to purchase each additional five years of term separately, the same way we buy warranties on our appliances, the economically rational ones would mainly settle for a fairly short period. + +Of course, there are some works that are still being exploited commercially long after their publication date. Obviously the owners of these works would not want them freely available online. This seems reasonable enough, though even with those works the copyright should expire eventually. But remember, in the Library of Congress’s vast, wonderful pudding of songs and pictures and films and books and magazines and newspapers, there is perhaps a handful of raisins’ worth of works that anyone is making any money from, and the vast majority of those come from the last ten years. If one goes back twenty years, perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to the whole pudding in order to give the owners of the raisin slivers their due. But this pudding is almost all of twentieth-century culture, and we are restricting access to it when almost of all of it could be available. + +If you do not know much about copyright, you might think that I am exaggerating. After all, if no one has any financial interest in the works or we do not even know who owns the copyright, surely a library would be free to put those works online? Doesn’t “no harm, no foul” apply in the world of copyright? In a word, no. Copyright is what lawyers call a “strict liability” system. This means that it is generally not a legal excuse to say that you did not believe you were violating copyright, or that you did so by accident, or in the belief that no one would care, and that your actions benefited the public. Innocence and mistake do not absolve you, though they might reduce the penalties imposed. Since it is so difficult to know exactly who owns the copyright (or copyrights) on a work, many libraries simply will not reproduce the material or make it available online until they can be sure the copyright has expired—which may mean waiting for over a century. They cannot afford to take the risk. + +What is wrong with this picture? Copyright has done its job and encouraged the creation of the work. But now it acts as a fence, keeping us out and restricting access to the work to those who have the time and resources to trudge through the stacks of the nation’s archives. In some cases, as with film, it may simply make the work completely unavailable. + +So far I have been talking as though copyright were the only reason the material is not freely available online. But of course, this is not true. Digitizing costs money (though less every year) and there is a lot of rubbish out there, stuff no one would ever want to make available digitally (though it must be noted that one man’s rubbish is another man’s delight). But that still leaves vast amounts of material that we would want, and be willing to pay, to have digitized. Remember also that if the material were legally free, anyone could get in on the act of digitizing it and putting it up. Google’s much-heralded effort to scan the books in major libraries is just the kind of thing I mean. But Google is being sued for violating copyright—even though it allows any author to “opt out” of its system, and even though under the Google system you cannot click to get the book if it is still under copyright, merely a snippet a few sentences long from the book. + +If you are shaking your head as you read this, saying that no one would bother digitizing most of the material in the archives, look at the Internet and ask yourself where the information came from the last time you did a search. Was it an official and prestigious institution? A university or a museum or a government? Sometimes those are our sources of information, of course. But do you not find the majority of the information you need by wandering off into a strange click-trail of sites, amateur and professional, commercial and not, hobbyist and entrepreneur, all self-organized by internal referrals and search engine algorithms? Even if Google did not undertake the task of digitization, there would be hundreds, thousands, maybe millions of others who would—not with Google’s resources, to be sure. In the process, they would create something quite remarkable. + +The most satisfying proofs are existence proofs. A platypus is an existence proof that mammals can lay eggs. The Internet is an existence proof of the remarkable information processing power of a decentralized network of hobbyists, amateurs, universities, businesses, volunteer groups, professionals, and retired experts and who knows what else. It is a network that produces useful information and services. Frequently, it does so at no cost to the user and without anyone guiding it. Imagine that energy, that decentralized and idiosyncratically dispersed pattern of interests, turned loose on the cultural artifacts of the twentieth century. Then imagine it coupled to the efforts of the great state archives and private museums who themselves would be free to do the same thing. Think of the people who would work on Buster Keaton, or the literary classics of the 1930s, or the films of the Second World War, or footage on the daily lives of African-Americans during segregation, or the music of the Great Depression, or theremin recordings, or the best of vaudeville. Imagine your Google search in such a world. Imagine that Library of Congress. One science fiction writer has taken a stab. His character utters the immortal line, “Man, you’ll get my Library of Congress when you pry my cold dead fingers off it!”~{Bruce Sterling, Heavy Weather (New York: Bantam, 1994): 73.}~ + +Familiar with the effect of this kind of train of thought on his father, my son had long since wandered off in search of a basketball game to watch. But I have to admit his question was something of an epiphany for me: Where do you click to get the actual book? + +The response I get from a lot of people is that this vision of the Library of Congress is communism, pure and simple. Such people view Google’s attempt to digitize books as simple theft. Surely it will destroy the incentives necessary to produce the next beach novel, the next academic monograph, the next teen band CD, the next hundred-million-dollar movie? But this mistakes my suggestion. Imagine a very conservative system. First, let us make people demonstrate that they want a copyright, by the arduous step of actually writing the word copyright or the little © on the work. (At the moment, everyone gets a copyright as soon as the work is written down or otherwise fixed, whether they want one or not.) But how long a copyright? We know that the majority of works are only valuable for five or ten years. Let us give copyright owners more than double that, say twenty-eight years of exclusive rights. If prior experience is any guide, 85 percent of works will be allowed to enter the public domain after that period. If that isn’t generous enough, let us say that the small proportion of owners who still find value in their copyright at the end of twenty-eight years can extend their copyright for another twenty-eight years. Works that are not renewed fall immediately into the public domain. If you check the register after twenty-eight years and the work has not been renewed, it is in the public domain. Works that are renewed get the extra time. + +Now this is a conservative suggestion, too conservative in my view, though still better than what we have now. Is it feasible? It would be hard to argue that it is not. This pretty much was the law in the United States until 1978. (My system is a little simpler, but the broad strokes are the same.) Since that point, in two broad stages, we have moved away from this system at the very moment in history when the Internet made it a particularly stupid idea to do so. + +How have we changed the system? We have given copyrights to the creator of any original work as soon as it is fixed, so that you, reader, are the author of thousands of copyrighted works. Almost everything up on the Internet is copyrighted, even if its creators do not know that and would prefer it to be in the public domain. Imagine that you want to make a documentary and use a film clip that a student filmmaker has put up on his home page. Perhaps you want to adapt the nifty graphics that a high school teacher in Hawaii created to teach her calculus class, thinking that, with a few changes, you could use the material for your state’s K-12 physics program. Perhaps you are a collage artist who wishes to incorporate images that amateur artists have put online. None of the works are marked by a copyright symbol. Certainly they are up on the Internet, but does that mean that they are available for reprinting, adaptation, or incorporation in a new work? + +In each of these cases, you simply do not know whether what you are doing is legal or not. Of course, you can take the risk, though that becomes less advisable if you want to share your work with others. Each broadening of the circle of sharing increases the value to society but also the legal danger to you. What if you want to put the course materials on the Net, or publish the anthology, or display the movie? Perhaps you can try to persuade your publisher or employer or distributor to take the risk. Perhaps you can track down the authors of every piece you wish to use and puzzle through the way to get a legal release from them stating that they give you permission to use the work they did not even know they had copyright over. Or you can give up. Whatever happens, you waste time and effort in trying to figure out a way of getting around a system that is designed around neither your needs nor the needs of many of the people whose work you want to use. + +Apart from doing away with the need to indicate that you want your works to be copyrighted, we have lengthened the copyright term. We did this without any credible evidence that it was necessary to encourage innovation. We have extended the terms of living and even of dead authors over works that have already been created. (It is hard to argue that this was a necessary incentive, what with the works already existing and the authors often being dead.) We have done away with the need to renew the right. Everyone gets the term of life plus seventy years, or ninety-five years for corporate “works for hire.” All protected by a “strict liability” system with scary penalties. And, as I said before, we have made all those choices just when the Internet makes their costs particularly tragic. + +In sum, we have forgone the Library of Congress I described without even apparently realizing we were doing so. We have locked up most of twentieth-century culture and done it in a particularly inefficient and senseless way, creating vast costs in order to convey proportionally tiny benefits. (And all without much complaint from those who normally object to inefficient government subsidy programs.) Worst of all, we have turned the system on its head. Copyright, intended to be the servant of creativity, a means of promoting access to information, is becoming an obstacle to both. + +That, then, is one example of the stakes of the debate over intellectual property policy. Unfortunately, the problem of copyright terms is just one example, one instance of a larger pattern. As I will try to show, this pattern is repeated again and again in patents, in trademarks, and elsewhere in copyright law. This is not an isolated “glitch.” It is a complicated but relentless tendency that has led to a hypertrophy of intellectual property rights and an assault on the public domain. In fact, in many cases, the reality is even worse: there appears to be a complete ignorance about the value of the public domain. Property’s opposite, its outside, is getting short shrift. + +To paraphrase a song from my youth, “how did we get here?” Where should we turn to understand the role of intellectual property in the era of the Internet and the decoding of the human genome? We could turn to the cutting edge of technology or to economics or information theory. But none of those would be as useful a starting place as a letter that was written about two hundred years ago, using a high-tech quill pen, about a subject far from the digital world. + +2~ Chapter 1: Further Reading + +This chapter argues that at least one goal we have in an intellectual property system is the attempt to solve various “public goods problems.” (Subsequent chapters defend that view historically and normatively, discuss the ideas of moral right and natural right, the tradition of the droits d’auteur, and the similarities and dissimilarities between the arguments for tangible and intellectual property rights. Further reading on those issues can be found in the relevant chapter.) + +The single best starting point for someone who wishes to understand an economic perspective on intellectual property is William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.: Belknap Press, 2003). The story laid out in this chapter is one largely (but not entirely) focused on the idea of intellectual property rights offered as incentives—the carrot that induces the author to write, the inventor to research, the investor to fund that research, and the corporation to develop attractive and stable brand names that convey reliable information to consumers. This is conventionally known as the ex ante perspective. But as the chapter also hints, intellectual property rights, like property rights in general, have a role after the innovation has occurred—facilitating its efficient exploitation, allowing inventors to disclose their inventions to prospective licensees without thereby losing control of them, and providing a state-constructed, neatly tied bundle of entitlements that can be efficiently traded in the market. Readers interested in these perspectives will benefit from looking at these articles: Edmund Kitch, “The Nature and Function of the Patent System,” Journal of Law and Economics 20 (1977): 265–290; Paul J. Heald, “A Transaction Costs Theory of Patent Law,” Ohio State Law Journal 66 (2005): 473–509; and Robert Merges, “A Transactional View of Property Rights,” Berkeley Technology Law Journal 20 (2005): 1477–1520. Of course, just as the incentives account of intellectual property has its skeptics, so these ex post theories attract skepticism from those who believe that, in practice, the rights will not be clear and well-delineated but vague and potentially overlapping, that the licensing markets will find themselves entangled in “patent thickets” from which the participants can escape only at great cost or by ignoring the law altogether. It is worth comparing Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998): 698–701, with John Walsh, Ashish Arora, and Wesley Cohen, “Effects of Research Tool Patents and Licensing on Biomedical Innovation,” in Patents in the Knowledge-Based Economy (Washington D.C.: National Academies Press, 2003), 285–340. There is a nice irony to imagining that the necessary mechanism of the efficient market is “ignore the property rights when they are inconvenient.” + +The skeptics argue that the alternative to a deeply commodified world of invention and innovation, with hundreds of thousands of licensing markets, is a rich information and innovation commons, from which all can draw freely, supporting a thin and well-defined layer of intellectual property rights close to the ultimate commercially viable innovation. The rhetorical structure of the debate—replete with paradox and inversion—is laid out in James Boyle, “Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property,” Vanderbilt Law Review 53 (2000): 2007–2039. For some of the difficulties in the attempt to arrive at a coherent economic theory of intellectual property, see James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 35–46. Finally, while I urge that at the outset we must care about the actual effects and economic incentives provided by intellectual property rights, I am by no means asserting that we should stop there. Indeed to do so would dramatically impoverish our view of the world. James Boyle, “Enclosing the Genome: What Squabbles over Genetic Patents Could Teach Us,” in Perspectives on Properties of the Human Genome Project, ed. F. Scott Kieff (San Diego, Calif.: Elsevier Academic Press, 2003), 97, 107–109. + +In other words, as all this suggests, this chapter is only an introduction to a rich and complex debate. + +1~ Chapter 2: Thomas Jefferson Writes a Letter + +On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.~{Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Association of the United States, 1907), vol. XIII, 326–338 (hereinafter Letter to McPherson), available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html (follow “May 1, 1812” hyperlink, then navigate to image 1057).}~ It was a quiet week in Jefferson’s correspondence. He wrote a letter to Madison about the appointment of a tax assessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new “Rudiments of English Grammar,” discussed the orthography of nouns ending in “y,” accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.~{For example, attempting to procure a former stable master a position (letter from Thomas Jefferson to Samuel H. Smith [August 15, 1813], available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow “May 1, 1812” hyperlink, then navigate to image 1070]), comments on “Rudiments of English Grammar” (letter from Thomas Jefferson to John Waldo [August 16, 1813], in Writings of Thomas Jefferson, vol. XIII, 338–347), orthography of the plurals of nouns ending in “y” (letter from Thomas Jefferson to John Wilson [August 17, 1813], Writings of Thomas Jefferson, vol. XIII, 347–348), accepting the necessary delay in the publication of a study on the anatomy of mammoth bones (letter from Thomas Jefferson to Caspar Wistar [August 17, 1813], available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow “May 1, 1812” hyperlink, then navigate to image 1095]), and discussing the Lewis biography (excerpt of a letter from Thomas Jefferson to Paul Allen [August 18, 1813], Letters of the Lewis and Clark Expedition with Related Documents 1783–1854, ed. Donald Jackson (Urbana: University of Illinois Press, 1962), 586).
It is easy, in fact, reading this prodigious outpouring of knowledge and enthusiasm, to forget the other side of Jefferson and the social system that gave him the leisure to write these letters. Just a few weeks before he wrote to McPherson, he wrote a letter to Jeremiah Goodman about a slave called Hercules who had been imprisoned as a runaway.
“The folly he has committed certainly justifies further punishment, and he goes in expectation of receiving it. . . .” Letter from Thomas Jefferson to Jeremiah A. Goodman (July 26, 1813), in Thomas Jefferson’s Farm Book, ed. Edwin Morris Betts (Charlottesville, Va.: American Philosophical Society, 1999), 36. While leaving the matter up to Goodman, Jefferson argues for leniency and for refraining from further punishment. In that sense, it is a humane letter. But this is one of the authors of the Declaration of Independence, full of glorious principles—unalienable rights; life, liberty, and the pursuit of happiness—enunciated in the context of indignation at relatively mild colonial policies of taxation and legislation. How could a man who thought that taxing tea was tyranny, and that all men had an unalienable right to liberty, believe that it was “folly” justifying “further punishment” for a slave to run away? Reading the letter—a curiously intimate, almost voyeuristic act—one finds oneself saying “What was he thinking?”}~ But on the 13th of August, Jefferson’s mind was on intellectual property, and most specifically, patents. + +Jefferson’s writing is, as usual, apparently effortless. Some find his penmanship a little hard to decipher. To me, used to plowing through the frenzied chicken tracks that law students produce during exams, it seems perfectly clear. If handwriting truly showed the architecture of the soul, then Jefferson’s would conjure up Monticello or the University of Virginia. There are a few revisions and interlineations, a couple of words squeezed in with a caret at the bottom of the line, but for the most part the lines of handwriting simply roll on and on—“the fugitive fermentation of an individual brain,”~{Letter to McPherson, 333.}~ to quote a phrase from the letter, caught in vellum and ink, though that brain has been dust for more than a century and a half. I love libraries. I love the mushroom smell of gently rotting paper, the flaky crackle of manuscripts, and the surprise of matching style of handwriting with style of thought. Today, though, I am viewing his letter over the Internet on a computer screen. (You can too. The details are [in the footnotes].) + +I think Jefferson would have been fascinated by the Internet. After all, this was the man whose library became the Library of Congress,~{See Letter from Thomas Jefferson to Abraham Baldwin (April 14, 1802), in Writings of Thomas Jefferson, vol. XIX, 128–129.}~ who exemplifies the notion of the brilliant dabbler in a hundred fields, whose own book collection was clearly a vital and much consulted part of his daily existence, and whose vision of politics celebrates the power of an informed citizenry. Admittedly, the massive conflicts between Jefferson’s announced principles and his actions on the issue of slavery have led some, though not me, to doubt that there is any sincerity or moral instruction to be found in his words.~{See Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (Armonk, N.Y.: M. E. Sharpe, 2001), ix; Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University Press of Virginia, 1997) 1, 40–43, 60–61, 222.}~ But even those who find him a sham can hardly fail to see the continual and obvious joy he felt about knowledge and its spread. + +In the letter to Isaac McPherson, a letter that has become very famous in the world of the digerati,~{Letter to McPherson, 336, quoted in John Perry Barlow, “Economy of Ideas,” Wired (March 1994): 84. For a careful scholarly explanation of the antimonopolist origins of eighteenth-century ideas such as Jefferson’s, see Tyler T. Ochoa and Mark Rose, “The Anti-Monopoly Origins of the Patent and Copyright Clause,” Journal of the Copyright Society of the U.S.A. 49 (2002): 675–706. One scholar has offered a thoughtful critique that suggests Jefferson’s views were not, in fact, representative either of the times or of the attitudes of the other framers toward intellectual property. See Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1012.}~ this joy becomes manifest. The initial subject of the correspondence seems far from the online world. McPherson wrote to Jefferson about “elevators, conveyers and Hopper-boys.” Specifically, he wanted to know Jefferson’s opinion of a patent that had been issued to Mr. Oliver Evans. Jefferson devotes a paragraph to a recent retrospective extension of patent rights (he disapproves) and then turns to Evans’s elevators. + +Patents then, as now, were only supposed to be given for inventions that were novel, nonobvious, and useful. Jefferson had considerable doubt whether Evans’s device, essentially a revolving string of buckets used to move grain, actually counted as “an invention.” “The question then whether such a string of buckets was invented first by Oliver Evans, is a mere question of fact in mathematical history. Now, turning to such books only as I happen to possess, I find abundant proof that this simple machinery has been in use from time immemorial.” Jefferson cites from his library example after example of references to the “Persian wheel”—a string of buckets to move water. The display of scholarship is effortless and without artifice. If the device existed to move water, he declares, Mr. Evans can hardly patent it to move grain. “If one person invents a knife convenient for pointing our pens, another cannot have a patent right for the same knife to point our pencils. A compass was invented for navigating the sea; another could not have a patent right for using it to survey land.”~{Letter to McPherson, 328.}~ + +So far as we can tell, this was the only part of the letter that interested McPherson. Later correspondence indicates that he had a pamphlet printed questioning the patent.~{Letter from Thomas Jefferson to Dr. Thomas Cooper (February 10, 1814), in Thomas Jefferson, Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 1321.}~ But while it is impressive to see Jefferson’s easy command of historical evidence or his grasp of the importance of limiting the subject matter, scope, and duration of patents, these qualities alone would not have given the letter the fame it now has. It is when Jefferson turns to the idea of intellectual property itself that the letter becomes more than a historical curiosity. In a couple of pages, quickly jotted down on a humid August day in 1813, he frames the issue as well as anyone has since. + +He starts by dismissing the idea “that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs.” In lines that will sound strange to those who assume that the framers of the Constitution were property absolutists, Jefferson argues that “stable ownership” of even tangible property is “a gift of social law.” Intellectual property, then, has still less of a claim to some permanent, absolute, and natural status. + +_1 [W]hile it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.~{Letter to McPherson, 333.}~ + +Jefferson’s point here may seem obscure to us. We are not used to starting every argument from first principles. But it is in fact quite simple. It is society that creates property rights that go beyond mere occupancy. It does so for several reasons—reasons of both practicality and natural justice. (Elsewhere in his writings, Jefferson expands on this point at greater length.) One of those reasons has to do with the difficulty, perhaps even the impossibility, of two different people having full and unfettered ownership of the same piece of property simultaneously. Another linked reason comes from the practicality of excluding others from our property, so that we can exploit it secure from the plunder or sloth of others. The economists you encountered in Chapter 1 have, with their usual linguistic felicity, coined the terms “rivalrous” and “excludable” to describe these characteristics. + +With rivalrous property, one person’s use precludes another’s. If I drink the milk, you cannot. Excludable property is, logically enough, property from which others can easily be excluded or kept out. But ideas seem to have neither of these characteristics. + +_1 If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possess the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.~{Ibid., 333–334.}~ + +Those who quote the passage sometimes stop here, which is a shame, because it leaves the impression that Jefferson was unequivocally against intellectual property rights. But that would be a considerable overstatement. When he says that inventions can never be the subject of property, he means a permanent and exclusive property right which, as a matter of natural right, no just government could abridge. However, inventions could be covered by temporary state-created monopolies instituted for the common good. In the lines immediately following the popularly quoted excerpt, Jefferson goes on: + +_1 Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.~{Ibid.}~ + +Jefferson’s message was a skeptical recognition that intellectual property rights might be necessary, a careful explanation that they should not be treated as natural rights, and a warning of the monopolistic dangers that they pose. He immediately goes on to say something else, something that is, if anything, more true in the world of patents on Internet business methods and gene sequences than it was in the world of “conveyers and Hopper-boys.” + +_1 Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.~{Ibid., 335.}~ + +So Jefferson gives us a classic set of cautions, cautions that we should be required to repeat, as police officers repeat the Miranda Warning to a suspect. In this case, they should be repeated before we rush off into the world of intellectual property policy rather than before we talk to the police without our lawyers present. + +2~ The Jefferson Warning + +Like the Miranda Warning, the Jefferson Warning has a number of important parts. + +_* First, the stuff we cover with intellectual property rights has certain vital differences from the stuff we cover with tangible property rights. Partly because of those differences, Jefferson, like most of his successors in the United States, does not see intellectual property as a claim of natural right based on expended labor. Instead it is a temporary state-created monopoly given to encourage further innovation. + +_* Second, there is no “entitlement” to have an intellectual property right. Such rights may or may not be given as a matter of social “will and convenience” without “claim or complaint from any body.” + +_* Third, intellectual property rights are not and should not be permanent; in fact they should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place. + +_* Fourth, a linked point, they have considerable monopolistic dangers—they may well produce more “embarrassment than advantage.” In fact, since intellectual property rights potentially restrain the benevolent tendency of “ideas . . . [to] freely spread from one to another over the globe, for the moral and mutual instruction of man,” they may in some cases actually hinder rather than encourage innovation. + +_* Fifth, deciding whether to have an intellectual property system is only the first choice in a long series.~{See ibid., 333–335.}~ Even if one believes that intellectual property is a good idea, which I firmly do, one will still have the hard job of saying which types of innovation or information are “worth to the public the embarrassment” of an exclusive right, and of drawing the limits of that right. This line-drawing task turns out to be very difficult. Without the cautions that Jefferson gave us it is impossible to do it well. + +Jefferson’s message was famously echoed and amplified thirty years later in Britain by Thomas Babington Macaulay.~{Readers interested in learning more about this fascinating man could begin with George Otto Trevelyan, The Life and Letters of Lord Macaulay, London ed. (Longmans, 1876).}~ Macaulay’s speeches to the House of Commons in 1841 on the subject of copyright term extension still express better than anything else the position that intellectual property rights are necessary evils which must be carefully circumscribed by law. In order for the supply of valuable books to be maintained, authors “must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.” Patronage is rejected out of hand. “I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles.”~{Thomas Babington Macaulay, speech delivered in the House of Commons (February 5, 1841), in The Life and Works of Lord Macaulay: Complete in Ten Volumes, Edinburgh ed. (Longmans, 1897), vol. VIII, 198 (hereinafter Macaulay Speech).}~ + +_1 We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. . . . I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.~{Ibid., 199.}~ + +Notice that it is the monopolistic quality of intellectual property that really disturbs Macaulay. His was a generation of thinkers for whom the negative effect of monopolies of any kind (and state-granted monopolies in particular) was axiomatic. He becomes almost contemptuous when one of the supporters of copyright extension declared that it was merely “a theory” that monopoly makes things expensive. Macaulay agrees, tongue in cheek. “It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates.”~{Ibid., 198–199.}~ + +These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,~{Graham v. John Deere, 383 U.S. 1, 7–11 (1966).}~ and, with one significant recent exception,~{Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1012. In a thoughtful, carefully reasoned, and provocative article, Professor Mossoff argues that Jefferson’s views have been misused by the courts and legal historians, and that if we understand the use of the word “privilege” in historical context, we see that the “patent privilege” was influenced by a philosophy of natural rights as well as the antimonopolist utilitarianism described here. I both agree and disagree.
Professor Mossoff’s central point—that the word “privilege” was not understood by eighteenth-century audiences as the antonym of “right”—is surely correct. To lay great stress on the linguistic point that the patent right is “merely” a “privilege” is to rest one’s argument on a weak reed. But this is not the only argument. One could also believe that intellectual property rights have vital conceptual and practical differences with property rights over tangible objects or land, that the framers of the Constitution who were most involved in the intellectual property clause were deeply opposed to the confusion involved in conflating the two, and that they looked upon this confusion particularly harshly because of an intense concern about state monopolies. One can still disagree with this assessment, of course; one can interpret Madison’s words this way or that, or interpret subsequent patent decisions as deep statements of principle or commonplace rhetorical flourishes. Still it seems to me a much stronger argument than the one based on the privilege–right distinction. I am not sure Professor Mossoff would disagree.
Professor Mossoff is also correct to point out that a “legal privilege” did sometimes mean to an eighteenth-century reader something that the state was duty-bound to grant. There was, in fact, a wide range of sources from which an eighteenth-century lawyer could derive a state obligation to grant a privilege. Eighteenth-century legal talk was a normative bouillabaisse—a rich stew of natural right, common law, utility, and progress—often thrown together without regard to their differences. Some lawyers and judges thought the common law embodied natural rights, others that it represented the dictates of “progress” and “utility,” and others, more confusingly still, seemed to adopt all of those views at once.
Nevertheless, I would agree that some eighteenth-century writers saw claims of common-law right beneath the assertion of some “privileges” and that a smaller number of those assumed common-law right and natural right to be equivalent, and thus saw a strong state obligation to grant a particular privilege based on natural right, wherever that privilege had been recognized by English or U.S. common law. But here is where I part company with Professor Mossoff.
First, I do not believe that the most important architects of the intellectual property clause shared that view when it came to patents and copyrights. Jefferson, of course, was not one of those who believed the state was so bound. “Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body” (Letter to McPherson, 334, emphasis added). More importantly, Jefferson’s thinking about patents was infused by a deeply utilitarian, antimonopolist tinge. So, I would argue, was Madison’s.
The quotations from Madison which I give later show clearly, to me at least, that Madison shared Jefferson’s deeply utilitarian attitude toward patent and copyright law. I think there is very good reason to believe that this attitude was dominant among the Scottish Enlightenment thinkers whose writings were so influential to the framers. I do not think it is an exaggeration to say that the American Revolution was violently against the world of monopoly and corruption that was the supposed target of the English Statute of Monopolies (itself hardly a natural rights document). Yes, those thinkers might fall back into talking about how hard an inventor had worked or construing a patent expansively. Yes, they might think that within the boundaries of settled law, it would be unjust to deny one inventor a patent when the general scheme of patent law had already been laid down. But that did not and does not negate the antimonopolist and, for that matter, utilitarian roots of the Constitution’s intellectual property clause.
Second, while I agree that there were strands of natural right thinking and a labor theory of value in the U.S. intellectual property system, and that they continue to this day—indeed, these were the very views that the Feist decision discussed in Chapter 9 repudiated, as late as 1991—I think it is easy to make too much of that fact. Is this signal or noise? There are conceptual reasons to think it is the latter. Later in this chapter I discuss the evolution of the droits d’auteur tradition in France. Here, at the supposed heart of the natural rights tradition, we find thinkers driven inexorably to consider the question of limits. How far does the supposed natural right extend—in time, in space, in subject matter? It is at that moment that the utilitarian focus and the fear of monopoly represented by Jefferson and Madison—and, for that matter, Locke and Condorcet—become so important.
Professor Mossoff is correct to criticize the focus on the word “privilege,” and also correct that the ideas of natural right and the labor theory of value always color attitudes toward intellectual property claims. But it would be an equal and opposite mistake to ignore two points. First, intellectual property rights are profoundly different from physical property rights over land in ways that should definitively shape policy choices. Second, partly because of those differences, and because of the influence of free-trade Scottish Enlightenment thought on the American Revolution in particular, there was a powerful antimonopolist and free-trade sentiment behind the copyright and patent clause. Simply read the clause. Congress is given the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Does this really read like the work of a group of believers in natural right? On the contrary, it reads like a limited grant of power to achieve a particular utilitarian goal. That sentiment—nicely encapsulated in but by no means limited to the words of Jefferson—is still a good starting place for an understanding of intellectual property.}~ historians of intellectual property have agreed.~{See, e.g., Ochoa and Rose, “Anti-Monopoly Origins,” and Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002). Ochoa, Rose, and Walterscheid stress the antimonopolist concerns that animated some of those who were most active in the debates about intellectual property. They also point out the influence of the English Statute of Monopolies of 1623, which attacked monopolies in general, while making an exception for periods of legal exclusivity for a limited time granted over “sole Working or Making of any Manner of new Manufacture within this Realm, to the first true Inventor or Inventors of such Manufactures which others at the time of the Making of such Letters Patents Grants did not use, so they be not contrary to the Law, nor mischievous to the State, by Raising of the Prices of Commodities at home, or Hurt by Trade, or generally inconvenient.”}~ Jefferson himself had believed that the Constitution should have definite limits on both the term and the scope of intellectual property rights.~{For example, in a letter to Madison commenting on the draft of the Constitution: “I like it, as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me: . . . Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding . . . years, but for no longer term, and no other purpose.” Letter from Thomas Jefferson to James Madison (August 28, 1789), in Writings of Thomas Jefferson, vol. 7, 450–451.}~ James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.~{“Monopolies tho’ in certain cases useful ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the U.S. has limited them to two cases—the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors; and because, for the same reason, the discovery might be expected in a short time from other hands. . . . Monopolies have been granted in other Countries, and by some of the States in this, on another principle, that of supporting some useful undertaking, until experience and success should render the monopoly unnecessary, and lead to a salutary competition . . . But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself in its original operation, may produce more evil than good. In all cases of monopoly, not excepting those in favor of authors and inventors, it would be well to reserve to the State, a right to extinguish the monopoly by paying a specified and reasonable sum. . . . Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight.” James Madison, “Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments” (1819), in “Aspects of Monopoly One Hundred Years Ago,” Harper’s Magazine, ed. Galliard Hunt, 128 (1914), 489–490; also in “Madison’s ‘Detatched Memoranda,’ ” ed. Elizabeth Fleet, William & Mary Quarterly, 3rd series, 3 no. 4 (1946): 551–552, available at http://www.constitution.org/jm/18191213_monopolies.htm.}~ Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen “very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.”~{Adam Smith, The Wealth of Nations, pt. 3, Of the Expenses of Public Works and Public Institutions, 2nd ed. (Oxford: Oxford University Press, 1880), 2:339: “When a company of merchants undertake, at their own risk and expense, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint-stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years. It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit. A temporary monopoly of this kind may be vindicated, upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author. But upon the expiration of the term, the monopoly ought certainly to determine; the forts and garrisons, if it was found necessary to establish any, to be taken into the hands of government, their value to be paid to the company, and the trade to be laid open to all the subjects of the state. By a perpetual monopoly, all the other subjects of the state are taxed very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.”}~ + +It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them—Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term. Here is Macaulay again, waxing eloquently sarcastic about the costs and benefits of extending the copyright term so that it would last many years after the author’s death: + +_1 I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson’s works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor’s servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman’s Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook’s shop underground.~{Macaulay Speech, 200–201.}~ + +Again, I am struck by how seamlessly Macaulay coupled beautiful, evocative writing and careful, analytic argument. Admittedly, he was remarkable even in his own time, but it is hard to imagine a contemporary speechwriter, let alone a politician, coming up with Dr. Johnson “cheered . . . under a fit of the spleen” or buying a “plate of shin of beef at a cook’s shop underground.” Almost as hard as it is to imagine any of them engaging in Jefferson’s correspondence about mammoth bones, orthography, and the practicalities of the nautical torpedo. But I digress. + +Macaulay is not against using a lengthened copyright term to give an extra reward to writers, even if this would dramatically raise the price of books. What he objects to is dramatically raising the price of books written by long-dead authors in a way that benefits the authors hardly at all. + +_1 Considered as a reward to him, the difference between a twenty years’ and a sixty years’ term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson’s none the better; that I am to give five pounds for what to him was not worth a farthing.~{Ibid., 201.}~ + +Though Macaulay won the debate over copyright term extension, it is worth noting here that his opponents triumphed in the end. As I pointed out in the last chapter, the copyright term in most of Europe and in the United States now lasts for the life of the author and an additional seventy years afterward, ten years more than the proposal which made Macaulay so indignant. In the United States, corporate owners of “works-for-hire” get ninety-five years.~{17 U.S.C. § 304 (1998).}~ The Supreme Court recently heard a constitutional challenge to the law which expanded the term of copyrights by twenty years to reach this remarkable length.~{Eldred v. Ashcroft, 537 U.S. 186 (2003).}~ (Full disclosure: I helped prepare an amicus brief in that case.)~{See Brief for Hal Roach Studios and Michael Agee as Amici Curiae Supporting Petitioners, Eldred v. Ashcroft.}~ This law, the Sonny Bono Copyright Term Extension Act, also extended existing copyrights over works which had already been created.~{Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998).}~ As I observed earlier, this is particularly remarkable if the idea is to give an incentive to create. Obviously the authors of existing works were given sufficient incentive to create; we know that because they did. Why do we need to give the people who now hold their copyrights another twenty years of monopoly? This is all cost and no benefit. Macaulay would have been furious. + +When the Supreme Court heard the case, it was presented with a remarkable friend-of-the-court brief from seventeen economists, several of them Nobel laureates.~{Brief of George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll, Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard J. Zeckhauser as Amici Curiae In Support of Petitioners, Eldred v. Ashcroft, available at http://cyber.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/economists.pdf. }~ The economists made exactly Macaulay’s argument, though in less graceful language. They pointed out that copyright extension imposed enormous costs on the public and yet conveyed tiny advantages, if any, to the creator. Such an extension, particularly over works that had already been written, hardly fit the limits of Congress’s power under the Constitution “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”~{U.S. Constitution, art. I, § 8, cl. 8. }~ Macaulay doubted that these enormously long terms would encourage the living. Surely they would do little to encourage the dead, while imposing considerable costs of access on the living? Thus they could hardly be said to “promote the progress” of knowledge as the Constitution requires. The Court was unmoved by this and other arguments. It upheld the law. I will return to its decision at the end of the book. + +The intellectual property skeptics had other concerns. Macaulay was particularly worried about the power that went with a transferable and inheritable monopoly. It is not only that the effect of monopoly is “to make articles scarce, to make them dear, and to make them bad.” Macaulay also pointed out that those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals.~{“These are strong cases. I have shown you that, if the law had been what you are now going to make it, the finest prose work of fiction in the language, the finest biographical work in the language, would very probably have been suppressed. But I have stated my case weakly. The books which I have mentioned are singularly inoffensive books, books not touching on any of those questions which drive even wise men beyond the bounds of wisdom. There are books of a very different kind, books which are the rallying points of great political and religious parties. What is likely to happen if the copyright of one of these books should by descent or transfer come into the possession of some hostile zealot?” Macaulay Speech, 199, 206. }~ We might lose the works of Found them distasteful and used the power of the copyright to suppress them. This is no mere fantasy, Macaulay tells us. After praising the novels of Samuel Richardson in terms that, to modern eyes, seem a little fervid (“No writings, those of Shakespeare excepted, show more profound knowledge of the human heart”), Macaulay recounts the story of Richardson’s grandson, “a clergyman in the city of London.” Though a “most upright and excellent man,” the grandson “had conceived a strong prejudice against works of fiction,” “thought all novel-reading not only frivolous but sinful,” and “had never thought it right to read one of his grandfather’s books.”~{Ibid., 205.}~ Extended copyright terms might hand over the copyright to such a man. The public would lose, not because they had to pay exorbitant prices that denied some access to the work, but because the work would be altogether suppressed. Richardson’s novels—Pamela, Clarissa Harlowe, and so on—are now the preserve of the classroom rather than the drawing room, so this might not seem like much of a loss. But Macaulay’s next example is not so easy to dismiss. + +_1 One of the most instructive, interesting, and delightful books in our language is Boswell’s Life of Johnson. Now it is well known that Boswell’s eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the Life of Johnson mentioned. Suppose that the law had been what my honourable and learned friend wishes to make it. Suppose that the copyright of Boswell’s Life of Johnson had belonged, as it well might, during sixty years, to Boswell’s eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden’s Britannia.~{Ibid., 206.}~ + +From more recent examples we can see that outright suppression is not the only thing to fear. The authors’ heirs, or the corporations which have purchased their rights, may keep policing the boundaries of the work long after the original author is dead. In 2001, Alice Randall published The Wind Done Gone. As its title might indicate, The Wind Done Gone was a 220-page “critique of and reaction to” the world of Gone With the Wind by Margaret Mitchell.~{Margaret Mitchell, Gone With the Wind (New York: Macmillan, 1936).}~ Most crucially, perhaps, it was a version of Gone With the Wind told from the slaves’ point of view. Suddenly the actions of Rhett (“R”), Scarlett (“Other”), and an obviously gay Ashley (“Dreamy Gentleman”) come into new perspective through the eyes of Scarlett’s “mulatto” half-sister. Mitchell’s estate wanted to prevent publication of the book. At first they were successful.~{SunTrust Bank v. Houghton Mifflin Co. , 136 F. Supp. 2d 1357 (N.D.Ga. 2001). For thoughtful commentary see Jed Rubenfeld, “The Freedom of Imagination: Copyright’s Constitutionality,” Yale Law Journal 112 (2002): 1–60. Robert S. Boynton provides a beautifully readable account of copyright’s restrictions in “The Tyranny of Copyright?” The New York Times Magazine (January 25, 2004): 40–45, available at http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html?ex=1390366800&en=9eb265b1f26e8b14&ei=5007∂ner=USERLAND. }~ As Yochai Benkler puts it, + +_1 Alice Randall, an African American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share the romantic view of the Confederacy. It was a federal judge in Atlanta who told Randall that she could not write her critique in the words she wanted to use—a judge enforcing copyright law.~{Yochai Benkler, “Through the Looking Glass: Alice and Constitutional Foundations of the Public Domain,” Law and Contemporary Problems 66 (Winter–Spring 2003): 173.}~ + +“They killed Miss Scarlett!” the astonished trial judge said after reading Randall’s book. My colleague Jennifer Jenkins, one of the lawyers in the case, recounts that the judge saw the case in relentlessly physical terms, seeing the parody as a “bulldozer” and Gone With the Wind as a walled country estate into which the bulldozer had violently trespassed. He was consequently unimpressed with the claim that this “bulldozer” was protected by the First Amendment. Eventually, the court of appeals overturned the district court’s judgment.~{SunTrust Bank v. Houghton Mifflin Co. , 268 F.3d 1257 (11th Cir. 2001).}~ Fifty-two years after Margaret Mitchell’s death, it was a hotly debated point how much leeway co others to comment upon, critique, embellish upon, and parody the cultural icon she had conjured up. + +2~ A Natural Right? + +To some people, my argument so far—and Jefferson’s and Macaulay’s—will seem to miss the point. They see intellectual property rights not as an incentive, a method of encouraging the production and distribution of innovation, but as a natural or moral right. My book is mine because I wrote it, not because society or the law gives me some period of exclusivity over allowing the copying of its contents. My invention is mine because it came from my brain, not because the law declares a twenty-year monopoly over its production or distribution. My logo is mine because I worked hard on it, not because the state grants me a trademark in order to lower search costs and prevent consumer confusion. One answer is simply to say “In the United States, the framers of the Constitution, the legislature, and the courts have chosen to arrange things otherwise. In copyright, patent, and trademark law—despite occasional deviations—they have embraced the utilitarian view instead.” + +Broadly speaking, that answer is correct.~{See note 19 of this chapter for a discussion of the most recent and thoughtful challenge to this claim.}~ It also holds, to a lesser extent, in Britain. Even in the droits d’auteur countries, which have a markedly different copyright law regime, it largely holds for their patent and trademark law systems, and utilitarian strands suffuse even “the sacred rights of authors.” So, on a national level, we have rejected or dramatically limited the natural rights view, and on an international level, we have rejected it in “industrial property”—patent and trademark—and modified it in copyright. + +I think this answer is correct and important, but we have an obligation to go further. Partly that is because intuitions about ownership coming naturally with labor or discovery continue to influence the law. Partly it is because those moral intuitions are important and appealing. Partly it is because we might wish to modify or criticize our current system. Using the views of the framers, or current law, to preempt discussion is unsatisfactory—even though those views are of particular importance for the legal policy decisions we face in the short run, the issues on which much of my argument is concentrated. + +There are varying stated grounds for natural or moral rights in intellectual creations. Some people may think the book is mine because I worked on it—a Lockean conception where I mix my sweat with these words and receive a property right in the process. + +For all its attractions, there are considerable difficulties with such a view. Even within the world of tangible property, Locke’s theory is more complicated than a simple equation of labor with property right. Jefferson’s account of property is actually closer to Locke’s than many would realize. When Jefferson points out the difficulty in justifying a natural right even in an acre of land, let alone a book, his premises are not radically different from Locke’s. The same is true when Jefferson says that “[s]table ownership is the gift of social law, and is given late in the progress of society.” Even if natural right does create the ground for the property claim, it is “social law” that shapes its contours and guarantees its stability. Jefferson, of course, thought that was particularly true for intellectual property rights. In that context, he felt the natural rights argument was much weaker and the need for socially defined purposive contours and limitations stronger. + +Locke’s own views on what we would think of as copyright are hard to determine. We do know that he had a strong antipathy to monopolies—particularly those affecting expression. He believed, for example, that giving publishers monopolies over great public domain books caused a disastrous fall in quality. Instead, he argued, such books should be open for all to compete to produce the best edition. Of course, he was writing in the context of monopolistic printing privileges—to which he was strongly opposed—rather than of individual authorial rights. Yet he went further and suggested that even for contemporary works, after a particular time in print—say fifty years—books could be printed by anyone. + +_1 I demand whether, if another act for printing should be made, it be not reasonable that nobody should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have liberty to print it: for by such titles as these, which lie dormant, and hinder others, many good books come quite to be lost.~{Lord King, The Life of John Locke with Extracts from His Correspondence, Journals and Common-Place Books vol. 1 (London: Henry Colburn, 1830), 379–380.}~ + +This sounds like a strongly utilitarian argument, rather than one based on labor and natural right. Of course, we are not bound by what Locke or Jefferson thought. Still it is striking to see the turn to a utilitarian conception from both of them. + +The Lockean tradition is not the only one, of course. Others believe that the property right stems from the unique personality of each individual—the configurations of your individual genius made manifest in the lines of your sonnet. (Some limit the natural right to literary and expressive work; can a mousetrap or a drug molecule express the riddle and wonder of the human spirit?) Whatever their moral basis or their ambit, the common ground between these positions is the belief in a rationale for intellectual property rights beyond the utilitarian concerns of Jefferson or Macaulay. + +The norms embodied in the moral rights or natural rights tradition are deeply attractive—at least to me. Many of us feel a special connection to our expressive creations—even the humble ones such as a term paper or a birthday poem. It is one of the reasons that the central moral rights in the French droits d’auteur, or author’s rights, tradition resonate so strongly with us. The entitlement of an author to be correctly attributed, to have some control over the integrity of his work, seems important regardless of its utilitarian functions. + +Yet even as we find this claim attractive, we become aware of the need to find limiting principles to it. It gives us pause to think that Margaret Mitchell or her heirs could forbid someone parodying her work. Are there no free-speech limitations? When other forms of authorship, such as computer programs, are brought into copyright’s domain, does the power of the moral right decrease, while the need to limit its scope intensifies? + +Then there is the question of length. How long is a natural right in expression or invention supposed to last? It seems absurd to imagine that Shakespeare’s or Mozart’s heirs, or those who had bought their copyrights, would still be controlling the performance, reproduction, and interpretation of their works hundreds of years after their death. If the rights are truly formed for a nonutilitarian purpose, after all, why should they expire? The person who first acquires property rights in land by work or conquest passes those rights down to heirs and buyers with the chain of transmission reaching to the present day. Should copyright follow suit? Even in France, the home of the strongest form of the droits d’auteur and of the “moral rights” tradition, the answer to this question was in the negative. + +We owe a large part of the literary moral rights tradition to the immediate aftermath of the French Revolution. In France before the Revolution, as in England before the Statute of Anne, the first true copyright legislation, the regulation of publishing was through a set of “privileges” given to printers, not rights given to authors. Publishers would have a guild-enforced monopoly over certain titles. Their right was against competing publishers printing the list of titles over which they had the privilege. The Revolution abolished these privileges and, at first, put nothing in their place. On the other hand, as Carla Hesse’s fascinating work reveals, there was intermittent interference by the Prefecture of Police with those who copied most flagrantly. One such publisher was sternly instructed by the police in these terms: + +_1 [A]ccording to the Declaration of the Rights of Man, liberty means only the freedom to do what does not harm others; and that it harms others to appropriate the work of an author, because it is an infringement of the sacred right of property; and that such an enterprise, if it were to remain unpunished, would deprive citizens of the instruction they await from celebrated authors like M. Bernardin de St. Pierre, because no author would want to consecrate his labors to the instruction of his age if piracy were ever authorized.~{Archives de la Préfecture de Police de Paris, ser. AA, carton 200, feuilles 182–183, “Procès-verbal de police, section de St. Geneviève, 23–24 octobre 1791.” Quoted in Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789–1810 (Berkeley: University of California Press, 1991), 91.}~ + +Note the interesting mixture of the language of the “sacred rights of property” and the strong utilitarian justification which cites effects on future literary production and the “instruction” of citizens. + +More expansive conceptions of the rights of authors and, particularly, of publishers were also offered. Even before the Revolution, publishers had been making the arguments that their privileges were a form of property rights and had the very good sense to hire the young Diderot to make those arguments. Hesse quotes his words: + +_1 What form of wealth could belong to a man, if not a work of the mind, . . . if not his own thoughts, . . . the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it?~{Quoted in Hesse, Publishing and Cultural Politics, 100.}~ + +Diderot’s theme is that authors’ rights should actually be stronger than other property rights for two reasons. First, they relate to the very essence of the person, the most “precious part of himself.” Second, they are the only property rights over something that has been added to the existing store of wealth rather than taken from it. Authorial property, unlike property in land, adds to the common store rather than detracting from it. Locke believed that a just assertion of property rights must leave “enough and as good” for others in the society. What could better satisfy this condition than a property right over a novel that did not exist before I wrote it? One hundred years later Victor Hugo echoed the same thoughts in a speech to the Conseil d’Etat and pointed out at the same time that literary property rights could potentially “reconcile” troublesome authors to society and state. + +_1 You feel the importance and necessity of defending property today. Well, begin by recognising the first and most sacred of all properties, the one which is neither a transmission nor an acquisition but a creation, namely literary property . . . reconcile the artists with society by means of property.~{Victor Hugo, speech to the Conseil d’Etat, September 30, 1849, quoted in Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (London: Routledge & Kegan Paul, 1979), 41.}~ +Diderot wanted perpetual copyrights for authors and, agreeably to his employers, a correspondingly perpetual printing privilege. If the author’s heirs could not be traced, the copyright would devolve to the current publisher. + +But as Hesse points out, there was another view of literary property—a much more skeptical one put forward best by Condorcet. This view is also an influential part of the heritage of the droits d’auteur, even if it is downplayed in its contemporary rhetoric. Condorcet began by framing the question of literary property as one of political liberty. “Does a man have the right to forbid another man to write the same words that he himself wrote first? That is the question to resolve.”~{Oeuvres de Condorcet, ed. A. Condorcet O’Connor and M. F. Arago, vol. 11 (Paris: Firmin Didot Frères, 1847), 308, available at http://books.google.com/books?id—ZoGAAAAQAAJ. }~ Like Jefferson, Condorcet is utterly unconvinced that property rights in a book can be compared to those in a field or a piece of furniture which can be occupied or used by only one man. The type of property is “based on the nature of the thing.” He concluded, again in language strikingly similar to Jefferson’s and Macaulay’s, that literary property was not a real property right but a privilege, and one which must be assessed on a utilitarian basis in terms of its contribution to enlightenment.~{Ibid., 308–309: “En effet, on sent qu’il ne peut y avoir aucun rapport entre la propriété d’un ouvrage et celle d’un champ, qui ne peut être cultivé que par un homme; d’un meuble qui ne peut servir qu’à un homme, et dont, par conséquent, la propriété exclusive est fondée sur la nature de la chose. Ainsi ce n’est point ici une propriété dérivée de l’ordre naturel, et défendue par la force sociale; c’est une propriété fondée par la société même. Ce n’est pas un véritable droit, c’est un privilége, comme ces jouissances exclusives de tout ce qui peut être enlevé au possesseur unique sans violence.”}~ + +_1 Any privilege therefore imposes a hindrance on freedom, placing a restriction on the rights of other citizens; As such it is not only harmful to the rights of others who want to copy, but the rights of all those who want copies, and that which increases the price is an injustice. Does the public interest require tother words, are [literary] privileges needed and useful or harmful to the progress of enlightenment?~{Ibid., 309: “Tout privilége est donc une gêne imposée à la liberté, une restriction mise aux droits des autres citoyens; dans ce genre il est nuisible non-seulement aux droits des autres qui veulent copier, mais aux droits de tous ceux qui veulent avoir des copies, et pour qui ce qui en augmente le prix est une injustice. L’intérêt public exige-t-il que les hommes fassent ce sacrifice? Telle est la question qu’il faut examiner; en d’autres termes, les priviléges sont-ils nécessaires, utiles ou nuisibles au progrès des lumières?”}~ + +Condorcet’s conclusion was that they were not necessary and that they could be harmful. “The books that most furthered the progress of enlightenment, the Encyclopédie, the works of Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits of a privilege.” Instead he seemed to favor a combination of “subscriptions” to authors with a trademark-like protection which allowed an author to identify a particular edition of his work as the genuine one, but which also allowed competing editions to circulate freely. In such a market, he believed that the price of the competing editions would fall to “natural” levels—today we would call it marginal cost—but the original author would still be able to charge a modest premium for the edition he authorized or certified because readers would prefer it as both more accurate and more authentic. One possible analogy is to the history of the fashion industry in the United States. It operates largely without design protection but relies heavily on the trademarks accorded to favored designers and brands. There are “knockoffs” of Armani or Balenciaga, but the wealthy still pay an enormous premium for the real thing. + +Condorcet also insisted that whatever protection was accorded to literary works must not extend to the ideas within them. It is the truths within books that make them “useful”—a word that does not have the same luminance and importance for us today as it did for the philosophers of the Enlightenment or the French Revolution. He argued that any privilege given the author could not extend to “preventing another man from exhibiting the same truths, in perfectly the same order, from the same evidence” or from extending those arguments and developing their consequences. In a line that Hesse rightly highlights, he declares that any privileges do not extend over facts or ideas. “Ce n’est pas pour les choses, les idées; c’est pour les mots, pour le nom de l’auteur.” + +In sum, Condorcet favors a limited privilege, circumscribed by an inquiry into its effects in promoting progress and enlightenment. The privilege only applies to expression and to “the author’s name,” rather than to facts and ideas. This is very much within the tradition of Jefferson and Macaulay. + +Hesse argues, correctly I think, that two warring ideas shaped—or are at least useful ways of understanding—the development of the droits d’auteur tradition. On one side were Diderot and the publishers promoting an expansive and perpetual natural authorial right, which nevertheless was supposed to vest suspiciously easily in publishers. On the other was Condorcet, looking skeptically at authorial privileges as merely one type of state interference with free markets and the free circulation of books and ideas. In place of Diderot’s perpetual natural right, Condorcet sketched out a regime that encourages production and distribution by granting the minimum rights necessary for progress. + +Different as they are, these two sides share a common ground. They both focus, though for different reasons, on “expression”—the imprimatur of the author’s unique human spirit on the ideas and facts that he or she transmits. It is this “original expression” that modern copyright and the modern droits d’auteur actually cover. In today’s copyright law, the facts and ideas in an author’s work proceed immediately into the public domain. In other work, I have argued that by confining the property right tightly to the “original expression” stemming from the unique personality of an individual author the law seems to accomplish a number of things simultaneously. It provides + +_1 a conceptual basis for partial, limited property rights, without completely collapsing the notion of property into the idea of a temporary, limited, utilitarian state grant, revocable at will. [At the same time it offers] a moral and philosophical justification for fencing in the commons, giving the author property in something built from the resources of the public domain—language, culture, genre, scientific community, or what have you. If one makes originality of spirit the assumed feature of authorship and the touchstone for property rights, one can see the author as creating something entirely new—not recombining the resources of the commons.~{James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 55–57.}~ + +That is an account of the romantic theory of authorship in the context of contemporary Anglo-American copyright law. But when one looks at the history of the French droits d’auteur tradition, it is striking how well those words describe that system as well. When the French legislature finally produced a law of authors’ rights it turned out, in Hesse’s words, to reflect “an epistemologically impure and unstable legal synthesis that combined an instrumentalist notion of the public good with a theory of authorship based on natural rights.” + +_1 Although it drew on a Diderotist rhetoric of the sanctity of individual creativity as an inviolable right, it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the privilège d’auteur of 1777, the law did not recognize the author’s claim beyond his lifetime but consecrated the notion, advanced first by Pierre Manuel to defend his edition of Mirabeau, that the only true heir to an author’s work was the nation as a whole. This notion of a public domain, of democratic access to a common cultural inheritance on which no particular claim could be made, bore the traces not of Diderot, but of Condorcet’s faith that truths were given in nature and, although mediated through individual minds, belonged ultimately to all. Progress in human understanding depended not on private knowledge claims, but on free and equal access to enlightenment. An author’s property rights were conceived as recompense for his service as an agent of enlightenment through publication of his ideas. The law of 1793 accomplished this task of synthesis through political negotiation rather than philosophical reasoning—that is, by refashioning the political identity of the author in the first few years of the Revolution from a privileged creature of the absolutist police state into a servant of public enlightenment.~{Hesse, Publishing and Cultural Politics, 121–122. As Hesse points out, this legal legerdemain also produced an interesting transformation in the status of the great authors of the French tradition. “If the Old Regime first accorded Voltaire, Rousseau, or Mirabeau the possibility of legal status as privileged authors with perpetual private lineages for their texts, the Revolution relocated these figures in the public domain, the legal parallel to the civic rituals that unearthed them from private gravesites and reposed their bodily remains in the public temple of the Pantheon.” Ibid., 123. One of the central features of the debates described in this book is a starkly different set of characterizations of the public domain. Is it a communist repossession of the sacred rights of authors? The noble common store of knowledge from which all future creators can build? The worthless remainder of material that is no longer worth protecting?}~ + +Hesse argues that this instability would continue through the revolutionary period. I agree; indeed I would argue that it does so to the present day. Why? The answer is simple. The moral rights view simply proved too much. Without a limiting principle—of time, or scope, or effect—it seemed to presage a perpetual and expansive control of expressive creations, and perhaps of inventions. Our intuition that this is a bad idea comes from our intuitive understanding that “Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the assimilation of literature to private enterprise.”~{Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, N.J.: Princeton University Press, 1957), 96–97.}~ + +This is the flip side of the arguments that Diderot and later Hugo put forward. Perhaps the romantic author does not create out of thin air. Perhaps he or she is deeply embedded in a literary, musical, cultural, or scientific tradition that would not flourish if treated as a set of permanently walled private plots. Even within the droits d’auteur tradition, we see a recognition that the continuing progress of enlightenment and the sacred genius of authors might both require a certain level of freedom in knowledge inputs and a certain level of control over knowledge outputs. We see also the recognition that these two requirements are in fundamental tension. When it comes to reconciling that tension we must turn in part to utilitarian effects. In short, we should pay attention to Jefferson and Macaulay and Condorcet, not just because their thoughts shaped the legal and philosophical traditions in which we now work—though that is particularly true in the case of the United States—but because they were right, or at least more right than the alternative. + +Of course, we could build a culture around a notion of natural, absolute, and permanent rights to invention and expression. It is not a world many of us would want to live in. There are exceptions of course. In a recent New York Times op-ed, Mark Helprin—author of Winter’s Tale—argued that intellectual property should become perpetual.~{Mark Helprin, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” New York Times editorial (May 20, 2007), A12.}~ After all, rights in real estate or personal property do not expire—though their owners might. Why is it that copyrights should “only” last for a lifetime plus seventy additional years, or patents for a mere twenty? Mr. Helprin expresses respect for the genius of the framers, but is unmoved by their firm command that rights be granted only for “limited times.” He concludes that it was a misunderstanding. Jefferson did not realize that while ideas cannot be owned, their expression can. What’s more, the framers were misled by their rustic times. “No one except perhaps Hamilton or Franklin might have imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy. Now they are, and it is no more rational to deny them equal status than it would have been to confiscate farms, ropewalks and other forms of property in the 18th century.” Poor Jefferson. How lucky we are to have Mr. Helprin to remedy the consequences of his lack of vision. + +Or perhaps not. Think of the way that Jefferson traced the origins of the mechanical arts used in the elevators and hopper-boys all the way back to ancient Persia. (In Mr. Helprin’s utopia, presumably, a royalty stream would run to Cyrus the Great’s engineers.) Jefferson’s point was that for the process of invention to work, we need to confine narrowly the time and scope of the state-provided monopoly, otherwise further inventions would become impossible. Each process or part of a new invention would risk infringing a myriad of prior patents on its subcomponents. Innovation would strangle in a thicket of conflicting monopolies with their roots vanishing back in time. Presumably the title of Mr. Helprin’s excellent novel would require clearance from Shakespeare’s heirs. + +Of course, one could construct a more modest Lockean idea of intellectual property~{The two most influential and brilliant examples are Justin Hughes, “The Philosophy of Intellectual Property,” Georgetown Law Journal 77 (1988): 287–366, and Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” Yale Law Journal 102 (1993): 1533–1610. Both of these articles attempt not to use Locke as the basis for a world of absolute right, but instead to focus on the Locke whose world of private property coexisted with a commons—albeit one much diminished after the invention of money. If one goes far enough into the Lockean conception—fine-tuning “enough and as good” so as to allow for a vigorous commons, and the claims of labor so as to take account of the importance of the embedded contributions of culture and science—then the differences between the Jeffersonian view and the Lockean view start to recede in significance. Academics have found the Lockean view attractive, noting, correctly, that Locke is commonly brandished as a rhetorical emblem for property schemes that he himself would have scorned. Yet when one looks at the actual world of intellectual property policy discourse, and the difficulty of enunciating even the simple Jeffersonian antimonopolist ideas I lay out here, it is hard to imagine the nuanced Lockean view flourishing. Consider this comment of Jeremy Waldron’s and ask yourself—is this result more likely from within the Jeffersonian or the Lockean view?
Our tendency of course is to focus on authors when we think about intellectual property. Many of us are authors ourselves: reading a case about copyright we can empathize readily with a plaintiff’s feeling for the effort he has put in, his need to control his work, and his natural desire to reap the fruits of his own labor. In this Essay, however, I shall look at the way we think about actual, potential and putative infringers of copyright, those whose freedom is or might be constrained by others’ ownership of songs, plays, words, images and stories. Clearly our concept of the author and this concept of the copier are two sides of the same coin. If we think of an author as having a natural right to profit from his work, then we will think of the copier as some sort of thief; whereas if we think of the author as beneficiary of a statutory monopoly, it may be easier to see the copier as an embodiment of free enterprise values. These are the connections I want to discuss, and my argument will be that we cannot begin to unravel the conundrums of moral justification in this area unless we are willing to approach the matter even-handedly from both sides of the question.
After a magisterial study of justifications for the existing world of intellectual property, Waldron concludes, “[t]he fact is, however, that whether or not we speak of a burden of proof, an institution like intellectual property is not self-justifying; we owe a justification to anyone who finds that he can move less freely than he would in the absence of the institution. So although the people whose perspective I have taken—the copiers—may be denigrated as unoriginal plagiarists or thieves of others’ work, still they are the ones who feel the immediate impact of our intellectual property laws. It affects what they may do, how they may speak, and how they may earn a living. Of course nothing is settled by saying that it is their interests that are particularly at stake; if the tables were turned, we should want to highlight the perspective of the authors. But as things stand, the would-be copiers are the ones to whom a justification of intellectual property is owed.” See Jeremy Waldron, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” Chicago-Kent Law Review 68 (1993): 841, 842, 887. That justification seems more plausibly and practically to come from the perspective I sketch out here. See also William Fisher, “Theories of Intellectual Property,” in New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer (Cambridge: Cambridge University Press, 2001), 168–200.} —building on the notion of “enough and as good” left over for others and drawing the limits tightly enough to avoid the worst of Mr. Helprin’s excesses. But as one attempts to do this systematically, the power of the Jeffersonian vision becomes all the more apparent—at least as a starting place. + +The Jefferson Warning will play an important role in this book. But my arguments here have implications far beyond Jefferson’s time, country, or constitutional tradition. In the last analysis, I hope to convince you of the importance of the Jefferson Warning or the views of Macaulay not because they are famous authorities and revered thinkers or because they framed constitutions or debated legislation. I wish to convince you that their views are important because they encapsulate neatly an important series of truths about intellectual property. We should listen to the Jefferson Warning not because it is prestigious but because of its insight. As the Diderot-Condorcet debates point out, the questions on which Jefferson and Macaulay focused do not disappear merely because one embraces a philosophy of moral rights—if anything, they become more pressing, particularly when one comes to define the limits of intellectual property in scope and time. I ask that those readers who remain leery of the Jeffersonian focus concentrate on that last issue. In an era when we have been expanding intellectual property rights relentlessly, it is a crucial one. If the Jefferson Warning produces in my unconvinced reader even a slight queasiness about the likely effects of such a process of expansion, it will have done its job—though in fact the tradition it represented was much richer than a simple utilitarian series of cautions. + +2~ A Tradition of Skeptical Minimalism + +Eighteenth- and nineteenth-century intellectual property debates went beyond Macaulay’s antimonopolist focus on price, access, quality, and control of the nation’s literary heritage. While Macaulay is the best-remembered English skeptic from the 1840s, there were other, more radical skeptics who saw copyright primarily as a “tax on literacy” or a “tax on knowledge,” identical in its effects to the newspaper stamp taxes.~{Catherine Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999), 46–48.}~ This was a time when mass literacy and mass education were the hotly debated corollaries to the enlargement of the franchise. The radical reformers looked with hostility on anything that seemed likely to raise the cost of reading and thus continue to restrict political and social debate to the wealthier classes. Macaulay worried about a world in which “a copy of Clarissa would . . . [be] as rare as an Aldus or a Caxton.”~{Macaulay Speech, 256.}~ His more radical colleagues saw copyright—to use our ugly jargon rather than theirs—as one of the many ways in which state communications policy is set and the communicative landscape tilted to favor the rich and powerful.~{This point is made today by a number of authors. See Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006), available at http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf; Neil Weinstock Netanel, “Locating Copyright Within the First Amendment Skein,” Stanford Law Review 54 (2001): 1–86; Netanel, “Copyright and a Democratic Civil Society,” Yale Law Journal 106 (1996): 283–388; David McGowan, “Why the First Amendment Cannot Dictate Copyright Policy,” available at http://lawreview.law.pitt.edu/issues/65/65.2/McGowan.pdf [Ed. note: originally published as: David McGowan, “First Amendment & Copyright Policy,” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=460280; the new link is to the final published version of the article]; Randal Picker, “Copyright as Entry Policy: The Case of Digital Distribution,” Antitrust Bulletin 47 (2002): 423, 424.}~ Macaulay worried about the effects of monopoly on literature and culture. All of them worried about the effects of copyright on democracy, on speech, on education. In the world of the Internet, these skeptics too have their contemporary equivalents. + +Patent law also attracted its share of attacks in the mid-nineteenth century. A fusillade of criticism, often delivered by economists and cast in the language of free trade, portrayed the patent system as actively harmful. + +_1 At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden, September 1863, the following resolution was adopted “by an overwhelming majority”: “Considering that patents hinder rather than further the progress of invention; that they hamper the prompt general utilization of useful inventions; that on balance they cause more harm than benefit to the inventors themselves and, thus, are a highly deceptive form of compensation; the Congress of German Economists resolves: that patents of invention are injurious to common welfare.”~{Quoted in Fritz Machlup and Edith Penrose, “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10, no. 1 (1950): 4, n8.}~ + +In the Netherlands, the patent system was actually abolished in 1869 as a result of such criticisms. Observers in a number of other countries, including Britain, concluded that their national patent systems were doomed. Various proposals were made to replace patents, with state-provided prizes or bounties to particularly useful inventions being the most popular.~{Ironically, contemporary economists are rediscovering the attractions of patent alternatives. A paper by Steven Shavell and Tanguy Van Ypersele is particularly interesting in this regard: “Rewards versus Intellectual Property Rights,” NBER Working Paper series, no. 6956, available at http://www.nber.org/papers/w6956. }~ + +These snippets are hardly sufficient to constitute any kind of survey of critical reactions to intellectual property systems, but I believe that nevertheless they give us some sense of typical debates. What do these debates tell us? From the early days of intellectual property as we know it now, the main objections raised against it were framed in the language of free trade and “anti-monopoly.” In the United States, the founding generation of intellectuals had been nurtured on the philosophy of the Scottish Enlightenment and the history of the struggle against royal monopolies. They saw the arguments in favor of intellectual property but warned again and again of the need to circumscribe both its term and its scope. This is the point at the heart of Jefferson’s letter. This is why he insisted that we understand the policy implications of the differences between tangible property and ideas, which “like fire” are “expansible over all space, without lessening their density in any point.” + +What were the concerns of these early critics? They worried about intellectual property producing artificial scarcity, high prices, and low quality. They insisted that the benefits of each incremental expansion of intellectual property be weighed against its costs. Think of Macaulay discussing Johnson’s preference for a shin of beef rather than another slice of postmortem copyright protection. They worried about its justice; given that we all learn from and build on the past, do we have a right to carve out our own incremental innovations and protect them by intellectual property rights?~{“Governor Thomas was so pleased with the construction of this stove . . . that he offered to give me a patent for the sole vending of them for a term of years; but I declined it from a principle which has ever weighed with me on such occasions, viz.: That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.” Benjamin Franklin, Autobiography, in The Works of Benjamin Franklin, ed. John Bigelow, vol. 1 (New York: G. P. Putnam’s Sons, 1904), 237–238.}~ Price aside, they also worried that intellectual property (especially with a lengthy term) might give too much control to a single individual or corporation over some vital aspect of science and culture. In more muted fashion, they discussed the possible effects that intellectual property might have on future innovation. The most radical among them worried about intellectual property’s effects on political debate, education, and even control of the communications infrastructure, though they did not use that particular phrase. But the overwhelming theme was the promotion of free trade and a corresponding opposition to monopolies. Now if we were to stop here and simply require that today’s policy makers, legislators, and judges recite the Jefferson Warning before they rush off to make new intellectual property rules for the Internet and the genome, we would have accomplished a great deal. National and international policy makers are keen to set the “rules of the road for the digital age.” If they would momentarily pause their excited millenarian burbling and read the points scratched out with a quill pen in 1813, or delivered (without PowerPoint support) on the floor of the House of Commons in the 1840s, we would be better off. Everyone is beginning to understand that in the world of the twenty-first century the rules of intellectual property are both vital and contentious. How good it would be then if our debate on intellectual property policy were as vigorous and as informed as the debates of the nineteenth century. (Though we might hope it would also be more democratic.) + +And yet . . . there is much that is missing from the skepticism of the eighteenth and nineteenth centuries and much that remains unclear. Look at the structure of these comments; they are framed as criticisms of intellectual property rather than defenses of the public domain or the commons, terms that simply do not appear in the debates. There is no real discussion of the world of intellectual property’s outside, its opposite. Most of these critics take as their goal the prevention or limitation of an “artificial” monopoly; without this monopoly our goal is to have a world of—what? The assumption is that we will return to a norm of freedom, but of what kind? Free trade in expression and innovation, as opposed to monopoly? Free access to expression and innovation, as opposed to access for pay? Or free access to innovation and expression in the sense of not being subject to the right of another person to pick and choose who is given access, even if all have to pay some flat fee? Or is it common ownership and control that we seek, including the communal right to forbid certain kinds of uses of the shared resource? The eighteenth- and nineteenth-century critics brushed over these points; but to be fair, we continue to do so today. The opposite of property, or perhaps we should say the opposites of property, are much more obscure to us than property itself. + +For the most part, the antimonopolist view of intellectual property makes a simple case. Monopolies are bad. Have as few as possible and make them as narrow and as short as possible. This is a fine principle, but it falls short of an affirmative explanation and defense of the role of the public domain or the commons in enabling creativity, culture, and science. That is a shame because just as intellectual property is different from tangible property, so too is its opposite, its outside. + +What are those opposites? The two major terms in use are “the public domain” and “the commons.” Both are used in multiple ways—probably a good thing. The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patents over powered flight are examples. + +Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive. If one uses a spatial metaphor, the absolutist vision is a tessellated map. Areas of private property are neatly delineated from areas of the public domain. Mozart’s plot sits next to that of Britney Spears; one public, the other private. In the granular view, the map is more complex. Ms. Spears’ plot is cut through with rights to make fair use, as well as with limitations on ownership of standard themes. Instead of the simple tiled map, the granular vision has private plots with public roads running through them. + +In popular discussion, we tend to use the absolutist view of both property and the public domain. Lawyers prefer the more complex view of property and are coming slowly to have a similarly complex view of the public domain. That is the definition I will be using. + +The term “commons” is generally used to denote a resource over which some group has access and use rights—albeit perhaps under certain conditions. It is used in even more ways than the term “public domain.” The first axis along which definitions of the term “commons” vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here. + +The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others. I will discuss this type of commons in Chapter 8. + +So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works. Why is it so important? Let us start with the dry reasons. + +Information and innovation are largely nonrival and nonexcludable goods. This is Jefferson’s point, though expressed in less graceful language. It has some interesting corollaries. Information is hard to value until you have it, but once you have it, how can you dispossess yourself of it? The apple can be taken back by the merchant if you decide not to buy. The facts or the formulae cannot. The moment when you might have decided to pay or not to pay is already over. The great economist Kenneth Arrow formalized this insight about information economics,~{Kenneth Arrow, “Economic Welfare and the Allocation of Resources for Invention,” in National Bureau of Economic Research, The Rate and Direction of Inventive Activity: Economic and Social Factors (Princeton, N.J.: Princeton University Press, 1962), 609–626.}~ and it profoundly shapes intellectual property policy. (To a large extent, for example, the requirement of “patent disclosure” attempts to solve this problem. I can read all about your mousetrap but I am still forbidden from using it. I can decide whether or not to license your design at that point.) But for all the material in the public domain, where no intellectual property right is necessary, this point is solved elegantly by having the information be “free as the air to common use.” All of us can use the same store of information, innovation, and free culture. It will be available at its cost of reproduction—close to zero—and we can all build upon it without interfering with each other. Think of the English language, basic business methods, tables of logarithms, the Pythagorean theorem, Shakespeare’s insights about human nature, the periodic table, Ohm’s law, the sonnet form, the musical scale. + +Would you have paid to purchase access to each of these? I might tell you that English was a superior communication tool—a really good command language for your cognitive operating system. There could be levels of access with corresponding prices. Would you pay to get access to “English Professional Edition”? We can certainly imagine such a way of organizing languages. (To some extent, scribal conventions operated this way. The languages of the professions still do. One paid for access to “law French” in the common law courts of England. One pays for an interpreter of contemporary legal jargon in today’s legal system. But even there the language is free to the autodidact.) We can imagine language, scientific knowledge, basic algebra, the tonic scale, or the classics of four-hundred-year-old literature all being available only as property. Those who had the highest “value for use” would purchase them. Those who did not value them highly—whether because they could not know what could be built with them until they had done so or because they did not have the money—would not. What would this world, this culture, this science, this market look like? + +It would probably be very inefficient, the economists tell us. Perfect information is a defining feature of the perfect market. The more commodified and restricted our access to information, the less efficient the operation of the market, the more poorly it allocates resources in our society. (The permanent and in some sense insoluble tension between the need to provide incentives to generate information, thus raising its cost, and the need to have access to perfect information for efficiency is the central feature of our intellectual property policy.)~{Sanford J. Grossman and Joseph E. Stiglitz, “On the Impossibility of Informationally Efficient Markets,” American Economic Review 70 (1980), 393–408; Boyle, Shamans, 35–42.}~ When we commodify too much we actually undermine creativity, since we are raising the price of the inputs for future creations—which might themselves be covered by intellectual property rights. But “inefficient” is too bloodless a way to describe this world. It would be awful. + +Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a public domain of freely available material than they do on the informational material that is covered by property rights. The public domain is not some gummy residue left behind when all the good stuff has been covered by property law. The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture. Or at least it has been. + +I deliberately gave easy examples. It is obvious how unnecessary but also how harmful it would be to extend property rights to language, to facts, to business methods and scientific algorithms, to the basic structures of music, to art whose creators are long dead. It is obvious that this would not produce more innovation, more debate, more art, more democracy. But what about the places where the value of the public domain is not obvious? + +What if we were actually moving to extend patents to business methods, or intellectual property rights to unoriginal compilations of facts? What if we had locked up most of twentieth-century culture without getting a net benefit in return? What if the basic building blocks of new scientific fields were being patented long before anything concrete or useful could be built from them? What if we were littering our electronic communication space with digital barbed wire and regulating the tiniest fragments of music as if they were stock certificates? What if we were doing all this in the blithe belief that more property rights mean more innovation? The story of this book is that we are. + +The Jefferson Warning is important. It is, however, just a warning. While it would be excellent to print it on pocket cards and hand it to our elected representatives, that alone will not solve the most pressing problems we face. In the chapters that follow, I shall try to go further. In Chapter 3, I set the process of expansion we are engaged in—our “second enclosure movement”—in perspective by comparing it to the original enclosures of the grassy commons of old England. In Chapter 4, I jump from the world of the fifteenth or nineteenth century to the world of the twenty-first, from elevators and grain hoppers to video recorders, the Internet, and file-sharing services. I use the story of several key legal disputes to illustrate a broader history—the history of intellectual property’s struggle with communications technologies that allow people to copy more cheaply. Strangely enough, the Jefferson Warning will be crucial in understanding the debate over copyright online and, in particular, in understanding the fear that drives our current policy making, a fear I refer to as the Internet Threat. + +2~ Chapter 2: Further Reading + +In this chapter I offered a snapshot of the historical debate over copyright, patent and—to a lesser extent—trademark law. The argument is partly a matter of intellectual history: a claim about what various individuals and groups actually believed about intellectual property rights, and the way those beliefs shaped the policies they supported and the legal structures they created. But it is also a normative argument—a claim that this vision of intellectual property is better than the more “physicalist” and “absolutist” alternatives I described or, at the very least, that it is an important corrective to our current excesses. This dual character complicates the task of providing a guide to further reading: books could be written on either portion alone. + +My own understanding of the history of “intellectual property”—itself a relatively recently invented and contentious category—has been profoundly influenced by more scholars than I can list here. Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002), gives a magisterial account of the origins of the U.S. Constitution’s intellectual property clause. Tyler T. Ochoa and Mark Rose, “The Anti-Monopoly Origins of the Patent and Copyright Clause,” Journal of the Patent & Trademark Office Society 84 (2002): 909–940, offer a vision of the history that is closest to the one I put forward here. In addition, Tyler T. Ochoa, “Origins and Meanings of the Public Domain,” University of Dayton Law Review 28 (2002): 215–267, provides the same service for the concept of the public domain. Malla Pollack provides a useful historical study of the contemporary understanding of the word “progress” at the time of the American Constitution in Malla Pollack, “The Democratic Public Domain: Reconnecting the Modern First Amendment and the Original Progress Clause (a.k.a. Copyright and Patent Clause),” Jurimetrics 45 (2004): 23–40. A rich and thought-provoking account of the way that ideas of intellectual property worked themselves out in the context of the corporate workplace can be found in Catherine Fisk, Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800–1930 (Chapel Hill: University of North Carolina Press, forthcoming 2009). + +Of course, the history of copyright or of intellectual property cannot be confined to the two figures I focus on principally here—Jefferson and Macaulay—nor cannot it be confined to the Anglo-American tradition or to the debates in which Jefferson and Macaulay were participating. Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789–1810 (Berkeley: University of California Press, 1991), is vital reading to understand the parallels between the Anglo-American and droits d’auteur tradition. It is also fascinating reading. For studies of the broader intellectual climate, I recommend Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (New York: Columbia University Press, 1994); Peter Jaszi, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’ ” Duke Law Journal 1991, no. 2: 455–502; Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993); Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, Tenn.: Vanderbilt University Press, 1968). The British debates at the time of Macaulay are beautifully captured in Catherine Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge, U.K.: Cambridge University Press, 1999). (It should be noted that, while sympathetic, she is less moved than I by Macaulay’s arguments.) + +Any collection of historical works this rich and complex resists summary description—nevertheless, I think it is fair to say that the vast majority of these works stress the centrality of the skeptical “antimonopolist” attitudes I use Jefferson and Macaulay to represent to the history of intellectual property. This does not mean there is unanimity or anything close to it. In particular, Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1012, which came to light late in the writing of this book, offers a thoughtful historical account that criticizes the tendency to use Jefferson’s views as representative of a dominant strand in American intellectual property. My agreements and disagreements with Mossoff’s arguments are discussed fully later in the notes to this chapter. The central point, however, and the single strongest argument against those who would instead attempt to construct a more absolutist, physicalist or labor-based theory of intellectual property, is the problem of limits. Where does one stop? How can one put a limit on the potentially absolute claim over some intellectual creation? How can one specify the limits on prior creators that actually give me ownership over what I create, for I surely have built on the works of others? How can one circumscribe the negative effects on speech, life, and culture that the absolutist or maximalist tradition threatens to generate? My ultimate argument is that the purpose-driven, skeptical, antimonopolistic tendencies of Jefferson and Macaulay answer those questions far better than any contending theory, that they represent not merely an intellectual history sadly neglected in today’s political debates, but a practical solution to the inevitable question, “where do you draw the line?” + +1~ Chapter 3: The Second Enclosure Movement + +poem{ + +The law locks up the man or woman +Who steals the goose from off the common +But leaves the greater villain loose +Who steals the common from off the goose. +The law demands that we atone +When we take things we do not own +But leaves the lords and ladies fine +Who take things that are yours and mine. +The poor and wretched don’t escape +If they conspire the law to break; +This must be so but they endure +Those who conspire to make the law. +The law locks up the man or woman +Who steals the goose from off the common +And geese will still a common lack +Till they go and steal it back. + +[Anon.]~{Apart from being anonymous, this poem is extremely hard to date. It probably originates in the enclosure controversies of the eighteenth century. However, the earliest reference to it that I have been able to discover is from 1821. Edward Birch was moved to compose some (fairly poor) verses in response when he reported “seeing the following jeu d’esprit in a Handbill posted up in Plaistow, as a ‘CAUTION’ to prevent persons from supporting the intended inclosure of Hainault or Waltham Forest.” He then quotes a version of the poem. Edward Birch, Tickler Magazine 3 (February 1821), 45. In 1860, “Exon,” a staff writer for the journal Notes and Queries, declares that “the animosity excited against the Inclosure Acts and their authors . . . was almost without precedent: though fifty years and more have passed, the subject is still a sore one in many parishes. . . . I remember some years ago, in hunting over an old library discovering a box full of printed squibs, satires and ballads of the time against the acts and those who were supposed to favor them,—the library having belonged to a gentleman who played an active part on the opposition side.” “Exon,” “Ballads Against Inclosures,” Notes and Queries 9, 2nd series (February 1860): 130–131. He reports finding the poem in that box, and quotes a verse from it. The context of the article makes it appear that the poem itself must date from the late eighteenth century. In other sources, the poem is sometimes dated at 1764, and said to be in response to Sir Charles Pratt’s fencing of common land. See, e.g., Dana A. Freiburger, “John Thompson, English Philomath—A Question of Land Surveying and Astronomy,” n. 15, available at http://www.nd.edu/~histast4/exhibits/papers/Freiburger/. This attribution is widespread and may well be true, but I have been able to discover no contemporary source material that sustains it. By the end of the nineteenth century, the poem was being quoted, sometimes with amusement and sometimes with agreement, on both sides of the Atlantic. See Ezra S. Carr, “Aids and Obstacles to Agriculture on the Pacific-Coast,” in The Patrons of Husbandry on the Pacific Coast (San Francisco: A. L. Bancroft and Co., 1875), 290–291; Edward P. Cheyney, An Introduction to the Industrial and Social History of England (New York: Macmillan, 1901), 219.}~ + +}poem + +In fits and starts from the fifteenth to the nineteenth century, the English “commons” was “enclosed.”~{Although we refer to it as the enclosure movement, it was actually a series of enclosures that started in the fifteenth century and went on, with differing means, ends, and varieties of state involvement, until the nineteenth. See, e.g., J. A. Yelling, Common Field and Enclosure in England, 1450–1850 (Hamden, Conn.: Archon Books, 1977).}~ Enclosure did not necessarily mean physical fencing, though that could happen. More likely, the previously common land was simply converted into private property, generally controlled by a single landholder. + +The poem that begins this chapter is the pithiest condemnation of the process. It manages in a few lines to criticize double standards, expose the controversial nature of property rights, and take a slap at the legitimacy of state power. And it does this all with humor, without jargon, and in rhyming couplets. Academics should take note. Like most criticisms of the enclosure movement, the poem depicts a world of rapacious, state-aided “privatization,” a conversion into private property of something that had formerly been common property or perhaps had been outside the property system altogether. One kind of “stealing” is legal, says the poet, because the state changes the law of property to give the “lords and ladies” a right over an area formerly open to all. But let a commoner steal something and he is locked up. + +The anonymous author was not alone in feeling indignant. Thomas More (one of only two saints to write really good political theory) made similar points, though he used sheep rather than geese in his argument. Writing in the sixteenth century, he had argued that enclosure was not merely unjust in itself but harmful in its consequences: a cause of economic inequality, crime, and social dislocation. In a wonderfully bizarre passage he argues that sheep are a principal cause of theft. Sheep? Why, yes. + +_1 [Y]our sheep that were wont to be so meek and tame, and so small eaters, now, as I hear say, be become so great devourers and so wild, that they eat up, and swallow down the very men themselves. They consume, destroy, and devour whole fields, houses, and cities. + +Who were these sheep? Bizarre Dolly-like clones? Transgenic killer rams? No. More meant only that under the economic lure of the wool trade, the “noblemen and gentlemen” were attempting their own enclosure movement. + +_1 [They] leave no ground for tillage, they enclose all into pastures; they throw down houses; they pluck down towns, and leave nothing standing, but only the church to be made a sheep-house. . . . Therefore that one covetous and insatiable cormorant and very plague of his native country may compass about and enclose many thousand acres of ground together within one pale or hedge, the husbandmen be thrust out of their own.~{Thomas More, Utopia (New York: W. J. Black, 1947), 32.}~ + +The sheep devour all. The dispossessed “husbandmen” now find themselves without land or money and turn instead to theft. In More’s vision, it is all very The Second Enclosure Movement simple. Greed leads to enclosure. Enclosure disrupts the life of the poor farmer. Disruption leads to crime and violence. + +Writing 400 years later, Karl Polanyi echoes More precisely. He calls the enclosure movement “a revolution of the rich against the poor” and goes on to paint it in the most unflattering light. “The lords and nobles were upsetting the social order, breaking down ancient law and custom, sometimes by means of violence, often by pressure and intimidation. They were literally robbing the poor of their share in the common. . . .”~{Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1957), 35. Polanyi continues in the same vein. “The fabric of society was being disrupted. Desolate villages and the ruins of human dwellings testified to the fierceness with which the revolution raged, endangering the defenses of the country, wasting its towns, decimating its population, turning its overburdened soil into dust, harassing its people and turning them from decent husbandmen into a mob of beggars and thieves.” Ibid. See also E. P. Thompson, The Making of the English Working Class (London: V. Gollancz, 1963), 218.}~ And turning them to “beggars and thieves.” The critics of enclosure saw other harms too, though they are harder to classify. They bemoaned the relentless power of market logic to migrate to new areas, disrupting traditional social relationships and perhaps even views of the self, or the relationship of human beings to the environment. Fundamentally, they mourned the loss of a form of life. + +So much for the bad side of the enclosure movement. For many economic historians, everything I have said up to now is the worst kind of sentimental bunk, romanticizing a form of life that was neither comfortable nor noble, and certainly not very egalitarian. The big point about the enclosure movement is that it worked; this innovation in property systems allowed an unparalleled expansion of productive possibilities.~{See generally Lord Ernle, English Farming Past and Present, 6th ed. (Chicago: Quadrangle Books, 1961).}~ By transferring inefficiently managed common land into the hands of a single owner, enclosure escaped the aptly named “tragedy of the commons.” It gave incentives for large-scale investment, allowed control over exploitation, and in general ensured that resources could be put to their most efficient use. Before the enclosure movement, the feudal lord would not invest in drainage systems, sheep purchases, or crop rotation that might increase yields from the common—he knew all too well that the fruits of his labor could be appropriated by others. The strong private property rights and single-entity control that were introduced in the enclosure movement avoid the tragedies of overuse and underinvestment: more grain will be grown, more sheep raised, consumers will benefit, and fewer people will starve in the long run.~{For an excellent summary of the views of Hobbes, Locke, and Blackstone on these points, see Hannibal Travis, “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment,” Berkeley Technology Law Journal 15 (2000): 789–803.}~ + +If the price of this social gain is a greater concentration of economic power, the introduction of market forces into areas where they previously had not been so obvious, or the disruption of a modus vivendi with the environment—then, enclosure’s defenders say, so be it! In their view, the agricultural surplus produced by enclosure helped to save a society devastated by the mass deaths of the sixteenth century. Those who weep over the terrible effects of private property should realize that it literally saves lives. + +Now it is worth noting that while this view was once unchallenged,~{More recent accounts which argue that enclosure led to productivity gains tend to be more qualified in their praise. Compare the more positive account given in Ernle, English Farming, with Michael Turner, “English Open Fields and Enclosures: Retardation or Productivity Improvements,” Journal of Economic History 46 (1986): 688: “Enclosure cannot be seen as the automatic open door to this cycle of agricultural improvement, but the foregoing estimates do suggest that perhaps it was a door which opened frequently, and with profit.”}~ recent scholarship has thrown some doubts on the effects of enclosure on agricultural production.~{Most notably work by Robert C. Allen: “The Efficiency and Distributional Consequences of Eighteenth Century Enclosures,” The Economic Journal 92 (1982): 937–953; Enclosure and The Yeoman (New York: Oxford University Press, 1992). Allen argues that the enclosure movement produced major distributional consequences, but little observable efficiency gain. The pie was carved up differently, to the advantage of the landlords, but made no larger. In contrast, Turner sees enclosure as one possible, though not a necessary, route to productivity gains (“English Open Fields,” 688). Donald McCloskey’s work also argues for efficiency gains from enclosure, largely from the evidence provided by rent increases. Donald N. McCloskey, “The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century,” Journal of Economic History 32 (1972): 15–35; “The Prudent Peasant: New Findings on Open Fields,” Journal of Economic History 51 (1991): 343–355. In Allen’s view, however, the increase in rents was largely a measure of the way that changes in legal rights altered the bargaining power of the parties and the cultural context of rent negotiations; enclosure allowed landlords to capture more of the existing surplus produced by the land, rather than dramatically expanding it. “[T]he enclosure movement itself might be regarded as the first state sponsored land reform. Like so many since, it was justified with efficiency arguments, while its main effect (according to the data analysed here) was to redistribute income to already rich landowners.” Allen, “Eighteenth Century Enclosures,” 950–951.}~ Some scholars argue that the commons was actually better run than the defenders of enclosure admit.~{The possibility of producing “order without law” and thus sometimes governing the commons without tragedy has also fascinated scholars of contemporary land use. Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, Mass.: Harvard University Press, 1991); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990).}~ Thus, while enclosure did produce the changes in the distribution of wealth that so incensed an earlier generation of critical historians, they argue that there are significant questions about whether it led to greater efficiency or innovation. The pie was carved up differently, but did it get bigger? The debate about these issues is little known, however, outside the world of economic historians. “Everyone” knows that a commons is by definition tragic and that the logic of enclosure is as true today as it was in the fifteenth century. I will not get involved in this debate. Assume for the sake of argument that enclosure did indeed produce a surge in agriculture. Assume, in other words, that converting the commons into private property saved lives. This is the logic of enclosure. It is a powerful argument, but it is not always right. + +This is all very well, but what does it have to do with intellectual property? I hope the answer is obvious. The argument of this book is that we are in the middle of a second enclosure movement. While it sounds grandiloquent to call it “the enclosure of the intangible commons of the mind,” in a very real sense that is just what it is.~{The analogy to the enclosure movement has been too succulent to resist. To my knowledge, Ben Kaplan, Pamela Samuelson, Yochai Benkler, David Lange, Christopher May, David Bollier, and Keith Aoki have all employed the trope, as I myself have on previous occasions. For a particularly thoughtful and careful development of the parallel between the two enclosure movements, see Travis, “Pirates of the Information Infrastructure.”}~ True, the new state-created property rights may be “intellectual” rather than “real,” but once again things that were formerly thought of as common property, or as “uncommodifiable,” or outside the market altogether, are being covered with new, or newly extended, property rights. + +Take the human genome as an example. Again, the supporters of enclosure have argued that the state was right to step in and extend the reach of property rights; that only thus could we guarantee the kind of investment of time, ingenuity, and capital necessary to produce new drugs and gene therapies.~{See, e.g., William A. Haseltine, “The Case for Gene Patents,” Technology Review (September 2000): 59, available at http://www.technologyreview.com/articles/haseltine0900.asp; cf. Alexander K. Haas, “The Wellcome Trust’s Disclosures of Gene Sequence Data into the Public Domain & the Potential for Proprietary Rights in the Human Genome,” Berkeley Technology Law Journal 16 (2001): 145–164.}~ To the question, “Should there be patents over human genes?” the supporters of enclosure would answer that private property saves lives.~{See, e.g., Haseltine, “The Case for Gene Patents”; Biotechnology Industry Association, “Genentech, Incyte Genomics Tell House Subcommittee Gene Patents Essential for Medical Progress,” available at http://www.bio.org/news/newsitem.asp?id=2000_0713_01. }~ The opponents of enclosure have claimed that the human genome belongs to everyone, that it is literally the common heritage of humankind, that it should not and perhaps in some sense cannot be owned, and that the consequences of turning over the human genome to private property rights will be dreadful, as market logic invades areas which should be the farthest from the market. In stories about stem cell and gene sequence patents, critics have mused darkly about the way in which the state is handing over monopoly power to a few individuals and corporations, potentially introducing bottlenecks and coordination costs that slow down innovation.~{See, e.g., Howard Markel, “Patents Could Block the Way to a Cure,” New York Times (August 24, 2001), A19. For the general background to these arguments, see Rebecca S. Eisenberg, “Patenting the Human Genome,” Emory Law Journal 39 (1990): 740–744.}~ + +Alongside these accounts of the beneficiaries of the new property scheme run news stories about those who were not so fortunate, the commoners of the genetic enclosure. Law students across America read Moore v. Regents of University of California, a California Supreme Court case deciding that Mr. Moore had no property interest in the cells derived from his spleen.~{793 P.2d 479, 488–497 (Cal. 1990).}~ The court tells us that giving private property rights to “sources” would slow the freewheeling practice researchers have of sharing their cell lines with all and sundry.~{Ibid., 493–494. One imagines Styrofoam coolers criss-crossing the country by FedEx in an orgy of communistic flesh-swapping.}~ The doctors whose inventive genius created a billion-dollar cell line from Mr. Moore’s “naturally occurring raw material,” by contrast, are granted a patent. Private property rights here, by contrast, are a necessary incentive to research.~{Ibid., 493.}~ Economists on both sides of the enclosure debate concentrate on the efficient allocation of rights. Popular discussion, on the other hand, doubtless demonstrating a reprehensible lack of rigor, returns again and again to more naturalistic assumptions such as the essentially “common” quality of the property involved or the idea that one owns one’s own body.~{I might be suspected of anti-economist irony here. In truth, neither side’s arguments are fully satisfying. It is easy to agree with Richard Posner that the language of economics offers a “thin and unsatisfactory epistemology” through which to understand the world. Richard Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990): xiv (quoting Paul Bator, “The Judicial Universe of Judge Richard Posner,” University of Chicago Law Review 52 (1985): 1161). On the other hand, explaining what it means to “own one’s own body,” or specifying the noncommodifiable limits on the market, turns out to be a remarkably tricky business, as Margaret Jane Radin has shown with great elegance in Contested Commodities (Cambridge, Mass.: Harvard University Press, 1996).}~ + +The genome is not the only area to be partially “enclosed” during this second enclosure movement. The expansion of intellectual property rights has been remarkable—from business method patents, to the Digital Millennium Copyright Act, to trademark “anti-dilution” rulings, to the European Database Protection Directive.~{Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, 1996 Official Journal of the European Union (L 77) 20, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML [Ed. note: originally published as http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html, the link has been changed].}~ The old limits to intellectual property rights—the antierosion walls around the public domain—are also under attack. The annual process of updating my syllabus for a basic intellectual property course provides a nice snapshot of what is going on. I can wax nostalgic looking back to a five-year-old text, with its confident list of subject matter that intellectual property rights could not cover, the privileges that circumscribed the rights that did exist, and the length of time before a work falls into the public domain. In each case, the limits have been eaten away. + +2~ How Much of the Intangible Commons Should We Enclose? + +So far I have argued that there are profound similarities between the first enclosure movement and our contemporary expansion of intellectual property, which I call the second enclosure movement. Once again, the critics and proponents of enclosure are locked in battle, hurling at each other incommensurable claims about innovation, efficiency, traditional values, the boundaries of the market, the saving of lives, the loss of familiar liberties. Once again, opposition to enclosure is portrayed as economically illiterate: the beneficiaries of enclosure telling us that an expansion of property rights is needed in order to fuel progress. Indeed, the post-Cold War “Washington consensus” is invoked to claim that the lesson of history itself is that the only way to get growth and efficiency is through markets; property rights, surely, are the sine qua non of markets.~{The phrase “Washington consensus” originated in John Williamson, “What Washington Means by Policy Reform,” in Latin American Adjustment: How Much Has Happened? ed. John Williamson (Washington, D.C.: Institute for International Economics, 1990). Over time it has come to be used as shorthand for a neoliberal view of economic policy that puts its faith in deregulation, privatization, and the creation and defense of secure property rights as the cure for all ills. (See Joseph Stiglitz, “The World Bank at the Millennium,” Economic Journal 109 [1999]: 577–597.) It has thus become linked to the triumphalist neoliberal account of the end of history and the victory of unregulated markets: see Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). Neither of these two results are, to be fair, what its creator intended. See John Williamson, “What Should the Bank Think about the Washington Consensus?” Institute for International Economics (July 1999), available at http://www.iie.com/publications/papers/paper.cfm?ResearchID=351. }~ + +This faith in enclosure is rooted in a correspondingly deep pessimism about the possibility of managing resources that are either commonly owned or owned by no one. If all have the right to graze their herds on common land, what incentive does anyone have to hold back? My attempt to safeguard the future of the pasture will simply be undercut by others anxious to get theirs while the getting is good. Soon the pasture will be overgrazed and all our flocks will go hungry. In a 1968 article, Garrett Hardin came up with the phrase that would become shorthand for the idea that there were inherent problems with collectively managed resources: “the tragedy of the commons.”~{Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248.}~ The phrase, more so than the actual arguments in his article, has come to exercise considerable power over our policies today. Private property—enclosure—is portrayed as the happy ending for the tragedy of the commons: when policy makers see a resource that is unowned, they tend to reach reflexively for “the solving idea of property.” According to this view, enclosure is not a “revolution of the rich against the poor,” it is a revolution to save the waste of socially vital resources. To say that some social resource is not owned by an individual, that it is free as the air to common use, is automatically to conjure up the idea that it is being wasted. + +But if there are similarities between our two enclosures, there are also profound dissimilarities; the networked commons of the mind has many different characteristics from the grassy commons of Old England.~{The differences are particularly strong in the arguments over “desert”—are these property rights deserved or are they simply violations of the public trust, privatizations of the commons? For example, some would say that we never had the same traditional claims over the genetic commons that the victims of the first enclosure movement had over theirs; this is more like newly discovered frontier land, or perhaps even privately drained marshland, than it is like well-known common land that all have traditionally used. In this case, the enclosers can claim (though their claims are disputed) that they discovered or perhaps simply made usable the territory they seek to own. The opponents of gene patenting, on the other hand, turn more frequently than the farmers of the eighteenth century to religious and ethical arguments about the sanctity of life and the incompatibility of property with living systems. These arguments, or the appeals to free speech that dominate debates over digital intellectual property, have no precise analogue in debates over hunting or pasturage, though again there are common themes. For example, we are already seeing nostalgic laments of the loss of the immemorial rights of Internet users. At the same time, the old language of property law is turned to this more evanescent subject matter; a favorite title of mine is I. Trotter Hardy, “The Ancient Doctrine of Trespass to Web Sites,” 1996, art. 7, Journal of Online Law art. 7, available at http://www.wm.edu/law/publications/jol/95_96/hardy.html. }~ I want to concentrate here on two key differences between the intellectual commons and the commons of the first enclosure movement, differences that should lead us to question whether this commons is truly tragic and to ask whether stronger intellectual property rights really are the solution to our problems. These differences are well known, indeed they are the starting point for most intellectual property law, a starting point that Jefferson and Macaulay have already laid out for us. Nevertheless, reflection on them might help to explain both the problems and the stakes in the current wave of expansion. + +Unlike the earthy commons, the commons of the mind is generally “nonrival.” Many uses of land are mutually exclusive: if I am using the field for grazing, it may interfere with your plans to use it for growing crops. By contrast, a gene sequence, an MP3 file, or an image may be used by multiple parties; my The Second Enclosure Movement use does not interfere with yours. To simplify a complicated analysis, this means that the threat of overuse of fields and fisheries is generally not a problem with the informational or innovational commons.~{The exceptions to this statement turn out to be fascinating. In the interest of brevity, however, I will ignore them entirely.}~ Thus, one type of tragedy of the commons is avoided. + +The concerns in the informational commons have to do with a different kind of collective action problem: the problem of incentives to create the resource in the first place. The difficulty comes from the assumption that information goods are not only nonrival (uses do not interfere with each other), but also nonexcludable (it is impossible, or at least hard, to stop one unit of the good from satisfying an infinite number of users at zero marginal cost). Pirates will copy the song, the mousetrap, the drug formula, the brand. The rest of the argument is well known. Lacking an ability to exclude, creators will be unable to charge for their creations; there will be inadequate incentives to create. Thus, the law must step in and create a limited monopoly called an intellectual property right. + +How about the argument that the increasing importance of information-intensive products to the world economy means that protection must increase? Must the information commons be enclosed because it is now a more important sector of economic activity?~{Remember, I am talking here about increases in the level of rights: protecting new subject matter for longer periods of time, criminalizing certain technologies, making it illegal to cut through digital fences even if they have the effect of foreclosing previously lawful uses, and so on. Each of these has the effect of diminishing the public domain in the name of national economic policy.}~ This was certainly one of the arguments for the first enclosure movement. For example, during the Napoleonic Wars enclosure was defended as a necessary method of increasing the efficiency of agricultural production, now a vital sector of a wartime economy. + +Here we come to another big difference between the commons of the mind and the earthy commons. As has frequently been pointed out, information products are often made up of fragments of other information products; your information output is someone else’s information input.~{James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 29; William M. Landes and Richard A. Posner, “Economic Analysis of Copyright Law,” Journal of Legal Studies 18 (1989): 325; Pamela Samuelson and Suzanne Scotchmer, “The Law & Economics of Reverse Engineering,” Yale Law Journal 111 (2002): 1575–1664; Jessica Litman, “The Public Domain,” Emory Law Journal 39 (1990): 1010–1011.}~ These inputs may be snippets of code, discoveries, prior research, images, genres of work, cultural references, or databases of single nucleotide polymorphisms—each is raw material for future innovation. Every increase in protection raises the cost of, or reduces access to, the raw material from which you might have built those future products. The balance is a delicate one; one Nobel Prize-winning economist has claimed that it is actually impossible to strike that balance so as to produce an informationally efficient market.~{Sanford J. Grossman and Joseph E. Stiglitz, “On the Impossibility of Informationally Efficient Markets,” American Economic Review 70 (1980): 404.}~ + +Whether or not it is impossible in theory, it is surely a difficult problem in practice. In other words, even if enclosure of the arable commons always produced gains (itself a subject of debate), enclosure of the information commons clearly has the potential to harm innovation as well as to support it.~{For a more technical account, see James Boyle, “Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property,” Vanderbilt Law Review 53 (2000): 2007–2039.}~ More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation—sometimes just the opposite is true. It may be that intellectual property rights slow down innovation, by putting multiple roadblocks in the way of subsequent innovation.~{The most recent example of this phenomenon is multiple legal roadblocks in bringing GoldenRice™ to market. For a fascinating study of the various issues involved and the strategies for working around them, see R. David Kryder, Stanley P. Kowalski, and Anatole F. Krattiger, “The Intellectual and Technical Property Components of Pro-Vitamin A Rice (GoldenRice™): A Preliminary Freedom-to-Operate Review,” ISAAA Briefs No. 20 (2000), available at http://www.isaaa.org/Briefs/20/briefs.htm. In assessing the economic effects of patents, one has to balance the delays and increased costs caused by the web of property rights against the benefits to society of the incentives to innovation, the requirement of disclosure, and the eventual access to the patented subject matter. When the qualification levels for patents are set too low, the benefits are minuscule and the costs very high—the web of property rights is particularly tangled, complicating follow-on innovation, the monopoly goes to “buy” a very low level of inventiveness, and the disclosure is of little value.}~ Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects—the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation—as “the tragedy of the anticommons.”~{Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998): 698–701.}~ + +In short, even if the enclosure movement was a complete success, there are important reasons to believe that the intangible world is less clearly a candidate for enclosure, that we should pause, study the balance between the world of the owned and the world of the free, gather evidence. After all, even in physical space, “common” property such as roads increases the value of the surrounding private tracts. If there are limits to the virtues of enclosure even there, how much more so in a world of intangible and nonrival goods, which develop by drawing on prior creations? Yet the second enclosure movement proceeds confidently nevertheless—with little argument and less evidence. + +To be sure, there is a danger of overstatement. The very fact that the changes have been so one-sided makes it hard to resist exaggerating their impact. In 1918, Justice Brandeis confidently claimed that “[t]he general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”~{Int’l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).}~ That baseline—intellectual property rights are the exception rather than the norm; ideas and facts must always remain in the public domain—is still supposed to be our starting point.~{Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354, 361, 424.}~ It is, however, under attack. + +Both overtly and covertly, the commons of facts and ideas is being enclosed. Patents are increasingly stretched to cover “ideas” that twenty years ago all scholars would have agreed were unpatentable.~{The so-called “business method” patents, which cover such “inventions” as auctions or accounting methods, are an obvious example. See, e.g., State St. Bank & Trust Co. v. Signature Fin. Group, Inc. , 149 F.3d 1368, 1373 (Fed. Cir. 1998).}~ Most troubling of all are the attempts to introduce intellectual property rights over mere compilations of facts.~{Database Investment and Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); Collections of Information Antipiracy Act, S 2291, 105th Cong. (1998).}~ If U.S. intellectual property law had an article of faith, it was that unoriginal compilations of facts would remain in the public domain, that this availability of the raw material of science and speech was as important to the next generation of innovation as the intellectual property rights themselves.~{See, e.g., Feist Publications v. Rural Tel. Serv. Co. , 499 U.S. 340, 350 (1991): “Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted.” To hold otherwise “distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of ‘writings’ by ‘authors.’ ” Ibid., at 354.}~ The system would hand out monopolies in inventions and in original expression, while the facts below (and ideas above) would remain free for all to build upon. But this premise is being undermined. Some of the challenges are subtle: in patent law, stretched interpretations of novelty and nonobviousness allow intellectual property rights to move closer and closer to the underlying data layer; gene sequence patents come very close to being rights over a particular discovered arrangement of data—C’s, G’s, A’s, and T’s.~{See Eisenberg, “Patenting the Human Genome”; Haas, “Wellcome Trust’s Disclosures.”}~ Other challenges are overt: the European Database Protection Directive did (and various proposed bills in the United States would) create proprietary rights over compilations of facts, often without even the carefully framed exceptions of the copyright scheme, such as the usefully protean category of fair use. + +The older strategy of intellectual property law was a “braided” one: thread a thin layer of intellectual property rights around a commons of material from which future creators would draw.~{Those who prefer topographical metaphors might imagine a quilted pattern of public and private land, with legal rules specifying that certain areas, beaches say, can never be privately owned, and accompanying rules giving public rights of way through private land if there is a danger that access to the commons might otherwise be blocked.}~ Even that thin layer of intellectual property rights was limited so as to allow access to the material when that was necessary to further the goals of the system. Fair use allows for parody, commentary, and criticism, and also for “decompilation” of computer programs so that Microsoft’s competitors can reverse engineer Word’s features in order to make sure their program can convert Word files. It may sound paradoxical, but in a very real sense protection of the commons was one of the fundamental goals of intellectual property law. + +In the new vision of intellectual property, however, property should be extended everywhere; more is better. Expanding patentable and copyrightable subject matter, lengthening the copyright term, giving legal protection to “digital barbed wire,” even if it is used to prevent fair use: each of these can be understood as a vote of no confidence in the productive powers of the commons. We seem to be shifting from Brandeis’s assumption that the “noblest of human productions are free as the air to common use” to the assumption that any commons is inefficient, if not tragic. + +The expansion is more than a formal one. It used to be relatively hard to violate an intellectual property right. The technologies of reproduction or the activities necessary to infringe were largely, though not entirely, industrial. Imagine someone walking up to you in 1950, handing you a book or a record or a movie reel, and saying “Quick! Do something the law of intellectual property might forbid.” (This, I admit, is a scenario only likely to come to the mind of a person in my line of work.) You would have been hard-pressed to do so. Perhaps you could find a balky mimeograph machine, or press a reel-to-reel tape recorder into use. You might manage a single unauthorized showing of the movie—though to how many people? But triggering the law of intellectual property would be genuinely difficult. Like an antitank mine, it would not be triggered by the footsteps of individuals. It was reserved for bigger game. + +This was no accident. The law of intellectual property placed its triggers at the point where commercial activity by competitors could undercut the exploitation of markets by the rights holder. Copying, performance, distribution—these were things done by other industrial entities who were in competition with the owner of the rights: other publishers, movie theaters, distributors, manufacturers. In practice, if not theory, the law was ptal industry regulation of unfair competition—made by the people in the affected industries for the people in the affected industries. The latter point is worth stressing. Congress would, and still does, literally hand over the lawmaking process to the industries involved, telling them to draft their intra-industry contract in the form of a law, and then to return to Congress to have it enacted. The public was not at the table, needless to say, and the assumption was that to the extent there was a public interest involved in intellectual property law, it was in making sure that the industries involved got their act together, so that the flow of new books and drugs and movies would continue. Members of the public, in other words, were generally thought of as passive consumers of finished products produced under a form of intra-industry regulation that rarely implicated any act that an ordinary person would want, or be able, to engage in. + +In the world of the 1950s, these assumptions make some sense—though we might still disagree with the definition of the public interest. It was assumed by many that copyright need not and probably should not regulate private, noncommercial acts. The person who lends a book to a friend or takes a chapter into class is very different from the company with a printing press that chooses to reproduce ten thousand copies and sell them. The photocopier and the VCR make that distinction fuzzier, and the networked computer threatens to erase it altogether. + +So how are things different today? If you are a person who routinely uses computers, the Internet, or digital media, imagine a day when you do not create—intentionally and unintentionally—hundreds of temporary, evanescent copies. (If you doubt this, look in the cache of your browser.) Is there a day when you do not “distribute” or retransmit fragments of articles you have read, when you do not seek to share with friends some image or tune? Is there a day when you do not rework for your job, for your class work, or simply for pastiche or fun, some of the digital material around you? In a networked society, copying is not only easy, it is a necessary part of transmission, storage, caching, and, some would claim, even reading.~{See Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001).}~ + +As bioinformatics blurs the line between computer modeling and biological research, digital production techniques blur the lines between listening, editing, and remaking. “Rip, mix, and burn,” says the Apple advertisement. It marks a world in which the old regime of intellectual property, operating upstream as a form of industrial competition policy, has been replaced. Intellectual property is now in and on the desktop and is implicated in routine creative, communicative, and just plain consumptive acts that each of us performs every day. Suddenly, the triggers of copyright—reproduction, distribution—can be activated by individual footsteps. + +Of course, we would hope that in your daily actions you scrupulously observed the rights—all the rights—of the companies that have interests in the texts, tunes, images of celebrities, trademarks, business method patents, and fragments of computer code you dealt with. Did you? Can you be sure? I teach intellectual property, but I admit to some uncertainty. I would not have imagined that a temporary image of a Web page captured in the cache of my browser counted as a “copy” for the purposes of copyright law.~{See James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard Journal of Law & Technology 10 (1996): 47–112.}~ I would have thought that it was fair use for a company to photocopy articles in journals it subscribed to, and paid for, in order to circulate them to its researchers.~{American Geophysical Union v. Texaco, 37 F.3d 882 (2nd Cir. 1994).}~ If a conservative Web site reposted news articles from liberal newspapers with critical commentary, that, too, would have seemed like fair use.~{Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000).}~ I would have thought that it was beneficial competition, and not a trespass, for an electronic “aggregator” to gather together auction prices or airline fares, so as to give consumers more choice.~{eBay, Inc. v. Bidder’s Edge, Inc. , 100 F. Supp. 2d 1058 (N.D. Cal. 2000).}~ I would not have thought that a search engine that catalogued and displayed in framed format the digital graphics found on the Internet would be sued for infringing the copyrights of the owners of those images.~{Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). After initially holding that while thumbnails were fair use, inline links that displayed pictures were not fair use, the court reversed itself and found fair use in both instances.}~ I would not have thought that I might be sued for violating intellectual property law if I tried to compete with a printer company by making toner cartridges that were compatible with its printers.~{After a District Court issued a temporary injunction telling Static Controls that it must cease manufacturing generic toner cartridges that operated in Lexmark printers—indicating it was likely to be found to be violating the Digital Millennium Copyright Act’s “anti-circumvention” provisions—the Appeals Court held that such cartridges did not in fact violate the DMCA. Lexmark International, Inc. v. Static Control Components, Inc. , 387 F.3d 522 (6th Cir. 2004).}~ + +The examples go on. I know that the “research exemption” in U.S. patent law is very tightly limited, but I would have laughed if you had told me that even a research university was forbidden from doing research unless that research had no conceivable practical or academic worth—in other words that even in academia, in a project with no commercial goal, the research exemption only covered research that was completely pointless.~{Madey v. Duke Univ. , 307 F.3d 1351 (Fed. Cir. 2003), cert. denied, 539 U.S. 958 (2003).}~ Why have an exemption at all, in that case? I would have told an academic cryptography researcher that he need not fear legal threats from copyright owners simply for researching and publishing work on the vulnerabilities of copy protection schemes.~{“When scientists from Princeton University and Rice University tried to publish their findings [on the vulnerabilities in a copy protection scheme] in April 2001, the recording industry claimed that the 1998 Digital Millennium Copyright Act (DMCA) makes it illegal to discuss or provide technology that might be used to bypass industry controls limiting how consumers can use music they have purchased. ‘Studying digital access technologies and publishing the research for our colleagues are both fundamental to the progress of science and academic freedom,’ stated Princeton scientist Edward Felten. ‘The recording industry’s interpretation of the DMCA would make scientific progress on this important topic illegal.’ . . .
“SDMI sponsored the ‘SDMI Public Challenge’ in September 2000, asking Netizens to try to break their favored watermark schemes, designed to control consumer access to digital music. When the scientists’ paper about their successful defeat of the watermarks, including one developed by a company called Verance, was accepted for publication, Matt Oppenheim, an officer of both RIAA and SDMI, sent the Princeton professor a letter threatening legal liability if the scientist published his results.” “EFF Media Release: Princeton Scientists Sue Over Squelched Research,” available at http://w2.eff.org/IP/DMCA/Felten_v_RIAA/20010606_eff_felten_pr.html. After a First Amendment challenge to the relevant provisions of the DMCA, the threats were withdrawn.}~ I would not have thought that one could patent the idea of having an electronic Dutch auction on the Internet, working out the daily prices of a bundle of mutual funds through simple arithmetic, or buying something online with one click.~{See, e.g., Robert P. Merges, “As Many as Six Impossible Patents before Breakfast: Property Rights for Business Concepts and Patent System Reform,” Berkeley Technology Law Journal 14 (1999): 615.}~ I would have assumed that celebrities’ rights to control their images should end with their deaths, and that courts would agree that those rights were tightly limited by the First Amendment. Yet, in each of these cases, I would have been wrong, or at least I might be wrong—enough that a sane person would worry. Not all of the expansive claims eventually triumphed, of course, but some did. Guessing which would and which would not was hard even for me, though, as I said, I teach intellectual property law. You, probably, do not. + +In 1950 none of this would have mattered. Unless you were in some related business—as a publisher, broadcaster, film distributor, or what have you—it would have been hard for you to trigger the rules of intellectual property law. If you were in such a business, you were probably very familiar with the rules that governed your activities and well represented by corporate counsel who knew them even better. What’s more, the rules were neither as complex nor as counterintuitive as they are now. They also did not reach as far. The reach of the rights has been expanded, and their content made more difficult to understand, at the exact moment that their practical effect has been transformed. It is not merely that the triggers of intellectual property law can easily be set off by individual footsteps. There are now many more triggers and their trip wires are harder to see. + +From the point of view of the content industries, of course, all this is foolishness. It is not some undesirable accident that intellectual property has come to regulate personal, noncommercial activity. It is absolutely necessary. Think of Napster. When individuals engaging in noncommercial activity have the ability to threaten the music or film industry’s business plan by engaging in the very acts that copyright law always regulated—namely reproduction and distribution—of course it is appropriate for them, and the networks they “share” on, to be subject to liability. What’s more, to the extent that copying becomes cheaper and easier, it is necessary for us to strengthen intellectual property rights. We must meet the greater danger of copying with more expansive rights, harsher penalties, and expanded protections, some of which may indeed have the practical effect of reducing rights that citizens thought they had, such as fair use, low-level noncommercial sharing among personal friends, resale, and so on. Without an increase in private property rights, in other words, cheaper copying will eat the heart out of our creative and cultural industries. I call this claim the Internet Threat. + +2~ Chapter 3: Further Reading + +The endnotes to this chapter supply copious particular references; this page provides the overview. Those seeking to understand the various methods by which different aspects of common land were enclosed over a 400 year history in England should start with J. A. Yelling, Common Field and Enclosure in England, 1450–1850 (Hamden, Conn.: Archon Books, 1977). Thomas More, Utopia (New York: W. J. Black, 1947), provides a harsh criticism of the enclosure movement, one that is echoed hundreds of years later by Polanyi: Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1957). Economic historians have generally believed that the enclosure movement yielded considerable efficiency gains—bringing under centralized control and management, property that had previously been inefficiently managed under a regime of common access. When efficiency gains mean higher productivity so that fewer people starve, this is no small thing. Donald N. McCloskey, “The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century,” Journal of Economic History 32 (1972): 15–35; “The Prudent Peasant: New Findings on Open Fields,” Journal of Economic History 51 (1991): 343–355. This argument seems plausible, but it has recently received powerful challenges, for example, that by Robert C. Allen, Enclosure and the Yeoman (New York: Oxford University Press, 1992). + +In the twentieth century, the negative effects of open access or common ownership received an environmental gloss thanks to the work of Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248. However, work by scholars such as Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990), and Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property,” University of Chicago Law Review 53 (1986): 711–781, have introduced considerable nuance to this idea. Some resources may be more efficiently used if they are held in common. In addition, nonlegal, customary, and norm-based forms of “regulation” often act to mitigate the theoretical dangers of overuse or under-investment. + +Beyond the theoretical and historical arguments about the effects of enclosure on real property lie the question of how well those arguments translate to the world of the intangible and intellectual. It is that question which this chapter raises. Christopher May, A Global Political Economy of Intellectual Property Rights: The New Enclosures? (London: Routledge, 2000) offers a similar analogy—as do several other articles cited in the text. The key differences obviously lie in the features of intellectual property identified in the earlier chapters—its nonrivalrousness and nonexcludability—and on the ways in which a commons of cultural, scientific, and technical information has been central to the operation of both liberal democracy and capitalist economy. I owe the latter point particularly to Richard Nelson, whose work on the economics of innovation amply repays further study: Richard Nelson, Technology, Institutions, and Economic Growth (Cambridge, Mass.: Harvard University Press, 2005). + +1~ Chapter 4: The Internet Threat + +The conventional wisdom is that governments respond slowly to technological change. In the case of the Internet, nothing could be further from the truth. In 1994 and 1995, “dot-com” was still a mystical term for many. Most stories about the Internet dealt with sexual predation rather than possibilities of extreme wealth. Internet commerce itself was barely an idea, and some of the most exciting sites on the Web had pictures of coffeepots in university departments far away. (“See,” one would proudly say to a technological neophyte friend when introducing him to the wonders of the Net, “the pot is empty and we can see that live from here! This changes everything!”) It was an innocent time. Yet the U.S. government was already turning the wheels of intellectual property policy to respond to the threat (and promise) of the Internet. More precisely, they were trying to shape the future of the cumbersomely named “National Information Infrastructure,” the official name for the “information superhighway” that it was presumed would replace the “immature” technology of the Net. The government was wrong about that, and about a lot else. + +The blueprint for new intellectual property policy online came from the Patent and Trademark Office. That office promulgated first a Green Paper and then, after further hearings, a White Paper, on “Intellectual Property and the National Information Infrastructure.”~{For the background to these documents see James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard Journal of Law & Technology 10 (1996): 47–112; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001).}~ As policy and legal documents these are in one sense long out of date. Some of their legal arguments were successfully challenged. Some of their most important proposals were rejected, while many others have become law. But as a starting point from which to trace the frame of mind that has come to dominate intellectual property policy online, they are hard to equal. + +These documents contained proposals that nowadays would be seen as fairly controversial. Internet service providers were said to be “strictly liable” for copyright violations committed by their subscribers; that is to say, they were legally responsible whether or not they knew about the violation or were at fault in any way. Loading a document into your browser’s transient cache memory while reading it was said to be making a “copy.” There was more: the beginnings of what later became the Digital Millennium Copyright Act,~{Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5,17, 28, and 35 U.S.C.).}~ making it illegal to cut through the digital fences which content providers put around their products. The attitude toward fair use was particularly revealing. At one point in the White Paper it was hinted that fair use might be a relic of the inconveniences of the analog age, to be discarded now that we could have automated fractional payments for even the most insignificant use.~{Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (Washington, D.C.: Information Infrastructure Task Force, 1995), 73 n. 227. Hereinafter White Paper.}~ (It was noted, however, that some disagreed with this conclusion.) At another point, fair use was described as a “tax” on rights holders and a “subsidy” to those who benefited from it, such as educational institutions.~{White Paper, 84.}~ The White Paper also suggested that while any potential loss to rights holders caused by the new technology needed to be countered with new rights and new protections, any potential gain to them through the new technology was simply theirs. Potential gain did not offset the need to compensate for potential loss + +So what views of intellectual property were we carrying forward into the Internet age? Intellectual property is just like other property. Rights are presumptively absolute. Any limitations on them, such as fair use, are taxes on property owners, subsidies to the society at large. It sounds like a perfect time to administer the Jefferson Warning I sketched out in Chapter 2. After all, Jefferson was specifically warning against each of these errors two hundred years ago. To find them in a student paper would be disappointing—irritating, even. But this document was the blueprint for the intellectual property regime of cyberspace. + +But do these mistakes matter? How important is it that we get the rules of intellectual property right? To me, a number of my colleagues, some librarians, and a few software gurus, the White Paper was more than just a bit of bad policy in a technical field—like a poorly drafted statute about the witnessing of wills, say. When you set up the property rules in some new space, you determine much about the history that follows. Property rules have a huge effect on power relationships and bargaining positions. Think of rules setting out water rights or the right to drive cattle over homesteaders’ land in the American West. But they also are part of a larger way of seeing the world; think of the early-twentieth-century rules treating unions as “conspiracies in restraint of trade” or the Supreme Court decisions that dispossessed the American Indians on the theory that they did not comprehend the concept of property and thus did not “own” the land being taken from them.~{“Congress did not provide that one class in the community could combine to restrain interstate trade and another class could not. . . . It provided that ‘every’ contract, combination or conspiracy in restraint of trade was illegal.” Loewe v. Lawlor, 208 U.S. 274 (1908); “Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness. . . .” Johnson v. M’Intosh, 21 U.S. 543, 590 (1823).}~ We were at a comparable point in the history of cyberspace. What was being set up here was a vision of economy and culture, a frame of mind about how the world of cultural exchange operates, and eventually a blueprint for our systems of communication. At this stage, the range of possibilities is extremely wide. A lot of different choices could be made, but subsequent changes would be harder and harder as people and companies built their activities around the rules that had been laid down. This was, in short, a tipping point where it was particularly important that we make the right decisions. + +Conventional political science told us there were a lot of reasons to fear that we would not make the right decisions. The political process was going to be particularly vulnerable to problems of capture by established industries, many of whom would (rightly) see the Internet as a potential threat to their role as intermediaries between artists and creators on the one hand and the public on the other. + +Intellectual property legislation had always been a cozy world in which the content, publishing, and distribution industries were literally asked to draft the rules by which they would live. The law was treated as a kind of contract between the affected industries. Rationally enough, those industries would wish to use the law not merely to protect their legitimate existing property rights, but to make challenges to their basic business plans illegal. (Imagine what would have happened if we had given the lamp-oil sellers the right to define the rules under which the newfangled electric light companies would operate.) There would be no easy counterweight to these pressures, as Jessica Litman points out in a wonderful set of reflections on copyright lawmaking, because the potential competitors to existing titans were just being born and could thus be strangled safely in their cradles.~{“As the entertainment and information markets have gotten more complicated, the copyright law has gotten longer, more specific, and harder to understand. Neither book publishers nor libraries have any interest in making the library privilege broad enough so that it would be useful to users that aren’t libraries, and neither movie studios nor broadcast stations have any interest in making the broadcaster’s privilege broad enough to be of some use to say, cable television or satellite TV, so that doesn’t happen. Negotiated privileges tend to be very specific, and tend to pose substantial entry barriers to outsiders who can’t be at the negotiating table because their industries haven’t been invented yet. So negotiated copyright statutes have tended, throughout the century, to be kind to the entrenched status quo and hostile to upstart new industries.” Litman, Digital Copyright, 25.}~ Certainly the public would have little grasp as yet of what was at stake. + +In any event, when had the public played a role in intellectual property legislation? That kind of law affected businesses with printing presses or TV towers, not normal citizens. It did not help that the legislators were largely both ignorant and distrustful of the technology of the Internet—which was, at the time, thought to be dominated by foreign hackers, suicidal cults, pirates, and sleazy pornographers. (Terrorists and Nigerian spammers would be added to the mix later.) + +Given an area of law that legislators were happy to hand over to the affected industries and a technology that was both unfamiliar and threatening, the prospects for legislative insight were poor. Lawmakers were assured by lobbyists + +# that this was business as usual, that no dramatic changes were being made by the Green or White papers; or + +# that the technology presented a terrible menace to the American cultural industries, but that prompt and statesmanlike action would save the day; or + +# that layers of new property rights, new private enforcers of those rights, and technological control and surveillance measures were all needed in order to benefit consumers, who would now be able to “purchase culture by the sip rather than by the glass” in a pervasively monitored digital environment. + +In practice, somewhat confusingly, these three arguments would often be combined. Legislators’ statements seemed to suggest that this was a routine Armageddon in which firm, decisive statesmanship was needed to preserve the digital status quo in a profoundly transformative and proconsumer way. Reading the congressional debates was likely to give one conceptual whiplash. + +To make things worse, the press was—in 1995, at least—clueless about these issues. It was not that the newspapers were ignoring the Internet. They were paying attention—obsessive attention in some cases. But as far as the mainstream press was concerned, the story line on the Internet was sex: pornography, online predation, more pornography. The lowbrow press stopped there. To be fair, the highbrow press was also interested in Internet legal issues (the regulation of pornography, the regulation of online predation) and constitutional questions (the First Amendment protection of Internet pornography). Reporters were also asking questions about the social effect of the network (including, among other things, the threats posed by pornography and online predators). + +There were certainly important issues within the areas the press was willing to focus on, and I do not mean to trivialize them. I worked with a couple of civil liberties groups in opposing the hapless Communications Decency Act, one of the most poorly drafted pieces of speech regulation ever to come out of Congress.~{Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560, 561) (1996).}~ It was a palpably unconstitutional statute, eventually struck down by a unanimous Supreme Court.~{Reno v. ACLU, 521 U.S. 844 (1997).}~ Its proposals would have burdened the speech of adults while failing to protect the interests of minors. Reporters loved the topic of the Communications Decency Act. It was about sex, technology, and the First Amendment. It foreshadowed the future of online speech regulation. One could write about it while feeling simultaneously prurient, principled, and prescient: the journalistic trifecta. For law professors who worked on digital issues, the Communications Decency Act was an easy topic to get the public to focus on; we had the reporters and editors calling us, pleading for a quote or an opinion piece. + +Intellectual property was something quite different. It was occasionally covered in the business pages with the same enthusiasm devoted to changes in derivatives rules. Presented with the proposals in the Green and White Papers, the reporters went looking for opinions from the Software Publishers Association, the Recording Industry Association of America, or the Motion Picture Association of America. This was not bias or laziness—to whom else would they go? Who was on the “other side” of these issues? Remember, all of this occurred before Napster was a gleam in Sean Fanning’s eye. Sean Fanning was in middle school. Amazon.com was a new company and “Google” was not yet a verb. + +In this environment, convincing the legislature or the press that fundamental public choices were implicated in the design of intellectual property rights for the digital world was about as easy as convincing them that fundamental public choices were implicated in the rules of tiddlywinks. My own experience is probably representative. I remember trying to pitch an article on the subject to a charming but uncomprehending opinion page editor at the Washington Post. I tried to explain that decisions about property rules would shape the way we thought about the technology. Would the relatively anonymous and decentralized characteristics of the Internet that made it such a powerful tool for global speech and debate come to be seen as a bug rather than a feature, something to be “fixed” to make the Net safe for protected content? The rules would also shape the economic interests that drove future policy. Would we try to build the system around the model of proprietary content dispensed in tightly controlled chunks? Would fair use be made technologically obsolescent? Would we undercut the various nontraditional methods of innovation, such as free software, before they ever managed to establish themselves? What would become of libraries in the digital world, of the ideal that access to books had important differences from access to Twinkies? After I concluded this lengthy and slightly incoherent cri de coeur, there was a long pause; then the editor said politely, “Are you sure you couldn’t make some of these points about a free speech issue, like the Communications Decency Act, maybe?” + +I finally placed the piece in the Washington Times,~{James Boyle, “Overregulating the Internet,” Washington Times (November 14, 1995), A17.}~ which was best known at the time as the only metropolitan newspaper owned by the Unification Church, familiarly referred to as the Moonies. This hardly counted as a direct line to the popular imagination (though the article’s mild criticisms elicited an extraordinary reaction from the Clinton administration’s lead official on intellectual property policy—throwing me for several weeks into a surreal world of secondhand threats, third-party leaks, and a hilarious back-and-forth in the letters page).~{See James Boyle, “The One Thing Government Officials Can’t Do Is Threaten Their Critics,” Washington Times (March 6, 1996), A16.}~ + +Things were not completely one-sided. An unlikely group of critics had formed: librarians, a few software developers, law professors, some Internet libertarians. Of particular note was the Digital Future Coalition, which grew to represent a broad range of interested groups and industries thanks in part to the prescient analysis and remarkable energy of one of my colleagues, Peter Jaszi.~{“The DFC was forged in 1995 in response to the release of the Clinton administration’s White Paper on Intellectual Property and the National Information Infrastructure. The White Paper recommended significantly altering existing copyright law to increase the security of ownership rights for creators of motion pictures, publishers and others in the proprietary community. Members of the DFC recognized that if the policy proposals delineated in the White Paper were implemented, educators, businesses, libraries, consumers and others would be severely restricted in their efforts to take advantage of the benefits of digital networks.” See http://www.dfc.org/dfc1/Learning_Center/about.html. }~ Together with Pamela Samuelson, Jessica Litman, and a number of other distinguished legal scholars, Peter turned his considerable intellectual talents to explaining why writers, telecom companies, scientists, manufacturers of consumer electronics, and a host of other groups should be interested in the rules being debated. There had been a series of official hearings in which complaints were carefully collected and just as carefully ignored. This became harder to do as the critics became more numerous and better organized. Nevertheless, the currents were clearly running against them. It would be nice to say that this was merely because of the clubby history of intellectual property legislation, or the difficulty in getting press attention, or the various issues of industry capture and collective action problems. Yet this would be to miss a vital element of the situation. + +Conventional political science showed that there were structural reasons why the legislative process was likely to succumb to industry capture.~{See the classic account in Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, 2nd ed. (Cambridge, Mass.: Harvard University Press, 1971).}~ The reality turned out to be much worse. The real problem was not a political process dominated by cynical power politics, nor an initial absence of critical newspaper coverage, though both of those factors contributed. The real problem was that most of the proponents of the White Paper’s policies believed their own arguments so deeply and sincerely that they saw any criticism of those positions as either godless communism or hippy digital anarchism. (Frequently, in fact, they clung to their arguments even when there was fairly strong evidence that they would actually be harming themselves by putting these policies into effect. I will expand on this point later.) More importantly, they succeeded in getting their story about the threats and promises of the digital future accepted as the basis for all discussion of intellectual property policy. It became the organizing set of principles, the master narrative—call it what you will. + +The heart of the story is beguilingly simple. The Internet makes copying cheaper and does so on an unparalleled global scale. Therefore we must meet the greater danger of illicit copying with more expansive rights, harsher penalties, and expanded protections. True, as I pointed out before, some of these expansions may indeed have the practical effect of reducing rights that citizens thought they had, such as fair use, low-level noncommercial sharing among personal friends, resale, and so on. But without an increase in private property rights, cheaper copying will eat the heart out of our creative and cultural industries. I call this story the Internet Threat. It is a powerful argument and it deserves some explanation. + +Think back for a moment to the first chapter and the difference between Madame Bovary and the petunia. If the reason for intellectual property rights is the “nonrival” and “nonexcludable” nature of the goods they protect, then surely the lowering of copying and transmission costs implies a corresponding need to increase the strength of intellectual property rights. Imagine a line. At one end sits a monk painstakingly transcribing Aristotle’s Poetics. In the middle lies the Gutenberg printing press. Three-quarters of the way along the line is a photocopying machine. At the far end lies the Internet and the online version of the human genome. At each stage, copying costs are lowered and goods become both less rival and less excludable. My MP3 files are available to anyone in the world running Napster. Songs can be found and copied with ease. The symbolic end of rivalry comes when I am playing the song in Chapel Hill, North Carolina, at the very moment that you are both downloading and listening to it in Kazakhstan—now that is nonrival. + +2~ The Logic of Perfect Control + +My point is that there is a teleology—a theory about how intellectual property law must develop historically—hidden inside the argument I call the Internet Threat. The argument, which is touted endlessly by the content industries—and not without reason—can be reduced to this: The strength of intellectual property rights must vary inversely with the cost of copying. With high copying costs, one needs weak intellectual property rights if any at all. To deal with the monk-copyist, we need no copyright because physical control of the manuscript is enough. What does it matter if I say I will copy your manuscript, if I must do it by hand? How will this present a threat to you? There is no need to create a legal right to exclude others from copying, no need for a “copy right.” As copying costs fall, however, the need to exclude increases. To deal with the Gutenberg press, we need the Statute of Anne—the first copyright statute—and the long evolution of copyright it ushered in. + +But then comes the Internet. To deal with the Internet, we need the Digital Millennium Copyright Act,~{See note 2 above.}~ the No Electronic Theft Act,~{Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as amended in scattered sections of 17 and 18 U.S.C.).}~ the Sonny Bono Copyright Term Extension Act,~{Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered sections of 17 U.S.C.).}~ and perhaps even the Collections of Information Antipiracy Act.~{S 2291, 105th Cong. (1998).}~ As copying costs approach zero, intellectual property rights must approach perfect control. We must strengthen the rights, lengthen the term of the rights, increase the penalties, and make noncommercial illicit copying a crime. We must move outside the traditional realm of copyright altogether to regulate the technology around the copyrighted material. Companies are surrounding their digital materials with digital fences. We must make it a violation of the law to cut those digital fences, even if you do so to make a “fair use” of the material on the other side. We must prohibit the making of things that can be used as fence-cutters—a prospect that worries researchers on encryption. In the long run, we must get rid of the troublesome anonymity of the Internet, requiring each computer to have an individual ID. We must make click-wrap contracts enforceable, even on third parties, even when you cannot read them before clicking—so that you never actually buy the software, music, movies, and e-books you download, merely “license” them for a narrowly defined range of uses. We must create interlocking software and hardware systems that monitor and control the material played on those systems—so that songs can be licensed to particular computers at particular times. Uses that the owners wish to forbid will actually be impossible, whether they are legal or not. + +In other words, we must make this technology of the Internet, which was hailed as the great “technology of freedom,” into a technology of control and surveillance. The possibility of individuals circulating costless perfect digital copies requires it. It would be facile (if tempting) to say we must remake the Internet to make it safe for Britney Spears. The “Internet Threat” argument is that we must remake the Net if we want digital creativity—whether in music or software or movies or e-texts. And since the strength of the property rights varies inversely with the cost of copying, costless copying means that the remade Net must approach perfect control, both in its legal regime and its technical architecture. + +Like any attractive but misleading argument, the Internet Threat has a lot of truth. Ask the software company producing expensive, specialized computer-assisted design programs costing thousands of dollars what happens when the program is made available on a “warez” site or a peer-to-peer file-sharing network. The upstart computer game company pinning its hopes and its capital on a single new game would tell you the same thing. The easy availability of perfect, costless copies is a danger to all kinds of valuable cultural and economic production. The story of the Internet Threat is not wrong, it is simply dramatically incomplete in lots of ways. Here are two of them. + +2~ Costless Copying Brings Both Costs and Benefits + +The Internet does lower the cost of copying and thus the cost of illicit copying. Of course, it also lowers the costs of production, distribution, and advertising, and dramatically increases the size of the potential market. Is the net result a loss to rights holders such that we need to increase protection and control in order to maintain a constant level of incentives? A large, leaky market may actually provide more revenue than a small one over which one’s control is much stronger. What’s more, the same technologies that allow for cheap copying also allow for swift and encyclopedic search engines—the best devices ever invented for detecting illicit copying. What the Net takes away with one hand, it often gives back with the other. Cheaper copying does not merely mean loss, it also means opportunity. Before strengthening intellectual property rights, we would need to know whether the loss was greater than the gain and whether revised business models and new distribution mechanisms could avoid the losses while capturing more of the gains. + +But wait, surely theft is theft? If the new technologies enable more theft of intellectual property, must we not strengthen the laws in order to deal with the problem? If some new technology led to a rash of car thefts, we might increase police resources and prison sentences, perhaps pass new legislation creating new crimes related to car theft. We would do all of this even if the technology in question gave car owners significant benefits elsewhere. Theft is theft, is it not? + +The answer in a word is no. Saying “theft is theft” is exactly the error that the Jefferson Warning is supposed to guard against. We should not assume that intellectual property and material property are the same in all regards. The goal of creating the limited monopoly called an intellectual property right is to provide the minimum necessary incentive to encourage the desired level of innovation. Anything extra is deadweight loss. When someone takes your car, they have the car and you do not. When, because of some new technology, someone is able to get access to the MP3 file of your new song, they have the file and so do you. You did not lose the song. What you may have lost is the opportunity to sell the song to that person or to the people with whom they “share” the file. We should not be indifferent to this kind of loss; it is a serious concern. But the fact that a new technology brings economic benefits as well as economic harm to the creation, distribution, and sale of intellectual property products means that we should pause before increasing the level of rights, changing the architecture of our communications networks, creating new crimes, and so on. + +Remember, many of the things that the content industries were concerned about on the Internet were already illegal, already subject to suit and prosecution. The question is not whether the Internet should be an intellectual property-free zone; it should not be, is not, and never was. The question is whether, when the content industries come asking for additional or new rights, for new penalties, for the criminalization of certain types of technology, we should take into account the gains that the Internet has brought them, as well as the costs, before we accede to their requests. The answer, of course, is that we should. Sadly, we did not. This does not mean that all of the content industries’ attempts to strengthen the law are wrong and unnecessary. It means that we do not know whether they are or not. + +There is a fairly solid tradition in intellectual property policy of what I call “20/20 downside” vision. All of the threats posed by any new technology—the player piano, the jukebox, the photocopier, the VCR, the Internet—are seen with extraordinary clarity. The opportunities, however, particularly those which involve changing a business model or restructuring a market, are dismissed as phantoms. The downside dominates the field, the upside is invisible. The story of video recorders is the best-known example. When video recorders—another technology promising cheaper copying—first appeared, the reaction of movie studios was one of horror. Their business plans relied upon showing movies in theaters and then licensing them to television stations. VCRs and Betamaxes fit nowhere in this plan; they were seen merely as copyright violation devices. Hollywood tried to have them taxed to pay for the losses that would be caused. Their assumption? Cheaper copying demands stronger rights. + +Having lost that battle, the movie studios tried to have the manufacturers of the recording devices found liable for contributory copyright infringement; liable, in other words, for assisting the copyright violations that could be carried out by the owners of Sony Betamaxes. This, of course, was exactly the same legal claim that would be made in the Napster case. In the Sony case, however, the movie companies lost. The Supreme Court said that recording of TV programs to “time-shift” them to a more convenient hour was a fair use.~{Sony Corp. of America v. Universal City Studios, Inc. , 464 U.S. 417 (1984).}~ The movie studios’ claims were rejected. + +Freed from the threat of liability, the price of video recorders continued to fall. They flooded consumers’ houses at a speed unparalleled until the arrival of the World Wide Web. All these boxes sitting by TVs now cried out for content, content that was provided by an emerging video rental market. Until the triumph of DVDs, the videocassette rental market made up more than 50 percent of the movie industry’s revenues.~{See Tina Balio, Museum of Broadcast Communications, “Betamax Case,” Encyclopedia of TV (1997), available at http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/betamaxcase.htm (“The Betamax case went all the way to the Supreme Court, which reversed the appeals court decision on 17 January 1984. By 1986, VCRs had been installed in fifty percent of American homes and annual videocassettes sales surpassed the theatrical box-office.”). The year 1986 was also the peak of the video rental market: “Video’s high mark, according to studies by A. C. Nielsen Media Research, was in late 1986, when an estimated 34.3 million households with VCR’s took home 111.9 million cassettes a month, or an average of 3.26 movies per household.” Peter M. Nichols, “Movie Rentals Fade, Forcing an Industry to Change its Focus,” New York Times (May 6, 1990), A1.}~ Were losses caused by video recorders? To be sure. Some people who might have gone to see a movie in a theater because the TV schedule was inconvenient could instead record the show and watch it later. Videos could even be shared with friends and families—tattered copies of Disney movies recorded from some cable show could be passed on to siblings whose kids have reached the appropriate age. VCRs were also used for copying that was clearly illicit—large-scale duplication and sale of movies by someone other than the rights holder. A cheaper copying technology definitely caused losses. But it also provided substantial gains, gains that far outweighed the losses. Ironically, had the movie companies “won” in the Sony case, they might now be worse off. + +The Sony story provides us with some useful lessons—first, this 20/20 downside vision is a poor guide to copyright policy. Under its sway, some companies will invariably equate greater control with profit and cheaper copying with loss. They will conclude, sometimes rightly, that their very existence is threatened, and, sometimes wrongly, that the threat is to innovation and culture itself rather than to their particular way of delivering it. They will turn to the legislature and the courts for guarantees that they can go on doing business in the old familiar ways. Normally, the marketplace is supposed to provide correctives to this kind of myopia. Upstart companies, not bound by the habits of the last generation, are supposed to move nimbly to harvest the benefits from the new technology and to outcompete the lumbering dinosaurs. In certain situations, though, competition will not work: + +_* if the dinosaurs are a cartel strong enough to squelch competition; + +_* if they have enlisted the state to make the threatening technology illegal, describing it as a predatory encroachment on the “rights” of the old guard rather than aggressive competition; + +_* if ingrained prejudices are simply so strong that the potential business benefits take years to become apparent; or + +_* if the market has “locked in” on a dominant standard—a technology or an operating system, say—to which new market entrants do not have legal access. + +In those situations, markets cannot be counted on to self-correct. Unfortunately, and this is a key point, intellectual property policy frequently deals with controversies in which all of these conditions hold true. + +Let me repeat this point, because it is one of the most important ones in this book. To a political scientist or market analyst, the conditions I have just described sound like a rarely seen perfect storm of legislative and market dysfunction. To an intellectual property scholar, they sound like business as usual. + +In the case of the VCR wars, none of these factors obtained. The state refused to step in to aid the movie companies by criminalizing the new technology. There were equally powerful companies on the other side of the issue (the consumer electronics companies selling VCRs) who saw this new market as a natural extension of a familiar existing market—audio recorders. There was no dominant proprietary technological standard controlled by the threatened industry that could be used to shut down any threats to their business model. The market was allowed to develop and evolve without premature legal intervention or proprietary technological lockout. Thus we know in this case that the movie companies were wrong, that their claims of impending doom from cheap copies were completely mistaken. The public and, ironically, the industry itself benefited as a result. But the Sony case is the exception rather than the rule. That is why it is so important. If competition and change can be forbidden, we will get relatively few cases that disprove the logic that cheaper copying must always mean stronger rights. The “natural experiments” will never be allowed to happen. They will be squelched by those who see only threat in the technologies that allow cheaper copies and who can persuade legislators or judges to see the world their way. The story line I describe here, the Internet Threat, will become the conventional wisdom. In the process, it will make it much less likely that we will have the evidence needed to refute it. + +2~ The Holes Matter as Much as the Cheese + +The Sony case is important in another way. The Supreme Court’s decision turned on the judgment that it was a “fair use” under U.S. copyright law for consumers to record television programs for time-shifting purposes. Since fair use comes up numerous times in this book, it is worth pausing for a moment to explain what it is. + +The content industries like to portray fair use as a narrow and grudging defense against an otherwise valid case for copyright infringement—as if the claim were, “Yes, I trespassed on your land, which was wrong, I admit. But I was starving and looking for food. Please give me a break.” This is simply inaccurate. True, fair use is asserted as “an affirmative defense”; that is the way it is brought up in a copyright case. But in U.S. law, fair uses are stated quite clearly to be limitations on the exclusive rights of the copyright holder—uses that were never within the copyright holder’s power to prohibit. The defense is not “I trespassed on your land, but I was starving.” It is “I did not trespass on your land. I walked on the public road that runs through it, a road you never owned in the first place.” When society hands out the right to the copyright holder, it carves out certain areas of use and refuses to hand over control of them. Again, remember the Jefferson Warning. This is not a presumptively absolute property right. It is a conditional grant of a limited and temporary monopoly. One cannot start from the presumption that the rights holder has absolute rights over all possible uses and therefore that any time a citizen makes use of the work in any way, the rights holder is entitled to get paid or to claim “piracy” if he does not get paid. Under the sway of the story line I called the Internet Threat, legislators have lost sight of this point. So what is “fair use”? When I am asked this question by nonlawyers, I offer to show them the actual provision in the copyright act. They recoil, clearly imagining they are about to be shown something the size and complexity of the tax code. Here is the statutory fair use provision in its entirety: + +_1 #{Sec. 107. - Limitations on exclusive rights: Fair use}# + +_1 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— + +_1 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; + +_1 2. the nature of the copyrighted work; + +_1 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and + +_1 4. the effect of the use upon the potential market for or value of the copyrighted work. + +_1 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. + +“But this seems quite sensible,” people often say, as though they had expected both Byzantine complexity and manifest irrationality. (Perhaps they have had some experience with legal matters after all.) The ones who think about it a little longer realize that these factors cannot be mechanically applied. Look at factor 3, for example. Someone who is making a parody frequently needs to take large chunks of the parodied work. That is the nature of a parody, after all. They might then sell the parody, thus also getting into trouble with factor 1. And what about factor 4? Someone might quote big chunks of my book in a devastating review that ruined any chance the book had of selling well. Come to think of it, even a parody might have a negative effect on the “potential market” for the parodied work. But surely those uses would still be “fair”? (In both instances, the Supreme Court agrees that they are fair uses.) + +In coming up with these hypothetical problem cases, the copyright novice is probably closer to having a good understanding of the purpose of fair use than many people who have studied it for years. In fact, the novice’s questions shed light on all of the exceptions, limitations, and defenses to proprietary rights—the holes in the cheese of intellectual property. The scholar’s urge is to find one theory that explains all the possible applications of the fair use doctrine, to arrange all of the cases like targets and shoot a single arrow through all of them. Perhaps fair use is designed to reduce the difficulty of clearing rights when it would be uneconomical or impossibly complex to do so: to reduce the paperwork, hassle, delay, ignorance, and aggravation that economists refer to under the sanguine name of “transaction costs.”~{For background, see Wendy Gordon, “Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors,” Columbia Law Review 82 (1982): 1600–1657. For accounts that imagine a reduction of fair use as transaction costs fall, see Edmund W. Kitch, “Can the Internet Shrink Fair Use?,” Nebraska Law Review 78 (1999): 880–890; Robert P. Merges, “The End of Friction? Property Rights and the Contract in the ‘Newtonian’ World of On-Line Commerce,” Berkeley Technology Law Journal 12 (1997): 115–136. This argument has hardly gone unanswered with articles pointing out that it neglects both the social values of fair use and the actual economics of its operation. See Jonathan Dowell, “Bytes and Pieces: Fragmented Copies, Licensing, and Fair Use in A Digital World,” California Law Review 86 (1998): 843–878; Ben Depoorter and Francesco Parisi, “Fair Use and Copyright Protection: A Price Theory Explanation,” International Review of Law and Economics 21 (2002): 453–473.}~ (Though the idea that fair use is about transaction costs hardly explains some of the types of fair use we care most about—the rights to parody, to criticize, to reverse engineer.) Or perhaps fair use allows the rights of a transformative author to be trumped only by a second transformative author, who is building on the first—the parodist, reviewer, collage artist, or what have you.~{“I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.” Pierre N. Leval, “Toward a Fair Use Standard,” Harvard Law Review 103 (1990): 1111.}~ (Then again, photocopying for classroom use does not sound very “transformative.”) Could fair use be dictated by the Constitution or by international free speech guarantees? In this view, fair use provides a safety valve that allows copyright to coexist with the First Amendment, property rights over speech to coexist with freedom of expression.~{See Neil Weinstock Netanel, “Locating Copyright Within the First Amendment Skein,” Stanford Law Review 54 (2001): 1–86; Yochai Benkler, “Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354–446; Larry Lessig, Melville B. Nimmer Memorial Lecture: “Copyright’s First Amendment” (March 1, 2001), in UCLA Law Review 48 (2001): 1057–1074; Melville B. Nimmer, “Does Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?” UCLA Law Review 17 (1970): 1180–1204.}~ After all, it is not entirely obvious how it could be constitutional to forbid me, in the name of a federal law, from translating Mein Kampf in order to warn of the dangers of fascism or parodying some piece of art to subversive effect. + +Each of these ideas about fair use has much to recommend it, as do the many other grand theories that have been offered to explain the puzzle. And therein lies the problem. + +Intellectual property is a brilliant social invention which presents us with great benefits but also with a multitude of dangers: + +# the danger that the monopoly is unnecessary to produce the innovation, or that it is broader or lasts for longer than is necessary to encourage future production; + +# that overly broad rights will chill speech, criticism, or scientific progress; + +# that it will restrict access in ways that discourage “follow-on” innovation; + +# that it will lead to industry concentration in a way that hurts consumers or citizens while being less subject to antitrust regulation precisely because the monopoly or oligopoly rests on intellectual property rights; + +# that it will establish strong “network effects” which cause the market to tip over to some inefficient technology; and + +# that it will give the rights holder control over some technology outside the range of the monopoly but closely linked to it. + +The list of dangers goes on and on, and so does the list of exceptions, limitations, and restraints designed to prevent them. We restrict the length of intellectual property rights. (At least, we used to. The framers thought it so important to do so that they put the need to have a limited term in the Constitution itself; nevertheless both Congress and the Supreme Court seem to have given up on that one.) We restrict the scope of intellectual property rights, so that they cannot cover raw facts or general ideas, only the range of innovation and expression in between. (At least, we used to. Developments in database protection, gene patents, and business method patents are clearly eroding those walls.) As with fair use, we impose limitations on the rights when we hand them out in the first place. The exclusive right conferred by copyright does not include the right to prevent criticism, parody, classroom copying, decompilation of computer programs, and so on. (Though as the next chapter shows, a number of recent legal changes mean that the practical ability to exercise fair use rights is seriously threatened.) + +These limitations on intellectual property do not fit a single theory, unless that theory is “avoiding the multiple and evolving dangers of intellectual property itself.” Even a single limitation such as fair use clearly responds to many different concerns about the dangers of intellectual property rights. Indeed it will evolve to fit new circumstances. When computer programs were first clearly covered by copyright law, software engineers wondered if this would cripple the industry. Why? Anyone who wishes to compete with a dominant program needs to “decompile” it in order to make their program “interoperable,” or simply better. For example, a new word processing program, no matter how good, would be dead on arrival unless it could read all the files people had created with the old, dominant word processing software. But to do this, the engineers at the upstart company would have to take apart their competitor’s program. In the process they would have to create temporary copies of the old program, even though the final product—the hot new software—would be completely different from the old. Would this be a violation of copyright law? + +In a series of remarkable and far-seeing cases involving such issues, the courts said no.~{Sega Enterprises Ltd. v. Accolade, Inc. , 977 F.2d 1510 (9th Cir. 1992); Atari Games Corp. v. Nintendo of America Inc. , 975 F.2d 832 (Fed. Cir. 1992).}~ “Decompilation” was fair use. The law of fair use had evolved in the context of expressive, nonfunctional, stand-alone works such as books, poems, songs. Now it was being applied to a functional product whose economics depended strongly on “network effects”—many types of programs are useful only if they are widely used. Without interoperability, we could never take our existing documents or spreadsheets or datasets and move to a new program, even if it was better. One program would not be able to read the files created by another. It would be as if language itself had been copyrighted. To have said that the incidental copies created in the process of decompiling software were actually infringements of copyright would have turned the law on its head because of a technological accident (you needed temporarily to “copy” the programs in order to understand how they worked and make yours work with them) and a legal accident (copyright was now being used to regulate functional articles of commerce: “machines” made of binary code). The difference between copying and reading, or copying and understanding, had changed because of the technology. The context had changed because the law was being stretched to cover new types of products, whose economics were very different from those of novels. Rather than let the dominant software companies use copyright to stop others from making interoperable software, the courts used an escape hatch—fair use—to prevent that danger and to uphold the basic goal of copyright: encouraging progress in science and the useful arts. + +This long story is told to make a simple point. The variegated and evolving limitations on intellectual property are as important as the rights they constrain, curtail, and define. The holes matter as much as the cheese. + +What does this have to do with the Sony case? In that case, remember, the Supreme Court had said that copying TV shows in order to time-shift was fair use. The Court could simply have stopped there. It could have said, “since most of what consumers do is legal, there can be no claim of contributory or vicarious infringement. Sony is not contributing to infringement since consumers are not infringing copyright by copying shows in the first place.” Interestingly, though this is the heart of the ruling, the court went further. It quoted some seemingly unrelated patent law doctrine on contributory infringement: “A finding of contributory infringement does not, of course, remove the article from the market altogether; it does, however, give the patentee effective control over the sale of that item. Indeed, a finding of contributory infringement is normally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee.” Clearly, the Justices were concerned that, by using copyright law, the movie studios could actually get control of a new technology. + +The fact that the Court expressed this concern through an analogy to patent law was, at first sight, fairly surprising. Courts do not normally look at copyrights in quite the same way as they look at patents. For one thing, patent rights are stronger, though they are harder to obtain and last for a shorter period of time. For another, while courts often express concern about the dangers of a patent-driven monopoly over a particular technology, it is strange to see that concern in the context of copyright law. An unnecessary monopoly over a plow or a grain elevator may, as Jefferson pointed out, slow technological development. But a monopoly over Snow White or “Ode on a Grecian Urn”? We do not normally think of rights over expression (the realm of copyright) threatening to sweep within their ambit an entire new technological invention (the realm of patent). + +But in the Sony case, the Supreme Court quite clearly saw that, in a world where technological developments made copying easier, the idea of contributory infringement in copyright could be used to suppress or control entire technologies that seemed, in the logic of 20/20 downside vision, to pose a threat to the copyright holder. Indeed, in some sense, the logic behind the Internet Threat—“cheaper copying requires greater control”—demands this result, though the Sony case antedates the World Wide Web by a considerable time. If it is cheap copying itself that poses the threat, then the content owners will increasingly move to gain control over the technologies of cheap copying, using copyright as their stalking horse. That is why the Sony Court went beyond the simple ruling on fair use to explain the consequences of the movie companies’ claim. In a footnote (the place where judges often bury their most trenchant asides) the Court was almost snide: + +_1 It seems extraordinary to suggest that the Copyright Act confers upon all copyright owners collectively, much less the two respondents in this case, the exclusive right to distribute VTR’s [Video Tape Recorders] simply because they may be used to infringe copyrights. That, however, is the logical implication of their claim. The request for an injunction below indicates that respondents seek, in effect, to declare VTR’s contraband. Their suggestion in this Court that a continuing royalty pursuant to a judicially created compulsory license would be an acceptable remedy merely indicates that respondents, for their part, would be willing to license their claimed monopoly interest in VTR’s to Sony in return for a royalty.~{Sony 464 U.S. at 441 n. 21.}~ + +The real heart of the Sony case is not that “time-shifting” of TV programs is fair use. It is an altogether deeper principle with implications for all of the holes in the intellectual property cheese. The Sony Court declared that because video recorders were capable of substantial noninfringing uses, the manufacturers of those devices were not guilty of contributory infringement. If the rights of copyright holders were absolute, if they had the authority to prohibit any activity that appeared to pose a threat to their current business model, then it is quite possible that video recorders would have been guilty of contributory infringement. It is because we have, and need, multiple exceptions and limitations on intellectual property that the Supreme Court was able to resist the claim that copyright itself forbids technologies of cheaper copying. To put it another way, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders. + +Thus we have a corollary to the Jefferson Warning—call it the Sony Axiom: cheaper copying makes the limitations on copyright more rather than less important. Without those limitations, copyright law will bloat and metastasize into a claim of monopoly, or at least control, over the very architectures of our communications technology. And that is exactly where the logic of the Internet Threat is taking us today. + +2~ From Napster to Grokster + +Seventeen years after the Sony decision, another court had to deal with a suit by outraged copyright holders against the creators of a technology that allowed individuals to copy material cheaply and easily. The suit was called A&M Records v. Napster.~{A&M Records, Inc. v. Napster, Inc. , 239 F.3d 1004 (9th Cir. 2001).}~ Napster was a “peer-to-peer” file sharing system. The files were not kept on some huge central server. Instead, there was a central directory—think of a telephone directory—which contained a constantly updated list of the addresses of individual computers and the files they contained. Anyone who had the software could query the central registry to find a file’s location and then establish a direct computer-to-computer connection—anywhere in the world—with the person who had the file they desired. This decentralized design meant the system was extremely “robust,” very fast, and of nearly infinite capacity. Using this technology, tens of millions of people around the world were “sharing” music, an activity which record companies quite understandably viewed as simple theft. In fact, it would be hard to think of a situation that illustrated the Internet Threat better. The case ended up in front of the U.S. Court of Appeals for the Ninth Circuit, which hears cases in an area that includes California and thus has decided a lot of copyright cases over the years. + +There was an irony here. When the Supreme Court decided the Sony case, it was on appeal from the Ninth Circuit Court of Appeals. Sony, with its rule about reproductive technologies with substantial noninfringing uses, reversed the appeals court decision. The Supreme Court was, in effect, telling the Ninth Circuit that it was wrong, that its ruling would have required the “extraordinary” (legal shorthand for “stupid”) conclusion that copyright law gave copyright holders a veto on new technology. In the process, the Supreme Court told the Ninth Circuit that it also did not understand the law of fair use, or the freedom that should be given to individuals to make “noncommercial” private copies. The identities of the judges had changed, but now, seventeen years later, the same Circuit Court had another high-profile case on exactly the same issues. In case any of the judges might have missed this irony, it took David Boies, the lawyer for Napster, about ninety seconds to remind them in his oral argument. “This court,” he said, adding as if in afterthought, “in the decision that the Supreme Court ultimately reversed in Sony. . . .”~{A&M Records v. Napster: C-SPAN Videotape 159534, Part 1 of 1 (October 2, 2000).}~ To the laypeople in the audience it probably just seemed like another piece of legal droning. But to the lawyers in the room the message was quite clear. “The last time you got a case about a major new technology of consumer reproduction, you really screwed it up. Hope you can do better this time.” The judges’ mouths quirked—not entirely in pleasure. The point had been registered. + +Think for a moment of the dilemma in which the court had been placed. On the one hand, you had tens of millions of people “sharing” music files and Napster was the service that allowed them to do it. If this was not contributory copyright infringement, what was? On the other hand, Napster seemed to fit very nicely under the rule announced in the Sony case. + +The argument went like this. Like the VCR, the Napster service had substantial noninfringing uses. It allowed bands to expose their music to the world through the “New Artists” program. It made it easy to share music which was no longer under copyright. These uses clearly do not infringe copyright. There were also the claims that it permitted “space-shifting” by consumers who already owned the music or “sampling” of music by listeners as they decided whether or not to buy. One could argue that space-shifting and sampling were fair use (though in the end the court disagreed). But since we have two clear noninfringing uses, the technology obviously does have substantial uses that do not violate copyright. Thus, Napster cannot be liable as a contributory infringer, just as Sony could not be liable for the Betamax. Supreme Court precedent covers this case. The Ninth Circuit is bound by that precedent. All the judges can do, goes the argument, is to apply the words of the rule laid down in Sony, say that Napster wins, and move on to the next case. If Congress wants to make services like Napster illegal, it is going to have to pass a new law. The boundaries of the Sony rule are clear and Napster fits within them. (Of course, the last point is subject to argument, but the argument for Napster on this issue was a good one. Not overwhelming—there were more noninfringing uses in the Sony case because the normal way consumers used the technology in question was found to be a fair use—but certainly powerful.) + +A more daring strategy was to suggest that all the copying done over Napster was fair use, or at least presumptively fair. In Sony, the Supreme Court had said that the law presumes that noncommercial private copying—such as taping a show at home for future viewing—is a fair use. This presumption shifts the burden to the copyright holder to prove that the practice caused harm to them. Copying on Napster was done by private individuals. No money was exchanged. Does this mean we must presume it was fair use and require the music companies and songwriters to show clear evidence of “market harm” if they want to convince us otherwise? + +It sounds as though proving market harm would be pretty easy. How could millions of people exchanging hundreds of millions of songs not be causing harm? But it is more complicated. Remember the Jefferson Warning. We are not talking about swiping shoes from a shoe store. There one merely has to show the theft to prove the loss. By contrast, music files are copied without being “taken” from their owner. The record companies would have to show harm to their market—the people downloading who do not purchase music because it is available for free. Those who download, but would not have purchased, do not count. And we have to balance those who are deterred from purchasing against those who purchase a whole CD because they are exposed to new music through Napster. One very interesting empirical study on the subject indicates that the result is a wash, with hardly any measurable effect on sales; the overall drop in CD purchases results from larger macroeconomic issues.~{Felix Oberholzer-Gee and Koleman Strumpf, “The Effect of File Sharing on Record Sales: An Empirical Analysis,” Journal of Political Economy 115, no. 1 (2007): 1–42.}~ This study, however, has been subject to detailed methodological criticism.~{Stan J. Liebowitz, “How Reliable Is the Oberholzer-Gee and Strumpf Paper on File-Sharing?” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014399. }~ Another study shows a weak effect on sales, though rather woundingly it seems to suggest that the result is economically efficient—fewer people end up with music they do not like.~{Rafael Rob and Joel Waldfogel, “Piracy on the High C’s: Music Downloading, Sales Displacement, and Social Welfare in a Sample of College Students,” available at http://bpp.wharton.upenn.edu/waldfogj/jle_piracy.pdf [Ed. note: originally published as http://www.law.upenn.edu/polk/dropbox/waldfogel.pdf, link has changed]. +}~ Other studies, by contrast, support the record company position—suggesting that illicit file sharing does indeed undercut sales of both CDs and authorized digital downloads.~{M. Peitz and P. Waelbroeck, “The Effect of Internet Piracy on Music Sales: Cross-Section Evidence,” Review of Economic Research on Copyright Issues (December 2004): 71–79, available at http://www.serci.org/docs_1_2/waelbroeck.pdf. For an excellent general discussion see Rufus Pollock’s summary of the empirical evidence at http://www.rufuspollock.org/economics/p2p_summary.html. }~ Given the complexities of the issue, the record companies did not want to engage in a war of dueling empirical studies. + +So, if Napster’s users were not infringing copyright law in the first place—at least until the record companies came up with convincing evidence of market harm—because their copying was noncommercial, then Napster could hardly be guilty of contributory infringement, could it? There would be no infringement at all! + +You could see Mr. Boies’s arguments as simple equations between the cases. + +_* Noninfringing uses such as recording public domain films and “time-shifting” programs are equivalent to noninfringing uses such as the New Artists program or sharing public domain music (and maybe “space-shifting” one’s own music?); or + +_* Private noncommercial videotaping is equivalent to private noncommercial file sharing. Both are presumptively fair uses. + +_* Either way, Sony=Napster and Napster wins. + +Napster did not win, of course, though when the judges handed down their decision it was clear they had been paying attention to Mr. Boies, at least enough to make them very wary of tampering with Sony. They claimed that they were upholding that case, but that Napster could be liable anyway. How? Because there was enough evidence here to show that the controllers of Napster had “actual knowledge that specific infringing material is available using its system, that it could block access to the system by suppliers of the infringing material, and that it failed to remove the material.” There was indeed evidence that Napster knew how its system was being used—an embarrassing amount of it, including early memos saying that users will want anonymity because they are trading in “pirated music.” Then there were nasty circumstantial details, like the thousands of infringing songs on the hard drive of one particular Napster employee—the compliance officer tasked with enforcing the Digital Millennium Copyright Act! (The recording company lawyers waxed wonderfully sarcastic about that.) + +But despite the ludicrously dirty hands of Napster as a company, lawyers could see that the appeals court was making a lot of new law as it struggled to find a way to uphold Sony while still making Napster liable. The court’s ruling sounded reasonable and clear, something that would only strike at bad actors while paying heed to the Sony Axiom and the assurance of safety that the rule in Sony had provided to technology developers for the previous twenty years. But hard cases make bad law. In order to accomplish this piece of legal legerdemain, the court had to alter or reinterpret the law in ways that are disturbing. + +The first thing the court did was to reject the argument that the “sharing” was private and noncommercial. As to the idea that it is not private, fair enough. Sharing one’s music with fifty-four million people does not sound that private, even if it is done for private ends, in private spaces. What about noncommercial? Embracing some earlier rulings on the subject, the court said a use was “commercial” if you got for nothing something for which you would otherwise have to pay. On the surface this sounds both clever and reasonable—a way to differentiate home taping from global file sharing—but the argument quickly begins to unravel. True, the Betamax owners could get TV shows for free just by watching at the regular time. But they could not get a copy of the show for free at the moment they wanted to watch it. That was why they taped. One could even argue that Napster users would have access to most songs over the radio for free. But lawyers’ quibbling about which way the rule cuts in this case is not the point. Instead, we need to focus on the change in the definition of “commercial,” because it illustrates a wider shift. + +Remember, a finding that a use is “noncommercial” makes it more likely that a court will find it to be legal—to be a fair use. The old test focused mainly on whether the motive for the copying was to make money. (A different stage of the inquiry concerned whether there was harm to the copyright holder’s market.) The Napster court’s test concentrates on whether the person consuming the copy got something for free. Instead of focusing on the fact that the person making the copy is not making money out of it—think of a professor making electronic copies of articles for his students to download—it focuses on the presumptively dirty hands of those who are “getting something for nothing.” But lots of copyright law is about “getting something for nothing.” To put it differently, one central goal of copyright is to limit the monopoly given to the copyright owner so that he or she cannot force citizens to pay for every single type of use. The design of the law itself is supposed to facilitate that. When “getting something for free” comes to equal “commercial” in the analysis of fair use, things are dangerously out of balance. Think back to Jefferson’s analogy. If I light my candle at yours, am I getting fire for free, when otherwise I would have had to pay for matches? Does that make it a “commercial” act? + +Having dismissed the claim that this was noncommercial sharing, the court then reinterpreted the Sony decision to allow liability when there was “actual knowledge” of specific copyright violations, an ability to block access by infringers, and a failure to do so. Neither side was entirely happy with this ruling, but the record companies believed—rightly—that it would allow them effectively to shut Napster down. Yet the Napster ruling only postponed the issue. The next set of file sharing services to be sued after Napster were even more decentralized peer-to-peer systems; the Napster court’s reinterpretation of Sony would not be able to reach them. + +The peer-to-peer file sharing service called Grokster is a relatively typical example. Unlike Napster, Grokster had no central registry. The system was entirely run by the individual “peer” computers. Because the system was designed this way, the people who made and distributed the software had no knowledge of specific infringing files. The users were doing the searching, indexing, and storing, and Grokster had no ability to control their behavior. For those reasons, a court of appeals held that Grokster was not liable. As in Sony, the system had substantial noninfringing uses. Lots of interesting content was traded on Grokster with the copyright holder’s consent. Other material was in the public domain. Grokster made money by streaming advertisements to the users of its software. The movie companies and record companies saw this as a flagrant, for-profit piracy ring. Grokster’s response was that like the makers of the VCR, it was simply providing a technology. Its financial interest was in people using that technology, not in using it for illicit purposes—though, like the VCR manufacturer, it would profit either way. The court of appeals agreed. True, the majority of the material traded on Grokster was illicitly copied, but the court felt that it could not give the recording or movie companies control over a technology simply because it allowed for easier copying, even if most of that copying was illegal. As I tried to point out in the section on the Sony Axiom, that line of thought leads to copyright holders having a veto over technological development. + +It was at this point that the Supreme Court stepped in. In the case of MGM v. Grokster,~{MGM Studios Inc. v. Grokster, Ltd. , 545 U.S. 913 (2005).}~ the Supreme Court followed the line of the Napster court, but went even further. The Court created a new type of contributory copyright infringement—while apparently denying it was doing so. Grokster and its fellow services were liable because of three different kinds of evidence that they had “intended” to induce copyright violation. First, they were trying “to satisfy a known demand for copyright infringement.” This could be shown by the way that they advertised themselves as alternatives to the “notorious file-sharing service, Napster.” Second, the file sharing services did not try to develop filtering software to identify and eliminate copyrighted content—though this alone would not have been enough to make them liable. Finally, their advertising-supported system clearly profited by high-intensity use, which they knew was driven in the most part by illicit copying. This too would not have been enough by itself, the Court added, but had to be seen in the context of the whole record of the case. + +Let me be clear. I wept no tears for Napster, Grokster, and their ilk. I see no high-minded principle vindicated by middle-class kids getting access to music they do not want to pay for. It is difficult to take seriously the sanctimonious preening of those who cast each junior downloader of corporate rock as a Ché Guevara, fighting heroically to bring about a new creative landscape in music. (It is almost as hard to take seriously the record industry executives who moralistically denounce the downloading in the name of the poor, suffering artists, when they preside over a system of contracts with those same artists that makes feudal indenture look benign.) The file sharing companies themselves were also pretty unappealing. Many of the services were bloated with adware and spyware. True, some of their software engineers started with a dewy-eyed belief that this was a revolutionary technology that would break the record companies and usher in a new era of musical creativity. Whether one agrees or disagrees with them, it is hard—for me at least—to doubt their sincerity. But even this quality did not last long. For most of the people involved, the words “stock options” worked their normal, morally debilitating magic. In internal company correspondence, attacks on the hypocrisy of the music companies and defenses of a democratic communications structure imperceptibly gave way to discussions of “customer base,” “user experience,” and “saleable demographics.” I care little that Napster and Grokster—as individual companies—lost their specific legal battles. There are few heroes in this story. But if we had to rely on heroes, nothing would ever get done. + +I do care about the technology behind Napster and Grokster—about the kind of decentralized system it represents. I also care about the principle I identified as the Sony Axiom—a principle that goes far beyond music, peer-to-peer systems, or the Internet as a whole. The Supreme Court’s decision in Grokster could have been much worse. But it still offers a modest threat both to that technology and to that axiom. + +What is so great about peer-to-peer systems? We talk about “cheap speech” on the Internet, but bandwidth is actually expensive. If one is talking about music or video files, and one wishes to speak to many people in a short period of time, one vital way to have cheap speech is over peer-to-peer networks. If many of your viewers or listeners are willing to become broadcasting stations as they watch, you can cheaply reach a million people in a short period of time with your video of abuse in Abu Ghraib or your parody of political leaders. You do not need to rely on a broadcasting station, or even on the continued existence of entities such as YouTube, which face their own legal worries. By making your listeners your distributors, you can quickly reach the same number of ears that the payola-soaked radio waves allow the record companies to reach. + +One need not cheer Grokster. Much of what went on there was indeed illicit. But there are two key things to understand about peer-to-peer networks. The first is that they are hard to police. They have multiple nodes. That is why they work. It means they will have both infringing and noninfringing uses, and the noninfringing uses will be centrally connected to our deepest values of free speech and cultural decentralization. + +The second feature of peer-to-peer networks is even more basic. They are networks and thus subject to the laws of network economics. In short, they only work well if many people use them. A person who uses a peer-to-peer system that no one else uses is in the position of the person who owns the only fax machine in the world. Peer-to-peer networks provide cheap and unregulable audiovisual or data-heavy “speech” to a mass audience. And if the past is any guide, those networks will also carry large amounts of illicit material, just as photocopying machines (and VCRs) are widely used to violate copyright. The Grokster case makes it harder, but not impossible, to have successful, widely used peer-to-peer systems that are not themselves illicit. If they are widely used, there will be infringing content. If you try to police them and filter them, you will know more about that infringing content and thus might be liable—that was the point of the Napster case. If you do not, you will be failing to take precautions. That was the point of the Grokster case. What is a poor peer-to-peer network to do? Apart from making sure that the last four letters of your service’s name are not “-ster,” I am hard-pressed to advise you. + +A decision does not need to make an activity illegal in order to impede it. It only needs to make it uncertain. Already, for example, the free—and so far as I could tell, entirely well-meaning—service “bonpoo,” which allowed you to send large file attachments to many people at once, has shut down all of its capabilities except photo transfer. That is simply one trivial instance of a larger harm. Lots of new communications technologies will remain undeveloped because of the uncertainties left by this ruling. + +My colleague Jennifer Jenkins gave one useful hyperbolic illustration, drawing on earlier work by the Electronic Frontier Foundation: if one were launching the iPod today, it is not clear how it would fare under Grokster’s standard. Of course, there is no danger that the iPod will be challenged. It has become respectable and the music companies ended up sanctioning it. But how does it fare if we simply apply the tests laid down in the Grokster case? There is Apple’s “tainted” advertising campaign, urging users to “Rip, Mix, and Burn.” Does this not suggest complicity, or even intent? There is the fact that the iPod does not restrict itself solely to proprietary formats protected by digital rights management. It also allows uncontrolled MP3 files despite the fact that this format is “notoriously” used to transfer files against the wishes of the copyright owner. This, surely, is a “failure to police.” And finally, there is the fact that it would cost about $10,000 to fill an iPod with songs downloaded from iTunes. Clearly Apple must be aware that much of the music that fills iPods is illicitly copied. They are profiting from that fact to drive demand for the product, just as Grokster was profiting from the attractions of illicit traffic to drive people to use their service! + +No one is going to sue Apple now, of course. In fact, established players in the marketplace are probably fairly safe (and have better lawyers). But what if a product as good as the iPod were being developed now by some upstart company? What if it were no more and no less likely to be used for infringing purposes? Would the business plan ever see the light of day? Or would it be quietly smothered due to legal uncertainty? I have little sympathy for Grokster the company, but the decision that doomed it is a bad piece of technology policy. + +There is a second reason to dislike the Grokster decision. Despite some of the angst-ridden announcements made when the decision was handed down, the Supreme Court has not killed peer-to-peer systems. The concept is far too well entrenched. But the decision will mean that there are fewer of them that are widely used, easy to operate, and made by responsible and reputable people you can trust. This will probably lessen, but not end, illicit copying online. But that effect comes with a price—it makes our communications architecture a little bit more tightly controlled, reducing but not removing the availability of methods of mass distribution that are entirely outside centralized public or private control. It is another—relatively small—step toward an Internet that is more like cable TV or iTunes, a one-way flow of approved content. One might decide that such a price was well worth paying. But where is the limiting principle or end point of the logic that led to it? + +There is no provision in U.S. statutory copyright law that imposes liability for contributory or vicarious infringement. None. The patent statute has such a provision; not the Copyright Act. The courts have simply made the scheme up themselves. Then they made up limitations—such as Sony—in order to rein it in. In Grokster, the Supreme Court went further. It made up a new type of “inducement” liability. Fine. As I have tried to indicate here, the decision is not as dreadful as it is reputed to be. But so long as there is any unregulated space in our communications network, some portion of it will have illicitly copied content on it. The more the system is free of central control, the more it is open to use by any citizen, the cheaper it gets—all very desirable characteristics—the more illicit content there will be. That is the premise of the Internet Threat—the belief that control must rise as copying costs fall. I have tried here to suggest an alternative interpretation, the Sony Axiom: without a strong internal set of limitations over copyright, cheaper copying and the logic of the Internet Threat will always drive us toward giving control over our communications architecture to the content industries. + +There was one particularly striking moment in the Napster oral argument. The lawyer for the recording companies was arguing that Napster was illegal. The judges interrupted, as they often do, and there was a back-and-forth debate about the likely reach of any ruling that would shut down Napster. “I am not trying to say the Internet is illegal,” said the lawyer. There was a pause as everyone weighed those words carefully. + +My response would be “Really? Why not?” The logic of the Internet Threat leads to the position that a network is either controlled or illegal. The better and cheaper the network, the tighter the control needed. The Internet itself could have been designed differently. There could have been more centralized control, filtering of content, a design based on one-way transmission, closed protocols that allow users only a limited number of options. Indeed there were such systems—the national French Minitel system is an example. The Internet represents the opposite set of choices—freedom from centralized control, absence of intervention. In a famous article, Saltzer, Reed, and Clark provided the argument that an “end-to-end” network that is “dumb” and leaves processing to the “ends”—the smart terminals at either end of the wires—will be stable and robust.~{J. H. Saltzer, D. P. Reed, and D. D. Clark, “End-to-End Arguments in System Design,” ACM Transactions on Computer Systems (November 1984): 277.}~ But it will also be remarkably uncontrolled and it will lower global copying costs close to zero for digital content. It is that principle that has made it successful. To put it tersely: the logic of the Internet Threat runs in exactly the opposite direction to the Internet itself. The logic of control is not the logic of the Net. + +Here is one last thought experiment. Apply the same test I suggested for the iPod to the Internet itself.~{Technically, this discussion fuses components of the Internet—its transfer protocols, for example—with aspects of the World Wide Web, the set of linked hypertext documents assembled on top of it.}~ Imagine you knew nothing of the Net. (Those of you who are over twenty-five may actually be able to remember when you knew nothing of the Net.) Imagine that you are sitting in a room somewhere discussing—perhaps with a group of government bureaucrats or some policy analysts from the Commerce Department—whether to develop this particular network. The scientists are enthusiastic. They talk of robustness and dumb networks with smart terminals. They talk of TCP/IP and HTML and decentralized systems that run on open protocols, so that anyone can connect to this network and use it any way they want to. You, of course, know nothing about the truly astounding outburst of creativity and communication that would actually flower on such a system, that would flower precisely because it is so open and no one country or company controls it or the protocols that run it. You do not know that millions of people worldwide will assemble the greatest factual reference work the world has ever seen on this network—often providing their information for free out of some bizarre love of sharing. You do not know about Amazon.com or Hotornot.com or the newspapers of the world online, or search engines, automatic page translation, plug-ins, or browsers. You cannot imagine free or open-source software being assembled by thousands of programmers worldwide. E-mail is only a dimly understood phenomenon to you. Teenagers in your world have never heard of instant messaging—a nostalgic thought. + +As the scientists talk, it becomes clear that they are describing a system without centralized direction or policing. Imagine that your decision is framed by the logic of control I have described in this chapter, by the fears that the content industry has had for at least the last thirty years—by the logic of the suit they brought in Sony. Imagine, in other words, that we make the up-or-down decision to develop the Internet based on the values and fears that our copyright policy now exhibits, and that the content industries have exhibited for thirty years. There is no way, no way at all, that a network like it would ever be developed. It would be strangled at birth. You would be told by the lawyers and policy wonks that it would be a haven for piracy and illegality. (And it would be, of course—though it would also be much, much more.) You would be told that the system needed to be designed to be safe for commerce or it would never attract investment, that it would need to be controlled and centralized for it to be reliable, that it would need to be monitored to stop it being a hotbed of crime. With the copyright lawyers in the room, you would end up designing something that looked like cable TV or Minitel. The Internet would never get off the ground. + +The Internet is safe now, of course, because it developed so fast that it was a reality before people had time to be afraid of it. But it should give us pause that if we had our current guiding set of policy goals in place, our assumption that cheaper copying means we need greater regulation, we would never have allowed it to flourish. As Jessica Litman points out, we are increasingly making our decisions about technology and communications policy inside copyright law. We are doing so according to the logic of control that I have sketched out in this chapter. But the logic of control is a partial logic. It blinds us to certain possibilities, ones that have huge and proven potential—look at the Internet. + +The law has not been entirely one-sided, however. The Sony case drew a line in the sand which promised to halt the inevitable drift toward greater and greater control over communications technology by content owners. It turned out the heavens did not fall. Indeed, the content companies thrived. Perhaps that line was drawn in the wrong place; reasonable people can disagree about that. But Grokster smudges the line without drawing a clear new one. If that new line is drawn according to the logic of control, what technologies will we never see? Could they be technologies that would transform our lives as unimaginably as the Internet has since 1995? + +I have described the story line—the cluster of metaphors and images and concerns—that pervades our copyright policy. I labeled it “the Internet Threat.” In the next chapter, I discuss an alternative story line, a different way of understanding our current policies. The subject of that story line is the best-known example of contemporary attempts to control the digital world, the Digital Millennium Copyright Act or DMCA. + +2~ Chapter 4: Further Reading + +The first book to read on the history of the tension between copying technologies and the law that regulates them is Paul Goldstein’s effortlessly erudite Copyright’s Highway: From Gutenberg to the Celestial Jukebox, 2nd ed. (Stanford, Calif.: Stanford University Press, 2003). Goldstein and I differ somewhat in our optimism about current regulatory developments but his work is an indispensable beginning for the inquiry and a pleasure to read. One fascinating theme in the book is that the intellectual tension between maximalists and minimalists (or optimists and pessimists as he describes them) is actually a fundamental part of copyright law’s survival strategy—its dialectical method of dealing with technological change. If so, in this book I am struggling gamely to do my part by holding up my side of the dialectic. It does not seem to be winning much recently. Perhaps copyright’s Hegel is asleep. + +Much of this chapter concerns itself with copyright’s response to the Internet. No book comes close to laying this out as well as Jessica Litman’s Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001). Litman is a beautiful essayist and this book is both accessible and detailed. Those readers who are interested in the history of that dying technology, the VCR, will find a brilliant account in James Lardner, Fast Forward: Hollywood, the Japanese & the VCR Wars (New York: Norton, 1987). One needs only to scan its pages to pick up the eerie foreshadowing of the Internet Threat. Litman’s article on the Sony case provides a detailed legal history to back up Ladner’s social history. Jessica Litman, “The Sony Paradox,” Case Western Reserve Law Review 55 (2005): 917–962. Pamela Samuelson has a fine article exploring the jurisprudential impact of Sony’s reasoning. Pamela Samuelson, “The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice Stevens,” Fordham Law Review 74 (2006): 1831–1876. + +The scholarly literature on Napster, copyright, and peer-to-peer technologies generally is both wide and deep. In addition to Litman’s book, some personal favorites include: Raymond Shih Ray Ku, “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology,” University of Chicago Law Review 69 (2002): 263–324; Mark A. Lemley and R. Anthony Reese, “Reducing Digital Copyright Infringement Without Restricting Innovation,” Stanford Law Review 56 (2003–2004): 1345–1434; Jane C. Ginsburg, “Separating the Sony Sheep From the Grokster Goats: Reckoning the Future Business Plans of Copyright-Dependent Technology Entrepreneurs,” University of Arizona Law Review 50 (2008): 577–609; Justin Hughes, “On the Logic of Suing One’s Customers and the Dilemma of Infringement-Based Business Models,” Cardozo Arts and Entertainment Law Journal 22 (2005): 725–766; Douglas Lichtman and William Landes, “Indirect Liability for Copyright Infringement: An Economic Perspective,” Harvard Journal of Law and Technology 16 (2003): 395–410; and Glynn S. Lunney, Jr., “Fair Use and Market Failure: Sony Revisited,” Boston University Law Review 82 (2002): 975–1030. + +In addition to these articles, a number have focused specifically on alternative methods of encouraging cultural production while maximizing technological and cultural freedom. Two that have profoundly influenced my own thinking are Neil Weinstock Netanel, “Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing,” Harvard Journal of Law and Technology 17 (2003): 1–84; and William Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (Palo Alto, Calif.: Stanford University Press, 2004). Fisher, whose presentations and articles reveal a cathedral-like conceptual structure that would have delighted the Encyclopedists, argues powerfully that a system of levies on broadband technology, distributed in proportion to the popularity of the music downloaded could allow us to permit “free” access to music while still compensating musicians. His responses to the problems of measurement, gaming of the system, privacy, and so on will not convince everyone but they represent by far the most systematic treatment of the subject. + +1~ Chapter 5: The Farmers’ Tale: An Allegory + +Imagine that a bustling group of colonists has just moved into a new area, a huge, unexplored plain. (Again, assume the native inhabitants have conveniently disappeared.) Some of the colonists want to farm just as they always did in the old country. “Good fences make good neighbors” is their motto. Others, inspired by the wide-open spaces around them, declare that this new land needs new ways. They want to let their cattle roam as they will; their slogan is “Protect the open range.” In practice, the eventual result is a mixture of the two regimes. Fields under cultivation can be walled off but there is a right of passage through the farmers’ lands for all who want it, so long as no damage is done. This means travelers do not need to make costly and inefficient detours around each farm. In the long run, these “public roads” actually increase the value of the private property through which they pass. They also let the ranchers move their cattle around from one area of pasture to another. The ranchers become strong proponents of “public, open highways” (though some people muse darkly that they do very well out of that rule). Still, most people want open highways; the system seems to work pretty well, in fact. + +Two new technologies are introduced. First, the automobile is developed. Now thieves can drive through the farmers’ fields, stop quickly to grab some corn or a lettuce, and be back on the highway before they can be caught. Of course, the farmers’ costs have also fallen dramatically; now they have tractors to work their fields and trucks to take their products to distant markets. The farmers do not dwell on the benefits of the new technology, however. Understandably, they focus more on the profits they could reap if they could get all the advantages of the technology and none of its costs. They demand new legal protections aimed at producing that result. “What’s good for agriculture is good for the nation,” they say. But now comes the second technological shock—the development of barbed wire. The cost of erecting impassable barriers falls dramatically. The farmers begin to see the possibility of enclosing all of their land, roads and fields alike. This will help them protect their crops from pilfering, but it will also allow them to charge people for opening the gates in their fences—even the gates on public roads. That is a nice extra revenue stream which will, the farmers say, “help encourage agriculture.” After all, more fences mean more money for farmers, and more money for farmers means they can invest in new methods of farming, which will mean everyone is better off, right? + +What is to be done? Assume that each side presents its case to the legislature. There are three obvious possibilities: + +First, the legislature can simply tell each side to work it out amongst themselves. The law will continue to forbid trespass, but we are neither going to make it a crime to put up a barbed wire fence if it blocks legitimate public rights of way nor to make it a crime to cut a barbed wire fence, unless the fence cutter is also a trespasser. The farmers can attempt to enclose land by putting barbed wire around it. Ranchers and drivers can legally cut those fences when they are blocking public rights of way. Trespass remains trespass, nothing more. + +Second, the legislature could heed the ranchers’ fears that barbed wire will permit the farmers not only to protect their own land, but to rob the public of its existing rights of way, turning open highways into toll roads. (The ranchers, of course, are more concerned with the rights of cattle than people, but most drivers agree with them.) As a result, the state could forbid the erection of a barbed wire fence where it might block a public right of way—classing it as a kind of theft, perhaps. + +Third, the legislature could take the farmers’ side. Theorizing that this new automobile technology presents “a terrible threat to agriculture, because of rampant crop piracy,” the state could go beyond the existing law of trespass and make it a crime to cut barbed wire fences wherever you find them (even if the fences are enclosing public lands as well as private, or blocking public roads). To back up its command, it could get into the technology regulation business—making the manufacture or possession of wire cutters illegal. + +The state picks option three. Wire cutting becomes a crime, wire cutters are classed with lock picks and other “criminals’ tools,” and the people who make wire cutters are told their business is illegal. A storm of protest arises in the rural driving community. The wire cutter manufacturers claim that their products have lots of legitimate uses. All to no avail: the farmers press on. They have two new demands. Cars should be fitted with mandatory radio beacons and highways put under constant state surveillance in order to deter crop theft. In addition, car trunks should be redesigned so they can hold less—just in case the owner plans to load them up with purloined produce. Civil libertarians unite with car manufacturers to attack the plan. The farmers declare that the car manufacturers are only interested in making money from potential thieves and that the civil libertarians are Nervous Nellies: no one has anything to fear except the criminals. “What’s good for agriculture is good for the nation,” they announce again. As the barbed wire gates swing shut across the highways of the region, the legislature heads back into session. + +2~ Between Paranoia and Reality: The DMCA + +I have argued that confusing intellectual property with physical property is dangerous. I stand by that argument. Yet analogies to physical property are powerful. It is inevitable that we attempt to explain new phenomena by comparing them to material with which we are more familiar. While the content companies’ tales of “theft” and “piracy” are the most prevalent, they are by no means the only such analogy one can make. In this chapter I try to prove that point. + +The Farmers’ Tale is my allegorical attempt to explain the struggle over the single most controversial piece of intellectual property legislation in recent years, the Digital Millennium Copyright Act, or DMCA.~{Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.).}~ The DMCA did many things, but for our purposes its crucial provisions are those forbidding the “circumvention of copyright protection systems,” the technological measures that copyright holders can use to deny access to their works or control our behavior once we get access. These measures include encryption, controls on how many times a file can be copied, password protection, and so on. Copyright protection systems are, in other words, the digital equivalent of barbed wire, used to add an additional layer of “physical” protection to the property owner’s existing legal protection. But, unlike barbed wire, they can also control what we do once we get access to the property. + +The rules that forbid circumvention of these systems are logically, if not elegantly, referred to as the anticircumvention provisions. They are to be found in Section 1201 of the Copyright Act, an ungainly and lumpily written portion of the law that was inserted in 1998 as part of the complex set of amendments collectively referred to as the DMCA. I will explain the significance of these rules in a moment. My hope is that the analogy to the Farmers’ Tale will make them a little easier to understand—at least for those of you for whom talk of digital rights management, anticircumvention provisions, and network effects is not second nature. + +Notice the differences between this allegory and the “Internet Threat” story line I described in the last chapter. There are two sets of bad guys in the Farmers’ Tale. The greedy thieves (who are still thieves in this story—not heroes) and the greedy farmers who use a genuine if indefinite “threat” posed by a new technology to mask a power grab. The Internet Threat is the story of an industry devastated by piracy, in desperate need of help from the state to protect its legitimate property interests. By contrast, the Farmers’ Tale is the story of a self-interested attempt not only to protect property but to cut off recognized rights of public access in a way that will actually make the whole society worse off. The legitimate role of the state in protecting private property has been stretched into an attempt to regulate technology so as to pick winners in the marketplace, enriching the farmers at the expense of consumers and other businesses. In the long run this will not be good for business as a whole. A patchwork of private toll roads is an economic nightmare. + +That is not the most worrying part of the story: the farmers’ proposals are moving in the direction of regulating still more technology—the mandatory radio beacons and constantly monitored roads conjure up a police state—and all to protect a bunch of hysterical vegetable growers whose political clout far outweighs their actual economic importance. + +Both the Internet Threat and the Farmers’ Tale are, of course, ways to understand what is currently going on in the intellectual property wars. In the digital realm, the part of the farmers is played by the content companies, the recording industry associations, the movie and software trade groups. Pointing to the threat of digital piracy, they demanded and received extra legal protection for their copyrighted content. Unlike earlier expansions—longer copyright terms, more stringent penalties, the shrinking of exceptions and limitations, expansions in copyrightable subject matter—this was not a protection of the work itself; it was a protection of the digital fences wrapped around it, and a regulation of the technology that might threaten those fences. + +What is the significance of this? The digital revolution makes it easier to copy copyrighted content. It also makes it easier to protect that content, and to do so in a more granular and precisely calibrated way. Imagine being able to sell a paperback book that could only be read by the original purchaser or a song that could only be listened to by a particular person in a particular room. Digital rights management technology makes it a lot easier to do these things. Suddenly the copyright owners have considerable physical control over their songs, e-books, and software, even after they have sold them. It is as if the recording industry or the publishers had a representative in your living room. They can use that control not merely to prevent illicit copying but to control and limit usage in ways that go far beyond their exclusive rights under copyright. All of this happens without the law or the state doing anything. Like barbed wire, this is a technological protection measure. + +Like the farmers, the content companies were not content with their barbed wire alone. They wanted legally protected barbed wire in addition to their existing legal rights under copyright. Under the Digital Millennium Copyright Act, it became illegal to circumvent a technical protection measure such as encryption—the digital barbed wire behind which content companies secrete their work—even if what you did with the content when you got past the barbed wire was a fair use; excerpting a fragment of a film for a school presentation, for example, or making a copy of an encrypted audio file for personal use in another device. In other words, by using digital barbed wire, the content companies could prevent citizens from making the “fair uses” the copyright law allowed. This undermines some of the limitations on their exclusive rights that the Copyright Act explicitly carves out in Section 107, and thus shifts the balance of power that the Copyright Act establishes. Cutting barbed wire became a civil wrong, and perhaps a crime, even if the wire blocked a public road. Under most circumstances, making wire cutters was also now against the law. + +The ranchers—whose digital equivalents are communications companies and hardware manufacturers—chafed under these new rules. The most powerful groups managed to get special dispensations. Internet service providers, for example, got a qualified immunity from copyright infringement that occurs over their networks. But ordinary citizens, librarians, and civil libertarians also complained, and they were not as well represented in the legislature. It is true that the new rules may help to prevent illicit copying, but they also strike a blow against the exercise of fair use rights—rights that are important both to free speech and competition. Even if the content companies were absolutely right about the threats from digital piracy, this consequence should make us pause. But critics of the DMCA say that there is little evidence that the content companies are right. They quote some of the empirical studies I mentioned in the last chapter, particularly the ones that show no net negative effect from unauthorized music downloading on CD sales. They claim—and they are on strong ground here—that even if there are some losses from the new copying technologies, there are also benefits. Like the farmers, the critics would argue, the content companies take the benefits of the new technology for granted, but wish the law to step in to ameliorate the harms it also creates. And like the farmers, they are not yet satisfied. Their new proposals go even further—scarily further. Thus runs the critics’ argument. + +The critics of the DMCA conjure up a world in which it will be illegal to lend each other books or songs, where it will be impossible for us to copy even small fragments of digital work for criticism or parody, where encryption research will be severely “chilled,” and where large quantities of the public domain will be enclosed together with the copyrighted content that the DMCA is supposed to protect. (The Electronic Frontier Foundation’s “Unintended Consequences” studies give concrete examples.)~{See Electronic Frontiers Foundation, “Unintended Consequences,” available at http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca. }~ They think the DMCA undoes the balance at the heart of copyright law, that it can be used to entrench existing businesses and their business methods, that it threatens speech, competition, privacy, and innovation itself. In short, they think the DMCA is the worst intellectual property law Congress has ever passed and view the adoption of similar laws around the world with a reaction little short of horror. + +Those who supported the DMCA disagree, of course, and do so honestly. They see rampant piracy as a reality and the threat to fair use as some kind of academic hypothetical rarely encountered in reality. What’s more, many of them do not think fair use is that important economically or culturally. If markets work well, users could be made to pay for the rights that fair use gives—but only if they wanted them. One could buy expensive digital books which one was allowed to share, quote, or copy for classroom use, and cheaper ones which one had to keep to oneself. Remember that for many of the people who supported the DMCA, fair use is something of a “loophole”; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state. (Remember the Sony Axiom from Chapter 4?) They find the analogy of fair use to a public road ludicrous. This film, or book, or song, is mine; anything you do with it, or to it, you do at my sufferance. (Remember the Jefferson Warning from Chapter 2?) + +How has the DMCA worked in reality? Which group’s attitudes were vindicated? Two case studies may help us to answer these questions. + +2~ Infectious Speech: The DMCA and Freedom of Expression + +Jon Johansen, a 16-year-old Norwegian, was the unwitting catalyst for one of the most important cases interpreting the DMCA. He and two anonymous helpers wrote a program called DeCSS. Depending on whom you listen to, DeCSS is described either as a way of allowing people who use Linux or other open source operating systems to play DVDs on their computers, or as a tool for piracy that threatened the entire movie industry and violated the DMCA. + +A little background is in order. When you play a commercial DVD, your actions are partly controlled by a simple encryption scheme called CSS, or the Content Scramble System. The DVD Copy Control Association licenses the keys to this encryption system to the manufacturers of DVD players. Without a key, most DVDs could not be played. The manufacturer then embeds this key in its hardware design in such a way that it is easy for your player to decode and play the movie but hard, at least for a person of average technical competence, to copy the decoded “stream.” + +Because the DVD Copy Control Association will only license keys to manufacturers whose DVD players conform exactly to their specifications, the CSS scheme can also be used to control viewers in other ways. For example, DVD players are required to have one of six “region codes,” depending on where in the world they are sold. Region 1 is the United States and Canada. Region 2 is Japan, Europe, South Africa, the Middle East, and—bizarrely—Greenland. Region 3 is South Korea, Taiwan, and Hong Kong; and so on. The CSS scheme can be used to restrict a movie to a player with the appropriate region code. If you try to play a movie coded for region 6 (China) in a DVD player from region 1, it will not play. This allows filmmakers to distribute different versions of films to different regions at different times based on sequential release in cinemas, or simply to distribute DVDs with different prices to different regions without worrying about whether the cheaper DVDs will “leak” into the more lucrative markets. CSS and the hardware scheme that unlocks it can also be used to prevent you from fast-forwarding through the commercials at the beginning of the movie if the copyright owner does not want you to, or from skipping the FBI notice. The machine will not do it. In fact, it is deliberately built so that it cannot do it. + +What we have here is a digital fence that is partly used to prevent copying. Movie studios are understandably worried about the worldwide circulation of perfect digital copies of their movies. CSS was supposed to help to prevent that, or at least make it much harder. But because almost all movies are encrypted with CSS and access to the keys comes with conditions, CSS also allows a more fine-grained control over consumers. Manufacturers are not allowed to make players which can view movies from all region codes or skip portions of the DVD that the owners do not want you to skip. The licensing body puts it this way on its Web site: “Q. Under the terms of the CSS licensing agreement, is it legal for a licensed manufacturer to produce and sell a product which allows a user to disable any CSS protections? A. No. Such products are not allowed under the terms of the CSS license. They are illegal.”~{See DVD Copy Control Association, “Frequently Asked Questions,” available at http://www.dvdcca.org/faq.html. }~ A technology introduced to protect intellectual property rights allows control in ways that those rights alone do not. + +Before the DMCA, the movie companies could have done exactly this. They could have wrapped their movies in a digital fence. The consumer electronics companies that wanted to could license a key and be allowed to use a trademark that indicated that they were approved by the DVD Copy Control Association. But what if a manufacturer of DVD players felt that American consumers wanted to be able to play their Japanese anime movies without buying another DVD player to do so? Or what if they thought people were antsy and did not want to watch the FBI notice before every film? The manufacturer could have tried to “reverse engineer” the CSS system, to figure out how it worked. If they succeeded, they could make a player that was free of the restrictions that the CSS licensing authority imposed. + +Of course there were some legal limitations even before the DMCA. Our hypothetical manufacturer could not break into the safe where the CSS code was being held or bribe an employee to provide it. (That would be a trespass or a violation of trade secret law.) It could not violate copyright laws over the various types of software that controlled DVD players. It could not use the trademarks of any of the entities involved, including any seal of approval granted by the DVD Copy Control Association. But it could—at least in the United States—try to reverse engineer the product so as to make a competing product with features that the customers liked more. It would be no more illegal than a company making a cheaper generic razor cartridge that fits my expensive Gillette Mach 3 razor, a generic printer cartridge to replace the expensive one in my Lexmark printer, or, for that matter, a generic remote control for my garage door opener. In each case, of course, the original manufacturer would prefer that I use their products rather than the unlicensed ones. They can design their product to make it hard to use a generic replacement or even tell me that my warranty will be void if I use one. But they cannot say that the unlicensed product is illegal. We are back in option one of the Farmers’ Tale, before the legislature acted. The farmers can put up their wire, and even use it to block passage that would be otherwise legal, but it is not a crime to figure out a way through the fence unless the fence cutter is also a trespasser. The DMCA, however, might have changed all of that. + +Let us return to Mr. Johansen, the 16-year-old Norwegian. He and his two anonymous collaborators claimed that they were affected by another limitation imposed by the CSS licensing body. At that time, there was no way to play DVDs on a computer running Linux, or any other free or open source operating system. (I will talk more about free and open source software later.) Let’s say you buy a laptop. A Sony Vaio running Windows, for example. It has a slot in the side for DVDs to slide in and software that comes along with it which allows the DVD reader to decode and play the disk. The people who wrote the software have been licensed by the DVD Copy Control Association and provided with a CSS key. But at the time Mr. Johansen set out to create DeCSS, the licensing body had not licensed keys to any free or open source software developers. Say Mr. Johansen buys the Sony Vaio, but with the Linux operating system on it instead of Windows. The computer is the same. The little slot is still there. Writing an open source program to control the DVD player is trivial. But without the CSS key, there is no way for the player to decode and play the movie. (The licensing authority later did license an open source player, perhaps because they realized its unavailability gave Mr. Johansen a strong defense, perhaps because they feared an antitrust suit, or perhaps because they just got around to it.) + +Mr. Johansen and his supporters claimed strenuously that DeCSS was not in fact an aid to illicit copying. In fact, they argued that CSS was not really designed to protect DVDs against illicit copying. Commercial DVD “pirates” do not need to crack the CSS encryption. Quite the contrary: they produce exact copies of the DVD, CSS encryption and all, and the buyer’s player dutifully decodes it and plays it. Mr. Johansen claimed that his goals were very different from those of the pirates. + +_1 The motivation was being able to play DVDs the way we want to. I don’t like being forced to use a specific operating system or a specific player to watch movies (or listen to music). Nor do I like being forced to watch commercials. When your DVD player tells you “This operation is not allowed” when you try to skip commercials, it becomes pretty clear that DRM really stands for Digital Restrictions Management.~{Thomas Mennecke, “Slyck.com Interviews Jon Lech Johansen” (April 4, 2005), available at http://www.slyck.com/news.php?story=733. }~ + +In Mr. Johansen’s view, CSS was simply an attempt to control consumers, an attempt which should be a valid target for legal reverse engineering. He has a point. There were indeed other ways to copy DVDs which did not require DeCSS and which gave you files of more manageable size. CSS was indeed more than a simple anticopying device. The entire scheme—the keys, the licenses, the hardware requirements—was designed to give movie studios greater control over their movies in a number of ways, some of them unrelated to copying. On the other hand, he overstated the point. One function of CSS was indeed to make it harder for the average person playing a DVD on a computer to copy the file from the DVD to her hard disk and give it to a friend. It is very easy for the average 14-year-old to take a commercial music CD, change the songs into smaller files in the MP3 format, and share them with a friend. It is not as easy to do the same thing to a DVD—not impossible, just harder—and CSS is one of the reasons why. + +Mr. Johansen’s program, DeCSS, was quickly made available worldwide. Mirror sites provided copies of the program and lists of such locations were easy to find using standard search tools. One such list was provided by the online site run by a magazine called 2600: The Hacker Quarterly. The magazine features everything from pictures of pay phones from around the world to tips on how to hack into computer or telephone systems. Its publisher is one Eric Corley, who goes by the name Emmanuel Goldstein—the resistance leader in George Orwell’s 1984. + +In 1999, Universal City Studios brought suit against a number of individuals for distributing DeCSS. The case was called Universal City Studios v. Reimerdes et al. Corley was among the defendants. The suit prominently included a claim that the defendants were violating the DMCA. It was in this case that the DMCA received its first major legal challenge. + +Depending on the characterization of the facts, the case seems to be about very different things. It could seem a classic First Amendment fight. (“Plucky magazine publisher told copyright law forbids him from linking to other sites on the Internet!”) Or it could seem the very essence of illegal activity. (“Shadowy site which unashamedly caters to computer ‘hackers’ tries to spread access to the burglar’s tools of cyberspace!”) + +Of course, most lawsuits involve conflicts over facts. Much of what lawyers do is put the same facts into different conceptual boxes. But here, merely describing what Corley does, what hackers are, or what 2600 magazine is all about involves one in a profound culture clash. The best way to capture the clash may be to quote from an early entry about Corley in Wikipedia, the remarkable online encyclopedia. + +The encyclopedia first quotes the description of 2600 magazine from Judge Lewis A. Kaplan, the federal district court judge who decided the Reimerdes case. + +_1 “2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, how to write more secure ASP code, access other people’s e-mail, secure your Linux box, intercept cellular phone calls, how to put Linux on an Xbox, how to remove spyware, and break into the computer systems at Costco stores and Federal Express. One issue contains a guide to the federal criminal justice system for readers charged with computer hacking. In addition, 2600 operates a web site located at 2600.com (http://www.2600.com), which is managed primarily by Mr. Corley and has been in existence since 1995.” + +The Wikipedia article then continues as follows: + +_1 While the judge’s tone is clearly disapproving, others would point out that bookstores, movies and television channels are filled with material on how to commit murder . . . and that without the efforts of the hacker community, however ill-intentioned, computer insecurity would be even more of a problem than it already is.~{As is often the way, these pages have now been modified on Wikipedia. At the time of writing, this excerpt can still be found at http://www.indopedia.org/Eric_Corley.html. }~ + +In fact, Judge Kaplan was not entirely disapproving. He mentions articles in 2600 that cover laudable or innocuous tasks, as well as others about tasks that most readers would find objectionable and rightly think to be illegal. But the anonymous volunteer who wrote this version of Corley’s Wikipedia entry clearly saw the issue differently. Wikipedia does not portray the hacker community as universally benevolent (“however ill-intentioned”), but that community is also seen as providing a useful service rather than merely a set of how-to guides for would-be digital burglars. + +To most people, pointing out vulnerabilities in computer security systems seemed, at least in 1999, like telling the world that your neighbor has forgotten to lock his door and all his possessions are there for the taking. But to the online community, it is by no means so clear. From the perspective of those who are knowledgeable in the field, there is a moral continuum. There is clearly legitimate computer security and cryptography research, which includes attempts to break into computer systems to test their defenses—that is how one finds out they are secure, after all. Then there are “hackers.” This term could be used to describe those who merely like to program. Richard Stallman, for example, the originator of the free software movement, describes himself thus. But the term could also be used for those who are interested in security or interoperability—making two systems work together. That was Mr. Johansen’s declared goal, after all. But some self-described hackers go further. They believe that exploring and disclosing the weaknesses of supposedly secure systems is intellectually fulfilling, practically important, and protected by the First Amendment. They disclaim both moral and legal responsibility for the consequences of their disclosures. (Or at least the negative consequences; they frequently take credit for the positive consequences, such as improved security.) Finally, there are “crackers,” whose interest in gaining entry to computer systems is malicious or for financial gain. At what point on this continuum does the activity become legally, or morally, unacceptable? As the Reimerdes trial went on, it became clear that the answer the DMCA gave might not be the same as the one given even by undeniably legitimate computer scientists. + +A large number of legal arguments were involved in the Reimerdes case, but for our purposes here the most important ones dealt with the relationship between copyright and the First Amendment. What is that relationship? + +In one obvious sense copyright actually aids free speech. By providing an incentive to create works, copyright “add[s] the fuel of interest to the fire of genius,”~{Abraham Lincoln, Lecture on Discoveries and Inventions (April 6, 1858), available at http://showcase.netins.net/web/creative/lincoln/speeches/discoveries.htm. }~ and thus helps to create the system of decentralized creative production and distribution I described in Chapter 1. But copyright also restrains speech. At its base, it allows an individual to call upon the state to prevent someone from speaking or expressing themselves in a particular way. This may involve a simple refusal to let the speaker use some text, picture, verse, or story in their message, or it may involve a refusal to let them transform it in some way. + +Neither copyright law nor the American Constitution is blind to these dangers. Copyright has a number of built-in safeguards. The most important of these is that copyright only covers “original expression”—both the ideas and facts in this book can be used by anyone without my permission. Thus, goes the theory, the speaker’s freedom of expression is never truly restrained. The only thing I am barred from is using your words, your exact plot, your photograph, your music—not your facts, your ideas, your genre, the events you describe. + +That is not always enough, of course. Sometimes the problem is that the speaker cannot paraphrase around the restraints posed by copyright. He needs to use the particular text or image in question to convey his message. The ideas, the facts, or a mere paraphrase of the expression would not be enough. In cases like that copyright’s answer is “fair use.” A politician could not prevent journalists who disagree with him from quoting his autobiography in discussing his life. If an African-American author wishes to tell the story of Gone With the Wind from the slaves’ perspective, she may do so in the face of the copyright holders’ attempts to stop her. Even fair use, though, may not cover every concern about free expression. Before World War II, Alan Cranston—later a U.S. Senator—wanted to convince American readers that the version of Hitler’s Mein Kampf published in the United States was distorted. He believed it to be slanted toward American sensibilities, downplaying both anti-Semitism and German expansionism. His solution? To publish his own English translation, taken direct and uncut from the German edition. He wanted to prove, with Hitler’s own words, that the United States had a dangerously distorted version of the German leader. But this is the kind of thing copyright law forbids and it is not clear that fair use allows. (In the end he did it anyway.)~{See Neil Weinstock Netanel, “Locating Copyright Within the First Amendment Skein,” Stanford Law Review 54 (2001): 15 (citing Houghton Mifflin Co. v. Noram Publ’g Co. , 28 F. Supp. 676 (S.D.N.Y. 1939); Houghton Mifflin Co. v. Stackpole Sons, Inc. , 104 F.2d 306 (2nd Cir. 1939) (upholding the validity of the U.S. copyright in Mein Kampf); Anthony O. Miller, “Court Halted Dime Edition of ‘Mein Kampf’: Cranston Tells How Hitler Sued Him and Won,” Los Angeles Times, February 14, 1988, § 1, 4 (giving Cranston’s version of the case’s underlying facts)).}~ + +For the moment though, it is enough to realize that copyright law is not immune from the First Amendment or from free speech concerns more generally. If we do not notice that most of the time, it is because the internal limitations of copyright—fair use, the idea-expression distinction, and so on—generally take care of the First Amendment issue, not because the issue was never there. + +So what First Amendment issues did the DMCA present? Most obviously, the DMCA gave a new right to copyright owners. By using a few simple technological measures, they could distribute a work in a particular format and yet, because of their new intellectual property right, they could make illegal an otherwise lawful process of gaining access for the purposes of making fair use. Of course, the First Amendment allows me to make fair use factually impossible. I can do that without raising any constitutional issues by hiding my manuscript and never letting you see it or just by using unbreakable encryption on my digital products. It allows me to use existing conventional property rights to make fair use illegal. If I own the only copy of the book and it is inside my house, it would be trespass for you to enter. No First Amendment problem there. But in passing the DMCA, Congress had created a new intellectual property right inside copyright law itself, a law aimed directly at expression, that made it illegal to get access for the purpose of making fair use even when you legally bought the physical book, or the physical DVD, and now wish to quote it or parody it. Even that is not the problem. It is that Congress cannot grant the exclusive rights of copyright without simultaneously accompanying them by the limitations of fair use.~{The Corley court was uncertain about this point. (“Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement.”). Universal City Studios v. Corley, 273 F.3d 429, 458 (2d Cir. 2001). In my view, both logic and those “isolated statements” suggest that fair use is required. As I point out later, when the Supreme Court revisited the matter in the case of Eldred v. Ashcroft, 537 U.S. 186 (2003), it stressed that it was precisely the internal limitations such as fair use that made copyright law normally immune to First Amendment scrutiny. The Court added “when . . . Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” Ibid. at 221 (citing Harper & Row, 471 U.S. at 560). Yet that is exactly what the DMCA does: alters “the traditional contours of copyright protection” by handing out the exclusive right at the same time as it confers a legal power to remove the privilege of fair use.}~ Regardless of what physical constraints and tangible property rights might do to limit my ability to make fair uses, Congress had now, by law, allowed a copyright owner to distribute a particular work with the exclusive rights but without some of those limitations. + +Imagine that Congress had passed the following law instead of the DMCA: “Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circumvent the red dot even if, but for the dot, the use would have been fair.” That would be clearly unconstitutional. It gives copyright owners a new intellectual property right to “turn off fair use” in copyrighted works distributed to the mass market. Is the DMCA not the same thing? + +This was the issue in Reimerdes. True, if I cut through the digital fence on a DVD in order to excerpt a small portion in a critical documentary, I would not be violating your copyright, but I would be violating the anticircumvention provisions. And DeCSS seemed to be a tool for doing what the DMCA forbids. By providing links to it, Mr. Corley and 2600 were “trafficking” in a technology that allows others to circumvent a technological protection measure. DeCSS could, of course, be used for purposes that did not violate copyright—to make the DVD play on a computer running Linux, for example. It enabled various noninfringing fair uses. It could also be used to aid illicit copying. But the alleged violation of the DMCA had nothing to do with that. The alleged violation of the DMCA was making the digital wire cutters available in the first place. So one First Amendment problem with the DMCA can be stated quite simply. It appeared to make it illegal to exercise at least some of the limitations and exceptions copyright law needs in order to pass First Amendment scrutiny. Or did it just make it very, very difficult to exercise those rights legally? I could, after all, make a videotape of the DVD playing on my television, and use that grainy, blurry image in my documentary criticizing the filmmaker. The DMCA would not be violated, though my movie might be painful to watch. + +The other possible First Amendment problem with the DMCA was that in regulating programs such as DeCSS, the DMCA was actually regulating “speech.” The first challenge to the DMCA was that, by making tools like DeCSS illegal, the DMCA took away a constitutionally necessary escape hatch to copyright, thus making copyright law as a whole violate the First Amendment’s guarantee of freedom of speech. The second challenge was different. The problem was that the program itself was speech and the DMCA was regulating it illicitly. + +The reasoning went like this. A computer program is a form of expression and communication. The source code can even be read by human beings. True, it is an abstract form of communication—like musical notation and mathematical algorithms. But those are clearly protected by the First Amendment. Congress could not make Schoenberg’s twelve-tone scale illegal or punish mathematicians for physics equations that seemed to support a theory of the universe’s origin other than the creationism that is currently so popular. True, the source code is a description of a method of doing something, and the code can, if run on a computer, produce a result—but one could argue that those attributes do not affect the First Amendment’s protection. Neither a recipe for hash brownies nor a player piano roll for the Nazi “Horst Wessel” song could constitutionally be prohibited, even though actually to make the hash brownies would be illegal, and even though the piano roll is functional (it “makes” the player piano play the tune). True, most people cannot read computer code, but speech does not need to be common or accessible to be protected. In fact, the courts have even held that the choice to communicate in a particular language is constitutionally protected in some settings. + +On the other hand, software code is undeniably functional. Lots of functional articles can be said to have some expressive content—a gun, an airbag, a crash helmet, a set of burglar’s tools, a computer virus. And many actions have expressive content: a terrorist bombing, for example. Surely these could be regulated by Congress? To the defendants, DeCSS looked like a physics equation, a musical score, or a recipe. To the movie studios, DeCSS had all the First Amendment significance of a crowbar, lock pick, or, for that matter, a car bombing. The same argument was repeated over the hyperlinks that Corley and others provided to sites which carried the DeCSS program. Speech or function? To the defendants, forbidding 2600 to link to these sites was like preventing the Washington Post from describing the availability of drugs on certain blocks of 16th Street. To the movie companies, the hyperlinks were the equivalent of loading potential buyers into a van, taking them down there, and giving them enough money to make the purchase. + +Which of the two First Amendment arguments is more convincing? That the DMCA is a congressionally created off-switch for fair use? Or that software code is speech and the DMCA restricts it? Like a lot of scholars, before Reimerdes went to trial, I thought that the first argument was by far the more powerful. I still do. I thought the odds of the court buying the “code is speech” argument were low. About that I was wrong, though it turned out not to matter. + +A number of the reports noted that after some initial skepticism, Judge Kaplan had been impressed by the defendants’ expert witnesses, particularly those who had testified that code was speech. When the ruling came out, this impression was confirmed. Judge Kaplan agreed that code was a form of speech or expression. But celebration was premature. Having done so, he disagreed with the defendants’ claim that it could not be regulated. + +_1 Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin’s action. In an era in which the transmission of computer viruses—which, like DeCSS, are simply computer code and thus to some degree expressive—can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination of code in appropriate circumstances. The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact.~{See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 304–5 (S.D.N.Y. 2000).}~ + +Judge Kaplan is right in saying that there cannot be a bright-line rule immunizing computer code from regulation merely because it has expressive elements. The First Amendment does not protect computer viruses. But the defendants were not arguing that computer code was constitutionally inviolable, only that any law that regulated it had to be subject to First Amendment scrutiny. After all, the government makes the description of how to make a nuclear weapon classified information. That is clearly “speech,” but its regulation is also constitutional. The First Amendment is not, and never was, an absolute guarantee of freedom of speech. Instead, the question is whether the law is within the realm of “the freedom of speech” guarantee, which in turn depends on what kind of a law it is. Where does it fit in the “levels of scrutiny” that courts have constructed to discriminate between types of legislation affecting speech? Is the DMCA a “content-based” regulation, such as a law forbidding labor picketing but allowing other kinds of demonstrations? Content-based regulations are given the highest and most demanding level of scrutiny. Alternatively, is it a “content-neutral” regulation, such as a law that forbids talking—about any subject—in a library? To Judge Kaplan, the answer was clear, and grounds for sarcasm. + +_1 The reason that Congress enacted the anti-trafficking provision of the DMCA had nothing to do with suppressing particular ideas of computer programmers and everything to do with functionality—with preventing people from circumventing technological access control measures—just as laws prohibiting the possession of burglar tools have nothing to do with preventing people from expressing themselves by accumulating what to them may be attractive assortments of implements and everything to do with preventing burglaries. + +I agree, though it is worth noting that the burglar tool analogy is a disputed one. Johansen claimed DeCSS was more like a screwdriver—something with both licit and illicit uses. + +So the DMCA was content-neutral regulation. That means it still has to pass a fairly daunting legal threshold. It will only be upheld if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”~{Ibid., 329–30 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1997) (quoting U.S. v. O’Brien, 391 U.S. 367, 377 (internal quotations omitted)).}~ Judge Kaplan felt that the DMCA satisfied that standard. I am not so sure. Yes, the governmental interest in protecting copyright holders’ rights is important. And yes, I must disagree with some of my friends in the civil liberties world and say that the government’s interest is unrelated to the suppression of free expression. But is “the incidental restriction of First Amendment freedoms no greater than is essential to the furtherance of that interest”? In other words, could the DMCA have achieved its goals without imposing as great a limitation on the expression of people like Mr. Johansen and Mr. Corley? + +Congress could have passed many laws less restrictive than the DMCA. It could have only penalized the use of programs such as DeCSS for an illicit purpose. If it wished to reach those who create the tools as well as use them, it could have required proof that the creator intended them to be used for illegal purposes. Just as we look at the government’s intention in creating the law, we could make the intent of the software writer critical for the purposes of assessing whether or not his actions are illegal. If I write a novel detailing a clever way to kill someone and you use it to carry out a real murder, the First Amendment does not allow the state to punish me. If I write a manual on how to be a hit man and sell it to you, it may. First Amendment law is generally skeptical of statutes that impose “strict liability” without a requirement of intent. But Judge Kaplan believed that the DMCA made the motives of Mr. Johansen irrelevant, except insofar as they were relevant to the narrowly tailored exceptions of the DMCA, such as encryption research. In other words, even if Mr. Johansen made DeCSS so that he and his friends could watch DVDs they purchased legally on computers running Linux, they could still be liable for breaking the DMCA. + +The DMCA’s breadth goes further than its treatment of intent. The statute could have only made it illegal to provide a program yourself. But Judge Kaplan interpreted it to prohibit even linking to a site where the program is to be found. No requirement of intent. No requirement that you actually supply the infringing program. That is a pretty broad interpretation and one which he admits restricts expression. How could he conclude that restrictions this broad were “no greater than essential”? From his rhetoric, the answer is clear. Judge Kaplan believes the story of the Internet Threat I discussed in Chapter 4. He sees DeCSS as a poison. In fact, he thinks it is worse than a poison because it may spread to infect others. It is a disease, a virus. The DMCA is the stern and harsh quarantine required to control it—a digital public health measure. His reasoning is worth quoting at length. + +_1 There was a time when copyright infringement could be dealt with quite adequately by focusing on the infringing act. . . . The copyright holder . . . usually was able to trace the copies up the chain of distribution, find and prosecute the infringer, and shut off the infringement at the source. In principle, the digital world is very different. Once a decryption program like DeCSS is written, it quickly can be sent all over the world. Every recipient is capable not only of decrypting and perfectly copying plaintiffs’ copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling every recipient to do the same. . . . The process potentially is exponential rather than linear. Indeed, the difference is illustrated by comparison of two epidemiological models describing the spread of different kinds of disease. In a common source epidemic, as where members of a population contract a non-contagious disease from a poisoned well, the disease spreads only by exposure to the common source. If one eliminates the source, or closes the contaminated well, the epidemic is stopped. In a propagated outbreak epidemic, on the other hand, the disease spreads from person to person. Hence, finding the initial source of infection accomplishes little, as the disease continues to spread even if the initial source is eliminated.~{Ibid., 331–332.}~ + +This is a very good point, and one that the critics of the DMCA sometimes gloss over too quickly. The structure of digital replication is indeed different from the old centralized model of copying and distribution. Instead of tracing all illicit copies back to a single infringing printing press, we face the fear that the machinery of piracy can be copied just as fast as the copies it allows us to make. + +It is here that the defendants lose the battle of the metaphors. Yes, code is speech, it conveys information. But viruses are codes and they convey information too. Judge Kaplan explicitly invokes this comparison several times. Biological viruses are tools for the replication of genetic information. They subvert their hosts’ cellular programming to make copies of themselves, just as a computer virus hijacks an infected computer and causes it to send out more copies of the virus. True, DeCSS requires human intervention to download the program and use it. Yet from Judge Kaplan’s language it is evident that he sees the program not as an act of expression but as a virus spreading like wildfire. Seen this way, the individual “choices” to download or redistribute are simply the program’s method of spreading itself, like the irritation produced by the cold virus that encourages sneezes and coughs, thereby transmitting the illness to others. Just as in an epidemic, the harshest measures are called for. There is no poisoned well here, no pirate with a printing press we can shut down. Anyone is potentially an infringer. Individuals cannot be presumed to be healthy. We cannot give their immune systems, or their motives, the benefit of the doubt. Instead we must see them as potential carriers. The healthy must be quarantined as well as the sick. Facing such a danger, Judge Kaplan agrees that Congress needed to be draconian. We cannot wait for illegal copying. We must strike preemptively at the technology that might enable it. There is no place for inquiries into “intent” here; no way that we can restrict liability to those who actually provide the program. Thus, though “code is speech” and the DMCA does incidentally restrict expression, Judge Kaplan concludes that its restraints are no greater than is necessary. + +There are three questions here. The first is whether Congress was right. The second is whether, in the context of the movie industry, we can see evidence of the evil it needed to combat. The third question is very different: whether the DMCA is constitutional. In my opinion, the answer to questions one and two is no, for the reasons outlined in Chapter 4’s analysis of the Internet Threat. Yes, cheaper copying can increase the rate of illicit copying, but it also lowers advertising costs and offers new business models—Netflix, downloads on demand, viral distribution of trailers, and so on. The technology helps as well as hurts. It does not help the movie industry as much as it might help the music industry, which can more easily distribute its products over the Internet. But the Internet also does not pose as much danger to movies as it does to music. The movie industry’s doomsaying aside, there is no exact movie equivalent of Napster and there is unlikely to be one in the near future.~{One empirical study seems to challenge this assumption, though at modest levels. Rafael Rob and Joel Waldfogel, “Piracy on the Silver Screen,” Journal of Industrial Economics 55 (2007): 379–395. Rob and Waldfogel surveyed college students—traditionally a population that engages in high levels of downloading since they have “free” and extremely high speed Internet connections, lots of leisure time, and low disposable income. Even among this group, the authors found that total levels of downloading were low—2.1 percent of paid consumption. The authors also assumed that all unpaid downloading or DVD burning was equal to piracy—an assumption that is clearly false. The Sony case makes that clear. In fact, Rob and Waldfogel found a positive relationship between second time unpaid viewings and future paid viewings; watching the movie a second time on a downloaded or privately made copy burned from the airwaves actually was associated with more paid purchases. The authors were skeptical of any causal link, however. Ibid., 389.}~ + +This is not just because movies are longer and harder to download than songs. It is because most people only watch a film once. Most people do not want a library of two thousand films to play again and again. Music is a repeated experience good in a way that movies simply are not, and that social fact profoundly affects the likelihood of downloading as opposed to rental. The transient song on a radio or an Internet stream is not an adequate substitute for possessing the song permanently—something which costs a lot more. Apart from kids’ movies, which can be used to induce catatonia in one’s progeny time and again, and a few classic favorites, most people do not want to own movies. Watching the film on television or renting it for a night is perfectly satisfactory. Both of these involve little hassle or cost. The content industries are fond of saying “you cannot compete with free.” But this is simply not true. Cheap and easily acquired goods of certified quality compete very well with free goods of uncertain quality whose acquisition involves some difficulty. This is one of the main reasons the movie companies were wrong in the Sony case. + +Thus while Judge Kaplan’s discussion of the looming digital Black Death is nicely apocalyptic, it does not seem very accurate. How many of your friends download movies illicitly over the Internet, let alone movies that were ripped from DVDs? Yes, it can be done. But the actual descriptions of the process in the Reimerdes case smack more of bathos than terror. + +_1 Although the process is computationally intensive, plaintiffs’ expert decrypted a store-bought copy of Sleepless in Seattle in 20 to 45 minutes. . . . The decryption of a CSS-protected DVD is only the beginning of the tale, as the decrypted file is very large. . . . One solution to this problem, however, is DivX, a compression utility available on the Internet that is promoted as a means of compressing decrypted motion picture files to manageable size. . . . While the compressed sound and graphic files then must be synchronized, a tedious process that took plaintiffs’ expert between 10 and 20 hours, the task is entirely feasible. . . . At trial, defendants repeated, as if it were a mantra, the refrain that plaintiffs, as they stipulated, have no direct evidence of a specific occasion on which any person decrypted a copyrighted motion picture with DeCSS and transmitted it over the Internet. But that is unpersuasive. Plaintiffs’ expert expended very little effort to find someone in an IRC chat room who exchanged a compressed, decrypted copy of The Matrix, one of plaintiffs’ copyrighted motion pictures, for a copy of Sleepless in Seattle. While the simultaneous electronic exchange of the two movies took approximately six hours, the computers required little operator attention during the interim. + +So the epidemic threat that hangs over the movie industry consists of the danger that someone will spend fifteen minutes decrypting and ten to twenty hours tediously synchronizing a movie that is then available for a speedy six-hour download? + +Admittedly, someone only needs to do the synchronizing once. There are newer tools that make the task easier. And we could improve the download time. But even so, would you bother? Faced with the colossal expense and hassle of renting the same movie at Blockbuster for $3, some consumers might prefer this process, I suppose. But I would not sell my shares in movie studios quite yet. In fact, the real threat to movie studios is the large-scale criminal distribution of illicitly copied DVDs—copied bit for bit from the original. The distributors of those do not need to use programs like DeCSS. A more distant threat comes from legal recordings from television made on TiVo’s and ReplayTVs—where consumers’ actions are legal and CSS is not an issue. So far as we can tell, there is no measurable effect of illicit digital downloads on sales or rentals of DVDs. We could go through the process Judge Kaplan describes, I suppose, just as when the VCR was invented we could have taped movies from television and swapped them with our friends. But as the movie studios discovered after the Sony case, most of us would rather just rent the movie. Because something is possible does not mean it will happen. + +So in my view, Congress generally overestimated the threat posed by the digital world and underestimated the benefits. In addition, the movie industry is a weak place to make the case for the necessity of the DMCA. Fine, but that is not the legal issue here. The constitutionality of the DMCA does not turn on whether the DMCA was a good idea. That is not the court’s decision to make. The question is not even whether the particular industry involved is, in reality, facing much of a threat from digital downloading. The law, after all, exists for all digital works, not just the ones at issue here. The question is whether the restriction on speech imposed by the DMCA was “no greater than is essential.” And that is a harder question. + +I still disagree with Judge Kaplan. A more narrowly tailored statute could have accomplished the DMCA’s legitimate goals without impinging as greatly on expression. I think that the rhetoric of the Internet Threat blinded Judge Kaplan to some important issues and led him to overestimate the danger and thus the severity of the measures necessary to combat it. Thus, even under the “code is speech” part of the analysis, I think the DMCA fails First Amendment scrutiny. But if we are confining ourselves to the expression inherent in the software itself, I acknowledge that it is a close call. + +Sadly, Judge Kaplan spent much less time on the other First Amendment argument against the DMCA—that it is unconstitutional because it gives copyright holders a new intellectual property entitlement, created by Congress under the Copyright Clause, a legal power to deprive users of a constitutionally required limitation on copyright’s exclusive rights. In my view, he also framed the argument wrongly when he did discuss it. To be fair, these problems can partly be traced to the fact that the defendants spent most of their energy on the argument that code was expression, paying less attention to everything else. As Judge Kaplan explained it, the claim was that the DMCA might have the effect of restricting an alleged fair use right of access to copyrighted material. Predictably enough, he responded that there was no such right of access. Copyright holders could always lock up the book or restrict entrance to the gallery. In any event, while fair use of DVDs might be curtailed, he argued that most movies are also available on videotape. Even if the film were only available on DVD, the prospective fair user could write down the words and quote them, or record the sound from the screen. Finally, Judge Kaplan pointed out that even if the DMCA might allow a significant erosion of fair use to develop over time, such a problem was not present here. Those making First Amendment claims are sometimes allowed by courts to show that, even if the law as it applied to them were constitutional, it would restrict the First Amendment rights of others. Judge Kaplan declined to apply that doctrine here. In effect, he said “come back when there is a problem.” + +On appeal, the case was decided by a panel led by Judge Jon Newman. Here the fair use argument received more attention but the result was the same: “Come back when there is a problem.” Significantly, both courts pointed out another concern. The DMCA could effectively make copyright perpetual because even though the copyright term would expire, the legally protected encryption would continue, and tools such as DeCSS, which would have allowed access to the public domain work, would be illegal.~{Admittedly, section 1201 only affects works protected under the copyright act, so arguably the legal protection of the digital fence would expire with the copyright term. But even if the courts interpreted the statute this way, two problems would remain. First, since the DMCA prohibited the trafficking in tools which allowed the breaking of the encryption, the law would have effectively forbidden the production of wire cutters for gaining access to identically encrypted public domain works—remember Judge Kaplan’s discussion of the irrelevance of Mr. Johansen’s motives. Second, it would be trivially easy to add a trivial amount of new copyrighted material to the work that had fallen into the public domain. Access to the public domain work would then be prohibited for another period of life plus seventy years. And so on. The Copyright Office holds hearings on the question of whether there are any “classes of work” that need exemption from the DMCA’s provisions. So far, those exemptions have been highly restrictive in application.}~ This is a major issue because it appears to violate both the First Amendment and the Copyright Clause’s requirement of a limited time. The defendants did not spend adequate time on this argument, however, and the courts again left it for later consideration. + +The court of appeals saw the defendants’ argument in just the same way as Judge Kaplan had seen it: a claim that there was a fair use right of actual access to the finest version of every work in every medium, on which the DMCA put a practical limitation. Such a claim was easy to dismiss. There was no such right of guaranteed practical access. Copyright owners could restrict the practical ability to exercise fair use in many ways without the Constitution being involved. In addition, in a world where copyrighted content is frequently available in both analog and digital form, the actual effects of the DMCA might be trivial and were, in any event, constitutionally acceptable. Judge Newman repeated Judge Kaplan’s point that one could always make fair use of the work in a way the DMCA did not reach, such as by videotaping a picture of the screen. + +_1 The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original. + +Once the issue is framed this way, the case has been lost. I would argue that there are three baseline errors here: a focus on “affirmative rights of access” as opposed to limits on Congress’s power in handing out exclusive rights over expression without their constitutionally necessary limitations, a focus on practical effects of the provisions rather than on formal constitutional limitations on the copyright system over all classes of works, and a confusion between intellectual property rights and physical property rights that goes to the heart of the Jefferson Warning discussed in Chapter 2. The question is not whether users have a constitutionally protected right of practical access to a preferred version of a work. The question is whether it violates the First Amendment for Congress to give to copyright holders an intellectual property right to exempt their copyrighted works in some formats from fair use and other provisions that are necessary for copyright law in general to be constitutional. + +Remember my earlier example. What if Congress amended Section 1201 to say “Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circumvent the red dot even if, but for the dot, the use would have been fair”? This statute, I think, is clearly unconstitutional. It would be no answer to say that some owners will not use the red dot, and even for those that do, there will be older, dotless versions still available. It is irrelevant that I might be able to copy down the crucial lines of the book over your shoulder while you read it and thus claim that I, personally, had not circumvented the dot. The unconstitutionality of the statute does not turn on whether the dots might fall off because of bad adhesive, or whether there are many secondhand bookstores in the area, in which undotted volumes can be found. Even if the red dot rule were only to be applied to hardback books, or graphic novels, or cassette tapes, it would still be unconstitutional. Nor do we have to wait until the entire marketplace is dominated by red-dotted products before considering the issue. It is no answer to say that even before the red dot rule, copyright holders could always have hidden their works, or locked them in safes, or even negotiated individual contracts with the purchasers that have the effect of limiting fair use. That way of framing it just misunderstands the issue on a fundamental level. The claim is not about the happenstance of practical access or the way that a copyright holder can use physical control of an object or existing tangible property rights to undercut fair use. + +The point is that Congress violates the First Amendment when, with respect to any work, it gives me an intellectual property right to prohibit copying and distribution of an expressive work sold in the marketplace and an additional legal power to opt out of the limitations contained in Section 107 over that work. The bundle of rights conveyed by the DMCA does exactly that. It is not the DMCA alone that we must analyze. The question is whether Congress can give the exclusive rights contained in Section 106 of the Copyright Act over a particular class of works (say digital works), if it also gives a new right to prohibit citizens from gaining access to those works for the purposes of making a fair use. If Judge Kaplan and Judge Newman are correct, then the DMCA gives an entirely new intellectual property right (technically, a legal power) to the copyright holders to do exactly that. To put it the other way around, the DMCA subtracts from the citizen’s bundle of entitlements under federal copyright law, the right (technically, lawyers would call it a privilege) to gain access to a work legally in his possession for the purpose of making a fair use. It is that rule change that is unconstitutional, I would argue, and the way Judge Kaplan and Judge Newman frame that issue makes them miss the point. + +Framing is important. The confusions that I have talked about in this book all make an appearance. It starts with the whole controversy being framed by the Internet Threat story line from Chapter 4. Because Judge Kaplan is convinced that every citizen is now a potential infringer, a potentially infectious virus carrier, he is ill disposed to listen to claims about fair use. Civil liberties claims do not do very well in epidemics. It is only right for him to defer to Congress’s perception of the problem and the solution, of course. But he buys so deeply into the magnitude of the threat, the extent of the potential piracy pandemic, that it is very hard for him to take seriously the idea that even here there is a legitimate constitutional fair use claim. + +The Sony Axiom from Chapter 4 is also ignored, or at least undervalued. As I pointed out there, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders. The DMCA continues that logic; its drafters concluded that the right to get access to digital works for purposes of making a fair use must be taken from the bundle of rights possessed by citizens, while the right to enjoin both access and the technologies of access is added to those of copyright holders. Never mind the correctness of such a conclusion as a matter of policy. Are there constitutional limitations on Congress taking such an action? Kaplan and Newman in effect tell us, “not yet.” + +More important than the perception of the threat is the understanding of what intellectual property is all about. In Chapter 2, Jefferson warned us that intellectual property rights are not like physical property rights. In analyzing the DMCA, where do we turn for analogies? To physical property, violence, and theft. The cases analyzing the DMCA are full of analogies to trespass, to breaking and entering, to burglars’ tools, and to safecrackers. Private property carries a lot of baggage with it, but we know it well—it is the place we naturally turn for insight. Even I, in order to point out some of the difficulties with those analogies, had to turn to farmers and barbed wire and public rights-of-way along highways. There is nothing wrong with analogies. They help us understand things that are new by comparing them to things we think we understand better. Analogies are only bad when they ignore the key difference between the two things being analyzed. That is what happens here. + +Jefferson reminded us that intellectual property rights are clearly artifacts of state creation, monopolies whose internal limitations in scope, duration, and so on are just as important as the rights themselves. Jefferson doubts whether even property rights over land can be understood as natural and absolute—copyrights and patents, which cover subject matter that can be infinitely reproduced without diminishing its substance, clearly cannot. They frequently involve a claim to control purchasers’ behavior with respect to some aspect of an artifact after it has been sold to them in the marketplace, making simpleminded analogies to “breaking and entering” inappropriate—the extent of the property in question is precisely the issue in dispute. (When Johansen was tried in Norway under the national computer crime law, the court laconically observed that he had bought the DVDs, and one cannot break into one’s own property—effectively turning the analogy on its head.) Jefferson starts from the baseline that monopoly is the exception and freedom is the rule—any limitations on that freedom have to be justified. That is why he always discusses the right and the limitations on the right as an inseparable pair. One cannot discuss them in isolation. + +Kaplan and Newman are fine, thoughtful judges. They do not altogether ignore those points. But look how the analysis is set up. At several points in the discussion, there seems to be the assumption that copyright owners have entitlements to total control as of right and that fair use is a mere lucky loophole which, because it can be negated by the happenstance of whether one can get physical access, can hardly have major First Amendment status. They keep pointing out that physical control and tangible property rights frequently allow copyright holders to make fair use impracticable. “And so what?” Jefferson might have responded. This is a classic non sequitur. The question is whether the Congress has the power to add a new right of access-denial to the intellectual property monopoly it is constructing, undermining—as to some works and some fair uses—the balance that the law sets up. The citizen is not pleading for a new right of access, trumping all physical restraint and tangible property rights. The citizen is claiming that Congress has no power to give exclusive rights to restrain copying of digital content while simultaneously taking away the citizen’s existing right to get access to that content for the purposes of fair use—at least in those cases where access is physically possible and violates no other property right, real or intellectual. + +The Constitution does not require the United States to break into President Nixon’s desk to get me his tapes, buy me a tape recorder, or give me a right to 18.5 minutes on the broadcast airwaves to play them. But if I can get access to the tapes legally, it does forbid the government from giving President Nixon the power to put a red dot on those tapes and thus claim an intellectual property right to stop me playing them on TV or digitizing them to make the sounds clearer. The restraints imposed by physical happenstance and tangible property rights are different from those imposed by copyright—a congressionally created monopoly over expression. We cannot assume because one is constitutionally acceptable that the others are too. Jefferson understood that, and his analysis can help us even in a constitutional conflict over a technology he could hardly have dreamt of. (Though perhaps with Jefferson, this is a bad bet.) + +The same point comes up in a different way when the court disconnects the fair use discussion from the exclusive rights discussion. The question is not “Do I have a constitutionally protected right of physical access to a preferred version of a movie, so as to make my task easy?” That gets the court caught up in questions of when a majority of movies will only be available on DVD, or how poor a substitute the analog version would be, or how many fair uses will require actually cutting a digital fence. But all of these inquiries miss the point. The question is “Can Congress hand out the exclusive rights of copyright over digital works if it does not accompany those rights with the suite of limitations that the court has repeatedly said “saves” copyright from violating the First Amendment?” The proportion of digital works to the total number of works produced in other formats is irrelevant. As to these works, the rule is unconstitutional. But what about the number or proportion of types of fair uses affected? That is more relevant but still not dispositive in the way Kaplan and Newman imagined. True, not every trivial statutory modification of fair use makes copyright unconstitutional. But this is not a trivial modification: over an entire class of works, copyright owners are given a legal power to deprive users of their privilege to gain otherwise lawful access for the purposes of fair use. If you give the digital filmmaker the exclusive rights of copyright but forbid the film professor from going through the otherwise lawful process of parodying or quoting, that rule is unconstitutional, no matter how many other fair uses are unaffected. If the copyright law were amended to forbid journalists playing, on a Friday, excerpts of legally acquired red-dotted tapes made by presidents whose last name begins with N, it would still be unconstitutional. + +The legal implementation of this conclusion would be simple. It would be unconstitutional to punish an individual for gaining access in order to make a fair use. However, if they cut down the digital fence to make illicit copies, both the cutting and the copying would be illegal. But what about the prohibition of trafficking in digital wire cutters, technologies such as DeCSS? There the constitutional question is harder. I would argue that the First Amendment requires an interpretation of the antitrafficking provisions that comes closer to the ruling in the Sony case. If Mr. Johansen did indeed make DeCSS to play DVDs on his Linux computer, and if that were indeed a substantial noninfringing use, then it cannot be illegal for him to develop the technology. But I accept that this is a harder line to draw constitutionally. About my first conclusion, though, I think the argument is both strong and clear. + +Ironically, there is some support for my claim and it comes from an even higher, if not uniformly more thoughtful, set of judges than Newman and Kaplan. In the depressing case of Eldred v. Ashcroft, the Supreme Court upheld retrospective copyright term extensions against a variety of constitutional challenges. (Full disclosure: I assisted in the preparation of an amicus curiae brief in the case.) One of those challenges was based on the First Amendment. The fairly reasonable claim was that Congress could not retroactively lock up an entire twenty-year swathe of culture that had already been produced. Such a law would be all restraint of expression, performance, republication, adaption, and so on, with no incentive benefits. The Court was unconvinced. But it did say: + +_1 To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D.C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” . . . But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.~{Eldred v. Ashcroft, 537 U.S. 186 (2003) at 221 (citing Harper & Row, 471 U.S. at 560).}~ + +The DMCA, of course, does exactly this. As to digital works it alters the “traditional contours of copyright protection” in a way that affects “copyright’s built-in free speech safeguards.” That is what the Farmers’ Tale was all about. Perhaps one day, in a case not involving a Norwegian teenager, a hacker magazine run by a long-haired editor with an Orwellian nom de plume, and an obscure technology that is accused of posing apocalyptic threats to the American film industry, that point will come out more clearly. + +But the issue of speech regulation is only half of the story. Intellectual property rights over digital technologies affect not only speech, but the framework of competition and markets as well, as the next example makes clear. + +2~ The Apple of Forbidden Knowledge: The DMCA and Competition + +You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Californian Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA and other laws.”~{Rob Pegoraro, “RealPlayer’s iPod-Compatible Update ‘Stunned’ Apple,” Washington Post (August 8, 2004), F6.}~ + +What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it. So why all the outrage? It turns out that like the story of DeCSS, this little controversy has a lot to teach us about the landscape of intellectual property disputes, about the mental topography of the high-tech economy. But where the DeCSS case was a war of metaphors around the boundaries of freedom of expression, the iPod story is about ways in which intellectual property marks the limits of competition. + +Apple iPods can be used to store all kinds of material, from word processing documents to MP3 files. If you want to use these popular digital music players to download copy-protected music, though, you have only one source: Apple’s iTunes service, which offers songs at 99 cents a pop in the United States, 79 pence in the United Kingdom. If you try to download copy-protected material from any other service, the iPod will refuse to play it. Or at least, that had been the case until Real managed to make their Harmony service compatible. + +Real’s actions meant that consumers had two sources of copy-protected music for their iPods. Presumably all the virtues of competition, including improved variety and lowered prices, would follow. The iPod owners would be happy. But Apple was not. The first lesson of the story is how strangely people use the metaphors of tangible property in new-economy disputes. How exactly had Real “broken into” the iPod? It had not broken into my iPod, which is after all my iPod. If I want to use Real’s service to download music to my own device, where’s the breaking and entering? + +What Real had done was make the iPod “interoperable” with another format. If Boyle’s word processing program can convert Microsoft Word files into Boyle’s format, allowing Word users to switch programs, am I “breaking into Word”? Well, Microsoft might think so, but most of us do not. So leaving aside the legal claim for a moment, where is the ethical foul? + +Apple was saying (and apparently believed) that Real had broken into something different from my iPod or your iPod. They had broken into the idea of an iPod. (I imagine a small, platonic white rectangle, presumably imbued with the spirit of Steve Jobs.) Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, does figuring out how things work, in order to compete with the original manufacturer, count as breaking and entering? In the strange netherworld between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt.” It is true manufacturers want to make lots of money and would rather not have competitors. Bob Young of Red Hat claims “every business person wakes up in the morning and says ‘how can I become a monopolist?’ ” Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn’t your iPod, it’s Apple’s iPod. + +Yet even if they believe this, we don’t have to agree. In the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. To say this is somehow immoral seems laughable. Is the conclusion changed when the information about compatibility is inscribed in binary code and silicon circuits, rather than the molded plastic of a razor cartridge? What if ensuring the “fit” between the two products is not a matter of making sure the new blades snugly connect to the razor but of making sure the software embedded in my generic product sends the right code to the original product in order to be recognized? Our moral intuitions are a little less confident here. All kinds of bad policy can flourish in that area of moral uncertainty. + +This leads us to the law. Surely Apple’s suggestion that the DMCA might prohibit what Real had done is as baseless as their moral argument? In the United States, the answer is “probably,” at least if the courts continue in the direction they are currently taking, but it is a closer call than you would think. Internationally, the answer is even less certain. That is where the iPod war provides its second new-economy lesson. Think for a moment about the way that the law shapes the business choices in this dispute. + +In a competitive market, Apple would choose whether to make the iPod an open platform, able to work with everyone’s music service, or to try to keep it closed, hoping to extract more money by using consumers’ loyalty to the hardware to drive them to the tied music service. If they attempted to keep it closed, competitors would try to make compatible products, acting like the manufacturers of generic razor blades or printer cartridges. + +The war would be fought out on the hardware (and software) level, with the manufacturer of the platform constantly seeking to make the competing products incompatible, to bad-mouth their quality, and to use fear, uncertainty, and doubt to stop consumers from switching. (Apple’s actual words were: “When we update our iPod software from time to time, it is highly likely that Real’s Harmony technology will cease to work with current and future iPods.”) Meanwhile the competitors would race to untangle the knots as fast as the platform manufacturer could tie them. If the consumers got irritated enough they could give up their sunk costs and switch to another product altogether. + +All of this seems fine, even if it represents the kind of socially wasteful arms race that led critics of capitalism to prophesy its inevitable doom. Competition is good and competition will often require interoperability. But what do we mean by competition? Is it competition if I assassinate your employees or poison the food in your restaurant? If I trespass on your land in order to sell a competing product? If I break into your safe to steal your trade secrets, use my monopoly position in the market to impose resale price agreements, or violate your patent? It is the law that draws the line between competition and theft, between virtuous competitive imitation and illicit “piracy.” + +Sometimes we need to give innovators property rights that allow them to prevent second-comers from free riding on their efforts. We have to do so because it is necessary to encourage future innovation. On the other hand, sometimes we not only allow the second-comer to free ride, we positively encourage it, believing that this is an integral part of competition and that there are adequate incentives to encourage innovation without the state stepping in. Intellectual property policy, indeed a large part of the policy behind all property rights, is about drawing the line between the two situations. Too far in one direction and innovation suffers because potential investors realize good ideas will immediately be copied. Too far in the other direction and monopolies hurt both competition and future innovation. + +Imagine you are the first person to invest in getting the public to eat burritos for breakfast, or to place a petrol station at a certain crossroads, or to clip papers together with a folded bit of wire. In each case we give you some property rights. The fast-food vendor may own a trademarked phrase or jingle that the public learns to associate with his product. Since the patent office issued a patent for the sealed and crimped “peanut butter and jelly” sandwich I described at the beginning of the book, even a patent is not out of the question if your disgusting concoction is sufficiently novel and nonobvious. But we should not allow you to have a patent over all burritos, or burritos for breakfast, still less over the idea of fast food. As for the paper clip maker, there might be a trademark over the particular paper clip, but the idea of folding wire to secure paper stays in the public domain. The owner of the petrol station gets physical ownership of the land, but cannot stop a second-comer from setting up shop across the road, even if the first-comer’s labor, capital, and effort proved that the location is a good one. We positively encourage follow-on imitation in those cases. + +Now how about the case in point? What does Apple get in the way of property rights? Think back to my description of the intellectual property system in Chapter 1. They can get patents over those aspects of the iPod—both hardware and software—that are sufficiently innovative. Patents are what we use to protect inventions. They also get a copyright over the various pieces of software involved. That protects them only against someone who copies their code, not someone who writes new software to do the same thing. Copyrights are what we use to protect original expression. They get rights under trademark law over the name and perhaps parts of the design of the product—maybe the distinctive look of the iPod—though that is a bit more complex. All of these rights, plus being the first to break into the market in a big way, the brilliance of the design, and the tight integration between the hardware and the service, produce a formidable competitive advantage. The iPod is a very good product. + +Now if a competitor infringes any of Apple’s rights, for example by making a literal copy of the code, using their trademark in a way the law does not allow, or infringing on one of their patents, then Apple can shut them down and extract hefty damages. Quite right, too. But should they be able to prevent someone from making an interoperable product, provided they do not violate any of these existing rights in the process? Laws like the DMCA make that question more complicated. + +Nowadays, there is software in many, many more products than you would imagine. Your watch, your phone, your printer, your thermostat, your garage door opener, your refrigerator, your microwave, your television—the odds are that if you bought them in the last ten years, they have some software component. In the 1970s the courts and Congress had concluded that software could be copyrighted as original expression, like a song or a novel, as well as being patented when it was novel, nonobvious, and useful. Frequently, different aspects of the same program will be covered by copyright and by patent. But software is a machine made of words, the machine of the digital age. That fact already causes some problems for our competition policy. Will the exceptions and limitations designed to deal with a copyright over a novel work adequately when they are applied to Microsoft Windows? That issue was already unclear. With the DMCA, we have added another crucial problem. Where there is copyrighted software there can be digital fences around it. If the copyright owner can forbid people to cut these fences to gain access to the software, then it can effectively enlarge its monopoly, capture tied services, and prohibit generic competition. + +It was just this line of thought that led some other companies to do more than merely make threatening noises about the DMCA. Lexmark makes printers. But it also makes lots of money off the replacement ink or toner cartridges for those printers. In some cases, in fact, that is where printer companies make the majority of their profits. As a result, they are not exactly keen on generic replacements. Chamberlain makes garage door opener systems. But they also sell replacements for the controllers—the little devices that you use to trigger the door. Lawyers from both of those firms looked at the DMCA and saw a chance to do something most companies would love to do; to make generic competition illegal. Lexmark designed their printer program so that it would not accept a toner cartridge unless it received the correct “checksum” or validation number. So far, this looks no different from the razor manufacturer trying to make it difficult to manufacture a compatible replacement blade. Generic competitors now had to embed chips in their printer cartridges which would produce the correct code, otherwise they would not work in Lexmark printers. + +Static Control Components is a North Carolina company that manufactures chips whose main function is to send the correct code to the printer program. With this chip implanted in them, generic cartridges would work in Lexmark printers. Lexmark’s response could have been to change their program, rendering the chip obsolete, just as Apple could change the iTunes software to lock out Real Music’s Rhapsody. Doing so would have been quite within their rights. Indeed it is a standard part of the interoperability wars. Instead, Lexmark sued Static Controls, claiming, among other things, a violation of the DMCA.~{Lexmark, Int’l v. Static Control Companies, Inc. , 387 F.3d 522 (6th Cir. 2004).}~ Like Apple in the press release I quoted earlier, Lexmark clearly saw this as a kind of digital breaking and entering. This was their printer, their printer program, their market for replacement cartridges. Static was just helping a bunch of cheats camouflage their generic cartridges as authentic Lexmark cartridges. Translated into the legal language of the DMCA the claim is a little different, but still recognizable. Static was “trafficking” in a device that allowed the “circumvention of a technical protection measure” used to prevent “access to a copyrighted work”—namely the computer program inside the printer. That is behavior that the DMCA forbids. + +The garage door company, Chamberlain—who also claimed to be concerned about the security of their garage doors—made a similar argument. In order to get the garage door to open, the generic replacement opener had to provide the right code to the program in the actual motor system. That program is copyrighted. The code controls “access” to it. Suddenly, the manufacturers of generic printer cartridges and garage door openers start to look rather like Jon Johansen. + +Surely the courts did not accept this argument? Bizarrely enough, some of them did—at least at first. But perhaps it was not so bizarre. The DMCA was indeed a radical new law. It did shift the boundaries of power between intellectual property owners and others. And intellectual property rights are always about restraining competition, defining what is legitimate and what is not—that is what they do. There was a respectable argument that these devices did in fact violate the DMCA. In fact, it was respectable enough to convince a federal judge. The district court judge in the Lexmark case concluded that Lexmark was likely to win on both the DMCA claim and on a more traditional copyright claim and issued an injunction against Static Control. In Skylink, the case involving garage door openers, by contrast, the district court held that the universal garage door opener did not violate the DMCA. Both cases were appealed and both appeals courts sided with the generic manufacturers, saying that the DMCA did not prohibit this kind of access—merely making a computer program work the way it was supposed to. + +The U.S. Court of Appeals for the Federal Circuit (CAFC) heard the Skylink appeal. In a remarkably far-reaching decision, the court effectively took many of the positions that Mr. Corley’s lawyers had argued for in the DeCSS case, but they did so not to protect speech, but to protect competition. In fact, they implied that taking Chamberlain’s side in the case would silently overrule the antitrust statutes. They also interpreted the new right created by the DMCA so as to add an implicit limitation. In their construction, merely gaining access is not illegal; only gaining access for the purpose of violating the copyright holders’ rights violates the statute. The Reimerdes court had been willing to accept that the new access right allows a copyright holder to prohibit “fair uses as well as foul.” When Chamberlain made the same argument as to their garage door opener program, the CAFC was incredulous. + +_1 Such an entitlement [as the one Chamberlain claims] would go far beyond the idea that the DMCA allows copyright owner to prohibit “fair uses . . . as well as foul.” Reimerdes, 111 F. Supp. 2d at 304. Chamberlain’s proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use. It would, therefore, allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work—or even selected copies of that copyrighted work.~{Chamberlain Group, Inc. v. Skylink Tech., Inc. , 381 F.3d 1178 (Fed. Cir. 2004). This of course was exactly the claim that Mr. Corley’s lawyers made, to no avail.}~ + +There are multiple ironies here. The CAFC rarely meets an intellectual property right it does not like. It has presided over a twenty-year expansion of American patent law that many scholars find indefensible. But when (for dubious jurisdictional reasons) it sorties beyond its traditional ambit of patent law, it is stunned by the potential expansiveness of the DMCA. Then there is the comparison with the Reimerdes case. How interesting that the First Amendment and concerns about free expression have comparatively little bite when applied to the DMCA, but antitrust and concerns about competition require that we curtail it. After all, the heart of Mr. Johansen’s argument was that he had to write the DeCSS program in order to play his own DVDs on his own computer—to get access to his own DVDs, just as the purchaser of a replacement garage door control is getting access to the program that operates his own garage door. Indeed, Mr. Johansen’s criticism of CSS was that it allowed the movie companies, “through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work.” Mr. Corley echoed those claims. + +Of course, the situations are not identical. The key limitation in Skylink is that the court saw no threat of “foul use.” The Reimerdes court could see little else. On the other hand, the rulings are not easily reconciled. The Skylink court cannot imagine that Congress would want to give the copyright holder a new “property” right to prevent access unconnected to any underlying copyright violation. + +_1 As we have seen, Congress chose to create new causes of action for circumvention and for trafficking in circumvention devices. Congress did not choose to create new property rights. . . . Were we to interpret Congress’s words in a way that eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized. + +Yet, arguably, that is exactly what the Reimerdes decision does, precisely because it focuses on enabling access alone, not access for the purpose of violating one of the rights of the copyright holder. The Reimerdes court saw a violation of the law just in cutting the wire or making a wire cutter. The Skylink court focused on whether the person cutting the wire was going to trespass once the cutting was done. In effect, the two courts disagree on which of the options offered to the legislature in the Farmers’ Tale was actually enacted by Congress. Which court is correct? The Skylink decision strikes me as sensible. It also makes the statute constitutionally much more defensible—something that the Skylink court does not consider. But in the process, it has to rewrite the DMCA substantially. One should not presume that it will be this interpretation that will triumph. + +2~ Summing Up: Exaggerations, Half-Truths, and Bipolar Disorders in Technology Policy + +Let me return to the question with which I began the chapter. For many critics of contemporary intellectual property law, the DMCA is the very embodiment of all that is wrong. (I still cherish a friend’s account of British protesters outside the American Embassy in London singing “D-M-C-A” to the tune of the Village People’s “YMCA” and holding up signs calling for the law’s repeal—to the great confusion of the diplomatic personnel.) The critics conjure up a digital apocalypse—a world of perfect control achieved through legally backed digital fences, in which both speech and competition suffer, and where citizens lose privacy, the privilege of fair use, and the right to criticize popular culture rather than simply consume it. In their view, the legal disaster is only exacerbated by bumbling judges who do not understand the technology and who are easily fooled by the doom-laden rhetoric of the content companies. The DMCA’s supporters, on the other hand, think criticisms of the DMCA are overblown, that the dark tales of digital control are either paranoid delusions or tendentious exaggerations, and that far from being excessive, the DMCA’s provisions are not sufficient to control an epidemic of illicit copying. More draconian intervention is needed. As for fair use, as I pointed out before, many of the DMCA’s supporters do not think fair use is that important economically or culturally speaking. At best it is a “loophole” that copyright owners should have the right to close; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state. + +Who is right? Obviously, I disagree profoundly with the DMCA’s supporters. I wrote this book partly to explain—using Jefferson and Macaulay and the Sony case—what was wrong with their logic. It would be both convenient and predictable for me to claim that the DMCA is the intellectual property incarnation of the Antichrist. But it would not be true. In fact, I would not even put the DMCA in the top three of bad intellectual property initiatives worldwide. And many of the fears conjured up about it are indeed overblown. + +Of course, the critics have a point. The DMCA is a very badly drafted law. As I have tried to show here, its key provisions were probably unnecessary and are, in my view, unconstitutional. If coupled with a number of other legal “innovations” favored by the content industry, the DMCA could play a very destructive role. In general, in fact, the Farmers’ Tale is fairly accurate in describing both the origins of and the threats posed by the DMCA. Yet the single largest of those threats—the idea that the DMCA could be used to fence off large portions of the public domain and to make the fair use provisions of the Copyright Act essentially irrelevant—is still largely a threat rather than a reality. In some cases, fair use rights are curtailed. But for most citizens and for the majority of media, the DMCA has had relatively little effect. Digital rights management (DRM) certainly exists; indeed it is all around us. You can see that every time you try to play a DVD bought in another part of the world, open an Adobe eBook, or copy a song you have downloaded from iTunes. But so far, the world of legally backed digital rights management has not brought about the worst of the dystopian consequences that some people, including me, feared might result. + +In many cases, citizens simply reject digital rights management. They will not buy products that use it. Attempts to introduce it into music CDs, for example, have been a resounding failure. In other cases, DRM has not been used in ways that the critics feared. There are genuine scandals, of course—cryptography research has been chilled, the DMCA has been turned to anticompetitive ends, and so on. It is also troubling to see federal judges issuing injunctions not only against banned material but also against those who link to the banned material. Somehow the blithe reassurance that this is consistent with the First Amendment fails to comfort one. But many of the evils prophesied for the DMCA remain as just that: prophecies. + +There are also entries on the positive side of the ledger. The “safe-harbors” that the DMCA gave Internet service providers and search services have been a vital and positive force in the development of the Internet. It may even be true that in some cases, such as iTunes, the DMCA did what its backers claimed it would—encourage new provision of digital content by reassuring the record companies that they could put their music online surrounded by legally backed digital rights management. (Notably, however, the trend is now going the other way. Companies are coming to realize that many consumers prefer, and will pay more for, unprotected MP3 files.) + +Of course, depending on your view of the music industry, that might seem like a mixed blessing. One might also wonder if the same consumer benefits might have been produced with a much less restrictive law. But with the exception of a few important areas—such as cryptography research, where its effects are reported to be severe—I would have to say that the criticisms focus too much on the DMCA, to the exclusion of the rest of the intellectual property landscape. Yes, the DMCA offers enormous potential for abuse, particularly in conjunction with some other developments in intellectual property that I will discuss later, but much of the abuse has not yet happened. Yet even if it never did happen, the DMCA has important lessons to teach us. + +In this section I have tried to show how legal rules—particularly intellectual property rules—define the boundaries of legitimate competition. We used to assume that this was principally the function of patent and trademark law, less so of copyright. Of course, copyright would affect competition in publishing and in the TV and movie industries, but it hardly seemed central to competition policy in general. But once courts and legislatures accepted that software is copyrightable, that assessment changed. The levers and cogs of the machines of the modern economy are forged out of ones and zeros instead of steel and brass. In that situation, copyright is central to the competition policy of a high-tech economy. + +As the Apple case shows, our moral intuitions about competition are going to be cloudier in the world of digital content and cyberspace. The same is true of the law. Even in the material world it can be hard to draw the line between the legitimate and ruthless pursuit of commercial advantage and various forms of unfair competition, antitrust violations, and so on. But in the immaterial world, the boundaries are even harder to draw. Is this the digital equivalent of trespass or legitimate passage on a public road that runs through your property? As I pointed out earlier, the constant analogies to physical property are likely to conceal as much as they reveal. Is this virtuous competitive imitation or illicit copying? We have strong, and by no means coherent, moral and legal intuitions about the answers to such questions. And our legal structure often gives us the raw material to make a very good case for both sides of the argument. + +Into this already troubled situation, with a set of rules designed for original expression in novels and poems being applied to machines made of computer code, we add the DMCA and its new rights of uncertain extent. Copyright had a well-developed set of exceptions to deal with anticompetitive behavior. Where the existing exceptions did not function, courts tended to turn to fair use as the universal method for patching the system up—the duct tape of the copyright system. Without an evolving idea of fair use, copyright would overshoot its bounds as it was applied to new technologies and new economic conditions. Indeed that was the point of the Sony Axiom. The DMCA threw this system into disarray, into a war of competing metaphors. + +The Skylink court sees monopolists being handed carte blanche to abolish the restraints on their monopolies. Competition policy demands that we construe the DMCA narrowly. The Reimerdes court sees a virus masquerading as speech, a digital pandemic that must be stopped at all costs by a draconian program of electronic public health. Each proceeds to construe the statute around the reality they have created. It is by no means certain which metaphor will win the day, still less which resolution will triumph in other countries that have passed versions of the DMCA. International attitudes toward speech, competition, and the necessary exceptions in a copyright system vary widely. Yet backed by the story of the Internet Threat, the content companies are already saying that we need to go further both nationally and internationally—introducing more technology mandates, requiring computers to have hardware that will only play approved copyrighted versions, allowing content companies to hack into private computers in search of material they think is theirs, and so on. Remember the suggestion from the beginning of the chapter, that all cars be assumed to be getaway vehicles for the felonious filchers of vegetables, and thus that they should be fitted with radio beacons, have the size of their cargo space reduced, and so on? The Farmers’ Tale continues to evolve. + +2~ Chapter 5: Further Reading + +This chapter focuses primarily on the Digital Millennium Copyright Act (“DMCA”), one of the most controversial recent pieces of intellectual property legislation and the subject of extensive scholarship and commentary. + +3~ The DMCA and DRM + +Once again Jessica Litman’s Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001) is an indispensable introduction. David Nimmer offered one of the early, and prescient, analyses of the conceptual problems in the statute. David Nimmer, “A Riff on Fair Use in the Digital Millennium Copyright Act,” University of Pennsylvania Law Review 148 (2000): 673–742. His anthology, Copyright: Sacred Text, Technology, and the DMCA (The Hague: Kluwer Law International, 2003), is also worthy reading for those who wish to pursue the legal issues further. Tarleton Gillespie’s book Wired Shut: Copyright and the Shape of Digital Culture (Cambridge, Mass.: MIT Press, 2007), is an accessible but thorough introduction to the economic, political, and cultural consequences of so-called “digital rights management” or DRM. Legal scholars have been assiduous in pointing out the problems that legally backed DRM brings to science, culture, policy, and economic competition. Pamela Samuelson’s “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised,” Berkeley Technology Law Journal 14 (1999): 519–566, is an early critique that proved to be particularly accurate in its predictions. Jerome Reichman, Graeme Dinwoodie, and Pamela Samuelson, “A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works,” Berkeley Technology Law Journal 22 (2007): 981–1060, provides a fascinating recent proposal for a method to solve some of those problems. Dan Burk’s “Anticircumvention Misuse,” UCLA Law Review 50 (2003): 1095–1140, offers a similar piece of conceptual judo, looking at the way in which copyright’s traditional concerns with anticompetitive and predatory misuse of intellectual property rights could be turned on the new legally backed digital fences of cyberspace. Julie Cohen sets the debate in the wider perspective of political theory in a way that has been influential on my own thinking. In “Lochner in Cyberspace: The New Economic Orthodoxy of ‘Rights Management,’ ” Michigan Law Review 97 (1998): 462–563, and her subsequent work, she describes the ways in which digital rights management presents fascinating echoes of the ideology of socially untrammeled property rights that dominated the first twenty years of the twentieth century in the United States and was eventually countered with the ideals of the New Deal. Finally, Jane Ginsburg, “Copyright and Control over New Technologies of Dissemination,” Columbia Law Review 101 (2001): 1613–1647, provides a more positive account, arguing that on balance—given the dangers of illicit digital copying—the DMCA’s benefits outweigh its costs. + +3~ The DMCA and Freedom of Expression + +Those who are interested in the tensions between copyright law and free expression are the beneficiaries of an explosion of scholarship. I cannot begin to cite it all here. Melville Nimmer’s article from 1970, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?” UCLA Law Review 17 (1970): 1180–1204, is a required starting place though its full impact was not to be felt for some time. Lawrence Lessig, “Copyright’s First Amendment,” UCLA Law Review 48 (2001): 1057–1074, provides a lovely reflection of the impact of Nimmer’s arguments more than 30 years on. Neil Netanel’s book Copyright’s Paradox (Oxford: Oxford University Press, 2008), is the single most comprehensive work in the field and a fascinating read. Netanel’s arguments, and those of Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354–446, and Jed Rubenfeld, “The Freedom of Imagination: Copyright’s Constitutionality,” Yale Law Journal 112 (2002): 1–60, have been influential on my own thinking in many areas. Bernt Hugenholtz has demonstrated that the concern about a tension between copyright law and freedom of expression is by no means limited to the United States. P. Bernt Hugenholtz, “Copyright and Freedom of Expression in Europe” in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Information Society, ed. Rochelle Dreyfuss, Diane Zimmerman, and Harry First (Oxford: Oxford University Press, 2001), at 341. (This entire volume is superb, it should be noted.) L. Ray Patterson—an inspiration to the current generation of copyright scholars—summed up the intellectual current well when he compared the DMCA to the methods of censorship imposed by the seventeenth century Licensing Act. L. Ray Patterson, “The DMCA: A Modern Version of the Licensing Act of 1662,” Journal of Intellectual Property Law 10 (2002): 33–58. + +Last, but by no means least, is the new book by my brilliant colleagues, David Lange and H. Jefferson Powell: No Law: Intellectual Property in the Image of an Absolute First Amendment (Stanford, Calif.: Stanford University Press, forthcoming 2008). No Law offers a fascinating thought experiment: what would a First Amendment jurisprudence look like that took seriously the premise that “no law” is allowed to restrict ‘the freedom of speech’ protected by the First Amendment and then turned its eyes on copyright? It is the answer to the question “and what exactly does ‘the freedom of speech’ permit?” that is most intriguing. Interestingly, though Lange and Powell find many copyright doctrines problematic, they are inclined to view the DMCA more charitably. I disagree for the reasons given in this chapter. + +1~ Chapter 6: I Got a Mashup + +So far, I have talked about the root ideas of intellectual property. I have talked about its history, about the way it influences and is influenced by technology. I have talked about its effects on free speech and on competition. Until now, however, I have not described the way that it actually affects culture. This chapter aims to rectify the omission, looking at the way copyright law handles one specific form of cultural creation—music. It turns out that some of the problems identified in Chapters 4 and 5 are not simply the result of a mismatch between old law and new technology, or the difficulties posed in applying copyright to software, to machines made of words. The same issues appear at the heart of a much older cultural tradition. + +This is the story of a song and of that song’s history. But it is also a story about property and race and art, about the way copyright law has shaped, encouraged, and prohibited music over the last hundred years, about the lines it draws, the boundaries it sets, and the art it forbids. + +Music is hard for copyright law to handle. If one had to represent the image of creativity around which copyright law and patent law, respectively, are built, patent law’s model of creativity would be a pyramid and copyright law’s a fountain, or even an explosion. + +In patent law, the assumption is that technological development converges. Two engineers from two different countries tend to produce similar ways of catching mice or harnessing the power of steam. There are a limited number of good ways of accomplishing a technical task. In addition, technological progress is assumed to be incremental. Each development builds on the ones behind it. Based on this image, patent law makes a series of decisions about what gets covered by property rights, for how long, how to handle “subsequent improvements,” and so on. Patent rights last for a short time, not only to lower costs to consumers, but because we want to build on the technology inventors have created as soon as possible, without getting their permission. Even during the patent term, subsequent “improvers” get their own rights and can bargain with the original patent holder to share the profits. + +Copyright’s assumptions are different. Copyright began with texts, with creative expression. Here the assumption is (generally) that there are infinite possibilities, that two writers will not converge on the same words, and that the next generation of storytellers does not need to take the actual “stuff” that copyright covers in order to make the next play or novel. (It may be because of this image that so few policy makers seem to worry that copyright now lasts for a very long time.) Subsequent “improvements” of copyrighted material are called derivative works, and without the rights holder’s permission, they are illegal. Again, the assumption seems to be that you can just write your own book. Do not claim you need to build on mine. + +Of course, each of these pictures is a caricature. The reality is more complex. Copyright can make this assumption more easily because it does not cover ideas or facts—just their expression. “Boy meets girl, falls in love, girl dies” is not supposed to be owned. The novel Love Story is. It is assumed that I do not need Erich Segal’s copyrighted expression to write my own love story. Even if literary creativity does converge around standard genres, plots, and archetypes, it is assumed that those are in the public domain, leaving future creators free to build their own work without using material that is subject to copyright. We could debate the truth of that matter for literature: the expansion of copyright’s ambit to cover plotlines and characters makes it more questionable. Certainly many recognized forms of creativity, such as the pastiche, the collage, the literary biography, and the parody need extensive access to prior copyrighted work. But regardless of how well we think the image of individual creativity fits literature, it fits very poorly in music where so much creativity is recognizably more collective and additive, and where much of the raw material used by subsequent creators is potentially covered by copyright. + +So how does the accretive process of musical creativity fare in the modern law and culture of copyright? How would the great musical traditions of the twentieth century—jazz, soul, blues, rock—have developed under today’s copyright regime? Would they have developed at all? How does the law apply to the new musicians, remixers, and samplers who offer their work on the Internet? Do the lines it draws fit with our ethics, our traditions of free speech and commentary, our aesthetic judgments? It would take a shelf of books to answer such questions definitively. In this chapter, all I can do is suggest some possibilities—using the history of a single song as my case study. + +% --- + +On August 29th, 2005, a hurricane made landfall in Louisiana. The forecasters called it “Hurricane Katrina,” quickly shortened to “Katrina” as its story took over the news. The New Orleans levees failed. Soon the United States and then most of the world was watching pictures of a flooded New Orleans, seeing pleading citizens—mainly African-American—and a Keystone Cops response by the Federal Emergency Management Agency. The stories from New Orleans became more and more frightening. There were tales not only of natural disaster—drownings, elderly patients trapped in hospitals—but of a collapse of civilization: looting, murder and rape, stores being broken into with impunity, rescue helicopters fired upon, women and children sexually assaulted in the convention center where many of the refugees huddled. Later, it would turn out that many, perhaps most, of these reports were untrue, but one would not have guessed that from the news coverage. + +The television played certain images over and over again. People—again, mainly African-Americans—were portrayed breaking into stores, pleading from rooftops, or later, when help still had not arrived, angrily gesturing and shouting obscenities at the camera. + +As the disaster unfolded in slow motion, celebrities began appearing in televised appeals to raise money for those who had been affected by the storm. Kanye West, the hip hop musician, was one of them. Appearing on NBC on September 2, with the comedian Mike Myers, West started out seeming quietly upset. Finally, he exploded. + +_1 I hate the way they portray us in the media. You see a black family, it says, “They’re looting.” You see a white family, it says, “They’re looking for food.” And, you know, it’s been five days [waiting for federal help] because most of the people are black. . . . So anybody out there that wants to do anything that we can help—with the way America is set up to help the poor, the black people, the less well-off, as slow as possible. I mean, the Red Cross is doing everything they can. We already realize a lot of people that could help are at war right now, fighting another way—and they’ve given them permission to go down and shoot us! + +Myers, who, according to the Washington Post, “looked like a guy who stopped on the tarmac to tie his shoe and got hit in the back with the 8:30 to LaGuardia,” filled in with some comments about the possible effect of the storm on the willingness of Louisiana citizens to live in the area in the future. Then he turned back to West, who uttered the line that came to epitomize Katrina for many people around the world, and to infuriate a large number of others. “George Bush doesn’t care about black people!” Myers, the Post wrote, “now look[ed] like the 8:30 to LaGuardia turned around and caught him square between the eyes.”~{Lisa de Moraes, “Kanye West’s Torrent of Criticism, Live on NBC,” Washington Post (September 3, 2005), C1, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/09/03/AR2005090300165.html. }~ In truth, he did appear even more stunned than before, something I would not have thought possible. + +In Houston, Micah Nickerson and Damien Randle were volunteering to help New Orleans evacuees at the Astrodome and Houston Convention Center during the weekend of September 3. They, too, were incensed both by the slowness of the federal response to the disaster and by the portrayal of the evacuees in the media. But Mr. Nickerson and Mr. Randle were not just volunteers, they were also a hip-hop duo called “The Legendary K.O.” What better way to express their outrage than through their art? An article in the New York Times described their response. + +_1 “When they got to Houston, people were just seeing for the first time how they were portrayed in the media,” said Damien Randle, 31, a financial adviser and one half of the Legendary K.O. “It was so upsetting for them to be up on a roof for two days, with their kids in soiled diapers, and then see themselves portrayed as looters.” In response, Mr. Randle and his partner, Micah Nickerson, wrote a rap based on the stories of the people they were helping. On Sept. 6, Mr. Nickerson sent Mr. Randle an instant message containing a music file and one verse, recorded on his home computer. Mr. Randle recorded an additional verse and sent it back, and 15 minutes later it was up on their Web site: www.k-otix.com.~{John Leland, “Art Born of Outrage in the Internet Age,” New York Times (September 25, 2005), D3.}~ + +The song was called “George Bush Doesn’t Care About Black People” (also referred to as “George Bush Doesn’t Like Black People”). Appropriately, given that Mr. West was the one to come up with the phrase, the song was built around Mr. West’s “Gold Digger.” Much of the melody was sampled directly from the recording of that song. Yet the words were very different. Where “Gold Digger” is about a predatory, sensual, and materialist woman who “take[s] my money when I’m in need” and is a “triflin’ friend indeed,” The Legendary K.O.’s song is a lyrical and profane condemnation of the response to Katrina by both the government and the media. Here is a sample: + +poem{ + +Five days in this motherf__ attic +Can’t use the cellphone I keep getting static +Dying ’cause they lying instead of telling us the truth +Other day the helicopters got my neighbors off the roof +Screwed ’cause they say they coming back for us too +That was three days ago, I don’t see no rescue +See a man’s gotta do what a man’s gotta do +Since God made the path that I’m trying to walk through +Swam to the store, tryin’ to look for food +Corner store’s kinda flooded so I broke my way through +I got what I could but before I got through +News say the police shot a black man trying to loot +(Who!?) Don’t like black people +George Bush don’t like black people +George Bush don’t like black people + +}poem + +This chapter is the story of that song. “George Bush Doesn’t Care About Black People” is the end (for the moment) of a line of musical borrowing. That borrowing extends far beyond Kanye West’s song “Gold Digger.” “Gold Digger” is memorable largely because it in turn borrows from an even older song, a very famous one written half a century before and hailed by many as the birth of soul music. It is in the origins of that song that we will start the trail. + +2~ I Got A Woman + +In 1955, Ray Charles Robinson, better known as Ray Charles, released a song called “I Got a Woman.” It was a defining moment in Charles’s musical development. Early in his career he had unashamedly modeled himself on Nat King Cole. + +_1 I knew back then that Nat Cole was bigger than ever. Whites could relate to him because he dealt with material they understood, and he did so with great feeling. Funny thing, but during all these years I was imitating Nat Cole, I never thought twice about it, never felt bad about copying the cat’s licks. To me it was practically a science. I worked at it, I enjoyed it, I was proud of it, and I loved doing it. He was a guy everyone admired, and it just made sense to me, musical and commercial sense, to study his technique. It was something like when a young lawyer—just out of school—respects an older lawyer. He tries to get inside his mind, he studies to see how he writes up all his cases, and he’s going to sound a whole lot like the older man—at least till he figures out how to get his own shit together. Today I hear some singers who I think sound like me. Joe Cocker, for instance. Man, I know that cat must sleep with my records. But I don’t mind. I’m flattered; I understand. After all, I did the same thing.~{Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story (Cambridge, Mass.: Da Capo Press, 1978), 86.}~ + +In the early 50s Charles decided that he needed to move away from Cole’s style and find his own sound, “sink, swim or die.” But as with any musician, “his own sound” was the product of a number of musical traditions—blues and gospel particularly. It is out of those traditions that “I Got a Woman” emerged; indeed it is that combination that causes it to be identified as one of the birthplaces of soul music. + +According to the overwhelming majority of sources, “I Got a Woman” stems from a fairly overt piece of musical borrowing—Charles reworded the hymn “Jesus Is All the World to Me”—sometimes referred to as “My Jesus Is All the World to Me.” + +_1 Musically, soul denotes styles performed by and for black audiences according to past musical practices reinterpreted and redefined. During its development, three performers played significant roles in shaping its sound, messages, and performance practice: Ray Charles, James Brown, and Aretha Franklin. If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded “My Jesus Is All the World to Me,” changing its text to “I Got A Woman.”~{Robert W. Stephens, “Soul: A Historical Reconstruction of Continuity and Change in Black Popular Music,” The Black Perspective in Music 12, no. 1 (Spring 1984): 32.}~ + +That story is repeated in the biography on Charles’s Web site. “Charles reworded the gospel tune ‘Jesus Is All the World to Me’ adding deep church inflections to the secular rhythms of the nightclubs, and the world was never the same.”~{Forever Ray, available at http://www.raycharles.com/the_man_biography.html. }~ Michael Lydon, Charles’s most impressive biographer, simply reports that “Jesus Is All the World to Me” is described as the song’s origin in another published source,~{Michael Lydon, Ray Charles (New York: Routledge, 2004), 419: “Arnold Shaw, in The Rockin’ 50’s says that ‘I Got a Woman’ is based on Jesus is All the World to Me. Because Renald Richard left Ray’s band before the song was recorded, he was not at first properly credited: some record labels list [Ray Charles] alone as the songwriter. Richard, however, straightened that out with Atlantic, and he has for many years earned a substantial income from his royalties.”}~ and this origin is cited repeatedly elsewhere in books, newspaper articles, and online,~{See Stephens, “Soul,” 32. The standard biographical literature also repeats the same story:
In 1954 an historic recording session with Atlantic records fused gospel with rhythm-and-blues and established Charles’ “sweet new style” in American music. One number recorded at that session was destined to become his first great success. Secularizing the gospel hymn “My Jesus Is All the World to Me,” Charles employed the 8- and 16-measure forms of gospel music, in conjunction with the 12-measure form of standard blues. Charles contended that his invention of soul music resulted from the heightening of the intensity of the emotion expressed by jazz through the charging of feeling in the unbridled way of gospel.
“Ray Charles,” Encyclopedia of World Biography, 2nd ed., vol. 3 (Detroit, Mich.: Gale Research, 1998), 469. Popular accounts offer the same story:
This young, blind, black, gravelly-voiced singer brought together the most engaging aspects of black music into one form and began the process of synthesis that led to soul and, ultimately, funk a decade later. He would turn around gospel standards like “My Jesus Is All the World to Me,” recreating it as “I Got a Woman[.]”
Ricky Vincent, Funk: The Music, The People, and the Rhythm of the One (New York: St. Martin’s Griffin, 1996), 121. See also Joel Hirschhorn, The Complete Idiot’s Guide to Songwriting (New York: Alpha Books, 2004), 108: “I Got a Woman was Ray’s rewrite of ‘My Jesus Is All the World to Me.’ ”
Charles himself was more equivocal about the origins of the song:
So I was lucky. Lucky to have my own band at this point in my career. Lucky to be able to construct my musical building to my exact specifications. And lucky in another way: While I was stomping around New Orleans, I had met a trumpeter named Renolds [sic] Richard who by thus time was in my band. One day he brought me some words to a song. I dressed them up a little and put them to music. The tune was called “I Got a Woman,” and it was another of those spirituals which I refashioned in my own way. I Got a Woman was my first real smash, much bigger than [“]Baby Let Me Hold Your Hand[.]” This spiritual-and-blues combination of mine was starting to hit.
Charles and Ritz, Brother Ray, 150.}~ though the most detailed accounts also mention Renald Richard, Charles’s trumpeter, who is credited with co-writing the song.~{See Lydon, Ray Charles, 419.}~ + +To secular ears, “Jesus Is All the World to Me” is a plodding piece of music with a mechanical, up-and-down melodic structure. It conjures up a bored (and white) church audience, trudging through the verses, a semitone flat, while thinking about Sunday lunch rather than salvation. It is about as far removed as one could be from the syncopated beat and amorous subject matter of “I Got a Woman.” The hymn was the product of Will Lamartine Thompson—a severe-looking fellow with a faint resemblance to an elderly Doc Holliday—who died in 1909 and is buried in the same place he was born, East Liverpool, Ohio. But the words have an earnestness to them that gives life to the otherwise uninspired verse. + +poem{ + +Jesus is all the world to me, my life, my joy, my all; +He is my strength from day to day, without Him I would fall. +When I am sad, to Him I go, no other one can cheer me so; +When I am sad, He makes me glad, He’s my Friend. + +}poem + +Reading those words, one can understand the sincerity that made Mr. Thompson spurn commercial publishers for his devotional music, instead founding his own publishing house (also in East Liverpool) to make sure that his hymns reached the people. I can quote as much of the song as I want without worrying about legal consequences because the copyright on Mr. Thompson’s lyrics has expired. So has the copyright over the music. The song was published in 1904. Copyright had only been extended to musical compositions in 1881. Like all copyrights back then, copyright over music lasted for only twenty-eight years, with a possible extension for another fourteen. If Ray Charles did indeed reword it fifty years later, he was doing nothing illegal. It had been in the public domain for at least eight years, and probably for twenty. Now maybe Charles’s genius was to hear in this hymn, or in a syncopated gospel version of this hymn, the possibility of a fusion of traditions which would itself become a new tradition—soul. Or perhaps his genius was in knowing a good idea—Richard’s—when he heard it, and turning that idea into the beginnings of its own musical genre. + +Soul is a fusion of gospel on the one hand and rhythm and blues on the other. From gospel, soul takes the call-and-response pattern of preacher and congregation and the wailing vocals of someone “testifying” to their faith. From rhythm and blues it takes the choice of instruments, some of the upbeat tempo, and the distinctly worldly and secular attitude to the (inevitable) troubles of life. Musicologists delight in parsing the patterns of influence further; R&B itself had roots in “jump music” and the vocal style of the “blues shouters” who performed with the big bands. It also has links to jazz. Gospel reaches back to spirituals and so on. + +As with all music, those musical traditions can be traced back or forward in time, the net of influence and borrowing widening as one goes in either direction. In each, one can point to distinctive musical motifs—the chords of the twelve-bar blues, or the flattened fifth in bebop. But musical traditions are also defined by performance styles and characteristic sounds: the warm guitar that came out of the valve amplifiers of early funk, the thrashing (and poorly miked) drums of ’80s punk, or the tinny piano of honky-tonk. Finally, styles are often built around “standards”—classic songs of the genre to which an almost obligatory reference is made. My colleague, the talented composer Anthony Kelley, uses Henry Louis Gates’s term “signifyin’ ” to describe the process of showing you are embedded in your musical tradition by referring back to its classics in your playing. In jazz, for example, one demonstrates one’s rootedness in the tradition by quoting a standard, but also one’s virtuosity in being able to trim it into a particular eight-bar solo, beginning and ending on the right note for the current moment in the chord progression. “I Got Rhythm” and “Round Midnight” are such songs for jazz. (The chord changes of “I Got Rhythm” are so standard, they are referred to as “the rhythm changes”—a standard basis for improvisation.) And to stretch the connections further, as Kelley points out, the haunting introduction to “Round Midnight” is itself remarkably similar to Sibelius’s Fifth Symphony. + +Through all these layers of musical borrowing and reference, at least in the twentieth century in the United States, runs the seam of race. When white musicians “borrowed” from soul to make “blue-eyed soul,” when Elvis took songs and styles from rhythm and blues and turned them into rockabilly, a process of racial cleansing went on. Styles were adapted but were cleansed of those elements thought inappropriate for a larger white audience. Generally, this involved cutting some of the rawer sensuality, removing racially specific verbal and musical references, and, for much of the century, cutting the African-American artists out of the profits in the process. + +There is another irony here. Styles formed by patterns of gleeful borrowing, formed as part of a musical commons—the blues of the Mississippi Delta, for example—were eventually commercialized and “frozen” into a particular form by white artists. Sometimes those styles were covered with intellectual property rights which denied the ability of the original community to “borrow back.” In the last thirty or forty years of the century, African-American artists got into the picture too, understandably embracing with considerable zeal the commercial opportunities and property rights that had previously been denied to them. But aside from the issue of racial injustice, one has to consider the question of sustainability. + +In other work, I have tried to show how a vision of intellectual property rights built around a notion of the romantic author can sometimes operate as a one-way valve vis-à-vis traditional and collective creative work.~{James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996).}~ There is a danger that copyright will treat collectively created musical traditions as unowned raw material, but will then prevent the commercialized versions of those traditions—now associated with an individual artist—from continuing to act as the basis for the next cycle of musical adaptation and development. One wonders whether jazz, blues, R&B, gospel, and soul would even have been possible as musical styles if, from their inception, they had been covered by the strong property rights we apply today. That is a question I want to return to at the end of this chapter. + +Musical styles change over time and so do their techniques of appropriation. Sometimes musical generations find their successors are engaging in different types of borrowing than they themselves engaged in. They do not always find it congenial. It is striking how often musicians condemn a younger generation’s practice of musical appropriation as theft, while viewing their own musical development and indebtedness as benign and organic. James Brown attacked the use of his guitar licks or the drum patterns from his songs by hip-hop samplers, for example, but celebrated the process of borrowing from gospel standards and from rhythm and blues that created the “Hardest Working Man in Show Business”—both the song and the musical persona. To be sure, there are differences between the two practices. Samplers take a three-second segment off the actual recording of “Funky Drummer,” manipulate it, and turn it into a repeating rhythm loop for a hip-hop song. This is a different kind of borrowing than the adaptation of a chord pattern from a gospel standard to make an R&B hit. But which way does the difference cut as a matter of ethics, aesthetics, or law? + +Charles himself came in for considerable criticism for his fusion of gospel intonations and melodic structures with the nightclub sound of rhythm and blues, but not because it was viewed as piracy. It was viewed as sacrilegious. + +_1 Charles totally removed himself from the polite music he had made in the past. There was an unrestrained exuberance to the new Ray Charles, a fierce earthiness that, while it would not have been unfamiliar to any follower of gospel music, was almost revolutionary in the world of pop. Big Bill Broonzy was outraged: “He’s crying, sanctified. He’s mixing the blues with the spirituals. He should be singing in a church.”~{James Henke, Holly George-Warren, Anthony Decurtis, and Jim Miller, The Rolling Stone Illustrated History of Rock and Roll: The Definitive History of the Most Important Artists and Their Music (New York: Random House, 1992), 130.}~ + +Charles disagreed. “You can’t run away from yourself. . . . What you are inside is what you are inside. I was raised in the church and was around blues and would hear all these musicians on the jukeboxes and then I would go to revival meetings on Sunday morning. So I would get both sides of music. A lot of people at the time thought it was sacrilegious but all I was doing was singing the way I felt.”~{Great American Country, “Ray Charles Biography,” available at http://www.gactv.com/gac/ar_artists_a-z/article/0,,GAC_26071_4888297,00.html. }~ Why the charge of sacrilege? Because beyond the breach of stylistic barriers, the relationships Charles described did not seem to belong in church. + +“I Got a Woman” tells of a woman, “way over town,” who is good to the singer—very good, in fact. She gives him money when he is in need, is a “kind of friend indeed,” even saves her “early morning loving” just for him (and it is tender loving at that). In the third verse we learn she does not grumble, fuss, or run in the streets, “knows a woman’s place is right there now in the home,” and in general is a paragon of femininity. Gender roles aside, it is a fabulous song, from the elongated “We-e-ell . . .” in Charles’s distinctive tones, to the momentary hesitation that heightens the tension, all the way through the driving beat of the main verses and the sense that a gospel choir would have fit right in on the choruses, testifying ecstatically to the virtues of Charles’s lady friend. Charles liked women—a lot of women, according to his biographers—and a lot of women liked him right back. That feeling comes through very clearly from this song. + +I would like to quote the song lyrics for you, just as I did the words of the hymn, but that requires a little more thought. Charles’s song was released in 1955. By that time, the copyright term for a musical composition was twenty-eight years, renewable for another twenty-eight if the author wished. (Later, the twenty-eight-year second term would be increased to forty-seven years. Still later, the copyright term would be extended to life plus seventy years, or ninety-five years for a “work for hire.” Sound recordings themselves would not be protected by federal law until the early 1970s.) Anyone who wrote or distributed a song under the “28+28” system was, in effect, saying “this is a long enough protection for me,” enough incentive to create. Thus, we could have assumed that “I Got a Woman” would enter the public domain in either 1983 or, if renewed, 2011. Unfortunately for us, and for a latter-day Ray Charles, the copyright term has been extended several times since then, and each time it was also extended retrospectively. Artists, musicians, novelists, and filmmakers who had created their works on the understanding that they had twenty-eight or fifty-six or seventy-five years of protection now have considerably more. This was the point raised in Chapter 1. Most of the culture of the twentieth century, produced under a perfectly well-functioning system with much shorter copyright terms, is still locked up and will be for many years to come. + +In the case of “I Got a Woman,” it is now about fifty years since the song’s release—the same length of time as between Thompson’s hymn and Charles’s alleged “rewording.” If the words and music were properly copyrighted at the time of its publication, and renewed when appropriate, the copyright still has forty-five years to run. No one will be able to “reword” “I Got a Woman” and use it to found a new genre, or take substantial portions of its melody, until the year 2050. The freedoms Ray Charles says he used to create his song are denied to his successors until nearly a century after the song’s release. (As we will see in a moment, this put certain constraints on Kanye West.) + +Would it truly be a violation of copyright for me to quote the middle stanza in a nonfiction book on copyright policy? Not at all. It is a classic “fair use.” In a moment I will do so. But it is something that the publisher may well fuss over, because copyright holders are extremely aggressive in asking for payments for the slightest little segment. Copyright holders in music and song lyrics are among the most aggressive of the lot. Year after year academics, critics, and historians pay fairly substantial fees (by our standards) to license tiny fragments of songs even though their incorporation is almost certainly fair use. Many of them do not know the law. Others do, but want to avoid the hassle, the threats, the nasty letters. It is simpler just to pay. + +Unfortunately, these individual actions have a collective impact. One of the factors used to consider whether something is a fair use is whether or not there is a market for this particular use of a work. If there is, it is less likely to be a fair use to quote or incorporate such a fragment. As several courts have pointed out, there is a powerful element of circularity here. You claim you have a right to stop me from doing x—quoting two lines of your three-verse song in an academic book, say. I say you have no such right and it is a fair use. You say it is not a fair use because it interferes with your market—the market for selling licenses for two-sentence fragments. But when do you have such a market? When you have a right to stop me quoting the two-sentence fragment unless I pay you. Do you have such a right? But that is exactly what we are trying to decide! Is it a fair use or not? The existence of the market depends on it not being a fair use for me to quote it without permission. To say “I would have a market if I could stop you doing it, so it cannot be a fair use, so I can stop you” is perfectly circular. + +How do we get out of the circle? Often the court will look to customs and patterns in the world outside. Do people accept this as a market? Do they traditionally pay such fees? Thus, if a lot of people choose to pay for quotes that actually should have been fair use, the “market” for short quotes will begin to emerge. That will, in turn, affect the boundaries of fair use for the worse. Slowly, fair use will constrict, will atrophy. The hypertrophied permissions culture starts as myth, but it can become reality. + +In any event, Ray Charles had no need of fair use to make “I Got a Woman” because the hymn his biography claims it is based on was in the public domain. But is that the real source? I can hear little resemblance. As I researched the origins of “I Got a Woman,” I found claims that there was a different source, a mysterious song by the Bailey Gospel Singers, or the Harold Bailey Gospel Singers, called “I’ve Got a Savior.”~{“His 1955 smash ‘I’ve Got a Woman,’ for example, was adapted from a gospel number he’d liked called ‘I’ve Got a Savior.’ ” Chip Deffaa, Blue Rhythms: Six Lives in Rhythm and Blues (Urbana: University of Illinois Press, 1996), 161.}~ The Columbia Records gospel catalogue even provided a catalogue number.~{Columbia Catalog Number CO45097, available at http://settlet.fateback.com/COL30000.htm. }~ There was such a song, or so it seemed. But there the research stalled. The exemplary librarians at Duke University Music Library could find no trace. Catalogues of published records showed nothing. Inquiries to various music librarian listservs also produced no answer. There was a man called Harold Bailey, who sang with a group of gospel singers, but though several Internet postings suggested he was connected to the song, his biography revealed he would have been only thirteen at the time. The Library of Congress did not have it. Eventually, Jordi Weinstock—a great research assistant who demonstrated willingness to pester anyone in the world who might conceivably have access to the recording—hit gold. The Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts had a copy—a 78 rpm vinyl record by the Bailey Gospel Singers with “Jesus Is the Searchlight” on the B-side. Our library was able to obtain a copy on interlibrary loan from the helpful curator, Don McCormick. + +It sounds like the same song. Not the same words, of course: the introduction is different and the Bailey Gospel Singers lack the boom-chicky-boom backing of Charles’s version, but the central melody is almost exactly the same. When the Bailey Gospel Singers sing “Keeps me up / Keeps me strong / Teach me right / When I doing wrong / Well, I’ve got a savior / Oh what a savior / yes I have,” the melody, and even the intonation, parallel Charles singing the equivalent lines: “She gimme money / when I’m in need / Yeah she’s a kind of / friend indeed / I’ve got a woman / way over town / who’s good to me.” + +True, some of the lyrical and rhythmic patterns of “I’ve Got a Savior” are older still. They come from a spiritual called “Ain’t That Good News,” dating from 1940, which rehearses all the things the singer will have in the Kingdom of Heaven—a harp, a robe, slippers (!), and, finally, a savior. The author of “I’ve Got a Savior” was, like all the artists discussed here, taking a great deal from a prior musical tradition. Nevertheless, Charles’s borrowing is particularly overt and direct. The term “rewording” is appropriate. So far as I can see, whether or not he also relied on a fifty-year-old hymn, Ray Charles appears to have taken both the melody and lyrical pattern of his most famous hit from a song that was made a mere three or four years earlier. + +Like many 78 rpm records, this one was sold without liner notes. The center of the record provides the only details. It gives the name of the track and the band and a single word under the song title, “Ward”—presumably the composer. “Ward” might be Clara Ward of the Ward Singers, a talented gospel singer and songwriter who became Aretha Franklin’s mentor and who had her own music publishing company. + +There is a particular reason to think that she might have written the song: Ray Charles clearly liked to adapt her music to secular ends. We know that he “reworked” Ward’s gospel classic “This Little Light of Mine” into “This Little Girl of Mine.” Ward reportedly was irritated by the practice. So far as we know, the copying of the music did not annoy her because she viewed it as theft, but because she viewed it as an offense against gospel music. + +_1 Charles is now starting to get criticism from some gospel music performers for secularizing gospel music and presenting it in usual R&B venues. Most adamant in her misgivings is Clara Ward who complains about “This Little Girl Of Mine” being a reworking of “This Little Light Of Mine” (which it is), as a slap against the gospel field.~{J. C. Marion, “Ray Charles: The Atlantic Years,” JammUpp 2 no. 32 (2004): 32, http://home.earthlink.net/~v1tiger/jammuppvol2.html. }~ + +This stage of Charles’s career is described, rightly, hy and sensual style that becomes his trademark—his own sound. That is true enough; there had been nothing quite like this before. Yet it was hardly original creation out of nothing. Both Charles himself and the musicological literature point out that “his own sound,” “his style,” is in reality a fusion of two prior genres—rhythm and blues and gospel. But looking at the actual songs that created soul as a genre shows us that the fusion goes far beyond merely a stylistic one. Charles makes some of his most famous songs by taking existing gospel classics and reworking or simply rewording them. “I’ve Got a Savior” becomes “I Got a Woman.” “This Little Light of Mine” becomes “This Little Girl of Mine.” + +The connection is striking: two very recent gospel songs, probably by the same author, from which Charles copies the melody, structure, pattern of verses, even most of the title—in each case substituting a beloved sensual woman for the beloved deity. Many others have noticed just how closely Charles based his songs on gospel tunes, although the prevalence of the story that “I Got a Woman” is derived from an early-twentieth-century hymn caused most to see only the second transposition, not the first.~{“If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded ‘My Jesus Is All the World to Me,’ changing its text to ‘I Got A Woman.’ The following year, he changed Clara Ward’s ‘This Little Light of Mine’ to ‘This Little Girl of Mine.’ ” Stephens, “Soul,” 32.}~ Borrowing from a fifty-year-old hymn and changing it substantially in the process seems a little different from the repeated process of “search and replace” musical collage that Charles performed on the contemporary works of Clara Ward. + +If I am right, Charles’s “merger” of gospel and blues relied on a very direct process of transposition. The transposition was not just of themes: passion for woman substituted for passion for God. That is a familiar aspect of soul.~{Robert Lashley, “Why Ray Charles Matters,” Blogcritics Magazine, December 17, 2005, http://blogcritics.org/archives/2005/12/17/032826.php:
But it was the staggering, nearly byzantine ambition that encompassed Charles’ musical mind which is the foundation for his art. You can hear it in his first imprint on the pop music world, 1955’s I Got A Woman. The shuffling big beat borrows from Louis Jordan’s big band fusion, the backbeat is 2/4 gospel. The arrangement is lucid, not quite jazz, not quite blues, definitely not rock and roll but something sophisticated altogether. The emotions are feral, but not quite the primitiveness of rock and roll. It is the sound of life, a place where there is an ever flowing river of cool. It, you might ask? Rhythm and Blues, Ray Charles’ invention.
A volcano bubbling under the surface, Ray spent the mid 50’s crafting timeless songs as if there were cars on an assembly[.] Start with the blasphemous fusion of Hallelujah I [L]ove Her So and This Little Girl of Mine, where Ray changes the words from loving god to loving a woman, yet, in the intensity of his performance, raises the question if he’s still loving the same thing.
The anonymous encyclopedists at Wikipedia agree:
Many of the most prominent soul artists, such as Aretha Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in the church and gospel music and brought with them much of the vocal styles of artists such as Clara Ward and Julius Cheeks. Secular songwriters often appropriated gospel songs, such as the Pilgrim Travelers’ song “I’ve Got A New Home,” which Ray Charles turned into “Lonely Avenue,” or “Stand By Me,” which Ben E. King and Lieber and Stoller adapted from a well-known gospel song, or Marvin Gaye’s “Can I Get A Witness,” which reworks traditional gospel catchphrases. In other cases secular musicians did the opposite, attaching phrases and titles from the gospel tradition to secular songs to create soul hits such as “Come See About Me” for the Supremes and “99½ Won’t Do” for Wilson Pickett.
“Urban Contemporary Gospel,” Wikipedia, http://en.wikipedia.org/wiki/urban_contemporary_gospel. }~ It is what allows it to draw so easily from gospel’s fieriness and yet coat the religion with a distinctly more worldly passion. Sex, sin, and syncopation—what more could one ask? But Charles’s genius was to take particular songs that had already proved themselves in the church and on the radio, and to grab large chunks of the melody and structure. He was not just copying themes, or merging genres, he was copying the melodies and words from recent songs. + +Was this mere musical plagiarism, then? Should we think less of Ray Charles’s genius because we find just how closely two of the canonical songs in the creation of soul were based on the work of his contemporaries? Hardly. “I Got a Woman” and “This Little Girl of Mine” are simply brilliant. Charles does in fact span the worlds of the nightclub at 3 a.m. on Sunday morning and the church later that day, of ecstatic testimony and good old-fashioned sexual infatuation. But the way he does so is a lot more like welding, or bricolage, than it is like designing out of nothing or creating anew while distantly tugged by mysterious musical forces called “themes” or “genres.” Charles takes bits that have been proven to work and combines them to make something new. When I tell engineers or software engineers this story, they nod. Of course that is how creation works. One does not reinvent the wheel, or the method of debugging, so why should one reinvent the hook, the riff, or the melody? And yet Charles’s creation does not have the degraded artistic quality that is associated with “mere” cut-and-paste or collage techniques. The combination is greater than the sum of its parts. If Charles’s songs do not fit our model of innovative artistic creativity, perhaps we need to revise the model—at least for music—rather than devaluing his work. + +When I began this study, it seemed to me that the greatest challenge to copyright law in dealing with music was preventing rights from “creeping,” expanding from coverage of a single song or melody to cover essential elements of genre, style, and theme. In effect, we needed to apply the Jefferson Warning to music, to defeat the constant tendency to confuse intellectual property with real property, and to reject the attempts to make the right holder’s control total. My assumption was that all we needed to do was to keep open the “common space” of genre and style, and let new artists create their new compositions out of the material in that commons and gain protection over them. In many ways, Charles’s work lies at the very core of the stuff copyright wishes to promote. It is not merely innovative and expressive itself, it also helped form a whole new genre in which other artists could express themselves. But to create this work, Charles needed to make use of a lot more than just genres and styles created by others. He needed their actual songs. If the reactions of Clara Ward and Big Bill Broonzy are anything to go by, they would not have given him permission. To them, soul was a stylistic violation, a mingling of the sacred with the profane. If given a copyright veto over his work, and a culture that accepts its use, Ward might well have exercised it. Like the disapproving heirs that Macaulay talked about, she could have denied us a vital part of the cultural record. Control has a price. + +Did Ray Charles commit copyright infringement? Perhaps. We would have to find if the songs are substantially similar, once we had excluded standard forms, public domain elements, and so on. I would say that they are substantially similar, but was the material used copyright-protected expression? + +The Copyright Office database shows no entry for “I’ve Got a Savior.” This is not conclusive, but it seems to indicate that no copyright was ever registered in the work. In fact, it is quite possible that the song was first written without a copyright notice. Nowadays that omission would be irrelevant. Works are copyrighted as soon as they are fixed in material form, regardless of whether any copyright notice is attached. In 1951, however, a notice was required when the work was published, and if one was not put on the work, it passed immediately into the public domain. However, later legislation decreed that the relevant publication was not of the record, but of the notation. If the record were pressed and sold without a copyright notice, the error could be corrected. If a lead sheet or a sheet music version of “I’ve Got a Savior” had been published without notice or registration, it would enter the public domain. It is possible that this happened. Intellectual property rights simply played a lesser role in the 1950s music business than they do today, both for better and for worse. Large areas of creativity operated as copyright-free zones. Even where copyrights were properly registered, permission fees were not demanded for tiny samples. While bootlegged recordings or direct note-for-note copies might well draw legal action, borrowing and transformation were apparently viewed as a normal part of the creative process. In some cases, artists simply did not use copyright. They made money from performances. Their records might receive some kind of protection from state law. These protections sufficed. + +But the lack of protection also had a less attractive and more racially skewed side. African-American artists were less likely to have the resources and knowledge necessary to navigate the system of copyright. For both black and white artists, whatever rights there were moved quickly away from the actual creators toward the agents, record companies, and distributors. They still do. But African-American musicians got an even worse deal than their white counterparts. True, the copyright system was only an infinitesimal part of that process. A much larger part was the economic consequences of segregation and racial apartheid. But copyright was one of the many levers of power that were more easily pulled by white hands. This is an important point because the need to end that palpable racial injustice is sometimes used to justify every aspect of our current highly legalized musical culture. About that conclusion, I am less convinced. + +In any event, it is possible that the musical composition for “I’ve Got a Savior” went immediately into the public domain. If that were the case, Ray Charles could draw on it, could change it, could refine it without permission or fee. Certainly there is no mention of seeking permission or paying fees in any of the histories of “I Got a Woman.” Indeed, the only question of rectitude Charles was focused on was the stylistic one. Was it appropriate to mix gospel and R&B, devotional music and secular desire? Charles and Richard seemed to see the process of rewording and adapting as just a standard part of the musician’s creative process. The only question was whether these two styles were aesthetically or morally suited, not whether the borrowing itself was illegal or unethical. So, whether they drew on a hymn that had fallen into the public domain after the expiration of its copyright term, or a gospel song for which copyright had never been sought, or whether they simply took a copyrighted song and did to it something that no one at the time thought was legally inappropriate, Renald Richard and Ray Charles were able to create “I Got a Woman” and play a significant role in founding a new musical genre—soul. + +One thing is clear. Much of what Charles and Richard did in creating their song would be illegal today. Copyright terms are longer. Copyright protection itself is automatic. Copyright policing is much more aggressive. The musical culture has changed into one in which every fragment must be licensed and paid for. The combination is fatal to the particular pattern of borrowing that created these seminal songs of soul. + +That should give us pause. I return to the ideas of the Jefferson Warning from Chapter 2 and the Sony Axiom from Chapter 4. Copyright is not an end in itself. It has a goal: to promote the progress of cultural and scientific creativity. That goal requires rights that are less than absolute. As Jessica Litman points out, building in the intellectual space is different from building in the physical space. We do not normally dismantle old houses to make new ones. This point is not confined to music. Earlier I quoted Northrop Frye: “Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the assimilation of literature to private enterprise.”~{Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, N.J.: Princeton University Press, 1957), 96–97.}~ The question is, how big are the holes we need to leave in the private rights? How large a commons do we need to offer to future creators? + +Ray Charles’s creation of “I Got a Woman” is only one case. By itself, it proves nothing. Yet, if we find that the seminal, genre-creating artworks of yesteryear would be illegal under the law and culture of today, we have to ask ourselves “is this really what we want?” What will the music of the future look like if the Clara Wards and Will Lamartine Thompsons of today can simply refuse to license on aesthetic grounds or demand payment for every tiny fragment? Tracing the line further back, it is fascinating to wonder whether gospel, blues, and jazz would have developed if musical motifs had been jealously guarded as private property rather than developed as a kind of melodic and rhythmic commons. Like most counterfactuals, that one has no clear answer, but there is substantial cause for skepticism. If copyright is supposed to be promoting innovation and development in culture, is it doing its job? + +2~ An Industry of Gold Diggers + +Fifty years after “I Got a Woman” was written, Kanye West released “Gold Digger” on the album Late Registration. Mr. West is an interesting figure in rap. At first he was shunned because his clean-cut looks and preppy clothing ran against the gangster image that often dominates the music. It is just hard imagining Mr. West delivering a line like Rakim’s “I used to be a stick-up kid, so I think of all the devious things I did” with a straight face. (Still less “Stop smiling, ain’t nothin’ funny, nothing moves but the money.”) Perhaps partly as a result, his lyrics are oddly bipolar in their views about exaggerated masculinity and the misogyny that sometimes accompanies it. + +For the song, Mr. West recruited Jamie Foxx, who had played Ray Charles in the movie Ray. Showing an impressive expanse of oiled chest, Mr. Foxx imitates Charles’s style and the melody of “I Got a Woman” to provide the lyrical chorus to “Gold Digger.” “I Got a Woman” anchors West’s song. It provides its melodic hook. It breaks up the rap with a burst of musical nostalgia. But Mr. West’s gold digger is very different from Ray Charles’s woman friend. This woman does not give money when the singer is in need. She takes his money when he is in need and is a “triflin’ friend indeed.” Mr. Charles had a friend who gave him tender morning loving. Jamie Foxx sings of a mercenary gold digger who digs on him. When Mr. West adds the rap verses to the song, we get a perfect caricature of such a person, uninterested in any man who is broke, dragging around four kids and an entourage, insisting all of them be entertained at her boyfriend’s expense, and wielding unfounded paternity suits like a proprietary business method. Mr. West’s repeated disclaimer “I ain’t sayin’ she’s a gold digger” is unconvincing, because both the words of the introduction and the implicit message of the rap tell us she is. We even get the absurd image of a man who is playing on the winning side in the Super Bowl but driving a Hyundai, so financially demanding is his girlfriend. At several points the song descends into ludicrous—and perhaps conscious—self-mockery, as it explores the concerns of the rich African-American celebrity male. My favorite line is “If you ain’t no punk, holler ‘We want prenup!!’ ” The audience obliges. It sounds like assertiveness training for show business millionaires. + +It would be hard to get a feminist role model out of either “I Got a Woman” or “Gold Digger.” One offers the feminine virtues of modesty and fidelity, but magically combines them with wantonness where the singer is concerned and an open checkbook. The other is a parody of the self-assertive economic actor, as rapacious as any multinational, who uses her sexuality for profit. Put them together and you have bookends—male fantasy and male nightmare. Was that Mr. West’s point? Perhaps. The song itself takes several sly turns. The gold digger dogging Mr. West is used as part of a homily to black women on how to treat their (noncelebrity) black men. They should stick with their man because his ambition is going to take him from mopping floors to the fryers, from a Datsun to a Benz. It seems that Mr. West is getting a little preachy, while slamming the actual social mobility available to black men. Moving from floor cleaning to frying chicken is not actually going to provide a Mercedes. But he immediately undercuts that tone twice, once by acknowledging the boyfriend’s likely infidelity and again by saying that even if the black woman follows his homily, “once you get on, he leave yo’ ass for a white girl.” + +Mr. West has a tendency to make sudden turns like this in his lyrics—ironically upsetting the theme he has just set up. So it is not hard to imagine that he deliberately used a fragment of Charles’s song, not just because it sounded good but to contrast the image of the fantasy woman from Charles’s 1950s soul, who is faithful, sensual, and always willing to offer a loan, with an image from today’s rap—sexually predatory and emasculating women who are uninterested in men except as a source of money. Even the retro cover of the single, with its 1950s-style pinup drawing of a white model, seems to draw the connection. Did he use Charles’s song precisely because of these clashing cultural snapshots? Perhaps, or perhaps he just liked the tune. In any event, the contrast is striking. When it was released, Charles’s song was seen as a sacrilegious depiction of sensuality and the woman was decried as a harlot. Compared to the woman in Mr. West’s song, she sounds like a Girl Scout. It is also a little depressing. Ray Charles was neither an egalitarian metrosexual nor a Prince Charming where women were concerned—anything but. But as I said before, you do get a sense that he liked women—however unrealistic or two-dimensional their portrayal. It is hard to get that sense from “Gold Digger.” + +Was Mr. West legally required to ask permission—and pay, if necessary—to use a fragment of “I Got a Woman” for his chorus? The longest single piece of borrowing occurs in the introduction: twenty-six words and their accompanying music. “She takes my money, when I’m in need, oh she’s a triflin’ friend indeed. Oh she’s a gold digger, way over town, who digs on me.” As I pointed out, the lyrics from Charles’s song present a very different story. “She gimme money / when I’m in need / Yeah she’s a kind of / friend indeed / I’ve got a woman / way over town / who’s good to me.” But even if the message is the opposite, the musical borrowing is direct. It is also extensive. During Mr. West’s rap, the entire background melody is a loop of Jamie Foxx singing the Ray Charles-inspired melody in the background. During the song, Mr. Foxx returns to words that are closer to Charles’s original: “She gimme money, when I’m in need,” a refrain that is conspicuously at odds with the woman being described by Mr. West. That eight-bar loop of a Ray Charles melody runs throughout Kanye West’s song. + +Mr. West is very successful, so the fragment of the song was “cleared”—payment was made to Charles’s estate. It is fascinating to think of what might have happened if Charles’s heirs had refused. After all, one could see West’s song as a crude desecration of Charles’s earlier work, rather than a good-humored homage. Since this is not a “cover version” of the song—one which does not change its nature and thus operates under the statutory licensing scheme—Charles’s heirs would have the right to refuse a licensing request. Unlike Clara Ward, it is clear that Charles’s heirs have the legal power to say no, to prevent reuse of which they disapprove. + +Was West legally required to license? Would all this amount to a copyright violation? It is worth running through the analysis because it gives a beautiful snapshot of the rules with which current law surrounds musical creation. + +Today, a song is generally covered by at least two copyrights. One covers the musical composition—the sheet music and the lyrics—and the other the particular sound recording of that composition. Just as there are two kinds of copyrights, so there are at least two kinds of borrowings that copyright might be concerned with. First, one musical composition might infringe another. Thus, for example, a court found that George Harrison “subconsciously” based his song “My Sweet Lord” on the melody of “He’s So Fine” by the Chiffons. + +How much does it take to infringe? That is a difficult question. The law’s standard is “substantial similarity,” but not every kind of similarity counts. Minimal or de minimis copying of tiny fragments is ignored. Certain styles or forms have become standards; for example, the basic chord structure of the twelve-bar blues or the habit of introducing instruments one at a time, from quietest to loudest. There are only so many notes—and so many ways to rearrange them; inevitably any song will be similar to some other. Yet that cannot mean that all songs infringe copyright. Finally, even where there is substantial similarity of a kind that copyright is concerned with, the second artist may claim “fair use”—for parody or criticism, say. Copyright law, in other words, has tried to solve the problem with which I began the chapter. Because much of musical creativity is organic and collective and additive, because it does use prior musical expression, some copyright decisions have tried to carve out a realm of freedom for that creativity, using doctrines with names such as scènes à faire, merger, and fair use. This is yet another example of judges trying to achieve the balance that this book is all about—between the realm of the protected and the public domain—recognizing that it is the balance, not the property side alone, that allows for new creativity. + +The second type of potential infringement comes when someone uses a fragment of the earlier recording as part of the later one, actually copying a portion of the recording itself and using it in a new song. One might imagine the same rules would be applied—de minimis copying irrelevant, certain standard forms unprotected, and so on. And one would be wrong. In a case called Bridgeport Music, which I will discuss in a moment, the Court of Appeals ruled that taking even two notes of a musical recording counts as potentially actionable copying. Where recordings are concerned, in other words, there is almost no class of copying so minimal that the law would ignore it. This is a terrible decision, at least in my opinion, likely to be rejected by other Circuits and perhaps even eventually by the Supreme Court. But for the moment, it is a case that samplers have to deal with. + +How does Kanye West fare under these rules? He may sample from the actual recording of Mr. Charles’s song. It is hard to tell. He certainly copies portions of the melody. That means we have to look at the copyright in the musical composition—the words and the music of “I Got a Woman.” For a copyright infringement, one needs a valid copyright and evidence of copying, the amount copied needs to be more than an insignificant fragment, substantial similarity is required, and the similarity has to be between the new work and the elements of the original that are actually protected by copyright. Elements taken from the public domain, standard introductions, musical clichés, and so forth, do not get included in the calculation of similarity. Finally, the copier can claim “fair use”—that his borrowing is legally privileged because it is commentary, criticism, parody, and so on. + +Does Charles, or his record company, have a valid copyright in the musical composition? One huge problem in copyright law is that it is remarkably hard to find this out. Even with the best will in the world, it is hard for an artist, musician, or teacher to know what is covered by copyright and what is not. Nowadays, all works are copyrighted as soon as they are fixed, but at the time “I Got a Woman” was written one had to include a copyright notice or the song went immediately into the public domain. The Copyright Office database shows no copyright over the words and music of “I Got a Woman.” There are copyrights over a variety of recordings of the song. If Mr. West is using a fragment of the recording, these would affect him. But the melody? It is possible that the underlying musical composition is in the public domain. Finding out whether it is or is not would probably cost one a lot of money. + +Suppose that Mr. Charles has complied with all the formalities. The words and music were published with a copyright notice. A copyright registration was filed and renewed. Does Mr. West infringe this copyright? That is where the discovery of the Bailey Gospel Singers recording is potentially so important. Charles only gets a copyright in his original creation. Those elements taken from the public domain (if “I’ve Got a Savior” was indeed in the public domain) or from other copyrighted songs do not count. The irony here is that the elements that Kanye West borrows from Ray Charles are almost exactly the same ones Ray Charles borrows from the Bailey Gospel Singers. “I’ve got a savior, Oh what a savior” becomes “I got a woman, way over town” becomes “There’s a Gold Digger, way over town.” And of course, the music behind those words is even more similar. When The Legendary K.O. reached for Kanye West’s song in order to criticize Mr. Bush, they found themselves sampling Jamie Foxx, who was copying Ray Charles, who was copying the Bailey Gospel Singers, who themselves may have borrowed their theme from an older spiritual. + +2~ George Bush Doesn’t Care . . . + +poem{ + +Five damn days, five long days +And at the end of the fifth he walking in like “Hey!” +Chilling on his vacation, sitting patiently +Them black folks gotta hope, gotta wait and see +If FEMA really comes through in an emergency +But nobody seem to have a sense of urgency +Now the mayor’s been reduced to crying +I guess Bush said, “N———’s been used to dying!” +He said, “I know it looks bad, just have to wait” +Forgetting folks was too broke to evacuate +N———’s starving and they dying of thirst +I bet he had to go and check on them refineries first +Making a killing off the price of gas +He would have been up in Connecticut twice as fast . . . +After all that we’ve been through nothing’s changed +You can call Red Cross but the fact remains that . . . +George Bush ain’t a gold digger, +but he ain’t f——ing with no broke n———s + +}poem + +“George Bush Doesn’t Care About Black People,” The Legendary K.O. + +The song “George Bush Doesn’t Care About Black People” was an immediate sensation. Hundreds of thousands of people downloaded it. Within days two different video versions had been made, one by Franklin Lopez and another by a filmmaker called “The Black Lantern.” Both synchronized the lyrics of the song with news clips of the disaster and unsympathetic footage of President Bush apparently ignoring what was going on. The effect was both hilarious and tragic. The videos were even more popular than the song alone. The blogosphere was fascinated—entries were posted, e-mails circulated to friends with the usual “you have to see this!” taglines. In fact, the song was so popular that it received the ultimate recognition of an Internet fad: the New York Times wrote a story on it, setting the practice in historical context. + +_1 In the 18th century, songwriters responded to current events by writing new lyrics to existing melodies. “Benjamin Franklin used to write broadside ballads every time a disaster struck,” said Elijah Wald, a music historian, and sell the printed lyrics in the street that afternoon. This tradition of responding culturally to terrible events had almost been forgotten, Mr. Wald said, but in the wake of Hurricane Katrina, it may be making a comeback, with the obvious difference that, where Franklin would have sold a few song sheets to his fellow Philadelphians, the Internet allows artists today to reach the whole world.~{John Leland, “Art Born of Outrage in the Internet Age,” New York Times (September 25, 2005), D3.}~ + +Mr. Nickerson’s and Mr. Randle’s song started with Kanye West’s words—taken from the fundraiser with Mike Myers. “George Bush doesn’t care about black people.” From there it launched into the song. The background melody comes almost entirely from a looped, or infinitely repeated, version of the hook that Kanye West and Jamie Foxx had in turn taken from Ray Charles: “She gimme money, when I’m in need. I gotta leave.” Against that background, The Legendary K.O. provide their profane and angry commentary, part of which is excerpted above, with a chorus of “George Bush don’t like black people,” in case anyone had missed the point. + +The videos differ in the issues they stress. Franklin Lopez’s movie is, rather pointedly given its theme, just black and white. He uses ornate captions pages, reminiscent of silent film from the 1920s, to make political points against the background of the song and the news footage. As the captions read “Katrina Rapidly Approaches,” we cut to a shot of the hurricane. “The President Ponders on What to Do.” We have a shot of Mr. Bush playing golf. “I Think I’ll Ride This One Out.” Mr. Bush is shown relaxing on a golf cart, juxtaposed against pictures of African-Americans wading through the floods. The captions add, as an afterthought, “And Keep Dealing with the Brown People.” (Pictures of soldiers shooting.) When FEMA’s Michael Brown is shown—at the moment when Bush said “Brownie, you are doing a hell of a job”—the captions comment mockingly, “The Horse Judge to the Rescue.” + +Mr. Lopez’s video obviously tries to use The Legendary K.O.’s song to make larger political arguments about the country. For example, it asserts that “in 2004 Bush diverted most of the funds for the levees to the war in Iraq.” Scenes reminiscent of a Michael Moore documentary are shown. There are pictures of the Iraq war, Halliburton signs, and shots of the president with a member of the Saudi royal family. The captions accuse the president of showing insensitivity and disdain to racial minorities. One summarizes the general theme: “Since he was elected president, George Bush’s policies have been less than kind toward Africans and Hispanics.” Issues ranging from the response to the Darfur massacres, No Child Left Behind, and the attempted privatization of Social Security also make their appearance. The video concludes by giving the donation information for the Red Cross and saying that we are “onto” Bush. A picture of a Klansman removing his hood is shown, with the image manipulated so that the face revealed is Mr. Bush’s. + +The Black Lantern’s video is just as angry, and it uses some of the same footage, but the themes it picks up are different. It starts with a logo that parodies the FBI copyright warning shown at the beginning of movies: “WARNING: Artist supports filesharing. Please distribute freely.” That dissolves into a picture of Kanye West and Mike Myers. West is speaking, somewhat awkwardly as he goes “off script,” and at first Mr. Myers is nodding, though he starts to look increasingly worried. West says, “I hate the way they portray us in the media. You see a black family it says they are looting. You see a white family, it says they are looking for food.” Finally, West says “George Bush doesn’t care about black people” and the camera catches Myers’s mute, appalled reaction. Then the song begins. The film cuts repeatedly between a music video of Mr. Foxx as he sang the lines for “Gold Digger” and the news coverage of the debacle in New Orleans. At one point the music pauses and a news anchor says, “You simply get chills when you look at these people. They are so poor. And so black.” The song resumes. Here the message is simpler. The media coverage is biased and governmental attention slowed because of negative racial stereotypes and lack of concern about black people. + +Some readers will find that this song and these videos capture their own political perspectives perfectly. They will love the bitterly ironic and obscene outrage at the government’s failure, the double standards of the press, and the disproportionate and callously disregarded impact on the poor and black. Others will find both song and films to be stupid, insulting, and reductionist—an attempt to find racial prejudice in a situation that, at worst, was an example of good old-fashioned governmental incompetence. Still others will find the language just too off-putting to even think about the message. Whatever your feelings about the content, I urge you to set them aside for a moment. For better or worse, Mr. Bush just happened to be president at the moment when the Internet was coming into its own as a method of distributing digitally remixed political commentary, which itself has recently become something that amateurs can do for pennies rather than an expensive activity reserved to professionals. The point is that whatever rules we apply to deal with “George Bush Doesn’t Care About Black People” will also apply to the next video that alleges corruption in a Democratic administration or that attacks the sacred cows of the left rather than the right. How should we think about this kind of activity, this taking the songs and films and photos of others and remixing them to express political, satirical, parodic, or simply funny points of view? + +2~ Sampling + +Let us begin with the music. Unlike the other songs I have discussed here, with the possible exception of Mr. West’s, “George Bush Doesn’t Care About Black People” makes use of digital samples of the work of others. In other words, this is not merely about copying the tune or the lyrics. The reason that Mr. Nickerson and Mr. Randle could make and distribute this song so fast (and so cheaply) is that they took fragments from the recording of “Gold Digger” and looped them to form the background to their own rap. That was also part of the reason for the positive public reaction. Kanye West (and Ray Charles and Clara Ward) are very talented musicians. West’s song was already all over the airwaves. The Legendary K.O. capitalized on that, just as Benjamin Franklin capitalized on the familiarity of the songs he reworded. But where Franklin could only take the tune, The Legendary K.O. could take the actual ones and zeros of the digital sound file. + +As I mentioned earlier, there are two types of copyright protection over music. There is the copyright over the musical composition and, a much more recent phenomenon, the copyright over the actual recording. This song potentially infringes both of them. + +Readers who came of age in the 1980s might remember the music of Public Enemy and N.W.A.—a dense wall of sound on which rap lyrics were overlaid. That wall of sound was in fact made up of samples, sometimes hundreds of tiny samples in a single track. Rap and hip-hop musicians proceeded under the assumption that taking a fragment of someone else’s recording was as acceptable legally (and aesthetically) as a jazz musician quoting a fragment of another tune during a solo. In both cases, the use of “quotation” is a defining part of the genre, a harmless or even complimentary homage. Or so they thought. + +In a 1991 case called Grand Upright, that idea was squashed.~{Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991).}~ The rap artist Biz Markie had extensively sampled Gilbert O’Sullivan’s song “Alone Again (Naturally)” for his own song “Alone Again.” The court could have applied the rules described earlier in this chapter, decided whether or not this was a large enough usage to make the second song substantially similar to the original, discussed whether or not it counted as a fair use, whether Markie’s use was transformative or parodic, whether it was going to have a negative impact on the market for the original, weighed the issues, and ruled either way. In doing so, there would have been some nice points to discuss about whether or not the breadth of fair use depends in part on the practice in the relevant artistic community, how to understand parodic reference, or the relevant markets for the work. (Biz Markie’s lawyers had asked for permission to use the sample, but the Supreme Court has made clear that seeking permission does not weigh against a defense of fair use.) There were also some tricky issues about the breadth of legal rights over recordings—the right was of relatively recent creation and had some interesting limitations. Underlying it all was a more fundamental question: how do we interpret the rules of copyright so as to encourage musical creativity? After all, as this chapter has shown, borrowing and reference are a fundamental part of musical practice. We ought to think twice before concluding they are illegal. Are we to criminalize jazz? Condemn Charles Ives? And if not, what is the carefully crafted line we draw that allows some of those uses but condemns this one? + +Judge Duffy, however, was uninterested in any of these subtleties. + +_1 “Thou shalt not steal” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.~{Ibid., 183.}~ + +If this were a law school exam, it would get a “D.” (Maybe a C given grade inflation.) Duffy makes all of the errors Jefferson warned us against. Tangible property is the same as intellectual property. Songs are the same as sheep and the same rules can apply to both. Theft is theft. The prior injunctions of the framers and the courts notwithstanding, we do not need to think carefully about the precise boundaries of intellectual property rights or worry that interpreting them too broadly is as bad as making them too narrow. So far as Judge Duffy is concerned, the tablets on Mount Sinai were inscribed with an absolute injunction against digital sampling. (The font must have been small.) But to say all this is merely to scratch the surface of how regrettable a decision it is. In the narrowest and most formalistic legal terms it is also very poor. + +Judge Duffy gives not a single citation to the provisions of the Copyright Act. He ignores issues of de minimis copying, substantial similarity, fair use, and the differences between the right over the recording and that over the composition. In fact, he quotes the Bible more, and more accurately, than he does Title 17 of the U.S. Code—the Copyright Act. The one mention he makes of actual copyright law is at the end of the opinion, when he refers the case for criminal prosecution! When I first read this case, I seriously wondered for a moment if it were a crude parody of a legal opinion written by someone who had never been to law school. + +Is the result in this case wrong? Personally, I do not think so. It is possible, even probable, that a conscientious judge who bothered to read the law could go through a careful analysis and find that Markie’s use went beyond de minimis copying, that it was neither creative, parodic, nor short enough to count as a fair use. The judge might have presumed a negative effect on the market for Mr. O’Sullivan’s song and thus could have ruled that it was a copyright infringement. In doing so, the judge would have to give some guidance to future courts about digital sampling. The most likely guidance would be “the sample here is so extensive and so unchanged, that this case says little about the wider musical practice of sampling.” Judge Duffy’s opinion was poor not because of the result he reached, but because he reached it in an overly broad and judicially inappropriate way that became a guideline for future cultural creation. Worse still, the industry listened to him. + +In excellent books on this issue, Kembrew McLeod and Siva Vaidhyanathan each argue that Grand Upright was a disaster for rap music.~{Kembrew McLeod, Owning Culture: Authorship, Ownership and Intellectual Property Law (New York: Peter Lang, 2001), and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001).}~ The industry’s practice turned full circle almost overnight. Now every sample, no matter how tiny, had to be “cleared”—licensed from the owners of the recording. As they tell the story, this “legal” change caused an aesthetic change. The number of samples in an average song dropped precipitously. The engaging complexity of the Public Enemy “wall of sound” gave way to the simplistic thumping beat and unimaginative synthesizer lines of modern rap. I must admit to sharing McLeod’s and Vaidhyanathan’s musical prejudices. The causal claim is harder to substantiate, but industry lawyers and musicians both agree that changes in the industry’s understanding of the law had a major role in transforming the practice of sampling. + +If we disregard the Jefferson Warning and assume the recording artist has absolute property rights over his work, then we could ignore the idea that forcing people to pay for stuff they take might have a negative effect on future art and culture. Theft is theft. I might be able to make art much more easily if I did not have to pay for the paint and canvas, but that is not commonly held to excuse shoplifting from art stores. But if we take the Jefferson Warning seriously, then intellectual property’s job is to balance the need to provide incentives for production and distribution with the need to leave future creators free to build upon the past. Reasonable minds will differ on where this line is to be drawn, but the process of drawing it is very different from the process Judge Duffy had in mind. + +For fifteen years, critics of the decision waited for an appeals court to fix the law in this area. When the case of Bridgeport Music, Inc. v. Dimension Films came up, they thought they had what they wanted. The band NWA had used a tiny fragment (less than two seconds) consisting of three notes of a guitar solo from the George Clinton song “Get Off Your Ass and Jam.” The fragment was an arpeggiated chord, which simply means that you strike the notes of the chord individually and in sequence. It was, in fact, a pretty standard “deedly” sound, familiar from many guitar solos. NWA then heavily distorted this fragment and looped it so that it played in the background of one part of the song—so faintly that it is almost impossible to hear and completely impossible to recognize. (With the distortion it sounds like a very faint and distant police siren.) A company called Bridgeport Music owned the sound recording copyright over the Clinton song. They sued. NWA’s response was predictable—this was classic de minimis copying, which the law did not touch. One did not even have to get to the issue of fair use (though this surely would be one). + +The appeals court did not waste any time attempting to dignify Judge Duffy’s decision in Grand Upright. + +_1 Although Grand Upright applied a bright-line test in a sampling case, we have not cited it as precedent for several reasons. First, it is a district court opinion and as such has no binding precedential value. Second, although it appears to have involved claims for both sound recording and musical composition copyright infringement, the trial judge does not distinguish which he is talking about in his ruling, and appears to be addressing primarily the musical composition copyright. Third, and perhaps most important, there is no analysis set forth to indicate how the judge arrived at his ruling, which has resulted in the case being criticized by commentators.~{Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 804n16 (6th Cir. 2005).}~ + +They did like one thing about the decision, however: its bright-line rule, “Thou Shalt Not Steal.” (Lawyers use the term “bright-line rule” to refer to a rule that is very easy to apply to the facts. A 55 mph speed limit is a bright-line rule.) The Bridgeport court rejected the idea that sound recording copyrights and music composition copyrights should be analyzed in the same way. They wanted to set a clear rule defining how much of a sound recording one could use without permission. How much? Nothing. To be precise, the court suggests in a footnote that taking a single note might be acceptable since the copyright protection only covers a “series.” Anything more, however, is clearly off limits. + +Though they come to a conclusion that, if anything, is more stringent than Judge Duffy’s, they do so very differently. In their words, “Get a license or do not sample.” Effectively, the court concludes that the sound recording copyright is different enough from the composition copyright that a court could reasonably conclude that a different analysis is required. The judges are fully aware that copyright must balance encouraging current creators and leaving raw material to future creators—the Jefferson Warning holds no novelty for them. But they conclude that a clear “one-note rule” will do, because if the costs of licenses are too high, samplers can simply recreate the riff themselves, and this will tend to keep prices reasonable. + +This is an interesting idea. Why does this not happen more often? Why do samplers not simply recreate James Brown’s drumbeat from “Funky Drummer,” or George Clinton’s solo from “Get Off Your Ass and Jam”? Musicians offer lots of different answers. They do not understand the distinction the court is drawing, so the market never develops. The samples themselves cannot be replicated, because the music has all kinds of overtones from the historical equipment used and even the methods of recording. Fundamentally, though, the answer seems to be one of authenticity, ironically enough. The original beats have a totemic significance—like the great standard chord sequences in jazz. One cannot substitute replicas for James Brown’s funkiness. It just would not be the same. As Walter Benjamin pointed out long ago in “The Work of Art in the Age of Mechanical Reproduction,” cheap copying actually increases the demand for authenticity.~{Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction,” in Illuminations: Essays and Reflections, ed. Hannah Arendt, trans. Harry Zohn (New York: Harcourt, Brace & World, 1968), 217–42.}~ The court’s economic analysis—which imagines a world of fungible beats produced for music as a consumer good—deals poorly with such motivations. + +When the court first released its decision, it was greeted with concern even by recording industry representatives who might have been expected to favor it, because it appeared to do away with not only the de minimis limitation on copyright (some portions are just too small to count as “copying”) but the fair use provisions as well. The court took the very unusual step of rehearing the case and amending the opinion, changing it in a number of places and adding a paragraph that stated that when the case went back to the district court, the judge there was free to consider the fair use defense. Of course, if one takes this seriously—and, for the constitutional reasons given in Chapter 5, I agree that the court has no power to write fair use out of the statute—it undermines the supposedly clear rule. If the factors of fair use are seriously applied, how can a three-note excerpt ever fail to be fair use? And if we always have to do a conventional fair use analysis, then the apparent clarity of the one-note rule is an illusion. + +The Bridgeport decision is a bad one, I believe. Among other things, it fails to take seriously the constitutional limitations on copyright—including the originality requirement and the First Amendment. (A three-note sample is not original enough to be protected under copyright law, in my view. There are also more speech-related issues in sampling than the court seems to realize.) The competitive licensing market the court imagines seems more like economic fantasy than reality. I think the ruling sets unnecessary barriers on musical creation and ends up with a rule that is just as blurry as the one it criticizes. I think the court’s reading of the statute and legislative history is wrong—though I have not bored you with the full details of that argument. But I want to be clear that it is a very different kind of bad decision from Judge Duffy’s. + +The court in Bridgeport does see copyright as a balance. It does understand the need for future creators to build on the past, but it also shows that a simple willingness to look upon intellectual property protections in a utilitarian way does not solve all problems. It certainly does not proceed from Jefferson’s presumption that intellectual property protections should be interpreted narrowly. Though it claims to have a “literal” reading of the statute, the real driving force in the analysis is an unconsummated desire for bright-line rules and a belief that the market will solve these problems by itself. The court also suggests that “[i]f this is not what Congress intended or is not what they would intend now, it is easy enough for the record industry, as they have done in the past, to go back to Congress for a clarification or change in the law.” Note the assumption that “the record industry” is the most reliable guide to Congress’s intentions or that it is the only entity affected by such a rule. This is truly the image of copyright law as a contract among affected industries. Of course, digital artists such as The Legendary K.O. hardly fit within such a model. + +Under the rule in Bridgeport—“Get a license or do not sample”—Mr. Randle and Mr. Nickerson appear to be breaking the law. They did not get a license and they most definitely did sample. What about fair use? Under fair use, copyright allows a very specific (and possibly lengthy) use of another’s material when the purpose is parody of that prior work itself. The Supreme Court gave parody a unique status in the Acuff-Rose case. The (extremely profane) rap group 2 Live Crew had asked for permission to produce a version of Roy Orbison’s “Pretty Woman.” But where Orbison sang about the pretty woman walking down the street whom he would like to meet, 2 Live Crew wrote about a “big hairy woman” (“with hair that ain’t legit, ’cause you look like Cousin It”). They sang about a “bald headed” woman with a “teeny weeny afro.” They sang about group sex with both women. Finally, they told a “two timin’ woman,” “now I know the baby ain’t mine.” Justice Souter showed the characteristic sangfroid of a Supreme Court justice faced with raunchy rap music. + +_1 While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.~{Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994).}~ [emphasis added] + +Truly, the law can confront and master all cultural forms. The heart of parody as the Supreme Court described it is that one is taking aim at the original. Because 2 Live Crew could be seen as directing their song at Orbison’s original, rather than using Orbison’s song to make some other political or social point, the court was willing to give it the favorable consideration that parody receives as a fair use. + +Does “George Bush Doesn’t Care About Black People” fit that model? The Legendary K.O. were not “taking aim” at “Gold Digger.” True, they quoted West’s actual words from the television broadcast (also copyrighted). They even used them as their title. But they were not taking aim at his song. (Ironically, Kanye West has a better claim that he was taking aim at Ray Charles’s picture of womanhood, in just the way described in the 2 Live Crew case.) Rather, The Legendary K.O. were using the sample of the song as the backing to an entirely different rap that expressed, in familiar and popular musical form, a more expansive version of his condemnation of both press and president. That does not end the inquiry. Parody is not the only form of protected criticism or commentary. But it makes it much harder for them to succeed, particularly in light of the hostility toward sampling betrayed by both Grand Upright and Bridgeport. + +The videos made by The Black Lantern and Franklin Lopez present an even more complex set of questions. On top of the music copyright issues, we also have fair use claims for the extensive news footage and footage of Mr. Foxx. The Black Lantern also used some fragments of a popular video by JibJab, which had a cartoon Bush and Kerry singing dueling parodied versions of Woody Guthrie’s “This Land.” When JibJab’s video first came out, the Guthrie estate claimed copyright infringement over the song. Assisted by a number of public interest legal groups, JibJab claimed fair use. (It eventually came out that the copyright over the song was no longer valid.) What did Jib- Jab do when The Black Lantern sampled them in their turn? In a move that both wins the prize for hypocrisy and serves to sum up the intersection of law and culture I have been describing, they sent him a cease and desist letter. The video was taken down for a week and he was eventually forced to remove the segment of their video from his work. Fair use for me, but not for thee. + +2~ Conclusion + +The Legendary K.O. samples Kanye West, who uses a fragment from Ray Charles, who may have taken material from Will Lamartine Thompson or, more likely, from Clara Ward (who herself borrowed from a gospel standard). The chain of borrowing I describe here has one end in the hymns and spirituals of the early 1900s and the other in the twenty-first century’s chaotic stew of digital sampling, remix, and mashup. Along the way, we have the synthesis of old and the invention of new musical genres—often against the wishes of those whose work is serving as the raw material. One way of viewing this story is that each of these musicians (except for some imaginary original artist, the musical source of the Nile) is a plagiarist and a pirate. If they are licensing their material or getting it from the public domain, then they may not be lawbreakers but they are still unoriginal slavish imitators. If one’s image of creativity is that of the romantic, iconoclastic creator who invents the world anew with each creation, those conclusions seem entirely appropriate. The borrowing here is rampant. Far from building everything anew, these musicians seem quite deliberately to base their work on fragments taken from others. + +It is important to remember that copyright does not subscribe completely to the idea of romantic creation where music is concerned. As I pointed out earlier, musical genres develop out of other genres: soul from gospel and rhythm and blues; gospel from spirituals; rhythm and blues from jazz, jump music, and Delta blues; and so on. When it comes to genres, we can play the game of musicological “six degrees of separation” all day long. Copyright is supposed to leave “holes” in its coverage so that the genre is not covered, only the specific form of creativity within the genre. I mentioned before the need to keep the lines of genre and form open, to keep them free from private property rights in order to allow musicians to develop the form by using them as common property, the “highways” of musical progress. So, for example, the twelve-bar blues uses the first, fourth, and fifth chords in a scale. That sequence cannot be owned, unless blues is to become impossible or illegal. Bebop is characterized by copious use of the flattened fifth—a sound which was jarring to audiences when it was first introduced and which marked the break with the more accessible jazz of swing and the big bands. The flattened fifth is not owned. These characteristic genre-creating sequences or sounds are supposed to be left in the public domain, though increasingly some scholars—including me—are coming to believe that we have managed to make the copyright holder’s control so complete and so granular as to close those common areas and impede the development of future musical forms. The Bridgeport court might extend its logic and imagine that the entire musical commons could be licensed, of course. The presence of other chord sequences would keep the price down! But up to now, we have not gone that far. In theory at least, copyright is not supposed to stop the next Ray Charles, the person who wants to fuse two older forms of music to create a third. + +Yet the chain of borrowing that links The Legendary K.O., Kanye West, Ray Charles, and the Bailey Gospel Singers is of a different kind. This borrowing involves taking chunks of prior musicians’ melodies, their words, their lyrical patterns. This is not just copying the genre. It is copying the lines of the song within the genre. This is the kind of stuff copyright is supposed to regulate even when it is working well. And yet, listening to the sequence, it is hard to deny that at each stage something artistic and innovative, something remarkable, has been created. In fact, the story of this song is the striking ability of each set of artists to impose their own sound, temperament, spirituality, humor, vision of women, or, in the case of The Legendary K.O., their intense and profane political anger, onto the musical phrases they have in common. + +The postmodern conclusion here is “there is nothing new under the sun”—that all creation is re-creation, that there is no such thing as originality, merely endless imitation. If this is meant to be a comment about how things get created, at least in music, I think there is some truth to it. But if it is a claim about aesthetic worth, a denial that there are more and less creative individuals in the arts, I find it as facile and unconvincing as its romantic authorial opposite. + +What is fascinating about the artists I describe here is that, while they do not fit neatly into either the aesthetic ideal of independent creation or the legal model for how creative expression gets made, they each have a remarkable, palpable creativity. Each leaves us with something new, even if formed partly from the fragments of the past. One could describe Ray Charles as the merest plagiarist—making “search and replace” songs by substituting a woman for the deity in already-established hits. But if that is our conclusion, it merely proves that our theories of aesthetics are poorer than the creativity they seek to describe. So much the worse for the theories. + +As Jefferson pointed out, the lines surrounding intellectual property are hard to draw—something the Bridgeport court got right. When we draw them, whether legally or as a matter of aesthetic morality, we do so partly with standard instances in mind. “Well, that can’t be wrong,” we think to ourselves, and reason by analogy accordingly. Yet the process of analogy fails us sometimes, because the types of borrowing change over time. + +Ray Charles was frank about the way he copied the style and licks of Nat King Cole like an apprentice learning from a lawyer. But he and his estate assiduously guarded his copyrights against more modern borrowing they found to be inappropriate. Judge Duffy thunderously denounces Biz Markie. It is harder to imagine him leveling the same condemnation at Dizzy Gillespie, Charles Ives, Oscar Peterson, or, for that matter, Beethoven, though all of them made copious use of the works of others in their own. It is bizarre to imagine a Bridgeport-like rule being extended to composition copyrights and applied to music such as jazz. “Get a license or do not solo”? I think not. Does it make any more sense for sampling? + +If there is a single reason I told the story of these songs it is this: to most of us, certainly to me, the idea that copyright encourages creativity and discourages the reuse of material created by others seems reasonable. Of course, I would want to apply the correctives implied by the Jefferson Warning—to make sure the rights were as short and as narrow as possible. But at least when it comes to copying chunks of expression still covered by copyright, our intuitions are to encourage people to create “their own work,” rather than to rely on remix. What does that mean in the world of music? As the story I have told here seems to illustrate, even musicians of unquestioned “originality,” even those who can make a claim to having created a new musical genre, sometimes did so by a process rather more like collage than creation out of nothing, taking chunks of existing work that were proven to work well and setting them in a new context or frame. + +Imagine Ray Charles trying to create “I Got a Woman” today. Both of his possible sources would be strongly and automatically protected by copyright. The industries in which those works were produced would be much more legalistic and infinitely more litigious. The owners of those copyrights could use them to stop him from “desecrating their work”—which is literally what he is doing. We know Clara Ward objected to Charles’s other borrowings from gospel. I cannot imagine Will Lamartine Thompson or his worthy neighbors in East Liverpool looking kindly on the sweet “early morning loving” outside of wedlock described in “I Got a Woman,” still less the use of sacred music to glorify it. And copyright gives them the power to say no. Remember Macaulay’s description of how Richardson’s novels might have been censored by a moralistic heir? Even if the objections were not vetoes, but simple demands for payment, would we get “I Got a Woman” and “This Little Girl of Mine”? Given the extent of the borrowing that jump-started this particular genre-bridging effort, would we be likely to see the birth of soul music? + +Congress assures us that the many increases in copyright protection have been in the name of encouraging creativity. The music industry says the same thing when its pettifogging clearance procedures and permission culture are criticized. But do we really think we are more likely to get a twenty-first-century Ray Charles, or a fusion of styles to create a new genre, in the world we have made? Do we really think that the formalist ignorance of Judge Duffy or the market optimism of the Bridgeport court, in which thick markets offer fungible sets of samples to be traded like commodities, are good guides for the future of music? Are we in fact killing musical creativity with the rules that are supposed to defend it? + +An Internet optimist would tell us that is precisely the point. True, because of the errors described in the chapter on the Jefferson Warning, and the mistakes catalogued in the chapters on the Internet Threat and the Farmers’ Tale, we have dramatically expanded the scope, length, and power of the rights that are supposed to shape our creative culture. But technology cures all. Look at The Legendary K.O., The Black Lantern, or Franklin Lopez. They are all probably breaking the law as it is currently interpreted by the courts. But their work can be created for pennies and distributed to millions. The technology allows people to circumvent the law. Admittedly, some of the copyright holders will police their rights assiduously—think of JibJab’s newfound dislike of fair use and their power to alter The Black Lantern’s video. But others either cannot or will not. Kanye West’s representatives in particular are unlikely to be stupid enough to sue The Legendary K.O. in the first place. Internet distribution becomes a demimonde in which the rules of the rest of the society either cannot or will not be enforced. Art gets its breathing room, not from legal exceptions, but from technological enforcement difficulties. Finally, as more and more people can create and distribute digital culture, they are less likely to understand, believe in, or accept rules that are strongly at variance with their aesthetic and moral assumptions. + +There is a lot to these points. The technology does transform the conditions of creativity, and sometimes it runs right over the law in the process. Thousands, even millions, can be reached outside of conventional distribution channels with work that is technically illegal. And attitudes toward creative propriety do not track legal rules. When I wrote to Mr. Randle and Mr. Nickerson, I found that they realized Mr. West probably had a legal right to get their work taken down, but they felt he would not use it, and they had a very commonsensical conception of what they ought to be allowed to do. They were not making any money from this. They were making a political point, drawing attention to a political and human problem. That made it okay. They would have liked more formal permission so that they could actually distribute CDs through conventional for-profit channels, perhaps with some portion of the proceeds going to disaster relief, but they understood they were unlikely to get it. + +Despite all this, I am uncomfortable with the argument “do not worry, technology will allow us to evade the rules where they are stupid.” A system that can only function well through repeated lawbreaking is an unstable and dangerous one. It breeds a lack of respect for the law in those who should be its greatest supporters and beneficiaries. It blurs civil disobedience and plain old lawbreaking. Sitting in on the segregated lunch counter and being willing to face the consequences is very different from parking in the disabled space and hoping you can get away with it. It also blurs our judgment of conduct. Whatever one thinks of them, The Legendary K.O. are doing something very different than a college student who just does not want to pay for music and downloads thousands of tracks for free from file sharing networks. + +The problem is not simply one of blurring. Technology-based “freedoms” are not reliable (though legal ones, too, may fail). In a pinch, the technology may not save you, as thousands of those same downloaders have found out when sued by the RIAA and forced to pay thousands of dollars for an activity they thought to be private and anonymous. The Internet “solution” also leaves certain types of artistic creation dependent on the vagaries of the current technology, which may well change, eliminating some of the zone of freedom we currently rely on. But more worrisome is the fact that this “solution” actually confines certain types of art to the world of the Internet. + +The video of “George Bush Doesn’t Care About Black People” could be seen by many, but only if they were wired to the right technological and social network. (After all, someone has to tell you to watch.) It was a searing intervention in the national debate on Katrina. But it appeared on no television station. Like most of the mashups created online, the fact that the rights could never be cleared keeps it off mass media. Copyright acts as the barbed wire around mass media outlets. That is a shame, I think. Not because that video is so good—you may love it or hate it. But because this kind of artwork has something important to contribute to our national culture. Imagine a world in which Ray Charles could create “I Got a Woman,” but could only circulate it to a narrow group of the file-trading digerati because of a flagrant violation of Clara Ward’s copyright. Do we still get soul? The blues? Jazz? Or do we just get a precious and insular digital subculture, whose cultural experiments never reach the mainstream? + +Throughout his life, Charles described an intimate relationship with his audience, with the public. He described their tastes as a check, as a corrective; he thought they would actually be “ahead” of the artists. He wanted to make songs that would be listened to by tens of millions of people. And he wanted to make art and lots of money. I am all for the person who wants to create as an “amateur-professional” and distribute outside the chains of commerce. I have worked with organizations that make it easier to do this. But I also believe in the power and creativity of commercial culture and political speech carried on mass media. Ironically, our current copyright system serves it poorly. + +What is the solution to all of this? The music business runs on compulsory licenses, a legally granted ability to use music in certain ways without permission, though with a fee. The system seems to function pretty well. One solution is to extend that system to the world of mashups and derivative works. If you merely copy the whole of my work and circulate it on file sharing networks or on CDs, we apply the current rules and penalties. If, on the other hand, you make a “derivative” work, mixing your work with mine, then there are two alternatives. If you stay in the world of nonprofit exchange, you get a heightened presumption in favor of fair use (perhaps administered through a quicker and cheaper system of arbitration). If you move into the for-profit world, then you must pay a flat licensing fee or percentage of profits to the copyright holder. + +A second solution would be to curtail the hypertrophy of protectionism that made all this happen in the first place. The copyright term could be shortened or we could require renewal every twenty-eight years. (There are international treaties that currently forbid the latter alternative.) We could cut back on excesses like the Bridgeport decision, create incentives to make the music industry less legalistically insistent on policing the most atomic level of creation. We could exempt samples shorter than five seconds from copyright liability, clarify the boundaries of fair use, and extend it beyond parody to other genre-smashing forms such as satire and collage. + +There are enormous obstacles to all these proposals. In particular, while artists fare very poorly under the current clearance culture—paying but not receiving the benefits of payments—the middlemen who profit from transaction costs are not keen on abolishing them. Certainly if, as the Bridgeport court assumed, the recording industry is the party responsible for fine-tuning copyright law, we are hardly likely to see any reforms that threaten current modes of doing business. Yet there is a ray of hope. It is getting harder and harder to pretend that the rules ostensibly designed to encourage creativity are actually working. At the same time, more and more people are creating and distributing cultural objects—becoming “subjects” of intellectual property law in the process, often to their dismay and irritation. It is in that conjunction—a far cry from the industry contract envisioned by the Bridgeport court—that hope for the future of copyright law’s treatment of culture might lie. + +2~ Chapter 6: Further Reading + +Musical borrowing is the subject of the next “graphic novel”—which is to say comic book—produced by me, Keith Aoki, and Jennifer Jenkins: Theft!: A History of Music (Durham, N.C.: Center for the Study of the Public Domain, forthcoming 2009). Our earlier effort to make intellectual property accessible to film makers and mashup artists can be found in Bound By Law (Durham, N.C.: Center for the Study of the Public Domain, 2006), available in full at http://www.law.duke.edu/cspd/comics. An expanded edition of Bound By Law will be published in the Fall of 2008 by Duke University Press. However, neither graphic novel can provide a sense of the scholarly literature in music, musicology, law, and biography that enabled me to write this chapter. + +3~ Musical History + +The indispensable guide to music history is J. Peter Burkholder, Donald Jay Grout, and Claude V. Palisca, A History of Western Music, 7th ed. (New York: W. W. Norton, 2006). For those who have access through a university or library the Grove Music database is the single most comprehensive computer-aided source: [recenlty moved to] Oxford Music Online, http://www.oxfordmusiconline.com/public/ [Ed. note: originally published as http://www.grovemusic.com/index.html; link has changed]. A fascinating book by Frederic Scherer, Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries (Princeton, N.J.: Princeton University Press, 2004), explores different incentive systems—such as patronage or markets enabled by intellectual property rights—and their respective effect on musical aesthetics and musical production. Scherer is one of the foremost contemporary economists of innovation. To have him writing about the practices of court composers and manuscript publishers is completely fascinating. At the end of the day, he diplomatically refuses to say whether patronage or market mechanisms produced “better” music but the careful reader will pick up indications of which way he leans. + +3~ Musical Borrowing + +There is a vast scholarly literature on musical borrowing—indeed the discipline of musicology takes the study of borrowing, in its largest sense, as one of its main organizing themes. Beyond a personal tour provided by Professor Anthony Kelley of Duke University, I found a number of books particularly useful. Burkholder’s History (J. Peter Burkholder, Donald J. Grout, and Claude V. Palisca, A History of Western Music, 7th ed. (New York: W. W. Norton, 2006)) is full of examples of borrowing and influence—whether of style, notation, musical conventions, or melody itself. But it is Burkholder’s book on Charles Ives—that fertile early-twentieth-century borrower—that was most influential: J. Peter Burkholder, All Made of Tunes: Charles Ives and the Uses of Musical Borrowing (New Haven, Conn.: Yale University Press, 1995). Ives’s own thoughts on his mashup of prior American musical forms can be found in Charles Ives, Memos, ed. John Kirkpatrick (New York: W. W. Norton, 1991), 10–25. David Metzer’s Quotation and Cultural Meaning in Twentieth-Century Music (Cambridge: Cambridge University Press, 2003), throws light on the way that quotations or borrowings came to have a particular cultural meaning in different musical traditions. Honey Meconi’s collection Early Musical Borrowing, ed. Honey Meconi (New York: Routledge, 2004), discusses—among many other things—the issue of borrowing between the secular and religious musical traditions, something that helped me work through that issue in this chapter. Finally, “Musical Borrowing: An Annotated Bibliography” (http://www.chmtl.indiana.edu/borrowing/) provides a searchable database of articles about musical borrowing. + +3~ Music and Copyright Law + +I was particularly influenced by two books and two articles. The books are Kembrew McLeod, Owning Culture: Authorship, Ownership and Intellectual Property Law (New York: Peter Lang, 2001), and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001). McLeod and Vaidhyanathan are the authors who sounded the alarm about the cultural and aesthetic effects of the heavy-handed legal regulation of musical borrowing. Together with the work of Larry Lessig (particularly his writing on the “permissions culture”) Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), their scholarship has defined the field. + +The two articles that influenced me the most focus more specifically on the details of the evolution of music on the one hand and music copyright on the other. Both of them are by Michael Carroll: “The Struggle for Music Copyright,” Florida Law Review 57 (2005): 907–961, and “Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property,” University of Cincinnati Law Review 72 (2004): 1405–1496. But these two pieces by no means exhaust the literature. Olufunmilayo Arewa has written memorably on copyright and musical borrowing in “Copyright on Catfish Row: Musical Borrowing, Porgy & Bess and Unfair Use,” Rutgers Law Journal 37 (2006): 277–353, and “From J. C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context,” North Carolina Law Review 84 (2006): 547–645. I also recommend K. J. Greene, “Copyright, Culture & Black Music: A Legacy of Unequal Protection,” Hastings Communications & Entertainment Law Journal 21 (1999): 339–392. There is much, much more. Finally, Joanna Demers’s recent book Steal This Music: How Intellectual Property Law Affects Musical Creativity (Athens: University of Georgia Press, 2006), provides a more comprehensive coverage than I can hope to in a single chapter. + +Beyond the scholarly literature, two websites allow you to experiment with these issues online. The History of Sampling created by Jesse Kriss, http://jessekriss.com/projects/samplinghistory/, allows you to explore visually exactly which hip-hop samplers borrowed from which older songs and to trace the process backwards or forwards. Extremely cool. The Copyright Infringement Project, sponsored by the UCLA Intellectual Property Project and Columbia Law School, http://ccnmtl.columbia.edu/projects/law/library/caselist.html, is an extremely useful educational site that gives examples of cases alleging musical copyright infringement, including the relevant sound files. The older version of this project confusingly referred to these cases as “plagiarism” cases—something that judges themselves also frequently do. Plagiarism is the moral, academic, or professional sin of taking ideas, facts or expression and passing them off as your own. If I take the central arguments from your book and completely reword them, or if I present a series of facts you uncovered as an historian and include them in my own book without attribution, you may accuse me of plagiarism, though not of copyright infringement. If I take the words of Shakespeare or Dickens and pass them off as my own, I am committing plagiarism but certainly not copyright infringement, for even under today’s rules those works have long since entered the public domain. If I credit T. S. Eliot but then proceed to reprint the entire of “The Love Song of J. Alfred Prufrock” without the permission of the copyright holders, I am committing copyright infringement, but certainly not plagiarism. At best, plagiarism and copyright infringement overlap to some extent, but each regulates large areas about which the other is indifferent. We sap the strength of both norm systems by confusing them. The new incarnation of the project, at UCLA, has removed the word “plagiarism” from its title. + +3~ The People and the Music + +A brief biography of Will Lamartine Thompson can be found in C. B. Galbreath, “Song Writers of Ohio (Will Lamartine Thompson),” Ohio Archaeological and Historical Quarterly 14 (January, 1905): 291–312. Since the copyright has expired you can read it in full, and see the picture of Thompson, at http://books.google.com/books?id=3N-WqdvA6T4C&printsec=titlepage#PRA1-PA291,M1. + +The best book on Clara Ward is Willa Ward-Royster, Toni Rose, and Horace Clarance Boyer, How I Got Over: Clara Ward and the World Famous Ward Singers (Philadelphia, Penn.: Temple University Press, 1997). + +The best biography of Ray Charles is Michael Lydon, Ray Charles: Man and Music (New York: Routledge, 2004). Charles’s autobiography is also a fascinating read. Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story (Cambridge, Mass.: Da Capo Press, 1992). Charles’s website, which contains useful biographical and discographical information, is at www.raycharles.com. There is much more, of course, but these resources provide a good starting place. + +There are several hagiographic biographies of Mr. West, but none worth reading. Those who have not already been inundated with information through the popular press could do worse than to start with his rather breathless Wikipedia entry http://en.wikipedia.org/wiki/Kanye_West. + +The main source of information on The Legendary K.O.—a name they now use intermittently—is their website is www.k-otix.com. (I am grateful to Mr. Nickerson and Mr. Randle for confirming additional portions of the story by e-mail.) The song “George Bush Doesn’t Like Black People” is no longer available on their website, however an audio version of it is currently available at http://www.ourmedia.org/node/53964. The Black Lantern’s video can be found at http://www.theblacklantern.com/george.html. Franklin Lopez’s video can currently be found at http://www.youtube.com/watch?v=UGRcEXtLpTo. Whether any of those sites will be available in a year’s time is hard to tell. Those who plan to listen or view are reminded that the lyrics are ‘explicit.’ + +The songs by Clara Ward, Ray Charles, and Kanye West are widely available through a variety of commercial outlets, as are several commercial versions of “Jesus is All the World to Me” by Mr. Thompson. + +I would recommend The Clara Ward Singers, Meetin’ Tonight (Vanguard Records, 1994), compact disc. It includes a version of “Meetin’ Tonight: This Little Light of Mine” in which the human limits on the ability to sustain a note are broken repeatedly. Any Ray Charles compilation will feature some of the songs discussed here. The most economical is probably Ray Charles, I’ve Got a Woman & Other Hits by Ray Charles (Rhino Flashback Records, 1997), compact disc. It includes “I Got a Woman” and “This Little Girl of Mine.” Kanye West, Late Registration (Roc-a-Fella Records, 2005), compact disc, contains the full version of “Gold Digger.” + +Finally, I would love to be able to play you the full version of the Bailey Gospel Singers “I Got a Savior” (B-Side: “Jesus is the Searchlight”) (Columbia Records, 1951), 78 rpm phonograph record. Unfortunately, given the legal uncertainties I am forbidden from doing so, and I know of no licit way—for free or for pay—that you can listen to it, short of traveling to the Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts yourself and asking to hear the original 78. Perhaps that simple fact is the most elegant encapsulation of my argument here. + +1~ Chapter 7: The Enclosure of Science and Technology: Two Case Studies + +Over the last forty years, much has changed in the way that scientific research and technological development are organized, funded, and institutionally arranged. Much has also changed in the type of scientific and technical material that is covered by intellectual property rights, the ways that material is covered, the parties who hold the rights, and the state of research and development at which rights claims are made. Many academics who study both science’s organizational structure and the intellectual property claims that surround it are concerned about the results. To say this is not to conjure up a tragically lost world of pure research science, untainted by property claims or profit motives. That world never existed and it is probably a good thing too. Intellectual property rights, and the profit motive more generally, have a vital and beneficial role in moving innovations from lab bench to bedside, from computer simulation to actual flight. The question is not whether intellectual property rights are useful as part of scientific and technological development. The question is what type of rights they should be, where in the research process those rights are best deployed, how they should coexist with state funded basic scientific and technological research, how broad they should be, how they should deal with new technologies, how long they should last, how they should treat follow-on innovations. + +I cannot hope here to answer all those questions, though some fascinating research has begun the process. Instead, as with the music chapter, I will offer a case study—actually two case studies—that try to illuminate the process I am describing, to illustrate its pitfalls and its strange and unintended consequences. + +The two defining technologies of the last thirty years are biotechnology and the networked computer. Each is both product and platform. Innovations themselves, they are also constitutive technologies that enable still more innovations. But at several historical moments in the development of each we came perilously close to breaking technology with law.~{See, e.g., Pamela Samuelson, Randall Davis, Mitchell D. Kapor, and J. H. Reichman, “A Manifesto Concerning the Legal Protection of Computer Programs,” Columbia Law Review 94 (1994): 2308–2431; Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998): 698–701.}~ Some would say that it was not just a close shave: we actually have hampered or limited the full potential of technology, slowing down its dynamism with a host of overbroad software patents, gene patents, and materials transfer agreements. Others are more optimistic. They think that a series of rapid improvisations by courts, scientists, programmers, and businesspeople has largely mitigated any problems caused by the process of legal expansion.~{Wes Cohen’s empirical studies, for example, suggest that some of the potential dangers from overbroad gene patents have been offset by widespread lawbreaking among academic research scientists, who simply ignore patents that get in their way, and by more flexible licensing practices than the anticommons theorists had predicted. John P. Walsh, Ashish Arora, and Wesley Cohen, “Effects of Research Tool Patents and Licensing on Biomedical Innovation,” in Patents in the Knowledge-Based Economy, ed. W. Cohen and S. A. Merrill (National Research Council, 2003), 285–340.}~ But if mistakes were made, it is important to know what they were lest we continue or repeat them. If there were “fixes,” it is important to know if they can be replicated. + +So were there mistakes? If so, have they been fixed, and how? Drawing on an article I co-wrote with my brilliant colleague Arti Rai,~{Arti Rai and James Boyle, “Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons,” PLoS Biology 5 (2007): 389–393, available at http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050058&ct=1. }~ this chapter suggests some answers to those questions by sketching out some details of the legal history of those technologies, concluding with a discussion of a single promising new technology that shares aspects of both—synthetic biology. The answers are important. Behind the abstract words “innovation” or “technological development” there are lives saved or lost, communicative freedoms expanded or contracted, communities enabled or stunted, wealth generated or not. The subject would benefit from informed, sophisticated, democratic attention. It is not something you want to leave a host of lawyers and lobbyists to decide among themselves. + +2~ A Machine that Contains All Other Machines + +Imagine a person staring at an infinite roll of paper tape. On the paper are symbols in some alphabet or number system. The reader carries out simple, The Enclosure of Science and Technology operable instructions on the basis of that data. “Add together the next two digits you are presented with and write down the answer. If the answer is odd, go to step 2. If the answer is even, go to step 3.” Now replace the person with a mechanical head that can “read” the instructions, carry out the desired operations, and write the answer down. The British mathematician Alan Turing imagined something like this—a little more complicated, perhaps, but fairly similar. What is it? We have the reading head, the set of instructions, the data on which the instructions are to be performed, the record of the result, and some kind of “state table” that tells the machine where it is in the process. These are the component parts of Turing machines—or as we know them better, computers. More accurately, Turing machines are a method of simulating the operation of computers, a metaphor that enables us to imitate their logical processes. In the words of Wikipedia, “despite their simplicity—[they] can be adapted to simulate the logic of any computer that could possibly be constructed.” And to give lawyers fits. But that is getting ahead of ourselves. + +In Greek mythology, Procrustes had a bed to which he fitted its prospective occupants, whether they liked it or not. The tall were trimmed down. The short stretched on the rack. Intellectual property lawyers have many similarities to Procrustes. The technologies that are brought before them are made to fit the conceptual boxes the law provides, boxes with names such as “copyright” and “patent.” Occasionally, new conceptual boxes are made, but—for very good reasons—most of the time we stick with the boxes we have. As with Procrustes, things do not always fit and the process can be distressing for its subjects. + +It is important to realize that the process of trimming and stretching can be done well or badly. If it is done really badly, the technology is stunted, deformed, even destroyed. If it is done well, the law aids the development of the technology in exactly the happy way described in Chapter 1. What did our Procrustean legal system do with computers and computer science? + +I will focus on software—the set of instructions the machine is to perform. How should we think of it? Software is written down by programmers. It is recorded first in a form readable to humans, or at least geeks. Then, through a series of transformations, it is turned into the machine code, the ones and zeros that will operate the computer. But at its root it can be understood through the metaphor of the simple list of instructions to be carried out in order, just as with the Turing machine and its infinite tape. + +How should we fit software into the categories of intellectual property? We have “writing,” fixation in some medium of symbols that can be read by others—both machine and human. Writing is normally the domain of copyright. Are computer programs copyrightable? All kinds of problems present themselves. At least in the United States, copyright covers expression. As I pointed out in a previous book, at its base is the conception of the romantic author impressing her uniqueness of spirit on the work at the moment of writing. It is that expressive choice, not the facts or ideas on which the work is based, that copyright covers. And it is only original expression that copyright covers. It does not cover purely functional objects, systems, processes, or methods of operation. One cannot copyright the coat hanger, the mousetrap, or long division. One cannot even copyright a “sculpture” if the main function of its design is to serve as a bicycle rack. Admittedly, one can copyright some expressive works that serve a practical purpose. A book about how to do double-entry bookkeeping is copyrightable. Yet copyright covers only the expressive choices used in selecting the words to explain the method, and the images to represent it, not the methods it describes or the facts or ideas it contains. Can copyright cover computer programs? Should we see them as copyrightable how-to books or as uncopyrightable machines made of words? + +Machines and other functional innovations are normally the domain of patent rights. One can patent the mousetrap, and then one gets an exclusive right to the actual mechanically enabled method of catching mice, not just the artistic flourishes on the blueprint. Patents have more demanding criteria than copyrights. The invention needs to be novel and have utility, or usefulness; I cannot get a patent over something that would have been an obvious idea to an insider in the relevant field of technology, a “person having ordinary skill in the art,” or PHOSITA, in the jargon of patent lawyers. But once I get my patent, it gives me a very strong power to exclude others from the invention—even if they came up with it independently. The right lasts for twenty years. Follow-on innovators who improve on my idea can get a patent on that improvement. They can block me from using the improvement. I can block them from using the original invention. Thus we have an incentive to negotiate if either of us wants to bring the improved innovation to market. + +So where did software fit? Was it copyrightable writing or patentable invention? There are two issues here. The first is whether there should be any intellectual property rights over software at all. The basic case for that proposition is simple, a classic example of the public goods problem described in the first chapter. Software costs money to create, but is cheap to copy. When a youthful The Enclosure of Science and Technology Bill Gates wrote his 1976 letter to the wonderfully named Dr. Dobb’s Journal of Computer Calisthenics & Orthodontia, he put the point clearly. + +_1 Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all the bugs, documenting his product and distribute it for free? The fact is, no one besides us has invested a lot of money into hobby software. We have written 6800 BASIC, and are writing 8080 APL and 6800 APL, but there is very little incentive to make this software available to hobbyists. Most directly, the thing you do is theft.~{William Gates III, An Open Letter to Hobbyists, February 3, 1976, quoted in Wallace Wang, Steal This Computer Book 4.0: What They Won’t Tell You About the Internet (San Francisco: No Starch Press, 2006), 73.}~ + +He signed the letter “Bill Gates, General Partner, Micro-Soft.” The hyphen would disappear in time. The philosophy stuck around. + +Though there are quibbles about the facts in Gates’s letter—critics claim he himself did a lot of free riding on public domain code and government-funded computer time—his basic point is that software needs to be protected by (enforceable) property rights if we expect it to be effectively and sustainably produced. Some software developers disagree. But assuming one concedes the point for the sake of argument, there is a second question: should software be covered by copyright or patent, or some unidentified third option? In practice, software ended up being covered by both schemes, partly because of actions by Congress, which included several references to software in the Copyright Act, and partly as a result of decisions by the Copyright Office, the Patent and Trademark Office, and judges. One could copyright one’s code and also gain a patent over the “nonobvious,” novel, and useful innovations inside the software. + +At first, it was the use of copyright that stirred the most concern. As I explained in the last chapter, copyright seems to be built around an assumption of diverging innovation—the fountain or explosion of expressive activity. Different people in different situations who sit down to write a sonnet or a love story, it is presumed, will produce very different creations rather than being drawn to a single result. Thus strong rights over the resulting work are not supposed to inhibit future progress. I can find my own muse, my own path to immortality. Creative expression is presumed to be largely independent of the work of prior authors. Raw material is not needed. “Copyright is about sustaining the conditions of creativity that enable an individual to craft out of thin air an Appalachian Spring, a Sun Also Rises, a Citizen Kane.”~{Paul Goldstein, “Copyright,” Journal of the Copyright Society of the U.S.A. 38 (1991): 109–110.}~ + +There are lots of reasons to doubt that this vision of “creation out of nothing” works very well even in the arts, the traditional domain of copyright law. The story of Ray Charles’s “I Got a Woman” bears ample witness to those doubts. But whatever its merits or defects in the realm of the arts, the vision seems completely wrongheaded when it comes to software. Software solutions to practical problems do converge, and programmers definitely draw upon prior lines of code. Worse still, as I pointed out earlier, software tends to exhibit “network effects.” Unlike my choice of novel, my choice of word processing program is very strongly influenced, perhaps dominated, by the question of what program other people have chosen to buy. That means that even if a programmer could find a completely different way to write a word processing program, he has to be able to make it read the dominant program’s files, and mimic its features, if he is to attract any customers at all. That hardly sounds like completely divergent creation. + +Seeing that software failed to fit the Procrustean bed of copyright, many scholars presumed the process of forcing it into place would be catastrophic. They believed that, lacking patent’s high standards, copyright’s monopolies would proliferate widely. Copyright’s treatment of follow-on or “derivative” works would impede innovation, it was thought. The force of network effects would allow the copyright holder of whatever software became “the standard” to extract huge monopoly rents and prevent competing innovation for many years longer than the patent term. Users of programs would be locked in, unable to shift their documents, data, or acquired skills to a competing program. Doom and gloom abounded among copyright scholars, including many who shared Mr. Gates’s basic premise—that software should be covered by property rights. They simply believed that these were the wrong property rights to use. + +Copyright did indeed cause problems for software developers, though it is hard to judge whether those problems outweighed the economic benefits of encouraging software innovation, production, and distribution. But the negative effects of copyright were minimized by a remarkably prescient set of actions by courts and, to a much lesser extent, Congress, so that the worst scenarios did not come to pass. Courts interpreted the copyright over software very narrowly, so that it covered little beyond literal infringement. (Remember Jefferson’s point about the importance of being careful about the scope of a right.) They developed a complicated test to work out whether one program infringed the details of another. The details give law students headaches every year, but the effects were simple. If your software was similar to mine merely because it was performing the same function, or because I had picked the most efficient way to perform some task, or even because there was market demand for doing it that way, then none of those similarities counted for the purposes of infringement. Nor did material that was taken from the public domain. The result was that while someone who made literal copies of Windows Vista was clearly infringing copyright, the person who made a competing program generally would not be. + +In addition, courts interpreted the fair use doctrine to cover “decompilation”—which is basically taking apart someone else’s program so that you can understand it and compete with it. As part of the process, the decompiler had to make a copy of the program. If the law were read literally, decompilation would hardly seem to be a fair use. The decompiler makes a whole copy, for a commercial purpose, of a copyrighted work, precisely in order to cause harm to its market by offering a substitute good. But the courts took a broader view. The copy was a necessary part of the process of producing a competing product, rather than a piratical attempt to sell a copy of the same product. This limitation on copyright provided by fair use was needed in order to foster the innovation that copyright is supposed to encourage. This is a nice variation of the Sony Axiom from Chapter 4. + +These rulings and others like them meant that software was protected by copyright, as Mr. Gates wanted, but that the copyright did not give its owner the right to prevent functional imitation and competition. Is that enough? Clearly the network effects are real. Most of us use Windows and most of us use Microsoft Word, and one very big reason is because everyone else does. Optimists believe the lure of capturing this huge market will keep potential competitors hungry and monopolists scared. The lumbering dominant players will not become complacent about innovation or try to grab every morsel of monopoly rent, goes the argument. They still have to fear their raptor-like competitors lurking in the shadows. Perhaps. Or perhaps it also takes the consistent threat of antitrust enforcement. In any event, whether or not we hit the optimal point in protecting software with intellectual property rights, those rights certainly did not destroy the industry. It appeared that, even with convergent creativity and network effects, software could be crammed into the Procrustean bed of copyright without killing it off in the process. Indeed, to some, it seemed to fare very well. They would claim that the easy legal protection provided by copyright gave a nascent industry just enough protection to encourage the investment of time, talent, and dollars, while not prohibiting the next generation of companies from building on the innovations of the past. + +In addition, the interaction between copyright and software has produced some surprising results. There is a strong argument that it is the fact that software is copyrightable that has enabled the “commons-based creativity” of free and open source software. What does commons-based creativity mean? Basically, it is creativity that builds on an open resource available to all. An additional component of some definitions is that the results of the creativity must be fed back into the commons for all to use. Think of English. You can use English without license or fee, and you can innovate by producing new words, slang, or phrases without clearance from some Academie Anglaise. After you coin your term, it is in turn available to me to build upon or to use in my own sentences, novels, or jokes. And so the cycle continues. As the last chapter showed, for the entire history of musical creativity until the last forty years or so, the same had been true of at least a low level of musical borrowing. At the basic level of musical phrases, themes, snatches of melody, even chord structures, music was commons-based creativity. Property rights did not reach down into the atomic structure of music. They stayed at a higher level—prohibiting reproduction of complete works or copying of substantial and important chunks. So in some areas of both music and language, we had commons-based creativity because there were no property rights over the relevant level. The software commons is different. + +The creators of free and open source software were able to use the fact that software is copyrighted, and that the right attaches automatically upon creation and fixation, to set up new, distributed methods of innovation. For example, free and open source software under the General Public License—such as Linux—is a “commons” to which all are granted access. Anyone may use the software without any restrictions. They are guaranteed access to the human-readable “source code,” rather than just the inscrutable “machine code,” so that they can understand, tinker, and modify. Modifications can be distributed so long as the new creation is licensed under the open terms of the original. This creates a virtuous cycle: each addition builds on the commons and is returned to it. The copyright over the software was the “hook” that allowed software engineers to create a license that gave free access and the right to modify and required future programmers to keep offering those freedoms. Without the copyright, those features of the license would not have been enforceable. For example, someone could have modified the open program and released it without the source code—denying future users the right to understand and modify easily. To use an analogy beloved of free software enthusiasts, the hood of the car would be welded shut. Home repair, tinkering, customization, and redesign become practically impossible. + +Of course, if there were no copyright over software at all, software engineers would have other freedoms—even if not legally guaranteed open access to source code. Still, it was hard to deny that the extension of the property regime had—bizarrely, at first sight—actually enabled the creation of a continuing open commons. The tempting real estate analogy would be environmentalists using strong property rights over land to guarantee conservation and open access to a green space, where, without property rights, the space could be despoiled by all. But as I have pointed out earlier, while such analogies may help us, the differences between land and intellectual property demand that they be scrutinized very carefully. It is hard to overgraze an idea. + +So much for copyright. What about patents? U.S. patent law had drawn a firm line between patentable invention and unpatentable idea, formula, or algorithm. The mousetrap could be patented, but not the formula used to calculate the speed at which it would snap shut. Ideas, algorithms, and formulae were in the public domain—as were “business methods.” Or so we thought. + +The line between idea or algorithm on the one hand and patentable machine on the other looks nice and easy. But put that algorithm—that series of steps capable of being specified in the way described by the Turing machine—onto a computer, and things begin to look more complex. Say, for example, that algorithm was the process for converting miles into kilometers and vice versa. “Take the first number. If it is followed by the word miles, then multiply by 8/5. If it is followed by the word kilometers, multiply by 5/8 . . .” and so on. In the abstract, this is classic public domain stuff—no more patentable than E=mc2 or F=ma. What about when those steps are put onto the tape of the Turing machine, onto a program running on the hard drive of a computer? + +The Court of Appeals for the Federal Circuit (the United States’s leading patent court) seems to believe that computers can turn unpatentable ideas into patentable machines. In fact, in this conception, the computer sitting on your desk becomes multiple patentable machines—a word processing machine, an e-mail machine, a machine running the program to calculate the tensile strength of steel. I want to stress that the other bars to patentability remain. My example of mile-to-kilometer conversion would be patentable subject matter but, we hope, no patent would be granted because the algorithm is not novel and is obvious. (Sadly, the Patent and Trademark Office seems determined to undermine this hope by granting patents on the most mundane and obvious applications.) But the concern here is not limited to the idea that without a subject matter bar, too many obvious patents will be granted by an overworked and badly incentivized patent office. It is that the patent was supposed to be granted at the very end of a process of investigation and scientific and engineering innovation. The formulae, algorithms, and scientific discoveries on which the patented invention was based remained in the public domain for all to use. It was only when we got to the very end of the process, with a concrete innovation ready to go to market, that the patent was to be given. Yet the ability to couple the abstract algorithm with the concept of a Turing machine undermines this conception. Suddenly the patents are available at the very beginning of the process, even to people who are merely specifying—in the abstract—the idea of a computer running a particular series of algorithmic activities. + +The words “by means of a computer” are—in the eyes of the Federal Circuit—an incantation of magical power, able to transubstantiate the ideas and formulae of the public domain into private property. And, like the breaking of a minor taboo that presages a Victorian literary character’s slide into debauchery, once that first wall protecting the public domain was breached, the court found it easier and easier to breach still others. If one could turn an algorithm into a patentable machine simply by adding “by means of a computer,” then one could turn a business method into something patentable by specifying the organizational or information technology structure through which the business method is to be implemented. + +If you still remember the first chapters of this book, you might wonder why we would want to patent business methods. Intellectual property rights are supposed to be handed out only when necessary to produce incentives to supply some public good, incentives that otherwise would be lacking. Yet there are already plenty of incentives to come up with new business methods. (Greed and fear are the most obvious.) There is no evidence to suggest that we need a state-backed monopoly to encourage the development of new business methods. In fact, we want people to copy the businesses of others, lowering prices as a result. The process of copying business methods is called “competition” and it is the basis of a free-market economy. Yet patent law would prohibit it for twenty years. So why introduce patents? Brushing aside such minor objections with ease, the Court of Appeals for the Federal Circuit declared business methods to be patentable. Was this what Jefferson had in mind when he said “I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not”? I doubt it. + +It is commonplace for courts to look at the purpose of the law they are enforcing when seeking to understand what it means. In areas of regulation which are obviously instrumental—aimed at producing some particular result in the world—that approach is ubiquitous. In applying the antitrust laws, for example, courts have given meaning to the relatively vague words of the law by turning to economic analysis of the likely effects of different rules on different market structures. + +Patent law is as instrumental a structure as one could imagine. In the United States, for example, the constitutional authorization to Congress to pass patent and copyright legislation is very explicit that these rights are to be made with a purpose in view. Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” One might imagine that courts would try to interpret the patent and copyright laws with that purpose, and the Jefferson Warning about its constraints, firmly in mind. Yet utilitarian caution about extending monopolies is seldom to be found in the reasoning of our chief patent court. + +The difference is striking. Jefferson said that the job of those who administered the patent system was to see if a patent was “worth the embarrassment to the public” before granting it. The Constitution tells Congress to make only those patent laws that “promote the progress of science and useful arts.” One might imagine that this constitutional goal would guide courts in construing those same laws. Yet neither Jeffersonian ideals nor the constitutional text seem relevant to our chief patent court when interpreting statutory subject matter. Anything under the sun made by man is patentable subject matter, and there’s an end to it. The case that announced the rule on business methods involved a patent on the process of keeping accounts in a “hub-and-spoke” mutual fund—which included multiplying all of the stock holdings of each fund in a family of funds by the respective current share price to get total fund value and then dividing by the number of mutual fund shares that each customer actually holds to find the balance in their accounts. As my son observed, “I couldn’t do that until nearly the end of third grade!”~{State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368, 1373 (Fed. Cir. 1998).}~ + +In theory of course, if the patent is not novel or is obvious, it will still be refused. The Supreme Court recently held that the Court of Appeals for the Federal Circuit has made “nonobvious” too easy a standard to meet.~{KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) [Ed. note: originally published as 550 U.S. ___ (2007), 127 S. Ct. 1727 (2007); citation updated].}~ It is unclear, however, whether that judgment will produce concrete effects on actual practices of patent grants and litigation. The Patent and Trademark Office puts pressure on examiners to issue patents, and it is very expensive to challenge those that are granted. Better, where possible, to rule out certain subject matter in the first place. Tempted in part by its flirtation with the “idea made machine” in the context of a computer, the Court of Appeals for the Federal Circuit could not bring itself to do so. Where copyright law evolved to wall off and minimize the dangers of extending protection over software, patent law actually extended the idea behind software patents to make patentable any thought process that might produce a useful result. Once breached, the walls protecting the public domain in patent law show a disturbing tendency to erode at an increasing rate. + +To sum up, the conceptual possibilities presented to copyright and patent law by the idea of a Turing machine were fascinating. Should we extend copyright or patent to cover the new technology? The answer was “we will extend both!” Yet the results of the extension were complex and unexpected in ways that we will have to understand if we want to go beyond the simple but important injunctions of Jefferson and Macaulay. Who would have predicted that software copyrights could be used to create a self-perpetuating commons as well as a monopoly over operating systems, or that judges would talk knowingly of network effects in curtailing the scope of coverage? Who would have predicted that patents would be extended not only to basic algorithms implemented by a computer, but to methods of business themselves (truly a strange return to legalized business monopolies for a country whose founders viewed them as one of the greatest evils that could be borne)? + +2~ Synthetic Biology + +If you are a reader of Science, PLoS Biology, or Nature, you will have noticed some attractive and bizarre photographs recently. A field of bacteria that form themselves into bull’s-eyes and polka dots. A dim photograph of a woman’s face “taken” by bacteria that have been programmed to be sensitive to light. You may also have read about more inspiring, if less photogenic, accomplishments—for example, the group of scientists who managed to program bacteria to produce artemesinin, a scarce natural remedy for malaria derived from wormwood. Poking deeper into these stories, you would have found the phrase “synthetic biology” repeated again and again, though a precise definition would have eluded you. + +What is “synthetic biology”? For some it is simply that the product or process involves biological materials not found in nature. Good old-fashioned biotechnology would qualify. One of the first biotechnology patent cases, Diamond v. Chakrabarty, involved some bacteria which Dr. Chakrabarty had engineered to eat oil slicks—not their natural foodstuff.~{Diamond v. Chakrabarty, 447 U.S. 303 (1980).}~ The Supreme Court noted that the bacteria were not found in nature and found them to be patentable, though alive. According to the simplest definition, Dr. Chakrabarty’s process would count as synthetic biology, though this example antedates the common use of the term by two decades. For other scientists, it is the completely synthetic quality of the biology involved that marks the edge of the discipline. The DNA we are familiar with, for example, has four “base pairs”—A, C, G, and T. Scientists have developed genetic alphabets that involve twelve base pairs. Not only is the result not found in nature, but the very language in which it is expressed is entirely new and artificial. + +I want to focus on a third conception of synthetic biology: the idea of turning biotechnology from an artisanal process of one-off creations, developed with customized techniques, to a true engineering discipline, using processes and parts that are as standardized and as well understood as valves, screws, capacitors, or resistors. The electrical engineer told to build a circuit does not go out and invent her own switches or capacitors. She can build a circuit using off-the-shelf components whose performance is expressed using standard measurements. This is the dream of one group of synthetic biologists: that biological engineering truly become engineering, with biological black boxes that perform all of the standard functions of electrical or mechanical engineering—measuring flow, reacting to a high signal by giving out a low signal, or vice versa, starting or terminating a sequence, connecting the energy of one process to another, and so on. + +Of course an engineer understands the principle behind a ratchet, or a valve, but he does not have to go through the process of thinking “as part of this design, I will have to create a thing that lets stuff flow through one way and not the other.” The valve is the mechanical unit that stands for that thought, a concept reified in standardized material form which does not need to be taken apart and parsed each time it is used. By contrast, the synthetic biologists claim, much of current biotechnological experimentation operates the way a seventeenth-century artisan did. Think of the gunsmith making beautiful one-off classics for his aristocratic patrons, without standardized calibers, parts, or even standard-gauge springs or screws. The process produces the gun, but it does not use, or produce, standard parts that can also be used by the next gunsmith. + +Is this portrayal of biology correct? Does it involve some hyping of the new hot field, some denigration of the older techniques? I would be shocked, shocked, to find there was hype involved in the scientific or academic enterprise. But whatever the degree to which the novelty of this process is being subtly inflated, it is hard to avoid being impressed by the projects that this group of synthetic biologists has undertaken. The MIT Registry of Standard Biological Parts, for example, has exactly the goal I have just described. + +_1 The development of well-specified, standard, and interchangeable biological parts is a critical step towards the design and construction of integrated biological systems. The MIT Registry of Standard Biological Parts supports this goal by recording and indexing biological parts that are currently being built and offering synthesis and assembly services to construct new parts, devices, and systems. . . . In the summer of 2004, the Registry contained about 100 basic parts such as operators, protein coding regions, and transcriptional terminators, and devices such as logic gates built from these basic parts. Today the number of parts has increased to about 700 available parts and 2000 defined parts. The Registry believes in the idea that a standard biological part should be well specified and able to be paired with other parts into subassemblies and whole systems. Once the parameters of these parts are determined and standardized, simulation and design of genetic systems will become easier and more reliable. The parts in the Registry are not simply segments of DNA, they are functional units.~{ http://parts.mit.edu/registry/index.php/Help:About_the_Registry. }~ + +Using the Registry, a group of MIT scientists organizes an annual contest called iGEM, the International Genetically Engineered Machine competition. Students can draw from the standard parts that the Registry contains, and perhaps contribute their own creations back to it. What kinds of “genetically engineered machines” do they build? + +_1 A team of eight undergraduates from the University of Ljubljana in Slovenia—cheering and leaping onto MIT’s Kresge Auditorium stage in green team T-shirts—won the grand prize earlier this month at the International Genetically Engineered Machine (iGEM) competition at MIT. The group—which received an engraved award in the shape of a large aluminum Lego piece—explored a way to use engineered cells to intercept the body’s excessive response to infection, which can lead to a fatal condition called sepsis. The goal of the 380 students on 35 university teams from around the world was to build biological systems the way a contractor would build a house—with a toolkit of standard parts. iGEM participants spent the summer immersed in the growing field of synthetic biology, creating simple systems from interchangeable parts that operate in living cells. Biology, once thought too complicated to be engineered like a clock, computer or microwave oven, has proven to be open to manipulation at the genetic level. The new creations are engineered from snippets of DNA, the molecules that run living cells.~{“Gene Machine: Cells Engineered to Prevent Sepsis Win Synthetic Biology Competition,” Science Daily (November 15, 2006), available at http://www.sciencedaily.com/releases/2006/11/061114193826.htm. }~ + +Other iGEM entries have included E. coli bacteria that had been engineered to smell like wintergreen while they were growing and dividing and like bananas when they were finished, a biologically engineered detector that would change color when exposed to unhealthy levels of arsenic in drinking water, a method of programming mouse stem cells to “differentiate” into more specialized cells on command, and the mat of picture-taking bacteria I mentioned earlier. + +No matter how laudable the arsenic detector or the experimental technique dealing with sepsis, or how cool the idea of banana-scented, picture-taking bacteria, this kind of enterprise will cause some of you to shudder. Professor Drew Endy, one of the pioneers in this field, believes that part of that reaction stems from simple novelty. “A lot of people who were scaring folks in 1975 now have Nobel prizes.”~{ http://web.mit.edu/newsoffice/2006/igem.html. }~ But even if inchoate, the concerns that synthetic biology arouses stem from more than novelty. There is a deep-seated fear that if we see the natural world of biology as merely another system that we can routinely engineer, we will have extended our technocratic methods into a realm that was only intermittently subject to them in a way that threatens both our structure of self-understanding and our ecosystem. + +To this, the synthetic biologists respond that we are already engineering nature. In their view, planned, structured, and rationalized genetic engineering poses fewer dangers than poorly understood interventions to produce some specific result in comparative ignorance of the processes we are employing to do so. If the “code” is transparent, subject to review by a peer community, and based on known parts and structures, each identified by a standard genetic “barcode,” then the chance of detecting problems and solving them is higher. And while the dangers are real and not to be minimized, the potential benefits—the lives saved because the scarce antimalarial drug can now be manufactured by energetic E. coli or because a cheap test can demonstrate arsenic contamination in a village well—are not to be minimized either. + +I first became aware of synthetic biology when a number of the scientists working on the Registry of Standard Biological Parts contacted me and my colleague Arti Rai. They did not use these exact words, but their question boiled down to “how does synthetic biology fare in intellectual property’s categories, and how can we keep the basics of the science open for all to use?” As you can tell from this book, I find intellectual property fascinating—lamentably so perhaps. Nevertheless, I was depressed by the idea that scientists would have to spend their valuable time trying to work out how to save their discipline from being messed up by the law. Surely it would be better to have them doing, well, science? + +They have cause for concern. As I mentioned at the beginning of this chapter, synthetic biology shares characteristics of both software and biotechnology. Remember the focus on reducing functions to black boxes. Synthetic biologists are looking for the biological equivalents of switches, valves, and inverters. The more abstractly these are described, the more they come to resemble simple algebraic expressions, replete with “if, then” statements and instructions that resolve to “if x, then y, if not x, then z.” + +If this sounds reminiscent of the discussion of the Turing machine, it should. When the broad rules for software and business methods were enunciated by the federal courts, software was already a developed industry. Even though the rules would have allowed the equivalent of patenting the alphabet, the very maturity of the field minimized the disruption such patents could cause. Of course “prior art” was not always written down. Even when it was recorded, it was sometimes badly handled by the examiners and the courts, partly because they set a very undemanding standard for “ordinary expertise” in the art. Nevertheless, there was still a lot of prior experience and it rendered some of the more basic claims incredible. That is not true in the synthetic biology field. + +Consider a recent article in Nature, “A universal RNAi-based logic evaluator that operates in mammalian cells.”~{Keller Rinaudo et al., “A universal RNAi-based logic evaluator that operates in mammalian cells,” Nature Biotechnology 25 (2007): 795–801.}~ The scientists describe their task in terms that should be familiar. “A molecular automaton is an engineered molecular system coupled to a (bio)molecular environment by ‘flow of incoming messages and the actions of outgoing messages,’ where the incoming messages are processed by an ‘intermediate set of elements,’ that is, a computer.” The article goes on to describe some of the key elements of so-called “Boolean algebra”—“or,” “and,” “not,” and so on—implemented in living mammalian cells. + +These inscriptions of Boolean algebra in cells and DNA sequences can be patented. The U.S. Department of Health and Human Services, for example, owns patent number 6,774,222: + +_1 This invention relates to novel molecular constructs that act as various logic elements, i.e., gates and flip-flops. . . . The basic functional unit of the construct comprises a nucleic acid having at least two protein binding sites that cannot be simultaneously occupied by their cognate binding protein. This basic unit can be assembled in any number of formats providing molecular constructs that act like traditional digital logic elements (flips-flops, gates, inverters, etc.). + +My colleagues Arti Rai and Sapna Kumar have performed a patent search and found many more patents of similar breadth.~{Sapna Kumar and Arti Rai, “Synthetic Biology: The Intellectual Property Puzzle,” Texas Law Review 85 (2007): 1745–1768.}~ + +What is the concern? After all, this is cutting-edge science. These seem like novel, nonobvious inventions with considerable utility. The concern is that the change in the rules over patentable subject matter, coupled with the Patent and Trademark Office’s handling of both software and biotechnology, will come together so that the patent is not over some particular biological circuit, but, rather, over Boolean algebra itself as implemented by any biotechnological means. It would be as if, right at the beginning of the computer age, we had issued patents over formal logic in software—not over a particular computer design, but over the idea of a computer or a binary circuit itself. + +“By means of a computer” was the magic phrase that caused the walls around the public domain of algorithms and ideas to crumble. Will “by means of a biological circuit” do the same? And—to repeat the key point—unlike computer science, biotechnology is developing after the hypertrophy of our intellectual property system. We do not have the immune system provided by the established practices and norms, the “prior art,” even the community expectations that protected software from the worst effects of patents over the building blocks of science. + +Following the example of software, the founders of the MIT Registry of Standard Biological Parts had the idea of protecting their discipline from overly expansive intellectual property claims by turning those rights against themselves. Free and open source software developers have created a “commons” using the copyright over the code to impose a license on their software, one that requires subsequent developers to keep the source open and to give improvements back to the software commons—a virtuous cycle. Could the Registry of Standard Biological Parts do the same thing? The software commons rests on a license. But, as I pointed out in the last section, the license depends on an underlying property right. It is because I have automatic copyright over my code that I can tell you “use it according to these terms or you will be violating my copyright.” Is there a copyright over the products of synthetic biology? To create one we would have to take the extension of copyright that was required to reach software and stretch it even further. Bill Gates might argue for intellectual property rights over software using the logic of his article in Dr. Dobb’s Journal. Will the argument for copyrights over synthetic biological coding be “I need the property right so I can create a commons”? + +In practice, I think the answer is, and should be, no. Of course, one could think of this as just another type of coding, making expressive choices in a code of A’s, C’s, G’s, and T’s, just as a programmer does in Java or C++. Yet, software was already a stretch for copyright law. Synthetic biology strikes me as a subject matter that the courts, Congress, and the Copyright Office are unlikely to want to cram into copyright’s already distorted outlines—particularly given the obvious availability of patent rights. As a matter of conceptual intuition, I think they will see biological subject matter as harder to fit into the categories of original expressive writing. On one level, yes, it is all information, but, on another level, the idea of programming with gene sequences will probably raise hackles that the idea of coding inside a programming language never would. As a normative matter, I think it would be a poor choice to apply copyright to the products of synthetic biology. Attempting to produce a particular open commons, one might enable the kind of hundred-year monopolies over functional objects that the critics of software copyright initially feared. + +If one wishes to keep the basic ideas and techniques of synthetic biology open for subsequent innovators, there are alternatives to the idea of a synthetic biology open source license. The Registry of Standard Biological Parts or the BioBricks Foundation can simply put all their work into the public domain immediately. (This, indeed, is what they are currently doing.) Such a scheme lacks one key feature of open source software: the right to force subsequent innovators to release their code back into the commons. Yet it would make subsequent patents on the material impossible, because it had already been published. + +Regardless of the decisions made about the future of synthetic biology, I think its story—coupled to that of software and biotechnology more generally—presents us with an important lesson. I started the chapter with the metaphor of Procrustes’s bed. But in the case of software and biotechnology, both the bed—the categories of copyright and patent—and its inhabitants—the new technologies—were stretched. Cracks formed in the boundaries that were supposed to prevent copyright from being applied to functional articles, to prevent patents extending to cover ideas, algorithms, and business methods. + +Until this point, though the science would have been strange to Jefferson or his contemporaries, the underlying issue would have been familiar. The free-trade, Scottish Enlightenment thinkers of the eighteenth and nineteenth centuries would have scoffed at the idea that business methods or algorithms could be patented, let alone that one could patent the “or,” “if-then,” and “not” functions of Boolean algebra as implemented by a biological mechanism. The response, presumably, is to fine tune our patent standards—to patent the mousetrap and the corkscrew, not the notion of catching mice or opening bottles by mechanical means. Still less should we allow the patenting of algebra. These are fine points. Later scholarship has added formulae, data, and historical analysis to back up Jefferson’s concerns, while never surpassing his prose. As I said at the beginning of the book, if we were to print out the Jefferson Warning and slip it into the shirt pocket of every legislator and regulator, our policy would be remarkably improved. + +But it is here that the story takes a new turn, something that neither Jefferson nor the philosophers of the Scottish Enlightenment had thought of, something that goes beyond their cautions not to confuse intellectual property with physical property, to keep its boundaries, scope, and term as small as possible while still encouraging the desired innovation. + +Think of the reaction of the synthetic biologists at MIT. They feared that the basic building blocks of their new discipline could be locked up, slowing the progress of science and research by inserting intellectual property rights at the wrong point in the research cycle. To solve the problem they were led seriously to consider claiming copyright over the products of synthetic biology—to fight overly broad patent rights with a privately constructed copyright commons, to ride the process of legal expansion and turn it to their own ends. As I pointed out earlier, I think the tactic would not fare well in this particular case. But it is an example of a new move in the debate over intellectual property, a new tactic: the attempt to create a privately constructed commons where the public domain created by the state does not give you the freedom that you believe creativity needs in order to thrive. It is to that tactic, and the distributed creativity that it enables, that I will turn to now. + +2~ Chapter 7: Further Reading + +As the introduction to this chapter suggests, the intersection of intellectual property law and science and technology has been attracting considerable attention from scholars recently, some of it dismayed. The difficulty—and this is why I chose the case-study method for this chapter—is that there are multiple sets of concerns and they resist easy summary. + +The first set of concerns is that the granting of intellectual property rights far “upstream”—that is very close to basic science—is impeding the process of science and technology. In addition, scholars have argued that the sheer volume of intellectual property claims will produce an anti-commons effect or patent thicket. Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998): 698–701. The argument here is that the closer one is to basic research the stronger the case is for leaving the information untouched by property rights—allowing all to draw on it and develop “downstream” innovations, which can then be covered by intellectual property rights. In practice, two concerns are often alluded to: the fact that much of the basic research is state funded and conducted in nonprofit universities and the belief that the transaction costs of licensing will inhibit research or concentrate it in a few hands. Research on genes indicating a propensity to breast cancer is a frequently cited example of the latter problem. Fabienne Orsi and Benjamin Coriat, “Are ‘Strong Patents’ Beneficial to Innovative Activities? Lessons from the Genetic Testing for Breast Cancer Controversies,” Industrial and Corporate Change 14 (2005): 1205–1221. But here, too, anecdote outweighs evidence. Timothy Caulfield, Robert M. Cook-Deegan, F. Scott Kieff, and John P. Walsh, “Evidence and Anecdotes: An Analysis of Human Gene Patenting Controversies,” Nature Biotechnology 24 (2006): 1091–1094. On the other side of this debate is the argument that having intellectual property rights, even on state-funded university research, will facilitate commercialization—allowing the commercial investor to know that it will acquire sufficient rights to exclude others from the innovation. This is the premise behind “Bayh-Dole,” the act (P.L. 96-517, Patent and Trademark Act Amendments of 1980; codified in 35 U.S.C. § 200–212 and implemented by 37 C.F.R. 401) that sets up the framework for technology transfer from state funded university research. + +To date, the evidence for the anti-commons effect inside academia has been equivocal, at best. Walsh, Cohen, and Arora found no such effect—but one main reason for the absence of problems appeared to be that scientists were simply flouting the law (or were ignorant of it). John P. Walsh, Ashish Arora, and Wesley M. Cohen, “Effects of Research Tool Patents and Licensing on Biomedical Innovation,” in Patents in the Knowledge-Based Economy, ed. Wesley M. Cohen and Stephen A. Merrill (Washington D.C.: National Academies Press, 2003), 285–340. I would question whether a research system based on massive law-breaking is sustainable, particularly after the U.S. Court of Appeals for the Federal Circuit clarified for us that there effectively is no academic research exemption in U.S. patent law. Madey v. Duke University, 307 F.3d 1351 (Fed. Cir. 2002). The National Research Council’s committee on the subject found few problems now but possible cause for concern in the future. Committee on Intellectual Property Rights in Genomic and Protein Research and Innovation, National Research Council, Reaping the Benefits of Genomic and Proteomic Research: Intellectual Property Rights, Innovation, and Public Health (Washington D.C.: National Academy Press, 2005). A study by the American Academy for the Advancement of Science also reported few problems, though a closer reading revealed that licensing produced delays in research—some of them considerable—but did not cause it to be abandoned. The effects were greatest on industry scientists. American Association for the Advancement of Science, Directorate for Science and Policy Programs, International Intellectual Property Experiences: A Report of Four Countries (Washington, D.C.: AAAS, 2007), available at http://sippi.aaas.org/Pubs/SIPPI_Four_Country_Report.pdf. Fiona Murray and Scott Stern, “Do Formal Intellectual Property Rights Hinder the Free Flow of Scientific Knowledge? An Empirical Test of the Anti-Commons Hypothesis,” Journal of Economic Behavior & Organization 63 (2007): 648–687, found a definite but modest anti-commons effect, restricting further research and publication on patented materials. Similar concerns have been raised about access to scientific data. J. H. Reichman and Paul Uhlir, “A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment,” Law and Contemporary Problems 66 (2003): 315–462. + +What about the opposite question? Are we getting benefits from the process of increasing the use of intellectual property rights in basic university research? The best study of the effects of the current university technology transfer process found little definitive evidence of net benefits and some cause for concern that the traditional role of universities in freely supplying knowledge is being undermined. David Mowery, Richard Nelson, Bhaven Sampat, and Arvids Ziedonis, Ivory Tower and Industrial Innovation: University-Industry Technology Transfer Before and After the Bayh-Dole Act (Palo Alto, Calif.: Stanford Business Press, 2004). + +Beyond the questions about the effects of upstream intellectual property rights on basic research lay the much harder questions about the effects of intellectual property rights on the development of technologies. Here there is much evidence that decisions about patent scope are vital and, as Robert Merges and Richard Nelson reveal, that poor decisions can hamper or cripple the development of disruptive technologies. Robert Merges and Richard R. Nelson, “On the Complex Economics of Patent Scope,” Columbia Law Review 90 (1990): 839–916; Suzanne Scotchmer, “Standing on the Shoulders of Giants: Cumulative Research and the Patent Law,” Journal of Economic Perspectives 5 (1991): 29–41. The fear, highlighted in this chapter, is that poor decisions about patent scope and subject matter can inhibit technological change. On the subject of that fear, there is much more evidence. James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (Princeton: N.J.: Princeton University Press, 2008); and Adam Jaffe and Josh Lerner, Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What To Do About It (Princeton, N.J.: Princeton University Press, 2004). + +1~ Chapter 8: A Creative Commons + +If you go to the familiar Google search page and click the intimidating link marked “advanced search,” you come to a page that gives you more fine-grained control over the framing of your query. Nestled among the choices that allow you to pick your desired language, or exclude raunchy content, is an option that says “usage rights.” Click “free to use or share” and then search for “physics textbook” and you can download a 1,200-page physics textbook, copy it, or even print it out and hand it to your students. Search for “Down and Out in the Magic Kingdom” and you will find Cory Doctorow’s fabulous science fiction novel, online, in full, for free. His other novels are there too—with the willing connivance of his commercial publisher. Search for “David Byrne, My Fair Lady” and you will be able to download Byrne’s song and make copies for your friends. You’ll find songs from Gilberto Gil and the Beastie Boys on the same page. No need to pay iTunes or worry about breaking the law. + +Go to the “advanced” page on Flickr, the popular photo sharing site, and you will find a similar choice marked “Creative Commons License.” Check that box and then search for “Duke Chapel” and you will get a selection of beautiful photos of the lovely piece of faux Gothic architecture that sits about three hundred yards from the office where I am writing these words. You can copy those photos, and 66 million others on different subjects, share them with your friends, print them for your wall, and, in some cases, even use them commercially. The same basic tools can be found on a range of specialized search engines with names like OWL Music Search, BlipTV, SpinExpress, and OERCommons. Searching those sites, or just sticking with the advanced options on Google or Yahoo, will get you courses in music theory, moral philosophy, and C++ programming from famous universities; a full-length movie called Teach by Oscar-winning director Davis Guggenheim; and free architectural drawings that can be used to build low-cost housing. At the Wellcome Library, you will find two thousand years of medical images that can be shared freely. Searching for “skeleton” is particularly fun. You can even go to your favorite search engine, type in the title of this book, find a site that will allow you to download it, and send the PDF to a hundred friends, warmly anticipating their rapturous enjoyment. (Better ask them first.) + +All this copying and sharing and printing sounds illegal, but it is not (at least if you went through the steps I described). And the things you can do with this content do not stop with simply reproducing it, printing it on paper, or sending it by e-mail. Much of it can be changed, customized, remixed—you could rewrite the module of the class and insert your own illustrations, animate the graphs showing calculus in action, morph the photo into something new. If you search for a musician with the unpromising name “Brad Sucks,” you will find a Web site bearing the modest subtitle “A one man band with no fans.” Brad, it turns out, does not suck and has many fans. What makes him particularly interesting is that he allows those fans, or anyone else for that matter, to remix his music and post their creations online. I am particularly fond of the Matterovermind remix of “Making Me Nervous,” but it may not be to your taste. Go to a site called ccMixter and you will find that musicians, famous and obscure, are inviting you to sample and remix their music. Or search Google for Colin Mutchler and listen to a haunting song called “My Life Changed.” Mr. Mutchler and a violinist called Cora Beth Bridges whom he had never met created that song together. He posted a song called “My Life” online, giving anyone the freedom to add to it, and she did—“My Life.” Changed. + +On December 15, 2002, in San Francisco, a charitable organization called Creative Commons was launched. (Full disclosure: I have been a proud board member of Creative Commons since its creation.) Creative Commons was the brainchild of Larry Lessig, Hal Abelson, and Eric Eldred. All the works I have just described—and this book itself—are under Creative Commons licenses. The authors and creators of those works have chosen to share it with the world, with you, under generous terms, while reserving certain rights for themselves. They may have allowed you to copy it, but not to alter it—to make derivative works. Or they may have allowed you to use it as you wish, so long as you do so noncommercially. Or they may have given you complete freedom, provided only that you attribute them as the owner of the work. There are a few simple choices and a limited menu of permutations. + +What makes these licenses unusual is that they can be read by two groups that normal licenses exclude—human beings (rather than just lawyers) and computers. The textbooks, photos, films, and songs have a tasteful little emblem on them marked with a “cc” which, if you click on it, links to a “Commons Deed,” a simple one-page explanation of the freedoms you have. There are even icons—a dollar with a slash through it, for example—that make things even clearer. Better still, the reason the search engines could find this material is that the licenses also “tell” search engines exactly what freedoms have been given. Simple “metadata” (a fancy word for tags that computers can read) mark the material with its particular level of freedoms. This is not digital rights management. The license will not try to control your computer, install itself on your hard drive, or break your TV. It is just an expression of the terms under which the author has chosen to release the work. That means that if you search Google or Flickr for “works I am free to share, even commercially,” you know you can go into business selling those textbooks, or printing those photos on mugs and T-shirts, so long as you give the author attribution. If you search for “show me works I can build on,” you know you are allowed to make what copyright lawyers call “derivative works.” + +The idea behind Creative Commons was simple. As I pointed out in the first chapter, copyright adheres automatically on “fixation.” As soon as you lift the pen from the paper, click the shutter, or save the file, the work is copyrighted. No formalities. No need even to use the little symbol ©. Once copyrighted, the work is protected by the full might of the legal system. And the legal system’s default setting is that “all rights are reserved” to the author, which means effectively that anyone but the author is forbidden to copy, adapt, or publicly perform the work. This might have been a fine rule for a world in which there were high barriers to publication. The material that was not published was theoretically under an “all rights reserved” regime, but who cared? It was practically inaccessible anyway. After the development of the World Wide Web, all that had changed. Suddenly people and institutions, millions upon millions of them, were putting content online—blogs, photo sites, videologs, podcasts, course materials. It was all just up there. + +But what could you do with it? You could read it, or look at it, or play it presumably—otherwise why had the author put it up? But could you copy it? Put it on your own site? Include it in a manual used by the whole school district? E-mail it to someone? Translate it into your own language? Quote beyond the boundaries of fair use? Adapt for your own purposes? Take the song and use it for your video? Of course, if you really wanted the work a lot, you could try to contact the author—not always easy. And one by one, we could all contact each other and ask for particular types of permissions for use. If the use was large enough or widespread enough, perhaps we would even think that an individual contract was necessary. Lawyers could be hired and terms hashed out. + +All this would be fine if the author wished to retain all the rights that copyright gives and grant them only individually, for pay, with lawyers in the room. But what about the authors, the millions upon millions of writers, and photographers and musicians, and filmmakers and bloggers and scholars, who very much want to share their work? The Cora Beth Bridges of the world are never going to write individual letters to the Colin Mutchlers of the world asking for permission to make a derivative work out of “My Life.” The person who translated my articles into Spanish or Mandarin, or the people who repost them on their Web sites, or include them in their anthologies might have asked permission if I had not granted it in advance. I doubt though that I would have been contacted by the very talented person who took images from a comic book about fair use that I co-wrote and mashed them up with words from a book by Larry Lessig, and some really nice music from someone none of us had ever met. Without some easy way to give permission in advance, and to do so in a way that human beings and computers, as well as lawyers, can understand, those collaborations will never happen, though all the parties would be delighted if they did. These are losses from “failed sharing”—every bit as real as losses from unauthorized copying, but much less in the public eye. + + +Creative Commons was conceived as a private “hack” to produce a more fine-tuned copyright structure, to replace “all rights reserved” with “some rights reserved” for those who wished to do so. It tried to do for culture what the General Public License had done for software. It made use of the same technologies that had created the issue: the technologies that made fixation of expressive content and its distribution to the world something that people, as well as large concentrations of capital, could do. As a result, it was able to attract a surprising range of support—Jack Valenti of the Motion Picture Association of America and Hillary Rosen of the Recording Industry Association of America, as well as John Perry Barlow of the Grateful Dead, whose attitude toward intellectual property was distinctly less favorable. Why could they all agree? These licenses were not a choice forced on anyone. The author was choosing what to share and under what terms. But that sharing created something different, something new. It was more than a series of isolated actions. The result was the creation of a global “commons” of material that was open to all, provided they adhered to the terms of the licenses. Suddenly it was possible to think of creating a work entirely out of Creative Commons-licensed content—text, photos, movies, music. Your coursebook on music theory, or your documentary on the New York skyline, could combine your own original material with high-quality text, illustrations, photos, video, and music created by strangers. One could imagine entire fields—of open educational content or of open music—in which creators could work without keeping one eye nervously on legal threats or permissions. + +From one perspective, Creative Commons looks like a simple device for enabling exercise of authorial control, remarkable only for the extremely large number of authors making that choice and the simplicity with which they can do so. From another, it can be seen as re-creating, by private choice and automated licenses, the world of creativity before law had permeated to the finest, most atomic level of science and culture—the world of folk music or 1950s jazz, of jokes and slang and recipes, of Ray Charles’s “rewording” of gospel songs, or of Isaac Newton describing himself as “standing on the shoulders of giants” (and not having to pay them royalties). Remember, that is not a world without intellectual property. The cookbook might be copyrighted even if the recipe was not. Folk music makes it to the popular scene and is sold as a copyrighted product. The jazz musician “freezes” a particular version of the improvisation on a communally shared set of musical motifs, records it, and sometimes even claims ownership of it. Newton himself was famously touchy about precedence and attribution, even if not about legal ownership of his ideas. But it is a world in which creativity and innovation proceed on the basis of an extremely large “commons” of material into which it was never imagined that property rights could permeate. + +For many of us, Creative Commons was conceived of as a second-best solution created by private agreement because the best solution could not be obtained through public law. The best solution would be a return of the formality requirement—a requirement that one at least write the words “James Boyle copyright 2008,” for example, in order to get more than 100 years of legal protection backed by “strict liability” and federal criminal law. Those who did not wish to have the legal monopoly could omit the phrase and the work would pass into the public domain, with a period of time during which the author could claim copyright retrospectively if the phrase was omitted by accident. The default position would become freedom and the dead weight losses caused by giving legal monopolies to those who had not asked for them, and did not want them, would disappear. To return to the words of Justice Brandeis that I quoted at the beginning of the book: + +_1 The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. + +Brandeis echoes the Jeffersonian preference for a norm of freedom, with narrowly constrained exceptions only when necessary. That preference means that the commons of which I spoke is a relatively large one—property rights are the exception, not the norm. Of course, many of those who use Creative Commons licenses might disagree with that policy preference and with every idea in this book. They may worship the DMCA or just want a way to get their song or their article out there while retaining some measure of control. That does not matter. The licenses are agnostic. Like a land trust which has a local pro-growth industrialist and a local environmentalist on its board, they permit us to come to a restricted agreement on goals (“make sure this space is available to the public”) even when underlying ideologies differ. They do this using those most conservative of tools—property rights and licenses. And yet, if our vision of property is “sole and despotic dominion,” these licenses have created something very different—a commons has been made out of private and exclusive rights. + +My point here is that Creative Commons licenses or the tools of free and open source software—to which I will turn in a moment—represent something more than merely a second-best solution to a poorly chosen rule. They represent a visible example of a type of creativity, of innovation, which has been around for a very long time, but which has reached new salience on the Internet—distributed creativity based around a shared commons of material. + +2~ Free and Open Software + +In 2007, Clay Shirky, an incisive commentator on networked culture, gave a speech which anyone but a Net aficionado might have found simultaneously romantic and impenetrable. He started by telling the story of a Shinto shrine that has been painstakingly rebuilt to exactly the same plan many times over its 1,300-year life—and which was denied certification as a historic building as a result. Shirky’s point? What was remarkable was not the building. It was a community that would continue to build and rebuild the thing for more than a millennium. + +From there, Shirky shifted to a discussion of his attempt to get AT&/T to adopt the high-level programming language Perl—which is released as free and open source software under the General Public License. From its initial creation by Larry Wall in 1987, Perl has been adapted, modified, and developed by an extraordinary range of talented programmers, becoming more powerful and flexible in the process. As Shirky recounts the story, when the AT&T representatives asked “where do you get your support?” Shirky responded, “ ‘we get our support from a community’—which to them sounded a bit like ‘we get our Thursdays from a banana.’ ” Shirky concluded the speech thus: + +_1 We have always loved one another. We’re human. It’s something we’re good at. But up until recently, the radius and half-life of that affection has been quite limited. With love alone, you can plan a birthday party. Add coordinating tools and you can write an operating system. In the past, we would do little things for love, but big things required money. Now we can do big things for love.~{Clay Shirky, “Supernova Talk: The Internet Runs on Love,” available at http://www.shirky.com/herecomeseverybody/2008/02/supernova-talk-the-internet-runs-on-love.html; see also Clay Shirky, Here Comes Everybody: The Power of Organizing Without Organizations (New York: Penguin Press, 2008).}~ + +There are a few people out there for whom “operating systems” and “love” could plausibly coexist in a sentence not constructed by an infinite number of monkeys. For most though, the question is, what could he possibly have meant? + +The arguments in this book so far have taken as a given the incentives and collective action problems to which intellectual property is a response. Think of Chapter 1 and the economic explanation of “public goods.” The fact that it is expensive to do the research to find the right drug, but cheap to manufacture it once it is identified provides a reason to create a legal right of exclusion. In those realms where the innovation would not have happened anyway, the legal right of exclusion gives a power to price above cost, which in turn gives incentives to creators and distributors. So goes the theory. I have discussed the extent to which the logic of enclosure works for the commons of the mind as well as it did for the arable commons, taking into account the effects of an information society and a global Internet. What I have not done is asked whether a global network actually transforms some of our assumptions about how creation happens in a way that reshapes the debate about the need for incentives, at least in certain areas. This, however, is exactly the question that needs to be asked. + +For anyone interested in the way that networks can enable new collaborative methods of production, the free software movement, and the broader but less political movement that goes under the name of open source software, provide interesting case studies.~{See Glyn Moody, Rebel Code: Linux and the Open Source Revolution (Cambridge, Mass.: Perseus Pub., 2001); Peter Wayner, Free for All: How Linux and the Free Software Movement Undercut the High-Tech Titans (New York: HarperBusiness, 2000); Eben Moglen, “Anarchism Triumphant: Free Software and the Death of Copyright,” First Monday 4 (1999), http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/684/594 [Ed. note: originally published as http://firstmonday.org/issues/issue4_8/index.html, the link has changed].}~ Open source software is released under a series of licenses, the most important being the General Public License (GPL). The GPL specifies that anyone may copy the software, provided the license remains attached and the source code for the software always remains available.~{Proprietary, or “binary only,” software is generally released only after the source code has been compiled into machine-readable object code, a form that is impenetrable to the user. Even if you were a master programmer, and the provisions of the Copyright Act, the appropriate licenses, and the DMCA did not forbid you from doing so, you would be unable to modify commercial proprietary software to customize it for your needs, remove a bug, or add a feature. Open source programmers say, disdainfully, that it is like buying a car with the hood welded shut. See, e.g., Wayner, Free for All, 264.}~ Users may add to or modify the code, may build on it and incorporate it into their own work, but if they do so, then the new program created is also covered by the GPL. Some people refer to this as the “viral” nature of the license; others find the term offensive.~{See Brian Behlendorf, “Open Source as a Business Strategy,” in Open Sources: Voices from the Open Source Revolution, ed. Chris DiBona et al. (Sebastopol, Calif.: O’Reilly, 1999), 149, 163.}~ The point, however, is that the open quality of the creative enterprise spreads. It is not simply a donation of a program or a work to the public domain, but a continual accretion in which all gain the benefits of the program on pain of agreeing to give their additions and innovations back to the communal project. + +For the whole structure to work without large-scale centralized coordination, the creation process has to be modular, with units of different sizes and complexities, each requiring slightly different expertise, all of which can be added together to make a grand whole. I can work on the sendmail program, you on the search algorithms. More likely, lots of people try, their efforts are judged by the community, and the best ones are adopted. Under these conditions, this curious mix of Kropotkin and Adam Smith, Richard Dawkins and Richard Stallman, we get distributed production without having to rely on the proprietary exclusion model. The whole enterprise will be much, much, much greater than the sum of the parts. + +What’s more, and this is a truly fascinating twist, when the production process does need more centralized coordination, some governance that guides how the sticky modular bits are put together, it is at least theoretically possible that we can come up with the control system in exactly the same way. In this sense, distributed production is potentially recursive. Governance processes, too, can be assembled through distributed methods on a global network, by people with widely varying motivations, skills, and reserve prices.~{One organization theorist to whom I mentioned the idea said, “Ugh, governance by food fight.” Anyone who has ever been on an organizational listserv, a global production process run by people who are long on brains and short on social skills, knows how accurate that description is. E pur si muove.}~ + +The free and open source software movements have produced software that rivals or, some claim, exceeds the capabilities of conventional proprietary, binary-only software.~{See Bruce Brown, “Enterprise-Level Security Made Easy,” PC Magazine (January 15, 2002), 28; Jim Rapoza, “Open-Source Fever Spreads,” PC Week (December 13, 1999), 1.}~ Its adoption on the “enterprise level” is impressive, as is the number and enthusiasm of the various technical testaments to its strengths. You have almost certainly used open source software or been its beneficiary. Your favorite Web site or search engine may run on it. If your browser is Firefox, you use it every day. It powers surprising things around you—your ATM or your TiVo. The plane you are flying in may be running it. It just works. + +Governments have taken notice. The United Kingdom, for example, concluded last year that open source software “will be considered alongside proprietary software and contracts will be awarded on a value-for-money basis.” The Office of Government Commerce said open source software is “a viable desktop alternative for the majority of government users” and “can generate significant savings. . . . These trials have proved that open source software is now a real contender alongside proprietary solutions. If commercial companies and other governments are taking it seriously, then so must we.”~{“UK Government Report Gives Nod to Open Source,” Desktop Linux (October 28, 2004), available at http://www.desktoplinux.com/news/NS5013620917.html. }~ Sweden found open source software to be in many cases “equivalent to—or better than—commercial products” and concluded that software procurement “shall evaluate open software as well as commercial solutions, to provide better competition in the market.”~{ “Cases of Official Recognition of Free and Open Source Software,” available at http://ec.europa.eu/information_society/activities/opensource/cases/index_en.htm. }~ + +What is remarkable is not merely that the software works technically, but that it is an example of widespread, continued, high-quality innovation. The really remarkable thing is that it works socially, as a continuing system, sustained by a network consisting both of volunteers and of individuals employed by companies such as IBM and Google whose software “output” is nevertheless released into the commons. + +Here, it seems, we have a classic public good: code that can be copied freely and sold or redistributed without paying the creator or creators. This sounds like a tragedy of the commons of the kind that I described in the first three chapters of the book. Obviously, with a nonrival, nonexcludable good like software, this method of production cannot be sustained; there are inadequate incentives to ensure continued production. E pur si muove, as Galileo is apocryphally supposed to have said in the face of Cardinal Bellarmine’s certainties: “And yet it moves.”~{ E. Cobham Brewer, The Dictionary of Phrase and Fable (London: John Cassell, 1894), 1111–1112. }~ Or, as Clay Shirky put it, “we get our support from a community.” + +For a fair amount of time, most economists looked at open source software and threw up their hands. From their point of view, “we get our support from a community” did indeed sound like “we get our Thursdays from a banana.” There is an old economics joke about the impossibility of finding a twenty-dollar bill lying on a sidewalk. In an efficient market, the money would already have been picked up. (Do not wait for a punch line.) When economists looked at open source software they saw not a single twenty-dollar bill lying implausibly on the sidewalk, but whole bushels of them. Why would anyone work on a project the fruits of which could be appropriated by anyone? Since copyright adheres on fixation—since the computer programmer already has the legal power to exclude others—why would he or she choose to take the extra step of adopting a license that undermined that exclusion? Why would anyone choose to allow others to use and modify the results of their hard work? Why would they care whether the newcomers, in turn, released their contributions back into the commons? + +The puzzles went beyond the motivations of the people engaging in this particular form of “distributed creativity.” How could these implausible contributions be organized? How should we understand this strange form of organization? It is not a company or a government bureaucracy. What could it be? To Richard Epstein, the answer was obvious and pointed to a reason the experiment must inevitably end in failure: + +_1 The open source movement shares many features with a workers’ commune, and is likely to fail for the same reason: it cannot scale up to meet its own successes. To see the long-term difficulty, imagine a commune entirely owned by its original workers who share pro rata in its increases in value. The system might work well in the early days when the workforce remains fixed. But what happens when a given worker wants to quit? Does that worker receive in cash or kind his share of the gain in value during the period of his employment? If not, then the run-up in value during his period of employment will be gobbled up by his successor—a recipe for immense resentment. Yet that danger can be ducked only by creating a capital structure that gives present employees separable interests in either debt or equity in exchange for their contributions to the company. But once that is done, then the worker commune is converted into a traditional company whose shareholders and creditors contain a large fraction of its present and former employers. The bottom line is that idealistic communes cannot last for the long haul.~{ Richard Epstein, “Why Open Source Is Unsustainable,” FT.com (October 21, 2004), available at http://www.ft.com/cms/s/2/78d9812a-2386-11d9-aee5-00000e2511c8.html. }~ + +There are a number of ideas here. First, “idealistic communes cannot last for the long haul.” The skepticism about the staying power of idealism sounds plausible today, though there are some relatively prominent counterexamples. The Catholic Church is also a purportedly idealistic institution. It is based on canonical texts that are subject to even more heated arguments about textual interpretation than those which surround the General Public License. It seems to be surviving the long haul quite well. + +The second reason for doomsaying is provided by the word “commune.” The problems Epstein describes are real where tangible property and excludable assets are involved. But is the free and open source community a “commune,” holding tangible property in common and excluding the rest of us? Must it worry about how to split up the proceeds if someone leaves because of bad karma? Or is it a community creating and offering to the world the ability to use, for free, nonrival goods that all of us can have, use, and reinterpret as we wish? In that kind of commune, each of us could take all the property the community had created with us when we left and the commune would still be none the poorer. Jefferson was not thinking of software when he talked of the person who lights his taper from mine but does not darken me, but the idea is the same one. Copying software is not like fighting over who owns the scented candles or the VW bus. Does the person who wrote the “kernel” of the operating system resent the person who, much later, writes the code to manage Internet Protocol addresses on a wireless network? Why should he? Now the program does more cool stuff. Both of them can use it. What’s to resent? + +How about idealism? There is indeed a broad debate on the reasons that the system works: Are the motivations those of the gift economy? Is it, as Shirky says, simply the flowering of an innate love that human beings have always had for each other and for sharing, now given new strength by the geographic reach and cooperative techniques the Internet provides? “With love alone, you can plan a birthday party. Add coordinating tools and you can write an operating system.” Is this actually a form of potlatch, in which one gains prestige by the extravagance of the resources one “wastes”? Is open source an implicit résumé-builder that pays off in other ways? Is it driven by the species-being, the innate human love of creation that continually drives us to create new things even when homo economicus would be at home in bed, mumbling about public goods problems?~{ For a seminal statement, see Moglen, “Anarchism Triumphant,” 45: “ ‘[I]ncentives’ is merely a metaphor, and as a metaphor to describe human creative activity it’s pretty crummy. I have said this before, but the better metaphor arose on the day Michael Faraday first noticed what happened when he wrapped a coil of wire around a magnet and spun the magnet. Current flows in such a wire, but we don’t ask what the incentive is for the electrons to leave home. We say that the current results from an emergent property of the system, which we call induction. The question we ask is ‘what’s the resistance of the wire?’ So Moglen’s Metaphorical Corollary to Faraday’s Law says that if you wrap the Internet around every person on the planet and spin the planet, software flows in the network. It’s an emergent property of connected human minds that they create things for one another’s pleasure and to conquer their uneasy sense of being too alone. The only question to ask is, what’s the resistance of the network? Moglen’s Metaphorical Corollary to Ohm’s Law states that the resistance of the network is directly proportional to the field strength of the ‘intellectual property’ system. So the right answer to the econodwarf is, resist the resistance.” }~ + +Yochai Benkler and I would argue that these questions are fun to debate but ultimately irrelevant.~{Benkler’s reasoning is characteristically elegant, even formal in its precision, while mine is clunkier. See Yochai Benkler, “Coase’s Penguin, or, Linux and the Nature of the Firm,” Yale Law Journal 112 (2002): 369–446.}~ Assume a random distribution of incentive structures in different people, a global network—transmission, information sharing, and copying costs that approach zero—and a modular creation process. With these assumptions, it just does not matter why they do it. In lots of cases, they will do it. One person works for love of the species, another in the hope of a better job, a third for the joy of solving puzzles, and a fourth because he has to solve a particular problem anyway for his own job and loses nothing by making his hack available for all. Each person has their own reserve price, the point at which they say, “Now I will turn off Survivor and go and create something.” But on a global network, there are a lot of people, and with numbers that big and information overhead that small, even relatively hard projects will attract motivated and skilled people whose particular reserve price has been crossed. + +More conventionally, many people write free software because they are paid to do so. Amazingly, IBM now earns more from what it calls “Linux-related revenues” than it does from traditional patent licensing, and IBM is the largest patent holder in the world.~{Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006), 46–47.}~ It has decided that the availability of an open platform, to which many firms and individuals contribute, will actually allow it to sell more of its services, and, for that matter, its hardware. A large group of other companies seem to agree. They like the idea of basing their services, hardware, and added value on a widely adopted “commons.” This does not seem like a community in decline. + +People used to say that collaborative creation could never produce a quality product. That has been shown to be false. So now they say that collaborative creation cannot be sustained because the governance mechanisms will not survive the success of the project. Professor Epstein conjures up a “central committee” from which insiders will be unable to cash out—a nice mixture of communist and capitalist metaphors. All governance systems—including democracies and corporate boards—have problems. But so far as we can tell, those who are influential in the free software and open source governance communities (there is, alas, no “central committee”) feel that they are doing very well indeed. In the last resort, when they disagree with decisions that are taken, there is always the possibility of “forking the code,” introducing a change to the software that not everyone agrees with, and then letting free choice and market selection converge on the preferred iteration. The free software ecosystem also exhibits diversity. Systems based on GNU-Linux, for example, have distinct “flavors” with names like Ubuntu, Debian, and Slackware, each with passionate adherents and each optimized for a particular concern—beauty, ease of use, technical manipulability. So far, the tradition of “rough consensus and running code” seems to be proving itself empirically as a robust governance system. + +Why on earth should we care? People have come up with a surprising way to create software. So what? There are at least three reasons we might care. First, it teaches us something about the limitations of conventional economics and the counterintuitive business methods that thrive on networks. Second, it might offer a new tool in our attempt to solve a variety of social problems. Third, and most speculative, it hints at the way that a global communications network can sometimes help move the line between work and play, professional and amateur, individual and community creation, rote production and compensated “hobby.” + +We should pay attention to open source software because it shows us something about business methods in the digital world—indeed in the entire world of “information-based” products, which is coming to include biotechnology. The scale of your network matters. The larger the number of people who use your operating system, make programs for your type of computer, create new levels for your game, or use your device, the better off you are. A single fax machine is a paperweight. Two make up a communications link. Ten million and you have a ubiquitous communications network into which your “paperweight” is now a hugely valuable doorway. + +This is the strange characteristic of networked goods. The actions of strangers dramatically increase or decrease the usefulness of your good. At each stage the decision of someone else to buy a fax machine increases the value of mine. If I am eating an apple, I am indifferent about whether you are too. But if I have a fax machine then my welfare is actually improved by the decisions of strangers to buy one. The same process works in reverse. Buy a word processing program that becomes unpopular, get “locked in” to using it, and find yourself unable to exchange your work easily with others. Networks matter and increasing the size of the networks continues to add benefits to the individual members. + +What’s true for the users of networks is doubly so for the producers of the goods that create them. From the perspective of a producer of a good that shows strong network effects such as a word processing program or an operating system, the optimal position is to be the company that owns and controls the dominant product on the market. The ownership and control is probably by means of intellectual property rights, which are, after all, the type of property rights one finds on networks. The value of that property depends on those positive and negative network effects. This is the reason Microsoft is worth so much money. The immense investment in time, familiarity, legacy documents, and training that Windows or Word users have provides a strong incentive not to change products. The fact that other users are similarly constrained makes it difficult to manage any change. Even if I change word processor formats and go through the trouble to convert all my documents, I still need to exchange files with you, who are similarly constrained. From a monopolist’s point of view, the handcuffs of network effects are indeed golden, though opinions differ about whether or not this is a cause for antitrust action. + +But if the position that yields the most revenue is that of a monopolist exercising total control, the second-best position may well be that of a company contributing to a large and widely used network based on open standards and, perhaps, open software. The companies that contribute to open source do not have the ability to exercise monopoly control, the right to extract every last cent of value from it. But they do have a different advantage; they get the benefit of all the contributions to the system without having to pay for them. The person who improves an open source program may not work for IBM or Red Hat, but those companies benefit from her addition, just as she does from theirs. The system is designed to continue growing, adding more contributions back into the commons. The users get the benefit of an ever-enlarging network, while the openness of the material diminishes the lock-in effects. Lacking the ability to extract payment for the network good itself—the operating system, say—the companies that participate typically get paid for providing tied goods and services, the value of which increases as the network does. + +I write a column for the Financial Times, but I lack the fervor of the true enthusiast in the “Great Game of Markets.” By themselves, counterintuitive business methods do not make my antennae tingle. But as Larry Lessig and Yochai Benkler have argued, this is something more than just another business method. They point us to the dramatic role that openness—whether in network architecture, software, or content—has had in the success of the Internet. What is going on here is actually a remarkable corrective to the simplistic notion of the tragedy of the commons, a corrective to the Internet Threat storyline and to the dynamics of the second enclosure movement. This commons creates and sustains value, and allows firms and individuals to benefit from it, without depleting the value already created. To appropriate a phrase from Carol Rose, open source teaches us about the comedy of the commons, a way of arranging markets and production that we, with our experience rooted in physical property and its typical characteristics, at first find counterintuitive and bizarre. Which brings us to the next question for open source. Can we use its techniques to solve problems beyond the world of software production? + +In the language of computer programmers, the issue here is “does it scale?” Can we generalize anything from this limited example? How many types of production, innovation, and research fit into the model I have just described? After all, for many innovations and inventions one needs hardware, capital investment, and large-scale, real-world data collection—stuff, in its infinite recalcitrance and facticity. Maybe the open source model provides a workaround to the individual incentives problem, but that is not the only problem. And how many types of innovation or cultural production are as modular as software? Is open source software a paradigm case of collective innovation that helps us to understand open source software and not much else? + +Again, I think this is a good question, but it may be the wrong one. My own guess is that an open source method of production is far more common than we realize. “Even before the Internet” (as some of my students have taken to saying portentously), science, law, education, and musical genres all developed in ways that are markedly similar to the model I have described. The marketplace of ideas, the continuous roiling development in thought and norms that our political culture spawns, owes much more to the distributed, nonproprietary model than it does to the special case of commodified innovation that we think about in copyright and patent. Not that copyright and patent are unimportant in the process, but they may well be the exception rather than the norm. Commons-based production of ideas is hardly unfamiliar, after all. + +In fact, all the mottos of free software development have their counterparts in the theory of democracy and open society; “given enough eyeballs, all bugs are shallow” is merely the most obvious example. Karl Popper would have cheered.~{See Karl Popper, The Open Society and Its Enemies (London: Routledge, 1945).}~ The importance of open source software is not that it introduces us to a wholly new idea. It is that it makes us see clearly a very old idea. With open source the technology was novel, the production process transparent, and the result of that process was a “product” which outcompeted other products in the marketplace. “How can this have happened? What about the tragedy of the commons?” we asked in puzzlement, coming only slowly to the realization that other examples of commons-based, nonproprietary production were all around us. + +Still, this does not answer the question of whether the model can scale still further, whether it can be applied to solve problems in other spheres. To answer that question we would need to think more about the modularity of other types of inventions. How much can they be broken down into chunks suitable for distribution among a widespread community? Which forms of innovation have some irreducible need for high capital investment in distinctly nonvirtual components—a particle accelerator or a Phase III drug trial? Again, my guess is that the increasing migration of the sciences toward data- and processing-rich models makes much more of innovation and discovery a potential candidate for the distributed model. Bioinformatics and computational biology, the open source genomics project,~{See http://www.ensembl.org. }~ the BioBricks Foundation I mentioned in the last chapter, the possibility of distributed data scrutiny by lay volunteers~{ See, e.g., NASA’s “Clickworkers” experiment, which used public volunteers to analyze Mars landing data, available at http://clickworkers.arc.nasa.gov/top. }~ —all of these offer intriguing glances into the potential for the future. Finally, of course, the Internet is one big experiment in, as Benkler puts it, peer-to-peer cultural production.~{ Benkler, “Coase’s Penguin,” 11. }~ + +If these questions are good ones, why are they also the wrong ones? I have given my guesses about the future of the distributed model of innovation. My own utopia has it flourishing alongside a scaled-down, but still powerful, intellectual property regime. Equally plausible scenarios see it as a dead end or as the inevitable victor in the war of productive processes. These are all guesses, however. At the very least, there is some possibility, even hope, that we could have a world in which much more of intellectual and inventive production is free. “ ‘Free’ as in ‘free speech,’ ” Richard Stallman says, not “free as in ‘free beer.’ ”~{ Free Software Foundation, http://www.gnu.org/philosophy/free-sw.html [Ed. note: originally published at http://www.gnu.ai.mit.edu/philosophy/free-sw.html, the link has changed]. }~ But we could hope that much of it would be both free of centralized control and low- or no-cost. When the marginal cost of reproduction is zero, the marginal cost of transmission and storage approaches zero, the process of creation is additive, and much of the labor doesn’t charge, the world looks a little different.~{Exhibit A: the Internet—from the software and protocols on which it runs to the multiple volunteer sources of content and information. }~ This is at least a possible future, or part of a possible future, and one that we should not foreclose without thinking twice. Yet that is what we are doing. The Database Protection Bills and Directives, which extend intellectual property rights to the layer of facts;~{See, e.g., the Database Investment and Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); The Consumer Access Bill, HR 1858, 106th Cong. § 101(1) (1999); see also Council Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the Legal Protection of Databases, 1996 Official Journal of the European Union, L77 (27.03.1996): 20–28. }~ the efflorescence of software patents;~{ See generally Julie E. Cohen and Mark A. Lemley, “Patent Scope and Innovation in the Software Industry,” California Law Review 89 (2001): 1–58; see also Pamela Samuelson et al., “A Manifesto Concerning the Legal Protection of Computer Programs,” Columbia Law Review 94 (1994): 2308–2431. }~ the UCITA-led validation of shrinkwrap licenses that bind third parties;~{ Uniform Computer Information Transactions Act, available at http://www.law.upenn.edu/bll/archives/ulc/ucita/2002final.htm. }~ the Digital Millennium Copyright Act’s anticircumvention provisions~{ 17 U.S.C. § 1201 (2002). }~ —the point of all of these developments is not merely that they make the peer-to-peer model difficult, but that in many cases they rule it out altogether. I will assert this point here, rather than argue for it, but I think it can be (and has been) demonstrated quite convincingly.~{ This point has been ably made by Pamela Samuelson, Jessica Litman, Jerry Reichman, Larry Lessig, and Yochai Benkler, among others. See Pamela Samuelson, “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised,” Berkeley Technology Law Journal 14 (1999): 519–566; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001); J. H. Reichman and Paul F. Uhlir, “Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology,” Berkeley Technology Law Journal 14 (1999): 793–838; Lawrence Lessig, “Jail Time in the Digital Age,” New York Times (July 30, 2001), A17; and Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354–446. Each has a slightly different focus and emphasis on the problem, but each has pointed out the impediments now being erected to distributed, nonproprietary solutions. See also James Boyle, “Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property,” Vanderbilt Law Review 53 (2000): 2007–2039. }~ + +The point is, then, that there is a chance that a new (or old, but under-recognized) method of production could flourish in ways that seem truly valuable—valuable to free speech, innovation, scientific discovery, the wallets of consumers, to what William Fisher calls “semiotic democracy,”~{ William W. Fisher III, “Property and Contract on the Internet,” Chicago-Kent Law Review 73 (1998): 1217–1218. }~ and, perhaps, valuable to the balance between joyful creation and drudgery for hire. True, it is only a chance. True, this theory’s scope of operation and sustainability are uncertain. But why would we want to foreclose it? That is what the recent expansions of intellectual property threaten to do. And remember, these expansions were dubious even in a world where we saw little or no possibility of the distributed production model I have described, where discussion of network effects had yet to reach the pages of The New Yorker,~{ See James Boyle, “Missing the Point on Microsoft,” Salon.com (April 7, 2000), http://www.salon.com/tech/feature/2000/04/07/greenspan/index.html. }~ and where our concerns about the excesses of intellectual property were simply the ones that Jefferson, Madison, and Macaulay gave us so long ago. + +2~ Learning from the Sharing Economy + +Accept for the sake of argument that the free software community actually works, actually produces high-quality products capable of competing in the market with proprietary alternatives. Concede for a moment that the adoption of Creative Commons licenses shows there are millions of creators out there who want to share their works with others. Many of those creators even want to allow the world to build on their material. Indeed, let us concede that the whole history of the Web, from Wikipedia to the obsessive and usefully detailed sites created on everything from Vikings to shoe polishes, shows a desire to share one’s knowledge, to build on the work of others one has never met. These efforts are remarkably varied. Some are ultimately aimed at profit—even if their results are free. Think of IBM’s open source initiatives or musicians who release Creative Commons-licensed work in order to get more club gigs. Some are provided as a volunteer act of benevolence or civic duty, even if they “compete” with expensive proprietary alternatives. Think of Wikipedia or MIT’s OpenCourseWare. When the infrastructure for this collaboration does not exist, it gets assembled—and quickly. Both the GPL and Creative Commons are examples. Accept all of this. So what? + +Lesson number one comes from the nonprofit activities—everything from Wikipedia to Web sites created by enthusiasts. People like to create and wish to share. In many cases they will do so without financial reward. A surprising amount of useful, creative, or expressive activity is generated without any financial incentive at all. + +Should this cause us to throw out the economic case for copyrights? No. But it should lead us to reassess it. As I explained in Chapter 1, copyright provides an incentive for two distinct activities. First, it offers an incentive to create the work in the first place. The author of Windows for Dummies or Harry Potter gets a right to exclude others from copying the work, a right that he or she can sell in the marketplace. The goal is to offer a financial reason to devote time to this particular creative activity. It is this incentive that is most often cited when attempting to persuade policy makers to expand protection. Second, it offers an incentive to distribute the work—to typeset and print large quantities of the work and to sell it to bookstores, or to broadcast it, or put it on movie screens. + +Each medium is economically different, of course. The economics of the feature film are different from those of the book, the magazine, or the operating system. Thus, we have never had very good figures on the relative importance of these incentives. We can only guess at how much of the incentive from copyright goes to encouraging creation and how much to distribution. Until recently, most types of distribution demanded higher levels of capital. The industry structure that resulted often consisted of creators who worked as wage or contract labor for distributors—either never acquiring copyright in their work in the first place or immediately transferring that copyright to their employers. Because distribution was expensive, our experience with material generated for fun or out of a love of sharing was an essentially private and local one. You might have a neighbor’s photocopied sheet of baking recipes that worked well at high altitudes, or of fishing techniques that worked well on a particular lake, a song that a friend created for a special occasion, or a short story you wrote for your kids—and then typed up for them to tell to theirs. Financial incentives were not needed to encourage the creation of the work, but the cost of distribution dramatically limited its dissemination. + +The single most dramatic thing that the Web has done by lowering the cost of communication and distribution, at the same moment that other electronic tools lowered the cost of production, is to make this local and private activity a global and public one. Someone, somewhere, will have written the guide to fishing on that lake, baking at that altitude, washing windows, or treating stings from Portuguese man-of-war jellyfish. Someone will have taken a photo of the Duke Chapel or explained the history, economics, and chemistry of shoe polish or distilling. Someone might even have created a great class on music theory or C++programming. Someone will have written a handy little program to manage DNS requests on a local network. Bizarrely, at least as far as the economists were concerned, these people all wanted to share what they had made. Because of the genius of search engines, and the implicit peer-review function that those engines deduce from patterns of links to pages, I can find that material when I need it. + +True, much of the material on the Web is inane or insane, confused, badly written, tendentious, and inaccurate. (It should be noted that this is hardly a problem confined to the Web or volunteer-generated material. Personally, I would not want People magazine or Fox News in a time capsule to represent my civilization. But some of the material on the Web is clearly worse.) Yes, Wikipedia is occasionally inaccurate—though in one test in Nature it stacked up well against the Encyclopedia Britannica, and it is obviously much more encyclopedic in its coverage. But all of this misses the point. + +Consider how your expectations about information retrieval have changed in the last fifteen years. We now simply assume that questions about a piece of architecture, a bit of local history, a recipe, or the true author of a song can all be answered within seconds. We have forgotten what it is like to be routinely in ignorance because of the unavailability of some piece of information. One podcaster I talked to called it being a member of “the right-click generation”: “When I am walking around and I see a building, I almost feel as though I ought to be able to ‘right click’ it and have the architect’s name pop up.” Consider that it now seems normal for a gay Iraqi man in Baghdad to have a blog that offers hundreds of thousands of readers around the world a literate and touching account of the American occupation from a perspective entirely different from that provided by the mainstream press.~{ See “Salam Pax,” Wikipedia, available at http://en.wikipedia.org/wiki/Salam_Pax. }~ We think it normal for a person of moderate resources to be able to speak to the world from a war zone, whether or not he is affiliated with a newspaper or credentialed by a corporation. + +These examples are not the end of the process. Our methods of sorting, ranking, and verifying the material generated are still evolving. They may improve even beyond this point. We are only fifteen years into this particular experiment, after all. And a huge amount of this material is produced by our fellow citizens without the profit motive. + +Does this mean that we no longer need copyright or patent protection to encourage the production and distribution of creative work? No. The fishing tips are great, but I still might buy a handsomely illustrated guide to take on the lake with me or, even better, just stay at home and read A River Runs Through It. The New Yorker, and not a sheaf of printouts from the Web, still sits on my coffee table, though much of the high-quality content I read comes to me online, for free, from strangers who are generating it for pleasure, not profit, or who profit from open sharing, not closed control. The online blogosphere provides a vital counterpoint to mainstream media, but it exists in a symbiotic—some would say parasitic—relationship with that media and the network of professional news gatherers for which it pays. Some of the most interesting open source production methods actually rely on copyright. Even if they did not, open source production would not suffice to run our pharmaceutical industry (though it might help with certain stages of the drug discovery process). + +Still, just as it would be silly to dismiss the importance of intellectual property based on our experience of blogs and Wikipedia and open source software, it would be equally silly to underestimate what the Web has taught us. The Web has enabled an astonishing flowering of communication and expression, an astounding democratization of creativity. We have learned just how strong, and how useful, is the human urge to express, communicate, invent, and create—provided the barriers to sharing are lowered. These are the very things that copyright and patent are supposed to encourage. For us to portray the Web—as the Internet Threat story line does—as predominantly a threat to creativity is simply perverse. For us to base our policies only on that notion would be a tragedy. We might end up stultifying one of the greatest explosions of human creativity the world has ever seen by treating it as an unimportant marginal case and instead designing our rules around the production processes of commercial culture in the late twentieth century. + +The shape of our copyright and to a lesser extent our patent system comes from a world in which almost all large-scale distribution was an expensive, capital-intensive enterprise. The roles of gatekeeper and financier, producer and assembler, distributor and advertiser, tended naturally to coalesce into vertically integrated firms or symbiotic commercial partnerships. Those firms were presumed to be the proxy for the public interest when it came to intellectual property policy. Who would know better than they what was needed? Occasionally, device manufacturers would provide a counterweight—as in the Sony case—where the defense of a particular “consumer freedom” actually created a market for a complementary product. Artists and authors might be trotted out as appealing spokespersons, though the laws that were made only sporadically reflected their economic and artistic interests. Librarians and educational institutions had influence at the edges. Most of the time, though, it was the assemblers and distributors of content whose voices and assumptions about markets would be heard. + +Out of this pattern of habit and influence, and out of much deeper notions about authorship and invention that I have explored elsewhere, developed an ideology, a worldview. Call it maximalism. Its proponents sincerely believed in it and pursued it even when it did not make economic sense. (Think how lucky the movie industry is that it lost the Sony + +This process was not—let me stress—was not a simple process of economic determinism or industry conspiracy. Anyone who claims that is the thesis of this book simply has not read it. (Reviewers beware.) Let us start with economic determinism. It was not a situation in which the law mechanistically recorded the interests of the most economically important industries in the area. This was the creation of a worldview, not the steely-eyed calculation of profit and loss. Not only did many of the rules we ended up with make no sense from the point of view of some of the largest economic players in the area—think of the device manufacturers, the search engines, and so on—they frequently made no sense from the perspective of those proposing them. Attempting to twist the law to make it illegal for technology to interfere with your old business method is frequently bad for the industry seeking the protection, as well as for the technology, the market, and the wider society. Since this worldview makes incumbents systematically blind to profit-making opportunities that could be secured by greater openness, rather than greater control, it actually disables them from pursuing some of the most promising methods by which they could have made money for their shareholders. Again, the chapter on the Sony decision offers a salutary example. + +Economic determinism does not explain the rules we have. Neither are those rules simply a result of the manipulation of elected officials by incumbent industries through crafty campaign contributions and distorted evidence (though to be sure, there was a lot of that as well). Many of the people who put forward this worldview—both lobbyists and lobbied—sincerely believe that more rights will always lead to more innovation, that all property rights are the same, that we do not need to think about both the input and output sides of the equation, that cheaper copying techniques automatically require greater protections, and so on. What of the modest suggestions I put forward here? We could sum them up thus: do not apply identical assumptions to physical and intellectual property. Focus on both the inputs to and the outputs of the creative process; protecting the latter may increase the cost of the former. Look both at the role of the public domain and the commons of cultural and scientific material and at the need to provide incentives for creativity and distribution through exclusive rights. More rights will not automatically produce more innovation. Indeed, we should confine rights as narrowly as possible while still providing the desired result. Look at the empirical evidence before and after increasing the level of protection. Pay attention to the benefits as well as the costs of the new technologies and the flowering of creativity they enable. + +To me, these points seem bland, boring, obvious—verging on tautology or pablum. To many believers in the worldview I have described, they are either straightforward heresy or a smokescreen for some real, underlying agenda—which is identified as communism, anarchism, or, somewhat confusingly, both. + +This account smacks of exaggeration, I know. How could things be so one-sided? The best answer I can give came from a question I was asked at a recent conference. The questioner pointed out politely that it was unlikely that the policy-making process would ignore such a fundamental and obvious set of points—points that I myself observed had been well understood for hundreds of years. I had used many examples of intellectual property rights being extended—in length, breadth, scope. Why had I not spoken, he asked, of all the times over the last fifty years when intellectual property rights had been weakened, curtailed, shortened? Since human beings were fallible, surely there were occasions when the length of a copyright or patent term had proved to be too long, or the scope of a right too large, and the rights had been narrowed appropriately by legislation. Why did I not cite any of these? The answer is simple. To the best of my knowledge, there are none. Legislatively, intellectual property rights have moved only in one direction—outward. (Court decisions present a more complex picture, as the previous chapter’s discussion of software copyrights and business method patents shows.) + +What are the odds that the costs of new technologies are always greater than their benefits as far as intellectual property rights holders are concerned? This pattern is not a matter of policies carefully crafted around the evidence. It is the fossil record of fifty years of maximalism. If I lean toward the other side of the story it is not because I am a foe of intellectual property. It is because I believe our policies have become fundamentally unbalanced—unbalanced in ways that actually blind us to what is going on in the world of creativity. + +We are living through an existence-proof that there are other methods of generating innovation, expression, and creativity than the proprietary, exclusionary model of sole control. True, these methods existed before. Yet they tended to be local or invisible or both. The Internet has shown conclusively and visibly that—at least in certain sectors—we can have a global flowering of creativity, innovation, and information sharing in which intellectual property rights function in a very different way than under the standard model of proprietary control. In some cases, intellectual property rights were simply irrelevant—much of the information sharing and indexing on the Web falls within this category. In some cases they were used to prevent exclusivity. Think of Creative Commons or the General Public License. In some, they were actually impediments. Software patents, for example, have a negative effect on open source software development—one that policy makers are only now slowly beginning to acknowledge. + +It is important not to overstate how far the sharing economy can get us. It might help to cut the costs of early-stage drug development, as the Tropical Disease Initiative attempts to do for neglected diseases. It will not generate a Phase III drug trial or bring a drug to market. Sharing methods might be used to generate cult movies such as Star Wreck: In the Pirkinning, which was created using techniques borrowed from open source software and is available under a Creative Commons license. They will not produce a mammoth blockbuster like Ben Hur, or Waterworld for that matter—results that will generate mixed feelings. So there are real limitations to the processes I describe. + +But even acknowledging those limitations, it is fair to say that one of the most striking events to occur during our lifetimes is the transformation wrought by the Web, a transformation that is partly driven by the extraordinary explosion of nonproprietary creativity and sharing across digital networks. The cultural expectation that a web of expression and information will just be there—whatever subject we are discussing—is a fundamental one, the one that in some sense separates us from our children. With this as a background it is both bizarre and perverse that we choose to concentrate our policy making only on maintaining the business methods of the last century, only on the story line of the Internet Threat, only on the dangers that the technology poses to creativity (and it does pose some) and never on the benefits. + +What would it mean to pay attention to the changes I have described? It would mean assessing the impact of rules on both proprietary and nonproprietary production. For example, if the introduction of a broad regime of software patents would render open source software development more difficult (because individual contributors cannot afford to do a patent search on every piece of code they contribute), then this should be reflected as a cost of software patents, to be balanced against whatever benefits the system brought. A method for encouraging innovation might, in fact, inhibit one form of it. + +Paying attention to the last ten years means we need to realize that nonproprietary, distributed production is not the poor relation of traditional proprietary, hierarchically organized production. This is no hippy lovefest. It is the business method on which IBM has staked billions of dollars; the method of cultural production that generates much of the information each of us uses every day. It is just as deserving of respect and the solicitude of policy makers as the more familiar methods pursued by the film studios and proprietary software companies. Losses due to sharing that failed because of artificially erected legal barriers are every bit as real as losses that come about because of illicit copying. Yet our attention goes entirely to the latter. + +The main thrust of the argument here is still firmly within the Jeffersonian, Scottish Enlightenment tradition. Jefferson does not wish to give the patent to Oliver Evans because he believes the invention will be (and has been) generated anyway without the granting of an intellectual property right and that there are sufficient information retrieval methods to have practical access to it. In this case, the information retrieval method is not Google. It is a polymath genius combing his library in Monticello for references to Persian irrigation methods. The “embarrassment” caused by the unnecessary patent is added expense and bureaucracy in agriculture and impediments to further innovators, not the undermining of open source software. But it is the same principle of cautious minimalism, the same belief that much innovation goes on without proprietary control and that intellectual property rights are the exception, not the rule. When Benjamin Franklin, a man who surely deserved patents under even the most stringent set of tests, chooses to forgo them because he has secured so much benefit from the contributions of others, he expresses Shirky’s norm nicely. + +Indeed, Jefferson’s optimism depends partly on a view of information sharing that captures beautifully the attitudes of the generation that built the Web. The letter that I discussed in Chapter 2 was widely cited for precisely this reason. Remember these lines? + +_1 That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. + +What could encapsulate better the process by which information spreads on a global network? What could more elegantly state the norms of the “information wants to be free” generation? (Though those who quoted him conveniently omitted the portions of his analysis where he concedes that there are cases where intellectual property rights may be necessary and desirable.) + +In some ways, then, the explosion of nonproprietary and, in many cases, noncommercial creativity and information sharing is simply the vindication of Jefferson’s comparison of ideas with “fire . . . expansible over all space.” The Web makes the simile a reality and puts an exclamation point at the end of the Jefferson Warning. All the more reason to pay attention to it. But the creative commons I described here goes further. It forces us to reconceptualize a form of life, a method of production, and a means of social organization that we used to relegate to the private world of informal sharing and collaboration. Denied a commons by bad intellectual property rules, we can sometimes build our own—which may in some ways do even more for us than the zone of free trade, free thought, and free action that Jefferson wished to protect. + +Does all this mean that the Jefferson Warning is no longer necessary? Can we mitigate the negative effects of intellectual property expansion through a series of privately constructed commons? The answers to those questions are, respectively, “no” and “sometimes.” Think of the story of retrospectively extended copyright and orphan works. In many cases the problem with our intellectual property rights is that they create barriers to sharing—without producing an incentive in return—in ways that can never be solved through private agreement. Twentieth century culture will largely remain off-limits for digitization, reproduction, adaptation, and translation. No series of private contracts or licenses can fix the problem because the relevant parties are not in the room and might not agree if they were. + +Even when the parties are available and agree to share, the benefits may not flow to all equally. Beset by a multitude of vague patents of questionable worth and uncertain scope, large information technology firms routinely create patent pools. IBM tosses in thousands of patents, so does Hewlett or Dell. Each agrees not to sue the other. This is great for the established companies; they can proceed without fear of legal action from the landmine patents that litter the technological landscape. As far as the participants are concerned, the patent pool is almost like the public domain—but a privatized public domain, a park that only residents may enter. But what about the start up company that does not have the thousands of patents necessary for entry? They are not in as happy a situation. The patent pool fixes the problem of poor patent quality and unclear scope—one that Jefferson was worrying about 200 years ago. But it fixes it only for the dominant firms, hurting competition in the process. + +Attempts to form a commons may also backfire. The coordination problems are legion. There are difficulties of compatibility in licenses and the process, no matter how easy, still imposes transaction costs. Nevertheless, with all of these qualifications, the idea of the privately created commons is an important addition to the world view that Jefferson provided, a new tool in our attempt to craft a working system of innovation and culture. No one who looks at the Web can doubt the power of distributed, and frequently uncompensated, creativity in constructing remarkable reference works, operating systems, cultural conversations, even libraries of images and music. Some of that innovation happens largely outside of the world of intellectual property. Some of it happens in privately created areas of sharing that use property rights and open, sometimes even machine-readable, licenses to create a commons on which others can build. The world of creativity and its methods is wider than we had thought. That is one of the vital and exciting lessons the Internet teaches us; unfortunately, the only one our policy makers seem to hear is “cheaper copying means more piracy.” + +2~ Chapter 8: Further Reading + +3~ Distributed Creativity + +The most remarkable and important book on “distributed creativity” and the sharing economy is Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006). Benkler sets the idea of “peer production” alongside other mechanisms of market and political governance and offers a series of powerful normative arguments about why we should prefer that future. Comprehensive though this book may seem, it is incomplete unless it is read in conjunction with one of Benkler’s essays: Yochai Benkler, “Coase’s Penguin, or, Linux and the Nature of the Firm,” Yale Law Journal 112 (2002): 369–446. In that essay, Benkler puts forward the vital argument—described in this chapter—about what collaborative production does to Coase’s theory of the firm. + +Benkler’s work is hardly the only resource however. Other fine works covering some of the same themes include: Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (New York: Oxford University Press, 2006), and Rishab Aiyer Ghosh, ed., CODE: Collaborative Ownership and the Digital Economy (Cambridge, Mass.: MIT Press, 2005), which includes an essay by me presenting an earlier version of the “second enclosure movement” argument. Clay Shirky’s recent book, Here Comes Everybody: The Power of Organizing without Organizations (New York: Penguin Press, 2008), is an extremely readable and thoughtful addition to this body of work—it includes a more developed version of the speech I discuss. Eric Von Hippel’s Democratizing Innovation (Cambridge, Mass.: MIT Press, 2005), is a fascinating account of the way that innovation happens in more places than we have traditionally imagined—particularly in end-user communities. In one sense, this reinforces a theme of this chapter: that the “peer production” and “distributed creativity” described here is not something new, merely something that is given dramatically more salience and reach by the Web. Dan Hunter and F. Gregory Lastowka’s article, “Amateur-to-Amateur,” William & Mary Law Review 46 (2004): 951–1030, describes some of the difficulties in adapting copyright law to fit “peer production.” Finally, Jonathan Zittrain’s The Future of the Internet—And How to Stop It (New Haven, Conn.: Yale University Press, 2008)—also relevant to Chapter 10—argues that if the democratically attractive aspects of the Internet are to be saved, it can only be done through enlisting the collective energy and insight of the Internet’s users. + +3~ Free and Open Source Software + +Free and open source software has been a subject of considerable interest to commentators. Glyn Moody’s Rebel Code: Linux and the Open Source Revolution (Cambridge, Mass.: Perseus Pub., 2001), and Peter Wayner’s Free for All: How Linux and the Free Software Movement Undercut the High-Tech Titans (New York: HarperBusiness, 2000), both offer readable and accessible histories of the phenomenon. Eric S. Raymond, The Cathedral and the Bazaar: Musings on Linux and Open Source by an Accidental Revolutionary, revised edition (Sebastopol, Calif.: O’Reilly, 2001), is a classic philosophy of the movement, written by a key participant—author of the phrase, famous among geeks, “given enough eyeballs, all bugs are shallow.” Steve Weber, in The Success of Open Source (Cambridge, Mass.: Harvard University Press, 2004), offers a scholarly argument that the success of free and open source software is not an exception to economic principles but a vindication of them. I agree, though the emphasis that Benkler and I put forward is rather different. To get a sense of the argument that free software (open source software’s normatively charged cousin) is desirable for its political and moral implications, not just because of its efficiency or commercial success, one should read the essays of Richard Stallman, the true father of free software and a fine polemical, but rigorous, essayist. Richard Stallman, Free Software, Free Society: Selected Essays of Richard M. Stallman, ed. Joshua Gay (Boston: GNU Press, 2002). Another strong collection of essays can be found in Joseph Feller, Brian Fitzgerald, Scott A. Hissam, and Karim R. Lakhani, eds., Perspectives on Free and Open Source Software (Cambridge, Mass.: MIT Press, 2005). If you only have time to read a single essay on the subject it should be Eben Moglen’s “Anarchism Triumphant: Free Software and the Death of Copyright,” First Monday 4 (1999), available at http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/684/594 [Ed. note: originally published as http://www.firstmonday.dk/issues/issue4_8/moglen/, the link has changed]. + +3~ Creative Commons + +Creative Commons has only just begun to attract its own chroniclers. Larry Lessig, its founder, provides a characteristically eloquent account in “The Creative Commons,” Montana Law Review 65 (2004): 1–14. Michael W. Carroll, a founding board member, has produced a thought-provoking essay discussing the more general implications of organizations such as Creative Commons. Michael W. Carroll, “Creative Commons and the New Intermediaries,” Michigan State Law Review, 2006, n.1 (Spring): 45–65. Minjeong Kim offers an empirical study of Creative Commons licenses in “The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses,” Journal of Computer-Mediated Communication 13 (2007): Article 10, available at http://jcmc.indiana.edu/vol13/issue1/kim.html. However, simply because of the rapidity of adoption of Creative Commons licenses, the work is already dramatically out of date. My colleague Jerome Reichman and Paul Uhlir of the National Academy of Sciences have written a magisterial study of the way in which tools similar to Creative Commons licenses could be used to lower transaction costs in the flow of scientific and technical data. J. H. Reichman and Paul Uhlir, “A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment,” Law and Contemporary Problems 66 (2003): 315–462. Finally, the gifted author, David Bollier, is reportedly writing a book on Creative Commons entitled Viral Spiral: How the Commoners Built a Digital Republic of Their Own (New York: New Press, forthcoming 2009). + +Niva Elkin-Koren offers a more critical view of Creative Commons in “Exploring Creative Commons: A Skeptical View of a Worthy Pursuit,” in The Future of the Public Domain—Identifying the Commons in Information Law, ed. P. Bernt Hugenholtz and Lucie Guibault (The Hague: Kluwer Law International, 2006). Elkin-Koren’s argument is that Creative Commons has an unintended negative effect by leading individuals to think of themselves through the reified categories of legal subjects and property owners—forcing into a legalized realm something that should simply be experienced as culture. Elkin-Koren is a perceptive and influential scholar; some of her early work on bulletin boards for example, was extremely important in explaining the stakes of regulating the Internet to a group of judges and policy makers. I also acknowledge the truth of her theoretical point; in many ways Creative Commons is offered as a second best solution. But I am unconvinced by the conclusion. Partly, this is because I think Elkin-Koren’s account of the actual perceptions of license users is insufficiently grounded in actual evidence. Partly, it is because I think the legalization—undesirable though it may be in places—has already happened. Now we must deal with it. Partly, it is because I believe that many of the activities that the licenses enable—a global commons of free educational materials, for example—simply cannot be produced any other way in the political reality we face, and I have a preference for lighting candles rather than lamenting the darkness. + +1~ Chapter 9: An Evidence-Free Zone + +Perhaps some of the arguments in this book have convinced you. Perhaps it is a mistake to think of intellectual property in the same way we think of physical property. Perhaps limitations and exceptions to those rights are as important as the rights themselves. Perhaps the public domain has a vital and tragically neglected role to play in innovation and culture. Perhaps relentlessly expanding property rights will not automatically bring us increased innovation in science and culture. Perhaps the second enclosure movement is more troubling than the first. Perhaps it is unwise to extend copyright again and again, and to do so retrospectively, locking up most of twentieth-century culture in order to protect the tiny fragment of it that is still commercially available. Perhaps technological improvements bring both benefits and costs to existing rights holders—both of which should be considered when setting policy. Perhaps we need a vigorous set of internal limitations and exceptions within copyright, or control over content will inevitably become control over the medium of transmission. Perhaps the Internet should make us think seriously about the power of nonproprietary and distributed production. + +Saying all this gives us some guidance in how we should think. It points out certain patterns of error. But its prescriptions are not simple. Precisely because it is not a rejection of intellectual property rights, but rather a claim that they only work well through a process of consciously balancing openness and control, public domain and private right, it still leaves open the question of where that point of balance is and how to strike it. + +In this chapter I want to offer a suggestion that in any other field would be stunningly obvious, boring even, but in the funhouse mirror of intellectual property appears revolutionary. We should make our policy based on empirical evidence of its likely effects and there should be a formal requirement of empirical reconsideration of those policies after they have been implemented to see if they are working. Why is this a good idea? + +Imagine a process of reviewing prescription drugs that goes like this: representatives from the drug company come to the regulators and argue that their drug works well and should be approved. They have no evidence of this beyond a few anecdotes about people who want to take it and perhaps some very simple models of how the drug might affect the human body. The drug is approved. No trials, no empirical evidence of any kind, no follow-up. Or imagine a process of making environmental regulations in which there were no data, and no attempts to gather data, about the effects of the particular pollutants being studied. Even the harshest critics of regulation would admit we generally do better than this. But this is often the way we make intellectual property policy. + +So how do we decide the ground rules of the information age? Representatives of interested industries come to regulators and ask for another heaping slice of monopoly rent in the form of an intellectual property right. They have doom-laden predictions, they have anecdotes, carefully selected to pluck the heartstrings of legislators, they have celebrities who testify—often incoherently, but with palpable charisma—and they have very, very simple economic models. The basic economic model here is “If you give me a larger right, I will have a larger incentive to innovate. Thus the bigger the rights, the more innovation we will get. Right?” + +As I have tried to show here using the words of Jefferson and Macaulay and examples such as term extension, software copyrights, and garage door openers, this logic is fallacious. Even without data, the “more is better” idea is obviously flawed. Copyrighting the alphabet will not produce more books. Patenting E=mc2 will not yield more scientific innovation. Intellectual property creates barriers to, as well as incentives toward, innovation. Jefferson agonized over the issue of when the benefits exceed the costs of a new right. “I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.” It is not clear that contemporary policy makers approach issues with anything like the same sophistication or humility. But it would be an equal mistake to conclude, as some do, that expansions of intellectual property are never justified. Extensions of rights can help or hurt, but without economic evidence beforehand and review afterward, we will never know. This point should be obvious, banal, even deeply boring, but sadly it is not. + +From Jefferson and Macaulay and Adam Smith, I derived a second point. In the absence of evidence on either side, the presumption should be against creating a new, legalized monopoly. The burden of proof should lie on those who claim, in any particular case, that the state should step in to stop competition, outlaw copying, proscribe technology, or restrict speech. They have to show us that the existing protection is not enough. But this presumption is a second-best solution and the empirical emptiness of the debates frustrating. + +This makes an occasion where there is some evidence a time for celebration. What we need is a test case in which one country adopts the proposed new intellectual property right and another similarly situated country does not, and we can assess how they are both doing after a number of years. + +There is such a case. It is the “database right.” + +2~ Owning Facts? + +Europe adopted a Database Directive in 1996 which gave a high level of copyright protection to databases and conferred a new “sui generis” database right even on unoriginal compilations of facts. In the United States, by contrast, in a 1991 case called Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), the Supreme Court made it clear that unoriginal compilations of facts are not copyrightable. + +What does all this mean? Take the phone directory—that was the product at issue in the Feist case. A white pages directory is a database of names and numbers, compiled in alphabetical order by name. Does anyone have an intellectual property right over it? Not the particular dog-eared directory lying next to your phone. Does the phone company that compiled it own the facts, the numbers inside that directory? Could they forbid me from copying them, adding others from surrounding areas, and issuing a competing directory that I believed consumers would find more valuable? This was an important issue for Feist because it went to the heart of their business. They issued regional telephone directories, combining records from multiple phone companies. In this case, all the other companies in the region agreed to license their data to Feist. Rural did not, so Feist copied the information, checked as many entries as possible, adding addresses to some of the listings, and published the combined result. Rural sued and lost. The Supreme Court declared that mere alphabetical listings and other unoriginal assemblies of data cannot be copyrighted. + +_1 It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” It is, rather, “the essence of copyright,” and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “to promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler’s selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.~{ Feist Publications, Inc. v. Rural Telephone Service Co. , 499 U.S. 340 (1991). }~ + +Feist was not as revolutionary as some critics claimed it to be. Most of the appeals courts in the United States had long held this to be the case. As the Court pointed out in the passage above, it is a fundamental tenet of the U.S. intellectual property system that neither facts nor ideas can be owned. Feist merely reiterated that point clearly and stressed that it was not just a policy choice, it was a constitutional requirement—a limit imposed by the Constitution’s grant of power to Congress to make copyright and patent laws. + +Daily politics cares little for the limitations imposed by constitutions or for the structural principle the Court describes—that we should leave facts free for others to build upon. Since 1991, a few database companies have lobbied the Congress strenuously and continuously to create a special database right over facts. Interestingly, apart from academics, scientists, and civil libertarians, many database companies, and even those well-known property haters, the U.S. Chamber of Commerce, oppose the creation of such a right. They believe that database providers can adequately protect themselves with contracts or technical means such as passwords, can rely on providing tied services, and so on. Moreover, they argue that strong database protection may make it harder to generate databases in the first place; the facts you need may be locked up. We need to focus on the inputs as well as the outputs of the process—a point I have tried to make throughout this book. The pressure to create a new right continues, however, aided by cries that the United States must “harmonize” with Europe, where, you will remember, compilations of facts are strongly protected by intellectual property rights, even if their arrangement is unoriginal. + +So here we have our natural experiment. One major economy rejects such protection and resists pressure to create a new right. A different major economic region, at a comparable level of development, institutes the right with the explicit claim that it will help to produce new databases and make that segment of the economy more competitive. Presumably government economists in the United States and the European Union have been hard at work ever since, seeing if the right actually worked? Well, not exactly. + +Despite the fact that the European Commission has a legal obligation to review the Database Directive for its effects on competition, it was more than three years late issuing its report. At first, during the review process, no attention was paid to the actual evidence of whether the Directive helps or hurts the European Union, or whether the database industry in the United States has collapsed or flourished. That is a shame, because the evidence was there and it was fairly shocking. Yet finally, at the end of the process, the Commission did turn to the evidence, as I will recount, and came to a remarkable conclusion—which was promptly stifled for political reasons. But we are getting ahead of ourselves. + +How do we frame the empirical inquiry? Intellectual property rights allow the creation of state-backed monopolies, and “the general tendency of monopolies,” as Macaulay pointed out, is “to make articles scarce, to make them dear, and to make them bad.” Monopolies are an evil, but they must sometimes be accepted when they are necessary to the production of some good, some particular social goal. In this case, the “evil” is obviously going to be an increase in the price of databases and the legal ability to exclude competitors from their use—that, after all, is the point of granting the new right. This right of exclusion may then have dynamic effects, hampering the ability of subsequent innovators to build on what went before. The “good” is that we are supposed to get lots of new databases, databases that we would not have had but for the existence of the database right. + +If the database right were working, we would expect positive answers to three crucial questions. First, has the European database industry’s rate of growth increased since 1996, while the U.S. database industry has languished? (The drop-off in the U.S. database industry ought to be particularly severe after 1991 if the proponents of database protection are correct; they argued the Feist case was a change in current law and a great surprise to the industry.) + +Second, are the principal beneficiaries of the database right in Europe producing databases they would not have produced otherwise? Obviously, if a society is handing over a database right for a database that would have been created anyway, it is overpaying—needlessly increasing prices for consumers and burdens for competitors. This goes to the design of the right—has it been crafted too broadly, so that it is not being targeted to those areas where it is needed to encourage innovation? + +Third, and this one is harder to judge, is the new right promoting innovation and competition rather than stifling it? For example, if the existence of the right allowed a one-time surge of newcomers to the market who then use their rights to discourage new entrants, or if we promoted some increase in databases but made scientific aggregation of large amounts of data harder overall, then the database right might actually be stifling the innovation it is designed to foment. + +Those are the three questions that any review of the Database Directive must answer. But we have preliminary answers to those three questions and they are either strongly negative or extremely doubtful. + +Are database rights necessary for a thriving database industry? The answer appears to be no. In the United States, the database industry has grown more than twenty-five-fold since 1979 and—contrary to those who paint the Feist case as a revolution—for that entire period, in most of the United States, it was clear that unoriginal databases were not covered by copyright. The figures are even more interesting in the legal database market. The two major proponents of database protection in the United States are Reed Elsevier, the owner of Lexis, and Thomson Publishing, the owner of Westlaw. Fascinatingly, both companies made their key acquisitions in the U.S. legal database market after the Feist decision, at which point no one could have thought unoriginal databases were copyrightable. This seems to be some evidence that they believed they could make money even without a database right. How? In the old-fashioned way: competing on features, accuracy, tied services, making users pay for entry to the database, and so on. + +If those companies believed there were profits to be made, they were right. Jason Gelman, a former Duke student, pointed out in a recent paper that Thomson’s legal regulatory division had a profit margin of over 26 percent for the first quarter of 2004. Reed Elsevier’s 2003 profit margin for LexisNexis was 22.8 percent. Both profit margins were significantly higher than the company average and both were earned primarily in the $6 billion U.S. legal database market, a market which is thriving without strong intellectual property protection over databases. (First rule of thumb for regulators: when someone with a profit margin over 20 percent asks you for additional monopoly protection, pause before agreeing.) + +What about Europe? There is some good news for the proponents of database protection. As Hugenholtz, Maurer, and Onsrud point out in a nice article in Science magazine, there was a sharp, one-time spike in the number of companies entering the European database market immediately following the implementation of the Directive in member states.~{ Stephen M. Maurer, P. Bernt Hugenholtz, and Harlan J. Onsrud, “Europe’s Database Experiment,” Science 294 (2001): 789–790. }~ Yet their work, and “Across Two Worlds,”~{ Stephen M. Maurer, “Across Two Worlds: US and European Models of Database Protection,” paper commissioned by Industry Canada (2001). }~ a fascinating study by Maurer, suggests that the rate of entry then fell back to levels similar to those before the directive. Maurer’s analysis shows that the attrition rate was also very high in some European markets in the period following the passage of the directive—even with the new right, many companies dropped out. + +At the end of the day, the British database industry—the strongest performer in Europe—added about two hundred databases in the three years immediately after the implementation of the directive. In France, there was little net change in the number of databases and the number of providers fell sharply. In Germany, the industry added nearly three hundred databases immediately following the directive—a remarkable surge—about two hundred of which rapidly disappeared. During the same period, the U.S. industry added about nine hundred databases. Bottom line? Europe’s industry did get a one-time boost and some of those firms have stayed in the market; that is a benefit, though a costly one. But database growth rates have gone back to predirective levels, while the anticompetitive costs of database protection are now a permanent fixture of the European landscape. The United States, by contrast, gets a nice steady growth rate in databases without paying the monopoly cost. (Second rule of thumb for regulators: Do no harm! Do not create rights without strong evidence that the incentive effect is worth the anticompetitive cost.) + +Now the second question. Is the Database Directive encouraging the production of databases we would not have gotten otherwise? Here the evidence is clear and disturbing. Again, Hugenholtz et al. point out that the majority of cases brought under the directive have been about databases that would have been created anyway—telephone numbers, television schedules, concert times. A review of more recent cases reveals the same pattern. These databases are inevitably generated by the operation of the business in question and cannot be independently compiled by a competitor. The database right simply serves to limit competition in the provision of the information. Recently, the European Court of Justice implicitly underscored this point in a series of cases concerning football scores, horse racing results, and so on. Rejecting a protectionist and one-sided opinion from its Advocate General, the court ruled that the mere running of a business which generates data does not count as “substantial investment” sufficient to trigger the database right. It would be nice to think that this is the beginning of some skepticism about the reach of the directive. Yet the court provides little discussion of the economic reasons behind its interpretation; the analysis is merely semantic and definitional, a sharp contrast to its competition decisions. + +So what kinds of creations are being generated by this bold new right? The answer is somewhere between bathos and pathos. Here are some of the wonderful “databases” that people found it worthwhile litigating over: a Web site consisting of a collection of 259 hyperlinks to “parenting resources,” a collection of poems, an assortment of advertisements, headings referring to local news, and charts of popular music. The sad list goes on and on. The European Commission might ask itself whether these are really the kind of “databases” that we need a legal monopoly to encourage and that we want to tie up judicial resources protecting. The point that many more such factual resources can be found online in the United States without any legalized database protection also seems worthy of note. At the very least, the evidence indicates that the right is drawn much too broadly and triggered too easily in ways that produce litigation but little social benefit. + +Now, in one sense, these lawsuits over trivial collections of hyperlinks and headlines might be seen as irrelevant. They may indicate we are handing out rights unnecessarily—did we really need a legal monopoly, and court involvement, to get someone to compile hyperlinks on a Web page? But it is hard to see social harm. As with the patents over “sealed crustless” peanut butter sandwiches or “methods of swinging on a swing,” we may shake our heads at the stupidity of the system, but if the problems consist only of trivial creations, at least we are not likely to grieve because some vital piece of information was locked up. But we should not be so quick to declare such examples irrelevant. They tend to show that the system for drawing the boundaries of the right is broken—and that is of general concern, even if the issue at hand is not. + +Finally, is the database right encouraging scientific innovation or hurting it? Here the evidence is merely suggestive. Scientists have claimed that the European database right, together with the perverse failure of European governments to take advantage of the limited scientific research exceptions allowed by the directive, have made it much harder to aggregate data, to replicate studies, and to judge published articles. In fact, academic scientific bodies have been among the strongest critics of database protection. But negative evidence, by its nature, is hard to produce; “show me the science that did not get done!” Certainly, both U.S. science and commerce have benefited extraordinarily from the openness of U.S. data policy. I will deal with this issue in the next part of this chapter. + +If the United States does not give intellectual property protection to raw data, to facts, how is it that the database industry has managed to thrive here and to do better than in Europe, which has extremely strong protection? The economists described in Chapter 1 would surely tell us that this is a potential “public goods” problem. If it is hard to exclude others from the resource—it is cheap and easy to copy—and if the use of the resource is not “rival”—if I don’t use up your facts by consulting them—then we ought to see the kind of dystopia economists predict. What would that consist of? First it might result in underproduction. Databases with a social value higher than their cost of creation would not get made because the creator could not get an adequate return on investment. In some cases it might even lead to the reverse—overproduction, where each party creates the database for itself. We get a social overinvestment to produce the resource because there is no legal right to exclude others from it. If you gave the first creator an intellectual property right over the data, they could sell to subsequent users at a price lower than their own cost to create the database. Everyone would win. But the United States did not give the intellectual property right and yet its database industry is flourishing. There are lots of commercial database providers and many different kinds of databases. How can this be? Is the economic model wrong? + +The answer to that is no, the model is not wrong. It is, however, incomplete and all too often applied in sweeping ways without acknowledging that its basic assumptions may not hold in a particular case. That sounds vague. Let me give a concrete example. Westlaw is one of the two leading legal database providers and, as I mentioned before, one of the key proponents of creating intellectual property rights over unoriginal databases. (There is considerable question whether such a law would be constitutional in the United States, but I will pass over that argument for the moment.) Westlaw’s “problem” is that much of the material that it provides to its subscribers is not covered by copyright. Under Section 105 of the U.S. Copyright Act, works of the federal government cannot be copyrighted. They pass immediately into the public domain. Thus all the federal court decisions, from district courts all the way up to the Supreme Court, all the federal statutes, the infinite complexity of the Federal Register, all this is free from copyright. This might seem logical for government-created work, for which the taxpayer has already paid, but as I will explain in the next section of the chapter, not every country adopts such a policy. + +West, another Thomson subsidiary that owns Westlaw, publishes the standard case reporter series. When lawyers or judges refer to a particular opinion, or quote a passage within an opinion, they will almost always use the page number of the West edition. After all, if no one else can find the cases or statutes or paragraphs of an opinion that you are referring to, legal argument is all but impossible. (This might seem like a great idea to you. I beg to differ.) As electronic versions of legal materials became more prevalent, West began getting more competition. Its competitors did two things that West found unforgivable. First, they frequently copied the text of the cases from West’s electronic services, or CD-ROMs, rather than retyping them themselves. Since the cases were works of the federal government, this was perfectly legal provided the competitors did not include West’s own material, such as summaries of the cases written by its employees or its key number system for finding related issues. Second, the competitors would include, within their electronic editions, the page numbers to West’s editions. Since lawyers need to cite the precise words or arguments they are referring to, providing the raw opinion alone would have been all but useless. Because West’s page numbers were one of the standard ways to cite case opinions, competitors would indicate where the page breaks on the printed page would have been, just as West did in its own databases. + +West’s reaction to all of this was exactly like Apple’s reaction in the story I told in Chapter 5 about the iPod or like Rural’s reaction to the copying of its phone directory. This was theft! They were freeloading on West’s hard work! West had mixed its sweat with these cites, and so should be able to exclude other people from them! Since it could not claim copyright over the cases, West claimed copyright over the order in which they were arranged, saying that when its competitors provided its page numbers for citation purposes, they were infringing that copyright. + +In the end, West lost its legal battles to claim copyright over the arrangement of the collections of cases and the sequence in which they were presented. The Court held that, as with the phone directory, the order in which the cases were arranged lacked the minimum originality required to sustain a copyright claim.~{ Matthew Bender & Co. v. West Publishing Co. , 158 F.3d 674 (2nd Cir. 1998). }~ At this stage, according to the standard public goods story, West’s business should have collapsed. Unable to exclude competitors from much of the raw material of its databases, West would be undercut by competitors. More importantly, from the point of view of intellectual property policy, its fate would deter potential investors in other databases—databases that we would lose without even knowing they could have been possible. Except that is not the way it turned out. West has continued to thrive. Indeed, its profits have been quite remarkable. How can this be? + +The West story shows us three ways in which we can leap too quickly from the abstract claim that some information goods are public goods—nonexcludable and nonrival—to the claim that this particular information good has those attributes. The reality is much more complex. Type www.westlaw.com into your Internet browser. That will take you to the home page of West’s excellent legal research service. Now, I have a password to that site. You probably do not. Without a password, you cannot get access to West’s site at all. To the average consumer, the password acts as a physical or technical barrier, making the good “excludable”—that is, making it possible to exclude someone from it without invoking intellectual property rights. But what about competitors? They could buy access and use that access to download vast quantities of the material that is unprotected by copyright. Or could they? Again, West can erect a variety of barriers, ranging from technical limits on how much can be downloaded to contractual restrictions on what those who purchase its service can do (“No copying every federal case,” for example). + +Let’s say the competitor somehow manages to get around all this. Let’s say it somehow avoids copying the material that West does have a copyright over—such as the headnotes and case synopses. The competitor launches their competing site at lower prices amidst much fanfare. Do I immediately and faithlessly desert West for a lower-priced competitor? Not at all. First of all, there are lots of useful things in the West database that are covered by copyright—law review articles and certain treatises, for example. The competitor frequently cannot copy those without coming to the same sort of agreements that West has with the copyright holders. For much legal research, that secondary material is as important as the cases. If West has both, and the competitor only one, I will stick with West. Second, West’s service is very well designed. (It is only their copyright policies I dislike, not the product.) If a judge cites a law review article in a case, West will helpfully provide a hyperlink to the precise section of the article she is referring to. I can click on it and in a second see what the substance of the argument is. The reverse is true if a law review article cites a statute or a case. Cases have “flags” on them indicating whether they have been overruled or cited approvingly in subsequent decisions. In other words, faced with the competitive pressure of those who would commoditize their service and provide it at lower cost, West has done what any smart company would: added features and competed by offering a superior service. Often it has done so by “tying” its uncopyrightable data structures to its huge library of copyrighted legal material. + +The company that challenged Westlaw in court was called Hyperlaw. It won triumphantly. The courts declared that federal cases and the page numbers in the West volumes were in the public domain. That decision came in 1998 and Westlaw has lobbied hard since then to reverse it by statute, to create some version of the Database Directive in the United States. To date, they have failed. The victor, Hyperlaw, has since gone out of business. Westlaw has not. + +This little story contains a larger truth. It is true that innovation and information goods will, in general, tend to be less excludable and less rival than a ham sandwich, say. But, in practice, some of them will be linked or connected in their social setting to other phenomena that are highly excludable. The software can easily be copied—but access to the help lines can be restricted with ease. Audiences cannot easily be excluded from viewing television broadcasts, but advertisers can easily be excluded from placing their advertisements in those programs. The noncopyrightable court decisions are of most use when embedded within a technical system that gives easy access to other material—some of it copyrighted and all of it protected by technical measures and contractual restrictions. The music file can be downloaded; the band’s T-shirt or the experience of the live concert cannot. Does this mean that we never need an intellectual property right? Not at all. But it does indicate that we need to be careful when someone claims that “without a new intellectual property right I am doomed.” + +One final story may drive home the point. When they read Feist v. Rural, law students often assume that the only reason Feist offered to license the white pages listings from Rural is because they (mistakenly) thought they were copyrighted. This is unlikely. Most good copyright lawyers would have told you at the time of the Feist case that the “sweat of the brow” decisions that gave copyright protection based on hard work were not good law. Most courts of appeals had said so. True, there was some legal uncertainty, and that is often worth paying to avoid. But switch the question around and suppose it is the day after the Supreme Court decides the Feist case, and Feist is heading off into another market to try to make a new regional phone directory. Do they now just take the numbers without paying for them, or do they still try to negotiate a license? The latter is overwhelmingly likely. Why? Well, for one thing, they would get a computer-readable version of the names and would not have to retype or optically scan them. More importantly, the contract could include a right to immediate updates and new listings. + +The day after the Feist decision, the only thing that had changed in the telephone directory market was that telephone companies knew for sure, rather than merely as a probability, that if they refused to license, their competitors could laboriously copy their old listings without penalty. The nuclear option was no longer available. Maybe the price demanded would be a little lower. But there would still be lots of good reasons for Feist to buy the information, even though it was uncopyrighted. You do not always need an intellectual property right to make a deal. Of course, that is not the whole story. Perhaps the incentives provided by other methods are insufficient. But in the U.S. database industry they do not seem to have been. Quite the contrary. The studies we have on the European and the American rules on database rights indicate that the American approach simply works better. + +I was not always opposed to intellectual property rights over data. Indeed, in a book written before the enactment of the Database Directive, I said that there was a respectable economic argument that such protection might be warranted and that we needed research on the issue.~{ James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996). }~ Unfortunately, Europe got the right without the research. The facts are now in. If the European Database Directive were a drug, the government would be pulling it from the market until its efficacy and harmfulness could be reassessed. At the very least, the Commission needed a detailed empirical review of the directive’s effects, and needs to adjust the directive’s definitions and fine-tune its limitations. But there is a second lesson. There is more discussion of the empirical economic effects of the Database Directive in this chapter than in the six-hundred-page review of the directive that the European Commission paid a private company to conduct, and which was the first official document to consider the issue. + +That seemed to me and to many other academics to be a scandal and we said so as loudly as we could, pointing out the empirical evidence suggesting that the directive was not working. Yet if it was a scandal, it was not a surprising one, because the evidence-free process is altogether typical of the way we make intellectual property policy. President Bush is not the only one to make “faith-based” decisions. + +There was, however, a ray of hope. In its official report on the competitive effects of the Database Directive, the European Commission recently went beyond reliance on anecdote and industry testimony and did something aescribed the directive as “a Community creation with no precedent in any international convention.” Using a methodology similar to the one in this chapter on the subject, the Commission found that “the economic impact of the ‘sui generis’ right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases.”~{ First evaluation of Directive 96/9/EC on the legal protection of databases, DG Internal Market and Services Working Paper (Brussels, Belgium: Commission of the European Communities, 2005), 5. }~ + +In fact, their study showed that the production of databases had fallen to pre-directive levels and that the U.S. database industry, which has no such intellectual property right, was growing faster than the European Union’s. The gap appears to be widening. This is consistent with the data I had pointed out in newspaper articles on the subject, but the Commission’s study was more recent and, if anything, more damning. + +Commission insiders hinted that the study may be part of a larger—and welcome—transformation in which a more professional and empirical look is being taken at the competitive effects of intellectual property protection. Could we be moving away from faith-based policy in which the assumption is that the more new rights we create, the better off we will be? Perhaps. But unfortunately, while the report was a dramatic improvement, traces of the Commission’s older predilection for faith-based policy and voodoo economics still remain. + +The Commission coupled its empirical study of whether the directive had actually stimulated the production of new databases with another intriguing kind of empiricism. It sent out a questionnaire to the European database industry asking if they liked their intellectual property right—a procedure with all the rigor of setting farm policy by asking French farmers how they feel about agricultural subsidies. More bizarrely still, the report sometimes juxtaposed the two studies as if they were of equivalent worth. Perhaps this method of decision making could be expanded to other areas. We could set communications policy by conducting psychoanalytic interviews with state telephone companies—let current incumbents’ opinions determine what is good for the market as a whole. “What is your emotional relationship with your monopoly?” “I really like it!” “Do you think it hurts competition?” “Not at all!” + +There are also a few places where the reasoning in the report left one scratching one’s head. One goal of the database right was to help close the gap between the size of the European and U.S. database markets. Even before the directive, most European countries already gave greater protection than the United States to compilations of fact. The directive raised the level still higher. The theory was that this would help build European market share. Of course, the opposite is also possible. Setting intellectual property rights too high can actually stunt innovation. In practice, as the Commission’s report observes, “the ratio of European / U.S. database production, which was nearly 1:2 in 1996, has become 1:3 in 2004.”~{ Ibid., 22. }~ Europe had started with higher protection and a smaller market. Then it raised its level of protection and lost even more ground. Yet the report was oddly diffident about the possibility that the U.S. system actually works better. + +In its conclusion, the report offered a number of possibilities, including repealing the directive, amending it to limit or remove the “sui generis” right while leaving the rest of the directive in place, and keeping the system as it is. The first options are easy to understand. Who would want to keep a system when it is not increasing database production, or European market share, and, indeed, might be actively harmful? Why leave things as they are? The report offers several reasons. + +First, database companies want to keep the directive. (The report delicately notes that their “endorsement . . . is somewhat at odds with the continued success of U.S. publishing and database production that thrives without . . . [such] protection,” but nevertheless appears to be “a political reality.”) Second, repealing the directive would reopen the debate on what level of protection is needed. Third, change may be costly. + +Imagine applying these arguments to a drug trial. The patients in the control group have done better than those given the drug and there is evidence that the drug might be harmful. But the drug companies like their profits and want to keep the drug on the market. Though “somewhat at odds” with the evidence, this is a “political reality.” Getting rid of the drug would reopen the debate on the search for a cure. Change is costly—true. But what is the purpose of a review if the status quo is always to be preferred? + +The final result? Faced with what Commission staff members tell me was a tidal wave of lobbying from publishers, the Commission quietly decided to leave the directive unchanged, despite the evidence. The result itself is not remarkable. Industry capture of a regulatory apparatus is hardly a surprise. What is remarkable is that this is one of the first times any entity engaged in making intellectual property policy on the international level has even looked seriously at the empirical evidence of that policy’s effects. + +To be sure, figures are thrown around in hearings. The software industry will present studies showing, for example, that it has lost billions of dollars because of illicit copying. It has indeed lost profits relative to what it could get with all the benefits of cheaper copying and transmission worldwide and with perfect copyright enforcement as well. (Though the methodology of some of the studies, which assumes that each copier would have paid full price—is ridiculous.) But this simply begs the question. A new technology is introduced that increases the size of your market and decreases your costs dramatically, but also increases illicit copying. Is this cause for state intervention to increase your level of rights or the funds going toward enforcement of copyright law, as opposed to any other law enforcement priority? The question for empirical analysis, both before and after a policy change, should be “Is this change necessary in order to maintain incentives for production and distribution? Will whatever benefits it brings outweigh the costs of static and dynamic losses—price increases to consumers and impediments to future innovators?” The content companies might still be able to justify the extensions of their rights. But they would be doing so in the context of a rational, evidence-based debate about the real goals of intellectual property, not on the assumption that they have a natural right to collect all the economic surplus gained by a reduction in the costs of reproduction and distribution. + +2~ Does Public Information Want To Be Free? + +The United States has much to learn from Europe about information policy. The ineffectively scattered U.S. approach to data privacy, for example, produces random islands of privacy protection in a sea of potential vulnerability. Until recently, your video rental records were better protected than your medical records. Europe, by contrast, has tried to establish a holistic framework, a much more effective approach. But there are places where the lessons should flow the other way. The first one, I have suggested, is database protection. The second is a related but separate issue: the legal treatment of publicly generated data, the huge, and hugely important, flow of information produced by government-funded activities—from ordnance survey maps and weather data to state-produced texts, traffic studies, and scientific information. How is this flow of information distributed? The norm turns out to be very different in the United States and in Europe. + +In one part of the world, state-produced data flows are frequently viewed as revenue sources. They are often copyrighted or protected by database rights. Many of the departments which produce them attempt to make a profit or at least to recover their entire operating costs through user fees. It is heresy to suggest that the taxpayer has already paid for the production of this data and should not have to do so twice. The other part of the world practices a benign form of information socialism. By law, any text produced by the central government is free from copyright and passes immediately into the public domain. The basic norm is that public data flows should be available at the cost of reproduction alone. + +It is easy to guess which area is which. The United States is surely the profit- and property-obsessed realm, Europe the place where the state takes pride in providing data as a public service? No, actually, it is the other way around. + +Take weather data. The United States makes complete weather data available to all at the cost of reproduction. If the superb government Web sites and data feeds are insufficient, for the cost of a box of blank DVDs you can have the entire history of weather records across the continental United States. European countries, by contrast, typically claim government copyright over weather data and often require the payment of substantial fees. Which approach is better? I have been studying the issue for fifteen years, and if I had to suggest a single article it would be the magisterial study by Peter Weiss called “Borders in Cyberspace,” published by the National Academies of Science.~{ In Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium (Washington, D.C.: National Academies Press, 2004), 69–73, available at http://books.nap.edu/openbook.php?record_id=11030&page=69. }~ Weiss shows that the U.S. approach generates far more social wealth. True, the information is initially provided for free, but a thriving private weather industry has sprung up which takes the publicly funded data as its raw material and then adds value to it. The U.S. weather risk management industry, for example, is more than ten times bigger than the European one, employing more people, producing more valuable products, generating more social wealth. Another study estimates that Europe invests 9.5 billion Euros in weather data and gets approximately 68 billion back in economic value—in everything from more efficient farming and construction decisions to better holiday planning—a sevenfold multiplier. The United States, by contrast, invests twice as much—19 billion—but gets back a return of 750 billion Euros, a thirty-nine-fold multiplier. + +Other studies suggest similar patterns elsewhere, in areas ranging from geospatial data to traffic patterns and agriculture. The “free” information flow is better at priming the pump of economic activity. + +Some readers may not thrill to this way of looking at things because it smacks of private corporations getting a “free ride” on the public purse—social wealth be damned. But the benefits of open data policies go further. Every year the monsoon season kills hundreds and causes massive property damage in Southeast Asia. One set of monsoon rains alone killed 660 people in India and left 4.5 million homeless. Researchers seeking to predict the monsoon sought complete weather records from the United States and Europe so as to generate a model based on global weather patterns. The U.S. data was easily and cheaply available at the cost of reproduction. The researchers could not afford to pay the price asked by the European weather services, precluding the “ensemble” analysis they sought to do. Weiss asks rhetorically, “What is the economic and social harm to over 1 billion people from hampered research?” In the wake of the outpouring of sympathy for tsunami victims in the same region, this example seems somehow even more tragic. Will the pattern be repeated with seismographic, cartographic, and satellite data? One hopes not. + +The European attitude may be changing. Competition policy has already been a powerful force in pushing countries to rethink their attitudes to government data. The European Directive on the Reuse of Public Sector Information takes large strides in the right direction, as do studies by the Organization for Economic Co-operation and Development (OECD) and several national initiatives.~{ Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the Re-use of Public Sector Information, Official Journal of the European Union, L 345 (31.12.2003): 90–96; Public Sector Modernisation: Open Government, Organization for Economic Co-operation and Development (2005), available at http://www.oecd.org/dataoecd/1/35/34455306.pdf; The Socioeconomic Effects of Public Sector Information on Digital Networks: Toward a Better Understanding of Different Access and Reuse Policies (February 2008 OECD conference), more information at http://www.oecd.org/document/48/0,3343,en_2649_201185_40046832_1_1_1_1,00.html; and the government sites of individual countries in the European Union such as Ireland (http://www.psi.gov.ie/). }~ Unfortunately, though, most of these follow the same pattern. An initially strong draft is watered down and the utterly crucial question of whether data should be provided at the marginal cost of reproduction is fudged or avoided. This is a shame. Again, if we really believed in evidence-based policy making, the debate would be very different. + +2~ Breaking the Deal + +What would the debate look like if we took some of the steps I mention here? Unfortunately there are very few examples of evidence-based policy making, but the few that do exist are striking. + +In 2006, the government-convened Gowers Review of intellectual property policy in the United Kingdom considered a number of proposals on changes to copyright law, including a retrospective extension of sound recording copyright terms.~{ Andrew Gowers, Gowers Review of Intellectual Property (London: HMSO, 2006), available at http://www.hm-treasury.gov.uk/d/pbr06_gowers_report_755.pdf [Ed. note: originally published at http://www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf, the link has changed]. }~ The copyright term for sound recordings in the United Kingdom is fifty years. (It is longer for compositions.) At the end of the fifty-year period, the recording enters the public domain. If the composition is also in the public domain—the great orchestral works of Beethoven, Brahms, and Mozart, for example, or the jazz classics of the early twentieth century—then anyone can copy the recording. This means we could make it freely available in an online repository for music students throughout Britain—perhaps preparing the next generation of performers—or republish it in a digitally cleansed and enhanced edition. If the composition is still under copyright, as with much popular music, then the composer is still entitled to a licensing fee, but now any music publisher who pays that fee can reissue the work—introducing competition and, presumably, bringing down prices of the recording. + +The recording industry, along with successful artists such as Sir Cliff Richard and Ian Anderson of Jethro Tull, wished to extend the fifty-year term to ninety-five years, or perhaps even longer—the life of the performer, plus seventy years. This proposal was not just for new recordings, but for the ones that have already been made. + +Think of the copyright system as offering a deal to artists and record companies. “We will enlist the force of the state to give you fifty years of monopoly over your recordings. During that time, you will have the exclusive right to distribute and reproduce your recording. After that time, it is available to all, just as you benefited from the availability of public domain works from your predecessors. Will you make records under these terms?” + +Obviously, fifty years of legalized exclusivity was enough of an incentive to get them to make the music in the first place. We have the unimpeachable evidence that they actually did. Now they want to change the terms of the deal retrospectively. They say this will “harmonize” the law internationally, give recordings the same treatment as compositions, help struggling musicians, and give the recording industry some extra money that it might spend on developing new talent. (Or on Porsches, shareholder dividends, and plastic ducks. If you give me another forty-five years of monopoly rent, I can spend it as I wish.) + +Change the context and think about how you would react to this if the deal was presented to you personally. You hired an artist to paint a portrait. You offered $500. He agreed. You had a deal. He painted the painting. You liked it. You gave him the money. A few years later he returned. “You owe me another $450,” he said. + +You both looked at the contract. “But you agreed to paint it for $500 and I paid you that amount.” He admitted this was true, but pointed out that painters in other countries sometimes received higher amounts, as did sculptors in our own country. In fact, he told you, all painters in our country planned to demand another $450 for each picture they had already painted as well as for future pictures. This would “harmonize” our prices with other countries, put painting on the same footing as sculpture, and enable painters to hire more apprentices. His other argument was that painters often lost money. Only changing the terms of their deals long after they were struck could keep them in business. Paying the money was your duty. If you did not pay, it meant that you did not respect art and private property. + +You would find these arguments absurd. Yet they are the same ones the record industry used, relying heavily on the confusions against which this book has warned. Is the record companies’ idea as outrageous as the demands of my imaginary painter? It is actually worse. + +The majority of sound recordings made more than forty years ago are commercially unavailable. After fifty years, only a tiny percentage are still being sold. It is extremely hard to find the copyright holders of the remainder. They might have died, gone out of business, or simply stopped caring. Even if the composer can be found, or paid through a collection society, without the consent of the holder of the copyright over the musical recording, the work must stay in the library. These are “orphan works”—a category that probably comprises the majority of twentieth-century cultural artifacts. + +Yet as I pointed out earlier, without the copyright holder’s permission, it is illegal to copy or redistribute or perform these works, even if it is done on a nonprofit basis. The goal of copyright is to encourage the production of, and public access to, cultural works. It has done its job in encouraging production. Now it operates as a fence to discourage access. As the years go by, we continue to lock up 100 percent of our recorded culture from a particular year in order to benefit an ever-dwindling percentage—the lottery winners—in a grotesquely inefficient cultural policy. + +Finally, fifty years after they were made, sound recordings enter the public domain in the United Kingdom (though as I pointed out earlier, licensing fees would still be due to the composer if the work itself was still under copyright). Now anyone—individual, company, specialist in public domain material—could offer the work to the public. But not if the record companies can persuade the government otherwise. Like my imaginary painter, they want to change the terms of the deal retrospectively. But at least the painter’s proposal would not make the vast majority of paintings unavailable just to benefit a tiny minority of current artists. + +The recording industry’s proposal for retrospective extension was effectively a tax on the British music-buying public to benefit the copyright holders of a tiny proportion of sound recordings. The public loses three times. It loses first when it is forced to continue to pay monopoly prices for older, commercially available music, rather than getting the benefit of the bargain British legislators originally offered: fifty years of exclusivity, then the public domain. The public loses a second time when, as a side effect, it is denied access to commercially unavailable music; no library or niche publisher can make the forgotten recordings available again. Finally, the public loses a third time because allowing retrospective extensions will distort the political process in the future, leading to an almost inevitable legislative capture by the tiny minority who find that their work still has commercial value at the end of the copyright term they were originally granted. As Larry Lessig has pointed out repeatedly, the time to have the debate about the length of the copyright term is before we know whose works will survive commercially. + +The whole idea is very silly. But if this is the silly idea we wish to pursue, then simply increase the income tax proportionately and distribute the benefits to those record companies and musicians whose music is still commercially available after fifty years. Require them to put the money into developing new artists—something the current proposal does not do. Let all the other recordings pass into the public domain. + +Of course, no government would consider such an idea for a moment. Tax the public to give a monopoly windfall to those who already hit the jackpot, because they claim their industry cannot survive without retrospectively changing the terms of its deals? It is indeed laughable. Yet it is a far better proposal than the one that was presented to the Gowers Review. + +What happened next was instructive. The Review commissioned an economic study of the effects of copyright term extension—both prospective and retrospective—on recorded music from the University of Cambridge’s Centre for Intellectual Property and Information Law. The resulting document was a model of its kind.~{ University of Cambridge Centre for Intellectual Property and Information Law, Review of the Economic Evidence Relating to an Extension of Copyright in Sound Recordings (2006), available at http://www.hm-treasury.gov.uk/d/gowers_cipilreport.pdf [Ed. note: originally published at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf, the link has changed]. }~ + +With painstaking care and a real (if sometimes fruitless) attempt to make economic arguments accessible to ordinary human beings, the study laid out the costs and benefits of extending the copyright term over sound recordings. It pointed out that the time to measure the value of a prospective term extension is at the moment the copyright is granted. Only then does it produce its incentive effects. The question one must ask is how much value today does it give an artist or record company to have their copyright extended by a year at the end of the existing period of protection. Then one must look to see whether the benefits of the added incentive outweigh the social costs it imposes. To put it another way, if the state were selling today the rights to have protection from year fifty to year ninety-five, how much would a rational copyright holder pay, particularly knowing that there is only a small likelihood the work will even be commercially available to take advantage of the extension? Would that amount be greater than the losses imposed on society by extending the right? + +Obviously, the value of the extension is affected by our “discount rate”—the annual amount by which we must discount a pound sterling in royalties I will not receive for fifty-one years in order to find its value now. Unsurprisingly, one finds that the value of that pound in the future is tiny at the moment when it matters—today—in the calculation of an artist or distributor making the decision whether to create. Conservative estimates yield a present value between 3 percent and 9 percent of the eventual amount. By that analysis, a pound in fifty years is worth between three and nine pence to you today, while other estimates have the value falling below one penny. This seems unlikely to spur much creativity at the margin. Or to put it in the more elegant language of Macaulay, quoted in Chapter 2: + +_1 I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson’s works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor’s servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman’s Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook’s shop underground.~{ Ibid., 21–22. }~ + +The art form is different, but the thought of a 1960s Cliff Richard or Ian Anderson being “cheered under a fit of the spleen” by the prospect of a copyright extension fifty years hence is truly a lovely one. + +Considering all these factors, as well as the effects on investment in British versus American music and on the balance of trade, the Cambridge study found that the extension would cost consumers between 240 and 480 million pounds, far more than the benefits to performers and recording studios. (In practice, the report suggested, without changes in the law, most of the benefits would not have gone to the original recording artist in any case.) It found prospective extension led to a clear social welfare loss. What of retrospective extension? + +The report considered, and found wanting, arguments that retrospective extension is necessary to encourage “media migration”—the digitization of existing works, for example. In fact, most studies have found precisely the reverse—that public domain works are more available and more frequently adapted into different media. (Look on Amazon.com for a classic work that is out of copyright—Moby-Dick, for example—and see how many adaptations and formats are available.) It also rejected the argument that harmonization alone was enough to justify extension—retrospective or prospective—pointing out the considerable actual variation in both term and scope of rights afforded to performers in different countries. Finally, it warned of the “hidden ‘ratcheting’ effect of harmonisation which results from the fact that harmonization is almost invariably upwards.” Its conclusion was simple: + +_1 [R]etrospective term extensions reduce social welfare. Thus, in this case, it would seem that basic theory alone is sufficient to provide strong, and unambiguous, guidance for policy-makers. . . . We therefore see no reason to quarrel with the consensus of the profession on this issue which as summed up by Akerlof et al. . . . [states] categorically that . . . “[retrospective] extension provides essentially no incentive to create new works. Once a work is created, additional compensation to the producer is simply a windfall.”~{ Ibid. }~ + +The Gowers Review agreed. Its fourth recommendation read simply, “Policy makers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively.” Perhaps more important, though, was the simple paragraph at the front of the document captioned “The Approach of the Review.” It begins thus: “The Review takes an evidence-based approach to its policy analysis and has supplemented internal analysis by commissioning external experts to examine the economic impact of changes. . . .” + +Why specify that one was taking an “evidence-based” approach? At first, the comment seems unnecessary. What other approach would one take? Anecdotal? Astrological? But there is a framework in which empirical evidence of the effects of policy simply seems irrelevant—one based on natural right. When the Review was given to the House of Commons Select Committee on Culture, Media and Sport, that frame of mind was much in evidence: + +_1 The Gowers Review undertook an extensive analysis of the argument for extending the term. On economic grounds, the Review concluded that there was little evidence that extension would benefit performers, increase the number of works created or made available, or provide incentives for creativity; and it noted a potentially negative effect on the balance of trade. . . . Gowers’s analysis was thorough and in economic terms may be correct. It gives the impression, however, of having been conducted entirely on economic grounds. We strongly believe that copyright represents a moral right of a creator to choose to retain ownership and control of their own intellectual property. We have not heard a convincing reason why a composer and his or her heirs should benefit from a term of copyright which extends for lifetime and beyond, but a performer should not. . . . Given the strength and importance of the creative industries in the U.K., it seems extraordinary that the protection of intellectual property rights should be weaker here than in many other countries whose creative industries are less successful.~{ House of Commons Select Committee on Culture, Media and Sport, Fifth Report (2007), available at http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcumeds/509/50910.htm. }~ + +A couple of things are worth noting here. The first is that the Committee is quite prepared to believe that the effects of term extension would not benefit performers or provide incentives for creativity, and even to believe that it would hurt the balance of trade. The second is the curious argument in the last sentence. Other countries have stronger systems of rights and are less successful. We should change our regime to be more like them! Obviously the idea that a country’s creative industries might be less successful because their systems of rights were stronger does not occur to the Committee for a moment. Though it proclaims itself to be unaffected by economic thought, it is in fact deeply influenced by the “more rights equals more innovation” ideology of maximalism that I have described in these pages. + +Nestling between these two apparently contradictory ideas is a serious argument that needs to be confronted. Should we ignore evidence—even conclusive evidence—of negative economic effects, harm to consumers, and consequences for the availability of culture because we are dealing with an issue of moral right, almost natural right? Must we extend the rights of the artists who recorded those songs (or rather the record companies who immediately acquired their copyrights) because they are simply theirs as a matter of natural justice? Do performers have a natural right to recorded songs either because they have labored on them, mixing their sweat with each track, or because something of their personality is forever stamped into the song? Must we grant an additional forty-five years of commercial exclusivity, not because of economic incentive, but because of natural right? + +Most of us feel the pull of this argument. I certainly do. But as I pointed out in Chapter 2, there are considerable problems with such an idea. First, it runs against the premises of actual copyright systems. In the United States, for example, the Constitution resolutely presents the opposite picture. Exclusive rights are to encourage progress in science and the useful arts. The Supreme Court has elaborated on this point many times, rejecting both labor-based “sweat of the brow” theories of copyright and more expansive visions based on a natural right to the products of one’s genius—whether inventions or novels. Britain, too, has a history of looking to copyright as a utilitarian scheme—though with more reference to, and legal protection of, particular “moral rights” than one finds in the United States. But even in the most expansive “moral rights” legal systems, even in the early days of debate about the rights of authors after the French Revolution, it is accepted that there are temporal limits on these rights. If this is true of authors, it is even more true of performers, who are not granted the full suite of author’s rights in moral rights jurisdictions, being exiled to a form of protection called “neighboring” rights. + +In all of these schemes, there are time limits on the length of the rights (and frequently different ones for different creators—authors, inventors, performers, and so on). Once one has accepted that point, the question of how long they should be is, surely, a matter for empirical and utilitarian analysis. One cannot credibly say that natural rights or the deep deontological structure of the universe gives me a right to twenty-eight or fifty-six or seventy years of exclusivity. The argument must turn instead to a question of consequences. Which limit is better? Once one asks that question, the Gowers Review’s economic assessment is overwhelming, as the Select Committee itself recognized. In the end, the government agreed—noting that a European Union study had found precisely the same thing. The sound recording right should not be extended, still less extended retrospectively. The evidence-free zone had been penetrated. But not for long. As this book went to press, the European Commission announced its support for an even longer Europe-wide extension of the sound recording right. The contrary arguments and empirical evidence were ignored, minimized, explained away. How can this pattern be broken? + +In the next and final chapter, I try to answer that question. I offer a partial explanation for the cognitive and organizational blindnesses that have brought us to this point. I argue that we have much to learn from the history, theory, and organizational practices of the environmental movement. The environmental movement taught us to see “the environment” for the first time, to recognize its importance, and to change the way we thought about ecology, property, and economics in consequence. What we need is an environmentalism of mind, of culture, of information. In the words of my colleague David Lange, we need to “recognize the public domain.” And to save it. + +2~ Chapter 9: Further Reading + +3~ Database Rights + +Mark J. Davison, The Legal Protection of Databases (Cambridge: Cambridge University Press, 2003), provides a fine introduction to the legal, and legalistic, issues surrounding the legal protection of databases. Precisely because of the need to focus on those issues, and that audience, the discussion is internal to the conceptual categories of the various legal systems he discusses, rather than focusing on the external questions I discuss here. Insiders will find the discussion indispensable. Outsiders may find it hermetic. For those readers, an article by Davison and Hugenholtz may be more accessible. It points out the ways in which the European Court of Justice has tried to rein in the database right. Mark J. Davison and P. Bernt Hugenholtz, “Football Fixtures, Horseraces and Spinoffs: The ECJ Domesticates the Database Right,” European Intellectual Property Review 27, no. 3 (2005): 113–118. + +When it comes to the general intellectual framework for thinking about database rights, Jerome Reichman and Pamela Samuelson provide the germinal point of view: J. H. Reichman and Pamela Samuelson, “Intellectual Property Rights in Data?” Vanderbilt Law Review 50 (1997): 51–166. Frequent readers of Reichman will be unsurprised that “take and pay” liability rules make an appearance as a possible solution. Yochai Benkler’s article, “Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information,” Berkeley Technology Law Journal 15 (2000): 535–604, indicates the free expression and self-determination problems presented by intellectual property rights over facts. By contrast, J. H. Reichman and Paul F. Uhlir, “Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology,” Berkeley Technology Law Journal 14 (1999): 793–838, point out their negative effects on science and technological development. Increasingly, science will depend on the recombination of multiple databases to solve problems. At first, this will be done for huge and important projects. But increasingly, it will be done to solve smaller problems—scientists will seek to mix and mash a variety of data sources into an interoperable whole in order to solve the scientific problem du jour. Unfortunately, there are many obstacles to this promising tendency to harness digital technology to scientific research. Some of them are technical, some social, some semantic, some legal. One of the legal problems is posed by the expansion of database rights: the tendency to have intellectual property rights penetrate down to the most basic, unoriginal, or atomic level of data—a move that, as I point out in this chapter, is empirically shown to be counterproductive. Stephen M. Maurer, P. Bernt Hugenholtz, and Harlan J. Onsrud, “Europe’s Database Experiment,” Science 294 (2001): 789–780. Further information on the various barriers to data aggregation can be gleaned from the website of Science Commons (http://www.sciencecommons.org), an organization with which I am associated. + +3~ Evidence-based Policy + +The move toward evidence-based policy has garnered considerable support in academia, but, as yet, only a little traction among policy makers. Readers interested in exploring the issue further can find a series of my Financial Times’s articles on the subject at http://www.ft.com/techforum. James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (Princeton, N.J.: Princeton University Press, 2008), is a sterling example of the way in which we could and should be looking at policy proposals. That book’s list of references provides a nice overview of recent work in the field. As the title indicates, Bessen and Meurer do not grade our current system highly. Adam Jaffe and Josh Lerner, Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What To Do About It (Princeton, N.J.: Princeton University Press, 2004), offers an earlier, and similar, assessment backed by data rather than faith. For us to have evidence-based policy, we need actual evidence. Here the work of empiricists such as my colleague Wes Cohen has proven vital. Much of this work is comparative in nature—relying on the kind of “natural experiment” I describe in this chapter. A fine example is provided by Wesley M. Cohen, Akira Goto, Akiya Nagata, Richard R. Nelson, and John P. Walsh, “R&D Spillovers, Patents and the Incentives to Innovate in Japan and the United States,” Research Policy 31 (2002): 1349–67. + +All of this may seem obvious. Where else would intellectual property academics turn in order to assess the effect of various policy alternatives than to empirical and comparative data? Yet as the chapter points out, that simple conclusion has yet to become a standard assumption in the making of policy. The Gowers Review mentioned in the chapter is a nice example of how things might be otherwise. Gowers Review of Intellectual Property (London: HMSO, 2006), available at http://www.hm-treasury.gov.uk/d/pbr06_gowers_report_755.pdf [Ed. note: originally published at http://www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf, link has changed]. Of course, a turn to evidence is only the beginning. It hardly means that the evidence will be clear, the points of view harmonious, or the normative assessments shared. But at least the conversation is beginning from a rooting in facts rather than faith. + +3~ Publicly Generated Information + +Access to public, or state generated, data is not simply a matter of economic efficiency. Wouter Hins and Dirk Voorhoof, “Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights,” European Constitutional Law Review 3 (2007): 114–126. But in efficiency terms, it does seem to present some clear benefits. Peter Weiss, “Borders in Cyberspace: Conflicting Government Information Policies and their Economic Impacts,” in Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium (Washington, D.C.: National Academies Press, 2004), 69–73. The issues of publicly generated information are particularly pressing in geospatial data—which can be vital for academic research and economic development. Bastiaan van Loenen and Harlan Onsrud, “Geographic Data for Academic Research: Assessing Access Policies,” Cartography and Geographic Information Science 31 (2004): 3–17. It is an issue that is gaining attention in Europe: “Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the Re-use of Public Sector Information,” Official Journal of the European Union 46 (31.12.2003) 90–96 (L 345). However, there is a long way to go. + +3~ Sound Recording Rights + +A good place to start is the Gowers Review, cited above, and the report generated by the Centre for Intellectual Property and Information Law, University of Cambridge, Review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings (2006), available at http://www.hm-treasury.gov.uk/d/gowers_cipilreport.pdf [Ed. note: originally published at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf, the link has changed]. My own views are close to those put forward by this excellent article: Natali Helberger, Nicole Dufft, Stef van Gompel, and Bernt Hugenholtz, “Never Forever: Why Extending the Term of Protection for Sound Recordings is a Bad Idea,” European Intellectual Property Review 30 (2008): 174–181. + +1~ Chapter 10: An Environmentalism for Information + +Over the last fifteen years, a group of scholars have finally persuaded economists to believe something noneconomists find obvious: “behavioral economics” shows that people do not act as economic theory predicts. But hold your cheers. This is not a vindication of folk wisdom over the pointy-heads. The deviations from “rational behavior” are not the wonderful cornucopia of human motivations you might imagine. There are patterns. For example, we are systematically likely to overestimate chances of loss and underestimate chances of gain, to rely on simplifying heuristics to frame problems even when those heuristics are contradicted by the facts. + +Some of the patterns are endearing; the supposedly “irrational” concerns for distributive equality that persist in all but the economically trained and the extreme right, for example. But most of them simply involve the mapping of cognitive bias. We can take advantage of those biases, as those who sell us ludicrously expensive and irrational warranties on consumer goods do. Or we can correct for them, like a pilot who is trained to rely on his instruments rather than his faulty perceptions when flying in heavy cloud. + +This book has introduced you to the wonders and terrors of intellectual property law—the range wars of the Internet age. There have been discussions of synthetic biology and musical sampling, digital locks and the hackers who break them, Jefferson and Macaulay, and the fight over video recorders. Now it is time to sum up. + +I would argue that the chapters in this book present evidence of another kind of cognitive bias, one that the behavioral economists have not yet identified. Call it the openness aversion. Cultural agoraphobia. We are systematically likely to undervalue the importance, viability, and productive power of open systems, open networks, and nonproprietary production. + +2~ Cultural Agoraphobia? + +Test yourself on the following questions. In each case, it is 1991 and I have removed from you all knowledge of the years since then. (For some, this might be a relief.) + +The first question is a thought experiment I introduced in Chapter 4. You have to design an international computer network. One group of scientists describes a system that is fundamentally open: open protocols and open systems so that anyone could connect to the system and offer information or products to the world. Another group—scholars, businesspeople, bureaucrats—points out the problems. Anyone could connect to the system! They could do anything! The system itself would not limit them to a few approved actions or approved connections. There would be porn, and piracy, and viruses, and spam. Terrorists could put up videos glorifying themselves. Your neighbor’s site could compete with the New York Times or the U.S. government in documenting the war in Iraq. Better to have a well-managed system in which official approval is required to put up a site, where only a few selected actions are permitted by the network protocols, where most of us are merely recipients of information, where spam, viruses, and piracy (and innovation and participatory culture and anonymous speech) are impossible. Which network design would you have picked? Remember, you have no experience of blogs, or mashups, or Google; no experience of the Web. Just you and your cognitive filters. + +Imagine a form of software which anyone could copy and change, created under a license which required subsequent programmers to offer their software on the same terms. Imagine legions of programmers worldwide contributing their creations back into a “commons.” Is this anarchic-sounding method of production economically viable? Could it successfully compete with the hierarchically organized corporations producing proprietary, closed code, controlled by both law and technology? Be truthful. + +Finally, set yourself the task of producing the greatest reference work the world has ever seen. You are told that it must cover everything from the best Thai food in Durham to the annual rice production of Thailand, from the best places to see blue whales to the history of the Blue Dog Coalition. Would you create a massive organization of paid experts, each assigned a topic, with hierarchical layers of editors above them, producing a set of encyclopedic tomes that are rigorously controlled by copyright and trademark? Or would you wait for hobbyists, governments, scientists, and volunteer encyclopedists to produce, and search engines to organize and rank, a cornucopia of information? I know which way I would have bet in 1991. But I also know that the last time I consulted an encyclopedia was in 1998. You? + +It is not that openness is always right. It is not. Often we need strong intellectual property rights, privacy controls, and networks that demand authentication. Rather, it is that we need a balance between open and closed, owned and free, and we are systematically likely to get the balance wrong. (How did you do on the test?) Partly this is because we still don’t understand the kind of property that lives on networks; most of our experience is with tangible property. Sandwiches that one hundred people cannot share. Fields that can be overgrazed if outsiders cannot be excluded. For that kind of property, control makes more sense. Like astronauts brought up in gravity, our reflexes are poorly suited for free fall. Jefferson’s words were true even of grain elevators and hopper-boys. But in our world, the proportion of intangible to tangible property is much, much higher. The tendency to conflate intellectual and real property is even more dangerous in a networked world. We need his words more than he did. + +Each of the questions I asked is related to the World Wide Web. Not the Internet, the collective name for the whole phenomenon, including the underlying methods of sending and receiving packets. Some version of the underlying network has been around for much longer, in one form or another. But it only attracted popular attention, only revolutionized the world, when on top of it was built the World Wide Web—the network of protocols and pages and hyperlinks that is so much a part of our lives and which arose only from Tim Berners-Lee’s work at CERN in 1991. + +My daughter will graduate from college in the year 2011. (At least, we both hope so.) She is older than the Web. It will not even have had its twentieth birthday on her graduation day. By Christmas of 2012, it will be able to drink legally in the United States. I wrote those sentences, but I find it hard to believe them myself. A life without the Web is easy to remember and yet hard to recapture fully. It seems like such a natural part of our world, too fixed to have been such a recent arrival, as if someone suggested that all the roads and buildings around you had arrived in the last fifteen years. + +Some of you may find these words inexplicable because you live in a happy, Thoreau-like bliss, free of any contact with computer networks. If so, I take my hat off to you. The world of open sky and virtuous sweat, of books and sport and laughter, is no less dear to me than to you. Having an avatar in a virtual world holds the same interest as elective dental surgery. I care about the Web not because I want to live my life there, but because of what it has allowed us to achieve, what it represents for the potential of open science and culture. That, I think, is something that Thoreau (and even Emerson for that matter) might have cared about deeply. Yet, as I suggested earlier in this book, I seriously doubt that we would create the Web today—at least if policy makers and market incumbents understood what the technology might become early enough to stop it. + +I am not postulating some sinister “Breakages, Limited” that stifles technological innovation. I am merely pointing out the imbalance between our intuitive perceptions of the virtues and dangers of open and closed systems, an imbalance I share, quite frankly. + +In place of what we have today, I think we would try, indeed we are trying, to reinvent a tamer, more controlled Web and to change the nature of the underlying network on which it operates. (This is a fear I share with those who have written about it more eloquently than I, particularly Larry Lessig and Yochai Benkler.) We would restrict openness of access, decrease anonymity, and limit the number of actions that a network participant could perform. The benefits would be undeniable. It would cut down on spam, viruses, and illicit peer-to-peer file sharing. At the same time, it would undercut the iconoclastic technological, cultural, and political potential that the Web offers, the ability of a new technology, a new service to build on open networks and open protocols, without needing approval from regulators or entrenched market players, or even the owners of the Web pages to which you link. + +Imagine, by contrast, an Internet and a World Wide Web that looked like America Online, circa 1996, or Compuserve, or the French state network Minitel. True, your exposure to penis-enhancement techniques, misspelled stock tips, and the penniless sons of Nigerian oil ministers would be reduced. That sounds pretty attractive. But the idea that the AOL search engine would be replaced by Yahoo and then Google, let alone Google Maps? That new forms of instant messaging would displace Compuserve’s e-mail? That the Chinese dissident would have access to anonymized Internet services, that you might make phone calls worldwide for free from your computer, or that a blog like BoingBoing would end up having more page views than many major newspapers? Forget it. Goodbye to the radical idea that anyone can link to any page on the network without permission. A revised network could have the opposite rule and even impose it by default. + +A tamer network could keep much tighter control over content, particularly copyrighted content. You might still get the video of the gentlemen doing strange things with Mentos and soda bottles, though not its viral method of distribution. But forget about “George Bush Doesn’t Care About Black People” and all your favorite mashups. Its controlled network of links and its limited access would never unleash the collective fact-gathering genius the Web has shown. For a fee, you would have Microsoft Encarta and the Encyclopedia Britannica online. What about the “right-click universe” of knowledge about the world gathered by strangers, shared on comparatively open sites worldwide, and ordered by search engines? What about Wikipedia? I think not. + +The counterfactual I offer is not merely a counterfactual. Yes, we got the Web. It spread too fast to think of taming it into the more mature, sedate “National Information Infrastructure” that the Clinton administration imagined. But as Larry Lessig pointed out years ago, the nature of a network can always be changed. The war over the control and design of the network, and the networked computer, is never-ending. As I write these words, the battles are over “trusted computing” and “Net neutrality.” Trusted computing is a feature built into the operating system which makes it impossible to run processes that have not been approved by some outside body and digitally identified. It would indeed help to safeguard your computer from viruses and other threats and make it harder to copy material the content owners did not want you to copy (perhaps even if you had a right to). In the process it would help to lock in the power of those who had a dominant position in operating systems and popular programs. (Microsoft is a big supporter.) It would make open source software, which allows users to modify programs, inherently suspect. It would, in fact, as Jonathan Zittrain points out, change the nature of the general-purpose computer, which you can program to do anything, back toward the terminal which tells you what functions are allowed.~{ Jonathan Zittrain, The Future of the Internet—And How to Stop It (New Haven, Conn.: Yale University Press, 2008). }~ Think of a DVD player. + +The attack on Net neutrality, by contrast, is an attempt by the companies who own the networks to be allowed to discriminate between favored and disfavored content, giving the former preferential access. (One wit analogized it to letting the phone company say, “we will delay your call to Pizza Hut for sixty seconds, but if you want to be put through to our featured pizza provider immediately, hit nine now!”) Taken together, these proposals would put the control of the computer back in the hands of the owners of the content and the operating system, and control of the network users’ choices in the hands of the person who sells them their bandwidth. At the same time, our intellectual property agenda is filled with proposals to create new intellectual property rights or extend old ones. That is the openness aversion in action. + +Now, perhaps to you, the closed alternatives still sound better. Perhaps you do not care as much about the kind of technological dynamism, or anonymous speech, or cultural ferment that thrills the digerati. Perhaps you care more about the risks posed by the underlying freedom. That is a perfectly reasonable point of view. After all, openness does present real dangers; the same freedom given to the innovator, the artist, and the dissident is given to the predator and the criminal. At each moment in history when we have opened a communications network, or the franchise, or literacy, reasonable people have worried about the consequences that might ensue. Would expanded literacy lead to a general coarsening of the literary imagination? (Sometimes, perhaps. But it would and did lead to much more besides, to literature and culture of which we could not have dreamed.) Would an expanded franchise put the control of the state into the hands of the uneducated? (Yes, unless we had free national educational systems. “Now we must educate our masters” was the slogan of the educational reformers after the enlargement of the franchise in Britain in the nineteenth century. Openness sometimes begets openness.) Would translating the Bible from Latin into the vernacular open the door to unorthodox and heretical interpretations, to a congregation straying because they did not need to depend on a priestly intermediary with privileged access to the text? (Oh, yes indeed.) Would TV and radio play into the hands of demagogues? (Yes, and help expose their misdeeds.) + +Openness is not always right. Far from it. But our prior experience seems to be that we are systematically better at seeing its dangers than its benefits. This book has been an attempt, in the sphere of intellectual property, to help us counteract that bias. Like the pilot in the cloud looking at his instruments, we might learn that we are upside down. But what do we do about it? + +2~ Learning from Environmentalism + +I have argued that our policies are distorted not merely by industry capture or the power of incumbent firms, but by a series of cultural and economic biases or presuppositions: the equation of intellectual property to physical property; the assumption that whenever value is created, an intellectual property right should follow; the romantic idea of creativity that needs no raw material from which to build; the habit of considering the threats, but not the benefits, of new technologies; the notion that more rights will automatically bring more innovation; the failure to realize that the public domain is a vital contributor to innovation and culture; and a tendency to see the dangers of openness, but not its potential benefits.~{ Of course, these are not the only assumptions, arguments, and metaphors around. Powerful counterweights exist: the ideas of Jefferson and Macaulay, which I described here, but also others, more loosely related—the Scottish Enlightenment’s stress on the political and moral benefits of competition, free commerce, and free labor; deep economic and political skepticism about monopolies; the strong traditions of open science; and even liberalism’s abiding focus on free speech and access to information. If you hear the slogan “information wants to be free,” you may agree or disagree with the personification. You may find the idea simplistic. But you do not find it incomprehensible, as you might if someone said “housing wants to be free” or “food wants to be free.” We view access to information and culture as vital to successful versions of both capitalism and liberal democracy. We apply to blockages in information flow or disparities in access to information a skepticism that does not always apply to other social goods. Our attitudes toward informational resources are simply different from our attitudes toward other forms of power, wealth, or advantage. It is one of the reasons that the Jefferson Warning is so immediately attractive. It is this attitudinal difference that makes the political terrain on these issues so fascinating. }~ + +One of the most stunning pieces of evidence to our aversion to openness is that, for the last fifty years, whenever there has been a change in the law, it has almost always been to expand intellectual property rights. (Remember, this implies that every significant change in technology, society, or economy required more rights, never less, nor even the same amount.) We have done all this almost entirely in the absence of empirical evidence, and without empirical reconsideration to see if our policies were working. As I pointed out in the last chapter, intellectual property policy is an “evidence-free zone.” It runs on faith alone and its faith consists of the cluster of ideas I have outlined in this book. Whether we call this cluster of ideas maximalism, cultural agoraphobia, or the openness aversion, it exercises a profound influence on our intellectual property and communications policy. + +These ideas are not free-floating. They exist within, are influenced by, and in turn influence, a political economy. The political economy matters and it will shape any viable response. Even if the costs of getting the policies wrong are huge and unnecessary—think of the costs of the copyright extensions that lock up most of twentieth-century culture in order to protect the tiny fraction of it that is still commercially available—they are spread out over the entire population, while the benefits accrue to a small group of commercial entities that deeply and sincerely believe in the maximalist creed. This pattern of diffuse but large losses and concentrated gains is, as Mancur Olson taught us, a recipe for political malfunction.~{ Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge, Mass.: Harvard University Press, 1965) and Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities (New Haven, Conn.: Yale University Press, 1982). }~ Yet the problem is even deeper than that—in four ways. + +First, though intellectual property rules will profoundly shape science, culture, and the market in the information age, they just seem obscure, wonkish, hard to get excited about. Certainly, people can get upset about individual examples—overbroad patents on human genes, copyright lawsuits against whistleblowers who leak e-mails showing corporate misdeeds that threaten the integrity of electronic voting, rules that paralyze documentary filmmakers, or require payment for sampling three notes from a prior song, extensions of rights that allow patents on auctions or business methods, make genres such as jazz seem legally problematic, create new rights over facts, or snarl up foundational technologies. But they see each of these as an isolated malfunction, not part of a larger social problem or set of attitudes. + +Second, what holds true for issues, also holds true for communities. What links the person writing open source software, and trying to negotiate a sea of software patents in the process, to the film archivist trying to stir up interest in all the wonderful “orphan films”—still under copyright but with no copyright owner we can find—before they molder away into nitrate dust? When a university collaborates with Google to digitize books in their collection for the purposes of search and retrieval, even if only a tiny portion of the text will be visible for any work still under copyright, does it sense any common interest with the synthetic biologist trying to create the BioBricks Foundation, to keep open the foundational elements of a new scientific field? Both may be sued for their efforts—one connection at least. + +When a developing nation tries to make use of the explicit “flexibilities” built into international trade agreements so as to make available a life-saving drug to its population through a process of compulsory licensing and compensation, it will find itself pilloried as a lawbreaker—though it is not—or punished through bilateral agreements. Will that process form any common interest with the high-technology industries in the United States who chafe at the way that current intellectual property rules enshrine older technologies and business methods and give them the protection of law? There are some links between those two situations. Will the parties see those links, or will the developing world’s negotiators think that the current intellectual property rules express some monolithic “Western” set of interests? Will the high-tech companies think this is just an issue of dumb lawyers failing to understand technology? Each gap in understanding of common interest is a strike against an effective response. + +Third, an effective political response would actually be easier if our current rules came merely from the relentless pursuit of corporate self-interest. (Here I part company with those who believe that self-interest is simply “there”—not shaped by socially constructed ideas, attitudes, ideologies, or biases.) In fact, the openness aversion sometimes obscures self-interest as well as the public interest. Think of the relentless insistence of the movie companies on making video recorders illegal. Nor does the framework of maximalism help if our goal is to have all the interested economic actors in the room when policy is made. For example, by framing issues of communications policy or Internet regulation as questions of intellectual property, we automatically privilege one set of interested parties—content owners—over others who also have a large economic stake in the matter. + +Fourth, and finally, the biggest problem is that even if one could overcome the problems of political interest, or ideological closed-mindedness, the answers to many of these questions require balance, thought, and empirical evidence—all qualities markedly missing in the debate. If the answer were that intellectual property rights are bad, then forming good policy would be easy. But that is as silly and one-sided an idea as the maximalist one I have been criticizing here. Here are three examples: + +# Drug patents do help produce drugs. Jettisoning them is a bad idea—though experimenting with additional and alternative methods of encouraging medical innovation is a very good one. + +# I believe copyrights over literary works should be shorter, and that one should have to renew them after twenty-eight years—something that about 85 percent of authors and publishers will not do, if prior history is anything to go by. I think that would give ample incentives to write and distribute books, and give us a richer, more accessible culture and educational system to boot, a Library of Congress where you truly can “click to get the book” as my son asked me to do years ago now. But that does not mean that I wish to abolish copyright. On the contrary, I think it is an excellent system. + +# All the empirical evidence shows that protecting compilations of facts, as the European Database Directive does, has been a profound failure as a policy, imposing costs on consumers without encouraging new database production. But if the evidence said the opposite, I would support a new database right. + +We need a political debate about intellectual property that recognizes these trade-offs; that does not impose simplistic, one-sided solutions; that looks to evidence. We need to understand the delicate and subtle balance between property and the opposite of property, the role of rights, but also of the public domain and the commons. Building a theory, let alone a movement, around such an issue is hard. Doing so when we lack some of the basic theoretical tools and vocabularies is daunting. We do not even have a robust conception of the public domain. If they think of it as a legal issue at all, people simply think of it as whatever is left over after an endless series of rights have been carved out. Can one build a politics to protect a residue? + +So we have at least four problems: an issue that is perceived as obscure, affecting scattered groups with little knowledge of each other’s interest, dominated by an ideology that is genuinely believed by its adherents, in the place of which we have to make careful, balanced, empirically grounded suggestions. Assume for a moment the need for a politics of intellectual property that seeks a solution to these four problems. What might such a politics look like? + +I have argued that in a number of respects, the politics of intellectual property and the public domain is at the stage that the American environmental movement was at in the 1950s. In 1950, there were people who cared strongly about issues we would now identify as “environmental”—supporters of the park system and birdwatchers, but also hunters and those who disdained chemical pesticides in growing their foods. In the world of intellectual property, we have start-up software engineers, libraries, appropriationist artists, parodists, biographers, and biotech researchers. In the 50s and 60s, we had flurries of outrage over particular crises—burning rivers, oil spills, dreadful smog. In the world of intellectual property, we have the kind of stories I have tried to tell here. Lacking, however, is a general framework, a perception of common interest in apparently disparate situations. + +Crudely speaking, the environmental movement was deeply influenced by two basic analytical frameworks. The first was the idea of ecology: the fragile, complex, and unpredictable interconnections between living systems. The second was the idea of welfare economics—the ways in which markets can fail to make activities internalize their full costs.~{ “The source of the general divergences between the values of marginal social and marginal private net product that occur under simple competition is the fact that, in some occupations, a part of the product of a unit of resources consists of something, which, instead of coming in the first instance to the person who invests the unit, comes instead, in the first instance (i.e., prior to sale if sale takes place), as a positive or negative item, to other people.” Arthur C. Pigou, “Divergences between Marginal Social Net Product and Marginal Private Net Product,” in The Economics of Welfare (London: Macmillan, 1932), available at http://www.econlib.org/Library/NPDBooks/Pigou/pgEW1.html. Ironically, so far as I can find, Pigou does not use the word “externality.” }~ The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make activities internalize their own costs, particularly their own environmental costs. This failure would, routinely, disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous, and possibly irreparable consequences. These two types of analysis pointed to a general interest in environmental protection and thus helped to build a large constituency which supported governmental efforts to that end. The duck hunter’s preservation of wetlands as a species habitat turns out to have wider functions in the prevention of erosion and the maintenance of water quality. The decision to burn coal rather than natural gas for power generation may have impacts on everything from forests to fisheries. The attempt to reduce greenhouse gases and mitigate the damage from global warming cuts across every aspect of the economy. + +Of course, it would be silly to think that environmental policy was fueled only by ideas rather than more immediate desires. As William Ruckelshaus put it, “With air pollution there was, for example, a desire of the people living in Denver to see the mountains again. Similarly, the people living in Los Angeles had a desire to see one another.” Funnily enough, as with intellectual property, changes in communications technology also played a role. “In our living rooms in the middle sixties, black and white television went out and color television came in. We have only begun to understand some of the impacts of television on our lives, but certainly for the environmental movement it was a bonanza. A yellow outfall flowing into a blue river does not have anywhere near the impact on black and white television that it has on color television; neither does brown smog against a blue sky.”~{ William D. Ruckelshaus, “Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad,” Environmental Law 15 (1985): 457. }~ More importantly perhaps, the technologically fueled deluge of information, whether from weather satellites or computer models running on supercomputers, provided some of the evidence that—eventually—started to build a consensus around the seriousness of global warming. + +Despite the importance of these other factors, the ideas I mentioned—ecology and welfare economics—were extremely important for the environmental movement. They helped to provide its agenda, its rhetoric, and the perception of common interest underneath its coalition politics. Even more interestingly, for my purposes, those ideas—which began as inaccessible scientific or economic concepts, far from popular discourse—were brought into the mainstream of American politics. This did not happen easily or automatically. Popularizing complicated ideas is hard work. There were popular books, television discussions, documentaries on Love Canal or the California kelp beds, op-ed pieces in newspapers, and pontificating experts on TV. Environmental groups both shocking and staid played their part, through the dramatic theater of a Greenpeace protest or the tweedy respectability of the Audubon Society. Where once the idea of “the Environment” (as opposed to “my lake,” say) was seen as a mere abstraction, something that couldn’t stand against the concrete benefits brought by a particular piece of development, it came to be an abstraction with both the force of law and of popular interest behind it. + +To me, this suggests a strategy for the future of the politics of intellectual property, a way to save our eroding public domain. In both areas, we seem to have the same recipe for failure in the structure of the decision-making process. Democratic decisions are made badly when they are primarily made by and for the benefit of a few stakeholders, whether industrialists or content providers. This effect is only intensified when the transaction costs of identifying and resisting the change are high. Think of the costs and benefits of acid rain-producing power generation or—less serious, but surely similar in form—the costs and benefits of retrospectively increasing copyright term limits on works for which the copyright had already expired, pulling them back out of the public domain. There are obvious benefits to the heirs and assigns of authors whose copyright has expired in having Congress put the fence back up around this portion of the intellectual commons. There are clearly some costs—for example, to education and public debate—in not having multiple, competing low-cost editions of these works. But these costs are individually small and have few obvious stakeholders to represent them. + +Yet, as I have tried to argue here, beyond the failures in the decision-making process, lie failures in the way we think about the issues. The environmental movement gained much of its persuasive power by pointing out that for structural reasons we were likely to make bad environmental decisions: a legal system based on a particular notion of what “private property” entailed and an engineering or scientific system that treated the world as a simple, linearly related set of causes and effects. In both of these conceptual systems, the environment actually disappeared; there was no place for it in the analysis. Small surprise, then, that we did not preserve it very well. I have argued that the same is true about the public domain. The confusions against which the Jefferson Warning cautions, the source-blindness of a model of property rights centered on an “original author,” and the political blindness to the importance of the public domain as a whole (not “my lake,” but “the Environment”), all come together to make the public domain disappear, first in concept and then, increasingly, as a reality. To end this process we need a cultural environmentalism, an environmentalism of the mind, and over the last ten years we have actually begun to build one. + +Cultural environmentalism is an idea, an intellectual and practical movement, that is intended to be a solution to a set of political and theoretical problems—an imbalance in the way we make intellectual property policy, a legal regime that has adapted poorly to the transformation that technology has produced in the scope of law, and, perhaps most importantly, a set of mental models, economic nostrums, and property theories that each have a public domain-shaped hole at their center. + +The comparison I drew between the history of environmentalism and the state of intellectual property policy had a number of facets. The environmental movement had “invented” the concept of the environment and used it to tie together a set of phenomena that would otherwise seem very separate. In doing so, it changed perceptions of self-interest and helped to form coalitions where none had existed before—just as earth science built upon research into the fragile interconnections of ecology and on the Pigouvian analysis of economic externalities. I argue that we need to make visible the invisible contributions of the public domain, the “ecosystem services” performed by the underappreciated but nevertheless vital reservoir of freedom in culture and science.~{ As always, Jessica Litman provides the clearest and most down-to-earth example. Commenting on Rebecca Tushnet’s engrossing paper on fan fiction (Rebecca Tushnet, “Payment in Credit: Copyright Law and Subcultural Creativity,” Law and Contemporary Problems 70 (Spring 2007): 135–174), Litman describes copyright’s “balance between uses copyright owners are entitled to control and other uses that they simply are not entitled to control.” Jessica Litman, “Creative Reading,” Law and Contemporary Problems 70 (Spring 2007), 175. That balance, she suggests, is not bug but feature. The spaces of freedom that exist in the analog world because widespread use is possible without copying are neither oversights, nor temporarily abandoned mines of monopoly rent just waiting for a better technological retrieval method. They are integral parts of the copyright system. }~ And, just as with environmentalism, we need not only a semantic reorganization, or a set of conceptual and analytic tools, but a movement of people devoted to bringing a goal to the attention of their fellow citizens. + +I have tried hard to show that there is something larger going on under the realpolitik of land grabs by Disney and campaign contributions by the Recording Industry Association of America. But it would be an equal and opposite mistake to think that this is just about a dysfunctional discourse of intellectual property. In this part of the analysis, too, the environmental movement offers some useful practical reminders. The ideas of ecology and environmental welfare economics were important, but one cannot merely write A Sand County Almanac and hope the world will change. Environmentalists piggybacked on existing sources of conservationist sentiment—love of nature, the national parks movement, hikers, campers, birdwatchers. They built coalitions between those who might be affected by environmental changes. They even stretched their political base by discovering, albeit too slowly, the realities of environmental racism, on the one hand, and the benefits of market solutions to some environmental problems on the other. Some of these aspects, at least, could be replicated in the politics of intellectual property. + +Ten years ago, when I first offered the environmental analogy, I claimed that intellectual property policy was seen as a contract struck between industry groups—something technical, esoteric, and largely irrelevant to individual citizens, except in that they were purchasers of the products that flowed out of the system. Whether or not that view has ever been tenable, it is not so in a digital age. Instead, I offered the basic argument laid out here—that we needed a “politics of intellectual property” modeled on the environmental movement to create a genuine and informed political debate on intellectual property policy.~{ James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87–116. }~ + +So far, I have concentrated on the theoretical and academic tools such a debate would need—focusing particularly on property theory and on economic analysis and its limits. But if there is to be a genuinely democratic politics of intellectual property, we would need an institutional diversity in the policymaking debate that was comparable to that of the environmental movement. + +Environmentalism presents us with a remarkable diversity of organizational forms and missions. We have Greenpeace, the Environmental Legal Defense Fund, groups of concerned scientists, and the Audubon Society, each with its own methods, groups of supporters, and sets of issues. Yet we also have local and pragmatic coalitions to save a particular bit of green space, using the private tools of covenants and contracts.~{ Molly Shaffer Van Houweling, “Cultural Environmentalism and the Constructed Commons,” Law and Contemporary Problems 70 (Spring 2007): 23–50. }~ I think we can see the beginnings of the replication of that institutional diversity in the world of intangible property. + +Ten years ago, civil society had little to offer in terms of groups that represented anything other than an industry position on intellectual property, still less ones that took seriously the preservation of the public domain or the idea that intellectual property policy was a matter of balance, rather than simple maximization of rights. There were the librarians and a few academics. That was about it. This position has changed radically. + +There are academic centers that concentrate on the theoretical issues discussed in this book—one of them at my university. Thanks in large part to the leadership of Pamela Samuelson, there are law student clinics that do impact litigation on issues such as fair use and that represent underserved clients such as documentarians. But beyond academic work, there are organizations that have dedicated themselves to advocacy and to litigation around the themes of preservation of the public domain, defense of limitations and exceptions in copyright, and the protection of free speech from the effects of intellectual property regulation of both content and the communications infrastructure. The Electronic Frontier Foundation did exist ten years ago, but its coverage of intellectual property issues was only episodic. Its portfolio of litigation and public education on the subject is now nothing short of remarkable. Public Knowledge’s valuable lobbying and education is another obvious example. International organizations with similar aims include the Open Rights Group in the United Kingdom.~{ See http://www.eff.org/issues/intellectual-property [Ed. note: originally published at http://www.eff.org/IP/, the link has changed], http://www.openrightsgroup.org/, http://www.publicknowledge.org/. }~ + +Organizing has also taken place around particular cases—such as Eldred v. Ashcroft, the challenge to the Sonny Bono Copyright Term Extension Act.~{ Eldred v. Ashcroft, 537 U.S. 186 (2003). Once again, Professor Lessig had the central role as counsel for petitioners. }~ Activity is not confined to the world of copyright. The Public Patent Foundation combats “patent creep” by exposing and challenging bad patents.~{ See http://www.pubpat.org/. }~ It would be remiss not to mention the international Access to Knowledge, or A2K, movement, inspired by the work of Jamie Love.~{ See Access to Knowledge, http://www.cptech.org/a2k/. Some of Mr. Love’s initiatives are discussed at http://www.cptech.org/jamie/. }~ While its focus is on the kinds of issues represented by the access-to-medicines movement, it has made the idea of balance in intellectual property and the protection of the public domain one of its central components. Mr. Love himself is also the central figure behind the idea of a Research and Development Treaty which would amend international trade agreements to make intellectual property merely one of a whole range of economic methods for stimulating innovation.~{ Tim Hubbard and James Love, “A New Trade Framework for Global Healthcare R&D,” PLoS Biology 2 (2004): e52. }~ His work has touched almost every single one of the movements discussed here. + +The Access to Knowledge movement has many institutional variants. The Development Agenda at the World Intellectual Property Organization (WIPO), put forward by India and Brazil, includes similar themes, as do the Geneva Declaration and the Adelphi Charter produced by the United Kingdom’s Royal Society for the Encouragement of Arts, Manufactures and Commerce.~{ WIPO Development Agenda, available at http://www.cptech.org/ip/wipo/da.html. The Geneva Declaration on the Future of the World Intellectual Property Organization, available at http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf. In the interest of full disclosure, I should note that I wrote one of the first manifestos that formed the basis for earlier drafts of the Declaration. James Boyle, “A Manifesto on WIPO and the Future of Intellectual Property,” Duke Law & Technology Review 0009 (2004): 1–12, available at http://www.law.duke.edu/journals/dltr/articles/PDF/2004DLTR0009.pdf. The Adelphi Charter on Creativity, Innovation, and Intellectual Property, available at http://www.adelphicharter.org/. The Charter was issued by the British Royal Society for the Encouragement of Arts, Manufactures and Commerce (RSA). For discussion of the Charter see James Boyle, “Protecting the Public Domain,” Guardian.co.uk (October 14, 2005), available at http://education.guardian.co.uk/higher/comment/story/0,9828,1591467,00.html; “Free Ideas,” The Economist (October 15, 2005), 68. Again, in the interest of full disclosure, I should note that I advised the RSA on these issues and was on the steering committee of the group that produced the Charter. }~ History is full of wordy charters and declarations, of course. By themselves they mean little. Yet the level of public and media attention paid to them indicates that intellectual property policy is now of interest beyond a narrow group of affected industries. To underscore this point, several major foundations have introduced intellectual property initiatives, something that would have been inconceivable ten years ago.~{ An example is the MacArthur Foundation Program on Intellectual Property and the Public Domain: “The General Program . . . was begun in 2002 as a short-term project to support new models, policy analysis, and public education designed to bring about balance between public and private interests concerning intellectual property rights in a digital era.” See www.macfound.org/grantmaking_guidelines_ippd [Ed. note: originally published as http://www.macfound.org/site/c.lkLXJ8MQKrH/b.943331/k.DA6/General_Grantmaking__Intellectual_Property.htm, the link changed]. The Ford Foundation has a similar initiative. Frédéric Sultan, “International Intellectual Property Initiative: Ford Foundation I-Jumelage Resources,” available at http://www.vecam.org/ijumelage/spip.php?article609. }~ + +Finally, to complete the analogy to the land trust, we have the organizations I mentioned earlier, such as Creative Commons and the Free Software Foundation.~{ See http://www.creativecommons.org and http://www.fsf.org. }~ The latter group pioneered within software the attempt to create a licensed “commons” in which freedoms are guaranteed. The licensed commons replaces the law’s default rules with choices made by individuals, the effects of which are magnified by collective action. The end result is a zone of public freedom enabled by private choice. + +If one looks at these institutions and actors and at the range of issues on which they focus—from software to drug patents, from reverse engineering to access to archival records—the obvious question is, how did they overcome the collective action problem? What ties together a critique of digital locks and the access-to-medicines movement? Again, I think the answer points to the usefulness of the environmental analogy. As I pointed out, the invention of the “environment” trope tied together groups whose interests, considered at a lower level of abstraction, seemed entirely different—hunters and birdwatchers, antipollution protesters and conservation biologists. The idea of the “environment” literally created the self-interest or set of preferences that ties the movement together. The same is true here. Apparently disparate interests are linked by ideas of the protection of the public domain and of the importance of a balance between protection and freedom in cultural and scientific ecology.~{ This process runs counter to the assumptions of theorists of collective action problems in a way remarkable enough to have attracted its own chroniclers. See Amy Kapczynski, “The Access to Knowledge Mobilization and the New Politics of Intellectual Property,” Yale Law Journal 117 (2008): 804–885. Economists generally assume preferences are simply given, individuals just have them and they are “exogenous” to the legal system in the sense that they are unaffected by the allocation of legal rights. The emergence of the movements and institutions I am describing here paints a different picture. The “preferences” are socially constructed, created through a collective process of debate and decision which shifts the level of abstraction upwards; and, as Kapczynski perceptively notes, they are highly influenced by the legal categories and rights against which the groups involved initially defined themselves. }~ + +But even a broad range of initiatives and institutions would not, in and of themselves, produce results. One must convince people that one’s arguments are good, one’s institutional innovations necessary, one’s horror stories disturbing. Environmentalism has managed to win the battle for clarity—to make its points clearly enough that they ceased to be dismissed as “arcane” or technical, to overcome neglect by the media, to articulate a set of concerns that are those of any educated citizen. The other striking phenomenon of the last ten years is the migration of intellectual property issues off the law reviews or business pages and onto the front pages and the editorial pages. Blogs have been particularly influential. Widely read sites such as Slashdot and BoingBoing have multiple postings on intellectual property issues each day; some are rants, but others are at a level of sophistication that once would have been confined to academic discussion.~{ See “News for Nerds: Stuff That Matters,” http://www.slashdot.org, and “A Directory of Wonderful Things,” http://www.boingboing.net. }~ Scientists passionately debate the importance of open access to scholarly journals. Geographers and climatologists fume over access to geospatial data. The movement has been pronounced enough to generate its own reaction. The popular comics site “xkcd” has strips critical of the Digital Millennium Copyright Act,~{ Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.). }~ but also a nerdily idyllic picture of a stick figure reclining under a tree and saying, “Sometimes I just can’t get outraged over copyright law.”~{ For the former see “Content Protection,” http://xkcd.com/c129.html, and “Digital Rights Management,” http://xkcd.com/c86.html. For the latter, see “Copyright,” http://xkcd.com/c14.html. }~ That cartoon now resides on my computer desktop. (It is under a Creative Commons license, ironically enough.) + +Who can blame the stick figure? Certainly not I. Is it not silly to equate the protection of the environment with the protection of the public domain? After all, one is the struggle to save a planetary ecology and the other is just some silly argument about legal rules and culture and science. I would be the first to yield primacy to the environmental challenges we are facing. Mass extinction events are to be avoided, particularly if they involve you personally. Yet my willingness to minimize the importance of the rules that determine who owns science and culture goes only so far. + +A better intellectual property system will not save the planet. On the other hand, one of the most promising sets of tools for building biofuels comes from synthetic biology. Ask some of the leading scientists in that field why they devoted their precious time to trying to work out a system that would offer the valuable incentives that patents provide while leaving a commons of “biobricks” open to all for future development. I worry about these rules naturally; they were forced to do so. A better intellectual property system certainly will not end world hunger. Still it is interesting to read about the lengthy struggles to clear the multiple, overlapping patents on GoldenRice™—a rice grain genetically engineered to cure vitamin deficiencies that nearly perished in a thicket of blurrily overlapping rights.~{ R. David Kryder, Stanley P. Kowalski, and Anatole F. Krattiger, “The Intellectual and Technical Property Components of Pro-Vitamin A Rice (GoldenRice™): A Preliminary Freedom-to-Operate Review,” ISAAA Briefs No. 20 (2000), available at http://www.isaaa.org/Briefs/20/briefs.htm. }~ + +A better intellectual property system will not cure AIDS or rheumatoid arthritis or Huntington’s disease or malaria. Certainly not by itself. Patents have already played a positive role in contributing to treatments for the first two, though they are unlikely to help much on the latter two; the affected populations are too few or too poor. But overly broad, or vague, or confusing patents could (and I believe have) hurt all of those efforts—even those being pursued out of altruism. Those problems could be mitigated. Reforms that made possible legal and facilitated distribution of patented medicines in Africa might save millions of lives. They would cost drug companies little. Africa makes up 1.6 percent of their global market. Interesting alternative methods have even been suggested for encouraging investment in treatments for neglected diseases and diseases of the world’s poor. At the moment, we spend 90 percent of our research dollars on diseases that affect 10 percent of the global population. Perhaps this is the best we can do, but would it not be nice to have a vigorous public debate on the subject? Some possible innovations are much easier. A simple rule that required the eventual free publication online of all government-funded health research, under open licenses, rather than its sequestration behind the paywalls of commercial journals, could help fuel remarkable innovations in scientific synthesis and computer-aided research while giving citizens access to the research for which they have already paid. + +Good intellectual property policy will not save our culture. But bad policy may lock up our cultural heritage unnecessarily, leave it to molder in libraries, forbid citizens to digitize it, even though the vast majority of it will never be available publicly and no copyright owner can be found. Would you not prefer the world in which your children could look at the Library of Congress online catalogue and click to get the book or film or song that otherwise languished as an “orphan work”? Good intellectual policy will not necessarily give us great new music. But the policy we have today would make some of the music we most cherish illegal, or at least legally questionable. Does that inspire confidence for the future? As for the World Wide Web, I offer again my thought experiment from the first part of this chapter. Would we be more likely to invent it or forbid it today? We are certainly working busily to change the openness of the general-purpose computer, the neutrality of the network, and the degree of control that content companies can exert over hardware. + +I do not claim that the issues I have written about here are the most important problem the world faces. That would be ridiculous. But I do claim that they are facets of a very important problem and one to which we are paying far too little attention. + +I would also be the first to admit that these issues are complicated. Even if we heeded the precepts I have outlined in this book, even if we actually started to look at intellectual property as an empirical question, even if we turned to data rather than faith for our assessments, reasonable people would disagree about much. Some of the most ludicrous recent excesses—huge retrospective copyright term extensions, database rights, proposed webcasting treaties, business method patents—do not pass the laugh test, in my view and that of most scholars. Stopping and then reversing that tide would be valuable, even transformative, but other issues are a closer call. + +It is also true that we do not have all the tools we need. A lot remains to be done, both academically and practically. We need better evidence. We need property theories that give us as rich a conception of property’s outside—of the public domain and the commons—as we have of property itself. We need to rethink some of our policies of international harmonization and reconsider what types of policy actually benefit the developing world. We should explore ways of compensating artists that are very different from the ones we use now, and study the use of distributed creativity and open source in new areas of science and culture. + +Difficulties aside, I have tried here to show that we need a cultural environmental movement, a politics that enables us first to see and then to preserve the public domain, to understand its contributions to our art, our technology, and our culture. Where is that movement now? + +There is cause for both concern and optimism. Concern, because it is still hard for courts, legislators, policy makers, and citizens to see beyond the word “property” to the reality underneath. I started this book with the question from my son about the online catalogue of the Library of Congress: “Where do you click to get the book?” In 2003 the Supreme Court heard Eldred v. Ashcroft, the challenge to retrospective copyright term extension. Over two strong dissents, the Court upheld the constitutionality of the act against both First Amendment and Copyright Clause challenges. The dead had their copyrights extended yet again. The widest legal restriction of speech in the history of the Republic—putting off-limits most twentieth-century books, poems, films, and songs for another twenty years without a corresponding speech benefit or incentive—can proceed without significant First Amendment review. Does such a decision mean the task this book undertakes—to take seriously the contributions of the public domain to innovation, culture, and speech—is ultimately doomed, whatever its intellectual merits, to face a hostile or uncomprehending audience? Admittedly, Eldred focused specifically on two particular constitutional claims. Still, the attitude of the majority toward the importance of the public domain—whether in the textual limitations on Congress’s power or the application of the First Amendment—can hardly be cause for optimism. And yet . . . The media reaction was remarkable. + +The New York Times was sufficiently unfamiliar with the term “public domain” that it was not entirely sure whether or not to use the definite article in front of it. But unfamiliarity did not imply complacency. An editorial declared that this decision “makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment.”~{ “The Supreme Court Docket: The Coming of Copyright Perpetuity,” New York Times editorial (January 16, 2003), A28. }~ The Washington Post, though more inclined to agree that retrospective extension might be constitutional, declared the copyright system to be “broken” in that it “effectively and perpetually protects nearly all material that anyone would want to cite or use. That’s not what the framers envisioned, and it’s not in the public interest.”~{ “Free Mickey Mouse,” Washington Post editorial (January 21, 2003), A16. }~ + +I could not agree more. But as I have tried to show here, the process is not limited to copyright, or culture, or texts, or the United States. Think of the stories about business method patents, or synthetic biology, or the regulation of musical borrowing on the atomic level. Think of the discussion of the openness aversion that began this chapter. In the middle of the most successful and exciting experiment in nonproprietary, distributed creativity in the history of the species, our policy makers can see only the threat from “piracy.” They act accordingly. Our second enclosure movement is well under way. The poem with which I began Chapter 3 told us: “And geese will still a common lack / Till they go and steal it back.” I cannot match the terseness or the rhyme, but if we assume that the enclosure of the commons of the mind will bring us prosperity, great science, and vibrant culture, well, we will look like very silly geese indeed. + +2~ Chapter 10: Further Reading + +Those who are interested in the evolution of the analogy between environmentalism and the movement to recognize and safeguard the public domain can start with the editors’ introductions to the Symposium Cultural Environmentalism @ 10, James Boyle and Lawrence Lessig, eds., Law and Contemporary Problems 70 (2007) 1–21, available at http://www.law.duke.edu/ce10. + +The single best chronicle of the Access to Knowledge (“A2K”) movement is Amy Kapczynski, “The Access to Knowledge Mobilization and the New Politics of Intellectual Property,” Yale Law Journal 117 (2008): 804–885. Lawrence Lessig’s work has been a common point of reference: Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), and Lawrence Lessig, Free Culture (New York: Penguin, 2004). Many of the key political initiatives have come from James Love and the Consumer Project on Technology. A wealth of material can be found at http://www.cptech.org/a2k/ and at Knowledge Ecology International, http://www.keionline.org/index.php. The inaugural edition of the journal Knowledge Ecology Studies presents an informal discussion of the origins of the idea at http://www.kestudies.org/ojs/index.php/kes/article/view/29/53. + +For the ways in which the A2K movement has involved both criticism of and attempts to reform international bodies such as the World Intellectual Property Organization (“WIPO”) see James Boyle, “A Manifesto on WIPO and the Future of Intellectual Property,” Duke Law and Technology Review 0009 (2004): 1–12, available at http://www.law.duke.edu/journals/dltr/articles/PDF/2004DLTR0009.pdf, and Christopher May, The World Intellectual Property Organization: Resurgence and the Development Agenda (London: Routledge, 2006). + +The minimalist or antimonopolistic attitude toward intellectual property has a long history, as this book has tried to show. The specific concern with the public domain is of more recent origin. The foundational essay was published by my colleague David Lange, “Recognizing the Public Domain,” Law and Contemporary Problems 44, no. 4 (1981): 147–178. I would also recommend Collected Papers, Duke Conference on the Public Domain, ed. James Boyle (Durham, N.C.: Center for the Study of the Public Domain, 2003), which contains scholarly articles on the history, constitutional status, scientific importance, musical significance, property theory, and economic effects of the public domain. The entire volume can be read online at http://www.law.duke.edu/journals/lcp/indexpd.htm. + +Finally, Duke’s Center for the Study of the Public Domain, which has generously supported the writing of this book has a wide variety of resources—ranging from scholarly texts to films and comic books—on the subjects of intellectual property, the public domain and idea of an environmentalism for information. Those resources can be found at http://www.law.duke.edu/cspd. + + diff --git a/data/v3/samples/the_wealth_of_networks.yochai_benkler.sst b/data/v3/samples/the_wealth_of_networks.yochai_benkler.sst new file mode 100644 index 0000000..13cdf9b --- /dev/null +++ b/data/v3/samples/the_wealth_of_networks.yochai_benkler.sst @@ -0,0 +1,2682 @@ +% SiSU 2.0 + +@title: The Wealth of Networks + :subtitle: How Social Production Transforms Markets and Freedom + :language: US + +@creator: + :author: Benkler, Yochai + +@classify: + :type: Book + :topic_register: SiSU:markup sample:book;networks;Internet;intellectual property:patents|copyright;economics;society;copyright;patents;book:subject:information society|information networks|economics|public policy|society|copyright|patents + :isbn: 9780300110562 + :oclc: 61881089 + +% :isbn: 0300110561 + +@rights: + :copyright: Copyright (C) 2006 Yochai Benkler. + :license: All rights reserved. Subject to the exception immediately following, this book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. http://creativecommons.org/licenses/by-nc-sa/2.5/ The author has made an online version of the book available under a Creative Commons Noncommercial Sharealike license; it can be accessed through the author's website at http://www.benkler.org. + +% STRANGE FRUIT By Lewis Allan 1939 (Renewed) by Music Sales Corporation (ASCAP) International copyright secured. All rights reserved. All rights outside the United States controlled by Edward B. Marks Music Company. Reprinted by permission. + +@date: + :published: 2006-04-03 + :created: 2006-04-03 + :issued: 2006-04-03 + :available: 2006-04-03 + :modified: 2006-04-03 + :valid: 2006-04-03 + +% :created: 2006-01-27 + +@make: + :skin: skin_won_benkler + :breaks: new=:B; break=1 + +@links: + {The Wealth of Networks, dedicated wiki}http://cyber.law.harvard.edu/wealth_of_networks/Main_Page + {Yochai Benkler, wiki}http://www.benkler.org/wealth_of_networks/index.php/Main_Page + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {@ Wikipedia}http://en.wikipedia.org/wiki/The_Wealth_of_Networks + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow + {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + {WoN @ Amazon.com}http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0300110561/ + {WoN @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0300110561 + +:A~ @title @author + +1~attribution Attribution~# + +!_ For Deb, Noam, and Ari~# + +"Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing." "Such are the differences among human beings in their sources of pleasure, their susceptibilities of pain, and the operation on them of different physical and moral agencies, that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable."~# + +John Stuart Mill, On Liberty (1859)~# + +1~acknowledgments Acknowledgments + +Reading this manuscript was an act of heroic generosity. I owe my gratitude to those who did and who therefore helped me to avoid at least some of the errors that I would have made without their assistance. Bruce Ackerman spent countless hours listening, and reading and challenging both this book and its precursor bits and pieces since 2001. I owe much of its present conception and form to his friendship. Jack Balkin not only read the manuscript, but in an act of great generosity taught it to his seminar, imposed it on the fellows of Yale's Information Society Project, and then spent hours with me working through the limitations and pitfalls they found. Marvin Ammori, Ady Barkan, Elazar Barkan, Becky Bolin, Eszter Hargittai, Niva Elkin Koren, Amy Kapczynski, Eddan Katz, Zac Katz, Nimrod Koslovski, Orly Lobel, Katherine McDaniel, and Siva Vaidhyanathan all read the manuscript and provided valuable thoughts and insights. Michael O'Malley from Yale University Press deserves special thanks for helping me decide to write the book that I really wanted to write, not something else, and then stay the course. ,{[pg 10]}, + +This book has been more than a decade in the making. Its roots go back to 1993-1994: long nights of conversations, as only graduate students can have, with Niva Elkin Koren about democracy in cyberspace; a series of formative conversations with Mitch Kapor; a couple of madly imaginative sessions with Charlie Nesson; and a moment of true understanding with Eben Moglen. Equally central from around that time, but at an angle, were a paper under Terry Fisher's guidance on nineteenth-century homesteading and the radical republicans, and a series of classes and papers with Frank Michelman, Duncan Kennedy, Mort Horwitz, Roberto Unger, and the late David Charny, which led me to think quite fundamentally about the role of property and economic organization in the construction of human freedom. It was Frank Michelman who taught me that the hard trick was to do so as a liberal. + +Since then, I have been fortunate in many and diverse intellectual friendships and encounters, from people in different fields and foci, who shed light on various aspects of this project. I met Larry Lessig for (almost) the first time in 1998. By the end of a two-hour conversation, we had formed a friendship and intellectual conversation that has been central to my work ever since. He has, over the past few years, played a pivotal role in changing the public understanding of control, freedom, and creativity in the digital environment. Over the course of these years, I spent many hours learning from Jamie Boyle, Terry Fisher, and Eben Moglen. In different ways and styles, each of them has had significant influence on my work. There was a moment, sometime between the conference Boyle organized at Yale in 1999 and the one he organized at Duke in 2001, when a range of people who had been doing similar things, pushing against the wind with varying degrees of interconnection, seemed to cohere into a single intellectual movement, centered on the importance of the commons to information production and creativity generally, and to the digitally networked environment in particular. In various contexts, both before this period and since, I have learned much from Julie Cohen, Becky Eisenberg, Bernt Hugenholtz, David Johnson, David Lange, Jessica Litman, Neil Netanel, Helen Nissenbaum, Peggy Radin, Arti Rai, David Post, Jerry Reichman, Pam Samuelson, Jon Zittrain, and Diane Zimmerman. One of the great pleasures of this field is the time I have been able to spend with technologists, economists, sociologists, and others who don't quite fit into any of these categories. Many have been very patient with me and taught me much. In particular, I owe thanks to Sam Bowles, Dave Clark, Dewayne Hendricks, Richard Jefferson, Natalie Jeremijenko, Tara Lemmey, Josh Lerner, Andy Lippman, David Reed, Chuck Sabel, Jerry Saltzer, Tim Shepard, Clay Shirky, and Eric von Hippel. In constitutional law and political theory, I benefited early and consistently from the insights of Ed Baker, with whom I spent many hours puzzling through practically every problem of political theory that I tackle in this book; Chris Eisgruber, Dick Fallon, Larry Kramer, Burt Neuborne, Larry Sager, and Kathleen Sullivan all helped in constructing various components of the argument. + +Much of the early work in this project was done at New York University, whose law school offered me an intellectually engaging and institutionally safe environment to explore some quite unorthodox views. A friend, visiting when I gave a brown-bag workshop there in 1998, pointed out that at very few law schools could I have presented "The Commons as a Neglected Factor of Information Policy" as an untenured member of the faculty, to a room full of law and economics scholars, without jeopardizing my career. Mark Geistfeld, in particular, helped me work though the economics of sharing--as we shared many a pleasant afternoon on the beach, watching our boys playing in the waves. I benefited from the generosity of Al Engelberg, who funded the Engelberg Center on Innovation Law and Policy and through it students and fellows, from whose work I learned so much; and Arthur Penn, who funded the Information Law Institute and through it that amazing intellectual moment, the 2000 conference on "A Free Information Ecology in the Digital Environment," and the series of workshops that became the Open Spectrum Project. During that period, I was fortunate enough to have had wonderful students and fellows with whom I worked in various ways that later informed this book, in particular Gaia Bernstein, Mike Burstein, John Kuzin, Greg Pomerantz, Steve Snyder, and Alan Toner. +={institutional ecology of digital environment} + +Since 2001, first as a visitor and now as a member, I have had the remarkable pleasure of being part of the intellectual community that is Yale Law School. The book in its present form, structure, and emphasis is a direct reflection of my immersion in this wonderful community. Practically every single one of my colleagues has read articles I have written over this period, attended workshops where I presented my work, provided comments that helped to improve the articles--and through them, this book, as well. I owe each and every one of them thanks, not least to Tony Kronman, who made me see that it would be so. To list them all would be redundant. To list some would inevitably underrepresent the various contributions they have made. Still, I will try to say a few of the special thanks, owing much yet to ,{[pg xii]}, those I will not name. Working out the economics was a precondition of being able to make the core political claims. Bob Ellickson, Dan Kahan, and Carol Rose all engaged deeply with questions of reciprocity and commonsbased production, while Jim Whitman kept my feet to the fire on the relationship to the anthropology of the gift. Ian Ayres, Ron Daniels during his visit, Al Klevorick, George Priest, Susan Rose-Ackerman, and Alan Schwartz provided much-needed mixtures of skepticism and help in constructing the arguments that would allay it. Akhil Amar, Owen Fiss, Jerry Mashaw, Robert Post, Jed Rubenfeld, Reva Siegal, and Kenji Yoshino helped me work on the normative and constitutional questions. The turn I took to focusing on global development as the core aspect of the implications for justice, as it is in chapter 9, resulted from an invitation from Harold Koh and Oona Hathaway to speak at their seminar on globalization, and their thoughtful comments to my paper. The greatest influence on that turn has been Amy Kapczynski's work as a fellow at Yale, and with her, the students who invited me to work with them on university licensing policy, in particular, Sam Chaifetz. + +Oddly enough, I have *{never had the proper context}* in which to give two more basic thanks. My father, who was swept up in the resistance to British colonialism and later in Israel's War of Independence, dropped out of high school. He was left with a passionate intellectual hunger and a voracious appetite for reading. He died too young to even imagine sitting, as I do today with my own sons, with the greatest library in human history right there, at the dinner table, with us. But he would have loved it. Another great debt is to David Grais, who spent many hours mentoring me in my first law job, bought me my first copy of Strunk and White, and, for all practical purposes, taught me how to write in English; as he reads these words, he will be mortified, I fear, to be associated with a work of authorship as undisciplined as this, with so many excessively long sentences, replete with dependent clauses and unnecessarily complex formulations of quite simple ideas. + +Finally, to my best friend and tag-team partner in this tussle we call life, Deborah Schrag, with whom I have shared nicely more or less everything since we were barely adults. ,{[pg 1]}, + +1~1 Chapter 1 - Introduction: A Moment of Opportunity and Challenge + +Information, knowledge, and culture are central to human freedom and human development. How they are produced and exchanged in our society critically affects the way we see the state of the world as it is and might be; who decides these questions; and how we, as societies and polities, come to understand what can and ought to be done. For more than 150 years, modern complex democracies have depended in large measure on an industrial information economy for these basic functions. In the past decade and a half, we have begun to see a radical change in the organization of information production. Enabled by technological change, we are beginning to see a series of economic, social, and cultural adaptations that make possible a radical transformation of how we make the information environment we occupy as autonomous individuals, citizens, and members of cultural and social groups. It seems passe today to speak of "the Internet revolution." In some academic circles, it is positively naïve. But it should not be. The change brought about by the networked information environment is deep. It is structural. It goes to the very foundations of how liberal markets and liberal democracies have coevolved for almost two centuries. ,{[pg 2]}, +={access: human development and justice+2;information economy+55} + +A series of changes in the technologies, economic organization, and social practices of production in this environment has created new opportunities for how we make and exchange information, knowledge, and culture. These changes have increased the role of nonmarket and nonproprietary production, both by individuals alone and by cooperative efforts in a wide range of loosely or tightly woven collaborations. These newly emerging practices have seen remarkable success in areas as diverse as software development and investigative reporting, avant-garde video and multiplayer online games. Together, they hint at the emergence of a new information environment, one in which individuals are free to take a more active role than was possible in the industrial information economy of the twentieth century. This new freedom holds great practical promise: as a dimension of individual freedom; as a platform for better democratic participation; as a medium to foster a more critical and self-reflective culture; and, in an increasingly information dependent global economy, as a mechanism to achieve improvements in human development everywhere. + +The rise of greater scope for individual and cooperative nonmarket production of information and culture, however, threatens the incumbents of the industrial information economy. At the beginning of the twenty-first century, we find ourselves in the midst of a battle over the institutional ecology of the digital environment. A wide range of laws and institutions-- from broad areas like telecommunications, copyright, or international trade regulation, to minutiae like the rules for registering domain names or whether digital television receivers will be required by law to recognize a particular code--are being tugged and warped in efforts to tilt the playing field toward one way of doing things or the other. How these battles turn out over the next decade or so will likely have a significant effect on how we come to know what is going on in the world we occupy, and to what extent and in what forms we will be able--as autonomous individuals, as citizens, and as participants in cultures and communities--to affect how we and others see the world as it is and as it might be. + +2~ THE EMERGENCE OF THE NETWORKED INFORMATION ECONOMY +={information economy:emergence of+9;networked information economy+52|emergence of+9} + +The most advanced economies in the world today have made two parallel shifts that, paradoxically, make possible a significant attenuation of the limitations that market-based production places on the pursuit of the political ,{[pg 3]}, values central to liberal societies. The first move, in the making for more than a century, is to an economy centered on information (financial services, accounting, software, science) and cultural (films, music) production, and the manipulation of symbols (from making sneakers to branding them and manufacturing the cultural significance of the Swoosh). The second is the move to a communications environment built on cheap processors with high computation capabilities, interconnected in a pervasive network--the phenomenon we associate with the Internet. It is this second shift that allows for an increasing role for nonmarket production in the information and cultural production sector, organized in a radically more decentralized pattern than was true of this sector in the twentieth century. The first shift means that these new patterns of production--nonmarket and radically decentralized--will emerge, if permitted, at the core, rather than the periphery of the most advanced economies. It promises to enable social production and exchange to play a much larger role, alongside property- and marketbased production, than they ever have in modern democracies. +={nonmarket information producers+4;physical constraints on information production+2;production of information:physical constraints on+2} + +The first part of this book is dedicated to establishing a number of basic economic observations. Its overarching claim is that we are seeing the emergence of a new stage in the information economy, which I call the "networked information economy." It is displacing the industrial information economy that typified information production from about the second half of the nineteenth century and throughout the twentieth century. What characterizes the networked information economy is that decentralized individual action--specifically, new and important cooperative and coordinate action carried out through radically distributed, nonmarket mechanisms that do not depend on proprietary strategies--plays a much greater role than it did, or could have, in the industrial information economy. The catalyst for this change is the happenstance of the fabrication technology of computation, and its ripple effects throughout the technologies of communication and storage. The declining price of computation, communication, and storage have, as a practical matter, placed the material means of information and cultural production in the hands of a significant fraction of the world's population--on the order of a billion people around the globe. The core distinguishing feature of communications, information, and cultural production since the mid-nineteenth century was that effective communication spanning the ever-larger societies and geographies that came to make up the relevant political and economic units of the day required ever-larger investments of physical capital. Large-circulation mechanical presses, the telegraph ,{[pg 4]}, system, powerful radio and later television transmitters, cable and satellite, and the mainframe computer became necessary to make information and communicate it on scales that went beyond the very local. Wanting to communicate with others was not a sufficient condition to being able to do so. As a result, information and cultural production took on, over the course of this period, a more industrial model than the economics of information itself would have required. The rise of the networked, computer-mediated communications environment has changed this basic fact. The material requirements for effective information production and communication are now owned by numbers of individuals several orders of magnitude larger than the number of owners of the basic means of information production and exchange a mere two decades ago. +={capabilities of individuals:coordinated effects of individual actions;commercial model of communication+1;constraints of information production, physical+1;coordinated effects of individual actions+2;individual capabilities and action:coordinated effects of individual actions+2;industrial model of communication+1;information production: physical constraints on+1;institutional ecology of digital environment+1;traditional model of communication} + +The removal of the physical constraints on effective information production has made human creativity and the economics of information itself the core structuring facts in the new networked information economy. These have quite different characteristics than coal, steel, and manual human labor, which characterized the industrial economy and structured our basic thinking about economic production for the past century. They lead to three observations about the emerging information production system. First, nonproprietary strategies have always been more important in information production than they were in the production of steel or automobiles, even when the economics of communication weighed in favor of industrial models. Education, arts and sciences, political debate, and theological disputation have always been much more importantly infused with nonmarket motivations and actors than, say, the automobile industry. As the material barrier that ultimately nonetheless drove much of our information environment to be funneled through the proprietary, market-based strategies is removed, these basic nonmarket, nonproprietary, motivations and organizational forms should in principle become even more important to the information production system. + +Second, we have in fact seen the rise of nonmarket production to much greater importance. Individuals can reach and inform or edify millions around the world. Such a reach was simply unavailable to diversely motivated individuals before, unless they funneled their efforts through either market organizations or philanthropically or state-funded efforts. The fact that every such effort is available to anyone connected to the network, from anywhere, has led to the emergence of coordinate effects, where the aggregate effect of individual action, even when it is not self-consciously cooperative, produces ,{[pg 5]}, the coordinate effect of a new and rich information environment. One needs only to run a Google search on any subject of interest to see how the "information good" that is the response to one's query is produced by the coordinate effects of the uncoordinated actions of a wide and diverse range of individuals and organizations acting on a wide range of motivations-- both market and nonmarket, state-based and nonstate. +={aggregate effect of individual action} + +Third, and likely most radical, new, and difficult for observers to believe, is the rise of effective, large-scale cooperative efforts--peer production of information, knowledge, and culture. These are typified by the emergence of free and open-source software. We are beginning to see the expansion of this model not only to our core software platforms, but beyond them into every domain of information and cultural production--and this book visits these in many different domains--from peer production of encyclopedias, to news and commentary, to immersive entertainment. +={free software+1;open-source software+1;peer production;software, open-source} + +It is easy to miss these changes. They run against the grain of some of our most basic Economics 101 intuitions, intuitions honed in the industrial economy at a time when the only serious alternative seen was state Communism--an alternative almost universally considered unattractive today. The undeniable economic success of free software has prompted some leading-edge economists to try to understand why many thousands of loosely networked free software developers can compete with Microsoft at its own game and produce a massive operating system--GNU/Linux. That growing literature, consistent with its own goals, has focused on software and the particulars of the free and open-source software development communities, although Eric von Hippel's notion of "user-driven innovation" has begun to expand that focus to thinking about how individual need and creativity drive innovation at the individual level, and its diffusion through networks of likeminded individuals. The political implications of free software have been central to the free software movement and its founder, Richard Stallman, and were developed provocatively and with great insight by Eben Moglen. Free software is but one salient example of a much broader phenomenon. Why can fifty thousand volunteers successfully coauthor /{Wikipedia}/, the most serious online alternative to the Encyclopedia Britannica, and then turn around and give it away for free? Why do 4.5 million volunteers contribute their leftover computer cycles to create the most powerful supercomputer on Earth, SETI@Home? Without a broadly accepted analytic model to explain these phenomena, we tend to treat them as curiosities, perhaps transient fads, possibly of significance in one market segment or another. We ,{[pg 6]}, should try instead to see them for what they are: a new mode of production emerging in the middle of the most advanced economies in the world-- those that are the most fully computer networked and for which information goods and services have come to occupy the highest-valued roles. +={Moglen, Eben;von Hippel, Eric;Stallman, Richard} + +Human beings are, and always have been, diversely motivated beings. We act instrumentally, but also noninstrumentally. We act for material gain, but also for psychological well-being and gratification, and for social connectedness. There is nothing new or earth-shattering about this, except perhaps to some economists. In the industrial economy in general, and the industrial information economy as well, most opportunities to make things that were valuable and important to many people were constrained by the physical capital requirements of making them. From the steam engine to the assembly line, from the double-rotary printing press to the communications satellite, the capital constraints on action were such that simply wanting to do something was rarely a sufficient condition to enable one to do it. Financing the necessary physical capital, in turn, oriented the necessarily capital-intensive projects toward a production and organizational strategy that could justify the investments. In market economies, that meant orienting toward market production. In state-run economies, that meant orienting production toward the goals of the state bureaucracy. In either case, the practical individual freedom to cooperate with others in making things of value was limited by the extent of the capital requirements of production. +={behavior:motivation to produce+2;capital for production+1;constraints of information production, monetary;diversity:human motivation+1|motivation to produce+1;human motivation;incentives to produce;information production capital+1;monetary constraints on information production+2;motivation to produce+1;physical capital for production+2;production capital+2} + +In the networked information economy, the physical capital required for production is broadly distributed throughout society. Personal computers and network connections are ubiquitous. This does not mean that they cannot be used for markets, or that individuals cease to seek market opportunities. It does mean, however, that whenever someone, somewhere, among the billion connected human beings, and ultimately among all those who will be connected, wants to make something that requires human creativity, a computer, and a network connection, he or she can do so--alone, or in cooperation with others. He or she already has the capital capacity necessary to do so; if not alone, then at least in cooperation with other individuals acting for complementary reasons. The result is that a good deal more that human beings value can now be done by individuals, who interact with each other socially, as human beings and as social beings, rather than as market actors through the price system. Sometimes, under conditions I specify in some detail, these nonmarket collaborations can be better at motivating effort and can allow creative people to work on information projects more ,{[pg 7]}, efficiently than would traditional market mechanisms and corporations. The result is a flourishing nonmarket sector of information, knowledge, and cultural production, based in the networked environment, and applied to anything that the many individuals connected to it can imagine. Its outputs, in turn, are not treated as exclusive property. They are instead subject to an increasingly robust ethic of open sharing, open for all others to build on, extend, and make their own. + +Because the presence and importance of nonmarket production has become so counterintuitive to people living in market-based economies at the end of the twentieth century, part I of this volume is fairly detailed and technical; overcoming what we intuitively "know" requires disciplined analysis. Readers who are not inclined toward economic analysis should at least read the introduction to part I, the segments entitled "When Information Production Meets the Computer Network" and "Diversity of Strategies in our Current Production System" in chapter 2, and the case studies in chapter 3. These should provide enough of an intuitive feel for what I mean by the diversity of production strategies for information and the emergence of nonmarket individual and cooperative production, to serve as the basis for the more normatively oriented parts of the book. Readers who are genuinely skeptical of the possibility that nonmarket production is sustainable and effective, and in many cases is an efficient strategy for information, knowledge, and cultural production, should take the time to read part I in its entirety. The emergence of precisely this possibility and practice lies at the very heart of my claims about the ways in which liberal commitments are translated into lived experiences in the networked environment, and forms the factual foundation of the political-theoretical and the institutional-legal discussion that occupies the remainder of the book. + +2~ NETWORKED INFORMATION ECONOMY AND LIBERAL, DEMOCRATIC SOCIETIES +={democratic societies+15;information economy:democracy and liberalism+15;liberal societies+15;networked information economy:democracy and liberalism+15} + +How we make information, how we get it, how we speak to others, and how others speak to us are core components of the shape of freedom in any society. Part II of this book provides a detailed look at how the changes in the technological, economic, and social affordances of the networked information environment affect a series of core commitments of a wide range of liberal democracies. The basic claim is that the diversity of ways of organizing information production and use opens a range of possibilities for pursuing % ,{[pg 8]}, the core political values of liberal societies--individual freedom, a more genuinely participatory political system, a critical culture, and social justice. These values provide the vectors of political morality along which the shape and dimensions of any liberal society can be plotted. Because their practical policy implications are often contradictory, rather than complementary, the pursuit of each places certain limits on how we pursue the others, leading different liberal societies to respect them in different patterns. How much a society constrains the democratic decision-making powers of the majority in favor of individual freedom, or to what extent it pursues social justice, have always been attributes that define the political contours and nature of that society. But the economics of industrial production, and our pursuit of productivity and growth, have imposed a limit on how we can pursue any mix of arrangements to implement our commitments to freedom and justice. Singapore is commonly trotted out as an extreme example of the trade-off of freedom for welfare, but all democracies with advanced capitalist economies have made some such trade-off. Predictions of how well we will be able to feed ourselves are always an important consideration in thinking about whether, for example, to democratize wheat production or make it more egalitarian. Efforts to push workplace democracy have also often foundered on the shoals--real or imagined--of these limits, as have many plans for redistribution in the name of social justice. Market-based, proprietary production has often seemed simply too productive to tinker with. The emergence of the networked information economy promises to expand the horizons of the feasible in political imagination. Different liberal polities can pursue different mixtures of respect for different liberal commitments. However, the overarching constraint represented by the seeming necessity of the industrial model of information and cultural production has significantly shifted as an effective constraint on the pursuit of liberal commitments. + +3~ Enhanced Autonomy +={autonomy+3;individual autonomy+2;democratic societies: autonomy+3;liberal societies:autonomy+3} + +The networked information economy improves the practical capacities of individuals along three dimensions: (1) it improves their capacity to do more for and by themselves; (2) it enhances their capacity to do more in loose commonality with others, without being constrained to organize their relationship through a price system or in traditional hierarchical models of social and economic organization; and (3) it improves the capacity of individuals to do more in formal organizations that operate outside the market sphere. This enhanced autonomy is at the core of all the other improvements I ,{[pg 9]}, describe. Individuals are using their newly expanded practical freedom to act and cooperate with others in ways that improve the practiced experience of democracy, justice and development, a critical culture, and community. +={institutional ecology of digital environment+1;loose affiliations+1;networked public sphere:loose affiliations+1;norms (social):loose affiliations+1;peer production: loose affiliations;public sphere:loose affiliations+1;regulation by social norms: loose affiliations+1;scope of loose relations+1;social relations and norms: loose affiliations+1} + +I begin, therefore, with an analysis of the effects of networked information economy on individual autonomy. First, individuals can do more for themselves independently of the permission or cooperation of others. They can create their own expressions, and they can seek out the information they need, with substantially less dependence on the commercial mass media of the twentieth century. Second, and no less importantly, individuals can do more in loose affiliation with others, rather than requiring stable, long-term relations, like coworker relations or participation in formal organizations, to underwrite effective cooperation. Very few individuals living in the industrial information economy could, in any realistic sense, decide to build a new Library of Alexandria of global reach, or to start an encyclopedia. As collaboration among far-flung individuals becomes more common, the idea of doing things that require cooperation with others becomes much more attainable, and the range of projects individuals can choose as their own therefore qualitatively increases. The very fluidity and low commitment required of any given cooperative relationship increases the range and diversity of cooperative relations people can enter, and therefore of collaborative projects they can conceive of as open to them. + +These ways in which autonomy is enhanced require a fairly substantive and rich conception of autonomy as a practical lived experience, rather than the formal conception preferred by many who think of autonomy as a philosophical concept. But even from a narrower perspective, which spans a broader range of conceptions of autonomy, at a minimum we can say that individuals are less susceptible to manipulation by a legally defined class of others--the owners of communications infrastructure and media. The networked information economy provides varied alternative platforms for communication, so that it moderates the power of the traditional mass-media model, where ownership of the means of communication enables an owner to select what others view, and thereby to affect their perceptions of what they can and cannot do. Moreover, the diversity of perspectives on the way the world is and the way it could be for any given individual is qualitatively increased. This gives individuals a significantly greater role in authoring their own lives, by enabling them to perceive a broader range of possibilities, and by providing them a richer baseline against which to measure the choices they in fact make. +={commercial model of communication;industrial model of communication;traditional model of communication} + +% ,{[pg 10]}, + +3~ Democracy: The Networked Public Sphere +={democratic societies: public sphere, shift from mass media+4} + +The second major implication of the networked information economy is the shift it enables from the mass-mediated public sphere to a networked public sphere. This shift is also based on the increasing freedom individuals enjoy to participate in creating information and knowledge, and the possibilities it presents for a new public sphere to emerge alongside the commercial, mass-media markets. The idea that the Internet democratizes is hardly new. It has been a staple of writing about the Internet since the early 1990s. The relatively simple first-generation claims about the liberating effects of the Internet, summarized in the U.S. Supreme Court's celebration of its potential to make everyone a pamphleteer, came under a variety of criticisms and attacks over the course of the past half decade or so. Here, I offer a detailed analysis of how the emergence of a networked information economy in particular, as an alternative to mass media, improves the political public sphere. The first-generation critique of the democratizing effect of the Internet was based on various implications of the problem of information overload, or the Babel objection. According to the Babel objection, when everyone can speak, no one can be heard, and we devolve either to a cacophony or to the reemergence of money as the distinguishing factor between statements that are heard and those that wallow in obscurity. The second-generation critique was that the Internet is not as decentralized as we thought in the 1990s. The emerging patterns of Internet use show that very few sites capture an exceedingly large amount of attention, and millions of sites go unnoticed. In this world, the Babel objection is perhaps avoided, but only at the expense of the very promise of the Internet as a democratic medium. +={centralization of communications:decentralization+3;decentralization of communications+3;democratic societies: shift from mass-media communications model+3;Babel objection;commercial model of communication:shift away from+2;industrial model of communication:shift away from+3;institutional ecology of digital environment:shift away from+3;liberal societies: public sphere, shift from mass media+3;networked public sphere+3;public sphere+3;traditional model of communication: shift away from+3;information overload and Babel objection} + +In chapters 6 and 7, I offer a detailed and updated analysis of this, perhaps the best-known and most contentious claim about the Internet's liberalizing effects. First, it is important to understand that any consideration of the democratizing effects of the Internet must measure its effects as compared to the commercial, mass-media-based public sphere, not as compared to an idealized utopia that we embraced a decade ago of how the Internet might be. Commercial mass media that have dominated the public spheres of all modern democracies have been studied extensively. They have been shown in extensive literature to exhibit a series of failures as platforms for public discourse. First, they provide a relatively limited intake basin--that is, too many observations and concerns of too many people in complex modern ,{[pg 11]}, societies are left unobserved and unattended to by the small cadre of commercial journalists charged with perceiving the range of issues of public concern in any given society. Second, particularly where the market is concentrated, they give their owners inordinate power to shape opinion and information. This power they can either use themselves or sell to the highest bidder. And third, whenever the owners of commercial media choose not to exercise their power in this way, they then tend to program toward the inane and soothing, rather than toward that which will be politically engaging, and they tend to oversimplify complex public discussions. On the background of these limitations of the mass media, I suggest that the networked public sphere enables many more individuals to communicate their observations and their viewpoints to many others, and to do so in a way that cannot be controlled by media owners and is not as easily corruptible by money as were the mass media. + +The empirical and theoretical literature about network topology and use provides answers to all the major critiques of the claim that the Internet improves the structure of the public sphere. In particular, I show how a wide range of mechanisms--starting from the simple mailing list, through static Web pages, the emergence of writable Web capabilities, and mobility--are being embedded in a social system for the collection of politically salient information, observations, and comments, and provide a platform for discourse. These platforms solve some of the basic limitations of the commercial, concentrated mass media as the core platform of the public sphere in contemporary complex democracies. They enable anyone, anywhere, to go through his or her practical life, observing the social environment through new eyes--the eyes of someone who could actually inject a thought, a criticism, or a concern into the public debate. Individuals become less passive, and thus more engaged observers of social spaces that could potentially become subjects for political conversation; they become more engaged participants in the debates about their observations. The various formats of the networked public sphere provide anyone with an outlet to speak, to inquire, to investigate, without need to access the resources of a major media organization. We are seeing the emergence of new, decentralized approaches to fulfilling the watchdog function and to engaging in political debate and organization. These are being undertaken in a distinctly nonmarket form, in ways that would have been much more difficult to pursue effectively, as a standard part of the construction of the public sphere, before the networked information environment. Working through detailed examples, I try ,{[pg 12]}, to render the optimism about the democratic advantages of the networked public sphere a fully specified argument. + +The networked public sphere has also begun to respond to the information overload problem, but without re-creating the power of mass media at the points of filtering and accreditation. There are two core elements to these developments: First, we are beginning to see the emergence of nonmarket, peer-produced alternative sources of filtration and accreditation in place of the market-based alternatives. Relevance and accreditation are themselves information goods, just like software or an encyclopedia. What we are seeing on the network is that filtering for both relevance and accreditation has become the object of widespread practices of mutual pointing, of peer review, of pointing to original sources of claims, and its complement, the social practice that those who have some ability to evaluate the claims in fact do comment on them. The second element is a contingent but empirically confirmed observation of how users actually use the network. As a descriptive matter, information flow in the network is much more ordered than a simple random walk in the cacophony of information flow would suggest, and significantly less centralized than the mass media environment was. Some sites are much more visible and widely read than others. This is true both when one looks at the Web as a whole, and when one looks at smaller clusters of similar sites or users who tend to cluster. Most commentators who have looked at this pattern have interpreted it as a reemergence of mass media--the dominance of the few visible sites. But a full consideration of the various elements of the network topology literature supports a very different interpretation, in which order emerges in the networked environment without re-creating the failures of the mass-media-dominated public sphere. Sites cluster around communities of interest: Australian fire brigades tend to link to other Australian fire brigades, conservative political blogs (Web logs or online journals) in the United States to other conservative political blogs in the United States, and to a lesser but still significant extent, to liberal political blogs. In each of these clusters, the pattern of some high visibility nodes continues, but as the clusters become small enough, many more of the sites are moderately linked to each other in the cluster. Through this pattern, the network seems to be forming into an attention backbone. "Local" clusters--communities of interest--can provide initial vetting and "peer-review-like" qualities to individual contributions made within an interest cluster. Observations that are seen as significant within a community ,{[pg 13]}, of interest make their way to the relatively visible sites in that cluster, from where they become visible to people in larger ("regional") clusters. This continues until an observation makes its way to the "superstar" sites that hundreds of thousands of people might read and use. This path is complemented by the practice of relatively easy commenting and posting directly to many of the superstar sites, which creates shortcuts to wide attention. It is fairly simple to grasp intuitively why these patterns might emerge. Users tend to treat other people's choices about what to link to and to read as good indicators of what is worthwhile for them. They are not slavish in this, though; they apply some judgment of their own as to whether certain types of users--say, political junkies of a particular stripe, or fans of a specific television program--are the best predictors of what will be interesting for them. The result is that attention in the networked environment is more dependent on being interesting to an engaged group of people than it is in the mass-media environment, where moderate interest to large numbers of weakly engaged viewers is preferable. Because of the redundancy of clusters and links, and because many clusters are based on mutual interest, not on capital investment, it is more difficult to buy attention on the Internet than it is in mass media outlets, and harder still to use money to squelch an opposing view. These characteristics save the networked environment from the Babel objection without reintroducing excessive power in any single party or small cluster of them, and without causing a resurgence in the role of money as a precondition to the ability to speak publicly. +={accreditation: as public good;Babel objection;clusters in network topology;information overload and Babel objection;filtering: as public good;information flow;local clusters in network topology;regional clusters in network topology;relevance filtering:as public good} + +3~ Justice and Human Development +={access: human development and justice+3;democratic societies:justice and human development+3;human development and justice+3;justice and human development+3;liberal societies:justice and human development} + +Information, knowledge, and information-rich goods and tools play a significant role in economic opportunity and human development. While the networked information economy cannot solve global hunger and disease, its emergence does open reasonably well-defined new avenues for addressing and constructing some of the basic requirements of justice and human development. Because the outputs of the networked information economy are usually nonproprietary, it provides free access to a set of the basic instrumentalities of economic opportunity and the basic outputs of the information economy. From a liberal perspective concerned with justice, at a minimum, these outputs become more readily available as "finished goods" to those who are least well off. More importantly, the availability of free information resources makes participating in the economy less dependent on ,{[pg 14]}, surmounting access barriers to financing and social-transactional networks that made working out of poverty difficult in industrial economies. These resources and tools thus improve equality of opportunity. + +From a more substantive and global perspective focused on human development, the freedom to use basic resources and capabilities allows improved participation in the production of information and information-dependent components of human development. First, and currently most advanced, the emergence of a broad range of free software utilities makes it easier for poor and middle-income countries to obtain core software capabilities. More importantly, free software enables the emergence of local capabilities to provide software services, both for national uses and as a basis for participating in a global software services industry, without need to rely on permission from multinational software companies. Scientific publication is beginning to use commons-based strategies to publish important sources of information in a way that makes the outputs freely available in poorer countries. More ambitiously, we begin to see in agricultural research a combined effort of public, nonprofit, and open-source-like efforts being developed and applied to problems of agricultural innovation. The ultimate purpose is to develop a set of basic capabilities that would allow collaboration among farmers and scientists, in both poor countries and around the globe, to develop better, more nutritious crops to improve food security throughout the poorer regions of the world. Equally ambitious, but less operationally advanced, we are beginning to see early efforts to translate this system of innovation to health-related products. +={free software:human development and justice;innovation:human development+1;open-source software:human development and justice;software, open-source:human development and justice} + +All these efforts are aimed at solving one of the most glaring problems of poverty and poor human development in the global information economy: Even as opulence increases in the wealthier economies--as information and innovation offer longer and healthier lives that are enriched by better access to information, knowledge, and culture--in many places, life expectancy is decreasing, morbidity is increasing, and illiteracy remains rampant. Some, although by no means all, of this global injustice is due to the fact that we have come to rely ever-more exclusively on proprietary business models of the industrial economy to provide some of the most basic information components of human development. As the networked information economy develops new ways of producing information, whose outputs are not treated as proprietary and exclusive but can be made available freely to everyone, it offers modest but meaningful opportunities for improving human development everywhere. We are seeing early signs of the emergence of an innovation ,{[pg 15]}, ecosystem made of public funding, traditional nonprofits, and the newly emerging sector of peer production that is making it possible to advance human development through cooperative efforts in both rich countries and poor. + +3~ A Critical Culture and Networked Social Relations + +The networked information economy also allows for the emergence of a more critical and self-reflective culture. In the past decade, a number of legal scholars--Niva Elkin Koren, Terry Fisher, Larry Lessig, and Jack Balkin-- have begun to examine how the Internet democratizes culture. Following this work and rooted in the deliberative strand of democratic theory, I suggest that the networked information environment offers us a more attractive cultural production system in two distinct ways: (1) it makes culture more transparent, and (2) it makes culture more malleable. Together, these mean that we are seeing the emergence of a new folk culture--a practice that has been largely suppressed in the industrial era of cultural production--where many more of us participate actively in making cultural moves and finding meaning in the world around us. These practices make their practitioners better "readers" of their own culture and more self-reflective and critical of the culture they occupy, thereby enabling them to become more self-reflective participants in conversations within that culture. This also allows individuals much greater freedom to participate in tugging and pulling at the cultural creations of others, "glomming on" to them, as Balkin puts it, and making the culture they occupy more their own than was possible with mass-media culture. In these senses, we can say that culture is becoming more democratic: self-reflective and participatory. +={Balkin, Jack;communities:critical culture and self-reflection+1;critical culture and self-reflection+1;culture:criticality of (self-reflection)+1;democratic societies:critical culture and social relations+1;Fisher, William (Terry);Koren, Niva Elkin;Lessig, Lawrence (Larry);self-organization: See clusters in network topology self-reflection+1;liberal societies:critical culture and social relations} + +Throughout much of this book, I underscore the increased capabilities of individuals as the core driving social force behind the networked information economy. This heightened individual capacity has raised concerns by many that the Internet further fragments community, continuing the long trend of industrialization. A substantial body of empirical literature suggests, however, that we are in fact using the Internet largely at the expense of television, and that this exchange is a good one from the perspective of social ties. We use the Internet to keep in touch with family and intimate friends, both geographically proximate and distant. To the extent we do see a shift in social ties, it is because, in addition to strengthening our strong bonds, we are also increasing the range and diversity of weaker connections. Following ,{[pg 16]}, Manuel Castells and Barry Wellman, I suggest that we have become more adept at filling some of the same emotional and context-generating functions that have traditionally been associated with the importance of community with a network of overlapping social ties that are limited in duration or intensity. +={attention fragmentation;Castells, Manuel;fragmentation of communication;norms (social): fragmentation of communication;regulation by social norms: fragmentation of communication;social relations and norms:fragmentation of communication;communities: fragmentation of;diversity:fragmentation of communication;Castells, Manuel} + +2~ FOUR METHODOLOGICAL COMMENTS +={information economy:methodological choices+14;networked environmental policy:See policy;networked information economy:methodological choices+14} + +There are four methodological choices represented by the thesis that I have outlined up to this point, and therefore in this book as a whole, which require explication and defense. The first is that I assign a very significant role to technology. The second is that I offer an explanation centered on social relations, but operating in the domain of economics, rather than sociology. The third and fourth are more internal to liberal political theory. The third is that I am offering a liberal political theory, but taking a path that has usually been resisted in that literature--considering economic structure and the limits of the market and its supporting institutions from the perspective of freedom, rather than accepting the market as it is, and defending or criticizing adjustments through the lens of distributive justice. Fourth, my approach heavily emphasizes individual action in nonmarket relations. Much of the discussion revolves around the choice between markets and nonmarket social behavior. In much of it, the state plays no role, or is perceived as playing a primarily negative role, in a way that is alien to the progressive branches of liberal political thought. In this, it seems more of a libertarian or an anarchistic thesis than a liberal one. I do not completely discount the state, as I will explain. But I do suggest that what is special about our moment is the rising efficacy of individuals and loose, nonmarket affiliations as agents of political economy. Just like the market, the state will have to adjust to this new emerging modality of human action. Liberal political theory must first recognize and understand it before it can begin to renegotiate its agenda for the liberal state, progressive or otherwise. +={capabilities of individuals:technology and human affairs+5;human affairs, technology and+5;individual capabilities and action: technology and human affairs+5} + +3~ The Role of Technology in Human Affairs +={technology:role of+2} + +The first methodological choice concerns how one should treat the role of technology in the development of human affairs. The kind of technological determinism that typified Lewis Mumford, or, specifically in the area of communications, Marshall McLuhan, is widely perceived in academia today ,{[pg 17]}, as being too deterministic, though perhaps not so in popular culture. The contemporary effort to offer more nuanced, institution-based, and politicalchoice-based explanations is perhaps best typified by Paul Starr's recent and excellent work on the creation of the media. While these contemporary efforts are indeed powerful, one should not confuse a work like Elizabeth Eisenstein's carefully argued and detailed The Printing Press as an Agent of Change, with McLuhan's determinism. Assuming that technologies are just tools that happen, more or less, to be there, and are employed in any given society in a pattern that depends only on what that society and culture makes of them is too constrained. A society that has no wheel and no writing has certain limits on what it can do. Barry Wellman has imported into sociology a term borrowed from engineering--affordances.~{ Barry Wellman et al., "The Social Affordances of the Internet for Networked Individualism," JCMC 8, no. 3 (April 2003). }~ Langdon Winner called these the "political properties" of technologies.~{ Langdon Winner, ed., "Do Artifacts Have Politics?" in The Whale and The Reactor: A Search for Limits in an Age of High Technology (Chicago: University of Chicago Press, 1986), 19-39. }~ An earlier version of this idea is Harold Innis's concept of "the bias of communications."~{ Harold Innis, The Bias of Communication (Toronto: University of Toronto Press, 1951). Innis too is often lumped with McLuhan and Walter Ong as a technological determinist. His work was, however, one of a political economist, and he emphasized the relationship between technology and economic and social organization, much more than the deterministic operation of technology on human cognition and capability. }~ In Internet law and policy debates this approach has become widely adopted through the influential work of Lawrence Lessig, who characterized it as "code is law."~{ Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999). }~ +={deregulation: See policy determinism, technological+1;Eisenstein, Elizabeth;McLuhan, Marshall;Mumford, Lewis;Winner, Langdon;Wellman, Barry;Starr, Paul} + +The idea is simple to explain, and distinct from a naïve determinism. Different technologies make different kinds of human action and interaction easier or harder to perform. All other things being equal, things that are easier to do are more likely to be done, and things that are harder to do are less likely to be done. All other things are never equal. That is why technological determinism in the strict sense--if you have technology "t," you should expect social structure or relation "s" to emerge--is false. Ocean navigation had a different adoption and use when introduced in states whose land empire ambitions were effectively countered by strong neighbors--like Spain and Portugal--than in nations that were focused on building a vast inland empire, like China. Print had different effects on literacy in countries where religion encouraged individual reading--like Prussia, Scotland, England, and New England--than where religion discouraged individual, unmediated interaction with texts, like France and Spain. This form of understanding the role of technology is adopted here. Neither deterministic nor wholly malleable, technology sets some parameters of individual and social action. It can make some actions, relationships, organizations, and institutions easier to pursue, and others harder. In a challenging environment--be the challenges natural or human--it can make some behaviors obsolete by increasing the efficacy of directly competitive strategies. However, within the realm of the feasible--uses not rendered impossible by the adoption or rejection of a technology--different patterns of adoption and use ,{[pg 18]}, can result in very different social relations that emerge around a technology. Unless these patterns are in competition, or unless even in competition they are not catastrophically less effective at meeting the challenges, different societies can persist with different patterns of use over long periods. It is the feasibility of long-term sustainability of different patterns of use that makes this book relevant to policy, not purely to theory. The same technologies of networked computers can be adopted in very different patterns. There is no guarantee that networked information technology will lead to the improvements in innovation, freedom, and justice that I suggest are possible. That is a choice we face as a society. The way we develop will, in significant measure, depend on choices we make in the next decade or so. + +3~ The Role of Economic Analysis and Methodological Individualism +={individualist methodologies+1;economic analysis, role of+1} + +It should be emphasized, as the second point, that this book has a descriptive methodology that is distinctly individualist and economic in orientation, which is hardly the only way to approach this problem. Manuel Castells's magisterial treatment of the networked society~{ Manuel Castells, The Rise of Networked Society (Cambridge, MA, and Oxford: Blackwell Publishers, 1996). }~ locates its central characteristic in the shift from groups and hierarchies to networks as social and organizational models--looser, flexible arrangements of human affairs. Castells develops this theory as he describes a wide range of changes, from transportation networks to globalization and industrialization. In his work, the Internet fits into this trend, enabling better coordination and cooperation in these sorts of loosely affiliated networks. My own emphasis is on the specific relative roles of market and nonmarket sectors, and how that change anchors the radical decentralization that he too observes, as a matter of sociological observation. I place at the core of the shift the technical and economic characteristics of computer networks and information. These provide the pivot for the shift toward radical decentralization of production. They underlie the shift from an information environment dominated by proprietary, market-oriented action, to a world in which nonproprietary, nonmarket transactional frameworks play a large role alongside market production. This newly emerging, nonproprietary sector affects to a substantial degree the entire information environment in which individuals and societies live their lives. If there is one lesson we can learn from globalization and the ever-increasing reach of the market, it is that the logic of the market exerts enormous pressure on existing social structures. If we are indeed seeing the emergence of a substantial component of nonmarket production at the very ,{[pg 19]}, core of our economic engine--the production and exchange of information, and through it of information-based goods, tools, services, and capabilities-- then this change suggests a genuine limit on the extent of the market. Such a limit, growing from within the very market that it limits, in its most advanced loci, would represent a genuine shift in direction for what appeared to be the ever-increasing global reach of the market economy and society in the past half century. +={Castells, Manuel;methodological individualism;nonmarket information producers: role of} + +3~ Economic Structure in Liberal Political Theory +={economics in liberal political theory+2;liberal political theory+2} + +The third point has to do with the role of economic structure in liberal political theory. My analysis in this regard is practical and human centric. By this, I mean to say two things: First, I am concerned with human beings, with individuals as the bearers of moral claims regarding the structure of the political and economic systems they inhabit. Within the liberal tradition, the position I take is humanistic and general, as opposed to political and particular. It is concerned first and foremost with the claims of human beings as human beings, rather than with the requirements of democracy or the entitlements of citizenship or membership in a legitimate or meaningfully self-governed political community. There are diverse ways of respecting the basic claims of human freedom, dignity, and well-being. Different liberal polities do so with different mixes of constitutional and policy practices. The rise of global information economic structures and relationships affects human beings everywhere. In some places, it complements democratic traditions. In others, it destabilizes constraints on liberty. An understanding of how we can think of this moment in terms of human freedom and development must transcend the particular traditions, both liberal and illiberal, of any single nation. The actual practice of freedom that we see emerging from the networked environment allows people to reach across national or social boundaries, across space and political division. It allows people to solve problems together in new associations that are outside the boundaries of formal, legal-political association. In this fluid social economic environment, the individual's claims provide a moral anchor for considering the structures of power and opportunity, of freedom and well-being. Furthermore, while it is often convenient and widely accepted to treat organizations or communities as legal entities, as "persons," they are not moral agents. Their role in an analysis of freedom and justice is derivative from their role--both enabling and constraining--as structuring context in which human beings, ,{[pg 20]}, the actual moral agents of political economy, find themselves. In this regard, my positions here are decidedly "liberal," as opposed to either communitarian or critical. +={dignity;well-being;freedom;communities:as persons+1} + +Second, I am concerned with actual human beings in actual historical settings, not with representations of human beings abstracted from their settings. These commitments mean that freedom and justice for historically situated individuals are measured from a first-person, practical perspective. No constraints on individual freedom and no sources of inequality are categorically exempt from review, nor are any considered privileged under this view. Neither economy nor cultural heritage is given independent moral weight. A person whose life and relations are fully regimented by external forces is unfree, no matter whether the source of regimentation can be understood as market-based, authoritarian, or traditional community values. This does not entail a radical anarchism or libertarianism. Organizations, communities, and other external structures are pervasively necessary for human beings to flourish and to act freely and effectively. This does mean, however, that I think of these structures only from the perspective of their effects on human beings. Their value is purely derivative from their importance to the actual human beings that inhabit them and are structured--for better or worse--by them. As a practical matter, this places concern with market structure and economic organization much closer to the core of questions of freedom than liberal theory usually is willing to do. Liberals have tended to leave the basic structure of property and markets either to libertarians--who, like Friedrich Hayek, accepted its present contours as "natural," and a core constituent element of freedom--or to Marxists and neo-Marxists. I treat property and markets as just one domain of human action, with affordances and limitations. Their presence enhances freedom along some dimensions, but their institutional requirements can become sources of constraint when they squelch freedom of action in nonmarket contexts. Calibrating the reach of the market, then, becomes central not only to the shape of justice or welfare in a society, but also to freedom. +={autonomy+5;capabilities of individuals+5;democratic societies:individual capabilities in+5;individual autonomy:individual capabilities in+5;individual capabilities and action+5;Hayek, Friedrich} + +3~ Whither the State? +={government:role of+4;state, role of+4} + +The fourth and last point emerges in various places throughout this book, but deserves explicit note here. What I find new and interesting about the networked information economy is the rise of individual practical capabilities, and the role that these new capabilities play in increasing the relative salience of nonproprietary, often nonmarket individual and social behavior. ,{[pg 21]}, + +In my discussion of autonomy and democracy, of justice and a critical culture, I emphasize the rise of individual and cooperative private action and the relative decrease in the dominance of market-based and proprietary action. Where in all this is the state? For the most part, as you will see particularly in chapter 11, the state in both the United States and Europe has played a role in supporting the market-based industrial incumbents of the twentieth-century information production system at the expense of the individuals who make up the emerging networked information economy. Most state interventions have been in the form of either captured legislation catering to incumbents, or, at best, well-intentioned but wrongheaded efforts to optimize the institutional ecology for outdated modes of information and cultural production. In the traditional mapping of political theory, a position such as the one I present here--that freedom and justice can and should best be achieved by a combination of market action and private, voluntary (not to say charitable) nonmarket action, and that the state is a relatively suspect actor--is libertarian. Perhaps, given that I subject to similar criticism rules styled by their proponents as "property"--like "intellectual property" or "spectrum property rights"--it is anarchist, focused on the role of mutual aid and highly skeptical of the state. (It is quite fashionable nowadays to be libertarian, as it has been for a few decades, and more fashionable to be anarchist than it has been in a century.) + +The more modest truth is that my position is not rooted in a theoretical skepticism about the state, but in a practical diagnosis of opportunities, barriers, and strategies for achieving improvements in human freedom and development given the actual conditions of technology, economy, and politics. I have no objection in principle to an effective, liberal state pursuing one of a range of liberal projects and commitments. Here and there throughout this book you will encounter instances where I suggest that the state could play constructive roles, if it stopped listening to incumbents for long enough to realize this. These include, for example, municipal funding of neutral broadband networks, state funding of basic research, and possible strategic regulatory interventions to negate monopoly control over essential resources in the digital environment. However, the necessity for the state's affirmative role is muted because of my diagnosis of the particular trajectory of markets, on the one hand, and individual and social action, on the other hand, in the digitally networked information environment. The particular economics of computation and communications; the particular economics of information, knowledge, and cultural production; and the relative role of ,{[pg 22]}, information in contemporary, advanced economies have coalesced to make nonmarket individual and social action the most important domain of action in the furtherance of the core liberal commitments. Given these particular characteristics, there is more freedom to be found through opening up institutional spaces for voluntary individual and cooperative action than there is in intentional public action through the state. Nevertheless, I offer no particular reasons to resist many of the roles traditionally played by the liberal state. I offer no reason to think that, for example, education should stop being primarily a state-funded, public activity and a core responsibility of the liberal state, or that public health should not be so. I have every reason to think that the rise of nonmarket production enhances, rather than decreases, the justifiability of state funding for basic science and research, as the spillover effects of publicly funded information production can now be much greater and more effectively disseminated and used to enhance the general welfare. +={social action+1} + +The important new fact about the networked environment, however, is the efficacy and centrality of individual and collective social action. In most domains, freedom of action for individuals, alone and in loose cooperation with others, can achieve much of the liberal desiderata I consider throughout this book. From a global perspective, enabling individuals to act in this way also extends the benefits of liberalization across borders, increasing the capacities of individuals in nonliberal states to grab greater freedom than those who control their political systems would like. By contrast, as long as states in the most advanced market-based economies continue to try to optimize their institutional frameworks to support the incumbents of the industrial information economy, they tend to threaten rather than support liberal commitments. Once the networked information economy has stabilized and we come to understand the relative importance of voluntary private action outside of markets, the state can begin to adjust its policies to facilitate nonmarket action and to take advantage of its outputs to improve its own support for core liberal commitments. +={collaborative authorship: See also peer production collective social action} + +2~ THE STAKES OF IT ALL: THE BATTLE OVER THE INSTITUTIONAL ECOLOGY OF THE DIGITAL ENVIRONMENT +={commercial model of communication+9;industrial model of communication+9;information economy:institutional ecology+9;institutional ecology of digital environment+9;networked information economy:institutional ecology+9;proprietary rights+9;traditional model of communication+9} + +No benevolent historical force will inexorably lead this technologicaleconomic moment to develop toward an open, diverse, liberal equilibrium. ,{[pg 23]}, If the transformation I describe as possible occurs, it will lead to substantial redistribution of power and money from the twentieth-century industrial producers of information, culture, and communications--like Hollywood, the recording industry, and perhaps the broadcasters and some of the telecommunications services giants--to a combination of widely diffuse populations around the globe, and the market actors that will build the tools that make this population better able to produce its own information environment rather than buying it ready-made. None of the industrial giants of yore are taking this reallocation lying down. The technology will not overcome their resistance through an insurmountable progressive impulse. The reorganization of production and the advances it can bring in freedom and justice will emerge, therefore, only as a result of social and political action aimed at protecting the new social patterns from the incumbents' assaults. It is precisely to develop an understanding of what is at stake and why it is worth fighting for that I write this book. I offer no reassurances, however, that any of this will in fact come to pass. + +The battle over the relative salience of the proprietary, industrial models of information production and exchange and the emerging networked information economy is being carried out in the domain of the institutional ecology of the digital environment. In a wide range of contexts, a similar set of institutional questions is being contested: To what extent will resources necessary for information production and exchange be governed as a commons, free for all to use and biased in their availability in favor of none? To what extent will these resources be entirely proprietary, and available only to those functioning within the market or within traditional forms of wellfunded nonmarket action like the state and organized philanthropy? We see this battle played out at all layers of the information environment: the physical devices and network channels necessary to communicate; the existing information and cultural resources out of which new statements must be made; and the logical resources--the software and standards--necessary to translate what human beings want to say to each other into signals that machines can process and transmit. Its central question is whether there will, or will not, be a core common infrastructure that is governed as a commons and therefore available to anyone who wishes to participate in the networked information environment outside of the market-based, proprietary framework. +={property ownership+5;commons} + +This is not to say that property is in some sense inherently bad. Property, together with contract, is the core institutional component of markets, and ,{[pg 24]}, a core institutional element of liberal societies. It is what enables sellers to extract prices from buyers, and buyers to know that when they pay, they will be secure in their ability to use what they bought. It underlies our capacity to plan actions that require use of resources that, without exclusivity, would be unavailable for us to use. But property also constrains action. The rules of property are circumscribed and intended to elicit a particular datum--willingness and ability to pay for exclusive control over a resource. They constrain what one person or another can do with regard to a resource; that is, use it in some ways but not others, reveal or hide information with regard to it, and so forth. These constraints are necessary so that people must transact with each other through markets, rather than through force or social networks, but they do so at the expense of constraining action outside of the market to the extent that it depends on access to these resources. +={constrains of information production, physical+2;physical constraints on information production+2} + +Commons are another core institutional component of freedom of action in free societies, but they are structured to enable action that is not based on exclusive control over the resources necessary for action. For example, I can plan an outdoor party with some degree of certainty by renting a private garden or beach, through the property system. Alternatively, I can plan to meet my friends on a public beach or at Sheep's Meadow in Central Park. I can buy an easement from my neighbor to reach a nearby river, or I can walk around her property using the public road that makes up our transportation commons. Each institutional framework--property and commons--allows for a certain freedom of action and a certain degree of predictability of access to resources. Their complementary coexistence and relative salience as institutional frameworks for action determine the relative reach of the market and the domain of nonmarket action, both individual and social, in the resources they govern and the activities that depend on access to those resources. Now that material conditions have enabled the emergence of greater scope for nonmarket action, the scope and existence of a core common infrastructure that includes the basic resources necessary to produce and exchange information will shape the degree to which individuals will be able to act in all the ways that I describe as central to the emergence of a networked information economy and the freedoms it makes possible. +={commons} + +At the physical layer, the transition to broadband has been accompanied by a more concentrated market structure for physical wires and connections, and less regulation of the degree to which owners can control the flow of ,{[pg 25]}, information on their networks. The emergence of open wireless networks, based on "spectrum commons," counteracts this trend to some extent, as does the current apparent business practice of broadband owners not to use their ownership to control the flow of information over their networks. Efforts to overcome the broadband market concentration through the development of municipal broadband networks are currently highly contested in legislation and courts. The single most threatening development at the physical layer has been an effort driven primarily by Hollywood, over the past few years, to require the manufacturers of computation devices to design their systems so as to enforce the copyright claims and permissions imposed by the owners of digital copyrighted works. Should this effort succeed, the core characteristic of computers--that they are general-purpose devices whose abilities can be configured and changed over time by their owners as uses and preferences change--will be abandoned in favor of machines that can be trusted to perform according to factory specifications, irrespective of what their owners wish. The primary reason that these laws have not yet passed, and are unlikely to pass, is that the computer hardware and software, and electronics and telecommunications industries all understand that such a law would undermine their innovation and creativity. At the logical layer, we are seeing a concerted effort, again headed primarily by Hollywood and the recording industry, to shape the software and standards to make sure that digitally encoded cultural products can continue to be sold as packaged goods. The Digital Millennium Copyright Act and the assault on peer-to-peer technologies are the most obvious in this regard. +={boradband networks} + +More generally information, knowledge, and culture are being subjected to a second enclosure movement, as James Boyle has recently explored in depth. The freedom of action for individuals who wish to produce information, knowledge, and culture is being systematically curtailed in order to secure the economic returns demanded by the manufacturers of the industrial information economy. A rich literature in law has developed in response to this increasing enclosure over the past twenty years. It started with David Lange's evocative exploration of the public domain and Pamela Samuelson's prescient critique of the application of copyright to computer programs and digital materials, and continued through Jessica Litman's work on the public domain and digital copyright and Boyle's exploration of the basic romantic assumptions underlying our emerging "intellectual property" construct and the need for an environmentalist framework for preserving the public domain. It reached its most eloquent expression in Lawrence Lessig's arguments ,{[pg 26]}, for the centrality of free exchange of ideas and information to our most creative endeavors, and his diagnoses of the destructive effects of the present enclosure movement. This growing skepticism among legal academics has been matched by a long-standing skepticism among economists (to which I devote much discussion in chapter 2). The lack of either analytic or empirical foundation for the regulatory drive toward ever-stronger proprietary rights has not, however, resulted in a transformed politics of the regulation of intellectual production. Only recently have we begun to see a politics of information policy and "intellectual property" emerge from a combination of popular politics among computer engineers, college students, and activists concerned with the global poor; a reorientation of traditional media advocates; and a very gradual realization by high-technology firms that rules pushed by Hollywood can impede the growth of computer-based businesses. This political countermovement is tied to quite basic characteristics of the technology of computer communications, and to the persistent and growing social practices of sharing--some, like p2p (peer-to-peer) file sharing, in direct opposition to proprietary claims; others, increasingly, are instances of the emerging practices of making information on nonproprietary models and of individuals sharing what they themselves made in social, rather than market patterns. These economic and social forces are pushing at each other in opposite directions, and each is trying to mold the legal environment to better accommodate its requirements. We still stand at a point where information production could be regulated so that, for most users, it will be forced back into the industrial model, squelching the emerging model of individual, radically decentralized, and nonmarket production and its attendant improvements in freedom and justice. +={Boyle, James;Lange, David;Lessig, Lawrence (Larry);Litman, Jessica;Samuelson, Pamela;policy+2} + +Social and economic organization is not infinitely malleable. Neither is it always equally open to affirmative design. The actual practices of human interaction with information, knowledge, and culture and with production and consumption are the consequence of a feedback effect between social practices, economic organization, technological affordances, and formal constraints on behavior through law and similar institutional forms. These components of the constraints and affordances of human behavior tend to adapt dynamically to each other, so that the tension between the technological affordances, the social and economic practices, and the law are often not too great. During periods of stability, these components of the structure within which human beings live are mostly aligned and mutually reinforce ,{[pg 27]}, each other, but the stability is subject to shock at any one of these dimensions. Sometimes shock can come in the form of economic crisis, as it did in the United States during the Great Depression. Often it can come from an external physical threat to social institutions, like a war. Sometimes, though probably rarely, it can come from law, as, some would argue, it came from the desegregation decision in /{Brown v. Board of Education}/. Sometimes it can come from technology; the introduction of print was such a perturbation, as was, surely, the steam engine. The introduction of the highcapacity mechanical presses and telegraph ushered in the era of mass media. The introduction of radio created a similar perturbation, which for a brief moment destabilized the mass-media model, but quickly converged to it. In each case, the period of perturbation offered more opportunities and greater risks than the periods of relative stability. During periods of perturbation, more of the ways in which society organizes itself are up for grabs; more can be renegotiated, as the various other components of human stability adjust to the changes. To borrow Stephen Jay Gould's term from evolutionary theory, human societies exist in a series of punctuated equilibria. The periods of disequilibrium are not necessarily long. A mere twenty-five years passed between the invention of radio and its adaptation to the mass-media model. A similar period passed between the introduction of telephony and its adoption of the monopoly utility form that enabled only one-to-one limited communications. In each of these periods, various paths could have been taken. Radio showed us even within the past century how, in some societies, different paths were in fact taken and then sustained over decades. After a period of instability, however, the various elements of human behavioral constraint and affordances settled on a new stable alignment. During periods of stability, we can probably hope for little more than tinkering at the edges of the human condition. +={Gould, Stephen Jay;Luther, Martin} + +This book is offered, then, as a challenge to contemporary liberal democracies. We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will in some significant measure depend on policy choices that we make over the next decade or so. To be able to understand these choices, to be able to make them well, we must recognize that they are part of what is fundamentally a social and political choice--a choice about how to be free, equal, productive human beings under a new set of technological and ,{[pg 28]}, economic conditions. As economic policy, allowing yesterday's winners to dictate the terms of tomorrow's economic competition would be disastrous. As social policy, missing an opportunity to enrich democracy, freedom, and justice in our society while maintaining or even enhancing our productivity would be unforgivable. ,{[pg 29]}, + +:B~ Part One - The Networked Information Economy + +1~p1 Introduction +={communities:technology-defined social structure+9;norms (social):technology-defined structure+9;regulation by social norms: technology-defined structure+9;social relations and norms: technology-defined structure+9;social structure, defined by technology+9;technology:social structure defined by+9} + +For more than 150 years, new communications technologies have tended to concentrate and commercialize the production and exchange of information, while extending the geographic and social reach of information distribution networks. High-volume mechanical presses and the telegraph combined with new business practices to change newspapers from small-circulation local efforts into mass media. Newspapers became means of communications intended to reach ever-larger and more dispersed audiences, and their management required substantial capital investment. As the size of the audience and its geographic and social dispersion increased, public discourse developed an increasingly one-way model. Information and opinion that was widely known and formed the shared basis for political conversation and broad social relations flowed from ever more capital-intensive commercial and professional producers to passive, undifferentiated consumers. It was a model easily adopted and amplified by radio, television, and later cable and satellite communications. This trend did not cover all forms of communication and culture. Telephones and personal interactions, most importantly, ,{[pg 30]}, and small-scale distributions, like mimeographed handbills, were obvious alternatives. Yet the growth of efficient transportation and effective large-scale managerial and administrative structures meant that the sources of effective political and economic power extended over larger geographic areas and required reaching a larger and more geographically dispersed population. The economics of long-distance mass distribution systems necessary to reach this constantly increasing and more dispersed relevant population were typified by high up-front costs and low marginal costs of distribution. These cost characteristics drove cultural production toward delivery to everwider audiences of increasingly high production-value goods, whose fixed costs could be spread over ever-larger audiences--like television series, recorded music, and movies. Because of these economic characteristics, the mass-media model of information and cultural production and transmission became the dominant form of public communication in the twentieth century. + +The Internet presents the possibility of a radical reversal of this long trend. It is the first modern communications medium that expands its reach by decentralizing the capital structure of production and distribution of information, culture, and knowledge. Much of the physical capital that embeds most of the intelligence in the network is widely diffused and owned by end users. Network routers and servers are not qualitatively different from the computers that end users own, unlike broadcast stations or cable systems, which are radically different in economic and technical terms from the televisions that receive their signals. This basic change in the material conditions of information and cultural production and distribution have substantial effects on how we come to know the world we occupy and the alternative courses of action open to us as individuals and as social actors. Through these effects, the emerging networked environment structures how we perceive and pursue core values in modern liberal societies. + +Technology alone does not, however, determine social structure. The introduction of print in China and Korea did not induce the kind of profound religious and political reformation that followed the printed Bible and disputations in Europe. But technology is not irrelevant, either. Luther's were not the first disputations nailed to a church door. Print, however, made it practically feasible for more than 300,000 copies of Luther's publications to be circulated between 1517 and 1520 in a way that earlier disputations could not have been.~{ Elizabeth Eisenstein, Printing Press as an Agent of Change (Cambridge: Cambridge University Press, 1979). }~ Vernacular reading of the Bible became a feasible form of religious self-direction only when printing these Bibles and making them ,{[pg 31]}, available to individual households became economically feasible, and not when all copyists were either monks or otherwise dependent on the church. Technology creates feasibility spaces for social practice. Some things become easier and cheaper, others harder and more expensive to do or to prevent under different technological conditions. The interaction between these technological-economic feasibility spaces, and the social responses to these changes--both in terms of institutional changes, like law and regulation, and in terms of changing social practices--define the qualities of a period. The way life is actually lived by people within a given set of interlocking technological, economic, institutional, and social practices is what makes a society attractive or unattractive, what renders its practices laudable or lamentable. + +A particular confluence of technical and economic changes is now altering the way we produce and exchange information, knowledge, and culture in ways that could redefine basic practices, first in the most advanced economies, and eventually around the globe. The potential break from the past 150 years is masked by the somewhat liberal use of the term "information economy" in various permutations since the 1970s. The term has been used widely to signify the dramatic increase in the importance of usable information as a means of controlling production and the flow of inputs, outputs, and services. While often evoked as parallel to the "postindustrial" stage, in fact, the information economy was tightly linked throughout the twentieth century with controlling the processes of the industrial economy. This is clearest in the case of accounting firms and financial markets, but is true of the industrial modalities of organizing cultural production as well. Hollywood, the broadcast networks, and the recording industry were built around a physical production model. Once the cultural utterances, the songs or movies, were initially produced and fixed in some means of storage and transmission, the economics of production and distribution of these physical goods took over. Making the initial utterances and the physical goods that embodied them required high capital investment up front. Making many copies was not much more expensive than making few copies, and very much cheaper on a per-copy basis. These industries therefore organized themselves to invest large sums in making a small number of high production-value cultural "artifacts," which were then either replicated and stamped onto many low-cost copies of each artifact, or broadcast or distributed through high-cost systems for low marginal cost ephemeral consumption on screens and with receivers. This required an effort to manage demand for those ,{[pg 32]}, products that were in fact recorded and replicated or distributed, so as to make sure that the producers could sell many units of a small number of cultural utterances at a low per-unit cost, rather than few units each of many cultural utterances at higher per-unit costs. Because of its focus around capital-intensive production and distribution techniques, this first stage might best be thought of as the "industrial information economy." +={information, defined} + +Radical decentralization of intelligence in our communications network and the centrality of information, knowledge, culture, and ideas to advanced economic activity are leading to a new stage of the information economy-- the networked information economy. In this new stage, we can harness many more of the diverse paths and mechanisms for cultural transmission that were muted by the economies of scale that led to the rise of the concentrated, controlled form of mass media, whether commercial or state-run. The most important aspect of the networked information economy is the possibility it opens for reversing the control focus of the industrial information economy. In particular, it holds out the possibility of reversing two trends in cultural production central to the project of control: concentration and commercialization. + +Two fundamental facts have changed in the economic ecology in which the industrial information enterprises have arisen. First, the basic output that has become dominant in the most advanced economies is human meaning and communication. Second, the basic physical capital necessary to express and communicate human meaning is the connected personal computer. The core functionalities of processing, storage, and communications are widely owned throughout the population of users. Together, these changes destabilize the industrial stage of the information economy. Both the capacity to make meaning--to encode and decode humanly meaningful statements-- and the capacity to communicate one's meaning around the world, are held by, or readily available to, at least many hundreds of millions of users around the globe. Any person who has information can connect with any other person who wants it, and anyone who wants to make it mean something in some context, can do so. The high capital costs that were a prerequisite to gathering, working, and communicating information, knowledge, and culture, have now been widely distributed in the society. The entry barrier they posed no longer offers a condensation point for the large organizations that once dominated the information environment. Instead, emerging models of information and cultural production, radically decentralized and based on ,{[pg 33]}, emergent patterns of cooperation and sharing, but also of simple coordinate coexistence, are beginning to take on an ever-larger role in how we produce meaning--information, knowledge, and culture--in the networked information economy. +={physical capital for production;peer production;capital for production;constraints of information production, monetary;industrial age:destabilization of;information production capital;monetary constraints on information production;production capital} + +A Google response to a query, which returns dozens or more sites with answers to an information question you may have, is an example of coordinate coexistence producing information. As Jessica Litman demonstrated in Sharing and Stealing, hundreds of independent producers of information, acting for reasons ranging from hobby and fun to work and sales, produce information, independently and at widely varying costs, related to what you were looking for. They all coexist without knowing of each other, most of them without thinking or planning on serving you in particular, or even a class of user like you. Yet the sheer volume and diversity of interests and sources allows their distributed, unrelated efforts to be coordinated-- through the Google algorithm in this case, but also through many others-- into a picture that has meaning and provides the answer to your question. Other, more deeply engaged and cooperative enterprises are also emerging on the Internet. /{Wikipedia}/, a multilingual encyclopedia coauthored by fifty thousand volunteers, is one particularly effective example of many such enterprises. +={Litman, Jessica} + +The technical conditions of communication and information processing are enabling the emergence of new social and economic practices of information and knowledge production. Eisenstein carefully documented how print loosened the power of the church over information and knowledge production in Europe, and enabled, particularly in the Protestant North, the emergence of early modern capitalist enterprises in the form of print shops. These printers were able to use their market revenues to become independent of the church or the princes, as copyists never were, and to form the economic and social basis of a liberal, market-based freedom of thought and communication. Over the past century and a half, these early printers turned into the commercial mass media: A particular type of market-based production--concentrated, largely homogenous, and highly commercialized--that came to dominate our information environment by the end of the twentieth century. On the background of that dominant role, the possibility that a radically different form of information production will emerge--decentralized; socially, no less than commercially, driven; and as diverse as human thought itself--offers the promise of a deep change in how we see the world ,{[pg 34]}, around us, how we come to know about it and evaluate it, and how we are capable of communicating with others about what we know, believe, and plan. + +This part of the book is dedicated to explaining the technological-economic transformation that is making these practices possible. Not because economics drives all; not because technology determines the way society or communication go; but because it is the technological shock, combined with the economic sustainability of the emerging social practices, that creates the new set of social and political opportunities that are the subject of this book. By working out the economics of these practices, we can understand the economic parameters within which practical political imagination and fulfillment can operate in the digitally networked environment. I describe sustained productive enterprises that take the form of decentralized and nonmarket-based production, and explain why productivity and growth are consistent with a shift toward such modes of production. What I describe is not an exercise in pastoral utopianism. It is not a vision of a return to production in a preindustrial world. It is a practical possibility that directly results from our economic understanding of information and culture as objects of production. It flows from fairly standard economic analysis applied to a very nonstandard economic reality: one in which all the means of producing and exchanging information and culture are placed in the hands of hundreds of millions, and eventually billions, of people around the world, available for them to work with not only when they are functioning in the market to keep body and soul together, but also, and with equal efficacy, when they are functioning in society and alone, trying to give meaning to their lives as individuals and as social beings. ,{[pg 35]}, + +1~2 Chapter 2 - Some Basic Economics of Information Production and Innovation +={economics of information production and innovation+40;information production economics+40;innovation economics+40} + +There are no noncommercial automobile manufacturers. There are no volunteer steel foundries. You would never choose to have your primary source of bread depend on voluntary contributions from others. Nevertheless, scientists working at noncommercial research institutes funded by nonprofit educational institutions and government grants produce most of our basic science. Widespread cooperative networks of volunteers write the software and standards that run most of the Internet and enable what we do with it. Many people turn to National Public Radio or the BBC as a reliable source of news. What is it about information that explains this difference? Why do we rely almost exclusively on markets and commercial firms to produce cars, steel, and wheat, but much less so for the most critical information our advanced societies depend on? Is this a historical contingency, or is there something about information as an object of production that makes nonmarket production attractive? + +The technical economic answer is that certain characteristics of information and culture lead us to understand them as "public ,{[pg 36]}, goods," rather than as "pure private goods" or standard "economic goods." When economists speak of information, they usually say that it is "nonrival." We consider a good to be nonrival when its consumption by one person does not make it any less available for consumption by another. Once such a good is produced, no more social resources need be invested in creating more of it to satisfy the next consumer. Apples are rival. If I eat this apple, you cannot eat it. If you nonetheless want to eat an apple, more resources (trees, labor) need to be diverted from, say, building chairs, to growing apples, to satisfy you. The social cost of your consuming the second apple is the cost of not using the resources needed to grow the second apple (the wood from the tree) in their next best use. In other words, it is the cost to society of not having the additional chairs that could have been made from the tree. Information is nonrival. Once a scientist has established a fact, or once Tolstoy has written War and Peace, neither the scientist nor Tolstoy need spend a single second on producing additional War and Peace manuscripts or studies for the one-hundredth, one-thousandth, or one-millionth user of what they wrote. The physical paper for the book or journal costs something, but the information itself need only be created once. Economists call such goods "public" because a market will not produce them if priced at their marginal cost--zero. In order to provide Tolstoy or the scientist with income, we regulate publishing: We pass laws that enable their publishers to prevent competitors from entering the market. Because no competitors are permitted into the market for copies of War and Peace, the publishers can price the contents of the book or journal at above their actual marginal cost of zero. They can then turn some of that excess revenue over to Tolstoy. Even if these laws are therefore necessary to create the incentives for publication, the market that develops based on them will, from the technical economic perspective, systematically be inefficient. As Kenneth Arrow put it in 1962, "precisely to the extent that [property] is effective, there is underutilization of the information."~{ The full statement was: "[A]ny information obtained, say a new method of production, should, from the welfare point of view, be available free of charge (apart from the costs of transmitting information). This insures optimal utilization of the information but of course provides no incentive for investment in research. In a free enterprise economy, inventive activity is supported by using the invention to create property rights; precisely to the extent that it is successful, there is an underutilization of information." Kenneth Arrow, "Economic Welfare and the Allocation of Resources for Invention," in Rate and Direction of Inventive Activity: Economic and Social Factors, ed. Richard R. Nelson (Princeton, NJ: Princeton University Press, 1962), 616-617. }~ Because welfare economics defines a market as producing a good efficiently only when it is pricing the good at its marginal cost, a good like information (and culture and knowledge are, for purposes of economics, forms of information), which can never be sold both at a positive (greater than zero) price and at its marginal cost, is fundamentally a candidate for substantial nonmarket production. +={Arrow, Kenneth;efficiency of information regulation+8;inefficiency of information regulation+8;proprietary rights, inefficiency of+8;regulating information, efficiency of+8;information production:nonrivalry+4;information as nonrival+4;nonrival goods+4;production of information:nonrivalry+4;public goods vs. nonrival goods+4} + +This widely held explanation of the economics of information production has led to an understanding that markets based on patents or copyrights involve a trade-off between static and dynamic efficiency. That is, looking ,{[pg 37]}, at the state of the world on any given day, it is inefficient that people and firms sell the information they possess. From the perspective of a society's overall welfare, the most efficient thing would be for those who possess information to give it away for free--or rather, for the cost of communicating it and no more. On any given day, enforcing copyright law leads to inefficient underutilization of copyrighted information. However, looking at the problem of information production over time, the standard defense of exclusive rights like copyright expects firms and people not to produce if they know that their products will be available for anyone to take for free. In order to harness the efforts of individuals and firms that want to make money, we are willing to trade off some static inefficiency to achieve dynamic efficiency. That is, we are willing to have some inefficient lack of access to information every day, in exchange for getting more people involved in information production over time. Authors and inventors or, more commonly, companies that contract with musicians and filmmakers, scientists, and engineers, will invest in research and create cultural goods because they expect to sell their information products. Over time, this incentive effect will give us more innovation and creativity, which will outweigh the inefficiency at any given moment caused by selling the information at above its marginal cost. This defense of exclusive rights is limited by the extent to which it correctly describes the motivations of information producers and the business models open to them to appropriate the benefits of their investments. If some information producers do not need to capture the economic benefits of their particular information outputs, or if some businesses can capture the economic value of their information production by means other than exclusive control over their products, then the justification for regulating access by granting copyrights or patents is weakened. As I will discuss in detail, both of these limits on the standard defense are in fact the case. + +Nonrivalry, moreover, is not the only quirky characteristic of information production as an economic phenomenon. The other crucial quirkiness is that information is both input and output of its own production process. In order to write today's academic or news article, I need access to yesterday's articles and reports. In order to write today's novel, movie, or song, I need to use and rework existing cultural forms, such as story lines and twists. This characteristic is known to economists as the "on the shoulders of giants" effect, recalling a statement attributed to Isaac Newton: "If I have seen farther it is because I stand on the shoulders of giants."~{ Suzanne Scotchmer, "Standing on the Shoulders of Giants: Cumulative Research and the Patent Law," Journal of Economic Perspectives 5 (1991): 29-41. }~ This second quirkiness ,{[pg 38]}, of information as a production good makes property-like exclusive rights less appealing as the dominant institutional arrangement for information and cultural production than it would have been had the sole quirky characteristic of information been its nonrivalry. The reason is that if any new information good or innovation builds on existing information, then strengthening intellectual property rights increases the prices that those who invest in producing information today must pay to those who did so yesterday, in addition to increasing the rewards an information producer can get tomorrow. Given the nonrivalry, those payments made today for yesterday's information are all inefficiently too high, from today's perspective. They are all above the marginal cost--zero. Today's users of information are not only today's readers and consumers. They are also today's producers and tomorrow's innovators. Their net benefit from a strengthened patent or copyright regime, given not only increased potential revenues but also the increased costs, may be negative. If we pass a law that regulates information production too strictly, allowing its beneficiaries to impose prices that are too high on today's innovators, then we will have not only too little consumption of information today, but also too little production of new information for tomorrow. +={building on existing information+2;existing information, building on+2;information production inputs:existing information+2;inputs to production:existing information+2;on the shoulders of giants+2;production inputs:existing information+2;reuse of information+2;Shirky, Clay:"shoulders of giants"+2;Newton, Isaac} + +Perhaps the most amazing document of the consensus among economists today that, because of the combination of nonrivalry and the "on the shoulders of giants" effect, excessive expansion of "intellectual property" protection is economically detrimental, was the economists' brief filed in the Supreme Court case of /{Eldred v. Ashcroft}/.~{ Eldred v. Ashcroft, 537 U.S. 186 (2003). }~ The case challenged a law that extended the term of copyright protection from lasting for the life of the author plus fifty years, to life of the author plus seventy years, or from seventy-five years to ninety-five years for copyrights owned by corporations. If information were like land or iron, the ideal length of property rights would be infinite from the economists' perspective. In this case, however, where the "property right" was copyright, more than two dozen leading economists volunteered to sign a brief opposing the law, counting among their number five Nobel laureates, including that well-known market skeptic, Milton Friedman. +={Friedman, Milton} + +The efficiency of regulating information, knowledge, and cultural production through strong copyright and patent is not only theoretically ambiguous, it also lacks empirical basis. The empirical work trying to assess the impact of intellectual property on innovation has focused to date on patents. The evidence provides little basis to support stronger and increasing exclusive ,{[pg 39]}, rights of the type we saw in the last two and a half decades of the twentieth century. Practically no studies show a clear-cut benefit to stronger or longer patents.~{ Adam Jaffe, "The U.S. Patent System in Transition: Policy Innovation and the Innovation Process," Research Policy 29 (2000): 531. }~ In perhaps one of the most startling papers on the economics of innovation published in the past few years, Josh Lerner looked at changes in intellectual property law in sixty countries over a period of 150 years. He studied close to three hundred policy changes, and found that, both in developing countries and in economically advanced countries that already have patent law, patenting both at home and abroad by domestic firms of the country that made the policy change, a proxy for their investment in research and development, decreases slightly when patent law is strengthened!~{ Josh Lerner, "Patent Protection and Innovation Over 150 Years" (working paper no. 8977, National Bureau of Economic Research, Cambridge, MA, 2002). }~ The implication is that when a country--either one that already has a significant patent system, or a developing nation--increases its patent protection, it slightly decreases the level of investment in innovation by local firms. Going on intuitions alone, without understanding the background theory, this seems implausible--why would inventors or companies innovate less when they get more protection? Once you understand the interaction of nonrivalry and the "on the shoulders of giants" effect, the findings are entirely consistent with theory. Increasing patent protection, both in developing nations that are net importers of existing technology and science, and in developed nations that already have a degree of patent protection, and therefore some nontrivial protection for inventors, increases the costs that current innovators have to pay on existing knowledge more than it increases their ability to appropriate the value of their own contributions. When one cuts through the rent-seeking politics of intellectual property lobbies like the pharmaceutical companies or Hollywood and the recording industry; when one overcomes the honestly erroneous, but nonetheless conscience-soothing beliefs of lawyers who defend the copyright and patent-dependent industries and the judges they later become, the reality of both theory and empirics in the economics of intellectual property is that both in theory and as far as empirical evidence shows, there is remarkably little support in economics for regulating information, knowledge, and cultural production through the tools of intellectual property law. +={Lerner, Josh;information production, market-based:without property protections+4;market-based information producers:without property protections+4;nonexclusion-market production strategies+4;nonmarket information producers+4} + +Where does innovation and information production come from, then, if it does not come as much from intellectual-property-based market actors, as many generally believe? The answer is that it comes mostly from a mixture of (1) nonmarket sources--both state and nonstate--and (2) market actors whose business models do not depend on the regulatory framework of intellectual property. The former type of producer is the expected answer, ,{[pg 40]}, within mainstream economics, for a public goods problem like information production. The National Institutes of Health, the National Science Foundation, and the Defense Department are major sources of funding for research in the United States, as are government agencies in Europe, at the national and European level, Japan, and other major industrialized nations. The latter type--that is, the presence and importance of market-based producers whose business models do not require and do not depend on intellectual property protection--is not theoretically predicted by that model, but is entirely obvious once you begin to think about it. + +Consider a daily newspaper. Normally, we think of newspapers as dependent on copyrights. In fact, however, that would be a mistake. No daily newspaper would survive if it depended for its business on waiting until a competitor came out with an edition, then copied the stories, and reproduced them in a competing edition. Daily newspapers earn their revenue from a combination of low-priced newsstand sales or subscriptions together with advertising revenues. Neither of those is copyright dependent once we understand that consumers will not wait half a day until the competitor's paper comes out to save a nickel or a quarter on the price of the newspaper. If all copyright on newspapers were abolished, the revenues of newspapers would be little affected.~{ At most, a "hot news" exception on the model of /{International News Service v. Associated Press}/, 248 U.S. 215 (1918), might be required. Even that, however, would only be applicable to online editions that are for pay. In paper, habits of reading, accreditation of the original paper, and first-to-market advantages of even a few hours would be enough. Online, where the first-to-market advantage could shrink to seconds, "hot news" protection may be worthwhile. However, almost all papers are available for free and rely solely on advertising. The benefits of reading a copied version are, at that point, practically insignificant to the reader. }~ Take, for example, the 2003 annual reports of a few of the leading newspaper companies in the United States. The New York Times Company receives a little more than $3 billion a year from advertising and circulation revenues, and a little more than $200 million a year in revenues from all other sources. Even if the entire amount of "other sources" were from syndication of stories and photos--which likely overstates the role of these copyright-dependent sources--it would account for little more than 6 percent of total revenues. The net operating revenues for the Gannett Company were more than $5.6 billion in newspaper advertising and circulation revenue, relative to about $380 million in all other revenues. As with the New York Times, at most a little more than 6 percent of revenues could be attributed to copyright-dependent activities. For Knight Ridder, the 2003 numbers were $2.8 billion and $100 million, respectively, or a maximum of about 3.5 percent from copyrights. Given these numbers, it is safe to say that daily newspapers are not a copyright-dependent industry, although they are clearly a market-based information production industry. +={daily newspapers;newspapers} + +As it turns out, repeated survey studies since 1981 have shown that in all industrial sectors except for very few--most notably pharmaceuticals--firm managers do not see patents as the most important way they capture the ,{[pg 41]}, benefits of their research and developments.~{ Wesley Cohen, R. Nelson, and J. Walsh, "Protecting Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not)" (working paper no. 7552, National Bureau Economic Research, Cambridge, MA, 2000); Richard Levin et al., "Appropriating the Returns from Industrial Research and Development"Brookings Papers on Economic Activity 3 (1987): 783; Mansfield et al., "Imitation Costs and Patents: An Empirical Study," The Economic Journal 91 (1981): 907. }~ They rank the advantages that strong research and development gives them in lowering the cost or improving the quality of manufacture, being the first in the market, or developing strong marketing relationships as more important than patents. The term "intellectual property" has high cultural visibility today. Hollywood, the recording industry, and pharmaceuticals occupy center stage on the national and international policy agenda for information policy. However, in the overall mix of our information, knowledge, and cultural production system, the total weight of these exclusivity-based market actors is surprisingly small relative to the combination of nonmarket sectors, government and nonprofit, and market-based actors whose business models do not depend on proprietary exclusion from their information outputs. + +The upshot of the mainstream economic analysis of information production today is that the widely held intuition that markets are more or less the best way to produce goods, that property rights and contracts are efficient ways of organizing production decisions, and that subsidies distort production decisions, is only very ambiguously applicable to information. While exclusive rights-based production can partially solve the problem of how information will be produced in our society, a comprehensive regulatory system that tries to mimic property in this area--such as both the United States and the European Union have tried to implement internally and through international agreements--simply cannot work perfectly, even in an ideal market posited by the most abstract economics models. Instead, we find the majority of businesses in most sectors reporting that they do not rely on intellectual property as a primary mechanism for appropriating the benefits of their research and development investments. In addition, we find mainstream economists believing that there is a substantial role for government funding; that nonprofit research can be more efficient than for-profit research; and, otherwise, that nonproprietary production can play an important role in our information production system. + +2~ THE DIVERSITY OF STRATEGIES IN OUR CURRENT INFORMATION PRODUCTION SYSTEM +={production of information:strategies of+11;proprietary rights:strategies for information production+11;strategies for information production+11;business strategies for information production+11;economics of information production and innovation:current production strategies+11;information production:strategies of;information production economics:current production strategies+11;innovation economics:current production strategies} + +The actual universe of information production in the economy then, is not as dependent on property rights and markets in information goods as the last quarter century's increasing obsession with "intellectual property" might ,{[pg 42]}, suggest. Instead, what we see both from empirical work and theoretical work is that individuals and firms in the economy produce information using a wide range of strategies. Some of these strategies indeed rely on exclusive rights like patents or copyrights, and aim at selling information as a good into an information market. Many, however, do not. In order to provide some texture to what these models look like, we can outline a series of ideal-type "business" strategies for producing information. The point here is not to provide an exhaustive map of the empirical business literature. It is, instead, to offer a simple analytic framework within which to understand the mix of strategies available for firms and individuals to appropriate the benefits of their investments--of time, money, or both, in activities that result in the production of information, knowledge, and culture. The differentiating parameters are simple: cost minimization and benefit maximization. Any of these strategies could use inputs that are already owned--such as existing lyrics for a song or a patented invention to improve on--by buying a license from the owner of the exclusive rights for the existing information. Cost minimization here refers purely to ideal-type strategies for obtaining as many of the information inputs as possible at their marginal cost of zero, instead of buying licenses to inputs at a positive market price. It can be pursued by using materials from the public domain, by using materials the producer itself owns, or by sharing/bartering for information inputs owned by others in exchange for one's own information inputs. Benefits can be obtained either in reliance on asserting one's exclusive rights, or by following a non-exclusive strategy, using some other mechanism that improves the position of the information producer because they invested in producing the information. Nonexclusive strategies for benefit maximization can be pursued both by market actors and by nonmarket actors. Table 2.1 maps nine ideal-type strategies characterized by these components. +={benefit maximization;proprietary rights:models of+5;capital for production:cost minimization and benefit maximization;constraints of information production, monetary:cost minimization and benefits maximization;cost:minimizing;information production capital:cost minimization and benefit maximization;monetary constraints on information production:cost minimization and benefit maximization;money:cost minimization and benefit maximization;physical capital for production:cost minimization and benefit maximization;production capital:cost minimization and benefit maximization} + +The ideal-type strategy that underlies patents and copyrights can be thought of as the "Romantic Maximizer." It conceives of the information producer as a single author or inventor laboring creatively--hence romantic--but in expectation of royalties, rather than immortality, beauty, or truth. An individual or small start-up firm that sells software it developed to a larger firm, or an author selling rights to a book or a film typify this model. The second ideal type that arises within exclusive-rights based industries, "Mickey," is a larger firm that already owns an inventory of exclusive rights, some through in-house development, some by buying from Romantic Maximizers. ,{[pg 43]}, +={Mickey model+3;Romantic Maximizer model+2} + +<:pb> + +!_ Table 2.1: Ideal-Type Information Production Strategies +={demand-side effects of information production;Joe Einstein model+1;learning networks+1;limited sharing networks+1;Los Alamos model+1;nonmarket information producers:strategies for information production+1;RCA strategy+1;Scholarly Lawyers model+1;sharing:limited sharing networks} + +table{~h c4; 25; 25; 25; 25; + +Cost Minimization/ Benefit Acquisition +Public Domain +Intrafirm +Barter/Sharing + +Rights based exclusion (make money by exercising exclusive rights - licensing or blocking competition) +Romantic Maximizers (authors, composers; sell to publishers; sometimes sell to Mickeys) +Mikey (Disney reuses inventory for derivative works; buy outputs of Romantic Maximizers) +RCA (small number of companies hold blocking patents; they create patent pools to build valuable goods) + +Nonexclusion - Market (make money from information production but not by exercising the exclusive rights) +Scholarly Lawyers (write articles to get clients; other examples include bands that give music out for free as advertisements for touring and charge money for performance; software developers who develop software and make money from customizing it to a particular client, on-site management, advice and training, not from licensing) +Know-How (firms that have cheaper or better production processes because of their research, lower their costs or improve the quality of other goods or services; lawyer offices that build on existing forms) +Learning Networks (share information with similar organizations - make money from early access to information. For example, newspapers join together to create a wire service; firms where engineers and scientists from different firms attend professional societies to diffuse knowledge) + +Nonexclusion - Nonmarket +Joe Einstein (give away information for free in return for status, benefits to reputation, value for the innovation to themselves; wide range of motivations. Includes members of amateur choirs who perform for free, academics who write articles for fame, people who write opeds, contribute to mailing lists; many free software developers and free software generally for most uses) +Los Alamos (share in-house information, rely on in-house inputs to produce valuable public goods used to secure additional government funding and status) +Limited sharing networks (release paper to small number of colleagues to get comments so you can improve it before publication. Make use of time delay to gain relative advantage later on using Joe Einstein strategy. Share one's information on formal condition of reciprocity: like "copyleft" conditions on derivative works for distribution) + +}table + +% ,{[pg 44]}, + +- A defining cost-reduction mechanism for Mickey is that it applies creative people to work on its own inventory, for which it need not pay above marginal cost prices in the market. This strategy is the most advantageous in an environment of very strong exclusive rights protection for a number of reasons. First, the ability to extract higher rents from the existing inventory of information goods is greatest for firms that (a) have an inventory and (b) rely on asserting exclusive rights as their mode of extracting value. Second, the increased costs of production associated with strong exclusive rights are cushioned by the ability of such firms to rework their existing inventory, rather than trying to work with materials from an evershrinking public domain or paying for every source of inspiration and element of a new composition. The coarsest version of this strategy might be found if Disney were to produce a "winter sports" thirty-minute television program by tying together scenes from existing cartoons, say, one in which Goofy plays hockey followed by a snippet of Donald Duck ice skating, and so on. More subtle, and representative of the type of reuse relevant to the analysis here, would be the case where Disney buys the rights to Winniethe-Pooh, and, after producing an animated version of stories from the original books, then continues to work with the same characters and relationships to create a new film, say, Winnie-the-Pooh--Frankenpooh (or Beauty and the Beast--Enchanted Christmas; or The Little Mermaid--Stormy the Wild Seahorse). The third exclusive-rights-based strategy, which I call "RCA," is barter among the owners of inventories. Patent pools, cross-licensing, and market-sharing agreements among the radio patents holders in 1920-1921, which I describe in chapter 6, are a perfect example. RCA, GE, AT&T, and Westinghouse held blocking patents that prevented each other and anyone else from manufacturing the best radios possible given technology at that time. The four companies entered an agreement to combine their patents and divide the radio equipment and services markets, which they used throughout the 1920s to exclude competitors and to capture precisely the postinnovation monopoly rents sought to be created by patents. +={RCA strategy} + +Exclusive-rights-based business models, however, represent only a fraction of our information production system. There are both market-based and nonmarket models to sustain and organize information production. Together, these account for a substantial portion of our information output. Indeed, industry surveys concerned with patents have shown that the vast majority of industrial R&D is pursued with strategies that do not rely primarily on patents. This does not mean that most or any of the firms that ,{[pg 45]}, pursue these strategies possess or seek no exclusive rights in their information products. It simply means that their production strategy does not depend on asserting these rights through exclusion. One such cluster of strategies, which I call "Scholarly Lawyers," relies on demand-side effects of access to the information the producer distributes. It relies on the fact that sometimes using an information good that one has produced makes its users seek out a relationship with the author. The author then charges for the relationship, not for the information. Doctors or lawyers who publish in trade journals, become known, and get business as a result are an instance of this strategy. An enormously creative industry, much of which operates on this model, is software. About two-thirds of industry revenues in software development come from activities that the Economic Census describes as: (1) writing, modifying, testing, and supporting software to meet the needs of a particular customer; (2) planning and designing computer systems that integrate computer hardware, software, and communication technologies; (3) on-site management and operation of clients' computer systems and/or data processing facilities; and (4) other professional and technical computer-related advice and services, systems consultants, and computer training. "Software publishing," by contrast, the business model that relies on sales based on copyright, accounts for a little more than one-third of the industry's revenues.~{ In the 2002 Economic Census, compare NAICS categories 5415 (computer systems and related services) to NAICS 5112 (software publishing). Between the 1997 Economic Census and the 2002 census, this ratio remained stable, at about 36 percent in 1997 and 37 percent in 2002. See 2002 Economic Census, "Industry Series, Information, Software Publishers, and Computer Systems, Design and Related Services" (Washington, DC: U.S. Census Bureau, 2004). }~ Interestingly, this is the model of appropriation that more than a decade ago, Esther Dyson and John Perry Barlow heralded as the future of music and musicians. They argued in the early 1990s for more or less free access to copies of recordings distributed online, which would lead to greater attendance at live gigs. Revenue from performances, rather than recording, would pay artists. +={demand-side effects of information production;Scholarly Lawyers model;Barlow, John Perry;Dyson, Esther;nonexclusion-market production strategies+5} + +The most common models of industrial R&D outside of pharmaceuticals, however, depend on supply-side effects of information production. One central reason to pursue research is its effects on firm-specific advantages, like production know-how, which permit the firm to produce more efficiently than competitors and sell better or cheaper competing products. Daily newspapers collectively fund news agencies, and individually fund reporters, because their ability to find information and report it is a necessary input into their product--timely news. As I have already suggested, they do not need copyright to protect their revenues. Those are protected by the short half-life of dailies. The investments come in order to be able to play in the market for daily newspapers. Similarly, the learning curve and knowhow effects in semiconductors are such that early entry into the market for ,{[pg 46]}, a new chip will give the first mover significant advantages over competitors. Investment is then made to capture that position, and the investment is captured by the quasi-rents available from the first-mover advantage. In some cases, innovation is necessary in order to be able to produce at the state of the art. Firms participate in "Learning Networks" to gain the benefits of being at the state of the art, and sharing their respective improvements. However, they can only participate if they innovate. If they do not innovate, they lack the in-house capacity to understand the state of the art and play at it. Their investments are then recouped not from asserting their exclusive rights, but from the fact that they sell into one of a set of markets, access into which is protected by the relatively small number of firms with such absorption capacity, or the ability to function at the edge of the state of the art. Firms of this sort might barter their information for access, or simply be part of a small group of organizations with enough knowledge to exploit the information generated and informally shared by all participants in these learning networks. They obtain rents from the concentrated market structure, not from assertion of property rights.~{ Levin et al., "Appropriating the Returns," 794-796 (secrecy, lead time, and learningcurve advantages regarded as more effective than patents by most firms). See also F. M. Scherer, "Learning by Doing and International Trade in Semiconductors" (faculty research working paper series R94-13, John F. Kennedy School of Government, Harvard University, Cambridge, MA, 1994), an empirical study of semiconductor industry suggesting that for industries with steep learning curves, investment in information production is driven by advantages of being first down the learning curve rather than the expectation of legal rights of exclusion. The absorption effect is described in Wesley M. Cohen and Daniel A. Leventhal, "Innovation and Learning: The Two Faces of R&D," The Economic Journal 99 (1989): 569-596. The collaboration effect was initially described in Richard R. Nelson, "The Simple Economics of Basic Scientific Research," Journal of Political Economy 67 (June 1959): 297-306. The most extensive work over the past fifteen years, and the source of the term of learning networks, has been from Woody Powell on knowledge and learning networks. Identifying the role of markets made concentrated by the limited ability to use information, rather than through exclusive rights, was made in F. M. Scherer, "Nordhaus's Theory of Optimal Patent Life: A Geometric Reinterpretation," American Economic Review 62 (1972): 422-427.}~ +={Know-How model;information production, market-based: without property protections+4;market-based information producers: without property protections+4;supply-side effects of information production+1;learning networks} + +An excellent example of a business strategy based on nonexclusivity is IBM's. The firm has obtained the largest number of patents every year from 1993 to 2004, amassing in total more than 29,000 patents. IBM has also, however, been one of the firms most aggressively engaged in adapting its business model to the emergence of free software. Figure 2.1 shows what happened to the relative weight of patent royalties, licenses, and sales in IBM's revenues and revenues that the firm described as coming from "Linuxrelated services." Within a span of four years, the Linux-related services category moved from accounting for practically no revenues, to providing double the revenues from all patent-related sources, of the firm that has been the most patent-productive in the United States. IBM has described itself as investing more than a billion dollars in free software developers, hired programmers to help develop the Linux kernel and other free software; and donated patents to the Free Software Foundation. What this does for the firm is provide it with a better operating system for its server business-- making the servers better, faster, more reliable, and therefore more valuable to consumers. Participating in free software development has also allowed IBM to develop service relationships with its customers, building on free software to offer customer-specific solutions. In other words, IBM has combined both supply-side and demand-side strategies to adopt a nonproprietary business model that has generated more than $2 billion yearly of business ,{[pg 47]}, for the firm. Its strategy is, if not symbiotic, certainly complementary to free software. +={free software;IBM's business strategy;open-source software;software, open-source} + +{won_benkler_2_1.png "Figure 2.1: Selected IBM Revenues, 2000-2003" }http://www.jus.uio.no/sisu/ + +I began this chapter with a puzzle--advanced economies rely on nonmarket organizations for information production much more than they do in other sectors. The puzzle reflects the fact that alongside the diversity of market-oriented business models for information production there is a wide diversity of nonmarket models as well. At a broad level of abstraction, I designate this diversity of motivations and organizational forms as "Joe Einstein"--to underscore the breadth of the range of social practices and practitioners of nonmarket production. These include universities and other research institutes; government research labs that publicize their work, or government information agencies like the Census Bureau. They also include individuals, like academics; authors and artists who play to "immortality" rather than seek to maximize the revenue from their creation. Eric von Hippel has for many years documented user innovation in areas ranging from surfboard design to new mechanisms for pushing electric wiring through insulation tiles.~{ Eric von Hippel, Democratizing Innovation (Cambridge, MA: MIT Press, 2005). }~ The Oratorio Society of New York, whose chorus ,{[pg 48]}, members are all volunteers, has filled Carnegie Hall every December with a performance of Handel's Messiah since the theatre's first season in 1891. Political parties, advocacy groups, and churches are but few of the stable social organizations that fill our information environment with news and views. For symmetry purposes in table 2.1, we also see reliance on internal inventories by some nonmarket organizations, like secret government labs that do not release their information outputs, but use it to continue to obtain public funding. This is what I call "Los Alamos." Sharing in limited networks also occurs in nonmarket relationships, as when academic colleagues circulate a draft to get comments. In the nonmarket, nonproprietary domain, however, these strategies were in the past relatively smaller in scope and significance than the simple act of taking from the public domain and contributing back to it that typifies most Joe Einstein behaviors. Only since the mid-1980s have we begun to see a shift from releasing into the public domain to adoption of commons-binding licensing, like the "copyleft" strategies I describe in chapter 3. What makes these strategies distinct from Joe Einstein is that they formalize the requirement of reciprocity, at least for some set of rights shared. +={Joe Einstein model;nonmarket information producers:strategies for information production+1;von Hippel, Eric;Los Alamos model;limited sharing networks+1;sharing:limited sharing networks} + +My point is not to provide an exhaustive list of all the ways we produce information. It is simply to offer some texture to the statement that information, knowledge, and culture are produced in diverse ways in contemporary society. Doing so allows us to understand the comparatively limited role that production based purely on exclusive rights--like patents, copyrights, and similar regulatory constraints on the use and exchange of information--has played in our information production system to this day. It is not new or mysterious to suggest that nonmarket production is important to information production. It is not new or mysterious to suggest that efficiency increases whenever it is possible to produce information in a way that allows the producer--whether market actor or not--to appropriate the benefits of production without actually charging a price for use of the information itself. Such strategies are legion among both market and nonmarket actors. Recognizing this raises two distinct questions: First, how does the cluster of mechanisms that make up intellectual property law affect this mix? Second, how do we account for the mix of strategies at any given time? Why, for example, did proprietary, market-based production become so salient in music and movies in the twentieth century, and what is it about the digitally networked environment that could change this mix? ,{[pg 49]}, + +2~ THE EFFECTS OF EXCLUSIVE RIGHTS +={property ownership:effects of exclusive rights+4;proprietary rights:effects of+4;proprietary rights, inefficiency of+4;regulating information, efficiency of+4;efficiency of information regulation+4;economics of information production and innovation:exclusive rights+4;innovation economics:exclusive rights+4;inefficiency of information regulation+4;information production economics:exclusive rights+4;innovation economics:exclusive rights+4} + +Once we recognize that there are diverse strategies of appropriation for information production, we come to see a new source of inefficiency caused by strong "intellectual property"-type rights. Recall that in the mainstream analysis, exclusive rights always cause static inefficiency--that is, they allow producers to charge positive prices for products (information) that have a zero marginal cost. Exclusive rights have a more ambiguous effect dynamically. They raise the expected returns from information production, and thereby are thought to induce investment in information production and innovation. However, they also increase the costs of information inputs. If existing innovations are more likely covered by patent, then current producers will more likely have to pay for innovations or uses that in the past would have been available freely from the public domain. Whether, overall, any given regulatory change that increases the scope of exclusive rights improves or undermines new innovation therefore depends on whether, given the level of appropriability that preceded it, it increased input costs more or less than it increased the prospect of being paid for one's outputs. +={information appropriation strategies+2;appropriation strategies+2;diversity:appropriation strategies+2} + +The diversity of appropriation strategies adds one more kink to this story. Consider the following very simple hypothetical. Imagine an industry that produces "infowidgets." There are ten firms in the business. Two of them are infowidget publishers on the Romantic Maximizer model. They produce infowidgets as finished goods, and sell them based on patent. Six firms produce infowidgets on supply-side (Know-How) or demand-side (Scholarly Lawyer) effects: they make their Realwidgets or Servicewidgets more efficient or desirable to consumers, respectively. Two firms are nonprofit infowidget producers that exist on a fixed, philanthropically endowed income. Each firm produces five infowidgets, for a total market supply of fifty. Now imagine a change in law that increases exclusivity. Assume that this is a change in law that, absent diversity of appropriation, would be considered efficient. Say it increases input costs by 10 percent and appropriability by 20 percent, for a net expected gain of 10 percent. The two infowidget publishers would each see a 10 percent net gain, and let us assume that this would cause each to increase its efforts by 10 percent and produce 10 percent more infowidgets. Looking at these two firms alone, the change in law caused an increase from ten infowidgets to eleven--a gain for the policy change. Looking at the market as a whole, however, eight firms see an increase of 10 percent in costs, and no gain in appropriability. This is because none of these firms ,{[pg 50]}, actually relies on exclusive rights to appropriate its product's value. If, commensurate with our assumption for the publishers, we assume that this results in a decline in effort and productivity of 10 percent for the eight firms, we would see these firms decline from forty infowidgets to thirty-six, and total market production would decline from fifty infowidgets to forty-seven. + +Another kind of effect for the change in law may be to persuade some of the firms to shift strategies or to consolidate. Imagine, for example, that most of the inputs required by the two publishers were owned by the other infowidget publisher. If the two firms merged into one Mickey, each could use the outputs of the other at its marginal cost--zero--instead of at its exclusive-rights market price. The increase in exclusive rights would then not affect the merged firm's costs, only the costs of outside firms that would have to buy the merged firm's outputs from the market. Given this dynamic, strong exclusive rights drive concentration of inventory owners. We see this very clearly in the increasing sizes of inventory-based firms like Disney. Moreover, the increased appropriability in the exclusive-rights market will likely shift some firms at the margin of the nonproprietary business models to adopt proprietary business models. This, in turn, will increase the amount of information available only from proprietary sources. The feedback effect will further accelerate the rise in information input costs, increasing the gains from shifting to a proprietary strategy and to consolidating larger inventories with new production. + +Given diverse strategies, the primary unambiguous effect of increasing the scope and force of exclusive rights is to shape the population of business strategies. Strong exclusive rights increase the attractiveness of exclusiverights-based strategies at the expense of nonproprietary strategies, whether market-based or nonmarket based. They also increase the value and attraction of consolidation of large inventories of existing information with new production. + +2~ WHEN INFORMATION PRODUCTION MEETS THE COMPUTER NETWORK +={economics of information production and innovation:production of computer networks+7;innovation economics:production over computer networks+7;information production economics:production over computer networks+7} + +Music in the nineteenth century was largely a relational good. It was something people did in the physical presence of each other: in the folk way through hearing, repeating, and improvising; in the middle-class way of buying sheet music and playing for guests or attending public performances; or in the upper-class way of hiring musicians. Capital was widely distributed ,{[pg 51]}, among musicians in the form of instruments, or geographically dispersed in the hands of performance hall (and drawing room) owners. Market-based production depended on performance through presence. It provided opportunities for artists to live and perform locally, or to reach stardom in cultural centers, but without displacing the local performers. With the introduction of the phonograph, a new, more passive relationship to played music was made possible in reliance on the high-capital requirements of recording, copying, and distributing specific instantiations of recorded music--records. What developed was a concentrated, commercial industry, based on massive financial investments in advertising, or preference formation, aimed at getting ever-larger crowds to want those recordings that the recording executives had chosen. In other words, the music industry took on a more industrial model of production, and many of the local venues--from the living room to the local dance hall--came to be occupied by mechanical recordings rather than amateur and professional local performances. This model crowded out some, but not all, of the live-performance-based markets (for example, jazz clubs, piano bars, or weddings), and created new live-performance markets--the megastar concert tour. The music industry shifted from a reliance on Scholarly Lawyer and Joe Einstein models to reliance on Romantic Maximizer and Mickey models. As computers became more music-capable and digital networks became a ubiquitously available distribution medium, we saw the emergence of the present conflict over the regulation of cultural production--the law of copyright--between the twentieth-century, industrial model recording industry and the emerging amateur distribution systems coupled, at least according to its supporters, to a reemergence of decentralized, relation-based markets for professional performance artists. +={music industry+1} + +This stylized story of the music industry typifies the mass media more generally. Since the introduction of the mechanical press and the telegraph, followed by the phonograph, film, the high-powered radio transmitter, and through to the cable plant or satellite, the capital costs of fixing information and cultural goods in a transmission medium--a high-circulation newspaper, a record or movie, a radio or television program--have been high and increasing. The high physical and financial capital costs involved in making a widely accessible information good and distributing it to the increasingly larger communities (brought together by better transportation systems and more interlinked economic and political systems) muted the relative role of nonmarket production, and emphasized the role of those firms that could ,{[pg 52]}, muster the financial and physical capital necessary to communicate on a mass scale. Just as these large, industrial-age machine requirements increased the capital costs involved in information and cultural production, thereby triggering commercialization and concentration of much of this sector, so too ubiquitously available cheap processors have dramatically reduced the capital input costs required to fix information and cultural expressions and communicate them globally. By doing so, they have rendered feasible a radical reorganization of our information and cultural production system, away from heavy reliance on commercial, concentrated business models and toward greater reliance on nonproprietary appropriation strategies, in particular nonmarket strategies whose efficacy was dampened throughout the industrial period by the high capital costs of effective communication. + +Information and cultural production have three primary categories of inputs. The first is existing information and culture. We already know that existing information is a nonrival good--that is, its real marginal cost at any given moment is zero. The second major cost is that of the mechanical means of sensing our environment, processing it, and communicating new information goods. This is the high cost that typified the industrial model, and which has drastically declined in computer networks. The third factor is human communicative capacity--the creativity, experience, and cultural awareness necessary to take from the universe of existing information and cultural resources and turn them into new insights, symbols, or representations meaningful to others with whom we converse. Given the zero cost of existing information and the declining cost of communication and processing, human capacity becomes the primary scarce resource in the networked information economy. +={building on existing information;existing information, building on;reuse of information;capabilities of individuals:human capacity as resource+4;capacity:human communication+4;communication:capacity of+4;cost:capital for production creative capacity+4;human communicative capacity+4;individual capabilities and action:human capacity as resource;information production inputs:existing information;inputs to production:existing information;production inputs:existing information} + +Human communicative capacity, however, is an input with radically different characteristics than those of, say, printing presses or satellites. It is held by each individual, and cannot be "transferred" from one person to another or aggregated like so many machines. It is something each of us innately has, though in divergent quanta and qualities. Individual human capacities, rather than the capacity to aggregate financial capital, become the economic core of our information and cultural production. Some of that human capacity is currently, and will continue to be, traded through markets in creative labor. However, its liberation from the constraints of physical capital leaves creative human beings much freer to engage in a wide range of information and cultural production practices than those they could afford to participate in when, in addition to creativity, experience, cultural awareness ,{[pg 53]}, and time, one needed a few million dollars to engage in information production. From our friendships to our communities we live life and exchange ideas, insights, and expressions in many more diverse relations than those mediated by the market. In the physical economy, these relationships were largely relegated to spaces outside of our economic production system. The promise of the networked information economy is to bring this rich diversity of social life smack into the middle of our economy and our productive lives. + +Let's do a little experiment. Imagine that you were performing a Web search with me. Imagine that we were using Google as our search engine, and that what we wanted to do was answer the questions of an inquisitive six-year-old about Viking ships. What would we get, sitting in front of our computers and plugging in a search request for "Viking Ships"? The first site is Canadian, and includes a collection of resources, essays, and worksheets. An enterprising elementary school teacher at the Gander Academy in Newfoundland seems to have put these together. He has essays on different questions, and links to sites hosted by a wide range of individuals and organizations, such as a Swedish museum, individual sites hosted on geocities, and even to a specific picture of a replica Viking ship, hosted on a commercial site dedicated to selling nautical replicas. In other words, it is a Joe Einstein site that points to other sites, which in turn use either Joe Einstein or Scholarly Lawyer strategies. This multiplicity of sources of information that show up on the very first site is then replicated as one continues to explore the remaining links. The second link is to a Norwegian site called "the Viking Network," a Web ring dedicated to preparing and hosting short essays on Vikings. It includes brief essays, maps, and external links, such as one to an article in Scientific American. "To become a member you must produce an Information Sheet on the Vikings in your local area and send it in electronic format to Viking Network. Your info-sheet will then be included in the Viking Network web." The third site is maintained by a Danish commercial photographer, and hosted in Copenhagen, in a portion dedicated to photographs of archeological finds and replicas of Danish Viking ships. A retired professor from the University of Pittsburgh runs the fourth. The fifth is somewhere between a hobby and a showcase for the services of an individual, independent Web publisher offering publishing-related services. The sixth and seventh are museums, in Norway and Virginia, respectively. The eighth is the Web site of a hobbyists' group dedicated to building Viking Ship replicas. The ninth includes classroom materials and ,{[pg 54]}, teaching guides made freely available on the Internet by PBS, the American Public Broadcasting Service. Certainly, if you perform this search now, as you read this book, the rankings will change from those I saw when I ran it; but I venture that the mix, the range and diversity of producers, and the relative salience of nonmarket producers will not change significantly. + +The difference that the digitally networked environment makes is its capacity to increase the efficacy, and therefore the importance, of many more, and more diverse, nonmarket producers falling within the general category of Joe Einstein. It makes nonmarket strategies--from individual hobbyists to formal, well-funded nonprofits--vastly more effective than they could be in the mass-media environment. The economics of this phenomenon are neither mysterious nor complex. Imagine the grade-school teacher who wishes to put together ten to twenty pages of materials on Viking ships for schoolchildren. Pre-Internet, he would need to go to one or more libraries and museums, find books with pictures, maps, and text, or take his own photographs (assuming he was permitted by the museums) and write his own texts, combining this research. He would then need to select portions, clear the copyrights to reprint them, find a printing house that would set his text and pictures in a press, pay to print a number of copies, and then distribute them to all children who wanted them. Clearly, research today is simpler and cheaper. Cutting and pasting pictures and texts that are digital is cheaper. Depending on where the teacher is located, it is possible that these initial steps would have been insurmountable, particularly for a teacher in a poorly endowed community without easy access to books on the subject, where research would have required substantial travel. Even once these barriers were surmounted, in the precomputer, pre-Internet days, turning out materials that looked and felt like a high quality product, with highresolution pictures and maps, and legible print required access to capitalintensive facilities. The cost of creating even one copy of such a product would likely dissuade the teacher from producing the booklet. At most, he might have produced a mimeographed bibliography, and perhaps some text reproduced on a photocopier. Now, place the teacher with a computer and a high-speed Internet connection, at home or in the school library. The cost of production and distribution of the products of his effort are trivial. A Web site can be maintained for a few dollars a month. The computer itself is widely accessible throughout the developed world. It becomes trivial for a teacher to produce the "booklet"--with more information, available to anyone in the world, anywhere, at any time, as long as he is willing to spend ,{[pg 55]}, some of his free time putting together the booklet rather than watching television or reading a book. +={nonmarket strategies, effectiveness of+2;technology:effectiveness of nonmarket strategies+2} + +When you multiply these very simple stylized facts by the roughly billion people who live in societies sufficiently wealthy to allow cheap ubiquitous Internet access, the breadth and depth of the transformation we are undergoing begins to become clear. A billion people in advanced economies may have between two billion and six billion spare hours among them, every day. In order to harness these billions of hours, it would take the whole workforce of almost 340,000 workers employed by the entire motion picture and recording industries in the United States put together, assuming each worker worked forty-hour weeks without taking a single vacation, for between three and eight and a half years! Beyond the sheer potential quantitative capacity, however one wishes to discount it to account for different levels of talent, knowledge, and motivation, a billion volunteers have qualities that make them more likely to produce what others want to read, see, listen to, or experience. They have diverse interests--as diverse as human culture itself. Some care about Viking ships, others about the integrity of voting machines. Some care about obscure music bands, others share a passion for baking. As Eben Moglen put it, "if you wrap the Internet around every person on the planet and spin the planet, software flows in the network. It's an emergent property of connected human minds that they create things for one another's pleasure and to conquer their uneasy sense of being too alone."~{ Eben Moglen, "Anarchism Triumphant: Free Software and the Death of Copyright," First Monday (1999), http://www.firstmonday.dk/issues/issue4_8/moglen/. }~ It is this combination of a will to create and to communicate with others, and a shared cultural experience that makes it likely that each of us wants to talk about something that we believe others will also want to talk about, that makes the billion potential participants in today's online conversation, and the six billion in tomorrow's conversation, affirmatively better than the commercial industrial model. When the economics of industrial production require high up-front costs and low marginal costs, the producers must focus on creating a few superstars and making sure that everyone tunes in to listen or watch them. This requires that they focus on averaging out what consumers are most likely to buy. This works reasonably well as long as there is no better substitute. As long as it is expensive to produce music or the evening news, there are indeed few competitors for top billing, and the star system can function. Once every person on the planet, or even only every person living in a wealthy economy and 10-20 percent of those living in poorer countries, can easily talk to their friends and compatriots, the competition becomes tougher. It does not mean that there is no continued role ,{[pg 56]}, for the mass-produced and mass-marketed cultural products--be they Britney Spears or the broadcast news. It does, however, mean that many more "niche markets"--if markets, rather than conversations, are what they should be called--begin to play an ever-increasing role in the total mix of our cultural production system. The economics of production in a digital environment should lead us to expect an increase in the relative salience of nonmarket production models in the overall mix of our information production system, and it is efficient for this to happen--more information will be produced, and much of it will be available for its users at its marginal cost. +={diversity:human communication+1;Moglen, Eben;niche markets} + +The known quirky characteristics of information and knowledge as production goods have always given nonmarket production a much greater role in this production system than was common in capitalist economies for tangible goods. The dramatic decline in the cost of the material means of producing and exchanging information, knowledge, and culture has substantially decreased the costs of information expression and exchange, and thereby increased the relative efficacy of nonmarket production. When these facts are layered over the fact that information, knowledge, and culture have become the central high-value-added economic activities of the most advanced economies, we find ourselves in a new and unfamiliar social and economic condition. Social behavior that traditionally was relegated to the peripheries of the economy has become central to the most advanced economies. Nonmarket behavior is becoming central to producing our information and cultural environment. Sources of knowledge and cultural edification, through which we come to know and comprehend the world, to form our opinions about it, and to express ourselves in communication with others about what we see and believe have shifted from heavy reliance on commercial, concentrated media, to being produced on a much more widely distributed model, by many actors who are not driven by the imperatives of advertising or the sale of entertainment goods. + +2~ STRONG EXCLUSIVE RIGHTS IN THE DIGITAL ENVIRONMENT +={economics of information production and innovation:exclusive rights+3;information production economics:exclusive rights+3;innovation economics:exclusive rights+3;proprietary rights+3} + +We now have the basic elements of a clash between incumbent institutions and emerging social practice. Technologies of information and cultural production initially led to the increasing salience of commercial, industrialmodel production in these areas. Over the course of the twentieth century, ,{[pg 57]}, in some of the most culturally visible industries like movies and music, copyright law coevolved with the industrial model. By the end of the twentieth century, copyright was longer, broader, and vastly more encompassing than it had been at the beginning of that century. Other exclusive rights in information, culture, and the fruits of innovation expanded following a similar logic. Strong, broad, exclusive rights like these have predictable effects. They preferentially improve the returns to business models that rely on exclusive rights, like copyrights and patents, at the expense of information and cultural production outside the market or in market relationships that do not depend on exclusive appropriation. They make it more lucrative to consolidate inventories of existing materials. The businesses that developed around the material capital required for production fed back into the political system, which responded by serially optimizing the institutional ecology to fit the needs of the industrial information economy firms at the expense of other information producers. + +The networked information economy has upset the apple cart on the technical, material cost side of information production and exchange. The institutional ecology, the political framework (the lobbyists, the habits of legislatures), and the legal culture (the beliefs of judges, the practices of lawyers) have not changed. They are as they developed over the course of the twentieth century--centered on optimizing the conditions of those commercial firms that thrive in the presence of strong exclusive rights in information and culture. The outcome of the conflict between the industrial information economy and its emerging networked alternative will determine whether we evolve into a permission culture, as Lessig warns and projects, or into a society marked by social practice of nonmarket production and cooperative sharing of information, knowledge, and culture of the type I describe throughout this book, and which I argue will improve freedom and justice in liberal societies. Chapter 11 chronicles many of the arenas in which this basic conflict is played out. However, for the remainder of this part and part II, the basic economic understanding I offer here is all that is necessary. + +There are diverse motivations and strategies for organizing information production. Their relative attractiveness is to some extent dependent on technology, to some extent on institutional arrangements. The rise that we see today in the efficacy and scope of nonmarket production, and of the peer production that I describe and analyze in the following two chapters, are well within the predictable, given our understanding of the economics of information production. The social practices of information production ,{[pg 58]}, that form the basis of much of the normative analysis I offer in part II are internally sustainable given the material conditions of information production and exchange in the digitally networked environment. These patterns are unfamiliar to us. They grate on our intuitions about how production happens. They grate on the institutional arrangements we developed over the course of the twentieth century to regulate information and cultural production. But that is because they arise from a quite basically different set of material conditions. We must understand these new modes of production. We must learn to evaluate them and compare their advantages and disadvantages to those of the industrial information producers. And then we must adjust our institutional environment to make way for the new social practices made possible by the networked environment. ,{[pg 59]}, + +1~3 Chapter 3 - Peer Production and Sharing +={peer production+63;sharing+63} + +At the heart of the economic engine, of the world's most advanced economies, we are beginning to notice a persistent and quite amazing phenomenon. A new model of production has taken root; one that should not be there, at least according to our most widely held beliefs about economic behavior. It should not, the intuitions of the late-twentieth-century American would say, be the case that thousands of volunteers will come together to collaborate on a complex economic project. It certainly should not be that these volunteers will beat the largest and best-financed business enterprises in the world at their own game. And yet, this is precisely what is happening in the software world. + +Industrial organization literature provides a prominent place for the transaction costs view of markets and firms, based on insights of Ronald Coase and Oliver Williamson. On this view, people use markets when the gains from doing so, net of transaction costs, exceed the gains from doing the same thing in a managed firm, net of the costs of organizing and managing a firm. Firms emerge when the opposite is true, and transaction costs can best be reduced by ,{[pg 60]}, bringing an activity into a managed context that requires no individual transactions to allocate this resource or that effort. The emergence of free and open-source software, and the phenomenal success of its flagships, the GNU/ Linux operating system, the Apache Web server, Perl, and many others, should cause us to take a second look at this dominant paradigm.~{ For an excellent history of the free software movement and of open-source development, see Glyn Moody, Rebel Code: Inside Linux and the Open Source Revolution (New York: Perseus Publishing, 2001). }~ Free software projects do not rely on markets or on managerial hierarchies to organize production. Programmers do not generally participate in a project because someone who is their boss told them to, though some do. They do not generally participate in a project because someone offers them a price to do so, though some participants do focus on long-term appropriation through money-oriented activities, like consulting or service contracts. However, the critical mass of participation in projects cannot be explained by the direct presence of a price or even a future monetary return. This is particularly true of the all-important, microlevel decisions: who will work, with what software, on what project. In other words, programmers participate in free software projects without following the signals generated by marketbased, firm-based, or hybrid models. In chapter 2 I focused on how the networked information economy departs from the industrial information economy by improving the efficacy of nonmarket production generally. Free software offers a glimpse at a more basic and radical challenge. It suggests that the networked environment makes possible a new modality of organizing production: radically decentralized, collaborative, and nonproprietary; based on sharing resources and outputs among widely distributed, loosely connected individuals who cooperate with each other without relying on either market signals or managerial commands. This is what I call "commons-based peer production." +={Coase, Ronald;capital for production:transaction costs;commercial model of communication:transaction costs;constraints of information production, monetary:transaction cost;economics of nonmarket production:transaction costs;industrial model of communication:transaction costs;information production, market-based:transaction costs;information production capital:transaction costs;institutional ecology of digital environment:transaction costs;market-based information producers:transaction costs;monetary constraints on information production:transaction costs;nonmarket production, economics of:transaction costs;norms (social):transaction costs;physical capital for production:transaction costs;production capital:transaction costs;regulation by social norms:transaction costs;social relations and norms:transaction costs;strategies for information production:transaction costs;traditional model of communication:transaction costs;transaction costs;Williamson, Oliver;commons+3} + +"Commons" refers to a particular institutional form of structuring the rights to access, use, and control resources. It is the opposite of "property" in the following sense: With property, law determines one particular person who has the authority to decide how the resource will be used. That person may sell it, or give it away, more or less as he or she pleases. "More or less" because property doesn't mean anything goes. We cannot, for example, decide that we will give our property away to one branch of our family, as long as that branch has boys, and then if that branch has no boys, decree that the property will revert to some other branch of the family. That type of provision, once common in English property law, is now legally void for public policy reasons. There are many other things we cannot do with our property--like build on wetlands. However, the core characteristic of property ,{[pg 61]}, as the institutional foundation of markets is that the allocation of power to decide how a resource will be used is systematically and drastically asymmetric. That asymmetry permits the existence of "an owner" who can decide what to do, and with whom. We know that transactions must be made-- rent, purchase, and so forth--if we want the resource to be put to some other use. The salient characteristic of commons, as opposed to property, is that no single person has exclusive control over the use and disposition of any particular resource in the commons. Instead, resources governed by commons may be used or disposed of by anyone among some (more or less well-defined) number of persons, under rules that may range from "anything goes" to quite crisply articulated formal rules that are effectively enforced. +={property ownership:control over, as asymmetric+2;asymmetric commons+1} + +Commons can be divided into four types based on two parameters. The first parameter is whether they are open to anyone or only to a defined group. The oceans, the air, and highway systems are clear examples of open commons. Various traditional pasture arrangements in Swiss villages or irrigation regions in Spain are now classic examples, described by Eleanor Ostrom, of limited-access common resources--where access is limited only to members of the village or association that collectively "owns" some defined pasturelands or irrigation system.~{ Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990). }~ As Carol Rose noted, these are better thought of as limited common property regimes, rather than commons, because they behave as property vis-a-vis the entire world except members ` of the group who together hold them in common. The second parameter is whether a commons system is regulated or unregulated. Practically all well-studied, limited common property regimes are regulated by more or less elaborate rules--some formal, some social-conventional--governing the use of the resources. Open commons, on the other hand, vary widely. Some commons, called open access, are governed by no rule. Anyone can use resources within these types of commons at will and without payment. Air is such a resource, with respect to air intake (breathing, feeding a turbine). However, air is a regulated commons with regard to outtake. For individual human beings, breathing out is mildly regulated by social convention--you do not breath too heavily on another human being's face unless forced to. Air is a more extensively regulated commons for industrial exhalation--in the shape of pollution controls. The most successful and obvious regulated commons in contemporary landscapes are the sidewalks, streets, roads, and highways that cover our land and regulate the material foundation of our ability to move from one place to the other. In all these cases, however, the characteristic of commons is that the constraints, if any, are symmetric ,{[pg 62]}, among all users, and cannot be unilaterally controlled by any single individual. The term "commons-based" is intended to underscore that what is characteristic of the cooperative enterprises I describe in this chapter is that they are not built around the asymmetric exclusion typical of property. Rather, the inputs and outputs of the process are shared, freely or conditionally, in an institutional form that leaves them equally available for all to use as they choose at their individual discretion. This latter characteristic-- that commons leave individuals free to make their own choices with regard to resources managed as a commons--is at the foundation of the freedom they make possible. This is a freedom I return to in the discussion of autonomy. Not all commons-based production efforts qualify as peer production. Any production strategy that manages its inputs and outputs as commons locates that production modality outside the proprietary system, in a framework of social relations. It is the freedom to interact with resources and projects without seeking anyone's permission that marks commons-based production generally, and it is also that freedom that underlies the particular efficiencies of peer production, which I explore in chapter 4. +={commons:types of;limited-access common resources;open commons;regulated commons;Rose, Carol;symmetric commons;unregulated commons;freedom:of commons} + +The term "peer production" characterizes a subset of commons-based production practices. It refers to production systems that depend on individual action that is self-selected and decentralized, rather than hierarchically assigned. "Centralization" is a particular response to the problem of how to make the behavior of many individual agents cohere into an effective pattern or achieve an effective result. Its primary attribute is the separation of the locus of opportunities for action from the authority to choose the action that the agent will undertake. Government authorities, firm managers, teachers in a classroom, all occupy a context in which potentially many individual wills could lead to action, and reduce the number of people whose will is permitted to affect the actual behavior patterns that the agents will adopt. "Decentralization" describes conditions under which the actions of many agents cohere and are effective despite the fact that they do not rely on reducing the number of people whose will counts to direct effective action. A substantial literature in the past twenty years, typified, for example, by Charles Sabel's work, has focused on the ways in which firms have tried to overcome the rigidities of managerial pyramids by decentralizing learning, planning, and execution of the firm's functions in the hands of employees or teams. The most pervasive mode of "decentralization," however, is the ideal market. Each individual agent acts according to his or her will. Coherence and efficacy emerge because individuals signal their wishes, and plan ,{[pg 63]}, their behavior not in cooperation with others, but by coordinating, understanding the will of others and expressing their own through the price system. +={centralization of communications:decentralization;decentralization of communications;ideal market;Sabel, Charles} + +What we are seeing now is the emergence of more effective collective action practices that are decentralized but do not rely on either the price system or a managerial structure for coordination. In this, they complement the increasing salience of uncoordinated nonmarket behavior that we saw in chapter 2. The networked environment not only provides a more effective platform for action to nonprofit organizations that organize action like firms or to hobbyists who merely coexist coordinately. It also provides a platform for new mechanisms for widely dispersed agents to adopt radically decentralized cooperation strategies other than by using proprietary and contractual claims to elicit prices or impose managerial commands. This kind of information production by agents operating on a decentralized, nonproprietary model is not completely new. Science is built by many people contributing incrementally--not operating on market signals, not being handed their research marching orders by a boss--independently deciding what to research, bringing their collaboration together, and creating science. What we see in the networked information economy is a dramatic increase in the importance and the centrality of information produced in this way. + +2~ FREE/OPEN-SOURCE SOFTWARE +={free software+7;open-source software+7;software, open-source+7} + +The quintessential instance of commons-based peer production has been free software. Free software, or open source, is an approach to software development that is based on shared effort on a nonproprietary model. It depends on many individuals contributing to a common project, with a variety of motivations, and sharing their respective contributions without any single person or entity asserting rights to exclude either from the contributed components or from the resulting whole. In order to avoid having the joint product appropriated by any single party, participants usually retain copyrights in their contribution, but license them to anyone--participant or stranger--on a model that combines a universal license to use the materials with licensing constraints that make it difficult, if not impossible, for any single contributor or third party to appropriate the project. This model of licensing is the most important institutional innovation of the free software movement. Its central instance is the GNU General Public License, or GPL. ,{[pg 64]}, +={General Public License (GPL)+4;GPL (General Public License)+4;licensing:GPL (General Public License)+4} + +This requires anyone who modifies software and distributes the modified version to license it under the same free terms as the original software. While there have been many arguments about how widely the provisions that prevent downstream appropriation should be used, the practical adoption patterns have been dominated by forms of licensing that prevent anyone from exclusively appropriating the contributions or the joint product. More than 85 percent of active free software projects include some version of the GPL or similarly structured license.~{ Josh Lerner and Jean Tirole, "The Scope of Open Source Licensing" (Harvard NOM working paper no. 02-42, table 1, Cambridge, MA, 2002). The figure is computed out of the data reported in this paper for the number of free software development projects that Lerner and Tirole identify as having "restrictive" or "very restrictive" licenses. }~ + +Free software has played a critical role in the recognition of peer production, because software is a functional good with measurable qualities. It can be more or less authoritatively tested against its market-based competitors. And, in many instances, free software has prevailed. About 70 percent of Web server software, in particular for critical e-commerce sites, runs on the Apache Web server--free software.~{ Netcraft, April 2004 Web Server Survey, http://news.netcraft.com/archives/web_ server_survey.html. }~ More than half of all back-office e-mail functions are run by one free software program or another. Google, Amazon, and CNN.com, for example, run their Web servers on the GNU/Linux operating system. They do this, presumably, because they believe this peerproduced operating system is more reliable than the alternatives, not because the system is "free." It would be absurd to risk a higher rate of failure in their core business activities in order to save a few hundred thousand dollars on licensing fees. Companies like IBM and Hewlett Packard, consumer electronics manufacturers, as well as military and other mission-critical government agencies around the world have begun to adopt business and service strategies that rely and extend free software. They do this because it allows them to build better equipment, sell better services, or better fulfill their public role, even though they do not control the software development process and cannot claim proprietary rights of exclusion in the products of their contributions. +={GNU/Linux operating system+3} + +The story of free software begins in 1984, when Richard Stallman started working on a project of building a nonproprietary operating system he called GNU (GNU's Not Unix). Stallman, then at the Massachusetts Institute of Technology (MIT), operated from political conviction. He wanted a world in which software enabled people to use information freely, where no one would have to ask permission to change the software they use to fit their needs or to share it with a friend for whom it would be helpful. These freedoms to share and to make your own software were fundamentally incompatible with a model of production that relies on property rights and markets, he thought, because in order for there to be a market in uses of ,{[pg 65]}, software, owners must be able to make the software unavailable to people who need it. These people would then pay the provider in exchange for access to the software or modification they need. If anyone can make software or share software they possess with friends, it becomes very difficult to write software on a business model that relies on excluding people from software they need unless they pay. As a practical matter, Stallman started writing software himself, and wrote a good bit of it. More fundamentally, he adopted a legal technique that started a snowball rolling. He could not write a whole operating system by himself. Instead, he released pieces of his code under a license that allowed anyone to copy, distribute, and modify the software in whatever way they pleased. He required only that, if the person who modified the software then distributed it to others, he or she do so under the exact same conditions that he had distributed his software. In this way, he invited all other programmers to collaborate with him on this development program, if they wanted to, on the condition that they be as generous with making their contributions available to others as he had been with his. Because he retained the copyright to the software he distributed, he could write this condition into the license that he attached to the software. This meant that anyone using or distributing the software as is, without modifying it, would not violate Stallman's license. They could also modify the software for their own use, and this would not violate the license. However, if they chose to distribute the modified software, they would violate Stallman's copyright unless they included a license identical to his with the software they distributed. This license became the GNU General Public License, or GPL. The legal jujitsu Stallman used--asserting his own copyright claims, but only to force all downstream users who wanted to rely on his contributions to make their own contributions available to everyone else--came to be known as "copyleft," an ironic twist on copyright. This legal artifice allowed anyone to contribute to the GNU project without worrying that one day they would wake up and find that someone had locked them out of the system they had helped to build. +={Stallman, Richard+2;copyleft} + +The next major step came when a person with a more practical, rather than prophetic, approach to his work began developing one central component of the operating system--the kernel. Linus Torvalds began to share the early implementations of his kernel, called Linux, with others, under the GPL. These others then modified, added, contributed, and shared among themselves these pieces of the operating system. Building on top of Stallman's foundation, Torvalds crystallized a model of production that was fundamentally ,{[pg 66]}, different from those that preceded it. His model was based on voluntary contributions and ubiquitous, recursive sharing; on small incremental improvements to a project by widely dispersed people, some of whom contributed a lot, others a little. Based on our usual assumptions about volunteer projects and decentralized production processes that have no managers, this was a model that could not succeed. But it did. +={Linux operating system;Torvalds, Linus} + +It took almost a decade for the mainstream technology industry to recognize the value of free or open-source software development and its collaborative production methodology. As the process expanded and came to encompass more participants, and produce more of the basic tools of Internet connectivity--Web server, e-mail server, scripting--more of those who participated sought to "normalize" it, or, more specifically, to render it apolitical. Free software is about freedom ("free as in free speech, not free beer" is Stallman's epitaph for it). "Open-source software" was chosen as a term that would not carry the political connotations. It was simply a mode of organizing software production that may be more effective than market-based production. This move to depoliticize peer production of software led to something of a schism between the free software movement and the communities of open source software developers. It is important to understand, however, that from the perspective of society at large and the historical trajectory of information production generally the abandonment of political motivation and the importation of free software into the mainstream have not made it less politically interesting, but more so. Open source and its wide adoption in the business and bureaucratic mainstream allowed free software to emerge from the fringes of the software world and move to the center of the public debate about practical alternatives to the current way of doing things. +={collaboration, open-source+1} + +So what is open-source software development? The best source for a phenomenology of open-source development continues to be Eric Raymond's /{Cathedral and Bazaar}/, written in 1998. Imagine that one person, or a small group of friends, wants a utility. It could be a text editor, photo-retouching software, or an operating system. The person or small group starts by developing a part of this project, up to a point where the whole utility--if it is simple enough--or some important part of it, is functional, though it might have much room for improvement. At this point, the person makes the program freely available to others, with its source code--instructions in a human-readable language that explain how the software does whatever it does when compiled into a machine-readable language. When others begin ,{[pg 67]}, to use it, they may find bugs, or related utilities that they want to add (e.g., the photo-retouching software only increases size and sharpness, and one of its users wants it to allow changing colors as well). The person who has found the bug or is interested in how to add functions to the software may or may not be the best person in the world to actually write the software fix. Nevertheless, he reports the bug or the new need in an Internet forum of users of the software. That person, or someone else, then thinks that they have a way of tweaking the software to fix the bug or add the new utility. They then do so, just as the first person did, and release a new version of the software with the fix or the added utility. The result is a collaboration between three people--the first author, who wrote the initial software; the second person, who identified a problem or shortcoming; and the third person, who fixed it. This collaboration is not managed by anyone who organizes the three, but is instead the outcome of them all reading the same Internet-based forum and using the same software, which is released under an open, rather than proprietary, license. This enables some of its users to identify problems and others to fix these problems without asking anyone's permission and without engaging in any transactions. +={Raymond, Eric} + +The most surprising thing that the open source movement has shown, in real life, is that this simple model can operate on very different scales, from the small, three-person model I described for simple projects, up to the many thousands of people involved in writing the Linux kernel and the GNU/ Linux operating system--an immensely difficult production task. SourceForge, the most popular hosting-meeting place of such projects, has close to 100,000 registered projects, and nearly a million registered users. The economics of this phenomenon are complex. In the larger-scale models, actual organization form is more diverse than the simple, three-person model. In particular, in some of the larger projects, most prominently the Linux kernel development process, a certain kind of meritocratic hierarchy is clearly present. However, it is a hierarchy that is very different in style, practical implementation, and organizational role than that of the manager in the firm. I explain this in chapter 4, as part of the analysis of the organizational forms of peer production. For now, all we need is a broad outline of how peer-production projects look, as we turn to observe case studies of kindred production models in areas outside of software. ,{[pg 68]}, + +2~ PEER PRODUCTION OF INFORMATION, KNOWLEDGE, AND CULTURE GENERALLY + +Free software is, without a doubt, the most visible instance of peer production at the turn of the twenty-first century. It is by no means, however, the only instance. Ubiquitous computer communications networks are bringing about a dramatic change in the scope, scale, and efficacy of peer production throughout the information and cultural production system. As computers become cheaper and as network connections become faster, cheaper, and ubiquitous, we are seeing the phenomenon of peer production of information scale to much larger sizes, performing more complex tasks than were possible in the past for nonprofessional production. To make this phenomenon more tangible, I describe a number of such enterprises, organized to demonstrate the feasibility of this approach throughout the information production and exchange chain. While it is possible to break an act of communication into finer-grained subcomponents, largely we see three distinct functions involved in the process. First, there is an initial utterance of a humanly meaningful statement. Writing an article or drawing a picture, whether done by a professional or an amateur, whether high quality or low, is such an action. Second, there is a separate function of mapping the initial utterances on a knowledge map. In particular, an utterance must be understood as "relevant" in some sense, and "credible." Relevance is a subjective question of mapping an utterance on the conceptual map of a given user seeking information for a particular purpose defined by that individual. Credibility is a question of quality by some objective measure that the individual adopts as appropriate for purposes of evaluating a given utterance. The distinction between the two is somewhat artificial, however, because very often the utility of a piece of information will depend on a combined valuation of its credibility and relevance. I therefore refer to "relevance/accreditation" as a single function for purposes of this discussion, keeping in mind that the two are complementary and not entirely separable functions that an individual requires as part of being able to use utterances that others have uttered in putting together the user's understanding of the world. Finally, there is the function of distribution, or how one takes an utterance produced by one person and distributes it to other people who find it credible and relevant. In the mass-media world, these functions were often, though by no means always, integrated. NBC news produced the utterances, gave them credibility by clearing them on the evening news, and distributed ,{[pg 69]}, them simultaneously. What the Internet is permitting is much greater disaggregation of these functions. +={accreditation;distribution of information;filtering;information production inputs+13;inputs to production+13;production inputs+13;relevance filtering} + +3~ Uttering Content + +NASA Clickworkers was "an experiment to see if public volunteers, each working for a few minutes here and there can do some routine science analysis that would normally be done by a scientist or graduate student working for months on end." Users could mark craters on maps of Mars, classify craters that have already been marked, or search the Mars landscape for "honeycomb" terrain. The project was "a pilot study with limited funding, run part-time by one software engineer, with occasional input from two scientists." In its first six months of operation, more than 85,000 users visited the site, with many contributing to the effort, making more than 1.9 million entries (including redundant entries of the same craters, used to average out errors). An analysis of the quality of markings showed "that the automaticallycomputed consensus of a large number of clickworkers is virtually indistinguishable from the inputs of a geologist with years of experience in identifying Mars craters."~{ Clickworkers Results: Crater Marking Activity, July 3, 2001, http://clickworkers.arc .nasa.gov/documents/crater-marking.pdf. }~ The tasks performed by clickworkers (like marking craters) were discrete, each easily performed in a matter of minutes. As a result, users could choose to work for a few minutes doing a single iteration or for hours by doing many. An early study of the project suggested that some clickworkers indeed worked on the project for weeks, but that 37 percent of the work was done by one-time contributors.~{ /{B. Kanefsky, N. G. Barlow, and V. C. Gulick}/, Can Distributed Volunteers Accomplish Massive Data Analysis Tasks? http://www.clickworkers.arc.nasa.gov/documents /abstract.pdf. }~ +={clickworkers project+2;information production inputs:NASA Clickworkers project+2;inputs to production:NASA Clickworkers project+2;NASA Clickworkers+2;production inputs NASA Clickworkers project+2} + +The clickworkers project was a particularly clear example of how a complex professional task that requires a number of highly trained individuals on full-time salaries can be reorganized so as to be performed by tens of thousands of volunteers in increments so minute that the tasks could be performed on a much lower budget. The low budget would be devoted to coordinating the volunteer effort. However, the raw human capital needed would be contributed for the fun of it. The professionalism of the original scientists was replaced by a combination of high modularization of the task. The organizers broke a large, complex task into small, independent modules. They built in redundancy and automated averaging out of both errors and purposeful erroneous markings--like those of an errant art student who thought it amusing to mark concentric circles on the map. What the NASA scientists running this experiment had tapped into was a vast pool of fiveminute increments of human judgment, applied with motivation to participate in a task unrelated to "making a living." ,{[pg 70]}, + +While clickworkers was a distinct, self-conscious experiment, it suggests characteristics of distributed production that are, in fact, quite widely observable. We have already seen in chapter 2, in our little search for Viking ships, how the Internet can produce encyclopedic or almanac-type information. The power of the Web to answer such an encyclopedic question comes not from the fact that one particular site has all the great answers. It is not an Encyclopedia Britannica. The power comes from the fact that it allows a user looking for specific information at a given time to collect answers from a sufficiently large number of contributions. The task of sifting and accrediting falls to the user, motivated by the need to find an answer to the question posed. As long as there are tools to lower the cost of that task to a level acceptable to the user, the Web shall have "produced" the information content the user was looking for. These are not trivial considerations, but they are also not intractable. As we shall see, some of the solutions can themselves be peer produced, and some solutions are emerging as a function of the speed of computation and communication, which enables more efficient technological solutions. +={communities:critical culture and self-reflection+9;culture:criticality of (self-reflection)+9} + +Encyclopedic and almanac-type information emerges on the Web out of the coordinate but entirely independent action of millions of users. This type of information also provides the focus on one of the most successful collaborative enterprises that has developed in the first five years of the twenty-first century, /{Wikipedia}/. /{Wikipedia}/ was founded by an Internet entrepreneur, Jimmy Wales. Wales had earlier tried to organize an encyclopedia named Nupedia, which was built on a traditional production model, but whose outputs were to be released freely: its contributors were to be PhDs, using a formal, peer-reviewed process. That project appears to have failed to generate a sufficient number of high-quality contributions, but its outputs were used in /{Wikipedia}/ as the seeds for a radically new form of encyclopedia writing. Founded in January 2001, /{Wikipedia}/ combines three core characteristics: First, it uses a collaborative authorship tool, Wiki. This platform enables anyone, including anonymous passersby, to edit almost any page in the entire project. It stores all versions, makes changes easily visible, and enables anyone to revert a document to any prior version as well as to add changes, small and large. All contributions and changes are rendered transparent by the software and database. Second, it is a self-conscious effort at creating an encyclopedia--governed first and foremost by a collective informal undertaking to strive for a neutral point of view, within the limits of substantial self-awareness as to the difficulties of such an enterprise. An effort ,{[pg 71]}, to represent sympathetically all views on a subject, rather than to achieve objectivity, is the core operative characteristic of this effort. Third, all the content generated by this collaboration is released under the GNU Free Documentation License, an adaptation of the GNU GPL to texts. The shift in strategy toward an open, peer-produced model proved enormously successful. The site saw tremendous growth both in the number of contributors, including the number of active and very active contributors, and in the number of articles included in the encyclopedia (table 3.1). Most of the early growth was in English, but more recently there has been an increase in the number of articles in many other languages: most notably in German (more than 200,000 articles), Japanese (more than 120,000 articles), and French (about 100,000), but also in another five languages that have between 40,000 and 70,000 articles each, another eleven languages with 10,000 to 40,000 articles each, and thirty-five languages with between 1,000 and 10,000 articles each. +={critical culture and self-reflection:Wikipedia project+8;information production inputs:Wikipedia project+8;inputs to production:Wikipedia project+8;production inputs:Wikipedia project+8;self-organization:Wikipedia project+8;Wikipedia project+8} + +The first systematic study of the quality of /{Wikipedia}/ articles was published as this book was going to press. The journal Nature compared 42 science articles from /{Wikipedia}/ to the gold standard of the Encyclopedia Britannica, and concluded that "the difference in accuracy was not particularly great."~{ J. Giles, "Special Report: Internet Encyclopedias Go Head to Head," Nature, December 14, 2005, available at http://www.nature.com/news/2005/051212/full/438900a.html. }~ On November 15, 2004, Robert McHenry, a former editor in chief of the Encyclopedia Britannica, published an article criticizing /{Wikipedia}/ as "The Faith-Based Encyclopedia."~{ http://www.techcentralstation.com/111504A.html. }~ As an example, McHenry mocked the /{Wikipedia}/ article on Alexander Hamilton. He noted that Hamilton biographers have a problem fixing his birth year--whether it is 1755 or 1757. /{Wikipedia}/ glossed over this error, fixing the date at 1755. McHenry then went on to criticize the way the dates were treated throughout the article, using it as an anchor to his general claim: /{Wikipedia}/ is unreliable because it is not professionally produced. What McHenry did not note was that the other major online encyclopedias--like Columbia or Encarta--similarly failed to deal with the ambiguity surrounding Hamilton's birth date. Only the Britannica did. However, McHenry's critique triggered the /{Wikipedia}/ distributed correction mechanism. Within hours of the publication of McHenry's Web article, the reference was corrected. The following few days saw intensive cleanup efforts to conform all references in the biography to the newly corrected version. Within a week or so, /{Wikipedia}/ had a correct, reasonably clean version. It now stood alone with the Encyclopedia Britannica as a source of accurate basic encyclopedic information. In coming to curse it, McHenry found himself blessing /{Wikipedia}/. He had demonstrated ,{[pg 72]}, precisely the correction mechanism that makes /{Wikipedia}/, in the long term, a robust model of reasonably reliable information. +={McHenry, Robert} + +!_ Table 3.1: Contributors to Wikipedia, January 2001 - June 2005 + +{table~h 24; 12; 12; 12; 12; 12; 12;} + |Jan. 2001|Jan. 2002|Jan. 2003|Jan. 2004|July 2004|June 2006 +Contributors* | 10| 472| 2,188| 9,653| 25,011| 48,721 +Active contributors** | 9| 212| 846| 3,228| 8,442| 16,945 +Very active contributors*** | 0| 31| 190| 692| 1,639| 3,016 +No. of English language articles| 25| 16,000| 101,000| 190,000| 320,000| 630,000 +No. of articles, all languages | 25| 19,000| 138,000| 490,000| 862,000|1,600,000 + +\* Contributed at least ten times; \** at least 5 times in last month; \*\** more than 100 times in last month. + +- Perhaps the most interesting characteristic about /{Wikipedia}/ is the selfconscious social-norms-based dedication to objective writing. Unlike some of the other projects that I describe in this chapter, /{Wikipedia}/ does not include elaborate software-controlled access and editing capabilities. It is generally open for anyone to edit the materials, delete another's change, debate the desirable contents, survey archives for prior changes, and so forth. It depends on self-conscious use of open discourse, usually aimed at consensus. While there is the possibility that a user will call for a vote of the participants on any given definition, such calls can, and usually are, ignored by the community unless a sufficiently large number of users have decided that debate has been exhausted. While the system operators and server host-- Wales--have the practical power to block users who are systematically disruptive, this power seems to be used rarely. The project relies instead on social norms to secure the dedication of project participants to objective writing. So, while not entirely anarchic, the project is nonetheless substantially more social, human, and intensively discourse- and trust-based than the other major projects described here. The following fragments from an early version of the self-described essential characteristics and basic policies of /{Wikipedia}/ are illustrative: +={norms (social)+3;regulation by social norms+3;social regulations and norms+3} + +_1 First and foremost, the /{Wikipedia}/ project is self-consciously an encyclopedia-- rather than a dictionary, discussion forum, web portal, etc. /{Wikipedia}/'s participants ,{[pg 73]}, commonly follow, and enforce, a few basic policies that seem essential to keeping the project running smoothly and productively. First, because we have a huge variety of participants of all ideologies, and from around the world, /{Wikipedia}/ is committed to making its articles as unbiased as possible. The aim is not to write articles from a single objective point of view--this is a common misunderstanding of the policy--but rather, to fairly and sympathetically present all views on an issue. See "neutral point of view" page for further explanation. ~{ Yochai Benkler, "Coase's Penguin, or Linux and the Nature of the Firm," Yale Law Journal 112 (2001): 369. }~ +={commercial model of communication:security-related policy+2;industrial model of communication:security-related policy+2;institutional ecology of digital environment:security-related policy+2;policy:security-related policy+2;security-related policy:vandalism on Wikipedia+2;traditional model of communication:security-related policy+2;vandalism on Wikipedia+2} + +The point to see from this quotation is that the participants of /{Wikipedia}/ are plainly people who like to write. Some of them participate in other collaborative authorship projects. However, when they enter the common project of /{Wikipedia}/, they undertake to participate in a particular way--a way that the group has adopted to make its product be an encyclopedia. On their interpretation, that means conveying in brief terms the state of the art on the item, including divergent opinions about it, but not the author's opinion. Whether that is an attainable goal is a subject of interpretive theory, and is a question as applicable to a professional encyclopedia as it is to /{Wikipedia}/. As the project has grown, it has developed more elaborate spaces for discussing governance and for conflict resolution. It has developed structures for mediation, and if that fails, arbitration, of disputes about particular articles. + +The important point is that /{Wikipedia}/ requires not only mechanical cooperation among people, but a commitment to a particular style of writing and describing concepts that is far from intuitive or natural to people. It requires self-discipline. It enforces the behavior it requires primarily through appeal to the common enterprise that the participants are engaged in, coupled with a thoroughly transparent platform that faithfully records and renders all individual interventions in the common project and facilitates discourse among participants about how their contributions do, or do not, contribute to this common enterprise. This combination of an explicit statement of common purpose, transparency, and the ability of participants to identify each other's actions and counteract them--that is, edit out "bad" or "faithless" definitions--seems to have succeeded in keeping this community from devolving into inefficacy or worse. A case study by IBM showed, for example, that while there were many instances of vandalism on /{Wikipedia}/, including deletion of entire versions of articles on controversial topics like "abortion," the ability of users to see what was done and to fix it with a single click by reverting to a past version meant that acts of vandalism were ,{[pg 74]}, corrected within minutes. Indeed, corrections were so rapid that vandalism acts and their corrections did not even appear on a mechanically generated image of the abortion definition as it changed over time.~{ IBM Collaborative User Experience Research Group, History Flows: Results (2003), http://www.research.ibm.com/history/results.htm. }~ What is perhaps surprising is that this success occurs not in a tightly knit community with many social relations to reinforce the sense of common purpose and the social norms embodying it, but in a large and geographically dispersed group of otherwise unrelated participants. It suggests that even in a group of this size, social norms coupled with a facility to allow any participant to edit out purposeful or mistaken deviations in contravention of the social norms, and a robust platform for largely unmediated conversation, keep the group on track. + +A very different cultural form of distributed content production is presented by the rise of massive multiplayer online games (MMOGs) as immersive entertainment. These fall in the same cultural "time slot" as television shows and movies of the twentieth century. The interesting thing about these types of games is that they organize the production of "scripts" very differently from movies or television shows. In a game like Ultima Online or EverQuest, the role of the commercial provider is not to tell a finished, highly polished story to be consumed start to finish by passive consumers. Rather, the role of the game provider is to build tools with which users collaborate to tell a story. There have been observations about this approach for years, regarding MUDs (Multi-User Dungeons) and MOOs (Multi-User Object Oriented games). The point to understand about MMOGs is that they produce a discrete element of "content" that was in the past dominated by centralized professional production. The screenwriter of an immersive entertainment product like a movie is like the scientist marking Mars craters--a professional producer of a finished good. In MMOGs, this function is produced by using the appropriate software platform to allow the story to be written by the many users as they experience it. The individual contributions of the users/coauthors of the story line are literally done for fun-- they are playing a game. However, they are spending real economic goods-- their attention and substantial subscription fees--on a form of entertainment that uses a platform for active coproduction of a story line to displace what was once passive reception of a finished, commercially and professionally manufactured good. +={communities:immersive entertainment+1;computer gaming environment+1;entertainment industry:immersive+1;games, immersive+1;immersive entertainment+1;information production inputs:immersive entertainment+1;inputs to production:immersive entertainment+1;massive multiplayer games;MMOGs (massive multiplayer online games);production inputs:immersive entertainment+1} + +By 2003, a company called Linden Lab took this concept a major step forward by building an online game environment called Second Life. Second Life began almost entirely devoid of content. It was tools all the way down. ,{[pg 75]}, Within a matter of months, it had thousands of subscribers, inhabiting a "world" that had thousands of characters, hundreds of thousands of objects, multiple areas, villages, and "story lines." The individual users themselves had created more than 99 percent of all objects in the game environment, and all story lines and substantive frameworks for interaction--such as a particular village or group of theme-based participants. The interactions in the game environment involved a good deal of gift giving and a good deal of trade, but also some very surprising structured behaviors. Some users set up a university, where lessons were given in both in-game skills and in programming. Others designed spaceships and engaged in alien abductions (undergoing one seemed to become a status symbol within the game). At one point, aiming (successfully) to prevent the company from changing its pricing policy, users staged a demonstration by making signs and picketing the entry point to the game; and a "tax revolt" by placing large numbers of "tea crates" around an in-game reproduction of the Washington Monument. Within months, Second Life had become an immersive experience, like a movie or book, but one where the commercial provider offered a platform and tools, while the users wrote the story lines, rendered the "set," and performed the entire play. +={Second Life game environment} + +3~ Relevance/Accreditation +={accreditation+10;filtering+10;relevance filtering+10} + +How are we to know that the content produced by widely dispersed individuals is not sheer gobbledygook? Can relevance and accreditation itself be produced on a peer-production model? One type of answer is provided by looking at commercial businesses that successfully break off precisely the "accreditation and relevance" piece of their product, and rely on peer production to perform that function. Amazon and Google are probably the two most prominent examples of this strategy. +={accreditation:Amazon+1;Amazon+1;filtering:Amazon+1;relevance filtering:Amazon+1} + +Amazon uses a mix of mechanisms to get in front of their buyers of books and other products that the users are likely to purchase. A number of these mechanisms produce relevance and accreditation by harnessing the users themselves. At the simplest level, the recommendation "customers who bought items you recently viewed also bought these items" is a mechanical means of extracting judgments of relevance and accreditation from the actions of many individuals, who produce the datum of relevance as byproduct of making their own purchasing decisions. Amazon also allows users to create topical lists and track other users as their "friends and favorites." Amazon, like many consumer sites today, also provides users with the ability ,{[pg 76]}, to rate books they buy, generating a peer-produced rating by averaging the ratings. More fundamentally, the core innovation of Google, widely recognized as the most efficient general search engine during the first half of the 2000s, was to introduce peer-based judgments of relevance. Like other search engines at the time, Google used a text-based algorithm to retrieve a given universe of Web pages initially. Its major innovation was its PageRank algorithm, which harnesses peer production of ranking in the following way. The engine treats links from other Web sites pointing to a given Web site as votes of confidence. Whenever someone who authors a Web site links to someone else's page, that person has stated quite explicitly that the linked page is worth a visit. Google's search engine counts these links as distributed votes of confidence in the quality of the page pointed to. Pages that are heavily linked-to count as more important votes of confidence. If a highly linked-to site links to a given page, that vote counts for more than the vote of a site that no one else thinks is worth visiting. The point to take home from looking at Google and Amazon is that corporations that have done immensely well at acquiring and retaining users have harnessed peer production to enable users to find things they want quickly and efficiently. +={accreditation:Google;communities:critical culture and self-reflection+1;culture:criticality of (self-reflection)+1;filtering:Google;Google;relevance filtering:Google} + +The most prominent example of a distributed project self-consciously devoted to peer production of relevance is the Open Directory Project. The site relies on more than sixty thousand volunteer editors to determine which links should be included in the directory. Acceptance as a volunteer requires application. Quality relies on a peer-review process based substantially on seniority as a volunteer and level of engagement with the site. The site is hosted and administered by Netscape, which pays for server space and a small number of employees to administer the site and set up the initial guidelines. Licensing is free and presumably adds value partly to America Online's (AOL's) and Netscape's commercial search engine/portal and partly through goodwill. Volunteers are not affiliated with Netscape and receive no compensation. They spend time selecting sites for inclusion in the directory (in small increments of perhaps fifteen minutes per site reviewed), producing the most comprehensive, highest-quality human-edited directory of the Web--at this point outshining the directory produced by the company that pioneered human edited directories of the Web: Yahoo!. +={accreditation:Open Directory Project (ODP);critical culture and self-reflection:Open Directory Project;filtering:Open Directory Project (ODP);ODP (Open Directory Project);Open Directory Project (ODP);relevance filtering:Open Directory Project (ODP);self-organization:Open Directory Project} + +Perhaps the most elaborate platform for peer production of relevance and accreditation, at multiple layers, is used by Slashdot. Billed as "News for Nerds," Slashdot has become a leading technology newsletter on the Web, coproduced by hundreds of thousands of users. Slashdot primarily consists ,{[pg 77]}, of users commenting on initial submissions that cover a variety of technology-related topics. The submissions are typically a link to an off-site story, coupled with commentary from the person who submits the piece. Users follow up the initial submission with comments that often number in the hundreds. The initial submissions themselves, and more importantly, the approach to sifting through the comments of users for relevance and accreditation, provide a rich example of how this function can be performed on a distributed, peer-production model. +={accreditation:Slashdot+6;filtering:Slashdot+6;relevance filtering:Slashdot+6;Slashdot+6} + +First, it is important to understand that the function of posting a story from another site onto Slashdot, the first "utterance" in a chain of comments on Slashdot, is itself an act of relevance production. The person submitting the story is telling the community of Slashdot users, "here is a story that `News for Nerds' readers should be interested in." This initial submission of a link is itself very coarsely filtered by editors who are paid employees of Open Source Technology Group (OSTG), which runs a number of similar platforms--like SourceForge, the most important platform for free software developers. OSTG is a subsidiary of VA Software, a software services company. The FAQ (Frequently Asked Question) response to, "how do you verify the accuracy of Slashdot stories?" is revealing: "We don't. You do. If something seems outrageous, we might look for some corroboration, but as a rule, we regard this as the responsibility of the submitter and the audience. This is why it's important to read comments. You might find something that refutes, or supports, the story in the main." In other words, Slashdot very self-consciously is organized as a means of facilitating peer production of accreditation; it is at the comments stage that the story undergoes its most important form of accreditation--peer review ex-post. +={OSTG (Open Source Technology Group)} + +Filtering and accreditation of comments on Slashdot offer the most interesting case study of peer production of these functions. Users submit comments that are displayed together with the initial submission of a story. Think of the "content" produced in these comments as a cross between academic peer review of journal submissions and a peer-produced substitute for television's "talking heads." It is in the means of accrediting and evaluating these comments that Slashdot's system provides a comprehensive example of peer production of relevance and accreditation. Slashdot implements an automated system to select moderators from the pool of users. Moderators are chosen according to several criteria; they must be logged in (not anonymous), they must be regular users (who use the site averagely, not one-time page loaders or compulsive users), they must have been using ,{[pg 78]}, the site for a while (this defeats people who try to sign up just to moderate), they must be willing, and they must have positive "karma." Karma is a number assigned to a user that primarily reflects whether he or she has posted good or bad comments (according to ratings from other moderators). If a user meets these criteria, the program assigns the user moderator status and the user gets five "influence points" to review comments. The moderator rates a comment of his choice using a drop-down list with words such as "flamebait" and "informative." A positive word increases the rating of a comment one point and a negative word decreases the rating a point. Each time a moderator rates a comment, it costs one influence point, so he or she can only rate five comments for each moderating period. The period lasts for three days and if the user does not use the influence points, they expire. The moderation setup is designed to give many users a small amount of power. This decreases the effect of users with an ax to grind or with poor judgment. The site also implements some automated "troll filters," which prevent users from sabotaging the system. Troll filters stop users from posting more than once every sixty seconds, prevent identical posts, and will ban a user for twenty-four hours if he or she has been moderated down several times within a short time frame. Slashdot then provides users with a "threshold" filter that allows each user to block lower-quality comments. The scheme uses the numerical rating of the comment (ranging from 1 to 5). Comments start out at 0 for anonymous posters, 1 for registered users, and 2 for registered users with good "karma." As a result, if a user sets his or her filter at 1, the user will not see any comments from anonymous posters unless the comments' ratings were increased by a moderator. A user can set his or her filter anywhere from 1 (viewing all of the comments) to 5 (where only the posts that have been upgraded by several moderators will show up). +={karma (Slashdot);norms (social):Slashdot mechanisms for+3;regulation by social norms:Slashdot mechanisms for+3;social relations and norms:Slashdot mechanisms for+3;troll filters (Slashdot)} + +Relevance, as distinct from accreditation, is also tied into the Slashdot scheme because off-topic posts should receive an "off topic" rating by the moderators and sink below the threshold level (assuming the user has the threshold set above the minimum). However, the moderation system is limited to choices that sometimes are not mutually exclusive. For instance, a moderator may have to choose between "funny" ( 1) and "off topic" ( 1) when a post is both funny and off topic. As a result, an irrelevant post can increase in ranking and rise above the threshold level because it is funny or informative. It is unclear, however, whether this is a limitation on relevance, or indeed mimics our own normal behavior, say in reading a newspaper or browsing a library, where we might let our eyes linger longer on a funny or ,{[pg 79]}, informative tidbit, even after we have ascertained that it is not exactly relevant to what we were looking for. + +The primary function of moderation is to provide accreditation. If a user sets a high threshold level, they will only see posts that are considered of high quality by the moderators. Users also receive accreditation through their karma. If their posts consistently receive high ratings, their karma will increase. At a certain karma level, their comments will start off with a rating of 2, thereby giving them a louder voice in the sense that users with a threshold of 2 will now see their posts immediately, and fewer upward moderations are needed to push their comments even higher. Conversely, a user with bad karma from consistently poorly rated comments can lose accreditation by having his or her posts initially start off at 0 or 1. In addition to the mechanized means of selecting moderators and minimizing their power to skew the accreditation system, Slashdot implements a system of peer-review accreditation for the moderators themselves. Slashdot accomplishes this "metamoderation" by making any user that has an account from the first 90 percent of accounts created on the system eligible to evaluate the moderators. Each eligible user who opts to perform metamoderation review is provided with ten random moderator ratings of comments. The user/metamoderator then rates the moderator's rating as either unfair, fair, or neither. The metamoderation process affects the karma of the original moderator, which, when lowered sufficiently by cumulative judgments of unfair ratings, will remove the moderator from the moderation system. +={metamoderation (Slashdot)+1} + +Together, these mechanisms allow for distributed production of both relevance and accreditation. Because there are many moderators who can moderate any given comment, and thanks to the mechanisms that explicitly limit the power of any one moderator to overinfluence the aggregate judgment, the system evens out differences in evaluation by aggregating judgments. It then allows individual users to determine what level of accreditation pronounced by this aggregate system fits their particular time and needs by setting their filter to be more or less inclusive. By introducing "karma," the system also allows users to build reputation over time, and to gain greater control over the accreditation of their own work relative to the power of the critics. Users, moderators, and metamoderators are all volunteers. + +The primary point to take from the Slashdot example is that the same dynamic that we saw used for peer production of initial utterances, or content, can be implemented to produce relevance and accreditation. Rather than using the full-time effort of professional accreditation experts, the system ,{[pg 80]}, is designed to permit the aggregation of many small judgments, each of which entails a trivial effort for the contributor, regarding both relevance and accreditation of the materials. The software that mediates the communication among the collaborating peers embeds both the means to facilitate the participation and a variety of mechanisms designed to defend the common effort from poor judgment or defection. + +3~ Value-Added Distribution +={distribution of information+3} + +Finally, when we speak of information or cultural goods that exist (content has been produced) and are made usable through some relevance and accreditation mechanisms, there remains the question of distribution. To some extent, this is a nonissue on the Internet. Distribution is cheap. All one needs is a server and large pipes connecting one's server to the world. Nonetheless, this segment of the publication process has also provided us with important examples of peer production, including one of its earliest examples--Project Gutenberg. + +Project Gutenberg entails hundreds of volunteers who scan in and correct books so that they are freely available in digital form. It has amassed more than 13,000 books, and makes the collection available to everyone for free. The vast majority of the "e-texts" offered are public domain materials. The site itself presents the e-texts in ASCII format, the lowest technical common denominator, but does not discourage volunteers from offering the e-texts in markup languages. It contains a search engine that allows a reader to search for typical fields such as subject, author, and title. Project Gutenberg volunteers can select any book that is in the public domain to transform into an e-text. The volunteer submits a copy of the title page of the book to Michael Hart--who founded the project--for copyright research. The volunteer is notified to proceed if the book passes the copyright clearance. The decision on which book to convert to e-text is left up to the volunteer, subject to copyright limitations. Typically, a volunteer converts a book to ASCII format using OCR (optical character recognition) and proofreads it one time in order to screen it for major errors. He or she then passes the ASCII file to a volunteer proofreader. This exchange is orchestrated with very little supervision. The volunteers use a Listserv mailing list and a bulletin board to initiate and supervise the exchange. In addition, books are labeled with a version number indicating how many times they have been proofed. The site encourages volunteers to select a book that has a low number and proof it. The Project Gutenberg proofing process is simple. ,{[pg 81]}, Proofreaders (aside from the first pass) are not expected to have access to the book, but merely review the e-text for self-evident errors. +={Hart, Michael+1;Project Gutenberg+1} + +Distributed Proofreading, a site originally unaffiliated with Project Gutenberg, is devoted to proofing Project Gutenberg e-texts more efficiently, by distributing the volunteer proofreading function in smaller and more information-rich modules. Charles Franks, a computer programmer from Las Vegas, decided that he had a more efficient way to proofread these etexts. He built an interface that allowed volunteers to compare scanned images of original texts with the e-texts available on Project Gutenberg. In the Distributed Proofreading process, scanned pages are stored on the site, and volunteers are shown a scanned page and a page of the e-text simultaneously so that they can compare the e-text to the original page. Because of the fine-grained modularity, proofreaders can come on the site and proof one or a few pages and submit them. By contrast, on the Project Gutenberg site, the entire book is typically exchanged, or at minimum, a chapter. In this fashion, Distributed Proofreading clears the proofing of tens of thousands of pages every month. After a couple of years of working independently, Franks joined forces with Hart. By late 2004, the site had proofread more than five thousand volumes using this method. +={Franks, Charles;distributed production} + +3~ Sharing of Processing, Storage, and Communications Platforms +={allocating excess capacity+15;capacity:sharing+15;excess capacity, sharing+15;reallocating excess capacity+15;sharing+15:excess capacity+15} + +All the examples of peer production that we have seen up to this point have been examples where individuals pool their time, experience, wisdom, and creativity to form new information, knowledge, and cultural goods. As we look around the Internet, however, we find that users also cooperate in similar loosely affiliated groups, without market signals or managerial commands, to build supercomputers and massive data storage and retrieval systems. In their radical decentralization and reliance on social relations and motivations, these sharing practices are similar to peer production of information, knowledge, and culture. They differ in one important aspect: Users are not sharing their innate and acquired human capabilities, and, unlike information, their inputs and outputs are not public goods. The participants are, instead, sharing material goods that they privately own, mostly personal computers and their components. They produce economic, not public, goods--computation, storage, and communications capacity. +={supercomputers+1;capacity:processing (computational)+1;computational capacity+1;processing capacity+1} + +As of the middle of 2004, the fastest supercomputer in the world was SETI@home. It ran about 75 percent faster than the supercomputer that ,{[pg 82]}, was then formally known as "the fastest supercomputer in the world": the IBM Blue Gene/L. And yet, there was and is no single SETI@home computer. Instead, the SETI@home project has developed software and a collaboration platform that have enabled millions of participants to pool their computation resources into a single powerful computer. Every user who participates in the project must download a small screen saver. When a user's personal computer is idle, the screen saver starts up, downloads problems for calculation--in SETI@home, these are radio astronomy signals to be analyzed for regularities--and calculates the problem it has downloaded. Once the program calculates a solution, it automatically sends its results to the main site. The cycle continues for as long as, and repeats every time that, the computer is idle from its user's perspective. As of the middle of 2004, the project had harnessed the computers of 4.5 million users, allowing it to run computations at speeds greater than those achieved by the fastest supercomputers in the world that private firms, using full-time engineers, developed for the largest and best-funded government laboratories in the world. SETI@home is the most prominent, but is only one among dozens of similarly structured Internet-based distributed computing platforms. Another, whose structure has been the subject of the most extensive formal analysis by its creators, is Folding@home. As of mid-2004, Folding@home had amassed contributions of about 840,000 processors contributed by more than 365,000 users. +={SETI@home project+2;distributed computing projects+2;Folding@home project+2;home project+2} + +SETI@home and Folding@home provide a good basis for describing the fairly common characteristics of Internet-based distributed computation projects. First, these are noncommercial projects, engaged in pursuits understood as scientific, for the general good, seeking to harness contributions of individuals who wish to contribute to such larger-than-themselves goals. SETI@home helps in the search for extraterrestrial intelligence. Folding@home helps in protein folding research. Fightaids@home is dedicated to running models that screen compounds for the likelihood that they will provide good drug candidates to fight HIV/AIDS. Genome@home is dedicated to modeling artificial genes that would be created to generate useful proteins. Other sites, like those dedicated to cryptography or mathematics, have a narrower appeal, and combine "altruistic" with hobby as their basic motivational appeal. The absence of money is, in any event, typical of the large majority of active distributed computing projects. Less than one-fifth of these projects mention money at all. Most of those that do mention money refer to the contributors' eligibility for a share of a generally available ,{[pg 83]}, prize for solving a scientific or mathematical challenge, and mix an appeal to hobby and altruism with the promise of money. Only two of about sixty projects active in 2004 were built on a pay-per-contribution basis, and these were quite small-scale by comparison to many of the others. +={altruism+1;Fightaids@home project;Genome@home project} + +Most of the distributed computing projects provide a series of utilities and statistics intended to allow contributors to attach meaning to their contributions in a variety of ways. The projects appear to be eclectic in their implicit social and psychological theories of the motivations for participation in the projects. Sites describe the scientific purpose of the models and the specific scientific output, including posting articles that have used the calculations. In these components, the project organizers seem to assume some degree of taste for generalized altruism and the pursuit of meaning in contributing to a common goal. They also implement a variety of mechanisms to reinforce the sense of purpose, such as providing aggregate statistics about the total computations performed by the project as a whole. However, the sites also seem to assume a healthy dose of what is known in the anthropology of gift literature as agonistic giving--that is, giving intended to show that the person giving is greater than or more important than others, who gave less. For example, most of the sites allow individuals to track their own contributions, and provide "user of the month"-type rankings. An interesting characteristic of quite a few of these is the ability to create "teams" of users, who in turn compete on who has provided more cycles or work units. SETI@home in particular taps into ready-made nationalisms, by offering country-level statistics. Some of the team names on Folding@home also suggest other, out-of-project bonding measures, such as national or ethnic bonds (for example, Overclockers Australia or Alliance Francophone), technical minority status (for example, Linux or MacAddict4Life), and organizational affiliation (University of Tennessee or University of Alabama), as well as shared cultural reference points (Knights who say Ni!). In addition, the sites offer platforms for simple connectedness and mutual companionship, by offering user fora to discuss the science and the social participation involved. It is possible that these sites are shooting in the dark, as far as motivating sharing is concerned. It also possible, however, that they have tapped into a valuable insight, which is that people behave sociably and generously for all sorts of different reasons, and that at least in this domain, adding reasons to participate--some agonistic, some altruistic, some reciprocity-seeking--does not have a crowding-out effect. +={agnostic giving} + +Like distributed computing projects, peer-to-peer file-sharing networks are ,{[pg 84]}, an excellent example of a highly efficient system for storing and accessing data in a computer network. These networks of sharing are much less "mysterious," in terms of understanding the human motivation behind participation. Nevertheless, they provide important lessons about the extent to which large-scale collaboration among strangers or loosely affiliated users can provide effective communications platforms. For fairly obvious reasons, we usually think of peer-to-peer networks, beginning with Napster, as a "problem." This is because they were initially overwhelmingly used to perform an act that, by the analysis of almost any legal scholar, was copyright infringement. To a significant extent, they are still used in this form. There were, and continue to be, many arguments about whether the acts of the firms that provided peer-to-peer software were responsible for the violations. However, there has been little argument that anyone who allows thousands of other users to make copies of his or her music files is violating copyright-- hence the public interpretation of the creation of peer-to-peer networks as primarily a problem. From the narrow perspective of the law of copyright or of the business model of the recording industry and Hollywood, this may be an appropriate focus. From the perspective of diagnosing what is happening to our social and economic structure, the fact that the files traded on these networks were mostly music in the first few years of this technology's implementation is little more than a distraction. Let me explain why. +={file-sharing networks+4;p2p networks+4;peer-to-peer networks+4;logical layer of institutional ecology:peer-to-peer networks+4;network topology:peer-to-peer networks+4;structure of network:peer-to-peer networks+4;topology, network:peer-to-peer networks+4;music industry:peer-to-peer networks and+1;proprietary rights:peer-to-peer networks and+1} + +Imagine for a moment that someone--be it a legislator defining a policy goal or a businessperson defining a desired service--had stood up in mid1999 and set the following requirements: "We would like to develop a new music and movie distribution system. We would like it to store all the music and movies ever digitized. We would like it to be available from anywhere in the world. We would like it to be able to serve tens of millions of users at any given moment." Any person at the time would have predicted that building such a system would cost tens if not hundreds of millions of dollars; that running it would require large standing engineering staffs; that managing it so that users could find what they wanted and not drown in the sea of content would require some substantial number of "curators"--DJs and movie buffs--and that it would take at least five to ten years to build. Instead, the system was built cheaply by a wide range of actors, starting with Shawn Fanning's idea and implementation of Napster. Once the idea was out, others perfected the idea further, eliminating the need for even the one centralized feature that Napster included--a list of who had what files on which computer that provided the matchmaking function in the Napster ,{[pg 85]}, network. Since then, under the pressure of suits from the recording industry and a steady and persistent demand for peer-to-peer music software, rapid successive generations of Gnutella, and then the FastTrack clients KaZaa and Morpheus, Overnet and eDonkey, the improvements of BitTorrent, and many others have enhanced the reliability, coverage, and speed of the peer-to-peer music distribution system--all under constant threat of litigation, fines, police searches and even, in some countries, imprisonment of the developers or users of these networks. +={Fanning, Shawn} + +What is truly unique about peer-to-peer networks as a signal of what is to come is the fact that with ridiculously low financial investment, a few teenagers and twenty-something-year-olds were able to write software and protocols that allowed tens of millions of computer users around the world to cooperate in producing the most efficient and robust file storage and retrieval system in the world. No major investment was necessary in creating a server farm to store and make available the vast quantities of data represented by the media files. The users' computers are themselves the "server farm." No massive investment in dedicated distribution channels made of high-quality fiber optics was necessary. The standard Internet connections of users, with some very intelligent file transfer protocols, sufficed. Architecture oriented toward enabling users to cooperate with each other in storage, search, retrieval, and delivery of files was all that was necessary to build a content distribution network that dwarfed anything that existed before. + +Again, there is nothing mysterious about why users participate in peer-to-peer networks. They want music; they can get it from these networks for free; so they participate. The broader point to take from looking at peer-to-peer file-sharing networks, however, is the sheer effectiveness of large-scale collaboration among individuals once they possess, under their individual control, the physical capital necessary to make their cooperation effective. These systems are not "subsidized," in the sense that they do not pay the full marginal cost of their service. Remember, music, like all information, is a nonrival public good whose marginal cost, once produced, is zero. Moreover, digital files are not "taken" from one place in order to be played in the other. They are replicated wherever they are wanted, and thereby made more ubiquitous, not scarce. The only actual social cost involved at the time of the transmission is the storage capacity, communications capacity, and processing capacity necessary to store, catalog, search, retrieve, and transfer the information necessary to replicate the files from where copies reside to where more copies are desired. As with any nonrival good, if Jane is willing ,{[pg 86]}, to spend the actual social costs involved in replicating the music file that already exists and that Jack possesses, then it is efficient that she do so without paying the creator a dime. It may throw a monkey wrench into the particular way in which our society has chosen to pay musicians and recording executives. This, as we saw in chapter 2, trades off efficiency for longer-term incentive effects for the recording industry. However, it is efficient within the normal meaning of the term in economics in a way that it would not have been had Jane and Jack used subsidized computers or network connections. +={information production:nonrivalry;production of information:nonrivalry;networks sharing} + +As with distributed computing, peer-to-peer file-sharing systems build on the fact that individual users own vast quantities of excess capacity embedded in their personal computers. As with distributed computing, peer-to-peer networks developed architectures that allowed users to share this excess capacity with each other. By cooperating in these sharing practices, users construct together systems with capabilities far exceeding those that they could have developed by themselves, as well as the capabilities that even the best-financed corporations could provide using techniques that rely on components they fully owned. The network components owned by any single music delivery service cannot match the collective storage and retrieval capabilities of the universe of users' hard drives and network connections. Similarly, the processors arrayed in the supercomputers find it difficult to compete with the vast computation resource available on the millions of personal computers connected to the Internet, and the proprietary software development firms find themselves competing, and in some areas losing to, the vast pool of programming talent connected to the Internet in the form of participants in free and open source software development projects. +={capacity:processing (computational)|storage;computational capacity;data storage capacity;information sharing;processing capacity;storage capacity;connectivity+1} + +In addition to computation and storage, the last major element of computer communications networks is connectivity. Here, too, perhaps more dramatically than in either of the two other functionalities, we have seen the development of sharing-based techniques. The most direct transfer of the design characteristics of peer-to-peer networks to communications has been the successful development of Skype--an Internet telephony utility that allows the owners of computers to have voice conversations with each other over the Internet for free, and to dial into the public telephone network for a fee. As of this writing, Skype is already used by more than two million users at any given moment in time. They use a FastTrack-like architecture to share their computing and communications resources to create a global ,{[pg 87]}, telephone system running on top of the Internet. It was created, and is run by, the developers of KaZaa. +={Skype utility} + +Most dramatically, however, we have seen these techniques emerging in wireless communications. Throughout almost the entire twentieth century, radio communications used a single engineering approach to allow multiple messages to be sent wirelessly in a single geographic area. This approach was to transmit each of the different simultaneous messages by generating separate electromagnetic waves for each, which differed from each other by the frequency of oscillation, or wavelength. The receiver could then separate out the messages by ignoring all electromagnetic energy received at its antenna unless it oscillated at the frequency of the desired message. This engineering technique, adopted by Marconi in 1900, formed the basis of our notion of "spectrum": the range of frequencies at which we know how to generate electromagnetic waves with sufficient control and predictability that we can encode and decode information with them, as well as the notion that there are "channels" of spectrum that are "used" by a communication. For more than half a century, radio communications regulation was thought necessary because spectrum was scarce, and unless regulated, everyone would transmit at all frequencies causing chaos and an inability to send messages. From 1959, when Ronald Coase first published his critique of this regulatory approach, until the early 1990s, when spectrum auctions began, the terms of the debate over "spectrum policy," or wireless communications regulation, revolved around whether the exclusive right to transmit radio signals in a given geographic area should be granted as a regulatory license or a tradable property right. In the 1990s, with the introduction of auctions, we began to see the adoption of a primitive version of a property-based system through "spectrum auctions." By the early 2000s, this system allowed the new "owners" of these exclusive rights to begin to shift what were initially purely mobile telephony systems to mobile data communications as well. +={Coase, Ronald;proprietary rights:wireless networks;wireless communications+2} + +By this time, however, the century-old engineering assumptions that underlay the regulation-versus-property conceptualization of the possibilities open for the institutional framework of wireless communications had been rendered obsolete by new computation and network technologies.~{ For the full argument, see Yochai Benkler, "Some Economics of Wireless Communications," Harvard Journal of Law and Technology 16 (2002): 25; and Yochai Benkler, "Overcoming Agoraphobia: Building the Commons of the Digitally Networked Environment," Harvard Journal of Law and Technology 11 (1998): 287. For an excellent overview of the intellectual history of this debate and a contribution to the institutional design necessary to make space for this change, see Kevin Werbach, "Supercommons: Towards a Unified Theory of Wireless Communication," Texas Law Review 82 (2004): 863. The policy implications of computationally intensive radios using wide bands were first raised by George Gilder in "The New Rule of the Wireless," Forbes ASAP, March 29, 1993, and Paul Baran, "Visions of the 21st Century Communications: Is the Shortage of Radio Spectrum for Broadband Networks of the Future a Self Made Problem?" (keynote talk transcript, 8th Annual Conference on Next Generation Networks, Washington, DC, November 9, 1994). Both statements focused on the potential abundance of spectrum, and how it renders "spectrum management" obsolete. Eli Noam was the first to point out that, even if one did not buy the idea that computationally intensive radios eliminated scarcity, they still rendered spectrum property rights obsolete, and enabled instead a fluid, dynamic, real-time market in spectrum clearance rights. See Eli Noam, "Taking the Next Step Beyond Spectrum Auctions: Open Spectrum Access," Institute of Electrical and Electronics Engineers Communications Magazine 33, no. 12 (1995): 66-73; later elaborated in Eli Noam, "Spectrum Auction: Yesterday's Heresy, Today's Orthodoxy, Tomorrow's Anachronism. Taking the Next Step to Open Spectrum Access," Journal of Law and Economics 41 (1998): 765, 778-780. The argument that equipment markets based on a spectrum commons, or free access to frequencies, could replace the role planned for markets in spectrum property rights with computationally intensive equipment and sophisticated network sharing protocols, and would likely be more efficient even assuming that scarcity persists, was made in Benkler, "Overcoming Agoraphobia." Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999) and Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001) developed a rationale based on the innovation dynamic in support of the economic value of open wireless networks. David Reed, "Comments for FCC Spectrum Task Force on Spectrum Policy," filed with the Federal Communications Commission July 10, 2002, crystallized the technical underpinnings and limitations of the idea that spectrum can be regarded as property. }~ The dramatic decline in computation cost and improvements in digital signal processing, network architecture, and antenna systems had fundamentally changed the design space of wireless communications systems. Instead of having one primary parameter with which to separate out messages--the ,{[pg 88]}, frequency of oscillation of the carrier wave--engineers could now use many different mechanisms to allow much smarter receivers to separate out the message they wanted to receive from all other sources of electromagnetic radiation in the geographic area they occupied. Radio transmitters could now transmit at the same frequency, simultaneously, without "interfering" with each other--that is, without confusing the receivers as to which radiation carried the required message and which did not. Just like automobiles that can share a commons-based medium--the road--and unlike railroad cars, which must use dedicated, owned, and managed railroad tracks--these new radios could share "the spectrum" as a commons. It was no longer necessary, or even efficient, to pass laws--be they in the form of regulations or of exclusive property-like rights--that carved up the usable spectrum into exclusively controlled slices. Instead, large numbers of transceivers, owned and operated by end users, could be deployed and use equipment-embedded protocols to coordinate their communications. + +The reasons that owners would share the excess capacity of their new radios are relatively straightforward in this case. Users want to have wireless connectivity all the time, to be reachable and immediately available everywhere. However, they do not actually want to communicate every few microseconds. They will therefore be willing to purchase and keep turned on equipment that provides them with such connectivity. Manufacturers, in turn, will develop and adhere to standards that will improve capacity and connectivity. As a matter of engineering, what has been called "cooperation gain"--the improved quality of the system gained when the nodes cooperate--is the most promising source of capacity scaling for distributed wireless systems.~{ See Benkler, "Some Economics," 44-47. The term "cooperation gain" was developed by Reed to describe a somewhat broader concept than "diversity gain" is in multiuser information theory. }~ Cooperation gain is easy to understand from day-to-day interactions. When we sit in a lecture and miss a word or two, we might turn to a neighbor and ask, "Did you hear what she said?" In radio systems, this kind of cooperation among the antennae (just like the ears) of neighbors is called antenna diversity, and is the basis for the design of a number of systems to improve reception. We might stand in a loud crowd without being able to shout or walk over to the other end of the room, but ask a friend: "If you see so and so, tell him x"; that friend then bumps into a friend of so and so and tells that person: "If you see so and so, tell him x"; and so forth. When we do this, we are using what in radio engineering is called repeater networks. These kinds of cooperative systems can carry much higher loads without interference, sharing wide swaths of spectrum, ,{[pg 89]}, in ways that are more efficient than systems that rely on explicit market transactions based on property in the right to emit power in discrete frequencies. The design of such "ad hoc mesh networks"--that is, networks of radios that can configure themselves into cooperative networks as need arises, and help each other forward messages and decipher incoming messages over the din of radio emissions--are the most dynamic area in radio engineering today. +={cooperation gain;network topology:repeater networks+1;repeater networks+1;structure of network:repeater network+1;topology, network:repeater networks+1;ad hoc mesh networks} + +This technological shift gave rise to the fastest-growing sector in the wireless communications arena in the first few years of the twenty-first century-- WiFi and similar unlicensed wireless devices. The economic success of the equipment market that utilizes the few primitive "spectrum commons" available in the United States--originally intended for low-power devices like garage openers and the spurious emissions of microwave ovens--led toward at first slow, and more recently quite dramatic, change in U.S. wireless policy. In the past two years alone, what have been called "commons-based" approaches to wireless communications policy have come to be seen as a legitimate, indeed a central, component of the Federal Communication Commission's (FCC's) wireless policy.~{ Spectrum Policy Task Force Report to the Commission (Federal Communications Commission, Washington, DC, 2002); Michael K. Powell, "Broadband Migration III: New Directions in Wireless Policy" (Remarks at the Silicon Flatiron Telecommunications Program, University of Colorado at Boulder, October 30, 2002). }~ We are beginning to see in this space the most prominent example of a system that was entirely oriented toward regulation aimed at improving the institutional conditions of marketbased production of wireless transport capacity sold as a finished good (connectivity minutes), shifting toward enabling the emergence of a market in shareable goods (smart radios) designed to provision transport on a sharing model. +={commons:wireless communications as} + +I hope these detailed examples provide a common set of mental pictures of what peer production looks like. In the next chapter I explain the economics of peer production of information and the sharing of material resources for computation, communications, and storage in particular, and of nonmarket, social production more generally: why it is efficient, how we can explain the motivations that lead people to participate in these great enterprises of nonmarket cooperation, and why we see so much more of it online than we do off-line. The moral and political discussion throughout the remainder of the book does not, however, depend on your accepting the particular analysis I offer in chapter 4 to "domesticate" these phenomena within more or less standard economics. At this point, it is important that the stories have provided a texture for, and established the plausibility of, ,{[pg 90]}, the claim that nonmarket production in general and peer production in particular are phenomena of much wider application than free software, and exist in important ways throughout the networked information economy. For purposes of understanding the political implications that occupy most of this book, that is all that is necessary. ,{[pg 91]}, + +1~4 Chapter 4 - The Economics of Social Production +={economics of nonmarket production+68;nonmarket production, economics of+68} + +The increasing salience of nonmarket production in general, and peer production in particular, raises three puzzles from an economics perspective. First, why do people participate? What is their motivation when they work for or contribute resources to a project for which they are not paid or directly rewarded? Second, why now, why here? What, if anything, is special about the digitally networked environment that would lead us to believe that peer production is here to stay as an important economic phenomenon, as opposed to a fad that will pass as the medium matures and patterns of behavior settle toward those more familiar to us from the economy of steel, coal, and temp agencies. Third, is it efficient to have all these people sharing their computers and donating their time and creative effort? Moving through the answers to these questions, it becomes clear that the diverse and complex patterns of behavior observed on the Internet, from Viking ship hobbyists to the developers of the GNU/ Linux operating system, are perfectly consistent with much of our contemporary understanding of human economic behavior. We need to assume no fundamental change in the nature of humanity; ,{[pg 92]}, we need not declare the end of economics as we know it. We merely need to see that the material conditions of production in the networked information economy have changed in ways that increase the relative salience of social sharing and exchange as a modality of economic production. That is, behaviors and motivation patterns familiar to us from social relations generally continue to cohere in their own patterns. What has changed is that now these patterns of behavior have become effective beyond the domains of building social relations of mutual interest and fulfilling our emotional and psychological needs of companionship and mutual recognition. They have come to play a substantial role as modes of motivating, informing, and organizing productive behavior at the very core of the information economy. And it is this increasing role as a modality of information production that ripples through the rest this book. It is the feasibility of producing information, knowledge, and culture through social, rather than market and proprietary relations--through cooperative peer production and coordinate individual action--that creates the opportunities for greater autonomous action, a more critical culture, a more discursively engaged and better informed republic, and perhaps a more equitable global community. +={behavior:motivation to produce+11;diversity:motivation to produce+11;human motivation+11;incentives to produce+11;motivation to produce+11;norms (social):motivation within+4;regulation by social norms:motivation within+4;social relations and norms:motivation within+4} + +2~ MOTIVATION + +Much of economics achieves analytic tractability by adopting a very simple model of human motivation. The basic assumption is that all human motivations can be more or less reduced to something like positive and negative utilities--things people want, and things people want to avoid. These are capable of being summed, and are usually translatable into a universal medium of exchange, like money. Adding more of something people want, like money, to any given interaction will, all things considered, make that interaction more desirable to rational people. While simplistic, this highly tractable model of human motivation has enabled policy prescriptions that have proven far more productive than prescriptions that depended on other models of human motivation--such as assuming that benign administrators will be motivated to serve their people, or that individuals will undertake self-sacrifice for the good of the nation or the commune. + +Of course, this simple model underlying much of contemporary economics is wrong. At least it is wrong as a universal description of human motivation. If you leave a fifty-dollar check on the table at the end of a dinner party at a friend's house, you do not increase the probability that you will ,{[pg 93]}, be invited again. We live our lives in diverse social frames, and money has a complex relationship with these--sometimes it adds to the motivation to participate, sometimes it detracts from it. While this is probably a trivial observation outside of the field of economics, it is quite radical within that analytic framework. The present generation's efforts to formalize and engage it began with the Titmuss-Arrow debate of the early 1970s. In a major work, Richard Titmuss compared the U.S. and British blood supply systems. The former was largely commercial at the time, organized by a mix of private for-profit and nonprofit actors; the latter entirely voluntary and organized by the National Health Service. Titmuss found that the British system had higher-quality blood (as measured by the likelihood of recipients contracting hepatitis from transfusions), less blood waste, and fewer blood shortages at hospitals. Titmuss also attacked the U.S. system as inequitable, arguing that the rich exploited the poor and desperate by buying their blood. He concluded that an altruistic blood procurement system is both more ethical and more efficient than a market system, and recommended that the market be kept out of blood donation to protect the "right to give."~{ Richard M. Titmuss, The Gift Relationship: From Human Blood to Social Policy (New York: Vintage Books, 1971), 94. }~ Titmuss's argument came under immediate attack from economists. Most relevant for our purposes here, Kenneth Arrow agreed that the differences in blood quality indicated that the U.S. blood system was flawed, but rejected Titmuss's central theoretical claim that markets reduce donative activity. Arrow reported the alternative hypothesis held by "economists typically," that if some people respond to exhortation/moral incentives (donors), while others respond to prices and market incentives (sellers), these two groups likely behave independently--neither responds to the other's incentives. Thus, the decision to allow or ban markets should have no effect on donative behavior. Removing a market could, however, remove incentives of the "bad blood" suppliers to sell blood, thereby improving the overall quality of the blood supply. Titmuss had not established his hypothesis analytically, Arrow argued, and its proof or refutation would lie in empirical study.~{ Kenneth J. Arrow, "Gifts and Exchanges," Philosophy & Public Affairs 1 (1972): 343. }~ Theoretical differences aside, the U.S. blood supply system did in fact transition to an allvolunteer system of social donation since the 1970s. In surveys since, blood donors have reported that they "enjoy helping" others, experienced a sense of moral obligation or responsibility, or exhibited characteristics of reciprocators after they or their relatives received blood. +={Arrow, Kenneth;blood donation;Titmuss, Richard} + +A number of scholars, primarily in psychology and economics, have attempted to resolve this question both empirically and theoretically. The most systematic work within economics is that of Swiss economist Bruno Frey ,{[pg 94]}, and various collaborators, building on the work of psychologist Edward Deci.~{ Bruno S. Frey, Not Just for Money: An Economic Theory of Personal Motivation (Brookfield, VT: Edward Elgar, 1997); Bruno S. Frey, Inspiring Economics: Human Motivation in Political Economy (Northampton, MA: Edward Elgar, 2001), 52-72. An excellent survey of this literature is Bruno S. Frey and Reto Jegen, "Motivation Crowding Theory," Journal of Economic Surveys 15, no. 5 (2001): 589. For a crystallization of the underlying psychological theory, see Edward L. Deci and Richard M. Ryan, Intrinsic Motivation and Self-Determination in Human Behavior (New York: Plenum, 1985). }~ A simple statement of this model is that individuals have intrinsic and extrinsic motivations. Extrinsic motivations are imposed on individuals from the outside. They take the form of either offers of money for, or prices imposed on, behavior, or threats of punishment or reward from a manager or a judge for complying with, or failing to comply with, specifically prescribed behavior. Intrinsic motivations are reasons for action that come from within the person, such as pleasure or personal satisfaction. Extrinsic motivations are said to "crowd out" intrinsic motivations because they (a) impair self-determination--that is, people feel pressured by an external force, and therefore feel overjustified in maintaining their intrinsic motivation rather than complying with the will of the source of the extrinsic reward; or (b) impair self-esteem--they cause individuals to feel that their internal motivation is rejected, not valued, and as a result, their self-esteem is diminished, causing them to reduce effort. Intuitively, this model relies on there being a culturally contingent notion of what one "ought" to do if one is a welladjusted human being and member of a decent society. Being offered money to do something you know you "ought" to do, and that self-respecting members of society usually in fact do, implies that the person offering the money believes that you are not a well-adjusted human being or an equally respectable member of society. This causes the person offered the money either to believe the offerer, and thereby lose self-esteem and reduce effort, or to resent him and resist the offer. A similar causal explanation is formalized by Roland Benabou and Jean Tirole, who claim that the person receiving the monetary incentives infers that the person offering the compensation does not trust the offeree to do the right thing, or to do it well of their own accord. The offeree's self-confidence and intrinsic motivation to succeed are reduced to the extent that the offeree believes that the offerer--a manager or parent, for example--is better situated to judge the offeree's abilities.~{ Roland Benabou and Jean Tirole, "Self-Confidence and Social Interactions" (working paper no. 7585, National Bureau of Economic Research, Cambridge, MA, March 2000). }~ +={Frey, Bruno+1;Benabou, Ronald;Deci, Edward;Tirole, Jean;extrinsic motivations+3;intrinsic motivations+6;money:as demotivator+3;price compensation, as demotivator+3;self-determinims, extrinsic motivation and;self-esteem, extrinsic motivation and;filtering by information provider. See blocked access financial reward, as demotivator+3} + +More powerful than the theoretical literature is the substantial empirical literature--including field and laboratory experiments, econometrics, and surveys--that has developed since the mid-1990s to test the hypotheses of this model of human motivation. Across many different settings, researchers have found substantial evidence that, under some circumstances, adding money for an activity previously undertaken without price compensation reduces, rather than increases, the level of activity. The work has covered contexts as diverse as the willingness of employees to work more or to share their experience and knowledge with team members, of communities to ,{[pg 95]}, accept locally undesirable land uses, or of parents to pick up children from day-care centers punctually.~{ Truman F. Bewley, "A Depressed Labor Market as Explained by Participants," American Economic Review (Papers and Proceedings) 85 (1995): 250, provides survey data about managers' beliefs about the effects of incentive contracts; Margit Osterloh and Bruno S. Frey, "Motivation, Knowledge Transfer, and Organizational Form," Organization Science 11 (2000): 538, provides evidence that employees with tacit knowledge communicate it to coworkers more efficiently without extrinsic motivations, with the appropriate social motivations, than when money is offered for "teaching" their knowledge; Bruno S. Frey and Felix Oberholzer-Gee, "The Cost of Price Incentives: An Empirical Analysis of Motivation Crowding-Out," American Economic Review 87 (1997): 746; and Howard Kunreuther and Douslar Easterling, "Are Risk-Benefit Tradeoffs Possible in Siting Hazardous Facilities?" American Economic Review (Papers and Proceedings) 80 (1990): 252-286, describe empirical studies where communities became less willing to accept undesirable public facilities (Not in My Back Yard or NIMBY) when offered compensation, relative to when the arguments made were policy based on the common weal; Uri Gneezy and Aldo Rustichini, "A Fine Is a Price," Journal of Legal Studies 29 (2000): 1, found that introducing a fine for tardy pickup of kindergarten kids increased, rather than decreased, the tardiness of parents, and once the sense of social obligation was lost to the sense that it was "merely" a transaction, the parents continued to be late at pickup, even after the fine was removed. }~ The results of this empirical literature strongly suggest that across various domains some displacement or crowding out can be identified between monetary rewards and nonmonetary motivations. This does not mean that offering monetary incentives does not increase extrinsic rewards--it does. Where extrinsic rewards dominate, this will increase the activity rewarded as usually predicted in economics. However, the effect on intrinsic motivation, at least sometimes, operates in the opposite direction. Where intrinsic motivation is an important factor because pricing and contracting are difficult to achieve, or because the payment that can be offered is relatively low, the aggregate effect may be negative. Persuading experienced employees to communicate their tacit knowledge to the teams they work with is a good example of the type of behavior that is very hard to specify for efficient pricing, and therefore occurs more effectively through social motivations for teamwork than through payments. Negative effects of small payments on participation in work that was otherwise volunteer-based are an example of low payments recruiting relatively few people, but making others shift their efforts elsewhere and thereby reducing, rather than increasing, the total level of volunteering for the job. + +The psychology-based alternative to the "more money for an activity will mean more of the activity" assumption implicit in most of these new economic models is complemented by a sociology-based alternative. This comes from one branch of the social capital literature--the branch that relates back to Mark Granovetter's 1974 book, Getting a Job, and was initiated as a crossover from sociology to economics by James Coleman.~{ James S. Coleman, "Social Capital in the Creation of Human Capital," American Journal of Sociology 94, supplement (1988): S95, S108. For important early contributions to this literature, see Mark Granovetter, "The Strength of Weak Ties," American Journal of Sociology 78 (1973): 1360; Mark Granovetter, Getting a Job: A Study of Contacts and Careers (Cambridge, MA: Harvard University Press, 1974); Yoram BenPorath, "The F-Connection: Families, Friends and Firms and the Organization of Exchange," Population and Development Review 6 (1980): 1. }~ This line of literature rests on the claim that, as Nan Lin puts it, "there are two ultimate (or primitive) rewards for human beings in a social structure: economic standing and social standing."~{ Nan Lin, Social Capital: A Theory of Social Structure and Action (New York: Cambridge University Press, 2001), 150-151. }~ These rewards are understood as instrumental and, in this regard, are highly amenable to economics. Both economic and social aspects represent "standing"--that is, a relational measure expressed in terms of one's capacity to mobilize resources. Some resources can be mobilized by money. Social relations can mobilize others. For a wide range of reasons-- institutional, cultural, and possibly technological--some resources are more readily capable of being mobilized by social relations than by money. If you want to get your nephew a job at a law firm in the United States today, a friendly relationship with the firm's hiring partner is more likely to help than passing on an envelope full of cash. If this theory of social capital is correct, then sometimes you should be willing to trade off financial rewards for social ,{[pg 96]}, capital. Critically, the two are not fungible or cumulative. A hiring partner paid in an economy where monetary bribes for job interviews are standard does not acquire a social obligation. That same hiring partner in that same culture, who is also a friend and therefore forgoes payment, however, probably does acquire a social obligation, tenable for a similar social situation in the future. The magnitude of the social debt, however, may now be smaller. It is likely measured by the amount of money saved from not having to pay the price, not by the value of getting the nephew a job, as it would likely be in an economy where jobs cannot be had for bribes. There are things and behaviors, then, that simply cannot be commodified for market exchange, like friendship. Any effort to mix the two, to pay for one's friendship, would render it something completely different--perhaps a psychoanalysis session in our culture. There are things that, even if commodified, can still be used for social exchange, but the meaning of the social exchange would be diminished. One thinks of borrowing eggs from a neighbor, or lending a hand to friends who are moving their furniture to a new apartment. And there are things that, even when commodified, continue to be available for social exchange with its full force. Consider gamete donations as an example in contemporary American culture. It is important to see, though, that there is nothing intrinsic about any given "thing" or behavior that makes it fall into one or another of these categories. The categories are culturally contingent and cross-culturally diverse. What matters for our purposes here, though, is only the realization that for any given culture, there will be some acts that a person would prefer to perform not for money, but for social standing, recognition, and probably, ultimately, instrumental value obtainable only if that person has performed the action through a social, rather than a market, transaction. +={Coleman, James;Granovetter, Mark;Lin, Nan;social capital;culture:as motivational context+2;human motivation:cultural context of+2;incentives to produce:cultural context+2;motivation to produce:cultural context+2} + +It is not necessary to pin down precisely the correct or most complete theory of motivation, or the full extent and dimensions of crowding out nonmarket rewards by the introduction or use of market rewards. All that is required to outline the framework for analysis is recognition that there is some form of social and psychological motivation that is neither fungible with money nor simply cumulative with it. Transacting within the price system may either increase or decrease the social-psychological rewards (be they intrinsic or extrinsic, functional or symbolic). The intuition is simple. As I have already said, leaving a fifty-dollar check on the table after one has finished a pleasant dinner at a friend's house would not increase the host's ,{[pg 97]}, social and psychological gains from the evening. Most likely, it would diminish them sufficiently that one would never again be invited. A bottle of wine or a bouquet of flowers would, to the contrary, improve the social gains. And if dinner is not intuitively obvious, think of sex. The point is simple. Money-oriented motivations are different from socially oriented motivations. Sometimes they align. Sometimes they collide. Which of the two will be the case is historically and culturally contingent. The presence of money in sports or entertainment reduced the social psychological gains from performance in late-nineteenth-century Victorian England, at least for members of the middle and upper classes. This is reflected in the long-standing insistence on the "amateur" status of the Olympics, or the status of "actors" in the Victorian society. This has changed dramatically more than a century later, where athletes' and popular entertainers' social standing is practically measured in the millions of dollars their performances can command. + +The relative relationships of money and social-psychological rewards are, then, dependent on culture and context. Similar actions may have different meanings in different social or cultural contexts. Consider three lawyers contemplating whether to write a paper presenting their opinion--one is a practicing attorney, the second is a judge, and the third is an academic. For the first, money and honor are often, though not always, positively correlated. Being able to command a very high hourly fee for writing the requested paper is a mode of expressing one's standing in the profession, as well as a means of putting caviar on the table. Yet, there are modes of acquiring esteem--like writing the paper as a report for a bar committee-- that are not improved by the presence of money, and are in fact undermined by it. This latter effect is sharpest for the judge. If a judge is approached with an offer of money for writing an opinion, not only is this not a mark of honor, it is a subversion of the social role and would render corrupt the writing of the opinion. For the judge, the intrinsic "rewards" for writing the opinion when matched by a payment for the product would be guilt and shame, and the offer therefore an expression of disrespect. Finally, if the same paper is requested of the academic, the presence of money is located somewhere in between the judge and the practitioner. To a high degree, like the judge, the academic who writes for money is rendered suspect in her community of scholarship. A paper clearly funded by a party, whose results support the party's regulatory or litigation position, is practically worthless as an academic work. In a mirror image of the practitioner, however, there ,{[pg 98]}, are some forms of money that add to and reinforce an academic's social psychological rewards--peer-reviewed grants and prizes most prominent among them. + +Moreover, individuals are not monolithic agents. While it is possible to posit idealized avaricious money-grubbers, altruistic saints, or social climbers, the reality of most people is a composite of these all, and one that is not like any of them. Clearly, some people are more focused on making money, and others are more generous; some more driven by social standing and esteem, others by a psychological sense of well-being. The for-profit and nonprofit systems probably draw people with different tastes for these desiderata. Academic science and commercial science also probably draw scientists with similar training but different tastes for types of rewards. However, welladjusted, healthy individuals are rarely monolithic in their requirements. We would normally think of someone who chose to ignore and betray friends and family to obtain either more money or greater social recognition as a fetishist of some form or another. We spend some of our time making money, some of our time enjoying it hedonically; some of our time being with and helping family, friends, and neighbors; some of our time creatively expressing ourselves, exploring who we are and what we would like to become. Some of us, because of economic conditions we occupy, or because of our tastes, spend very large amounts of time trying to make money-- whether to become rich or, more commonly, just to make ends meet. Others spend more time volunteering, chatting, or writing. + +For all of us, there comes a time on any given day, week, and month, every year and in different degrees over our lifetimes, when we choose to act in some way that is oriented toward fulfilling our social and psychological needs, not our market-exchangeable needs. It is that part of our lives and our motivational structure that social production taps, and on which it thrives. There is nothing mysterious about this. It is evident to any of us who rush home to our family or to a restaurant or bar with friends at the end of a workday, rather than staying on for another hour of overtime or to increase our billable hours; or at least regret it when we cannot. It is evident to any of us who has ever brought a cup of tea to a sick friend or relative, or received one; to anyone who has lent a hand moving a friend's belongings; played a game; told a joke, or enjoyed one told by a friend. What needs to be understood now, however, is under what conditions these many and diverse social actions can turn into an important modality of economic production. When can all these acts, distinct from our desire for ,{[pg 99]}, money and motivated by social and psychological needs, be mobilized, directed, and made effective in ways that we recognize as economically valuable? + +2~ SOCIAL PRODUCTION: FEASIBILITY CONDITIONS AND ORGANIZATIONAL FORM +={capacity:human communication+13;communication:feasibility conditions for social production+13;cost:feasibility conditions for social production+13;feasibility conditions or social production+13;human communicative capacity:feasibility conditions for social production+13;information production:feasibility conditions for social production+13;nonmarket information producers:conditions for production+13;nonmarket production, economics of:feasibility conditions+13;peer production:feasibility conditions for social production+13;production of information:feasibility conditions for social production+13} + +The core technologically contingent fact that enables social relations to become a salient modality of production in the networked information economy is that all the inputs necessary to effective productive activity are under the control of individual users. Human creativity, wisdom, and life experience are all possessed uniquely by individuals. The computer processors, data storage devices, and communications capacity necessary to make new meaningful conversational moves from the existing universe of information and stimuli, and to render and communicate them to others near and far are also under the control of these same individual users--at least in the advanced economies and in some portions of the population of developing economies. This does not mean that all the physical capital necessary to process, store, and communicate information is under individual user control. That is not necessary. It is, rather, that the majority of individuals in these societies have the threshold level of material capacity required to explore the information environment they occupy, to take from it, and to make their own contributions to it. +={capabilities of individuals:as physical capital+1;capital for production:control of+1;constraints of information production, monetary:control of+1;individual capabilities and action:as physical capital+1;information production capital:control of+1;monetary constraints on information production:control of+1;physical capital for production:control of+1;production capital:control of+1} + +There is nothing about computation or communication that naturally or necessarily enables this fact. It is a felicitous happenstance of the fabrication technology of computing machines in the last quarter of the twentieth century, and, it seems, in the reasonably foreseeable future. It is cheaper to build freestanding computers that enable their owners to use a wide and dynamically changing range of information applications, and that are cheap enough that each machine is owned by an individual user or household, than it is to build massive supercomputers with incredibly high-speed communications to yet cheaper simple terminals, and to sell information services to individuals on an on-demand or standardized package model. Natural or contingent, it is nevertheless a fact of the industrial base of the networked information economy that individual users--susceptible as they are to acting on diverse motivations, in diverse relationships, some market-based, some social--possess and control the physical capital necessary to make effective the human capacities they uniquely and individually possess. ,{[pg 100]}, + +Now, having the core inputs of information production ubiquitously distributed in society is a core enabling fact, but it alone cannot assure that social production will become economically significant. Children and teenagers, retirees, and very rich individuals can spend most of their lives socializing or volunteering; most other people cannot. While creative capacity and judgment are universally distributed in a population, available time and attention are not, and human creative capacity cannot be fully dedicated to nonmarket, nonproprietary production all the time. Someone needs to work for money, at least some of the time, to pay the rent and put food on the table. Personal computers too are only used for earnings-generating activities some of the time. In both these resources, there remain large quantities of excess capacity--time and interest in human beings; processing, storage, and communications capacity in computers--available to be used for activities whose rewards are not monetary or monetizable, directly or indirectly. + +For this excess capacity to be harnessed and become effective, the information production process must effectively integrate widely dispersed contributions, from many individual human beings and machines. These contributions are diverse in their quality, quantity, and focus, in their timing and geographic location. The great success of the Internet generally, and peer-production processes in particular, has been the adoption of technical and organizational architectures that have allowed them to pool such diverse efforts effectively. The core characteristics underlying the success of these enterprises are their modularity and their capacity to integrate many finegrained contributions. + +"Modularity" is a property of a project that describes the extent to which it can be broken down into smaller components, or modules, that can be independently produced before they are assembled into a whole. If modules are independent, individual contributors can choose what and when to contribute independently of each other. This maximizes their autonomy and flexibility to define the nature, extent, and timing of their participation in the project. Breaking up the maps of Mars involved in the clickworkers project (described in chapter 3) and rendering them in small segments with a simple marking tool is a way of modularizing the task of mapping craters. In the SETI@home project (see chapter 3), the task of scanning radio astronomy signals is broken down into millions of little computations as a way of modularizing the calculations involved. + +"Granularity" refers to the size of the modules, in terms of the time and effort that an individual must invest in producing them. The five minutes ,{[pg 101]}, required for moderating a comment on Slashdot, or for metamoderating a moderator, is more fine-grained than the hours necessary to participate in writing a bug fix in an open-source project. More people can participate in the former than in the latter, independent of the differences in the knowledge required for participation. The number of people who can, in principle, participate in a project is therefore inversely related to the size of the smallest-scale contribution necessary to produce a usable module. The granularity of the modules therefore sets the smallest possible individual investment necessary to participate in a project. If this investment is sufficiently low, then "incentives" for producing that component of a modular project can be of trivial magnitude. Most importantly for our purposes of understanding the rising role of nonmarket production, the time can be drawn from the excess time we normally dedicate to having fun and participating in social interactions. If the finest-grained contributions are relatively large and would require a large investment of time and effort, the universe of potential contributors decreases. A successful large-scale peer-production project must therefore have a predominate portion of its modules be relatively fine-grained. +={diversity:granularity of participation+3;granularity+3;human motivation:granularity of participation and+3;incentives to produce:granularity of participation and+3;motivation to produce+3;granularity of participation and+3;modularity+3;organization structure+7:granularity+3|modularity+3;structure of organizations+7:granularity+3|modularity+3;structured production+7:granularity+3|modularity+3;planned modularization+3} + +Perhaps the clearest example of how large-grained modules can make projects falter is the condition, as of the middle of 2005, of efforts to peer produce open textbooks. The largest such effort is Wikibooks, a site associated with /{Wikipedia}/, which has not taken off as did its famous parent project. Very few texts there have reached maturity to the extent that they could be usable as a partial textbook, and those few that have were largely written by one individual with minor contributions by others. Similarly, an ambitious initiative launched in California in 2004 still had not gone far beyond an impassioned plea for help by mid-2005. The project that seems most successful as of 2005 was a South African project, Free High School Science Texts (FHSST), founded by a physics graduate student, Mark Horner. As of this writing, that three-year-old project had more or less completed a physics text, and was about halfway through chemistry and mathematics textbooks. The whole FHSST project involves a substantially more managed approach than is common in peer-production efforts, with a core group of dedicated graduate student administrators recruiting contributors, assigning tasks, and integrating the contributions. Horner suggests that the basic limiting factor is that in order to write a high school textbook, the output must comply with state-imposed guidelines for content and form. To achieve these requirements, the various modules must cohere to a degree ,{[pg 102]}, much larger than necessary in a project like /{Wikipedia}/, which can endure high diversity in style and development without losing its utility. As a result, the individual contributions have been kept at a high level of abstraction-- an idea or principle explained at a time. The minimal time commitment required of each contributor is therefore large, and has led many of those who volunteered initially to not complete their contributions. In this case, the guideline requirements constrained the project's granularity, and thereby impeded its ability to grow and capture the necessary thousands of smallgrained contributions. With orders of magnitude fewer contributors, each must be much more highly motivated and available than is necessary in /{Wikipedia}/, Slashdot, and similar successful projects. +={FHSST (Free High School Science Texts);Free High School Science Texts (FHSST);Horner, Mark;Wikibooks project} + +It is not necessary, however, that each and every chunk or module be fine grained. Free software projects in particular have shown us that successful peer-production projects may also be structured, technically and culturally, in ways that make it possible for different individuals to contribute vastly different levels of effort commensurate with their ability, motivation, and availability. The large free software projects might integrate thousands of people who are acting primarily for social psychological reasons--because it is fun or cool; a few hundred young programmers aiming to make a name for themselves so as to become employable; and dozens of programmers who are paid to write free software by firms that follow one of the nonproprietary strategies described in chapter 2. IBM and Red Hat are the quintessential examples of firms that contribute paid employee time to peer-production projects in this form. This form of link between a commercial firm and a peer production community is by no means necessary for a peer-production process to succeed; it does, however, provide one constructive interface between market- and nonmarket-motivated behavior, through which actions on the two types of motivation can reinforce, rather than undermine, each other. +={free software:project modularity and granularity;open-source software:project modularity and granularity;software, open-source:project modularity and granularity} + +The characteristics of planned modularization of a problem are highly visible and explicit in some peer-production projects--the distributed computing projects like SETI@home are particularly good examples of this. However, if we were to step back and look at the entire phenomenon of Web-based publication from a bird's-eye view, we would see that the architecture of the World Wide Web, in particular the persistence of personal Web pages and blogs and their self-contained, technical independence of each other, give the Web as a whole the characteristics of modularity and variable but fine-grained granularity. Imagine that you were trying to evaluate ,{[pg 103]}, how, if at all, the Web is performing the task of media watchdog. Consider one example, which I return to in chapter 7: The Memory Hole, a Web site created and maintained by Russ Kick, a freelance author and editor. Kick spent some number of hours preparing and filing a Freedom of Information Act request with the Defense Department, seeking photographs of coffins of U.S. military personnel killed in Iraq. He was able to do so over some period, not having to rely on "getting the scoop" to earn his dinner. At the same time, tens of thousands of other individual Web publishers and bloggers were similarly spending their time hunting down stories that moved them, or that they happened to stumble across in their own daily lives. When Kick eventually got the photographs, he could upload them onto his Web site, where they were immediately available for anyone to see. Because each contribution like Kick's can be independently created and stored, because no single permission point or failure point is present in the architecture of the Web--it is merely a way of conveniently labeling documents stored independently by many people who are connected to the Internet and use HTML (hypertext markup language) and HTTP (hypertext transfer protocol)--as an "information service," it is highly modular and diversely granular. Each independent contribution comprises as large or small an investment as its owner-operator chooses to make. Together, they form a vast almanac, trivia trove, and news and commentary facility, to name but a few, produced by millions of people at their leisure--whenever they can or want to, about whatever they want. +={autonomy:independence of Web sites;democratic societies:independence of Web sites;independence of Web sites;individual autonomy:independence of Web sites;Kick, Russ;The Memory Hole} + +The independence of Web sites is what marks their major difference from more organized peer-production processes, where contributions are marked not by their independence but by their interdependence. The Web as a whole requires no formal structure of cooperation. As an "information good" or medium, it emerges as a pattern out of coordinate coexistence of millions of entirely independent acts. All it requires is a pattern recognition utility superimposed over the outputs of these acts--a search engine or directory. Peer-production processes, to the contrary, do generally require some substantive cooperation among users. A single rating of an individual comment on Slashdot does not by itself moderate the comment up or down, neither does an individual marking of a crater. Spotting a bug in free software, proposing a fix, reviewing the proposed fix, and integrating it into the software are interdependent acts that require a level of cooperation. This necessity for cooperation requires peer-production processes to adopt more engaged strategies for assuring that everyone who participates is doing so in ,{[pg 104]}, good faith, competently, and in ways that do not undermine the whole, and weeding out those would-be participants who are not. +={Slashdot+1;accreditation:Slashdot+1;filtering:Slashdot+1;relevance filtering:Slashdot+1;peer production:maintenance of cooperation+1;structured production:maintenance of cooperation+1} + +Cooperation in peer-production processes is usually maintained by some combination of technical architecture, social norms, legal rules, and a technically backed hierarchy that is validated by social norms. /{Wikipedia}/ is the strongest example of a discourse-centric model of cooperation based on social norms. However, even /{Wikipedia}/ includes, ultimately, a small number of people with system administrator privileges who can eliminate accounts or block users in the event that someone is being genuinely obstructionist. This technical fallback, however, appears only after substantial play has been given to self-policing by participants, and to informal and quasi-formal communitybased dispute resolution mechanisms. Slashdot, by contrast, provides a strong model of a sophisticated technical system intended to assure that no one can "defect" from the cooperative enterprise of commenting and moderating comments. It limits behavior enabled by the system to avoid destructive behavior before it happens, rather than policing it after the fact. The Slash code does this by technically limiting the power any given person has to moderate anyone else up or down, and by making every moderator the subject of a peer review system whose judgments are enforced technically-- that is, when any given user is described by a sufficiently large number of other users as unfair, that user automatically loses the technical ability to moderate the comments of others. The system itself is a free software project, licensed under the GPL (General Public License)--which is itself the quintessential example of how law is used to prevent some types of defection from the common enterprise of peer production of software. The particular type of defection that the GPL protects against is appropriation of the joint product by any single individual or firm, the risk of which would make it less attractive for anyone to contribute to the project to begin with. The GPL assures that, as a legal matter, no one who contributes to a free software project need worry that some other contributor will take the project and make it exclusively their own. The ultimate quality judgments regarding what is incorporated into the "formal" releases of free software projects provide the clearest example of the extent to which a meritocratic hierarchy can be used to integrate diverse contributions into a finished single product. In the case of the Linux kernel development project (see chapter 3), it was always within the power of Linus Torvalds, who initiated the project, to decide which contributions should be included in a new release, and which should not. But it is a funny sort of hierarchy, whose quirkiness Steve Weber ,{[pg 105]}, well explicates.~{ Steve Weber, The Success of Open Source (Cambridge, MA: Harvard University Press, 2004). }~ Torvalds's authority is persuasive, not legal or technical, and certainly not determinative. He can do nothing except persuade others to prevent them from developing anything they want and add it to their kernel, or to distribute that alternative version of the kernel. There is nothing he can do to prevent the entire community of users, or some subsection of it, from rejecting his judgment about what ought to be included in the kernel. Anyone is legally free to do as they please. So these projects are based on a hierarchy of meritocratic respect, on social norms, and, to a great extent, on the mutual recognition by most players in this game that it is to everybody's advantage to have someone overlay a peer review system with some leadership. +={Wikipedia project;Torvalds, Linus;Weber, Steve;General Public License (GPL):See also free software;GPL (General Public License):See Also free software;licensing:GPL (General Public License)} + +In combination then, three characteristics make possible the emergence of information production that is not based on exclusive proprietary claims, not aimed toward sales in a market for either motivation or information, and not organized around property and contract claims to form firms or market exchanges. First, the physical machinery necessary to participate in information and cultural production is almost universally distributed in the population of the advanced economies. Certainly, personal computers as capital goods are under the control of numbers of individuals that are orders of magnitude larger than the number of parties controlling the use of massproduction-capable printing presses, broadcast transmitters, satellites, or cable systems, record manufacturing and distribution chains, and film studios and distribution systems. This means that the physical machinery can be put in service and deployed in response to any one of the diverse motivations individual human beings experience. They need not be deployed in order to maximize returns on the financial capital, because financial capital need not be mobilized to acquire and put in service any of the large capital goods typical of the industrial information economy. Second, the primary raw materials in the information economy, unlike the industrial economy, are public goods--existing information, knowledge, and culture. Their actual marginal social cost is zero. Unless regulatory policy makes them purposefully expensive in order to sustain the proprietary business models, acquiring raw materials also requires no financial capital outlay. Again, this means that these raw materials can be deployed for any human motivation. They need not maximize financial returns. Third, the technical architectures, organizational models, and social dynamics of information production and exchange on the Internet have developed so that they allow us to structure the solution to problems--in particular to information production problems--in ways ,{[pg 106]}, that are highly modular. This allows many diversely motivated people to act for a wide range of reasons that, in combination, cohere into new useful information, knowledge, and cultural goods. These architectures and organizational models allow both independent creation that coexists and coheres into usable patterns, and interdependent cooperative enterprises in the form of peer-production processes. +={computers;hardware;personal computers;physical machinery and computers} + +Together, these three characteristics suggest that the patterns of social production of information that we are observing in the digitally networked environment are not a fad. They are, rather, a sustainable pattern of human production given the characteristics of the networked information economy. The diversity of human motivation is nothing new. We now have a substantial literature documenting its importance in free and open-source software development projects, from Josh Lerner and Jean Tirole, Rishab Ghosh, Eric Von Hippel and Karim Lakhani, and others. Neither is the public goods nature of information new. What is new are the technological conditions that allow these facts to provide the ingredients of a much larger role in the networked information economy for nonmarket, nonproprietary production to emerge. As long as capitalization and ownership of the physical capital base of this economy remain widely distributed and as long as regulatory policy does not make information inputs artificially expensive, individuals will be able to deploy their own creativity, wisdom, conversational capacities, and connected computers, both independently and in loose interdependent cooperation with others, to create a substantial portion of the information environment we occupy. Moreover, we will be able to do so for whatever reason we choose--through markets or firms to feed and clothe ourselves, or through social relations and open communication with others, to give our lives meaning and context. +={Lerner, Josh;Tirole, Jean;Ghosh, Rishab;Lakhani, Karim;Tirole, Jean,von Hippel, Eric} + +2~ TRANSACTION COSTS AND EFFICIENCY +={commercial model of communication:transaction costs+16;economics of nonmarket production:transaction costs+16;efficiency of information regulation+16;industrial model of communication:transaction costs+16;inefficiency of information regulation+16;information production, market-based:transaction costs+16;institutional ecology of digital environment:transaction costs+16;market-based information producers:transaction costs+16;nonmarket production, economics of:transaction costs+16;norms (social):transaction costs+16;peer production:sustainability of+16;proprietary rights, inefficiency of+16;regulating information, efficiency of+16;regulation by social norms:transaction costs+16;social relations and norms:transaction costs+16;strategies for information production:transaction costs+16;sustainability of peer production+16;traditional model of communication:transaction costs+16;transaction costs+16} + +For purposes of analyzing the political values that are the concern of most of this book, all that is necessary is that we accept that peer production in particular, and nonmarket information production and exchange in general, are sustainable in the networked information economy. Most of the remainder of the book seeks to evaluate why, and to what extent, the presence of a substantial nonmarket, commons-based sector in the information production system is desirable from the perspective of various aspects of freedom and justice. Whether this sector is "efficient" within the meaning of the ,{[pg 107]}, word in welfare economics is beside the point to most of these considerations. Even a strong commitment to a pragmatic political theory, one that accepts and incorporates into its consideration the limits imposed by material and economic reality, need not aim for "efficient" policy in the welfare sense. It is sufficient that the policy is economically and socially sustainable on its own bottom--in other words, that it does not require constant subsidization at the expense of some other area excluded from the analysis. It is nonetheless worthwhile spending a few pages explaining why, and under what conditions, commons-based peer production, and social production more generally, are not only sustainable but actually efficient ways of organizing information production. + +The efficient allocation of two scarce resources and one public good are at stake in the choice between social production--whether it is peer production or independent nonmarket production--and market-based production. Because most of the outputs of these processes are nonrival goods-- information, knowledge, and culture--the fact that the social production system releases them freely, without extracting a price for using them, means that it would, all other things being equal, be more efficient for information to be produced on a nonproprietary social model, rather than on a proprietary market model. Indeed, all other things need not even be equal for this to hold. It is enough that the net value of the information produced by commons-based social production processes and released freely for anyone to use as they please is no less than the total value of information produced through property-based systems minus the deadweight loss caused by the above-marginal-cost pricing practices that are the intended result of the intellectual property system. + +The two scarce resources are: first, human creativity, time, and attention; and second, the computation and communications resources used in information production and exchange. In both cases, the primary reason to choose among proprietary and nonproprietary strategies, between marketbased systems--be they direct market exchange or firm-based hierarchical production--and social systems, are the comparative transaction costs of each, and the extent to which these transaction costs either outweigh the benefits of working through each system, or cause the system to distort the information it generates so as to systematically misallocate resources. +={market transactions+3} + +The first thing to recognize is that markets, firms, and social relations are three distinct transactional frameworks. Imagine that I am sitting in a room and need paper for my printer. I could (a) order paper from a store; (b) call ,{[pg 108]}, the storeroom, if I am in a firm or organization that has one, and ask the clerk to deliver the paper I need; or (c) walk over to a neighbor and borrow some paper. Choice (a) describes the market transactional framework. The store knows I need paper immediately because I am willing to pay for it now. Alternative (b) is an example of the firm as a transactional framework. The paper is in the storeroom because someone in the organization planned that someone else would need paper today, with some probability, and ordered enough to fill that expected need. The clerk in the storeroom gives it to me because that is his job; again, defined by someone who planned to have someone available to deliver paper when someone else in the proper channels of authority says that she needs it. Comparing and improving the efficiency of (a) and (b), respectively, has been a central project in transaction-costs organization theory. We might compare, for example, the costs of taking my call, verifying the credit card information, and sending a delivery truck for my one batch of paper, to the costs of someone planning for the average needs of a group of people like me, who occasionally run out of paper, and stocking a storeroom with enough paper and a clerk to fill our needs in a timely manner. However, notice that (c) is also an alternative transactional framework. I could, rather than incurring the costs of transacting through the market with the local store or of building a firm with sufficient lines of authority to stock and manage the storeroom, pop over to my neighbor and ask for some paper. This would make sense even within an existing firm when, for example, I need two or three pages immediately and do not want to wait for the storeroom clerk to do his rounds, or more generally, if I am working at home and the costs of creating "a firm," stocking a storeroom, and paying a clerk are too high for my neighbors and me. Instead, we develop a set of neighborly social relations, rather than a firm-based organization, to deal with shortfalls during periods when it would be too costly to assure a steady flow of paper from the market--for example, late in the evening, on a weekend, or in a sparsely populated area. + +The point is not, of course, to reduce all social relations and human decency to a transaction-costs theory. Too many such straight planks have already been cut from the crooked timber of humanity to make that exercise useful or enlightening. The point is that most of economics internally has been ignoring the social transactional framework as an alternative whose relative efficiency can be accounted for and considered in much the same way as the relative cost advantages of simple markets when compared to the hierarchical organizations that typify much of our economic activity--firms. ,{[pg 109]}, + +A market transaction, in order to be efficient, must be clearly demarcated as to what it includes, so that it can be priced efficiently. That price must then be paid in equally crisply delineated currency. Even if a transaction initially may be declared to involve sale of "an amount reasonably required to produce the required output," for a "customary" price, at some point what was provided and what is owed must be crystallized and fixed for a formal exchange. The crispness is a functional requirement of the price system. It derives from the precision and formality of the medium of exchange--currency--and the ambition to provide refined representations of the comparative value of marginal decisions through denomination in an exchange medium that represents these incremental value differences. Similarly, managerial hierarchies require a crisp definition of who should be doing what, when, and how, in order to permit the planning and coordination process to be effective. +={crispness of currency exchange+5;cost:crispness of+5;culture:social exchange, crispness of+5;money:crispness of currency exchange+5;creativity, value of+5;defining price+5;information production inputs:pricing+5;inputs to production:pricing+5;medium of exchange+5;pricing+5;production inputs:pricing+5;specificity of price+5;standardizing creativity+5} + +Social exchange, on the other hand, does not require the same degree of crispness at the margin. As Maurice Godelier put it in /{The Enigma of the Gift}/, "the mark of the gift between close friends and relatives . . . is not the absence of obligations, it is the absence of `calculation.' "~{ Maurice Godelier, The Enigma of the Gift, trans. Nora Scott (Chicago: University of Chicago Press, 1999), 5. }~ There are, obviously, elaborate and formally ritualistic systems of social exchange, in both ancient societies and modern. There are common-property regimes that monitor and record calls on the common pool very crisply. However, in many of the common-property regimes, one finds mechanisms of bounding or fairly allocating access to the common pool that more coarsely delineate the entitlements, behaviors, and consequences than is necessary for a proprietary system. In modern market society, where we have money as a formal medium of precise exchange, and where social relations are more fluid than in traditional societies, social exchange certainly occurs as a fuzzier medium. Across many cultures, generosity is understood as imposing a debt of obligation; but none of the precise amount of value given, the precise nature of the debt to be repaid, or the date of repayment need necessarily be specified. Actions enter into a cloud of goodwill or membership, out of which each agent can understand him- or herself as being entitled to a certain flow of dependencies or benefits in exchange for continued cooperative behavior. This may be an ongoing relationship between two people, a small group like a family or group of friends, and up to a general level of generosity among strangers that makes for a decent society. The point is that social exchange does not require defining, for example, "I will lend you my car and help you move these five boxes on Monday, and in exchange you will feed my ,{[pg 110]}, fish next July," in the same way that the following would: "I will move five boxes on Tuesday for $100, six boxes for $120." This does not mean that social systems are cost free--far from it. They require tremendous investment, acculturation, and maintenance. This is true in this case every bit as much as it is true for markets or states. Once functional, however, social exchanges require less information crispness at the margin. +={commons:crispness of social exchange;Godelier, Maurice} + +Both social and market exchange systems require large fixed costs--the setting up of legal institutions and enforcement systems for markets, and creating social networks, norms, and institutions for the social exchange. Once these initial costs have been invested, however, market transactions systematically require a greater degree of precise information about the content of actions, goods, and obligations, and more precision of monitoring and enforcement on a per-transaction basis than do social exchange systems. +={capital for production:fixed and initial costs;constraints of information production, monetary:fixed and initial costs;information production capital:fixed and initial costs;information sharing: initial costs;monetary constraints on information production:fixed and initial costs;physical capital for production:fixed and initial costs;production capital:fixed and initial costs;fixed costs} + +This difference between markets and hierarchical organizations, on the one hand, and peer-production processes based on social relations, on the other, is particularly acute in the context of human creative labor--one of the central scarce resources that these systems must allocate in the networked information economy. The levels and focus of individual effort are notoriously hard to specify for pricing or managerial commands, considering all aspects of individual effort and ability--talent, motivation, workload, and focus--as they change in small increments over the span of an individual's full day, let alone months. What we see instead is codification of effort types--a garbage collector, a law professor--that are priced more or less finely. However, we only need to look at the relative homogeneity of law firm starting salaries as compared to the high variability of individual ability and motivation levels of graduating law students to realize that pricing of individual effort can be quite crude. Similarly, these attributes are also difficult to monitor and verify over time, though perhaps not quite as difficult as predicting them ex ante. Pricing therefore continues to be a function of relatively crude information about the actual variability among people. More importantly, as aspects of performance that are harder to fully specify in advance or monitor--like creativity over time given the occurrence of new opportunities to be creative, or implicit know-how--become a more significant aspect of what is valuable about an individual's contribution, market mechanisms become more and more costly to maintain efficiently, and, as a practical matter, simply lose a lot of information. +={communication:pricing;cost:pricing;human communicative capacity:pricing;capacity:human communication} + +People have different innate capabilities; personal, social, and educational histories; emotional frameworks; and ongoing lived experiences, which make ,{[pg 111]}, for immensely diverse associations with, idiosyncratic insights into, and divergent utilization of existing information and cultural inputs at different times and in different contexts. Human creativity is therefore very difficult to standardize and specify in the contracts necessary for either market-cleared or hierarchically organized production. As the weight of human intellectual effort increases in the overall mix of inputs into a given production process, an organization model that does not require contractual specification of the individual effort required to participate in a collective enterprise, and which allows individuals to self-identify for tasks, will be better at gathering and utilizing information about who should be doing what than a system that does require such specification. Some firms try to solve this problem by utilizing market- and social-relations-oriented hybrids, like incentive compensation schemes and employee-of-the-month-type social motivational frameworks. These may be able to improve on firm-only or market-only approaches. It is unclear, though, how well they can overcome the core difficulty: that is, that both markets and firm hierarchies require significant specification of the object of organization and pricing--in this case, human intellectual input. The point here is qualitative. It is not only, or even primarily, that more people can participate in production in a commons-based effort. It is that the widely distributed model of information production will better identify the best person to produce a specific component of a project, considering all abilities and availability to work on the specific module within a specific time frame. With enough uncertainty as to the value of various productive activities, and enough variability in the quality of both information inputs and human creative talent vis-a-vis any set of production ` opportunities, freedom of action for individuals coupled with continuous communications among the pool of potential producers and consumers can generate better information about the most valuable productive actions, and the best human inputs available to engage in these actions at a given time. Markets and firm incentive schemes are aimed at producing precisely this form of self-identification. However, the rigidities associated with collecting and comprehending bids from individuals through these systems (that is, transaction costs) limit the efficacy of self-identification by comparison to a system in which, once an individual self-identifies for a task, he or she can then undertake it without permission, contract, or instruction from another. The emergence of networked organizations (described and analyzed in the work of Charles Sabel and others) suggests that firms are in fact trying to overcome these limitations by developing parallels to the freedom to learn, ,{[pg 112]}, innovate, and act on these innovations that is intrinsic to peer-production processes by loosening the managerial bonds, locating more of the conception and execution of problem solving away from the managerial core of the firm, and implementing these through social, as well as monetary, motivations. However, the need to assure that the value created is captured within the organization limits the extent to which these strategies can be implemented within a single enterprise, as opposed to their implementation in an open process of social production. This effect, in turn, is in some sectors attenuated through the use of what Walter Powell and others have described as learning networks. Engineers and scientists often create frameworks that allow them to step out of their organizational affiliations, through conferences or workshops. By reproducing the social production characteristics of academic exchange, they overcome some of the information loss caused by the boundary of the firm. While these organizational strategies attenuate the problem, they also underscore the degree to which it is widespread and understood by organizations as such. The fact that the direction of the solutions business organizations choose tends to shift elements of the production process away from market- or firm-based models and toward networked social production models is revealing. Now, the self-identification that is central to the relative information efficiency of peer production is not always perfect. Some mechanisms used by firms and markets to codify effort levels and abilities--like formal credentials--are the result of experience with substantial errors or misstatements by individuals of their capacities. To succeed, therefore, peer-production systems must also incorporate mechanisms for smoothing out incorrect self-assessments--as peer review does in traditional academic research or in the major sites like /{Wikipedia}/ or Slashdot, or as redundancy and statistical averaging do in the case of NASA clickworkers. The prevalence of misperceptions that individual contributors have about their own ability and the cost of eliminating such errors will be part of the transaction costs associated with this form of organization. They parallel quality control problems faced by firms and markets. +={Sabel, Charles;capacity:transaction costs+5;communication:transaction costs+5;computational capacity:transaction costs+5;data storage capacity:transaction costs+5;information sharing:transaction costs+5;storage capacity:transaction costs+26;communities:critical culture and self-reflection;critical culture and self-reflection:self-identification as transaction cost;culture:criticality of (self-reflection);learning networks;self-organization:self-identification as transaction cost;Powell, Walter} + +The lack of crisp specification of who is giving what to whom, and in exchange for what, also bears on the comparative transaction costs associated with the allocation of the second major type of scarce resource in the networked information economy: the physical resources that make up the networked information environment--communications, computation, and storage capacity. It is important to note, however, that these are very different from creativity and information as inputs: they are private goods, not a ,{[pg 113]}, public good like information, and they are standardized goods with well-specified capacities, not heterogeneous and highly uncertain attributes like human creativity at a given moment and context. Their outputs, unlike information, are not public goods. The reasons that they are nonetheless subject to efficient sharing in the networked environment therefore require a different economic explanation. However, the sharing of these material resources, like the sharing of human creativity, insight, and attention, nonetheless relies on both the comparative transaction costs of markets and social relations and the diversity of human motivation. + +Personal computers, wireless transceivers, and Internet connections are "shareable goods." The basic intuition behind the concept of shareable goods is simple. There are goods that are "lumpy": given a state of technology, they can only be produced in certain discrete bundles that offer discontinuous amounts of functionality or capacity. In order to have any ability to run a computation, for example, a consumer must buy a computer processor. These, in turn, only come in discrete units with a certain speed or capacity. One could easily imagine a world where computers are very large and their owners sell computation capacity to consumers "on demand," whenever they needed to run an application. That is basically the way the mainframe world of the 1960s and 1970s worked. However, the economics of microchip fabrication and of network connections over the past thirty years, followed by storage technology, have changed that. For most functions that users need, the price-performance trade-off favors stand-alone, general-purpose personal computers, owned by individuals and capable of running locally most applications users want, over remote facilities capable of selling on-demand computation and storage. So computation and storage today come in discrete, lumpy units. You can decide to buy a faster or slower chip, or a larger or smaller hard drive, but once you buy them, you have the capacity of these machines at your disposal, whether you need it or not. +={computers:as shareable, lumpy goods+2;hardware:as shareable, lumpy goods+2;lumpy goods+2;personal computers:as shareable, lumpy goods+2;physical machinery and computers:as shareable, lumpy goods+2;shareable goods+2} + +Lumpy goods can, in turn, be fine-, medium-, or large-grained. A large-grained good is one that is so expensive it can only be used by aggregating demand for it. Industrial capital equipment, like a steam engine, is of this type. Fine-grained goods are of a granularity that allows consumers to buy precisely as much of the goods needed for the amount of capacity they require. Medium-grained goods are small enough for an individual to justify buying for her own use, given their price and her willingness and ability to pay for the functionality she plans to use. A personal computer is a medium-grained lumpy good in the advanced economies and among the more well-to-do ,{[pg 114]}, in poorer countries, but is a large-grained capital good for most people in poor countries. If, given the price of such a good and the wealth of a society, a large number of individuals buy and use such medium-grained lumpy goods, that society will have a large amount of excess capacity "out there," in the hands of individuals. Because these machines are put into service to serve the needs of individuals, their excess capacity is available for these individuals to use as they wish--for their own uses, to sell to others, or to share with others. It is the combination of the fact that these machines are available at prices (relative to wealth) that allow users to put them in service based purely on their value for personal use, and the fact that they have enough capacity to facilitate additionally the action and fulfill the needs of others, that makes them "shareable." If they were so expensive that they could only be bought by pooling the value of a number of users, they would be placed in service either using some market mechanism to aggregate that demand, or through formal arrangements of common ownership by all those whose demand was combined to invest in purchasing the resource. If they were so finely grained in their capacity that there would be nothing left to share, again, sharing would be harder to sustain. The fact that they are both relatively inexpensive and have excess capacity makes them the basis for a stable model of individual ownership of resources combined with social sharing of that excess capacity. +={fine-grained goods;medium-grained goods;large-grained goods;diversity:granularity of participation+1;granularity:of lumpy goods+1;human motivation:granularity of participation and+1;incentives to produce:granularity of participation and+1;motivation to produce:granularity of participation and+1;organization structure:granularity+1;structure of organizations:granularity+1;structured production:granularity+1;allocating excess capacity+3;capacity:sharing+3;efficiency of information regulation:capacity reallocation+3;excess capacity, sharing+3;inefficiency of information regulation:capacity reallocation+3;proprietary rights, inefficiency of:capacity reallocation+3;reallocating excess capacity+3;reallocation+3;sharing:excess capacity} + +Because social sharing requires less precise specification of the transactional details with each transaction, it has a distinct advantage over market-based mechanisms for reallocating the excess capacity of shareable goods, particularly when they have small quanta of excess capacity relative to the amount necessary to achieve the desired outcome. For example, imagine that there are one thousand people in a population of computer owners. Imagine that each computer is capable of performing one hundred computations per second, and that each computer owner needs to perform about eighty operations per second. Every owner, in other words, has twenty operations of excess capacity every second. Now imagine that the marginal transaction costs of arranging a sale of these twenty operations--exchanging PayPal (a widely used low-cost Internet-based payment system) account information, insurance against nonpayment, specific statement of how much time the computer can be used, and so forth--cost ten cents more than the marginal transaction costs of sharing the excess capacity socially. John wants to render a photograph in one second, which takes two hundred operations per second. Robert wants to model the folding of proteins, which takes ten thousand ,{[pg 115]}, operations per second. For John, a sharing system would save fifty cents--assuming he can use his own computer for half of the two hundred operations he needs. He needs to transact with five other users to "rent" their excess capacity of twenty operations each. Robert, on the other hand, needs to transact with five hundred individual owners in order to use their excess capacity, and for him, using a sharing system is fifty dollars cheaper. The point of the illustration is simple. The cost advantage of sharing as a transactional framework relative to the price system increases linearly with the number of transactions necessary to acquire the level of resources necessary for an operation. If excess capacity in a society is very widely distributed in small dollops, and for any given use of the excess capacity it is necessary to pool the excess capacity of thousands or even millions of individual users, the transaction-cost advantages of the sharing system become significant. + +The transaction-cost effect is reinforced by the motivation crowding out theory. When many discrete chunks of excess capacity need to be pooled, each distinct contributor cannot be paid a very large amount. Motivation crowding out theory would predict that when the monetary rewards to an activity are low, the negative effect of crowding out the social-psychological motivation will weigh more heavily than any increased incentive that is created by the promise of a small payment to transfer one's excess capacity. The upshot is that when the technological state results in excess capacity of physical capital being widely distributed in small dollops, social sharing can outperform secondary markets as a mechanism for harnessing that excess capacity. This is so because of both transaction costs and motivation. Fewer owners will be willing to sell their excess capacity cheaply than to give it away for free in the right social context and the transaction costs of selling will be higher than those of sharing. +={behavior:motivation to produce+1;diversity:motivation to produce+1;human motivation:crowding out theory;incentives to produce:crowding out theory;motivation to produce:crowding out theory} + +From an efficiency perspective, then, there are clear reasons to think that social production systems--both peer production of information, knowledge, and culture and sharing of material resources--can be more efficient than market-based systems to motivate and allocate both human creative effort and the excess computation, storage, and communications capacity that typify the networked information economy. That does not mean that all of us will move out of market-based productive relationships all of the time. It does mean that alongside our market-based behaviors we generate substantial amounts of human creativity and mechanical capacity. The transaction costs of clearing those resources through the price system or through ,{[pg 116]}, firms are substantial, and considerably larger for the marginal transaction than clearing them through social-sharing mechanisms as a transactional framework. With the right institutional framework and peer-review or quality-control mechanisms, and with well-modularized organization of work, social sharing is likely to identify the best person available for a job and make it feasible for that person to work on that job using freely available information inputs. Similarly, social transactional frameworks are likely to be substantially less expensive than market transactions for pooling large numbers of discrete, small increments of the excess capacity of the personal computer processors, hard drives, and network connections that make up the physical capital base of the networked information economy. In both cases, given that much of what is shared is excess capacity from the perspective of the contributors, available to them after they have fulfilled some threshold level of their market-based consumption requirements, social-sharing systems are likely to tap in to social psychological motivations that money cannot tap, and, indeed, that the presence of money in a transactional framework could nullify. Because of these effects, social sharing and collaboration can provide not only a sustainable alternative to market-based and firm-based models of provisioning information, knowledge, culture, and communications, but also an alternative that more efficiently utilizes the human and physical capital base of the networked information economy. A society whose institutional ecology permitted social production to thrive would be more productive under these conditions than a society that optimized its institutional environment solely for market- and firm-based production, ignoring its detrimental effects to social production. + +2~ THE EMERGENCE OF SOCIAL PRODUCTION IN THE DIGITALLY NETWORKED ENVIRONMENT +={economics of nonmarket production:emergence in digital networks+18;nonmarket information producers:emergence of social production+18;nonmarket production, economics of:emergence in digital networks+18;sharing:emergence of social production+18} + +There is a curious congruence between the anthropologists of the gift and mainstream economists today. Both treat the gift literature as being about the periphery, about societies starkly different from modern capitalist societies. As Godelier puts it, "What a contrast between these types of society, these social and mental universes, and today's capitalist society where the majority of social relations are impersonal (involving the individual as citizen and the state, for instance), and where the exchange of things and services is conducted for the most part in an anonymous marketplace, leaving little room for an economy and moral code based on gift-giving."~{ Godelier, The Enigma, 106. }~ And yet, ,{[pg 117]}, sharing is everywhere around us in the advanced economies. Since the 1980s, we have seen an increasing focus, in a number of literatures, on production practices that rely heavily on social rather than price-based or governmental policies. These include, initially, the literature on social norms and social capital, or trust.~{ In the legal literature, Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1991), is the locus classicus for showing how social norms can substitute for law. For a bibliography of the social norms literature outside of law, see Richard H. McAdams, "The Origin, Development, and Regulation of Norms," Michigan Law Review 96 (1997): 338n1, 339n2. Early contributions were: Edna Ullman-Margalit, The Emergence of Norms (Oxford: Clarendon Press, 1977); James Coleman, "Norms as Social Capital," in Economic Imperialism: The Economic Approach Applied Outside the Field of Economics, ed. Peter Bernholz and Gerard Radnitsky (New York: Paragon House Publishers, 1987), 133-155; Sally E. Merry, "Rethinking Gossip and Scandal," in Toward a Theory of Social Control, Fundamentals, ed. Donald Black (New York: Academic Press, 1984). }~ Both these lines of literature, however, are statements of the institutional role of social mechanisms for enabling market exchange and production. More direct observations of social production and exchange systems are provided by the literature on social provisioning of public goods-- like social norm enforcement as a dimension of policing criminality, and the literature on common property regimes.~{ On policing, see Robert C. Ellickson, "Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning," Yale Law Journal 105 (1996): 1165, 1194-1202; and Dan M. Kahan, "Between Economics and Sociology: The New Path of Deterrence," Michigan Law Review 95 (1997): 2477. }~ The former are limited by their focus on public goods provisioning. The latter are usually limited by their focus on discretely identifiable types of resources--common pool resources-- that must be managed as among a group of claimants while retaining a proprietary outer boundary toward nonmembers. The focus of those who study these phenomena is usually on relatively small and tightly knit communities, with clear boundaries between members and nonmembers.~{ An early and broad claim in the name of commons in resources for communication and transportation, as well as human community building--like roads, canals, or social-gathering places--is Carol Rose, "The Comedy of the Commons: Custom, Commerce, and Inherently Public Property," University Chicago Law Review 53 (1986): 711. Condensing around the work of Elinor Ostrom, a more narrowly defined literature developed over the course of the 1990s: Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (New York: Cambridge University Press, 1990). Another seminal study was James M. Acheson, The Lobster Gangs of Maine (New Hampshire: University Press of New England, 1988). A brief intellectual history of the study of common resource pools and common property regimes can be found in Charlotte Hess and Elinor Ostrom, "Ideas, Artifacts, Facilities, and Content: Information as a Common-Pool Resource," Law & Contemporary Problems 66 (2003): 111. }~ +={Godelier, Maurice;gifts+1} + +These lines of literature point to an emerging understanding of social production and exchange as an alternative to markets and firms. Social production is not limited to public goods, to exotic, out-of-the-way places like surviving medieval Spanish irrigation regions or the shores of Maine's lobster fishing grounds, or even to the ubiquitous phenomenon of the household. As SETI@home and Slashdot suggest, it is not necessarily limited to stable communities of individuals who interact often and know each other, or who expect to continue to interact personally. Social production of goods and services, both public and private, is ubiquitous, though unnoticed. It sometimes substitutes for, and sometimes complements, market and state production everywhere. It is, to be fanciful, the dark matter of our economic production universe. + +Consider the way in which the following sentences are intuitively familiar, yet as a practical matter, describe the provisioning of goods or services that have well-defined NAICS categories (the categories used by the Economic Census to categorize economic sectors) whose provisioning through the markets is accounted for in the Economic Census, but that are commonly provisioned in a form consistent with the definition of sharing--on a radically distributed model, without price or command. + +group{ + +NAICS 624410624410 [Babysitting services, child day care] + "John, could you pick up Bobby today when you take Lauren to soccer? +I have a conference call I have to make." ,{[pg 118]}, + "Are you doing homework with Zoe today, or shall I?" + +}group + +group{ + +NAICS 484210 [Trucking used household, office, or institutional +furniture and equipment] + "Jane, could you lend a hand moving this table to the dining room?" + "Here, let me hold the elevator door for you, this looks heavy." + +}group + +group{ + +NAICS 484122 [Trucking, general freight, long-distance, +less-than-truckload] + "Jack, do you mind if I load my box of books in your trunk so +you can drop it off at my brother's on your way to Boston?" + +}group + +group{ + +NAICS 514110 [Traffic reporting services] + "Oh, don't take I-95, it's got horrible construction traffic to +exit 39." + +}group + +group{ + +NAICS 711510 [Newspaper columnists, independent (freelance)] + "I don't know about Kerry, he doesn't move me, I think he should be +more aggressive in criticizing Bush on Iraq." + +}group + +group{ + +NAICS 621610 [Home health-care services] + "Can you please get me my medicine? I'm too wiped to get up." + "Would you like a cup of tea?" + +}group + +group{ + +NAICS 561591 [Tourist information bureaus] + "Excuse me, how do I get to Carnegie Hall?" + +}group + +group{ + +NAICS 561321 [Temporary help services] + "I've got a real crunch on the farm, can you come over on Saturday +and lend a hand?" + "This is crazy, I've got to get this document out tonight, could you +lend me a hand with proofing and pulling it all together tonight?" + +}group + +group{ + +NAICS 71 [Arts, entertainment, and recreation] + "Did you hear the one about the Buddhist monk, the Rabbi, and +the Catholic priest...?" + "Roger, bring out your guitar...." + "Anybody up for a game of...?" + +}group + +The litany of examples generalizes through a combination of four dimensions that require an expansion from the current focus of the literatures related to social production. First, they relate to production of goods and services, not only of norms or rules. Social relations provide the very motivations for, and information relating to, production and exchange, not only the institutional framework for organizing action, which itself is motivated, informed, and organized by markets or managerial commands. Second, they relate to all kinds of goods, not only public goods. In particular, the paradigm cases of free software development and distributed computing involve labor and shareable goods--each plainly utilizing private goods as inputs, ,{[pg 119]}, and, in the case of distributed computing, producing private goods as outputs. Third, at least some of them relate not only to relations of production within well-defined communities of individuals who have repeated interactions, but extend to cover baseline standards of human decency. These enable strangers to ask one another for the time or for directions, enable drivers to cede the road to each other, and enable strangers to collaborate on software projects, on coauthoring an online encyclopedia, or on running simulations of how proteins fold. Fourth, they may either complement or substitute for market and state production systems, depending on the social construction of mixed provisioning. It is hard to measure the weight that social and sharing-based production has in the economy. Our intuitions about capillary systems would suggest that the total volume of boxes or books moved or lifted, instructions given, news relayed, and meals prepared by family, friends, neighbors, and minimally decent strangers would be very high relative to the amount of substitutable activity carried on through market exchanges or state provisioning. +={capabilities of individuals:as modality of production+5;individual capabilities and action:as modality of production+5;information production inputs:individual action as modality+5;inputs to production:individual action as modality+5;production inputs:individual action as modality+5} + +Why do we, despite the ubiquity of social production, generally ignore it as an economic phenomenon, and why might we now reconsider its importance? A threshold requirement for social sharing to be a modality of economic production, as opposed to one purely of social reproduction, is that sharing-based action be effective. Efficacy of individual action depends on the physical capital requirements for action to become materially effective, which, in turn, depend on technology. Effective action may have very low physical capital requirements, so that every individual has, by natural capacity, "the physical capital" necessary for action. Social production or sharing can then be ubiquitous (though in practice, it may not). Vocal cords to participate in a sing-along or muscles to lift a box are obvious examples. When the capital requirements are nontrivial, but the capital good is widely distributed and available, sharing can similarly be ubiquitous and effective. This is true both when the shared resource or good is the capacity of the capital good itself--as in the case of shareable goods--and when some widely distributed human capacity is made effective through the use of the widely distributed capital goods--as in the case of human creativity, judgment, experience, and labor shared in online peer-production processes--in which participants contribute using the widespread availability of connected computers. When use of larger-scale physical capital goods is a threshold requirement of effective action, we should not expect to see widespread reliance on decentralized sharing as a standard modality of production. Industrial ,{[pg 120]}, mass-manufacture of automobiles, steel, or plastic toys, for example, is not the sort of thing that is likely to be produced on a social-sharing basis, because of the capital constraints. This is not to say that even for large-scale capital projects, like irrigation systems and dams, social production systems cannot step into the breach. We have those core examples in the common-property regime literature, and we have worker-owned firms as examples of mixed systems. However, those systems tend to replicate the characteristics of firm, state, or market production--using various combinations of quotas, scrip systems, formal policing by "professional" officers, or management within worker-owned firms. By comparison, the "common property" arrangements described among lobster gangs of Maine or fishing groups in Japan, where capital requirements are much lower, tend to be more social-relations-based systems, with less formalized or crisp measurement of contributions to, and calls on, the production system. +={sharing:technology dependence of+1;technology:dependence on, for sharing+1|enabling social sharing as production modality+4} + +To say that sharing is technology dependent is not to deny that it is a ubiquitous human phenomenon. Sharing is so deeply engrained in so many of our cultures that it would be difficult to argue that with the "right" (or perhaps "wrong") technological contingencies, it would simply disappear. My claim, however, is narrower. It is that the relative economic role of sharing changes with technology. There are technological conditions that require more or less capital, in larger or smaller packets, for effective provisioning of goods, services, and resources the people value. As these conditions change, the relative scope for social-sharing practices to play a role in production changes. When goods, services, and resources are widely dispersed, their owners can choose to engage with each other through social sharing instead of through markets or a formal, state-based relationship, because individuals have available to them the resources necessary to engage in such behavior without recourse to capital markets or the taxation power of the state. If technological changes make the resources necessary for effective action rare or expensive, individuals may wish to interact in social relations, but they can now only do so ineffectively, or in different fields of endeavor that do not similarly require high capitalization. Large-packet, expensive physical capital draws the behavior into one or the other of the modalities of production that can collect the necessary financial capital--through markets or taxation. Nothing, however, prevents change from happening in the opposite direction. Goods, services, and resources that, in the industrial stage of the information economy required large-scale, concentrated capital investment to provision, are now subject to a changing technological environment ,{[pg 121]}, that can make sharing a better way of achieving the same results than can states, markets, or their hybrid, regulated industries. + +Because of changes in the technology of the industrial base of the most advanced economies, social sharing and exchange is becoming a common modality of production at their very core--in the information, culture, education, computation, and communications sectors. Free software, distributed computing, ad hoc mesh wireless networks, and other forms of peer production offer clear examples of large-scale, measurably effective sharing practices. The highly distributed capital structure of contemporary communications and computation systems is largely responsible for this increased salience of social sharing as a modality of economic production in that environment. By lowering the capital costs required for effective individual action, these technologies have allowed various provisioning problems to be structured in forms amenable to decentralized production based on social relations, rather than through markets or hierarchies. + +My claim is not, of course, that we live in a unique moment of humanistic sharing. It is, rather, that our own moment in history suggests a more general observation. The technological state of a society, in particular the extent to which individual agents can engage in efficacious production activities with material resources under their individual control, affects the opportunities for, and hence the comparative prevalence and salience of, social, market-- both price-based and managerial--and state production modalities. The capital cost of effective economic action in the industrial economy shunted sharing to its economic peripheries--to households in the advanced economies, and to the global economic peripheries that have been the subject of the anthropology of gift or the common-property regime literatures. The emerging restructuring of capital investment in digital networks--in particular, the phenomenon of user-capitalized computation and communications capabilities--are at least partly reversing that effect. Technology does not determine the level of sharing. It does, however, set threshold constraints on the effective domain of sharing as a modality of economic production. Within the domain of the practically feasible, the actual level of sharing practices will be culturally driven and cross-culturally diverse. + +Most practices of production--social or market-based--are already embedded in a given technological context. They present no visible "problem" to solve or policy choice to make. We do not need to be focused consciously on improving the conditions under which friends lend a hand to each other to move boxes, make dinner, or take kids to school. We feel no need to ,{[pg 122]}, reconsider the appropriateness of market-based firms as the primary modality for the production of automobiles. However, in moments where a field of action is undergoing a technological transition that changes the opportunities for sharing as a modality of production, understanding that sharing is a modality of production becomes more important, as does understanding how it functions as such. This is so, as we are seeing today, when prior technologies have already set up market- or state-based production systems that have the law and policy-making systems already designed to fit their requirements. While the prior arrangement may have been the most efficient, or even may have been absolutely necessary for the incumbent production system, its extension under new technological conditions may undermine, rather than improve, the capacity of a society to produce and provision the goods, resources, or capacities that are the object of policy analysis. This is, as I discuss in part III, true of wireless communications regulation, or "spectrum management," as it is usually called; of the regulation of information, knowledge, and cultural production, or "intellectual property," as it is usually now called; and it may be true of policies for computation and wired communications networks, as distributed computing and the emerging peer-to-peer architectures suggest. + +2~ THE INTERFACE OF SOCIAL PRODUCTION AND MARKET-BASED BUSINESSES +={commercial model of communication:relationship with social producers+6;industrial model of communication:relationship with social producers+6;information production, market-based:relationship with social producers+6;institutional ecology of digital environment:relationship with social producers+6;market-based information producers:relationship with social producers+6;nonmarket information producers:relationship with nonmarket information producers (cont.) market-based businesses+6;peer production:relationship with market-based business+6;social production, relationship with market-based business+6;traditional model of communication:relationship with social producers+6} + +The rise of social production does not entail a decline in market-based production. Social production first and foremost harnesses impulses, time, and resources that, in the industrial information economy, would have been wasted or used purely for consumption. Its immediate effect is therefore likely to increase overall productivity in the sectors where it is effective. But that does not mean that its effect on market-based enterprises is neutral. A newly effective form of social behavior, coupled with a cultural shift in tastes as well as the development of new technological and social solution spaces to problems that were once solved through market-based firms, exercises a significant force on the shape and conditions of market action. Understanding the threats that these developments pose to some incumbents explains much of the political economy of law in this area, which will occupy chapter 11. At the simplest level, social production in general and peer production in particular present new sources of competition to incumbents that produce information goods for which there are now socially produced substitutes. ,{[pg 123]}, Open source software development, for example, first received mainstream media attention in 1998 due to publication of a leaked internal memorandum from Microsoft, which came to be known as The Halloween Memo. In it, a Microsoft strategist identified the open source methodology as the one major potential threat to the company's dominance over the desktop. As we have seen since, definitively in the Web server market and gradually in segments of the operating system market, this prediction proved prescient. Similarly, /{Wikipedia}/ now presents a source of competition to online encyclopedias like Columbia, Grolier, or Encarta, and may well come to be seen as an adequate substitute for Britannica as well. Most publicly visible, peer-to-peer file sharing networks have come to compete with the recording industry as an alternative music distribution system, to the point where the longterm existence of that industry is in question. Some scholars like William Fisher, and artists like Jenny Toomey and participants in the Future of Music Coalition, are already looking for alternative ways of securing for artists a living from the music they make. +={community clusters:market and nonmarket producers+1;Fisher, William (Terry);Toomey, Jenny;The Halloween Memo} + +The competitive threat from social production, however, is merely a surface phenomenon. Businesses often face competition or its potential, and this is a new source, with new economics, which may or may not put some of the incumbents out of business. But there is nothing new about entrants with new business models putting slow incumbents out of business. More basic is the change in opportunity spaces, the relationships of firms to users, and, indeed, the very nature of the boundary of the firm that those businesses that are already adapting to the presence and predicted persistence of social production are exhibiting. Understanding the opportunities social production presents for businesses begins to outline how a stable social production system can coexist and develop a mutually reinforcing relationship with market-based organizations that adapt to and adopt, instead of fight, them. +={capacity:opportunities created by social production+4;opportunities created by social production+4} + +Consider the example I presented in chapter 2 of IBM's relationship to the free and open source software development community. IBM, as I explained there, has shown more than $2 billion a year in "Linux-related revenues." Prior to IBM's commitment to adapting to what the firm sees as the inevitability of free and open source software, the company either developed in house or bought from external vendors the software it needed as part of its hardware business, on the one hand, and its software services-- customization, enterprise solutions, and so forth--on the other hand. In each case, the software development follows a well-recognized supply chain model. Through either an employment contract or a supply contract the ,{[pg 124]}, company secures a legal right to require either an employee or a vendor to deliver a given output at a given time. In reliance on that notion of a supply chain that is fixed or determined by a contract, the company turns around and promises to its clients that it will deliver the integrated product or service that includes the contracted-for component. With free or open source software, that relationship changes. IBM is effectively relying for its inputs on a loosely defined cloud of people who are engaged in productive social relations. It is making the judgment that the probability that a sufficiently good product will emerge out of this cloud is high enough that it can undertake a contractual obligation to its clients, even though no one in the cloud is specifically contractually committed to it to produce the specific inputs the firm needs in the time-frame it needs it. This apparent shift from a contractually deterministic supply chain to a probabilistic supply chain is less dramatic, however, than it seems. Even when contracts are signed with employees or suppliers, they merely provide a probability that the employee or the supplier will in fact supply in time and at appropriate quality, given the difficulties of coordination and implementation. A broad literature in organization theory has developed around the effort to map the various strategies of collaboration and control intended to improve the likelihood that the different components of the production process will deliver what they are supposed to: from early efforts at vertical integration, to relational contracting, pragmatic collaboration, or Toyota's fabled flexible specialization. The presence of a formalized enforceable contract, for outputs in which the supplier can claim and transfer a property right, may change the probability of the desired outcome, but not the fact that in entering its own contract with its clients, the company is making a prediction about the required availability of necessary inputs in time. When the company turns instead to the cloud of social production for its inputs, it is making a similar prediction. And, as with more engaged forms of relational contracting, pragmatic collaborations, or other models of iterated relations with co-producers, the company may engage with the social process in order to improve the probability that the required inputs will in fact be produced in time. In the case of companies like IBM or Red Hat, this means, at least partly, paying employees to participate in the open source development projects. But managing this relationship is tricky. The firms must do so without seeking to, or even seeming to seek to, take over the project; for to take over the project in order to steer it more "predictably" toward the firm's needs is to kill the goose that lays the golden eggs. For IBM and more recently Nokia, supporting ,{[pg 125]}, the social processes on which they rely has also meant contributing hundreds of patents to the Free Software Foundation, or openly licensing them to the software development community, so as to extend the protective umbrella created by these patents against suits by competitors. As the companies that adopt this strategic reorientation become more integrated into the peer-production process itself, the boundary of the firm becomes more porous. Participation in the discussions and governance of open source development projects creates new ambiguity as to where, in relation to what is "inside" and "outside" of the firm boundary, the social process is. In some cases, a firm may begin to provide utilities or platforms for the users whose outputs it then uses in its own products. The Open Source Development Group (OSDG), for example, provides platforms for Slashdot and SourceForge. In these cases, the notion that there are discrete "suppliers" and "consumers," and that each of these is clearly demarcated from the other and outside of the set of stable relations that form the inside of the firm becomes somewhat attenuated. +={free software:as competition to market-based business;open-source software:as competition to market-based business;software, open-source:as competition to market based business;IBM's business strategy+1;management, changing relationships of+3} + +As firms have begun to experience these newly ambiguous relationships with individuals and social groups, they have come to wrestle with questions of leadership and coexistence. Businesses like IBM, or eBay, which uses peer production as a critical component of its business ecology--the peer reviewed system of creating trustworthiness, without which person-to-person transactions among individual strangers at a distance would be impossible-- have to structure their relationship to the peer-production processes that they co-exist with in a helpful and non-threatening way. Sometimes, as we saw in the case of IBM's contributions to the social process, this may mean support without attempting to assume "leadership" of the project. Sometimes, as when peer production is integrated more directly into what is otherwise a commercially created and owned platform--as in the case of eBay--the relationship is more like that of a peer-production leader than of a commercial actor. Here, the critical and difficult point for business managers to accept is that bringing the peer-production community into the newly semi-porous boundary of the firm--taking those who used to be customers and turning them into participants in a process of co-production-- changes the relationship of the firm's managers and its users. Linden Labs, which runs Second Life, learned this in the context of the tax revolt described in chapter 3. Users cannot be ordered around like employees. Nor can they be simply advertised-to and manipulated, or even passively surveyed, like customers. To do that would be to lose the creative and generative social ,{[pg 126]}, character that makes integration of peer production into a commercial business model so valuable for those businesses that adopt it. Instead, managers must be able to identify patterns that emerge in the community and inspire trust that they are correctly judging the patterns that are valuable from the perspective of the users, not only the enterprise, so that the users in fact coalesce around and extend these patterns. + +The other quite basic change wrought by the emergence of social production, from the perspective of businesses, is a change in taste. Active users require and value new and different things than passive consumers did. The industrial information economy specialized in producing finished goods, like movies or music, to be consumed passively, and well-behaved appliances, like televisions, whose use was fully specified at the factory door. The emerging businesses of the networked information economy are focusing on serving the demand of active users for platforms and tools that are much more loosely designed, late-binding--that is, optimized only at the moment of use and not in advance--variable in their uses, and oriented toward providing users with new, flexible platforms for relationships. Personal computers, camera phones, audio and video editing software, and similar utilities are examples of tools whose value increases for users as they are enabled to explore new ways to be creative and productively engaged with others. In the network, we are beginning to see business models emerge to allow people to come together, like MeetUp, and to share annotations of Web pages they read, like del.icio.us, or photographs they took, like Flickr. Services like Blogger and Technorati similarly provide platforms for the new social and cultural practices of personal journals, or the new modes of expression described in chapters 7 and 8. +={active vs. passive consumers+1;consumer surplus:See capacity, sharing consumerism, active vs. passive+1;diversity:changes in taste;participatory culture:See also culture passive vs. active consumers+1;users as consumers+1;taste, changes in} + +The overarching point is that social production is reshaping the market conditions under which businesses operate. To some of the incumbents of the industrial information economy, the pressure from social production is experienced as pure threat. It is the clash between these incumbents and the new practices that was most widely reported in the media in the first five years of the twenty-first century, and that has driven much of policy making, legislation, and litigation in this area. But the much more fundamental effect on the business environment is that social production is changing the relationship of firms to individuals outside of them, and through this changing the strategies that firms internally are exploring. It is creating new sources of inputs, and new tastes and opportunities for outputs. Consumers are changing into users--more active and productive than the consumers of the ,{[pg 127]}, industrial information economy. The change is reshaping the relationships necessary for business success, requiring closer integration of users into the process of production, both in inputs and outputs. It requires different leadership talents and foci. By the time of this writing, in 2005, these new opportunities and adaptations have begun to be seized upon as strategic advantages by some of the most successful companies working around the Internet and information technology, and increasingly now around information and cultural production more generally. Eric von Hippel's work has shown how the model of user innovation has been integrated into the business model of innovative firms even in sectors far removed from either the network or from information production--like designing kite-surfing equipment or mountain bikes. As businesses begin to do this, the platforms and tools for collaboration improve, the opportunities and salience of social production increases, and the political economy begins to shift. And as these firms and social processes coevolve, the dynamic accommodation they are developing provides us with an image of what the future stable interface between market-based businesses and the newly salient social production is likely to look like. ,{[pg 128]}, ,{[pg 129]}, +={von Hippel, Eric} + +:B~ Part Two - The Political Economy of Property and Commons + +1~p2 Introduction +={commons+5;property ownership+5} + +How a society produces its information environment goes to the very core of freedom. Who gets to say what, to whom? What is the state of the world? What counts as credible information? How will different forms of action affect the way the world can become? These questions go to the foundations of effective human action. They determine what individuals understand to be the range of options open to them, and the range of consequences to their actions. They determine what is understood to be open for debate in a society, and what is considered impossible as a collective goal or a collective path for action. They determine whose views count toward collective action, and whose views are lost and never introduced into the debate of what we should do as political entities or social communities. Freedom depends on the information environment that those individuals and societies occupy. Information underlies the very possibility of individual self-direction. Information and communication constitute the practices that enable a community to form a common range of understandings of what is at stake and what paths are open for the taking. They are constitutive ,{[pg 130]}, components of both formal and informal mechanisms for deciding on collective action. Societies that embed the emerging networked information economy in an institutional ecology that accommodates nonmarket production, both individual and cooperative, will improve the freedom of their constituents along all these dimensions. +={freedom} + +The networked information economy makes individuals better able to do things for and by themselves, and makes them less susceptible to manipulation by others than they were in the mass-media culture. In this sense, the emergence of this new set of technical, economic, social, and institutional relations can increase the relative role that each individual is able to play in authoring his or her own life. The networked information economy also promises to provide a much more robust platform for public debate. It enables citizens to participate in public conversation continuously and pervasively, not as passive recipients of "received wisdom" from professional talking heads, but as active participants in conversations carried out at many levels of political and social structure. Individuals can find out more about what goes on in the world, and share it more effectively with others. They can check the claims of others and produce their own, and they can be heard by others, both those who are like-minded and opponents. At a more foundational level of collective understanding, the shift from an industrial to a networked information economy increases the extent to which individuals can become active participants in producing their own cultural environment. It opens the possibility of a more critical and reflective culture. + +Unlike the relationship of information production to freedom, the relationship between the organization of information production and distributive justice is not intrinsic. However, the importance of knowledge in contemporary economic production makes a change in the modality of information production important to justice as well. The networked information economy can provide opportunities for global development and for improvements in the justice of distribution of opportunities and capacities everywhere. Economic opportunity and welfare today--of an individual, a social group, or a nation--depend on the state of knowledge and access to opportunities to learn and apply practical knowledge. Transportation networks, global financial markets, and institutional trade arrangements have made material resources and outputs capable of flowing more efficiently from any one corner of the globe to another than they were at any previous period. Economic welfare and growth now depend more on knowledge and social ,{[pg 131]}, organization than on natural sources. Knowledge transfer and social reform, probably more than any other set of changes, can affect the economic opportunities and material development of different parts of the global economic system, within economies both advanced and less developed. The emergence of a substantial nonmarket sector in the networked information economy offers opportunities for providing better access to knowledge and information as input from, and better access for information outputs of, developing and less-developed economies and poorer geographic and social sectors in the advanced economies. Better access to knowledge and the emergence of less capital-dependent forms of productive social organization offer the possibility that the emergence of the networked information economy will open up opportunities for improvement in economic justice, on scales both global and local. +={economic opportunity;human welfare;welfare} + +The basic intuition and popular belief that the Internet will bring greater freedom and global equity has been around since the early 1990s. It has been the technophile's basic belief, just as the horrors of cyberporn, cybercrime, or cyberterrorism have been the standard gut-wrenching fears of the technophobe. The technophilic response is reminiscent of claims made in the past for electricity, for radio, or for telegraph, expressing what James Carey described as "the mythos of the electrical sublime." The question this part of the book explores is whether this claim, given the experience of the past decade, can be sustained on careful analysis, or whether it is yet another instance of a long line of technological utopianism. The fact that earlier utopias were overly optimistic does not mean that these previous technologies did not in fact alter the conditions of life--material, social, and intellectual. They did, but they did so differently in different societies, and in ways that diverged from the social utopias attached to them. Different nations absorbed and used these technologies differently, diverging in social and cultural habits, but also in institutional strategies for adoption--some more state-centric, others more market based; some more controlled, others less so. Utopian or at least best-case conceptions of the emerging condition are valuable if they help diagnose the socially and politically significant attributes of the emerging networked information economy correctly and allow us to form a normative conception of their significance. At a minimum, with these in hand, we can begin to design our institutional response to the present technological perturbation in order to improve the conditions of freedom and justice over the next few decades. ,{[pg 132]}, +={Carey, James} + +The chapters in this part focus on major liberal commitments or concerns. Chapter 5 addresses the question of individual autonomy. Chapters 6, 7, and 8 address democratic participation: first in the political public sphere and then, more broadly, in the construction of culture. Chapter 9 deals with justice and human development. Chapter 10 considers the effects of the networked information economy on community. ,{[pg 133]}, + +1~5 Chapter 5 - Individual Freedom: Autonomy, Information, and Law +={autonomy+64;individual autonomy+64} + +The emergence of the networked information economy has the potential to increase individual autonomy. First, it increases the range and diversity of things that individuals can do for and by themselves. It does this by lifting, for one important domain of life, some of the central material constraints on what individuals can do that typified the industrial information economy. The majority of materials, tools, and platforms necessary for effective action in the information environment are in the hands of most individuals in advanced economies. Second, the networked information economy provides nonproprietary alternative sources of communications capacity and information, alongside the proprietary platforms of mediated communications. This decreases the extent to which individuals are subject to being acted upon by the owners of the facilities on which they depend for communications. The construction of consumers as passive objects of manipulation that typified television culture has not disappeared overnight, but it is losing its dominance in the information environment. Third, the networked information environment qualitatively increases the range and diversity of information ,{[pg 134]}, available to individuals. It does so by enabling sources commercial and noncommercial, mainstream and fringe, domestic or foreign, to produce information and communicate with anyone. This diversity radically changes the universe of options that individuals can consider as open for them to pursue. It provides them a richer basis to form critical judgments about how they could live their lives, and, through this opportunity for critical reflection, why they should value the life they choose. + +2~ FREEDOM TO DO MORE FOR ONESELF, BY ONESELF, AND WITH OTHERS + +Rory Cejas was a twenty-six-year-old firefighter/paramedic with the Miami Fire Department in 2003, when he enlisted the help of his brother, wife, and a friend to make a Star Wars-like fan film. Using a simple camcorder and tripod, and widely available film and image generation and editing software on his computer, he made a twenty-minute film he called /{The Jedi Saga}/. The film is not a parody. It is not social criticism. It is a straightforward effort to make a movie in the genre of /{Star Wars}/, using the same type of characters and story lines. In the predigital world, it would have been impossible, as a practical matter, for Cejas to do this. It would have been an implausible part of his life plan to cast his wife as a dark femme fatale, or his brother as a Jedi Knight, so they could battle shoulder-to-shoulder, light sabers drawn, against a platoon of Imperial clone soldiers. And it would have been impossible for him to distribute the film he had made to friends and strangers. The material conditions of cultural production have changed, so that it has now become part of his feasible set of options. He needs no help from government to do so. He needs no media access rules that give him access to fancy film studios. He needs no cable access rules to allow him to distribute his fantasy to anyone who wants to watch it. The new set of feasible options open to him includes not only the option passively to sit in the theatre or in front of the television and watch the images created by George Lucas, but also the option of trying his hand at making this type of film by himself. +={Cejas, Rory+1;Jedi Saga, The+1;Lucas, George+1} + +/{Jedi Saga}/ will not be a blockbuster. It is not likely to be watched by many people. Those who do watch it are not likely to enjoy it in the same way that they enjoyed any of Lucas's films, but that is not its point. When someone like Cejas makes such a film, he is not displacing what Lucas does. He is changing what he himself does--from sitting in front of a screen that ,{[pg 135]}, is painted by another to painting his own screen. Those who watch it will enjoy it in the same way that friends and family enjoy speaking to each other or singing together, rather than watching talking heads or listening to Talking Heads. Television culture, the epitome of the industrial information economy, structured the role of consumers as highly passive. While media scholars like John Fiske noted the continuing role of viewers in construing and interpreting the messages they receive, the role of the consumer in this model is well defined. The media product is a finished good that they consume, not one that they make. Nowhere is this clearer than in the movie theatre, where the absence of light, the enveloping sound, and the size of the screen are all designed to remove the viewer as agent, leaving only a set of receptors--eyes, ears--through which to receive the finished good that is the movie. There is nothing wrong with the movies as one mode of entertainment. The problem emerges, however, when the movie theatre becomes an apt metaphor for the relationship the majority of people have with most of the information environment they occupy. That increasing passivity of television culture came to be a hallmark of life for most people in the late stages of the industrial information economy. The couch potato, the eyeball bought and sold by Madison Avenue, has no part in making the information environment he or she occupies. +={active vs. passive consumers+1;consumer surplus:See capacity, sharing consumerism, active vs. passive+1;culture:of television;Fiske, John;participatory culture:See also culture passive vs. active consumers;television:culture of} + +Perhaps no single entertainment product better symbolizes the shift that the networked information economy makes possible from television culture than the massive multiplayer online game. These games are typified by two central characteristics. First, they offer a persistent game environment. That is, any action taken or "object" created anywhere in the game world persists over time, unless and until it is destroyed by some agent in the game; and it exists to the same extent for all players. Second, the games are effectively massive collaboration platforms for thousands, tens of thousands--or in the case of Lineage, the most popular game in South Korea, more than four million--users. These platforms therefore provide individual players with various contexts in which to match their wits and skills with other human players. The computer gaming environment provides a persistent relational database of the actions and social interactions of players. The first games that became mass phenomena, like Ultima Online or Everquest, started with an already richly instantiated context. Designers of these games continue to play a large role in defining the range of actions and relations feasible for players. The basic medieval themes, the role of magic and weapons, and the types and ranges of actions that are possible create much of the context, and ,{[pg 136]}, therefore the types of relationships pursued. Still, these games leave qualitatively greater room for individual effort and personal taste in producing the experience, the relationships, and hence the story line, relative to a television or movie experience. Second Life, a newer game by Linden Labs, offers us a glimpse into the next step in this genre of immersive entertainment. Like other massively multiplayer online games, Second Life is a persistent collaboration platform for its users. Unlike other games, however, Second Life offers only tools, with no story line, stock objects, or any cultural or meaning-oriented context whatsoever. Its users have created 99 percent of the objects in the game environment. The medieval village was nothing but blank space when they started. So was the flying vehicle design shop, the futuristic outpost, or the university, where some of the users are offering courses in basic programming skills and in-game design. Linden Labs charges a flat monthly subscription fee. Its employees focus on building tools that enable users to do everything from basic story concept down to the finest details of their own appearance and of objects they use in the game world. The in-game human relationships are those made by the users as they interact with each other in this immersive entertainment experience. The game's relationship to its users is fundamentally different from that of the movie or television studio. Movies and television seek to control the entire experience--rendering the viewer inert, but satisfied. Second Life sees the users as active makers of the entertainment environment that they occupy, and seeks to provide them with the tools they need to be so. The two models assume fundamentally different conceptions of play. Whereas in front of the television, the consumer is a passive receptacle, limited to selecting which finished good he or she will consume from a relatively narrow range of options, in the world of Second Life, the individual is treated as a fundamentally active, creative human being, capable of building his or her own fantasies, alone and in affiliation with others. +={communities:immersive entertainment;computer gaming environment;entertainment industry:immersive;games, immersive;immersive entertainment;massive multiplayer games;MMOGs (massive multiplayer online games);Second Life game environment} + +Second Life and /{Jedi Saga}/ are merely examples, perhaps trivial ones, within the entertainment domain. They represent a shift in possibilities open both to human beings in the networked information economy and to the firms that sell them the tools for becoming active creators and users of their information environment. They are stark examples because of the centrality of the couch potato as the image of human action in television culture. Their characteristics are representative of the shift in the individual's role that is typical of the networked information economy in general and of peer production in particular. Linus Torvalds, the original creator of the Linux kernel ,{[pg 137]}, development community, was, to use Eric Raymond's characterization, a designer with an itch to scratch. Peer-production projects often are composed of people who want to do something in the world and turn to the network to find a community of peers willing to work together to make that wish a reality. Michael Hart had been working in various contexts for more than thirty years when he--at first gradually, and more recently with increasing speed--harnessed the contributions of hundreds of volunteers to Project Gutenberg in pursuit of his goal to create a globally accessible library of public domain e-texts. Charles Franks was a computer programmer from Las Vegas when he decided he had a more efficient way to proofread those e-texts, and built an interface that allowed volunteers to compare scanned images of original texts with the e-texts available on Project Gutenberg. After working independently for a couple of years, he joined forces with Hart. Franks's facility now clears the volunteer work of more than one thousand proofreaders, who proof between two hundred and three hundred books a month. Each of the thousands of volunteers who participate in free software development projects, in /{Wikipedia}/, in the Open Directory Project, or in any of the many other peer-production projects, is living some version, as a major or minor part of their lives, of the possibilities captured by the stories of a Linus Torvalds, a Michael Hart, or /{The Jedi Saga}/. Each has decided to take advantage of some combination of technical, organizational, and social conditions within which we have come to live, and to become an active creator in his or her world, rather than merely to accept what was already there. The belief that it is possible to make something valuable happen in the world, and the practice of actually acting on that belief, represent a qualitative improvement in the condition of individual freedom. They mark the emergence of new practices of self-directed agency as a lived experience, going beyond mere formal permissibility and theoretical possibility. +={Project Gutenberg;Torvalds, Linus;Franks, Charles;Hart, Michael;Raymond, Eric} + +Our conception of autonomy has not only been forged in the context of the rise of the democratic, civil rights?respecting state over its major competitors as a political system. In parallel, we have occupied the context of the increasing dominance of market-based industrial economy over its competitors. The culture we have developed over the past century is suffused with images that speak of the loss of agency imposed by that industrial economy. No cultural image better captures the way that mass industrial production reduced workers to cogs and consumers to receptacles than the one-dimensional curves typical of welfare economics--those that render human beings as mere production and demand functions. Their cultural, if ,{[pg 138]}, not intellectual, roots are in Fredrick Taylor's Theory of Scientific Management: the idea of abstracting and defining all motions and actions of employees in the production process so that all the knowledge was in the system, while the employees were barely more than its replaceable parts. Taylorism, ironically, was a vast improvement over the depredations of the first industrial age, with its sweatshops and child labor. It nonetheless resolved into the kind of mechanical existence depicted in Charlie Chaplin's tragic-comic portrait, Modern Times. While the grind of industrial Taylorism seems far from the core of the advanced economies, shunted as it is now to poorer economies, the basic sense of alienation and lack of effective agency persists. Scott Adams's Dilbert comic strip, devoted to the life of a white-collar employee in a nameless U.S. corporation, thoroughly alienated from the enterprise, crimped by corporate hierarchy, resisting in all sorts of ways-- but trapped in a cubicle--powerfully captures this sense for the industrial information economy in much the same way that Chaplin's Modern Times did for the industrial economy itself. +={industrial age:reduction of individual autonomy+1;Adams, Scott;Chaplin, Charlie;Taylor, Fredrick} + +In the industrial economy and its information adjunct, most people live most of their lives within hierarchical relations of production, and within relatively tightly scripted possibilities after work, as consumers. It did not necessarily have to be this way. Michael Piore and Charles Sabel's Second Industrial Divide and Roberto Mangabeira Unger's False Necessity were central to the emergence of a "third way" literature that developed in the 1980s and 1990s to explore the possible alternative paths to production processes that did not depend so completely on the displacement of individual agency by hierarchical production systems. The emergence of radically decentralized, nonmarket production provides a new outlet for the attenuation of the constrained and constraining roles of employees and consumers. It is not limited to Northern Italian artisan industries or imagined for emerging economies, but is at the very heart of the most advanced market economies. Peer production and otherwise decentralized nonmarket production can alter the producer/consumer relationship with regard to culture, entertainment, and information. We are seeing the emergence of the user as a new category of relationship to information production and exchange. Users are individuals who are sometimes consumers and sometimes producers. They are substantially more engaged participants, both in defining the terms of their productive activity and in defining what they consume and how they consume it. In these two great domains of life--production and consumption, work and play--the networked information economy promises to enrich individual ,{[pg 139]}, autonomy substantively by creating an environment built less around control and more around facilitating action. +={Sabel, Charles;Mangabeira Unger, Roberto;Piore, Michael} + +The emergence of radically decentralized nonmarket production in general and of peer production in particular as feasible forms of action opens new classes of behaviors to individuals. Individuals can now justifiably believe that they can in fact do things that they want to do, and build things that they want to build in the digitally networked environment, and that this pursuit of their will need not, perhaps even cannot, be frustrated by insurmountable cost or an alien bureaucracy. Whether their actions are in the domain of political organization (like the organizers of MoveOn.org), or of education and professional attainment (as with the case of Jim Cornish, who decided to create a worldwide center of information on the Vikings from his fifth-grade schoolroom in Gander, Newfoundland), the networked information environment opens new domains for productive life that simply were not there before. In doing so, it has provided us with new ways to imagine our lives as productive human beings. Writing a free operating system or publishing a free encyclopedia may have seemed quixotic a mere few years ago, but these are now far from delusional. Human beings who live in a material and social context that lets them aspire to such things as possible for them to do, in their own lives, by themselves and in loose affiliation with others, are human beings who have a greater realm for their agency. We can live a life more authored by our own will and imagination than by the material and social conditions in which we find ourselves. At least we can do so more effectively than we could until the last decade of the twentieth century. + +This new practical individual freedom, made feasible by the digital environment, is at the root of the improvements I describe here for political participation, for justice and human development, for the creation of a more critical culture, and for the emergence of the networked individual as a more fluid member of community. In each of these domains, the improvements in the degree to which these liberal commitments are honored and practiced emerge from new behaviors made possible and effective by the networked information economy. These behaviors emerge now precisely because individuals have a greater degree of freedom to act effectively, unconstrained by a need to ask permission from anyone. It is this freedom that increases the salience of nonmonetizable motivations as drivers of production. It is this freedom to seek out whatever information we wish, to write about it, and to join and leave various projects and associations with others that underlies ,{[pg 140]}, the new efficiencies we see in the networked information economy. These behaviors underlie the cooperative news and commentary production that form the basis of the networked public sphere, and in turn enable us to look at the world as potential participants in discourse, rather than as potential viewers only. They are at the root of making a more transparent and reflective culture. They make possible the strategies I suggest as feasible avenues to assure equitable access to opportunities for economic participation and to improve human development globally. + +Treating these new practical opportunities for action as improvements in autonomy is not a theoretically unproblematic proposition. For all its intuitive appeal and centrality, autonomy is a notoriously nebulous concept. In particular, there are deep divisions within the literature as to whether it is appropriate to conceive of autonomy in substantive terms--as Gerald Dworkin, Joseph Raz, and Joel Feinberg most prominently have, and as I have here--or in formal terms. Formal conceptions of autonomy are committed to assuming that all people have the capacity for autonomous choice, and do not go further in attempting to measure the degree of freedom people actually exercise in the world in which they are in fact constrained by circumstances, both natural and human. This commitment is not rooted in some stubborn unwillingness to recognize the slings and arrows of outrageous fortune that actually constrain our choices. Rather, it comes from the sense that only by treating people as having these capacities and abilities can we accord them adequate respect as free, rational beings, and avoid sliding into overbearing paternalism. As Robert Post put it, while autonomy may well be something that needs to be "achieved" as a descriptive matter, the "structures of social authority" will be designed differently depending on whether or not individuals are treated as autonomous. "From the point of view of the designer of the structure, therefore, the presence or absence of autonomy functions as an axiomatic and foundational principle."~{ Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109, 1130-1132. }~ Autonomy theory that too closely aims to understand the degree of autonomy people actually exercise under different institutional arrangements threatens to form the basis of an overbearing benevolence that would undermine the very possibility of autonomous action. +={autonomy:formal conception of+3;formal autonomy theory+3;individual autonomy:formal conception of+3;Dworkin, Gerard;Post, Robert;Raz, Joseph;Feinberg, Joel} + +While the fear of an overbearing bureaucracy benevolently guiding us through life toward becoming more autonomous is justifiable, the formal conception of autonomy pays a high price in its bluntness as a tool to diagnose the autonomy implications of policy. Given how we are: situated, ,{[pg 141]}, context-bound, messy individuals, it would be a high price to pay to lose the ability to understand how law and policy actually affect whatever capacity we do have to be the authors of our own life choices in some meaningful sense. We are individuals who have the capacity to form beliefs and to change them, to form opinions and plans and defend them--but also to listen to arguments and revise our beliefs. We experience some decisions as being more free than others; we mock or lament ourselves when we find ourselves trapped by the machine or the cubicle, and we do so in terms of a sense of helplessness, a negation of freedom, not only, or even primarily, in terms of lack of welfare; and we cherish whatever conditions those are that we experience as "free" precisely for that freedom, not for other reasons. Certainly, the concerns with an overbearing state, whether professing benevolence or not, are real and immediate. No one who lives with the near past of the totalitarianism of the twentieth century or with contemporary authoritarianism and fundamentalism can belittle these. But the great evils that the state can impose through formal law should not cause us to adopt methodological commitments that would limit our ability to see the many ways in which ordinary life in democratic societies can nonetheless be more or less free, more or less conducive to individual self-authorship. + +If we take our question to be one concerned with diagnosing the condition of freedom of individuals, we must observe the conditions of life from a first-person, practical perspective--that is, from the perspective of the person whose autonomy we are considering. If we accept that all individuals are always constrained by personal circumstances both physical and social, then the way to think about autonomy of human agents is to inquire into the relative capacity of individuals to be the authors of their lives within the constraints of context. From this perspective, whether the sources of constraint are private actors or public law is irrelevant. What matters is the extent to which a particular configuration of material, social, and institutional conditions allows an individual to be the author of his or her life, and to what extent these conditions allow others to act upon the individual as an object of manipulation. As a means of diagnosing the conditions of individual freedom in a given society and context, we must seek to observe the extent to which people are, in fact, able to plan and pursue a life that can reasonably be described as a product of their own choices. It allows us to compare different conditions, and determine that a certain condition allows individuals to do more for themselves, without asking permission from anyone. In this sense, we can say that the conditions that enabled Cejas ,{[pg 142]}, to make /{Jedi Saga}/ are conditions that made him more autonomous than he would have been without the tools that made that movie possible. It is in this sense that the increased range of actions we can imagine for ourselves in loose affiliation with others--like creating a Project Gutenberg--increases our ability to imagine and pursue life plans that would have been impossible in the recent past. +={Cejas, Rory} + +From the perspective of the implications of autonomy for how people act in the digital environment, and therefore how they are changing the conditions of freedom and justice along the various dimensions explored in these chapters, this kind of freedom to act is central. It is a practical freedom sufficient to sustain the behaviors that underlie the improvements in these other domains. From an internal perspective of the theory of autonomy, however, this basic observation that people can do more by themselves, alone or in loose affiliation with others, is only part of the contribution of the networked information economy to autonomy, and a part that will only be considered an improvement by those who conceive of autonomy as a substantive concept. The implications of the networked information economy for autonomy are, however, broader, in ways that make them attractive across many conceptions of autonomy. To make that point, however, we must focus more specifically on law as the source of constraint, a concern common to both substantive and formal conceptions of autonomy. As a means of analyzing the implications of law to autonomy, the perspective offered here requires that we broaden our analysis beyond laws that directly limit autonomy. We must also look to laws that structure the conditions of action for individuals living within the ambit of their effect. In particular, where we have an opportunity to structure a set of core resources necessary for individuals to perceive the state of the world and the range of possible actions, and to communicate their intentions to others, we must consider whether the way we regulate these resources will create systematic limitations on the capacity of individuals to control their own lives, and in their susceptibility to manipulation and control by others. Once we recognize that there cannot be a person who is ideally "free," in the sense of being unconstrained or uncaused by the decisions of others, we are left to measure the effects of all sorts of constraints that predictably flow from a particular legal arrangement, in terms of the effect they have on the relative role that individuals play in authoring their own lives. ,{[pg 143]}, + +2~ AUTONOMY, PROPERTY, AND COMMONS +={culture:security of context+5;freedom:property and commons+5;norms (social):property, commons, and autonomy+5;property ownership:autonomy and+5;regulation by social norms:property, commons, and autonomy+5;security of context+5;social relations and norms:property, commons, and autonomy+5} + +The first legal framework whose role is altered by the emergence of the networked information economy is the property-like regulatory structure of patents, copyrights, and similar exclusion mechanisms applicable to information, knowledge, and culture. Property is usually thought in liberal theory to enhance, rather than constrain, individual freedom, in two quite distinct ways. First, it provides security of material context--that is, it allows one to know with some certainty that some set of resources, those that belong to her, will be available for her to use to execute her plans over time. This is the core of Kant's theory of property, which relies on a notion of positive liberty, the freedom to do things successfully based on life plans we can lay for ourselves. Second, property and markets provide greater freedom of action for the individual owner as compared both, as Marx diagnosed, to the feudal arrangements that preceded them, and, as he decidedly did not but Hayek did, to the models of state ownership and regulation that competed with them throughout most of the twentieth century. +={Hayek, Friedrich;Kant, Immanuel;Marx, Karl} + +Markets are indeed institutional spaces that enable a substantial degree of free choice. "Free," however, does not mean "anything goes." If John possesses a car and Jane possesses a gun, a market will develop only if John is prohibited from running Jane over and taking her gun, and also if Jane is prohibited from shooting at John or threatening to shoot him if he does not give her his car. A market that is more or less efficient will develop only if many other things are prohibited to, or required of, one or both sides--like monopolization or disclosure. Markets are, in other words, structured relationships intended to elicit a particular datum--the comparative willingness and ability of agents to pay for goods or resources. The most basic set of constraints that structure behavior in order to enable markets are those we usually call property. Property is a cluster of background rules that determine what resources each of us has when we come into relations with others, and, no less important, what "having" or "lacking" a resource entails in our relations with these others. These rules impose constraints on who can do what in the domain of actions that require access to resources that are the subjects of property law. They are aimed to crystallize asymmetries of power over resources, which then form the basis for exchanges--I will allow you to do X, which I am asymmetrically empowered to do (for example, watch television using this cable system), and you, in turn, will allow me to do Y, which you are asymmetrically empowered to do (for example, receive payment ,{[pg 144]}, from your bank account). While a necessary precondition for markets, property also means that choice in markets is itself not free of constraints, but is instead constrained in a particular pattern. It makes some people more powerful with regard to some things, and must constrain the freedom of action of others in order to achieve this asymmetry.~{ This conception of property was first introduced and developed systematically by Robert Lee Hale in the 1920s and 1930s, and was more recently integrated with contemporary postmodern critiques of power by Duncan Kennedy, Sexy Dressing Etc.: Essays on the Power and Politics of Cultural Identity (Cambridge, MA: Harvard University Press, 1993). }~ + +Commons are an alternative form of institutional space, where human agents can act free of the particular constraints required for markets, and where they have some degree of confidence that the resources they need for their plans will be available to them. Both freedom of action and security of resource availability are achieved in very different patterns than they are in property-based markets. As with markets, commons do not mean that anything goes. Managing resources as commons does, however, mean that individuals and groups can use those resources under different types of constraints than those imposed by property law. These constraints may be social, physical, or regulatory. They may make individuals more free or less so, in the sense of permitting a greater or lesser freedom of action to choose among a range of actions that require access to resources governed by them than would property rules in the same resources. Whether having a particular type of resource subject to a commons, rather than a property-based market, enhances freedom of action and security, or harms them, is a context-specific question. It depends on how the commons is structured, and how property rights in the resource would have been structured in the absence of a commons. The public spaces in New York City, like Central Park, Union Square, or any sidewalk, afford more people greater freedom than does a private backyard--certainly to all but its owner. Given the diversity of options that these public spaces make possible as compared to the social norms that neighbors enforce against each other, they probably offer more freedom of action than a backyard offers even to its owner in many loosely urban and suburban communities. Swiss pastures or irrigation districts of the type that Elinor Ostrom described as classic cases of long-standing sustainable commons offer their participants security of holdings at least as stable as any property system, but place substantial traditional constraints on who can use the resources, how they can use them, and how, if at all, they can transfer their rights and do something completely different. These types of commons likely afford their participants less, rather than more, freedom of action than would have been afforded had they owned the same resource in a market-alienable property arrangement, although they retain security in much the same way. Commons, like the air, the sidewalk, the road and highway, the ,{[pg 145]}, ocean, or the public beach, achieve security on a very different model. I can rely on the resources so managed in a probabilistic, rather than deterministic sense. I can plan to meet my friends for a picnic in the park, not because I own the park and can direct that it be used for my picnic, but because I know there will be a park, that it is free for me to use, and that there will be enough space for us to find a corner to sit in. This is also the sort of security that allows me to plan to leave my house at some hour, and plan to be at work at some other hour, relying not on owning the transportation path, but on the availability to me of the roads and highways on symmetric terms to its availability to everyone else. If we look more closely, we will see that property and markets also offer only a probabilistic security of context, whose parameters are different--for example, the degree of certainty we have as to whether the resource we rely on as our property will be stolen or damaged, whether it will be sufficient for what we need, or if we need more, whether it will be available for sale and whether we will be able to afford it. +={commons:autonomy and+2;Ostrom, Elinor} + +Like property and markets, then, commons provide both freedom of action and security of context. They do so, however, through the imposition of different constraints than do property and market rules. In particular, what typifies all these commons in contradistinction to property is that no actor is empowered by law to act upon another as an object of his or her will. I can impose conditions on your behavior when you are walking on my garden path, but I have no authority to impose on you when you walk down the sidewalk. Whether one or the other of the two systems, used exclusively, will provide "greater freedom" in some aggregate sense is not a priori determinable. It will depend on the technical characteristics of the resource, the precise contours of the rules of, respectively, the proprietary market and the commons, and the distribution of wealth in society. Given the diversity of resources and contexts, and the impossibility of a purely "anything goes" absence of rules for either system, some mix of the two different institutional frameworks is likely to provide the greatest diversity of freedom to act in a material context. This diversity, in turn, enables the greatest freedom to plan action within material contexts, allowing individuals to trade off the availabilities of, and constraints on, different resources to forge a context sufficiently provisioned to enable them to execute their plans, while being sufficiently unregulated to permit them to do so. Freedom inheres in diversity of constraint, not in the optimality of the balance of freedom and constraint represented by any single institutional arrangement. It is the diversity of constraint that allows individuals to plan to live out different ,{[pg 146]}, portions and aspects of their lives in different institutional contexts, taking advantage of the different degrees of freedom and security they make possible. + +In the context of information, knowledge, and culture, because of the nonrivalry of information and its characteristic as input as well as output of the production process, the commons provides substantially greater security of context than it does when material resources, like parks or roadways, are at stake. Moreover, peer production and the networked information economy provide an increasingly robust source of new information inputs. This reduces the risk of lacking resources necessary to create new expressions or find out new things, and renders more robust the freedom to act without being susceptible to constraint from someone who holds asymmetrically greater power over the information resources one needs. As to information, then, we can say with a high degree of confidence that a more expansive commons improves individual autonomy, while enclosure of the public domain undermines it. This is less determinate with communications systems. Because computers and network connections are rival goods, there is less certainty that a commons will deliver the required resources. Under present conditions, a mixture of commons-based and proprietary communications systems is likely to improve autonomy. If, however, technological and social conditions change so that, for example, sharing on the model of peer-to-peer networks, distributed computation, or wireless mesh networks will be able to offer as dependable a set of communications and computation resources as the Web offers information and knowledge resources, the relative attractiveness of commons-oriented communications policies will increase from the perspective of autonomy. +={autonomy:information environment, structure of;individual autonomy:information environment, structure of;network topology:autonomy and;structure of network:autonomy and;topology, network:autonomy and} + +% watch may belong only to next section, if so remove + +2~ AUTONOMY AND THE INFORMATION ENVIRONMENT +={autonomy:information environment, structure of+24;individual autonomy:information environment, structure of+24;network topology:autonomy and+24;structure of network:autonomy and+24;topology, network:autonomy and+24} + +The structure of our information environment is constitutive of our autonomy, not only functionally significant to it. While the capacity to act free of constraints is most immediately and clearly changed by the networked information economy, information plays an even more foundational role in our very capacity to make and pursue life plans that can properly be called our own. A fundamental requirement of self-direction is the capacity to perceive the state of the world, to conceive of available options for action, to connect actions to consequences, to evaluate alternative outcomes, and to ,{[pg 147]}, decide upon and pursue an action accordingly. Without these, no action, even if mechanically self-directed in the sense that my brain consciously directs my body to act, can be understood as autonomous in any normatively interesting sense. All of the components of decision making prior to action, and those actions that are themselves communicative moves or require communication as a precondition to efficacy, are constituted by the information and communications environment we, as agents, occupy. Conditions that cause failures at any of these junctures, which place bottlenecks, failures of communication, or provide opportunities for manipulation by a gatekeeper in the information environment, create threats to the autonomy of individuals in that environment. The shape of the information environment, and the distribution of power within it to control information flows to and from individuals, are, as we have seen, the contingent product of a combination of technology, economic behavior, social patterns, and institutional structure or law. + +In 1999, Cisco Systems issued a technical white paper, which described a new router that the company planned to sell to cable broadband providers. In describing advantages that these new "policy routers" offer cable providers, the paper explained that if the provider's users want to subscribe to a service that "pushes" information to their computer: "You could restrict the incoming push broadcasts as well as subscribers' outgoing access to the push site to discourage its use. At the same time, you could promote your own or a partner's services with full speed features to encourage adoption of your services."~{ White Paper, "Controlling Your Network, A Must for Cable Operators" (1999), http:// www.cptech.org/ecom/openaccess/cisco1.html. }~ +={access:systematically blocked by policy routers+3;blocked access:autonomy and+7|policy routers+3;capacity:policy routers+3;Cisco policy routers+3;culture:shaping perceptions of others+7;information flow:controlling with policy routers+3;information production inputs:systematically blocked by policy routers+3;inputs to production:systematically blocked by policy routers+3;manipulating perceptions of others+7;perceptions of others, shaping+7;policy routers+3;production inputs:systematically blocked by policy routers+3;routers, controlling information flow with+3;shaping perceptions of others+7} + +In plain English, the broadband provider could inspect the packets flowing to and from a customer, and decide which packets would go through faster and more reliably, and which would slow down or be lost. Its engineering purpose was to improve quality of service. However, it could readily be used to make it harder for individual users to receive information that they want to subscribe to, and easier for them to receive information from sites preferred by the provider--for example, the provider's own site, or sites of those who pay the cable operator for using this function to help "encourage" users to adopt their services. There are no reports of broadband providers using these capabilities systematically. But occasional events, such as when Canada's second largest telecommunications company blocked access for all its subscribers and those of smaller Internet service providers that relied on its network to the website of the Telecommunications Workers Union in 2005, suggest that the concern is far from imaginary. ,{[pg 148]}, + +It is fairly clear that the new router increases the capacity of cable operators to treat their subscribers as objects, and to manipulate their actions in order to make them act as the provider wills, rather than as they would have had they had perfect information. It is less obvious whether this is a violation of, or a decrease in, the autonomy of the users. At one extreme, imagine the home as a black box with no communications capabilities save one--the cable broadband connection. Whatever comes through that cable is, for all practical purposes, "the state of the world," as far as the inhabitants of that home know. In this extreme situation, the difference between a completely neutral pipe that carries large amounts of information indiscriminately, and a pipe finely controlled by the cable operator is a large one, in terms of the autonomy of the home's inhabitants. If the pipe is indiscriminate, then the choices of the users determine what they know; decisions based on that knowledge can be said to be autonomous, at least to the extent that whether they are or are not autonomous is a function of the state of the agent's knowledge when forming a decision. If the pipe is finely controlled and purposefully manipulated by the cable operator, by contrast, then decisions that individuals make based on the knowledge they acquire through that pipe are substantially a function of the choices of the controller of the pipe, not of the users. At the other extreme, if each agent has dozens of alternative channels of communication to the home, and knows how the information flow of each one is managed, then the introduction of policy routers into one or some of those channels has no real implications for the agent's autonomy. While it may render one or more channels manipulable by their provider, the presence of alternative, indiscriminate channels, on the one hand, and of competition and choice among various manipulated channels, on the other hand, attenuates the extent to which the choices of the provider structure the universe of information within which the individual agent operates. The provider no longer can be said to shape the individual's choices, even if it tries to shape the information environment observable through its channel with the specific intent of manipulating the actions of users who view the world through its pipe. With sufficient choice among pipes, and sufficient knowledge about the differences between pipes, the very choice to use the manipulated pipe can be seen as an autonomous act. The resulting state of knowledge is self-selected by the user. Even if that state of knowledge then is partial and future actions constrained by it, the limited range of options is itself an expression of the user's autonomy, not a hindrance on it. For example, consider the following: Odysseus and his men mix different ,{[pg 149]}, forms of freedom and constraint in the face of the Sirens. Odysseus maintains his capacity to acquire new information by leaving his ears unplugged, but binds himself to stay on the ship by having his men tie him to the mast. His men choose the same course at the same time, but bind themselves to the ship by having Odysseus stop their ears with wax, so that they do not get the new information--the siren songs--that might change their minds and cause them not to stay the course. Both are autonomous when they pass by the Sirens, though both are free only because of their current incapacity. Odysseus's incapacity to jump into the water and swim to the Sirens and his men's incapacity to hear the siren songs are a result of their autonomously chosen past actions. + +The world we live in is neither black box nor cornucopia of well-specified communications channels. However, characterizing the range of possible configurations of the communications environment we occupy as lying on a spectrum from one to the other provides us with a framework for describing the degree to which actual conditions of a communications environment are conducive to individual autonomy. More important perhaps, it allows us to characterize policy and law that affects the communications environment as improving or undermining individual autonomy. Law can affect the range of channels of communications available to individuals, as well as the rules under which they are used. How many communications channels and sources of information can an individual receive? How many are available for him or her to communicate with others? Who controls these communications channels? What does control over the communications channels to an agent entail? What can the controller do, and what can it not? All of these questions are the subject of various forms of policy and law. Their implications affect the degree of autonomy possessed by individuals operating with the institutional-technical-economic framework thus created. + +There are two primary types of effects that information law can have on personal autonomy. The first type is concerned with the relative capacity of some people systematically to constrain the perceptions or shape the preferences of others. A law that systematically gives some people the power to control the options perceived by, or the preferences of, others, is a law that harms autonomy. Government regulation of the press and its propaganda that attempts to shape its subjects' lives is a special case of this more general concern. This concern is in some measure quantitative, in the sense that a greater degree of control to which one is subject is a greater offense to autonomy. More fundamentally, a law that systematically makes one adult ,{[pg 150]}, susceptible to the control of another offends the autonomy of the former. Law has created the conditions for one person to act upon another as an object. This is the nonpragmatic offense to autonomy committed by abortion regulations upheld in /{Planned Parenthood v. Casey}/ --such as requirements that women who seek abortions listen to lectures designed to dissuade them. These were justified by the plurality there, not by the claim that they did not impinge on a woman's autonomy, but that the state's interest in the potential life of a child trumps the autonomy of the pregnant woman. +={information production inputs:propaganda;inputs to production:propaganda;manipulating perceptions of others:with propaganda;perceptions of others, shaping:with propaganda;production inputs:propaganda;propaganda;shaping perceptions of others:with propaganda} + +The second type of effect that law can have on autonomy is to reduce significantly the range and variety of options open to people in society generally, or to certain classes of people. This is different from the concern with government intervention generally. It is not focused on whether the state prohibits these options, but only on whether the effect of the law is to remove options. It is less important whether this effect is through prohibition or through a set of predictable or observable behavioral adaptations among individuals and organizations that, as a practical matter, remove these options. I do not mean to argue for the imposition of restraints, in the name of autonomy, on any lawmaking that results in a removal of any single option, irrespective of the quantity and variety of options still open. Much of law does that. Rather, the autonomy concern is implicated by laws that systematically and significantly reduce the number, and more important, impoverish the variety, of options open to people in the society for which the law is passed. +={behavior:number and variety of options+2;diversity:of behavioral options+2;freedom:behavioral options+2;number of behavioral options+2;options, behavioral+2;variety of behavioral options+2} + +"Number and variety" is intended to suggest two dimensions of effect on the options open to an individual. The first is quantitative. For an individual to author her own life, she must have a significant set of options from which to choose; otherwise, it is the choice set--or whoever, if anyone, made it so--and not the individual, that is governing her life. This quantitative dimension, however, does not mean that more choices are always better, from the individual's perspective. It is sufficient that the individual have some adequate threshold level of options in order for him or her to exercise substantive self-authorship, rather than being authored by circumstances. Beyond that threshold level, additional options may affect one's welfare and success as an autonomous agent, but they do not so constrain an individual's choices as to make one not autonomous. Beyond quantitative adequacy, the options available to an individual must represent meaningfully different paths, not merely slight variations on a theme. Qualitatively, autonomy requires the availability of options in whose adoption or rejection the individual ,{[pg 151]}, can practice critical reflection and life choices. In order to sustain the autonomy of a person born and raised in a culture with a set of socially embedded conventions about what a good life is, one would want a choice set that included at least some unconventional, non-mainstream, if you will, critical options. If all the options one has--even if, in a purely quantitative sense, they are "adequate"--are conventional or mainstream, then one loses an important dimension of self-creation. The point is not that to be truly autonomous one necessarily must be unconventional. Rather, if self-governance for an individual consists in critical reflection and re-creation by making choices over the course of his life, then some of the options open must be different from what he would choose simply by drifting through life, adopting a life plan for no reason other than that it is accepted by most others. A person who chooses a conventional life in the presence of the option to live otherwise makes that conventional life his or her own in a way that a person who lives a conventional life without knowing about alternatives does not. + +As long as our autonomy analysis of information law is sensitive to these two effects on information flow to, from, and among individuals and organizations in the regulated society, it need not conflict with the concerns of those who adopt the formal conception of autonomy. It calls for no therapeutic agenda to educate adults in a wide range of options. It calls for no one to sit in front of educational programs. It merely focuses on two core effects that law can have through the way it structures the relationships among people with regard to the information environment they occupy. If a law--passed for any reason that may or may not be related to autonomy concerns--creates systematic shifts of power among groups in society, so that some have a greater ability to shape the perceptions of others with regard to available options, consequences of action, or the value of preferences, then that law is suspect from an autonomy perspective. It makes the choices of some people less their own and more subject to manipulation by those to whom the law gives the power to control perceptions. Furthermore, a law that systematically and severely limits the range of options known to individuals is one that imposes a normative price, in terms of autonomy, for whatever value it is intended to deliver. As long as the focus of autonomy as an institutional design desideratum is on securing the best possible information flow to the individual, the designer of the legal structure need not assume that individuals are not autonomous, or have failures of autonomy, in order to serve autonomy. All the designer need assume is that individuals ,{[pg 152]}, will not act in order to optimize the autonomy of their neighbors. Law then responds by avoiding institutional designs that facilitate the capacity of some groups of individuals to act on others in ways that are systematically at the expense of the ability of those others to control their own lives, and by implementing policies that predictably diversify the set of options that all individuals are able to see as open to them. + +Throughout most of the 1990s and currently, communications and information policy around the globe was guided by a wish to "let the private sector lead," interpreted in large measure to mean that various property and property-like regulatory frameworks should be strengthened, while various regulatory constraints on property-like rights should be eased. The drive toward proprietary, market-based provisioning of communications and information came from disillusionment with regulatory systems and state-owned communications networks. It saw the privatization of national postal, telephone, and telegraph authorities (PTTs) around the world. Even a country with a long tradition of state-centric communications policy, like France, privatized much of its telecommunications systems. In the United States, this model translated into efforts to shift telecommunications from the regulated monopoly model it followed throughout most of the twentieth century to a competitive market, and to shift Internet development from being primarily a government-funded exercise, as it had been from the late 1960s to the mid 1990s, to being purely private property, market based. This model was declared in the Clinton administration's 1993 National Information Infrastructure: Agenda for Action, which pushed for privatization of Internet deployment and development. It was the basis of that administration's 1995 White Paper on Intellectual Property, which mapped the most aggressive agenda ever put forward by any American administration in favor of perfect enclosure of the public domain; and it was in those years when the Federal Communications Commission (FCC) first implemented spectrum auctions aimed at more thorough privatization of wireless communications in the United States. The general push for stronger intellectual property rights and more marketcentric telecommunications systems also became a central tenet of international trade regimes, pushing similar policies in smaller and developing economies. +={commons:wireless communications as+3;privatization:of communications and information systems+3;wireless communications:privatization vs. commons+3} + +The result of the push toward private provisioning and deregulation has led to the emergence of a near-monopolistic market structure for wired physical broadband services. By the end of 2003, more than 96 percent of homes and small offices in the United States that had any kind of "high-speed" ,{[pg 153]}, Internet services received their service from either their incumbent cable operator or their incumbent local telephone company. If one focuses on the subset of these homes and offices that get service that provides more substantial room for autonomous communicative action--that is, those that have upstream service at high-speed, enabling them to publish and participate in online production efforts and not simply to receive information at high speeds--the picture is even more dismal. Less than 2 percent of homes and small offices receive their broadband connectivity from someone other than their cable carrier or incumbent telephone carrier. More than 83 percent of these users get their access from their cable operator. Moreover, the growth rate in adoption of cable broadband and local telephone digital subscriber line (DSL) has been high and positive, whereas the growth rate of the few competing platforms, like satellite broadband, has been stagnant or shrinking. The proprietary wired environment is gravitating toward a high-speed connectivity platform that will be either a lopsided duopoly, or eventually resolve into a monopoly platform.~{ Data are all based on FCC Report on High Speed Services, Appendix to Fourth 706 Report NOI (Washington, DC: Federal Communications Commission, December 2003). }~ These owners are capable, both technically and legally, of installing the kind of policy routers with which I opened the discussion of autonomy and information law--routers that would allow them to speed up some packets and slow down or reject others in ways intended to shape the universe of information available to users of their networks. +={broadband networks:market structure of;monopoly:wired environment as;wired communications:market structure of;proprietary rights:wireless networks+2} + +The alternative of building some portions of our telecommunications and information production and exchange systems as commons was not understood in the mid-1990s, when the policy that resulted in this market structure for communications was developed. As we saw in chapter 3, however, wireless communications technology has progressed to the point where it is now possible for users to own equipment that cooperates in mesh networks to form a "last-mile" infrastructure that no one other than the users own. Radio networks can now be designed so that their capital structure more closely approximates the Internet and personal computer markets, bringing with it a greater scope for commons-based peer production of telecommunications infrastructure. Throughout most of the twentieth century, wireless communications combined high-cost capital goods (radio transmitters and antennae towers) with cheaper consumer goods (radio receivers), using regulated proprietary infrastructure, to deliver a finished good of wireless communications on an industrial model. Now WiFi is marking the possibility of an inversion of the capital structure of wireless communication. We see end-user equipment manufacturers like Intel, Cisco, and others producing ,{[pg 154]}, and selling radio "transceivers" that are shareable goods. By using ad hoc mesh networking techniques, some early versions of which are already being deployed, these transceivers allow their individual owners to cooperate and coprovision their own wireless communications network, without depending on any cable carrier or other wired provider as a carrier of last resort. Almost the entire debate around spectrum policy and the relative merits of markets and commons in wireless policy is conducted today in terms of efficiency and innovation. A common question these days is which of the two approaches will lead to greater growth of wireless communications capacity and will more efficiently allocate the capacity we already have. I have contributed my fair share of this form of analysis, but the question that concerns us here is different. We must ask what, if any, are the implications of the emergence of a feasible, sustainable model of a commons-based physical infrastructure for the first and last mile of the communications environment, in terms of individual autonomy? +={efficiency of information regulation:wireless communications policy;inefficiency of information regulation:wireless communications policy;innovation:wireless communications policy;proprietary rights:wireless communications policy;reallocation:wireless communications policy} + +The choice between proprietary and commons-based wireless data networks takes on new significance in light of the market structure of the wired network, and the power it gives owners of broadband networks to control the information flow into the vast majority of homes. Commons-based wireless systems become the primary legal form of communications capacity that does not systematically subject its users to manipulation by an infrastructure owner. + +Imagine a world with four agents--A, B, C, and D--connected to each other by a communications network. Each component, or route, of the network could be owned or unowned. If all components are unowned, that is, are organized as a commons, each agent has an equal privilege to use any component of the network to communicate with any other agent. If all components are owned, the owner of any network component can deny to any other agent use of that network component to communicate with anyone else. This translates in the real world into whether or not there is a "spectrum owner" who "owns" the link between any two users, or whether the link is simply a consequence of the fact that two users are communicating with each other in a way that no one has a right to prevent them from doing. + +In this simple model, if the network is unowned, then for any communication all that is required is a willing sender and a willing recipient. No third agent gets a say as to whether any other pair will communicate with each other. Each agent determines independently of the others whether to ,{[pg 155]}, participate in a communicative exchange, and communication occurs whenever all its participants, and only they, agree to communicate with each other. For example, A can exchange information with B, as long as B consents. The only person who has a right to prevent A from receiving information from, or sending information to, B, is B, in the exercise of B's own autonomous choice whether to change her information environment. Under these conditions, neither A nor B is subject to control of her information environment by others, except where such control results from denying her the capacity to control the information environment of another. If all network components are owned, on the other hand, then for any communication there must be a willing sender, a willing recipient, and a willing infrastructure owner. In a pure property regime, infrastructure owners have a say over whether, and the conditions under which, others in their society will communicate with each other. It is precisely the power to prevent others from communicating that makes infrastructure ownership a valuable enterprise: One can charge for granting one's permission to communicate. For example, imagine that D owns all lines connecting A to B directly or through D, and C owns all lines connecting A or B to C. As in the previous scenario, A wishes to exchange information with B. Now, in addition to B, A must obtain either C's or D's consent. A now functions under two distinct types of constraint. The first, as before, is a constraint imposed by B's autonomy: A cannot change B's information environment (by exchanging information with her) without B's consent. The second constraint is that A must persuade an owner of whatever carriage medium connects A to B to permit A and B to communicate. The communication is not sent to or from C or D. It does not change C's or D's information environment, and that is not A's intention. C and D's ability to consent or withhold consent is not based on the autonomy principle. It is based, instead, on an instrumental calculus: namely, that creating such property rights in infrastructure will lead to the right incentives for the deployment of infrastructure necessary for A and B to communicate in the first place. +={computers:infrastructure ownership+1;hardware:infrastructure ownership+1;permission to communicate+1;personal computers:infrastructure ownership+1;physical machinery and computers:infrastructure ownership+1;proprietary rights:infrastructure ownership+1;information sharing:infrastructure ownership} + +Now imagine that D owns the entire infrastructure. If A wants to get information from B or to communicate to C in order to persuade C to act in a way that is beneficial to A, A needs D's permission. D may grant or withhold permission, and may do so either for a fee or upon the imposition of conditions on the communication. Most significantly, D can choose to prevent anyone from communicating with anyone else, or to expose each participant to the communications of only some, but not all, members of ,{[pg 156]}, society. This characteristic of her ownership gives D the power to shape A's information environment by selectively exposing A to information in the form of communications from others. Most commonly, we might see this where D decides that B will pay more if all infrastructure is devoted to permitting B to communicate her information to A and C, rather than any of it used to convey A's statements to C. D might then refuse to carry A's message to C and permit only B to communicate to A and C. The point is that from A's perspective, A is dependent upon D's decisions as to what information can be carried on the infrastructure, among whom, and in what directions. To the extent of that dependence, A's autonomy is compromised. We might call the requirement that D can place on A as a precondition to using the infrastructure an "influence exaction." +={access:influence exaction+1;blocked access:influence exaction+1;culture:influence exaction+1;influence exaction+1;manipulating perceptions of others:influence exaction+1;perceptions of others, shaping:influence exaction+1;shaping perceptions of others:influence exaction+1} + +The magnitude of the negative effect on autonomy, or of the influence exaction, depends primarily on (a) the degree to which it is hard or easy to get around D's facility, and (b) the degree of transparency of the exaction. Compare, for example, Cisco's policy router for cable broadband, which allows the cable operator to speed up and slow down packets based on its preferences, to Amazon's brief experiment in 1998-1999 with accepting undisclosed payments from publishers in exchange for recommending their books. If a cable operator programs its routers to slow down packets of competitors, or of information providers that do not pay, this practice places a significant exaction on users. First, the exaction is entirely nontransparent. There are many reasons that different sites load at different speeds, or even fail to load altogether. Users, the vast majority of whom are unaware that the provider could, if it chose, regulate the flow of information to them, will assume that it is the target site that is failing, not that their own service provider is manipulating what they can see. Second, there is no genuine work-around. Cable broadband covers roughly two-thirds of the home market, in many places without alternative; and where there is an alternative, there is only one--the incumbent telephone company. Without one of these noncompetitive infrastructure owners, the home user has no broadband access to the Internet. In Amazon's case, the consumer outrage when the practice was revealed focused on the lack of transparency. Users had little objection to clearly demarcated advertisement. The resistance was to the nontransparent manipulation of the recommendation system aimed at causing the consumers to act in ways consistent with Amazon's goals, rather than their own. In that case, however, there were alternatives. There are many different places from which to find book reviews and recommendations, and ,{[pg 157]}, at the time, barnesandnoble.com was already available as an online bookseller--and had not significantly adopted similar practices. The exaction was therefore less significant. Moreover, once the practice was revealed, Amazon publicly renounced it and began to place advertisements in a clearly recognizable separate category. The lesson was not lost on others. When Google began at roughly the same time as a search engine, it broke with the then common practice of selling search-result location. When the company later introduced advertised links, it designed its interface to separate out clearly the advertisements from the algorithm-based results, and to give the latter more prominent placement than the former. This does not necessarily mean that any search engine that accepts payments for linking is necessarily bad. A search engine like Overture, which explicitly and publicly returns results ranked according to which, among the sites retrieved, paid Overture the most, has its own value for consumers looking for commercial sites. A transparent, nonmonopolistic option of this sort increases, rather than decreases, the freedom of users to find the information they want and act on it. The problem would be with search engines that mix the two strategies and hide the mix, or with a monopolistic search engine. +={access:systematically blocked by policy routers;blocked access:policy routers;capacity:policy routers;Cisco policy routers:influence exaction;information flow:controlling with policy routers;information production inputs:systematically blocked by policy routers;inputs to production:systematically blocked by policy routers;policy routers:influence exaction;production inputs:systematically blocked by policy routers;routers, controlling information flow with:influence exaction} + +Because of the importance of the possibility to work around the owned infrastructure, the degree of competitiveness of any market in such infrastructure is important. Before considering the limits of even competitive markets by comparison to commons, however, it is important to recognize that a concern with autonomy provides a distinct justification for the policy concern with media concentration. To understand the effects of concentration, we can think of freedom from constraint as a dimension of welfare. Just as we have no reason to think that in a concentrated market, total welfare, let alone consumer welfare, will be optimal, we also have no reason to think that a component of welfare--freedom from constraint as a condition to access one's communicative environment--will be optimal. Moreover, when we use a "welfare" calculus as a metaphor for the degree of autonomy users have in the system, we must optimize not total welfare, as we do in economic analysis, but only what in the metaphorical calculus would count as "consumer surplus." In the domain of influence and autonomy, only "consumer surplus" counts as autonomy enhancing. "Producer surplus," the degree of successful imposition of influence on others as a condition of service, translates in an autonomy calculus into control exerted by some people (providers) over others (consumers). It reflects the successful negation of autonomy. The monopoly case therefore presents a new normative ,{[pg 158]}, dimension of the well-known critiques of media concentration. Why, however, is this not solely an analysis of media concentration? Why does a competitive market in infrastructure not solve the autonomy deficit of property? +={accreditation:concentration of mass-media power;allocating excess capacity;capacity:sharing;community clusters:communications infrastructure+3;concentration of mass-media power;excess capacity, sharing;filtering:concentration of mass-media power;first-best preferences, mass media and:concentration of mass-media power;human welfare:freedom from constraint+2;media concentration;reallocating excess capacity;relevance filtering:concentration of mass-media power;sharing:excess capacity;welfare:freedom from constraint+2;processors. See computer producer surplus} + +If we make standard assumptions of perfectly competitive markets and apply them to our A-B-D example, one would think that the analysis must change. D no longer has monopoly power. We would presume that the owners of infrastructure would be driven by competition to allocate infrastructure to uses that users value most highly. If one owner "charges" a high price in terms of conditions imposed on users, say to forgo receiving certain kinds of speech uncongenial to the owner, then the users will go to a competitor who does not impose that condition. This standard market response is far from morally irrelevant if one is concerned with autonomy. If, in fact, every individual can choose precisely the package of influence exactions and the cash-to-influence trade-off under which he or she is willing to communicate, then the autonomy deficit that I suggest is created by property rights in communications infrastructure is minimal. If all possible degrees of freedom from the influence of others are available to autonomous individuals, then respecting their choices, including their decisions to subject themselves to the influence of others in exchange for releasing some funds so they are available for other pursuits, respects their autonomy. +={access:influence exaction+2;blocked access:influence exaction+1;Cisco policy routers:influence exaction+2;culture:influence exaction+2;influence exaction+2;manipulating perceptions of others:influence exaction+2;perceptions of others, shaping:influence exaction+2;policy routers:influence exaction+2;routers, controlling information flow with:influence exaction+2;shaping perceptions of others:influence exaction+2} + +Actual competition, however, will not eliminate the autonomy deficit of privately owned communications infrastructure, for familiar reasons. The most familiar constraint on the "market will solve it" hunch is imposed by transaction costs--in particular, information-gathering and negotiation costs. Influence exactions are less easily homogenized than prices expressed in currency. They will therefore be more expensive to eliminate through transactions. Some people value certain kinds of information lobbed at them positively; others negatively. Some people are more immune to suggestion, others less. The content and context of an exaction will have a large effect on its efficacy as a device for affecting the choices of the person subject to its influence, and these could change from communication to communication for the same person, let alone for different individuals. Both users and providers have imperfect information about the users' susceptibility to manipulated information flows; they have imperfect information about the value that each user would place on being free of particular exactions. Obtaining the information necessary to provide a good fit for each consumer's preferences regarding the right influence-to-cash ratio for a given service ,{[pg 159]}, would be prohibitively expensive. Even if the information were obtained, negotiating the precise cash-to-influence trade-off would be costly. Negotiation also may fail because of strategic behavior. The consumer's ideal outcome is to labor under an exaction that is ineffective. If the consumer can reduce the price by submitting to constraints on communication that would affect an average consumer, but will not change her agenda or subvert her capacity to author her life, she has increased her welfare without compromising her autonomy. The vendor's ideal outcome, however, is that the influence exaction be effective--that it succeed in changing the recipient's preferences or her agenda to fit those of the vendor. The parties, therefore, will hide their true beliefs about whether a particular condition to using proprietary infrastructure is of a type that is likely to be effective at influencing the particular recipient. Under anything less than a hypothetical and practically unattainable perfect market in communications infrastructure services, users of a proprietary infrastructure will face a less-than-perfect menu of influence exactions that they must accept before they can communicate using owned infrastructure. +={policy:property-based+3;privatization:of communications and information systems+3} + +Adopting a regulatory framework under which all physical means of communication are based on private property rights in the infrastructure will therefore create a cost for users, in terms of autonomy. This cost is the autonomy deficit of exclusive reliance on proprietary models. If ownership of infrastructure is concentrated, or if owners can benefit from exerting political, personal, cultural, or social influence over others who seek access to their infrastructure, they will impose conditions on use of the infrastructure that will satisfy their will to exert influence. If agents other than owners (advertisers, tobacco companies, the U.S. drug czar) value the ability to influence users of the infrastructure, then the influence-exaction component of the price of using the infrastructure will be sold to serve the interests of these third parties. To the extent that these influence exactions are effective, a pure private-property regime for infrastructure allows owners to constrain the autonomy of users. The owners can do this by controlling and manipulating the users' information environment to shape how they perceive their life choices in ways that make them more likely to act in a manner that the owners prefer. + +The traditional progressive or social-democratic response to failures of property-based markets has been administrative regulation. In the area of communications, these responses have taken the form of access regulations-- ranging from common carriage to more limited right-of-reply, fairness ,{[pg 160]}, doctrine-type regulations. Perfect access regulation--in particular, common-carrier obligations--like a perfectly competitive market, could in principle alleviate the autonomy deficit of property. Like markets, however, actual regulation that limits the powers that go with property in infrastructure suffers from a number of limitations. First, the institutional details of the common-carriage regime can skew incentives for what types of communications will be available, and with what degree of freedom. If we learned one thing from the history of American communications policy in the twentieth century, it is that regulated entities are adept at shaping their services, pricing, and business models to take advantage of every weakness in the common-carriage regulatory system. They are even more adept at influencing the regulatory process to introduce lucrative weaknesses into the regulatory system. At present, cable broadband has succeeded in achieving a status almost entirely exempt from access requirements that might mitigate its power to control how the platform is used, and broadband over legacy telephone systems is increasingly winning a parallel status of unregulated semi-monopoly. Second, the organization that owns the infrastructure retains the same internal incentives to control content as it would in the absence of common carriage and will do so to the extent that it can sneak by any imperfections in either the carriage regulations or their enforcement. Third, as long as the network is built to run through a central organizational clearinghouse, that center remains a potential point at which regulators can reassert control or delegate to owners the power to prevent unwanted speech by purposefully limiting the scope of the common-carriage requirements. +={common-carriage regulatory system} + +As a practical matter, then, if all wireless systems are based on property, just like the wired systems are, then wireless will offer some benefits through the introduction of some, albeit imperfect, competition. However, it will not offer the autonomy-enhancing effects that a genuine diversity of constraint can offer. If, on the other hand, policies currently being experimented with in the United States do result in the emergence of a robust, sustainable wireless communications infrastructure, owned and shared by its users and freely available to all under symmetric technical constraints, it will offer a genuinely alternative communications platform. It may be as technically good as the wired platforms for all users and uses, or it may not. Nevertheless, because of its radically distributed capitalization, and its reliance on commons rendered sustainable by equipment-embedded technical protocols, rather than on markets that depend on institutionally created asymmetric power over communications, a commons-based wireless system will offer an ,{[pg 161]}, infrastructure that operates under genuinely different institutional constraints. Such a system can become an infrastructure of first and last resort for uses that would not fit the constraints of the proprietary market, or for users who find the price-to-influence exaction bundles offered in the market too threatening to their autonomy. + +The emerging viability of commons-based strategies for the provisioning of communications, storage, and computation capacity enables us to take a practical, real world look at the autonomy deficit of a purely property-based communications system. As we compare property to commons, we see that property, by design, introduces a series of legal powers that asymmetrically enable owners of infrastructure to exert influence over users of their systems. This asymmetry is necessary for the functioning of markets. Predictably and systematically, however, it allows one group of actors--owners--to act upon another group of actors--consumers--as objects of manipulation. No single idiom in contemporary culture captures this characteristic better than the term "the market in eyeballs," used to describe the market in advertising slots. Commons, on the other hand, do not rely on asymmetric constraints. They eliminate points of asymmetric control over the resources necessary for effective communication, thereby eliminating the legal bases of the objectification of others. These are not spaces of perfect freedom from all constraints. However, the constraints they impose are substantively different from those generated by either the property system or by an administrative regulatory system. Their introduction alongside proprietary networks therefore diversifies the constraints under which individuals operate. By offering alternative transactional frameworks for alternative information flows, these networks substantially and qualitatively increase the freedom of individuals to perceive the world through their own eyes, and to form their own perceptions of what options are open to them and how they might evaluate alternative courses of action. + +2~ AUTONOMY, MASS MEDIA, AND NONMARKET INFORMATION PRODUCERS + +The autonomy deficit of private communications and information systems is a result of the formal structure of property as an institutional device and the role of communications and information systems as basic requirements in the ability of individuals to formulate purposes and plan actions to fit their lives. The gains flow directly from the institutional characteristics of ,{[pg 162]}, commons. The emergence of the networked information economy makes one other important contribution to autonomy. It qualitatively diversifies the information available to individuals. Information, knowledge, and culture are now produced by sources that respond to a myriad of motivations, rather than primarily the motivation to sell into mass markets. Production is organized in any one of a myriad of productive organizational forms, rather than solely the for-profit business firm. The supplementation of the profit motive and the business organization by other motivations and organizational forms--ranging from individual play to large-scale peer-production projects--provides not only a discontinuously dramatic increase in the number of available information sources but, more significantly, an increase in available information sources that are qualitatively different from others. + +Imagine three storytelling societies: the Reds, the Blues, and the Greens. Each society follows a set of customs as to how they live and how they tell stories. Among the Reds and the Blues, everyone is busy all day, and no one tells stories except in the evening. In the evening, in both of these societies, everyone gathers in a big tent, and there is one designated storyteller who sits in front of the audience and tells stories. It is not that no one is allowed to tell stories elsewhere. However, in these societies, given the time constraints people face, if anyone were to sit down in the shade in the middle of the day and start to tell a story, no one else would stop to listen. Among the Reds, the storyteller is a hereditary position, and he or she alone decides which stories to tell. Among the Blues, the storyteller is elected every night by simple majority vote. Every member of the community is eligible to offer him- or herself as that night's storyteller, and every member is eligible to vote. Among the Greens, people tell stories all day, and everywhere. Everyone tells stories. People stop and listen if they wish, sometimes in small groups of two or three, sometimes in very large groups. Stories in each of these societies play a very important role in understanding and evaluating the world. They are the way people describe the world as they know it. They serve as testing grounds to imagine how the world might be, and as a way to work out what is good and desirable and what is bad and undesirable. The societies are isolated from each other and from any other source of information. + +Now consider Ron, Bob, and Gertrude, individual members of the Reds, Blues, and Greens, respectively. Ron's perception of the options open to him and his evaluation of these options are largely controlled by the hereditary storyteller. He can try to contact the storyteller to persuade him to tell ,{[pg 163]}, different stories, but the storyteller is the figure who determines what stories are told. To the extent that these stories describe the universe of options Ron knows about, the storyteller defines the options Ron has. The storyteller's perception of the range of options largely will determine the size and diversity of the range of options open to Ron. This not only limits the range of known options significantly, but it also prevents Ron from choosing to become a storyteller himself. Ron is subjected to the storyteller's control to the extent that, by selecting which stories to tell and how to tell them, the storyteller can shape Ron's aspirations and actions. In other words, both the freedom to be an active producer and the freedom from the control of another are constrained. Bob's autonomy is constrained not by the storyteller, but by the majority of voters among the Blues. These voters select the storyteller, and the way they choose will affect Bob's access to stories profoundly. If the majority selects only a small group of entertaining, popular, pleasing, or powerful (in some other dimension, like wealth or political power) storytellers, then Bob's perception of the range of options will be only slightly wider than Ron's, if at all. The locus of power to control Bob's sense of what he can and cannot do has shifted. It is not the hereditary storyteller, but rather the majority. Bob can participate in deciding which stories can be told. He can offer himself as a storyteller every night. He cannot, however, decide to become a storyteller independently of the choices of a majority of Blues, nor can he decide for himself what stories he will hear. He is significantly constrained by the preferences of a simple majority. Gertrude is in a very different position. First, she can decide to tell a story whenever she wants to, subject only to whether there is any other Green who wants to listen. She is free to become an active producer except as constrained by the autonomy of other individual Greens. Second, she can select from the stories that any other Green wishes to tell, because she and all those surrounding her can sit in the shade and tell a story. No one person, and no majority, determines for her whether she can or cannot tell a story. No one can unilaterally control whose stories Gertrude can listen to. And no one can determine for her the range and diversity of stories that will be available to her from any other member of the Greens who wishes to tell a story. + +The difference between the Reds, on the one hand, and the Blues or Greens, on the other hand, is formal. Among the Reds, only the storyteller may tell the story as a matter of formal right, and listeners only have a choice of whether to listen to this story or to no story at all. Among the ,{[pg 164]}, Blues and the Greens anyone may tell a story as a matter of formal right, and listeners, as a matter of formal right, may choose from whom they will hear. The difference between the Reds and the Blues, on the one hand, and the Greens, on the other hand, is economic. In the former, opportunities for storytelling are scarce. The social cost is higher, in terms of stories unavailable for hearing, or of choosing one storyteller over another. The difference between the Blues and the Greens, then, is not formal, but practical. The high cost of communication created by the Blues' custom of listening to stories only in the evening, in a big tent, together with everyone else, makes it practically necessary to select "a storyteller" who occupies an evening. Since the stories play a substantive role in individuals' perceptions of how they might live their lives, that practical difference alters the capacity of individual Blues and Greens to perceive a wide and diverse set of options, as well as to exercise control over their perceptions and evaluations of options open for living their lives and to exercise the freedom themselves to be storytellers. The range of stories Bob is likely to listen to, and the degree to which he can choose unilaterally whether he will tell or listen, and to which story, are closer, as a practical matter, to those of Ron than to those of Gertrude. Gertrude has many more stories and storytelling settings to choose from, and many more instances where she can offer her own stories to others in her society. She, and everyone else in her society, can be exposed to a wider variety of conceptions of how life can and ought to be lived. This wider diversity of perceptions gives her greater choice and increases her ability to compose her own life story out of the more varied materials at her disposal. She can be more self-authored than either Ron or Bob. This diversity replicates, in large measure, the range of perceptions of how one might live a life that can be found among all Greens, precisely because the storytelling customs make every Green a potential storyteller, a potential source of information and inspiration about how one might live one's life. +={diversity+5} + +All this could sound like a morality tale about how wonderfully the market maximizes autonomy. The Greens easily could sound like Greenbacks, rather than like environmentalists staking out public parks as information commons. However, this is not the case in the industrial information economy, where media markets have high entry barriers and large economies of scale. It is costly to start up a television station, not to speak of a network, a newspaper, a cable company, or a movie distribution system. It is costly to produce the kind of content delivered over these systems. Once production costs or the costs of laying a network are incurred, the additional marginal ,{[pg 165]}, cost of making information available to many users, or of adding users to the network, is much smaller than the initial cost. This is what gives information and cultural products and communications facilities supply-side economies of scale and underlies the industrial model of producing them. The result is that the industrial information economy is better stylized by the Reds and Blues rather than by the Greens. While there is no formal limitation on anyone producing and disseminating information products, the economic realities limit the opportunities for storytelling in the mass-mediated environment and make storytelling opportunities a scarce good. It is very costly to tell stories in the mass-mediated environment. Therefore, most storytellers are commercial entities that seek to sell their stories to the audience. Given the discussion earlier in this chapter, it is fairly straightforward to see how the Greens represent greater freedom to choose to become an active producer of one's own information environment. It is similarly clear that they make it exceedingly difficult for any single actor to control the information flow to any other actor. We can now focus on how the story provides a way of understanding the justification and contours of the third focus of autonomy-respecting policy: the requirement that government not limit the quantity and diversity of information available. +={autonomy:mass media and+1;capital for production:production costs as limiting;commercial model of communication:autonomy and+1;constraints of information production, monetary:production costs as limiting;cost:of production, as limiting;individual autonomy:mass media and+1;industrial model of communication:autonomy and+1;institutional ecology of digital environment:autonomy and+1;monetary constraints on information production:production costs as limiting;money:cost of production as limiting;information production capital:production costs as limiting;physical capital for production:production costs as limiting;production capital:production costs as limiting;traditional model of communication:autonomy and+1;diversity:mass-mediated environments+1} + +The fact that our mass-mediated environment is mostly commercial makes it more like the Blues than the Reds. These outlets serve the tastes of the majority--expressed in some combination of cash payment and attention to advertising. I do not offer here a full analysis--covered so well by Baker in Media, Markets, and Democracy--as to why mass-media markets do not reflect the preferences of their audiences very well. Presented here is a tweak of an older set of analyses of whether monopoly or competition is better in mass-media markets to illustrate the relationship between markets, channels, and diversity of content. In chapter 6, I describe in greater detail the SteinerBeebe model of diversity and number of channels. For our purposes here, it is enough to note that this model shows how advertiser-supported media tend to program lowest-common-denominator programs, intended to "capture the eyeballs" of the largest possible number of viewers. These media do not seek to identify what viewers intensely want to watch, but tend to clear programs that are tolerable enough to viewers so that they do not switch off their television. The presence or absence of smaller-segment oriented television depends on the shape of demand in an audience, the number of channels available to serve that audience, and the ownership structure. The relationship between diversity of content and diversity of structure or ownership ,{[pg 166]}, is not smooth. It occurs in leaps. Small increases in the number of outlets continue to serve large clusters of low-intensity preferences--that is, what people find acceptable. A new channel that is added will more often try to take a bite out of a large pie represented by some lowest-commondenominator audience segment than to try to serve a new niche market. Only after a relatively high threshold number of outlets are reached do advertiser-supported media have sufficient reason to try to capture much smaller and higher-intensity preference clusters--what people are really interested in. The upshot is that if all storytellers in society are profit maximizing and operate in a market, the number of storytellers and venues matters tremendously for the diversity of stories told in a society. It is quite possible to have very active market competition in how well the same narrow set of stories are told, as opposed to what stories are told, even though there are many people who would rather hear different stories altogether, but who are in clusters too small, too poor, or too uncoordinated to persuade the storytellers to change their stories rather than their props. +={Baker, Edwin} + +The networked information economy is departing from the industrial information economy along two dimensions that suggest a radical increase in the number of storytellers and the qualitative diversity of stories told. At the simplest level, the cost of a channel is so low that some publication capacity is becoming available to practically every person in society. Ranging from an e-mail account, to a few megabytes of hosting capacity to host a subscriber's Web site, to space on a peer-to-peer distribution network available for any kind of file (like FreeNet or eDonkey), individuals are now increasingly in possession of the basic means necessary to have an outlet for their stories. The number of channels is therefore in the process of jumping from some infinitesimally small fraction of the population--whether this fraction is three networks or five hundred channels almost does not matter by comparison--to a number of channels roughly equal to the number of users. This dramatic increase in the number of channels is matched by the fact that the low costs of communications and production enable anyone who wishes to tell a story to do so, whether or not the story they tell will predictably capture enough of a paying (or advertising-susceptible) audience to recoup production costs. Self-expression, religious fervor, hobby, community seeking, political mobilization, any one of the many and diverse reasons that might drive us to want to speak to others is now a sufficient reason to enable us to do so in mediated form to people both distant and close. The basic filter of marketability has been removed, allowing anything ,{[pg 167]}, that emerges out of the great diversity of human experience, interest, taste, and expressive motivation to flow to and from everyone connected to everyone else. Given that all diversity within the industrial information economy needed to flow through the marketability filter, the removal of that filter marks a qualitative increase in the range and diversity of life options, opinions, tastes, and possible life plans available to users of the networked information economy. + +The image of everyone being equally able to tell stories brings, perhaps more crisply than any other image, two critical objections to the attractiveness of the networked information economy: quality and cacophony. The problem of quality is easily grasped, but is less directly connected to autonomy. Having many high school plays and pickup basketball games is not the same as having Hollywood movies or the National Basketball Association (NBA). The problem of quality understood in these terms, to the extent that the shift from industrial to networked information production in fact causes it, does not represent a threat to autonomy as much as a welfare cost of making the autonomy-enhancing change. More troubling from the perspective of autonomy is the problem of information overload, which is related to, but distinct from, production quality. The cornucopia of stories out of which each of us can author our own will only enhance autonomy if it does not resolve into a cacophony of meaningless noise. How, one might worry, can a system of information production enhance the ability of an individual to author his or her life, if it is impossible to tell whether this or that particular story or piece of information is credible, or whether it is relevant to the individual's particular experience? Will individuals spend all their time sifting through mounds of inane stories and fairy tales, instead of evaluating which life is best for them based on a small and manageable set of credible and relevant stories? None of the philosophical accounts of substantive autonomy suggests that there is a linearly increasing relationship between the number of options open to an individual--or in this case, perceivable by an individual--and that person's autonomy. Information overload and decision costs can get in the way of actually living one's autonomously selected life. + +The quality problem is often raised in public discussions of the Internet, and takes the form of a question: Where will high-quality information products, like movies, come from? This form of the objection, while common, is underspecified normatively and overstated descriptively. First, it is not at all clear what might be meant by "quality," insofar as it is a characteristic of ,{[pg 168]}, information, knowledge, and cultural production that is negatively affected by the shift from an industrial to a networked information economy. Chapter 2 explains that information has always been produced in various modalities, not only in market-oriented organizations and certainly not in proprietary strategies. Political theory is not "better" along any interesting dimension when written by someone aiming to maximize her own or her publisher's commercial profits. Most of the commercial, proprietary online encyclopedias are not better than /{Wikipedia}/ along any clearly observable dimension. Moreover, many information and cultural goods are produced on a relational model, rather than a packaged-goods model. The emergence of the digitally networked environment does not much change their economics or sustainability. Professional theatre that depends on live performances is an example, as are musical performances. To the extent, therefore, that the emergence of substantial scope for nonmarket, distributed production in a networked information economy places pressure on "quality," it is quality of a certain kind. The threatened desiderata are those that are uniquely attractive about industrially produced mass-market products. The high-production-cost Hollywood movie or television series are the threatened species. Even that species is not entirely endangered, and the threat varies for different industries, as explained in some detail in chapter 11. Some movies, particularly those currently made for video release only, may well, in fact, recede. However, truly high-production-value movies will continue to have a business model through release windows other than home video distribution. Independently, the pressure on advertising-supported television from multichannel video-- cable and satellite--on the other hand, is pushing for more low-cost productions like reality TV. That internal development in mass media, rather than the networked information economy, is already pushing industrial producers toward low-cost, low-quality productions. Moreover, as a large section of chapter 7 illustrates, peer production and nonmarket production are producing desirable public information--news and commentary--that offer qualities central to democratic discourse. Chapter 8 discusses how these two forms of production provide a more transparent and plastic cultural environment--both central to the individual's capacity for defining his or her goals and options. What emerges in the networked information environment, therefore, will not be a system for low-quality amateur mimicry of existing commercial products. What will emerge is space for much more expression, from diverse sources and of diverse qualities. Freedom--the freedom to speak, but also to be free from manipulation and to be cognizant ,{[pg 169]}, of many and diverse options--inheres in this radically greater diversity of information, knowledge, and culture through which to understand the world and imagine how one could be. +={high-production value content} + +Rejecting the notion that there will be an appreciable loss of quality in some absolute sense does not solve the deeper problem of information overload, or having too much information to be able to focus or act upon it. Having too much information with no real way of separating the wheat from the chaff forms what we might call the Babel objection. Individuals must have access to some mechanism that sifts through the universe of information, knowledge, and cultural moves in order to whittle them down to a manageable and usable scope. The question then becomes whether the networked information economy, given the human need for filtration, actually improves the information environment of individuals relative to the industrial information economy. There are three elements to the answer: First, as a baseline, it is important to recognize the power that inheres in the editorial function. The extent to which information overload inhibits autonomy relative to the autonomy of an individual exposed to a well-edited information flow depends on how much the editor who whittles down the information flow thereby gains power over the life of the user of the editorial function, and how he or she uses that power. Second, there is the question of whether users can select and change their editor freely, or whether the editorial function is bundled with other communicative functions and sold by service providers among which users have little choice. Finally, there is the understanding that filtration and accreditation are themselves information goods, like any other, and that they too can be produced on a commonsbased, nonmarket model, and therefore without incurring the autonomy deficit that a reintroduction of property to solve the Babel objection would impose. +={accreditation+8;Babel objection+9;filtering+8;information overload and Babel objection+9;relevance filtering+8} + +Relevance filtration and accreditation are integral parts of all communications. A communication must be relevant for a given sender to send to a given recipient and relevant for the recipient to receive. Accreditation further filters relevant information for credibility. Decisions of filtration for purposes of relevance and accreditation are made with reference to the values of the person filtering the information, not the values of the person receiving the information. For instance, the editor of a cable network newsmagazine decides whether a given story is relevant to send out. The owner of the cable system decides whether it is, in the aggregate, relevant to its viewers to see that newsmagazine on its system. Only if both so decide, does each viewer ,{[pg 170]}, get the residual choice of whether to view the story. Of the three decisions that must coincide to mark the newsmagazine as relevant to the viewer, only one is under the control of the individual recipient. And, while the editor's choice might be perceived in some sense as inherent to the production of the information, the cable operator's choice is purely a function of its role as proprietor of the infrastructure. The point to focus on is that the recipient's judgment is dependent on the cable operator's decision as to whether to release the program. The primary benefit of proprietary systems as mechanisms of avoiding the problem of information overload or the Babel objection is precisely the fact that the individual cannot exercise his own judgment as to all the programs that the cable operator--or other commercial intermediary between someone who makes a statement and someone who might receive it--has decided not to release. +={culture:shaping perceptions of others+1;manipulating perceptions of others+1;perceptions of others, shaping+1;shaping perceptions of others+1} + +As with any flow, control over a necessary passageway or bottleneck in the course of a communication gives the person controlling that point the power to direct the entire flow downstream from it. This power enables the provision of a valuable filtration service, which promises the recipient that he or she will not spend hours gazing at irrelevant materials. However, filtration only enhances the autonomy of users if the editor's notions of relevance and quality resemble those of the sender and the recipient. Imagine a recipient who really wants to be educated about African politics, but also likes sports. Under perfect conditions, he would seek out information on African politics most of the time, with occasional searches for information on sports. The editor, however, makes her money by selling advertising. For her, the relevant information is whatever will keep the viewer's attention most closely on the screen while maintaining a pleasantly acquisitive mood. Given a choice between transmitting information about famine in Sudan, which she worries will make viewers feel charitable rather than acquisitive, and transmitting a football game that has no similar adverse effects, she will prefer the latter. The general point should be obvious. For purposes of enhancing the autonomy of the user, the filtering and accreditation function suffers from an agency problem. To the extent that the values of the editor diverge from those of the user, an editor who selects relevant information based on her values and plans for the users does not facilitate user autonomy, but rather imposes her own preferences regarding what should be relevant to users given her decisions about their life choices. A parallel effect occurs with accreditation. An editor might choose to treat as credible a person whose views or manner of presentation draw audiences, rather than necessary ,{[pg 171]}, the wisest or best-informed of commentators. The wide range in quality of talking heads on television should suffice as an example. The Babel objection may give us good reason to pause before we celebrate the networked information economy, but it does not provide us with reasons to celebrate the autonomy effects of the industrial information economy. +={behavior:number and variety of options;blocked access:autonomy and+1;diversity:of behavioral options;freedom:behavioral options;options, behavioral;variety of behavioral options;number of behavioral options} + +The second component of the response to the Babel objection has to do with the organization of filtration and accreditation in the industrial information economy. The cable operator owns its cable system by virtue of capital investment and (perhaps) expertise in laying cables, hooking up homes, and selling video services. However, it is control over the pipeline into the home that gives it the editorial role in the materials that reach the home. Given the concentrated economics of cable systems, this editorial power is not easy to replace and is not subject to open competition. The same phenomenon occurs with other media that are concentrated and where the information production and distribution functions are integrated with relevance filtration and accreditation: from one-newspaper towns to broadcasters or cable broadband service providers. An edited environment that frees the individual to think about and choose from a small selection of information inputs becomes less attractive when the editor takes on that role as a result of the ownership of carriage media, a large printing press, or copyrights in existing content, rather than as a result of selection by the user as a preferred editor or filter. The existence of an editor means that there is less information for an individual to process. It does not mean that the values according to which the information was pared down are those that the user would have chosen absent the tied relationship between editing and either proprietary content production or carriage. +={accreditation:as distributed system+1;distributed filtering and accreditation+1;filtering:as distributed system+1;relevance filtering:as distributed system+1} + +Finally, and most important, just like any other form of information, knowledge, and culture, relevance and accreditation can be, and are, produced in a distributed fashion. Instead of relying on the judgment of a record label and a DJ of a commercial radio station for what music is worth listening to, users can compare notes as to what they like, and give music to friends whom they think will like it. This is the virtue of music file-sharing systems as distribution systems. Moreover, some of the most interesting experiments in peer production described in chapter 3 are focused on filtration. From the discussions of /{Wikipedia}/ to the moderation and metamoderation scheme of Slashdot, and from the sixty thousand volunteers that make up the Open Directory Project to the PageRank system used by Google, the means of filtering data are being produced within the networked information ,{[pg 172]}, economy using peer production and the coordinate patterns of nonproprietary production more generally. The presence of these filters provides the most important answer to the Babel objection. The presence of filters that do not depend on proprietary control, and that do not bundle proprietary content production and carriage services with filtering, offers a genuinely distinct approach toward presenting autonomous individuals with a choice among different filters that reflect genuinely diverse motivations and organizational forms of the providers. + +Beyond the specific efforts at commons-based accreditation and relevance filtration, we are beginning to observe empirically that patterns of use of the Internet and the World Wide Web exhibit a significant degree of order. In chapter 7, I describe in detail and apply the literature that has explored network topology to the Babel objection in the context of democracy and the emerging networked public sphere, but its basic lesson applies here as well. In brief, the structure of linking on the Internet suggests that, even without quasi-formal collaborative filtering, the coordinate behavior of many autonomous individuals settles on an order that permits us to make sense of the tremendous flow of information that results from universal practical ability to speak and create. We observe the Web developing an order--with high-visibility nodes, and clusters of thickly connected "regions" where groups of Web sites accredit each other by mutual referencing. The high-visibility Web sites provide points of condensation for informing individual choices, every bit as much as they form points of condensation for public discourse. The enormous diversity of topical and context-dependent clustering, whose content is nonetheless available for anyone to reach from anywhere, provides both a way of slicing through the information and rendering it comprehensible, and a way of searching for new sources of information beyond those that one interacts with as a matter of course. The Babel objection is partly solved, then, by the fact that people tend to congregate around common choices. We do this not as a result of purposeful manipulation, but rather because in choosing whether or not to read something, we probably give some weight to whether or not other people have chosen to read it. Unless one assumes that individual human beings are entirely dissimilar from each other, then the fact that many others have chosen to read something is a reasonable signal that it may be worthwhile for me to read. This phenomenon is both universal--as we see with the fact that Google successfully provides useful ranking by aggregating all judgments around the Web as to the relevance of any given Web site--and recursively ,{[pg 173]}, present within interest-based and context-based clusters or groups. The clustering and actual degree distribution in the Web suggests, however, that people do not simply follow the herd--they will not read whatever a majority reads. Rather, they will make additional rough judgments about which other people's preferences are most likely to predict their own, or which topics to look in. From these very simple rules--other people share something with me in their tastes, and some sets of other people share more with me than others--we see the Babel objection solved on a distributed model, without anyone exerting formal legal control or practical economic power. +={network topology;structure of network;topology, network} + +Why, however, is this not a simple reintroduction of heteronomy, of dependence on the judgment of others that subjects individuals to their control? The answer is that, unlike with proprietary filters imposed at bottlenecks or gateways, attention-distribution patterns emerge from many small-scale, independent choices where free choice exists. They are not easily manipulable by anyone. Significantly, the millions of Web sites that do not have high traffic do not "go out of business." As Clay Shirky puts it, while my thoughts about the weekend are unlikely to be interesting to three random users, they may well be interesting, and a basis for conversation, for three of my close friends. The fact that power law distributions of attention to Web sites result from random distributions of interests, not from formal or practical bottlenecks that cannot be worked around, means that whenever an individual chooses to search based on some mechanism other than the simplest, thinnest belief that individuals are all equally similar and dissimilar, a different type of site will emerge as highly visible. Topical sites cluster, unsurprisingly, around topical preference groups; one site does not account for all readers irrespective of their interests. We, as individuals, also go through an iterative process of assigning a likely relevance to the judgments of others. Through this process, we limit the information overload that would threaten to swamp our capacity to know; we diversify the sources of information to which we expose ourselves; and we avoid a stifling dependence on an editor whose judgments we cannot circumvent. We might spend some of our time using the most general, "human interest has some overlap" algorithm represented by Google for some things, but use political common interest, geographic or local interest, hobbyist, subject matter, or the like, to slice the universe of potential others with whose judgments we will choose to affiliate for any given search. By a combination of random searching and purposeful deployment of social mapping--who is likely to be interested in what is relevant to me now--we can solve the Babel objection while subjecting ,{[pg 174]}, ourselves neither to the legal and market power of proprietors of communications infrastructure or media products nor to the simple judgments of the undifferentiated herd. These observations have the virtue of being not only based on rigorous mathematical and empirical studies, as we see in chapter 7, but also being more consistent with intuitive experience of anyone who has used the Internet for any decent length of time. We do not degenerate into mindless meandering through a cacophonous din. We find things we want quite well. We stumble across things others suggest to us. When we do go on an unplanned walk, within a very short number of steps we either find something interesting or go back to looking in ways that are more self-conscious and ordered. +={Shirky, Clay} + +The core response to the Babel objection is, then, to accept that filtration is crucial to an autonomous individual. Nonetheless, that acknowledgement does not suggest that the filtration and accreditation systems that the industrial information economy has in fact produced, tied to proprietary control over content production and exchange, are the best means to protect autonomous individuals from the threat of paralysis due to information overload. Property in infrastructure and content affords control that can be used to provide filtration. To that extent, property provides the power for some people to shape the will-formation processes of others. The adoption of distributed information-production systems--both structured as cooperative peer-production enterprises and unstructured coordinate results of individual behavior, like the clustering of preferences around Web sites--does not mean that filtration and accreditation lose their importance. It only means that autonomy is better served when these communicative functions, like others, are available from a nonproprietary, open model of production alongside the proprietary mechanisms of filtration. Being autonomous in this context does not mean that we have to make all the information, read it all, and sift through it all by ourselves. It means that the combination of institutional and practical constraints on who can produce information, who can access it, and who can determine what is worth reading leaves each individual with a substantial role in determining what he shall read, and whose judgment he shall adhere to in sifting through the information environment, for what purposes, and under what circumstances. As always in the case of autonomy for context-bound individuals, the question is the relative role that individuals play, not some absolute, context-independent role that could be defined as being the condition of freedom. + +The increasing feasibility of nonmarket, nonproprietary production of information, ,{[pg 175]}, knowledge, and culture, and of communications and computation capacity holds the promise of increasing the degree of autonomy for individuals in the networked information economy. By removing basic capital and organizational constraints on individual action and effective cooperation, the networked information economy allows individuals to do more for and by themselves, and to form associations with others whose help they require in pursuing their plans. We are beginning to see a shift from the highly constrained roles of employee and consumer in the industrial economy, to more flexible, self-authored roles of user and peer participant in cooperative ventures, at least for some part of life. By providing as commons a set of core resources necessary for perceiving the state of the world, constructing one's own perceptions of it and one's own contributions to the information environment we all occupy, the networked information economy diversifies the set of constraints under which individuals can view the world and attenuates the extent to which users are subject to manipulation and control by the owners of core communications and information systems they rely on. By making it possible for many more diversely motivated and organized individuals and groups to communicate with each other, the emerging model of information production provides individuals with radically different sources and types of stories, out of which we can work to author our own lives. Information, knowledge, and culture can now be produced not only by many more people than could do so in the industrial information economy, but also by individuals and in subjects and styles that could not pass the filter of marketability in the mass-media environment. The result is a proliferation of strands of stories and of means of scanning the universe of potential stories about how the world is and how it might become, leaving individuals with much greater leeway to choose, and therefore a much greater role in weaving their own life tapestry. ,{[pg 176]}, + +1~6 Chapter 6 - Political Freedom Part 1: The Trouble with Mass Media +={commercial mass media:See also traditional model of communication commercial mass media, political freedom and+53;mass media, political freedom and+53;political freedom, mass media and+53} + +Modern democracies and mass media have coevolved throughout the twentieth century. The first modern national republics--the early American Republic, the French Republic from the Revolution to the Terror, the Dutch Republic, and the early British parliamentary monarchy--preexisted mass media. They provide us with some model of the shape of the public sphere in a republic without mass media, what Jurgen Habermas called the bourgeois public sphere. However, the expansion of democracies in complex modern societies has largely been a phenomenon of the late nineteenth and twentieth centuries--in particular, the post-World War II years. During this period, the platform of the public sphere was dominated by mass media--print, radio, and television. In authoritarian regimes, these means of mass communication were controlled by the state. In democracies, they operated either under state ownership, with varying degrees of independence from the sitting government, or under private ownership financially dependent on advertising markets. We do not, therefore, have examples of complex modern democracies whose public sphere is built on a platform that is widely ,{[pg 177]}, distributed and independent of both government control and market demands. The Internet as a technology, and the networked information economy as an organizational and social model of information and cultural production, promise the emergence of a substantial alternative platform for the public sphere. The networked public sphere, as it is currently developing, suggests that it will have no obvious points of control or exertion of influence--either by fiat or by purchase. It seems to invert the mass-media model in that it is driven heavily by what dense clusters of users find intensely interesting and engaging, rather than by what large swathes of them find mildly interesting on average. And it promises to offer a platform for engaged citizens to cooperate and provide observations and opinions, and to serve as a watchdog over society on a peer-production model. +={democratic societies+1;networked public sphere:defined+4;public sphere+4} + +% ={Habermas, Jurgen} + +The claim that the Internet democratizes is hardly new. "Everyone a pamphleteer" has been an iconic claim about the Net since the early 1990s. It is a claim that has been subjected to significant critique. What I offer, therefore, in this chapter and the next is not a restatement of the basic case, but a detailed analysis of how the Internet and the emerging networked information economy provide us with distinct improvements in the structure of the public sphere over the mass media. I will also explain and discuss the solutions that have emerged within the networked environment itself to some of the persistent concerns raised about democracy and the Internet: the problems of information overload, fragmentation of discourse, and the erosion of the watchdog function of the media. + +For purposes of considering political freedom, I adopt a very limited definition of "public sphere." The term is used in reference to the set of practices that members of a society use to communicate about matters they understand to be of public concern and that potentially require collective action or recognition. Moreover, not even all communications about matters of potential public concern can be said to be part of the public sphere. Communications within self-contained relationships whose boundaries are defined independently of the political processes for collective action are "private," if those communications remain purely internal. Dinner-table conversations, grumblings at a bridge club, or private letters have that characteristic, if they occur in a context where they are not later transmitted across the associational boundaries to others who are not part of the family or the bridge club. Whether these conversations are, or are not, part of the public sphere depends on the actual communications practices in a given society. The same practices can become an initial step in generating public opinion ,{[pg 178]}, in the public sphere if they are nodes in a network of communications that do cross associational boundaries. A society with a repressive regime that controls the society-wide communications facilities nonetheless may have an active public sphere if social networks and individual mobility are sufficient to allow opinions expressed within discrete associational settings to spread throughout a substantial portion of the society and to take on political meaning for those who discuss them. The public sphere is, then, a sociologically descriptive category. It is a term for signifying how, if at all, people in a given society speak to each other in their relationship as constituents about what their condition is and what they ought or ought not to do as a political unit. This is a purposefully narrow conception of the public sphere. It is intended to focus on the effects of the networked environment on what has traditionally been understood to be political participation in a republic. I postpone consideration of a broader conception of the public sphere, and of the political nature of who gets to decide meaning and how cultural interpretations of the conditions of life and the alternatives open to a society are created and negotiated in a society until chapter 8. +={private communications} + +The practices that define the public sphere are structured by an interaction of culture, organization, institutions, economics, and technical communications infrastructure. The technical platforms of ink and rag paper, handpresses, and the idea of a postal service were equally present in the early American Republic, Britain, and France of the late eighteenth and early nineteenth centuries. However, the degree of literacy, the social practices of newspaper reading, the relative social egalitarianism as opposed to elitism, the practices of political suppression or subsidy, and the extent of the postal system led to a more egalitarian, open public sphere, shaped as a network of smaller-scale local clusters in the United States, as opposed to the more tightly regulated and elitist national and metropolis-centered public spheres of France and Britain. The technical platforms of mass-circulation print and radio were equally available in the Soviet Union and Nazi Germany, in Britain, and in the United States in the 1930s. Again, however, the vastly different political and legal structures of the former created an authoritarian public sphere, while the latter two, both liberal public spheres, differed significantly in the business organization and economic model of production, the legal framework and the cultural practices of reading and listening-- leading to the then still elitist overlay on the public sphere in Britain relative to a more populist public sphere in the United States. +={commercial mass media:as platform for public sphere+3|structure of+3;commercial model of communication:emerging role of mass media+3|structure of mass media+3;industrial model of communication:emerging role of mass media+3|structure of mass media+3;institutional ecology of digital environment:emerging role of mass media+3|structure of mass media+3;mass media:as platform for public sphere+3|structure of+3;mass media:commercial platform for public sphere+3;networked public sphere:mass-media platform for+3;political freedom, mass media and:commercial platform for public sphere+3;public sphere:mass media platform for+3;structure of mass media+3;traditional model of communication:emerging role of mass media+3|structure of mass media+3} + +Mass media structured the public sphere of the twentieth century in all ,{[pg 179]}, advanced modern societies. They combined a particular technical architecture, a particular economic cost structure, a limited range of organizational forms, two or three primary institutional models, and a set of cultural practices typified by consumption of finished media goods. The structure of the mass media resulted in a relatively controlled public sphere--although the degree of control was vastly different depending on whether the institutional model was liberal or authoritarian--with influence over the debate in the public sphere heavily tilted toward those who controlled the means of mass communications. The technical architecture was a one-way, hub-and-spoke structure, with unidirectional links to its ends, running from the center to the periphery. A very small number of production facilities produced large amounts of identical copies of statements or communications, which could then be efficiently sent in identical form to very large numbers of recipients. There was no return loop to send observations or opinions back from the edges to the core of the architecture in the same channel and with similar salience to the communications process, and no means within the massmedia architecture for communication among the end points about the content of the exchanges. Communications among the individuals at the ends were shunted to other media--personal communications or telephones-- which allowed communications among the ends. However, these edge media were either local or one-to-one. Their social reach, and hence potential political efficacy, was many orders of magnitude smaller than that of the mass media. + +The economic structure was typified by high-cost hubs and cheap, ubiquitous, reception-only systems at the ends. This led to a limited range of organizational models available for production: those that could collect sufficient funds to set up a hub. These included: state-owned hubs in most countries; advertising-supported commercial hubs in some of the liberal states, most distinctly in the United States; and, particularly for radio and television, the British Broadcasting Corporation (BBC) model or hybrid models like the Canadian Broadcasting Corporation (CBC) in Canada. The role of hybrid and purely commercial, advertising-supported media increased substantially around the globe outside the United States in the last two to three decades of the twentieth century. Over the course of the century, there also emerged civil-society or philanthropy-supported hubs, like the party presses in Europe, nonprofit publications like Consumer Reports (later, in the United States), and, more important, public radio and television. The oneway technical architecture and the mass-audience organizational model underwrote ,{[pg 180]}, the development of a relatively passive cultural model of media consumption. Consumers (or subjects, in authoritarian systems) at the ends of these systems would treat the communications that filled the public sphere as finished goods. These were to be treated not as moves in a conversation, but as completed statements whose addressees were understood to be passive: readers, listeners, and viewers. + +The Internet's effect on the public sphere is different in different societies, depending on what salient structuring components of the existing public sphere its introduction perturbs. In authoritarian countries, it is the absence of a single or manageably small set of points of control that is placing the greatest pressure on the capacity of the regimes to control their public sphere, and thereby to simplify the problem of controlling the actions of the population. In liberal countries, the effect of the Internet operates through its implications for economic cost and organizational form. In both cases, however, the most fundamental and potentially long-standing effect that Internet communications are having is on the cultural practice of public communication. The Internet allows individuals to abandon the idea of the public sphere as primarily constructed of finished statements uttered by a small set of actors socially understood to be "the media" (whether state owned or commercial) and separated from society, and to move toward a set of social practices that see individuals as participating in a debate. Statements in the public sphere can now be seen as invitations for a conversation, not as finished goods. Individuals can work their way through their lives, collecting observations and forming opinions that they understand to be practically capable of becoming moves in a broader public conversation, rather than merely the grist for private musings. + +2~ DESIGN CHARACTERISTICS OF A COMMUNICATIONS PLATFORM FOR A LIBERAL PUBLIC PLATFORM OR A LIBERAL PUBLIC SPHERE +={commercial mass media:design characteristics of liberal public sphere+8;liberal societies:design of public sphere+8;mass media, political freedom and:design characteristics of liberal public sphere+8;networked public sphere:liberal, design characteristics of+8;political freedom, mass media and:design characteristics of liberal public sphere+8;public sphere:liberal, design characteristics of+8} + +How is private opinion about matters of collective, formal, public action formed? How is private opinion communicated to others in a form and in channels that allow it to be converted into a public, political opinion, and a position worthy of political concern by the formal structures of governance of a society? How, ultimately, is such a political and public opinion converted into formal state action? These questions are central to understanding how ,{[pg 181]}, individuals in complex contemporary societies, located at great distances from each other and possessing completely different endowments of material, intellectual, social, and formal ties and capabilities, can be citizens of the same democratic polity rather than merely subjects of a more or less responsive authority. In the idealized Athenian agora or New England town hall, the answers are simple and local. All citizens meet in the agora, they speak in a way that all relevant citizens can hear, they argue with each other, and ultimately they also constitute the body that votes and converts the opinion that emerges into a legitimate action of political authority. Of course, even in those small, locally bounded polities, things were never quite so simple. Nevertheless, the idealized version does at least give us a set of functional characteristics that we might seek in a public sphere: a place where people can come to express and listen to proposals for agenda items--things that ought to concern us as members of a polity and that have the potential to become objects of collective action; a place where we can make and gather statements of fact about the state of our world and about alternative courses of action; where we can listen to opinions about the relative quality and merits of those facts and alternative courses of action; and a place where we can bring our own concerns to the fore and have them evaluated by others. + +Understood in this way, the public sphere describes a social communication process. Habermas defines the public sphere as "a network for communicating information and points of view (i.e., opinions expressing affirmative or negative attitudes)"; which, in the process of communicating this information and these points of view, filters and synthesizes them "in such a way that they coalesce into bundles of topically specified public opinions."~{ Jurgen Habermas, Between Facts and Norms, Contributions to Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996). }~ Taken in this descriptive sense, the public sphere does not relate to a particular form of public discourse that is normatively attractive from some perspective or another. It defines a particular set of social practices that are necessary for the functioning of any complex social system that includes elements of governing human beings. There are authoritarian public spheres, where communications are regimented and controlled by the government in order to achieve acquiescence and to mobilize support, rather than relying solely on force to suppress dissent and opposition. There are various forms of liberal public spheres, constituted by differences in the political and communications systems scattered around liberal democracies throughout the world. The BBC or the state-owned televisions throughout postwar Western European democracies, for example, constituted the public spheres in different ,{[pg 182]}, ways than did the commercial mass media that dominated the American public sphere. As advertiser-supported mass media have come to occupy a larger role even in places where they were not dominant before the last quarter of the twentieth century, the long American experience with this form provides useful insight globally. +={Habermas, Jurgen} + +In order to consider the relative advantages and failures of various platforms for a public sphere, we need to define a minimal set of desiderata that such a platform must possess. My point is not to define an ideal set of constraints and affordances of the public sphere that would secure legitimacy or would be most attractive under one conception of democracy or another. Rather, my intention is to define a design question: What characteristics of a communications system and practices are sufficiently basic to be desired by a wide range of conceptions of democracy? With these in hand, we will be able to compare the commercial mass media and the emerging alternatives in the digitally networked environment. + +/{Universal Intake}/. Any system of government committed to the idea that, in principle, the concerns of all those governed by that system are equally respected as potential proper subjects for political action and that all those governed have a say in what government should do requires a public sphere that can capture the observations of all constituents. These include at least their observations about the state of the world as they perceive and understand it, and their opinions of the relative desirability of alternative courses of action with regard to their perceptions or those of others. It is important not to confuse "universal intake" with more comprehensive ideas, such as that every voice must be heard in actual political debates, or that all concerns deserve debate and answer. Universal intake does not imply these broader requirements. It is, indeed, the role of filtering and accreditation to whittle down what the universal intake function drags in and make it into a manageable set of political discussion topics and interventions. However, the basic requirement of a public sphere is that it must in principle be susceptible to perceiving and considering the issues of anyone who believes that their condition is a matter appropriate for political consideration and collective action. The extent to which that personal judgment about what the political discourse should be concerned with actually coincides with what the group as a whole will consider in the public sphere is a function of the filtering and accreditation functions. ,{[pg 183]}, +={information production inputs:universal intake+1;inputs to production:universal intake+1;production inputs:universal intake+1;universal intake+1} + +/{Filtering for Potential Political Relevance}/. Not everything that someone considers to be a proper concern for collective action is perceived as such by most other participants in the political debate. A public sphere that has some successful implementation of universal intake must also have a filter to separate out those matters that are plausibly within the domain of organized political action and those that are not. What constitutes the range of plausible political topics is locally contingent, changes over time, and is itself a contested political question, as was shown most obviously by the "personal is political" feminist intellectual campaign. While it left "my dad won't buy me the candy I want" out of the realm of the political, it insisted on treating "my husband is beating me" as critically relevant in political debate. An overly restrictive filtering system is likely to impoverish a public sphere and rob it of its capacity to develop legitimate public opinion. It tends to exclude views and concerns that are in fact held by a sufficiently large number of people, or to affect people in sufficiently salient ways that they turn out, in historical context, to place pressure on the political system that fails to consider them or provide a legitimate answer, if not a solution. A system that is too loose tends to fail because it does not allow a sufficient narrowing of focus to provide the kind of sustained attention and concentration necessary to consider a matter and develop a range of public opinions on it. +={filtering+1;relevance filtering+1} + +/{Filtering for Accreditation}/. Accreditation is different from relevance, requires different kinds of judgments, and may be performed in different ways than basic relevance filtering. A statement like "the president has sold out space policy to Martians" is different from "my dad won't buy me the candy I want." It is potentially as relevant as "the president has sold out energy policy to oil companies." What makes the former a subject for entertainment, not political debate, is its lack of credibility. Much of the function of journalistic professional norms is to create and preserve the credibility of the professional press as a source of accreditation for the public at large. Parties provide a major vehicle for passing the filters of both relevance and accreditation. Academia gives its members a source of credibility, whose force (ideally) varies with the degree to which their statements come out of, and pertain to, their core roles as creators of knowledge through their disciplinary constraints. Civil servants in reasonably professional systems can provide a source of accreditation. Large corporations have come to play such a role, though with greater ambiguity. The emerging role of nongovernment organizations ,{[pg 184]}, (NGOs), very often is intended precisely to preorganize opinion that does not easily pass the relevant public sphere's filters of relevance and accreditation and provide it with a voice that will. Note that accreditation of a move in political discourse is very different from accreditation of a move in, for example, academic discourse, because the objective of each system is different. In academic discourse, the fact that a large number of people hold a particular opinion ("the universe was created in seven days") does not render that opinion credible enough to warrant serious academic discussion. In political discourse, say, about public school curricula, the fact that a large number of people hold the same view and are inclined to have it taught in public schools makes that claim highly relevant and "credible." In other words, it is credible that this could become a political opinion that forms a part of public discourse with the potential to lead to public action. Filters, both for relevance and accreditation, provide a critical point of control over the debate, and hence are extremely important design elements. +={accreditation;opinion, public:synthesis of} + +/{Synthesis of "Public Opinion."}/ The communications system that offers the platform for the public sphere must also enable the synthesis of clusters of individual opinion that are sufficiently close and articulated to form something more than private opinions held by some number of individuals. How this is done is tricky, and what counts as "public opinion" may vary among different theories of democracy. In deliberative conceptions, this might make requirements of the form of discourse. Civic republicans would focus on open deliberation among people who see their role as deliberating about the common good. Habermas would focus on deliberating under conditions that assure the absence of coercion, while Bruce Ackerman would admit to deliberation only arguments formulated so as to be neutral as among conceptions of the good. In pluralist conceptions, like John Rawls's in Political Liberalism, which do not seek ultimately to arrive at a common understanding but instead seek to peaceably clear competing positions as to how we ought to act as a polity, this might mean the synthesis of a position that has sufficient overlap among those who hold it that they are willing to sign on to a particular form of statement in order to get the bargaining benefits of scale as an interest group with a coherent position. That position then comes to the polls and the bargaining table as one that must be considered, overpowered, or bargained with. In any event, the platform has to provide some capacity to synthesize the finely disparate and varied versions of beliefs and positions held by actual individuals into articulated positions amenable for ,{[pg 185]}, consideration and adoption in the formal political sphere and by a system of government, and to render them in ways that make them sufficiently salient in the overall mix of potential opinions to form a condensation point for collective action. +={Habermas, Jurgen;Ackerman, Bruce;clusters in network topology:synthesis of public opinion;accreditation;opinion, public:synthesis of;public opinion:synthesis of;synthesis of public opinion;Rawls, John} + +/{Independence from Government Control}/. The core role of the political public sphere is to provide a platform for converting privately developed observations, intuitions, and opinions into public opinions that can be brought to bear in the political system toward determining collective action. One core output of these communications is instructions to the administration sitting in government. To the extent that the platform is dependent on that same sitting government, there is a basic tension between the role of debate in the public sphere as issuing instructions to the executive and the interests of the sitting executive to retain its position and its agenda and have it ratified by the public. This does not mean that the communications system must exclude government from communicating its positions, explaining them, and advocating them. However, when it steps into the public sphere, the locus of the formation and crystallization of public opinion, the sitting administration must act as a participant in explicit conversation, and not as a platform controller that can tilt the platform in its direction. +={government:independence from control of;independence from government control;policy:independence from government control} + +2~ THE EMERGENCE OF THE COMMERCIAL MASS-MEDIA PLATFORM FOR THE PUBLIC SPHERE +={commercial model of communication:emerging role of mass media+1;industrial model of communication:emerging role of mass media+1;institutional ecology of digital environment:emerging role of mass media+1;mass media:as platform for public sphere+1;mass media, political freedom and:commercial platform for public sphere+1;networked public sphere:mass-media platform for+1;political freedom, mass media and:commercial platform for public sphere+1;public sphere:mass media platform for+1;traditional model of communication:emerging role of mass media+1} + +Throughout the twentieth century, the mass media have played a fundamental constitutive role in the construction of the public sphere in liberal democracies. Over this period, first in the United States and later throughout the world, the commercial, advertising-supported form of mass media has become dominant in both print and electronic media. Sometimes, these media have played a role that has drawn admiration as "the fourth estate." Here, the media are seen as a critical watchdog over government processes, and as a major platform for translating the mobilization of social movements into salient, and ultimately actionable, political statements. These same media, however, have also drawn mountains of derision for the power they wield, as well as fail to wield, and for the shallowness of public communication they promote in the normal course of the business of selling eyeballs to advertisers. Nowhere was this clearer than in the criticism of the large role that television came to play in American public culture and its public ,{[pg 186]}, sphere. Contemporary debates bear the imprint of the three major networks, which in the early 1980s still accounted for 92 percent of television viewers and were turned on and watched for hours a day in typical American homes. These inspired works like Neil Postman's /{Amusing Ourselves to Death or Robert Putnam's claim, in Bowling Alone}/, that television seemed to be the primary identifiable discrete cause of the decline of American civic life. Nevertheless, whether positive or negative, variants of the mass-media model of communications have been dominant throughout the twentieth century, in both print and electronic media. The mass-media model has been the dominant model of communications in both democracies and their authoritarian rivals throughout the period when democracy established itself, first against monarchies, and later against communism and fascism. To say that mass media were dominant is not to say that only technical systems of remote communications form the platform of the public sphere. As Theda Skocpol and Putnam have each traced in the context of the American and Italian polities, organizations and associations of personal civic involvement form an important platform for public participation. And yet, as both have recorded, these platforms have been on the decline. So "dominant" does not mean sole, but instead means overridingly important in the structuring of the public sphere. It is this dominance, not the very existence, of mass media that is being challenged by the emergence of the networked public sphere. +={commercial press+2;newspapers+2;press, commercial+2;print media, commercial+2;radio+13;Postman, Neil;television;commercial mass media:as platform for public sphere+1} + +The roots of the contemporary industrial structure of mass media presage both the attractive and unattractive aspects of the media we see today. Pioneered by the Dutch printers of the seventeenth century, a commercial press that did not need to rely on government grants and printing contracts, or on the church, became a source of a constant flow of heterodox literature and political debate.~{ Elizabeth Eisenstein, The Printing Press as an Agent of Change (New York: Cambridge University Press, 1979); Jeremey Popkin, News and Politics in the Age of Revolution: Jean Luzac's Gazzette de Leyde (Ithaca, NY: Cornell University Press, 1989). }~ However, a commercial press has always also been sensitive to the conditions of the marketplace--costs, audience, and competition. In seventeenth-century England, the Stationers' Monopoly provided its insiders enough market protection from competitors that its members were more than happy to oblige the Crown with a compliant press in exchange for monopoly. It was only after the demise of that monopoly that a genuinely political press appeared in earnest, only to be met by a combination of libel prosecutions, high stamp taxes, and outright bribery and acquisition by government.~{ Paul Starr, The Creation of the Media: Political Origins of Modern Communications (New York: Basic Books, 2004), 33-46. }~ These, like the more direct censorship and sponsorship relationships that typified the prerevolutionary French press, kept newspapers and gazettes relatively compliant, and their distribution largely limited to elite audiences. Political dissent did not form part of a stable and ,{[pg 187]}, independent market-based business model. As Paul Starr has shown, the evolution of the British colonies in America was different. While the first century or so of settlement saw few papers, and those mostly "authorized" gazettes, competition began to increase over the course of the eighteenth century. The levels of literacy, particularly in New England, were exceptionally high, the population was relatively prosperous, and the regulatory constraints that applied in England, including the Stamp Tax of 1712, did not apply in the colonies. As second and third newspapers emerged in cities like Boston, Philadelphia, and New York, and were no longer supported by the colonial governments through postal franchises, the public sphere became more contentious. This was now a public sphere whose voices were self-supporting, like Benjamin Franklin's Pennsylvania Gazette. The mobilization of much of this press during the revolutionary era, and the broad perception that it played an important role in constituting the American public, allowed the commercial press to continue to play an independent and critical role after the revolution as well, a fate not shared by the brief flowering of the press immediately after the French Revolution. A combination of high literacy and high government tolerance, but also of postal subsidies, led the new United States to have a number and diversity of newspapers unequalled anywhere else, with a higher weekly circulation by 1840 in the 17-million-strong United States than in all of Europe with its population then of 233 million. By 1830, when Tocqueville visited America, he was confronted with a widespread practice of newspaper reading--not only in towns, but in farflung farms as well, newspapers that were a primary organizing mechanism for political association.~{ Starr, Creation of the Media, 48-62, 86-87. }~ +={Starr, Paul+1;Franklin, Benjamin;Tocqueville, Alexis, de;de Tocqueville, Alexis;large-circulation press+1} + +This widespread development of small-circulation, mostly local, competitive commercial press that carried highly political and associational news and opinion came under pressure not from government, but from the economies of scale of the mechanical press, the telegraph, and the ever-expanding political and economic communities brought together by rail and industrialization. Harold Innis argued more than half a century ago that the increasing costs of mechanical presses, coupled with the much-larger circulation they enabled and the availability of a flow of facts from around the world through telegraph, reoriented newspapers toward a mass-circulation, relatively low-denominator advertising medium. These internal economies, as Alfred Chandler and, later, James Beniger showed in their work, intersected with the vast increase in industrial output, which in turn required new mechanisms of demand management--in other words, more sophisticated ,{[pg 188]}, advertising to generate and channel demand. In the 1830s, the Sun and Herald were published in New York on large-circulation scales, reducing prices to a penny a copy and shifting content from mostly politics and business news to new forms of reporting: petty crimes from the police courts, human-interest stories, and outright entertainment-value hoaxes.~{ Starr, Creation of the Media, 131-133. }~ The startup cost of founding such mass-circulation papers rapidly increased over the second quarter of the nineteenth century, as figure 6.1 illustrates. James Gordon Bennett founded the Herald in 1835, with an investment of five hundred dollars, equal to a little more than $10,400 in 2005 dollars. By 1840, the necessary investment was ten to twenty times greater, between five and ten thousand dollars, or $106,000?$212,000 in 2005 terms. By 1850, that amount had again grown tenfold, to $100,000, about $2.38 million in 2005.~{ Starr, Creation of the Media, 135. }~ In the span of fifteen years, the costs of starting a newspaper rose from a number that many could conceive of spending for a wide range of motivations using a mix of organizational forms, to something that required a more or less industrial business model to recoup a very substantial financial investment. The new costs reflected mutually reinforcing increases in organizational cost (because of the professionalization of the newspaper publishing model) and the introduction of high-capacity, higher-cost equipment: electric presses (1839); the Hoe double-cylinder rotary press (1846), which raised output from the five hundred to one thousand sheets per hour of the early steam presses (up from 250 sheets for the handpress) to twelve thousand sheets per hour; and eventually William Bullock's roll-fed rotary press that produced twelve thousand complete newspapers per hour by 1865. The introduction of telegraph and the emergence of news agencies--particularly the Associated Press (AP) in the United States and Reuters in England--completed the basic structure of the commercial printed press. These characteristics--relatively high cost, professional, advertising supported, dependent on access to a comparatively small number of news agencies (which, in the case of the AP, were often used to anticompetitive advantage by their members until the midtwentieth-century antitrust case)--continued to typify print media. With the introduction of competition from radio and television, these effects tended to lead to greater concentration, with a majority of papers facing no local competition, and an ever-increasing number of papers coming under the joint ownership of a very small number of news publishing houses. +={Beniger, James;Chandler, Alfred;Titmuss, Richard;Bennett, James Gorden;Bullock, William} + +{won_benkler_6_1.png "Figure 6.1: Start-up Costs of a Daily Newspaper, 1835-1850 (in 2005 dollars)" }http://www.jus.uio.no/sisu + +% moved image above paragraph instead of at start of page 189 of original text, joined logical paragraph ending page 188 and continued on page 189 after image + +The introduction of radio was the next and only serious potential inflection point, prior to the emergence of the Internet, at which some portion of the public sphere could have developed away from the advertiser- ,{[pg 189]}, supported mass-media model. In most of Europe, radio followed the path of state-controlled media, with variable degrees of freedom from the executive at different times and places. Britain developed the BBC, a public organization funded by government-imposed levies, but granted sufficient operational freedom to offer a genuine platform for a public sphere, as opposed to a reflection of the government's voice and agenda. While this model successfully developed what is perhaps the gold standard of broadcast journalism, it also grew as a largely elite institution throughout much of the twentieth century. The BBC model of state-based funding and monopoly with genuine editorial autonomy became the basis of the broadcast model in a number of former colonies: Canada and Australia adopted a hybrid model in the 1930s. This included a well-funded public broadcaster, but did not impose a monopoly in its favor, allowing commercial broadcasters to grow alongside it. Newly independent former colonies in the postwar era that became democracies, like India and Israel, adopted the model with monopoly, levy-based funding, and a degree of editorial independence. The most currently visible adoption of a hybrid model based on some state funding but with editorial freedom is Al Jazeera, the Arab satellite station partly funded by the Emir of Qatar, but apparently free to pursue its own editorial policy, whose coverage stands in sharp contrast to that of the state-run broadcasters ,{[pg 190]}, in the region. In none of these BBC-like places did broadcast diverge from the basic centralized communications model of the mass media, but it followed a path distinct from the commercial mass media. Radio, and later television, was a more tightly controlled medium than was the printed press; its intake, filtering, and synthesis of public discourse were relatively insulated from the pressure of both markets, which typified the American model, and politics, which typified the state-owned broadcasters. These were instead controlled by the professional judgments of their management and journalists, and showed both the high professionalism that accompanied freedom along both those dimensions and the class and professional elite filters that typify those who control the media under that organizational model. The United States took a different path that eventually replicated, extended, and enhanced the commercial, advertiser-supported mass-media model originated in the printed press. This model was to become the template for the development of similar broadcasters alongside the state-owned and independent BBC-model channels adopted throughout much of the rest of the world, and of programming production for newer distribution technologies, like cable and satellite stations. The birth of radio as a platform for the public sphere in the United States was on election night in 1920.~{ The following discussion of the birth of radio is adapted from Yochai Benkler, "Overcoming Agoraphobia: Building the Commons of the Digitally Networked Environment," Harvard Journal of Law and Technology 11 (Winter 1997-1998): 287. That article provides the detailed support for the description. The major secondary works relied on are Erik Barnouw, A History of Broadcasting in the United States (New York: Oxford University Press, 1966-1970); Gleason Archer, History of Radio to 1926 (New York: Arno Press, 1971); and Philip T. Rosen, Modern Stentors: Radio Broadcasters and the Federal Government, 1920-1934 (Westport, CT: Greenwood Press, 1980). }~ Two stations broadcast the election returns as their launchpad for an entirely new medium--wireless broadcast to a wide audience. One was the Detroit News amateur station, 8MK, a broadcast that was framed and understood as an internal communication of a technical fraternity--the many amateurs who had been trained in radio communications for World War I and who then came to form a substantial and engaged technical community. The other was KDKA Pittsburgh, launched by Westinghouse as a bid to create demand for radio receivers of a kind that it had geared up to make during the war. Over the following four or five years, it was unclear which of these two models of communication would dominate the new medium. By 1926, however, the industrial structure that would lead radio to follow the path of commercial, advertiser-supported, concentrated mass media, dependent on government licensing and specializing in influencing its own regulatory oversight process was already in place. +={BBC (British Broadcasting Corporation);monopoly:radio broadcasting;KDKA Pittsburgh;radio:as public sphere platform} + +Although this development had its roots in the industrial structure of radio production as it emerged from the first two decades of innovation and businesses in the twentieth century, it was shaped significantly by political-regulatory choices during the 1920s. At the turn of the twentieth century, radio was seen exclusively as a means of wireless telegraphy, emphasizing ,{[pg 191]}, ship-to-shore and ship-to-ship communications. Although some amateurs experimented with voice programs, broadcast was a mode of point-to-point communications; entertainment was not seen as its function until the 1920s. The first decade and a half of radio in the United States saw rapid innovation and competition, followed by a series of patent suits aimed to consolidate control over the technology. By 1916, the ideal transmitter based on technology available at the time required licenses of patents held by Marconi, AT&T, General Electric (GE), and a few individuals. No licenses were in fact granted. The industry had reached stalemate. When the United States joined the war, however, the navy moved quickly to break the stalemate, effectively creating a compulsory cross-licensing scheme for war production, and brought in Westinghouse, the other major potential manufacturer of vacuum tubes alongside GE, as a participant in the industry. The two years following the war saw intervention by the U.S. government to assure that American radio industry would not be controlled by British Marconi because of concerns in the navy that British control over radio would render the United States vulnerable to the same tactic Britain used against Germany at the start of the war--cutting off all transoceanic telegraph communications. The navy brokered a deal in 1919 whereby a new company was created-- the Radio Corporation of America (RCA)--which bought Marconi's American business. By early 1920, RCA, GE, and AT&T entered into a patent cross-licensing model that would allow each to produce for a market segment: RCA would control transoceanic wireless telegraphy, while GE and AT&T's Western Electric subsidiary would make radio transmitters and sell them under the RCA brand. This left Westinghouse with production facilities developed for the war, but shut out of the existing equipment markets by the patent pool. Launching KDKA Pittsburgh was part of its response: Westinghouse would create demand for small receivers that it could manufacture without access to the patents held by the pool. The other part of its strategy consisted of acquiring patents that, within a few months, enabled Westinghouse to force its inclusion in the patent pool, redrawing the market division map to give Westinghouse 40 percent of the receiving equipment market. The first part of Westinghouse's strategy, adoption of broadcasting to generate demand for receivers, proved highly successful and in the long run more important. Within two years, there were receivers in 10 percent of American homes. Throughout the 1920s, equipment sales were big business. +={KDKA Pittsburgh+1;AT&T;GE (General Electric);licensing:radio+3;Marconi;proprietary rights:radio patents;radio:patents;RCA (Radio Corporation of America);Westinghouse+1} + +Radio stations, however, were not dominated by the equipment manufacturers, or by anyone else for that matter, in the first few years. While the ,{[pg 192]}, equipment manufacturers did build powerful stations like KDKA Pittsburgh, WJZ Newark, KYW Chicago (Westinghouse), and WGY Schenectady (GE), they did not sell advertising, but rather made their money from equipment sales. These stations did not, in any meaningful sense of the word, dominate the radio sphere in the first few years of radio, as the networks would indeed come to do within a decade. In November 1921, the first five licenses were issued by the Department of Commerce under the new category of "broadcasting" of "news, lectures, entertainment, etc." Within eight months, the department had issued another 453 licenses. Many of these went to universities, churches, and unions, as well as local shops hoping to attract business with their broadcasts. Universities, seeing radio as a vehicle for broadening their role, began broadcasting lectures and educational programming. Seventy-four institutes of higher learning operated stations by the end of 1922. The University of Nebraska offered two-credit courses whose lectures were transmitted over the air. Churches, newspapers, and department stores each forayed into this new space, much as we saw the emergence of Web sites for every organization over the course of the mid-1990s. Thousands of amateurs were experimenting with technical and format innovations. While receivers were substantially cheaper than transmitters, it was still possible to assemble and sell relatively cheap transmitters, for local communications, at prices sufficiently low that thousands of individual amateurs could take to the air. At this point in time, then, it was not yet foreordained that radio would follow the mass-media model, with a small number of well-funded speakers and hordes of passive listeners. Within a short period, however, a combination of technology, business practices, and regulatory decisions did in fact settle on the model, comprised of a small number of advertiser-supported national networks, that came to typify the American broadcast system throughout most of the rest of the century and that became the template for television as well. +={university-owned-radio} + +Herbert Hoover, then secretary of commerce, played a pivotal role in this development. Throughout the first few years after the war, Hoover had positioned himself as the champion of making control over radio a private market affair, allying himself both with commercial radio interests and with the amateurs against the navy and the postal service, each of which sought some form of nationalization of radio similar to what would happen more or less everywhere else in the world. In 1922, Hoover assembled the first of four annual radio conferences, representing radio manufacturers, broadcasters, and some engineers and amateurs. This forum became Hoover's primary ,{[pg 193]}, stage. Over the next four years, he used its annual meeting to derive policy recommendations, legitimacy, and cooperation for his regulatory action, all without a hint of authority under the Radio Act of 1912. Hoover relied heavily on the rhetoric of public interest and on the support of amateurs to justify his system of private broadcasting coordinated by the Department of Commerce. From 1922 on, however, he followed a pattern that would systematically benefit large commercial broadcasters over small ones; commercial broadcasters over educational and religious broadcasters; and the one-to-many broadcasts over the point-to-point, small-scale wireless telephony and telegraphy that the amateurs were developing. After January 1922, the department inserted a limitation on amateur licenses, excluding from their coverage the broadcast of "weather reports, market reports, music, concerts, speeches, news or similar information or entertainment." This, together with a Department of Commerce order to all amateurs to stop broadcasting at 360 meters (the wave assigned broadcasting), effectively limited amateurs to shortwave radiotelephony and telegraphy in a set of frequencies then thought to be commercially insignificant. In the summer, the department assigned broadcasters, in addition to 360 meters, another band, at 400 meters. Licenses in this Class B category were reserved for transmitters operating at power levels of 500-1,000 watts, who did not use phonograph records. These limitations on Class B licenses made the newly created channel a feasible home only to broadcasters who could afford the much-more-expensive, high-powered transmitters and could arrange for live broadcasts, rather than simply play phonograph records. The success of this new frequency was not immediate, because many receivers could not tune out stations broadcasting at the two frequencies in order to listen to the other. Hoover, failing to move Congress to amend the radio law to provide him with the power necessary to regulate broadcasting, relied on the recommendations of the Second Radio Conference in 1923 as public support for adopting a new regime, and continued to act without legislative authority. He announced that the broadcast band would be divided in three: high-powered (500-1,000 watts) stations serving large areas would have no interference in those large areas, and would not share frequencies. They would transmit on frequencies between 300 and 545 meters. Medium-powered stations served smaller areas without interference, and would operate at assigned channels between 222 and 300 meters. The remaining low-powered stations would not be eliminated, as the bigger actors wanted, but would remain at 360 meters, with limited hours of operation and geographic reach. Many of these lower-powered broadcasters ,{[pg 194]}, were educational and religious institutions that perceived Hoover's allocation as a preference for the RCA-GE-AT&T-Westinghouse alliance. Despite his protestations against commercial broadcasting ("If a speech by the President is to be used as the meat in a sandwich of two patent medicine advertisements, there will be no radio left"), Hoover consistently reserved clear channels and issued high-power licenses to commercial broadcasters. The final policy action based on the radio conferences came in 1925, when the Department of Commerce stopped issuing licenses. The result was a secondary market in licenses, in which some religious and educational stations were bought out by commercial concerns. These purchases further gravitated radio toward commercial ownership. The licensing preference for stations that could afford high-powered transmitters, long hours of operation, and compliance with high technical constraints continued after the Radio Act of 1927. As a practical matter, it led to assignment of twenty-one out of the twentyfour clear channel licenses created by the Federal Radio Commission to the newly created network-affiliated stations. +={Hoover, Herbert;AT&T+3;proprietary rights:radio patents+1;radio:patents+1;advertiser-supported media+3} + +Over the course of this period, tensions also began to emerge within the patent alliance. The phenomenal success of receiver sales tempted Western Electric into that market. In the meantime, AT&T, almost by mistake, began to challenge GE, Westinghouse, and RCA in broadcasting as an outgrowth of its attempt to create a broadcast common-carriage facility. Despite the successes of broadcast and receiver sales, it was not clear in 1922-1923 how the cost of setting up and maintaining stations would be paid for. In England, a tax was levied on radio sets, and its revenue used to fund the BBC. No such proposal was considered in the United States, but the editor of Radio Broadcast proposed a national endowed fund, like those that support public libraries and museums, and in 1924, a committee of New York businessmen solicited public donations to fund broadcasters (the response was so pitiful that the funds were returned to their donors). AT&T was the only company to offer a solution. Building on its telephone service experience, it offered radio telephony to the public for a fee. Genuine wireless telephony, even mobile telephony, had been the subject of experimentation since the second decade of radio, but that was not what AT&T offered. In February 1922, AT&T established WEAF in New York, a broadcast station over which AT&T was to provide no programming of its own, but instead would enable the public or program providers to pay on a per-time basis. AT&T treated this service as a form of wireless telephony so that it would fall, under the patent alliance agreements of 1920, under the exclusive control of AT&T. ,{[pg 195]}, +={radio telephony;toll broadcasting+2;broadcasting, radio. See radio broadcasting, toll+2;toll broadcasting+2} + +RCA, Westinghouse, and GE could not compete in this area. "Toll broadcasting" was not a success by its own terms. There was insufficient demand for communicating with the public to sustain a full schedule that would justify listeners tuning into the station. As a result, AT&T produced its own programming. In order to increase the potential audience for its transmissions while using its advantage in wired facilities, AT&T experimented with remote transmissions, such as live reports from sports events, and with simultaneous transmissions of its broadcasts by other stations, connected to its New York feed by cable. In its effort to launch toll broadcasting, AT&T found itself by mid-1923 with the first functioning precursor to an advertiser-supported broadcast network. +={GE (General Electric)+1;RCA (Radio Corporation of America)+1;Westinghouse+1} + +The alliance members now threatened each other: AT&T threatened to enter into receiver manufacturing and broadcast, and the RCA alliance, with its powerful stations, threatened to adopt "toll broadcasting," or advertiser-supported radio. The patent allies submitted their dispute to an arbitrator, who was to interpret the 1920 agreements, reached at a time of wireless telegraphy, to divide the spoils of the broadcast world of 1924. In late 1924, the arbitrator found for RCA-GE-Westinghouse on almost all issues. Capitalizing on RCA's difficulties with the antitrust authorities and congressional hearings over aggressive monopolization practices in the receiving set market, however, AT&T countered that if the 1920 agreements meant what the arbitrator said they meant, they were a combination in restraint of trade to which AT&T would not adhere. Bargaining in the shadow of the mutual threats of contract and antitrust actions, the former allies reached a solution that formed the basis of future radio broadcasting. AT&T would leave broadcasting. A new company, owned by RCA, GE, and Westinghouse would be formed, and would purchase AT&T's stations. The new company would enter into a long-term contract with AT&T to provide the long-distance communications necessary to set up the broadcast network that David Sarnoff envisioned as the future of broadcast. This new entity would, in 1926, become the National Broadcasting Company (NBC). AT&T's WEAF station would become the center of one of NBC's two networks, and the division arrived at would thereafter form the basis of the broadcast system in the United States. +={monopoly:radio broadcasting+1;NBC (National Broadcasting Company);Sarnoff, David} + +By the middle of 1926, then, the institutional and organizational elements that became the American broadcast system were, to a great extent, in place. The idea of government monopoly over broadcasting, which became dominant in Great Britain, Europe, and their former colonies, was forever abandoned. ,{[pg 196]}, The idea of a private-property regime in spectrum, which had been advocated by commercial broadcasters to spur investment in broadcast, was rejected on the backdrop of other battles over conservation of federal resources. The Radio Act of 1927, passed by Congress in record speed a few months after a court invalidated Hoover's entire regulatory edifice as lacking legal foundation, enacted this framework as the basic structure of American broadcast. A relatively small group of commercial broadcasters and equipment manufacturers took the lead in broadcast development. A governmental regulatory agency, using a standard of "the public good," allocated frequency, time, and power assignments to minimize interference and to resolve conflicts. The public good, by and large, correlated to the needs of commercial broadcasters and their listeners. Later, the broadcast networks supplanted the patent alliance as the primary force to which the Federal Radio Commission paid heed. The early 1930s still saw battles over the degree of freedom that these networks had to pursue their own commercial interests, free of regulation (studied in Robert McChesney's work).~{ Robert Waterman McChesney, Telecommunications, Mass Media, and Democracy: The Battle for the Control of U.S. Broadcasting, 1928-1935 (New York: Oxford University Press, 1993). }~ By that point, however, the power of the broadcasters was already too great to be seriously challenged. Interests like those of the amateurs, whose romantic pioneering mantle still held strong purchase on the process, educational institutions, and religious organizations continued to exercise some force on the allocation and management of the spectrum. However, they were addressed on the periphery of the broadcast platform, leaving the public sphere to be largely mediated by a tiny number of commercial entities running a controlled, advertiser-supported platform of mass media. Following the settlement around radio, there were no more genuine inflection points in the structure of mass media. Television followed radio, and was even more concentrated. Cable networks and satellite networks varied to some extent, but retained the basic advertiser-supported model, oriented toward luring the widest possible audience to view the advertising that paid for the programming. +={mass media:as platform for public sphere;McChesney, Robert;Radio Act of 1927} + +2~ BASIC CRITIQUES OF MASS MEDIA +={mass media:as platform for public sphere+3;commercial mass media:criticisms+22;commercial mass media:basic critiques of+22;mass media:basic critiques of+22;mass media, political freedom and+22;political freedom, mass media and:criticisms+22} + +The cluster of practices that form the mass-media model was highly conducive to social control in authoritarian countries. The hub-and-spoke technical architecture and unidirectional endpoint-reception model of these systems made it very simple to control, by controlling the core--the state-owned television, radio, and newspapers. The high cost of providing ,{[pg 197]}, high-circulation statements meant that subversive publications were difficult to make and communicate across large distances and to large populations of potential supporters. Samizdat of various forms and channels have existed in most if not all authoritarian societies, but at great disadvantage relative to public communication. The passivity of readers, listeners, and viewers coincided nicely with the role of the authoritarian public sphere--to manage opinion in order to cause the widest possible willing, or at least quiescent, compliance, and thereby to limit the need for using actual repressive force. + +In liberal democracies, the same technical and economic cost characteristics resulted in a very different pattern of communications practices. However, these practices relied on, and took advantage of, some of the very same basic architectural and cost characteristics. The practices of commercial mass media in liberal democracies have been the subject of a vast literature, criticizing their failures and extolling their virtues as a core platform for the liberal public sphere. There have been three primary critiques of these media: First, their intake has been seen as too limited. Too few information collection points leave too many views entirely unexplored and unrepresented because they are far from the concerns of the cadre of professional journalists, or cannot afford to buy their way to public attention. The debates about localism and diversity of ownership of radio and television stations have been the clearest policy locus of this critique in the United States. They are based on the assumption that local and socially diverse ownership of radio stations will lead to better representation of concerns as they are distributed in society. Second, concentrated mass media has been criticized as giving the owners too much power--which they either employ themselves or sell to the highest bidder--over what is said and how it is evaluated. Third, the advertising-supported media needs to attract large audiences, leading programming away from the genuinely politically important, challenging, and engaging, and toward the titillating or the soothing. This critique has emphasized the tension between business interests and journalistic ethics, and the claims that market imperatives and the bottom line lead to shoddy or cowering reporting; quiescence in majority tastes and positions in order to maximize audience; spectacle rather than substantive conversation of issues even when political matters are covered; and an emphasis on entertainment over news and analysis. +={access:large-audience programming|limited by mass media+3|systematically blocked by policy routers+3;accreditation:of mass media owners;advertiser-supported media:denominator programming;alertness, undermined by commercialism;blocked access:large-audience programming|mass media and+3|policy routers+3;capacity:diversity of content in large audience media|policy routers+3;Cisco policy routers+3;commercialism, undermining political concern;concentration of mass-media power;diversity:large-audience programming;ethic (journalistic) vs. business necessity;exercise of programming power;filtering:concentration of mass-media power+1;first-best preferences:large-audience programming|power of mass media owners;information flow:controlling with policy routers+3|limited by mass media+3|large-audience programming;information production inputs:large-audience programming|limited by mass media+3|systematically blocked by policy routers+3|universal intake+3;inputs to production:large-audience programming|limited by mass media+3|systematically blocked by policy routers+3|universal intake+3;inertness, political;journalism, undermined by commercialism;large-audience programming;limited intake of mass media+3;lowest-common-denominator programming;owners of mass media, power of;policy:independence from government control+1;policy routers+3;political concern, undermined by commercialism;power of mass media owners;production inputs:large-audience programming|limited by mass media+3|systematically blocked by policy routers+3|universal intake+3;relevance filtering:power of mass media owners;routers, controlling information flow with+3;television:large-audience programming;universal intake+3} + +% (index) policy routers mentioned much, locate properly re-check!!! + +Three primary defenses or advantages have also been seen in these media: first is their independence from government, party, or upper-class largesse, particularly against the background of the state-owned media in authoritarian ,{[pg 198]}, regimes, and given the high cost of production and communication, commercial mass media have been seen as necessary to create a public sphere grounded outside government. Second is the professionalism and large newsrooms that commercial mass media can afford to support to perform the watchdog function in complex societies. Because of their market-based revenues, they can replace universal intake with well-researched observations that citizens would not otherwise have made, and that are critical to a well-functioning democracy. Third, their near-universal visibility and independence enable them to identify important issues percolating in society. They can provide a platform to put them on the public agenda. They can express, filter, and accredit statements about these issues, so that they become well-specified subjects and feasible objects for public debate among informed citizens. That is to say, the limited number of points to which all are tuned and the limited number of "slots" available for speaking on these media form the basis for providing the synthesis required for public opinion and raising the salience of matters of public concern to the point of potential collective action. In the remainder of this chapter, I will explain the criticisms of the commercial mass media in more detail. I then take up in chapter 7 the question of how the Internet in general, and the rise of nonmarket and cooperative individual production in the networked information economy in particular, can solve or alleviate those problems while fulfilling some of the important roles of mass media in democracies today. +={government:independence from control of;independence from government control;commercial model of communication:emerging role of mass media+2;industrial model of communication:emerging role of mass media+2;industrial ecology of digital environment:emerging role of mass media+2;networked public sphere:mass-media platform for+2;political freedom, media and:commercial platform for public sphere+2;producers professionalism, mass media;public sphere+2;traditional model of communication:emerging role of mass media+2;visibility of mass media} + +% ={commercial mass media:as platform for public sphere} + +3~ Mass Media as a Platform for the Public Sphere +={commercial mass media:as platform for public sphere+1;mass media, political freedom and:commercial platform for public sphere+1} + +The structure of mass media as a mode of communications imposes a certain set of basic characteristics on the kind of public conversation it makes possible. First, it is always communication from a small number of people, organized into an even smaller number of distinct outlets, to an audience several orders of magnitude larger, unlimited in principle in its membership except by the production capacity of the media itself--which, in the case of print, may mean the number of copies, and in radio, television, cable, and the like, means whatever physical-reach constraints, if any, are imposed by the technology and business organizational arrangements used by these outlets. In large, complex, modern societies, no one knows everything. The initial function of a platform for the public sphere is one of intake--taking into the system the observations and opinions of as many members of society as possible as potential objects of public concern and consideration. The ,{[pg 199]}, radical difference between the number of intake points the mass media have and the range and diversity of human existence in large complex societies assures a large degree of information loss at the intake stage. Second, the vast difference between the number of speakers and the number of listeners, and the finished-goods style of mass-media products, imposes significant constraints on the extent to which these media can be open to feedback-- that is, to responsive communications that are tied together as a conversation with multiple reciprocal moves from both sides of the conversation. Third, the immense and very loosely defined audience of mass media affects the filtering and synthesis functions of the mass media as a platform for the public sphere. One of the observations regarding the content of newspapers in the late eighteenth to mid-nineteenth centuries was the shift they took as their circulation increased--from party-oriented, based in relatively thick communities of interest and practice, to fact- and sensation-oriented, with content that made thinner requirements on their users in order to achieve broader and more weakly defined readership. Fourth, and finally, because of the high costs of organizing these media, the functions of intake, sorting for relevance, accrediting, and synthesis are all combined in the hands of the same media operators, selected initially for their capacity to pool the capital necessary to communicate the information to wide audiences. While all these functions are necessary for a usable public sphere, the correlation of capacity to pool capital resources with capacity to offer the best possible filtering and synthesis is not obvious. In addition to basic structural constraints that come from the characteristic of a communications modality that can properly be called "mass media," there are also critiques that arise more specifically from the business models that have characterized the commercial mass media over the course of most of the twentieth century. Media markets are relatively concentrated, and the most common business model involves selling the attention of large audiences to commercial advertisers. +={accreditation:capacity for, by mass media;advertiser-supported media+7;capacity:mass media limits on;clusters in network topology:synthesis of public opinion;feedback and intake limits of mass media;filtering:capacity for by mass media|concentration of mass-media power+7;opinion, public:synthesis of;public opinion:synthesis of;relevance filtering:capacity for, by mass media|power of mass media owners+7;responsive communications;synthesis of public opinion:See also accreditation} + +3~ Media Concentration: The Power of Ownership and Money +={accreditation:power of mass media owners+6;concentration of mass-media power+6;first-best preferences, mass media and:of mass media owners+6;owners of mass media, power of+6;power of mass media owners+6} + +The Sinclair Broadcast Group is one of the largest owners of television broadcast stations in the United States. The group's 2003 Annual Report proudly states in its title, "Our Company. Your Message. 26 Million Households"; that is, roughly one quarter of U.S. households. Sinclair owns and operates or provides programming and sales to sixty-two stations in the United States, including multiple local affiliates of NBC, ABC, CBS, and ,{[pg 200]}, Fox. In April 2004, ABC News's program Nightline dedicated a special program to reading the names of American service personnel who had been killed in the Iraq War. The management of Sinclair decided that its seven ABC affiliates would not air the program, defending its decision because the program "appears to be motivated by a political agenda designed to undermine the efforts of the United States in Iraq."~{ "Names of U.S. Dead Read on Nightline," Associated Press Report, May 1, 2004, http://www.msnbc.msn.com/id/4864247/. }~ At the time, the rising number of American casualties in Iraq was already a major factor in the 2004 presidential election campaign, and both ABC's decision to air the program, and Sinclair's decision to refuse to carry it could be seen as interventions by the media in setting the political agenda and contributing to the public debate. It is difficult to gauge the politics of a commercial organization, but one rough proxy is political donations. In the case of Sinclair, 95 percent of the donations made by individuals associated with the company during the 2004 election cycle went to Republicans, while only 5 percent went to Democrats.~{ The numbers given here are taken from The Center for Responsive Politics, http:// www.opensecrets.org/, and are based on information released by the Federal Elections Commission. }~ Contributions of Disney, on the other hand, the owner of the ABC network, split about seventy-thirty in favor of contribution to Democrats. It is difficult to parse the extent to which political leanings of this sort are personal to the executives and professional employees who make decisions about programming, and to what extent these are more organizationally self-interested, depending on the respective positions of the political parties on the conditions of the industry's business. In some cases, it is quite obvious that the motives are political. When one looks, for example, at contributions by Disney's film division, they are distributed 100 percent in favor of Democrats. This mostly seems to reflect the large contributions of the Weinstein brothers, who run the semi-independent studio Miramax, which also distributed Michael Moore's politically explosive criticism of the Bush administration, Fahrenheit 9/11, in 2004. Sinclair's contributions were aligned with, though more skewed than, those of the National Association of Broadcasters political action committee, which were distributed 61 percent to 39 percent in favor of Republicans. Here the possible motivation is that Republicans have espoused a regulatory agenda at the Federal Communications Commission that allows broadcasters greater freedom to consolidate and to operate more as businesses and less as public trustees. +={exercise of programming power+5;SBG (Sinclair Broadcast Group);Sinclair Broadcast Group (SBG);Moore, Michael} + +The basic point is not, of course, to trace the particular politics of one programming decision or another. It is the relative power of those who manage the mass media when it so dominates public discourse as to shape public perceptions and public debate. This power can be brought to bear throughout the components of the platform, from the intake function (what ,{[pg 201]}, facts about the world are observed) to the filtration and synthesis (the selection of materials, their presentation, and the selection of who will debate them and in what format). These are all central to forming the agenda that the public perceives, choreographing the discussion, the range of opinions perceived and admitted into the conversation, and through these, ultimately, choreographing the perceived consensus and the range of permissible debate. One might think of this as "the Berlusconi effect." Thinking in terms of a particular individual, known for a personal managerial style, who translated the power of control over media into his election as prime minister of his country symbolizes well the concern, but of course does not exhaust the problem, which is both broader and more subtle than the concern with the possibility that mass media will be owned by individuals who would exert total control over these media and translate their control into immediate political power, manufacturing and shaping the appearance of a public sphere, rather than providing a platform for one. +={Berlusconi effect} + +The power of the commercial mass media depends on the degree of concentration in mass-media markets. A million equally watched channels do not exercise power. Concentration is a common word used to describe the power media exercise when there are only few outlets, but a tricky one because it implies two very distinct phenomena. The first is a lack of competition in a market, to a degree sufficient to allow a firm to exercise power over its pricing. This is the antitrust sense. The second, very different concern might be called "mindshare." That is, media is "concentrated" when a small number of media firms play a large role as the channel from and to a substantial majority of readers, viewers, and listeners in a given politically relevant social unit. + +If one thinks that commercial firms operating in a market will always "give the audience what it wants" and that what the audience wants is a fully representative cross-section of all observations and opinions relevant to public discourse, then the antitrust sense would be the only one that mattered. A competitive market would force any market actor simply to reflect the range of available opinions actually held in the public. Even by this measure, however, there continue to be debates about how one should define the relevant market and what one is measuring. The more one includes all potential nationally available sources of information, newspapers, magazines, television, radio, satellite, cable, and the like, the less concentrated the market seems. However, as Eli Noam's recent work on local media concentration has argued, treating a tiny television station on Long Island as equivalent to ,{[pg 202]}, WCBS in New York severely underrepresents the power of mass media over their audience. Noam offered the most comprehensive analysis currently available of the patterns of concentration where media are actually accessed-- locally, where people live--from 1984 to 2001-2002. Most media are consumed locally--because of the cost of national distribution of paper newspapers, and because of the technical and regulatory constraints on nationwide distribution of radio and television. Noam computed two measures of market concentration for each of thirty local markets: the HerfindahlHirschman Index (HHI), a standard method used by the Department of Justice to measure market concentration for antitrust purposes; and what he calls a C4 index--that is, the market share of the top four firms in a market, and C1, the share of the top single firm in the market. He found that, based on the HHI index, all the local media markets are highly concentrated. In the standard measure, a market with an index of less than 1,000 is not concentrated, a market with an index of 1,000-1,800 is moderately concentrated, and a market with an index of above 1,800 on the HHI is highly concentrated. Noam found that local radio, which had an index below 1,000 between 1984 and 1992, rose over the course of the following years substantially. Regulatory restrictions were loosened over the course of the 1990s, resulting by the end of the decade in an HHI index measure of 2,400 for big cities, and higher for medium-sized and small markets. And yet, radio is less concentrated than local multichannel television (cable and satellite) with an HHI of 6,300, local magazines with an HHI of 6,859, and local newspapers with an HHI of 7,621. The only form of media whose concentration has declined to less than highly concentrated (HHI 1,714) is local television, as the rise of new networks and local stations' viability on cable has moved us away from the three-network world of 1984. It is still the case, however, that the top four television stations capture 73 percent of the viewers in most markets, and 62 percent in large markets. The most concentrated media in local markets are newspapers, which, except for the few largest markets, operate on a one-newspaper town model. C1 concentration has grown in this area to 83 percent of readership for the leading papers, and an HHI of 7,621. +={Noam, Eli;commercial press;HHI (Herfindahl-Hirschman Index);newspapers:market concentration;press, commercial;radio:market concentration;television:market concentration} + +The degree of concentration in media markets supports the proposition that owners of media can either exercise power over the programming they provide or what they write, or sell their power over programming to those who would like to shape opinions. Even if one were therefore to hold the Pollyannaish view that market-based media in a competitive market would ,{[pg 203]}, be constrained by competition to give citizens what they need, as Ed Baker put it, there is no reason to think the same in these kinds of highly concentrated markets. As it turns out, a long tradition of scholarship has also developed the claim that even without such high levels of concentration in the antitrust sense, advertiser-supported media markets are hardly good mechanisms for assuring that the contents of the media provide a good reflection of the information citizens need to know as members of a polity, the range of opinions and views about what ought to occupy the public, and what solutions are available to those problems that are perceived and discussed.~{ A careful catalog of these makes up the first part of C. Edwin Baker, Media, Markets, and Democracy (New York: Cambridge University Press, 2002). }~ First, we have long known that advertiser-supported media suffer from more or less well-defined failures, purely as market mechanisms, at representing the actual distribution of first-best preferences of audiences. As I describe in more detail in the next section, whether providers in any market structure, from monopoly to full competition, will even try to serve firstbest preferences of their audience turns out to be a function of the distribution of actual first-best and second-best preferences, and the number of "channels." Second, there is a systematic analytic problem with defining consumer demand for information. Perfect information is a precondition to an efficient market, not its output. In order for consumers to value information or an opinion fully, they must know it and assimilate it to their own worldview and understanding. However, the basic problem to be solved by media markets is precisely to select which information people will value if they in fact come to know it, so it is impossible to gauge the value of a unit of information before it has been produced, and hence to base production decisions on actual existing user preferences. The result is that, even if media markets were perfectly competitive, a substantial degree of discretion and influence would remain in the hands of commercial media owners. +={Baker, Edwin;advertiser-supported media:reflection of consumer preference;constraints on behavior:See autonomy, freedom consumer demand for information;demand for information, consumer;information, perfect;perfect information} + +The actual cultural practice of mass-media production and consumption is more complex than either the view of "efficient media markets" across the board or the general case against media concentration and commercialism. Many of the relevant companies are public companies, answerable to at least large institutional shareholders, and made up of managements that need not be monolithic in their political alignment or judgment as to the desirability of making political gains as opposed to market share. Unless there is economic or charismatic leadership of the type of a William Randolph Hearst or a Rupert Murdoch, organizations usually have complex structures, with varying degrees of freedom for local editors, reporters, and midlevel managers to tug and pull at the fabric of programming. Different media companies ,{[pg 204]}, also have different business models, and aim at different market segments. The New York Times, Wall Street Journal, and Washington Post do not aim at the same audience as most daily local newspapers in the United States. They are aimed at elites, who want to buy newspapers that can credibly claim to embody highly professional journalism. This requires separation of editorial from business decisions--at least for some segments of the newspapers that are critical in attracting those readers. The degree to which the Berlusconi effect in its full-blown form of individual or self-consciously directed political power through shaping of the public sphere will apply is not one that can necessarily be answered as a matter of a priori theoretical framework for all mass media. Instead, it is a concern, a tendency, whose actual salience in any given public sphere or set of firms is the product of historical contingency, different from one country to another and one period to another. It will depend on the strategies of particular companies and their relative mindshare in a society. However, it is clear and structurally characteristic of mass media that a society that depends for its public sphere on a relatively small number of actors, usually firms, to provide most of the platform of its public sphere, is setting itself up for, at least, a form of discourse elitism. In other words, those who are on the inside of the media will be able to exert substantially greater influence over the agenda, the shape of the conversation, and through these the outcomes of public discourse, than other individuals or groups in society. Moreover, for commercial organizations, this power could be sold--and as a business model, one should expect it to be. The most direct way to sell influence is explicit political advertising, but just as we see "product placement" in movies as a form of advertising, we see advertiser influence on the content of the editorial materials. Part of this influence is directly substantive and political. Another is the source of the second critique of commercial mass media. +={Hearst, William Randolph;Murdoch, Rupert;Berlusconi effect;business decisions vs. editorial decisions;editorial filtering:See relevance filtering editorial vs. business decisions;ethic (journalistic) vs. business necessity+10;journalism, undermined by commercialism+10;political concern, undermined by commercialism+10} + +3~ Commercialism, Journalism, and Political Inertness +={access:large-audience programming+9;advertiser-supported media:denominator programming+9;alertness, undermined by commercialism+9;blocked access:large-audience programming;capacity:diversity of content in large-audience media+9;commercialism, undermining political concern+9;diversity:large-audience programming+9;first-best preferences, mass media and:large-audience programming+9;inertness, political+9;information flow:large-audience programming+9;information production inputs:large-audience programming+9;inputs to production:large-audience programming+9;large-audience programming+9;production inputs:large-audience programming+9;television:large-audience programming+9} + +The second cluster of concerns about the commercial mass media is the degree to which their commercialism undermines their will and capacity to provide a platform for public, politically oriented discourse. The concern is, in this sense, the opposite of the concern with excessive power. Rather than the fear that the concentrated mass media will exercise its power to pull opinion in its owners' interest, the fear is that the commercial interests of these media will cause them to pull content away from matters of genuine ,{[pg 205]}, political concern altogether. It is typified in a quote offered by Ben Bagdikian, attributed to W. R. Nelson, publisher of the Kansas City Star in 1915: "Newspapers are read at the breakfast table and dinner tables. God's great gift to man is appetite. Put nothing in the paper that will destroy it."~{ Ben H. Bagdikian, The Media Monopoly, 5th ed. (Boston: Beacon Press, 1997), 118. }~ Examples abound, but the basic analytic structure of the claim is fairly simple and consists of three distinct components. First, advertiser-supported media need to achieve the largest audience possible, not the most engaged or satisfied audience possible. This leads such media to focus on lowest-common-denominator programming and materials that have broad second-best appeal, rather than trying to tailor their programming to the true first-best preferences of well-defined segments of the audience. Second, issues of genuine public concern and potential political contention are toned down and structured as a performance between iconic representations of large bodies of opinion, in order to avoid alienating too much of the audience. This is the reemergence of spectacle that Habermas identified in The Transformation of the Public Sphere. The tendency toward lowest-common-denominator programming translates in the political sphere into a focus on fairly well-defined, iconic views, and to avoidance of genuinely controversial material, because it is easier to lose an audience by offending its members than by being only mildly interesting. The steady structuring of the media as professional, commercial, and one way over 150 years has led to a pattern whereby, when political debate is communicated, it is mostly communicated as performance. Someone represents a party or widely known opinion, and is juxtaposed with others who similarly represent alternative widely known views. These avatars of public opinion then enact a clash of opinion, orchestrated in order to leave the media neutral and free of blame, in the eyes of their viewers, for espousing an offensively partisan view. Third, and finally, this business logic often stands in contradiction to journalistic ethic. While there are niche markets for high-end journalism and strong opinion, outlets that serve those markets are specialized. Those that cater to broader markets need to subject journalistic ethic to business necessity, emphasizing celebrities or local crime over distant famines or a careful analysis of economic policy. +={Habermas, Jurgen;Nelson, W. R.;lowest-common-denominator programming+8;Bagdikian, Ben;communication:through performance;controversy, avoidance of;iconic representations of opinion;opinion, public:iconic representations of;performance as means of communication;public opinion:iconic representations of} + +The basic drive behind programming choices in advertising-supported mass media was explored in the context of the problem of "program diversity" and competition. It relies on a type of analysis introduced by Peter Steiner in 1952. The basic model argued that advertiser-supported media are sensitive only to the number of viewers, not the intensity of their satisfaction. This created an odd situation, where competitors would tend to divide ,{[pg 206]}, among them the largest market segments, and leave smaller slices of the audience unserved, whereas a monopolist would serve each market segment, in order of size, until it ran out of channels. Because it has no incentive to divide all the viewers who want, for example, sitcoms, among two or more stations, a monopolist would program a sitcom on one channel, and the next-most-desired program on the next channel. Two competitors, on the other hand, would both potentially program sitcoms, if dividing those who prefer sitcoms in half still yields a larger total audience size than airing the next-most-desired program. To illustrate this effect with a rather extreme hypothetical example, imagine that we are in a television market of 10 million viewers. Suppose that the distribution of preferences in the audience is as follows: 1,000,000 want to watch sitcoms; 750,000 want sports; 500,000 want local news; 250,000 want action movies; 9,990 are interested in foreign films; and 9,980 want programs on gardening. The stark drop-off between action movies and foreign films and gardening is intended to reflect the fact that the 7.5 million potential viewers who do not fall into one of the first four clusters are distributed in hundreds of small clusters, none commanding more than 10,000 viewers. Before we examine why this extreme assumption is likely correct, let us first see what happens if it were. Table 6.1 presents the programming choices that would typify those of competing channels, based on the number of channels competing and the distribution of preferences in the audience. It reflects the assumptions that each programmer wants to maximize the number of viewers of its channel and that the viewers are equally likely to watch one channel as another if both offer the same type of programming. The numbers in parentheses next to the programming choice represent the number of viewers the programmer can hope to attract given these assumptions, not including the probability that some of the 7.5 million viewers outside the main clusters will also tune in. In this extreme example, one would need a system with more than 250 channels in order to start seeing something other than sitcoms, sports, local news, and action movies. Why, however, is such a distribution likely, or even plausible? The assumption is not intended to represent an actual distribution of what people most prefer to watch. Rather, it reflects the notion that many people have best preferences, fallback preferences, and tolerable options. Their first-best preferences reflect what they really want to watch, and people are highly diverse in this dimension. Their fallback and tolerable preferences reflect the kinds of things they would be willing to watch if nothing else is available, rather than getting up off the sofa and going to a local cafe or reading a book. ,{[pg 207]}, +={steiner, Peter} + +!_ Table 6.1: Distribution of Channels Hypothetical + +table{~h c2; 10; 90 + +No. of channels +Programming Available (in thousands of viewers) + +1 +sitcom (1000) + +2 +sitcom (1000), sports (750) + +3 +sitcom (1000 or 500), sports (750), indifferent between sitcoms and local news (500) + +4 +sitcom (500), sports (750), sitcom (500), local news (500) + +5 +sitcom (500), sports (375), sitcom (500), local news (500), sports (375) + +6 +sitcom (333), sports (375), sitcom (333), local news (500), sports (375), sitcom (333) + +7 +sitcom (333), sports (375), sitcom (333), local news (500), sports (375), sitcom (333), action movies (250) + +8 +sitcom (333), sports (375), sitcom (333), local news (250), sports (375), sitcom (333), action movies (250), local news (250) + +9 +sitcom (250), sports (375), sitcom (250), local news (250), sports (375), sitcom (250), action movies (250), local news (250), sitcom (250) + +*** +*** + +250 +100 channels of sitcom (10); 75 channels of sports (10); 50 channels of local news (10); 25 channels of action movies (10) + +251 +100 channels of sitcom (10); 75 channels of sports (10); 50 channels of local news (10); 25 channels of action movies (10); 1 foreign film channel (9.99) + +252 +100 channels of sitcom (10); 75 channels of sports (10); 50 channels of local news (10); 25 channels of action movies (10); 1 foreign film channel (9.99); 1 gardening channel (9.98) + +}table + +Here represented by sitcoms, sports, and the like, fallback options are more widely shared, even among people whose first-best preferences differ widely, because they represent what people will tolerate before switching, a much less strict requirement than what they really want. This assumption follows Jack Beebe's refinement of Steiner's model. Beebe established that media monopolists would show nothing but common-denominator programs and that competition among broadcasters would begin to serve the smaller preference clusters only if a large enough number of channels were available. Such a model would explain the broad cultural sense of Bruce Springsteen's song, "57 Channels (And Nothin' On)," and why we saw the emergence of channels like Black Entertainment Television, Univision (Spanish channel in the United States), or The History Channel only when cable systems significantly expanded channel capacity, as well as why direct- ,{[pg 208]}, broadcast satellite and, more recently, digital cable offerings were the first venue for twenty-four-hour-a-day cooking channels and smaller minority-language channels.~{ Peter O. Steiner, "Program Patterns and Preferences, and the Workability of Competition in Radio Broadcasting," The Quarterly Journal of Economics 66 (1952): 194. The major other contribution in this literature is Jack H. Beebe, "Institutional Structure and Program Choices in Television Markets," The Quarterly Journal of Economics 91 (1977): 15. A parallel line of analysis of the relationship between programming and the market structure of broadcasting began with Michael Spence and Bruce Owen, "Television Programming, Monopolistic Competition, and Welfare," The Quarterly Journal of Economics 91 (1977): 103. For an excellent review of this literature, see Matthew L. Spitzer, "Justifying Minority Preferences in Broadcasting," South California Law Review 64 (1991): 293, 304-319. }~ +={Beebe, Jack;monopoly:breadth of programming under} + +While this work was developed in the context of analyzing media diversity of offerings, it provides a foundation for understanding the programming choices of all advertiser-supported mass media, including the press, in domains relevant to the role they play as a platform for the public sphere. It provides a framework for understanding, but also limiting, the applicability of the idea that mass media will put nothing in the newspaper that will destroy the reader's appetite. Controversial views and genuinely disturbing images, descriptions, or arguments have a higher likelihood of turning readers, listeners, and viewers away than entertainment, mildly interesting and amusing human-interest stories, and a steady flow of basic crime and courtroom dramas, and similar fare typical of local television newscasts and newspapers. On the other hand, depending on the number of channels, there are clearly market segments for people who are "political junkies," or engaged elites, who can support some small number of outlets aimed at that crowd. The New York Times or the Wall Street Journal are examples in print, programs like Meet the Press or Nightline and perhaps channels like CNN and Fox News are examples of the possibility and limitations of this exception to the general entertainment-oriented, noncontroversial, and politically inert style of commercial mass media. The dynamic of programming to the lowest common denominator can, however, iteratively replicate itself even within relatively news- and elite-oriented media outlets. Even among news junkies, larger news outlets must cater relatively to the mainstream of its intended audience. Too strident a position or too probing an inquiry may slice the market segment to which they sell too thin. This is likely what leads to the common criticism, from both the Right and Left, that the same media are too "liberal" and too "conservative," respectively. By contrast, magazines, whose business model can support much lower circulation levels, exhibit a substantially greater will for political engagement and analysis than even the relatively political-readership-oriented, larger-circulation mass media. By definition, however, the media that cater to these niche markets serve only a small segment of the political community. Fox News in the United States appears to be a powerful counterexample to this trend. It is difficult to pinpoint why. The channel likely represents a composite of the Berlusconi effect, the high market segmentation made possible by high-capacity cable ,{[pg 209]}, systems, the very large market segment of Republicans, and the relatively polarized tone of American political culture since the early 1990s. + +The mass-media model as a whole, with the same caveat for niche markets, does not lend itself well to in-depth discussion and dialog. High professionalism can, to some extent, compensate for the basic structural problem of a medium built on the model of a small number of producers transmitting to an audience that is many orders of magnitude larger. The basic problem occurs at the intake and synthesis stages of communication. However diligent they may be, a small number of professional reporters, embedded as they are within social segments that are part of social, economic, and political elites, are a relatively stunted mechanism for intake. If one seeks to collect the wide range of individual observations, experiences, and opinions that make up the actual universe of concerns and opinions of a large public as a basic input into the public sphere, before filtering, the centralized model of mass media provides a limited means of capturing those insights. On the back end of the communication of public discourse, concentrated media of necessity must structure most "participants" in the debate as passive recipients of finished messages and images. That is the core characteristic of mass media: Content is produced prior to transmission in a relatively small number of centers, and when finished is then transmitted to a mass audience, which consumes it. This is the basis of the claim of the role of professional journalism to begin with, separating it from nonprofessional observations of those who consume its products. The result of this basic structure of the media product is that discussion and analysis of issues of common concern is an iconic representation of discussion, a choreographed enactment of public debate. The participants are selected for the fact that they represent wellunderstood, well-defined positions among those actually prevalent in a population, the images and stories are chosen to represent issues, and the public debate that is actually facilitated (and is supposedly where synthesis of the opinions in public debate actually happens) is in fact an already presynthesized portrayal of an argument among avatars of relatively large segments of opinion as perceived by the journalists and stagers of the debate. In the United States, this translates into fairly standard formats of "on the left X, on the right Y," or "the Republicans' position" versus "the Democrats' position." It translates into "photo-op" moments of publicly enacting an idea, a policy position, or a state of affairs--whether it is a president landing on an aircraft carrier to represent security and the successful completion of a ,{[pg 210]}, controversial war, or a candidate hunting with his buddies to represent a position on gun control. It is important to recognize that by describing these characteristics, I am not identifying failures of imagination, thoughtfulness, or professionalism on the part of media organizations. These are simply characteristics of a mass-mediated public sphere; modes of communication that offer the path of least resistance given the characteristics of the production and distribution process of mass media, particularly commercial mass media. There are partial exceptions, as there are to the diversity of content or the emphasis on entertainment value, but these do not reflect what most citizens read, see, or hear. The phenomenon of talk radio and call-in shows represents a very different, but certainly not more reflective form. They represent the pornography and violence of political discourse--a combination of exhibitionism and voyeurism intended to entertain us with opportunities to act out suppressed desires and to glimpse what we might be like if we allowed ourselves more leeway from what it means to be a well-socialized adult. +={iconic representations of opinion;opinion, public:iconic representations of;public opinion:iconic representations of} + +The two basic critiques of commercial mass media coalesce on the conflict between journalistic ethics and the necessities of commercialism. If professional journalists seek to perform a robust watchdog function, to inform their readers and viewers, and to provoke and explore in depth, then the dynamics of both power and lowest-common-denominator appeal push back. Different organizations, with different degrees of managerial control, editorial independence, internal organizational culture, and freedom from competitive pressures, with different intended market segments, will resolve these tensions differently. A quick reading of the conclusions of some media scholarship, and more commonly, arguments made in public debates over the media, would tend to lump "the media" as a single entity, with a single set of failures. In fact, unsurprisingly, the literature suggests substantial heterogeneity among organizations and media. Television seems to be the worst culprit on the dimension of political inertness. Print media, both magazines and some newspapers, include significant variation in the degree to which they fit these general models of failure. + +As we turn now to consider the advantages of the introduction of Internet communications, we shall see how this new model can complement the mass media and alleviate its worst weaknesses. In particular, the discussion focuses on the emergence of the networked information economy and the relatively larger role it makes feasible for nonmarket actors and for radically distributed production of information and culture. One need not adopt the position ,{[pg 211]}, that the commercial mass media are somehow abusive, evil, corporate-controlled giants, and that the Internet is the ideal Jeffersonian republic in order to track a series of genuine improvements represented by what the new emerging modalities of public communication can do as platforms for the public sphere. Greater access to means of direct individual communications, to collaborative speech platforms, and to nonmarket producers more generally can complement the commercial mass media and contribute to a significantly improved public sphere. ,{[pg 212]}, + +1~7 Chapter 7 - Political Freedom Part 2: Emergence of the Networked Public Sphere +={networked public sphere+108;political freedom, public sphere and+108;public sphere+108} + +The fundamental elements of the difference between the networked information economy and the mass media are network architecture and the cost of becoming a speaker. The first element is the shift from a hub-and-spoke architecture with unidirectional links to the end points in the mass media, to distributed architecture with multidirectional connections among all nodes in the networked information environment. The second is the practical elimination of communications costs as a barrier to speaking across associational boundaries. Together, these characteristics have fundamentally altered the capacity of individuals, acting alone or with others, to be active participants in the public sphere as opposed to its passive readers, listeners, or viewers. For authoritarian countries, this means that it is harder and more costly, though not perhaps entirely impossible, to both be networked and maintain control over their public spheres. China seems to be doing too good a job of this in the middle of the first decade of this century for us to say much more than that it is harder to maintain control, and therefore that at least in some authoritarian regimes, control will be looser. In ,{[pg 213]}, liberal democracies, ubiquitous individual ability to produce information creates the potential for near-universal intake. It therefore portends significant, though not inevitable, changes in the structure of the public sphere from the commercial mass-media environment. These changes raise challenges for filtering. They underlie some of the critiques of the claims about the democratizing effect of the Internet that I explore later in this chapter. Fundamentally, however, they are the roots of possible change. Beginning with the cost of sending an e-mail to some number of friends or to a mailing list of people interested in a particular subject, to the cost of setting up a Web site or a blog, and through to the possibility of maintaining interactive conversations with large numbers of people through sites like Slashdot, the cost of being a speaker in a regional, national, or even international political conversation is several orders of magnitude lower than the cost of speaking in the mass-mediated environment. This, in turn, leads to several orders of magnitude more speakers and participants in conversation and, ultimately, in the public sphere. +={democratizing effects of Internet+7;Internet:democratizing effects of+7} + +The change is as much qualitative as it is quantitative. The qualitative change is represented in the experience of being a potential speaker, as opposed to simply a listener and voter. It relates to the self-perception of individuals in society and the culture of participation they can adopt. The easy possibility of communicating effectively into the public sphere allows individuals to reorient themselves from passive readers and listeners to potential speakers and participants in a conversation. The way we listen to what we hear changes because of this; as does, perhaps most fundamentally, the way we observe and process daily events in our lives. We no longer need to take these as merely private observations, but as potential subjects for public communication. This change affects the relative power of the media. It affects the structure of intake of observations and views. It affects the presentation of issues and observations for discourse. It affects the way issues are filtered, for whom and by whom. Finally, it affects the ways in which positions are crystallized and synthesized, sometimes still by being amplified to the point that the mass media take them as inputs and convert them into political positions, but occasionally by direct organization of opinion and action to the point of reaching a salience that drives the political process directly. + +The basic case for the democratizing effect of the Internet, as seen from the perspective of the mid-1990s, was articulated in an opinion of the /{U.S. Supreme Court in Reno v. ACLU}/: ,{[pg 214]}, + +_1 The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services. From the publishers' point of view, it constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals. . . . + +_1 Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought."~{ /{Reno v. ACLU}/, 521 U.S. 844, 852-853, and 896-897 (1997). }~ + +The observations of what is different and unique about this new medium relative to those that dominated the twentieth century are already present in the quotes from the Court. There are two distinct types of effects. The first, as the Court notes from "the readers' perspective," is the abundance and diversity of human expression available to anyone, anywhere, in a way that was not feasible in the mass-mediated environment. The second, and more fundamental, is that anyone can be a publisher, including individuals, educational institutions, and nongovernmental organizations (NGOs), alongside the traditional speakers of the mass-media environment--government and commercial entities. + +Since the end of the 1990s there has been significant criticism of this early conception of the democratizing effects of the Internet. One line of critique includes variants of the Babel objection: the concern that information overload will lead to fragmentation of discourse, polarization, and the loss of political community. A different and descriptively contradictory line of critique suggests that the Internet is, in fact, exhibiting concentration: Both infrastructure and, more fundamentally, patterns of attention are much less distributed than we thought. As a consequence, the Internet diverges from the mass media much less than we thought in the 1990s and significantly less than we might hope. + +I begin the chapter by offering a menu of the core technologies and usage patterns that can be said, as of the middle of the first decade of the twentyfirst century, to represent the core Internet-based technologies of democratic discourse. I then use two case studies to describe the social and economic practices through which these tools are implemented to construct the public ,{[pg 215]}, sphere, and how these practices differ quite radically from the mass-media model. On the background of these stories, we are then able to consider the critiques that have been leveled against the claim that the Internet democratizes. Close examination of the application of networked information economy to the production of the public sphere suggests that the emerging networked public sphere offers significant improvements over one dominated by commercial mass media. Throughout the discussion, it is important to keep in mind that the relevant comparison is always between the public sphere that we in fact had throughout the twentieth century, the one dominated by mass media, that is the baseline for comparison, not the utopian image of the "everyone a pamphleteer" that animated the hopes of the 1990s for Internet democracy. Departures from the naïve utopia are not signs that the Internet does not democratize, after all. They are merely signs that the medium and its analysis are maturing. + +2~ BASIC TOOLS OF NETWORKED COMMUNICATION +={communication diversity: See diversity communication tools+8;Internet:technologies of+8;networked public sphere:basic communication tools+8;political freedom, public sphere and:basic communication tools+8;public sphere:basic communication tools+8;technology+8} + +Analyzing the effect of the networked information environment on public discourse by cataloging the currently popular tools for communication is, to some extent, self-defeating. These will undoubtedly be supplanted by new ones. Analyzing this effect without having a sense of what these tools are or how they are being used is, on the other hand, impossible. This leaves us with the need to catalog what is, while trying to abstract from what is being used to what relationships of information and communication are emerging, and from these to transpose to a theory of the networked information economy as a new platform for the public sphere. + +E-mail is the most popular application on the Net. It is cheap and trivially easy to use. Basic e-mail, as currently used, is not ideal for public communications. While it provides a cheap and efficient means of communicating with large numbers of individuals who are not part of one's basic set of social associations, the presence of large amounts of commercial spam and the amount of mail flowing in and out of mailboxes make indiscriminate e-mail distributions a relatively poor mechanism for being heard. E-mails to smaller groups, preselected by the sender for having some interest in a subject or relationship to the sender, do, however, provide a rudimentary mechanism for communicating observations, ideas, and opinions to a significant circle, on an ad hoc basis. Mailing lists are more stable and self-selecting, and ,{[pg 216]}, therefore more significant as a basic tool for the networked public sphere. Some mailing lists are moderated or edited, and run by one or a small number of editors. Others are not edited in any significant way. What separates mailing lists from most Web-based uses is the fact that they push the information on them into the mailbox of subscribers. Because of their attention limits, individuals restrict their subscriptions, so posting on a mailing list tends to be done by and for people who have self-selected as having a heightened degree of common interest, substantive or contextual. It therefore enhances the degree to which one is heard by those already interested in a topic. It is not a communications model of one-to-many, or few-to-many as broadcast is to an open, undefined class of audience members. Instead, it allows one, or a few, or even a limited large group to communicate to a large but limited group, where the limit is self-selection as being interested or even immersed in a subject. +={discussion lists (electronic);distribution lists (electronic);e-mail;mailing lists (electronic);Web+4} + +The World Wide Web is the other major platform for tools that individuals use to communicate in the networked public sphere. It enables a wide range of applications, from basic static Web pages, to, more recently, blogs and various social-software-mediated platforms for large-scale conversations of the type described in chapter 3--like Slashdot. Static Web pages are the individual's basic "broadcast" medium. They allow any individual or organization to present basic texts, sounds, and images pertaining to their position. They allow small NGOs to have a worldwide presence and visibility. They allow individuals to offer thoughts and commentaries. They allow the creation of a vast, searchable database of information, observations, and opinions, available at low cost for anyone, both to read and write into. This does not yet mean that all these statements are heard by the relevant others to whom they are addressed. Substantial analysis is devoted to that problem, but first let us complete the catalog of tools and information flow structures. +={blogs+3;static Web pages+1;writable Web+3} + +One Web-based tool and an emerging cultural practice around it that extends the basic characteristics of Web sites as media for the political public sphere are Web logs, or blogs. Blogs are a tool and an approach to using the Web that extends the use of Web pages in two significant ways. Technically, blogs are part of a broader category of innovations that make the web "writable." That is, they make Web pages easily capable of modification through a simple interface. They can be modified from anywhere with a networked computer, and the results of writing onto the Web page are immediately available to anyone who accesses the blog to read. This technical change resulted in two divergences from the cultural practice of Web sites ,{[pg 217]}, in the 1990s. First, they allowed the evolution of a journal-style Web page, where individual short posts are added to the Web site in short or large intervals. As practice has developed over the past few years, these posts are usually archived chronologically. For many users, this means that blogs have become a form of personal journal, updated daily or so, for their own use and perhaps for the use of a very small group of friends. What is significant about this characteristic from the perspective of the construction of the public sphere is that blogs enable individuals to write to their Web pages in journalism time--that is, hourly, daily, weekly--whereas Web page culture that preceded it tended to be slower moving: less an equivalent of reportage than of the essay. Today, one certainly finds individuals using blog software to maintain what are essentially static Web pages, to which they add essays or content occasionally, and Web sites that do not use blogging technology but are updated daily. The public sphere function is based on the content and cadence--that is, the use practice--not the technical platform. + +The second critical innovation of the writable Web in general and of blogs in particular was the fact that in addition to the owner, readers/users could write to the blog. Blogging software allows the person who runs a blog to permit some, all, or none of the readers to post comments to the blog, with or without retaining power to edit or moderate the posts that go on, and those that do not. The result is therefore not only that many more people write finished statements and disseminate them widely, but also that the end product is a weighted conversation, rather than a finished good. It is a conversation because of the common practice of allowing and posting comments, as well as comments to these comments. Blog writers--bloggers-- often post their own responses in the comment section or address comments in the primary section. Blog-based conversation is weighted, because the culture and technical affordances of blogging give the owner of the blog greater weight in deciding who gets to post or comment and who gets to decide these questions. Different blogs use these capabilities differently; some opt for broader intake and discussion on the board, others for a more tightly edited blog. In all these cases, however, the communications model or information-flow structure that blogs facilitate is a weighted conversation that takes the form of one or a group of primary contributors/authors, together with some larger number, often many, secondary contributors, communicating to an unlimited number of many readers. + +The writable Web also encompasses another set of practices that are distinct, but that are often pooled in the literature together with blogs. These ,{[pg 218]}, are the various larger-scale, collaborative-content production systems available on the Web, of the type described in chapter 3. Two basic characteristics make sites like Slashdot or /{Wikipedia}/ different from blogs. First, they are intended for, and used by, very large groups, rather than intended to facilitate a conversation weighted toward one or a small number of primary speakers. Unlike blogs, they are not media for individual or small group expression with a conversation feature. They are intrinsically group communication media. They therefore incorporate social software solutions to avoid deterioration into chaos--peer review, structured posting privileges, reputation systems, and so on. Second, in the case of Wikis, the conversation platform is anchored by a common text. From the perspective of facilitating the synthesis of positions and opinions, the presence of collaborative authorship of texts offers an additional degree of viscosity to the conversation, so that views "stick" to each other, must jostle for space, and accommodate each other. In the process, the output is more easily recognizable as a collective output and a salient opinion or observation than where the form of the conversation is more free-flowing exchange of competing views. +={collaborative authorship} + +Common to all these Web-based tools--both static and dynamic, individual and cooperative--are linking, quotation, and presentation. It is at the very core of the hypertext markup language (HTML) to make referencing easy. And it is at the very core of a radically distributed network to allow materials to be archived by whoever wants to archive them, and then to be accessible to whoever has the reference. Around these easy capabilities, the cultural practice has emerged to reference through links for easy transition from your own page or post to the one you are referring to--whether as inspiration or in disagreement. This culture is fundamentally different from the mass-media culture, where sending a five-hundred-page report to millions of users is hard and expensive. In the mass media, therefore, instead of allowing readers to read the report alongside its review, all that is offered is the professional review in the context of a culture that trusts the reviewer. On the Web, linking to original materials and references is considered a core characteristic of communication. The culture is oriented toward "see for yourself." Confidence in an observation comes from a combination of the reputation of the speaker as it has emerged over time, reading underlying sources you believe you have some competence to evaluate for yourself, and knowing that for any given referenced claim or source, there is some group of people out there, unaffiliated with the reviewer or speaker, who will have access to the source and the means for making their disagreement with the ,{[pg 219]}, speaker's views known. Linking and "see for yourself" represent a radically different and more participatory model of accreditation than typified the mass media. +={hyperlinking on the Web;linking on the Web;network topology:quoting on Web;quoting on Web;referencing on the Web;structure of network:quoting on Web;topology, network:quoting on Web;Web:quoting from other sites;wireless communications:quoting from other sites} + +Another dimension that is less well developed in the United States than it is in Europe and East Asia is mobility, or the spatial and temporal ubiquity of basic tools for observing and commenting on the world we inhabit. Dan Gillmor is clearly right to include these basic characteristics in his book We the Media, adding to the core tools of what he describes as a transformation in journalism, short message service (SMS), and mobile connected cameras to mailing lists, Web logs, Wikis, and other tools. The United States has remained mostly a PC-based networked system, whereas in Europe and Asia, there has been more substantial growth in handheld devices, primarily mobile phones. In these domains, SMS--the "e-mail" of mobile phones--and camera phones have become critical sources of information, in real time. In some poor countries, where cell phone minutes remain very (even prohibitively) expensive for many users and where landlines may not exist, text messaging is becoming a central and ubiquitous communication tool. What these suggest to us is a transition, as the capabilities of both systems converge, to widespread availability of the ability to register and communicate observations in text, audio, and video, wherever we are and whenever we wish. Drazen Pantic tells of how listeners of Internet-based Radio B-92 in Belgrade reported events in their neighborhoods after the broadcast station had been shut down by the Milosevic regime. Howard Rheingold describes in Smart Mobs how citizens of the Philippines used SMS to organize real-time movements and action to overthrow their government. In a complex modern society, where things that matter can happen anywhere and at any time, the capacities of people armed with the means of recording, rendering, and communicating their observations change their relationship to the events that surround them. Whatever one sees and hears can be treated as input into public debate in ways that were impossible when capturing, rendering, and communicating were facilities reserved to a handful of organizations and a few thousands of their employees. +={Gilmore, Dan;Pantic, Drazen;Rheingold, Howard;mobile phones;text messaging} + +2~ NETWORKED INFORMATION ECONOMY MEETS THE PUBLIC SPHERE +={information economy:effects on public sphere+21;networked information economy:effects on public sphere+21} + +The networked public sphere is not made of tools, but of social production practices that these tools enable. The primary effect of the Internet on the ,{[pg 220]}, public sphere in liberal societies relies on the information and cultural production activity of emerging nonmarket actors: individuals working alone and cooperatively with others, more formal associations like NGOs, and their feedback effect on the mainstream media itself. These enable the networked public sphere to moderate the two major concerns with commercial mass media as a platform for the public sphere: (1) the excessive power it gives its owners, and (2) its tendency, when owners do not dedicate their media to exert power, to foster an inert polity. More fundamentally, the social practices of information and discourse allow a very large number of actors to see themselves as potential contributors to public discourse and as potential actors in political arenas, rather than mostly passive recipients of mediated information who occasionally can vote their preferences. In this section, I offer two detailed stories that highlight different aspects of the effects of the networked information economy on the construction of the public sphere. The first story focuses on how the networked public sphere allows individuals to monitor and disrupt the use of mass-media power, as well as organize for political action. The second emphasizes in particular how the networked public sphere allows individuals and groups of intense political engagement to report, comment, and generally play the role traditionally assigned to the press in observing, analyzing, and creating political salience for matters of public interest. The case studies provide a context both for seeing how the networked public sphere responds to the core failings of the commercial, mass-media-dominated public sphere and for considering the critiques of the Internet as a platform for a liberal public sphere. + +Our first story concerns Sinclair Broadcasting and the 2004 U.S. presidential election. It highlights the opportunities that mass-media owners have to exert power over the public sphere, the variability within the media itself in how this power is used, and, most significant for our purposes here, the potential corrective effect of the networked information environment. At its core, it suggests that the existence of radically decentralized outlets for individuals and groups can provide a check on the excessive power that media owners were able to exercise in the industrial information economy. +={blogs:Sinclair Broadcasting case study+6;boycott of Sinclair Broadcasting+6;SBG (Sinclair Broadcast Group)+6;Sinclair Broadcast Group (SBG)+6} + +Sinclair, which owns major television stations in a number of what were considered the most competitive and important states in the 2004 election-- including Ohio, Florida, Wisconsin, and Iowa--informed its staff and stations that it planned to preempt the normal schedule of its sixty-two stations to air a documentary called Stolen Honor: The Wounds That Never Heal, as a news program, a week and a half before the elections.~{ Elizabeth Jensen, "Sinclair Fires Journalist After Critical Comments," Los Angeles Times, October 19, 2004. }~ The documentary ,{[pg 221]}, was reported to be a strident attack on Democratic candidate John Kerry's Vietnam War service. One reporter in Sinclair's Washington bureau, who objected to the program and described it as "blatant political propaganda," was promptly fired.~{ Jensen, "Sinclair Fires Journalist"; Sheridan Lyons, "Fired Reporter Tells Why He Spoke Out," Baltimore Sun, October 29, 2004. }~ The fact that Sinclair owns stations reaching one quarter of U.S. households, that it used its ownership to preempt local broadcast schedules, and that it fired a reporter who objected to its decision, make this a classic "Berlusconi effect" story, coupled with a poster-child case against media concentration and the ownership of more than a small number of outlets by any single owner. The story of Sinclair's plans broke on Saturday, October 9, 2004, in the Los Angeles Times. Over the weekend, "official" responses were beginning to emerge in the Democratic Party. The Kerry campaign raised questions about whether the program violated election laws as an undeclared "in-kind" contribution to the Bush campaign. By Tuesday, October 12, the Democratic National Committee announced that it was filing a complaint with the Federal Elections Commission (FEC), while seventeen Democratic senators wrote a letter to the chairman of the Federal Communications Commission (FCC), demanding that the commission investigate whether Sinclair was abusing the public trust in the airwaves. Neither the FEC nor the FCC, however, acted or intervened throughout the episode. +={accreditation:concentration of mass-media power+5|power of mass media owners+5;Berlusconi effect+5;capacity:networked public sphere reaction+5;commercial mass media:corrective effects of network environment+5;concentration of mass-media power:corrective effects of network environment+5;culture:shaping perceptions of others+5;exercise of programming power:corrective effects of network environment+5;filtering:corrective effects of network environment;first-best preferences, mass media and:concentration of mass-media power+5|power of mass media owners+5;information production inputs:propaganda+5;inputs to production:propaganda+5;manipulating perceptions of others:with propaganda+5;mass media:corrective effects of network environment+5;media concentration:corrective effects of network environment+5;owners of mass media, power of:corrective effects of network environment+5;perceptions of others, shaping:with propaganda+5;power of mass media owners:corrective effects of network environment+5;production inputs:propaganda+5;propaganda:Stolen Honor documentary+5;relevance filtering:concentration of mass-media power+5|power of mass media owners+5;shaping perceptions of others:with propaganda+5;Stolen Honor documentary+5} + +Alongside these standard avenues of response in the traditional public sphere of commercial mass media, their regulators, and established parties, a very different kind of response was brewing on the Net, in the blogosphere. On the morning of October 9, 2004, the Los Angeles Times story was blogged on a number of political blogs--Josh Marshall on talkingpointsmemo. com, Chris Bower on MyDD.com, and Markos Moulitsas on dailyKos.com. By midday that Saturday, October 9, two efforts aimed at organizing opposition to Sinclair were posted in the dailyKos and MyDD. A "boycottSinclair" site was set up by one individual, and was pointed to by these blogs. Chris Bowers on MyDD provided a complete list of Sinclair stations and urged people to call the stations and threaten to picket and boycott. By Sunday, October 10, the dailyKos posted a list of national advertisers with Sinclair, urging readers to call them. On Monday, October 11, MyDD linked to that list, while another blog, theleftcoaster.com, posted a variety of action agenda items, from picketing affiliates of Sinclair to suggesting that readers oppose Sinclair license renewals, providing a link to the FCC site explaining the basic renewal process and listing public-interest organizations to work with. That same day, another individual, Nick Davis, started a Web site, ,{[pg 222]}, BoycottSBG.com, on which he posted the basic idea that a concerted boycott of local advertisers was the way to go, while another site, stopsinclair.org, began pushing for a petition. In the meantime, TalkingPoints published a letter from Reed Hundt, former chairman of the FCC, to Sinclair, and continued finding tidbits about the film and its maker. Later on Monday, TalkingPoints posted a letter from a reader who suggested that stockholders of Sinclair could bring a derivative action. By 5:00 a.m. on the dawn of Tuesday, October 12, however, TalkingPoints began pointing toward Davis's database on BoycottSBG.com. By 10:00 that morning, Marshall posted on TalkingPoints a letter from an anonymous reader, which began by saying: "I've worked in the media business for 30 years and I guarantee you that sales is what these local TV stations are all about. They don't care about license renewal or overwhelming public outrage. They care about sales only, so only local advertisers can affect their decisions." This reader then outlined a plan for how to watch and list all local advertisers, and then write to the sales managers--not general managers--of the local stations and tell them which advertisers you are going to call, and then call those. By 1:00 p.m. Marshall posted a story of his own experience with this strategy. He used Davis's database to identify an Ohio affiliate's local advertisers. He tried to call the sales manager of the station, but could not get through. He then called the advertisers. The post is a "how to" instruction manual, including admonitions to remember that the advertisers know nothing of this, the story must be explained, and accusatory tones avoided, and so on. Marshall then began to post letters from readers who explained with whom they had talked--a particular sales manager, for example--and who were then referred to national headquarters. He continued to emphasize that advertisers were the right addressees. By 5:00 p.m. that same Tuesday, Marshall was reporting more readers writing in about experiences, and continued to steer his readers to sites that helped them to identify their local affiliate's sales manager and their advertisers.~{ The various posts are archived and can be read, chronologically, at http:// www.talkingpointsmemo.com/archives/week_2004_10_10.php. }~ +={Bower, Chris;dailyKos.com site;Davis, Nick+1;Marshall, Josh;Moulitas, Markos;MyDD.com site;TalkingPoints site;BoycottSBG.com site+1;Hundt, Reed} + +By the morning of Wednesday, October 13, the boycott database already included eight hundred advertisers, and was providing sample letters for users to send to advertisers. Later that day, BoycottSBG reported that some participants in the boycott had received reply e-mails telling them that their unsolicited e-mail constituted illegal spam. Davis explained that the CANSPAM Act, the relevant federal statute, applied only to commercial spam, and pointed users to a law firm site that provided an overview of CANSPAM. By October 14, the boycott effort was clearly bearing fruit. Davis ,{[pg 223]}, reported that Sinclair affiliates were threatening advertisers who cancelled advertisements with legal action, and called for volunteer lawyers to help respond. Within a brief period, he collected more than a dozen volunteers to help the advertisers. Later that day, another blogger at grassroots nation.com had set up a utility that allowed users to send an e-mail to all advertisers in the BoycottSBG database. By the morning of Friday, October 15, Davis was reporting more than fifty advertisers pulling ads, and three or four mainstream media reports had picked up the boycott story and reported on it. That day, an analyst at Lehman Brothers issued a research report that downgraded the expected twelve-month outlook for the price of Sinclair stock, citing concerns about loss of advertiser revenue and risk of tighter regulation. Mainstream news reports over the weekend and the following week systematically placed that report in context of local advertisers pulling their ads from Sinclair. On Monday, October 18, the company's stock price dropped by 8 percent (while the S&P 500 rose by about half a percent). The following morning, the stock dropped a further 6 percent, before beginning to climb back, as Sinclair announced that it would not show Stolen Honor, but would provide a balanced program with only portions of the documentary and one that would include arguments on the other side. On that day, the company's stock price had reached its lowest point in three years. The day after the announced change in programming decision, the share price bounced back to where it had been on October 15. There were obviously multiple reasons for the stock price losses, and Sinclair stock had been losing ground for many months prior to these events. Nonetheless, as figure 7.1 demonstrates, the market responded quite sluggishly to the announcements of regulatory and political action by the Democratic establishment earlier in the week of October 12, by comparison to the precipitous decline and dramatic bounce-back surrounding the market projections that referred to advertising loss. While this does not prove that the Weborganized, blog-driven and -facilitated boycott was the determining factor, as compared to fears of formal regulatory action, the timing strongly suggests that the efficacy of the boycott played a very significant role. + +The first lesson of the Sinclair Stolen Honor story is about commercial mass media themselves. The potential for the exercise of inordinate power by media owners is not an imaginary concern. Here was a publicly traded firm whose managers supported a political party and who planned to use their corporate control over stations reaching one quarter of U.S. households, many in swing states, to put a distinctly political message in front of this large audience. ,{[pg 224]}, + +{won_benkler_7_1.png "Figure 7.1: Sinclair Stock, October 8?November 5, 2004" }http://www.jus.uio.no/sisu + +- We also learn, however, that in the absence of monopoly, such decisions do not determine what everyone sees or hears, and that other mass-media outlets will criticize each other under these conditions. This criticism alone, however, cannot stop a determined media owner from trying to exert its influence in the public sphere, and if placed as Sinclair was, in locations with significant political weight, such intervention could have substantial influence. Second, we learn that the new, network-based media can exert a significant counterforce. They offer a completely new and much more widely open intake basin for insight and commentary. The speed with which individuals were able to set up sites to stake out a position, to collect and make available information relevant to a specific matter of public concern, and to provide a platform for others to exchange views about the appropriate political strategy and tactics was completely different from anything that the economics and organizational structure of mass media make feasible. The third lesson is about the internal dynamics of the networked public sphere. Filtering and synthesis occurred through discussion, trial, and error. Multiple proposals for action surfaced, and the practice of linking allowed most anyone interested who connected to one of the nodes in the network to follow ,{[pg 225]}, quotations and references to get a sense of the broad range of proposals. Different people could coalesce on different modes of action--150,000 signed the petition on stopsinclair.org, while others began to work on the boycott. Setting up the mechanism was trivial, both technically and as a matter of cost--something a single committed individual could choose to do. Pointing and adoption provided the filtering, and feedback about the efficacy, again distributed through a system of cross-references, allowed for testing and accreditation of this course of action. High-visibility sites, like Talkingpointsmemo or the dailyKos, offered transmissions hubs that disseminated information about the various efforts and provided a platform for interest-group-wide tactical discussions. It remains ambiguous to what extent these dispersed loci of public debate still needed mass-media exposure to achieve broad political salience. BoycottSBG.com received more than three hundred thousand unique visitors during its first week of operations, and more than one million page views. It successfully coordinated a campaign that resulted in real effects on advertisers in a large number of geographically dispersed media markets. In this case, at least, mainstream media reports on these efforts were few, and the most immediate "transmission mechanism" of their effect was the analyst's report from Lehman, not the media. It is harder to judge the extent to which those few mainstream media reports that did appear featured in the decision of the analyst to credit the success of the boycott efforts. The fact that mainstream media outlets may have played a role in increasing the salience of the boycott does not, however, take away from the basic role played by these new mechanisms of bringing information and experience to bear on a broad public conversation combined with a mechanism to organize political action across many different locations and social contexts. +={BoycottSBG.com site} + +Our second story focuses not on the new reactive capacity of the networked public sphere, but on its generative capacity. In this capacity, it begins to outline the qualitative change in the role of individuals as potential investigators and commentators, as active participants in defining the agenda and debating action in the public sphere. This story is about Diebold Election Systems (one of the leading manufacturers of electronic voting machines and a subsidiary of one of the foremost ATM manufacturers in the world, with more than $2 billion a year in revenue), and the way that public criticism of its voting machines developed. It provides a series of observations about how the networked information economy operates, and how it allows large numbers of people to participate in a peer-production enterprise of ,{[pg 226]}, news gathering, analysis, and distribution, applied to a quite unsettling set of claims. While the context of the story is a debate over electronic voting, that is not what makes it pertinent to democracy. The debate could have centered on any corporate and government practice that had highly unsettling implications, was difficult to investigate and parse, and was largely ignored by mainstream media. The point is that the networked public sphere did engage, and did successfully turn something that was not a matter of serious public discussion to a public discussion that led to public action. +={capacity:networked public sphere generation+12;Diebold Election Systems+12;electronic voting machines (case study)+12;information production:networked public sphere capacity for+12;networked public sphere:Diebold Election Systems case study+12;peer production:electronic voting machines (case study)+12;policy:Diebold Election Systems case study+12;production of information:networked public sphere capacity for+12;public sphere:Diebold Election Systems case study+12;voting, electronic+12} + +Electronic voting machines were first used to a substantial degree in the United States in the November 2002 elections. Prior to, and immediately following that election, there was sparse mass-media coverage of electronic voting machines. The emphasis was mostly on the newness, occasional slips, and the availability of technical support staff to help at polls. An Atlanta Journal-Constitution story, entitled "Georgia Puts Trust in Electronic Voting, Critics Fret about Absence of Paper Trails,"~{ Duane D. Stanford, Atlanta Journal-Constitution, October 31, 2002, 1A. }~ is not atypical of coverage at the time, which generally reported criticism by computer engineers, but conveyed an overall soothing message about the efficacy of the machines and about efforts by officials and companies to make sure that all would be well. The New York Times report of the Georgia effort did not even mention the critics.~{ Katherine Q. Seelye, "The 2002 Campaign: The States; Georgia About to Plunge into Touch-Screen Voting," New York Times, October 30, 2002, A22. }~ The Washington Post reported on the fears of failure with the newness of the machines, but emphasized the extensive efforts that the manufacturer, Diebold, was making to train election officials and to have hundreds of technicians available to respond to failure.~{ Edward Walsh, "Election Day to Be Test of Voting Process," Washington Post, November 4, 2002, A1. }~ After the election, the Atlanta Journal-Constitution reported that the touch-screen machines were a hit, burying in the text any references to machines that highlighted the wrong candidates or the long lines at the booths, while the Washington Post highlighted long lines in one Maryland county, but smooth operation elsewhere. Later, the Post reported a University of Maryland study that surveyed users and stated that quite a few needed help from election officials, compromising voter privacy.~{ Washington Post, December 12, 2002. }~ Given the centrality of voting mechanisms for democracy, the deep concerns that voting irregularities determined the 2000 presidential elections, and the sense that voting machines would be a solution to the "hanging chads" problem (the imperfectly punctured paper ballots that came to symbolize the Florida fiasco during that election), mass-media reports were remarkably devoid of any serious inquiry into how secure and accurate voting machines were, and included a high quotient of soothing comments from election officials who bought the machines and executives of the manufacturers who sold them. No mass-media outlet sought to go ,{[pg 227]}, behind the claims of the manufacturers about their machines, to inquire into their security or the integrity of their tallying and transmission mechanisms against vote tampering. No doubt doing so would have been difficult. These systems were protected as trade secrets. State governments charged with certifying the systems were bound to treat what access they had to the inner workings as confidential. Analyzing these systems requires high degrees of expertise in computer security. Getting around these barriers is difficult. However, it turned out to be feasible for a collection of volunteers in various settings and contexts on the Net. + +In late January 2003, Bev Harris, an activist focused on electronic voting machines, was doing research on Diebold, which has provided more than 75,000 voting machines in the United States and produced many of the machines used in Brazil's purely electronic voting system. Harris had set up a whistle-blower site as part of a Web site she ran at the time, blackboxvoting.com. Apparently working from a tip, Harris found out about an openly available site where Diebold stored more than forty thousand files about how its system works. These included specifications for, and the actual code of, Diebold's machines and vote-tallying system. In early February 2003, Harris published two initial journalistic accounts on an online journal in New Zealand, Scoop.com--whose business model includes providing an unedited platform for commentators who wish to use it as a platform to publish their materials. She also set up a space on her Web site for technically literate users to comment on the files she had retrieved. In early July of that year, she published an analysis of the results of the discussions on her site, which pointed out how access to the Diebold open site could have been used to affect the 2002 election results in Georgia (where there had been a tightly contested Senate race). In an editorial attached to the publication, entitled "Bigger than Watergate," the editors of Scoop claimed that what Harris had found was nothing short of a mechanism for capturing the U.S. elections process. They then inserted a number of lines that go to the very heart of how the networked information economy can use peer production to play the role of watchdog: +={Harris, Bev} + +_1 We can now reveal for the first time the location of a complete online copy of the original data set. As we anticipate attempts to prevent the distribution of this information we encourage supporters of democracy to make copies of these files and to make them available on websites and file sharing networks: http:// users.actrix.co.nz/dolly/. As many of the files are zip password protected you may need some assistance in opening them, we have found that the utility available at ,{[pg 228]}, the following URL works well: http://www.lostpassword.com. Finally some of the zip files are partially damaged, but these too can be read by using the utility at: http://www.zip-repair.com/. At this stage in this inquiry we do not believe that we have come even remotely close to investigating all aspects of this data; i.e., there is no reason to believe that the security flaws discovered so far are the only ones. Therefore we expect many more discoveries to be made. We want the assistance of the online computing community in this enterprise and we encourage you to file your findings at the forum HERE [providing link to forum]. + +A number of characteristics of this call to arms would have been simply infeasible in the mass-media environment. They represent a genuinely different mind-set about how news and analysis are produced and how censorship and power are circumvented. First, the ubiquity of storage and communications capacity means that public discourse can rely on "see for yourself" rather than on "trust me." The first move, then, is to make the raw materials available for all to see. Second, the editors anticipated that the company would try to suppress the information. Their response was not to use a counterweight of the economic and public muscle of a big media corporation to protect use of the materials. Instead, it was widespread distribution of information--about where the files could be found, and about where tools to crack the passwords and repair bad files could be found-- matched with a call for action: get these files, copy them, and store them in many places so they cannot be squelched. Third, the editors did not rely on large sums of money flowing from being a big media organization to hire experts and interns to scour the files. Instead, they posed a challenge to whoever was interested--there are more scoops to be found, this is important for democracy, good hunting!! Finally, they offered a platform for integration of the insights on their own forum. This short paragraph outlines a mechanism for radically distributed storage, distribution, analysis, and reporting on the Diebold files. + +As the story unfolded over the next few months, this basic model of peer production of investigation, reportage, analysis, and communication indeed worked. It resulted in the decertification of some of Diebold's systems in California, and contributed to a shift in the requirements of a number of states, which now require voting machines to produce a paper trail for recount purposes. The first analysis of the Diebold system based on the files Harris originally found was performed by a group of computer scientists at the Information Security Institute at Johns Hopkins University and released ,{[pg 229]}, as a working paper in late July 2003. The Hopkins Report, or Rubin Report as it was also named after one of its authors, Aviel Rubin, presented deep criticism of the Diebold system and its vulnerabilities on many dimensions. The academic credibility of its authors required a focused response from Diebold. The company published a line-by-line response. Other computer scientists joined in the debate. They showed the limitations and advantages of the Hopkins Report, but also where the Diebold response was adequate and where it provided implicit admission of the presence of a number of the vulnerabilities identified in the report. The report and comments to it sparked two other major reports, commissioned by Maryland in the fall of 2003 and later in January 2004, as part of that state's efforts to decide whether to adopt electronic voting machines. Both studies found a wide range of flaws in the systems they examined and required modifications (see figure 7.2). +={Harris, Bev+1;Rubin, Aviel;Hopkins Report} + +Meanwhile, trouble was brewing elsewhere for Diebold. In early August 2003, someone provided Wired magazine with a very large cache containing thousands of internal e-mails of Diebold. Wired reported that the e-mails were obtained by a hacker, emphasizing this as another example of the laxity of Diebold's security. However, the magazine provided neither an analysis of the e-mails nor access to them. Bev Harris, the activist who had originally found the Diebold materials, on the other hand, received the same cache, and posted the e-mails and memos on her site. Diebold's response was to threaten litigation. Claiming copyright in the e-mails, the company demanded from Harris, her Internet service provider, and a number of other sites where the materials had been posted, that the e-mails be removed. The e-mails were removed from these sites, but the strategy of widely distributed replication of data and its storage in many different topological and organizationally diverse settings made Diebold's efforts ultimately futile. The protagonists from this point on were college students. First, two students at Swarthmore College in Pennsylvania, and quickly students in a number of other universities in the United States, began storing the e-mails and scouring them for evidence of impropriety. In October 2003, Diebold proceeded to write to the universities whose students were hosting the materials. The company invoked provisions of the Digital Millennium Copyright Act that require Web-hosting companies to remove infringing materials when copyright owners notify them of the presence of these materials on their sites. The universities obliged, and required the students to remove the materials from their sites. The students, however, did not disappear quietly into the ,{[pg 230]}, night. + +{won_benkler_7_2.png "Figure 7.2: Analysis of the Diebold Source Code Materials" }http://www.jus.uio.no/sisu + +- On October 21, 2003, they launched a multipronged campaign of what they described as "electronic civil disobedience." First, they kept moving the files from one student to another's machine, encouraging students around the country to resist the efforts to eliminate the material. Second, they injected the materials into FreeNet, the anticensorship peer-to-peer publication network, and into other peer-to-peer file-sharing systems, like eDonkey and BitTorrent. Third, supported by the Electronic Frontier Foundation, one of the primary civil-rights organizations concerned with Internet freedom, the students brought suit against Diebold, seeking a judicial declaration that their posting of the materials was privileged. They won both the insurgent campaign and the formal one. As a practical matter, the materials remained publicly available throughout this period. As a matter of law, the litigation went badly enough for Diebold that the company issued a letter promising not to sue the students. The court nonetheless awarded the students damages and attorneys' fees because it found that Diebold had "knowingly and materially misrepresented" that the publication of the e-mail archive was a copyright violation in its letters to the Internet service providers.~{ /{Online Policy Group v. Diebold}/, Inc., 337 F. Supp. 2d 1195 (2004). }~ ,{[pg 231]}, + +Central from the perspective of understanding the dynamics of the networked public sphere is not, however, the court case--it was resolved almost a year later, after most of the important events had already unfolded--but the efficacy of the students' continued persistent publication in the teeth of the cease-and-desist letters and the willingness of the universities to comply. The strategy of replicating the files everywhere made it impracticable to keep the documents from the public eye. And the public eye, in turn, scrutinized. Among the things that began to surface as users read the files were internal e-mails recognizing problems with the voting system, with the security of the FTP site from which Harris had originally obtained the specifications of the voting systems, and e-mail that indicated that the machines implemented in California had been "patched" or updated after their certification. That is, the machines actually being deployed in California were at least somewhat different from the machines that had been tested and certified by the state. This turned out to have been a critical find. +={Harris, Bev} + +California had a Voting Systems Panel within the office of the secretary of state that reviewed and certified voting machines. On November 3, 2003, two weeks after the students launched their electronic disobedience campaign, the agenda of the panel's meeting was to include a discussion of proposed modifications to one of Diebold's voting systems. Instead of discussing the agenda item, however, one of the panel members made a motion to table the item until the secretary of state had an opportunity to investigate, because "It has come to our attention that some very disconcerting information regarding this item [sic] and we are informed that this company, Diebold, may have installed uncertified software in at least one county before it was certified."~{ California Secretary of State Voting Systems Panel, Meeting Minutes, November 3, 2003, http://www.ss.ca.gov/elections/vsp_min_110303.pdf. }~ The source of the information is left unclear in the minutes. A later report in Wired cited an unnamed source in the secretary of state's office as saying that somebody within the company had provided this information. The timing and context, however, suggest that it was the revelation and discussion of the e-mail memoranda online that played that role. Two of the members of the public who spoke on the record mention information from within the company. One specifically mentions the information gleaned from company e-mails. In the next committee meeting, on December 16, 2003, one member of the public who was in attendance specifically referred to the e-mails on the Internet, referencing in particular a January e-mail about upgrades and changes to the certified systems. By that December meeting, the independent investigation by the secretary of state had found systematic discrepancies between the systems actually installed ,{[pg 232]}, and those tested and certified by the state. The following few months saw more studies, answers, debates, and the eventual decertification of many of the Diebold machines installed in California (see figures 7.3a and 7.3b). + +The structure of public inquiry, debate, and collective action exemplified by this story is fundamentally different from the structure of public inquiry and debate in the mass-media-dominated public sphere of the twentieth century. The initial investigation and analysis was done by a committed activist, operating on a low budget and with no financing from a media company. The output of this initial inquiry was not a respectable analysis by a major player in the public debate. It was access to raw materials and initial observations about them, available to start a conversation. Analysis then emerged from a widely distributed process undertaken by Internet users of many different types and abilities. In this case, it included academics studying electronic voting systems, activists, computer systems practitioners, and mobilized students. When the pressure from a well-financed corporation mounted, it was not the prestige and money of a Washington Post or a New York Times that protected the integrity of the information and its availability for public scrutiny. It was the radically distributed cooperative efforts of students and peer-to-peer network users around the Internet. These efforts were, in turn, nested in other communities of cooperative production--like the free software community that developed some of the applications used to disseminate the e-mails after Swarthmore removed them from the students' own site. There was no single orchestrating power--neither party nor professional commercial media outlet. There was instead a series of uncoordinated but mutually reinforcing actions by individuals in different settings and contexts, operating under diverse organizational restrictions and affordances, to expose, analyze, and distribute criticism and evidence for it. The networked public sphere here does not rely on advertising or capturing large audiences to focus its efforts. What became salient for the public agenda and shaped public discussion was what intensely engaged active participants, rather than what kept the moderate attention of large groups of passive viewers. Instead of the lowest-common-denominator focus typical of commercial mass media, each individual and group can--and, indeed, most likely will--focus precisely on what is most intensely interesting to its participants. Instead of iconic representation built on the scarcity of time slots and space on the air or on the page, we see the emergence of a "see for yourself" culture. Access to underlying documents and statements, and to ,{[pg 233]}, the direct expression of the opinions of others, becomes a central part of the medium. + +{won_benkler_7_3a.png "Figure 7.3a: Diebold Internal E-mails Discovery and Distribution" }http://www.jus.uio.no/sisu + +2~ CRITIQUES OF THE CLAIMS THAT THE INTERNET HAS DEMOCRATIZING EFFECTS +={democratizing effects of Internet:critiques of claims of+12;Internet:democratizing effect of+12;networked public sphere:critiques that Internet democratizes+12;political freedom, public sphere and:critiques that Internet democratizes+12;public sphere:critiques that Internet democratizes+12} + +It is common today to think of the 1990s, out of which came the Supreme Court's opinion in /{Reno v. ACLU}/, as a time of naïve optimism about the Internet, expressing in political optimism the same enthusiasm that drove the stock market bubble, with the same degree of justifiability. An ideal liberal public sphere did not, in fact, burst into being from the Internet, fully grown like Athena from the forehead of Zeus. The detailed criticisms of the early claims about the democratizing effects of the Internet can be characterized as variants of five basic claims: + +{won_benkler_7_3a.png "Figure 7.3b: Internal E-mails Translated to Political and Judicial Action" }http://www.jus.uio.no/sisu + +1. /{Information overload.}/ A basic problem created when everyone can speak is that there will be too many statements, or too much information. Too ,{[pg 234]}, many observations and too many points of view make the problem of sifting through them extremely difficult, leading to an unmanageable din. This overall concern, a variant of the Babel objection, underlies three more specific arguments: that money will end up dominating anyway, that there will be fragmentation of discourse, and that fragmentation of discourse will lead to its polarization. +={Babel objection;information overload and Babel objection} + +/{Money will end up dominating anyway.}/ A point originally raised by Eli Noam is that in this explosively large universe, getting attention will be as difficult as getting your initial message out in the mass-media context, if not more so. The same means that dominated the capacity to speak in the mass-media environment--money--will dominate the capacity to be heard on the Internet, even if it no longer controls the capacity to speak. +={money:as dominant factor} + +/{Fragmentation of attention and discourse.}/ A point raised most explicitly by Cass Sunstein in Republic.com is that the ubiquity of information and the absence of the mass media as condensation points will impoverish public discourse by fragmenting it. There will be no public sphere. ,{[pg 235]}, Individuals will view the world through millions of personally customized windows that will offer no common ground for political discourse or action, except among groups of highly similar individuals who customize their windows to see similar things. +={Sunstein, Cass+1;attention fragmentation;communities:fragmentation of;diversity:fragmentation of communication;fragmentation of communication;norms (social):fragmentation of communication;regulation by social norms:fragmentation of communication;social relations and norms:fragmentation of communication} + +/{Polarization.}/ A descriptively related but analytically distinct critique of Sunstein's was that the fragmentation would lead to polarization. When information and opinions are shared only within groups of likeminded participants, he argued, they tend to reinforce each other's views and beliefs without engaging with alternative views or seeing the concerns and critiques of others. This makes each view more extreme in its own direction and increases the distance between positions taken by opposing camps. +={polarization} + +2. /{Centralization of the Internet.}/ A second-generation criticism of the democratizing effects of the Internet is that it turns out, in fact, not to be as egalitarian or distributed as the 1990s conception had suggested. First, there is concentration in the pipelines and basic tools of communications. Second, and more intractable to policy, even in an open network, a high degree of attention is concentrated on a few top sites--a tiny number of sites are read by the vast majority of readers, while many sites are never visited by anyone. In this context, the Internet is replicating the massmedia model, perhaps adding a few channels, but not genuinely changing anything structural. +={accreditation:concentration of mass-media power+1;centralization of communications;concentration of mass-media power+1;filtering:concentration of mass-media power+1;first-best preferences, mass media and:concentration of mass-media power;Internet:centralization of;media concentration;relevance filtering:concentration of mass-media power} + +Note that the concern with information overload is in direct tension with the second-generation concerns. To the extent that the concerns about Internet concentration are correct, they suggest that the information overload is not a deep problem. Sadly, from the perspective of democracy, it turns out that according to the concentration concern, there are few speakers to which most people listen, just as in the mass-media environment. While this means that the supposed benefits of the networked public sphere are illusory, it also means that the information overload concerns about what happens when there is no central set of speakers to whom most people listen are solved in much the same way that the mass-media model deals with the factual diversity of information, opinion, and observations in large societies--by consigning them to public oblivion. The response to both sets of concerns will therefore require combined consideration of a series of questions: To what extent are the claims of concentration correct? How do they solve the information overload ,{[pg 236]}, problem? To what extent does the observed concentration replicate the mass-media model? +={Babel objection;information overload and Babel objection} + +3. /{Centrality of commercial mass media to the Fourth Estate function.}/ The importance of the press to the political process is nothing new. It earned the press the nickname "the Fourth Estate" (a reference to the three estates that made up the prerevolutionary French Estates-General, the clergy, nobility, and townsmen), which has been in use for at least a hundred and fifty years. In American free speech theory, the press is often described as fulfilling "the watchdog function," deriving from the notion that the public representatives must be watched over to assure they do the public's business faithfully. In the context of the Internet, the concern, most clearly articulated by Neil Netanel, has been that in the modern complex societies in which we live, commercial mass media are critical for preserving the watchdog function of the media. Big, sophisticated, well-funded government and corporate market actors have enormous resources at their disposal to act as they please and to avoid scrutiny and democratic control. Only similarly big, powerful, independently funded media organizations, whose basic market roles are to observe and criticize other large organizations, can match these established elite organizational actors. Individuals and collections of volunteers talking to each other may be nice, but they cannot seriously replace well-funded, economically and politically powerful media. +={Netanel, Neil;filtering:watchdog functionality;networked public sphere:watchdog functionality;peer production:watchdog functionality;political freedom, public sphere and:watchdog functionality;public sphere:watchdog functionality;relevance filtering:watchdog functionality;watchdog functionality} + +4. /{Authoritarian countries can use filtering and monitoring to squelch Internet use.}/ A distinct set of claims and their critiques have to do with the effects of the Internet on authoritarian countries. The critique is leveled at a basic belief supposedly, and perhaps actually, held by some cyberlibertarians, that with enough access to Internet tools freedom will burst out everywhere. The argument is that China, more than any other country, shows that it is possible to allow a population access to the Internet-- it is now home to the second-largest national population of Internet users--and still control that use quite substantially. +={authoritarian control;blocked access:authoritarian control;filtering:by authoritarian countries;government:authoritarian control;monitoring, authoritarian;relevance filtering:by authoritarian countries} + +5. /{Digital divide.}/ While the Internet may increase the circle of participants in the public sphere, access to its tools is skewed in favor of those who already are well-off in society--in terms of wealth, race, and skills. I do not respond to this critique in this chapter. First, in the United States, this is less stark today than it was in the late 1990s. Computers and Internet connections are becoming cheaper and more widely available in public libraries and schools. As they become more central to life, they ,{[pg 237]}, seem to be reaching higher penetration rates, and growth rates among underrepresented groups are higher than the growth rate among the highly represented groups. The digital divide with regard to basic access within advanced economies is important as long as it persists, but seems to be a transitional problem. Moreover, it is important to recall that the democratizing effects of the Internet must be compared to democracy in the context of mass media, not in the context of an idealized utopia. Computer literacy and skills, while far from universal, are much more widely distributed than the skills and instruments of mass-media production. Second, I devote chapter 9 to the question of how and why the emergence specifically of nonmarket production provides new avenues for substantial improvements in equality of access to various desiderata that the market distributes unevenly, both within advanced economies and globally, where the maldistribution is much more acute. While the digital divide critique can therefore temper our enthusiasm for how radical the change represented by the networked information economy may be in terms of democracy, the networked information economy is itself an avenue for alleviating maldistribution. +={digital divide;human welfare:digital divide;welfare:digital divide} + +The remainder of this chapter is devoted to responding to these critiques, providing a defense of the claim that the Internet can contribute to a more attractive liberal public sphere. As we work through these objections, we can develop a better understanding of how the networked information economy responds to or overcomes the particular systematic failures of mass media as platforms for the public sphere. Throughout this analysis, it is comparison of the attractiveness of the networked public sphere to that baseline--the mass-media-dominated public sphere--not comparison to a nonexistent ideal public sphere or to the utopia of "everyone a pamphleteer," that should matter most to our assessment of its democratic promise. + +2~ IS THE INTERNET TOO CHAOTIC, TOO CONCENTRATED, OR NEITHER? +={accreditation:concentration of mass-media power+7;Babel objection+7;centralization of communications+7;channels, transmission:See transport channel policy chaotic, Internet as+7;concentration of mass-media power+7;filtering:concentration of mass-media power+7;filtering:concentration of mass-media power+7;first-best preferences, mass media and:concentration of mass-media power+7;information overload and Babel objection+7;Internet:centralization of+7;media concentration+7;networked public sphere:Internet as concentrated vs. chaotic+7;political freedom, public sphere and:Internet as concentrated vs. chaotic+7;public sphere:Internet as concentrated vs. chaotic+7;relevance filtering:concentration of mass-media power+7} + +The first-generation critique of the claims that the Internet democratizes focused heavily on three variants of the information overload or Babel objection. The basic descriptive proposition that animated the Supreme Court in /{Reno v. ACLU}/ was taken as more or less descriptively accurate: Everyone would be equally able to speak on the Internet. However, this basic observation ,{[pg 238]}, was then followed by a descriptive or normative explanation of why this development was a threat to democracy, or at least not much of a boon. The basic problem that is diagnosed by this line of critique is the problem of attention. When everyone can speak, the central point of failure becomes the capacity to be heard--who listens to whom, and how that question is decided. Speaking in a medium that no one will actually hear with any reasonable likelihood may be psychologically satisfying, but it is not a move in a political conversation. Noam's prediction was, therefore, that there would be a reconcentration of attention: money would reemerge in this environment as a major determinant of the capacity to be heard, certainly no less, and perhaps even more so, than it was in the mass-media environment.~{ Eli Noam, "Will the Internet Be Bad for Democracy?" (November 2001), http:// www.citi.columbia.edu/elinoam/articles/int_bad_dem.htm. }~ Sunstein's theory was different. He accepted Nicholas Negroponte's prediction that people would be reading "The Daily Me," that is, that each of us would create highly customized windows on the information environment that would be narrowly tailored to our unique combination of interests. From this assumption about how people would be informed, he spun out two distinct but related critiques. The first was that discourse would be fragmented. With no six o'clock news to tell us what is on the public agenda, there would be no public agenda, just a fragmented multiplicity of private agendas that never coalesce into a platform for political discussion. The second was that, in a fragmented discourse, individuals would cluster into groups of self-reinforcing, self-referential discussion groups. These types of groups, he argued from social scientific evidence, tend to render their participants' views more extreme and less amenable to the conversation across political divides necessary to achieve reasoned democratic decisions. +={Negroponte, Nicholas;Noam, Eli+1;attention fragmentation+1;communities:fragmentation of+1;diversity:fragmentation of communication+1;norms (social):fragmentation of communication+1;regulation by social norms:fragmentation of communication+1;social relations and norms:fragmentation of communication+1} + +Extensive empirical and theoretical studies of actual use patterns of the Internet over the past five to eight years has given rise to a second-generation critique of the claim that the Internet democratizes. According to this critique, attention is much more concentrated on the Internet than we thought a few years ago: a tiny number of sites are highly linked, the vast majority of "speakers" are not heard, and the democratic potential of the Internet is lost. If correct, these claims suggest that Internet use patterns solve the problem of discourse fragmentation that Sunstein was worried about. Rather than each user reading a customized and completely different "newspaper," the vast majority of users turn out to see the same sites. In a network with a small number of highly visible sites that practically everyone reads, the discourse fragmentation problem is resolved. Because they are seen by most people, the polarization problem too is solved--the highly visible sites are ,{[pg 239]}, not small-group interactions with homogeneous viewpoints. While resolving Sunstein's concerns, this pattern is certainly consistent with Noam's prediction that money would have to be paid to reach visibility, effectively replicating the mass-media model. While centralization would resolve the Babel objection, it would do so only at the expense of losing much of the democratic promise of the Net. + +Therefore, we now turn to the question: Is the Internet in fact too chaotic or too concentrated to yield a more attractive democratic discourse than the mass media did? I suggest that neither is the case. At the risk of appearing a chimera of Goldilocks and Pangloss, I argue instead that the observed use of the network exhibits an order that is not too concentrated and not too chaotic, but rather, if not "just right," at least structures a networked public sphere more attractive than the mass-media-dominated public sphere. + +There are two very distinct types of claims about Internet centralization. The first, and earlier, has the familiar ring of media concentration. It is the simpler of the two, and is tractable to policy. The second, concerned with the emergent patterns of attention and linking on an otherwise open network, is more difficult to explain and intractable to policy. I suggest, however, that it actually stabilizes and structures democratic discourse, providing a better answer to the fears of information overload than either the mass media or any efforts to regulate attention to matters of public concern. + +The media-concentration type argument has been central to arguments about the necessity of open access to broadband platforms, made most forcefully over the past few years by Lawrence Lessig. The argument is that the basic instrumentalities of Internet communications are subject to concentrated markets. This market concentration in basic access becomes a potential point of concentration of the power to influence the discourse made possible by access. Eli Noam's recent work provides the most comprehensive study currently available of the degree of market concentration in media industries. It offers a bleak picture.~{ Eli Noam, "The Internet Still Wide, Open, and Competitive?" Paper presented at The Telecommunications Policy Research Conference, September 2003, http:// www.tprc.org/papers/2003/200/noam_TPRC2003.pdf. }~ Noam looked at markets in basic infrastructure components of the Internet: Internet backbones, Internet service providers (ISPs), broadband providers, portals, search engines, browser software, media player software, and Internet telephony. Aggregating across all these sectors, he found that the Internet sector defined in terms of these components was, throughout most of the period from 1984 to 2002, concentrated according to traditional antitrust measures. Between 1992 and 1998, however, this sector was "highly concentrated" by the Justice Department's measure of market concentration for antitrust purposes. Moreover, the power ,{[pg 240]}, of the top ten firms in each of these markets, and in aggregate for firms that had large market segments in a number of these markets, shows that an ever-smaller number of firms were capturing about 25 percent of the revenues in the Internet sector. A cruder, but consistent finding is the FCC's, showing that 96 percent of homes and small offices get their broadband access either from their incumbent cable operator or their incumbent local telephone carrier.~{ Federal Communications Commission, Report on High Speed Services, December 2003. }~ It is important to recognize that these findings are suggesting potential points of failure for the networked information economy. They are not a critique of the democratic potential of the networked public sphere, but rather show us how we could fail to develop it by following the wrong policies. +={Lessig, Lawrence (Larry);access:broadband services, concentration of+1;broadband networks:concentration in access services+1;concentration in broadband access services+1} + +The risk of concentration in broadband access services is that a small number of firms, sufficiently small to have economic power in the antitrust sense, will control the markets for the basic instrumentalities of Internet communications. Recall, however, that the low cost of computers and the open-ended architecture of the Internet protocol itself are the core enabling facts that have allowed us to transition from the mass-media model to the networked information model. As long as these basic instrumentalities are open and neutral as among uses, and are relatively cheap, the basic economics of nonmarket production described in part I should not change. Under competitive conditions, as technology makes computation and communications cheaper, a well-functioning market should ensure that outcome. Under oligopolistic conditions, however, there is a threat that the network will become too expensive to be neutral as among market and nonmarket production. If basic upstream network connections, server space, and up-to-date reading and writing utilities become so expensive that one needs to adopt a commercial model to sustain them, then the basic economic characteristic that typifies the networked information economy--the relatively large role of nonproprietary, nonmarket production--will have been reversed. However, the risk is not focused solely or even primarily on explicit pricing. One of the primary remaining scarce resources in the networked environment is user time and attention. As chapter 5 explained, owners of communications facilities can extract value from their users in ways that are more subtle than increasing price. In particular, they can make some sites and statements easier to reach and see--more prominently displayed on the screen, faster to load--and sell that relative ease to those who are willing to pay.~{ See Eszter Hargittai, "The Changing Online Landscape: From Free-For-All to Commercial Gatekeeping," http://www.eszter.com/research/pubs/hargittai-onlinelandscape.pdf. }~ In that environment, nonmarket sites are systematically disadvantaged irrespective of the quality of their content. ,{[pg 241]}, + +The critique of concentration in this form therefore does not undermine the claim that the networked information economy, if permitted to flourish, will improve the democratic public sphere. It underscores the threat of excessive monopoly in infrastructure to the sustainability of the networked public sphere. The combination of observations regarding market concentration and an understanding of the importance of a networked public sphere to democratic societies suggests that a policy intervention is possible and desirable. Chapter 11 explains why the relevant intervention is to permit substantial segments of the core common infrastructure--the basic physical transport layer of wireless or fiber and the software and standards that run communications--to be produced and provisioned by users and managed as a commons. + +2~ ON POWER LAW DISTRIBUTIONS, NETWORK TOPOLOGY, AND BEING HEARD +={concentration of Web attention+29;distribution of information:power law distribution of site connections+29;hyperlinking on the Web:power law distribution of site connections+29;Internet:power law distribution of site connections+29;linking on the Web:power law distribution of site connections+29;network topology:power law distribution of site connections+29;networked public sphere:topology and connectivity of+29;political freedom, public sphere and:topology and connectivity of+29;power law distribution of Web connections+29;public sphere:topology and connectivity of+29;referencing on the Web:power law distribution of Web site connections+29;structure of network:power law distribution of Web site connections+29;topology, network:power law distribution of Web site connections+29;Web:power law distribution of Web site connections+29;wireless communications:power law distribution of Web site connections+29} + +A much more intractable challenge to the claim that the networked information economy will democratize the public sphere emerges from observations of a set or phenomena that characterize the Internet, the Web, the blogosphere, and, indeed, most growing networks. In order to extract information out of the universe of statements and communications made possible by the Internet, users are freely adopting practices that lead to the emergence of a new hierarchy. Rather than succumb to the "information overload" problem, users are solving it by congregating in a small number of sites. This conclusion is based on a new but growing literature on the likelihood that a Web page will be linked to by others. The distribution of that probability turns out to be highly skew. That is, there is a tiny probability that any given Web site will be linked to by a huge number of people, and a very large probability that for a given Web site only one other site, or even no site, will link to it. This fact is true of large numbers of very different networks described in physics, biology, and social science, as well as in communications networks. If true in this pure form about Web usage, this phenomenon presents a serious theoretical and empirical challenge to the claim that Internet communications of the sorts we have seen here meaningfully decentralize democratic discourse. It is not a problem that is tractable to policy. We cannot as a practical matter force people to read different things than what they choose to read; nor should we wish to. If users avoid information overload by focusing on a small subset of sites in an otherwise ,{[pg 242]}, open network that allows them to read more or less whatever they want and whatever anyone has written, policy interventions aimed to force a different pattern would be hard to justify from the perspective of liberal democratic theory. + +The sustained study of the distribution of links on the Internet and the Web is relatively new--only a few years old. There is significant theoretical work in a field of mathematics called graph theory, or network topology, on power law distributions in networks, on skew distributions that are not pure power law, and on the mathematically related small-worlds phenomenon in networks. The basic intuition is that, if indeed a tiny minority of sites gets a large number of links, and the vast majority gets few or no links, it will be very difficult to be seen unless you are on the highly visible site. Attention patterns make the open network replicate mass media. While explaining this literature over the next few pages, I show that what is in fact emerging is very different from, and more attractive than, the mass-media-dominated public sphere. + +While the Internet, the Web, and the blogosphere are indeed exhibiting much greater order than the freewheeling, "everyone a pamphleteer" image would suggest, this structure does not replicate a mass-media model. We are seeing a newly shaped information environment, where indeed few are read by many, but clusters of moderately read sites provide platforms for vastly greater numbers of speakers than were heard in the mass-media environment. Filtering, accreditation, synthesis, and salience are created through a system of peer review by information affinity groups, topical or interest based. These groups filter the observations and opinions of an enormous range of people, and transmit those that pass local peer review to broader groups and ultimately to the polity more broadly, without recourse to market-based points of control over the information flow. Intense interest and engagement by small groups that share common concerns, rather than lowest-commondenominator interest in wide groups that are largely alienated from each other, is what draws attention to statements and makes them more visible. This makes the emerging networked public sphere more responsive to intensely held concerns of a much wider swath of the population than the mass media were capable of seeing, and creates a communications process that is more resistant to corruption by money. + +In what way, first, is attention concentrated on the Net? We are used to seeing probability distributions that describe social phenomena following a Gaussian distribution: where the mean and the median are the same and the ,{[pg 243]}, probabilities fall off symmetrically as we describe events that are farther from the median. This is the famous Bell Curve. Some phenomena, however, observed initially in Pareto's work on income distribution and Zipf 's on the probability of the use of English words in text and in city populations, exhibit completely different probability distributions. These distributions have very long "tails"--that is, they are characterized by a very small number of very high-yield events (like the number of words that have an enormously high probability of appearing in a randomly chosen sentence, like "the" or "to") and a very large number of events that have a very low probability of appearing (like the probability that the word "probability" or "blogosphere" will appear in a randomly chosen sentence). To grasp intuitively how unintuitive such distributions are to us, we could think of radio humorist Garrison Keillor's description of the fictitious Lake Wobegon, where "all the children are above average." That statement is amusing because we assume intelligence follows a normal distribution. If intelligence were distributed according to a power law, most children there would actually be below average--the median is well below the mean in such distributions (see figure 7.4). Later work by Herbert Simon in the 1950s, and by Derek de Solla Price in the 1960s, on cumulative advantage in scientific citations~{ Derek de Solla Price, "Networks of Scientific Papers," Science 149 (1965): 510; Herbert Simon, "On a Class of Skew Distribution Function," Biometrica 42 (1955): 425-440, reprinted in Herbert Simon, Models of Man Social and Rational: Mathematical Essays on Rational Human Behavior in a Social Setting (New York: Garland, 1957). }~ presaged an emergence at the end of the 1990s of intense interest in power law characterizations of degree distributions, or the number of connections any point in a network has to other points, in many kinds of networks--from networks of neurons and axons, to social networks and communications and information networks. +={de Solla Price, Derek;Solla Price, Derek (de Solla Price);Keillor, Garrison;Pareto, Vilfredo;Simon, Herbert;Zipf, George} + +{won_benkler_7_4.png "Figure 7.4: Illustration of How Normal Distribution and Power Law Distribution Would Differ in Describing How Many Web Sites Have Few or Many Links Pointing at Them" }http://www.jus.uio.no/sisu + +% image moved above paragraph from start of original books page 244 + +The Internet and the World Wide Web offered a testable setting, where large-scale investigation could be done automatically by studying link structure (who is linked-in to and by whom, who links out and to whom, how these are related, and so on), and where the practical applications of better understanding were easily articulated--such as the design of better search engines. In 1999, Albert-László Barabasi and Reka Albert published a paper in /{Science}/ showing that a variety of networked phenomena have a predictable topology: The distribution of links into and out of nodes on the network follows a power law. There is a very low probability that any vertex, or node, in the network will be very highly connected to many others, and a very large probability that a very large number of nodes will be connected only very loosely, or perhaps not at all. Intuitively, a lot of Web sites link to information that is located on Yahoo!, while very few link to any randomly selected individual's Web site. Barabasi and Albert hypothesized a mechanism ,{[pg 244]}, for this distribution to evolve, which they called "preferential attachment." That is, new nodes prefer to attach to already well-attached nodes. Any network that grows through the addition of new nodes, and in which nodes preferentially attach to nodes that are already well attached, will eventually exhibit this distribution.~{ Albert-Laszio Barabasi and Reka Albert, "Emergence of Scaling in Random Networks," Science 286 (1999): 509. }~ In other words, the rich get richer. At the same time, two computer scientists, Lada Adamic and Bernardo Huberman, published a study in Nature that identified the presence of power law distributions in the number of Web pages in a given site. They hypothesized not that new nodes preferentially attach to old ones, but that each site has an intrinsically different growth rate, and that new sites are formed at an exponential rate.~{ Bernardo Huberman and Lada Adamic, "Growth Dynamics of the World Wide Web," Nature 401 (1999): 131. }~ The intrinsically different growth rates could be interpreted as quality, interest, or perhaps investment of money in site development and marketing. They showed that on these assumptions, a power law distribution would emerge. Since the publication of these articles we have seen an explosion of theoretical and empirical literature on graph theory, or the structure and growth of networks, and particularly on link structure in the World Wide Web. It has consistently shown that the number of links into and out of Web sites follows power laws and that the exponent (the exponential ,{[pg 245]}, factor that determines that the drop-off between the most linked-to site and the second most linked-to site, and the third, and so on, will be so dramatically rapid, and how rapid it is) for inlinks is roughly 2.1 and for outlinks 2.7. +={Albert, Reka;Barabasi, Albert-László+1;Huberman, Bernardo;Adamic, Lada;growth rates of Web sites} + +If one assumes that most people read things by either following links, or by using a search engine, like Google, that heavily relies on counting inlinks to rank its results, then it is likely that the number of visitors to a Web page, and more recently, the number of readers of blogs, will follow a similarly highly skew distribution. The implication for democracy that comes most immediately to mind is dismal. While, as the Supreme Court noted with enthusiasm, on the Internet everyone can be a pamphleteer or have their own soapbox, the Internet does not, in fact, allow individuals to be heard in ways that are substantially more effective than standing on a soapbox in a city square. Many Web pages and blogs will simply go unread, and will not contribute to a more engaged polity. This argument was most clearly made in Barabasi's popularization of his field, Linked: "The most intriguing result of our Web-mapping project was the complete absence of democracy, fairness, and egalitarian values on the Web. We learned that the topology of the Web prevents us from seeing anything but a mere handful of the billion documents out there."~{ Albert-Laszio Barabasi, Linked, How Everything Is Connected to Everything Else and What It Means for Business, Science, and Everyday Life (New York: Penguin, 2003), 56-57. One unpublished quantitative study showed specifically that the skewness holds for political Web sites related to various hot-button political issues in the United States--like abortion, gun control, or the death penalty. A small fraction of the Web sites discussing these issues account for the large majority of links into them. Matthew Hindman, Kostas Tsioutsiouliklis, and Judy Johnson, " `Googelarchy': How a Few Heavily Linked Sites Dominate Politics on the Web," July 28, 2003, http://www.scholar.google.com/url?sa U&q http://www.princeton.edu/~mhindman/googlearchy-hindman.pdf. }~ + +The stories offered in this chapter and throughout this book present a puzzle for this interpretation of the power law distribution of links in the network as re-creating a concentrated medium. The success of Nick Davis's site, BoycottSBG, would be a genuine fluke. The probability that such a site could be established on a Monday, and by Friday of the same week would have had three hundred thousand unique visitors and would have orchestrated a successful campaign, is so small as to be negligible. The probability that a completely different site, StopSinclair.org, of equally network-obscure origins, would be established on the very same day and also successfully catch the attention of enough readers to collect 150,000 signatures on a petition to protest Sinclair's broadcast, rather than wallowing undetected in the mass of self-published angry commentary, is practically insignificant. And yet, intuitively, it seems unsurprising that a large population of individuals who are politically mobilized on the same side of the political map and share a political goal in the public sphere--using a network that makes it trivially simple to set up new points of information and coordination, tell each other about them, and reach and use them from anywhere--would, in fact, inform each other and gather to participate in a political demonstration. We saw ,{[pg 246]}, that the boycott technique that Davis had designed his Web site to facilitate was discussed on TalkingPoints--a site near the top of the power law distribution of political blogs--but that it was a proposal by an anonymous individual who claimed to know what makes local affiliates tick, not of TalkingPoints author Josh Marshall. By midweek, after initially stoking the fires of support for Davis's boycott, Marshall had stepped back, and Davis's site became the clearing point for reports, tactical conversations, and mobilization. Davis not only was visible, but rather than being drowned out by the high-powered transmitter, TalkingPoints, his relationship with the high-visibility site was part of his success. This story alone cannot, of course, "refute" the power law distribution of network links, nor is it offered as a refutation. It does, however, provide a context for looking more closely at the emerging understanding of the topology of the Web, and how it relates to the fears of concentration of the Internet, and the problems of information overload, discourse fragmentation, and the degree to which money will come to dominate such an unstructured and wide-open environment. It suggests a more complex story than simply "the rich get richer" and "you might speak, but no one will hear you." In this case, the topology of the network allowed rapid emergence of a position, its filtering and synthesis, and its rise to salience. Network topology helped facilitate all these components of the public sphere, rather than undermined them. We can go back to the mathematical and computer science literature to begin to see why. +={Davis, Nick;Marshall, Josh} + +Within two months of the publication of Barabasi and Albert's article, Adamic and Huberman had published a letter arguing that, if Barabasi and Albert were right about preferential attachment, then older sites should systematically be among those that are at the high end of the distribution, while new ones will wallow in obscurity. The older sites are already attached, so newer sites would preferentially attach to the older sites. This, in turn, would make them even more attractive when a new crop of Web sites emerged and had to decide which sites to link to. In fact, however, Adamic and Huberman showed that there is no such empirical correlation among Web sites. They argued that their mechanism--that nodes have intrinsic growth rates that are different--better describes the data. In their response, Barabasi and Albert showed that on their data set, the older nodes are actually more connected in a way that follows a power law, but only on average--that is to say, the average number of connections of a class of older nodes related to the average number of links to a younger class of nodes follows a power law. This argued that their basic model was sound, but ,{[pg 247]}, required that they modify their equations to include something similar to what Huberman and Adamic had proposed--an intrinsic growth factor for each node, as well as the preferential connection of new nodes to established nodes.~{ Lada Adamic and Bernardo Huberman, "Power Law Distribution of the World Wide Web," Science 287 (2000): 2115. }~ This modification is important because it means that not every new node is doomed to be unread relative to the old ones, only that on average they are much less likely to be read. It makes room for rapidly growing new nodes, but does not theorize what might determine the rate of growth. It is possible, for example, that money could determine growth rates: In order to be seen, new sites or statements would have to spend money to gain visibility and salience. As the BoycottSBG and Diebold stories suggest, however, as does the Lott story described later in this chapter, there are other ways of achieving immediate salience. In the case of BoycottSBG, it was providing a solution that resonated with the political beliefs of many people and was useful to them for their expression and mobilization. Moreover, the continued presence of preferential attachment suggests that noncommercial Web sites that are already highly connected because of the time they were introduced (like the Electronic Frontier Foundation), because of their internal attractiveness to large communities (like Slashdot), or because of their salience to the immediate interests of users (like BoycottSBG), will have persistent visibility even in the face of large infusions of money by commercial sites. Developments in network topology theory and its relationship to the structure of the empirically mapped real Internet offer a map of the networked information environment that is indeed quite different from the naïve model of "everyone a pamphleteer." To the limited extent that these findings have been interpreted for political meaning, they have been seen as a disappointment--the real world, as it turns out, does not measure up to anything like that utopia. However, that is the wrong baseline. There never has been a complex, large modern democracy in which everyone could speak and be heard by everyone else. The correct baseline is the one-way structure of the commercial mass media. The normatively relevant descriptive questions are whether the networked public sphere provides broader intake, participatory filtering, and relatively incorruptible platforms for creating public salience. I suggest that it does. Four characteristics of network topology structure the Web and the blogosphere in an ordered, but nonetheless meaningfully participatory form. First, at a microlevel, sites cluster--in particular, topically and interest-related sites link much more heavily to each other than to other sites. Second, at a macrolevel, the Web and the blogosphere have ,{[pg 248]}, giant, strongly connected cores--"areas" where 20-30 percent of all sites are highly and redundantly interlinked; that is, tens or hundreds of millions of sites, rather than ten, fifty, or even five hundred television stations. That pattern repeats itself in smaller subclusters as well. Third, as the clusters get small enough, the obscurity of sites participating in the cluster diminishes, while the visibility of the superstars remains high, forming a filtering and transmission backbone for universal intake and local filtering. Fourth and finally, the Web exhibits "small-world" phenomena, making most Web sites reachable through shallow paths from most other Web sites. I will explain each of these below, as well as how they interact to form a reasonably attractive image of the networked public sphere. +={Albert, Reka;Barabasi, Albert-László;Adamic, Lada+1;Huberman, Bernardo;growth rates of Web sites;obscurity of some Web sites;older Web sites, obscurity of;clusters in network topology+7;organizational clustering+7;social clustering+7;topical clustering+7} + +First, links are not smoothly distributed throughout the network. Sites cluster into densely linked "regions" or communities of interest. Computer scientists have looked at clustering from the perspective of what topical or other correlated characteristics describe these relatively high-density interconnected regions of nodes. What they found was perhaps entirely predictable from an intuitive perspective of the network users, but important as we try to understand the structure of information flow on the Web. Web sites cluster into topical and social/organizational clusters. Early work done in the IBM Almaden Research Center on how link structure could be used as a search technique showed that by mapping densely interlinked sites without looking at content, one could find communities of interest that identify very fine-grained topical connections, such as Australian fire brigades or Turkish students in the United States.~{ Ravi Kumar et al., "Trawling the Web for Emerging Cyber-Communities," WWW8/ Computer Networks 31, nos. 11-16 (1999): 1481-1493. }~ A later study out of the NEC Research Institute more formally defined the interlinking that would identify a "community" as one in which the nodes were more densely connected to each other than they were to nodes outside the cluster by some amount. The study also showed that topically connected sites meet this definition. For instance, sites related to molecular biology clustered with each other--in the sense of being more interlinked with each other than with off-topic sites--as did sites about physics and black holes.~{ Gary W. Flake et al., "Self-Organization and Identification of Web Communities," IEEE Computer 35, no. 3 (2002): 66-71. Another paper that showed significant internal citations within topics was Soumen Chakrabati et al., "The Structure of Broad Topics on the Web," WWW2002, Honolulu, HI, May 7-11, 2002. }~ Lada Adamic and Natalie Glance recently showed that liberal political blogs and conservative political blogs densely interlink with each other, mostly pointing within each political leaning but with about 15 percent of links posted by the most visible sites also linking across the political divide.~{ Lada Adamic and Natalie Glance, "The Political Blogosphere and the 2004 Election: Divided They Blog," March 1, 2005, http://www.blogpulse.com/papers/2005/ AdamicGlanceBlogWWW.pdf. }~ Physicists analyze clustering as the property of transitivity in networks: the increased probability that if node A is connected to node B, and node B is connected to node C, that node A also will be connected to node C, forming a triangle. Newman has shown that ,{[pg 249]}, the clustering coefficient of a network that exhibits power law distribution of connections or degrees--that is, its tendency to cluster--is related to the exponent of the distribution. At low exponents, below 2.333, the clustering coefficient becomes high. This explains analytically the empirically observed high level of clustering on the Web, whose exponent for inlinks has been empirically shown to be 2.1.~{ M.E.J. Newman, "The Structure and Function of Complex Networks," Society for Industrial and Applied Mathematics Review 45, section 4.2.2 (2003): 167-256; S. N. Dorogovstev and J.F.F. Mendes, Evolution of Networks: From Biological Nets to the Internet and WWW (Oxford: Oxford University Press, 2003). }~ +={Glance, Natalie} + +Second, at a macrolevel and in smaller subclusters, the power law distribution does not resolve into everyone being connected in a mass-media model relationship to a small number of major "backbone" sites. As early as 1999, Broder and others showed that a very large number of sites occupy what has been called a giant, strongly connected core.~{ This structure was first described by Andrei Broder et al., "Graph Structure of the Web," paper presented at www9 conference (1999), http://www.almaden.ibm.com/ webfountain/resources/GraphStructureintheWeb.pdf. It has since been further studied, refined, and substantiated in various studies. }~ That is, nodes within this core are heavily linked and interlinked, with multiple redundant paths among them. Empirically, as of 2001, this structure was comprised of about 28 percent of nodes. At the same time, about 22 percent of nodes had links into the core, but were not linked to from it--these may have been new sites, or relatively lower-interest sites. The same proportion of sites was linked-to from the core, but did not link back to it--these might have been ultimate depositories of documents, or internal organizational sites. Finally, roughly the same proportion of sites occupied "tendrils" or "tubes" that cannot reach, or be reached from, the core. Tendrils can be reached from the group of sites that link into the strongly connected core or can reach into the group that can be connected to from the core. Tubes connect the inlinking sites to the outlinked sites without going through the core. About 10 percent of sites are entirely isolated. This structure has been called a "bow tie"--with a large core and equally sized in- and outflows to and from that core (see figure 7.5). +={Broder, Andrei;backbone Web sites+2;bow tie structure of Web+2;clusters in network topology:bow tie structure of Web+2;core Web sites+2;Internet:strongly connected Web sites+2;network topology:strongly connected Web sites+2;power law distribution of Web connections:strongly connected Web sites+2;strongly connected Web sites+2;structure of network:strongly connected Web sites+2;tendrils (Web topology)+2;core Web sites+2;topology, network:strongly connected Web sites+2;tubes (Web topology)+2;Web:backbone sites+2;wireless communications:backbone sites+2} + +{won_benkler_7_5.png "Figure 7.5: Bow Tie Structure of the Web" }http://www.jus.uio.no/sisu + +% image moved above paragraph from start of original book page 250 + +One way of interpreting this structure as counterdemocratic is to say: This means that half of all Web sites are not reachable from the other half--the "IN," "tendrils," and disconnected portions cannot be reached from any of the sites in SCC and OUT. This is indeed disappointing from the "everyone a pamphleteer" perspective. On the other hand, one could say that half of all Web pages, the SCC and OUT components, are reachable from IN and SCC. That is, hundreds of millions of pages are reachable from hundreds of millions of potential entry points. This represents a very different intake function and freedom to speak in a way that is potentially accessible to others than a five-hundred-channel, mass-media model. More significant yet, Dill and others showed that the bow tie structure appears not only at the level of the Web as a whole, but repeats itself within clusters. That is, the Web ,{[pg 250]}, appears to show characteristics of self-similarity, up to a point--links within clusters also follow a power law distribution and cluster, and have a bow tie structure of similar proportions to that of the overall Web. Tying the two points about clustering and the presence of a strongly connected core, Dill and his coauthors showed that what they called "thematically unified clusters," such as geographically or content-related groupings of Web sites, themselves exhibit these strongly connected cores that provided a thematically defined navigational backbone to the Web. It is not that one or two major sites were connected to by all thematically related sites; rather, as at the network level, on the order of 25-30 percent were highly interlinked, and another 25 percent were reachable from within the strongly connected core.~{ Dill et al., "Self-Similarity in the Web" (San Jose, CA: IBM Almaden Research Center, 2001); S. N. Dorogovstev and J.F.F. Mendes, Evolution of Networks. }~ Moreover, when the data was pared down to treat only the home page, rather than each Web page within a single site as a distinct "node" (that is, everything that came under www.foo.com was treated as one node, as opposed to the usual method where www.foo.com, www.foo.com/nonsuch, and www.foo.com/somethingelse are each treated as a separate node), fully 82 percent of the nodes were in the strongly connected core, and an additional 13 percent were reachable from the SCC as the OUT group. +={Dill, Stephen} + +Third, another finding of Web topology and critical adjustment to the ,{[pg 251]}, basic Barabasi and Albert model is that when the topically or organizationally related clusters become small enough--on the order of hundreds or even low thousands of Web pages--they no longer follow a pure power law distribution. Instead, they follow a distribution that still has a very long tail-- these smaller clusters still have a few genuine "superstars"--but the body of the distribution is substantially more moderate: beyond the few superstars, the shape of the link distribution looks a little more like a normal distribution. Instead of continuing to drop off exponentially, many sites exhibit a moderate degree of connectivity. Figure 7.6 illustrates how a hypothetical distribution of this sort would differ both from the normal and power law distributions illustrated in figure 7.4. David Pennock and others, in their paper describing these empirical findings, hypothesized a uniform component added to the purely exponential original Barabasi and Albert model. This uniform component could be random (as they modeled it), but might also stand for quality of materials, or level of interest in the site by participants in the smaller cluster. At large numbers of nodes, the exponent dominates the uniform component, accounting for the pure power law distribution when looking at the Web as a whole, or even at broadly defined topics. In smaller clusters of sites, however, the uniform component begins to exert a stronger pull on the distribution. The exponent keeps the long tail intact, but the uniform component accounts for a much more moderate body. Many sites will have dozens, or even hundreds of links. The Pennock paper looked at sites whose number was reduced by looking only at sites of certain organizations--universities or public companies. Chakrabarti and others later confirmed this finding for topical clusters as well. That is, when they looked at small clusters of topically related sites, the distribution of links still has a long tail for a small number of highly connected sites in every topic, but the body of the distribution diverges from a power law distribution, and represents a substantial proportion of sites that are moderately linked.~{ Soumen Chakrabarti et al., "The Structure of Broad Topics on the Web," WWW2002, Honolulu, HI, May 7-11, 2002. }~ Even more specifically, Daniel Drezner and Henry Farrell reported that the Pennock modification better describes distribution of links specifically to and among political blogs.~{ Daniel W. Drezner and Henry Farrell, "The Power and Politics of Blogs" (July 2004), http://www.danieldrezner.com/research/blogpaperfinal.pdf. }~ +={Albert, Reka;Chakrabarti, Soumen;Drezner, Daniel;Farrell, Henry;Pennock, David;Barabasi, Albert-László;power law distribution of Web connections:uniform component of moderate connectivity;structure of network:moderately linked sites;topology, network:moderately linked sites;network topology:moderately linked sites;obscurity of some Web sites+1} + +{won_benkler_7_6.png "Figure 7.6: Illustration of a Skew Distribution That Does Not Follow a Power Law" }http://www.jus.uio.no/sisu + +% image moved above paragraph from start of original book page 252 + +These findings are critical to the interpretation of the distribution of links as it relates to human attention and communication. There is a big difference between a situation where no one is looking at any of the sites on the low end of the distribution, because everyone is looking only at the superstars, and a situation where dozens or hundreds of sites at the low end are looking at each other, as well as at the superstars. The former leaves all but the very ,{[pg 252]}, few languishing in obscurity, with no one to look at them. The latter, as explained in more detail below, offers a mechanism for topically related and interest-based clusters to form a peer-reviewed system of filtering, accreditation, and salience generation. It gives the long tail on the low end of the distribution heft (and quite a bit of wag). + +The fourth and last piece of mapping the network as a platform for the public sphere is called the "small-worlds effect." Based on Stanley Milgram's sociological experiment and on mathematical models later proposed by Duncan Watts and Steven Strogatz, both theoretical and empirical work has shown that the number of links that must be traversed from any point in the network to any other point is relatively small.~{ D. J. Watts and S. H. Strogatz, "Collective Dynamics of `Small World' Networks," Nature 393 (1998): 440-442; D. J. Watts, Small Worlds: The Dynamics of Networks Between Order and Randomness (Princeton, NJ: Princeton University Press, 1999). }~ Fairly shallow "walks"-- that is, clicking through three or four layers of links--allow a user to cover a large portion of the Web. +={Milgram, Stanley;Strogatz, Steven;Watts, Duncan;blogs:small-worlds effects;small-worlds effect+3} + +What is true of the Web as a whole turns out to be true of the blogosphere as well, and even of the specifically political blogosphere. Early 2003 saw increasing conversations in the blogosphere about the emergence of an "Alist," a number of highly visible blogs that were beginning to seem more like mass media than like blogs. In two blog-based studies, Clay Shirky and then Jason Kottke published widely read explanations of how the blogosphere ,{[pg 253]}, was simply exhibiting the power law characteristics common on the Web.~{ Clay Shirky, "Power Law, Weblogs, and Inequality" (February 8, 2003), http:// www.shirky.com/writings/powerlaw_weblog.htm; Jason Kottke, "Weblogs and Power Laws" (February 9, 2003), http://www.kottke.org/03/02/weblogs-and-power-laws. }~ The emergence in 2003 of discussions of this sort in the blogosphere is, it turns out, hardly surprising. In a time-sensitive study also published in 2003, Kumar and others provided an analysis of the network topology of the blogosphere. They found that it was very similar to that of the Web as a whole--both at the macro- and microlevels. Interestingly, they found that the strongly connected core only developed after a certain threshold, in terms of total number of nodes, had been reached, and that it began to develop extensively only in 2001, reached about 20 percent of all blogs in 2002, and continued to grow rapidly. They also showed that what they called the "community" structure--the degree of clustering or mutual pointing within groups--was high, an order of magnitude more than a random graph with a similar power law exponent would have generated. Moreover, the degree to which a cluster is active or inactive, highly connected or not, changes over time. In addition to time-insensitive superstars, there are also flare-ups of connectivity for sites depending on the activity and relevance of their community of interest. This latter observation is consistent with what we saw happen for BoycottSBG.com. Kumar and his collaborators explained these phenomena by the not-too-surprising claim that bloggers link to each other based on topicality--that is, their judgment of the quality and relevance of the materials--not only on the basis of how well connected they are already.~{ Ravi Kumar et al., "On the Bursty Evolution of Blogspace," Proceedings of WWW2003, May 20-24, 2003, http://www2003.org/cdrom/papers/refereed/p477/ p477-kumar/p477-kumar.htm. }~ +={Kottke, Jason;Kumar, Ravi;Shirky, Clay;clusters in network topology+5;network topology:emergent ordered structure+5;structure of network:emergent ordered structure+5;topology, network:emergent ordered structure+5} + +This body of literature on network topology suggests a model for how order has emerged on the Internet, the World Wide Web, and the blogosphere. The networked public sphere allows hundreds of millions of people to publish whatever and whenever they please without disintegrating into an unusable cacophony, as the first-generation critics argued, and it filters and focuses attention without re-creating the highly concentrated model of the mass media that concerned the second-generation critique. We now know that the network at all its various layers follows a degree of order, where some sites are vastly more visible than most. This order is loose enough, however, and exhibits a sufficient number of redundant paths from an enormous number of sites to another enormous number, that the effect is fundamentally different from the small number of commercial professional editors of the mass media. + +Individuals and individual organizations cluster around topical, organizational, or other common features. At a sufficiently fine-grained degree of clustering, a substantial proportion of the clustered sites are moderately connected, ,{[pg 254]}, and each can therefore be a point of intake that will effectively transmit observations or opinions within and among the users of that topical or interest-based cluster. Because even in small clusters the distribution of links still has a long tail, these smaller clusters still include high-visibility nodes. These relatively high-visibility nodes can serve as points of transfer to larger clusters, acting as an attention backbone that transmits information among clusters. Subclusters within a general category--such as liberal and conservative blogs clustering within the broader cluster of political blogs-- are also interlinked, though less densely than within-cluster connectivity. The higher level or larger clusters again exhibit a similar feature, where higher visibility nodes can serve as clearinghouses and connectivity points among clusters and across the Web. These are all highly connected with redundant links within a giant, strongly connected core--comprising more than a quarter of the nodes in any given level of cluster. The small-worlds phenomenon means that individual users who travel a small number of different links from similar starting points within a cluster cover large portions of the Web and can find diverse sites. By then linking to them on their own Web sites, or giving them to others by e-mail or blog post, sites provide multiple redundant paths open to many users to and from most statements on the Web. High-visibility nodes amplify and focus on given statements, and in this regard, have greater power in the information environment they occupy. However, there is sufficient redundancy of paths through high-visibility nodes that no single node or small collection of nodes can control the flow of information in the core and around the Web. This is true both at the level of the cluster and at the level of the Web as a whole. + +The result is an ordered system of intake, filtering, and synthesis that can in theory emerge in networks generally, and empirically has been shown to have emerged on the Web. It does not depend on single points of control. It avoids the generation of a din through which no voice can be heard, as the fears of fragmentation predicted. And, while money may be useful in achieving visibility, the structure of the Web means that money is neither necessary nor sufficient to grab attention--because the networked information economy, unlike its industrial predecessor, does not offer simple points of dissemination and control for purchasing assured attention. What the network topology literature allows us to do, then, is to offer a richer, more detailed, and empirically supported picture of how the network can be a platform for the public sphere that is structured in a fundamentally different way than the mass-media model. The problem is approached ,{[pg 255]}, through a self-organizing principle, beginning with communities of interest on smallish scales, practices of mutual pointing, and the fact that, with freedom to choose what to see and who to link to, with some codependence among the choices of individuals as to whom to link, highly connected points emerge even at small scales, and continue to be replicated with everlarger visibility as the clusters grow. Without forming or requiring a formal hierarchy, and without creating single points of control, each cluster generates a set of sites that offer points of initial filtering, in ways that are still congruent with the judgments of participants in the highly connected small cluster. The process is replicated at larger and more general clusters, to the point where positions that have been synthesized "locally" and "regionally" can reach Web-wide visibility and salience. It turns out that we are not intellectual lemmings. We do not use the freedom that the network has made possible to plunge into the abyss of incoherent babble. Instead, through iterative processes of cooperative filtering and "transmission" through the high visibility nodes, the low-end thin tail turns out to be a peer-produced filter and transmission medium for a vastly larger number of speakers than was imaginable in the mass-media model. + +The effects of the topology of the network are reinforced by the cultural forms of linking, e-mail lists, and the writable Web. The network topology literature treats every page or site as a node. The emergence of the writable Web, however, allows each node to itself become a cluster of users and posters who, collectively, gain salience as a node. Slashdot is "a node" in the network as a whole, one that is highly linked and visible. Slashdot itself, however, is a highly distributed system for peer production of observations and opinions about matters that people who care about information technology and communications ought to care about. Some of the most visible blogs, like the dailyKos, are cooperative blogs with a number of authors. More important, the major blogs receive input--through posts or e-mails-- from their users. Recall, for example, that the original discussion of a Sinclair boycott that would focus on local advertisers arrived on TalkingPoints through an e-mail comment from a reader. Talkingpoints regularly solicits and incorporates input from and research by its users. The cultural practice of writing to highly visible blogs with far greater ease than writing a letter to the editor and with looser constraints on what gets posted makes these nodes themselves platforms for the expression, filtering, and synthesis of observations and opinions. Moreover, as Drezner and Farrell have shown, blogs have developed cultural practices of mutual citation--when one blogger ,{[pg 256]}, finds a source by reading another, the practice is to link to the original blog, not only directly to the underlying source. Jack Balkin has argued that the culture of linking more generally and the "see for yourself" culture also significantly militate against fragmentation of discourse, because users link to materials they are commenting on, even in disagreement. +={Drezner, Daniel;Farrell, Henry;Balkin, Jack;attention fragmentation+1;communities:fragmentation of+1;diversity:fragmentation of communication+1;fragmentation of communication+1;norms (social):fragmentation of communication+1;regulation by social norms:fragmentation of communication+1;social relations and norms:fragmentation of communication+1} + +Our understanding of the emerging structure of the networked information environment, then, provides the basis for a response to the family of criticisms of the first generation claims that the Internet democratizes. Recall that these criticisms, rooted in the problem of information overload, or the Babel objection, revolved around three claims. The first claim was that the Internet would result in a fragmentation of public discourse. The clustering of topically related sites, such as politically oriented sites, and of communities of interest, the emergence of high-visibility sites that the majority of sites link to, and the practices of mutual linking show quantitatively and qualitatively what Internet users likely experience intuitively. While there is enormous diversity on the Internet, there are also mechanisms and practices that generate a common set of themes, concerns, and public knowledge around which a public sphere can emerge. Any given site is likely to be within a very small number of clicks away from a site that is visible from a very large number of other sites, and these form a backbone of common materials, observations, and concerns. All the findings of power law distribution of linking, clustering, and the presence of a strongly connected core, as well as the linking culture and "see for yourself," oppose the fragmentation prediction. Users self-organize to filter the universe of information that is generated in the network. This self-organization includes a number of highly salient sites that provide a core of common social and cultural experiences and knowledge that can provide the basis for a common public sphere, rather than a fragmented one. + +The second claim was that fragmentation would cause polarization. Because like-minded people would talk only to each other, they would tend to amplify their differences and adopt more extreme versions of their positions. Given that the evidence demonstrates there is no fragmentation, in the sense of a lack of a common discourse, it would be surprising to find higher polarization because of the Internet. Moreover, as Balkin argued, the fact that the Internet allows widely dispersed people with extreme views to find each other and talk is not a failure for the liberal public sphere, though it may present new challenges for the liberal state in constraining extreme action. Only polarization of discourse in society as a whole can properly be ,{[pg 257]}, considered a challenge to the attractiveness of the networked public sphere. However, the practices of linking, "see for yourself," or quotation of the position one is criticizing, and the widespread practice of examining and criticizing the assumptions and assertions of one's interlocutors actually point the other way, militating against polarization. A potential counterargument, however, was created by the most extensive recent study of the political blogosphere. In that study, Adamic and Glance showed that only about 10 percent of the links on any randomly selected political blog linked to a site across the ideological divide. The number increased for the "A-list" political blogs, which linked across the political divide about 15 percent of the time. The picture that emerges is one of distinct "liberal" and "conservative" spheres of conversation, with very dense links within, and more sparse links between them. On one interpretation, then, although there are salient sites that provide a common subject matter for discourse, actual conversations occur in distinct and separate spheres--exactly the kind of setting that Sunstein argued would lead to polarization. Two of the study's findings, however, suggest a different interpretation. The first was that there was still a substantial amount of cross-divide linking. One out of every six or seven links in the top sites on each side of the divide linked to the other side in roughly equal proportions (although conservatives tended to link slightly more overall--both internally and across the divide). The second was, that in an effort to see whether the more closely interlinked conservative sites therefore showed greater convergence "on message," Adamic and Glance found that greater interlinking did not correlate with less diversity in external (outside of the blogosphere) reference points.~{ Both of these findings are consistent with even more recent work by Hargittai, E., J. Gallo and S. Zehnder, "Mapping the Political Blogosphere: An Analysis of LargeScale Online Political Discussions," 2005. Poster presented at the International Communication Association meetings, New York. }~ Together, these findings suggest a different interpretation. Each cluster of more or less like-minded blogs tended to read each other and quote each other much more than they did the other side. This operated not so much as an echo chamber as a forum for working out of observations and interpretations internally, among likeminded people. Many of these initial statements or inquiries die because the community finds them uninteresting or fruitless. Some reach greater salience, and are distributed through the high-visibility sites throughout the community of interest. Issues that in this form reached political salience became topics of conversation and commentary across the divide. This is certainly consistent with both the BoycottSBG and Diebold stories, where we saw a significant early working out of strategies and observations before the criticism reached genuine political salience. There would have been no point for opponents to link to and criticize early ideas kicked around within the community, ,{[pg 258]}, like opposing Sinclair station renewal applications. Only after a few days, when the boycott was crystallizing, would opponents have reason to point out the boycott effort and discuss it. This interpretation also well characterizes the way in which the Trent Lott story described later in this chapter began percolating on the liberal side of the blogosphere, but then migrated over to the center-right. +={Adamic, Lada;Lott, Trent;Glance, Natalie;polarization} + +The third claim was that money would reemerge as the primary source of power brokerage because of the difficulty of getting attention on the Net. Descriptively, it shares a prediction with the second-generation claims: Namely, that the Internet will centralize discourse. It differs in the mechanism of concentration: it will not be the result of an emergent property of large-scale networks, but rather of an old, tried-and-true way of capturing the political arena--money. But the peer-production model of filtering and discussion suggests that the networked public sphere will be substantially less corruptible by money. In the interpretation that I propose, filtering for the network as a whole is done as a form of nested peer-review decisions, beginning with the speaker's closest information affinity group. Consistent with what we have been seeing in more structured peer-production projects like /{Wikipedia}/, Slashdot, or free software, communities of interest use clustering and mutual pointing to peer produce the basic filtering mechanism necessary for the public sphere to be effective and avoid being drowned in the din of the crowd. The nested structure of the Web, whereby subclusters form relatively dense higher-level clusters, which then again combine into even higher-level clusters, and in each case, have a number of high-end salient sites, allows for the statements that pass these filters to become globally salient in the relevant public sphere. This structure, which describes the analytic and empirical work on the Web as a whole, fits remarkably well as a description of the dynamics we saw in looking more closely at the success of the boycott on Sinclair, as well as the successful campaign to investigate and challenge Diebold's voting machines. +={centralization of communications+4;money:centralization of communications+4;filtering+4;relevance filtering+4} + +The peer-produced structure of the attention backbone suggests that money is neither necessary nor sufficient to attract attention in the networked public sphere (although nothing suggests that money has become irrelevant to political attention given the continued importance of mass media). It renders less surprising Howard Dean's strong campaign for the Democratic presidential primaries in 2003 and the much more stable success of MoveOn.org since the late 1990s. These suggest that attention on the network has more to do with mobilizing the judgments, links, and cooperation ,{[pg 259]}, of large bodies of small-scale contributors than with applying large sums of money. There is no obvious broadcast station that one can buy in order to assure salience. There are, of course, the highly visible sites, and they do offer a mechanism of getting your message to large numbers of people. However, the degree of engaged readership, interlinking, and clustering suggests that, in fact, being exposed to a certain message in one or a small number of highly visible places accounts for only a small part of the range of "reading" that gets done. More significantly, it suggests that reading, as opposed to having a conversation, is only part of what people do in the networked environment. In the networked public sphere, receiving information or getting out a finished message are only parts, and not necessarily the most important parts, of democratic discourse. The central desideratum of a political campaign that is rooted in the Internet is the capacity to engage users to the point that they become effective participants in a conversation and an effort; one that they have a genuine stake in and that is linked to a larger, society-wide debate. This engagement is not easily purchased, nor is it captured by the concept of a well-educated public that receives all the information it needs to be an informed citizenry. Instead, it is precisely the varied modes of participation in small-, medium-, and large-scale conversations, with varied but sustained degrees of efficacy, that make the public sphere of the networked environment different, and more attractive, than was the mass-media-based public sphere. +={Dean, Howard;Web:backbone sites+1;wireless communications:backbone sites+1;access:large-audience programming+1;capacity:diversity of content in large-audience media+1;diversity:large-audience programming+1;first-best preferences, mass media and:large-audience programming+1;information flow:large-audience programming+1;information production inputs:large-audience programming+1;inputs to production:large-audience programming+1;large-audience programming:susceptibility of networked public sphere+1;lowest-common-denominator programming+1;production inputs:large-audience programming;television:large-audience programming+1} + +The networked public sphere is not only more resistant to control by money, but it is also less susceptible to the lowest-common-denominator orientation that the pursuit of money often leads mass media to adopt. Because communication in peer-produced media starts from an intrinsic motivation--writing or commenting about what one cares about--it begins with the opposite of lowest common denominator. It begins with what irks you, the contributing peer, individually, the most. This is, in the political world, analogous to Eric Raymond's claim that every free or open-source software project begins with programmers with an itch to scratch--something directly relevant to their lives and needs that they want to fix. The networked information economy, which makes it possible for individuals alone and in cooperation with others to scour the universe of politically relevant events, to point to them, and to comment and argue about them, follows a similar logic. This is why one freelance writer with lefty leanings, Russ Kick, is able to maintain a Web site, The Memory Hole, with documents that he gets by filing Freedom of Information Act requests. In April ,{[pg 260]}, 2004, Kick was the first to obtain the U.S. military's photographs of the coffins of personnel killed in Iraq being flown home. No mainstream news organization had done so, but many published the photographs almost immediately after Kick had obtained them. Like free software, like Davis and the bloggers who participated in the debates over the Sinclair boycott, or the students who published the Diebold e-mails, the decision of what to publish does not start from a manager's or editor's judgment of what would be relevant and interesting to many people without being overly upsetting to too many others. It starts with the question: What do I care about most now? +={Raymond, Eric;Davis, Nick;Kick, Russ;advertiser-supported media:lowest-common-denominator programming;blocked access:large-audience programming} + +To conclude, we need to consider the attractiveness of the networked public sphere not from the perspective of the mid-1990s utopianism, but from the perspective of how it compares to the actual media that have dominated the public sphere in all modern democracies. The networked public sphere provides an effective nonmarket alternative for intake, filtering, and synthesis outside the market-based mass media. This nonmarket alternative can attenuate the influence over the public sphere that can be achieved through control over, or purchase of control over, the mass media. It offers a substantially broader capture basin for intake of observations and opinions generated by anyone with a stake in the polity, anywhere. It appears to have developed a structure that allows for this enormous capture basin to be filtered, synthesized, and made part of a polity-wide discourse. This nested structure of clusters of communities of interest, typified by steadily increasing visibility of superstar nodes, allows for both the filtering and salience to climb up the hierarchy of clusters, but offers sufficient redundant paths and interlinking to avoid the creation of a small set of points of control where power can be either directly exercised or bought. + +There is, in this story, an enormous degree of contingency and factual specificity. That is, my claims on behalf of the networked information economy as a platform for the public sphere are not based on general claims about human nature, the meaning of liberal discourse, context-independent efficiency, or the benevolent nature of the technology we happen to have stumbled across at the end of the twentieth century. They are instead based on, and depend on the continued accuracy of, a description of the economics of fabrication of computers and network connections, and a description of the dynamics of linking in a network of connected nodes. As such, my claim is not that the Internet inherently liberates. I do not claim that commonsbased production of information, knowledge, and culture will win out by ,{[pg 261]}, some irresistible progressive force. That is what makes the study of the political economy of information, knowledge, and culture in the networked environment directly relevant to policy. The literature on network topology suggests that, as long as there are widely distributed capabilities to publish, link, and advise others about what to read and link to, networks enable intrinsic processes that allow substantial ordering of the information. The pattern of information flow in such a network is more resistant to the application of control or influence than was the mass-media model. But things can change. Google could become so powerful on the desktop, in the e-mail utility, and on the Web, that it will effectively become a supernode that will indeed raise the prospect of a reemergence of a mass-media model. Then the politics of search engines, as Lucas Introna and Helen Nissenbaum called it, become central. The zeal to curb peer-to-peer file sharing of movies and music could lead to a substantial redesign of computing equipment and networks, to a degree that would make it harder for end users to exchange information of their own making. Understanding what we will lose if such changes indeed warp the topology of the network, and through it the basic structure of the networked public sphere, is precisely the object of this book as a whole. For now, though, let us say that the networked information economy as it has developed to this date has a capacity to take in, filter, and synthesize observations and opinions from a population that is orders of magnitude larger than the population that was capable of being captured by the mass media. It has done so without re-creating identifiable and reliable points of control and manipulation that would replicate the core limitation of the mass-media model of the public sphere--its susceptibility to the exertion of control by its regulators, owners, or those who pay them. +={Introna, Lucas;Nissenbaum, Helen} + +2~ WHO WILL PLAY THE WATCHDOG FUNCTION? +={filtering:watchdog functionality+5;networked public sphere:watchdog functionality+5;peer production:watchdog functionality+5;political freedom, public sphere and:watchdog functionality+5;public sphere:watchdog functionality+5;relevance filtering:watchdog functionality+5;watchdog functionality+5} + +A distinct critique leveled at the networked public sphere as a platform for democratic politics is the concern for who will fill the role of watchdog. Neil Netanel made this argument most clearly. His concern was that, perhaps freedom of expression for all is a good thing, and perhaps we could even overcome information overflow problems, but we live in a complex world with powerful actors. Government and corporate power is large, and individuals, no matter how good their tools, cannot be a serious alternative to a well-funded, independent press that can pay investigative reporters, defend lawsuits, and generally act like the New York Times and the Washington Post ,{[pg 262]}, when they published the Pentagon Papers in the teeth of the Nixon administration's resistance, providing some of the most damning evidence against the planning and continued prosecution of the war in Vietnam. Netanel is cognizant of the tensions between the need to capture large audiences and sell advertising, on the one hand, and the role of watchdog, on the other. He nonetheless emphasizes that the networked public sphere cannot investigate as deeply or create the public salience that the mass media can. These limitations make commercial mass media, for all their limitations, necessary for a liberal public sphere. +={Netanel, Neil} + +This diagnosis of the potential of the networked public sphere underrepresents its productive capacity. The Diebold story provides in narrative form a detailed response to each of the concerns. The problem of voting machines has all the characteristics of an important, hard subject. It stirs deep fears that democracy is being stolen, and is therefore highly unsettling. It involves a difficult set of technical judgments about the functioning of voting machines. It required exposure and analysis of corporate-owned materials in the teeth of litigation threats and efforts to suppress and discredit the criticism. At each juncture in the process, the participants in the critique turned iteratively to peer production and radically distributed methods of investigation, analysis, distribution, and resistance to suppression: the initial observations of the whistle-blower or the hacker; the materials made available on a "see for yourself" and "come analyze this and share your insights" model; the distribution by students; and the fallback option when their server was shut down of replication around the network. At each stage, a peer-production solution was interposed in place of where a well-funded, high-end mass-media outlet would have traditionally applied funding in expectation of sales of copy. And it was only after the networked public sphere developed the analysis and debate that the mass media caught on, and then only gingerly. +={Diebold Election Systems;electronic voting machines (case study);networked public sphere:Diebold Election Systems case study;policy:Diebold Election Systems case study;public sphere:Diebold Election Systems case study;voting, electronic} + +The Diebold case was not an aberration, but merely a particularly rich case study of a much broader phenomenon, most extensively described in Dan Gilmore's We the Media. The basic production modalities that typify the networked information economy are now being applied to the problem of producing politically relevant information. In 2005, the most visible example of application of the networked information economy--both in its peer-production dimension and more generally by combining a wide range of nonproprietary production models--to the watchdog function of the media is the political blogosphere. The founding myth of the blogosphere's ,{[pg 263]}, journalistic potency was built on the back of then Senate majority leader Trent Lott. In 2002, Lott had the indiscretion of saying, at the onehundredth-birthday party of Republican Senator Strom Thurmond, that if Thurmond had won his Dixiecrat presidential campaign, "we wouldn't have had all these problems over all these years." Thurmond had run on a segregationist campaign, splitting from the Democratic Party in opposition to Harry Truman's early civil rights efforts, as the post?World War II winds began blowing toward the eventual demise of formal, legal racial segregation in the United States. Few positions are taken to be more self-evident in the national public morality of early twenty-first-century America than that formal, state-imposed, racial discrimination is an abomination. And yet, the first few days after the birthday party at which Lott made his statement saw almost no reporting on the statement. ABC News and the Washington Post made small mention of it, but most media outlets reported merely on a congenial salute and farewell celebration of the Senate's oldest and longestserving member. Things were different in the blogosphere. At first liberal blogs, and within three days conservative bloggers as well, began to excavate past racist statements by Lott, and to beat the drums calling for his censure or removal as Senate leader. Within about a week, the story surfaced in the mainstream media, became a major embarrassment, and led to Lott's resignation as Senate majority leader about a week later. A careful case study of this event leaves it unclear why the mainstream media initially ignored the story.~{ Harvard Kennedy School of Government, Case Program: " `Big Media' Meets `Bloggers': Coverage of Trent Lott's Remarks at Strom Thurmond's Birthday Party," http:// www.ksg.harvard.edu/presspol/Research_Publications/Case_Studies/1731_0.pdf.}~ It may have been that the largely social event drew the wrong sort of reporters. It may have been that reporters and editors who depend on major Washington, D.C., players were reluctant to challenge Lott. Perhaps they thought it rude to emphasize this indiscretion, or too upsetting to us all to think of just how close to the surface thoughts that we deem abominable can lurk. There is little disagreement that the day after the party, the story was picked up and discussed by Marshall on TalkingPoints, as well as by another liberal blogger, Atrios, who apparently got it from a post on Slate's "Chatterbox," which picked it up from ABC News's own The Note, a news summary made available on the television network's Web site. While the mass media largely ignored the story, and the two or three mainstream reporters who tried to write about it were getting little traction, bloggers were collecting more stories about prior instances where Lott's actions tended to suggest support for racist causes. Marshall, for example, found that Lott had filed a 1981 amicus curiae brief in support of Bob Jones University's effort to retain its tax-exempt status. The U.S. government had rescinded ,{[pg 264]}, that status because the university practiced racial discrimination--such as prohibiting interracial dating. By Monday of the following week, four days after the remarks, conservative bloggers like Glenn Reynolds on Instapundit, Andrew Sullivan, and others were calling for Lott's resignation. It is possible that, absent the blogosphere, the story would still have flared up. There were two or so mainstream reporters still looking into the story. Jesse Jackson had come out within four days of the comment and said Lott should resign as majority leader. Eventually, when the mass media did enter the fray, its coverage clearly dominated the public agenda and its reporters uncovered materials that helped speed Lott's exit. However, given the short news cycle, the lack of initial interest by the media, and the large time lag between the event itself and when the media actually took the subject up, it seems likely that without the intervention of the blogosphere, the story would have died. What happened instead is that the cluster of political blogs--starting on the Left but then moving across the Left-Right divide--took up the subject, investigated, wrote opinions, collected links and public interest, and eventually captured enough attention to make the comments a matter of public importance. Free from the need to appear neutral and not to offend readers, and free from the need to keep close working relationships with news subjects, bloggers were able to identify something that grated on their sensibilities, talk about it, dig deeper, and eventually generate a substantial intervention into the public sphere. That intervention still had to pass through the mass media, for we still live in a communications environment heavily based on those media. However, the new source of insight, debate, and eventual condensation of effective public opinion came from within the networked information environment. +={Gilmore, Dan;Atrios (blogger Duncan Black);Lott, Trent;Marshall, Josh;Thurmond, Strom;Jackson, Jesse;Reynolds, Glenn;blogs:watchdog functionality} + +The point is not to respond to the argument with a litany of anecdotes. The point is that the argument about the commercial media's role as watchdog turns out to be a familiar argument--it is the same argument that was made about software and supercomputers, encyclopedias and immersive entertainment scripts. The answer, too, is by now familiar. Just as the World Wide Web can offer a platform for the emergence of an enormous and effective almanac, just as free software can produce excellent software and peer production can produce a good encyclopedia, so too can peer production produce the public watchdog function. In doing so, clearly the unorganized collection of Internet users lacks some of the basic tools of the mass media: dedicated full-time reporters; contacts with politicians who need media to survive, and therefore cannot always afford to stonewall questions; or ,{[pg 265]}, public visibility and credibility to back their assertions. However, networkbased peer production also avoids the inherent conflicts between investigative reporting and the bottom line--its cost, its risk of litigation, its risk of withdrawal of advertising from alienated corporate subjects, and its risk of alienating readers. Building on the wide variation and diversity of knowledge, time, availability, insight, and experience, as well as the vast communications and information resources on hand for almost anyone in advanced economies, we are seeing that the watchdog function too is being peer produced in the networked information economy. + +Note that while my focus in this chapter has been mostly the organization of public discourse, both the Sinclair and the Diebold case studies also identify characteristics of distributed political action. We see collective action emerging from the convergence of independent individual actions, with no hierarchical control like that of a political party or an organized campaign. There may be some coordination and condensation points--like BoycottSBG.com or blackboxvoting.org. Like other integration platforms in peer-production systems, these condensation points provide a critical function. They do not, however, control the process. One manifestation of distributed coordination for political action is something Howard Rheingold has called "smart mobs"--large collections of individuals who are able to coordinate real-world action through widely distributed information and communications technology. He tells of the "People Power II" revolution in Manila in 2001, where demonstrations to oust then president Estrada were coordinated spontaneously through extensive text messaging.~{ Howard Rheingold, Smart Mobs, The Next Social Revolution (Cambridge, MA: Perseus Publishing, 2002). }~ Few images in the early twentyfirst century can convey this phenomenon more vividly than the demonstrations around the world on February 15, 2003. Between six and ten million protesters were reported to have gone to the streets of major cities in about sixty countries in opposition to the American-led invasion of Iraq. There had been no major media campaign leading up to the demonstrations-- though there was much media attention to them later. There had been no organizing committee. Instead, there was a network of roughly concordant actions, none controlling the other, all loosely discussing what ought to be done and when. MoveOn.org in the United States provides an example of a coordination platform for a network of politically mobilized activities. It builds on e-mail and Web-based media to communicate opportunities for political action to those likely to be willing and able to take it. Radically distributed, network-based solutions to the problems of political mobilization rely on the same characteristics as networked information production ,{[pg 266]}, more generally: extensive communications leading to concordant and cooperative patterns of behavior without the introduction of hierarchy or the interposition of payment. +={Rheingold, Howard} + +2~ USING NETWORKED COMMUNICATION TO WORK AROUND AUTHORITARIAN CONTROL +={authoritarian control:working around+7;blocked access:authoritarian control+7;communication:authoritarian control, working around+7;government:authoritarian control+7|working around authorities+7;Internet:authoritarian control over+7;monopoly:authoritarian control+7;networked public sphere:authoritarian control, working around+7;policy:authoritarian control+7;political freedom, public sphere and:authoritarian control, working around+7;public sphere:authoritarian control, working around+7} + +The Internet and the networked public sphere offer a different set of potential benefits, and suffer a different set of threats, as a platform for liberation in authoritarian countries. State-controlled mass-media models are highly conducive to authoritarian control. Because they usually rely on a small number of technical and organizational points of control, mass media offer a relatively easy target for capture and control by governments. Successful control of such universally visible media then becomes an important tool of information manipulation, which, in turn, eases the problem of controlling the population. Not surprisingly, capture of the national television and radio stations is invariably an early target of coups and revolutions. The highly distributed networked architecture of the Internet makes it harder to control communications in this way. + +The case of Radio B92 in Yugoslavia offers an example. B92 was founded in 1989, as an independent radio station. Over the course of the 1990s, it developed a significant independent newsroom broadcast over the station itself, and syndicated through thirty affiliated independent stations. B92 was banned twice after the NATO bombing of Belgrade, in an effort by the Milosevic regime to control information about the war. In each case, however, the station continued to produce programming, and distributed it over the Internet from a server based in Amsterdam. The point is a simple one. Shutting down a broadcast station is simple. There is one transmitter with one antenna, and police can find and hold it. It is much harder to shut down all connections from all reporters to a server and from the server back into the country wherever a computer exists. +={B92 radio;Radio B92} + +This is not to say that the Internet will of necessity in the long term lead all authoritarian regimes to collapse. One option open to such regimes is simply to resist Internet use. In 2003, Burma, or Myanmar, had 28,000 Internet users out of a population of more than 42 million, or one in fifteen hundred, as compared, for example, to 6 million out of 65 million in neighboring Thailand, or roughly one in eleven. Most countries are not, however, willing to forgo the benefits of connectivity to maintain their control. Iran's ,{[pg 267]}, population of 69 million includes 4.3 million Internet users, while China has about 80 million users, second only to the United States in absolute terms, out of a population of 1.3 billion. That is, both China and Iran have a density of Internet users of about one in sixteen.~{ Data taken from CIA World Fact Book (Washington, DC: Central Intelligence Agency, 2004). }~ Burma's negligible level of Internet availability is a compound effect of low gross domestic product (GDP) per capita and government policies. Some countries with similar GDP levels still have levels of Internet users in the population that are two orders of magnitude higher: Cameroon (1 Internet user for every 27 residents), Moldova (1 in 30), and Mongolia (1 in 55). Even very large poor countries have several times more users per population than Myanmar: like Pakistan (1 in 100), Mauritania (1 in 300), and Bangladesh (1 in 580). Lawrence Solum and Minn Chung outline how Myanmar achieves its high degree of control and low degree of use.~{ Lawrence Solum and Minn Chung, "The Layers Principle: Internet Architecture and the Law" (working paper no. 55, University of San Diego School of Law, Public Law and Legal Theory, June 2003). }~ Myanmar has only one Internet service provider (ISP), owned by the government. The government must authorize anyone who wants to use the Internet or create a Web page within the country. Some of the licensees, like foreign businesses, are apparently permitted and enabled only to send e-mail, while using the Web is limited to security officials who monitor it. With this level of draconian regulation, Myanmar can avoid the liberating effects of the Internet altogether, at the cost of losing all its economic benefits. Few regimes are willing to pay that price. +={Solum, Lawrence+1;Chung, Minn+1} + +Introducing Internet communications into a society does not, however, immediately and automatically mean that an open, liberal public sphere emerges. The Internet is technically harder to control than mass media. It increases the cost and decreases the efficacy of information control. However, a regime willing and able to spend enough money and engineering power, and to limit its population's access to the Internet sufficiently, can have substantial success in controlling the flow of information into and out of its country. Solum and Chung describe in detail one of the most extensive and successful of these efforts, the one that has been conducted by China-- home to the second-largest population of Internet users in the world, whose policies controlled use of the Internet by two out of every fifteen Internet users in the world in 2003. In China, the government holds a monopoly over all Internet connections going into and out of the country. It either provides or licenses the four national backbones that carry traffic throughout China and connect it to the global network. ISPs that hang off these backbones are licensed, and must provide information about the location and workings of their facilities, as well as comply with a code of conduct. Individual ,{[pg 268]}, users must register and provide information about their machines, and the many Internet cafes are required to install filtering software that will filter out subversive sites. There have been crackdowns on Internet cafes to enforce these requirements. This set of regulations has replicated one aspect of the mass-medium model for the Internet--it has created a potential point of concentration or centralization of information flow that would make it easier to control Internet use. The highly distributed production capabilities of the networked information economy, however, as opposed merely to the distributed carriage capability of the Internet, mean that more must be done at this bottleneck to squelch the flow of information and opinion than would have to be done with mass media. That "more" in China has consisted of an effort to employ automatic filters--some at the level of the cybercafe or the local ISP, some at the level of the national backbone networks. The variability of these loci and their effects is reflected in partial efficacy and variable performance for these mechanisms. The most extensive study of the efficacy of these strategies for controlling information flows over the Internet to China was conducted by Jonathan Zittrain and Ben Edelman. From servers within China, they sampled about two hundred thousand Web sites and found that about fifty thousand were unavailable at least once, and close to nineteen thousand were unavailable on two distinct occasions. The blocking patterns seemed to follow mass-media logic--BBC News was consistently unavailable, as CNN and other major news sites often were; the U.S. court system official site was unavailable. However, Web sites that provided similar information--like those that offered access to all court cases but were outside the official system--were available. The core Web sites of human rights organizations or of Taiwan and Tibet-related organizations were blocked, and about sixty of the top one hundred results for "Tibet" on Google were blocked. What is also apparent from their study, however, and confirmed by Amnesty International's reports on Internet censorship in China, is that while censorship is significant, it is only partially effective.~{ Amnesty International, People's Republic of China, State Control of the Internet in China (2002). }~ The Amnesty report noted that Chinese users were able to use a variety of techniques to avoid the filtering, such as the use of proxy servers, but even Zittrain and Edelman, apparently testing for filtering as experienced by unsophisticated or compliant Internet users in China, could access many sites that would, on their face, seem potentially destabilizing. +={Edelman, Ben;Zittrain, Jonathan;censorship+2;centralization of communication:authoritarian filtering+1} + +This level of censorship may indeed be effective enough for a government negotiating economic and trade expansion with political stability and control. It suggests, however, limits of the ability of even a highly dedicated ,{[pg 269]}, government to control the capacity of Internet communications to route around censorship and to make it much easier for determined users to find information they care about, and to disseminate their own information to others. Iran's experience, with a similar level of Internet penetration, emphasizes the difficulty of maintaining control of Internet publication.~{ A synthesis of news-based accounts is Babak Rahimi, "Cyberdissent: The Internet in Revolutionary Iran," Middle East Review of International Affairs 7, no. 3 (2003). }~ Iran's network emerged from 1993 onward from the university system, quite rapidly complemented by commercial ISPs. Because deployment and use of the Internet preceded its regulation by the government, its architecture is less amenable to centralized filtering and control than China's. Internet access through university accounts and cybercafes appears to be substantial, and until the past three or four years, had operated free of the crackdowns and prison terms suffered by opposition print publications and reporters. The conservative branches of the regime seem to have taken a greater interest in suppressing Internet communications since the publication of imprisoned Ayatollah Montazeri's critique of the foundations of the Islamic state on the Web in December 2000. While the original Web site, montazeri.com, seems to have been eliminated, the site persists as montazeri.ws, using a Western Samoan domain name, as do a number of other Iranian publications. There are now dozens of chat rooms, blogs, and Web sites, and e-mail also seems to be playing an increasing role in the education and organization of an opposition. While the conservative branches of the Iranian state have been clamping down on these forms, and some bloggers and Web site operators have found themselves subject to the same mistreatment as journalists, the efficacy of these efforts to shut down opposition seems to be limited and uneven. +={chat rooms+1} + +Media other than static Web sites present substantially deeper problems for regimes like those of China and Iran. Scanning the text of e-mail messages of millions of users who can encrypt their communications with widely available tools creates a much more complex problem. Ephemeral media like chat rooms and writable Web tools allow the content of an Internet communication or Web site to be changed easily and dynamically, so that blocking sites becomes harder, while coordinating moves to new sites to route around blocking becomes easier. At one degree of complexity deeper, the widely distributed architecture of the Net also allows users to build censorship-resistant networks by pooling their own resources. The pioneering example of this approach is Freenet, initially developed in 1999-2000 by Ian Clarke, an Irish programmer fresh out of a degree in computer science and artificial intelligence at Edinburgh University. Now a broader free-software project, Freenet ,{[pg 270]}, is a peer-to-peer application specifically designed to be censorship resistant. Unlike the more famous peer-to-peer network developed at the time--Napster--Freenet was not intended to store music files on the hard drives of users. Instead, it stores bits and pieces of publications, and then uses sophisticated algorithms to deliver the documents to whoever seeks them, in encrypted form. This design trades off easy availability for a series of security measures that prevent even the owners of the hard drives on which the data resides--or government agents that search their computers--from knowing what is on their hard drive or from controlling it. As a practical matter, if someone in a country that prohibits certain content but enables Internet connections wants to publish content--say, a Web site or blog--safely, they can inject it into the Freenet system. The content will be encrypted and divided into little bits and pieces that are stored in many different hard drives of participants in the network. No single computer will have all the information, and shutting down any given computer will not make the information unavailable. It will continue to be accessible to anyone running the Freenet client. Freenet indeed appears to be used in China, although the precise scope is hard to determine, as the network is intended to mask the identity and location of both readers and publishers in this system. The point to focus on is not the specifics of Freenet, but the feasibility of constructing user-based censorship-resistant storage and retrieval systems that would be practically impossible for a national censorship system to identify and block subversive content. +={Clarke, Ian;Freenet} + +To conclude, in authoritarian countries, the introduction of Internet communications makes it harder and more costly for governments to control the public sphere. If these governments are willing to forgo the benefits of Internet connectivity, they can avoid this problem. If they are not, they find themselves with less control over the public sphere. There are, obviously, other means of more direct repression. However, control over the mass media was, throughout most of the twentieth century, a core tool of repressive governments. It allowed them to manipulate what the masses of their populations knew and believed, and thus limited the portion of the population that the government needed to physically repress to a small and often geographically localized group. The efficacy of these techniques of repression is blunted by adoption of the Internet and the emergence of a networked information economy. Low-cost communications, distributed technical and organizational structure, and ubiquitous presence of dynamic authorship ,{[pg 271]}, tools make control over the public sphere difficult, and practically never perfect. + +2~ TOWARD A NETWORKED PUBLIC SPHERE +={future:public sphere+3;networked public sphere:future of+3;political freedom, public sphere and:future of+3;public sphere:future of+3} + +The first generation of statements that the Internet democratizes was correct but imprecise. The Internet does restructure public discourse in ways that give individuals a greater say in their governance than the mass media made possible. The Internet does provide avenues of discourse around the bottlenecks of older media, whether these are held by authoritarian governments or by media owners. But the mechanisms for this change are more complex than those articulated in the past. And these more complex mechanisms respond to the basic critiques that have been raised against the notion that the Internet enhances democracy. + +Part of what has changed with the Internet is technical infrastructure. Network communications do not offer themselves up as easily for single points of control as did the mass media. While it is possible for authoritarian regimes to try to retain bottlenecks in the Internet, the cost is higher and the efficacy lower than in mass-media-dominated systems. While this does not mean that introduction of the Internet will automatically result in global democratization, it does make the work of authoritarian regimes harder. In liberal democracies, the primary effect of the Internet runs through the emergence of the networked information economy. We are seeing the emergence to much greater significance of nonmarket, individual, and cooperative peerproduction efforts to produce universal intake of observations and opinions about the state of the world and what might and ought to be done about it. We are seeing the emergence of filtering, accreditation, and synthesis mechanisms as part of network behavior. These rely on clustering of communities of interest and association and highlighting of certain sites, but offer tremendous redundancy of paths for expression and accreditation. These practices leave no single point of failure for discourse: no single point where observations can be squelched or attention commanded--by fiat or with the application of money. Because of these emerging systems, the networked information economy is solving the information overload and discourse fragmentation concerns without reintroducing the distortions of the mass-media model. Peer production, both long-term and organized, as in the case of Slashdot, and ad hoc and dynamically formed, as in the case of blogging or ,{[pg 272]}, the Sinclair or Diebold cases, is providing some of the most important functionalities of the media. These efforts provide a watchdog, a source of salient observations regarding matters of public concern, and a platform for discussing the alternatives open to a polity. + +In the networked information environment, everyone is free to observe, report, question, and debate, not only in principle, but in actual capability. They can do this, if not through their own widely read blog, then through a cycle of mailing lists, collective Web-based media like Slashdot, comments on blogs, or even merely through e-mails to friends who, in turn, have meaningful visibility in a smallish-scale cluster of sites or lists. We are witnessing a fundamental change in how individuals can interact with their democracy and experience their role as citizens. Ideal citizens need not be seen purely as trying to inform themselves about what others have found, so that they can vote intelligently. They need not be limited to reading the opinions of opinion makers and judging them in private conversations. They are no longer constrained to occupy the role of mere readers, viewers, and listeners. They can be, instead, participants in a conversation. Practices that begin to take advantage of these new capabilities shift the locus of content creation from the few professional journalists trolling society for issues and observations, to the people who make up that society. They begin to free the public agenda setting from dependence on the judgments of managers, whose job it is to assure that the maximum number of readers, viewers, and listeners are sold in the market for eyeballs. The agenda thus can be rooted in the life and experience of individual participants in society--in their observations, experiences, and obsessions. The network allows all citizens to change their relationship to the public sphere. They no longer need be consumers and passive spectators. They can become creators and primary subjects. It is in this sense that the Internet democratizes. ,{[pg 273]}, + +1~8 Chapter 8 - Cultural Freedom: A Culture Both Plastic and Critical +={culture+51} + +poem{ + +Gone with the Wind + +There was a land of Cavaliers and Cotton Fields called the Old South. +Here in this pretty world, Gallantry took its last bow. Here was the +last ever to be seen of Knights and their Ladies Fair, of Master and +of Slave. Look for it only in books, for it is no more than a dream +remembered, a Civilization gone with the wind. + +--MGM (1939) film adaptation of Margaret Mitchell's novel (1936) + +}poem + +poem{ + +Strange Fruit + +Southern trees bear strange fruit, +Blood on the leaves and blood at the root, +Black bodies swinging in the southern breeze, +Strange fruit hanging from the poplar trees. + +Pastoral scene of the gallant south, +The bulging eyes and the twisted mouth, +Scent of magnolias, sweet and fresh, +Then the sudden smell of burning flesh. + +Here is the fruit for the crows to pluck, +For the rain to gather, for the wind to suck, +For the sun to rot, for the trees to drop, +Here is a strange and bitter crop. + +--Billie Holiday (1939) + from lyrics by Abel Meeropol (1937) + +}poem +={Holiday, Billie} + +% issue with poem, index tag is placed at end not beginning + +% ,{[pg 274]}, + +In 1939, Gone with the Wind reaped seven Oscars, while Billie Holiday's song reached number 16 on the charts, even though Columbia Records refused to release it: Holiday had to record it with a small company that was run out of a storefront in midtown Manhattan. On the eve of the second reconstruction era, which was to overhaul the legal framework of race relations over the two decades beginning with the desegregation of the armed forces in the late 1940s and culminating with the civil rights acts passed between 1964-1968, the two sides of the debate over desegregation and the legacy of slavery were minting new icons through which to express their most basic beliefs about the South and its peculiar institutions. As the following three decades unfolded and the South was gradually forced to change its ways, the cultural domain continued to work out the meaning of race relations in the United States and the history of slavery. The actual slogging of regulation of discrimination, implementation of desegregation and later affirmative action, and the more local politics of hiring and firing were punctuated throughout this period by salient iconic retellings of the stories of race relations in the United States, from Guess Who's Coming to Dinner? to Roots. The point of this chapter, however, is not to discuss race relations, but to understand culture and cultural production in terms of political theory. Gone with the Wind and Strange Fruit or Guess Who's Coming to Dinner? offer us intuitively accessible instances of a much broader and more basic characteristic of human understanding and social relations. Culture, shared meaning, and symbols are how we construct our views of life across a wide range of domains--personal, political, and social. How culture is produced is therefore an essential ingredient in structuring how freedom and justice are perceived, conceived, and pursued. In the twentieth century, Hollywood and the recording industry came to play a very large role in this domain. The networked information economy now seems poised to attenuate that role in favor of a more participatory and transparent cultural production system. + +Cultural freedom occupies a position that relates to both political freedom and individual autonomy, but is synonymous with neither. The root of its importance is that none of us exist outside of culture. As individuals and as political actors, we understand the world we occupy, evaluate it, and act in it from within a set of understandings and frames of meaning and reference that we share with others. What institutions and decisions are considered "legitimate" and worthy of compliance or participation; what courses of ,{[pg 275]}, action are attractive; what forms of interaction with others are considered appropriate--these are all understandings negotiated from within a set of shared frames of meaning. How those frames of meaning are shaped and by whom become central components of the structure of freedom for those individuals and societies that inhabit it and are inhabited by it. They define the public sphere in a much broader sense than we considered in the prior chapters. + +The networked information economy makes it possible to reshape both the "who" and the "how" of cultural production relative to cultural production in the twentieth century. It adds to the centralized, market-oriented production system a new framework of radically decentralized individual and cooperative nonmarket production. It thereby affects the ability of individuals and groups to participate in the production of the cultural tools and frameworks of human understanding and discourse. It affects the way we, as individuals and members of social and political clusters, interact with culture, and through it with each other. It makes culture more transparent to its inhabitants. It makes the process of cultural production more participatory, in the sense that more of those who live within a culture can actively participate in its creation. We are seeing the possibility of an emergence of a new popular culture, produced on the folk-culture model and inhabited actively, rather than passively consumed by the masses. Through these twin characteristics--transparency and participation--the networked information economy also creates greater space for critical evaluation of cultural materials and tools. The practice of producing culture makes us all more sophisticated readers, viewers, and listeners, as well as more engaged makers. + +Throughout the twentieth century, the making of widely shared images and symbols was a concentrated practice that went through the filters of Hollywood and the recording industry. The radically declining costs of manipulating video and still images, audio, and text have, however, made culturally embedded criticism and broad participation in the making of meaning much more feasible than in the past. Anyone with a personal computer can cut and mix files, make their own files, and publish them to a global audience. This is not to say that cultural bricolage, playfulness, and criticism did not exist before. One can go to the avant-garde movement, but equally well to African-Brazilian culture or to Our Lady of Guadalupe to find them. Even with regard to television, that most passive of electronic media, John Fiske argued under the rubric of "semiotic democracy" that viewers engage ,{[pg 276]}, in creative play and meaning making around the TV shows they watch. However, the technical characteristics of digital information technology, the economics of networked information production, and the social practices of networked discourse qualitatively change the role individuals can play in cultural production. +={Fiske, John} + +The practical capacity individuals and noncommercial actors have to use and manipulate cultural artifacts today, playfully or critically, far outstrips anything possible in television, film, or recorded music, as these were organized throughout the twentieth century. The diversity of cultural moves and statements that results from these new opportunities for creativity vastly increases the range of cultural elements accessible to any individual. Our ability, therefore, to navigate the cultural environment and make it our own, both through creation and through active selection and attention, has increased to the point of making a qualitative difference. In the academic law literature, Niva Elkin Koren wrote early about the potential democratization of "meaning making processes," William Fisher about "semiotic democracy," and Jack Balkin about a "democratic culture." Lessig has explored the generative capacity of the freedom to create culture, its contribution to creativity itself. These efforts revolve around the idea that there is something normatively attractive, from the perspective of "democracy" as a liberal value, about the fact that anyone, using widely available equipment, can take from the existing cultural universe more or less whatever they want, cut it, paste it, mix it, and make it their own--equally well expressing their adoration as their disgust, their embrace of certain images as their rejection of them. +={Balkin, Jack;Fisher, William (Terry);Lessig, Lawrence (Larry)} + +Building on this work, this chapter seeks to do three things: First, I claim that the modalities of cultural production and exchange are a proper subject for normative evaluation within a broad range of liberal political theory. Culture is a social-psychological-cognitive fact of human existence. Ignoring it, as rights-based and utilitarian versions of liberalism tend to do, disables political theory from commenting on central characteristics of a society and its institutional frameworks. Analyzing the attractiveness of any given political institutional system without considering how it affects cultural production, and through it the production of the basic frames of meaning through which individual and collective self-determination functions, leaves a large hole in our analysis. Liberal political theory needs a theory of culture and agency that is viscous enough to matter normatively, but loose enough to give its core foci--the individual and the political system--room to be effective ,{[pg 277]}, independently, not as a mere expression or extension of culture. Second, I argue that cultural production in the form of the networked information economy offers individuals a greater participatory role in making the culture they occupy, and makes this culture more transparent to its inhabitants. This descriptive part occupies much of the chapter. Third, I suggest the relatively straightforward conclusion of the prior two observations. From the perspective of liberal political theory, the kind of open, participatory, transparent folk culture that is emerging in the networked environment is normatively more attractive than was the industrial cultural production system typified by Hollywood and the recording industry. + +A nine-year-old girl searching Google for Barbie will quite quickly find links to AdiosBarbie.com, to the Barbie Liberation Organization (BLO), and to other, similarly critical sites interspersed among those dedicated to selling and playing with the doll. The contested nature of the doll becomes publicly and everywhere apparent, liberated from the confines of feminist-criticism symposia and undergraduate courses. This simple Web search represents both of the core contributions of the networked information economy. First, from the perspective of the searching girl, it represents a new transparency of cultural symbols. Second, from the perspective of the participants in AdiosBarbie or the BLO, the girl's use of their site completes their own quest to participate in making the cultural meaning of Barbie. The networked information environment provides an outlet for contrary expression and a medium for shaking what we accept as cultural baseline assumptions. Its radically decentralized production modes provide greater freedom to participate effectively in defining the cultural symbols of our day. These characteristics make the networked environment attractive from the perspectives of both personal freedom of expression and an engaged and self-aware political discourse. +={Barbie (doll), culture of} + +We cannot, however, take for granted that the technological capacity to participate in the cultural conversation, to mix and make our own, will translate into the freedom to do so. The practices of cultural and countercultural creation are at the very core of the battle over the institutional ecology of the digital environment. The tension is perhaps not new or unique to the Internet, but its salience is now greater. The makers of the 1970s comic strip Air Pirates already found their comics confiscated when they portrayed Mickey and Minnie and Donald and Daisy in various compromising countercultural postures. Now, the ever-increasing scope and expanse ,{[pg 278]}, of copyright law and associated regulatory mechanisms, on the one hand, and of individual and collective nonmarket creativity, on the other hand, have heightened the conflict between cultural freedom and the regulatory framework on which the industrial cultural production system depends. As Lessig, Jessica Litman, and Siva Vaidhyanathan have each portrayed elegantly and in detail, the copyright industries have on many dimensions persuaded both Congress and courts that individual, nonmarket creativity using the cultural outputs of the industrial information economy is to be prohibited. As we stand today, freedom to play with the cultural environment is nonetheless preserved in the teeth of the legal constraints, because of the high costs of enforcement, on the one hand, and the ubiquity and low cost of the means to engage in creative cultural bricolage, on the other hand. These social, institutional, and technical facts still leave us with quite a bit of unauthorized creative expression. These facts, however, are contingent and fragile. Chapter 11 outlines in some detail the long trend toward the creation of ever-stronger legal regulation of cultural production, and in particular, the enclosure movement that began in the 1970s and gained steam in the mid-1990s. A series of seemingly discrete regulatory moves threatens the emerging networked folk culture. Ranging from judicial interpretations of copyright law to efforts to regulate the hardware and software of the networked environment, we are seeing a series of efforts to restrict nonmarket use of twentieth-century cultural materials in order to preserve the business models of Hollywood and the recording industry. These regulatory efforts threaten the freedom to participate in twenty-first-century cultural production, because current creation requires taking and mixing the twentieth-century cultural materials that make up who we are as culturally embedded beings. Here, however, I focus on explaining how cultural participation maps onto the project of liberal political theory, and why the emerging cultural practices should be seen as attractive within that normative framework. I leave development of the policy implications to part III. +={Lessig, Lawrence (Larry);Litman, Jessica;Vaidhyanathan, Silva;copyright issues;proprietary rights:cultural environment and} + +2~ CULTURAL FREEDOM IN LIBERAL POLITICAL THEORY +={liberal political theory:cultural freedom+12} + +Utilitarian and rights-based liberal political theories have an awkward relationship to culture. Both major strains of liberal theory make a certain set of assumptions about the autonomous individuals with which they are concerned. Individuals are assumed to be rational and knowledgeable, at least ,{[pg 279]}, about what is good for them. They are conceived of as possessing a capacity for reason and a set of preferences prior to engagement with others. Political theory then proceeds to concern itself with political structures that respect the autonomy of individuals with such characteristics. In the political domain, this conception of the individual is easiest to see in pluralist theories, which require institutions for collective decision making that clear what are treated as already-formed preferences of individuals or voluntary groupings. + +Culture represents a mysterious category for these types of liberal political theories. It is difficult to specify how it functions in terms readily amenable to a conception of individuals whose rationality and preferences for their own good are treated as though they preexist and are independent of society. A concept of culture requires some commonly held meaning among these individuals. Even the simplest intuitive conception of what culture might mean would treat this common frame of meaning as the result of social processes that preexist any individual, and partially structure what it is that individuals bring to the table as they negotiate their lives together, in society or in a polity. Inhabiting a culture is a precondition to any interpretation of what is at stake in any communicative exchange among individuals. A partly subconscious, lifelong dynamic social process of becoming and changing as a cultural being is difficult to fold into a collective decision-making model that focuses on designing a discursive platform for individuated discrete participants who are the bearers of political will. It is easier to model respect for an individual's will when one adopts a view of that will as independent, stable, and purely internally generated. It is harder to do so when one conceives of that individual will as already in some unspecified degree rooted in exchange with others about what an individual is to value and prefer. + +Culture has, of course, been incorporated into political theory as a central part of the critique of liberalism. The politics of culture have been a staple of critical theory since Marx first wrote that "Religion . . . is the opium of the people" and that "to call on them to give up their illusions about their condition is to call on them to give up a condition that requires illusions."~{ Karl Marx, "Introduction to a Contribution to the Critique of Hegel's Philosophy of Right," Deutsch-Franzosicher Jahrbucher (1844). }~ The twentieth century saw a wide array of critique, from cultural Marxism to poststructuralism and postmodernism. However, much of mainstream liberal political theory has chosen to ignore, rather than respond and adapt to, these critiques. In Political Liberalism, for example, Rawls acknowledges "the fact" of reasonable pluralism--of groups that persistently and reasonably hold competing comprehensive doctrines--and aims for political pluralism as a mode of managing the irreconcilable differences. This leaves the formation ,{[pg 280]}, of the comprehensive doctrine and the systems of belief within which it is rendered "reasonable" a black box to liberal theory. This may be an adequate strategy for analyzing the structure of formal political institutions at the broadest level of abstraction. However, it disables liberal political theory from dealing with more fine-grained questions of policy that act within the black box. +={Marx, Karl;Rawls, John;culture:freedom of+9;economics in liberal political theory:cultural freedom+9;freedom:cultural+9} + +As a practical matter, treating culture as a black box disables a political theory as a mechanism for diagnosing the actual conditions of life in a society in terms of its own political values. It does so in precisely the same way that a formal conception of autonomy disables those who hold it from diagnosing the conditions of autonomy in practical life. Imagine for a moment that we had received a revelation that a crude version of Antonio Gramsci's hegemony theory was perfectly correct as a matter of descriptive sociology. Ruling classes do, in fact, consciously and successfully manipulate the culture in order to make the oppressed classes compliant. It would be difficult, then, to continue to justify holding a position about political institutions, or autonomy, that treated the question of how culture, generally, or even the narrow subset of reasonably held comprehensive doctrines like religion, are made, as a black box. It would be difficult to defend respect for autonomous choices as respect for an individual's will, if an objective observer could point to a social process, external to the individual and acting upon him or her, as the cause of the individual holding that will. It would be difficult to focus one's political design imperatives on public processes that allow people to express their beliefs and preferences, argue about them, and ultimately vote on them, if it is descriptively correct that those beliefs and preferences are themselves the product of manipulation of some groups by others. +={Gramsci, Antonio+1;autonomy:culture and+2;individual autonomy:culture and+2} + +The point is not, of course, that Gramsci was descriptively right or that any of the broad range of critical theories of culture is correct as a descriptive matter. It is that liberal theories that ignore culture are rendered incapable of answering some questions that arise in the real world and have real implications for individuals and polities. There is a range of sociological, psychological, or linguistic descriptions that could characterize the culture of a society as more or less in accord with the concern of liberalism with individual and collective self-determination. Some such descriptive theory of culture can provide us with enough purchase on the role of culture to diagnose the attractiveness of a cultural production system from a politicaltheory perspective. It does not require that liberal theory abandon individuals ,{[pg 281]}, as the bearers of the claims of political morality. It does not require that liberal political theory refocus on culture as opposed to formal political institutions. It does require, however, that liberal theory at least be able to diagnose different conditions in the practical cultural life of a society as more or less attractive from the perspective of liberal political theory. + +The efforts of deliberative liberal theories to account for culture offer the most obvious source of such an insight. These political theories have worked to develop a conception of culture and its relationship to liberalism precisely because at a minimum, they require mutual intelligibility across individuals, which cannot adequately be explained without some conception of culture. In Jurgen Habermas's work, culture plays the role of a basis for mutual intelligibility. As the basis for "interpersonal intelligibility," we see culture playing such a role in the work of Bruce Ackerman, who speaks of acculturation as the necessary condition to liberal dialogue. "Cultural coherence" is something he sees children requiring as a precondition to becoming liberal citizens: it allows them to "Talk" and defend their claims in terms without which there can be no liberal conversation.~{ Bruce A. Ackerman, Social Justice and the Liberal State (New Haven, CT, and London: Yale University Press, 1980), 333-335, 141-146. }~ Michael Walzer argues that, "in matters of morality, argument is simply the appeal to common meanings."~{ Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), 29. }~ Will Kymlicka claims that for individual autonomy, "freedom involves making choices amongst various options, and our societal culture not only provides these options, but makes them meaningful to us." A societal culture, in turn, is a "shared vocabulary of tradition and convention" that is "embodied in social life[,] institutionally embodied--in schools, media, economy, government, etc."~{ Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 76, 83. }~ Common meanings in all these frameworks must mean more than simple comprehension of the words of another. It provides a common baseline, which is not itself at that moment the subject of conversation or inquiry, but forms the background on which conversation and inquiry take place. Habermas's definition of lifeworld as "background knowledge," for example, is a crisp rendering of culture in this role: +={Habermas, Jurgen+1;Ackerman, Bruce;Kymlicka, Will;Walzer, Michael} + +_1 the lifeworld embraces us as an unmediated certainty, out of whose immediate proximity we live and speak. This all-penetrating, yet latent and unnoticed presence of the background of communicative action can be described as a more intense, yet deficient, form of knowledge and ability. To begin with, we make use of this knowledge involuntarily, without reflectively knowing that we possess it at all. What enables background knowledge to acquire absolute certainty in this way, and even augments its epistemic quality from a subjective standpoint, is precisely the property that robs it of a constitutive feature of knowledge: we make use of ,{[pg 282]}, such knowledge without the awareness that it could be false. Insofar as all knowledge is fallible and is known to be such, background knowledge does not represent knowledge at all, in a strict sense. As background knowledge, it lacks the possibility of being challenged, that is, of being raised to the level of criticizable validity claims. One can do this only by converting it from a resource into a topic of discussion, at which point--just when it is thematized--it no longer functions as a lifeworld background but rather disintegrates in its background modality.~{ Jurgen Habermas, Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1998), 22-23. }~ + +In other words, our understanding of meaning--how we are, how others are, what ought to be--are in some significant portion unexamined assumptions that we share with others, and to which we appeal as we engage in communication with them. This does not mean that culture is a version of false consciousness. It does not mean that background knowledge cannot be examined rationally or otherwise undermines the very possibility or coherence of a liberal individual or polity. It does mean, however, that at any given time, in any given context, there will be some set of historically contingent beliefs, attitudes, and social and psychological conditions that will in the normal course remain unexamined, and form the unexamined foundation of conversation. Culture is revisable through critical examination, at which point it ceases to be "common knowledge" and becomes a contested assumption. Nevertheless, some body of unexamined common knowledge is necessary for us to have an intelligible conversation that does not constantly go around in circles, challenging the assumptions on whichever conversational move is made. + +Culture, in this framework, is not destiny. It does not predetermine who we are, or what we can become or do, nor is it a fixed artifact. It is the product of a dynamic process of engagement among those who make up a culture. It is a frame of meaning from within which we must inevitably function and speak to each other, and whose terms, constraints, and affordances we always negotiate. There is no point outside of culture from which to do otherwise. An old Yiddish folktale tells of a naïve rabbi who, for safekeeping, put a ten-ruble note inside his copy of the Torah, at the page of the commandment, "thou shalt not steal." That same night, a thief stole into the rabbi's home, took the ten-ruble note, and left a five-ruble note in its place, at the page of the commandment, "thou shalt love thy neighbor as thyself." The rabbi and the thief share a common cultural framework (as do we, across the cultural divide), through which their various actions can be understood; indeed, without which their actions would be unintelligible. ,{[pg 283]}, The story offers a theory of culture, power, and freedom that is more congenial to liberal political theory than critical theories, and yet provides a conception of the role of culture in human relations that provides enough friction, or viscosity, to allow meaning making in culture to play a role in the core concerns of liberal political theory. Their actions are part strategic and part communicative--that is to say, to some extent they seek to force an outcome, and to some extent they seek to engage the other in a conversation in order to achieve a commonly accepted outcome. The rabbi places the ten-ruble note in the Bible in order to impress upon the putative thief that he should leave the money where it is. He cannot exert force on the thief by locking the money up in a safe because he does not own one. Instead, he calls upon a shared understanding and a claim of authority within the governed society to persuade the thief. The thief, to the contrary, could have physically taken the ten-ruble note without replacing it, but he does not. He engages the rabbi in the same conversation. In part, he justifies his claim to five rubles. In part, he resists the authority of the rabbi--not by rejecting the culture that renders the rabbi a privileged expert, but by playing the game of Talmudic disputation. There is a price, though, for participating in the conversation. The thief must leave the five-ruble note; he cannot take the whole amount. + +In this story, culture is open to interpretation and manipulation, but not infinitely so. Some moves may be valid within a cultural framework and alter it; others simply will not. The practical force of culture, on the other hand, is not brute force. It cannot force an outcome, but it can exert a real pull on the range of behaviors that people will seriously consider undertaking, both as individuals and as polities. The storyteller relies on the listener's cultural understanding about the limits of argument, or communicative action. The story exploits the open texture of culture, and the listener's shared cultural belief that stealing is an act of force, not a claim of justice; that those who engage in it do not conceive of themselves as engaged in legitimate defensible acts. The rabbi was naïve to begin with, but the thief 's disputation is inconsistent with our sense of the nature of the act of stealing in exactly the same way that the rabbi's was, but inversely. The thief, the rabbi, and the storyteller participate in making, and altering, the meaning of the commandments. + +Culture changes through the actions of individuals in the cultural context. Beliefs, claims, communicative moves that have one meaning before an intervention ,{[pg 284]}, may begin to shift in their meaning as a result of other moves, made by other participants in the same cultural milieu. One need not adopt any given fully fledged meme theory of culture--like Richard Dawkins's, or Balkin's political adaptation of it as a theory of ideology--to accept that culture is created through communication among human beings, that it exerts some force on what they can say to each other and how it will be received, and that the parameters of a culture as a platform for making meaning in interaction among human beings change over time with use. How cultural moves are made, by whom, and with what degree of perfect replication or subtle (and not so subtle) change, become important elements in determining the rate and direction of cultural change. These changes, over time, alter the platform individuals must use to make sense of the world they occupy, and for participants in conversation to be able to make intelligible communications to each other about the world they share and where it can and ought to go. Culture so understood is a social fact about particular sets of human beings in historical context. As a social fact, it constrains and facilitates the development, expression, and questioning of beliefs and positions. Whether and how Darwinism should be taught in public schools, for example, is a live political question in vast regions of the United States, and is played out as a debate over whether evolution is "merely a theory." Whether racial segregation should be practiced in these schools is no longer a viable or even conceivable political agenda. The difference between Darwinism and the undesirability of racial segregation is not that one is scientifically true and the other is not. The difference is that the former is not part of the "common knowledge" of a large section of society, whereas the latter is, in a way that no longer requires proof by detailed sociological and psychological studies of the type cited by the Supreme Court in support of its holding, in /{Brown v. Board of Education}/, that segregation in education was inherently unequal. +={Balkin, Jack;Dawkins, Richard;capabilities of individuals:cultural shift;individual capabilities and action:cultural shift} + +If culture is indeed part of how we form a shared sense of unexamined common knowledge, it plays a significant role in framing the meaning of the state of the world, the availability and desirability of choices, and the organization of discourse. The question of how culture is framed (and through it, meaning and the baseline conversational moves) then becomes germane to a liberal political theory. Between the Scylla of a fixed culture (with hierarchical, concentrated power to control its development and interpretation) and the Charybdis of a perfectly open culture (where nothing ,{[pg 285]}, is fixed and everything is up for grabs, offering no anchor for meaning and mutual intelligibility), there is a wide range of practical social and economic arrangements around the production and use of culture. In evaluating the attractiveness of various arrangements from the perspective of liberal theory, we come to an already familiar trade-off, and an already familiar answer. As in the case of autonomy and political discourse, a greater ability of individuals to participate in the creation of the cultural meaning of the world they occupy is attractive from the perspective of the liberal commitments to individual freedom and democratic participation. As in both areas that we have already considered, a Babel objection appears: Too much freedom to challenge and remake our own cultural environment will lead to a lack of shared meaning. As in those two cases, however, the fears of too active a community of meaning making are likely exaggerated. Loosening the dominant power of Hollywood and television over contemporary culture is likely to represent an incremental improvement, from the perspective of liberal political commitments. It will lead to a greater transparency of culture, and therefore a greater capacity for critical reflection, and it will provide more opportunities for participating in the creation of culture, for interpolating individual glosses on it, and for creating shared variations on common themes. + +2~ THE TRANSPARENCY OF INTERNET CULTURE +={culture:transparency of+12;Internet:transparency of culture+12;networked public sphere:transparency of Internet culture+12;public sphere:transparency of Internet culture+12;transparency of Internet culture+12} + +If you run a search for "Barbie" on three separate search engines--Google, Overture, and Yahoo!--you will get quite different results. Table 8.1 lists these results in the order in which they appear on each search engine. Overture is a search engine that sells placement to the parties who are being searched. Hits on this search engine are therefore ranked based on whoever paid Overture the most in order to be placed highly in response to a query. On this list, none of the top ten results represent anything other than sales-related Barbie sites. Critical sites begin to appear only around the twentyfifth result, presumably after all paying clients have been served. Google, as we already know, uses a radically decentralized mechanism for assigning relevance. It counts how many sites on the Web have linked to a particular site that has the search term in it, and ranks the search results by placing a site with a high number of incoming links above a site with a low number of incoming links. In effect, each Web site publisher "votes" for a site's ,{[pg 286]}, ,{[pg 287]}, relevance by linking to it, and Google aggregates these votes and renders them on their results page as higher ranking. The little girl who searches for Barbie on Google will encounter a culturally contested figure. The same girl, searching on Overture, will encounter a commodity toy. In each case, the underlying efforts of Mattel, the producer of Barbie, have not changed. What is different is that in an environment where relevance is measured in nonmarket action--placing a link to a Web site because you deem it relevant to whatever you are doing with your Web site--as opposed to in dollars, Barbie has become a more transparent cultural object. It is easier for the little girl to see that the doll is not only a toy, not only a symbol of beauty and glamour, but also a symbol of how norms of female beauty in our society can be oppressive to women and girls. The transparency does not force the girl to choose one meaning of Barbie or another. It does, however, render transparent that Barbie can have multiple meanings and that choosing meanings is a matter of political concern for some set of people who coinhabit this culture. Yahoo! occupies something of a middle ground--its algorithm does link to two of the critical sites among the top ten, and within the top twenty, identifies most of the sites that appear on Google's top ten that are not related to sales or promotion. +={Barbie (doll), culture of+4} + +<:pb> + +% table moved after paragraph + +!_ Table 8.1: Results for "Barbie" - Google versus Overture and Yahoo! + +table{~h c3; 33; 33; 33; + +Google +Overture +Yahoo! + +Barbie.com (Mattel's site) +Barbie at Amazon.com +Barbie.com + +AdiosBarbie.com: A Body Image for Every Body (site created by women critical of Barbie's projected body image) +Barbie on Sale at KBToys +Barbie Collector + +Barbie Bazar magazine (Barbie collectible news and Information) +Target.com: Barbies +My Scene.com + +If You Were a Barbie, Which Messed Up Version Would You Be? +Barbie: Best prices and selection (bizrate.com) +EverythingGirl.com + +Visible Barbie Project (macabre images of Barbie sliced as though in a science project) +Barbies, New and Pre-owned at NetDoll +Barbie History (fan-type history, mostly when various dolls were released) + +Barbie: The Image of Us All (1995 undergraduate paper about Barbie's cultural history) +Barbies - compare prices (nextag.com) +Mattel, Inc. + +Audigraph.free.fr (Barbie and Ken sex animation) +Barbie Toys (complete line of Barbie electronics online) +Spatula Jackson's Barbies (picutes of Barbie as various counter-cultural images) + +Suicide bomber Barbie (Barbie with explosives strapped to waist) +Barbie Party supplies +Barbie! (fan site) + +Barbies (Barbie dressed and painted as counter-cultural images) +Barbie and her accessories online +The Distorted Barbie + +}table + +A similar phenomenon repeats itself in the context of explicit efforts to define Barbie--encyclopedias. There are, as of this writing, six generalinterest online encyclopedias that are reasonably accessible on the Internet-- that is to say, can be found with reasonable ease by looking at major search engines, sites that focus on education and parenting, and similar techniques. Five are commercial, and one is a quintessential commons-based peerproduction project-- /{Wikipedia}/. Of the five commercial encyclopedias, only one is available at no charge, the Columbia Encyclopedia, which is packaged in two primary forms--as encyclopedia.com and as part of Bartleby.com.~{ Encyclopedia.com is a part of Highbeam Research, Inc., which combines free and pay research services. Bartleby provides searching and access to many reference and highculture works at no charge, combining it with advertising, a book store, and many links to Amazon.com or to the publishers for purchasing the printed versions of the materials. }~ The other four--Britannica, Microsoft's Encarta, the World Book, and Grolier's Online Encyclopedia--charge various subscription rates that range around fifty to sixty dollars a year. The Columbia Encyclopedia includes no reference to Barbie, the doll. The World Book has no "Barbie" entry, but does include a reference to Barbie as part of a fairly substantial article on "Dolls." The only information that is given is that the doll was introduced in 1959, that she has a large wardrobe, and in a different place, that darkskinned Barbies were introduced in the 1980s. The article concludes with a guide of about three hundred words to good doll-collecting practices. Microsoft's ,{[pg 288]}, Encarta also includes Barbie in the article on "Doll," but provides a brief separate definition as well, which replicates the World Book information in slightly different form: 1959, large wardrobe, and introduction of dark-skinned Barbies. The online photograph available with the definition is of a brown-skinned, black-haired Barbie. Grolier's Online's major generalpurpose encyclopedia, Americana, also has no entry for Barbie, but makes reference to the doll as part of the article on dolls. Barbie is described as a revolutionary new doll, made to resemble a teenage fashion model as part of a trend to realism in dolls. Grolier's Online does, however, include a more specialized American Studies encyclopedia that has an article on Barbie. That article heavily emphasizes the number of dolls sold and their value, provides some description of the chronological history of the doll, and makes opaque references to Barbie's physique and her emphasis on consumption. While the encyclopedia includes bibliographic references to critical works about Barbie, the textual references to cultural critique or problems she raises are very slight and quite oblique. +={Wikipedia project:Barbie doll content+2} + +Only two encyclopedias focus explicitly on Barbie's cultural meaning: Britannica and /{Wikipedia}/. The Britannica entry was written by M. G. Lord, a professional journalist who authored a book entitled Forever Barbie: The Unauthorized Biography of a Real Doll. It is a tightly written piece that underscores the critique of Barbie, both on body dimensions and its relationship to the body image of girls, and excessive consumerism. It also, however, makes clear the fact that Barbie was the first doll to give girls a play image that was not focused on nurturing and family roles, but was an independent, professional adult: playing roles such as airline pilot, astronaut, or presidential candidate. The article also provides brief references to the role of Barbie in a global market economy--its manufacture outside the United States, despite its marketing as an American cultural icon, and its manufacturer's early adoption of direct-to-children marketing. /{Wikipedia}/ provides more or less all the information provided in the Britannica definition, including a reference to Lord's own book, and adds substantially more material from within Barbie lore itself and a detailed time line of the doll's history. It has a strong emphasis on the body image controversy, and emphasizes both the critique that Barbie encourages girls to focus on shallow consumption of fashion accessories, and that she represents an unattainable lifestyle for most girls who play with her. The very first version of the definition, posted January 3, 2003, included only a brief reference to a change in Barbie's waistline as a result of efforts by parents and anorexia groups ,{[pg 289]}, concerned with the doll's impact on girls' nutrition. This remained the only reference to the critique of Barbie until December 15, 2003, when a user who was not logged in introduced a fairly roughly written section that emphasized both the body image concerns and the consumerism concerns with Barbie. During the same day, a number of regular contributors (that is, users with log-in names and their own talk pages) edited the new section and improved its language and flow, but kept the basic concepts intact. Three weeks later, on January 5, 2004, another regular user rewrote the section, reorganized the paragraphs so that the critique of Barbie's emphasis on high consumption was separated from the emphasis on Barbie's body dimensions, and also separated and clarified the qualifying claims that Barbie's independence and professional outfits may have had positive effects on girls' perception of possible life plans. This contributor also introduced a reference to the fact that the term "Barbie" is often used to denote a shallow or silly girl or woman. After that, with a change three weeks later from describing Barbie as available for most of her life only as "white Anglo-Saxon (and probably protestant)" to "white woman of apparently European descent" this part of the definition stabilized. As this description aims to make clear, /{Wikipedia}/ makes the history of the evolution of the article entirely transparent. The software platform allows any reader to look at prior versions of the definition, to compare specific versions, and to read the "talk" pages-- the pages where the participants discuss their definition and their thoughts about it. + +The relative emphasis of Google and /{Wikipedia}/, on the one hand, and Overture, Yahoo!, and the commercial encyclopedias other than Britannica, on the other hand, is emblematic of a basic difference between markets and social conversations with regard to culture. If we focus on the role of culture as "common knowledge" or background knowledge, its relationship to the market--at least for theoretical economists--is exogenous. It can be taken as given and treated as "taste." In more practical business environments, culture is indeed a source of taste and demand, but it is not taken as exogenous. Culture, symbolism, and meaning, as they are tied with marketbased goods, become a major focus of advertising and of demand management. No one who has been exposed to the advertising campaigns of Coca-Cola, Nike, or Apple Computers, as well as practically to any one of a broad range of advertising campaigns over the past few decades, can fail to see that these are not primarily a communication about the material characteristics or qualities of the products or services sold by the advertisers. ,{[pg 290]}, + +They are about meaning. These campaigns try to invest the act of buying their products or services with a cultural meaning that they cultivate, manipulate, and try to generalize in the practices of the society in which they are advertising, precisely in order to shape taste. They offer an opportunity to generate rents, because the consumer has to have this company's shoe rather than that one, because that particular shoe makes the customer this kind of person rather than that kind--cool rather than stuffy, sophisticated rather than common. Neither the theoretical economists nor the marketing executives have any interest in rendering culture transparent or writable. Whether one treats culture as exogenous or as a domain for limiting the elasticity of demand for one's particular product, there is no impetus to make it easier for consumers to see through the cultural symbols, debate their significance, or make them their own. If there is business reason to do anything about culture, it is to try to shape the cultural meaning of an object or practice, in order to shape the demand for it, while keeping the role of culture hidden and assuring control over the careful cultural choreography of the symbols attached to the company. Indeed, in 1995, the U.S. Congress enacted a new kind of trademark law, the Federal Antidilution Act, which for the first time disconnects trademark protection from protecting consumers from confusion by knockoffs. The Antidilution Act of 1995 gives the owner of any famous mark--and only famous marks--protection from any use that dilutes the meaning that the brand owner has attached to its own mark. It can be entirely clear to consumers that a particular use does not come from the owner of the brand, and still, the owner has a right to prevent this use. While there is some constitutional free-speech protection for criticism, there is also a basic change in the understanding of trademark law-- from a consumer protection law intended to assure that consumers can rely on the consistency of goods marked in a certain way, to a property right in controlling the meaning of symbols a company has successfully cultivated so that they are, in fact, famous. This legal change marks a major shift in the understanding of the role of law in assigning control for cultural meaning generated by market actors. +={Antidilutation Act of 1995;branding:trademark dilutation;dilutation of trademarks;logical layer of institutional ecology:trademark dilutation;proprietary rights:trademark dilutation;trademark dilutation;information production, market-based:cultural change, transparency of+4;market-based information producers: cultural change, transparency of+4;nonmarket information producers:cultural change, transparency of+4} + +Unlike market production of culture, meaning making as a social, nonmarket practice has no similar systematic reason to accept meaning as it comes. Certainly, some social relations do. When girls play with dolls, collect them, or exhibit them, they are rarely engaged in reflection on the meaning of the dolls, just as fans of Scarlett O'Hara, of which a brief Internet search suggests there are many, are not usually engaged in critique of Gone with the ,{[pg 291]}, Wind as much as in replication and adoption of its romantic themes. Plainly, however, some conversations we have with each other are about who we are, how we came to be who we are, and whether we view the answers we find to these questions as attractive or not. In other words, some social interactions do have room for examining culture as well as inhabiting it, for considering background knowledge for what it is, rather than taking it as a given input into the shape of demand or using it as a medium for managing meaning and demand. People often engage in conversations with each other precisely to understand themselves in the world, their relationship to others, and what makes them like and unlike those others. One major domain in which this formation of self- and group identity occurs is the adoption or rejection of, and inquiry into, cultural symbols and sources of meaning that will make a group cohere or splinter; that will make people like or unlike each other. + +The distinction I draw here between market-based and nonmarket-based activities is purposefully overstated to clarify the basic structural differences between these two modes of organizing communications and the degree of transparency of culture they foster. As even the very simple story of how Barbie is defined in Internet communications demonstrates, practices are not usually as cleanly divided. Like the role of the elite newspapers in providing political coverage, discussed in chapter 6, some market-based efforts do provide transparency; indeed, their very market rationale pushes them to engage in a systematic effort to provide transparency. Google's strategy from the start has been to assume that what individuals are interested in is a reflection of what other individuals--who are interested in roughly the same area, but spend more time on it, that is, Web page authors--think is worthwhile. The company built its business model around rendering transparent what people and organizations that make their information available freely consider relevant. Occasionally, Google has had to deal with "search engine optimizers," who have advised companies on how to game its search engine to achieve a high ranking. Google has fought these optimizers; sometimes by outright blocking access to traffic that originates with them. In these cases, we see a technical competition between firms--the optimizers--whose interest is in capturing attention based on the interests of those who pay them, and a firm, Google, whose strategic choice is to render the distributed judgments of relevance on the Web more or less faithfully. There, the market incentive actually drives Google's investment affirmatively toward transparency. However, the market decision must be strategic, not tactical, for this ,{[pg 292]}, to be the case. Fear of litigation has, for example, caused Google to bury links that threatened it with liability. The most prominent of these cases occurred when the Church of Scientology threatened to sue Google over presenting links to www.xenu.net, a site dedicated to criticizing scientology. Google initially removed the link. However, its strategic interest was brought to the fore by widespread criticism of its decision on the Internet, and the firm relented. A search for "Scientology" as of this writing reveals a wide range of sites, many critical of scientology, and xenu.net is the second link. A search for "scientology Google" will reveal many stories, not quite flattering either to Google or to the Church of Scientology, as the top links. We see similar diversity among the encyclopedias. Britannica offered as clear a presentation of the controversy over Barbie as /{Wikipedia}/. Britannica has built its reputation and business model on delivery of the knowledge and opinions of those in positions to claim authority in the name of high culture professional competence, and delivering that perspective to those who buy the encyclopedia precisely to gain access to that kind of knowledge base, judgment, and formal credibility. In both cases, the long-term business model of the companies calls for reflecting the views and insights of agents who are not themselves thoroughly within the market--whether they are academics who write articles for Britannica, or the many and diverse Web page owners on the Internet. In both cases, these business models lead to a much more transparent cultural representation than what Hollywood or Madison Avenue produce. Just as not all market-based organizations render culture opaque, not all nonmarket or social-relations-based conversations aim to explore and expose cultural assumptions. Social conversations can indeed be among the most highly deferential to cultural assumptions, and can repress critique more effectively and completely than market-based conversations. Whether in communities of unquestioning religious devotion or those that enforce strict egalitarian political correctness, we commonly see, in societies both traditional and contemporary, significant social pressures against challenging background cultural assumptions within social conversations. We have, for example, always had more cultural experimentation and fermentation in cities, where social ties are looser and communities can exercise less social control over questioning minds and conversation. Ubiquitous Internet communications expand something of the freedom of city parks and streets, but also the freedom of cafes and bars--commercial platforms for social inter? action--so that it is available everywhere. + +The claim I make here, as elsewhere throughout this book, is not that ,{[pg 293]}, nonmarket production will, in fact, generally displace market production, or that such displacement is necessary to achieve the improvement in the degree of participation in cultural production and legibility. My claim is that the emergence of a substantial nonmarket alternative path for cultural conversation increases the degrees of freedom available to individuals and groups to engage in cultural production and exchange, and that doing so increases the transparency of culture to its inhabitants. It is a claim tied to the particular technological moment and its particular locus of occurrence--our networked communications environment. It is based on the fact that it is displacing the particular industrial form of information and cultural production of the twentieth century, with its heavy emphasis on consumption in mass markets. In this context, the emergence of a substantial sector of nonmarket production, and of peer production, or the emergence of individuals acting cooperatively as a major new source of defining widely transmissible statements and conversations about the meaning of the culture we share, makes culture substantially more transparent and available for reflection, and therefore for revision. +={communities:critical culture and self-reflection+1;critical culture and self-reflection+1;culture:criticality of (self-reflection)+1;self-organization:See clusters in network topology self-reflection+1} + +Two other dimensions are made very clear by the /{Wikipedia}/ example. The first is the degree of self-consciousness that is feasible with open, conversation-based definition of culture that is itself rendered more transparent. The second is the degree to which the culture is writable, the degree to which individuals can participate in mixing and matching and making their own emphases, for themselves and for others, on the existing set of symbols. Fisher, for example, has used the term "semiotic democracy" to describe the potential embodied in the emerging openness of Internet culture to participation by users. The term originates from Fiske's Television Culture as a counterpoint to the claim that television was actually a purely one-way medium that only enacted culture on viewers. Instead, Fiske claimed that viewers resist these meanings, put them in their own contexts, use them in various ways, and subvert them to make their own meaning. However, much of this resistance is unstated, some of it unself-conscious. There are the acts of reception and interpretation, or of using images and sentences in different contexts of life than those depicted in the television program; but these acts are local, enacted within small-scale local cultures, and are not the result of a self-conscious conversation among users of the culture about its limits, its meanings, and its subversions. One of the phenomena we are beginning to observe on the Internet is an emerging culture of conversation about culture, which is both self-conscious and informed by linking or quoting from specific ,{[pg 294]}, reference points. The /{Wikipedia}/ development of the definition of Barbie, its history, and the availability of a talk page alongside it for discussion about the definition, are an extreme version of self-conscious discussion about culture. The basic tools enabled by the Internet--cutting, pasting, rendering, annotating, and commenting--make active utilization and conscious discussion of cultural symbols and artifacts easier to create, sustain, and read more generally. +={Fisher, William (Terry);Fiske, John} + +The flexibility with which cultural artifacts--meaning-carrying objects-- can be rendered, preserved, and surrounded by different context and discussion makes it easy for anyone, anywhere, to make a self-conscious statement about culture. They enable what Balkin has called "glomming on"-- taking that which is common cultural representation and reworking it into your own move in a cultural conversation.~{ Jack Balkin, "Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society," New York University Law Review 79 (2004): 1. }~ The low cost of storage, and the ubiquitous possibility of connecting from any connection location to any storage space make any such statement persistent and available to others. The ease of commenting, linking, and writing to other locations of statements, in turn, increases the possibility of response and counterresponse. These conversations can then be found by others, and at least read if not contributed to. In other words, as with other, purposeful peer-produced projects like /{Wikipedia}/, the basic characteristics of the Internet in general and the World Wide Web in particular have made it possible for anyone, anywhere, for any reason to begin to contribute to an accretion of conversation about well-defined cultural objects or about cultural trends and characteristics generally. These conversations can persist across time and exist across distance, and are available for both active participation and passive reading by many people in many places. The result is, as we are already seeing it, the emergence of widely accessible, self-conscious conversation about the meaning of contemporary culture by those who inhabit it. This "writability" is also the second characteristic that the /{Wikipedia}/ definition process makes very clear, and the second major change brought about by the networked information economy in the digital environment. +={Balkin, Jack} + +2~ THE PLASTICITY OF INTERNET CULTURE: THE FUTURE OF HIGH-PRODUCTION-VALUE FOLK CULTURE +={high-production value content+2;Internet:plasticity of culture+2;plasticity of Internet culture+2} + +I have already described the phenomena of blogs, of individually created movies like /{The Jedi Saga}/, and of Second Life, the game platform where ,{[pg 295]}, users have made all the story lines and all the objects, while the commercial provider created the tools and hosts the platform for their collective storytelling. We are seeing the broad emergence of business models that are aimed precisely at providing users with the tools to write, compose, film, and mix existing materials, and to publish, play, render, and distribute what we have made to others, everywhere. Blogger, for example, provides simple tools for online publication of written materials. Apple Computer offers a product called GarageBand, that lets users compose and play their own music. It includes a large library of prerecorded building blocks--different instruments, riffs, loops--and an interface that allows the user to mix, match, record and add their own, and produce their own musical composition and play it. Video-editing utilities, coupled with the easy malleability of digital video, enable people to make films--whether about their own lives or, as in the case of /{The Jedi Saga}/, of fantasies. The emerging phenomenon of Machinima--short movies that are made using game platforms--underscores how digital platforms can also become tools for creation in unintended ways. Creators use the 3-D rendering capabilities of an existing game, but use the game to stage a movie scene or video presentation, which they record as it is played out. This recording is then distributed on the Internet as a standalone short film. While many of these are still crude, the basic possibilities they present as modes of making movies is significant. Needless to say, not everyone is Mozart. Not everyone is even a reasonably talented musician, author, or filmmaker. Much of what can be and is done is not wildly creative, and much of it takes the form of Balkin's "glomming on": That is, users take existing popular culture, or otherwise professionally created culture, and perform it, sometimes with an effort toward fidelity to the professionals, but often with their own twists, making it their own in an immediate and unmediated way. However, just as learning how to read music and play an instrument can make one a better-informed listener, so too a ubiquitous practice of making cultural artifacts of all forms enables individuals in society to be better readers, listeners, and viewers of professionally produced culture, as well as contributors of our own statements into this mix of collective culture. +={Balkin, Jack;commercial culture, production of+1;information production, market-based:mass popular culture+1;market-based information producers:mass popular culture+1;market-based information producers:mass popular culture+1;popular culture, commercial production of+1} + +People have always created their own culture. Popular music did not begin with Elvis. There has always been a folk culture--of music, storytelling, and theater. What happened over the course of the twentieth century in advanced economies, and to a lesser extent but still substantially around the globe, is the displacement of folk culture by commercially produced mass popular ,{[pg 296]}, culture. The role of the individuals and communities vis-a-vis cultural arti` facts changed, from coproducers and replicators to passive consumers. The time frame where elders might tell stories, children might put on a show for the adults, or those gathered might sing songs came to be occupied by background music, from the radio or phonograph, or by television. We came to assume a certain level of "production values"--quality of sound and image, quality of rendering and staging--that are unattainable with our crude means and our relatively untrained voices or use of instruments. Not only time for local popular creation was displaced, therefore, but also a sense of what counted as engaging, delightful articulation of culture. In a now-classic article from 1937, "The Work of Art in the Age of Mechanical Reproduction," Walter Benjamin authored one of the only instances of critical theory that took an optimistic view of the emergence of popular culture in the twentieth century as a potentially liberating turn. Benjamin's core claim was that with mechanical replication of art, the "aura" that used to attach to single works of art is dissipated. Benjamin saw this aura of unique works of art as reinforcing a distance between the masses and the representations of culture, reinforcing the perception of their weakness and distance from truly great things. He saw in mechanical reproducibility the possibility of bringing copies down to earth, to the hands of the masses, and reversing the sense of distance and relative weakness of the mass culture. What Benjamin did not yet see were the ways in which mechanical reproduction would insert a different kind of barrier between many dispersed individuals and the capacity to make culture. The barrier of production costs, production values, and the star system that came along with them, replaced the iconic role of the unique work of art with new, but equally high barriers to participation in making culture. It is precisely those barriers that the capabilities provided by digital media begin to erode. It is becoming feasible for users to cut and paste, "glom on," to existing cultural materials; to implement their intuitions, tastes, and expressions through media that render them with newly acceptable degrees of technical quality, and to distribute them among others, both near and far. As Hollywood begins to use more computer-generated special effects, but more important, whole films--2004 alone saw major releases like Shrek 2, The Incredibles, and Polar Express--and as the quality of widely available image-generation software and hardware improves, the production value gap between individual users or collections of users and the commercial-professional studios will decrease. As this book is completed in early 2005, nothing makes clearer the value of retelling basic stories through ,{[pg 297]}, the prism of contemporary witty criticism of prevailing culture than do Shrek 2 and The Incredibles, and, equally, nothing exposes the limits of purely technical, movie-star-centered quality than the lifelessness of Polar Express. As online games like Second Life provide users with new tools and platforms to tell and retell their own stories, or their own versions of well-trodden paths, as digital multimedia tools do the same for individuals outside of the collaborative storytelling platforms, we can begin to see a reemergence of folk stories and songs as widespread cultural practices. And as network connections become ubiquitous, and search engines and filters improve, we can begin to see this folk culture emerging to play a substantially greater role in the production of our cultural environment. +={Walter, Benjamin} + +2~ A PARTICIPATORY CULTURE: TOWARD POLICY +={control of public sphere: See mass media controlling culture+5;culture:participatory, policies for+5|shaping perceptions of others+5;future:participatory culture+5;information production inputs:propaganda+5;inputs to production:propaganda+5;manipulating perceptions of others:with propaganda+5;participatory culture+5;perceptions of others, shaping:with propaganda+5;policy:participatory culture+5;production inputs:propaganda+5;propaganda:manipulating culture+5;shaping perceptions of others:with propaganda+5} + +Culture is too broad a concept to suggest an all-encompassing theory centered around technology in general or the Internet in particular. My focus is therefore much narrower, along two dimensions. First, I am concerned with thinking about the role of culture to human interactions that can be understood in terms of basic liberal political commitments--that is to say, a concern for the degree of freedom individuals have to form and pursue a life plan, and the degree of participation they can exercise in debating and determining collective action. Second, my claim is focused on the relative attractiveness of the twentieth-century industrial model of cultural production and what appears to be emerging as the networked model in the early twenty-first century, rather than on the relationship of the latter to some theoretically defined ideal culture. +={culture:freedom of+1;economics in liberal political theory:cultural freedom+1;freedom:cultural+1;liberal political theory:cultural freedom+1} + +A liberal political theory cannot wish away the role of culture in structuring human events. We engage in wide ranges of social practices of making and exchanging symbols that are concerned with how our life is and how it might be, with which paths are valuable for us as individuals to pursue and which are not, and with what objectives we as collective communities-- from the local to the global--ought to pursue. This unstructured, ubiquitous conversation is centrally concerned with things that a liberal political system speaks to, but it is not amenable to anything like an institutionalized process that could render its results "legitimate." Culture operates as a set of background assumptions and common knowledge that structure our understanding of the state of the world and the range of possible actions and outcomes open to us individually and collectively. It constrains the range of conversational ,{[pg 298]}, moves open to us to consider what we are doing and how we might act differently. In these regards, it is a source of power in the critical-theory sense--a source that exerts real limits on what we can do and how we can be. As a source of power, it is not a natural force that stands apart from human endeavor and is therefore a fact that is not itself amenable to political evaluation. As we see well in the efforts of parents and teachers, advertising agencies and propaganda departments, culture is manipulable, manageable, and a direct locus of intentional action aimed precisely at harnessing its force as a way of controlling the lives of those who inhabit it. At the same time, however, culture is not the barrel of a gun or the chains of a dungeon. There are limits on the degree to which culture can actually control those who inhabit it. Those degrees depend to a great extent on the relative difficulty or ease of seeing through culture, of talking about it with others, and of seeing other alternatives or other ways of symbolizing the possible and the desirable. + +Understanding that culture is a matter of political concern even within a liberal framework does not, however, translate into an agenda of intervention in the cultural sphere as an extension of legitimate political decision making. Cultural discourse is systematically not amenable to formal regulation, management, or direction from the political system. First, participation in cultural discourse is intimately tied to individual self-expression, and its regulation would therefore require levels of intrusion in individual autonomy that would render any benefits in terms of a participatory political system Pyrrhic indeed. Second, culture is much more intricately woven into the fabric of everyday life than political processes and debates. It is language-- the basic framework within which we can comprehend anything, and through which we do so everywhere. To regulate culture is to regulate our very comprehension of the world we occupy. Third, therefore, culture infuses our thoughts at a wide range of levels of consciousness. Regulating culture, or intervening in its creation and direction, would entail self-conscious action to affect citizens at a subconscious or weakly conscious level. Fourth, and finally, there is no Archimedean point outside of culture on which to stand and decide--let us pour a little bit more of this kind of image or that, so that we achieve a better consciousness, one that better fits even our most just and legitimately arrived-at political determinations. + +A systematic commitment to avoid direct intervention in cultural exchange does not leave us with nothing to do or say about culture, and about law or policy as it relates to it. What we have is the capacity and need ,{[pg 299]}, to observe a cultural production and exchange system and to assure that it is as unconstraining and free from manipulation as possible. We must diagnose what makes a culture more or less opaque to its inhabitants; what makes it more or less liable to be strictly constraining of the conversations that rely on it; and what makes the possibility of many and diverse sources and forms of cultural intervention more or less likely. On the background of this project, I suggest that the emergence of Internet culture is an attractive development from the perspective of liberal political theory. This is so both because of the technical characteristics of digital objects and computer network communications, and because of the emerging industrial structure of the networked information economy--typified by the increased salience of nonmarket production in general and of individual production, alone or in concert with others, in particular. The openness of digital networks allows for a much wider range of perspectives on any particular symbol or range of symbols to be visible for anyone, everywhere. The cross section of views that makes it easy to see that Barbie is a contested symbol makes it possible more generally to observe very different cultural forms and perspectives for any individual. This transparency of background unstated assumptions and common knowledge is the beginning of self-reflection and the capacity to break out of given molds. Greater transparency is also a necessary element in, and a consequence of, collaborative action, as various participants either explicitly, or through negotiating the divergence of their nonexplicit different perspectives, come to a clearer statement of their assumptions, so that these move from the background to the fore, and become more amenable to examination and revision. The plasticity of digital objects, in turn, improves the degree to which individuals can begin to produce a new folk culture, one that already builds on the twentieth-century culture that was highly unavailable for folk retelling and re-creation. This plasticity, and the practices of writing your own culture, then feed back into the transparency, both because the practice of making one's own music, movie, or essay makes one a more self-conscious user of the cultural artifacts of others, and because in retelling anew known stories, we again come to see what the originals were about and how they do, or do not, fit our own sense of how things are and how they ought to be. There is emerging a broad practice of learning by doing that makes the entire society more effective readers and writers of their own culture. +={Internet:plasticity of culture;plasticity of Internet culture} + +By comparison to the highly choreographed cultural production system of the industrial information economy, the emergence of a new folk culture ,{[pg 300]}, and of a wider practice of active personal engagement in the telling and retelling of basic cultural themes and emerging concerns and attachments offers new avenues for freedom. It makes culture more participatory, and renders it more legible to all its inhabitants. The basic structuring force of culture is not eliminated, of course. The notion of floating monads disconnected from a culture is illusory. Indeed, it is undesirable. However, the framework that culture offers us, the language that makes it possible for us to make statements and incorporate the statements of others in the daily social conversation that pervades life, is one that is more amenable to our own remaking. We become more sophisticated users of this framework, more self-conscious about it, and have a greater capacity to recognize, challenge, and change that which we find oppressive, and to articulate, exchange, and adopt that which we find enabling. As chapter 11 makes clear, however, the tension between the industrial model of cultural production and the networked information economy is nowhere more pronounced than in the question of the degree to which the new folk culture of the twenty-first century will be permitted to build upon the outputs of the twentieth-century industrial model. In this battle, the stakes are high. One cannot make new culture ex nihilo. We are as we are today, as cultural beings, occupying a set of common symbols and stories that are heavily based on the outputs of that industrial period. If we are to make this culture our own, render it legible, and make it into a new platform for our needs and conversations today, we must find a way to cut, paste, and remix present culture. And it is precisely this freedom that most directly challenges the laws written for the twentieth-century technology, economy, and cultural practice. ,{[pg 301]}, + +1~9 Chapter 9 - Justice and Development +={human development and justice+91;justice and human development+91} + +How will the emergence of a substantial sector of nonmarket, commons-based production in the information economy affect questions of distribution and human well-being? The pessimistic answer is, very little. Hunger, disease, and deeply rooted racial, ethnic, or class stratification will not be solved by a more decentralized, nonproprietary information production system. Without clean water, basic literacy, moderately well-functioning governments, and universal practical adoption of the commitment to treat all human beings as fundamentally deserving of equal regard, the fancy Internet-based society will have little effect on the billions living in poverty or deprivation, either in the rich world, or, more urgently and deeply, in poor and middle-income economies. There is enough truth in this pessimistic answer to require us to tread lightly in embracing the belief that the shift to a networked information economy can indeed have meaningful effects in the domain of justice and human development. + +Despite the caution required in overstating the role that the networked information economy can play in solving issues of justice, ,{[pg 302]}, it is important to recognize that information, knowledge, and culture are core inputs into human welfare. Agricultural knowledge and biological innovation are central to food security. Medical innovation and access to its fruits are central to living a long and healthy life. Literacy and education are central to individual growth, to democratic self-governance, and to economic capabilities. Economic growth itself is critically dependent on innovation and information. For all these reasons, information policy has become a critical element of development policy and the question of how societies attain and distribute human welfare and well-being. Access to knowledge has become central to human development. The emergence of the networked information economy offers definable opportunities for improvement in the normative domain of justice, as it does for freedom, by comparison to what was achievable in the industrial information economy. +={commercial model of communication:barriers to justice+1;industrial model of communication:barriers to justice+1;institutional ecology of digital environment:barriers to justice+1;traditional model of communication:barriers to justice+1;policy:proprietary rights vs. justice+2;proprietary rights:justice vs.+2} + +We can analyze the implications of the emergence of the networked information economy for justice or equality within two quite different frames. The first is liberal, and concerned primarily with some form of equality of opportunity. The second is social-democratic, or development oriented, and focused on universal provision of a substantial set of elements of human well-being. The availability of information from nonmarket sources and the range of opportunities to act within a nonproprietary production environment improve distribution in both these frameworks, but in different ways. Despite the differences, within both frameworks the effect crystallizes into one of access--access to opportunities for one's own action, and access to the outputs and inputs of the information economy. The industrial economy creates cost barriers and transactional-institutional barriers to both these domains. The networked information economy reduces both types of barriers, or creates alternative paths around them. It thereby equalizes, to some extent, both the opportunities to participate as an economic actor and the practical capacity to partake of the fruits of the increasingly information-based global economy. + +The opportunities that the network information economy offers, however, often run counter to the central policy drive of both the United States and the European Union in the international trade and intellectual property systems. These two major powers have systematically pushed for ever-stronger proprietary protection and increasing reliance on strong patents, copyrights, and similar exclusive rights as the core information policy for growth and development. Chapter 2 explains why such a policy is suspect from a purely economic perspective concerned with optimizing innovation. ,{[pg 303]}, A system that relies too heavily on proprietary approaches to information production is not, however, merely inefficient. It is unjust. Proprietary rights are designed to elicit signals of people's willingness and ability to pay. In the presence of extreme distribution differences like those that characterize the global economy, the market is a poor measure of comparative welfare. A system that signals what innovations are most desirable and rations access to these innovations based on ability, as well as willingness, to pay, overrepresents welfare gains of the wealthy and underrepresents welfare gains of the poor. Twenty thousand American teenagers can simply afford, and will be willing to pay, much more for acne medication than the more than a million Africans who die of malaria every year can afford to pay for a vaccine. A system that relies too heavily on proprietary models for managing information production and exchange is unjust because it is geared toward serving small welfare increases for people who can pay a lot for incremental improvements in welfare, and against providing large welfare increases for people who cannot pay for what they need. + +2~ LIBERAL THEORIES OF JUSTICE AND THE NETWORKED INFORMATION ECONOMY +={human development and justice:liberal theories of+7;human welfare:liberal theories of justice+7;information economy:justice, liberal theories of+7;justice and human development:liberal theories of+7;liberal societies:theories of justice+7;welfare:liberal theories of justice+7|see also justice and human development} + +Liberal theories of justice can be categorized according to how they characterize the sources of inequality in terms of luck, responsibility, and structure. By luck, I mean reasons for the poverty of an individual that are beyond his or her control, and that are part of that individual's lot in life unaffected by his or her choices or actions. By responsibility, I mean causes for the poverty of an individual that can be traced back to his or her actions or choices. By structure, I mean causes for the inequality of an individual that are beyond his or her control, but are traceable to institutions, economic organizations, or social relations that form a society's transactional framework and constrain the behavior of the individual or undermine the efficacy of his or her efforts at self-help. +={background knowledge:see culture bad luck, justice and+2;DSL:see broadband networks dumb luck, justice and+2;luck, justice and+2;misfortune, justice and+2;organization structure:justice and+2;structure of organizations:justice and+2} + +We can think of John Rawls's /{Theory of Justice}/ as based on a notion that the poorest people are the poorest because of dumb luck. His proposal for a systematic way of defending and limiting redistribution is the "difference principle." A society should organize its redistribution efforts in order to make those who are least well-off as well-off as they can be. The theory of desert is that, because any of us could in principle be the victim of this dumb luck, we would all have agreed, if none of us had known where we ,{[pg 304]}, would be on the distribution of bad luck, to minimize our exposure to really horrendous conditions. The practical implication is that while we might be bound to sacrifice some productivity to achieve redistribution, we cannot sacrifice too much. If we did that, we would most likely be hurting, rather than helping, the weakest and poorest. Libertarian theories of justice, most prominently represented by Robert Nozick's entitlement theory, on the other hand, tend to ignore bad luck or impoverishing structure. They focus solely on whether the particular holdings of a particular person at any given moment are unjustly obtained. If they are not, they may not justly be taken from the person who holds them. Explicitly, these theories ignore the poor. As a practical matter and by implication, they treat responsibility as the source of the success of the wealthy, and by negation, the plight of the poorest--leading them to be highly resistant to claims of redistribution. +={Rawls, John+1;Nozick, Robert;redistribution theory+1} + +The basic observation that an individual's economic condition is a function of his or her own actions does not necessarily resolve into a blanket rejection of redistribution, as we see in the work of other liberals. Ronald Dworkin's work on inequality offers a critique of Rawls's, in that it tries to include a component of responsibility alongside recognition of the role of luck. In his framework, if (1) resources were justly distributed and (2) bad luck in initial endowment were compensated through some insurance scheme, then poverty that resulted from bad choices, not bad luck, would not deserve help through redistribution. While Rawls's theory ignores personal responsibility, and in this regard, is less attractive from the perspective of a liberal theory that respects individual autonomy, it has the advantage of offering a much clearer metric for a just system. One can measure the welfare of the poorest under different redistribution rules in market economies. One can then see how much redistribution is too much, in the sense that welfare is reduced to the point that the poorest are actually worse off than they would be under a less-egalitarian system. You could compare the Soviet Union, West Germany, and the United States of the late 1960s?early 1970s, and draw conclusions. Dworkin's insurance scheme would require too fine an ability to measure the expected incapacitating effect of various low endowments--from wealth to intelligence to health--in a market economy, and to calibrate wealth endowments to equalize them, to offer a measuring rod for policy. It does, however, have the merit of distinguishing--for purposes of judging desert to benefit from society's redistribution efforts--between a child of privilege who fell into poverty through bad investments coupled with sloth and a person born into a poor family with severe mental ,{[pg 305]}, defects. Bruce Ackerman's Social Justice and the Liberal State also provides a mechanism of differentiating the deserving from the undeserving, but adds policy tractability by including the dimension of structure to luck and responsibility. In addition to the dumb luck of how wealthy your parents are when you are born and what genetic endowment you are born with, there are also questions of the education system you grow up with and the transactional framework through which you live your life--which opportunities it affords, and which it cuts off or burdens. His proposals therefore seek to provide basic remedies for those failures, to the extent that they can, in fact, be remedied. One such proposal is Anne Alstott and Ackerman's idea of a government-funded personal endowment at birth, coupled with the freedom to squander it and suffer the consequential reduction in welfare.~{ Anne Alstott and Bruce Ackerman, The Stakeholder Society (New Haven, CT: Yale University Press, 1999). }~ He also emphasizes a more open and egalitarian transactional framework that would allow anyone access to opportunities to transact with others, rather than depending on, for example, unequal access to social links as a precondition to productive behavior. +={Dworkin, Ronald;Ackerman, Bruce+3;Alstott, Anne;capabilities of individuals:economic condition and;entertainment industry:see also music industry entitlement theory;individual capabilities and action:economic condition and;policy:liberal theories of justice and+3} + +The networked information economy improves justice from the perspective of every single one of these theories of justice. Imagine a good that improves the welfare of its users--it could be software, or an encyclopedia, or a product review. Now imagine a policy choice that could make production of that good on a nonmarket, peer-production basis too expensive to perform, or make it easy for an owner of an input to exclude competitors-- both market-based and social-production based. For example, a government might decide to: recognize patents on software interfaces, so that it would be very expensive to buy the right to make your software work with someone else's; impose threshold formal education requirements on the authors of any encyclopedia available for school-age children to read, or impose very strict copyright requirements on using information contained in other sources (as opposed to only prohibiting copying their language) and impose high penalties for small omissions; or give the putative subjects of reviews very strong rights to charge for the privilege of reviewing a product--such as by expanding trademark rights to refer to the product, or prohibiting a reviewer to take apart a product without permission. The details do not matter. I offer them only to provide a sense of the commonplace kinds of choices that governments could make that would, as a practical matter, differentially burden nonmarket producers, whether nonprofit organizations or informal peer-production collaborations. Let us call a rule set that is looser from the perspective of access to existing information resources Rule Set A, and a rule ,{[pg 306]}, set that imposes higher costs on access to information inputs Rule Set B. As explained in chapter 2, it is quite likely that adopting B would depress information production and innovation, even if it were intended to increase the production of information by, for example, strengthening copyright or patent. This is because the added incentives for some producers who produce with the aim of capturing the rents created by copyright or patents must be weighed against their costs. These include (a) the higher costs even for those producers and (b) the higher costs for all producers who do not rely on exclusive rights at all, but instead use either a nonproprietary market model--like service--or a nonmarket model, like nonprofits and individual authors, and that do not benefit in any way from the increased appropriation. However, let us make here a much weaker assumption--that an increase in the rules of exclusion will not affect overall production. Let us assume that there will be exactly enough increased production by producers who rely on a proprietary model to offset the losses of production in the nonproprietary sectors. + +It is easy to see why a policy shift from A to B would be regressive from the perspective of theories like Rawls's or Ackerman's. Under Rule A, let us say that in this state of affairs, State A, there are five online encyclopedias. One of them is peer produced and freely available for anyone to use. Rule B is passed. In the new State B, there are still five encyclopedias. It has become too expensive to maintain the free encyclopedia, however, and more profitable to run commercial online encyclopedias. A new commercial encyclopedia has entered the market in competition with the four commercial encyclopedias that existed in State A, and the free encyclopedia folded. From the perspective of the difference principle, we can assume that the change has resulted in a stable overall welfare in the Kaldor-Hicks sense. (That is, overall welfare has increased enough so that, even though some people may be worse off, those who have been made better off are sufficiently better off that they could, in principle, compensate everyone who is worse off enough to make everyone either better off or no worse off than they were before.) There are still five encyclopedias. However, now they all charge a subscription fee. The poorest members of society are worse off, even if we posit that total social welfare has remained unchanged. In State A, they had access for free to an encyclopedia. They could use the information (or the software utility, if the example were software) without having to give up any other sources of welfare. In State B, they must choose between the same amount ,{[pg 307]}, of encyclopedia usage as they had before, and less of some other source of welfare, or the same welfare from other sources, and no encyclopedia. If we assume, contrary to theory and empirical evidence from the innovation economics literature, that the move to State B systematically and predictably improves the incentives and investments of the commercial producers, that would still by itself not justify the policy shift from the perspective of the difference principle. One would have to sustain a much stricter claim: that the marginal improvement in the quality of the encyclopedias, and a decline in price from the added market competition that was not felt by the commercial producers when they were competing with the free, peer-produced version, would still make the poorest better off, even though they now must pay for any level of encyclopedia access, than they were when they had four commercial competitors with their prior levels of investment operating in a competitive landscape of four commercial and one free encyclopedia. +={Rawls, John} + +From the perspective of Ackerman's theory of justice, the advantages of the networked information economy are clearer yet. Ackerman characterizes some of the basic prerequisites for participating in a market economy as access to a transactional framework, to basic information, and to an adequate educational endowment. To the extent that any of the basic utilities required to participate in an information economy at all are available without sensitivity to price--that is, free to anyone--they are made available in a form that is substantially insulated from the happenstance of initial wealth endowments. In this sense at least, the development of a networked information economy overcomes some of the structural components of continued poverty--lack of access to information about market opportunities for production and cheaper consumption, about the quality of goods, or lack of communications capacity to people or places where one can act productively. While Dworkin's theory does not provide a similarly clear locus for mapping the effect of the networked information economy on justice, there is some advantage, and no loss, from this perspective, in having more of the information economy function on a nonmarket basis. As long as one recognizes bad luck as a partial reason for poverty, then having information resources available for free use is one mechanism of moderating the effects of bad luck in endowment, and lowers the need to compensate for those effects insofar as they translate to lack of access to information resources. This added access results from voluntary communication by the producers and a respect for their willingness to communicate what they produced freely. ,{[pg 308]}, While the benefits flow to individuals irrespective of whether their present state is due to luck or irresponsibility, it does not involve a forced redistribution from responsible individuals to irresponsible individuals. +={Dworkin, Ronald} + +From the perspective of liberal theories of justice, then, the emergence of the networked information economy is an unqualified improvement. Except under restrictive assumptions inconsistent with what we know as a matter of both theory and empirics about the economics of innovation and information production, the emergence of a substantial sector of information production and exchange that is based on social transactional frameworks, rather than on a proprietary exclusion business model, improves distribution in society. Its outputs are available freely to anyone, as basic inputs into their own actions--whether market-based or nonmarket-based. The facilities it produces improve the prospects of all who are connected to the Internet-- whether they are seeking to use it as consumers or as producers. It softens some of the effects of resource inequality. It offers platforms for greater equality of opportunity to participate in market- and nonmarket-based enterprises. This characteristic is explored in much greater detail in the next segment of this chapter, but it is important to emphasize here that equality of opportunity to act in the face of unequal endowment is central to all liberal theories of justice. As a practical matter, these characteristics of the networked information economy make the widespread availability of Internet access a more salient objective of redistribution policy. They make policy debates, which are mostly discussed in today's political sphere in terms of innovation and growth, and sometimes in terms of freedom, also a matter of liberal justice. + +2~ COMMONS-BASED STRATEGIES FOR HUMAN WELFARE AND DEVELOPMENT +={commons:human welfare and development+4;democratic societies:social-democratic theories of justice+4;global development+4;human development and justice+4;human welfare:commons-based strategies+4;justice and human development:commons-based strategies+4;social-democratic theories of justice+4;welfare:commons-based strategies+4} + +There is a long social-democratic tradition of focusing not on theoretical conditions of equality in a liberal society, but on the actual well-being of human beings in a society. This conception of justice shares with liberal theories the acceptance of market economy as a fundamental component of free societies. However, its emphasis is not equality of opportunity or even some level of social insurance that still allows the slothful to fall, but on assuring a basic degree of well-being to everyone in society. Particularly in the European social democracies, the ambition has been to make that basic level quite high, but the basic framework of even American Social Security-- ,{[pg 309]}, unless it is fundamentally changed in the coming years--has this characteristic. The literature on global poverty and its alleviation was initially independent of this concern, but as global communications and awareness increased, and as the conditions of life in most advanced market economies for most people improved, the lines between the concerns with domestic conditions and global poverty blurred. We have seen an increasing merging of the concerns into a concern for basic human well-being everywhere. It is represented in no individual's work more clearly than in that of Amartya Sen, who has focused on the centrality of development everywhere to the definition not only of justice, but of freedom as well. + +The emerging salience of global development as the core concern of distributive justice is largely based on the sheer magnitude of the problems faced by much of the world's population.~{ Numbers are all taken from the 2004 Human Development Report (New York: UN Development Programme, 2004). }~ In the world's largest democracy, 80 percent of the population--slightly more people than the entire population of the United States and the expanded European Union combined-- lives on less than two dollars a day, 39 percent of adults are illiterate, and 47 percent of children under the age of five are underweight for their age. In Africa's wealthiest democracy, a child at birth has a 45 percent probability of dying before he or she reaches the age of forty. India and South Africa are far from being the worst-off countries. The scope of destitution around the globe exerts a moral pull on any acceptable discussion of justice. Intuitively, these problems seem too fundamental to be seriously affected by the networked information economy--what has /{Wikipedia}/ got to do with the 49 percent of the population of Congo that lacks sustainable access to improved water sources? It is, indeed, important not to be overexuberant about the importance of information and communications policy in the context of global human development. But it is also important not to ignore the centrality of information to most of our more-advanced strategies for producing core components of welfare and development. To see this, we can begin by looking at the components of the Human Development Index (HDI). +={HDI (Human Development Index)+2;Human Development Index (HDI)+2;Human Development Report} + +The Human Development Report was initiated in 1990 as an effort to measure a broad set of components of what makes a life livable, and, ultimately, attractive. It was developed in contradistinction to indicators centered on economic output, like gross domestic product (GDP) or economic growth alone, in order to provide a more refined sense of what aspects of a nation's economy and society make it more or less livable. It allows a more nuanced approach toward improving the conditions of life everywhere. As ,{[pg 310]}, Sen pointed out, the people of China, Kerala in India, and Sri Lanka lead much longer and healthier lives than other countries, like Brazil or South Africa, which have a higher per capita income.~{ Amartya Sen, Development as Freedom (New York: Knopf, 1999), 46-47. }~ The Human Development Report measures a wide range of outcomes and characteristics of life. The major composite index it tracks is the Human Development Index. The HDI tries to capture the capacity of people to live long and healthy lives, to be knowledgeable, and to have material resources sufficient to provide a decent standard of living. It does so by combining three major components: life expectancy at birth, adult literacy and school enrollment, and GDP per capita. As Figure 9.1 illustrates, in the global information economy, each and every one of these measures is significantly, though not solely, a function of access to information, knowledge, and information-embedded goods and services. Life expectancy is affected by adequate nutrition and access to lifesaving medicines. Biotechnological innovation for agriculture, along with agronomic innovation in cultivation techniques and other, lower-tech modes of innovation, account for a high portion of improvements in the capacity of societies to feed themselves and in the availability of nutritious foods. Medicines depend on pharmaceutical research and access to its products, and health care depends on research and publication for the development and dissemination of information about best-care practices. Education is also heavily dependent, not surprisingly, on access to materials and facilities for teaching. This includes access to basic textbooks, libraries, computation and communications systems, and the presence of local academic centers. Finally, economic growth has been understood for more than half a century to be centrally driven by innovation. This is particularly true of latecomers, who can improve their own condition most rapidly by adopting best practices and advanced technology developed elsewhere, and then adapting to local conditions and adding their own from the new technological platform achieved in this way. All three of these components are, then, substantially affected by access to, and use of, information and knowledge. The basic premise of the claim that the emergence of the networked information economy can provide significant benefits to human development is that the manner in which we produce new information--and equally important, the institutional framework we use to manage the stock of existing information and knowledge around the world--can have significant impact on human development. ,{[pg 311]}, + +{won_benkler_9_1.png "Figure 9.1: HDI and Information" }http://www.jus.uio.no/sisu + +2~ INFORMATION-EMBEDDED GOODS AND TOOLS, INFORMATION, AND KNOWLEDGE +={human welfare:information-based advantages+7;welfare:information-based advantages+7} + +One can usefully idealize three types of information-based advantages that developed economies have, and that would need to be available to developing and less-developed economies if one's goal were the improvement in conditions in those economies and the opportunities for innovation in them. These include information-embedded material resources--consumption goods and production tools--information, and knowledge. +={goods, information-embedded+2;information-embedded goods+2;proprietary rights:information-embedded goods and tools+2} + +/{Information-Embedded Goods}/. These are goods that are not themselves information, but that are better, more plentiful, or cheaper because of some technological advance embedded in them or associated with their production. Pharmaceuticals and agricultural goods are the most obvious examples in the areas of health and food security, respectively. While there are other constraints on access to innovative products in these areas--regulatory and political in nature--a perennial barrier is cost. And a perennial barrier to competition that could reduce the cost is the presence of exclusive rights, ,{[pg 312]}, mostly in the form of patents, but also in the form of internationally recognized breeders' rights and regulatory data exclusivity. In the areas of computation and communication, hardware and software are the primary domains of concern. With hardware, there have been some efforts toward developing cheaper equipment--like the simputer and the Jhai computer efforts to develop inexpensive computers. Because of the relatively commoditized state of most components of these systems, however, marginal cost, rather than exclusive rights, has been the primary barrier to access. The solution, if one has emerged, has been aggregation of demand--a networked computer for a village, rather than an individual. For software, the initial solution was piracy. More recently, we have seen an increased use of free software instead. The former cannot genuinely be described as a "solution," and is being eliminated gradually by trade policy efforts. The latter--adoption of free software to obtain state-of-the-art software--forms the primary template for the class of commons-based solutions to development that I explore in this chapter. + +/{Information-Embedded Tools}/. One level deeper than the actual useful material things one would need to enhance welfare are tools necessary for innovation itself. In the areas of agricultural biotechnology and medicines, these include enabling technologies for advanced research, as well as access to materials and existing compounds for experimentation. Access to these is perhaps the most widely understood to present problems in the patent system of the developed world, as much as it is for the developing world--an awareness that has mostly crystallized under Michael Heller's felicitous phrase "anti-commons," or Carl Shapiro's "patent thicket." The intuition, whose analytic basis is explained in chapter 2, is that innovation is encumbered more than it is encouraged when basic tools for innovation are proprietary, where the property system gives owners of these tools proprietary rights to control innovation that relies on their tools, and where any given new innovation requires the consent of, and payment to, many such owners. This problem is not unique to the developing world. Nonetheless, because of the relatively small dollar value of the market for medicines that treat diseases that affect only poorer countries or of crop varieties optimized for those countries, the cost hurdle weighs more heavily on the public or nonprofit efforts to achieve food security and health in poor and middle-income countries. These nonmarket-based research efforts into diseases and crops of concern purely to these areas are not constructed to appropriate gains from ,{[pg 313]}, exclusive rights to research tools, but only bear their costs on downstream innovation. +={Heller, Michael;Shapiro, Carl;information-embedded tools;tools, information-embedded} + +/{Information}/. The distinction between information and knowledge is a tricky one. I use "information" here colloquially, to refer to raw data, scientific reports of the output of scientific discovery, news, and factual reports. I use "knowledge" to refer to the set of cultural practices and capacities necessary for processing the information into either new statements in the information exchange, or more important in our context, for practical use of the information in appropriate ways to produce more desirable actions or outcomes from action. Three types of information that are clearly important for purposes of development are scientific publications, scientific and economic data, and news and factual reports. Scientific publication has seen a tremendous cost escalation, widely perceived to have reached crisis proportions even by the terms of the best-endowed university libraries in the wealthiest countries. Over the course of the 1990s, some estimates saw a 260 percent increase in the prices of scientific publications, and libraries were reported choosing between journal subscription and monograph purchases.~{ Carol Tenopir and Donald W. King, Towards Electronic Journals: Realities for Scientists, Librarians, and Publishers (Washington, DC: Special Libraries Association, 2000), 273. }~ In response to this crisis, and in reliance on what were perceived to be the publication costreduction opportunities for Internet publication, some scientists--led by Nobel laureate and then head of the National Institutes of Health Harold Varmus--began to agitate for a scientist-based publication system.~{ Harold Varmus, E-Biomed: A Proposal for Electronic Publications in the Biomedical Sciences (Bethesda, MD: National Institutes of Health, 1999). }~ The debates were, and continue to be, heated in this area. However, currently we are beginning to see the emergence of scientist-run and -driven publication systems that distribute their papers for free online, either within a traditional peer-review system like the Public Library of Science (PLoS), or within tightly knit disciplines like theoretical physics, with only post-publication peer review and revision, as in the case of the Los Alamos Archive, or ArXiv.org. Together with free software and peer production on the Internet, the PLoS and ArXiv.org models offer insights into the basic shape of the class of commons-based, nonproprietary production solutions to problems of information production and exchange unhampered by intellectual property. +={Varmus, Harold;access:to raw data+1;economic data, access to+1;information, defined+1;public-domain data+1;raw data+1;scientific data, access to+1;scientific publication;public sphere relationships:see social relations and norms publication, scientific} + +Scientific and economic data present a parallel conceptual problem, but in a different legal setting. In the case of both types of data, much of it is produced by government agencies. In the United States, however, raw data is in the public domain, and while initial access may require payment of the cost of distribution, reworking of the data as a tool in information production ,{[pg 314]}, and innovation--and its redistribution by those who acquired access initially--is considered to be in the public domain. In Europe, this has not been the case since the 1996 Database Directive, which created a propertylike right in raw data in an effort to improve the standing of European database producers. Efforts to pass similar legislation in the United States have been mounted and stalled in practically every Congress since the mid1990s. These laws continue to be introduced, driven by the lobby of the largest owners of nongovernment databases, and irrespective of the fact that for almost a decade, Europe's database industry has grown only slowly in the presence of a right, while the U.S. database industry has flourished without an exclusive rights regime. + +News, market reports, and other factual reporting seem to have escaped the problems of barriers to access. Here it is most likely that the value-appropriation model simply does not depend on exclusive rights. Market data is generated as a by-product of the market function itself. Tiny time delays are sufficient to generate a paying subscriber base, while leaving the price trends necessary for, say, farmers to decide at what prices to sell their grain in the local market, freely available.~{ C. K. Prahald, The Fortune at the Bottom of the Pyramid: Eradicating Poverty Through Profits (Upper Saddle River, NJ: Wharton School of Publishing, 2005), 319-357, Section 4, "The ITC e-Choupal Story." }~ As I suggested in chapter 2, the advertising-supported press has never been copyright dependent, but has instead depended on timely updating of news to capture attention, and then attach that attention to advertising. This has not changed, but the speed of the update cycle has increased and, more important, distribution has become global, so that obtaining most information is now trivial to anyone with access to an Internet connection. While this continues to raise issues with deployment of communications hardware and the knowledge of how to use it, these issues can be, and are being, approached through aggregation of demand in either public or private forms. These types of information do not themselves appear to exhibit significant barriers to access once network connectivity is provided. +={factual reporting, access to;market reports, access to;news (as data)} + +/{Knowledge}/. In this context, I refer mostly to two types of concern. The first is the possibility of the transfer of implicit knowledge, which resists codification into what would here be treated as "information"--for example, training manuals. The primary mechanism for transfer of knowledge of this type is learning by doing, and knowledge transfer of this form cannot happen except through opportunities for local practice of the knowledge. The second type of knowledge transfer of concern here is formal instruction in an education context (as compared with dissemination of codified outputs for self- ,{[pg 315]}, teaching). Here, there is a genuine limit on the capacity of the networked information economy to improve access to knowledge. Individual, face-to-face instruction does not scale across participants, time, and distance. However, some components of education, at all levels, are nonetheless susceptible to improvement with the increase in nonmarket and radically decentralized production processes. The MIT Open Courseware initiative is instructive as to how the universities of advanced economies can attempt to make at least their teaching materials and manuals freely available to teachers throughout the world, thereby leaving the pedagogy in local hands but providing more of the basic inputs into the teaching process on a global scale. More important perhaps is the possibility that teachers and educators can collaborate, both locally and globally, on an open platform model like /{Wikipedia}/, to coauthor learning objects, teaching modules, and, more ambitiously, textbooks that could then be widely accessed by local teachers +={Open Courseware Initiative (MIT);educational instruction;formal instruction;implicit knowledge, transfer of;knowledge, defined;transfer of knowledge} + +2~ INDUSTRIAL ORGANIZATION OF HDI-RELATED INFORMATION INDUSTRIES +={industrial model of communication:information industries+2;information industries+2} + +The production of information and knowledge is very different from the production of steel or automobiles. Chapter 2 explains in some detail that information production has always included substantial reliance on nonmarket actors and on nonmarket, nonproprietary settings as core modalities of production. In software, for example, we saw that Mickey and romantic maximizer-type producers, who rely on exclusive rights directly, have accounted for a stable 36-37 percent of market-based revenues for software developers, while the remainder was focused on both supply-side and demand-side improvements in the capacity to offer software services. This number actually overstates the importance of software publishing, because it does not at all count free software development except when it is monetized by an IBM or a Red Hat, leaving tremendous value unaccounted for. A very large portion of the investments and research in any of the information production fields important to human development occur within the category that I have broadly described as "Joe Einstein." These include both those places formally designated for the pursuit of information and knowledge in themselves, like universities, and those that operate in the social sphere, but produce information and knowledge as a more or less central part of their existence--like churches or political parties. Moreover, individuals acting as social beings have played a central role in our information ,{[pg 316]}, production and exchange system. In order to provide a more sector-specific analysis of how commons-based, as opposed to proprietary, strategies can contribute to development, I offer here a more detailed breakdown specifically of software, scientific publication, agriculture, and biomedical innovation than is provided in chapter 2. +={Joe Einstein model;commons+1} + +Table 9.1 presents a higher-resolution statement of the major actors in these fields, within both the market and the nonmarket sectors, from which we can then begin to analyze the path toward, and the sustainability of, more significant commons-based production of the necessities of human development. Table 9.1 identifies the relative role of each of the types of main actors in information and knowledge production across the major sectors relevant to contemporary policy debates. It is most important to extract from this table the diversity of business models and roles not only in each industry, but also among industries. This diversity means that different types of actors can have different relative roles: nonprofits as opposed to individuals, universities as opposed to government, or nonproprietary market actors--that is, market actors whose business model is service based or otherwise does not depend on exclusive appropriation of information--as compared to nonmarket actors. The following segments look at each of these sectors more specifically, and describe the ways in which commons-based strategies are already, or could be, used to improve the access to information, knowledge, and the information-embedded goods and tools for human development. However, even a cursory look at the table shows that the current production landscape of software is particularly well suited to having a greater role for commonsbased production. For example, exclusive proprietary producers account for only one-third of software-related revenues, even within the market. The remainder is covered by various services and relationships that are compatible with nonproprietary treatment of the software itself. Individuals and nonprofit associations also have played a very large role, and continue to do so, not only in free software development, but in the development of standards as well. As we look at each sector, we see that they differ in their incumbent industrial landscape, and these differences mean that each sector may be more or less amenable to commons-based strategies, and, even if in principle amenable, may present harder or easier transition problems. ,{[pg 317]}, + +!_ Table 9.1: Map of Players and Roles in Major Relevant Sectors + +table{~h c7; 14; 14; 14; 14; 14; 14; 14; + +Actor Sector +Government +Universities, Libraries, etc. +IP-Based Industry +Non-IP-Based Industry +NGOs/ Nonprofits +Individuals + +Software +Research funding, defense, procurement +Basic research and design; components "incubate" much else +Software publishing (1/3 annual revenue) +Software services, customization (2/3 annual revenue) +FSF; Apache; W3C; IETF +Free/ opensource software + +Scientific publication +Research funding +University presses; salaries; promotions and tenure +Elsevier Science; professional associations +Biomed Central +PLoS; ArXiv +Working papers; Web-based self-publishing + +Agricultural Biotech +Grants and government labs +Basic research; tech transfer (50%) +Big Pharma; Biotech (50%) +Generics +One-World Health +None + +}table + +2~ TOWARD ADOPTING COMMONS-BASED STRATEGIES FOR DEVELOPMENT +={commons, production through+15:see peer production commons-based research+15;development, commons-based+15;human development and justice:commons-based research+15;human welfare:commons-based research+15;justice and human development:commons-based research;policy:commons-based research;proprietary rights:commons-based research+15|global welfare and research+4;research, commons-based+15;welfare:commons-based research+15;trade policy+4} + +The mainstream understanding of intellectual property by its dominant policy-making institutions--the Patent Office and U.S. trade representative in the United States, the Commission in the European Union, and the World Intellectual Property Organization (WIPO) and Trade-Related Aspects of Intellectual Property (TRIPS) systems internationally--is that strong protection is good, and stronger protection is better. In development and trade policy, this translates into a belief that the primary mechanism for knowledge transfer and development in a global information economy is for ,{[pg 318]}, all nations, developing as well as developed, to ratchet up their intellectual property law standards to fit the most protective regimes adopted in the United States and Europe. As a practical political matter, the congruence between the United States and the European Union in this area means that this basic understanding is expressed in the international trade system, in the World Trade Organization (WTO) and its TRIPS agreement, and in international intellectual property treaties, through the WIPO. The next few segments present an alternative view. Intellectual property as an institution is substantially more ambiguous in its effects on information production than the steady drive toward expansive rights would suggest. The full argument is in chapter 2. + +Intellectual property is particularly harmful to net information importers. In our present world trade system, these are the poor and middle-income nations. Like all users of information protected by exclusive rights, these nations are required by strong intellectual property rights to pay more than the marginal cost of the information at the time that they buy it. In the standard argument, this is intended to give producers incentives to create information that users want. Given the relative poverty of these countries, however, practically none of the intellectual-property-dependent producers develop products specifically with returns from poor or even middle-income markets in mind. The pharmaceutical industry receives about 5 percent of its global revenues from low- and middle-income countries. That is why we have so little investment in drugs for diseases that affect only those parts of the world. It is why most agricultural research that has focused on agriculture in poorer areas of the world has been public sector and nonprofit. Under these conditions, the above-marginal-cost prices paid in these poorer countries are purely regressive redistribution. The information, knowledge, and information-embedded goods paid for would have been developed in expectation of rich world rents alone. The prospects of rents from poorer countries do not affect their development. They do not affect either the rate or the direction of research and development. They simply place some of the rents that pay for technology development in the rich countries on consumers in poor and middle-income countries. The morality of this redistribution from the world's poor to the world's rich has never been confronted or defended in the European or American public spheres. It simply goes unnoticed. When crises in access to information-embedded goods do appear--such as in the AIDS/HIV access to medicines crisis--these are seldom tied to our ,{[pg 319]}, basic institutional choice. In our trade policies, Americans and Europeans push for ever-stronger protection. We thereby systematically benefit those who own much of the stock of usable human knowledge. We do so at the direct expense of those who need access to knowledge in order to feed themselves and heal their sick. +={HIV/AIDS+1;property ownership:trade policy+1} + +The practical politics of the international intellectual property and trade regime make it very difficult to reverse the trend toward ever-increasing exclusive property protections. The economic returns to exclusive proprietary rights in information are highly concentrated in the hands of those who own such rights. The costs are widely diffuse in the populations of both the developing and developed world. The basic inefficiency of excessive property protection is difficult to understand bycomparison to the intuitive, but mistaken, Economics 101 belief that property is good, more property is better, and intellectual property must be the same. The result is that pressures on the governmentsthat represent exporters of intellectual property rights permissions--in particular, the United States and the European Union--come in this area mostly from the owners, and they continuously push for everstronger rights. Monopoly is a good thing to have if you can get it. Its value for rent extraction isno less valuable for a database or patent-based company than it is for the dictator's nephew in a banana republic. However, its value to these supplicants does not make it any more efficient or desirable. The political landscape is, however, gradually beginning to change. Since the turn of the twenty-first century, and particularly in the wake of the urgency with which the HIV/AIDS crisis in Africa has infused the debate over access to medicines, there has been a growing public interest advocacy movementfocused on the intellectual property trade regime. This movement is, however, confronted with a highly playable system. A victory for developing world access in one round in the TRIPS context always leaves other places to construct mechanisms for exclusivity. Bilateral trade negotiations are one domain that is beginning to play an important role. In these, the United States or the European Union can force a rice- or cotton-exporting country to concede a commitment to strong intellectual property protection in exchange for favorable treatment for their core export. The intellectual property exporting nations can then go to WIPO, and push for new treaties based on the emerging international practice of bilateral agreements. This, in turn, would cycle back and be generalized and enforced through the trade regimes. Another approach is for the exporting nations to change their own ,{[pg 320]}, laws, and then drive higher standards elsewhere in the name of "harmonization." Because the international trade and intellectual property system is highly "playable" and manipulable in these ways, systematic resistance to the expansion of intellectual property laws is difficult. +={efficiency of information regulation:property protections;inefficiency of information regulation:property protections;proprietary rights, inefficiency of:property protections;reallocation:property protections} + +The promise of the commons-based strategies explored in the remainder of this chapter is that they can be implemented without changes in law-- either national or international. They are paths that the emerging networked information economy has opened to individuals, nonprofits, and publicsector organizations that want to help in improving human development in the poorer regions of the world to take action on their own. As with decentralized speech for democratic discourse, and collaborative production by individuals of the information environment they occupy as autonomous agents, here too we begin to see that self-help and cooperative action outside the proprietary system offer an opportunity for those who wish to pursue it. In this case, it is an opportunity to achieve a more just distribution of the world's resources and a set of meaningful improvements in human development. Some of these solutions are "commons-based," in the sense that they rely on free access to existing information that is in the commons, and they facilitate further use and development of that information and those information-embedded goods and tools by releasing their information outputs openly, and managing them as a commons, rather than as property. Some of the solutions are specifically peer-production solutions. We see this most clearly in software, and to some extent in the more radical proposals for scientific publication. I will also explore here the viability of peerproduction efforts in agricultural and biomedical innovation, although in those fields, commons-based approaches grafted onto traditional publicsector and nonprofit organizations at present hold the more clearly articulated alternatives. + +3~ Software +={free software:commons-based welfare development+3;open-source software:commons-based welfare development+3;software:commons-based welfare development+3;software, open-source:commons-based welfare development+3} + +The software industry offers a baseline case because of the proven large scope for peer production in free software. As in other information-intensive industries, government funding and research have played an enormously important role, and university research provides much of the basic science. However, the relative role of individuals, nonprofits, and nonproprietary market producers is larger in software than in the other sectors. First, twothirds of revenues derived from software in the United States are from services ,{[pg 321]}, and do not depend on proprietary exclusion. Like IBM's "Linux-related services" category, for which the company claimed more than two billion dollars of revenue for 2003, these services do not depend on exclusion from the software, but on charging for service relationships.~{ For the sources of numbers for the software industry, see chapter 2 in this volume. IBM numbers, in particular, are identified in figure 2.1. }~ Second, some of the most basic elements of the software environment--like standards and protocols--are developed in nonprofit associations, like the Internet Engineering Taskforce or the World Wide Web Consortium. Third, the role of individuals engaged in peer production--the free and open-source software development communities--is very large. Together, these make for an organizational ecology highly conducive to nonproprietary production, whose outputs can be freely usable around the globe. The other sectors have some degree of similar components, and commons-based strategies for development can focus on filling in the missing components and on leveraging nonproprietary components already in place. + +In the context of development, free software has the potential to play two distinct and significant roles. The first is offering low-cost access to highperforming software for developing nations. The second is creating the potential for participation in software markets based on human ability, even without access to a stock of exclusive rights in existing software. At present, there is a movement in both developing and the most advanced economies to increase reliance on free software. In the United States, the Presidential Technology Advisory Commission advised the president in 2000 to increase use of free software in mission-critical applications, arguing the high quality and dependability of such systems. To the extent that quality, reliability, and ease of self-customization are consistently better with certain free software products, they are attractive to developing-country governments for the same reasons that they are to the governments of developed countries. In the context of developing nations, the primary additional arguments that have been made include cost, transparency, freedom from reliance on a single foreign source (read, Microsoft), and the potential of local software programmers to learn the program, acquire skills, and therefore easily enter the global market with services and applications for free software.~{ These arguments were set out most clearly and early in a public exchange of letters between Representative Villanueva Nunez in Peru and Microsoft's representatives in that country. The exchange can be found on the Web site of the Open Source Initiative, http://www.opensource.org/docs/peru_and_ms.php. }~ The question of cost, despite the confusion that often arises from the word "free," is not obvious. It depends to some extent on the last hope--that local software developers will become skilled in the free software platforms. The cost of software to any enterprise includes the extent, cost, and efficacy with which the software can be maintained, upgraded, and fixed when errors occur. Free ,{[pg 322]}, software may or may not involve an up-front charge. Even if it does not, that does not make it cost-free. However, free software enables an open market in free software servicing, which in turn improves and lowers the cost of servicing the software over time. More important, because the software is open for all to see and because developer communities are often multinational, local developers can come, learn the software, and become relatively low-cost software service providers for their own government. This, in turn, helps realize the low-cost promise over and above the licensing fees avoided. Other arguments in favor of government procurement of free software focus on the value of transparency of software used for public purposes. The basic thrust of these arguments is that free software makes it possible for constituents to monitor the behavior of machines used in governments, to make sure that they are designed to do what they are publicly reported to do. The most significant manifestation of this sentiment in the United States is the hitherto-unsuccessful, but fairly persistent effort to require states to utilize voting machines that use free software, or at a minimum, to use software whose source code is open for public inspection. This is a consideration that, if valid, is equally suitable for developing nations. The concern with independence from a single foreign provider, in the case of operating systems, is again not purely a developing-nation concern. Just as the United States required American Marconi to transfer its assets to an American company, RCA, so that it would not be dependent for a critical infrastructure on a foreign provider, other countries may have similar concerns about Microsoft. Again, to the extent that this is a valid concern, it is so for rich nations as much as it is for poor, with the exceptions of the European Union and Japan, which likely do have bargaining power with Microsoft to a degree that smaller markets do not. +={services, software+1;transparency of free software} + +The last and quite distinct potential gain is the possibility of creating a context and an anchor for a free software development sector based on service. This was cited as the primary reason behind Brazil's significant push to use free software in government departments and in telecenters that the federal government is setting up to provide Internet service access to some of its poorer and more remote areas. Software services represent a very large industry. In the United States, software services are an industry roughly twice the size of the movie and video industry. Software developers from low- and middle-income countries can participate in the growing free software segment of this market by using their skills alone. Unlike with service for the proprietary domain, they need not buy licenses to learn and practice the ,{[pg 323]}, services. Moreover, if Brazil, China, India, Indonesia, and other major developing countries were to rely heavily on free software, then the "internal market," within the developing world, for free software?related services would become very substantial. Building public-sector demand for these services would be one place to start. Moreover, because free software development is a global phenomenon, free software developers who learn their skills within the developing world would be able to export those skills elsewhere. Just as India's call centers leverage the country's colonial past with its resulting broad availability of English speakers, so too countries like Brazil can leverage their active free software development community to provide software services for free software platforms anywhere in the developed and developing worlds. With free software, the developing-world providers can compete as equals. They do not need access to permissions to operate. Their relationships need not replicate the "outsourcing" model so common in proprietary industries, where permission to work on a project is the point of control over the ability to do so. There will still be branding issues that undoubtedly will affect access to developed markets. However, there will be no baseline constraints of minimal capital necessary to enter the market and try to develop a reputation for reliability. As a development strategy, then, utilization of free software achieves transfer of information-embedded goods for free or at low cost. It also transfers information about the nature of the product and its operation--the source code. Finally, it enables transfer, at least potentially, of opportunities for learning by doing and of opportunities for participating in the global market. These would depend on knowledge of a free software platform that anyone is free to learn, rather than on access to financial capital or intellectual property inventories as preconditions to effective participation. + +3~ Scientific Publication +={public sphere relationships+6:see social relations and norms publication, scientific+6;scientific publication:commons-based welfare development+6} + +Scientific publication is a second sector where a nonproprietary strategy can be implemented readily and is already developing to supplant the proprietary model. Here, the existing market structure is quite odd in a way that likely makes it unstable. Authoring and peer review, the two core value-creating activities, are done by scientists who perform neither task in expectation of royalties or payment. The model of most publications, however, is highly proprietary. A small number of business organizations, like Elsevier Science, control most of the publications. Alongside them, professional associations of scientists also publish their major journals using a proprietary model. ,{[pg 324]}, Universities, whose scientists need access to the papers, incur substantial cost burdens to pay for the publications as a basic input into their own new work. While the effects of this odd system are heavily felt in universities in rich countries, the burden of subscription rates that go into the thousands of dollars per title make access to up-to-date scientific research prohibitive for universities and scientists working in poorer economies. Nonproprietary solutions are already beginning to emerge in this space. They fall into two large clusters. +={authoring of scientific publications+2;peer review of scientific publications+2;proprietary rights:scientific publication+2} + +The first cluster is closer to the traditional peer-review publication model. It uses Internet communications to streamline the editorial and peer-review system, but still depends on a small, salaried editorial staff. Instead of relying on subscription payments, it relies on other forms of payments that do not require charging a price for the outputs. In the case of the purely nonprofit Public Library of Science (PLoS), the sources of revenue combine author's payments for publication, philanthropic support, and university memberships. In the case of the for-profit BioMed Central, based in the United Kingdom, it is a combination of author payments, university memberships, and a variety of customized derivative products like subscription-based literature reviews and customized electronic update services. Author payments--fees authors must pay to have their work published--are built into the cost of scientific research and included in grant applications. In other words, they are intended to be publicly funded. Indeed, in 2005, the National Institutes of Health (NIH), the major funding agency for biomedical science in the United States, announced a requirement that all NIH-funded research be made freely available on the Web within twelve months of publication. Both PLoS and BioMed Central have waiver processes for scientists who cannot pay the publication fees. The articles on both systems are available immediately for free on the Internet. The model exists. It works internally and is sustainable as such. What is left in determining the overall weight that these open-access journals will have in the landscape of scientific publication is the relatively conservative nature of universities themselves. The established journals, like Science or Nature, still carry substantially more prestige than the new journals. As long as this is the case, and as long as hiring and promotion decisions continue to be based on the prestige of the journal in which a scientist's work is published, the ability of the new journals to replace the traditional ones will be curtailed. Some of the established journals, however, are operated by professional associations of scientists. There is an internal tension between the interests of the associations in securing ,{[pg 325]}, their revenue and the growing interest of scientists in open-access publication. Combined with the apparent economic sustainability of the open-access journals, it seems that some of these established journals will likely shift over to the open-access model. At a minimum, policy interventions like those proposed by the NIH will force traditional publications to adapt their business model by making access free after a few months. The point here, however, is not to predict the overall likely success of open-access journals. It is to combine them with what we have seen happening in software as another example of a reorganization of the components of the industrial structure of an information production system. Individual scientists, government funding agencies, nonprofits and foundations, and nonproprietary commercial business models can create the same good--scientific publication--but without the cost barrier that the old model imposed on access to its fruits. Such a reorientation would significantly improve the access of universities and physicians in developing nations to the most advanced scientific publication. +={BioMed Central;NIH (National Institutes of Health);PLoS (Public Library of Science);Public Library of Science (PLoS)} + +The second approach to scientific publication parallels more closely free software development and peer production. This is typified by ArXiv and the emerging practices of self-archiving or self-publishing. ArXiv.org is an online repository of working papers in physics, mathematics, and computer science. It started out focusing on physics, and that is where it has become the sine qua non of publication in some subdisciplines. The archive does not perform review except for technical format compliance. Quality control is maintained by postpublication review and commentary, as well as by hosting updated versions of the papers with explanations (provided by authors) of the changes. It is likely that the reason ArXiv.org has become so successful in physics is the very small and highly specialized nature of the discipline. The universe of potential readers is small, and their capacity to distinguish good arguments from bad is high. Reputation effects of poor publications are likely immediate. +={ArXiv.org+1;archiving of scientific publications+1;self-archiving of scientific publications+1} + +While ArXiv offers a single repository, a much broader approach has been the developing practice of self-archiving. Academics post their completed work on their own Web sites and make it available freely. The primary limitation of this mechanism is the absence of an easy, single location where one can search for papers on a topic of concern. And yet we are already seeing the emergence of tagging standards and protocols that allow anyone to search the universe of self-archived materials. Once completed, such a development process would in principle render archiving by single points of reference unnecessary. The University of Michigan Digital Library Production ,{[pg 326]}, Service, for example, has developed a protocol called OAIster (pronounced like oyster, with the tagline "find the pearls"), which combines the acronym of Open Archives Initiative with the "ster" ending made popular in reference to peer-to-peer distribution technologies since Napster (AIMster, Grokster, Friendster, and the like). The basic impulse of the Open Archives Initiative is to develop a sufficiently refined set of meta-data tags that would allow anyone who archives their materials with OAI-compliant tagging to be searched easily, quickly, and accurately on the Web. In that case, a general Web search becomes a targeted academic search in a "database" of scientific publications. However, the database is actually a network of self-created, small personal databases that comply with a common tagging and search standard. Again, my point here is not to explore the details of one or another of these approaches. If scientists and other academics adopt this approach of self-archiving coupled with standardized interfaces for global, welldelimited searches, the problem of lack of access to academic publication because of their high-cost publication will be eliminated. +={OAIster protocol;Open Archives Initiative} + +Other types of documents, for example, primary- and secondary-education textbooks, are in a much more rudimentary stage of the development of peer-production models. First, it should be recognized that responses to illiteracy and low educational completion in the poorer areas of the world are largely a result of lack of schoolteachers, physical infrastructure for classrooms, demand for children's schooling among parents who are themselves illiterate, and lack of effectively enforced compulsory education policy. The cost of textbooks contributes only a portion of the problem of cost. The opportunity cost of children's labor is probably the largest factor. Nonetheless, outdated materials and poor quality of teaching materials are often cited as one limit on the educational achievement of those who do attend school. The costs of books, school fees, uniforms, and stationery can amount to 20? 30 percent of a family's income.~{ A good regional study of the extent and details of educational deprivation is Mahbub ul Haq and Khadija ul Haq, Human Development in South Asia 1998: The Education Challenge (Islamabad, Pakistan: Human Development Center). }~ The component of the problem contributed by the teaching materials may be alleviated by innovative approaches to textbook and education materials authoring. Chapter 4 already discussed some textbook initiatives. The most successful commons-based textbook authoring project, which is also the most relevant from the perspective of development, is the South African project, Free High School Science Texts (FHSST). The FHSST initiative is more narrowly focused than the broader efforts of Wikibooks or the California initiative, more managed, and more successful. Nonetheless, in three years of substantial effort by a group of dedicated volunteers who administer the project, its product is one physics ,{[pg 327]}, high school text, and advanced drafts of two other science texts. The main constraint on the efficacy of collaborative textbook authoring is that compliance requirements imposed by education ministries tend to require a great degree of coherence, which constrains the degree of modularity that these text-authoring projects adopt. The relatively large-grained contributions required limit the number of contributors, slowing the process. The future of these efforts is therefore likely to be determined by the extent to which their designers are able to find ways to make finer-grained modules without losing the coherence required for primary- and secondary-education texts. Texts at the post-secondary level likely present less of a problem, because of the greater freedom instructors have to select texts. This allows an initiative like MIT's Open Courseware Initiative to succeed. That initiative provides syllabi, lecture notes, problem sets, etc. from over 1,100 courses. The basic creators of the materials are paid academics who produce these materials for one of their core professional roles: teaching college- and graduate-level courses. The content is, by and large, a "side-effect" of teaching. What is left to be done is to integrate, create easy interfaces and search capabilities, and so forth. The university funds these functions through its own resources and dedicated grant funding. In the context of MIT, then, these functions are performed on a traditional model--a large, well-funded nonprofit provides an important public good through the application of full-time staff aimed at non-wealth-maximizing goals. The critical point here was the radical departure of MIT from the emerging culture of the 1980s and 1990s in American academia. When other universities were thinking of "distance education" in terms of selling access to taped lectures and materials so as to raise new revenue, MIT thought of what its basic mandate to advance knowledge and educate students in a networked environment entailed. The answer was to give anyone, anywhere, access to the teaching materials of some of the best minds in the world. As an intervention in the ecology of free knowledge and information and an act of leadership among universities, the MIT initiative was therefore a major event. As a model for organizational innovation in the domain of information production generally and the creation of educational resources in particular, it was less significant. +={FHSST (Free High School Science Texts);Free High School Science Texts (FHSST);teaching materials;textbooks;educational instruction;MIT's Open Courseware Initiative;Open Courseware Initiative (MIT)} + +Software and academic publication, then, offer the two most advanced examples of commons-based strategies employed in a sector whose outputs are important to development, in ways that improve access to basic information, knowledge, and information-embedded tools. Building on these basic cases, we can begin to see how similar strategies can be employed to ,{[pg 328]}, create a substantial set of commons-based solutions that could improve the distribution of information germane to human development. + +2~ COMMONS-BASED RESEARCH FOR FOOD AND MEDICINES +={commons, production through+24:see peer production commons-based research|food and agricultural innovation+24;development, commons-based:food and agricultural innovation+24;global development:food and agricultural innovation+24;research, commons-based:food and agricultural innovation+24} + +While computation and access to existing scientific research are important in the development of any nation, they still operate at a remove from the most basic needs of the world poor. On its face, it is far from obvious how the emergence of the networked information economy can grow rice to feed millions of malnourished children or deliver drugs to millions of HIV/AIDS patients. On closer observation, however, a tremendous proportion of the way modern societies grow food and develop medicines is based on scientific research and technical innovation. We have seen how the functions of mass media can be fulfilled by nonproprietary models of news and commentary. We have seen the potential of free and open source software and open-access publications to replace and redress some of the failures of proprietary software and scientific publication, respectively. These cases suggest that the basic choice between a system that depends on exclusive rights and business models that use exclusion to appropriate research outputs and a system that weaves together various actors--public and private, organized and individual--in a nonproprietary social network of innovation, has important implications for the direction of innovation and for access to its products. Public attention has focused mostly on the HIV/AIDS crisis in Africa and the lack of access to existing drugs because of their high costs. However, that crisis is merely the tip of the iceberg. It is the most visible to many because of the presence of the disease in rich countries and its cultural and political salience in the United States and Europe. The exclusive rights system is a poor institutional mechanism for serving the needs of those who are worst off around the globe. Its weaknesses pervade the problems of food security and agricultural research aimed at increasing the supply of nourishing food throughout the developing world, and of access to medicines in general, and to medicines for developing-world diseases in particular. Each of these areas has seen a similar shift in national and international policy toward greater reliance on exclusive rights, most important of which are patents. Each area has also begun to see the emergence of commons-based models to alleviate the problems of patents. However, they differ from each other still. Agriculture offers more immediate opportunities for improvement ,{[pg 329]}, because of the relatively larger role of public research--national, international, and academic--and of the long practices of farmer innovation in seed associations and local and regional frameworks. I explore it first in some detail, as it offers a template for what could be a path for development in medical research as well. +={HIV/AIDS;folk culture:see culture food, commons-research based on} + +2~ Food Security: Commons-Based Agricultural Innovation +={agricultural innovation, commons-based+22;food security, commons-based research on+22;innovation:agricultural, commons-based+22} + +Agricultural innovation over the past century has led to a vast increase in crop yields. Since the 1960s, innovation aimed at increasing yields and improving quality has been the centerpiece of efforts to secure the supply of food to the world's poor, to avoid famine and eliminate chronic malnutrition. These efforts have produced substantial increases in the production of food and decreases in its cost, but their benefits have varied widely in different regions of the world. Now, increases in productivity are not alone a sufficient condition to prevent famine. Sen's observations that democracies have no famines--that is, that good government and accountability will force public efforts to prevent famine--are widely accepted today. The contributions of the networked information economy to democratic participation and transparency are discussed in chapters 6-8, and to the extent that those chapters correctly characterize the changes in political discourse, should help alleviate human poverty through their effects on democracy. However, the cost and quality of food available to accountable governments of poor countries, or to international aid organizations or nongovernment organizations (NGOs) that step in to try to alleviate the misery caused by ineffective or malicious governments, affect how much can be done to avoid not only catastrophic famine, but also chronic malnutrition. Improvements in agriculture make it possible for anyone addressing food security to perform better than they could have if food production had lower yields, of less nutritious food, at higher prices. Despite its potential benefits, however, agricultural innovation has been subject to an unusual degree of sustained skepticism aimed at the very project of organized scientific and scientifically based innovation. Criticism combines biological-ecological concerns with social and economic concerns. Nowhere is this criticism more strident, or more successful at moving policy, than in current European resistance to genetically modified (GM) foods. The emergence of commons-based production strategies can go some way toward allaying the biological-ecological fears by locating much of the innovation at the local level. Its primary benefit, however, ,{[pg 330]}, is likely to be in offering a path for agricultural and biological innovation that is sustainable and low cost, and that need not result in appropriation of the food production chain by a small number of multinational businesses, as many critics fear. + +Scientific plant improvement in the United States dates back to the establishment of the U.S. Department of Agriculture, the land-grant universities, and later the state agricultural experiment stations during the Civil War and in the decades that followed. Public-sector investment dominated agricultural research at the time, and with the rediscovery of Mendel's work in 1900, took a turn toward systematic selective breeding. Through crop improvement associations, seed certification programs, and open-release policies allowing anyone to breed and sell the certified new seeds, farmers were provided access to the fruits of public research in a reasonably efficient and open market. The development of hybrid corn through this system was the first major modern success that vastly increased agricultural yields. It reshaped our understanding not only of agriculture, but also more generally of the value of innovation, by comparison to efficiency, to growth. Yields in the United States doubled between the mid-1930s and the mid-1950s, and by the mid-1980s, cornfields had a yield six times greater than they had fifty years before. Beginning in the early 1960s, with funding from the Rockefeller and Ford foundations, and continuing over the following forty years, agricultural research designed to increase the supply of agricultural production and lower its cost became a central component of international and national policies aimed at securing the supply of food to the world's poor populations, avoiding famines and, ultimately, eliminating chronic malnutrition. The International Rice Research Institute (IRRI) in the Philippines was the first such institute, founded in the 1960s, followed by the International Center for Wheat and Maize Improvement (CIM-MYT) in Mexico (1966), and the two institutes for tropical agriculture in Colombia and Nigeria (1967). Together, these became the foundation for the Consultative Group for International Agricultural Research (CGIAR), which now includes sixteen centers. Over the same period, National Agricultural Research Systems (NARS) also were created around the world, focusing on research specific to local agroecological conditions. Research in these centers preceded the biotechnology revolution, and used various experimental breeding techniques to obtain high-yielding plants: for example, plants with shorter growing seasons, or more adapted to intensive fertilizer use. These efforts later introduced varieties ,{[pg 331]}, that were resistant to local pests, diseases, and to various harsh environmental conditions. + +The "Green Revolution," as the introduction of these new, scientificresearch-based varieties has been called, indeed resulted in substantial increases in yields, initially in rice and wheat, in Asia and Latin America. The term "Green Revolution" is often limited to describing these changes in those regions in the 1960s and 1970s. A recent study shows, however, that the growth in yields has continued throughout the last forty years, and has, with varying degrees, occurred around the world.~{ Robert Evenson and D. Gollin, eds., Crop Variety Improvement and Its Effect on Productivity: The Impact of International Agricultural Research (New York: CABI Pub., 2002); results summarized in Robert Evenson and D. Gollin, "Assessing the Impact of the Green Revolution, 1960-2000," Science 300 (May 2003): 758-762. }~ More than eight thousand modern varieties of rice, wheat, maize, other major cereals, and root and protein crops have been released over the course of this period by more than four hundred public breeding programs. One of the most interesting finds of this study was that fewer than 1 percent of these modern varieties had any crosses with public or private breeding programs in the developed world, and that private-sector contributions in general were limited to hybrid maize, sorghum, and millet. The effort, in other words, was almost entirely public sector, and almost entirely based in the developing world, with complementary efforts of the international and national programs. Yields in Asia increased sevenfold from 1961 to 2000, and fivefold in Latin America, the Middle East/North Africa, and Sub-Saharan Africa. More than 60 percent of the growth in Asia and Latin America occurred in the 1960s?1980s, while the primary growth in Sub-Saharan Africa began in the 1980s. In Latin America, most of the early-stage increases in yields came from increasing cultivated areas ( 40 percent), and from other changes in cultivation-- increased use of fertilizer, mechanization, and irrigation. About 15 percent of the growth in the early period was attributable to the use of modern varieties. In the latter twenty years, however, more than 40 percent of the total increase in yields was attributable to the use of new varieties. In Asia in the early period, about 19 percent of the increase came from modern varieties, but almost the entire rest of the increase came from increased use of fertilizer, mechanization, and irrigation, not from increased cultivated areas. It is trivial to see why changes of this sort would elicit both environmental and a socialeconomic critique of the industrialization of farm work. Again, though, in the latter twenty years, 46 percent of the increase in yields is attributable to the use of modern varieties. Modern varieties played a significantly less prominent role in the Green Revolution of the Middle East and Africa, contributing 5-6 percent of the growth in yields. In Sub-Saharan Africa, for example, ,{[pg 332]}, early efforts to introduce varieties from Asia and Latin America failed, and local developments only began to be adopted in the 1980s. In the latter twenty-year period, however, the Middle East and North Africa did see a substantial role for modern varieties--accounting for close to 40 percent of a more than doubling of yields. In Sub-Saharan Africa, the overwhelming majority of the tripling of yields came from increasing area of cultivation, and about 16 percent came from modern varieties. Over the past forty years, then, research-based improvements in plants have come to play a larger role in increasing agricultural yields in the developing world. Their success was, however, more limited in the complex and very difficult environments of SubSaharan Africa. Much of the benefit has to do with local independence, as opposed to heavier dependence on food imports. Evenson and Gollin, for example, conservatively estimate that higher prices and a greater reliance on imports in the developing world in the absence of the Green Revolution would have resulted in 13-14 percent lower caloric intake in the developing world, and in a 6-8 percent higher proportion of malnourished children. While these numbers may not seem eye-popping, for populations already living on marginal nutrition, they represent significant differences in quality of life and in physical and mental development for millions of children and adults. +={Green Revolution+5} + +The agricultural research that went into much of the Green Revolution did not involve biotechnology--that is, manipulation of plant varieties at the genetic level through recombinant DNA techniques. Rather, it occurred at the level of experimental breeding. In the developed world, however, much of the research over the past twenty-five years has been focused on the use of biotechnology to achieve more targeted results than breeding can, has been more heavily based on private-sector investment, and has resulted in more private-sector ownership over the innovations. The promise of biotechnology, and particularly of genetically engineered or modified foods, has been that they could provide significant improvements in yields as well as in health effects, quality of the foods grown, and environmental effects. Plants engineered to be pest resistant could decrease the need to use pesticides, resulting in environmental benefits and health benefits to farmers. Plants engineered for ever-higher yields without increasing tilled acreage could limit the pressure for deforestation. Plants could be engineered to carry specific nutritional supplements, like golden rice with beta-carotene, so as to introduce necessarily nutritional requirements into subsistence diets. Beyond the hypothetically optimistic possibilities, there is little question that genetic engineering has already produced crops that lower the cost of production ,{[pg 333]}, for farmers by increasing herbicide and pest tolerance. As of 2002, more than 50 percent of the world's soybean acreage was covered with genetically modified (GM) soybeans, and 20 percent with cotton. Twenty-seven percent of acreage covered with GM crops is in the developing world. This number will grow significantly now that Brazil has decided to permit the introduction of GM crops, given its growing agricultural role, and now that India, as the world's largest cotton producer, has approved the use of Bt cotton--a GM form of cotton that improves its resistance to a common pest. There are, then, substantial advantages to farmers, at least, and widespread adoption of GM crops both in the developed world outside of Europe and in the developing world. +={biotechnology+7;genetically modified (GM) foods+7;GM (genetically modified) foods+7} + +This largely benign story of increasing yields, resistance, and quality has not been without critics, to put it mildly. The criticism predates biotechnology and the development of transgenic varieties. Its roots are in criticism of experimental breeding programs of the American agricultural sectors and the Green Revolution. However, the greatest public visibility and political success of these criticisms has been in the context of GM foods. The critique brings together odd intellectual and political bedfellows, because it includes five distinct components: social and economic critique of the industrialization of agriculture, environmental and health effects, consumer preference for "natural" or artisan production of foodstuffs, and, perhaps to a more limited extent, protectionism of domestic farm sectors. + +Perhaps the oldest component of the critique is the social-economic critique. One arm of the critique focuses on how mechanization, increased use of chemicals, and ultimately the use of nonreproducing proprietary seed led to incorporation of the agricultural sector into the capitalist form of production. In the United States, even with its large "family farm" sector, purchased inputs now greatly exceed nonpurchased inputs, production is highly capital intensive, and large-scale production accounts for the majority of land tilled and the majority of revenue captured from farming.~{ Jack R. Kloppenburg, Jr., First the Seed: The Political Economy of Plant Biotechnology 1492-2000 (Cambridge and New York: Cambridge University Press, 1988), table 2.2. }~ In 2003, 56 percent of farms had sales of less than $10,000 a year. Roughly 85 percent of farms had less than $100,000 in sales.~{ USDA National Agriculture Statistics Survey (2004), http://www.usda.gov/ nass/aggraphs/fncht3.htm. }~ These farms account for only 42 percent of the farmland. By comparison, 3.4 percent of farms have sales of more than $500,000 a year, and account for more than 21 percent of land. In the aggregate, the 7.5 percent of farms with sales over $250,000 account for 37 percent of land cultivated. Of all principal owners of farms in the United States in 2002, 42.5 percent reported something other than farming as their principal occupation, and many reported spending two hundred or ,{[pg 334]}, more days off-farm, or even no work days at all on the farm. The growth of large-scale "agribusiness," that is, mechanized, rationalized industrial-scale production of agricultural products, and more important, of agricultural inputs, is seen as replacing the family farm and the small-scale, self-sufficient farm, and bringing farm labor into the capitalist mode of production. As scientific development of seeds and chemical applications increases, the seed as input becomes separated from the grain as output, making farmers dependent on the purchase of industrially produced seed. This further removes farmwork from traditional modes of self-sufficiency and craftlike production to an industrial mode. This basic dynamic is repeated in the critique of the Green Revolution, with the added overlay that the industrial producers of seed are seen to be multinational corporations, and the industrialization of agriculture is seen as creating dependencies in the periphery on the industrial-scientific core of the global economy. + +The social-economic critique has been enmeshed, as a political matter, with environmental, health, and consumer-oriented critiques as well. The environmental critiques focus on describing the products of science as monocultures, which, lacking the genetic diversity of locally used varieties, are more susceptible to catastrophic failure. Critics also fear contamination of existing varieties, unpredictable interactions with pests, and negative effects on indigenous species. The health effects concern focused initially on how breeding for yield may have decreased nutritional content, and in the more recent GM food debates, the concern that genetically altered foods will have some unanticipated negative health reactions that would only become apparent many years from now. The consumer concerns have to do with quality and an aesthetic attraction to artisan-mode agricultural products and aversion to eating industrial outputs. These social-economic and environmental-health-consumer concerns tend also to be aligned with protectionist lobbies, not only for economic purposes, but also reflecting a strong cultural attachment to the farming landscape and human ecology, particularly in Europe. +={environmental criticism of GM foods+1;health effects of GM foods+1} + +This combination of social-economic and postcolonial critique, environmentalism, public-health concerns, consumer advocacy, and farm-sector protectionism against the relatively industrialized American agricultural sector reached a height of success in the 1999 five-year ban imposed by the European Union on all GM food sales. A recent study of a governmental Science Review Board in the United Kingdom, however, found that there was no ,{[pg 335]}, evidence for any of the environmental or health critiques of GM foods.~{ First Report of the GM Science Review Panel, An Open Review of the Science Relevant to GM Crops and Food Based on the Interests and Concerns of the Public, United Kingdom, July 2003. }~ Indeed, as Peter Pringle masterfully chronicled in Food, Inc., both sides of the political debate could be described as having buffed their cases significantly. The successes and potential benefits have undoubtedly been overstated by enamored scientists and avaricious vendors. There is little doubt, too, that the near-hysterical pitch at which the failures and risks of GM foods have been trumpeted has little science to back it, and the debate has degenerated to a state that makes reasoned, evidence-based consideration difficult. In Europe in general, however, there is wide acceptance of what is called a "precautionary principle." One way of putting it is that absence of evidence of harm is not evidence of absence of harm, and caution counsels against adoption of the new and at least theoretically dangerous. It was this precautionary principle rather than evidence of harm that was at the base of the European ban. This ban has recently been lifted, in the wake of a WTO trade dispute with the United States and other major producers who challenged the ban as a trade barrier. However, the European Union retained strict labeling requirements. This battle among wealthy countries, between the conservative "Fortress Europe" mentality and the growing reliance of American agriculture on biotechnological innovation, would have little moral valence if it did not affect funding for, and availability of, biotechnological research for the populations of the developing world. Partly as a consequence of the strong European resistance to GM foods, the international agricultural research centers that led the way in the development of the Green Revolution varieties, and that released their developments freely for anyone to sell and use without proprietary constraint, were slow to develop capacity in genetic engineering and biotechnological research more generally. Rather than the public national and international efforts leading the way, a study of GM use in developing nations concluded that practically all GM acreage is sown with seed obtained in the finished form from a developed-world supplier, for a price premium or technology licensing fee.~{ Robert E. Evenson, "GMOs: Prospects for Productivity Increases in Developing Countries," Journal of Agricultural and Food Industrial Organization 2 (2004): article 2. }~ The seed, and its improvements, is proprietary to the vendor in this model. It is not supplied in a form or with the rights to further improve locally and independently. Because of the critique of innovation in agriculture as part of the process of globalization and industrialization, of environmental degradation, and of consumer exploitation, the political forces that would have been most likely to support public-sector investment in agricultural innovation are in opposition to such investments. The result has not been retardation of biotechnological innovation ,{[pg 336]}, in agriculture, but its increasing privatization: primarily in the United States and now increasingly in Latin America, whose role in global agricultural production is growing. +={Pringle, Peter;privatization:agricultural biotechnologies+2;proprietary rights:agricultural biotechnologies+2;technology:agricultural+16} + +Private-sector investment, in turn, operates within a system of patents and other breeders' exclusive rights, whose general theoretical limitations are discussed in chapter 2. In agriculture, this has two distinct but mutually reinforcing implications. The first is that, while private-sector innovation has indeed accounted for most genetically engineered crops in the developing world, research aimed at improving agricultural production in the neediest places has not been significantly pursued by the major private-sector firms. A sector based on expectation of sales of products embedding its patents will not focus its research where human welfare will be most enhanced. It will focus where human welfare can best be expressed in monetary terms. The poor are systematically underserved by such a system. It is intended to elicit investments in research in directions that investors believe will result in outputs that serve the needs of those with the highest willingness and ability to pay for their outputs. The second is that even where the products of innovation can, as a matter of biological characteristics, be taken as inputs into local research and development--by farmers or by national agricultural research systems--the international system of patents and plant breeders' rights enforcement makes it illegal to do so without a license. This again retards the ability of poor countries and their farmers and research institutes to conduct research into local adaptations of improved crops. + +The central question raised by the increasing privatization of agricultural biotechnology over the past twenty years is: What can be done to employ commons-based strategies to provide a foundation for research that will be focused on the food security of developing world populations? Is there a way of managing innovation in this sector so that it will not be heavily weighted in favor of populations with a higher ability to pay, and so that its outputs allow farmers and national research efforts to improve and adapt to highly variable local agroecological environments? The continued presence of the public-sector research infrastructure--including the international and national research centers, universities, and NGOs dedicated to the problem of food security--and the potential of harnessing individual farmers and scientists to cooperative development of open biological innovation for agriculture suggest that commons-based paths for development in the area of food security and agricultural innovation are indeed feasible. + +First, some of the largest and most rapidly developing nations that still ,{[pg 337]}, have large poor populations--most prominently, China, India, and Brazil-- can achieve significant advances through their own national agricultural research systems. Their research can, in turn, provide a platform for further innovation and adaptation by projects in poorer national systems, as well as in nongovernmental public and peer-production efforts. In this regard, China seems to be leading the way. The first rice genome to be sequenced was japonica, apparently sequenced in 2000 by scientists at Monsanto, but not published. The second, an independent and published sequence of japonica, was sequenced by scientists at Syngenta, and published as the first published rice genome sequence in Science in April 2002. To protect its proprietary interests, Syngenta entered a special agreement with Science, which permitted the authors not to deposit the genomic information into the public Genbank maintained by the National Institutes of Health in the United States.~{ Elliot Marshall, "A Deal for the Rice Genome," Science 296 (April 2002): 34. }~ Depositing the information in GenBank makes it immediately available for other scientists to work with freely. All the major scientific publications require that such information be deposited and made publicly available as a standard condition of publication, but Science waved this requirement for the Syngenta japonica sequence. The same issue of Science, however, carried a similar publication, the sequence of Oryza sativa L.ssp. indica, the most widely cultivated subspecies in China. This was sequenced by a public Chinese effort, and its outputs were immediately deposited in GenBank. The simultaneous publication of the rice genome by a major private firm and a Chinese public effort was the first public exposure to the enormous advances that China's public sector has made in agricultural biotechnology, and its focus first and foremost on improving Chinese agriculture. While its investments are still an order of magnitude smaller than those of public and private sectors in the developed countries, China has been reported as the source of more than half of all expenditures in the developing world.~{ Jikun Huang et al., "Plant Biotechnology in China," Science 295 (2002): 674. }~ China's longest experience with GM agriculture is with Bt cotton, which was introduced in 1997. By 2000, 20 percent of China's cotton acreage was sown to Bt cotton. One study showed that the average acreage of a farm was less than 0.5 hectare of cotton, and the trait that was most valuable to them was Bt cotton's reduced pesticide needs. Those who adopted Bt cotton used less pesticide, reducing labor for pest control and the pesticide cost per kilogram of cotton produced. This allowed an average cost savings of 28 percent. Another effect suggested by survey data--which, if confirmed over time, would be very important as a matter of public health, but also to the political economy of the agricultural biotechnology debate--is that farmers ,{[pg 338]}, who do not use Bt cotton are four times as likely to report symptoms of a degree of toxic exposure following application of pesticides than farmers who did adopt Bt cotton.~{ Huang et al., "Plant Biotechnology." }~ The point is not, of course, to sing the praises of GM cotton or the Chinese research system. China's efforts offer an example of how the larger national research systems can provide an anchor for agricultural research, providing solutions both for their own populations, and, by making the products of their research publicly and freely available, offer a foundation for the work of others. +={Bt cotton;Chinese agricultural research;Syngenta} + +Alongside the national efforts in developing nations, there are two major paths for commons-based research and development in agriculture that could serve the developing world more generally. The first is based on existing research institutes and programs cooperating to build a commons-based system, cleared of the barriers of patents and breeders' rights, outside and alongside the proprietary system. The second is based on the kind of loose affiliation of university scientists, nongovernmental organizations, and individuals that we saw play such a significant role in the development of free and open-source software. The most promising current efforts in the former vein are the PIPRA (Public Intellectual Property for Agriculture) coalition of public-sector universities in the United States, and, if it delivers on its theoretical promises, the Generation Challenge Program led by CGIAR (the Consultative Group on International Agricultural Research). The most promising model of the latter, and probably the most ambitious commons-based project for biological innovation currently contemplated, is BIOS (Biological Innovation for an Open Society). +={PIPRA (Public Intellectual Property for Agriculture)+6;collaborative authorship:among universities+6;communication:university alliances+6;proprietary rights:university alliances+6;university alliances+6;licensing:agricultural biotechnologies+10;proprietary rights:agricultural biotechnologies+10} + +PIPRA is a collaboration effort among public-sector universities and agricultural research institutes in the United States, aimed at managing their rights portfolio in a way that will give their own and other researchers freedom to operate in an institutional ecology increasingly populated by patents and other rights that make work difficult. The basic thesis and underlying problem that led to PIPRA's founding were expressed in an article in Science coauthored by fourteen university presidents.~{ Richard Atkinson et al., "Public Sector Collaboration for Agricultural IP Management," Science 301 (2003): 174. }~ They underscored the centrality of public-sector, land-grant university-based research to American agriculture, and the shift over the last twenty-five years toward increased use of intellectual property rules to cover basic discoveries and tools necessary for agricultural innovation. These strategies have been adopted by both commercial firms and, increasingly, by public-sector universities as the primary mechanism for technology transfer from the scientific institute to the commercializing firms. The problem they saw was that in agricultural research, ,{[pg 339]}, innovation was incremental. It relies on access to existing germplasm and crop varieties that, with each generation of innovation, brought with them an ever-increasing set of intellectual property claims that had to be licensed in order to obtain permission to innovate further. The universities decided to use the power that ownership over roughly 24 percent of the patents in agricultural biotechnology innovations provides them as a lever with which to unravel the patent thickets and to reduce the barriers to research that they increasingly found themselves dealing with. The main story, one might say the "founding myth" of PIPRA, was the story of golden rice. Golden rice is a variety of rice that was engineered to provide dietary vitamin A. It was developed with the hope that it could introduce vitamin A supplement to populations in which vitamin A deficiency causes roughly 500,000 cases of blindness a year and contributes to more than 2 million deaths a year. However, when it came to translating the research into deliverable plants, the developers encountered more than seventy patents in a number of countries and six materials transfer agreements that restricted the work and delayed it substantially. PIPRA was launched as an effort of public-sector universities to cooperate in achieving two core goals that would respond to this type of barrier--preserving the right to pursue applications to subsistence crops and other developing-world-related crops, and preserving their own freedom to operate vis-a-vis each other's patent portfolios. +={golden rice} + +The basic insight of PIPRA, which can serve as a model for university alliances in the context of the development of medicines as well as agriculture, is that universities are not profit-seeking enterprises, and university scientists are not primarily driven by a profit motive. In a system that offers opportunities for academic and business tracks for people with similar basic skills, academia tends to attract those who are more driven by nonmonetary motivations. While universities have invested a good deal of time and money since the Bayh-Dole Act of 1980 permitted and indeed encouraged them to patent innovations developed with public funding, patent and other exclusive-rights-based revenues have not generally emerged as an important part of the revenue scheme of universities. As table 9.2 shows, except for one or two outliers, patent revenues have been all but negligible in university budgets.~{ This table is a slightly expanded version of one originally published in Yochai Benkler, "Commons Based Strategies and the Problems of Patents," Science 305 (2004): 1110. }~ This fact makes it fiscally feasible for universities to use their patent portfolios to maximize the global social benefit of their research, rather than trying to maximize patent revenue. In particular, universities can aim to include provisions in their technology licensing agreements that are aimed at the dual goals of (a) delivering products embedding their innovations ,{[pg 340]}, to developing nations at reasonable prices and (b) providing researchers and plant breeders the freedom to operate that would allow them to research, develop, and ultimately produce crops that would improve food security in the developing world. + +% end of paragraph which occurs on page 341 apended above table + +!_ Table 9.2: Selected University Gross Revenues and Patent Licensing Revenues + +table{~h c6; 28; 14; 14; 14; 14; 14; + +. +Total Revenues (millions) +Licensing & Royalties (mil.) +Licensing & Royalties (% of total) +Gov. Grants & Contracts (mil.) +Gov. Grants & Contracts (% of total) + +All universities +$227,000 +$1270 +0.56% +$31,430 +13.85% + +University of Columbia +$2,074 +$178.4 $100-120a +8.6% 4.9-5.9% +$532 +25.65% + +University of California +$14,166 +$81.3 $55(net)b +0.57% 0.39% +$2372 +16.74% + +Stanford University +$3,475 +$43.3 $36.8c +1.25% 1.06% +$860 +24.75% + +Florida State +$2,646 +$35.6 +1.35% +$238 +8.99% + +University of Wisconsin Madison +$1,696 +$32 +1.89% +$417.4 +24.61% + +University of Minnesota +$1,237 +$38.7 +3.12% +$323.5 +26.15% + +Harvard +$2,473 +$47.9 +1.94% +$416 $548.7d +16.82% 22.19% + +Cal Tech +$531 +$26.7e $15.7f +5.02% 2.95% +$268 +50.47% + +}table + +Sources: Aggregate revenues: U.S. Dept. of Education, National Center for Education Statistics, Enrollment in Postsecondary Institutions, Fall 2001, and Financial Statistics, Fiscal Year 2001 (2003), Table F; Association of University Technology Management, Annual Survey Summary FY 2002 (AUTM 2003), Table S-12. Individual institutions: publicly available annual reports of each university and/or its technology transfer office for FY 2003. + +group{ + +Notes: + +a. Large ambiguity results because technology transfer office reports increased +revenues for yearend 2003 as $178M without reporting expenses; University +Annual Report reports licensing revenue with all "revenue from other +educational and research activities," and reports a 10 percent decline in this +category, "reflecting an anticipated decline in royalty and license income" +from the $133M for the previous year-end, 2002. The table reflects an assumed +net contribution to university revenues between $100-120M (the entire decline +in the category due to royalty/royalties decreased proportionately with the +category). + +b. University of California Annual Report of the Office of Technology Transfer +is more transparent than most in providing expenses--both net legal expenses +and tech transfer direct operating expenses, which allows a clear separation of +net revenues from technology transfer activities. + +c. Minus direct expenses, not including expenses for unlicensed inventions. + +d. Federal- and nonfederal-sponsored research. + +e. Almost half of this amount is in income from a single Initial Public +Offering, and therefore does not represent a recurring source of licensing +revenue. + +f. Technology transfer gross revenue minus the one-time event of an initial +public offering of LiquidMetal Technologies. + +}group + +% ,{[pg 341]}, + +While PIPRA shows an avenue for collaboration among universities in the public interest, it is an avenue that does not specifically rely on, or benefit in great measure from, the information networks or the networked information economy. It continues to rely on the traditional model of publicly funded research. More explicit in its effort to leverage the cost savings made possible by networked information systems is the Generation Challenge Program (GCP). The GCP is an effort to bring the CGIAR into the biotechnology sphere, carefully, given the political resistance to genetically modified foods, and quickly, given the already relatively late start that the international research centers have had in this area. Its stated emphasis is on building an architecture of innovation, or network of research relationships, that will provide low-cost techniques for the basic contemporary technologies of agricultural research. The program has five primary foci, but the basic thrust is to generate improvements both in basic genomics science and in breeding and farmer education, in both cases for developing world agriculture. One early focus would be on building a communications system that allows participating institutions and scientists to move information efficiently and utilize computational resources to pursue research. There are hundreds of thousands of samples of germplasm, from "landrace" (that is, locally agriculturally developed) and wild varieties to modern varieties, located in databases around the world in international, national, and academic institutions. There are tremendous high-capacity computation resources in some of the most advanced research institutes, but not in many of the national and international programs. One of the major goals articulated for the GCP is to develop Web-based interfaces to share these data and computational resources. Another is to provide a platform for sharing new questions and directions of research among participants. The work in this network will, in turn, rely on materials that have proprietary interests attached to them, and will produce outputs that could have proprietary interests attached to them as well. Just like the universities, the GCP institutes (national, international, and nonprofit) are looking for an approach aimed to secure open access to research materials and tools and to provide humanitarian access to its products, particularly for subsistence crop development and use. As of this writing, however, the GCP is still in a formative stage, more an aspiration than ,{[pg 342]}, a working model. Whether it will succeed in overcoming the political constraints placed on the CGIAR as well as the relative latecomer status of the international public efforts to this area of work remains to be seen. But the elements of the GCP certainly exhibit an understanding of the possibilities presented by commons-based networked collaboration, and an ambition to both build upon them and contribute to their development. +={CGIAR's GCP program;GCP (Generation Challenge Program);Generation Challenge Program (GCP)} + +The most ambitious effort to create a commons-based framework for biological innovation in this field is BIOS. BIOS is an initiative of CAMBIA (Center for the Application of Molecular Biology to International Agriculture), a nonprofit agricultural research institute based in Australia, which was founded and is directed by Richard Jefferson, a pioneer in plant biotechnology. BIOS is based on the observation that much of contemporary agricultural research depends on access to tools and enabling technologies-- such as mechanisms to identify genes or for transferring them into target plants. When these tools are appropriated by a small number of firms and available only as part of capital-intensive production techniques, they cannot serve as the basis for innovation at the local level or for research organized on nonproprietary models. One of the core insights driving the BIOS initiative is the recognition that when a subset of necessary tools is available in the public domain, but other critical tools are not, the owners of those tools appropriate the full benefits of public domain innovation without at the same time changing the basic structural barriers to use of the proprietary technology. To overcome these problems, the BIOS initiative includes both a strong informatics component and a fairly ambitious "copyleft"-like model (similar to the GPL described in chapter 3) of licensing CAMBIA's basic tools and those of other members of the BIOS initiative. The informatics component builds on a patent database that has been developed by CAMBIA for a number of years, and whose ambition is to provide as complete as possible a dataset of who owns what tools, what the contours of ownership are, and by implication, who needs to be negotiated with and where research paths might emerge that are not yet appropriated and therefore may be open to unrestricted innovation. +={Jefferson, Richard;BIOS initiative+2;CAMBIA research institute+2;copyleft+1} + +The licensing or pooling component is more proactive, and is likely the most significant of the project. BIOS is setting up a licensing and pooling arrangement, "primed" by CAMBIA's own significant innovations in tools, which are licensed to all of the initiative's participants on a free model, with grant-back provisions that perform an openness-binding function similar to copyleft.~{ Wim Broothaertz et al., "Gene Transfer to Plants by Diverse Species of Bacteria," Nature 433 (2005): 629. }~ In coarse terms, this means that anyone who builds upon the ,{[pg 343]}, contributions of others must contribute improvements back to the other participants. One aspect of this model is that it does not assume that all research comes from academic institutions or from traditional governmentfunded, nongovernmental, or intergovernmental research institutes. It tries to create a framework that, like the open-source development community, engages commercial and noncommercial, public and private, organized and individual participants into a cooperative research network. The platform for this collaboration is "BioForge," styled after Sourceforge, one of the major free and open-source software development platforms. The commitment to engage many different innovators is most clearly seen in the efforts of BIOS to include major international commercial providers and local potential commercial breeders alongside the more likely targets of a commons-based initiative. Central to this move is the belief that in agricultural science, the basic tools can, although this may be hard, be separated from specific applications or products. All actors, including the commercial ones, therefore have an interest in the open and efficient development of tools, leaving competition and profit making for the market in applications. At the other end of the spectrum, BIOS's focus on making tools freely available is built on the proposition that innovation for food security involves more than biotechnology alone. It involves environmental management, locale-specific adaptations, and social and economic adoption in forms that are locally and internally sustainable, as opposed to dependent on a constant inflow of commoditized seed and other inputs. The range of participants is, then, much wider than envisioned by PIPRA or the GCP. It ranges from multinational corporations through academic scientists, to farmers and local associations, pooling their efforts in a communications platform and institutional model that is very similar to the way in which the GNU/Linux operating system has been developed. As of this writing, the BIOS project is still in its early infancy, and cannot be evaluated by its outputs. However, its structure offers the crispest example of the extent to which the peer-production model in particular, and commons-based production more generally, can be transposed into other areas of innovation at the very heart of what makes for human development--the ability to feed oneself adequately. +={BioForge} + +PIPRA and the BIOS initiative are the most salient examples of, and the most significant first steps in the development of commons-based strategies to achieve food security. Their vitality and necessity challenge the conventional wisdom that ever-increasing intellectual property rights are necessary to secure greater investment in research, or that the adoption of proprietary ,{[pg 344]}, rights is benign. Increasing appropriation of basic tools and enabling technologies creates barriers to entry for innovators--public-sector, nonprofit organizations, and the local farmers themselves--concerned with feeding those who cannot signal with their dollars that they are in need. The emergence of commons-based techniques--particularly, of an open innovation platform that can incorporate farmers and local agronomists from around the world into the development and feedback process through networked collaboration platforms--promises the most likely avenue to achieve research oriented toward increased food security in the developing world. It promises a mechanism of development that will not increase the relative weight and control of a small number of commercial firms that specialize in agricultural production. It will instead release the products of innovation into a selfbinding commons--one that is institutionally designed to defend itself against appropriation. It promises an iterative collaboration platform that would be able to collect environmental and local feedback in the way that a free software development project collects bug reports--through a continuous process of networked conversation among the user-innovators themselves. In combination with public investments from national governments in the developing world, from the developed world, and from more traditional international research centers, agricultural research for food security may be on a path of development toward constructing a sustainable commons-based innovation ecology alongside the proprietary system. Whether it follows this path will be partly a function of the engagement of the actors themselves, but partly a function of the extent to which the international intellectual property/trade system will refrain from raising obstacles to the emergence of these commons-based efforts. + +3~ Access to Medicines: Commons-Based Strategies for Biomedical Research +={access:to medicine+14;biomedical research, commons-based+14;commons, production through:see peer production commons-based research|medical and pharmaceutical innovation+14;development, commons-based:medical and pharmaceutical innovation+14;drugs, commons-based research on+14;global development:medical and pharmaceutical innovation+14;medicines, commons-based research on+14;pharmaceuticals, commons-based research on+14;research, commons-based:medical and pharmaceutical innovation+14} + +Nothing has played a more important role in exposing the systematic problems that the international trade and patent system presents for human development than access to medicines for HIV/AIDS. This is so for a number of reasons. First, HIV/AIDS has reached pandemic proportions. One quarter of all deaths from infectious and parasitic diseases in 2002 were caused by AIDS, accounting for almost 5 percent of all deaths in the world that year.~{ These numbers and others in this paragraph are taken from the 2004 WHO World Health Report, Annex Table 2. }~ Second, it is a new condition, unknown to medicine a mere twenty-five years ago, is communicable, and in principle is of a type--infectious diseases--that we have come to see modern medicine as capable of solving. ,{[pg 345]}, This makes it different from much bigger killers--like the many cancers and forms of heart disease--which account for about nine times as many deaths globally. Third, it has a significant presence in the advanced economies. Because it was perceived there as a disease primarily affecting the gay community, it had a strong and well-defined political lobby and high cultural salience. Fourth, and finally, there have indeed been enormous advances in the development of medicines for HIV/AIDS. Mortality for patients who are treated is therefore much lower than for those who are not. These treatments are new, under patent, and enormously expensive. As a result, death-- as opposed to chronic illness--has become overwhelmingly a consequence of poverty. More than 75 percent of deaths caused by AIDS in 2002 were in Africa. HIV/AIDS drugs offer a vivid example of an instance where drugs exist for a disease but cannot be afforded in the poorest countries. They represent, however, only a part, and perhaps the smaller part, of the limitations that a patent-based drug development system presents for providing medicines to the poor. No less important is the absence of a market pull for drugs aimed at diseases that are solely or primarily developing-world diseases--like drugs for tropical diseases, or the still-elusive malaria vaccine. +={HIV/AIDS} + +To the extent that the United States and Europe are creating a global innovation system that relies on patents and market incentives as its primary driver of research and innovation, these wealthy democracies are, of necessity, choosing to neglect diseases that disproportionately affect the poor. There is nothing evil about a pharmaceutical company that is responsible to its shareholders deciding to invest where it expects to reap profit. It is not immoral for a firm to invest its research funds in finding a drug to treat acne, which might affect 20 million teenagers in the United States, rather than a drug that will cure African sleeping sickness, which affects 66 million Africans and kills about fifty thousand every year. If there is immorality to be found, it is in the legal and policy system that relies heavily on the patent system to induce drug discovery and development, and does not adequately fund and organize biomedical research to solve the problems that cannot be solved by relying solely on market pull. However, the politics of public response to patents for drugs are similar in structure to those that have to do with agricultural biotechnology exclusive rights. There is a very strong patentbased industry--much stronger than in any other patent-sensitive area. The rents from strong patents are enormous, and a rational monopolist will pay up to the value of its rents to maintain and improve its monopoly. The primary potential political push-back in the pharmaceutical area, which does ,{[pg 346]}, not exist in the agricultural innovation area, is that the exorbitant costs of drugs developed under this system is hurting even the well-endowed purses of developed-world populations. The policy battles in the United States and throughout the developed world around drug cost containment may yet result in a sufficient loosening of the patent constraints to deliver positive side effects for the developing world. However, they may also work in the opposite direction. The unwillingness of the wealthy populations in the developed world to pay high rents for drugs retards the most immediate path to lower-cost drugs in the developing world--simple subsidy of below-cost sales in poor countries cross-subsidized by above-cost rents in wealthy countries. +={commercial model of communication:medical innovation and;industrial model of communication:medical innovation and;institutional ecology of digital environment:medical innovation and;monopoly:medical research and innovation;policy:pharmaceutical innovation;proprietary rights:medical and pharmaceutical innovation;traditional model of communication:medical innovation and} + +The industrial structure of biomedical research and pharmaceutical development is different from that of agricultural science in ways that still leave a substantial potential role for commons-based strategies. However, these would be differently organized and aligned than in agriculture. First, while governments play an enormous role in funding basic biomedical science, there are no real equivalents of the national and international agricultural research institutes. In other words, there are few public-sector laboratories that actually produce finished drugs for delivery in the developing world, on the model of the International Rice Research Institute or one of the national agricultural research systems. On the other hand, there is a thriving generics industry, based in both advanced and developing economies, that stands ready to produce drugs once these are researched. The primary constraint on harnessing its capacity for low-cost drug production and delivery for poorer nations is the international intellectual property system. The other major difference is that, unlike with software, scientific publication, or farmers in agriculture, there is no existing framework for individuals to participate in research and development on drugs and treatments. The primary potential source of nongovernmental investment of effort and thought into biomedical research and development are universities as institutions and scientists, if they choose to organize themselves into effective peer-production communities. + +Universities and scientists have two complementary paths open to them to pursue commons-based strategies to provide improved research on the relatively neglected diseases of the poor and improved access to existing drugs that are available in the developed world but unaffordable in the developing. The first involves leveraging existing university patent portfolios--much as the universities allied in PIPRA are exploring and as CAMBIA is doing more ,{[pg 347]}, aggressively. The second involves work in an entirely new model--constructing collaboration platforms to allow scientists to engage in peer production, cross-cutting the traditional grant-funded lab, and aiming toward research into diseases that do not exercise a market pull on the biomedical research system in the advanced economies. +={collaborative authorship:among universities+5;communication:university alliances+5;information production, market-based:universities as+3;market-based information producers:universities as+3;nonmarket information producers:universities as+3;sharing:university patents+5;university alliances+5} + +/{Leveraging University Patents}/. In February 2001, the humanitarian organization Doctors Without Borders (also known as Medecins Sans Frontieres, or MSF) asked Yale University, which held the key South African patent on stavudine--one of the drugs then most commonly used in combination therapies--for permission to use generic versions in a pilot AIDS treatment program. At the time, the licensed version of the drug, sold by Bristol-MyersSquibb (BMS), cost $1,600 per patient per year. A generic version, manufactured in India, was available for $47 per patient per year. At that point in history, thirty-nine drug manufacturers were suing the South African government to strike down a law permitting importation of generics in a health crisis, and no drug company had yet made concessions on pricing in developing nations. Within weeks of receiving MSF's request, Yale negotiated with BMS to secure the sale of stavudine for fifty-five dollars a year in South Africa. Yale, the University of California at Berkeley, and other universities have, in the years since, entered into similar ad hoc agreements with regard to developing-world applications or distribution of drugs that depend on their patented technologies. These successes provide a template for a much broader realignment of how universities use their patent portfolios to alleviate the problems of access to medicines in developing nations. +={Doctors Without Borders;Medecins Sans Frontieres;MSF (Medecins San Frontieres)} + +We have already seen in table 9.2 that while universities own a substantial and increasing number of patents, they do not fiscally depend in any significant way on patent revenue. These play a very small part in the overall scheme of revenues. This makes it practical for universities to reconsider how they use their patents and to reorient toward using them to maximize their beneficial effects on equitable access to pharmaceuticals developed in the advanced economies. Two distinct moves are necessary to harness publicly funded university research toward building an information commons that is easily accessible for global redistribution. The first is internal to the university process itself. The second has to do with the interface between the university and patent-dependent and similar exclusive-rights-dependent market actors. + +Universities are internally conflicted about their public and market goals. ,{[pg 348]}, Dating back to the passage of the Bayh-Dole Act, universities have increased their patenting practices for the products of publicly funded research. Technology transfer offices that have been set up to facilitate this practice are, in many cases, measured by the number of patent applications, grants, and dollars they bring in to the university. These metrics for measuring the success of these offices tend to make them function, and understand their role, in a way that is parallel to exclusive-rights-dependent market actors, instead of as public-sector, publicly funded, and publicly minded institutions. A technology transfer officer who has successfully provided a royalty-free license to a nonprofit concerned with developing nations has no obvious metric in which to record and report the magnitude of her success (saving X millions of lives or displacing Y misery), unlike her colleague who can readily report X millions of dollars from a market-oriented license, or even merely Y dozens of patents filed. Universities must consider more explicitly their special role in the global information and knowledge production system. If they recommit to a role focused on serving the improvement of the lot of humanity, rather than maximization of their revenue stream, they should adapt their patenting and licensing practices appropriately. In particular, it will be important following such a rededication to redefine the role of technology transfer offices in terms of lives saved, quality-of-life measures improved, or similar substantive measures that reflect the mission of university research, rather than the present metrics borrowed from the very different world of patent-dependent market production. While the internal process is culturally and politically difficult, it is not, in fact, analytically or technically complex. Universities have, for a very long time, seen themselves primarily as dedicated to the advancement of knowledge and human welfare through basic research, reasoned inquiry, and education. The long-standing social traditions of science have always stood apart from market incentives and orientations. The problem is therefore one of reawakening slightly dormant cultural norms and understandings, rather than creating new ones in the teeth of long-standing contrary traditions. The problem should be substantially simpler than, say, persuading companies that traditionally thought of their innovation in terms of patents granted or royalties claimed, as some technology industry participants have, to adopt free software strategies. +={distribution of information:university-based innovation+2} + +If universities do make the change, then the more complex problem will remain: designing an institutional interface between universities and the pharmaceutical industry that will provide sustainable significant benefits for developing-world distribution of drugs and for research opportunities into ,{[pg 349]}, developing-world diseases. As we already saw in the context of agriculture, patents create two discrete kinds of barriers: The first is on distribution, because of the monopoly pricing power they purposefully confer on their owners. The second is on research that requires access to tools, enabling technologies, data, and materials generated by the developed-world research process, and that could be useful to research on developing-world diseases. Universities working alone will not provide access to drugs. While universities perform more than half of the basic scientific research in the United States, this effort means that more than 93 percent of university research expenditures go to basic and applied science, leaving less than 7 percent for development--the final research necessary to convert a scientific project into a usable product.~{ National Science Foundation, Division of Science Resource Statistics, Special Report: National Patterns of Research and Development Resources: 2003 NSF 05-308 (Arlington, VA: NSF, 2005), table 1. }~ Universities therefore cannot simply release their own patents and expect treatments based on their technologies to become accessible. Instead, a change is necessary in licensing practices that takes an approach similar to a synthesis of the general public license (GPL), of BIOS's licensing approach, and PIPRA. + +Universities working together can cooperate to include in their licenses provisions that would secure freedom to operate for anyone conducting research into developing-world diseases or production for distribution in poorer nations. The institutional details of such a licensing regime are relatively complex and arcane, but efforts are, in fact, under way to develop such licenses and to have them adopted by universities.~{ The detailed analysis can be found in Amy Kapzcynzki et al., "Addressing Global Health Inequities: An Open Licensing Paradigm for Public Sector Inventions," Berkeley Journal of Law and Technology (Spring 2005). 24. See Jean Lanjouw, "A New Global Patent Regime for Diseases: U.S. and International Legal Issues," Harvard Journal of Law & Technology 16 (2002). 25. S. Maurer, A. Sali, and A. Rai, "Finding Cures for Tropical Disease: Is Open Source the Answer?" Public Library of Science: Medicine 1, no. 3 (December 2004): e56. }~ What is important here, for understanding the potential, is the basic idea and framework. In exchange for access to the university's patents, the pharmaceutical licensees will agree not to assert any of their own rights in drugs that require a university license against generics manufacturers who make generic versions of those drugs purely for distribution in low- and middle-income countries. An Indian or American generics manufacturer could produce patented drugs that relied on university patents and were licensed under this kind of an equitable-access license, as long as it distributed its products solely in poor countries. A government or nonprofit research institute operating in South Africa could work with patented research tools without concern that doing so would violate the patents. However, neither could then import the products of their production or research into the developed world without violating the patents of both the university and the drug company. The licenses would create a mechanism for redistribution of drug products and research tools from the developed economies to the developing. It would do so without requiring the kind of regulatory changes advocated by others, such as ,{[pg 350]}, Jean Lanjouw, who have advocated policy changes aimed similarly to achieve differential pricing in the developing and developed worlds.24 Because this redistribution could be achieved by universities acting through licensing, instead of through changes in law, it offers a more feasible political path for achieving the desired result. Such action by universities would, of course, not solve all the problems of access to medicines. First, not all health-related products are based on university research. Second, patents do not account for all, or perhaps even most, of the reason that patients in poor nations are not treated. A lack of delivery infrastructure, public-health monitoring and care, and stable conditions to implement disease-control policy likely weigh more heavily. Nonetheless, there are successful and stable government and nonprofit programs that could treat hundreds of thousands or millions of patients more than they do now, if the cost of drugs were lower. Achieving improved access for those patients seems a goal worthy of pursuit, even if it is no magic bullet to solve all the illnesses of poverty. + +/{Nonprofit Research}/. Even a successful campaign to change the licensing practices of universities in order to achieve inexpensive access to the products of pharmaceutical research would leave the problem of research into diseases that affect primarily the poor. This is because, unless universities themselves undertake the development process, the patent-based pharmaceuticals have no reason to. The "simple" answer to this problem is more funding from the public sector or foundations for both basic research and development. This avenue has made some progress, and some foundations--particularly, in recent years, the Gates Foundation--have invested enormous amounts of money in searching for cures and improving basic public-health conditions of disease in Africa and elsewhere in the developing world. It has received a particularly interesting boost since 2000, with the founding of the Institute for One World Health, a nonprofit pharmaceutical dedicated to research and development specifically into developing-world diseases. The basic model of One World Health begins by taking contributions of drug leads that are deemed unprofitable by the pharmaceutical industry--from both universities and pharmaceutical companies. The firms have no reason not to contribute their patents on leads purely for purposes they do not intend to pursue. The group then relies on foundation and public-sector funding to perform synthesis, preclinical and clinical trials, in collaboration with research centers in the United States, India, Bangladesh, and Thailand, and when the time comes around for manufacturing, the institute collaborates with manufacturers ,{[pg 351]}, in developing nations to produce low-cost instances of the drugs, and with government and NGO public-health providers to organize distribution. This model is new, and has not yet had enough time to mature and provide measurable success. However, it is promising. +={Institute for One World Health;One World Health;nonprofit medical research} + +/{Peer Production of Drug Research and Development}/. Scientists, scientists-intraining, and to some extent, nonscientists can complement university licensing practices and formally organized nonprofit efforts as a third component of the ecology of commons-based producers. The initial response to the notion that peer production can be used for drug development is that the process is too complex, expensive, and time consuming to succumb to commons-based strategies. This may, at the end of the day, prove true. However, this was also thought of complex software projects or of supercomputing, until free software and distributed computing projects like SETI@Home and Folding@Home came along and proved them wrong. The basic point is to see how distributed nonmarket efforts are organized, and to see how the scientific production process can be broken up to fit a peer-production model. +={allocating excess capacity+2;capacity:sharing+2;excess capacity, sharing+2;sharing:excess capacity+2;peer production:drug research and development;reallocating excess capacity+2} + +First, anything that can be done through computer modeling or data analysis can, in principle, be done on a peer-production basis. Increasing portions of biomedical research are done today through modeling, computer simulation, and data analysis of the large and growing databases, including a wide range of genetic, chemical, and biological information. As more of the process of drug discovery of potential leads can be done by modeling and computational analysis, more can be organized for peer production. The relevant model here is open bioinformatics. Bioinformatics generally is the practice of pursuing solutions to biological questions using mathematics and information technology. Open bioinformatics is a movement within bioinformatics aimed at developing the tools in an open-source model, and in providing access to the tools and the outputs on a free and open basis. Projects like these include the Ensmbl Genome Browser, operated by the European Bioinformatics Institute and the Sanger Centre, or the National Center for Biotechnology Information (NCBI), both of which use computer databases to provide access to data and to run various searches on combinations, patterns, and so forth, in the data. In both cases, access to the data and the value-adding functionalities are free. The software too is developed on a free software model. These, in turn, are complemented by database policies like those of the International HapMap Project, an effort to map ,{[pg 352]}, common variations in the human genome, whose participants have committed to releasing all the data they collect freely into the public domain. The economics of this portion of research into drugs are very similar to the economics of software and computation. The models are just software. Some models will be able to run on the ever-more-powerful basic machines that the scientists themselves use. However, anything that requires serious computation could be modeled for distributed computing. This would allow projects to harness volunteer computation resources, like Folding@Home, Genome@Home, or FightAIDS@Home--sites that already harness the computing power of hundreds of thousands of users to attack biomedical science questions. This stage of the process is the one that most directly can be translated into a peer-production model, and, in fact, there have been proposals, such as the Tropical Disease Initiative proposed by Maurer, Sali, and Rai.~{ 25 }~ +={bioinfomatics;HapMap Project;International HapMap Project} + +Second, and more complex, is the problem of building wet-lab science on a peer-production basis. Some efforts would have to focus on the basic science. Some might be at the phase of optimization and chemical synthesis. Some, even more ambitiously, would be at the stage of preclinical animal trials and even clinical trials. The wet lab seems to present an insurmountable obstacle for a serious role for peer production in biomedical science. Nevertheless, it is not clear that it is actually any more so than it might have seemed for the development of an operating system, or a supercomputer, before these were achieved. Laboratories have two immensely valuable resources that may be capable of being harnessed to peer production. Most important by far are postdoctoral fellows. These are the same characters who populate so many free software projects, only geeks of a different feather. They are at a similar life stage. They have the same hectic, overworked lives, and yet the same capacity to work one more hour on something else, something interesting, exciting, or career enhancing, like a special grant announced by the government. The other resources that have overcapacity might be thought of as petri dishes, or if that sounds too quaint and oldfashioned, polymerase chain reaction (PCR) machines or electrophoresis equipment. The point is simple. Laboratory funding currently is silo-based. Each lab is usually funded to have all the equipment it needs for run-ofthe-mill work, except for very large machines operated on time-share principles. Those machines that are redundantly provisioned in laboratories have downtime. That downtime coupled with a postdoctoral fellow in the lab is an experiment waiting to happen. If a group that is seeking to start a project ,{[pg 353]}, defines discrete modules of a common experiment, and provides a communications platform to allow people to download project modules, perform them, and upload results, it would be possible to harness the overcapacity that exists in laboratories. In principle, although this is a harder empirical question, the same could be done for other widely available laboratory materials and even animals for preclinical trials on the model of, "brother, can you spare a mouse?" One fascinating proposal and early experiment at the University of Indiana-Purdue University Indianapolis was suggested by William Scott, a chemistry professor. Scott proposed developing simple, lowcost kits for training undergraduate students in chemical synthesis, but which would use targets and molecules identified by computational biology as potential treatments for developing-world diseases as their output. With enough redundancy across different classrooms and institutions around the world, the results could be verified while screening and synthesizing a significant number of potential drugs. The undergraduate educational experience could actually contribute to new experiments, as opposed simply to synthesizing outputs that are not really needed by anyone. Clinical trials provide yet another level of complexity, because the problem of delivering consistent drug formulations for testing to physicians and patients stretches the imagination. One option would be that research centers in countries affected by the diseases in question could pick up the work at this point, and create and conduct clinical trials. These too could be coordinated across regions and countries among the clinicians administering the tests, so that accruing patients and obtaining sufficient information could be achieved more rapidly and at lower cost. As in the case of One World Health, production and regulatory approval, from this stage on, could be taken up by the generics manufacturers. In order to prevent the outputs from being appropriated at this stage, every stage in the process would require a public-domain-binding license that would prevent a manufacturer from taking the outputs and, by making small changes, patenting the ultimate drug. +={Scott, William;laboratories, peer-produced+1;wet-lab science, peer production of+1;clinical trials, peer-produced} + +This proposal about medicine is, at this stage, the most imaginary among the commons-based strategies for development suggested here. However, it is analytically consistent with them, and, in principle, should be attainable. In combination with the more traditional commons-based approaches, university research, and the nonprofit world, peer production could contribute to an innovation ecology that could overcome the systematic inability of a purely patent-based system to register and respond to the health needs of the world's poor. ,{[pg 354]}, + +3~ COMMONS-BASED STRATEGIES FOR DEVELOPMENT: CONCLUSION +={commons, production through:see peer production commons-based research+4;development, commons-based+4;proprietary rights:global welfare and research+4;research, commons-based+4;trade policy+4} + +Welfare, development, and growth outside of the core economies heavily depend on the transfer of information-embedded goods and tools, information, and knowledge from the technologically advanced economies to the developing and less-developed economies and societies around the globe. These are important partly as finished usable components of welfare. Perhaps more important, however, they are necessary as tools and platforms on which innovation, research, and development can be pursued by local actors in the developing world itself--from the free software developers of Brazil to the agricultural scientists and farmers of Southeast Asia. The primary obstacles to diffusion of these desiderata in the required direction are the institutional framework of intellectual property and trade and the political power of the patent-dependent business models in the information-exporting economies. This is not because the proprietors of information goods and tools are evil. It is because their fiduciary duty is to maximize shareholder value, and the less-developed and developing economies have little money. As rational maximizers with a legal monopoly, the patent holders restrict output and sell at higher rates. This is not a bug in the institutional system we call "intellectual property." It is a known feature that has known undesirable side effects of inefficiently restricting access to the products of innovation. In the context of vast disparities in wealth across the globe, however, this known feature does not merely lead to less than theoretically optimal use of the information. It leads to predictable increase of morbidity and mortality and to higher barriers to development. + +The rise of the networked information economy provides a new framework for thinking about how to work around the barriers that the international intellectual property regime places on development. Public-sector and other nonprofit institutions that have traditionally played an important role in development can do so with a greater degree of efficacy. Moreover, the emergence of peer production provides a model for new solutions to some of the problems of access to information and knowledge. In software and communications, these are directly available. In scientific information and some educational materials, we are beginning to see adaptations of these models to support core elements of development and learning. In food security and health, the translation process may be more difficult. In agriculture, we are seeing more immediate progress in the development of a woven ,{[pg 355]}, fabric of public-sector, academic, nonprofit, and individual innovation and learning to pursue biological innovation outside of the markets based on patents and breeders' rights. In medicine, we are still at a very early stage of organizational experiments and institutional proposals. The barriers to implementation are significant. However, there is growing awareness of the human cost of relying solely on the patent-based production system, and of the potential of commons-based strategies to alleviate these failures. + +Ideally, perhaps, the most direct way to arrive at a better system for harnessing innovation to development would pass through a new international politics of development, which would result in a better-designed international system of trade and innovation policy. There is in fact a global movement of NGOs and developing nations pursuing this goal. It is possible, however, that the politics of international trade are sufficiently bent to the purposes of incumbent industrial information economy proprietors and the governments that support them as a matter of industrial policy that the political path of formal institutional reform will fail. Certainly, the history of the TRIPS agreement and, more recently, efforts to pass new expansive treaties through the WIPO suggest this. However, one of the lessons we learn as we look at the networked information economy is that the work of governments through international treaties is not the final word on innovation and its diffusion across boundaries of wealth. The emergence of social sharing as a substantial mode of production in the networked environment offers an alternative route for individuals and nonprofit entities to take a much more substantial role in delivering actual desired outcomes independent of the formal system. Commons-based and peer production efforts may not be a cure-all. However, as we have seen in the software world, these strategies can make a big contribution to quite fundamental aspects of human welfare and development. And this is where freedom and justice coincide. +={global development+1} + +The practical freedom of individuals to act and associate freely--free from the constraints of proprietary endowment, free from the constraints of formal relations of contract or stable organizations--allows individual action in ad hoc, informal association to emerge as a new global mover. It frees the ability of people to act in response to all their motivations. In doing so, it offers a new path, alongside those of the market and formal governmental investment in public welfare, for achieving definable and significant improvements in human development throughout the world. ,{[pg 356]}, + +1~10 Chapter 10 - Social Ties: Networking Together +={norms (social)+38;regulation by social norms+38;social relations and norms+38} + +Increased practical individual autonomy has been central to my claims throughout this book. It underlies the efficiency and sustainability of nonproprietary production in the networked information economy. It underlies the improvements I describe in both freedom and justice. Many have raised concerns that this new freedom will fray social ties and fragment social relations. On this view, the new freedom is one of detached monads, a freedom to live arid, lonely lives free of the many constraining attachments that make us grounded, well-adjusted human beings. Bolstered by early sociological studies, this perspective was one of two diametrically opposed views that typified the way the Internet's effect on community, or close social relations, was portrayed in the 1990s. The other view, popular among the digerati, was that "virtual communities" would come to represent a new form of human communal existence, providing new scope for building a shared experience of human interaction. Within a few short years, however, empirical research suggests that while neither view had it completely right, it was the ,{[pg 357]}, dystopian view that got it especially wrong. The effects of the Internet on social relations are obviously complex. It is likely too soon to tell which social practices this new mode of communication will ultimately settle on. The most recent research, however, suggests that the Internet has some fairly well-defined effects on human community and intimate social relations. These effects mark neither breakdown nor transcendence, but they do represent an improvement over the world of television and telephone along most dimensions of normative concern with social relations. +={communities:virtual+9;virtual communities+9:see also social relations and norms} + +We are seeing two effects: first, and most robustly, we see a thickening of preexisting relations with friends, family, and neighbors, particularly with those who were not easily reachable in the pre-Internet-mediated environment. Parents, for example, use instant messages to communicate with their children who are in college. Friends who have moved away from each other are keeping in touch more than they did before they had e-mail, because email does not require them to coordinate a time to talk or to pay longdistance rates. However, this thickening of contacts seems to occur alongside a loosening of the hierarchical aspects of these relationships, as individuals weave their own web of supporting peer relations into the fabric of what might otherwise be stifling familial relationships. Second, we are beginning to see the emergence of greater scope for limited-purpose, loose relationships. These may not fit the ideal model of "virtual communities." They certainly do not fit a deep conception of "community" as a person's primary source of emotional context and support. They are nonetheless effective and meaningful to their participants. It appears that, as the digitally networked environment begins to displace mass media and telephones, its salient communications characteristics provide new dimensions to thicken existing social relations, while also providing new capabilities for looser and more fluid, but still meaningful social networks. A central aspect of this positive improvement in loose ties has been the technical-organizational shift from an information environment dominated by commercial mass media on a oneto-many model, which does not foster group interaction among viewers, to an information environment that both technically and as a matter of social practice enables user-centric, group-based active cooperation platforms of the kind that typify the networked information economy. This is not to say that the Internet necessarily effects all people, all social groups, and networks identically. The effects on different people in different settings and networks will likely vary, certainly in their magnitude. My purpose here, however, is ,{[pg 358]}, to respond to the concern that enhanced individual capabilities entail social fragmentation and alienation. The available data do not support that claim as a description of a broad social effect. +={communication:thickening of preexisting relations;displacement of real-world interaction;family relations, strengthening of;loose affiliations;neighborhood relations, strengthening of;networked public sphere:loose affiliations;norms (social):loose affiliations|thickening of preexisting relations;peer production:loose affiliations;preexisting relations, thickening of;public sphere:loose affiliations;regulation by social norms:loose affiliations|thickening of preexisting relations;scope of loose relationships;social relations and norms:loose affiliations|thickening of preexisting relations;supplantation of real-world interaction;thickening of preexisting relations} + +2~ FROM "VIRTUAL COMMUNITIES" TO FEAR OF DISINTEGRATION + +Angst about the fragmentation of organic deep social ties, the gemeinschaft community, the family, is hardly a creature of the Internet. In some form or another, the fear that cities, industrialization, rapid transportation, mass communications, and other accoutrements of modern industrial society are leading to alienation, breakdown of the family, and the disruption of community has been a fixed element of sociology since at least the mid-nineteenth century. Its mirror image--the search for real or imagined, more or less idealized community, "grounded" in preindustrial pastoral memory or postindustrial utopia--was often not far behind. Unsurprisingly, this patterned opposition of fear and yearning was replayed in the context of the Internet, as the transformative effect of this new medium made it a new focal point for both strands of thought. + +In the case of the Internet, the optimists preceded the pessimists. In his now-classic The Virtual Community, Howard Rheingold put it most succinctly in 1993: +={Rheingold, Howard+2} + +_1 My direct observations of online behavior around the world over the past ten years have led me to conclude that whenever CMC [computer mediated communications] technology becomes available to people anywhere, they inevitably build virtual communities with it, just as microorganisms inevitably create colonies. I suspect that one of the explanations for this phenomenon is the hunger for community that grows in the breasts of people around the world as more and more informal public spaces disappear from our real lives. I also suspect that these new media attract colonies of enthusiasts because CMC enables people to do things with each other in new ways, and to do altogether new kinds of things-- just as telegraphs, telephones, and televisions did. + +/{The Virtual Community}/ was grounded on Rheingold's own experience in the WELL (Whole Earth `Lectronic Link). The WELL was one the earliest well-developed instances of large-scale social interaction among people who started out as strangers but came to see themselves as a community. Its members eventually began to organize meetings in real space to strengthen ,{[pg 359]}, the bonds, while mostly continuing their interaction through computermediated communications. Note the structure of Rheingold's claim in this early passage. There is a hunger for community, no longer satisfied by the declining availability of physical spaces for human connection. There is a newly available medium that allows people to connect despite their physical distance. This new opportunity inevitably and automatically brings people to use its affordances--the behaviors it makes possible--to fulfill their need for human connection. Over and above this, the new medium offers new ways of communicating and new ways of doing things together, thereby enhancing what was previously possible. Others followed Rheingold over the course of the 1990s in many and various ways. The basic structure of the claim about the potential of cyberspace to forge a new domain for human connection, one that overcomes the limitations that industrial mass-mediated society places on community, was oft repeated. The basic observation that the Internet permits the emergence of new relationships that play a significant role in their participants' lives and are anchored in online communications continues to be made. As discussed below, however, much of the research suggests that the new online relationships develop in addition to, rather than instead of, physical face-to-face human interaction in community and family--which turns out to be alive and well. +={WELL (Whole Earth 'Lectronic Link)} + +It was not long before a very different set of claims emerged about the Internet. Rather than a solution to the problems that industrial society creates for family and society, the Internet was seen as increasing alienation by absorbing its users. It made them unavailable to spend time with their families. It immersed them in diversions from the real world with its real relationships. In a social-relations version of the Babel objection, it was seen as narrowing the set of shared cultural experiences to such an extent that people, for lack of a common sitcom or news show to talk about, become increasingly alienated from each other. One strand of this type of criticism questioned the value of online relationships themselves as plausible replacements for real-world human connection. Sherry Turkle, the most important early explorer of virtual identity, characterized this concern as: "is it really sensible to suggest that the way to revitalize community is to sit alone in our rooms, typing at our networked computers and filling our lives with virtual friends?"~{ Sherry Turkle, "Virtuality and Its Discontents, Searching for Community in Cyberspace," The American Prospect 7, no. 24 (1996); Sherry Turkle, Life on the Screen: Identity in the Age of the Internet (New York: Simon & Schuster, 1995). }~ Instead of investing themselves with real relationships, risking real exposure and connection, people engage in limited-purpose, lowintensity relationships. If it doesn't work out, they can always sign off, and no harm done. ,{[pg 360]}, +={alienation+2;depression+2;friendships, virtual+2;isolation+2;loneliness+2} + +Another strand of criticism focused less on the thinness, not to say vacuity, of online relations, and more on sheer time. According to this argument, the time and effort spent on the Net came at the expense of time spent with family and friends. Prominent and oft cited in this vein were two early studies. The first, entitled Internet Paradox, was led by Robert Kraut.~{ Robert Kraut et al., "Internet Paradox, A Social Technology that Reduces Social Involvement and Psychological Well Being," American Psychologist 53 (1998): 1017? 1031. }~ It was the first longitudinal study of a substantial number of users--169 users in the first year or two of their Internet use. Kraut and his collaborators found a slight, but statistically significant, correlation between increases in Internet use and (a) decreases in family communication, (b) decreases in the size of social circle, both near and far, and (c) an increase in depression and loneliness. The researchers hypothesized that use of the Internet replaces strong ties with weak ties. They ideal-typed these communications as exchanging knitting tips with participants in a knitting Listserv, or jokes with someone you would meet on a tourist information site. These trivialities, they thought, came to fill time that, in the absence of the Internet, would be spent with people with whom one has stronger ties. From a communications theory perspective, this causal explanation was more sophisticated than the more widely claimed assimilation of the Internet and television--that a computer monitor is simply one more screen to take away from the time one has to talk to real human beings.~{ A fairly typical statement of this view, quoted in a study commissioned by the Kellogg Foundation, was: "TV or other media, such as computers, are no longer a kind of `electronic hearth,' where a family will gather around and make decisions or have discussions. My position, based on our most recent studies, is that most media in the home are working against bringing families together." Christopher Lee et al., "Evaluating Information and Communications Technology: Perspective for a Balanced Approach," Report to the Kellogg Foundation (December 17, 2001), http:// www.si.umich.edu/pne/kellogg/013.html. }~ It recognized that using the Internet is fundamentally different from watching TV. It allows users to communicate with each other, rather than, like television, encouraging passive reception in a kind of "parallel play." Using a distinction between strong ties and weak ties, introduced by Mark Granovetter in what later became the social capital literature, these researchers suggested that the kind of human contact that was built around online interactions was thinner and less meaningful, so that the time spent on these relationships, on balance, weakened one's stock of social relations. +={Granovetter, Mark;Kraut, Robert;contact, online vs. physical+1;human contact, online vs. physical+1;physical contact, diminishment of+1;value of online contact;vacuity of online relations;thinness of online relations;weak ties of online relations;television:Internet use vs.+1;social capital+1} + +A second, more sensationalist release of a study followed two years later. In 2000, the Stanford Institute for the Quantitative Study of Society's "preliminary report" on Internet and society, more of a press release than a report, emphasized the finding that "the more hours people use the Internet, the less time they spend with real human beings."~{ Norman H. Nie and Lutz Ebring, "Internet and Society, A Preliminary Report," Stanford Institute for the Quantitative Study of Society, February 17, 2000, 15 (Press Release), http://www.pkp.ubc.ca/bctf/Stanford_Report.pdf. }~ The actual results were somewhat less stark than the widely reported press release. As among all Internet users, only slightly more than 8 percent reported spending less time with family; 6 percent reported spending more time with family, and 86 percent spent about the same amount of time. Similarly, 9 percent reported spending less time with friends, 4 percent spent more time, and 87 percent spent the ,{[pg 361]}, same amount of time.~{ Ibid., 42-43, tables CH-WFAM, CH-WFRN. }~ The press release probably should not have read, "social isolation increases," but instead, "Internet seems to have indeterminate, but in any event small, effects on our interaction with family and friends"--hardly the stuff of front-page news coverage.~{ See John Markoff and A. Newer, "Lonelier Crowd Emerges in Internet Study," New York Times, February 16, 2000, section A, page 1, column 1. }~ The strongest result supporting the "isolation" thesis in that study was that 27 percent of respondents who were heavy Internet users reported spending less time on the phone with friends and family. The study did not ask whether they used email instead of the phone to keep in touch with these family and friends, and whether they thought they had more or less of a connection with these friends and family as a result. Instead, as the author reported in his press release, "E-mail is a way to stay in touch, but you can't share coffee or beer with somebody on e-mail, or give them a hug" (as opposed, one supposes, to the common practice of phone hugs).~{ Nie and Ebring, "Internet and Society," 19. }~ As Amitai Etzioni noted in his biting critique of that study, the truly significant findings were that Internet users spent less time watching television and shopping. Forty-seven percent of those surveyed said that they watched less television than they used to, and that number reached 65 percent for heavy users and 27 percent for light users. Only 3 percent of those surveyed said they watched more TV. Nineteen percent of all respondents and 25 percent of those who used the Internet more than five hours a week said they shopped less in stores, while only 3 percent said they shopped more in stores. The study did not explore how people were using the time they freed by watching less television and shopping less in physical stores. It did not ask whether they used any of this newfound time to increase and strengthen their social and kin ties.~{ Amitai Etzioni, "Debating the Societal Effects of the Internet: Connecting with the World," Public Perspective 11 (May/June 2000): 42, also available at http:// www.gwu.edu/ ccps/etzioni/A273.html. }~ + +2~ A MORE POSITIVE PICTURE EMERGES OVER TIME +={social capital+13} + +The concerns represented by these early studies of the effects of Internet use on community and family seem to fall into two basic bins. The first is that sustained, more or less intimate human relations are critical to well-functioning human beings as a matter of psychological need. The claims that Internet use is associated with greater loneliness and depression map well onto the fears that human connection ground into a thin gruel of electronic bits simply will not give people the kind of human connectedness they need as social beings. The second bin of concerns falls largely within the "social capital" literature, and, like that literature itself, can be divided largely into two main subcategories. The first, following James Coleman and Mark Granovetter, focuses on the ,{[pg 362]}, economic function of social ties and the ways in which people who have social capital can be materially better off than people who lack it. The second, exemplified by Robert Putnam's work, focuses on the political aspects of engaged societies, and on the ways in which communities with high social capital--defined as social relations with people in local, stable, face-to-face interactions--will lead to better results in terms of political participation and the provisioning of local public goods, like education and community policing. For this literature, the shape of social ties, their relative strength, and who is connected to whom become more prominent features. +={Coleman, James;Granovetter, Mark;Putnum, Robert} + +There are, roughly speaking, two types of responses to these concerns. The first is empirical. In order for these concerns to be valid as applied to increasing use of Internet communications, it must be the case that Internet communications, with all of their inadequacies, come to supplant real-world human interactions, rather than simply to supplement them. Unless Internet connections actually displace direct, unmediated, human contact, there is no basis to think that using the Internet will lead to a decline in those nourishing connections we need psychologically, or in the useful connections we make socially, that are based on direct human contact with friends, family, and neighbors. The second response is theoretical. It challenges the notion that the socially embedded individual is a fixed entity with unchanging needs that are, or are not, fulfilled by changing social conditions and relations. Instead, it suggests that the "nature" of individuals changes over time, based on actual social practices and expectations. In this case, we are seeing a shift from individuals who depend on social relations that are dominated by locally embedded, thick, unmediated, given, and stable relations, into networked individuals--who are more dependent on their own combination of strong and weak ties, who switch networks, cross boundaries, and weave their own web of more or less instrumental, relatively fluid relationships. Manuel Castells calls this the "networked society,"~{ Manuel Castells, The Rise of Networked Society 2d ed. (Malden, MA: Blackwell Publishers, Inc., 2000). }~ Barry Wellman, "networked individualism."~{ Barry Wellman et al., "The Social Affordances of the Internet for Networked Individualism," Journal of Computer Mediated Communication 8, no. 3 (April 2003). }~ To simplify vastly, it is not that people cease to depend on others and their context for both psychological and social wellbeing and efficacy. It is that the kinds of connections that we come to rely on for these basic human needs change over time. Comparisons of current practices to the old ways of achieving the desiderata of community, and fears regarding the loss of community, are more a form of nostalgia than a diagnosis of present social malaise. ,{[pg 363]}, +={Castells, Manuel;Wellman, Barry;displacement of real-world interaction+5;family relations, strengthening of+5;loose affiliations;neighborhood relations, strengthening of+5;networked public sphere:loose affiliations;norms (social):loose affiliations;peer production:loose affiliations;public sphere:loose affiliations;regulation by social norms:loose affiliations;social relations and norms:loose affiliations;supplantation of real-world interaction+5;thickening of preexisting relations+5} + +3~ Users Increase Their Connections with Preexisting Relations +={e-mail:thickening of preexisting relations+4;social capital:thickening of preexisting relations+4} + +The most basic response to the concerns over the decline of community and its implications for both the psychological and the social capital strands is the empirical one. Relations with one's local geographic community and with one's intimate friends and family do not seem to be substantially affected by Internet use. To the extent that these relationships are affected, the effect is positive. Kraut and his collaborators continued their study, for example, and followed up with their study subjects for an additional three years. They found that the negative effects they had reported in the first year or two dissipated over the total period of observation.~{ Robert Kraut et al., "Internet Paradox Revisited," Journal of Social Issues 58, no. 1 (2002): 49. }~ Their basic hypothesis that the Internet probably strengthened weak ties, however, is consistent with other research and theoretical work. One of the earliest systematic studies of high-speed Internet access and its effects on communities in this vein was by Keith Hampton and Barry Wellman.~{ Keith Hampton and Barry Wellman, "Neighboring in Netville: How the Internet Supports Community and Social Capital in a Wired Suburb," City & Community 2, no. 4 (December 2003): 277. }~ They studied the aptly named Toronto suburb Netville, where homes had high-speed wiring years before broadband access began to be adopted widely in North America. One of their most powerful findings was that people who were connected recognized three times as many of their neighbors by name and regularly talked with twice as many as those who were not wired. On the other hand, however, stronger ties--indicated by actually visiting neighbors, as opposed to just knowing their name or stopping to say good morning--were associated with how long a person had lived in the neighborhood, not with whether or not they were wired. In other words, weak ties of the sort of knowing another's name or stopping to chat with them were significantly strengthened by Internet connection, even within a geographic neighborhood. Stronger ties were not. Using applications like a local e-mail list and personal e-mails, wired residents communicated with others in their neighborhood much more often than did nonwired residents. Moreover, wired residents recognized the names of people in a wider radius from their homes, while nonwired residents tended to know only people within their block, or even a few homes on each side. However, again, stronger social ties, like visiting and talking face-to-face, tended to be concentrated among physically proximate neighbors. Other studies also observed this increase of weak ties in a neighborhood with individuals who are more geographically distant than one's own immediate street or block.~{ Gustavo S. Mesch and Yael Levanon, "Community Networking and Locally-Based Social Ties in Two Suburban Localities," City & Community 2, no. 4 (December 2003): 335. }~ Perhaps the most visible aspect of the social capital implications of a well-wired geographic community was the finding that ,{[pg 364]}, +={Hampton, Keith;Kraut, Robert;Wellman, Barry;weak ties of online relations} + +wired neighbors began to sit on their front porches, instead of in their backyard, thereby providing live social reinforcement of community through daily brief greetings, as well as creating a socially enforced community policing mechanism. + +We now have quite a bit of social science research on the side of a number of factual propositions.~{ Useful surveys include: Paul DiMaggio et al., "Social Implications of the Internet," Annual Review of Sociology 27 (2001): 307-336; Robyn B. Driskell and Larry Lyon, "Are Virtual Communities True Communities? Examining the Environments and Elements of Community," City & Community 1, no. 4 (December 2002): 349; James E. Katz and Ronald E. Rice, Social Consequences of Internet Use: Access, Involvement, Interaction (Cambridge, MA: MIT Press, 2002). }~ Human beings, whether connected to the Internet or not, continue to communicate preferentially with people who are geographically proximate than with those who are distant.~{ Barry Wellman, "Computer Networks as Social Networks," Science 293, issue 5537 (September 2001): 2031. }~ Nevertheless, people who are connected to the Internet communicate more with people who are geographically distant without decreasing the number of local connections. While the total number of connections continues to be greatest with proximate family members, friends, coworkers, and neighbors, the Internet's greatest effect is in improving the ability of individuals to add to these proximate relationships new and better-connected relationships with people who are geographically distant. This includes keeping more in touch with friends and relatives who live far away, and creating new weak-tie relationships around communities of interest and practice. To the extent that survey data are reliable, the most comprehensive and updated surveys support these observations. It now seems clear that Internet users "buy" their time to use the Internet by watching less television, and that the more Internet experience they have, the less they watch TV. People who use the Internet claim to have increased the number of people they stay in touch with, while mostly reporting no effect on time they spend with their family.~{ Jeffery I. Cole et al., "The UCLA Internet Report: Surveying the Digital Future, Year Three" (UCLA Center for Communication Policy, January 2003), 33, 55, 62, http:// www.ccp.ucla.edu/pdf/UCLA-Internet-Report-Year-Three.pdf. }~ +={television:Internet use vs.} + +Connections with family and friends seemed to be thickened by the new channels of communication, rather than supplanted by them. Emblematic of this were recent results of a survey conducted by the Pew project on "Internet and American Life" on Holidays Online. Almost half of respondents surveyed reported using e-mail to organize holiday activities with family (48 percent) and friends (46 percent), 27 percent reported sending or receiving holiday greetings, and while a third described themselves as shopping online in order to save money, 51 percent said they went online to find an unusual or hard-to-find gift. In other words, half of those who used the Internet for holiday shopping did so in order to personalize their gift further, rather than simply to take advantage of the most obvious use of e-commerce--price comparison and time savings. Further support for this position is offered in another Pew study, entitled "Internet and Daily Life." In that survey, the two most common uses--both of which respondents claimed they did more of because of the Net than they otherwise would have--were connecting ,{[pg 365]}, with family and friends and looking up information.~{ Pew Internet and Daily Life Project (August 11, 2004), report available at http:// www.pewinternet.org/PPF/r/131/report_display.asp. }~ Further evidence that the Internet is used to strengthen and service preexisting relations, rather than create new ones, is the fact that 79 percent of those who use the Internet at all do so to communicate with friends and family, while only 26 percent use the Internet to meet new people or to arrange dates. Another point of evidence is the use of instant messaging (IM). IM is a synchronous communications medium that requires its users to set time aside to respond and provides information to those who wish to communicate with an individual about whether that person is or is not available at any given moment. Because it is so demanding, IM is preferentially useful for communicating with individuals with whom one already has a preexisting relationship. This preferential use for strengthening preexisting relations is also indicated by the fact that two-thirds of IM users report using IM with no more than five others, while only one in ten users reports instant messaging with more than ten people. A recent Pew study of instant messaging shows that 53 million adults--42 percent of Internet users in the United States--trade IM messages. Forty percent use IM to contact coworkers, one-third family, and 21 percent use it to communicate equally with both. Men and women IM in equal proportions, but women IM more than men do, averaging 433 minutes per month as compared to 366 minutes, respectively, and households with children IM more than households without children. +={Pew studies;instant messaging;text messaging} + +These studies are surveys and local case studies. They cannot offer a knockdown argument about how "we"--everyone, everywhere--are using the Internet. The same technology likely has different effects when it is introduced into cultures that differ from each other in their pre-Internet baseline.~{ See Barry Wellman, "The Social Affordances of the Internet for Networked Individualism," Journal of Computer Mediated Communication 8, no. 3 (April 2003); Gustavo S. Mesch and Yael Levanon, "Community Networking and Locally-Based Social Ties in Two Suburban Localities, City & Community 2, no. 4 (December 2003): 335. }~ Despite these cautions, these studies do offer the best evidence we have about Internet use patterns. As best we can tell from contemporary social science, Internet use increases the contact that people have with others who traditionally have been seen as forming a person's "community": family, friends, and neighbors. Moreover, the Internet is also used as a platform for forging new relationships, in addition to those that are preexisting. These relationships are more limited in nature than ties to friends and family. They are detached from spatial constraints, and even time synchronicity; they are usually interest or practice based, and therefore play a more limited role in people's lives than the more demanding and encompassing relationships with family or intimate friends. Each discrete connection or cluster of connections that forms a social network, or a network of social relations, plays some role, but not a definitive one, in each participant's life. There is little disagreement ,{[pg 366]}, among researchers that these kinds of weak ties or limited-liability social relationships are easier to create on the Internet, and that we see some increase in their prevalence among Internet users. The primary disagreement is interpretive--in other words, is it, on balance, a good thing that we have multiple, overlapping, limited emotional liability relationships, or does it, in fact, undermine our socially embedded being? + +2~ Networked Individuals +={loose affiliations+4;networked public sphere:loose affiliations+4;norms (social):loose affiliations+4|working with social expectations+4;peer production:loose affiliations+4;public sphere:loose affiliations+4;regulation by social norms:loose affiliations+4|working with social expectations+4;social capital:networked society+4;social relations and norms:loose affiliations+4|working with social expectations+4} + +The interpretive argument about the normative value of the increase in weak ties is colored by the empirical finding that the time spent on the Internet in these limited relationships does not come at the expense of the number of communications with preexisting, real-world relationships. Given our current state of sociological knowledge, the normative question cannot be whether online relations are a reasonable replacement for real-world friendship. Instead, it must be how we understand the effect of the interaction between an increasingly thickened network of communications with preexisting relations and the casting of a broader net that captures many more, and more varied, relations. What is emerging in the work of sociologists is a framework that sees the networked society or the networked individual as entailing an abundance of social connections and more effectively deployed attention. The concern with the decline of community conceives of a scarcity of forms of stable, nurturing, embedding relations, which are mostly fixed over the life of an individual and depend on long-standing and interdependent relations in stable groups, often with hierarchical relations. What we now see emerging is a diversity of forms of attachment and an abundance of connections that enable individuals to attain discrete components of the package of desiderata that "community" has come to stand for in sociology. As Wellman puts it: "Communities and societies have been changing towards networked societies where boundaries are more permeable, interactions are with diverse others, linkages switch between multiple networks, and hierarchies are flatter and more recursive. . . . Their work and community networks are diffuse, sparsely knit, with vague, overlapping, social and spatial boundaries."~{ Barry Wellman, "The Social Affordances of the Internet." }~ In this context, the range and diversity of network connections beyond the traditional family, friends, stable coworkers, or village becomes a source of dynamic stability, rather than tension and disconnect. +={Wellman, Barry} + +The emergence of networked individuals is not, however, a mere overlay, "floating" on top of thickened preexisting social relations without touching them except to add more relations. The interpolation of new networked ,{[pg 367]}, connections, and the individual's role in weaving those for him- or herself, allows individuals to reorganize their social relations in ways that fit them better. They can use their network connections to loosen social bonds that are too hierarchical and stifling, while filling in the gaps where their realworld relations seem lacking. Nowhere is this interpolation clearer than in Mizuko Ito's work on the use of mobile phones, primarily for text messaging and e-mail, among Japanese teenagers.~{ A review of Ito's own work and that of other scholars of Japanese techno-youth culture is Mizuko Ito, "Mobile Phones, Japanese Youth, and the Re-Placement of Social Contact," forthcoming in Mobile Communications: Re-negotiation of the Social Sphere, ed., Rich Ling and P. Pedersen (New York: Springer, 2005). }~ Japanese urban teenagers generally live in tighter physical quarters than their American or European counterparts, and within quite strict social structures of hierarchy and respect. Ito and others have documented how these teenagers use mobile phones--primarily as platforms for text messages--that is, as a mobile cross between email and instant messaging and more recently images, to loosen the constraints under which they live. They text at home and in the classroom, making connections to meet in the city and be together, and otherwise succeed in constructing a network of time- and space-bending emotional connections with their friends, without--and this is the critical observation--breaking the social molds they otherwise occupy. They continue to spend time in their home, with their family. They continue to show respect and play the role of child at home and at school. However, they interpolate that role and those relations with a sub-rosa network of connections that fulfill otherwise suppressed emotional needs and ties. +={text messaging;mobile phones} + +The phenomenon is not limited to youths, but is applicable more generally to the capacity of users to rely on their networked connections to escape or moderate some of the more constraining effects of their stable social connections. In the United States, a now iconic case--mostly described in terms of privacy--was that of U.S. Navy sailor Timothy McVeigh (not the Oklahoma bomber). McVeigh was discharged from the navy when his superiors found out that he was gay by accessing his AOL (America Online) account. The case was primarily considered in terms of McVeigh's e-mail account privacy. It settled for an undisclosed sum, and McVeigh retired from the navy with benefits. However, what is important for us here is not the "individual rights" category under which the case was fought, but the practice that it revealed. Here was an eighteen-year veteran of the navy who used the space-time breaking possibilities of networked communications to loosen one of the most constraining attributes imaginable of the hierarchical framework that he nonetheless chose to be part of--the U.S. Navy. It would be odd to think that the navy did not provide McVeigh with a sense of identity and camaraderie that closely knit communities provide their ,{[pg 368]}, members. Yet at the same time, it also stifled his ability to live one of the most basic of all human ties--his sexual identity. He used the network and its potential for anonymous and pseudonymous existence to coexist between these two social structures. +={McVeigh, Timothy (sailor)} + +% book index reference to Shirky, Clay on page 368, not found + +At the other end of the spectrum of social ties, we see new platforms emerging to generate the kinds of bridging relations that were so central to the identification of "weak ties" in social capital literature. Weak ties are described in the social capital literature as allowing people to transmit information across social networks about available opportunities and resources, as well as provide at least a limited form of vouching for others--as one introduces a friend to a friend of a friend. What we are seeing on the Net is an increase in the platforms developed to allow people to create these kinds of weak ties based on an interest or practice. Perhaps clearest of these is Meetup.com. Meetup is a Web site that allows users to search for others who share an interest and who are locally available to meet face-to-face. The search results show users what meetings are occurring within their requested area and interest. The groups then meet periodically, and those who sign up for them also are able to provide a profile and photo of themselves, to facilitate and sustain the real-world group meetings. The power of this platform is that it is not intended as a replacement for real-space meetings. It is intended as a replacement for the happenstance of social networks as they transmit information about opportunities for interest- and practice-based social relations. The vouching function, on the other hand, seems to have more mixed efficacy, as Dana Boyd's ethnography of Friendster suggests.~{ Dana M. Boyd, "Friendster and Publicly Articulated Social Networking," Conference on Human Factors and Computing Systems (CHI 2004) (Vienna: ACM, April 24-29, 2004). }~ Friendster was started as a dating Web site. It was built on the assumption that dating a friend of a friend of a friend is safer and more likely to be successful than dating someone based on a similar profile, located on a general dating site like match.com--in other words, that vouching as friends provides valuable information. As Boyd shows, however, the attempt of Friendster to articulate and render transparent the social networks of its users met with less than perfect success. The platform only permits users to designate friend/not friend, without the finer granularity enabled by a face-toface conversation about someone, where one can answer or anticipate the question, "just how well do you know this person?" with a variety of means, from tone to express reservations. On Friendster, it seems that people cast broader networks, and for fear of offending or alienating others, include many more "friendsters" than they actually have "friends." The result is a weak platform for mapping general connections, rather than a genuine articulation ,{[pg 369]}, of vouching through social networks. Nonetheless, it does provide a visible rendering of at least the thinnest of weak ties, and strengthens their effect in this regard. It enables very weak ties to perform some of the roles of real-world weak social ties. +={Boyd, Dana;bridging social relationships;Friendster;Meetup.com site;vouching for others, network of} + +2~ THE INTERNET AS A PLATFORM FOR HUMAN CONNECTION +={Internet:as platform for human connection+4;norms (social):Internet as platform for+4;regulation by social norms:Internet as platform for+4;social relations and norms:Internet as platform for+4} + +Communication is constitutive of social relations. We cannot have relationships except by communicating with others. Different communications media differ from each other--in who gets to speak to whom and in what can be said. These differences structure the social relations that rely on these various modes of communication so that they differ from each other in significant ways. Technological determinism is not required to accept this. Some aspects of the difference are purely technical. Script allows text and more or less crude images to be transmitted at a distance, but not voice, touch, smell, or taste. To the extent that there are human emotions, modes of submission and exertion of authority, irony, love or affection, or information that is easily encoded and conveyed in face-to-face communications but not in script, script-based communications are a poor substitute for presence. A long and romantic tradition of love letters and poems notwithstanding, there is a certain thinness to that mode in the hands of all but the most gifted writers relative to the fleshiness of unmediated love. Some aspects of the difference among media of communication are not necessarily technical, but are rather culturally or organizationally embedded. Television can transmit text. However, text distribution is not television's relative advantage in a sociocultural environment that already has mass-circulation print media, and in a technical context where the resolution of television images is relatively low. As a matter of cultural and business practice, therefore, from its inception, television emphasized moving images and sound, not text transmission. Radio could have been deployed as short-range, point-to-point personal communications systems, giving us a nation of walkie-talkies. However, as chapter 6 described, doing so would have required a very different set of regulatory and business decisions between 1919 and 1927. Communications media take on certain social roles, structures of control, and emphases of style that combine their technical capacities and limits with the sociocultural business context into which they were introduced, and through which they developed. The result is a cluster of use characteristics that define how a ,{[pg 370]}, given medium is used within a given society, in a given historical context. They make media differ from each other, providing platforms with very different capacities and emphases for their users. +={radio:as platform for human connection+1;text distribution as platform for human connection+1;written communications as platform for human connection+1} + +As a technical and organizational matter, the Internet allows for a radically more diverse suite of communications models than any of the twentiethcentury systems permitted. It allows for textual, aural, and visual communications. It permits spatial and temporal asynchronicity, as in the case of email or Web pages, but also enables temporal synchronicity--as in the case of IM, online game environments, or Voice over Internet Protocol (VoIP). It can even be used for subchannel communications within a spatially synchronous context, such as in a meeting where people pass electronic notes to each other by e-mail or IM. Because it is still highly textual, it requires more direct attention than radio, but like print, it is highly multiplexable-- both between uses of the Internet and other media, and among Internet uses themselves. Similar to print media, you can pick your head up from the paper, make a comment, and get back to reading. Much more richly, one can be on a voice over IP conversation and e-mail at the same time, or read news interlaced with receiving and responding to e-mail. It offers oneto-one, one-to-few, few-to-few, one-to-many, and many-to-many communications capabilities, more diverse in this regard than any medium for social communication that preceded it, including--on the dimensions of distance, asynchronicity, and many-to-many capabilities--even that richest of media: face-to-face communications. + +Because of its technical flexibility and the "business model" of Internet service providers as primarily carriers, the Internet lends itself to being used for a wide range of social relations. Nothing in "the nature of the technology" requires that it be the basis of rich social relations, rather than becoming, as some predicted in the early 1990s, a "celestial jukebox" for the mass distribution of prepackaged content to passive end points. In contradistinction to the dominant remote communications technologies of the twentieth century, however, the Internet offers some new easy ways to communicate that foster both of the types of social communication that the social science literature seems to be observing. Namely, it makes it easy to increase the number of communications with preexisting friends and family, and increases communication with geographically distant or more loosely affiliated others. Print, radio, television, film, and sound recording all operated largely on a one-to-many model. They did not, given the economics of production and transmission, provide a usable means of remote communication for individuals ,{[pg 371]}, at the edges of these communication media. Television, film, sound recording, and print industries were simply too expensive, and their business organization was too focused on selling broadcast-model communications, to support significant individual communication. When cassette tapes were introduced, we might have seen people recording a tape instead of writing a letter to friends or family. However, this was relatively cumbersome, low quality, and time consuming. Telephones were the primary means of communications used by individuals, and they indeed became the primary form of mediated personal social communications. However, telephone conversations require synchronicity, which means that they can only be used for socializing purposes when both parties have time. They were also only usable throughout this period for serial, one-to-one conversations. Moreover, for most of the twentieth century, a long-distance call was a very expensive proposition for most nonbusiness users, and outside of the United States, local calls too carried nontrivial time-sensitive prices in most places. Telephones were therefore a reasonable medium for social relations with preexisting friends and family. However, their utility dropped off radically with the cost of communication, which was at a minimum associated with geographic distance. In all these dimensions, the Internet makes it easier and cheaper to communicate with family and friends, at close proximity or over great distances, through the barriers of busy schedules and differing time zones. Moreover, because of the relatively low-impact nature of these communications, the Internet allows people to experiment with looser relations more readily. In other words, the Internet does not make us more social beings. It simply offers more degrees of freedom for each of us to design our own communications space than were available in the past. It could have been that we would have used that design flexibility to re-create the massmedia model. But to predict that it would be used in this fashion requires a cramped view of human desire and connectedness. It was much more likely that, given the freedom to design our own communications environment flexibly and to tailor it to our own individual needs dynamically over time, we would create a system that lets us strengthen the ties that are most important to us. It was perhaps less predictable, but unsurprising after the fact, that this freedom would also be used to explore a wider range of relations than simply consuming finished media goods. +={telephone, as platform for human connection} + +There is an appropriate wariness in contemporary academic commentary about falling into the trap of "the mythos of the electrical sublime" by adopting a form of Internet utopianism.~{ James W. Carrey, Communication as Culture: Essays on Media and Society (Boston: Unwin Hyman, 1989). }~ It is important, however, not to ,{[pg 372]}, let this caution blind us to the facts about Internet use, and the technical, business, and cultural capabilities that the Internet makes feasible. The cluster of technologies of computation and communications that characterize the Internet today are, in fact, used in functionally different ways, and make for several different media of communication than we had in the twentieth century. The single technical platform might best be understood to enable several different "media"--in the sense of clusters of technical-socialeconomic practices of communication--and the number of these enabled media is growing. Instant messaging came many years after e-mail, and a few years after Web pages. Blogging one's daily journal on LiveJournal so that a group of intimates can check in on one's life as it unfolds was not a medium that was available to users until even more recently. The Internet is still providing its users with new ways to communicate with each other, and these represent a genuinely wide range of new capabilities. It is therefore unsurprising that connected social beings, such as we are, will take advantage of these new capabilities to form connections that were practically infeasible in the past. This is not media determinism. This is not millenarian utopianism. It is a simple observation. People do what they can, not what they cannot. In the daily humdrum of their lives, individuals do more of what is easier to do than what requires great exertion. When a new medium makes it easy for people to do new things, they may well, in fact, do them. And when these new things are systematically more user-centric, dialogic, flexible in terms of the temporal and spatial synchronicity they require or enable, and multiplexable, people will communicate with each other in ways and amounts that they could not before. + +2~ THE EMERGENCE OF SOCIAL SOFTWARE +={behavior:enforced with social software+4;blogs:as social software+4;collaborative authorship:social software+4;norms (social):enforced norms with software+4|software for, emergence of+4;regulation by social norms:enforced norms with software+4|software for, emergence of+4;social relations and norms:enforced norms with software+4|software for, emergence of+4;social software+4;software:social+4;technology:social software+4;Wikis as social software+4} + +The design of the Internet itself is agnostic as among the social structures and relations it enables. At its technical core is a commitment to push all the detailed instantiations of human communications to the edges of the network--to the applications that run on the computers of users. This technical agnosticism leads to a social agnosticism. The possibility of large-scale sharing and cooperation practices, of medium-scale platforms for collaboration and discussion, and of small-scale, one-to-one communications has led to the development of a wide range of software designs and applications to facilitate different types of communications. The World Wide Web was used initially as a global broadcast medium available to anyone and everyone, ,{[pg 373]}, everywhere. In e-mail, we see a medium available for one-to-one, few-tofew, one-to-many and, to a lesser extent, many-to-many use. One of the more interesting phenomena of the past few years is the emergence of what is beginning to be called "social software." As a new design space, it is concerned with groups that are, as defined by Clay Shirky, who first articulated the concept, "Larger than a dozen, smaller than a few hundred, where people can actually have these conversational forms that can't be supported when you're talking about tens of thousands or millions of users, at least in a single group." The definition of the term is somewhat amorphous, but the basic concept is software whose design characteristic is that it treats genuine social phenomena as different from one-to-one or one-to-many communications. It seeks to build one's expectations about the social interactions that the software will facilitate into the design of the platform. The design imperative was most clearly articulated by Shirky when he wrote that from the perspective of the software designer, the user of social software is the group, not the individual.~{ Clay Shirky, "A Group Is Its Own Worst Enemy," published first in Networks, Economics and Culture mailing list July 1, 2003. }~ +={Shirky, Clay} + +A simple example will help to illustrate. Take any given site that uses a collaborative authorship tool, like the Wiki that is the basis of /{Wikipedia}/ and many other cooperative authorship exercises. From the perspective of an individual user, the ease of posting a comment on the Wiki, and the ease of erasing one's own comments from it, would be important characteristics: The fewer registration and sign-in procedures, the better. Not so from the perspective of the group. The group requires some "stickiness" to make the group as a group, and the project as a project, avoid the rending forces of individualism and self-reference. So, for example, design components that require registration for posting, or give users different rights to post and erase comments over time, depending on whether they are logged in or not, or depending on a record of their past cooperative or uncooperative behavior, are a burden for the individual user. However, that is precisely their point. They are intended to give those users with a greater stake in the common enterprise a slight, or sometimes large, edge in maintaining the group's cohesion. Similarly, erasing past comments may be useful for the individual, for example, if they were silly or untempered. Keeping the comments there is, however, useful to the group--as a source of experience about the individual or part of the group's collective memory about mistakes made in the past that should not be repeated by someone else. Again, the needs of the group as a group often differ from those of the individual participant. Thinking of the platform as social software entails designing it with characteristics ,{[pg 374]}, that have a certain social-science or psychological model of the interactions of a group, and building the platform's affordances in order to enhance the survivability and efficacy of the group, even if it sometimes comes at the expense of the individual user's ease of use or comfort. + +This emergence of social software--like blogs with opportunities to comment, Wikis, as well as social-norm-mediated Listservs or uses of the "cc" line in e-mail--underscores the nondeterministic nature of the claim about the relationship between the Internet and social relations. The Internet makes possible all sorts of human communications that were not technically feasible before its widespread adoption. Within this wide range of newly feasible communications patterns, we are beginning to see the emergence of different types of relationships--some positive, some, like spam (unsolicited commercial e-mail), decidedly negative. In seeking to predict and diagnose the relationship between the increasing use of Internet communications and the shape of social relations, we see that the newly emerging constructive social possibilities are leading to new design challenges. These, in turn, are finding engineers and enthusiasts willing and able to design for them. The genuinely new capability--connecting among few and many at a distance in a dialogic, recursive form--is leading to the emergence of new design problems. These problems come from the fact that the new social settings come with their own social dynamics, but without long-standing structures of mediation and constructive ordering. Hence the early infamy of the tendency of Usenet and Listservs discussions to deteriorate into destructive flame wars. As social habits of using these kinds of media mature, so that users already know that letting loose on a list will likely result in a flame war and will kill the conversation, and as designers understand that social dynamics--including both those that allow people to form and sustain groups and those that rend them apart with equal if not greater force--we are seeing the coevolution of social norms and platform designs that are intended to give play to the former, and mediate or moderate the latter. These platforms are less likely to matter for sustaining the group in preexisting relations--as among friends or family. The structuring of those relationships is dominated by social norms. However, they do offer a new form and a stabilizing context for the newly emerging diverse set of social relations--at a distance, across interests and contexts--that typify both peer production and many forms of social interaction aimed purely at social reproduction. +={peer production:as platform for human connection+1} + +The peer-production processes that are described in primarily economic ,{[pg 375]}, terms in chapter 3--like free software development, /{Wikipedia}/, or the Open Directory Project--represent one cluster of important instances of this new form of social relations. They offer a type of relationship that is nonhierarchical and organized in a radically decentralized pattern. Their social valence is given by some combination of the shared experience of joint creativity they enable, as well as their efficacy--their ability to give their users a sense of common purpose and mutual support in achieving it. Individuals adopt projects and purposes they consider worth pursuing. Through these projects they find others, with whom they initially share only a general sense of human connectedness and common practical interest, but with whom they then interact in ways that allow the relationship to thicken over time. Nowhere is this process clearer than on the community pages of /{Wikipedia}/. Because of the limited degree to which that platform uses technical means to constrain destructive behavior, the common enterprise has developed practices of user-to-user communication, multiuser mediation, and userappointed mediation to resolve disputes and disagreements. Through their involvement in these, users increase their participation, their familiarity with other participants--at least in this limited role as coauthors--and their practices of mutual engagement with these others. In this way, peer production offers a new platform for human connection, bringing together otherwise unconnected individuals and replacing common background or geographic proximity with a sense of well-defined purpose and the successful common pursuit of this purpose as the condensation point for human connection. Individuals who are connected to each other in a peer-production community may or may not be bowling alone when they are off-line, but they are certainly playing together online. + +2~ THE INTERNET AND HUMAN COMMUNITY +={communities:human and Internet, together+2;human community, coexisting with Internet+2;Internet:coexisting with human community+2;norms (social):Internet and human coexistence+2;regulation by social norms:Internet and human coexistence+2;social relations and norms:Internet and human coexistence+2} + +This chapter began with a basic question. While the networked information economy may enhance the autonomy of individuals, does it not also facilitate the breakdown of community? The answer offered here has been partly empirical and partly conceptual. + +Empirically, it seems that the Internet is allowing us to eat our cake and have it too, apparently keeping our (social) figure by cutting down on the social equivalent of deep-fried dough--television. That is, we communicate more, rather than less, with the core constituents of our organic communities--our family and our friends--and we seem, in some places, also to ,{[pg 376]}, be communicating more with our neighbors. We also communicate more with loosely affiliated others, who are geographically remote, and who may share only relatively small slivers of overlapping interests, or for only short periods of life. The proliferation of potential connections creates the social parallel to the Babel objection in the context of autonomy--with all these possible links, will any of them be meaningful? The answer is largely that we do, in fact, employ very strong filtering on our Internet-based social connections in one obvious dimension: We continue to use the newly feasible lines of communication primarily to thicken and strengthen connections with preexisting relationships--family and friends. The clearest indication of this is the parsimony with which most people use instant messaging. The other mechanism we seem to be using to avoid drowning in the noise of potential chitchat with ever-changing strangers is that we tend to find networks of connections that have some stickiness from our perspective. This stickiness could be the efficacy of a cluster of connections in pursuit of a goal one cares about, as in the case of the newly emerging peer-production enterprises. It could be the ways in which the internal social interaction has combined social norms with platform design to offer relatively stable relations with others who share common interests. Users do not amble around in a social equivalent of Brownian motion. They tend to cluster in new social relations, albeit looser and for more limited purposes than the traditional pillars of community. +={networked public sphere:see also social relations and norms networked society+1} + +The conceptual answer has been that the image of "community" that seeks a facsimile of a distant pastoral village is simply the wrong image of how we interact as social beings. We are a networked society now--networked individuals connected with each other in a mesh of loosely knit, overlapping, flat connections. This does not leave us in a state of anomie. We are welladjusted, networked individuals; well-adjusted socially in ways that those who seek community would value, but in new and different ways. In a substantial departure from the range of feasible communications channels available in the twentieth century, the Internet has begun to offer us new ways of connecting to each other in groups small and large. As we have come to take advantage of these new capabilities, we see social norms and software coevolving to offer new, more stable, and richer contexts for forging new relationships beyond those that in the past have been the focus of our social lives. These do not displace the older relations. They do not mark a fundamental shift in human nature into selfless, community-conscious characters. We continue to be complex beings, radically individual and self-interested ,{[pg 377]}, at the same time that we are entwined with others who form the context out of which we take meaning, and in which we live our lives. However, we now have new scope for interaction with others. We have new opportunities for building sustained limited-purpose relations, weak and intermediate-strength ties that have significant roles in providing us with context, with a source of defining part of our identity, with potential sources for support, and with human companionship. That does not mean that these new relationships will come to displace the centrality of our more immediate relationships. They will, however, offer increasingly attractive supplements as we seek new and diverse ways to embed ourselves in relation to others, to gain efficacy in weaker ties, and to interpolate different social networks in combinations that provide us both stability of context and a greater degree of freedom from the hierarchical and constraining aspects of some of our social relations. ,{[pg 378]}, ,{[pg 379]}, + +:B~ Part Three - Policies of Freedom at a Moment of Transformation + +1~p3 Introduction + +Part I of this book offers a descriptive, progressive account of emerging patterns of nonmarket individual and cooperative social behavior, and an analysis of why these patterns are internally sustainable and increase information economy productivity. Part II combines descriptive and normative analysis to claim that these emerging practices offer defined improvements in autonomy, democratic discourse, cultural creation, and justice. I have noted periodically, however, that the descriptions of emerging social practices and the analysis of their potential by no means imply that these changes will necessarily become stable or provide the benefits I ascribe them. They are not a deterministic consequence of the adoption of networked computers as core tools of information production and exchange. There is no inevitable historical force that drives the technological-economic moment toward an open, diverse, liberal equilibrium. If the transformation I describe actually generalizes and stabilizes, it could lead to substantial redistribution of power and money. The twentieth-century industrial producers of information, culture, and communications--like Hollywood, the recording industry, ,{[pg 380]}, and some of the telecommunications giants--stand to lose much. The winners would be a combination of the widely diffuse population of individuals around the globe and the firms or other toolmakers and platform providers who supply these newly capable individuals with the context for participating in the networked information economy. None of the industrial giants of yore are taking this threat lying down. Technology will not overcome their resistance through an insurmountable progressive impulse of history. The reorganization of production and the advances it can bring in freedom and justice will emerge only as a result of social practices and political actions that successfully resist efforts to regulate the emergence of the networked information economy in order to minimize its impact on the incumbents. + +Since the middle of the 1990s, we have seen intensifying battles over the institutional ecology within which the industrial mode of information production and the newly emerging networked modes compete. Partly, this has been a battle over telecommunications infrastructure regulation. Most important, however, this has meant a battle over "intellectual property" protection, very broadly defined. Building upon and extending a twenty-five-year trend of expansion of copyrights, patents, and similar exclusive rights, the last half-decade of the twentieth century saw expansion of institutional mechanisms for exerting exclusive control in multiple dimensions. The term of copyright was lengthened. Patent rights were extended to cover software and business methods. Trademarks were extended by the Antidilution Act of 1995 to cover entirely new values, which became the basis for liability in the early domain-name trademark disputes. Most important, we saw a move to create new legal tools with which information vendors could hermetically seal access to their materials to an extent never before possible. The Digital Millennium Copyright Act (DMCA) prohibited the creation and use of technologies that would allow users to get at materials whose owners control through encryption. It prohibited even technologies that users can employ to use the materials in ways that the owners have no right to prevent. Today we are seeing efforts to further extend similar technological regulations-- down to the level of regulating hardware to make sure that it complies with design specifications created by the copyright industries. At other layers of the communications environment, we see efforts to expand software patents, to control the architecture of personal computing devices, and to create ever-stronger property rights in physical infrastructure--be it the telephone lines, cable plant, or wireless frequencies. Together, these legislative and judicial ,{[pg 381]}, acts have formed what many have been calling a second enclosure movement: A concerted effort to shape the institutional ecology in order to help proprietary models of information production at the expense of burdening nonmarket, nonproprietary production.~{ For a review of the literature and a substantial contribution to it, see James Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," Law and Contemporary Problems 66 (Winter-Spring 2003): 33-74. }~ The new enclosure movement is not driven purely by avarice and rent seeking--though it has much of that too. Some of its components are based in well-meaning judicial and regulatory choices that represent a particular conception of innovation and its relationship to exclusive rights. That conception, focused on mass-mediatype content, movies, and music, and on pharmaceutical-style innovation systems, is highly solicitous of the exclusive rights that are the bread and butter of those culturally salient formats. It is also suspicious of, and detrimental to, the forms of nonmarket, commons-based production emerging in the networked information economy. +={Antidilutation Act of 1995;Digital Millennium Copyright Act (DMCA);DMCA (Digital Millennium Copyright Act);logical layer of institutional ecology:DMCA (Digital Millennium Copyright Act);proprietary rights:Digital Millennium Copyright Act (DMCA)|enclosure movement+1;commercial model of communication:enclosure movement+1;enclosure movement+1;industrial model of communication:enclosure movement+1;institutional ecology of digital environment:enclosure movement+1;policy:enclosure movement+1;traditional model of communication:enclosure movement+1} + +% extra ref to antidilutation act added + +This new enclosure movement has been the subject of sustained and diverse academic critique since the mid-1980s.~{ Early versions in the legal literature of the skepticism regarding the growth of exclusive rights were Ralph Brown's work on trademarks, Benjamin Kaplan's caution over the gathering storm that would become the Copyright Act of 1976, and Stephen Breyer's work questioning the economic necessity of copyright in many industries. Until, and including the 1980s, these remained, for the most part, rare voices--joined in the 1980s by David Lange's poetic exhortation for the public domain; Pamela Samuelson's systematic critique of the application of copyright to computer programs, long before anyone was paying attention; Jessica Litman's early work on the political economy of copyright legislation and the systematic refusal to recognize the public domain as such; and William Fisher's theoretical exploration of fair use. The 1990s saw a significant growth of academic questioning of enclosure: Samuelson continued to press the question of copyright in software and digital materials; Litman added a steady stream of prescient observations as to where the digital copyright was going and how it was going wrong; Peter Jaszi attacked the notion of the romantic author; Ray Patterson developed a user-centric view of copyright; Diane Zimmerman revitalized the debate over the conflict between copyright and the first amendment; James Boyle introduced erudite criticism of the theoretical coherence of the relentless drive to propertization; Niva Elkin Koren explored copyright and democracy; Keith Aoki questioned trademark, patents, and global trade systems; Julie Cohen early explored technical protection systems and privacy; and Eben Moglen began mercilessly to apply the insights of free software to hack at the foundations of intellectual property apologia. Rebecca Eisenberg, and more recently, Arti Rai, questioned the wisdom of patents on research tools to biomedical innovation. In this decade, William Fisher, Larry Lessig, Litman, and Siva Vaidhyanathan have each described the various forms that the enclosure movement has taken and exposed its many limitations. Lessig and Vaidhyanathan, in particular, have begun to explore the relations between the institutional battles and the freedom in the networked environment. }~ The core of this rich critique has been that the cases and statutes of the past decade or so have upset the traditional balance, in copyrights in particular, between seeking to create incentives through the grant of exclusive rights and assuring access to information through the judicious limitation of these rights and the privileging of various uses. I do not seek to replicate that work here, or to offer a comprehensive listing of all the regulatory moves that have increased the scope of proprietary rights in digital communications networks. Instead, I offer a way of framing these various changes as moves in a large-scale battle over the institutional ecology of the digital environment. By "institutional ecology," I mean to say that institutions matter to behavior, but in ways that are more complex than usually considered in economic models. They interact with the technological state, the cultural conceptions of behaviors, and with incumbent and emerging social practices that may be motivated not only by self-maximizing behavior, but also by a range of other social and psychological motivations. In this complex ecology, institutions--most prominently, law--affect these other parameters, and are, in turn, affected by them. Institutions coevolve with technology and with social and market behavior. This coevolution leads to periods of relative stability, punctuated by periods of disequilibrium, which may be caused by external shocks or internally generated phase shifts. During these moments, the various parameters will be out of step, and will pull and tug at the pattern of behavior, at the technology, and at the institutional forms of the behavior. After the tugging and pulling has shaped the various parameters in ways that are more consistent ,{[pg 382]}, with each other, we should expect to see periods of relative stability and coherence. + +Chapter 11 is devoted to an overview of the range of discrete policy areas that are shaping the institutional ecology of digital networks, in which proprietary, market-based models of information production compete with those that are individual, social, and peer produced. In almost all contexts, when presented with a policy choice, advanced economies have chosen to regulate information production and exchange in ways that make it easier to pursue a proprietary, exclusion-based model of production of entertainment goods at the expense of commons- and service-based models of information production and exchange. This has been true irrespective of the political party in power in the United States, or the cultural differences in the salience of market orientation between Europe and the United States. However, the technological trajectory, the social practices, and the cultural understanding are often working at cross-purposes with the regulatory impulse. The equilibrium on which these conflicting forces settle will shape, to a large extent, the way in which information, knowledge, and culture are produced and used over the coming few decades. Chapter 12 concludes the book with an overview of what we have seen about the political economy of information and what we might therefore understand to be at stake in the policy choices that liberal democracies and advanced economies will be making in the coming years. ,{[pg 383]}, + +1~11 Chapter 11 - The Battle Over the Institutional Ecology of the Digital Environment +={commercial model of communication+133;industrial model of communication+133;institutional ecology of digital environment+133;policy+133;traditional model of communication+133} + +The decade straddling the turn of the twenty-first century has seen high levels of legislative and policy activity in the domains of information and communications. Between 1995 and 1998, the United States completely overhauled its telecommunications law for the first time in sixty years, departed drastically from decades of practice on wireless regulation, revolutionized the scope and focus of trademark law, lengthened the term of copyright, criminalized individual user infringement, and created new para-copyright powers for rights holders that were so complex that the 1998 Digital Millennium Copyright Act (DMCA) that enacted them was longer than the entire Copyright Act. Europe covered similar ground on telecommunications, and added a new exclusive right in raw facts in databases. Both the United States and the European Union drove for internationalization of the norms they adopted, through the new World Intellectual Property Organization (WIPO) treaties and, more important, though the inclusion of intellectual property concerns in the international trade regime. In the seven years since then, legal battles have raged over the meaning of these changes, as well ,{[pg 384]}, as over efforts to extend them in other directions. From telecommunications law to copyrights, from domain name assignment to trespass to server, we have seen a broad range of distinct regulatory moves surrounding the question of control over the basic resources needed to create, encode, transmit, and receive information, knowledge, and culture in the digital environment. As we telescope up from the details of sundry regulatory skirmishes, we begin to see a broad pattern of conflict over the way that access to these core resources will be controlled. + +Much of the formal regulatory drive has been to increase the degree to which private, commercial parties can gain and assert exclusivity in core resources necessary for information production and exchange. At the physical layer, the shift to broadband Internet has been accompanied by less competitive pressure and greater legal freedom for providers to exclude competitors from, and shape the use of, their networks. That freedom from both legal and market constraints on exercising control has been complemented by increasing pressures from copyright industries to require that providers exercise greater control over the information flows in their networks in order to enforce copyrights. At the logical layer, anticircumvention provisions and the efforts to squelch peer-to-peer sharing have created institutional pressures on software and protocols to offer a more controlled and controllable environment. At the content layer, we have seen a steady series of institutional changes aimed at tightening exclusivity. +={content layer of institutional ecology+1;layers of institutional ecology+1:content layer+1;logical layer of institutional ecology;physical capital for production+1;policy layers+1} + +At each of these layers, however, we have also seen countervailing forces. At the physical layer, the Federal Communications Commission's (FCC's) move to permit the development of wireless devices capable of self-configuring as user-owned networks offers an important avenue for a commons-based last mile. The open standards used for personal computer design have provided an open platform. The concerted resistance against efforts to require computers to be designed so they can more reliably enforce copyrights against their users has, to this point, prevented extension of the DMCA approach to hardware design. At the logical layer, the continued centrality of open standard-setting processes and the emergence of free software as a primary modality of producing mission-critical software provide significant resistance to efforts to enclose the logical layer. At the content layer, where law has been perhaps most systematically one-sided in its efforts to enclose, the cultural movements and the technical affordances that form the foundation of the transformation described throughout this book stand as the most significant barrier to enclosure. ,{[pg 385]}, + +It is difficult to tell how much is really at stake, from the long-term perspective, in all these legal battles. From one point of view, law would have to achieve a great deal in order to replicate the twentieth-century model of industrial information economy in the new technical-social context. It would have to curtail some of the most fundamental technical characteristics of computer networks and extinguish some of our most fundamental human motivations and practices of sharing and cooperation. It would have to shift the market away from developing ever-cheaper general-purpose computers whose value to users is precisely their on-the-fly configurability over time, toward more controllable and predictable devices. It would have to squelch the emerging technologies in wireless, storage, and computation that are permitting users to share their excess resources ever more efficiently. It would have to dampen the influence of free software, and prevent people, young and old, from doing the age-old human thing: saying to each other, "here, why don't you take this, you'll like it," with things they can trivially part with and share socially. It is far from obvious that law can, in fact, achieve such basic changes. From another viewpoint, there may be no need to completely squelch all these things. Lessig called this the principle of bovinity: a small number of rules, consistently applied, suffice to control a herd of large animals. There is no need to assure that all people in all contexts continue to behave as couch potatoes for the true scope of the networked information economy to be constrained. It is enough that the core enabling technologies and the core cultural practices are confined to small groups-- some teenagers, some countercultural activists. There have been places like the East Village or the Left Bank throughout the period of the industrial information economy. For the gains in autonomy, democracy, justice, and a critical culture that are described in part II to materialize, the practices of nonmarket information production, individually free creation, and cooperative peer production must become more than fringe practices. They must become a part of life for substantial portions of the networked population. The battle over the institutional ecology of the digitally networked environment is waged precisely over how many individual users will continue to participate in making the networked information environment, and how much of the population of consumers will continue to sit on the couch and passively receive the finished goods of industrial information producers. ,{[pg 386]}, +={Lessig, Lawrence (Larry)} + +2~ INSTITUTIONAL ECOLOGY AND PATH DEPENDENCE +={commercial model of communication:path dependency+5;industrial model of communication:path dependency+5;institutional ecology of digital environment:path dependency+5;policy:path dependency+5;traditional model of communication:path dependency+5} + +The century-old pragmatist turn in American legal thought has led to the development of a large and rich literature about the relationship of law to society and economy. It has both Right and Left versions, and has disciplinary roots in history, economics, sociology, psychology, and critical theory. Explanations are many: some simple, some complex; some analytically tractable, many not. I do not make a substantive contribution to that debate here, but rather build on some of its strains to suggest that the process is complex, and particularly, that the relationship of law to social relations is one of punctuated equilibrium--there are periods of stability followed by periods of upheaval, and then adaptation and stabilization anew, until the next cycle. Hopefully, the preceding ten chapters have provided sufficient reason to think that we are going through a moment of social-economic transformation today, rooted in a technological shock to our basic modes of information, knowledge, and cultural production. Most of this chapter offers a sufficient description of the legislative and judicial battles of the past few years to make the case that we are in the midst of a significant perturbation of some sort. I suggest that the heightened activity is, in fact, a battle, in the domain of law and policy, over the shape of the social settlement that will emerge around the digital computation and communications revolution. + +The basic claim is made up of fairly simple components. First, law affects human behavior on a micromotivational level and on a macro-social-organizational level. This is in contradistinction to, on the one hand, the classical Marxist claim that law is epiphenomenal, and, on the other hand, the increasingly rare simple economic models that ignore transaction costs and institutional barriers and simply assume that people will act in order to maximize their welfare, irrespective of institutional arrangements. Second, the causal relationship between law and human behavior is complex. Simple deterministic models of the form "if law X, then behavior Y" have been used as assumptions, but these are widely understood as, and criticized for being, oversimplifications for methodological purposes. Laws do affect human behavior by changing the payoffs to regulated actions directly. However, they also shape social norms with regard to behaviors, psychological attitudes toward various behaviors, the cultural understanding of actions, and the politics of claims about behaviors and practices. These effects are not all linearly additive. Some push back and nullify the law, some amplify its ,{[pg 387]}, effects; it is not always predictable which of these any legal change will be. Decreasing the length of a "Walk" signal to assure that pedestrians are not hit by cars may trigger wider adoption of jaywalking as a norm, affecting ultimate behavior in exactly the opposite direction of what was intended. This change may, in turn, affect enforcement regarding jaywalking, or the length of the signals set for cars, because the risks involved in different signal lengths change as actual expected behavior changes, which again may feed back on driving and walking practices. Third, and as part of the complexity of the causal relation, the effects of law differ in different material, social, and cultural contexts. The same law introduced in different societies or at different times will have different effects. It may enable and disable a different set of practices, and trigger a different cascade of feedback and countereffects. This is because human beings are diverse in their motivational structure and their cultural frames of meaning for behavior, for law, or for outcomes. Fourth, the process of lawmaking is not exogenous to the effects of law on social relations and human behavior. One can look at positive political theory or at the history of social movements to see that the shape of law itself is contested in society because it makes (through its complex causal mechanisms) some behaviors less attractive, valuable, or permissible, and others more so. The "winners" and the "losers" battle each other to tweak the institutional playing field to fit their needs. As a consequence of these, there is relatively widespread acceptance that there is path dependence in institutions and social organization. That is, the actual organization of human affairs and legal systems is not converging through a process of either Marxist determinism or its neoclassical economics mirror image, "the most efficient institutions win out in the end." Different societies will differ in initial conditions and their historically contingent first moves in response to similar perturbations, and variances will emerge in their actual practices and institutional arrangements that persist over time--irrespective of their relative inefficiency or injustice. + +The term "institutional ecology" refers to this context-dependent, causally complex, feedback-ridden, path-dependent process. An example of this interaction in the area of communications practices is the description in chapter 6 of how the introduction of radio was received and embedded in different legal and economic systems early in the twentieth century. A series of organizational and institutional choices converged in all nations on a broadcast model, but the American broadcast model, the BBC model, and the state-run monopoly radio models created very different journalistic styles, ,{[pg 388]}, consumption expectations and styles, and funding mechanisms in these various systems. These differences, rooted in a series of choices made during a short period in the 1920s, persisted for decades in each of the respective systems. Paul Starr has argued in The Creation of the Media that basic institutional choices--from postage pricing to freedom of the press--interacted with cultural practices and political culture to underwrite substantial differences in the print media of the United States, Britain, and much of the European continent in the late eighteenth and throughout much of the nineteenth centuries.~{ Paul Starr, The Creation of the Media: Political Origins of Modern Communications (New York: Basic Books, 2004). }~ Again, the basic institutional and cultural practices were put in place around the time of the American Revolution, and were later overlaid with the introduction of mass-circulation presses and the telegraph in the mid-1800s. Ithiel de Sola Pool's Technologies of Freedom describes the battle between newspapers and telegraph operators in the United States and Britain over control of telegraphed news flows. In Britain, this resulted in the nationalization of telegraph and the continued dominance of London and The Times. In the United States, it resolved into the pooling model of the Associated Press, based on private lines for news delivery and sharing-- the prototype for newspaper chains and later network-television models of mass media.~{ Ithiel de Sola-Pool, Technologies of Freedom (Cambridge, MA: Belknap Press, 1983), 91-100. }~ The possibility of multiple stable equilibria alongside each other evoked by the stories of radio and print media is a common characteristic to both ecological models and analytically tractable models of path dependency. Both methodological approaches depend on feedback effects and therefore suggest that for any given path divergence, there is a point in time where early actions that trigger feedbacks can cause large and sustained differences over time. +={Pool, Ithiel de Sola;Starr, Paul;radio;patents:see proprietary rights path dependency} + +Systems that exhibit path dependencies are characterized by periods of relative pliability followed by periods of relative stability. Institutions and social practices coevolve through a series of adaptations--feedback effects from the institutional system to social, cultural, and psychological frameworks; responses into the institutional system; and success and failure of various behavioral patterns and belief systems--until a society reaches a stage of relative stability. It can then be shaken out of that stability by external shocks--like Admiral Perry's arrival in Japan--or internal buildup of pressure to a point of phase transition, as in the case of slavery in the United States. Of course, not all shocks can so neatly be categorized as external or internal--as in the case of the Depression and the New Deal. To say that there are periods of stability is not to say that in such periods, everything is just dandy for everyone. It is only to say that the political, social, economic ,{[pg 389]}, settlement is too widely comfortable for, accepted or acquiesced in, by too many agents who in that society have the power to change practices for institutional change to have substantial effects on the range of lived human practices. + +The first two parts of this book explained why the introduction of digital computer-communications networks presents a perturbation of transformative potential for the basic model of information production and exchange in modern complex societies. They focused on the technological, economic, and social patterns that are emerging, and how they differ from the industrial information economy that preceded them. This chapter offers a fairly detailed map of how law and policy are being tugged and pulled in response to these changes. Digital computers and networked communications as a broad category will not be rolled back by these laws. Instead, we are seeing a battle--often but not always self-conscious--over the precise shape of these technologies. More important, we are observing a series of efforts to shape the social and economic practices as they develop to take advantage of these new technologies. + +2~ A FRAMEWORK FOR MAPPING THE INSTITUTIONAL ECOLOGY +={commercial model of communication:mapping, framework for+13;industrial model of communication:mapping, framework for+13;institutional ecology of digital environment:mapping, framework for+13;layers of institutional ecology+13;policy:mapping institutional ecology+13;policy layers+13;traditional model of communication:mapping, framework for+13} + +Two specific examples will illustrate the various levels at which law can operate to shape the use of information and its production and exchange. The first example builds on the story from chapter 7 of how embarrassing internal e-mails from Diebold, the electronic voting machine maker, were exposed by investigative journalism conducted on a nonmarket and peerproduction model. After students at Swarthmore College posted the files, Diebold made a demand under the DMCA that the college remove the materials or face suit for contributory copyright infringement. The students were therefore forced to remove the materials. However, in order keep the materials available, the students asked students at other institutions to mirror the files, and injected them into the eDonkey, BitTorrent, and FreeNet filesharing and publication networks. Ultimately, a court held that the unauthorized publication of files that were not intended for sale and carried such high public value was a fair use. This meant that the underlying publication of the files was not itself a violation, and therefore the Internet service provider was not liable for providing a conduit. However, the case was decided on September 30, 2004--long after the information would have been relevant ,{[pg 390]}, to the voting equipment certification process in California. What kept the information available for public review was not the ultimate vindication of the students' publication. It was the fact that the materials were kept in the public sphere even under threat of litigation. Recall also that at least some of the earlier set of Diebold files that were uncovered by the activist who had started the whole process in early 2003 were zipped, or perhaps encrypted in some form. Scoop, the Web site that published the revelation of the initial files, published--along with its challenge to the Internet community to scour the files and find holes in the system--links to locations in which utilities necessary for reading the files could be found. +={Diebold Election Systems+3;electronic voting machines (case study)+3;networked public sphere:Diebold Election Systems case study+3;policy:Diebold Election Systems case study+3;public sphere:Diebold Election Systems case study+3;voting, electronic+3} + +There are four primary potential points of failure in this story that could have conspired to prevent the revelation of the Diebold files, or at least to suppress the peer-produced journalistic mode that made them available. First, if the service provider--the college, in this case--had been a sole provider with no alternative physical transmission systems, its decision to block the materials under threat of suit would have prevented publication of the materials throughout the relevant period. Second, the existence of peer-to-peer networks that overlay the physical networks and were used to distribute the materials made expunging them from the Internet practically impossible. There was no single point of storage that could be locked down. This made the prospect of threatening other universities futile. Third, those of the original files that were not in plain text were readable with software utilities that were freely available on the Internet, and to which Scoop pointed its readers. This made the files readable to many more critical eyes than they otherwise would have been. Fourth, and finally, the fact that access to the raw materials--the e-mails--was ultimately found to be privileged under the fair-use doctrine in copyright law allowed all the acts that had been performed in the preceding period under a shadow of legal liability to proceed in the light of legality. + +The second example does not involve litigation, but highlights more of the levers open to legal manipulation. In the weeks preceding the American-led invasion of Iraq, a Swedish video artist produced an audio version of Diana Ross and Lionel Richie's love ballad, "Endless Love," lip-synched to news footage of U.S. president George Bush and British prime minister Tony Blair. By carefully synchronizing the lip movements from the various news clips, the video produced the effect of Bush "singing" Richie's part, and Blair "singing" Ross's, serenading each other with an eternal love ballad. No legal action with regard to the release of this short video has been reported. However, ,{[pg 391]}, the story adds two components not available in the context of the Diebold files context. First, it highlights that quotation from video and music requires actual copying of the digital file. Unlike text, you cannot simply transcribe the images or the sound. This means that access to the unencrypted bits is more important than in the case of text. Second, it is not at all clear that using the entire song, unmodified, is a "fair use." While it is true that the Swedish video is unlikely to cut into the market for the original song, there is nothing in the video that is a parody either of the song itself or of the news footage. The video uses "found materials," that is, materials produced by others, to mix them in a way that is surprising, creative, and creates a genuinely new statement. However, its use of the song is much more complete than the minimalist uses of digital sampling in recorded music, where using a mere two-second, three-note riff from another's song has been found to be a violation unless done with a negotiated license.~{ /{Bridgeport Music, Inc. v. Dimension Films}/, 2004 U.S. App. LEXIS 26877. }~ + +Combined, the two stories suggest that we can map the resources necessary for a creative communication, whether produced on a market model or a nonmarket model, as including a number of discrete elements. First, there is the universe of "content" itself: existing information, cultural artifacts and communications, and knowledge structures. These include the song and video footage, or the e-mail files, in the two stories. Second, there is the cluster of machinery that goes into capturing, manipulating, fixing and communicating the new cultural utterances or communications made of these inputs, mixed with the creativity, knowledge, information, or communications capacities of the creator of the new statement or communication. These include the physical devices--the computers used by the students and the video artist, as well as by their readers or viewers--and the physical transmission mechanisms used to send the information or communications from one place to another. In the Diebold case, the firm tried to use the Internet service provider liability regime of the DMCA to cut off the machine storage and mechanical communications capacity provided to the students by the university. However, the "machinery" also includes the logical components-- the software necessary to capture, read or listen to, cut, paste, and remake the texts or music; the software and protocols necessary to store, retrieve, search, and communicate the information across the Internet. + +As these stories suggest, freedom to create and communicate requires use of diverse things and relationships--mechanical devices and protocols, information, cultural materials, and so forth. Because of this diversity of components ,{[pg 392]}, and relationships, the institutional ecology of information production and exchange is a complex one. It includes regulatory and policy elements that affect different industries, draw on various legal doctrines and traditions, and rely on diverse economic and political theories and practices. It includes social norms of sharing and consumption of things conceived of as quite different--bandwidth, computers, and entertainment materials. To make these cohere into a single problem, for several years I have been using a very simple, three-layered representation of the basic functions involved in mediated human communications. These are intended to map how different institutional components interact to affect the answer to the basic questions that define the normative characteristics of a communications system--who gets to say what, to whom, and who decides?~{ Other layer-based abstractions have been proposed, most effectively by Lawrence Solum and Minn Chung, The Layers Principle: Internet Architecture and the Law, University of San Diego Public Law Research Paper No. 55. Their model more closely hews to the OSI layers, and is tailored to being more specifically usable for a particular legal principle--never regulate at a level lower than you need to. I seek a higherlevel abstraction whose role is not to serve as a tool to constrain specific rules, but as a map for understanding the relationships between diverse institutional elements as they relate to the basic problem of how information is produced and exchanged in society. }~ + +These are the physical, logical, and content layers. The physical layer refers to the material things used to connect human beings to each other. These include the computers, phones, handhelds, wires, wireless links, and the like. The content layer is the set of humanly meaningful statements that human beings utter to and with one another. It includes both the actual utterances and the mechanisms, to the extent that they are based on human communication rather than mechanical processing, for filtering, accreditation, and interpretation. The logical layer represents the algorithms, standards, ways of translating human meaning into something that machines can transmit, store, or compute, and something that machines process into communications meaningful to human beings. These include standards, protocols, and software--both general enabling platforms like operating systems, and more specific applications. A mediated human communication must use all three layers, and each layer therefore represents a resource or a pathway that the communication must use or traverse in order to reach its intended destination. In each and every one of these layers, we have seen the emergence of technical and practical capabilities for using that layer on a nonproprietary model that would make access cheaper, less susceptible to control by any single party or class of parties, or both. In each and every layer, we have seen significant policy battles over whether these nonproprietary or open-platform practices will be facilitated or even permitted. Looking at the aggregate effect, we see that at all these layers, a series of battles is being fought over the degree to which some minimal set of basic resources and capabilities necessary to use and participate in constructing the information environment will be available for use on a nonproprietary, nonmarket basis. ,{[pg 393]}, +={content layer of institutional ecology;layers of institutional ecology:content layer|physical layer|see also logical layer of institutional ecology;logical layer of institutional ecology;physical layer of institutional ecology;policy layers:content layer|physical layer} + +In each layer, the policy debate is almost always carried out in local, specific terms. We ask questions like, Will this policy optimize "spectrum management" in these frequencies, or, Will this decrease the number of CDs sold? However, the basic, overarching question that we must learn to ask in all these debates is: Are we leaving enough institutional space for the socialeconomic practices of networked information production to emerge? The networked information economy requires access to a core set of capabilities--existing information and culture, mechanical means to process, store, and communicate new contributions and mixes, and the logical systems necessary to connect them to each other. What nonmarket forms of production need is a core common infrastructure that anyone can use, irrespective of whether their production model is market-based or not, proprietary or not. In almost all these dimensions, the current trajectory of technologicaleconomic-social trends is indeed leading to the emergence of such a core common infrastructure, and the practices that make up the networked information economy are taking advantage of open resources. Wireless equipment manufacturers are producing devices that let users build their own networks, even if these are now at a primitive stage. The open-innovation ethos of the programmer and Internet engineering community produce both free software and proprietary software that rely on open standards for providing an open logical layer. The emerging practices of free sharing of information, knowledge, and culture that occupy most of the discussion in this book are producing an ever-growing stream of freely and openly accessible content resources. The core common infrastructure appears to be emerging without need for help from a guiding regulatory hand. This may or may not be a stable pattern. It is possible that by some happenstance one or two firms, using one or two critical technologies, will be able to capture and control a bottleneck. At that point, perhaps regulatory intervention will be required. However, from the beginning of legal responses to the Internet and up to this writing in the middle of 2005, the primary role of law has been reactive and reactionary. It has functioned as a point of resistance to the emergence of the networked information economy. It has been used by incumbents from the industrial information economies to contain the risks posed by the emerging capabilities of the networked information environment. What the emerging networked information economy therefore needs, in almost all cases, is not regulatory protection, but regulatory abstinence. + +The remainder of this chapter provides a more or less detailed presentation of the decisions being made at each layer, and how they relate to the freedom ,{[pg 394]}, to create, individually and with others, without having to go through proprietary, market-based transactional frameworks. Because so many components are involved, and so much has happened since the mid-1990s, the discussion is of necessity both long in the aggregate and truncated in each particular category. To overcome this expositional problem, I have collected the various institutional changes in table 11.1. For readers interested only in the overarching claim of this chapter--that is, that there is, in fact, a battle over the institutional environment, and that many present choices interact to increase or decrease the availability of basic resources for information production and exchange--table 11.1 may provide sufficient detail. For those interested in a case study of the complex relationship between law, technology, social behavior, and market structure, the discussion of peer-to-peer networks may be particularly interesting to pursue. + +A quick look at table 11.1 reveals that there is a diverse set of sources of openness. A few of these are legal. Mostly, they are based on technological and social practices, including resistance to legal and regulatory drives toward enclosure. Examples of policy interventions that support an open core common infrastructure are the FCC's increased permission to deploy open wireless networks and the various municipal broadband initiatives. The former is a regulatory intervention, but its form is largely removal of past prohibitions on an entire engineering approach to building wireless systems. Municipal efforts to produce open broadband networks are being resisted at the state legislation level, with statutes that remove the power to provision broadband from the home rule powers of municipalities. For the most part, the drive for openness is based on individual and voluntary cooperative action, not law. The social practices of openness take on a quasi-normative face when practiced in standard-setting bodies like the Internet Engineering Task Force (IETF) or the World Wide Web Consortium (W3C). However, none of these have the force of law. Legal devices also support openness when used in voluntaristic models like free software licensing and Creative Commons?type licensing. However, most often when law has intervened in its regulatory force, as opposed to its contractual-enablement force, it has done so almost entirely on the side of proprietary enclosure. + +Another characteristic of the social-economic-institutional struggle is an alliance between a large number of commercial actors and the social sharing culture. We see this in the way that wireless equipment manufacturers are selling into a market of users of WiFi and similar unlicensed wireless devices. We see this in the way that personal computer manufacturers are competing ,{[pg 395]}, over decreasing margins by producing the most general-purpose machines that would be most flexible for their users, rather than machines that would most effectively implement the interests of Hollywood and the recording industry. We see this in the way that service and equipment-based firms, like IBM and Hewlett-Packard (HP), support open-source and free software. The alliance between the diffuse users and the companies that are adapting their business models to serve them as users, instead of as passive consumers, affects the political economy of this institutional battle in favor of openness. On the other hand, security consciousness in the United States has led to some efforts to tip the balance in favor of closed proprietary systems, apparently because these are currently perceived as more secure, or at least more amenable to government control. While orthogonal in its political origins to the battle between proprietary and commons-based strategies for information production, this drive does tilt the field in favor of enclosure, at least at the time of this writing in 2005. +={commercial model of communication:security-related policy;industrial model of communication:security-related policy;institutional ecology of digital environment:security-related policy;policy:security-related;security-related policy;traditional model of communication:security-related policy} + +% paragraph end moved above table + +!_ Table 11.1: Overview of the Institutional Ecology +={content layer of institutional ecology:recent changes;layers of institutional ecology:content layer;logical layer of institutional ecology:recent changes;physical layer of institutional ecology:recent changes;policy layers:content layer} + +table{~h c3; 33; 33; 33; + +. +Enclosure +Openness + +Physical Transport +Broadband trated by FCC as information service +Open wireless networks + +. +DMCA ISP liability +Municipal broadband initiatives + +. +Municipal broadband barred by states +. + +Physical Devices +CBDPTA: regulatory requirements to implement "trusted systems"; private efforts towards the same goal +Standardization + +. +Operator-controlled mobile phones +Fiercely competitive market in commodity components + +Logical Transmission protocols +Privatized DNS/ICANN +TCP/IP + +. +. +IETF + +. +. +p2p networks + +Logical Software +DMCA anticircumvention; Proprietary OS; Web browser; Software Patents +Free Software + +. +. +W3C + +. +. +P2p software widely used + +. +. +social acceptability of widespread hacking of copy protection + +Content +Copyright expansion: "Right to read"; No de minimis digital sampling; "Fair use" narrowed: effect on potential market "commercial" defined broadly; Criminalization; Term extension +Increasing sharing practices and adoption of sharing licensing practices + +. +Contractual enclosure: UCITA +Musicians distribute music freely + +. +Trademark dilution +Creative Commons; other open publication models + +. +Database protection +Widespread social disdain for copyright + +. +Linking and trespass to chattels +International jurisdictional arbitrage + +. +International "harmonization" and trade enforcement of maximal exclusive rights regimes +Early signs of a global access to knowledge movement combining developing nations with free information ecology advocates, both markets and non-market, raising a challenge to the enclosure movement + +}table + +% ,{[pg 396]}, + +Over the past few years, we have also seen that the global character of the Internet is a major limit on effective enclosure, when openness is a function of technical and social practices, and enclosure is a function of law.~{ The first major treatment of this phenomenon was Michael Froomkin, "The Internet as a Source of Regulatory Arbitrage" (1996), http://www.law.miami.edu/froomkin/articles/arbitr.htm. }~ When Napster was shut down in the United States, for example, KaZaa emerged in the Netherlands, from where it later moved to Australia. This force is meeting the countervailing force of international harmonization--a series of bilateral and multilateral efforts to "harmonize" exclusive rights regimes internationally and efforts to coordinate international enforcement. It is difficult at this stage to predict which of these forces will ultimately have the upper hand. It is not too early to map in which direction each is pushing. And it is therefore not too early to characterize the normative implications of the success or failure of these institutional efforts. +={Internet:globality of, effects on policy;policy:global Internet and} + +2~ THE PHYSICAL LAYER +={physical capital for production+26:see also commons and social capital} + +The physical layer encompasses both transmission channels and devices for producing and communicating information. In the broadcast and telephone era, devices were starkly differentiated. Consumers owned dumb terminals. Providers owned sophisticated networks and equipment: transmitters and switches. Consumers could therefore consume whatever providers could produce most efficiently that the providers believed consumers would pay for. Central to the emergence of the freedom of users in the networked environment is an erosion of the differentiation between consumer and provider ,{[pg 397]}, equipment. Consumers came to use general-purpose computers that could do whatever their owners wanted, instead of special-purpose terminals that could only do what their vendors designed them to do. These devices were initially connected over a transmission network--the public phone system-- that was regulated as a common carrier. Common carriage required the network owners to carry all communications without differentiating by type or content. The network was neutral as among communications. The transition to broadband networks, and to a lesser extent the emergence of Internet services on mobile phones, are threatening to undermine that neutrality and nudge the network away from its end-to-end, user-centric model to one designed more like a five-thousand-channel broadcast model. At the same time, Hollywood and the recording industry are pressuring the U.S. Congress to impose regulatory requirements on the design of personal computers so that they can be relied on not to copy music and movies without permission. In the process, the law seeks to nudge personal computers away from being purely general-purpose computation devices toward being devices with factory-defined behaviors vis-a-vis predicted-use patterns, like glorified ` televisions and CD players. The emergence of the networked information economy as described in this book depends on the continued existence of an open transport network connecting general-purpose computers. It therefore also depends on the failure of the efforts to restructure the network on the model of proprietary networks connecting terminals with sufficiently controlled capabilities to be predictable and well behaved from the perspective of incumbent production models. + +3~ Transport: Wires and Wireless +={transport channel policy+16} + +Recall the Cisco white paper quoted in chapter 5. In it, Cisco touted the value of its then new router, which would allow a broadband provider to differentiate streams of information going to and from the home at the packet level. If the packet came from a competitor, or someone the user wanted to see or hear but the owner preferred that the user did not, the packet could be slowed down or dropped. If it came from the owner or an affiliate, it could be speeded up. The purpose of the router was not to enable evil control over users. It was to provide better-functioning networks. America Online (AOL), for example, has been reported as blocking its users from reaching Web sites that have been advertised in spam e-mails. The theory is that if spammers know their Web site will be inaccessible to AOL customers, they will stop.~{ Jonathan Krim, "AOL Blocks Spammers' Web Sites," Washington Post, March 20, 2004, p. A01; also available at http://www.washingtonpost.com/ac2/wp-dyn?page name article&contentId A9449-2004Mar19¬Found true. }~ The ability of service providers to block sites or packets from ,{[pg 398]}, certain senders and promote packets from others may indeed be used to improve the network. However, whether this ability will in fact be used to improve service depends on the extent to which the interests of all users, and particularly those concerned with productive uses of the network, are aligned with the interests of the service providers. Clearly, when in 2005 Telus, Canada's second largest telecommunications company, blocked access to the Web site of the Telecommunications Workers Union for all of its own clients and those of internet service providers that relied on its backbone network, it was not seeking to improve service for those customers' benefit, but to control a conversation in which it had an intense interest. When there is a misalignment, the question is what, if anything, disciplines the service providers' use of the technological capabilities they possess? One source of discipline would be a genuinely competitive market. The transition to broadband has, however, severely constrained the degree of competition in Internet access services. Another would be regulation: requiring owners to treat all packets equally. This solution, while simple to describe, remains highly controversial in the policy world. It has strong supporters and strong opposition from the incumbent broadband providers, and has, as a practical matter, been rejected for the time being by the FCC. The third type of solution would be both more radical and less "interventionist" from the perspective of regulation. It would involve eliminating contemporary regulatory barriers to the emergence of a user-owned wireless infrastructure. It would allow users to deploy their own equipment, share their wireless capacity, and create a "last mile" owned by all users in common, and controlled by none. This would, in effect, put equipment manufacturers in competition to construct the "last mile" of broadband networks, and thereby open up the market in "middle-mile" Internet connection services. +={access:systematically blocked by policy routers;blocked access:policy routers;capacity:policy routers;Cisco policy routers;information flow:controlling with policy routers;information production inputs:systematically blocked by policy routers;inputs to production:systematically blocked by policy routers;policy routers;production inputs:systematically blocked by policy routers;routers, controlling information flow with} + +Since the early 1990s, when the Clinton administration announced its "Agenda for Action" for what was then called "the information superhighway," it was the policy of the United States to "let the private sector lead" in deployment of the Internet. To a greater or lesser degree, this commitment to private provisioning was adopted in most other advanced economies in the world. In the first few years, this meant that investment in the backbone of the Internet was private, and heavily funded by the stock bubble of the late 1990s. It also meant that the last distribution bottleneck--the "last mile"--was privately owned. Until the end of the 1990s, the last mile was made mostly of dial-up connections over the copper wires of the incumbent local exchange carriers. This meant that the physical layer was not only ,{[pg 399]}, proprietary, but that it was, for all practical purposes, monopolistically owned. Why, then, did the early Internet nonetheless develop into a robust, end-to-end neutral network? As Lessig showed, this was because the telephone carriers were regulated as common carriers. They were required to carry all traffic without discrimination. Whether a bit stream came from Cable News Network (CNN) or from an individual blog, all streams-- upstream from the user and downstream to the user--were treated neutrally. + +4~ Broadband Regulation +={access:cable providers, regulation of+4;broadband networks:cable as commons+4|regulation of+4;cable broadband transport, as commons+4;commons:cable providers as+4;transport channel policy:broadband regulation+4;wired communications:policy on+4} + +The end of the 1990s saw the emergence of broadband networks. In the United States, cable systems, using hybrid fiber-coaxial systems, moved first, and became the primary providers. The incumbent local telephone carriers have been playing catch-up ever since, using digital subscriber line (DSL) techniques to squeeze sufficient speed out of their copper infrastructure to remain competitive, while slowly rolling out fiber infrastructure closer to the home. As of 2003, the incumbent cable carriers and the incumbent local telephone companies accounted for roughly 96 percent of all broadband access to homes and small offices.~{ FCC Report on High Speed Services, December 2003 (Appendix to Fourth 706 Report NOI). }~ In 1999-2000, as cable was beginning to move into a more prominent position, academic critique began to emerge, stating that the cable broadband architecture could be manipulated to deviate from the neutral, end-to-end architecture of the Internet. One such paper was written by Jerome Saltzer, one of the authors of the paper that originally defined the "end-to-end" design principle of the Internet in 1980, and Lessig and Mark Lemley wrote another. These papers began to emphasize that cable broadband providers technically could, and had commercial incentive to, stop treating all communications neutrally. They could begin to move from a network where almost all functions are performed by user-owned computers at the ends of the network to one where more is done by provider equipment at the core. The introduction of the Cisco policy router was seen as a stark marker of how things could change. +={Lemley, Mark;Lessig, Lawrence (Larry);Saltzer, Jerome;access: cable providers, regulation of+3} + +The following two years saw significant regulatory battles over whether the cable providers would be required to behave as commons carriers. In particular, the question was whether they would be required to offer competitors nondiscriminatory access to their networks, so that these competitors could compete in Internet services. The theory was that competition would discipline the incumbents from skewing their networks too far away from what users valued as an open Internet. The first round of battles occurred at the municipal level. Local franchising authorities tried to use their power ,{[pg 400]}, over cable licenses to require cable operators to offer open access to their competitors if they chose to offer cable broadband. The cable providers challenged these regulations in courts. The most prominent decision came out of Portland, Oregon, where the Federal Court of Appeals for the Ninth Circuit held that broadband was part information service and part telecommunications service, but not a cable service. The FCC, not the cable franchising authority, had power to regulate it.~{ 216 F.3d 871 (9th Cir. 2000). }~ At the same time, as part of the approval of the AOL-Time Warner merger, the Federal Trade Commission (FTC) required the new company to give at least three competitors open access to its broadband facilities, should AOL be offered cable broadband facilities over Time Warner. + +The AOL-Time Warner merger requirements, along with the Ninth Circuit's finding that cable broadband included a telecommunications component, seemed to indicate that cable broadband transport would come to be treated as a common carrier. This was not to be. In late 2001 and the middle of 2002, the FCC issued a series of reports that would reach the exact opposite result. Cable broadband, the commission held, was an information service, not a telecommunications service. This created an imbalance with the telecommunications status of broadband over telephone infrastructure, which at the time was treated as a telecommunications service. The commission dealt with this imbalance by holding that broadband over telephone infrastructure, like broadband over cable, was now to be treated as an information service. Adopting this definition was perhaps admissible as a matter of legal reasoning, but it certainly was not required by either sound legal reasoning or policy. The FCC's reasoning effectively took the business model that cable operators had successfully used to capture two-thirds of the market in broadband--bundling two discrete functionalities, transport (carrying bits) and higher-level services (like e-mail and Web hosting)--and treated it as though it described the intrinsic nature of "broadband cable" as a service. Because that service included more than just carriage of bits, it could be called an information service. Of course, it would have been as legally admissible, and more technically accurate, to do as the Ninth Circuit had done. That is, to say that cable broadband bundles two distinct services: carriage and information-use tools. The former is a telecommunications service. In June of 2005, the Supreme Court in the Brand X case upheld the FCC's authority to make this legally admissible policy error, upholding as a matter of deference to the expert agency the Commission's position that cable broadband services should be treated as information services.~{ /{National Cable and Telecommunications Association v. Brand X Internet Services}/ (decided June 27, 2005). }~ As a matter ,{[pg 401]}, of policy, the designation of broadband services as "information services" more or less locked the FCC into a "no regulation" approach. As information services, broadband providers obtained the legal power to "edit" their programming, just like any operator of an information service, like a Web site. Indeed, this new designation has placed a serious question mark over whether future efforts to regulate carriage decisions would be considered constitutional, or would instead be treated as violations of the carriers' "free speech" rights as a provider of information. Over the course of the 1990s, there were a number of instances where carriers--particularly cable, but also telephone companies--were required by law to carry some signals from competitors. In particular, cable providers were required to carry over-the-air broadcast television, telephone carriers, in FCC rules called "video dialtone," were required to offer video on a common carriage basis, and cable providers that chose to offer broadband were required to make their infrastructure available to competitors on a common carrier model. In each of these cases, the carriage requirements were subjected to First Amendment scrutiny by courts. In the case of cable carriage of broadcast television, the carriage requirements were only upheld after six years of litigation.~{ /{Turner Broad. Sys. v. FCC}/, 512 U.S. 622 (1994) and /{Turner Broad. Sys. v. FCC}/, 520 U.S. 180 (1997). }~ In cases involving video common carriage requirements applied to telephone companies and cable broadband, lower courts struck down the carriage requirements as violating the telephone and cable companies' free-speech rights.~{ /{Chesapeake & Potomac Tel. Co. v. United States}/, 42 F.3d 181 (4th Cir. 1994); /{Comcast Cablevision of Broward County, Inc. v. Broward County}/, 124 F. Supp. 2d 685, 698 (D. Fla., 2000). }~ To a large extent, then, the FCC's regulatory definition left the incumbent cable and telephone providers--who control 96 percent of broadband connections to home and small offices--unregulated, and potentially constitutionally immune to access regulation and carriage requirements. +={carriage requirements of cable providers+1} + +Since 2003 the cable access debate--over whether competitors should get access to the transport networks of incumbent broadband carriers--has been replaced with an effort to seek behavioral regulation in the form of "network neutrality." This regulatory concept would require broadband providers to treat all packets equally, without forcing them to open their network up to competitors or impose any other of the commitments associated with common carriage. The concept has the backing of some very powerful actors, including Microsoft, and more recently MCI, which still owns much of the Internet backbone, though not the last mile. For this reason, if for no other, it remains as of this writing a viable path for institutional reform that would balance the basic structural shift of Internet infrastructure from a commoncarriage to a privately controlled model. Even if successful, the drive to network neutrality would keep the physical infrastructure a technical bottleneck, ,{[pg 402]}, owned by a small number of firms facing very limited competition, with wide legal latitude for using that control to affect the flow of information over their networks. + +4~ Open Wireless networks +={broadband networks:open wireless networks+5;communities:open wireless networks+5;last mile (wireless)+5;mobile phones:open wireless networks+5;open wireless networks+5;sharing:open wireless networks+5;transport channel policy:open wireless networks+5;wireless communications:open networks+5} + +A more basic and structural opportunity to create an open broadband infrastructure is, however, emerging in the wireless domain. To see how, we must first recognize that opportunities to control the broadband infrastructure in general are not evenly distributed throughout the networked infrastructure. The long-haul portions of the network have multiple redundant paths with no clear choke points. The primary choke point over the physical transport of bits across the Internet is in the last mile of all but the most highly connected districts. That is, the primary bottleneck is the wire or cable connecting the home and small office to the network. It is here that cable and local telephone incumbents control the market. It is here that the high costs of digging trenches, pulling fiber, and getting wires through and into walls pose a prohibitive barrier to competition. And it is here, in the last mile, that unlicensed wireless approaches now offer the greatest promise to deliver a common physical infrastructure of first and last resort, owned by its users, shared as a commons, and offering no entity a bottleneck from which to control who gets to say what to whom. + +As discussed in chapter 6, from the end of World War I and through the mid-twenties, improvements in the capacity of expensive transmitters and a series of strategic moves by the owners of the core patents in radio transmission led to the emergence of the industrial model of radio communications that typified the twentieth century. Radio came to be dominated by a small number of professional, commercial networks, based on high-capital-cost transmitters. These were supported by a regulatory framework tailored to making the primary model of radio utilization for most Americans passive reception, with simple receivers, of commercial programming delivered with high-powered transmitters. This industrial model, which assumed large-scale capital investment in the core of the network and small-scale investments at the edges, optimized for receiving what is generated at the core, imprinted on wireless communications systems both at the level of design and at the level of regulation. When mobile telephony came along, it replicated the same model, using relatively cheap handsets oriented toward an infrastructure-centric deployment of towers. The regulatory model followed Hoover's initial pattern and perfected it. A government agency strictly controlled who may ,{[pg 403]}, place a transmitter, where, with what antenna height, and using what power. The justification was avoidance of interference. The presence of strict licensing was used as the basic assumption in the engineering of wireless systems throughout this period. Since 1959, economic analysis of wireless regulation has criticized this approach, but only on the basis that it inefficiently regulated the legal right to construct a wireless system by using strictly regulated spectrum licenses, instead of creating a market in "spectrum use" rights.~{ The locus classicus of the economists' critique was Ronald Coase, "The Federal Communications Commission," Journal of Law and Economics 2 (1959): 1. The best worked-out version of how these property rights would look remains Arthur S. De Vany et al., "A Property System for Market Allocation of the Electromagnetic Spectrum: A Legal-Economic-Engineering Study," Stanford Law Review 21 (1969): 1499. }~ This critique kept the basic engineering assumptions stable--for radio to be useful, a high-powered transmitter must be received by simple receivers. Given this engineering assumption, someone had to control the right to emit energy in any range of radio frequencies. The economists wanted the controller to be a property owner with a flexible, transferable right. The regulators wanted it to be a licensee subject to regulatory oversight and approval by the FCC. +={capacity:radio sharing+1;radio+1;sharing:radio capacity+1|capacity+1} + +As chapter 3 explained, by the time that legislatures in the United States and around the world had begun to accede to the wisdom of the economists' critique, it had been rendered obsolete by technology. In particular, it had been rendered obsolete by the fact that the declining cost of computation and the increasing sophistication of communications protocols among enduser devices in a network made possible new, sharing-based solutions to the problem of how to allow users to communicate without wires. Instead of having a regulation-determined exclusive right to transmit, which may or may not be subject to market reallocation, it is possible to have a market in smart radio equipment owned by individuals. These devices have the technical ability to share capacity and cooperate in the creation of wireless carriage capacity. These radios can, for example, cooperate by relaying each other's messages or temporarily "lending" their antennae to neighbors to help them decipher messages of senders, without anyone having exclusive use of the spectrum. Just as PCs can cooperate to create a supercomputer in SETI@Home by sharing their computation, and a global-scale, peer-to-peer data-storage and retrieval system by sharing their hard drives, computationally intensive radios can share their capacity to produce a local wireless broadband infrastructure. Open wireless networks allow users to install their own wireless device--much like the WiFi devices that have become popular. These devices then search automatically for neighbors with similar capabilities, and self-configure into a high-speed wireless data network. Reaching this goal does not, at this point, require significant technological innovation. The technology is there, though it does require substantial engineering ,{[pg 404]}, effort to implement. The economic incentives to develop such devices are fairly straightforward. Users already require wireless local networks. They will gain added utility from extending their range for themselves, which would be coupled with the possibility of sharing with others to provide significant wide-area network capacity for whose availability they need not rely on any particular provider. Ultimately, it would be a way for users to circumvent the monopoly last mile and recapture some of the rents they currently pay. Equipment manufacturers obviously have an incentive to try to cut into the rents captured by the broadband monopoly/oligopoly by offering an equipment-embedded alternative. + +My point here is not to consider the comparative efficiency of a market in wireless licenses and a market in end-user equipment designed for sharing channels that no one owns. It is to highlight the implications of the emergence of a last mile that is owned by no one in particular, and is the product of cooperation among neighbors in the form of, "I'll carry your bits if you carry mine." At the simplest level, neighbors could access locally relevant information directly, over a wide-area network. More significant, the fact that users in a locality coproduced their own last-mile infrastructure would allow commercial Internet providers to set up Internet points of presence anywhere within the "cloud" of the locale. The last mile would be provided not by these competing Internet service providers, but by the cooperative efforts of the residents of local neighborhoods. Competitors in providing the "middle mile"--the connection from the last mile to the Internet cloud-- could emerge, in a way that they cannot if they must first lay their own last mile all the way to each home. The users, rather than the middle-mile providers, shall have paid the capital cost of producing the local transmission system--their own cooperative radios. The presence of a commons-based, coproduced last mile alongside the proprietary broadband network eliminates the last mile as a bottleneck for control over who speaks, with what degree of ease, and with what types of production values and interactivity. + +The development of open wireless networks, owned by their users and focused on sophisticated general-purpose devices at their edges also offers a counterpoint to the emerging trend among mobile telephony providers to offer a relatively limited and controlled version of the Internet over the phones they sell. Some wireless providers are simply offering mobile Internet connections throughout their networks, for laptops. Others, however, are using their networks to allow customers to use their ever-more-sophisticated phones to surf portions of the Web. These latter services diverge in their ,{[pg 405]}, styles. Some tend to be limited, offering only a set of affiliated Web sites rather than genuine connectivity to the Internet itself with a general-purpose device. Sprint's "News" offerings, for example, connects users to CNNtoGo, ABCNews.com, and the like, but will not enable a user to reach the blogosphere to upload a photo of protesters being manhandled, for example. So while mobility in principle increases the power of the Web, and text messaging puts e-mail-like capabilities everywhere, the effect of the implementations of the Web on phones is more ambiguous. It could be more like a Web-enabled reception device than a genuinely active node in a multidirectional network. Widespread adoption of open wireless networks would give mobile phone manufacturers a new option. They could build into the mobile telephones the ability to tap into open wireless networks, and use them as general-purpose access points to the Internet. The extent to which this will be a viable option for the mobile telephone manufacturers depends on how much the incumbent mobile telephone service providers, those who purchased their licenses at high-priced auctions, will resist this move. Most users buy their phones from their providers, not from general electronic equipment stores. Phones are often tied to specific providers in ways that users are not able to change for themselves. In these conditions, it is likely that mobile providers will resist the competition from free open wireless systems for "data minutes" by refusing to sell dual-purpose equipment. Worse, they may boycott manufacturers who make mobile phones that are also general-purpose Web-surfing devices over open wireless networks. How that conflict will go, and whether users would be willing to carry a separate small device to enable them to have open Internet access alongside their mobile phone, will determine the extent to which the benefits of open wireless networks will be transposed into the mobile domain. Normatively, that outcome has significant implications. From the perspective of the citizen watchdog function, ubiquitous availability of capture, rendering, and communication capabilities are important. From the perspective of personal autonomy as informed action in context, extending openness to mobile units would provide significant advantages to allow individuals to construct their own information environment on the go, as they are confronting decisions and points of action in their daily lives. + +4~ Municipal Broadband Initiatives +={broadband networks:municipal initiatives+2;commons:municipal broadband initiatives+2;communities:municipal broadband initiatives+2;municipal broadband initiatives+2;open wireless networks:municipal broadband initiatives+2;transport channel policy:municipal broadband initiatives+2;wireless communications:municipal broadband initiatives+2} + +One alternative path for the emergence of basic physical information transport infrastructure on a nonmarket model is the drive to establish municipal ,{[pg 406]}, systems. These proposed systems would not be commons-based in the sense that they would not be created by the cooperative actions of individuals without formal structure. They would be public, like highways, sidewalks, parks, and sewage systems. Whether they are, or are not, ultimately to perform as commons would depend on how they would be regulated. In the United States, given the First Amendment constraints on government preferring some speech to other speech in public fora, it is likely that municipal systems would be managed as commons. In this regard, they would have parallel beneficial characteristics to those of open wireless systems. The basic thesis underlying municipal broadband initiatives is similar to that which has led some municipalities to create municipal utilities or transportation hubs. Connectivity has strong positive externalities. It makes a city's residents more available for the information economy and the city itself a more attractive locale for businesses. Most of the efforts have indeed been phrased in these instrumental terms. The initial drive has been the creation of municipal fiber-to-the-home networks. The town of Bristol, Virginia, is an example. It has a population of slightly more than seventeen thousand. Median household income is 68 percent of the national median. These statistics made it an unattractive locus for early broadband rollout by incumbent providers. However, in 2003, Bristol residents had one of the most advanced residential fiber-to-the-home networks in the country, available for less than forty dollars a month. Unsurprisingly, therefore, the city had broadband penetration rivaling many of the top U.S. markets with denser and wealthier populations. The "miracle" of Bristol is that the residents of the town, fed up with waiting for the local telephone and cable companies, built their own, municipally owned network. Theirs has become among the most ambitious and successful of more than five hundred publicly owned utilities in the United States that offer high-speed Internet, cable, and telephone services to their residents. Some of the larger cities--Chicago and Philadelphia, most prominently--are moving as of this writing in a similar direction. The idea in Chicago is that basic "dark fiber"--that is, the physical fiber going to the home, but without the electronics that would determine what kinds of uses the connectivity could be put to--would be built by the city. Access to use this entirely neutral, high-capacity platform would then be open to anyone-- commercial and noncommercial alike. The drive in Philadelphia emphasizes the other, more recently available avenue--wireless. The quality of WiFi and the widespread adoption of wireless techniques have moved other municipalities to adopt wireless or mixed-fiber wireless strategies. Municipalities are ,{[pg 407]}, proposing to use publicly owned facilities to place wireless points of access around the town, covering the area in a cloud of connectivity and providing open Internet access from anywhere in the city. Philadelphia's initiative has received the widest public attention, although other, smaller cities are closer to having a wireless cloud over the city already. +={Bristol, Virginia+1;Philadelphia, wireless initiatives in+1} + +The incumbent broadband providers have not taken kindly to the municipal assault on their monopoly (or oligopoly) profits. When the city of Abilene, Texas, tried to offer municipal broadband service in the late-1990s, Southwestern Bell (SBC) persuaded the Texas legislature to pass a law that prohibited local governments from providing high-speed Internet access. The town appealed to the FCC and the Federal Court of Appeals in Washington, D.C. Both bodies held that when Congress passed the 1996 Telecommunications Act, and said that, "no state . . . regulation . . . may prohibit . . . the ability of any entity to provide . . . telecommunications service," municipalities were not included in the term "any entity." As the D.C. Circuit put it, "any" might have some significance "depending on the speaker's tone of voice," but here it did not really mean "any entity," only some. And states could certainly regulate the actions of municipalities, which are treated in U.S. law as merely their subdivisions or organs.~{ /{City of Abilene, Texas v. Federal Communications Commission}/, 164 F3d 49 (1999). }~ Bristol, Virginia, had to fight off similar efforts to prohibit its plans through state law before it was able to roll out its network. In early 2004, the U.S. Supreme Court was presented with the practice of state preemption of municipal broadband efforts and chose to leave the municipalities to fend for themselves. A coalition of Missouri municipalities challenged a Missouri law that, like the Texas law, prohibited them from stepping in to offer their citizens broadband service. The Court of the Appeals for the Eighth Circuit agreed with the municipalities. The 1996 Act, after all, was intended precisely to allow anyone to compete with the incumbents. The section that prohibited states from regulating the ability of "any entity" to enter the telecommunications service market precisely anticipated that the local incumbents would use their clout in state legislatures to thwart the federal policy of introducing competition into the local loop. Here, the incumbents were doing just that, but the Supreme Court reversed the Eighth Circuit decision. Without dwelling too much on the wisdom of allowing citizens of municipalities to decide for themselves whether they want a municipal system, the court issued an opinion that was technically defensible in terms of statutory interpretation, but effectively invited the incumbent broadband providers to put their lobbying efforts into persuading state legislators to prohibit municipal efforts.~{ /{Nixon v. Missouri Municipal League}/, 541 U.S. 125 (2004). }~ After ,{[pg 408]}, Philadelphia rolled out its wireless plan, it was not long before the Pennsylvania legislature passed a similar law prohibiting municipalities from offering broadband. While Philadelphia's plan itself was grandfathered, future expansion from a series of wireless "hot spots" in open area to a genuine municipal network will likely be challenged under the new state law. Other municipalities in Pennsylvania are entirely foreclosed from pursuing this option. In this domain, at least as of 2005, the incumbents seem to have had some substantial success in containing the emergence of municipal broadband networks as a significant approach to eliminating the bottleneck in local network infrastructure. +={Abilene, Texas} + +3~ Devices +={computers:policy on physical devices+7;devices (physical), policy regarding+7:see also computers;hardware:policy on physical devices+7;hardware regulations+7;personal computers:policy on physical devises+7;physical machinery and computers:policy on physical devices+7} + +The second major component of the physical layer of the networked environment is comprised of the devices people use to compute and communicate. Personal computers, handhelds, game consoles, and to a lesser extent, but lurking in the background, televisions, are the primary relevant devices. In the United States, personal computers are the overwhelmingly dominant mode of connectivity. In Europe and Japan, mobile handheld devices occupy a much larger space. Game consoles are beginning to provide an alternative computationally intensive device, and Web-TV has been a background idea for a while. The increasing digitization of both over-the-air and cable broadcast makes digital TV a background presence, if not an immediate alternative avenue, to Internet communications. None of these devices are constructed by a commons--in the way that open wireless networks, free software, or peer-produced content can be. Personal computers, however, are built on open architecture, using highly standardized commodity components and open interfaces in an enormously competitive market. As a practical matter, therefore, PCs provide an open-platform device. Handhelds, game consoles, and digital televisions, on the other hand, use more or less proprietary architectures and interfaces and are produced in a less-competitive market-- not because there is no competition among the manufacturers, but because the distribution chain, through the service providers, is relatively controlled. The result is that configurations and features can more readily be customized for personal computers. New uses can be developed and implemented in the hardware without permission from any owner of a manufacturing or distribution outlet. As handhelds grow in their capabilities, and personal computers collapse in size, the two modes of communicating are bumping into each other's turf. At the moment, there is no obvious regulatory push to ,{[pg 409]}, nudge one or the other out. Observing the evolution of these markets therefore has less to do with policy. As we look at these markets, however, it is important to recognize that the outcome of this competition is not normatively neutral. The capabilities made possible by personal computers underlie much of the social and economic activity described throughout this book. Proprietary handhelds, and even more so, game consoles and televisions, are, presently at least, platforms that choreograph their use. They structure their users' capabilities according to design requirements set by their producers and distributors. A physical layer usable with general-purpose computers is one that is pliable and open for any number of uses by individuals, in a way that a physical layer used through more narrowly scripted devices is not. +={proprietary rights:openness of personal computers+1} + +The major regulatory threat to the openness of personal computers comes from efforts to regulate the use of copyrighted materials. This question is explored in greater depth in the context of discussing the logical layer. Here, I only note that peer-to-peer networks, and what Fisher has called "promiscuous copying" on the Internet, have created a perceived threat to the very existence of the major players in the industrial cultural production system-- Hollywood and the recording industry. These industries are enormously adept at driving the regulation of their business environment--the laws of copyright, in particular. As the threat of copying and sharing of their content by users increased, these industries have maintained a steady pressure on Congress, the courts, and the executive to ratchet up the degree to which their rights are enforced. As we will see in looking at the logical and content layers, these efforts have been successful in changing the law and pushing for more aggressive enforcement. They have not, however, succeeded in suppressing widespread copying. Copying continues, if not entirely unabated, certainly at a rate that was impossible a mere six years ago. +={Fisher, William (Terry);entertainment industry:hardware regulation and+5} + +One major dimension of the effort to stop copying has been a drive to regulate the design of personal computers. Pioneered by Senator Fritz Hollings in mid-2001, a number of bills were drafted and lobbied for: the first was the Security Systems Standards and Certification Act; the second, Consumer Broadband and Digital Television Promotion Act (CBDTPA), was actually introduced in the Senate in 2002.~{ Bill Number S. 2048, 107th Congress, 2nd Session. }~ The basic structure of these proposed statutes was that they required manufacturers to design their computers to be "trusted systems." The term "trusted," however, had a very odd meaning. The point is that the system, or computer, can be trusted to perform in certain predictable ways, irrespective of what its owner wishes. ,{[pg 410]}, +={Hollings, Fritz+3;CBDPTA (Consumer Broadband and Digital Television Promotion Act);Security Systems Standards and Certification Act;trusted systems, computers as+1} + +The impulse is trivial to explain. If you believe that most users are using their personal computers to copy films and music illegally, then you can think of these users as untrustworthy. In order to be able to distribute films and music in the digital environment that is trustworthy, one must disable the users from behaving as they would choose to. The result is a range of efforts at producing what has derisively been called "the Fritz chip": legal mandates that systems be designed so that personal computers cannot run programs that are not certified properly to the chip. The most successful of these campaigns was Hollywood's achievement in persuading the FCC to require manufacturers of all devices capable of receiving digital television signals from the television set to comply with a particular "trusted system" standard. This "broadcast flag" regulation was odd in two distinct ways. First, the rule-making documents show quite clearly that this was a rule driven by Hollywood, not by the broadcasters. This is unusual because the industries that usually play a central role in these rule makings are those regulated by the FCC, such as broadcasters and cable systems. Second, the FCC was not, in fact, regulating the industries that it normally has jurisdiction to regulate. Instead, the rule applied to any device that could use digital television signals after they had already been received in the home. In other words, they were regulating practically every computer and digital-video-capable consumer electronics device imaginable. The Court of Appeals ultimately indeed struck down the regulation as wildly beyond the agency's jurisdiction, but the broadcast flag nonetheless is the closest that the industrial information economy incumbents have come to achieving regulatory control over the design of computers. +={broadcast flag regulation} + +The efforts to regulate hardware to fit the distribution model of Hollywood and the recording industry pose a significant danger to the networked information environment. The core design principle of general-purpose computers is that they are open for varied uses over time, as their owners change their priorities and preferences. It is this general-purpose character that has allowed personal computers to take on such varied roles since their adoption in the 1980s. The purpose of the Fritz chip?style laws is to make computing devices less flexible. It is to define a range of socially, culturally, and economically acceptable uses of the machines that are predicted by the legislature and the industry actors, and to implement factory-defined capabilities that are not flexible, and do not give end users the freedom to change the intended use over time and to adapt to changing social and economic conditions and opportunities. ,{[pg 411]}, + +The political economy of this regulatory effort, and similar drives that have been more successful in the logical and content layers, is uncharacteristic of American politics. Personal computers, software, and telecommunications services are significantly larger industries than Hollywood and the recording industry. Verizon alone has roughly similar annual revenues to the entire U.S. movie industry. Each one of the industries that the content industries have tried to regulate has revenues several times greater than do the movie and music industries combined. The relative successes of Hollywood and the recording industry in regulating the logical and content layers, and the viability of their efforts to pass a Fritz chip law, attest to the remarkable cultural power of these industries and to their lobbying prowess. The reason is likely historical. The software and hardware industries in particular have developed mostly outside of the regulatory arena; only around 2002 did they begin to understand that what goes on in Washington could really hurt them. The telecommunications carriers, which are some of the oldest hands at the regulatory game, have had some success in preventing regulations that would force them to police their users and limit Internet use. However, the bulk of their lobbying efforts have been aimed elsewhere. The institutions of higher education, which have found themselves under attack for not policing their students' use of peer-to-peer networks, have been entirely ineffective at presenting their cultural and economic value and the importance of open Internet access to higher education, as compared to the hypothetical losses of Hollywood and the recording industry. Despite the past successes of these entertainment-industry incumbents, two elements suggest that physical device regulation of the CBDPTA form will not follow the same successful path of similar legislation at the logical layer, the DMCA of 1998. The first element is the fact that, unlike in 1998, the technology industries have now realized that Hollywood is seeking to severely constrain their design space. Industries with half a trillion dollars a year in revenues tend to have significant pull in American and international lawmaking bodies, even against industries, like movies and sound recording, that have high cultural visibility but no more than seventy-five billion dollars a year in revenues. The second is that in 1998, there were very few public advocacy organizations operating in the space of intellectual property and trying to play watchdog and to speak for the interests of users. By 2004, a number of organizations dedicated to users' rights in the digital environment emerged to make that conflict clear. The combination of well-defined business interests with increasing representation of user interests creates a political landscape ,{[pg 412]}, in which it will be difficult to pass sweeping laws to limit the flexibility of personal computers. The most recent iteration of the Fritz chip agenda, the Inducing Infringement of Copyrights Act of 2004 was indeed defeated, for the time being, by a coalition of high-technology firms and people who would have formerly been seen as left-of-center media activists. + +Regulation of device design remains at the frontier of the battles over the institutional ecology of the digital environment. It is precisely ubiquitous access to basic, general-purpose computers, as opposed to glorified televisions or telephone handsets, that lies at the very heart of the networked information economy. And it is therefore precisely ubiquitous access to such basic machines that is a precondition to the improvements in freedom and justice that we can see emerging in the digital environment. + +2~ THE LOGICAL LAYER +={logical layer of institutional ecology+40} + +At the logical layer, most of the efforts aimed to secure a proprietary model and a more tightly controlled institutional ecology follow a similar pattern to the efforts to regulate device design. They come from the needs of the content-layer businesses--Hollywood and the recording industry, in particular. Unlike the physical transmission layer, which is historically rooted in a proprietary but regulated organizational form, most of the logical layer of the Internet has its roots in open, nonproprietary protocols and standards. The broad term "logical layer" combines a wide range of quite different functionalities. The most basic logical components--the basic protocols and standards for Internet connectivity--have from the beginning of the Internet been open, unowned, and used in common by all Internet users and applications. They were developed by computer scientists funded primarily with public money. The basic Internet Protocol (IP) and Transmission Control Protocol (TCP) are open for all to use. Most of the basic standards for communicating were developed in the IETF, a loosely defined standardssetting body that works almost entirely on a meritocratic basis--a body that Michael Froomkin once suggested is the closest earthly approximation of Habermas's ideal speech situation. Individual computer engineers contributed irrespective of formal status or organizational affiliation, and the organization ran on the principle that Dave Clark termed "rough consensus and running code." The World Wide Web protocols and authoring conventions HTTP and HTML were created, and over the course of their lives, shepherded by Tim Berners Lee, who has chosen to dedicate his efforts to making ,{[pg 413]}, the Web a public good rather than cashing in on his innovation. The sheer technical necessity of these basic protocols and the cultural stature of their achievement within the engineering community have given these open processes and their commonslike institutional structure a strong gravitational pull on the design of other components of the logical layer, at least insofar as it relates to the communication side of the Internet. +={Clark, Dave;Froomkin, Michael;Habermas, Jurgen} + +This basic open model has been in constant tension with the proprietary models that have come to use and focus on the Internet in the past decade. By the mid-1990s, the development of graphical-user interfaces to the Web drove Internet use out of universities and into homes. Commercial actors began to look for ways to capture the commercial value of the human potential of the World Wide Web and the Internet, while Hollywood and the recording industry saw the threat of one giant worldwide copying machine looming large. At the same time, the Clinton administration's search of "third-way" liberal agenda manifested in these areas as a commitment to "let the private sector lead" in deployment of the Internet, and an "intellectual property" policy based on extreme protectionism for the exclusive-rightsdependent industries aimed, in the metaphors of that time, to get cars on the information superhighway or help the Internet become a celestial jukebox. The result was a series of moves designed to make the institutional ecology of the Internet more conducive to the proprietary model. + +3~ The Digital Millennium Copyright Act of 1998 +={Digital Millennium Copyright Act (DMCA)+7;DMCA (Digital Millennium Copyright Act)+7;logical layer of institutional ecology:DMCA (Digital Millennium Copyright Act)+7;proprietary rights:Digital Millennium Copyright Act (DMCA)+7} + +No piece of legislation more clearly represents the battle over the institutional ecology of the digital environment than the pompously named Digital Millennium Copyright Act of 1998 (DMCA). The DMCA was the culmination of more than three years of lobbying and varied efforts, both domestically in the United States and internationally, over the passage of two WIPO treaties in 1996. The basic worldview behind it, expressed in a 1995 white paper issued by the Clinton administration, was that in order for the National Information Infrastructure (NII) to take off, it had to have "content," and that its great promise was that it could deliver the equivalent of thousands of channels of entertainment. This would only happen, however, if the NII was made safe for delivery of digital content without making it easily copied and distributed without authorization and without payment. The two core recommendations of that early road map were focused on regulating technology and organizational responsibility. First, law was to regulate ,{[pg 414]}, the development of technologies that might defeat any encryption or other mechanisms that the owners of copyrighted materials would use to prevent use of their works. Second, Internet service providers were to be held accountable for infringements made by their users, so that they would have an incentive to police their systems. Early efforts to pass this agenda in legislation were resisted, primarily by the large telecommunications service providers. The Baby Bells--U.S. regional telephone companies that were created from the breakup of AT&T (Ma Bell) in 1984, when the telecommunications company was split up in order to introduce a more competitive structure to the telecom industry--also played a role in partly defeating implementation of this agenda in the negotiations toward new WIPO treaties in 1996, treaties that ultimately included a much-muted version of the white paper agenda. Nonetheless, the following year saw significant lobbying for "implementing legislation" to bring U.S. law in line with the requirements of the new WIPO treaties. This new posture placed the emphasis of congressional debates on national industrial policy and the importance of strong protection to the export activities of the U.S. content industries. It was enough to tip the balance in favor of passage of the DMCA. The Internet service provider liability portions bore the marks of a hard-fought battle. The core concerns of the telecommunications companies were addressed by creating an explicit exemption for pure carriage of traffic. Furthermore, providers of more sophisticated services, like Web hosting, were provided immunity from liability for simple failure to police their system actively. In exchange, however, service providers were required to respond to requests by copyright owners by immediately removing materials that the copyright owners deemed infringing. This was the provision under which Diebold forced Swarthmore to remove the embarrassing e-mail records from the students' Web sites. The other, more basic, element of the DMCA was the anticircumvention regime it put in place. Pamela Samuelson has described the anticircumvention provisions of the DMCA as the result of a battle between Hollywood and Silicon Valley. At the time, unlike the telecommunications giants who were born of and made within the regulatory environment, Silicon Valley did not quite understand that what happened in Washington, D.C., could affect its business. The Act was therefore an almost unqualified victory for Hollywood, moderated only by a long list of weak exemptions for various parties that bothered to show up and lobby against it. +={Samuelson, Pamela;anticircumvention provisions, DMCA+4;encryption circumvention+3} + +The central feature of the DMCA, a long and convoluted piece of legislation, ,{[pg 415]}, is its anticircumvention and antidevice provisions. These provisions made it illegal to use, develop, or sell technologies that had certain properties. Copyright owners believed that it would be possible to build strong encryption into media products distributed on the Internet. If they did so successfully, the copyright owners could charge for digital distribution and users would not be able to make unauthorized copies of the works. If this outcome was achieved, the content industries could simply keep their traditional business model--selling movies or music as discrete packages--at lower cost, and with a more refined ability to extract the value users got from using their materials. The DMCA was intended to make this possible by outlawing technologies that would allow users to get around, or circumvent, the protection measures that the owners of copyrighted materials put in place. At first blush, this proposition sounds entirely reasonable. If you think of the content of a music file as a home, and of the copy protection mechanism as its lock, then all the DMCA does is prohibit the making and distributing of burglary tools. This is indeed how the legislation was presented by its supporters. From this perspective, even the relatively draconian consequences spelled out in the DMCA's criminal penalties seem defensible. +={antidevice provisions, DMCA} + +There are two distinct problems with this way of presenting what the DMCA does. First, copyrights are far from coextensive with real property. There are many uses of existing works that are permissible to all. They are treated in copyright law like walking on the sidewalk or in a public park is treated in property law, not like walking across the land of a neighbor. This is true, most obviously, for older works whose copyright has expired. This is true for certain kinds of uses of a work, like quoting it for purposes of criticism or parody. Encryption and other copy-protection techniques are not limited by the definition of legal rights. They can be used to protect all kinds of digital files--whether their contents are still covered by copyright or not, and whether the uses that users wish to make of them are privileged or not. Circumvention techniques, similarly, can be used to circumvent copyprotection mechanisms for purposes both legitimate and illegitimate. A barbed wire cutter, to borrow Boyle's metaphor, could be a burglary tool if the barbed wire is placed at the property line. However, it could equally be a tool for exercising your privilege if the private barbed wire has been drawn around public lands or across a sidewalk or highway. The DMCA prohibited all wire cutters, even though there were many uses of these technologies that could be used for legal purposes. Imagine a ten-year-old girl doing her homework on the history of the Holocaust. She includes in her multimedia paper ,{[pg 416]}, a clip from Steven Spielberg's film, Schindler's List, in which a little girl in red, the only color image on an otherwise black-and-white screen, walks through the pandemonium of a deportation. In her project, the child painstakingly superimposes her own face over that of the girl in the film for the entire sequence, frame by frame. She calls the paper, "My Grandmother." There is little question that most copyright lawyers (not retained by the owner of the movie) would say that this use would count as a "fair use," and would be privileged under the Copyright Act. There is also little question that if Schindler's List was only available in encrypted digital form, a company would have violated the DMCA if it distributed a product that enabled the girl to get around the encryption in order to use the snippet she needed, and which by traditional copyright law she was permitted to use. It is in the face of this concern about overreaching by those who employ technological protection measures that Julie Cohen argued for the "right to hack"--to circumvent code that impedes one's exercise of one's privileged uses. +={Boyle, James;Cohen, Julie;Speilberg, Steven} + +The second problem with the DMCA is that its definitions are broad and malleable. Simple acts like writing an academic paper on how the encryption works, or publishing a report on the Web that tells users where they can find information about how to circumvent a copy-protection mechanism could be included in the definition of providing a circumvention device. Edward Felten is a computer scientist at Princeton. As he was preparing to publish an academic paper on encryption, he received a threatening letter from the Recording Industry Association of America (RIAA), telling him that publication of the paper constituted a violation of the DMCA. The music industry had spent substantial sums on developing encryption for digital music distribution. In order to test the system before it actually entrusted music with this wrapper, the industry issued a public challenge, inviting cryptographers to try to break the code. Felten succeeded in doing so, but did not continue to test his solutions because the industry required that, in order to continue testing, he sign a nondisclosure agreement. Felten is an academic, not a businessperson. He works to make knowledge public, not to keep it secret. He refused to sign the nondisclosure agreement, and prepared to publish his initial findings, which he had made without entering any nondisclosure agreement. As he did so, he received the RIAA's threatening letter. In response, he asked a federal district court to declare that publication of his findings was not a violation of the DMCA. The RIAA, realizing that trying to silence academic publication of a criticism of the ,{[pg 417]}, weakness of its approach to encryption was not the best litigation stance, moved to dismiss the case by promising it would never bring suit.~{ /{Felten v. Recording Indust. Assoc. of America Inc.}/, No. CV- 01-2669 (D.N.J. June 26, 2001). }~ +={Felten, Edward;music industry:DMCA violations;RIAA (Recording Industry Association of America)} + +Another case did not end so well for the defendant. It involved a suit by the eight Hollywood studios against a hacker magazine, 2600. The studios sought an injunction prohibiting 2600 from making available a program called DeCSS, which circumvents the copy-protection scheme used to control access to DVDs, named CSS. CSS prevents copying or any use of DVDs unauthorized by the vendor. DeCSS was written by a fifteen-year-old Norwegian named Jon Johanson, who claimed (though the district court discounted his claim) to have written it as part of an effort to create a DVD player for GNU/Linux-based machines. A copy of DeCSS, together with a story about it was posted on the 2600 site. The industry obtained an injunction against 2600, prohibiting not only the posting of DeCSS, but also its linking to other sites that post the program--that is, telling users where they can get the program, rather than actually distributing a circumvention program. That decision may or may not have been correct on the merits. There are strong arguments in favor of the proposition that making DVDs compatible with GNU/Linux systems is a fair use. There are strong arguments that the DMCA goes much farther than it needs to in restricting speech of software programmers and Web authors, and so is invalid under the First Amendment. The court rejected these arguments. +={Johanson, Jon;DeCSS program} + +The point here is not, however, to revisit the legal correctness of that decision, but to illustrate the effects of the DMCA as an element in the institutional ecology of the logical layer. The DMCA is intended as a strong legal barrier to certain technological paths of innovation at the logical layer of the digital environment. It is intended specifically to preserve the "thing-" or "goods"-like nature of entertainment products--music and movies, in particular. As such, it is intended to, and does to some extent, shape the technological development toward treating information and culture as finished goods, rather than as the outputs of social and communications processes that blur the production-consumption distinction. It makes it more difficult for individuals and nonmarket actors to gain access to digital materials that the technology, the market, and the social practices, left unregulated, would have made readily available. It makes practices of cutting and pasting, changing and annotating existing cultural materials harder to do than the technology would have made possible. I have argued elsewhere that when Congress self-consciously makes it harder for individuals to use whatever technology is available to them, to speak as they please and to whomever ,{[pg 418]}, they please, in the interest of some public goal (in this case, preservation of Hollywood and the recording industry for the public good), it must justify its acts under the First Amendment. However, the important question is not one of U.S. constitutional law. + +The more general claim, true for any country that decides to enforce a DMCA-like law, is that prohibiting technologies that allow individuals to make flexible and creative uses of digital cultural materials burdens the development of the networked information economy and society. It burdens individual autonomy, the emergence of the networked public sphere and critical culture, and some of the paths available for global human development that the networked information economy makes possible. All these losses will be incurred in expectation of improvements in creativity, even though it is not at all clear that doing so would actually improve, even on a simple utilitarian calculus, the creative production of any given country or region. Passing a DMCA-type law will not by itself squelch the development of nonmarket and peer production. Indeed, many of these technological and social-economic developments emerged and have flourished after the DMCA was already in place. It does, however, represent a choice to tilt the institutional ecology in favor of industrial production and distribution of cultural packaged goods, at the expense of commons-based relations of sharing information, knowledge, and culture. Twentieth-century cultural materials provide the most immediate and important source of references and images for contemporary cultural creation. Given the relatively recent provenance of movies, recorded music, and photography, much of contemporary culture was created in these media. These basic materials for the creation of contemporary multimedia culture are, in turn, encoded in formats that cannot simply be copied by hand, as texts might be even in the teeth of technical protection measures. The capacity to copy mechanically is a necessary precondition for the capacity to quote and combine existing materials of these kinds into new cultural statements and conversational moves. Preserving the capacity of industrial cultural producers to maintain a hermetic seal on the use of materials to which they own copyright can be bought only at the cost of disabling the newly emerging modes of cultural production from quoting and directly building upon much of the culture of the last century. + +3~ The Battle over Peer-to-Peer Networks +={file-sharing networks+15;logical layer of institutional ecology+15;network topology:peer-to-peer networks+15;p2p networks+15;peer-to-peer networks+15;structure of network:peer-to-peer networks+15;topology, network:peer-to-peer networks+15} + +The second major institutional battle over the technical and social trajectory of Internet development has revolved around peer-to-peer (p2p) networks. I ,{[pg 419]}, offer a detailed description of it here, but not because I think it will be the make-it-or-break-it of the networked information economy. If any laws have that determinative a power, they are the Fritz chip and DMCA. However, the peer-to-peer legal battle offers an excellent case study of just how difficult it is to evaluate the effects of institutional ecology on technology, economic organization, and social practice. + +Peer-to-peer technologies as a global phenomenon emerged from Napster and its use by tens of millions of users around the globe for unauthorized sharing of music files. In the six years since their introduction, p2p networks have developed robust and impressive technical capabilities. They have been adopted by more than one hundred million users, and are increasingly applied to uses well beyond music sharing. These developments have occurred despite a systematic and aggressive campaign of litigation and criminal enforcement in a number of national systems against both developers and users. Technically, p2p networks are algorithms that run on top of the Internet and allow users to connect directly from one end user's machine to another. In theory, that is how the whole Internet works--or at least how it worked when there were a small number of computers attached to it. In practice, most users connect through an Internet service provider, and most content available for access on the Internet was available on a server owned and operated by someone distinct from its users. In the late 1990s, there were rudimentary utilities that allowed one user to access information stored on the computer of another, but no widely used utility allowed large numbers of individuals to search each other's hard drives and share data directly from one user to another. Around 1998-1999, early Internet music distribution models, like MP3.com, therefore provided a centralized distribution point for music. This made them highly vulnerable to legal attack. Shawn Fanning, then eighteen years old, was apparently looking for ways to do what teenagers always do--share their music with friends--in a way that would not involve a central point of storing and copying. He developed Napster--the first major, widely adopted p2p technology. Unlike MP3.com, users of Napster could connect their computers directly--one person could download a song stored on the computer of another without mediation. All that the Napster site itself did, in addition to providing the end-user software, was to provide a centralized directory of which songs resided on which machine. There is little disagreement in the literature that it is an infringement under U.S. copyright law for any given user to allow others to duplicate copyrighted music from his or her computer to theirs. The centralizing role of Napster ,{[pg 420]}, in facilitating these exchanges, alongside a number of ill-considered statements by some of its principals, were enough to render the company liable for contributory copyright infringement. +={Fanning, Shawn;MP3.com;Napster+1:see also peer-to-peer networks} + +The genie of p2p technology and the social practice of sharing music, however, were already out of the bottle. The story of the following few years, to the extent that one can tell a history of the present and the recent past, offers two core insights. First, it shows how institutional design can be a battleground over the conditions of cultural production in the digital environment. Second, it exposes the limits of the extent to which the institutional ecology can determine the ultimate structure of behavior at a moment of significant and rapid technological and social perturbation. Napster's judicial closure provided no real respite for the recording industry. As Napster was winding down, Gnutella, a free software alternative, had already begun to replace it. Gnutella did not depend on any centralized component, not even to facilitate search. This meant that there was no central provider. There was no firm against which to bring action. Even if there were, it would be impossible to "shut down" use of the program. Gnutella was a freestanding program that individual users could install. Once installed, its users could connect to anyone else who had installed the program, without passing through any choke point. There was no central server to shut down. Gnutella had some technical imperfections, but these were soon overcome by other implementations of p2p. The most successful improvement over Gnutella was the FastTrack architecture, now used by Kazaa, Grokster, and other applications, including some free software applications. It improves on the search capabilities of Gnutella by designating some users as "supernodes," which store information about what songs are available in their "neighborhood." This avoids Gnutella's primary weakness, the relatively high degree of network overhead traffic. The supernodes operate on an ad hoc basis. They change based on whose computer is available with enough storage and bandwidth. They too, therefore, provide no litigation target. Other technologies have developed to speed up or make more robust the distribution of files, including BitTorrent, eDonkey and its free-software relative eMule, and many others. Within less than two years of Napster's closure, more people were using these various platforms to share files than Napster had users at its height. Some of these new firms found themselves again under legal assault--both in the United States and abroad. +={FastTrak architecture;Gnutella} + +As the technologies grew and developed, and as the legal attacks increased, the basic problem presented by the litigation against technology manufacturers ,{[pg 421]}, became evident. Peer-to-peer techniques can be used for a wide range of uses, only some of which are illegal. At the simplest level, they can be used to distribute music that is released by an increasing number of bands freely. These bands hope to get exposure that they can parley into concert performances. As recorded music from the 1950s begins to fall into the public domain in Europe and Australia, golden oldies become another legitimate reason to use p2p technologies. More important, p2p systems are being adapted to different kinds of uses. Chapter 7 discusses how FreeNet is being used to disseminate subversive documents, using the persistence and robustness of p2p networks to evade detection and suppression by authoritarian regimes. BitTorrent was initially developed to deal with the large file transfers required for free software distributions. BitTorrent and eDonkey were both used by the Swarthmore students when their college shut down their Internet connection in response to Diebold's letter threatening action under the service provider liability provisions of the DMCA. The founders of KaZaa have begun to offer an Internet telephony utility, Skype, which allows users to make phone calls from one computer to another for free, and from their computer to the telephone network for a small fee. Skype is a p2p technology. +={KaZaa+1;Skype utility} + +In other words, p2p is developing as a general approach toward producing distributed data storage and retrieval systems, just as open wireless networks and distributed computing are emerging to take advantage of personal devices to produce distributed communications and computation systems, respectively. As the social and technological uses of p2p technologies grow and diversify, the legal assault on all p2p developers becomes less sustainable-- both as a legal matter and as a social-technical matter. KaZaa was sued in the Netherlands, and moved to Australia. It was later subject to actions in Australia, but by that time, the Dutch courts found the company not to be liable to the music labels. Grokster, a firm based in the United States, was initially found to have offered a sufficiently diverse set of capabilities, beyond merely facilitating copyright infringements, that the Court of Appeals for the Ninth Circuit refused to find it liable simply for making and distributing its software. The Supreme Court reversed that holding, however, returning the case to the lower courts to find, factually, whether Grokster had actual intent to facilitate illegal copying.~{ /{Metro-Goldwyn-Mayer v. Grokster, Ltd.}/ (decided June 27, 2005). }~ Even if Grokster ultimately loses, the FastTrack network architecture will not disappear; clients (that is, end user software) will continue to exist, including free software clients. Perhaps it will be harder to raise money for businesses located within the United States ,{[pg 422]}, to operate in this technological space, because the new rule announced by the Supreme Court in Grokster raises the risk of litigation for innovators in the p2p space. However, as with encryption regulation in the mid-1990s, it is not clear that the United States can unilaterally prevent the development of technology for which there is worldwide demand and with regard to whose development there is globally accessible talent. +={Grokster} + +How important more generally are these legal battles to the organization of cultural production in the networked environment? There are two components to the answer: The first component considers the likely effect of the legal battles on the development and adoption of the technology and the social practice of promiscuous copying. In this domain, law seems unlikely to prevent the continued development of p2p technologies. It has, however, had two opposite results. First, it has affected the path of the technological evolution in a way that is contrary to the industry interests but consistent with increasing distribution of the core functions of the logical layer. Second, it seems to have dampened somewhat the social practice of file sharing. The second component assumes that a range of p2p technologies will continue to be widely adopted, and that some significant amount of sharing will continue to be practiced. The question then becomes what effect this will have on the primary cultural industries that have fought this technology-- movies and recorded music. Within this new context, music will likely change more radically than movies, and the primary effect will be on the accreditation function--how music is recognized and adopted by fans. Film, if it is substantially affected, will likely be affected largely by a shift in tastes. + +MP3.com was the first major music distribution site shut down by litigation. From the industry's perspective, it should have represented an entirely unthreatening business model. Users paid a subscription fee, in exchange for which they were allowed to download music. There were various quirks and kinks in this model that made it unattractive to the music industry at the time: the industry did not control this major site, and therefore had to share the rents from the music, and more important, there was no effective control over the music files once downloaded. However, from the perspective of 2005, MP3.com was a vastly more manageable technology for the sound recording business model than a free software file-sharing client. MP3.com was a single site, with a corporate owner that could be (and was) held responsible. It controlled which user had access to what files--by requiring each user to insert a CD into the computer to prove that he or she had bought the CD--so that usage could in principle be monitored and, if ,{[pg 423]}, desired, compensation could be tied to usage. It did not fundamentally change the social practice of choosing music. It provided something that was more like a music-on-demand jukebox than a point of music sharing. As a legal matter, MP3.com's infringement was centered on the fact that it stored and delivered the music from this central server instead of from the licensed individual copies. In response to the shutdown of MP3.com, Napster redesigned the role of the centralized mode, and left storage in the hands of users, keeping only the directory and search functions centralized. When Napster was shut down, Gnutella and later FastTrack further decentralized the system, offering a fully decentralized, ad hoc reconfigurable cataloging and search function. Because these algorithms represent architecture and a protocol-based network, not a particular program, they are usable in many different implementations. This includes free software programs like MLDonkey--which is a nascent file-sharing system that is aimed to run simultaneously across most of the popular file-sharing networks, including FastTrack, BitTorrent, and Overnet, the eDonkey network. These programs are now written by, and available from, many different jurisdictions. There is no central point of control over their distribution. There is no central point through which to measure and charge for their use. They are, from a technical perspective, much more resilient to litigation attack, and much less friendly to various possible models of charging for downloads or usage. From a technological perspective, then, the litigation backfired. It created a network that is less susceptible to integration into an industrial model of music distribution based on royalty payments per user or use. +={MP3.com} + +It is harder to gauge, however, whether the litigation was a success or a failure from a social-practice point of view. There have been conflicting reports on the effects of file sharing and the litigation on CD sales. The recording industry claimed that CD sales were down because of file sharing, but more independent academic studies suggested that CD sales were not independently affected by file sharing, as opposed to the general economic downturn.~{ See Felix Oberholzer and Koleman Strumpf, "The Effect of File Sharing on Record Sales" (working paper), http://www.unc.edu/cigar/papers/FileSharing_March2004.pdf. }~ The Pew project on Internet and American Life user survey data suggests that the litigation strategy against individual users has dampened the use of file sharing, though file sharing is still substantially more common among users than paying for files from the newly emerging payper-download authorized services. In mid-2003, the Pew study found that 29 percent of Internet users surveyed said they had downloaded music files, identical to the percentage of users who had downloaded music in the first quarter of 2001, the heyday of Napster. Twenty-one percent responded that ,{[pg 424]}, they allow others to download from their computer.~{ Mary Madden and Amanda Lenhart, "Music Downloading, File-Sharing, and Copyright" (Pew, July 2003), http://www.pewinternet.org/pdfs/PIP_Copyright_Memo.pdf/. }~ This meant that somewhere between twenty-six and thirty-five million adults in the United States alone were sharing music files in mid-2003, when the recording industry began to sue individual users. Of these, fully two-thirds expressly stated that they did not care whether the files they downloaded were or were not copyrighted. By the end of 2003, five months after the industry began to sue individuals, the number of respondents who admitted to downloading music dropped by half. During the next few months, these numbers increased slightly to twenty-three million adults, remaining below the mid-2003 numbers in absolute terms and more so in terms of percentage of Internet users. Of those who had at one point downloaded, but had stopped, roughly a third said that the threat of suit was the reason they had stopped file sharing.~{ Lee Rainie and Mary Madden, "The State of Music Downloading and File-Sharing Online" (Pew, April 2004), http://www.pewinternet.org/pdfs/PIP_Filesharing_April_ 04.pdf. }~ During this same period, use of pay online music download services, like iTunes, rose to about 7 percent of Internet users. Sharing of all kinds of media files--music, movies, and games--was at 23 percent of adult Internet users. These numbers do indeed suggest that, in the aggregate, music downloading is reported somewhat less often than it was in the past. It is hard to tell how much of this reduction is due to actual behavioral change as compared to an unwillingness to self-report on behavior that could subject one to litigation. It is impossible to tell how much of an effect the litigation has had specifically on sharing by younger people--teenagers and college students--who make up a large portion of both CD buyers and file sharers. Nonetheless, the reduction in the total number of self-reported users and the relatively steady percentage of total Internet users who share files of various kinds suggest that the litigation does seem to have had a moderating effect on file sharing as a social practice. It has not, however, prevented file sharing from continuing to be a major behavioral pattern among one-fifth to one-quarter of Internet users, and likely a much higher proportion in the most relevant populations from the perspective of the music and movie industries--teenagers and young adults. +={Pew studies} + +From the perspective of understanding the effects of institutional ecology, then, the still-raging battle over peer-to-peer networks presents an ambiguous picture. One can speculate with some degree of confidence that, had Napster not been stopped by litigation, file sharing would have been a much wider social practice than it is today. The application was extremely easy to use; it offered a single network for all file-sharing users, thereby offering an extremely diverse and universal content distribution network; and for a brief period, it was a cultural icon and a seemingly acceptable social practice. The ,{[pg 425]}, period of regrouping that followed its closure; the imperfect interfaces of early Gnutella clients; the relative fragmentation of file sharing into a number of networks, each with a smaller coverage of content than was present; and the fear of personal litigation risk are likely to have limited adoption. On the other hand, in the longer run, the technological developments have created platforms that are less compatible with the industrial model, and which would be harder to integrate into a stable settlement for music distribution in the digital environment. +={entertainment industry:peer-to-peer networks and+6} + +Prediction aside, it is not immediately obvious why peer-to-peer networks contribute to the kinds of nonmarket production and creativity that I have focused on as the core of the networked information economy. At first blush, they seem simply to be mechanisms for fans to get industrially produced recorded music without paying musicians. This has little to do with democratization of creativity. To see why p2p networks nonetheless are a part of the development of a more attractive cultural production system, and how they can therefore affect the industrial organization of cultural production, we can look first at music, and then, independently, at movies. The industrial structure of each is different, and the likely effects of p2p networks are different in each case. +={music industry+3} + +Recorded music began with the phonograph--a packaged good intended primarily for home consumption. The industry that grew around the ability to stamp and distribute records divided the revenue structure such that artists have been paid primarily from live public performances and merchandizing. Very few musicians, including successful recording artists, make money from recording royalties. The recording industry takes almost all of the revenues from record and CD sales, and provides primarily promotion and distribution. It does not bear the capital cost of the initial musical creation; artists do. With the declining cost of computation, that cost has become relatively low, often simply a computer owned by artists themselves, much as they own their instruments. Because of this industrial structure, peer-to-peer networks are a genuine threat to displacing the entire recording industry, while leaving musicians, if not entirely unaffected, relatively insulated from the change and perhaps mildly better off. Just as the recording industry stamps CDs, promotes them on radio stations, and places them on distribution chain shelves, p2p networks produce the physical and informational aspects of a music distribution system. However, p2p networks do so collaboratively, by sharing the capacity of their computers, hard drives, and network connections. Filtering and accreditation, or "promotion," are produced on the ,{[pg 426]}, model that Eben Moglen called "anarchist distribution." Jane's friends and friends of her friends are more likely to know exactly what music would make her happy than are recording executives trying to predict which song to place, on which station and which shelf, to expose her to exactly the music she is most likely to buy in a context where she would buy it. Filesharing systems produce distribution and "promotion" of music in a socialsharing modality. Alongside peer-produced music reviews, they could entirely supplant the role of the recording industry. +={Moglen, Eben} + +Musicians and songwriters seem to be relatively insulated from the effects of p2p networks, and on balance, are probably affected positively. The most comprehensive survey data available, from mid-2004, shows that 35 percent of musicians and songwriters said that free downloads have helped their careers. Only 5 percent said it has hurt them. Thirty percent said it increased attendance at concerts, 21 percent that it helped them sell CDs and other merchandise, and 19 percent that it helped them gain radio playing time. These results are consistent with what one would expect given the revenue structure of the industry, although the study did not separate answers out based on whether the respondent was able to live entirely or primarily on their music, which represented only 16 percent of the respondents to the survey. In all, it appears that much of the actual flow of revenue to artists-- from performances and other sources--is stable. This is likely to remain true even if the CD market were entirely displaced by peer-to-peer distribution. Musicians will still be able to play for their dinner, at least not significantly less so than they can today. Perhaps there will be fewer millionaires. Perhaps fewer mediocre musicians with attractive physiques will be sold as "geniuses," and more talented musicians will be heard than otherwise would have, and will as a result be able to get paying gigs instead of waiting tables or "getting a job." But it would be silly to think that music, a cultural form without which no human society has existed, will cease to be in our world if we abandon the industrial form it took for the blink of a historical eye that was the twentieth century. Music was not born with the phonograph, nor will it die with the peer-to-peer network. The terms of the debate, then, are about cultural policy; perhaps about industrial policy. Will we get the kind of music we want in this system, whoever "we" are? Will American recording companies continue to get the export revenue streams they do? Will artists be able to live from making music? Some of these arguments are serious. Some are but a tempest in a monopoly-rent teapot. It is clear that a technological change has rendered obsolete a particular mode of distributing ,{[pg 427]}, information and culture. Distribution, once the sole domain of market-based firms, now can be produced by decentralized networks of users, sharing instantiations of music they deem attractive with others, using equipment they own and generic network connections. This distribution network, in turn, allows a much more diverse range of musicians to reach much more finely grained audiences than were optimal for industrial production and distribution of mechanical instantiations of music in vinyl or CD formats. The legal battles reflect an effort by an incumbent industry to preserve its very lucrative business model. The industry has, to this point, delayed the transition to peer-based distribution, but it is unclear for how long or to what extent it will be successful in preventing the gradual transition to userbased distribution. + +The movie industry has a different industrial structure and likely a different trajectory in its relations to p2p networks. First and foremost, movies began as a relatively high capital cost experience good. Making a movie, as opposed to writing a song, was something that required a studio and a large workforce. It could not be done by a musician with a guitar or a piano. Furthermore, movies were, throughout most of their history, collective experience goods. They were a medium for public performance experienced outside of the home, in a social context. With the introduction of television, it was easy to adapt movie revenue structure by delaying release of films to television viewing until after demand for the movie at the theater declined, as well as to develop their capabilities into a new line of business--television production. However, theatrical release continued to be the major source of revenue. When video came along, the movie industry cried murder in the Sony Betamax case, but actually found it quite easy to work videocassettes into yet another release window, like television, and another medium, the made-for-video movie. Digital distribution affects the distribution of cultural artifacts as packaged goods for home consumption. It does not affect the social experience of going out to the movies. At most, it could affect the consumption of the twenty-year-old mode of movie distribution: videos and DVDs. As recently as the year 2000, when the Hollywood studios were litigating the DeCSS case, they represented to the court that home video sales were roughly 40 percent of revenue, a number consistent with other reports.~{ See 111 F.Supp.2d at 310, fns. 69-70; PBS Frontline report, http://www.pbs.org/ wgbh/pages/frontline/shows/hollywood/business/windows.html. }~ The remainder, composed of theatrical release revenues and various television releases, remains reasonably unthreatened as a set of modes of revenue capture to sustain the high-production value, high-cost movies that typify Hollywood. Forty percent is undoubtedly a large chunk, but unlike ,{[pg 428]}, the recording industry, which began with individually owned recordings, the movie industry preexisted videocassettes and DVDs, and is likely to outlive them even if p2p networks were to eliminate that market entirely, which is doubtful. + +The harder and more interesting question is whether cheap high-quality digital video-capture and editing technologies combined with p2p networks for efficient distribution could make film a more diverse medium than it is now. The potential hypothetical promise of p2p networks like BitTorrent is that they could offer very robust and efficient distribution networks for films outside the mainstream industry. Unlike garage bands and small-scale music productions, however, this promise is as yet speculative. We do not invest in public education for film creation, as we do in the teaching of writing. Most of the raw materials out of which a culture of digital capture and amateur editing could develop are themselves under copyright, a subject we return to when considering the content layer. There are some early efforts, like atomfilms.com, at short movie distribution. The technological capabilities are there. It is possible that if films older than thirty or even fifty years were released into the public domain, they would form the raw material out of which a new cultural production practice would form. If it did, p2p networks would likely play an important role in their distribution. However, for now, although the sound recording and movie industries stand shoulder to shoulder in the lobbying efforts, their circumstances and likely trajectory in relation to file sharing are likely quite different. + +The battles over p2p and the DMCA offer some insight into the potential, but also the limits, of tweaking the institutional ecology. The ambition of the industrial cultural producers in both cases was significant. They sought to deploy law to shape emerging technologies and social practices to make sure that the business model they had adopted for the technologies of film and sound recording continued to work in the digital environment. Doing so effectively would require substantial elimination of certain lines of innovation, like certain kinds of decryption and p2p networks. It would require outlawing behavior widely adopted by people around the world--social sharing of most things that they can easily share--which, in the case of music, has been adopted by tens of millions of people around the world. The belief that all this could be changed in a globally interconnected network through the use of law was perhaps naïve. Nonetheless, the legal efforts have had some impact on social practices and on the ready availability of materials ,{[pg 429]}, for free use. The DMCA may not have made any single copyright protection mechanism hold up to the scrutiny of hackers and crackers around the Internet. However, it has prevented circumvention devices from being integrated into mainstream platforms, like the Windows operating system or some of the main antivirus programs, which would have been "natural" places for them to appear in consumer markets. The p2p litigation did not eliminate the p2p networks, but it does seem to have successfully dampened the social practice of file sharing. One can take quite different views of these effects from a policy perspective. However, it is clear that they are selfconscious efforts to tweak the institutional ecology of the digital environment in order to dampen the most direct threats it poses for the twentieth-century industrial model of cultural production. In the case of the DMCA, this is done at the direct cost of making it substantially harder for users to make creative use of the existing stock of audiovisual materials from the twentieth century--materials that are absolutely central to our cultural selfunderstanding at the beginning of the twenty-first century. In the case of p2p networks, the cost to nonmarket production is more indirect, and may vary across different cultural forms. The most important long-term effect of the pressure that this litigation has put on technology to develop decentralized search and retrieval systems may, ultimately and ironically, be to improve the efficiency of radically decentralized cultural production and distribution, and make decentralized production more, rather than less, robust to the vicissitudes of institutional ecology. + +3~ The Domain Name System: From Public Trust to the Fetishism of Mnemonics +={domain name system+5;Internet:Web addresses+5;logical layer of institutional ecology:domain name system+5;Web:domain name addresses+5;wireless communications:domain name addresses+5} + +Not all battles over the role of property-like arrangements at the logical layer originate from Hollywood and the recording industry. One of the major battles outside of the ambit of the copyright industries concerned the allocation and ownership of domain names. At stake was the degree to which brand name ownership in the material world could be leveraged into attention on the Internet. Domain names are alphanumeric mnemonics used to represent actual Internet addresses of computers connected to the network. While 130.132.51.8 is hard for human beings to remember, www.yale.edu is easier. The two strings have identical meaning to any computer connected to the Internet--they refer to a server that responds to World Wide Web queries for Yale University's main site. Every computer connected to the Internet has a unique address, either permanent or assigned by a provider ,{[pg 430]}, for the session. That requires that someone distribute addresses--both numeric and mnemonic. Until 1992, names and numbers were assigned on a purely first-come, first-served basis by Jon Postel, one of the very first developers of the Internet, under U.S. government contract. Postel also ran a computer, called the root server, to which all computers would turn to ask the numeric address of letters.mnemonic.edu, so they could translate what the human operator remembered as the address into one their machine could use. Postel called this system "the Internet Assigned Numbers Authority, IANA," whose motto he set as, "Dedicated to preserving the central coordinating functions of the global Internet for the public good." In 1992, Postel got tired of this coordinating job, and the government contracted it to a private firm called Network Solutions, Inc., or NSI. As the number of applications grew, and as the administration sought to make this system pay for itself, NSI was allowed in 1995 to begin to charge fees for assigning names and numbers. At about the same time, widespread adoption of a graphical browser made using the World Wide Web radically simpler and more intuitive to the uninitiated. These two developments brought together two forces to bear on the domain name issue--each with a very different origin and intent. The first force consisted of the engineers who had created and developed the Internet, led by Postel, who saw the domain name space to be a public trust and resisted its commercialization by NSI. The second force consisted of trademark owners and their lawyers, who suddenly realized the potential for using control over domain names to extend the value of their brand names to a new domain of trade--e-commerce. These two forces placed the U.S. government under pressure to do two things: (1) release the monopoly that NSI--a for-profit corporation--had on the domain name space, and (2) find an efficient means of allowing trademark owners to control the use of alphanumeric strings used in their trademarks as domain names. Postel initially tried to "take back the root" by asking various regional domain name servers to point to his computer, instead of to the one maintained by NSI in Virginia. This caused uproar in the government, and Postel was accused of attacking and hijacking the Internet! His stature and passion, however, placed significant weight on the side of keeping the naming system as an open public trust. That position came to an abrupt end with his death in 1996. By late 1996, a self-appointed International Ad Hoc Committee (IAHC) was formed, with the blessing of the Internet Society (ISOC), a professional membership society for individuals and organizations involved in Internet planning. IAHC's membership was about half intellectual property ,{[pg 431]}, lawyers and half engineers. In February 1997, IAHC came out with a document called the gTLD-MoU (generic top-level domain name memorandum of understanding). Although the product of a small group, the gTLD-MoU claimed to speak for "The Internet Community." Although it involved no governments, it was deposited "for signature" with the International Telecommunications Union (ITU). Dutifully, some 226 organizations--Internet services companies, telecommunications providers, consulting firms, and a few chapters of the ISOC signed on. Section 2 of the gTLD-MoU, announcing its principles, reveals the driving forces of the project. While it begins with the announcement that the top-level domain space "is a public resource and is subject to the public trust," it quickly commits to the principle that "the current and future Internet name space stakeholders can benefit most from a self-regulatory and market-oriented approach to Internet domain name registration services." This results in two policy principles: (1) commercial competition in domain name registration by releasing the monopoly NSI had, and (2) protecting trademarks in the alphanumeric strings that make up the second-level domain names. The final, internationalizing component of the effort--represented by the interests of the WIPO and ITU bureaucracies--was attained by creating a Council of Registrars as a Swiss corporation, and creating special relationships with the ITU and the WIPO. +={IAHC (International Ad Hock Committee);IANA (Internet Assigned Numbers Authority);NSI (Network Solutions. Inc.)+1;Postel, Jon;branding:domain names and+4;gTLD-MoU document;proprietary rights:domain names+4} + +None of this institutional edifice could be built without the U.S. government. In early 1998, the administration responded to this ferment with a green paper, seeking the creation of a private, nonprofit corporation registered in the United States to take on management of the domain name issue. By its own terms, the green paper responded to concerns of the domain name registration monopoly and of trademark issues in domain names, first and foremost, and to some extent to increasing clamor from abroad for a voice in Internet governance. Despite a cool response from the European Union, the U.S. government proceeded to finalize a white paper and authorize the creation of its preferred model--the private, nonprofit corporation. Thus was born the Internet Corporation for Assigned Names and Numbers (ICANN) as a private, nonprofit California corporation. Over time, it succeeded in large measure in loosening NSI's monopoly on domain name registration. Its efforts on the trademark side effectively created a global preemptive property right. Following an invitation in the U.S. government's white paper for ICANN to study the proper approach to trademark enforcement in the domain name space, ICANN and WIPO initiated a process ,{[pg 432]}, that began in July 1998 and ended in April 1999. As Froomkin describes his experience as a public-interest expert in this process, the process feigned transparency and open discourse, but was in actuality an opaque staff-driven drafting effort.~{ A. M. Froomkin, "Semi-Private International Rulemaking: Lessons Learned from the WIPO Domain Name Process," http://www.personal.law.miami.edu/froomkin/ articles/TPRC99.pdf. }~ The result was a very strong global property right available to trademark owners in the alphanumeric strings that make up domain names. This was supported by binding arbitration. Because it controlled the root server, ICANN could enforce its arbitration decisions worldwide. If ICANN decides that, say, the McDonald's fast-food corporation and not a hypothetical farmer named Old McDonald owned www.mcdonalds.com, all computers in the world would be referred to the corporate site, not the personal one. Not entirely satisfied with the degree to which the ICANNWIPO process protected their trademarks, some of the major trademark owners lobbied the U.S. Congress to pass an even stricter law. This law would make it easier for the owners of commercial brand names to obtain domain names that include their brand, whether or not there was any probability that users would actually confuse sites like the hypothetical Old McDonald's with that of the fast-food chain. +={Froomkin, Michael;ICANN (Internet Corporation for Assigned Names and Numbers)} + +The degree to which the increased appropriation of the domain name space is important is a function of the extent to which the cultural practice of using human memory to find information will continue to be widespread. The underlying assumption of the value of trademarked alphanumeric strings as second-level domain names is that users will approach electronic commerce by typing in "www.brandname.com" as their standard way of relating to information on the Net. This is far from obviously the most efficient solution. In physical space, where collecting comparative information on price, quality, and so on is very costly, brand names serve an important informational role. In cyberspace, where software can compare prices, and product-review services that link to vendors are easy to set up and cheap to implement, the brand name becomes an encumbrance on good information, not its facilitator. If users are limited, for instance, to hunting around as to whether information they seek is on www.brandname.com, www.brand_ name.com, or www.brand.net, name recognition from the real world becomes a bottleneck to e-commerce. And this is precisely the reason why owners of established marks sought to assure early adoption of trademarks in domain names--it assures users that they can, in fact, find their accustomed products on the Web without having to go through search algorithms that might expose them to comparison with pesky start-up competitors. As search engines become better and more tightly integrated into the basic ,{[pg 433]}, browser functionality, the idea that a user who wants to buy from Delta Airlines would simply type "www.delta.com," as opposed to plugging "delta airlines" into an integrated search toolbar and getting the airline as a first hit becomes quaint. However, quaint inefficient cultural practices can persist. And if this indeed is one that will persist, then the contours of the property right matter. As the law has developed over the past few years, ownership of a trademark that includes a certain alphanumeric string almost always gives the owner of the trademark a preemptive right in using the letters and numbers incorporated in that mark as a domain name. + +Domain name disputes have fallen into three main categories. There are cases of simple arbitrage. Individuals who predicted that having a domain name with the brand name in it would be valuable, registered such domain names aplenty, and waited for the flat-footed brand name owners to pay them to hand over the domain. There is nothing more inefficient about this form of arbitrage than any other. The arbitrageurs "reserved" commercially valuable names so they could be auctioned, rather than taken up by someone who might have a non-negotiable interest in the name--for example, someone whose personal name it was. These arbitrageurs were nonetheless branded pirates and hijackers, and the consistent result of all the cases on domain names has been that the corporate owners of brand names receive the domain names associated with their brands without having to pay the arbitrageurs. Indeed, the arbitrageurs were subject to damage judgments. A second kind of case involved bona fide holders of domain names that made sense for them, but were nonetheless shared with a famous brand name. One child nicknamed "Pokey" registered "pokey.org," and his battle to keep that name against a toy manufacturer that sold a toy called "pokey" became a poster child for this type of case. Results have been more mixed in this case, depending on how sympathetic the early registrant was. The third type of case--and in many senses, most important from the perspective of freedom to participate not merely as a consumer in the networked environment, but as a producer--involves those who use brand names to draw attention to the fact that they are attacking the owner of the brand. One well-known example occurred when Verizon Wireless was launched. The same hacker magazine involved in the DeCSS case, 2600, purchased the domain name "verizonreallysucks.com" to poke fun at Verizon. In response to a letter requiring that they give up the domain name, the magazine purchased the domain name "VerizonShouldSpendMoreTimeFixingItsNetworkAndLess MoneyOnLawyers.com." These types of cases have again met with varying ,{[pg 434]}, degrees of sympathy from courts and arbitrators under the ICANN process, although it is fairly obvious that using a brand name in order to mock and criticize its owner and the cultural meaning it tries to attach to its mark is at the very core of fair use, cultural criticism, and free expression. +={arbitrage, domain names} + +The point here is not to argue for one type of answer or another in terms of trademark law, constitutional law, or the logic of ICANN. It is to identify points of pressure where the drive to create proprietary rights is creating points of control over the flow of information and the freedom to make meaning in the networked environment. The domain name issue was seen by many as momentous when it was new. ICANN has drawn a variety of both yearnings and fears as a potential source of democratic governance for the Internet or a platform for U.S. hegemony. I suspect that neither of these will turn out to be true. The importance of property rights in domain names is directly based on the search practices of users. Search engines, directories, review sites, and referrals through links play a large role in enabling users to find information they are interested in. Control over the domain name space is unlikely to provide a real bottleneck that will prevent both commercial competitors and individual speakers from drawing attention to their competition or criticism. However, the battle is indicative of the efforts to use proprietary rights in a particular element of the institutional ecology of the logical layer--trademarks in domain names--to tilt the environment in favor of the owners of famous brand names, and against individuals, noncommercial actors, and smaller, less-known competitors. + +3~ The Browser Wars +={browsers+2;Internet:Web browsers+2;Internet Explorer browser+2;logical layer of institutional ecology:Web browsers+2;Microsoft Corporation:browser wars+2;Web:browser wars+2;wireless communications:browser wars+2} + +A much more fundamental battle over the logical layer has occurred in the browser wars. Here, the "institutional" component is not formal institutions, like laws or regulations, but technical practice institutions--the standards for Web site design. Unlike on the network protocol side, the device side of the logical layer--the software running personal computers--was thoroughly property-based by the mid-1990s. Microsoft's dominance in desktop operating systems was well established, and there was strong presence of other software publishers in consumer applications, pulling the logical layer toward a proprietary model. In 1995, Microsoft came to perceive the Internet and particularly the World Wide Web as a threat to its control over the desktop. The user-side Web browser threatened to make the desktop a more open environment that would undermine its monopoly. Since that time, the two pulls--the openness of the nonproprietary network and the closed nature ,{[pg 435]}, of the desktop--have engaged in a fairly energetic tug-of-war over the digital environment. This push-me-pull-you game is played out both in the domain of market share, where Microsoft has been immensely successful, and in the domain of standard setting, where it has been only moderately successful. In market share, the story is well known and has been well documented in the Microsoft antitrust litigation. Part of the reason that it is so hard for a new operating system to compete with Microsoft's is that application developers write first, and sometimes only, for the already-dominant operating system. A firm investing millions of dollars in developing a new piece of photo-editing software will usually choose to write it so that it works with the operating system that has two hundred million users, not the one that has only fifteen million users. Microsoft feared that Netscape's browser, dominant in the mid-1990s, would come to be a universal translator among applications--that developers could write their applications to run on the browser, and the browser would handle translation across different operating systems. If that were to happen, Microsoft's operating system would have to compete on intrinsic quality. Windows would lose the boost of the felicitous feedback effect, where more users mean more applications, and this greater number of applications in turn draws more new users, and so forth. To prevent this eventuality, Microsoft engaged in a series of practices, ultimately found to have violated the antitrust laws, aimed at getting a dominant majority of Internet users to adopt Microsoft's Internet Explorer (IE). Illegal or not, these practices succeeded in making IE the dominant browser, overtaking the original market leader, Netscape, within a short number of years. By the time the antitrust case was completed, Netscape had turned browser development over to the open-source development community, but under licensing conditions sufficiently vague so that the project generated little early engagement. Only around 2001-2002, did the Mozilla browser development project get sufficient independence and security for developers to begin to contribute energetically. It was only in late 2004, early 2005, that Mozilla Firefox became the first major release of a free software browser that showed promise of capturing some user-share back from IE. +={Netscape and browser wars} + +Microsoft's dominance over the operating system and browser has not, as a practical matter, resulted in tight control over the information flow and use on the Internet. This is so for three reasons. First, the TCP/IP protocol is more fundamental to Internet communications. It allows any application or content to run across the network, as long as it knows how to translate itself into very simple packets with standard addressing information. To prevent ,{[pg 436]}, applications from doing this over basic TCP/IP would make the Microsoft operating system substantially crippling to many applications developers, which brings us to the second reason. Microsoft's dominance depends to a great extent on the vastly greater library of applications available to run on Windows. To make this library possible, Microsoft makes available a wide range of application program interfaces that developers can use without seeking Microsoft's permission. As a strategic decision about what enhances its core dominance, Microsoft may tilt the application development arena in its favor, but not enough to make it too hard for most applications to be implemented on a Windows platform. While not nearly as open as a genuinely open-source platform, Windows is also a far cry from a completely controlled platform, whose owner seeks to control all applications that are permitted to be developed for, and all uses that can be made of, its platform. Third, while IE controls much of the browser market share, Microsoft has not succeeded in dominating the standards for Web authoring. Web browser standard setting happens on the turf of the mythic creator of the Web-- Tim Berners Lee. Lee chairs the W3C, a nonprofit organization that sets the standard ways in which Web pages are authored so that they have a predictable appearance on the browser's screen. Microsoft has, over the years, introduced various proprietary extensions that are not part of the Web standard, and has persuaded many Web authors to optimize their Web sites to IE. If it succeeds, it will have wrested practical control over standard setting from the W3C. However, as of this writing, Web pages generally continue to be authored using mostly standard, open extensions, and anyone browsing the Internet with a free software browser, like any of the Mozilla family, will be able to read and interact with most Web sites, including the major ecommerce sites, without encountering nonstandard interfaces optimized for IE. At a minimum, these sites are able to query the browser as to whether or not it is IE, and serve it with either the open standard or the proprietary standard version accordingly. + +3~ Free Software +={free software:policy on+1;logical layer of institutional ecology:free software policies+1;open-source software:policy on+1;software, open-source:policy on+1} + +The role of Mozilla in the browser wars points to the much more substantial and general role of the free software movement and the open-source development community as major sources of openness, and as a backstop against appropriation of the logical layer. In some of the most fundamental uses of the Internet--Web-server software, Web-scripting software, and e-mail servers--free or open-source software has a dominant user share. In others, like ,{[pg 437]}, the operating system, it offers a robust alternative sufficiently significant to prevent enclosure of an entire component of the logical layer. Because of its licensing structure and the fact that the technical specifications are open for inspection and use by anyone, free software offers the most completely open, commons-based institutional and organizational arrangement for any resource or capability in the digital environment. Any resource in the logical layer that is the product of a free software development project is institutionally designed to be available for nonmarket, nonproprietary strategies of use. The same openness, however, makes free software resistant to control. If one tries to implement a constraining implementation of a certain function--for example, an audio driver that will not allow music to be played without proper authorization from a copyright holder--the openness of the code for inspection will allow users to identify what, and how, the software is constraining. The same institutional framework will allow any developer to "fix" the problem and change the way the software behaves. This is how free and open-source software is developed to begin with. One cannot limit access to the software--for purposes of inspection and modification--to developers whose behavior can be controlled by contract or property and still have the software be "open source" or free. As long as free software can provide a fully implemented alternative to the computing functionalities users want, perfect enclosure of the logical layer is impossible. This openness is a boon for those who wish the network to develop in response to a wide range of motivations and practices. However, it presents a serious problem for anyone who seeks to constrain the range of uses made of the Internet. And, just as they did in the context of trusted systems, the incumbent industrial culture producers--Hollywood and the recording industry-- would, in fact, like to control how the Internet is used and how software behaves. + +3~ Software Patents +={innovation:software patents and+2;proprietary rights:software patents+2;software:patents for+2} + +Throughout most of its history, software has been protected primarily by copyright, if at all. Beginning in the early 1980s, and culminating formally in the late 1990s, the Federal Circuit, the appellate court that oversees the U.S. patent law, made clear that software was patentable. The result has been that software has increasingly become the subject of patent rights. There is now pressure for the European Union to pass a similar reform, and to internationalize the patentability of software more generally. There are a variety of policy questions surrounding the advisability of software patents. Software ,{[pg 438]}, development is a highly incremental process. This means that patents tend to impose a burden on a substantial amount of future innovation, and to reward innovation steps whose qualitative improvement over past contributions may be too small to justify the discontinuity represented by a patent grant. Moreover, innovation in the software business has flourished without patents, and there is no obvious reason to implement a new exclusive right in a market that seems to have been enormously innovative without it. Most important, software components interact with each other constantly. Sometimes interoperating with a certain program may be absolutely necessary to perform a function, not because the software is so good, but because it has become the standard. The patent then may extend to the very functionality, whereas a copyright would have extended only to the particular code by which it was achieved. The primary fear is that patents over standards could become major bottlenecks. + +From the perspective of the battle over the institutional ecology, free software and open-source development stand to lose the most from software patents. A patent holder may charge a firm that develops dependent software in order to capture rents. However, there is no obvious party to charge for free software development. Even if the patent owner has a very open licensing policy--say, licensing the patent nonexclusively to anyone without discrimination for $10,000--most free software developers will not be able to play. IBM and Red Hat may pay for licenses, but the individual contributor hacking away at his or her computer, will not be able to. The basic driver of free software innovation is easy ubiquitous access to the state of the art, coupled with diverse motivations and talents brought to bear on a particular design problem. If working on a problem requires a patent license, and if any new development must not only write new source code, but also avoid replicating a broad scope patent or else pay a large fee, then the conditions for free software development are thoroughly undermined. Free software is responsible for some of the most basic and widely used innovations and utilities on the Internet today. Software more generally is heavily populated by service firms that do not functionally rely on exclusive rights, copyrights, or patents. Neither free software nor service-based software development need patents, and both, particularly free and open-source software, stand to be stifled significantly by widespread software patenting. As seen in the case of the browser war, in the case of Gnutella, and the much more widely used basic utilities of the Web--Apache server software, a number of free e-mail servers, and the Perl scripting language--free and open-source ,{[pg 439]}, software developers provide central chunks of the logical layer. They do so in a way that leaves that layer open for anyone to use and build upon. The drive to increase the degree of exclusivity available for software by adopting patents over and above copyright threatens the continued vitality of this development methodology. In particular, it threatens to take certain discrete application areas that may require access to patented standard elements or protocols out of the domain of what can be done by free software. As such, it poses a significant threat to the availability of an open logical layer for at least some forms of network use. + +2~ THE CONTENT LAYER +={content layer of institutional ecology+35;layers of institutional ecology:content layer+35;policy layers:content layer+35} + +The last set of resources necessary for information production and exchange is the universe of existing information, knowledge, and culture. The battle over the scope, breadth, extent, and enforcement of copyright, patent, trademarks, and a variety of exotic rights like trespass to chattels or the right to link has been the subject of a large legal literature. Instead of covering the entire range of enclosure efforts of the past decade or more, I offer a set of brief descriptions of the choices being made in this domain. The intention is not to criticize or judge the intrinsic logic of any of these legal changes, but merely to illustrate how all these toggles of institutional ecology are being set in favor of proprietary strategies, at the expense of nonproprietary producers. + +3~ Copyright +={content layer of institutional ecology:copyright issues+9:see also proprietary rights;copyright issues+9;proprietary rights:copyright issues+9} + +The first domain in which we have seen a systematic preference for commercial producers that rely on property over commons-based producers is in copyright. This preference arises from a combination of expansive interpretations of what rights include, a niggardly interpretive attitude toward users' privileges, especially fair use, and increased criminalization. These have made copyright law significantly more industrial-production friendly than it was in the past or than it need be from the perspective of optimizing creativity or welfare in the networked information economy, rather than rent-extraction by incumbents. + +/{Right to Read}/. Jessica Litman early diagnosed an emerging new "right to read."~{ Jessica Litman, "The Exclusive Right to Read," Cardozo Arts and Entertainment Law Journal 13 (1994): 29. }~ The basic right of copyright, to control copying, was never seen to include the right to control who reads an existing copy, when, and how ,{[pg 440]}, many times. Once a user bought a copy, he or she could read it many times, lend it to a friend, or leave it on the park bench or in the library for anyone else to read. This provided a coarse valve to limit the deadweight loss associated with appropriating a public good like information. As a happenstance of computer technology, reading on a screen involves making a temporary copy of a file onto the temporary memory of the computer. An early decision of the Ninth Circuit Court of Appeals, MAI Systems, treated RAM (random-access memory) copies of this sort as "copies" for purposes of copyright.~{ /{MAI Systems Corp. v. Peak Computer, Inc.}/, 991 F.2d 511 (9th Cir. 1993). }~ This position, while weakly defended, was not later challenged or rejected by other courts. Its result is that every act of reading on a screen involves "making a copy" within the meaning of the Copyright Act. As a practical matter, this interpretation expands the formal rights of copyright holders to cover any and all computer-mediated uses of their works, because no use can be made with a computer without at least formally implicating the right to copy. More important than the formal legal right, however, this universal baseline claim to a right to control even simple reading of one's copyrighted work marked a change in attitude. Justified later through various claims--such as the efficiency of private ordering or of price discrimination--it came to stand for a fairly broad proposition: Owners should have the right to control all valuable uses of their works. Combined with the possibility and existence of technical controls on actual use and the DMCA's prohibition on circumventing those controls, this means that copyright law has shifted. It existed throughout most of its history as a regulatory provision that reserved certain uses of works for exclusive control by authors, but left other, not explicitly constrained uses free. It has now become a law that gives rights holders the exclusive right to control any computer-mediated use of their works, and captures in its regulatory scope all uses that were excluded from control in prior media. +={Litman, Jessica;right to read} + +/{Fair Use Narrowed}/. Fair use in copyright was always a judicially created concept with a large degree of uncertainty in its application. This uncertainty, coupled with a broader interpretation of what counts as a commercial use, a restrictive judicial view of what counts as fair, and increased criminalization have narrowed its practical scope. +={fair use and copyright+2} + +First, it is important to recognize that the theoretical availability of the fair-use doctrine does not, as a practical matter, help most productions. This is due to a combination of two factors: (1) fair-use doctrine is highly fact specific and uncertain in application, and (2) the Copyright Act provides ,{[pg 441]}, large fixed statutory damages, even if there is no actual damage to the copyright owner. Lessig demonstrated this effect most clearly by working through an example of a documentary film.~{ Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin Press, 2004). }~ A film will not be distributed without liability insurance. Insurance, in turn, will not be issued without formal clearance, or permission, from the owner of each copyrighted work, any portion of which is included in the film, even if the amount used is trivially small and insignificant to the documentary. A five-second snippet of a television program that happened to play on a television set in the background of a sequence captured in documentary film can therefore prevent distribution of the film, unless the filmmaker can persuade the owner of that program to grant rights to use the materials. Copyright owners in such television programs may demand thousands of dollars for even such a minimal and incidental use of "their" images. This is not because a court would ultimately find that using the image as is, with the tiny fraction of the television program in the background, was not covered by fair use. It probably would be a fair use. It is because insurance companies and distributors would refuse to incur the risk of litigation. + +Second, in the past few years, even this uncertain scope has been constricted by expanding the definitions of what counts as interference with a market and what counts as a commercial use. Consider the Free Republic case. In that case, a political Web site offered a forum for users to post stories from various newspapers as grist for a political discussion of their contents or their slant. The court held that because newspapers may one day sell access to archived articles, and because some users may read some articles on the Web forum instead of searching and retrieving them from the newspapers' archive, the use interfered with a potential market. Moreover, because Free Republic received donations from users (although it did not require them) and exchanged advertising arrangements with other political sites, the court treated the site as a "commercial user," and its use of newspaper articles to facilitate political discussion of them "a commercial use." These factors enabled the court to hold that posting an article from a medium--daily newspapers--whose existence does not depend on copyright, in a way that may one day come to have an effect on uncertain future revenues, which in any case would be marginal to the business model of the newspapers, was not a fair use even when done for purposes of political commentary. + +/{Criminalization}/. Copyright enforcement has also been substantially criminalized in the past few years. Beginning with the No Electronic Theft Act ,{[pg 442]}, (NET Act) in 1997 and later incorporated into the DMCA, criminal copyright has recently become much more expansive than it was until a few years ago. Prior to passage of the NET Act, only commercial pirates--those that slavishly made thousands of copies of video or audiocassettes and sold them for profit--would have qualified as criminal violators of copyright. Criminal liability has now been expanded to cover private copying and free sharing of copyrighted materials whose cumulative nominal price (irrespective of actual displaced demand) is quite low. As criminal copyright law is currently written, many of the tens of millions using p2p networks are felons. It is one thing when the recording industry labels tens of millions of individuals in a society "pirates" in a rhetorical effort to conform social norms to its members' business model. It is quite another when the state brands them felons and fines or imprisons them. Litman has offered the most plausible explanation of this phenomenon.~{ Jessica Litman, "Electronic Commerce and Free Speech," Journal of Ethics and Information Technology 1 (1999): 213. }~ As the network makes low-cost production and exchange of information and culture easier, the large-scale commercial producers are faced with a new source of competition--volunteers, people who provide information and culture for free. As the universe of people who can threaten the industry has grown to encompass more or less the entire universe of potential customers, the plausibility of using civil actions to force individuals to buy rather than share information goods decreases. Suing all of one's intended customers is not a sustainable business model. In the interest of maintaining the business model that relies on control over information goods and their sale as products, the copyright industry has instead enlisted criminal enforcement by the state to prevent the emergence of such a system of free exchange. These changes in formal law have, in what is perhaps a more important development, been coupled with changes in the Justice Department's enforcement policy, leading to a substantial increase in the shadow of criminal enforcement in this area.~{ See Department of Justice Intellectual Property Policy and Programs, http://www.usdoj.gov/criminal/cybercrime/ippolicy.htm. }~ +={criminalization of copyright infringement;No Electrical Theft (NET) Act} + +/{Term Extension}/. The change in copyright law that received the most widespread public attention was the extension of copyright term in the Sonny Bono Copyright Term Extension Act of 1998. The statute became cause celebre in the early 2000s because it was the basis of a major public campaign and constitutional challenge in the case of /{Eldred v. Ashcroft}/.~{ /{Eldred v. Ashcroft}/, 537 U.S. 186 (2003). }~ The actual marginal burden of this statute on use of existing materials could be seen as relatively small. The length of copyright protection was already very long-- seventy-five years for corporate-owned materials, life of the author plus fifty for materials initially owned by human authors. The Sonny Bono Copyright ,{[pg 443]}, Term Extension Act increased these two numbers to ninety-five and life plus seventy, respectively. The major implication, however, was that the Act showed that retroactive extension was always available. As materials that were still valuable in the stocks of Disney, in particular, came close to the public domain, their lives would be extended indefinitely. The legal challenge to the statute brought to public light the fact that, as a practical matter, almost the entire stock of twentieth-century culture and beyond would stay privately owned, and its copyright would be renewed indefinitely. For video and sound recordings, this meant that almost the entire universe of materials would never become part of the public domain; would never be available for free use as inputs into nonproprietary production. The U.S. Supreme Court upheld the retroactive extension. The inordinately long term of protection in the United States, initially passed under the pretext of "harmonizing" the length of protection in the United States and in Europe, is now being used as an excuse to "harmonize" the length of protection for various kinds of materials--like sound recordings--that actually have shorter terms of protection in Europe or other countries, like Australia. At stake in all these battles is the question of when, if ever, will Errol Flynn's or Mickey Mouse's movies, or Elvis's music, become part of the public domain? When will these be available for individual users on the same terms that Shakespeare or Mozart are available? The implication of Eldred is that they may never join the public domain, unless the politics of term-extension legislation change. +={Eldred v. Ashcroft;Sonny Bono Copyright Term Extension Act of 1998;term of copyright} + +/{No de Minimis Digital Sampling}/. A narrower, but revealing change is the recent elimination of digital sampling from the universe of ex ante permissible actions, even when all that is taken is a tiny snippet. The case is recent and has not been generalized by other courts as of this writing. However, it offers insight into the mind-set of judges who are confronted with digital opportunities, and who in good faith continue to see the stakes as involving purely the organization of a commercial industry, rather than defining the comparative scope of commercial industry and nonmarket commons-based creativity. Courts seem blind to the effects of their decisions on the institutional ecology within which nonproprietary, individual, and social creation must live. In Bridgeport Music, Inc., the Sixth Circuit was presented with the following problem: The defendant had created a rap song.~{ /{Bridgeport Music, Inc. v. Dimension Films}/, 383 F.3d 390 (6th Cir.2004). }~ In making it, he had digitally copied a two-second guitar riff from a digital recording of a 1970s song, and then looped and inserted it in various places to create a completely different musical effect than the original. The district court ,{[pg 444]}, had decided that the amount borrowed was so small as to make the borrowing de minimis--too little for the law to be concerned with. The Court of Appeals, however, decided that it would be too burdensome for courts to have to decide, on a case-by-case basis, how much was too little for law to be concerned with. Moreover, it would create too much uncertainty for recording companies; it is, as the court put it, "cheaper to license than to litigate."~{ 383 F3d 390, 400. }~ The court therefore held that any digital sampling, no matter how trivial, could be the basis of a copyright suit. Such a bright-line rule that makes all direct copying of digital bits, no matter how small, an infringement, makes digital sound recordings legally unavailable for noncommercial, individually creative mixing. There are now computer programs, like Garage Band, that allow individual users to cut and mix existing materials to create their own music. These may not result in great musical compositions. But they may. That, in any event, is not their point. They allow users to have a very different relationship to recorded music than merely passively listening to finished, unalterable musical pieces. By imagining that the only parties affected by copyright coverage of sampling are recording artists who have contracts with recording studios and seek to sell CDs, and can therefore afford to pay licensing fees for every two-second riff they borrow, the court effectively outlawed an entire model of user creativity. Given how easy it is to cut, paste, loop, slow down, and speed up short snippets, and how creatively exhilarating it is for users--young and old--to tinker with creating musical compositions with instruments they do not know how to play, it is likely that the opinion has rendered illegal a practice that will continue, at least for the time being. Whether the social practice will ultimately cause the law to change or vice versa is more difficult to predict. +={de minimis digital sampling;digital sampling;music industry:digital sampling;sampling, digital (music)} + +3~ Contractual Enclosure: Click-Wrap Licenses and the Uniform Computer Information Transactions Act (UCITA) +={click-wrap licenses+3;context, cultural:see culture cultural enclosure+3;licensing:shrink-wrap (contractual enclosure)+3;proprietary rights:contractual enclosure+3;shrink-wrap licenses+3;UCITA (Uniform Computer Information Transactions Act)+3} + +Practically all academic commentators on copyright law--whether critics or proponents of this provision or that--understand copyright to be a public policy accommodation between the goal of providing incentives to creators and the goal of providing efficiently priced access to both users and downstream creators. Ideally, it takes into consideration the social costs and benefits of one settlement or another, and seeks to implement an optimal tradeoff. Beginning in the 1980s, software and other digital goods were sold with "shrink-wrap licenses." These were licenses to use the software, which purported ,{[pg 445]}, to apply to mass-market buyers because the buyer would be deemed to have accepted the contract by opening the packaging of the software. These practices later transmuted online into click-wrap licenses familiar to most anyone who has installed software and had to click "I Agree" once or more before the software would install. Contracts are not bound by the balance struck in public law. Licensors can demand, and licensees can agree to, almost any terms. Among the terms most commonly inserted in such licenses that restrict the rights of users are prohibitions on reverse engineering, and restrictions on the use of raw data in compilations, even though copyright law itself does not recognize rights in data. As Mark Lemley showed, most courts prior to the mid-1990s did not enforce such terms.~{ Mark A. Lemley, "Intellectual Property and Shrinkwrap Licenses," Southern California Law Review 68 (1995): 1239, 1248-1253. }~ Some courts refused to enforce shrink-wrap licenses in mass-market transactions by relying on state contract law, finding an absence of sufficient consent or an unenforceable contract of adhesion. Others relied on federal preemption, stating that to the extent state contract law purported to enforce a contract that prohibited fair use or otherwise protected material in the public domain--like the raw information contained in a report--it was preempted by federal copyright law that chose to leave this material in the public domain, freely usable by all. In 1996, in /{ProCD v. Zeidenberg}/, the Seventh Circuit held otherwise, arguing that private ordering would be more efficient than a single public determination of what the right balance was.~{ 86 F.3d 1447 (7th Cir. 1996). }~ +={Lemley, Mark;privatization:ProCD v. Zeidenberg} + +The following few years saw substantial academic debate as to the desirability of contractual opt-outs from the public policy settlement. More important, the five years that followed saw a concerted effort to introduce a new part to the Uniform Commercial Code (UCC)--a model commercial law that, though nonbinding, is almost universally adopted at the state level in the United States, with some modifications. The proposed new UCC Article 2B was to eliminate the state law concerns by formally endorsing the use of standard shrink-wrap licenses. The proposed article generated substantial academic and political heat, ultimately being dropped by the American Law Institute, one of the main sponsors of the UCC. A model law did ultimately pass under the name of the Uniform Computer Information Transactions Act (UCITA), as part of a less universally adopted model law effort. Only two states adopted the law--Virginia and Maryland. A number of other states then passed anti-UCITA laws, which gave their residents a safe harbor from having UCITA applied to their click-wrap transactions. +={UCC (Uniform Commercial Code)} + +The reason that ProCD and UCITA generated so much debate was the concern that click-wrap licenses were operating in an inefficient market, and ,{[pg 446]}, that they were, as a practical matter, displacing the policy balance represented by copyright law. Mass-market transactions do not represent a genuine negotiated agreement, in the individualized case, as to what the efficient contours of permissions are for the given user and the given information product. They are, rather, generalized judgments by the vendor as to what terms are most attractive for it that the market will bear. Unlike rival economic goods, information goods sold at a positive price in reliance on copyright are, by definition, priced above marginal cost. The information itself is nonrival. Its marginal cost is zero. Any transaction priced above the cost of communication is evidence of some market power in the hands of the provider, used to price based on value and elasticity of demand, not on marginal cost. Moreover, the vast majority of users are unlikely to pay close attention to license details they consider to be boilerplate. This means there is likely significant information shortfall on the part of consumers as to the content of the licenses, and the sensitivity of demand to overreaching contract terms is likely low. This is not because consumers are stupid or slothful, but because the probability that either they would be able to negotiate out from under a standard provision, or a court would enforce against them a truly abusive provision is too low to justify investing in reading and arguing about contracts for all but their largest purchases. In combination, these considerations make it difficult to claim as a general matter that privately set licensing terms would be more efficient than the publicly set background rules of copyright law.~{ For a more complete technical explanation, see Yochai Benkler, "An Unhurried View of Private Ordering in Information Transactions," Vanderbilt Law Review 53 (2000): 2063. }~ The combination of mass-market contracts enforced by technical controls over use of digital materials, which in turn are protected by the DMCA, threatens to displace the statutorily defined public domain with a privately defined realm of permissible use.~{ James Boyle, "Cruel, Mean or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property," Vanderbilt Law Review 53 (2000); Julie E. Cohen, "Copyright and the Jurisprudence of Self-Help," Berkeley Technology Law Journal 13 (1998): 1089; Niva Elkin-Koren, "Copyright Policy and the Limits of Freedom of Contract," Berkeley Technology Law Journal 12 (1997): 93. }~ This privately defined settlement would be arrived at in non-negotiated mass-market transactions, in the presence of significant information asymmetries between consumers and vendors, and in the presence of systematic market power of at least some degree. + +3~ Trademark Dilution +={branding:trademark dilutation+4;dilutation of trademarks+4;logical layer of institutional ecology:trademark dilutation+4;proprietary rights:trademark dilutation+4;trademark dilutation+4} + +As discussed in chapter 8, the centrality of commercial interaction to social existence in early-twenty-first-century America means that much of our core iconography is commercial in origin and owned as a trademark. Mickey, Barbie, Playboy, or Coke are important signifiers of meaning in contemporary culture. Using iconography is a central means of creating rich, culturally situated expressions of one's understanding of the world. Yet, as Boyle ,{[pg 447]}, has pointed out, now that we treat flag burning as a constitutionally protected expression, trademark law has made commercial icons the sole remaining venerable objects in our law. Trademark law permits the owners of culturally significant images to control their use, to squelch criticism, and to define exclusively the meaning that the symbols they own carry. +={Boyle, James} + +Three factors make trademark protection today more of a concern as a source of enclosure than it might have been in the past. First is the introduction of the federal Anti-Dilution Act of 1995. Second is the emergence of the brand as the product, as opposed to a signifier for the product. Third is the substantial reduction in search and other information costs created by the Net. Together, these three factors mean that owned symbols are becoming increasingly important as cultural signifiers, are being enclosed much more extensively than before precisely as cultural signifiers, and with less justification beyond the fact that trademarks, like all exclusive rights, are economically valuable to their owners. +={Antidilutation Act of 1995+2} + +In 1995, Congress passed the first federal Anti-Dilution Act. Though treated as a trademark protection law, and codifying doctrines that arose in trademark common law, antidilution is a fundamentally different economic right than trademark protection. Traditional trademark protection is focused on preventing consumer confusion. It is intended to assure that consumers can cheaply tell the difference between one product and another, and to give producers incentives to create consistent quality products that can be associated with their trademark. Trademark law traditionally reflected these interests. Likelihood of consumer confusion was the sine qua non of trademark infringement. If I wanted to buy a Coca-Cola, I did not want to have to make sure I was not buying a different dark beverage in a red can called Coca-Gola. Infringement actions were mostly limited to suits among competitors in similar relevant markets, where confusion could occur. So, while trademark law restricted how certain symbols could be used, it was so only as among competitors, and only as to the commercial, not cultural, meaning of their trademark. The antidilution law changes the most relevant factors. It is intended to protect famous brand names, irrespective of a likelihood of confusion, from being diluted by use by others. The association between a particular corporation and a symbol is protected for its value to that corporation, irrespective of the use. It no longer regulates solely competitors to the benefit of competition. It prohibits many more possible uses of the symbol than was the case under traditional trademark law. It applies even to noncommercial users where there is no possibility of confusion. The emergence ,{[pg 448]}, of this antidilution theory of exclusivity is particularly important as brands have become the product itself, rather than a marker for the product. Nike and Calvin Klein are examples: The product sold in these cases is not a better shoe or shirt--the product sold is the brand. And the brand is associated with a cultural and social meaning that is developed purposefully by the owner of the brand so that people will want to buy it. This development explains why dilution has become such a desirable exclusive right for those who own it. It also explains the cost of denying to anyone the right to use the symbol, now a signifier of general social meaning, in ways that do not confuse consumers in the traditional trademark sense, but provide cultural criticism of the message signified. + +Ironically, the increase in the power of trademark owners to control uses of their trademark comes at a time when its functional importance as a mechanism for reducing search costs is declining. Traditional trademark's most important justification was that it reduced information collection costs and thereby facilitated welfare-enhancing trade. In the context of the Internet, this function is significantly less important. General search costs are lower. Individual items in commerce can provide vastly greater amounts of information about their contents and quality. Users can use machine processing to search and sift through this information and to compare views and reviews of specific items. Trademark has become less, rather than more, functionally important as a mechanism for dealing with search costs. When we move in the next few years to individual-item digital marking, such as with RFID (radio frequency identification) tags, all the relevant information about contents, origin, and manufacture down to the level of the item, as opposed to the product line, will be readily available to consumers in real space, by scanning any given item, even if it is not otherwise marked at all. In this setting, where the information qualities of trademarks will significantly decline, the antidilution law nonetheless assures that owners can control the increasingly important cultural meaning of trademarks. Trademark, including dilution, is subject to a fair use exception like that of copyright. For the same reasons as operated in copyright, however, the presence of such a doctrine only ameliorates, but does not solve, the limits that a broad exclusive right places on the capacity of nonmarket-oriented creative uses of materials--in this case, culturally meaningful symbols. ,{[pg 449]}, + +3~ Database Protection +={database protection+3;logical layer of institutional ecology:database protection+3;proprietary rights:database protection+3;raw data:database protection+3} + +In 1991, in /{Feist Publications, Inc. v. Rural Tel. Serv. Co.}/, the Supreme Court held that raw facts in a compilation, or database, were not covered by the Copyright Act. The constitutional clause that grants Congress the power to create exclusive rights for authors, the Court held, required that works protected were original with the author. The creative element of the compilation--its organization or selectivity, for example, if sufficiently creative-- could therefore be protected under copyright law. However, the raw facts compiled could not. Copying data from an existing compilation was therefore not "piracy"; it was not unfair or unjust; it was purposefully privileged in order to advance the goals of the constitutional power to make exclusive grants--the advancement of progress and creative uses of the data.~{ /{Feist Publications, Inc. v. Rural Telephone Service Co., Inc.}/, 499 U.S. 340, 349-350 (1991). }~ A few years later, the European Union passed a Database Directive, which created a discrete and expansive right in raw data compilations.~{ Directive No. 96/9/EC on the legal protection of databases, 1996 O.J. (L 77) 20. }~ The years since the Court decided Feist have seen repeated efforts by the larger players in the database publishing industry to pass similar legislation in the United States that would, as a practical matter, overturn Feist and create exclusive private rights in the raw data in compilations. "Harmonization" with Europe has been presented as a major argument in favor of this law. Because the Feist Court based its decision on limits to the constitutional power to create exclusive rights in raw information, efforts to protect database providers mostly revolved around an unfair competition law, based in the Commerce Clause, rather than on precisely replicating the European right. In fact, however, the primary draft that has repeatedly been introduced walks, talks, and looks like a property right. +={Feist Publications, Inc. v. Rural Tel. Serv. Co.+1;Database Directive+1} + +Sustained and careful work, most prominently by Jerome Reichman and Paul Uhlir, has shown that the proposed database right is unnecessary and detrimental, particularly to scientific research.~{ J. H. Reichman and Paul F. Uhlir, "Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology," Berkeley Technology Law Journal 14 (1999): 793; Stephen M. Maurer and Suzanne Scotchmer, "Database Protection: Is It Broken and Should We Fix It?" Science 284 (1999): 1129. }~ Perhaps no example explains this point better than the "natural experiment" that Boyle has pointed to, and which the United States and Europe have been running over the past decade or so. The United States has formally had no exclusive right in data since 1991. Europe has explicitly had such a right since 1996. One would expect that both the European Union and the United States would look to the comparative effects on the industries in both places when the former decides whether to keep its law, and the latter decides whether to adopt one like it. The evidence is reasonably consistent and persuasive. Following the Feist decision, the U.S. database industry continued to grow steadily, without ,{[pg 450]}, a blip. The "removal" of the property right in data by Feist had no effect on growth. Europe at the time had a much smaller database industry than did the United States, as measured by the number of databases and database companies. Maurer, Hugenholz, and Onsrud showed that, following the introduction of the European sui generis right, each country saw a one-time spike in the number of databases and new database companies, but this was followed within a year or two by a decline to the levels seen before the Directive, which have been fairly stagnant since the early 1990s.~{ See Stephen M. Maurer, P. Bernt Hugenholtz, and Harlan J. Onsrud, "Europe's Database Experiment," Science 294 (2001): 789; Stephen M. Maurer, "Across Two Worlds: Database Protection in the U.S. and Europe," paper prepared for Industry Canada's Conference on Intellectual Property and Innovation in the KnowledgeBased Economy, May 23-24 2001. }~ Another study, more specifically oriented toward the appropriate policy for government-collected data, compared the practices of Europe--where government agencies are required to charge what the market will bear for access to data they collect--and the United States, where the government makes data it collects freely available at the cost of reproduction, as well as for free on the Web. That study found that the secondary uses of data, including commercial- and noncommercial-sector uses--such as, for example, markets in commercial risk management and meteorological services--contributed vastly more to the economy of the United States because of secondary uses of freely accessed government weather data than equivalent market sectors in Europe were able to contribute to their respective economies.~{ Peter Weiss, "Borders in Cyberspace: Conflicting Public Sector Information Policies and their Economic Impacts" (U.S. Dept. of Commerce, National Oceanic and Atmospheric Administration, February 2002). }~ The evidence suggests, then, that the artificial imposition of rents for proprietary data is suppressing growth in European market-based commercial services and products that rely on access to data, relative to the steady growth in the parallel U.S. markets, where no such right exists. It is trivial to see that a cost structure that suppresses growth among market-based entities that would at least partially benefit from being able to charge more for their outputs would have an even more deleterious effect on nonmarket information production and exchange activities, which are burdened by the higher costs and gain no benefit from the proprietary rights. +={Reichman, Jerome;Uhlir, Paul} + +There is, then, mounting evidence that rights in raw data are unnecessary to create a basis for a robust database industry. Database manufacturers rely on relational contracts--subscriptions to continuously updated databases-- rather than on property-like rights. The evidence suggests that, in fact, exclusive rights are detrimental to various downstream industries that rely on access to data. Despite these fairly robust observations from a decade of experience, there continues to be a threat that such a law will pass in the U.S. Congress. This continued effort to pass such a law underscores two facts. First, much of the legislation in this area reflects rent seeking, rather than reasoned policy. Second, the deeply held belief that "more property-like ,{[pg 451]}, rights will lead to more productivity" is hard to shake, even in the teeth of both theoretical analysis and empirical evidence to the contrary. + +3~ Linking and Trespass to Chattels: New Forms of Information Exclusivity +={database protection:trespass to chattels+4;eBay v. Bidder's Edge+4;hyperlinking on the Web:as trespass+4;Internet:linking as trespass+4;linking on the Web:as trespass+4;network topology:linking as trespass+4;proprietary rights:trespass to chattels+4;referencing on the Web:linking as trespass+4;structure of network:linking as trespass+4;topology, network:linking as trespass+4;trespass to chattels+4;Web:linking as trespass+4;wireless communications:linking as trespass+4} + +Some litigants have turned to state law remedies to protect their data indirectly, by developing a common-law, trespass-to-server form of action. The primary instance of this trend is /{eBay v. Bidder's Edge}/, a suit by the leading auction site against an aggregator site. Aggregators collect information about what is being auctioned in multiple locations, and make the information about the items available in one place so that a user can search eBay and other auction sites simultaneously. The eventual bidding itself is done on the site that the item's owner chose to make his or her item available, under the terms required by that site. The court held that the automated information collection process--running a computer program that automatically requests information from the server about what is listed on it, called a spider or a bot--was a "trespass to chattels."~{ /{eBay, Inc. v. Bidder's Edge, Inc.}/, 2000 U.S. Dist. LEXIS 13326 (N.D.Cal. 2000). }~ This ancient form of action, originally intended to apply to actual taking or destruction of goods, mutated into a prohibition on unlicensed automated searching. The injunction led to Bidder's Edge closing its doors before the Ninth Circuit had an opportunity to review the decision. A common-law decision like /{eBay v. Bidder's Edge}/ creates a common-law exclusive private right in information by the back door. In principle, the information itself is still free of property rights. Reading it mechanically--an absolute necessity given the volume of the information and its storage on magnetic media accessible only by mechanical means--can, however, be prohibited as "trespass." The practical result would be equivalent to some aspects of a federal exclusive private right in raw data, but without the mitigating attributes of any exceptions that would be directly introduced into legislation. It is still too early to tell whether cases such as these ultimately will be considered preempted by federal copyright law,~{ The preemption model could be similar to the model followed by the Second Circuit in /{NBA v. Motorola}/, 105 F.3d 841 (2d Cir. 1997), which restricted state misappropriation claims to narrow bounds delimited by federal policy embedded in the Copyright Act. This might require actual proof that the bots have stopped service, or threaten the service's very existence. }~ or perhaps would be limited by first amendment law on the model of /{New York Times v. Sullivan}/.~{ /{New York Times v. Sullivan}/, 376 U.S. 254, 266 (1964). }~ + +Beyond the roundabout exclusivity in raw data, trespass to chattels presents one instance of a broader question that is arising in application of both common-law and statutory provisions. At stake is the legal control over information about information, like linking and other statements people make about the availability and valence of some described information. Linking--the mutual pointing of many documents to each other--is the very ,{[pg 452]}, core idea of the World Wide Web. In a variety of cases, parties have attempted to use law to control the linking practices of others. The basic structure of these cases is that A wants to tell users M and N about information presented by B. The meaning of a link is, after all, "here you can read information presented by someone other than me that I deem interesting or relevant to you, my reader." Someone, usually B, but possibly some other agent C, wants to control what M and N know or do with regard to the information B is presenting. B (or C) then sues A to prevent A from linking to the information on B's site. + +The simplest instance of such a case involved a service that Microsoft offered--sidewalk.com--that provided access to, among other things, information on events in various cities. If a user wanted a ticket to the event, the sidewalk site linked that user directly to a page on ticketmaster.com where the user could buy a ticket. Ticketmaster objected to this practice, preferring instead that sidewalk.com link to its home page, in order to expose the users to all the advertising and services Ticketmaster provided, rather than solely to the specific service sought by the user referred by sidewalk .com. At stake in these linking cases is who will control the context in which certain information is presented. If deep linking is prohibited, Ticketmaster will control the context--the other movies or events available to be seen, their relative prominence, reviews, and so forth. The right to control linking then becomes a right to shape the meaning and relevance of one's statements for others. If the choice between Ticketmaster and Microsoft as controllers of the context of information may seem of little normative consequence, it is important to recognize that the right to control linking could easily apply to a local library, or church, or a neighbor as they participate in peer-producing relevance and accreditation of the information to which they link. +={Microsoft Corporation:sidewalk.com;sidewalk.com;Ticketmaster} + +The general point is this: On the Internet, there are a variety of ways that some people can let others know about information that exists somewhere on the Web. In doing so, these informers loosen someone else's control over the described information--be it the government, a third party interested in limiting access to the information, or the person offering the information. In a series of instances over the past half decade or more we have seen attempts by people who control certain information to limit the ability of others to challenge that control by providing information about the information. These are not cases in which a person without access to information is seeking affirmative access from the "owner" of information. These are ,{[pg 453]}, cases where someone who dislikes what another is saying about particular information is seeking the aid of law to control what other parties can say to each other about that information. Understood in these terms, the restrictive nature of these legal moves in terms of how they burden free speech in general, and impede the freedom of anyone, anywhere, to provide information, relevance, and accreditation, becomes clear. The /{eBay v. Bidder's Edge}/ case suggests one particular additional aspect. While much of the political attention focuses on formal "intellectual property"?style statutes passed by Congress, in the past few years we have seen that state law and common-law doctrine are also being drafted to create areas of exclusivity and boundaries on the free use of information. These efforts are often less well informed, and because they were arrived at ad hoc, often without understanding that they are actually forms of regulating information production and exchange, they include none of the balancing privileges or limitations of rights that are so common in the formal statutory frameworks. + +3~ International "Harmonization" +={global development:international harmonization+5;harmonization, international+5;international harmonization+5;logical layer of institutional ecology:international harmonization+5;policy:international harmonization+5;proprietary rights:international harmonization+5} + +One theme that has repeatedly appeared in the discussion of databases, the DMCA, and term extension, is the way in which "harmonization" and internationalization of exclusive rights are used to ratchet up the degree of exclusivity afforded rights holders. It is trite to point out that the most advanced economies in the world today are information and culture exporters. This is true of both the United States and Europe. Some of the cultural export industries--most notably Hollywood, the recording industry, some segments of the software industry, and pharmaceuticals--have business models that rely on the assertion of exclusive rights in information. Both the United States and the European Union, therefore, have spent the past decade and a half pushing for ever-more aggressive and expansive exclusive rights in international agreements and for harmonization of national laws around the world toward the highest degrees of protection. Chapter 9 discusses in some detail why this was not justified as a matter of economic rationality, and why it is deleterious as a matter of justice. Here, I only note the characteristic of internationalization and harmonization as a one-way ratchet toward ever-expanding exclusivity. + +Take a simple provision like the term of copyright protection. In the mid1990s, Europe was providing for many works (but not all) a term of life of the author plus seventy years, while the United States provided exclusivity for the life of the author plus fifty. A central argument for the Sonny Bono ,{[pg 454]}, Copyright Term Extension Act of 1998 was to "harmonize" with Europe. In the debates leading up to the law, one legislator actually argued that if our software manufacturers had a shorter term of copyright, they would be disadvantaged relative to the European firms. This argument assumes, of course, that U.S. software firms could stay competitive in the software business by introducing nothing new in software for seventy-five years, and that it would be the loss of revenues from products that had not been sufficiently updated for seventy-five years to warrant new copyright that would place them at a disadvantage. The newly extended period created by the Sonny Bono Copyright Term Extension Act is, however, longer in some cases than the protection afforded in Europe. Sound recordings, for example, are protected for fifty years in Europe. The arguments are now flowing in the opposite direction--harmonization toward the American standard for all kinds of works, for fear that the recordings of Elvis or the Beatles will fall into the European public domain within a few paltry years. "Harmonization" is never invoked to de-escalate exclusivity--for example, as a reason to eliminate the European database right in order to harmonize with the obviously successful American model of no protection, or to shorten the length of protection for sound recordings in the United States. +={Sonny Bono Copyright Term Extension Act of 1998;term of copyright+1;trade policy+1} + +International agreements also provide a fertile forum for ratcheting up protection. Lobbies achieve a new right in a given jurisdiction--say an extension of term, or a requirement to protect technological protection measures on the model of the DMCA. The host country, usually the United States, the European Union, or both, then present the new right for treaty approval, as the United States did in the context of the WIPO treaties in the mid-1990s. Where this fails, the United States has more recently begun to negotiate bilateral free trade agreements (FTAs) with individual nations. The structure of negotiation is roughly as follows: The United States will say to Thailand, or India, or whoever the trading partner is: If you would like preferential treatment of your core export, say textiles or rice, we would like you to include this provision or that in your domestic copyright or patent law. Once this is agreed to in a number of bilateral FTAs, the major IP exporters can come back to the multilateral negotiations and claim an emerging international practice, which may provide more exclusivity than their then applicable domestic law. With changes to international treaties in hand, domestic resistance to legislation can be overcome, as we saw in the United States when the WIPO treaties were used to push through Congress the DMCA anticircumvention provisions that had failed to pass two years ,{[pg 455]}, earlier. Any domestic efforts to reverse and limit exclusivity then have to overcome substantial hurdles placed by the international agreements, like the agreement on Trade Related Aspects of Intellectual Property (TRIPS). The difficulty of amending international agreements to permit a nation to decrease the degree of exclusivity it grants copyright or patent holders becomes an important one-way ratchet, preventing de-escalation. + +3~ Countervailing Forces + +As this very brief overview demonstrates, most of the formal institutional moves at the content layer are pushing toward greater scope and reach for exclusive rights in the universe of existing information, knowledge, and cultural resources. The primary countervailing forces in the content layer are similar to the primary countervailing forces in the logical layer--that is, social and cultural push-back against exclusivity. Recall how central free software and the open, cooperative, nonproprietary standard-setting processes are to the openness of the logical layer. In the content layer, we are seeing the emergence of a culture of free creation and sharing developing as a countervailing force to the increasing exclusivity generated by the public, formal lawmaking system. The Public Library of Science discussed in chapter 9 is an initiative of scientists who, frustrated with the extraordinarily high journal costs for academic journals, have begun to develop systems for scientific publication whose outputs are immediately and freely available everywhere. The Creative Commons is an initiative to develop a series of licenses that allow individuals who create information, knowledge, and culture to attach simple licenses that define what others may, or may not, do with their work. The innovation represented by these licenses relative to the background copyright system is that they make it trivial for people to give others permission to use their creations. Before their introduction, there were no widely available legal forms to make it clear to the world that it is free to use my work, with or without restrictions. More important than the institutional innovation of Creative Commons is its character as a social movement. Under the moniker of the "free culture" movement, it aims to encourage widespread adoption of sharing one's creations with others. What a mature movement like the free software movement, or nascent movements like the free culture movement and the scientists' movement for open publication and open archiving are aimed at is the creation of a legally selfreinforcing domain of open cultural sharing. They do not negate propertylike rights in information, knowledge, and culture. Rather, they represent a ,{[pg 456]}, self-conscious choice by their participants to use copyrights, patents, and similar rights to create a domain of resources that are free to all for common use. +={Creative Commons initiative} + +Alongside these institutionally instantiated moves to create a selfreinforcing set of common resources, there is a widespread, global culture of ignoring exclusive rights. It is manifest in the widespread use of file-sharing software to share copyrighted materials. It is manifest in the widespread acclaim that those who crack copy-protection mechanisms receive. This culture has developed a rhetoric of justification that focuses on the overreaching of the copyright industries and on the ways in which the artists themselves are being exploited by rights holders. While clearly illegal in the United States, there are places where courts have sporadically treated participation in these practices as copying for private use, which is exempted in some countries, including a number of European countries. In any event the sheer size of this movement and its apparent refusal to disappear in the face of lawsuits and public debate present a genuine countervailing pressure against the legal tightening of exclusivity. As a practical matter, efforts to impose perfect private ordering and to limit access to the underlying digital bits in movies and songs through technical means have largely failed under the sustained gaze of the community of computer scientists and hackers who have shown its flaws time and again. Moreover, the mechanisms developed in response to a large demand for infringing file-sharing utilities were the very mechanisms that were later available to the Swarthmore students to avoid having the Diebold files removed from the Internet and that are shared by other censorship-resistant publication systems. The tools that challenge the "entertainment-as-finished-good" business model are coming into much wider and unquestionably legitimate use. Litigation may succeed in dampening use of these tools for copying, but also creates a heightened political awareness of information-production regulation. The same students involved in the Diebold case, radicalized by the lawsuit, began a campus "free culture" movement. It is difficult to predict how this new political awareness will play out in a political arena--the making of copyrights, patents, and similar exclusive rights--that for decades has functioned as a technical backwater that could never invoke a major newspaper editorial, and was therefore largely controlled by the industries whose rents it secured. ,{[pg 457]}, + +2~ THE PROBLEM OF SECURITY +={commercial model of communication:security-related policy+4;free software:security considerations+4;industrial model of communication:security-related policy+4;institutional ecology of digital environment:security-related policy+4;open-source software:security considerations+4;policy:security-related+4;security-related policy+4;software, open-source:security considerations+4;traditional model of communication:security-related policy+4} + +This book as a whole is dedicated to the emergence of commons-based information production and its implications for liberal democracies. Of necessity, the emphasis of this chapter too is on institutional design questions that are driven by the conflict between the industrial and networked information economies. Orthogonal to this conflict, but always relevant to it, is the perennial concern of communications policy with security and crime. Throughout much of the 1990s, this concern manifested primarily as a conflict over encryption. The "crypto-wars," as they were called, revolved around the FBI's efforts to force industry to adopt technology that had a backdoor-- then called the "Clipper Chip"--that would facilitate wiretapping and investigation. After retarding encryption adoption in the United States for almost a decade, the federal government ultimately decided that trying to hobble security in most American systems (that is, forcing everyone to adopt weaker encryption) in order to assure that the FBI could better investigate the failures of security that would inevitably follow use of such weak encryption was a bad idea. The fact that encryption research and business was moving overseas--giving criminals alternative sources for obtaining excellent encryption tools while the U.S. industry fell behind--did not help the FBI's cause. The same impulse is to some extent at work again, with the added force of the post-9/11 security mind-set. +={encryption+1;file-sharing networks:security considerations+1} + +One concern is that open wireless networks are available for criminals to hide their tracks--the criminal uses someone else's Internet connection using their unencrypted WiFi access point, and when the authorities successfully track the Internet address back to the WiFi router, they find an innocent neighbor rather than the culprit. This concern has led to some proposals that manufacturers of WiFi routers set their defaults so that, out of the box, the router is encrypted. Given how "sticky" defaults are in technology products, this would have enormously deleterious effects on the development of open wireless networks. Another concern is that free and open-source software reveals its design to anyone who wants to read it. This makes it easier to find flaws that could be exploited by attackers and nearly impossible to hide purposefully designed weaknesses, such as susceptibility to wiretapping. A third is that a resilient, encrypted, anonymous peer-to-peer network, like FreeNet or some of the major p2p architectures, offers the criminals or terrorists communications systems that are, for all practical purposes, beyond the control of law enforcement and counterterrorism efforts. To the extent ,{[pg 458]}, that they take this form, security concerns tend to support the agenda of the proprietary producers. +={open wireless networks:security+1;logical layer of institutional ecology:peer-to-peer networks+1;p2p networks:security considerations;peer-to-peer networks:security considerations;network topology:peer-to-peer networks;structure of network:peer-to-peer networks;topology, network:peer-to-peer networks} + +However, security concerns need not support proprietary architectures and practices. On the wireless front, there is a very wide range of anonymization techniques available for criminals and terrorists who use the Internet to cover their tracks. The marginally greater difficulty that shutting off access to WiFi routers would impose on determined criminals bent on covering their tracks is unlikely to be worth the loss of an entire approach toward constructing an additional last-mile loop for local telecommunications. One of the core concerns of security is the preservation of network capacity as a critical infrastructure. Another is assuring communications for critical security personnel. Open wireless networks that are built from ad hoc, self-configuring mesh networks are the most robust design for a local communications loop currently available. It is practically impossible to disrupt local communications in such a network, because these networks are designed so that each router will automatically look for the next available neighbor with which to make a network. These systems will self-heal in response to any attack on communications infrastructure as a function of their basic normal operational design. They can then be available both for their primary intended critical missions and for first responders as backup data networks, even when main systems have been lost--as they were, in fact, lost in downtown Manhattan after the World Trade Center attack. To imagine that security is enhanced by eliminating the possibility that such a backup local communications network will emerge in exchange for forcing criminals to use more anonymizers and proxy servers instead of a neighbor's WiFi router requires a very narrow view of security. Similarly, the same ease of study that makes flaws in free software observable to potential terrorists or criminals makes them available to the community of developers, who quickly shore up the defenses of the programs. Over the past decade, security flaws in proprietary programs, which are not open to inspection by such large numbers of developers and testers, have been much more common than security breaches in free software. Those who argue that proprietary software is more secure and allows for better surveillance seem to be largely rehearsing the thought process that typified the FBI's position in the Clipper Chip debate. +={capacity:securing} + +More fundamentally, the security concerns represent a lack of ease with the great freedom enabled by the networked information environment. Some of the individuals who can now do more alone and in association with others want to do harm to the United States in particular, and to advanced liberal ,{[pg 459]}, market-based democracies more generally. Others want to trade Nazi memorabilia or child pornography. Just as the Internet makes it harder for authoritarian regimes to control their populations, so too the tremendous openness and freedom of the networked environment requires new ways of protecting open societies from destructive individuals and groups. And yet, particularly in light of the systematic and significant benefits of the networked information economy and its sharing-based open production practices to the core political commitments of liberal democracies, preserving security in these societies by eliminating the technologies that can support improvements in the very freedom being protected is perverse. Given Abu Ghraib and Guantanamo Bay, however, squelching the emergence of an open networked environment and economy hardly seems to be the most glaring of self-defeating moves in the war to protect freedom and human dignity in liberal societies. It is too early to tell whether the security urge will ultimately weigh in on the side of the industrial information economy incumbents, or will instead follow the path of the crypto-wars, and lead security concerns to support the networked information economy's ability to provide survivable, redundant, and effective critical infrastructures and information production and exchange capabilities. If the former, this impulse may well present a formidable obstacle to the emergence of an open networked information environment. ,{[pg 460]}, + +1~12 Chapter 12 - Conclusion: The Stakes of Information Law and Policy +={commercial model of communication:stakes of information policy+21;industrial model of communication:stakes of information policy+21;institutional ecology of digital environment:stakes of information policy+21;policy:stakes of+21;stakes of information policy+21;traditional model of communication:stakes of information policy+21} + +Complex modern societies have developed in the context of mass media and industrial information economy. Our theories of growth and innovation assume that industrial models of innovation are dominant. Our theories about how effective communications in complex societies are achieved center on market-based, proprietary models, with a professional commercial core and a dispersed, relatively passive periphery. Our conceptions of human agency, collective deliberation, and common culture in these societies are embedded in the experience and practice of capital-intensive information and cultural production practices that emphasize proprietary, market-based models and starkly separate production from consumption. Our institutional frameworks reflect these conceptual models of information production and exchange, and have come, over the past few years, to enforce these conceptions as practiced reality, even when they need not be. +={proprietary rights:dominance of, overstated+2} + +This book began with four economic observations. First, the baseline conception that proprietary strategies are dominant in our information production system is overstated. The education system, ,{[pg 461]}, from kindergarten to doctoral programs, is thoroughly infused with nonproprietary motivations, social relations, and organizational forms. The arts and sciences are replete with voluntarism and actions oriented primarily toward social-psychological motivations rather than market appropriation. Political and theological discourses are thoroughly based in nonmarket forms and motivations. Perhaps most surprisingly, even industrial research and development, while market oriented, is in most industries not based on proprietary claims of exclusion, but on improved efficiencies and customer relations that can be captured and that drive innovation, without need for proprietary strategies of appropriation. Despite the continued importance of nonproprietary production in information as a practical matter, the conceptual nuance required to acknowledge its importance ran against the grain of the increasingly dominant thesis that property and markets are the roots of all growth and productivity. Partly as a result of the ideological and military conflict with Communism, partly as a result of the theoretical elegance of a simple and tractable solution, policy makers and their advisers came to believe toward the end of the twentieth century that property in information and innovation was like property in wristwatches and automobiles. The more clearly you defined and enforced it, and the closer it was to perfect exclusive rights, the more production you would get. The rising dominance of this conceptual model combined with the rent-seeking lobbying of industrialmodel producers to underwrite a fairly rapid and substantial tipping of the institutional ecology of innovation and information production in favor of proprietary models. The U.S. patent system was overhauled in the early 1980s, in ways that strengthened and broadened the reach and scope of exclusivity. Copyright was vastly expanded in the mid-1970s, and again in the latter 1990s. Trademark was vastly expanded in the 1990s. Other associated rights were created and strengthened throughout these years. +={cost:proprietary models+3;efficiency of information regulation+3;inefficiency of information regulation+3;proprietary rights, inefficiency of+3;regulating information, efficiency of+3} + +The second economic point is that these expansions of rights operate, as a practical matter, as a tax on nonproprietary models of production in favor of the proprietary models. It makes access to information resources more expensive for all, while improving appropriability only for some. Introducing software patents, for example, may help some of the participants in the onethird of the software industry that depends on sales of finished software items. But it clearly raises the costs without increasing benefits for the twothirds of the industry that is service based and relational. As a practical matter, the substantial increases in the scope and reach of exclusive rights have adversely affected the operating conditions of nonproprietary producers. ,{[pg 462]}, + +Universities have begun to seek patents and pay royalties, impeding the sharing of information that typified past practice. Businesses that do not actually rely on asserting patents for their business model have found themselves amassing large patent portfolios at great expense, simply to fend off the threat of suit by others who would try to hold them up. Older documentary films, like Eyes on the Prize, have been hidden from public view for years, because of the cost and complexity of clearing the rights to every piece of footage or trademark that happens to have been captured by the camera. New documentaries require substantially greater funding than would have been necessary to pay for their creation, because of the costs of clearing newly expanded rights. + +The third economic observation is that the basic technologies of information processing, storage, and communication have made nonproprietary models more attractive and effective than was ever before possible. Ubiquitous low-cost processors, storage media, and networked connectivity have made it practically feasible for individuals, alone and in cooperation with others, to create and exchange information, knowledge, and culture in patterns of social reciprocity, redistribution, and sharing, rather than proprietary, market-based production. The basic material capital requirements of information production are now in the hands of a billion people around the globe who are connected to each other more or less seamlessly. These material conditions have given individuals a new practical freedom of action. If a person or group wishes to start an information-production project for any reason, that group or person need not raise significant funds to acquire the necessary capital. In the past, the necessity to obtain funds constrained information producers to find a market-based model to sustain the investment, or to obtain government funding. The funding requirements, in turn, subordinated the producers either to the demands of markets, in particular to mass-market appeal, or to the agendas of state bureaucracies. The networked information environment has permitted the emergence to much greater significance of the nonmarket sector, the nonprofit sector, and, most radically, of individuals. +={cost:technologies;peer production+2;technology:costs of} + +The fourth and final economic observation describes and analyzes the rise of peer production. This cluster of phenomena, from free and open-source software to /{Wikipedia}/ and SETI@Home, presents a stark challenge to conventional thinking about the economics of information production. Indeed, it challenges the economic understanding of the relative roles of marketbased and nonmarket production more generally. It is important to see these ,{[pg 463]}, phenomena not as exceptions, quirks, or ephemeral fads, but as indications of a fundamental fact about transactional forms and their relationship to the technological conditions of production. It is a mistake to think that we have only two basic free transactional forms--property-based markets and hierarchically organized firms. We have three, and the third is social sharing and exchange. It is a widespread phenomenon--we live and practice it every day with our household members, coworkers, and neighbors. We coproduce and exchange economic goods and services. But we do not count these in the economic census. Worse, we do not count them in our institutional design. I suggest that the reason social production has been shunted to the peripheries of the advanced economies is that the core economic activities of the economies of steel and coal required large capital investments. These left markets, firms, or state-run enterprises dominant. As the first stage of the information economy emerged, existing information and human creativity-- each a "good" with fundamentally different economic characteristics than coal or steel--became important inputs. The organization of production nevertheless followed an industrial model, because information production and exchange itself still required high capital costs--a mechanical printing press, a broadcast station, or later, an IBM mainframe. The current networked stage of the information economy emerged when the barrier of high capital costs was removed. The total capital cost of communication and creation did not necessarily decline. Capital investment, however, became widely distributed in small dollops, owned by individuals connected in a network. We came to a stage where the core economic activities of the most advanced economies--the production and processing of information--could be achieved by pooling physical capital owned by widely dispersed individuals and groups, who have purchased the capital means for personal, household, and small-business use. Then, human creativity and existing information were left as the main remaining core inputs. Something new and radically different started to happen. People began to apply behaviors they practice in their living rooms or in the elevator--"Here, let me lend you a hand," or "What did you think of last night's speech?"--to production problems that had, throughout the twentieth century, been solved on the model of Ford and General Motors. The rise of peer production is neither mysterious nor fickle when viewed through this lens. It is as rational and efficient given the objectives and material conditions of information production at the turn of the twenty-first century as the assembly line was for the conditions at the turn of the twentieth. The pooling of human creativity and of ,{[pg 464]}, computation, communication, and storage enables nonmarket motivations and relations to play a much larger role in the production of the information environment than it has been able to for at least decades, perhaps for as long as a century and a half. + +A genuine shift in the way we produce the information environment that we occupy as individual agents, as citizens, as culturally embedded creatures, and as social beings goes to the core of our basic liberal commitments. Information and communications are core elements of autonomy and of public political discourse and decision making. Communication is the basic unit of social existence. Culture and knowledge, broadly conceived, form the basic frame of reference through which we come to understand ourselves and others in the world. For any liberal political theory--any theory that begins with a focus on individuals and their freedom to be the authors of their own lives in connection with others--the basic questions of how individuals and communities come to know and evaluate are central to the project of characterizing the normative value of institutional, social, and political systems. Independently, in the context of an information- and innovation-centric economy, the basic components of human development also depend on how we produce information and innovation, and how we disseminate its implementations. The emergence of a substantial role for nonproprietary production offers discrete strategies to improve human development around the globe. Productivity in the information economy can be sustained without the kinds of exclusivity that have made it difficult for knowledge, information, and their beneficial implementations to diffuse beyond the circles of the wealthiest nations and social groups. We can provide a detailed and specific account of why the emergence of nonmarket, nonproprietary production to a more significant role than it had in the industrial information economy could offer improvements in the domains of both freedom and justice, without sacrificing--indeed, while improving--productivity. +={autonomy+4;individual autonomy+4;information production;production of information} + +From the perspective of individual autonomy, the emergence of the networked information economy offers a series of identifiable improvements in how we perceive the world around us, the extent to which we can affect our perceptions of the world, the range of actions open to us and their possible outcomes, and the range of cooperative enterprises we can seek to enter to pursue our choices. It allows us to do more for and by ourselves. It allows us to form loose associations with others who are interested in a particular outcome they share with us, allowing us to provide and explore many more ,{[pg 465]}, diverse avenues of learning and speaking than we could achieve by ourselves or in association solely with others who share long-term strong ties. By creating sources of information and communication facilities that no one owns or exclusively controls, the networked information economy removes some of the most basic opportunities for manipulation of those who depend on information and communication by the owners of the basic means of communications and the producers of the core cultural forms. It does not eliminate the possibility that one person will try to act upon another as object. But it removes the structural constraints that make it impossible to communicate at all without being subject to such action by others. +={networked public sphere+2:see also social relations and norms networked society} + +From the perspective of democratic discourse and a participatory republic, the networked information economy offers a genuine reorganization of the public sphere. Except in the very early stages of a small number of today's democracies, modern democracies have largely developed in the context of mass media as the core of their public spheres. A systematic and broad literature has explored the basic limitations of commercial mass media as the core of the public sphere, as well as it advantages. The emergence of a networked public sphere is attenuating, or even solving, the most basic failings of the mass-mediated public sphere. It attenuates the power of the commercial mass-media owners and those who can pay them. It provides an avenue for substantially more diverse and politically mobilized communication than was feasible in a commercial mass media with a small number of speakers and a vast number of passive recipients. The views of many more individuals and communities can be heard. Perhaps most interestingly, the phenomenon of peer production is now finding its way into the public sphere. It is allowing loosely affiliated individuals across the network to fulfill some of the basic and central functions of the mass media. We are seeing the rise of nonmarket, distributed, and collaborative investigative journalism, critical commentary, and platforms for political mobilization and organization. We are seeing the rise of collaborative filtering and accreditation, which allows individuals engaged in public discourse to be their own source of deciding whom to trust and whose words to question. +={diversity:fragmentation of communication+2;public sphere+1} + +A common critique of claims that the Internet improves democracy and autonomy is centered on information overload and fragmentation. What we have seen emerging in the networked environment is a combination of selfconscious peer-production efforts and emergent properties of large systems of human beings that have avoided this unhappy fate. We have seen the adoption of a number of practices that have made for a reasonably navigable ,{[pg 466]}, and coherent information environment without re-creating the mass-media model. There are organized nonmarket projects for producing filtering and accreditation, ranging from the Open Directory Project to mailing lists to like-minded people, like MoveOn.org. There is a widespread cultural practice of mutual pointing and linking; a culture of "Here, see for yourself, I think this is interesting." The basic model of observing the judgments of others as to what is interesting and valuable, coupled with exercising one's own judgment about who shares one's interests and whose judgment seems to be sound has created a pattern of linking and usage of the Web and the Internet that is substantially more ordered than a cacophonous free-for-all, and less hierarchically organized and controlled by few than was the massmedia environment. It turns out that we are not intellectual lemmings. Given freedom to participate in making our own information environment, we neither descend into Babel, nor do we replicate the hierarchies of the mass-mediated public spheres to avoid it. +={attention fragmentation+1;Babel objection+1;communities:fragmentation of+1;fragmentation of communication+1;information overload and Babel objection+1;norms (social):fragmentation of communication+1;regulation by social norms:fragmentation of communication+1;social relations and norms:fragmentation of communication+1;culture+1} + +The concepts of culture and society occupy more tenuous positions in liberal theory than autonomy and democracy. As a consequence, mapping the effects of the changes in information production and exchange on these domains as aspects of liberal societies is more complex. As to culture, the minimum that we can say is that the networked information environment is rendering culture more transparent. We all "occupy" culture; our perceptions, views, and structures of comprehension are all always embedded in culture. And yet there are degrees to which this fact can be rendered more or less opaque to us as inhabitants of a culture. In the networked information environment, as individuals and groups use their newfound autonomy to engage in personal and collective expression through existing cultural forms, these forms become more transparent--both through practice and through critical examination. The mass-media television culture encouraged passive consumption of polished, finished goods. The emergence of what might be thought of as a newly invigorated folk culture--created by and among individuals and groups, rather than by professionals for passive consumption-- provides both a wider set of cultural forms and practices and a bettereducated or better-practiced community of "readers" of culture. From the perspective of a liberal theory unwilling simply to ignore the fact that culture structures meaning, personal values, and political conceptions, the emergence of a more transparent and participatory cultural production system is a clear improvement over the commercial, professional mass culture of the twentieth century. In the domain of social relations, the degree of autonomy and the ,{[pg 467]}, loose associations made possible by the Internet, which play such an important role in the gains for autonomy, democracy, and a critical culture, have raised substantial concerns about how the networked environment will contribute to a further erosion of community and solidarity. As with the Babel objection, however, it appears that we are not using the Internet further to fragment our social lives. The Internet is beginning to replace twentieth-century remote media--television and telephone. The new patterns of use that we are observing as a result of this partial displacement suggest that much of network use focuses on enhancing and deepening existing real-world relations, as well as adding new online relations. Some of the time that used to be devoted to passive reception of standardized finished goods through a television is now reoriented toward communicating and making together with others, in both tightly and loosely knit social relations. Moreover, the basic experience of treating others, including strangers, as potential partners in cooperation contributes to a thickening of the sense of possible social bonds beyond merely co-consumers of standardized products. Peer production can provide a new domain of reasonably thick connection with remote others. + +The same capabilities to make information and knowledge, to innovate, and to communicate that lie at the core of the gains in freedom in liberal societies also underlie the primary advances I suggest are possible in terms of justice and human development. From the perspective of a liberal conception of justice, the possibility that more of the basic requirements of human welfare and the capabilities necessary to be a productive, self-reliant individual are available outside of the market insulates access to these basic requirements and capabilities from the happenstance of wealth distribution. From a more substantive perspective, information and innovation are central components of all aspects of a rich meaning of human development. Information and innovation are central to human health--in the production and use of both food and medicines. They are central to human learning and the development of the knowledge any individual needs to make life richer. And they are, and have for more than fifty years been known to be, central to growth of material welfare. Along all three of these dimensions, the emergence of a substantial sector of nonmarket production that is not based on exclusivity and does not require exclusion to feed its own engine contributes to global human development. The same economic characteristics that make exclusive rights in information a tool that imposes barriers to access in advanced economies make these rights a form of tax on technological latecomers. ,{[pg 468]}, What most poor and middle-income countries lack is not human creativity, but access to the basic tools of innovation. The cost of the material requirements of innovation and information production is declining rapidly in many domains, as more can be done with ever-cheaper computers and communications systems. But exclusive rights in existing innovation tools and information resources remain a significant barrier to innovation, education, and the use of information-embedded tools and goods in low- and middle-income countries. As new strategies for the production of information and knowledge are making their outputs available freely for use and continuing innovation by everyone everywhere, the networked information economy can begin to contribute significantly to improvements in human development. We already see free software and free and open Internet standards playing that role in information technology sectors. We are beginning to see it take form in academic publishing, raw information, and educational materials, like multilingual encyclopedias, around the globe. More tentatively, we are beginning to see open commons-based innovation models and peer production emerge in areas of agricultural research and bioagricultural innovation, as well as, even more tentatively, in the area of biomedical research. These are still very early examples of what can be produced by the networked information economy, and how it can contribute, even if only to a limited extent, to the capacity of people around the globe to live a long and healthy, well-educated, and materially adequate life. +={human development and justice+1;justice and human development+1} + +If the networked information economy is indeed a significant inflection point for modern societies along all these dimensions, it is so because it upsets the dominance of proprietary, market-based production in the sphere of the production of knowledge, information, and culture. This upset is hardly uncontroversial. It will likely result in significant redistribution of wealth, and no less importantly, power, from previously dominant firms and business models to a mixture of individuals and social groups on the one hand, and on the other hand businesses that reshape their business models to take advantage of, and build tools an platforms for, the newly productive social relations. As a practical matter, the major economic and social changes described here are not deterministically preordained by the internal logic of technological progress. What we see instead is that the happenstance of the fabrication technology of computation, in particular, as well as storage and communications, has created technological conditions conducive to a significant realignment of our information production and exchange system. The actual structure of the markets, technologies, and social practices that ,{[pg 469]}, have been destabilized by the introduction of computer-communications networks is now the subject of a large-scale and diffuse institutional battle. + +We are seeing significant battles over the organization and legal capabilities of the physical components of the digitally networked environment. Will all broadband infrastructures be privately owned? If so, how wide a margin of control will owners have to prefer some messages over others? Will we, to the contrary, permit open wireless networks to emerge as an infrastructure of first and last resort, owned by its users and exclusively controlled by no one? The drives to greater private ownership in wired infrastructure, and the push by Hollywood and the recording industry to require digital devices mechanically to comply with exclusivity-respecting standards are driving the technical and organizational design toward a closed environment that would be more conducive to proprietary strategies. Open wireless networks and the present business model of the large and successful device companies--particularly, personal computers--to use open standards push in the opposite direction. End-user equipment companies are mostly focused on making their products as valuable as possible to their users, and are therefore oriented toward offering general-purpose platforms that can be deployed by their owners as they choose. These then become equally available for marketoriented as for social behaviors, for proprietary consumption as for productive sharing. + +At the logical layer, the ethic of open standards in the technical community, the emergence of the free software movement and its apolitical cousin, open-source development practices, on the one hand, and the antiauthoritarian drives behind encryption hacking and some of the peer-to-peer technologies, on the other hand, are pushing toward an open logical layer available for all to use. The efforts of the content industries to make the Internet manageable--most visibly, the DMCA and the continued dominance of Microsoft over the desktop, and the willingness of courts and legislatures to try to stamp out copyright-defeating technologies even when these obviously have significant benefits to users who have no interest in copying the latest song in order not to pay for the CD--are the primary sources of institutional constraint on the freedom to use the logical resources necessary to communicate in the network. +={content layer of institutional ecology+2;layers of institutional ecology+2:content layer+2|physical layer+2;logical layer of institutional ecology;physical layer of institutional ecology+2;policy layers+2:content layer+2|physical layer+2} + +At the content layer--the universe of existing information, knowledge, and culture--we are observing a fairly systematic trend in law, but a growing countertrend in society. In law, we see a continual tightening of the control that the owners of exclusive rights are given. Copyrights are longer, apply ,{[pg 470]}, to more uses, and are interpreted as reaching into every corner of valuable use. Trademarks are stronger and more aggressive. Patents have expanded to new domains and are given greater leeway. All these changes are skewing the institutional ecology in favor of business models and production practices that are based on exclusive proprietary claims; they are lobbied for by firms that collect large rents if these laws are expanded, followed, and enforced. Social trends in the past few years, however, are pushing in the opposite direction. These are precisely the trends of networked information economy, of nonmarket production, of an increased ethic of sharing, and an increased ambition to participate in communities of practice that produce vast quantities of information, knowledge, and culture for free use, sharing, and followon creation by others. +={institutional ecology of digital environment+3} + +The political and judicial pressures to form an institutional ecology that is decidedly tilted in favor of proprietary business models are running headon into the emerging social practices described throughout this book. To flourish, a networked information economy rich in social production practices requires a core common infrastructure, a set of resources necessary for information production and exchange that are open for all to use. This requires physical, logical, and content resources from which to make new statements, encode them for communication, and then render and receive them. At present, these resources are available through a mixture of legal and illegal, planned and unplanned sources. Some aspects come from the happenstance of the trajectories of very different industries that have operated under very different regulatory frameworks: telecommunications, personal computers, software, Internet connectivity, public- and private-sector information, and cultural publication. Some come from more or less widespread adoption of practices of questionable legality or outright illegality. Peer-to-peer file sharing includes many instances of outright illegality practiced by tens of millions of Internet users. But simple uses of quotations, clips, and mix-and-match creative practices that may, or, increasingly, may not, fall into the narrowing category of fair use are also priming the pump of nonmarket production. At the same time, we are seeing an ever-more self-conscious adoption of commons-based practices as a modality of information production and exchange. Free software, Creative Commons, the Public Library of Science, the new guidelines of the National Institutes of Health (NIH) on free publication of papers, new open archiving practices, librarian movements, and many other communities of practice are developing what was a contingent fact into a self-conscious social movement. As ,{[pg 471]}, the domain of existing information and culture comes to be occupied by information and knowledge produced within these free sharing movements and licensed on the model of open-licensing techniques, the problem of the conflict with the proprietary domain will recede. Twentieth-century materials will continue to be a point of friction, but a sufficient quotient of twentyfirst-century materials seem now to be increasingly available from sources that are happy to share them with future users and creators. If this socialcultural trend continues over time, access to content resources will present an ever-lower barrier to nonmarket production. +={commercial model of communication;industrial model of communication+1;traditional model of communication+1} + +The relationship of institutional ecology to social practice is a complex one. It is hard to predict at this point whether a successful sustained effort on the part of the industrial information economy producers will succeed in flipping even more of the institutional toggles in favor of proprietary production. There is already a more significant social movement than existed in the 1990s in the United States, in Europe, and around the world that is resisting current efforts to further enclose the information environment. This social movement is getting support from large and wealthy industrial players who have reoriented their business model to become the platforms, toolmakers, and service providers for and alongside the emerging nonmarket sector. IBM, Hewlett Packard, and Cisco, for example, might stand shoulder to shoulder with a nongovernment organization (NGO) like Public Knowledge in an effort to block legislation that would require personal computers to comply with standards set by Hollywood for copy protection. When Hollywood sued Grokster, the file-sharing company, and asked the Supreme Court to expand contributory liability of the makers of technologies that are used to infringe copyrights, it found itself arrayed against amicus briefs filed by Intel, the Consumer Electronics Association, and Verizon, SBC, AT&T, MCI, and Sun Microsystems, alongside briefs from the Free Software Foundation, and the Consumer Federation of America, Consumers Union, and Public Knowledge. + +Even if laws that favor enclosure do pass in one, or even many jurisdictions, it is not entirely clear that law can unilaterally turn back a trend that combines powerful technological, social, and economic drivers. We have seen even in the area of peer-to-peer networks, where the arguments of the incumbents seemed the most morally compelling and where their legal successes have been the most complete, that stemming the tide of change is difficult--perhaps impossible. Bits are a part of a flow in the networked information environment, and trying to legislate that fact away in order to ,{[pg 472]}, preserve a business model that sells particular collections of bits as discrete, finished goods may simply prove to be impossible. Nonetheless, legal constraints significantly shape the parameters of what companies and individuals decide to market and use. It is not hard to imagine that, were Napster seen as legal, it would have by now encompassed a much larger portion of the population of Internet users than the number of users who actually now use file-sharing networks. Whether the same moderate levels of success in shaping behavior can be replicated in areas where the claims of the incumbents are much more tenuous, as a matter of both policy and moral claims--such as in the legal protection of anticircumvention devices or the contraction of fair use--is an even harder question. The object of a discussion of the institutional ecology of the networked environment is, in any event, not prognostication. It is to provide a moral framework within which to understand the many and diverse policy battles we have seen over the past decade, and which undoubtedly will continue into the coming decade, that I have written this book. + +We are in the midst of a quite basic transformation in how we perceive the world around us, and how we act, alone and in concert with others, to shape our own understanding of the world we occupy and that of others with whom we share it. Patterns of social practice, long suppressed as economic activities in the context of industrial economy, have now emerged to greater importance than they have had in a century and a half. With them, they bring the possibility of genuine gains in the very core of liberal commitments, in both advanced economies and around the globe. The rise of commons-based information production, of individuals and loose associations producing information in nonproprietary forms, presents a genuine discontinuity from the industrial information economy of the twentieth century. It brings with it great promise, and great uncertainty. We have early intimations as to how market-based enterprises can adjust to make room for this newly emerging phenomenon--IBM's adoption of open source, Second Life's adoption of user-created immersive entertainment, or Open Source Technology Group's development of a platform for Slashdot. We also have very clear examples of businesses that have decided to fight the new changes by using every trick in the book, and some, like injecting corrupt files into peer-to-peer networks, that are decidedly not in the book. Law and regulation form one important domain in which these battles over the shape of our emerging information production system are fought. As we observe these battles; as we participate in them as individuals choosing how to behave and ,{[pg 473]}, what to believe, as citizens, lobbyists, lawyers, or activists; as we act out these legal battles as legislators, judges, or treaty negotiators, it is important that we understand the normative stakes of what we are doing. + +We have an opportunity to change the way we create and exchange information, knowledge, and culture. By doing so, we can make the twentyfirst century one that offers individuals greater autonomy, political communities greater democracy, and societies greater opportunities for cultural self-reflection and human connection. We can remove some of the transactional barriers to material opportunity, and improve the state of human development everywhere. Perhaps these changes will be the foundation of a true transformation toward more liberal and egalitarian societies. Perhaps they will merely improve, in well-defined but smaller ways, human life along each of these dimensions. That alone is more than enough to justify an embrace of the networked information economy by anyone who values human welfare, development, and freedom. + +1~blurb Blurb + +_1 "In this book, Benkler establishes himself as the leading intellectual of the information age. Profoundly rich in its insight and truth, this work will be the central text for understanding how networks have changed how we understand the world. No work to date has more carefully or convincingly made the case for a fundamental change in how we understand the economy of society." Lawrence Lessig, professor of law, Stanford Law School + +_1 "A lucid, powerful, and optimistic account of a revolution in the making." Siva Vaidhyanathan, author of /{The Anarchist in the Library}/ + +_1 "This deeply researched book documents the fundamental changes in the ways in which we produce and share ideas, information, and entertainment. Then, drawing widely on the literatures of philosophy, economics, and political theory, it shows why these changes should be welcomed, not resisted. The trends examined, if allowed to continue, will radically alter our lives - and no other scholar describes them so clearly or champions them more effectively than Benkler." William W. Fisher III, Hale and Dorr Professor of Intellectual Property Law, Harvard University, and directory, Berkman Center for Internet and Society + +_1 "A magnificent achievement. Yochai Benkler shows us how the Internet enables new commons-based methods for producing goods, remaking culture, and participating in public life. /{The Wealth of Networks}/ is an indispensable guide to the political economy of our digitally networked world." Jack M. Balkin, professor of law and director of the Information Society Project, Yale University. + +A dedicated wiki may be found at: http://www.benkler.org/wealth_of_networks/index.php/Main_Page + +Including a pdf: http://www.benkler.org/wonchapters.html + +The author's website is: http://www.benkler.org/ + +The books may be purchased at bookshops, including { Amazon.com }http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0300110561/ or at { Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0300110561 + +% Not final copy: markup not final, output numbering is therefore subject to change + +% italics need checking + +% hyphenation in markup text needs review, pdf to text transformation not perfect + +% book index can be preserved as book pages have been kept after a fashion, should be added + +% original footnotes do not have meaning in this copy and have been removed diff --git a/data/v3/samples/two_bits.christopher_kelty.sst b/data/v3/samples/two_bits.christopher_kelty.sst new file mode 100644 index 0000000..1cff4f9 --- /dev/null +++ b/data/v3/samples/two_bits.christopher_kelty.sst @@ -0,0 +1,3269 @@ +% SiSU 2.0 + +@title: Two Bits + :subtitle: The Cultural Significance of Free Software + +@creator: + :author: Kelty, Christopher M. + +@rights: + :copyright: © 2008 Duke University Press
Printed in the United States of America on acid-free paper ∞
Designed by C. H. Westmoreland
Typeset in Charis (an Open Source font) by Achorn International
Library of Congress Cataloging-in-Publication data and republication acknowledgments appear on the last printed pages of this book. + :license: Licensed under the Creative Commons Attribution-NonCommercial-Share Alike License, available at http://creativecommons.org/licenses/by-nc-sa/3.0/ or by mail from Creative Commons, 559 Nathan Abbott Way, Stanford, Calif. 94305, U.S.A. "NonCommercial" as defined in this license specifically excludes any sale of this work or any portion thereof for money, even if sale does not result in a profit by the seller or if the sale is by a 501(c)(3) nonprofit or NGO.
Duke University Press gratefully acknowledges the support of HASTAC (Humanities, Arts, Science, and Technology Advanced Collaboratory), which provided funds to help support the electronic interface of this book.
Two Bits is accessible on the Web at twobits.net. + +@classify: + :topic_register: open source software:social aspects;software:development:geeks;anthropology:geeks;book:subject:anthropology|information society|geeks;society;programming;society:information society; + :oclc: 183914703 + +% :isbn: 978082234264-9 + +@date: 2008 + +@make: + :skin: skin_2bits + :breaks: new=:C; break=1 + :italics: /Two Bits/i + +@links: + {Two Bits, Christopher Kelty: home page}http://twobits.net/ + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {Two Bits @ Amazon.com}http://www.amazon.com/Two-Bits-Cultural-Significance-Software/dp/0822342642 + {Two Bits @ Barnes & Noble}http://search.barnesandnoble.com/Two-Bits/Christopher-M-Kelty/e/9780822342649 + +:A~ @title @author + +1~dedication Dedication + +To my parents, Anne and Ted + +1~preface Preface + +This is a book about Free Software, also known as Open Source Software, and is meant for anyone who wants to understand the cultural significance of Free Software. Two Bits explains how Free Software works and how it emerged in tandem with the Internet as both a technical and a social form. Understanding Free Software in detail is the best way to understand many contentious and confusing changes related to the Internet, to "commons," to software, and to networks. Whether you think first of e-mail, Napster, Wikipedia, MySpace, or Flickr; whether you think of the proliferation of databases, identity thieves, and privacy concerns; whether you think of traditional knowledge, patents on genes, the death of scholarly publishing, or compulsory licensing of AIDS medicine; whether you think of MoveOn.org or net neutrality or YouTube—the issues raised by these phenomena can be better understood by looking carefully at the emergence of Free Software. ,{[PAGE x]}, + +Why? Because it is in Free Software and its history that the issues raised—from intellectual property and piracy to online political advocacy and "social" software—were first figured out and confronted. Free Software’s roots stretch back to the 1970s and crisscross the histories of the personal computer and the Internet, the peaks and troughs of the information-technology and software industries, the transformation of intellectual property law, the innovation of organizations and "virtual" collaboration, and the rise of networked social movements. Free Software does not explain why these various changes have occurred, but rather how individuals and groups are responding: by creating new things, new practices, and new forms of life. It is these practices and forms of life—not the software itself—that are most significant, and they have in turn served as templates that others can use and transform: practices of sharing source code, conceptualizing openness, writing copyright (and copyleft) licenses, coordinating collaboration, and proselytizing for all of the above. There are explanations aplenty for why things are the way they are: it’s globalization, it’s the network society, it’s an ideology of transparency, it’s the virtualization of work, it’s the new flat earth, it’s Empire. We are drowning in the why, both popular and scholarly, but starving for the how. + +Understanding how Free Software works is not just an academic pursuit but an experience that transforms the lives and work of participants involved. Over the last decade, in fieldwork with software programmers, lawyers, entrepreneurs, artists, activists, and other geeks I have repeatedly observed that understanding how Free Software works results in a revelation. People—even (or, perhaps, especially) those who do not consider themselves programmers, hackers, geeks, or technophiles—come out of the experience with something like religion, because Free Software is all about the practices, not about the ideologies and goals that swirl on its surface. Free Software and its creators and users are not, as a group, antimarket or anticommercial; they are not, as a group, anti-intellectual property or antigovernment; they are not, as a group, pro- or anti- anything. In fact, they are not really a group at all: not a corporation or an organization; not an NGO or a government agency; not a professional society or an informal horde of hackers; not a movement or a research project. + +Free Software is, however, public; it is about making things public. This fact is key to comprehending its cultural significance, its ,{[PAGE xi]}, appeal, and its proliferation. Free Software is public in a particular way: it is a self-determining, collective, politically independent mode of creating very complex technical objects that are made publicly and freely available to everyone—a "commons," in common parlance. It is a practice of working through the promises of equality, fairness, justice, reason, and argument in a domain of technically complex software and networks, and in a context of powerful, lopsided laws about intellectual property. The fact that something public in this grand sense emerges out of practices so seemingly arcane is why the first urge of many converts is to ask: how can Free Software be "ported" to other aspects of life, such as movies, music, science or medicine, civil society, and education? It is this proselytizing urge and the ease with which the practices are spread that make up the cultural significance of Free Software. For better or for worse, we may all be using Free Software before we know it. + +1~ Acknowledgements + +Anthropology is dependent on strangers who become friends and colleagues—strangers who contribute the very essence of the work. In my case, these strangers are also hyperaware of issues of credit, reputation, acknowledgment, reuse, and modification of ideas and things. Therefore, the list is extensive and detailed. + +Sean Doyle and Adrian Gropper opened the doors to this project, providing unparalleled insight, hospitality, challenge, and curiosity. Axel Roch introduced me to Volker Grassmuck, and to much else. Volker Grassmuck introduced me to Berlin’s Free Software world and invited me to participate in the Wizards of OS conferences. Udhay Shankar introduced me to almost everyone I know, sometimes after the fact. Shiv Sastry helped me find lodging in Bangalore at his Aunt Anasuya Sastry’s house, which is called "Silicon Valley" and which was truly a lovely place to stay. Bharath Chari and Ram Sundaram let me haunt their office and cat-5 cables ,{[PAGE xiv]}, during one of the more turbulent periods of their careers. Glenn Otis Brown visited, drank, talked, invited, challenged, entertained, chided, encouraged, drove, was driven, and gave and received advice. Ross Reedstrom welcomed me to the Rice Linux Users’ Group and to Connexions. Brent Hendricks did yeoman’s work, suffering my questions and intrusions. Geneva Henry, Jenn Drummond, Chuck Bearden, Kathy Fletcher, Manpreet Kaur, Mark Husband, Max Starkenberg, Elvena Mayo, Joey King, and Joel Thierstein have been welcoming and enthusiastic at every meeting. Sid Burris has challenged and respected my work, which has been an honor. Rich Baraniuk listens to everything I say, for better or for worse; he is a magnificent collaborator and friend. + +James Boyle has been constantly supportive, for what feels like very little return on investment. Very few people get to read and critique and help reshape the argument and structure of a book, and to appear in it as well. Mario Biagioli helped me see the intricate strategy described in chapter 6. Stefan Helmreich read early drafts and transformed my thinking about networks. Manuel DeLanda explained the term assemblage to me. James Faubion corrected my thinking in chapter 2, helped me immeasurably with the Protestants, and has been an exquisitely supportive colleague and department chair. Mazyar Lotfalian and Melissa Cefkin provided their apartment and library, in which I wrote large parts of chapter 1. Matt Price and Michelle Murphy have listened patiently to me construct and reconstruct versions of this book for at least six years. Tom and Elizabeth Landecker provided hospitality and stunningly beautiful surroundings in which to rewrite parts of the book. Lisa Gitelman read carefully and helped explain issues about documentation and versioning that I discuss in chapter 4. Matt Ratto read and commented on chapters 4-7, convinced me to drop a useless distinction, and to clarify the conclusion to chapter 7. Shay David provided strategic insights about openness from his own work and pushed me to explain the point of recursive publics more clearly. Biella Coleman has been a constant interlocutor on the issues in this book—her contributions are too deep, too various, and too thorough to detail. Her own work on Free Software and hackers has been a constant sounding board and guide, and it has been a pleasure to work together on our respective texts. Kim Fortun helped me figure it all out. ,{[PAGE xv]}, + +George Marcus hired me into a fantastic anthropology department and has had immense faith in this project throughout its lifetime. Paul Rabinow, Stephen Collier, and Andrew Lakoff have provided an extremely valuable setting—the Anthropology of the Contemporary Research Collaboratory—within which the arguments of this book developed in ways they could not have as a solitary project. Joe Dumit has encouraged and prodded and questioned and brainstormed and guided and inspired. Michael Fischer is the best mentor and advisor ever. He has read everything, has written much that precedes and shapes this work, and has been an unwavering supporter and friend throughout. + +Tish Stringer, Michael Powell, Valerie Olson, Ala Alazzeh, Lina Dib, Angela Rivas, Anthony Potoczniak, Ayla Samli, Ebru Kayaalp, Michael Kriz, Erkan Saka, Elise McCarthy, Elitza Ranova, Amanda Randall, Kris Peterson, Laura Jones, Nahal Naficy, Andrea Frolic, and Casey O’Donnell make my job rock. Scott McGill, Sarah Ellenzweig, Stephen Collier, Carl Pearson, Dan Wallach, Tracy Volz, Rich Doyle, Ussama Makdisi, Elora Shehabbudin, Michael Morrow, Taryn Kinney, Gregory Kaplan, Jane Greenberg, Hajime Nakatani, Kirsten Ostherr, Henning Schmidgen, Jason Danziger, Kayte Young, Nicholas King, Jennifer Fishman, Paul Drueke, Roberta Bivins, Sherri Roush, Stefan Timmermans, Laura Lark, and Susann Wilkinson either made Houston a wonderful place to be or provided an opportunity to escape it. I am especially happy that Thom Chivens has done both and more. + +The Center for the Study of Cultures provided me with a Faculty Fellowship in the fall of 2003, which allowed me to accomplish much of the work in conceptualizing the book. The Harvard History of Science Department and the MIT Program in History, Anthropology, and Social Studies of Science and Technology hosted me in the spring of 2005, allowing me to write most of chapters 7, 8, and 9. Rice University has been extremely generous in all respects, and a wonderful place to work. I’m most grateful for a junior sabbatical that gave me the chance to complete much of this book. John Hoffman graciously and generously allowed the use of the domain name twobits.net, in support of Free Software. Ken Wissoker, Courtney Berger, and the anonymous reviewers for Duke University Press have made this a much, much better book than when I started. ,{[PAGE xvi]}, + +My parents, Ted and Anne, and my brother, Kevin, have always been supportive and loving; though they claim to have no idea what I do, I nonetheless owe my small success to their constant support. Hannah Landecker has read and reread and rewritten every part of this work; she has made it and me better, and I love her dearly for it. Last, but not least, my new project, Ida Jane Kelty Landecker, is much cuter and smarter and funnier than Two Bits, and I love her for distracting me from it. + +1~introduction Introduction + +Introduction + +Around 1998 Free Software emerged from a happily subterranean and obscure existence stretching back roughly twenty years. At the very pinnacle of the dotcom boom, Free Software suddenly populated the pages of mainstream business journals, entered the strategy and planning discussions of executives, confounded the radar of political leaders and regulators around the globe, and permeated the consciousness of a generation of technophile teenagers growing up in the 1990s wondering how people ever lived without e-mail. Free Software appeared to be something shocking, something that economic history suggested could never exist: a practice of creating software—good software—that was privately owned, but freely and publicly accessible. Free Software, as its ambiguous moniker suggests, is both free from constraints and free of charge. Such characteristics seem to violate economic logic and the principles of private ownership and individual autonomy, yet there are tens of ,{[pg 2]}, millions of people creating this software and hundreds of millions more using it. Why? Why now? And most important: how? +={Free Software+3} + +Free Software is a set of practices for the distributed collaborative creation of software source code that is then made openly and freely available through a clever, unconventional use of copyright law.~{ A Note on Terminology: There is still debate about how to refer to Free Software, which is also known as Open Source Software. The scholarly community has adopted either FOSS or FLOSS (or F/LOSS): the former stands for the Anglo-American Free and Open Source Software; the latter stands for the continental Free, Libre and Open Source Software. Two Bits sticks to the simple term Free Software to refer to all of these things, except where it is specifically necessary to differentiate two or more names, or to specify people or events so named. The reason is primarily aesthetic and political, but Free Software is also the older term, as well as the one that includes issues of moral and social order. I explain in chapter 3 why there are two terms. }~ But it is much more: Free Software exemplifies a considerable reorientation of knowledge and power in contemporary society—a reorientation of power with respect to the creation, dissemination, and authorization of knowledge in the era of the Internet. This book is about the cultural significance of Free Software, and by cultural I mean much more than the exotic behavioral or sartorial traits of software programmers, fascinating though they be. By culture, I mean an ongoing experimental system, a space of modification and modulation, of figuring out and testing; culture is an experiment that is hard to keep an eye on, one that changes quickly and sometimes starkly. Culture as an experimental system crosses economies and governments, networked social spheres, and the infrastructure of knowledge and power within which our world functions today—or fails to. Free Software, as a cultural practice, weaves together a surprising range of places, objects, and people; it contains patterns, thresholds, and repetitions that are not simple or immediately obvious, either to the geeks who make Free Software or to those who want to understand it. It is my goal in this book to reveal some of those complex patterns and thresholds, both historically and anthropologically, and to explain not just what Free Software is but also how it has emerged in the recent past and will continue to change in the near future.~{ 2 Michael M. J. Fischer, "Culture and Cultural Analysis as Experimental Systems." }~ +={culture:as experimental system;Free Software:open source vs.+2|as experimental system;Geeks+1;Open Source:Free Software vs.+2;reorientation of power and knowledge+1} + +The significance of Free Software extends far beyond the arcane and detailed technical practices of software programmers and "geeks" (as I refer to them herein). Since about 1998, the practices and ideas of Free Software have extended into new realms of life and creativity: from software to music and film to science, engineering, and education; from national politics of intellectual property to global debates about civil society; from UNIX to Mac OS X and Windows; from medical records and databases to international disease monitoring and synthetic biology; from Open Source to open access. Free Software is no longer only about software—it exemplifies a more general reorientation of power and knowledge. +={Open access+2} + +The terms Free Software and Open Source don’t quite capture the extent of this reorientation or their own cultural significance. They ,{[pg 3]}, refer, quite narrowly, to the practice of creating software—an activity many people consider to be quite far from their experience. However, creating Free Software is more than that: it includes a unique combination of more familiar practices that range from creating and policing intellectual property to arguing about the meaning of "openness" to organizing and coordinating people and machines across locales and time zones. Taken together, these practices make Free Software distinct, significant, and meaningful both to those who create it and to those who take the time to understand how it comes into being. + +In order to analyze and illustrate the more general cultural significance of Free Software and its consequences, I introduce the concept of a "recursive public." A recursive public is a /{public that is vitally concerned with the material and practical maintenance and modification of the technical, legal, practical, and conceptual means of its own existence as a public; it is a collective independent of other forms of constituted power and is capable of speaking to existing forms of power through the production of actually existing alternatives.}/ Free Software is one instance of this concept, both as it has emerged in the recent past and as it undergoes transformation and differentiation in the near future. There are other instances, including those that emerge from the practices of Free Software, such as Creative Commons, the Connexions project, and the Open Access movement in science. These latter instances may or may not be Free Software, or even "software" projects per se, but they are connected through the same practices, and what makes them significant is that they may also be "recursive publics" in the sense I explore in this book. Recursive publics, and publics generally, differ from interest groups, corporations, unions, professions, churches, and other forms of organization because of their focus on the radical technological modifiability of their own terms of existence. In any public there inevitably arises a moment when the question of how things are said, who controls the means of communication, or whether each and everyone is being properly heard becomes an issue. A legitimate public sphere is one that gives outsiders a way in: they may or may not be heard, but they do not have to appeal to any authority (inside or outside the organization) in order to have a voice.~{ So, for instance, when a professional society founded on charters and ideals for membership and qualification speaks as a public, it represents its members, as when the American Medical Association argues for or against changes to Medicare. However, if a new group—say, of nurses—seeks not only to participate in this discussion—which may be possible, even welcomed—but to change the structure of representation in order to give themselves status equal to doctors, this change is impossible, for it goes against the very aims and principles of the society. Indeed, the nurses will be urged to form their own society, not to join that of the doctors, a proposition which gives the lie to the existing structures of power. By contrast, a public is an entity that is less controlled and hence more agonistic, such that nurses might join, speak, and insist on changing the terms of debate, just as patients, scientists, or homeless people might. Their success, however, depends entirely on the force with which their actions transform the focus and terms of the public. Concepts of the public sphere have been roundly critiqued in the last twenty years for presuming that such "equality of access" is sufficient to achieve representation, when in fact other contextual factors (race, class, sex) inherently weight the representative power of different participants. But these are two different and overlapping problems: one cannot solve the problem of pernicious, invisible forms of inequality unless one first solves the problem of ensuring a certain kind of structural publicity. It is precisely the focus on maintaining publicity for a recursive public, over against massive and powerful corporate and governmental attempts to restrict it, that I locate as the central struggle of Free Software. Gender certainly influences who gets heard within Free Software, for example, but it is a mistake to focus on this inequality at the expense of the larger, more threatening form of political failure that Free Software addresses. And I think there are plenty of geeks—man, woman and animal—who share this sentiment. }~ Such publics are not inherently modifiable, but are made so—and maintained—through the practices of participants. It is possible for Free Software as we know it to cease to be public, or to become just one more settled ,{[pg 4]}, form of power, but my focus is on the recent past and near future of something that is (for the time being) public in a radical and novel way. +={Connexions project;Creative Commons;public+6;recursive public:definition of} + +The concept of a recursive public is not meant to apply to any and every instance of a public—it is not a replacement for the concept of a "public sphere"—but is intended rather to give readers a specific and detailed sense of the non-obvious, but persistent threads that form the warp and weft of Free Software and to analyze similar and related projects that continue to emerge from it as novel and unprecedented forms of publicity and political action. + +At first glance, the thread tying these projects together seems to be the Internet. And indeed, the history and cultural significance of Free Software has been intricately mixed up with that of the Internet over the last thirty years. The Internet is a unique platform—an environment or an infrastructure—for Free Software. But the Internet looks the way it does because of Free Software. Free Software and the Internet are related like figure and ground or like system and environment; neither are stable or unchanging in and of themselves, and there are a number of practical, technical, and historical places where the two are essentially indistinguishable. The Internet is not itself a recursive public, but it is something vitally important to that public, something about which such publics care deeply and act to preserve. Throughout this book, I will return to these three phenomena: the Internet, a heterogeneous and diverse, though singular, infrastructure of technologies and uses; Free Software, a very specific set of technical, legal, and social practices that now require the Internet; and recursive publics, an analytic concept intended to clarify the relation of the first two. +={Internet+12:relation to Free Software;Free Software:relation to Internet;public sphere:theories of} + +Both the Internet and Free Software are historically specific, that is, not just any old new media or information technology. But the Internet is many, many specific things to many, many specific people. As one reviewer of an early manuscript version of this book noted, "For most people, the Internet is porn, stock quotes, Al Jazeera clips of executions, Skype, seeing pictures of the grandkids, porn, never having to buy another encyclopedia, MySpace, e-mail, online housing listings, Amazon, Googling potential romantic interests, etc. etc." It is impossible to explain all of these things; the meaning and significance of the proliferation of digital pornography is a very different concern than that of the fall of the print encyclopedia ,{[pg 5]}, and the rise of Wikipedia. Yet certain underlying practices relate these diverse phenomena to one another and help explain why they have occurred at this time and in this technical, legal, and social context. By looking carefully at Free Software and its modulations, I suggest, one can come to a better understanding of the changes affecting pornography, Wikipedia, stock quotes, and many other wonderful and terrifying things.~{ Wikipedia is perhaps the most widely known and generally familiar example of what this book is about. Even though it is not identified as such, it is in fact a Free Software project and a "modulation" of Free Software as I describe it here. The non-technically inclined reader might keep Wikipedia in mind as an example with which to follow the argument of this book. I will return to it explicitly in part 3. However, for better or for worse, there will be no discussion of pornography. }~ +={Wikipedia (collaborative encyclopedia)} + +Two Bits has three parts. Part I of this book introduces the reader to the concept of recursive publics by exploring the lives, works, and discussions of an international community of geeks brought together by their shared interest in the Internet. Chapter 1 asks, in an ethnographic voice, "Why do geeks associate with one another?" The answer—told via the story of Napster in 2000 and the standards process at the heart of the Internet—is that they are making a recursive public. Chapter 2 explores the words and attitudes of geeks more closely, focusing on the strange stories they tell (about the Protestant Reformation, about their practical everyday polymathy, about progress and enlightenment), stories that make sense of contemporary political economy in sometimes surprising ways. Central to part I is an explication of the ways in which geeks argue about technology but also argue with and through it, by building, modifying, and maintaining the very software, networks, and legal tools within which and by which they associate with one another. It is meant to give the reader a kind of visceral sense of why certain arrangements of technology, organization, and law—specifically that of the Internet and Free Software—are so vitally important to these geeks. +={geeks;Napster;technology:as argument} + +Part II takes a step back from ethnographic engagement to ask, "What is Free Software and why has it emerged at this point in history?" Part II is a historically detailed portrait of the emergence of Free Software beginning in 1998-99 and stretching back in time as far as the late 1950s; it recapitulates part I by examining Free Software as an exemplar of a recursive public. The five chapters in part II tell a coherent historical story, but each is focused on a separate component of Free Software. The stories in these chapters help distinguish the figure of Free Software from the ground of the Internet. The diversity of technical practices, economic concerns, information technologies, and legal and organizational practices is huge, and these five chapters distinguish and describe the specific practices in their historical contexts and settings: practices of ,{[pg 6]}, proselytizing and arguing, of sharing, porting, and forking source code, of conceptualizing openness and open systems, of creating Free Software copyright, and of coordinating people and source code. +={copyright+1} + +Part III returns to ethnographic engagement, analyzing two related projects inspired by Free Software which modulate one or more of the five components discussed in part II, that is, which take the practices as developed in Free Software and experiment with making something new and different. The two projects are Creative Commons, a nonprofit organization that creates copyright licenses, and Connexions, a project to develop an online scholarly textbook commons. By tracing the modulations of practices in detail, I ask, "Are these projects still Free Software?" and "Are these projects still recursive publics?" The answer to the first questions reveals how Free Software’s flexible practices are influencing specific forms of practice far from software programming, while the answer to the second question helps explain how Free Software, Creative Commons, Connexions, and projects like them are all related, strategic responses to the reorientation of power and knowledge. The conclusion raises a series of questions intended to help scholars looking at related phenomena. +={Connexions project;Creative Commons;Practices: five components of Free Software} + +!_ Recursive Publics and the Reorientation of Power and Knowledge +={public+3;legitimacy:circulation of knowledge and+8;reorientation of power and knowledge+14} + +Governance and control of the creation and dissemination of knowledge have changed considerably in the context of the Internet over the last thirty years. Nearly all kinds of media are easier to produce, publish, circulate, modify, mash-up, remix, or reuse. The number of such creations, circulations, and borrowings has exploded, and the tools of knowledge creation and circulation—software and networks—have also become more and more pervasively available. The results have also been explosive and include anxieties about validity, quality, ownership and control, moral panics galore, and new concerns about the shape and legitimacy of global "intellectual property" systems. All of these concerns amount to a reorientation of knowledge and power that is incomplete and emergent, and whose implications reach directly into the heart of the legitimacy, certainty, reliability and especially the finality and temporality of ,{[pg 7]}, the knowledge and infrastructures we collectively create. It is a reorientation at once more specific and more general than the grand diagnostic claims of an "information" or "network" society, or the rise of knowledge work or knowledge-based economies; it is more specific because it concerns precise and detailed technical and legal practices, more general because it is a cultural reorientation, not only an economic or legal one. +={information society} + +Free Software exemplifies this reorientation; it is not simply a technical pursuit but also the creation of a "public," a collective that asserts itself as a check on other constituted forms of power—like states, the church, and corporations—but which remains independent of these domains of power.~{ Although the term public clearly suggests private as its opposite, Free Software is not anticommercial. A very large amount of money, both real and notional, is involved in the creation of Free Software. The term recursive ,{[PAGE 313]}, market could also be used, in order to emphasize the importance (especially during the 1990s) of the economic features of the practice. The point is not to test whether Free Software is a "public" or a "market," but to construct a concept adequate to the practices that constitute it. }~ Free Software is a response to this reorientation that has resulted in a novel form of democratic political action, a means by which publics can be created and maintained in forms not at all familiar to us from the past. Free Software is a public of a particular kind: a recursive public. Recursive publics are publics concerned with the ability to build, control, modify, and maintain the infrastructure that allows them to come into being in the first place and which, in turn, constitutes their everyday practical commitments and the identities of the participants as creative and autonomous individuals. In the cases explored herein, that specific infrastructure includes the creation of the Internet itself, as well as its associated tools and structures, such as Usenet, e-mail, the World Wide Web (www), UNIX and UNIX-derived operating systems, protocols, standards, and standards processes. For the last thirty years, the Internet has been the subject of a contest in which Free Software has been both a central combatant and an important architect. +={recursive public: definition of+35;technology: politics of} + +By calling Free Software a recursive public, I am doing two things: first, I am drawing attention to the democratic and political significance of Free Software and the Internet; and second, I am suggesting that our current understanding (both academic and colloquial) of what counts as a self-governing public, or even as "the public," is radically inadequate to understanding the contemporary reorientation of knowledge and power. The first case is easy to make: it is obvious that there is something political about Free Software, but most casual observers assume, erroneously, that it is simply an ideological stance and that it is anti-intellectual property or technolibertarian. I hope to show how geeks do not start with ideologies, but instead come to them through their involvement in the ,{[pg 8]}, practices of creating Free Software and its derivatives. To be sure, there are ideologues aplenty, but there are far more people who start out thinking of themselves as libertarians or liberators, but who become something quite different through their participation in Free Software. + +The second case is more complex: why another contribution to the debate about the public and public spheres? There are two reasons I have found it necessary to invent, and to attempt to make precise, the concept of a recursive public: the first is to signal the need to include within the spectrum of political activity the creation, modification, and maintenance of software, networks, and legal documents. Coding, hacking, patching, sharing, compiling, and modifying of software are forms of political action that now routinely accompany familiar political forms of expression like free speech, assembly, petition, and a free press. Such activities are expressive in ways that conventional political theory and social science do not recognize: they can both express and "implement" ideas about the social and moral order of society. Software and networks can express ideas in the conventional written sense as well as create (express) infrastructures that allow ideas to circulate in novel and unexpected ways. At an analytic level, the concept of a recursive public is a way of insisting on the importance to public debate of the unruly technical materiality of a political order, not just the embodied discourse (however material) about that order. Throughout this book, I raise the question of how Free Software and the Internet are themselves a public, as well as what that public actually makes, builds, and maintains. +={public sphere: recursive public vs.;technology: as argument} + +The second reason I use the concept of a recursive public is that conventional publics have been described as "self-grounding," as constituted only through discourse in the conventional sense of speech, writing, and assembly.~{ See, for example, Warner, Publics and Counterpublics, 67-74. }~ Recursive publics are "recursive" not only because of the "self-grounding" of commitments and identities but also because they are concerned with the depth or strata of this self-grounding: the layers of technical and legal infrastructure which are necessary for, say, the Internet to exist as the infrastructure of a public. Every act of self-grounding that constitutes a public relies in turn on the existence of a medium or ground through which communication is possible—whether face-to-face speech, epistolary communication, or net-based assembly—and recursive publics relentlessly question the status of these media, suggesting ,{[pg 9]}, that they, too, must be independent for a public to be authentic. At each of these layers, technical and legal and organizational decisions can affect whether or not the infrastructure will allow, or even ensure, the continued existence of the recursive publics that are concerned with it. Recursive publics’ independence from power is not absolute; it is provisional and structured in response to the historically constituted layering of power and control within the infrastructures of computing and communication. +={recursive public: layers of+1} + +For instance, a very important aspect of the contemporary Internet, and one that has been fiercely disputed (recently under the banner of "net neutrality"), is its singularity: there is only one Internet. This was not an inevitable or a technically determined outcome, but the result of a contest in which a series of decisions were made about layers ranging from the very basic physical configuration of the Internet (packet-switched networks and routing systems indifferent to data types), to the standards and protocols that make it work (e.g., TCP/IP or DNS), to the applications that run on it (e-mail, www, ssh). The outcome of these decisions has been to privilege the singularity of the Internet and to champion its standardization, rather than to promote its fragmentation into multiple incompatible networks. These same kinds of decisions are routinely discussed, weighed, and programmed in the activity of various Free Software projects, as well as its derivatives. They are, I claim, decisions embedded in imaginations of order that are simultaneously moral and technical. +={Internet: singularity of;Net neutrality} + +By contrast, governments, corporations, nongovernmental organizations (NGOs), and other institutions have plenty of reasons—profit, security, control—to seek to fragment the Internet. But it is the check on this power provided by recursive publics and especially the practices that now make up Free Software that has kept the Internet whole to date. It is a check on power that is by no means absolute, but is nonetheless rigorously and technically concerned with its legitimacy and independence not only from state-based forms of power and control, but from corporate, commercial, and nongovernmental power as well. To the extent that the Internet is public and extensible (including the capability of creating private subnetworks), it is because of the practices discussed herein and their culmination in a recursive public. + +Recursive publics respond to governance by directly engaging in, maintaining, and often modifying the infrastructure they seek, as a ,{[pg 10]}, public, to inhabit and extend—and not only by offering opinions or protesting decisions, as conventional publics do (in most theories of the public sphere). Recursive publics seek to create what might be understood, enigmatically, as a constantly "self-leveling" level playing field. And it is in the attempt to make the playing field self-leveling that they confront and resist forms of power and control that seek to level it to the advantage of one or another large constituency: state, government, corporation, profession. It is important to understand that geeks do not simply want to level the playing field to their advantage—they have no affinity or identity as such. Instead, they wish to devise ways to give the playing field a certain kind of agency, effected through the agency of many different humans, but checked by its technical and legal structure and openness. Geeks do not wish to compete qua capitalists or entrepreneurs unless they can assure themselves that (qua public actors) that they can compete fairly. It is an ethic of justice shot through with an aesthetic of technical elegance and legal cleverness. +={affinity (of geeks)+1;public sphere: recursive public vs.+1;modifiability+6} + +The fact that recursive publics respond in this way—through direct engagement and modification—is a key aspect of the reorientation of power and knowledge that Free Software exemplifies. They are reconstituting the relationship between liberty and knowledge in a technically and historically specific context. Geeks create and modify and argue about licenses and source code and protocols and standards and revision control and ideologies of freedom and pragmatism not simply because these things are inherently or universally important, but because they concern the relationship of governance to the freedom of expression and nature of consent. Source code and copyright licenses, revision control and mailing lists are the pamphlets, coffeehouses, and salons of the twenty-first century: Tischgesellschaften become Schreibtischgesellschaften.~{ Habermas, The Structural Transformation of the Public Sphere, esp. 27-43. }~ +={technology:as argument} + +The "reorientation of power and knowledge" has two key aspects that are part of the concept of recursive publics: availability and modifiability (or adaptability). Availability is a broad, diffuse, and familiar issue. It includes things like transparency, open governance or transparent organization, secrecy and freedom of information, and open access in science. Availability includes the business-school theories of "disintermediation" and "transparency and accountability" and the spread of "audit culture" and so-called neoliberal regimes of governance; it is just as often the subject of suspicion as it is a kind of moral mandate, as in the case of open ,{[pg 11]}, access to scientific results and publications.~{ Critiques of the demand for availability and the putatively inherent superiority of transparency include Coombe and Herman, "Rhetorical Virtues" and "Your Second Life?"; Christen, "Gone Digital"; and Anderson and Bowery, "The Imaginary Politics of Access to Knowledge." }~ All of these issues are certainly touched on in detailed and practical ways in the creation of Free Software. Debates about the mode of availability of information made possible in the era of the Internet range from digital-rights management and copy protection, to national security and corporate espionage, to scientific progress and open societies. +={adaptability;modifiability+4;availability: open systems and+4} + +However, it is modifiability that is the most fascinating, and unnerving, aspect of the reorientation of power and knowledge. Modifiability includes the ability not only to access—that is, to reuse in the trivial sense of using something without restrictions—but to transform it for use in new contexts, to different ends, or in order to participate directly in its improvement and to redistribute or recirculate those improvements within the same infrastructures while securing the same rights for everyone else. In fact, the core practice of Free Software is the practice of reuse and modification of software source code. Reuse and modification are also the key ideas that projects modeled on Free Software (such as Connexions and Creative Commons) see as their goal. Creative Commons has as its motto "Culture always builds on the past," and they intend that to mean "through legal appropriation and modification." Connexions, which allows authors to create online bits and pieces of textbooks explicitly encourages authors to reuse work by other people, to modify it, and to make it their own. Modifiability therefore raises a very specific and important question about finality. When is something (software, a film, music, culture) finished? How long does it remain finished? Who decides? Or more generally, what does its temporality look like, and how does that temporality restructure political relationships? Such issues are generally familiar only to historians and literary scholars who understand the transformation of canons, the interplay of imitation and originality, and the theoretical questions raised, for instance, in textual scholarship. But the contemporary meaning of modification includes both a vast increase in the speed and scope of modifiability and a certain automation of the practice that was unfamiliar before the advent of sophisticated, distributed forms of software. +={Connexions project;Creative Commons;finality+2;modifiability: implications for finality+2;practices+3} + +Modifiability is an oft-claimed advantage of Free Software. It can be updated, modified, extended, or changed to deal with other changing environments: new hardware, new operating systems, unforeseen technologies, or new laws and practices. At an infrastructural level, such modifiability makes sense: it is a response to ,{[pg 12]}, and an alternative to technocratic forms of planning. It is a way of planning in the ability to plan out; an effort to continuously secure the ability to deal with surprise and unexpected outcomes; a way of making flexible, modifiable infrastructures like the Internet as safe as permanent, inflexible ones like roads and bridges. +={planning+1} + +But what is the cultural significance of modifiability? What does it mean to plan in modifiability to culture, to music, to education and science? At a clerical level, such a question is obvious whenever a scholar cannot recover a document written in WordPerfect 2.0 or on a disk for which there are no longer disk drives, or when a library archive considers saving both the media and the machines that read that media. Modifiability is an imperative for building infrastructures that can last longer. However, it is not only a solution to a clerical problem: it creates new possibilities and new problems for long-settled practices like publication, or the goals and structure of intellectual-property systems, or the definition of the finality, lifetime, monumentality, and especially, the identity of a work. Long-settled, seemingly unassailable practices—like the authority of published books or the power of governments to control information—are suddenly confounded and denaturalized by the techniques of modifiability. + +Over the last ten to fifteen years, as the Internet has spread exponentially and insinuated itself into the most intimate practices of all kinds of people, the issues of availability and modifiability and the reorientation of knowledge and power they signify have become commonplace. As this has happened, the significance and practices associated with Free Software have also spread—and been modulated in the process. These practices provide a material and meaningful starting point for an array of recursive publics who play with, modulate, and transform them as they debate and build new ways to share, create, license, and control their respective productions. They do not all share the same goals, immediate or long-term, but by engaging in the technical, legal, and social practices pioneered in Free Software, they do in fact share a "social imaginary" that defines a particular relationship between technology, organs of governance (whether state, corporate, or nongovernmental), and the Internet. Scientists in a lab or musicians in a band; scholars creating a textbook or social movements contemplating modes of organization and protest; government bureaucrats issuing data or journalists investigating corruption; corporations that manage ,{[pg 13]}, personal data or co-ops that monitor community development—all these groups and others may find themselves adopting, modulating, rejecting, or refining the practices that have made up Free Software in the recent past and will do so in the near future. +={social imaginary} + +!_ Experiment and Modulation +={cultural significance+1;Free Software:as experimental system+14} + +What exactly is Free Software? This question is, perhaps surprisingly, an incredibly common one in geek life. Debates about definition and discussions and denunciations are ubiquitous. As an anthropologist, I have routinely participated in such discussions and debates, and it is through my immediate participation that Two Bits opens. In part I I tell stories about geeks, stories that are meant to give the reader that classic anthropological sense of being thrown into another world. The stories reveal several general aspects of what geeks talk about and how they do so, without getting into what Free Software is in detail. I start in this way because my project started this way. I did not initially intend to study Free Software, but it was impossible to ignore its emergence and manifest centrality to geeks. The debates about the definition of Free Software that I participated in online and in the field eventually led me away from studying geeks per se and turned me toward the central research concern of this book: what is the cultural significance of Free Software? + +In part II what I offer is not a definition of Free Software, but a history of how it came to be. The story begins in 1998, with an important announcement by Netscape that it would give away the source code to its main product, Netscape Navigator, and works backward from this announcement into the stories of the UNIX operating system, "open systems," copyright law, the Internet, and tools for coordinating people and code. Together, these five stories constitute a description of how Free Software works as a practice. As a cultural analysis, these stories highlight just how experimental the practices are, and how individuals keep track of and modulate the practices along the way. +={Netscape+1;Netscape Navigator (application);openness+3;Open Systems} + +Netscape’s decision came at an important point in the life of Free Software. It was at just this moment that Free Software was becoming aware of itself as a coherent movement and not just a diverse amalgamation of projects, tools, or practices. Ironically, this ,{[pg 14]}, recognition also betokened a split: certain parties started to insist that the movement be called "Open Source" software instead, to highlight the practical over the ideological commitments of the movement. The proposal itself unleashed an enormous public discussion about what defined Free Software (or Open Source). This enigmatic event, in which a movement became aware of itself at the same time that it began to question its mission, is the subject of chapter 3. I use the term movement to designate one of the five core components of Free Software: the practices of argument and disagreement about the meaning of Free Software. Through these practices of discussion and critique, the other four practices start to come into relief, and participants in both Free Software and Open Source come to realize something surprising: for all the ideological distinctions at the level of discourse, they are doing exactly the same thing at the level of practice. The affect-laden histrionics with which geeks argue about the definition of what makes Free Software free or Open Source open can be matched only by the sober specificity of the detailed practices they share. +={movement (component of Free Software);Free Software: open source vs.;Open Source: Free Software vs.;sharing source code (component of Free Software)} + +The second component of Free Software is just such a mundane activity: sharing source code (chapter 4). It is an essential and fundamentally routine practice, but one with a history that reveals the goals of software portability, the interactions of commercial and academic software development, and the centrality of source code (and not only of abstract concepts) in pedagogical settings. The details of "sharing" source code also form the story of the rise and proliferation of the UNIX operating system and its myriad derivatives. + +The third component, conceptualizing openness (chapter 5), is about the specific technical and "moral" meanings of openness, especially as it emerged in the 1980s in the computer industry’s debates over "open systems." These debates concerned the creation of a particular infrastructure, including both technical standards and protocols (a standard UNIX and protocols for networks), and an ideal market infrastructure that would allow open systems to flourish. Chapter 5 is the story of the failure to achieve a market infrastructure for open systems, in part due to a significant blind spot: the role of intellectual property. +={Open Systems} + +The fourth component, applying copyright (and copyleft) licenses (chapter 6), involves the problem of intellectual property as it faced programmers and geeks in the late 1970s and early 1980s. In this ,{[pg 15]}, chapter I detail the story of the first Free Software license—the GNU General Public License (GPL)—which emerged out of a controversy around a very famous piece of software called EMACS. The controversy is coincident with changing laws (in 1976 and 1980) and changing practices in the software industry—a general drift from trade secret to copyright protection—and it is also a story about the vaunted "hacker ethic" that reveals it in its native practical setting, rather than as a rarefied list of rules. +={hacker ethic} + +The fifth component, the practice of coordination and collaboration (chapter 7), is the most talked about: the idea of tens or hundreds of thousands of people volunteering their time to contribute to the creation of complex software. In this chapter I show how novel forms of coordination developed in the 1990s and how they worked in the canonical cases of Apache and Linux; I also highlight how coordination facilitates the commitment to adaptability (or modifiability) over against planning and hierarchy, and how this commitment resolves the tension between individual virtuosity and the need for collective control. +={adaptability;Apache (Free Software project);coordination (component of Free Software);Linux (Free Software project)} + +Taken together, these five components make up Free Software—but they are not a definition. Within each of these five practices, many similar and dissimilar activities might reasonably be included. The point of such a redescription of the practices of Free Software is to conceptualize them as a kind of collective technical experimental system. Within each component are a range of differences in practice, from conventional to experimental. At the center, so to speak, are the most common and accepted versions of a practice; at the edges are more unusual or controversial versions. Together, the components make up an experimental system whose infrastructure is the Internet and whose "hypotheses" concern the reorientation of knowledge and power. +={experiment, collective technical+2} + +For example, one can hardly have Free Software without source code, but it need not be written in C (though the vast majority of it is); it can be written in Java or perl or TeX. However, if one stretches the meaning of source code to include music (sheet music as source and performance as binary), what happens? Is this still Free Software? What happens when both the sheet and the performance are "born digital"? Or, to take a different example, Free Software requires Free Software licenses, but the terms of these licenses are often changed and often heatedly discussed and vigilantly policed by geeks. What degree of change removes a license ,{[pg 16]}, from the realm of Free Software and why? How much flexibility is allowed? +={TeX;perl (programming language)} + +Conceived this way, Free Software is a system of thresholds, not of classification; the excitement that participants and observers sense comes from the modulation (experimentation) of each of these practices and the subsequent discovery of where the thresholds are. Many, many people have written their own "Free Software" copyright licenses, but only some of them remain within the threshold of the practice as defined by the system. Modulations happen whenever someone learns how some component of Free Software works and asks, "Can I try these practices out in some other domain?" +={modulation:of Free Software+4;Free Software:modulations of} + +The reality of constant modulation means that these five practices do not define Free Software once and for all; they define it with respect to its constitution in the contemporary. It is a set of practices defined "around the point" 1998-99, an intensive coordinate space that allows one to explore Free Software’s components prospectively and retrospectively: into the near future and the recent past. Free Software is a machine for charting the (re)emergence of a problematic of power and knowledge as it is filtered through the technical realities of the Internet and the political and economic configuration of the contemporary. Each of these practices has its own temporality of development and emergence, but they have recently come together into this full house called either Free Software or Open Source.~{ This description of Free Software could also be called an "assemblage." The most recent source for this is Rabinow, Anthropos Today. The language of thresholds and intensities is most clearly developed by Manuel DeLanda in A Thousand Years of Non-linear History and in Intensive Science and Virtual Philosophy. The term problematization, from Rabinow (which he channels from Foucault), is a synonym for the phrase "reorientation of knowledge and power" as I use it here. }~ + +Viewing Free Software as an experimental system has a strategic purpose in Two Bits. It sets the stage for part III, wherein I ask what kinds of modulations might no longer qualify as Free Software per se, but still qualify as recursive publics. It was around 2000 that talk of "commons" began to percolate out of discussions about Free Software: commons in educational materials, commons in biodiversity materials, commons in music, text, and video, commons in medical data, commons in scientific results and data.~{ See Kelty, "Culture’s Open Sources." }~ On the one hand, it was continuous with interest in creating "digital archives" or "online collections" or "digital libraries"; on the other hand, it was a conjugation of the digital collection with the problems and practices of intellectual property. The very term commons—at once a new name and a theoretical object of investigation—was meant to suggest something more than simply a collection, whether of ,{[pg 17]}, digital objects or anything else; it was meant to signal the public interest, collective management, and legal status of the collection.~{ The genealogy of the term commons has a number of sources. An obvious source is Garrett Hardin’s famous 1968 article "The Tragedy of the Commons." James Boyle has done more than anyone to specify the term, especially during a 2001 conference on the public domain, which included the inspired guest-list juxtaposition of the appropriation-happy musical collective Negativland and the dame of "commons" studies, Elinor Ostrom, whose book Governing the Commons has served as a certain inspiration for thinking about commons versus public domains. Boyle, for his part, has ceaselessly pushed the "environmental" metaphor of speaking for the public domain as environmentalists of the 1960s and 1970s spoke for the environment (see Boyle, "The Second Enclosure Movement and the Construction of the Public Domain" and "A Politics of Intellectual Property"). The term commons is useful in this context precisely because it distinguishes the "public domain" as an imagined object of pure public transaction and coordination, as opposed to a "commons," which can consist of privately owned things/spaces that are managed in such a fashion that they effectively function like a "public domain" is imagined to (see Boyle, "The Public Domain"; Hess and Ostrom, Understanding Knowledge as a Commons). }~ +={commons+2} + +In part III, I look in detail at two "commons" understood as modulations of the component practices of Free Software. Rather than treating commons projects simply as metaphorical or inspirational uses of Free Software, I treat them as modulations, which allows me to remain directly connected to the changing practices involved. The goal of part III is to understand how commons projects like Connexions and Creative Commons breach the thresholds of these practices and yet maintain something of the same orientation. What changes, for instance, have made it possible to imagine new forms of free content, free culture, open source music, or a science commons? What happens as new communities of people adopt and modulate the five component practices? Do they also become recursive publics, concerned with the maintenance and expansion of the infrastructures that allow them to come into being in the first place? Are they concerned with the implications of availability and modifiability that continue to unfold, continue to be figured out, in the realms of education, music, film, science, and writing? +={Connexions project+1;Creative Commons+1;figuring out+1;modifiability+1} + +The answers in part III make clear that, so far, these concerns are alive and well in the modulations of Free Software: Creative Commons and Connexions each struggle to come to terms with new ways of creating, sharing, and reusing content in the contemporary legal environment, with the Internet as infrastructure. Chapters 8 and 9 provide a detailed analysis of a technical and legal experiment: a modulation that begins with source code, but quickly requires modulations in licensing arrangements and forms of coordination. It is here that Two Bits provides the most detailed story of figuring out set against the background of the reorientation of knowledge and power. This story is, in particular, one of reuse, of modifiability and the problems that emerge in the attempt to build it into the everyday practices of pedagogical writing and cultural production of myriad forms. Doing so leads the actors involved directly to the question of the existence and ontology of norms: norms of scholarly production, borrowing, reuse, citation, reputation, and ownership. These last chapters open up questions about the stability of modern knowledge, not as an archival or a legal problem, but as a social and normative one; they raise questions about the invention and control of norms, and the forms of life that may emerge from these ,{[pg 18]}, practices. Recursive publics come to exist where it is clear that such invention and control need to be widely shared, openly examined, and carefully monitored. +={norms:existence of} + +!_ Three Ways of Looking at Two Bits + +Two Bits makes three kinds of scholarly contributions: empirical, methodological, and theoretical. Because it is based largely on fieldwork (which includes historical and archival work), these three contributions are often mixed up with each other. Fieldwork, especially in cultural and social anthropology in the last thirty years, has come to be understood less and less as one particular tool in a methodological toolbox, and more and more as distinctive mode of epistemological encounter.~{ Marcus and Fischer, Anthropology as Cultural Critique; Marcus and Clifford, Writing Culture; Fischer, Emergent Forms of Life and the Anthropological Voice; Marcus, Ethnography through Thick and Thin; Rabinow, Essays on the Anthropology of Reason and Anthropos Today. }~ The questions I began with emerged out of science and technology studies, but they might end up making sense to a variety of fields, ranging from legal studies to computer science. + +Empirically speaking, the actors in my stories are figuring something out, something unfamiliar, troubling, imprecise, and occasionally shocking to everyone involved at different times and to differing extents.~{ The language of "figuring out" has its immediate source in the work of Kim Fortun, "Figuring Out Ethnography." Fortun’s work refines two other sources, the work of Bruno Latour in Science in Action and that of Hans-Jorg Rheinberger in Towards History of Epistemic Things. Latour describes the difference between "science made" and "science in the making" and how the careful analysis of new objects can reveal how they come to be. Rheinberger extends this approach through analysis of the detailed practices involved in figuring out a new object or a new process—practices which participants cannot quite name or explain in precise terms until after the fact. }~ There are two kinds of figuring-out stories: the contemporary ones in which I have been an active participant (those of Connexions and Creative Commons), and the historical ones conducted through "archival" research and rereading of certain kinds of texts, discussions, and analyses-at-the-time (those of UNIX, EMACS, Linux, Apache, and Open Systems). Some are stories of technical figuring out, but most are stories of figuring out a problem that appears to have emerged. Some of these stories involve callow and earnest actors, some involve scheming and strategy, but in all of them the figuring out is presented "in the making" and not as something that can be conveniently narrated as obvious and uncontested with the benefit of hindsight. Throughout this book, I tell stories that illustrate what geeks are like in some respects, but, more important, that show them in the midst of figuring things out—a practice that can happen both in discussion and in the course of designing, planning, executing, writing, debugging, hacking, and fixing. +={Connexions project;Creative Commons;figuring out+1} + +There are also myriad ways in which geeks narrate their own actions to themselves and others, as they figure things out. Indeed, ,{[pg 19]}, there is no crisis of representing the other here: geeks are vocal, loud, persistent, and loquacious. The superalterns can speak for themselves. However, such representations should not necessarily be taken as evidence that geeks provide adequate analytic or critical explanations of their own actions. Some of the available writing provides excellent description, but distracting analysis. Eric Raymond’s work is an example of such a combination.~{ Raymond, The Cathedral and the Bazaar. }~ Over the course of my fieldwork, Raymond’s work has always been present as an excellent guide to the practices and questions that plague geeks—much like a classic "principal informant" in anthropology. And yet his analyses, which many geeks subscribe to, are distracting. They are fanciful, occasionally enjoyable and enlightening—but they are not about the cultural significance of Free Software. As such I am less interested in treating geeks as natives to be explained and more interested in arguing with them: the people in Two Bits are a sine qua non of the ethnography, but they are not the objects of its analysis.~{ The literature on "virtual communities," "online communities," the culture of hackers and geeks, or the social study of information technology offers important background information, although it is not the subject of this book. A comprehensive review of work in anthropology and related disciplines is Wilson and Peterson, "The Anthropology of Online Communities." Other touchstones are Miller and Slater, The Internet; Carla Freeman, High Tech and High Heels in the Global Economy; Hine, Virtual Ethnography; Kling, Computerization and Controversy; Star, The Cultures of Computing; Castells, The Rise of the Network Society; Boczkowski, Digitizing the News. Most social-science work in information technology has dealt with questions of inequality and the so-called digital divide, an excellent overview being DiMaggio et al., "From Unequal Access to Differentiated Use." Beyond works in anthropology and science studies, a number of works from various other disciplines have recently taken up similar themes, especially Adrian MacKenzie, Cutting Code; Galloway, Protocol; Hui Kyong Chun, Control and Freedom; and Liu, Laws of Cool. By contrast, if social-science studies of information technology are set against a background of historical and ethnographic studies of "figuring out" problems of specific information technologies, software, or networks, then the literature is sparse. Examples of anthropology and science studies of figuring out include Barry, Political Machines; Hayden, When Nature Goes Public; and Fortun, Advocating Bhopal. Matt Ratto has also portrayed this activity in Free Software in his dissertation, "The Pressure of Openness." }~ +={ethnography+1;geeks:self-representation;Raymond, Eric Steven+1;Cathedral and the Bazaar} + +Because the stories I tell here are in fact recent by the standards of historical scholarship, there is not much by way of comparison in terms of the empirical material. I rely on a number of books and articles on the history of the early Internet, especially Janet Abbate’s scholarship and the single historical work on UNIX, Peter Salus’s A Quarter Century of Unix.~{ In addition to Abbate and Salus, see Norberg and O’Neill, Transforming Computer Technology; Naughton, A Brief History of the Future; Hafner, Where Wizards Stay Up Late; Waldrop, The Dream Machine; Segaller, Nerds 2.0.1. For a classic autodocumentation of one aspect of the Internet, see Hauben and Hauben, Netizens. }~ There are also a couple of excellent journalistic works, such as Glyn Moody’s Rebel Code: Inside Linux and the Open Source Revolution (which, like Two Bits, relies heavily on the novel accessibility of detailed discussions carried out on public mailing lists). Similarly, the scholarship on Free Software and its history is just starting to establish itself around a coherent set of questions.~{ Kelty, "Culture’s Open Sources"; Coleman, "The Social Construction of Freedom"; Ratto, "The Pressure of Openness"; Joseph Feller et al., Perspectives ,{[pg 315]}, on Free and Open Source Software; see also http://freesoftware.mit.edu/, organized by Karim Lakhani, which is a large collection of work on Free Software projects. Early work in this area derived both from the writings of practitioners such as Raymond and from business and management scholars who noticed in Free Software a remarkable, surprising set of seeming contradictions. The best of these works to date is Steven Weber, The Success of Open Source. Weber’s conclusions are similar to those presented here, and he has a kind of cryptoethnographic familiarity (that he does not explicitly avow) with the actors and practices. Yochai Benkler’s Wealth of Networks extends and generalizes some of Weber’s argument. }~ +={Moody, Glyn;Salus, Peter} + +Methodologically, Two Bits provides an example of how to study distributed phenomena ethnographically. Free Software and the Internet are objects that do not have a single geographic site at which they can be studied. Hence, this work is multisited in the simple sense of having multiple sites at which these objects were investigated: Boston, Bangalore, Berlin, Houston. It was conducted among particular people, projects, and companies and at conferences and online gatherings too numerous to list, but it has not been a study of a single Free Software project distributed around the globe. In all of these places and projects the geeks I worked with were randomly and loosely affiliated people with diverse lives and histories. Some ,{[pg 20]}, identified as Free Software hackers, but most did not. Some had never met each other in real life, and some had. They represented multiple corporations and institutions, and came from diverse nations, but they nonetheless shared a certain set of ideas and idioms that made it possible for me to travel from Boston to Berlin to Bangalore and pick up an ongoing conversation with different people, in very different places, without missing a beat. +={Berlin;distributed phenomena, ethnography of+6} + +The study of distributed phenomena does not necessarily imply the detailed, local study of each instance of a phenomenon, nor does it necessitate visiting every relevant geographical site—indeed, such a project is not only extremely difficult, but confuses map and territory. As Max Weber put it, "It is not the ‘actual’ inter-connection of ‘things’ but the conceptual inter-connection of problems that define the scope of the various sciences."~{ Max Weber, "Objectivity in the Social Sciences and Social Policy," 68. }~ The decisions about where to go, whom to study, and how to think about Free Software are arbitrary in the precise sense that because the phenomena are so widely distributed, it is possible to make any given node into a source of rich and detailed knowledge about the distributed phenomena itself, not only about the local site. Thus, for instance, the Connexions project would probably have remained largely unknown to me had I not taken a job in Houston, but it nevertheless possesses precise, identifiable connections to the other sites and sets of people that I have studied, and is therefore recognizable as part of this distributed phenomena, rather than some other. I was actively looking for something like Connexions in order to ask questions about what was becoming of Free Software and how it was transforming. Had there been no Connexions in my back yard, another similar field site would have served instead. +={Weber, Max} + +It is in this sense that the ethnographic object of this study is not geeks and not any particular project or place or set of people, but Free Software and the Internet. Even more precisely, the ethnographic object of this study is "recursive publics"—except that this concept is also the work of the ethnography, not its preliminary object. I could not have identified "recursive publics" as the object of the ethnography at the outset, and this is nice proof that ethnographic work is a particular kind of epistemological encounter, an encounter that requires considerable conceptual work during and after the material labor of fieldwork, and throughout the material labor of writing and rewriting, in order to make sense of and reorient it into a question that will have looked deliberate and ,{[pg 21]}, answerable in hindsight. Ethnography of this sort requires a long-term commitment and an ability to see past the obvious surface of rapid transformation to a more obscure and slower temporality of cultural significance, yet still pose questions and refine debates about the near future.~{ Despite what might sound like a "shoot first, ask questions later" approach, the design of this project was in fact conducted according to specific methodologies. The most salient is actor-network theory: Latour, Science in Action; Law, "Technology and Heterogeneous Engineering"; Callon, "Some Elements of a Sociology of Translation"; Latour, Pandora’s Hope; Latour, Re-assembling the Social; Callon, Laws of the Markets; Law and Hassard, Actor Network Theory and After. Ironically, there have been no actor-network studies of networks, which is to say, of particular information and communication technologies such as the Internet. The confusion of the word network (as an analytical and methodological term) with that of network (as a particular configuration of wires, waves, software, and chips, or of people, roads, and buses, or of databases, names, and diseases) means that it is necessary to always distinguish this-network-here from any-network-whatsoever. My approach shares much with the ontological questions raised in works such as Law, Aircraft Stories; Mol, The Body Multiple; Cussins, "Ontological Choreography"; Charis Thompson, Making Parents; and Dumit, Picturing Personhood. }~ Historically speaking, the chapters of part II can be understood as a contribution to a history of scientific infrastructure—or perhaps to an understanding of large-scale, collective experimentation.~{ I understand a concern with scientific infrastructure to begin with Steve Shapin and Simon Schaffer in Leviathan and the Air Pump, but the genealogy is no doubt more complex. It includes Shapin, The Social History of Truth; Biagioli, Galileo, Courtier; Galison, How Experiments End and Image and Logic; Daston, Biographies of Scientific Objects; Johns, The Nature of the Book. A whole range of works explore the issue of scientific tools and infrastructure: Kohler, Lords of the Fly; Rheinberger, Towards a History of Epistemic Things; Landecker, Culturing Life; Keating and Cambrosio, Biomedical Platforms. Bruno Latour’s "What Rules of Method for the New Socio-scientific Experiments" provides one example of where science studies might go with these questions. Important texts on the subject of technical infrastructures include Walsh and Bayma, "Computer Networks and Scientific Work"; Bowker and Star, Sorting Things Out; Edwards, The ,{[pg 316]}, Closed World; Misa, Brey, and Feenberg, Modernity and Technology; Star and Ruhleder, "Steps Towards an Ecology of Infrastructure." }~ The Internet and Free Software are each an important practical transformation that will have effects on the practice of science and a kind of complex technical practice for which there are few existing models of study. +={Actor Network Theory;Internet+1} + +A methodological note about the peculiarity of my subject is also in order. The Attentive Reader will note that there are very few fragments of conventional ethnographic material (i.e., interviews or notes) transcribed herein. Where they do appear, they tend to be "publicly available"—which is to say, accessible via the Internet—and are cited as such, with as much detail as necessary to allow the reader to recover them. Conventional wisdom in both anthropology and history has it that what makes a study interesting, in part, is the work a researcher has put into gathering that which is not already available, that is, primary sources as opposed to secondary sources. In some cases I provide that primary access (specifically in chapters 2, 8, and 9), but in many others it is now literally impossible: nearly everything is archived. Discussions, fights, collaborations, talks, papers, software, articles, news stories, history, old software, old software manuals, reminiscences, notes, and drawings—it is all saved by someone, somewhere, and, more important, often made instantly available by those who collect it. The range of conversations and interactions that count as private (either in the sense of disappearing from written memory or of being accessible only to the parties involved) has shrunk demonstrably since about 1981. +={ethnographic data:availability of+5} + +Such obsessive archiving means that ethnographic research is stratified in time. Questions that would otherwise have required "being there" are much easier to research after the fact, and this is most evident in my reconstruction from sources on USENET and mailing lists in chapters 1, 6, and 7. The overwhelming availability of quasi-archival materials is something I refer to, in a play on the EMACS text editor, as "self-documenting history." That is to say, one of the activities that geeks love to participate in, and encourage, is the creation, analysis, and archiving of their own roles in the ,{[pg 22]}, development of the Internet. No matter how obscure or arcane, it seems most geeks have a well-developed sense of possibility—their contribution could turn out to have been transformative, important, originary. What geeks may lack in social adroitness, they make up for in archival hubris. + +Finally, the theoretical contribution of Two Bits consists of a refinement of debates about publics, public spheres, and social imaginaries that appear troubled in the context of the Internet and Free Software. Terminology such as virtual community, online community, cyberspace, network society, or information society are generally not theoretical constructs, but ways of designating a subgenre of disciplinary research having to do with electronic networks. The need for a more precise analysis of the kinds of association that take place on and through information technology is clear; the first step is to make precise which information technologies and which specific practices make a difference. +={public sphere:theories of+3;social imaginary+2;information society:see also public sphere} + +There is a relatively large and growing literature on the Internet as a public sphere, but such literature is generally less concerned with refining the concept through research and more concerned with pronouncing whether or not the Internet fits Habermas’s definition of the bourgeois public sphere, a definition primarily conceived to account for the eighteenth century in Britain, not the twenty-first-century Internet.~{ Dreyfus, On the Internet; Dean, "Why the Net Is Not a Public Sphere." }~ The facts of technical and human life, as they unfold through the Internet and around the practices of Free Software, are not easy to cram into Habermas’s definition. The goal of Two Bits is not to do so, but to offer conceptual clarity based in ethnographic fieldwork. +={Habermas, Jürgen+2} + +The key texts for understanding the concept of recursive publics are the works of Habermas, Charles Taylor’s Modern Social Imaginaries, and Michael Warner’s The Letters of the Republic and Publics and Counterpublics. Secondary texts that refine these notions are John Dewey’s The Public and Its Problems and Hannah Arendt’s The Human Condition. Here it is not the public sphere per se that is the center of analysis, but the "ideas of modern moral and social order" and the terminology of "modern social imaginaries."~{ In addition, see Lippmann, The Phantom Public; Calhoun, Habermas and the Public Sphere; Latour and Weibel, Making Things Public. The debate about social imaginaries begins alternately with Benedict Anderson’s Imagined Communities or with Cornelius Castoriadis’s The Imaginary Institution of Society; see also Chatterjee, "A Response to Taylor’s ‘Modes of Civil Society’"; Gaonkar, "Toward New Imaginaries"; Charles Taylor, "Modes of Civil Society" and Sources of the Self. }~ I find these concepts to be useful as starting points for a very specific reason: to distinguish the meaning of moral order from the meaning of moral and technical order that I explore with respect to geeks. I do not seek to test the concept of social imaginary here, but to build something on top of it. ,{[pg 23]}, +={Arendt, Hannah;Taylor, Charles} + +If recursive public is a useful concept, it is because it helps elaborate the general question of the "reorientation of knowledge and power." In particular it is meant to bring into relief the ways in which the Internet and Free Software are related to the political economy of modern society through the creation not only of new knowledge, but of new infrastructures for circulating, maintaining, and modifying it. Just as Warner’s book The Letters of the Republic was concerned with the emergence of the discourse of republicanism and the simultaneous development of an American republic of letters, or as Habermas’s analysis was concerned with the relationship of the bourgeois public sphere to the democratic revolutions of the eighteenth century, this book asks a similar series of questions: how are the emergent practices of recursive publics related to emerging relations of political and technical life in a world that submits to the Internet and its forms of circulation? Is there still a role for a republic of letters, much less a species of public that can seriously claim independence and autonomy from other constituted forms of power? Are Habermas’s pessimistic critiques of the bankruptcy of the public sphere in the twentieth century equally applicable to the structures of the twenty-first century? Or is it possible that recursive publics represent a reemergence of strong, authentic publics in a world shot through with cynicism and suspicion about mass media, verifiable knowledge, and enlightenment rationality? +[PAGE 24: BLANK] + +:B~ Part I the internet + +1~part1 [the internet] -# + +_1 The concept of the state, like most concepts which are introduced by "The," is both too rigid and too tied up with controversies to be of ready use. It is a concept which can be approached by a flank movement more easily than by a frontal attack. The moment we utter the words "The State" a score of intellectual ghosts rise to obscure our vision. Without our intention and without our notice, the notion of "The State" draws us imperceptibly into a consideration of the logical relationship of various ideas to one another, and away from the facts of human activity. It is better, if possible, to start from the latter and see if we are not led thereby into an idea of something which will turn out to implicate the marks and signs which characterize political behavior. +={Dewey, John} + +- john dewey, /{The Public and Its Problems}/ + +1~ 1. Geeks and Recursive Publics +={recursive public+12;geeks+6} + +% Geek entry added here as seems implied as relevant to section + +Since about 1997, I have been living with geeks online and off. I have been drawn from Boston to Bangalore to Berlin to Houston to Palo Alto, from conferences and workshops to launch parties, pubs, and Internet Relay Chats (IRCs). All along the way in my research questions of commitment and practice, of ideology and imagination have arisen, even as the exact nature of the connections between these people and ideas remained obscure to me: what binds geeks together? As my fieldwork pulled me from a Boston start-up company that worked with radiological images to media labs in Berlin to young entrepreneurial elites in Bangalore, my logistical question eventually developed into an analytical concept: geeks are bound together as a recursive public. +={Berlin+2;Internet+5} + +How did I come to understand geeks as a public constituted around the technical and moral ideas of order that allow them to associate with one another? Through this question, one can start to understand the larger narrative of Two Bits: that of Free Software ,{[pg 28]}, as an exemplary instance of a recursive public and as a set of practices that allow such publics to expand and spread. In this chapter I describe, ethnographically, the diverse, dispersed, and as an exemplary instance of a recursive public and as a set of practices that allow such publics to expand and spread. In this chapter I describe, ethnographically, the diverse, dispersed, and novel forms of entanglements that bind geeks together, and I construct the concept of a recursive public in order to explain these entanglements. +={ethnography+1;moral and technical order+3} + +A recursive public is a public that is constituted by a shared concern for maintaining the means of association through which they come together as a public. Geeks find affinity with one another because they share an abiding moral imagination of the technical infrastructure, the Internet, that has allowed them to develop and maintain this affinity in the first place. I elaborate the concept of recursive public (which is not a term used by geeks) in relation to theories of ideology, publics, and public spheres and social imaginaries. I illustrate the concept through ethnographic stories and examples that highlight geeks’ imaginations of the technical and moral order of the Internet. These stories include those of the fate of Amicas, a Boston-based healthcare start-up, between 1997 and 2003, of my participation with new media academics and activists in Berlin in 1999-2001, and of the activities of a group of largely Bangalore-based information technology (IT) professionals on and offline, especially concerning the events surrounding the peer-topeer file sharing application Napster in 2000-2001. +={affinity (of geeks)+3;Napster+2} + +The phrase "moral and technical order" signals both technology—principally software, hardware, networks, and protocols—and an imagination of the proper order of collective political and commercial action, that is, how economy and society should be ordered collectively. Recursive publics are just as concerned with the moral order of markets as they are with that of commons; they are not anticommercial or antigovernment. They exist independent of, and as a check on, constituted forms of power, which include markets and corporations. Unlike other concepts of a public or of a public sphere, "recursive public" captures the fact that geeks’ principal mode of associating and acting is through the medium of the Internet, and it is through this medium that a recursive public can come into being in the first place. The Internet is not itself a public sphere, a public, or a recursive public, but a complex, heterogeneous infrastructure that constitutes and constrains geeks’ everyday practical commitments, their ability to "become public" or to compose a common world. As such, their participation qua recursive publics structures their identity as creative and autonomous ,{[pg 29]}, individuals. The fact that the geeks described here have been brought together by mailing lists and e-mail, bulletin-board services and Web sites, books and modems, air travel and academia, and cross-talking and cross-posting in ways that were not possible before the Internet is at the core of their own reasoning about why they associate with each other. They are the builders and imaginers of this space, and the space is what allows them to build and imagine it. + +Why recursive? I call such publics recursive for two reasons: first, in order to signal that this kind of public includes the activities of making, maintaining, and modifying software and networks, as well as the more conventional discourse that is thereby enabled; and second, in order to suggest the recursive "depth" of the public, the series of technical and legal layers—from applications to protocols to the physical infrastructures of waves and wires—that are the subject of this making, maintaining, and modifying. The first of these characteristics is evident in the fact that geeks use technology as a kind of argument, for a specific kind of order: they argue about technology, but they also argue through it. They express ideas, but they also express infrastructures through which ideas can be expressed (and circulated) in new ways. The second of these characteristics—regarding layers—is reflected in the ability of geeks to immediately see connections between, for example, Napster (a user application) and TCP/IP (a network protocol) and to draw out implications for both of them. By connecting these layers, Napster comes to represent the Internet in miniature. The question of where these layers stop (hardware? laws and regulations? physical constants? etc.) circumscribes the limits of the imagination of technical and moral order shared by geeks. +={recursive public:layers of;technology:as argument} + +Above all, "recursive public" is a concept—not a thing. It is intended to make distinctions, allow comparison, highlight salient features, and relate two diverse kinds of things (the Internet and Free Software) in a particular historical context of changing relations of power and knowledge. The stories in this chapter (and throughout the book) give some sense of how geeks interact and what they do technically and legally, but the concept of a recursive public provides a way of explaining why geeks (or people involved in Free Software or its derivatives) associate with one another, as well as a way of testing whether other similar cases of contemporary, technologically mediated affinity are similarly structured. ,{[pg 30]}, + +!_ Recursion +={recursion, definition of+5} + + +_1 Recursion (or "recursive") is a mathematical concept, one which is a standard feature of any education in computer programming. The definition from the Oxford English Dictionary reads: "2. a. Involving or being a repeated procedure such that the required result at each step except the last is given in terms of the result(s) of the next step, until after a finite number of steps a terminus is reached with an outright evaluation of the result." It should be distinguished from simple iteration or repetition. Recursion is always subject to a limit and is more like a process of repeated deferral, until the last step in the process, at which point all the deferred steps are calculated and the result given. + +_1 Recursion is powerful in programming because it allows for the definition of procedures in terms of themselves—something that seems at first counterintuitive. So, for example, + +group{ + + ; otherwise return n times factorial of n-1; + (defun (factorial n) ; This is the name of the function and its input n. + (if (=n 1) ; This is the final limit, or recursive depth + 1 ; if n=1, then return 1 + (* n (factorial (- n 1))))) + ; call the procedure from within itself, and + ; calculate the next step of the result before + ; giving an answer.1 + +}group +={Abelson, Hal} + +_1 In Two Bits a recursive public is one whose existence (which consists solely in address through discourse) is only possible through discursive and technical reference to the means of creating this public. Recursiveness is always contingent on a limit which determines the depth of a recursive procedure. So, for instance, a Free Software project may depend on some other kind of software or operating system, which may in turn depend on particular open protocols or a particular process, which in turn depend on certain kinds of hardware that implement them. The "depth" of recursion is determined by the openness necessary for the project itself. +={recursive public:layers of} + +_1 James Boyle has also noted the recursive nature, in particular, of Free Software: "What’s more, and this is a truly fascinating twist, when the production process does need more centralized coordination, some governance that guides how the sticky modular bits are put together, it is at least theoretically possible that we can come up with the control system in exactly the same way. In this sense, distributed production is potentially recursive."2 +={Boyle, James} + +_1 1. Abelson and Sussman, The Structure and Interpretation of Computer Programs, 30. + +_1 2. Boyle, "The Second Enclosure Movement and the Construction of the Public Domain," 46. ,{[pg 31]}, + +2~ From the Facts of Human Activity + +Boston, May 2003. Starbucks. Sean and Adrian are on their way to pick me up for dinner. I’ve already had too much coffee, so I sit at the window reading the paper. Eventually Adrian calls to find out where I am, I tell him, and he promises to show up in fifteen minutes. I get bored and go outside to wait, watch the traffic go by. More or less right on time (only post-dotcom is Adrian ever on time), Sean’s new blue VW Beetle rolls into view. Adrian jumps out of the passenger seat and into the back, and I get in. Sean has been driving for a little over a year. He seems confident, cautious, but meanders through the streets of Cambridge. We are destined for Winchester, a township on the Charles River, in order to go to an Indian restaurant that one of Sean’s friends has recommended. When I ask how they are doing, they say, "Good, good." Adrian offers, "Well, Sean’s better than he has been in two years." "Really?" I say, impressed. +={Doyle, Sean+6;Gropper, Adrian+6} + +Sean says, "Well, happier than at least the last year. I, well, let me put it this way: forgive me father for I have sinned, I still have unclean thoughts about some of the upper management in the company, I occasionally think they are not doing things in the best interest of the company, and I see them as self-serving and sometimes wish them ill." In this rolling blue confessional Sean describes some of the people who I am familiar with whom he now tries very hard not to think about. I look at him and say, "Ten Hail Marys and ten Our Fathers, and you will be absolved, my child." Turning to Adrian, I ask, "And what about you?" Adrian continues the joke: "I, too, have sinned. I have reached the point where I can see absolutely nothing good coming of this company but that I can keep my investments in it long enough to pay for my children’s college tuition." I say, "You, my son, I cannot help." Sean says, "Well, funny thing about tainted money . . . there just taint enough of it." + +I am awestruck. When I met Sean and Adrian, in 1997, their start-up company, Amicas, was full of spit, with five employees working out of Adrian’s living room and big plans to revolutionize the medical-imaging world. They had connived to get Massachusetts General Hospital to install their rudimentary system and let it compete with the big corporate sloths that normally stalked back offices: General Electric, Agfa, Siemens. It was these behemoths, according to Sean and Adrian, that were bilking hospitals ,{[pg 32]}, and healthcare providers with promises of cure-all technologies and horribly designed "silos," "legacy systems," and other closed-system monsters of corporate IT harkening back to the days of IBM mainframes. These beasts obviously did not belong to the gleaming future of Internet-enabled scalability. By June of 2000, Amicas had hired new "professional" management, moved to Watertown, and grown to about a hundred employees. They had achieved their goal of creating an alternative Picture Archiving and Communication System (PACS) for use in hospital radiology departments and based on Internet standards. +={Amicas (corporation)+9;standards:Internet;proprietary systems: closed} + +At that point, in the spring of 2000, Sean could still cheerfully introduce me to his new boss—the same man he would come to hate, inasmuch as Sean hates anyone. But by 2002 he was frustrated by the extraordinary variety of corner-cutting and, more particularly, by the complacency with which management ignored his recommendations and released software that was almost certainly going to fail later, if not sooner. Sean, who is sort of permanently callow about things corporate, could find no other explanation than that the new management was evil. + +But by 2003 the company had succeeded, having grown to more than 200 employees and established steady revenue and a stable presence throughout the healthcare world. Both Sean and Adrian were made rich—not wildly rich, but rich enough—by its success. In the process, however, it also morphed into exactly what Sean and Adrian had created it in order to fight: a slothlike corporate purveyor of promises and broken software. Promises Adrian had made and software Sean had built. The failure of Amicas to transform healthcare was a failure too complex and technical for most of America to understand, but it rested atop the success of Amicas in terms more readily comprehensible: a growing company making profit. Adrian and Sean had started the company not to make money, but in order to fix a broken healthcare system; yet the system stayed broken while they made money. + +In the rolling confessional, Sean and Adrian did in fact see me, however jokingly, as a kind of redeemer, a priest (albeit of an order with no flock) whose judgment of the affairs past was essential to their narration of their venture as a success, a failure, or as an unsatisfying and complicated mixture of both. I thought about this strange moment of confession, of the combination of recognition and denial, of Adrian’s new objectification of the company as an ,{[pg 33]}, investment opportunity, and of Sean’s continuing struggle to make his life and his work harmonize in order to produce good in the world. Only the promise of the next project, the next mission (and the ostensible reason for our dinner meeting) could possibly have mitigated the emotional disaster that their enterprise might otherwise be. Sean’s and Adrian’s endless, arcane fervor for the promise of new technologies did not cease, even given the quotidian calamities these technologies leave in their wake. Their faith was strong, and continuously tested. + +Adrian’s and Sean’s passion was not for money—though money was a powerful drug—it was for the Internet: for the ways in which the Internet could replace the existing infrastructure of hospitals and healthcare providers, deliver on old promises of telemedicine and teleradiology, and, above all, level a playing field systematically distorted and angled by corporate and government institutions that sought secrecy and private control, and stymied progress. In healthcare, as Adrian repeatedly explained to me, this skewed playing field was not only unfair but malicious and irresponsible. It was costing lives. It slowed the creation and deployment of technologies and solutions that could lower costs and thus provide more healthcare for more people. The Internet was not part of the problem; it was part of the solution to the problems that ailed 1990s healthcare. + +At the end of our car trip, at the Indian restaurant in Winchester, I learned about their next scheme, a project called MedCommons, which would build on the ideals of Free Software and give individuals a way to securely control and manage their own healthcare data. The rhetoric of commons and the promise of the Internet as an infrastructure dominated our conversation, but the realities of funding and the question of whether MedCommons could be pursued without starting another company remained unsettled. I tried to imagine what form a future confession might take. +={commons;MedCommons+2} + +2~ Geeks and Their Internets +={geeks+8;Internet:geeks and+8} + +Sean and Adrian are geeks. They are entrepreneurs and idealists in different ways, a sometimes paradoxical combination. They are certainly ,{[pg 34]}, obsessed with technology, but especially with the Internet, and they clearly distinguish themselves from others who are obsessed with technology of just any sort. They aren’t quite representative—they do not stand in for all geeks—but the way they think about the Internet and its possibilities might be. Among the rich story of their successes and failures, one might glimpse the outlines of a question: where do their sympathies lie? Who are they with? Who do they recognize as being like them? What might draw them together with other geeks if not a corporation, a nation, a language, or a cause? What binds these two geeks to any others? +={affinity (of geeks);entrepreneurialism+4} + +Sean worked for the Federal Reserve in the 1980s, where he was introduced to UNIX, C programming, EMACS, Usenet, Free Software, and the Free Software Foundation. But he was not a Free Software hacker; indeed, he resisted my attempts to call him a hacker at all. Nevertheless, he started a series of projects and companies with Adrian that drew on the repertoire of practices and ideas familiar from Free Software, including their MedCommons project, which was based more or less explicitly in the ideals of Free Software. Adrian has a degree in medicine and in engineering, and is a serial entrepreneur, with Amicas being his biggest success—and throughout the last ten years has attended all manner of conferences and meetings devoted to Free Software, Open Source, open standards, and so on, almost always as the lone representative from healthcare. Both graduated from the MIT (Sean in economics, Adrian in engineering), one of the more heated cauldrons of the Internet and the storied home of hackerdom, but neither were MIT hackers, nor even computer-science majors. +={Massachusetts Institute of Technology (MIT);Free Software Foundation} + +% open standards + +Their goals in creating a start-up rested on their understanding of the Internet as an infrastructure: as a standardized infrastructure with certain extremely powerful properties, not the least of which was its flexibility. Sean and Adrian talked endlessly about open systems, open standards, and the need for the Internet to remain open and standardized. Adrian spoke in general terms about how it would revolutionize healthcare; Sean spoke in specific terms about how it structured the way Amicas’s software was being designed and written. Both participated in standards committees and in the online and offline discussions that are tantamount to policymaking in the Internet world. The company they created was a "virtual" company, that is, built on tools that depended on the Internet and allowed employees to manage and work from a variety of locations, though not without frustration, of course: Sean waited years for broadband access in his home, and the hospitals they served ,{[pg 35]}, hemmed themselves in with virtual private networks, intranets, and security firewalls that betrayed the promises of openness that Sean and Adrian heralded. +={infrastructure} + +The Internet was not the object of their work and lives, but it did represent in detail a kind of moral or social order embodied in a technical system and available to everyone to use as a platform whereby they might compete to improve and innovate in any realm. To be sure, although not all Internet entrepreneurs of the 1990s saw the Internet in the same way, Sean and Adrian were hardly alone in their vision. Something about the particular way in which they understood the Internet as representing a moral order—simultaneously a network, a market, a public, and a technology—was shared by a large group of people, those who I now refer to simply as geeks. + +The term geek is meant to be inclusive and to index the problematic of a recursive public. Other terms may be equally useful, but perhaps semantically overdetermined, most notably hacker, which regardless of its definitional range, tends to connote someone subversive and/or criminal and to exclude geek-sympathetic entrepreneurs and lawyers and activists.~{ For the canonical story, see Levy, Hackers. Hack referred to (and still does) a clever use of technology, usually unintended by the maker, to achieve some task in an elegant manner. The term has been successfully redefined by the mass media to refer to computer users who break into and commit criminal acts on corporate or government or personal computers connected to a network. Many self-identified hackers insist that the criminal element be referred to as crackers (see, in particular, the entries on "Hackers," "Geeks" and "Crackers" in The Jargon File, http://www.catb.org/~esr/jargon/, also published as Raymond, The New Hackers’ Dictionary). On the subject of definitions and the cultural and ethical characteristics of hackers, see Coleman, "The Social Construction of Freedom," chap. 2. }~ Geek is meant to signal, like the public in "recursive public," that geeks stand outside power, at least in some aspects, and that they are not capitalists or technocrats, even if they start businesses or work in government or industry.~{ One example of the usage of geek is in Star, The Cultures of Computing. Various denunciations (e.g., Barbrook and Cameron, "The California Ideology"; Borsook, Technolibertarianism) tend to focus on journalistic accounts of an ideology that has little to do with what hackers, geeks, and entrepreneurs actually make. A more relevant categorical distinction than that between hackers and geeks is that between geeks and technocrats; in the case of technocrats, the "anthropology of technocracy" is proposed as the study of the limits of technical rationality, in particular the forms through which "planning" creates "gaps in the form that serve as ‘targets of intervention’" (Riles, "Real Time," 393). Riles’s "technocrats" are certainly not the "geeks" I portray here (or at least, if they are, it is only in their frustrating day jobs). Geeks do have libertarian, specifically Hayekian or Feyerabendian leanings, but are more likely to see technical failures not as failures of planning, but as bugs, inefficiencies, or occasionally as the products of human hubris or stupidity that is born of a faith in planning. }~ Geek is meant to signal a mode of thinking and working, not an identity; it is a mode or quality that allows people to find each other, for reasons other than the fact that they share an office, a degree, a language, or a nation. +={geeks:hackers vs.+3;hackers+3} + +Until the mid-1990s, hacker, geek, and computer nerd designated a very specific type: programmers and lurkers on relatively underground networks, usually college students, computer scientists, and "amateurs" or "hobbyists." A classic mock self-diagnostic called the Geek Code, by Robert Hayden, accurately and humorously detailed the various ways in which one could be a geek in 1996—UNIX/ Linux skills, love/hate of Star Trek, particular eating and clothing habits—but as Hayden himself points out, the geeks of the early 1990s exist no longer. The elite subcultural, relatively homogenous group it once was has been overrun: "The Internet of 1996 was still a wild untamed virgin paradise of geeks and eggheads unpopulated by script kiddies, and the denizens of AOL. When things changed, I seriously lost my way. I mean, all the ‘geek’ that was the Internet ,{[pg 36]}, was gone and replaced by Xfiles buzzwords and politicians passing laws about a technology they refused to comprehend."~{ See The Geek Code, http://www.geekcode.com/. }~ +={Hayden, Robert+2} + +For the purists like Hayden, geeks were there first, and they understood something, lived in a way, that simply cannot be comprehended by "script kiddies" (i.e., teenagers who perform the hacking equivalent of spray painting or cow tipping), crackers, or AOL users, all of whom are despised by Hayden-style geeks as unskilled users who parade around the Internet as if they own it. While certainly elitist, Hayden captures the distinction between those who are legitimately allowed to call themselves geeks (or hackers) and those who aren’t, a distinction that is often formulated recursively, of course: "You are a hacker when another hacker calls you a hacker." + +However, since the explosive growth of the Internet, geek has become more common a designation, and my use of the term thus suggests a role that is larger than programmer/hacker, but not as large as "all Internet users." Despite Hayden’s frustration, geeks are still bound together as an elite and can be easily distinguished from "AOL users." Some of the people I discuss would not call themselves geeks, and some would. Not all are engineers or programmers: I have met businessmen, lawyers, activists, bloggers, gastroenterologists, anthropologists, lesbians, schizophrenics, scientists, poets, people suffering from malaria, sea captains, drug dealers, and people who keep lemurs, many of whom refer to themselves as geeks, some of the time.~{ Geeks are also identified often by the playfulness and agility with which they manipulate these labels and characterizations. See Michael M. J. Fischer, "Worlding Cyberspace" for an example. }~ There are also lawyers, politicians, sociologists, and economists who may not refer to themselves as geeks, but who care about the Internet just as other geeks do. By contrast "users" of the Internet, even those who use it eighteen out of twenty-four hours in a day to ship goods and play games, are not necessarily geeks by this characterization. + +2~ Operating Systems and Social Systems + +Berlin, November 1999. I am in a very hip club in Mitte called WMF. It’s about eight o’clock—five hours too early for me to be a hipster, but the context is extremely cool. WMF is in a hard-to-find, abandoned building in the former East; it is partially converted, filled with a mixture of new and old furnishings, video projectors, speakers, makeshift bars, and dance-floor lighting. A crowd of around fifty people lingers amid smoke and Beck’s beer bottles, ,{[pg 37]}, sitting on stools and chairs and sofas and the floor. We are listening to an academic read a paper about Claude Shannon, the MIT engineer credited with the creation of information theory. The author is smoking and reading in German while the audience politely listens. He speaks for about seventy minutes. There are questions and some perfunctory discussion. As the crowd breaks up, I find myself, in halting German that quickly converts to English, having a series of animated conversations about the GNU General Public License, the Debian Linux Distribution, open standards in net radio, and a variety of things for which Claude Shannon is the perfect ghostly technopaterfamilias, even if his seventy-minute invocation has clashed heavily with the surroundings. +={Berlin+2;Shannon, Claude} + +Despite my lame German, I still manage to jump deeply into issues that seem extremely familiar: Internet standards and open systems and licensing issues and namespaces and patent law and so on. These are not businesspeople, this is not a start-up company. As I would eventually learn, there was even a certain disdain for die Krawattenfaktor, the suit-and-tie factor, at these occasional, hybrid events hosted by Mikro e.V., a nonprofit collective of journalists, academics, activists, artists, and others interested in new media, the Internet, and related issues. Mikro’s constituency included people from Germany, Holland, Austria, and points eastward. They took some pride in describing Berlin as "the farthest East the West gets" and arranged for a group photo in which, facing West, they stood behind the statue of Marx and Lenin, who face East and look eternally at the iconic East German radio tower (Funkturm) in Alexanderplatz. Mikro’s members are resolutely activist and see the issues around the Internet-as-infrastructure not in terms of its potential for business opportunities, but in urgently political and unrepentantly aesthetic terms—terms that are nonetheless similar to those of Sean and Adrian, from whom I learned the language that allows me to mingle with the Mikro crowd at WMF. I am now a geek. +={Mikro e.V.+1;Open Systems;standards:Internet} + +Before long, I am talking with Volker Grassmuck, founding member of Mikro and organizer of the successful "Wizards of OS" conference, held earlier in the year, which had the very intriguing subtitle "Operating Systems and Social Systems." Grassmuck is inviting me to participate in a planning session for the next WOS, held at the Chaos Computer Congress, a hacker gathering that occurs each year in December in Berlin. In the following months I will meet a huge number of people who seem, uncharacteristically for artists ,{[pg 38]}, and activists, strangely obsessed with configuring their Linux distributions or hacking the http protocol or attending German Parliament hearings on copyright reform. The political lives of these folks have indeed mixed up operating systems and social systems in ways that are more than metaphorical. +={Grassmuck, Volker} + +2~ The Idea of Order at the Keyboard + +If intuition can lead one from geek to geek, from start-up to nightclub, and across countries, languages, and professional orientations, it can only be due to a shared set of ideas of how things fit together in the world. These ideas might be "cultural" in the traditional sense of finding expression among a community of people who share backgrounds, homes, nations, languages, idioms, ethnos, norms, or other designators of belonging and co-presence. But because the Internet—like colonialism, satellite broadcasting, and air travel, among other things—crosses all these lines with abandon that the shared idea of order is better understood as part of a public, or public sphere, a vast republic of letters and media and ideas circulating in and through our thoughts and papers and letters and conversations, at a planetary scope and scale. +={culture;public+15;public sphere:theories of+15;social imaginary+15;Internet: idea of order and+1} + +% index could have been more precise, matches book + +"Public sphere" is an odd kind of thing, however. It is at once a concept—intended to make sense of a space that is not the here and now, but one made up of writings, ideas, and discussions—and a set of ideas that people have about themselves and their own participation in such a space. I must be able to imagine myself speaking and being spoken to in such a space and to imagine a great number of other people also doing so according to unwritten rules we share. I don’t need a complete theory, and I don’t need to call it a public sphere, but I must somehow share an idea of order with all those other people who also imagine themselves participating in and subjecting themselves to that order. In fact, if the public sphere exists as more than just a theory, then it has no other basis than just such a shared imagination of order, an imagination which provides a guide against which to make judgments and a map for changing or achieving that order. Without such a shared imagination, a public sphere is otherwise nothing more than a cacophony of voices and information, nothing more than a stream of data, structured and formatted by and for machines, whether paper or electronic. ,{[pg 39]}, + +Charles Taylor, building on the work of Jürgen Habermas and Michael Warner, suggests that the public sphere (both idea and thing) that emerged in the eighteenth century was created through practices of communication and association that reflected a moral order in which the public stands outside power and guides or checks its operation through shared discourse and enlightened discussion. Contrary to the experience of bodies coming together into a common space (Taylor calls them "topical spaces," such as conversation, ritual, assembly), the crucial component is that the public sphere "transcends such topical spaces. We might say that it knits a plurality of spaces into one larger space of non-assembly. The same public discussion is deemed to pass through our debate today, and someone else’s earnest conversation tomorrow, and the newspaper interview Thursday and so on. . . . The public sphere that emerges in the eighteenth century is a meta-topical common space."~{ Taylor, Modern Social Imaginaries, 86. }~ +={Habermas, Jürgen;Taylor, Charles+3;Warner, Michael} + +Because of this, Taylor refers to his version of a public as a "social imaginary," a way of capturing a phenomena that wavers between having concrete existence "out there" and imagined rational existence "in here." There are a handful of other such imagined spaces—the economy, the self-governing people, civil society—and in Taylor’s philosophical history they are related to each through the "ideas of moral and social order" that have developed in the West and around the world.~{ On the subject of imagined communities and the role of information technologies in imagined networks, see Green, Harvey, and Knox, "Scales of Place and Networks"; and Flichy, The Internet Imaginaire. }~ +={social imaginary:ideology vs.+3} + +Taylor’s social imaginary is intended to do something specific: to resist the "spectre of idealism," the distinction between ideas and practices, between "ideologies" and the so-called material world as "rival causal agents." Taylor suggests, "Because human practices are the kind of thing that makes sense, certain ideas are internal to them; one cannot distinguish the two in order to ask the question Which causes which?"~{ Taylor, Modern Social Imaginaries, 32. }~ Even if materialist explanations of cause are satisfying, as they often are, Taylor suggests that they are so "at the cost of being implausible as a universal principle," and he offers instead an analysis of the rise of the modern imaginaries of moral order.~{ Ibid., 33-48. Taylor’s history of the transition from feudal nobility to civil society to the rise of republican democracies (however incomplete) is comparable to Foucault’s history of the birth of biopolitics, in La naissance de la biopolitique, as an attempt to historicize governance with respect to its theories and systems, as well as within the material forms it takes. }~ +={ideology+6} + +The concept of recursive public, like that of Taylor’s public sphere, is understood here as a kind of social imaginary. The primary reason is to bypass the dichotomy between ideas and material practice. Because the creation of software, networks, and legal documents are precisely the kinds of activities that trouble this distinction—they are at once ideas and things that have material effects in the ,{[pg 40]}, world, both expressive and performative—it is extremely difficult to identify the properly material materiality (source code? computer chips? semiconductor manufacturing plants?). This is the first of the reasons why a recursive public is to be distinguished from the classic formulae of the public sphere, that is, that it requires a kind of imagination that includes the writing and publishing and speaking and arguing we are familiar with, as well as the making of new kinds of software infrastructures for the circulation, archiving, movement, and modifiability of our enunciations. + +The concept of a social imaginary also avoids the conundrums created by the concept of "ideology" and its distinction from material practice. Ideology in its technical usage has been slowly and surely overwhelmed by its pejorative meaning: "The ideological is never one’s own position; it is always the stance of someone else, always their ideology."~{ Ricoeur, Lectures on Ideology and Utopia, 2. }~ If one were to attempt an explanation of any particular ideology in nonpejorative terms, there is seemingly nothing that might rescue the explanation from itself becoming ideological. + +The problem is an old one. Clifford Geertz noted it in "Ideology as a Cultural System," as did Karl Mannheim before him in Ideology and Utopia: it is the difficulty of employing a non-evaluative concept of ideology.~{ Geertz, "Ideology as a Cultural System"; Mannheim, Ideology and Utopia. Both, of course, also signal the origin of the scientific use of the term proximately with Karl Marx’s "German Ideology" and more distantly in the Enlightenment writings of Destutt de Tracy. }~ Of all the versions of struggle over the concept of a scientific or objective sociology, it is the claim of exploring ideology objectively that most rankles. As Geertz put it, "Men do not care to have beliefs to which they attach great moral significance examined dispassionately, no matter for how pure a purpose; and if they are themselves highly ideologized, they may find it simply impossible to believe that a disinterested approach to critical matters of social and political conviction can be other than a scholastic sham."~{ Geertz, "Ideology as a Cultural System," 195. }~ +={Geertz, Clifford+3;Mannheim, Karl+1} + +Mannheim offered one response: a version of epistemological relativism in which the analysis of ideology included the ideological position of the analyst. Geertz offered another: a science of "symbolic action" based in Kenneth Burke’s work and drawing on a host of philosophers and literary critics.~{ Ibid., 208-13. }~ Neither the concept of ideology, nor the methods of cultural anthropology have been the same since. "Ideology" has become one of the most widely deployed (some might say, most diffuse) tools of critique, where critique is understood as the analysis of cultural patterns given in language and symbolic structures, for the purposes of bringing ,{[pg 41]}, to light systems of hegemony, domination, authority, resistance, and/or misrecognition.~{ The depth and the extent of this issue is obviously huge. Ricoeur’s Lectures on Ideology and Utopia is an excellent analysis to the problem of ideology prior to 1975. Terry Eagleton’s books The Ideology of the Aesthetic and Ideology: An Introduction are Marxist explorations that include discussions of hegemony and resistance in the context of artistic and literary theory in the 1980s. Slavoj Žižek creates a Lacanian-inspired algebraic system of analysis that combines Marxism and psychoanalysis in novel ways (see Žižek, Mapping Ideology). There is even an attempt to replace the concept of ideology with a metaphor of "software" and "memes" (see Balkin, Cultural Software). The core of the issue of ideology as a practice (and the vicissitudes of materialism that trouble it) are also at the heart of works by Pierre Bourdieu and his followers (on the relationship of ideology and hegemony, see Laclau and Mouffe, Hegemony and Socialist Strategy). In anthropology, see Comaroff and Comaroff, Ethnography and the Historical Imagination. }~ However, the practices of critique are just as (if not more) likely to be turned on critical scholars themselves, to show how the processes of analysis, hidden assumptions, latent functions of the university, or other unrecognized features the material, non-ideological real world cause the analyst to fall into an ideological trap. + +The concept of ideology takes a turn toward "social imaginary" in Paul Ricoeur’s Lectures on Ideology and Utopia, where he proposes ideological and utopian thought as two components of "social and cultural imagination." Ricoeur’s overview divides approaches to the concept of ideology into three basic types—the distorting, the integrating, and the legitimating—according to how actors deal with reality through (symbolic) imagination. Does the imagination distort reality, integrate it, or legitimate it vis-à-vis the state? Ricoeur defends the second, Geertzian flavor: ideologies integrate the symbolic structure of the world into a meaningful whole, and "only because the structure of social life is already symbolic can it be distorted."~{ Ricoeur, Lectures on Ideology and Utopia, 10. }~ +={social imaginary:ideology vs.+6;Ricoeur, Paul+1} + +For Ricoeur, the very substance of life begins in the interpretation of reality, and therefore ideologies (as well as utopias—and perhaps conspiracies) could well be treated as systems that integrate those interpretations into the meaningful wholes of political life. Ricoeur’s analysis of the integration of reality though social imagination, however, does not explicitly address how imagination functions: what exactly is the nature of this symbolic action or interpretation, or imagination? Can one know it from the outside, and does it resist the distinction between ideology and material practice? Both Ricoeur and Geertz harbor hope that ideology can be made scientific, that the integration of reality through symbolic action requires only the development of concepts adequate to the job. + +Re-enter Charles Taylor. In Modern Social Imaginaries the concept of social imaginary is distinctive in that it attempts to capture the specific integrative imaginations of modern moral and social order. Taylor stresses that they are imaginations—not necessarily theories—of modern moral and social order: "By social imaginary, I mean something much broader and deeper than the intellectual schemes people may entertain when they think about social reality in a disengaged mode. I am thinking, rather, of the ways in ,{[pg 42]}, which people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations."~{ Taylor, Modern Social Imaginaries, 23. }~ Social imaginaries develop historically and result in both new institutions and new subjectivities; the concepts of public, market, and civil society (among others) are located in the imaginative faculties of actors who recognize the shared, common existence of these ideas, even if they differ on the details, and the practices of those actors reflect a commitment to working out these shared concepts. +={Taylor, Charles+3} + +Social imaginaries are an extension of "background" in the philosophical sense: "a wider grasp of our whole predicament."~{ Ibid., 25. }~ The example Taylor uses is that of marching in a demonstration: the action is in our imaginative repertory and has a meaning that cannot be reduced to the local context: "We know how to assemble, pick up banners and march. . . . [W]e understand the ritual. . . . [T]he immediate sense of what we are doing, getting the message to our government and our fellow citizens that the cuts must stop, say, makes sense in a wider context, in which we see ourselves standing in a continuing relation with others, in which it is appropriate to address them in this manner."~{ Ibid., 26-27. }~ But we also stand "internationally" and "in history" against a background of stories, images, legends, symbols, and theories. "The background that makes sense of any given act is wide and deep. It doesn’t include everything in our world, but the relevant sense-giving features can’t be circumscribed. . . . [It] draws on our whole world, that is, our sense of our whole predicament in time and space, among others and in history."~{ Ibid., 28. }~ + +The social imaginary is not simply the norms that structure our actions; it is also a sense of what makes norms achievable or "realizable," as Taylor says. This is the idea of a "moral order," one that we expect to exist, and if it doesn’t, one that provides a plan for achieving it. For Taylor, there is such a thing as a "modern idea of order," which includes, among other things, ideas of what it means to be an individual, ideas of how individual passions and desires are related to collective association, and, most important, ideas about living in time together (he stresses a radically secular conception of time—secular in a sense that means more than simply "outside religion"). He by no means insists that this is the only such definition of modernity (the door is wide open to understanding alternative modernities), but that the modern idea of moral order is ,{[pg 43]}, one that dominates and structures a very wide array of institutions and individuals around the world. + +The "modern idea of moral order" is a good place to return to the question of geeks and their recursive publics. Are the ideas of order shared by geeks different from those Taylor outlines? Do geeks like Sean and Adrian, or activists in Berlin, possess a distinctive social imaginary? Or do they (despite their planetary dispersal) participate in this common modern idea of moral order? Do the stories and narratives, the tools and technologies, the theories and imaginations they follow and build on have something distinctive about them? Sean’s and Adrian’s commitment to transforming healthcare seems to be, for instance, motivated by a notion of moral order in which the means of allocation of healthcare might become more just, but it is also shot through with technical ideas about the role of standards, the Internet, and the problems with current technical solutions; so while they may seem to be simply advocating for better healthcare, they do so through a technical language and practice that are probably quite alien to policymakers, upper management, and healthcare advocacy groups that might otherwise be in complete sympathy. +={Berlin;Doyle, Sean;Gropper, Adrian;moral and technical order+1} + +The affinity of geeks for each other is processed through and by ideas of order that are both moral and technical—ideas of order that do indeed mix up "operating systems and social systems." These systems include the technical means (the infrastructure) through which geeks meet, assemble, collaborate, and plan, as well as how they talk and think about those activities. The infrastructure—the Internet—allows for a remarkably wide and diverse array of people to encounter and engage with each other. That is to say, the idea of order shared by geeks is shared because they are geeks, because they "get it," because the Internet’s structure and software have taken a particular form through which geeks come to understand the moral order that gives the fabric of their political lives warp and weft. +={affinity (of geeks)} + +2~ Internet Silk Road +={Bangalore+7;Internet:India and+7} + +Bangalore, March 2000. I am at another bar, this time on one of Bangalore’s trendiest streets. The bar is called Purple Haze, and I have been taken there, the day after my arrival, by Udhay Shankar ,{[pg 44]}, N. Inside it is dark and smoky, purple, filled with men between eighteen and thirty, and decorated with posters of Jimi Hendrix, Black Sabbath, Jim Morrison (Udhay: "I hate that band"), Led Zeppelin, and a somewhat out of place Frank Zappa (Udhay: "One of my political and musical heroes"). All of the men, it appears, are singing along with the music, which is almost without exception heavy metal. +={Shakar, Udhay+6;music+1} + +I engage in some stilted conversation with Udhay and his cousin Kirti about the difference between Karnatic music and rock-androll, which seems to boil down to the following: Karnatic music decreases metabolism and heart rate, leading to a relaxed state of mind; rock music does the opposite. Given my aim of focusing on the Internet and questions of openness, I have already decided not to pay attention to this talk of music. In retrospect, I understand this to have been a grave methodological error: I underestimated the extent to which the subject of music has been one of the primary routes into precisely the questions about the "reorientation of knowledge and power" I was interested in. Over the course of the evening and the following days, Udhay introduced me, as promised, to a range of people he either knew or worked with in some capacity. Almost all of the people I met appeared to sincerely love heavy-metal music. + +I met Udhay Shankar N. in 1999 through a newsletter, distributed via e-mail, called Tasty Bits from the Technology Front. It was one of a handful of sources I watched closely while in Berlin, looking for such connections to geek culture. The newsletter described a start-up company in Bangalore, one that was devoted to creating a gateway between the Internet and mobile phones, and which was, according to the newsletter, an entirely Indian operation, though presumably with U.S. venture funds. I wanted to find a company to compare to Amicas: a start-up, run by geeks, with a similar approach to the Internet, but halfway around the world and in a "culture" that might be presumed to occupy a very different kind of moral order. Udhay invited me to visit and promised to introduce me to everyone he knew. He described himself as a "random networker"; he was not really a programmer or a designer or a Free Software geek, despite his extensive knowledge of software, devices, operating systems, and so on, including Free and Open Source Software. Neither was he a businessman, but rather described himself as the guy who "translates between the suits and the techs." ,{[pg 45]}, +={Berlin; Amicas (corporation)+2;culture} + +Udhay "collects interesting people," and it was primarily through his zest for collecting that I met all the people I did. I met cosmopolitan activists and elite lawyers and venture capitalists and engineers and cousins and brothers and sisters of engineers. I met advertising executives and airline flight attendants and consultants in Bombay. I met journalists and gastroenterologists, computer-science professors and musicians, and one mother of a robot scientist in Bangalore. Among them were Muslims, Hindus, Jains, Jews, Parsis, and Christians, but most of them considered themselves more secular and scientific than religious. Many were self-educated, or like their U.S. counterparts, had dropped out of university at some point, but continued to teach themselves about computers and networks. Some were graduates or employees of the Indian Institute of Science in Bangalore, an institution that was among the most important for Indian geeks (as Stanford University is to Silicon Valley, many would say). Among the geeks to whom Udhay introduced me, there were only two commonalities: the geeks were, for the most part, male, and they all loved heavy-metal music.~{ The question of gender plagues the topic of computer culture. The gendering of hackers and geeks and the more general exclusion of women in computing have been widely observed by academics. I can do no more here than direct readers to the increasingly large and sophisticated literature on the topic. See especially Light, "When Computers Were Women"; Turkle, The Second Self and Life on the Screen. With respect to Free Software, see Nafus, Krieger, Leach, "Patches Don’t Have Gender." More generally, see Kirkup et al., The Gendered Cyborg; Downey, The Machine in Me; Faulkner, "Dualisms, Hierarchies and Gender in Engineering"; Grint and Gill, The Gender-Technology Relation; Helmreich, Silicon Second Nature; Herring, "Gender and Democracy in Computer-Mediated Communication"; Kendall, "‘Oh No! I’m a NERD!’"; Margolis and Fisher, Unlocking the Clubhouse; Green and Adam, Virtual Gender; P. Hopkins, Sex/Machine; Wajcman, Feminism Confronts Technology and "Reflections on Gender and Technology Studies"; and Fiona Wilson, "Can’t Compute, Won’t Compute." Also see the novels and stories of Ellen Ullman, including Close to the Machine and The Bug: A Novel. }~ +={Gender;Religion+1} + +While I was in Bangalore, I was invited to join a mailing list run by Udhay called Silk-list, an irregular, unmoderated list devoted to "intelligent conversation." The list has no particular focus: long, meandering conversations about Indian politics, religion, economics, and history erupt regularly; topics range from food to science fiction to movie reviews to discussions on Kashmir, Harry Potter, the singularity, or nanotechnology. Udhay started Silk-list in 1997 with Bharath Chari and Ram Sundaram, and the recipients have included hundreds of people around the world, some very well-known ones, programmers, lawyers, a Bombay advertising executive, science-fiction authors, entrepreneurs, one member of the start-up Amicas, at least two transhumanists, one (diagnosed) schizophrenic, and myself. Active participants usually numbered about ten to fifteen, while many more lurked in the background. +={Chari, Bharath;Silk-list (mailing list)+5;Sundaram, Ram} + +% silk index marking not identical to book page numbering + +Silk-list is an excellent index of the relationship between the network of people in Bangalore and their connection to a worldwide community on the Internet—a fascinating story of the power of heterogeneously connected networks and media. Udhay explained that in the early 1990s he first participated in and then taught himself to configure and run a modem-based networking system known as a Bulletin Board Service (BBS) in Bangalore. In 1994 he heard about a book by Howard Rheingold called The Virtual ,{[pg 46]}, Community, which was his first introduction to the Internet. A couple of years later when he finally had access to the Internet, he immediately e-mailed John Perry Barlow, whose work he knew from Wired magazine, to ask for Rheingold’s e-mail address in order to connect with him. Rheingold and Barlow exist, in some ways, at the center of a certain kind of geek world: Rheingold’s books are widely read popular accounts of the social and community aspects of new technologies that have often had considerable impact internationally; Barlow helped found the Electronic Frontier Foundation and is responsible for popularizing the phrase "information wants to be free."~{ Originally coined by Steward Brand, the phrase was widely cited after it appeared in Barlow’s 1994 article "The Economy of Ideas." }~ Both men had a profound influence on Udhay and ultimately provided him with the ideas central to running an online community. A series of other connections of similar sorts—some personal, some precipitated out of other media and other channels, some entirely random—are what make up the membership of Silk-list.~{ On the genesis of "virtual communities" and the role of Steward Brand, see Turner, "Where the Counterculture Met the New Economy." }~ +={Rheingold, Howard;Barlow, John Perry;Wired (magazine)} + +Like many similar communities of "digerati" during and after the dot.com boom, Silk-list constituted itself more or less organically around people who "got it," that is, people who claimed to understand the Internet, its transformative potential, and who had the technical skills to participate in its expansion. Silk-list was not the only list of its kind. Others such as the Tasty Bits newsletter, the FoRK (Friends of Rohit Khare) mailing list (both based in Boston), and the Nettime and Syndicate mailing lists (both based in the Netherlands) ostensibly had different reasons for existence, but many had the same subscribers and overlapping communities of geeks. Subscription was open to anyone, and occasionally someone would stumble on the list and join in, but most were either invited by members or friends of friends, or they were connected by virtue of cross-posting from any number of other mailing lists to which members were subscribed. + +2~ /pub +={Internet:public spheres and+25;Silk-list (mailing list):as a public+12} + +Silk-list is public in many senses of the word. Practically speaking, one need not be invited to join, and the material that passes through the list is publicly archived and can be found easily on the Internet. Udhay does his best to encourage everyone to speak and to participate, and to discourage forms of discourse that he thinks ,{[pg 47]}, might silence participants into lurking. Silk-list is not a government, corporate, or nongovernmental list, but is constituted only through the activity of geeks finding each other and speaking to each other on this list (which can happen in all manner of ways: through work, through school, through conferences, through fame, through random association, etc.). Recall Charles Taylor’s distinction between a topical and a metatopical space. Silk-list is not a conventionally topical space: at no point do all of its members meet face-to-face (though there are regular meet-ups in cities around the world), and they are not all online at the same time (though the volume and tempo of messages often reflect who is online "speaking" to each other at any given moment). It is a topical space, however, if one considers it from the perspective of the machine: the list of names on the mailing list are all assembled together in a database, or in a file, on the server that manages the mailing list. It is a stretch to call this an "assembly," however, because it assembles only the avatars of the mailing-list readers, many of whom probably ignore or delete most of the messages. +={Taylor, Charles+2} + +Silk-list is certainly, on the other hand, a "metatopical" public. It "knits together" a variety of topical spaces: my discussion with friends in Houston, and other members’ discussions with people around the world, as well as the sources of multiple discussions like newspaper and magazine articles, films, events, and so on that are reported and discussed online. But Silk-list is not "The" public—it is far from being the only forum in which the public sphere is knitted together. Many, many such lists exist. + +In Publics and Counterpublics Michael Warner offers a further distinction. "The" public is a social imaginary, one operative in the terms laid out by Taylor: as a kind of vision of order evidenced through stories, images, narratives, and so on that constitute the imagination of what it means to be part of the public, as well as plans necessary for creating the public, if necessary. Warner distinguishes, however, between a concrete, embodied audience, like that at a play, a demonstration, or a riot (a topical public in Taylor’s terms), and an audience brought into being by discourse and its circulation, an audience that is not metatopical so much as it is a public that is concrete in a different way; it is concrete not in the face-to-face temporality of the speech act, but in the sense of calling a public into being through an address that has a different temporality. It is a public that is concrete in a media-specific ,{[pg 48]}, manner: it depends on the structures of creation, circulation, use, performance, and reuse of particular kinds of discourse, particular objects or instances of discourse. +={public:self-grounding of+4;social imaginary+4;Warner, Michael+4} + +% check public self grounding of marker + +Warner’s distinction has a number of implications. The first, as Warner is careful to note, is that the existence of particular media is not sufficient for a public to come into existence. Just because a book is printed does not mean that a public exists; it requires also that the public take corresponding action, that is, that they read it. To be part of a particular public is to choose to pay attention to those who choose to address those who choose to pay attention . . . and so on. Or as Warner puts it, "The circularity is essential to the phenomenon. A public might be real and efficacious, but its reality lies in just this reflexivity by which an addressable object is conjured into being in order to enable the very discourse that gives it existence."~{ Warner, "Publics and Counterpublics," 51. }~ + +This "autotelic" feature of a public is crucial if one is to understand the function of a public as standing outside of power. It simply cannot be organized by the state, by a corporation, or by any other social totality if it is to have the legitimacy of an independently functioning public. As Warner puts it, "A public organizes itself independently of state institutions, law, formal frameworks of citizenship, or preexisting institutions such as the church. If it were not possible to think of the public as organized independently of the state or other frameworks, the public could not be sovereign with respect to the state. . . . Speaking, writing, and thinking involve us—actively and immediately—in a public, and thus in the being of the sovereign."~{ Ibid., 51-52. See also Warner, Publics and Counterpublics, 69. }~ +={public:autotelic and independent+1} + +% ={Public:autotelic and independent+6} ?? + +Warner’s description makes no claim that any public or even The Public actually takes this form in the present: it is a description of a social imaginary or a "faith" that allows individuals to make sense of their actions according to a modern idea of social order. As Warner (and Habermas before him) suggests, the existence of such autonomous publics—and certainly the idea of "public opinion"— does not always conform to this idea of order. Often such publics turn out to have been controlled all along by states, corporations, capitalism, and other forms of social totality that determine the nature of discourse in insidious ways. A public whose participants have no faith that it is autotelic and autonomous is little more than a charade meant to assuage opposition to authority, to transform ,{[pg 49]}, political power and equality into the negotiation between unequal parties. + +Is Silk-list a public? More important, is it a sovereign one? Warner’s distinction between different media-specific forms of assembly is crucial to answering this question. If one wants to know whether a mailing list on the Internet is more or less likely to be a sovereign public than a book-reading public or the nightly-news-hearing one, then one needs to approach it from the specificity of the form of discourse. This specificity not only includes whether the form is text or video and audio, or whether the text is ASCII or Unicode, or the video PAL or NTSC, but it also includes the means of creation, circulation, and reuse of that discourse as well. + +The on-demand, Internet-mediated book, by contrast, will have a much different temporality of circulation: it might languish in obscurity due to lack of marketing or reputable authority, or it might get mentioned somewhere like the New York Times and suddenly become a sensation. For such a book, copyright law (in the form of a copyleft license) might allow a much wider range of uses and reuses, but it will restrict certain forms of commercialization of the text. The two publics might therefore end up looking quite different, overlapping, to be sure, but varying in terms of their control ,{[pg 50]}, and the terms of admittance. What is at stake is the power of one or the other such public to appear as an independent and sovereign entity—free from suspect constraints and control—whose function is to argue with other constituted forms of power. +={copyleft licenses (component of Free Software);publication+1} + +The conventionally published book may well satisfy all the criteria of being a public, at least in the colloquial sense of making a set of ideas and a discourse widely available and expecting to influence, or receive a response from, constituted forms of sovereign power. However, it is only the latter "on-demand" scheme for publishing that satisfies the criteria of being a recursive public. The differences in this example offer a crude indication of why the Internet is so crucially important to geeks, so important that it draws them together, in its defense, as an infrastructure that enables the creation of publics that are thought to be autonomous, independent, and autotelic. Geeks share an idea of moral and technical order when it comes to the Internet; not only this, but they share a commitment to maintaining that order because it is what allows them to associate as a recursive public in the first place. They discover, or rediscover, through their association, the power and possibility of occupying the position of independent public—one not controlled by states, corporations, or other organizations, but open (they claim) through and through—and develop a desire to defend it from encroachment, destruction, or refeudalization (to use Habermas’s term for the fragmentation of the public sphere). +={Habermas, Jürgen;moral and technical order+2;public:autotelic and independent+2} + +The recursive public is thus not only the book and the discourse around the book. It is not even "content" expanded to include all kinds of media. It is also the technical structure of the Internet as well: its software, its protocols and standards, its applications and software, its legal status and the licenses and regulations that govern it. This captures both of the reasons why recursive publics are distinctive: (1) they include not only the discourses of a public, but the ability to make, maintain, and manipulate the infrastructures of those discourses as well; and (2) they are "layered" and include both discourses and infrastructures, to a specific technical extent (i.e., not all the way down). The meaning of which layers are important develops more or less immediately from direct engagement with the medium. In the following example, for instance, Napster represents the potential of the Internet in miniature—as an application—but it also connects immediately to concerns about the core protocols that govern the Internet and the process of standardization ,{[pg 51]}, that governs the development of these protocols: hence recursion through the layers of an infrastructure. +={Napster;recursive public:layers of;Standards:Internet} + +These two aspects of the recursive public also relate to a concern about the fragmentation or refeudalization of the public sphere: there is only one Internet. Its singularity is not technically determined or by any means necessary, but it is what makes the Internet so valuable to geeks. It is a contest, the goal of which is to maintain the Internet as an infrastructure for autonomous and autotelic publics to emerge as part of The Public, understood as part of an imaginary of moral and technical order: operating systems and social systems. +={Internet:singularity of} + +2~ From Napster to the Internet +={Napster+21} + +On 27 July 2000 Eugen Leitl cross-posted to Silk-list a message with the subject line "Prelude to the Singularity." The message’s original author, Jeff Bone (not at the time a member of Silk-list), had posted the "op-ed piece" initially to the FoRK mailing list as a response to the Recording Industry Association of America’s (RIAA) actions against Napster. The RIAA had just succeeded in getting U.S. district judge Marilyn Hall Patel, Ninth Circuit Court of Appeals, to issue an injunction to Napster to stop downloads of copyrighted music. Bone’s op-ed said, +={Bone, Jeff+26;Internet:singularity of;Leitl, Eugene;Recording Industry Association of America (RIAA)+1} + +_1 Popular folklore has it that the Internet was designed with decentralized routing protocols in order to withstand a nuclear attack. That is, the Internet "senses damage" and "routes around it." It has been said that, on the ’Net, censorship is perceived as damage and is subsequently routed around. The RIAA, in a sense, has cast itself in a censor’s role. Consequently, the music industry will be perceived as damage—and it will be routed around. There is no doubt that this will happen, and that technology will evolve more quickly than businesses and social institutions can; there are numerous highly-visible projects already underway that attempt to create technology that is invulnerable to legal challenges of various kinds. Julian Morrison, the originator of a project (called Fling) to build a fully anonymous/untraceable suite of network protocols, expresses this particularly eloquently.~{ The rest of this message can be found in the Silk-list archives at http://groups.yahoo.com/group/silk-list/message/2869 (accessed 18 August 2006). The reference to "Fling" is to a project now available at http://fling.sourceforge.net/ (accessed 18 August 2006). The full archives of Silk-list can be found at http://groups.yahoo.com/group/silk-list/ and the full archives of the FoRK list can be found at http://www.xent.com/mailman/listinfo/fork/. }~ +={censorship} + +Bone’s message is replete with details that illustrate the meaning and value of the Internet to geeks, and that help clarify the concept ,{[pg 52]}, of a recursive public. While it is only one message, it nonetheless condenses and expresses a variety of stories, images, folklore, and technical details that I elaborate herein. +={recursive public:layers of+2|examples of+28} + +The Napster shutdown in 2000 soured music fans and geeks alike, and it didn’t really help the record labels who perpetrated it either. For many geeks, Napster represented the Internet in miniature, an innovation that both demonstrated something on a scope and scale never seen before, and that also connected people around something they cared deeply about—their shared interest in music. Napster raised interesting questions about its own success: Was it successful because it allowed people to develop new musical interests on a scope and scale they had never experienced before? Or was it successful because it gave people with already existing musical interests a way to share music on a scope and scale they had never experienced before? That is to say, was it an innovation in marketing or in distribution? The music industry experienced it as the latter and hence as direct competition with their own means of distribution. Many music fans experienced it as the former, what Cory Doctorow nicely labeled "risk-free grazing," meaning the ability to try out an almost unimaginable diversity of music before choosing what to invest one’s interests (and money) in. To a large extent, Napster was therefore a recapitulation of what the Internet already meant to geeks. + +Bone’s message, the event of the Napster shutdown, and the various responses to it nicely illustrate the two key aspects of the recursive public: first, the way in which geeks argue not only about rights and ideas (e.g., is it legal to share music?) but also about the infrastructures that allow such arguing and sharing; second, the "layers" of a recursive public are evidenced in the immediate connection of Napster (an application familiar to millions) to the "decentralized routing protocols" (TCP/IP, DNS, and others) that made it possible for Napster to work the way it did. +={Domain Name System (DNS)} + +Bone’s message contains four interrelated points. The first concerns the concept of autonomous technical progress. The title "Prelude to the Singularity" refers to a 1993 article by Vernor Vinge about the notion of a "singularity," a point in time when the speed of autonomous technological development outstrips the human capacity to control it.~{ Vinge, "The Coming Technological Singularity." }~ The notion of singularity has the status of a kind of colloquial "law" similar to Moore’s Law or Metcalfe’s Law, as well as signaling links to a more general literature with roots in ,{[pg 53]}, libertarian or classically liberal ideas of social order ranging from John Locke and John Stuart Mill to Ayn Rand and David Brin.~{ Moore’s Law—named for Gordon Moore, former head of Intel—states that the speed and capacity of computer central processing units (CPUs) doubles every eighteen months, which it has done since roughly 1970. Metcalfe’s Law—named for Robert Metcalfe, inventor of Ethernet—states that the utility of a network equals the square of the number of users, suggesting that the number of things one can do with a network increases exponentially as members are added linearly. }~ +={liberalism, classical;Metcalfe's Law;Moore's Law;singularity;transhumanism;Locke, John;Mill, John Stuart;Rand, Ayn;Brin, David;Vinge, Vernor} + +Bone’s affinity for transhumanist stories of evolutionary theory, economic theory, and rapid innovation sets the stage for the rest of his message. The crucial rhetorical gambit here is the appeal to inevitability (as in the emphatic "there is no doubt that this will happen"): Bone establishes that he is speaking to an audience that is accustomed to hearing about the inevitability of technical progress and the impossibility of legal maneuvering to change it, but his audience may not necessarily agree with these assumptions. Geeks occupy a spectrum from "polymath" to "transhumanist," a spectrum that includes their understandings of technological progress and its relation to human intervention. Bone’s message clearly lands on the far transhumanist side. + +A second point concerns censorship and the locus of power: according to Bone, power does not primarily reside with the government or the church, but comes instead from the private sector, in this case the coalition of corporations represented by the RIAA. The significance of this has to do with the fact that a "public" is expected to be its own sovereign entity, distinct from church, state, or corporation, and while censorship by the church or the state is a familiar form of aggression against publics, censorship by corporations (or consortia representing them), as it strikes Bone and others, is a novel development. Whether the blocking of file-sharing can legitimately be called censorship is also controversial, and many Silk-list respondents found the accusation of censorship untenable. +={censorship+1;Recording Industry Association of America (RIAA)+1} + +Proving Bone’s contention, over the course of the subsequent years and court cases, the RIAA and the Motion Picture Association of America (MPAA) have been given considerably more police authority than even many federal agencies—especially with regard to policing networks themselves (an issue which, given its technical abstruseness, has rarely been mentioned in the mainstream mass media). Both organizations have not only sought to prosecute filesharers but have been granted rights to obtain information from Internet Service Providers about customer activities and have consistently sought the right to secretly disable (hack into, disable, or destroy) private computers suspected of illegal activity. Even if these practices may not be defined as censorship per se, they are nonetheless fine examples of the issues that most exercise geeks: the use of legal means by a few (in this case, private corporations) to ,{[pg 54]}, suppress or transform technologies in wide use by the many. They also index the problems of monopoly, antitrust, and technical control that are not obvious and often find expression, for example, in allegories of reformation and the control of the music-sharing laity by papal authorities. +={antitrust;monopoly;Motion Picture Association of America (MPAA);protestant Reformation:as usable past} + +Third, Bone’s message can itself be understood in terms of the reorientation of knowledge and power. Although what it means to call his message an "op-ed" piece may seem obvious, Bone’s message was not published anywhere in any conventional sense. It doesn’t appear to have been widely cited or linked to. However, for one day at least, it was a heated discussion topic on three mailing lists, including Silk-list. "Publication" in this instance is a different kind of event than getting an op-ed in the New York Times. +={publication+2} + +The material on Silk-list rests somewhere between private conversation (in a public place, perhaps) and published opinion. No editor made a decision to "publish" the message—Bone just clicked "send." However, as with any print publication, his piece was theoretically accessible by anyone, and what’s more, a potentially huge number of copies may be archived in many different places (the computers of all the participants, the server that hosts the list, the Yahoo! Groups servers that archive it, Google’s search databases, etc.). Bone’s message exemplifies the recursive nature of the recursive public: it is a public statement about the openness of the Internet, and it is an example of the new forms of publicness it makes possible through its openness. +={Internet+9} + +% Internet +9 is not in original index + +The constraints on who speaks in a public sphere (such as the power of printers and publishers, the requirements of licensing, or issues of cost and accessibility) are much looser in the Internet era than in any previous one. The Internet gives a previously unknown Jeff Bone the power to dash off a manifesto without so much as a second thought. On the other hand, the ease of distribution belies the difficulty of actually being heard: the multitudes of other Jeff Bones make it much harder to get an audience. In terms of publics, Bone’s message can constitute a public in the same sense that a New York Times op-ed can, but its impact and meaning will be different. His message is openly and freely available for as long as there are geeks and laws and machines that maintain it, but the New York Times piece will have more authority, will be less accessible, and, most important, will not be available to just anyone. Geeks imagine a space where anyone can speak with similar reach and staying ,{[pg 55]}, power—even if that does not automatically imply authority—and they imagine that it should remain open at all costs. Bone is therefore interested precisely in a technical infrastructure that ensures his right to speak about that infrastructure and offer critique and guidance concerning it. + +The ability to create and to maintain such a recursive public, however, raises the fourth and most substantial point that Bone’s message makes clear. The leap to speaking about the "decentralized routing protocols" represents clearly the shared moral and technical order of geeks, derived in this case from the specific details of the Internet. Bone’s post begins with a series of statements that are part of the common repertoire of technical stories and images among geeks. Bone begins by making reference to the "folklore" of the Internet, in which routing protocols are commonly believed to have been created to withstand a nuclear attack. In calling it folklore he suggests that this is not a precise description of the Internet, but an image that captures its design goals. Bone collapses it into a more recent bit of folklore: "The Internet treats censorship as damage and routes around it."~{ This quotation from the 1990s is attributed to Electronic Frontier Foundation’s founder and "cyber-libertarian" John Gilmore. Whether there ,{[pg 319]}, is any truth to this widespread belief expressed in the statement is not clear. On the one hand, the protocol to which this folklore refers—the general system of "message switching" and, later, "packet switching" invented by Paul Baran at RAND Corporation—does seem to lend itself to robustness (on this history, see Abbate, Inventing the Internet). However, it is not clear that nuclear threats were the only reason such robustness was a design goal; simply to ensure communication in a distributed network was necessary in itself. Nonetheless, the story has great currency as a myth of the nature and structure of the Internet. Paul Edwards suggests that both stories are true ("Infrastructure and Modernity," 216-20, 225n13). }~ Both bits of folklore are widely circulated and cited; they encapsulate one of the core intellectual ideas about the architecture of the Internet, that is, its open and distributed interconnectivity. There is certainly a specific technical backdrop for this suggestion: the TCP/IP "internetting" protocols were designed to link up multiple networks without making them sacrifice their autonomy and control. However, Bone uses this technical argument more in the manner of a social imaginary than of a theory, that is, as a way of thinking about the technical (and moral) order of the Internet, of what the Internet is supposed to be like. +={censorship+5;moral and technical order;Gilmore, John+1;Internet:folklore and;libertarianism+1;protocols:TCP/IP;social imaginary+10;TCP/IP (Transmission Control Protocol/Internet Protocol);folklore of Internet:see also usable pasts} + +In the early 1990s this version of the technical order of the Internet was part of a vibrant libertarian dogma asserting that the Internet simply could not be governed by any land-based sovereign and that it was fundamentally a place of liberty and freedom. This was the central message of people such as John Perry Barlow, John Gilmore, Howard Rheingold, Esther Dyson, and a host of others who populated both the pre-1993 Internet (that is, before the World Wide Web became widely available) and the pages of magazines such as Wired and Mondo 2000—the same group of people, incidentally, whose ideas were visible and meaningful to Udhay Shankar and his friends in India even prior to Internet access there, not to mention to Sean and Adrian in Boston, and artists and activists in ,{[pg 56]}, Europe, all of whom often reacted more strongly against this libertarian aesthetic. +={Barlow, John Perry;Doyle, Sean;Dyson, Esther;Rheingold, Howard;Shakar, Udhay;Wired (magazine)} + +For Jeff Bone (and a great many geeks), the folkloric notion that "the net treats censorship as damage" is a very powerful one: it suggests that censorship is impossible because there is no central point of control. A related and oft-cited sentiment is that "trying to take something off of the Internet is like trying to take pee out of a pool." This is perceived by geeks as a virtue, not a drawback, of the Internet. + +For Jeff Bone (and a great many geeks), the folkloric notion that "the net treats censorship as damage" is a very powerful one: it suggests that censorship is impossible because there is no central point of control. A related and oft-cited sentiment is that "trying to take something off of the Internet is like trying to take pee out of a pool." This is perceived by geeks as a virtue, not a drawback, of the Internet. + +On the other side of the spectrum, however, this view of the unregulatable nature of the Internet has been roundly criticized, most prominently by Lawrence Lessig, who is otherwise often in sympathy with geek culture. Lessig suggests that just because the Internet has a particular structure does not mean that it must always be that way.~{ Lessig, Code and Other Laws of Cyberspace. See also Gillespie, "Engineering a Principle" on the related history of the "end to end" design principle. }~ His argument has two prongs: first, that the Internet is structured the way it is because it is made of code that people write, and thus it could have been and will be otherwise, given that there are changes and innovations occurring all the time; second, that the particular structure of the Internet therefore governs or regulates behavior in particular ways: Code is Law. So while it may be true that no one can make the Internet "closed" by passing a law, it is also true that the Internet could become closed if the technology were to be altered for that purpose, a process that may well be nudged and guided by laws, regulations, and norms. +={norms;Lessig, Lawrence+2;recursive public:layers of+2;regulation:Internet} + +Lessig’s critique is actually at the heart of Bone’s concern, and the concern of recursive publics generally: the Internet is a contest and one that needs to be repeatedly and constantly replayed in order to maintain it as the legitimate infrastructure through which geeks associate with one another. Geeks argue in detail about what distinguishes technical factors from legal or social ones. Openness on the Internet is complexly intertwined with issues of availability, price, legal restriction, usability, elegance of design, censorship, trade secrecy, and so on. ,{[pg 57]}, + +However, even where openness is presented as a natural tendency for technology (in oft-made analogies with reproductive fitness and biodiversity, for example), it is only a partial claim in that it represents only one of the "layers" of a recursive public. For instance, when Bone suggests that the net is "invulnerable to legal attack" because "technology will evolve more quickly than businesses and social institutions can," he is not only referring to the fact that the Internet’s novel technical configuration has few central points of control, which makes it difficult for a single institution to control it, but also talking about the distributed, loosely connected networks of people who have the right to write and rewrite software and deal regularly with the underlying protocols of the Internet—in other words, of geeks themselves. + +Many geeks, perhaps including Bone, discover the nature of this order by coming to understand how the Internet works—how it works technically, but also who created it and how. Some have come to this understanding through participation in Free Software (an exemplary "recursive public"), others through stories and technologies and projects and histories that illuminate the process of creating, growing, and evolving the Internet. The story of the process by which the Internet is standardized is perhaps the most well known: it is the story of the Internet Engineering Task Force and its Requests for Comments system. +={Request for Comments (RFC)} + +2~ Requests for Comments +={Internet+9;Request for Comments (RFC)+7} + +For many geeks, the Internet Engineering Task Force (IETF) and its Requests for Comments (RFC) system exemplify key features of the moral and technical order they share, the "stories and practices" that make up a social imaginary, according to Charles Taylor. The IETF is a longstanding association of Internet engineers who try to help disseminate some of the core standards of the Internet through ,{[pg 58]}, the RFC process. Membership is open to individuals, and the association has very little real control over the structure or growth of the Internet—only over the key process of Internet standardization. Its standards rarely have the kind of political legitimacy that one associates with international treaties and the standards bodies of Geneva, but they are nonetheless de facto legitimate. The RFC process is an unusual standards process that allows modifications to existing technologies to be made before the standard is finalized. Together Internet standards and the RFC process form the background of the Napster debate and of Jeff Bone’s claims about "internet routing protocols." +={Internet Engineering Task Force (IETF)+8;moral and technical order+1;Napster+8;standards:Internet+6;standards processes+2;Taylor, Charles} + +A famous bit of Internet-governance folklore expresses succinctly the combination of moral and technical order that geeks share (attributed to IETF member David Clark): "We reject kings, presidents, and voting. We believe in rough consensus and running code."~{ This is constantly repeated on the Internet and attributed to David Clark, but no one really knows where or when he stated it. It appears in a 1997 interview of David Clark by Jonathan Zittrain, the transcript of which is available at http://cyber.law.harvard.edu/jzfallsem//trans/clark/ (accessed 18 August 2006). }~ This quote emphasizes the necessity of arguing with and through technology, the first aspect of a recursive public; the only argument that convinces is working code. If it works, then it can be implemented; if it is implemented, it will "route around" the legal damage done by the RIAA. The notion of "running code" is central to an understanding of the relationship between argumentby- technology and argument-by-talk for geeks. Very commonly, the response by geeks to people who argued about Napster that summer—and the courts’ decisions regarding it—was to dismiss their complaints as mere talk. Many suggested that if Napster were shut down, thousands more programs like it would spring up in its wake. As one mailing-list participant, Ashish "Hash" Gulhati, put it, "It is precisely these totally unenforceable and mindless judicial decisions that will start to look like self-satisfied wanking when there’s code out there which will make the laws worth less than the paper they’re written on. When it comes to fighting this shit in a way that counts, everything that isn’t code is just talk."~{ Ashish "Hash" Gulhati, e-mail to Silk-list mailing list, 9 September 2000, http://groups.yahoo.com/group/silk-list/message/3125. }~ +={Clark, David;Recording Industry Association of America (RIAA);Gulhati, Ashish;recursive public:layers of+3} + +Such powerful rhetoric often collapses the process itself, for someone has to write the code. It can even be somewhat paradoxical: there is a need to talk forcefully about the need for less talk and more code, as demonstrated by Eugen Leitl when I objected that Silk-listers were "just talking": "Of course we should talk. Did my last post consist of some kickass Python code adding sore-missed functionality to Mojonation? Nope. Just more meta-level waffle about the importance of waffling less, coding more. I lack the ,{[pg 59]}, proper mental equipment upstairs for being a good coder, hence I attempt to corrupt young impressionable innocents into contributing to the cause. Unashamedly so. So sue me."~{ Eugen Leitl, e-mail to Silk-list mailing list, 9 September 2000, http://groups.yahoo.com/group/silk-list/message/3127. Python is a programming language. Mojonation was a very promising peer-to-peer application in 2000 that has since ceased to exist. }~ +={Leitl, Eugene;programming+1} + +Eugen’s flippancy reveals a recognition that there is a political component to coding, even if, in the end, talk disappears and only code remains. Though Eugen and others might like to adopt a rhetoric that suggests "it will just happen," in practice none of them really act that way. Rather, the activities of coding, writing software, or improving and diversifying the software that exists are not inevitable or automatic but have specific characteristics. They require time and "the proper mental equipment." The inevitability they refer to consists not in some fantasy of machine intelligence, but in a social imaginary shared by many people in loosely connected networks who spend all their free time building, downloading, hacking, testing, installing, patching, coding, arguing, blogging, and proselytizing—in short, creating a recursive public enabled by the Internet. + +Jeff Bone’s op-ed piece, which is typically enthusiastic about the inevitability of new technologies, still takes time to reference one of thousands (perhaps tens of thousands) of projects as worthy of attention and support, a project called Fling, which is an attempt to rewrite the core protocols of the Internet.~{ In particular, this project focuses on the Transmission Control Protocol (TCP), the User Datagram Protocol (UDP), and the Domain Name System (DNS). The first two have remained largely stable over the last thirty years, but the DNS system has been highly politicized (see Mueller, Ruling the Root). }~ The goal of the project is to write a software implementation of these protocols with the explicit goal of making them "anonymous, untraceable, and untappable." Fling is not a corporation, a start-up, or a university research project (though some such projects are); it is only a Web site. The core protocols of the Internet, contained in the RFCs, are little more than documents describing how computers should interact with each other. They are standards, but of an unusual kind.~{ On Internet standards, see Schmidt and Werle, Coordinating Technology; Abbate and Kahin, Standards Policy for Information Infrastructure. }~ Bone’s leap from a discussion about Napster to one about the core protocols of the Internet is not unusual. It represents the second aspect of a recursive public: the importance of understanding the Internet as a set of "layers," each enabling the next and each requiring an openness that both prevents central control and leads to maximum creativity. +={protocols:TCP/IP+1;TCP/IP (Transmission Control Protocol/Internet Protocol)} + +% ={Domain Name System (DNS);Napster} ={Napster;Standards;Standards processes} + +RFCs have developed from an informal system of memos into a formal standardization process over the life of the Internet, as the IETF and the Internet Society (ISOC) have become more bureaucratic entities. The process of writing and maintaining these documents is particular to the Internet, precisely because the Internet ,{[pg 60]}, is the kind of network experiment that facilitates the sharing of resources across administratively bounded networks. It is a process that has allowed all the experimenters to both share the network and to propose changes to it, in a common space. RFCs are primarily suggestions, not demands. They are "public domain" documents and thus available to everyone with access to the Internet. As David Clark’s reference to "consensus and running code" demonstrates, the essential component of setting Internet standards is a good, working implementation of the protocols. Someone must write software that behaves in the ways specified by the RFC, which is, after all, only a document, not a piece of software. Different implementations of, for example, the TCP/IP protocol or the File Transfer Protocol (ftp) depend initially on individuals, groups, and/or corporations building them into an operating-system kernel or a piece of user software and subsequently on the existence of a large number of people using the same operating system or application. +={Internet Society (ISOC);Clark, David;standards processes+2} + +In many cases, subsequent to an implementation that has been disseminated and adopted, the RFCs have been amended to reflect these working implementations and to ordain them as standards. So the current standards are actually bootstrapped, through a process of writing RFCs, followed by a process of creating implementations that adhere loosely to the rules in the RFC, then observing the progress of implementations, and then rewriting RFCs so that the process begins all over again. The fact that geeks can have a discussion via e-mail depends on the very existence of both an RFC to define the e-mail protocol and implementations of software to send the e-mails. + +This standardization process essentially inverts the process of planning. Instead of planning a system, which is then standardized, refined, and finally built according to specification, the RFC process allows plans to be proposed, implemented, refined, reproposed, rebuilt, and so on until they are adopted by users and become the standard approved of by the IETF. The implication for most geeks is that this process is permanently and fundamentally open: changes to it can be proposed, implemented, and adopted without end, and the better a technology becomes, the more difficult it becomes to improve on it, and therefore the less reason there is to subvert it or reinvent it. Counterexamples, in which a standard emerges but no one adopts it, are also plentiful, and they suggest that the standardization process extends beyond the proposal-implementation-proposal-standard ,{[pg 61]}, circle to include the problem of actually convincing users to switch from one working technology to a better one. However, such failures of adoption are also seen as a kind of confirmation of the quality or ease of use of the current solution, and they are all the more likely to be resisted when some organization or political entity tries to force users to switch to the new standard—something the IETF has refrained from doing for the most part. +={planning} + +2~ Conclusion: Recursive Public +={public+7} + +Napster was a familiar and widely discussed instance of the "reorientation of power and knowledge" (or in this case, power and music) wrought by the Internet and the practices of geeks. Napster was not, however, a recursive public or a Free Software project, but a dot-com-inspired business plan in which proprietary software was given away for free in the hopes that revenue would flow from the stock market, from advertising, or from enhanced versions of the software. Therefore, geeks did not defend Napster as much as they experienced its legal restriction as a wake-up call: the Internet enables Napster and will enable many other things, but laws, corporations, lobbyists, money, and governments can destroy all of it. +={music;reorientation of power and knowledge} + +I started this chapter by asking what draws geeks together: what constitutes the chain that binds geeks like Sean and Adrian to hipsters in Berlin and to entrepreneurs and programmers in Bangalore? What constitutes their affinity if it is not any of the conventional candidates like culture, nation, corporation, or language? A colloquial answer might be that it is simply the Internet that brings them together: cyberspace, virtual communities, online culture. But this doesn’t answer the question of why? Because they can? Because Community Is Good? If mere association is the goal, why not AOL or a vast private network provided by Microsoft? +={affinity (of geeks)+2;Berlin;Doyle, Sean} + +My answer, by contrast, is that geeks’ affinity with one another is structured by shared moral and technical understandings of order. They are a public, an independent public that has the ability to build, maintain, and modify itself, that is not restricted to the activities of speaking, writing, arguing, or protesting. Recursive publics form through their experience with the Internet precisely because the Internet is the kind of thing they can inhabit and transform. Two ,{[pg 62]}, things make recursive publics distinctive: the ability to include the practice of creating this infrastructure as part of the activity of being public or contesting control; and the ability to "recurse" through the layers of that infrastructure, maintaining its publicness at each level without making it into an unchanging, static, unmodifiable thing. +={moral and technical order;Infrastructure+4} + +The affinity constituted by a recursive public, through the medium of the Internet, creates geeks who understand clearly what association through the Internet means. This affinity structures their imagination of what the Internet is and enables: creation, distribution, modification of knowledge, music, science, software. The infrastructure—this-infrastructure-here, the Internet—must be understood as part of this imaginary (in addition to being a pulsating tangle of computers, wires, waves, and electrons). +={music} + +The Internet is not the only medium for such association. A corporation, for example, is also based on a shared imaginary of the economy, of how markets, exchanges, and business cycles are supposed to work; it is the creation of a concrete set of relations and practices, one that is generally inflexible—even in this age of socalled flexible capitalism—because it requires a commitment of time, humans, and capital. Even in fast capitalism one needs to rent office space, buy toilet paper, install payroll software, and so on. + +The Internet is not the only medium for such association. A corporation, for example, is also based on a shared imaginary of the economy, of how markets, exchanges, and business cycles are supposed to work; it is the creation of a concrete set of relations and practices, one that is generally inflexible—even in this age of socalled flexible capitalism—because it requires a commitment of time, humans, and capital. Even in fast capitalism one needs to rent office space, buy toilet paper, install payroll software, and so on. + +The urgency evidenced in the case of Napster (and repeated in numerous other instances, such as the debate over net neutrality) is linked to a moral idea of order in which there is a shared imaginary,{[pg 63]}, of The Public, and not only a vast multiplicity of competing publics. It is an urgency linked directly to the fact that the Internet provides geeks with a platform, an environment, an infrastructure through which they not only associate, but create, and do so in a manner that is widely felt to be autonomous, autotelic, and independent of at least the most conventional forms of power: states and corporations—independent enough, in fact, that both states and corporations can make widespread use of this infrastructure (can become geeks themselves) without necessarily endangering its independence. +={Napster;moral and technical order} + +% ={Public:autotelic and independent} + +1~ 2. Protestant Reformers, Polymaths, Transhumanists +={allegory, of Protestant Reformation+54;Protestant Reformation+54;transhumanism} + +% this Transhumanism ref not in original index + +% [PAGE 64] + +Geeks talk a lot. They don’t talk about recursive publics. They don’t often talk about imaginations, infrastructures, moral or technical orders. But they do talk a lot. A great deal of time and typing is necessary to create software and networks: learning and talking, teaching and arguing, telling stories and reading polemics, reflecting on the world in and about the infrastructure one inhabits. In this chapter I linger on the stories geeks tell, and especially on stories and reflections that mark out contemporary problems of knowledge and power—stories about grand issues like progress, enlightenment, liberty, and freedom. +={moral and technical order;enlightenment+3;Geeks+6;Progress+3} + +Issues of enlightenment, progress, and freedom are quite obviously still part of a "social imaginary," especially imaginations of the relationship of knowledge and enlightenment to freedom and autonomy so clearly at stake in the notion of a public or public ,{[pg 65]}, sphere. And while the example of Free Software illuminates how issues of enlightenment, progress, and freedom are proposed, contested, and implemented in and through software and networks, this chapter contains stories that are better understood as "usable pasts"—less technical and more accessible narratives that make sense of the contemporary world by reflecting on the past and its difference from today. +={social imaginary;usable pasts+2} + +Usable pasts is a more charitable term for what might be called modern myths among geeks: stories that the tellers know to be a combination of fact and fiction. They are told not in order to remember the past, but in order to make sense of the present and of the future. They make sense of practices that are not questioned in the doing, but which are not easily understood in available intellectual or colloquial terms. The first set of stories I relate are those about the Protestant Reformation: allegories that make use of Catholic and Protestant churches, laity, clergy, high priests, and reformation-era images of control and liberation. It might be surprising that geeks turn to the past (and especially to religious allegory) in order to make sense of the present, but the reason is quite simple: there are no "ready-to-narrate" stories that make sense of the practices of geeks today. Precisely because geeks are "figuring out" things that are not clear or obvious, they are of necessity bereft of effective ways of talking about it. The Protestant Reformation makes for good allegory because it separates power from control; it draws on stories of catechism and ritual, alphabets, pamphlets and liturgies, indulgences and self-help in order to give geeks a way to make sense of the distinction between power and control, and how it relates to the technical and political economy they occupy. The contemporary relationship among states, corporations, small businesses, and geeks is not captured by familiar oppositions like commercial/noncommercial, for/against private property, or capitalist/socialist—it is a relationship of reform and conversion, not revolution or overthrow. +={figuring out} + +Usable pasts are stories, but they are stories that reflect specific attitudes and specific ways of thinking about the relationship between past, present, and future. Geeks think and talk a lot about time, progress, and change, but their conclusions and attitudes are by no means uniform. Some geeks are much more aware of the specific historical circumstances and contexts in which they operate, others less so. In this chapter I pose a question via Michel ,{[pg 66]}, Foucault’s famous short piece "What Is Enlightenment?" Namely, are geeks modern? For Foucault, rereading Kant’s eponymous piece from 1784, the problem of being modern (or of an age being "enlightened") is not one of a period or epoch that people live through; rather, it involves a subjective relationship, an attitude. Kant’s explanation of enlightenment does not suggest that it is itself a universal, but that it occurs through a form of reflection on what difference the changes of one’s immediate historical past make to one’s understanding of the supposed universals of a much longer history—that is, one must ask why it is necessary to think the way one does today about problems that have been confronted in ages past. For Foucault, such reflections must be rooted in the "historically unique forms in which the generalities of our relations . . . have been problematized."~{ Foucault, "What Is Enlightenment," 319. }~ Thus, I want to ask of geeks, how do they connect the historically unique problems they confront—from the Internet to Napster to intellectual property to sharing and reusing source code—to the generalities of relations in which they narrate them as problems of liberty, knowledge, power, and enlightenment? Or, as Foucault puts it, are they modern in this sense? Do they "despise the present" or not? +={Foucault, Michel;geeks:as moderns;intellectual property;Kant, Immanuel;Napster} + +The attitudes that geeks take in responding to these questions fall along a spectrum that I have identified as ranging from "polymaths" to "transhumanists." These monikers are drawn from real discussions with geeks, but they don’t designate a kind of person. They are "subroutines," perhaps, called from within a larger program of moral and technical imaginations of order. It is possible for the same person to be a polymath at work and a transhumanist at home, but generally speaking they are conflicting and opposite mantles. In polymath routines, technology is an intervention into a complicated, historically unique field of people, customs, organizations, other technologies, and laws; in transhumanist routines, technology is seen as an inevitable force—a product of human action, but not of human design—that is impossible to control or resist through legal or customary means. +={intervention, technology as;moral and technical order;transhumanism} + +2~ Protestant Reformation + +Geeks love allegories about the Protestant Reformation; they relish stories of Luther and Calvin, of popery and iconoclasm, of reformation ,{[pg 67]}, over revolution. Allegories of Protestant revolt allow geeks to make sense of the relationship between the state (the monarchy), large corporations (the Catholic Church), the small start-ups, individual programmers, and adepts among whom they spend most of their time (Protestant reformers), and the laity (known as "lusers" and "sheeple"). It gives them a way to assert that they prefer reformation (to save capitalism from the capitalists) over revolution. Obviously, not all geeks tell stories of "religious wars" and the Protestant Reformation, but these images reappear often enough in conversations that most geeks will more or less instantly recognize them as a way of making sense of modern corporate, state, and political power in the arena of information technology: the figures of Pope, the Catholic Church, the Vatican, the monarchs of various nations, the laity, the rebel adepts like Luther and Calvin, as well as models of sectarianism, iconoclasm ("In the beginning was the Command Line"), politicoreligious power, and arcane theological argumentation.~{ Stephenson, In the Beginning Was the Command Line. }~ The allegories that unfold provide geeks a way to make sense of a similarly complex modern situation in which it is not the Church and the State that struggle, but the Corporation and the State; and what geeks struggle over are not matters of church doctrine and organization, but matters of information technology and its organization as intellectual property and economic motor. I stress here that this is not an analogy that I myself am making (though I happily make use of it), but is one that is in wide circulation among the geeks I study. To the historian or religious critic, it may seem incomplete, or absurd, or bizarre, but it still serves a specific function, and this is why I highlight it as one component of the practical and technical ideas of order that geeks share. +={Intellectual property;Luther, Martin+15;reformation vs. revolution;religious wars+5} + +% this "intellectual property" reference not in original index + +At the first level are allegories of "religious war" or "holy war" (and increasingly, of "jihads"). Such stories reveal a certain cynicism: they describe a technical war of details between two pieces of software that accomplish the same thing through different means, so devotion to one or the other is seen as a kind of arbitrary theological commitment, at once reliant on a pure rationality and requiring aesthetic or political judgment. Such stories imply that two technologies are equally good and equally bad and that one’s choice of sect is thus an entirely nonrational one based in the vicissitudes of background and belief. Some people are zealous proselytizers of a technology, some are not. As one Usenet message explains: "Religious ‘wars’ have tended to occur over theological and doctrinal ,{[pg 68]}, technicalities of one sort or another. The parallels between that and the computing technicalities that result in ‘computing wars’ are pretty strong."~{ Message-ID: { tht55.221960$701.2930569@news4.giganews.com. }http://groups.google.com/groups?selm=tht55.221960$701.2930569@news4.giganews.com }~ + +Perhaps the most familiar and famous of these wars is that between Apple and Microsoft (formerly between Apple and IBM), a conflict that is often played out in dramatic and broad strokes that imply fundamental differences, when in fact the differences are extremely slight.~{ The Apple-Microsoft conflict was given memorable expression by Umberto Eco in a widely read piece that compared the Apple user interface ,{[pg 320]}, to Catholicism and the PC user interface to Protestantism ("La bustina di Minerva," Espresso, 30 September 1994, back page). }~ Geeks are also familiar with a wealth of less well-known "holy wars": EMACS versus vi; KDE versus Gnome; Linux versus BSD; Oracle versus all other databases.~{ One entry on Wikipedia differentiates religious wars from run-of-the-mill "flame wars" as follows: "Whereas a flame war is usually a particular spate of flaming against a non-flamy background, a holy war is a drawn-out disagreement that may last years or even span careers" ("Flaming [Internet]," http://en.wikipedia.org/wiki/Flame_war [accessed 16 January 2006]). }~ + +Often the language of the Reformation creeps playfully into otherwise serious attempts to make aesthetic judgments about technology, as in this analysis of the programming language tcl/tk: +={programming languages+2} + +_1 It’s also not clear that the primary design criterion in tcl, perl, or Visual BASIC was visual beauty—nor, probably, should it have been. Ousterhout said people will vote with their feet. This is important. While the High Priests in their Ivory Towers design pristine languages of stark beauty and balanced perfection for their own appreciation, the rest of the mundane world will in blind and contented ignorance go plodding along using nasty little languages like those enumerated above. These poor sots will be getting a great deal of work done, putting bread on the table for their kids, and getting home at night to share it with them. The difference is that the priests will shake their fingers at the laity, and the laity won’t care, because they’ll be in bed asleep.~{ Message-ID: { 369tva$8l0@csnews.cs.colorado.edu. }http://groups.google.com/groups?selm=369tva$8l0@csnews.cs.colorado.edu }~ + +In this instance, the "religious war" concerns the difference between academic programming languages and regular programmers made equivalent to a distinction between the insularity of the Catholic Church and the self-help of a protestant laity: the heroes (such as tcl/tk, perl, and python—all Free Software) are the "nasty little languages" of the laity; the High Priests design (presumably) Algol, LISP, and other "academic" languages. +={perl (programming language);python (programming language);tcl/tk (programming language)} + +At a second level, however, the allegory makes precise use of Protestant Reformation details. For example, in a discussion about the various fights over the Gnu C Compiler (gcc), a central component of the various UNIX operating systems, Christopher Browne posted this counter-reformation allegory to a Usenet group. +={GNU C Compiler (gcc)+6;UNIX operating system} + +_1 The EGCS project was started around two years ago when G++ (and GCC) development got pretty "stuck." EGCS sought to integrate together ,{[pg 69]}, a number of the groups of patches that people were making to the GCC "family." In effect, there had been a "Protestant Reformation," with split-offs of: + +_2 a) The GNU FORTRAN Denomination; + +_2 b) The Pentium Tuning Sect; + +_2 c) The IBM Haifa Instruction Scheduler Denomination; + +_2 d) The C++ Standard Acolytes. + +_1 These groups had been unable to integrate their efforts (for various reasons) with the Catholic Version, GCC 2.8. The Ecumenical GNU Compiler Society sought to draw these groups back into the Catholic flock. The project was fairly successful; GCC 2.8 was succeeded by GCC 2.9, which was not a direct upgrade from 2.8, but rather the results of the EGCS project. EGCS is now GCC.~{ Message-ID: { c1dz4.145472$mb.2669517@news6.giganews.com. }http://groups.google.com/groups?selm=c1dz4.145472$mb.2669517@news6.giganews.com It should be noted, in case the reader is unsure how serious this is, that EGCS stood for Extended GNU Compiler System, not Ecumenical GNU Compiler Society. }~ + +In addition to the obvious pleasure with which they deploy the sectarian aspects of the Protestant Reformation, geeks also allow themselves to see their struggles as those of Luther-like adepts, confronted by powerful worldly institutions that are distinct but intertwined: the Catholic Church and absolutist monarchs. Sometimes these comparisons are meant to mock theological argument; sometimes they are more straightforwardly hagiographic. For instance, a 1998 article in Salon compares Martin Luther and Linus Torvalds (originator of the Linux kernel). +={Linux (Free Software project);Torvalds, Linus+1} + +_1 In Luther’s Day, the Roman Catholic Church had a near-monopoly on the cultural, intellectual and spiritual life of Europe. But the principal source text informing that life—the Bible—was off limits to ordinary people. . . . Linus Torvalds is an information-age reformer cut from the same cloth. Like Luther, his journey began while studying for ordination into the modern priesthood of computer scientists at the University of Helsinki—far from the seats of power in Redmond and Silicon Valley. Also like Luther, he had a divine, slightly nutty idea to remove the intervening bureaucracies and put ordinary folks in a direct relationship to a higher power—in this case, their computers. Dissolving the programmer-user distinction, he encouraged ordinary people to participate in the development of their computing environment. And just as Luther sought to make the entire sacramental shebang—the wine, the bread and the translated Word—available to the hoi polloi, Linus seeks to revoke the developer’s proprietary access to the OS, insisting that the full operating system source code be delivered—without cost—to every ordinary Joe at the desktop.~{ "Martin Luther, Meet Linus Torvalds," Salon, 12 November 1998, http://archive.salon.com/21st/feature/1998/11/12feature.html (accessed 5 February 2005). }~ ,{[pg 70]}, + +Adepts with strong convictions—monks and priests whose initiation and mastery are evident—make the allegory work. Other uses of Christian iconography are less, so to speak, faithful to the sources. Another prominent personality, Richard Stallman, of the Free Software Foundation, is prone to dressing as his alter-ego, St. IGNUcius, patron saint of the church of EMACS—a church with no god, but intense devotion to a baroque text-processing program of undeniable, nigh-miraculous power.~{ See http://www.stallman.org/saint.html (accessed 5 February 2005) and http://www.dina.kvl.dk/~abraham/religion/ (accessed 5 February 2005). On EMACS, see chapter 6. }~ +={EMACS (text editor);Stallman, Richard} + +Often the appeal of Reformation-era rhetoric comes from a kind of indictment of the present: despite all this high tech, super-fabulous computronic wonderfulness, we are no less feudal, no less violent, no less arbitrary and undemocratic; which is to say, geeks have progressed, have seen the light and the way, but the rest of society—and especially management and marketing—have not. In this sense, Reformation allegories are stories of how "things never change." + +But the most compelling use of the Protestant Reformation as usable past comes in the more detailed understandings geeks have of the political economy of information technology. The allegorization of the Catholic Church with Microsoft, for instance, is a frequent component, as in this brief message regarding start-up key combinations in the Be operating system: "These secret handshakes are intended to reinforce a cabalistic high priesthood and should not have been disclosed to the laity. Forget you ever saw this post and go by [sic] something from Microsoft."~{ Message-ID: 6ms27l$6e1@bgtnsc01.worldnet.att.net. In one very humorous case the comparison is literalized "Microsoft acquires Catholic Church" (Message-ID: gaijin-870804300-dragonwing@sec.lia.net). }~ +={Microsoft:as Catholic Church+1;usable pasts} + +More generally, large corporations like IBM, Oracle, or Microsoft are made to stand in for Catholicism, while bureaucratic congresses and parliaments with their lobbyists take on the role of absolutist monarchs and their cronies. Geeks can then see themselves as fighting to uphold Christianity (true capitalism) against the church (corporations) and to be reforming a way of life that is corrupted by church and monarchs, instead of overthrowing through revolution a system they believe to be flawed. There is a historically and technically specific component of this political economy in which it is in the interest of corporations like IBM and Microsoft to keep users "locked as securely to Big Blue as an manacled wretch in a medieval dungeon."~{ Paul Fusco, "The Gospel According to Joy," New York Times, 27 March 1988, Sunday Magazine, 28. }~ +={International Business Machines (IBM)} + +Such stories appeal because they bypass the language of modern American politics (liberal, conservative, Democrat, Republican) in which there are only two sides to any issue. They also bypass an ,{[pg 71]}, argument between capitalism and socialism, in which if you are not pro-capitalism you must be a communist. They are stories that allow the more pragmatist of the geeks to engage in intervention and reformation, rather than revolution. Though I’ve rarely heard it articulated so bluntly, the allegory often implies that one must "save capitalism from the capitalists," a sentiment that implies at least some kind of human control over capitalism. +={control, relationship to power;power, relationship to control;Reformation vs. revolution} + +In fact, the allegorical use of the Reformation and the church generates all kinds of clever comparisons. A typical description of such comparisons might go like this: the Catholic Church stands in for large, publicly traded corporations, especially those controlling large amounts of intellectual property (the granting of which might roughly be equated with the ceremonies of communion and confession) for which they depend on the assistance and support of national governments. Naturally, it is the storied excesses of the church—indulgences, liturgical complexity, ritualistic ceremony, and corruption—which make for easy allegory. Modern corporations can be figured as a small, elite papal body with theologians (executives and their lawyers, boards of directors and their lawyers), who command a much larger clergy (employees), who serve a laity (consumers) largely imagined to be sinful (underspending on music and movies—indeed, even "stealing" them) and thus in need of elaborate and ritualistic cleansing (advertising and lawsuits) by the church. Access to grace (the American Dream) is mediated only by the church and is given form through the holy acts of shopping and home improvement. The executives preach messages of damnation to the government, messages most government officials are all too willing to hear: do not tamper with our market share, do not affect our pricing, do not limit our ability to expand these markets. The executives also offer unaccountable promises of salvation in the guise of deregulation and the American version of "reform"—the demolition of state and national social services. Government officials in turn have developed their own "divine right of kings," which justifies certain forms of manipulation (once called "elections") of succession. Indulgences are sold left and right by lobbyists or industry associations, and the decrees of the papacy evidence little but full disconnection from the miserable everyday existence of the flock. + +In fact, it is remarkable how easy such comparisons become the more details of the political economy of information one learns. But ,{[pg 72]}, allegories of the Reformation and clerical power can lead easily to cynicism, which should perhaps be read in this instance as evidence of political disenfranchisement, rather than a lapse in faith. And yet the usable pasts of these reformation-minded modern monks and priests crop up regularly not only because they provide relief from technical chatter but because they explain a political, technical, legal situation that does not have ready-to-narrate stories. Geeks live in a world finely controlled by corporate organizations, mass media, marketing departments, and lobbyists, yet they share a profound distrust of government regulation—they need another set of just-so stories to make sense of it. The standard unusable pasts of the freeing of markets, the inevitability of capitalism and democracy, or more lately, the necessity of security don’t do justice to their experience. + +Allegories of Reformation are stories that make sense of the political economy of information. But they also have a more precise use: to make sense of the distinction between power and control. Because geeks are "closer to the machine" than the rest of the laity, one might reasonably expect them to be the ones in power. This is clearly not the case, however, and it is the frustrations and mysteries by which states, corporations, and individuals manipulate technical details in order to shift power that often earns the deepest ire of geeks. Control, therefore, includes the detailed methods and actual practices by which corporations, government agencies, or individuals attempt to manipulate people (or enroll them to manipulate themselves and others) into making technical choices that serve power, rather than rationality, liberty, elegance, or any other geekly concern. +={control, relationship to power} + +Consider the subject of evil. During my conversations with Sean Doyle in the late 1990s, as well as with a number of other geeks, the term evil was regularly used to refer to some kind of design or technical problem. I asked Sean what he meant. +={Doyle, Sean+6;evil+6} + +!_ SD: +[Evil is] just a term I use to say that something’s wrong, but usually it means something is wrong on purpose, there was agency behind it. I can’t remember [the example you gave] but I think it may have been some GE equipment, where it has this default where it likes to send things in its own private format rather than in DICOM [the radiology industry standard for digital images], if you give it a choice. I don’t know why they would have done something like that, ,{[pg 73]}, it doesn’t solve any backward compatibility problem, it’s really just an exclusionary sort of thing. So I guess there’s Evil like that. . . . + +!_ CK: +one of the other examples that you had . . . was something with Internet Explorer 3.0? +={Microsoft:Internet Explorer} + +!_ SD: +Yes, oh yes, there are so many things with IE3 that are completely Evil. Like here’s one of them: in the http protocol there’s a thing called the "user agent field" where a browser announces to the server who it is. If you look at IE, it announces that it is Mozilla, which is the [code-name for] Netscape. Why did they do this? Well because a lot of the web servers were sending out certain code that said, if it were Mozilla they would serve the stuff down, [if not] they would send out something very simple or stupid that would look very ugly. But it turned out that [IE3, or maybe IE2] didn’t support things when it first came out. Like, I don’t think they supported tables, and later on, their versions of Javascript were so different that there was no way it was compatible—it just added tremendous complexity. It was just a way of pissing on the Internet and saying there’s no law that says we have to follow these Internet standards. We can do as we damn well please, and we’re so big that you can’t stop us. So I view it as Evil in that way. I mean they obviously have the talent to do it. They obviously have the resources to do it. They’ve obviously done the work, it’s just that they’ll have this little twitch where they won’t support a certain MIME type or they’ll support some things differently than others. +={Hypertext Transfer Protocol (http);Mozilla;standards:Internet} + +!_ CK: +But these kinds of incompatibility issues can happen as a result of a lack of communication or coordination, which might involve agency at some level, right? + +!_ SD: +Well, I think of that more as Stupidity than Evil [laughter]. No, Evil is when there is an opportunity to do something, and an understanding that there is an opportunity to, and resources and all that—and then you do something just to spite the other person. You know I’m sure it’s like in messy divorces, where you would rather sell the property at half its value rather than have it go to the other person. + +Sean relates control to power by casting the decisions of a large corporation in a moral light. Although the specific allegory of the Protestant Reformation does not operate here, the details do. Microsoft’s decision to manipulate Internet Explorer’s behavior stems not from a lack of technical sophistication, nor is it an "accident" of ,{[pg 74]}, complexity, according to Sean, but is a deliberate assertion of economic and political power to corrupt the very details by which software has been created and standardized and is expected to function. The clear goal of this activity is conversion, the expansion of Microsoft’s flock through a detailed control of the beliefs and practices (browsers and functionality) of computer users. Calling Microsoft "Evil" in this way has much the same meaning as questioning the Catholic Church’s use of ritual, ceremony, literacy, and history—the details of the "implementation" of religion, so to speak. +={Microsoft:as Catholic Church+9|Internet Explorer;power, relationship to control:see also reorientation of power and knowledge} + +Or, in the terms of the Protestant Reformation itself, the practices of conversion as well as those of liberation, learning, and self-help are central to the story. It is not an accident that many historians of the Reformation themselves draw attention to the promises of liberation through reformation "information technologies."~{ See, for example, Matheson, The Imaginative World of the Reformation. There is rigorous debate about the relation of print, religion, and capitalism: one locus classicus is Eisenstein’s The Printing Press as an Agent of Change, which was inspired by McLuhan, The Gutenberg Galaxy. See also Ian Green, Print and Protestantism in Early Modern England and The Christian’s ABCs; Chadwick, The Early Reformation on the Continent, chaps. 1-3. }~ Colloquial (and often academic) assertions that the printing press was technologically necessary or sufficient to bring the Reformation about appear constantly as a parable of this new age of information. Often the printing press is the only "technological" cause considered, but scholars of the real, historical Reformation also pay close attention to the fact of widespread literacy, to circulating devotional pamphlets, catechisms, and theological tracts, as well as to the range of transformations of political and legal relationships that occurred simultaneously with the introduction of the printing press. + +✠  © + +One final way to demonstrate the effectiveness of these allegories—their ability to work on the minds of geeks—is to demonstrate how they have started to work on me, to demonstrate how much of a geek I have become—a form of participant allegorization, so to speak. The longer one considers the problems that make up the contemporary political economy of information technology that geeks inhabit, the more likely it is that these allegories will start to present themselves almost automatically—as, for instance, when I read The Story of A, a delightful book having nothing to do with geeks, a book about literacy in early America. The author, Patricia Crain, explains that the Christ’s cross (see above) was often used in the creation of hornbooks or battledores, small leather-backed paddles inscribed with the Lord’s Prayer and the alphabet, which were used ,{[pg 75]}, to teach children their ABCs from as early as the fifteenth century until as late as the nineteenth: "In its early print manifestations, the pedagogical alphabet is headed not by the letter A but by the ‘Christ’s Cross’: ✠. . . . Because the alphabet is associated with Catholic Iconography, as if the two sets of signs were really part of one semiological system, one of the struggles of the Reformation would be to wrest the alphabet away from the Catholic Church."~{ Crain, The Story of A, 16-17. }~ +={Crain, Patricia+1} + +Here, allegorically, the Catholic Church’s control of the alphabet (like Microsoft’s programming of Internet Explorer to blur public standards for the Internet) is not simply ideological; it is not just a fantasy of origin or ownership planted in the fallow mental soil of believers, but in fact a very specific, very nonsubjective, and very media-specific normative tool of control. Crain explains further: "Today ✠ represents the imprimatur of the Catholic Church on copyright pages. In its connection to the early modern alphabet as well, this cross carries an imprimatur or licensing effect. This ‘let it be printed,’ however, is directed not to the artisan printer but to the mind and memory of the young scholar. . . . Like modern copyright, the cross authorizes the existence of the alphabet and associates the letters with sacred authorship, especially since another long-lived function of ✠ in liturgical missals is to mark gospel passages. The symbol both conveys information and generates ritual behavior."~{ Ibid., 20-21. }~ +={Copyright+2;Microsoft:Internet Explorer;authorship;standards:Internet} + +% Internet Standards added + +The © today carries as much if not more power, both ideologically and legally, as the cross of the Catholic church. It is the very symbol of authorship, even though in origin and in function it governs only ownership and rights. Magical thinking about copyright abounds, but one important function of the symbol ©, if not its legal implications, is to achieve the same thing as the Christ’s cross: to associate in the mind of the reader the ownership of a particular text (or in this case, piece of software) with a particular organization or person. Furthermore, even though the symbol is an artifact of national and international law, it creates an association not between a text and the state or government, but between a text and particular corporations, publishers, printers, or authors. + +Like the Christ’s cross, the copyright symbol carries both a licensing effect (exclusive, limited or nonexclusive) and an imprimatur on the minds of people: "let it be imprinted in memory" that this is the work of such and such an author and that this is the property of such and such a corporation. +={intellectual property} + +% ,{[pg 76]}, + +Without the allegory of the Protestant Reformation, the only available narrative for such evil—whether it be the behavior of Microsoft or of some other corporation—is that corporations are "competing in the marketplace according to the rules of capitalism" and thus when geeks decry such behavior, it’s just sour grapes. If corporations are not breaking any laws, why shouldn’t they be allowed to achieve control in this manner? In this narrative there is no room for a moral evaluation of competition—anything goes, it would seem. Claiming for Microsoft that it is simply playing by the rules of capitalism puts everyone else into either the competitor box or the noncompetitor box (the state and other noncompetitive organizations). Using the allegory of the Protestant Reformation, on the other hand, gives geeks a way to make sense of an unequal distribution among competing powers—between large and small corporations, and between market power and the details of control. It provides an alternate imagination against which to judge the technically and legally specific actions that corporations and individuals take, and to imagine forms of justified action in return. +={evil+1} + +Without such an allegory, geeks who oppose Microsoft are generally forced into the position of being anticapitalist or are forced to adopt the stance that all standards should be publicly generated and controlled, a position few wish to take. Indeed, many geeks would prefer a different kind of imaginary altogether—a recursive public, perhaps. Instead of an infrastructure subject to unequal distributions of power and shot through with "evil" distortions of technical control, there is, as geeks see it, the possibility for a "self-leveling" level playing field, an autotelic system of rules, both technical and legal, by which all participants are expected to compete equally. Even if it remains an imaginary, the allegory of the Protestant Reformation makes sense of (gives order to) the political economy of the contemporary information-technology world and allows geeks to conceive of their interests and actions according to a narrative of reformation, rather than one of revolution or submission. In the Reformation the interpretation or truth of Christian teaching was not primarily in question: it was not a doctrinal revolution, but a bureaucratic one. Likewise, geeks do not question the rightness of networks, software, or protocols and standards, nor are they against capitalism or intellectual property, but they do wish to maintain a space for critique and the moral evaluation of contemporary capitalism and competition. +={intellectual property;infrastructure+4;public;recursive public;standards:Internet} + +% ,{[pg 77]}, + +2~ Polymaths and Transhumanists +={Polymaths:transhumanists vs.+55;Transhumanism:polymaths vs.+55} + +Usable pasts articulate the conjunction of "operating systems and social systems," giving narrative form to imaginations of moral and technical order. To say that there are no ready-to-narrate stories about contemporary political economy means only that the standard colloquial explanations of the state of the modern world do not do justice to the kinds of moral and technical imaginations of order that geeks possess by virtue of their practices. Geeks live in, and build, one kind of world—a world of software, networks, and infrastructures—but they are often confronted with stories and explanations that simply don’t match up with their experience, whether in newspapers and on television, or among nongeek friends. To many geeks, proselytization seems an obvious route: why not help friends and neighbors to understand the hidden world of networks and software, since, they are quite certain, it will come to structure their lives as well? +={moral and technical order;usable pasts} + +Geeks gather through the Internet and, like a self-governing people, possess nascent ideas of independence, contract, and constitution by which they wish to govern themselves and resist governance by others.~{ At a populist level, this was captured by John Perry Barlow’s "Declaration of Independence of the Internet," http://homes.eff.org/~barlow/Declaration-Final.html. }~ Conventional political philosophies like libertarianism, anarchism, and (neo)liberalism only partially capture these social imaginaries precisely because they make no reference to the operating systems, software, and networks within which geeks live, work, and in turn seek to build and extend. + +Geeks live in specific ways in time and space. They are not just users of technology, or a "network society," or a "virtual community," but embodied and imagining actors whose affinity for one another is enabled in new ways by the tools and technologies they have such deep affective connections to. They live in this-network-here, a historically unique form grounded in particular social, moral, national, and historical specificities which nonetheless relates to generalities such as progress, technology, infrastructure, and liberty. Geeks are by no means of one mind about such generalities though, and they often have highly developed means of thinking about them. +={affinity (of geeks);progress} + +Foucault’s article "What Is Enlightenment?" captures part of this problematic. For Foucault, Kant’s understanding of modernity was an attempt to rethink the relationship between the passage of historical time and the subjective relationship that individuals have toward it. +={enlightenment+3;Foucault, Michel+3;Kant, Immanuel+1;modernity+2} + +% ,{[pg 78]}, + +_1 Thinking back on Kant’s text, I wonder whether we may not envisage modernity as an attitude rather than as a period of history. And by "attitude," I mean a mode of relating to contemporary reality; a voluntary choice made by certain people; in the end, a way of thinking and feeling; a way, too, of acting and behaving that at one and the same time marks a relation of belonging and presents itself as a task. No doubt a bit like what the Greeks called an ethos. And consequently, rather than seeking to distinguish the "modern era" from the "premodern" or "postmodern," I think it would be more useful to try to find out how the attitude of modernity, ever since its formation, has found itself struggling with attitudes of "countermodernity."~{ Foucault, "What Is Enlightenment," 309-10. }~ + +In thinking through how geeks understand the present, the past, and the future, I pose the question of whether they are "modern" in this sense. Foucault makes use of Baudelaire as his foil for explaining in what the attitude of modernity consists: "For [Baudelaire,] being modern . . . consists in recapturing something eternal that is not beyond the present, or behind it, but within it."~{ Ibid., 310. }~ He suggests that Baudelaire’s understanding of modernity is "an attitude that makes it possible to grasp the ‘heroic’ aspect of the present moment . . . the will to ‘heroize’ the present."~{ Ibid., 310. }~ Heroic here means something like redescribing the seemingly fleeting events of the present in terms that conjure forth the universal or eternal character that animates them. In Foucault’s channeling of Baudelaire such an attitude is incommensurable with one that sees in the passage of the present into the future some version of autonomous progress (whether absolute spirit or decadent degeneration), and the tag he uses for this is "you have no right to despise the present." To be modern is to confront the present as a problem that can be transformed by human action, not as an inevitable outcome of processes beyond the scope of individual or collective human control, that is, "attitudes of counter-modernity." When geeks tell stories of the past to make sense of the future, it is often precisely in order to "heroize" the present in this sense—but not all geeks do so. Within the spectrum from polymath to transhumanist, there are attitudes of both modernity and countermodernity. +={geeks:as moderns} + +% ={Progress} + +The questions I raise here are also those of politics in a classical sense: Are the geeks I discuss bound by an attitude toward the present that concerns such things as the relationship of the public to the private and the social (à la Hannah Arendt), the relationship ,{[pg 79]}, of economics to liberty (à la John Stuart Mill and John Dewey), or the possibilities for rational organization of society through the application of scientific knowledge (à la Friedrich Hayek or Foucault)? Are geeks "enlightened"? Are they Enlightenment rationalists? What might this mean so long after the Enlightenment and its vigorous, wide-ranging critiques? How is their enlightenment related to the technical and infrastructural commitments they have made? Or, to put it differently, what makes enlightenment newly necessary now, in the milieu of the Internet, Free Software, and recursive publics? What kinds of relationships become apparent when one asks how these geeks relate their own conscious appreciation of the history and politics of their time to their everyday practices and commitments? Do geeks despise the present? +={Dewey, John;Mill, John Stuart;Hayek, Friedrich;time:technical progress and} + +Polymaths and transhumanists speak differently about concepts like technology, infrastructure, networks, and software, and they have different ideas about their temporality and relationship to progress and liberty. Some geeks see technology as one kind of intervention into a constituted field of organizations, money, politics, and people. Some see it as an autonomous force made up of humans and impersonal forces of evolution and complexity. Different geeks speak about the role of technology and its relationship to the present and future in different ways, and how they understand this relationship is related to their own rich understandings of the complex technical and political environment they live and work in. + +!_ Polymaths +Polymathy is "avowed dilettantism," not extreme intelligence. It results from a curiosity that seems to grip a remarkable number of people who spend their time on the Internet and from the basic necessity of being able to evaluate and incorporate sometimes quite disparate fields of knowledge in order to build workable software. Polymathy inevitably emerges in the context of large software and networking projects; it is a creature of constraints, a process bootstrapped by the complex sediment of technologies, businesses, people, money, and plans. It might also be posed in the negative: bad software design is often the result of not enough avowed dilettantism. Polymaths must know a very large and wide range of things in order to intervene in an existing distribution of machines, people, practices, and places. They must have a detailed sense of the present, and the project of the present, in order to imagine how the future might be different. +={software development+3} + +% ,{[pg 80]}, + +My favorite polymath is Sean Doyle. Sean built the first versions of a piece of software that forms the centerpiece of the radiological-image-management company Amicas. In order to build it Sean learned the following: Java, to program it; the mathematics of wavelets, to encode the images; the workflow of hospital radiologists and the manner in which they make diagnoses from images, to make the interface usable; several incompatible databases and the SQL database language, to build the archive and repository; and manual after manual of technical standards, the largest and most frightening of which was the Digital Imaging and Communication (DICOM) standard for radiological images. Sean also read Science and Nature regularly, looking for inspiration about interface design; he read books and articles about imaging very small things (mosquito knees), very large things (galaxies and interstellar dust), very old things (fossils), and very pretty things (butterfly-wing patterns as a function of developmental pathways). Sean also introduced me to Tibetan food, to Jan Svankmeyer films, to Open Source Software, to cladistics and paleoherpetology, to Disney’s scorched-earth policy with respect to culture, and to many other awesome things. +={Amicas (corporation)+17;Doyle, Sean+3;programming+3;standards} + +Sean is clearly an unusual character, but not that unusual. Over the years I have met many people with a similar range and depth of knowledge (though rarely with Sean’s humility, which does set him apart). Polymathy is an occupational hazard for geeks. There is no sense in which a good programmer, software architect, or information architect simply specializes in code. Specialization is seen not as an end in itself, but rather as a kind of technical prerequisite before other work—the real work—can be accomplished. The real work is the design, the process of inserting usable software into a completely unfamiliar amalgamation of people, organizations, machines, and practices. Design is hard work, whereas the technical stuff—like choosing the right language or adhering to a standard or finding a ready-made piece of code to plug in somewhere—is not. +={design+2} + +It is possible for Internet geeks and software architects to think this way in part due to the fact that so many of the technical issues they face are both extremely well defined and very easy to address with a quick search and download. It is easy to be an avowed dilettante in the age of mailing lists, newsgroups, and online scientific publishing. I myself have learned whole swaths of technical practices in this manner, but I have designed no technology of note. ,{[pg 81]}, + +Sean’s partner in Amicas, Adrian Gropper, also fits the bill of polymath, though he is not a programmer. Adrian, a physician and a graduate of MIT’s engineering program, might be called a "high-functioning polymath." He scans the horizon of technical and scientific accomplishments, looking for ways to incorporate them into his vision of medical technology qua intervention. Sean mockingly calls these "delusions," but both agree that Amicas would be nowhere without them. Adrian and Sean exemplify how the meanings of technology, intervention, design, and infrastructure are understood by polymaths as a particular form of pragmatic intervention, a progress achieved through deliberate, piecemeal re-formation of existing systems. As Adrian comments: +={entrepreneurialism+8;Gropper, Adrian+8;intervention, technology as+42} + +_1 I firmly believe that in the long run the only way you can save money and improve healthcare is to add technology. I believe that more strongly than I believe, for instance, that if people invent better pesticides they’ll be able to grow more rice, and it’s for the universal good of the world to be able to support more people. I have some doubt as to whether I support people doing genetic engineering of crops and pesticides as being "to the good." But I do, however, believe that healthcare is different in that in the long run you can impact both the cost and quality of healthcare by adding technology. And you can call that a religious belief if you want, it’s not rational. But I guess what I’m willing to say is that traditional healthcare that’s not technology-based has pretty much run out of steam.~{ Adrian Gropper, interview by author, 28 November 1998. }~ +={healthcare:information technology in+7;religion} + +In this conversation, the "technological" is restricted to the novel things that can make healthcare less costly (i.e., cost-reducing, not cost-cutting), ease suffering, or extend life. Certain kinds of technological intervention are either superfluous or even pointless, and Adrian can’t quite identify this "class"—it isn’t "technology" in general, but it includes some kinds of things that are technological. What is more important is that technology does not solve anything by itself; it does not obviate the political problems of healthcare rationing: "Now, however, you get this other problem, which is that the way that healthcare is rationed is through the fear of pain, financial pain to some extent, but physical pain; so if you have a technology that, for instance, makes it relatively painless to fix . . . I guess, bluntly put, it’s cheaper to let people die in most cases, and that’s just undeniable. So what I find interesting in all of this, is that most people who are dealing with the politics of healthcare ,{[pg 82]}, resource management don’t want to have this discussion, nobody wants to talk about this, the doctors don’t want to talk about it, because it’s too depressing to talk about the value of. . . . And they don’t really have a mandate to talk about technology."~{ Adrian Gropper, interview by author, 28 November 1998. }~ + +Adrian’s self-defined role in this arena is as a nonpracticing physician who is also an engineer and an entrepreneur—hence, his polymathy has emerged from his attempts to translate between doctors, engineers, and businesspeople. His goal is twofold: first, create technologies that save money and improve the allocation of healthcare (and the great dream of telemedicine concerns precisely this goal: the reallocation of the most valuable asset, individuals and their expertise); second, to raise the level of discussion in the business-cum-medical world about the role of technology in managing healthcare resources. Polymathy is essential, since Adrian’s twofold mission requires understanding the language and lives of at least three distinct groups who work elbow-to-elbow in healthcare: engineers and software architects; doctors and nurses; and businessmen. +={healthcare:allocation of+5} + +Technology has two different meanings according to Adrian’s two goals: in the first case technology refers to the intervention by means of new technologies (from software, to materials, to electronics, to pharmaceuticals) in specific healthcare situations wherein high costs or limited access to care can be affected. Sometimes technology is allocated, sometimes it does the allocating. Adrian’s goal is to match his knowledge of state-of-the-art technology—in particular, Internet technology—with a specific healthcare situation and thereby effect a reorganization of practices, people, tools, and information. The tool Amicas created was distinguished by its clever use of compression, Internet standards, and cheap storage media to compete with much larger, more expensive, much more entrenched "legacy" and "turnkey" systems. Whether Amicas invented something "new" is less interesting than the nature of this intervention into an existing milieu. This intervention is what Adrian calls "technology." For Amicas, the relevant technology—the important intervention—was the Internet, which Amicas conceived as a tool for changing the nature of the way healthcare was organized. Their goal was to replace the infrastructure of the hospital radiology department (and potentially the other departments as well) with the Internet. Amicas was able to confront and reform the practices of powerful, entrenched entities, from the administration of large ,{[pg 83]}, hospitals to their corporate bedfellows, like HBOC, Agfa, Siemens, and GE. +={technology:meanings of+7} + +With regard to raising the level of discussion, however, technology refers to a kind of political-rhetorical argument: technology does not save the world (nor does it destroy it); it only saves lives—and it does this only when one makes particular decisions about its allocation. Or, put differently, the means is technology, but the ends are still where the action is at. Thus, the hype surrounding information technology in healthcare is horrifying to Adrian: promises precede technologies, and the promises suggest that the means can replace the ends. Large corporations that promise "technology," but offer no real hard interventions (Adrian’s first meaning of technology) that can be concretely demonstrated to reduce costs or improve allocation are simply a waste of resources. Such companies are doubly frustrating because they use "technology" as a blinder that allows people to not think about the hard problems (the ends) of allocation, equity, management, and organization; that is, they treat "technology" (the means) as if it were a solution as such. + +Adrian routinely analyzes the rhetorical and practical uses of technology in healthcare with this kind of subtlety; clearly, such subtlety of thought is rare, and it sets Adrian apart as someone who understands that intervention into, and reform of, modern organizations and styles of thought has to happen through reformation—through the clever use of technology by people who understand it intimately—not through revolution. Reformation through technical innovation is opposed here to control through the consolidation of money and power. +={reformation vs. revolution} + +In my observations, Adrian always made a point of making the technology—the software tools and picture-archiving system—easily accessible, easily demonstrable to customers. When talking to hospital purchasers, he often said something like "I can show you the software, and I can tell you the price, and I can demonstrate the problem it will solve." In contrast, however, an array of enormous corporations with salesmen and women (usually called consultants) were probably saying something more like "Your hospital needs more technology, our corporation is big and stable—give us this much money and we will solve your problem." For Adrian, the decision to "hold hands," as he put it, with the comfortably large corporation was irrational if the hospital could instead purchase a specific technology that did a specific thing, for a real price. ,{[pg 84]}, + +Adrian’s reflections on technology are also reflections on the nature of progress. Progress is limited intervention structured by goals that are not set by the technology itself, even if entrepreneurial activity is specifically focused on finding new uses and new ideas for new technologies. But discussions about healthcare allocation—which Adrian sees as a problem amenable to certain kinds of technical solutions—are instead structured as if technology did not matter to the nature of the ends. It is a point Adrian resists: "I firmly believe that in the long run the only way you can save money and improve healthcare is to add technology." + +Sean is similarly frustrated by the homogenization of the concept of technology, especially when it is used to suggest, for instance, that hospitals "lag behind" other industries with regard to computerization, a complaint usually made in order to either instigate investment or explain failures. Sean first objects to such a homogenous notion of "technological." +={Doyle, Sean+5;Technology:lag+2;time: technical progress and+2;lag, technological+2} + +_1 I actually have no idea what that means, that it’s lagging behind. Because certainly in many ways in terms of image processing or some very high-tech things it’s probably way ahead. And if that means what’s on people’s desktops, ever since 19-maybe-84 or so when I arrived at MGH [Massachusetts General Hospital] there’s been a computer on pretty much everyone’s desktop. . . . It seems like most hospitals that I have been to seem to have a serious commitment to networks and automation, etcetera. . . . I don’t know about a lot of manufacturing industries—they might have computer consoles there, but it’s a different sort of animal. Farms probably lag really far behind, I won’t even talk about amusement parks. In some sense, hospitals are very complicated little communities, and so to say that this thing as a whole is lagging behind doesn’t make much sense.~{ Sean Doyle, interview by author, 30 March 1999. }~ + +He also objects to the notion that such a lag results in failures caused by technology, rather than by something like incompetence or bad management. In fact, it might be fair to say that, for the polymath, sometimes technology actually dissolves. Its boundaries are not easily drawn, nor are its uses, nor are its purported "unintended consequences." On one side there are rules, regulations, protocols, standards, norms, and forms of behavior; on the other there are organizational structures, business plans and logic, human skills, and other machines. This complex milieu requires reform from within: it cannot be replaced wholesale; it cannot leap-frog ,{[pg 85]}, other industries in terms of computerization, as intervention is always local and strategic; and it involves a more complex relationship to the project of the present than simply "lagging behind" or "leaping ahead." + +Polymathy—inasmuch as it is a polymathy of the lived experience of the necessity for multiple expertise to suit a situation—turns people into pragmatists. Technology is never simply a solution to a problem, but always part of a series of factors. The polymath, unlike the technophobe, can see when technology matters and when it doesn’t. The polymath has a very this-worldly approach to technology: there is neither mystery nor promise, only human ingenuity and error. In this manner, polymaths might better be described as Feyerabendians than as pragmatists (and, indeed, Sean turned out to be an avid reader of Feyerabend). The polymath feels there is no single method by which technology works its magic: it is highly dependent on rules, on patterned actions, and on the observation of contingent and contextual factors. Intervention into this already instituted field of people, machines, tools, desires, and beliefs requires a kind of scientific-technical genius, but it is hardly single, or even autonomous. This version of pragmatism is, as Feyerabend sometimes refers to it, simply a kind of awareness: of standards, of rules, of history, of possibility.~{ Feyerabend, Against Method, 215-25. }~ The polymath thus does not allow himself or herself to despise the present, but insists on both reflecting on it and intervening in it. +={Feyerabend, Paul+1;pragmatism} + +Sean and Adrian are avowedly scientific and technical people; like Feyerabend, they assume that their interlocutors believe in good science and the benefits of progress. They have little patience for Luddites, for new-agers, for religious intolerance, or for any other non-Enlightenment-derived attitude. They do not despise the present, because they have a well-developed sense of how provisional the conventions of modern technology and business are. Very little is sacred, and rules, when they exist, are fragile. Breaking them pointlessly is immodest, but innovation is often itself seen as a way of transforming a set of accepted rules or practices to other ends. Progress is limited intervention.~{ One of the ways Adrian discusses innovation is via the argument of the Harvard Business School professor Clayton Christensen’s The Innovator’s Dilemma. It describes "sustaining vs. disruptive" technologies as less an issue of how technologies work or what they are made of, and more an issue of how their success and performance are measured. See Adrian Gropper, "The Internet as a Disruptive Technology," Imaging Economics, December 2001, http://www.imagingeconomics.com/library/200112-10.asp (accessed 19 September 2006). }~ +={enlightenment+1} + +How ironic, and troubling, then, to realize that Sean’s and Adrian’s company would eventually become the kind of thing they started Amicas in order to reform. Outside of the limited intervention, certain kinds of momentum seem irresistible: the demand for investment and funding rounds, the need for "professional management," ,{[pg 86]}, and the inertia of already streamlined and highly conservative purchasing practices in healthcare. For Sean and Adrian, Amicas became a failure in its success. Nonetheless, they remain resolutely modern polymaths: they do not despise the present. As described in Kant’s "What Is Enlightenment?" the duty of the citizen is broken into public and private: on the one hand, a duty to carry out the responsibilities of an office; on the other, a duty to offer criticism where criticism is due, as a "scholar" in a reading public. Sean’s and Adrian’s endeavor, in the form of a private start-up company, might well be understood as the expression of the scholar’s duty to offer criticism, through the creation of a particular kind of technical critique of an existing (and by their assessment) ethically suspect healthcare system. The mixture of private capital, public institutions, citizenship, and technology, however, is something Kant could not have known—and Sean and Adrian’s technical pursuits must be understood as something more: a kind of modern civic duty, in the service of liberty and responding to the particularities of contemporary technical life.~{ On kinds of civic duty, see Fortun and Fortun, "Scientific Imaginaries and Ethical Plateaus in Contemporary U.S. Toxicology." }~ +={Kant, Immanuel} + +!_ Transhumanists +Polymathy is born of practical and pragmatic engagement with specific situations, and in some ways is demanded by such exigencies. Opposite polymathy, however, and leaning more toward a concern with the whole, with totality and the universal, are attitudes that I refer to by the label transhumanism, which concerns the mode of belief in the Timeline of Technical Progress.~{ There is, in fact, a very specific group of people called transhumanists, about whom I will say very little. I invoke the label here because I think certain aspects of transhumanism are present across the spectrum of engineers, scientists, and geeks. }~ +={time:technical progress and+20;futurology+20} + +Transhumanism, the movement and the philosophy, focuses on the power of technology to transcend the limitations of the human body as currently evolved. Subscribers believe—but already this is the wrong word—in the possibility of downloading consciousness onto silicon, of cryobiological suspension, of the near emergence of strong artificial intelligence and of various other forms of technical augmentation of the human body for the purposes of achieving immortality—or at least, much more life.~{ See the World Transhumanist Association, http://transhumanism.org/ (accessed 1 December 2003) or the Extropy Institute, http://www.extropy.org/ (accessed 1 December 2003). See also Doyle, Wetwares, and Battaglia, "For Those Who Are Not Afraid of the Future," for a sidelong glance. }~ +={artificial intelligence+6} + +Various groups could be reasonably included under this label. There are the most ardent purveyors of the vision, the Extropians; there are a broad class of people who call themselves transhumanists; there is a French-Canadian subclass, the Raelians, who are more an alien-worshiping cult than a strictly scientific one and are bitterly denounced by the first two; there are also the variety of cosmologists and engineers who do not formally consider themselves ,{[pg 87]}, transhumanist, but whose beliefs participate in some way or another: Stephen Hawking, Frank Tipler and John Barrow (famous for their anthropic cosmological principle), Hans Moravic, Ray Kurzweil, Danny Hillis, and down the line through those who embrace the cognitive sciences, the philosophy of artificial intelligence, the philosophy of mind, the philosophy of science, and so forth. +={Extropians;Raelians} + +Historically speaking, the line of descent is diffuse. Teilhard de Chardin is broadly influential, sometimes acknowledged, sometimes not (depending on the amount of mysticism allowed). A more generally recognized starting point is Julian Huxley’s article "Transhumanism" in New Bottles for New Wine.~{ Huxley, New Bottles for New Wine, 13-18. }~ Huxley’s transhumanism, like Teilhard’s, has a strange whiff of Nietzsche about it, though it tends much more strongly in the direction of the evolutionary emergence of the superman than in the more properly moral sense Nietzsche gave it. After Huxley, the notion of transhumanism is too easily identified with eugenics, and it has become one of a series of midcentury subcultural currents which finds expression largely in small, non-mainstream places, from the libertarians to Esalen.~{ The computer scientist Bill Joy wrote a long piece in Wired warning of the outcomes of research conducted without ethical safeguards and the dangers of eugenics in the past, "Why the Future Doesn’t Need Us," Wired 8.4 [April 2000], http://www.wired.com/wired/archive/8.04/joy.html (accessed 27 June 2005). }~ +={Huxley, Julian;Teilhard de Chardin, Pierre;transhumanism: Julian Huxley and} + +For many observers, transhumanists are a lunatic fringe, bounded on either side by alien abductees and Ayn Rand-spouting objectivists. However, like so much of the fringe, it merely represents in crystalline form attitudes that seem to permeate discussions more broadly, whether as beliefs professed or as beliefs attributed. Transhumanism, while probably anathema to most people, actually reveals a very specific attitude toward technical innovation, technical intervention, and political life that is widespread among technically adept individuals. It is a belief that has everything to do also with the timeline of progress and the role of technology in it. +={progress+5} + +The transhumanist understanding of technological progress can best be understood through the sometimes serious and sometimes playful concept of the "singularity," popularized by the science-fiction writer and mathematician Vernor Vinge.~{ Vinge, "The Coming Technological Singularity." }~ The "singularity" is the point at which the speed of technical progress is faster than human comprehension of that progress (and, by implication, than human control over the course). It is a kind of cave-man parable, perhaps most beautifully rendered by Stanley Kubrik’s film 2001: A Space Odyssey (in particular, in the jump-cut early in the film that turns a hurled bone into a spinning space station, recapitulating the remarkable adventure of technology in two short seconds of an otherwise seemingly endless film). +={singularity+9;transhumanism:singularity and+4;time:singularity and+4;Vinge, Vernor} + +% ,{[pg 88]}, + +{ 2bits_02_01-100.png }image ~[* Illustration © 2005 Ray Kurzweil. Modifications © 2007 by C. Kelty. Original work licensed under a Creative Commons Attribution License: http://en.wikipedia.org/wiki/Image:PPTCountdowntoSingularityLog.jpg. ]~ + +In figure 1, on the left hand of the timeline, there is history, or rather, there is a string of technological inventions (by which is implied that previous inventions set the stage for later ones) spaced such that they produce a logarithmic curve that can look very much like the doomsday population curves that started to appear in the 1960s. Each invention is associated with a name or sometimes a nation. Beyond the edge of the graph to the right side is the future: history changes here from a series of inventions to an autonomous self-inventing technology associated not with individual inventors but with a complex system of evolutionary adaptation that includes technological as well as biological forms. It is a future in which "humans" are no longer necessary to the progress of science and technology: technology-as-extension-of-humans on the left, a Borg-like autonomous technical intelligence on the right. The fundamental ,{[pg 89]}, operation in constructing the "singularity" is the "reasoned extrapolation" familiar to the "hard science fiction" writer or the futurist. One takes present technology as the initial condition for future possibilities and extrapolates based on the (haphazardly handled) evidence of past technical speed-up and change. + +The position of the observer is always a bit uncertain, since he or she is naturally projected at the highest (or lowest, depending on your orientation) point of this curve, but one implication is clear: that the function or necessity of human reflection on the present will disappear at the same time that humans do, rendering enlightenment a quaint, but necessary, step on the route to superrational, transhuman immortality. + +Strangely, the notion that technical progress has acceleration seems to precede any sense of what the velocity of progress might mean in the first instance; technology is presumed to exist in absolute time—from the Big Bang to the heat death of the universe—and not in any relationship with human life or consciousness. The singularity is always described from the point of view of a god who is not God. The fact of technological speed-up is generally treated as the most obvious thing in the world, reinforced by the constant refrain in the media of the incredible pace of change in contemporary society. + +Why is the singularity important? Because it always implies that the absolute fact of technical acceleration—this knowing glance into the future—should order the kinds of interventions that occur in the present. It is not mute waiting or eschatological certainty that governs this attitude; rather, it is a mode of historical consciousness that privileges the inevitability of technological progress over the inevitability of human power. Only by looking into the future can one manipulate the present in a way that will be widely meaningful, an attitude that could be expressed as something like "Those who do not learn from the future are condemned to suffer in it." Since it is a philosophy based on the success of human rationality and ingenuity, rationality and ingenuity are still clearly essential in the future. They lead, however, to a kind of posthuman state of constant technological becoming which is inconceivable to the individual human mind—and can only be comprehended by a transcendental intelligence that is not God. + +Such is a fair description of some strands of transhumanism, and the reason I highlight them is to characterize the kinds of attitudes ,{[pg 90]}, toward technology-as-intervention and the ideas of moral and technical order that geeks can evince. On the far side of polymathy, geeks are too close to the machine to see a big picture or to think about imponderable philosophical issues; on the transhuman side, by contrast, one is constantly reassessing the arcane details of everyday technical change with respect to a vision of the whole—a vision of the evolution of technology and its relationship to the humans that (for the time being) must create and attempt to channel it. +={moral and technical order} + +My favorite transhumanist is Eugen Leitl (who is, in fact, an authentic transhumanist and has been vice-chair of the World Transhumanist Association). Eugen is Russian-born, lives in Munich, and once worked in a cryobiology research lab. He is well versed in chemistry, nanotechnology, artificial-intelligence (AI) research, computational- and network-complexity research, artificial organs, cryobiology, materials engineering, and science fiction. He writes, for example, +={artificial intelligence;Leitl, Eugene+8} + +_1 If you consider AI handcoded by humans, yes. However, given considerable computational resources (~cubic meter of computronium), and using suitable start population, you can coevolve machine intelligence on a time scale of much less than a year. After it achieves about a human level, it is potentially capable of entering an autofeedback loop. Given that even autoassembly-grade computronium is capable of running a human-grade intellect in a volume ranging from a sugar cube to an orange at a speed ranging from 10^4 . . . 10^6 it is easy to see that the autofeedback loop has explosive dynamics. + +_1 (I hope above is intelligible, I’ve been exposed to weird memes for far too long).~{ Eugen Leitl, e-mail to Silk-list mailing list, 16 May 2000, http://groups.yahoo.com/group/silk-list/message/2410. }~ + +Eugen is also a polymath (and an autodidact to boot), but in the conventional sense. Eugen’s polymathy is an avocational necessity: transhumanists need to keep up with all advances in technology and science in order to better assess what kinds of human-augmenting or human-obsolescing technologies are out there. It is not for work in this world that the transhumanist expands his or her knowledge, nor quite for the next, but for a "this world" yet to arrive. + +Eugen and I were introduced during the Napster debates of 2001, which seemed at the time to be a knock-down, drag-out conflagration, but Eugen has been involved in so many online flame wars that he probably experienced it as a mere blip in an otherwise constant struggle with less-evolved intelligences like mine. Nonetheless, ,{[pg 91]}, it was one of the more clarifying examples of how geeks think, and think differently, about technology, infrastructure, networks, and software. Transhumanism has no truck with old-fashioned humanism. +={Napster} + +group{ + + > >From: Ramu Narayan . . . + > >I don’t like the + > >notion of technology as an unstoppable force with a will of its own that + > >has nothing to do with the needs of real people. + +}group + +_1 [Eugen Leitl:] Emergent large-scale behaviour is nothing new. How do you intend to control individual behaviour of a large population of only partially rational agents? They don’t come with too many convenient behaviour-modifying hooks (pheromones as in social insects, but notice menarche-synch in females sharing quarters), and for a good reason. The few hooks we have (mob, war, politics, religion) have been notoriously abused, already. Analogous to apoptosis, metaindividuals may function using processes deletorious[sic] to its components (us).~{ Eugen Leitl, e-mail to Silk-list mailing list, 7 August 2000, http://groups.yahoo.com/group/silk-list/message/2932. }~ +={gender} + +Eugen’s understanding of what "technological progress" means is sufficiently complex to confound most of his interlocutors. For one surprising thing, it is not exactly inevitable. The manner in which Leitl argues with people is usually a kind of machine-gun prattle of coevolutionary, game-theoretic, cryptographic sorites. Eugen piles on the scientific and transhumanist reasoning, and his interlocutors slowly peel away from the discussion. But it isn’t craziness, hype, or half-digested popular science—Eugen generally knows his stuff—it just fits together in a way that almost no one else can quite grasp. Eugen sees the large-scale adoption and proliferation of technologies (particularly self-replicating molecular devices and evolutionary software algorithms) as a danger that transcends all possibility of control at the individual or state level. Billions of individual decisions do not "average" into one will, but instead produce complex dynamics and hang perilously on initial conditions. In discussing the possibility of the singularity, Eugen suggests, "It could literally be a science-fair project [that causes the singularity]." If Francis Bacon’s understanding of the relation between Man and Nature was that of master and possessor, Eugen’s is its radicalization: Man is a powerful but ultimately arbitrary force in the progress of Life-Intelligence. Man is fully incorporated into Nature in this story, ,{[pg 92]}, so much so that he dissolves into it. Eugen writes, when "life crosses over into this petri dish which is getting readied, things will become a lot more lively. . . . I hope we’ll make it." +={progress+7;time:initial conditions and+1;geeks: as moderns+3} + +% check "geeks as moderns, problem pinpointing + +For Eugen, the arguments about technology that the polymaths involve themselves in couldn’t be more parochial. They are important only insofar as they will set the "initial conditions" for the grand coevolutionary adventure of technology ahead of us. For the transhumanist, technology does not dissolve. Instead, it is the solution within which humans are dissolved. Suffering, allocation, decision making—all these are inessential to the ultimate outcome of technological progress; they are worldly affairs, even if they concern life and death, and as such, they can be either denounced or supported, but only with respect to fine-tuning the acceleration toward the singularity. For the transhumanist, one can’t fight the inevitability of technical evolution, but one certainly can contribute to it. Technical progress is thus both law-like and subject to intelligent manipulation; technical progress is inevitable, but only because of the power of massively parallel human curiosity. +={technology:as argument+1;usable pasts+6} + +% check on usable pasts, appears in conclusion + +Considered as one of the modes of thought present in this-worldly political discussion, the transhumanist (like the polymath) turns technology into a rhetorical argument. Technology is the more powerful political argument because "it works." It is pointless to argue "about" technology, but not pointless to argue through and with it. It is pointless to talk about whether stopping technology is good or bad, because someone will simply build a technology that will invalidate your argument. + +There is still a role for technical invention, but it is strongly distinguished from political, legal, cultural, or social interventions. For most transhumanists, there is no rhetoric here, no sophistry, just the pure truth of "it works": the pure, undeniable, unstoppable, and undeconstructable reality of technology. For the transhumanist attitude, the reality of "working code" has a reality that other assertions about the world do not. Extreme transhumanism replaces the life-world with the world of the computer, where bad (ethically bad) ideas won’t compile. Less-staunch versions of transhumanism simply allow the confusion to operate opportunistically: the progress of technology is unquestionable (omniscient), and only its effects on humans are worth investigating. + +The pure transhumanist, then, is a countermodern. The transhumanist despises the present for its intolerably slow descent into the ,{[pg 93]}, future of immortality and superhuman self-improvement, and fears destruction because of too much turbulent (and ignorant) human resistance. One need have no individual conception of the present, no reflection on or synthetic understanding of it. One only need contribute to it correctly. One might even go so far as to suggest that forms of reflection on the present that do not contribute to technical progress endanger the very future of life-intelligence. Curiosity and technical innovation are not historical features of Western science, but natural features of a human animal that has created its own conditions for development. Thus, the transhumanists’ historical consciousness consists largely of a timeline that makes ordered sense of our place on the progress toward the Singularity. + +The moral of the story is not just that technology determines history, however. Transhumanism is a radically antihumanist position in which human agency or will—if it even exists—is not ontologically distinct from the agency of machines and animals and life itself. Even if it is necessary to organize, do things, make choices, participate, build, hack, innovate, this does not amount to a belief in the ability of humans to control their destiny, individually or collectively. In the end, the transhumanist cannot quite pinpoint exactly what part of this story is inevitable—except perhaps the story itself. Technology does not develop without millions of distributed humans contributing to it; humans cannot evolve without the explicit human adoption of life-altering and identity-altering technologies; evolution cannot become inevitable without the manipulation of environments and struggles for fitness. As in the dilemma of Calvinism (wherein one cannot know if one is saved by one’s good works), the transhumanist must still create technology according to the particular and parochial demands of the day, but this by no means determines the eventual outcome of technological progress. It is a sentiment well articulated by Adam Ferguson and highlighted repeatedly by Friederich Hayek with respect to human society: "the result of human action, but not the execution of any human design."~{ Friedrich A. Hayek, Law, Legislation and Liberty, 1:20. }~ +={Calvinism;Hayek, Friedrich} + +2~ Conclusion + +To many observers, geeks exhibit a perhaps bewildering mix of liberalism, libertarianism, anarchism, idealism, and pragmatism, ,{[pg 94]}, yet tend to fall firmly into one or another constituted political category (liberal, conservative, socialist, capitalist, neoliberal, etc.). By showing how geeks make use of the Protestant Reformation as a usable past and how they occupy a spectrum of beliefs about progress, liberty, and intervention, I hope to resist this urge to classify. Geeks are an interesting case precisely because they are involved in the creation of new things that change the meaning of our constituted political categories. Their politics are mixed up and combined with the technical details of the Internet, Free Software, and the various and sundry organizations, laws, people, and practices that they deal with on a regular basis: operating systems and social systems. But such mixing does not make Geeks merely technoliberals or technoconservatives. Rather, it reveals how they think through the specific, historically unique situation of the Internet to the general problems of knowledge and power, liberty and enlightenment, progress and intervention. +={allegory, of Protestant Reformation;geeks+1} + +Geeks are not a kind of person: geeks are geeks only insofar as they come together in new, technically mediated forms of their own creation and in ways that are not easy to identify (not language, not culture, not markets, not nations, not telephone books or databases). While their affinity is very clearly constituted through the Internet, the Internet is not the only reason for that affinity. It is this collective affinity that I refer to as a recursive public. Because it is impossible to understand this affinity by trying to identify particular types of people, it is necessary to turn to historically specific sets of practices that form the substance of their affinity. Free Software is an exemplary case—perhaps the exemplar—of a recursive public. To understand Free Software through its changing practices not only gives better access to the life-world of the geek but also reveals how the structure of a recursive public comes into being and manages to persist and transform, how it can become a powerful form of life that extends its affinities beyond technophile geeks into the realms of ordinary life. +={affinity (of geeks)} + +:B~ Part II free software + +1~ 3. The Movement +={Free Software+55} + +Part II of Two Bits describes what Free Software is and where it came from, with each of its five chapters detailing the historical narrative of a particular kind of practice: creating a movement, sharing source code, conceptualizing openness or open systems, writing copyright (and copyleft) licenses, and coordinating collaborations. Taken together, the stories describe Free Software. The stories have their endpoint (or starting point, genealogically speaking) in the years 1998-99, when Free Software burst onto the scene: on the cover of Forbes magazine, as part of the dotcom boom, and in the boardrooms of venture-capital firms and corporations like IBM and Netscape. While the chapters that make up part II can be read discretely to understand the practices that are the sine qua non of Free Software, they can also be read continuously, as a meandering story of the history of software and networks stretching from the late 1950s to the present. +={Free Software: as experimental system+1;movement (component of Free Software)+3;practices:five components of Free Software} + +% ,{[pg 98]}, + +Rather than define what makes Free Software free or Open Source open, Two Bits treats the five practices as parts of a collective technical experimental system: each component has its own history, development, and temporality, but they come together as a package and emerge as a recognizable thing around 1998-99. As with any experimental system, changing the components changes the operation and outcomes of the whole. Free Software so conceived is a kind of experimental system: its practices can be adopted, adapted, and modulated in new contexts and new places, but it is one whose rules are collectively determined and frequently modified. It is possible to see in each of the five practices where choices about how to do Free Software reached, or surpassed, certain limits, but nonetheless remained part of a system whose identity finally firmed up in the period 1998-99 and after. +={experiment, collective technical} + +The first of these practices—the making of Free Software into a movement—is both the most immediately obvious and the most difficult to grasp. By the term movement I refer to the practice, among geeks, of arguing about and discussing the structure and meaning of Free Software: what it consists of, what it is for, and whether or not it is a movement. Some geeks call Free Software a movement, and some don’t; some talk about the ideology and goals of Free Software, and some don’t; some call it Free Software, while others call it Open Source. Amid all this argument, however, Free Software geeks recognize that they are all doing the same thing: the practice of creating a movement is the practice of talking about the meaning and necessity of the other four practices. It was in 1998-99 that geeks came to recognize that they were all doing the same thing and, almost immediately, to argue about why.~{ For instance, Richard Stallman writes, "The Free Software movement and the Open Source movement are like two political camps within the free software community. Radical groups in the 1960s developed a reputation for factionalism: organizations split because of disagreements on details of strategy, and then treated each other as enemies. Or at least, such is the ,{[pg 322]}, image people have of them, whether or not it was true. The relationship between the Free Software movement and the Open Source movement is just the opposite of that picture. We disagree on the basic principles, but agree more or less on the practical recommendations. So we can and do work together on many specific projects. We don’t think of the Open Source movement as an enemy. The enemy is proprietary software" ("Why ‘Free Software’ Is Better than ‘Open Source,’" GNU’s Not Unix! http://www.gnu.org/philosophy/free-software-for-freedom.html [accessed 9 July 2006]). By contrast, the Open Source Initiative characterizes the relationship as follows: "How is ‘open source’ related to ‘free software’? The Open Source Initiative is a marketing program for free software. It’s a pitch for ‘free software’ because it works, not because it’s the only right thing to do. We’re selling freedom on its merits" (http://www.opensource.org/advocacy/faq.php [accessed 9 July 2006]). There are a large number of definitions of Free Software: canonical definitions include Richard Stallman’s writings on the Free Software Foundation’s Web site, www.fsf.org, including the "Free Software Definition" and "Confusing Words and Phrases that Are Worth Avoiding." From the Open Source side there is the "Open Source Definition" (http://www.opensource.org/licenses/). Unaffiliated definitions can be found at www.freedomdefined.org. }~ + +One way to understand the movement is through the story of Netscape and the Mozilla Web browser (now known as Firefox). Not only does this story provide some context for the stories of geeks presented in part I—and I move here from direct participant observation to historical and archival research on a phenomenon that was occurring at roughly the same time—but it also contains all the elements necessary to understand Free Software. It is full of discussion and argument about the practices that make up Free Software: sharing source code, conceiving of openness, writing licenses, and coordinating collaborations. +={Firefox;Netscape+26;Netscape Navigator (application)+26} + +% ,{[pg 99]}, + +2~ Forking Free Software, 1997-2000 + +Free Software forked in 1998 when the term Open Source suddenly appeared (a term previously used only by the CIA to refer to unclassified sources of intelligence). The two terms resulted in two separate kinds of narratives: the first, regarding Free Software, stretched back into the 1980s, promoting software freedom and resistance to proprietary software "hoarding," as Richard Stallman, the head of the Free Software Foundation, refers to it; the second, regarding Open Source, was associated with the dotcom boom and the evangelism of the libertarian pro-business hacker Eric Raymond, who focused on the economic value and cost savings that Open Source Software represented, including the pragmatic (and polymathic) approach that governed the everyday use of Free Software in some of the largest online start-ups (Amazon, Yahoo!, HotWired, and others all "promoted" Free Software by using it to run their shops). +={Free Software:open source vs.+1;Free Software Foundation+1;Open Source:Free Software vs.;Raymond, Eric Steven;Stallman, Richard+1} + +A critical point in the emergence of Free Software occurred in 1998-99: new names, new narratives, but also new wealth and new stakes. "Open Source" was premised on dotcom promises of cost-cutting and "disintermediation" and various other schemes to make money on it (Cygnus Solutions, an early Free Software company, playfully tagged itself as "Making Free Software More Affordable"). VA Linux, for instance, which sold personal-computer systems pre-installed with Open Source operating systems, had the largest single initial public offering (IPO) of the stock-market bubble, seeing a 700 percent share-price increase in one day. "Free Software" by contrast fanned kindling flames of worry over intellectual-property expansionism and hitched itself to a nascent legal resistance to the 1998 Digital Millennium Copyright Act and Sonny Bono Copyright Term Extension Act. Prior to 1998, Free Software referred either to the Free Software Foundation (and the watchful, micromanaging eye of Stallman) or to one of thousands of different commercial, avocational, or university-research projects, processes, licenses, and ideologies that had a variety of names: sourceware, freeware, shareware, open software, public domain software, and so on. The term Open Source, by contrast, sought to encompass them all in one movement. +={Cygnus Solutions (corporation);Digital Millennium Copyright Act (DMCA);intellectual property;VA Linux (corporation)} + +The event that precipitated this attempted semantic coup d’état was the release of the source code for Netscape’s Communicator ,{[pg 100]}, Web browser. It’s tough to overestimate the importance of Netscape to the fortunes of Free Software. Netscape is justly famous for its 1995 IPO and its decision to offer its core product, Netscape Navigator, for free (meaning a compiled, binary version could be downloaded and installed "for zero dollars"). But Netscape is far more famous among geeks for giving away something else, in 1998: the source code to Netscape Communicator (née Navigator). Giving away the Navigator application endeared Netscape to customers and confused investors. Giving away the Communicator source code in 1998 endeared Netscape to geeks and confused investors; it was ignored by customers. +={geeks+3} + +Netscape is important from a number of perspectives. Businesspeople and investors knew Netscape as the pet project of the successful businessman Jim Clarke, who had founded the specialty computer manufacturer, Silicon Graphics Incorporated (SGI). To computer scientists and engineers, especially in the small university town of Champaign-Urbana, Illinois, Netscape was known as the highest bidder for the WWW team at the National Center for Supercomputing Applications (NCSA) at the University of Illinois. That team—Marc Andreessen, Rob McCool, Eric Bina, Jon Mittelhauser, Aleks Totic, and Chris Houck—had created Mosaic, the first and most fondly remembered "graphical browser" for surfing the World Wide Web. Netscape was thus first known as Mosaic Communications Corporation and switched its name only after legal threats from NCSA and a rival firm, Spyglass. Among geeks, Netscape was known as home to a number of Free Software hackers and advocates, most notably Jamie Zawinski, who had rather flamboyantly broken rank with the Free Software Foundation by forking the GNU EMACS code to create what was first known as Lucid Emacs and later as XEmacs. Zawinski would go on to lead the newly free Netscape browser project, now known as Mozilla. +={Andreessen, Marc+3;McCool, Rob;Mosaic (web browser)+3;Mozilla+23;National Center for Super Computing Applications (NCSA)+3;Zawinski, Jamie+5} + +Meanwhile, most regular computer users remember Netscape both as an emblem of the dotcom boom’s venture-fed insanity and as yet another of Microsoft’s victims. Although Netscape exploded onto the scene in 1995, offering a feature-rich browser that was an alternative to the bare-bones Mosaic browser, it soon began to lose ground to Microsoft, which relatively quickly adopted the strategy of giving away its browser, Internet Explorer, as if it were part of the Windows operating system; this was a practice that the U.S. Department of Justice eventually found to be in violation of ,{[pg 101]}, antitrust laws and for which Microsoft was convicted, but never punished. +={Justice, Department of;Microsoft:Internet Explorer+1} + +The nature of Netscape’s decision to release the source code differs based on which perspective it is seen from. It could appear to be a business plan modeled on the original success: give away your product and make money in the stock market. It could appear to be a strategic, last-gasp effort to outcompete Microsoft. It could also appear, and did appear to many geeks, to be an attempt to regain some of that "hacker-cred" it once had acquired by poaching the NCSA team, or even to be an attempt to "do the right thing" by making one of the world’s most useful tools into Free Software. But why would Netscape reach such a conclusion? By what reasoning would such a decision seem to be correct? The reasons for Netscape’s decision to "free the source" recapitulate the five core practices of Free Software—and provided key momentum for the new movement. + +!_ Sharing Source Code +Netscape’s decision to share its source code could only seem surprising in the context of the widespread practice of keeping source code secret; secrecy was a practice followed largely in order to prevent competitors from copying a program and competing with it, but also as a means to control the market itself. The World Wide Web that Andreessen’s team at NCSA had cut their teeth on was itself designed to be "platform independent" and accessible by any device on the network. In practice, however, this meant that someone needed to create "browsers" for each different computer or device. Mosaic was initially created for UNIX, using the Motif library of the X11 Window System—in short, a very specific kind of access. Netscape, by contrast, prided itself on "porting" Netscape Navigator to nearly all available computer architectures. Indeed, by 1997, plans were under way to create a version of the browser—written in Java, the programming language created by Sun Microsystems to "write once, run anywhere"—that would be completely platform independent. +={secrecy+6;Sun Microsystems;World Wide Web (www)} + +The Java-based Navigator (called Javagator, of course) created a problem, however, with respect to the practice of keeping source code secret. Whenever a program in Java was run, it created a set of "bytecodes" that were easy to reverse-engineer because they had to be transmitted from the server to the machine that ran the program and were thus visible to anyone who might know how and where to look. Netscape engineers flirted with the idea of deliberately ,{[pg 102]}, obfuscating these bytecodes to deter competitors from copying them. How can one compete, the logic goes, if anyone can copy your program and make their own ersatz version? + +Zawinski, among others, suggested that this was a bad idea: why not just share the source code and get people to help make it better? As a longtime participant in Free Software, Zawinski understood the potential benefits of receiving help from a huge pool of potential contributors. He urged his peers at Netscape to see the light. However, although he told them stories and showed them successes, he could never make the case that this was an intelligent business plan, only that it was an efficient software-engineering plan. From the perspective of management and investors, such a move seemed tantamount to simply giving away the intellectual property of the company itself. +={intellectual property} + +Frank Hecker, a sales manager, made the link between the developers and management: "It was obvious to [developers] why it was important. It wasn’t really clear from a senior management level why releasing the source code could be of use because nobody ever made the business case."~{ Moody, Rebel Code, 193. }~ Hecker penned a document called "Netscape Source Code as Netscape Product" and circulated it to various people, including Andreessen and Netscape CEO Jim Barksdale. As the title suggests, the business case was that the source code could also be a product, and in the context of Netscape, whose business model was "give it away and make it up on the stock market," such a proposal seemed less insane than it otherwise might have: "When Netscape first made Navigator available for unrestricted download over the Internet, many saw this as flying in the face of conventional wisdom for the commercial software business, and questioned how we could possibly make money ‘giving our software away.’ Now of course this strategy is seen in retrospect as a successful innovation that was a key factor in Netscape’s rapid growth, and rare is the software company today that does not emulate our strategy in one way or another. Among other things, this provokes the following question: What if we were to repeat this scenario, only this time with source code?"~{ Frank Hecker, quoted in Hamerly and Paquin, "Freeing the Source," 198. }~ +={Hecker, Frank+1} + +Under the influence of Hecker, Zawinski, and CTO Eric Hahn (who had also written various internal "heresy documents" suggesting similar approaches), Netscape eventually made the decision to share their source code with the outside world, a decision that resulted in a famous January 1998 press release describing the aims ,{[pg 103]}, and benefits of doing so. The decision, at that particular point in Netscape’s life, and in the midst of the dotcom boom, was certainly momentous, but it did not lead either to a financial windfall or to a suddenly superior product.~{ See Moody, Rebel Code, chap. 11, for a more detailed version of the story. }~ +={Hahn, Eric} + +!_ Conceptualizing Open Systems +Releasing the source code was, in a way, an attempt to regain the trust of the people who had first imagined the www. Tim Berners-Lee, the initial architect of the www, was always adamant that the protocol and all its implementations should be freely available (meaning either "in the public domain" or "released as Free Software"). Indeed, Berners-Lee had done just that with his first bare-bones implementations of the www, proudly declaring them to be in the public domain. +={Berners-Lee, Tim+1;Open Systems+2;public domain;World Wide Web (www)} + +Over the course of the 1990s, the "browser wars" caused both Netscape and Microsoft to stray far from this vision: each had implemented its own extensions and "features" to the browsers and servers, extensions not present in the protocol that Berners-Lee had created or in the subsequent standards created by the World Wide Web Consortium (W3C). Included in the implementations were various kinds of "evil" that could make browsers fail to work on certain operating systems or with certain kinds of servers. The "browser wars" repeated an open-systems battle from the 1980s, one in which the attempt to standardize a network operating system (UNIX) was stymied by competition and secrecy, at the same time that consortiums devoted to "openness" were forming in order to try to prevent the spread of evil. Despite the fact that both Microsoft and Netscape were members of the W3C, the noncompatibility of their browsers clearly represented the manipulation of the standards process in the name of competitive advantage. +={evil;Microsoft;World Wide Web consortium (w3c);standards: ownership of} + +Releasing the source code for Communicator was thus widely seen as perhaps the only way to bypass the poisoned well of competitively tangled, nonstandard browser implementations. An Open Source browser could be made to comply with the standards—if not by the immediate members involved with its creation, then by creating a "fork" of the program that was standards compliant—because of the rights of redistribution associated with an Open Source license. Open Source would be the solution to an open-systems problem that had never been solved because it had never confronted the issue of intellectual property directly. Free Software, by contrast, had a well-developed solution in the GNU General Public License, ,{[pg 104]}, also known as copyleft license, that would allow the software to remain free and revive hope for maintaining open standards. +={Copyleft licenses (component of Free Software)+4;General Public License (GPL)+3;intellectual property} + +!_ Writing Licenses +Herein lies the rub, however: Netscape was immediately embroiled in controversy among Free Software hackers because it chose to write its own bespoke licenses for distributing the source code. Rather than rely on one of the existing licenses, such as the GNU GPL or the Berkeley Systems Distribution (BSD) or MIT licenses, they created their own: the Netscape Public License (NPL) and the Mozilla Public License. The immediate concerns of Netscape had to do with their existing network of contracts and agreements with other, third-party developers—both those who had in the past contributed parts of the existing source code that Netscape might not have the rights to redistribute as Free Software, and those who were expecting in the future to buy and redistribute a commercial version. Existing Free Software licenses were either too permissive, giving to third parties rights that Netscape itself might not have, or too restrictive, binding Netscape to make source code freely available (the GPL) when it had already signed contracts with buyers of the nonfree code. +={BSD License;Mozilla Public License (MPL)+2;Netscape Public License (NPL)} + +It was a complex and specific business situation—a network of existing contracts and licensed code—that created the need for Netscape to write its own license. The NPL thus contained a clause that allowed Netscape special permission to relicense any particular contribution to the source code as a proprietary product in order to appease its third-party contracts; it essentially gave Netscape special rights that no other licensee would have. While this did not necessarily undermine the Free Software licenses—and it was certainly Netscape’s prerogative—it was contrary to the spirit of Free Software: it broke the "recursive public" into two halves. In order to appease Free Software geeks, Netscape wrote one license for existing code (the NPL) and a different license for new contributions: the Mozilla Public License. +={recursive public} + +Neither Stallman nor any other Free Software hacker was entirely happy with this situation. Stallman pointed out three flaws: "One flaw sends a bad philosophical message, another puts the free software community in a weak position, while the third creates a major practical problem within the free software community. Two of the flaws apply to the Mozilla Public License as well." He urged people ,{[pg 105]}, not to use the NPL. Similarly, Bruce Perens suggested, "Many companies have adopted a variation of the MPL [sic] for their own programs. This is unfortunate, because the NPL was designed for the specific business situation that Netscape was in at the time it was written, and is not necessarily appropriate for others to use. It should remain the license of Netscape and Mozilla, and others should use the GPL or the BSD or X licenses."~{ Bruce Perens, "The Open Source Definition," 184. }~ +={BSD License;Stallman, Richard;Perens, Bruce} + +Arguments about the fine details of licenses may seem scholastic, but the decision had a huge impact on the structure of the new product. As Steven Weber has pointed out, the choice of license tracks the organization of a product and can determine who and what kinds of contributions can be made to a project.~{ Steven Weber, The Success of Open Source. }~ It is not an idle choice; every new license is scrutinized with the same intensity or denounced with the same urgency. +={Weber, Steven} + +!_ Coordinating Collaborations +One of the selling points of Free Software, and especially of its marketing as Open Source, is that it leverages the work of thousands or hundreds of thousands of volunteer contributors across the Internet. Such a claim almost inevitably leads to spurious talk of "self-organizing" systems and emergent properties of distributed collaboration. The Netscape press release promised to "harness the creative power of thousands of programmers on the Internet by incorporating their best enhancements," and it quoted CEO Jim Barksdale as saying, "By giving away the source code for future versions, we can ignite the creative energies of the entire Net community and fuel unprecedented levels of innovation in the browser market."~{ "Netscape Announces Plans to Make Next-Generation Communicator Source Code Available Free on the Net," Netscape press release, 22 January 1998, http://wp.netscape.com/newsref/pr/newsrelease558.html (accessed 25 Sept 2007). }~ But as anyone who has ever tried to start or run a Free Software project knows, it never works out that way. +={coordination (component of Free Software)+6} + +Software engineering is a notoriously hard problem.~{ On the history of software development methodologies, see Mahoney, "The Histories of Computing(s)" and "The Roots of Software Engineering." }~ The halls of the software industry are lined with the warning corpses of dead software methodologies. Developing software in the dotcom boom was no different, except that the speed of release cycles and the velocity of funding (the "burn rate") was faster than ever before. Netscape’s in-house development methodologies were designed to meet these pressures, and as many who work in this field will attest, that method is some version of a semistructured, deadline-driven, caffeine- and smart-drink-fueled race to "ship."~{ Especially good descriptions of what this cycle is like can be found in Ullman, Close to the Machine and The Bug. }~ +={software development+2} + +Releasing the Mozilla code, therefore, required a system of coordination that would differ from the normal practice of in-house ,{[pg 106]}, software development by paid programmers. It needed to incorporate the contributions of outsiders—developers who didn’t work for Netscape. It also needed to entice people to contribute, since that was the bargain on which the decision to free the source was based, and to allow them to track their contributions, so they could verify that their contributions were included or rejected for legitimate reasons. In short, if any magical Open Source self-organization were to take place, it would require a thoroughly transparent, Internet-based coordination system. + +% no reference here to firefox or netscape, rather to mozilla + +At the outset, this meant practical things: obtaining the domain name mozilla.org; setting up (and in turn releasing the source code for) the version-control system (the Free Software standard cvs), the version-control interface (Bonsai), the "build system" that managed and displayed the various trees and (broken) branches of a complex software project (Tinderbox), and a bug-reporting system for tracking bugs submitted by users and developers (Bugzilla). It required an organizational system within the Mozilla project, in which paid developers would be assigned to check submissions from inside and outside, and maintainers or editors would be designated to look at and verify that these contributions should be used. +={bugs;Concurrent Versioning System (cvs);software tools} + +In the end, the release of the Mozilla source code was both a success and a failure. Its success was long in coming: by 2004, the Firefox Web browser, based on Mozilla, had started to creep up the charts of most popular browsers, and it has become one of the most visible and widely used Free Software applications. The failure, however, was more immediate: Mozilla failed to reap the massive benefits for Netscape that the 1995 give-away of Netscape Navigator had. Zawinski, in a public letter of resignation in April 1999 (one year after the release), expressed this sense of failure. He attributed Netscape’s decline after 1996 to the fact that it had "stopped innovating" and become too large to be creative, and described the decision to free the Mozilla source code as a return to this innovation: "[The announcement] was a beacon of hope to me. . . . [I]t was so crazy, it just might work. I took my cue and ran with it, registering the domain that night, designing the structure of the organization, writing the first version of the web site, and, along with my co-conspirators, explaining to room after room of Netscape employees and managers how free software worked, and what we had to do to make it work."~{ Jamie Zawinski, "resignation and postmortem," 31 March 1999, http://www.jwz.org/gruntle/nomo.html. }~ For Zawinski, the decision was both a chance for Netscape to return to its glory and an opportunity ,{[pg 107]}, to prove the power of Free Software: "I saw it as a chance for the code to actually prosper. By making it not be a Netscape project, but rather, be a public project to which Netscape was merely a contributor, the fact that Netscape was no longer capable of building products wouldn’t matter: the outsiders would show Netscape how it’s done. By putting control of the web browser into the hands of anyone who cared to step up to the task, we would ensure that those people would keep it going, out of their own self-interest."~{ Ibid. }~ +={Zawinski, Jamie+3;Firefox+1:see also Netscape Navigator;Netscape Navigator+1} + +% netscape navigator index link added + +But this promise didn’t come true—or, at least, it didn’t come true at the speed that Zawinski and others in the software world were used to. Zawinski offered various reasons: the project was primarily made up of Netscape employees and thus still appeared to be a Netscape thing; it was too large a project for outsiders to dive into and make small changes to; the code was too "crufty," that is, too complicated, overwritten, and unclean. Perhaps most important, though, the source code was not actually working: "We never distributed the source code to a working web browser, more importantly, to the web browser that people were actually using."~{ Ibid. }~ + +Netscape failed to entice. As Zawinski put it, "If someone were running a web browser, then stopped, added a simple new command to the source, recompiled, and had that same web browser plus their addition, they would be motivated to do this again, and possibly to tackle even larger projects."~{ Ibid. }~ For Zawinski, the failure to "ship" a working browser was the biggest failure, and he took pains to suggest that this failure was not an indictment of Free Software as such: "Let me assure you that whatever problems the Mozilla project is having are not because open source doesn’t work. Open source does work, but it is most definitely not a panacea. If there’s a cautionary tale here, it is that you can’t take a dying project, sprinkle it with the magic pixie dust of ‘open source,’ and have everything magically work out. Software is hard. The issues aren’t that simple."~{ Ibid. }~ + +!_ Fomenting Movements +The period from 1 April 1998, when the Mozilla source code was first released, to 1 April 1999, when Zawinski announced its failure, couldn’t have been a headier, more exciting time for participants in Free Software. Netscape’s decision to release the source code was a tremendous opportunity for geeks involved in Free Software. It came in the midst of the rollicking dotcom bubble. It also came in the midst of the widespread adoption of ,{[pg 108]}, key Free Software tools: the Linux operating system for servers, the Apache Web server for Web pages, the perl and python scripting languages for building quick Internet applications, and a number of other lower-level tools like Bind (an implementation of the DNS protocol) or sendmail for e-mail. +={movement (component of Free Software)+24;Apache (Free Software project);Domain Name System (DNS);Linux (Free Software project)} + +Perhaps most important, Netscape’s decision came in a period of fevered and intense self-reflection among people who had been involved in Free Software in some way, stretching back to the mid-1980s. Eric Raymond’s article "The Cathedral and The Bazaar," delivered at the Linux Kongress in 1997 and the O’Reilly Perl Conference the same year, had started a buzz among Free Software hackers. It was cited by Frank Hecker and Eric Hahn at Netscape as one of the sources for their thinking about the decision to free Mozilla; Raymond and Bruce Perens had both been asked to consult with Netscape on Free Software strategy. In April of the same year Tim O’Reilly, a publisher of handbooks for Free Software, organized a conference called the Freeware Summit. +={Freeware summit+5;Hahn, Eric;Hecker, Frank;O’Reilly, Tim;O’Reilly Press+1;Perens, Bruce;perl (programming language);Raymond, Eric Steven;Cathedral and the Bazaar} + +The Freeware Summit’s very name indicated some of the concern about definition and direction. Stallman, despite his obvious centrality, but also because of it, was not invited to the Freeware Summit, and the Free Software Foundation was not held up as the core philosophical guide of this event. Rather, according to the press release distributed after the meeting, "The meeting’s purpose was to facilitate a high-level discussion of the successes and challenges facing the developers. While this type of software has often been called ‘freeware’ or ‘free software’ in the past, the developers agreed that commercial development of the software is part of the picture, and that the terms ‘open source’ or ‘sourceware’ best describe the development method they support."~{ "Open Source Pioneers Meet in Historic Summit," press release, 14 April 1998, O’Reilly Press, http://press.oreilly.com/pub/pr/796. }~ +={Open Source:"Open Source Definition"+1;Stallman, Richard;Free Software Foundation} + +It was at this summit that Raymond’s suggestion of "Open Source" as an alternative name was first publicly debated.~{ See Hamerly and Paquin, "Freeing the Source." The story is elegantly related in Moody, Rebel Code, 182-204. Raymond gives Christine Petersen of the Foresight Institute credit for the term open source. }~ Shortly thereafter, Raymond and Perens created the Open Source Initiative and penned "The Open Source Definition." All of this self-reflection was intended to capitalize on the waves of attention being directed at Free Software in the wake of Netscape’s announcement. +={Open Source Initiative;Raymond, Eric Steven} + +The motivations for these changes came from a variety of sources—ranging from a desire to be included in the dotcom boom to a powerful (ideological) resistance to being ideological. Linus Torvalds loudly proclaimed that the reason to do Free Software was because it was "fun"; others insisted that it made better business ,{[pg 109]}, sense or that the stability of infrastructures like the Internet depended on a robust ability to improve them from any direction. But none of them questioned how Free Software got done or proposed to change it. +={Torvalds, Linus} + +Raymond’s paper "The Cathedral and the Bazaar" quickly became the most widely told story of how Open Source works and why it is important; it emphasizes the centrality of novel forms of coordination over the role of novel copyright licenses or practices of sharing source code. "The Cathedral and the Bazaar" reports Raymond’s experiments with Free Software (the bazaar model) and reflects on the difference between it and methodologies adopted by industry (the cathedral model). The paper does not truck with talk of freedom and has no denunciations of software hoarding à la Stallman. Significantly, it also has no discussion of issues of licensing. Being a hacker, however, Raymond did give his paper a "revision-history," which proudly displays revision 1.29, 9 February 1998: "Changed ‘free software’ to ‘open source.’"~{ From Raymond, The Cathedral and the Bazaar. The changelog is available online only: http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/. }~ +={Stallman, Richard+3;Raymond, Eric Steven+3;Cathedral and the Bazaar+3;Software development+7} + +Raymond was determined to reject the philosophy of liberty that Stallman and the Free Software Foundation represented, but not in order to create a political movement of his own. Rather, Raymond (and the others at the Freeware Summit) sought to cash in on the rising tide of the Internet economy by turning the creation of Free Software into something that made more sense to investors, venture capitalists, and the stock-buying public. To Raymond, Stallman and the Free Software Foundation represented not freedom or liberty, but a kind of dogmatic, impossible communism. As Raymond was a committed libertarian, one might expect his core beliefs in the necessity of strong property rights to conflict with the strange communalism of Free Software—and, indeed, his rhetoric was focused on pragmatic, business-minded, profit-driven, and market-oriented uses of Free Software. For Raymond, the essentially interesting component of Free Software was not its enhancement of human liberty, but the innovation in software production that it represented (the "development model"). It was clear that Free Software achieved something amazing through a clever inversion of strong property rights, an inversion which could be expected to bring massive revenue in some other form, either through cost-cutting or, Netscape-style, through the stock market. +={Free Software Foundation;intellectual property+1;libertarianism} + +Raymond wanted the business world and the mainstream industry to recognize Free Software’s potential, but he felt that Stallman’s ,{[pg 110]}, rhetoric was getting in the way. Stallman’s insistence, for example, on calling corporate intellectual-property protection of software "hoarding" was doing more damage than good in terms of Free Software’s acceptance among businesses, as a practice, if not exactly a product. + +Raymond’s papers channeled the frustration of an entire generation of Free Software hackers who may or may not have shared Stallman’s dogmatic philosophical stance, but who nonetheless wanted to participate in the creation of Free Software. Raymond’s paper, the Netscape announcement, and the Freeware Summit all played into a palpable anxiety: that in the midst of the single largest creation of paper wealth in U.S. history, those being enriched through Free Software and the Internet were not those who built it, who maintained it, or who got it. +={hackers+4;Netscape+1} + +The Internet giveaway was a conflict of propriety: hackers and geeks who had built the software that made it work, under the sign of making it free for all, were seeing that software generate untold wealth for people who had not built it (and furthermore, who had no intention of keeping it free for all). Underlying the creation of wealth was a commitment to a kind of permanent technical freedom—a moral order—not shared by those who were reaping the most profit. This anxiety regarding the expropriation of work (even if it had been a labor of love) was ramified by Netscape’s announcement. +={moral and technical order} + +All through 1998 and 1999, buzz around Open Source built. Little-known companies such as Red Hat, VA Linux, Cygnus, Slackware, and SuSe, which had been providing Free Software support and services to customers, suddenly entered media and business consciousness. Articles in the mainstream press circulated throughout the spring and summer of 1998, often attempting to make sense of the name change and whether it meant a corresponding change in practice. A front-cover article in Forbes, which featured photos of Stallman, Larry Wall, Brian Behlendorf, and Torvalds (figure 2), was noncommittal, cycling between Free Software, Open Source, and Freeware.~{ Josh McHugh, "For the Love of Hacking," Forbes, 10 August 1998, 94-100. }~ +={Behlendorf, Brian+2;Cygnus Solutions (corporation);dotcom era+4;Red Hat (corporation);VA Linux (corporation)+3;Wall, Larry;Stallman, Richard+2;Torvalds, Linus} + +{ 2bits_03_02-100.png }image ~[* "Peace, Love and Software," cover of Forbes, 10 August 1998. Used with permission of Forbes and Nathaniel Welch. ]~ + +By early 1999, O’Reilly Press published Open Sources: Voices from the Open Source Revolution, a hastily written but widely read book. It included a number of articles—this time including one by Stallman—that cobbled together the first widely available public history of Free Software, both the practice and the technologies ,{[pg 111]}, involved. Kirk McKusick’s article detailed the history of important technologies like the BSD version of UNIX, while an article by Brian Behlendorf, of Apache, detailed the practical challenges of running Free Software projects. Raymond provided a history of hackers and a self-aggrandizing article about his own importance in creating the movement, while Stallman’s contribution told his own version of the rise of Free Software. +={Apache (Free Software project);Berkeley Systems Distribution (BSD) (version of UNIX);Open Sources;O’Reilly Press;Raymond, Eric Steven+1;Raymond, Eric Steven+1;usable pasts} + +By December 1999, the buzz had reached a fever pitch. When VA Linux, a legitimate company which actually made something real—computers with Linux installed on them—went public, its shares’ value gained 700 percent in one day and was the single ,{[pg 112]}, most valuable initial public offering of the era. VA Linux took the unconventional step of allowing contributors to the Linux kernel to buy into the stock before the IPO, thus bringing at least a partial set of these contributors into the mainstream Ponzi scheme of the Internet dotcom economy. Those who managed to sell their stock ended up benefiting from the boom, whether or not their contributions to Free Software truly merited it. In a roundabout way, Raymond, O’Reilly, Perens, and others behind the name change had achieved recognition for the central role of Free Software in the success of the Internet—and now its true name could be known: Open Source. +={Linux (Free Software project);Open Source:Free Software vs.+11} + +Yet nothing much changed in terms of the way things actually got done. Sharing source code, conceiving openness, writing licenses, coordinating projects—all these continued as before with no significant differences between those flashing the heroic mantle of freedom and those donning the pragmatic tunic of methodology. Now, however, stories proliferated; definitions, distinctions, details, and detractions filled the ether of the Internet, ranging from the philosophical commitments of Free Software to the parables of science as the "original open source" software. Free Software proponents refined their message concerning rights, while Open Source advocates refined their claims of political agnosticism or nonideological commitments to "fun." All these stories served to create movements, to evangelize and advocate and, as Eugen Leitl would say, to "corrupt young minds" and convert them to the cause. The fact that there are different narratives for identical practices is an advantageous fact: regardless of why people think they are doing what they are doing, they are all nonetheless contributing to the same mysterious thing. +={Leitl, Eugene} + +2~ A Movement? + +To most onlookers, Free Software and Open Source seem to be overwhelmed with frenzied argument; the flame wars and disputes, online and off, seem to dominate everything. To attend a conference where geeks—especially high-profile geeks like Raymond, Stallman, and Torvalds—are present, one might suspect that the very detailed practices of Free Software are overseen by the brow-beating, histrionic antics of a few charismatic leaders and that ideological commitments result in divergent, incompatible, and affect-laden ,{[pg 113]}, opposition which must of necessity take specific and incompatible forms. Strangely, this is far from the case: all this sound and fury doesn’t much change what people do, even if it is a requirement of apprenticeship. It truly is all over but for the shouting. +={Raymond, Eric Steven;Stallman, Richard;Torvalds, Linus;Free Software:open source vs.+8;practices+4} + +According to most of the scholarly literature, the function of a movement is to narrate the shared goals and to recruit new members. But is this what happens in Free Software or Open Source?~{ On social movements—the closest analog, developed long ago—see Gerlach and Hine, People, Power, Change, and Freeman and Johnson, Waves of Protest. However, the Free Software and Open Source Movements do not have "causes" of the kind that conventional movements do, other than the perpetuation of Free and Open Source Software (see Coleman, "Political Agnosticism"; Chan, "Coding Free Software"). Similarly, there is no single development methodology that would cover only Open Source. Advocates of Open Source are all too willing to exclude those individuals or organizations who follow the same "development methodology" but do not use a Free Software license—such as Microsoft’s oft-mocked "shared-source" program. The list of licenses approved by both the Free Software Foundation and the Open Source Initiative is substantially the same. Further, the Debian Free Software Guidelines and the "Open Source Definition" are almost identical (compare http://www.gnu.org/philosophy/license-list.html with http://www.opensource.org/licenses/ [both accessed 30 June 2006]). }~ To begin with, movement is an awkward word; not all participants would define their participation this way. Richard Stallman suggests that Free Software is social movement, while Open Source is a development methodology. Similarly some Open Source proponents see it as a pragmatic methodology and Free Software as a dogmatic philosophy. While there are specific entities like the Free Software Foundation and the Open Source Initiative, they do not comprise all Free Software or Open Source. Free Software and Open Source are neither corporations nor organizations nor consortia (for there are no organizations to consort); they are neither national, subnational, nor international; they are not "collectives" because no membership is required or assumed—indeed to hear someone assert "I belong" to Free Software or Open Source would sound absurd to anyone who does. Neither are they shady bands of hackers, crackers, or thieves meeting in the dead of night, which is to say that they are not an "informal" organization, because there is no formal equivalent to mimic or annul. Nor are they quite a crowd, for a crowd can attract participants who have no idea what the goal of the crowd is; also, crowds are temporary, while movements extend over time. It may be that movement is the best term of the lot, but unlike social movements, whose organization and momentum are fueled by shared causes or broken by ideological dispute, Free Software and Open Source share practices first, and ideologies second. It is this fact that is the strongest confirmation that they are a recursive public, a form of public that is as concerned with the material practical means of becoming public as it is with any given public debate. +={affinity (of geeks)+1;movement (component of Free Software):function of+3;social movement, theories of;Software development+1} + +The movement, as a practice of argument and discussion, is thus centered around core agreements about the other four kinds of practices. The discussion and argument have a specific function: to tie together divergent practices according to a wide consensus which tries to capture the why of Free Software. Why is it different from normal software development? Why is it necessary? Why now? ,{[pg 114]}, Why do people do it? Why do people use it? Can it be preserved and enhanced? None of these questions address the how: how should source code circulate? How should a license be written? Who should be in charge? All of these "hows" change slowly and experimentally through the careful modulation of the practices, but the "whys" are turbulent and often distracting. Nonetheless, people engaged in Free Software—users, developers, supporters, and observers—could hardly remain silent on this point, despite the frequent demand to just "shut up and show me the code." "Figuring out" Free Software also requires a practice of reflecting on what is central to it and what is outside of it. +={figuring out+2} + +The movement, as a practice of discussion and argument, is made up of stories. It is a practice of storytelling: affect- and intellect-laden lore that orients existing participants toward a particular problem, contests other histories, parries attacks from outside, and draws in new recruits.~{ It is, in the terms of Actor Network Theory, a process of "enrollment" in which participants find ways to rhetorically align—and to disalign—their interests. It does not constitute the substance of their interest, however. See Latour, Science in Action; Callon, "Some Elements of a Sociology of Translation." }~ This includes proselytism and evangelism (and the usable pasts of protestant reformations, singularities, rebellion and iconoclasm are often salient here), whether for the reform of intellectual-property law or for the adoption of Linux in the trenches of corporate America. It includes both heartfelt allegiance in the name of social justice as well as political agnosticism stripped of all ideology.~{ Coleman, "Political Agnosticism." }~ Every time Free Software is introduced to someone, discussed in the media, analyzed in a scholarly work, or installed in a workplace, a story of either Free Software or Open Source is used to explain its purpose, its momentum, and its temporality. At the extremes are the prophets and proselytes themselves: Eric Raymond describes Open Source as an evolutionarily necessary outcome of the natural tendency of human societies toward economies of abundance, while Richard Stallman describes it as a defense of the fundamental freedoms of creativity and speech, using a variety of philosophical theories of liberty, justice, and the defense of freedom.~{ See, respectively, Raymond, The Cathedral and the Bazaar, and Williams, Free as in Freedom. }~ Even scholarly analyses must begin with a potted history drawn from the self-narration of geeks who make or advocate free software.~{ For example, Castells, The Internet Galaxy, and Weber, The Success of Open Source both tell versions of the same story of origins and development. }~ Indeed, as a methodological aside, one reason it is so easy to track such stories and narratives is because geeks like to tell and, more important, like to archive such stories—to create Web pages, definitions, encyclopedia entries, dictionaries, and mini-histories and to save every scrap of correspondence, every fight, and every resolution related to their activities. This "archival hubris" yields a very peculiar and specific kind of fieldsite: one in which a kind ,{[pg 115]}, of "as-it-happens" ethnographic observation is possible not only through "being there" in the moment but also by being there in the massive, proliferating archives of moments past. Understanding the movement as a changing entity requires constantly glancing back at its future promises and the conditions of their making. +={Actor Network Theory;allegory, of Protestant Reformation;ethnography+1;geeks:self-representation+1;practices:"archival hubris"|stories as;Raymond, Eric Steven;Stallman, Richard} + +Stories of the movement are also stories of a recursive public. The fact that movement isn’t quite the right word is evidence of a kind of grasping, a figuring out of why these practices make sense to all these geeks, in this place and time; it is a practice that is not so different from my own ethnographic engagement with it. Note that both Free Software and Open Source tell stories of movement(s): they are not divided by a commercial-noncommercial line, even if they are divided by ill-defined and hazy notions of their ultimate goals. The problem of a recursive public (or, in an alternate language, a recursive market) as a social imaginary of moral and technical order is common to both of them as part of their practices. Thus, stories about "the movement" are detailed stories about the technical and moral order that geeks inhabit, and they are bound up with the functions and fates of the Internet. Often these stories are themselves practices of inclusion and exclusion (e.g., "this license is not a Free Software license" or "that software is not an open system"); sometimes the stories are normative definitions about how Free Software should look. But they are, always, stories that reveal the shared moral and technical imaginations that make up Free Software as a recursive public. +={moral and technical order;recursive public;social imaginary} + +2~ Conclusion + +Before 1998, there was no movement. There was the Free Software Foundation, with its peculiar goals, and a very wide array of other projects, people, software, and ideas. Then, all of a sudden, in the heat of the dotcom boom, Free Software was a movement. Suddenly, it was a problem, a danger, a job, a calling, a dogma, a solution, a philosophy, a liberation, a methodology, a business plan, a success, and an alternative. Suddenly, it was Open Source or Free Software, and it became necessary to choose sides. After 1998, debates about definition exploded; denunciations and manifestos and journalistic hagiography proliferated. Ironically, the creation of two names allowed people to identify one thing, for ,{[pg 116]}, these two names referred to identical practices, licenses, tools, and organizations. Free Software and Open Source shared everything "material," but differed vocally and at great length with respect to ideology. Stallman was denounced as a kook, a communist, an idealist, and a dogmatic holding back the successful adoption of Open Source by business; Raymond and users of "open source" were charged with selling out the ideals of freedom and autonomy, with the dilution of the principles and the promise of Free Software, as well as with being stooges of capitalist domination. Meanwhile, both groups proceeded to create objects—principally software—using tools that they agreed on, concepts of openness that they agreed on, licenses that they agreed on, and organizational schemes that they agreed on. Yet never was there fiercer debate about the definition of Free Software. +={Raymond, Eric Steven;Stallman, Richard;usable pasts} + +On the one hand, the Free Software Foundation privileges the liberty and creativity of individual geeks, geeks engaged in practices of self-fashioning through the creation of software. It gives precedence to the liberal claim that without freedom of expression, individuals are robbed of their ability to self-determine. On the other hand, Open Source privileges organizations and processes, that is, geeks who are engaged in building businesses, nonprofit organizations, or governmental and public organizations of some form or another. It gives precedence to the pragmatist (or polymathic) view that getting things done requires flexible principles and negotiation, and that the public practice of building and running things should be separate from the private practice of ethical and political beliefs. Both narratives give geeks ways of making sense of a practice that they share in almost all of its details; both narratives give geeks a way to understand how Free Software or Open Source Software is different from the mainstream, proprietary software development that dominates their horizons. The narratives turn the haphazard participation and sharing that existed before 1998 into meaningful, goal-directed practices in the present, turning a class-in-itself into a class-for-itself, to use a terminology for the most part unwelcome among geeks. +={geeks} + +If two radically opposed ideologies can support people engaged in identical practices, then it seems obvious that the real space of politics and contestation is at the level of these practices and their emergence. These practices emerge as a response to a reorientation of power and knowledge, a reorientation somewhat impervious to ,{[pg 117]}, conventional narratives of freedom and liberty, or to pragmatic claims of methodological necessity or market-driven innovation. Were these conventional narratives sufficient, the practices would be merely bureaucratic affairs, rather than the radical transformations they are. +={reorientation of power and knowledge} + +1~ 4. Sharing Source Code + +% ,{[pg 118]}, + +Free Software would be nothing without shared source code. The idea is built into the very name "Open Source," and it is a requirement of all Free Software licenses that source code be open to view, not "welded shut." Perhaps ironically, source code is the most material of the five components of Free Software; it is both an expressive medium, like writing or speech, and a tool that performs concrete actions. It is a mnemonic that translates between the illegible electron-speed doings of our machines and our lingering ability to partially understand and control them as human agents. Many Free Software programmers and advocates suggest that "information wants to be free" and that sharing is a natural condition of human life, but I argue something contrary: sharing produces its own kind of moral and technical order, that is, "information makes people want freedom" and how they want it is related to how that information is created and circulated. In this chapter I explore the ,{[pg 119]}, twisted and contingent history of how source code and its sharing have come to take the technical, legal, and pedagogical forms they have today, and how the norms of sharing have come to seem so natural to geeks. +={moral and technical order;sharing source code (component of Free Software)+50;pedagogy:operating systems and+2} + +Source code is essential to Free Software because of the historically specific ways in which it has come to be shared, "ported," and "forked." Nothing about the nature of source code requires that it be shared, either by corporations for whom secrecy and jealous protection are the norm or by academics and geeks for whom source code is usually only one expression, or implementation, of a greater idea worth sharing. However, in the last thirty years, norms of sharing source code—technical, legal, and pedagogical norms—have developed into a seemingly natural practice. They emerged through attempts to make software into a product, such as IBM’s 1968 "unbundling" of software and hardware, through attempts to define and control it legally through trade secret, copyright, and patent law, and through attempts to teach engineers how to understand and to create more software. +={implementation of software;Secrecy+7;unbundling;Intellectual property;International Business Machines (IBM)} + +The story of the norms of sharing source code is, not by accident, also the history of the UNIX operating system.~{ "Sharing" source code is not the only kind of sharing among geeks (e.g., informal sharing to communicate ideas), and UNIX is not the only ,{[pg 324]}, shared software. Other examples that exhibit this kind of proliferation (e.g., the LISP programming language, the TeX text-formatting system) are as ubiquitous as UNIX today. The inverse of my argument here is that selling produces a different kind of order: many products that existed in much larger numbers than UNIX have since disappeared because they were never ported or forked; they are now part of dead-computer museums and collections, if they have survived at all. }~ The UNIX operating system is a monstrous academic-corporate hybrid, an experiment in portability and sharing whose impact is widely and reverently acknowledged by geeks, but underappreciated more generally. The story of UNIX demonstrates the details of how source code has come to be shared, technically, legally, and pedagogically. In technical terms UNIX and the programming language C in which it was written demonstrated several key ideas in operating-systems theory and practice, and they led to the widespread "porting" of UNIX to virtually every kind of hardware available in the 1970s, all around the world. In legal terms UNIX’s owner, AT&T, licensed it widely and liberally, in both binary and source-code form; the legal definition of UNIX as a product, however, was not the same as the technical definition of UNIX as an evolving experiment in portable operating systems—a tension that has continued throughout its lifetime. In pedagogical terms UNIX became the very paradigm of an "operating system" and was thereby ported not only in the technical sense from one machine to another, but from machines to minds, as computer-science students learning the meaning of "operating system" studied the details of the quasi-legally shared UNIX source code.~{ The story of UNIX has not been told, and yet it has been told hundreds of thousands of times. Every hacker, programmer, computer scientist, and geek tells a version of UNIX history—a usable past. Thus, the sources for this chapter include these stories, heard and recorded throughout my fieldwork, but also easily accessible in academic work on Free Software, which enthusiastically participates in this potted-history retailing. See, for example, Steven Weber, The Success of Open Source; Castells, The Internet Galaxy; Himanen, The Hacker Ethic; Benkler, The Wealth of Networks. To date there is but one detailed history of UNIX—A Quarter Century of UNIX, by Peter Salus—which I rely on extensively. Matt Ratto’s dissertation, "The Pressure of Openness," also contains an excellent analytic history of the events told in this chapter. }~ +={operating systems, history of+40;programming languages+46;UNIX operating system+3;AT&T+2;C (programming language);programming+11} + +% ,{[pg 120]}, + +The proliferation of UNIX was also a hybrid commercial-academic undertaking: it was neither a "public domain" object shared solely among academics, nor was it a conventional commercial product. Proliferation occurred through novel forms of academic sharing as well as through licensing schemes constrained by the peculiar status of AT&T, a regulated monopoly forbidden to enter the computer and software industry before 1984. Thus proliferation was not mere replication: it was not the sale of copies of UNIX, but a complex web of shared and re-shared chunks of source code, and the reimplementation of an elegant and simple conceptual scheme. As UNIX proliferated, it was stabilized in multiple ways: by academics seeking to keep it whole and self-compatible through contributions of source code; by lawyers at AT&T seeking to define boundaries that mapped onto laws, licenses, versions, and regulations; and by professors seeking to define it as an exemplar of the core concepts of operating-system theory. In all these ways, UNIX was a kind of primal recursive public, drawing together people for whom the meaning of their affiliation was the use, modification, and stabilization of UNIX. +={public domain;recursive public:precursors of;monopoly;proliferation of software+1} + +The obverse of proliferation is differentiation: forking. UNIX is admired for its integrity as a conceptual thing and despised (or marveled at) for its truly tangled genealogical tree of ports and forks: new versions of UNIX, some based directly on the source code, some not, some licensed directly from AT&T, some sublicensed or completely independent. +={differentiation of software} + +Forking, like random mutation, has had both good and bad effects; on the one hand, it ultimately created versions of UNIX that were not compatible with themselves (a kind of autoimmune response), but it also allowed the merger of UNIX and the Arpanet, creating a situation wherein UNIX operating systems came to be not only the paradigm of operating systems but also the paradigm of networked computers, through its intersection with the development of the TCP/IP protocols that are at the core of the Internet.~{ The intersection of UNIX and TCP/IP occurred around 1980 and led to the famous switch from the Network Control Protocol (NCP) to the Transmission Control Protocol/Internet Protocol that occurred on 1 January 1983 (see Salus, Casting the Net). }~ By the mid-1980s, UNIX was a kind of obligatory passage point for anyone interested in networking, operating systems, the Internet, and especially, modes of creating, sharing, and modifying source code—so much so that UNIX has become known among geeks not just as an operating system but as a philosophy, an answer to a very old question in new garb: how shall we live, among a new world of machines, software, and networks? +={Arpanet (network);protocols: distinguished from standards and implementation;Open Systems Interconnection (OSI):TCP/IP;TCP/IP (Transmission Control Protocol/Internet Protocol);UNIX operating system: relationship to Arpanet;UNIX philosophy} + +% ,{[pg 121]}, + +2~ Before Source + +In the early days of computing machinery, there was no such thing as source code. Alan Turing purportedly liked to talk to the machine in binary. Grace Hopper, who invented an early compiler, worked as close to the Harvard Mark I as she could get: flipping switches and plugging and unplugging relays that made up the "code" of what the machine would do. Such mechanical and meticulous work hardly merits the terms reading and writing; there were no GOTO statements, no line numbers, only calculations that had to be translated from the pseudo-mathematical writing of engineers and human computers to a physical or mechanical configuration.~{ Light, "When Computers Were Women"; Grier, When Computers Were Human. }~ Writing and reading source code and programming languages was a long, slow development that became relatively widespread only by the mid-1970s. So-called higher-level languages began to appear in the late 1950s: FORTRAN, COBOL, Algol, and the "compilers" which allowed for programs written in them to be transformed into the illegible mechanical and valvular representations of the machine. It was in this era that the terms source language and target language emerged to designate the activity of translating higher to lower level languages.~{ There is a large and growing scholarly history of software: Wexelblat, History of Programming Languages and Bergin and Gibson, History of Programming Languages 2 are collected papers by historians and participants. Key works in history include Campbell-Kelly, From Airline Reservations to Sonic the Hedgehog; Akera and Nebeker, From 0 to 1; Hashagen, Keil-Slawik, and Norberg, History of Computing—Software Issues; Donald A. MacKenzie, Mechanizing Proof. Michael Mahoney has written by far the most about the early history of software; his relevant works include "The Roots of Software Engineering," "The Structures of Computation," "In Our Own Image," and "Finding a History for Software Engineering." On UNIX in particular, there is shockingly little historical work. Martin Campbell-Kelly and William Aspray devote a mere two pages in their general history Computer. As early as 1978, Ken Thompson and Dennis Ritchie were reflecting on the "history" of UNIX in "The UNIX Time-Sharing System: A Retrospective." Ritchie maintains a Web site that contains a valuable collection of early documents and his own reminiscences (http://www.cs.bell-labs.com/who/dmr/ ,{[pg 325]}, ). Mahoney has also conducted interviews with the main participants in the development of UNIX at Bell Labs. These interviews have not been published anywhere, but are drawn on as background in this chapter (interviews are in Mahoney’s personal files). }~ +={FORTRAN (programming language);Hopper, Grace;Turing, Alan+2;translation of source code+5;sharing source code (component of Free Software):before Software+5;source code:translation of+5} + +There is a certain irony about the computer, not often noted: the unrivaled power of the computer, if the ubiquitous claims are believed, rests on its general programmability; it can be made to do any calculation, in principle. The so-called universal Turing machine provides the mathematical proof.~{ Turing, "On Computable Numbers." See also Davis, Engines of Logic, for a basic explanation. }~ Despite the abstract power of such certainty, however, we do not live in the world of The Computer—we live in a world of computers. The hardware systems that manufacturers created from the 1950s onward were so specific and idiosyncratic that it was inconceivable that one might write a program for one machine and then simply run it on another. "Programming" became a bespoke practice, tailored to each new machine, and while programmers of a particular machine may well have shared programs with each other, they would not have seen much point in sharing with users of a different machine. Likewise, computer scientists shared mathematical descriptions of algorithms and ideas for automation with as much enthusiasm as corporations jealously guarded theirs, but this sharing, or secrecy, did not extend to the sharing of the program itself. The need to "rewrite" a program for each machine was not just a historical accident, but ,{[pg 122]}, was determined by the needs of designers and engineers and the vicissitudes of the market for such expensive machines.~{ Sharing programs makes sense in this period only in terms of user groups such as SHARE (IBM) and USE (DEC). These groups were indeed sharing source code and sharing programs they had written (see Akera, "Volunteerism and the Fruits of Collaboration"), but they were constituted around specific machines and manufacturers; brand loyalty and customization were familiar pursuits, but sharing source code across dissimilar computers was not. }~ + +In the good old days of computers-the-size-of-rooms, the languages that humans used to program computers were mnemonics; they did not exist in the computer, but on a piece of paper or a specially designed code sheet. The code sheet gave humans who were not Alan Turing a way to keep track of, to share with other humans, and to think systematically about the invisible light-speed calculations of a complicated device. Such mnemonics needed to be "coded" on punch cards or tape; if engineers conferred, they conferred over sheets of paper that matched up with wires, relays, and switches—or, later, printouts of the various machine-specific codes that represented program and data. + +With the introduction of programming languages, the distinction between a "source" language and a "target" language entered the practice: source languages were "translated" into the illegible target language of the machine. Such higher-level source languages were still mnemonics of sorts—they were certainly easier for humans to read and write, mostly on yellowing tablets of paper or special code sheets—but they were also structured enough that a source language could be input into a computer and translated into a target language which the designers of the hardware had specified. Inputting commands and cards and source code required a series of actions specific to each machine: a particular card reader or, later, a keypunch with a particular "editor" for entering the commands. Properly input and translated source code provided the machine with an assembled binary program that would, in fact, run (calculate, operate, control). It was a separation, an abstraction that allowed for a certain division of labor between the ingenious human authors and the fast and mechanical translating machines. +={text editors+1} + +Even after the invention of programming languages, programming "on" a computer—sitting at a glowing screen and hacking through the night—was still a long time in coming. For example, only by about 1969 was it possible to sit at a keyboard, write source code, instruct the computer to compile it, then run the program—all without leaving the keyboard—an activity that was all but unimaginable in the early days of "batch processing."~{ See Waldrop, The Dream Machine, 142-47. }~ Very few programmers worked in such a fashion before the mid-1970s, when text editors that allowed programmers to see the text on a screen rather ,{[pg 123]}, than on a piece of paper started to proliferate.~{ A large number of editors were created in the 1970s; Richard Stallman’s EMACS and Bill Joy’s vi remain the most well known. Douglas Engelbart is somewhat too handsomely credited with the creation of the interactive computer, but the work of Butler Lampson and Peter Deutsch in Berkeley, as well as that of the Multics team, Ken Thompson, and others on early on-screen editors is surely more substantial in terms of the fundamental ideas and problems of manipulating text files on a screen. This story is largely undocumented, save for in the computer-science literature itself. On Engelbart, see Bardini, Bootstrapping. }~ We are, by now, so familiar with the image of the man or woman sitting at a screen interacting with this device that it is nearly impossible to imagine how such a seemingly obvious practice was achieved in the first place—through the slow accumulation of the tools and techniques for working on a new kind of writing—and how that practice exploded into a Babel of languages and machines that betrayed the promise of the general-purpose computing machine. +={proliferation of software+2;source code:batch processing;standards:programming languages+3} + +The proliferation of different machines with different architectures drove a desire, among academics especially, for the standardization of programming languages, not so much because any single language was better than another, but because it seemed necessary to most engineers and computer users to share an emerging corpus of algorithms, solutions, and techniques of all kinds, necessary to avoid reinventing the wheel with each new machine. Algol, a streamlined language suited to algorithmic and algebraic representations, emerged in the early 1960s as a candidate for international standardization. Other languages competed on different strengths: FORTRAN and COBOL for general business use; LISP for symbolic processing. At the same time, the desire for a standard "higher-level" language necessitated a bestiary of translating programs: compilers, parsers, lexical analyzers, and other tools designed to transform the higher-level (human-readable) language into a machine-specific lower-level language, that is, machine language, assembly language, and ultimately the mystical zeroes and ones that course through our machines. The idea of a standard language and the necessity of devising specific tools for translation are the origin of the problem of portability: the ability to move software—not just good ideas, but actual programs, written in a standard language—from one machine to another. +={COBOL (programming language);FORTRAN (programming language);LISP (programming language);portability, of operating systems+8} + +A standard source language was seen as a way to counteract the proliferation of different machines with subtly different architectures. Portable source code would allow programmers to imagine their programs as ships, stopping in at ports of call, docking on different platforms, but remaining essentially mobile and unchanged by these port-calls. Portable source code became the Esperanto of humans who had wrought their own Babel of tribal hardware machines. +={source code+7} + +Meanwhile, for the computer industry in the 1960s, portable source code was largely a moot point. Software and hardware were ,{[pg 124]}, two sides of single, extremely expensive coin—no one, except engineers, cared what language the code was in, so long as it performed the task at hand for the customer. Each new machine needed to be different, faster, and, at first, bigger, and then smaller, than the last. The urge to differentiate machines from each other was not driven by academic experiment or aesthetic purity, but by a demand for marketability, competitive advantage, and the transformation of machines and software into products. Each machine had to do something really well, and it needed to be developed in secret, in order to beat out the designs and innovations of competitors. In the 1950s and 1960s the software was a core component of this marketable object; it was not something that in itself was differentiated or separately distributed—until IBM’s famous decision in 1968 to "unbundle" software and hardware. +={unbundling+2} + +Before the 1970s, employees of a computer corporation wrote software in-house. The machine was the product, and the software was just an extra line-item on the invoice. IBM was not the first to conceive of software as an independent product with its own market, however. Two companies, Informatics and Applied Data Research, had explored the possibilities of a separate market in software.~{ See Campbell-Kelly, From Airline Reservations to Sonic the Hedgehog. }~ Informatics, in particular, developed the first commercially successful software product, a business-management system called Mark IV, which in 1967 cost $30,000. Informatics’ president Walter Bauer "later recalled that potential buyers were ‘astounded’ by the price of Mark IV. In a world accustomed to free software the price of $30,000 was indeed high."~{ Ibid., 107. }~ +={Applied Data Research (corporation);Informatics (corporation)} + +IBM’s unbundling decision marked a watershed, the point at which "portable" source code became a conceivable idea, if not a practical reality, to many in the industry.~{ Campbell-Kelly and Aspray, Computer, 203-5. }~ Rather than providing a complete package of hardware and software, IBM decided to differentiate its products: to sell software and hardware separately to consumers.~{ Ultimately, the Department of Justice case against IBM used bundling as evidence of monopolistic behavior, in addition to claims about the creation of so-called Plug Compatible Machines, devices that were reverse-engineered by meticulously constructing both the mechanical interface and the software that would communicate with IBM mainframes. See Franklin M. Fischer, Folded, Spindled, and Mutilated; Brock, The Second Information Revolution. }~ But portability was not simply a technical issue; it was a political-economic one as well. IBM’s decision was driven both by its desire to create IBM software that ran on all IBM machines (a central goal of the famous OS/360 project overseen and diagnosed by Frederick Brooks) and as response to an antitrust suit filed by the U.S. Department of Justice.~{ The story of this project and the lessons Brooks learned are the subject of one of the most famous software-development handbooks, The Mythical Man-Month, by Frederick Brooks. }~ The antitrust suit included as part of its claims the suggestion that the close tying of software and hardware represented a form of monopolistic behavior, and it prompted IBM to consider strategies to "unbundle" its product. +={antitrust;Brooks, Frederick;Justice, Department of;monopoly} + +% ,{[pg 125]}, + +Portability in the business world meant something specific, however. Even if software could be made portable at a technical level—transferable between two different IBM machines—this was certainly no guarantee that it would be portable between customers. One company’s accounting program, for example, may not suit another’s practices. Portability was therefore hindered both by the diversity of machine architectures and by the diversity of business practices and organization. IBM and other manufacturers therefore saw no benefit to standardizing source code, as it could only provide an advantage to competitors.~{ The computer industry has always relied heavily on trade secret, much less so on patent and copyright. Trade secret also produces its own form of order, access, and circulation, which was carried over into the early software industry as well. See Kidder, The Soul of a New Machine for a classic account of secrecy and competition in the computer industry. }~ + +Portability was thus not simply a technical problem—the problem of running one program on multiple architectures—but also a kind of political-economic problem. The meaning of product was not always the same as the meaning of hardware or software, but was usually some combination of the two. At that early stage, the outlines of a contest over the meaning of portable or shareable source code are visible, both in the technical challenges of creating high-level languages and in the political-economic challenges that corporations faced in creating distinctive proprietary products. + +2~ The UNIX Time-Sharing System +={UNIX operating system:history of+18} + +Set against this backdrop, the invention, success, and proliferation of the UNIX operating system seems quite monstrous, an aberration of both academic and commercial practice that should have failed in both realms, instead of becoming the most widely used portable operating system in history and the very paradigm of an "operating system" in general. The story of UNIX demonstrates how portability became a reality and how the particular practice of sharing UNIX source code became a kind of de facto standard in its wake. + +UNIX was first written in 1969 by Ken Thompson and Dennis Ritchie at Bell Telephone Labs in Murray Hill, New Jersey. UNIX was the dénouement of the MIT project Multics, which Bell Labs had funded in part and to which Ken Thompson had been assigned. Multics was one of the earliest complete time-sharing operating systems, a demonstration platform for a number of early innovations in time-sharing (multiple simultaneous users on one computer).~{ On time sharing, see Lee et al., "Project MAC." Multics makes an appearance in nearly all histories of computing, the best resource by far being Tom van Vleck’s Web site http://www.multicians.org/. }~ By 1968, Bell Labs had pulled its support—including Ken Thompson—from the project and placed him back in Murray Hill, where he and ,{[pg 126]}, Dennis Ritchie were stuck without a machine, without any money, and without a project. They were specialists in operating systems, languages, and machine architecture in a research group that had no funding or mandate to pursue these areas. Through the creative use of some discarded equipment, and in relative isolation from the rest of the lab, Thompson and Ritchie created, in the space of about two years, a complete operating system, a programming language called C, and a host of tools that are still in extremely wide use today. The name UNIX (briefly, UNICS) was, among other things, a puerile pun: a castrated Multics. +={C (programming language);Multics+1;Ritchie, Dennis+19;Thompson, Ken+16} + +The absence of an economic or corporate mandate for Thompson’s and Ritchie’s creativity and labor was not unusual for Bell Labs; researchers were free to work on just about anything, so long as it possessed some kind of vague relation to the interests of AT&T. However, the lack of funding for a more powerful machine did restrict the kind of work Thompson and Ritchie could accomplish. In particular, it influenced the design of the system, which was oriented toward a super-slim control unit (a kernel) that governed the basic operation of the machine and an expandable suite of small, independent tools, each of which did one thing well and which could be strung together to accomplish more complex and powerful tasks.~{ Some widely admired technical innovations (many of which were borrowed from Multics) include: the hierarchical file system, the command shell for interacting with the system; the decision to treat everything, including external devices, as the same kind of entity (a file), the "pipe" operator which allowed the output of one tool to be "piped" as input to another tool, facilitating the easy creation of complex tasks from simple tools. }~ With the help of Joseph Ossana, Douglas McIlroy, and others, Thompson and Ritchie eventually managed to agitate for a new PDP-11/20 based not on the technical merits of the UNIX operating system itself, but on its potential applications, in particular, those of the text-preparation group, who were interested in developing tools for formatting, typesetting, and printing, primarily for the purpose of creating patent applications, which was, for Bell Labs, and for AT&T more generally, obviously a laudable goal.~{ Salus, A Quarter Century of UNIX, 33-37. }~ +={AT&T+14;McIlroy, Douglas} + +UNIX was unique for many technical reasons, but also for a specific economic reason: it was never quite academic and never quite commercial. Martin Campbell-Kelly notes that UNIX was a "non-proprietary operating system of major significance."~{ Campbell-Kelly, From Airline Reservations to Sonic the Hedgehog, 143. }~ Kelly’s use of "non-proprietary" is not surprising, but it is incorrect. Although business-speak regularly opposed open to proprietary throughout the 1980s and early 1990s (and UNIX was definitely the former), Kelly’s slip marks clearly the confusion between software ownership and software distribution that permeates both popular and academic understandings. UNIX was indeed proprietary—it was copyrighted and wholly owned by Bell Labs and in turn by Western Electric ,{[pg 127]}, and AT&T—but it was not exactly commercialized or marketed by them. Instead, AT&T allowed individuals and corporations to install UNIX and to create UNIX-like derivatives for very low licensing fees. Until about 1982, UNIX was licensed to academics very widely for a very small sum: usually royalty-free with a minimal service charge (from about $150 to $800).~{ Ritchie’s Web site contains a copy of a 1974 license (http://cm.bell-labs.com/cm/cs/who/dmr/licenses.html) and a series of ads that exemplify the uneasy positioning of UNIX as a commercial product (http://cm.bell-labs.com/cm/cs/who/dmr/unixad.html). According to Don Libes and Sandy Ressler, "The original licenses were source licenses. . . . [C]ommercial institutions paid fees on the order of $20,000. If you owned more than one machine, you had to buy binary licenses for every additional machine [i.e., you were not allowed to copy the source and install it] you wanted to install UNIX on. They were fairly pricey at $8000, considering you couldn’t resell them. On the other hand, educational institutions could buy source licenses for several hundred dollars—just enough to cover Bell Labs’ administrative overhead and the cost of the tapes" (Life with UNIX, 20-21). }~ The conditions of this license allowed researchers to do what they liked with the software so long as they kept it secret: they could not distribute or use it outside of their university labs (or use it to create any commercial product or process), nor publish any part of it. As a result, throughout the 1970s UNIX was developed both by Thompson and Ritchie inside Bell Labs and by users around the world in a relatively informal manner. Bell Labs followed such a liberal policy both because it was one of a small handful of industry-academic research and development centers and because AT&T was a government monopoly that provided phone service to the country and was therefore forbidden to directly enter the computer software market.~{ According to Salus, this licensing practice was also a direct result of Judge Thomas Meaney’s 1956 antitrust consent decree which required AT&T to reveal and to license its patents for nominal fees (A Quarter Century of UNIX, 56); see also Brock, The Second Information Revolution, 116-20. }~ +={AT&T:Bell Laboratories+13;licensing, of UNIX+6;proprietary systems: open vs.;monopoly} + +Being on the border of business and academia meant that UNIX was, on the one hand, shielded from the demands of management and markets, allowing it to achieve the conceptual integrity that made it so appealing to designers and academics. On the other, it also meant that AT&T treated it as a potential product in the emerging software industry, which included new legal questions from a changing intellectual-property regime, novel forms of marketing and distribution, and new methods of developing, supporting, and distributing software. + +Despite this borderline status, UNIX was a phenomenal success. The reasons why UNIX was so popular are manifold; it was widely admired aesthetically, for its size, and for its clever design and tools. But the fact that it spread so widely and quickly is testament also to the existing community of eager computer scientists and engineers (and a few amateurs) onto which it was bootstrapped, users for whom a powerful, flexible, low-cost, modifiable, and fast operating system was a revelation of sorts. It was an obvious alternative to the complex, poorly documented, buggy operating systems that routinely shipped standard with the machines that universities and research organizations purchased. "It worked," in other words. + +A key feature of the popularity of UNIX was the inclusion of the source code. When Bell Labs licensed UNIX, they usually provided a tape that contained the documentation (i.e., documentation that ,{[pg 128]}, was part of the system, not a paper technical manual external to it), a binary version of the software, and the source code for the software. The practice of distributing the source code encouraged people to maintain it, extend it, document it—and to contribute those changes to Thompson and Ritchie as well. By doing so, users developed an interest in maintaining and supporting the project precisely because it gave them an opportunity and the tools to use their computer creatively and flexibly. Such a globally distributed community of users organized primarily by their interest in maintaining an operating system is a precursor to the recursive public, albeit confined to the world of computer scientists and researchers with access to still relatively expensive machines. As such, UNIX was not only a widely shared piece of quasi-commercial software (i.e., distributed in some form other than through a price-based retail market), but also the first to systematically include the source code as part of that distribution as well, thus appealing more to academics and engineers.~{ Even in computer science, source code was rarely formally shared, and more likely presented in the form of theorems and proofs, or in various idealized higher-level languages such as Donald Knuth’s MIX language for presenting algorithms (Knuth, The Art of Computer Programming). Snippets of actual source code are much more likely to be found in printed form in handbooks, manuals, how-to guides, and other professional publications aimed at training programmers. }~ +={recursive public:precursors of} + +Throughout the 1970s, the low licensing fees, the inclusion of the source code, and its conceptual integrity meant that UNIX was ported to a remarkable number of other machines. In many ways, academics found it just as appealing, if not more, to be involved in the creation and improvement of a cutting-edge system by licensing and porting the software themselves, rather than by having it provided to them, without the source code, by a company. Peter Salus, for instance, suggests that people experienced the lack of support from Bell Labs as a kind of spur to develop and share their own fixes. The means by which source code was shared, and the norms and practices of sharing, porting, forking, and modifying source code were developed in this period as part of the development of UNIX itself—the technical design of the system facilitates and in some cases mirrors the norms and practices of sharing that developed: operating systems and social systems.~{ The simultaneous development of the operating system and the norms for creating, sharing, documenting, and extending it are often referred to as the "UNIX philosophy." It includes the central idea that one should build on the ideas (software) of others (see Gancarz, The Unix Philosophy and Linux and the UNIX Philosophy). See also Raymond, The Art of UNIX Programming. }~ +={Salus, Peter+6} + +2~ Sharing UNIX + +Over the course of 1974-77 the spread and porting of UNIX was phenomenal for an operating system that had no formal system of distribution and no official support from the company that owned it, and that evolved in a piecemeal way through the contributions ,{[pg 129]}, of people from around the world. By 1975, a user’s group had developed: USENIX.~{ Bell Labs threatened the nascent UNIX NEWS newsletter with trademark infringement, so "USENIX" was a concession that harkened back to the original USE users’ group for DEC machines, but avoided explicitly using the name UNIX. Libes and Ressler, Life with UNIX, 9. }~ UNIX had spread to Canada, Europe, Australia, and Japan, and a number of new tools and applications were being both independently circulated and, significantly, included in the frequent releases by Bell Labs itself. All during this time, AT&T’s licensing department sought to find a balance between allowing this circulation and innovation to continue, and attempting to maintain trade-secret status for the software. UNIX was, by 1980, without a doubt the most widely and deeply understood trade secret in computing history. +={Free Software:passim;software tools+2;trade secret law;Usenix (user group)} + +The manner in which the circulation of and contribution to UNIX occurred is not well documented, but it includes both technical and pedagogical forms of sharing. On the technical side, distribution took a number of forms, both in resistance to AT&T’s attempts to control it and facilitated by its unusually liberal licensing of the software. On the pedagogical side, UNIX quickly became a paradigmatic object for computer-science students precisely because it was a working operating system that included the source code and that was simple enough to explore in a semester or two. +={sharing source code (component of Free Software):pedagogical aspects} + +In A Quarter Century of UNIX Salus provides a couple of key stories (from Ken Thompson and Lou Katz) about how exactly the technical sharing of UNIX worked, how sharing, porting, and forking can be distinguished, and how it was neither strictly legal nor deliberately illegal in this context. First, from Ken Thompson: "The first thing to realize is that the outside world ran on releases of UNIX (V4, V5, V6, V7) but we did not. Our view was a continuum. V5 was what we had at some point in time and was probably out of date simply by the activity required to put it in shape to export. After V6, I was preparing to go to Berkeley to teach for a year. I was putting together a system to take. Since it was almost a release, I made a diff with V6 [a tape containing only the differences between the last release and the one Ken was taking with him]. On the way to Berkeley I stopped by Urbana-Champaign to keep an eye on Greg Chesson. . . . I left the diff tape there and I told him that I wouldn’t mind if it got around."~{ Salus, A Quarter Century of Unix, 138. }~ +={diff (software tool)+2;Katz, Lou+3;sharing source code (component of Free Software):legal aspects+4|technical aspects+5} + +The need for a magnetic tape to "get around" marks the difference between the 1970s and the present: the distribution of software involved both the material transport of media and the digital copying of information. The desire to distribute bug fixes (the "diff " tape) resonates with the future emergence of Free Software: the ,{[pg 130]}, fact that others had fixed problems and contributed them back to Thompson and Ritchie produced an obligation to see that the fixes were shared as widely as possible, so that they in turn might be ported to new machines. Bell Labs, on the other hand, would have seen this through the lens of software development, requiring a new release, contract renegotiation, and a new license fee for a new version. Thompson’s notion of a "continuum," rather than a series of releases also marks the difference between the idea of an evolving common set of objects stewarded by multiple people in far-flung locales and the idea of a shrink-wrapped "productized" software package that was gaining ascendance as an economic commodity at the same time. When Thompson says "the outside world," he is referring not only to people outside of Bell Labs but to the way the world was seen from within Bell Labs by the lawyers and marketers who would create a new version. For the lawyers, the circulation of source code was a problem because it needed to be stabilized, not so much for commercial reasons as for legal ones—one license for one piece of software. Distributing updates, fixes, and especially new tools and additions written by people who were not employed by Bell Labs scrambled the legal clarity even while it strengthened the technical quality. Lou Katz makes this explicit. + +_1 A large number of bug fixes was collected, and rather than issue them one at a time, a collection tape ("the 50 fixes") was put together by Ken [the same "diff tape," presumably]. Some of the fixes were quite important, though I don’t remember any in particular. I suspect that a significant fraction of the fixes were actually done by non-Bell people. Ken tried to send it out, but the lawyers kept stalling and stalling and stalling. Finally, in complete disgust, someone "found a tape on Mountain Avenue" [the location of Bell Labs] which had the fixes. When the lawyers found out about it, they called every licensee and threatened them with dire consequences if they didn’t destroy the tape, after trying to find out how they got the tape. I would guess that no one would actually tell them how they came by the tape (I didn’t).~{ Ibid., emphasis added. }~ + +Distributing the fixes involved not just a power struggle between the engineers and management, but was in fact clearly motivated by the fact that, as Katz says, "a significant fraction of the fixes were done by non-Bell people." This meant two things: first, that there was an obvious incentive to return the updated system to these ,{[pg 131]}, people and to others; second, that it was not obvious that AT&T actually owned or could claim rights over these fixes—or, if they did, they needed to cover their legal tracks, which perhaps in part explains the stalling and threatening of the lawyers, who may have been buying time to make a "legal" version, with the proper permissions. + +The struggle should be seen not as one between the rebel forces of UNIX development and the evil empire of lawyers and managers, but as a struggle between two modes of stabilizing the object known as UNIX. For the lawyers, stability implied finding ways to make UNIX look like a product that would meet the existing legal framework and the peculiar demands of being a regulated monopoly unable to freely compete with other computer manufacturers; the ownership of bits and pieces, ideas and contributions had to be strictly accountable. For the programmers, stability came through redistributing the most up-to-date operating system and sharing all innovations with all users so that new innovations might also be portable. The lawyers saw urgency in making UNIX legally stable; the engineers saw urgency in making UNIX technically stable and compatible with itself, that is, to prevent the forking of UNIX, the death knell for portability. The tension between achieving legal stability of the object and promoting its technical portability and stability is one that has repeated throughout the life of UNIX and its derivatives—and that has ramifications in other areas as well. +={ontology:of UNIX operating system+2} + +The identity and boundaries of UNIX were thus intricately formed through its sharing and distribution. Sharing produced its own form of moral and technical order. Troubling questions emerged immediately: were the versions that had been fixed, extended, and expanded still UNIX, and hence still under the control of AT&T? Or were the differences great enough that something else (not-UNIX) was emerging? If a tape full of fixes, contributed by non-Bell employees, was circulated to people who had licensed UNIX, and those fixes changed the system, was it still UNIX? Was it still UNIX in a legal sense or in a technical sense or both? While these questions might seem relatively scholastic, the history of the development of UNIX suggests something far more interesting: just about every possible modification has been made, legally and technically, but the concept of UNIX has remained remarkably stable. +={moral and technical order} + +% ,{[pg 132]}, + +2~ Porting UNIX + +Technical portability accounts for only part of UNIX’s success. As a pedagogical resource, UNIX quickly became an indispensable tool for academics around the world. As it was installed and improved, it was taught and learned. The fact that UNIX spread first to university computer-science departments, and not to businesses, government, or nongovernmental organizations, meant that it also became part of the core pedagogical practice of a generation of programmers and computer scientists; over the course of the 1970s and 1980s, UNIX came to exemplify the very concept of an operating system, especially time-shared, multi-user operating systems. Two stories describe the porting of UNIX from machines to minds and illustrate the practice as it developed and how it intersected with the technical and legal attempts to stabilize UNIX as an object: the story of John Lions’s Commentary on Unix 6th Edition and the story of Andrew Tanenbaum’s Minix. +={Lions, John+10;Tanenbaum, Andrew+1;UNIX philosophy+1} + +The development of a pedagogical UNIX lent a new stability to the concept of UNIX as opposed to its stability as a body of source code or as a legal entity. The porting of UNIX was so successful that even in cases where a ported version of UNIX shares none of the same source code as the original, it is still considered UNIX. The monstrous and promiscuous nature of UNIX is most clear in the stories of Lions and Tanenbaum, especially when contrasted with the commercial, legal, and technical integrity of something like Microsoft Windows, which generally exists in only a small number of forms (NT, ME, XP, 95, 98, etc.), possessing carefully controlled source code, immured in legal protection, and distributed only through sales and service packs to customers or personal-computer manufacturers. While Windows is much more widely used than UNIX, it is far from having become a paradigmatic pedagogical object; its integrity is predominantly legal, not technical or pedagogical. Or, in pedagogical terms, Windows is to fish as UNIX is to fishing lessons. +={Microsoft:Windows operating system;sharing source code (component of Free Software):pedagogical aspects+9;UNIX operating system:Windows operating system vs.} + +Lions’s Commentary is also known as "the most photocopied document in computer science." Lions was a researcher and senior lecturer at the University of New South Wales in the early 1970s; after reading the first paper by Ritchie and Thompson on UNIX, he convinced his colleagues to purchase a license from AT&T.~{ Ken Thompson and Dennis Ritchie, "The Unix Operating System," Bell Systems Technical Journal (1974). }~ Lions, like many researchers, was impressed by the quality of the system, and he was, like all of the UNIX users of that period, intimately ,{[pg 133]}, familiar with the UNIX source code—a necessity in order to install, run, or repair it. Lions began using the system to teach his classes on operating systems, and in the course of doing so he produced a textbook of sorts, which consisted of the entire source code of UNIX version 6 (V6), along with elaborate, line-by-line commentary and explanation. The value of this textbook can hardly be underestimated. Access to machines and software that could be used to understand how a real system worked was very limited: "Real computers with real operating systems were locked up in machine rooms and committed to processing twenty four hours a day. UNIX changed that."~{ Greg Rose, quoted in Lions, Commentary, n.p. }~ Berny Goodheart, in an appreciation of Lions’s Commentary, reiterated this sense of the practical usefulness of the source code and commentary: "It is important to understand the significance of John’s work at that time: for students studying computer science in the 1970s, complex issues such as process scheduling, security, synchronization, file systems and other concepts were beyond normal comprehension and were extremely difficult to teach—there simply wasn’t anything available with enough accessibility for students to use as a case study. Instead a student’s discipline in computer science was earned by punching holes in cards, collecting fan-fold paper printouts, and so on. Basically, a computer operating system in that era was considered to be a huge chunk of inaccessible proprietary code."~{ Lions, Commentary, n.p. }~ +={intellectual property+3} + +Lions’s commentary was a unique document in the world of computer science, containing a kind of key to learning about a central component of the computer, one that very few people would have had access to in the 1970s. It shows how UNIX was ported not only to machines (which were scarce) but also to the minds of young researchers and student programmers (which were plentiful). Several generations of both academic computer scientists and students who went on to work for computer or software corporations were trained on photocopies of UNIX source code, with a whiff of toner and illicit circulation: a distributed operating system in the textual sense. + +Unfortunately, Commentary was also legally restricted in its distribution. AT&T and Western Electric, in hopes that they could maintain trade-secret status for UNIX, allowed only very limited circulation of the book. At first, Lions was given permission to distribute single copies only to people who already possessed a license for UNIX V6; later Bell Labs itself would distribute Commentary ,{[pg 134]}, briefly, but only to licensed users, and not for sale, distribution, or copying. Nonetheless, nearly everyone seems to have possessed a dog-eared, nth-generation copy. Peter Reintjes writes, "We soon came into possession of what looked like a fifth generation photocopy and someone who shall remain nameless spent all night in the copier room spawning a sixth, an act expressly forbidden by a carefully worded disclaimer on the first page. Four remarkable things were happening at the same time. One, we had discovered the first piece of software that would inspire rather than annoy us; two, we had acquired what amounted to a literary criticism of that computer software; three, we were making the single most significant advancement of our education in computer science by actually reading an entire operating system; and four, we were breaking the law."~{ Ibid. }~ +={trade secret law+1} + +Thus, these generations of computer-science students and academics shared a secret—a trade secret become open secret. Every student who learned the essentials of the UNIX operating system from a photocopy of Lions’s commentary, also learned about AT&T’s attempt to control its legal distribution on the front cover of their textbook. The parallel development of photocopying has a nice resonance here; together with home cassette taping of music and the introduction of the video-cassette recorder, photocopying helped drive the changes to copyright law adopted in 1976. +={copyright:changes in 1976} + +Thirty years later, and long after the source code in it had been completely replaced, Lions’s Commentary is still widely admired by geeks. Even though Free Software has come full circle in providing students with an actual operating system that can be legally studied, taught, copied, and implemented, the kind of "literary criticism" that Lions’s work represents is still extremely rare; even reading obsolete code with clear commentary is one of the few ways to truly understand the design elements and clever implementations that made the UNIX operating system so different from its predecessors and even many of its successors, few, if any of which have been so successfully ported to the minds of so many students. +={design+2} + +Lions’s Commentary contributed to the creation of a worldwide community of people whose connection to each other was formed by a body of source code, both in its implemented form and in its textual, photocopied form. This nascent recursive public not only understood itself as belonging to a technical elite which was constituted by its creation, understanding, and promotion of a particular ,{[pg 135]}, technical tool, but also recognized itself as "breaking the law," a community constituted in opposition to forms of power that governed the circulation, distribution, modification, and creation of the very tools they were learning to make as part of their vocation. The material connection shared around the world by UNIX-loving geeks to their source code is not a mere technical experience, but a social and legal one as well. +={recursive public+6} + +Lions was not the only researcher to recognize that teaching the source code was the swiftest route to comprehension. The other story of the circulation of source code concerns Andrew Tanenbaum, a well-respected computer scientist and an author of standard textbooks on computer architecture, operating systems, and networking.~{ Tanenbaum’s two most famous textbooks are Operating Systems and Computer Networks, which have seen three and four editions respectively. }~ In the 1970s Tanenbaum had also used UNIX as a teaching tool in classes at the Vrije Universiteit, in Amsterdam. Because the source code was distributed with the binary code, he could have his students explore directly the implementations of the system, and he often used the source code and the Lions book in his classes. But, according to his Operating Systems: Design and Implementation (1987), "When AT&T released Version 7 [ca. 1979], it began to realize that UNIX was a valuable commercial product, so it issued Version 7 with a license that prohibited the source code from being studied in courses, in order to avoid endangering its status as a trade secret. Many universities complied by simply dropping the study of UNIX, and teaching only theory" (13). For Tanenbaum, this was an unacceptable alternative—but so, apparently, was continuing to break the law by teaching UNIX in his courses. And so he proceeded to create a completely new UNIX-like operating system that used not a single line of AT&T source code. He called his creation Minix. It was a stripped-down version intended to run on personal computers (IBM PCs), and to be distributed along with the textbook Operating Systems, published by Prentice Hall.~{ Tanenbaum was not the only person to follow this route. The other acknowledged giant in the computer-science textbook world, Douglas Comer, created Xinu and Xinu-PC (UNIX spelled backwards) in Operating Systems Design in 1984. }~ +={Minix (operating system)+2;Tanenbaum, Andrew: Minix and+5;textbooks:on operating systems and networks+1;UNIX operating system: as commercial product} + +Minix became as widely used in the 1980s as a teaching tool as Lions’s source code had been in the 1970s. According to Tanenbaum, the Usenet group comp.os.minix had reached 40,000 members by the late 1980s, and he was receiving constant suggestions for changes and improvements to the operating system. His own commitment to teaching meant that he incorporated few of these suggestions, an effort to keep the system simple enough to be printed in a textbook and understood by undergraduates. Minix ,{[pg 136]}, was freely available as source code, and it was a fully functioning operating system, even a potential alternative to UNIX that would run on a personal computer. Here was a clear example of the conceptual integrity of UNIX being communicated to another generation of computer-science students: Tanenbaum’s textbook is not called "UNIX Operating Systems"—it is called Operating Systems. The clear implication is that UNIX represented the clearest example of the principles that should guide the creation of any operating system: it was, for all intents and purposes, state of the art even twenty years after it was first conceived. +={ontology:of UNIX operating system} + +Minix was not commercial software, but nor was it Free Software. It was copyrighted and controlled by Tanenbaum’s publisher, Prentice Hall. Because it used no AT&T source code, Minix was also legally independent, a legal object of its own. The fact that it was intended to be legally distinct from, yet conceptually true to UNIX is a clear indication of the kinds of tensions that govern the creation and sharing of source code. The ironic apotheosis of Minix as the pedagogical gold standard for studying UNIX came in 1991-92, when a young Linus Torvalds created a "fork" of Minix, also rewritten from scratch, that would go on to become the paradigmatic piece of Free Software: Linux. Tanenbaum’s purpose for Minix was that it remain a pedagogically useful operating system—small, concise, and illustrative—whereas Torvalds wanted to extend and expand his version of Minix to take full advantage of the kinds of hardware being produced in the 1990s. Both, however, were committed to source-code visibility and sharing as the swiftest route to complete comprehension of operating-systems principles. +={Linux (Free Software project)|origins in Minix} + +2~ Forking UNIX +={forking+13} + +Tanenbaum’s need to produce Minix was driven by a desire to share the source code of UNIX with students, a desire AT&T was manifestly uncomfortable with and which threatened the trade-secret status of their property. The fact that Minix might be called a fork of UNIX is a key aspect of the political economy of operating systems and social systems. Forking generally refers to the creation of new, modified source code from an original base of source code, resulting in two distinct programs with the same parent. Whereas the modification of an engine results only in a modified engine, the ,{[pg 137]}, modification of source code implies differentiation and reproduction, because of the ease with which it can be copied. +={Minix (operating system)+1;sharing source code (component of Free Software)+15;trade secret law+1} + +How could Minix—a complete rewrite—still be considered the same object? Considered solely from the perspective of trade-secret law, the two objects were distinct, though from the perspective of copyright there was perhaps a case for infringement, although AT&T did not rely on copyright as much as on trade secret. From a technical perspective, the functions and processes that the software accomplishes are the same, but the means by which they are coded to do so are different. And from a pedagogical standpoint, the two are identical—they exemplify certain core features of an operating system (file-system structure, memory paging, process management)—all the rest is optimization, or bells and whistles. Understanding the nature of forking requires also that UNIX be understood from a social perspective, that is, from the perspective of an operating system created and modified by user-developers around the world according to particular and partial demands. It forms the basis for the emergence of a robust recursive public. + +One of the more important instances of the forking of UNIX’s perambulatory source code and the developing community of UNIX co-developers is the story of the Berkeley Software Distribution and its incorporation of the TCP/IP protocols. In 1975 Ken Thompson took a sabbatical in his hometown of Berkeley, California, where he helped members of the computer-science department with their installations of UNIX, arriving with V6 and the "50 bug fixes" diff tape. Ken had begun work on a compiler for the Pascal programming language that would run on UNIX, and this work was taken up by two young graduate students: Bill Joy and Chuck Hartley. (Joy would later co-found Sun Microsystems, one of the most successful UNIX-based workstation companies in the history of the industry.) +={diff (software tool);Joy, Bill+9;Sun Microsystems;Thompson, Ken+1;Pascal (programming language)+2;protocols: distinguished from standards and implementation;Open Systems Interconnection (OSI):TCP/IP+6;TCP/IP (Transmission Control Protocol/Internet Protocol):included in BSD+6} + +Joy, above nearly all others, enthusiastically participated in the informal distribution of source code. With a popular and well-built Pascal system, and a new text editor called ex (later vi), he created the Berkeley Software Distribution (BSD), a set of tools that could be used in combination with the UNIX operating system. They were extensions to the original UNIX operating system, but not a complete, rewritten version that might replace it. By all accounts, Joy served as a kind of one-man software-distribution house, making tapes and posting them, taking orders and cashing checks—all in ,{[pg 138]}, addition to creating software.~{ McKusick, "Twenty Years of Berkeley Unix," 32. }~ UNIX users around the world soon learned of this valuable set of extensions to the system, and before long, many were differentiating between AT&T UNIX and BSD UNIX. +={AT&T:version of UNIX+1;Berkeley Systems Distribution (BSD) (version of UNIX)+9;differentiation of software;text editors+1;UNIX operating system:relationship to Arpanet+7;vi (text editor)+1} + +According to Don Libes, Bell Labs allowed Berkeley to distribute its extensions to UNIX so long as the recipients also had a license from Bell Labs for the original UNIX (an arrangement similar to the one that governed Lions’s Commentary).~{ Libes and Ressler, Life with UNIX, 16-17. }~ From about 1976 until about 1981, BSD slowly became an independent distribution—indeed, a complete version of UNIX—well-known for the vi editor and the Pascal compiler, but also for the addition of virtual memory and its implementation on DEC’s VAX machines.~{ A recent court case between the Utah-based SCO—the current owner of the legal rights to the original UNIX source code—and IBM raised yet again the question of how much of the original UNIX source code exists in the BSD distribution. SCO alleges that IBM (and Linus Torvalds) inserted SCO-owned UNIX source code into the Linux kernel. However, the incredibly circuitous route of the "original" source code makes these claims hard to ferret out: it was developed at Bell Labs, licensed to multiple universities, used as a basis for BSD, sold to an earlier version of the company SCO (then known as the Santa Cruz Operation), which created a version called Xenix in cooperation with Microsoft. See the diagram by Eric Lévénez at http://www.levenez.com/unix/. For more detail on this case, see www.groklaw.com. }~ It should be clear that the unusual quasi-commercial status of AT&T’s UNIX allowed for this situation in a way that a fully commercial computer corporation would never have allowed. Consider, for instance, the fact that many UNIX users—students at a university, for instance—could not essentially know whether they were using an AT&T product or something called BSD UNIX created at Berkeley. The operating system functioned in the same way and, except for the presence of copyright notices that occasionally flashed on the screen, did not make any show of asserting its brand identity (that would come later, in the 1980s). Whereas a commercial computer manufacturer would have allowed something like BSD only if it were incorporated into and distributed as a single, marketable, and identifiable product with a clever name, AT&T turned something of a blind eye to the proliferation and spread of AT&T UNIX and the result were forks in the project: distinct bodies of source code, each an instance of something called UNIX. + +As BSD developed, it gained different kinds of functionality than the UNIX from which it was spawned. The most significant development was the inclusion of code that allowed it to connect computers to the Arpanet, using the TCP/IP protocols designed by Vinton Cerf and Robert Kahn. The TCP/IP protocols were a key feature of the Arpanet, overseen by the Information Processing and Techniques Office (IPTO) of the Defense Advanced Research Projects Agency (DARPA) from its inception in 1967 until about 1977. The goal of the protocols was to allow different networks, each with its own machines and administrative boundaries, to be connected to each other.~{ See Vinton G. Cerf and Robert Kahn, "A Protocol for Packet Network Interconnection." For the history, see Abbate, Inventing the Internet; Norberg and O’Neill, A History of the Information Techniques Processing Office. Also see chapters 1 and 5 herein for more detail on the role of these protocols and the RFC process. }~ Although there is a common heritage—in the form of J. C. R. Licklider—which ties the imagination of the time-sharing operating ,{[pg 139]}, system to the creation of the "galactic network," the Arpanet initially developed completely independent of UNIX.~{ Waldrop, The Dream Machine, chaps. 5 and 6. }~ As a time-sharing operating system, UNIX was meant to allow the sharing of resources on a single computer, whether mainframe or minicomputer, but it was not initially intended to be connected to a network of other computers running UNIX, as is the case today.~{ The exception being a not unimportant tool called Unix to Unix Copy Protocol, or uucp, which was widely used to transmit data by phone and formed the bases for the creation of the Usenet. See Hauben and Hauben, Netizens. }~ The goal of Arpanet, by contrast, was explicitly to achieve the sharing of resources located on diverse machines across diverse networks. +={Arpanet (network)+7;Cerf, Vinton;Defense Advanced Research Projects Agency (DARPA)+7;Kahn, Robert;Licklider, J. C. R.} + +To achieve the benefits of TCP/IP, the resources needed to be implemented in all of the different operating systems that were connected to the Arpanet—whatever operating system and machine happened to be in use at each of the nodes. However, by 1977, the original machines used on the network were outdated and increasingly difficult to maintain and, according to Kirk McKusick, the greatest expense was that of porting the old protocol software to new machines. Hence, IPTO decided to pursue in part a strategy of achieving coordination at the operating-system level, and they chose UNIX as one of the core platforms on which to standardize. In short, they had seen the light of portability. In about 1978 IPTO granted a contract to Bolt, Beranek, and Newman (BBN), one of the original Arpanet contractors, to integrate the TCP/IP protocols into the UNIX operating system. +={Bolt, Beranek, and Newman (BBN)} + +But then something odd happened, according to Salus: "An initial prototype was done by BBN and given to Berkeley. Bill [Joy] immediately started hacking on it because it would only run an Ethernet at about 56K/sec utilizing 100% of the CPU on a 750. . . . Bill lobotomized the code and increased its performance to on the order of 700KB/sec. This caused some consternation with BBN when they came in with their ‘finished’ version, and Bill wouldn’t accept it. There were battles for years after, about which version would be in the system. The Berkeley version ultimately won."~{ Salus, A Quarter Century of UNIX, 161. }~ +={Salus, Peter} + +Although it is not clear, it appears BBN intended to give Joy the code in order to include it in his BSD version of UNIX for distribution, and that Joy and collaborators intended to cooperate with Rob Gurwitz of BBN on a final implementation, but Berkeley insisted on "improving" the code to make it perform more to their needs, and BBN apparently dissented from this.~{ TCP/IP Digest 1.6 (11 November 1981) contains Joy’s explanation of Berkeley’s intentions (Message-ID: { anews.aucbvax.5236 }http://groups.google.com/groups?selm=anews.aucbvax.5236 ). }~ One result of this scuffle between BSD and BBN was a genuine fork: two bodies of code that did the same thing, competing with each other to become the standard UNIX implementation of TCP/IP. Here, then, was a ,{[pg 140]}, case of sharing source code that led to the creation of different versions of software—sharing without collaboration. Some sites used the BBN code, some used the Berkeley code. + +Forking, however, does not imply permanent divergence, and the continual improvement, porting, and sharing of software can have odd consequences when forks occur. On the one hand, there are particular pieces of source code: they must be identifiable and exact, and prepended with a copyright notice, as was the case of the Berkeley code, which was famously and vigorously policed by the University of California regents, who allowed for a very liberal distribution of BSD code on the condition that the copyright notice was retained. On the other hand, there are particular named collections of code that work together (e.g., UNIX™, or DARPA-approved UNIX, or later, Certified Open Source [sm]) and are often identified by a trademark symbol intended, legally speaking, to differentiate products, not to assert ownership of particular instances of a product. +={BSD License+2;Copyleft licenses (component of Free Software);intellectual property+2;trademark law} + +The odd consequence is this: Bill Joy’s specific TCP/IP code was incorporated not only into BSD UNIX, but also into other versions of UNIX, including the UNIX distributed by AT&T (which had originally licensed UNIX to Berkeley) with the Berkeley copyright notice removed. This bizarre, tangled bank of licenses and code resulted in a famous suit and countersuit between AT&T and Berkeley, in which the intricacies of this situation were sorted out.~{ See Andrew Leonard, "BSD Unix: Power to the People, from the Code," Salon, 16 May 2000, http://archive.salon.com/tech/fsp/2000/05/16/chapter_2_part_one/. }~ An innocent bystander, expecting UNIX to be a single thing, might be surprised to find that it takes different forms for reasons that are all but impossible to identify, but the cause of which is clear: different versions of sharing in conflict with one another; different moral and technical imaginations of order that result in complex entanglements of value and code. +={moral and technical order+5} + +The BSD fork of UNIX (and the subfork of TCP/IP) was only one of many to come. By the early 1980s, a proliferation of UNIX forks had emerged and would be followed shortly by a very robust commercialization. At the same time, the circulation of source code started to slow, as corporations began to compete by adding features and creating hardware specifically designed to run UNIX (such as the Sun Sparc workstation and the Solaris operating system, the result of Joy’s commercialization of BSD in the 1980s). The question of how to make all of these versions work together eventually became the subject of the open-systems discussions that would dominate the workstation and networking sectors of the computer ,{[pg 141]}, market from the early 1980s to 1993, when the dual success of Windows NT and the arrival of the Internet into public consciousness changed the fortunes of the UNIX industry. +={Microsoft:Windows operating system;Solaris (operating system);Sparc (computer workstation)} + +A second, and more important, effect of the struggle between BBN and BSD was simply the widespread adoption of the TCP/IP protocols. An estimated 98 percent of computer-science departments in the United States and many such departments around the world incorporated the TCP/IP protocols into their UNIX systems and gained instant access to Arpanet.~{ Norberg and O’Neill, A History of the Information Techniques Processing Office, 184-85. They cite Comer, Internetworking with TCP/IP, 6 for the figure. }~ The fact that this occurred when it did is important: a few years later, during the era of the commercialization of UNIX, these protocols might very well not have been widely implemented (or more likely implemented in incompatible, nonstandard forms) by manufacturers, whereas before 1983, university computer scientists saw every benefit in doing so if it meant they could easily connect to the largest single computer network on the planet. The large, already functioning, relatively standard implementation of TCP/IP on UNIX (and the ability to look at the source code) gave these protocols a tremendous advantage in terms of their survival and success as the basis of a global and singular network. + +2~ Conclusion + +The UNIX operating system is not just a technical achievement; it is the creation of a set of norms for sharing source code in an unusual environment: quasi-commercial, quasi-academic, networked, and planetwide. Sharing UNIX source code has taken three basic forms: porting source code (transferring it from one machine to another); teaching source code, or "porting" it to students in a pedagogical setting where the use of an actual working operating system vastly facilitates the teaching of theory and concepts; and forking source code (modifying the existing source code to do something new or different). This play of proliferation and differentiation is essential to the remarkably stable identity of UNIX, but that identity exists in multiple forms: technical (as a functioning, self-compatible operating system), legal (as a license-circumscribed version subject to intellectual property and commercial law), and pedagogical (as a conceptual exemplar, the paradigm of an operating system). Source code shared in this manner is essentially unlike any other kind of ,{[pg 142]}, source code in the world of computers, whether academic or commercial. It raises troubling questions about standardization, about control and audit, and about legitimacy that haunts not only UNIX but the Internet and its various "open" protocols as well. +={differentiation of software+1;ontology: of UNIX operating system+1;pedagogy: operating systems and+1;proliferation of software+1;openness (component of Free Software);standards processes} + +Sharing source code in Free Software looks the way it does today because of UNIX. But UNIX looks the way it does not because of the inventive genius of Thompson and Ritchie, or the marketing and management brilliance of AT&T, but because sharing produces its own kind of order: operating systems and social systems. The fact that geeks are wont to speak of "the UNIX philosophy" means that UNIX is not just an operating system but a way of organizing the complex relations of life and work through technical means; a way of charting and breaching the boundaries between the academic, the aesthetic, and the commercial; a way of implementing ideas of a moral and technical order. What’s more, as source code comes to include more and more of the activities of everyday communication and creation—as it comes to replace writing and supplement thinking—the genealogy of its portability and the history of its forking will illuminate the kinds of order emerging in practices and technologies far removed from operating systems—but tied intimately to the UNIX philosophy. +={Ritchie, Dennis;Thompson, Ken;UNIX philosophy} + +1~ 5. Conceiving Open Systems +={Open Systems+99;openness (component of Free Software)+28} + +% ,{[pg 143]}, + +_1 The great thing about standards is that there are so many to choose from.~{ Quoted in Libes and Ressler, Life with UNIX, 67, and also in Critchley and Batty, Open Systems, 17. I first heard it in an interview with Sean Doyle in 1998. }~ +={standards+2} + +Openness is an unruly concept. While free tends toward ambiguity (free as in speech, or free as in beer?), open tends toward obfuscation. Everyone claims to be open, everyone has something to share, everyone agrees that being open is the obvious thing to do—after all, openness is the other half of "open source"—but for all its obviousness, being "open" is perhaps the most complex component of Free Software. It is never quite clear whether being open is a means or an end. Worse, the opposite of open in this case (specifically, "open systems") is not closed, but "proprietary"—signaling the complicated imbrication of the technical, the legal, and the commercial. +={proprietary systems:open vs.+2} + +In this chapter I tell the story of the contest over the meaning of "open systems" from 1980 to 1993, a contest to create a simultaneously moral and technical infrastructure within the computer ,{[pg 144]}, industry.~{ Moral in this usage signals the "moral and social order" I explored through the concept of social imaginaries in chapter 1. Or, in the Scottish Enlightenment sense of Adam Smith, it points to the right organization and relations of exchange among humans. }~ The infrastructure in question includes technical components—the UNIX operating system and the TCP/IP protocols of the Internet as open systems—but it also includes "moral" components, including the demand for structures of fair and open competition, antimonopoly and open markets, and open-standards processes for high-tech networked computers and software in the 1980s.~{ There is, of course, a relatively robust discourse of open systems in biology, sociology, systems theory, and cybernetics; however, that meaning of open systems is more or less completely distinct from what openness and open systems came to mean in the computer industry in the period book-ended by the arrivals of the personal computer and the explosion of the Internet (ca. 1980-93). One relevant overlap between these two meanings can be found in the work of Carl Hewitt at the MIT Media Lab and in the interest in "agorics" taken by K. Eric Drexler, Bernardo Huberman, and Mark S. Miller. See Huberman, The Ecology of Computation. }~ By moral, I mean imaginations of the proper order of collective political and commercial action; referring to much more than simply how individuals should act, moral signifies a vision of how economy and society should be ordered collectively. +={infrastructure;moral and technical order+3;monopoly+1;} + +The open-systems story is also a story of the blind spot of open systems—in that blind spot is intellectual property. The story reveals a tension between incompatible moral-technical orders: on the one hand, the promise of multiple manufacturers and corporations creating interoperable components and selling them in an open, heterogeneous market; on the other, an intellectual-property system that encouraged jealous guarding and secrecy, and granted monopoly status to source code, designs, and ideas in order to differentiate products and promote competition. The tension proved irresolvable: without shared source code, for instance, interoperable operating systems are impossible. Without interoperable operating systems, internetworking and portable applications are impossible. Without portable applications that can run on any system, open markets are impossible. Without open markets, monopoly power reigns. +={intellectual property;interoperability+21;openness (component of Free Software):intellectual property and} + +Standardization was at the heart of the contest, but by whom and by what means was never resolved. The dream of open systems, pursued in an entirely unregulated industry, resulted in a complicated experiment in novel forms of standardization and cooperation. The creation of a "standard" operating system based on UNIX is the story of a failure, a kind of "figuring out" gone haywire, which resulted in huge consortia of computer manufacturers attempting to work together and compete with each other at the same time. Meanwhile, the successful creation of a "standard" networking protocol—known as the Open Systems Interconnection Reference Model (OSI)—is a story of failure that hides a larger success; OSI was eclipsed in the same period by the rapid and ad hoc adoption of the Transmission Control Protocol/Internet Protocol (TCP/IP), which used a radically different standardization process and which succeeded for a number of surprising reasons, allowing the Internet ,{[pg 145]}, to take the form it did in the 1990s and ultimately exemplifying the moral-technical imaginary of a recursive public—and one at the heart of the practices of Free Software. +={figuring out;Open Systems Interconnection (OSI):as reference model;Openness (component of Free Software):standardization and;protocols:Open Systems Interconnection (OSI)|TCP/IP;standards organizations;TCP/IP (Transmission Control Protocol/Internet Protocol)} + +The conceiving of openness, which is the central plot of these two stories, has become an essential component of the contemporary practice and power of Free Software. These early battles created a kind of widespread readiness for Free Software in the 1990s, a recognition of Free Software as a removal of open systems’ blind spot, as much as an exploitation of its power. The geek ideal of openness and a moral-technical order (the one that made Napster so significant an event) was forged in the era of open systems; without this concrete historical conception of how to maintain openness in technical and moral terms, the recursive public of geeks would be just another hierarchical closed organization—a corporation manqué—and not an independent public serving as a check on the kinds of destructive power that dominated the open-systems contest. +={Napster} + +2~ Hopelessly Plural + +Big iron, silos, legacy systems, turnkey systems, dinosaurs, mainframes: with the benefit of hindsight, the computer industry of the 1960s to the 1980s appears to be backward and closed, to have literally painted itself into a corner, as an early Intel advertisement suggests (figure 3). Contemporary observers who show disgust and impatience with the form that computers took in this era are without fail supporters of open systems and opponents of proprietary systems that "lock in" customers to specific vendors and create artificial demands for support, integration, and management of resources. Open systems (were it allowed to flourish) would solve all these problems. +={Intel (corporation)+2;proprietary systems: lock-in and;mainframes+4} + +Given the promise of a "general-purpose computer," it should seem ironic at best that open systems needed to be created. But the general-purpose computer never came into being. We do not live in the world of The Computer, but in a world of computers: myriad, incompatible, specific machines. The design of specialized machines (or "architectures") was, and still is, key to a competitive industry in computers. It required CPUs and components and associated software that could be clearly qualified and marketed ,{[pg 146]}, ,{[pg 147]}, as distinct products: the DEC PDP-11 or the IBM 360 or the CDC 6600. On the Fordist model of automobile production, the computer industry’s mission was to render desired functions (scientific calculation, bookkeeping, reservations management) in a large box with a button on it (or a very large number of buttons on increasingly smaller boxes). Despite the theoretical possibility, such computers were not designed to do anything, but, rather, to do specific kinds of calculations exceedingly well. They were objects customized to particular markets. +={Digital Equipment Corporation (corporation)+1;International Business Machines (IBM)+1} + +{ 2bits_05_03-100.png }image ~[* Open systems is the solution to painting yourself into a corner. Intel advertisement, Wall Street Journal, 30 May 1984. ]~ + +% image placed under paragraph + +The marketing strategy was therefore extremely stable from about 1955 to about 1980: identify customers with computing needs, build a computer to serve them, provide them with all of the equipment, software, support, or peripherals they need to do the job—and charge a large amount. Organizationally speaking, it was an industry dominated by "IBM and the seven dwarfs": Hewlett-Packard, Honeywell, Control Data, General Electric, NCR, RCA, Univac, and Burroughs, with a few upstarts like DEC in the wings. + +By the 1980s, however, a certain inversion had happened. Computers had become smaller and faster; there were more and more of them, and it was becoming increasingly clear to the "big iron" manufacturers that what was most valuable to users was the information they generated, not the machines that did the generating. Such a realization, so the story goes, leads to a demand for interchangeability, interoperability, information sharing, and networking. It also presents the nightmarish problems of conversion between a bewildering, heterogeneous, and rapidly growing array of hardware, software, protocols, and systems. As one conference paper on the subject of evaluating open systems put it, "At some point a large enterprise will look around and see a huge amount of equipment and software that will not work together. Most importantly, the information stored on these diverse platforms is not being shared, leading to unnecessary duplication and lost profit."~{ Keves, "Open Systems Formal Evaluation Process," 87. }~ +={microcomputers+2} + +Open systems emerged in the 1980s as the name of the solution to this problem: an approach to the design of systems that, if all participants were to adopt it, would lead to widely interoperable, integrated machines that could send, store, process, and receive the user’s information. In marketing and public-relations terms, it would provide "seamless integration." +={standards:as form of competition+1} + +In theory, open systems was simply a question of standards adoption. For instance, if all the manufacturers of UNIX systems could ,{[pg 148]}, be convinced to adopt the same basic standard for the operating system, then seamless integration would naturally follow as all the various applications could be written once to run on any variant UNIX system, regardless of which company made it. In reality, such a standard was far from obvious, difficult to create, and even more difficult to enforce. As such, the meaning of open systems was "hopelessly plural," and the term came to mean an incredibly diverse array of things. + +"Openness" is precisely the kind of concept that wavers between end and means. Is openness good in itself, or is openness a means to achieve something else—and if so what? Who wants to achieve openness, and for what purpose? Is openness a goal? Or is it a means by which a different goal—say, "interoperability" or "integration"—is achieved? Whose goals are these, and who sets them? Are the goals of corporations different from or at odds with the goals of university researchers or government officials? Are there large central visions to which the activities of all are ultimately subordinate? +={openness (component of Free Software):goals of} + +Between 1980 and 1993, no person or company or computer industry consortium explicitly set openness as the goal that organizations, corporations, or programmers should aim at, but, by the same token, hardly anyone dissented from the demand for openness. As such, it appears clearly as a kind of cultural imperative, reflecting a longstanding social imaginary with roots in liberal democratic notions, versions of a free market and ideals of the free exchange of knowledge, but confronting changed technical conditions that bring the moral ideas of order into relief, and into question. +={social imaginary} + +In the 1980s everyone seemed to want some kind of openness, whether among manufacturers or customers, from General Motors to the armed forces.~{ General Motors stirred strong interest in open systems by creating, in 1985, its Manufacturing Automation Protocol (MAP), which was built on UNIX. At the time, General Motors was the second-largest purchaser of computer equipment after the government. The Department of Defense and the U.S. Air Force also adopted and required POSIX-compliant UNIX systems early on. }~ The debates, both rhetorical and technical, about the meaning of open systems have produced a slough of writings, largely directed at corporate IT managers and CIOs. For instance, Terry A. Critchley and K. C. Batty, the authors of Open Systems: The Reality (1993), claim to have collected over a hundred definitions of open systems. The definitions stress different aspects—from interoperability of heterogeneous machines, to compatibility of different applications, to portability of operating systems, to legitimate standards with open-interface definitions—including those that privilege ideologies of a free market, as does Bill Gates’s definition: "There’s nothing more open than the PC market. . . . [U]sers can choose the latest and greatest software." The range ,{[pg 149]}, of meanings was huge and oriented along multiple axes: what, to whom, how, and so on. Open systems could mean that source code was open to view or that only the specifications or interfaces were; it could mean "available to certain third parties" or "available to everyone, including competitors"; it could mean self-publishing, well-defined interfaces and application programming interfaces (APIs), or it could mean sticking to standards set by governments and professional societies. To cynics, it simply meant that the marketing department liked the word open and used it a lot. +={General Motors (GM)} + +One part of the definition, however, was both consistent and extremely important: the opposite of an "open system" was not a "closed system" but a "proprietary system." In industries other than networking and computing the word proprietary will most likely have a positive valence, as in "our exclusive proprietary technology." But in the context of computers and networks such a usage became anathema in the 1980s and 1990s; what customers reportedly wanted was a system that worked nicely with other systems, and that system had to be by definition open since no single company could provide all of the possible needs of a modern business or government agency. And even if it could, it shouldn’t be allowed to. For instance, "In the beginning was the word and the word was ‘proprietary.’ IBM showed the way, purveying machines that existed in splendid isolation. They could not be operated using programs written for any other computer; they could not communicate with the machines of competitors. If your company started out buying computers of various sizes from the International Business Machines Corporation because it was the biggest and best, you soon found yourself locked as securely to Big Blue as a manacled wretch in a medieval dungeon. When an IBM rival unveiled a technologically advanced product, you could only sigh; it might be years before the new technology showed up in the IBM line."~{ Paul Fusco, "The Gospel According to Joy," New York Times, 27 March 1988, Sunday Magazine, 28. }~ +={Joy, Bill+1;Openness (component of Free Software):proprietary vs.+2;openness (component of Free Software):definition of+7} + +With the exception of IBM (and to some extent its closest competitors: Hewlett-Packard, Burroughs, and Unisys), computer corporations in the 1980s sought to distance themselves from such "medieval" proprietary solutions (such talk also echoes that of usable pasts of the Protestant Reformation often used by geeks). New firms like Sun and Apollo deliberately berated the IBM model. Bill Joy reportedly called one of IBM’s new releases in the 1980s a "grazing dinosaur ‘with a truck outside pumping its bodily fluids through it.’"~{ "Dinosaur" entry, The Jargon File, http://catb.org/jargon/html/D/dinosaur.html. }~ +={allegory, of Protestant Reformation;Protestant Reformation;usable pasts} + +% ,{[pg 150]}, + +Open systems was never a simple solution though: all that complexity in hardware, software, components, and peripherals could only be solved by pushing hard for standards—even for a single standard. Or, to put it differently, during the 1980s, everyone agreed that open systems was a great idea, but no one agreed on which open systems. As one of the anonymous speakers in Open Systems: The Reality puts it, "It took me a long time to understand what (the industry) meant by open vs. proprietary, but I finally figured it out. From the perspective of any one supplier, open meant ‘our products.’ Proprietary meant ‘everyone else’s products.’"~{ Crichtley and Batty, Open Systems, 10. }~ +={openness (component of Free Software):closure vs.+8;Open Systems: intellectual property and+8} + +For most supporters of open systems, the opposition between open and proprietary had a certain moral force: it indicated that corporations providing the latter were dangerously close to being evil, immoral, perhaps even criminal monopolists. Adrian Gropper and Sean Doyle, the principals in Amicas, an Internet teleradiology company, for instance, routinely referred to the large proprietary healthcare-information systems they confronted in these terms: open systems are the way of light, not dark. Although there are no doubt arguments for closed systems—security, privacy, robustness, control—the demand for interoperability does not mean that such closure will be sacrificed.~{ An excellent counterpoint here is Paul Edwards’s The Closed World, which clearly demonstrates the appeal of a thoroughly and hierarchically controlled system such as the Semi-Automated Ground Environment (SAGE) of the Department of Defense against the emergence of more "green world" models of openness. }~ Closure was also a choice. That is, open systems was an issue of sovereignty, involving the right, in a moral sense, of a customer to control a technical order hemmed in by firm standards that allowed customers to combine a number of different pieces of hardware and software purchased in an open market and to control the configuration themselves—not enforced openness, but the right to decide oneself on whether and how to be open or closed. +={Amicas (corporation);Doyle, Sean;Evil;Gropper, Adrian;moral and technical order+1;Monopoly} + +The open-systems idea of moral order conflicts, however, with an idea of moral order represented by intellectual property: the right, encoded in law, to assert ownership over and control particular bits of source code, software, and hardware. The call for and the market in open systems were never imagined as being opposed to intellectual property as such, even if the opposition between open and proprietary seemed to indicate a kind of subterranean recognition of the role of intellectual property. The issue was never explicitly broached. Of the hundred definitions in Open Systems, only one definition comes close to including legal issues: "Speaker at Interop ’90 (paraphrased and maybe apocryphal): ‘If you ask to gain access to a technology and the response you get back is a price list, then ,{[pg 151]}, that technology is "open." If what you get back is a letter from a lawyer, then it’s not "open."’"~{ Crichtley and Batty, Open Systems, 13. }~ +={intellectual property+6} + +Openness here is not equated with freedom to copy and modify, but with the freedom to buy access to any aspect of a system without signing a contract, a nondisclosure agreement, or any other legal document besides a check. The ground rules of competition are unchallenged: the existing system of intellectual property—a system that was expanded and strengthened in this period—was a sine qua non of competition. +={standards:as form of competition+1} + +Openness understood in this manner means an open market in which it is possible to buy standardized things which are neither obscure nor secret, but can be examined and judged—a "commodity" market, where products have functions, where quality is comparable and forms the basis for vigorous competition. What this notion implies is freedom from monopoly control by corporations over products, a freedom that is nearly impossible to maintain when the entire industry is structured around the monopoly control of intellectual property through trade secret, patent, or copyright. The blind spot hides the contradiction between an industry imagined on the model of manufacturing distinct and tangible products, and the reality of an industry that wavers somewhere between service and product, dealing in intangible intellectual property whose boundaries and identity are in fact defined by how they are exchanged, circulated, and shared, as in the case of the proliferation and differentiation of the UNIX operating system. +={monopoly+3;standards+4} + +There was no disagreement about the necessity of intellectual property in the computer industry of the 1980s, and there was no perceived contradiction in the demands for openness. Indeed, openness could only make sense if it were built on top of a stable system of intellectual property that allowed competitors to maintain clear definitions of the boundaries of their products. But the creation of interoperable components seemed to demand a relaxation of the secrecy and guardedness necessary to "protect" intellectual property. Indeed, for some observers, the problem of openness created the opportunity for the worst kinds of cynical logic, as in this example from Regis McKenna’s Who’s Afraid of Big Blue? +={McKenna, Regis+1} + +_1 Users want open environments, so the vendors had better comply. In fact, it is a good idea to support new standards early. That way, you can help control the development of standards. Moreover, you can ,{[pg 152]}, take credit for driving the standard. Supporting standards is a way to demonstrate that you’re on the side of users. On the other hand, companies cannot compete on the basis of standards alone. Companies that live by standards can die by standards. Other companies, adhering to the same standards, could win on the basis of superior manufacturing technology. If companies do nothing but adhere to standards, then all computers will become commodities, and nobody will be able to make any money. Thus, companies must keep something proprietary, something to differentiate their products.~{ McKenna, Who’s Afraid of Big Blue? 178, emphasis added. McKenna goes on to suggest that computer companies can differentiate themselves by adding services, better interfaces, or higher reliability—ironically similar to arguments that the Open Source Initiative would make ten years later. }~ + +By such an account, open systems would be tantamount to economic regression, a state of pure competition on the basis of manufacturing superiority, and not on the basis of the competitive advantage granted by the monopoly of intellectual property, the clear hallmark of a high-tech industry.~{ Richard Stallman, echoing the image of medieval manacled wretches, characterized the blind spot thus: "Unix does not give the user any more legal freedom than Windows does. What they mean by ‘open systems’ is that you can mix and match components, so you can decide to have, say, a Sun chain on your right leg and some other company’s chain on your left leg, and maybe some third company’s chain on your right arm, and this is supposed to be better than having to choose to have Sun chains on all your limbs, or Microsoft chains on all your limbs. You know, I don’t care whose chains are on each limb. What I want is not to be chained by anyone" ("Richard Stallman: High School Misfit, Symbol of Free Software, MacArthur-certified Genius," interview by Michael Gross, Cambridge, Mass., 1999, 5, http://www.mgross.com/MoreThgsChng/interviews/stallman1.html). }~ It was an irresolvable tension between the desire for a cooperative, market-based infrastructure and the structure of an intellectual-property system ill-suited to the technical realities within which companies and customers operated—a tension revealing the reorientation of knowledge and power with respect to creation, dissemination, and modification of knowledge. +={modifiability+1;reorientation of power and knowledge} + +From the perspective of intellectual property, ideas, designs, and source code are everything—if a company were to release the source code, and allow other vendors to build on it, then what exactly would they be left to sell? Open systems did not mean anything like free, open-source, or public-domain computing. But the fact that competition required some form of collaboration was obvious as well: standard software and network systems were needed; standard markets were needed; standard norms of innovation within the constraints of standards were needed. In short, the challenge was not just the creation of competitive products but the creation of a standard infrastructure, dealing with the technical questions of availability, modifiability, and reusability of components, and the moral questions of the proper organization of competition and collaboration across diverse domains: engineers, academics, the computer industry, and the industries it computerized. What follows is the story of how UNIX entered the open-systems fray, a story in which the tension between the conceiving of openness and the demands of intellectual property is revealed. +={availability: open systems and;collaboration: competition vs.;modifiability;Source code+2} + +% ,{[pg 153]}, + +2~ Open Systems One: Operating Systems +={UNIX operating system:history of+37|Open Systems and+37|standardization and+37} + +In 1980 UNIX was by all accounts the most obvious choice for a standard operating system for a reason that seemed simple at the outset: it ran on more than one kind of hardware. It had been installed on DEC machines and IBM machines and Intel processors and Motorola processors—a fact exciting to many professional programmers, university computer scientists, and system administrators, many of whom also considered UNIX to be the best designed of the available operating systems. + +There was a problem, however (there always is): UNIX belonged to AT&T, and AT&T had licensed it to multiple manufacturers over the years, in addition to allowing the source code to circulate more or less with abandon throughout the world and to be ported to a wide variety of different machine architectures. Such proliferation, albeit haphazard, was a dream come true: a single, interoperable operating system running on all kinds of hardware. Unfortunately, proliferation would also undo that dream, because it meant that as the markets for workstations and operating systems heated up, the existing versions of UNIX hardened into distinct and incompatible versions with different features and interfaces. By the mid 1980s, there were multiple competing efforts to standardize UNIX, an endeavour that eventually went haywire, resulting in the so-called UNIX wars, in which "gangs" of vendors (some on both sides of the battle) teamed up to promote competing standards. The story of how this happened is instructive, for it is a story that has been reiterated several times in the computer industry.~{ A similar story can be told about the emergence, in the late 1960s and early 1970s, of manufacturers of "plug-compatible" devices, peripherals that plugged into IBM machines (see Takahashi, "The Rise and Fall of the Plug Compatible Manufacturers"). Similarly, in the 1990s the story of browser compatibility and the World Wide Web Consortium (W3C) standards is another recapitulation. }~ +={standards:as form of competition+7} + +As a hybrid commercial-academic system, UNIX never entered the market as a single thing. It was licensed in various ways to different people, both academic and commercial, and contained additions and tools and other features that may or may not have originated at (or been returned to) Bell Labs. By the early 1980s, the Berkeley Software Distribution was in fact competing with the AT&T version, even though BSD was a sublicensee—and it was not the only one. By the late 1970s and early 1980s, a number of corporations had licensed UNIX from AT&T for use on new machines. Microsoft licensed it (and called it Xenix, rather than licensing the name UNIX as well) to be installed on Intel-based machines. IBM, Unisys, Amdahl, Sun, DEC, and Hewlett-Packard all followed suit and ,{[pg 154]}, created their own versions and names: HP-UX, A/UX, AIX, Ultrix, and so on. Given the ground rules of trade secrecy and intellectual property, each of these licensed versions needed to be made legally distinct—if they were to compete with each other. Even if "UNIX" remained conceptually pure in an academic or pedagogical sense, every manufacturer would nonetheless have to tweak, to extend, to optimize in order to differentiate. After all, "if companies do nothing but adhere to standards, then all computers will become commodities, and nobody will be able to make any money."~{ McKenna, Who’s Afraid of Big Blue? 178. }~ +={AT&T:version of UNIX;portability, of operating systems+4;UNIX wars;workstations} + +It was thus unlikely that any of these corporations would contribute the changes they made to UNIX back into a common pool, and certainly not back to AT&T which subsequent to the 1984 divestiture finally released their own commercial version of UNIX, called UNIX System V. Very quickly, the promising "open" UNIX of the 1970s became a slough of alternative operating systems, each incompatible with the next thanks to the addition of market-differentiating features and hardware-specific tweaks. According to Pamela Gray, "By the mid-1980s, there were more than 100 versions in active use" centered around the three market leaders, AT&T’s System V, Microsoft/SCO Xenix, and the BSD.~{ Pamela Gray, Open Systems. }~ By 1984, the differences in systems had become significant—as in the case of the BSD additions of the TCP/IP protocols, the vi editor, and the Pascal compiler—and created not only differentiation in terms of quality but also incompatibility at both the software and networking levels. +={AT&T:divestiture in 1984;Open Systems:operating systems and+32} + +Different systems of course had different user communities, based on who was the customer of whom. Eric Raymond suggests that in the mid-1980s, independent hackers, programmers, and computer scientists largely followed the fortunes of BSD: "The divide was roughly between longhairs and shorthairs; programmers and technical people tended to line up with Berkeley and BSD, more business-oriented types with AT&T and System V. The longhairs, repeating a theme from Unix’s early days ten years before, liked to see themselves as rebels against a corporate empire; one of the small companies put out a poster showing an X-wing-like space fighter marked "BSD" speeding away from a huge AT&T ‘death star’ logo left broken and in flames."~{ Eric Raymond, "Origins and History of Unix, 1969-1995," The Art of UNIX Programming, http://www.faqs.org/docs/artu/ch02s01.html#id2880014. }~ +={Raymond, Eric Steven;UNIX operating system:allegiance to versions of+1} + +So even though UNIX had become the standard operating system of choice for time-sharing, multi-user, high-performance computers by the mid-1980s, there was no such thing as UNIX. Competitors ,{[pg 155]}, in the UNIX market could hardly expect the owner of the system, AT&T, to standardize it and compete with them at the same time, and the rest of the systems were in some legal sense still derivations from the original AT&T system. Indeed, in its licensing pamphlets, AT&T even insisted that UNIX was not a noun, but an adjective, as in "the UNIX system."~{ Libes and Ressler, Life with UNIX, 22. Also noted in Tanenbaum, "The UNIX Marketplace in 1987," 419. }~ +={UNIX operating system:as part of speech} + +The dawning realization that the proliferation of systems was not only spreading UNIX around the world but also spreading it thin and breaking it apart led to a series of increasingly startling and high-profile attempts to "standardize" UNIX. Given that the three major branches (BSD, which would become the industry darling as Sun’s Solaris operating system; Microsoft, and later SCO Xenix; and AT&T’s System V) all emerged from the same AT&T and Berkeley work done largely by Thompson, Ritchie, and Joy, one would think that standardization would be a snap. It was anything but. +={SCO (corporation);Solaris (operating system)} + +2~ Figuring Out Goes Haywire +={figuring out+1} + +Figuring out the moral and technical order of open systems went haywire around 1986-88, when there were no fewer than four competing international standards, represented by huge consortia of computer manufacturers (many of whom belonged to multiple consortia): POSIX, the X/Open consortium, the Open Software Foundation, and UNIX International. The blind spot of open systems had much to do with this crazy outcome: academics, industry, and government could not find ways to agree on standardization. One goal of standardization was to afford customers choice; another was to allow competition unconstrained by "artificial" means. A standard body of source code was impossible; a standard "interface definition" was open to too much interpretation; government and academic standards were too complex and expensive; no particular corporation’s standard could be trusted (because they could not be trusted to reveal it in advance of their own innovations); and worst of all, customers kept buying, and vendors kept shipping, and the world was increasingly filled with diversity, not standardization. +={moral and technical order;Open Software Foundation (OSF);POSIX (standard);standards:interface definition as+6;X/Open Consortium;UNIX International} + +UNIX proliferated quickly because of porting, leading to multiple instances of an operating system with substantially similar source code shared by academics and licensed by AT&T. But it differentiated ,{[pg 156]}, just as quickly because of forking, as particular features were added to different ports. Some features were reincorporated into the "main" branch—the one Thompson and Ritchie worked on—but the bulk of these mutations spread in a haphazard way, shared through users directly or implemented in newly formed commercial versions. Some features were just that, features, but others could extend the system in ways that might make an application possible on one version, but not on another. +={differentiation of software+1;proliferation of software+1} + +The proliferation and differentiation of UNIX, the operating system, had peculiar effects on the emerging market for UNIX, the product: technical issues entailed design and organizational issues. The original UNIX looked the way it did because of the very peculiar structure of the organization that created and sustained UNIX: Bell Labs and the worldwide community of users and developers. The newly formed competitors, conceiving of UNIX as a product distinct from the original UNIX, adopted it precisely because of its portability and because of the promise of open systems as an alternative to "big iron" mainframes. But as UNIX was funneled into existing corporations with their own design and organizational structures, it started to become incompatible with itself, and the desire for competition in open systems necessitated efforts at UNIX standardization. +={standards organizations+26} + +The first step in the standardization of open systems and UNIX was the creation of what was called an "interface definition," a standard that enumerated the minimum set of functions that any version of UNIX should support at the interface level, meaning that any programmer who wrote an application could expect to interact with any version of UNIX on any machine in the same way and get the same response from the machine (regardless of the specific implementation of the operating system or the source code that was used). Interface definitions, and extensions to them, were ideally to be published and freely available. + +The interface definition was a standard that emphasized portability, not at the source-code or operating-system level, but at the application level, allowing applications built on any version of UNIX to be installed and run on any other. The push for such a standard came first from a UNIX user group founded in 1980 by Bob Marsh and called, after the convention of file hierarchies in the UNIX interface, "/usr/group" (later renamed Uniforum). The 1984 /usr/group standard defined a set of system calls, which, however, "was ,{[pg 157]}, immediately ignored and, for all practical purposes, useless."~{ Libes and Ressler, Life with UNIX, 67. }~ It seemed the field was changing too fast and UNIX proliferating and innovating too widely for such a standard to work. +={user groups+1:/usr/group+4} + +The /usr/group standard nevertheless provided a starting point for more traditional standards organizations—the Institute of Electrical and Electronics Engineers (IEEE) and the American National Standards Institute (ANSI)—to take on the task. Both institutions took the /usr/group standard as a basis for what would be called IEEE P1003 Portable Operating System Interface for Computer Environments (POSIX). Over the next three years, from 1984 to 1987, POSIX would work diligently at providing a standard interface definition for UNIX. +={American National Standards Institute (ANSI)+1;Institute of Electrical and Electronics Engineers (IEEE)+3;POSIX (standard)+1} + +Alongside this development, the AT&T version of UNIX became the basis for a different standard, the System V Interface Definition (SVID), which attempted to standardize a set of functions similar but not identical to the /usr/group and POSIX standards. Thus emerged two competing definitions for a standard interface to a system that was rapidly proliferating into hundreds of tiny operating-system fiefdoms.~{ A case might be made that a third definition, the ANSI standard for the C programming language, also covered similar ground, which of course it would have had to in order to allow applications written on one ,{[pg 330]}, operating system to be compiled and run on another (see Gray, Open Systems, 55-58; Libes and Ressler, Life with UNIX, 70-75). }~ The danger of AT&T setting the standard was not lost on any of the competing manufacturers. Even if they created a thoroughly open standard-interface definition, AT&T’s version of UNIX would be the first to implement it, and they would continually have privileged knowledge of any changes: if they sought to change the implementation, they could change the standard; if they received demands that the standard be changed, they could change their implementation before releasing the new standard. +={standards:as form of competition+24|implementation; System V Interface Definition (SVID)} + +In response to this threat, a third entrant into the standards race emerged: X/Open, which comprised a variety of European computer manufacturers (including AT&T!) and sought to develop a standard that encompassed both SVID and POSIX. The X/Open initiative grew out of European concern about the dominance of IBM and originally included Bull, Ericsson, ICL, Nixdorf, Olivetti, Philips, and Siemens. In keeping with a certain 1980s taste for the integration of European economic activity vis-à-vis the United States and Japan, these manufacturers banded together both to distribute a unified UNIX operating system in Europe (based initially on the BSD and Sun versions of UNIX) and to attempt to standardize it at the same time. +={Berkeley Systems Distribution (BSD) (version of UNIX);X/Open Consortium+20;International Business Machines (IBM)+2} + +X/Open represented a subtle transformation of standardization efforts and of the organizational definition of open systems. While ,{[pg 158]}, the /usr/group standard was developed by individuals who used UNIX, and the POSIX standard by an acknowledged professional society (IEEE), the X/Open group was a collective of computer corporations that had banded together to fund an independent entity to help further the cause of a standard UNIX. This paradoxical situation—of a need to share a standard among all the competitors and the need to keep the details of that standardized product secret to maintain an advantage—was one that many manufacturers, especially the Europeans with their long experience of IBM’s monopoly, understood as mutually destructive. Hence, the solution was to engage in a kind of organizational innovation, to create a new form of metacorporate structure that could strategically position itself as at least temporarily interested in collaboration with other firms, rather than in competition. Thus did stories and promises of open systems wend their way from the details of technical design to those of organizational design to the moral order of competition and collaboration, power and strategy. "Standards" became products that corporations sought to "sell" to their own industry through the intermediary of the consortium. +={collaboration:competition vs.+22;monopoly} + +In 1985 and 1986 the disarrayed state of UNIX was also frustrating to the major U.S. manufacturers, especially to Sun Microsystems, which had been founded on the creation of a market for UNIX-based "workstations," high-powered networked computers that could compete with mainframes and personal computers at the same time. Founded by Bill Joy, Vinod Khosla, and Andreas Bechtolsheim, Sun had very quickly become an extraordinarily successful computer company. The business pages and magazines were keen to understand whether workstations were viable competitors to PCs, in particular to those of IBM and Microsoft, and the de facto standard DOS operating system, for which a variety of extremely successful business-, personal-, and home-computer applications were written. +={Joy, Bill;Microsoft;Sun Microsystems+9;workstations+3} + +Sun seized on the anxiety around open systems, as is evident in the ad it ran during the summer of 1987 (figure 4). The ad plays subtly on two anxieties: the first is directed at the consumer and suggests that only with Sun can one actually achieve interoperability among all of one business’ computers, much less across a network or industry; the second is more subtle and plays to fears within the computer industry itself, the anxiety that Sun might merge with one ,{[pg 159]}, of the big corporations, AT&T or Unisys, and corner the market in open systems by producing the de facto standard. +={interoperability;mergers+2;Unisys+2} + +{ 2bits_05_04-100.png }image ~[* 4a and 4b. Open systems anxiety around mergers and compatibility. Sun Microsystems advertisement, Wall Street Journal, 9 July 1987. ]~ + +In fact, in October 1987 Sun announced that it had made a deal with AT&T. AT&T would distribute a workstation based on Sun’s SPARC line of workstations and would acquire 20 percent of Sun.~{ "AT&T Deal with Sun Seen," New York Times, 19 October 1987, D8. }~ As part of this announcement, Sun and AT&T made clear that they intended to merge two of the dominant versions of UNIX on the market: AT&T’s System V and the BSD-derived Solaris. This move clearly frightened the rest of the manufacturers interested in UNIX and open systems, as it suggested a kind of super-power alignment that would restructure (and potentially dominate) the market. A 1988 article in the New York Times quotes an industry analyst who characterizes the merger as "a matter of concern at the highest levels of every major computer company in the United States, and possibly the world," and it suggests that competing manufacturers "also fear that AT&T will gradually make Unix a proprietary product, usable only on AT&T or Sun machines."~{ Thomas C. Hayesdallas, "AT&T’s Unix Is a Hit at Last, and Other Companies Are Wary," New York Times, 24 February 1988, D8. }~ The industry anxiety was great enough that in March Unisys (a computer manufacturer, formerly Burroughs-Sperry) announced that it would work with AT&T and Sun to bring UNIX to its mainframes and to make its ,{[pg 160]}, business applications run on UNIX. Such a move was tantamount to Unisys admitting that there would be no future in proprietary high-end computing—the business on which it had hitherto built its reputation—unless it could be part of the consortium that could own the standard.~{ "Unisys Obtains Pacts for Unix Capabilities," New York Times, 10 March 1988, D4. }~ +={AT&T+7;Solaris (operating system)} + +In response to this perceived collusion a group of U.S. and European companies banded together to form another rival organization—one that partially overlapped with X/Open but now included IBM—this one called the Open Software Foundation. A nonprofit corporation, the foundation included IBM, Digital Equipment, Hewlett-Packard, Bull, Nixdorf, Siemens, and Apollo Computer (Sun’s most direct competitor in the workstation market). Their goal was explicitly to create a "competing standard" for UNIX that would be available on the hardware they manufactured (and based, according to some newspaper reports, on IBM’s AIX, which was to be called OSF/1). AT&T appeared at first to support the foundation, suggesting that if the Open Software Foundation could come up with a standard, then AT&T would make System V compatible with it. Thus, 1988 was the summer of open love. Every major computer manufacturer in the world was now part of some consortium or another, and some were part of two—each promoting a separate standard. +={X/Open Consortium} + +Of all the corporations, Sun did the most to brand itself as the originator of the open-systems concept. They made very broad claims for the success of open-systems standardization, as for instance in an ad from August 1988 (figure 5), which stated in part: +={openness (component of Free Software):proprietary vs.} + +_1 But what’s more, those sales confirm a broad acceptance of the whole idea behind Sun. + +_1 The Open Systems idea. Systems based on standards so universally accepted that they allow combinations of hardware and software from literally thousands of independent vendors. . . . So for the first time, you’re no longer locked into the company who made your computers. Even if it’s us. + +The ad goes on to suggest that "in a free market, the best products win out," even as Sun played both sides of every standardization battle, cooperating with both AT&T and with the Open Software Foundation. But by October of that year, it was clear to Sun that ,{[pg 161]}, ,{[pg 162]}, the idea hadn’t really become "so universal" just yet. In that month AT&T and Sun banded together with seventeen other manufacturers and formed a rival consortium: Unix International, a coalition of the willing that would back the AT&T UNIX System V version as the one true open standard. In a full-page advertisement from Halloween of 1988 (figure 6), run simultaneously in the New York Times, the Washington Post, and the Wall Street Journal, the rhetoric of achieved success remained, but now instead of "the Open Systems idea," it was "your demand for UNIX System V-based solutions that ushered in the era of open architecture." Instead of a standard for all open systems, it was a war of all against all, a war to assure customers that they had made, not the right choice of hardware or software, but the right choice of standard. +={UNIX International+3;UNIX wars+3} + +{ 2bits_05_05-100.png }image ~[* It pays to be open: Sun’s version of profitable and successful open systems. Sun Microsystems advertisement, New York Times, 2 August 1988. ]~ + +% image placed after paragraph + +The proliferation of standards and standards consortia is often referred to as the UNIX wars of the late 1980s, but the creation of such consortia did not indicate clearly drawn lines. Another metaphor that seems to have been very popular in the press at the time was that of "gang" warfare (no doubt helped along by the creation of another industry consortia informally called the Gang of Nine, which were involved in a dispute over whether MicroChannel or EISA buses should be installed in PCs). The idea of a number of companies forming gangs to fight with each other, Bloods-and-Crips style—or perhaps more Jets-and-Sharks style, minus the singing—was no doubt an appealing metaphor at the height of Los Angeles’s very real and high-profile gang warfare. But as one article in the New York Times pointed out, these were strange gangs: "Since ‘openness’ and ‘cooperation’ are the buzzwords behind these alliances, the gang often asks its enemy to join. Often the enemy does so, either so that it will not seem to be opposed to openness or to keep tabs on the group. IBM was invited to join the corporation for Open Systems, even though the clear if unstated motive of the group was to dilute IBM’s influence in the market. AT&T negotiated to join the Open Software Foundation, but the talks collapsed recently. Some companies find it completely consistent to be members of rival gangs. . . . About 10 companies are members of both the Open Software Foundation and its archrival Unix International."~{ Andrew Pollack, "Computer Gangs Stake Out Turf," New York Times, 13 December 1988, D1. See also Evelyn Richards, "Computer Firms Get a Taste of ‘Gang Warfare,’" Washington Post, 11 December 1988, K1; Brit Hume, "IBM, Once the Bully on the Block, Faces a Tough New PC Gang," Washington Post, 3 October 1988, E24. }~ +={openness (component of Free Software):standardization and} + +{ 2bits_05_06-100.png }image ~[* The UNIX Wars, Halloween 1988. UNIX International advertisement, Wall Street Journal and New York Times, 31 October 1988. ]~ + +% image placed above paragraph + +The proliferation of these consortia can be understood in various ways. One could argue that they emerged at a time—during the Reagan administration—when antitrust policing had diminished to ,{[pg 163]}, ,{[pg 164]}, the point where computer corporations did not see such collusion as a risky activity vis-à-vis antitrust policing. One could also argue that these consortia represented a recognition that the focus on hardware control (the meaning of proprietary) had been replaced with a focus on the control of the "open standard" by one or several manufacturers, that is, that competition was no longer based on superior products, but on "owning the standard." It is significant that the industry consortia quickly overwhelmed national efforts, such as the IEEE POSIX standard, in the media, an indication that no one was looking to government or nonprofits, or to university professional societies, to settle the dispute by declaring a standard, but rather to industry itself to hammer out a standard, de facto or otherwise. Yet another way to understand the emergence of these consortia is as a kind of mutual policing of the market, a kind of paranoid strategy of showing each other just enough to make sure that no one would leapfrog ahead and kill the existing, fragile competition. +={antitrust+2;standards:ownership of;Institute of Electrical and Electronics Engineers (IEEE)} + +What this proliferation of UNIX standards and consortia most clearly represents, however, is the blind spot of open systems: the difficulty of having collaboration and competition at the same time in the context of intellectual-property rules that incompletely capture the specific and unusual characteristics of software. For participants in this market, the structure of intellectual property was unassailable—without it, most participants assumed, innovation would cease and incentives disappear. Despite the fact that secrecy haunted the industry, its customers sought both openness and compatibility. These conflicting demands proved irresolvable. +={secrecy} + +2~ Denouement + +Ironically, the UNIX wars ended not with the emergence of a winner, but with the reassertion of proprietary computing: Microsoft Windows and Windows NT. Rather than open systems emerging victorious, ushering in the era of seamless integration of diverse components, the reverse occurred: Microsoft managed to grab a huge share of computer markets, both desktop and high-performance, by leveraging its brand, the ubiquity of DOS, and application-software developers’ dependence on the "Wintel" monster (Windows plus Intel chips). Microsoft triumphed, largely for the same reasons the open-systems dream failed: the legal structure of intellectual ,{[pg 165]}, property favored a strong corporate monopoly on a single, branded product over a weak array of "open" and competing components. There was no large gain to investors, or to corporations, from an industry of nice guys sharing the source code and making the components work together. Microsoft, on the other hand, had decided to do so internal to itself; it did not necessarily need to form consortia or standardize its operating systems, if it could leverage its dominance in the market to spread the operating system far and wide. It was, as standards observers like to say, the triumph of de facto standardization over de jure. It was a return to the manacled wretches of IBM’s monopoly—but with a new dungeon master. +={Intel (corporation);Microsoft:Windows operating system;Openness (component of Free Software):proprietary vs.;monopoly;openness (component of Free Software)+10} + +The denouement of the UNIX standards story was swift: AT&T sold its UNIX System Labs (including all of the original source and rights) to Novell in 1993, who sold it in turn to SCO two years later. Novell sold (or transferred) the trademark name UNIX™ to the X/Open group, which continued to fight for standardization, including a single universal UNIX specification. In 1996 X/Open and the Open Software Foundation merged to form the Open Group.~{ "What Is Unix?" The Unix System, http://www.unix.org/what_is_unix/history_timeline.html. }~ The Open Group eventually joined forces with IEEE to turn POSIX into a single UNIX specification in 2001. They continue to push the original vision of open systems, though they carefully avoid using the name or concept, referring instead to the trademarked mouthful "Boundaryless Information Flow" and employing an updated and newly inscrutable rhetoric: "Boundaryless Information Flow, a shorthand representation of ‘access to integrated information to support business process improvements’ represents a desired state of an enterprise’s infrastructure and is specific to the business needs of the organization."~{ "About the Open Group," The Open Group, http://www.opengroup.org/overview/vision-mission.htm. }~ +={AT&T;Novell;SCO (corporation)} + +The Open Group, as well as many other participants in the history of open systems, recognize the emergence of "open source" as a return to the now one true path of boundaryless information flow. Eric Raymond, of course, sees continuity and renewal (not least of which in his own participation in the Open Source movement) and in his Art of UNIX Programming says, "The Open Source movement is building on this stable foundation and is creating a resurgence of enthusiasm for the UNIX philosophy. In many ways Open Source can be seen as the true delivery of Open Systems that will ensure it continues to go from strength to strength."~{ "What Is Unix?" The Unix System, http://www.unix.org/what_is_unix/history_timeline.html. }~ +={Open Source} + +This continuity, of course, deliberately disavows the centrality of the legal component, just as Raymond and the Open Source ,{[pg 166]}, Initiative had in 1998. The distinction between a robust market in UNIX operating systems and a standard UNIX-based infrastructure on which other markets and other activities can take place still remains unclear to even those closest to the money and machines. It does not yet exist, and may well never come to. +={infrastructure+1} + +The growth of Free Software in the 1980s and 1990s depended on openness as a concept and component that was figured out during the UNIX wars. It was during these wars that the Free Software Foundation (and other groups, in different ways) began to recognize the centrality of the issue of intellectual property to the goal of creating an infrastructure for the successful creation of open systems.~{ Larry McVoy was an early voice, within Sun, arguing for solving the open-systems problem by turning to Free Software. Larry McVoy, "The Sourceware Operating System Proposal," 9 November 1993, http://www.bitmover.com/lm/papers/srcos.html. }~ The GNU (GNU’s Not Unix) project in particular, but also the X Windows system at MIT, the Remote Procedure Call and Network File System (NFS) systems created by Sun, and tools like sendmail and BIND were each in their own way experiments with alternative licensing arrangements and were circulating widely on a variety of the UNIX versions in the late 1980s. Thus, the experience of open systems, while technically a failure as far as UNIX was concerned, was nonetheless a profound learning experience for an entire generation of engineers, hackers, geeks, and entrepreneurs. Just as the UNIX operating system had a pedagogic life of its own, inculcating itself into the minds of engineers as the paradigm of an operating system, open systems had much the same effect, realizing an inchoate philosophy of openness, interconnection, compatibility, interoperability—in short, availability and modifiability—that was in conflict with intellectual-property structures as they existed. To put it in Freudian terms: the neurosis of open systems wasn’t cured, but the structure of its impossibility had become much clearer to everyone. UNIX, the operating system, did not disappear at all—but UNIX, the market, did. +={modifiability+5;availability: open systems and+5;Free software:components of;GNU (Gnu's Not Unix);interoperability;modifiability+4;pedagogy:operating systems and;X Windows} + +2~ Open Systems Two: Networks +={Open Systems:networks and+28} + +The struggle to standardize UNIX as a platform for open systems was not the only open-systems struggle; alongside the UNIX wars, another "religious war" was raging. The attempt to standardize networks—in particular, protocols for the inter-networking of multiple, diverse, and autonomous networks of computers—was also a key aspect of the open-systems story of the 1980s.~{ The distinction between a protocol, an implementation and a standard is important: Protocols are descriptions of the precise terms by which two computers can communicate (i.e., a dictionary and a handbook for communicating). An implementation is the creation of software that uses a protocol (i.e., actually does the communicating; thus two implementations using the same protocol should be able to share data. A standard defines which protocol should be used by which computers, for what purposes. It may or may not define the protocol, but will set limits on changes to that protocol. }~ The war ,{[pg 167]}, between the TCP/IP and OSI was also a story of failure and surprising success: the story of a successful standard with international approval (the OSI protocols) eclipsed by the experimental, military-funded TCP/IP, which exemplified an alternative and unusual standards process. The moral-technical orders expressed by OSI and TCP/IP are, like that of UNIX, on the border between government, university, and industry; they represent conflicting social imaginaries in which power and legitimacy are organized differently and, as a result, expressed differently in the technology. +={moral and technical order;Networks:protools for+3;Open Systems Interconnection (OSI):as reference model+27;protocols:Open Systems Interconnection (OSI)+27|TCP/IP;TCP/IP (Transmission Control Protocol/Internet Protocol)+27;religious wars+3;social imaginary;standards processes+3} + +OSI and TCP/IP started with different goals: OSI was intended to satisfy everyone, to be the complete and comprehensive model against which all competing implementations would be validated; TCP/IP, by contrast, emphasized the easy and robust interconnection of diverse networks. TCP/IP is a protocol developed by bootstrapping between standard and implementation, a mode exemplified by the Requests for Comments system that developed alongside them as part of the Arpanet project. OSI was a "model" or reference standard developed by internationally respected standards organizations. +={Arpanet (network)+18;Request for Comments (RFC)} + +In the mid-1980s OSI was en route to being adopted internationally, but by 1993 it had been almost completely eclipsed by TCP/IP. The success of TCP/IP is significant for three reasons: (1) availability—TCP/IP was itself available via the network and development open to anyone, whereas OSI was a bureaucratically confined and expensive standard and participation was confined to state and corporate representatives, organized through ISO in Geneva; (2) modifiability—TCP/IP could be copied from an existing implementation (such as the BSD version of UNIX) and improved, whereas OSI was a complex standard that had few existing implementations available to copy; and (3) serendipity—new uses that took advantage of availability and modifiability sprouted, including the "killer app" that was the World Wide Web, which was built to function on existing TCP/IP-based networks, convincing many manufacturers to implement that protocol instead of, or in addition to, OSI. +={World Wide Web (www)} + +The success of TCP/IP over OSI was also significant because of the difference in the standardization processes that it exemplified. The OSI standard (like all official international standards) is conceived and published as an aid to industrial growth: it was imagined according to the ground rules of intellectual property and as an attempt to facilitate the expansion of markets in networking. ,{[pg 168]}, OSI would be a "vendor-neutral" standard: vendors would create their own, secret implementations that could be validated by OSI and thereby be expected to interoperate with other OSI-validated systems. By stark contrast, the TCP/IP protocols were not published (in any conventional sense), nor were the implementations validated by a legitimate international-standards organization; instead, the protocols are themselves represented by implementations that allow connection to the network itself (where the TCP/IP protocols and implementations are themselves made available). The fact that one can only join the network if one possesses or makes an implementation of the protocol is generally seen as the ultimate in validation: it works.~{ The advantages of such an unplanned and unpredictable network have come to be identified in hindsight as a design principle. See Gillespie, "Engineering a Principle" for an excellent analysis of the history of "end to end" or "stupid" networks. }~ In this sense, the struggle between TCP/IP and OSI is indicative of a very familiar twentieth-century struggle over the role and extent of government planning and regulation (versus entrepreneurial activity and individual freedom), perhaps best represented by the twin figures of Friedrich Hayek and Maynard Keynes. In this story, it is Hayek’s aversion to planning and the subsequent privileging of spontaneous order that eventually triumphs, not Keynes’s paternalistic view of the government as a neutral body that absorbs or encourages the swings of the market. +={Hayek, Friedrich;Keynes, John Maynard;standards:validation of} + +2~ Bootstrapping Networks + +The "religious war" between TCP/IP and OSI occurred in the context of intense competition among computer manufacturers and during a period of vibrant experimentation with computer networks worldwide. As with most developments in computing, IBM was one of the first manufacturers to introduce a networking system for its machines in the early 1970s: the System Network Architecture (SNA). DEC followed suit with Digital Network Architecture (DECnet or DNA), as did Univac with Distributed Communications Architecture (DCA), Burroughs with Burroughs Network Architecture (BNA), and others. These architectures were, like the proprietary operating systems of the same era, considered closed networks, networks that interconnected a centrally planned and specified number of machines of the same type or made by the same manufacturer. The goal of such networks was to make connections internal to a firm, even if that involved geographically widespread systems (e.g., from branch to headquarters). Networks were also to be products. +={Digital Equipment Corporation (corporation):DECNet;Networks: as products|varieties of+4} + +The 1970s and 1980s saw extraordinarily vibrant experimentation with academic, military, and commercial networks. Robert Metcalfe had developed Ethernet at Xerox PARC in the mid-1970s, and IBM later created a similar technology called "token ring." In the 1980s the military discovered that the Arpanet was being used predominantly by computer scientists and not just for military applications, and decided to break it into MILNET and CSNET.~{ William Broad, "Global Network Split as Safeguard," New York Times, 5 October 1983, A13. }~ Bulletin Board Services, which connected PCs to each other via modems to download files, appeared in the late 1970s. Out of this grew Tom Jennings’s very successful experiment called FidoNet.~{ See the incomparable BBS: The Documentary, DVD, directed by Jason Scott (Boston: Bovine Ignition Systems, 2005), http://www.bbsdocumentary.com/. }~ In the 1980s an existing social network of university faculty on the East Coast of the United States started a relatively successful network called BITNET (Because It’s There Network) in the mid-1980s.~{ Grier and Campbell, "A Social History of Bitnet and Listserv 1985-1991." }~ The Unix to Unix Copy Protocol (uucp), which initially enabled the Usenet, was developed in the late 1970s and widely used until the mid-1980s to connect UNIX computers together. In 1984 the NSF began a program to fund research in networking and created the first large backbones for NSFNet, successor to the CSNET and Arpanet.~{ On Usenet, see Hauben and Hauben, Netizens. See also Pfaffenberger, "‘A Standing Wave in the Web of Our Communications.’" }~ +={Sparc (computer workstation);Unix to Unix copy protocol (uucp);Usenet;Xerox PARC} + +In the 1970s telecommunications companies and spin-off start-ups experimented widely with what were called "videotex" systems, of which the most widely implemented and well-known is Minitel in France.~{ Schmidt and Werle, Coordinating Technology, chap. 7. }~ Such systems were designed for consumer users and often provided many of the now widespread services available on the Internet in a kind of embryonic form (from comparison shopping for cars, to directory services, to pornography).~{ See, for example, Martin, Viewdata and the Information Society. }~ By the late 1970s, videotex systems were in the process of being standardized by the Commité Consultative de Information, Technologie et Télécommunications (CCITT) at the International Telecommunications Union (ITU) in Geneva. These standards efforts would eventually be combined with work of the International Organization for Standardization (ISO) on OSI, which had originated from work done at Honeywell.~{ There is little information on the development of open systems; there is, however, a brief note from William Stallings, author of perhaps the most widely used textbook on networking, at "The Origins of OSI," http://williamstallings.com/Extras/OSI.html. }~ +={Commité Consultative de Information, Technologie et Télécommunications (CCITT);International Telecommunications Union (ITU)+6;Internet: early development+5;International Organization for Standardization (ISO)+4;regulation:telecommunications+3;telecommunications industry+5} + +One important feature united almost all of these experiments: the networks of the computer manufacturers were generally piggybacked, or bootstrapped, onto existing telecommunications infrastructures built by state-run or regulated monopoly telecommunications firms. This situation inevitably spelled grief, for telecommunications providers are highly regulated entities, while the computer industry has been almost totally unregulated from its ,{[pg 170]}, inception. Since an increasingly core part of the computer industry’s business involved transporting signals through telecommunications systems without being regulated to do so, the telecommunications industry naturally felt themselves at a disadvantage.~{ Brock, The Second Information Revolution is a good introductory source for this conflict, at least in its policy outlines. The Federal Communications Commission issued two decisions (known as "Computer 1" and "Computer 2") that attempted to deal with this conflict by trying to define what counted as voice communication and what as data. }~ Telecommunications companies were not slow to respond to the need for data communications, but their ability to experiment with products and practices outside the scope of telephony and telegraphy was often hindered by concerns about antitrust and monopoly.~{ Brock, The Second Information Revolution, chap. 10. }~ The unregulated computer industry, by contrast, saw the tentativeness of the telecommunications industry (or national PTTs) as either bureaucratic inertia or desperate attempts to maintain control and power over existing networks—though no computer manufacturer relished the idea of building their own physical network when so many already existed. +={antitrust} + +TCP/IP and OSI have become emblematic of the split between the worlds of telecommunications and computing; the metaphors of religious wars or of blood feuds and cold wars were common.~{ Drake, "The Internet Religious War." }~ A particularly arch account from this period is Carl Malamud’s Exploring the Internet: A Technical Travelogue, which documents Malamud’s (physical) visits to Internet sites around the globe, discussions (and beer) with networking researchers on technical details of the networks they have created, and his own typically geeky, occasionally offensive takes on cultural difference.~{ Malamud, Exploring the Internet; see also Michael M. J. Fischer, "Worlding Cyberspace." }~ A subtheme of the story is the religious war between Geneva (in particular the ITU) and the Internet: Malamud tells the story of asking the ITU to release its 19,000-page "blue book" of standards on the Internet, to facilitate its adoption and spread. +={Malmud, Carl+1;standards processes+4} + +The resistance of the ITU and Malamud’s heroic if quixotic attempts are a parable of the moral-technical imaginaries of openness—and indeed, his story draws specifically on the usable past of Giordano Bruno.~{ The usable past of Giordano Bruno is invoked by Malamud to signal the heretical nature of his own commitment to openly publishing standards that ISO was opposed to releasing. Bruno’s fate at the hands of the Roman Inquisition hinged in some part on his acceptance of the Copernican cosmology, so he has been, like Galileo, a natural figure for revolutionary claims during the 1990s. }~ The "bruno" project demonstrates the gulf that exists between two models of legitimacy—those of ISO and the ITU—in which standards represent the legal and legitimate consensus of a regulated industry, approved by member nations, paid for and enforced by governments, and implemented and adhered to by corporations. +={Bruno, Giordano;Usable pasts;International Organization for Standardization (ISO)+3} + +Opposite ISO is the ad hoc, experimental style of Arpanet and Internet researchers, in which standards are freely available and implementations represent the mode of achieving consensus, rather than the outcome of the consensus. In reality, such a rhetorical ,{[pg 171]}, opposition is far from absolute: many ISO standards are used on the Internet, and ISO remains a powerful, legitimate standards organization. But the clash of established (telecommunications) and emergent (computer-networking) industries is an important context for understanding the struggle between OSI and TCP/IP. + +The need for standard networking protocols is unquestioned: interoperability is the bread and butter of a network. Nonetheless, the goals of the OSI and the TCP/IP protocols differed in important ways, with profound implications for the shape of that interoperability. OSI’s goals were completeness, control, and comprehensiveness. OSI grew out of the telecommunications industry, which had a long history of confronting the vicissitudes of linking up networks and facilitating communication around the world, a problem that required a strong process of consensus and negotiation among large, powerful, government-run entities, as well as among smaller manufacturers and providers. OSI’s feet were firmly planted in the international standardization organizations like OSI and the ITU (an organization as old as telecommunications itself, dating to the 1860s). +={interoperability+12} + +Even if they were oft-mocked as slow, bureaucratic, or cumbersome, the processes of ISO and ITU—based in consensus, international agreement, and thorough technical specification—are processes of unquestioned legitimacy. The representatives of nations and corporations who attend ISO and ITU standards discussions, and who design, write, and vote on these standards, are usually not bureaucrats, but engineers and managers directly concerned with the needs of their constituency. The consensus-oriented process means that ISO and ITU standards attempt to satisfy all members’ goals, and as such they tend to be very large, complex, and highly specific documents. They are generally sold to corporations and others who need to use them, rather than made freely available, a fact that until recently reflected their legitimacy, rather than lack thereof. + +TCP/IP, on the other hand, emerged from very different conditions.~{ Abbate, Inventing the Internet; Salus, Casting the Net; Galloway, Protocol; and Brock, The Second Information Revolution. For practitioner histories, see Kahn et al., "The Evolution of the Internet as a Global Information System"; Clark, "The Design Philosophy of the DARPA Internet Protocols." }~ These protocols were part of a Department of Defense-funded experimental research project: Arpanet. The initial Arpanet protocols (the Network Control Protocol, or NCP) were insufficient, and TCP/IP was an experiment in interconnecting two different "packet-switched networks": the ground-line-based Arpanet network and a radio-wave network called Packet Radio.~{ Kahn et al., "The Evolution of the Internet as a Global Information System," 134-140; Abbate, Inventing the Internet, 114-36. }~ The ,{[pg 172]}, problem facing the designers was not how to accommodate everyone, but merely how to solve a specific problem: interconnecting two technically diverse networks, each with autonomous administrative boundaries, but forcing neither of them to give up the system or the autonomy. +={Defense, Department of+11;Defense Advanced Research Projects Agency (DARPA)+1;packet-switching+1} + +Until the mid-1980s, the TCP/IP protocols were resolutely research-oriented, and not the object of mainstream commercial interest. Their development reflected a core set of goals shared by researchers and ultimately promoted by the central funding agency, the Department of Defense. The TCP/IP protocols are often referred to as enabling packet-switched networks, but this is only partially correct; the real innovation of this set of protocols was a design for an "inter-network," a system that would interconnect several diverse and autonomous networks (packet-switched or circuit-switched), without requiring them to be transformed, redesigned, or standardized—in short, by requiring only standardization of the intercommunication between networks, not standardization of the network itself. In the first paper describing the protocol Robert Kahn and Vint Cerf motivated the need for TCP/IP thus: "Even though many different and complex problems must be solved in the design of an individual packet-switching network, these problems are manifestly compounded when dissimilar networks are interconnected. Issues arise which may have no direct counterpart in an individual network and which strongly influence the way in which Internetwork communication can take place."~{ Kahn and Cerf, "A Protocol for Packet Network Intercommunication," 637. }~ +={Cerf, Vinton+2;Kahn, Robert;TCP/IP (Transmission Control Protocol/Internet Protocol):goals of+2} + +The explicit goal of TCP/IP was thus to share computer resources, not necessarily to connect two individuals or firms together, or to create a competitive market in networks or networking software. Sharing between different kinds of networks implied allowing the different networks to develop autonomously (as their creators and maintainers saw best), but without sacrificing the ability to continue sharing. Years later, David Clark, chief Internet engineer for several years in the 1980s, gave a much more explicit explanation of the goals that led to the TCP/IP protocols. In particular, he suggested that the main overarching goal was not just to share resources but "to develop an effective technique for multiplexed utilization of existing interconnected networks," and he more explicitly stated the issue of control that faced the designers: "Networks represent administrative boundaries of control, and it was an ambition of this project to come to grips with the problem of integrating a number ,{[pg 173]}, of separately administrated entities into a common utility."~{ Clark, "The Design Philosophy of the DARPA Internet Protocols," 54-55. }~ By placing the goal of expandability first, the TCP/IP protocols were designed with a specific kind of simplicity in mind: the test of the protocols’ success was simply the ability to connect. +={Clark, David} + +By setting different goals, TCP/IP and OSI thus differed in terms of technical details; but they also differed in terms of their context and legitimacy, one being a product of international-standards bodies, the other of military-funded research experiments. The technical and organizational differences imply different processes for standardization, and it is the peculiar nature of the so-called Requests for Comments (RFC) process that gave TCP/IP one of its most distinctive features. The RFC system is widely recognized as a unique and serendipitous outcome of the research process of Arpanet.~{ RFCs are archived in many places, but the official site is RFC Editor, http://www.rfc-editor.org/. }~ In a thirty-year retrospective (published, naturally, as an RFC: RFC 2555), Vint Cerf says, "Hiding in the history of the RFCs is the history of human institutions for achieving cooperative work." He goes on to describe their evolution over the years: "When the RFCs were first produced, they had an almost 19th century character to them—letters exchanged in public debating the merits of various design choices for protocols in the ARPANET. As email and bulletin boards emerged from the fertile fabric of the network, the far-flung participants in this historic dialog began to make increasing use of the online medium to carry out the discussion—reducing the need for documenting the debate in the RFCs and, in some respects, leaving historians somewhat impoverished in the process. RFCs slowly became conclusions rather than debates."~{ RFC Editor, RFC 2555, 6. }~ +={standards processes;Request for Comments (RFC)+2} + +Increasingly, they also became part of a system of discussion and implementation in which participants created working software as part of an experiment in developing the standard, after which there was more discussion, then perhaps more implementation, and finally, a standard. The RFC process was a way to condense the process of standardization and validation into implementation; which is to say, the proof of open systems was in the successful connection of diverse networks, and the creation of a standard became a kind of ex post facto rubber-stamping of this demonstration. Any further improvement of the standard hinged on an improvement on the standard implementation because the standards that resulted were freely and widely available: "A user could request an RFC by email from his host computer and have it automatically delivered to his mailbox. . . . RFCs were also shared freely with official standards ,{[pg 174]}, bodies, manufacturers and vendors, other working groups, and universities. None of the RFCs were ever restricted or classified. This was no mean feat when you consider that they were being funded by DoD during the height of the Cold War."~{ Ibid., 11. }~ +={Software:implementation of;standards:implementation+9|validation of;Secrecy+1} + +The OSI protocols were not nearly so freely available. The ironic reversal—the transparency of a military-research program versus the opacity of a Geneva-based international-standards organization—goes a long way toward explaining the reasons why geeks might find the story of TCP/IP’s success to be so appealing. It is not that geeks are secretly militaristic, but that they delight in such surprising reversals, especially when those reversals exemplify the kind of ad hoc, clever solution to problems of coordination that the RFC process does. The RFC process is not the only alternative to a consensus-oriented model of standardization pioneered in the international organizations of Geneva, but it is a specific response to a reorientation of power and knowledge that was perhaps more "intuitively obvious" to the creators of Arpanet and the Internet, with its unusual design goals and context, than it would have been to the purveyors of telecommunications systems with over a hundred years of experience in connecting people in very specific and established ways. +={geeks;reorientation of power and knowledge;standards organizations} + +2~ Success as Failure + +By 1985, OSI was an official standard, one with widespread acceptance by engineers, by the government and military (the "GOSIP" standard), and by a number of manufacturers, the most significant of which was General Motors, with its Manufacturing Automation Protocol (MAP). In textbooks and handbooks of the late 1980s and early 1990s, OSI was routinely referred to as the inevitable standard—which is to say, it had widespread legitimacy as the standard that everyone should be implementing—but few implementations existed. Many of the textbooks on networking from the late 1980s, especially those slanted toward a theoretical introduction, give elaborate detail of the OSI reference model—a generation of students in networking was no doubt trained to understand the world in terms of OSI—but the ambivalence continued. Indeed, the most enduring legacy of the creation of the OSI protocols is not the protocols themselves (some of which, like ASN.1, are still ,{[pg 175]}, widely used today), but the pedagogical model: the "7 layer stack" that is as ubiquitous in networking classes and textbooks as UNIX is in operating-systems classes.~{ This can be clearly seen, for instance, by comparing the various editions of the main computer-networking textbooks: cf. Tanenbaum, Computer Networks, 1st ed. (1981), 2d ed. (1988), 3d ed. (1996), and 4th ed. (2003); Stallings, Data and Computer Communications, 1st ed. (1985), 2d ed. (1991), ,{[pg 332]}, 3d ed. (1994), 4th ed. (1997), and 5th ed. (2004); and Comer, Internetworking with TCP/IP (four editions between 1991 and 1999). }~ +={General Motors (GM)} + +But in the late 1980s, the ambivalence turned to confusion. With OSI widely recognized as the standard, TCP/IP began to show up in more and more actually existing systems. For example, in Computer Network Architectures and Protocols, Carl Sunshine says, "Now in the late 1980s, much of the battling seems over. CCITT and ISO have aligned their efforts, and the research community seems largely to have resigned itself to OSI." But immediately afterward he adds: "It is ironic that while a consensus has developed that OSI is indeed inevitable, the TCP/IP protocol suite has achieved widespread deployment, and now serves as a de facto interoperability standard. . . . It appears that the vendors were unable to bring OSI products to market quickly enough to satisfy the demand for interoperable systems, and TCP/IP were there to fill the need."~{ Sunshine, Computer Network Architectures and Protocols, 5. }~ +={Commité Consultative de Information, Technologie et Télécommunications (CCITT);pedagogy:network protocols and} + +The more implementations that appeared, the less secure the legitimate standard seemed to be. By many accounts the OSI specifications were difficult to implement, and the yearly networking-industry "Interop" conferences became a regular locale for the religious war between TCP/IP and OSI. The success of TCP/IP over OSI reflects the reorientation of knowledge and power to which Free Software is also a response. The reasons for the success are no doubt complex, but the significance of the success of TCP/IP illustrates three issues: availability, modifiability, and serendipity. + +!_ Availability +The TCP/IP standards themselves were free to anyone and available over TCP/IP networks, exemplifying one of the aspects of a recursive public: that the only test of participation in a TCP/IP-based internetwork is the fact that one possesses or has created a device that implements TCP/IP. Access to the network is contingent on the interoperability of the networks. The standards were not "published" in a conventional sense, but made available through the network itself, without any explicit intellectual property restrictions, and without any fees or restrictions on who could access them. By contrast, ISO standards are generally not circulated freely, but sold for relatively high prices, as a source of revenue, and under the general theory that only legitimate corporations or government agencies would need access to them. +={availability:open systems and+1;recursive public+3} + +% ,{[pg 176]}, + +Related to the availability of the standards is the fact that the standards process that governed TCP/IP was itself open to anyone, whether corporate, military or academic. The structure of governance of the Internet Engineering Task Force (the IETF) and the Internet Society (ISOC) allowed for anyone with the means available to attend the "working group" meetings that would decide on the standards that would be approved. Certainly this does not mean that the engineers and defense contractors responsible actively sought out corporate stakeholders or imagined the system to be "public" in any dramatic fashion; however, compared to the system in place at most standards bodies (in which members are usually required to be the representatives of corporations or governments), the IETF allowed individuals to participate qua individuals.~{ The structure of the IETF, the Internet Architecture Board, and the ISOC is detailed in Comer, Internetworking with TCP/IP, 8-13; also in Schmidt and Werle, Coordinating Technology, 53-58. }~ +={Internet Engineering Task Force (IETF);Internet Society (ISOC)} + +!_ Modifiability +Implementations of TCP/IP were widely available, bootstrapped from machine to machine along with the UNIX operating system and other tools (e.g., the implementation of TCP/IP in BSD 4.2, the BSD version of UNIX), generally including the source code. An existing implementation is a much more expressive and usable object than a specification for an implementation, and though ISO generally prepares reference implementations for such standards, in the case of OSI there were many fewer implementations to work with or build on. Because multiple implementations of TCP/IP already existed, it was easy to validate: did your (modified) implementation work with the other existing implementations? By contrast, OSI would provide independent validation, but the in situ validation through connection to other OSI networks was much harder to achieve, there being too few of them, or access being restricted. It is far easier to build on an existing implementation and to improve on it piecemeal, or even to rewrite it completely, using its faults as a template (so to speak), than it is to create an implementation based solely on a standard. The existence of the TCP/IP protocols in BSD 4.2 not only meant that people who installed that operating system could connect to the Internet easily, at a time when it was by no means standard to be able to do so, but it also meant that manufacturers or tinkerers could examine the implementation in BSD 4.2 as the basis for a modified, or entirely new, implementation. +={modifiability;Berkeley Systems Distribution (BSD) (version of UNIX);standards:validation of} + +!_ Serendipity +Perhaps most significant, the appearance of widespread and popular applications that were dependent on TCP/IP ,{[pg 177]}, gave those protocols an inertia that OSI, with relatively few such applications, did not have. The most important of these by far was the World Wide Web (the http protocol, the HTML mark-up language, and implementations of both servers, such as libwww, and clients, such as Mosaic and Netscape). The basic components of the Web were made to work on top of the TCP/IP networks, like other services that had already been designed (ftp, telnet, gopher, archie, etc.); thus, Tim Berners-Lee, who co-invented the World Wide Web, could also rely on the availability and openness of previous work for his own protocols. In addition, Berners-Lee and CERN (the European Organization for Nuclear Research) dedicated their work to the public domain more or less immediately, essentially allowing anyone to do anything they wished with the system they had cobbled together.~{ Message-ID: { 673c43e160cia758@sluvca.slu.edu. }http://groups.google.com/groups?selm=673c43e160cia758@sluvca.slu.edu See also Berners-Lee, Weaving the Web. }~ From the perspective of the tension between TCP/IP and OSI, the World Wide Web was thus what engineers call a "killer app," because its existence actually drove individuals and corporations to make decisions (in favor of TCP/IP) that it might not have made otherwise. +={Berners-Lee, Tim;Hypertext Transfer Protocol (http);Mosaic (web browser);Netscape Navigator (application);World Wide Web (www)} + +2~ Conclusion + +Openness and open systems are key to understanding the practices of Free Software: the open-systems battles of the 1980s set the context for Free Software, leaving in their wake a partially articulated infrastructure of operating systems, networks, and markets that resulted from figuring out open systems. The failure to create a standard UNIX operating system opened the door for Microsoft Windows NT, but it also set the stage for the emergence of the Linux-operating-system kernel to emerge and spread. The success of the TCP/IP protocols forced multiple competing networking schemes into a single standard—and a singular entity, the Internet—which carried with it a set of built-in goals that mirror the moral-technical order of Free Software. +={Linux (Free Software project);moral and technical order} + +This "infrastructure" is at once technical (protocols and standards and implementations) and moral (expressing ideas about the proper order and organization of commercial efforts to provide high-tech software, networks, and computing power). As with the invention of UNIX, the opposition commercial-noncommercial (or its doppelgangers public-private, profit-nonprofit, capitalist-socialist, etc.) ,{[pg 178]}, doesn’t capture the context. Constraints on the ability to collaborate, compete, or withdraw are in the making here through the technical and moral imaginations of the actors involved: from the corporate behemoths like IBM to (onetime) startups like Sun to the independent academics and amateurs and geeks with stakes in the new high-tech world of networks and software. +={geeks} + +The creation of a UNIX market failed. The creation of a legitimate international networking standard failed. But they were local failures only. They opened the doors to new forms of commercial practice (exemplified by Netscape and the dotcom boom) and new kinds of politicotechnical fractiousness (ICANN, IPv6, and "net neutrality"). But the blind spot of open systems—intellectual property—at the heart of these failures also provided the impetus for some geeks, entrepreneurs, and lawyers to start figuring out the legal and economic aspects of Free Software, and it initiated a vibrant experimentation with copyright licensing and with forms of innovative coordination and collaboration built on top of the rapidly spreading protocols of the Internet. +={Copyleft licenses (component of Free Software)} + +1~ 6. Writing Copyright Licenses +={Copyleft licenses (component of Free Software)+110;General Public License (GPL)+110;Stallman, Richard+110;intellectual property+110} + +% ,{[pg 179]}, + +_1 To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. - Preamble to the GNU General Public License + +The use of novel, unconventional copyright licenses is, without a doubt, the most widely recognized and exquisitely refined component of Free Software. The GNU General Public License (GPL), written initially by Richard Stallman, is often referred to as a beautiful, clever, powerful "hack" of intellectual-property law—when it isn’t being denounced as a viral, infectious object threatening the very fabric of economy and society. The very fact that something so boring, so arcane, and so legalistic as a copyright license can become an object of both devotional reverence and bilious scorn means there is much more than fine print at stake. ,{[pg 180]}, + +By the beginning of the twenty-first century, there were hundreds of different Free Software licenses, each with subtle legal and technical differences, and an enormous legal literature to explain their details, motivation, and impact.~{ The legal literature on Free Software expands constantly and quickly, and it addresses a variety of different legal issues. Two excellent starting points are Vetter, "The Collaborative Integrity of Open-Source Software" and "‘Infectious’ Open Source Software." }~ Free Software licenses differ from conventional copyright licenses on software because they usually restrict only the terms of distribution, while so-called End User License Agreements (EULAs) that accompany most proprietary software restrict what users can do with the software. Ethnographically speaking, licenses show up everywhere in the field, and contemporary hackers are some of the most legally sophisticated non-lawyers in the world. Indeed, apprenticeship in the world of hacking is now impossible, as Gabriella Coleman has shown, without a long, deep study of intellectual-property law.~{ Coleman, "The Social Construction of Freedom." }~ +={Coleman, Gabriella;End User License Agreements (EULAs)} + +But how did it come to be this way? As with the example of sharing UNIX source code, Free Software licenses are often explained as a reaction to expanding intellectual-property laws and resistance to rapacious corporations. The text of the GPL itself begins deep in such assumptions: "The licenses for most software are designed to take away your freedom to share and change it."~{ "The GNU General Public Licence, Version 2.0," http://www.gnu.org/licenses/old-licenses/gpl-2.0.html. }~ But even if corporations are rapacious, sharing and modifying software are by no means natural human activities. The ideas of sharing and of common property and its relation to freedom must always be produced through specific practices of sharing, before being defended. The GPL is a precise example of how geeks fit together the practices of sharing and modifying software with the moral and technical orders—the social imaginaries—of freedom and autonomy. It is at once an exquisitely precise legal document and the expression of an idea of how software should be made available, shareable, and modifiable. +={practices;social imaginary;sharing source code (component of Free Software)} + +In this chapter I tell the story of the creation of the GPL, the first Free Software license, during a controversy over EMACS, a very widely used and respected piece of software; the controversy concerned the reuse of bits of copyrighted source code in a version of EMACS ported to UNIX. There are two reasons to retell this story carefully. The first is simply to articulate the details of the origin of the Free Software license itself, as a central component of Free Software, details that should be understood in the context of changing copyright law and the UNIX and open-systems struggles of the 1980s. Second, although the story of the GPL is also an oft-told story of the "hacker ethic," the GPL is not an "expression" of this ,{[pg 181]}, ethic, as if the ethic were genotype to a legal phenotype. Opposite the familiar story of ethics, I explain how the GPL was "figured out" in the controversy over EMACS, how it was formed in response to a complicated state of affairs, both legal and technical, and in a medium new to all the participants: the online mailing lists and discussion lists of Usenet and Arpanet.~{ All existing accounts of the hacker ethic come from two sources: from Stallman himself and from the colorful and compelling chapter about Stallman in Steven Levy’s Hackers. Both acknowledge a prehistory to the ethic. Levy draws it back in time to the MIT Tech Model Railroad Club of the 1950s, while Stallman is more likely to describe it as reaching back to the scientific revolution or earlier. The stories of early hackerdom at MIT are avowedly Edenic, and in them hackers live in a world of uncontested freedom and collegial competition—something like a writer’s commune without the alcohol or the brawling. There are stories about a printer whose software needed fixing but was only available under a nondisclosure agreement; about a requirement to use passwords (Stallman refused, chose as his password, and hacked the system to encourage others to do the same); about a programming war between different LISP machines; and about the replacement of the Incompatible Time-Sharing System with DEC’s TOPS-20 ("Twenex") operating system. These stories are oft-told usable pasts, but they are not representative. Commercial constraints have always been part of academic life in computer science and engineering: hardware and software were of necessity purchased from commercial manufacturers and often controlled by them, even if they offered "academic" or "educational" licenses. }~ +={EMACS (text editor)+105;Hacker ethic+1;Open Systems;Usenet;Arpanet (network);hackers: hacks and+7;ethnographic data:availability of|mailing lists and+1} + +The story of the creation of the GNU General Public License ultimately affirms the hacker ethic, not as a story of the ethical hacker genius, but as a historically specific event with a duration and a context, as something that emerges in response to the reorientation of knowledge and power, and through the active modulation of existing practices among both human and nonhuman actors. While hackers themselves might understand the hacker ethic as an unchanging set of moral norms, their practices belie this belief and demonstrate how ethics and norms can emerge suddenly and sharply, undergo repeated transformations, and bifurcate into ideologically distinct camps (Free Software vs. Open Source), even as the practices remain stable relative to them. The hacker ethic does not descend from the heights of philosophy like the categorical imperative—hackers have no Kant, nor do they want one. Rather, as Manuel Delanda has suggested, the philosophy of Free Software is the fact of Free Software itself, its practices and its things. If there is a hacker ethic, it is Free Software itself, it is the recursive public itself, which is much more than a list of norms.~{ Delanda, "Open Source." }~ By understanding it in this way, it becomes possible to track the proliferation and differentiation of the hacker ethic into new and surprising realms, instead of assuming its static universal persistence as a mere procedure that hackers execute. +={Delanda, Manuel;practices:five components of Free Software+2;Kant, Immanuel;recursive public;reorientation of power and knowledge} + +2~ Free Software Licenses, Once More with Feeling + +In lecturing on liberalism in 1935, John Dewey said the following of Jeremy Bentham: "He was, we might say, the first great muck-raker in the field of law . . . but he was more than that, whenever he saw a defect, he proposed a remedy. He was an inventor in law and administration, as much so as any contemporary in mechanical production."~{ Dewey, Liberalism and Social Action. }~ Dewey’s point was that the liberal reforms attributed to Bentham came not so much from his theories as from his direct involvement in administrative and legal reform—his experimentation. ,{[pg 182]}, Whether or not Bentham’s influence is best understood this way, it nonetheless captures an important component of liberal reform in Europe and America that is also a key component in the story of Free Software: that the route to achieving change is through direct experiment with the system of law and administration. +={Bentham, Jeremy+1;Dewey, John;experimentation:administrative reform as+1;figuring out} + +A similar story might be told of Richard Stallman, hacker hero and founder of the Free Software Foundation, creator of (among many other things) the GNU C Compiler and GNU EMACS, two of the most widely used and tested Free Software tools in the world. Stallman is routinely abused for holding what many perceive to be "dogmatic" or "intractable" ideological positions about freedom and the right of individuals to do what they please with software. While it is no doubt quite true that his speeches and writings clearly betray a certain fervor and fanaticism, it would be a mistake to assume that his speeches, ideas, or belligerent demands concerning word choice constitute the real substance of his reform. In fact, it is the software he has created and the licenses he has written and rewritten which are the key to his Bentham-like inventiveness. Unlike Bentham, however, Stallman is not a creator of law and administrative structure, but a hacker. +={GNU C Compiler (gcc)} + +Stallman’s GNU General Public License "hacks" the federal copyright law, as is often pointed out. It does this by taking advantage of the very strong rights granted by federal law to actually loosen the restrictions normally associated with ownership. Because the statutes grant owners strong powers to create restrictions, Stallman’s GPL contains the restriction that anybody can use the licensed material, for any purpose, so long as they subsequently offer the same restriction. Hacks (after which hackers are named) are clever solutions to problems or shortcomings in technology. Hacks are work-arounds, clever, shortest-path solutions that take advantage of characteristics of the system that may or may not have been obvious to the people who designed it. Hacks range from purely utilitarian to mischievously pointless, but they always depend on an existing system or tool through which they achieve their point. To call Free Software a hack is to point out that it would be nothing without the existence of intellectual-property law: it relies on the structure of U.S. copyright law (USC§17) in order to subvert it. Free Software licenses are, in a sense, immanent to copyright laws—there is nothing illegal or even legally arcane about what they accomplish—but there is nonetheless a kind of lingering sense ,{[pg 183]}, that this particular use of copyright was not how the law was intended to function. +={Copyleft licenses (component of Free Software):as hack of copyright law+1;Copyright+1} + +Like all software since the 1980 copyright amendments, Free Software is copyrightable—and what’s more, automatically copyrighted as it is written (there is no longer any requirement to register). Copyright law grants the author (or the employer of the author) a number of strong rights over the dispensation of what has been written: rights to copy, distribute, and change the work.~{ Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, enacted 19 October 1976; and Copyright Amendments, Pub. L. No. 96-517, 94 Stat. 3015, 3028 (amending §101 and §117, title 17, United States Code, regarding computer programs), enacted 12 December 1980. All amendments since 1976 are listed at http://www.copyright.gov/title17/92preface.html. }~ Free Software’s hack is to immediately make use of these rights in order to abrogate the rights the programmer has been given, thus granting all subsequent licensees rights to copy, distribute, modify, and use the copyrighted software. Some licenses, like the GPL, add the further restriction that every licensee must offer the same terms to any subsequent licensee, others make no such restriction on subsequent uses. Thus, while statutory law suggests that individuals need strong rights and grants them, Free Software licenses effectively annul them in favor of other activities, such as sharing, porting, and forking software. It is for this reason that they have earned the name "copyleft."~{ The history of the copyright and software is discussed in Litman, Digital Copyright; Cohen et al., Copyright in a Global Information Economy; and Merges, Menell, and Lemley, Intellectual Property in the New Technological Age. }~ +={Copyright:changes in 1976|rights granted by} + +This is a convenient ex post facto description, however. Neither Stallman nor anyone else started out with the intention of hacking copyright law. The hack of the Free Software licenses was a response to a complicated controversy over a very important invention, a tool that in turn enabled an invention called EMACS. The story of the controversy is well-known among hackers and geeks, but not often told, and not in any rich detail, outside of these small circles.~{ See Wayner, Free for All; Moody, Rebel Code; and Williams, Free as in Freedom. Although this story could be told simply by interviewing Stallman and James Gosling, both of whom are still alive and active in the software world, I have chosen to tell it through a detailed analysis of the Usenet and Arpanet archives of the controversy. The trade-off is between a kind of incomplete, fly-on-the-wall access to a moment in history and the likely revisionist retellings of those who lived through it. All of the messages referenced here are cited by their "Message-ID," which should allow anyone interested to access the original messages through Google Groups (http://groups.google.com). }~ + +2~ EMACS, the Extensible, Customizable, Self-documenting, Real-time Display Editor +={text editors+13;EMACS (text editor):modularity and extensibility of+7} + +EMACS is a text editor; it is also something like a religion. As one of the two most famous text editors, it is frequently lauded by its devoted users and attacked by detractors who prefer its competitor (Bill Joy’s vi, also created in the late 1970s). EMACS is more than just a tool for writing text; for many programmers, it was (and still is) the principal interface to the operating system. For instance, it allows a programmer not only to write a program but also to debug it, to compile it, to run it, and to e-mail it to another user, ,{[pg 184]}, all from within the same interface. What’s more, it allows users to quickly and easily write extensions to EMACS itself, extensions that automate frequent tasks and in turn become core features of the software. It can do almost anything, but it can also frustrate almost anyone. The name itself is taken from its much admired extensibility: EMACS stands for "editing macros" because it allows programmers to quickly record a series of commands and bundle them into a macro that can be called with a simple key combination. In fact, it was one of the first editors (if not the first) to take advantage of keys like ctrl and meta, as in the now ubiquitous ctrl-S familiar to users of non-free word processors like Microsoft Word™. +={Joy, Bill;vi (text editor)} + +Appreciate the innovation represented by EMACS: before the UNIX-dominated minicomputer era, there were very few programs for directly manipulating text on a display. To conceive of source code as independent of a program running on a machine meant first conceiving of it as typed, printed, or hand-scrawled code which programmers would scrutinize in its more tangible, paper-based form. Editors that allowed programmers to display the code in front of them on a screen, to manipulate it directly, and to save changes to those files were an innovation of the mid- to late 1960s and were not widespread until the mid-1970s (and this only for bleeding-edge academics and computer corporations). Along with a few early editors, such as QED (originally created by Butler Lampson and Peter Deutsch, and rewritten for UNIX by Ken Thompson), one of the most famous of these was TECO (text editor and corrector), written by Dan Murphy for DEC’s PDP-1 computer in 1962-63. Over the years, TECO was transformed (ported and extended) to a wide variety of machines, including machines at Berkeley and MIT, and to other DEC hardware and operating systems. By the early 1970s, there was a version of TECO running on the Incompatible Time-sharing System (ITS), the system in use at MIT’s Artificial Intelligence (AI) Lab, and it formed the basis for EMACS. (Thus, EMACS was itself conceived of as a series of macros for a separate editor: Editing MACroS for TECO.) +={Artificial Intelligence Lab (AI Lab), at MIT+10;QED (text editor);TECO (text editor and programming language)+1} + +Like all projects on ITS at the AI Lab, many people contributed to the extension and maintenance of EMACS (including Guy Steele, Dave Moon, Richard Greenblatt, and Charles Frankston), but there is a clear recognition that Stallman made it what it was. The earliest AI Lab memo on EMACS, by Eugene Ciccarelli, says: "Finally, of all the people who have contributed to the development of EMACS, ,{[pg 185]}, and the TECO behind it, special mention and appreciation go to Richard M. Stallman. He not only gave TECO the power and generality it has, but brought together the good ideas of many different Teco-function packages, added a tremendous amount of new ideas and environment, and created EMACS. Personally one of the joys of my avocational life has been writing Teco/EMACS functions; what makes this fun and not painful is the rich set of tools to work with, all but a few of which have an ‘RMS’ chiseled somewhere on them."~{ Eugene Ciccarelli, "An Introduction to the EMACS Editor," MIT Artificial Intelligence Laboratory, AI Lab Memo no. 447, 1978, 2. }~ + +At this point, in 1978, EMACS lived largely on ITS, but its reputation soon spread, and it was ported to DEC’s TOPS-20 (Twenex) operating system and rewritten for Multics and the MIT’s LISP machine, on which it was called EINE (Eine Is Not EMACS), and which was followed by ZWEI (Zwei Was Eine Initially). +={Multics;proliferation of software+1} + +The proliferation of EMACS was both pleasing and frustrating to Stallman, since it meant that the work fragmented into different projects, each of them EMACS-like, rather than building on one core project, and in a 1981 report he said, "The proliferation of such superficial facsimiles of EMACS has an unfortunate confusing effect: their users, not knowing that they are using an imitation of EMACS and never having seen EMACS itself, are led to believe they are enjoying all the advantages of EMACS. Since any real-time display editor is a tremendous improvement over what they probably had before, they believe this readily. To prevent such confusion, we urge everyone to refer to a nonextensible imitation of EMACS as an ‘ersatz EMACS.’ "~{ Richard Stallman, "EMACS: The Extensible, Customizable Self-documenting Display Editor," MIT Artificial Intelligence Laboratory, AI Lab Memo no. 519a, 26 March 1981, 19. Also published as Richard M. Stallman, "EMACS: The Extensible, Customizable Self-documenting Display Editor," Proceedings of the ACM SIGPLAN SIGOA Symposium on Text Manipulation, 8-10 June (ACM, 1981), 147-56. }~ +={EMACS (text editor):ersatz versions} + +Thus, while EMACS in its specific form on ITS was a creation of Stallman, the idea of EMACS or of any "real-time display editor" was proliferating in different forms and on different machines. The porting of EMACS, like the porting of UNIX, was facilitated by both its conceptual design integrity and its widespread availability. +={design+1} + +The phrase "nonextensible imitation" captures the combination of design philosophy and moral philosophy that EMACS represented. Extensibility was not just a useful feature for the individual computer user; it was a way to make the improvements of each new user easily available equally to all by providing a standard way for users to add extensions and to learn how to use new extensions that were added (the "self-documenting" feature of the system). The program had a conceptual integrity that was compromised when it was copied imperfectly. EMACS has a modular, extensible design ,{[pg 186]}, that by its very nature invites users to contribute to it, to extend it, and to make it perform all manner of tasks—to literally copy and modify it, instead of imitating it. For Stallman, this was not only a fantastic design for a text editor, but an expression of the way he had always done things in the small-scale setting of the AI Lab. The story of Stallman’s moral commitments stresses his resistance to secrecy in software production, and EMACS is, both in its design and in Stallman’s distribution of it an example of this resistance. +={modifiability:EMACS and+12;moral and technical order+7;Secrecy} + +Not everyone shared Stallman’s sense of communal order, however. In order to facilitate the extension of EMACS through sharing, Stallman started something he called the "EMACS commune." At the end of the 1981 report—"EMACS: The Extensible, Customizable Self-documenting Display Editor," dated 26 March—he explained the terms of distribution for EMACS: "It is distributed on a basis of communal sharing, which means that all improvements must be given back to me to be incorporated and distributed. Those who are interested should contact me. Further information about how EMACS works is available in the same way."~{ Richard Stallman, "EMACS: The Extensible, Customizable Self-documenting Display Editor," MIT Artificial Intelligence Laboratory, AI Lab Memo no. 519a, 26 March 1981, 24. }~ +={EMACS commune+19} + +In another report, intended as a user’s manual for EMACS, Stallman gave more detailed and slightly more colorful instructions: + +_1 EMACS does not cost anything; instead, you are joining the EMACS software-sharing commune. The conditions of membership are that you must send back any improvements you make to EMACS, including any libraries you write, and that you must not redistribute the system except exactly as you got it, complete. (You can also distribute your customizations, separately.) Please do not attempt to get a copy of EMACS, for yourself or anyone else, by dumping it off of your local system. It is almost certain to be incomplete or inconsistent. It is pathetic to hear from sites that received incomplete copies lacking the sources [source code], asking me years later whether sources are available. (All sources are distributed, and should be on line at every site so that users can read them and copy code from them). If you wish to give away a copy of EMACS, copy a distribution tape from MIT, or mail me a tape and get a new one.~{ Richard M. Stallman, "EMACS Manual for ITS Users," MIT Artificial Intelligence Laboratory, AI Lab Memo no. 554, 22 October 1981, 163. }~ + +Because EMACS was so widely admired and respected, Stallman had a certain amount of power over this commune. If it had been an obscure, nonextensible tool, useful for a single purpose, no one would have heeded such demands, but because EMACS was by nature the kind of tool that was both useful for all kinds of tasks and ,{[pg 187]}, customizable for specific ones, Stallman was not the only person who benefited from this communal arrangement. Two disparate sites may well have needed the same macro extension, and therefore many could easily see the social benefit in returning extensions for inclusion, as well as in becoming a kind of co-developer of such a powerful system. As a result, the demands of the EMACS commune, while unusual and autocratic, were of obvious value to the flock. In terms of the concept of recursive public, EMACS was itself the tool through which it was possible for users to extend EMACS, the medium of their affinity; users had a natural incentive to share their contributions so that all might receive the maximum benefit. +={affinity (of geeks);recursive public} + +The terms of the EMACS distribution agreement were not quite legally binding; nothing compelled participation except Stallman’s reputation, his hectoring, or a user’s desire to reciprocate. On the one hand, Stallman had not yet chosen to, or been forced to, understand the details of the legal system, and so the EMACS commune was the next best thing. On the other hand, the state of intellectual-property law was in great flux at the time, and it was not clear to anyone, whether corporate or academic, exactly what kind of legal arrangements would be legitimate (the 1976 changes to copyright law were some of the most drastic in seventy years, and a 1980 amendment made software copyrightable, but no court cases had yet tested these changes). Stallman’s "agreement" was a set of informal rules that expressed the general sense of mutual aid that was a feature of both the design of the system and Stallman’s own experience at the AI Lab. It was an expression of the way Stallman expected others to behave, and his attempts to punish or shame people amounted to informal enforcement of these expectations. The small scale of the community worked in Stallman’s favor. +={Copyright:changes in 1976|changes in 1980} + +At its small scale, Stallman’s commune was confronting many of the same issues that haunted the open-systems debates emerging at the same time, issues of interoperability, source-code sharing, standardization, portability, and forking. In particular, Stallman was acutely aware of the blind spot of open systems: the conflict of moral-technical orders represented by intellectual property. While UNIX vendors left intellectual-property rules unchallenged and simply assumed that they were the essential ground rules of debate, Stallman made them the substance of his experiment and, like Bentham, became something of a legal muckraker as a result. +={Open Systems} + +% ,{[pg 188]}, + +Stallman’s communal model could not completely prevent the porting and forking of software. Despite Stallman’s request that imitators refer to their versions of EMACS as ersatz EMACS, few did. In the absence of legal threats over a trademarked term there was not much to stop people from calling their ports and forks EMACS, a problem of success not unlike that of Kleenex or Xerox. Few people took the core ideas of EMACS, implemented them in an imitation, and then called it something else (EINE and ZWEI were exceptions). In the case of UNIX the proliferation of forked versions of the software did not render them any less UNIX, even when AT&T insisted on ownership of the trademarked name. But as time went on, EMACS was ported, forked, rewritten, copied, or imitated on different operating systems and different computer architectures in universities and corporations around the world; within five or six years, many versions of EMACS were in wide use. It was this situation of successful adoption that would provide the context for the controversy that occurred between 1983 and 1985. +={EMACS (text editor):ersatz versions+6|controversy about+43} + +2~ The Controversy + +In brief the controversy was this: in 1983 James Gosling decided to sell his version of EMACS—a version written in C for UNIX called GOSMACS—to a commercial software vendor called Unipress. GOSMACS, the second most famous implementation of EMACS (after Stallman’s itself ), was written when Gosling was a graduate student at Carnegie Mellon University. For years, Gosling had distributed GOSMACS by himself and had run a mailing list on Usenet, on which he answered queries and discussed extensions. Gosling had explicitly asked people not to redistribute the program, but to come back to him (or send interested parties to him directly) for new versions, making GOSMACS more of a benevolent dictatorship than a commune. Gosling maintained his authority, but graciously accepted revisions and bug-fixes and extensions from users, incorporating them into new releases. Stallman’s system, by contrast, allowed users to distribute their extensions themselves, as well as have them included in the "official" EMACS. By 1983, Gosling had decided he was unable to effectively maintain and support GOSMACS—a task he considered the proper role of a corporation. +={Gosling, James+64|GOSMACS (version of EMACS)+41;Unipress+41} + +% ,{[pg 189]}, + +For Stallman, Gosling’s decision to sell GOSMACS to Unipress was "software sabotage." Even though Gosling had been substantially responsible for writing GOSMACS, Stallman felt somewhat proprietorial toward this ersatz version—or, at the very least, was irked that no noncommercial UNIX version of EMACS existed. So Stallman wrote one himself (as part of a project he announced around the same time, called GNU [GNU’s Not UNIX], to create a complete non-AT&T version of UNIX). He called his version GNU EMACS and released it under the same EMACS commune terms. The crux of the debate hinged on the fact that Stallman used, albeit ostensibly with permission, a small piece of Gosling’s code in his new version of EMACS, a fact that led numerous people, including the new commercial suppliers of EMACS, to cry foul. Recriminations and legal threats ensued and the controversy was eventually resolved when Stallman rewrote the offending code, thus creating an entirely "Gosling-free" version that went on to become the standard UNIX version of EMACS. +={GNU (Gnu's Not Unix)+40;EMACS (text editor):ersatz versions} + +The story raises several questions with respect to the changing legal context. In particular, it raises questions about the difference between "law on the books" and "law in action," that is, the difference between the actions of hackers and commercial entities, advised by lawyers and legally minded friends, and the text and interpretation of statutes as they are written by legislators and interpreted by courts and lawyers. The legal issues span trade secret, patent, and trademark, but copyright is especially significant. Three issues were undecided at the time: the copyrightability of software, the definition of what counts as software and what doesn’t, and the meaning of copyright infringement. While the controversy did not resolve any of these issues (the first two would be resolved by Congress and the courts, the third remains somewhat murky), it did clarify the legal issues for Stallman sufficiently that he could leave behind the informal EMACS commune and create the first version of a Free Software license, the GNU General Public License, which first started appearing in 1985. +={Copyright:software and copyrightability|legal definition of software and+70|infringement and software+70;software: copyrightability of+70;trademark law;trade secret law} + +Gosling’s decision to sell GOSMACS, announced in April of 1983, played into a growing EMACS debate being carried out on the GOSMACS mailing list, a Usenet group called net.emacs. Since net.emacs was forwarded to the Arpanet via a gateway maintained by John Gilmore at Sun Microsystems, a fairly large community ,{[pg 190]}, of EMACS users were privy to Gosling’s announcement. Prior to his declaration, there had been quite a bit of discussion regarding different versions of EMACS, including an already "commercial" version called CCA EMACS, written by Steve Zimmerman, of Computer Corporation of America (CCA).~{ Back in January of 1983, Steve Zimmerman had announced that the company he worked for, CCA, had created a commercial version of EMACS called CCA EMACS (Message-ID: { 385@yetti.uucp }http://groups.google.com/groups?selm=385@yetti.uucp ). Zimmerman had not written this version entirely, but had taken a version written by Warren Montgomery at Bell Labs (written for UNIX on PDP-11s) and created the version that was being used by programmers at CCA. Zimmerman had apparently distributed it by ftp at first, but when CCA determined that it might be worth something, they decided to exploit it commercially, rather than letting Zimmerman distribute it "freely." By Zimmerman’s own ,{[pg 334]}, account, this whole procedure required ensuring that there was nothing left of the original code by Warren Montgomery that Bell Labs owned (Message-ID: { 730@masscomp.uucp }http://groups.google.com/groups?selm=730@masscomp.uucp ). }~ Some readers wanted comparisons between CCA EMACS and GOSMACS; others objected that it was improper to discuss a commercial version on the list: was such activity legitimate, or should it be carried out as part of the commercial company’s support activities? Gosling’s announcement was therefore a surprise, since it was already perceived to be the "noncommercial" version. +={net.emacs (mailing list)+38;Computer Corporation of America (CCA)+60;Zimmerman, Steve+60} + +group{ + +Date: Tue Apr 12 04:51:12 1983 + +Subject: EMACS goes commercial + + The version of EMACS that I wrote is now available commercially through a company called Unipress. . . . They will be doing development, maintenance and will be producing a real manual. EMACS will be available on many machines (it already runs on VAXen under Unix and VMS, SUNs, codatas, and Microsoft Xenix). Along with this, I regret to say that I will no longer be distributing it. + + This is a hard step to take, but I feel that it is necessary. I can no longer look after it properly, there are too many demands on my time. EMACS has grown to be completely unmanageable. Its popularity has made it impossible to distribute free: just the task of writing tapes and stuffing them into envelopes is more than I can handle. + + The alternative of abandoning it to the public domain is unacceptable. Too many other programs have been destroyed that way. + + Please support these folks. The effort that they can afford to put into looking after EMACS is directly related to the support they get. Their prices are reasonable. + +James.~{ Message-ID for Gosling: { bnews.sri-arpa.865. }http://groups.google.com/groups?selm=bnews.sri-arpa.865 }~ + +}group +={Microsoft:Xenix (version of UNIX);public domain:meaning in EMACS controversy+59} + +The message is worth paying careful attention to: Gosling’s work of distributing the tapes had become "unmanageable," and the work of maintenance, upkeep, and porting (making it available on multiple architectures) is something he clearly believes should be done by a commercial enterprise. Gosling, it is clear, did not understand his effort in creating and maintaining EMACS to have emerged from a communal sharing of bits of code—even if he had done a Sisyphean amount of work to incorporate all the changes and suggestions his users had made—but he did long have a commitment ,{[pg 191]}, to distributing it for free, a commitment that resulted in many people contributing bits and pieces to GOSMACS. + +"Free," however, did not mean "public domain," as is clear from his statement that "abandoning it" to the public domain would destroy the program. The distinction is an important one that was, and continues to be, lost on many sophisticated members of net.emacs. Here, free means without charge, but Gosling had no intention of letting that word suggest that he was not the author, owner, maintainer, distributor, and sole beneficiary of whatever value GOSMACS had. Public domain, by contrast, implied giving up all these rights.~{ The thread starting at Message-ID: { 969@sdcsvax.uucp }http://groups.google.com/groups?selm=969@sdcsvax.uucp contains one example of a discussion over the difference between public-domain and commercial software. }~ His decision to sell GOSMACS to Unipress was a decision to transfer these rights to a company that would then charge for all the labor he had previously provided for no charge (for "free"). Such a distinction was not clear to everyone; many people considered the fact that GOSMACS was free to imply that it was in the public domain.~{ In particular, a thread discussing this in detail starts at Message-ID: { 172@encore.uucp }http://groups.google.com/groups?selm=172@encore.uucp and includes Message-ID: { 137@osu-eddie.UUCP }http://groups.google.com/groups?selm=137@osu-eddie.UUCP, Message-ID: { 1127@godot.uucp }http://groups.google.com/groups?selm=1127@godot.uucp, Message-ID: { 148@osu-eddie.uucp }http://groups.google.com/groups?selm=148@osu-eddie.uucp. }~ Not least of these was Richard Stallman, who referred to Gosling’s act as "software sabotage" and urged people to avoid using the "semi-ersatz" Unipress version.~{ Message-ID: bnews.sri-arpa.988. }~ +={Public domain:contrasted with free+12} + +To Stallman, the advancing commercialization of EMACS, both by CCA and by Unipress, was a frustrating state of affairs. The commercialization of CCA had been of little concern so long as GOSMACS remained free, but with Gosling’s announcement, there was no longer a UNIX version of EMACS available. To Stallman, however, "free" meant something more than either "public domain" or "for no cost." The EMACS commune was designed to keep EMACS alive and growing as well as to provide it for free—it was an image of community stewardship, a community that had included Gosling until April 1983. + +The disappearance of a UNIX version of EMACS, as well as the sudden commercial interest in making UNIX into a marketable operating system, fed into Stallman’s nascent plan to create a completely new, noncommercial, non-AT&T UNIX operating system that he would give away free to anyone who could use it. He announced his intention on 27 September 1983:~{ Message-ID: { 771@mit-eddie.uucp }http://groups.google.com/groups?selm=771@mit-eddie.uucp, announced on net.unix-wizards and net.usoft. }~ +={GNU Manifesto+7} + +group{ + +Free Unix! + + Starting this Thanksgiving I am going to write a complete Unix-compatible software system called GNU (for Gnu’s Not Unix), and give it away free to everyone who can use it. Contributions of time, money, programs and equipment are greatly needed. + +}group + +% ,{[pg 192]}, + +His justifications were simple. + +group{ + +Why I Must Write GNU + + I consider that the golden rule requires that if I like a program I must share it with other people who like it. I cannot in good conscience sign a nondisclosure agreement or a software license agreement. + + So that I can continue to use computers without violating my principles, I have decided to put together a sufficient body of free software so that I will be able to get along without any software that is not free.~{ Message-ID: { 771@mit-eddie.uucp }http://groups.google.com/groups?selm=771@mit-eddie.uucp. }~ + +}group + +At that point, it is clear, there was no "free software license." There was the word free, but not the term public domain. There was the "golden rule," and there was a resistance to nondisclosure and license arrangements in general, but certainly no articulated conception of copyleft of Free Software as a legally distinct entity. And yet Stallman hardly intended to "abandon it" to the public domain, as Gosling suggested. Instead, Stallman likely intended to require the same EMACS commune rules to apply to Free Software, rules that he would be able to control largely by overseeing (in a nonlegal sense) who was sent or sold what and by demanding (in the form of messages attached to the software) that any modifications or improvements come in the form of donations. It was during the period 1983-85 that the EMACS commune morphed into the GPL, as Stallman began adding copyrights and appending messages that made explicit what people could do with the software.~{ Various other people seem to have conceived of a similar scheme around the same time (if the Usenet archives are any guide), including Guido Van Rossum (who would later become famous for the creation of the Python scripting language). The following is from Message-ID: 5568@mcvax.uucp:
/* This software is copyright (c) Mathematical Centre, Amsterdam,
* 1983.
* Permission is granted to use and copy this software, but not for * profit,
* and provided that these same conditions are imposed on any person
* receiving or using the software.
*/ }~ +={EMACS commune} + +The GNU project initially received little attention, however; scattered messages to net.unix-wizards over the course of 1983-84 periodically ask about the status and how to contact them, often in the context of discussions of AT&T UNIX licensing practices that were unfolding as UNIX was divested and began to market its own version of UNIX.~{ For example, Message-ID: { 6818@brl-tgr.arpa }http://groups.google.com/groups?selm=6818@brl-tgr.arpa. }~ Stallman’s original plan for GNU was to start with the core operating system, the kernel, but his extensive work on EMACS and the sudden need for a free EMACS for UNIX led him to start with a UNIX version of EMACS. In 1984 and into 1985, he and others began work on a UNIX version of GNU EMACS. The two commercial versions of UNIX EMACS (CCA EMACS and Unipress EMACS) continued to circulate and improve in parallel. DEC users meanwhile used the original free version created by Stallman. And, as often happens, life went on: Zimmerman left CCA in August ,{[pg 193]}, 1984, and Gosling moved to Sun, neither of them remaining closely involved in the software they had created, but leaving the new owners to do so. +={AT&T;Digital Equipment Corporation (corporation)+1;Sun Microsystems+1} + +By March 1985, Stallman had a complete version (version 15) of GNU EMACS running on the BSD 4.2 version of UNIX (the version Bill Joy had helped create and had taken with him to form the core of Sun’s version of UNIX), running on DEC’s VAX computers. Stallman announced this software in a characteristically flamboyant manner, publishing in the computer programmers’ monthly magazine Dr. Dobbs an article entitled "The GNU Manifesto."~{ Stallman, "The GNU Manifesto." Available at GNU’s Not Unix!, http://www.gnu.org/gnu/manifesto.html. }~ +={Joy, Bill} + +Stallman’s announcement that a free version of UNIX EMACS was available caused some concern among commercial distributors. The main such concern was that GNU EMACS 15.34 contained code marked "Copyright (c) James Gosling," code used to make EMACS display on screen.~{ The main file of the controversy was called display.c. A version that was modified by Chris Torek appears in net.sources, Message-ID: { 424@umcp-cs.uucp }http://groups.google.com/groups?selm=424@umcp-cs.uucp. A separate example of a piece of code written by Gosling bears a note that claims he had declared it public domain, but did not "include the infamous Stallman anti-copyright clause" (Message-ID: { 78@tove.uucp }http://groups.google.com/groups?selm=78@tove.uucp ). }~ The "discovery" (not so difficult, since Stallman always distributed the source code along with the binary) that this code had been reused by Stallman led to extensive discussion among EMACS users of issues such as the mechanics of copyright, the nature of infringement, the definition of software, the meaning of public domain, the difference between patent, copyright, and trade secret, and the mechanics of permission and its granting—in short, a discussion that would be repeatedly recapitulated in nearly every software and intellectual property controversy in the future. +={Copyright infringement:EMACS controversy and;EMACS (text editor):legal status of+48;rumor on Usenet+7;Usenet:rumor on+7} + +The story of the controversy reveals the structure of rumor on the Usenet to be a bit like the child’s game of Chinese Whispers, except that the translations are all archived. GNU EMACS 15.34 was released in March 1985. Between March and early June there was no mention of its legal status, but around June 3 messages on the subject began to proliferate. The earliest mention of the issue appeared not on net.emacs, but on fa.info-vax—a newsgroup devoted to discussions of VAX computer systems ("fa" stands for "from Arpanet")—and it included a dialogue, between Ron Natalie and Marty Sasaki, labeled "GNU EMACS: How Public Domain?": "FOO, don’t expect that GNU EMACS is really in the public domain. UNIPRESS seems rather annoyed that there are large portions of it that are marked copyright James Gosling."~{ Message-ID: { 7773@ucbvax.arpa. }http://groups.google.com/groups?selm=7773@ucbvax.arpa }~ This message was reprinted on 4 June 1985 on net.emacs, with the addendum: "RMS’s work is based on a version of Gosling code that existed before Unipress got it. Gosling had put that code into the public domain. Any ,{[pg 194]}, work taking off from the early Gosling code is therefore also public domain."~{ Message-ID: { 11400007@inmet.uucp }http://groups.google.com/groups?selm=11400007@inmet.uucp. }~ + +The addendum was then followed by an extensive reply from Zimmerman, whose CCA EMACS had been based on Warren Montgomery’s Bell Labs EMACS but rewritten to avoid reusing the code, which may account for why his understanding of the issue seems to have been both deep and troubling for him. +={Montgomery, Warren} + +_1 This is completely contrary to Gosling’s public statements. Before he made his arrangements with Unipress, Gosling’s policy was that he would send a free copy of his EMACS to anyone who asked, but he did not (publicly, at least) give anyone else permission to make copies. Once Unipress started selling Gosling’s EMACS, Gosling stopped distributing free copies and still did not grant anyone else permission to make them; instead, he suggested that people buy EMACS from Unipress. All versions of Gosling’s EMACS distributed by him carry his copyright notice, and therefore none of them are in the public domain. Removing copyright notices without the author’s permission is, of course, illegal. Now, a quick check of my GNU EMACS sources shows that sure enough, a number of files have Gosling’s copyright notice in them. What this all means is that unless RMS got written permission from Gosling to distribute his code, all copies of GNU EMACS constitute violations of the copyright law. All those people making such copies, including those people who allow them to be copied off their machines, could each be liable for large sums of money. I think that RMS had better tell us if he has Gosling’s written permission to make these copies. If so, why has he not stated this earlier (preferably in the distribution itself ) and thereby cleared up a potentially major point of confusion? If not, why has he gone ahead and made many, many people liable for criminal prosecution by recommending that they distribute this code without even warning them of their liability? (People who distribute this code would be liable even if they claim that they didn’t see Gosling’s notices; the fact that the notices are there is sufficient. "Ignorance of the law is no excuse.") +={AT&T: version of EMACS;Copyright infringement:permissions and+45} + +_1 Now, I have nothing against free software; it’s a free country and people can do what they want. It’s just that people who do distribute free software had better be sure that they have the legal right to do so, or be prepared to face the consequences. (Jun 9, 1985).~{ Message-ID: { 717@masscomp.uucp }http://groups.google.com/groups?selm=717@masscomp.uucp. }~ + +Stallman replied the next day. ,{[pg 195]}, + +_1 Nobody has any reason to be afraid to use or distribute GNU EMACS. It is well known that I do not believe any software is anyone’s property. However, for the GNU project, I decided it was necessary to obey the law. I have refused to look at code I did not have permission to distribute. About 5% of GNU EMACS is close to (though quite a bit changed from) an old version of Gosling EMACS. I am distributing it for Fen Labalme, who received permission from Gosling to distribute it. It is therefore legal for me to do so. To be scrupulously legal, I put statements at the front of the files concerned, describing this situation. +={Labalme, Fen+8} + +_1 I don’t see anything I should warn people about—except that Zimmerman is going to try to browbeat them.~{ Message-ID: { 4421@mit-eddie.uucp }http://groups.google.com/groups?selm=4421@mit-eddie.uucp. }~ + +Stallman’s original defense for using Gosling’s code was that he had permission to do so. According to him, Fen Labalme had received written permission—whether to make use of or to redistribute is not clear—the display code that was included in GNU EMACS 15.34. According to Stallman, versions of Labalme’s version of Gosling’s version of EMACS were in use in various places (including at Labalme’s employer, Megatest), and Stallman and Labalme considered this a legally defensible position.~{ Message-ID: { 4486@mit-eddie.uucp }http://groups.google.com/groups?selm=4486@mit-eddie.uucp. Stallman also recounts this version of events in "RMS Lecture at KTH (Sweden)," 30 October 1986, http://www.gnu.org/philosophy/stallman-kth.html. }~ +={AT&T:version of EMACS} + +Over the next two weeks, a slew of messages attempted to pick apart and understand the issues of copyright, ownership, distribution, and authorship. Gosling wrote to clarify that GOSMACS had never been in the public domain, but that "unfortunately, two moves have left my records in a shambles," and he is therefore silent on the question of whether he granted permission.~{ Message-ID: { 2334@sun.uucp }http://groups.google.com/groups?selm=2334@sun.uucp. }~ Gosling’s claim could well be strategic: giving permission, had he done so, might have angered Unipress, which expected exclusive control over the version he had sold; by the same token, he may well have approved of Stallman’s re-creation, but not have wanted to affirm this in any legally actionable way. Meanwhile, Zimmerman relayed an anonymous message suggesting that some lawyers somewhere found the "third hand redistribution" argument was legally "all wet."~{ Message-ID: { 732@masscomp.uucp }http://groups.google.com/groups?selm=732@masscomp.uucp. }~ +={authorship;intellectual property:strategy and+17} + +Stallman’s biggest concern was not so much the legality of his own actions as the possibility that people would choose not to use the software because of legal threats (even if such threats were issued only as rumors by former employees of companies that distributed software they had written). Stallman wanted users not only ,{[pg 196]}, to feel safe using his software but to adopt his view that software exists to be shared and improved and that anything that hinders this is a loss for everyone, which necessitates an EMACS commune. +={Copyright infringement:legal threats and;EMACS commune+1} + +Stallman’s legal grounds for using Gosling’s code may or may not have been sound. Zimmerman did his best throughout to explain in detail what kind of permission Stallman and Labalme would have needed, drawing on his own experience with the CCA lawyers and AT&T Bell Labs, all the while berating Stallman for not creating the display code himself. Meanwhile, Unipress posted an official message that said, "UniPress wants to inform the community that portions of the GNU EMACS program are most definitely not public domain, and that use and/or distribution of the GNU EMACS program is not necessarily proper."~{ Message-ID: { 103@unipress.uucp }http://groups.google.com/groups?selm=103@unipress.uucp. }~ The admittedly vague tone of the message left most people wondering what that meant—and whether Unipress intended to sue anyone. Strategically speaking, the company may have wished to maintain good will among hackers and readers of net.emacs, an audience likely composed of many potential customers. Furthermore, if Gosling had given permission to Stallman, then Unipress would themselves have been on uncertain legal ground, unable to firmly and definitively threaten users of GNU EMACS with legal action. In either case, the question of whether or not permission was needed was not in question—only the question of whether it had been granted.~{ With the benefit of hindsight, the position that software could be in the public domain also seems legally uncertain, given that the 1976 changes to USC§17 abolished the requirement to register and, by the same token, to render uncertain the status of code contributed to Gosling and incorporated into GOSMACS. }~ +={AT&T: version of EMACS;Copyright infringement:EMACS controversy and+18} + +However, a more complicated legal issue also arose as a result, one concerning the status of code contributed to Gosling by others. Fen Labalme wrote a message to net.emacs, which, although it did not clarify the legal status of Gosling’s code (Labalme was also unable to find his "permission" from Gosling), did raise a related issue: the fact that he and others had made significant contributions to GOSMACS, which Gosling had incorporated into his version, then sold to Unipress without their permission: "As one of the ‘others’ who helped to bring EMACS [GOSMACS] up to speed, I was distressed when Jim sold the editor to UniPress. This seemed to be a direct violation of the trust that I and others had placed in Jim as we sent him our improvements, modifications, and bug fixes. I am especially bothered by the general mercenary attitude surrounding EMACS which has taken over from the once proud ‘hacker’ ethic—EMACS is a tool that can make all of our lives better. Let’s help it to grow!"~{ Message-ID: { 18@megatest }http://groups.google.com/groups?selm=18@megatest. Note here the use of "once proud hacker ethic," which seems to confirm the perpetual feeling that the ethic has been compromised. }~ +={Hacker ethic+2} + +% ,{[pg 197]}, + +Labalme’s implication, though he may not even have realized this himself, is that Gosling may have infringed on the rights of others in selling the code to Unipress, as a separate message from Joaquim Martillo makes clear: "The differences between current version of Unipress EMACS and Gnu EMACS display.c (a 19 page module) is about 80%. For all the modules which Fen LeBalme [sic] gave RMS permission to use, the differences are similar. Unipress is not even using the disputed software anymore! Now, these modules contain code people like Chris Torek and others contributed when Gosling’s emacs was in the public domain. I must wonder whether these people would have contributed had they known their freely-given code was going to become part of someone’s product."~{ Message-ID: { 287@mit-athena.uucp }http://groups.google.com/groups?selm=287@mit-athena.uucp. }~ + +Indeed, the general irony of this complicated situation was certainly not as evident as it might have been given the emotional tone of the debates: Stallman was using code from Gosling based on permission Gosling had given to Labalme, but Labalme had written code for Gosling which Gosling had commercialized without telling Labalme—conceivably, but not likely, the same code. Furthermore, all of them were creating software that had been originally conceived in large part by Stallman (but based on ideas and work on TECO, an editor written twenty years before EMACS), who was now busy rewriting the very software Gosling had rewritten for UNIX. The "once proud hacker ethic" that Labalme mentions would thus amount not so much to an explicit belief in sharing so much as a fast-and-loose practice of making contributions and fixes without documenting them, giving oral permission to use and reuse, and "losing" records that may or may not have existed—hardly a noble enterprise. +={TECO (text editor and programming language)} + +But by 27 June 1985, all of the legal discussion was rendered moot when Stallman announced that he would completely rewrite the display code in EMACS. + +_1 I have decided to replace the Gosling code in GNU EMACS, even though I still believe Fen and I have permission to distribute that code, in order to keep people’s confidence in the GNU project. + +_1 I came to this decision when I found, this night, that I saw how to rewrite the parts that had seemed hard. I expect to have the job done by the weekend.~{ Message-ID: { 4559@mit-eddie.uucp }http://groups.google.com/groups?selm=4559@mit-eddie.uucp. }~ + +On 5 July, Stallman sent out a message that said: ,{[pg 198]}, + +_1 Celebrate our independence from Unipress! + +_1 EMACS version 16, 100% Gosling-free, is now being tested at several places. It appears to work solidly on Vaxes, but some other machines have not been tested yet.~{ Message-ID: { 4605@mit-eddie.uucp }http://groups.google.com/groups?selm=4605@mit-eddie.uucp. }~ + +The fact that it only took one week to create the code is a testament to Stallman’s widely recognized skills in creating great software—it doesn’t appear to have indicated any (legal) threat or urgency. Indeed, even though Unipress seems also to have been concerned about their own reputation, and despite the implication made by Stallman that they had forced this issue to happen, they took a month to respond. At that point, the Unipress employee Mike Gallaher wrote to insist, somewhat after the fact, that Unipress had no intention of suing anyone—as long as they were using the Gosling-free EMACS version 16 and higher. + +_1 UniPress has no quarrel with the Gnu project. It bothers me that people seem to think we are trying to hinder it. In fact, we hardly did or said much at all, except to point out that the Gnumacs code had James Gosling’s copyright in it. We have not done anything to keep anyone from using Gnumacs, nor do we intend to now that it is "Gosling-free" (version 16.56). + +_1 You can consider this to be an official statement from UniPress: There is nothing in Gnumacs version 16.56 that could possibly cause UniPress to get upset. If you were afraid to use Gnumacs because you thought we would hassle you, don’t be, on the basis of version 16.56.~{ Message-ID: { 104@unipress.uucp }http://groups.google.com/groups?selm=104@unipress.uucp. }~ + +Both Stallman and Unipress received various attacks and defenses from observers of the controversy. Many people pointed out that Stallman should get credit for "inventing" EMACS and that the issue of him infringing on his own invention was therefore ironic. Others proclaimed the innocence and moral character of Unipress, which, it was claimed, was providing more of a service (support for EMACS) than the program itself. +={Copyright infringement:infringement on own invention} + +Some readers interpreted the fact that Stallman had rewritten the display code, whether under pressure from Unipress or not, as confirmation of the ideas expressed in "The GNU Manifesto," namely, that commercial software stifles innovation. According to this logic, precisely because Stallman was forced to rewrite the code, rather than build on something that he himself assumed he had permission ,{[pg 199]}, to do, there was no innovation, only fear-induced caution.~{ Joaquim Martillo, Message-ID: { 287@mit-athena.uucpp }http://groups.google.com/groups?selm=287@mit-athena.uucpp : "Trying to forbid RMS from using discarded code so that he must spend time to reinvent the wheel supports his contention that ‘software hoarders’ are slowing down progress in computer science." }~ On the other hand, latent within this discussion is a deep sense of propriety about what people had created; many people, not only Stallman and Gosling and Zimmerman, had contributed to making EMACS what it was, and most had done so under the assumption, legally correct or not, that it would not be taken away from them or, worse, that others might profit by it. +={GNU Manifesto} + +Gosling’s sale of EMACS is thus of a different order from his participation in the common stewardship of EMACS. The distinction between creating software and maintaining it is a commercial fiction driven in large part by the structure of intellectual property. It mirrors the experience of open systems. Maintaining software can mean improving it, and improving it can mean incorporating the original work and ideas of others. To do so by the rules of a changing intellectual-property structure forces different choices than to do so according to an informal hacker ethic or an experimental "commune." One programmer’s minor improvement is another programmer’s original contribution. +={software development:creating vs. maintaining} + +2~ The Context of Copyright + +The EMACS controversy occurred in a period just after some of the largest changes to U.S. intellectual-property law in seventy years. Two aspects of this context are worth emphasizing: (1) practices and knowledge about the law change slowly and do not immediately reflect the change in either the law or the strategies of actors; (2) U.S. law creates a structural form of uncertainty in which the interplay between legislation and case law is never entirely certain. In the former aspect, programmers who grew up in the 1970s saw a commercial practice entirely dominated by trade secret and patent protection, and very rarely by copyright; thus, the shift to widespread use of copyright law (facilitated by the 1976 and 1980 changes to the law) to protect software was a shift in thinking that only slowly dawned on many participants, even the most legally astute, since it was a general shift in strategy as well as a statutory change. In the latter aspect, the 1976 and 1980 changes to the copyright law contained a number of uncertainties that would take over a decade to be worked out in case law, issues such as the copyrightability of software, the definition of software, and the meaning ,{[pg 200]}, of infringement in software copyright, to say nothing of the impact of the codification of fair use and the removal of the requirement to register (issues that arguably went unnoticed until the turn of the millennium). Both aspects set the stage for the EMACS controversy and Stallman’s creation of the GPL. +={patents on software+1;practices:opposed to legal changes+2;Trade secret law+6;uncertainty, in the law+20;copyright infringement;Copyright:changes in 1976+20|changes in 1980+20|requirement to register:software and copyrightability+3;fair use+1;software:registration of copyright} + +Legally speaking, the EMACS controversy was about copyright, permission, and the meanings of a public domain and the reuse of software (and, though never explicitly mentioned, fair use). Software patenting and trade-secret law are not directly concerned, but they nonetheless form a background to the controversy. Many of the participants expressed a legal and conventional orthodoxy that software was not patentable, that is, that algorithms, ideas, or fundamental equations fell outside the scope of patent, even though the 1981 case Diamond v. Diehr is generally seen as the first strong support by the courts for forcing the United States Patent and Trademark Office to grant patents on software.~{ Diamond V. Diehr, 450 U.S. 175 (1981), the Supreme Court decision, forced the patent office to grant patents on software. Interestingly, software patents had been granted much earlier, but went either uncontested or unenforced. An excellent example is patent 3,568,156, held by Ken Thompson, on regular expression pattern matching, granted in 1971. }~ Software, this orthodoxy went, was better protected by trade-secret law (a state-by-state law, not a federal statute), which provided protection for any intellectual property that an owner reasonably tried to maintain as a secret. The trade-secret status of UNIX, for example, meant that all the educational licensees who were given the source code of UNIX had agreed to keep it secret, even though it was manifestly circulating the world over; one could therefore run afoul of trade-secret rules if one looked at the source code (e.g., signed a nondisclosure license or was shown the code by an employee) and then implemented something similar. +={source code+1} + +By contrast, copyright law was rarely deployed in matters of software production. The first copyright registration of software occurred in 1964, but the desirability of relying on copyright over trade secret was uncertain well into the 1970s.~{ Calvin Mooers, in his 1975 article "Computer Software and Copyright," suggests that the IBM unbundling decision opened the doors to thinking about copyright protection. }~ Some corporations, like IBM, routinely marked all source code with a copyright symbol. Others asserted it only on the binaries they distributed or in the license agreements. The case of software on the UNIX operating system and its derivatives is particularly haphazard, and the existence of copyright notices by the authors varies widely. An informal survey by Barry Gold singled out only James Gosling, Walter Tichy (author of rcs), and the RAND Corporation as having adequately labeled source code with copyright notices.~{ Message-ID: { 933@sdcrdcf.uucp }http://groups.google.com/groups?selm=933@sdcrdcf.uucp. }~ Gosling was also the first to register EMACS as copyrighted software in 1983, ,{[pg 201]}, while Stallman registered GNU EMACS just after version 15.34 was released in May 1985.~{ Gosling’s EMACS 264 (Stallman copied EMACS 84) is registered with the Library of Congress, as is GNU EMACS 15.34. Gosling’s EMACS Library of Congress registration number is TX-3-407-458, registered in 1992. Stallman’s registration number is TX-1-575-302, registered in May 1985. The listed dates are uncertain, however, since there are periodic re-registrations and updates. }~ + +The uncertainty of the change from reliance on trade secret to reliance on copyright is clear in some of the statements made by Stallman around the reuse of Gosling’s code. Since neither Stallman nor Gosling sought to keep the program secret in any form—either by licensing it or by requiring users to keep it secret—there could be no claims of trade-secret status on either program. Nonetheless, there was frequent concern about whether one had seen any code (especially code from a UNIX operating system, which is covered by trade secret) and whether code that someone else had seen, rewritten, or distributed publicly was therefore "in the public domain."~{ This is particularly confusing in the case of "dbx." Message-ID: { 4437@mit-eddie.uucp }http://groups.google.com/groups?selm=4437@mit-eddie.uucp, Message-ID: { 6238@shasta.arpa }http://groups.google.com/groups?selm=6238@shasta.arpa, and Message-ID: { 730@masscomp.uucp }http://groups.google.com/groups?selm=730@masscomp.uucp. }~ But, at the same time, Stallman was concerned that rewriting Gosling’s display code would be too difficult: "Any display code would have a considerable resemblance to that display code, just by virtue of doing the same job. Without any clear idea of exactly how much difference there would have to be to reassure you users, I cannot tell whether the rewrite would accomplish that. The law is not any guidance here. . . . Writing display code that is significantly different is not easy."~{ Message-ID: { 4489@mit-eddie.uucp }http://groups.google.com/groups?selm=4489@mit-eddie.uucp. }~ +={trade secret law:relationship to public domain+3} + +Stallman’s strategy for rewriting software, including his plan for the GNU operating system, also involved "not looking at" anyone else’s code, so as to ensure that no trade-secret violations would occur. Although it was clear that Gosling’s code was not a trade secret, it was also not obvious that it was "in the public domain," an assumption that might be made about other kinds of software protected by trade secret. Under trade-secret rules, Gosling’s public distribution of GOSMACS appears to give the green light for its reuse, but under copyright law, a law of strict liability, any unauthorized use is a violation, regardless of how public the software may have been.~{ A standard practice well into the 1980s, and even later, was the creation of so-called clean-room versions of software, in which new programmers and designers who had not seen the offending code were hired to ,{[pg 336]}, re-implement it in order to avoid the appearance of trade-secret violation. Copyright law is a strict liability law, meaning that ignorance does not absolve the infringer, so the practice of "clean-room engineering" seems not to have been as successful in the case of copyright, as the meaning of infringement remains murky. }~ + +The fact of trade-secret protection was nonetheless an important aspect of the EMACS controversy: the version of EMACS that Warren Montgomery had created at Bell Labs (and on which Zimmerman’s CCA version would be based) was the subject of trade-secret protection by AT&T, by virtue of being distributed with UNIX and under a nondisclosure agreement. AT&T was at the time still a year away from divestiture and thus unable to engage in commercial exploitation of the software. When CCA sought to commercialize ,{[pg 202]}, the version of UNIX Zimmerman had based on Montgomery’s, it was necessary to remove any AT&T code in order to avoid violating their trade-secret status. CCA in turn distributed their EMACS as either binary or as source (the former costing about $1,000, the latter as much as $7,000) and relied on copyright rather than trade-secret protection to prevent unauthorized uses of their software.~{ Message-ID: { 730@masscomp.uucp }http://groups.google.com/groups?selm=730@masscomp.uucp. AT&T was less concerned about copyright infringement than they were about the status of their trade secrets. Zimmerman quotes a statement (from Message-ID: { 108@emacs.uucp }http://groups.google.com/groups?selm=108@emacs.uucp ) that he claims indicates this: "Beginning with CCA EMACS version 162.36z, CCA EMACS no longer contained any of the code from Mr. Montgomery’s EMACS, or any methods or concepts which would be known only by programmers familiar with BTL [Bell Labs] EMACS of any version." The statement did not mention copyright, but implied that CCA EMACS did not contain any AT&T trade secrets, thus preserving their software’s trade-secret status. The fact that EMACS was a conceptual design—a particular kind of interface, a LISP interpreter, and extensibility—that was very widely imitated had no apparent bearing on the legal status of these secrets. }~ +={AT&T:divestiture in;Computer Corporation of America (CCA);Montgomery, Warren;Zimmerman, Steve} + +The uncertainty over copyright was thus in part a reflection of a changing strategy in the computer-software industry, a kind of uneven development in which copyright slowly and haphazardly came to replace trade secret as the main form of intellectual-property protection. This switch had consequences for how noncommercial programmers, researchers, and amateurs might interpret their own work, as well as for the companies whose lawyers were struggling with the same issues. Of course, copyright and trade-secret protection are not mutually exclusive, but they structure the need for secrecy in different ways, and they make different claims on issues like similarity, reuse, and modification. +={intellectual property:strategy and+1;modifiability;secrecy} + +The 1976 changes to copyright law were therefore extremely significant in setting out a new set of boundaries and possibilities for intellectual-property arguments, arguments that created a different kind of uncertainty from that of a changing commercial strategy: a structural uncertainty created by the need for a case law to develop around the statutory changes implemented by Congress. + +The Copyright Act of 1976 introduced a number of changes that had been some ten years in the making, largely organized around new technologies like photocopier machines, home audiotaping, and the new videocassette recorders. It codified fair-use rights, it removed the requirement to register, and it expanded the scope of copyrightable materials considerably. It did not, however, explicitly address software, an oversight that frustrated many in the computer industry, in particular the young software industry. Pursuant to this oversight, the National Commission on New Technological Uses of Copyright (CONTU) was charged with making suggestions for changes to the law with respect to software. It was therefore only in 1980 that Congress implemented these changes, adding software to title 17 of the U.S. copyright statute as something that could be considered copyrightable by law.~{ CONTU Final Report, http://digital-law-online.info/CONTU/contu1.html (accessed 8 December 2006). }~ +={CONTU report} + +The 1980 amendment to the copyright law answered one of three lingering questions about the copyrightability of software: the simple question of whether it was copyrightable material at all. Congress ,{[pg 203]}, answered yes. It did not, however, designate what constituted "software." During the 1980s, a series of court cases helped specify what counted as software, including source code, object code (binaries), screen display and output, look and feel, and microcode and firmware.~{ The cases that determine the meaning of the 1976 and 1980 amendments begin around 1986: Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., et al., U.S. Third Circuit Court of Appeals, 4 August 1986, 797 F.2d 1222, 230 USPQ 481, affirming that "structure (or sequence or organization)" of software is copyrightable, not only the literal software code; Computer Associates International, Inc. v. Altai, Inc., U.S. Second Circuit Court of Appeals, 22 June 1992, 982 F.2d 693, 23 USPQ 2d 1241, arguing that the structure test in Whelan was not sufficient to determine infringement and thus proposing a three-part "abstraction-filiation-comparison" test; Apple Computer, Inc. v. Microsoft Corp, U.S. Ninth Circuit Court of Appeals, 1994, 35 F.3d 1435, finding that the "desktop metaphor" used in Macintosh and Windows was not identical and thus did not constitute infringement; Lotus Development Corporation v. Borland International, Inc. (94-2003), 1996, 513 U.S. 233, finding that the "look and feel" of a menu interface was not copyrightable. }~ The final question, which the courts are still faced with adjudicating, concerns how much similarity constitutes an infringement in each of these cases. The implications of the codification of fair use and the requirement to register continue to unfold even into the present. +={fair use;intellectual property+20;source code:legal definition and+5;Software:legal definition of source code and+5|registration of copyright+1} + +The EMACS controversy confronts all three of these questions. Stallman’s initial creation of EMACS was accomplished under conditions in which it was unclear whether copyright would apply (i.e., before 1980). Stallman, of course, did not attempt to copyright the earliest versions of EMACS, but the 1976 amendments removed the requirement to register, thus rendering everything written after 1978 automatically copyrighted. Registration represented only an additional effort to assert ownership in cases of suspected infringement. + +Throughout this period, the question of whether software was copyrightable—or copyrighted—was being answered differently in different cases: AT&T was relying on trade-secret status; Gosling, Unipress, and CCA negotiated over copyrighted material; and Stallman was experimenting with his "commune." Although the uncertainty was answered statutorily by the 1980 amendment, not everyone instantly grasped this new fact or changed practices based on it. There is ample evidence throughout the Usenet archive that the 1976 changes were poorly understood, especially by comparison with the legal sophistication of hackers in the 1990s and 2000s. Although the law changed in 1980, practices changed more slowly, and justifications crystallized in the context of experiments like that of GNU EMACS. +={trade secret law;Usenet} + +Further, a tension emerged between the meaning of source code and the meaning of software. On the one hand was the question of whether the source code or the binary code was copyrightable, and on the other was the question of defining the boundaries of software in a context wherein all software relies on other software in order to run at all. For instance, EMACS was originally built on top of TECO, which was referred to both as an editor and as a programming language; even seemingly obvious distinctions (e.g., application vs. programming language) were not necessarily always clear. ,{[pg 204]}, If EMACS was an application written in TECO qua programming language, then it would seem that EMACS should have its own copyright, distinct from any other program written in TECO. But if EMACS was an extension or modification of TECO qua editor, then it would seem that EMACS was a derivative work and would require the explicit permission of the copyright holder. +={TECO (text editor and programming language)} + +Further, each version of EMACS, in order to be EMACS, needed a LISP interpreter in order to make the extensible interface similar across all versions. But not all versions used the same LISP interpreter. Gosling’s used an interpreter called MOCKLISP (mlisp in the trademarked Unipress version), for instance. The question of whether the LISP interpreter was a core component of the software or an "environment" needed in order to extend the application was thus also uncertain and unspecified in the law. While both might be treated as software suitable for copyright protection, both might also be understood as necessary components out of which copyrightable software would be built.~{ The relationship between the definition of source and target befuddles software law to this day, one of the most colorful examples being the DeCSS case. See Coleman, "The Social Construction of Freedom," chap. 1: Gallery of CSS Descramblers, http://www.cs.cmu.edu/~dst/DeCSS/gallery/. }~ +={LISP (programming language):interpreter in EMACS;Unipress} + +What’s more, both the 1976 and 1980 amendments are silent on the copyright status of source code vs. binary code. While all the versions of EMACS were distributed in binary, Stallman and Gosling both included the source to allow users to modify it and extend it, but they differed on the proper form of redistribution. The threshold between modifying software for oneself and copyright infringement was not yet clear, and it hung on the meaning of redistribution. Changing the software for use on a single computer might be necessary to get it to run, but by the early days of the Arpanet, innocently placing that code in a public directory on one computer could look like mass distribution.~{ An interesting addendum here is that the manual for EMACS was also released at around the same time as EMACS 16 and was available ,{[pg 337]}, as a TeX file. Stallman also attempted to deal with the paper document in the same fashion (see Message-ID: 4734@mit-eddie.uucp, 19 July 1985), and this would much later become a different and trickier issue that would result in the GNU Free Documentation License. }~ +={copyright infringement:redistribution of software as;redistribution of software+4} + +Finally, the question of what constitutes infringement was at the heart of this controversy and was not resolved by law or by legal adjudication, but simply by rewriting the code to avoid the question. Stallman’s use of Gosling’s code, his claim of third-hand permission, the presence or absence of written permission, the sale of GOSMACS to Unipress when it most likely contained code not written by Gosling but copyrighted in his name—all of these issues complicated the question of infringement to the point where Stallman’s only feasible option for continuing to create software was to avoid using anyone else’s code at all. Indeed, Stallman’s decision to use Gosling’s code (which he claims to have changed in significant portions) might have come to nothing if he had unethically ,{[pg 205]}, and illegally chosen not to include the copyright notice at all (under the theory that the code was original to Stallman, or an imitation, rather than a portion of Gosling’s work). Indeed, Chris Torek received Gosling’s permission to remove Gosling’s name and copyright from the version of display.c he had heavily modified, but he chose not to omit them: "The only reason I didn’t do so is that I feel that he should certainly be credited as the inspiration (at the very least) for the code."~{ Message-ID: { 659@umcp-cs.uucp }http://groups.google.com/groups?selm=659@umcp-cs.uucp. }~ Likewise, Stallman was most likely concerned to obey the law and to give credit where credit was due, and therefore left the copyright notice attached—a clear case of blurred meanings of authorship and ownership. +={GOSMACS (version of EMACS);authorship:ownership vs.;Torek, Chris} + +In short, the interplay between new statutes and their settlement in court or in practice was a structural uncertainty that set novel constraints on the meaning of copyright, and especially on the norms and forms of permission and reuse. GNU EMACS 15.34 was the safest option—a completely new version that performed the same tasks, but in a different manner, using different algorithms and code. + +Even as it resolved the controversy, however, GNU EMACS posed new problems for Stallman: how would the EMACS commune survive if it wasn’t clear whether one could legally use another person’s code, even if freely contributed? Was Gosling’s action in selling work by others to Unipress legitimate? Would Stallman be able to enforce its opposite, namely, prevent people from commercializing EMACS code they contributed to him? How would Stallman avoid the future possibility of his own volunteers and contributors later asserting that he had infringed on their copyright? +={copyright infringement:legal threats and+2} + +By 1986, Stallman was sending out a letter that recorded the formal transfer of copyright to the Free Software Foundation (which he had founded in late 1985), with equal rights to nonexclusive use of the software.~{ Message-ID: { 8605202356.aa12789@ucbvax.berkeley.edu }http://groups.google.com/groups?selm=8605202356.aa12789@ucbvax.berkeley.edu. }~ While such a demand for the expropriation of copyright might seem contrary to the aims of the GNU project, in the context of the unfolding copyright law and the GOSMACS controversy it made perfect sense. Having been accused himself of not having proper permission to use someone else’s copyrighted material in his free version of GNU EMACS, Stallman took steps to forestall such an event in the future. +={copyright:transfer of;Free Software Foundation+8} + +The interplay between technical and legal issues and "ethical" concerns was reflected in the practical issues of fear, intimidation, and common-sense (mis)understandings of intellectual-property ,{[pg 206]}, law. Zimmerman’s veiled threats of legal liability were directed not only at Stallman but at anyone who was using the program Stallman had written; breaking the law was, for Zimmerman, an ethical lapse, not a problem of uncertainty and change. Whether or not such an interpretation of the law was correct, it did reveal the mechanisms whereby a low level of detailed knowledge about the law—and a law in flux, at that (not to mention the litigious reputation of the U.S. legal system worldwide)—often seemed to justify a sense that buying software was simply a less risky option than acquiring it for free. Businesses, not customers, it was assumed, would be liable for such infringements. By the same token, the sudden concern of software programmers (rather than lawyers) with the detailed mechanics of copyright law meant that a very large number of people found themselves asserting common-sense notions, only to be involved in a flame war over what the copyright law "actually says." +={Zimmerman, Steve} + +Such discussion has continued and grown exponentially over the last twenty years, to the point that Free Software hackers are now nearly as deeply educated about intellectual property law as they are about software code.~{ See Coleman, "The Social Construction of Freedom," chap. 6, on the Debian New Maintainer Process, for an example of how induction into a Free Software project stresses the legal as much as the technical, if not more. }~ Far from representing the triumph of the hacker ethic, the GNU General Public License represents the concrete, tangible outcome of a relatively wide-ranging cultural conversation hemmed in by changing laws, court decisions, practices both commercial and academic, and experiments with the limits and forms of new media and new technology. +={experimentation;hacker ethic+9;hackers} + +2~ Conclusion + +The rest of the story is quickly told: Stallman resigned from the AI Lab at MIT and started the Free Software Foundation in 1985; he created a raft of new tools, but ultimately no full UNIX operating system, and issued General Public License 1.0 in 1989. In 1990 he was awarded a MacArthur "genius grant." During the 1990s, he was involved in various high-profile battles among a new generation of hackers; those controversies included the debate around Linus Torvalds’s creation of Linux (which Stallman insisted be referred to as GNU/Linux), the forking of EMACS into Xemacs, and Stallman’s own participation in—and exclusion from—conferences and events devoted to Free Software. ,{[pg 207]}, +={artificial Intelligence Lab (AI Lab), at MIT+6;Linux (Free Software project);Massachusetts Institute of Technology (MIT)+6;Torvalds, Linus} + +Between 1986 and 1990, the Free Software Foundation and its software became extremely well known among geeks. Much of this had to do with the wealth of software that they produced and distributed via Usenet and Arpanet. And as the software circulated and was refined, so were the new legal constraints and the process of teaching users to understand what they could and could not do with the software—and why it was not in the public domain. +={Arpanet (network);geeks;Usenet} + +Each time a new piece of software was released, it was accompanied by one or more text files which explained what its legal status was. At first, there was a file called DISTRIB, which contained an explanation of the rights the new owner had to modify and redistribute the software.~{ For example, Message-ID: { 5745@ucbvax.arpa }http://groups.google.com/groups?selm=5745@ucbvax.arpa. }~ DISTRIB referenced a file called COPYING, which contained the "GNU EMACS copying permission notice," also known as the GNU EMACS GPL. The first of these licenses listed the copyright holder as Richard Stallman (in 1985), but by 1986 all licenses referred to the Free Software Foundation as the copyright holder. +={General Public License (GPL):development of+2} + +As the Free Software Foundation released other pieces of software, the license was renamed—GNU CC GPL, a GNU Bison GPL, a GNU GDB GPL, and so on, all of which were essentially the same terms—in a file called COPYING, which was meant to be distributed along with the software. In 1988, after the software and the licenses had become considerably more widely available, Stallman made a few changes to the license that relaxed some of the terms and specified others.~{ See Message-ID: { 8803031948.aa01085@venus.berkeley.edu }http://groups.google.com/groups?selm=8803031948.aa01085@venus.berkeley.edu. }~ This new version would become the GNU GPL 1.0. By the time Free Software emerged into the public consciousness in the late 1990s, the GPL had reached version 2.0, and the Free Software Foundation had its own legal staff. + +The creation of the GPL and the Free Software Foundation are often understood as expressions of the hacker ethic, or of Stallman’s ideological commitment to freedom. But the story of EMACS and the complex technical and legal details that structure it illustrate how the GPL is more than just a hack: it was a novel, privately ordered legal "commune." It was a space thoroughly independent of, but insinuated into the existing bedrock of rules and practices of the world of corporate and university software, and carved out of the slippery, changing substance of intellectual-property statutes. At a time when the giants of the software industry were fighting to create a different kind of openness—one that preserved and would even strengthen existing relations of intellectual property—this ,{[pg 208]}, hack was a radical alternative that emphasized the sovereignty not of a national or corporate status quo, but of self-fashioning individuals who sought to opt out of that national-corporate unity. The creation of the GNU GPL was not a return to a golden age of small-scale communities freed from the dominating structures of bureaucratic modernity, but the creation of something new out of those structures. It relied on and emphasized, not their destruction, but their stability—at least until they are no longer necessary. +={Open Systems} + +The significance of the GPL is due to its embedding within and emergence from the legal and technical infrastructure. Such a practice of situated reworking is what gives Free Software—and perhaps all forms of engineering and creative practice—its warp and weft. Stallman’s decision to resign from the AI Lab and start the Free Software Foundation is a good example; it allowed Stallman no only to devote energy to Free Software but also to formally differentiate the organizations, to forestall at least the potential threat that MIT (which still provided him with office space, equipment, and network connection) might decide to claim ownership over his work. One might think that the hacker ethic and the image of self-determining free individuals would demand the total absence of organizations, but it requires instead their proliferation and modulation. Stallman himself was never so purely free: he relied on the largesse of MIT’s AI Lab, without which he would have had no office, no computer, no connection to the network, and indeed, for a while, no home. +={infrastructure;proliferation of software} + +The Free Software Foundation represents a recognition on his part that individual and communal independence would come at the price of a legally and bureaucratically recognizable entity, set apart from MIT and responsible only to itself. The Free Software Foundation took a classic form: a nonprofit organization with a hierarchy. But by the early 1990s, a new set of experiments would begin that questioned the look of such an entity. The stories of Linux and Apache reveal how these ventures both depended on the work of the Free Software Foundation and departed from the hierarchical tradition it represented, in order to innovate new similarly embedded sociotechnical forms of coordination. +={Free Software Foundation:Linux and Apache vs.+1} + +The EMACS text editor is still widely used, in version 22.1 as of 2007, and ported to just about every conceivable operating system. The controversy with Unipress has faded into the distance, as newer and more intense controversies have faced Stallman and Free Software, ,{[pg 209]}, but the GPL has become the most widely used and most finely scrutinized of the legal licenses. More important, the EMACS controversy was by no means the only one to have erupted in the lives of software programmers; indeed, it has become virtually a rite of passage for young geeks to be involved in such debates, because it is the only way in which the technical details and the legal details that confront geeks can be explored in the requisite detail. Not all such arguments end in the complete rewriting of source code, and today many of them concern the attempt to convince or evangelize for the release of source code under a Free Software license. The EMACS controversy was in some ways a primal scene—a traumatic one, for sure—that determined the outcome of many subsequent fights by giving form to the Free Software license and its uses. + +1~ 7. Coordinating Collaborations +={coordination (component of Free Software)+3} + +% ,{[pg 210]}, + +The final component of Free Software is coordination. For many participants and observers, this is the central innovation and essential significance of Open Source: the possibility of enticing potentially huge numbers of volunteers to work freely on a software project, leveraging the law of large numbers, "peer production," "gift economies," and "self-organizing social economies."~{ Research on coordination in Free Software forms the central core of recent academic work. Two of the most widely read pieces, Yochai Benkler’s "Coase’s Penguin" and Steven Weber’s The Success of Open Source, are directed at classic research questions about collective action. Rishab Ghosh’s "Cooking Pot Markets" and Eric Raymond’s The Cathedral and the Bazaar set many of the terms of debate. Josh Lerner’s and Jean Tirole’s "Some Simple Economics of Open Source" was an early contribution. Other important works on the subject are Feller et al., Perspectives on Free and Open Source Software; Tuomi, Networks of Innovation; Von Hippel, Democratizing Innovation. }~ Coordination in Free Software is of a distinct kind that emerged in the 1990s, directly out of the issues of sharing source code, conceiving open systems, and writing copyright licenses—all necessary precursors to the practices of coordination. The stories surrounding these issues find continuation in those of the Linux operating-system kernel, of the Apache Web server, and of Source Code Management tools (SCMs); together these stories reveal how coordination worked and what it looked like in the 1990s. +={Free Software:open source vs.;Open Source:Free Software vs.;peer production;practices:five components of Free Software+2;Source Code Management tools (SCMs)} + +Coordination is important because it collapses and resolves the distinction between technical and social forms into a meaningful ,{[pg 211]}, whole for participants. On the one hand, there is the coordination and management of people; on the other, there is the coordination of source code, patches, fixes, bug reports, versions, and distributions—but together there is a meaningful technosocial practice of managing, decision-making, and accounting that leads to the collaborative production of complex software and networks. Such coordination would be unexceptional, essentially mimicking long-familiar corporate practices of engineering, except for one key fact: it has no goals. Coordination in Free Software privileges adaptability over planning. This involves more than simply allowing any kind of modification; the structure of Free Software coordination actually gives precedence to a generalized openness to change, rather than to the following of shared plans, goals, or ideals dictated or controlled by a hierarchy of individuals.~{ On the distinction between adaptability and adaptation, see Federico Iannacci, "The Linux Managing Model," http://opensource.mit.edu/papers/iannacci2.pdf. Matt Ratto characterizes the activity of Linux-kernel developers as a "culture of re-working" and a "design for re-design," and captures the exquisite details of such a practice both in coding and in the discussion between developers, an activity he dubs the "pressure of openness" that "results as a contradiction between the need to maintain productive collaborative activity and the simultaneous need to remain open to new development directions" ("The Pressure of Openness," 112-38). }~ +={adaptability:planning vs.+1|as a form of critique+1|adaptation vs.;coordination (component of Free Software):individual virtuosity vs. hierarchical planning+2;critique, Free Software as+1;goals, lack of in Free Software+1;hackers:curiosity and virtuosity of+1;hierarchy, in coordination+5;planning+1} + +Adaptability does not mean randomness or anarchy, however; it is a very specific way of resolving the tension between the individual curiosity and virtuosity of hackers, and the collective coordination necessary to create and use complex software and networks. No man is an island, but no archipelago is a nation, so to speak. Adaptability preserves the "joy" and "fun" of programming without sacrificing the careful engineering of a stable product. Linux and Apache should be understood as the results of this kind of coordination: experiments with adaptability that have worked, to the surprise of many who have insisted that complexity requires planning and hierarchy. Goals and planning are the province of governance—the practice of goal-setting, orientation, and definition of control—but adaptability is the province of critique, and this is why Free Software is a recursive public: it stands outside power and offers powerful criticism in the form of working alternatives. It is not the domain of the new—after all Linux is just a rewrite of UNIX—but the domain of critical and responsive public direction of a collective undertaking. +={Linux (Free Software project)+8;novelty, of Free Software;recursive public+1} + +Linux and Apache are more than pieces of software; they are organizations of an unfamiliar kind. My claim that they are "recursive publics" is useful insofar as it gives a name to a practice that is neither corporate nor academic, neither profit nor nonprofit, neither governmental nor nongovernmental. The concept of recursive public includes, within the spectrum of political activity, the creation, modification, and maintenance of software, networks, and legal documents. While a "public" in most theories is a body of ,{[pg 212]}, people and a discourse that give expressive form to some concern, "recursive public" is meant to suggest that geeks not only give expressive form to some set of concerns (e.g., that software should be free or that intellectual property rights are too expansive) but also give concrete infrastructural form to the means of expression itself. Linux and Apache are tools for creating networks by which expression of new kinds can be guaranteed and by which further infrastructural experimentation can be pursued. For geeks, hacking and programming are variants of free speech and freedom of assembly. +={public sphere:theories of;Apache (Free Software project)+4;experimentation;infrastructure} + +2~ From UNIX to Minix to Linux +={Minix (operating system)+1;Tanenbaum, Andrew+27} + +Linux and Apache are the two paradigmatic cases of Free Software in the 1990s, both for hackers and for scholars of Free Software. Linux is a UNIX-like operating-system kernel, bootstrapped out of the Minix operating system created by Andrew Tanenbaum.~{ Linux is often called an operating system, which Stallman objects to on the theory that a kernel is only one part of an operating system. Stallman suggests that it be called GNU/Linux to reflect the use of GNU operating-system tools in combination with the Linux kernel. This not-so-subtle ploy to take credit for Linux reveals the complexity of the distinctions. The kernel is at the heart of hundreds of different "distributions"—such as Debian, Red Hat, SuSe, and Ubuntu Linux—all of which also use GNU tools, but ,{[pg 338]}, which are often collections of software larger than just an operating system. Everyone involved seems to have an intuitive sense of what an operating system is (thanks to the pedagogical success of UNIX), but few can draw any firm lines around the object itself. }~ Apache is the continuation of the original National Center for Supercomputing Applications (NCSA) project to create a Web server (Rob McCool’s original program, called httpd), bootstrapped out of a distributed collection of people who were using and improving that software. +={McCool, Rob;httpd;modulation:of Free Software;National Center for Super Computing Applications (NCSA);Apache (Free Software project)+3} + +Linux and Apache are both experiments in coordination. Both projects evolved decision-making systems through experiment: a voting system in Apache’s case and a structured hierarchy of decision-makers, with Linus Torvalds as benevolent dictator, in Linux’s case. Both projects also explored novel technical tools for coordination, especially Source Code Management (SCM) tools such as Concurrent Versioning System (cvs). Both are also cited as exemplars of how "fun," "joy," or interest determine individual participation and of how it is possible to maintain and encourage that participation and mutual aid instead of narrowing the focus or eliminating possible routes for participation. +={Concurrent Versioning System (cvs);experimentation+1;fun, and development of Linux;Source Code Management tools (SCMs);Torvalds, Linus+3} + +Beyond these specific experiments, the stories of Linux and Apache are detailed here because both projects were actively central to the construction and expansion of the Internet of the 1990s by allowing a massive number of both corporate and noncorporate sites to cheaply install and run servers on the Internet. Were Linux and Apache nothing more than hobbyist projects with a few thousand ,{[pg 213]}, interested tinkerers, rather than the core technical components of an emerging planetary network, they would probably not represent the same kind of revolutionary transformation ultimately branded a "movement" in 1998-99. +={movement (component of Free Software)} + +Linus Torvalds’s creation of the Linux kernel is often cited as the first instance of the real "Open Source" development model, and it has quickly become the most studied of the Free Software projects.~{ Eric Raymond directed attention primarily to Linux in The Cathedral and the Bazaar. Many other projects preceded Torvalds’s kernel, however, including the tools that form the core of both UNIX and the Internet: Paul Vixie’s implementation of the Domain Name System (DNS) known as BIND; Eric Allman’s sendmail for routing e-mail; the scripting languages perl (created by Larry Wall), python (Guido von Rossum), and tcl/tk (John Ousterhout); the X Windows research project at MIT; and the derivatives of the original BSD UNIX, FreeBSD and OpenBSD. On the development model of FreeBSD, see Jorgensen, "Putting It All in the Trunk" and "Incremental and Decentralized Integration in FreeBSD." The story of the genesis of Linux is very nicely told in Moody, Rebel Code, and Williams, Free as in Freedom; there are also a number of papers—available through Free/Opensource Research Community, http://freesoftware.mit.edu/—that analyze the development dynamics of the Linux kernel. See especially Ratto, "Embedded Technical Expression" and "The Pressure of Openness." I have conducted much of my analysis of Linux by reading the Linux Kernel Mailing List archives, http://lkml.org. There are also annotated summaries of the Linux Kernel Mailing List discussions at http://kerneltraffic.org. }~ Following its appearance in late 1991, Linux grew quickly from a small, barely working kernel to a fully functional replacement for the various commercial UNIX systems that had resulted from the UNIX wars of the 1980s. It has become versatile enough to be used on desktop PCs with very little memory and small CPUs, as well as in "clusters" that allow for massively parallel computing power. +={perl (programming language);python (programming language);tcl/tk (programming language)} + +When Torvalds started, he was blessed with an eager audience of hackers keen on seeing a UNIX system run on desktop computers and a personal style of encouragement that produced enormous positive feedback. Torvalds is often given credit for creating, through his "management style," a "new generation" of Free Software—a younger generation than that of Stallman and Raymond. Linus and Linux are not in fact the causes of this change, but the results of being at the right place at the right time and joining together a number of existing components. Indeed, the title of Torvalds’s semi-autobiographical reflection on Linux—Just for Fun: The Story of an Accidental Revolutionary—captures some of the character of its genesis. +={coordination (component of Free Software)+9;hackers+1;Raymond, Eric Steven;Stallman, Richard;Torvalds, Linus:autobiography of;UNIX operating system} + +The "fun" referred to in the title reflects the privileging of adaptability over planning. Projects, tools, people, and code that were fun were those that were not dictated by existing rules and ideas. Fun, for geeks, was associated with the sudden availability, especially for university students and amateur hackers, of a rapidly expanding underground world of networks and software—Usenet and the Internet especially, but also university-specific networks, online environments and games, and tools for navigating information of all kinds. Much of this activity occurred without the benefit of any explicit theorization, with the possible exception of the discourse of "community" (given print expression by Howard Rheingold in 1993 and present in nascent form in the pages of Wired and Mondo 2000) that took place through much of the 1990s.~{ Howard Rheingold, The Virtual Community. On the prehistory of this period and the cultural location of some key aspects, see Turner, From Counterculture to Cyberculture. }~ The late 1980s and early 1990s gave rise to vast experimentation with the collaborative possibilities of the Internet as a medium. Particularly attractive was ,{[pg 214]}, that this medium was built using freely available tools, and the tools themselves were open to modification and creative reuse. It was a style that reflected the quasi-academic and quasi-commercial environment, of which the UNIX operating system was an exemplar— not pure research divorced from commercial context, nor entirely the domain of commercial rapacity and intellectual property. +={adaptability:planning vs.;Internet:early development+1|relation to Free Software+1;Rheingold, Howard;rumor on Usenet+8;Usenet:rumor on+8} + +Fun included the creation of mailing lists by the spread of software such as list-serv and majordomo; the collaborative maintenance and policing of Usenet; and the creation of Multi-User Dungeons (MUDs) and MUD Object Orienteds (MOOs), both of which gave game players and Internet geeks a way to co-create software environments and discover many of the problems of management and policing that thereby emerged.~{ Julian Dibbell’s "A Rape in Cyberspace" and Sherry Turkle’s Life on the Screen are two classic examples of the detailed forms of life and collaborative ethical creation that preoccupied denizens of these worlds. }~ It also included the increasing array of "information services" that were built on top of the Internet, like archie, gopher, Veronica, WAIS, ftp, IRC—all of which were necessary to access the growing information wealth of the underground community lurking on the Internet. The meaning and practice of coordination in all of these projects was up for grabs: some were organized strictly as university research projects (gopher), while others were more fluid and open to participation and even control by contributing members (MOOs and MUDs). Licensing issues were explicit in some, unclear in some, and completely ignored in others. Some projects had autocratic leaders, while others experimented with everything from representative democracy to anarchism. +={anarchism;communities;Multi-User Dungeons (MUDS)} + +During this period (roughly 1987 to 1993), the Free Software Foundation attained a mythic cult status—primarily among UNIX and EMACS users. Part of this status was due to the superiority of the tools Stallman and his collaborators had already created: the GNU C Compiler (gcc), GNU EMACS, the GNU Debugger (gdb), GNU Bison, and loads of smaller utilities that replaced the original AT&T UNIX versions. The GNU GPL had also acquired a life of its own by this time, having reached maturity as a license and become the de facto choice for those committed to Free Software and the Free Software Foundation. By 1991, however, the rumors of the imminent appearance of Stallman’s replacement UNIX operating system had started to sound empty—it had been six years since his public announcement of his intention. Most hackers were skeptical of Stallman’s operating-system project, even if they acknowledged the success of all the other tools necessary to create a full-fledged operating system, and Stallman himself was stymied by the development ,{[pg 215]}, of one particular component: the kernel itself, called GNU Hurd. +={EMACS (text editor);Free Software Foundation:cult status of+9;General Public License (GPL);GNU C Compiler (gcc);GNU Hurd (kernel)} + +% cult status of + +Linus Torvalds’s project was not initially imagined as a contribution to the Free Software Foundation: it was a Helsinki university student’s late-night project in learning the ins and outs of the relatively new Intel 386/486 microprocessor. Torvalds, along with tens of thousands of other computer-science students, was being schooled in UNIX through the pedagogy of Andrew Tanenbaum’s Minix, Douglas Comer’s Xinu-PC, and a handful of other such teaching versions designed to run on IBM PCs. Along with the classroom pedagogy in the 1980s came the inevitable connection to, lurking on, and posting to the Usenet and Arpanet mailing lists devoted to technical (and nontechnical) topics of all sorts.~{ The yearly influx of students to the Usenet and Arpanet in September earned that month the title "the longest month," due to the need to train new users in use and etiquette on the newsgroups. Later in the 1990s, when AOL allowed subscribers access to the Usenet hierarchy, it became known as "eternal September." See "September that Never Ended," Jargon File, http://catb.org/~esr/jargon/html/S/September-that-never-ended.html. }~ Torvalds was subscribed, naturally, to comp.os.minix, the newsgroup for users of Minix. +={Arpanet (network);Linux (Free Software project):origins in Minix+19;Minix (operating systems)+19;pedagogy:operating systems and+1;Tanenbaum, Andrew:Minix and} + +The fact of Linus Torvalds’s pedagogical embedding in the world of UNIX, Minix, the Free Software Foundation, and the Usenet should not be underestimated, as it often is in hagiographical accounts of the Linux operating system. Without this relatively robust moral-technical order or infrastructure within which it was possible to be at the right place at the right time, Torvalds’s late-night dorm-room project would have amounted to little more than that—but the pieces were all in place for his modest goals to be transformed into something much more significant. +={infrastructure;moral and technical order} + +Consider his announcement on 25 August 1991: + +_1 Hello everybody out there using minix—I’m doing a (free) operating system (just a hobby, won’t be big and professional like gnu) for 386(486) AT clones. This has been brewing since april, and is starting to get ready. I’d like any feedback on things people like/dislike in minix, as my OS resembles it somewhat (same physical layout of the file-system (due to practical reasons) among other things). I’ve currently ported bash(1.08) and gcc(1.40), and things seem to work. This implies that I’ll get something practical within a few months, and I’d like to know what features most people would want. Any suggestions are welcome, but I won’t promise I’ll implement them :-) + +_1 Linus . . . + +_1 PS. Yes—it’s free of any minix code, and it has a multi-threaded fs. It is NOT portable (uses 386 task switching etc), and it probably never will support anything other than AT-harddisks, as that’s all I have :-(.~{ Message-ID: { 1991aug25.205708.9541@klaava.helsinki.fi }http://groups.google.com/groups?selm=1991aug25.205708.9541@klaava.helsinki.fi. }~ + +% ,{[pg 216]}, + +Torvalds’s announcement is telling as to where his project fit into the existing context: "just a hobby," not "big and professional like gnu" (a comment that suggests the stature that Stallman and the Free Software Foundation had achieved, especially since they were in reality anything but "big and professional"). The announcement was posted to the Minix list and thus was essentially directed at Minix users; but Torvalds also makes a point of insisting that the system would be free of cost, and his postscript furthermore indicates that it would be free of Minix code, just as Minix had been free of AT&T code. +={AT&T;coordination (component of Free Software):of Linux vs. Minix+12} + +Torvalds also mentions that he has ported "bash" and "gcc," software created and distributed by the Free Software Foundation and tools essential for interacting with the computer and compiling new versions of the kernel. Torvalds’s decision to use these utilities, rather than write his own, reflects both the boundaries of his project (an operating-system kernel) and his satisfaction with the availability and reusability of software licensed under the GPL. +={GNU C Compiler (gcc);modifiability+2} + +So the system is based on Minix, just as Minix had been based on UNIX—piggy-backed or bootstrapped, rather than rewritten in an entirely different fashion, that is, rather than becoming a different kind of operating system. And yet there are clearly concerns about the need to create something that is not Minix, rather than simply extending or "debugging" Minix. This concern is key to understanding what happened to Linux in 1991. +={debugging+5} + +Tanenbaum’s Minix, since its inception in 1984, was always intended to allow students to see and change the source code of Minix in order to learn how an operating system worked, but it was not Free Software. It was copyrighted and owned by Prentice Hall, which distributed the textbooks. Tanenbaum made the case—similar to Gosling’s case for Unipress—that Prentice Hall was distributing the system far wider than if it were available only on the Internet: "A point which I don’t think everyone appreciates is that making something available by FTP is not necessarily the way to provide the widest distribution. The Internet is still a highly elite group. Most computer users are NOT on it. . . . MINIX is also widely used in Eastern Europe, Japan, Israel, South America, etc. Most of these people would never have gotten it if there hadn’t been a company selling it."~{ Message-ID: { 12595@star.cs.vu.nl }http://groups.google.com/groups?selm=12595@star.cs.vu.nl. }~ +={Tanenbaum, Andrew:Minix and+9;File Transfer Protocol (ftp);Prentice Hall+1;textbooks:on operating systems and networks+1} + +% larger index range provided for tanenbaum + +By all accounts, Prentice Hall was not restrictive in its sublicensing of the operating system, if people wanted to create an "enhanced" ,{[pg 217]}, version of Minix. Similarly, Tanenbaum’s frequent presence on comp.os.minix testified to his commitment to sharing his knowledge about the system with anyone who wanted it—not just paying customers. Nonetheless, Torvalds’s pointed use of the word free and his decision not to reuse any of the code is a clear indication of his desire to build a system completely unencumbered by restrictions, based perhaps on a kind of intuitive folkloric sense of the dangers associated with cases like that of EMACS.~{ Indeed, initially, Torvalds’s terms of distribution for Linux were more restrictive than the GPL, including limitations on distributing it for a fee or for handling costs. Torvalds eventually loosened the restrictions and switched to the GPL in February 1992. Torvalds’s release notes for Linux 0.12 say, "The Linux copyright will change: I’ve had a couple of requests ,{[pg 339]}, to make it compatible with the GNU copyleft, removing the ‘you may not distribute it for money’ condition. I agree. I propose that the copyright be changed so that it conforms to GNU—pending approval of the persons who have helped write code. I assume this is going to be no problem for anybody: If you have grievances (‘I wrote that code assuming the copyright would stay the same’) mail me. Otherwise The GNU copyleft takes effect as of the first of February. If you do not know the gist of the GNU copyright—read it" (http://www.kernel.org/pub/linux/kernel/Historic/old-versions/RELNOTES-0.12). }~ +={comp.os.minix} + +The most significant aspect of Torvalds’s initial message, however, is his request: "I’d like to know what features most people would want. Any suggestions are welcome, but I won’t promise I’ll implement them." Torvalds’s announcement and the subsequent interest it generated clearly reveal the issues of coordination and organization that would come to be a feature of Linux. The reason Torvalds had so many eager contributors to Linux, from the very start, was because he enthusiastically took them off of Tanenbaum’s hands. + +2~ Design and Adaptability +={adaptability:planning vs.+18} + +Tanenbaum’s role in the story of Linux is usually that of the straw man—a crotchety old computer-science professor who opposes the revolutionary young Torvalds. Tanenbaum did have a certain revolutionary reputation himself, since Minix was used in classrooms around the world and could be installed on IBM PCs (something no other commercial UNIX vendors had achieved), but he was also a natural target for people like Torvalds: the tenured professor espousing the textbook version of an operating system. So, despite the fact that a very large number of people were using or knew of Minix as a UNIX operating system (estimates of comp.os.minix subscribers were at 40,000), Tanenbaum was emphatically not interested in collaboration or collaborative debugging, especially if debugging also meant creating extensions and adding features that would make the system bigger and harder to use as a stripped-down tool for teaching. For Tanenbaum, this point was central: "I’ve been repeatedly offered virtual memory, paging, symbolic links, window systems, and all manner of features. I have usually declined because I am still trying to keep the system simple enough for students to understand. You can put all this stuff in your version, but I won’t ,{[pg 218]}, put it in mine. I think it is this point which irks the people who say ‘MINIX is not free,’ not the $60."~{ Message-ID: { 12667@star.cs.vu.nl }http://groups.google.com/groups?selm=12667@star.cs.vu.nl. }~ +={pedagogy:Minix and+3;comp.os.minix} + +So while Tanenbaum was in sympathy with the Free Software Foundation’s goals (insofar as he clearly wanted people to be able to use, update, enhance, and learn from software), he was not in sympathy with the idea of having 40,000 strangers make his software "better." Or, to put it differently, the goals of Minix remained those of a researcher and a textbook author: to be useful in classrooms and cheap enough to be widely available and usable on the largest number of cheap computers. +={Minix (operating system):goals of+4;Free Software Foundation+1} + +By contrast, Torvalds’s "fun" project had no goals. Being a cocky nineteen-year-old student with little better to do (no textbooks to write, no students, grants, research projects, or committee meetings), Torvalds was keen to accept all the ready-made help he could find to make his project better. And with 40,000 Minix users, he had a more or less instant set of contributors. Stallman’s audience for EMACS in the early 1980s, by contrast, was limited to about a hundred distinct computers, which may have translated into thousands, but certainly not tens of thousands of users. Tanenbaum’s work in creating a generation of students who not only understood the internals of an operating system but, more specifically, understood the internals of the UNIX operating system created a huge pool of competent and eager UNIX hackers. It was the work of porting UNIX not only to various machines but to a generation of minds as well that set the stage for this event—and this is an essential, though often overlooked component of the success of Linux. +={EMACS (text editor):number of users;Stallman,Richard;fun, and development of Linux+1} + +Many accounts of the Linux story focus on the fight between Torvalds and Tanenbaum, a fight carried out on comp.os.minix with the subject line "Linux is obsolete."~{ Message-ID: { 12595@star.cs.vu.nl }http://groups.google.com/groups?selm=12595@star.cs.vu.nl. Key parts of the controversy were reprinted in Dibona et al. Open Sources. }~ Tanenbaum argued that Torvalds was reinventing the wheel, writing an operating system that, as far as the state of the art was concerned, was now obsolete. Torvalds, by contrast, asserted that it was better to make something quick and dirty that worked, invite contributions, and worry about making it state of the art later. Far from illustrating some kind of outmoded conservatism on Tanenbaum’s part, the debate highlights the distinction between forms of coordination and the meanings of collaboration. For Tanenbaum, the goals of Minix were either pedagogical or academic: to teach operating-system essentials or to explore new possibilities in operating-system design. By this model, Linux could do neither; it couldn’t be used in the classroom because ,{[pg 219]}, it would quickly become too complex and feature-laden to teach, and it wasn’t pushing the boundaries of research because it was an out-of-date operating system. Torvalds, by contrast, had no goals. What drove his progress was a commitment to fun and to a largely inarticulate notion of what interested him and others, defined at the outset almost entirely against Minix and other free operating systems, like FreeBSD. In this sense, it could only emerge out of the context—which set the constraints on its design—of UNIX, open systems, Minix, GNU, and BSD. +={comp.os.minix:"Linux is obsolete" debate on;Berkeley Systems Distribution (BSD) (version of UNIX):FreeBSD;FreeBSD} + +Both Tanenbaum and Torvalds operated under a model of coordination in which one person was ultimately responsible for the entire project: Tanenbaum oversaw Minix and ensured that it remained true to its goals of serving a pedagogical audience; Torvalds would oversee Linux, but he would incorporate as many different features as users wanted or could contribute. Very quickly—with a pool of 40,000 potential contributors—Torvalds would be in the same position Tanenbaum was in, that is, forced to make decisions about the goals of Linux and about which enhancements would go into it and which would not. What makes the story of Linux so interesting to observers is that it appears that Torvalds made no decision: he accepted almost everything. + +Tanenbaum’s goals and plans for Minix were clear and autocratically formed. Control, hierarchy, and restriction are after all appropriate in the classroom. But Torvalds wanted to do more. He wanted to go on learning and to try out alternatives, and with Minix as the only widely available way to do so, his decision to part ways starts to make sense; clearly he was not alone in his desire to explore and extend what he had learned. Nonetheless, Torvalds faced the problem of coordinating a new project and making similar decisions about its direction. On this point, Linux has been the subject of much reflection by both insiders and outsiders. Despite images of Linux as either an anarchic bazaar or an autocratic dictatorship, the reality is more subtle: it includes a hierarchy of contributors, maintainers, and "trusted lieutenants" and a sophisticated, informal, and intuitive sense of "good taste" gained through reading and incorporating the work of co-developers. +={coordination (component of Free Software):individual virtuosity vs. hierarchical planning+10;hierarchy, in coordination+10} + +While it was possible for Torvalds to remain in charge as an individual for the first few years of Linux (1991-95, roughly), he eventually began to delegate some of that control to people who would make decisions about different subcomponents of the kernel. ,{[pg 220]}, It was thus possible to incorporate more of the "patches" (pieces of code) contributed by volunteers, by distributing some of the work of evaluating them to people other than Torvalds. This informal hierarchy slowly developed into a formal one, as Steven Weber points out: "The final de facto ‘grant’ of authority came when Torvalds began publicly to reroute relevant submissions to the lieutenants. In 1996 the decision structure became more formal with an explicit differentiation between ‘credited developers’ and ‘maintainers.’ . . . If this sounds very much like a hierarchical decision structure, that is because it is one—albeit one in which participation is strictly voluntary."~{ Steven Weber, The Success of Open Source, 164. }~ +={patches (software)+3;Weber, Steven;Linux (Free Software project):process of decision making+4} + +Almost all of the decisions made by Torvalds and lieutenants were of a single kind: whether or not to incorporate a piece of code submitted by a volunteer. Each such decision was technically complex: insert the code, recompile the kernel, test to see if it works or if it produces any bugs, decide whether it is worth keeping, issue a new version with a log of the changes that were made. Although the various official leaders were given the authority to make such changes, coordination was still technically informal. Since they were all working on the same complex technical object, one person (Torvalds) ultimately needed to verify a final version, containing all the subparts, in order to make sure that it worked without breaking. + +Such decisions had very little to do with any kind of design goals or plans, only with whether the submitted patch "worked," a term that reflects at once technical, aesthetic, legal, and design criteria that are not explicitly recorded anywhere in the project—hence, the privileging of adaptability over planning. At no point were the patches assigned or solicited, although Torvalds is justly famous for encouraging people to work on particular problems, but only if they wanted to. As a result, the system morphed in subtle, unexpected ways, diverging from its original, supposedly backwards "monolithic" design and into a novel configuration that reflected the interests of the volunteers and the implicit criteria of the leaders. +={design;Linux (Free Software project):planning vs. adaptability in+9} + +By 1995-96, Torvalds and lieutenants faced considerable challenges with regard to hierarchy and decision-making, as the project had grown in size and complexity. The first widely remembered response to the ongoing crisis of benevolent dictatorship in Linux was the creation of "loadable kernel modules," conceived as a way to release some of the constant pressure to decide which patches would be incorporated into the kernel. The decision to modularize ,{[pg 221]}, Linux was simultaneously technical and social: the software-code base would be rewritten to allow for external loadable modules to be inserted "on the fly," rather than all being compiled into one large binary chunk; at the same time, it meant that the responsibility to ensure that the modules worked devolved from Torvalds to the creator of the module. The decision repudiated Torvalds’s early opposition to Tanenbaum in the "monolithic vs. microkernel" debate by inviting contributors to separate core from peripheral functions of an operating system (though the Linux kernel remains monolithic compared to classic microkernels). It also allowed for a significant proliferation of new ideas and related projects. It both contracted and distributed the hierarchy; now Linus was in charge of a tighter project, but more people could work with him according to structured technical and social rules of responsibility. +={modifiability:modularity in software+1} + +Creating loadable modules changed the look of Linux, but not because of any planning or design decisions set out in advance. The choice is an example of the privileged adaptability of the Linux, resolving the tension between the curiosity and virtuosity of individual contributors to the project and the need for hierarchical control in order to manage complexity. The commitment to adaptability dissolves the distinction between the technical means of coordination and the social means of management. It is about producing a meaningful whole by which both people and code can be coordinated—an achievement vigorously defended by kernel hackers. +={design:evolution, and+7} + +The adaptable organization and structure of Linux is often described in evolutionary terms, as something without teleological purpose, but responding to an environment. Indeed, Torvalds himself has a weakness for this kind of explanation. + +_1 Let’s just be honest, and admit that it [Linux] wasn’t designed. + +_1 Sure, there’s design too—the design of UNIX made a scaffolding for the system, and more importantly it made it easier for people to communicate because people had a mental model for what the system was like, which means that it’s much easier to discuss changes. + +_1 But that’s like saying that you know that you’re going to build a car with four wheels and headlights—it’s true, but the real bitch is in the details. + +_1 And I know better than most that what I envisioned 10 years ago has nothing in common with what Linux is today. There was certainly no premeditated design there.~{ Quoted in Zack Brown, "Kernel Traffic #146 for 17Dec2001," Kernel Traffic, http://www.kerneltraffic.org/kernel-traffic/kt20011217_146.html; also quoted in Federico Iannacci, "The Linux Managing Model," http://opensource.mit.edu/papers/iannacci2.pdf. }~ + +% ,{[pg 222]}, + +Adaptability does not answer the questions of intelligent design. Why, for example, does a car have four wheels and two headlights? Often these discussions are polarized: either technical objects are designed, or they are the result of random mutations. What this opposition overlooks is the fact that design and the coordination of collaboration go hand in hand; one reveals the limits and possibilities of the other. Linux represents a particular example of such a problematic—one that has become the paradigmatic case of Free Software—but there have been many others, including UNIX, for which the engineers created a system that reflected the distributed collaboration of users around the world even as the lawyers tried to make it conform to legal rules about licensing and practical concerns about bookkeeping and support. + +Because it privileges adaptability over planning, Linux is a recursive public: operating systems and social systems. It privileges openness to new directions, at every level. It privileges the right to propose changes by actually creating them and trying to convince others to use and incorporate them. It privileges the right to fork the software into new and different kinds of systems. Given what it privileges, Linux ends up evolving differently than do systems whose life and design are constrained by corporate organization, or by strict engineering design principles, or by legal or marketing definitions of products—in short, by clear goals. What makes this distinction between the goal-oriented design principle and the principle of adaptability important is its relationship to politics. Goals and planning are the subject of negotiation and consensus, or of autocratic decision-making; adaptability is the province of critique. It should be remembered that Linux is by no means an attempt to create something radically new; it is a rewrite of a UNIX operating system, as Torvalds points out, but one that through adaptation can end up becoming something new. +={critique, Free Software as;ontology:of linux;recursive public} + +2~ Patch and Vote +={Apache (Free Software project)+28;patches (software):voting in software development and+28;software development:patch and vote method+28} + +The Apache Web server and the Apache Group (now called the Apache Software Foundation) provide a second illuminating example of the how and why of coordination in Free Software of the 1990s. As with the case of Linux, the development of the Apache project illustrates how adaptability is privileged over planning ,{[pg 223]}, and, in particular, how this privileging is intended to resolve the tensions between individual curiosity and virtuosity and collective control and decision-making. It is also the story of the progressive evolution of coordination, the simultaneously technical and social mechanisms of coordinating people and code, patches and votes. +={coordination (component of Free Software):individual virtuosity vs. hierarchical planning+3} + +The Apache project emerged out of a group of users of the original httpd (HyperText Transmission Protocol Daemon) Web server created by Rob McCool at NCSA, based on the work of Tim Berners-Lee’s World Wide Web project at CERN. Berners-Lee had written a specification for the World Wide Web that included the mark-up language HTML, the transmission protocol http, and a set of libraries that implemented the code known as libwww, which he had dedicated to the public domain.~{ Message-ID: { 673c43e160C1a758@sluvca.slu.edu }http://groups.google.com/groups?selm=673c43e160C1a758@sluvca.slu.edu. See also, Berners-Lee, Weaving the Web. }~ +={Berners-Lee, Tim;httpd+22;Hypertext Transfer Mark-up Language (HTML);Hypertext Transfer Protocol (http);McCool, Rob+3;World Wide Web (www)+2} + +The NCSA, at the University of Illinois, Urbana-Champaign, picked up both www projects, subsequently creating both the first widely used browser, Mosaic, directed by Marc Andreessen, and httpd. Httpd was public domain up until version 1.3. Development slowed when McCool was lured to Netscape, along with the team that created Mosaic. By early 1994, when the World Wide Web had started to spread, many individuals and groups ran Web servers that used httpd; some of them had created extensions and fixed bugs. They ranged from university researchers to corporations like Wired Ventures, which launched the online version of its magazine (HotWired.com) in 1994. Most users communicated primarily through Usenet, on the comp.infosystems.www.* newsgroups, sharing experiences, instructions, and updates in the same manner as other software projects stretching back to the beginning of the Usenet and Arpanet newsgroups. +={Andreessen, Marc;Arpanet (network);Mosaic (web browser);National Center for Super Computing Applications (NCSA)+2;Rumor on Usenet;Usenet:rumor on;User groups;Wired (magazine):HotWired (online version of Wired)+1} + +When NCSA failed to respond to most of the fixes and extensions being proposed, a group of several of the most active users of httpd began to communicate via a mailing list called new-httpd in 1995. The list was maintained by Brian Behlendorf, the webmaster for HotWired, on a server he maintained called hyperreal; its participants were those who had debugged httpd, created extensions, or added functionality. The list was the primary means of association and communication for a diverse group of people from various locations around the world. During the next year, participants hashed out issues related to coordination, to the identity of and the processes involved in patching the "new" httpd, version 1.3.~{ The original Apache Group included Brian Behlendorf, Roy T. Fielding, Rob Harthill, David Robinson, Cliff Skolnick, Randy Terbush, Robert S. Thau, Andrew Wilson, Eric Hagberg, Frank Peters, and Nicolas Pioch. The mailing list new-httpd eventually became the Apache developers list. The archives are available at http://mail-archives.apache.org/mod_mbox/httpd-dev/ and cited hereafter as "Apache developer mailing list," followed by sender, subject, date, and time. }~ ,{[pg 224]}, +={Behlendorf, Brian:as head of Apache+24;new httpd (mailing list)+24} + +Patching a piece of software is a peculiar activity, akin to debugging, but more like a form of ex post facto design. Patching covers the spectrum of changes that can be made: from fixing security holes and bugs that prevent the software from compiling to feature and performance enhancements. A great number of the patches that initially drew this group together grew out of needs that each individual member had in making a Web server function. These patches were not due to any design or planning decisions by NCSA, McCool, or the assembled group, but most were useful enough that everyone gained from using them, because they fixed problems that everyone would or could encounter. As a result, the need for a coordinated new-httpd release was key to the group’s work. This new version of NCSA httpd had no name initially, but apache was a persistent candidate; the somewhat apocryphal origin of the name is that it was "a patchy webserver."~{ For another version of the story, see Moody, Rebel Code, 127-28. The official story honors the Apache Indian tribes for "superior skills in warfare strategy and inexhaustible endurance." Evidence of the concern of the original members over the use of the name is clearly visible in the archives of the Apache project. See esp. Apache developer mailing list, Robert S. Thau, Subject: The political correctness question . . . , 22 April 1995, 21:06 EDT. }~ +={bugs;debugging:patching vs.;patches (software):debugging vs.;coordination (component of Free Software)+50;software development:Apache project+17} + +At the outset, in February and March 1995, the pace of work of the various members of new-httpd differed a great deal, but was in general extremely rapid. Even before there was an official release of a new httpd, process issues started to confront the group, as Roy Fielding later explained: "Apache began with a conscious attempt to solve the process issues first, before development even started, because it was clear from the very beginning that a geographically distributed set of volunteers, without any traditional organizational ties, would require a unique development process in order to make decisions."~{ Mockus, Fielding, and Herbsleb, "Two Case Studies of Open Source Software Development," 3. }~ + +The need for process arose more or less organically, as the group developed mechanisms for managing the various patches: assigning them IDs, testing them, and incorporating them "by hand" into the main source-code base. As this happened, members of the list would occasionally find themselves lost, confused by the process or the efficiency of other members, as in this message from Andrew Wilson concerning Cliff Skolnick’s management of the list of bugs: +={Wilson, Andrew+2;Skolnick, Cliff} + +_1 Cliff, can you concentrate on getting an uptodate copy of the bug/improvement list please. I’ve already lost track of just what the heck is meant to be going on. Also what’s the status of this pre-pre-pre release Apache stuff. It’s either a pre or it isn’t surely? AND is the pre-pre-etc thing the same as the thing Cliff is meant to be working on? + +_1 Just what the fsck is going on anyway? Ay, ay ay! Andrew Wilson.~{ Apache developer mailing list, Andrew Wilson, Subject: Re: httpd patch B5 updated, 14 March 1995, 21:49 GMT. }~ ,{[pg 225]}, + +To which Rob Harthill replied, "It is getting messy. I still think we should all implement one patch at a time together. At the rate (and hours) some are working we can probably manage a couple of patches a day. . . . If this is acceptable to the rest of the group, I think we should order the patches, and start a systematic processes of discussion, implementations and testing."~{ Apache developer mailing list, Rob Harthill, Subject: Re: httpd patch B5 updated, 14 March 1995, 15:10 MST. }~ +={Harthill, Rob+12} + +Some members found the pace of work exciting, while others appealed for slowing or stopping in order to take stock. Cliff Skolnick created a system for managing the patches and proposed that list-members vote in order to determine which patches be included.~{ Apache developer mailing list, Cliff Skolnick, Subject: Process (please read), 15 March 1995, 3:11 PST; and Subject: Patch file format, 15 March 1995, 3:40 PST. }~ Rob Harthill voted first. +={Skolnick, Cliff} + +group{ + + Here are my votes for the current patch list shown at http://www.hyperreal.com/httpd/patchgen/list.cgi + + I’ll use a vote of + + -1 have a problem with it + + 0 haven’t tested it yet (failed to understand it or whatever) + + +1 tried it, liked it, have no problem with it. + + [Here Harthill provides a list of votes on each patch.] + + If this voting scheme makes sense, lets use it to filter out the stuff we’re happy with. A "-1" vote should veto any patch. There seems to be about 6 or 7 of us actively commenting on patches, so I’d suggest that once a patch gets a vote of +4 (with no vetos), we can add it to an alpha.~{ Apache developer mailing list, Rob Harthill, Subject: patch list vote, 15 March 1995, 13:21:24 MST. }~ + +}group + +Harthill’s votes immediately instigated discussion about various patches, further voting, and discussion about the process (i.e., how many votes or vetoes were needed), all mixed together in a flurry of e-mail messages. The voting process was far from perfect, but it did allow some consensus on what "apache" would be, that is, which patches would be incorporated into an "official" (though not very public) release: Apache 0.2 on 18 March.~{ Apache developer mailing list, Rob Harthill, Subject: apache-0.2 on hyperreal, 18 March 1995, 18:46 MST. }~ Without a voting system, the group of contributors could have gone on applying patches individually, each in his own context, fixing the problems that ailed each user, but ignoring those that were irrelevant or unnecessary in that context. With a voting process, however, a convergence on a tested and approved new-httpd could emerge. As the process was refined, members sought a volunteer to take votes, to open and close the voting once a week, and to build a new version of Apache when the voting was done. (Andrew Wilson was the first volunteer, to which Cliff Skolnick replied, "I guess the first vote is ,{[pg 226]}, voting Andrew as the vote taker :-).")~{ Apache developer mailing list, Cliff Skolnick, Subject: Re: patch list vote, 21 March 1995, 2:47 PST. }~ The patch-and-vote process that emerged in the early stages of Apache was not entirely novel; many contributors noted that the FreeBSD project used a similar process, and some suggested the need for a "patch coordinator" and others worried that "using patches gets very ugly, very quickly."~{ Apache developer mailing list, Paul Richards, Subject: Re: vote counting, 21 March 1995, 22:24 GMT. }~ +={Wilson, Andrew;Skolnick, Cliff;Berkeley Systems Distribution (BSD) (version of UNIX):FreeBSD;FreeBSD} + +The significance of the patch-and-vote system was that it clearly represented the tension between the virtuosity of individual developers and a group process aimed at creating and maintaining a common piece of software. It was a way of balancing the ability of each separate individual’s expertise against a common desire to ship and promote a stable, bug-free, public-domain Web server. As Roy Fielding and others would describe it in hindsight, this tension was part of Apache’s advantage. + +_1 Although the Apache Group makes decisions as a whole, all of the actual work of the project is done by individuals. The group does not write code, design solutions, document products, or provide support to our customers; individual people do that. The group provides an environment for collaboration and an excellent trial-by-fire for ideas and code, but the creative energy needed to solve a particular problem, redesign a piece of the system, or fix a given bug is almost always contributed by individual volunteers working on their own, for their own purposes, and not at the behest of the group. Competitors mistakenly assume Apache will be unable to take on new or unusual tasks because of the perception that we act as a group rather than follow a single leader. What they fail to see is that, by remaining open to new contributors, the group has an unlimited supply of innovative ideas, and it is the individuals who chose to pursue their own ideas who are the real driving force for innovation.~{ Roy T. Fielding, "Shared Leadership in the Apache Project." }~ +={Apache (Free Software project):individual vs. group innovation+1} + +Although openness is widely touted as the key to the innovations of Apache, the claim is somewhat disingenuous: patches are just that, patches. Any large-scale changes to the code could not be accomplished by applying patches, especially if each patch must be subjected to a relatively harsh vote to be included. The only way to make sweeping changes—especially changes that require iteration and testing to get right—is to engage in separate "branches" of a project or to differentiate between internal and external releases—in short, to fork the project temporarily in hopes that it would soon rejoin its stable parent. Apache encountered this problem very early on with the "Shambhala" rewrite of httpd by Robert Thau. ,{[pg 227]}, +={Shambhala+6;Thau, Robert+6;differentiation of software:in Apache+6|see also forking and sharing source code+6;forking:in Apache+6} + +Shambhala was never quite official: Thau called it his "noodling" server, or a "garage" project. It started as his attempt to rewrite httpd as a server which could handle and process multiple requests at the same time. As an experiment, it was entirely his own project, which he occasionally referred to on the new-httpd list: "Still hacking Shambhala, and laying low until it works well enough to talk about."~{ Apache developer mailing list, Robert S. Thau, Subject: Re: 0.7.2b, 7 June 1995, 17:27 EDT. }~ By mid-June of 1995, he had a working version that he announced, quite modestly, to the list as "a garage project to explore some possible new directions I thought *might* be useful for the group to pursue."~{ Apache developer mailing list, Robert S. Thau, Subject: My Garage Project, 12 June 1995, 21:14 GMT. }~ Another list member, Randy Terbush, tried it out and gave it rave reviews, and by the end of June there were two users exclaiming its virtues. But since it hadn’t ever really been officially identified as a fork, or an alternate development pathway, this led Rob Harthill to ask: "So what’s the situation regarding Shambhala and Apache, are those of you who have switched to it giving up on Apache and this project? If so, do you need a separate list to discuss Shambhala?"~{ Apache developer mailing list, Rob Harthill, Subject: Re: Shambhala, 30 June 1995, 9:44 MDT. }~ +={Terbush, Randy} + +Harthill had assumed that the NCSA code-base was "tried and tested" and that Shambhala represented a split, a fork: "The question is, should we all go in one direction, continue as things stand or Shambahla [sic] goes off on its own?"~{ Apache developer mailing list, Rob Harthill, Subject: Re: Shambhala, 30 June 1995, 14:50 MDT. }~ His query drew out the miscommunication in detail: that Thau had planned it as a "drop-in" replacement for the NCSA httpd, and that his intentions were to make it the core of the Apache server, if he could get it to work. Harthill, who had spent no small amount of time working hard at patching the existing server code, was not pleased, and made the core issues explicit. +={coordination (component of Free Software):individual virtuosity vs. hierarchical planning+4} + +_1 Maybe it was rst’s [Robert Thau’s] choice of phrases, such as "garage project" and it having a different name, maybe I didn’t read his mailings thoroughly enough, maybe they weren’t explicit enough, whatever. . . . It’s a shame that nobody using Shambhala (who must have realized what was going on) didn’t raise these issues weeks ago. I can only presume that rst was too modest to push Shambhala, or at least discussion of it, onto us more vigourously. I remember saying words to the effect of "this is what I plan to do, stop me if you think this isn’t a good idea." Why the hell didn’t anyone say something? . . . [D]id others get the same impression about rst’s work as I did? Come on people, if you want to be part of this group, collaborate!~{ Apache developer mailing list, Rob Harthill, Subject: Re: Shambhala, 30 June 1995, 16:48 GMT. }~ ,{[pg 228]}, +={collaboration:different meanings of+2} + +Harthill’s injunction to collaborate seems surprising in the context of a mailing list and project created to facilitate collaboration, but the injunction is specific: collaborate by making plans and sharing goals. Implicit in his words is the tension between a project with clear plans and goals, an overarching design to which everyone contributes, as opposed to a group platform without clear goals that provides individuals with a setting to try out alternatives. Implicit in his words is the spectrum between debugging an existing piece of software with a stable identity and rewriting the fundamental aspects of it to make it something new. The meaning of collaboration bifurcates here: on the one hand, the privileging of the autonomous work of individuals which is submitted to a group peer review and then incorporated; on the other, the privileging of a set of shared goals to which the actions and labor of individuals is subordinated.~{ Gabriella Coleman captures this nicely in her discussion of the tension between the individual virtuosity of the hacker and the corporate populism of groups like Apache or, in her example, the Debian distribution of Linux. See Coleman, The Social Construction of Freedom. }~ +={debugging:patching vs.+2;goals, lack of in Free Software+2} + +Indeed, the very design of Shambhala reflects the former approach of privileging individual work: like UNIX and EMACS before it, Shambhala was designed as a modular system, one that could "make some of that process [the patch-and-vote process] obsolete, by allowing stuff which is not universally applicable (e.g., database back-ends), controversial, or just half-baked, to be shipped anyway as optional modules."~{ Apache developer mailing list, Robert S. Thau, Subject: Re: Shambhala, 1 July 1995, 14:42 EDT. }~ Such a design separates the core platform from the individual experiments that are conducted on it, rather than creating a design that is modular in the hierarchical sense of each contributor working on an assigned section of a project. Undoubtedly, the core platform requires coordination, but extensions and modifications can happen without needing to transform the whole project.~{ A slightly different explanation of the role of modularity is discussed in Steven Weber, The Success of Open Source, 173-75. }~ Shambhala represents a certain triumph of the "shut up and show me the code" aesthetic: Thau’s "modesty" is instead a recognition that he should be quiet until it "works well enough to talk about," whereas Harthill’s response is frustration that no one has talked about what Thau was planning to do before it was even attempted. The consequence was that Harthill’s work seemed to be in vain, replaced by the work of a more virtuosic hacker’s demonstration of a superior direction. +={modifiability:modularity in software} + +In the case of Apache one can see how coordination in Free Software is not just an afterthought or a necessary feature of distributed work, but is in fact at the core of software production itself, governing the norms and forms of life that determine what will count as good software, how it will progress with respect to a context and ,{[pg 229]}, background, and how people will be expected to interact around the topic of design decisions. The privileging of adaptability brings with it a choice in the mode of collaboration: it resolves the tension between the agonistic competitive creation of software, such as Robert Thau’s creation of Shambhala, and the need for collective coordination of complexity, such as Harthill’s plea for collaboration to reduce duplicated or unnecessary work. + +2~ Check Out and Commit +={Linux (Free Software project):Source Code Management tools and+21;Source Code Management tools (SCMs)+21} + +The technical and social forms that Linux and Apache take are enabled by the tools they build and use, from bug-tracking tools and mailing lists to the Web servers and kernels themselves. One such tool plays a very special role in the emergence of these organizations: Source Code Management systems (SCMs). SCMs are tools for coordinating people and code; they allow multiple people in dispersed locales to work simultaneously on the same object, the same source code, without the need for a central coordinating overseer and without the risk of stepping on each other’s toes. The history of SCMs—especially in the case of Linux—also illustrates the recursive-depth problem: namely, is Free Software still free if it is created with non-free tools? +={Source Code Management tools (SCMs):definition of+1;recursive public:layers of} + +SCM tools, like the Concurrent Versioning System (cvs) and Subversion, have become extremely common tools for Free Software programmers; indeed, it is rare to find a project, even a project conducted by only one individual, which does not make use of these tools. Their basic function is to allow two or more programmers to work on the same files at the same time and to provide feedback on where their edits conflict. When the number of programmers grows large, an SCM can become a tool for managing complexity. It keeps track of who has "checked out" files; it enables users to lock files if they want to ensure that no one else makes changes at the same time; it can keep track of and display the conflicting changes made by two users to the same file; it can be used to create "internal" forks or "branches" that may be incompatible with each other, but still allows programmers to try out new things and, if all goes well, merge the branches into the trunk later on. In sophisticated forms it can be used to "animate" successive changes to a piece of code, in order to visualize its evolution. ,{[pg 230]}, +={Concurrent Versioning System (cvs);Source Code Management tools (SCMs):see also Concurrent Versioning System (cvs)} + +Beyond mere coordination functions, SCMs are also used as a form of distribution; generally SCMs allow anyone to check out the code, but restrict those who can check in or "commit" the code. The result is that users can get instant access to the most up-to-date version of a piece of software, and programmers can differentiate between stable releases, which have few bugs, and "unstable" or experimental versions that are under construction and will need the help of users willing to test and debug the latest versions. SCM tools automate certain aspects of coordination, not only reducing the labor involved but opening up new possibilities for coordination. +={bugs;software tools+1;Source Code Management tools (SCMs):as tool for distribution+1} + +The genealogy of SCMs can be seen in the example of Ken Thompson’s creation of a diff tape, which he used to distribute changes that had been contributed to UNIX. Where Thompson saw UNIX as a spectrum of changes and the legal department at Bell Labs saw a series of versions, SCM tools combine these two approaches by minutely managing the revisions, assigning each change (each diff) a new version number, and storing the history of all of those changes so that software changes might be precisely undone in order to discover which changes cause problems. Written by Douglas McIlroy, "diff" is itself a piece of software, one of the famed small UNIX tools that do one thing well. The program diff compares two files, line by line, and prints out the differences between them in a structured format (showing a series of lines with codes that indicate changes, additions, or removals). Given two versions of a text, one could run diff to find the differences and make the appropriate changes to synchronize them, a task that is otherwise tedious and, given the exactitude of source code, prone to human error. A useful side-effect of diff (when combined with an editor like ed or EMACS) is that when someone makes a set of changes to a file and runs diff on both the original and the changed file, the output (i.e., the changes only) can be used to reconstruct the original file from the changed file. Diff thus allows for a clever, space-saving way to save all the changes ever made to a file, rather than retaining full copies of every new version, one saves only the changes. Ergo, version control. diff—and programs like it—became the basis for managing the complexity of large numbers of programmers working on the same text at the same time. +={McIlroy, Douglas;AT&T:Bell Laboratories;diff (software tool):history of+2;Thompson, Ken} + +One of the first attempts to formalize version control was Walter Tichy’s Revision Control System (RCS), from 1985.~{ Tichy, "RCS." }~ RCS kept track of the changes to different files using diff and allowed programmers ,{[pg 231]}, to see all of the changes that had been made to that file. RCS, however, could not really tell the difference between the work of one programmer and another. All changes were equal, in that sense, and any questions that might arise about why a change was made could remain unanswered. +={RCS (software tool)+1:see also Source Code Management tools} + +In order to add sophistication to RCS, Dick Grune, at the Vrije Universiteit, Amsterdam, began writing scripts that used RCS as a multi-user, Internet-accessible version-control system, a system that eventually became the Concurrent Versioning System. cvs allowed multiple users to check out a copy, make changes, and then commit those changes, and it would check for and either prevent or flag conflicting changes. Ultimately, cvs became most useful when programmers could use it remotely to check out source code from anywhere on the Internet. It allowed people to work at different speeds, different times, and in different places, without needing a central person in charge of checking and comparing the changes. cvs created a form of decentralized version control for very-large-scale collaboration; developers could work offline on software, and always on the most updated version, yet still be working on the same object. +={Concurrent Versioning System (cvs):history of+1;Grune, Dick} + +Both the Apache project and the Linux kernel project use SCMs. In the case of Apache the original patch-and-vote system quickly began to strain the patience, time, and energy of participants as the number of contributors and patches began to grow. From the very beginning of the project, the contributor Paul Richards had urged the group to make use of cvs. He had extensive experience with the system in the Free-BSD project and was convinced that it provided a superior alternative to the patch-and-vote system. Few other contributors had much experience with it, however, so it wasn’t until over a year after Richards began his admonitions that cvs was eventually adopted. However, cvs is not a simple replacement for a patch-and-vote system; it necessitates a different kind of organization. Richards recognized the trade-off. The patch-and-vote system created a very high level of quality assurance and peer review of the patches that people submitted, while the cvs system allowed individuals to make more changes that might not meet the same level of quality assurance. The cvs system allowed branches—stable, testing, experimental—with different levels of quality assurance, while the patch-and-vote system was inherently directed at one final and stable version. As the case of Shambhala ,{[pg 232]}, exhibited, under the patch-and-vote system experimental versions would remain unofficial garage projects, rather than serve as official branches with people responsible for committing changes. +={Richards, Paul;Shambhala:see also Apache;Apache (Free Software project)+1;Berkeley Systems Distribution (BSD) (version of UNIX):FreeBSD;FreeBSD;Linux (Free Software project);software development:patch and vote method;Source Code Management tools (SCMs):right to "commit" change+1} + +While SCMs are in general good for managing conflicting changes, they can do so only up to a point. To allow anyone to commit a change, however, could result in a chaotic mess, just as difficult to disentangle as it would be without an SCM. In practice, therefore, most projects designate a handful of people as having the right to "commit" changes. The Apache project retained its voting scheme, for instance, but it became a way of voting for "committers" instead for patches themselves. Trusted committers—those with the mysterious "good taste," or technical intuition—became the core members of the group. + +The Linux kernel has also struggled with various issues surrounding SCMs and the management of responsibility they imply. The story of the so-called VGER tree and the creation of a new SCM called Bitkeeper is exemplary in this respect.~{ See Steven Weber, The Success of Open Source, 117-19; Moody, Rebel Code, 172-78. See also Shaikh and Cornford, "Version Management Tools." }~ By 1997, Linux developers had begun to use cvs to manage changes to the source code, though not without resistance. Torvalds was still in charge of the changes to the official stable tree, but as other "lieutenants" came on board, the complexity of the changes to the kernel grew. One such lieutenant was Dave Miller, who maintained a "mirror" of the stable Linux kernel tree, the VGER tree, on a server at Rutgers. In September 1998 a fight broke out among Linux kernel developers over two related issues: one, the fact that Torvalds was failing to incorporate (patch) contributions that had been forwarded to him by various people, including his lieutenants; and two, as a result, the VGER cvs repository was no longer in synch with the stable tree maintained by Torvalds. Two different versions of Linux threatened to emerge. +={Miller, Dave;Source Code Management tools (SCMs):see also Bitkeeper;Concurrent Versioning System (cvs):Linux and;Linux (Free Software project):VGER tree and+2;Bitkeeper (Source Code Management software)+12;Torvalds, Linus:in bitkeeper controversy+12} + +A great deal of yelling ensued, as nicely captured in Moody’s Rebel Code, culminating in the famous phrase, uttered by Larry McVoy: "Linus does not scale." The meaning of this phrase is that the ability of Linux to grow into an ever larger project with increasing complexity, one which can handle myriad uses and functions (to "scale" up), is constrained by the fact that there is only one Linus Torvalds. By all accounts, Linus was and is excellent at what he does—but there is only one Linus. The danger of this situation is the danger of a fork. A fork would mean one or more new versions would proliferate under new leadership, a situation much like ,{[pg 233]}, the spread of UNIX. Both the licenses and the SCMs are designed to facilitate this, but only as a last resort. Forking also implies dilution and confusion—competing versions of the same thing and potentially unmanageable incompatibilities. +={McVoy, Larry+11;Moody, Glyn;forking:in Linux+1} + +The fork never happened, however, but only because Linus went on vacation, returning renewed and ready to continue and to be more responsive. But the crisis had been real, and it drove developers into considering new modes of coordination. Larry McVoy offered to create a new form of SCM, one that would allow a much more flexible response to the problem that the VGER tree represented. However, his proposed solution, called Bitkeeper, would create far more controversy than the one that precipitated it. + +McVoy was well-known in geek circles before Linux. In the late stages of the open-systems era, as an employee of Sun, he had penned an important document called "The Sourceware Operating System Proposal." It was an internal Sun Microsystems document that argued for the company to make its version of UNIX freely available. It was a last-ditch effort to save the dream of open systems. It was also the first such proposition within a company to "go open source," much like the documents that would urge Netscape to Open Source its software in 1998. Despite this early commitment, McVoy chose not to create Bitkeeper as a Free Software project, but to make it quasi-proprietary, a decision that raised a very central question in ideological terms: can one, or should one, create Free Software using non-free tools? +={Free Software:nonfree tools and+9;Sun Microsystems} + +On one side of this controversy, naturally, was Richard Stallman and those sharing his vision of Free Software. On the other were pragmatists like Torvalds claiming no goals and no commitment to "ideology"—only a commitment to "fun." The tension laid bare the way in which recursive publics negotiate and modulate the core components of Free Software from within. Torvalds made a very strong and vocal statement concerning this issue, responding to Stallman’s criticisms about the use of non-free software to create Free Software: "Quite frankly, I don’t _want_ people using Linux for ideological reasons. I think ideology sucks. This world would be a much better place if people had less ideology, and a whole lot more ‘I do this because it’s FUN and because others might find it useful, not because I got religion.’"~{ Linus Torvalds, "Re: [PATCH] Remove Bitkeeper Documentation from Linux Tree," 20 April 2002, http://www.uwsg.indiana.edu/hypermail/linux/kernel/0204.2/1018.html. Quoted in Shaikh and Cornford, "Version Management Tools." }~ +={coordination (component of Free Software):modulations of+8;Fun, and development of Linux;Stallman, Richard} + +Torvalds emphasizes pragmatism in terms of coordination: the right tool for the job is the right tool for the job. In terms of licenses, ,{[pg 234]}, however, such pragmatism does not play, and Torvalds has always been strongly committed to the GPL, refusing to let non-GPL software into the kernel. This strategic pragmatism is in fact a recognition of where experimental changes might be proposed, and where practices are settled. The GPL was a stable document, sharing source code widely was a stable practice, but coordinating a project using SCMs was, during this period, still in flux, and thus Bitkeeper was a tool well worth using so long as it remained suitable to Linux development. Torvalds was experimenting with the meaning of coordination: could a non-free tool be used to create Free Software? +={General Public License (GPL):passim} + +McVoy, on the other hand, was on thin ice. He was experimenting with the meaning of Free Software licenses. He created three separate licenses for Bitkeeper in an attempt to play both sides: a commercial license for paying customers, a license for people who sell Bitkeeper, and a license for "free users." The free-user license allowed Linux developers to use the software for free—though it required them to use the latest version—and prohibited them from working on a competing project at the same time. McVoy’s attempt to have his cake and eat it, too, created enormous tension in the developer community, a tension that built from 2002, when Torvalds began using Bitkeeper in earnest, to 2005, when he announced he would stop. + +The tension came from two sources: the first was debates among developers addressing the moral question of using non-free software to create Free Software. The moral question, as ever, was also a technical one, as the second source of tension, the license restrictions, would reveal. + +The developer Andrew Trigdell, well known for his work on a project called Samba and his reverse engineering of a Microsoft networking protocol, began a project to reverse engineer Bitkeeper by looking at the metadata it produced in the course of being used for the Linux project. By doing so, he crossed a line set up by McVoy’s experimental licensing arrangement: the "free as long as you don’t copy me" license. Lawyers advised Trigdell to stay silent on the topic while Torvalds publicly berated him for "willful destruction" and a moral lapse of character in trying to reverse engineer Bitkeeper. Bruce Perens defended Trigdell and censured Torvalds for his seemingly contradictory ethics.~{ Andrew Orlowski, "‘Cool it, Linus’—Bruce Perens," Register, 15 April 2005, http://www.theregister.co.uk/2005/04/15/perens_on_torvalds/page2.html. }~ McVoy never sued Trigdell, and Bitkeeper has limped along as a commercial project, because, ,{[pg 235]}, much like the EMACS controversy of 1985, the Bitkeeper controversy of 2005 ended with Torvalds simply deciding to create his own SCM, called git. +={Perens, Bruce;Trigdell, Andrew;reverse engineering;EMACS (text editor):controversy about} + +The story of the VGER tree and Bitkeeper illustrate common tensions within recursive publics, specifically, the depth of the meaning of free. On the one hand, there is Linux itself, an exemplary Free Software project made freely available; on the other hand, however, there is the ability to contribute to this process, a process that is potentially constrained by the use of Bitkeeper. So long as the function of Bitkeeper is completely circumscribed—that is, completely planned—there can be no problem. However, the moment one user sees a way to change or improve the process, and not just the kernel itself, then the restrictions and constraints of Bitkeeper can come into play. While it is not clear that Bitkeeper actually prevented anything, it is also clear that developers clearly recognized it as a potential drag on a generalized commitment to adaptability. Or to put it in terms of recursive publics, only one layer is properly open, that of the kernel itself; the layer beneath it, the process of its construction, is not free in the same sense. It is ironic that Torvalds—otherwise the spokesperson for antiplanning and adaptability—willingly adopted this form of constraint, but not at all surprising that it was collectively rejected. +={adaptability: as a form of critique+3;critique, Free Software as+3;recursive public:layers of+1} + +The Bitkeeper controversy can be understood as a kind of experiment, a modulation on the one hand of the kinds of acceptable licenses (by McVoy) and on the other of acceptable forms of coordination (Torvalds’s decision to use Bitkeeper). The experiment was a failure, but a productive one, as it identified one kind of non-free software that is not safe to use in Free Software development: the SCM that coordinates the people and the code they contribute. In terms of recursive publics the experiment identified the proper depth of recursion. Although it might be possible to create Free Software using some kinds of non-free tools, SCMs are not among them; both the software created and the software used to create it need to be free.~{ Similar debates have regularly appeared around the use of non-free compilers, non-free debuggers, non-free development environments, and so forth. There are, however, a large number of people who write and promote Free Software that runs on proprietary operating systems like Macintosh and Windows, as well as a distinction between tools and formats. So, ,{[pg 341]}, for instance, using Adobe Photoshop to create icons is fine so long as they are in standard open formats like PNG or JPG, and not proprietary forms such as GIF or photoshop. }~ + +The Bitkeeper controversy illustrates again that adaptability is not about radical invention, but about critique and response. Whereas controlled design and hierarchical planning represent the domain of governance—control through goal-setting and orientation of a collective or a project—adaptability privileges politics, properly speaking, the ability to critique existing design and to ,{[pg 236]}, propose alternatives without restriction. The tension between goal-setting and adaptability is also part of the dominant ideology of intellectual property. According to this ideology, IP laws promote invention of new products and ideas, but restrict the re-use or transformation of existing ones; defining where novelty begins is a core test of the law. McVoy made this tension explicit in his justifications for Bitkeeper: "Richard [Stallman] might want to consider the fact that developing new software is extremely expensive. He’s very proud of the collection of free software, but that’s a collection of re-implementations, but no profoundly new ideas or products. . . . What if the free software model simply can’t support the costs of developing new ideas?"~{ Quoted in Jeremy Andrews, "Interview: Larry McVoy," Kernel Trap, 28 May 2002, http://Kerneltrap.org/node/222. }~ +={novelty, of Free Software+1} + +Novelty, both in the case of Linux and in intellectual property law more generally, is directly related to the interplay of social and technical coordination: goal direction vs. adaptability. The ideal of adaptability promoted by Torvalds suggests a radical alternative to the dominant ideology of creation embedded in contemporary intellectual-property systems. If Linux is "new," it is new through adaptation and the coordination of large numbers of creative contributors who challenge the "design" of an operating system from the bottom up, not from the top down. By contrast, McVoy represents a moral imagination of design in which it is impossible to achieve novelty without extremely expensive investment in top-down, goal-directed, unpolitical design—and it is this activity that the intellectual-property system is designed to reward. Both are engaged, however, in an experiment; both are engaged in "figuring out" what the limits of Free Software are. +={figuring out;moral and technical order} + +2~ Coordination Is Design + +Many popular accounts of Free Software skip quickly over the details of its mechanism to suggest that it is somehow inevitable or obvious that Free Software should work—a self-organizing, emergent system that manages complexity through distributed contributions by hundreds of thousands of people. In The Success of Open Source Steven Weber points out that when people refer to Open Source as a self-organizing system, they usually mean something more like "I don’t understand how it works."~{ Steven Weber, The Success of Open Source, 132. }~ ,{[pg 237]}, +={Weber, Steven} + +Eric Raymond, for instance, suggests that Free Software is essentially the emergent, self-organizing result of "collaborative debugging": "Given enough eyeballs, all bugs are shallow."~{ Raymond, The Cathedral and the Bazaar. }~ The phrase implies that the core success of Free Software is the distributed, isolated, labor of debugging, and that design and planning happen elsewhere (when a developer "scratches an itch" or responds to a personal need). On the surface, such a distinction seems quite obvious: designing is designing, and debugging is removing bugs from software, and presto!—Free Software. At the extreme end, it is an understanding by which only individual geniuses are capable of planning and design, and if the initial conditions are properly set, then collective wisdom will fill in the details. +={Raymond, Eric Steven;adaptability:planning vs.+5;bugs+5;debugging:patching vs.+5} + +However, the actual practice and meaning of collective or collaborative debugging is incredibly elastic. Sometimes debugging means fixing an error; sometimes it means making the software do something different or new. (A common joke, often made at Microsoft’s expense, captures some of this elasticity: whenever something doesn’t seem to work right, one says, "That’s a feature, not a bug.") Some programmers see a design decision as a stupid mistake and take action to correct it, whereas others simply learn to use the software as designed. Debugging can mean something as simple as reading someone else’s code and helping them understand why it does not work; it can mean finding bugs in someone else’s software; it can mean reliably reproducing bugs; it can mean pinpointing the cause of the bug in the source code; it can mean changing the source to eliminate the bug; or it can, at the limit, mean changing or even re-creating the software to make it do something different or better.~{ Gabriella Coleman, in "The Social Construction of Freedom," provides an excellent example of a programmer’s frustration with font-lock in EMACS, something that falls in between a bug and a feature. The programmer’s frustration is directed at the stupidity of the design (and implied designers), but his solution is not a fix, but a work-around—and it illustrates how debugging does not always imply collaboration. }~ For academics, debugging can be a way to build a career: "Find bug. Write paper. Fix bug. Write paper. Repeat."~{ Dan Wallach, interview, 3 October 2003. }~ For commercial software vendors, by contrast, debugging is part of a battery of tests intended to streamline a product. +={Microsoft} + +Coordination in Free Software is about adaptability over planning. It is a way of resolving the tension between individual virtuosity in creation and the social benefit in shared labor. If all software were created, maintained, and distributed only by individuals, coordination would be superfluous, and software would indeed be part of the domain of poetry. But even the paradigmatic cases of virtuosic creation—EMACS by Richard Stallman, UNIX by Ken Thompson and Dennis Ritchie—clearly represent the need for creative forms ,{[pg 238]}, of coordination and the fundamental practice of reusing, reworking, rewriting, and imitation. UNIX was not created de novo, but was an attempt to streamline and rewrite Multics, itself a system that evolved out of Project MAC and the early mists of time-sharing and computer hacking.~{ Mitchell Waldrop’s The Dream Machine details the family history well. }~ EMACS was a reworking of the TECO editor. Both examples are useful for understanding the evolution of modes of coordination and the spectrum of design and debugging. +={Ritchie, Dennis+2;Adaptability:planning vs.+5;coordination (component of Free Software):individual virtuosity vs. hierarchical planning+1;Berkeley Systems Distribution (BSD) (version of UNIX)+1;modifiability+3;planning+2;UNIX operating system:development of+1} + +UNIX was initially ported and shared through mixed academic and commercial means, through the active participation of computer scientists who both received updates and contributed fixes back to Thompson and Ritchie. No formal system existed to manage this process. When Thompson speaks of his understanding of UNIX as a "spectrum" and not as a series of releases (V1, V2, etc.), the implication is that work on UNIX was continuous, both within Bell Labs and among its widespread users. Thompson’s use of the diff tape encapsulates the core problem of coordination: how to collect and redistribute the changes made to the system by its users. +={AT&T:Bell Laboratories+1;diff (software tool)} + +Similarly, Bill Joy’s distribution of BSD and James Gosling’s distribution of GOSMACS were both ad hoc, noncorporate experiments in "releasing early and often." These distribution schemes had a purpose (beyond satisfying demand for the software). The frequent distribution of patches, fixes, and extensions eased the pain of debugging software and satisfied users’ demands for new features and extensions (by allowing them to do both themselves). Had Thompson and Ritchie followed the conventional corporate model of software production, they would have been held responsible for thoroughly debugging and testing the software they distributed, and AT&T or Bell Labs would have been responsible for coming up with all innovations and extensions as well, based on marketing and product research. Such an approach would have sacrificed adaptability in favor of planning. But Thompson’s and Ritchie’s model was different: both the extension and the debugging of software became shared responsibilities of the users and the developers. Stallman’s creation of EMACS followed a similar pattern; since EMACS was by design extensible and intended to satisfy myriad unforeseen needs, the responsibility rested on the users to address those needs, and sharing their extensions and fixes had obvious social benefit. +={Gosling, James;Joy, Bill;GOSMACS (version of EMACS)} + +The ability to see development of software as a spectrum implies more than just continuous work on a product; it means seeing the ,{[pg 239]}, product itself as something fluid, built out of previous ideas and products and transforming, differentiating into new ones. Debugging, from this perspective, is not separate from design. Both are part of a spectrum of changes and improvements whose goals and direction are governed by the users and developers themselves, and the patterns of coordination they adopt. It is in the space between debugging and design that Free Software finds its niche. +={software development:as spectrum} + +2~ Conclusion: Experiments and Modulations +={experimentation+2} + +% experimentation index link added + +Coordination is a key component of Free Software, and is frequently identified as the central component. Free Software is the result of a complicated story of experimentation and construction, and the forms that coordination takes in Free Software are specific outcomes of this longer story. Apache and Linux are both experiments—not scientific experiments per se but collective social experiments in which there are complex technologies and legal tools, systems of coordination and governance, and moral and technical orders already present. + +Free Software is an experimental system, a practice that changes with the results of new experiments. The privileging of adaptability makes it a peculiar kind of experiment, however, one not directed by goals, plans, or hierarchical control, but more like what John Dewey suggested throughout his work: the experimental praxis of science extended to the social organization of governance in the service of improving the conditions of freedom. What gives this experimentation significance is the centrality of Free Software—and specifically of Linux and Apache—to the experimental expansion of the Internet. As an infrastructure or a milieu, the Internet is changing the conditions of social organization, changing the relationship of knowledge to power, and changing the orientation of collective life toward governance. Free Software is, arguably, the best example of an attempt to make this transformation public, to ensure that it uses the advantages of adaptability as critique to counter the power of planning as control. Free Software, as a recursive public, proceeds by proposing and providing alternatives. It is a bit like Kant’s version of enlightenment: insofar as geeks speak (or hack) as scholars, in a public realm, they have a right to propose criticisms and changes of any sort; as soon as they relinquish ,{[pg 240]}, that commitment, they become private employees or servants of the sovereign, bound by conscience and power to carry out the duties of their given office. The constitution of a public realm is not a universal activity, however, but a historically specific one: Free Software confronts the specific contemporary technical and legal infrastructure by which it is possible to propose criticisms and offer alternatives. What results is a recursive public filled not only with individuals who govern their own actions but also with code and concepts and licenses and forms of coordination that turn these actions into viable, concrete technical forms of life useful to inhabitants of the present. +={Dewey, John;Kant, Immanuel;critique, Free Software as;geeks:as moderns;reorientation of power and knowledge;recursive public} + +:B~ Part III modulations + +1~part_iii [Part III] -# + +_1 The question cannot be answered by argument. Experimental method means experiment, and the question can be answered only by trying, by organized effort. The reasons for making the trial are not abstract or recondite. They are found in the confusion, uncertainty and conflict that mark the modern world. . . . The task is to go on, and not backward, until the method of intelligence and experimental control is the rule in social relations and social direction. - john dewey, Liberalism and Social Action +={Dewey, John;experimentation} + +1~ 8. "If We Succeed, We Will Disappear" + +% ,{[pg 243]}, + +In early 2002, after years of reading and learning about Open Source and Free Software, I finally had a chance to have dinner with famed libertarian, gun-toting, Open Source-founding impresario Eric Raymond, author of The Cathedral and the Bazaar and other amateur anthropological musings on the subject of Free Software. He had come to Houston, to Rice University, to give a talk at the behest of the Computer and Information Technology Institute (CITI). Visions of a mortal confrontation between two anthropologists-manqué filled my head. I imagined explaining point by point why his references to self-organization and evolutionary psychology were misguided, and how the long tradition of economic anthropology contradicted basically everything he had to say about gift-exchange. Alas, two things conspired against this epic, if bathetic, showdown. +={Raymond, Eric Steven+4;Cathedral and the Bazaar;Free Software:anthropology and+1;Rice University+3} + +% cath baz, left out quotation marks for current index sort + +First, there was the fact that (as so often happens in meetings among geeks) there was only one woman present at dinner; she was ,{[pg 244]}, young, perhaps unmarried, but not a student—an interested female hacker. Raymond seated himself beside this woman, turned toward her, and with a few one-minute-long exceptions proceeded to lavish her with all of his available attention. The second reason was that I was seated next to Richard Baraniuk and Brent Hendricks. All at once, Raymond looked like the past of Free Software, arguing the same arguments, using the same rhetoric of his online publications, while Baraniuk and Hendricks looked like its future, posing questions about the transformation—the modulation—of Free Software into something surprising and new. +={Baraniuk, Richard+36;gender;Hendricks, Brent+36;modulation:of Free Software;participant observation} + +Baraniuk, a professor of electrical engineering and a specialist in digital signal processing, and Hendricks, an accomplished programmer, had started a project called Connexions, an "open content repository of educational materials." Far more interesting to me than Raymond’s amateur philosophizing was this extant project to extend the ideas of Free Software to the creation of educational materials—textbooks, in particular. +={Connexions project+7;Digital signal processing (DSP);textbooks} + +Rich and Brent were, by the looks of it, equally excited to be seated next to me, perhaps because I was answering their questions, whereas Raymond was not, or perhaps because I was a new hire at Rice University, which meant we could talk seriously about collaboration. Rich and Brent (and Jan Odegard, who, as director of CITI, had organized the dinner) were keen to know what I could add to help them understand the "social" aspects of what they wanted to do with Connexions, and I, in return, was equally eager to learn how they conceptualized their Free Software-like project: what had they kept the same and what had they changed in their own experiment? Whatever they meant by "social" (and sometimes it meant ethical, sometimes legal, sometimes cultural, and so on), they were clear that there were domains of expertise in which they felt comfortable (programming, project management, teaching, and a particular kind of research in computer science and electrical engineering) and domains in which they did not (the "norms" of academic life outside their disciplines, intellectual-property law, "culture"). Although I tried to explain the nature of my own expertise in social theory, philosophy, history, and ethnographic research, the academic distinctions were far less important than the fact that I could ask detailed and pointed questions about the project, questions that indicated to them that I must have some kind of stake in the domains that they needed filled—in particular, ,{[pg 245]}, around the question of whether Connexions was the same thing as Free Software, and what the implications of that might be. +={culture} + +Raymond courted and chattered on, then left, the event of his talk and dinner of fading significance, but over the following weeks, as I caught up with Brent and Rich, I became (surprisingly quickly) part of their novel experiment. + +2~ After Free Software + +My nonmeeting with Raymond is an allegory of sorts: an allegory of what comes after Free Software. The excitement around that table was not so much about Free Software or Open Source, but about a certain possibility, a kind of genotypic urge of which Free Software seemed a fossil phenotype and Connexions a live one. Rich and Brent were people in the midst of figuring something out. They were engaged in modulating the practices of Free Software. By modulation I mean exploring in detail the concrete practices—the how—of Free Software in order to ask what can be changed, and what cannot, in order to maintain something (openness?) that no one can quite put his finger on. What drew me immediately to Connexions was that it was related to Free Software, not metaphorically or ideologically, but concretely, practically, and experimentally, a relationship that was more about emergence out of than it was about the reproduction of forms. But the opposition between emergence and reproduction immediately poses a question, not unlike that of the identity of species in evolution: if Free Software is no longer software, what exactly is it? +={experimentation+1:see also modulations;modulation:practices of+4;practices:five components of Free Software} + +In part III I confront this question directly. Indeed, it was this question that necessitated part II, the analytic decomposition of the practices and histories of Free Software. In order to answer the question "Is Connexions Free Software?" (or vice versa) it was necessary to rethink Free Software as itself a collective, technical experiment, rather than as an expression of any ideology or culture. To answer yes, or no, however, merely begs the question "What is Free Software?" What is the cultural significance of these practices? The concept of a recursive public is meant to reveal in part the significance of both Free Software and emergent projects like Connexions; it is meant to help chart when these emergent projects branch off absolutely (cease to be public) and when they do not, by ,{[pg 246]}, focusing on how they modulate the five components that give Free Software its contemporary identity. +={cultural significance;recursive public+3;Free Software:components of+1} + +Connexions modulates all of the components except that of the movement (there is, as of yet, no real "Free Textbook" movement, but the "Open Access" movement is a close second cousin).~{ In January 2005, when I first wrote this analysis, this was true. By April 2006, the Hewlett Foundation had convened the Open Educational Resources "movement" as something that would transform the production and circulation of textbooks like those created by Connexions. Indeed, in Rich Baraniuk’s report for Hewlett, the first paragraph reads: "A grassroots movement is on the verge of sweeping through the academic world. The open education movement is based on a set of intuitions that are shared by a remarkably wide range of academics: that knowledge should be free and open to use and re-use; that collaboration should be easier, not harder; that people should receive credit and kudos for contributing to education and research; and that concepts and ideas are linked in unusual and surprising ways and not the simple linear forms that textbooks present. Open education promises to fundamentally change the way authors, instructors, and students interact worldwide" (Baraniuk and King, "Connexions"). (In a nice confirmation of just how embedded participation can become in anthropology, Baraniuk cribbed the second sentence from something I had written two years earlier as part of a description of what I thought Connexions hoped to achieve.) The "movement" as such still does not quite exist, but the momentum for it is clearly part of the actions that Hewlett hopes to achieve. }~ Perhaps the most complex modulation concerns coordination—changes to the practice of coordination and collaboration in academic-textbook creation in particular, and more generally to the nature of collaboration and coordination of knowledge in science and scholarship generally. +={coordination (component of Free Software);movement (component of Free Software)+2} + +Connexions emerged out of Free Software, and not, as one might expect, out of education, textbook writing, distance education, or any of those areas that are topically connected to pedagogy. That is to say, the people involved did not come to their project by attempting to deal with a problem salient to education and teaching as much as they did so through the problems raised by Free Software and the question of how those problems apply to university textbooks. Similarly, a second project, Creative Commons, also emerged out of a direct engagement with and exploration of Free Software, and not out of any legal movement or scholarly commitment to the critique of intellectual-property law or, more important, out of any desire to transform the entertainment industry. Both projects are resolutely committed to experimenting with the given practices of Free Software—to testing their limits and changing them where they can—and this is what makes them vibrant, risky, and potentially illuminating as cases of a recursive public. +={affinity (of geeks);commons+1;Creative Commons+1;pedagogy;recursive public:examples of+1} + +While both initiatives are concerned with conventional subject areas (educational materials and cultural productions), they enter the fray orthogonally, armed with anxiety about the social and moral order in which they live, and an urge to transform it by modulating Free Software. This binds such projects across substantive domains, in that they are forced to be oppositional, not because they want to be (the movement comes last), but because they enter the domains of education and the culture industry as outsiders. They are in many ways intuitively troubled by the existing state of affairs, and their organizations, tools, legal licenses, and movements are seen as alternative imaginations of social order, especially concerning creative freedom and the continued existence of a commons of scholarly knowledge. To the extent that these projects ,{[pg 247]}, remain in an orthogonal relationship, they are making a recursive public appear—something the textbook industry and the entertainment industry are, by contrast, not at all interested in doing, for obvious financial and political reasons. +={moral and technical order} + +2~ Stories of Connexion +={Connexions project:history and genesis of+26} + +I’m at dinner again. This time, a windowless hotel conference room in the basement maybe, or perhaps high up in the air. Lawyers, academics, activists, policy experts, and foundation people are semi-excitedly working their way through the hotel’s steam-table fare. I’m trying to tell a story to the assembled group—a story that I have heard Rich Baraniuk tell a hundred times—but I’m screwing it up. Rich always gets enthusiastic stares of wonder, light-bulbs going off everywhere, a subvocalized "Aha!" or a vigorous nod. I, on the other hand, am clearly making it too complicated. Faces and foreheads are squirmed up into lines of failed comprehension, people stare at the gravy-sodden food they’re soldiering through, weighing the option of taking another bite against listening to me complicate an already complicated world. I wouldn’t be doing this, except that Rich is on a plane, or in a taxi, delayed by snow or engineers or perhaps at an eponymous hotel in another city. Meanwhile, our co-organizer Laurie Racine, has somehow convinced herself that I have the childlike enthusiasm necessary to channel Rich. I’m flattered, but unconvinced. After about twenty minutes, so is she, and as I try to answer a question, she stops me and interjects, "Rich really needs to be here. He should really be telling this story." + +Miraculously, he shows up and, before he can even say hello, is conscripted into telling his story properly. I sigh in relief and pray that I’ve not done any irreparable damage and that I can go back to my role as straight man. I can let the superaltern speak for himself. The downside of participant observation is being asked to participate in what one had hoped first of all to observe. I do know the story—I have heard it a hundred times. But somehow what I hear, ears tuned to academic questions and marveling at some of the stranger claims he makes, somehow this is not the ear for enlightenment that his practiced and boyish charm delivers to those hearing it for the first time; it is instead an ear tuned to questions ,{[pg 248]}, of why: why this project? Why now? And even, somewhat convolutedly, why are people so fascinated when he tells the story? How could I tell it like Rich? + +Rich is an engineer, in particular, a specialist in Digital Signal Processing (DSP). DSP is the science of signals. It is in everything, says Rich: your cell phones, your cars, your CD players, all those devices. It is a mathematical discipline, but it is also an intensely practical one, and it’s connected to all kinds of neighboring fields of knowledge. It is the kind of discipline that can connect calculus, bioinformatics, physics, and music. The statistical and analytical techniques come from all sorts of research and end up in all kinds of interesting devices. So Rich often finds himself trying to teach students to make these kinds of connections—to understand that a Fourier transform is not just another chapter in calculus but a tool for manipulating signals, whether in bioinformatics or in music. +={Digital signal processing (DSP)} + +Around 1998 or 1999, Rich decided that it was time for him to write a textbook on DSP, and he went to the dean of engineering, Sidney Burris, to tell him about the idea. Burris, who is also a DSP man and longtime member of the Rice University community, said something like, "Rich, why don’t you do something useful?" By which he meant: there are a hundred DSP textbooks out there, so why do you want to write the hundred and first? Burris encouraged Rich to do something bigger, something ambitious enough to put Rice on the map. I mention this because it is important to note that even a university like Rice, with a faculty and graduate students on par with the major engineering universities of the country, perceives that it gets no respect. Burris was, and remains, an inveterate supporter of Connexions, precisely because it might put Rice "in the history books" for having invented something truly novel. +={Burris, C. Sidney;Connexions project:textbooks and+4;Rice University} + +At about the same time as his idea for a textbook, Rich’s research group was switching over to Linux, and Rich was first learning about Open Source and the emergence of a fully free operating system created entirely by volunteers. It isn’t clear what Rich’s aha! moment was, other than simply when he came to an understanding that such a thing as Linux was actually possible. Nonetheless, at some point, Rich had the idea that his textbook could be an Open Source textbook, that is, a textbook created not just by him, but by DSP researchers all over the world, and made available to everyone to make use of and modify and improve as they saw fit, just like Linux. Together with Brent Hendricks, Yan David Erlich, ,{[pg 249]}, and Ross Reedstrom, all of whom, as geeks, had a deep familiarity with the history and practices of Free and Open Source Software, Rich started to conceptualize a system; they started to think about modulations of different components of Free and Open Source Software. The idea of a Free Software textbook repository slowly took shape. +={Linux (Free Software project);Open Source:inspiration for Connexions+27;Reedstrom, Ross} + +Thus, Connexions: an "open content repository of high-quality educational materials." These "textbooks" very quickly evolved into something else: "modules" of content, something that has never been sharply defined, but which corresponds more or less to a small chunk of teachable information, like two or three pages in a textbook. Such modules are much easier to conceive of in sciences like mathematics or biology, in which textbooks are often multiauthored collections, finely divided into short chapters with diagrams, exercises, theorems, or programs. Modules lend themselves much less well to a model of humanities or social-science scholarship based in reading texts, discussion, critique, and comparison—and this bias is a clear reflection of what Brent, Ross, and Rich knew best in terms of teaching and writing. Indeed, the project’s frequent recourse to the image of an assembly-line model of knowledge production often confirms the worst fears of humanists and educators when they first encounter Connexions. The image suggests that knowledge comes in prepackaged and colorfully branded tidbits for the delectation of undergrads, rather than characterizing knowledge as a state of being or as a process. +={Connexions project:model of learning in|modules in+1} + +The factory image (figure 7) is a bit misleading. Rich’s and Brent’s imaginations are in fact much broader, which shows whenever they demo the project, or give a talk, or chat at a party about it. Part of my failure to communicate excitement when I tell the story of Connexions is that I skip the examples, which is where Rich starts: what if, he says, you are a student taking Calculus 101 and, at the same time, Intro to Signals and Systems—no one is going to explain to you how Fourier transforms form a bridge, or connection, between them. "Our brains aren’t organized in linear, chapter-by-chapter ways," Rich always says, "so why are our textbooks?" How can we give students a way to see the connection between statistics and genetics, between architecture and biology, between intellectual-property law and chemical engineering? Rich is always looking for new examples: a music class for kids that uses information from physics, or vice versa, for instance. Rich’s great hope is that the ,{[pg 250]}, ,{[pg 251]}, more modules there are in the Connexions commons, the more fantastic and fascinating might be the possibilities for such novel—and natural—connections. +={Connexions project:as "factory of knowledge"+3} + +% image placed after end of paragraph + +{ 2bits_08_07-100.png }image ~[* The Connexions textbook as a factory. Illustration by Jenn Drummond, Ross Reedstrom, Max Starkenberg, and others, 1999-2004. Used with permission. ]~ + +Free Software—and, in particular, Open Source in the guise of "self-organizing" distributed systems of coordination—provide a particular promise of meeting the challenges of teaching and learning that Rich thinks we face. Rich’s commitment is not to a certain kind of pedagogical practice, but to the "social" or "community" benefits of thousands of people working "together" on a textbook. Indeed, Connexions did not emerge out of education or educational technology; it was not aligned with any particular theory of learning (though Rich eventually developed a rhetoric of linked, networked, connected knowledge—hence the name Connexions—that he uses often to sell the project). There is no school of education at Rice, nor a particular constituency for such a project (teacher-training programs, say, or administrative requirements for online education). What makes Rich’s sell even harder is that the project emerged at about the same time as the high-profile failure of dotcom bubble-fueled schemes to expand university education into online education, distance education, and other systems of expanding the paying student body without actually inviting them onto campus. The largest of these failed experiments by far was the project at Columbia, which had reached the stage of implementation at the time the bubble burst in 2000.~{ See Chris Beam, "Fathom.com Shuts Down as Columbia Withdraws," Columbia Spectator, 27 January 2003, http://www.columbiaspectator.com/. Also see David Noble’s widely read critique, "Digital Diploma Mills." }~ +={Connexions project:relationship to education+2;distance learning+2} + +Thus, Rich styled Connexions as more than just a factory of knowledge—it would be a community or culture developing richly associative and novel kinds of textbooks—and as much more than just distance education. Indeed, Connexions was not the only such project busy differentiating itself from the perceived dangers of distance education. In April 2001 MIT had announced that it would make the content of all of its courses available for free online in a project strategically called OpenCourseWare (OCW). Such news could only bring attention to MIT, which explicitly positioned the announcement as a kind of final death blow to the idea of distance education, by saying that what students pay $35,000 and up for per year is not "knowledge"—which is free—but the experience of being at MIT. The announcement created pure profit from the perspective of MIT’s reputation as a generator and disseminator of scientific knowledge, but the project did not emerge directly out of an interest in mimicking the success of Open Source. That angle was ,{[pg 252]}, provided ultimately by the computer-science professor Hal Abelson, whose deep understanding of the history and growth of Free Software came from his direct involvement in it as a long-standing member of the computer-science community at MIT. OCW emerged most proximately from the strange result of a committee report, commissioned by the provost, on how MIT should position itself in the "distance/e-learning" field. The surprising response: don’t do it, give the content away and add value to the campus teaching and research experience instead.~{ "Provost Announces Formation of Council on Educational Technology," MIT Tech Talk, 29 September 1999, http://web.mit.edu/newsoffice/1999/council-0929.html. }~ +={Abelson, Hal;Massachusetts Institute of Technology (MIT):open courseware and+2;Open CourseWare (OCW)+2;Connexions project:Open CourseWare+2} + +OCW, Connexions, and distance learning, therefore, while all ostensibly interested in combining education with the networks and software, emerged out of different demands and different places. While the profit-driven demand of distance learning fueled many attempts around the country, it stalled in the case of OCW, largely because the final MIT Council on Educational Technology report that recommended OCW was issued at the same time as the first plunge in the stock market (April 2000). Such issues were not a core factor in the development of Connexions, which is not to say that the problems of funding and sustainability have not always been important concerns, only that genesis of the project was not at the administrative level or due to concerns about distance education. For Rich, Brent, and Ross the core commitment was to openness and to the success of Open Source as an experiment with massive, distributed, Internet-based, collaborative production of software—their commitment to this has been, from the beginning, completely and adamantly unwavering. Neverthless, the project has involved modulations of the core features of Free Software. Such modulations depend, to a certain extent, on being a project that emerges out of the ideas and practices of Free Software, rather than, as in the case of OCW, one founded as a result of conflicting goals (profit and academic freedom) and resulting in a strategic use of public relations to increase the symbolic power of the university over its fiscal growth. +={Reedstrom, Ross} + +% what of ich and brent? ross in index at this location + +When Rich recounts the story of Connexions, though, he doesn’t mention any of this background. Instead, like a good storyteller, he waits for the questions to pose themselves and lets his demonstration answer them. Usually someone asks, "How is Connexions different from OCW?" And, every time, Rich says something similar: Connexions is about "communities," about changing the way scholars collaborate and create knowledge, whereas OCW is simply ,{[pg 253]}, an attempt to transfer existing courses to a Web format in order to make the content of those courses widely available. Connexions is a radical experiment in the collaborative creation of educational materials, one that builds on the insights of Open Source and that actually encompasses the OCW project. In retrospective terms, it is clear that OCW was interested only in modulating the meaning of source code and the legal license, whereas Connexions seeks also to modulate the practice of coordination, with respect to academic textbooks. +={communities;coordination (component of Free Software):modulations of;modulation:practices of+3;practices:five components of Free Software+3;sharing source code (component of Free Software):modulations of+3} + +Rich’s story of the origin of Connexions usually segues into a demonstration of the system, in which he outlines the various technical, legal, and educational concepts that distinguish it. Connexions uses a standardized document format, the eXtensible Mark-up Language (XML), and a Creative Commons copyright license on every module; the Creative Commons license allows people not only to copy and distribute the information but to modify it and even to use it for commercial gain (an issue that causes repeated discussion among the team members). The material ranges from detailed explanations of DSP concepts (naturally) to K-12 music education (the most popular set of modules). Some contributors have added entire courses; others have created a few modules here and there. Contributors can set up workgroups to manage the creation of modules, and they can invite other users to join. Connexions uses a version-control system so that all of the changes are recorded; thus, if a module used in one class is changed, the person using it for another class can continue to use the older version if they wish. The number of detailed and clever solutions embodied in the system never ceases to thoroughly impress anyone who takes the time to look at it. +={Connexions project:model of learning+2;copyleft licenses (component of Free Software):modulations of+2} + +But what always animates people is the idea of random and flexible connection, the idea that a textbook author might be able to build on the work of hundreds of others who have already contributed, to create new classes, new modules, and creative connections between them, or surprising juxtapositions—from the biologist teaching a class on bioinformatics who needs to remind students of certain parts of calculus without requiring a whole course; to the architect who wants a studio to study biological form, not necessarily in order to do experiments in biology, but to understand buildings differently; to the music teacher who wants students to understand just enough physics to get the concepts of pitch and ,{[pg 254]}, timbre; to or the physicist who needs a concrete example for the explanation of waves and oscillation. + +The idea of such radical recombinations is shocking for some (more often for humanities and social-science scholars, rather than scientists or engineers, for reasons that clearly have to do with an ideology of authentic and individualized creative ability). The questions that result—regarding copyright, plagiarism, control, unauthorized use, misuse, misconstrual, misreading, defamation, and so on—generally emerge with surprising force and speed. If Rich were trying to sell a version of "distance learning," skepticism and suspicion would quickly overwhelm the project; but as it is, Connexions inverts almost all of the expectations people have developed about textbooks, classroom practice, collaboration, and copyright. More often than not people leave the discussion converted—no doubt helped along by Rich’s storytelling gift. + +2~ Modulations: From Free Software to Connexions +={modulation:practices of+10;sharing source code (component of Free Software):modulations of+10} + +Connexions surprises people for some of the same reasons as Free Software surprises people, emerging, as it does, directly out of the same practices and the same components. Free Software provides a template made up of the five components: shared source code, a concept of openness, copyleft licenses, forms of coordination, and a movement or ideology. Connexions starts with the idea of modulating a shared "source code," one that is not software, but educational textbook modules that academics will share, port, and fork. The experiment that results has implications for the other four components as well. The implications lead to new questions, new constraints, and new ideas. +={copyleft licenses (component of Free Software):modulations of;communities;coordination (component of Free Software):modulations of;practices:five components of Free Software;Connexions project:as Free Software project+3} + +% added index + +The modulation of source code introduces a specific and potentially confusing difference from Free Software projects: Connexions is both a conventional Free Software project and an unconventional experiment based on Free Software. There is, of course, plenty of normal source code, that is, a number of software components that need to be combined in order to allow the creation of digital documents (the modules) and to display, store, transmit, archive, and measure the creation of modules. The creation and management of this software is expected to function more or less like all Free Software projects: it is licensed using Free Software licenses, it is ,{[pg 255]}, built on open standards of various kinds, and it is set up to take contributions from other users and developers. The software system for managing modules is itself built on a variety of other Free Software components (and a commitment to using only Free Software). Connexions has created various components, which are either released like conventional Free Software or contributed to another Free Software project. The economy of contribution and release is a complex one; issues of support and maintenance, as well as of reputation and recognition, figure into each decision. Others are invited to contribute, just as they are invited to contribute to any Free Software project.~{ The software consists of a collection of different Open Source Software cobbled together to provide the basic platform (the Zope and Plone content-management frameworks, the PostGresQL database, the python programming language, and the cvs version-control software). }~ +={openness (component of Free Software)+2:modulations of+4} + +At the same time, there is "content," the ubiquitous term for digital creations that are not software. The creation of content modules, on the other hand (which the software system makes technically possible), is intended to function like a Free Software project, in which, for instance, a group of engineering professors might get together to collaborate on pieces of a textbook on DSP. The Connexions project does not encompass or initiate such collaborations, but, rather, proceeds from the assumption that such activity is already happening and that Connexions can provide a kind of alternative platform—an alternative infrastructure even—which textbook-writing academics can make use of instead of the current infrastructure of publishing. The current infrastructure and technical model of textbook writing, this implies, is one that both prevents people from taking advantage of the Open Source model of collaborative development and makes academic work "non-free." The shared objects of content are not source code that can be compiled, like source code in C, but documents marked up with XML and filled with "educational" content, then "displayed" either on paper or onscreen. +={content+5;infrastructure:of publishing+3;textbooks:model in Connexions+3} + +The modulated meaning of source code creates all kinds of new questions—specifically with respect to the other four components. In terms of openness, for instance, Connexions modulates this component very little; most of the actors involved are devoted to the ideals of open systems and open standards, insofar as it is a Free Software project of a conventional type. It builds on UNIX (Linux) and the Internet, and the project leaders maintain a nearly fanatical devotion to openness at every level: applications, programming languages, standards, protocols, mark-up languages, interface tools. Every place where there is an open (as opposed to a ,{[pg 256]}, proprietary) solution—that choice trumps all others (with one noteworthy exception).~{ The most significant exception has been the issue of tools for authoring content in XML. For most of the life of the Connexions project, the XML mark-up language has been well-defined and clear, but there has been no way to write a module in XML, short of directly writing the text and the tags in a text editor. For all but a very small number of possible users, this feels too much like programming, and they experience it as too frustrating to be worth it. The solution (albeit temporary) was to encourage users to make use of a proprietary XML editor (like a word processor, but capable of creating XML content). Indeed, the Connexions project’s devotion to openness was tested by one of the most important decisions its participants made: to pursue the creation of an Open Source XML text editor in order to provide access to completely open tools for creating completely open content. }~ James Boyle recently stated it well: "Wherever possible, design the system to run with open content, on open protocols, to be potentially available to the largest possible number of users, and to accept the widest possible range of experimental modifications from users who can themselves determine the development of the technology."~{ Boyle, "Mertonianism Unbound," 14. }~ +={Boyle, James;enlightenment;Copyleft licenses (component of Free Software):modulations of+6;modifiability+4;openness (component of Free Software):proprietary vs.+4|sustainability vs.+4} + +With respect to content, the devotion to openness is nearly identical, because conventional textbook publishers "lock in" customers (students) through the creation of new editions and useless "enhanced" content, which jacks up prices and makes it difficult for educators to customize their own courses. "Openness" in this sense trades on the same reasoning as it did in the 1980s: the most important aspect of the project is the information people create, and any proprietary system locks up content and prevents people from taking it elsewhere or using it in a different context. + +Indeed, so firm is the commitment to openness that Rich and Brent often say something like, "If we are successful, we will disappear." They do not want to become a famous online textbook publisher; they want to become a famous publishing infrastructure. Being radically open means that any other competitor can use your system—but it means they are using your system, and this is the goal. Being open means not only sharing the "source code" (content and modules), but devising ways to ensure the perpetual openness of that content, that is, to create a recursive public devoted to the maintenance and modifiability of the medium or infrastructure by which it communicates. Openness trumps "sustainability" (i.e., the self-perpetuation of the financial feasibility of a particular organization), and where it fails to, the commitment to openness has been compromised. + +The commitment to openness and the modulation of the meaning of source code thus create implications for the meaning of Free Software licenses: do such licenses cover this kind of content? Are new licenses necessary? What should they look like? Connexions was by no means the first project to stimulate questions about the applicability of Free Software licenses to texts and documents. In the case of EMACS and the GPL, for example, Richard Stallman had faced the problem of licensing the manual at the same time as the source code for the editor. Indeed, such issues would ultimately result in a GNU Free Documentation License intended narrowly to ,{[pg 257]}, cover software manuals. Stallman, due to his concern, had clashed during the 1990s with Tim O’Reilly, publisher and head of O’Reilly Press, which had long produced books and manuals for Free Software programs. O’Reilly argued that the principles reflected in Free Software licenses should not be applied to instructional books, because such books provided a service, a way for more people to learn how to use Free Software, and in turn created a larger audience. Stallman argued the opposite: manuals, just like the software they served, needed to be freely modifiable to remain useful. +={Stallman, Richard;EMACS (text editor);Free Documentation License (FDL)+1;General Public License (GPL):passim;Free Documentation License (FDL)+1;Software manuals} + +By the late 1990s, after Free Software and Open Source had been splashed across the headlines of the mainstream media, a number of attempts to create licenses modeled on Free Software, but applicable to other things, were under way. One of the earliest and most general was the Open Content License, written by the educational-technology researcher David Wiley. Wiley’s license was intended for use on any kind of content. Content could include text, digital photos, movies, music, and so on. Such a license raises new issues. For example, can one designate some parts of a text as "invariant" in order to prevent them from being changed, while allowing other parts of the text to be changed (the model eventually adopted by the GNU Free Documentation License)? What might the relationship between the "original" and the modified version be? Can one expect the original author to simply incorporate suggested changes? What kinds of forking are possible? Where do the "moral rights" of an author come into play (regarding the "integrity" of a work)? +={Wiley, Davis;authorship:moral rights of;Open content licenses} + +At the same time, the modulation of source code to include academic textbooks has extremely complex implications for the meaning and context of coordination: scholars do not write textbooks like programmers write code, so should they coordinate in the same ways? Coordination of a textbook or a course in Connexions requires novel experiments in textbook writing. Does it lend itself to academic styles of work, and in which disciplines, for what kinds of projects? In order to cash in on the promise of distributed, collaborative creation, it would be necessary to find ways to coordinate scholars. +={coordination (component of Free Software):modulations of} + +So, when Rich and Brent recognized in me, at dinner, someone who might know how to think about these issues, they were acknowledging that the experiment they had started had created a certain turbulence in their understanding of Free Software and, ,{[pg 258]}, in turn, a need to examine the kinds of legal, cultural, and social practices that would be at stake.~{ The movement is the component that remains unmodulated: there is no "free textbook" movement associated with Connexions, even though many of the same arguments that lead to a split between Free Software and Open Source occur here: the question of whether the term free is confusing, for example, or the role of for-profit publishers or textbook companies. In the end, most (though not all) of the Connexions staff and many of its users are content to treat it as a useful tool for composing novel kinds of digital educational material—not as a movement for the liberation of educational content. }~ + +2~ Modulations: From Connexions to Creative Commons + +I’m standing in a parking lot in 100 degree heat and 90 percent humidity. It is spring in Houston. I am looking for my car, and I cannot find it. James Boyle, author of Shamans, Software, and Spleens and distinguished professor of law at Duke University, is standing near me, staring at me, wearing a wool suit, sweating and watching me search for my car under the blazing sun. His look says simply, "If I don’t disembowel you with my Palm Pilot stylus, I am going to relish telling this humiliating story to your friends at every opportunity I can." Boyle is a patient man, with the kind of arch Scottish humor that can make you feel like his best friend, even as his stories of the folly of man unfold with perfect comic pitch and turn out to be about you. Having laughed my way through many an uproarious tale of the foibles of my fellow creatures, I am aware that I have just taken a seat among them in Boyle’s theater of human weakness. I repeatedly press the panic button on my key chain, in the hopes that I am near enough to my car that it will erupt in a frenzy of honking and flashing that will end the humiliation. +={Boyle, James+3;Connexions project:connection to Creative Commons+2;Creative Commons+26:connection to Connexions+2} + +The day had started well. Boyle had folded himself into my Volkswagen (he is tall), and we had driven to campus, parked the car in what no doubt felt like a memorable space at 9 A.M., and happily gone to the scheduled meeting—only to find that it had been mistakenly scheduled for the following day. Not my fault, though now, certainly, my problem. The ostensible purpose of Boyle’s visit was to meet the Connexions team and learn about what they were doing. Boyle had proposed the visit himself, as he was planning to pass through Houston anyway. I had intended to pester him with questions about the politics and possibilities of licensing the content in Connexions and with comparisons to MIT’s OCW and other such commons projects that Boyle knew of. + +Instead of attending the meeting, I took him back to my office, where I learned more about why he was interested in Connexions. Boyle’s interest was not entirely altruistic (nor was it designed to spend valuable quarter hours standing in a scorched parking lot as I looked for my subcompact car). What interested Boyle was finding ,{[pg 259]}, a constituency of potential users for Creative Commons, the nonprofit organization he was establishing with Larry Lessig, Hal Abelson, Michael Carroll, Eric Eldred, and others—largely because he recognized the need for a ready constituency in order to make Creative Commons work. The constituency was needed both to give the project legitimacy and to allow its founders to understand what exactly was needed, legally speaking, for the creation of a whole new set of Free Software-like licenses. +={Abelson, Hal+2;Eldred, Eric+3;Lessig, Lawrence+24} + +Creative Commons, as an organization and as a movement, had been building for several years. In some ways, Creative Commons represented a simple modulation of the Free Software license: a broadening of the license’s concept to cover other types of content. But the impetus behind it was not simply a desire to copy and extend Free Software. Rather, all of the people involved in Creative Commons were those who had been troubling issues of intellectual property, information technology, and notions of commons, public domains, and freedom of information for many years. Boyle had made his name with a book on the construction of the information society by its legal (especially intellectual property) structures. Eldred was a publisher of public-domain works and the lead plaintiff in a court case that went to the Supreme Court in 2002 to determine whether the recent extension of copyright term limits was constitutional. Abelson was a computer scientist with an active interest in issues of privacy, freedom, and law "on the electronic frontier." And Larry Lessig was originally interested in constitutional law, a clerk for Judge Richard Posner, and a self-styled cyberlaw scholar, who was, during the 1990s, a driving force for the explosion of interest in cyberlaw, much of it carried out at the Berkman Center for Internet and Society at Harvard University. +={Berkman Center for Internet and Society+1;Copyleft licenses (component of Free Software):modulations of;Creative Commons:origin and history of+4} + +With the exception of Abelson—who, in addition to being a famous computer scientist, worked for years in the same building that Richard Stallman camped out in and chaired the committee that wrote the report recommending OCW—none of the members of Creative Commons cut their teeth on Free Software projects (they were lawyers and activists, primarily) and yet the emergence of Open Source into the public limelight in 1998 was an event that made more or less instant and intuitive sense to all of them. During this time, Lessig and members of the Berkman Center began an "open law" project designed to mimic the Internet-based collaboration of the Open Source project among lawyers who might want to ,{[pg 260]}, contribute to the Eldred case. Creative Commons was thus built as much on a commitment to a notion of collaborative creation—the use of the Internet especially—but more generally on the ability of individuals to work together to create new things, and especially to coordinate the creation of these things by the use of novel licensing agreements. + +Creative Commons provided more than licenses, though. It was part of a social imaginary of a moral and technical order that extended beyond software to include creation of all kinds; notions of technical and moral freedom to make use of one’s own "culture" became more and more prominent as Larry Lessig became more and more involved in struggles with the entertainment industry over the "control of culture." But for Lessig, Creative Commons was a fall-back option; the direct route to a transformation of the legal structure of intellectual property was through the Eldred case, a case that built huge momentum throughout 2001 and 2002, was granted cert by the Supreme Court, and was heard in October of 2002. One of the things that made the case remarkable was the series of strange bedfellows it produced; among the economists and lawyers supporting the repeal of the 1998 "Sonny Bono" Copyright Term Extension Act were the arch free-marketeers and Nobel Prize winners Milton Friedman, James Buchanan, Kenneth Arrow, Ronald Coase, and George Akerlof. As Boyle pointed out in print, conservatives and liberals and libertarians all have reasons to be in favor of scaling back copyright expansion.~{ Boyle, "Conservatives and Intellectual Property." }~ Lessig and his team lost the case, and the Supreme Court essentially affirmed Congress’s interpretation of the Constitution that "for limited times" meant only that the time period be limited, not that it be short. +={moral and technical order;social imaginary} + +Creative Commons was thus a back-door approach: if the laws could not be changed, then people should be given the tools they needed to work around those laws. Understanding how Creative Commons was conceived requires seeing it as a modulation of both the notion of "source code" and the modulation of "copyright licenses." But the modulations take place in that context of a changing legal system that was so unfamiliar to Stallman and his EMACS users, a legal system responding to new forms of software, networks, and devices. For instance, the changes to the Copyright Act of 1976 created an unintended effect that Creative Commons would ultimately seize on. By eliminating the requirement to register copyrighted works (essentially granting copyright as soon as the ,{[pg 261]}, work is "fixed in a tangible medium"), the copyright law created a situation wherein there was no explicit way in which a work could be intentionally placed in the public domain. Practically speaking an author could declare that a work was in the public domain, but legally speaking the risk would be borne entirely by the person who sought to make use of that work: to copy it, transform it, sell it, and so on. With the explosion of interest in the Internet, the problem ramified exponentially; it became impossible to know whether someone who had placed a text, an image, a song, or a video online intended for others to make use of it—even if the author explicitly declared it "in the public domain." Creative Commons licenses were thus conceived and rhetorically positioned as tools for making explicit exactly what uses could be made of a specific work. They protected the rights of people who sought to make use of "culture" (i.e., materials and ideas and works they had not authored), an approach that Lessig often summed up by saying, "Culture always builds on the past." +={copyright:requirement to register;sharing source code (component of Free Software):modulations of;Creative Commons:activism of+1;public domain+4} + +The background to and context of the emergence of Creative Commons was of course much more complicated and fraught. Concerns ranged from the plights of university libraries with regard to high-priced journals, to the problem of documentary filmmakers unable to afford, or even find the owners of, rights to use images or snippets in films, to the high-profile fights over online music trading, Napster, and the RIAA. Over the course of four years, Lessig and the other founders of Creative Commons would address all of these issues in books, in countless talks and presentations and conferences around the world, online and off, among audiences ranging from software developers to entrepreneurs to musicians to bloggers to scientists. +={Napster;Recording Industry Association of America (RIAA)} + +Often, the argument for Creative Commons draws heavily on the concept of culture besieged by the content industries. A story which Lessig enjoys telling—one that I heard on several occasions when I saw him speak at conferences—was that of Mickey Mouse. An interesting, quasi-conspiratorial feature of the twentieth-century expansion of intellectual-property law is that term limits seem to have been extended right around the time Mickey Mouse was about to become public property. True or not, the point Lessig likes to make is that the Mouse is not the de novo creation of the mind of Walt Disney that intellectual-property law likes to pretend it is, but built on the past of culture, in particular, on Steamboat Willie, ,{[pg 262]}, Charlie Chaplin, Krazy Kat, and other such characters, some as inspiration, some as explicit material. The greatness in Disney’s creation comes not from the mind of Disney, but from the culture from which it emerged. Lessig will often illustrate this in videos and images interspersed with black-typewriter-font-bestrewn slides and a machine-gun style that makes you think he’s either a beat-poet manqué or running for office, or maybe both. +={Lessig, Lawrence:style of presentations+1;Disney, Walt;Mickey Mouse} + +Other examples of intellectual-property issues fill the books and talks of Creative Commons advocates, stories of blocked innovation, stifled creativity, and—the scariest point of all (at least for economist-lawyers)—inefficiency due to over-expansive intellectual-property laws and overzealous corporate lawyer-hordes.~{ Lessig’s output has been prodigious. His books include Code and Other Laws of Cyber Space, The Future of Ideas, Free Culture, and Code: Version 2.0. He has also written a large number of articles and is an active blogger (http://www.lessig.org/blog/). }~ Lessig often preaches to the converted (at venues like South by Southwest Interactive and the O’Reilly Open Source conferences), and the audiences are always outraged at the state of affairs and eager to learn what they can do. Often, getting involved in the Creative Commons is the answer. Indeed, within a couple of years, Creative Commons quickly became more of a movement (a modulation of the Free/Open Source movement) than an experiment in writing licenses. + +On that hot May day in 2002, however, Creative Commons was still under development. Later in the day, Boyle did get a chance to meet with the Connexions project team members. The Connexions team had already realized that in pursuing an experimental project in which Free Software was used as a template they created a need for new kinds of licenses. They had already approached the Rice University legal counsel, who, though well-meaning, were not grounded at all in a deep understanding of Free Software and were thus naturally suspicious of it. Boyle’s presence and his detailed questions about the project were like a revelation—a revelation that there were already people out there thinking about the very problem the Connexions team faced and that the team would not need to solve the problem themselves or make the Rice University legal counsel write new open-content licenses. What Boyle offered was the possibility for Connexions, as well as for myself as intermediary, to be involved in the detailed planning and license writing that was under way at Creative Commons. At the same time, it gave Creative Commons an extremely willing "early-adopter" for the license, and one from an important corner of the world: scholarly research and teaching.~{ There were few such projects under way, though there were many in the planning stages. Within a year, the Public Library of Science had launched itself, spearheaded by Harold Varmus, the former director of the National Institutes of Health. At the time, however, the only other large scholarly project was the MIT Open Course Ware project, which, although it had already agreed to use Creative Commons licenses, had demanded a peculiar one-off license. }~ My task, after recovering from the ,{[pg 263]}, shame of being unable to find my car, was to organize a workshop in August at which members of Creative Commons, Connexions, MIT’s OCW, and any other such projects would be invited to talk about license issues. +={Boyle, James;Connexions project:connection to Creative Commons+2|Open CourseWare+2;Creative Commons:connection to Connexions+2;Rice University:legal counsel of;Open CourseWare (OCW)+2} + +2~ Participant Figuring Out +={figuring out+15} + +The workshop I organized in August 2002 was intended to allow Creative Commons, Connexions, and MIT’s OCW project to try to articulate what each might want from the other. It was clear what Creative Commons wanted: to convince as many people as possible to use their licenses. But what Connexions and OCW might have wanted, from each other as well as from Creative Commons, was less clear. Given the different goals and trajectories of the two projects, their needs for the licenses differed in substantial ways—enough so that the very idea of using the same license was, at least temporarily, rendered impossible by MIT. While OCW was primarily concerned about obtaining permissions to place existing copyrighted work on the Web, Connexions was more concerned about ensuring that new work remain available and modifiable. +={moral and technical order+1} + +In retrospect, this workshop clarified the novel questions and problems that emerged from the process of modulating the components of Free Software for different domains, different kinds of content, and different practices of collaboration and sharing. Since then, my own involvement in this activity has been aimed at resolving some of these issues in accordance with an imagination of openness, an imagination of social order, that I had learned from my long experience with geeks, and not from my putative expertise as an anthropologist or a science-studies scholar. The fiction that I had at first adopted—that I was bringing scholarly knowledge to the table—became harder and harder to maintain the more I realized that it was my understanding of Free Software, gained through ongoing years of ethnographic apprenticeship, that was driving my involvement. +={geeks;social imaginary+1} + +Indeed, the research I describe here was just barely undertaken as a research project. I could not have conceived of it as a fundable activity in advance of discovering it; I could not have imagined the course of events in any of the necessary detail to write a proper proposal for research. Instead, it was an outgrowth of thinking and ,{[pg 264]}, participating that was already under way, participation that was driven largely by intuition and a feeling for the problem represented by Free Software. I wanted to help figure something out. I wanted to see how "figuring out" happens. While I could have organized a fundable research project in which I picked a mature Free Software project, articulated a number of questions, and spent time answering them among this group, such a project would not have answered the questions I was trying to form at the time: what is happening to Free Software as it spreads beyond the world of hackers and software? How is it being modulated? What kinds of limits are breached when software is no longer the central component? What other domains of thought and practice were or are "readied" to receive and understand Free Software and its implications?~{ The fact that I organized a workshop to which I invited "informants" and to which I subsequently refer as research might strike some, both in anthropology and outside it, as wrong. But it is precisely the kind of occasion I would argue has become central to the problematics of method in cultural anthropology today. On this subject, see Holmes and Marcus, "Cultures of Expertise and the Management of Globalization." Such strategic and seemingly ad hoc participation does not exclude one from attempting to later disentangle oneself from such participation, in order to comment on the value and significance, and especially to offer critique. Such is the attempt to achieve objectivity in social science, an objectivity that goes beyond the basic notions of bias and observer-effect so common in the social sciences. "Objectivity" in a broader social sense includes the observation of the conceptual linkages that both precede such a workshop (constituted the need for it to happen) and follow on it, independent of any particular meeting. The complexity of mobilizing objectivity in discussions of the value and significance of social or economic phenomena was well articulated a century ago by Max Weber, and problems of method in the sense raised by him seem to me to be no less fraught today. See Max Weber, "Objectivity in the Social Sciences." }~ +={modifiability+6;modulation:practices of+2} + +My experience—my participant-observation—with Creative Commons was therefore primarily done as an intermediary between the Connexions project (and, by implication, similar projects under way elsewhere) and Creative Commons with respect to the writing of licenses. In many ways this detailed, specific practice was the most challenging and illuminating aspect of my participation, but in retrospect it was something of a red herring. It was not only the modulation of the meaning of source code and of legal licenses that differentiated these projects, but, more important, the meaning of collaboration, reuse, coordination, and the cultural practice of sharing and building on knowledge that posed the trickiest of the problems. + +My contact at Creative Commons was not James Boyle or Larry Lessig, but Glenn Otis Brown, the executive director of that organization (as of summer 2002). I first met Glenn over the phone, as I tried to explain to him what Connexions was about and why he should join us in Houston in August to discuss licensing issues related to scholarly material. Convincing him to come to Texas was an easier sell than explaining Connexions (given my penchant for complicating it unnecessarily), as Glenn was an Austin native who had been educated at the University of Texas before heading off to Harvard Law School and its corrupting influence at the hands of Lessig, Charlie Nesson, and John Perry Barlow. +={Barlow, John Perry;Brown, Glen Otis+10;Nesson, Charlie} + +Glenn galvanized the project. With his background as a lawyer, and especially his keen interest in intellectual-property law, and his long-standing love of music of all kinds Glenn lent incredible enthusiasm to his work. Prior to joining Creative Commons, he had ,{[pg 265]}, clerked for the Hon. Stanley Marcus on the Eleventh Circuit Court of Appeals, in Miami, where he worked on the so-called Wind Done Gone case.~{ Suntrust v. Houghton Mifflin Co., U.S. Eleventh Circuit Court of Appeals, 2001, 252 F. 3d 1165. }~ His participation in the workshop was an experiment of his own; he was working on a story that he would tell countless times and which would become one of the core examples of the kind of practice Creative Commons wanted to encourage. + +A New York Times story describes how the band the White Stripes had allowed Steven McDonald, the bassist from Redd Kross, to lay a bass track onto the songs that made up the album White Blood Cells. In a line that would eventually become a kind of mantra for Creative Commons, the article stated: "Mr. McDonald began putting these copyrighted songs online without permission from the White Stripes or their record label; during the project, he bumped into Jack White, who gave him spoken assent to continue. It can be that easy when you skip the intermediaries."~{ Neil Strauss, "An Uninvited Bassist Takes to the Internet," New York Times, 25 August 2002, sec. 2, 23. }~ The ease with which these two rockers could collaborate to create a modified work (called, of course, Redd Blood Cells) without entering a studio, or, more salient, a law firm, was emblematic of the notion that "culture builds on the past" and that it need not be difficult to do so. +={Redd, Kross;White Stripes+1} + +Glenn told the story with obvious and animated enthusiasm, ending with the assertion that the White Stripes didn’t have to give up all their rights to do this, but they didn’t have to keep them all either; instead of "All Rights Reserved," he suggested, they could say "Some Rights Reserved." The story not only manages to capture the message and aims of Creative Commons, but is also a nice indication of the kind of dual role that Glenn played, first as a lawyer, and second as a kind of marketing genius and message man. The possibility of there being more than a handful of people like Glenn around was not lost on anyone, and his ability to switch between the language of law and that of nonprofit populist marketing was phenomenal.~{ Indeed, in a more self-reflective moment, Glenn once excitedly wrote to me to explain that what he was doing was "code-switching" and that he thought that geeks who constantly involved themselves in technology, law, music, gaming, and so on would be prime case studies for a code-switching study by anthropologists. }~ +={Creative Commons:marketing of} + +At the workshop, participants had a chance to hash out a number of different issues related to the creation of licenses that would be appropriate to scholarly content: questions of attribution and commercial use, modification and warranty; differences between federal copyright law concerning licenses and state law concerning commercial contracts. The starting point for most people was Free Software, but this was not the only starting point. There were at least two other broad threads that fed into the discussion and into the general understanding of the state of affairs facing projects like ,{[pg 266]}, Connexions or OCW. The first thread was that of digital libraries, hypertext, human-computer interaction research, and educational technology. These disciplines and projects often make common reference to two pioneers, Douglas Englebart and Theodore Nelson, and more proximately to things like Apple’s HyperCard program and a variety of experiments in personal academic computing. The debates and history that lead up to the possibility of Connexions are complex and detailed, but they generally lack attention to legal detail. With the exception of a handful of people in library and information science who have made "digital" copyright into a subspecialty, few such projects, over the last twenty-five years, have made the effort to understand, much less incorporate, issues of intellectual property into their purview. +={attribution:copyright licenses and;Copyleft licenses (component of Free Software):commercial use and|derivative uses and;Connexions project:relationship to hypertext} + +The other thread combines a number of more scholarly interests that come out of the disciplines of economics and legal theory: institutional economics, critical legal realism, law and economics—these are the scholastic designations. Boyle and Lessig, for example, are both academics; Boyle does not practice law, and Lessig has tried few cases. Nonetheless, they are both inheritors of a legal and philosophical pragmatism in which value is measured by the transformation of policy and politics, not by the mere extension or specification of conceptual issues. Although both have penned a large number of complicated theoretical articles (and Boyle is well known in several academic fields for his book Shamans, Software, and Spleens and his work on authorship and the law), neither, I suspect, would ever sacrifice the chance to make a set of concrete changes in legal or political practice given the choice. This point was driven home for me in a conversation I had with Boyle and others at dinner on the night of the launch of Creative Commons, in December 2002. During that conversation, Boyle said something to the effect of, "We actually made something; we didn’t just sit around writing articles and talking about the dangers that face us—we made something." He was referring as much to the organization as to the legal licenses they had created, and in this sense Boyle qualifies very much as a polymathic geek whose understanding of technology is that it is an intervention into an already constituted state of affairs, one that demonstrates its value by being created and installed, not by being assessed in the court of scholarly opinions. ,{[pg 267]}, +={Boyle, James+2;Lessig, Lawrence:law and economics and+2;institutional economics+2;intervention, technology as;polymaths;technology:as argument+3} + +Similarly, Lessig’s approach to writing and speaking is unabashedly aimed at transforming the way people approach intellectual-property law and, even more generally, the way they understand the relationship between their rights and their culture.~{ See Kelty, "Punt to Culture." }~ Lessig’s approach, at a scholarly level, is steeped in the teachings of law and economics (although, as he has playfully pointed out, a "second" Chicago school) but is focused more on the understanding and manipulation of norms and customs ("culture") than on law narrowly conceived.~{ Lessig, "The New Chicago School." }~ + +Informing both thinkers is a somewhat heterodox economic consensus drawn primarily from institutional economics, which is routinely used to make policy arguments about the efficacy or efficiency of the intellectual-property system. Both are also informed by an emerging consensus on treating the public domain in the same manner in which environmentalists treated the environment in the 1960s.~{ Hence, Boyle’s "Second Enclosure Movement" and "copyright conservancy" concepts (see Boyle, "The Second Enclosure Movement"; Bollier, Silent Theft). Perhaps the most sophisticated and compelling expression of the institutional-economics approach to understanding Free Software is the work of Yochai Benkler, especially "Sharing Nicely" and "Coase’s Penguin." See also Benkler, Wealth of Networks. }~ These approaches begin with long-standing academic and policy concerns about the status and nature of "public goods," not directly with the problem of Free Software or the Internet. In some ways, the concern with public goods, commons, the public domain, and collective action are part of the same "reorientation of power and knowledge" I identify throughout Two Bits: namely, the legitimation of the media of knowledge creation, communication, and circulation. Most scholars of institutional economics and public policy are, however, just as surprised and bewildered by the fact of Free Software as the rest of the world has been, and they have sought to square the existing understanding of public goods and collective action with this new phenomenon.~{ Steven Weber’s The Success of Open Source is exemplary. }~ +={public domain:environmentalism and;reorientation of power and knowledge} + +All of these threads form the weft of the experiment to modulate the components of Free Software to create different licenses that cover a broader range of objects and that deal with people and organizations that are not software developers. Rather than attempt to carry on arguments at the level of theory, however, my aim in participating was to see how and what was argued in practice by the people constructing these experiments, to observe what constraints, arguments, surprises, or bafflements emerged in the course of thinking through the creation of both new licenses and a new form of authorship of scholarly material. Like those who study "science in action" or the distinction between "law on the books" and "law in action," I sought to observe the realities of a practice ,{[pg 268]}, heavily determined by textual and epistemological frameworks of various sorts.~{ Carrington and King, "Law and the Wisconsin Idea." }~ +={modulation:of Free Software;experimentation+1;participant observation+1} + +In my years with Connexions I eventually came to see it as something in between a natural experiment and a thought experiment: it was conducted in the open, and it invited participation from working scholars and teachers (a natural experiment, in that it was not a closed, scholarly endeavor aimed at establishing specific results, but an essentially unbounded, functioning system that people could and would come to depend on), and yet it proceeded by making a series of strategic guesses (a thought experiment) about three related things: (1) what it is (and will be) possible to do technically; (2) what it is (and will be) possible to do legally; and (3) what scholars and educators have done and now do in the normal course of their activities. + +At the same time, this experiment gave shape to certain legal questions that I channeled in the direction of Creative Commons, issues that ranged from technical questions about the structure of digital documents, requirements of attribution, and URLs to questions about moral rights, rights of disavowal, and the meaning of "modification." The story of the interplay between Connexions and Creative Commons was, for me, a lesson in a particular mode of legal thinking which has been described in more scholarly terms as the difference between the Roman or, more proximately, the Napoleonic tradition of legal rationalism and the Anglo-American common-law tradition.~{ In particular, Glenn Brown suggested Oliver Wendell Holmes as a kind of origin point both for critical legal realism and for law and economics, a kind of filter through which lawyers get both their Nietzsche ,{[pg 344]}, and their liberalism (see Oliver Wendell Holmes, "The Path of the Law"). Glenn’s opinion was that what he called "punting to culture" (by which he meant writing minimalist laws which allow social custom to fill in the details) descended more or less directly from the kind of legal reasoning embodied in Holmes: "Note that [Holmes] is probably best known in legal circles for arguing that questions of morality be removed from legal analysis and left to the field of ethics. this is what makes him the godfather of both the posners of the world, and the crits, and the strange hybrids like lessig" (Glenn Brown, personal communication, 11 August 2003). }~ It was a practical experience of what exactly the difference is between legal code and software code, with respect to how those two things can be made flexible or responsive. + +1~ 9. Reuse, Modification, and the Nonexistence of Norms +={norms+12} + +% ,{[pg 269]}, + +The Connexions project was an experiment in modulating the practices of Free Software. It was not inspired by so much as it was based on a kind of template drawn from the experience of people who had some experience with Free Software, including myself. But how exactly do such templates get used? What is traced and what is changed? In terms of the cultural significance of Free Software, what are the implications of these changes? Do they maintain the orientation of a recursive public, or are they attempts to apply Free Software for other private concerns? And if they are successful, what are the implications for the domains they affect: education, scholarship, scientific knowledge, and cultural production? What effects do these changes have on the norms of work and the meaning and shape of knowledge in these domains? ,{[pg 270]}, +={recursive public+2;cultural significance} + +In this chapter I explore in ethnographic detail how the modulations of Free Software undertaken by Connexions and Creative Commons are related to the problems of reuse, modification, and the norms of scholarly production. I present these two projects as responses to the contemporary reorientation of knowledge and power; they are recursive publics just as Free Software is, but they expand the domain of practice in new directions, that is, into the scholarly world of textbooks and research and into the legal domains of cultural production more generally. +={reorientation of power and knowledge+2} + +In the course of "figuring out" what they are doing, these two projects encounter a surprising phenomenon: the changing meaning of the finality of a scholarly or creative work. Finality is not certainty. While certainty is a problematic that is well and often studied in the philosophy of science and in science studies, finality is less so. What makes a work stay a work? What makes a fact stay a fact? How does something, certain or not, achieve stability and identity? Such finality, the very paradigm of which is the published book, implies stability. But Connexions and Creative Commons, through their experiments with Free Software, confront the problem of how to stabilize a work in an unstable context: that of shareable source code, an open Internet, copyleft licenses, and new forms of coordination and collaboration.~{ Actor-network theory comes closest to dealing with such "ontological" issues as, for example, airplanes in John Law’s Aircraft Stories, the disease atheroscleroris in Annemarie Mol’s The Body Multiple, or in vitro fertilization in Charis Thompson’s Making Parents. The focus here on finality is closely related, but aims at revealing the temporal characteristics of highly modifiable kinds of knowledge-objects, like textbooks or databases, as in Geoffrey Bowker’s Memory Practices in the Sciences. }~ The meaning of finality will have important effects on the ability to constitute a politics around any given work, whether a work of art or a work of scholarship and science. The actors in Creative Commons and Connexions realize this, and they therefore form yet another instance of a recursive public, precisely because they seek ways to define the meaning of finality publicly and openly—and to make modifiability an irreversible aspect of the process of stabilizing knowledge. +={Actor Network Theory;figuring out;finality+57:certainty and stability vs.;modifiability:implications for finality+40} + +The modulations of Free Software performed by Connexions and Creative Commons reveal two significant issues. The first is the troublesome matter of the meaning of reuse, as in the reuse of concepts, ideas, writings, articles, papers, books, and so on for the creation of new objects of knowledge. Just as software source code can be shared, ported, and forked to create new versions with new functions, and just as software and people can be coordinated in new ways using the Internet, so too can scholarly and scientific content. I explore the implications of this comparison in this chapter. The central gambit of both Connexions and Creative Commons (and much of scientific practice generally) is that new work builds on ,{[pg 271]}, previous work. In the sciences the notion that science is cumulative is not at issue, but exactly how scientific knowledge accumulates is far from clear. Even if "standing on the shoulders of giants" can be revealed to hide machinations, secret dealings, and Machiavellian maneuvering of the most craven sort, the very concept of cumulative knowledge is sound. Building a fact, a result, a machine, or a theory out of other, previous works—this kind of reuse as progress is not in question. But the actual material practice of writing, publication, and the reuse of other results and works is something that, until very recently, has been hidden from view, or has been so naturalized that the norms of practice are nearly invisible to practitioners themselves. +={norms:existence of+1;publication:transformation by Internet+39;participant observation+1} + +This raises the other central concern of this chapter: that of the existence or nonexistence of norms. For an anthropologist to query whether or not norms exist might seem to theorize oneself out of a job; one definition of anthropology is, after all, the making explicit of cultural norms. But the turn to "practices" in anthropology and science studies has in part been a turn away from "norms" in their classic sociological and specifically Mertonian fashion. Robert Merton’s suggestion that science has been governed by norms—disinterestedness, communalism, organized skepticism, objectivity—has been repeatedly and roundly criticized by a generation of scholars in the sociology of scientific knowledge who note that even if such norms are asserted by actors, they are often subverted in the doing.~{ Merton, "The Normative Structure of Science." }~ But a striking thing has happened recently; those Mertonian norms of science have in fact become the more or less explicit goals in practice of scientists, engineers, and geeks in the wake of Free Software. If Mertonian norms do not exist, then they are being invented. This, of course, raises novel questions: can one create norms? What exactly would this mean? How are norms different from culture or from legal and technical constraints? Both Connexions and Creative Commons explicitly pose this question and search for ways to identify, change, or work with norms as they understand them, in the context of reuse. +={Goals, lack of in Free Software:norms as;Merton, Robert:Mertonian norms} + +2~ Whiteboards: What Was Publication? + +More than once, I have found myself in a room with Rich Baraniuk and Brent Hendricks and any number of other employees of the ,{[pg 272]}, Connexions project, staring at a whiteboard on which a number of issues and notes have been scrawled. Usually, the notes have a kind of palimpsestic quality, on account of the array of previous conversations that are already there, rewritten in tiny precise script in a corner, or just barely erased beneath our discussion. These conversations are often precipitated by a series of questions that Brent, Ross Reedstrom, and the development team have encountered as they build and refine the system. They are never simple questions. A visitor staring at the whiteboard might catch a glimpse of the peculiar madness that afflicts the project: a mixture of legal terms, technical terms, and terms like scholarly culture or DSP communities. I’m consulted whenever this mixture of terms starts to worry the developers in terms of legality, culture, or the relationship between the two. I’m generally put in the position of speaking either as a lawyer (which, legally speaking, I am not supposed to do) or as an anthropologist (which I do mainly by virtue of holding a position in an anthropology department). Rarely are the things I say met with assent: Brent and Ross, like most hackers, are insanely well versed in the details of intellectual-property law, and they routinely correct me when I make bold but not-quite-true assertions about it. Nonetheless, they rarely feel well versed enough to make decisions about legal issues on their own, and often I have been called—on again as a thoughtful sounding board, and off again as intermediary with Creative Commons. +={Baraniuk, Richard;Hendricks, Brent;Reedstrom, Ross;Digital signal processing (DSP)} + +This process, I have come to realize, is about figuring something out. It is not just a question of solving technical problems to which I might have some specific domain knowledge. Figuring out is modulation; it is template-work. When Free Software functions as a template for projects like Connexions, it does so literally, by allowing us to trace a known form of practice (Free Software) onto a less well known, seemingly chaotic background and to see where the forms match up and where they do not. One very good way to understand what this means in a particular case—that is, to see more clearly the modulations that Connexions has performed—is to consider the practice and institution of scholarly publication through the template of Free Software. +={Free Software:modulations of} + +Consider the ways scholars have understood the meaning and significance of print and publication in the past, prior to the Internet and the contemporary reorientation of knowledge and power. The list of ambitious historians and theorists of the relationship ,{[pg 273]}, of media to knowledge is long: Lucien Febvre, Walter Ong, Marshall McLuhan, Jack Goody, Roger Chartier, Friedrich Kittler, Elizabeth Eisenstein, Adrian Johns, to name a few.~{ See Johns, The Nature of the Book; Eisenstein, The Printing Press as an Agent of Change; McLuhan, The Gutenberg Galaxy and Understanding Media; Febvre and Martin, The Coming of the Book; Ong, Ramus, Method, and the Decay of Dialogue; Chartier, The Cultural Uses of Print in Early Modern France and The Order of Books; Kittler, Discourse Networks 1800/1900 and Gramophone, Film, Typewriter. }~ With the exception of Johns, however, the history of publication does not start with the conventional, legal, and formal practices of publication so much as it does with the material practices and structure of the media themselves, which is to say the mechanics and technology of the printed book.~{ There is less communication between the theorists and historians of copyright and authorship and those of the book; the former are also rich in analyses, such as Jaszi and Woodmansee, The Construction of Authorship; Mark Rose, Authors and Owners; St. Amour, The Copywrights; Vaidhyanathan, Copyrights and Copywrongs. }~ Ong’s theories of literacy and orality, Kittler’s re-theorization of the structure of media evolution, Goody’s anthropology of the media of accounting and writing—all are focused on the tangible media as the dependent variable of change. By contrast, Johns’s The Nature of the Book uncovers the contours of the massive endeavor involved in making the book a reliable and robust form for the circulation of knowledge in the seventeenth century and after. +={Goody, Jack;Eisenstein, Elizabeth+1;Johns, Adrian+3;Kittler, Friedrich;Ong, Walter;reorientation of power and knowledge;printing press+2} + +Prior to Johns’s work, arguments about the relationship of print and power fell primarily into two camps: one could overestimate the role of print and the printing press by suggesting that the "fixity" of a text and the creation of multiple copies led automatically to the spread of ideas and the rise of enlightenment. Alternately, one could underestimate the role of the book by suggesting that it was merely a transparent media form with no more or less effect on the circulation or evaluation of ideas than manuscripts or television. Johns notes in particular the influence of Elizabeth Eisenstein’s scholarship on the printing press (and Bruno Latour’s dependence on this in turn), which very strongly identified the characteristics of the printed work with the cultural changes seen to follow, including the success of the scientific revolution and the experimental method.~{ Eisenstein, The Printing Press as an Agent of Change. Eisenstein’s work makes direct reference to McLuhan’s thesis in The Gutenberg Galaxy, and Latour relies on these works and others in "Drawing Things Together." }~ For example, Eisenstein argued that fixity—the fact that a set of printed books can be exact copies of each other—implied various transformations in knowledge. Johns, however, is at pains to show just how unreliable texts are often perceived to be. From which sources do they come? Are they legitimate? Do they have the backing or support of scholars or the crown? In short, fixity can imply sound knowledge only if there is a system of evaluation already in place. Johns suggests a reversal of this now common-sense notion: "We may consider fixity not as an inherent quality, but as a transitive one. . . . We may adopt the principle that fixity exists only inasmuch as it is recognized and acted upon by people—and not otherwise. The consequence of this change in perspective is that print culture itself is immediately laid open to analysis. It becomes ,{[pg 274]}, a result of manifold representations, practices and conflicts, rather than just the manifold cause with which we are often presented. In contrast to talk of a ‘print logic’ imposed on humanity, this approach allows us to recover the construction of different print cultures in particular historical circumstances."~{ Johns, The Nature of the Book, 19-20. }~ +={Latour, Bruno;enlightenment;fixity+7} + +Johns’s work focuses on the elaborate and difficult cultural, social, and economic work involved, in the sixteenth and seventeenth centuries, in transforming the European book into the kind of authority it is taken to be across the globe today. The creation and standardization not just of books but of a publishing infrastructure involved the kind of careful social engineering, reputation management, and skills of distinction, exclusion, and consensus that science studies has effectively explored in science and engineering. Hence, Johns focuses on "print-in-the-making" and the relationship of the print culture of that period to the reliability of knowledge. Instead of making broad claims for the transformation of knowledge by print (eerily similar in many respects to the broad claims made for the Internet), Johns explores the clash of representations and practices necessary to create the sense, in the twentieth century, that there really is or was only one print culture. +={infrastructure:of publishing} + +The problem of publication that Connexions confronts is thus not simply caused by the invention or spread of the Internet, much less that of Free Software. Rather, it is a confrontation with the problems of producing stability and finality under very different technical, legal, and social conditions—a problem more complex even than the "different print cultures in particular historical circumstances" that Johns speaks of in regard to the book. Connexions faces two challenges: that of figuring out the difference that today introduces with respect to yesterday, and that of creating or modifying an infrastructure in order to satisfy the demands of a properly authoritative knowledge. Connexions textbooks of necessity look different from conventional textbooks; they consist of digital documents, or "modules," that are strung together and made available through the Web, under a Creative Commons license that allows for free use, reuse, and modification. This version of "publication" clearly has implications for the meaning of authorship, ownership, stewardship, editing, validation, collaboration, and verification. +={authorship;Connexions project:textbooks and+15;Connexions project:meaning of publication+15;publication:as notional event+1} + +The conventional appearance of a book—in bookstores, through mail-order, in book clubs, libraries, or universities—was an event that signified, as the name suggests, its official public appearance ,{[pg 275]}, in the world. Prior to this event, the text circulated only privately, which is to say only among the relatively small network of people who could make copies of it or who were involved in its writing, editing, proofreading, reviewing, typesetting, and so on. With the Internet, the same text can be made instantly available at each of these stages to just as many or more potential readers. It effectively turns the event of publication into a notional event—the click of a button—rather than a highly organized, material event. Although it is clear that the practice of publication has become denaturalized or destabilized by the appearance of new information technologies, this hardly implies that the work of stabilizing the meaning of publication—and producing authoritative knowledge as a result—has ceased. The tricky part comes in understanding how Free Software is used as a template by which the authority of publication in the Gutenberg Galaxy is being transformed into the authority of publication in the Turing Universe. +={Connexions project:stages of producing a document in} + +2~ Publication in Connexions + +In the case of Connexions there are roughly three stages to the creation of content. The first, temporally speaking, is whatever happens before Connexions is involved, that is, the familiar practices of what I would call composition, rather than simply writing. Some project must be already under way, perhaps started under the constraints of and in the era of the book, perhaps conceived as a digital textbook or an online textbook, but still, as of yet, written on paper or saved in a Word document or in LaTeX, on a scholar’s desktop. It could be an individual project, as in the case of Rich’s initial plan to write a DSP textbook, or it could be a large collaborative project to write a textbook. +={LaTeX (typesetting language);Connexions project:stages of producing a document in+3} + +The second stage is the one in which the document or set of documents is translated ("Connexified") into the mark-up system used by Connexions. Connexions uses the eXtensible Mark-up Language (XML), in particular a subset of tags that are appropriate to textbooks. These "semantic" tags (e.g., ) refer only to the meaning of the text they enclose, not to the "presentation" or syntactic look of what they enclose; they give the document the necessary structure it needs to be transformed in a number of creative ways. Because XML is related only to content, and not to ,{[pg 276]}, presentation (it is sometimes referred to as "agnostic"), the same document in Connexions can be automatically made to look a number of different ways, as an onscreen presentation in a browser, as a pdf document, or as an on-demand published work that can be printed out as a book, complete with continuous page numbering, footnotes (instead of links), front and back matter, and an index. Therein lies much of Connexions’s technical wizardry. +={Extensible Mark-up Language (XML)+1} + +During the second stage, that of being marked up in XML, the document is not quite public, although it is on the Internet; it is in what is called a workgroup, where only those people with access to the particular workgroup (and those have been invited to collaborate) can see the document. It is only when the document is finished, ready to be distributed, that it will enter the third, "published" stage—the stage at which anyone on the Internet can ask for the XML document and the software will display it, using style sheets or software converters, as an HTML page, a pdf document for printing, or as a section of a larger course. However, publication does not here signify finality; indeed, one of the core advantages of Connexions is that the document is rendered less stable than the book-object it mimics: it can be updated, changed, corrected, deleted, copied, and so on, all without any of the rigmarole associated with changing a published book or article. Indeed, the very powerful notion of fixity theorized by McLuhan and Eisenstein is rendered moot here. The fact that a document has been printed (and printed as a book) no longer means that all copies will be the same; indeed, it may well change from hour to hour, depending on how many people contribute (as in the case of Free Software, which can go through revisions and updates as fast, or faster, than one can download and install new versions). With Wikipedia entries that are extremely politicized or active, for example, a "final" text is impossible, although the dynamics of revision and counter-revision do suggest outlines for the emergence of some kinds of stability. But Connexions differs from Wikipedia with respect to this finality as well, because of the insertion of the second stage, during which a self-defined group of people can work on a nonpublic text before committing changes that a public can see. +={Eisenstein, Elizabeth;McLuhan, Marshall;Hypertext Transfer Mark-up Language (HTML);Wikipedia (collaborative encyclopedia)+1;finality:in Wikipedia and Connexions+1} + +It should be clear, given the example of Connexions, or any similar project such as Wikipedia, that the changing meaning of "publication" in the era of the Internet has significant implications, both practical (they affect the way people can both write and publish ,{[pg 277]}, their works) and legal (they fit uneasily into the categories established for previous media). The tangibility of a textbook is quite obviously transformed by these changes, but so too is the cultural significance of the practice of writing a textbook. And if textbooks are written differently, using new forms of collaboration and allowing novel kinds of transformation, then the validation, certification, and structure of authority of textbooks also change, inviting new forms of open and democratic participation in writing, teaching, and learning. No longer are all of the settled practices of authorship, collaboration, and publication configured around the same institutional and temporal scheme (e.g., the book and its publishing infrastructure). In a colloquial sense, this is obvious, for instance, to any musician today: recording and releasing a song to potentially millions of listeners is now technically possible for anyone, but how that fact changes the cultural significance of music creation is not yet clear. For most musicians, creating music hasn’t changed much with the introduction of digital tools, since new recording and composition technologies largely mimic the recording practices that preceded them (for example, a program like Garage Band literally looks like a four-track recorder on the screen). Similarly, much of the practice of digital publication has been concerned with recreating something that looks like traditional publication.~{ On this subject, cf. Pablo Boczkowski’s study of the digitization of newspapers, Digitizing the News. }~ +={music:production} + +Perhaps unsurprisingly, the Connexions team spent a great deal of time at the outset of the project creating a pdf-document-creation system that would essentially mimic the creation of a conventional textbook, with the push of a button.~{ Conventional here is actually quite historically proximate: the system creates a pdf document by translating the XML document into a LaTeX document, then into a pdf document. LaTeX has been, for some twenty years, a standard text-formatting and typesetting language used by some ,{[pg 345]}, sectors of the publishing industry (notably mathematics, engineering, and computer science). Were it not for the existence of this standard from which to bootstrap, the Connexions project would have faced a considerably more difficult challenge, but much of the infrastructure of publishing has already been partially transformed into a computer-mediated and -controlled system whose final output is a printed book. Later in Connexions’s lifetime, the group coordinated with an Internet-publishing startup called Qoop.com to take the final step and make Connexions courses available as print-on-demand, cloth-bound textbooks, complete with ISBNs and back-cover blurbs. }~ But even this process causes a subtle transformation: the concept of "edition" becomes much harder to track. While a conventional textbook is a stable entity that goes through a series of printings and editions, each of which is marked on its publication page, a Connexions document can go through as many versions as an author wants to make changes, all the while without necessarily changing editions. In this respect, the modulation of the concept of source code translates the practices of updating and "versioning" into the realm of textbook writing. Recall the cases ranging from the "continuum" of UNIX versions discussed by Ken Thompson to the complex struggles over version control in the Linux and Apache projects. In the case of writing source code, exactitude demands that the change of even a single character be tracked and labeled as a version change, whereas a ,{[pg 278]}, conventional-textbook spelling correction or errata issuance would hardly create the need for a new edition. +={Apache (Free Software project);editions, print vs. electronic+3:see also versions;Linux (Free Software project);UNIX operating system:allegiance to versions of} + +In the Connexions repository all changes to a text are tracked and noted, but the identity of the module does not change. "Editions" have thus become "versions," whereas a substantially revised or changed module might require not reissuance but a forking of that module to create one with a new identity. Editions in publishing are not a feature of the medium per se; they are necessitated by the temporal and spatial practices of publication as an event, though this process is obviously made visible only in the book itself. In the same way, versioning is now used to manage a process, but it results in a very different configuration of the medium and the material available in that medium. Connexions traces the template of software production (sharing, porting, and forking and the norms and forms of coordination in Free Software) directly onto older forms of publication. Where the practices match, no change occurs, and where they don’t, it is the reorientation of knowledge and power and the emergence of recursive publics that serves as a guide to the development of the system. +={reorientation of power and knowledge+4} + +Legally speaking, the change from editions to versions and forks raises troubling questions about the boundaries and status of a copyrighted work. It is a peculiar feature of copyright law that it needs to be updated regularly each time the media change, in order to bring certain old practices into line with new possibilities. Scattered throughout the copyright statutes is evidence of old new media: gramophones, jukeboxes, cable TV, photocopiers, peer-to-peer file-sharing programs, and so on. Each new form of communication shifts the assumptions of past media enough that they require a reevaluation of the putative underlying balance of the constitutional mandate that gives (U.S.) intellectual-property law its inertia. Each new device needs to be understood in terms of creation, storage, distribution, production, consumption, and tangibility, in order to assess the dangers it poses to the rights of inventors and artists. +={copyright:specificity of media and+1} + +Because copyright law "hard codes" the particular media into the statutes, copyright law is comfortable with, for example, book editions or musical recordings. But in Connexions, new questions arise: how much change constitutes a new work, and thus demands a new copyright license? If a licensee receives one copy of a work, to which versions will he or she retain rights after changes? Because ,{[pg 279]}, of the complexity of the software involved, there are also questions that the law simply cannot deal with (just as it had not been able to do in the late 1970s with respect to the definition of software): is the XML document equivalent to the viewable document, or must the style sheet also be included? Where does the "content" begin and the "software" end? Until the statutes either incorporate these new technologies or are changed to govern a more general process, rather than a particular medium, these questions will continue to emerge as part of the practice of writing. +={Connexions project:line between content and software} + +This denaturalization of the notion of "publication" is responsible for much of the surprise and concern that greets Connexions and projects like it. Often, when I have shown the system to scholars, they have displayed boredom mixed with fear and frustration: "It can never replace the book." On the one hand, Connexions has made an enormous effort to make its output look as much like conventional books as possible; on the other hand, the anxiety evinced is justified, because what Connexions seeks to replace is not the book, which is merely ink and paper, but the entire publishing process. The fact that it is not replacing the book per se, but the entire process whereby manuscripts are made into stable and tangible objects called books is too overwhelming for most scholars to contemplate—especially scholars who have already mastered the existing process of book writing and creation. The fact that the legal system is built to safeguard something prior to and not fully continuous with the practice of Connexions only adds to the concern that such a transformation is immodest and risky, that it endangers a practice with centuries of stability behind it. Connexions, however, is not the cause of destabilization; rather, it is a response to or recognition of a problem. It is not a new problem, but one that periodically reemerges: a reorientation of knowledge and power that includes questions of enlightenment and rationality, democracy and self-governance, liberal values and problems of the authority and validation of knowledge. The salient moments of correlation are not the invention of the printing press and the Internet, but the struggle to make published books into a source of authoritative knowledge in the seventeenth and eighteenth centuries and the struggle to find ways to do the same with the Internet today.~{ See Johns, The Nature of the Book; Warner, The Letters of the Republic. }~ +={printing press} + +Connexions is, in many ways, understood by its practitioners to be both a response to the changing relations of knowledge and power, ,{[pg 280]}, one that reaffirms the fundamental values of academic freedom and the circulation of knowledge, and also an experiment with, even a radicalization of, the ideals of both Free Software and Mertonian science. The transformation of the meaning of publication implies a fundamental shift in the status, in the finality of knowledge. It seeks to make of knowledge (knowledge in print, not in minds) something living and constantly changing, as opposed to something static and final. The fact that publication no longer signifies finality—that is, no longer signifies a state of fixity that is assumed in theory (and frequently in practice) to account for a text’s reliability—has implications for how the text is used, reused, interpreted, valued, and trusted.~{ On fixity, see Eisenstein’s The Printing Press as an Agent of Change which cites McLuhan’s The Gutenberg Galaxy. The stability of texts is also questioned routinely by textual scholars, especially those who work with manuscripts and complicated varoria (for an excellent introduction, see Bornstein and Williams, Palimpsest). Michel Foucault’s "What Is an Author?" addresses a related but orthogonal problematic and is unconcerned with the relatively sober facts of a changing medium. }~ Whereas the traditional form of the book is the same across all printed versions or else follows an explicit practice of appearing in editions (complete with new prefaces and forewords), a Connexions document might very well look different from week to week or year to year.~{ A salient and recent point of comparison can be found in the form of Lawrence Lessig’s "second edition" of his book Code, which is titled Code: Version 2.0 (version is used in the title, but edition is used in the text). The first book was published in 1999 ("ancient history in Internet time"), and Lessig convinced the publisher to make it available as a wiki, a collaborative Web site which can be directly edited by anyone with access. The wiki was edited and updated by hordes of geeks, then "closed" and reedited into a second edition with a new preface. It is a particularly tightly controlled example of collaboration; although the wiki and the book were freely available, the modification and transformation of them did not amount to a simple free-for-all. Instead, Lessig leveraged his own authority, his authorial voice, and the power of Basic Books to create something that looks very much like a traditional second edition, although it was created by processes unimaginable ten years ago. }~ While a textbook might also change significantly to reflect the changing state of knowledge in a given field, it is an explicit goal of Connexions to allow this to happen "in real time," which is to say, to allow educators to update textbooks as fast as they do scientific knowledge.~{ The most familiar comparison is Wikipedia, which was started after Connexions, but grew far more quickly and dynamically, largely due to the ease of use of the system (a bone of some contention among the Connexions team). Wikipedia has come under assault primarily for being unreliable. The suspicion and fear that surround Wikipedia are similar to those that face Connexions, but in the case of Wikipedia entries, the commitment to openness is stubbornly meritocratic: any article can be edited by anyone at anytime, and it matters not how firmly one is identified as an expert by rank, title, degree, or experience—a twelve year old’s knowledge of the Peloponnesian War is given the same access and status as an eighty-year-old classicist’s. Articles are not owned by individuals, and ,{[pg 346]}, all work is pseudonymous and difficult to track. The range of quality is therefore great, and the mainstream press has focused largely on whether Wikipedia is more or less reliable than conventional encyclopedias, not on the process of knowledge production. See, for instance, George Johnson, "The Nitpicking of the Masses vs. the Authority of the Experts," New York Times, 3 January 2006, Late Edition—Final, F2; Robert McHenry, "The Faith-based Encyclopedia," TCS Daily, 15 November 2004, http://www.techcentralstation.com/111504A.html. }~ +={Merton, Robert:Mertonian norms;Connexions project:roles in;finality:fixity vs.;fixity} + +These implications are not lost on the Connexions team, but neither are they understood as goals or as having simple solutions. There is a certain immodest, perhaps even reckless, enthusiasm surrounding these implications, an enthusiasm that can take both polymath and transhumanist forms. For instance, the destabilization of the contemporary textbook-publishing system that Connexions represents is (according to Rich) a more accurate way to represent the connections between concepts than a linear textbook format. Connexions thus represents a use of technology as an intervention into an existing context of practice. The fact that Connexions could also render the reliability or trustworthiness of scholarly knowledge unstable is sometimes discussed as an inevitable outcome of technical change—something that the world at large, not Connexions, must learn to deal with. +={intervention, technology as;polymaths;transhumanism} + +To put it differently, the "goal" of Connexions was never to destroy publishing, but it has been structured by the same kind of imaginations of moral and technical order that pervade Free Software and the construction of the Internet. In this sense Rich, Brent, and others are geeks in the same sense as Free Software geeks: they ,{[pg 281]}, share a recursive public devoted to achieving a moral and technical order in which openness and modifiability are core values ("If we are successful, we will disappear"). The implication is that the existing model and infrastructure for the publication of textbooks is of a different moral and technical order, and thus that Connexions needs to innovate not only the technology (the source code or the openness of the system) or the legal arrangements (licenses) but also the very norms and forms of textbook writing itself (coordination and, eventually, a movement). If publication once implied the appearance of reliable, final texts—even if the knowledge therein could be routinely contested by writing more texts and reviews and critiques—Connexions implies the denaturalization of not knowledge per se, but of the process whereby that knowledge is stabilized and rendered reliable, trustworthy. +={Hendricks, Brent;geeks;communities:norms and+1;recursive public} + +A keyword for the transformation of textbook writing is community, as in the tagline of the Connexions project: "Sharing Knowledge and Building Communities." Building implies that such communities do not yet exist and that the technology will enable them; however, Connexions began with the assumption that there exist standard academic practices and norms of creating teaching materials. As a result, Connexions both enables these practices and norms, by facilitating a digital version of the textbook, and intervenes in them, by creating a different process for creating a textbook. Communities are both assumed and desired. Sometimes they are real (a group of DSP engineers, networked around Rich and others who work in his subspecialty), and sometimes they are imagined (as when in the process of grant writing we claim that the most important component of the success of the project is the "seeding" of scholarly communities). Communities, furthermore, are not audiences or consumers, and sometimes not even students or learners. They are imagined to be active, creative producers and users of teaching materials, whether for teaching or for the further creation of such materials. The structure of the community has little to do with issues of governance, solidarity, or pedagogy, and much more to do with a set of relationships that might obtain with respect to the creation of teaching materials—a community of collaborative production or collaborative debugging, as in the modulation of forms of coordination, modulated to include the activity of creating teaching materials. ,{[pg 282]}, +={norms:academic;coordination (component of Free Software):modulations of;Digital signal processing (DSP)} + +2~ Agency and Structure in Connexions +={Authorship+29;Connexions project:roles in+29;Roles, in Connexions+29} + +One of the most animated whiteboard conversations I remember having with Brent and Ross concerned difference between the possible "roles" that a Connexions user might occupy and the implications this could have for both the technical features of the system and the social norms that Connexions attempts to maintain and replicate. Most software systems are content to designate only "users," a generic name-and-password account that can be given a set of permissions (and which has behind it a long and robust tradition in computer-operating-system and security research). Users are users, even if they may have access to different programs and files. What Connexions needed was a way to designate that the same person might have two different exogenous roles: a user might be the author, but not the owner of the content, and vice versa. For instance, perhaps Rice University maintains the copyright for a work, but the author is credited for its creation. Such a situation—known, in legal terms, as "work for hire"—is routine in some universities and most corporations. So while the author is generally given the freedom and authority to create and modify the text as he or she sees fit, the university asserts copyright ownership in order to retain the right to commercially exploit the work. Such a situation is far from settled and is, of course, politically fraught, but the Connexions system, in order to be useful at all to anyone, needed to accommodate this fact. Taking an oppositional political stand would render the system useless in too many cases or cause it to become precisely the kind of authorless, creditless system as Wikipedia—a route not desired by many academics. In a perfectly open world all Connexions modules might each have identical authors and owners, but pragmatism demands that the two roles be kept separate. +={Hendricks, Brent+14;copyright:works for hire;credit+5;users, status in Connexions;Wikipedia (collaborative encyclopedia)} + +Furthermore, there are many people involved every day in the creation of academic work who are neither the author nor the owner: graduate students and undergraduates, research scientists, technicians, and others in the grand, contested, complex academic ecology. In some disciplines, all contributors may get authorship credit and some of them may even share ownership, but often many of those who do the work get mentioned only in acknowledgments, or not at all. Again, although the impulse of the creators of Connexions might be to level the playing field and allow only one kind of user, the fact of the matter is that academics simply would not use ,{[pg 283]}, such a system.~{ Again, a comparison with Wikipedia is apposite. Wikipedia is, morally speaking, and especially in the persona of its chief editor, Jimbo Wales, totally devoted to merit-based equality, with users getting no special designation beyond the amount and perceived quality of the material they contribute. Degrees or special positions of employment are anathema. It is a quintessentially American, anti-intellectual-fueled, Horatio Alger-style approach in which the slate is wiped clean and contributors are given a chance to prove themselves independent of background. Connexions, by contrast, draws specifically from the ranks of intellectuals or academics and seeks to replace the infrastructure of publishing. Wikipedia is interested only in creating a better encyclopedia. In this respect, it is transhumanist in character, attributing its distinctiveness and success to the advances in technology (the Internet, wiki, broadband connections, Google). Connexions on the other hand is more polymathic, devoted to intervening into the already complexly constituted organizational practice of scholarship and academia. }~ The need for a role such as "maintainer" (which might also include "editor"), which was different from author or owner, thus also presented itself. +={Connexions project:roles in} + +As Brent, Ross, and I stared at the whiteboard, the discovery of the need for multiple exogenous roles hit all of us in a kind of slow-motion shockwave. It was not simply that the content needed to have different labels attached to it to keep track of these people in a database—something deeper was at work: the law and the practice of authorship actually dictated, to a certain extent, what the software itself should look like. All of sudden, the questions were preformatted, so to speak, by the law and by certain kinds of practices that had been normalized and thus were nearly invisible: who should have permission to change what? Who will have permission to add or drop authors? Who will be allowed to make what changes, and who will have the legal right to do so and who the moral or customary right? What implications follow from the choices the designers make and the choices we present to authors or maintainers? +={permission+9} + +The Creative Commons licenses were key to revealing many of these questions. The licenses were in themselves modulations of Free Software licenses, but created with people like artists, musicians, scholars, and filmmakers in mind. Without them, the content in Connexions would be unlicensed, perhaps intended to be in the public domain, but ultimately governed by copyright statutes that provided no clear answers to any of these questions, as those statutes were designed to deal with older media and a different publication process. Using the Creative Commons licenses, on the other hand, meant that the situation of the content in Connexions became well-defined enough, in a legal sense, to be used as a constraint in defining the structure of the software system. The license itself provided the map of the territory by setting parameters for things such as distribution, modification, attribution, and even display, reading, or copying. +={attribution:copyright licensing and+3;Creative Commons+2;public domain:Creative Commons licenses and+2} + +For instance, when the author and owner are different, it is not at all obvious who should be given credit. Authors, especially academic authors, expect to be given credit (which is often all they get) for an article or a textbook they have written, yet universities often retain ownership of those textbooks, and ownership would seem to imply a legal right to be identified as both owner and author (e.g., Forrester Research reports or UNESCO reports, which hide the ,{[pg 284]}, identity of authors). In the absence of any licenses, such a scenario has no obvious solution or depends entirely on the specific context. However, the Creative Commons licenses specified the meaning of attribution and the requirement to maintain the copyright notice, thus outlining a procedure that gave the Connexions designers fixed constraints against which to measure how they would implement their system. +={authorship:ownership vs.+3} + +A positive result of such constraints is that they allow for a kind of institutional flexibility that would not otherwise be possible. Whether a university insists on expropriating copyright or allows scholars to keep their copyrights, both can use Connexions. Connexions is more "open" than traditional textbook publishing because it allows a greater number of heterogeneous contributors to participate, but it is also more "open" than something like Wikipedia, which is ideologically committed to a single definition of authorship and ownership (anonymous, reciprocally licensed collaborative creation by authors who are also the owners of their work). While Wikipedia makes such an ideological commitment, it cannot be used by institutions that have made the decision to operate as expropriators of content, or even in cases wherein authors willingly allow someone else to take credit. If authors and owners must be identical, then either the author is identified as the owner, which is illegal in some cases, or the owner is identified as the author, a situation no academic is willing to submit to. + +The need for multiple roles also revealed other peculiar and troubling problems, such as the issue of giving an "identity" to long-dead authors whose works are out of copyright. So, for instance, a piece by A. E. Housman was included as a module for a class, and while it is clear that Housman is the author, the work is no longer under copyright, so Housman is no longer the copyright holder (nor is the society which published it in 1921). Yet Connexions requires that a copyright be attached to each module to allow it to be licensed openly. This particular case, of a dead author, necessitated two interesting interventions. Someone has to actually create an account for Housman and also issue the work as an "edition" or derivative under a new copyright. In this case, the two other authors are Scott McGill and Christopher Kelty. A curious question arose in this context: should we be listed both as authors and owners (and maintainers), or only as owners and maintainers? And if someone uses the module in a new context (as they have the right to do, ,{[pg 285]}, under the license), will they be required to give attribution only to Housman, or also to McGill and Kelty as well? What rights to ownership do McGill and Kelty have over the digital version of the public-domain text by Housman?~{ An even more technical feature concerned the issue of the order of authorship. The designers at first decided to allow Connexions to simply display the authors in alphabetical order, a practice adopted by some disciplines, like computer science. However, in the case of the Housman example this resulted in what looked like a module authored principally by me, and only secondarily by A. E. Housman. And without the ability to explicitly designate order of authorship, many disciplines had no way to express their conventions along these lines. As a result, the system was redesigned to allow users to designate the order of authorship as well. }~ +={Housman, A. E.;McGill, Scott;public domain:literary texts in} + +The discussion of roles circulated fluidly across concepts like law (and legal licenses), norms, community, and identity. Brent and Ross and others involved had developed sophisticated imaginations of how Connexions would fit into the existing ecology of academia, constrained all the while by both standard goals, like usability and efficiency, and by novel legal licenses and concerns about the changing practices of authors and scholars. The question, for instance, of how a module can be used (technically, legally) is often confused with, or difficult to disentangle from, how a module should be used (technically, legally, or, more generally, "socially"—with usage shaped by the community who uses it). In order to make sense of this, Connexions programmers and participants like myself are prone to using the language of custom and norm, and the figure of community, as in "the customary norms of a scholarly community." +={communities:norms and} + +2~ From Law and Technology to Norm +={communities:norms and+20} + +The meaning of publication in Connexions and the questions about roles and their proper legal status emerged from the core concern with reuse, which is the primary modulation of Free Software that Connexions carries out: the modulation of the meaning of source code to include textbook writing. What makes source code such a central component of Free Software is the manner in which it is shared and transformed, not the technical features of any particular language or program. So the modulation of source code to include textbooks is not just an attempt to make textbooks exact, algorithmic, or digital, but an experiment in sharing textbook writing in a similar fashion. +={coordination (component of Free Software):modulations of+9;sharing source code (component of Free Software):modulations of;modifiability+3} + +This modulation also affects the other components: it creates a demand for openness in textbook creation and circulation; it demands new kinds of copyright licenses (the Creative Commons licenses); and it affects the meaning of coordination among scholars, ranging from explicit forms of collaboration and co-creation to the entire spectrum of uses and reuses that scholars normally make of their ,{[pg 286]}, peers’ works. It is this modulation of coordination that leads to the second core concern of Connexions: that of the existence of "norms" of scholarly creation, use, reuse, publication, and circulation. +={copyleft licenses (component of Free Software):modulations of|derivative uses and+7;openness (component of Free Software):modulations of;norms:coordination and} + +Since software programmers and engineers are prone to thinking about things in concrete, practical, and detailed ways, discussions of creation, use, and circulation are rarely conducted at the level of philosophical abstraction. They are carried out on whiteboards, using diagrams. +={figuring out+3} + +The whiteboard diagram transcribed in figure 8 was precipitated by a fairly precise question: "When is the reuse of something in a module (or of an entire module) governed by ‘academic norms’ and when is it subject to the legal constraints of the licenses?" For someone to quote a piece of text from one module in another is considered normal practice and thus shouldn’t involve concerns about legal rights and duties to fork the module (create a new modified version, perhaps containing only the section cited, which is something legal licenses explicitly allow). But what if someone borrows, say, all of the equations in a module about information theory and uses them to illustrate a very different point in a different module. Does he or she have either a normal or a legal right to do so? Should the equations be cited? What should that citation look like? What if the equations are particularly hard to mark-up in the MathML language and therefore represent a significant investment in time on the part of the original author? Should the law govern this activity, or should norms? +={forking:in Connexions+16;norms:academic+5} + +{ 2bits_09_08-100.png }image ~[* Whiteboard diagram: the cascade of reuse in Connexions. Conception by Ross Reedstrom, Brent Hendricks, and Christopher Kelty. Transcribed in the author’s fieldnotes, 2003. ]~ + +There is a natural tendency among geeks to answer these questions solely with respect to the law; it is, after all, highly codified and seemingly authoritative on such issues. However, there is often no need to engage the law, because of the presumed consensus ("academic norms") about how to proceed, even if those norms conflict with the law. But these norms are nowhere codified, and this makes geeks (and, increasingly, academics themselves) uneasy. As in the case of a requirement of attribution, the constraints of a written license are perceived to be much more stable and reliable than those of culture, precisely because culture is what remains contested and contestable. So the idea of creating a new "version" of a text is easier to understand when it is clearly circumscribed as a legally defined "derivative work." The Connexions software was therefore implemented in such a way that the legal right to create a derived work (to fork a module) could be done with the press of ,{[pg 287]}, a button: a distinct module is automatically created, and it retains the name of the original author and the original owner, but now also includes the new author’s name as author and maintainer. That new author can proceed to make any number of changes. +={attribution:copyright licenses and} + +But is forking always necessary? What if the derivative work contains only a few spelling corrections and slightly updated information? Why not change the existing module (where such changes would be more akin to issuing a new edition), rather than create a legally defined derivative work? Why not simply suggest the changes to the original author? Why not collaborate? While a legal license gives people the right to do all of these things without ever consulting the person who licensed it, there may well be occasions ,{[pg 288]}, when it makes much more sense to ignore those rights in favor of other norms. The answers to these questions depend a great deal on the kind and the intent of the reuse. A refined version of the whiteboard diagram, depicted in figure 9, attempts to capture the various kinds of reuse and their intersection with laws, norms, and technologies. +={collaboration:forking vs.+3;Copyleft licenses (component of Free Software):forking and} + +{ 2bits_09_09-100.png }image ~[* Whiteboard diagram transformed: forms of reuse in Connexions. Conception by Christopher Kelty, 2004. ]~ + +The center of the diagram contains a list of different kinds of imaginable reuses, arrayed from least interventionist at the top to most interventionist at the bottom, and it implies that as the intended transformations become more drastic, the likelihood of collaboration with the original author decreases. The arrow on the left indicates the legal path from cultural norms to protected fair uses; the arrow on the right indicates the technical path from built-in legal constraints based on the licenses to software tools that make collaboration (according to presumed scholarly norms) easier than the alternative (exercising the legal right to make a derivative work). With the benefit of hindsight, it seems that the arrows on either side should actually be a circle that connect laws, technologies, and norms in a chain of influence and constraint, since it is clear in retrospect that the norms of authorial practice have actually changed (or at least have been made explicit) based on the existence of licenses and the types of tools available (such as blogs and Wikipedia). +={experimentation+1;Wikipedia (collaborative encyclopedia)} + +The diagram can best be understood as a way of representing, to Connexions itself (and its funders), the experiment under way with the components of Free Software. By modulating source code to include the writing of scholarly textbooks, Connexions made visible the need for new copyright licenses appropriate to this content; by making the system Internet-based and relying on open standards such as XML and Open Source components, Connexions also modulated the concept of openness to include textbook publication; and by making the system possible as an open repository of freely licensed textbook modules, Connexions made visible the changed conditions of coordination, not just between two collaborating authors, but within the entire system of publication, citation, use, reuse, borrowing, building on, plagiarizing, copying, emulating, and so on. Such changes to coordination may or may not take hold. For many scholars, they pose an immodest challenge to a working system that has developed over centuries, but for others they represent the removal of arbitrary constraints that prevent ,{[pg 289]}, novel and innovative forms of knowledge creation and association rendered possible in the last thirty to forty years (and especially in the last ten). For some, these modulations might form the basis for a final modulation—a Free Textbooks movement—but as yet no such movement exists. +={Extensible Mark-up Language (XML);movement (component of Free Software):modulations of+2} + +In the case of shared software source code, one of the principal reasons for sharing it was to reuse it: to build on it, to link to it, to employ it in ways that made building more complex objects into an easier task. The very design philosophy of UNIX well articulates the necessity of modularity and reuse, and the idea is no less powerful in other areas, such as textbooks. But just as the reuse of software is not simply a feature of software’s technical characteristics, the idea of "reusing" scholarly materials implies all kinds of questions that are not simply questions of recombining texts. The ability to share source code—and the ability to create complex software based on it—requires modulations of both the legal meaning of software, as in the case of EMACS, and the organizational form, as in the ,{[pg 290]}, emergence of Free Software projects other than the Free Software Foundation (the Linux kernel, Perl, Apache, etc.). +={Free Software Foundation+1;textbooks:model in Connexions+1} + +In the case of textbook reuse (but only after Free Software), the technical and the legal problems that Connexions addresses are relatively well specified: what software to use, whether to use XML, the need for an excellent user interface, and so on. However, the organizational, cultural, or practical meaning of reuse is not yet entirely clear (a point made by figures 8 and 9). In many ways, the recognition that there are cultural norms among academics mirrors the (re)discovery of norms and ethics among Free Software hackers.~{ I refer here to Eric Raymond’s "discovery" that hackers possess unstated norms that govern what they do, in addition to the legal licenses and technical practices they engage in (see Raymond, "Homesteading the Noosphere"). For a critique and background on hacker ethics and norms, see Coleman, "The Social Construction of Freedom." }~ But the label "cultural norms" is a mere catch-all for a problem that is probably better understood as a mixture of concrete technical, organizational, and legal questions and as more or less abstract social imaginaries through which a particular kind of material order is understood and pursued—the creation of a recursive public. How do programmers, lawyers, engineers, and Free Software advocates (and anthropologists) "figure out" how norms work? How do they figure out ways to operationalize or make use of them? How do they figure out how to change them? How do they figure out how to create new norms? They do so through the modulations of existing practices, guided by imaginaries of moral and technical order. Connexions does not tend toward becoming Free Software, but it does tend toward becoming a recursive public with respect to textbooks, education, and the publication of pedagogical techniques and knowledge. The problematic of creating an independent, autonomous public is thus the subterranean ground of both Free Software and Connexions. +={figuring out;norms:cultural|practices and technology vs.+8;practices:norms vs.+8;recursive public;public:autotelic and independent:see also recursive public} + +To some extent, then, the matter of reuse raises a host of questions about the borders and boundaries in and of academia. Brent, Ross, and I assumed at the outset that communities have both borders and norms, and that the two are related. But, as it turns out, this is not a safe assumption. At neither the technical nor the legal level is the use of the software restricted to academics—indeed, there is no feasible way to do that and still offer it on the Internet—nor does anyone involved wish it to be so restricted. However, there is an implicit sense that the people who will contribute content will primarily be academics and educators (just as Free Software participants are expected, but not required to be programmers). As figure 9 makes clear, there may well be tremendous variation in the kinds of reuse that people wish to make, even within academia. ,{[pg 291]}, Scholars in the humanities, for instance, are loath to even imagine others creating derivative works with articles they have written and can envision their work being used only in the conventional manner of being read, cited, and critiqued. Scholars in engineering, biology, or computer science, on the other hand, may well take pleasure in the idea or act of reuse, if it is adequately understood to be a "scientific result" or a suitably stable concept on which to build.~{ Bruno Latour’s Science in Action makes a strong case for the centrality of "black boxes" in science and engineering for precisely this reason. }~ Reuse can have a range of different meanings depending not only on whether it is used by scholars or academics, but within that heterogeneous group itself. +={Hendricks, Brent;Reedstrom, Ross;Copyleft licenses (component of Free Software):derivative uses and} + +The Connexions software does not, however, enforce disciplinary differences. If anything it makes very strong and troubling claims that knowledge is knowledge and that disciplinary constraints are arbitrary. Thus, for instance, if a biologist wishes to transform a literary scholar’s article on Darwin’s tropes to make it reflect current evolutionary theory, he or she could do so; it is entirely possible, both legally and technically. The literary scholar could react in a number of ways, including outrage that the biologist has misread or misunderstood the work or pleasure in seeing the work refined. Connexions adheres rigorously to its ideas of openness in this regard; it neither encourages nor censures such behavior. +={modifiability:relation of different disciplines to} + +By contrast, as figure 9 suggests, the relationship between these two scholars can be governed either by the legal specification of rights contained in the licenses (a privately ordered legal regime dependent on a national-cum-global statutory regime) or by the customary means of collaboration enabled, perhaps enhanced, by software tools. The former is the domain of the state, the legal profession, and a moral and technical order that, for lack of a better word, might be called modernity. The latter, however, is the domain of the cultural, the informal, the practical, the interpersonal; it is the domain of ethics (prior to its modernization, perhaps) and of tradition. +={modernity:tradition and+1;moral and technical order} + +If figure 9 is a recapitulation of modernity and tradition (what better role for an anthropologist to play!), then the presumptive boundaries around "communities" define which groups possess which norms. But the very design of Connexions—its technical and legal exactitude—immediately brings a potentially huge variety of traditions into conflict with one another. Can the biologist and the literary scholar be expected to occupy the same universe of norms? Does the fact of being academics, employees of a university, ,{[pg 292]}, or readers of Darwin ensure this sharing of norms? How are the boundaries policed and the norms communicated and reinforced? +={norms+4:existence of+4} + +The problem of reuse therefore raises a much broader and more complex question: do norms actually exist? In particular, do they exist independent of the particular technical, legal, or organizational practice in which groups of people exist—outside the coordinated infrastructure of scholarship and science? And if Connexions raises this question, can the same question not also be asked of the elaborate system of professions, disciplines, and organizations that coordinate the scholarship of different communities? Are these norms, or are they "technical" and "legal" practices? What difference does formalization make? What difference does bureaucratization make?~{ I should note, in my defense, that my efforts to get my informants to read Max Weber, Ferdinand Tönnies, Henry Maine, or Emile Durkheim ,{[pg 347]}, proved far less successful than my creation of nice Adobe Illustrator diagrams that made explicit the reemergence of issues addressed a century ago. It was not for lack of trying, however. }~ + +The question can also be posed this way: should norms be understood as historically changing constructs or as natural features of human behavior (regular patterns, or conventions, which emerge inevitably wherever human beings interact). Are they a feature of changing institutions, laws, and technologies, or do they form and persist in the same way wherever people congregate? Are norms features of a "calculative agency," as Michael Callon puts it, or are they features of the evolved human mind, as Marc Hauser argues?~{ Callon, The Laws of the Markets; Hauser, Moral Minds. }~ +={norms+4:evolution and+2} + +The answer that my informants give, in practice, concerning the mode of existence of cultural norms is neither. On the one hand, in the Connexions project the question of the mode of existence of academic norms is unanswered; the basic assumption is that certain actions are captured and constrained neither by legal constraints nor technical barriers, and that it takes people who know or study "communities" (i.e., nonlegal and nontechnical constraints) to figure out what those actions may be. On some days, the project is modestly understood to enable academics to do what they do faster and better, but without fundamentally changing anything about the practice, institutions, or legal relations; on other days, however, it is a radically transformative project, changing how people think about creating scholarly work, a project that requires educating people and potentially "changing the culture" of scholarly work, including its technology, its legal relations, and its practices. +={norms:cultural+1} + +In stark contrast (despite the very large degree of simpatico), the principal members of Creative Commons answer the question of the existence of norms quite differently than do those in Connexions: ,{[pg 293]}, they assert that norms not only change but are manipulated and/or channeled by the modulation of technical and legal practices (this is the novel version of law and economics that Creative Commons is founded on). Such an assertion leaves very little for norms or for culture; there may be a deep evolutionary role for rule following or for choosing socially sanctioned behavior over socially unacceptable behavior, but the real action happens in the legal and technical domains. In Creative Commons the question of the existence of norms is answered firmly in the phrase coined by Glenn Brown: "punt to culture." For Creative Commons, norms are a prelegal and pretechnical substrate upon which the licenses they create operate. Norms must exist for the strategy employed in the licenses to make sense—as the following story illustrates. +={Brown, Glen Otis;norms:channeling by legal means} + +2~ On the Nonexistence of Norms in the Culture of No Culture +={culture:punting to+24} + +More than once, I have found myself on the telephone with Glenn Brown, staring at notes, a diagram, or some inscrutable collection of legalese. Usually, the conversations wander from fine legal points to music and Texas politics to Glenn’s travels around the globe. They are often precipitated by some previous conversation and by Glenn’s need to remind himself (and me) what we are in the middle of creating. Or destroying. His are never simple questions. While the Connexions project started with a repository of scholarly content in need of a license, Creative Commons started with licenses in need of particular kinds of content. But both projects required participants to delve into the details of both licenses and the structure of digital content, which qualified me, for both projects, as the intermediary who could help explore these intersections. My phone conversations with Glenn, then, were much like the whiteboard conversations at Connexions: filled with a mix of technical and legal terminology, and conducted largely in order to give Glenn the sense that he had cross-checked his plans with someone presumed to know better. I can’t count the number of times I have hung up the phone or left the conference room wondering, "Have I just sanctioned something mad?" Yet rarely have I felt that my interventions served to do more than confirm suspicions or derail already unstable arguments. ,{[pg 294]}, +={Brown, Glen Otis+23} + +In one particular conversation—the "punt to culture" conversation—I found myself bewildered by a sudden understanding of the process of writing legal licenses and of the particular assumptions about human behavior that need to be present in order to imagine creating these licenses or ensuring that they will be beneficial to the people who will use them. + +These discussions (which often included other lawyers) happened in a kind of hypothetical space of legal imagination, a space highly structured by legal concepts, statutes, and precedents, and one extraordinarily carefully attuned to the fine details of semantics. A core aspect of operating within this imagination is the distinction between law as an abstract semantic entity and law as a practical fact that people may or may not deal with. To be sure, not all lawyers operate this way, but the warrant for thinking this way comes from no less eminent an authority than Oliver Wendell Holmes, for whom the "Path of Law" was always from practice to abstract rule, and not the reverse.~{ Oliver Wendell Holmes, "The Path of Law." }~ The opposition is unstable, but I highlight it here because it was frequently used as a strategy for constructing precise legal language. The ability to imagine the difference between an abstract rule designating legality and a rule encountered in practice was a first step toward seeing how the language of the rule should be constructed. +={Holmes, Oliver Wendell} + +I helped write, read, and think about the first of the Creative Commons licenses, and it was through this experience that I came to understand how the crafting of legal language works, and in particular how the mode of existence of cultural or social norms relates to the crafting of legal language. Creative Commons licenses are not a familiar legal entity, however. They are modulations of the Free Software license, but they differ in important ways. +={Copyleft licenses (component of Free Software):Creative Commons version+20;Creative Commons:writing of licenses+20;participant observation:writing copyright licenses as+20} + +The Creative Commons licenses allow authors to grant the use of their work in about a dozen different ways—that is, the license itself comes in versions. One can, for instance, require attribution, prohibit commercial exploitation, allow derivative or modified works to be made and circulated, or some combination of all these. These different combinations actually create different licenses, each of which grants intellectual-property rights under slightly different conditions. For example, say Marshall Sahlins decides to write a paper about how the Internet is cultural; he copyrights the paper ("© 2004 Marshall Sahlins"), he requires that any use of it or any copies of it maintain the copyright notice and the attribution of ,{[pg 295]}, authorship (these can be different), and he furthermore allows for commercial use of the paper. It would then be legal for a publishing house to take the paper off Sahlins’s Linux-based Web server and publish it in a collection without having to ask permission, as long as the paper remains unchanged and he is clearly and unambiguously listed as author of the paper. The publishing house would not get any rights to the work, and Sahlins would not get any royalties. If he had specified noncommercial use, the publisher would instead have needed to contact him and arrange for a separate license (Creative Commons licenses are nonexclusive), under which he could demand some share of revenue and his name on the cover of the book.~{ In December 2006 Creative Commons announced a set of licenses that facilitate the "follow up" licensing of a work, especially one initially issued under a noncommercial license. }~ But say he was, instead, a young scholar seeking only peer recognition and approbation—then royalties would be secondary to maximum circulation. Creative Commons allows authors to assert, as its members put it, "some rights reserved" or even "no rights reserved." +={intellectual property:strategy and+16;Sahlins, Marshall+2;Copyleft licenses (component of Free Software):derivative uses and+2|disavowal clause in+6;attribution:dissavowal of+6;credit+6:see also attribution} + +But what if Sahlins had chosen a license that allowed modification of his work. This would mean that I, Christopher Kelty, whether in agreement with or in objection to his work, could download the paper, rewrite large sections of it, add in my own baroque and idiosyncratic scholarship, and write a section that purports to debunk (or, what could amount to the same, augment) Sahlins’s arguments. I would then be legally entitled to re-release the paper as "© 2004 Marshall Sahlins, with modifications © 2007 Christopher Kelty," so long as Sahlins is identified as the author of the paper. The nature or extent of the modifications is not legally restricted, but both the original and the modified version would be legally attributed to Sahlins (even though he would own only the first paper). + +In the course of a number of e-mails, chat sessions, and phone conversations with Glenn, I raised this example and proposed that the licenses needed a way to account for it, since it seemed to me entirely possible that were I to produce a modified work that so distorted Sahlins’s original argument that he did not want to be associated with the modified paper, then he should have the right also to repudiate his identification as author. Sahlins should, legally speaking, be able to ask me to remove his name from all subsequent versions of my misrepresentation, thus clearing his good name and providing me the freedom to continue sullying mine into obscurity. After hashing it out with the expensive Palo Alto legal firm that was officially drafting the licenses, we came up with text that said: ,{[pg 296]}, "If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested." +={norms:academic+5} + +The bulk of our discussion centered around the need for the phrase, "to the extent practicable." Glenn asked me, "How is the original author supposed to monitor all the possible uses of her name? How will she enforce this clause? Isn’t it going to be difficult to remove the name from every copy?" Glenn was imagining a situation of strict adherence, one in which the presence of the name on the paper was the same as the reputation of the individual, regardless of who actually read it. On this theory, until all traces of the author’s name were expunged from each of these teratomata circulating in the world, there could be no peace, and no rest for the wronged. + +I paused, then gave the kind of sigh meant to imply that I had come to my hard-won understandings of culture through arduous dissertation research: "It probably won’t need to be strictly enforced in all cases—only in the significant ones. Scholars tend to respond to each other only in very circumscribed cases, by writing letters to the editor or by sending responses or rebuttals to the journal that published the work. It takes a lot of work to really police a reputation, and it differs from discipline to discipline. Sometimes, drastic action might be needed, usually not. There is so much misuse and abuse of people’s arguments and work going on all the time that people only react when they are directly confronted with serious abuses. And even so, it is only in cases of negative criticism or misuse that people need respond. When a scholar uses someone’s work approvingly, but incorrectly, it is usually considered petulant (at best) to correct them publicly." + +"In short," I said, leaning back in my chair and acting the part of expert, "it’s like, you know, c’mon—it isn’t all law, there are a bunch of, you know, informal rules of civility and stuff that govern that sort of thing." + +Then Glenn said., "Oh, okay, well that’s when we punt to culture." + +When I heard this phrase, I leaned too far back and fell over, joyfully stunned. Glenn had managed to capture what no amount of fieldwork, with however many subjects, could have. Some combination of American football, a twist of Hobbes or Holmes, and a lived understanding of what exactly these copyright licenses are ,{[pg 297]}, meant to achieve gave this phrase a luminosity I usually associate only with Balinese cock-fights. It encapsulated, almost as a slogan, a very precise explanation of what Creative Commons had undertaken. It was not a theory Glenn proposed with this phrase, but a strategy in which a particular, if vague, theory of culture played a role. +={culture:Creative Commons version of+12} + +For those unfamiliar, a bit of background on U.S. football may help. When two teams square off on the football field, the offensive team gets four attempts, called "downs," to move the ball either ten yards forward or into the end zone for a score. The first three downs usually involve one of two strategies: run or pass, run or pass. On the fourth down, however, the offensive team must either "go for it" (run or pass), kick a field goal (if close enough to the end zone), or "punt" the ball to the other team. Punting is a somewhat disappointing option, because it means giving up possession of the ball to the other team, but it has the advantage of putting the other team as far back on the playing field as possible, thus decreasing its likelihood of scoring. + +To "punt to culture," then, suggests that copyright licenses try three times to legally restrict what a user or consumer of a work can make of it. By using the existing federal intellectual-property laws and the rules of license and contract writing, copyright licenses articulate to people what they can and cannot do with that work according to law. While the licenses do not (they cannot) force people, in any tangible sense, to do one thing or another, they can use the language of law and contract to warn people, and perhaps obliquely, to threaten them. If the licenses end up silent on a point—if there is no "score," to continue the analogy—then it’s time to punt to culture. Rather than make more law, or call in the police, the license strategy relies on culture to fill in the gaps with people’s own understandings of what is right and wrong, beyond the law. It operationalizes a theory of culture, a theory that emphasizes the sovereignty of nonstate customs and the diversity of systems of cultural norms. Creative Commons would prefer that its licenses remain legally minimalist. It would much prefer to assume—indeed, the licenses implicitly require—the robust, powerful existence of this multifarious, hetero-physiognomic, and formidable opponent to the law with neither uniform nor mascot, hunched at the far end of the field, preparing to, so to speak, clean law’s clock. ,{[pg 298]}, +={norms:cultural} + +Creative Commons’s "culture" thus seems to be a somewhat vague mixture of many familiar theories. Culture is an unspecified but finely articulated set of given, evolved, designed, informal, practiced, habitual, local, social, civil, or historical norms that are expected to govern the behavior of individuals in the absence of a state, a court, a king, or a police force, at one of any number of scales. It is not monolithic (indeed, my self-assured explanation concerned only the norms of "academia"), but assumes a diversity beyond enumeration. It employs elements of relativism—any culture should be able to trump the legal rules. It is not a hereditary biological theory, but one that assumes historical contingency and arbitrary structures. +={norms:channeling by legal means+6} + +Certainly, whatever culture is, it is separate from law. Law is, to borrow Sharon Traweek’s famous phrase, "a culture of no culture" in this sense. It is not the cultural and normative practices of legal scholars, judges, lawyers, legislators, and lobbyists that determine what laws will look like, but their careful, expert, noncultural ratiocination. In this sense, punting to culture implies that laws are the result of human design, whereas culture is the result of human action, but not of human design. Law is systematic and tractable; culture may have a deep structure, but it is intractable to human design. It can, however, be channeled and tracked, nudged or guided, by law. +={Traweek, Sharon;culture:law vs.+3} + +Thus, Lawrence Lessig, one of the founders of Creative Commons has written extensively about the "regulation of social meaning," using cases such as those involving the use or nonuse of seatbelts or whether or not to allow smoking in public places. The decision not to wear a seatbelt, for instance, may have much more to do with the contextual meaning of putting on a seatbelt (don’t you trust the cab driver?) than with either the existence of the seatbelt (or automatic seatbelts, for that matter) or with laws demanding their use. According to Lessig, the best law can do in the face of custom is to change the meaning of wearing the seatbelt: to give the refusal a dishonorable rather than an honorable meaning. Creative Commons licenses are based on a similar assumption: the law is relatively powerless in the face of entrenched academic or artistic customs, and so the best the licenses can do is channel the meaning of sharing and reuse, of copyright control or infringement. As Glenn explained in the context of a discussion about a license that would allow music sampling. ,{[pg 299]}, +={Lessig, Lawrence:law and economics and;meaning, regulation through law;music+3;sampling, musical+3} + +_1 We anticipate that the phrase "as appropriate to the medium, genre, and market niche" might prompt some anxiety, as it leaves things relatively undefined. But there’s more method here than you might expect: The definition of "sampling" or "collage" varies across different media. Rather than try to define all possible scenarios (including ones that haven’t happened yet)—which would have the effect of restricting the types of re-uses to a limited set—we took the more laissez faire approach. + +_1 This sort of deference to community values—think of it as "punting to culture"—is very common in everyday business and contract law. The idea is that when lawyers have trouble defining the specialized terms of certain subcultures, they should get out of the way and let those subcultures work them out. It’s probably not a surprise Creative Commons likes this sort of notion a lot.~{ Message from the cc-sampling mailing list, Glenn Brown, Subject: BACKGROUND: "AS APPROPRIATE TO THE MEDIUM, GENRE, AND MARKET NICHE," 23 May 2003, http://lists.ibiblio.org/pipermail/cc-sampling/2003-May/000004.html. }~ + +As in the case of reuse in Connexions, sampling in the music world can imply a number of different, perhaps overlapping, customary meanings of what is acceptable and what is not. For Connexions, the trick was to differentiate the cases wherein collaboration should be encouraged from the cases wherein the legal right to "sample"—to fork or to create a derived work—was the appropriate course of action. For Creative Commons, the very structure of the licenses attempts to capture this distinction as such and to allow for individuals to make determinations about the meaning of sampling themselves.~{ Sampling offers a particularly clear example of how Creative Commons differs from the existing practice and infrastructure of music creation and intellectual-property law. The music industry has actually long recognized the fact of sampling as something musicians do and has attempted to deal with it by making it an explicit economic practice; the music industry thus encourages sampling by facilitating the sale between labels and artists of rights to make a sample. Record companies will negotiate prices, lengths, quality, and quantity of sampling and settle on a price.
This practice is set opposite the assumption, also codified in law, that the public has a right to a fair use of copyrighted material without payment or permission. Sampling a piece of music might seem to fall into this category of use, except that one of the tests of fair use is that the use not impact any existing market for such uses, and the fact that the music industry has effectively created a market for the buying and selling of samples means that sampling now routinely falls outside the fair uses codified in the statute, thus removing sampling from the domain of fair use. Creative Commons licenses, on the other hand, say that owners should be able to designate their material as "sample-able," to give permission ahead of time, and by this practice to encourage others to do the same. They give an "honorable" meaning to the practice of sampling for free, rather than the dishonorable one created by the industry. It thus becomes a war over the meaning of norms, in the law-and-economics language of Creative Commons and its founders. }~ + +At stake, then, is the construction of both technologies and legal licenses that, as Brent and Rich would assert, "make it easy for users to do the right thing." The "right thing," however, is precisely what goes unstated: the moral and technical order that guides the design of both licenses and tools. Connexions users are given tools that facilitate citation, acknowledgment, attribution, and certain kinds of reuse instead of tools that privilege anonymity or facilitate proliferation or encourage nonreciprocal collaborations. By the same token, Creative Commons licenses, while legally binding, are created with the aim of changing norms: they promote attribution and citation; they promote fair use and clearly designated uses; they are written to give users flexibility to decide what kinds of things should be allowed and what kinds shouldn’t. Without a doubt, the "right thing" is right for some people and not for others—and it is thus political. But the criteria for what is right are not ,{[pg 300]}, merely political; the criteria are what constitute the affinity of these geeks in the first place, what makes them a recursive public. They see in these instruments the possibility for the creation of authentic publics whose role is to stand outside power, outside markets, and to participate in sovereignty, and through this participation to produce liberty without sacrificing stability. +={Baraniuk, Richard;Hendricks, Brent;affinity (of geeks);fair use;moral and technical order;recursive public} + +2~ Conclusion + +What happens when geeks modulate the practices that make up Free Software? What is the intuition or the cultural significance of Free Software that makes people want to emulate and modulate it? Creative Commons and Connexions modulate the practices of Free Software and extend them in new ways. They change the meaning of shared source code to include shared nonsoftware, and they try to apply the practices of license writing, coordination, and openness to new domains. At one level, such an activity is fascinating simply because of what it reveals: in the case of Connexions, it reveals the problem of determining the finality of a work. How should the authority, stability, and reliability of knowledge be assessed when work can be rendered permanently modifiable? It is an activity that reveals the complexity of the system of authorization and evaluation that has been built in the past. + +The intuition that Connexions and Creative Commons draw from Free Software is an intuition about the authority of knowledge, about a reorientation of knowledge and power that demands a response. That response needs to be technical and legal, to be sure, but it also needs to be public—a response that defines the meaning of finality publicly and openly and makes modifiability an irreversible aspect of the process of stabilizing knowledge. Such a commitment is incompatible with the provision of stable knowledge by unaccountable private parties, whether individuals or corporations or governments, or by technical fiat. There must always remain the possibility that someone can question, change, reuse, and modify according to their needs. + +1~conclusion Conclusion + +% ,{[pg 301]}, + +2~ The Cultural Consequences of Free Software + +Free Software is changing. In all aspects it looks very different from when I started, and in many ways the Free Software described herein is not the Free Software readers will encounter if they turn to the Internet to find it. But how could it be otherwise? If the argument I make in Two Bits is at all correct, then modulation must constantly be occurring, for experimentation never seeks its own conclusion. A question remains, though: in changing, does Free Software and its kin preserve the imagination of moral and technical order that created it? Is the recursive public something that survives, orders, or makes sense of these changes? Does Free Software exist for more than its own sake? +={modulation:of Free Software+5;moral and technical order} + +In Two Bits I have explored not only the history of Free Software but also the question of where such future changes will have come ,{[pg 302]}, from. I argue for seeing continuity in certain practices of everyday life precisely because the Internet and Free Software pervade everyday life to a remarkable, and growing, degree. Every day, from here to there, new projects and ideas and tools and goals emerge everywhere out of the practices that I trace through Free Software: Connexions and Creative Commons, open access, Open Source synthetic biology, free culture, access to knowledge (a2k), open cola, open movies, science commons, open business, Open Source yoga, Open Source democracy, open educational resources, the One Laptop Per Child project, to say nothing of the proliferation of wiki-everything or the "peer production" of scientific data or consumer services—all new responses to a widely felt reorientation of knowledge and power.~{ See http://cnx.org, http://www.creativecommons.org, http://www.earlham.edu/~peters/fos/overview.htm, http://www.biobricks.org, http://www.freebeer.org, http://freeculture.org, http://www.cptech.org/a2k, ,{[pg 348]}, http://www.colawp.com/colas/400/cola467_recipe.html, http://www.elephantsdream.org, http://www.sciencecommons.org, http://www.plos.org, http://www.openbusiness.cc, http://www.yogaunity.org, http://osdproject.com, http://www.hewlett.org/Programs/Education/oer/, and http://olpc.com. }~ How is one to know the difference between all these things? How is one to understand the cultural significance and consequence of them? Can one distinguish between projects that promote a form of public sphere that can direct the actions of our society versus those that favor corporate, individual, or hierarchical control over decision making? +={practices+2:five components of Free Software+2;public+5:see also recursive public+5;reorientation of power and knowledge+19} + +Often the first response to such emerging projects is to focus on the promises and ideology of the people involved. On the one hand, claiming to be open or free or public or democratic is something nearly everyone does (including unlikely candidates such as the defense intelligence agencies of the United States), and one should therefore be suspicious and critical of all such claims.~{ See Clive Thompson, "Open Source Spying," New York Times Magazine, 3 December 2006, 54. }~ While such arguments and ideological claims are important, it would be a grave mistake to focus only on these statements. The "movement"—the ideological, critical, or promissory aspect—is just one component of Free Software and, indeed, the one that has come last, after the other practices were figured out and made legible, replicable, and modifiable. On the other hand, it is easy for geeks and Free Software advocates to denounce emerging projects, to say, "But that isn’t really Open Source or Free Software." And while it may be tempting to fix the definition of Free Software once and for all in order to ensure a clear dividing line between the true sons and the carpetbaggers, to do so would reduce Free Software to mere repetition without difference, would sacrifice its most powerful and distinctive attribute: its responsive, emergent, public character. + +But what questions should one ask? Where should scholars or curious onlookers focus their attention in order to see whether or not a recursive public is at work? Many of these questions are simple, ,{[pg 303]}, practical ones: are software and networks involved at any level? Do the participants claim to understand Free Software or Open Source, either in their details or as an inspiration? Is intellectual-property law a key problem? Are participants trying to coordinate each other through the Internet, and are they trying to take advantage of voluntary, self-directed contributions of some kind? More specifically, are participants modulating one of these practices? Are they thinking about something in terms of source code, or source and binary? Are they changing or creating new forms of licenses, contracts, or privately ordered legal arrangements? Are they experimenting with forms of coordinating the voluntary actions of large numbers of unevenly distributed people? Are the people who are contributing aware of or actively pursuing questions of ideology, distinction, movement, or opposition? Are these practices recognized as something that creates the possibility for affinity, rather than simply arcane "technical" practices that are too complex to understand or appreciate? +={affinity (of geeks)+2} + +In the last few years, talk of "social software" or "Web 2.0" has dominated the circuit of geek and entrepreneur conferences and discussions: Wikipedia, MySpace, Flickr, and YouTube, for example. For instance, there are scores and scores of "social" music sites, with collaborative rating, music sharing, music discovery, and so forth. Many of these directly use or take inspiration from Free Software. For all of them, intellectual property is a central and dominating concern. Key to their novelty is the leveraging and coordinating of massive numbers of people along restricted lines (i.e., music preferences that guide music discovery). Some even advocate or lobby for free(er) access to digital music. But they are not (yet) what I would identify as recursive publics: most of them are commercial entities whose structure and technical specifications are closely guarded and not open to modification. While some such entities may deal in freely licensed content (for instance, Creative Commons-licensed music), few are interested in allowing strangers to participate in, modulate, or modify the system as such; they are interested in allowing users to become consumers in more and more sophisticated ways, and not necessarily in facilitating a public culture of music. They want information and knowledge to be free, to be sure, but not necessarily the infrastructure that makes that information available and knowledge possible. Such entities lack the "recursive" commitment. ,{[pg 304]}, +={music:recursive public and} + +By contrast, some corners of the open-access movement are more likely to meet this criteria. As the appellation suggests, participants see it as a movement, not a corporate or state entity, a movement founded on practices of copyleft and the modulation of Free Software licensing ideas. The use of scientific data and the tools for making sense of open access are very often at the heart of controversy in science (a point often reiterated by science and technology studies), and so there is often an argument about not only the availability of data but its reuse, modification, and modulation as well. Projects like the BioBricks Foundation (biobricks.org) and new organizations like the Public Library of Science (plos.org) are committed to both availability and certain forms of collective modification. The commitment to becoming a recursive public, however, raises unprecedented issues about the nature of quality, reliability, and finality of scientific data and results—questions that will reverberate throughout the sciences as a result. +={movement (component of Free Software):modulations of;open access:recursive public and} + +Farther afield, questions of "traditional heritage" claims, the compulsory licensing of pharmaceuticals, or new forms of "crowdsourcing" in labor markets are also open to analysis in the terms I offer in Two Bits.~{ See especially Christen, "Tracking Properness" and "Gone Digital"; Brown, Who Owns Native Culture? and "Heritage as Property." Crowdsourcing fits into other novel forms of labor arrangements, ranging from conventional outsourcing and off-shoring to newer forms of bodyshopping and "virtual migration" (see Aneesh, Virtual Migration; Xiang, "Global Bodyshopping" ). }~ Virtual worlds like Second Life, "a 3D digital world imagined, created, and owned by its residents," are increasingly laboratories for precisely the kinds of questions raised here: such worlds are far less virtual than most people realize, and the experiments conducted there far more likely to migrate into the so-called real world before we know it—including both economic and democratic experiments.~{ Golub, "Copyright and Taboo"; Dibbell, Play Money. }~ How far will Second Life go in facilitating a recursive public sphere? Can it survive both as a corporation and as a "world"? And of course, there is the question of the "blogosphere" as a public sphere, as a space of opinion and discussion that is radically open to the voices of massive numbers of people. Blogging gives the lie to conventional journalism’s self-image as the public sphere, but it is by no means immune to the same kinds of problematic dynamics and polarizations, no more "rational-critical" than FOX News, and yet . . . +={blogosphere, as recursive public;Second Life, as recursive public} + +Such examples should indicate the degree to which Two Bits is focused on a much longer time span than simply the last couple of years and on much broader issues of political legitimacy and cultural change. Rather than offer immediate policy prescriptions or seek to change the way people think about an issue, I have approached ,{[pg 305]}, Two Bits as a work of history and anthropology, making it less immediately applicable in the hopes that it is more lastingly usable. The stories I have told reach back at least forty years, if not longer. While it is clear that the Internet as most people know it is only ten to fifteen years old, it has been "in preparation" since at least the late 1950s. Students in my classes—especially hip geeks deep in Free Software apprenticeship—are bewildered to learn that the arguments and usable pasts they are rehearsing are refinements and riffs on stories that are as old or older than their parents. This deeper stability is where the cultural significance of Free Software lies: what difference does Free Software today introduce with respect to knowledge and power yesterday? +={cultural significance;legitimacy, circulation of knowledge and+6} + +Free Software is a response to a problem, in much the same way that the Royal Society in the sixteenth century, the emergence of a publishing industry in the eighteenth century, and the institutions of the public sphere in the eighteenth and nineteenth centuries were responses. They responded to the collective challenge of creating regimes of governance that required—and encouraged—reliable empirical knowledge as a basis for their political legitimacy. Such political legitimacy is not an eternal or theoretical problem; it is a problem of constant real-world practice in creating the infrastructures by which individuals come to inhabit and understand their own governance, whether by states, corporations, or machines. If power seeks consent of the governed—and especially the consent of the democratic, self-governing kind that has become the global dominant ideal since the seventeenth century—it must also seek to ensure the stability and reliability of the knowledge on which that consent is propped. +={public sphere:recursive public vs.+4:see also public, recursive public+4} + +Debates about the nature and history of publics and public spheres have served as one of the main arenas for this kind of questioning, but, as I hope I have shown here, it is a question not only of public spheres but of practices, technologies, laws, and movements, of going concerns which undergo modulation and experimentation in accord with a social imagination of order both moral and technical. "Recursive public" as a concept is not meant to replace that of public sphere. I intend neither for actors nor really for many scholars to find it generally applicable. I would not want to see it suddenly discovered everywhere, but principally in tracking the transformation, proliferation, and differentiation of Free Software and its derivatives. ,{[pg 306]}, +={social imaginary} + +Several threads from the three parts of Two Bits can now be tied together. The detailed descriptions of Free Software and its modulations should make clear that (1) the reason the Internet looks the way it does is due to the work of figuring out Free Software, both before and after it was recognized as such; (2) neither the Internet nor the computer is the cause of a reorientation of knowledge and power, but both are tools that render possible modulations of settled practices, modulations that reveal a much older problem regarding the legitimacy of the means of circulation and production of knowledge; (3) Free Software is not an ethical stance, but a practical response to the revelation of these older problems; and (4) the best way to understand this response is to see it as a kind of public sphere, a recursive public that is specific to the technical and moral imaginations of order in the contemporary world of geeks. +={figuring out} + +It is possible now to return to the practical and political meaning of the "singularity" of the Internet, that is, to the fact that there is only one Internet. This does not mean that there are no other networks, but only that the Internet is a singular entity and not an instance of a general type. How is it that the Internet is open in the same way to everyone, whether an individual or a corporate or a national entity? How has it become extensible (and, by extension, defensible) by and to everyone, regardless of their identity, locale, context, or degree of power? +={Internet:singularity of+7} + +The singularity of the Internet is both an ontological and an epistemological fact; it is a feature of the Internet’s technical configurations and modes of ordering the actions of humans and machines by protocols and software. But it is also a feature of the technical and moral imaginations of the people who build, manage, inhabit, and expand the Internet. Ontologically, the creation and dissemination of standardized protocols, and novel standard-setting processes are at the heart of the story. In the case of the Internet, differences in standards-setting processes are revealed clearly in the form of the famous Request for Comments system of creating, distributing, and modifying Internet protocols. The RFC system, just as much as the Geneva-based International Organization for Standards, reveal the fault lines of international legitimacy in complex societies dependent on networks, software, and other high-tech forms of knowledge production, organization, and governance. The legitimacy of standards has massive significance for the abilities of individual actors to participate in their own recursive publics, whether they ,{[pg 307]}, be publics that address software and networks or those that address education and development. But like the relationship between "law on the books" and "law in action," standards depend on the coordinated action and order of human practices. +={International Organization for Standardization (ISO);Request for Comments (RFC);standards processes+1;standards+1} + +What’s more, the seemingly obvious line between a legitimate standard and a marketable product based on these standards causes nothing but trouble. The case of open systems in the 1980s high-end computer industry demonstrates how the logic of standardization is not at all clearly distinguished from the logic of the market. The open-systems battles resulted in novel forms of cooperation-within-competition that sought both standardization and competitive advantage at the same time. Open systems was an attempt to achieve a kind of "singularity," not only for a network but for a market infrastructure as well. Open systems sought ways to reform technologies and markets in tandem. What it ignored was the legal structure of intellectual property. The failure of open systems reveals the centrality of the moral and technical order of intellectual property—to both technology and markets—and shows how a reliance on this imagination of order literally renders impossible the standardization of singular market infrastructure. By contrast, the success of the Internet as a market infrastructure and as a singular entity comes in part because of the recognition of the limitations of the intellectual-property system—and Free Software in the 1990s was the main experimental arena for trying out alternatives. +={collaboration:competition vs.;intellectual property+3;moral and technical order+5;Open Systems+3} + +The singularity of the Internet rests in turn on a counterintuitive multiplicity: the multiplicity of the UNIX operating system and its thousands of versions and imitations and reimplementations. UNIX is a great example of how novel, unexpected kinds of order can emerge from high-tech practices. UNIX is neither an academic (gift) nor a market phenomenon; it is a hybrid model of sharing that emerged from a very unusual technical and legal context. UNIX demonstrates how structured practices of sharing produce their own kind of order. Contrary to the current scholarly consensus that Free Software and its derivatives are a kind of "shadow economy" (a "sharing" economy, a "peer production" economy, a "noncommercial" economy), UNIX was never entirely outside of the mainstream market. The meanings of sharing, distribution, and profitability are related to the specific technical, legal, and organizational context. Because AT&T was prevented from commercializing UNIX, because UNIX users were keen to expand and ,{[pg 308]}, adapt it for their own uses, and because its developers were keen to encourage and assist in such adaptations, UNIX proliferated and differentiated in ways that few commercial products could have. But it was never "free" in any sense. Rather, in combination with open systems, it set the stage for what "free" could come to mean in the 1980s and 1990s. It was a nascent recursive public, confronting the technical and legal challenges that would come to define the practices of Free Software. To suggest that it represents some kind of "outside" to a functioning economic market based in money is to misperceive how transformative of markets UNIX and the Internet (and Free Software) have been. They have initiated an imagination of moral and technical order that is not at all opposed to ideologies of market-based governance. Indeed, if anything, what UNIX and Free Software represent is an imagination of how to change an entire market-based governance structure—not just specific markets in things—to include a form of public sphere, a check on the power of existing authority. +={AT&T;peer production;UNIX operating system:allegiance to versions of;proliferation of software} + +UNIX and Open Systems should thus be seen as early stages of a collective technical experiment in transforming our imaginations of order, especially of the moral order of publics, markets, and self-governing peoples. The continuities and the gradualness of the change are more apparent in these events than any sudden rupture or discontinuity that the "invention of the Internet" or the passing of new intellectual-property laws might suggest. The "reorientation of knowledge and power" is more dance than earthquake; it is stratified in time, complex in its movements, and takes an experimental form whose concrete traces are the networks, infrastructures, machines, laws, and standards left in the wake of the experiments. +={availability:reorientation of power knowledge and+5;experiment, collective technical+3;infrastructure} + +Availability, reusability, and modifiability are at the heart of this reorientation. The experiments of UNIX and open systems would have come to nothing if they had not also prompted a concurrent experimentation with intellectual-property law, of which the copyleft license is the central and key variable. Richard Stallman’s creation of GNU EMACS and the controversy over propriety that it engendered was in many ways an attempt to deal with exactly the same problem that UNIX vendors and open-systems advocates faced: how to build extensibility into the software market—except that Stallman never saw it as a market. For him, software was and is part of the human itself, constitutive of our very freedom and, hence, inalienable. Extending software, through collective mutual ,{[pg 309]}, aid, is thus tantamount to vitality, progress, and self-actualization. But even for those who insist on seeing software as mere product, the problem of extensibility remains. Standardization, standards processes, and market entry all appear as political problems as soon as extensibility is denied—and thus the legal solution represented by copyleft appears as an option, even though it raises new and troubling questions about the nature of competition and profitability. +={Stallman, Richard;EMACS (text editor):controversy about;modifiability+4;Copyleft licenses (component of Free Software)} + +New questions about competition and profitability have emerged from the massive proliferation of hybrid commercial and academic forms, forms that bring with them different traditions of sharing, credit, reputation, control, creation, and dissemination of knowledge and products that require it. The new economic demands on the university—all too easily labeled neoliberalization or corporatization—mirror changing demands on industry that it come to look more like universities, that is, that it give away more, circulate more, and cooperate more. The development of UNIX, in its details, is a symptom of these changes, and the success of Free Software is an unambiguous witness to them. +={credit:see also attribution} + +The proliferation of hybrid commercial-academic forms in an era of modifiability and reusability, among the debris of standards, standards processes, and new experiments in intellectual property, results in a playing field with a thousand different games, all of which revolve around renewed experimentation with coordination, collaboration, adaptability, design, evolution, gaming, playing, worlds, and worlding. These games are indicative of the triumph of the American love of entrepreneurialism and experimentalism; they relinquish the ideals of planning and hierarchy almost absolutely in favor of a kind of embedded, technically and legally complex anarchism. It is here that the idea of a public reemerges: the ambivalence between relinquishing control absolutely and absolute distrust of government by the few. A powerful public is a response, and a solution, so long as it remains fundamentally independent of control by the few. Hence, a commitment, widespread and growing, to a recursive public, an attempt to maintain and extend the kinds of independent, authentic, autotelic public spheres that people encounter when they come to an understanding of how Free Software and the Internet have evolved. +={anarchism;entrepreneurialism} + +The open-access movement, and examples like Connexions, are attempts at maintaining such publics. Some are conceived as bulwarks ,{[pg 310]}, against encroaching corporatization, while others see themselves as novel and innovative, but most share some of the practices hashed out in the evolution of Free Software and the Internet. In terms of scholarly publishing and open access, the movement has reignited discussions of ethics, norms, and method. The Mertonian ideals are in place once more, this time less as facts of scientific method than as goals. The problem of stabilizing collective knowledge has moved from being an inherent feature of science to being a problem that needs our attention. The reorientation of knowledge and power and the proliferation of hybrid commercial-academic entities in an era of massive dependence on scientific knowledge and information leads to a question about the stabilization of that knowledge. +={Merton, Robert:Mertonian norms} + +Understanding how Free Software works and how it has developed along with the Internet and certain practices of legal and cultural critique may be essential to understanding the reliable foundation of knowledge production and circulation on which we still seek to ground legitimate forms of governance. Without Free Software, the only response to the continuing forms of excess we associate with illegitimate, unaccountable, unjust forms of governance might just be mute cynicism. With it, we are in possession of a range of practical tools, structured responses and clever ways of working through our complexity toward the promises of a shared imagination of legitimate and just governance. There is no doubt room for critique—and many scholars will demand it—but scholarly critique will have to learn how to sit, easily or uneasily, with Free Software as critique. Free Software can also exclude, just as any public or public sphere can, but this is not, I think, cause for resistance, but cause for joining. The alternative would be to create no new rules, no new practices, no new procedures—that is, to have what we already have. Free Software does not belong to geeks, and it is not the only form of becoming public, but it is one that will have a profound structuring effect on any forms that follow. + +:B~ Bibliography + +1~bibliography Bibliography + +% ,{[pg 349]}, + +Abbate, Janet. Inventing the Internet. 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A much earlier version of chapter 1 was published as "Geeks, Social Imaginaries and Recursive Publics," Cultural Anthropology 20.2 (summer 2005); chapter 6 as "The EMACS Controversy," in Mario Biagioli, Martha Woodmansee, and Peter Jaszi, eds., Contexts of Invention (forthcoming); and parts of chapter 9 as "Punt to Culture," Anthropological Quarterly 77.3. + +:B~ Library of Congress + +1~loc Library of Congress Catalog + +% ,{[pg 380]}, + +group{ + +christopher m. kelty +is an assistant professor of anthropology +at Rice University. + +Library of Congress Cataloging-in-Publication Data +Kelty, Christopher M. + +Two bits : the cultural significance of free software / Christopher M. Kelty. p. cm. --(Experimental futures) +Includes bibliographical references and index. +ISBN-13: 978-0-8223-4242-7 (cloth : alk. paper) +ISBN-13: 978-0-8223-4264-9 (pbk. : alk. paper) +1. Information society. 2. Open source software—Social aspects. I. Title. +HM851K45 2008 +303.48'33—dc22 2007049447 + +}group + +% errata? text uses Leitl, Eugen index uses Leitl, Eugene diff --git a/data/v3/samples/un_contracts_international_sale_of_goods_convention_1980.sst b/data/v3/samples/un_contracts_international_sale_of_goods_convention_1980.sst new file mode 100644 index 0000000..392f21f --- /dev/null +++ b/data/v3/samples/un_contracts_international_sale_of_goods_convention_1980.sst @@ -0,0 +1,786 @@ +% SiSU 2.0 + +@title: United Nations Convention On Contracts For The International Sale Of Goods, 1980 (CISG) + +@creator: + :author: United Nations + :url: http://www.un.org/ + +@original: + :source: UNCITRAL, United Nations + +@classify: + :subject: UNCITRAL, United Nations, sale of goods + :topic_register: SiSU:markup sample:convention;law:international:uniform law|sales law|CISG;CISG + :keywords: UNCITRAL, United Nations, sale of goods + :type: convention, international sales, sale of goods, UNCITRAL, United Nations + +@date: + :published: 1980 + +@make: + :headings: PART; Chapter; Section; Article; + :skin: skin_sisu + :breaks: new=:A,:B; break=:C + +@links: { Syntax }http://www.jus.uio.no/sisu/sample/syntax/un_contracts_international_sale_of_goods_convention_1980.sst.html + +:A~ United Nations Convention On Contracts For The International Sale Of Goods, 1980 (CISG) + +1~pre [Preamble]-# + +THE STATES PARTIES TO THIS CONVENTION, + +BEARING IN MIND the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New International Economic Order, + +CONSIDERING that the development of international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States, + +BEING OF THE OPINION that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade, + +HAVE DECREED as follows: + +PART I - Sphere of Application and General Provisions + +Chapter I - Sphere of Application + +Article 1 + +(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: + +(a) when the States are Contracting States; or + +(b) when the rules of private international law lead to the application of the law of a Contracting State. + +(2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. + +(3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. + +Article 2 + +This Convention does not apply to sales: + +(a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use; + +(b) by auction; + +(c) on execution or otherwise by authority of law; + +(d) of stocks, shares, investment securities, negotiable instruments or money; + +(e) of ships, vessels, hovercraft or aircraft; + +(f) of electricity. + +Article 3 + +(1) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. + +(2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services. + +Article 4 + +This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with: + +(a) the validity of the contract or of any of its provisions or of any usage; + +(b) the effect which the contract may have on the property in the goods sold. + +Article 5 + +This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person. + +Article 6 + +The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions. + +Chapter II - General Provisions + +Article 7 + +(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. + +(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law. + +Article 8 + +(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was. + +(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. + +(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties. + +Article 9 + +(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. + +(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. + +Article 10 + +For the purposes of this Convention: + +(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract; + +(b) if a party does not have a place of business, reference is to be made to his habitual residence. + +Article 11 + +A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses. + +Article 12 + +Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect or this article. + +Article 13 + +For the purposes of this Convention "writing" includes telegram and telex. + +PART II - Formation of the Contract + +Article 14 + +(1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. + +(2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal. + +Article 15 + +(1) An offer becomes effective when it reaches the offeree. + +(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. + +Article 16 + +(1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. + +(2) However, an offer cannot be revoked: + +(a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or + +(b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. + +Article 17 + +An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror. + +Article 18 + +(1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance. + +(2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise. + +(3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph. + +Article 19 + +(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. + +(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. + +(3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. + +Article 20 + +(1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree. + +(2) Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day which follows. + +Article 21 + +(1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect. + +(2) If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. + +Article 22 + +An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective. + +Article 23 + +A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention. + +Article 24 + +For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention "reaches" the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence. + +PART III - Sale of Goods + +Chapter I - General Provisions + +Article 25 + +A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. + +Article 26 + +A declaration of avoidance of the contract is effective only if made by notice to the other party. + +Article 27 + +Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication. + +Article 28 + +If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention. + +Article 29 + +(1) A contract may be modified or terminated by the mere agreement of the parties. + +(2) A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct. + +Chapter II - Obligations of the Seller + +Article 30 + +The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention. + +Section I - Delivery of the goods and handing over of documents + +Article 31 + +If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: + +(a) if the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer; + +(b) if, in cases not within the preceding subparagraph, the contract related to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place - in placing the goods at the buyer's disposal at that place; + +(c) in other cases - in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract. + +Article 32 + +(1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods. + +(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation. + +(3) If the seller is not bound to effect insurance in respect of the carriage of the goods, he must, at the buyer's request, provide him with all available information necessary to enable him to effect such insurance. + +Article 33 + +The seller must deliver the goods: + +(a) if a date is fixed by or determinable from the contract, on that date; + +(b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or + +(c) in any other case, within a reasonable time after the conclusion of the contract. + +Article 34 + +If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. + +Section II - Conformity of the goods and third party claims + +Article 35 + +(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. + +(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: + +(a) are fit for the purposes for which goods of the same description would ordinarily be used; + +(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement; + +(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; + +(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods. + +(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity. + +Article 36 + +(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time. + +(2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics. + +Article 37 + +If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. + +Article 38 + +(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. + +(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. + +(3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination. + +Article 39 + +(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. + +(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. + +Article 40 + +The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer. + +Article 41 + +The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42. + +Article 42 + +(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property: + +(a) under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or + +(b) in any other case, under the law of the State where the buyer has his place of business. + +(2) The obligation of the seller under the preceding paragraph does not extend to cases where: + +(a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or + +(b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer. + +Article 43 + +(1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim. + +(2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. + +Article 44 + +Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice. + +Section III - Remedies for breach of contract by the seller + +Article 45 + +(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may: + +(a) exercise the rights provided in articles 46 to 52; + +(b) claim damages as provided in articles 74 to 77. + +(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies. + +(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract. + +Article 46 + +(1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement. + +(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter. + +(3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter. + +Article 47 + +(1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations. + +(2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance. + +Article 48 + +(1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention. + +(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller. + +(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision. + +(4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer. + +Article 49 + +(1) The buyer may declare the contract avoided: + +(a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or + +(b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed. + +(2) However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so: + +(a) in respect of late delivery, within a reasonable time after he has become aware that delivery has been made; + +(b) in respect of any breach other than late delivery, within a reasonable time: + +(i) after he knew or ought to have known of the breach; + +(ii) after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 47, or after the seller has declared that he will not perform his obligations within such an additional period; or + +(iii) after the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 48, or after the buyer has declared that he will not accept performance. + +Article 50 + +If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price. + +Article 51 + +(1) If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46 to 50 apply in respect of the part which is missing or which does not conform. + +(2) The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract. + +Article 52 + +(1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery. + +(2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate. + +Chapter III - Obligations of the Buyer + +Article 53 + +The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention. + +Section I - Payment of the price + +Article 54 + +The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made. + +Article 55 + +Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned. + +Article 56 + +If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight. + +Article 57 + +(1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: + +(a) at the seller's place of business; or + +(b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. + +(2) The seller must bear any increases in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract. + +Article 58 + +(1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents. + +(2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price. + +(3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity. + +Article 59 + +The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller. + +Section II - Taking delivery + +Article 60 + +The buyer's obligation to take delivery consists: + +(a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and + +(b) in taking over the goods. + +Section III - Remedies for breach of contract by the buyer + +Article 61 + +(1) If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may: + +(a) exercise the rights provided in articles 62 to 65; + +(b) claim damages as provided in articles 74 to 77. + +(2) The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies. + +(3) No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract. + +Article 62 + +The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement. + +Article 63 + +(1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations. + +(2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance. + +Article 64 + +(1) The seller may declare the contract avoided: + +(a) if the failure by the buyer to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or + +(b) if the buyer does not, within the additional period of time fixed by the seller in accordance with paragraph (1) of article 63, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed. + +(2) However, in cases where the buyer has paid the price, the seller loses the right to declare the contract avoided unless he does so: + +(a) in respect of late performance by the buyer, before the seller has become aware that performance has been rendered; or + +(b) in respect of any breach other than late performance by the buyer, within a reasonable time: + +(i) after the seller knew or ought to have known of the breach; or + +(ii) after the expiration of any additional period of time fixed by the seller in accordance with paragraph (1) or article 63, or after the buyer has declared that he will not perform his obligations within such an additional period. + +Article 65 + +(1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him. + +(2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding. + +Chapter IV - Passing of Risk + +Article 66 + +Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller. + +Article 67 + +(1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. + +(2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise. + +Article 68 + +The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller. + +Article 69 + +(1) In cases not within articles 67 and 68, the risk passes to the buyer when he takes over the goods or, if he does not do so in due time, from the time when the goods are placed at his disposal and he commits a breach of contract by failing to take delivery. + +(2) However, if the buyer is bound to take over the goods at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. + +(3) If the contract relates to goods not then identified, the goods are considered not to be placed at the disposal of the buyer until they are clearly identified to the contract. + +Article 70 + +If the seller has committed a fundamental breach of contract, articles 67, 68 and 69 do not impair the remedies available to the buyer on account of the breach. + +Chapter V - Provisions Common to the Obligations of the Seller and of the Buyer + +Section I - Anticipatory breach and instalment contracts + +Article 71 + +(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of: + +(a) a serious deficiency in his ability to perform or in his creditworthiness; or + +(b) his conduct in preparing to perform or in performing the contract. + +(2) If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. + +(3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance. + +Article 72 + +(1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided. + +(2) If time allows, the party intending to declare the contract avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance. + +(3) The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations. + +Article 73 + +(1) In the case of a contract for delivery of goods by instalments, if the failure of one party to perform any of his obligations in respect of any instalment constitutes a fundamental breach of contract with respect to that instalment, the other party may declare the contract avoided with respect to that instalment. + +(2) If one party's failure to perform any of his obligations in respect of any instalment gives the other party good grounds to conclude that a fundamental breach of contract will occur with respect to future instalments, he may declare the contract avoided for the future, provided that he does so within a reasonable time. + +(3) A buyer who declares the contract avoided in respect of any delivery may, at the same time, declare it avoided in respect of deliveries already made or of future deliveries if, by reason of their interdependence, those deliveries could not be used for the purpose contemplated by the parties at the time of the conclusion of the contract. + +Section II - Damages + +Article 74 + +Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. + +Article 75 + +If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74. + +Article 76 + +(1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance. + +(2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods. + +Article 77 + +A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated. + +Section III - Interest + +Article 78 + +If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74. + +Section IV - Exemptions + +Article 79 + +(1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. + +(2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if: + +(a) he is exempt under the preceding paragraph; and + +(b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him. + +(3) The exemption provided by this article has effect for the period during which the impediment exists. + +(4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt. + +(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention. + +Article 80 + +A party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first party's act or omission. + +Section V - Effects of avoidance + +Article 81 + +(1) Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due. Avoidance does not affect any provision of the contract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. + +(2) A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently. + +Article 82 + +(1) The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them. + +(2) The preceding paragraph does not apply: + +(a) if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which the buyer received them is not due to his act or omission; + +(b) if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in article 38; or + +(c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course normal use before he discovered or ought to have discovered the lack of conformity. + +Article 83 + +A buyer who has lost the right to declare the contract avoided or to require the seller to deliver substitute goods in accordance with article 82 retains all other remedies under the contract and this Convention. + +Article 84 + +(1) If the seller is bound to refund the price, he must also pay interest on it, from the date on which the price was paid. + +(2) The buyer must account to the seller for all benefits which he has derived from the goods or part of them: + +(a) if he must make restitution of the goods or part of them; or + +(b) if it is impossible for him to make restitution of all or part of the goods or to make restitution of all or part of the goods substantially in the condition in which he received them, but he has nevertheless declared the contract avoided or required the seller to deliver substitute goods. + +Section VI - Preservation of the goods + +Article 85 + +If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them. He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer. + +Article 86 + +(1) If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances. He is entitled to retain them until he has been reimbursed his reasonable expenses by the seller. + +(2) If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided that this can be done without payment of the price and without unreasonable inconvenience or unreasonable expense. This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination. If the buyer takes possession of the goods under this paragraph, his rights and obligations are governed by the preceding paragraph. + +Article 87 + +A party who is bound to take steps to preserve the goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable. + +Article 88 + +(1) A party who is bound to preserve the goods in accordance with article 85 or 86 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party. + +(2) If the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordance with article 85 or 86 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell. + +(3) A party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance. + +PART IV - Final Provisions + +Article 89 + +The Secretary-General of the United Nations is hereby designated as the depositary for this Convention. + +Article 90 + +This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement. + +Article 91 + +(1) This Convention is open for signature at the concluding meeting of the United Nations Conference on Contracts for the International Sale of Goods and will remain open for signature by all States at the Headquarters of the United Nations, New York until 30 September 1981. + +(2) This Convention is subject to ratification, acceptance or approval by the signatory States. + +(3) This Convention is open for accession by all States which are not signatory States as from the date it is open for signature. + +(4) Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations. + +Article 92 + +(1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention. + +(2) A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies. + +Article 93 + +(1) If a Contracting State has two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time. + +(2) These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends. + +(3) If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends. + +(4) If a Contracting State makes no declaration under paragraph (1) of this article, the Convention is to extend to all territorial units of that State. + +Article 94 + +(1) Two or more Contracting States which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. Such declarations may be made jointly or by reciprocal unilateral declarations. + +(2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-Contracting States may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. + +(3) If a State which is the object of a declaration under the preceding paragraph subsequently becomes a Contracting State, the declaration made will, as from the date on which the Convention enters into force in respect of the new Contracting State, have the effect of a declaration made under paragraph (1), provided that the new Contracting State joins in such declaration or makes a reciprocal unilateral declaration. + +Article 95 + +Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention. + +Article 96 + +A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State. + +Article 97 + +(1) Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance or approval. + +(2) Declarations and confirmations of declarations are to be in writing and be formally notified to the depositary. + +(3) A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary. Reciprocal unilateral declarations under article 94 take effect on the first day of the month following the expiration of six months after the receipt of the latest declaration by the depositary. + +(4) Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary. Such withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary. + +(5) A withdrawal of a declaration made under article 94 renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article. + +Article 98 + +No reservations are permitted except those expressly authorized in this Convention. + +Article 99 + +(1) This Convention enters into force, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92. + +(2) When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession. + +(3) A State which ratifies, accepts, approves or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect. + +(4) A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 52 that it will not be bound by Part II of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying the Government of the Netherlands to that effect. + +(5) A State party to the 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part III of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect. + +(6) For the purpose of this article, ratifications, acceptances, approvals and accessions in respect of this Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective. The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination in this respect. + +Article 100 + +(1) This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1)(a) or the Contracting State referred to in subparagraph (1)(b) of article 1. + +(2) This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1)(a) or the Contracting State referred to in subparagraph (1)(b) of article 1. + +Article 101 + +(1) A Contracting State may denounce this Convention, or Part II or Part III of the Convention, by a formal notification in writing addressed to the depositary. + +(2) The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary. + +:B~ [Post Provisions]-# + +1~post [Post Clauses (If any: Signed; Witnessed; Done; Authentic Texts; & Deposited Clauses)]-# + +DONE at Vienna, this day of eleventh day of April, one thousand nine hundred and eighty, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic. + +IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed this Convention. diff --git a/data/v3/samples/viral_spiral.david_bollier.sst b/data/v3/samples/viral_spiral.david_bollier.sst new file mode 100644 index 0000000..0f98794 --- /dev/null +++ b/data/v3/samples/viral_spiral.david_bollier.sst @@ -0,0 +1,2932 @@ +% SiSU 2.0 + +@title: Viral Spiral + :subtitle: How the Commoners Built a Digital Republic of Their Own + :language: US + +@creator: + :author: Bollier, David + +@classify: + :type: Book + :oclc: 227016731 + :topic_register: SiSU:markup sample:book;networks;Internet:social aspects|copyright|intellectual property;intellectual property:copyright|creative commons|patents|public domain;society:information society;copyright:creative commons|public domain|licenses;patents;book:subject:information society|information networks|society|copyright|creative commons|patents|culture;open source software:social aspects;software:free software|GPL|open source;license:GPL;programming;democracy;democratization;creative commons:organization;public domain:copyright law (U.S.);free culture;culture + +@rights: + :copyright: © 2008 by David Bollier All rights reserved. No part of this book may be reproduced, in any form, without written permission from the publisher. The author has made an online version of the book available under a Creative Commons Attribution-NonCommercial license. It can be accessed at http://www.viralspiral.cc and http://www.onthecommons.org. Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 38 Greene Street, New York, NY 10013. Published in the United States by The New Press, New York, 2008 Distributed by W. W. Norton & Company, Inc., New York ISBN 978-1-59558-396-3 (hc.) CIP data available The New Press was established in 1990 as a not-for-profit alternative to the large, commercial publishing houses currently dominating the book publishing industry. The New Press operates in the public interest rather than for private gain, and is committed to publishing, in innovative ways, works of educational, cultural, and community value that are often deemed insufficiently profitable. www.thenewpress.com A Caravan book. For more information, visit www.caravanbooks.org. + :license: Creative Commons Attribution-NonCommercial license. + +@make: + :breaks: new=:B,C; break=1 + :texpdf_font: Liberation Sans + :skin: skin_vs_david_bollier + +@links: + {Viral Spiral}http://viralspiral.cc/ + {David Bollier}http://www.bollier.org/ + {David Bollier @ Wikipedia}http://en.wikipedia.org/wiki/David_Bollier + {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler + {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel + {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty + {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig + {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow + {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner + {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond + {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow + {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + {Viral Spiral @ Amazon.com}http://www.amazon.com/Viral-Spiral-Commoners-Digital-Republic/dp/1595583963 + {Viral Spiral @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=1595583963 + +:A~ @title @author + +1~attribution Attribution~# + +To Norman Lear, dear friend and intrepid explorer of the frontiers of democratic practice -# + +1~acknowledgments ACKNOWLEDGMENTS + +In this book, as with any book, dozens of barely visible means of support conspired to help me. It has been hard work, but any author with sufficient honesty and self-awareness realizes the extent to which he or she is a lens that refracts the experiences, insights, and writings of others. It is a pleasure to pay tribute to those who have been helpful to me. + +I am grateful to Larry Lessig, a singular visionary in developing the commons as a new paradigm, for helping to make this book possible. He submitted to several interviews, facilitated my research within the Creative Commons community, and, despite our shared involvements in various projects over the years, scrupulously respected my independence. It is also a pleasure to thank the Rockefeller Foundation for generously helping to cover my research, reporting, and travel expenses. + +I interviewed or consulted with more than one hundred people in the course of writing this book. I want to thank each of them for carving out some time to speak with me and openly sharing their thoughts. The Creative Commons and iCommons staff were particularly helpful in making time for me, pointing me toward useful documents and Web sites and sharing their expertise. I must single out Glenn Otis Brown, Mia Garlick, Joichi Ito, Heather Ford, Tomislav Medak, Ronaldo Lemos, and Hal Abelson for their special assistance. + +Since writing a book resembles parachuting into a forest and then trying to find one’s way out, I was pleased to have many friends who recommended some useful paths to follow. After reading some or all of my manuscript, the following friends and colleagues offered many invaluable suggestions and criticisms: Charles Schweik, Elliot E. Maxwell, John Seely Brown, Emily Levine, Peter Suber, Julie Ristau, Jay Walljasper, Jonathan Rowe, Kathryn Milun, Laurie Racine, and Gigi Sohn. It hardly requires saying that none of these astute readers bears any responsibility for the choices that I ultimately made. + +For the past seven years, the Tomales Bay Institute, recently renamed On the Commons, has nurtured my thinking and commitment to the commons. (On the Commons has no formal affiliation to the Creative Commons world, but it enthusiastically shares its commitments to the commons.) I am grateful to my colleagues Peter Barnes, Harriet Barlow, and Julie Ristau for their unflagging support of my book over the past three years, even when it impinged on my other responsibilities. + +In the early stages of this book, Elaine Pagels was unusually generous in offering her help, and my conversations with Nick Bromell helped pry loose some important insights used in my conclusion. Cherry Alvarado was of extraordinary help to me as she transcribed scores of interviews with unfailing good humor and precision. I also wish to thank Andrew Ryder for resourceful assistance in the early stages of my research. + +I have dedicated this book to my dear friend and mentor Norman Lear. The zeal, imagination, and grace that he brings to the simple imperatives of citizenship have been more instructive and inspirational than he perhaps realizes. He has also been of incalculable support to me in my headstrong explorations of the commons. + +Finally, at the end of the day, when I emerge from my writer’s lair or return from yet another research and reporting trip, it is Ellen and my sons Sam and Tom who indulge my absences, mental and physical, and reacquaint me with the things that matter most. I could not wish for more. David Bollier Amherst, Massachusetts May 1, 2008 + +1~introduction INTRODUCTION + +It started with that great leap forward in human history the Internet, which gave rise to free software in the 1980s and then the World Wide Web in the early 1990s. The shockingly open Internet, fortified by these tools, began empowering a brash new culture of rank amateurs — you and me. And this began to reverse the fierce tide of twentieth-century media. Ordinary people went online, if only to escape the incessant blare of television and radio, the intrusive ads and the narrow spectrum of expression. People started to discover their own voices . . . and their own capabilities . . . and one another. +={free software+2} + +As the commoners began to take charge of their lives, they discovered anew that traditional markets, governments, and laws were often not serving their needs very well. And so some pioneers had the audacity to invent an infrastructure to host new alternatives: free and open-source software. Private licenses to enable sharing and bypass the oppressive complications of copyright law. A crazy quilt of Web applications. And new types of companies that thrive on servicing social communities on open platforms. + +At the dawn of the twenty-first century, the commoners began to make some headway. More people were shifting their attention away from commercial media to homegrown genres — listservs, Web sites, chat rooms, instant messaging, and later, blogs, podcasts, and wikis. A swirling mass of artists, legal scholars, techies, activists, and even scientists and businesses began to create their own online commons. They self-organized themselves into a loosely coordinated movement dedicated to “free culture.” + +The viral spiral was under way. + +Viral spiral? /{Viral}/, a term borrowed from medical science, refers to the way in which new ideas and innovations on the Internet can proliferate with astonishing speed. A video clip, a blog post, an advertisement released on the Internet tumbles into other people’s consciousness in unexpected ways and becomes the raw feedstock for new creativity and culture. This is one reason the Internet is so powerful — it virally propagates creativity. A novel idea that is openly released in the networked environment can often find its way to a distant person or improbable project that can really benefit from it. This recombinative capacity — efficiently coordinated through search engines, Web logs, informal social networks, and other means— radically accelerates the process of innovation. It enlivens democratic culture by hosting egalitarian encounters among strangers and voluntary associations of citizens. Alexis de Tocqueville would be proud. + +The /{spiral}/ of /{viral spiral}/ refers to the way in which the innovation of one Internet cohort rapidly becomes a platform used by later generations to build their own follow-on innovations. It is a corkscrew paradigm of change: /{viral}/ networking feeds an upward /{spiral}/ of innovation. The cutting-edge thread achieves one twist of change, positioning a later thread to leverage another twist, which leverages yet another. Place these spirals in the context of an open Internet, where they can sweep across vast domains of life and catalyze new principles of order and social practice, and you begin to get a sense of the transformative power of viral spirals. + +The term /{viral spiral}/ is apt, additionally, because it suggests a process of change that is anything but clean, direct, and mechanical. In the networked environment, there is rarely a direct cause-andeffect. Things happen in messy, irregular, indeterminate, serendipitous ways. Life on the Internet does not take place on a stable Cartesian grid — orderly, timeless, universal — but on a constantly pulsating, dynamic, and labyrinthine /{web}/ of finely interconnected threads radiating through countless nodes. Here the context is as rich and generative as any individual, /{Viral spiral}/ calls attention to the holistic and historical dynamics of life on the Web, which has a very different metaphysical feel than the world of twentieth-century media. + +The viral spiral began with free software (code that is free to use, not code at no cost) and later produced the Web. Once these open platforms had sufficiently matured, tech wizards realized that software’s great promise is not as a stand-alone tool on PCs, but as a social platform for Web-based sharing and collaboration. The commoners could then begin to imagine: How might these tools be used to overcome the arbitrary and confusing limitations of copyright law? One answer, the Creative Commons (CC) licenses, a free set of public licenses for sharing content, helped mitigate the legal risks of sharing of works under copyright law. This innovation, in turn, helped unleash a massive wave of follow-on innovations. +={free software;Creative Commons (CC) licenses} + +Web 2.0 applications flourished, many of them relying upon sharing made legal through CC licenses. By avoiding the costly overhead of centralized production and marketing, and tapping into the social vitality of a commons, Web 2.0 platforms have enabled ordinary people to share photos (Flickr), favorite browser bookmarks (del.icio.us), favorite news stories (Digg, Reddit), and homemade videos (YouTube). They let people access user-created archives (Wikipedia, Internet Archive, Ourmedia.org), collaborate in news gathering (OhmyNews, Assignment Zero), participate in immersive communities (Second Life), and build open-business models (Magnatune, Revver, Jamendo). +={web 2.0:applications} + +This book seeks to trace the long arc of change wrought by a kaleidoscopic swarm of commoners besieged by oppressive copyright laws, empowered by digital technologies, and possessed of a vision for a more open, democratic society. Their movement has been fired by the rhetoric of freedom and actualized by digital technologies connected by the Internet. These systems have made it extremely cheap and easy for ordinary people to copy and share things, and to collaborate and organize. They have democratized creativity on a global scale, challenging the legitimacy and power of all sorts of centralized, hierarchical institutions. + +This larger story has rarely been told in its larger scope. It is at base a story of visionary individuals determined to protect the shared code, content, and social community that they have collectively generated. Richard Stallman pioneered the development of free software; Lawrence Lessig waged challenges against excessive copyright protection and led the development of the Creative Commons licenses; citizen-archivist Eric Eldred fought to preserve his online body of public-domain literature and the community that grew up around it. These are simply the better-known leaders of a movement that has attracted thousands of commoners who are building legally defensible commons into which to pour their creative energies and live their lives. +={free software;commoners:concept of+5;commons:concept of+1} + +The commons — a hazy concept to many people — is a new paradigm for creating value and organizing a community of shared interest. It is a vehicle by which new sorts of self-organized publics can gather together and exercise new types of citizenship. The commons can even serve as a viable alternative to markets that have grown stodgy, manipulative, and coercive. A commons arises whenever a given community decides that it wishes to manage a resource in a collective manner, with special regard for equitable access, use, and sustainability. The commons is a means by which individuals can band together with like-minded souls and express a sovereignty of their own. + +Self-styled commoners can now be found in dozens of nations around the world. They are locally rooted but internationally aware citizens of the Internet. They don’t just tolerate diversity (ethnic, cultural, aesthetic, intellectual), they celebrate it. Although commoners may have their personal affinities — free software, open-access publishing, remix music, or countless others — they tend to see themselves as part of a larger movement. They share an enthusiasm for innovation and change that burbles up from the bottom, and are known to roll their eyes at the thick-headedness of the mainstream media, which always seem to be a few steps behind. +={free software} + +If there is an element of self-congratulatory elitism at times, it stems from the freedom of commoners to negotiate their own rules and the pleasure of outmaneuvering conventional institutions. The commoners know how to plug into the specialized Web sites and practitioner communities that can provide just-in-time, highly specialized expertise. As Herbert Simon, the computer-oriented social scientist, once put it, “The meaning of ‘knowing’ today has shifted from being able to remember and repeat information to being able to find and use it.” ~{Cited by John Seely Brown, former chief scientist, Xerox Palo Alto Research Center, at Open Educational Resources conference, Houston, Texas, March 29, 2007.}~ Commoners realize that this other way of being, outside hierarchical institutions, in the open space where viral spirals of innovation are free to materialize, is an important source of their insurgent power. +={Herbert, Simon} + +It is perilous to generalize about a movement that has so many disparate parts pushing and pulling and innovating in so many different directions at once. Yet it is safe to say that the commoners— a digital embodiment of /{e pluribus unum}/ — share a common goal. They wish to transcend the limitations of copyright law in order to build their own online communities. It’s not as if the commoners are necessarily hostile to copyright law, markets, or centralized institutions. Indeed, many of them work for large corporations and universities; many rely on copyright to earn a livelihood; many are entrepreneurs. +={commoners:goal} + +Yet the people who are inventing new commons have some deeper aspirations and allegiances. They glimpse the liberating potential of the Internet, and they worry about the totalizing inclinations of large corporations and the state, especially their tendency to standardize and coerce behavior. They object as well to processes that are not transparent. They dislike the impediments to direct access and participation, the limitations of credentialed expertise and arbitrary curbs on people’s freedom. + +One of the first major gatherings of international commoners occurred in June 2006, when several hundred people from fifty nations converged on Rio de Janeiro, Brazil, for the iCommons Summit. The people of this multinational, eclectic vanguard blend the sophistication of the establishment in matters of power and politics with the bravado and playfulness of Beat poets. There were indie musicians who can deconstruct the terms of a record company licensing agreement with Talmudic precision. There were Web designers who understand the political implications of arcane rules made by the World Wide Web Consortium, a technical standards body. The lawyers and law professors who discourse about Section 114 of the Copyright Act are likely to groove on the remix career of Danger Mouse and the appropriationist antics of Negativland, a sound-collage band. James Boyle and Jennifer Jenkins, two law scholars at Duke Law School, even published a superhero comic book, /{Down by Law!}/, which demystifies the vagaries of the “fair use doctrine” through a filmmaker character resembling video game heroine Lara Croft.~{Keith Aoki, James Boyle, Jennifer Jenkins, /{Down by Law!}/ at http://www.duke.edu/cspd/comics. }~ (Fair use is a provision of copyright law that makes it legal to excerpt portions of a copyrighted work for noncommercial, educational, and personal purposes.) +={commoners:gatherings of} + +2~ The Rise of Socially Created Value +={socially created value+5} + +The salience of electronic commerce has, at times, obscured an important fact — that the commons is one of the most potent forces driving innovation in our time. Individuals working with one another via social networks are a growing force in our economy and society. This phenomenon has many manifestations, and goes by many names — “peer production,” “social production,” “smart mobs,” the “wisdom of crowds,” “crowdsourcing,” and “the commons.”~{“Social production” and “peer production” are associated with the work of Yale law professor Yochai Benkler, especially in his 2006 book, /{The Wealth of Networks}/. “Smart mobs” is a coinage of Howard Rheingold, author of a 2003 book by the same name.“Crowdsourcing” is the name of a blog run by Jeff Howe and the title of a June 2006 /{Wired}/ article on the topic.“Wisdom of crowds” is a term coined by James Surowiecki and used as the title of his 2004 book.}~ The basic point is that /{socially created value}/ is increasingly competing with conventional markets, as GNU/Linux has famously shown. Through an open, accessible commons, one can efficiently tap into the “wisdom of the crowd,” nurture experimentation, accelerate innovation, and foster new forms of democratic practice. +={commons:sources of new ideas, as+1} + +This is why so many ordinary people — without necessarily having degrees, institutional affiliations, or wealth — are embarking upon projects that, in big and small ways, are building a new order of culture and commerce. It is an emerging universe of economic, social, and cultural activity animated by self-directed amateurs, citizens, artists, entrepreneurs, and irregulars. + +Hugh McGuire, a Montreal-based writer and Web designer, is one. In 2005, he started LibriVox, a digital library of free public-domain audio books that are read and recorded by volunteers. More than ten thousand people a day visit the Web site to download audio files of Twain, Kafka, Shakespeare, Dostoyevsky, and others, in nearly a dozen languages.~{ http://www.librivox.org. }~ The Faulkes Telescope Project in Australia lets high school students connect with other students, and with professional astronomers, to scan the skies with robotic, online telescopes.~{ http://faulkes-telescope.com. }~ In a similar type of learning commons, the Bugscope project in the United States enables students to operate a scanning electronic microscope in real time, using a simple Web browser on a classroom computer connected to the Internet.~{ http://bugscope.beckman.uiuc.edu. }~ +={Bugscope;LibriVox;McGuire, Hugh;Faulkes Telescope Project} + +Thousands of individual authors, musicians, and filmmakers are using Web tools and Creative Commons licenses to transform markets for creative works — or, more accurately, to blend the market and commons into integrated hybrids. A nonprofit humanitarian group dedicated to doing reconstructive surgery for children in poor countries, Interplast, produced an Oscar-winning film, /{A Story of Healing}/, in 1997. Ten years later, it released the film under a Creative Commons license as a way to publicize Interplast’s work while retaining ownership of the film: a benefit for both film buffs and Interplast.~{ http://www.interplast.org and http://creativecommons.org/press-releases/2007/04/%E2%80%9Ca-story-of-healing%E2%80%9D-becomes-first-acad emy-award%C2%AE-winning-film-released-under-a-creative-commons-li cense. }~ +={Interplast} + +Scoopt, a Glasgow, Scotland–based photography agency, acts as a broker to help bloggers and amateurs sell newsworthy photos and videos to the commercial media.~{ http://www.scoopt.com. }~ The Boston band Two Ton Shoe released its music on the Web for free to market its concerts. Out of the blue, a South Korean record label called one day to say it loved the band and could it come over to Seoul, all expenses paid, to perform four concerts? Each one sold out.~{ http://www.twotonshoe.com/news.html. }~ Boing Boing blogger and cyber-activist Cory Doctorow released his 2003 science-fiction novel, /{Down and Out in the Magic Kingdom}/, under a CC license, reaping a whirlwind of worldwide exposure.~{ See Doctorow’s preface to the second release of the book, February 12, 2004, Tor Books. See also his blog Craphound.com, September 9, 2006, at http://www.craphound.com/?=p=1681. }~ +={Doctorow, Cory;Scoopt} + +2~ The Commoners Build a Digital Republic of Their Own +={commons: achievement of+11} + +The profusion of commons on the Internet may appear to be a spontaneous and natural development. In fact, it is a hard-won achievement. An infrastructure of software, legal rights, practical expertise, and social ethics had to be imagined, built, and defended. In a sense, the commoners had to invent themselves as commoners. They had to learn to recognize their own distinct interests — in how to control their creative works, how to organize their communities, and how to engage with market players without being co-opted. They have, in fact, invented a new sort of democratic polity within the edifice of the conventional nation-state. + +The commoners differ from most of their corporate brethren in their enthusiasm for sharing. They prefer to freely distribute their writing, music, and videos. As a general rule, they don’t like to encase their work in airtight bubbles of property rights reinforced by technological locks. They envision cyberspace more as a peaceable, sociable kingdom than as a take-no-prisoners market. They honor the individual while respecting community norms. They are enthusiastic about sharing while respecting the utility of markets. Idealistic yet pragmatic, they share a commitment to open platforms, social cooperation, and elemental human freedoms. +={commoners:sharing by+1} + +It is all very well to spout such lofty goals. But how to actualize them? That is the story that the following pages recount. It has been the work of a generation, some visionary leaders, and countless individuals to articulate a loosely shared vision, build the infrastructure, and develop the social practices and norms. This project has not been animated by a grand political ideology, but rather is the result of countless initiatives, grand and incremental, of an extended global family of hackers, lawyers, bloggers, artists, and other supporters of free culture. +={commons:political implications of+3} + +And yet, despite its focus on culture and its aversion to conventional politics, the growth of this movement is starting to have political implications. In an influential 2003 essay, James F. Moore announced the arrival of “an emerging second superpower.”~{ James F. Moore, “The Second Superpower Rears its Beautiful Head,” March 31, 2003, available at http://cyber.law.harvard.edu/people/jmoore/secondsuperpower.html. }~ It was not a nation, but the coalescence of people from around the world who were asserting common values, and forming new public identities, via online networks. The people of this emerging “superpower,” Moore said, are concerned with improving the environment, public health, human rights, and social development. He cited as early examples the international campaign to ban land mines and the Seattle protests against the World Trade Organization in 1999. The power and legitimacy of this “second superpower” do not derive from the constitutional framework of a nation-state, but from its ability to capture and project people’s everyday feelings, social values, and creativity onto the world stage. Never in history has the individual had such cheap, unfettered access to global audiences, big and small. +={Moore, James} + +The awakening superpower described in /{Viral Spiral}/ is not a conventional political or ideological movement that focuses on legislation and a clutch of “issues.” While commoners do not dismiss these activities as unimportant, most are focused on the freedom of their peer communities to create, communicate, and share. When defending these freedoms requires wading into conventional politics and law, they are prepared to go there. But otherwise, the commoners are more intent on building a kind of parallel social order, inscribed within the regnant political economy but animated by their own values. Even now, the political/cultural sensibilities of this order are only vaguely understood by governments, politicians, and corporate leaders. The idea of “freedom without anarchy, control without government, consensus without power” — as Lawrence Lessig put it in 1999~{ Lawrence Lessig, /{Code and Other Laws of Cyberspace}/ (New York: Basic Books, 1999), p. 4. }~ —is just too counterintuitive for the conventionally minded to take seriously. +={commoners:sharing by+1;Lessig, Lawrence+2} + +Very early on, the commoners identified copyright law as a major impediment to their vision of a “sharing economy.” It is not that they revile copyright law as such; indeed, many commoners defend the importance of copyright law to creative endeavor. The problem, they insist, is that large corporations with vast inventories of copyrighted works — film studios, record labels, book publishers, software companies — have used their political power unfairly to extend the scope and term of copyright privileges. A limited monopoly granted by the U.S. Constitution has morphed into an expansive, near-perpetual monopoly, enforced by intrusive technologies and draconian penalties. +={copyright law:sharing economy vs.+3} + +The resulting curbs on citizen freedom, as large entertainment and media corporations gain legal privileges at the expense of the public, is a complicated issue that I return to in chapter 2. But it is worth noting briefly why copyright law has been particularly harmful to the commons in the digital age. When Congress enacted a major revision of U.S. copyright law in 1976, it eliminated a longstanding requirement that works had to be formally registered in order to receive copyright protection.~{ The effect of the elimination of formal registration in copyright law is cogently discussed by Lessig in /{Free Culture}/ (New York: Penguin, 2004), pp. 170–73, and pp. 248–53. }~ Under the new law, /{everything}/ became automatically copyrighted upon creation. This meant that all information and artistic work created after 1978 (when the law took effect) has been born into an invisible envelope of property rights. It sounds appealing to eliminate bureaucratic formalities like registration. But the shift to automatic copyright has meant that every digital scribble is born with a © branded on its side. /{Culture = private property}/. +={Copyright Act (1976);copyright law:automatic+1|revision of (1976)+1|and property rights+1;property rights, and copyright law} + +The various industries that rely on copyrights have welcomed this development because it helps them portray their ownership rights as all-encompassing. They can cast the public’s right to use works without permission or payment — traditionally guaranteed under the fair use doctrine and the public domain — as exceptions to the general rule of absolute property rights. “What could be wrong with enclosing works in ever-stronger packages of property rights?” the music and film industries argue. “That’s how new economic wealth is created.” The media oligopolies that control most of television, film, music, and news gathering naturally want to protect their commercial content. It is the fruit of a vast system of fixed investment — equipment, high-priced stars, lawyers, distribution channels, advertising, etc. — and copyright law is an important tool for protecting that value. + +The Internet has profoundly disrupted this model of market production, however. The Internet is a distributed media system of low-cost capital (your personal computer) strung together with inexpensive transmission and software. Instead of being run by a centralized corporation that relies upon professionals and experts above all else, the Internet is a noncommercial infrastructure that empowers amateurs, citizens, and ordinary individuals in all their quirky, authentic variety. The mass media have long regarded people as a commodifiable audience to be sold to advertisers in tidy demographic units. +={Internet:empowerment by+2} + +Now, thanks to the Internet, “the people formerly known as the audience” (in Jay Rosen’s wonderful phrase) are morphing into a differentiated organism of flesh-and-blood, idiosyncratic individuals, as if awakening from a spell. Newly empowered to speak as they wish, in their own distinctive, personal voices to a global public of whoever cares to listen, people are creating their own transnational tribes. They are reclaiming culture from the tyranny of mass-media economics and national boundaries. In Lessig’s words, Internet users are overthrowing the “read only” culture that characterized the “weirdly totalitarian” communications of the twentieth century. In its place they are installing the “read/write” culture that invites everyone to be a creator, as well as a consumer and sharer, of culture.~{ Lawrence Lessig, “The Read-Write Society,” delivered at the Wizards of OS4 conference in Berlin, Germany, on September 5, 2006. Available at http://www.wizards-of-os.org/programm/panels/authorship_amp_culture/keynote_the_read_write_society/the_read_write_society.html. }~ A new online citizenry is arising, one that regards its socially negotiated rules and norms as at least as legitimate as those established by conventional law. +={Rosen, Jay} + +Two profoundly incommensurate media systems are locked in a struggle for survival or supremacy, depending upon your perspective or, perhaps, mutual accommodation. For the moment, we live in a confusing interregnum — a transition that pits the dwindling power and often desperate strategies of Centralized Media against the callow, experimental vigor of Internet-based media. This much is clear, however: a world organized around centralized control, strict intellectual property rights, and hierarchies of credentialed experts is under siege. A radically different order of society based on open access, decentralized creativity, collaborative intelligence, and cheap and easy sharing is ascendant. Or to put it more precisely, we are stumbling into a strange hybrid order that combines both worlds — mass media and online networks — on terms that have yet to be negotiated. + +2~ The Rise of the Commoners +={commoners:rise of+21} + +But who shall do the negotiating? Who will set forth a compelling alternative to centralized media, and build it? That task has fallen to a loosely coordinated global federation of digital tribes — the free software and open-source hackers, the Wikipedians, the bloggers and citizen-journalists, the remix musicians and filmmakers, the avant-garde artists and political dissidents, the educators and scientists, and many others. It is a spontaneous folk-tech conspiracy that belongs to everyone and no one. + +As we will see in chapter 1, Richard Stallman, the legendary hacker, played an indispensable first-mover role by creating a sovereign domain from which to negotiate with commercial players: free software. The software commons and later digital commons inspired by it owe an incalculable debt to Stallman’s ingenious legal innovation, the General Public License, or GPL, launched in 1989. The GPL is a license for authorizing anyone to use a copyrighted software program so long as any copies or derivative versions are also made available on the same terms. This fairly simple license enables programmers to contribute code to a common pool without fear that someone might privatize and destroy the commons. +={General Public License (GPL)} + +As the computer revolution continued through the 1980s and the Internet went wide in the 1990s, the antisocial, antidemocratic implications of copyright law in networked spaces became more evident. As we will see in chapter 2, a growing community of progressive legal scholars blew the whistle on some nasty developments in copyright law that were shrinking the public’s fair use rights and the public domain. Scholars such as James Boyle, Pamela Samuelson, Jessica Litman, Yochai Benkler, Lawrence Lessig, Jonathan Zittrain, and Peter Jaszi provided invaluable legal analyses about the imperiled democratic polity of cyberspace. +={Lessig, Lawrence+2} + +By the late 1990s, this legal scholarship was in full flower, Internet usage was soaring, and the free software movement produced its first significant free operating system, GNU/Linux. The commoners were ready to take practical action. Lessig, then a professor at Harvard Law School, engineered a major constitutional test case, /{Eldred v. Reno}/ (later /{Eldred v. Ashcroft}/), to try to strike down a twentyyear extension of copyright terms — a case that reached the U.S. Supreme Court in 2002. At the same time, Lessig and a number of his colleagues, including MIT computer scientist Hal Abelson, Duke law professor James Boyle, and Villanova law professor Michael W. Carroll, came together to explore innovative ways to protect the public domain. It was a rare moment in history in which an ad hoc salon of brilliant, civic-minded thinkers from diverse fields of endeavor found one another, gave themselves the freedom to dream big thoughts, and embarked upon practical plans to make them real. +={GNU/Linux;Linux:see also GNU/Linux;Eldred v. Reno/Eldred v. Ashcroft} + +The immediate upshot of their legal and techno ingenuity, as we will see in chapters 3 and 4, was the drafting of the Creative Commons licenses and the organization that would promote them. The purpose of these free, standardized public licenses was, and is, to get beyond the binary choice imposed by copyright law. Why must a work be considered either a chunk of privately owned property or a kind of nonproperty completely open to anyone without constraint (“in the public domain”)? The CC licenses overcome this stifling either/or logic by articulating a new middle ground of ownership that sanctions sharing and collaboration under specified terms. To stress its difference from copyright law, which declares “All Rights Reserved,” the Creative Commons licenses bear the tagline “Some Rights Reserved.” +={Creative Commons (CC) licenses+2|copyright law, and+2;opyright law:CC licenses+2} + +Like free software, the CC licenses paradoxically rely upon copyright law to legally protect the commons. The licenses use the rights of ownership granted by copyright law not to exclude others, but to invite them to share. The licenses recognize authors’ interests in owning and controlling their work — but they also recognize that new creativity owes many social and intergenerational debts. Creativity is not something that emanates solely from the mind of the “romantic author,” as copyright mythology has it; it also derives from artistic communities and previous generations of authors and artists. The CC licenses provide a legal means to allow works to circulate so that people can create something new. /{Share, reuse, and remix, legally}/, as Creative Commons puts it. + +After the licenses were introduced in December 2002, they proliferated throughout the Internet and dozens of nations as if by spontaneous combustion. It turns out that the licenses have been more than a legal fix for the limitations of copyright law. They are a powerful form of social signaling. The licenses have proven to be a flag for commoners to advertise their identities as members of a culturally insurgent sharing economy — an aesthetic/political underground, one might say. Attaching the CC logo to one’s blog, video, MP3 file, or laptop case became a way to proclaim one’s support for free culture. Suddenly, all sorts of participatory projects could be seen as elements of a larger movement. By 2007, authors had applied one or more of six CC licenses to 90 million works, by one conservative estimate, or more than 220 million works by another estimate. Collectively, CC-licensed works constitute a class of cultural works that are “born free” to be legally shared and reused with few impediments. + +A great deal of the Creative Commons story revolves around its founder, the cerebral yet passionate Larry Lessig, a constitutional law professor at Harvard in the mid-1990s until a move to Stanford Law School in 2000. As a scholar with a sophisticated grasp of digital technologies, Lessig was one of the first to recognize that as computers became the infrastructure for society, software code was acquiring the force of law. His 1999 classic, /{Code and Other Laws of Cyberspace}/, is renowned for offering a deep theoretical framework for understanding how politics, law, technology, and social norms shape the character of cyberspace — and in turn, any society. +={Lessig, Lawrence:Code and Other Laws of Cyberspace} + +In popularizing this message, it didn’t hurt that Lessig, an experienced classroom lecturer, is a poised and spellbinding performer. On the tech and copyright circuit, in fact, he has become something of a rock star. With his expansive forehead and wire glasses, Lessig looks every bit the professor he is. Yet in his signature black jeans and sport jacket, delivering punchy one-liners punctuated by arresting visuals projected on a big screen behind him, Lessig makes a powerful impression. He’s a geek-chic techie, intellectual, legal activist, and showman all rolled into one. + +From the beginning, Lessig and his colleagues wondered, How far can the sharing ethic be engineered? Just how far can the idea of free culture extend? As it turns out, quite far. At first, of course, the free culture project was applied mostly to Web-based text and music. But as we see in chapters 5 through 12, the technologies and ethic of free culture have rapidly taken root in many creative sectors of society — video, music, books, science, education — and even business and international arts and culture. + +!{/{Remix culture.}/}! Thanks to digital technologies, musicians can sample verbatim snippets of other musicians’ work in their own works, producing “remixes” that blend sounds from a number of copyrighted songs. It’s all patently illegal, of course, unless you’re wealthy enough to pay for the rights to use a sample. But that hasn’t stopped artists. +={music:remixes+2;remix works+2} + +In fact, the underground remix scene has become so robust that even established artists feel obliged to engage with it to bolster their street cred. With a wink and a nudge from record labels, major rap stars like Jay-Z and Eminem have released instrumental tracks of their records in the hope and expectation that remix /{auteurs}/ will recycle the tracks. Record labels have quietly relied on mixtapes— personalized compilations of tracks — to gain exposure and credibility.~{ See, e.g., Joanna Demers, /{Steal This Music: How Intellectual Property Law Affects Musical Creativity}/ (Athens: University of Georgia Press, 2006); Kelefa Sanneh, “Mixtapes Mix in Marketing,” New York Times, July 20, 2006. }~ To help an illegal social art go legit, many artists are using Creative Commons licenses and public-domain sound clips to build a legal body of remix works. + +In the video world, too, the remix impulse has found expression in its own form of derivative creativity, the mashup. From underground remakes of /{Star Wars}/ films to parodies of celebrities, citizenamateurs are taking original video clips and mixing them with other images, pop music tracks, and their own narrations. When Alaska senator Ted Stevens compared the Internet to a “series of tubes,” video clips of his rambling speech were mashed up and set to a techno dance beat. Beyond this playful subculture, serious filmmakers are using CC licenses on their works to develop innovative distribution systems that attract large audiences and earn money. Machinima animations — a filmmaking technique that uses computer game action sequences, shot with in-game cameras and then edited together — are pioneering a new market niche, in part through their free distribution under a CC license. +={Machinima animations;Stevens, Ted} + +!{/{Open business.}/}! One of the most surprising recent developments has been the rise of “open business” models. Unlike traditional businesses that depend upon proprietary technology or content, a new breed of businesses see lucrative opportunities in exploiting open, participatory networks. The pioneer in this strategy was IBM, which in 2000 embraced GNU/Linux, the open-source computer operating system, as the centerpiece of its service and consulting business.~{ Steve Lohr, “IBM to Give Free Access to 500 Patents, /{New York Times}/, July 11, 2005. See also Steven Weber, /{The Success of Open Source Software}/ (Cambridge, Mass.: Harvard University Press, 2004), pp. 202–3. See also Pamela Samuelson, “IBM’s Pragmatic Embrace of Open Source,” /{Communications of the ACM}/ 49, no. 21 (October 2006). }~ Dozens of small, Internet-based companies are now exploiting open networks to build more flexible, sustainable enterprises. +={GNU/Linux:IBM, and;IBM:GNU/Linux, and;open business models+1} + +The key insight about many open-platform businesses is that they no longer look to copyright or patent law as tools to assert market control. Their goal is not to exclude others, but to amass large communities. Open businesses understand that exclusive property rights can stifle the value creation that comes with mass participation, and so they strive to find ways to “honor the commons” while making money in socially acceptable forms of advertising, subscriptions, or consulting services. The brave new economics of “peer production” is enabling forward-thinking businesses to use social collaboration among thousands, or even millions, of people to create social communities that are the foundation for significant profits. /{BusinessWeek}/ heralded this development in a major cover story in 2005, “The Power of Us,” and called sharing “the net’s next disruption.”~{ Robert D. Hof, “The Power of Us: Mass Collaboration on the Internet Is Shaking Up Business,” /{BusinessWeek}/, June 20, 2005, pp. 73–82. }~ + +!{/{Science}/}! as a commons. The world of scientific research has long depended on open sharing and collaboration. But increasingly, copyrights, patents, and university rules are limiting the flow of scientific knowledge. The resulting gridlock of rights in knowledge is impeding new discoveries and innovation. Because of copyright restrictions and software incompatibilities, scientists studying genetics, proteins, and marine biology often cannot access databases containing vital research. Or they cannot easily share physical samples of lab samples. When the maker of Golden Rice, a vitamin-enhanced bioengineered rice, tried to distribute its seeds to millions of people in poor countries, it first had to get permissions from seventy patent holders and obtain six Material Transfer Agreements (which govern the sharing of biomedical research substances).~{ Interview with John Wilbanks, “Science Commons Makes Sharing Easier,” /{Open Access Now}/, December 20, 2004, available at http://www.biomedcentral.com/openaccess/archive/?page=features&issue=23. }~ +={Wilbanks, John+1;Science Commons:CC Commons spinoff, and+1} + +The problem of acquiring, organizing, and sharing scientific knowledge is becoming more acute, paradoxically enough, as more scientific disciplines become dependent on computers and the networked sharing of data. To help deal with some of these issues, the Creative Commons in 2005 launched a new project known as the Science Commons to try to redesign the information infrastructure for scientific research. The basic idea is to “break down barriers to sharing that are hindering innovation in the sciences,” says John Wilbanks, executive director of Science Commons. Working with the National Academy of Sciences and other research bodies, Wilbanks is collaborating with astronomers, archaeologists, microbiologists, and medical researchers to develop better ways to make vast scientific literatures more computer-friendly, and databases technically compatible, so that they can be searched, organized, and used more effectively. + +!{/{Open education and learning.}/}! A new class of knowledge commons is poised to join free and open-source software, the Creative Commons and Wikipedia as a coherent social movement. The new groundswell goes by the awkward name “Open Educational Resources,” or OER.~{ See, e.g., Daniel E. Atkins, John Seely Brown, and Allen L. Hammond, “A Review of the Open Educational Resources (OER) Movement: Achievements, Challenges and New Opportunities,” February 2007, available at http://www.oerderves.org/?p=23. }~ One of the earlier pioneers of the movement was the Massachusetts Institute of Technology which has put virtually all of its course materials on the Web, for free, through its OpenCourseWare initiative. The practice has now spread to scores of colleges and universities around the world, and inspired a broader set of OER initiatives: digital repositories for articles, reports, and data; open-access scholarly journals that bypass expensive commercial publishers; and collaborative Web sites for developing teaching materials. There are wikis for students and scholars working together, sites to share multimedia presentations, and much more. +={education:OER movement+1;pen Educational Resources (OER) movement+1;Wikipedia:social movement, as+1;Creative Commons (CC):social movement, as+1} + +The OER movement has particular importance for people who want to learn but don’t have the money or resources — scholars in developing countries, students struggling to pay for their educations, people in remote or rural locations, people with specialized learning needs. OER is based on the proposition that it will not only be cheaper or perhaps free if teachers and students can share their materials through the Web, it will also enable more effective types of learning. So the OER movement is dedicated to making learning tools cheaper and more accessible. The revolutionary idea behind OER is to transform traditional education — teachers imparting information to passive students — into a more learnerdriven process facilitated by teachers. Self-directed, socially driven learning supplants formal, hierarchical modes of teaching. + +!{/{The international sharing economy.}/}! Shortly after the first CC licenses were released in 2002, dozens of exceptionally capable volunteers — from Japan, Finland, Brazil, South Africa, and other countries — came knocking on the door of CC. How can we adapt the American CC licenses to our respective national legal systems? they asked. This unexpected turn prompted the Creative Commons to inaugurate Creative Commons International, based in Berlin, Germany, to supervise the complicated task of “porting” the U.S. licenses to other legal jurisdictions. To date, CC affiliates in fortyseven nations have adapted the U.S. licenses to their legal systems, and another seventeen have porting projects under way. +={Creative Commons International+1} + +The volunteers include avant-garde artists in Croatia, free software programmers in the Netherlands, South Korean judges, Italian law professors, South African musicians, Malaysian citizenjournalists, Bulgarian filmmakers, and Taiwanese songwriters. The passionate international licensing movement has even been embraced by the Brazilian government, which has proclaimed itself the first Free Culture Nation. As usage of the licenses spreads, they are effectively becoming the default international legal structure of the sharing economy. + +2~ A New Type of Emergent Democracy? + +Peter Suber, a leading champion of open-access scholarly publishing, once explained to me why a disparate, rambunctious crowd of commoners spread around the globe might wish to work together to do something about their plight. “People are taking back their culture,” Peter said. “People who have not been served by the current law have quietly endured it until they saw that they didn’t have to.”~{ Interview with Peter Suber, June 28, 2006. }~ The Creative Commons has become both a symbol and a tool for people to reclaim creativity and culture from the mass-media leviathans. The licenses and the organization have become instruments to advance a participatory, sharing economy and culture. +={Suber, Peter} + +How far can it go? Will it significantly affect conventional politics and government? Can it bring market forces and social needs into a more positive alignment? + +This book is about the struggle to imagine this new world and push it as far as it can go. It is, in one sense, a history, but “history” suggests that the story is over and done. The truth is that the commons movement is tremendously robust and expansive right now. The early history about free software, the public domain, and the Creative Commons is simply a necessary foundation for understanding the propulsive logic of what is happening. + +The story told in these pages is not entirely new; it has been told in fragments and through the restless lens of journalism. But it has not been told in its larger conceptual and historical sweep. That’s partly because most of its players are usually seen in isolation from one another, and not put in the context of the larger open-platform revolution. It’s also because the free culture movement, nothwithstanding its vigor, is generally eclipsed by the bigmoney corporate developments that are ostensibly more important. But that is precisely the problem: conventional economics does not understand the actual significance of open platforms and the commons. We need to understand what the online commons represent: a powerful sociotechnological paradigm that is reordering some basic dynamics of creative practice, culture, politics, and everyday life. + +I am no bystander in this story, it must be said, but a commoner who has grappled with the quandaries of copyright law and the public domain for nearly twenty years. In 2001, after co-founding Public Knowledge, a Washington advocacy group to defend the public’s stake in copyright and Internet policies, I went on to write books on the market enclosure of myriad commons and on the absurd expansions of copyright and trademark law. Over the course of this work, I discovered how a commons analysis can help us understand the digital revolution. It can help us see that it is not just about technological innovation, but about social and legal innovations. Reading Elinor Ostrom and Yochai Benkler, in particular — two leading theorists of the commons — I came to realize that social communities, and not just markets, must be recognized as powerful vehicles for creating value. I realized that many basic assumptions about property rights, as embedded in copyright law and neoclassical economics, fail to take account of the generative power of online communities. +={Public Knowledge} + +How then shall we create the commons and protect it? That question lies at the core of this book and the history of the commoners in cyberspace. I am mostly interested in exploring how the Creative Commons has galvanized a variety of interrelated crusades to build a digital republic of, by, and for the commoners. One reason why a small licensing project has grown into a powerful global brand is that, at a time of mass-media dominance and political stalemate, free culture offers an idealistic alternative vision. Something you can do. A movement in which everyone can play some useful role. The free culture movement stands for reclaiming culture by making it yourself and for reviving democracy by starting in your own digital backyard. CC stands for personal authenticity and diversity in a world of stale, mass-marketed product. It stands for good fun and the joys of sharing. + +Put the CC logo on your blog or music CD or video, and you too can belong to a movement that slyly sticks it to Big Media without getting into an ugly brawl. Don’t get mad, the CC community seems to whisper. Just affiliate with a growing virtual nation of creative renegades. Transcend a rigged game by migrating to a commons of your own making. Build therefore your own world, in the manner of Henry David Thoreau — then imagine its embrace by many others. Imagine it radiating into conventional politics with a refreshing ethic of open accountability and earned rewards, a contempt for coercive business practices and governmental abuses, and an insistence upon transparency, participation, and the consent of the governed. You may be an entrepreneur who just wants to build a profitable business, or a scientist who just wants to find better ways to research Huntington’s disease. The commons has some solutions in these areas, too. This big-tent movement is unabashedly ecumenical. + +This is the vision now exploding around the world anyway. The recurring question in its earliest days, and now, remains — How can we build it out? /{Can}/ it be built out? And how far? For the commoners, just asking the question is halfway to answering it. + +:B~ PART I + +:C~ Harbingers of the Sharing Economy + +1~intro_i [Intro] -# + +The rise of the sharing economy had its roots among the renegades living on the periphery of mainstream culture. At the time, they were largely invisible to one another. They had few ways of making common cause and no shared language for even naming the forces that troubled them. It was the 1990s, after all, a time of alluring mercantile fantasies about the limitless possibilities of the laissez-faire “information superhighway.” Even for those who could pierce the mystifications, the new technologies were so new, powerful, and perplexing that it was difficult to understand their full implications. + +The renegades, while sharing a vision of technological progress, were disturbed by many on-the-ground realities. A small network of hackers, for example, was enraged to learn that software was becoming a closed, proprietary product. Companies could prohibit interested individuals from tinkering with their own, legally purchased software. On both creative and political grounds, this development was odious to Richard Stallman, a brilliant programmer who soon hatched a dream of building a protected kingdom of “free software,” the subject of chapter 1. +={software:proprietary;Stallman, Richard} + +Meanwhile, a loose community of legal scholars and tech activists was becoming alarmed by the antisocial, anti-democratic tendencies of copyright law and digital technology. Scholars such as Lawrence Lessig, James Boyle, and Hal Abelson began to realize that copyright law and software code were acquiring unsuspected powers to redesign our political and social order. They also began to understand the ways in which the public domain is not a wasteland, as conventional minds had long supposed, but a highly generative zone of culture. This intellectual journey is described in chapter 2. +={Abelson, Hal;Boyle, James;Lessig, Lawrence+1} + +Finally, it was becoming painfully apparent to yet another amorphous band of renegades — artists, musicians, writers, scientists, educators, citizens — that copyright law and technological controls were artificially restricting their creative freedoms. With scant public attention, the music, film, and publishing industries were using their clout to protect their archaic business models at the expense of innovation and the commons. This onslaught ultimately provoked one exemplary commoner, Eric Eldred, to team up with legal scholar Lawrence Lessig to mount an unprecedented constitutional challenge to copyright law, the focus of chapter 3. + +None of these surges of innovative dissent was well funded or particularly promising. For the most part, they were improvisational experiments undertaken by public-spirited individuals determined to vindicate their visions for a better society. With the benefit of hindsight, we can now see that while many of these initiatives were only partially successful, each was indispensable to the larger, later task of imagining and building a digital republic to secure basic human freedoms, the subject of Part II. + +1~ 1 IN THE BEGINNING WAS FREE SOFTWARE +={Stallman, Richard+34;General Public License (GPL)+1} + +/{Richard Stallman's mythic struggle to protect the commons of code set the viral spiral in motion.}/ + +The struggle to imagine and invent the software commons, which later set in motion a viral spiral now known as free culture, began with Richard Stallman, a brilliant, eccentric MIT computer programmer. Stallman’s history as a hacker and legal innovator has by now become the stuff of legend. As one of the first people to confront the deep tensions between proprietary control and the public domain in software development, Stallman has achieved that rare pinnacle in the high-tech world, the status of celebrity geek. Besides his programming prowess, he is renowned for devising the GNU General Public License, more commonly known as the GPL, an ingenious legal mechanism to protect shared software code. +={free culture+33} + +Stallman — or RMS, as he likes to be called — has become an iconic figure in the history of free culture in part because he showed courageous leadership in protecting the commons well before anyone else realized that there was even a serious problem. He was a lone voice in the wilderness for at least ten years before the Internet became a mass medium, and so has earned enormous credibility as a leader on matters of free culture. He has also been reviled by some as an autocratic zealot with bad manners and strident rhetoric. + +It is perhaps fitting that Stallman could be mistaken for an Old Testament prophet. He is a shaggy, intense, and fiercely stubborn guy. On his Web site, visitors can find a gag photo of him posed as Saint IGNUcius, with his hand raised in mock genuflection and his head encircled by a gold aureole (held in place by two admiring acoyltes). He has been known to deliver lectures barefoot, sleep on the couch in a borrowed office for weeks at a time, and excoriate admirers for using taboo phrases like “intellectual property” and “copyright protection.” Stallman explains that “intellectual property” incorrectly conflates three distinct bodies of law — copyright, patent, and trademark — and emphasizes individual property rights over public rights. “Copyright protection” is misleading, he says, because it implies a positive, necessary act of /{defending}/ something rather than an acquisitive, aggressive act of a monopolist. Stallman considers /{content}/ to be a disparaging word, better replaced by “works of authorship.” He has even made a list of fourteen words that he urges people to avoid because of their politically misleading valences.~{ Joshua Gray, editor, /{Free Software Free Society: Selected Essays of Richard M. Stallman}/ (Boston: GNU Press, 2002), pp. 190–91. }~ +={authorship;intellectual property} + +Even though Stallman frequently speaks to august academic and scientific gatherings, and meets with the heads of state in developing countries, he resembles a defiant hippie, Yet for his visionary role in developing free software and the free software philosophy, Stallman is treated as if he were a head of state . . . which, in a way, he is. His story has irresistible mythological resonances — the hero’s journey through hardship and scorn, later vindicated by triumph and acclaim. But for many, including his most ardent admirers, Stallman’s stubborn idealism can also be supremely maddening. +={free software} + +His first encounter with the creeping ethic of proprietary control, in the late 1970s, is an oft-told part of his story. The Xerox Corporation had donated an experimental laser printer to the MIT Artificial Intelligence Lab, where Stallman was then a graduate student. The printer was constantly jamming, causing frustration and wasting everyone’s time. Stallman wanted to devise a software fix but he discovered that the source code was proprietary. Determined to find out who was responsible and force them to fix it, he tracked down a computer scientist at Carnegie Mellon University who had supposedly written the code — but the professor refused to help him; he had signed a nondisclosure agreement with Xerox prohibiting him from sharing the code. +={Xerox Corporation+1;software:proprietary+1} + +Stallman considered Xerox’s lockup of code a profound moral offense that violated the integrity of the hacker community. (Among practitioners, /{hacker}/ is a term of respect for an ingenious, resourceful programmer, not an accusation of criminality.) Not only did it prevent people from fixing their own equipment and software, the nondisclosure agreement flouted the Golden Rule. It prohibited sharing with one’s neighbor. The proprietary ethic was not just immoral, by Stallman’s lights, but a barrier to developing great software. +={hackers:use of term} + +By the late 1970s, he had developed a breakthrough text editor, Emacs, in collaboration with a large community of programmers. “Everybody and his brother was writing his own collection of redefined screen-editor commands, a command for everything he typically liked to do,” Stallman wrote. “People would pass them around and improve them, making them more powerful and more general. The collections of redefinitions gradually became system programs in their own right.”~{ Sam Williams, /{Free as in Freedom: Richard Stallman’s Crusade for Free Software}/ (Sebastopol, CA: O’Reilly & Associates 2002), pp. 76–88. }~ Emacs was one of the first software projects to demonstrate the feasibility of large-scale software collaboration and the deep well of innovative ideas that it could yield. Emacs enabled programmers to add new features with great ease, and to constantly upgrade and customize the program with the latest improvements. The Emacs experiment demonstrated that /{sharing}/ and /{interoperability}/ are vital principles for a flourishing online commons. +={Emacs+2;Stallman, Richard:Emacs, and+2} + +Two problems quickly emerged, however. If people did not communicate their innovations back to the group, divergent streams of incompatible code would produce a Tower of Babel effect. Second, if the code and its derivations were not shared with everyone, the usefulness of the program would slowly decline. The flow of innovation would dissipate. + +To solve these problems, Stallman invented a user contract that he called the “Emacs Commune.” It declared to all users that Emacs was “distributed on a basis of communal sharing, which means that all improvements must be given back to me to be incorporated and distributed.” He enforced the provisions of the contract with an iron hand. As Stallman biographer Sam Williams writes, when the administrators for the MIT Laboratory for Computer Science instituted a new password system — which Stallman considered an antisocial power grab — he “initiated a software ‘strike,’ refusing to send lab members the latest version of Emacs until they rejected the security system on the lab’s computers. The move did little to improve Stallman’s growing reputation as an extremist, but it got the point across: commune members were expected to speak up for basic hacker values.” +={Williams, Sam} + +Stallman was groping for a way to sustain the hacker ethic of community and sharing in the face of new types of top-down control. Some programmers were beginning to install code that would turn off access to a program unless money was paid. Others were copyrighting programs that had been developed by the community of programmers. Bill Gates, as an undergraduate at Harvard in the late 1970s, was nearly expelled for using publicly funded labs to create commercial software. He was forced to put his code into the public domain, whereupon he left the university to found an obscure Albuquerque company called Micro-Soft. +={authorship:community access;Gates, Bill;hackers:use of term+5} + +Software was simply becoming too lucrative for it to remain a shared resource — an attitude that enraged Stallman. He was determined to preserve the integrity of what we would now call the software commons. It was an immense challenge because copyright law makes no provisions for community ownership of creative work beyond “joint authorship” among named individuals. Stallman wanted to devise a way to ensure that all the talent and innovation created by commoners would /{stay}/ in the commons. The idea that an outsider — a university administrator, software entrepreneur, or large company — could intrude upon a hacker community and take its work was an appalling injustice to Stallman. +={authorship:joint;copyright law:community authorship vs.;commons:copyright law vs.} + +Yet this was precisely what was happening to the hacker community at MIT’s AI Lab in the early 1980s. It was slowly disintegrating as one programmer after another trooped off to join commercial software ventures; the software itself was becoming annexed into the marketplace. Software for personal computers, which was just then appearing on the market, was sold as a proprietary product. This meant that the source code — the deep design architecture of the program that operated everything — was inaccessible.~{ Steven Levy, /{Hackers: Heroes of the Computer Revolution}/ (New York: Delta, 1993), pp. 425, 427. }~ Perhaps most disturbing to Stallman at the time was that the leading mainframe operating system, Unix, was locking up its source code. Unix had been developed by AT&T with generous federal funding, and had been generally available for free within academic computing circles. At the time, most mainframe software was given away to encourage buyers to purchase the computer hardware. But when the Department of Justice broke up AT&T in 1984 to spur competition, it also enabled AT&T to enter other lines of business. Naturally, the company was eager to maximize its profits, so in 1985 it began to charge a licensing fee for Unix. +={AT&T;Unix;software:source code for} + +Stallman grieved at the disintegration of the hacker community at the AI Lab as closed software programs inexorably became the norm. As he wrote at the time: + +_1 The people remaining at the lab were the professors, students, and non-hacker researchers, who did not know how to maintain the system, or the hardware, or want to know. Machines began to break and never be fixed; sometimes they just got thrown out. Needed changes in software could not be made. The non-hackers reacted to this by turning to commercial systems, bringing with them fascism and license agreements. I used to wander through the lab, through the rooms so empty at night where they used to be full, and think, “Oh my poor AI lab! You are dying and I can’t save you.” + +Stallman compared himself to Ishi, “the last survivor of a dead [Native American] culture. And I don’t really belong in the world anymore. And in some ways I feel I ought to be dead.” + +Stallman decided to leave MIT — why stay? — but with a brash plan: to develop a free software operating system that would be compatible with Unix. It would be his brave, determined effort to preserve the hacker ethic. He dubbed his initiative the GNU Project, with “GNU” standing for “GNU’s Not Unix” — a recursive hacker’s pun. He also started, in 1985, the Free Software Foundation to help develop GNU software projects and distribute them for free to anyone. (The foundation now occupies a fifth-floor office on a narrow commercial street in downtown Boston.) +={Unix;free software;Free Software Foundation;GNU Project+3;Stallman, Richard:free software, and|GNU Project, and+3} + +The Emacs Commune experience had taught Stallman about the limits of informal social norms in protecting the software commons. It also revealed the difficulties of being the central coordinator of all code changes. This time, in developing a set of software programs for his GNU Project, Stallman came up with a better idea — a legally enforceable license. The goal was to ensure that people could have free access to all derivative works and share and reuse software. The licensing rights were based on the rights of ownership conferred by copyright law. +={Emacs;Stallman, Richard:Emacs, and;authorship:community access;copyright law:community authorship vs.+2|licensing rights+2} + +Stallman called his license the GNU General Public License, or GPL. He puckishly referred to it as “copyleft,” and illustrated it with a reverse copyright symbol (a backward c in a circle). Just as programmers pride themselves on coming up with ingenious hacks to solve a software problem, so the GPL is regarded as a world-class hack around copyright law. Copyright law has no provisions for protecting works developed by a large community of creators. Nor does it offer a way to prevent works from being made proprietary. Indeed, that’s the point of copyright law — to create private property rights. +={software:proprietary;copyright law:property rights, and;General Public License (GPL)+14;property rights, and copyright law;Stallman, Richard:GPL, and+14} + +The GPL bypasses these structural limitations of copyright law by carving out a new zone of collective ownership. A work licensed under the GPL permits users to run any program, copy it, modify it, and distribute it in any modified form. The only limitation is that any derivative work must also be licensed under the GPL. This provision of the GPL means that the license is /{automatically}/ applied to any derivative work, and to any derivative of a derivative, and so on — hence its viral nature.~[* Stallman told me he considers it “a common calumny to compare the GNU GPL to a virus. That is not only insulting (I have a virus infection in my throat right now and it is no fun), it is also inaccurate, because the GPL does not spread like a virus. It spreads like a spider plant: if you cut off a piece and plant it over here, it grows over here.]~ The GPL ensures that the value created by a given group of commoners shall stay within the commons. To guarantee the viral power of the license, users of GPL’d works cannot modify the licensing terms. No one has to pay to use a GPL’d work — but as a condition for using it, people are legally obliged to license any derivative versions under the GPL. In this way, a GPL’d work is born and forever protected as “shareable.” +={collective ownership;General Public License (GPL):viral nature of;software:user freedoms;Stallman, Richard:freedom, and} + +Version 1.0 of the GPL was first published in 1989. It was significant, writes Sam Williams, because it “demonstrated the intellectual similarity between legal code and software code. Implicit within the GPL’s preamble was a profound message: instead of viewing copyright law with suspicion, hackers should view it as yet another system begging to be hacked.”~{ Williams, /{Free as in Freedom}/, p. 127. }~ The GPL also served to articulate, as a matter of law, the value of collaborative work. A universe of code that might previously have been regarded as part of the “public domain” — subject to free and unrestricted access — could now be seen in a subtly different light. +={authorship:community access;Williams, Sam;public domain: GPL, and} + + +A GPL’d work is not part of the public domain, because the public domain has no rules constraining how a work may be used. Works in the public domain are open to anyone. The GPL is similar, but with one very important restriction: no private appropriation is allowed. Any follow-on uses must remain free for others to use (a provision that some property rights libertarians regard as “coercive”). Works in the public domain, by contrast, are vulnerable to privatization because someone need only add a smidgen of “originality” to the work and she would own a copyright in the resulting work. A GPL’d work and its derivatives stay free forever — because anyone who tries to privatize a GPL’d work is infringing on the license. + +For Stallman, the GPL became the symbol and tool for enacting his distinct political vision of “freedom.” The license rests on four kinds of freedoms for users of software (which he lists using computer protocols): +={software:user freedoms+4;Stallman, Richard:freedom, and+5} + +_1 Freedom 0: The freedom to run the program for any purpose; + +_1 Freedom 1: The freedom to study how the program works, and to adapt it to your needs. (Access to the source code is a precondition for this); +={authorship:community access} + +_1 Freedom 2: The freedom to redistribute copies so you can help your neighbor; and + +_1 Freedom 3: The freedom to improve the program, and release your improvements to the public, so that the whole community benefits. (Access to the source code is a precondition for this.) +={authorship:community access} + +Stallman has become an evangelist for the idea of freedom embodied in all the GNU programs. He refuses to use any software programs that are not “free,” and he has refused to allow his appearances to be Webcast if the software being used was not “free.” “If I am to be an honest advocate for free software,” said Stallman, “I can hardly go around giving speeches, then put pressure on people to use nonfree software. I’d be undermining my own cause. And if I don’t show that I take my principles seriously, I can’t expect anybody else to take them seriously.”~{ Stallman at MIT forum, “Copyright and Globalization in the Age of Computer Networks,” April 19, 2001, available at http://media-in-transition.mit.edu/forums/copyright/transcript.html. }~ +={Stallman, Richard:free software, and+2} + +Stallman has no problems with people making money off software. He just wants to guarantee that a person can legally use, copy, modify, and distribute the source code. There is thus an important distinction between software that is commercial (possibly free) and software that is proprietary (never free). Stallman tries to explain the distinction in a catchphrase that has become something of a mantra in free software circles: /{“free as in ‘free speech,’ not as in ‘free beer.’”}/ The point is that code must be freely accessible, not that it should be free of charge. (This is why “freeware” is not the same as free software. Freeware may be free of charge, but it does not necessarily make its source code accessible.) +={freeware vs. free software;software:proprietary|source code for} + +Eben Moglen, a professor of law at Columbia University and general counsel for the Free Software Foundation since 1994, calls the provisions of the GPL “elegant and simple. They respond to the proposition that when the marginal cost of goods is zero, any nonzero cost of barbed wire is too high. That’s a fact about the twentyfirst century, and everybody had better get used to it. Yet as you know, there are enormous cultural enterprises profoundly committed to the proposition that more and more barbed wire is necessary. And their basic strategy is to get that barbed wire paid for by the public everywhere.”~{ Eben Moglen, “Freeing the Mind: Free Software and the Death of Proprietary Culture,” June 29, 2003, available at http://emoglen.law/columbia.edu/publications/maine-speech.html. }~ +={Moglen, Eben;Free Software Foundation} + +The GPL truly was something new under the sun: a legally enforceable tool to vouchsafe a commons of software code. The license is based on copyright law yet it cleverly turns copyright law against itself, limiting its reach and carving out a legally protected zone to build and protect the public domain. In the larger scheme of things, the GPL was an outgrowth of the “gift economy” ethic that has governed academic life for centuries and computer science for decades. What made the GPL different from these (abridgeable) social norms was its legal enforceability. +={gift economy;Internet:gift economy of+1;General Public License (GPL):legal enforceability of} + +The GPL might well have remained an interesting but arcane curiosity of the software world but for two related developments: the rise of the Internet in the 1990s and software’s growing role as core infrastructure in modern society. As the computer and Internet revolutions have transformed countless aspects of daily life, it has become evident that software is not just another product. Its design architecture is seminally important to our civic freedoms and democratic culture. Or as Lawrence Lessig famously put it in his 1999 book /{Code}/, “code is law.” Software can affect how a business can function, how information is organized and presented, and how individuals can think, connect with one another, and collaborate. Code invisibly structures people’s relationships, and thus serves as a kind of digital constitutional order. As an economic force, software has become as critical as steel or transportation in previous eras: a building block for the basic activities of the economy, businesses, households, and personal life. +={Lessig, Lawrence:Code and Other Laws of Cyberspace;code:as law;free culture:Internet, of the+2;law:code as;Internet:rise of;software:core infrastructure, as} + +Stallman’s atavistic zeal to preserve the hacker community, embodied in the GPL, did not immediately inspire others. In fact, most of the tech world was focused on how to convert software into a marketable product. Initially, the GPL functioned like a spore lying dormant, waiting until a more hospitable climate could activate its full potential. Outside of the tech world, few people knew about the GPL, or cared.~[* The GPL is not the only software license around, of course, although it was, and remains, the most demanding in terms of protecting the commons of code. Other popular open-source licenses include the MIT, BSD, and Apache licenses, but each of these permit, but do not require, that the source code of derivative works also be freely available. The GPL, however, became the license used for Linux, a quirk of history that has had far-reaching implications.]~ And even most techies were oblivious to the political implications of free software. +={hackers:community of} + +Working under the banner of the Free Software Foundation, Stallman continued through the 1980s and 1990s to write a wide number of programs needed to build a completely free operating system. But just as Lennon’s music was better after finding McCartney, Stallman’s free software needed to find Linus Torvalds’s kernel for a Unix-like operating system. (A kernel is the core element of an operating system that controls how the various applications and utilities that comprise the system will run.) +={Free Software Foundation;Torvalds, Linus+1;Unix+1} + +In 1991, Torvalds was a twenty-one-year-old computer science student at the University of Helsinki, in Finland. Frustrated by the expense and complexity of Unix, and its inability to work on personal computers, Torvalds set out to build a Unix-like operating system on his IBM AT, which had a 33-megahertz processor and four megabytes of memory. Torvalds released a primitive version of his program to an online newsgroup and was astonished when a hundred hackers responded within a few months to offer suggestions and additions. Over the next few years, hundreds of additional programmers joined the project, which he named “Linux” by combining his first name, “Linus,” with “Unix.” The first official release of his program came in 1994.~{ One useful history of Torvalds and Linux is Glyn Moody, /{Rebel Code: Inside Linux and the Open Source Revolution}/ (Cambridge, MA: Perseus, 2001). }~ +={hackers:community of+3;Linux:development of+7} + +The Linux kernel, when combined with the GNU programs developed by Stallman and his free software colleagues, constituted a complete computer operating system — an astonishing and unexpected achievement. Even wizened computer scientists could hardly believe that something as complex as an operating system could be developed by thousands of strangers dispersed around the globe, cooperating via the Internet. Everyone assumed that a software program had to be organized by a fairly small group of leaders actively supervising the work of subordinates through a hierarchical authority system — that is, by a single corporation. Yet here was a virtual community of hackers, with no payroll or corporate structure, coming together in a loose, voluntary, quasi-egalitarian way, led by leaders who had earned the trust and respect of some highly talented programmers. + +The real innovation of Linux, writes Eric S. Raymond, a leading analyst of the technology, was “not technical, but sociological”: +={Linux:sociological effect of+1} + +_1 Linux was rather casually hacked on by huge numbers of volunteers coordinating only through the Internet. Quality was maintained not by rigid standards or autocracy but by the naively simple strategy of releasing every week and getting feedback from hundreds of users within days, creating a sort of rapid Darwinian selection on the mutations introduced by developers. To the amazement of almost everyone, this worked quite well.~{ Eric S. Raymond, “A Brief History of Hackerdom,” http://www.catb.org/~est/writings/cathedral-bazaar/hacker-history/ar01s06.html. }~ + +The Free Software Foundation had a nominal project to develop a kernel, but it was not progressing very quickly. The Linux kernel, while primitive, “was running and ready for experimentation,” writes Steven Weber in his book /{The Success of Open Source}/: “Its crude functionality was interesting enough to make people believe that it could, with work, evolve into something important. That promise was critical and drove the broader development process from early on.”~{ Steven Weber, /{The Success of Open Source}/ (Cambridge, MA: Harvard University Press, 2004), p. 100. }~ +={Weber, Steven:The Success of Open Source;Free Software Foundation} + +There were other powerful forces driving the development of Linux. Throughout the 1990s, Microsoft continued to leverage its monopoly grip over the operating system of personal computers, eventually attracting the attention of the U.S. Department of Justice, which filed an antitrust lawsuit against the company. Software competitors such as Hewlett-Packard, Sun Microsystems, and IBM found that rallying behind an open-source alternative — one that was legally protected against being taken private by anyone else— offered a terrific way to compete against Microsoft. +={Hewlett-Packard;IBM:open source, and;Microsoft:antitrust lawsuit against|competition against+2} + +Meanwhile, the once-free Unix software program was becoming a fragmented mess. So many different versions of Unix were being sold that users were frustrated by the proliferation of incompatible proprietary versions. In the words of a Sun Microsystems executive at the time, users were unhappy with the “duplication of effort around different implementations, leading to high prices; poor compatibility; and worst of all, slower development as each separate Unix vendor had to solve the same kinds of problems independently. Unix has become stagnant. . . .”~{ Williams, /{Free as in Freedom}/, p. 100.}~ +={Unix+1;Sun Microsystems} + +Given these problems, there was great appeal in a Unix-like operating system with freely available source code. Linux helped address the fragmentation of Unix implementations and the difficulties of competing against the Microsoft monopoly. Knowing that Linux was GPL’d, hackers, academics, and software companies could all contribute to its development without fear that someone might take it private, squander their contributions, or use it in hostile ways. A commons of software code offered a highly pragmatic solution to a market dysfunction. +={General Public License (GPL):Linux, and;GNU/Linux+5;Linux:GPL, and} + +Stallman’s GNU Project and Torvalds’s Linux software were clearly synergistic, but they represented very different styles. The GNU Project was a slower, more centrally run project compared to the “release early and often” developmental approach used by the Linux community. In addition, Stallman and Torvalds had temperamental and leadership differences. Stallman has tended to be more overbearing and directive than Torvalds, who does not bring a political analysis to the table and is said to be more tolerant of diverse talents.~{ Torvalds included a brief essay, “Linux kernel management style,” dated October 10, 2004, in the files of the Linux source code, with the annotation, “Wisdom passed down the ages on clay tablets.” It was included as an epilogue in the book /{Open Life: The Philosophy of Open Source}/, by Henrik Ingo, and is available at http://www.openlife.cc/node/43. }~ +={Torvalds, Linus;GNU Project;Stallman, Richard:GNU Project, and} + +So despite their natural affinities, the Free Software Community and the Linux community never found their way to a grand merger. Stallman has applauded Linux’s success, but he has also resented the eclipse of GNU programs used in the operating system by the Linux name. This prompted Stallman to rechristen the program “GNU/Linux,” a formulation that many people now choose to honor. + +Yet many hackers, annoyed at Stallman’s political crusades and crusty personal style, committed their own linguistic raid by renaming “free software” as “open source software,” with a twist. As GNU/Linux became more widely used in the 1990s, and more corporations began to seriously consider using it, the word /{free}/ in “free software” was increasingly seen as a problem. The “free as in free speech, not as in free beer” slogan never quite dispelled popular misconceptions about the intended sense of the word /{free}/. Corporate information technology (IT) managers were highly wary about putting mission-critical corporate systems in the hands of software that could be had for /{free}/. Imagine telling the boss that you put the company’s fate in the hands of a program you downloaded from the Internet for free! +={free software:open source software, as+6;software:open source+6;free software:uses of term+6} + +Many corporate executives clearly recognized the practical value of free software; they just had no interest in joining Stallman’s ideological crusade or being publicly associated with him. They did not necessarily want to become champions of the “four freedoms” or the political vision implicit in free software. They simply wanted code that works well. As Eric Raymond wrote: “It seemed clear to us in retrospect that the term ‘free software’ had done our movement tremendous damage over the years. Part of this stemmed from the well-known ‘free speech/free beer’ ambiguity. Most of it came from something worse — the strong association of the term ‘free software’ with hostility to intellectual property rights, communism, and other ideas hardly likely to endear themselves to an MIS [management information systems] manager.”~{ Eric S. Raymond, “The Revenge of the Hackers,” in Chris DiBona, Sam Ockman, and Mark Stone, eds., /{Open Sources: Voices from the Open Source Revolution}/ (Sebastopol, CA: O’Reilly & Associates, 1999), p. 212. }~ +={Stallman, Richard:free software, and+5;Raymond, Eric S.} + +One response to this issue was the rebranding of free software as “open-source” software. A number of leading free software programmers, most notably Bruce Perens, launched an initiative to set forth a consensus definition of software that would be called “opensource.” At the time, Perens was deeply involved with a community of hackers in developing a version of Linux known as the Debian GNU/Linux distribution. Perens and other leading hackers not only wanted to shed the off-putting political dimensions of “free software,” they wanted to help people deal with the confusing proliferation of licenses. A lot of software claimed to be free, but who could really tell what that meant when the terms were so complicated and legalistic? +={Debian GNU/Linux distribution;Perens, Bruce} + +The Open Source Initiative, begun in 1998, helped solve this problem by enumerating criteria that it considered significant in judging a program to be “open.”~{ http://www.opensource.org. }~ Its criteria, drawn from the Debian community, helped standardize and stabilize the definition of open-source software. Unlike the GPL, permissive software licenses such as BSD and MIT /{allow}/ a program to be freely copied, modified, and distributed but don’t /{require}/ it. A programmer can choose to make a proprietary derivative without violating the license. +={Open Source Initiative+2} + +The Open Source Initiative has focused more on the practical, technical merits of software than on the moral or political concerns that have consumed Stallman. Free software, as Stallman conceived it, is about building a cohesive moral community of programmers dedicated to “freedom.” The backers of open-source software are not necessarily hostile to those ideals but are more interested in building reliable, marketable software and improving business performance. As Elliot Maxwell described the free software/open source schism: +={Maxwell, Elliot+1} + +_1 [S]upporters of the Open Source Initiative were willing to acknowledge a role for proprietary software and unwilling to ban any link between open-source software and proprietary software. Richard Stallman aptly characterized the differences: “We disagree on the basic principles but agree more or less on the practical recommendations. So we can and do work together on many specific projects.”~{ Elliot Maxwell, citing Wikipedia entry on “Open Source Movement,” in “Open Standards Open Source and Open Innovation,” in /{Innovations: Technology, Governance, Globalization}/ 1, no. 3 (Summer 2006), p. 134, note 56. }~ + +The philosophical rift between free software and open-source software amounts to a “friendly schism,” a set of divergent approaches that has been bridged in some respects by language.~{ Richard Stallman has outlined his problems with the “open source” definition of software development in an essay, “Why ‘Open Source’ Misses the Point of Free Software,” http://www.gnu.org/philosophy/open-source-misses-thepoint.html. }~ Observers often use the acronym FOSS to refer to both free software and open-source software, or sometimes FLOSS — the L stands for the French word /{libre}/, which avoids the double meaning of the English word /{free}/. Whatever term is used, free and open-source software has become a critical tool for making online marketplaces more competitive, and for creating open, accessible spaces for experimentation. In his classic essay, “The Cathedral and the Bazaar,” Eric Raymond explains how the licenses help elicit important noneconomic, personal energies: +={FOSS/FLOSS+3;free software:FOSS/FLOSS+3;Raymond, Eric S.+1;Linux:sociological effect of+1} + + +_1 The Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximize utility which in the process produces a selfcorrecting spontaneous order more elaborate and efficient than any amount of central planning could have achieved. . . . The utility function Linux hackers are maximizing is not classically economic, but is the intangible of their own ego satisfaction and reputation among other hackers.~{ Eric Raymond, “The Cathedral and the Bazaar,” available at http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ar01s11.html. }~ + +It turns out that an accessible collaborative process, FOSS, can elicit passions and creativity that entrenched markets often cannot. In this respect, FOSS is more than a type of freely usable software; it reunites two vectors of human behavior that economists have long considered separate, and points to the need for new, more integrated theories of economic and social behavior. +={free software:economic effects of+1} + +FOSS represents a new breed of “social production,” one that draws upon social energies that neoclassical economists have long discounted or ignored. It mobilizes the personal passions and moral idealism of individuals, going beyond the overt economic incentives that economists consider indispensable to wealth creation. The eighteenth-century economist Adam Smith would be pleased. He realized, in his 1776 book /{The Wealth of Nations}/, that people are naturally given to “truck, barter and exchange” — but he also recognized, in his earlier /{The Theory of Moral Sentiments}/, written in 1759, that people are motivated by deep impulses of human sympathy and morality. Neoclassical economists have long segregated these as two divergent classes of human behavior, regarding altruism and social sympathies as subordinate to the rational, utility-maximizing, selfserving behavior. FOSS embodies a new synthesis — and a challenge to economists to rethink their crude model of human behavior, /{Homo economicus}/. Free software may have started as mere software, but it has become an existence proof that individual and collective goals, and the marketplace and the commons, are not such distinct arenas.~{ I am grateful to Nicholas Gruen for this insight, taken from his essay “Geeks Bearing Gifts: Open Source Software and Its Enemies,” in /{Policy}/ 21, no. 2 (Winter 2005), pp. 39–48. }~ They are tightly intertwined, but in ways we do not fully understand. This is a golden thread that will reappear in later chapters. +={Smith, Adam:The Theory of Moral Sentiments;social production+6} + +Red Hat, a company founded in 1993 by Robert Young, was the first to recognize the potential of selling a custom version (or “distribution”) of GNU/Linux as a branded product, along with technical support. A few years later, IBM became one of the first large corporations to recognize the social realities of GNU/Linux and its larger strategic and competitive implications in the networked environment. In 1998 IBM presciently saw that the new software development ecosystem was becoming far too variegated and robust for any single company to dominate. It understood that its proprietary mainframe software could not dominate the burgeoning, diversified Internet-driven marketplace, and so the company adopted the open-source Apache Web server program in its new line of WebSphere business software. +={Red Hat;Young, Robert;GNU/Linux:IBM, and+1|Red Hat, and;IBM:GNU/Linux, and+1;Apache Web server;open source software:functions of+2} + +It was a daring move that began to bring the corporate and open-source worlds closer together. Two years later, in 2000, IBM announced that it would spend $1 billion to help develop GNU/Linux for its customer base. IBM shrewdly realized that its customers wanted to slash costs, overcome system incompatibilities, and avoid expensive technology “lock-ins” to single vendors. GNU/Linux filled this need well. IBM also realized that GNU/Linux could help it compete against Microsoft. By assigning its property rights to the commons, IBM could eliminate expensive property rights litigation, entice other companies to help it improve the code (they could be confident that IBM could not take the code private), and unleash a worldwide torrent of creative energy focused on GNU/Linux. Way ahead of the curve, IBM decided to reposition itself for the emerging networked marketplace by making money through tech service and support, rather than through proprietary software alone.~{ Andrew Leonard, “How Big Blue Fell for Linux,” Salon.com, September 12, 2000, available at http://www.salon.com/tech/fsp/2000/09/12/chapter_7_part_one.print.html. The competitive logic behind IBM’s moves are explored in Pamela Samuelson, “IBM’s Pragmatic Embrace of Open Source,” /{Communications of the ACM}/ 49, no. 21 (October 2006), and Robert P. Merges, “A New Dynamism in the Public Domain,” /{University of Chicago Law Review}/ 71, no. 183 (Winter 2004). }~ +={Microsoft:competition against} + +It was not long before other large tech companies realized the benefits of going open source. Amazon and eBay both saw that they could not affordably expand their large computer infrastructures without converting to GNU/Linux. GNU/Linux is now used in everything from Motorola cell phones to NASA supercomputers to laptop computers. In 2005, /{BusinessWeek}/ magazine wrote, “Linux may bring about the greatest power shift in the computer industry since the birth of the PC, because it lets companies replace expensive proprietary systems with cheap commodity servers.”~{ Steve Hamm, “Linux Inc.,” /{BusinessWeek}/, January 31, 2005. }~ As many as one-third of the programmers working on open-source projects are corporate employees, according to a 2002 survey.~{ Cited by Elliot Maxwell in “Open Standards Open Source and Open Innovation,” note 80, Berlecon Research, /{Free/Libre Open Source Software: Survey and Study — Firms’ Open Source Activities: Motivations and Policy Implications}/, FLOSS Final Report, Part 2, at www.berlecon.de/studien/downloads/200207FLOSS _Activities.pdf. }~ +={Amazon;eBay} + +With faster computing speeds and cost savings of 50 percent or more on hardware and 20 percent on software, GNU/Linux has demonstrated the value proposition of the commons. Open source demonstrated that it can be cheaper and more efficacious to collaborate in the production of a shared resource based on common standards than to strictly buy and own it as private property. +={commons:value proposition of;value:creation of+1:see also Great Value Shift} + +But how does open source work without a conventional market apparatus? The past few years have seen a proliferation of sociological and economic theories about how open-source communities create value. One formulation, by Rishab Ghosh, compares free software development to a “cooking pot,” in which you can give a little to the pot yet take a lot — with no one else being the poorer. “Value” is not measured economically at the point of transaction, as in a market, but in the nonmonetary /{flow}/ of value that a project elicits (via volunteers) and generates (through shared software).~{ Rishab Aiyer Ghosh, “Cooking Pot Markets and Balanced Value Flows,” in Rishab Aiyer Ghosh, ed., /{CODE: Collaborative Ownership and the Digital Economy}/ (Cambridge, MA: MIT Press, 2005), pp. 153–68. }~ Another important formulation, which we will revisit later, comes from Harvard law professor Yochai Benkler, who has written that the Internet makes it cheap and easy to access expertise anywhere on the network, rendering conventional forms of corporate organization costly and cumbersome for many functions. Communities based on social trust and reciprocity are capable of mobilizing creativity and commitment in ways that market incentives often cannot — and this can have profound economic implications.~{ See, e.g., Benkler, “Coase’s Penguin, or Linux and the Nature of the Firm,” /{Yale Law Journal}/ 112, no. 369 (2002); Benkler, “ ‘Sharing Nicely’: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production,” Yale Law Journal 114, no. 273 (2004).}~ Benkler’s analysis helps explain how a global corps of volunteers could create an operating system that, in many respects, outperforms software created by a well-paid army of Microsoft employees. +={Benkler, Yochai:open networks, on;FOSS/FLOSS;free software:FOSS/FLOSS;Ghosh, Rishab;open source software:economic implications of|uses of term+4} + +A funny thing happened to free and open-source software as it matured. It became hip. It acquired a cultural cachet that extends well beyond the cloistered precincts of computing. “Open source” has become a universal signifier for any activity that is participatory, collaborative, democratic, and accountable. Innovators within filmmaking, politics, education, biological research, and drug development, among other fields, have embraced the term to describe their own attempts to transform hidebound, hierarchical systems into open, accessible, and distributed meritocracies. Open source has become so much of a cultural meme — a self-replicating symbol and idea — that when the Bikram yoga franchise sought to shut down unlicensed uses of its yoga techniques, dissident yoga teachers organized themselves into a nonprofit that they called Open Source Yoga Unity. To tweak the supremacy of Coca-Cola and Pepsi, culture jammers even developed nonproprietary recipes for a cola drink and beer called “open source cola” and “open source beer.”~{ Open Source Yoga Unity, http://www.yogaunity.org; open-source cola, http://alfredo.octavio.net/soft_drink_formula.pdf; open-source beer, Vores OI (Danish for “Our Beer”), http://en.wikipedia.org/wiki/Vores_%C3%981. See also http://freebeer.org/blog and http://www.project21.ch/freebeer. }~ +={free software:uses of term+5} + +Stallman’s radical acts of dissent in the 1980s, regarded with bemusement and incredulity at the time, have become, twenty-five years later, a widely embraced ideal. Small-/{d}/ democrats everywhere invoke open source to lambaste closed and corrupt political systems and to express their aspirations for political transcendence. People invoke open source to express a vision of life free from overcommercialization and corporate manipulation. The term enables one to champion bracing democratic ideals without seeming naïve or flaky because, after all, free software is solid stuff. Moreover, despite its image as the software of choice for granola-loving hippies, free and open-source software is entirely compatible with the commercial marketplace. How suspect can open source be when it has been embraced by the likes of IBM, Hewlett-Packard, and Sun Microsystems? +={Stallman, Richard:influence of|free software, and+4;Hewlett-Packard;IBM:open source, and;Sun Microsystems} + +The appeal of “openness” has become so great that it is sometimes difficult to recognize that /{limits}/ on openness are not only necessary but desirable. The dark side of openness is the spam that clogs the Internet, the ability to commit fraud and identity theft, and the opportunities for disturbed adults to prey sexually upon children. Still, the virtues of an open environment are undeniable; what is more difficult is negotiating the proper levels of openness for a given realm of online life. +={openness:limitations of} + +Nearly twenty years after the introduction of the GPL, free software has expanded phenomenally. It has given rise to countless FOSS software applications, many of which are major viral hits such as Thunderbird (e-mail), Firefox (Web browser), Ubuntu (desktop GNU/Linux), and Asterisk (Internet telephony). FOSS has set in motion, directly or indirectly, some powerful viral spirals such as the Creative Commons licenses, the iCommons/free culture movement, the Science Commons project, the open educational resource movement, and a new breed of open-business ventures, Yet Richard Stallman sees little connection between these various “open” movements and free software; he regards “open” projects as too vaguely defined to guarantee that their work is truly “free” in the free software sense of the term. “Openness and freedom are not the same thing,” said Stallman, who takes pains to differentiate free software from open-source software, emphasizing the political freedoms that lie at the heart of the former.~{ Interview with Richard Stallman, January 21, 2008. }~ +={FOSS/FLOSS;free software:FOSS/FLOSS|expansion of;Stallman, Richard:influence of|freedom, and} + +Any revolution is not just about new tools and social practices, however. It is also about developing new ways of understanding the world. People must begin to /{see}/ things in a new perspective and /{talk}/ with a new vocabulary. In the 1990s, as Disney, Time Warner, Viacom, and other media giants realized how disruptive the Internet might be, the public was generally oblivious that it might have a direct stake in the outcome of Internet and copyright policy battles. Big Media was flexing its muscles to institute all sorts of self-serving, protectionist fixes — copy-protection technologies, broader copyright privileges, one-sided software and Web licenses, and much more — and most public-interest groups and civic organizations were nowhere to be seen. + +Fortunately, a small but fierce and keenly intelligent corps of progressive copyright scholars were beginning to discover one another in the 1990s. Just as the hacker community had had to recognize the enclosure of its commons of software code, and embrace the GPL and other licenses as defensive remedies, so progressive copyright scholars and tech activists were grappling with how to defend against a related set of enclosures, The relentless expansion of copyright law was eroding huge swaths of the public domain and fair use doctrine. Tackling this problem required asking a question that few in the legal or political establishments considered worth anyone’s time — namely, What’s so valuable about the public domain, anyway? + +1~ 2 THE DISCOVERY OF THE PUBLIC DOMAIN +={public domain+93} + +/{How a band of irregulars demonstrated that the public domain is enormously valuable after all.}/ + +For decades, the public domain was regarded as something of a wasteland, a place where old books, faded posters, loopy music from the early twentieth century, and boring government reports go to die. It was a dump on the outskirts of respectable culture. If anything in the public domain had any value, someone would sell it for money. Or so goes the customary conception of the public domain. + +Jack Valenti, the longtime head of the Motion Picture Association of America, once put it this way: “A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. Who, then, will invest the funds to renovate and nourish its future life when no one owns it?”~{ Jack Valenti, “A Plea for Keeping Alive the U.S. Film Industry’s Competitive Energy, ” testimony on behalf of the Motion Picture Association of America to extend the term of copyright protection, Senate Judiciary Committee, September 20, 1995, at http://instructors.cwrl.utexas.edu/~martin/Valenti.pdf. }~ (Valenti was arguing that longer copyright terms would give film studios the incentive to digitize old celluloid films that would otherwise enter the public domain and physically disintegrate.) +={Valenti, Jack} + +One of the great, unexplained mysteries of copyright law is how a raffish beggar grew up to be King Midas. How did a virtually ignored realm of culture — little studied and undertheorized— become a subject of intense scholarly interest and great practical importance to commoners and businesses alike? How did the actual value of the public domain become known? The idea that the public domain might be valuable in its own right — and therefore be worth protecting — was a fringe idea in the 1990s and before. So how did a transformation of legal and cultural meaning occur? +={public domain:emergence of+4|copyright law, and+3} + +Unlike Richard Stallman’s crusade to create a sustainable public domain of code,~[* Free software constitutes a “sustainable public domain” because the General Public License protects the code and its derivatives from private appropriation yet otherwise makes the code free for anyone to use. The public domain, by contrast, is vulnerable to private appropriation in practice if a company has sufficient market power (e.g., Disney’s appropriation of fairy tales) or if it uses the public domain to make derivative works and then copyrights them (e.g., vendors who mix government data with proprietary enhancements).]~ the discovery of the public domain for cultural works was not led by a single protagonist or group. It emerged over time through a loose network of legal scholars, techies, activists, and some businesses, who were increasingly concerned about worrisome expansions of copyright and patent law. Slowly, a conversation that was occurring in a variety of academic and tech communities began to intensify, and then coalesce into a more coherent story. +={copyright law: expansion of} + +Scholarship about copyright law is not exactly gripping stuff. But it has played an important role in the viral spiral. Before anyone could begin to imagine how an online commons could be structured and protected, someone needed to explain how intellectual property law had become “uncontrolled to the point of recklessness” — as law professor David Lange put it in 1981, well before the proprietarian explosion of the late 1980s and 1990s. +={Lange, David;copyright law:scholarship about} + +Fortunately, a new breed of public-spirited professors was reaching a critical mass just as the Internet was becoming culturally important. These professors, collaborating with programmers and activists, were among the first to understand the ways in which copyright law, historically an arcane backwater of law, was starting to pose serious threats to democracy-loving citizens and Internet users. The full complexity of this legal literature over the past generation cannot be unpacked here, but it is important to understand how progressive copyright scholarship played a critical role in identifying dangerous trends in law and technology — and in constructing a new narrative for what copyright law should be. + +This legal scholarship reconceptualized the public domain— then a vague notion of nonproperty — and developed it into an affirmative theory. It gave the public domain sharper definition and empirical grounding. Thinkers like Yochai Benkler (Harvard Law School), Lawrence Lessig (Stanford Law), and James Boyle (Duke Law) developed bracing new theories that recognize the power of social communities, and not just the individual, in the creative process. Others, such as Julie Cohen (Georgetown Law Center) and Pamela Samuelson (Boalt Hall), have respectively explored the need to develop a new social theory of creative practice~{ Julie E. Cohen, “Copyright, Commodification and Culture: Locating the Public Domain,” in Lucie Guibaut and P. Bernt Hugenholtz eds. /{The Future of the Public Domain: Identifying the Commons in Information Law}/ (The Netherlands: Kluwer Law International, 2006), pp. 121–66. }~ and the theoretical challenges of “mapping” the public domain.~{ Pamela Samuelson, “Challenges in Mapping the Public Domain,” in Guibault and Hugenholtz, eds. /{The Future of the Public Domain}/, pp. 7–26. }~ All of this thinking, mostly confined to scholarly workshops, law reviews, and tech journals, served as a vital platform for imagining the commons in general and the Creative Commons in particular. +={Boyle, James;Cohen, Julie;Lessig, Lawrence;Samuelson, Pamela} + +2~ The Elusive Quest for “Balance” +={copyright law:balance of public and private rights+19|public domain vs.+19;public domain:copyright law, and+19} + +Historically, copyright has been regarded as a “bargain” between the public and authors. The public gives authors a set of monopoly rights to help them sell their works and earn rewards for their hard work. In return, the public gets the marketable output of creators— books, films, music — and certain rights of free access and use. The primary justification of copyright law is not to protect the fortunes of authors; it is to promote new creative works and innovation. By giving authors a property right in their works — and so helping them to sell those works in the marketplace — copyright law aims to promote the “progress of human knowledge.” +={property rights:copyright law, and;copyright law:property rights, and} + +That’s the author’s side of the bargain. The public’s stake is to have certain limited rights to use copyrighted works. Under the “fair use” doctrine (or “fair dealing” in some countries), people are entitled to excerpt copyrighted works for noncommercial purposes such as journalism, scholarship, reviews, and personal use. People are also entitled to resell the physical copies of copyrighted works such as books and videos. (This right is granted under the “first sale doctrine,” which enables libraries and DVD rental stores to exist.) The public also has the right to use copyrighted works for free after the term of a copyright has expired — that is, after a work has “entered the public domain.” This general scheme is said to establish a balance in copyright law between the private rights of authors and the needs of the public and future authors. +={copyright law:fair use doctrine, and|first sale doctrine, and;fair use doctrine:copyright law, and;first sale doctrine} + +This “balance” has been more rhetorical than real, however. For decades, critics have complained that the public’s side of the copyright bargain is being abridged. Content industries have steadily expanded their rights under copyright law at the expense of the public’s modest access rights. + +What is notable about the long history of seeking “balance” in copyright law is the singular failure of critics to make much headway (until recently) in redressing the problem. The public’s interests in copyright law — and those of authors’ — have never been given that much attention or respect. From the authors of eighteenth-century England, whose formal rights were in practice controlled by booksellers, to the rhythm-and-blues singers of the 1940s whose music was exploited for a pittance by record labels, to academics whose copyrights must often be ceded to commercial journals, authors have generally gotten the short end of the stick. No surprise here. Business practices and copyright policy have usually been crafted by the wealthiest, most politically connected players: book publishers, film studios, record labels, broadcasters, cable operators, news organizations. The public’s lack of organized political power was reflected in its lack of a coherent language for even describing its own interests in copyright law. + +For most of the twentieth century, the forging of copyright law was essentially an insider contest among various copyright-dependent industries for market advantage. Congress hosted a process to oversee the squabbling and negotiation, and nudged the players now and again. This is what happened in the fifteen-year run-up to congressional enactment of the Copyright Act of 1976, for example. For the most part, Congress has preferred to ratify the compromises that industry players hammer out among themselves. The unorganized public has been treated as an ignorant bystander. +={Copyright Act (1976)+3;copyright law:revision of (1976)+3} + +Naturally, this has strengthened the hand of commercial interests. Copyright disputes could be argued within a congenial intellectual framework and closely managed by a priesthood of lawyer-experts, industry lobbyists, and friendly politicians. The interests of citizens and consumers, blessedly absent from most debates, could be safely bracketed as marginal. + +But letting industries negotiate their own solutions has its own problems, as Professor Jessica Litman has pointed out: “Each time we rely on current stakeholders to agree on a statutory scheme, they produce a scheme designed to protect themselves against the rest of us. Its rigidity leads to its breakdown; the statute’s drafters have incorporated too few general principles to guide courts in effecting repairs.”~{ Jessica Litman, /{Digital Copyright}/ (Amherst, NY: Prometheus, 2000), p. 62. }~ By letting the affected industries negotiate a series of fact specific solutions, each reflecting that moment in history, Congress has in effect let copyright law become an agglomeration of complex and irregular political compromises — or, as some might say, a philosophically incoherent mess. +={copyright law:expansion of+8;Litman, Jessica} + +Perhaps because it is so attentive to its industry benefactors, Congress has generally regarded the fair use doctrine and the public domain as a sideshow. Under the Copyright Act of 1976, for example, fair use is set forth only as an affirmative defense to accusations of copyright infringement, not as an affirmative right. Moreover, fair use is defined by four general statutory guidelines, which courts have proceeded to interpret in wildly inconsistent ways. In real life, Lawrence Lessig has quipped, fair use amounts to “the right to hire a lawyer.” +={Lessig, Lawrence:fair use, on;copyright use:fair use doctrine, and;fair use doctrine:copyright law, and} + +Congress has shown a similarly low regard for the public domain. After extending the term of copyright law eleven times since 1961, the copyright monopoly now lasts for an author’s lifetime plus seventy years (ninety-five years for corporations). For Congress, writes Professor Tyler Ochoa, “allowing works to enter the public domain was something to be condemned, or at least only grudgingly tolerated, rather than something to be celebrated.”~{ Tyler Ochoa, “Origins and Meanings of the Public Domain,” /{Dayton Law Review}/ 28, no. 215 (2002). }~ Congress’s most hostile act toward the public domain — and to the public’s rights of access — was the elimination of the registration requirement for copyright protection.~{ Lawrence Lessig explains the impact of eliminating the copyright registration requirement in Lessig, /{Free Culture}/ (New York: Penguin, 2004), pp. 222–23. }~ Since 1978, copyright holders have not had to formally register their works in order to receive protection. Doodle on a scratch pad, record your guitar strumming, and it’s automatically copyrighted. +={copyright law:automatic+1;Ochoa, Tyler} + +Sounds great . . . but this provision had especially nasty consequences once the digital revolution kicked into high gear in the 1990s, because every digital byte was born, by default, as a form of property. Automatic copyright protection dramatically reversed the previous default, where most everything was born in the public domain and was free to use unless registered. Today, anyone wishing to reuse a work legally has to get permission and possibly pay a fee. To make matters worse, since there is no longer a central registry of who owns what copyrighted works, it is often impossible to locate the copyright holder. Such books, films, and images are known as “orphan works.” +={copyright law:"orphan works"} + +Thirty years ago, the idea of throwing a net of copyright over all information and culture was not alarming in the least. As Jessica Litman recalled, “When I started teaching in 1984, we were at what was about to be the crest of a high-protectionist wave. That is, if you looked at the scholarship being written then, people were writing about how we should expand copyright protection, not only to cover useful articles and fashions and semiconductor chips and computer programs, but also recombinant DNA. The Chicago School of scholarship was beginning to be quite influential. People were reconceiving copyright in Chicago Law and Economics terms, and things like fair use were seen to be ‘free riding.’ ”~{ Interview with Jessica Litman, November 16, 2006. }~ +={Litman, Jessica+1} + +Yet the effects of this protectionist surge, at least for the short term, were muted for a number of reasons. First, corporate lobbying on copyright issues was extremely low-key. “I started going to congressional hearings in 1986,” said Litman, “and no one was there. There were no members of Congress; there was no press. The witnesses would come and they’d talk, and staffers would take notes. And that would be it.”~{ Ibid. }~ The big-ticket lobbying — receptions, slick reports, legislative junkets, private movie screenings with Jack Valenti — did not really begin to kick in until the late 1980s and early 1990s, when trade associations for every conceivable faction stepped up their Washington advocacy. When the Internet’s commercial implications became clear in the mid-1990s, copyright-dependent industries ratcheted up their campaign contributions and lobbying to another level entirely. +={Valenti, Jack} + +The protectionist surge in copyright law in the 1980s was mitigated by two stalwart public servants: Representative Robert Kastenmeier of Wisconsin, the chair of the House judiciary subcommittee that oversaw copyright legislation, and Dorothy Schrader, the longtime general counsel of the U.S. Copyright Office. Both considered it their job to protect the public from grasping copyright industries. When Kastenmeier lost his reelection bid in 1990 and Schrader retired in 1994, the film, music, broadcast, cable, and publishing industries would henceforth have staunch allies— sometimes their former lawyer-lobbyists — in key congressional staff positions and copyright policy jobs. Government officials no longer saw their jobs as protecting consumers from overbearing, revenuehungry media industries, but as helping copyright owners chase down and prosecute “pirates.” Copyright law was recast as a form of industrial policy — a way to retain American jobs and improve the U.S. balance of trade — not as an instrument that affects social equity, consumer rights, and democratic values. +={Kastenmeier, Robert;Schrader, Dorothy;piracy} + +Ironically, the mercantilist view of copyright was gaining ground at precisely the time when the public’s stake in copyright law was growing. An explosion of consumer electronics in the 1980s was giving the public new reasons to care about their fair use rights and the public domain. The introduction of the videocassette recorder, the proliferation of cable television, personal computers, software and electronics devices, and then the introduction of the Web in 1993 all invited people to control their own creative and cultural lives. The new media meant that the baroque encrustations of copyright law that had accumulated over decades were now starting to interfere with people’s daily activities. +={fair use doctrine:copyright law, and+1;copyright law:fair use doctrine, and+1|mercantilist view of+2} + +Yet rather than negotiate a new copyright bargain to take account of the public’s needs and interests, copyright industries stepped up their demands on Congress to ram through even stronger copyright, trademark, and patent privileges for themselves. Their basic goal was, and generally remains, a more perfect control over all downstream uses of works. Content industries generally do not concede that there is any presumptive “free use zone” of culture, notwithstanding the existence of the fair use doctrine. Works that citizens may regard as fair-use entitlements industry often regards as chunks of information that no one has yet figured out how to turn into marketable property. + +Most content industries, then and now, do not see any “imbalance” in copyright law; they prefer to talk in different terms entirely. They liken copyrighted works to personal property or real estate, as in “and you wouldn’t steal a CD or use my house without permission, would you?” A copyrighted work is analogized to a finite physical object, But the essential point about works in the digital age is that they can’t be “used up” in the same way that physical objects can. They are “nondepletable” and “nonrival,” as economists put it. A digital work can be reproduced and shared for virtually nothing, without depriving another person of it. +={property rights:copyright law, and+1;copyright law:property rights, and} + +Nonetheless, a new narrative was being launched — copyrighted works as property. The idea of copyright law reflecting a policy bargain between the public and authors/corporations was being supplanted by a new story that casts copyright as property that is nearly absolute in scope and virtually perpetual in term. In hindsight, for those scholars who cared enough to see, a disquieting number of federal court cases were strengthening the hand of copyright holders at the expense of the public. James Boyle, in a much-cited essay, called this the “second enclosure movement” — the first one, of course, being the English enclosure movement of common lands in medieval times and into the nineteenth century.~{ James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” /{Law and Contemporary Problems}/ 66 (Winter–Spring 2003), pp. 33–74, at http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+33+ (WinterSpring+2003). }~ +={Boyle, James:enclosure movement, on;commons:enclosure of+1;enclosure movement+1;copyright law:enclosure movement, and+1} + +Enclosure took many forms. Copyright scholar Peter Jaszi recalls, “Sometime in the mid-1980s, the professoriate started getting worried about software copyright.”~{ Interview with Peter Jaszi, October 17, 2007. }~ It feared that copyrights for software would squelch competition and prevent others from using existing code to innovate. This battle was lost, however. Several years later, the battle entered round two as copyright scholars and programmers sought to protect reverse-engineering as fair use. This time, they won.~{ /{Sega Enterprises v. Accolade}/, 977 F.2d 1510 (9th Cir. 1993). }~ +={Jaszi, Peter;fair use doctrine:reverse engineering, and;software:copyright of;copyright law:digital age, in} + +Then, in 1985, the U.S. Supreme Court ruled that it was not fair use for the /{Nation}/ magazine to excerpt three hundred words from President Ford’s 200,000-word memoir. The /{Nation}/ had acquired a copy of Ford’s book before its publication and published an article of highlights, including a handful of quotations. The material, derived from Ford’s official duties as president, was of obvious value to the democratic process. But by a 6-3 margin the Court held that the /{Nation}/ had violated Ford’s copyright.~{ /{Harper & Row v. Nation Enterprises}/, 471 U.S. 539 (1985). }~ The proprietary tilt of copyright law only intensified in the following years. Companies claimed copyrights for all sorts of dubious forms of “originality” — the page numbers of federal court decisions, the names and numbers in telephone directories, and facts compiled in databases. +={Ford, Gerald R.;Nation (magazine)} + +2~ The Great Expansion of Intellectual Property +={intellectual property:protection of+14;copyright law:expansion of+14} + +These expansions of proprietary control in the 1980s proved to be a prelude to much more aggressive expansions of copyright, patent, and trademark law in the 1990s. Congress and the courts were granting property rights to all sorts of things that had previously been considered unowned or unownable. The Supreme Court had opened this door in 1980 when it recognized the patentability of a genetically modified bacterium. This led to ethically and economically dubious patents for genes and life-forms. Then businesses began to win patents for “business methods” — ideas and theoretical systems — that would otherwise be in the public domain. Mathematical algorithms, if embedded in software, could now be owned. Amazon.com’s patent on “one-click shopping” on its Web site became the symbol of this trend. Boat manufacturers won a special /{sui generis}/ (“in a class by itself ”) form of protection for the design of boat hulls in 1998. Celebrities and talent agencies prevailed upon state legislatures to extend the scope of ownership of celebrity names and likenesses, which had long been considered in the public domain. +={Amazon;copyright law:proprietary rights;software:copyright of+1;software:copyright of+1;property rights:copyright law, and} + +Companies developed still other strategies to assert greater proprietary control over works. Software companies began to rely upon mass-market licenses — often referred to as “shrink wrap” contracts and “click-through” Web agreements — to expand their rights at the expense of consumers and the public domain. Various computer companies sought to enact a model state law that, in Samuelson’s words, would “give themselves more rights than intellectual property law would do and avoid the burdens of public interest limitations.”~{ Samuelson, “Digital Information, Digital Networks, and the Public Domain,” p. 92. }~ Consumers could in effect be forced to surrender their fair use rights, the right to criticize the product or their right to sue, because of a “contract” they ostensibly agreed to. +={Samuelson, Pamela;copyright law:fair use doctrine, and;fair use doctrine:copyright law, and} + +Trademarks, originally designed to help people identify brands and prevent fraud in the marketplace, acquired a new power in 1995 — the ability to control public meanings. For years, large corporations had wanted to extend the scope of their trademark protection to include “dilution” — a fuzzy concept that would prohibit the use of a trademark without permission, even for legitimate public commentary or parody, if it “dilutes” the recognized public associations and meanings of a trademark. For a decade or more, Kastenmeier had prevented antidilution legislation from moving forward. After Kastenmeier left Congress, the trademark lobby succeeded in getting Congress to enact the legislation. This made it much easier for Mattel to threaten people who did parodies of Barbie dolls. The /{Village Voice}/ could more credibly threaten the /{Cape Cod Voice}/ for trademark infringement. Wal-Mart could prevent others from using “its” smiley-face logo (itself taken from the cultural commons).~{ See, e.g., David Bollier, /{Brand Name Bullies: The Quest to Own and Control Culture}/ (New York: Wiley, 2005).}~ +={Kastenmeier, Robert;trademarks:dilution of} + +The election of Bill Clinton as president in 1992 gave content industries new opportunities to expand their copyright privileges. The Clinton administration launched a major policy effort to build what it called the National Information Infrastructure (NII), more commonly known as the Information Superhighway. Today, of course, we call it the Internet. A task force of industry heavyweights was convened to determine what policies should be adopted to help build the NII.~{ Jessica Litman has an excellent historical account of the NII campaign in her book /{Digital Copyright}/ (Amherst, NY: Prometheus, 2000). }~ Vice President Al Gore cast himself as a visionary futurist and laid out astonishing scenarios for what the NII could deliver: access to every book in the Library of Congress, the ability of doctors to share medical information online, new strides against inequality as everyone goes online. +={Clinton, Bill;Gore, Al;Information Superhighway+6;Internet:rise of+1;National Information Infrastructure (NII)+6} + +The NII project was a classic case of incumbent industries trying to protect their profit centers. Executives and lobbyists associated with broadcasting, film, and music were being asked how to structure the Information Superhighway. Predictably, they came up with fantasies of digital television with five hundred channels, programs to sell products, and self-serving scenarios of even stronger copyright protection and penalties. Few had any inkling of the transformative power of open networks or the power of the sharing economy — and if they did, the possibilities certainly were not appealing to them. + +One part of the NII campaign was a working group on intellectual property headed by Bruce Lehman, a former congressional staffer, lobbyist for the software industry, and commissioner of patents and trademarks. The Lehman panel spent two years developing a sweeping set of copyright policies for the Information Superhighway. When the panel’s report was released in September 1995, anyone who cared about open culture and democracy was livid. The White Paper, as it was called, recommended a virtual elimination of fair use rights in digital content and broader rights over any copyrighted transmissions. It called for the elimination of first-sale rights for digitally transmitted documents (which would prevent the sharing of digital files) and endorsed digital rights management systems for digital works (in order to monitor and prosecute illegal sharing). The White Paper even sought to reinterpret existing law so that transient copies in the random-access memory of computers would be considered illegal unless they had a license — essentially outlawing Web browsing without a license. With visions of Soviet-style indoctrination, the document also recommended an ambitious public education program to teach Americans to properly respect copyright laws. +={Lehman, Bruce;White Paper [on copyright]+4;Clinton administration:White Paper+4;first sale doctrine;copyright:first sale, and|fair use doctrine, and;fair use doctrine:copyright law, and+1|White Paper vs.+5} + +Litman wrote a revealing history of the misbegotten NII project in her book /{Digital Copyright}/. Her chapter title “Copyright Lawyers Set Out to Colonize Cyberspace” says it all.~{ Litman, /{Digital Copyright}/, pp. 89–100. }~ Samuelson alerted the readers of /{Wired}/ about the outrageous proposals of the White Paper in her devastating January 1996 article “The Copyright Grab.”~{ Pamela Samuelson, “The Copyright Grab,” /{Wired}/, January 1996. }~ If the NII proposals are enacted, warned Samuelson, “your traditional user rights to browse, share or make private noncommercial copies of copyrighted works will be rescinded. Not only that, your online service provider will be forced to snoop through your files, ready to cut you off and turn you in if it finds any unlicensed material there. The White Paper regards digital technology as so threatening to the future of the publishing industry that the public must be stripped of all the rights copyright law has long recognized — including the rights of privacy. Vice President Al Gore has promised that the National Information Infrastructure will dramatically enhance public access to information; now we find out that it will be available only on a pay-per-use basis.”~{ Ibid. }~ +={Litman, Jessica;Samuelson, Pamela;Gore, Al} + +The White Paper was not just an effort by Old Media to domesticate or eliminate the freedoms emerging on the Information Superhighway; it sought to set the stage for the internationalization of strict copyright norms, so that American-style copyright law would prevail around the world. To counter this effort, American University law professor Peter Jaszi convened a group of law professors, library organizations, and computer and consumer electronics makers, who promptly organized themselves as the Digital Future Coalition (DFC), the first broad-based coalition in support of the public’s stake in copyright law. +={Jaszi, Peter;Digital Future Coalition (DFC)+1;copyright law:international} + +The DFC attacked the White Paper as a copyright-maximalist nightmare and sought to rally civil liberties groups, Internet service providers, and electronics manufacturers. With modest industry support, the DFC was largely responsible for slowing progress on legislation that would have enacted Lehman’s proposals. As domestic opposition grew, Lehman shrewdly decided to push for a new global copyright treaty that would embody similar principles. In the end, however, the World Intellectual Property Organization demurred. +={Lehman, Bruce;World Intellectual Property Organization} + +By that time, however, the terms of debate had been set, and there was serious congressional momentum to adopt some variant of the White Paper agenda. The ultimate result, enacted in October 1998, was the Digital Millennium Copyright Act (DMCA), the crowning achievement of the copyright-maximalist decade. It contained dozens of highly specific provisos and qualifications to satisfy every special pleader. The law in effect authorized companies to eliminate the public’s fair use rights in digital content by putting a “digital lock” around the content, however weak. Circumventing the lock, providing the software to do so, or even telling someone how to do so became a criminal offense. +={copyright:fair use doctrine, and+1;fair use doctrine:copyright law, and+1;Digital Millennium Copyright Act (DMCA) [1998]+4;copyright law:DMCA+4} + +The DMCA has been roundly denounced by software programmers, music fans, and Internet users for prohibiting them from making personal copies, fair use excerpts, and doing reverse engineering on software, even with legally purchased products. Using digital rights management systems sanctioned by the DMCA, for example, many CDs and DVDs are now coded with geographic codes that prevent consumers from operating them on devices on other continents. DVDs may contain code to prevent them from running on Linux-based computers. Digital journals may “expire” after a given period of time, wiping out library holdings unless another payment is made. Digital textbooks may go blank at the end of the school year, preventing their reuse or resale. + +Critics also argue that the DMCA gives large corporations a powerful legal tool to thwart competition and interoperability. Some companies programmed garage door openers and printer cartridges so that the systems would not accept generic replacements (until a federal court found this behavior anticompetitive). Naturally, this sort of behavior, which the DMCA facilitates, lets companies avoid open competition on open platforms with smaller companies and entrepreneurs. It also gives companies a legal pretext for bullying Web site owners into taking down copyrighted materials that may in fact be legal to use. + +In her excellent history of the political run-up to the DMCA, Litman notes, “There is no overarching vision of the public interest animating the Digital Millennium Copyright Act. None. Instead, what we have is what a variety of different private parties were able to extract from each other in the course of an incredibly complicated four-year multiparty negotiation.”~{ Litman, /{Digital Copyright}/, pp. 144–45. }~ The DMCA represents a new frontier of proprietarian control — the sanctioning of technological locks that can unilaterally override the copyright bargain. Companies asked themselves, Why rely on copyrights alone when technology can embed even stricter controls into the very design of products? +={Litman, Jessica} + +The year 1998 was an especially bad year for the public domain. Besides enacting the trademark dilution bill and DMCA, the Walt Disney Company and other large media corporations succeeded in their six-year campaign to enact the Sonny Bono Copyright Term Extension Act.~{ See Wikipedia entry for the Copyright Term Extension Act, at http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act. See also /{Eldred v. Ashcroft}/, 537 U.S. 186 (2003), F. 3d 849 (2001). }~ The legislation, named after the late House legislator and former husband of the singer Cher, retroactively extended the terms of existing copyrights by twenty years. As we will see in chapter 3, this law became the improbable catalyst for a new commons movement. +={trademarks:dilution of;Walt Disney Company;Copyright Term Extension Act} + +2~ Confronting the Proprietarian Juggernaut +={copyright law:property rights, and+13;property rights:copyright law, and+13} + +If there was ever a need for independent scholarship on copyright law and activism to challenge the new excesses, this was such a time. Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation in San Francisco, recalls, “Peggy Radin taught the first cyber-law class at Stanford Law School in 1995, and I was her research assistant. And at the end of that semester, I had read everything that had ever been written about the intersection of the Internet and the law — not just in the legal literature, but in almost all the literature. It filled about two boxes, and that was it. That was all there was.”~{ Interview with Fred von Lohmann, March 20, 2006. }~ +={Lohmann, Fred von;Radin, Margaret Jane} + +In about a dozen years, those two boxes of literature have grown into many shelves and countless filing cabinets of case law and commentary. Much of the legal scholarship was the fruit of a new generation of copyright professors who rose to the challenge of the time. An earlier generation of copyright scholars — Melville Nimmer, Alan Latman, Paul Goldstein — were highly respected titans, but they also enjoyed busy consulting practices with the various creative industries that they wrote about. Protecting the public domain was not their foremost concern. +={Goldstein, Paul;Latman, Alan;Nimmer, Melville} + +By the 1980s, as law schools become more like graduate schools and less like professional schools, copyright commentary began to get more scholarly and independent of the industries it studied. People like Pamela Samuelson, Peter Jaszi, Jerome H. Reichman, Jessica Litman, L. Ray Patterson, and Wendy Gordon were among this cohort, who were soon joined in the 1990s by a new wave of thinkers such as James Boyle, Lawrence Lessig, Julie Cohen, Niva Elkin-Koren, and Yochai Benkler. Still others, such as Rosemary Coombe and Keith Aoki, approached copyright issues from cross-cultural and globalization perspectives. These scholars were frankly hostile to the large copyright industries, and greatly concerned with how the law was harming democracy, science, culture, and consumers. +={Litman, Jessica;Samuelson, Pamela;Jaszi, Peter;Benkler, Yochai;Boyle, James;Cohen, Julie;Coombe, Rosemary;Elkin-Koren, Niva;Gordon, Wendy;Lessig, Lawrence;Patterson, L. Ray;Reichman, Jerome H.;Aoki, Keith} + +A number of activist voices were also coming forward at this time to challenge the proprietarian juggernaut. As the Internet became a popular medium, ordinary people began to realize that the new copyright laws were curtailing their creative freedoms and free speech rights. The obscure complexities of copyright law started to become a far more public and political issue. The pioneering activist organization was the Electronic Frontier Foundation. EFF was founded in 1990 by tech entrepreneur Mitch Kapor, the famed inventor of the Lotus 1-2-3 spreadsheet in the 1980s; John Perry Barlow, Grateful Dead lyricist and hacker; and John Gilmore, a leading privacy/cryptography activist and free software entrepreneur. +={Barlow, John Perry+4;Gilmore, John;Kapor, Mitch;Electronic Frontier Foundation (EFF)} + +The organization was oriented to hackers and cyberlibertarians, who increasingly realized that they needed an organized presence to defend citizen freedoms in cyberspace. (Barlow adapted the term /{cyberspace}/ from science-fiction writer William Gibson in 1990 and applied it to the then-unnamed cultural life on the Internet.) Initially, the EFF was concerned with hacker freedom, individual privacy, and Internet censorship. It later went through some growing pains as it moved offices, changed directors, and sought to develop a strategic focus for its advocacy and litigation. In more recent years, EFF, now based in San Francisco, has become the leading litigator of copyright, trademark, and Internet free expression issues. It also has more than ten thousand members and spirited outreach programs to the press and public. +={Gibson, William;cyberspace:use of term} + +John Perry Barlow was an important visionary and populizer of the time. His March 1994 article “The Economy of Ideas” is one of the most prophetic yet accessible accounts of how the Internet was changing the economics of information. He astutely realized that information is not a “product” like most physical property, but rather a social experience or form of life unto itself. “Information is a verb, not a noun,” he wrote. “Freed of its containers, information obviously is not a thing. In fact, it is something that happens in the field of interaction between minds or objects or other pieces of information. . . . Sharks are said to die of suffocation if they stop swimming, and the same is nearly true of information.”~{22. John Perry Barlow, “The Economy of Ideas,” /{Wired}/, March 1994, at http://www.wired.com/wired/archive/2.03/economy.ideas.html. }~ + +Instead of the sober polemics of law professors, Barlow — a retired Wyoming cattle rancher who improbably doubled as a tech intellectual and rock hipster — spiced his analysis of information with colorful metaphors and poetic aphorisms. Comparing information to DNA helices, Barlow wrote, “Information replicates into the cracks of possibility, always seeking new opportunities for /{Lebensraum}/.” Digital information, he said, “is a continuing process more like the metaphorphosing tales of prehistory than anything that will fit in shrink-wrap.” + +Since hyperbole is an occupational reflex among cyberjournalists, Barlow’s /{Wired}/ piece bore the obligatory subtitle, “Everything you know about intellectual property is wrong.” Yet reading Barlow more than a decade later confirms that, posturing aside, he /{was}/ on to the big story of our time: “Notions of property, value, ownership and the nature of wealth itself are changing more fundamentally than at any time since the Sumerians first poked cuneiform into wet clay and called it stored grain. Only a very few people are aware of the enormity of this shift, and fewer of them are lawyers or public officials.”~{ Ibid. }~ + +With a nod to Professor Samuelson, Barlow was prescient enough to compare the vulnerability of indigenous peoples to the coming dispossession of Internet communities: “Western countries may legally appropriate the music, designs and biomedical lore of aboriginal people without compensation to their tribes of origins since those tribes are not an ‘author’ or ‘investors.’ But soon most information will be generated collaboratively by the cyber-tribal hunter-gatherers of cyberspace. Our arrogant legal dismissal of the rights of ‘primitives’ will soon return to haunt us.” +={Samuelson, Pamela} + +No account of cyberactivism in the 1990s is complete without mention of James Love, a feisty advocate with a brilliant strategic mind and an extraordinary ability to open up broad new policy fronts. For example, Love, as director of the Ralph Nader–founded Consumer Project on Technology, worked with tech activist Carl Malamud to force the U.S. Securities and Exchange Commission to put its EDGAR database of corporate filings online in 1994, at a time when the SEC was planning to give the data to private vendors to sell. By prevailing at the SEC, Love and Malamud set an important precedent that government agencies should post their information on the Internet for free. A few years later, in 1997, Love convened a conference to assess Microsoft’s troubling monopoly power, an event that emboldened the Department of Justice to launch its antitrust lawsuit against the company. Love later played a key role in persuading an Indian drugmaker to sell generic HIV/AIDS drugs to South Africa, putting Big Pharma on the defensive for its callous patent and trade policies and exorbitant drug prices. Love’s timely gambit in 1996 to organize broader advocacy for the public domain failed, however. He co-founded the Union for the Public Domain, with a board that included Richard Stallman, but the project never developed a political following or raised much money. +={Love, James;EDGAR database;Malamud, Carl;Microsoft:antitrust lawsuit against} + +The American Library Association was the largest and bestfunded advocate on copyright issues in the 1990s, but its collaborations with other Washington allies tended to be modest, and its grassroots mobilization disappointing. Libraries are respected in the public mind precisely because they are stable, apolitical civic institutions — that is, not activists. Despite its valuable presence on copyright and Internet policy issues, the library lobby was temperamentally disinclined to get too far ahead of the curve. +={American Library Association;libraries} + +By the end of the decade, a muscular, dissenting discourse about copyright law was starting to take shape. On one side was a complicated body of industry-crafted copyright law that claimed imperial powers to regulate more and more aspects of daily life — your Web site, your music CDs, your electronic devices, your computer practices. On the other side were ordinary people who loved how the Internet and digital devices were empowering them to be creators and publishers in their own right. They just wanted to indulge their natural human urge to share, tinker, reuse, and transform culture. +={copyright law:expansion of} + +The dissent of the progressive copyright scholars and activists, though pungent, was hardly insurrectionist. These critics were reformers, not bomb throwers. Most objected to the overreaching scope and draconian enforcement of copyright law, not to its philosophical foundations. They generally argued that the problem wasn’t copyright law per se, but the misapplication and overextension of its core principles. + +2~ A New Story About the Public Domain +={copyright law:public domain vs.+15;public domain:copyright law, and+15|emergence of+21} + +One of the most notable outgrowths of all this activity was the development of a new story about the public domain. Scholars took a range of legal doctrines that were scattered among the sprawling oeuvre of copyright law and consolidated them under one banner, /{the public domain}/. The new framing helped give the public’s rights in cultural works a new moral standing and intellectual clarity. + +Even though copyright law has existed for three centuries, the term “public domain” did not surface in a U.S. Supreme Court decision until 1896. The public domain was first mentioned in U.S. copyright law in 1909, and while it occasionally merited passing reference or discussion in later decades, the concept was not the subject of a significant law review article until 1981. That article was “Recognizing the Public Domain,” by Professor David Lange.~{ David Lange, “Recognizing the Public Domain,” /{Law and Contemporary Problems}/ 44 (Autumn 1981). }~ “David’s article was an absolutely lovely piece that sunk without a trace,” recalls Jessica Litman. “When a bunch of us discovered [Lange’s article] in the late 1980s, it had been neither cited nor excerpted nor reprinted nor anything — because nobody was looking for a defense of the public domain. People were looking for arguments for extending copyright protection. David was ahead of his time.” + +The main reason that the public domain was ignored was that it was generally regarded as a nullity. “Public domain in the fields of literature, drama, music and art is the other side of the coin of copyright,” wrote M. William Krasilovsky in 1967.~{ M. William Krasilovsky, “Observations on the Public Domain,” /{Bulletin of the Copyright Society}/ 14, no. 205 (1967). }~ “It is best defined in negative terms.” Edward Samuels wrote that the public domain “is simply whatever remains after all methods of protection are taken into account.”~{ Edward Samuels, “The Public Domain in Copyright Law,” /{Journal of the Copyright Society}/ 41, no. 137 (1993), p. 138. }~ + +Lange himself acknowledged this conventional wisdom when he wrote that the public domain “amounts to a dark star in the constellation of intellectual property.” He took issue with this history, however, and insisted upon the affirmative value of the public domain. Lange dredged up a number of “publicity rights” cases and commentary to shed light on the problem: Bela Lugosi’s widow and son claimed that they, not Universal Pictures, should own the rights to the character Dracula. Representatives of the deceased Marx Brothers sought to stop a Broadway production spoofing 1930s musicals from using the Marx Brothers’ characters. DC Comics, owner of a trademark in the Superman character, sued to prevent a group of Chicago college students from calling their newspaper /{The Daily Planet}/. And so on. +={DC Comics;Lugosi, Bela;Marx Brothers+1} + +From such examples, Lange drove home a commonsense lesson about the derivative nature of creativity: we all depend on others to generate “new” works. Groucho, Chico, and Harpo Marx couldn’t “invent” their stage personas until, in classic vaudevillian tradition, they had adapted jokes and shtick from their peers. “In time,” Groucho wrote in his memoirs, “if [a comedian] was any good, he would emerge from the routine character he had started with and evolve into a distinct personality of his own. This has been my experience and also that of my brothers, and I believe this has been true of most of the other comedians.” + +To which Lange added, “Of course, what Groucho is saying in this passage is that although he and his brothers began as borrowers they ended as inventors. . . . It is a central failing in the contemporary intellectual property literature and case law that that lesson, so widely acknowledged, is so imperfectly understood.”~{ Lange, “Recognizing the Public Domain,” p. 162. }~ + +In example after example, Lange made the point that “as access to the public domain is choked, or even closed off altogether, the public loses too: loses the rich heritage of its culture, the rich presence of new works derived from that culture, and the rich promise of works to come.” Lange warned that “courts must dispel” the “impression of insubstantiality” from which the public domain suffers. Nothing will be resolved, he warned, “until the courts have come to see the public domain not merely as an unexplored abstraction but as a field of individual rights as important as any of the new property rights.” + +2~ What Is “Authorship”? +={authorship+13;copyright law:authorship, and+13|originality, and+13} + +Besides honoring the public domain, copyright reformers sought to develop a second, more subversive narrative. They questioned the very idea of individual “authorship” and “originality,” two central pillars of copyright law, The standard moral justification for granting authors exclusive rights in their works is the personal originality that they supposedly show in creating new works. But can “originality” and “authorship” be so neatly determined? What of the role of past generations and creative communities in enabling the creation of new works? Don’t we all, in the words of Isaac Newton, stand on the shoulders of giants? +={Newton, Isaac} + +The idea that sharing, collaboration, and adaptation may actually be important to creativity, and not merely incidental, was a somewhat daring theme in the early 1990s, if only because it had little recognition in copyright scholarship. While this line of analysis preceded the Internet, the arrival of the World Wide Web changed the debate dramatically. Suddenly there was a powerful, real-life platform for /{collective}/ authorship. Within fifteen years, sharing and collaboration has become a standard creative practice, as seen in Wikipedia, remix music, video mashups, machinima films, Google map mashups, social networking, and much else. +={orld Wide Web: collective authorship, and;authorship:collective} + +Of course, in the early 1990s, the promise of online networks was only dimly understood. But for Jessica Litman, the tightening noose of proprietary control had troubling implications for fair use and the ability of people to create and share culture: “Copyright law was no longer as open and porous as it had been, so I felt compelled to try to defend the open spaces that nobody was paying attention to.” Litman published a major article on the public domain in 1990, instigating a fresh round of interest in it and establishing lines of analysis that continue to this day.~{ Jessica Litman, “The Public Domain,” /{Emory Law Journal}/ 39, no. 965 (Fall 1990). }~ +={Litman, Jessica;copyright law:fair use doctrine, and;fair use doctrine:copyright law, and} + +She made the then-startling claim, for example, that “the very act of authorship in /{any}/ medium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea. Composers recombine sounds they have heard before; playwrights base their characters on bits and pieces drawn from real human beings and other playwrights’ characters. . . . This is not parasitism; it is the essence of authorship. And, in the absence of a vigorous public domain, much of it would be illegal.” Litman argued that the public domain is immensely important because all authors depend upon it for their raw material, Shrink the public domain and you impoverish the creative process. + +The problem, said Litman, is that copyright law contains a structural contradiction that no one wants to acknowledge. The law requires “originality” in order for a work to be protected — but it cannot truly determine what is “original.” If authors could assert that their works were entirely original, and courts conscientiously enforced this notion, copyright law would soon collapse. Everyone would be claiming property rights in material that had origins elsewhere. Shakespeare’s estate might claim that Leonard Bernstein’s /{West Side Story}/ violates its rights in /{Romeo and Juliet}/; Beethoven would prevent the Bee Gees from using the opening chords of his Fifth Symphony. + +When one person’s copyright claims appear to threaten another person’s ability to create, the courts have historically invoked the public domain in order to set limits on the scope of copyright protection. In this backhanded way, the public domain helps copyright law escape from its own contradictions and ensures that basic creative elements remain available to all. As Litman explained: + +_1 Because we have a public domain, we can permit authors to avoid the harsh light of a genuine search for provenance, and thus maintain the illusion that their works are indeed their own creations. We can tolerate the grant of overbroad and overlapping deeds through the expedient assumption that each author took her raw material from the commons, rather than from the property named in prior deeds.~{ Litman, “The Public Domain,” p. 1012. }~ + +In effect, copyright law sets up a sleight of hand: it invites authors to plunder the commons with the assurance that their borrowings will be politely ignored — but then it declares the resulting work of authorship “original” and condemns any further follow-on uses as “piracy.” This roughly describes the early creative strategy of the Walt Disney Company, which built an empire by rummaging through the public domain of fairy tales and folklore, adding its own creative flourishes, and then claiming sole ownership in the resulting characters and stories. +={authorship+3;Walt Disney Company} + +As Litman unpacked the realities of “authorship,” she showed how the idea of “originality” serves as a useful fiction. Any author must draw upon aspects of culture and recombine them without ever being able to identify the specific antecedents, she pointed out. Judges, for their part, can never really make a rigorous factual determination about what is “original” and what is taken from the public domain. In reality, said Litman, authorship amounts to “a combination of absorption, astigmatism and amnesia.” The public domain is vague and shifting precisely because it must constantly disguise the actual limits of individual “originality.” + +English professor Martha Woodmansee and law professor Peter Jaszi helped expose many of the half-truths about “authorship” and “originality.” Their 1994 anthology of essays, /{The Construction of Authorship}/, showed how social context is an indispensable element of “authorship,” one that copyright law essentially ignores.~{ Martha Woodmansee and Peter Jaszi, eds., /{The Construction of Authorship: Textual Appropriation in Law and Literature}/ (Durham, NC: Duke University Press, 1994). }~ Thus, even though indigenous cultures collectively create stories, music, and designs, and folk cultures generate works in a collaborative fashion, copyright law simply does not recognize such acts of collective authorship. And so they go unprotected. They are vulnerable to private appropriation and enclosure, much as Stallman’s hacker community at MIT saw its commons of code destroyed by enclosure. +={Jaszi, Peter;Woodmansee, Martha;commons:enclosure of;enclosure movement} + +Before the Internet, the collaborative dimensions of creativity were hardly given much thought. An “author” was self-evidently an individual endowed with unusual creative skills. As the World Wide Web and digital technologies have proliferated, however, copyright’s traditional notions of “authorship” and “originality” have come to seem terribly crude and limited. The individual creator still matters and deserves protection, of course. But when dozens of people contribute to a single entry of Wikipedia, or thousands contribute to an open-source software program, how then shall we determine who is the “author”?~{ Henry Miller writes: “We carry within us so many entities, so many voices, that rare indeed is the man who can say he speaks with his own voice. In the final analysis, is that iota of uniqueness which we boast of as ‘ours’ really ours? Whatever real or unique contribution we make stems from the same inscrutable source whence everything derives. We contribute nothing but our understanding, which is a way of saying — our acceptance.” Miller, /{The Books in My Life}/ (New York: New Directions), p. 198. }~ By the lights of copyright law, how shall the value of the public domain, reconstituted as a commons, be assessed?~{ Rufus Pollock, “The Value of the Public Domain,” report for Institute for Public Policy Research, London, July 2006, at http://www.rufuspollock.org/economics/papers/value_of_public_domain.ippr.pdf. }~ +={World Wide Web:collective authorship, and;creativity:collaborative} + +The Bellagio Declaration, the outgrowth of a conference organized by Woodmansee and Jaszi in 1993, called attention to the sweeping deficiencies of copyright law as applied. One key point stated, “In general, systems built around the author paradigm tend to obscure or undervalue the importance of the ‘public domain,’ the intellectual and cultural commons from which future works will be constructed. Each intellectual property right, in effect, fences off some portion of the public domain, making it unavailable to future creators.”~{ See James Boyle, /{Shamans, Software, and Spleens: Law and the Construction of the Information Society}/ (Cambridge, MA: Harvard University Press, 1995), p. 192. }~ +={Jaszi, Peter;Woodmansee, Martha;Bellagio Declaration;Boyle, James:Shamans, Software and Spleens, by+1;intellectual property:public domain vs.} + +Another fusillade of flaming arrows engulfed the fortress of “authorship” and “originality” in 1996, when James Boyle published /{Shamans, Software, and Spleens}/. With sly wit and deep analysis, this landmark book identified many of the philosophical paradoxes and absurdities of property rights in indigenous knowledge, software, genes, and human tissue. Boyle deftly exposed the discourse of IP law as a kind of Möbius strip, a smooth strip of logic that confusingly turns back on itself. “If a geography metaphor is appropriate at all,” said Boyle, “the most likely cartographers would be Dali, Magritte and Escher.”~{ James Boyle, “A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading,” /{California Law Review}/ 80, no. 1413 (1992), at http://www.law.duke.edu/boylesite/law&info.htm. }~ +={copyright law:philosophical challenges to} + +2~ “You Have No Sovereignty Where We Gather” +={copyright law:philosophical challenges to+13} + +The deconstruction of copyright law over the past twenty years has been a significant intellectual achievement. It has exposed the copyright law’s philosophical deficiencies, showed how social practice deviates from it, and revealed the antisocial effects of expanding copyright protection. Critics knew that it would be impossible to defend the fledgling cyberculture without first documenting how copyright law was metastasizing at the expense of free expression, creative innovation, consumer rights, and market competition. + +But as the millennium drew near, the tech-minded legal community — and law-minded techies — knew that critiques and carping could only achieve so much. A winnable confrontation with copyright maximalists was needed. A compelling counternarrative and a viable long-term political strategy had to be devised. And then somehow they had to be pushed out to the wider world and made real. + +That task was made easier by the intensifying cultural squeeze. The proprietarian lockdown was starting to annoy and anger people in their everyday use of music, software, DVDs, and the Web. And the property claims were growing more extreme. The American Society of Composers, Authors and Publishers had demanded that Girl Scout camps pay a public performance license for singing around the campfire. Ralph Lauren challenged the U.S. Polo Association for ownership of the word /{polo}/. McDonald’s succeeded in controlling the Scottish prefix Mc as applied to restaurants and motels, such as “McVegan” and “McSleep.”~{ These examples can be found in Bollier, /{Brand Name Bullies}/. }~ +={Lauren, Ralph} + +The mounting sense of frustration fueled a series of conferences between 1999 and 2001 that helped crystallize the disparate energies of legal scholarship into something resembling an intellectual movement. “A number of us [legal scholars] were still doing our own thing, but we were beginning to get a sense of something,” recalls Yochai Benkler, “It was no longer Becky Eisenberg working on DNA sequences and Pamela Samuelson on computer programs and Jamie Boyle on ‘environmentalism for the ’Net’ and me working on spectrum on First Amendment issues,” said Benkler. “There was a sense of movement.”~{ Interview with Yochai Benkler, February 7, 2006.}~ (“Environmentalism for the ’Net” was an influential piece that Boyle wrote in 1998, calling for the equivalent of an environmental movement to protect the openness and freedom of the Internet.)~{ James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net,” /{Duke Law Journal}/ 47, no. 1 (October 1997), pp. 87–116, at http://www.law.duke.edu/boylesite/Intprop.htm. }~ +={Boyle, James+1;Benkler, Yochai+1;Eisenberg, Rebecca;Samuelson, Pamela} + +“The place where things started to get even crisper,” said Benkler, “was a conference at Yale that Jamie Boyle organized in April 1999, which was already planned as a movement-building event.” That conference, Private Censorship/Perfect Choice, looked at the threats to free speech on the Web and how the public might resist. It took inspiration from John Perry Barlow’s 1996 manifesto “A Declaration of the Independence of Cyberspace.” It is worth quoting at length from Barlow’s lyrical cri de coeur — first published in /{Wired}/ and widely cited — because it expresses the growing sense of thwarted idealism among Internet users, and a yearning for greater self-determination and self-governance among commoners. Barlow wrote: +={Barlow, John Perry+6} + +_1 Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone, You are not welcome among us, You have no sovereignty where we gather. + +_1 We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. + +_1 Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you, You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project, You cannot. It is an act of nature and it grows itself through our collective actions. + +_1 You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions. + +_1 You claim there are problems among us that you need to solve, You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different. + +As Barlow made clear, the Internet was posing profound new questions — not just about politics, but about the democratic polity itself. What would be the terms of moral legitimacy and democratic process in cyberspace? Would the new order be imposed by a Congress beholden to incumbent industries and their political action committees, or would it be a new social contract negotiated by the commoners themselves? In posing such questions, and doing it with such rhetorical panache, Barlow earned comparisons to Thomas Jefferson. + +The stirrings of a movement were evident in May 2000, when Benkler convened a small conference of influential intellectual property scholars at New York University Law School on “A Free Information Ecology.” This was followed in November 2001 by a large gathering at Duke Law School, the first major conference ever held on the public domain. It attracted several hundred people and permanently rescued the public domain from the netherworld of “nonproperty.” People from diverse corners of legal scholarship, activism, journalism, and philanthropy found each other and began to reenvision their work in a larger, shared framework. +={Benkler, Yochai;public domain:conferences about+1} + +Over three decades, copyright scholarship had become more incisive, impassioned, and focused on the public good — but much of the talk remained within the rarefied circles of the academy. What to do about the disturbing enclosures of the cultural commons remained a vexing, open question. The 1990s saw an eclectic smattering of initiatives, from EFF lawsuits and visionary manifestos to underfunded advocacy efforts and sporadic acts of hacker mischief and civil disobedience. All were worthwhile forms of engagement and exploratory learning. None were terribly transformative. Free software was growing in popularity in the 1990s, but its relevance to broader copyright struggles and the Internet was not yet recognized. Congress and the courts remained captive to the copyright-maximalist worldview. The idea of organizing a counter-constituency to lay claim to the public domain and forge a new social contract for cyberspace was a fantasy. Copyright law was just too obscure to excite the general public and most creators and techies. The commoners were too scattered and diverse to see themselves as an insurgent force, let alone imagine they might create a movement. + +1~ 3 WHEN LARRY LESSIG MET ERIC ELDRED + +/{A constitutional test case becomes the seed for a movement.}/ + +Once the value of the public domain became evident, and a few visionaries realized that the commons needed to be protected somehow, an important strategic question arose: Which arena would offer the best hope for success — politics, culture, technology, or law? + +The real answer, of course, was all of the above. Building a new digital republic would require a wholesale engagement with the politics of effecting democratic change and the challenges of building a cultural movement. It would require the invention of a shared technological infrastructure, and the development of legal tools to secure the commons. All were intertwined. But as a practical matter, anyone who aspired to stop the mass-media-driven expansions of copyright law had to choose where to invest his or her energy. In the mid-1990s, Lawrence Lessig decided that the greatest leverage would come through law. +={Lessig, Lawrence:law in contemporary context, and+2} + +Lessig, usually referred to as Larry, had the knowledge, talent, and good timing to conceptualize the politics of digital technologies at a ripe moment, the late 1990s, when the World Wide Web was exploding and people were struggling to understand its significance. However, Lessig was not content to play the sage law professor dispensing expertise at rarefied professional and scholarly gatherings; he aimed to become a public intellectual and highbrow activist. Through a punishing schedule of public speaking and a series of high-profile initiatives starting in 1998 and 1999, Lessig became a roving demigod-pundit on matters of the Internet, intellectual property, and cultural freedom. + +In the course of his frequent travels, he had a particularly significant rendezvous at the Starbucks on Church Street in Cambridge, Massachusetts. It was November 1998. A month earlier, Congress had enacted the Sonny Bono Copyright Extension Act. Lessig was eager to meet with one Eric Eldred, a retired navy contractor, to see if he would agree to be a plaintiff in the first federal case to challenge the constitutionality of the copyright clause. +={Copyright Term Extension Act;Eldred, Eric:Lessig, and;Lessig, Lawrence:Eldred, and} + +Eldred was a book enthusiast and computer programmer who had reached the end of his rope. Three years earlier, in 1995, he had launched a simple but brilliant project: a free online archive of classic American literature. Using his PC and a server in his home in New Hampshire, Eldred posted the books of Nathaniel Hawthorne, Henry James, Wallace Stevens, and dozens of other great authors whose works were in the public domain. Eldred figured it would be a great service to humanity to post the texts on the World Wide Web, which was just beginning to go mainstream. + +Eldred had previously worked for Apollo Computer and Hewlett-Packard and was experienced in many aspects of computers and software. In the late 1980s, in fact, he had developed a system that enabled users to post electronic text files and then browse and print them on demand. When the World Wide Web arrived, Eldred was understandably excited. “It seemed to me that there was a possibility of having a system for electronic books that was similar to what I had done before. I was interested in experimenting with this to see if it was possible.”~{ Interview with Eric Eldred, August 1, 2006; Daren Fonda, “Copyright Crusader,” /{Boston Globe Magazine}/, August 29, 1999, available at http://www.boston.com/globe/magazine/8-29/featurestory1.shtml; and Eric Eldred, “Battle of the Books: The Ebook vs. the Antibook,” November 15, 1998, at http://www.eldritchpress.org/battle.html. }~ + +So Eldred set out to build his own archive of public-domain books: “I got books from the library or wherever, and I learned how to do copyright research and how to scan books, do OCR [opticalcharacter recognition] and mark them up as HTML [the programming language used on the Web],” he said. “I just wanted to make books more accessible to readers.”~{ Interview with Eric Eldred, August 1, 2006. }~ + +Eldred didn’t realize it at the time, but his brave little archive, Eldritch Press, embodied a dawning cultural archetype — the selfpublished digital work meant to be freely shared with anyone in the world, via the Internet. Thanks to the magic of “network effects” — the convenience and value that are generated as more people join a network — Eldred’s Web site was soon receiving more than twenty thousand hits a day. A growing community of book lovers came together through the site. They offered annotations to the online books, comments, and links to foreign translations and other materials. In 1997, the National Endowment for the Humanities considered the site so educational and exemplary that it formally cited Eldritch Press as one of the top twenty humanities sites on the Web. +={Eldritch Press+12;Internet:communication system, as+3} + +Although it was only a one-person project, Eldritch Press was not just an idiosyncratic innovation. The convergence of telecommunications, personal computers, and software in the 1990s, otherwise known as the Internet, was facilitating an explosion of new genres of public expression. We are still grappling with how this new type of media system is different from broadcasting and other mass media. But we do know this: it invites mass participation because the system doesn’t require a lot of capital or professional talent to use. The system favors decentralized interactivity over centralized control and one-way communication. Ordinary people find it relatively inexpensive and versatile. Since everyone has roughly the same access and distribution capacities, the Internet is perhaps the most populist communication platform and egalitarian marketplace in human history. +={Internet:mass participation in} + +This was not the goal of the computer scientists who invented the Internet, of course. Working under the auspices of the U.S. military, they were chiefly concerned with building a communications system that would allow academic researchers to share computerized information cheaply and easily. The idea was that intelligence and innovation would arise from the “edges” of a “dumb” network, and not be controlled by a centralized elite in the manner of broadcasting or book publishing. The Internet — a network of networks — would be a platform open to anyone who used a shared set of freely accessible “protocols,” or standardized code, for computer hardware and software.~[* The Internet protocols that enable different computers and networks to connect despite their differences is TCP/IP, which stands for TransmissionControl Protocol/Internet Protocol. These protocols enabled the commons known as the Internet to emerge and function, and in turn to host countless other commons “on top” of it.]~ +={Internet:protocols of+1} + +What was radically new about the network architecture was its freedom: No special qualifications or permissions were needed to communicate or “publish.” No one needed to pay special fees based on usage. Anyone could build her own innovative software on top of the open protocols, It is a measure of the system’s power that it has spawned all sorts of innovations that were not foreseen at the outset: in the 1990s, the World Wide Web, instant messaging, peer-to-peer file sharing, and Web logs, and, in the 2000s, podcasts, wikis, social networking software, and countless other applications. The open, shared protocols of the Internet provided an indispensable communications platform for each of these innovations to arise. +={free culture:Internet, of the;Internet:architecture of} + +In building his online archive, Eric Eldred was part of this new cultural cohort of innovators. He not only shared Richard Stallman’s dream — to build an open, sharing community. He also came to share Stallman’s contempt for the long arm of copyright law. The problem, in Eldred’s case, was the corporate privatization of large portions of the public domain. In the 1990s, the Walt Disney Company was worried that its flagship cartoon character, Mickey Mouse, would enter the public domain and be freely available for anyone to use. Mickey, originally copyrighted in 1928, was nearing the end of his seventy-five-year term of copyright and was due to enter the public domain in 2003. +={copyright law:public domain vs.+6;Eldred, Eric:public domain, and;public domain:copyright law, and+6|privatization of+2;Stallman, Richard:influence of;Walt Disney Company} + +Disney led a concerted campaign to extend the term of copyrights by twenty years. Under the new law, all works copyrighted after January 1, 1923, would be privately controlled for another twenty years. Corporations would be able to copyright their works for ninety-five years instead of seventy-five years, and the works of individual authors would be a private monopoly for the author’s lifetime plus seventy years. Thousands of works that were expected to enter the public domain in 1999 and following years would remain under copyright until 2019 and beyond. + +Congress readily enacted this twenty-year giveaway of monopoly rights on a unanimous vote, and without any public hearings or debate. Disney was the most visible beneficiary of the law, prompting critics to dub it the Mickey Mouse Protection Act. But its more significant impact was to deprive Americans of access to an estimated four hundred thousand cultural works from the 1920s and 1930s. Books by Sherwood Anderson, music by George Gershwin, poems by Robert Frost, and tens of thousands of other works would remain under private control for no good reason. The law was the eleventh time in the course of four decades that Congress had extended the term of copyright protection. American University law professor Peter Jaszi complained that copyright protection had become “perpetual on the installment plan.” +={Copyright Term Extension Act+6;Jaszi, Peter;copyright law:expansion of|purpose of+3} + +The law was astonishingly inefficient and inequitable as well. To preserve the property rights of the 2 percent of works from this period that still had commercial value, the law also locked up the remaining 98 percent of works (whose owners are often unknown or unable to be located in order to grant permissions). Indeed, it was these “orphan works” — works still under copyright but not commercially available, and with owners who often could not be found — that represent an important “feedstock” for new creativity. The Sonny Bono Act showered a windfall worth billions of dollars to the largest entertainment businesses and authors’ estates. +={copyright law:orphan works} + +At a more basic level, the copyright term extension showed contempt for the very rationale of copyright law. Copyrights are intended as an inducement to authors to create works. It is a government grant of monopoly property rights meant to help authors earn money for producing books, music, film, and other works. But, as Lessig pointed out, “You can’t incent a dead person. No matter what we do, Hawthorne will not produce any more works, no matter how much we pay him.” Jack Valenti replied that longer copyright terms would give Hollywood the incentive to preserve old films from deteriorating and make them available. + +The copyright term extension act privatized so many of the public domain books on the Eldritch Press Web site, and so offended Eldred’s sense of justice, that in November 1998 he decided to close his site in protest. The new law meant that he would not be able to add any works published since 1923 to his Web site until 2019. “I can no longer accomplish what I set out to do,” said Eldred.~{ Ibid. }~ +={Eldred, Eric:public domain, and|Lessig, and+3;Lessig, Lawrence+3:Eldred, and+3} + +As luck had it, Larry Lessig was looking for an Everyman of the Internet. Lessig, then a thirty-seven-year-old professor at Harvard Law School, was looking for a suitable plaintiff for his envisioned constitutional test case. He had initially approached Michael S. Hart, the founder of Project Gutenberg, the first producer of free electronic books. At the time, the project had nearly six thousand public-domain books available online. (It now has twenty thousand books; about 3 million books are downloaded every month.) Hart was receptive to the case but had his own ideas about how the case should be argued. He wanted the legal complaint to include a stirring populist manifesto railing against rapacious copyright holders. Lessig demurred and went in search of another plaintiff.~{ Richard Poynder interview with Lawrence Lessig, “The Basement Interviews: Free Culture,” April 7, 2006, p. 26, available at http://poynder.blogspot.com/2006/03/basement-interviews.html. See also Steven Levy, “Lawrence Lessig’s Supreme Showdown,” /{Wired}/, October 2002, pp. 140–45, 154–56, available at http://www.wired.com/wired/archive/10.10/lessig.html. Project Gutenberg is at http://wwwgutenberg.org. }~ +={Hart, Michael S.;Project Gutenberg} + +After reading about Eldred’s protests in the /{Boston Globe}/, and meeting with him over coffee, Lessig asked Eldred if he would be willing to be the plaintiff in his envisioned case. Eldred readily agreed. As a conscientious objector and draft resister during the Vietnam War, he was ready to go to great lengths to fight the Sonny Bono Act. “Initially, I volunteered to violate the law if necessary and get arrested and go to jail,” Eldred said. “But Larry told me that was not necessary.” A good thing, because under the No Electronic Theft Act, passed in 1997, Eldred could be charged with a felony. “I could face jail, fines, seizure of my computer, termination of my Internet service without notice — and so all the e-books on the Web site could be instantly lost,” he said. +={No Electronic Theft Act (1997)} + +It was the beginning of a landmark challenge to the unchecked expansion of copyright law. The case would turbocharge Lessig’s unusual career and educate the press and public about copyright law’s impact on democratic culture. Most significantly, it would, in time, spur the growth of an international free culture movement. +={copyright law:expansion of;Eldred, Eric:copyright law, and} + +2~ Larry Lessig’s Improbable Journey +={Lessig, Lawrence+49} + +Since Lessig looms so large in this story, it is worth pausing to understand his roots. Raised by culturally conservative, rock-ribbed Republican parents in central Pennsylvania, Lessig was a bright kid with a deep enthusiasm for politics. “I grew up a right-wing lunatic Republican,” Lessig told journalist Steven Levy, noting that he once belonged to the National Teen Age Republicans, ran a candidate’s unsuccessful campaign for the Pennsylvania state senate, and attended the 1980 Republican National Convention, which nominated Ronald Reagan for president. Larry’s father, Jack, was an engineer who once built Minuteman missile silos in South Dakota (where Lessig was born in 1961), and who later bought a steelfabrication company in Williamsport, Pennsylvania.~{ Wikipedia entry, at http://en.wikipedia.org/wiki/Lessig; Levy, “Lawrence Lessig’s Supreme Showdown.” }~ +={Lessig, Lawrence:background of+4} + + +Lessig initially thought he would follow in his father’s footsteps, and so he went to the University of Pennsylvania to earn degrees in economics and management. Later, studying philosophy at Trinity College in Cambridge, England, he faced growing doubts about his deep-seated libertarian worldview. Hitchhiking through Eastern Bloc countries, Lessig gained a new appreciation for the role of law in guaranteeing freedom and making power accountable. “There were many times when people in Eastern Europe would tell me stories about the history of the United States that I had never been taught: things like the history of how we treated Native Americans; and the history of our intervention in South America; and the nature of our intervention in South East Asia,” Lessig told Richard Poynder in 2006. “All of those were stories that we didn’t tell ourselves in the most accurate and vivid forms.” These experiences, said Lessig, “opened up a channel of skepticism in my head.”~{ Poynder interview with Lessig, April 7, 2006. }~ + +Lessig’s sister Leslie once told a reporter that Larry came back from Cambridge a very different person: “His views of politics, religion, and his career had totally flipped.”~{ Levy, “Lawrence Lessig’s Supreme Showdown.” }~ No longer aspiring to be a businessman or a philosopher, Lessig set his sights on law and entered the University of Chicago Law School in 1986. He transferred the next year to Yale Law School (to be near a girlfriend), groomed himself to be a constitutional law scholar, and graduated in 1989. + +Although he now considered himself a liberal, Lessig spent the next two years in the service of two of the law’s most formidable conservatives. He clerked for circuit court judge Richard Posner in 1988–89, followed by a year clerking for Supreme Court justice Antonin Scalia during the 1990–91 term. His educational odyssey complete, the thirty-year-old Lessig settled into the life of a tenured law professor at the University of Chicago Law School. +={Posner, Richard;Scalia, Antonin} + +One of Lessig’s early scholarly concerns — adjudication — was not exactly a warm-up for tub-thumping activism. But it did curiously prefigure his later interest in using law as a tool to effect political change. In a 1993 law review article, Lessig wondered how courts should interpret the law when public sentiment and practice have changed. If a judge is going to be true to the original meaning of a law, Lessig argued, he must make a conscientious “translation” of the law by taking account of the contemporary context. A new translation of the law is entirely justified, and should supplant an old interpretation, Lessig argued, if prevailing social practices and understandings have changed, The important thing in interpreting law, therefore, is “fidelity in translation.”~{ Lawrence Lessig, “Fidelity in Translation,” /{Texas Law Review}/ 71, no. 1165 (May 1993). }~ +={law:social change, and+8;Lessig, Lawrence: law in contemporary context, and+8} + +Lessig elaborated on this theme in a 1997 article that spent twenty-seven dense pages pondering how two different Supreme Courts, separated by nearly a century, could look to identical words in the Constitution and reach precisely opposite conclusions.~[* The Erie ruling held that federal common law, previously recognized by the U.S. Supreme Court in 1842, was unconstitutional.]~ It is not as if one Court or the other was unprincipled or wrong, Lessig wrote. Rather, any court must take account of contemporary social norms and circumstances in “translating” an old law for new times. Lessig called this dynamic the "/{Erie}/-effect," a reference to the U.S. Supreme Court’s 1938 ruling in /{Erie Railroad Co. v. Tompkins}/. The /{Erie}/-effect is about the emergence of “a kind of contestability about a practice within a legal institution,” which prompts “a restructuring of that practice to avoid the rhetorical costs of that contestability.”~{ Lawrence Lessig, “Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory,” /{Harvard Law Review}/ 110, no. 1785 (1997). }~ +={Erie Railroad Co. v. Tompkins+1} + +Lessig described how an /{Erie}/-effect might be exploited to catalyze a political shift (paraphrased here): /{identify}/ a socially contested law, aim to /{force}/ the conflicting social practice into the foreground by /{inflaming}/ conventional discourse, and then /{argue}/ for a change in legal interpretation in order to relieve the contestability that has been alleged.~{ Ibid., p. 1809. }~ If the conflict between the law and actual social practice can be made vivid enough, a court will feel pressure to reinterpret the law. Or the court will defer to the legislature because the very contestability of the law makes the issue a political question that is inappropriate for a court to resolve. One notable instance of the /{Erie}/-effect in our times, Lessig pointed out, was the successful campaign by feminist law scholar Catherine MacKinnon to define sexual harassment in the workplace as a form of illegal discrimination. The point was to transform popular understanding of the issue and then embody it in law. +={MacKinnon, Catherine} + +Lessig was not especially focused on tech issues until he ran across Julian Dibbell’s article “A Rape in Cyberspace,” which appeared in the /{Village Voice}/ in December 1993.~{ Julian Dibbell, “A Rape in Cyberspace: How an Evil Clown, a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turns a Database into a Society,” /{Village Voice}/, December 21, 1993, pp. 36–42, reprinted in Mark Stefik, /{Internet Dreams: Archetypes, Myths, and Metaphors}/ (Cambridge, MA: MIT Press, 1997), pp. 293–315, Dibbell quote at p. 296. }~ The piece described the social havoc that ensued in an online space, LambdaMOO, hosted at Xerox Palo Alto Research Center. One pseudonymous character “raped” another in the virtual space, using cruel words and graphic manipulations. The incident provoked an uproar among the thousand members of LambdaMOO, and had real emotional and social consequences. Yet, as Dibbell pointed out, “No bodies touched. Whatever physical interaction occurred consisted of a mingling of electronic signals sent from sites spread out between New York City and Sydney, Australia.” +={Dibbell, Julian:"A Rape in Cyberspace"+1;law:cyberspace, of+3} + +For Lessig, the LambdaMOO “rape” had an obvious resonance with Catherine MacKinnon’s arguments in her 1993 book /{Only Words}/. Does a rape in cyberspace resemble the harms inflicted on real women through pornography? Lessig saw intriguing parallels: “I really saw cyberspace as a fantastic opportunity to get people to think about things without recognizing the political valences. That’s all I was interested in; it was purely pedagogical.”~{ Interview with Lawrence Lessig, March 20, 2006. }~ +={MacKinnon, Catherine} + +To explore the issues further, Lessig developed one of the first courses on the law of cyberspace. He taught it in the spring semester of 1995 at Yale Law School, where he was a visiting professor, and later at the University of Chicago and Harvard law schools. During the Yale class, an exchange with a student, Andrew Shapiro, jarred his thinking in a new direction: “I was constantly thinking about the way that changing suppositions of constitutional eras had to be accounted for in the interpretation of the Constitution across time. Andrew made this point about how there’s an equivalent in the technical infrastructure [of the Internet] that you have to think about. And then I began to think about how there were norms and law and infrastructure — and then I eventually added markets into this — which combine to frame what policymaking is in any particular context.”~{ Ibid. }~ +={Shapiro, Andrew} + +This line of analysis became a central theme of Lessig’s startling first book, /{Code and Other Laws of Cyberspace}/, published in 1999.~{ Lessig, /{Code and Other Laws of Cyberspace}/ (New York: Basic Books, 1999). }~ /{Code}/ took on widespread assumptions that the Internet would usher in a new libertarian, free-market utopia. Cyberlibertarian futurists such as Alvin Toffler, Esther Dyson, George Gilder, and John Gilmore had routinely invoked cyberspace as a revolutionary force that would render government, regulation, and social welfare programs obsolete and unleash the transformative power of free markets.~{ Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler, “Cyberspace and the American Dream: A Magna Carta for the Knowledge Age,” Progress and Freedom Foundation, August 1994, available at http://www.pff.org/issues-pubs/futureinsights/fil.2magnacarta.html. }~ In the libertarian scenario, individual freedom can flourish only if government gets the hell out of the way and lets individuals create, consume, and interact as they see fit, without any paternalistic or tyrannical constraints. Prosperity can prevail and scarcity disappear only if meddling bureaucrats and politicians leave the citizens of the Internet to their own devices. As Louis Rossetto, the founder and publisher of /{Wired}/, bluntly put it: “The idea that we need to worry about anyone being ‘left out’ is entirely atavistic to me, a product of that old economics of scarcity and the 19th century social thinking that grew out of it.”~{ David Hudson, interview with Louis Rossetto, “What Kind of Libertarian,” /{Rewired}/ (Macmillan, 1997), p. 255. }~ +={code:law, as+4;law:code as+4;Lessig, Lawrence:Code and Other Laws of Cyberspace+4;Dyson, Esther;Gilder, George;Gilmore, John;Rossetto, Louis;Toffler, Alvin;Internet:architecture of+2|freedom of+1;cyberspace: economic effects of} + +Lessig was more wary. In /{Code}/, he constructed a sweeping theoretical framework to show how freedom on the Internet must be actively, deliberately constructed; it won’t simply happen on its own. Inspired by conversations with computer programmer Mitch Kapor, who declared that “architecture is politics” in 1991, Lessig’s book showed how software code was supplanting the regulatory powers previously enjoyed by sovereign nation-states and governments. The design of the Internet and software applications was becoming more influential than conventional sources of policymaking — Congress, the courts, federal agencies. /{Code is law}/, as Lessig famously put it. +={Kapor, Mitch} + +What was worrisome, Lessig warned, was how relatively small changes in software code could alter the “architecture of control” governing the Internet. The current architecture was not necessarily stable and secure, in other words. Moreover, any future changes were likely to be animated by private, commercial forces and not publicly accountable and democratic ones. Lessig illustrated this point with a disarmingly simple drawing of a dot representing an individual, whose range of behaviors is affected by four distinct forces: software architecture, the market, law, and social norms. Each of these factors conspires to regulate behaviors on the Internet, Lessig argued — and commercial forces would clearly have the upper hand. + +/{Code}/ was a powerful and sobering rebuttal to libertarian assumptions that “keeping government out” would safeguard individual freedom. Its analysis quickly became the default conceptual model for talking about governance on the Internet. It helped situate many existing policy debates — Internet censorship, digital privacy, copyright disputes — in a larger political and policy framework. Although many readers did not share Lessig’s pessimism, /{Code}/ helped expose an unsettling truth — that a great many legislators, federal agencies, and courts were largely oblivious to the regulatory power of software code. They didn’t have a clue about the technical structures or social dynamics affecting life on the Internet, let alone how existing law would comport with this alien domain. +={Internet:freedom of} + +/{Code}/ was widely praised and widely read. But it was only one project of that period that catapulted Lessig to international prominence. In the mid-1990s, Charles Nesson, a bold-thinking, highflying evidence professor at Harvard Law School, was organizing the Berkman Center for Internet & Society. The new project aspired to study “the most difficult and fundamental problems of the digital age,” and show public-interest leadership in addressing them. Nesson, who had become modestly famous for his role in the W. R. Grace litigation chronicled in Jonathan Harr’s /{A Civil Action}/, recruited Lessig to be the Berkman Center’s marquee star in 1997. It was an irresistibly prestigious and visible perch. +={Berkman Center for Internet & Society;Nesson, Charles} + +This was demonstrated within months, when Judge Penfield Jackson tapped Lessig to be a “special master” in one of the most important antitrust cases in a generation, /{U.S. v. Microsoft}/.~{ Steven Levy, “The Great Liberator,” /{Wired}/, October 2002, and Poynder interview with Lessig, April 7, 2006. }~ Lessig’s assignment was to sift through the welter of technical claims and counterclaims in the case and produce a report with recommendations to the court. The government alleged that Microsoft had abused its monopoly power in its sales of its operating system and Web browser, particularly in “bundling” the browser with the Windows operating system. +={Jackson, Penfield;Microsoft:antitrust lawsuit against+1;Lessig, Lawrence:Microsoft lawsuit, and+1} + +Microsoft soon raised questions about Lessig’s neutrality as a special master. Among other objections, the company cited his book’s claim that software code is political and a passage that said Microsoft was “absolutely closed” compared to an open-standards body. It also dredged up an e-mail in which Lessig facetiously equated using Micosoft’s Internet Explorer with “selling one’s soul.” After nearly eight weeks on the job, the Court of Appeals, citing a technicality, took Lessig off the case, to his enduring disappointment. He has been deeply frustrated by the implication that he had been removed for bias (the court made no such finding) and by his abrupt banishment from a plum role in a landmark case. +={Lessig, Lawrence:Code and Other Laws of Cyberspace} + +2~ Waging the /{Eldred}/ Case + +Back at the Berkman Center, however, there were plenty of opportunities to influence the digital future. The center was a hothouse of venturesome ideas and eccentric visionaries. It was a place where John Perry Barlow could drop by to talk with Lessig and Berkman co-founder Jonathan Zittrain, one of the early cyberlaw experts. The center drew upon the ideas of intellectual property guru William (Terry) Fisher; Charles Nesson, who specialized in launching Big Ideas; and a self-renewing batch of bright law students eager to make their mark on a hip and emerging field of law. Richard Stallman at nearby MIT was an occasional visitor, as was MIT computer scientist Hal Abelson, who combined deep technical expertise with an appreciation of the social and democratic implications of digital technologies. It was during this time, in 1998, that Lessig and Abelson jointly taught The Law of Cyberspace: Social Protocols at Harvard Law School. The class was an attempt to make sense of some novel legal quandaries exploding on the Internet, such as computer crime, identity authentication, digital privacy, and intellectual property. +={Berkman Center for Internet & Society+5;Nesson, Charles;Abelson, Hal:cyberlaw, and;Barlow, John Perry;Fisher, William (Terry);Stallman, Richard;Zittrain, Jonathan;Internet:legal quandaries arising on;law:cyberspace, of} + +While nourished by the work of his academic colleagues, Lessig was determined to come up with ingenious ways to /{do something}/ about the distressing drift of copyright law. It was important to take the offensive. Notwithstanding the pessimism of /{Code}/, Lessig’s decidedly optimistic answer was to gin up a constitutional challenge to copyright law. Many legal experts and even sympathetic colleagues were skeptical. Peter Jaszi, a leading intellectual law professor at American University, told a reporter at the time, “It’s not so much that we thought it was a terrible idea but that it was just unprecedented. Congress has been extending copyright for 180 years, and this is the first time someone said it violated the Constitution.”~{ David Streitfeld, “The Cultural Anarchist vs. the Hollywood Police State,” /{Los Angeles Times Magazine}/, September 22, 2002, p. 32. }~ Others worried that an adverse ruling could set back the larger cause of copyright reform. +={Jaszi, Peter;Lessig, Lawrence:Code and Other Laws of Cyberspace;law:social change, and+3;copyright law:expansion of} + +In the spirit of the commons, Lessig and his Berkman Center colleagues decided that the very process for mounting the /{Eldred}/ lawsuit would be different: “Rather than the secret battles of lawyers going to war, we will argue this case in the open. This is a case about the commons; we will litigate it in the commons. Our arguments and strategy will be developed online, in a space called ‘openlaw.org.’ Key briefs will be drafted online, with participants given the opportunity to criticize the briefs and suggest other arguments. . . . Building on the model of open source software, we are working from the hypothesis that an open development process best harnesses the distributed resources of the Internet community. By using the Internet, we hope to enable the public interest to speak as loudly as the interests of corporations.”~{ Lawrence Lessig, “Commons Law,” June 24, 1999, posted on www.intellectu alcapital.com/issues/issue251/item5505.asp, and Open Law archive at http://cyber.law.harvard.edu/openlaw. }~ +={Eldred v. Reno/Eldred v. Ashcroft+28;Lessig, Lawrence:Eldred v. Reno, and+28|law in contemporary context, and+1} + +Emulating the open-source development model was a nice touch, and perhaps useful; dozens of people around the world registered at the Openlaw site and posted suggestions. Some of the examples and legal critiques were used in developing the case, and the model was later used by lawyers in the so-called DeCSS case, in which a hacker broke the encryption of a DVD. But it turns out that open, distributed creativity has its limits in the baroque dance of litigation; it can’t work when secrecy and confidentiality are important, for example. + +The case, /{Eldred v. Reno}/ — later renamed /{Eldred v. Ashcroft}/ when the Bush II administration took office — was filed in federal district court in Washington, D.C., on January 11, 1999.~{ /{Eldred v. Reno}/ (later, Eldred v. Ashcroft), 537 U.S. 186 (2003), affirming 239 F. 3d 372. }~ The complaint argued that the Copyright Term Extension Act violated Article 1, section 8, clause 8, of the Constitution, which provides that copyright protection shall be of limited duration. It also argued that the Term Extension Act violated the free speech clause of the First Amendment. In some respects, the case could never have been waged without the foundation of legal scholarship produced in the 1990s, which rehearsed a great many of the arguments presented to the Court. In opposition were motion picture studios, the music industry, and book publishers. They argued that Congress had full authority under the Constitution to extend copyright terms, as it had done since the beginning of the republic. +={copyright law:expansion of;Copyright Term Extension Act;Copyright Clause, U.S. Constitution} + +In October 1999, the U.S. District Court brusquely dismissed the case without even holding a trial. Lessig and his Berkman colleagues were not entirely surprised, and quickly set about filing an appeal with the U.S. Court of Appeals for the District of Columbia Circuit. Going beyond the Openlaw experiment at Berkman, they enlisted the support of several lawyers at Jones, Day, Reavis & Pogue. On appeal, Lessig was allowed to argue the case personally to a panel of judges. But once again, in February 2001, the case was dismissed. Lessig considered it a significant victory that it was a 2-1 ruling, however, which meant that a further appeal was possible. Lessig was also encouraged that the dissenter had been the court’s most conservative member, Judge David Sentelle. Lessig requested that the full circuit court hear the case — a petition that was also rejected, this time after picking up support from a liberal dissenter, Judge David Tatel. +={Jones, Day, Reavis & Pogue+4;Sentelle, David;Tatel, David} + +Normally, this would have been the end of the road for a case. Very few appeals court cases are accepted for review by the U.S. Supreme Court, particularly when the case has not even been argued at trial and no other courts have passed judgment on the statute. So it was quite surprising when the Supreme Court, in February 2002, accepted /{Eldred}/ for review and scheduled oral arguments for October 2002. +={Eldred v. Reno/Eldred v. Ashcroft:Supreme Court, and+11} + +At this point, Lessig realized he needed the advice and support of some experienced Supreme Court litigators. He enlisted help from additional lawyers at Jones, Day; Alan Morrison of Public Citizen Litigation Group; Kathleen Sullivan, the dean of Stanford Law School; and Charles Fried, a former solicitor general under President Reagan. Professor Peter Jaszi and the students of his law clinic drafted an amicus brief. +={orrison, Alan;Fried, Charles;Jaszi, Peter;Sullivan, Kathleen} + +A key concern was how to frame the arguments. Attorney Don Ayer of Jones, Day repeatedly urged Lessig to stress the dramatic harm that the Bono Act was inflicting on free speech and free culture. But as Lessig later confessed, “I hate this view of the law. . . . I was not persuaded that we had to sell our case like soap.”~{ Lessig, “How I Lost the Big One,” /{Legal Affairs}/, March/April 2004, available at http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp. }~ Lessig was convinced that the only way /{Eldred}/ could prevail at the Supreme Court would be to win over the conservative justices with a matter of principle. To Lessig, the harm was obvious; what needed emphasis was how the Sonny Bono Act violated “originalist” principles of jurisprudence. (Originalist judges claim to interpret the Constitution based on its “original” meanings in 1791, which includes a belief that Congress has strictly enumerated powers, not broad legislative discretion.) +={Ayer, Don;law:originalist principles of+2} + +“We tried to make an argument that if you were an originalist— in the way these conservative judges said they were in many other cases — then you should look to the original values in the Copyright Clause,” said Lessig. “And we argued that if you did that then you had to conclude that Congress had wildly overstepped its constitutional authority, and so the law should be struck down.”~{ Lessig interview with Richard Poynder, April 7, 2006, p. 25. }~ Flaunting the harm caused by the copyright term extension struck Lessig as showy and gratuitous; he considered the harm more or less selfevident. In the aftermath of a public debate that Lessig once had with Jack Valenti, a questioner on Slashdot, a hacker Web site, suggested that Lessig would be more persuasive if he asserted “a clear conception of direct harm . . . than the secondary harm of the copyright holders getting a really sweet deal.” Lessig conceded that such a focus “has been a weakness of mine for a long time. In my way of looking at the world, the point is a matter of principle, not pragmatics. . . . There are many others who are better at this pragmatism stuff. To me, it just feels insulting.”~{ “Lawrence Lessig Answers Your Questions,” Slashdot.org, December 21, 2001, Question 1, “The question of harm,” posted by “caduguid,” with Lessig response, available at http://interviews.slashdot.org/article.pl?sid=01/12/21/155221. }~ +={copyright law:expansion of;Copyright Clause, U.S. Constitution;Valenti, Jack} + +And so, despite warnings to the contrary, Lessig’s legal strategy relied on a call to uphold originalist principles. Having clerked for Justice Scalia and Judge Posner, Lessig felt that he understood the mind-set and sympathies of the conservative jurists. “If we get to the Supreme Court,” Lessig told Slashdot readers in December 2001, “I am certain that we will win. This is not a left/right issue. The conservatives on the Court will look at the framers’ Constitution— which requires that copyrights be granted for ‘limited times’ — and see that the current practice of Congress . . . makes a mockery of the framers’ plan. And the liberals will look at the effect of these never-ending copyrights on free speech, and conclude that Congress is not justified in this regulation of speech. The Supreme Court doesn’t give a hoot about Hollywood; they will follow the law.”~{ Lessig response to question 11, Slashdot.org, “Will the extension of copyright continue?” posed by “Artifice_Eternity,” available at http://interviews.slashdot.org/article.pl?sid=01/12/21/155221. }~ +={Posner, Richard;Scalia, Antonin;Copyright Clause, U.S. Constitution;copyright law:expansion of+5;Copyright Term Extension Act+5} + +Lessig took pride in the fact that thirty-eight amicus briefs were filed on behalf of /{Eldred}/. They included a wide range of authors, computer and consumer electronics companies, and organizations devoted to arts, culture, education, and journalism. Besides the usual suspects like the Free Software Foundation, Electronic Frontier Foundation, and Public Knowledge, supporting briefs were filed by fifteen economists including Kenneth Arrow and Milton Friedman, Phyllis Schlafly of the Eagle Forum, and the Intel Corporation. + +At oral arguments, Lessig immediately confronted a skeptical bench. Justice Sandra Day O’Connor worried about overturning years of previous copyright term extensions. Justice William Rehnquist proposed. “You want the right to copy verbatim other people’s books, don’t you?” And when Justice Anthony Kennedy invited Lessig to expound upon the great harm that the law was inflicting on free speech and culture, Lessig declined the opportunity. He instead restated his core constitutional argument, that copyright terms cannot be perpetual. “This was a correct answer, but it wasn’t the right answer,” Lessig later confessed in a candid postmortem of the case. “The right answer was to say that there was an obvious and profound harm. Any number of briefs had been written about it. Kennedy wanted to hear it. And here was where Don Ayer’s advice should have mattered. This was a softball; my answer was a swing and a miss.”~{ See http://www.supremecourtus.gov/oral_arguments/argument_transcripts/01-618.pdf. See also Lessig, “How I Lost the Big One,” and Linda Greenhouse, “Justices Hear Arguments in Challenge to Copyrights,” /{New York Times}/, October 10, 2002. A number of Supreme Court opinions in the /{Eldred}/ case can be found at the Openlaw archive at http://cyber.law.harvard.edu/openlaw/eldredvreno. The /{Loyola Los Angeles Law Review}/ held a symposium on /{Eldred v. Ashcroft}/, available at http://llr.lls.edu/volumes/v36-issue1. }~ No justices spoke in defense of the Sonny Bono Act. +={Ayer, Don;Kennedy, Anthony;O’Connor, Sandra Day;Rehnquist, William} + +Yet they had clear reservations about the Supreme Court’s authority to dictate the length of copyright terms. + +A few months later, on January 15, 2003, the Supreme Court announced its ruling: a 7-2 defeat for Eldred. The majority opinion, written by Justice Ruth Bader Ginsburg, did not even raise the “enumerated powers” argument or engage with originalist philosophy. “We are not at liberty to second-guess Congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be,” Ginsburg wrote.~{ 537 U.S. 186 (1993). See also “Court Majority Says It Won’t Second-Guess Congress,” /{New York Times}/, January 16, 2007, p. A22. }~ She likewise ignored the idea that there is a “copyright bargain” between the American people and copyright holders, which entitles the public to certain rights of access to the public domain. As for copyright’s impact on free speech, Ginsburg invoked the fair use doctrine and the “idea/expression dichotomy” (the notion that ideas are freely available but expression can be copyrighted) as sufficient protections for the public. She ignored the fact that both doctrines were (and are) under fierce assault. +={Ginsburg, Ruth Bader;law:originalist principles of;fair use doctrine:copyright law, and;copyright law:fair use doctrine, and|balance of public and private rights} + +Justices Stephen Breyer and John Paul Stevens accepted Lessig’s arguments, and wrote separate dissents. Breyer — a respected scholar of copyright law since his famous 1970 essay “The Uneasy Case for Copyright”~{ Stephen Breyer, “The Uneasy Case for Copyright,” /{Harvard Law Review}/ 84, no. 281 (1970). }~ —agreed that copyright terms had effectively become perpetual, and that the law was therefore unconstitutional. Stevens complained that the majority decision reneged on the copyright bargain and made copyright law “for all intents and purposes judicially unreviewable.” +={Breyer, Stephen;Stevens, John Paul} + +In assessing the broad impact of the /{Eldred}/ ruling, copyright scholar Siva Vaidhyanathan cited law professor Shubha Ghosh’s observation that the /{Eldred}/ ruling had effectively “deconstitutionalized” copyright law. /{Eldred}/ pushed copyright law +={Ghosh, Shubha;Vaidhyanathan, Siva+1} + +_1 farther into the realm of policy and power battles and away from principles that have anchored the system for two centuries. That means public interest advocates and activists must take their battles to the public sphere and the halls of Congress. We can’t appeal to the Founders’ wishes or republican ideals. We will have to make pragmatic arguments in clear language about the effects of excessive copyright on research, teaching, art and journalism. And we will have to make naked mass power arguments with echoes of “we want our MP3” and “it takes an industry of billions to hold us back.”~{ Siva Vaidhyanathan, “After the Copyright Smackdown: What Next?” /{Salon}/, January 17, 2003, at http://www.salon.com/tech/feature/2003/01/17/copyright.print.html. }~ +={copyright law:balance of public and private rights} + +2~ A Movement Is Born +={Eldred v. Reno/Eldred v. Ashcroft:effects of+12} + +The /{Eldred}/ case had a paradoxical effect. Early on, Lessig had said, “We didn’t want to make it a big political cause. We just wanted to make it an extension of the existing Supreme Court jurisprudence, because we realized that the only way to win the case was to win the conservatives’ view, and the conservatives were not likely to be motivated by great attacks on media concentration.”~{ Interview with Poynder, April 7, 2006, p. 25. }~ The upshot of the Court’s ruling was to intensify the political battles over copyright law. While such resistance was already growing, the /{Eldred}/ ruling and the publicity surrounding it spawned a new generation of “copyfighters.” Lessig had wanted to protect the commons through law, only to find that the courts were unwilling to offer any help. Any answers would now have to be pursued through politics, culture, and technology — and ingenious uses of law where feasible. How to proceed in this uncharted territory became the next challenge, as we see in chapter 4. + +After four years of relentless work, Lessig was frustrated and dejected. “I had failed to convince [the Supreme Court] that the issue was important,” he wrote in a frank confessional, “and I had failed to recognize that however much I might hate a system in which the court gets to pick the constitutional values that it will respect, that is the system we have.”~{ Lessig, “How I Lost the Big One.” See also Lessig, /{Free Culture}/ (New York: Penguin, 2004), pp. 228–48. }~ For a constitutional law scholar, it was a rude awakening: constitutional originalists could not be taken at their word! Scalia and fellow justice Clarence Thomas had declined to stand behind their jurisprudential principles. +={law:originalist principles of+1;Scalia, Antonin;Thomas, Clarence} + +Yet Lessig had certainly been correct that /{Eldred}/ would not succeed unless it convinced the Court’s conservative majority. The fact that the originalist gambit failed was perhaps the strongest message of all: /{nothing}/ would convince this Court to rein in the excesses of copyright law. + +Even before the Supreme Court had delivered its ruling, Lessig admitted his misgivings about the power of law to solve copyright’s failings: “The more I’m in this battle, the less I believe that constitutional law on its own can solve the problem. If Americans can’t see the value of freedom without the help of lawyers, then we don’t deserve freedom.”~{ Lessig response to Question 11, “Cyberspace Amendment,” posed by “kzinti,” in Slashdot, available at http://interviews.slashdot.org/article.pl?sid=01/12/21/155221. }~ Yet mobilizing freedom-loving Americans to seek redress from Congress was also likely to be doomed. Hollywood film studios and record companies had showered some $16.6 million and $1.8 million, respectively, on federal candidates and parties in 1998. Legislators know who butters their bread, and the public was not an organized influence on this issue. No wonder a progressive copyright reform agenda was going nowhere. +={Copyright Term Extension Act+1;Eldred v. Reno/Eldred v. Ashcroft:Supreme Court, and;law:limited power of;copyright law:expansion of+1} + +Four years after the /{Eldred}/ ruling, Lessig had some second thoughts about the “Mickey Mouse” messaging strategy. Opponents of the copyright term extension, including Lessig, had often flaunted Mickey motifs in their dealings with the press and railed at the “Mickey Mouse Protection Act.” Yet in 2006, Lessig lamented to one interviewer that “the case got framed as one about Mickey Mouse. Whereas the reality is, who gives a damn about Mickey Mouse? The really destructive feature of the Sonny Bono law is the way it locks up culture that has no continuing commercial value at all. It orphaned culture. So by focusing on Mickey Mouse, the Court thought this was an issue of whether you believed in property or not. If, however, we had focused people on all the culture that is being lost because it is locked up by copyright, we might have succeeded.”~{ Interview with Poynder, April 7, 2006, pp. 26–27. }~ + +The lasting impact of the /{Eldred}/ case, ironically, may have less to do with the law than with the cultural movement it engendered. The lawsuit provided a powerful platform for educating the American people about copyright law. A subject long regarded as arcane and complicated was now the subject of prominent articles in the /{New York Times}/, /{Salon}/, computer magazines, wire services, and countless other publications and Web sites. A cover story for the /{Los Angeles Times}/'s Sunday magazine explained how the case could “change the way Hollywood makes money — and the way we experience art.” /{Wired}/ magazine headlined its profile of Lessig “The Great Liberator.” Lessig himself barnstormed the country giving dozens of presentations to librarians, technologists, computer programmers, filmmakers, college students, and many others. Even Lessig’s adversary at the district court level, Arthur R. Miller, a Harvard Law School professor, agreed, “The case has sparked a public discussion that wasn’t happening before.” +={Miller, Arthur R.} + +Lessig’s orations often provoked the fervor of a revival meeting — and led to more than a few conversions. This may appear surprising because Lessig, with his receding hairline and wireframe glasses, strikes an unprepossessing pose. In the professorial tradition, he can sometimes be didactic and patronizing. But on the stage, Lessig is stylish, poised, and mesmerizing. His carefully crafted talks are intellectual but entertaining, sophisticated but plainspoken— and always simmering with moral passion. He typically uses a customized version of Keynote, a Macintosh-based program similar to PowerPoint, to punctuate his dramatic delivery with witty visuals and quick flashes of words. (Experts in professional presentations have dubbed this style the “Lessig Method,” and likened it to the Takahashi Method in Japan because slides often use a single word, short quote, or photo.)~{ Garr Reynolds’s blog on professional presentation design, “The ‘Lessig Method’ of Presentation,” October 5, 2005, available at http://presentationzen.blogs.com/presentationzen/2005/10/the_lessig_meth.html. }~ + +More than a sidebar, Lessig’s public speaking has been an important aspect of his leadership in building a commons movement. His talks have helped some fairly sequestered constituencies in technical fields — computer programming, library science, Internet policy, copyright law — understand the larger political and cultural significance of their work. The results have sometimes been galvanizing. As one veteran hacker told me in 2006, “There’s a whole connoisseurship of Lessig talks. He’s a little past his peak right now — but there was a period where, like when he gave the lecture at OSCON [a conference of open-source programmers], when he was done, they wanted to start a riot. People were literally milling around, looking for things to smash. He was saying to these people who worked on open source, ‘There’s a larger world context to your work. The government is doing things — and you can stop them!’ ”~{ Interview with Aaron Swartz, October 10, 2006. }~ +={Lessig, Lawrence:public speaker, as} + +Following oral arguments before the Supreme Court, the movement — such as it was — had a rare gathering of its leaders. Public Knowledge co-hosted a luncheon for those who had aided the lawsuit. The diners spanned the worlds of libraries, computers, Internet publishing, public-interest advocacy, and many other fields. The event was held at Washington’s Sewall-Belmont House, where the National Woman’s Party once led the fight for women’s suffrage. This prompted Gigi Sohn, president of Public Knowledge, to declare, “We, too, are building a movement.”~{ Amy Harmon, “Challenge in Copyright Case May Be Just a Beginning,” /{New York Times}/, October 14, 2002. }~ +={Sohn, Gigi} + +So after arguing — and losing — before the U.S. Supreme Court, what does a copyright superstar do for an encore? + +A seed had already been planted at the Starbucks meeting four years earlier. Eldred recalls telling Lessig, “I think this case is very important, and I think you’re the right guy for this. But at the same time, I’d like to talk to you about something else. I really think that we need to start up some sort of a copyright conservancy, which would be sort of like a nature conservancy. It would allow people to donate books to the public domain; we could then take ownership of them. They could maybe have a tax deduction for them, and we could — instead of having the book privately owned — they would be in the public domain, maybe before the copyright term expired. We could sort of have an independent group maintain this conservancy, and allow the books to be put on the Internet for free.” +={copyright conservancy;Eldred, Eric:copyright conservancy, and|Lessig, and+1;Lessig, Lawrence:Eldred, and+1;Eldred, Eric:Lessig, and|public domain, and} + +Eldred remembers that Lessig “was sort of stunned. He didn’t have anything to say for a little while. We sort of looked at each other, and I think he was very shocked and surprised that I said that. And he said, ‘I don’t think we can do it until we’ve done the work on the copyright term extension act suit, but I promise to do it.’”~{ Interview with Eric Eldred, August 1, 2006. }~ + +:B~ PART II + +:C~ The Rise of Free Culture + +1~intro_ii [Intro] -# + +To the commoners seeking to build a new cultural universe, the failure of the /{Eldred}/ case in the U.S. Supreme Court was both depressing and liberating. It confirmed what the legal scholars of the 1990s had long suspected— that both Congress and the courts were captives to a backward-looking vision of copyright law. Government was tacitly committed to a world of centralized and commercial mass media managed by elite gatekeepers. That was not likely to change soon. +={Eldred v. Reno/Eldred v. Ashcroft:effects of:Supreme Court, and} + +As for helping build a new digital republic with a more open, democratic character, the Clinton administration made its intentions clear in its infamous White Paper. It wanted to convert the gift economy of the Internet into a wall-to-wall marketplace. It wanted to give sellers absolute control over content and limit the disruptions of innovative newcomers. The government, acting on behalf of the film, record, and book industries, had no desire to legitimize or fortify the sharing culture that was fast gaining a hold on the Internet. Quite the contrary: strengthening the public’s fair use rights, access to the public domain, and online free speech rights might interfere with the perceived imperatives of electronic commerce. /{Freedom}/ would therefore have to be defined as the freedom of consumers to buy what incumbents were selling, not as a robust civic freedom exercised by a sovereign citizenry. +={Clinton administration:White Paper;fair use doctrine:White Paper vs.;White Paper [on copyright];gift economy;Internet:gift economy of;free culture:Internet, of the} + +By the conclusion of /{Eldred}/, in 2003, it was clear that the copyright dissidents were not just confronting one policy battle or another; they were confronting an antiquated and entrenched worldview. While Lessig, Eldred, and the growing band of commoners realized that it was important to pay close attention to pending legislation and lawsuits, many of them also realized that the real challenge was to develop a new vision — and then try to actualize it. +={Eldred, Eric:copyright law, and} + +A more affirmative, comprehensive vision was needed to supersede the limited intellectual parameters of copyright law.Copyright law was a mode of property discourse, after all, and that discourse simply could not adequately express the aspirations of hackers, citizen-journalists, librarians, academics, artists, democrats, and others trying to secure open online spaces for themselves. The online insurgents acknowledged the great importance of fair use and the public domain, but they also considered such doctrines to be vestiges of an archaic, fraying legal order. It was time to salvage what was valuable from that order, but otherwise instigate a new language, a new aesthetic, a new legal regime, a new worldview. +={copyright law:property rights, and;property rights:copyright law, and} + +This meant venturing into risky, unknown territory. Law professors accustomed to working within the comfort of the academy would have to clamber onto public stages and set forth idealistic, politically inflected scenarios for Internet culture. Activists accustomed to rhetorical critiques would have to initiate pragmatic, results-driven projects. Free software hackers would have to invent new software and digital protocols. Volunteers would need to be enlisted and organized and funding secured to sustain bare-boned organizational structures. Wholly new constituencies would have to be imagined and mobilized and brought together into something resembling a new movement. Part II, The Rise of Free Culture, describes the building of this foundation from 2000 to 2005. + +1~ 4 INVENTING THE CREATIVE COMMONS + +/{A public-spirited cabal schemes for a way to legalize sharing.}/ + +Larry Lessig remembers his Starbucks conversation with Eric Eldred as a “crystallizing moment,” a revelation that the stakes in copyright reform were much higher than he had originally imagined. Both Lessig and Eldred obviously wanted to win the lawsuit and recognized its importance. But Eldred had made clear that he didn’t just want to roll back regressive laws; he wanted to develop an affirmative and sustainable alternative. +={copyright law:property rights, and+1;property rights:copyright law, and+1;Eldred, Eric:copyright law, and+2|Lessig, and+16;Lessig, Lawrence:Eldred, and+16} + +This got Lessig thinking: “So, okay — you get the Supreme Court to strike the laws down, but you still live in a world where people think that everything is property and has to be owned. If nobody has a political awareness about why the judicial response makes sense, then it’s a pretty empty result.”~{ Interview with Lawrence Lessig, March 20, 2006. }~ Throughout the /{Eldred}/ case, paradoxically enough, Lessig says he was “skeptical” of the traditional liberal strategy of seeking redress through the courts. +={Eldred v. Reno/Eldred v. Ashcroft:Supreme Court, and} + + +The turning point for him, Lessig recalled, was in recognizing that Eldred was not just a plaintiff in a test case but “someone trying to build a movement around a practice of making things available in a way that took advantage of the infrastructure of the Net.”~{ Ibid. }~ True, Eldritch Press resembled an old-style archive of canonical works. Yet Eldred’s goal all along had been to host an active social community of book lovers, not just provide a repository for old texts. The Web site’s real importance was in the social activity it represented — the fact that thousands of participant-readers could come together around a self-selected amateur eager to build a new type of social community and information genre. +={Eldritch Press;World Wide Web:social activity on+7} + +Lessig told me that when he recognized Eldred’s Web site as a new type of social practice, it helped define the challenge: “The question became a very technical, legal one: How could we instantiate that movement?” Lessig said he needed to find a way to “disambiguate the social practice.” By that bit of tech-legalese, he meant, How could the practices and values animating Eldred’s Web site be articulated in law, denoted on the Web, and thereby be seen for what they were: a new mode of social practice and cultural freedom? + +It helps to remember that in 1998 and the following years, the legality of sharing online works and downloading them was highly ambiguous. Prevailing legal discourse set forth a rather stark, dualistic world: either a work is copyrighted with “all rights reserved,” or a work is in the public domain, available to anyone without restriction. The mental categories of the time offered no room for a “constituency of the reasonable,” in Lessig’s words. +={copyright law:public domain vs.;public domain:copyright law, and} + +Copyright law made nominal provisions for a middle ground in the form of the fair use doctrine and the public domain. But Lessig realized that fair use was “just a terrible structure on which to build freedom. There are basically no bright lines; everything is a constant debate. Of course, we don’t want to erase or compromise or weaken [these doctrines] in any sense. But it’s very important to build an infrastructure that doesn’t depend upon four years of litigation.” Or as Lessig was wont to put it in his impassioned performances on the stump: “Fuck fair use.”~{ Robert S. Boynton, “Righting Copyright: Fair Use and Digital Environmentalism,” /{Bookforum}/, February/March 2005, available at http://www.robertboynton.com/articleDisplay.php?article_id=1. }~ +={copyright law:fair use doctrine, and+2;fair use doctrine:copyright law, and+2;Lessig, Lawrence:fair use, on+2} + +This was a theatrical flourish, of course. Back in Palo Alto, Lessig in 2001 had launched the Center for Internet & Society at Stanford Law School, which actively takes on lawsuits seeking to vindicate the public’s fair use rights, among other things. One notable case was against Stephen Joyce, the grandson of novelist James Joyce. As executor of the Joyce literary estate, Stephen Joyce steadfastly prevented dozens of scholars from quoting from the great writer’s archive of unpublished letters.~{ See, e.g., D. T. Max, “The Injustice Collector,” /{New Yorker}/, June 19, 2006, pp. 34ff. }~ (After losing a key court ruling in February 2007, the Joyce estate settled the case on terms favorable to a scholar who had been denied access to the Joyce papers.) +={Joyce, Stephen} + +But Lessig’s intemperance toward fair use has more to do with the almost subliminal void in legal discourse and political culture. There was no way to talk about the social behaviors exemplified by Eldred’s Web site except through crabbed, legalistic rules. The only available language, the default vocabulary, is copyright law and its sanctioned zones of freedom, such as fair use. Lessig wanted to open up a new, more bracing line of discourse. “We wanted to rename the social practice,” he said. It sounds embarrassingly grandiose to state it so bluntly, but in later years it became clear to Lessig and his loose confederation of colleagues that the real goal was to /{imagine and build a legal and technical infrastructure of freedom}/. +={Lessig, Lawrence:freedom, and|law in contemporary context, and+2} + +Initially, the goal was more exploratory and improvisational — an earnest attempt to find leverage points for dealing with the intolerable constraints of copyright law. Fortunately, there were instructive precedents, most notably free software, which by 2000, in its opensource guise, was beginning to find champions among corporate IT managers and the business press. Mainstream programmers and corporations started to recognize the virtues of GNU/Linux and opensource software more generally. Moreover, a growing number of people were internalizing the lessons of Code, that the architecture of software and the Internet really does matter. +={free software:open source software, as;GNU/Linux;software:open source;Internet:architecture of+1;Lessig, Lawrence:Code and Other Laws of Cyberspace} + +Even as he sought to prevail in /{Eldred}/, Lessig understood that enduring solutions could not be conferred by the U.S. Supreme Court; they had to be made real through people’s everyday habits. The commoners needed to build a new set of tools to actualize freedom on the Internet, and to develop a new language, a new epistemology, a new vision, for describing the value proposition of sharing and collaboration. The big surprise, as we will see in chapter 6, was the latent social energies poised to support this vision. +={Eldred v. Reno/Eldred v. Ashcroft+7:Supreme Court, and;Internet:freedom of;Lessig, Lawrence:Eldred v. Reno, and|freedom, and} + +2~ What If . . . ? + +Shortly after the /{Eldred}/ case was filed in January 1999, a number of Harvard Law students working with Lessig announced the formation of a new group, “Copyright’s Commons.”~{ The Copyright’s Commons Web site is now defunct but can be found at the Internet Archive’s Wayback Machine, at http://cyber.law.harvard.edu/cc. }~ Led by Jennifer Love and Ashley Morgan, Copyright’s Commons published a monthly Web newsletter that provided updates on the progress of the /{Eldred}/ case and miscellaneous news about the public domain. +={Love, Jennifer;Morgan, Ashley;Copyright’s Commons+3:See also Creative Commons;Creative Commons (CC):Copyright’s Commons, as+3;Eldred v. Reno/Eldred v. Ashcroft:Copyright’s Commons, and+3} + +Copyright’s Commons described itself as “a coalition devoted to promoting the public availability of literature, art, music, and film.” It was actually a named plaintiff in the /{Eldred}/ case. + +That spring, Copyright’s Commons announced a new project that it called the “counter-copyright [cc] campaign.” Billed as “an alternative to the exclusivity of copyright,” the campaign invited the general public to “show your support for the public domain by marking your work with a [cc] and a link to the Copyright’s Commons website. . . . If you place the [cc] icon at the end of your work, you signal to others that you are allowing them to use, modify, edit, adapt and redistribute the work that you created.” +={counter-copyright (cc) campaign} + +The project may have been an imaginative call to arms, but there was no infrastructure behind it except one Web page, and no background material except a Web link to the Open Source Initiative. Wendy Seltzer, a Harvard Law student at the time, recalled that the [cc] symbol produced by Copyright’s Commons “was supposed to be a public domain dedication, but nobody had yet gone through all of the thinking about what was actually required to put something into the public domain, and did this satisfy the ‘affirmative act’ requirements [of the law]? Part of the germ of the Creative Commons was thinking about what would it take to make this — the [cc] symbol — an actual, meaningful, legally binding statement.”~{ Interview with Wendy Seltzer, September 28, 2006. }~ +={Seltzer, Wendy} + +Lessig, in the meantime, was keeping a frenetic schedule. He was overseeing the progress of the /{Eldred}/ lawsuit; traveling to give speeches to dozens of conferences and forums every year; promoting his book Code; and writing a monthly column in the /{Industry Standard}/ until it went under with the tech bubble collapse in 2001. The year before, Kathleen Sullivan of Stanford Law School persuaded Lessig to join its faculty and supervise a new law clinic, the Center for Internet and Society.~{ Ross Hanig, “Luring Lessig to Stanford Law School,” /{Recorder}/, October 17, 2001, at http://www.law.com. }~ Along the way Lessig also got married to Bettina Neuefeind, a human rights lawyer. +={Sullivan, Kathleen;Neuefeind, Bettina;Center for Internet and Society;Lessig, Lawrence:Code and Other Laws of Cyberspace;Lessig, Lawrence:Eldred v. Reno, and+1} + +Work on /{Eldred}/ intensified after the district court dismissed the case in October 1999. Lessig embarked on a new round of legal strategizing with colleagues to prepare the appeals court brief, which was submitted in May 2000. Throughout this period, intellectual property (IP) thinkers and tech activists — especially those in the Lessig/Cambridge/Stanford axis — were highly attuned to the gathering storm in copyright and software policy. + +One of the most tumultuous developments was Napster, a homemade file-sharing software program that had become an international sensation. Released in June 1999, Napster was the creation of hacker Shawn Fanning, then a student at Northeastern University in Boston. Within a year, the free program had been downloaded by an estimated 70 million users, drawing fierce denunciations by the recording industry and Washington officials. Napster used centralized file directories on the Internet to connect users to music files on thousands of individual computers. By enabling people to download virtually any recorded music in existence, for free, it was as if the fabled “cosmic jukebox” had arrived. Of course, much of the copying was blatantly illegal. Yet consumers welcomed Napster as one of the few vehicles they had for thumbing their nose at a reactionary music industry that refused to offer digital downloads. The Recording Industry Association of America (RIAA) sued Napster in December 1999, and succeeded in shutting it down in July 2001.~{ Wikipedia entry, at http://en.wikipedia.org/wiki/Napster. }~ +={Fanning, Shawn;Napster+2;Recording Industry Association of America (RIAA)+1} + +The Napster craze intensified the polarized property discourse that Lessig and his colleagues were trying to transcend. Napster encouraged an either/or debate by suggesting that a song is either private property or contraband; there was no middle ground for fair use or the public domain. While the RIAA and acts like Metallica and Madonna railed against massive copyright infringements, defenders of Napster were quick to point out its promotional power. An album produced by the English rock band Radiohead, for example, was downloaded for free by millions of people before its release — a fact that many credit with pushing the album, Kid A, to the top of the Billboard CD sales chart. But such claims carried little weight against those defending what they considered their property rights. +={Radiohead;property rights:copyright law, and+2;copyright law:property rights, and+2|public domain vs.+1;public domain:copyright law, and+1} + +The controversy over Napster was clearly influential in shaping the debate over how to protect the public domain. Berkman Center co-director Jonathan Zittrain recalls, “If we’re trying to hang the hopes of the community on the right just to copy stuff, we’re going to lose — and maybe we should. [The issue] is actually about the right to manipulate the symbols and talismans of our culture” — what Professor Terry Fisher likes to call “semiotic democracy.”~{ Interview with Jonathan Zittrain, September 28, 2006. }~ +={Zittrain, Jonathan;Fisher, William (Terry);free culture:sharing ethic of+1;copyright law:sharing economy vs.+1;democracy:semiotic} + +The problem was that copyright discourse, at least in the hands of the record and film industries, refused to acknowledge that the sharing and reuse of works might be necessary, desirable, or legal. The concept did not compute. There was a conspicuous void in the prevailing terms of debate. So the challenge facing the Cambridge copyright cabal was really a riddle about epistemology, law, and culture rolled into one. How could a new type of free culture, independent of the market, be brought into existence? And how could the creative works of this imagined culture be made legally “shareable” instead of being automatically treated as private property? + +This was an unprecedented challenge. When culture was chiefly a set of analog media — books, records, film — there had been affirmative legal limits on the scope of copyright. Before 1978, the law regulated only commercial uses of a work and only works that had been formally registered, which meant that most works automatically remained in the public domain. Moreover, there was a natural, physical “friction” preventing copyright holders from over-controlling how a work could circulate and be used. When words were fixed in books and sounds embedded in vinyl, people could circulate those objects freely, without having to ask permission from copyright holders. In the digital world, however, the physical constraints of analog media disappeared. Copyright holders now claimed that every digital blip, however transient, constituted a “copyright event” subject to their unilateral control. In practice, this greatly weakened the rights a person could enjoy under the fair use doctrine. +={copyright law:public domain vs.+3;public domain:copyright law, and+3;fair use doctrine:copyright law, and+1|digital age, in+1;copyright law:digital age, in+1|fair use doctrine, and+1|limits on the scope of} + +In a sense, the entire legal and cultural framework for free culture needed to be reimagined so it could function in the digital environment. The terms of fair use essentially had to be renegotiated — an undertaking that copyright law had never had to tackle in the past. But how might that be achieved when both Congress and the courts were beholden to the copyright maximalists’ worldview? + +Such were the kinds of conversations that swirled around the Berkman Center, Harvard Law School, MIT, and a handful of progressive intellectual property circles. Such discussions had been going on for years, especially in the context of free software and public-domain scholarship, but now they were reaching the lay public. The Napster and /{Eldred}/ cases were vehicles for educating the press and the public, and Lessig’s book /{Code}/ was becoming must reading for anyone who cared about Internet governance and digital culture. +={Berkman Center for Internet & Society;Napster;Lessig, Lawrence:Code and Other Laws of Cyberspace} + +Amid this swirl of copyright controversy, MIT professor Hal Abelson had lunch with Lessig at the Harvard Faculty Club in July 2000. The two had co-taught a class on cyberlaw two years earlier and shared many interests in the confluence of copyright and technology. One topic that day was Eric Eldred’s idea of a copyright conservancy — a “land trust” for public-domain works. On August 1, 2000, Abelson sent Zittrain an e-mail: +={Abelson, Hal:copyright conservancy idea, and+5|cyberlaw, and+5;Eldred, Eric:copyright conservancy, and;Zittrain, Jonathan;Eldred v. Reno/Eldred v. Ashcroft:effects of;copyright conservancy+35} + +_1 /{Here’s an idea that we might be able to get going, and where the Berkman Center could help.}/ + +_1 /{Let’s set up a tax-free, charitable foundation to which artists and record label companies could donate the copyright for recorded music. I’m thinking of all the old music for which there isn’t currently an active market.}/ + +_1 /{The foundation would arrange for this stuff to be loaded for free onto the internet and give the public permission to use it. The artists and record labels get a tax writeoff. The RIAA and Napster hug and kiss, and everyone goes home happy.}/ +={Recording Industry Association of America (RIAA)} + +_1 /{What do you think?}/ + +_1 /{Hal}/ + +Zittrain loved the idea, and suggested that it might make a great clinical project for Harvard Law students that fall. But he wondered if the Copyright Clearinghouse Center — a licensing and permissions organization for music — already offered such a service (it didn’t). Lessig proposed that Stanford and Harvard law schools jointly develop the program. He immediately identified one glaring problem: it would be difficult to “establish a process for valuing gifts of copyrighted stuff that would be clearly understood and would be accepted by the IRS.” +={Zittrain, Jonathan+1} + +What ensued was a lengthy and irregular series of e-mail conversations and social encounters through which the idea was chewed over and refined. Lessig acted as the “supernode” among a small group of participants that initially included Zittrain, Eldred, Nesson, and Diane Cabell, a lawyer and administrator at the Berkman Center. Within a month, others were invited into the conversation: Richard Stallman; Duke Law professors James Boyle and Jerome H. Reichman; and documentary film producer Eric Saltzman, who had just become director of the Berkman Center. +={Berkman Center for Internet & Society;Boyle, James:CC formation, and;Cabell, Diane;Reichman, Jerome H.;Nesson, Charles;Saltzman, Eric;Stallman, Richard:Copyright’s Commons, and;Eldred, Eric:copyright conservancy, and} + +A digital archive for donated and public-domain works had great appeal. Just as land trusts acted as trustees of donated plots of land, so the Copyright’s Commons (as Lessig proposed that it be named) would be a “conservancy” for film, books, music, and other works that were either in the public domain or donated. Six weeks after Abelson’s original suggestion, Lessig produced a “Proposal for an Intellectual Property Conservancy” for discussion purposes.~{ Lawrence Lessig, “Proposal for the Intellectual Property Conservancy,” e-mail to ipcommons group, November 12, 2000. }~ He now called the concept “an IP commons” — “the establishment of an intellectual property conservancy to facilitate the collection and distribution under a GPL-like license of all forms of intellectual property.” As elaborated by two Harvard Law School students, Chris Babbitt and Claire Prestel, “The conservancy will attempt to bridge the gap between authors, corporate copyright holders and public domain advocates by providing a repository of donated works which we believe will create a more perfect ‘market’ for intellectual property.”~{ Chris Babbitt and Claire Prestel, “Memorandum to Michael Carroll, Wilmer Cutler Pickering, ‘IP Conservancy,’ ” October 24, 2000. }~ +={belson, Hal:copyright conservancy idea, and+2;Babbitt, Chris;Prestel, Claire;Copyright’s Commons+27;Creative Commons (CC):Copyright’s Commons, as+27;IP Commons+27;Lessig, Lawrence:Copyright’s Commons, and+27} + +Friendly critiques started arriving immediately. Stallman considered the proposal a “good idea overall,” but as usual he objected to the words, such as “intellectual property” and “copyright protection,” which he considered “propaganda for the other side.”~{ E-mail from Richard Stallman to Lessig, September 11, 2000. See also http://www.gnu.org/philosophy/words-to-avoid.html. Stallman suggested calling the project the “Copyright and Patent Conservancy.” }~ Abelson, a friend and colleague of Stallman’s at MIT, was not finicky about word choices, but he did believe that software donations should be directed to the Free Software Foundation, not to the envisioned project. FSF already existed, for one thing, but in addition, said Abelson, “It may be detrimental to have people initially associate this [new project] too closely with the FSF. . . . We need to craft a public position that will unify people. An FSF-style ‘let’s undo the effects of all those evil people licensing software’ is not what we want here.”~{ E-mail from Hal Abelson to Lessig, September 12, 2000. }~ Some people suggested attracting people to the conservancy by having “jewels” such as material from the estates of deceased artists. Another suggested hosting special licenses, such as the Open Audio License, a license issued by the Electronic Frontier Foundation in 2001 that lets musicians authorize the copying and reuse of their songs so long as credit is given and derivative songs can be shared. +={Stallman, Richard:Copyright’s Commons, and;Abelson, Hal:Free Software Foundation, and+1;Electronic Frontier Foundation (EFF);Free Software Foundation} + +The most difficult issue, said Abelson, was the economics of the project. The care and maintenance of donations, such as the master version of films, could be potentially huge expenses. Digitizing donated works could also be expensive. Finally, there were questions about the economic incentives to potential donors. Would people really wish to donate works that have significant cash value? + +Answers to such questions were hardly self-evident, but there were encouraging signs. After Lessig gave a speech at the University of Michigan in September 2000, a man came up to him and announced, “I’m one of the people who benefited by the Mickey Mouse Protection Act.” It was Robert Frost, Jr., son of the great poet. Frost said, “I obviously need to check with my family, but we may be interested in becoming a contributor to your conservancy.”~{ E-mail from Lawrence Lessig to ipcommons group, September 8, 2000. }~ If Robert Frost’s estate could come forward with his literary legacy, perhaps there were others willing to do the same. +={Frost, Robert, Jr.;Lessig, Lawrence:public speaker, as;Copyright Term Extension Act} + +When Berkman Center director Eric Saltzman joined the conversation, he raised a series of difficult questions about the whole idea: +={Saltzman, Eric+1} + +_1 Why would a person or corp. donate copyrighted materials? Larry’s draft implies a benefit to the IP owner — does this mean broader Internet facilitated use, and not merely a tax deduction? Under what circumstances, if any, does the Conservancy charge for use of its IP? If a user modifies a story, say, producing a screenplay, to whom does that screenplay belong? Would a motion picture based upon that screenplay owe $$ to the Conservancy? If so, how much (this is the damages phase of the /{Rear Window}/ case)?~{ This case, /{Stewart v. Abend}/, 100 S. Ct. 1750 (1990), required the copyright owners of Alfred Hitchcock’s movie /{Rear Window}/ to pay damages to the author of a book upon which the film was based. Saltzman was concerned that the conservancy would be liable for any illicit derivative works. See Daniel A. Saunders, “Copyright Law’s Broken Rear Window: An Appraisal of Damage and Estimate of Repair,” /{California Law Review}/ 80, no. 1 (January 1992), pp. 179–245. }~ Wouldn’t a new, hopeful band prefer to allow free use of its song(s) on a commercially promoted site like MP3.com rather than the Conservancy site? All asking: How to make the Conservancy into a useful garden, not a well-meaning weed patch of unwanted, neglected IP?~{ E-mail to ipcommons group, September 18, 2000. }~ + +By early October 2001, some of these questions had been provisionally answered. For example: Only digital works would be accepted initially. No limitations or restrictions would be set on the use of donated works. Prospective academic partners would include the University of California at Berkeley, Duke, Harvard, MIT, and Stanford. Lessig suggested both Richard Stallman and Jack Valenti as possible board members. The central goal was to develop a new sort of noncommercial space in cyberspace for the sharing and reuse of music, visual art, film, literature, nonfiction, academic work, software, and science.~{ E-mail from Lawrence Lessig to ipcommons group, November 12, 2000. }~ +={Valenti, Jack;Stallman, Richard:Copyright’s Commons, and} + +But many questions still hung in the air. Could the free software ethic really translate to other creative genres? Would tax incentives elicit donations of works? Would independent appraisals of donated works be needed? How would the conservancy search the titles of works and get permissions clearances? + +For all of its brainpower and commitment, Lessig’s rump caucus might not have gotten far if it had not found a venturesome source of money, the Center for the Public Domain. The center — originally the Red Hat Center — was a foundation created by entrepreneur Robert Young in 2000 following a highly successful initial public offering of Red Hat stock. As the founder of Red Hat, a commercial vendor of GNU/Linux, Young was eager to repay his debt to the fledgling public-domain subculture. He also realized, with the foresight of an Internet entrepreneur, that strengthening the public domain would only enhance his business prospects over the long term. (It has; Young later founded a print-on-demand publishing house, Lulu.com, that benefits from the free circulation of electronic texts, while making money from printing hard copies.) +={Young, Robert;Red Hat;GNU/Linux:Red Hat, and;enter for the Public Domain+2;public domain:Center for Public Domain+2} + +The director of the center, Laurie Racine, a former geneticist and business professor, was skilled at making shrewd strategic grants and “character bets” in public-domain activism. Because the center was not hobbled by the bureaucracy or timidity that afflicts many large foundations, it was able to make swift decisions and bold bets on innovative projects. (I came to work closely with Racine on a number of projects, including the co-founding of Public Knowledge, in 2001.) +={Racine, Laurie+1} + +Lessig met with Racine in October 2000. On a napkin, he sketched his idea for expanding copyright for authors. He came away with funding for a meeting at the Berkman Center and, later, a $100,000 commitment to launch the IP conservancy; the Center for the Public Domain eventually put up $1 million to get the project going, well before other funders saw the promise of the idea. Racine wanted her new center to be associated with “a project that has broad vision, credibility, range and staying power.” She saw Lessig’s project as having all of those things.~{ E-mail from Lawrence Lessig to ipcommons group, October 11, 2000, which contained e-mail from Laurie Racine to Lessig, October 25, 2000. }~ The grant was based more on the concept than a specific plan, however. At the time it was not entirely clear if the project would own and manage digital works, host Web services that made things freely available, or provide legal and software tools — or something else.~{ E-mail from Lawrence Lessig to ipcommons group, November 12, 2000. }~ There was, nonetheless, a great sense of mission and urgency to get under way. + +Interestingly, two similar initiatives were also in the early stages of development. The Knowledge Conservancy, led by David Bearman at Carnegie Mellon University in Pittsburgh, had a similar model of accepting donations of materials and making them available online. It focused more on sponsorship donations and memberships, while Lessig’s group was more oriented toward legal research and Web hosting of works. Another project, OpenCulture.org, planned to compensate artists for contributions to the public domain, but apparently it never took off.~{ http://web.archive.org/web/*/http://Openculture.org. }~ Lessig and his group were not averse to joining forces with others, but they were intent on vetting their own business model, such as it was, before joining anyone else’s venture. +={Bearman, David;OpenCulture.org;Knowledge Conservancy} + +One turning point came in January 2001 after Saltzman had met with several lawyers at Wilmer, Cutler & Pickering, a prominent law firm in Washington, D.C.~{ Contained in e-mail from Christina Ritchie to ipcommons group, December 15, 2000. }~ After conversations with attorneys David Johnson and Michael W. Carroll, it became clear that a nonprofit trust managing donated material could face considerable liability if it turned out that the donors did not actually own the works. To explore this issue, Carroll produced a much-praised legal memo that raised a red flag: “What if we were fools, and the person who gave us the rights [to a work] actually never had the rights and suddenly we get sued for infringement?” asked Carroll.~{ Michael Carroll, “Potential Copyright Liability and DMCA Safe Harbor Relief for Creative Commons,” appendix to “Briefing Book for Creative Commons Inaugural Meeting,” May 7, 2001. }~ One successful lawsuit could sink the whole enterprise. +={Carroll, Michael W.;Johnson, David R.;Wilmer, Cutler & Pickering;Saltzman, Eric+8} + +The project was caught in a conundrum. It wanted to legalize a whole set of social practices for sharing and reusing creative works — but establishing a content intermediary for that purpose appeared to be financially prohibitive under the law. It could be hugely expensive to clear titles and indemnify the organization and future users against copyright infringement risks. +={copyright law:sharing economy vs.+1} + +For a few months, various people in Lessig’s orbit suggested complicated schemes to try to finesse the legal problems. For example, one way that the conservancy could reduce its liability would be to simply point to the Web locations of public-domain materials, in the style of Napster’s centralized index of songs. This would also avoid the nuisance and expense of clearing titles on thousands of works. Another idea was to create a “three zone system” of content — Zone A for content that the conservancy owned and licensed; Zone B for content that was merely hosted at the conservancy site with no copyright representations; and Zone C, a simple search engine with links to public-domain content. Each of these zones, in turn, raised a flurry of complicated, speculative legal issues.~{ E-mail from Eric Saltzman to ipcommons group, January 19, 2001. }~ +={Napster;Copyright’s Commons:three zone system of} + +None of the proposed alternatives got much traction, especially when Saltzman took a closer look at the realities of tax deductions for donors. Saltzman came to see that tax breaks would have very little incentive value for most potential donors, and establishing the cash value of donations would be difficult in any case. Moreover, if donors were getting little in return for their donations, they would be wary of signing a form indemnifying the conservancy against legal liability. On top of all this, Saltzman, like others, had misgiving about “the idea of the federal treasury contributing public money [in the form of tax expenditures].” In short, the conservancy approach seemed plagued with many complicated and perhaps insoluble problems. + +As if to keep the pot boiling, newcomers kept adding new thoughts. Two leading thinkers about the public domain in science, Paul Uhlir and Jerome H. Reichman, urged that the group expand its mission to include scientific research and take an international perspective.~{ E-mail from Paul Uhlir and Jerry Reichman, January 30, 2001. }~ (Uhlir directs the international scientific and technical information programs at the National Academy of Sciences/ National Research Council; Reichman is an intellectual property professor at Duke Law School.) Both were keenly aware of the dangers to scientific progress if copyright and patent protection continued to expand. +={Reichman, Jerome H.;Uhlir, Paul;copyright law:expansion of} + +In January 2001, the caucus reached one point of consensus— that the primary function of this commons should be “to facilitate free/low-cost public use of original works.” It also agreed upon a name. Asked to vote on a name from a list that included IP Commons, Dot-commons, Sui Generous, IP Conservancy, and Public Works, Saltzman piped up, “May I suggest another name? CREATIVE COMMONS.” When the final poll results were counted, Creative Commons was the clear winner with five votes, with one vote apiece for the remaining names. A later poll pitted “The Constitution’s Commons” against “Creative Commons” (CC) in a final runoff. The vote tally is lost to history, but we do know which name prevailed.~{ E-mails from ipcommons listserv to ipcommons group, January 11, 12, 13, 16, 2001. }~ +={Creative Commons (CC):development of+10|function of} + +Viewpoints quickly diverged on how a commons ought to be structured and what metrics of success should be used. Should it seek to maximize the number of donations or the number of downloads? Should it develop quality holdings in a given field or provide the widest possible breadth of content? Should it focus on social interaction and creative reuses of works? Should the focus be on producers or consumers of intellectual property? Should the organization focus on individuals or institutions? And how would it be different from other rights clearance organizations and content archives? The group seemed mired in a great cloud of uncertainty. + +For the next nine months, the group intensified its debate about how to build the envisioned conservancy. After law student Dotan Oliar sketched out possible “business models,” Saltzman persuaded a friend at McKinsey & Company, the consulting firm, to provide a pro bono assessment.~{ Dotan Oliar, “Memo on Creative Commons — Towards Formulating a Business Plan,” March 19, 2001. }~ “The McKinsey folks were very skeptical and, I think, had a hard time fitting this into their [business] framework,” recalled one student at the meeting, Chris Babbitt. After the meeting, he was convinced that Creative Commons could not possibly host a content commons: “It would just be huge amounts of material, huge costs, and we didn’t have the money for that.” ~{ Interview with Chris Babbitt, September 14, 2006. }~ +={Babbitt, Chris+1;McKinsey & Company;Oliar, Dotan} + +Feeling the need to force some concrete decisions, Saltzman and Lessig convened twenty-eight people for an all-day meeting in Hauser Hall at Harvard Law School, on May 11, 2001, to hash out plans. “What we’re trying to do here is /{brand the public domain}/,” Lessig said. A briefing book prepared by Chris Babbitt posed a pivotal question to the group: Should Creative Commons be structured as a centralized Web site or as an distributed, open-source licensing protocol that would allow content to be spread across cyberspace? The centralized model could be “an eBay for opensource IP” or a more niche-based commons for out-of-print books, film, or poetry. A mock Web site was actually prepared to illustrate the scenario. The home page read: “The member sites listed on the CommonExchange have been certified by Creative Commons to offer high-quality, non-infringing content on an unrestricted basis. Please feel free to use and pass these works along to others. We invite you to donate works of your own to help maintain the digital Commons.”~{ The mock-up can be found at http://cyber.law.harvard.edu/creativecommons/site.htm. }~ +={public domain:branding of} + +The distributed commons model would resemble the Chicago Mercantile Exchange or the New York Stock Exchange — “a trusted matchmaker to facilitate the transaction of securing rights,” according to the briefing book. “Just as corporations or commodities producers must meet certain criteria before they are listed on the Exchange, we could condition ‘listing’ in the Commons on similar criteria, albeit reflecting open source rather than financial values.”~{ “Briefing Book for Creative Commons Inaugural Meeting,” May 7,2001, p.10. }~ The virtue of the distributed model was that it would shift costs, quality control, and digitization to users. Creative Commons would serve mostly as a credentialing service and facilitator. On the other hand, giving up control would be fraught with peril — and what if Creative Commons’ intentions were ignored? + +Several participants remember Lessig, Nesson, and Zittrain pushing for the distributed model, which seemed a bolder and riskier option. “Larry was the lead advocate for a distributed commons, where it would be focused on a license mechanism that we then would release to the world, and we let the world do with it what it will,” one attendee recalled. “At the time, I think, XML-type capabilities were just coming around, and Larry was very confident that that was the direction to go.”~{ Interview with Chris Babbitt, September 14, 2006. }~ XML, or Extensible Markup Language, is a programming language that uses self-created “tags” that help Internet users aggregate and share digital content residing on different computer systems. Lessig envisioned XML tags embedded in any Creative Commons–licensed work, which could then be used to identify shareable content on the Internet. +={Nesson, Charles;Zittrain, Jonathan;XML (Extensible Markup Language);Creative Commons (CC) licenses+3} + +This perspective carried the day, and the “conservancy” model of the commons was formally abandoned. CC would serve as a licensing agent. The licenses would enable authors’ works to be made available online in an easy, low-cost way without the full restrictions of copyright law. A standardized set of licenses would overcome the ambiguities of the fair use doctrine without overriding it. Creators could voluntarily forfeit certain copyright rights in advance— and signal that choice — so that others could freely reuse, share, and distribute CC-licensed works. +={authorship:Creative Commons, and+2} + +Jonathan Zittrain remembers being skeptical at first: “So this whole thing is just about some tags? It’s about /{licensing}/? How boring.” Upon reflection, however, he saw the value of CC licensing as a way to create a new default. “As soon as you realize — ‘Well, wait a minute! It’s just about authors being able to express their desires!’”~{ Interview with Jonathan Zittrain, September 28, 2006. }~ + +More than a menu of individual choices, the licenses would constitute an embryonic cultural order — a “constitutional system” to direct how text, images, and music could circulate in the online world, based on authors’ individual choices. But the new focus on licenses raised its own set of novel quandaries. What options should an author be able to choose? What suite of licenses made sense? While licensing terms may be boring and legalistic, the architecture could have potentially profound implications for cultural freedom — which is why the legal minds involved in the licenses spent so much time arguing seemingly obscure points. +={Creative Commons (CC):function of} + +However these debates were resolved, everyone agreed that it was time to incorporate Creative Commons as a nonprofit group, assemble a board, recruit a chief executive officer, and of course raise more money. The stated goal: “to expand the shrinking public domain, to strengthen the social values of sharing, of openness and of advancing knowledge and individual creativity.”~{ Oren Bracha and Dotan Oliar, “Memo: May 7th Consensus Regarding the Creative Commons Project,” August 20, 2001, p. 1. }~ +={public domain:CC licenses, and+1;Creative Commons (CC) licenses:public domain, and+1} + +There was a certain audacity if not unreality to the whole venture. Law professors don’t go around inventing ambitious public projects to revamp the social applications of copyright law. They don’t generally muck around with software, contract law, and artists to build an imagined “sharing economy.” “There was always this lingering suspicion in the back of my mind,” recalled Babbitt in 2006, “that it [Creative Commons] would be kind of a rich man’s folly, and this would just be some little thing — a niche experiment — that really wouldn’t turn out to have merited the sort of sustained interest of this high-caliber group of people.”~{ Interview with Chris Babbitt, September 14, 2006. }~ +={Babbitt, Chris} + +2~ Crafting the Licenses +={Creative Commons (CC) licenses+14} + +If Creative Commons licenses were going to enable artists to determine future uses of their works — on less restrictive terms than copyright law — what did actual artists think of the whole idea? To get a crude baseline of opinion, Laura Bjorkland, a friend of Lessig’s and manager of a used-book store in Salem, Massachusetts, conducted an unscientific survey. She asked about a dozen writers, photographers, painters, filmmakers, and a sculptor if they would be interested in donating their works to a commons, or using material from one? Most of them replied, “I’ve never even /{thought}/ of this before. . . .”~{ Laura Bjorkland, “Regarding Creative Commons: Report from the Creative Community,” in “Briefing Book for Creative Commons Inaugural Meeting,” May 7, 2001, pp. 16–19. }~ +={Bjorkland, Laura;Creative Commons (CC):function of} + +A classical composer said he “loved the idea of a Nigerian high school chamber group playing one of my string quartets without paying royalties . . . but I would not want a film studio or pop song writer using one of my themes on a commercial project, even if my name’s attached, without royalties.” Some artists worried about others making money off derivatives of their work. Many complained that artists earn so little anyway, why should they start giving away their work? Others were reluctant to see their work altered or used for violence or pornography. Photographers and visual artists found it “a little scary” to let their signature style be used by anyone. + +In short, there was no stampede for starting a public-domain conservancy or a set of licenses. Some worried that the CC licenses would be a “case of innovation where’s there’s no current demand.” Another person pointed out, more hopefully, that it could be a case of “changing the market demand with a new model.”~{ Oren Bracha and Dotan Oliar, “Memo: May 7th Consensus Regarding the Creative Commons Project,” August 20, 2001, p. 3, note 9. }~ + +The Lessig caucus was clearly struggling with how best to engage with the networked environment. Napster had demonstrated that, in the dawning Internet age, creativity would increasingly be born, distributed, and viewed on the Web; print and mass media would be secondary venues. For a society still deeply rooted in print and mass media, this was a difficult concept to grasp. But Michael Carroll, the Washington lawyer who had earlier vetted the conservancy’s liability issues, shrewdly saw network dynamics as a potentially powerful tool for building new types of digital commons. In 2001, he had noticed how a bit of Internet folk art had become an overnight sensation. Mike Collins, an amateur cartoonist from Elmira, New York, had posted the cartoon below on Taterbrains, a Web site.~{ http://politicalhumor.about.com/od/funnypictures/ig/100-Funny-Pictures/Confusing-Florida-Ballot.htm. }~ The image suddenly rocketed throughout the cyberlandscape. Everyone was copying it and sharing it with friends. +={Carroll, Michael W.+4;Collins, Mike+4;Napster} + +{ vs_db_1.png }http://viralspiral.cc/ + +% group{ +% +% Official Florida Presidential Ballot +% Follow the arrow and Punch the appropriate dot. +% +% Bush Buchanan Gore Nadar +% (c) 2000 Mike Collins, Taterbrains.com +% +% }group + +Carroll observed: + +_1 [Collins] distributed his design initially without a motive to profit from it. But the scale of distribution surpassed what he imagined, and in a subsequent interview he expressed some resentment over those who had made money from T-shirts and other paraphernalia using his design. But he appears to have taken no actions to enforce his copyright, the notice notwithstanding. Copyright lawyers would consider the unlicensed distribution of this work “leakage” — that is, a violation of law but not worth pursuing. + +_1 But if we could take steps to make it cheap, easy and desirable for the Mike Collinses of the world to stick a CC tag on something like this before sending it out, “leakage” becomes legal, changing the terms of the debate.~{ E-mail from Michael Carroll to Molly Van Houweling and Larry Lessig, October 15, 2001. }~ + +CC tags could make nonproprietary culture the default, reversing the presumption of copyright law. Everyone agreed with this general approach, but implementing it was rife with difficult questions. As Saltzman recalled: “What kind of relationship did we want to encourage between the creator/licensor and the user? Should it be totally automated? Should it invite some back-and-forth? Should there be a requirement that licensors provide contact information?”~{ Interview with Eric Saltzman, April 11, 2006. }~ The General Public License for software had shown the feasibility of a license for safeguarding a commons of shared code. Could it work in other creative sectors? It would be critical to strike the right balance. As law student Chris Babbitt put it, “Too little protection for the donor’s interests and no one will donate; too little room for the users to use the work, and the service is useless.”~{ “Briefing Book,” p. 12. }~ +={Babbitt, Chris;Saltzman, Eric;General Public License (GPL):legal enforceability of} + +If there were going to be several licenses, the next question was how many, and of what sort? There are many different types of creativity, after all. Should each one have its own set of special licenses? The Berkman conclave agreed that there should be a publicdomain license enabling creators to grant a nonexclusive, royaltyfree license on their works, without the viral conditions of the GPL. As for other licenses, five ideas were put on the table for consideration: a license authorizing free reuses of a work so long as proper attribution is given to the author; a license authorizing noncommercial uses; and a license authorizing free reuses but prohibiting derivative uses. Other suggestions included a license authorizing academic uses only and a “timed donations” license, which would allow an artist to revoke a work from the commons after a stipulated number of years.~{ Ibid. }~ Neither of these two licenses gained support from the group. + +There were also lots of open questions about how to structure the specific terms of the licenses. Should they be perpetual? Will the licensor be liable for “downstream” uses of a work that are deemed an infringement? Will licensors be required to identify themselves? Should licensors be able to add their own separate warranties and representations? Crafting the licenses meant going beyond the abstract rhetoric of the commons. These licenses had to be serious, operational legal instruments that courts would recognize as valid. + +Another concern was making the new CC licenses compatible with existing licenses seeking similar goals. MIT had produced the first such license for its OpenCourseWare initiative, which allows Internet users to use the university’s curricula and syllabi (see chapter 12). To ensure that CC- and MIT-licensed content would be compatible, the CC lawyers deliberately wrote a license that would meet MIT’s needs. Another license, the GNU Free Documentation License (FDL), was being used on Wikipedia, among other online sites. But the FDL, originally intended for software documentation materials, was incompatible with the CC licenses. Stallman refused to alter the FDL, and Wikpedia was already under way and committed to the FDL. This quirk of history meant that Wikipedia content and CC-licensed content could not legally be combined. As we will see in chapter 9, this was the beginning of a rancorous schism in the free culture world, and the beginning of a heated philosophical/ political debate over which licenses truly promote “freedom.” +={ree Documentation License;GNU Project:GNU FDL;Stallman, Richard:GNU Project, and;Wikipedia:GNU FDL, and} + +As this overview suggests, licensing complexities can quickly soar out of control and become overwhelming. Yet the very point of the Creative Commons licenses was to simplify the sharing and reuse of digital material. CC planners wanted to help ordinary people bypass the layers of mind-numbing legalese that make copyright law so impenetrable and inaccessible. The Creative Commons was all about empowering individuals and avoiding lawyers. A proliferation of licensing choices would only lead to license incompatibilities, a Balkanization of content on the Internet, and more lawyers. Sharing and interoperability go together, as Stallman’s early experiences with his Emacs Commune showed. +={Emacs;Stallman, Richard:Emacs, and} + +Somehow, therefore, the licenses had to thread three needles at once. They needed to align (1) the technical dynamics of the Internet with (2) the legal realities of copyright law and (3) the everyday needs of people. The ingenious solution was to create licenses on three layers: a “lawyer-readable” license that could stand up in court, a “human-readable” license that could be understood by ordinary people, and a “machine-readable” license that could be recognized by search engines and other software on the Internet. Each “layer” expressed the same license terms in a different way — an unexpected twist on Lessig’s concern for “fidelity in translation.” The formal license was called the “Legal Code” (or “legal source code”); the machine-readable translation of the license was called “Digital Code”; and the plain-language summary of the license, with corresponding icons, was the “Commons Deed” (or the “happy deed”). + +2~ Branding the Public Domain in Code +={code:branding the public domain in+8;Creative Commons (CC):code, and+8;public domain:branding of+8} + +As the lawyers brooded and debated the licensing terms, another complicated debate was unfolding on the tech side of CC: how to brand the public domain in software code. If code is law, then it was imperative for Creative Commons to find some way to represent CC licenses in digital code. Abelson, Lessig, and others understood that the future of the Internet was likely to include all sorts of automated, computer-to-computer functions. One of the best ways to promote a new body of “free content” on the Web, therefore, would be to develop machine-readable code that could be inserted into any digital artifact using a Creative Commons license. That way, search engines could more easily identify CC-licensed works by their terms of use, and help assemble a functionally accessible oeuvre of digital content that was free to use. +={code:law, as;law:code as+1;Abelson, Hal:CC licensing, and;Internet:freedom of;Internet:future of;Lessig, LawrenceCC licenses, and;World Wide Web:free content on} + +At this time, in 2001, the founder of the World Wide Web, Tim Berners-Lee, and others at the World Wide Web Consortium, based at MIT, were trying to conceptualize the protocols for a new “logical layer” of code on top of the World Wide Web. They called it the Semantic Web. The idea is to enable people to identify and retrieve information that is strewn across the Internet but not readily located through conventional computer searches. Through a software format known as RDF/XML,~[* RDF, or Resource Description Framework, is a way to make a statement about content in a digital artifact. XML, or Extensible Markup Language, is a way to write a specialized document format to send across the Web, in which certain content can be marked up, or emphasized, so that other computers can “read” it.]~ digital content could be tagged with machine-readable statements that would in effect say, “This database contains information about x and y.” Through Semantic Web protocols and metatags on content, it would be possible to conduct searches across many types of digital content — Web pages, databases, software programs, even digital sensors — that could yield highly specific and useful results. +={Berners-Lee, Tim;Semantic Web+6;World Wide Web:Semantic Web+6|protocols for+6;RDF/XML} + +Unfortunately, progress in developing the Semantic Web has been bogged down in years of technical disagreement and indifference among the larger Web community. Some critics argue that the project has stalled because it was being driven by a small corps of elite software theorists focused on databases, and not by a wider pool of decentralized Web practitioners. In any case, the Creative Commons became one of the first test cases of trying to implement RDF/XML for the Semantic Web.~{ For background, see “The Semantic Web: An Introduction,” at http://infomesh.net/2001/swintro; Aaron Swartz and James Hendler, “The Semantic Web: A Network of Content for the Digital City,” at http://blogspace.com/rdf/SwartzHendler; and John Markoff, “Entrepreneurs See a Web Guided by Common Sense,” /{New York Times}/, November 12, 2006. }~ The project was led initially by Lisa Rein, a thirty-three-year-old data modeler who met Lessig at an O’Reilly open-source software conference. Lessig hired her as CC’s first technical director in late 2001 to embed the CC legal licenses in machine-readable formats. +={Rein, Lisa+2;Swartz, Aaron;Lessig, Lawrence:CC licenses, and} + +Writing the XML code was not so difficult, said Rein; the real challenge was “deciding what needed to be included and how you represent the licenses as simply as possible.”~{ Interview with Lisa Rein, December 20, 2006. }~ This required the lawyers and the techies to have intense dialogues about how the law should be faithfully translated into software code, and vice versa. Once again, there were complicated problems to sort through: Should there be a central database of CC-licensed content? How could machine-readable code be adapted if the legal licenses were later modified? + +Rein got an unexpected assist in the project from programming whiz Aaron Swartz, who had heard about Creative Commons and volunteered to help write the RDF/XML code. Swartz was an esteemed member of the RDF core working group at the World Wide Web Consortium (W3C), and so was intimately involved in Semantic Web deliberations. He was also a fifteen-year-old junior high school student living with his parents in Chicago. “I remember these moments when I was sitting in the locker room, typing on my laptop, in these [W3C] debates, and having to close it because the bell rang and I had to get back to class,” Swartz recalled. At CC, he was given the title of “Volunteer Metadata Coordinator.” His job was “to design the RDF schema and what the XML documents would look like, and work that out with my friends at the W3C and get their approval on things.”~{ Interview with Aaron Swartz, October 10, 2006. }~ For his troubles, Swartz received an in-kind donation of a laptop computer and travel expenses, rather than a salary. “At the time, I felt bad,” said Swartz. “They were a nonprofit doing work I believe in. I didn’t feel I should be taking their money when I didn’t need it.” With later help from Ben Adida, the CC team managed to develop an RDF that could attach CC licenses to Web pages. But since the Semantic Web protocols were still in flux, and not widely used, the effort amounted to a speculative gamble on future and widespread adoption of those protocols. +={RDF/XML+3;Adida, Ben;Swartz, Aaron;World Wide Web Consortium (W3C);Internet:future of|protocols of+3} + +Although inspired by the Semantic Web and by Lessig’s analysis in /{Code}/, the RDF/XML coding was also provoked by the growing specter of digital rights management (DRM), the reviled systems used by film and music companies to lock up their content. The Creative Commons dreamed of developing an “anti-DRM” code to express the idea, “This content is and shall remain free.” Professor Hal Abelson remembered that “we even used the phrase, ‘DRM of the public domain.’”~{ Interview with Hal Abelson, April 14, 2007. }~ The coinage that Lessig later popularized is “digital rights expression” — metadata that indicate that a digital object can be shared and reused. There was a passing fear that CC’s digital rights expression code might infringe on DRM patents; one company known for its aggressive patent defense raised concerns. But once it was made clear that the CC’s RDF code amounted to a label, and did not execute online rights on a person’s computer, the problem disappeared. +={Abelson, Hal:digital rights management, and;digital rights management (DRM);copyright law:digital age, in;Lessig, Lawrence:Code and Other Laws of Cyberspace} + +The machine-readable CC licenses were one of the first major buildouts of RDF protocols. Swartz ruefully recalled the reaction of his friends at W3C: “I got the sense that they thought it was sort of a silly project, that they were thinking about bigger and longer-term things.” Adida, who later replaced Swartz as the CC representative at the W3C, played a major role in helping develop the metatags and protocols. +={Adida, Ben;Swartz, Aaron+1} + +The RDF/XML coding was part of a larger CC strategy to brand the public domain via software code. Since RDF code alone is like a nail without a hammer, Creative Commons decided to develop a specialized search engine so that Internet users could locate CC-licensed content. Without such a search engine, Lessig said in April 2002, “there will be no way to demonstrate that we’ve produced anything useful.”~{ E-mail from Lawrence Lessig to Hal Abelson, April 22, 2002. }~ Swartz, who was not involved in the project, said, “I was impressed that they did it, because it was probably the biggest programming job I’d seen them do at the time.” In the meantime, the CC began a series of overtures to Google and Yahoo in an attempt to get their search engines to search for CC-licensed content. After years of lukewarm interest, both Google and Yahoo added CC-search capabilities in 2005. Creative Commons also nurtured the hope that once enough content contained CC metadata, software developers would develop new applications to let people browse, use, and distribute CC-tagged content. +={Google;Yahoo;Lessig, Lawrence:CC licenses, and} + +2~ The Action Shifts to Palo Alto +={Creative Commons (CC) licenses:evolution of+31} + +By the fall of 2001, Creative Commons was still an idea without definition. The project gained new momentum in September 2001 when Lessig hired a former student, Molly Shaffer Van Houweling, to be the first director of the organization. Van Houweling, a sophisticated yet plainspoken law scholar with strong executive skills, had just finished clerking for Supreme Court justice David Souter. She set about incorporating the Creative Commons, organizing the board, building a Web site, and hammering out final versions of the licenses. +={Souter, David;Van Houweling, Molly Shaffer+5} + +Once a key foundation grant was secured — $1 million from the Center for the Public Domain — the Creative Commons was incorporated in Massachusetts (home to many key backers of the project) on December 21, 2001. The first board members included several legal scholars (Boyle, Carroll, Lessig), a computer scientist (Abelson), two filmmakers (Saltzman and Davis Guggenheim, a friend of Lessig’s), and a Web publisher (Eldred). Charged with breathing life into a fragile idea, Van Houweling settled into a small office on the third floor of Stanford Law School (before the project was reassigned to basement offices). +={Abelson, Hal;Boyle, James:CC board, on|CC formation, and;Carroll, Michael W.;Center for Public Domain;public domain:Center for Public Domain;Saltzman, Eric;Eldred, Eric:Creative Commons, and;Guggenheim, Davis} + +In January 2002, Glenn Otis Brown, a lawyer and former student of Lessig’s, was hired as assistant director. Brown had been a law student at Harvard Law School, where he had known Van Houweling and taken a constitutional law course from Lessig. An affable Texan who had flirted with a journalism career, Brown had just finished a year of clerking for a circuit court judge. He was due to start a job in New York City the following week when he got a call from Van Houweling. “She and Larry were starting something to do with copyright at Stanford,” recalled Brown. “I knew pretty much nothing else about it except it was a nonprofit and it was going to be a fulltime job. . . . The next thing I knew, I was moving to California.”~{ Interview with Glenn Otis Brown, June 9, 2006. }~ +={Brown, Glenn Otis:CC formation, and+1} + +Lessig, Van Houweling, and Brown took the menu of licenses proposed by two graduate students, Dotan Oliar and Oren Bracha, and sought to refine them and make them as legally bulletproof as possible.~{ Oren Bracha and Dotan Oliar, “Memo: Presentation of Two Possible Creative Commons Layer 1 Architectures,” October 1, 2001. }~ They were torn about the process to adopt. “We didn’t want to do a collective drafting process with the entire Internet community,” said Van Houweling. “That didn’t seem practical. And yet we were a little nervous, I think, about not knowing what our potential user base would want to use.” Lessig was unfazed. Release of the licenses “isn’t going to be like a movie premiere,” he told Van Houweling, but more of an evolutionary process. The idea was to get the licenses in circulation, monitor their progress, and make changes as necessary.~{ Interview with Molly Van Houweling, March 21, 2006. }~ +={Lessig, Lawrence:CC licenses, and+1;Bracha, Oren;Oliar, Dotan;Brown, Glenn Otis:CC licensing, and} + +Two of the most prestigious law firms in Silicon Valley, Cooley Godward Kronish and Wilson, Sonsini, offered pro bono legal assistance to the effort. Attorney John Brockland, an expert in opensource software licenses at Cooley Godward and a former student of Lessig’s, was the architect of the final licenses, assisted by Catherine Kirkman, a licensing attorney at Wilson, Sonsini. Brockland recalled, “One of the drafting challenges was to write something that could be broadly useful across a wide range of copyrighted works and would not be tied to particular nuances of the way the copyright statute works.”~{ Interview with John Brockland, January 5, 2007. }~ Most copyright licenses are drafted for specific clients and particular circumstances, not for the general public and all types of copyrighted works. +={Brockland, John;Cooley Godward Kronish;Kirkman, Catherine;Wilson, Sonsini, Goodrich & Rosati;copyright law:licenses for;open source software:legal implications of} + +Much of the discussion, said Van Houweling, “revolved around the values that we wanted to embed in the licenses, and what were the outer limits of those values?” Ultimately, she said, “we opted for a menu of licenses that was weighted toward the nonproprietary [content]. . . . We wanted to subsidize a certain set of choices that are otherwise underserved.”~{ Interview with Molly Van Houweling, March 21, 2006.}~ The point was to facilitate the rise of a sharing culture, after all, not to replicate the baroque dysfunctions of copyright law. +={copyright law:purpose of} + +Since the CC licenses were trying to articulate a new “middle ground” of voluntary choices for sharing, it had to grapple with all sorts of fine legal complexities. How exactly should they define a derivative work? What should be considered a noncommercial reuse of a work? Can you dedicate a work to the public domain? + +Some artists felt that they ought to be able to prohibit derivative uses of their works in pornography or hate speech. Hal Abelson adamantly disagreed. If the licenses had an “offensive uses” clause, as either a standard or optional term, it would open up a can of worms and put Creative Commons on the side of censors. That view readily prevailed. +={Abelson, Hal} + +A primary concern was anticipating how the licenses might be interpreted by the courts. Wendy Seltzer was worried that the CC licenses might become entangled with court cases involving the fair use doctrine. She wanted to make sure that the CC licenses were not seen as limiting or waiving a person’s fair use rights in any way. Her concern, shared by many others, resulted in an explicit disclaimer stating that intention. “I’m really glad that we did that,” recalled Glenn Brown, then the assistant director of CC, “because we ended up pointing to that over and over and over again — to make clear that this was something that went above and beyond fair use.”~{ Interview with Glenn Otis Brown, June 9, 2007. }~ +={Brown, Glenn Otis:fair use, and;Seltzer, Wendy;fair use doctrine:CC licenses, and;Creative Commons (CC) licenses:fair use, and} + +To ensure that the licenses would be enforceable, the CC lawyers built on the same legal base as the GPL; the licenses were crafted not as contracts, but as conditional permissions based on copyright law. A contract requires that the licensee have the opportunity to accept or reject the terms of an agreement, which would not be the case here. A conditional permission, by contrast, is the legal prerogative of a copyright holder. She is simply offering advance permission to use a CC-licensed work (to share, modify, distribute, etc.) so long as the specified terms are respected. +={General Public License (GPL):legal enforceability of;copyright law:conditional permission license|enforceability of|CC licenses, and+21;Creative Commons (CC) licenses:copyright law, and+21|version 1.0 of+21|enforceability of} + +Countless lawyerly refinements of a very technical nature were made to the licenses to ensure that they would be specific as needed, vague enough to be versatile, and rigorous enough to survive a court’s scrutiny.~{ The lawyers also wrestled with a host of imponderables that had no obvious answers, such as: What if people started spoofing the licenses by using them in inappropriate ways? Should the Creative Commons establish a central registry for CC-licensed works as a way to ensure the credibility of the project? (After long debate, the idea was ultimately rejected.) Would the Creative Commons be held liable for contributory negligence if someone used a CC license on a copyrighted song? (The CC took its chances.) Would the Creative Commons lose its trademark if it allowed anyone to use its trademarked logo? (Several lawyers warned that CC licensing of its trademark could not be properly policed.) Glenn Otis Brown worried that the board might be sued for facilitating the unauthorized practice of law. “I don’t know how long I spent calling up different insurance brokers trying to get a quote,” he recalled. “People had no idea what I was talking about. We ended up going all the way to Lloyd’s of London to ask them,” said Brown, laughing. “They wrote back and said, ‘You can’t insure that.’ ” }~ + +The first set of licenses, version 1.0, was completed in the spring of 2002 and included eleven choices. The six basic licenses, listed here in order of least restrictive to most restrictive, included: +={Creative Commons (CC) licenses:types of+12} + +!_ Attribution (BY). +Authorizes free reuses (download, distribution, modifications, commercial uses, etc.) so long as the author is credited for the original creation. + +!_ ShareAlike (SA). +Authorizes free reuses so long as credit is given and the new work is licensed under the same terms. + +!_ No Derivatives (ND). +Authorizes free reuses so long as the new work is unchanged and in whole. + +!_ NonCommercial (NC). +Authorizes free reuses so long as they are not commercial in nature. + +!_ NonCommercial ShareAlike (NC-SA). +Requires free reuses so long as the new work is passed along on the identical terms as the original work (so, for example, works that use a NonCommercial ShareAlike work will also have to be distributed as NonCommercial ShareAlike works). + +!_ NonCommercial No Derivatives (NC-ND). +Authorizes free reuses so long as credit is given, no changes are made, the work is kept intact, and it is not used commercially. This is the most restrictive CC license. + +Because each of these six basic choices can be combined with other CC licenses, copyright holders had five additional choices: + +!_ Attribution-ShareAlike (BY-SA). +Authorizes free reuses so long as the author is credited and the new work is licensed under the same terms. + +!_ Attribution-NonCommercial (BY-NC). +Authorizes free reuses so long as the author is credited and the new work is used for noncommercial purposes. + +!_ Attribution NonCommercial-ShareAlike (BY-NCSA). +Authorizes free reuses so long as the author is credited, the new work is used for noncommercial purposes, and the new work is passed along using this same license. + +!_ Attribution-No Derivatives (BY-ND). +Authorizes free reuses so long as the author is credited and the new work is unchanged and in whole. + +!_ Attribution No Derivatives-ShareAlike (BY-ND-SA). +Authorizes free reuses so long as the author is credited, the new work is unchanged and in whole, and the new work is passed along using this same license. + +It soon became clear that very few people were choosing any of the five licenses that did not require attribution of the author (the SA, ND, NC, NC-SA, and NC-ND licenses). So in May 2004 Creative Commons decided to “retire” those licenses, leaving the six most commonly used ones today (BY, BY-SA, BY-NC, BY-NC-SA, BY-ND, and BY-ND-SA). + +Still another choice was offered to copyright holders, a “public domain dedication,” which is not a license so much as “an overt act of relinquishment in perpetuity” of any rights in the work. The public domain dedication places no restrictions whatsoever on subsequent reuses of the work. +={public domain dedication} + +To the first-time user, the licenses may seem a little daunting.~{ A FAQ at the Creative Commons Web site answers the most frequent user questions about the licenses. It is available at http://wiki.creativecommons.org/. }~ The full implications of using one or another license are not immediately obvious. The tagline for the licenses, “Some Rights Reserved,” while catchy, was not really self-explanatory. This became the next big challenge to Creative Commons, as we see in chapter 6: how to educate creators about a solution when they may not have realized they even had a problem. + +By December 2002, the three levels of code — legal, digital, and human — had been coordinated and finalized as version 1.0. The organization was set to go public, which it did at a splashy coming-out party in San Francisco. The gala featured appearances by the likes of rapper DJ Spooky (an ardent advocate for remix culture) and a London multimedia jam group, People Like Us. Lessig proudly introduced the licenses as “delivering on our vision of promoting the innovative reuse of all types of intellectual works, unlocking the potential of sharing and transforming others’ work.”~{ http://creativecommons.org/press-releases/entry/3476. }~ +={DJ Spooky;People Like Us;code:levels of;Lessig, Lawrence:CC licenses, and+2} + +Perhaps the biggest surprise was a set of video testimonials from both ends of the copyright spectrum — John Perry Barlow of Electronic Frontier Foundation and Jack Valenti of the Motion Picture Association of America. With uncharacteristic solemnity, Barlow said: “I personally think there is something deeply oxymoronic about the term ‘intellectual property.’ But as long as we have set up a huge matrix of laws and social understandings that traffic in that assumption, we have to meet the conditions as we have found them and use what exists to preserve the human patrimony.” The silvermaned Valenti saluted the “Lessig compact” that is both “respectful of, and supports, copyright” while allowing people “to give up some of their copyrighted material, or all of it, and put it on the creative commons for others to view it or hear it.” “Larry, I hope that my supporting you in this doesn’t ruin your reputation,” Valenti joked.~{ See http://mirrors.creativecommons.org/cc-barlow-valenti.mov. }~ +={Barlow, John Perry;Electronic Frontier Foundation (EFF);Valenti, Jack+1} + +Many copyfighters were not thrilled to have an arch-adversary like Valenti praise their efforts at their moment of triumph. Yet that was a deliberate part of Lessig’s strategy: to assert a politically neutral middle ground from which to remake the social landscape of creativity. The question raised in some people’s mind was whether something so politically unassailable could have significant impact. Still others saw it as a welcome base upon which to build a new sharing economy. + +The CC launch party can be seen as a watershed moment in the struggle to protect the public domain. It announced a novel gambit to transcend the political impasse over copyright reform, a way to address copyright abuses without getting embroiled in a pitched and unwinnable confrontation. It legitimized all sorts of activities that had historically been seen as morally problematic, if not illegal. While building on the idea of the public domain developed over the preceding twenty years, Creative Commons inaugurated a new story about the commons, creativity, and the value of sharing. Watching the rocking party and savoring the hard work completed, Glenn Brown remembers a friend musing to him, “I wonder if we’ll see another legal hack like this in our careers.” +={Creative Commons (CC) licenses:launch of|public domain, and;public domain:CC licenses, and} + +1~ 5 NAVIGATING THE GREAT VALUE SHIFT + +/{Amateurs discover new tools for creating value: open networks and self-organized commons.}/ + +“It was never really clear to me what was going to happen after we launched the licenses,” recalled Glenn Otis Brown. “Would our work be done?” The intense push to craft the licenses and release them now over, Brown and his colleagues were only too happy to ease up in their work. (Van Houweling had left in 2002 to teach law; she is now at the University of California at Berkeley.) Despite his enthusiasm for the licenses, Brown had his private doubts about their future success. “To be honest, I was pretty scared,” he said. “I was worried they were going to go nowhere, and that I was going to be blamed for that.”~{ Interview with Glenn Otis Brown, August 10, 2006. }~ +={Brown, Glenn Otis:CC licensing, and+1;Van Houweling, Molly Shaffer;Creative Commons (CC) licenses:evolution of+10} + +In January 2003, a month after the CC licenses were announced, however, the project took on a new urgency. The Supreme Court handed down its /{Eldred}/ ruling, sending a clear signal that the courts were not much interested in reforming copyright law. Soon after this crushing disappointment, Lessig began to intensify his focus on the Creative Commons. “The pressure really increased,” said Brown, “but that’s also when things started to get a lot more fun. That’s when the staff started working on things /{all the time}/ and we got a stable, permanent staff, instead of contractors.” +={Eldred v. Reno/Eldred v. Ashcroft:Copyright’s Commons, and|Supreme Court, and;Lessig, Lawrence:CC licenses, and+9} + +What began as a modest licensing experiment began to take on the character of a permanent campaign. Working from the themes in /{The Future of Ideas}/, Lessig came to see the Creative Commons as more than a nonprofit custodian of some free public licenses; it was a champion for a bracing new vision of culture. This broader orientation meant reaching out to various creative sectors and the general public with messages that were both practical (“here’s how to use the licenses”) and idealistic (“you, too, can build a better world”). +={Lessig, Lawrence:The Future of Ideas;Creative Commons (CC):function of+5|social movement, as+5} + +The band of enterprising law scholars and techies who once saw their challenge as one of bolstering the public domain began to widen their gaze to the vast world of creativity and democratic culture. Social practice, not theory, became the animating force in their work. + +This meant reaching out to writers, musicians, filmmakers, photographers, librarians, academics, and other creators. All faced worrisome threats to their freedoms in the digital environment, as we saw in chapter 2. Lessig and the small Creative Commons staff made it their job to speak to these threats, promote the licenses, and set forth an alternative to the corporate media’s vision of culture. + +“Our single, overarching aim,” said Lessig in December 2002, “is to build the public domain, by building projects that expand the range of creative work available for others to build upon.”~{ Lawrence Lessig, Creative Commons press release, December 19, 2002; “CC in Review: Lawrence Lessig on How It All Began” [weekly e-mail series], October 12, 2005. }~ In an attempt to credential the licenses, the Creative Commons touted endorsements by a number of educational institutions (MIT, Rice University, Stanford Law School), public-spirited tech enterprises (iBiblio, the Internet Archive, O’Reilly & Associates), and venturesome musicians (DJ Spooky, Roger McGuinn of the Byrds). +={DJ Spooky;McGuinn, Roger;Lessig, Lawrence:public domain, and;public domain:CC licenses, and;Creative Commons (CC) licenses:public domain, and} + +As if by spontaneous replication, people from far-flung corners of the Internet began to use the licenses on their blogs, their MP3 music files, their photographs, their books. Week after week, the Creative Commons’s blog trumpeted the new recruits — the blog for book designers (Foreword), the database of metadata about music (MusicBrainz), the online storytelling Web site (Fray), the 2004 presidential campaign of Dennis Kucinich. +={Kucinich, Dennis} + +But the larger challenge for Creative Commons was finding ways to reach new constituencies who knew little about technology or copyright law. Why should they bother to use a CC license? This was a major public education challenge. Besides appearing at many conferences and cultivating press coverage, Glenn Brown spent a lot of time developing a Web site that could explain the licenses clearly. Great pains were taken to develop a precise, intuitive user interface to help people learn about the licenses and choose the right one for them. Copyright law was complicated enough; the CC licenses had to be seen as a simple alternative. +={Brown, Glenn Otis:CC licensing, and+1;copyright law:licenses, and+3} + +Advertisers have plenty of trouble communicating the virtues of mouthwash in a crowded public sphere. Could something as dry and forbidding as copyright law ever be made lucid and even hip? Although not a trained marketer, Glenn Brown had a knack for communicating things simply.Working with graphic designer Ryan Junell and Web designer Matt Haughey, Brown developed a site that combined a certain institutional authority with contemporary pizzazz. This style was on abundant display in a series of jaunty and entertaining Flash animations that explained the rationale for Creative Commons. +={Haughey, Matt;Junell, Ryan+1} + +Junell designed the now-familiar CC logo as a deliberate counterpoint to the copyright logo, ©. “I thought that Creative Commons should have something like the copyright logo since it deals with the same stuff,” said Junell. “It should be something really simple and pure.”~{ Interview with Ryan Junell, September 23, 2006. }~ Junell set his sights on making the CC logo a standard, ubiquitous symbol. He hoped that it would eventually be incorporated into the Unicode, an international registry for every character in any language used in software, from % to ∆ to ≠. +={Creative Commons (CC):logo of;Unicode} + +In promoting its licenses, Creative Commons fashioned itself as a neutral, respectable defender of individual choice. “Our tools are just that — tools,” said Haughey, who was then developing the CC Web site. “Our model intentionally depends on copyright holders to take responsibility for how they use those tools. Or how they don’t use them: If you’re unsure and want to keep your full copyright, fine. If you choose to allow others to re-use your work, great.”~{ Matthew Haughey, “Blogging in the Public Domain,” Creative Commons blog post, February 5, 2003, at http://creativecommons.org/weblog/entry/3601. }~ While many CC users were enthusiastically bashing copyright law, Lessig and the CC staff made it a point to defend the basic principles of copyright law — while extolling the value of collaborative creativity and sharing under CC licenses. +={Haughey, Matt} + +Despite praise by the heads of the Motion Picture Association of America and the Recording Industry Association of America, the licenses nonetheless did attract critics. Some in the music industry regarded the licenses as a Trojan horse that would dupe unsuspecting artists. David Israelite, president and CEO of the National Music Publishers’ Association, told /{Billboard}/, “My concern is that many who support Creative Commons also support a point of view that would take away people’s choices about what to do with their own property.”~{ Susan Butler, “Movement to Share Creative Works Raises Concerns in Music Circles,” /{Billboard}/, May 28, 2005.}~ /{Billboard}/ went on to cite the cautionary tale of a songwriter who was being kept alive by his AIDS medications, thanks to the royalties from a highly successful song. “No one should let artists give up their rights,” said Andy Fraser of the rock group Free. Other critics, such as John Dvorak of /{PC Magazine}/, called the CC licenses “humbug” and accused them of adding “some artificial paperwork and complexity to the mechanism [of copyright],” while weakening the rights that an author would otherwise enjoy.~{ John C. Dvorak, “Creative Commons Humbug: This Scheme Doesn’t Seem to Benefit the Public,” PC Magazine, July 28, 2005. }~ Still others had cultural scores to settle and criticized “anything advocated by clever, sleek young lawyers.”~{ Researchers at the Economic Observatory of the University of Openness, “Commercial Commons,” on the online journal /{Metamute}/, at http://www.metamute.org/?q=en/Commercial-Commons. }~ +={Creative Commons (CC) licenses:critics of;sraelite, David;Recording Industry Association of America (RIAA);Dvorak, John;Fraser, Andy} + +Putting aside such quibbles and prejudices, the CC licenses seemed a benign enough idea. Given its reliance on copyright law, how could any entertainment lawyer object? Yet the real significance of the licenses was only appreciated by those who realized that a Great Value Shift was kicking in. For them, the licenses were a useful legal tool and cultural flag for building a new sharing economy. +={Great Value Shift} + +2~ The Great Value Shift +={Great Value Shift+9;Inernet:Great Value Shift, and+9} + +In retrospect, the CC licenses could not have been launched at a more propitious moment. Networked culture was exploding in 2003. Broadband was rapidly supplanting dial-up Internet access, enabling users to navigate the Web and share information at much faster speeds. Prices for personal computers were dropping even as computing speeds and memory capacity were soaring. Sophisticated new software applications were enabling users to collaborate in more powerful, user-friendly ways. The infrastructure for sharing was reaching a flashpoint. + +Put another way, the original promise of the Internet as a gift economy was coming into its own. Originally built as a platform for efficient sharing among academic researchers, the Internet by 2003 was being used by some 600 million people worldwide.~{ Nielsen/Net Ratings estimated 585 million Internet users in 2002; the International Telecommunications Union estimated 665 million. See http://www2.sims.berkeley.edu/research/proiects/how-much-info-2003/internet.htm. }~ The open framework for sharing was no longer just a plaything of technophiles and academics; it was now insinuated into most significant corners of the economy and social life. As it scaled and grew new muscles and limbs, the Internet began to radically change the ways in which wealth is generated and allocated. +={Internet:gift economy of+1} + +I call this the Great Value Shift — a deep structural change in how valuable things are created for commerce and culture. The shift is not only a fundamental shift in business strategy and organizational behavior, but in the very definition of wealth. On the Internet, wealth is not just financial wealth, nor is it necessarily privately held. Wealth generated through open platforms is often /{socially created value}/ that is shared, evolving, and nonmonetized. It hovers in the air, so to speak, accessible to everyone. +={Internet:socially created value of+1;value:creation of} + +Creative Commons had the good fortune to introduce its licenses just as the Great Value Shift was picking up momentum. The types of distributed innovation first seen in free software were now popping up in every imaginable corner of cyberspace. The social content was not just about listservs and newsgroups, but instant messaging networks, Web logs, podcasts, wikis, social networking sites, collaborative archives, online gaming communities, and much else. +={free software:Great Value Shift, and} + +“What we are seeing now,” wrote Yochai Benkler in his book, /{The Wealth of Networks}/, “is the emergence of more effective collective action practices that are decentralized but do not rely on either the price system or a managerial structure for coordination.” Benkler’s preferred term is “commons-based peer production.” By that, he means systems that are collaborative and non-proprietary, and based on “sharing resources and outputs among widely distributed, loosely connected individuals who cooperate with each other.”~{ Yochai Benkler, /{The Wealth of Networks: How Social Production Transforms Markets and Freedom}/ (New Haven, CT: Yale University Press, 2006), p. 60. }~ +={Benkler, Yochai:The Wealth of Networks+1;commoners:sharing by;commons-based peer production} + +Informal social relationships, working in the unregimented, free space of open platforms, were beginning to change economic production and culture. “Behaviors that were once on the periphery— social motivations, cooperation, friendship, decency — move to the very core of economic life,” Benkler argued.~{ Benkler at the iCommons Summit, Dubrovnik, Croatia, June 15, 2007. }~ Money and markets do not necessarily control the circulation of creativity; increasingly, online communities — large numbers of people interacting with one another on open platforms — are the engines that create value. + +The CC licenses were launched at a moment when the new modes of value creation were just gaining a foothold. + +We do not yet have well-accepted theoretical models for understanding this new “socioeconomic space”; the online environments are still so new, and much is still in flux.~{ An excellent overview of these new spaces is Don Tapscott and Anthony D. Williams, /{Wikinomics: How Mass Collaboration Changes Everything}/ (New York: Portfolio, 2006). }~ But it has not escaped the notice of major corporations that online social dynamics can result in some radically more effective models for organizing employees and engaging with customers. A /{BusinessWeek}/ cover story touted “The Power of Us” in June 2005, profiling the ways in which companies like Procter & Gamble use mass collaboration for R&D; Hewlett-Packard had created a virtual stock market among its staff to gather collective estimates that have improved sales forecasts.~{ Robert D. Hof, “The Power of Us: Mass Collaboration on the Internet Is Shaking Up Business,” /{BusinessWeek}/, June 20, 2005, pp. 73–82. }~ The /{Economist}/ has written about the “fortune of the commons” that can result when there are open technical standards, and business professors such as Henry Chesbrough have examined new “open business models.”~{ “The Fortune of the Commons,” Economist, May 8, 2003; Henry Chesbrough, /{Open Business Models: How to Thrive in the New Innovation Landscape}/ (Cambridge, MA: Harvard Business School Press, 2006). }~ +={Chesbrough, Henry;Hewlett-Packard;Procter & Gamble} + +Before looking at the many creative sectors that have adopted the CC licenses — the focus of chapter 6 — it helps to understand the Great Value Shift that open networks have catalyzed. In one market after another, open networks have helped new competitors slash all sorts of business costs while enhancing their capacity to innovate and respond to changing consumer demand. Open networks have also given rise to new types of social platforms on the Web, often known as Web 2.0, which are making it economically attractive to serve niche markets. This is the so-called Long Tail. Yet even these sweeping changes in market structure are facing a qualitatively different kind of competition — from the commons sector. It turns out that informal online communities based on trust, reciprocity, and shared social norms can perform a great many tasks more efficiently than markets, and with some measure of social pleasure and fun. +={Long Tail;Web 2.0:Great Value Shift, and} + +2~ The Endangered Economics of Centralized Media +={Centralized Media+7;media:See also Centralized Media} + +The dominant systems of communications in the twentieth century — radio, broadcast and cable television, recorded music, theatrical film — required large amounts of centralized capital, corporate management, and professional control. These media have very different business models and practices, but they all rely upon centralized control of capital and distribution to large, fairly undifferentiated audiences. Each depends upon efficiencies derived from high-volume sales and a limited spectrum of commercial choices. + +Centralized Media also dictate certain economic and social identities for people. There are “sellers,” who are the prime source of expertise, innovation, and production, and there are “consumers,” who passively buy, or don’t buy, what is offered. Sellers mostly determine what choices are offered to buyers, and they tend to have greater market power and information than consumers. Interactions between sellers and consumers are mostly brief and transactional; there is little ongoing conversation or relationship between seller and buyer. + +Much of the strength of the Centralized Media derives from its control of critical “choke points” of product development and distribution. By controlling the technical standards for a product, its retail distribution or its brand identity, a company can maximize its competitive advantages and limit competition. The high concentration of capital needed to communicate through a Centralized Media outlet is itself a useful way to limit competition. No surprise that only large, publicly traded corporations and rich individuals own and control Centralized Media — and that their messages tend to be overtly commercial or commercial-friendly. +={Centralized Media:choke points of|competition, and+4} + +While this paradigm is obviously quite attractive for those investors with a piece of the action, it also entails some very large costs that are not readily evident. Companies have to spend a lot on advertising to build a brand identity that can enhance sales. Their “blockbuster” business model entails large upfront costs in order to reap large financial returns. Centralized Media require expensive systems for finding, recruiting, and developing stars; an elaborate marketing apparatus to find and retain customers; and legal and technological means to identify and prosecute “piracy” of creative works. +={Centralized Media:piracy, and;piracy} + +In a more static environment, this model worked fairly well. But as the Internet revolution proceeded in the 2000s, distributed media started to undercut the economic logic of Centralized Media. Your personal computer, connected to other computers via inexpensive telecommunications and software, can do things more cheaply. Distributed online media not only avoid the costly overhead needed by Centralized Media, they can generate dynamic, interactive, and sociable types of communication: /{user-generated content!}/ While this amateur content is wildly variable in quality, it does have this virtue: it is more culturally diverse and authentic than the homogenous, overproduced programming of Centralized Media. And because distributed media are not economically driven to amass large, undifferentiated audiences, the content can be more idiosyncratic, passionate, and, in its own ways, creative. There is no “fifty-seven channels and nothing on” problem. The problem is how to locate what you want from among millions of choices. +={Centralized Media:Internet vs.;Internet:Centralized Media vs.} + +For all these reasons — but mostly because of the economics— conventional media are becoming more vulnerable to the most advanced Internet-based competitors (Amazon, eBay, Google, Yahoo) as well as to new types of nonmarket social production (e.g., Craigslist, Wikipedia, special-interest affinity groups). We may even be approaching a point at which the historic cost structures and risk management strategies of major media companies are no longer sustainable. Some analysts fret about the long-term viability of American newspapers, whose stock value fell by 42 percent, or $23 billion, between 2005 and 2008. Broadcast and cable television have similar fears. They worry, correctly, that Internet venues are siphoning away “eyeballs” by providing more timely and convenient alternatives. While the amateur videos of YouTube may not have the production quality of NBC, broadcast and cable television cannot ignore an upstart platform that in 2006 was attracting more than 100 million video downloads /{per day}/ and had a market valuation of $1.65 billion when bought by Google that year. No wonder Cable News Network co-hosted a presidential debate with YouTube in 2007; it needed to reassert its cultural relevance. +={Amazon;eBay;Google;Yahoo;Craigslist;Wikipedia;YouTube} + +Large media companies are struggling to support some huge financial, administrative, and marketing burdens simply to “tread water” and retain some measure of their customary market dominance. This helps explain why Centralized Media are so keenly focused on influencing Congress and the Federal Communications Commission. They want to lock in competitive advantages through regulation. (Consider the fierce battles over media ownership rules, spectrum allocation policies, anticopying technology mandates such as the “broadcast flag,” new copyright and trademark protections, must-carry rules for cable operators, and on and on.) Centralized Media’s great interest in securing legal and regulatory privileges for themselves suggests their relative weakness and decline. For them, it is easier to chase market advantages through political interventions than through innovation, superior performance, and price. +={Centralized Media:ownership rules for;media:ownership of+3} + +2~ The Economic Advantages of Open Media +={Centralized Media:Internet vs.+7;Internet:Centralized Media vs.+7;media:open+7} + +By contrast, a profusion of new ventures are finding that a company can thrive on the open networks of the Internet. Even a startup without brand recognition or regulatory preferences can compete on the merits — price, quality, responsiveness — against entrenched giants. They can leverage user-generated content and the vast reservoir of value previously known as the public domain. The success of thousands of new Internet businesses reflects an epochal shift in the terms of competition — a Great Shift in how value is created. +={Great Value Shift} + +The most significant shifts in the history of capitalism have come when new mechanisms lower the costs of managing risk and serving latent market demand. We are apparently in such a stage of economic transformation today. The genius of the Renaissance banks and the Dutch insurance and shipping companies, for example, was to reinvent the structure of markets through new financial and legal instruments that enabled commercial trust and transparency to work on a larger scale. The limited liability corporation was also a powerful innovation for diversifying risk, coordinating people, and deploying capital on a scale that was previously impossible.~{ I am indebted to my friend John Clippinger for this insight, as explained in his book /{A Crowd of One: The Future of Individual Identity}/ (New York: Public Affairs, 2007), chapter 7, “Transforming Trust: Social Commerce in Renaissance Florence,” pp. 97–114. }~ +={markets:restructuring+1} + +In like fashion, the Internet is now facilitating some deep shifts in the cost structures and scale of markets. Innovative online business models are significantly undercutting the (expensive) cost structures of traditional Centralized Media, and in the process sometimes creating entirely new sorts of markets (search engine advertising, discounted travel, specialty niches) and more open, competitive markets. +={Internet:socially created value of+3} + +One of the most intriguing developments is a set of “open business models” that shun closed, proprietary technical standards and content restrictions. Unlike the classic industrial business models of the twentieth century, the new open business models make money by aggressively insinuating themselves into open networks. They are able to identify new trends, mobilize talent, interact with customers, and develop customized products more rapidly than competitors. They are also building ingenious new business models “on top of ” social behaviors of online users. (See chapter 10.) +={open business models} + +MySpace, for example, hosts a social network of more than 100 million “friends” (a claim that, even if inflated by inactive user accounts, is indisputably huge). eBay consolidated the world’s garage sales and flea markets into a more efficient market by developing Web-based software that “manages” social trust and reputation and evolves with user interests. Amazon has become a premier online retail Web site by hosting a platform open to all sorts of online vendors and spurred by the recommendations and collective purchase records of buyers. Google devised its famous PageRank search algorithms to aggregate the Web-surfing “wisdom of the crowd,” making online searches vastly more useful. +={Amazon:eBay;Google;MySpace} + +The basic point is that open media platforms are significantly reducing business coordination and communication costs by leveraging people’s natural social behaviors in ways that conventional businesses simply cannot. Open Web platforms allow large and diverse groups to organize themselves and their projects more easily. Individuals have greater self-defined choice and the capacity to express their own market demand; they need not be constrained by the choices presented to them in the market. The Internet has opened up gushing channels of virtual word of mouth, which is a more trusted form of consumer information than advertising. Those companies with excellent products use favorable word of mouth to reduce their marketing and distribution costs. “Smart mobs” can elevate obscure bloggers and Web sites because they regard them as more trustworthy, expert, and authentic (or entertaining) than those of Centralized Media. Many conservatives now trust the Drudge Report and Free Republic more than CBS News, just as many liberals trust DailyKos and Huffington Post more than CBS News. Indeed, the very genre of “objective journalism” — an artifact of the economic necessity of appealing to broad, lowest-commondenominator audiences — is now in jeopardy. +={Internet:virtual word of mouth on;media:participatory;Centralized Media:competition, and+3;markets:restructuring+1} + +As people migrate to the Web, advertising revenues for Centralized Media are eroding further, setting off a scramble to devise new advertising vehicles to reach fugitive Internet users. It is a chase that cannot be avoided because that’s where the eyeballs are. Moreover, the value proposition of open networks is too attractive to ignore. But because that value proposition is so radically different from conventional media — a company must revamp its organizational structures, strategies, marketing, etc. —it raises some wrenching choices for Centralized Media: Should they “go native” and let their products loose on open networks? Or would that destroy their entrenched business models for television shows, theatrical films, music CDs, and other content? The vast infrastructure and business practices of Centralized Media cannot be summarily abandoned, but neither can they remain economically tenable over the long haul without significant changes. For now, Centralized Media are attempting an ungainly straddle of both worlds. +={Centralized Media:alternatives vs.} + +2~ Web 2.0: A New Breed of Participatory Media +={media:participatory+17;Centralized Media:alternatives vs.+17;Web 2.0:applications+17} + +At the time, Eric Eldred’s Web repository of public-domain books could be seen as a modest little experiment. In retrospect, it can be seen as a dawning cultural archetype. It betokened the power of the amateur.~{ Dan Hunter and F. Gregory Lastowka, “Amateur-to-Amateur,” /{William and Mary Law Review}/ 46, no. 951 (December 2004). }~ While Centralized Media continue to have greater resources, talent, and political clout, amateurs are finding their voices and new online venues. A significant cultural emancipation is under way. Creative expression need no longer cater to corporate gatekeepers and the imperatives of the mass market. A no-name amateur can produce useful and influential work without having to go through New York, Los Angeles, London, or Tokyo. The do-ityourself culture is flourishing and expanding. With little money or marketing, anyone can launch a viral spiral that, with enough luck and panache, can sweep across global culture. +={Eldritch Press} + +It is only now dawning on some media chieftains that the biggest threat to Centralized Media is not piracy or online competitors, but /{nonmarket alternatives}/: you, me, and the online friends that we can attract. Hollywood and record labels might rail against “pirates” and demand stronger copyright protection, but the real longterm threat to their business models is the migration of consumer attention to amateur creativity and social communication. Social production on open networks has become a powerful creative and economic force in its own right. Ordinary people can now find their own voices and develop folk cultures of their own that may or may not use the market. +={piracy;Centralized Media:piracy, and} + +After the tech bubble of 2000–2001 burst, the surviving techies and entrepreneurs developed a remarkable range of cheap, versatile software that took to heart the lessons of free software and open networks. Blogs, wikis, social networking software, peer-to-peer file-sharing and metadata tools began to migrate from the tech fringe to the mainstream. There have been many conceptual frames and buzzwords associated with this new order — “smart mobs” (Howard Rheingold), “the wisdom of crowds” (James Surowiecki), “wikinomics” (Don Tapscott and Anthony D. Williams) — but the catchphrase that has gained the most currency is “Web 2.0,” a term launched by Tim O’Reilly in a canonical 2003 essay.~{ Tim O’Reilly, “What Is Web 2.0: Design Patterns and Business Models for the Next Generation of Software,” O’Reilly Media Web site, September 30, 2005, at http://www.oreilly.com/pub/a/oreilly/tim/news/2005/09/30/what-isweb-20.html. }~ +={O’Reilly, Tim;Rheingold, Howard;Surowiecki, James;Tapscott, Don;Williams, Anthony D.;free software:economic effects of;open source software:economic implications of} + +O’Reilly, a prominent publisher of books on open-source software, coined Web 2.0 to describe the fluid social dynamics that occur on open Web platforms — wikis, blogs, social networking Web sites, and other open, collaborative platforms — where people have the freedom to share and reuse work. Web 2.0 amounts to a worldview that celebrates open participation as a way to create valuable collective resources. It regards open technical protocols and content as the basis for this process (whether managed as a commons or a business), and dismisses closed, proprietary regimes as both socially and economically questionable. In essence, Web 2.0 honors socially created value as the basis for value creation, which market players may or may not be able to exploit. +={Web 2.0:coining of term} + +Blogging is more of a social medium than is generally supposed, for example. It is not just the outburst of some ranter in his pajamas, as the stereotype has it, but a social medium that connects people in new ways. Most blogs have a blogroll — a list of admired blogs— which enables the readers of one blog to identify other bloggers engaged in similar conversations. Permalinks — stable Web addresses for blog content — enable people to make reliable Web citations of content, which means that people can coalesce around a shared body of work. And RSS feeds— “Really Simple Syndication” — allow people to “subscribe” to individual blogs and Web sites, enabling them to keep abreast of a sprawling set of communities. +={blogging+1;permalinks;RSS feeds} + +The rise of blog-tracking companies like Technorati and Alexa has also helped blogging become a durable social genre. These companies inventory and rank blogs, and help people discover blogs for virtually any subject of interest — cocktail mixing, high-energy physics, needlework design. By 2007, there were an estimated 100 million blogs in existence (although many were inactive or abandoned), making the blogosphere a powerful cultural force in its own right. There was also a flood of online “news aggregators” — Web sites that cherry-pick their own mix of pieces from the wire services, newspapers, Web sites, blogs, and other online sources. With huge audiences, news aggregators like the Drudge Report (1.6 million unique monthly visitors) and the Huffington Post (773,000 visitors) have begun to rival major daily newspapers in reach and influence. + +Another seminal social innovation has been Wikipedia, a strange and wondrous cultural eruption. Founded by Jimmy Wales and Larry Sanger in January 2001, the English-language Wikipedia began to gain serious momentum in the months after the CC licenses were released, and by early 2003 hosted 100,000 articles. (A “wiki” is a special type of Web site that allows anyone who accesses it to add or modify its contents.) After two years, Wikipedia had amassed a collection of 400,000 articles and inspired the launch of affiliated Wikipedias in more than 100 languages. In May 2008, +={Sanger, Larry;Wales, Jimmy;Wikipedia:social movement, as+2} + +Wikipedia featured 10.2 million articles in 255 languages; 2.3 million of the articles were in English. By harnessing the energies of tens of thousands of volunteers to write an infinitely expandable “encyclopedia,” Wikipedia has become the leading symbol for a radically new way of compiling and editing knowledge.~{ Wikipedia statistics from http://en.wikipedia.org/wiki/Wikipedia:About. }~ Remarkably, the Wikimedia Foundation, the umbrella organization that funds Wikipedia and many sister projects, had fewer than twenty paid employees in 2008 and a budget of less than $2 million. + +Wikipedia has also spun off affiliated multilingual, free-content wikis on various subjects. Wikispecies is compiling an inventory of the world’s species, Wikiquote is collecting thousands of memorable quotations, the Wikimedia Commons is providing freely usable media files, and Wikibooks is assembling open-content textbooks. Wiki software has been adopted by dozens of different online communities, giving rise to scores of collaborative Web sites such as Conservapedia (for American political conservatives), Intellipedia (for U.S. intelligence agencies), Wookieepedia (for Star Wars fans), Wikitravel (for travelers), and OpenWetWare (for biological researchers). + +In the months following the launch of the CC licenses, peer-topeer (P2P) file sharing was also expanding rapidly. Long associated with illicit sharing of copyrighted music, P2P software in fact has many entirely legitimate uses in science, education, and diverse creative sectors. One of the key attractions of P2P software is its efficiency. It does not need to route information through centralized servers; information can be rapidly shared by routing digital files directly to participants, computer to computer, or by passing it through key nodes in an on-the-fly manner. Even after the courts shut down Napster in 2002, a variety of other P2P software applications — Grokster, Lime Wire, KaZaA, Gnutella, BitTorrent — continued to facilitate online sharing and collaboration. Some thirty-five companies, including Hollywood studios, are sufficiently impressed with the efficiencies of P2P that they have licensed BitTorrent technology to distribute their video content. +={Napster;software:P2P} + +Peer-to-peer file sharing has also unleashed radically new types of knowledge creation: volunteers who join the NASA Clickworkers project to count and classify craters on Mars, “citizen scientists” who help compile an interactive database of butterfly and bird sightings, or geneticists from around the world who submit data to the Human Genome Project and share access to the database. + +Although the tech world and some Internet users had known about various networking tools for years, the general public was largely in the dark until the presidential campaign of Vermont governor Howard Dean in 2002 and 2003. At the time, Dean was considered a long-shot antiwar candidate with little base and little money. Within a few short months, however, thanks to Dean’s outspoken style and his campaign’s skillful use of the Internet, he became the front-runner in a field of twelve candidates. Dean did not use the Internet as a simple publishing tool, but as a way to stimulate decentralized collaboration and thereby organize a diverse community of supporters. The campaign was not just about Dean, but about the participation of 640,000 volunteers who virtually organized themselves through various online tools. The campaign became a dynamic conversation between the candidate and voters — and generated a gusher of more than $50 million, most of it donations of a hundred dollars or less. So much was raised that Dean famously asked his supporters whether he should forgo federal matching funds, and instead raise more money from them. They agreed. The campaign ultimately imploded, of course, after his famous “Dean’s Scream” speech — itself a complex story — but what is notable is how the Dean campaign vividly demonstrated the speed and power of viral networks. +={Dean, Howard;Interenet:political campaigns on} + +By 2003 many ordinary people knew about the Napster controversy, the record industry’s scorched-earth litigation tactics against consumers, and the Supreme Court’s ruling in the /{Eldred}/ case. So people welcomed blogs, wikis, and other Web 2.0 applications as tools to emancipate themselves culturally. In the mass media era, people had few tools or sufficient money to speak to the general public or organize their own communities of interest. But now, using a lightweight infrastructure of software code and telecommunications, people could build stable online communities that reflected their own values and social practices. No permission or payment necessary. No expensive capital investments. +={Napster;Eldred v. Reno/Eldred v. Ashcroft;Internet:socially created value of+4;communities:online+4} + +In many instances, amazingly, virtual communities are performing tasks that existing markets are not performing as efficiently or with as much social trust and goodwill. Craigslist, the free want-ad service that has significantly undercut classified advertising in newspapers, is one of the more stellar examples. In South Korea, OhmyNews.org uses thirty-six thousand citizen-journalists to write up to two hundred online stories a day. The publication is considered the sixth-most influential media outlet in Korea, based on a national magazine poll. Countless specialty blogs are considered more expert and timely sources of information and analysis than mainstream newspapers and magazines. +={OhmyNews.org;Craigslist;blogging} + +Taken together, the new participatory media platforms constitute something new under the sun — a globally accessible space that is both personal and public, individual and social. The riot of unfiltered expression that has materialized on the Internet is often dismissed as stupid, unreliable, and silly; or praised as brilliant, stylish, and specialized; or simply accepted as idiosyncratic, irregular, and local. It is all of these things, of course, and that is precisely the point. +={Internet:mass participation in+1} + +If print culture honors the ethic of “edit, then publish,” the Internet inverts it: /{anything}/ can be made public . . . and then it is up to users to become their own editors. On the Internet, people do not “consume” content, they become active writers, editors, and critics in their own right. They use search engines, news aggregators, and favorite bloggers to identify what they want — or they create their own content, as desired. They are /{participants}/, not merely informed consumers who choose what some professional editor offers to them. +={blogging} + +The Web 2.0 environment was quite hospitable for the spread of the CC licenses. It enabled people to signal their willingness to share and their enthusiasm for cool niche fare as opposed to massaudience kitsch.Members of online communities could confidently share their work on wikis and collaborative Web sites, knowing that no one could appropriate their content and take it private. Socially, the licenses let people announce their social identity to others and build a countercultural ethos of sharing. The ethos became hipper and more attractive with every new antipiracy measure that Centralized Media instigated. +={Web 2.0:CC licenses, and;Creative Commons (CC) licenses:Web 2.0 environment, and} + +% Creative Commons (CC) licenses not separated from Creative Commons (CC) in index, try fix above this point + +2~ Open Networks and the Long Tail +={open networks+6} + +While technology and economics have been driving forces in shaping the new participatory platforms, much of their appeal has been frankly cultural. Amateur content on the Net may be raw and irregular, but it also tends to be more interesting and authentic than the highly produced, homogenized fare of commercial media. Some of it vastly outshines the lowest common denominator of mass media. Again, the cheap connectivity of the Internet has been key. It has made it possible for people with incredibly specialized interests to find one another and organize themselves into niche communities. For closeted homosexuals in repressive countries or isolated fans of the actor Wallace Beery, the Internet has enabled them to find one another and mutually feed their narrow interests. You name it, there are sites for it: the fans of obscure musicians, the collectors of beer cans, Iranian exiles, kite flyers. Freed of the economic imperative of attracting huge audiences with broad fare, niche-driven Internet content is able to connect with people’s personal passions and interests: a powerful foundation not just for social communities, but for durable markets. +={Internet:communication system, as+1} + +This, truly, is one of the more profound effects of networking technologies: the subversion of the “blockbuster” economics of the mass media. It is becoming harder and more expensive for film studios and broadcast networks to amass the huge, cross-demographic audiences that they once could. In the networked environment, it turns out that a diversified set of niche markets can be eminently profitable with lower-volume sales. While Centralized Media require a supply-side “push” of content, the Internet enables a demand-side “pull” of content by users. This radically reduces transaction costs and enhances the economic appeal of niche production. It is easier and cheaper for a company (or single creator) to “pull” niche audiences through word of mouth than it is to pay for expensive “push” advertising campaigns. Specialty interests and products that once were dismissed as too marginal or idiosyncratic to be profitable can now flourish in small but robust “pull markets.”~{ David Bollier, “When Push Comes to Pull: The New Economy and Culture of Networking Technology” (Washington, DC: Aspen Institute, 2006), at http://www.aspeninstitute.org/atf/cf/%7BDEB6F227-659B-4EC8-8F84-8DF23CA704F5%7D/2005InfoTechText.pdf. }~ +={Centralized Media:Internet vs.;Internet:Centralized Media vs.} + +The term associated with this phenomenon is the “Long Tail” — the title of a much-cited article by Chris Anderson in the October 2004 issue of /{Wired}/ magazine, later expanded into a book. Anderson explained the “grand transition” now under way: +={Anderson, Chris+2;Long Tail+3} + +_1 For too long we’ve been suffering the tyranny of lowestcommon-denominator fare, subjected to brain-dead summer blockbusters and manufactured pop. Why? Economics. Many of our assumptions about popular taste are actually artifacts of poor supply-and-demand matching — a market response to inefficient distribution. . . . Hit-driven economics is a creation of an age without enough room to carry everything for everybody. Not enough shelf space for all the CDs, DVDs, and games produced. Not enough screens to show all the available movies. . . .~{ Chris Anderson, “The Long Tail,” /{Wired}/, October 2004, at http://www.wired.com/wired/archive/12.10/tail.html. }~ + +The “Long Tail” refers to the huge potential markets that can be created for low-volume niche books, CD, DVDs, and other products. More than half of Amazon’s book sales, for example, come from books that rank below its top 130,000 titles. The implication is that “the market for books that are not even sold in the average bookstore is larger than the market for those that are,” writes Anderson. “In other words, the potential book market may be twice as big as it appears to be, if only we can get over the economics of scarcity.” +={Amazon} + +Unconstrained by the size and tastes of a local customer base or by limited shelf space, online retailers such as Amazon, Netflix (DVDs), Rhapsody (music), and iTunes (music) are showing that the Long Tail can be a very attractive business model. These companies have developed new tools, such as collaborative filtering software and user recommendations, to drive demand for lesser-known titles at the far end of the Long Tail. This is just another instance of using new technologies that leverage people’s natural social dynamics, and in so doing inventing new types of markets. +={Amazon} + + +2~ Another Vehicle for Niche Communities: The Commons +={commons:niche communities as+13;communities:commons, and+13} + +If the Long Tail is a market vehicle for amassing niche communities, the commons is the social analogue. A commons does not revolve around money and market exchange, but around collective participation and shared values. It does not use property rights and contracts in order to generate value; it uses gift exchange and moral commitments to build a community of trust and common purpose. Such communities, it turns out, can generate significant “wealth” — as Richard Stallman demonstrated with free software. +={Stallman, Richard:free software, and;free software:economic effects of} + +Generically speaking, a commons is a governance regime for managing collective resources sustainably and equitably. The commons is generally associated with open fields, forests, and other natural resources that were collectively used by villagers for their subsistence needs. During the “enclosure movement” in medieval times and extending through the eighteenth century, British gentry and entrepreneurs began to privatize the commons and convert its resources into marketable commodities. Enclosures essentially dispossessed the commoners and installed a new market regime to manage resources that were previously shared. The commoners, unable to feed themselves or participate in markets, migrated to the industrial cities of England to become the wage slaves and beggars who populate Charles Dickens’s novels. +={commons:enclosure of+2|tragedy of+2;enclosure movement+2} + +Although markets tend to be more efficient than commons, they also tend to focus on that which can be sold and converted into cash. Markets presume that deserts and the public domain have no value because they have no marketable output. Markets also presume that a commons cannot be sustained because inevitably someone will overuse a shared resource — a practice known as “free riding” —and ruin it. This is the famous “tragedy of the commons” notion popularized by biologist Garret Hardin in a 1968 essay, which described how a few farmers will let their sheep overgraze a common pasture and so destroy it. +={Hardin, Garret;free riding;markets:efficiency of} + +The “tragedy of the commons” metaphor has ossified into a truism of neoclassical economics. It takes for granted that shared resources cannot be managed sustainably, and that private property regimes are much better stewards of resources. This prejudice was powerfully rebutted by political scientist Elinor Ostrom in her noted 1990 book /{Governing the Commons}/, which marshaled many empirical examples of natural resource commons that have been managed responsibly for decades or even hundreds of years. Ostrom’s scholarship has since given rise to a great deal of academic study of commons, particularly through the International Association for the Study of the Commons and the Workshop in Political Theory and Policy Analysis at Indiana University. It also inspired thinking about the commons by law scholars like Yochai Benkler, Lawrence Lessig, and James Boyle, who saw close parallels with the commons as they watched corporations use copyright law to enclose culture and information. +={Benkler, Yochai;Boyle, James;Ostrom, Elinor, Governing the Commons;Lessig, Lawrence:law in contemporary context, and;commons:types of+2} + +Cultural commons differ significantly from natural resource commons in this key respect: they are not finite, depletable resources like pastures or forests. Online commons tend to grow in value as more people participate, provided there is sufficient governance and common technical standards to enable sharing. Online commons, in short, are less susceptible to the dreaded “tragedy of the commons” and, indeed, tend to be highly generative of value. Their output does not get “used up” the way natural resources do. +={commons:online} + +The burden of Lessig’s 2001 book /{The Future of Ideas}/ was to argue that the Internet constitutes a great, underappreciated commons. It can serve as the infrastructure for tremendous wealth and innovation if its “layers” — the hardware, software, and content— remain sufficiently open and usable by all. The problem, he warned with great prescience, is that policymakers are generally blind to the value of the commons and markets are too eager to reap short-term individual gains. They fail to appreciate that too much private control at any “layer” of the Internet — through proprietary hardware or software, or excessive copyright or patent protection — can stifle personal freedom, market competition, and innovation. Lessig wanted to name the book /{Dot.commons}/, but his publisher rejected it as too obscure. +={Lessig, Lawrence:The Future of Ideas} + +One of the key advantages of treating key infrastructure (such as Internet transmission protocols and computer operating systems) as a commons is that people have the freedom to modify and improve them, with resulting benefits for all. Innovation and competition can flourish more readily. At the content layer, much of the appeal of the commons is the creative freedom, above and beyond what the market may enable. Precisely because it is a commons, and not a market, people’s freedoms are not constrained by marketability. A commons is a noncommercial, nongovernmental space that is free from corporate manipulations and government meddling. It offers a qualitatively different type of experience than the marketplace or government power. A commons tends to be more informal, a place where people know you by name, and where your contributions are known and welcomed. A commons based on relationships of trust and reciprocity can undertake actions that a business organization requiring extreme control and predictable performance cannot. +={commons:concept of+1} + +Precisely because a commons is open and not organized to maximize profit, its members are often willing to experiment and innovate; new ideas can emerge from the periphery. Value is created through a process that honors individual self-selection for tasks, passionate engagement, serendipitous discovery, experimental creativity, and peer-based recognition of achievement. The Open Prosthetics Project, for example, invites anyone to contribute to the design of a prosthetic limb and/or the specification of limbs that ought to be designed, even if they don’t know how to do it.~{ http://www.openprosthetics.org. }~ This has generated such unexpected innovations as limbs specifically adapted for rock climbers and an arm designed for fishing. Athletes who engage in “extreme sports” — skiing, biking, surfing — have been a rich source of ideas for new products, just as software hackers are among the first to come up with innovative programming ideas. +={commoners:sef-selection of;commons:value proposition of+1;value:creation of+1} + +Part of the value proposition of the commons at the content layer is that it can host a more diverse range of expression — personal, social, and creative — than the market, in part because it does not have the burden of having to sustain costly overhead and sell a product. It has other goals — the personal interests and whims of the commoners — and it can often meet those needs inexpensively. Yet the commons does in fact generate many marketable innovations, thanks to its open accessibility, the social relationships it enables and the free sharing and circulation of work. + +Seeing the success of online commons, Centralized Media have tried to fight back by embracing elements of user participation. They invite audiences to vote in polls (/{American Idol}/), publish lists of “most e-mailed” articles (major newspapers), and direct radio listeners to their Web sites for more information (National Public Radio). /{Time}/ magazine’s choice for the “Person of the Year” in 2006 — “You,” the primary driver of Web sites like MySpace and YouTube — was a landmark moment in media history: with a pinched smile and backhanded assertion of its cultural authority, Centralized Media formally acknowledged its most powerful competitor, Decentralized Media! +={Centralized Media:competition, and+2;commons:online;Time (magazine)} + +Yet for all the celebration of “you” as the master of your own fate in cyberspace, the question that is skirted is whether “you” can indeed retain control of your stuff in a Centralized Media environment. The point of conventional business models, after all, is to engineer a proprietary lock-in of customers through technological dependence, binding contract terms, frequent-buyer credits, brand loyalty, etc. That’s how companies have traditionally secured a more durable customer base and preempted competition. + +But the commons is about securing user freedoms, and not necessarily about prevailing in a market. Web 2.0 may or may not protect both concerns. Like the commons, Web 2.0 relies upon user-generated content, network effects, and bottom-up innovation. But Web 2.0 entrepreneurs, at the end of the day, need to make money. Their sites need to adopt business practices that protect revenue streams. Facebook is catering to advertisers, not users, when they sift through masses of users’ personal data in order to sell targeted advertising. MySpace at one point refused to let its users connect to rival Web sites and outside software “widgets.”~{ Rachel Rosmarin, “Why MySpace Blinked,” /{Forbes}/, April 24, 2007. }~ In this sense, Web 2.0 media may be “open,” but they are not necessarily “free,” as in freedom. Web 2.0 entrepreneurs are more likely to focus on protecting their market advantages than advancing user freedoms. The two issues may overlap substantially, but they are not identical. +={commons:concept of;Facebook;MySpace;Web 2.0:purposes of+1} + +Science-fiction writer William Gibson once wrote, “The future is already here; it’s just not well-distributed yet.” That sums up the Great Value Shift circa 2003. The efficiencies and affordances made possible by the Internet were there. They were enabling all sorts of pioneers to build new business models, new creative genres, and new online communities — but these innovations were unevenly distributed. More to the point, their potential was unevenly perceived, especially in many precincts of Washington officialdom and the corporate world. The challenge for amateurs venturing onto open platforms was to validate the new sorts of socially created value enabled by the Internet. +={Gibson, William;Great Value Shift;Internet:Great Value Shift, and} + +1~ 6 CREATORS TAKE CHARGE + +/{Rip, remix, burn, mashup — legally. The CC licenses facilitate new Internet genres and business models.}/ + +The first users of CC licenses understood that something different was going on; a different order was taking shape. More than just a legal tool, the CC licenses gave the tech vanguard a way to express their inchoate sense that a new and better world was possible, at least on the Internet. They yearned for a noncommercial sharing economy with a different moral calculus than mass media markets, and for markets that are more open, accountable, and respectful of customers. +={Creative Commons (CC) licenses:first users of+9|books, for+19} + +The early adopters were unusually informed about the politics of technology, skeptical of Big Media, and passionate about the artistic freedoms and social responsibility. They were a locally engaged but globally aware network of tech sophisticates, avant-garde artists, clued-in bloggers, small-/{d}/ democratic activists, and the rebellious of spirit: the perfect core group for branding the Creative Commons and instigating a movement. + +It only made sense that Cory Doctorow — copyfighter, sciencefiction writer, tech analyst, co-editor of the popular Boing Boing blog — became the first book author to use a CC license. Doctorow — then a thirty-two-year-old native of Canada, the son of Trotskyite schoolteachers, the European representative for the Electronic Frontier Foundation from 2002 to 2006 — is a singular character on the tech/intellectual property/free culture circuit. He can hold forth with intelligence, wry wit, and bravado on digital rights management, Internet economics, or the goofy gadgets and pop culture artifacts that he regularly showcases on Boing Boing. + +In January 2003, a month after the CC licenses were released, Doctorow published his first novel, /{Down and Out in the Magic Kingdom}/, under an Attribution, NonCommercial, No Derivative Works license (BY-NC-ND). Simultaneously, his progressive-minded publisher, Tor Books of New York City, sold hard copies of the book. “Why am I doing this thing?” Doctorow asked rhetorically: +={Doctorow, Cory:Down and Out in the Magic Kingdom+5} + +_1 Well, it’s a long story, but to shorten it up: first-time novelists have a tough row to hoe. Our publishers don’t have a lot of promotional budget to throw at unknown factors like us. Mostly, we rise and fall based on word-of-mouth. I’m not bad at word-of-mouth. I have a blog, Boing Boing (http://boingboingnet), where I do a /{lot}/ of word-ofmouthing. I compulsively tell friends and strangers about things I like. And telling people about stuff is /{way, way}/ easier if I can just send it to ’em. Way easier.~{ Cory Doctorow, “A Note About This Book,” February 12, 2004, and “A Note About This Book,” January 9, 2003, in /{Down and Out in the Magic Kingdom}/, available at http://www.craphound.com/down. }~ + +A year later, Doctorow announced that his “grand experiment” was a success; in fact, he said, “my career is turning over like a goddamned locomotive engine.” More than thirty thousand people had downloaded the book within a day of its posting. He proceeded to release a collection of short stories and a second novel under a CC license. He also rereleased /{Down and Out in the Magic Kingdom}/ under a less restrictive CC license — an Attribution, NonCommercial, ShareAlike license (BY-NC-SA), which allows readers to make their own translations, radio and film adaptations, sequels, and other remixes of the novel, so long as they are made available on the same terms.~{ Anna Weinberg,“Buying the Cow, Though the Milk Is Free: Why Some Publishers are Digitizing Themselves,” June 24, 2005, /{Book Standard}/, June 24, 2005, available at http://www.thebookstandard.com/bookstandard/news/publisher/article_display.jsp?vnu_content_id=1000968186. }~ + +With some sheepish candor, Doctorow conceded: “I wanted to see if the sky would fall: you see writers are routinely schooled by their peers that maximal copyright is the only thing that stands between us and penury, and so ingrained was this lesson in me that even though I had the intellectual intuition that a ‘some rights reserved’ regime would serve me well, I still couldn’t shake the atavistic fear that I was about to do something very foolish indeed.” + +By June 2006, /{Down and Out in the Magic Kingdom}/ had been downloaded more than seven hundred thousand times. It had gone through six printings, many foreign translations, and two competing online audio adaptations made by fans. “Most people who download the book don’t end up buying it,” Doctorow conceded, “but they wouldn’t have bought it in any event, so I haven’t lost any sales. I’ve just won an audience. A tiny minority of downloaders treats the free e-book as a substitute for the printed book — those are the lost sales. But a much larger minority treats the e-book as an enticement to buy the printed book. They’re gained sales. As long as gained sales outnumber lost sales, I’m ahead of the game. After all, distributing nearly a million copies of my book has cost me nothing.”~{ Cory Doctorow, “Giving it Away,” Forbes.com, December 1, 2006, available at http://www.forbes.com/2006/11/30/cory-doctorow-copyright-tech-media_cz_cd_books06_1201doctorow.html. }~ In 2008, Doctorow’s marketing strategy of giving away online books to stimulate sales of physical books paid off in an even bigger way. His novel for teenagers, /{Little Brother}/, about a youthful hacker who takes on the U.S. government after it becomes a police state, spent weeks on the /{New York Times}/ bestseller list for children’s books. + +It is perhaps easier for a sci-fi futurist like Doctorow than a publishing business to take such a wild leap into the unknown. But that, too, is an important insight: artists are more likely to lead the way into the sharing economy than entrenched industries. “I’d rather stake my future on a literature that people care about enough to steal,” said Doctorow, “than devote my life to a form that has no home in the dominant medium of the century.” Book lovers and authors will pioneer the future; corporate publishing will grudgingly follow, or be left behind. + +Over the past few years, a small but growing number of pioneering authors have followed Doctorow’s lead and published books under Creative Commons licenses. While the hard evidence is scarce, many authors who use CC licenses believe that releasing free electronic versions of their books does not hurt, and probably helps, the sales of physical copies of their books. Lessig released his 2004 book, /{Free Culture}/, under an Attribution, NonCommercial license (BY-NC), and scores of authors and established publishers have since released books under CC licenses. Among the more notable titles: Yochai Benkler’s /{The Wealth of Networks}/ (Yale University Press, 2006), Kembrew McLeod’s /{Freedom of Expression}/ (Doubleday, 2005), Peter Barnes’s /{Capitalism 3.0}/ (Berrett-Koehler, 2006), and Dan Gillmor’s /{We the Media}/ (O’Reilly Media, 2004). +={Barnes, Peter:Capitalism 3.0;Benkler, Yochai:The Wealth of Networks;Gillmor, Dan:We the Media;Lessig, Lawrence:Free Culture;McLeod, Kembrew:Freedom of Expression} + +In 2006, Paulo Coelho, author of a bestselling book, /{The Alchemist}/, created a “pirate” blog site that invited readers to use BitTorrent and other file-sharing networks to download free copies of his books. After he put the Russian translation of /{The Alchemist}/ online, sales of hardcover copies in Russia went from around 1,000 a year to 100,000, and then to more than 1 million. Coelho attributes the success of foreign translations of his book to their free availability online.~{ Smaran, “Alchemist Author Pirates His Own Book,” TorrentFreak blog, January 24, 2008, at http://torrentfreak.com/alchemist-author-pirates-own-books080124. }~ Experiments such as these were likely influential in the launch of LegalTorrents, a site for the legal peer-to-peer distribution of CC-licensed text, audio, video games, and other content. +={blogging;Coelho, Paulo} + +The CC licenses have been useful, not just for helping individual authors promote their books, but in fueling open-access scholarly publishing. As we will see in chapter 11, the CC licenses help scientists put their “royalty-free literature” on the Internet — a move that enlarges their readership, enhances their reputations, and still enables them to retain copyrights in their works. + +Free culture publishing models are popping up in many unusual quarters these days. LibriVox, to take one instance, is a nonprofit digital library of public-domain audio books that are read and recorded by volunteers.~{ Mia Garlick, “LibriVox,” Creative Commons blog, December 5, 2006, at http://creativecommons.org/text/librivox. }~ Since it started in 2005, the group has recorded more than 150 books by classic authors from Dostoyevsky and Descartes to Jane Austen and Abraham Lincoln. All of them are free. Most are in English but many are in German, Spanish, Chinese, and other languages. +={Lessig, Lawrence:Free Culture+1} + +Founder Hugh McGuire said the inspiration for LibriVox was a distributed recording of Lessig’s book /{Free Culture}/ read by bloggers and podcasters, chapter by chapter. “After listening to that, it took me a while to figure out how to record things on my computer (which I finally did, thanks to free software Audacity). Brewster Kahle’s call for ‘Universal Access to all human knowledge’ was another inspiration, and the free hosting provided by archive.org and ibiblio.org meant that LibriVox was possible: there was no worry about bandwidth and storage. So the project was started with an investment of $0, which continues to be our global budget.” LibriVox’s mission, said McGuire, is the “acoustical liberation of books in the public domain.” +={Kahle, Brewster;LibriVox;McGuire, Hugh;bloging} + +Several publishing businesses now revolve around CC licenses. Wikitravel is a collaborative Web site that amasses content about cities and regions around the world; content is licensed under the CC Attribution, ShareAlike license (BY-SA).~{ “Wikitravel Press launches,” Creative Commons blog, August 3, 2007, at http://creativecommons.org/weblog/entry/7596. See also Mia Garlick, “Wikitravel,” Creative Commons blog, June 20, 2006, at http://creativecommons.org/text/wikitravel. }~ In 2007, its founder joined with a travel writer to start Wikitravel Press, which now publishes travel books in a number of languages. Like the Wikitravel Web pages, the text in the books can be freely copied and reused. +={Wikitravel Press} + +Another new business using CC licenses is Lulu, a technology company started by Robert Young, the founder of the Linux vendor Red Hat and benefactor for the Center for the Public Domain.Lulu lets individuals publish and distribute their own books, which can be printed on demand or downloaded. Lulu handles all the details of the publishing process but lets people control their content and rights. Hundreds of people have licensed their works under the CC ShareAlike license and Public Domain Dedication, and under the GNU Project’s Free Documentation License.~{ Mia Garlick, “Lulu,” Creative Commons blog, May 17, 2006, at http://creativecommons.org/text/lulu. }~ +={Lulu;Red Hat;Young, Robert;Center for the Public Domain;GNU Project:GNU FDL;public domain:Center for Public Domain} + +As more of culture and commerce move to the Internet, the question facing the book industry now is whether the text of a book is more valuable as a physical object (a codex) or as a digital file (intangible bits that can circulate freely), or some combination of the two. Kevin Kelly, the former editor of /{Wired}/ magazine, once explained: “In a regime of superabundant free copies, copies lose value. They are no longer the basis of wealth. Now relationships, links, connection and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer and engage a work.”~{ Kevin Kelly, “Scan This Book!” /{New York Times Magazine}/, May 14, 2006, p. 43. }~ +={Kelly, Kevin+1} + +What this means in practice, Kelly has pointed out, is that books become more valuable as they become more broadly known and socially circulated — the very functionalities that the Internet facilitates. If people can discover a book online and read portions of it, share it with friends, and add annotations and links to related materials, it makes a book more desirable than a hard-copy version that is an inert text on a shelf. As Kelly writes: “When books are digitized, reading becomes a community activity. Bookmarks can be shared with fellow readers. Marginalia can be broadcast. Bibliographies swapped. You might get an alert that your friend Carl has annotated a favorite book of yours. A moment later, his links are yours.”~{ Ibid., p. 45. }~ + +Needless to say, most book publishers and authors’ organizations are not yet prepared to embrace this newfangled value proposition. It seems way too iffy. A “sharing” business model would seemingly cannibalize their current revenues and copyright control with little guarantee of doing better in an open, online milieu. The bigger problem may be the cultural prejudice that an absolute right of control over any possible uses of a book is the best way to make money. +={open business models} + +In general, the publishing trade remains skeptical of the Internet, clueless about how to harness its marketing power, and strangers to CC licenses. And it could be years before mainstream publishing accepts some of the counterintuitive notions that special-interest Internet communities will drive publishing in the future. In a presentation that caused a stir in the book industry, futurist Mike Shatzkin said in May 2007 that this is already happening in general trade publishing: “We’re close to a tipping point, or maybe we’re past it . . . where Web-based branding will have more credibility than print, because print, needing more horizontal reach to be viable, won’t deliver the attention of the real experts and megaphones in each field.”~{ Mike Shatzkin, “The End of General Trade Publishing Houses: Death or Rebirth in a Niche-by-Niche World,” presented to the Book Expo America, New York, May 31, 2007, available at http://www.idealog.com/speeches/endoftrade.htm. }~ +={Shatzkin, Mike} + +2~ DIY Videos and Film +={Internet:videos and films on+12;videos and film+12;World Wide Web:videos and film on+12} + +One of the biggest cultural explosions of the past decade has been amateur video on the Web. The volume of online video has been so great that there are actually many distinct genres of amateur video: short videos on YouTube, video mashups, “machinima” (a combination of video and online gaming images), amateur pornography, and hybrid forms that combine user videos with conventional broadcast and cable television shows. Just as the Great Value Shift has empowered musicians, so it is giving video- and filmmakers new powers to express themselves as they wish, and reach huge audiences via the Internet. This power represents a potentially major threat to the cultural dominance of the television and film industries, as reflected in various schemes by the networks and studios to establish their own online presences. The threat of do-it-yourself (DIY) video and film is big enough that Viacom alleged that YouTube’s copyright infringements of Viacom-owned video should entitle Viacom to $1 billion in damages. The entertainment industry and the Writers Guild of America endured a long, bitter strike in 2007–2008 precisely because the projected revenues from Internet video are so large. +={Great Value Shift;Internet:Great Value Shift, and;YouTube+2;Viacom;Writers Guild of America} + +It is too early to know which new video styles will be flash-inthe-pan novelties and which will ripen into popular, and perhaps lucrative, genres. But rarely has a culture seen so many diverse experiments in amateur and indie video expression. One site, Justin.tv, is a free platform for broadcasting and viewing live video. Some people make round-the-clock “life casts” of their daily activities; others have used it to broadcast live from Baghdad, showing war-related events. Yahoo and Reuters have entered into a partnership to host amateur photojournalism by people using their digital cameras and camera phones. Machinima video, the product of the underground gaming community, blends filmmaking with online games to produce computer-generated imagery. As John Seely Brown describes it, “Basically, you can take Second Life or Worlds of Warcraft and have a set of avatars run all over the world, that come together and create their own movie, and then you can ‘YouTube’ the movie.”~{ Cited in David Bollier, /{The Rise of Collective Intelligence: Decentralized Cocreation of Value as a New Paradigm in Commerce and Culture}/ (Washington, DC: Aspen Institute Communications and Society Program, 2007), p. 27. }~ +={Brown, John Seely} + +As amateur video and film proliferate, thanks to inexpensive technologies and Internet access, the CC licenses have obvious value in letting the creator retain a copyright in the video while inviting its duplication and reuse by millions of people online. To industry traditionalists locked into binary options, the free circulation of a work precludes any moneymaking opportunities. But of course, that is precisely what is now being negotiated: how to devise ingenious new schemes to make money from freely circulating video. One option is to own the platform, as YouTube does. But there are also competitors such as Revver and blip.tv, which have established their own approaches based on advertising and commercial licensing of works. There are also schemes that use Internet exposure to drive paying customers into theaters and advertisers to buy commercial licenses. For some amateurs, DIY video is simply a way to get noticed and hired by a conventional media company. +={Creative Commons (CC) licenses:video and film, for+8} + +That’s what the Los Angeles–based comedy collective The Lonely Island did to promote themselves to national attention. They posted their comedy shorts and songs to their Web site using Creative Commons licenses. Soon other artists began making remixes of their songs. The remixes in effect served as free marketing, which caught the attention of the Fox Broadcasting Company, which in turn hired them to create a comedy pilot TV episode. In the end, Fox did not pick up the show, but as /{Wired News}/ recounted, “Instead of letting the show wither on a shelf somewhere, the group posted the full video both cut and uncut. The edgy, quirky short— Awesometown — spread like wildfire online and eventually landed all three performers an audition spot for /{Saturday Night Live}/.”~{ Matt Haughey, “From LA’s Awesometown to New York City’s SNL,” /{Wired News}/, October 1, 2005. }~ + +Perhaps the most successful example of leveraging free Internet exposure to reap commercial benefits is the sci-fi parody /{Star Wreck}/. Finnish producer Samuli Torssonen took seven years to shoot a fulllength movie using a Sony DVCAM, computer-generated graphics, and a makeshift studio. Some three hundred people were involved in the project, including some professional actors and many amateurs. When /{Star Wreck}/ was deliberately posted to the Internet in 2005, tagged with a CC-BY-NC-ND license (Attribution, NonCommercial, No Derivatives), it was eventually downloaded 5 million times and became the most-watched Finnish film in history. Fans in Russia, China, and Japan soon copied the film, which stimulated broader viewer demand and led to commercial deals to distribute the film. /{Star Wreck}/ became so popular that Universal Pictures, the American studio, signed a deal in 2006 to distribute DVD versions of the film. Torssonen says that the film has earned a 20to-1 return on investment. “I wouldn’t call free distribution stupid, as some people say, but a success,” he told an audience in 2007.~{ Samuli Torssonen presentation at iCommons Summit 2007, Dubrovnik, Croatia, June 15, 2007. See also www.starwreck.com. }~ +={Star Wreck Studios+1;Torssonen, Samuli} + +The lesson for Stephen Lee, CEO of Star Wreck Studios, is that “you don’t need millions to make a quality movie. You need an active, passionate community.” Lee says the plan for a peer-produced model of “wrecking a movie” is to develop an Internet collaboration, make the film popular through viral marketing, and then license it commercially. Star Wreck Studios is now developing a new movie, /{Iron Sky}/, about a Nazi base on the far side of the moon. +={Lee, Stephen} + +One of the more daring experiments in film production is being pioneered by the Blender Institute, a studio for open-content animation and game projects located in the Amsterdam docklands. Started in August 2007, the Institute employs fourteen full-time people who are obsessed with improving its three-dimensional open-source software, the so-called Blender 3D suite. The software is widely used by a large international user community for modeling, animation, rendering, editing, and other tasks associated with 3D computer-generated animation. +={Blender Institute+2} + +Ton Roosendaal, who directs the Blender Institute, is trying to demonstrate that a small studio can develop a virtuous cycle of economically sustainable creativity using open-source software, Creative Commons licenses, and talented programmers and artists from around the world. “We give programmers the freedom to do their best, and what they want to do is improve the technology,” he said. “The market is too hyper-rational and nailed down and filled with limits,” he argues, referring to his peers at major animation studios. “Open source is free of most of these constraints.”~{ Ton Roosendaal remarks at conference, “Economies of the Commons,” De Balie Centre for Culture and Politics, Amsterdam, April 10–12, 2008. }~ +={Roosendaal, Ton} + +In April 2008, the Blender Institute released a ten-minute animated short, /{Big Buck Bunny}/, which features a kind-hearted, fat white bunny who endures the abuse of three stone-throwing rodents until they smash a beautiful butterfly with a rock — at which point the bunny rallies to teach the bullies a lesson.~{ The film can be downloaded at http://www.bigbuckbunny.org/index.php/download. }~ The film uses cutting-edge computer-generated animation techniques that rival anything produced by Pixar, the Hollywood studio responsible for /{Toy Story}/, /{Cars}/, and /{Ratatouille}/. /{Big Buck Bunny}/ is licensed under a CC Attribution license, which means the digital content can be used by anyone for any purpose so long as credit is given to the Blender Institute. +={Big Buck Bunny (animated short)+1} + +/{Big Buck Bunny}/ was initially distributed to upfront investors as a DVD set that includes extras such as interviews, outtakes, deleted scenes, and the entire database used in making the film. Then, to pique wider interest in sales of the DVD set, priced at thirty-four euros, a trailer was released on the Internet. This resulted in extensive international press coverage and blog exposure. Early signs are promising that Blender will be able to continue to make highquality animation on a fairly modest budget without worries about illegal downloads or a digital rights management system. The Blender production model also has the virtue of enabling access to top creative talent and cutting-edge animation technologies as well as efficient distribution to paying audiences on a global scale. + +While CC-licensed films are not common, neither are they rare. Davis Guggenheim, the filmmaker who directed /{An Inconvenient Truth}/, made a short film, /{Teach}/, to encourage talented people to become teachers. The film was released in 2006 under a CC BY-NCND license because Guggenheim wanted the film widely available to the public yet also wanted to preserve the integrity of the stories told, hence the NoDerivatives provision. A Spanish short film, /{Lo que tú Quieras Oír}/, became YouTube’s fifth most-viewed video— more than 38 million views. The film’s viral diffusion may have been helped by the CC BY-NC-SA (Attribution, NonCommercial, ShareAlike) license, which allows viewers not only to share the film, but to remix for noncommercial purposes so long as they use the same license. +={Guggenheim, Davis;YouTube} + +In Brazil, director Bruno Vianna released his first full-length film, /{Cafuné}/, under a CC BY-NC-SA license (Attribution, NonCommercial, ShareAlike) and put it on file-sharing networks at the same time that it was exhibited in a handful of theaters.~{ Mia Garlick, CC blog, at http://creativecommons.org/weblog/entry/6048; see also “Cafuné breaking the limits for open business models,” iCommons blog, at http://www.icommons.org/static/2006/11/22/cafune-breakingthe-limits-for-open-business-models. }~ Each release had different endings; downloaders were invited to remix the ending as they wished. The film was financed by the government’s culture ministry as part of a competition for low-budget films, but only about fifty Brazilian films are released to commercial theaters each year. Vianna saw the Internet release as a great way to build an audience for his debut film . . . which is exactly what happened. For some weeks, it made it into the list of twenty most-watched films in the country. +={Vianna, Bruno} + +2~ Letting the Music Flow +={music:CC licenses for+18|remixes+18;remix works+18;Creative Commons (CC) licenses:music, for+18} + +Media reform activist Harold Feld offers a succinct overview of why creativity in music — and therefore the business of selling recorded music — has suffered over the past two decades: +={Feld, Harold+2} + +_1 The 1990s saw a number of factors that allowed the major labels to push out independents and dominate the market with their own outrageously priced and poorly produced products: consolidation in the music industry, the whole “studio system” of pumping a few big stars to the exclusion of others, the consolidation in music outlets from mom-andpop record stores to chains like Tower Records and retail giants like Wal-Mart that exclude indies and push the recordings promoted by major labels, and the consolidation of radio — which further killed indie exposure and allowed the labels to artificially pump their selected “hits” through payola. All this created a cozy cartel that enjoyed monopoly profits. +={music:music industry+1} + +_1 As a result, the major labels, the mainstream retailers, and the radio broadcasters grew increasingly out of touch with what listeners actually wanted. But as long as the music cartel controlled what the vast majority of people got to hear, it didn’t matter . . . The music cartel remained the de facto only game in town.~{ Harold Feld, “CD Sales Dead? Not for Indies!” blog post on Public Knowledge Web site, March 27, 2007, at http://www.publicknowledge.org/node/890. }~ + +Changing the music industry is obviously a major challenge that is not going to be solved overnight. Still, there is a growing effort led by indie musicians, small record labels, Internet music entrepreneurs, and advocacy groups such as the Future of Music Coalition to address these problems. Creative Commons is clearly sympathetic, but has largely focused on a more modest agenda — enabling a new universe of shareable music to arise. Its chief tools for this mission, beyond the CC licenses, are new software platforms for legal music remixes, online commons that legally share music, and new business models that respect the interests of both fans and artists. Ultimately, it is hoped that a global oeuvre of shareable music will emerge. Once this body of music matures, attracting more artists and fans in a self-sustaining viral spiral, the record industry may be forced to give up its dreams of perfect control of how music may circulate and adopt fan-friendly business practices. +={Future of Music Coalition} + +This, at least, is the theory, as Lessig explains it. He calls it the “BMI strategy,” a reference to the strategy that broadcasters and musicians used to fight ASCAP’s monopoly control over radio music in the early 1940s. ASCAP, the American Society of Composers, Authors and Publishers, is a nonprofit organization that collects royalties for musical performances. At the time, ASCAP required artists to have five hits before it would serve as a collection agency for them, a rule that privileged the playing of pop music on the radio at the expense of rhythm and blues, jazz, hillbilly, and ethnic music. Then, over the course of eight years, ASCAP raised its rates by 450 percent between 1931 and 1939 — at which point, ASCAP then proposed /{doubling}/ its rates for 1940. In protest, many radio stations refused to play ASCAP-licensed music. They formed a new performance-rights body, BMI, or Broadcast Music, Inc., which sought to break the ASCAP monopoly by offering free arrangements of public-domain music to radio stations. They also charged lower rates than ASCAP for licensing music and offered better contracts for artists.~{ Donald Clarke, /{The Rise and Fall of Popular Music}/, chapter 11. }~ +={ASCAP+1;BMI (Broadcast Music, Inc.)+3;music:ASCAP+l;Lessig, Lawrence:CC licenses, and+2|music, and+2} + +“The Internet is today’s broadcasters,” said Lessig in a 2006 speech. “They are facing the same struggle.”~{ Lessig explained his BMI strategy at a speech, “On Free, and the Differences Between Culture and Code,” at the 23d Chaos Communications Conference (23C3) in Berlin, Germany, December 30, 2006; video can be watched at http://video.google.com/videoplay?docid=7661663613180520595&q=23c3. }~ Just as ASCAP used its monopoly power to control what music could be heard and at what prices, he said, so today’s media corporations want to leverage their control over content to gain control of the business models and technologies of digital environments. When Google bought YouTube, one-third of the purchase price of $1.65 billion was allegedly a financial reserve to deal with any copyright litigation, said Lessig. This is how the incumbent media world is trying to stifle the emergence of free culture. +={Google;YouTube} + +The same questions that once confronted broadcasters are now facing Internet innovators, Lessig argues: “How do we free the future from the dead hand of the past? What do we do to make it so they can’t control how technology evolves?” With copyright terms lasting so long, it is not really feasible to try to use public-domain materials to compete with a commercial cartel. Lessig’s answer is a BMI-inspired solution that uses the CC licenses to create a new body of “free” works that, over time, can begin to compete with popular works. The legendary record producer Jerry Wexler recalled how ASCAP marginalized R & B, country, folk, and ethnic music, but “once the lid was lifted — which happened when BMI entered the picture — the vacuum was filled by all these archetypal musics. BMI turned out to be the mechanism that released all those primal American forms of music that fused and became rock-androll.”~{ From BMI, Inc., Web site, at http://www.bmi.com/genres/entry/533380. }~ Lessig clearly has similar ambitions for Creative Commons. +={Wexler, Jerry} + +For now, the subculture of CC-licensed music remains something of a fringe movement. It is easy to patronize it as small, amateurish, and quirky. Yet its very existence stands as a challenge to the music industry by showing the feasibility of a more artist- and fanfriendly way of distributing music. Is it visionary to believe that free culture artists will force the major labels to change — just as BMI forced ASCAP to lower prices — and make them more competitive and inclusive? +={ASCAP;music:ASCAP+1;music:music industry} + +Creative Commons’s primary task is practical — to help musicians reach audiences directly and reap more of the financial rewards of their music. So far, a wide range of indie bands, hip-hop artists, and bohemian experimentalists of all stripes have used the licenses. One of the most popular is the Attribution, NonCommercial license, which lets artists share their works while getting credit and retaining commercial rights. A number of marquee songwriters and performers — David Byrne, Gilberto Gil, the Beastie Boys, Chuck D — have also used CC licenses as a gesture of solidarity with free culture artists and as an enlightened marketing strategy. Inviting people to remix your songs is a great way to engage your fan base and sell more records. And tagging your music with a CC license, at least for now, wraps an artist in a mantle of tech sophistication and artistic integrity. +={Beastie Boys;Byrne, David;Chuck D;Gil, Gilberto} + +Guitarist Jake Shapiro was one of the first musicians to show the marketing potential of unleashing free music on the Internet. In 1995, Shapiro put MP3 files of music by his band, Two Ton Shoe, on the group’s Web site. Within a few years, Two Ton Shoe was one of the most-downloaded bands on the Internet, developing fan bases in Italy, Brazil, Russia, and South Korea. One day Shapiro received a phone call out of the blue from a South Korean concert promoter. He wanted to know if the band would fly over to Seoul to perform four concerts. It turned out that fans in South Korea, where fast broadband connections are the norm, had discovered Two Ton Shoe through file sharing. A local CD retailer kept getting requests for the band’s music, which led him to contact a concert promoter. In August 2005, Shapiro and his buddies arrived in Seoul as conquering rock stars, selling out all four of their concerts. “The kids who showed up knew all the words to the songs,” Shapiro recalled. A year later, the band signed a deal to distribute a double CD to East Asia.~{ Shapiro described his experiences at the “Identity Mashup Conference,” June 19–21, 2006, hosted by the Berkman Center for Internet and Society at Harvard Law School, at http://blogs.law.harvard.edu/mediaberkman/2006/06/28/id-mashup-2006-day-two-the-commons-open-apis-meshups-and-mashups. His band’s Web site is at http://www.twotonshoe.com. }~ +={Shapiro, Jake;Two Ton Shoe} + +While such stories of viral marketing success are not common, neither are they rare. Lots of bands now promote themselves, and find admiring (paying) fans, by posting their music, for free, on Web sites and file-sharing sites. Perhaps the most scrutinized example was Radiohead’s decision to release its album /{In Rainbows}/ for free online, while inviting fans to pay whatever they wanted. (The band did not release any numbers, but considered the move a success. They later released the album through conventional distribution channels as well.)~{ Jon Pareles, “Pay What You Want for This Article,” /{New York Times}/, December 9, 2007. }~ +={Radiohead} + +Just as previous generations of fans came together around FM radio or live performance venues, the Internet is the new gathering place for discovering interesting, fresh, and authentic talent. The lesson that the record industry hasn’t quite learned is that music is not just a commodity but a /{social experience}/ — and social experiences lose their appeal if overly controlled and commercialized. If the music marketplace does not provide a place for fans to congregate and share in a somewhat open, unregimented way — if the commodity ethic overwhelms everything else — the music dies. Or more accurately, it migrates underground, outside the marketplace, to sustain itself. This is why so much of the best new music is happening on the fringes of the stagnant commercial mainstream. +={music:social experience, as+4} + +It is also why the Creative Commons licenses have acquired such cachet. They have come to be associated with musicians who honor the integrity of music making. They symbolize the collective nature of creativity and the importance of communing freely with one’s fans. Nimrod Lev, a prominent Israeli musician and supporter of the CC licenses, received considerable press coverage in his country for a speech that lamented the “cunning arrangement” (in Israeli slang, /{combina}/) by which the music industry has betrayed people’s love of music, making it “only a matter of business and commerce.” Said Lev: +={music:music industry+1;Lev, Nimrod+2} + +_1 The music industry treats its consumer as a consumer of sex, not of love, the love of music. Just like everything else: a vacuum without values or meaning. But it is still love that everyone wants and seeks. . . . The music vendors knew then [a generation ago] what they have forgotten today, namely that we must have cultural heroes: artists that are not cloned in a manner out to get our money. There was an added value with a meaning: someone who spoke to our hearts in difficult moments, and with that someone, we would walk hand in hand for a while. We had loyalty and love, and it all meant something.~{ Nimrod Lev, “The Combina Industry,” November 16, 2004, at http://law.haifa.ac.il/techlaw/new/try/eng/nimrod.htm. }~ + +At the risk of sounding naïve, Lev said he wanted to stand up for the importance of “authenticity and empathy and my own truth” in making music. It is a complaint that echoes throughout the artistic community globally. A few years ago, Patti Smith, the punk rocker renowned for her artistic integrity, decried the “loss of our cultural voice” as the radio industry consolidated and as music television became a dominant force. She grieved for the scarcity of places for her to “feel connected” to a larger musical community of artists and fans.~{ Patti Smith at a panel at the National Conference for Media Reform, St. Louis, sponsored by Free Press, May 14, 2005. }~ +={Smith, Patti} + +The classic example of music as social experience — music as a vehicle for a community of shared values — is the Grateful Dead. The band famously invited its fans to record all of its concerts and even provided them with an authorized “tapers’ section” in which to place their microphones and equipment. Fans were also allowed to circulate their homemade tapes so long as the music was shared, and not sold. This had the effect of building a large and committed fan base, which avidly archived, edited, and traded Grateful Dead cassettes. One reason that the Dead’s “customer base” has been so lucrative and durable over several decades is that the fans were not treated as mere customers or potential pirates, but as a community of shared values. The music belonged to the fans as much as to the band, even though Deadheads were only too happy to pay to attend concerts and buy the officially released CDs and t-shirts.~{ A fascinating collision of the Grateful Dead’s sharing ethic and the copyright business model occurred in 2005, when the Internet Archive placed a huge cache of fan recordings online, available for free download. When Grateful Dead Merchandising objected, Deadheads accused the band’s representatives of betraying the band’s long-established sharing ethic. Paradoxically, the band’s merchandisers may also have jeopardized the band’s commercial appeal by prohibiting the downloads. As music critic Jon Pareles put it, “The Dead had created an anarchy of trust, going not by statute but by instinct and turning fans into co-conspirators, spreading their music and buying tickets, T-shirts and official CDs to show their loyalty. The new approach . . . removes what could crassly be called brand value from the Dead’s legacy by reducing them to one more band with products to sell. Will the logic of copyright law be more profitable, in the end, than the logic of sharing? That’s the Dead’s latest improvisational experiment.” Jon Pareles, “The Dead’s Gamble: Free Music for Sale,” /{New York Times}/, December 3, 2005. }~ +={Grateful Dead+1} + +While the Grateful Dead may be an outlier case, it exemplifies the sharing ethic that the Internet is facilitating: the formation of communities of amateurs that flourish by sharing and celebrating music. Artists can make some money through CD sales, but much more through performances, merchandising, endorsements, and sales to films, television, and advertisers. If established singers and bands are reluctant to make a transition to this new business model, hungry newcomers are not. + +The Mountain Goats, an indie rock group, authorized the Internet Archive to host their live shows on the Web because they realized the videos seed market demand for their music. The group’s front man, John Darnielle, said, “I am totally in favor of tape trading, and file sharing never did anything wrong by me. People got into The Mountain Goats after downloading my stuff.”~{ Creative Commons blog, “Musicians Large and Small on Internet Downloading,” by Matt Haughey, July 26, 2004. }~ In 2001, two newcomers working out of a basement produced a cover version of Tears for Fears’ “Mad World,” which two years later went to the top of the British pop charts.~{ http://news.bbc.co.uk/l/hi/entertainment/3352667.stm. }~ In a world where amateur creativity can easily migrate to the commercial mainstream, tagging works with a NonCommercial CC license is a valuable option. By requiring uses that fall outside the scope of the license to pay as usual, it can help artists get visibility while retaining their potential to earn money. A larger restructuring of the music industry, alas, will take longer to achieve. +={Darnielle, John;Mountain Goats} + +2~ Music as Remix +={Creative Commons (CC) licenses:music, for+18;music:remixes+18;remix works+18} + +If any segment of the music world really understands the social dynamics of musical creativity, it is hip-hop artists. As Joanna Demers documents in her book about “transformative appropriation” in music, /{Steal This Music}/, hip-hop was born as a remix genre in the 1970s and 1980s.~{ Joanna Demers, /{Steal This Music: How Intellectual Property Law Affects Musical Creativity}/ (Athens: University of Georgia Press, 2006). }~ In defiance of copyright law, which considers unauthorized borrowing as presumptively illegal, hip-hop artists used turntable scratching and digital sampling to transform existing songs into something new, which in time grew into a lucrative market segment. Hip-hop illustrates how the commons and the market need to freely interact, without undue restrictions, in order for both to flourish. It works because sampling is not a simple matter of “theft” but a mode of creativity, a way of carrying on a cultural conversation. Sampling is a way of paying tribute to musical heroes, mocking rivals, alluding to an historical moment, or simply experimenting with an arresting sound. When the rap group Run-DMC used Aerosmith’s “Walk This Way” as the basis for a remix, it was not only a salute to the group’s musical influence and a new turn of the creative wheel, it revived Aerosmith’s sagging career (or, in economist’s terms, it “created new value”). +={Demers, Joanna:Steal This Music+1;music:hip-hop+1} + +The problem, of course, is that most remix culture (and the value it creates) is illegal. By the late 1980s, in fact, the freedom of the commons that gave birth to hip-hop was coming under siege. Musicians and record labels were routinely invoking copyright law to demand permission and payments for the tiniest samples of music. Only wealthy artists could afford to clear the rights of familiar songs, and basement amateurs (who had given rise to the genre in the first place) were being marginalized. When George Clinton’s group Funkadelic succeeded in its lawsuit against the rap group N.W.A. for using a nearly inaudible sample of a three-note, two-second clip from “Get Off Your Ass and Jam” — the infamous /{Bridgeport v. Dimension Films}/ decision, in 2004 — it became clear that the commons of hip-hop music was being enclosed.~{ This story is told by Demers in Steal This Music. The court ruling is /{Bridgeport v. Dimension Films}/, 383 F. 3d 390 (6th Circ. 2004). }~ Critics like Siva Vaidhyanathan and Kembrew McLeod believe that the legal crusade against sampling has significantly harmed the creative vitality of hip-hop. Something is clearly amiss when the one of the most critically acclaimed albums of 2005 — /{The Grey Album}/, a remix collection by DJ Danger Mouse — cannot be legally released. /{The Grey Album}/ artfully combined music from the Beatles’s /{White Album}/ with lyrics from Jay-Z’s /{Black Album}/, resulting in “the most popular album in rock history that virtually no one paid for,” according to /{Entertainment Weekly}/.~{ DJ Danger Mouse’s remix received considerable press attention. A good overview is by Chuck Klosterman, “The DJ Auteur,” /{New York Times Magazine}/, June 18, 2006, pp. 40–45. }~ +={Bridgeport v. Dimension Films;Clinton, George;Funkadelic;McLeod, Kembrew;Vaidhyanathan, Siva;DJ Danger Mouse} + +The impetus for a solution to the sampling problem started with Negativland, an irreverent “sound collage” band known as much for its zany culture jamming as for its anticopyright manifestos. (One of its CDs includes a polemical booklet about fair use along with a whoopee cushion with a © symbol printed on it.) Negativland gained notoriety in the 1990s for its protracted legal battle with the band U2 and Island Records over Negativland’s release of a parody song called “U2.” Island Records claimed it was an infringement of copyright and trademark law, among other things. Negativland claimed that no one should be able to own the letter U and the numeral 2, and cited the fair use doctrine as protecting its song and title. The case was eventually settled.~{ See Negativland’s book, /{Fair Use: The Story of the Letter U and the Numeral 2}/ (Concord, CA: Seeland, 1995). }~ +={Negativland+1} + +As an experienced sampler of music, Negativland and collagist People Like Us (aka Vicki Bennett) asked Creative Commons if it would develop and offer a music sampling license. Don Joyce of Negativland explained: +={Joyce, Don} + +_1 This would be legally acknowledging the now obvious state of modern audio/visual creativity in which quoting, sampling, direct referencing, copying and collaging have become a major part of modern inspiration. [A sampling option would] stop legally suppressing it and start culturally encouraging it — because it’s here to stay. That’s our idea for encouraging a more democratic media for all of us, from corporations to the individual.~{ Glenn Otis Brown, “Mmm . . . Free Samples (Innovation la),” Creative Commons blog, March 11, 2003, at http://creativecommons.org/weblog/entry/3631. }~ + +With legal help from Cooley Godward Kronish and Wilson, Sonsini, Goodrich & Rosati, Creative Commons did just that. During its consultations with the remix community, Creative Commons learned that Gilberto Gil, the renowned /{tropicalismo}/ musician and at the time the Brazilian minister of culture, had been thinking along similar lines, and so it received valuable suggestions and support from him. +={Cooley Godward Kronish;Wilson, Sonsini, Goodrich & Rosati;Gil, Gilberto} + +In 2005, Creative Commons issued the Sampling license as a way to let people take pieces of a work for any purpose except advertising.~{ Creative Commons Web site, at http://creativecommons.org/about/sampling. See also Ethan Smith, “Can Copyright Be Saved?” /{Wall Street Journal}/, October 20, 2003. }~ It also prohibited copying and distribution of the entire work.~[* A “Sampling Plus” license was also issued to allow noncommercial copying and distribution of an entire work, which means it could be distributed via file-sharing networks. Finally, a “NonCommercial Sampling Plus” license was devised to let people sample and transform pieces of a work, and copy and distribute the entire work, so long as it was for noncommercial purposes.]~ For example, an artist could take a snippet of music, a clip of film, or a piece of a photograph, and use the sample in a new creation. Since its release, the Sampling license has been criticized on philosophical grounds by some commoners who say it does not truly enhance people’s freedom because it prohibits copying and distribution of the entire work. This concern reached serious enough proportions that in 2007 Creative Commons “retired” the license; I’ll revisit this controversy in chapter 9. + +The CC Sampling license only whetted the imagination of people who wanted to find new ways to sample, share, and transform music. Neeru Paharia, then the assistant director of the Creative Commons, came up with the idea of developing ccMixter, a software platform for remixing music on the Web.~{ See http://wiki.creativecommons.org/ccMixter. Interview with Mike Linksvayer, February 7, 2007, and Neeru Paharia, April 13, 2007. }~ Paharia realized one day that “this whole remixing and sharing ecology is about getting feedback on who’s using your work and how it’s evolving. That’s almost half the pleasure.”~{ Interview with Neeru Paharia, April 13, 2007. }~ So the organization developed a Web site that would allow people to upload music that could be sampled and remixed. The site has about five thousand registered users, which is not terribly large, but it is an enthusiastic and active community of remix artists that acts as a great proof of concept while promoting the CC licenses. There are other, much larger remix sites on the Internet, such as Sony’s ACIDplanet, but such sites are faux commons. They retain ownership in the sounds and remixes that users make, and no derivative or commercial versions are allowed. +={Paharia, Neeru} + +One feature of viral spirals is their propensity to call forth a jumble of new projects and unexpected partners. The CC licenses have done just that for music. ccMixter has joined with Opsound to offer a joint “sound pool” of clips licensed under an Attribution ShareAlike license. It also supports Freesound, a repository of more than twenty thousand CC-licensed samples ranging from waterfalls to crickets to music.~{ Neeru Paharia, “Opsound’s Sal Randolph,” Creative Commons blog, October 1, 2005, at http://creativecommons.org/audio/opsound; Mike Linksvayer, “Freesound,” Creative Commons blog, October 1, 2005, at http://creativecommons.org/audio/freesound; Matt Haughey, “Free Online Music Booms as SoundClick Offers Creative Commons Licenses,” Creative Commons blog, August 11, 2004. }~ + +Runoff Records, Inc., a record label, discovered a remix artist who teaches physics and calculus and goes by the name of Minus Kelvin. Runoff heard a podcast of Kelvin’s CC-licensed music, and signed him up, along with another ccMixter contributor, to do music for three seasons of the television show /{America’s Next Top Model}/.~{ Neeru Paharia, “Minus Kelvin Discovered on ccMixter,” Creative Commons blog, May 17, 2005, at http://creativecommons.org/weblog/archive/2005/5. }~ A few months later, two ccMixter fans based in Poland and Holland started an online record label, DiSfish, that gives 5 percent of all sale proceeds to CC, another 5 percent to charity, with the remainder split between the label and the artist. All music on the label is licensed under CC.~{ Cezary Ostrowski from Poland and Marco Raaphorst from Holland met online at ccMixter and decided to go into business together. They started an online label called DiSfish. }~ + +The CC licenses are not just the province of daring remix artists and other experimentalists. Disappointed by its CD sales through traditional channels, the Philharmonia Baroque Orchestra released its performance of Handel’s 1736 opera, /{Atalanta}/, exclusively through the online record label Magnatune, using a CC license. Conductor Nicholas McGegan said the Internet “has potentially given the industry a tremendous shot in the arm,” letting orchestras reach “new audiences, including ones that are unlikely to hear you in person.”~{ Mia Garlick, “Classical Music Goes Digital (& CC),” May 3, 2006, at http://creativecommons.org/weblog/entry/5883. }~ A company that specializes in Catalan music collaborated with the Catalonian government to release two CDs full of CC-licensed music.~{ The Enderrock Group, a company that specializes in Catalan music and publishes three popular music magazines, released the two CDs, /{Música Lliure and Música Lliure II}/, free within the page of its magazines. See Margot Kaminski, “Enderrock,” Creative Commons Web site, January 17, 2007, at http://creativecommons.org/audio/enderrock. }~ A group of Gamelan musicians from central Java who perform in North Carolina decided to release their recordings under a CC license.~{ The group, Gamelan Nyai Saraswait, was blogged about by Matt Haughey on February 1, 2003, at http://creativecommons.org/weblog/entry/3599. }~ +={McGegan, Nicholas} + +Big-name artists have gotten into the licenses as well. DJ Vadim created a splash when he released all the original solo, individual instrumental, and a cappella studio tracks of his album /{The Sound Catcher}/ under an Attribution, NonCommercial license, so that remixers could have at it.~{ Victor Stone, “DJ Vadim Releases Album Tracks Under CC,” August 20, 2007, at http://creativecommons.org/weblog/entry/7619. }~ In 2004, /{Wired}/ magazine released a CD with sixteen tracks by the likes of David Byrne, Gilberto Gil, and the Beastie Boys. “By contributing a track to /{The Wired CD}/., these musicians acknowledge that for an art form to thrive, it needs to be open, fluid and alive,” wrote /{Wired}/. “These artists — and soon, perhaps, many more like them — would rather have people share their work than steal it.”~{ Thomas Goetz, “Sample the Future,” /{Wired}/, November 2004, pp. 181–83. }~ +={Byrne, David;Gil, Gilberto+1;DJ Vadim;Beastie Boys} + +Soon thereafter, Byrne and Gil went so far as to host a gala benefit concert for Creative Commons in New York City. In a fitting fusion of styles, Gil sang a Brazilian arrangement of Cole Porter’s cowboy song, “Don’t Fence Me In.” The crowd of 1,500 was high on the transcultural symbolism, said Glenn Brown: “Musical superstars from North and South, jamming together, building earlier works into new creations, in real time. Lawyers on the sidelines and in the audience, where they belong. The big Creative Commons logo smiling overhead.”~{ Glenn Otis Brown, “WIRED Concert and CD: A Study in Collaboration,” September 24, 2004, available at http://creativecommons.org/weblog/entry/4415. }~ The description captures the CC enterprise to a fault: the fusion of some clap-your-hands populism and hardheaded legal tools, inflected with an idealistic call to action to build a better world. +={Brown, Glenn Otis;Porter, Cole} + +By 2008 the power of open networks had persuaded the major record labels to abandon digital rights management of music CDs, and more major artists were beginning to venture forth with their own direct distribution plans, bypassing the standard record label deals. Prince, Madonna, and others found it more lucrative to run their own business affairs and deal with concert venues and merchandisers. In a major experiment that suggests a new business model for major music acts, Nine Inch Nails released its album /{Ghosts I-IV}/ under a Creative Commons NonCommercial ShareAlike license, and posted audio files of the album on its official Web site, inviting free downloads. It did not do advertising or promotion. Despite the free distribution — or because of it — the group made money by selling 2,500 copies of an “Ultra-Deluxe Limited Edition” of the album for $300; the edition sold out in less than three days. There were also nonlimited sales of a “deluxe edition” for $75 and a $10 CD. The scheme showed how free access to the music can be used to drive sales for something that remains scarce, such as a “special edition” CD or a live performance. One week after the album’s release, the Nine Inch Nails’ Web site reported that the group had made over $1.6 million from over 750,000 purchase and download transactions. Considering that an artist generally makes only $1.60 on the sale of a $15.99 CD, Nine Inch Nails made a great deal more money from a “free” album distribution than it otherwise would have made through a standard record deal.~{ See, e.g., Wikipedia entry, “Ghosts I-IV,” at http://en.wikipedia.org/wiki/Ghosts_I-IV. }~ +={Nine Inch Nails} + +It is too early to know if Lessig’s “BMI strategy” will in fact catalyze a structural transformation in the entertainment industries. But Lessig apparently feels that it is the only feasible strategy. As he said in a 2006 speech, intensified hacking to break systems of proprietary control will not work; new campaigns to win progressive legislation won’t succeed within the next twenty years; and litigation is “a long-term losing strategy,” as the /{Eldred}/ case demonstrated. For Lessig and much of the free culture community, the long-term project of building one’s own open, commons-friendly infrastructure is the only enduring solution. +={BMI (Broadcast Music, Inc.);Eldred v. Reno/Eldred v. Ashcroft:effects of;Lessig, Lawrence:Eldred v. Reno, and|music, and+1} + +In the music industry, the early signs seem to support this approach. When digital guru Don Tapscott surveyed the events of 2006, he concluded that “the losers built digital music stores and the winners built vibrant communities based on music. The losers built walled gardens while the winners built public squares. The losers were busy guarding their intellectual property while the winners were busy getting everyone’s attention.” In a penetrating analysis in 2007, music industry blogger Gerd Leonhard wrote: “In music, it’s always been about interaction, about sharing, about engaging — not Sell-Sell-Sell right from the start. Stop the sharing and you kill the music business — it’s that simple. When the fan/user/listener stops engaging with the music, it’s all over.”~{ Gerd Leonhard, “Open Letter to the Independent Music Industry: Music 2.0 and the Future of Music,” July 1, 2007, at http://www.gerdleonhard.net/2007/07/gerd-leonhards.html. }~ +={Leonhard, Gerd;Tapscott, Don} + +Serious change is in the air when the producer/consumer dichotomy is no longer the only paradigm, and a vast network of ordinary people and talented creators are becoming active participants in making their own culture. They are sharing and co-creating. Markets are no longer so separate from social communities; indeed, the two are blurring into each other. Although we may live in a complicated interregnum between Centralized Media and distributed media, the future is likely to favor those creators and businesses who build on open platforms. As Dan Hunter and F. Gregory Lastowka write: “It is clear that two parallel spheres of information production exist today. One is a traditional, copyright-based and profit-driven model that is struggling with technological change. The second is a newly enabled, decentralized amateur production sphere, in which individual authors or small groups freely release their work.”~{ Dan Hunter and F. Gregory Lastowka, “Amateur-to-Amateur,” /{William and Mary Law Review}/ 46, no. 951 (December 2004), pp. 1029–30. }~ +={Hunter, Dan+1;Lastowka, F. Gregory} + +Hunter and Lastowka liken copyright law today to the Roman Empire in decline: “It is meaningless to ask whether the unitary might of imperial Rome was preferable to the distributed, messy agglomeration of tribes and states that eventually emerged after Rome fell. It was not better, just different.” That is certainly a debatable conclusion, depending upon one’s cultural tastes and sense of history. But the Rome metaphor does capture the fragmentation and democratization of creativity that is now under way. And that, in fact, is something of the point of the CC licenses: to make access and use of culture more open and egalitarian. For all his commitment to law and the CC licenses, Lessig ultimately throws his lot in with social practice: “Remember, it’s the /{activity}/ that the licenses make possible that matters, not the licenses themselves. The point is to change the existing discourse by growing a new discourse.”~{ Interview with Lawrence Lessig, September 14, 2006. }~ +={copyright law:decline of;Creative Commons (CC) licenses:social practice, and;Lessig, Lawrence:CC licenses, and} + +1~ 7 THE MACHINE AND THE MOVEMENT +={Creative Commons (CC):social movement, as+10} + +/{An infrastructure of code gives rise to a movement for free culture.}/ + +When the CC licenses were first launched, many regarded them as a boring legal license that may or may not really matter. The real surprise was how the CC licenses became a focal object for organizing a movement. As more users began to adopt the licenses in 2003 and 2004, they ceased being just a set of legal permissions and became a cool social brand. The CC licenses and logo became symbols of resistance against the highly controlled, heavily marketed, Big Brother worldview that Hollywood and the record industry seem to embody. The CC licenses offered a way to talk about one’s legal and creative rights in the Internet age, and to cite to a positive alternative — the sharing economy. With no paid advertising to speak of, the CC logo came to symbolize an ethic and identity, one that stood for artistic integrity, democratic transparency, and innovation. + +Glenn Otis Brown recalls how people spontaneously took up the license to express their anger at the media establishment and their yearning for a more wholesome alternative: “If you’re frustrated with the way the world works now, frustrated with the way the media is becoming more democratized but all these laws aren’t really facilitating that,” said Brown, “you can just cast a little virtual vote for a different sort of copyright system by putting the ‘Some Rights Reserved’ tag on your Web page. But also, practically, you can help create pools of content that people can work with and make it so much easier to participate.” Without really planning it, the Creative Commons became much more than a system of free licenses for sharing. It became a symbol for a movement. Communities of social practice began to organize themselves around the CC project. +={Brown, Glenn Otis:CC licensing, and+3;Creative Commons (CC) licenses:social practice, and} + +“Inside of the organization, we always talked about how we really had /{two}/ organizations,” said Brown. “One was Creative Commons, the /{movement}/; and one was Creative Commons, the /{machine}/.”~{ Interview with Glenn Otis Brown, June 9, 2006. }~ The machine was about meeting utilitarian needs through licenses and software; the movement was about motivating people and transforming culture. Just as the GPL had given rise to the free software community and a hacker political philosophy (which in turn inspired the Creative Commons’s organizers), so the CC licenses were spontaneously igniting different pockets of the culture: Web designers, bloggers, musicians, book authors, videographers, filmmakers, and amateurs of all stripes. The viral spiral was proceeding apace. +={Brown, Glenn Otis:CC as movement and “machine,”, and+3;Creative Commons (CC):growth of+3|“machine”, as+3;General Public License (GPL)free software, and+1;hackers:political philosophy} + +The tension between the machine and the movement has been an animating force in the evolution of the Creative Commons. “You want to have something that’s actually useful to people,” said Brown, “but you also have to get people excited about it, and build up your constituency.”~{ Ibid. }~ Some CC initiatives have had strong symbolic resonances but little practical value, while other initiatives were quite useful but not very sexy. For example, embedding CC metadata into software applications and Web services is complicated and technical — but highly effective in extending the practices of free culture. On the other hand, the Creative Commons’s release of specialty licenses for music sampling, developing nations, and a CC version of the General Public License for software (as discussed below) were discretionary moves of some utility that were probably more important as gestures of solidarity to allies. + +This has been a recurrent motif for the organization — pragmatic, improvisational outreach to distinct constituencies as part of a larger attempt to build a movement. There has always been a corresponding pull, however, “not to put ‘the machine’ at risk by incorporating the new licenses into every last one of our software tools,” said Brown. The integrity of “the machine” ultimately needs to be respected. + +Even as the machine was getting built, Lessig was taking steps to stoke up a movement. In 2004, Lessig published his third book in five years, /{Free Culture}/. The book described, as the subtitle put it, “how big media uses technology and the law to lock down culture and control creativity.” Lessig’s earlier books, /{Code}/ and /{The Future of Ideas}/, had critiqued the alarming trends in copyright law, explained the importance of the commons, and set forth a philosophical rationale for what became the CC licenses. Now /{Free Culture}/ provided a wide-ranging survey of how incumbent industries with old business models — for recorded music, film, broadcasting, cable television — were (and are) curbing traditional creative freedoms and technological innovations. Drawing explicitly on the ideas of freedom developed by Richard Stallman in the 1980s, and upon legal history, politics, and colorful stories, Lessig argued that industry protectionism poses a profound harm to creators, business, and democratic culture — and that action needed to be taken. +={Lessig, Lawrence:Free Culture+2;Lessig, Lawrence:Code and Other Laws of Cyberspace|The Future of Ideas|CC licenses, and|law in contemporary context, and;Stallman, Richard:influence of|freedom, and} + +Although /{Free Culture}/ repeats many of the fundamental arguments made in his earlier books, Lessig’s arguments this time did not sound like a law professor’s or academic’s, but more like an activist trying to rally a social movement. “This movement must begin in the streets,” he writes. “It must recruit a significant number of parents, teachers, librarians, creators, authors, musicians, filmmakers, scientists — all to tell their story in their own words, and to tell their neighbors why this battle is so important. . . . We will not reclaim a free culture by individual action alone. It will take important reforms of laws. We have a long way to go before the politicians will listen to these ideas and implement these reforms. But that also means that we have time to build awareness around the changes that we need.”~{ Lawrence Lessig, /{Free Culture}/ (New York: Penguin, 2004), pp. 275, 287. }~ The preeminent challenge for this would-be movement, Lessig wrote, is “rebuilding freedoms previously presumed” and “rebuilding free culture.” + +Lessig had reason to think that his analysis and exhortations would find receptive ears. He was now a leading voice on copyright and Internet issues, and well known through his earlier books, public speaking, and /{Eldred}/ advocacy. The launch of the Creative Commons was thrusting him into the spotlight again. Adoption of the CC licenses was steadily growing in 2003 and 2004 based on the most comprehensive sources at the time, search engines. Yahoo was reporting in September 2004 that there were 4.7 million links to CC licenses on the Web. This number shot up to 14 million only six months later, and by August 2005 it had grown to 53 million.~{ CC license statistics, on CC wiki page, at http://wiki.creativecommons.org/License_statistics. }~ These numbers offer only a crude estimate of actual license usage, but they nonetheless indicated a consistent trend. Usage was also being propelled by new types of Web 2.0 sites featuring usergenerated content. For example, Flickr, the photo-sharing site, had 4.1 million photos tagged with CC licenses at the end of 2004, a number that has soared to an estimated 75 million by 2008. +={Lessig, Lawrence:CC licenses, and;Yahoo;Web 2.0:CC licenses, and;Creative Commons (CC) licenses:Web 2.0 environment, and} + +The decisive choice, four years earlier, to build a suite of licenses that could propagate themselves via open networks was bearing fruit. + +2~ Building the CC Machine +={Creative Commons (CC):“machine”, as+22} + +It was a pleasant surprise for the organization to learn that a great deal of individual usage of the CC licenses was fairly spontaneous. Persuading large companies and respected institutions to use the CC licenses was a more difficult proposition. Lessig therefore spent a fair amount of time trying to get prominent institutions to adopt the licenses and give them some validation. Among the early converts were MIT, Rice University, Stanford Law School, and Sun Microsystems, supplemented by some relatively new organizations such as Brewster Kahle’s Internet Archive and the Public Library of Science, a publisher of open-access journals. + +Personal diplomacy can accomplish only so much, however, and in any case the Internet itself needed to be leveraged to disseminate the licenses and educate the public. One challenge, for example, was to introduce the CC licenses — which are not, after all, a self-evident need for most people — in a clear, compelling way. Most authors and artists have little idea what licenses they may want to choose, and their implications for how they might be able to sell or share works in the future. People needed a quick and easy way to make intelligent choices. It fell to Lisa Rein, the first technical director at CC, in late 2001, to develop a license-generating interface for the Web site. The quandary she faced was how to maximize user choice in selecting licenses while minimizing complexity. +={Rein, Lisa} + +The Web interface for the licenses has steadily improved over the years, but in a sense, those improvements have been offset by a growing complexity and number of CC licenses. Some critics have complained that the whole CC scheme can be a bit daunting. Yes, the licenses can ensure certain freedoms without your having to hire an attorney, which is clearly an improvement over relying on the fair use doctrine. But that does not mean that anyone can immediately understand the implications of using a NonCommercial or ShareAlike license for a given work. Any lurker on a CC listserv soon encounters head-scratching questions like “Can I use a BY-NC photo from Flickr on my blog if the blog is hosted by a company whose terms of service require me to grant them a worldwide, nonexclusive license to use any work hosted by their service, including for commercial use?” +={Creative Commons (CC) licenses:complexity of|fair use, and;fair use doctrine:CC licenses, and} + +By far the more important vehicle for promoting usage of the CC licenses has been software code. Lessig and the CC team realized that if the licenses could become an embedded element of leading search engines, Web publishing tools, and Web 2.0 platforms, it could powerfully promote license use. Integrating the code into existing Web sites and software can pose some serious technical challenges, however. Figuring out how to integrate the CC licenses with popular software applications, Web services, and digital file formats has fallen chiefly to Nathan Yergler, the chief technology officer of Creative Commons. Over the years, he and other CC developers have come up with a variety of applications to help make software infrastructures more friendly. One program that was developed, ccHost, is a content management system that has licensing and remix tracking built into its core. JsWidget is a simple javascript widget that developers can easily integrate into their sites to enable users to choose a license without leaving the site. Creative Commons has made it a standard practice to coordinate its work with technology volunteers, startup companies, and nonprofits with a stake in digitally enabling open licensing. It does this work through a CC development wiki, the cc-devel mailing list, Internet Relay Chat, World Wide Web Consortium working groups, and participation in Google’s annual “Summer of Code” program for student programmers. +={code:CC licenses, and+7;Creative Commons (CC) licenses:software code, and+7|Web 2.0 environment, and;Web 2.0:CC licenses, and;Google;software:CC licenses, and+7} + +Lessig and top CC staff have worked hard at convincing executives at major software enterprises to incorporate the CC licenses into a software application or Web site. One early triumph came when the makers of Movable Type, a blogging platform, agreed to make it easy for users to tack a CC license onto their blogs. Two months later, the O’Reilly empire of software blogs adopted the CC licenses. Then programmer Dave Winer embedded the licenses in his new Web log software in 2003. Blogs may not be core infrastructure for the Internet, but they are plentiful and popular, and have given Creative Commons enormous visibility and a high adoption curve. +={Lessig, Lawrence:CC licenses, and+6;O’Reilly, Tim;blogging;Winer, Dave} + +It had always been Lessig’s ambition that the major search engines would be reengineered to help people find CC-tagged content. To help prove that it could be done, Creative Commons built its own jerry-rigged search engine that retrieved content tagged with CC metadata. Lessig and Brown, meanwhile, made numerous diplomatic overtures to Google and Yahoo executives and software engineers. After two years of off-and-on conversations, both search engine companies agreed in 2005 to incorporate changes into their advanced searches so that users could locate CC-licensed content. (The Google advanced search does not use the Creative Commons name, but simply asks users if they want content that is “free to use or share,” among other options.) The search engine exposure was a serious breakthrough for Creative Commons’s visibility and legitimacy. +={Brown, Glenn Otis+2;Google;Yahoo} + +After a few years, the CC licenses were integrated into a number of other software platforms. It became possible to search for CClicensed images (Flickr), video programs (blip.tv), music (Owl), and old Web content (Internet Archive, SpinXpress). With these search tools, Internet users had a practical way to locate blues tunes that could be remixed, photos of the Eiffel Tower that could be modified and sold, and articles about flower arrangements that could be legally republished. Advertisers, publishers, and other companies could search for images, songs, and text that could be licensed for commercial use. + +Lessig and Brown worked hard to get other major Web and software companies to make it easy for users to tag content with CC licenses. The ultimate goal was to make it easy for users to automate their preferences. Joi Ito, a Japanese venture capitalist and democratic reformer who became the chair of the Creative Commons’s board of directors in 2006, put it this way: “Every input device that you have, whether it’s a camera phone, a digital camera or PowerPoint software, should allow you to automatically set it to the CC license that you want. And the minute you take that picture, you’ve already expressed how you would want that picture to be used.” +={Ito, Joichi} + +Creative Commons also urged open-source software communities to incorporate CC-made software into their applications so that users can more easily tag content with the licenses or find licensed works. Firefox, for example, has integrated a Creative Commons search function into the drop-down menu of its browser search interface. It also has a plug-in module called MozCC that scans for any CC metadata as you browse Web pages, and then reports on the browser status bar how content is licensed. CC licenses have been integrated into other software as well, such as Songbird, a free software media player, and Inkscape, a free vector-graphics program similar to Adobe Illustrator. +={open source software:CC licenses, and+2} + +Application by application, Web site by Web site, the Creative Commons board and staff have tried to insinuate the licenses into as many software applications and Web services as they could, in a kind of behind-the-scenes enactment of Lessig’s book /{Code}/. If code is law, then let’s write it ourselves! The diffusion of the licenses has tended to occur through personal connections of Lessig, CC board members, and friendly tech entrepreneurs and programmers. Joi Ito used his contacts at Sony to persuade it to develop a video remix Web site in Japan that uses CC licenses as the default choice. For Sony, the licenses help the company avoid any whiff of legal impropriety because users must stipulate whether their video remixes may be shared or not. +={code:as law;law:code as;Lessig, Lawrence:Code and Other Laws of Cyberspace;Ito, Joichi} + +In 2006, Microsoft went so far as to come out with a plug-in module for its Word program, enabling writers to tag their text documents with CC licenses. At the time, many CC fans grumbled at the hypocrisy of Microsoft, the five-hundred-pound gorilla of proprietary software, embracing the Creative Commons, even in such a modest way. But for Lessig and CC board members, any business that chooses to advance the reach of free culture — in this case, by accessing the 400 million users of Microsoft Office — is welcomed. While this ecumenical tolerance has made the Creative Commons a big-tent movement with an eclectic assortment of players, it has also provoked bitter complaints in free software and Wikipedia circles that the Creative Commons promotes a fuzzy, incoherent vision of “freedom” in the digital world (an issue to which I return in chapter 9). +={Microsoft:CC licenses, and} + +One vexing problem that CC developers confronted was how to digitally tag stand-alone files as CC-licensed work if they are not on the Web. How could one tag an MP3 file, for example, to show that the music is under a CC license? One problem with just inserting a CC tag onto the MP3 file is that anyone could fraudulently mark the file as CC-licensed. To prevent scams, Neeru Paharia, then CC assistant director, and other developers came up with a solution that requires any stand-alone digital files that are embedded with CC licenses to include a URL (Uniform Resource Locator) that links to a Web page verifying the assertions made on the file. +={Paharia, Neeru} + +The practice of embedding CC license information on digital files has been called /{digital rights expression}/ — a kind of benign analogue to digital rights management. The purpose is to embed information about the copyright status of a work /{in}/ the digital file. Unlike DRM, the goal is not to try to build an infrastructure for enforcing those rights or controlling how people may use a work. “Instead of using technology to ensure that the consumer can’t do anything with it,” said Mike Linksvayer, CC vice president and former chief technology officer, “we’re trying to use technology to ensure that people can find a CC-licensed work. If they’re looking, for instance, for music that can remixed, then this information will help a search engine locate that information.”~{ Interview with Mike Linksvayer, February 7, 2007. }~ +={Linksvayer, Mike;digital rights expression;digital rights management (DRM)} + +Perhaps the neatest self-promotional trick that the Creative Commons has devised is to rely upon companies whose very business plans revolve around CC licenses. We will examine “open business” enterprises in chapter 10, but for now it is worth noting that a number of innovative companies use the licenses as a core element of their business strategy. These enterprises include Flickr (photo sharing), Magnatune (an online record label), Jamendo (a Luxembourg-based music site), and Revver (a video-sharing site that shares advertising revenues with creators). + +Infrastructure grows old and occasionally needs to be updated and improved. The CC licenses have been no exception. As users have incorporated them into one medium after another, the unwitting omissions and infelicitous legal language of some parts of the licenses needed revisiting. After many months of discussions with many parts of the CC world, the Creative Commons issued a new set of 2.0 licenses in May 2004.~{ Glenn Otis Brown, “Announcing (and explaining) our new 2.0 licenses,” CC blog, May 25, 2004, at http://creativecommons.org/weblog/entry/4216. }~ They did not differ substantially from the original ones, and in fact the changes would probably bore most nonlawyers. For example, version 2.0 included a provision that allows a licensor to require licensees to provide a link back to the licensor’s work. The 2.0 licenses also clarify many complicated license options affecting music rights, and make clear that licensors make no warranties of title, merchantability, or fitness for use. Perhaps the biggest change in version 2.0 was the elimination of the choice of Attribution licenses. Since nearly 98 percent of all licensors chose Attribution, the Creative Commons decided to drop licenses without the Attribution requirement, thereby reducing the number of CC licenses from eleven to six. +={Creative Commons (CC) licenses:version 2.0 of} + +Another set of major revisions to the licenses was taken up for discussion in 2006, and agreed upon in February 2007.~{ 7. Mia Garlick, “Version 3.0 Launched,” CC blog, http://creativecommons.org/weblog/entry/7249. }~ Once again, the layperson would care little for the debates leading to the changes, but considerable, sometimes heated discussion went into the revisions. In general, the 3.0 tweaks sought to make the licenses clearer, more useful, and more enforceable. The issue of “moral rights” under copyright law — an issue in many European countries — is explicitly addressed, as are the complications of the CC licenses and collecting societies. New legal language was introduced to ensure that people who remix works under other licenses, such as the GNU Free Documentation License (FDL), would be able to also use CC-licensed materials in the same work — an important provision for preventing free culture from devolving into “autistic islands” of legally incomptabile material. Besides helping align the CC world with Wikipedia (which uses the GNU FDL license), the 3.0 revisions also made harmonizing legal changes to take account of MIT and the Debian software development community. +={GNU Project:GNU FDL;copyright law:moral rights, and;Creative Commons (CC) licenses:version 3.0 of} + +By getting the CC licenses integrated into so many types of software and Web services, and even leveraging market players to embrace the sharing ethic, Creative Commons has managed to kill at least three birds with one stone. It has enlarged the universe of shareable Internet content. It has educated people to consider how copyright law affects them personally. And it has given visibility to its larger vision of free culture. +={copyright law:CC licenses, and;Creative Commons (CC) licenses:copyright law, and;Internet:communication system, as+1;;Creative Commons (CC):growth of+2} + +In one sense, the CC “machine” composed of the licenses, the CC-developed software, and the CC-friendly protocol was the engine for change. In another sense, the influence that Creative Commons has acquired derives from the social communities that gradually began to use its infrastructure. The social practice infused power into the “machine” even as the machine expanded the social practice. A virtuous cycle took hold, as the CC community used its self-devised legal and technological infrastructure to advance their shared cultural agenda. +={Creative Commons (CC):influence of} + +Driving this cycle was an ever-growing staff and new managers working out of offices in downtown San Francisco. Although Lessig has been the chief executive officer and chairman of the board of Creative Commons for most of its existence, most day-to-day operating responsibilities fell to executive director Glenn Otis Brown until his departure in 2005, and then to general counsel Mia Garlick, who left in 2007. (Both took jobs at Google.) Key executives at Creative Commons in 2008 included Mike Linksvayer, vice president; Eric Steuer, creative director; Diane Peters, general counsel; Nathan Yergler, chief technology officer; and Jennifer Yip, operations manager. The annual budget, which was $750,000 in 2003, had grown to $3.6 million in 2008 (a sum that included the Science Commons project). Much of this funding came from foundations such as the John D. and Catherine T. MacArthur Foundation, the William and Flora Hewlett Foundation, the Rockefeller Foundation, and Omidyar Network. +={Linksvayer, Mike;Brown, Glenn Otis:executive director, as;Peters, Diane;Steuer, Eric;Yergler, Nathan;Yip, Jennifer;John D. and Catherine T. MacArthur Foundation;Garlick, Mia;Lessig, Lawrence:CC licenses, and+2;Creative Commons (CC):funding of;Omidyar Network;Rockefeller Foundation;William and Flora Hewlett Foundation} + +Once the CC machine had secured its footing, Lessig and the CC staff paid close attention to the movement — the social communities that find utility and meaning through Creative Commons— and to developing new software and projects that these early adopters would welcome. In 2006, the organization hit upon the idea of hosting a series of “salons” in major cities. The gatherings have become a big success, and are now replicated in cities throughout the world. Artists talk about how they use CC licenses; entrepreneurs explain how their business models work; remix artists perform their work. The events, free and open to the public, combine testimonials about free culture, personal networking, entrepreneurial idea-mongering, live performances, and partying. The CC crowd seems to enjoy partying; they do it well. Every December, there are gala anniversary parties in groovy San Francisco hot spots. There have been virtual parties in the immersive online world, Second Life. Because CC users tend to include some of the most adventurous artistic talent and eclectic innovators around — people who know where the truly cool night spots are — CC parties tend to be lively, good times. The parties in Rio and Dubrovnik, at the iCommons Summits, were memorable international happenings, for example — occasions, as one self-styled Lothario boasted to me, “where a guy could dance with a woman from every continent of the world in a single evening.” +={Creative Commons (CC):social movement, as+2|CC Salons} + +Add to the mix tech-oriented college students, another key sector of free culture activism, and there is even more youthful energy. Hundreds of college students participate in a nationwide student organization, FreeCulture.org, later renamed Students for Free Culture. The group got its start in 2004 when some students at Swarthmore College began investigating the reliability of Diebold electronic voting machines; the company invoked copyright law in an attempt to keep the problems secret, leading to a public confrontation that Diebold lost. Nelson Pavlosky and Luke Smith, who were also inspired by Lessig’s advocacy, co-founded the group, which has since spawned over thirty quasi-autonomous chapters on campuses across the United States and a few foreign nations. The organization tries to be a grassroots force on Internet, digital technology, and copyright issues. It has mounted protests against CDs with digital rights management, for example, and hosted film remixing contests and exhibits of CC-licensed art at NYU and Harvard. Students for Free Culture also organized a “no-profit record company/recording collective,” the Antenna Alliance, which gave bands free recording space and distributed their CC-licensed music to college radio stations. +={Pavlosky, Nelson;Smith, Luke;Students for Free Culture} + +We have looked at the machine and many parts of the movement, but not at one of the most significant forces fueling Creative Commons — the dozens of national projects to adapt the licenses to legal systems around the world. The long-term reverberations of this movement — which includes activists in Brazil, Croatia, South Africa, Egypt, Peru, Scotland, and dozens of other countries — are only beginning to be felt. + +2~ 8 FREE CULTURE GOES GLOBAL +={Creative Commons International+79} + +/{The commoners mount a transnational mobilization to build their own digital commons.}/ + +It is a measure of Lessig’s ambition for Creative Commons that only five months after the release of the licenses, in April 2003, he instigated a move to take the idea global. Glenn Brown remembers objecting, “I don’t know how we’re going to get this done! Larry was like, ‘We have no other choice. We /{have}/ to do this. This needs to be an international organization.’”~{ Interview with Glenn Otis Brown, June 9, 2006. }~ +={Boyle, James:CC International, and+1;Lessig, Lawrence:CC International, and+1} + +Professor James Boyle, a board member, was aghast. “That’s the stupidest thing I’ve ever heard,” he said upon hearing the idea. “I was practically foaming at the mouth,” he recalled, noting that it was “just insane” to try to adapt the licenses to the mind-boggling complexities of copyright laws in scores of nations.~{ Interview with James Boyle, August 15, 2006. }~ But Lessig, determined to make the Creative Commons an international project, proceeded to hire Christiane Asschenfeldt (now Christiane Henckel von Donnersmarck), a Berlin-based copyright lawyer whom he had met the previous summer at an iLaw (Internet Law) conference in Cambridge, Massachusetts. He charged her with helping project leaders in different countries adapt the licenses (or, in computerese, “port” them) to their respective national legal codes. +={Asschenfeldt, Christiane+1;copyright law:international} + +Asschenfeldt set about inventing a system for gathering teams of volunteers, usually associated with a law school or technology institute, to become CC affiliates. Once an affiliate institution and project lead are chosen, the project lead produces a first draft of the licenses, which then undergoes public discussion, rewriting, and a final review by the new international arm of Creative Commons, CC International.~{ The procedures for porting a CC license to another jurisdiction are outlined in a document, “Welcome to Creative Commons International,” undated, at http://wiki.creativecommons.org/Worldwide_Overview. }~ (Confusingly, this project was originally called “iCommons,” a name that in 2006 was reassigned to a new CC spinoff group that convenes the international free culture movement.) +={free culture:international} + +In a pre-Internet context, the whole idea of a creating a new international license architecture and network of legal experts might seem ridiculously unrealistic. But by 2003 there were enough examples of “distributed intelligence” popping up that it no longer seemed so crazy to think that a passionate corps of dispersed volunteers could collaborate as catalysts for change. In any case, following the /{Eldred}/ defeat, Lessig and Brown came to believe, as discussed earlier, that the Creative Commons needed to be both a machine and a movement. +={Brown, Glenn Otis:CC as movement and “machine,”, and;Creative Commons (CC):“machine”, as|social movement, as;Eldred v. Reno/Eldred v. Ashcroft:effects of;Lessig, Lawrence:Eldred v. Reno, and;Lessig, Lawrence:CC International, and+1} + +Going international with the licenses offered an appealing way to grow both simultaneously without forcing unpleasant trade-offs between the two, at least initially. Drafting the licenses for a country, for example, helps convene top lawyers committed to the idea of legal sharing and collaboration while also mobilizing diverse constituencies who are the potential leaders of a movement. + +According to Jonathan Zittrain, an early collaborator on the project and a board member, Creative Commons at the international level is more of a “persuasive, communicative enterprise than a legal licensing one.”~{ Interview with Jonathan Zittrain, September 28, 2006. }~ It is a vehicle for starting a process for engaging public-spirited lawyers, law scholars, and all manner of creators. The licenses do have specific legal meanings in their respective legal jurisdictions, of course, or are believed to have legal application. (Only three courts, in the Netherlands and Spain, have ever ruled on the legal status of the CC licenses. In two instances the courts enforced the licenses; in the other case, in which the defendant lost, the validity of the licenses was not at issue.)~{ The most famous court case involving the CC licenses is /{A. Curry v. Audax/Weekend}/, in which Adam Curry sued the publishers of a Dutch tabloid magazine and two senior editors for using four photos of his family on his Flickr account that had been licensed under a BY-NC-SA license. See http://creativecommons.org/weblog/entry/5944 and http://creativecommons.org/weblog/entry/5823. A District Court of Amsterdam upheld Curry’s usage of the CC licenses in a March 9, 2006, decision; see http://mirrors.creativecommons.org/judgements/Curry-Audax-English.pdf. There have been two Spanish cases involving CC licenses. In both cases, a collecting society, the Sociedad General de Autores y Editores (SGAE), sued cafés for playing “free music” licensed under CC licenses; SGAE claimed that it was owed royalties for the public performance of music because artists cannot legally apply a CC license to their work (or even release it online) without the consent of their collecting society. In both instances, the cases turned on evidentiary issues, not on the enforceability of CC licenses. See http://creativecommons.org/weblog/entry/5830 and http://creativecommons.org/weblog/entry/7228. }~ Apart from their legal meaning, the licenses’ most important function may be as a social signaling device. They let people announce, “I participate in and celebrate the sharing economy.” The internationalization of the CC licenses has also been a way of “localizing” the free culture movement. +={Zittrain, Jonathan} + +The first nation to port the CC licenses was Japan. This was partly an outgrowth of a five-month sabbatical that Lessig had spent in Tokyo, from late 2002 through early 2003. There were already stirrings of dissatisfaction with copyright law in Japan. Koichiro Hayashi, a professor who had once worked for the telecom giant NTT, had once proposed a so-called d-mark system to allow copyright owners to forfeit the statutory term of copyright protection and voluntarily declare a shorter term for their works. In the spring of 2003, a team of Japanese lawyers associated with a technology research institute, the Global Communications Center (GLOCOM), working with CC International in Berlin, set about porting the licenses to Japanese law. +={Creative Commons International:Japan+2;Global Communications Center (GLOCOM);Hayashi, Koichiro} + +Yuko Noguchi, a former Lessig student and lawyer who later became the legal project lead, explained that the CC licenses are a culturally attractive way for Japanese to address the structural problems of copyright law. Japan is a country that prizes harmony and dislikes confrontation. The licenses offer a way to promote legal sharing without forcing bitter public policy conflicts with major content industries.~{ Interview with Yuko Noguchi, September 12, 2007. }~ (Partly for such reasons, CC Japan shifted its affiliation to the University of Tokyo in 2006.) In a culture that enjoys the sharing of comics, animation, haiku, and other works, the CC Japan licenses, launched in January 2004, have been used by a diverse range of artists and companies. +={Noguchi, Yuko} + +During his sojourn in Japan, Lessig had a fateful meeting with Joichi Ito, who in many ways embodies the tech sophistication, democratic zeal, and cosmopolitan style of the international Creative Commons movement. Widely known as Joi (pronounced “Joey”), Ito, forty-two, was born in Japan and educated in the United States. Disaffected with formal education in the U.S., where he studied computer science and physics, he dropped out and began his highly unusual career in Japan as an activist, entrepreneur, and venture capitalist. He has worked as a nightclub disc jockey, and brought industrial music and the rave scene to Japan, but he has also become a talented venture capitalist and early stage investor in such companies as Six Apart, Technorati, Flickr, SocialText, Dopplr, and Rupture. Lessig and Ito became close friends; Ito later joined the Creative Commons board. He was appointed chairman of the board in 2007 and then, in 2008, he became chief executive officer when Lessig left to start a congressional reform project. Duke law professor James Boyle, a board member, replaced Ito as chairman. +={Ito, Joichi+1;Boyle, James:as chairman} + +Once it went public, the very idea of Creative Commons attracted many other people like Ito to its ranks: educated, tech-savvy, culturally fluent, activist-minded. In fact, following the American launch of Creative Commons, volunteers from many countries began to approach the organization, asking if they could port the licenses to their own legal systems. Finland became the second nation to adopt the licenses, in May 2004, followed a month later by Germany. In Europe, the early adopters included Denmark, Hungary, Scotland, Slovenia, Sweden, and Malta. In South America, CC licenses were introduced in Argentina, Chile, and Peru. In Asia, Malaysia and China ported the licenses, as did Australia. Israel was the first Middle Eastern country to port the licenses. + +As each jurisdiction introduces its licenses, it typically hosts a gala public event to celebrate and publicize free culture. News media and government officials are invited. There are panel discussions about copyright law and digital culture; performances by musicians who use the licenses; and endorsements by prominent universities, cultural institutions, and authors. Lessig has made it a practice to fly in and deliver an inspirational speech. Few international launches of CC licenses have been more spectacular or consequential than the one staged by Brazil in March 2004. +={Lessig, Lawrence:public speaker, as|CC International, and} + +2~ Brazil, the First Free Culture Nation +={Brazil:free culture in+23;Creative Commons International:Brazil+23} + +Luiz Inácio Lula da Silva had just been elected president of Brazil, and he was eager to stake out a new set of development policies to allow his nation to plot its own economic and cultural future. His government, reflecting his electoral mandate, resented the coercive effects of international copyright law and patent law. To tackle some of these issues on the copyright front, President Lula appointed Gilberto Gil, the renowned singer-songwriter, as his minister of culture. +={Lula da Silva, Luiz Inácio;Gil, Gilberto+11} + +Gil became a revered cultural figure when he helped launch a new musical style, /{tropicalismo}/, in the late 1960s, giving Brazil a fresh, international cachet. The music blended national styles of music with pop culture and was inflected with political and moral themes. As one commentator put it, /{tropicalismo}/ was “a very ’60s attempt to capture the chaotic, swirling feel of Brazil’s perennially uneven modernization, its jumble of wealth and poverty, of rural and urban, of local and global. . . . They cut and pasted styles with an abandon that, amid today’s sample-happy music scene, sounds up-to-theminute.”~{ Wikipedia entry, “Tropicalismo,” at http://en.wikipedia.org/wiki/Tropicalismo. }~ The military dictatorship then running the government considered /{tropicalismo}/ sufficiently threatening that it imprisoned Gil for several months before forcing him into exile, in London. Gil continued writing and recording music, however, and eventually returned to Brazil.~{ For a history of Gil, see his personal Web site at http://www.gilbertogil.com.br/index.php?language=en; the Wikipedia entry on him at http://en.wikipedia.org/wiki/Gilberto_Gil; and Larry Rohter, “Gilberto Gil Hears the Future, Some Rights Reserved,” /{New York Times}/, March 11, 2007. }~ + +This history matters, because when Gil was appointed culture minister, he brought with him a rare political sophistication and public veneration. His moral stature and joyous humanity allowed him to transcend politics as conventionally practiced. “Gil wears shoulder-length dreadlocks and is apt to show up at his ministerial offices dressed in the simple white linens that identify him as a follower of the Afro-Brazilian religion /{candomblé}/,” wrote American journalist Julian Dibbell in 2004. “Slouching in and out of the elegant Barcelona chairs that furnish his office, taking the occasional sip from a cup of pinkish herbal tea, he looks — and talks — less like an elder statesman than the posthippie, multiculturalist, Taoist intellectual he is.”~{ Julian Dibbell, “We Pledge Allegiance to the Penguin,” /{Wired}/, November 2004, at http://www.wired.com/wired/archive/12.11/linux_pr.html. }~ +={Dibbell, Julian+1} + +As luck had it, Dibbell — author of the article on cyber-rape that had enticed Lessig to investigate digital culture in the first place (see chapter 3) — was living in Rio at the time. He was friendly with Hermano Vianna, a prominent intellectual who knew Gil and was deeply into the music scene and digital technology. Between Dibbell and Vianna, a flurry of introductions was made, and within months Larry Lessig, John Perry Barlow, and Harvard law professor William Fisher were sitting with Gil, Vianna, and Dibbell in Gil’s Rio de Janeiro penthouse across from the beach.~{ Ibid. }~ Lessig’s mission was to pitch the Creative Commons licenses to Gil, and in particular, get Gil’s thoughts about a new CC Sampling license that would let musicians authorize sampling of their songs. +={Fisher, William (Terry);Vianna, Hermano+1;Lessig, Lawrence:CC International, and+3;Barlow, John Perry:CC International, and} + +“Gil knew that sampling was a central driving power for contemporary creativity well before digital instruments came along,” recalled Vianna. "/{Tropicalismo}/ was all about sampling different ideas and different cultures. /{Tropicalismo}/ was about juxtapositions, not fusions, and in this sense was heir to a long tradition of Brazilian modern thought and art that began with the cultural anthropology of the early modernists, in the 1920s and 1930s, and can be traced back to all debates about Brazilian identity in the 20th century."~{ E-mail from Hermano Vianna, January 8, 2007. }~ + +Lessig did not need to argue his case. Gil immediately understood what Creative Commons was trying to accomplish culturally and politically. He was enthusiastic about CC licenses, the proposed Sampling license, and the prospect of using his ministry to advance a vision of free culture. + +By further coincidence, Ronaldo Lemos da Silva, then a Brazilian law student who has been described as a “Lessig of the Southern Hemisphere,” had just completed his studies at Harvard Law School. He was well acquainted with Creative Commons and was considering his future when friends at the Fundação Getulio Vargas (FGV), a Rio de Janeiro university, urged him to join them in founding a new law school. The school would host a new Center for Technology and Society to study law and technology from the perspective of developing nations like Brazil. Lemos accepted, and the center soon became the host for CC Brazil and myriad free culture projects. +={Lemos da Silva, Ronaldo} + +This alignment of intellectual firepower, artistic authority, and political clout was extraordinary — and a major coup for Creative Commons. The culture minister of the world’s fifth-largest country and tenth-largest economy — whose own forty-year career was based on a remix sensibility — became a spirited champion of the CC licenses and free culture. Unlike most culture ministers, who treat culture chiefly as an aesthetic amenity, Gil took the economic and technological bases of creativity seriously. He wanted to show how creativity can be a tool for political and cultural emancipation, and how government can foster that goal. It turned out that Brazil, with its mix of African, Portuguese, and indigenous cultures and its colorful mix of vernacular traditions, was a perfect laboratory for such experimentation. + +One of the first collaborations between Creative Commons and the Brazilian government involved the release of a special CC-GPL license in December 2003.~{ Creative Commons press release, “Brazilian Government First to Adopt New ‘CC-GPL,’ ” December 2, 2003. }~ This license adapted the General Public License for software by translating it into Portuguese and putting it into the CC’s customary “three layers” — a plain-language version, a lawyers’ version compatible with the national copyright law, and a machine-readable metadata expression of the license. The CC-GPL license, released in conjunction with the Free Software Foundation, was an important international event because it gave the imprimatur of a major world government to free software and the social ethic of sharing and reuse. Brazil has since become a champion of GNU/Linux and free software in government agencies and the judiciary. It regards free software and open standards as part of a larger fight for a “development agenda” at the World Intellectual Property Organization and the World Trade Organization. In a related vein, Brazil has famously challenged patent and trade policies that made HIV/AIDS drugs prohibitively expensive for thousands of sick Brazilians. +={free software:international licensing, and+1;GNU/Linux:Brazil, in;World Trade Organization;World Intellectual Property Organization;open networks:international} + +When the full set of CC Brazil licenses was finally launched— at the Fifth International Free Software Forum, in Port Alegre on June 4, 2004 — it was a major national event. Brazilian celebrities, government officials, and an enthusiastic crowd of nearly two thousand people showed up. Gil, flying in from a cabinet meeting in Brasília, arrived late. When he walked into the auditorium, the panel discussion under way immediately stopped, and there was a spontaneous standing ovation.~{ A ten-minute video of the CC Brazil opening can be seen at http://support.creativecommons.org/videos#brasil. }~ “It was like a boxer entering the arena for a heavyweight match,” recalled Glenn Otis Brown. “He had security guards on both sides of him as he walked up the middle aisle. There were flashbulbs, and admirers trailing him, and this wave of people in the audience cresting as he walked by.”~{ Interview with Glenn Otis Brown, August 10, 2006. }~ +={Brown, Glenn Otis, CC International, and+1} + +Gil originally planned to release three of his songs under the new CC Sampling license — dubbed the “Recombo” license — but his record label, Warner Bros., balked. He eventually released one song, “Oslodum,” that he had recorded for an indie label. “One way to think about it,” said Brown, “is that now, anybody in the world can jam with Gilberto Gil.”~{ Film about CC Brazil launch, at http://support.creativecommons.org/videos#brasil. }~ + +As culture minister, Gil released all materials from his agency under a CC license, and persuaded the Ministry of Education as well as Radiobrás, the government media agency, to do the same. He also initiated the Cultural Points (Pontos de Cultura) program, which has given small grants to scores of community centers in poor neighborhoods so that residents can learn how to produce their own music and video works. Since industry concentration and payola make it virtually impossible for newcomers to get radio play and commercially distribute their CDs, according to many observers, the project has been valuable in allowing a fresh wave of grassroots music to “go public” and reach new audiences. + +For developing countries, the real challenge is finding ways to tap the latent creativity of the “informal” economy operating on the periphery of formal market systems. Brazil is rich with such creative communities, as exemplified by the flourishing /{tecnobrega}/ music scene in the northeast and north regions of Brazil. Ronaldo Lemos says that /{tecnobrega}/ — “a romantic sound with a techno-beat and electronica sound”~{ Interview with Ronaldo Lemos da Silva, September 15, 2006. }~ —arose on the fringes of the mainstream music marketplace through “sound system parties” attended by thousands of people every weekend. Local artists produce and sell about four hundred new CDs every year, but both the production and distribution take place outside the traditional music industry. The CDs can’t be found in retail stores but are sold entirely by street vendors for only $1.50. The CDs serve as advertising for the weekend parties. The music is “born free” in the sense that the /{tecnobrega}/ scene doesn’t consider copyrights as part of its business model and does not enforce copyrights on their CDs; it invites and authorizes people to share and reuse the content.~{ The /{tecnobrega}/ scene is described by Ronaldo Lemos in “From Legal Commons to Social Commons: Developing Countries and the Cultural Industry in the 21st Century,” http://icommons.org/banco/from-legal-commons-tosocial-commons-brazil-and-the-cultural-industry-1. }~ (The /{tecnobrega}/ business model is discussed at greater length in chapter 10.) +={Lemos da Silva, Ronaldo+6} + +Lemos believes the CC licenses are an important tool for helping grassroots creativity in Brazil to “go legitimate.” He explains, “Creative Commons provides a simple, non-bureaucratic structure for intellectual property that might help to integrate the massive marginal culture that is arising in the peripheries, with the ‘official,’ ‘formal’ structures of the Brazilian economy.”~{ Ibid. }~ Freed of the blockbuster imperatives of the current music market, the CC licenses allow creativity in the informal “social commons” to flow — yet not be appropriated by commercial vendors. People can experiment, generate new works, and learn what resonates with music fans. All of this is a predicate for building new types of open markets, says Lemos. /{Tecnobrega}/ is just one of many open-business models that use the free circulation of music to make money. + +Since its launch in June 2004, Lemos and the CC Brazil office have instigated a number of projects to demonstrate how sharing and collaboration can spur economic and cultural development. They have promoted free software and open business models for music and film and started collaborations with allies in other developing nations. Nigerian filmmakers inspired the People’s Cinema in Brazil, a project to help people use audio-video technology to produce their own films and develop audiences for them. The /{culture-livre}/ (free culture) project, a joint effort of Creative Commons in Brazil and South Africa, is using the ccMixter software to encourage young musicians to mix traditional African instruments with contemporary sensibilities, and launch their careers.~{ http://www.ccmixter.co.za. }~ + +In Brazil, there are open-publishing projects for scientific journals;~{ http://www.scielo.br. }~ a Web site that brings together a repository of short films;~{ http://www.portacurtas.comb.br. }~ and Overmundo,a popular site for cultural commentary by Internet users.~{ http://www.overmundo.com.br }~ TramaVirtual, an open-platform record label that lets musicians upload their music and fans download it for free, now features more than thirty-five thousand artists.~{ http://tramavirtual.uol.com.br. }~ (By contrast, the largest commercial label in Brazil, Sony-BMG, released only twelve CDs of Brazilian music in 2006, according to Lemos.) + +“Cultural production is becoming increasingly disconnected from traditional media forms,” said Lemos, because mass media institutions “are failing to provide the adequate incentives for culture to be produced and circulated. . . . Cultural production is migrating to civil society and/or the peripheries, which more or less already operate in a ‘social commons’ environment, and do not depend on intellectual property within their business models.”~{ Ronaldo Lemos, “From Legal Commons to Social Commons: Developing Countries and the Cultural Industry in the 21st Century,” http://icommons.org/banco/from-legal-commons-to-social-commons-brazil-and-the-culturalindustry-1. }~ + +As more people have adopted legal modes of copying and sharing under CC licenses, it is changing the social and political climate for copyright reform. Now that CC Brazil can cite all sorts of successful free culture ventures, it can more persuasively advocate for a Brazilian version of the fair use doctrine and press for greater photocopying privileges in educational settings (which are legally quite restrictive). +={free culture:international+2} + +Although the CC licenses are now familiar to many Brazilians, they have encountered some resistance, mostly from lawyers. “Among all other audiences — musicians, artists, writers — they were extremely well received,” said Lemos. When he presented the CC licenses to an audience of three hundred lawyers, however, he recalls that a famous law professor publicly scoffed: “You’re saying this because you’re young, foolish, and communist.” Three years later, Lemos discovered that the professor was using his intellectual property textbook in her class. + +As a unique global ambassador of creative sharing, Gilberto Gil did a lot to take the CC licenses to other nations and international forums such as the World Intellectual Property Organization. The day before his 2004 benefit concert for the Creative Commons in New York City with David Byrne, Gil delivered a powerful speech explaining the political implications of free culture: +={Byrne, David;Gil, Gilberto+3;World Intellectual Property Organization} + +_1 A global movement has risen up in affirmation of digital culture. This movement bears the banners of free software and digital inclusion, as well as the banner of the endless expansion of the circulation of information and creation, and it is the perfect model for a Latin-American developmental cultural policy (other developments are possible) of the most anti-xenophobic, anti-authoritarian, anti-bureaucratizing, anti-centralizing, and for the very reason, profoundly democratic and transformative sort.~{ Gil remarks at New York University, September 19, 2004, at http://www.nyu.edu/fas/NewsEvents/Events/Minister_Gil_speech.pdf. }~ + +The Brazilian government was making digital culture “one of its strategic public policies,” Gil said, because “the most important political battle that is being fought today in the technological, economic, social and cultural fields has to do with free software and with the method digital freedom has put in place for the production of shared knowledge. This battle may even signify a change in subjectivity, with critical consequences for the very concept of civilization we shall be using in the near future.”~{ Ibid. }~ + +To advance this new paradigm, Gil, who left his post as culture minister in 2008, called for the rise of “new creative /{mestizo}/ [hybrid] industries” that break with the entrenched habits of the past. Such businesses “have to be flexible and dynamic; they have to be negotiated and re-negotiated, so that they may contemplate the richness, the complexity, the dynamism and the speed of reality itself and of society itself, without becoming impositions.”~{ Ibid. }~ + +2~ National Variations of a Global Idea + +When it comes to free culture, Brazil is clearly a special case. But citizens in more than seventy nations have stepped forward to build a CC presence in their societies. Each has shown its own distinctive interests. + +Tomislav Medak, a philosopher by training and a copyfighter by circumstance, runs the Multimedia Institute in Zagreb, Croatia, a cultural center that consists mostly of a performance space, a lounge, and a café. The organization survives on donations from the likes of George Soros’s Open Society Institute, but it thrives because it is the gathering place for an avant-garde corps of electronic musicmakers, publishers, performers, and hackers. Mainstream Croats would probably describe the community as a bunch of “cyberSerbian-gay-Communists,” said Medak, which he concedes is not inaccurate.~{ Interview with Tomislav Medak, CC Croatia, June 25, 2006. }~ But the institute is not just a coalition of minority interests; it is also broad-spectrum champion of cultural freedom. It sees free software, civil liberties, and artists’ rights as core elements of a democratic society that it would like to build. +={Creative Commons International:Croatia+1;Croatia:CC licenses in+1;Medak, Tomislav+2;Open Society Institute;Soros, George} + +The Multimedia Institute was understandably excited when it learned about Creative Commons and Lessig’s vision of free culture. With help from some lawyer friends, the institute in January 2004 ported the CC licenses to Croatian law, primarily as a way to empower artists and counteract the dominance of corporate media and expansive copyright laws. “We are a country where the IP framework is very young, and most of the policies are protection-driven. Most policies are dictated by official institutions that just translate international documents into local legislation,” Medak said.~{ Ibid. }~ This commercial/copyright regime tends to stifle the interests of emerging artists, amateurs, consumers and local culture. +={Lessig, Lawrence:CC International, and} + +“In the post-socialist period,” said Medak, “our society has been hugely depleted of the public domain, or commons. The privatization process and the colonizing of cultural spaces have been blatant over the last couple of years, especially in Zagreb. So the Creative Commons has fit into a larger effort to try to recapture some of those public needs that were available, at least ideologically, in socialist societies. Now they are for real.”~{ Ibid. }~ Medak has since gone on to become a leader of iCommons and the host of the international iCommons Summit in 2007, which brought several hundred commoners from fifty nations to Dubrovnik. + +In Scotland, government and other public-sector institutions have been huge fans of the CC licenses. In fact, museums, archives, and educational repositories have been the primary advocates of the CC Scotland licenses, says Andrés Guadamuz, a law professor at the Research Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh. “People who want to try to share information in the public sector are turning to Creative Commons because they realize that here is a license that is already made.”~{ Interview with Andrés Guadamuz of CC Scotland, December 19, 2006. }~ +={Guadamuz, Andrés;Scotland:CC licenses in;Creative Commons International:Scotland} + +The BBC was a pioneer in making its archived television and radio programs available to the public for free. In 2003, inspired by the CC licenses, the BBC drafted its own “Creative Archive” license as a way to open up its vast collection of taxpayer-financed television and radio programs.~{ See http://news.bbc.co.uk/2/hi/help/4527506.stm, and interview with Paula Le Dieu, joint director of the BBC Creative Archive project, May 28, 2004, at http://digital-lifestyles.info/2004/05/28/exclusive-providing-the-fuel-fora-creative-nation-an-interview-with-paula-le-dieu-joint-director-on-the-bbccreative-archive. }~ The license was later adopted by Channel 4, the Open University, the British Film Institute, and the Museum, Libraries and Archives Council. Although the Creative Archive license has similar goals as the CC licenses, it contains several significant differences: it restricts use of video programs to United Kingdom citizens only, and it prohibits use of materials for political or charitable campaigns and for any derogatory purposes. +={BBC} + +The CC licenses have proven useful, also, to the British Museum and National Archives. In 2004, these and other British educational institutions were pondering how they should make their publicly funded digital resources available for reuse. A special government panel, the Common Information Environment, recommended usage of the CC licenses because they were already international in scope. The panel liked that the licenses allow Web links in licensed materials, which could help users avoid the complications of formal registration. The panel also cited the virtues of “human readable deeds” and machine-readable metadata.~{ Intrallect Ltd and AHRC Research Centre for Studies in Intellectual Property and Technology Law, University of Edinburgh, “The Common Information Environment and Creative Commons,” October 10, 2005, at http://www.intrallect.com/index.php/intrallect/content/download/632/2631/file/CIE _CC_Final_Report.pdf. }~ + +As it happened, a team of Scottish legal scholars led by a private attorney, Jonathan Mitchell, successfully ported the licenses and released them a few months later, in December 2005. The Scottish effort had been initiated a year earlier when Mitchell and his colleagues objected that the U.K. CC licenses then being drafted were too rooted in English law and not sufficiently attuned to Scottish law. Since the introduction of the CC Scotland licenses, publicsector institutions have enthusiastically embraced them. Museums use the licenses on MP3 files that contain audio tours, for example, as well as on Web pages, exhibition materials, and photographs of artworks. Interestingly, in England and Wales, individual artists and creative communities seem to be more active than public-sector institutions in using the licenses. +={Scotland:CC licenses in;Creative Commons International:Scotland;Mitchell, Jonathan} + +The use of CC licenses for government information and publicly funded materials is inspiring similar efforts in other countries. Governments are coming to realize that they are one of the primary stewards of intellectual property, and that the wide dissemination of their work — statistics, research, reports, legislation, judicial decisions — can stimulate economic innovation, scientific progress, education, and cultural development. Unfortunately, as Anne Fitzgerald, Brian Fitzgerald, and Jessica Coates of Australia have pointed out, “putting all such material into the public domain runs the risk that material which is essentially a public and national asset will be appropriated by the private sector, without any benefit to either the government or the taxpayers.”~{ iCommons annual report, 2007, http://www.icommons.org/annual07. }~ For example, the private sector may incorporate the public-domain material into a value-added proprietary model and find other means to take the information private. The classic instance of this is West Publishing’s dominance in the republishing of U.S. federal court decisions. Open-content licenses offer a solution by ensuring that taxpayerfinanced works will be available to and benefit the general public. +={Coates, Jessica;Fitzgerald, Anne;Fitzgerald, Brian;West Publishing} + +In the United States, the National Institutes of Health has pursued a version of this policy by requiring that federally funded research be placed in an open-access archive or journal within twelve months of its commercial publication. The European Commission announced in 2007 that it plans to build a major open-access digital repository for publicly funded research.~{ Michael Geist, “Push for Open Access to Research, BBC News, February 28, 2007, at http://news.bbc.co.uk/go/pr/fr/~/2/hi/technology/6404429. }~ In Mexico, the Sistema Internet de la Presidencia, or Presidency Internet System (SIP), decided in 2006 to adopt CC licenses for all content generated by the Mexican presidency on the Internet — chiefly the president’s various Web sites, Internet radio station, and documents.~{ Creative Commons blog, Alex Roberts, March 8, 2006, at http://creativecommons.org/text/sip. }~ In Italy, CC Italy is exploring legislation to open up national and local government archives. It also wants new contract terms for those who develop publicly funded information so that it will automatically be available in the future.~{ Interview with Juan Carlos de Martin, CC Italy, July 17, 2007. }~ +={Creative Commons International:Italy|Mexico;Italy:CC licenses in;Mexico:CC licenses in} + +2~ Laboratories of Free Culture +={Creative Commons International:laboratories for free culture, as+7} + +In 2005, about two years after the launch of CC International, twenty-one jurisdictions around the world had adopted the licenses. (A legal jurisdiction is not necessarily the same as a nation because places like Scotland, Puerto Rico, and Catalonia — which have their own CC licenses — are not separate nations.) Under a new director of CC International, copyright attorney Catharina Maracke, who took over the license-porting project in 2006, the pace of license adoption has continued. By August 2008, fortyseven jurisdictions had ported the CC licenses, and a few dozen more had their projects under way. The CC affiliates have now reached a sufficient critical mass that they represent a new sort of international constituency for the sharing economy. The CC network of legal scholars, public institutions, artistic sectors, and Internet users is not just a motivated global community of talent, but a new sort of transnational cultural movement: a digital republic of commoners. +={Maracke, Catharina} + +To be sure, some nations have more institutional backing than others, and some have more enthusiastic and active projects than others. CC Poland reported in 2006 that its biggest challenge was “a complete lack of financial and organizational support, in particular from our partner organization.”~{ iCommons ’06 conference booklet, p. 77. }~ (This was remedied in 2008 when CC Poland entered into a partnership with an interdisciplinary center at the University of Warsaw and with a law firm.) CC affiliates in smaller developing countries with fewer resources — especially in Africa — often have to beg and scrape to pull together resources to supplement the work of volunteers. + +Not surprisingly, the American CC licenses — a version of which was spun off as a generic license, as opposed to jurisdictionspecific licenses — are the most used. In a pioneering study of license usage in January 2007, Giorgos Cheliotis of Singapore Management University and his co-authors conservatively estimated that there were 60 million distinct items of CC content on the Internet — a sum that rose to 90 million by the end of 2007. Over 80 percent of these items use a license that is not jurisdiction-specific; the remaining 20 percent are spread among the thirty-three nations included in the study.~{ Giorgos Cheliotis, Warren Chik, Ankit Guglani, and Girl Kumar Tayi, “Taking Stock of the Creative Commons Experiment: Monitoring the Use of Creative Commons Licenses and Evaluating Its Implications for the Future of Creative Commons and for Copyright Law,” paper presented at 35th Research Conference on Communication, Information and Internet Policy (TPRC), September 28–30, 2007. Paper dated August 15, 2007. }~ The highest volume of license usage per capita can be found in European nations — particularly Spain, Germany, Belgium, France, Italy, and Croatia — which were among the earliest adopters of the licenses. In absolute terms, the heaviest usage can be seen in Spain, Germany, France, South Korea, Italy, and Japan.~{ Cheliotis, “Taking Stock,” pp. 20–22. }~ Overall, however, CC usage outside of the United States is still fairly new, and usage and growth rates vary immensely from country to country. +={Cheliotis, Giorgos+1} + +As a fledgling network, the international CC community is a rudimentary platform for change. Its members are still groping toward a shared understanding of their work and devising new systems of communication and collaboration. But a great deal of cross-border collaboration is occurring. A variety of free culture advocates have constituted themselves as the Asia Commons and met in Bangkok to collaborate on issues of free software, citizen access to government information, and industry antipiracy propaganda. CC Italy has invited leaders of neighboring countries— France, Switzerland, Austria, Croatia, and Slovenia — to share their experiences and work together. A CC Latin America project started /{Scripta}/, a new Spanish-language journal based in Ecuador, to discuss free software and free culture issues affecting the continent. +={Creative Commons International:cross-border collaboration+1} + +CC leaders in Finland, France, and Australia have published books about their licensing projects.~{ The French book is Danièle Bourcier and Mélanie Dulong de Rosnay, eds., /{International Commons at the Digital Age}/ (Paris: Romillat, 2004), at http://fr.creativecommons.org/icommons_book.htm. The Finnish book is Herkko Hietanen et al., /{Community Created Content: Law, Business and Policy}/ (Turre Publishing, 2007), at http://www.turre.com/images/stories/books/webkirja_koko_optimoitu2.pdf. The Australian book is Brian Fitzgerald, /{Open Content Licensing: Cultivating the Creative Commons}/ (Sydney: Sydney University Press, 2007). }~ CC Brazil and CC South Africa have collaborated on a project about copyright and developing nations. CC Canada is working with partners to develop an online, globally searchable database of Canadian works in the Canadian public domain. CC Salons have been held in Amsterdam, Toronto, Berlin, Beijing, London, Warsaw, Seoul, Taipei, and Johannesburg. + +In the Netherlands, CC project lead Paul Keller engineered a breakthrough that may overcome the persistent objections of European collecting societies to CC-licensed content. Collecting societies in Europe generally insist that any musician that they represent transfer all of their copyrights to the collective. This means that professional musicians cannot distribute their works under a CC license. Artists who are already using CC licenses cannot join the collecting societies in order to receive royalties for commercial uses of their works. In this manner, collecting societies in many European nations have effectively prevented many musicians from using the CC licenses. +={Keller, Paul;collecting societies+1:see also ASCAP} + +In 2007, however, CC Netherlands negotiated a one-year pilot program with two Dutch collecting societies, Buma and Stemra, to let artists use CC NonCommercial licenses for parts of their repertoire.~{ Creative Commons Netherlands press release, “Buma/Stemra and Creative Commons Netherlands Launch a Pilot,” August 23, 2007; e-mail by Paul Keller, CC Netherlands, to CC International listserv, August 23, 2007. }~ As a result, artists will have greater choice in the release of their works and the ability to easily manage their rights via a Web site. Other European CC affiliates hope that this Dutch experiment will break the long stalemate on this issue and persuade their collecting societies to be more flexible. + +2~ The Developing Nations License +={Creative Commons International:Developing Nations license+9} + +One of the boldest experiments in the CC world was the creation of the Developing Nations license, launched in September 2004. A year earlier, Lessig had approached James Love, the director of Knowledge Ecology International (previously the Consumer Project on Technology), to ask him to craft a CC license that might help developing countries. Love proposed that the CC offer a “rider” at the end of its existing licenses so that people using the licenses could exempt developing nations from, say, the NonCommercial or NoDerivatives license restrictions. So, for example, if a textbook author wanted to let developing nations copy her book for either commercial or noncommercial purposes, she could add a rider authorizing this practice. +={Love, James+3;Lessig, Lawrence:CC International, and} + +Love was trying to do for books and journal articles what is already possible for drugs — the legalization of a commercial market for generic equivalents. Love had seen how generic drugs could reach people only because for-profit companies were able to produce and sell the drugs; nonprofit or philanthropic distribution is just not powerful enough. But the market for generic drugs is possible only because of laws that authorize companies to make legal knockoffs of proprietary drugs once the patent terms expire. Love hoped to do the same via a Developing Nations license for copyrighted works: “It would create an opportunity for the publishing equivalent of generic drug manufacturers who make ‘generic’ books. In developing countries, you have whole libraries full of photocopied books. You would not have libraries there if people didn’t engage in these practices.”~{ Interview with James P. Love, June 13, 2006. }~ + +In the end, Creative Commons offered the Developing Nations license as a separate license, not a rider. It had simple terms: “You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work)” — and the license was valid only in non–high income nations, as determined by United Nations’ statistics. Although the release of the license got considerable press coverage, actual usage of the license was extremely small. The most prominent use was totally unexpected — for architectural designs. Architecture for Humanity, a California nonprofit, used the license for its designs of low-cost housing and health centers. The organization wanted to give away its architectural plans to poor countries while not letting its competitors in the U.S. use them for free.~{ Creative Commons blog, Kathryn Frankel, “Commoners: Architecture for Humanity,” June 30, 2006, at http://creativecommons.org/education/architecture. }~ +={United Nations} + +The expected uses of the Developing Nations license never materialized. In 2006, Love said, “The license is there, but people who might be willing to use it are not really aware of it.” He worried that the license “hasn’t really been explained in a way that would be obvious to them,” and ventured that there may be “a need for a re-marketing campaign.” By this time, however, the license had attracted the ire of Richard Stallman for its limitations on “freedom.”~{ See Lessig on Creative Commons blog, December 7, 2005, at http://creativecommons.org/weblog/archive/2005/12/page/3. }~ It prohibited copying of a work in certain circumstances (in high-income countries) even for noncommercial purposes, and so authorized only a partial grant of freedom, not a universal one. “Well, the whole point was /{not}/ to be universal,” said Love. “The license is for people that are unwilling to share with high-income countries, but are willing to share with developing countries. So it actually expands the commons, but only in developing countries.”~{ Interview with James Love, June 13, 2006. }~ +={Lessig, Lawrence:CC International, and+1;Stallman, Richard:freedom, and+2} + +The controversy that grew up around the Developing Nations license illuminates the different approaches to movement building that Lessig and Stallman represent. Lessig’s advocacy for free culture has been an exploratory journey in pragmatic idealism; Stallman’s advocacy for free software has been more of a crusade of true believers in a core philosophy. For Stallman, the principles of “freedom” are unitary and clear, and so the path forward is fairly self-evident and unassailable. For Lessig, the principles of freedom are more situational and evolving and subject to the consensus of key creative communities. The flexibility has enabled a broad-spectrum movement to emerge, but it does not have the ideological coherence of, say, the free software movement. +={Richard:free software, and;free software:international licensing, and;Lessig, Lawrence:freedom, and} + +Several factors converged to make it attractive for Creative Commons to revoke the Developing Nations license. Some people in the open-access publishing movement disliked the license because it did not comply with its stated standards of openness. In addition, Richard Stallman’s increasingly strident objections to Creative Commons licenses were starting to alarm some segments of the “free world.” What if Internet content became Balkanized through a series of incompatible licenses, and the movement were riven with sectarian strife? Stallman objected not only to the Developing Nations license, but to attempts by Creative Commons to get Wikipedia to make its content, licensed under the GNU Free Documentation license, compatible with the CC licenses. By 2007 this dispute had been simmering for four years (see pages 212–217). +={Wikipedia:CC licenses, and;Stallman, Richard:influence of} + +Finally, many CC staff members regarded the Developing Nations and Sampling licenses as misbegotten experiments. Fewer than 0.01 percent of uses of CC licenses at the time involved the Developing Nations license, and the Sampling license was used by a relatively small community of remix artists and musicians. If eliminating two little-used niche licenses could neutralize objections from the open access and free software movements and achieve a greater philosophical and political solidarity in the “free world,” many CC partisans regarded a rescission of the licenses as a modest sacrifice, if not a net gain. +={remix works+1;music:remixes;Creative Commons (CC) licenses:music, for} + +In June 2007, Creative Commons announced that it was officially retiring the two licenses.~{ Creative Commons “retired licenses page,” at http://creativecommons.org/retiredlicenses. }~ In a formal statement, Lessig explained, “These licenses do not meet the minimum standards of the Open Access movement. Because this movement is so important to the spread of science and knowledge, we no longer believe it correct to promote a standalone version of this license.”~{ Lawrence Lessig, “Retiring standalone DevNations and One Sampling License,” message to CC International listserv, June 4, 2007. }~ The Creative Commons also revoked the Sampling license because it “only permits the remix of the licensed work, not the freedom to share it.” (Two other sampling licenses that permit noncommercial sharing— SamplingPlus and NonCommercial SamplingPlus — were retained.) +={Lessig, Lawrence:CC International, and} + +Anyone could still use the Sampling or Developing Nations license if they wished; they still exist, after all. It’s just that the Creative Commons no longer supports them. While the actual impact of the license revocations was minor, it did have major symbolic and political significance in the commons world. It signaled that the Creative Commons was capitulating to objections by free software advocates and the concerns of open access publishing activists. + +2~ The iCommons Network +={iCommons+13;Creative Commons International:iCommons network+13} + +As an international network of CC affiliates grew, it naturally spawned new pockets of activism. Lessig explained: “Once a country gets launched, it becomes a cell of activism. Sometimes it is very traditional — Creative Commons Korea is made up of a bunch of federal judges — and sometimes it is very radical — Creative Commons Croatia is made of up a bunch of real activists who want to change copyright. Creative Commons Poland, too, is a bunch of really smart law graduates. But then there is the artist community, on the other side, many of whom want to blow up copyright; they just think it is ridiculous. +={Croatia:CC licenses in;Korea:CC licenses in;Creative Commons International:Croatia|Korea|Poland;Poland:CC licenses in;Lessig, Lawrence:CC International, and+1|iCommons, and+1} + +“So the opportunity and problem we faced at that point,” said Lessig, “was, ‘Well, what are we going to do with these activists?’ Because Creative Commons wanted to facilitate activism, of course, but it wasn’t as if we could bring activism into our core because it would make it more suspect.”~{ Interview with Lawrence Lessig, March 20, 2006. }~ + +The first steps toward organizing this protocommunity of activists came in March 2005, when eighty people from the various international licensing projects convened in Boston to talk about their shared challenges.~{ http://icommons.org/isummit05. }~ It quickly became clear that everyone wanted a forum in which to learn from one another, coordinate their work, and see themselves as something larger . . . perhaps a new sort of movement. +={Creative Commons (CC):social movement, as+1} + +Here again was the tension between “the movement” and “the machine.” As neutral stewards of the licenses, the CC affiliates could not become full-throated advocates of a new international free culture movement. Their mission was preserving the integrity and utility of the licenses for all users, not advocacy. To avoid this problem, the Creative Commons, with an infusion of seed money and CC leaders, in 2006 started a new nonprofit organization, iCommons. +={Creative Commons (CC):“machine”, as} + +iCommons, a registered charity in the United Kingdom, is led by Heather Ford, a South African who met Lessig at Stanford and went back to her country to evangelize the Creative Commons licenses. Working out of Johannesburg, Ford is the activist counterpart to her Berlin licensing colleagues. She is a gregarious, spirited organizer who keeps tabs on activist gambits in dozens of nations and pulls together annual iCommons “summits.” +={Ford, Heather} + +The iCommons conferences are something of a staging area for a new type of global citizenship in the digital “free world.” The first conference, in Rio de Janeiro in June 2006, attracted more than three hundred commoners from fifty nations.~{ http://icommons.org/isummit06. }~ The second one, in Dubrovnik, Croatia, drew a somewhat larger and still more diverse crowd, and a third was held in Sapporo, Japan, in 2008. The free and open-source software community and the Creative Commons network are two of the largest, most influential blocs participating in iCommons, although Wikipedians represent a growing sector. But there are many other factions. There are musicians from the indie music, netlabels, and the remix scene. Filmmakers trying to reform fair use legal norms and video artists who are into mashups. Bloggers and citizen-journalists and social-networking fans. Gamers and participants in immersive environments like Second Life and World of Warcraft. Open business entrepreneurs who regard free software and CC licenses as key elements of their competitive, profit-making strategies. +={Wikipedia:iCommons, and} + +From Japan, there were anime artists who are into remixes. From South Africa, print-on-demand research publishers. A bare-chested Brazilian guitarist traded thoughts about copyright law with a Zagreb performer. An Amsterdam hacker with a punk t-shirt shared a smoke with an American academic. From India, there was Lawrence Liang, founder of the Alternative Law Forum, a leading intellectual about copyright law and economic and social inequality. From Syria, there was Anas Tawileh, who is working to produce the Arab Commons, a directory of Arabic works released under any of the CC licenses. He hopes it will counteract “the weak representation of the Arabic language on the Internet, the shallow nature of Arabic content currently available and the consumption rather than the production of knowledge.” From the United States, there was Michael Smolens, an entrepreneur who started dotSUB, a captioning system to make any film available in any language. +={Liang, Lawrence;Tawileh, Anas;Smolens, Michael;Smolens, Michael} + +The convergence of so many players in the nascent sharing economy, assembled in the flesh, was a bracing glimpse into a new kind of cosmopolitan, democratic sensibility. The program organizers stated their aspirations this way: “How do we help one another to build a commons that nurtures local communities while respecting the needs of others? How can we move towards the growth of a ‘Global Commons Community’?”~{ iCommons Summit ’06 program. }~ + +Although most international commoners seem to be culturally progressive and politically engaged, they cannot be situated along a left-right ideological spectrum. This is because commoners tend to be more pragmatic and improvisational than ideological. They are focused on building specific projects to facilitate sharing and creativity, based on open-source principles. Their enthusiasm is for cool software, effective legal interventions, and activist innovations, not sectarian debate. + +It is not as if politics has been banished. For example, some critics have questioned the “elite” origins and governance structure of iCommons, which was hatched by CC board members and leaders. David Berry, a free culture advocate who teaches at the University of Sussex, complained on a listserv that iCommons was “creating a corporate machine rather than a democratic one.”~{ David Berry, “The iCommons Lab Report,” sent to UK FreeCulture listserv, November 9, 2006. }~ He cited ambiguity in the powers of the organization, the murky process by which the iCommons code of conduct was adopted, and the board’s selection of community council members. Still other critics have grumbled at the Creative Commons’s collaboration with Microsoft in developing a licensing feature within the Word application. +={Berry, David;Microsoft:CC licenses, and} + +When pressed at the 2006 iCommons Summit to develop more formal organizational structure, Lessig begged off for the time being, saying that “trust and faith in each other” was a better approach than rigid rules and system. “We need a recognition that we have a common purpose. Don’t tell me that I need to tell you what that is, because we’ll never agree, but we do have a common purpose.”~{ Becky Hogge, “What Moves a Movement,” OpenDemocracy.org, June 27, 2006, at www.opendemocracy.net/media-commons/movement_3686.jsp. }~ This provoked Tom Chance, a free software and free culture advocate, to complain that “Lessig’s call to base the organization on ‘trust and faith in each other’ is too idealistic and undemocratic.” +={Chance, Tom;Lessig, Lawrence:iCommons, and} + +The encounter nicely captures the quandaries of leadership and governance in the networked environment. How can the effectiveness and clarity of leadership be combined with networked participation and the legitimacy that it provides? How should an organization draw philosophical boundaries to define itself while remaining open to new ideas? How should participation in online collectives be structured to generate collective wisdom and legitimacy and avoid collective stupidity and bureaucratic paralysis? In this case, iCommons diversified its governance in late 2007. It invited the Free Software Foundation Europe, Computer Professionals for Social Responsibility, and Instituto Overmundo, a Brazilian nonprofit dedicated to cultural diversity, to join Creative Commons as full-fledged partners in managing the organization. Despite its broadened leadership, iCommons remains more of a convener of annual forums and discussion host than the democratically sanctioned voice of an international movement. + +This is not surprising. The international commons community is still a fledgling enterprise trying to forge an identity and agenda. The resources for many CC affiliates are quite modest and the bonds of cooperation remain rudimentary. That said, the international explosion of free culture projects, above and beyond the CC licenses themselves, is nothing short of remarkable. It represents a “vast, transnational mobilization in favor of digital freedom,” as Gilberto Gil put it. In the early stages of the viral spiral, no one could have imagined that a corps of passionate, self-selected volunteers cooperating through the Internet could accomplish so much. And it continues, unabated. +={Gil, Gilberto;free culture:international} + +1~ 9 THE MANY FACES OF THE COMMONS + +/{As the “free world” grows and diversifies, so does debate over how to build the commons.}/ + +As the Creative Commons insinuated itself into one creative sector after another, and throughout dozens of nations, the variety of licenses proliferated. By one count in 2006, there were once eighteen distinct CC licenses, not counting version changes.~[* The eighteen licenses once offered include the core six licenses; a nonattribution version of five of those six licenses (now retired); three sampling licenses (one of which has been retired); the Developing Nations license (now retired); and a public domain dedication (which is otherwise not possible under copyright statutes). There was also a “Music Sharing license,” which was just another name for the Attribution-NonCommercial-No Derivatives license, and a “Founders’ Copyright,” which is not a license but a contract between an author and Creative Commons to place a particular work in the public domain after fourteen years (or twenty-eight years, if the author opts for a fourteen-year extension)]~ In the meantime, other parties were offering their own licenses. While the Creative Commons licenses had become the most-used licenses on the Internet, many people were choosing to use Free Software Foundation licenses for text (the GNU Free Documentation License, or FDL), the European Art Libre license, and special licenses that various institutions have devised for the arts, music, and educational works. +={Creative Commons (CC) licenses:types of+6} + +In theory, a proliferation of licenses is not a bad thing. By the lights of free-market economics and complexity theory, in fact, the best way to identify the most useful licenses is to introduce a variety of them and then let them compete for supremacy. Let natural selection in an ecosystem of licenses cull the losers and elevate the most useful ones. + +Unfortunately, this libertarian vision of diverse licenses competing for supremacy in the cultural ecosystem can run up against a harsh reality of the Internet. Too many disparate licenses may make it /{harder}/ for people to share content in an easy, interoperable way. It is not the proliferation of licenses per se that is problematic, it is the absence of a mechanism to enable differently licensed works to “play together” so that they can commingle and be used to produce new things. If bodies of works released under a CC license cannot be combined with works licensed under other licenses, it defeats one of the key value propositions of the Internet, easy interoperability and facile sharing and reuse. Despite its best intentions, license proliferation has the effect of “fencing off the commons,” because the different license terms keep different bodies of work in separate ghettos. + +Incompatibility is a problem both within the suite of CC licenses and between CC licenses and other licenses. Within the CC suite of licenses, for example, a work licensed under the AttributionNonCommercial-ShareAlike license (BY-NC-SA) cannot legally be combined with a work licensed under the Attribution-No Derivatives license (BY-ND) or an Attribution-NonCommercial (BY-NC). The former license requires that any derivative works be licensed under the same license, period. +={Creative Commons (CC) licenses:incompatibility of+3} + +Some observers are not disturbed by the internal incompatibilities of the CC suite of licenses. They regard the different licenses as tools for various communities to build their own “subeconomies” of content, based on their own distinct needs and priorities. A scientist may not want his research articles altered or combined with other material. A musician may want to promote noncommercial usage on the Internet but retain commercial rights so that he can benefit from any CD sales. Not all creative sectors want to distribute their work in the same ways. + +The incompatibility between CC-licensed work and other freecontent licenses is arguably more problematic. At a conference in Spain in the summer of 2005, Lessig recalls having a “Homer Simpson moment” — /{D’oh!}/ — when he realized where license proliferation was heading. The incompatibility of licenses, and therefore bodies of content, could lead to an irretrievably fragmented universe of content. Lessig saw license proliferation as analogous to the Balkanization of technical standards that once plagued mainframe computing. IBM computers couldn’t communicate with DEC, which couldn’t communicate with Data General.~{ Ibid. }~ “The legal framework of the licensing world is basically a pre-Internet framework,” said Lessig in 2007. “We don’t have interoperability at the layer of legal infrastructure.”~{ Interview with Lawrence Lessig, October 23, 2007. }~ +={Lessig, Lawrence:CC licenses, and+1} + +_1 In my view [said Lessig], there’s a critical need for the free culture movement to achieve interoperability. And until it achieves interoperability, there’s a huge problem — because we’re creating these kinds of autistic islands of freedom. Basically, the stuff produced in the Wikimedia world is free, but can only be used in the Wikimedia world; the stuff created in the Creative Commons world is free, but can only be used in the Creative Commons world — and never the two will meet. That’s very destructive, because what we want is a kind of invisible platform of freedom that everybody can then build on. It’s been my objective from the very beginning to find the way to assure that we would get that platform.~{ Ibid. }~ + +A critic might call it “the revenge of choice” — the inevitable outcome of a neoliberal philosophy that privileges individualism and choice, rather than a collective concern for the commons. This is the view of Niva Elkin-Koren, a law professor at the University of Haifa (which coincidentally is the host of CC Israel). Elkin-Koren argues that the Creative Commons is replicating and reinforcing property rights discourse and failing to advance the cause of copyright reform. Because the Creative Commons is plagued by an “ideological fuzziness” that does not adequately set forth a philosophical vision of freedom or the commons, Elkin-Koren believes the CC project threatens to “spread and strengthen the proprietary regime in information.”~{ Niva Elkin-Koren, “Exploring Creative Commons: A Skeptical View of a Worthy Pursuit,” chapter XIV in Lucie Guibault and P. Bernt Hugenholtz, editors, /{The Future of the Public Domain: Identifying the Commons in Information Law}/ (Alphen aan den Rijn, Netherlands: Kluwer Law International BV, 2006). }~ +={Elkin-Koren, Niva;Creative Commons (CC) licenses:critics of+5} + +This critique was at the heart of one of the most serious internecine squabbles in the movement, the struggle to make Wikipedia content — licensed under the Free Software Foundation’s GNU Free Documentation License — compatible with CC-licensed content. The failure to find a solution, after four years of negotiation, threatened to keep two great bodies of Internet content from legally commingling and cause further fragmentation of open content. +={Wikipedia:CC licenses, and;GNU Project:GNU FDL;Free Software Foundation} + +There are other controversies. Anticapitalist leftists periodically take the Creative Commons to task for being too politically respectable. Friendly voices from underdeveloped nations of the Southern Hemisphere have raised alarms that the public domain is just another excuse for corporate exploitation of their resources. Others from the South argue that the informal, social commons inhabited by poor people — the “nonlegal commons” — deserve respect, too. And then there are copyright traditionalists, who believe that a redoubled effect to fortify the fair use doctrine should be a top priority. +={Creative Commons (CC) licenses:public domain, and;public domain:CC licenses, and} + +For the most part, the general public is oblivious to these internecine disputes. Who cares about the relative merits of using a GNU Free Documentation License for Wikipedia entries instead of a Creative Commons license? The layperson may not understand the long-term implications of vesting individual authors with the choice of how to share a work (in the style of the Creative Commons) as opposed to vesting communities of practice with those rights (in the style of the Free Software Foundation’s General Public License). Yet tech sophisticates realize that, in the context of the Internet, uninformed choices today can have serious practical consequences tomorrow. The terms of a license or the design of a software application or digital appliance can prevent people from sharing or reusing works. Bodies of content may become legally incompatible. Consumer freedoms to innovate and distribute may be limited. And then there are second-order questions that have great symbolic importance within the movement, such as, Whose vision of “freedom” in digital spaces shall we endorse? What is philosophically desirable and consistent? +={Wikipedia:CC licenses, and;free culture:sharing ethic of;Internet:future of} + +For a movement that aspires to simplify copyright law, the free culture movement has gotten embroiled in knotty debates that might give lawyers headaches. It is not easy to tell if the disputants are persnickety zealots who have spent too much time in front of their screens or latter-day Jeffersons, Madisons, and Hamiltons— brilliant thinkers who are astute enough to understand the longterm implications of some difficult issues and passionate enough to take a stand. One person’s arcana can be another person’s foundational principle, and one person’s quest for intellectual clarity is another person’s distraction from the messy challenges of building a movement. + +That is the basic problem of the crazy-quilt network that constitutes the free world. There are, in fact, so many divergent, sometimes competing, sometimes congruent agendas that it can be difficult to orchestrate them into a single, harmonious song. For better or worse, the passions that animate culture jammers, copyright reformers, hackers, law scholars, artists, scientists, and countless others in seventy-plus countries are widely divergent. Although the intramovement disagreements may sometimes seem gratuitous, sectarian, and overblown, they are, in fact, understandable. The commoners tend to see their projects as part of a larger, ennobling enterprise— the construction of a new democratic polity and cultural ecology. It makes sense to fret about the technical, legal, and philosophical details when so much is potentially at stake. + +2~ Individual Choice Versus the Commons +={commons:individual choice vs.+8} + +It turns out that overcoming license incompatibilities is not such an easy task. Any attempt to bridge differences immediately runs into mind-bending legal complexities. Crafting new licensing language can trigger philosophical disagreements, some of which may be proxies for turf issues and personal control. One of the major philosophical disagreements involves the one raised by Elkin-Koren: the merits of individual choice versus the commons. Should individuals be allowed to choose how their work may circulate in the wider world, or is such legal partitioning of culture an affront to the value proposition of the commons and its sharing ethic? Why should the choices of individual creators be privileged over the creative needs of the general culture? +={Elkin-Koren, Niva;Creative Commons (CC) licenses:incompatibility of+4} + +The question is a divisive one. The answer that you give, Yochai Benkler of Harvard Law School told me, “depends on whether you think that what you’re doing is building a political movement or whether you’re building a commons that has narrower appeal, but is potentially, more functionally unitary.”~{ Interview with Yochai Benkler, February 7, 2006. }~ A movement is about building a “big tent,” he said — a vision that accommodates many different types of people with different preferences. If you are building a movement, then you will use terminologies that are attractive to a very broad range of liberal and illiberal conceptions of choice, he said. +={Benkler, Yochai:social movements, on;Creative Commons (CC):social movement, as} + +But a commons — of the sort that Richard Stallman’s GPL enables for software code — requires that its members honor a community’s social and moral priorities. A commons does not cater to individual preferences; its first priority is to advance the shared goals and relationships of the community. A commons is not oblivious to the self-interest of individuals. It just fulfills that self-interest in a different way. A commons does not confer benefits through individual negotiations or transactions, but instead through an individual’s good-faith participation in an ongoing, collective process. There is no individual quid pro quo, in other words. A person’s contributions accrue to the collective — and benefits flow from belonging to that collective. This is not an exotic or communistic model; it more or less resembles a scientist’s relationship with his research discipline. In the style of a gift economy, a scientist’s articles and lectures are gifts to the discipline; in return, he enjoys privileged access to his colleagues and their research. +={Stallman, Richard:GPL, and;General Public License (GPL):free software, and+3;Internet:gift economy} + +It is worth noting that a commons does not necessarily preclude making money from the fruit of the commons; it’s just that any commercial activity cannot interfere with the integrity of social relationships within the commons. In the case of GPL’d software, for example, Red Hat is able to sell its own versions of GNU/Linux only because it does not “take private” any code or inhibit sharing within the commons. The source code is always available to everyone. By contrast, scientists who patent knowledge that they glean from their participation in a scientific community may be seen as “stealing” community knowledge for private gain. The quest for individual profit may also induce ethical corner-cutting, which undermines the integrity of research in the commons. +={Red Hat;GNU/Linux:Red Hat, and;code:free access to;commoners:sharing by} + +Ironically, the Creative Commons is not itself a commons, nor do its licenses necessarily produce a commons in the strict sense of the term. The licenses are /{tools}/ for creating commons. But the tools do not require the creation of a commons (unlike the GPL). In this sense, a commons of CC-licensed content may be a “lesser” type of commons because it may have restrictions on what content may be shared, and how. The choices of individual authors, not the preexisting claims of the community, are considered paramount. +={Creative Commons (CC) licenses:tools for creating commons, as+3} + +Is one type of commons superior to the others? Does one offer a superior vision of “freedom”? This philosophical issue has been a recurrent source of tension between the Free Software Foundation, the steward of the GPL, and the Creative Commons, whose licenses cater to individual choice. + +Strictly speaking, a commons essentially offers a binary choice, explained Benkler: “You’re in the commons or you’re out of the commons.” By broadening that binary choice, the CC licenses make the commons a more complicated and ambiguous enterprise. This is precisely what some critics like Stallman have found objectionable about certain CC licenses. They don’t necessarily help forge a community of shared values and commitments. Or as two British critics, David Berry and Giles Moss, have put it, the CC licenses create “commons without commonality.”~{ David Berry and Giles Moss, “On the ‘Creative Commons’: A Critique of the Commons without Commonality,” Free Software Magazine, July 15, 2005, at http://www.freesoftwaremagazine.com/articles/commons_without_commonality. }~ +={Benkler, Yochai:social movements, on;Berry, David;Moss, Giles;Stallman, Richard:criticisms by} + +Inviting authors to choose how their work may circulate can result in different types of “commons economies” that may or may not be interoperable. ShareAlike content is isolated from NoDerivatives content; NonCommercial content cannot be used for commercial purposes without explicit permission; and so on. CC-licensed works may themselves be incompatible with content licensed under other licenses, such as the GNU Free Documentation License. + +2~ Freedom, the Commons, and Movement Building +={free culture+9} + +The slightly confused layperson may ask, Why does all of this matter? The answer may depend on your commitment to the commons as a different (better?) way of creating value. Do you believe in individual freedom and choice, as conceived by contemporary liberal societies? Or do you believe in the /{different type of freedom}/ that comes through participation in a community of shared values? +={commons:individual choice vs.+8} + +Does this state the choice too starkly, as an either/or proposition? Some believe that it does. Perhaps a broader taxonomy of commons is possible. Perhaps a commons can accommodate some measure of individual choice. Or is that an oxymoron? + +These are pivotal questions. The answers point toward different visions of free culture and different strategic ideas about movement building. Is it enough to put forward a demanding, utopian ideal of the commons, and hope that it will attract a corps of true believers willing to toil away in the face of general indifference or hostility? This is essentially what Stallman has done. Or is it better to build a “coalition of the reasonable,” so that a more accessible, practical vision can gain widespread social acceptance and political traction in a relatively short period of time? This is the vision that drives Larry Lessig and his allies. +={Stallman, Richard:criticisms by|freedom, and;Lessig, Lawrence:freedom, and;free culture:differing visions of+3} + +Some critics accuse Creative Commons of betraying the full potential of the commons because its licenses empower individual authors to decide how “shareable” their works can be. The licenses do not place the needs of the general culture or the commons first, as a matter of universal policy, and some licenses restrict how a work may be used. The lamentable result, say critics like Niva Elkin-Koren, is a segmented body of culture that encourages people to think of cultural works as property. People internalize the norms, such as “This is /{my work}/ and /{I’ll}/ decide how it shall be used by others.” +={Elkin-Koren, Niva;commoners:sharing by+1;Creative Commons (CC) licenses:critics of+2} + +This can be seen in the actual choices that CC licensors tend to use. Some 67 percent of CC-licensed works do not allow commercial usage.~{ Based on Yahoo queries, June 13, 2006, at http://wiki.creativecommons.org/License_Statistics. }~ Arguments go back and forth about whether the NC restriction enhances or shrinks freedom. Many musicians and writers want to promote their works on the Internet while retaining the possibility of commercial gain, however remote; this would seem a strike for freedom. Yet critics note that the NC license is often used indiscriminately, even when commercial sales are a remote possibility. This precludes even modest commercial reuses of a work, such as reposting of content on a blog with advertising.~{ Eric Muller, “The Case for Free Use: Reasons Not to Use a Creative Commons–NC License,” at http://freedomdefined.org/Licenses/NC. }~ + +The larger point of criticism is that the Creative Commons licenses do not “draw a line in the sand” about what types of freedoms are inherent to the commons. In the interest of building a broad movement, Creative Commons does not insist upon a clear standard of freedom or prescribe how a commons should be structured. + +“While ideological diversity may be crucial for the successes of a social movement,” observed Elkin-Koren, “it may impair attempts to make creative works more accessible. The lack of a core perception of freedom in information, may lead to ideological fuzziness. This could interfere with the goal of offering a workable and sustainable alternative to copyright.”~{ Niva Elkin-Koren, “Exploring Creative Commons: A Skeptical View of a Worthy Pursuit,” chapter 14 in Lucie Guibault and P. Bernt Hugenholtz, editors, /{The Future of the Public Domain: Identifying the Commons in Information Law}/ (The Netherlands: Kluwer Law International BV, 2006), p. 326. }~ In an essay that offers “a skeptical view of a worthy pursuit,” Elkin-Koren says that the CC regime encourages narrow calculations of self-interest and the same attitudes toward property and individual transactions as the market economy; it does not promote a coherent vision of “freedom” that fortifies the commons as such. +={Elkin-Koren, Niva+2;Creative Commons (CC):social movement, as} + +“The normative message that we communicate by using Creative Commons licenses is the strategy of choice,” Elkin-Koren told me. “You’re the owner, you’re the author, and therefore, you are entitled to govern your work. . . . No one tells you that maybe it’s wrong; maybe you should allow people to use your work.” By using the CC licenses, she continued, we internalize these norms. “We are teaching ourselves and others that our works are simply commodities, and like every other commodity, everyone has to acquire a license in order to use it.”~{ Interview with Niva Elkin-Koren, January 30, 2007. }~ +={authorship:control, and} + +But champions of the Creative Commons licenses celebrate their approach as a pragmatic and effective way to break free from the stifling “all rights reserved” ethic of copyright law. Historically, of course, not much else has been successful in challenging copyright norms — which is precisely why Lessig and others find the CC strategy attractive. “If I believed that there was a different discourse that had political purchase in someplace other than tiny corners of law faculty commons rooms, I’d be willing to undertake it,” said Lessig. He concedes that his viewpoint may be affected by his living in the United States instead of Israel (where Elkin-Koren lives) but, in the end, he considers the Creative Commons as “just my judgment about what’s going to be effective.”~{ Interview with Lawrence Lessig, October 23, 2007. }~ +={Lessig, Lawrence:CC licenses, and} + +2~ The Splintering of the Free World? +={Creative Commons (CC) licenses:critics of+20} + +At one point, the philosophical disagreements between the Creative Commons and its critics did not matter so much. There was enough shared purpose and common history that everyone could agree to disagree. And since the project was still young, the stakes were not so high. But then it became clear that the CC licenses would be quite popular indeed. When the Creative Commons issued its Developing Nations and Sampling licenses in 2003, it brought Richard Stallman’s simmering dissatisfaction with the organization to a boil, threatening a serious schism. Pointing to the “four freedoms” that define the free software movement, Stallman criticized the new CC licenses as “not free” because they do not allow universal copying of a work. +={Stallman, Richard:criticisms by+2|freedom, and+2;Creative Commons (CC) licenses:popularity of;Creative Commons International:Developing Nations license} + +Stallman objected to the Sampling license because, while it allowed a remix of a licensed work, it did not allow the freedom to share it. The Developing Nations license was objectionable because its freedoms to copy are limited to people in the developing world, and do not extend to everyone. Stallman also disliked the fact that the CC tag that licensors affix to their works did not specify /{which}/ license they were using. With no clear standard of “freedom” and now a mix of licenses that included two “non-free” licenses, Stallman regarded the CC tag as meaningless and the organization itself problematic. + +“I used to support Creative Commons,” said Stallman on his blog in July 2005, “but then it adopted some additional licenses which do not give everyone that minimum freedom, and now I no longer endorse it as an activity. I agree with Mako Hill that they are taking the wrong approach by not insisting on any specific freedoms for the public.”~{ Richard Stallman, “Fireworks in Montreal,” at http://www.fsf.org/blogs/rms/entry-20050920.html. }~ + +Mako Hill is a brilliant young hacker and Stallman acolyte who wrote a 2005 essay, “Towards a Standard of Freedom: Creative Commons and the Free Software Movement,”~{ Benjamin Mako Hill, “Towards a Standard of Freedom: Creative Commons and the Free Software Movement,” /{Advogato}/, July 29, 2005, at http://www.advogato.org/article/851.html. }~ a piece that shares Elkin-Koren’s complaint about the CC’s “ideological fuzziness.” Then enrolled in a graduate program at the MIT Media Lab, Hill has written a number of essays on the philosophy and social values of free software. (When he was an undergraduate at Hampshire College, I was an outside advisor for his senior thesis and remain friends with him.) +={Elkin-Koren, Niva;Hill, Benjamin Mako+2;free culture:differing visions of+31;free software:social movement, as+31} + +In his “Freedom’s Standard” essay, Hill wrote: “[D]espite CC’s stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software’s success is built on an ethical position. CC sets no such standard.” While CC prides itself on its more open-minded “some rights reserved” standard, Hill says that a real movement for freedom must make a bolder commitment to the rights of the audience and other creators— namely, that “essential rights are unreservable.”~{ Interview with Benjamin Mako Hill, June 1, 2007. }~ + +By this, Hill means that certain essential freedoms should not be restricted by copyright law or any license. The problem with the CC licenses, argued Hill, is that they cannot commit to any "/{defined}/ spirit of sharing" (emphasis in original). This is not the way to build a transformative, sustainable movement, said Hill.~{ Ibid. See also Hill, “Freedom’s Standard Advanced?” /{Mute}/, November 23, 2005, at http://www.metamute.org/en/node/5597. }~ + +But what, then, about the choice of authors? Doesn’t that freedom count for anything? CC partisans have responded. Joi Ito, the chair of the Creative Commons, wrote in 2007, “CC is about providing choice. FSF is mostly about getting people to make /{their}/ choice. I realize it’s not THAT clear-cut, but I think the point of CC is to provide a platform for choice. . . . I realize that we are headed in the same general free culture direction and many of us debate what choices should be allowed, but I think we are more ‘tolerant’ and support more diverse views than the FSF.”~{ Joichi Ito, message on iCommons listserv, June 1, 2007. }~ +={Ito, Joichi} + +Lessig has argued many times that, just as the free software community decided for itself how its content ought to be distributed, so other artistic sectors — musicians, photographers, filmmakers, etc. — must make such decisions themselves. If they can’t have certain choices, then they will have little interest in joining a movement for free culture, said Lessig at the 23rd Chaos Communication Congress in Berlin. “We don’t have the standing to tell photographers or musicians what ‘freedom’ is.” Why should the Free Software Foundation, or any other group, be able to dictate to an artistic community how their works should circulate? +={Lessig, Lawrence:freedom, and;Free Software Foundation} + +Elkin-Koren is not so sure we can segment the world according to creative sectors and let each determine how works shall circulate. “I don’t think we can separate the different sectors, as if we work in different sectors,” she told me. “We all work in the production of information. My ideas on copyright are really affected by the art that I use and the music that I listen to. . . . Information is essential not only for creating something functional or for selling a work of art, but for our citizenship and for our ability to participate in society. So it’s not as if we can say, ‘Well, this sector can decide for themselves.’”~{ Interview with Niva Elkin-Koren, January 30, 2007. }~ +={Elkin-Koren, Niva} + +As Wikipedia began to take off in popularity, what might have been an unpleasant philosophical rift grew into a more serious fissure with potentially significant consequences. All Wikipedia content is licensed under the Free Software Foundation’s GNU Free Documentation License, or FDL,~{ Wikipedia entry on GNU Free Documentation license, at http://en.wikipedia.org/wiki/GNU_Free_Documentation_License. }~ largely because the CC licenses did not exist when Wikipedia was launched in 2001. The FDL, originally intended for the documentation manuals that explicate software applications, is essentially the same as the CC ShareAlike license (any derivative works must also be released under the same license granting the freedom to share). But using the FDL can get cumbersome, especially as more video, audio, and photos are incorporated into a text; each artifact would require that the license be posted on it. As more content is shared, the potential for misuse of the content, and lawsuits over violations of licensing agreements, would grow.~{ Michael Fitzgerald, “Copyleft Hits a Snag,” /{Technology Review}/, December 21, 2005. }~ +={Free Documentation License+10;GNU Project+10;Wikipedia:GNU FDL, and+10|CC licenses, and+10} + +Unfortunately, as a legal matter, the FDL is incompatible with the CC licenses. This means that all content on Wikipedia and its sister Wikimedia projects (Wikispecies, Wikiquote, Wikinews, among other projects) cannot legally be combined with works licensed under CC licenses. Angered by the two “non-free” CC licenses, Stallman dug in his heels and defended Wikipedia’s use of the FDL. He also made it clear that he would remain a critic of Creative Commons unless it revoked or changed its licenses to conform with the Free Software Foundation’s standards of “freedom.” +={Free Software Foundation;Stallman, Richard:criticisms by+5|Wikipedia, and+5} + +Thus began a four-year search for a resolution. Lessig recalled, “We started to think about a way that Wikimedia could migrate to a license that we would then deem as compatible to a Creative Commons license. That took two years of negotiation, basically.” One proposed solution was for Wikimedia projects to offer both licenses, the FDL and CC BY-SA, for the same work. However, it was determined that derivative works licensed under one license would still be incompatible with dual-licensed works, resulting in “project bleed” (new works would migrate away the existing corpus of works). Another approach was for a “one-way compatibility” of licenses, so that people creating works under the FDL could use CC-licensed content. +={Lessig, Lawrence:CC licenses, and+4|freedom, and+4} + +But Lessig realized that these solutions dealt only with the issue at hand; the real challenge was finding a more systemic solution. As various players engaged with the FDL/CC controversy, it grew from a licensing squabble into an intertribal confrontation. It became a symbol for everything that Stallman found politically unacceptable about the Creative Commons’s vision of freedom. + +From 2005 to 2007, the issue roiled many factions within the free culture/free software communities. The debate and invective flew back and forth in various venues, and there were proposals, negotiations, and political maneuvers. MIT computer scientist (and CC board member) Hal Abelson rejoined the FSF board. Lessig and other CC staff entered into talks with the FSF general counsel, Eben Moglen. Wikipedia co-founder Jimmy Wales joined the Creative Commons board. Yet Stallman continued to resist, and the Wikimedia board would not approve any proposed solutions. +={Abelson, Hal:CC board, on|Free Software Foundation, and;Moglen, Eben;Wales, Jimmy} + +The stalemate was broken in June 4, 2007, when Lessig made a surprise announcement that the Creative Commons was “retiring” the Developing Nations and Sampling licenses.~{ Lessig post to CC International listserv, June 4, 2007. More about the CC’s retired licenses can be seen at http://creativecommons.org/retiredlicenses. }~ One reason was a lack of interest in the licenses: only 0.01 percent of CC licensors were using each license. But, without alluding to the Free Software Foundation or Stallman, Lessig also noted that the two licenses did not ensure a minimal freedom to share a work noncommercially— a standard met by all other CC licenses. In addition, Lessig pointed out to me, some publishers were beginning to see the Developing Nations license as a subterfuge to avoid meeting open-access publishing standards. +={Free Software Foundation;Creative Commons International:Developing Nations license} + +For Creative Commons, the revocation of the two licenses was at least a shrewd political move; it also affirmed a stricter standard of “freedom” in the ability to use digital materials. In return for sacrificing two little-used licenses, the organization gained Stallman’s eventual support for a deal that would let the FDL be treated as compatible with the CC ShareAlike license. This was a major triumph because it could avoid the contorted, legalistic solutions that had been previously proposed and rejected. It was also a breakthrough because it averted a major rift between two growing bodies of open content and avoided a slow drift into a wider Balkanization of content across the Internet. “I kind of thought that no matter what we did, Richard would find a reason to object,” recalled Lessig, “but he didn’t. He stuck to his principles, so I give credit to him.”~{ Interview with Lawrence Lessig, October 23, 2007. }~ +={open networks:license incompatibility, and} + +The debates about “freedom” produced several specific results. In November 2006, when Creative Commons released an updated legal version of its licenses, version 3.0, it formally recognized other licenses as legally compatible with the ShareAlike license if they have the same purpose, meaning, and effect, and if the other license recognizes the CC license. The move should help avoid future strife over interoperability. + +A few months later, the Creative Commons also adopted a “Free Cultural Works” definition and seal as a way to recognize works that are “free,” as understood by the Free Software Foundation. The definition declares that works with either the CC Attribution or Attribution-ShareAlike licenses should be considered “free” because they give people the freedom to modify works without any discrimination against specific uses or users. The definition and seal /{exclude}/ the CC NonCommercial and NoDerivatives licenses, however, because those licenses do not allow this sort of freedom. The purpose of the seal is not to denigrate use of the NC and ND licenses, but to educate users about the less restrictive licenses and to assert a philosophical solidarity with the free software community. +={Free Software Foundation} + +As part of this larger effort, the Creative Commons also issued a draft statement in April 2008 declaring the special importance of the ShareAlike license in the free culture movement and the organization’s intentions in its stewardship of the license. The statement amounted to a diplomatic peace treaty, to be finalized in the months ahead. +={free culture:sharing ethic of+1} + +By May 2008 the details of the agreement to make Wikipedia’s entries, licensed under the FDL, legally compatible with materials licensed under the CC ShareAlike license had not been consummated. But it was expected that the legal technicalities would be ironed out, and two great bodies of open content would no longer be legally off-limits to each other. + +2~ Criticism from the Left and from the South + +As the Creative Commons has grown in popularity, a longer line has formed to take issue with some of its fundamental strategies. One line of criticism comes from anticapitalist ideologues, another from scholars of the underdeveloped nations of the South. + +British academics Berry and Moss apparently hanker for a more bracing revolution in culture;they object to the commodification of culture in any form and to the role that copyright law plays in this drama. To them, Lessig is distressingly centrist. He is “always very keen to disassociate himself and the Creative Commons from the (diabolical) insinuation that he is (God forbid!) anti-market, anticapitalist, or communist,” Berry and Moss complain.~{ David Berry and Giles Moss, “On the ‘Creative Commons’: A Critique of the Commons Without Commonality,” /{Free Software Magazine}/, July 15, 2005, at http://www.freesoftwaremagagine.com/articles/commons_without_commonality }~ The gist of their objection: Why is Lessig collaborating with media corporations and neoclassical economists when there is a larger, more profound revolution that needs to be fought? A new social ethic and political struggle are needed, they write, “not lawyers exercising their legal vernacular and skills on complicated licenses, court cases and precedents.” +={Berry, David;Moss, Giles;Lessig, Lawrence:CC licenses, and} + +Dense diatribes against the antirevolutionary character of Creative Commons can be heard in various hacker venues and cultural blogs and Web sites. The argument tends to go along the lines sketched here by Anna Nimus of Berlin, Germany: +={Nimus, Anna+1} + +_1 Creative Commons preserves Romanticism’s ideas of originality, creativity and property rights, and similarly considers “free culture” to be a separate sphere existing in splendid isolation from the world of material production. Ever since the 18th century, the ideas of “creativity” and “originality” have been inextricably linked to an anti-commons of knowledge. Creative Commons is no exception. There’s no doubt that Creative Commons can shed light on some of the issues in the continuing struggle against intellectual property. But it is insufficient at best, and, at its worst, it’s just another attempt by the apologists of property to confuse the discourse, poison the well, and crowd out any revolutionary analysis.~{ Anna Nimus, “Copyright, Copyleft and the Creative Anti-Commons,” at http://subsol.c3.hu/subsol_2/contributors0/nimustext.html. }~ + +To ensure that her revolutionary analysis gets out, Nimus released her piece under a self-styled “Anticopyright” notation, with the added phrase, “All rights dispersed.” + +A more penetrating brand of criticism has come from the South, which fears that the West’s newfound enthusiasm for the commons may not necessarily benefit the people of developing nations; indeed, it could simply legitimate new thefts of their shared resources. In an important 2004 law review article, “The Romance of the Public Domain,” law professors Anupam Chander and Madhavi Sunder argue that “public domain advocates seem to accept that because a resource is open to all by force of law, that resource will indeed be exploited by all. In practice, however, differing circumstances — including knowledge, wealth, power and ability — render some better able than others to exploit a commons. We describe this popular scholarly conception of the commons as ‘romantic.’ . . . It is celebratory, even euphoric, about the emancipatory potential of the commons. But it is also naïve, idealistic and removed from reality.”~{ Anupam Chander and Madhavi Sunder, “The Romance of the Public Domain,” California Law Review 92, no. 1131 (2004), p. 1341. }~ +={Chander, Anupam+2;Sunder, Madhavi+2;free culture:international+2;public domain+3:commons, and+3} + +If genes, seeds, indigenous medicines, agricultural innovations, artistic designs, music, and the various ecological and cultural resources of the South are not treated as private property, but instead as elements of the public domain, then anyone can exploit them freely. This can lead to serious injustices, as powerful corporations swoop in to exploit resources that are available to all in the public domain. + +Chander and Sunder write: “By presuming that leaving information and ideas in the public domain enhances ‘semiotic democracy’ — a world in which all people, not just the powerful, have the ability to make cultural meanings — law turns a blind eye to the fact that for centuries the public domain has been a source for exploiting the labor and bodies of the disempowered — namely, people of color, the poor, women and people from the global South.”~{ Ibid., p. 1343. }~ Chander and Sunder argue that the binary logic of copyright law — something is either private property or in the public domain — “masks the ways in which the commons often functions more in the interests of traditional property owners than in the interests of commoners.” +={democracy:semiotic} + +This critique makes clear why the distinction between the public domain and the commons matters. The public domain is an open-access regime available to all; it has no property rights or governance rules. The commons, however, is a legal regime for ensuring that the fruits of collective efforts remain under the control of that collective. The GPL, the CC licenses, databases of traditional knowledge, and sui generis national statutes for protecting biological diversity all represent innovative legal strategies for protecting the commons. The powerful can exploit and overwhelm the public domain, but they are not likely to overwhelm a commons that has a legal regime to protect a collective’s shared resources. +={commons:protection of;General Public License (GPL):commons, and} + +A more radical and profound critique of the commons came in an open letter to “inhabitants of the ‘legal’ Commons” from “Denizens of Non Legal Commons, and those who travel to and from them.” The three-page letter, drafted by Shuddhabrata Sengupta, a filmmaker and writer with the Raqs Media Collective in New Delhi, is a plea for recognizing the informal sharing economy that flourishes beneath the oblivious gaze of mainstream society, and certainly beyond the reach of property rights and law. +={Sengupta, Shuddhabrata} + +“Greetings!” the letter opens. “This missive arrives at your threshold from the proverbial Asiatic street, located in the shadow of an improvised bazaar, where all manner of oriental pirates and other dodgy characters gather to trade in what many amongst you consider to be stolen goods.” To this /{other}/ commons, stolen goods are really “borrowed,” because nothing is really “owned” — and therefore nothing can be “stolen.” This is the realm of “the great circulating public library of the Asiatic street.” The letter continues: + +_1 We appreciate and admire the determination with which you nurture your garden of licenses. The proliferation and variety of flowering contracts and clauses in your hothouses is astounding. But we find the paradox of a space that is called a commons and yet so fenced in, and in so many ways, somewhat intriguing. The number of times we had to ask for permission, and the number of security check posts we had to negotiate to enter even a corner of your commons was impressive. . . . Sometimes we found that when people spoke of “Common Property” it was hard to know where the commons ended and where property began . . . + +_1 Strangely, the capacity to name something as “mine,” even if in order to “share” it, requires a degree of attainments that is not in itself evenly distributed. Not everyone comes into the world with the confidence that anything is “theirs” to share. This means that the “commons,” in your parlance, consists of an arrangement wherein only those who are in the magic circle of confident owners effectively get a share in that which is essentially, still a configuration of different bits of fenced in property. What they do is basically effect a series of swaps, based on a mutual understanding of their exclusive property rights. So I give you something of what I own, in exchange for which, I get something of what you own. The good or item in question never exits the circuit of property, even, paradoxically, when it is shared. Goods that are not owned, or those that have been taken outside the circuit of ownership, effectively cannot be shared, or even circulated.~{ “A Letter to the Commons, from the participants of the ‘Shades of the Commons Workshop,’ ” in /{In the Shade of the Commons:Towards a Culture of Open Networks}/ (Amsterdam, Netherlands: Waag Society, 2006), at http://www3.fis.utoronto.ca/research/iprp/cracin/publications/pdfs/final/werbin_InThe Shade.pdf. }~ + +The letter invites a deeper consideration of how humans form commons. However ingenious and useful the jerry-rigged legal mechanisms of the GPL and Creative Commons, the disembodied voice of the Non Legal Commons speaks, as if through the sewer grate, to remind us that the commons is about much more than law and civil society. It is part of the human condition. Yet the chaotic Asiatic street is not likely to yield conventional economic development without the rule of law, civil institutions, and some forms of legal property. The question posed by the informal commons remains a necessary one to ponder: What balance of commons and property rights, and in what forms, is best for a society? + +2~ Fair Use and the Creative Commons +={Creative Commons (CC) licenses:fair use, and+15;fair use doctrine:CC licenses, and+15} + +Walk through the blossoming schools of commons thought and it quickly becomes clear that the commons is no monolithic ideal but a many-splendored mosaic of perspectives. To the befuddlement of conventional observers, the perspectives are not necessarily adversarial or mutually exclusive. More often than not, they are fractal— interesting variations of familiar commons themes. In our fascination with newfangled commons, it is easy to overlook a more traditionally minded defender of the commons: the champion of fair use. It is all well and good to promote works that are “born free” under CC licenses, say these friendly critics. But the hard fact of the matter is that for the foreseeable future, creators will still need access to copyrighted content — and this requires a strong fair use doctrine and aggressive public education. + +It is a compelling argument, but in fact only an indirect criticism of Creative Commons. For filmmakers who need to use film clips from existing films and musicians who want to use a riff from another performer, the fair use doctrine is indeed more important than any CC license. Peter Jaszi, the law professor at American University’s Washington School of Law, believes that even with growing bodies of CC-licensed content, “teachers, filmmakers, editors, freelance critics and others need to do things with proprietary content.” As a practical matter, they need a strong, clear set of fair use guidelines. +={Jaszi, Peter+2} + +Jaszi and his colleague Pat Aufderheide, a communications professor who runs the Center for Social Media at American University, have dedicated themselves to clarifying the scope and certainty of fair use. They have launched a major fair use project to get specific creative communities to define their “best practices in fair use.” If filmmakers, for example, can articulate their own artistic needs and professional interests in copying and sharing, then the courts are more likely to take those standards into consideration when they rule what is protected under the fair use doctrine.~{ Center for Social Media, at http://www.centerforsocialmedia.org/fairuse. See also Pat Aufderheide and Peter Jaszi, “Fair Use and Best Practices: Surprising Success,” /{Intellectual Property Today}/, October 2007, at http://www.iptoday.com/articles/2007-10-aufderheide.asp; and Peter Jaszi, “Copyright, Fair Use and Motion Pictures,” /{Utah Law Review}/ 3, no. 715 (2007), and which also appeared in R. Kolker, ed., /{Oxford Handbook of Film and Media Studies}/ (2007), at http://www.centerforsocialmedia.org/files/pdf/fairuse_motionpictures.pdf. }~ A set of respectable standards for a given field can help stabilize and expand the application of fair use. +={Aufderheide, Pat+1} + +Inspired in part by a professional code developed by news broadcasters, some of the nation’s most respected filmmakers prepared the Documentary Filmmakers’ Statement of Best Practices in Fair Use, which was released in November 2005. The guidelines have since been embraced by the film industry, television programmers, and insurance companies (who insure against copyright violations) as a default definition about what constitutes fair use in documentary filmmaking.~{ Aufderheide and Jaszi, /{Intellectual Property Today}/, October 2007, at http://www.iptoday.com/articles/2007-10-aufderheide.asp. }~ Aufderheide and Jaszi are currently exploring fair use projects for other fields, such as teaching, as a way to make fair use a more reliable legal tool for sharing and reuse of works. + +Lessig has been highly supportive of the fair use project and, indeed, he oversees his own fair use law clinic at Stanford Law School, which litigates cases frequently. “It’s not as if I don’t think fair use is important,” said Lessig, “but I do think that if the movement focuses on fair use, we don’t attract the people we need. . . . From my perspective, long-term success in changing the fundamental perspectives around copyright depends on something like Creative Commons as opposed to legal action, and even quasi-legal action, like the Fair Use Project.” +={Lessig, Lawrence:fair use, on+5} + +For Lessig, fair use is deeply flawed as the basis for building a political movement to reform copyright law. He argues that its advocates are dogged by the (unfair) perception that they are “just a bunch of people who want to get stuff for free, without paying for it. . . . It’s too easy to dismiss that movement.” Lessig recalled the time that the head of a major record label snorted, “Fair use is the last refuge of the scoundrel.” Fair use defenders obviously take issue with this characterization, but the accusation nonetheless pushes fair use champions into a rhetorical corner from which it is difficult to escape. + +A more appealing alternative, Lessig argues, is to use the credibility of copyright ownership to argue the point in a different way. He cited the successful campaign by European software engineers in the 1980s to fight attempts to expand patent protection for software. Their campaign did not resemble “a bunch of peer-to-peer downloaders who are saying, ‘Yeah, I want my music for free,’” said Lessig. “It was a bunch of people who are the /{beneficiaries}/ of patent rights saying, ‘Look, we /{don’t want}/ these rights.’ That creates a kind of credibility.” From a moral and political standpoint, Lessig argued, a movement based on copyright owners declaring that they want to forfeit certain rights in order to /{share}/ and promote creativity, has greater credibility than a campaign seeking to “balance” the public’s rights against private copyright privileges. + +“I imagine a world where there are one hundred million Creative Commons–licensed artists out there, creating works according to Creative Commons views,” he said. Then, when Hollywood pressures Congress for stronger copyright protections, he said, “there would be all these people out there who are creating according to a radically different model. [Hollywood’s] claims about extremism would just not be true for a large number of creators.” Instead of a copyright debate that pits “creators” against “pirates,” Lessig said, “I want to create this world where there is a third category of people who are creators, but who create according to different values, values that emphasize the importance of sharing and building upon the past.”~{ Interview with Lawrence Lessig, October 23, 2007. }~ +={piracy} + +In the larger scheme of things, the tensions between the fair use and free culture advocates are not mutually exclusive. In the end, the two approaches complement each other with different contributions. Both seek to promote sharing and reuse, but the former works within the traditional framework of copyright law; the latter is trying to build a whole new body of culture and discourse. There is a kind of gentleman’s agreement between the fair use and free culture communities to work on different sides of the street, while traveling a parallel path down the same road. +={free culture:fair use vs.+2;fair use doctrine:copyright law, and;copyright law:fair use doctrine, and} + +For Lessig, there is little advantage in shirking the property rights discourse of copyright law, as Elkin-Koren and the “Non Legal Commons” urge. Indeed, he sees a distinct strategic advantage in /{embracing}/ that discourse — and then trying to turn it to different ends. This, in a way, is what Stallman succeeded in doing with the GPL, a license based on copyright law. Yet, while Stallman attracted a somewhat homogeneous community of programmers to his movement, Creative Commons has attracted a sprawling community of eclectic interests, diverse priorities, and no agreed-upon philosophical core. +={Elkin-Koren, Niva;copyright law:property rights, and;property rights:copyright law, and;free software:social movement, as} + +By choosing a middle path that embraces but seeks to transform property discourse, Creative Commons may avoid the marginalization of ardent leftists and the modest agenda of fair use activism. It remains an open question whether the ideological fuzziness at the core of Creative Commons, or the limitations of its licenses, is offset by its success in popularizing a new cultural vision. Yochai Benkler, the great commons theorist, understands the legal criticisms, and agrees with them to an extent. But ultimately, the significance of Creative Commons, he believes, has been “in galvanizing a movement, in symbolizing it and in providing a place to organize around. From my perspective, if I care about Creative Commons, it is as a cultural icon for a movement, more than as a set of licenses. Which is why I am less bothered than some, about the people who are beginning to criticize Creative Commons and how good the licenses really are, and how compatible they are.”~{ Interview with Yochai Benkler, February 7, 2006. }~ +={Benkler, Yochai:social movements, on;free culture:social movement, as+4} + +For Cory Doctorow, the copyfighter and sci-fi writer, the eclectic viewpoints within the free culture movement is a decisive strength: “The difference between a movement and an organization,” he wrote on the iCommons listserv, “is that an organization is a group of people who want the same thing for the same reason. A movement is a collection of groups of people who want the same thing for different reasons. Movements are infinitely more powerful than organizations.” +={Doctorow, Cory:free culture movemement, and+1} + +The reason the environmental movement is so powerful, Doctorow continued, is the very fact that it encompasses “anticapitalists, green investors, spiritualists, scientists, hunters and fishers, parents worried about environmental toxins, labor reformers, proglobalists, anti-globalists, etc. . . . Denuding the ideological landscape of the environmental movement in a purge to eliminate all those save the ones who support environmentalism /{qua}/ environmentalism would be the worst setback environmentalism could suffer. Likewise copyfighters: there are Marxists, anarchists, Ayn Rand objectivists, economists, artists, free marketeers, libertarians, liberal democrats, etc., who see copyright liberalization as serving their agenda. If we insist that copyright reform is about copyright reform and nothing else, there will be no copyright reform movement.”~{ Cory Doctorow, iCommons listserv [thread, “Andrew Orlowski Attacks Lessig], June 1, 2007. }~ +={Rand, Ayn} + +There is a price to be paid for all this diversity, however. Diversity means constant debate. Debate can escalate into strife and sectarianism. And in the free culture movement, where so many people are feverishly improvising and inventing, nearly everything is open for debate. It turns out that this business of inventing the commons is complicated stuff; there are many ways to construct a commons. It is only natural for people to have their own ideas about how to build the digital republic. + +The fundamental question may be whether the existing framework of copyright law and property discourse can be adequately reformed — or whether its very categories of thought are the problem. The late poet and activist Audre Lorde, in the context of feminist struggle, declared that the prevailing discourse must be overthrown, not reformed, because, in her words, “the master’s tools will never dismantle the master’s house.” Within the free software and free culture movements, however, there are those who believe that copyright law can be sufficiently adapted to build a sharing economy, a more competitive marketplace, and a more humane democratic culture. Others are convinced that the legal discourse of property rights, however modified, will simply entrench the very principles that they wish to transcend. As the movement grows and diversifies, debates over what constitutes the most strategic, morally honorable path forward are likely to intensify. +={Lorde, Audre;copyright law:property rights, and;property rights:copyright law, and;free software:social movement, as} + +:B~ PART III + +:C~ A Viral Spiral of New Commons + +1~intro_iii [Intro] -# + +By 2008 the viral spiral had come a long way. Richard Stallman’s fringe movement to build a commons for code became an enormous success, partly inspiring Lawrence Lessig and his compatriots to develop the Creative Commons licenses and a larger vision of free culture. Empowered by these tools, ordinary people began to develop some exciting new models for creativity and sharing. New types of commons arose. Soon there was a popular discourse about the sharing economy, a politics of open networks, and a new international social movement. The movement was so successful at diversifying itself that it was able to engage in serious internecine squabbles. +={Stallman, Richard:influence of;code:free access to;commons:achievement of;free culture;Lessig, Lawrence:CC licenses, and;open networks+1} + +As the commons movement matured, and people came to understand the sensibilities of open networks, the viral spiral seemed to acquire new speed and powers. Over the past few years, it has advanced into all sorts of new arenas. Part III examines three of the most exciting ones — business, science, and education. Each has taken the tools and insights developed by the commons movement — free software, CC licenses, collaborative models — and adapted them to its own special needs. + +These spin-off movements of entrepreneurs, scientists, and educators recognize their debt to the free software and CC licenses, but none feels confined by that history or beholden to its leaders. Each is too intent on adapting the tools to its own circumstances. Just as CC licenses have been used in some ways by musicians, and in other ways by filmmakers, and in still other ways by bloggers, so the commoners in the worlds of business, science, and education are forging their own paths. Development requires differentiation. It is fascinating to watch how the principles of the commons are being crafted to meet the distinctive needs of the marketplace, the academy, the research lab, and the classroom. + +What may be most notable about these developments is the blurring of these very categories. On open platforms, social communities are becoming sites for market activity. Scientists are increasingly collaborating with people outside their disciplines, including amateurs. Formal education is becoming more focused on learning, and learning is moving out of the classroom and into more informal and practice-driven venues. + +If there is a common denominator in each of the domains examined in Part III, it is the use of distributed networks, social community, and digital technologies to enhance the goals at hand. The new open business models seek to bring consumer and seller interests into closer alignment. The new science commons seek to create more powerful types of research collaboration. The open educational resources movement wants knowledge to circulate more freely and students to direct their own learning. + +For the short term, the fledgling models in these fields are likely to be seen as interesting novelties on the periphery of the mainstream. In time, however, given what we know about network dynamics, the new models are likely to supplant or significantly transform many basic parameters of business, science, and education. The participatory practices that open networks enable are showing that knowledge is more about socially dynamic relationships than about fixed bodies of information. These relationships are also spawning new challenges to institutional authority and expertise. If one looks closely enough, the matrix for a very different order of knowledge, institutional life, and personal engagement can be seen. + +1~ 10 THE NEW OPEN BUSINESS MODELS +={open business models+79} + +/{The commons and the market can be great partners if each shows respect for the other and ingenuity in working together.}/ + +Entrepreneur John Buckman concedes that his Internet record label, Magnatune, amounts to “building a business model on top of chaos.”~{ John Buckman presentation at iCommons Summit, Dubrovnik, Croatia, June 15, 2007. }~ That is to say, he makes money by honoring open networks and people’s natural social inclinations. The company rejects the proprietary muscle games used by its mainstream rivals, and instead holds itself to an ethical standard that verges on the sanctimonious: “We are not evil.” In the music industry these days, a straight shooter apparently has to be that blunt. +={Buckman, John+4;Magnatune+8;music:CC licenses for+8;Creative Commons (CC) licenses:music, for+8} + +Magnatune is a four-person enterprise based in Berkeley, California, that since 2003 has been pioneering a new open business model for identifying and distributing high-quality new music. It does not lock up the music with anticopying technology or digital rights management. It does not exploit its artists with coercive, unfair contracts. It does not harass its customers for making unauthorized copies. Internet users can in fact listen to all of Magnatune’s music for free (not just music snippets) via online streaming.~{ John Buckman entry in Wikipedia, at http://en.wikipedia.org/wiki/John_Buckman. }~ + +Buckman, a former software programmer turned entrepreneur in his thirties, previously founded and ran Lyris Technologies, an e-mail list management company that he sold in 2005. In deciding to start Magnatune, he took note of the obvious realities that the music industry has tried to ignore: radio is boring, CDs cost too much, record labels exploit their artists, file sharing is not going to go away, people love to share music, and listening to music on the Internet is too much work. “I thought, why not make a record label that has a clue?” said Buckman.~{ John Buckman at Magnatune home page, at http://www.magnatune.com/info/why. }~ + +Well before the band Radiohead released its In /{Rainbows}/ album with a “pay what you want” experiment, Magnatune was inviting its customers to choose the amount they would be willing to pay, from $5 to $18, for any of Magnatune’s 547 albums. Buckman explains that the arrangement signals a respect for customers who, after all, have lots of free music choices. It also gives them a chance to express their appreciation for artists, who receive 50 percent of the sales price. “It turns out that people are quite generous and they pay on average about $8.40, and they really don’t get anything more for paying more other than feeling like they’re doing the right thing,” said Buckman.~{ John Buckman, interview with Matthew Magee of Out-Law.com, radio podcast, September 13, 2007, at http://www.out-law.com/page-8468. }~ About 20 percent pay more than $12.~{ John Buckman at iCommons, June 15, 2007. For an extensive profile of Buckman and Magnatune, see http://www.openrightsgroup.org/creativebusiness/index.php/John_Buckman:_Magnatune. }~ +={Radiohead} + +“The reality is today nobody really needs to pay for music at all,” he acknowledges. “If you choose to hit the ‘buy’ button at Magnatune then you’re one of the people who has decided to actually pay for music. Shouldn’t we reflect that honest behavior back and say, well, if you’re one of the honest people how much do you want to pay?”~{ John Buckman, interview with Matthew Magee, September 13, 2007. }~ The set-your-own-price approach is part of Magnatune’s larger strategy of building the business by cultivating open, interactive relationships with its customers and artists. “If you set up a trusting world,” explains Buckman, “you can be rewarded.” + +Magnatune’s business model embraces the openness of the Internet and makes it a virtue, rather than treating it as a bothersome liability that must be elaborately suppressed. All of Magnatune’s music is released as MP3 files, with no digital rights management, under a CC Attribution-NonCommercial-ShareAlike license. This means that customers can legally make their own remixes and covers of songs, and take samples, so long as the uses are noncommercial and carry the same CC license. Magnatune also invites customers to give free downloads of purchased music to three friends. Podcasters have free access to the entire Magnatune catalog. + +By using a CC license, Magnatune saves a bundle by not having to oversee complex terms and conditions for usage of music. Nor does it have to maintain a DRM system and police the behavior of its customers, both of which squander a key marketing asset: consumer goodwill. Instead, the music circulates freely and, in so doing, expands public awareness of Magnatune’s 244 artists. + +Two-thirds of Magnatune’s revenues comes from licensing its music to films, ads, television, and shops. Like so many open business models, it has carved out a mid-tier niche between “expensive and proprietary” and “cheap and crummy.” Most mainstream music licensing involves either expensive, highly lawyered deals with record labels or insipid stock music from royalty-free CDs. Magnatune’s innovation is to offer high-quality music in multiple genres at flatrate licenses for sixteen different usage scenarios. The deals can be easily consummated via the Web; artists share in half the proceeds. No accounting flimflam. To date, Magnatune has licensed its music to more than one thousand indie films and many commercials. + +Magnatune is a small, fledgling enterprise in the $4 billion music industry. It does not have all the answers, and it may be sideswiped by bigger players at some point. But Magnatune is lean, nimble, profitable, and growing. It has shown how innovative business models can flourish in the open environment of the Internet. Unlike its bloated, besieged competitors, Magnatune is willing to listen closely to its customers, artists, and licensing clients. It is fair-minded and straightforward; it wants to share the wealth and let the music flow. + +2~ Open Networks Spur New Business Models +={open networks:new business models in+16;open business models:open networks and+16} + +Openness does not come intuitively to many businesses. Competitive advantage has long been associated with exclusive control and secrecy. But as the Internet’s power expands, conventional businesses are feeling pressures to rethink their “closed” business models. A new breed of “open businesses” is demonstrating that a reliance on open-source software, open content, and an ethic of transparency in dealings with all corporate stakeholders can be tremendously competitive. +={open business models:transparency in;transparency;Internet:rise of} + +Open businesses understand the Great Value Shift discussed in chapter 5 — that working through open networks and commons is likely to generate greater consumer attention, engagement, and loyalty — and thus sales — and may outperform a more exclusive regime of control. Working on an open network is also the best way for a company to get smarter faster, and to stay alert to changing market conditions. It bears noting that business models are not an either/or choice — that is, all open or all closed. There is a continuum of choices, as we will see below. Sometimes there are heated strategic and moral debates about what level of openness to adopt, yet the general trend in business today is clear: toward openness. +={Great Value Shift;open business models:Great Value Shift, and} + +Even as broadcast networks decry the posting of copyrighted television programs on YouTube, they clearly welcome the ratings spikes that ensue. Wireless telephony is fragmented among many proprietary systems, but pressures are now growing to make them compete on an open platform.~{ See,e.g., Walter S.Mossberg, “Free My Phone,” /{Wall Street Journal}/, October 22, 2007, p. R1. }~ European regulators are calling for “open document format” standards to prevent Microsoft from abusing its proprietary standards in its Office suite of software. There are even calls for open standards for avatars in virtual worlds like Second Life, The Lounge, and Entropia Universe, so that our digital alter egos can glide from one virtual community to another.~{ Steve Lohr, “Free the Avatars,” New York Times, October 15, 2007. }~ +={YouTube;Microsoft:competition against;open business models:interoperability of+1} + +Why this inexorable trend toward openness? Because on open networks, excessive control can be counterproductive. The overall value that can be created through interoperability is usually greater than the value that any single player may reap from maintaining its own “walled network.”~{ See Elliot E. Maxwell, “Open Standards, Open Source, and Open Innovation: Harnessing the Benefits of Openness,” /{Innovations:Technology, Governance, Globalization}/ 1, no. 3 (Summer 2006), at http://www.emaxwell.net. }~ For a company to reap value from interoperability, however, it must be willing to compete on an open platform and it must be willing to share technical standards, infrastructure, or content with others. Once this occurs, proprietary gains come from competing to find more sophisticated ways to add value in the production chain, rather than fighting to monopolize basic resources. Advantage also accrues to the company that develops trusting relationships with a community of customers. +={open business models:value created in+9;value:creation of+9} + +Free software was one of the earliest demonstrations of the power of online commons as a way to create value. In his classic 1997 essay “The Cathedral and the Bazaar,” hacker Eric S. Raymond provided a seminal analysis explaining how open networks make software development more cost-effective and innovative than software developed by a single firm.~{ Eric Raymond, “The Cathedral and the Bazaar,” May 1997, at http://www.catb.org/~esr/writings/cathedral-bazaar. The essay has been translated into nineteen languages to date. }~ A wide-open “bazaar” such as the global Linux community can construct a more versatile operating system than one designed by a closed “cathedral” such as Microsoft. “With enough eyes, all bugs are shallow,” Raymond famously declared. Yochai Benkler gave a more formal economic reckoning of the value proposition of open networks in his pioneering 2002 essay “Coase’s Penguin, or, Linux and the Nature of the Firm.”~{ Yochai Benkler, “Coase’s Penguin, or, Linux and the Nature of the Firm,” /{Yale Law Journal}/ 112, no. 369 (2002), at http://www.benkler.org/CoasesPenguin.html. }~ The title is a puckish commentary on how GNU/Linux, whose mascot is a penguin, poses an empirical challenge to economist Ronald Coase’s celebrated “transaction cost” theory of the firm. In 1937, Coase stated that the economic rationale for forming a business enterprise is its ability to assert clear property rights and manage employees and production more efficiently than contracting out to the marketplace. +={Benkler, Yochai:open networks, on+3;Raymond, Eric S.:“The Cathedral and the Bazaar”;free software:creation of value, and;Linux:open business models, and;Microsoft:competition against;Coase, Ronald;GNU/Linux:open business models, and;transaction costs:theory of;open business models:“transaction cost” theory, and} + +What is remarkable about peer production on open networks, said Benkler, is that it undercuts the economic rationale for the firm; commons-based peer production can perform certain tasks more efficiently than a corporation. Those tasks must be modular and divisible into small components and capable of being efficiently integrated, Benkler stipulated. The larger point is that value is created on open networks in very different ways than in conventional markets. Asserting proprietary control on network platforms may prevent huge numbers of people from giving your work (free) social visibility, contributing new value to it, or remixing it. “The only thing worse than being sampled on the Internet,” said Siva Vaidhyanathan, with apologies to Oscar Wilde, “is not being sampled on the Internet.” +={Vaidhyanathan, Siva} + +The /{New York Times}/'s experience with its paid subscription service, TimesSelect, offers a great example. The /{Times}/ once charged about fifty dollars a year for online access to its premier columnists and news archives. Despite attracting more than 227,000 subscribers and generating about $10 million a year in revenue, the /{Times}/ discontinued the service in 2007.~{ Richard Pérez-Peña, “Times to Stop Charging for Parts of Its Web Site,” /{New York Times}/, September 18, 2007. }~ A /{Times}/ executive explained that lost subscription revenues would be more than offset by advertising to a much larger online readership with free access. The /{Financial Times}/ and the /{Economist}/ have dropped their paywalls, and the /{Wall Street Journal}/ in effect has done so by allowing free access via search engines and link sites. From some leading citadels of capitalism, a rough consensus had emerged: exclusivity can /{decrease}/ the value of online content.~{ Frank Ahrens, “Web Sites, Tear Down That Wall,” /{Washington Post}/, November 16, 2007, p. D1. See also Farhad Manjoo, “The Wall Street Journal’s Website Is Already (Secretly) Free,” /{Salon}/, March 21, 2008, at http://machinist.salon.com/blog/2008/03/21/wsj/index.html. }~ +={New York Times} + +While enormous value can be created on open networks, it can take different forms, notes David P. Reed, who studies information architectures.~{ David P. Reed, “The Sneaky Exponential — Beyond Metcalfe’s Law to the Power of Community Building,” at http://www.reed.com/Papers/GFN/reedslaw.html. }~ One of the most powerful types of network value is what Reed calls “Group-Forming Networks,” or GFNs — or what Benkler might call commons-based peer production and I would call, less precisely, the commons. Reed talks about “scale-driven value shifts” that occur as a network grows in size. Greater value is created as a network moves from a broadcast model (where “content is king”) to peer production (where transactions dominate) and finally, to a group-forming network or commons (where jointly constructed value is produced and shared). +={Reed, David P.;Benkler, Yochai:The Wealth of Networks;commons-based peer production+3;group-forming networks (GFNs)} + +It is unclear, as a theoretical matter, how to characterize the size and behavior of various “value networks” on the Web today. For simplicity’s stake — and because Web platforms are evolving so rapidly — I refer to two general value propositions, Web 2.0 and the commons. Web 2.0 is about creating new types of value through participation in distributed open networks; the commons is a subset of Web 2.0 that describes fairly distinct, self-governed communities that focus on their own interests, which usually do not involve moneymaking. +={Web 2.0:open business, and+4} + +The rise of Web 2.0 platforms and the commons clearly has some serious implications for business strategy and organization. Just consider how Craigslist is displacing millions of dollars of classified newspaper ads; how open-access journals are threatening the economic base of commercial academic journals; and how usergenerated content is competing with network television. At the same time, activities that once occurred through informal social means (finding a date, organizing a gathering, obtaining word-ofmouth recommendations) are increasingly becoming commercial endeavors on the Web. Especially when the commons has strong mechanisms to preserve its value-creating capacity, such as the GPL, open networks are helping to convert more market activity into commons-based activity, or at least shifting the boundary between commodity markets and proprietary, high-value-added markets. As this dynamic proceeds, the social and the commercial are blurring more than ever before. + +Many “value chains” that have long sustained conventional businesses are being disrupted. As described in chapter 5, more efficient types of distributed media are disrupting the production/distribution chain that sustains Centralized Media. The Long Tail lets online consumers “pull” niche products that they want rather than enduring a relentless marketing “push” of products they don’t want. Commons-based peer production is a nonmarket version of the Long Tail: dispersed communities of people with niche interests can find one another, form social communities, bypass the market, and collaborate to create the niche resources that they want. +={Long Tail;Centralized Media:production/distribution chain of} + +The question facing many businesses is how to develop stable, long-term business models that can coexist with productive commons, if not leverage them for market gain. Their goal is to find ingenious ways to “monetize” the social relationships of online communities (by selling targeted advertising, personal data, niche products, etc.). Open businesses aim to do this in a respectful, public-spirited way; other, more traditional firms may have fewer scruples because, for them, “it’s all about the money.” + +But here’s the rub: a company can go only so far in monetizing the value-generating capacities of a commons without enclosing it or enraging the commoners. A company may consider itself shrewd for acquiring the copyrights for user-generated content, for example, or for blocking user access to third-party widgets that it disapproves of.~{ See, e.g., Paula Lehman, “MySpace Plays Chicken with Users,” BusinessWeek Online, April 12, 2007. }~ But participants in Web 2.0 communities will protest or simply leave if a corporate host starts to dictate obnoxious policies. A company can try to run its Web 2.0 platform as a feudal fiefdom, but it risks inciting users to revolt and start their own (nonmarket) online communities, reinventing themselves as commoners. Although there is an implicit social ethic to Web 2.0 platforms, none is necessarily “free” in the Stallman sense of “freedom.” +={Stallman, Richard:freedom, and} + +Unfortunately, there is no clear consensus about how exactly to define an “open business.” Accordingly, assessments of their social, political, or economic virtue can be slippery. Some analysts such as Henry Chesbrough regard a business as “open” if it relaxes or modifies its intellectual property controls, or changes its organizational practices, as a way to reap value from open networks.~{ Henry Chesbrough, /{Open Business Models: How to Thrive in the New Innovation Landscape}/ (Cambridge, MA: Harvard Business School Press, 2006). }~ Others believe that an open business should use open-source software, and support the copying and sharing of works through CC or other open-content licenses. Sometimes the idea of open business is yoked to a vaguely defined notion of “social responsibility.” It is not always clear whether this ethic is a moral gloss or a structural feature, but in general open businesses strive to practice a more open, accountable, and socially enlightened vision of commerce. +={Chesbrough, Henry;open business models:definition, no consensus+2|social responsibility, and} + +One champion of this vision is OpenBusiness, a Web site jointly created by Creative Commons UK in partnership with CC Brazil and the FGV Law School in Rio de Janeiro, Brazil. The mission of OpenBusiness is to “analyze and explain models by which people can share their knowledge and creativity with others whilst at the same time enjoying the more traditional incentives of profit, individual success and societal advancement.”~{ http://www.openbusiness.org. }~ By its lights, an open business is commons-friendly if it is committed to “transparency,” “sustainable systems,” and to putting “the health and welfare of people above everything else.” An open business also tries to generate as many “positive externalities” as possible — knowledge, social relationships, revenues — which it is willing to share with its stakeholders. +={OpenBusiness;commoners:sharing by;open business models:international} + +It is perhaps best to approach open businesses as an eclectic social phenomenon in search of a theory. As it has been said about Wikipedia, “It works in practice, but not in theory.”~{ From blog of Professor Karim Lakhani, Harvard Business School, April 27, 2007. }~ It is risky to overtheorize phenomena that are still fluid and emerging. Still, specific examples of open business can help us understand some basic principles of open networks, and how some businesses are using CC licenses to build innovative sorts of enterprises. +={Wikipedia:social movement, as} + +2~ Share the Wealth, Grow a Commercial Ecosystem +={open business models:commercial ecosystem, as+5} + +The idea that a company can make money by giving away something for free seems so counterintuitive, if not ridiculous, that conventional business people tend to dismiss it. Sometimes they protesteth too much, as when Microsoft’s Steve Ballmer compared the GNU GPL to a “cancer” and lambasted open-source software as having “characteristics of communism.”~{ Joe Wilcox and Stephen Shankland, “Why Microsoft is wary of open source,” CNET, June 18, 2001; and Lea, Graham, “MS’ Ballmer: Linux is communism,” /{Register}/ (U.K.), July 31, 2000. }~ In truth, “sharing the wealth” has become a familiar strategy for companies seeking to develop new technology markets. The company that is the first mover in an emerging commercial ecosystem is likely to become the dominant player, which may enable it to extract a disproportionate share of future market rents. Giving away one’s code or content can be a great way to become a dominant first mover. +={Ballmer, Steve;General Public License (GPL):critics of;open business models:first movers+1;Microsoft:competition against+1} + +Netscape was one of the first to demonstrate the power of this model with its release of its famous Navigator browser in 1994. The free distribution to Internet users helped develop the Web as a social and technological ecosystem, while helping fuel sales of Netscape’s Web server software. (This was before Microsoft arrived on the scene with its Internet Explorer, but that’s another story.) At a much larger scale, IBM saw enormous opportunities for building a better product by using GNU/Linux. The system would let IBM leverage other people’s talents at a fraction of the cost and strengthen its service relationships with customers. The company now earns more than $2 billion a year from Linux-related services.~{ Yochai Benkler, /{The Wealth of Networks}/ (Yale University Press, 2006), Figure 2.1 on p. 47. }~ +={GNU/Linux:IBM, and;IBM:GNU/Linux, and;Netscape;World Wide Web:social activity on} + +Today, sharing and openness are key to many business strategies. “Open Source: Now It’s an Ecosystem,” wrote /{BusinessWeek}/ in 2005, describing the “gold rush” of venture capital firms investing in startups with open-source products. Most of them planned to give away their software via the Web and charge for premium versions or for training, maintenance, and support.~{ “Open Source: Now It’s an Ecosystem,” BusinessWeek Online, October 3, 2005. }~ + +The pioneers in using open platforms to develop commercial ecosystems on the Internet are Amazon, Google, Yahoo, and eBay. Each has devised systems that let third-party software developers and businesses extend their platform with new applications and business synergies. Each uses systems that dynamically leverage users’ social behaviors and so stimulate business — for example, customer recommendations about books, search algorithms that identify the most popular Web sites, and reputation systems that enhance consumer confidence in sellers. Even Microsoft, eager to expand the ecology of developers using its products, has released 150 of its source code distributions under three “Shared Source” licenses, two of which meet the Free Software Foundation’s definition of “free.”~{ Microsoft’s Shared Source Licenses, at http://www.microsoft.com/resources/sharedsource/licensingbasics/sharedsourcelicenses.mspx; see also Lessig blog, “Microsoft Releases Under ShareAlike,” June 24, 2005, at http://lessig.org/blog/2005/06/microsoft_releases_under_share.html. }~ +={Amazon;eBay;Microsoft:“Shared Source” licenses of;Yahoo;Google;World Wide Web:social activity on} + +More recently, Facebook has used its phenomenal reach — more than 80 million active users worldwide — as a platform for growing a diversified ecology of applications. The company allows software developers to create custom software programs that do such things as let users share reviews of favorite books, play Scrabble or poker with others online, or send virtual gifts to friends. Some apps are just for fun; others are the infrastructure for independent businesses that sell products and services or advertise. In September 2007, Facebook had more than two thousand software applications being used by at least one hundred people.~{ Vauhini Vara, “Facebook Gets Help from Its Friends,” Wall Street Journal, June 22, 2007. See also Riva Richmond, “Why So Many Want to Create Facebook Applications,” /{Wall Street Journal}/, September 4, 2007. }~ +={Facebook} + +2~ Open Content as a Gateway to Commercial Opportunities + +Of course, not every business can own a major platform, as Google, eBay, and Facebook do. Still, there are many other opportunities. One of the most popular is to use open platforms to attract an audience, and then strike a deal with an advertiser or commercial distributor, or sell premium services (“get discovered”). Another approach is to use open content to forge a spirited community to which things may be sold (“build a market on a commons”). +={eBay;Facebook+1;Google} + +!{/{Get discovered.}/}! This dynamic has been played out countless times on YouTube, MySpace, Facebook, and other high-traffic social networking sites. An unknown remix artist suddenly becomes famous when his track is discovered by a network swarm: the story of DJ Danger Mouse that we saw in chapter 6. A band attracts a huge following through viral word of mouth: the story of Jake Shapiro and Two Ton Shoe’s stardom in South Korea. There are even calculated scams to get discovered, like the lonelygirl15 series of videos purportedly shot by a teenage girl in her bedroom, which became a huge Internet sensation in 2006.~{ Joshua Davis, “The Secret World of Lonelygirl,” Wired, December 2006, at http://www.wired.com/wired/archive/14.12/lonelygirl.html. }~ +={DJ Danger Mouse;MySpace;YouTube;Shapiro, Jake;Two Ton Shoe;Internet:virtual word of mouth on;open business models:using open platforms to get discovered+15} + +As any television network will tell you, the capacity to aggregate audiences is worth a lot of money. The customary way of monetizing this talent is to sell advertising. Or one can parlay newfound name recognition into side deals with the mass media, which have always depended upon “star power” as a draw. Thus, Ana Marie Cox was able to parley her notoriety as a political gossip on her Wonkette blog into a job as Washington editor of /{Time}/ magazine. Perez Hilton, a Hollywood blogger who attracted a following, was offered a lucrative perch at the E! cable television channel. We saw in chapter 6 how producer Samuli Torssonen’s /{Star Wreck}/ attracted millions of Internet viewers, enabling him to strike a deal with Universal Studios to distribute a DVD version. With the same visions of stardom, or at least paying gigs, in mind, thousands of bands now have fan sites, music downloads, and banner ads on MySpace and other sites to promote themselves.~{ Elizabeth Holmes, “Famous, Online,” /{Wall Street Journal}/, August 8, 2006. }~ +={Cox, Ana Marie;Hilton, Perez;MySpace;Star Wreck Studios;Torssonen, Samuli} + +The CC NonCommercial license is one way to help pursue the “get discovered” business strategy. The license allows authors to seek a global Internet audience without having to cede rights to any commercial opportunities. It is not, however, a terribly reliable way to make money, which is why some artists, especially musicians, find fault with the implicit promise of the NC license. Many serious artists regard the NC license as too speculative a mechanism to get paid for one’s creative work. It is a fair complaint, as far as it goes. The real problem is the closed, highly concentrated music industry, which has a hammerlock on marketing, radio play, and distribution. Newcomers and mid-tier talent cannot get past the corporate gatekeepers to reach an audience, let alone make money. + +In an attempt to bridge the sharing economy with the market, and thereby open up some new channels of commercial distribution for commoners, the Creative Commons in late 2007 introduced a new protocol, CC+. The new project aims to make it easier for the owners of NC-licensed content to signal that agreements, products, or services beyond the scope of the CC licenses are on offer — for example, commercial licensing, warranties, or higherquality copies. A photographer who has hundreds of NC-licensed photos on Flickr would be able to continue to let people use those photos for noncommercial purposes — but through CC+, he could also sell licensing rights to those who want to use the photos for commercial purposes. CC+ is a metadata architecture and standard that allows third-party intermediaries to develop services for consummating commercial transactions. People can use CC+ as a simple “click-through” mechanism for acquiring commercial rights for music, photos, text, and other content. +={Creative Commons (CC):CC+, and+2} + +One of the earliest “copyright management” companies to take advantage of the CC+ standard was RightsAgent, a Cambridge, Massachusetts, company founded by Rudy Rouhana. RightsAgent essentially acts as a go-between for people who create NC-licensed works on the Web and those who wish to buy rights to use them for commercial purposes. Just as PayPal facilitates the exchange of money on the Internet, so RightsAgent aspires to be a paid intermediary for facilitating the sale of user-generated content. +={Rouhana, Rudy;RightsAgent} + +The rise of CC+ and associated companies brings to mind Niva Elkin-Koren’s warning that the Creative Commons licenses can be a slippery slope that merely promotes a property-oriented, transactional mentality — the opposite of the commons. On the other hand, many people operating in the noncommercial sharing economy, such as musicians and photographers, have long complained that, as much as they enjoy participating in the commons, they still need to earn a livelihood. +={Elkin-Koren, Niva;Creative Commons (CC) licenses:critics of} + +Revver is another company that has developed an ingenious way to promote the sharing of content, yet still monetize it based on the scale of its circulation. Revver is a Los Angeles–based startup that hosts user-generated video. All videos are embedded with a special tracking tag that displays an ad at the end. Like Google’s AdWords system, which charges advertisers for user “click-throughs” on ad links adjacent to Web content, Revver charges advertisers for every time a viewer clicks on an ad. The number of ad views can be tabulated, and Revver splits ad revenues 50-50 with video creators. Key to the whole business model is the use of the CC AttributionNonCommercial-No Derivatives license. The license allows the videos to be legally shared, but prohibits anyone from modifying them or using them for commercial purposes. +={Revver+2;Google;videos and film+2;Internet:videos and films on+2;World Wide Web:videos and film on+2} + +One of the most-viewed videos on Revver sparked a minor pop trend. It showed kids dropping Mentos candies into bottles of CocaCola, which produces an explosive chemical reaction. The video is said to have generated around $30,000.~{ Revver entry at Wikipedia, at http://en.wikipedia.org/wiki/Revver. }~ So is new media going to feature silly cat videos and stupid stunts? Steven Starr, a co-founder of Revver, concedes the ubiquity of such videos, but is quick to point to “budding auteurs like Goodnight Burbank, Happy Slip, Studio8 and LoadingReadyRun, all building audiences.” He also notes that online, creators “can take incredible risks with format and genre, can grow their own audience at a fraction of network costs, can enjoy free syndication, hosting, audience-building and ad services at their disposal.”~{ Interview with Steven Starr, “Is Web TV a Threat to TV?” Wall Street Journal, August 7, 2007, at http://online.wsj.com/article/SB118530221391976425.html. }~ +={Starr, Steven} + +Blip.tv is another video content-sharing Web site that splits ad revenues with video creators (although it is not automatic; users must “opt in”). Unlike many videos on YouTube and Revver, blip.tv tends to feature more professional-quality productions and serialized episodes, in part because its founders grew out of the “videoblogging” community. Blip.tv espouses an open business ethic, with shout-outs to “democratization, openness, and sustainability.” While there is a tradition for companies to spout their high-minded principles, blip.tv puts some bite into this claim by offering an open platform that supports many video formats and open metadata standards. And it allows content to be downloaded and shared on other sites. Users can also apply Creative Commons licenses to their videos, which can then be identified by CC-friendly search engines. For all these reasons, Lessig has singled out blip.tv as a “true sharing site,” in contrast to YouTube, which he calls a “faking sharing site” that “gives you tools to /{make}/ it seem as if there’s sharing, but in fact, all the tools drive traffic and control back to a single site.”~{ Lessig blog post, “The Ethics of Web 2.0,” October 20, 2006, at http://www.lessig.org/blog/archives/003570.shtml. }~ +={blip.tv+1;YouTube+1;Web 2.0:open business, and+3;open business models:open networks and;Lessig, Lawrence:open business sites, and+4} + +Lessig’s blog post on blip.tv provoked a heated response from blogger Nicholas Carr, a former executive editor of the /{Harvard Business Review}/. The contretemps is worth a close look because it illuminates the tensions between Web 2.0 as a business platform and Web 2.0 as a commons platform. In castigating YouTube as a “fake sharing site,” Carr accused Lessig of sounding like Chairman Mao trying to root out counterrevolutionary forces (that is, capitalism) with “the ideology of digital communalism.” +={Carr, Nicholas+2;Web 2.0:commons platform, as+3} + +_1 Like Mao, Lessig and his comrades are not only on the wrong side of human nature and the wrong side of culture; they’re also on the wrong side of history. They fooled themselves into believing that Web 2.0 was introducing a new economic system — a system of “social production” — that would serve as the foundation of a democratic, utopian model of culture creation. They were wrong. Web 2.0’s economic system has turned out to be, in effect if not intent, a system of exploitation rather than a system of emancipation. By putting the means of production into the hands of the masses but withholding from those same masses any ownership over the product of their work, Web 2.0 provides an incredibly efficient mechanism to harvest the economic value of the free labor provided by the very, very many and concentrate it into the hands of the very, very few. + +_1 The Cultural Revolution is over. It ended before it even began. The victors are the counterrevolutionaries. And they have $1.65 billion [a reference to the sale price of YouTube to Google] to prove it.~{ Nicholas G. Carr, “Web 2.0lier than Thou,” Rough Type blog, October 23, 2006. Joichi Ito has a thoughtful response in his blog, “Is YouTube Web 2.0?” October 22, 2006, at http://joi.ito.com/archives/2006/10/22/is_youtube_web_20.html; and Lessig responded to Carr in his blog, at http://lessig.org/blog/2006/10/stuck_in_the_20th_century_or_t.html. The “communism discourse” persists, and not just among critics of free culture. Lawrence Liang of CC India used this epigraph in a book on open-content licenses: “There is a specter haunting cultural production, the specter of open content licensing.” which he attributes to “Karl Marx (reworked for the digital era).” From Liang, /{Guide to Open Content Licenses}/ (Rotterdam, Netherlands: Piet Zwart Institute, Institute for Postgraduate Studies and Research, Willem de Kooning Academy Hogeschool, 2004). }~ + +Lessig’s response, a warm-up for a new book, /{Remix}/, released in late 2008, pointed out that there are really /{three}/ different economies on the Internet — commercial, sharing, and hybrid. The hybrid economy now emerging is difficult to understand, he suggested, because it “neither gives away everything, nor does it keep everything.” The challenge of open business models, Lessig argues, is to discover the “golden mean.” +={Lessig, Lawrence:Remix;Internet:hybrid economy enabled by+1|sharing economy of+1|commercial economy of+1} + +It can be hard to conceptualize a “hybrid sector” when we are accustomed to dividing the world into “private” and “public” sectors, and “profit-making” and “nonprofit” enterprises. Open business models quickly run up against deep-seated prejudices that associate property with “freedom” and sharing with “communism.” How can there be a middle ground? Although some like Nicholas Carr seem to hanker for the predatory enterprises of an earlier capitalism, only this time on Web 2.0 platforms, that is not likely to happen in a world of distributed computing. Power is too dispersed for predators to survive very long, and besides, the commoners are too empowered. + +!{/{ Build a market on a commons.}/}! A number of online business models are based on building communities of deep social affection and respect, and then using the community as a platform for selling merchandise, advertising, or products. Interestingly, some of the most successful “customer relationship” models revolve around music. The Grateful Dead’s strategy of building a business around a rabid fan base (discussed in chapter 6) occurred well before the Internet became prevalent. It is paradigmatic of the digital age, nonetheless. If the band had locked up its music and prohibited free taping of its concert performances and sharing of homemade tapes, it would have effectively weakened the fan base that sustained its business model. Sharing concert tapes actually made Deadheads more inclined to buy t-shirts, official music releases, and concert tickets because the tape sharing deepened the community’s identity and quasi-spiritual ethic. The Grateful Dead’s focus on touring as opposed to studio albums not only intensified the sharing ethic of its fan base, it obliged the band to “keep on truckin’ ” in order to keep earning money. +={commons:building a market on+11;open business models:building a market on a commons+11;communities:commons, and;Grateful Dead;music:market building on a commons+11} + +The Brazilian /{tecnobrega}/ music scene discussed briefly in chapter 7 is another example of artists making money through respectful, in-person relationships with their fans. In the town of Belém, Brazil, /{tecnobrega}/ artists release about four hundred CDs every year, but none are sold in stores; street vendors sell them for $1.50 apiece. The CDs function mostly as advertising for live “sound system” parties on the outskirts of town that attract as many as five thousand people and use state-of-the-art audio technology. Immediately following the performances, some artists also sell a significant number of “instant CDs” that are of better quality (and more expensive) than those sold in the streets. (Interestingly, street sales do not compete with after-concert sales.) +={Brazil:tecnobrega music scene in+6} + +“In their live presentations, the tecnobrega DJ’s usually acknowledge the presence of people from various neighborhoods, and this acknowledgement is of great value to the audience, leading thousands of buy copies of the recorded live presentation,” said Ronaldo Lemos of CC Brazil, who has studied Brazil’s record industry.~{ Interview with Ronaldo Lemos, September 15, 2006. }~ The same basic model is also at work in other grassroots musical genres in Brazil, such as baile funk, which originated in the shantytowns of Rio de Janeiro. +={Lemos da Silva, Ronaldo+4} + +Artists make most of their money from these live performances, not from CDs, said Lemos. Bands earn an average of $1,100 per solo performance at these events, and $700 when playing with other bands — this, in a region where the average monthly income is $350. Altogether, Lemos estimates that the sound system parties as a business sector earn $1.5 million per month, on fixed assets of $8 million. + +“The band Calypso has been approached several times by traditional record labels,” said Lemos, “but they turned down all the offers. The reason is that they make more money by means of the existing business model. In an interview with the largest Brazilian newspaper, the singer of the band said, ‘We do not fight the pirates. We have become big /{because}/ of piracy, which has taken our music to cities where they would never have been.’ ” Calypso has sold more than 5 million albums in Brazil and is known for attracting as many as fifty thousand people to its concerts, Lemos said.~{ Ronaldo Lemos, “From Legal Commons to Social Commons: Developing Countries and the Cultural Industry in the 21st Century,” 2006, at http://www.icommons.org/resources/from-legal-commons-to-social-commons-brazil-and-the-cultural-industry-1. See Paula Martini post on iCommons blog, “Over the Top: The New (and Bigger) Cultural Industry in Brazil,” September 28, 2007, at http://www.icommons.org/articles/over-the-top-thenew-and-bigger-cultural-industry-in-brazil. }~ +={piracy} + +Another highly successful open business model in the Brazilian music scene is TramaVirtual, an open platform on which more than 15,000 musicians have uploaded some 35,000 albums. Fans can then download the music for free. While this does not sound like a promising business proposition, it makes a lot of sense in the context of Brazil’s music marketplace. Major record labels release a minuscule number of new Brazilian music CDs each year, and they sell for about $10 to $15.~{ Ibid. }~ Only the cultured elite can afford music CDs, and the native musical talent — which is plentiful in Brazil — has no place to go. With such a constricted marketplace, TramaVirtual has become hugely popular by showcasing new and interesting music. +={TramaVirtual+2} + +TramaVirtual’s artistic and social cachet — itself the product of open sharing in a commons — has enabled it to develop a highly respected brand identity. “By exploiting the trademark,” said Lemos, “Trama has been able to create parallel businesses that work with music, but not in the same way that a record label does.”~{ Interview with Ronaldo Lemos, November 6, 2006. }~ For instance, Trama created a business that sponsors free concerts at universities under its trademark sponsorship. It then sells marketing rights at the concerts to cosmetic makers and car companies. Musicians have gained wide public exposure through Trama, and then used that association to negotiate international record and marketing deals for themselves. CSS (Cansei de Ser Sexy) won a record contract with the American label Sub Pop, for example. + +For the past five years, a related business model for music on an international scale has been emerging in Luxembourg. In only three years, Jamendo has amassed a huge international following in much the same way as TramaVirtual — by attracting music fans to its open platform for free music sharing. (The name /{Jamendo}/ is a mix of the words /{jam}/ and /{crescendo}/.) The site is not a music retailer but a repository for free music — with a business model overlay to pay the bills. Jamendo’s purpose is not to maximize returns to shareholders, in other words, but to service musicians and fans in a self-sustaining way. It makes most of its money from “tip jar” donations from fans and from advertising on the Web pages and streamed music. Ad revenues are shared 50-50 with artists, and any donations are passed along to individual artists, minus a small transaction fee. +={Jamendo+4} + +The Jamendo community is sizable and growing. By 2008 it had more than 357,000 active members from around the world. Part of the draw is the catalog of more than 10,000 albums, all free. Unlike Magnatune, Jamendo does not select the artists that are featured on its site; everyone is welcome to upload his or her music. To help fans identify music they like, the site offers many sophisticated tools. There are some 60,000 member-written reviews, custom playlists, community ratings of albums, and “folksonomy” tags for albums and songs.~[* Folksonomies, a cross of /{taxonomy}/ and /{folk}/, are essentially user-generated tags attached to each song and album, which enables categories of music to emerge from the “bottom up,” as fans regard the music, rather than through top-down marketing categories.]~ Fans are /{urged}/ to download music through peerto-peer networks such as BitTorrent and eMule because it reduces Jamendo’s bandwidth expenses. +={Magnatune;music:“folksonomy” tags in} + +“Users can listen, download, review, remix, and ‘widgetize,’” said Sylvain Zimmer, the founder and chief technology officer of Jamendo. As part of its commitment to musicians, the site has a forum for artists and listings of concerts, as well as open APIs~[* An API is an “application programming interface,” a set of protocols that enable a software application to operate on a computer operating system, library, or service. Many companies use proprietary APIs to retain control over who may develop applications that will interoperate with their software. Other companies that wish to encourage development of compatible applications— and thus promote a software ecosystem entwined with the operating system or service — use open APIs.]~ so the Jamendo ecosystem can be integrated into other software. +={Zimmer, Sylvain+2;APIs (application programming interfaces)} + +What’s striking about Jamendo is its nonchalant international feel, as if it were only natural to browse for “deathmetal,” “powerpop,” “hypnotique,” “ambient,” “psytrance,” and “jazzrock” on the same site. (These are just a few of the scores of folksonomy tags that can be used to browse the catalog.) “We are a Babel, not a label,” said Zimmer, who reports that India and Japan are heavy downloaders of Jamendo music. Complete, official versions of the site are available in French, the original language for the site, and now English and German. Incomplete versions of the site are available in Spanish, Polish, Portuguese, Russian, Turkish, Italian, Swedish, Czech, and Ukrainian. +={music:“folksonomy” tags in} + +Virtually all the albums on Jamendo use one or more of the six basic CC licenses. The CC ethic is a perfect match for the company’s community-driven business model, said Zimmer. “The best way of detecting CC-incompatible content and commercial uses of NC-licensed work is the community. The Creative Commons makes the community feel more confident and active.”~{ Sylvain Zimmer of Jamendo, presentation at iCommons Summit, Dubrovnik, Croatia, June 15, 2007. }~ He adds that if the site’s managers run too many ads, “the community will tell you.” + +2~ Commoners as Co-creators of Value +={open business models:value created in+13;value:creation of+13} + +For businesses operating on open networks, it is a mistake to regard people merely as customers; they are collaborators and even coinvestors. As more companies learn to interact closely with their customers, it is only natural that conversations about the product or service become more intimate and collaborative. The roles of the “consumer” and “producer” are starting to blur, leading to what some business analysts call the “prosumer”~{ Don Tapscott and Anthony D. Williams, /{Wikinomics: How Mass Collaboration Changes Everything}/ (New York Portfolio, 2006), chapter 5, “The Prosumers.” }~ and the “decentralized co-creation of value.”~{ David Bollier, /{The Rise of Collective Intelligence: Decentralized Co-creation of Value as a New Paradigm of Commerce and Culture}/ (Washington, DC: Aspen Institute Communications and Society Program, 2008).}~ The basic idea is that online social communities are becoming staging areas for the advancement of business objectives. Businesses see these communities as cost-effective ways to identify promising innovations, commercialize them more rapidly, tap into more reliable market intelligence, and nurture customer goodwill. + +Amateurs who share with one another through a loose social commons have always been a source of fresh ideas. Tech analyst Elliot Maxwell (citing Lessig) notes how volunteers helped compile the /{Oxford English Dictionary}/ by contributing examples of vernacular usage; how the Homebrew Computer Club in the San Francisco Bay area developed many elements of the first successful personal computer; and how sharing among auto enthusiasts helped generate many of the most important early automotive innovations.~{ Elliot Maxwell, “Open Standards, Open Source, and Open Innovation: Harnessing the Benefits of Openness,” /{Innovations:Technology, Governance, Globalization}/ 1, no. 3 (Summer 2006), at http://www.emaxwell.net, p. 150. }~ In our time, hackers were the ones who developed ingenious ways to use unlicensed electromagnetic spectrum as a commons, which we now know as Wi-Fi. They tinkered with the iPod to come up with podcasts, a new genre of broadcasting that commercial broadcasters now emulate.~{ Elliot E. Maxwell drew my attention to these examples in his excellent essay “Open Standards, Open Source, and Open Innovation.” }~ Numerous self-organized commons have incubated profitable businesses. Two movie buffs created the Internet Movie Database as separate Usenet newsgroups in 1989; six years later they had grown so large that they had merged and converted into a business that was later sold to Amazon.~{ Wikipedia entry, IMDB, at http://en.wikipedia.org/wiki/Internet_Movie_Database. }~ The Compact Disc Database was a free database of software applications that looks up information about audio CDs via the Internet. It was originally developed by a community of music fans as a shared database, but in 2000 it had grown big enough that it was sold and renamed Gracenote.~{ Wikipedia entry, CDDB, at http://en.wikipedia.org/wiki/CDDB. }~ +={Amazon;Gracenote;Homebrew Computer Club;iPod;Maxwell, Elliot;Oxford English Dictionary;Wi-Fi;hackers:community of;commons:sources of new ideas, as+11} + +A commons can be highly generative because its participants are tinkering and innovating for their own sake — for fun, to meet a challenge, to help someone out. Amateurs are not constrained by conventional business ideas about what may be marketable and profitable. They do not have to meet the investment expectations of venture capitalists and Wall Street. Yet once promising new ideas do surface in the commons, market players can play a useful role in supplying capital and management expertise to develop, improve, and commercialize an invention. + +Because online commons are such a rich source of new ideas, the most farsighted companies are trying to learn how they might be harnessed to help them innovate and compete more effectively. MIT professor Eric von Hippel is one of the foremost researchers of this process. His 2005 book /{Democratizing Innovation}/ describes how the leading participants in high-performance sports — extreme skiing, mountain biking, skateboarding, surfing, and hot-rodding — are forming “innovation communities” that work closely with manufacturers.~{ Eric von Hippel, /{Democratizing Innovation}/ (Cambridge, MA: MIT Press, 2005), available at http://mitpress.mit.edu/democratizing_innovation_pdf. }~ The most active practitioners of these sports are intimately familiar with the equipment and have their own imaginative ideas about what types of innovations the sport needs. Indeed, many of them have already jerry-rigged their own innovations — better cockpit ventilation in sailplanes, improved boot and bindings on snowboards, a method for cutting loose a trapped rope used by canyon climbers. For companies willing to listen to and collaborate with users, says von Hippel, “communities of interest are morphing into communities of creation and communities of production.” +={von Hippel, Eric+1} + +“Users that innovate can develop exactly what they want, rather than relying on manufacturers to act as their (often very imperfect) agents,” von Hippel writes. “Moreover, individuals users do not have to develop everything they need on their own: they can benefit from innovations developed and freely shared by others.”~{ Ibid., p. 1 }~ Besides finding empirical examples of this trend, von Hippel has developed a theoretical vocabulary for understanding how collaborative innovation occurs. He probes the user motivations for “free revealing” of their knowledge, the attractive economics that fuel “users’ low-cost innovation niches,” and the public policies that sometimes thwart user-driven innovation (patent rights for a field may be fragmented, anticopying restrictions such as the Digital Millennium Copyright Act may prevent user tinkering, etc.). +={Digital Millennium Copyright Act (DMCA) [1998]} + +User-driven innovation is not as esoteric as the “extreme sports” examples may suggest. It is, in fact, a growing paradigm. In one of the more celebrated examples, Lego, the Danish toymaker, invited some of its most fanatic users to help it redesign its Mindstorms robotics kit. The kits are meant to let kids (and adults) build a variety of customized robots out of a wild assortment of plastic Lego pieces, programmable software, sensors, and motors.~{ Tapscott and Williams, /{Wikinomics}/, pp. 130–31. }~ In 2004, when some Lego users reverse-engineered the robotic “brain” for the Mindstorms kit and put their findings on the Internet, Lego at first contemplated legal action. Upon reflection, however, Lego realized that hackers could be a valuable source of new ideas for making its forthcoming Mindstorms kit more interesting and cool. +={Lego+1;hackers:innovations by+1} + +Lego decided to write a “right to hack” provision into the Mindstorms software license, “giving hobbyists explicit permission to let their imaginations run wild,” as Brendan I. Koerner wrote in /{Wired}/ magazine. “Soon, dozens of Web sites were hosting thirdparty programs that help Mindstorms users build robots that Lego had never dreamed of: soda machines, blackjack dealers, even toilet scrubbers. Hardware mavens designed sensors that were far more sophisticated than the touch and light sensors included in the factory kit.”~{ Brendan I. Koerner, “Geeks in Toyland,” /{Wired}/, February 2006. }~ It turns out that not only are Lego fans happy to advise the company, the open process “engenders goodwill and creates a buzz among the zealots, a critical asset for products like Mindstorms that rely on word-of-mouth evangelism,” said Koerner. In the end, he concluded, the Mindstorm community of fanatics has done “far more to add value to Lego’s robotics kit than the company itself.” +={Koerner, Brendan I.;Internet:virtual word of mouth on} + +Another improbable success in distributed, user-driven innovation is Threadless, a Chicago-based t-shirt company. Threadless sells hundreds of original t-shirt designs, each of which is selected by the user community from among more than eight hundred designs submitted every week. The proposed designs are rated on a scale of one to five by the Web site’s more than 600,000 active users. Winners receive cash awards, recognition on the Web site, and their names on the t-shirt label. Every week, Threadless offers six to ten new t-shirts featuring the winning designs. +={Threadless+1} + +In 2006, the company sold more than 1.5 million t-shirts without any traditional kind of marketing. Its business model is so rooted in the user community that Threadless co-founders Jake Nickell and Jacob DeHart have declined offers to sell their t-shirts through conventional, big-name retailers. Threadless’s business model has helped it overcome two major challenges in the apparel industry, write Harvard Business School professor Karim R. Lakhani and consultant Jill A. Panetta — the ability “to attract the right design talent at the right time to create recurring fashion hits,” and the ability “to forecast sales so as to be better able to match production cycles with demand cycles.”~{ Karim R. Lakhani and Jill A. Panetta, “The Principles of Distributed Innovation,” Research Publication No. 2007-7, Berkman Center for Internet & Society, Harvard Law School, October 2007, at http://papers.ssrn.com/abstract_id=1021034. See also Darren Dahl, “Nice Threads,” /{Southwest Airlines Spirit}/, December 2006. }~ +={DeHart, Jacob;Nickell, Jake;Lakhani, Karim R.;Panetta, Jill A.} + +A number of companies have started successful enterprises based on the use of wikis, the open Web platforms that allow anyone to contribute and edit content and collaborate. Evan Prodromou, the founder of Wikitravel, a free set of worldwide travel guides, has identified four major types of wiki businesses: service providers who sell access to wikis (Wikispace, wetpaint, PBwiki); content hosters of wikis (wikiHow, Wikitravel, Wikia); consultants who advise companies how to run their own wikis (Socialtext); and content developers (WikiBiz, an offshoot of Wikipedia). +={Prodromou, Evan+1;wikis+1} + +Since the success of a wiki-based business depends upon honoring the integrity of wiki users, Prodromou scorns what he sees as the backhanded strategies of business models based on “wikinomics” and “crowdsourcing.” He sees such models as sly attempts to get “suckers” to do free work for the entrepreneur owning the business. A sustainable commercial wiki, said Prodromou at a conference, respects the community of users and does not try to exploit them. It strives to fulfill a “noble purpose” for users and demonstrate in a transparent way that it offers value. Any hint of trickery or calculation begins to sow distrust and erode the community. Yet any wiki-based business must be able to set boundaries that allow the owners to make responsible business decisions; those decisions, however, must respect the wiki community’s values.~{ Evan Prodromou presentation, “Commercialization of Wikis: Open Community that Pays the Bills,” South by Southwest Interactive conference, March 10, 2007. }~ + +It is hard to predict what new models of “decentralized cocreation of value” will take root and flourish, but the experiments are certainly proliferating. Staples, the office supplies store, now hosts a contest inviting the public to suggest inventions that Staples can develop and sell under the its brand name.~{ William J. Bulkeley, “Got a Better Letter Opener?” /{Wall Street Journal}/, July 13, 2006. }~ A number of massmarket advertisers have hosted competitions inviting users to create ads for their products. One of the more interesting frontiers in userdriven innovation is tapping the audience for investment capital. +={Staples} + +SellaBand (“You are the record company”) is a Web site that invites bands to recruit five thousand “Believers” to invest $10 apiece in their favorite bands; upon reaching the $50,000 mark, a band can make a professional recording, which is then posted on the SellaBand site for free downloads. Bands and fans can split advertising revenues with SellaBand.~{ http://www.sellaband.com. }~ Robert Greenwald, the activist documentary filmmaker, used e-mail solicitations, social networks, and the blogosphere to ask ordinary citizens to help finance his 2006 film /{Iraq for Sale: The War Profiteers}/.~{ William Booth, “His Fans Greenlight the Project,” /{Washington Post}/, August 20, 2006. }~ +={Greenwald, Robert;SellaBand} + +2~ Reintegrating the Sharing and Commercial Economies + +If there is persistent skepticism about the very idea of open business models, from both business traditionalists focused on the bottom line and commoners committed to sharing, it is because the commons and the commercial economy seem to represent such divergent moral values and social orders. One depends upon reciprocal exchanges of monetary value, with the help of individual property rights and contracts; the other depends upon the informal social circulation of value, without individual property rights or quid pro quos. A market is impersonal, transactional, and oriented to a bottom line; a commons tends to be personal and social and oriented to continuous relationships, shared values, and identity. + +Yet, as the examples above show, the market and the commons interpenetrate each other, yin/yang style. Each “adds value” to the other in synergistic ways. Historically, this has always been true. Adam Smith, the author of /{The Wealth of Nations}/, was also the author of /{The Theory of Moral Sentiments}/, about the moral and social norms that undergird market activity. The market has always depended upon the hidden subsidies of the commons (folk stories, vernacular motifs, amateur creativity) to drive its engine of wealth creation. And the commons builds its sharing regimes amid the material wealth produced by the market (free software is developed on commercially produced computers). +={Smith, Adam:The Theory of Moral Sentiments} + +What has changed in recent years is our perceptions. The actual role of the commons in creative endeavors has become more culturally legible. For businesses to function well on Web 2.0 platforms, they must more consciously integrate social and market relationships in functional, sustainable ways. If the results sometimes seem novel, if not bizarre, it is partly because networking technologies are making us more aware that markets are not ahistorical, universal entities; they are rooted in social relationships. Open business models recognize this very elemental truth, and in this sense represent a grand gambit to go back to the future. +={open business models:open networks and;Web 2.0:open business, and} + +1~ 11 SCIENCE AS A COMMONS +={Science Commons+90} + +/{Web 2.0 tools, open access, and CC licenses are helping to accelerate scientific discovery.}/ + +It was one of those embarrassing episodes in science: Two sets of researchers published papers in a German organic chemistry journal, /{Angewandte Chemie}/, announcing that they had synthesized a strange new substance with “12-membered rings.” Then, as blogger and chemist Derek Lowe tells the story, “Professor Manfred Cristl of Wurzburg, who apparently knows his pyridinium chemistry pretty well, recognized this as an old way to make further pyridinium salts, not funky twelve-membered rings. He recounts how over the last couple of months he exchanged awkward emails with the two sets of authors, pointing out that they seem to have rediscovered a 100-year-old reaction. . . .”~{ Derek Lowe, “Neat! Wish It Were True!” /{In the Pipeline}/ [blog], November 29, 2007, at http://pipeline.corante.com. See also, Donna Wentworth, “Why We Need to Figure Out What We Already Know,” Science Commons blog, January 4, 2008, at http://sciencecommons.org/weblog/archives/2008/01/04/why-we-need-to-figure-out-what-we-already-know. }~ +={Lowe, Derek} + +In the Internet age, people generally assume that these kinds of things can’t happen. All you have to do is run a Web search for “pyridinium,” right? But as scientists in every field are discovering, the existence of some shard of highly specialized knowledge does not necessarily mean that it can be located or understood. After all, a Google search for “pyridinium” turns up 393,000 results. And even peer reviewers for journals (who may have been partly at fault in this instance) have the same problem as any researcher: the unfathomable vastness of the scientific and technical literature makes it difficult to know what humankind has already discovered. + +Paradoxically, even though academic science played the central role in incubating the Internet (in conjunction with the military), it has not fared very well in developing it to advance research. Most search engines are too crude. Journal articles can be expensive and inaccessible. They do not link to relevant Web resources or invite reader comment. Nor do they contain metadata to facilitate computer-based searches, collaborative filtering, and text mining. Scientific databases are plentiful but often incompatible with one another, preventing researchers from exploring new lines of inquiry. Lab researchers who need to share physical specimens still have to shuffle papers through a bureaucratic maze and negotiate with lawyers, without the help of eBay- or Craigslist-like intermediaries. + +“The World Wide Web was designed in a scientific laboratory to facilitate access to scientific knowledge,” observed Duke law professor James Boyle in 2007. “In every other area of life — commercial, social networking, pornography — it has been a smashing success. But in the world of science itself? With the virtues of the open Web all around us, we have proceeded to build an endless set of walled gardens, something that looks a lot like Compuserv or Minitel and very little like a world wide web for science.”~{ James Boyle, “The Irony of a Web Without Science,” /{Financial Times}/, September 4, 2007, at http://www.ft.com/cms/s/2/39166e30-5a7f-11dc-9bcd0000779fd2ac.html. }~ +={Boyle, James:Science Commons, and;science:scientific knowledge+2} + +Therein lies a fascinating, complicated story. To be sure, various scientific bodies have made great progress in recent years in adapting the principles of free software, free culture, and Web 2.0 applications to their research. Open-access journals, institutional repositories, specialty wikis, new platforms for collaborative research, new metatagging systems: all are moving forward in different, fitful ways. Yet, for a field of inquiry that has long honored the ethic of sharing and “standing on the shoulders of giants,” academic science has lagged behind most other sectors. + +Part of the problem is the very nature of scientific knowledge. While the conventional Web works fairly well for simple kinds of commerce and social purposes, the Research Web for science requires a more fine-grained, deliberately crafted structure.~{ John Wilbanks, director of the Science Commons, introduced me to this term. }~ Science involves /{practices}/, after all; it is not just about information. The “wisdom of the crowds” is not good enough. Scientific knowledge tends to be significantly more specialized and structured than cultural information or product recommendations. The Web systems for organizing, manipulating, and accessing that knowledge, accordingly, need to be more hierarchical and structured, often in quite specific ways depending upon the discipline. A scientist cannot just type “signal transduction genes in pyramidal neurons” into a search engine; she needs to be able to locate specific genes and annotations of them. Data may be strewn across dozens of different data systems, and those are not likely to be interoperable. This means that technical standards need to be coordinated, or some metasystem developed to allow different data reservoirs to communicate with one another. A scientist must be able to use computers to browse and organize a vast literature. And so on. + +Much as scientists would like to build new types of Internet-based commons, they have quickly run up against a thicket of interrelated problems: overly broad copyright and patent limitations; access and usage restrictions by commercial journal publishers and database owners; and university rules that limit how cell lines, test animals, bioassays, and other research tools may be shared. In a sense, scientists and universities face a classic collective-action problem. Everyone would clearly be better off if a more efficient infrastructure and enlightened social ethic could be adopted — but few single players have the resources, incentive, or stature to buck the prevailing order. There is no critical mass for instigating a new platform for scientific inquiry and “knowledge management.” +={copyright law:property rights, and+1|science, in;property rights:copyright law, and+1;science:copyright and patent restrictions in+1} + +Like so many other sectors confronting the Great Value Shift, science in the late 1990s found itself caught in a riptide. The proprietarian ethic of copyright and patent law was intensifying (as we saw in chapter 2), spurring scientists and universities to claim private ownership in knowledge that was previously treated as a shared resource.~{ See, e.g., Jennifer Washburn, /{University Inc.: The Corporate Corruption of Higher Education}/ (New York: Basic Books, 2005); Derek Bok, /{Universities in the Marketplace: The Commercialization of Higher Education}/ (Princeton, NJ: Princeton University Press, 2003); Sheldon Krimsky, /{Science in the Private Interest: Has the Lure of Profits Corrupted Biomedical Research}/ (New York: Rowman & Littlefield, 2003); and Corynne McSherry, /{Who Owns Academic Work? Battling for Control of Intellectual Property}/ (Cambridge, MA: Harvard University Press, 2001). }~ Yet at the same time the Internet was demonstrating the remarkable power of open sharing and collaboration. Even as market players sought to turn data, genetic knowledge, and much else into private property rights, a growing number of scientists realized that the best ideals of science would be fulfilled by recommitting itself to its core values of openness and sharing. Open platforms could also strengthen the social relationships that are essential to so much scientific inquiry.~{ John Seely Brown and Paul Duguid, /{The Social Life of Information}/ (Cambridge, MA: Harvard Business School Pulishing, 2000). See also, e.g., Jane E. Fountain, “Social Capital: Its Relationship to Innovation in Science and Technology,” /{Science and Public Policy}/ 25, no. 2 (April 1998), pp. 103–15. }~ +={Great Value Shift} + +Perhaps the most salient example of the power of open science was the Human Genome Project (HGP), a publicly funded research project to map the 3 billion base pairs of the human genome. Many other scientific projects have been attracted by the stunning efficacy and efficiency of the open research model. For example, the HapMap project is a government-supported research effort to map variations in the human genome that occur in certain clusters, or haplotypes. There is also the SNP Consortium, a public-private partnership seeking to identify single-nucleotide polymorphisms (SNPs) that may be used to identify genetic sources of disease. Both projects use licenses that put the genomic data into the public domain. +={Human Genome Project (HGP);science:Human Genome Project} + +A 2008 report by the Committee for Economic Development identified a number of other notable open research projects.~{ Committee for Economic Development, /{Harnessing Openness to Transform American Health Care}/ (Washington, DC: CED, 2008). }~ There is the PubChem database, which amasses data on chemical genomics from a network of researchers; the Cancer Biomedical Informatics Grid, a network of several dozen cancer research centers and other organizations that shares data, research tools, and software applications; and TDR Targets a Web clearinghouse sponsored by the World Health Organization that lets researchers share genetic data on neglected diseases such as malaria and sleeping sickness. It is telling that Bill Gates, who in his commercial life is a staunch advocate of proprietary control of information, has been a leader, through his Bill & Melinda Gates Foundation, in requiring research grantees to share their data. +={Gates, Bill} + +There has even been the emergence of open-source biotechnology, which is applying the principles of free software development to agricultural biotech and pharmaceutical development.~{ See, e.g., Rockefeller Foundation, “2005 Bellagio Meeting on Open Source Models of Collaborative Innovation in the Life Sciences” [report], Bellagio, Italy, September 2005. See also Janet Elizabeth Hope, “Open Source Biotechnology,” Ph.D. diss., Australian National University, December 2004. }~ Richard Jefferson, the founder of Cambia, a nonprofit research institute in Australia, launched the “kernel” of what he calls the first opensource biotech toolkit. It includes patented technologies such as TransBacter, which is a method for transferring genes to plants, and GUSPlus, which is a tool for visualizing genes and understanding their functions.~{ Interview with Richard Jefferson, September 7, 2006. See also http://www.cambia.org. }~ By licensing these patented research tools for open use, Jefferson hopes to enable researchers anywhere in the world— not just at large biotech companies or universities — to develop their own crop improvement technologies. +={Jefferson, Richard} + +2~ The Viral Spiral in Science + +Sociologist Robert Merton is often credited with identifying the social values and norms that make science such a creative, productive enterprise. In a notable 1942 essay, Merton described scientific knowledge as “common property” that depends critically upon an open, ethical, peer-driven process.~{ Robert Merton, “Science and Democratic Social Structure,” in /{Social Theory and Social Structure}/, 3d ed. (New York: Free Press, 1968), pp. 604–15. }~ Science is an engine of discovery precisely because research is available for all to see and replicate. It has historically tried to keep some distance from the marketplace for fear that corporate copyrights, patents, or contractual agreements will lock up knowledge that should be available to everyone, especially future scientists.~{ Richard R. Nelson, “The Market Economy and the Scientific Commons,” /{Research Policy}/ 33, no. 3 (April 2004), pp. 455–71. See also Karim R. Lakhani et al., “The Value of Openness in Scientific Problem Solving,” Harvard Business School Working Paper 07-050, January 2007, at http://www.hbs.edu/research/pdf/07-050.pdf. }~ Secrecy can also make it difficult for the scientific community to verify research results. +={Merton, Robert;science:cientific knowledge+2} + +Although scientific knowledge eventually becomes publicly available, it usually flows in semi-restricted ways, at least initially, because scientists usually like to claim personal credit for their discoveries. They may refuse to share their latest research lest a rival team of scientists gain a competitive advantage. They may wish to claim patent rights in their discoveries. + +So scientific knowledge is not born into the public sphere, but there is a strong presumption that it ought to be treated as a shared resource as quickly as possible. As law scholar Robert Merges noted in 1996, “Science is not so much given freely to the public as shared under a largely implicit code of conduct among a more or less well identified circle of similarly situated scientists. In other words . . . science is more like a limited-access commons than a truly open public domain.”~{ Robert Merges, “Property Rights Theory and the Commons: The Case of Scientific Research,” /{Social Philosophy and Policy}/ 13, no. 2 (Summer 1996), pp. 145–61. }~ In certain disciplines, especially those involving large capital equipment such as telescopes and particle accelerators, the sharing of research is regarded as a kind of membership rule for belonging to a club. +={Merges, Robert} + +As Web 2.0 innovations have demonstrated the power of the Great Value Shift, the convergence of open source, open access, and open science has steadily gained momentum.~{ John Willinsky, “The Unacknowledged Convergence of Open Source, Open Access and Open Science,” /{First Monday}/ 10, no. 8 (August 2005), at http://firstmonday.org/issues/issue10_8/willinsky/index.html. }~ Creative Commons was mindful of this convergence from its beginnings, but it faced formidable practical challenges in doing anything about it. “From the very first meetings of Creative Commons,” recalled law professor James Boyle, a CC board member, “we thought that science could be the killer app. We thought that science could be the place where Creative Commons could really make a difference, save lives, and have a dramatic impact on the world. There is massive, unnecessary friction in science and we think we can deal with it. Plus, there’s the Mertonian ideal of science, with which Creative Commons couldn’t fit more perfectly.”~{ Interview with James Boyle, August 15, 2006. }~ +={Merton, Robert;Boyle, James:Science Commons, and+1;Great Value Shift;Web 2.0:Great Value Shift, and} + +But despite its early interest in making the Web more research-friendly, Creative Commons realized that science is a special culture unto itself, one that has so many major players and niche variations that it would be foolhardy for an upstart nonprofit to try to engage with it. So in 2002 Creative Commons shelved its ambitions to grapple with science as a commons, and focused instead on artistic and cultural sectors. By January 2005, however, the success of the CC licenses emboldened the organization to revisit its initial idea. As a result of deep personal engagement by several Creative Commons board members — computer scientist Hal Abelson, law professors James Boyle and Michael Carroll, and film producer Eric Saltzman — Creative Commons decided to launch a spin-off project, Science Commons. The new initiative would work closely with scientific disciplines and organizations to try to build what it now calls “the Research Web.” +={Abelson, Hall:CC board, on;Carroll, Michael W.;Saltzman, Eric;Science Commons:CC Commons spinoff, and+5} + +Science Commons aims to redesign the “information space” — the technologies, legal rules, institutional practices, and social norms — so that researchers can more easily share their articles, datasets, and other resources. The idea is to reimagine and reinvent the “cognitive infrastructures” that are so critical to scientific inquiry. Dismayed by the pressures exerted by commercial journal publishers, open-access publishing advocate Jean-Claude Guédon has called on librarians to become “epistemological engineers.”~{ Jean-Claude Guédon, “In Oldenburg’s Long Shadow: Librarians, Research Scientists, Publishers and the Control of Scientific Publishing,” at http://www.arl.org/resources/pubs/mmproceedings/138guedon.shtml. }~ They need to design better systems (technical, institutional, legal, and social) for identifying, organizing, and using knowledge. The payoff? Speedier research and greater scientific discovery and innovation. It turns out that every scientific discipline has its own special set of impediments to address. The recurring problem is massive, unnecessary transaction costs. There is an enormous waste of time, expense, bureaucracy, and logistics in acquiring journal articles, datasets, presentations, and physical specimens. +={Science Commons:libraries, and+5;science:transaction costs in+1;transaction costs:in science+1;libraries:Science Commons, and} + +If transaction costs could be overcome, scientists could vastly accelerate their research cycles. They could seek answers in unfamiliar bodies of research literature. They could avoid duplicating other people’s flawed research strategies. They could formulate more imaginative hypotheses and test them more rapidly. They could benefit from a broader, more robust conversation (as in free software — “with enough eyes, all bugs are shallow”) and use computer networks to augment and accelerate the entire scientific process. + +That is the vision of open science that Science Commons wanted to address in 2005. It recognized that science is a large, sprawling world of many institutional stakeholders controlling vast sums of money driving incommensurate agendas. In such a milieu, it is not easy to redesign some of the most basic processes and norms for conducting research. Science Commons nonetheless believed it could play a constructive role as a catalyst. + +It was fortunate to have some deep expertise not just from its board members, but from two Nobel Prize winners on its scientific advisory panel (Sir John Sulston and Joshua Lederberg) and several noted scholars (patent scholar Arti Rai, innovation economist Paul David, and open-access publishing expert Michael B. Eisen). The director of Science Commons, John Wilbanks, brought a rare mix of talents and connections. He was once a software engineer at the World Wide Web Consortium, specializing in the Semantic Web; he had founded and run a company dealing in bioinformatics and artificial intelligence; he had worked for a member of Congress; and he was formerly assistant director of the Berkman Center at Harvard Law School. +={David, Paul;Eisen, Michael B.;Lederberg, Joshua;Rai, Arti;Sulston, Sir John;Wilbanks, John+1} + +After obtaining free office space at MIT, Wilbanks set off to instigate change within the scientific world — and then get out of the way. “We’re designing Science Commons to outstrip ourselves,” Wilbanks told me. “We don’t want to control any of this; we’re designing it to be decentralized. If we try to control it, we’ll fail.” + +With a staff of seven and a budget of only $800,000 in 2008, Science Commons is not an ocean liner like the National Academy of Science and the National Science Foundation; it’s more of a tug-boat. Its strategic interventions try to nudge the big players into new trajectories. It is unencumbered by bureaucracy and entrenched stakeholders, yet it has the expertise, via Creative Commons, to develop standard licensing agreements for disparate communities. It knows how to craft legal solutions that can work with technology and be understood by nonlawyers. + +In 2006, Science Commons embarked upon three “proof of concept” projects that it hopes will be models for other scientific fields. The first initiative, the Scholar’s Copyright Project, aspires to give scientists the “freedom to archive and reuse scholarly works on the Internet.” It is also seeking to make the vast quantities of data on computerized databases more accessible and interoperable, as a way to advance scientific discovery and innovation. +={Scholar’s Copyright Project;Science Commons:Scholar’s Copyright Project, and} + +A second project, the Neurocommons, is a bold experiment that aims to use the Semantic Web to make a sprawling body of neurological research on the Web more accessible. The project is developing a new kind of Internet platform so that researchers will be able to do sophisticated searches of neuroscience-related journal articles and explore datasets across multiple databases. +={Neurocommons;Science Commons:Neurocommons, and the} + +Finally, Science Commons is trying to make it cheaper and easier for researchers to share physical materials such as genes, proteins, chemicals, tissues, model animals, and reagents, which is currently a cumbersome process. The Biological Materials Transfer Project resembles an attempt to convert the pony express into a kind of Federal Express, so that researchers can use an integrated electronic data system to obtain lab materials with a minimum of legal complications and logistical delays. +={Biological Materials Transfer Project} + +In many instances, Science Commons has been a newcomer to reform initiatives already under way to build open repositories of scientific literature or data. One of the most significant is the openaccess publishing movement, which has been a diverse, flourishing effort in academic circles since the 1990s. It is useful to review the history of the open access (OA) movement because it has been an important pacesetter and inspiration for the open-science ethic. +={education:open access movement;open access (OA) movement+22;Science Commons:open access movement, and} + +2~ The Open-Access Movement +={open access (OA) movement+19;Science Commons:open access movement, and+19} + +The open-access movement has a fairly simple goal: to get the scientific record online and available to everyone. It regards this task as one of the most fundamental challenges in science. Open-access publishing generally consists of two modes of digital access — openaccess archives (or “repositories”) and open-access journals. In both instances, the publisher or host institution pays the upfront costs of putting material on the Web so that Internet users can access the literature at no charge.~[* “Open access” can be a confusing term. In the context of a rivalrous, depletable natural resource like timber or grazing land, an open-access regime means that anyone can use and appropriate the resource, resulting in its overexploitation and ruin. An /{open-access regime}/ is not the same as a /{commons}/, however, because a commons does have rules, boundaries, sanctions against free riders, etc., to govern the resource. However, in the context of an infinite, nonrivalrous resource like information, which can be copied and distributed at virtually no cost, an open-access regime does not result in overexploitation of the resource. For this reason, open access in an Internet context is often conflated with the commons — even though “open access,” in a natural resource context, tends to produce very different outcomes.]~ + +The appeal of OA publishing stems from the Great Value Shift described in chapter 5. “OA owes its origin and part of its deep appeal to the fact that publishing to the Internet permits both wider dissemination and lower costs than any previous form of publishing,” writes Peter Suber, author of /{Open Access News}/ and a leading champion of OA.~{ http://www.earlham.edu/~peters/fos/fosblog.html. }~ “The revolutionary conjunction is too good to pass up. But even lower costs must be recovered if OA is to be sustainable.” In most cases, publishing costs are met by scientific and academic institutions and/or by subsidies folded into research grants. Sometimes an OA journal will defray its publishing costs by charging authors (or their grant funders) a processing fee for articles that they accept. +={Great Value Shift;Suber, Peter} + +Just as free software and music downloads have disrupted their respective industries, so OA publishing has not been a welcome development among large academic publishers such as Elsevier, Springer, Kluwer, and Wiley. Online publishing usually costs much less than traditional print publishing and it allows authors to retain control over their copyrights. Both of these are a big incentive for disciplines and universities to start up their own OA journals. In addition, OA publishing makes it easier for research to circulate, and for authors to reach larger readerships. This not only augments the practical goals of science, it bolsters the reputation system and open ethic that science depends upon. + +Commercial publishers have historically emphasized their shared interests with scholars and scientists, and the system was amicable and symbiotic. Academics would produce new work, validate its quality through peer review, and then, in most cases, give the work to publishers at no charge. Publishers shouldered the expense of editorial production, distribution, and marketing and reaped the bulk of revenues generated. The arrangement worked fairly well for everyone until journal prices began to rise in the early 1970s. Then, as subscription rates continued to soar, placing unbearable burdens on university libraries in the 1990s, the Internet facilitated an extremely attractive alternative: open-access journals. Suddenly, conventional business models for scholarly publishing had a serious rival, one that shifts the balance of power back to scientists and their professional communities. + +Publishers have long insisted upon acquiring the copyright of journal articles and treating them as “works for hire.” This transfer of ownership enables the publisher, not the author, to determine how a work may circulate. Access to an article can then be limited by the subscription price for a journal, the licensing fees for online access, and pay-per-view fees for viewing an individual article. Publishers may also limit the reuse, republication, and general circulation of an article by charging high subscription or licensing fees, or by using digital rights management. If a university cannot afford the journal, or if a scholar cannot afford to buy individual articles, research into a given topic is effectively stymied. + +Open-access champion John Willinsky notes, “The publishing economy of scholarly journals is dominated by a rather perverse property relation, in which the last investor in the research production chain — consisting of university, researcher, funding agency and /{publisher}/ — owns the resulting work outright through a very small investment in relation to the work’s overall cost and value.”~{ Willinsky, “The Unacknowledged Convergence.” }~ Scientists and scholars virtually never earn money from their journal articles, and only occasionally from their books. Unlike commercial writers, this is no problem for academics, whose salaries are intended to free them to study all sorts of niche interests despite the lack of “market demand.” Their works are not so much “intellectual property” that must yield maximum revenues as “royaltyfree literature,” as Peter Suber calls it. Academics write and publish to contribute to their fields and enhance their standing among their peers. +={Suber, Peter;Willinsky, John} + +Not surprisingly, many commercial publishers regard OA publishing as a disruptive threat. It can, after all, subvert existing revenue models for scholarly publishing. This does not mean that OA publishing cannot support a viable business model. Much of OA publishing is sustained through “author-side payments” to publishers. In certain fields that are funded by research grants, such as biomedicine, grant makers fold publishing payments into their grants so that the research can be made permanently available in open-access journals. A leading commercial publisher, BioMed Central, now publishes over 140 OA journals in this manner. Hindawi Publishing Corporation, based in Cairo, Egypt, publishes more than one hundred OA journals and turns a profit. And Medknow Publications, based in Mumbai, India, is also profitable as a publisher of more than forty OA journals. + +It remains an open question whether the OA business model will work in fields where little research is directly funded (and thus upfront payments are not easily made). As Suber reports, “There are hundreds of OA journals in the humanities, but very, very few of them charge a fee on the author’s side; most of them have institutional subsidies from a university say, or a learned society.”~{ Interview with Peter Suber, June 28, 2006. }~ Yet such subsidies, in the overall scheme of things, may be more attractive to universities or learned societies than paying high subscription fees for journals or online access. +={Suber, Peter+1} + +The tension between commercial publishers and academic authors has intensified over the past decade, fueling interest in OA alternatives. The most salient point of tension is the so-called “serials crisis.” From 1986 to 2006, libraries that belong to the Association of Research Libraries saw the cost of serial journals rise 321 percent, or about 7.5 percent a year for twenty consecutive years.~{ Association of Research Libraries, /{ARL Statistics}/ 2005–06, at http://www.arl.org/stats/annualsurveys/ar/stats/arlstats06.shtml. }~ This rate is four times higher than the inflation rate for those years. Some commercial journal publishers reap profits of nearly 40 percent a year.~{ Peter Suber, “Creating an Intellectual Commons through Open Access,” in Charlotte Hess and Elinor Ostrom, eds., /{Understanding Knowledge as a Commons: From Theory to Practice}/ (Cambridge, MA: MIT Press, 2007), p. 175. }~ By 2000 subscription rates were so crushing that the Association of American Universities and the Association of Research Libraries issued a joint statement that warned, “The current system of scholarly publishing has become too costly for the academic community to sustain.”~{ Association of Research Libraries, “Tempe Principles for Emerging Systems of Scholarly Publishing,” May 10, 2000, at http://www.arl.org/resources/pubs/tempe/index.shtml. }~ Three years later, the high price of journals prompted Harvard, the University of California, Cornell, MIT, Duke, and other elite research universities to cancel hundreds of journal subscriptions — a conspicuous act of rebellion by the library community. +={libraries:“serials crisis”, and|Science Commons, and;Science Commons:libraries, and} + +As journal prices have risen, the appeal of OA publishing has only intensified. Unfortunately, migrating to OA journals is not simply an economic issue. Within academia, the reputation of a journal is deeply entwined with promotion and tenure decisions. A scientist who publishes an article in /{Cell}/ or /{Nature}/ earns far more prestige than she might for publishing in a little-known OA journal. + +So while publishing in OA journals may be economically attractive, it flouts the institutional traditions and social habits that scientists have come to rely on for evaluating scientific achievement. The OA movement’s challenge has been to document how OA models can help a university, and so it has collaborated with university administrators to showcase exemplary successes and work out new revenue models. It is urging promotion and tenure committees, for example, to modify their criteria to stop discriminating against new journals just because they are new, and hence to stop discriminating against OA journals (which are all new). Much of this work has fallen to key OA leaders like the Open Society Institute, the Hewlett Foundation, Mellon Foundation and the library-oriented SPARC (Scholarly Publishing and Academic Resources Coalition) as well as individuals such as John Willinsky, Jean-Claude Guédon, Stevan Harnad, and Peter Suber. +={Suber, Peter;Willinsky, John;Guédon, Jean-Claude;Harnad, Stevan} + +One of the first major salvos of the movement came in 2000, when biomedical scientists Harold E. Varmus, Patrick O. Brown, and Michael B. Eisen called on scientific publishers to make their literature available through free online public archives such as the U.S. National Library of Medicine’s PubMed Central. Despite garnering support from nearly 34,000 scientists in 180 countries, the measure did not stimulate the change sought. It did alert the scientific world, governments, and publishers about the virtues of OA publishing, however, and galvanized scientists to explore next steps. +={Brown, Patrick O.;Varmus, Harold E.} + +At the time, a number of free, online peer-reviewed journals and free online archives were under way.~{ http://www.earlham.edu/~peters/fos/timeline.htm. }~ But much of the momentum for organized OA movement began in 2001, when the Open Society Institute convened a group of leading librarians, scientists, and other academics in Hungary. In February 2002 the group released the Budapest Open Access Initiative, a statement that formally describes “open access” as the freedom of users to “read, download, copy, distribute, print, search or link to the full texts of . . . articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal or technical barriers other than those inseparable from gaining access to the Internet itself.”~{ The Budapest Open Access Initiative can be found at http://www.soros.org/openaccess. }~ Two subsequent statements, the Bethesda Declaration and the Berlin Declaration, in June 2003 and October 2003, respectively, expanded upon the definitions of open access and gave the idea new prominence. (Suber calls the three documents the “BBB definition” of open access.)~{ http://www.earlham.edu/~peters/fos/overview.htm. }~ +={Suber, Peter;Budapest Open Access Initiative (2002);libraries:open access movement, and} + +Creative Commons licenses have been critical tools in the evolution of OA publishing because they enable scientists and scholars to authorize in advance the sharing, copying, and reuse of their work, compatible with the BBB definition. The Attribution (BY) and Attribution-Non-Commercial (BY-NC) licenses are frequently used; many OA advocates regard the Attribution license as the preferred choice. The protocols for “metadata harvesting” issued by the Open Archives Initiative are another useful set of tools in OA publishing. When adopted by an OA journal, these standardized protocols help users more easily find research materials without knowing in advance which archives they reside in, or what they contain. + +There is no question that OA is transforming the market for scholarly publishing, especially as pioneering models develop. The Public Library of Science announced its first two open-access journals in December 2002. The journals represented a bold, high-profile challenge by highly respected scientists to the subscription-based model that has long dominated scientific publishing. Although Elsevier and other publishers scoffed at the economic model, the project has expanded and now publishes seven OA journals, for biology, computational biology, genetics, pathogens, and neglected tropical diseases, among others. + +OA received another big boost in 2004 when the National Institutes for Health proposed that all NIH-funded research be made available for free one year after its publication in a commercial journal. The $28 billion that the NIH spends on research each year (more than the domestic budget of 142 nations!) results in about 65,000 peer-reviewed articles, or 178 every day. Unfortunately, commercial journal publishers succeeded in making the proposed OA policy voluntary. The battle continued in Congress, but it became clear that the voluntary approach was not working. Only 4 percent of researchers published their work under OA standards, largely because busy, working scientists did not consider it a priority and their publishers were not especially eager to help. So Congress in December 2007 required NIH to mandate open access for its research within a year of publication.~{ Peter Suber has an excellent account of the final OA legislation in /{SPARC Open Access Newsletter}/, no. 17, January 2, 2008, at http://www.earlham.edu/~peters/fos/newsletter/01-02-08.htm. }~ +={National Institutes for Health (NIH)} + +What may sound like an arcane policy battle in fact has serious implications for ordinary Americans. The breast cancer patient seeking the best peer-reviewed articles online, or the family of a person with Huntington’s disease, can clearly benefit if they can acquire, for free, the latest medical research. Scientists, journalists, health-care workers, physicians, patients, and many others cannot access the vast literature of publicly funded scientific knowledge because of high subscription rates or per-article fees. A freely available body of online literature is the best, most efficient way to help science generate more reliable answers, new discoveries, and commercial innovations. + +While large publishers continue to dominate the journal market, OA publishing has made significant advances in recent years. In June 2008, the Directory of Open Access Journals listed more than 3,400 open-access journals containing 188,803 articles. In some fields such as biology and bioinformatics, OA journals are among the top-cited journals. In fact, this is one of the great advantages of OA literature. In the networked environment, articles published in OA journals are more likely to be discovered by others and cited, which enhances the so-called impact of an article and the reputation of an author. + +Although journals may or may not choose to honor OA principles, any scientist, as the copyright holder of his articles, can choose to “self-archive” his work under open-access terms. But commercial publishers generally don’t like to cede certain rights, and authors usually don’t know what rights to ask for, how to assert them in legal language, and how to negotiate with publishers. So it is difficult for most academics to assert their real preferences for open access. To help make things simpler, SPARC and MIT developed what is called an “author’s addendum.” It is a standard legal contract that authors can attach to their publishing contracts, in which they reserve certain key rights to publish their works in OA-compliant ways. + +2~ The Scholar’s Copyright Project +={Scholar’s Copyright Project+18;Science Commons:Scholar’s Copyright Project, and+18} + +In an attempt to help the open-access movement, Science Commons in 2007 developed its own suite of amendments to publishing contracts. The goal has been to ensure that “at a minimum, scholarly authors retain enough rights to archive their work on the Web. Every Science Commons Addendum ensures the freedom to use scholarly articles for educational purposes, conference presentations, in other scholarly works or in professional activities.”~{ Science Commons brochure [undated]. }~ The ultimate goal is to enable authors “to have the clear and unambiguous freedom to engage in their normal everyday scholarly activities without contending with complex technology, continuous amendments to contracts or the need for a lawyer.”~{ Science Commons, “Scholar’s Copyright Project — Background Briefing,” at http://sciencecommons.org/literature/scholars_copyright.html. }~ +={open access (OA) movement} + +To make the whole process easier for scientists, Science Commons developed the Scholar’s Copyright Addendum Engine. This point-and-click Web-based tool lets authors publish in traditional, subscription-based journals while retaining their rights to post copies on the Internet for download, without most copyright and financial restrictions. There are also options for “drag and drop” self-archiving to repositories such as MIT’s DSpace and the National Library of Medicine’s PubMed Central. Besides making selfarchiving easier and more prevalent, Science Commons hopes to standardize the legal terms and procedures for self-archiving to avoid a proliferation of incompatible rights regimes and document formats. “The engine seems to be generating a dialogue between authors and publishers that never existed,” said John Wilbanks. “It’s not being rejected out of hand, which is really cool. To the extent that the addendum becomes a norm, it will start to open up the [contractual] limitations on self-archiving.”~{ Interview with John Wilbanks, November 19, 2007. }~ +={Wilbanks, John} + +Harvard University gave self-archiving a big boost in February 2008 when its faculty unanimously voted to require all faculty to distribute their scholarship through an online, open-access repository operated by the Harvard library unless a professor chooses to “opt out” and publish exclusively with a commercial journal. Robert Darnton, director of the Harvard library, said, “In place of a closed, privileged and costly system, [the open-access rule] will help open up the world of learning to everyone who wants to learn.”~{ Patricia Cohen, “At Harvard, a Proposal to Publish Free on the Web,” /{New York Times}/, February 12, 2008. See also Peter Suber’s coverage of the decision in Open Access News, at http://www.earlham.edu/~peters/fos/2008/02/moreon-imminent-oa-mandate-at-harvard.html, and subsequent days. }~ Harvard’s move was the first time that a university faculty, and not just the administration, initiated action to take greater control of its scholarly publishing. While some critics complain the new policy does not go far enough, most OA advocates hailed the decision as a major step toward developing alternative distribution models for academic scholarship. +={Darnton, Robert;Harvard University;open access (OA) movement} + +By far, the more ambitious aspect of the Scholar’s Copyright project is the attempt to free databases from a confusing tangle of copyright claims. In every imaginable field of science — from anthropology and marine biology to chemistry and genetics — databases are vital tools for organizing and manipulating vast collections of empirical data. The flood of data has vastly increased as computers have become ubiquitous research tools and as new technologies are deployed to generate entirely new sorts of digital data streams— measurements from remote sensors, data streams from space, and much more. But the incompatibility of databases — chiefly for technical and copyright reasons — is needlessly Balkanizing research to the detriment of scientific progress. “There is plenty of data out there,” says Richard Wallis of Talis, a company that has built a Semantic Web technology platform for open data, “but it is often trapped in silos or hidden behind logins, subscriptions or just plain difficult to get hold of.” He added that there is a lot of data that is “just out there,” but the terms of access may be dubious.~{ Donna Wentworth blog post, “Ensuring the freedom to integrate — why we need an ‘open data’ protocol,” Science Commons blog, December 20, 2007, at http://sciencecommons.org/weblog/archives/2007/12/20/ensuring-thefreedom-to-integrate. }~ +={Wallis, Richard;science:databases+14;Science Commons:ownership of data, and+14} + +Questions immediately arise: Can a database be legally used? Who owns it? Will the database continue to be accessible? Will access require payment later on? Since data now reside anywhere in the world, any potential user of data also has to consider the wide variations of copyright protection for databases around the world. + +The question of how data shall be owned, controlled, and shared is a profoundly perplexing one. History has shown the virtue of sharing scientific data — yet individual scientists, universities, and corporations frequently have their own interests in limiting how databases may be used. Scientists want to ensure the integrity of the data and any additions to it; they may want to ensure preferential access to key researchers; companies may consider the data a lucrative asset to be privately exploited. Indeed, if there is not some mechanism of control, database producers worry that free riders will simply appropriate useful compilations and perhaps sell it or use it for their own competitive advantage. Or they may fail to properly credit the scientists who compiled the data in the first place. Inadequate database protection could discourage people from creating new databases in the future. + +A National Research Council report in 1999 described the problem this way: “Currently many for-profit and not-for-profit database producers are concerned about the possibility that significant portions of their databases will be copied or used in substantial part by others to create ‘new’ derivative databases. If an identical or substantially similar database is then either re-disseminated broadly or sold and used in direct competition with the original rights holder’s database, the rights holder’s revenues will be undermined, or in extreme cases, the rights holder will be put out of business.”~{ National Research Council, /{A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases}/ (Washington, DC: National Academy Press, 1999), p. 14. }~ + +In the late 1990s, when the Human Genome Project and a private company, Celera, were competing to map the human genome, the publicly funded researchers were eager to publish the genome sequencing data as quickly as possible in order to prevent Celera or any other company from claiming exclusive control over the information. They wanted the data to be treated as “the common heritage of humanity” so that it would remain openly accessible to everyone, including commercial researchers. When Sir John Sulston of the Human Genome Project broached the idea of putting his team’s research under a GPL-like license, it provoked objections that ownership of the data would set a worrisome precedent. A GPL for data amounts to a “reach-through” requirement on how data may be used in the future. This might not only imply that data can be owned — flouting the legal tradition that facts cannot be owned — it might discourage future data producers from depositing their data into public databases.~{ John Sulston and Georgina Ferry, /{The Common Threat: A Story of Science, Politics, Ethics and the Human Genome}/ (Washington, DC: Joseph Henry Press, 2002), pp. 212–13. }~ +={Human Genome Project (HGP);science:Human Genome Project;Sulston, Sir John;General Public License (GPL):“reach-through” requirement} + +The International HapMap Project attempted such a copyleft strategy with its database of genotypes; its goal is to compare the genetic sequences of different individuals to identify chromosomal regions where genetic variants are shared.~{ http://www.hapmap.org. }~ The project initially required users to register and agree to certain contract terms in order to use the database. One key term prohibited users from patenting any genetic information from the database or using patents to block usage of HapMap data.~{ Andrés Guadamuz González, “Open Science: Open Source Licenses in Scientific Research,” /{North Carolina Journal of Law & Technology}/ 7, no. 2 (Spring 2006), pp. 349–50. }~ This viral, open-content license for data seemed to provide a solution to the problem of how to keep data in the commons. But in time the HapMap Project found that its license inhibited people’s willingness to integrate their own data with the HapMap database. It therefore abandoned its license and now places all of its data into the public domain; it is now available to be used by anyone for any purpose, although it has issued guidelines for the “responsible use and publication” of the data.~{ http://www.hapmap.org/guidelines_hapmap_data.html.en. }~ +={International HapMap Project} + +The basic problem with applying copyright law to databases is how to draw the line between what is private property and what remains in the commons. “If you try to impose a Creative Commons license or free-software-style licensing regime on a database of uncopyrightable facts,” explained John Wilbanks, “you create an enormous amount of confusion in the user about where the rights start and stop.”~{ Interview with John Wilbanks, November 19, 2007. }~ It is not very practical for a working scientist to determine whether copyright protection applies only to the data itself, to the database model (the structure and organization of the data), or to the data entry and output sheet. A scientist might reasonably presume that his data are covered by copyright law, and then use that right to apply a CC ShareAlike license to the data. But in fact, the data could be ineligible for copyright protection and so the CC license would be misleading; other scientists could ignore its terms with impunity. At the other extreme, other scientists may be unwilling to share their data at all lest the data circulate with no controls whatsoever. Data are either overprotected or underprotected, but in either case there is great ambiguity and confusion. +={Wilbanks, John;copyright law:science, in+1;science:copyright and patent restrictions in+1;Creative Commons (CC) licenses:applied to databases} + +For two years, Science Commons wrestled with the challenge of applying the CC licenses to databases. Ultimately, the project came to the conclusion that “copyright licenses and contractual restrictions are simply the wrong tool, even if those licenses are used with the best of intentions.” There is just too much uncertainty about the scope and applicability of copyright — and thus questions about any licenses based on it. For example, it is not entirely clear what constitutes a “derivative work” in the context of databases. If one were to query hundreds of databases using the Semantic Web, would the federated results be considered a derivative work that requires copyright permissions from each database owner? There is also the problem of “attribution stacking,” in which a query made to multiple databases might require giving credit to scores of databases. Different CC licenses for different databases could also create legal incompatibilities among data. Data licensed under a CC ShareAlike license, for example, cannot be legally combined with data licensed under a different license. Segregating data into different “legal boxes” could turn out to impede, not advance, the freedom to integrate data on the Web. +={attribution stacking;copyright law:attribution stacking in databases, and|derivative works, on;derivative works} + +After meeting with a variety of experts in scientific databases, particularly in the life sciences, biodiversity, and geospatial research, the Science Commons came up with an ingenious solution to the gnarly difficulties. Instead of relying on either copyright law or licenses, Science Commons in late 2007 announced a new legal tool, CC0 (CC Zero), which creates a legal and technical platform for a scientific community to develop its own reputation system for sharing data. +={CC Zero (CC0)+6;Creative Commons (CC):CC0 (CC Zero), and+6;Science Commons:CC0 (CC Zero), and+6} + +CC0 is not a license but a set of protocols. The protocols require that a database producer waive all rights to the data based on intellectual property law — copyrights, patents, unfair competition claims, unfair infringement rights — a “quitclaim” that covers everything. Then it requires that the database producer affirmatively declare that it is not using contracts to encumber future uses of the data. Once a database is certified as complying with the protocols, as determined by Science Commons, it is entitled to use a Science Commons trademark, “Open Access Data,” and CC0 metadata. The trademark signals to other scientists that the database meets certain basic standards of interoperability, legal certainty, ease of use, and low transaction costs. The metadata is a functional software tool that enables different databases to share their data. + +“What we are doing,” said John Wilbanks, “is reconstructing, contractually, the public domain. The idea is that with any conforming implementation — any licensed database — you have complete freedom to integrate with anything else. It creates a zone of certainty for data integration.”~{ Ibid. }~ Unlike public-domain data, the databases that Science Commons certifies as meeting open-data protocols cannot be taken private or legally encumbered. To qualify to use the Open Access Data mark, databases must be interoperable with other databases licensed under the protocols. If someone falsely represents that his data are covered by the license, Science Commons could pursue a trademark infringement case. +={Wilbanks, John;public domain:reconstructing+4} + +To develop this scheme, Science Commons’s attorney Thinh Nguyen worked closely with Talis, a company that has built a Semantic Web technology platform for open data and developed its own open database license. Nguyen also worked with the company’s legal team, Jordan Hatcher and Charlotte Waelde, and with the Open Knowledge Foundation, which has developed the Open Knowledge Definition. +={Nguyen, Thinh;Hatcher, Jordan;Waelde, Charlotte;Open Knowledge Definition} + +The CC0 approach to data represents something of a breakthrough because it avoids rigid, prescriptive legal standards for a type of content (data) that is highly variable and governed by different community norms. CC0 abandons the vision of crafting a single, all-purpose copyright license or contract for thousands of different databases in different legal jurisdictions. Instead it tries to create a legal framework that can honor a range of variable social norms that converge on the public domain. Each research community can determine for itself how to meet the CC0 protocols, based on its own distinctive research needs and traditions. Different norms can agree to a equivalency of public-domain standards without any one discipline constraining the behaviors of another. +={public domain:social norms, and} + +The system is clever because it provides legal reliability without being overly prescriptive. It is simple to use but still able to accommodate complex variations among disciplines. And it has low transaction costs for both producers and users of data. Over time, the databases that comply with the CC0 protocols are likely to grow into a large universe of interoperable open data. +={science:transaction costs in;transaction costs:science, in} + +It is still too early to judge how well the CC0 program is working, but initial reactions have been positive. “The solution is at once obvious and radical,” said Glyn Moody, a British journalist who writes about open-source software. “It is this pragmatism, rooted in how science actually works, that makes the current protocol particularly important.” Deepak Singh, the co-founder of Bioscreencast, a free online video tutorial library for the scientific community, said, “I consider just the announcement to be a monumental moment.”~{ Moody and Singh quotations from Donna Wentworth, Science Commons blog post, December 20, 2007. }~ +={Moody, Glyn;Singh, Deepak} + +2~ The Neurocommons + +Every day there is so much new scientific literature generated that it would take a single person 106 years to read it all.~{ Brian Athey, University of Michigan, presentation at Commons of Science conference, National Academy of Science, Washington, DC, October 3, 2006. }~ In a single year, over twenty-four thousand peer-reviewed journals publish about 2.5 million research articles.~{ Stevan Harnad, “Maximizing Research Impact Through Institutional and National Open-Access Self-Archiving Mandates,” /{Electronics & Computer Science E-Prints Repository}/, May 2006, available at http://eprints.ecs.soron.ac.uk/12093/02/harnad-crisrey.pdf. }~ Our ability to generate content has far outstripped our ability to comprehend it. We are suffering from a cognitive overload — one that can only be addressed by using software and computer networks in innovative ways to organize, search, and access information. For many years, Sir Tim Berners-Lee, the celebrated inventor of the World Wide Web, and his colleagues at the World Wide Web Consortium (W3C), based at MIT, have been trying to solve the problem of information overload by developing a “new layer” of code for the Web. +={Berners-Lee, Tim;World Wide Web Consortium (W3C)} + +This visionary project, the so-called Semantic Web, aspires to develop a framework for integrating a variety of systems, so they can communicate with one another, machine to machine. The goal is to enable computers to identify and capture information from anywhere on the Web, and then organize the results in sophisticated and customized ways. “If you search for ‘signal transduction genes in parameter neurons,’ ” said John Wilbanks of Science Commons, “Google sucks. It will get you 190,000 Web pages.” The goal of the Semantic Web is to deliver a far more targeted and useful body of specialized information. +={Semantic Web+6;Science Commons:Semantic Web, and the+6;World Wide Web:Semantic Web+6;ilbanks, John} + +A key tool is the Unique Resource Identifier, or URI, which is analogous to the Unique Resource Locator, or URL, used by the Web. Affix a URI to any bit of information on the Web, and the Semantic Web will (so it is hoped) let you mix and match information tagged with that URI with countless other bits of information tagged with other URIs. It would not matter if the bit of information resides in a journal article, database, clinical image, statistical analysis, or video; the point is that the URI would identify a precise bit of information. By enabling cross-linking among different types of information, the idea is that scientists will be able to make all sorts of unexpected and serendipitous insights. +={Unique Resource Identifier (URI);Unique Resource Locator (URL)} + +For example, geneticists studying Huntington’s disease, a rare neurodegenerative disorder, and experts studying Alzheimer’s disease are both exploring many of the same genes and proteins of the brain. But because of the specialization of their disciplines, the chances are good that they read entirely different scientific journals and attend different conferences. There is no easy or systematic way for scientists in one specialty to explore the knowledge that has developed in another specialty. The Semantic Web could probably help. + +Unfortunately, for a grand dream that has been touted since the 1990s, very little has developed. The W3C has been embroiled in the design challenges of the Semantic Web for so long that many companies and computer experts now scoff at the whole idea of the Semantic Web. There have been too many arcane, inconclusive debates about computer syntax, ontology language, and philosophical design choices that no one is holding their breath anymore, waiting for the Semantic Web to arrive. (Wikipedia defines a computer ontology as “a data model that represents a set of concepts within a domain and the relationships between those concepts. It is used to reason about the objects within that domain.”) The vision of the Semantic Web may have the potential to revolutionize science, but few people have seen much practical value in it over the near term, and so it has garnered little support. +={World Wide Web Consortium (W3C)+1} + +Wilbanks, who once worked at the W3C, was frustrated by this state of affairs. Although he has long believed in the promise of the Semantic Web, he also realized that it is not enough to extol its virtues. One must demonstrate its practicality. “The way to herd cats is not to herd cats,” he said, citing a colleague, “but to put a bowl of cream on your back stoop and run like hell.” For Wilbanks, the bowl of cream is the Neurocommons knowledge base, a project that seeks to integrate a huge amount of neuroscientific research using Semantic Web protocols and is easy to use. +={Neurocommons+5;Science Commons:Neurocommons, and the+5;Wilbanks, John+4} + +“The way to overcome the inertia that the Semantic Web critics rightly point out, is not to sit down and argue about ontologies,” said Wilbanks. “It’s to release something that’s useful enough that it’s worth wiring your database into the commons system. If I want to get precise answers to complicated questions that might be found in my own database, among others, now I can do that. I simply have to wire it into the Neurocommons. You don’t need to come to some magical agreement about ontology; you just need to spend a couple of days converting your database to RDF [Resource Description Framework, a set of Semantic Web specifications], and then— boom! — I’ve got all of the other databases integrated with mine.” By getting the ball rolling, Science Commons is betting that enough neuroscience fields will integrate their literature to the Neurocommons protocols and make the new commons a lively, sustainable, and growing organism of knowledge. +={RDF (Resource Description Framework)} + +Using the “open wiring” of the Semantic Web, the Neurocommons has already integrated information from fifteen of the top twenty databases in the life sciences and neuroscience. The data have been reformatted to conform to Semantic Web protocols and the scientific literature, where possible, has been tagged so that it can be “text-mined” (searched for specific information via URI tags). “We have put all this stuff into a database that we give away,” said Wilbanks. “It’s already been mirrored in Ireland, and more mirrors are going up. It’s sort of like a ‘knowledge server,’ instead of a Web server.” +={Unique Resource Identifier (URI)} + +Commercial journal publishers already recognize the potential power of owning and controlling metadata in scientific literature and datasets. To leverage this control many are starting to make copyright claims in certain kinds of metadata, and to amend their contracts with libraries in order to limit how they may retrieve electronic information. “There is a lot at stake here,” says Villanova law professor Michael Carroll. “What Science Commons wants to do is make sure that metadata is an open resource.”~{ Interview with Michael Carroll, August 7, 2006. }~ +={Carroll, Michael W.;libraries:Science Commons, and;Science Commons:libraries, and} + +Wilbanks has high hopes that the Neurocommons project, by providing a useful demonstration of Semantic Web tools, will hasten the interoperability of specialized knowledge that is currently isolated from related fields. It comes down to how to motivate a convergence of knowledge. Instead of arguing about which discipline’s ontology of specialized knowledge is superior to another’s — and making little headway toward a consensus — Wilbanks has a strategy to build a knowledge tool that is useful. Period. His bet is that a useful “knowledge server” of integrated neuroscientific information will be a powerful incentive for adjacent disciplines to adapt their own literature and databases to be compatible. The point is to get the commons going — while allowing the freedom for it to evolve. Then, if people have disagreements or quibbles, they will be free to change the ontologies as they see fit. “The version [of the Neurocommons] that we are building is useful and it is free,” Wilbanks said. “That means that if you want to integrate with it, you can. It means that if you want to redo our work your way, you can— as long as you use the right technical formats. You can reuse all of our software.” + +The problem with a field like neuroscience, which has so many exploding frontiers, is that no single company or proprietary software platform can adequately manage the knowledge. The information is simply too copious and complex. Like so many other fields of knowledge that are large and complicated, it appears that only an open-source model can successfully curate the relevant information sources. A Web-based commons can be remarkably efficient, effective, and scalable. This has been the lesson of free and open-source software, wikis, and the Web itself. Although it is too early to tell how the Neurocommons project will evolve, the initial signs are promising. A number of foundations that support research for specific diseases — Alzheimer’s disease, Parkinson’s, autism, epilepsy, Huntington’s disease — have already expressed interest in the Neurocommons as a potential model for advancing research in their respective fields. + +2~ Open Physical Tools +={Science Commons:open physical tools in+10} + +Science is not just about text and data, of course. It also involves lots of tangible /{stuff}/ needed to conduct experiments. Typical materials include cell lines, monoclonal antibodies, reagents, animal models, synthetic materials, nano-materials, clones, laboratory equipment, and much else. Here, too, sharing and collaboration are important to the advance of science. But unlike digital bits, which are highly malleable, the physical materials needed for experiments have to be located, approved for use, and shipped. Therein lies another tale of high transaction costs impeding the progress of science. As Thinh Nguyen, counsel for Science Commons, describes the problem: +={Nguyen, Thinh+1} + +_1 The ability to locate materials based on their descriptions in journal articles is often limited by lack of sufficient information about origin and availability, and there is no standard citation for such materials. In addition, the process of legal negotiation that may follow can be lengthy and unpredictable. This can have important implications for science policy, especially when delays or inability to obtain research materials result in lost time, productivity and research opportunities.~{ Thinh Nguyen, “Science Commons: Material Transfer Agreement Project,” /{Innovations}/, Summer 2007, pp. 137–43, at http://www.mitpressjournals.org/doi/pdf/10.1162/itgg.2007.2.3.137. }~ + +To the nonscientist, this transactional subculture is largely invisible. But to scientists whose lab work requires access to certain physical materials, the uncertainties, variations, and delays can be crippling. Normally, the transfer of materials from one scientist to another occurs through a Material Transfer Agreement, or MTA. The technology transfer office at one research university will grant, or not grant, an MTA so that a cell line or tissue specimen can be shipped to a researcher at another university. Typically, permission must be granted for the researcher to publish, disseminate, or use research results, and to license their use for commercialization. +={Material Transfer Agreements (MTAs)+7;science:Material Transfer Agreements (MTAs)+7} + +While certain types of transactions involve material that could conceivably generate high royalty revenues, a great many transactions are fairly low-value, routine transfers of material for basic research. Paradoxically, that can make it all the harder to obtain the material because consummating an MTA is not a high priority for the tech transfer office. In other cases, sharing the material is subject to special agreements whose terms are not known in advance. + +Corporations sometimes have MTAs with onerous terms that prevent academic researchers from using a reagent or research tool. Individual scientists sometimes balk at sharing a substance because of the time and effort needed to ship it. Or they may wish to prevent another scientist from being the first to publish research results. Whatever the motivation, MTAs can act as a serious impediment to verification of scientific findings. They can also prevent new types of exploratory research and innovation. + +Wilbanks describes the existing system as an inefficient, artisanal one that needs to becomes more of a streamlined industrial system. Just as Creative Commons sought to lower the transaction costs for sharing creative works, through the use of standard public licenses, so Science Commons is now trying to standardize the process for sharing research materials. The idea is to reduce the transaction costs and legal risks by, in Nguyen’s words, “creating a voluntary and scalable infrastructure for rights representation and contracting.”~{ Ibid. }~ Like the CC licenses, the Science Commons MTAs will consist of “three layers” of licenses — the standard legal agreement, the machine-readable metadata version, and the “humanreadable deed” that nonlawyers can understand. +={Wilbanks, John;Nguyen, Thinh;science:transaction costs in;transaction costs:science, in} + +There are already some successful systems in place for sharing research materials, most notably the Uniform Biological Material Transfer Agreement (UBMTA), which some 320 institutions have accepted, as well as a Simple Letter Agreement developed by the National Institutes of Health. The problem with these systems is that they cannot be used for transfers of materials between academic and for-profit researchers. In addition, there are many instances in which UBMTA signatories can opt out of the system to make modifications to the UBMTA on a case-by-case basis. +={National Institutes for Health (NIH);Uniform Biological Material Transfer Agreement (UBMTA)} + +To help standardize and streamline the whole system for sharing research materials, Science Commons is working with a consortium of ten research universities, the iBridge Network, to develop a prototype system. The hope is that by introducing metadata to the system, and linking that information to standard contracts and human-readable deeds, scientists will be able to acquire research materials much more rapidly by avoiding bureaucratic and legal hassles. Just as eBay, Amazon, and Federal Express use metadata to allow customers to track the status of their orders, so the Science Commons MTA project wants to develop a system that will allow searching, tracking, and indexing of specific shipments. It is also hoped that metadata links will be inserted into journal articles, enabling scientists to click on a given research material in order to determine the legal and logistical terms for obtaining the material. +={iBridge Network;Science Commons:iBridge Network, and} + +Wilbanks envisions a new market of third-party intermediaries to facilitate materials transfers: “There’s an emerging network of third parties — think of them as ‘biology greenhouses’ — who are funded to take in copies of research materials and manufacture them on demand — to grow a quantity and mail them out. What Science Commons is trying to do with the Materials Transfer Project is to put together a functional system where materials can go to greenhouses under standard contracts, with digital identifiers, so that the materials can be cross-linked into the digital information commons. Anytime you see a list of genes, for example, you will be able to right-click and see the stuff that’s available from the greenhouses under standard contract, and the cost of manufacture and delivery in order to access the tool. Research materials need to be available under a standard contract, discoverable with a digital identifier, and fulfillable by a third party. And there needs to be some sort of acknowledgment, like a citation system.” +={Wilbanks, John} + +At one level, it is ironic that one of the oldest commons-based communities, academic science, has taken so long to reengineer its digital infrastructure to take advantage of the Internet and open digital systems. Yet academic disciplines have always clung tightly to their special ways of knowing and organizing themselves. The arrival of the Internet has been disruptive to this tradition by blurring academic boundaries and inviting new types of cross-boundary research and conversation. If only to improve the conversation, more scientists are discovering the value of establishing working protocols to let the diverse tribes of science communicate with one another more easily. Now that the examples of networked collaboration are proliferating, demonstrating the enormous power that can be unleashed through sharing and openness, the momentum for change is only going to intensify. The resulting explosion of knowledge and innovation should be quite a spectacle. + +1~ 12 OPEN EDUCATION AND LEARNING +={education+44} + +/{Managing educational resources as a commons can make learning more affordable and exciting.}/ + +In the late 1990s, as Richard Baraniuk taught electrical engineering to undergraduates at Rice University, the furthest thing from his mind was revolutionizing learning. He just wanted to make digital signal processing a more palatable subject for his students. Baraniuk, an affable professor with a venturesome spirit, was frustrated that half of his undergraduate class would glaze over when he taught signal processing, perhaps because it involves a lot of math. But then he explained the social ramifications of signal processing — for wiretapping, the Internet, the airwaves, radar, and much more. Students got excited. +={Baraniuk, Richard+13;Rice University+13} + +“If I wanted to reach a broader class of people, outside of Rice University,” Baraniuk said, “that would be very difficult. The standard thing is to write your own book.” But he quickly realized that writing the 176th book ever written on signal processing (he counted) would not be very efficient or effective. It would take years to write, and then additional years to traverse the editorial, production, and distribution process. And even if the book were successful, it would reach only five thousand readers. Finally, it would be a static artifact, lacking the timeliness and interactivity of online dialogue. A book, Baraniuk ruefully observed, “redisconnects things.”~{ Interview with Richard Baraniuk, January 21, 2008. }~ + +As chance had it, Baraniuk’s research group at Rice was just discovering open-source software. “It was 1999, and we were moving all of our workstations to Linux,” he recalled. “It was just so robust and high-quality, even at that time, and it was being worked on by thousands of people.” Baraniuk remembers having an epiphany: “What if we took books and ‘chunked them apart,’ just like software? And what if we made the IP open so that the books would be free to re-use and remix in different ways?’” +={Linux:education, and} + +The vision was exciting, but the tools for realizing it were virtually nonexistent. The technologies for collaborative authoring and the legal licenses for sharing, not to mention the financing and outreach for the idea, would all have to be developed. Fortunately, the Rice University administration understood the huge potential and helped Baraniuk raise $1 million to put together a skunk works of colleagues to devise a suitable software architecture and nonprofit plan. A colleague, Don Johnson, dubbed the enterprise “Connexions.” +={Connexions+10;education:Connexions+10;Johnson, Don} + +The group made a number of choices that turned out to be remarkably shrewd. Instead of organizing teaching materials into a “course” or a “textbook,” for example, the Connexions planners decided to build an open ecosystem of shared knowledge. Just as the Web is “small pieces loosely joined,” as David Weinberger’s 2003 book put it, so Connexions decided that the best way to structure its educational content was as discrete modules (such as “signal processing”) that could be reused in any number of contexts. The planners also decided to build a system on the open Semantic Web format rather than a simple interlinking of PDF files. This choice meant that the system would not be tethered to a proprietary or static way of displaying information, but could adapt and scale in the networked environment. Modules of content could be more easily identified and used for many different purposes, in flexible ways. +={education:Semantic Web, and;Semantic Web;World Wide Web:Semantic Web;Weinberger, David} + +By the summer of 2000, the first version of Connexions went live with two Rice University courses, Fundamentals of Electronic Engineering and Introduction to Physical Electronics. The goal was to let anyone create educational materials and put them in the repository. Anyone could copy and customize material on the site, or mix it with new material in order to create new books and courses. Materials could even be used to make commercial products such as Web courses, CD-ROMs, and printed books. By the end of 2000, two hundred course modules were available on Connexions: a modest but promising start. + +It turned out to be an auspicious moment to launch an open platform for sharing. A wave of Web 2.0 applications and tools was just beginning to appear on the Internet. Innovators with the savvy to take advantage of open networks, in the style of free and open software, could amass huge participatory communities in very short order. For Connexions, the living proof was Kitty Schmidt-Jones, a private piano teacher from Champaign, Illinois. She discovered Connexions through her husband and posted a 276-page book on music theory to the site. “Kitty is not the kind of person who would be a music textbook author,” said Baraniuk, “but she thought that music education is important, and said, ‘I can do this, too!’ By 2007 /{Understanding Basic Music Theory}/ had been downloaded more than 7.5 million times from people around the world. A Connexions staffer attending a conference in Lithuania met an educator from Mongolia who lit up at the mention of Schmidt-Jones. “We use her work in our schools!” he said. +={education:Web 2.0 applications, and;Web 2.0: applications:education, and;Schmidt-Jones, Kitty} + +Besides curating a collection of educational content, Connexions has developed a variety of open-source applications to let authors create, remix, share, and print content easily. The project has also developed systems to let users rate the quality of materials. Professional societies, editorial boards of journals, and even informal groups can use a customizable software “lens” to tag the quality of Connexions modules, which can then be organized and retrieved according to a given lens. + +It was a stroke of good fortune when Baraniuk and his associates learned, in 2002, that Lawrence Lessig was developing a new licensing project called Creative Commons. As the CC team drafted its licenses, Connexions helped it understand academic needs and then became one of the very first institutional adopters of the CC licenses. Connexions decided to require that its contributors license their works under the least restrictive CC license, CC-BY (Attribution). This was a simple decision because most textbook authors write to reach large readerships, not to make money. +={Lessig, Lawrence:CC licenses, and} + +The real expansion of Connexions as a major international repository of teaching materials did not occur until early 2004, when the software platform had been sufficiently refined. Then, with virtually no publicity, global usage of the Connexions site took off. It helped that Rice University has never sought to “own” the project. Although it administers the project, the university has deliberately encouraged grassroots participation from around the world and across institutions. Electrical engineering faculty at ten major universities are cooperating in developing curricula, for example, and diverse communities of authors are adding to content collections in music, engineering, physics, chemistry, bioinformatics, nanotechnology, and history. In 2008, Connexions had 5,801 learning modules woven into 344 collections. More than 1 million people from 194 countries are using the materials, many of which are written in Chinese, Italian, Spanish, and other languages. + +One of Connexion’s neatest tricks is offering printed textbooks for a fraction of the price of conventional textbooks. Because the content is drawn from the commons, a 300-page hardback engineering textbook that normally sells for $125 can be bought for $25, through a print-on-demand publishing partner, QOOP.com. Ten percent of the purchase price is earmarked to support Connexions, and another 10 percent helps disadvantaged students obtain textbooks for free. Unlike conventional textbooks, which may be a year or two old, Connexions materials are generally up-to-date. + +By providing an alternative to the spiraling costs of academic publishing, Connexions’s publishing model may actually help a number of academic disciplines pursue their scholarly missions. Over the past decade, some sixty university presses have closed or downsized for economic reasons. “If you’re in art history, anthropology, or the humanities, you get tenure based on your monographs published by a university press,” Baraniuk said. “The problem is that, as university presses shut down, there’s nowhere to publish books anymore.” It is often financially prohibitive to publish art history books, for example, because such books typically require highquality production and small press runs. An overly expensive market structure is blocking the flow of new scholarly publishing. +={education:university presses+1} + +One solution: a new all-digital hybrid business model for academic publishing. As the Connexions platform has proved itself, Rice University saw the virtue of reopening Rice University Press (RUP), which it had closed ten years earlier.~{ Rice University Press homepage, at http://www.ricepress.rice.edu. }~ The new RUP retains the editorial structure, high standards, and focus on special fields of a conventional academic press, but it now works within a “branded partition” of Connexions. RUP posts all of its books online as soon as the manuscripts are finalized, and all books are licensed under a CC-BY (Attribution) license. The press does not have to pay for any warehouse or distribution costs because any physical copies of the books are printed on demand. The sales price includes a mission-support fee for RUP and the author’s royalty. “Because the RUP has eliminated all the back-end costs,” said Baraniuk, “they figure they can run it from five to ten times more cheaply than a regular university press.” + +The Connexions publishing model has inspired a group of more than twenty community colleges to develop its own publicdomain textbooks to compete with expensive commercial textbooks. The Community College Consortium for Open Educational Resources~{ http://cccoer.pbwiki.com. }~ —led by Foothill–De Anza Community College District in Los Altos, California — plans to publish the ten most popular textbooks used in community colleges, and expand from there. The consortium will make the books available for free online and sell hardcover versions for less than thirty dollars. Even if the effort gains only a small slice of the textbook market, it will help hold down the prices of commercial textbooks and demonstrate the viability of a new publishing model. More to the point, by slashing one of the biggest costs facing community college students, the project will help thousands of lower-income students to stay in college. + +2~ MIT’s OpenCourseWare Initiative +={MIT OpenCourseWare+8;OpenCourseWare+8;education:OpenCourseWare+8} + +The other pioneering visionary in open education has been MIT. In April 2001, MIT president Charles Vest shocked the world when he announced that MIT would begin to put the materials for all two thousand of its courses online for anyone to use, for free. The new initiative, called OpenCourseWare, would cover a wide array of instructional materials: lecture notes, class assignments, problem sets, syllabi, simulations, exams, and video lectures. Putting the materials online in a searchable, consistent format was expected to take ten years and cost tens of millions of dollars. (The Hewlett and Mellon foundations initially stepped forward with two $5.5 million grants, supplemented by $1 million from MIT.) +={Vest, Charles+1} + +The project had its origins two years earlier, in 1999, when President Vest charged a study group with exploring how the university might develop online educational modules for lifelong learning. The assumption was that it would sell MIT-branded course materials to the budding “e-learning” market. At the time, Columbia University was developing Fathom.com, a bold for-profit co-venture with thirteen other institutions, to sell a wide variety of digital content. Publishers and universities alike envisioned a lucrative new market for academic and cultural materials. + +OpenCourseWare (OCW) was a startling move because it flatly rejected this ambition, and appeared to be either a foolish or magnanimous giveaway of extremely valuable information. Knowledge was assumed to be a species of property that should be sold for as dear a price as possible; few people at the time recognized that the Great Value Shift on the Internet was reversing this logic. The idea that giving information away might actually yield greater gains— by enhancing an institution’s visibility, respect, and influence on a global scale — was not seen as credible. After all, where’s the money? +={Great Value Shift;Internet:Great Value Shift, and} + +After studying the matter closely, MIT decided that the online market was not likely to be a boon, and that posting course materials online would send a strong message about MIT’s values. President Vest conceded that the plan “looks counter-intuitive in a market-driven world.” But he stressed that OpenCourseWare would combine “the traditional openness and outreach and democratizing influence of American education and the ability of the Web to make vast amounts of information instantly available.”~{ MIT press release, “MIT to make nearly all course materials available free on the World Wide Web,” April 4, 2001.}~ Professor Steven Lerman, one of the architects of the OCW plan, told the /{New York Times}/, “Selling content for profit, or trying in some ways to commercialize one of the core intellectual activities of the university, seemed less attractive to people at a deep level than finding ways to disseminate it as broadly as possible.”~{ Carey Goldberg, “Auditing Classes at M.I.T., on the Web and Free,” /{New York Times}/, April 4, 2001, p. 1. }~ +={Vest, Charles;Lerman, Steven} + +MIT also realized the dangers of propertizing college courses and teaching materials, said computer scientist Hal Abelson, another member of the OCW study group (and a CC board member). Ownership, he said, “can be profoundly destructive to the idea of a university community . . . The more people can stop talking about property and start talking about the nature of a faculty member’s commitment to the institution, the healthier the discussion will be. It’s not really about what you own as a faculty member; it’s about what you do as a faculty member.”~{ Interview with Hal Abelson, “OpenCourseWare and the Mission of MIT,” /{Academe}/, September/October 2002, pp. 25–26. }~ +={Abelson, Hal:OpenCourseWare, and} + +School officials stressed that using MIT courseware on the Web is not the same as an MIT education. Indeed, the free materials underscore the fact that what really distinguishes an MIT education is one’s participation in a learning community. Unlike the Connexions content, MIT’s OpenCourseWare is a fairly static set of course materials; they are not modular or constantly updated. In addition, they are licensed under a CC BY-NC-SA (AttributionNonCommercial-ShareAlike.) license. While this prevents businesses from profiting from MIT course materials, it also prevents other educational institutions from remixing them into new courses or textbooks. +={communities:learning;education:learning community, in a} + +Despite these limitations, MIT’s OCW materials have been profoundly influential. The course Laboratory in Software Engineering, for example, has been used by students in Karachi, Pakistan; the island of Mauritius; Vienna, Austria; and Kansas City, Missouri, among scores of other places around the world.~{ David Diamond, “MIT Everyware,” /{Wired}/, September 2003. }~ Ten of the leading Chinese universities now use hundreds of MIT courses, leading three noted OER experts, Daniel E. Atkins, John Seely Brown, and Allen L. Hammond, to conclude that MIT’s OCW “has had a major impact on Chinese education.”~{ Daniel E. Atkins, John Seely Brown, and Allen L. Hammond, “A Review of the Open Educational Resources (OER) Movement: Achievements, Challenges and New Opportunities,” February 2007, at http://www.oerderves.org/wp-content/uploads/2007/03/a-review-of-the-open-educational-re sources-oer-movement_final.pdf, p. 23. }~ Noting the life-changing impact that OCW has had on students in rural villages in China and West Africa, Atkins and his co-authors cite “the power of the OCW as a means for cross-cultural engagement.” Over the course of four years, from October 2003 through 2007, the OCW site received nearly 16 million visits; half were newcomers and half were repeat visits. +={Atkins, Daniel E.;Brown, John Seely;Hammond, Allen L.;education:OER movement;Open Educational Resources (OER) movement} + +OCW is becoming a more pervasive international ethic now that more than 120 educational institutions in twenty nations have banded together to form the OpenCourseWare Consortium. Its goal is to create “a broad and deep body of open educational content using a shared model.”~{ OpenCourseWare Consortium, at http://www.ocwconsortium.org. }~ Although plenty of universities are still trying to make money from distance education courses, a growing number of colleges and universities realize that OCW helps faculty connect with other interested faculty around the world, build a college’s public recognition and recruitment, and advance knowledge as a public good. + +2~ The Rise of the Open Educational Resources Movement +={education:OER movement+19;Open Educational Resources (OER) movement+19} + +While Connexions and MIT’s OpenCourseWare have understandably garnered a great deal of attention, all sorts of fascinating educational projects, big and small, have popped up on the Internet as Web 2.0 innovations matured. Some of these projects have become celebrated, such as Wikipedia, the Public Library of Science, and the Internet Archive. Others, though less celebrated, represent a dazzling mosaic of educational innovation and new possibilities. In a sense, the Long Tail has come to education; even the most obscure subjects have a sustainable niche on the Internet. The groundswell has even produced its own theorists, conveners, and infrastructure builders. Utah State University hosts the Center for Open Sustainable Learning, which is a clearinghouse for open educational tools. Carnegie Mellon has an Open Learning Initiative that designs educational courses. And so on. +={Long Tail;Wikipedia} + +While American institutions and educators have been the first movers in this field, it has quickly taken on an international grassroots flavor. Thousands of commoners from around the world have started their own projects. MathWorld has become the Web’s most extensive mathematical resource. Curriki is a wiki that offers lessons plans and guidance for teachers. The British Library’s Online Gallery features digitized versions of Mozart’s musical diary and sketches by Leonardo da Vinci. U.K. and Australian high school students can now use the Internet to operate the Faulkes Telescope on the island of Maui, Hawaii. Students around the world do much the same with Bugscope, a scanning electronic microscope that can be operated remotely. + +It is hard to set a precise date when the practitioners in this area realized that such wildly diverse projects might constitute a coherent movement with a shared agenda. But as more grantees began to discover each other, the movement-in-formation adopted a rather ungainly name to describe itself — “Open Educational Resources,” or OER. + +Most OER projects share a simple and powerful idea — “that the world’s knowledge is a public good and that technology in general and the World Wide Web in particular provide an extraordinary opportunity for everyone to share, use and reuse knowledge.” That is how Atkins and his co-authors define OER. It consists of “teaching, learning and research resources that reside in the public domain or have been released under an intellectual property license that permits their free use or re-purposing by others.”~{ Ibid. }~ +={Atkins, Daniel E.;Brown} + +The heart of the OER movement is, of course, open sharing and collaboration. OER advocates regard learning as an intrinsically social process, and so they believe that knowledge and learning tools ought to freely circulate. Inspired by the GPL and the CC licenses, OER advocates believe they should be free to copy, modify, and improve their learning tools and pass them forward to others. There is a presumption that artificial barriers to the free flow of information should be eliminated, and that teachers and learners should be empowered to create their own knowledge commons. +={Creative Commons (CC) licenses:tools for creating commons, as} + +The OER movement has a special importance for people who want to learn but don’t have the money or resources, which is to say, people in developing nations, low-income people, and people with specialized learning needs. For the 4 billion people who live in the developing world, schooling is a privilege, textbooks are rare, and money is scarce. In many African nations, there would not be libraries if books were not photocopied. The OER movement aspires to address these needs. OER projects can provide important benefits in industrialized nations, too, where subscriptions to research journals are often prohibitively expensive and many community college students drop out because textbooks cost more than tuition. + +The OER movement is currently in a formative stage, still trying to make sense of the many players in the movement and understand the complex impediments to its progress. Some of this could be seen at a “speed geeking” session at the iCommons Summit in 2007 in Dubrovnik, Croatia. Speed geeking, a puckish variation on “speed dating,” consists of people listening to a short presentation, asking questions and then moving on to the next presentation. After five minutes, a moderator blows a whistle and shouts, “Everyone move — now!” A speed geek can learn about twelve different projects, and meet twelve interesting people, in a single hour. +={Croatia} + +% added Croatia missing Croatia reference in source book index + +In this case, the speed geeking took place in a sweltering loft space without air-conditioning, in a medieval building overlooking the Adriatic Sea. At the first station, a group of participants marveled at a sturdy lime-green laptop of a kind that was about to be distributed to millions of children around the world. The One Laptop Per Child project, the brainchild of Nicholas Negroponte of MIT’s Media Lab, is an ambitious nonprofit initiative to build a sturdy, kidfriendly laptop filled with open-source software and Wi-Fi capabilities for $100.~{ See, e.g., John Markoff, “For $150, Third-World Laptop Stirs a Big Debate,” /{New York Times}/, November 30, 2006. }~ (The cost turned out to be $188, but is expected to decline as production volume grows.) Hundreds of thousands of the so-called XO laptops have now been distributed to kids in Peru, Uruguay, Mexico and other poor nations. +={Negroponte, Nicholas;One Laptop Per Child} + +/{Tweet!}/ Next stop: the Free High School Science Textbooks project in South Africa is developing a free set of science textbooks for students in grades ten through twelve. The project depends on volunteers to write modules of text about various physics, chemistry, and mathematical topics. Paid editors then craft the text into a coherent, high-quality textbook; printing is funded by donations. +={Free High School Science Textbooks} + +Five minutes later, it was on to Educalibre, a Chilean project that is installing free software on old computers so that they can be reused in classrooms. Educalibre is also trying to integrate free software into high school curricula, especially math. The project seeks to bring open-source software principles into formal education. + +Next, Delia Browne of the National Education Access Licence for Schools, or NEALS, explained that some ten thousand Australian schools pay millions of dollars each year to collecting societies in order to reprint materials that the Australian schools themselves have produced. NEALS wants to eliminate this expense, as well as millions of dollars in photocopying expenses, by creating a vast new commons of freely shareable educational materials. Its solution is to persuade Australian schools, as copyright holders, to adopt a special license so that participating schools can copy and share each other’s materials. +={Browne, Delia;National Education Access Licence for Schools (NEALS)} + +/{Tweet!}/ At the next station, Ed Bice of San Francisco explained how his nonprofit group, Meedan.net, is developing a “virtual town square” for Arabic- and English-speaking Internet users. Using realtime translation and social networking tools, the site aspires to open up a new global conversation between Arabs and the rest of the world. It plans to break down cultural barriers while opening up educational opportunities to Arab populations. +={Bice, Ed} + +/{Tweet! Tweet!}/ Neeru Paharia, a former executive director of the Creative Commons, introduced her fledgling project, AcaWiki. Paharia is concerned that too many academic articles are locked behind paywalls and are not readily accessible to everyone. AcaWiki plans to recruit graduate students, academics, and citizens to write summaries of academic papers. Since many grad students make abstracts as part of their routine research, it would not be difficult to pool thousands of summaries into a highly useful, searchable Web collection. +={Paharia, Neeru} + +The speed geekers in Dubrovnik were sweaty and overstimulated at the end, but gratified to learn that there are a great many OER projects under way throughout the world; they just aren’t very well known or coordinated with one another. Two of the participants — J. Philipp Schmidt of the University of the Western Cape and Mark Surman of the Shuttleworth Foundation, both of South Africa — conceded that “there is still a great deal of fuzziness about what this movement includes,” and that “we don’t yet have a good ‘map’ of open education.” But the significance of grassroots initiatives is unmistakable. “There is a movement afoot here,” they concluded, “and it is movement with an aim no less than making learning accessible and adaptable for all.”~{ J. Philipp Schmidt and Mark Surman, “Open Sourcing Education: Learning and Wisdom from the iSummit 2007,” September 2, 2007, at http://icommons.org/download_banco/open-sourcing-education-learning-and-wisdom-from-isummit-2007. }~ “Education,” another participant predicted, “will drive the future of the Commons movement.” +={Schmidt, J. Philipp;Surman, Mark} + +In a sign that the OER movement is getting serious as a movement, thirty of its leaders met in Cape Town, South Africa, and in January 2008 issued the Cape Town Open Education Declaration.~{ http://www.capetowndeclaration.org. Schmidt and Surman, “Open Sourcing Education.” }~ The declaration is a call to make learning materials more freely available online, and to improve education and learning by making them more collaborative, flexible, and locally relevant. The declaration outlines the challenge: “Many educators remain unaware of the growing pool of open educational resources. Many governments and educational institutions are either unaware or unconvinced of the benefits of open education. Differences among licensing schemes for open resources create confusion and incompatibility. And, of course, the majority of the world does not have access to the computers and networks that are integral to most current open education efforts.” + +New funding support is materializing from foundations like the Open Society Institute and the Shuttleworth Foundation, and the Creative Commons has instigated a new project, ccLearn, headed by Ahrash Bissell, to help coordinate OER factions and tackle barriers to further progress. +={Bissell, Ahrash} + +Despite the challenges it faces, the Open Educational Resources movement has a promising future if only because it has such an appealing ethos and practical value. It offers to lower the costs and increase the efficiencies of learning. It helps to generate high-quality materials that address specific learning needs. Where markets are too expensive or unresponsive, collective provisioning through the commons can meet needs effectively and in socially convivial ways. + +Such intangible satisfactions may be one of the secrets of the OER movement’s success to date. Institutions and individuals take pleasure in contributing to the public good. There is pleasure in helping people who thirst for an education, whether in Africa or in a community college, to acquire the resources they need. For learners, the OER movement offers new, more flexible styles of learning. Over time, it seems likely that OER projects will transform the familiar “information transfer” models of formal education into more informal and participatory learning communities. Passive students will more easily become passionate, self-directed learners. + +Finally, at a time of great geopolitical rivalries and cultural animosities, the OER movement holds itself forth as an arena of transnational cooperation. It regards diversity as a strength and social inequity as a challenge to be squarely met. It is a measure of the movement’s idealism that Schmidt and Surman, the South African OER commoners, compare open education to “a flock of migratory geese, moving back and forth between North and South. The flock combines birds from all places. Each goose takes a turn leading the flock, taking the strain, and then handing over to their peers. The flock is not confined to just the North, or the South. It flourishes as a global movement.” 14 +={Schmidt, J. Philipp;Surman, Mark} + +1~ CONCLUSION: THE DIGITAL REPUBLIC AND THE FUTURE OF DEMOCRATIC CULTURE +={free culture+56} + +/{You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete. —R. Buckminster Fuller}/ +={Fuller, R. Buckminster} + +Legend has it that, upon leaving Independence Hall on the final day of the Constitutional Convention in 1787, Benjamin Franklin was approached by a woman, who asked, “Well, Doctor, what have we got — a Republic or a Monarchy?” Franklin famously replied, “A Republic, if you can keep it.” The American colonies had imagined and engineered a new constitutional order, but its survival would depend on countless new struggles and innovations. An American civic culture had to be invented. +={Franklin, Benjamin+1} + +The Franklin vignette might well be applied to the digital republic that the commoners have built. Except that, instead of asking, “Well, Mr. Stallman and Professor Lessig, what have we got — a free culture or a proprietary tyranny?” the question might better be posed to the commoners themselves. Their very existence answers the question, Tyranny or freedom? Free culture exists. It exists to the extent that people practice its ideals. It is not pervasive; many people have no idea what it is; it overlaps in fuzzy ways with the market. But it is flourishing wherever online communities have devised satisfactory commons structures — through law, software, and social norms — to capture the value that they create. Or, as the American Framers put it, to secure the blessings of liberty to ourselves and our posterity. +={commoners:influence of+3} + +As the preceding chapters make clear, the commoners are now a respected force in culture, politics, and economics. Their influence can be felt in varying degrees in the worlds of music, video, photography, and books; in software, Web design, and Internet policies; in social networks and peer-to-peer communities; in business, science, and education; and in scores of countries that have ported the Creative Commons licenses and developed their own commons-based projects. + +Thanks to the Internet, the commons is now a distinct sector of economic production and social experience. It is a source of “value creation” that both complements and competes with markets. It is an arena of social association, self-governance, and collective provisioning that is responsive and trustworthy in ways that government often is not. In a sense, the commons sector is a recapitulation of civil society, as described by Alexis de Tocqueville, but with different capacities. +={Tocqueville, Alexis de;Internet:socially created value of} + +Yet even with the great advances that the commoners have made in building their own shared platforms, tools, and content, the digital republic is not secure. In most countries, the commoners have less conventional political power than corporations, which means that the interests of citizens, consumers, and users are scanted in the policies that govern market competition, intellectual property, and life on the Internet.~{ For a nice overview of these policy contests, see Yochai Benkler, /{The Wealth of Networks: How Social Production Transforms Markets and Freedom}/ (New Haven, CT: Yale University Press, 2006), chapter 11, “The Battle Over the Institutional Ecology of the Digital Environment,” pp. 383–459. }~ Faced with the Great Value Shift, mass-media and entertainment corporations are not eager to surrender their historic market franchises to newcomers without a fight; they are resisting competition from open business models and the commons. +={Great Value Shift;value;Centralized Media:competition, and;Internet:attempts to control+3} + +In the United States, cable broadcast operators and telephone carriers are threatening the very future of the Internet as a commons infrastructure. They wish to assert greater control over Web access and traffic, and so are staunchly resisting “net neutrality” rules that would require them to act as nondiscriminatory common carriers. They would like to leverage their roles as oligopolistic gatekeepers to the Internet, and boost their revenues, by choosing whose Web sites will receive superior transmission and whose communications may be censored or put in the “slow lane.” +={Internet:net neutrality rules on|future of} + +At a further extreme, authoritarian countries such as China, Saudi Arabia, Egypt, and Singapore have shown that national governments still retain great powers to censor and control Internet communications.~{ Shanthi Kalathil and Taylor C. Boas, /{Open Networks, Closed Regimes: The Impact of the Internet on Authoritarian Rule}/ (Washington, DC: Carnegie Endowment for International Peace, 2003). }~ Even the United States government is reportedly engaged in extensive surveillance of Internet traffic, ostensibly for antiterrorism purposes. Meanwhile, many poor nations, especially in Africa and Asia, are struggling simply to get online and create their own digital commons. + +These battles are all part of a larger struggle over “the institutional ecology of the digital environment,” in Yochai Benkler’s words — a struggle that is likely to continue for many years. What powers and capabilities will the commoners and their institutions have relative to business and government, and how will they be able to protect and enhance the value created within the commons? +={Benkler, Yochai:social movements, on} + +2~ A New Species of Citizenship +={citizenship:new species of+22;democracy:new species of citizenship+22;free culture:new species of citizenship, as+22} + +Perhaps the most enduring contribution of the free software, free culture, and other “open movements” has been their invention of a new species of citizenship. Despite significant differences of philosophy and implementation, these commons share some basic values about access, use, and reuse of creative works and information. No matter their special passions, the commoners tend to be improvisational, resourceful, self-directed, collaborative, and committed to democratic ideals. They celebrate a diversity of aesthetics, viewpoints, and cultures. They are egalitarian in spirit yet respectful of talent and achievement. There is a strong predilection to share because the accrual of digital contributions (code, content, metatags) will lead to a greater good for all and perhaps even democratic change. But there is no hostility to commercial activity — indeed, there is a lively admiration for entrepreneurialism — so long as it does not violate basic creative and civic freedoms or core principles of the Internet (openness, interoperability, sharing). The disagreements that do exist center on how best to achieve those goals. +={free culture:sharing ethic of} + +As this book has shown, the Internet is enabling a new species of citizenship in modern life. It is not just a “nice thing.” It is a powerful force for change. The new technologies have been instrumental in helping the commoners imagine and build a digital republic of their own. Over the long term, this citizenship and the culture that it is fostering are likely to be a politically transformative force. They just might help real-world democracies restore a measure of their waning legitimacy and competence.~{ David Bollier, /{The Rise of Netpolitik: How the Internet Is Changing International Politics and Diplomacy}/ (Washington, DC: Aspen Institute Communications and Society Program, 2003). }~ +={Internet:mass participation in} + +David R. Johnson, a lawyer and scholar, describes the citizen of the Internet — the “netizen” — as a significant historical development because he or she can potentially compete with government as a source of binding rule sets. In a brilliant essay, “The Life of the Law Online,” Johnson writes that “we haven’t had a real competition for survival among rule sets. The competition is only between the rule of (our one) law and, presumably, anarchy. So the tendency of all rule sets to become more complicated over time, especially when written by people considering only parts of the system in analytical isolation, has not been checked by evolutionary forces.”~{ David R. Johnson, “The Life of the Law Online,” /{First Monday}/ 11, no. 2 (February 2006), at http://firstmonday.org/issues/issue11_2/johnson/index.html. }~ Government has an unchecked monopoly on lawmaking even though its relationship to the governed, whose consent is vital, is now greatly attenuated. +={Johnson, David R.+1;commoners:“netizens”+1} + +One evolutionary “competitor” to government-made law and to markets is the netizen — or, in my terms, the commoner. For the most part, members of a commons generate and maintain the rules that govern their collective. By Johnson’s reckoning, the commons must be considered a new social metabolism for creating law; it is a new type of “legal organism.” It is, in Johnson’s words, “a selfcausing legal order composed of systems that adopt goals that serve the values of those they regulate, without excessively imposing those goals on others.” +={commons:new type of legal organism;law:commons as new type of legal organism} + +A commons is a kind of biological entity operating in a complex cultural ecosystem. It has its own internal systems for managing its affairs, interacting with its environment, repairing itself, and defining its own persistent identity. It is a force by which ordinary people can express their deepest interests and passions, directly and without institutional mediation, on a global stage. This is an unprecedented capacity in communications, culture, and, indeed, human history. +={commons:definition of} + +To understand why the commoner represents a great leap forward in citizenship, it helps to consider the history of citizenship in the oldest democracy in the world, the United States. In his book /{The Good Citizen}/, sociologist Michael Schudson describes the evolution of three distinct types of citizenship over the past three centuries: +={Schudson, Michael+2;citizenship:history-making+16;Internet:citizenship, and+16} + +_1 When the nation was founded, being a citizen meant little more than for property-owning white males to delegate authority to a local gentleman — and accept his complimentary glass of rum on election day. This “politics of assent” gave way early in the nineteenth century to a “politics of parties.” Parties conducted elaborate campaigns of torchlight processions and monster meetings; voting day was filled with banter, banners, fighting and drinking. . . . The third model of citizenship, ushered in by Progressive reformers, was a “politics of information.” Campaigning became less emotional and more educational. Voting was by secret ballot.~{ Michael Schudson, /{The Good Citizen: A History of American Civic Life}/ (New York: Free Press, 1998), dust jacket. }~ + +We are heirs to the “politics of information,” a model of citizenship that presumes, as economics does, that we are rational actors who, if armed with sufficient quantities of high-quality information, will make educated decisions and optimize civic outcomes. But as Walter Lippmann noted and Schudson echoes, “if democracy requires omnicompetence and omniscience from its citizens, it is a lost cause.”~{ Ibid., p. 310. }~ Life is too busy, fast, and complex. A new type of citizenship is needed. Schudson offers a fairly weak prescription — the “monitorial citizen,” a watchdog who vigilantly monitors the behavior of power. +={Lippmann, Walter} + +But it is precisely here that the Internet is offering up a new, more muscular model of citizenship. I call it /{history-making citizenship}/. The rise of the blogosphere over the past ten years is emblematic of this new paradigm of citizenship. So is citizen-journalism, free software, Wikipedia, the Open Educational Resources movement, open business models like Jamendo and Flickr, and the Creative Commons and iCommons communities. In one sense, the citizenship that these groups practice is “monitorial” in that their members spend a great deal of time watching and discussing. But “monitoring” barely begins to describe their activities. The commoners have the ability — rare in pre-Internet civic life — to publish and incite others to action, and then organize and follow through, using a growing variety of powerful tools. With the advent of blogs, meetups, social networking, text messaging, and many other digital systems, citizens are able to communicate, coordinate, organize, and take timely action on a wide range of matters, including matters of public and political concern. +={commoners:influence of+1} + +I call the new sorts of citizen behaviors “history-making” because ordinary people are able to assert moral agency and participate in making change.~{ I am inspired in this choice of terms by Charles Spinosa, Frnando Flores, and Hubert L. Dreyfus in their book, /{Disclosing New Worlds: Entrepreneurship, Democratic Action, and the Cultivation of Solidarity}/ (Cambridge, MA: MIT Press, 1997). }~ This capacity is not reserved chiefly to large, impersonal institutions such as corporations, government agencies, and other bureaucracies. It is not a mere “participatory citizenship” in which people can volunteer their energies to a larger a more influential leader, political party, or institution in order to help out. It is a citizenship in which /{the commoners themselves}/ choose projects that suit their talents and passions. Dispersed, unorganized groups of strangers can build their own platforms and social norms for pursuing their goals; instigate public action that would not otherwise occur (and that may clash with the practices of existing institutions); and push forward their own distinctive agenda. +={commons:political implications of} + +These behaviors exist in some measure in offline realms, of course, but they are a growing norm in the digital republic. A few examples will suffice to make the point. The Web helped create and propel a handful of cause-oriented candidacies — Howard Dean, Ron Paul, Ned Lamont~[* Lamont was an insurgent candidate for U.S. Senate from Connecticut challenging Senator Joseph Lieberman in a campaign that helped culturally validate opposition to the U.S. war in Iraq.]~ — who rapidly raised enormous sums of money, galvanized large numbers of passionate supporters, and altered mainstream political discourse. Although none prevailed in their races, Barack Obama made a quantum leap in online organizing in 2008, raising $50 million in a single month from supporters via the Internet. Obama’s candidacy was buoyed by the rise of the “netroots” — Web activists with a progressive political agenda— whose size and credibility enable them to sway votes in Congress, raise significant amounts of campaign funds, and influence local activism. The stories are now legion about blogs affecting political life — from the resignation of Senate majority leader Trent Lott after he praised the racist past of Senator Strom Thurmond at his hundredth birthday party, to the electoral defeat of Senate candidate George Allen after his uttering of an ethnic slur, /{macaca}/, was posted on YouTube. +={Dean, Howard;Lamont, Ned;Obama, Barack;Paul, Ron;Internet:political campaigns on;Allen, George;Lott, Trent;YouTube} + +Citizens are now able to initiate their own policy initiatives without first persuading the mainstream media or political parties to validate them as worthy. For example, a handful of citizens troubled by evidence of “hackable” electronic voting machines exposed the defects of the Diebold machines and the company’s efforts to thwart public scrutiny and reforms.~{ See, e.g.,Yochai Benkler, /{The Wealth of Networks}/, pp. 225–32. }~ (The effort has led to a nationwide citizen effort, www.blackboxvoting.org, to expose security problems with voting machines and vote counting.) An ad hoc group of activists, lawyers, academics, and journalists spontaneously formed around a public wiki dealing with the lethal side effects of a bestselling antipsychotic drug Zyprexa, and the manufacturer’s allegedly illegal conduct in suppressing evidence of the drug’s risks. (Prosecutors later sought a $1 billion fine against Eli Lilly.)~{ Jonah Bossewitch, “The Zyprexa Kills Campaign: Peer Production and the Frontiers of Radical Pedagogy,” /{Re-public}/, at http://www.re-public.gr/en/?p=144. }~ + +The Web is giving individuals extra-institutional public platforms for articulating their own facts and interpretations of culture. It is enabling them to go far beyond voting and citizen vigilance, to mount citizen-led interventions in politics and governance. History-making citizens can compete with the mass media as an arbiter of cultural and political reality. They can expose the factual errors and lack of independence of /{New York Times}/ reporters; reveal the editorial biases of the “MSM” — mainstream media — by offering their own videotape snippets on YouTube; they can even be pacesetters for the MSM, as the blog Firedoglake did in its relentless reporting of the “Scooter” Libby trial (Libby, one of Vice President Cheney’s top aides, was convicted of obstruction of justice and perjury in connection with press leaks about CIA agent Valerie Plame.) Citizen-journalists, amateur videographers, genuine experts who have created their own Web platforms, parodists, dirty tricksters, and countless others are challenging elite control of the news agenda. It is no wonder that commercial journalism is suffering an identity crisis. Institutional authority is being trumped by the “social warranting” of online communities, many of which function as a kind of participatory meritocracy. +={Libby, “Scooter”;YouTube} + +History-making citizenship is not without its deficiencies. Rumors, misinformation, and polarized debate are common in this more open, unmediated environment. Its crowning virtue is its potential ability to mobilize the energies and creativity of huge numbers of people. GNU/Linux improbably drew upon the talents of tens of thousands of programmers; certainly our contemporary world with its countless problems could use some of this elixir— platforms that can elicit distributed creativity, specialized talent, passionate commitment, and social legitimacy. In 2005 Joi Ito, then chairman of the board of the Creative Commons, wrote: “Traditional forms of representative democracy can barely manage the scale, complexity and speed of the issues in the world today. Representatives of sovereign nations negotiating with each other in global dialog are limited in their ability to solve global issues. The monolithic media and its increasingly simplistic representation of the world cannot provide the competition of ideas necessary to reach informed, viable consensus.”~{ Joichi Ito, “Emergent Democracy,” chapter 1 in John Lebkowsky and Mitch Ratcliffe, eds., /{Extreme Democracy}/ (Durham, NC: Lulu.com, 2005), at http://extremedemocracy.com/chapters/Chapter%20One-Ito.pdf. }~ Ito concluded that a new, not-yetunderstood model of “emergent democracy” is likely to materialize as the digital revolution proceeds. A civic order consisting of “intentional blog communities, ad hoc advocacy coalitions and activist networks” could begin to tackle many urgent problems. +={Ito, Joichi;NU/Linux;democracy:emergent+1|traditional forms of+5} + +Clearly, the first imperative in developing a new framework to host representative democracy is to ensure that the electronic commons be allowed to exist in the first place. Without net neutrality, citizens could very well be stifled in their ability to participate on their own terms, in their own voices. If proprietary policies or technologies are allowed to override citizen interests (Verizon Wireless in 2007 prevented the transmission of abortion rights messages on its text-messaging system, for example~{ Adam Liptak, “Verizon Reverses Itself on Abortion Messages,” /{New York Times}/, September 27, 2007, at http://www.nytimes.com/2007/09/27/business/27cnd-verizon.html. }~), then any hope for historymaking citizenship will be stillborn. + +Beyond such near-term concerns, however, the emerging digital republic is embroiled in a much larger structural tension with –terrestrial “real world” governments. The commoner is likely to regard the rules forged in online commons as more legitimate and appropriate than those mandated by government. Again, David R. Johnson: +={Johnson, David R.} + +_1 The goals of a successful legal organism must be agreed upon by those who live within it, because a legal system is nothing more than a collective conversation about shared values. When it ceases to be that kind of internally entailed organism, the law becomes mere power, social “order” becomes tyranny, and the only option, over the long term at least, is war. + +_1 Organisms can’t be repaired from the outside. But, with reference to interactions that take place primarily online, among willing participants who seek primarily to regulate their own affairs, that’s exactly where existing governments are situated — outside the vibrant, self-regulating online spaces they seek to regulate. Their efforts to engineer the Internet as if it were a mechanism are not only fundamentally illegitimate but doomed by the very nature of the thing they seek to regulate. They are trying to create social order, of course. But they have not recognized . . . that order in complex systems creates itself.~{ Johnson, “The Life of the Law Online.” }~ + +After all, he or she is likely to have had a more meaningful personal role in crafting those rules. Now, of course, people live their lives in both online and terrestrial environments; there is no strict division between the two. That said, as people’s lives become more implicated in Internet spaces, citizens are likely to prefer the freedoms and affordances of the open-networked environment to the stunted correlates of offline politics, governance, and law. + +Indeed, this may be why so many activists and idealists are attracted to online venues. There is a richer sense of possibility. Contemporary politics and government have been captured by big money, professionals, and concentrated power. By contrast, in the digital republic, the ethic of transparency deals harshly with institutional manipulations, deceptions, and bad faith. They literally become part of your “permanent record,” forever available via a Google search. More fundamentally, the digital republic has a basic respect for everyone’s ability to contribute. It respects the principle of open access for all. The “consent of the governed” really matters. How sobering it is, then, to return to the “real world” of the American polity — or most other national governments — and realize that “money talks and bullshit walks.” How depressing to realize that the system is highly resistant to ordinary citizen action, such is the mismatch of resources. +={transparency+1;open business models:transparency in} + +The growing dissonance between the American system of governance, as practiced, and the more open, meritocratic online world was surely a factor in Lessig’s decision in 2007 to step down as CEO of Creative Commons, a move that eventually took place in April 2008. Lessig’s crushing responsibilities as the leader of Creative Commons — the international travel, the fund-raising, the strategic planning, the public events and movement obligations — had surely taken its toll. Feeling a personal need for new challenges as well as a responsibility to let new leaders emerge within the CC world, Lessig announced an ambitious new agenda for himself — tackling the “systemic corruption” of the democratic process in Congress. He joined with Joe Trippi, the campaign manager for Howard Dean’s 2004 presidential run, to launch a new organization, Change Congress, which seeks to ban special-interest campaign contributions, secure public financing for campaigns, and bring greater transparency to congressional proceedings. In a shuffle of roles, longtime board member James Boyle — who had been especially active on science and education initiatives — became the new chairman of Creative Commons. Board member Joi Ito, who had been chairman for a brief period, became CEO. +={Boyle, James:CC board, on|chairman, as;Change Congress (organization);Dean, Howard;democracy:corruption in|traditional forms of+1;Trippi, Joe;Lessig, Lawrence:political activity of} + +If Lessig is going to succeed in using the tools of the digital republic to reform and rejuvenate the American polity (and perhaps inspire other governments as well), he will have to confront the rather deeply rooted premises of the official constitutional order. The fast-paced, commons-based governance of the digital republic is naturally going to clash with a system of governance that revolves around bureaucratic hierarchies, a slow-moving system of law, archaic types of political intermediaries, and electoral principles designed for eighteenth-century life. Can the two be reconciled? The structural tensions are likely to be a significant and persistent issue for many, many years. + +2~ A Long-Term Power Shift? +={free culture:political nature of+23} + +It is hard to get a fix on this long-term transformation because the struggles to actualize an emergent democracy, as envisioned by Ito, are strangely apolitical and intensely political at the same time. They are apolitical in the sense that commoners are chiefly focused on the pragmatic technical challenges of their individual projects; they are not usually involved in official policymaking in legislatures or before courts and government agencies. Yet free software and free culture projects are highly political in the sense that commons projects, taken together over time, represent a profound challenge to the conventional market order and political culture. For example, Wikitravel, Jamendo, and open-access journals arguably provide better value than the commercial alternatives. The success of free software punctures the foundational assumptions of copyright law, making it easier to challenge new expansions of copyright law. Participatory commons are diverting viewer “eyeballs” away from commercial media and its genres of culture, spurring the growth of new hybrid forms of user-generated content. These kinds of effects, which advance project by project, month by month, are likely to have a longterm transformational impact. A new social ethic is taking root. +={Ito, Joichi;free software:FOSS/FLOSS+2;FOSS/FLOSS+2;copyright law:assumptions of;democracy:emergent} + +Free culture, though culturally progressive, is fairly nonjudgmental about ideological politics. When American conservatives decided they wanted to start Conservapedia because they found Wikipedia too liberal, Wikipedia founder Jimmy Wales was happy to bless it: “Free culture knows no bounds . . . We welcome the reuse of our work to build variants. That’s directly in line with our mission.”~{ Robert Mackey, “Conservapedia: The Word Says it All,” /{New York Times}/, March 8, 2007, at http://thelede.blogs.nytimes.com/2007/03/08/conservapedia-the-word-says-it-all/?scp=1&sq=wales+conservapedia. }~ Anthropology professor E. Gabriella Coleman has found a similar ecumenicism in the free software movement, which is agnostic about conventional politics but adamant about its own polity of freedom.~{ E. Gabriella Coleman, “The Political Agnosticism of Free and Open Source Software and the Inadvertent Politics of Contrast,” /{Anthropology Quarterly}/ 77, no. 3 (Summer 2004), pp. 507–19. See also her Ph.D. dissertation, “The Social Construction of Freedom in Free and Open Source Software: Hackers, Ethics and the Liberal Tradition,” abstract at http://healthhacker.org/biella/coleman-abstract.pdf. }~ Thus, the FOSS movement has no position with respect to social justice or globalization issues, but it does demand a strict commitment to the “four freedoms” of software development. Johan Söderberg makes much the same case in his book /{Hacking Capitalism}/.~{ Johan Söderberg, /{Hacking Capitalism: The Free and Open Source Software Movement}/ (New York: Routledge, 2007). }~ +={Coleman, E. Gabriella;Wales, Jimmy;Söderberg, Johan} + +As projects like GNU/Linux, Wikipedia, open courseware, open-access journals, open databases, municipal Wi-Fi, collections of CC-licensed content, and other commons begin to cross-link and coalesce, the commons paradigm is migrating from the margins of culture to the center. The viral spiral, after years of building its infrastructure and social networks, may be approaching a Cambrian explosion, an evolutionary leap. +={commons:force for change, as+5} + +History suggests that any new style of politics and polity will arrive through models developed /{from within}/ the edifice of existing law, markets, and culture. A revolutionary coup or showdown with existing institutions will not be necessary. Superior working models — running code and a healthy commons — will trump polemics and exhortation. + +Ideological activists and political professionals are likely to scoff at this scenario. After all, they are suspicious of distributed political power, if not hostile to it. They prefer the levers of consolidated power (laws, court rulings, police powers) that are within their sphere of influence to the dispersed, sovereign powers of an online multitude. The latter is highly resistant to capture and control, and in that sense, profoundly threatening to the traditional configurations of political power. We have already seen how the mandarins of journalism, politics, and business are quick to lash out at the noncredentialed masses who dare to put forward their own interpretations of the world. + +However necessary it is to engage in the official governance of a nation, corrupted though it may be, the commoners have shown that building their own functioning commons can be a powerful force for change as well. A commons of technical standards for the Web — how mundane! — can achieve more than most antitrust lawsuits. A common pool of information can prevent a company from reaping easy monopoly rents from the control of a public good. Instead, the company must “move upstream” to provide more specialized forms of value (for example, sophisticated graphing of the information or data analysis). A commons may also be affirmatively helpful to businesses, as Eric von Hippel has shown, by aggregating a body of aficionados into a social community that can articulate customer needs and preferences in highly efficient ways: the commons as a cheap form of R & D and marketing. + +In either case, the rise of a commons can be disruptive not just because it changes how market power is exercised, but because it may disperse power to a broader community of participants. Recall Johnson’s observation that a commons is a “self-causing legal order” that competes with other legal orders. Individuals who affiliate with an online community may acquire the ability to manage their own social relationships and group identity. +={Johnson, David R.;commons:new type of legal organism+1;law:commons as new type of legal organism+1|political implications of+1;democracy:power of the commons in+1} + +This is not just a form of marketplace power, it is a form of /{political}/ power. In effect, a group may be able to neutralize the power of corporations to use brands to organize their identities. By developing its own discourse and identity, an online community can reject their treatment as a demographic cohort of consumers. They can assert their broader, nonmarket concerns. As a group of commoners, they are less susceptible to propaganda, ideology, and commercial journalism as tools for organizing their political allegiances. They have greater civic sovereignty. + +“Free cooperation aims at distributing power,” argues Geert Lovink, a Dutch media theorist: +={Lovink, Geert+1} + +_1 I am not saying that power as such disappears, but there is certainly a shift, away from the formal into the informal, from accountable structures towards a voluntary and temporal connection. We have to reconcile with the fact that these structures undermine the establishment, but not through recognizable forms of resistance. The “anti” element often misses. This is what makes traditional, unreconstructed lefties so suspicious, as these networks just do their thing and do not fit into this or that ideology, be it neoliberal or autonomous Marxist. Their vagueness escapes any attempt to deconstruct their intention either as proto-capitalist or subversive.~{ Geert Lovink, “Theses on Wiki Politics,” an exchange with Pavlos Hatzopoulos, /{Re-public}/, at http://www.re-public.gr/en/?p=135. }~ + +This can be disorienting. Energies are not focused on resisting an oppressor, but rather on building innovative, positive alternatives. In Buckminster Fuller’s terms, free culture is mostly about building new models that make the existing models obsolete. Instead of forging an identity in relation to an adversary, the movement has built an identity around an affirmative vision and the challenge of /{becoming}/. People feel fairly comfortable with a certain level of ambiguity because the whole environment is so protean, diverse, evolving, and dynamic. +={Fuller, R. Buckminster} + +The GPL and the CC licenses are ingenious hacks because they navigate this indeterminate ideological space with legally enforceable tools, while looking to informal social practice and norms to provide stable governance. (“Order without law,” in law professor Robert Ellickson’s formulation.)~{ Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 2005). }~ The licenses use the existing legal order to achieve their goals (the sharing of tools and content), and so the strategies are not seen as politically provocative. Yet the licenses are nonetheless politically transformative because they help new communities of practice to organize themselves and do work that may question core premises of copyright law, conventional economics, and government policy in general. +={Ellickson, Robert} + +The beauty of this “ideological straddle” is that it enables a diverse array of players into the same tent without inciting sectarian acrimony. (There is some, of course, but mostly at the margins.) Ecumenical tolerance is the norm because orthodoxies cannot take root at the periphery where innovation is constantly being incubated. In any case, there is a widespread realization in the networked world that shared goals are likely to require variable implementations, depending on specific needs and contexts. + +It may appear that the free software hacker, blogger, tech entrepreneur, celebrity musician, college professor, and biological researcher have nothing in common. In truth, each is participating in social practices that are incrementally and collectively bringing into being a new sort of democratic polity. French sociologist Bruno Latour calls it the “pixellation of politics,”~{ Bruno Latour, “We Are All Reactionaries Today,” Re-public, at http://www.republic.gr/en/?p=129. }~ which conjures up a pointillist painting slowly materializing. The new polity is more open, participatory, dynamically responsive, and morally respected by “the governed” than the nominal democracies of nation-states. The bureaucratic state tends to be too large and remote to be responsive to local circumstances and complex issues; it is ridiculed and endured. But who dares to aspire to transcend it? +={Latour, Bruno} + +Sooner or later, history-making citizenship is likely to take up such a challenge. It already has. What is the digital republic, after all, but a federation of self-organized communities, each seeking to fulfill its members’ dreams by developing its own indigenous set of tools, rules, and ethics? The power of the commons stems from its role as an organizing template, and not an ideology. Because it is able to host a diverse and robust ecosystem of talent without squeezing it into an ideological straitjacket, the commons is flexible and resilient. It is based on people’s sincerest passions, not on remote institutional imperatives or ideological shibboleths. It therefore has a foundational support and energy that can outperform “mainstream” institutions. +={citizenship:history-making+1;commons:political implications of+1} + +This, truly, is the animating force of the viral spiral: the capacity to build one’s own world and participate on a public stage. (Cicero: “Freedom is participation in power.”) When such energies are let loose in an open, networked environment, all sorts of new and interesting innovations emerge. Since an online commons does not have the burden of turning a profit or supporting huge overhead, it can wait for serendipity, passion, and idiosyncratic brilliance to surface, and then rely on the Internet to propagate the fruits virally. +={Cicero:on freedom} + +Oddly enough, entrenched commercial interests do not seem to be alarmed by the disruptive long-term implications of free culture. If the users of CC licenses genuflect before the altar of copyright law, it would appear, that is sufficient. Due respect is being shown. Meanwhile, at the level of social practice, the commoners are gradually building a very different moral economy that converges, from different paths, on a new type of civic order. In /{Code}/, Lessig called it “freedom without anarchy, control without government, consensus without power.” +={Lessig, Lawrence:Code and Other Laws of Cyberspace|freedom, and} + +It is not entirely clear how the special capacities of bottom-up networks — a “non-totalizing system of structure that nonetheless acts as a whole,” in Mark Taylor’s words — can be integrated with conventional government and institutions of power. It is easy to imagine a future confrontation in the political culture, however, as the citizens of the digital republic confront the stodgy bureaucratic state (corporate and governmental). The latter will have the advantages of constitutional authority and state and economic power, but the former are likely to have the advantages of social legitimacy, superior on-the-ground information, and creative energy. How the digital republic will confront the old regime, or supplant it gradually as archaic institutions collapse over time, is the stuff of future history. +={Taylor, Mark;citizenship:history-making+1} + +Theory has its limits. The building of the digital republic was in many ways animated by theory, of course, chiefly the rejection of certain theories of copyright law and the invention of new narratives about creativity and the commons. But this project has not been an intellectual, theory-driven enterprise so much as a vast, collective enterprise of history-making citizenship. Using the affordances of digital technologies, individuals have stepped out of their customary or assigned roles to invent entirely new vehicles for creativity, social life, business, politics, science, and education. Individuals have come together to make some remarkable new tools and institutions to serve their needs and preferences. +={commons:sources of new ideas, as+3} + +The story of the commons is, in this sense, the story of a series of public-spirited individuals who are determined to build new vehicles for protecting shared wealth and social energies. It is the story of Richard Stallman fighting the privatization of software and the disenfranchisement of the hacker community. It is the story of Eric Eldred’s determination to go to jail if necessary to defend his ability to build a Web site for great American literature. The viral spiral, as I have called it, truly gained momentum when Lawrence Lessig, as a boundary-breaking law professor, decided to mount a constitutional test case and then to assemble a larger effort to imagine and build a new licensing scheme for sharing. +={Stallman, Richard;Eldred, Eric:public domain, and;Lessig, Lawrence:law in contemporary context, and;software:proprietary} + +The viral spiral then spins off in dozens of directions as newly empowered people discover the freedoms and satisfactions that can accrue to them through this ancient yet now rediscovered and refurbished social vessel. Taken together, countless commons projects are validating some new models of human aspiration. Instead of presuming that a society must revolve around competitive individuals seeking private, material gain (the height of “rationality,” economists tell us), the commons affirms a broader, more complex, and more enlightened paradigm of human self-interest. If the Invisible Hand presumes to align private interest and the public good, the commons has shown that cooperation and sharing can also serve this goal with great versatility and sophistication. +={commoners:sharing by} + +Over the long term, the real meaning of the viral spiral may lie in our discovery that the new platforms that we use to create and organize knowledge, and relate to one another, is changing how we think and how we conceptualize our place in the world. John Seely Brown, the former director of Xerox PARC, has said, “From my perspective, a key property of participatory cultures is that they help to create both a culture of learning and a culture of doing. The social basis of doing (e.g. networked communities of interest/ practice) that you see emerging here actually form reflective practicum(s). This, in turn, ends up grounding epistemology — ways of knowing — and provides a pathway back to a kind of pragmatism that Dewey first talked about that is situated between realism and idealism. This is the pathway to creating a learning society and a culture that can embrace change by unleashing and affording productive inquiry in powerful and exciting ways.”~{ John Seely Brown, personal communication, January 26, 2008. }~ +={Brown, John Seely;Dewey, John} + +By empowering us to “step into history” and take greater responsibility for more aspects of our lives, it is no exaggeration to say that the commons encourages us to become more integrated human beings. We learn to integrate our production with our consumption, our learning with our doing, and our ideals with practical realities. This is surely why the viral spiral has been so powerfully transformative. It has helped bring our personal needs and interests into a closer, more congenial alignment with the institutions that serve us. We may be caught in a messy transition, and there remains much to negotiate and debate, but we should count our blessings. Few generations are as fortunate in being able to imagine and build a new commons sector of such liberating potential. +={citizenship:history-making} + -- cgit v1.2.3 From 1b5bf4d71a339d98ec97996920eb81b526f1d626 Mon Sep 17 00:00:00 2001 From: Ralph Amissah Date: Wed, 12 Dec 2012 10:22:32 -0500 Subject: v3: re-arranging, update, fixes * re-arranging: mostly headers * update: mostly line breaks \\ instead of
* fixes: book index related; typos; add a couple of missing images, etc. --- ..._in_freedom_2_01_pdp_1_processor_with_kl_10.png | Bin 0 -> 242735 bytes .../free_as_in_freedom_2_02_rms_st_ignucius.png | Bin 0 -> 187827 bytes data/v3/samples/_sisu/sisurc_SAMPLE.yml | 110 +++++++++++ data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb | 216 --------------------- data/v3/samples/accelerando.charles_stross.sst | 35 ++-- data/v3/samples/autonomy_markup0.sst | 29 ++- data/v3/samples/content.cory_doctorow.sst | 31 ++- .../democratizing_innovation.eric_von_hippel.sst | 50 ++--- ..._and_out_in_the_magic_kingdom.cory_doctorow.sst | 44 ++--- data/v3/samples/for_the_win.cory_doctorow.sst | 41 ++-- ...lman_crusade_for_free_software.sam_williams.sst | 142 +++++++------- ...re_revolution.sam_williams.richard_stallman.sst | 30 ++- data/v3/samples/free_culture.lawrence_lessig.sst | 34 +--- data/v3/samples/free_for_all.peter_wayner.sst | 146 +++++++------- data/v3/samples/gpl2.fsf.sst | 15 +- data/v3/samples/gpl3.fsf.sst | 27 ++- data/v3/samples/little_brother.cory_doctorow.sst | 33 ++-- ...the_cathedral_and_the_bazaar.eric_s_raymond.sst | 42 ++-- data/v3/samples/the_public_domain.james_boyle.sst | 30 ++- .../the_wealth_of_networks.yochai_benkler.sst | 56 +++--- data/v3/samples/two_bits.christopher_kelty.sst | 38 ++-- ...international_sale_of_goods_convention_1980.sst | 10 +- data/v3/samples/viral_spiral.david_bollier.sst | 40 ++-- 23 files changed, 471 insertions(+), 728 deletions(-) create mode 100644 data/v3/samples/_sisu/image/free_as_in_freedom_2_01_pdp_1_processor_with_kl_10.png create mode 100644 data/v3/samples/_sisu/image/free_as_in_freedom_2_02_rms_st_ignucius.png create mode 100644 data/v3/samples/_sisu/sisurc_SAMPLE.yml delete mode 100644 data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb (limited to 'data/v3') diff --git a/data/v3/samples/_sisu/image/free_as_in_freedom_2_01_pdp_1_processor_with_kl_10.png b/data/v3/samples/_sisu/image/free_as_in_freedom_2_01_pdp_1_processor_with_kl_10.png new file mode 100644 index 0000000..679c22a Binary files /dev/null and b/data/v3/samples/_sisu/image/free_as_in_freedom_2_01_pdp_1_processor_with_kl_10.png differ diff --git a/data/v3/samples/_sisu/image/free_as_in_freedom_2_02_rms_st_ignucius.png b/data/v3/samples/_sisu/image/free_as_in_freedom_2_02_rms_st_ignucius.png new file mode 100644 index 0000000..9ed7b35 Binary files /dev/null and b/data/v3/samples/_sisu/image/free_as_in_freedom_2_02_rms_st_ignucius.png differ diff --git a/data/v3/samples/_sisu/sisurc_SAMPLE.yml b/data/v3/samples/_sisu/sisurc_SAMPLE.yml new file mode 100644 index 0000000..ab13f22 --- /dev/null +++ b/data/v3/samples/_sisu/sisurc_SAMPLE.yml @@ -0,0 +1,110 @@ +# Name: SiSU +# Author: ralph@amissah.com +# Description: site or directory wide environment defaults set here +# system environment info / resource configuration file, for sisu +# License: GPL v3 or later +# this file should be configured and live in +# /etc/sisu #per environment settings, overridden by: +# ~/.sisu #per user settings, overridden by: +# ./_sisu/config #per local directory settings +#% presentation/web directory, main path and subdirectories (most subdirectories are created automatically based on markup directory name) +webserv: +# #url_root: 'http://www.sisudoc.org' #without dir stub, e.g. this dir would map to http://www.sisudoc.org/samples +# #path: './tested' #either (i) / [full path from root] or (ii) ~/ [home] or (iii) ./ [pwd] or (iv) will be made from home +# #images: 'sisu/image' +# #man: 'man' +# #cgi: '/usr/local/lib/sisu-cgi' +##show_output_on: 'filesystem' #for -v and -u url information, alternatives: 'filesystem','webserver','remote_webserver','local:8111','localhost','localhost:8080','webrick','path' +webserv_cgi: +# host: localhost +# base_path: ~ +# port: '8081' +# user: ~ +# file_links: webserv # www.sisudoc.org +#show_output_on: 'filesystem_url' +#% processing directories, main path and subdirectories +processing: +## path: '~' +## dir: '_sisu_processing~' +## metaverse: 'metaverse' +## tune: 'tune' +## latex: 'tex' +## texinfo: 'texinfo' +## concord_max: 400000 +#% flag - set (non-default) processing flag shortcuts -1, -2 etc. (here adding colour and verbosity as default) +flag: + color: true # making colour default -c is toggle, and will now toggle colour off +# default: '-NQhewpotbxXyYv' # includes verbose; -m would in any event be run by default +# i: '-NQhewpoty' # -m run by default +# ii: '-NQhewpotbxXy' # -m run by default +# iii: '-NQhewpotbxXyY' # -m run by default +# iv: '-NQhewpotbxXYDy --update' # -m run by default +# v: '-NQhewpotbxXYDyv --update' # includes verbose; -m run by default +#% papersize, (LaTeX/pdf) current values A4, US_letter, book_b5, book_a5, US_legal, easily extensible +default: + papersize: 'A4,letter' #'A4,letter,b5,a5' +# #texpdf_font: 'Liberation Sans' +# #texpdf_font_sans: 'Liberation Sans' +# #texpdf_font_serif: 'Liberation Serif' +# #texpdf_font_mono: 'Liberation Mono' #'Inconsolata' +# #text_wrap: 78 +# #emphasis: 'bold' #make *{emphasis}* 'bold', 'italics' or 'underscore', default if not configured is 'bold' +# #language: 'fr' +# #language: 'en' +# digest: 'sha' #sha is sha256, default is md5 +#% settings used by ssh scp +#remote: +# #user: 'ralph' +# #host: 'sisudoc.org' +# #path: '.' #no trailing slash eg 'sisu/www' +#% webrick information +#% sql database info, postgresql +#db: +# engine: +# default: 'postgresql' +## share_source: true +# postgresql: +# port: '5432' # '5432' +# user: 'ralph' # '[provide username]' +# #host: 'sisudoc.org' +# +#% output_dir_structure_by: language (language_and_filetype); filetype; or filename (original v1 & v2) +##output_dir_structure_by: filename +##output_dir_structure_by: filetype +#output_dir_structure_by: language +# +#% possible values ~, true, false, or command instruction e.g. editor: 'gvim -c :R -c :S'. +##will only ignore if value set to false, absence or nil will not remove program as should operate without rc file +##ie in case of ~ will ignore and use hard coded defaults within program), true, false, or command instruction e.g. editor: 'gvim -c :R -c :S' +##on value true system defaults used, to change, e.g. editor specify +#permission_set: +# zap: true +# css_modify: true +# remote_base_site: true +#program_set: +# rmagick: true +# wc: true +# editor: true +# postgresql: true +# sqlite: true +# tidy: true +# rexml: true +# pdflatex: true +#program_select: +# editor: 'vim' #'gvim -c :R' +# pdf_viewer: 'evince' +# web_browser: 'iceweasel' +# console_web_browser: 'links2' +# epub_viewer: 'ebook-viewer' #'calibre' 'fbreader' +# odf_viewer: 'lowriter' +# xml_viewer: 'xml-viewer' +#search: +# sisu: +# flag: true +# action: http://search.sisudoc.org +# db: sisu +# title: 'SiSU search form (sample)' +#html: +# minitoc: true +#manifest: +# minitoc: true diff --git a/data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb b/data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb deleted file mode 100644 index 148fbae..0000000 --- a/data/v3/samples/_sisu/skin/doc/skin_gutenberg.rb +++ /dev/null @@ -1,216 +0,0 @@ -# coding: utf-8 -=begin - * Name: SiSU - Simple information Structuring Universe - Structured information, Serialized Units - * Author: Ralph Amissah - * http://www.jus.uio.no/sisu - * http://www.jus.uio.no/sisu/SiSU/download - * Description: Document skin sample prepared for Gutenberg Project (first used with "War and Peace") - * License: Same as SiSU see http://www.jus.uio.no/sisu - * Notes: Site default appearance variables set in defaults.rb - Generic site wide modifications set here scribe_skin.rb, and this file required by other "scribes" instead of defaults.rb -=end -module SiSU_Viz - require "#{SiSU_lib}/defaults" - class Skin - #% path - def path_root # the only parameter that cannot be changed here - './sisu/' - end - def path_rel - '../' - end - #% url - def url_home - 'http://www.gutenberg.net' - end - def url_txt # text to go with url usually stripped url - 'www.gutenberg.net' - end - #% txt - def txt_hp - 'www.gutenberg.net' - end - def txt_home - 'Gutenberg Project' - end - #% icon - def icon_home_button - 'gutenberg.home.png' - end - def icon_home_banner - icon_home_button - end - #% banner - def banner_home_button - %{
#{png_home}
\n} - end - def banner_home_and_index_buttons - %{
#{png_home}
 This text sub- 
 Table of Contents 
 
} - end - def banner_band - %{
#{png_home}#{table_close}} - end - #% credits - def credits_splash - %{
Gutenberg Project
Courtesy of The Gutenberg Project
} - end - end - class TeX - def header_center - "\\chead{\\href{#{@vz.url_home}}{www.gutenberg.net}}" - end - def home_url - "\\href{#{@vz.url_home}}{www.gutenberg.net}" - end - def home - "\\href{#{@vz.url_home}}{Gutenberg Project}" - end - def owner_chapter - "Document owner details" - end - end - class Inserts - def insert1 -< - -CONTENTS - end - end -end - diff --git a/data/v3/samples/accelerando.charles_stross.sst b/data/v3/samples/accelerando.charles_stross.sst index 24eabd8..0693204 100644 --- a/data/v3/samples/accelerando.charles_stross.sst +++ b/data/v3/samples/accelerando.charles_stross.sst @@ -5,6 +5,10 @@ @creator: :author: Stross, Charles +@date: + :published: 2005-07-05 + :available: 2005-07-05 + @rights: :copyright: Copyright (C) Charles Stross, 2005. :license: Creative Commons License, Attribution-NonCommercial-NoDerivs 2.0: * Attribution. You must attribute the work in the manner specified by the author or licensor; * Noncommercial. You may not use this work for commercial purposes; * No Derivative Works. You may not alter, transform, or build upon this work; * For any reuse or distribution, you must make clear to others the license terms of this work. (* For any reuse or distribution, you must make clear to others the license terms of this work. * Any of these conditions can be waived if you get permission from the copyright holder.) http://creativecommons.org/licenses/by-nc-nd/2.0/ These SiSU presentations of Accelerando are done with the kind permission of the author Charles Stross @@ -12,37 +16,24 @@ @source: http://www.accelerando.org/ @classify: - :subject: Science Fiction :topic_register: SiSU:markup sample:book;book:novel:science fiction|short stories;fiction:science fiction|artificial intelligence + :subject: Science Fiction :type: science fiction :oclc: 57682282 :isbn: 9780441012848 -@date: - :published: 2005-07-05 - :available: 2005-07-05 +@links: + { Accelerando home }http://www.accelerando.org/ + { @ Wikipedia }http://en.wikipedia.org/wiki/Accelerando_%28novel%29 + { @ Amazon.com}http://www.amazon.com/gp/product/0441014151 + { @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0441014151 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :headings: none; none; PART; Chapter; - :skin: skin_accelerando_stross :breaks: new=:A,:B; break=:C,1 - -@links: - { Accelerando home }http://www.accelerando.org/ - { Accelerando, Charlie Stross @ SiSU }http://www.jus.uio.no/sisu/accelerando.charlie_stross - { @ Wikipedia }http://en.wikipedia.org/wiki/Accelerando_%28novel%29 - { Syntax }http://www.jus.uio.no/sisu/sample/syntax/accelerando.charles_stross.sst.html - {@ Amazon.com}http://www.amazon.com/gp/product/0441014151 - {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0441014151 - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - { Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow - { Free Culture, Lawrence Lessig @ SiSU }http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - { The Wealth of Networks, Yochai Benkler @ SiSU }http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - { Viral Spiral, David Bollier@ SiSU }http://www.jus.uio.no/sisu/viral_spiral.david_bollier - { Democratizing Innovation, Eric von Hippel @ SiSU }http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - { Two Bits, Christopher Kelty @ SiSU }http://www.jus.uio.no/sisu/two_bits.christopher_kelty - { Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU }http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + :skin: skin_accelerando_stross % book cover shot (US) book cover shot (UK) diff --git a/data/v3/samples/autonomy_markup0.sst b/data/v3/samples/autonomy_markup0.sst index 5803660..0f26f9b 100644 --- a/data/v3/samples/autonomy_markup0.sst +++ b/data/v3/samples/autonomy_markup0.sst @@ -6,40 +6,33 @@ @creator: :author: Amissah, Ralph +@date: + :published: 2000-08-27 + @rights: :copyright: Copyright (C) Ralph Amissah @classify: - :type: article - :subject: international contracts, international commercial arbitration, private international law :topic_register: SiSU:markup sample:article;law:international:commercial arbitration|uniform law|harmonization;private law;arbitration:international commercial + :subject: international contracts, international commercial arbitration, private international law -@date: - :published: 2000-08-27 +@links: + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :italics: /CISG|PICC|PECL|UNCITRAL|UNIDROIT|lex mercatoria|pacta sunt servanda|caveat subscriptor|ex aequo et bono|amiable compositeur|ad hoc/i :num_top: 1 -@links: - {Syntax}http://www.jus.uio.no/sisu/sample/syntax/autonomy_markup0.sst.html - {The Autonomous Contract}http://www.jus.uio.no/lm/the.autonomous.contract.07.10.1997.amissah/toc.html - {Contract Principles}http://www.jus.uio.no/lm/private.international.commercial.law/contract.principles.html - {UNIDROIT Principles}http://www.jus.uio.no/lm/unidroit.international.commercial.contracts.principles.1994.commented/toc.html - {Sales}http://www.jus.uio.no/lm/private.international.commercial.law/sale.of.goods.html - {CISG}http://www.jus.uio.no/lm/un.contracts.international.sale.of.goods.convention.1980/doc.html - {Arbitration}http://www.jus.uio.no/lm/arbitration/toc.html - {Electronic Commerce}http://www.jus.uio.no/lm/electronic.commerce/toc.html - % (Draft 0.90 - 2000-08-27) -:A~ @title @author~{* Ralph Amissah is a Fellow of Pace University, Institute for International Commercial Law. http://www.cisg.law.pace.edu/
RA lectured on the private law aspects of international trade whilst at the Law Faculty of the University of Tromsø, Norway. http://www.jus.uit.no/
RA built the first web site related to international trade law, now known as lexmercatoria.org and described as "an (international | transnational) commercial law and e-commerce infrastructure monitor". http://lexmercatoria.org/
RA is interested in the law, technology, commerce nexus. RA works with the law firm Amissahs.
/{[This is a draft document and subject to change.]}/
All errors are very much my own.
ralph@amissah.com }~ +:A~ @title @author~{* Ralph Amissah is a Fellow of Pace University, Institute for International Commercial Law. http://www.cisg.law.pace.edu/ \\ RA lectured on the private law aspects of international trade whilst at the Law Faculty of the University of Tromsø, Norway. http://www.jus.uit.no/ \\ RA built the first web site related to international trade law, now known as lexmercatoria.org and described as "an (international | transnational) commercial law and e-commerce infrastructure monitor". http://lexmercatoria.org/ \\ RA is interested in the law, technology, commerce nexus. RA works with the law firm Amissahs. \\ /{[This is a draft document and subject to change.]}/ \\ All errors are very much my own. \\ ralph@amissah.com }~ 1~ Reinforcing trends: borderless technologies, global economy, transnational legal solutions? Revisiting the Autonomous Contract~{ /{The Autonomous Contract: Reflecting the borderless electronic-commercial environment in contracting}/ was published in /{Elektronisk handel - rettslige aspekter, Nordisk årsbok i rettsinformatikk 1997}/ (Electronic Commerce - Legal Aspects. The Nordic yearbook for Legal Informatics 1997) Edited by Randi Punsvik, or at http://www.jus.uio.no/lm/the.autonomous.contract.07.10.1997.amissah/doc.html }~ -Globalisation is to be observed as a trend intrinsic to the world economy.~{ As Maria Cattaui Livanos suggests in /{The global economy - an opportunity to be seized}/ in /{Business World}/ the Electronic magazine of the International Chamber of Commerce (Paris, July 1997) at http://www.iccwbo.org/html/globalec.htm
"Globalization is unstoppable. Even though it may be only in its early stages, it is already intrinsic to the world economy. We have to live with it, recognize its advantages and learn to manage it.
That imperative applies to governments, who would be unwise to attempt to stem the tide for reasons of political expediency. It also goes for companies of all sizes, who must now compete on global markets and learn to adjust their strategies accordingly, seizing the opportunities that globalization offers."}~ Rudimentary economics explains this runaway process, as being driven by competition within the business community to achieve efficient production, and to reach and extend available markets.~{To remain successful, being in competition, the business community is compelled to take advantage of the opportunities provided by globalisation.}~ Technological advancement particularly in transport and communications has historically played a fundamental role in the furtherance of international commerce, with the Net, technology's latest spatio-temporally transforming offering, linchpin of the "new-economy", extending exponentially the global reach of the business community. The Net covers much of the essence of international commerce providing an instantaneous, low cost, convergent, global and borderless: information centre, marketplace and channel for communications, payments and the delivery of services and intellectual property. The sale of goods, however, involves the separate element of their physical delivery. The Net has raised a plethora of questions and has frequently offered solutions. The increased transparency of borders arising from the Net's ubiquitous nature results in an increased demand for the transparency of operation. As economic activities become increasingly global, to reduce transaction costs, there is a strong incentive for the "law" that provides for them, to do so in a similar dimension. The appeal of transnational legal solutions lies in the potential reduction in complexity, more widely dispersed expertise, and resulting increased transaction efficiency. The Net reflexively offers possibilities for the development of transnational legal solutions, having in a similar vein transformed the possibilities for the promulgation of texts, the sharing of ideas and collaborative ventures. There are however, likely to be tensions within the legal community protecting entrenched practices against that which is new, (both in law and technology) and the business community's goal to reduce transaction costs. +Globalisation is to be observed as a trend intrinsic to the world economy.~{ As Maria Cattaui Livanos suggests in /{The global economy - an opportunity to be seized}/ in /{Business World}/ the Electronic magazine of the International Chamber of Commerce (Paris, July 1997) at http://www.iccwbo.org/html/globalec.htm \\ "Globalization is unstoppable. Even though it may be only in its early stages, it is already intrinsic to the world economy. We have to live with it, recognize its advantages and learn to manage it. \\ That imperative applies to governments, who would be unwise to attempt to stem the tide for reasons of political expediency. It also goes for companies of all sizes, who must now compete on global markets and learn to adjust their strategies accordingly, seizing the opportunities that globalization offers."}~ Rudimentary economics explains this runaway process, as being driven by competition within the business community to achieve efficient production, and to reach and extend available markets.~{To remain successful, being in competition, the business community is compelled to take advantage of the opportunities provided by globalisation.}~ Technological advancement particularly in transport and communications has historically played a fundamental role in the furtherance of international commerce, with the Net, technology's latest spatio-temporally transforming offering, linchpin of the "new-economy", extending exponentially the global reach of the business community. The Net covers much of the essence of international commerce providing an instantaneous, low cost, convergent, global and borderless: information centre, marketplace and channel for communications, payments and the delivery of services and intellectual property. The sale of goods, however, involves the separate element of their physical delivery. The Net has raised a plethora of questions and has frequently offered solutions. The increased transparency of borders arising from the Net's ubiquitous nature results in an increased demand for the transparency of operation. As economic activities become increasingly global, to reduce transaction costs, there is a strong incentive for the "law" that provides for them, to do so in a similar dimension. The appeal of transnational legal solutions lies in the potential reduction in complexity, more widely dispersed expertise, and resulting increased transaction efficiency. The Net reflexively offers possibilities for the development of transnational legal solutions, having in a similar vein transformed the possibilities for the promulgation of texts, the sharing of ideas and collaborative ventures. There are however, likely to be tensions within the legal community protecting entrenched practices against that which is new, (both in law and technology) and the business community's goal to reduce transaction costs. Within commercial law an analysis of law and economics may assist in developing a better understanding of the relationship between commercial law and the commercial sector it serves.~{ Realists would contend that law is contextual and best understood by exploring the interrelationships between law and the other social sciences, such as sociology, psychology, political science, and economics.}~ "...[T]he importance of the interrelations between law and economics can be seen in the twin facts that legal change is often a function of economic ideas and conditions, which necessitate and/or generate demands for legal change, and that economic change is often governed by legal change."~{ Part of a section cited in Mercuro and Steven G. Medema, /{Economics and the Law: from Posner to Post-Modernism}/ (Princeton, 1997) p. 11, with reference to Karl N. Llewellyn The Effect of Legal Institutions upon Economics, American Economic Review 15 (December 1925) pp 655-683, Mark M. Litchman Economics, the Basis of Law, American Law Review 61 (May-June 1927) pp 357-387, and W. S. Holdsworth A Neglected Aspect of the Relations between Economic and Legal History, Economic History Review 1 (January 1927-1928) pp 114-123.}~ In doing so, however, it is important to be aware that there are several competing schools of law and economics, with different perspectives, levels of abstraction, and analytical consequences of and for the world that they model.~{ For a good introduction see Nicholas Mercuro and Steven G. Medema, /{Economics and the Law: from Posner to Post-Modernism}/ (Princeton, 1997). These include: Chicago law and economics (New law and economics); New Haven School of law and economics; Public Choice Theory; Institutional law and economics; Neoinstitutional law and economics; Critical Legal Studies.}~ @@ -75,7 +68,7 @@ This framework provided by /{"ICA"}/ opened the door for the modelling of effect 1~ "State contracted international law" and/or "institutionally offered lex"? CISG and PICC as examples -An institutionally offered lex ("IoL", uniform rules and principles) appear to have a number of advantages over "State contracted international law" ("ScIL", model laws, treaties and conventions for enactment). The development and formulation of both "ScIL" and "IoL" law takes time, the CISG representing a half century of effort~{ /{UNCITRAL Convention on Contracts for the International Sale of Goods 1980}/ see at http://www.jus.uio.no/lm/un.contracts.international.sale.of.goods.convention.1980/
The CISG may be regarded as the culmination of an effort in the field dating back to Ernst Rabel, (/{Das Recht des Warenkaufs}/ Bd. I&II (Berlin, 1936-1958). Two volume study on sales law.) followed by the Cornell Project, (Cornell Project on Formation of Contracts 1968 - Rudolf Schlesinger, Formation of Contracts. A study of the Common Core of Legal Systems, 2 vols. (New York, London 1968)) and connected most directly to the UNIDROIT inspired /{Uniform Law for International Sales}/ (ULIS http://www.jus.uio.no/lm/unidroit.ulis.convention.1964/ at and ULF at http://www.jus.uio.no/lm/unidroit.ulf.convention.1964/ ), the main preparatory works behind the CISG (/{Uniform Law on the Formation of Contracts for the International Sale of Goods}/ (ULF) and the /{Convention relating to a Uniform Law on the International Sale of Goods}/ (ULIS) The Hague, 1964.). }~ and PICC twenty years.~{ /{UNIDROIT Principles of International Commercial Contracts}/ commonly referred to as the /{UNIDROIT Principles}/ and within this paper as PICC see at http://www.jus.uio.no/lm/unidroit.contract.principles.1994/ and http://www.jus.uio.no/lm/unidroit.international.commercial.contracts.principles.1994.commented/
The first edition of the PICC were finalised in 1994, 23 years after their first conception, and 14 years after work started on them in earnest. }~ The CISG by UNCITRAL represents the greatest success for the unification of an area of substantive commercial contract law to date, being currently applied by 57 States,~{ As of February 2000. }~ estimated as representing close to seventy percent of world trade and including every major trading nation of the world apart from England and Japan. To labour the point, the USA most of the EU (along with Canada, Australia, Russia) and China, ahead of its entry to the WTO already share the same law in relation to the international sale of goods. "ScIL" however has additional hurdles to overcome. *(a)* In order to enter into force and become applicable, it must go through the lengthy process of ratification and accession by States. *(b)* Implementation is frequently with various reservations. *(c)* Even where widely used, there are usually as many or more States that are exceptions. Success, that is by no means guaranteed, takes time and for every uniform law that is a success, there are several failures. +An institutionally offered lex ("IoL", uniform rules and principles) appear to have a number of advantages over "State contracted international law" ("ScIL", model laws, treaties and conventions for enactment). The development and formulation of both "ScIL" and "IoL" law takes time, the CISG representing a half century of effort~{ /{UNCITRAL Convention on Contracts for the International Sale of Goods 1980}/ see at http://www.jus.uio.no/lm/un.contracts.international.sale.of.goods.convention.1980/ \\ The CISG may be regarded as the culmination of an effort in the field dating back to Ernst Rabel, (/{Das Recht des Warenkaufs}/ Bd. I&II (Berlin, 1936-1958). Two volume study on sales law.) followed by the Cornell Project, (Cornell Project on Formation of Contracts 1968 - Rudolf Schlesinger, Formation of Contracts. A study of the Common Core of Legal Systems, 2 vols. (New York, London 1968)) and connected most directly to the UNIDROIT inspired /{Uniform Law for International Sales}/ (ULIS http://www.jus.uio.no/lm/unidroit.ulis.convention.1964/ at and ULF at http://www.jus.uio.no/lm/unidroit.ulf.convention.1964/ ), the main preparatory works behind the CISG (/{Uniform Law on the Formation of Contracts for the International Sale of Goods}/ (ULF) and the /{Convention relating to a Uniform Law on the International Sale of Goods}/ (ULIS) The Hague, 1964.). }~ and PICC twenty years.~{ /{UNIDROIT Principles of International Commercial Contracts}/ commonly referred to as the /{UNIDROIT Principles}/ and within this paper as PICC see at http://www.jus.uio.no/lm/unidroit.contract.principles.1994/ and http://www.jus.uio.no/lm/unidroit.international.commercial.contracts.principles.1994.commented/ \\ The first edition of the PICC were finalised in 1994, 23 years after their first conception, and 14 years after work started on them in earnest. }~ The CISG by UNCITRAL represents the greatest success for the unification of an area of substantive commercial contract law to date, being currently applied by 57 States,~{ As of February 2000. }~ estimated as representing close to seventy percent of world trade and including every major trading nation of the world apart from England and Japan. To labour the point, the USA most of the EU (along with Canada, Australia, Russia) and China, ahead of its entry to the WTO already share the same law in relation to the international sale of goods. "ScIL" however has additional hurdles to overcome. *(a)* In order to enter into force and become applicable, it must go through the lengthy process of ratification and accession by States. *(b)* Implementation is frequently with various reservations. *(c)* Even where widely used, there are usually as many or more States that are exceptions. Success, that is by no means guaranteed, takes time and for every uniform law that is a success, there are several failures. Institutionally offered lex ("IoL") comprehensive general contract principles or contract law restatements that create an entire "legal" environment for contracting, has the advantage of being instantly available, becoming effective by choice of the contracting parties at the stroke of a pen. "IoL" is also more easily developed subsequently, in light of experience and need. Amongst the reasons for their use is the reduction of transaction cost in their provision of a set of default rules, applicable transnationally, that satisfy risk management criteria, being (or becoming) known, tried and tested, and of predictable effect.~{ "[P]arties often want to close contracts quickly, rather than hold up the transaction to negotiate solutions for every problem that might arise." Honnold (1992) on p. 13. }~ The most resoundingly successful "IoL" example to date has been the ICC's /{Uniform Customs and Practices for Documentary Credits}/, which is subscribed to as the default rules for the letters of credit offered by the vast majority of banks in the vast majority of countries of the world. Furthermore uniform principles allow unification on matters that at the present stage of national and regional pluralism could not be achieved at a treaty level. There are however, things that only "ScIL" can "engineer", (for example that which relates to priorities and third party obligations). @@ -131,7 +124,7 @@ The major obstacle that remains to being confident of this as the great and free How to protect liberal democratic ideals and ensure international jurisprudential deliberation? Looking at judicial method, where court decisions are looked to for guidance, liberal democratic ideals and international jurisprudential deliberation are fostered by a judicial minimalist approach. -For those of us with a common law background, and others who pay special attention to cases as you are invited to by interpretation clauses, there is scope for discussion as to the most appropriate approach to be taken with regard to judicial decisions. US judge Cass Sunstein suggestion of judicial minimalism~{ Cass R. Sunstein, /{One Case at a Time - Judicial Minimalism on the Supreme Court}/ (1999) }~ which despite its being developed in a different context~{ His analysis is developed based largely on "hard" constitutional cases of the U.S. }~ is attractive in that it is suited to a liberal democracy in ensuring democratic jurisprudential deliberation. It maintains discussion, debate, and allows for adjustment as appropriate and the gradual development of a common understanding of issues. Much as one may admire farsighted and far-reaching decisions and expositions, there is less chance with the minimalist approach of the (dogmatic) imposition of particular values. Whilst information sharing offers the possibility of the percolation of good ideas.~{ D. Stauffer, /{Introduction to Percolation Theory}/ (London, 1985). Percolation represents the sudden dramatic expansion of a common idea or ideas thought he reaching of a critical level/mass in the rapid recognition of their power and the making of further interconnections. An epidemic like infection of ideas. Not quite the way we are used to the progression of ideas within a conservative tradition. }~ Much as we admire the integrity of Dworkin's Hercules,~{ Ronald Dworkin, /{Laws Empire}/ (Harvard, 1986); /{Hard Cases in Harvard Law Review}/ (1988). }~ that he can consistently deliver single solutions suitable across such disparate socio-economic cultures is questionable. In examining the situation his own "integrity" would likely give him pause and prevent him from dictating that he can.~{ Hercules was created for U.S. Federal Cases and the community represented by the U.S. }~ This position is maintained as a general principle across international commercial law, despite private (as opposed to public) international commercial law not being an area of particularly "hard" cases of principle, and; despite private international commercial law being an area in which over a long history it has been demonstrated that lawyers are able to talk a common language to make themselves and their concepts (which are not dissimilar) understood by each other.~{ In 1966, a time when there were greater differences in the legal systems of States comprising the world economy Clive Schmitthoff was able to comment that:
"22. The similarity of the law of international trade transcends the division of the world between countries of free enterprise and countries of centrally planned economy, and between the legal families of the civil law of Roman inspiration and the common law of English tradition. As a Polish scholar observed, "the law of external trade of the countries of planned economy does not differ in its fundamental principles from the law of external trade of other countries, such as e.g., Austria or Switzerland. Consequently, international trade law specialists of all countries have found without difficulty that they speak a 'common language'
23. The reason for this universal similarity of the law of international trade is that this branch of law is based on three fundamental propositions: first, that the parties are free, subject to limitations imposed by the national laws, to contract on whatever terms they are able to agree (principle of the autonomy of the parties' will); secondly, that once the parties have entered into a contract, that contract must be faithfully fulfilled (pacta sunt servanda) and only in very exceptional circumstances does the law excuse a party from performing his obligations, viz., if force majeure or frustration can be established; and, thirdly that arbitration is widely used in international trade for the settlement of disputes, and the awards of arbitration tribunals command far-reaching international recognition and are often capable of enforcement abroad."
/{Report of the Secretary-General of the United Nations, Progressive Development of the Law of International Trade}/ (1966). Report prepared for the UN by C. Schmitthoff. }~ +For those of us with a common law background, and others who pay special attention to cases as you are invited to by interpretation clauses, there is scope for discussion as to the most appropriate approach to be taken with regard to judicial decisions. US judge Cass Sunstein suggestion of judicial minimalism~{ Cass R. Sunstein, /{One Case at a Time - Judicial Minimalism on the Supreme Court}/ (1999) }~ which despite its being developed in a different context~{ His analysis is developed based largely on "hard" constitutional cases of the U.S. }~ is attractive in that it is suited to a liberal democracy in ensuring democratic jurisprudential deliberation. It maintains discussion, debate, and allows for adjustment as appropriate and the gradual development of a common understanding of issues. Much as one may admire farsighted and far-reaching decisions and expositions, there is less chance with the minimalist approach of the (dogmatic) imposition of particular values. Whilst information sharing offers the possibility of the percolation of good ideas.~{ D. Stauffer, /{Introduction to Percolation Theory}/ (London, 1985). Percolation represents the sudden dramatic expansion of a common idea or ideas thought he reaching of a critical level/mass in the rapid recognition of their power and the making of further interconnections. An epidemic like infection of ideas. Not quite the way we are used to the progression of ideas within a conservative tradition. }~ Much as we admire the integrity of Dworkin's Hercules,~{ Ronald Dworkin, /{Laws Empire}/ (Harvard, 1986); /{Hard Cases in Harvard Law Review}/ (1988). }~ that he can consistently deliver single solutions suitable across such disparate socio-economic cultures is questionable. In examining the situation his own "integrity" would likely give him pause and prevent him from dictating that he can.~{ Hercules was created for U.S. Federal Cases and the community represented by the U.S. }~ This position is maintained as a general principle across international commercial law, despite private (as opposed to public) international commercial law not being an area of particularly "hard" cases of principle, and; despite private international commercial law being an area in which over a long history it has been demonstrated that lawyers are able to talk a common language to make themselves and their concepts (which are not dissimilar) understood by each other.~{ In 1966, a time when there were greater differences in the legal systems of States comprising the world economy Clive Schmitthoff was able to comment that: \\ "22. The similarity of the law of international trade transcends the division of the world between countries of free enterprise and countries of centrally planned economy, and between the legal families of the civil law of Roman inspiration and the common law of English tradition. As a Polish scholar observed, "the law of external trade of the countries of planned economy does not differ in its fundamental principles from the law of external trade of other countries, such as e.g., Austria or Switzerland. Consequently, international trade law specialists of all countries have found without difficulty that they speak a 'common language' \\ 23. The reason for this universal similarity of the law of international trade is that this branch of law is based on three fundamental propositions: first, that the parties are free, subject to limitations imposed by the national laws, to contract on whatever terms they are able to agree (principle of the autonomy of the parties' will); secondly, that once the parties have entered into a contract, that contract must be faithfully fulfilled (pacta sunt servanda) and only in very exceptional circumstances does the law excuse a party from performing his obligations, viz., if force majeure or frustration can be established; and, thirdly that arbitration is widely used in international trade for the settlement of disputes, and the awards of arbitration tribunals command far-reaching international recognition and are often capable of enforcement abroad." \\ /{Report of the Secretary-General of the United Nations, Progressive Development of the Law of International Trade}/ (1966). Report prepared for the UN by C. Schmitthoff. }~ 2~ Non-binding interpretative councils and their co-ordinating guides can provide a focal point for the convergence of ideas - certainty, predictability, and efficiency diff --git a/data/v3/samples/content.cory_doctorow.sst b/data/v3/samples/content.cory_doctorow.sst index 88d90cf..dbf0040 100644 --- a/data/v3/samples/content.cory_doctorow.sst +++ b/data/v3/samples/content.cory_doctorow.sst @@ -10,35 +10,28 @@ :published: 2008-09 @rights: - :copyright: Copyright (C) Cory Doctorow, 2008. - :license: This entire work (with the exception of the introduction by John Perry Barlow) is copyright 2008 by Cory Doctorow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved.
The introduction is copyright 2008 by John Perry Barlow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved. + :copyright: Copyright (C) Cory Doctorow, 2008. + :license: This entire work (with the exception of the introduction by John Perry Barlow) is copyright 2008 by Cory Doctorow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved. \\ The introduction is copyright 2008 by John Perry Barlow and released under the terms of a Creative Commons US Attribution-NonCommercial-ShareAlike license (http://creativecommons.org/licenses/by-nc-sa/3.0/us/). Some Rights Reserved. @classify: - :subject: Selected Essays :topic_register: SiSU:markup sample:book;copyright;content;creative commons;intellectual property:content;book:subject:culture|copyright|society|content|social aspects of technology;culture;society;technology:social aspects + :subject: Selected Essays :oclc: 268676051 :isbn: 9781892391810 +@links: + { CONTENT }http://craphound.com/content/ + { @ Wikipedia }http://en.wikipedia.org/wiki/Cory_Doctorow + { @ Amazon.com }http://www.amazon.com/Content-Selected-Technology-Creativity-Copyright/dp/1892391813 + { @ Barnes & Noble }http://search.barnesandnoble.com/Content/Cory-Doctorow/e/9781892391810/?itm=1&USRI=content+cory+doctorow + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ + @make: :num_top: 1 :breaks: break=1 - :skin: skin_content :emphasis: italics - -@links: { CONTENT }http://craphound.com/content/ - { CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow - {@ Wikipedia }http://en.wikipedia.org/wiki/Cory_Doctorow - {@ Amazon.com}http://www.amazon.com/Content-Selected-Technology-Creativity-Copyright/dp/1892391813 - {@ Barnes & Noble}http://search.barnesandnoble.com/Content/Cory-Doctorow/e/9781892391810/?itm=1&USRI=content+cory+doctorow - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - { Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow - { Free Culture, Lawrence Lessig @ SiSU }http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - { The Wealth of Networks, Yochai Benkler @ SiSU }http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - { Viral Spiral, David Bollier@ SiSU }http://www.jus.uio.no/sisu/viral_spiral.david_bollier - { Democratizing Innovation, Eric von Hippel @ SiSU }http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - { Two Bits, Christopher Kelty @ SiSU }http://www.jus.uio.no/sisu/two_bits.christopher_kelty - { Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU }http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + :skin: skin_content :A~ @title @author diff --git a/data/v3/samples/democratizing_innovation.eric_von_hippel.sst b/data/v3/samples/democratizing_innovation.eric_von_hippel.sst index f47afc5..132d8bc 100644 --- a/data/v3/samples/democratizing_innovation.eric_von_hippel.sst +++ b/data/v3/samples/democratizing_innovation.eric_von_hippel.sst @@ -4,10 +4,21 @@ :language: US @creator: - :author: von Hipel, Eric + :author: von Hippel, Eric + +@date: + :published: 2005 + :created: 2005 + :issued: 2005 + :available: 2005 + :modified: 2005 + :valid: 2005 + +@rights: + :copyright: Copyright (C) 2005 Eric von Hippel. Exclusive rights to publish and sell this book in print form in English are licensed to The MIT Press. All other rights are reserved by the author. An electronic version of this book is available under a Creative Commons license. + :license: Creative Commons US Attribution-NonCommercial-NoDerivs license 2.0. http://creativecommons.org/licenses/by-nc-nd/2.0/legalcode Some Rights Reserved. You are free to copy, distribute, display and perform the work, under the following conditions: Attribution, you must give the original author credit; you may not use this work for commercial purposes; No Derivative Works, you may not alter, transform, or build-upon this work. For reuse or distribution you must make clear to others the license terms of this work. Any conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above. @classify: - :type: Book :topic_register: SiSU:markup sample:book;innovation;technological innovations:economic aspects;diffusion of innovations;democracy;open source software:innovation :isbn: 9780262720472 :oclc: 56880369 @@ -15,39 +26,20 @@ % HC79.T4H558 2005 % 338'.064-dc22 2004061060 -@rights: - :copyright: Copyright (C) 2005 Eric von Hippel. Exclusive rights to publish and sell this book in print form in English are licensed to The MIT Press. All other rights are reserved by the author. An electronic version of this book is available under a Creative Commons license. - :license: Creative Commons US Attribution-NonCommercial-NoDerivs license 2.0. http://creativecommons.org/licenses/by-nc-nd/2.0/legalcode Some Rights Reserved. You are free to copy, distribute, display and perform the work, under the following conditions: Attribution, you must give the original author credit; you may not use this work for commercial purposes; No Derivative Works, you may not alter, transform, or build-upon this work. For reuse or distribution you must make clear to others the license terms of this work. Any conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above. - -@date: - :published: 2005 - :created: 2005 - :issued: 2005 - :available: 2005 - :modified: 2005 - :valid: 2005 +@links: + { Democratizing Innovation }http://web.mit.edu/evhippel/www/democ1.htm + { Eric von Hippel }http://web.mit.edu/evhippel/www/ + { @ Wikipedia }http://en.wikipedia.org/wiki/Democratizing_Innovation + { Democratizing Innovation @ Amazon.com }http://www.amazon.com/Democratizing-Innovation-Eric-Von-Hippel/dp/0262720477 + { Democratizing Innovation @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=9780262720472 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :breaks: new=:B,C; break=1 :texpdf_font: Liberation Sans :skin: skin_di_von_hippel -@links: - {Democratizing Innovation}http://web.mit.edu/evhippel/www/democ1.htm - {Eric von Hippel}http://web.mit.edu/evhippel/www/ - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {@ Wikipedia}http://en.wikipedia.org/wiki/Democratizing_Innovation - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {Democratizing Innovation @ Amazon.com}http://www.amazon.com/Democratizing-Innovation-Eric-Von-Hippel/dp/0262720477 - {Democratizing Innovation @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=9780262720472 - :A~ @title @author 1~attribution Attribution~# diff --git a/data/v3/samples/down_and_out_in_the_magic_kingdom.cory_doctorow.sst b/data/v3/samples/down_and_out_in_the_magic_kingdom.cory_doctorow.sst index b9aa6a2..ad69f0b 100644 --- a/data/v3/samples/down_and_out_in_the_magic_kingdom.cory_doctorow.sst +++ b/data/v3/samples/down_and_out_in_the_magic_kingdom.cory_doctorow.sst @@ -2,55 +2,39 @@ @title: Down and Out in the Magic Kingdom -% http://www.craphound.com/down - @creator: :author: Doctorow, Cory -% doctorow@craphound.com +@date: + :published: 2003-01-09 + :modified: 2010-09-16 @rights: :copyright: Copyright © 2003 Cory Doctorow - :license: Creative Commons, Attribution-NonCommercial-ShareAlike 1.0. That means, you are free:
to Share - to copy, distribute and transmit the work;
to Remix - to adapt the work;
Under the following conditions:
Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work);
Noncommercial - You may not use this work for commercial purposes;
Share Alike — If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.
For any reuse or distribution, you must make clear to others the license terms of this work.
The best way to do this is with a link http://craphound.com/down
Any of the above conditions can be waived if you get my permission. More info here: http://creativecommons.org/licenses/by-nc-sa/1.0/ See the end of this document for the complete legalese.
RELICENSED from Attribution-NoDerivs-NonCommercial 1.0 http://creativecommons.org/licenses/by-nd-nc/1.0/ - -% Tor Books, January 2003 + :license: Creative Commons, Attribution-NonCommercial-ShareAlike 1.0. That means, you are free: \\ to Share - to copy, distribute and transmit the work; \\ to Remix - to adapt the work; \\ Under the following conditions: \\ Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work); \\ Noncommercial - You may not use this work for commercial purposes; \\ Share Alike — If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one. \\ For any reuse or distribution, you must make clear to others the license terms of this work. \\ The best way to do this is with a link http://craphound.com/down \\ Any of the above conditions can be waived if you get my permission. More info here: http://creativecommons.org/licenses/by-nc-sa/1.0/ See the end of this document for the complete legalese. \\ RELICENSED from Attribution-NoDerivs-NonCommercial 1.0 http://creativecommons.org/licenses/by-nd-nc/1.0/ @classify: - :subject: novel :topic_register: SiSU:markup sample:book;book:novel;fiction:counterculture|young adult|science fiction + :subject: novel :type: fiction :oclc: 50645482 :isbn: 0765304368 -% Realizing his boyhood dream of moving to the twentieth-century artistic creation of Disney World, Jules becomes incensed by a new group that would change the Hall of Presidents by replacing the audioanimatronics with brain interfaces. +@notes: + :description: Realizing his boyhood dream of moving to the twentieth-century artistic creation of Disney World, Jules becomes incensed by a new group that would change the Hall of Presidents by replacing the audioanimatronics with brain interfaces. -% :loc: #___# - -@date: - :published: 2003-01-09 - :modified: 2010-09-16 - -% :added_to_site: 20YY-MM-DD +@links: + { Down and Out in the Magic Kingdom home }http://craphound.com/down + { @ Wikipedia }http://en.wikipedia.org/wiki/Down_and_Out_in_the_Magic_Kingdom + { @ Amazon.com }http://www.amazon.com/Down-Magic-Kingdom-Cory-Doctorow/dp/076530953X + { @ Barnes & Noble }http://search.barnesandnoble.com/Down-and-Out-in-the-Magic-Kingdom/Cory-Doctorow/e/9780765309532 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :breaks: new=:C; break=1 :skin: skin_magic_kingdom -@links: { Down and Out in the Magic Kingdom home }http://craphound.com/down - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - {@ Wikipedia }http://en.wikipedia.org/wiki/Down_and_Out_in_the_Magic_Kingdom - {@ Amazon.com}http://www.amazon.com/Down-Magic-Kingdom-Cory-Doctorow/dp/076530953X - {@ Barnes & Noble}http://search.barnesandnoble.com/Down-and-Out-in-the-Magic-Kingdom/Cory-Doctorow/e/9780765309532 - {Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow - {CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - :A~ @title @author 1~blurbs Blurbs: diff --git a/data/v3/samples/for_the_win.cory_doctorow.sst b/data/v3/samples/for_the_win.cory_doctorow.sst index 4bc3f23..547e2ef 100644 --- a/data/v3/samples/for_the_win.cory_doctorow.sst +++ b/data/v3/samples/for_the_win.cory_doctorow.sst @@ -5,49 +5,36 @@ @creator: :author: Doctorow, Cory -% doctorow@craphound.com +@date: + :modified: 2010-09-16 @rights: - :copyright: Cory Doctorow - :license: Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. That means, you are free:
to Share -- to copy, distribute and transmit the work;
to Remix -- to adapt the work;
Under the following conditions:
* Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
* Noncommercial. You may not use this work for commercial purposes.
* Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.
For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link http://craphound.com/ftw
Any of the above conditions can be waived if you get my permission. More info here: http://creativecommons.org/licenses/by-nc-sa/3.0/ See the end of this document for the complete legalese. + :copyright: 2010 Cory Doctorow + :license: Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. That means, you are free: \\ to Share -- to copy, distribute and transmit the work; \\ to Remix -- to adapt the work; \\ Under the following conditions: \\ * Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). \\ * Noncommercial. You may not use this work for commercial purposes. \\ * Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one. \\ For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link http://craphound.com/ftw \\ Any of the above conditions can be waived if you get my permission. More info here: http://creativecommons.org/licenses/by-nc-sa/3.0/ See the end of this document for the complete legalese. @classify: - :subject: novel :topic_register: SiSU:markup sample:book;book:novel;fiction:counterculture|young adult|science fiction + :subject: novel :type: fiction :oclc: 468976621 :isbn: 9780765322166 -% A group of teens from around the world find themselves drawn into an online revolution arranged by a mysterious young woman known as Big Sister Nor, who hopes to challenge the status quo and change the world using her virtual connections. +@notes: + :description: A group of teens from around the world find themselves drawn into an online revolution arranged by a mysterious young woman known as Big Sister Nor, who hopes to challenge the status quo and change the world using her virtual connections. -% :loc: #___# - -@date: - :modified: 2010-09-16 - -% :published: 20YY-MM-DD -% :added_to_site: 20YY-MM-DD +@links: + { For the Win home }http://craphound.com/ftw + { @ Wikipedia }http://en.wikipedia.org/wiki/For_The_Win_(Cory_Doctorow_novel) + { @ Amazon.com }http://www.amazon.com/Win-Cory-Doctorow/dp/0765322161 + { @ Barnes & Noble }http://search.barnesandnoble.com/For-the-Win/Cory-Doctorow/e/9780765322166 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :num_top: 1 :breaks: new=:C; break=1 :skin: skin_for_the_win -@links: { Little Brother home }http://craphound.com/ftw - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow - {@ Wikipedia }http://en.wikipedia.org/wiki/For_The_Win_(Cory_Doctorow_novel) - {@ Amazon.com}http://www.amazon.com/Win-Cory-Doctorow/dp/0765322161 - {@ Barnes & Noble}http://search.barnesandnoble.com/For-the-Win/Cory-Doctorow/e/9780765322166 - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - {Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - :A~ @title @author 1~introduction- INTRODUCTION diff --git a/data/v3/samples/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams.sst b/data/v3/samples/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams.sst index 213c76e..090ba03 100644 --- a/data/v3/samples/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams.sst +++ b/data/v3/samples/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams.sst @@ -3,7 +3,11 @@ @title: Free as in Freedom :subtitle: Richard Stallman's Crusade for Free Software -@creator: Williams, Sam +@creator: + :author: Williams, Sam + +@date: + :published: 2002 @rights: :copyright: Copyright (C) Sam Williams 2002. @@ -14,30 +18,17 @@ :oclc: 49044520 :isbn: 9780596002879 -@date: - :published: 2002 - -@notes: March 2002 - @links: { Home and Source }http://faifzilla.org/ - {Free as in Freedom (on Richard Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {@ Wikipedia}http://en.wikipedia.org/wiki/Free_as_in_Freedom:_Richard_Stallman%27s_Crusade_for_Free_Software - {@ Amazon.com}http://www.amazon.com/gp/product/0596002874 - {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0596002874 - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + { @ Wikipedia }http://en.wikipedia.org/wiki/Free_as_in_Freedom:_Richard_Stallman%27s_Crusade_for_Free_Software + { @ Amazon.com }http://www.amazon.com/gp/product/0596002874 + { @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0596002874 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: - :skin: skin_rms :breaks: new=:A,:B,:C,1 + :skin: skin_rms :A~ @title @author @@ -232,7 +223,7 @@ Once inside the auditorium, a visitor finds the person who has forced this tempo % extended range for Microsoft -The subject of Stallman's speech is the history and future of the free software movement. The location is significant. Less than a month before, Microsoft senior vice president Craig Mundie appeared at the nearby NYU Stern School of Business, delivering a speech blasting the General Public License, or GPL, a legal device originally conceived by Stallman 16 years before. Built to counteract the growing wave of software secrecy overtaking the computer industry-a wave first noticed by Stallman during his 1980 troubles with the Xerox laser printer-the GPL has evolved into a central tool of the free software community. In simplest terms, the GPL locks software programs into a form of communal ownership-what today's legal scholars now call the "digital commons"-through the legal weight of copyright. Once locked, programs remain unremovable. Derivative versions must carry the same copyright protection-even derivative versions that bear only a small snippet of the original source code. For this reason, some within the software industry have taken to calling the GPL a "viral" license, because it spreads itself to every software program it touches.~{ Actually, the GPL's powers are not quite that potent. According to section 10 of the GNU General Public License, Version 2 (1991), the viral nature of the license depends heavily on the Free Software Foundation's willingness to view a program as a derivative work, not to mention the existing license the GPL would replace.
If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software that is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally.
"To compare something to a virus is very harsh," says Stallman. "A spider plant is a more accurate comparison; it goes to another place if you actively take a cutting."
For more information on the GNU General Public License, visit http://www.gnu.org/copyleft/gpl.html }~ +The subject of Stallman's speech is the history and future of the free software movement. The location is significant. Less than a month before, Microsoft senior vice president Craig Mundie appeared at the nearby NYU Stern School of Business, delivering a speech blasting the General Public License, or GPL, a legal device originally conceived by Stallman 16 years before. Built to counteract the growing wave of software secrecy overtaking the computer industry-a wave first noticed by Stallman during his 1980 troubles with the Xerox laser printer-the GPL has evolved into a central tool of the free software community. In simplest terms, the GPL locks software programs into a form of communal ownership-what today's legal scholars now call the "digital commons"-through the legal weight of copyright. Once locked, programs remain unremovable. Derivative versions must carry the same copyright protection-even derivative versions that bear only a small snippet of the original source code. For this reason, some within the software industry have taken to calling the GPL a "viral" license, because it spreads itself to every software program it touches.~{ Actually, the GPL's powers are not quite that potent. According to section 10 of the GNU General Public License, Version 2 (1991), the viral nature of the license depends heavily on the Free Software Foundation's willingness to view a program as a derivative work, not to mention the existing license the GPL would replace. \\ If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software that is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally. \\ "To compare something to a virus is very harsh," says Stallman. "A spider plant is a more accurate comparison; it goes to another place if you actively take a cutting." \\ For more information on the GNU General Public License, visit http://www.gnu.org/copyleft/gpl.html }~ ={Mundie, Craig+2;NYU Stern School of Business;Stern School of Business (NYU)} In an information economy increasingly dependent on software and increasingly beholden to software standards, the GPL has become the proverbial "big stick." Even companies that once laughed it off as software socialism have come around to recognize the benefits. Linux, the Unix-like kernel developed by Finnish college student Linus Torvalds in 1991, is licensed under the GPL, as are many of the world's most popular programming tools: GNU Emacs, the GNU Debugger, the GNU C Compiler, etc. Together, these tools form the components of a free software operating system developed, nurtured, and owned by the worldwide hacker community. Instead of viewing this community as a threat, high-tech companies like IBM, Hewlett Packard, and Sun Microsystems have come to rely upon it, selling software applications and services built to ride atop the ever-growing free software infrastructure. @@ -244,12 +235,12 @@ They've also come to rely upon it as a strategic weapon in the hacker community' 20 years is a long time in the software industry. Consider this: in 1980, when Richard Stallman was cursing the AI Lab's Xerox laser printer, Microsoft, the company modern hackers view as the most powerful force in the worldwide software industry, was still a privately held startup. IBM, the company hackers used to regard as the most powerful force in the worldwide software industry, had yet to to introduce its first personal computer, thereby igniting the current low-cost PC market. Many of the technologies we now take for granted-the World Wide Web, satellite television, 32-bit video-game consoles-didn't even exist. The same goes for many of the companies that now fill the upper echelons of the corporate establishment, companies like AOL, Sun Microsystems, Amazon.com, Compaq, and Dell. The list goes on and on. ={Amazon.com;AOL (America OnLine);Compaq computers;Dell computers;PCs (personal computers);personal computers (PCs)} -The fact that the high-technology marketplace has come so far in such little time is fuel for both sides of the GPL debate. GPL-proponents point to the short lifespan of most computer hardware platforms. Facing the risk of buying an obsolete product, consumers tend to flock to companies with the best long-term survival. As a result, the software marketplace has become a winner-take-all arena.~{ See Shubha Ghosh, "Revealing the Microsoft Windows Source Code," Gigalaw.com (January, 2000).
http://www.gigalaw.com/articles/ghosh-2000-01-p1.html }~ The current, privately owned software environment, GPL-proponents say, leads to monopoly abuse and stagnation. Strong companies suck all the oxygen out of the marketplace for rival competitors and innovative startups. +The fact that the high-technology marketplace has come so far in such little time is fuel for both sides of the GPL debate. GPL-proponents point to the short lifespan of most computer hardware platforms. Facing the risk of buying an obsolete product, consumers tend to flock to companies with the best long-term survival. As a result, the software marketplace has become a winner-take-all arena.~{ See Shubha Ghosh, "Revealing the Microsoft Windows Source Code," Gigalaw.com (January, 2000). \\ http://www.gigalaw.com/articles/ghosh-2000-01-p1.html }~ The current, privately owned software environment, GPL-proponents say, leads to monopoly abuse and stagnation. Strong companies suck all the oxygen out of the marketplace for rival competitors and innovative startups. -GPL-opponents argue just the opposite. Selling software is just as risky, if not more risky, than buying software, they say. Without the legal guarantees provided by private software licenses, not to mention the economic prospects of a privately owned "killer app" (i.e., a breakthrough technology that launches an entirely new market),~{ Killer apps don't have to be proprietary. Witness, of course, the legendary Mosaic browser, a program whose copyright permits noncommercial derivatives with certain restrictions. Still, I think the reader gets the point: the software marketplace is like the lottery. The bigger the potential payoff, the more people want to participate. For a good summary of the killer-app phenomenon, see Philip Ben-David, "Whatever Happened to the `Killer App'?" e-Commerce News (December 7, 2000).
http://www.ecommercetimes.com/perl/story/5893.html }~ companies lose the incentive to participate. Once again, the market stagnates and innovation declines. As Mundie himself noted in his May 3 address on the same campus, the GPL's "viral" nature "poses a threat" to any company that relies on the uniqueness of its software as a competitive asset. Added Mundie: +GPL-opponents argue just the opposite. Selling software is just as risky, if not more risky, than buying software, they say. Without the legal guarantees provided by private software licenses, not to mention the economic prospects of a privately owned "killer app" (i.e., a breakthrough technology that launches an entirely new market),~{ Killer apps don't have to be proprietary. Witness, of course, the legendary Mosaic browser, a program whose copyright permits noncommercial derivatives with certain restrictions. Still, I think the reader gets the point: the software marketplace is like the lottery. The bigger the potential payoff, the more people want to participate. For a good summary of the killer-app phenomenon, see Philip Ben-David, "Whatever Happened to the `Killer App'?" e-Commerce News (December 7, 2000). \\ http://www.ecommercetimes.com/perl/story/5893.html }~ companies lose the incentive to participate. Once again, the market stagnates and innovation declines. As Mundie himself noted in his May 3 address on the same campus, the GPL's "viral" nature "poses a threat" to any company that relies on the uniqueness of its software as a competitive asset. Added Mundie: ={Mundie, Craig+2} -_1 It also fundamentally undermines the independent commercial software sector because it effectively makes it impossible to distribute software on a basis where recipients pay for the product rather than just the cost of distribution.~{ See Craig Mundie, "The Commercial Software Model," senior vice president, Microsoft Corp. Excerpted from an online transcript of Mundie's May 3, 2001, speech to the New York University Stern School of Business.
http://www.microsoft.com/presspass/exec/craig/05-03sharedsource.asp }~ +_1 It also fundamentally undermines the independent commercial software sector because it effectively makes it impossible to distribute software on a basis where recipients pay for the product rather than just the cost of distribution.~{ See Craig Mundie, "The Commercial Software Model," senior vice president, Microsoft Corp. Excerpted from an online transcript of Mundie's May 3, 2001, speech to the New York University Stern School of Business. \\ http://www.microsoft.com/presspass/exec/craig/05-03sharedsource.asp }~ The mutual success of GNU/Linux, the amalgamated operating system built around the GPL-protected Linux kernel, and Windows over the last 10 years reveals the wisdom of both perspectives. Nevertheless, the battle for momentum is an important one in the software industry. Even powerful vendors such as Microsoft rely on the support of third-party software developers whose tools, programs, and computer games make an underlying software platform such as Windows more attractive to the mainstream consumer. Citing the rapid evolution of the technology marketplace over the last 20 years, not to mention his own company's admirable track record during that period, Mundie advised listeners to not get too carried away by the free software movement's recent momentum: ={GNU Project:Linux and, mutual success of;Linux:GNU Project and;third-party software developers supporting Microsoft} @@ -308,7 +299,7 @@ Richard Matthew Stallman's rise from frustrated academic to political leader ove Most importantly, it speaks to the changing nature of political power in a world increasingly beholden to computer technology and the software programs that power that technology. -Maybe that's why, even at a time when most high-technology stars are on the wane, Stallman's star has grown. Since launching the GNU Project in 1984,~{ The acronym GNU stands for "GNU's not Unix." In another portion of the May 29, 2001, NYU speech, Stallman summed up the acronym's origin:
_1 We hackers always look for a funny or naughty name for a program, because naming a program is half the fun of writing the program. We also had a tradition of recursive acronyms, to say that the program that you're writing is similar to some existing program . . . I looked for a recursive acronym for Something Is Not UNIX. And I tried all 26 letters and discovered that none of them was a word. I decided to make it a contraction. That way I could have a three-letter acronym, for Something's Not UNIX. And I tried letters, and I came across the word "GNU." That was it.
_1 Although a fan of puns, Stallman recommends that software users pronounce the "g" at the beginning of the acronym (i.e., "gah-new"). Not only does this avoid confusion with the word "gnu," the name of the African antelope, Connochaetes gnou, it also avoids confusion with the adjective "new." "We've been working on it for 17 years now, so it is not exactly new any more," Stallman says.
Source: author notes and online transcript of "Free Software: Freedom and Cooperation," Richard Stallman's May 29, 2001, speech at New York University.
http://www.gnu.org/events/rms-nyu-2001-transcript.txt }~ Stallman has been at turns ignored, satirized, vilified, and attacked-both from within and without the free software movement. Through it all, the GNU Project has managed to meet its milestones, albeit with a few notorious delays, and stay relevant in a software marketplace several orders of magnitude more complex than the one it entered 18 years ago. So too has the free software ideology, an ideology meticulously groomed by Stallman himself. +Maybe that's why, even at a time when most high-technology stars are on the wane, Stallman's star has grown. Since launching the GNU Project in 1984,~{ The acronym GNU stands for "GNU's not Unix." In another portion of the May 29, 2001, NYU speech, Stallman summed up the acronym's origin: \\ _1 We hackers always look for a funny or naughty name for a program, because naming a program is half the fun of writing the program. We also had a tradition of recursive acronyms, to say that the program that you're writing is similar to some existing program . . . I looked for a recursive acronym for Something Is Not UNIX. And I tried all 26 letters and discovered that none of them was a word. I decided to make it a contraction. That way I could have a three-letter acronym, for Something's Not UNIX. And I tried letters, and I came across the word "GNU." That was it. \\ _1 Although a fan of puns, Stallman recommends that software users pronounce the "g" at the beginning of the acronym (i.e., "gah-new"). Not only does this avoid confusion with the word "gnu," the name of the African antelope, Connochaetes gnou, it also avoids confusion with the adjective "new." "We've been working on it for 17 years now, so it is not exactly new any more," Stallman says. \\ Source: author notes and online transcript of "Free Software: Freedom and Cooperation," Richard Stallman's May 29, 2001, speech at New York University. \\ http://www.gnu.org/events/rms-nyu-2001-transcript.txt }~ Stallman has been at turns ignored, satirized, vilified, and attacked-both from within and without the free software movement. Through it all, the GNU Project has managed to meet its milestones, albeit with a few notorious delays, and stay relevant in a software marketplace several orders of magnitude more complex than the one it entered 18 years ago. So too has the free software ideology, an ideology meticulously groomed by Stallman himself. To understand the reasons behind this currency, it helps to examine Richard Stallman both in his own words and in the words of the people who have collaborated and battled with him along the way. The Richard Stallman character sketch is not a complicated one. If any person exemplifies the old adage "what you see is what you get," it's Stallman. @@ -348,7 +339,7 @@ Thirty years after the fact, Lippman punctuates the memory with a laugh. "To tel Seated at the dining-room table of her second Manhattan apartment-the same spacious three-bedroom complex she and her son moved to following her 1967 marriage to Maurice Lippman, now deceased-Alice Lippman exudes a Jewish mother's mixture of pride and bemusement when recalling her son's early years. The nearby dining-room credenza offers an eight-by-ten photo of Stallman glowering in full beard and doctoral robes. The image dwarfs accompanying photos of Lippman's nieces and nephews, but before a visitor can make too much of it, Lippman makes sure to balance its prominent placement with an ironic wisecrack. ={Lippman, Maurice} -"Richard insisted I have it after he received his honorary doctorate at the University of Glasgow," says Lippman. "He said to me, `Guess what, mom? It's the first graduation I ever attended.'"~{ See Michael Gross, "Richard Stallman: High School Misfit, Symbol of Free Software, MacArthur-certified Genius" (1999). This interview is one of the most candid Stallman interviews on the record. I recommend it highly.
http://www.mgross.com/interviews/stallman1.html }~ +"Richard insisted I have it after he received his honorary doctorate at the University of Glasgow," says Lippman. "He said to me, `Guess what, mom? It's the first graduation I ever attended.'"~{ See Michael Gross, "Richard Stallman: High School Misfit, Symbol of Free Software, MacArthur-certified Genius" (1999). This interview is one of the most candid Stallman interviews on the record. I recommend it highly. \\ http://www.mgross.com/interviews/stallman1.html }~ ={University of Glasgow} Such comments reflect the sense of humor that comes with raising a child prodigy. Make no mistake, for every story Lippman hears and reads about her son's stubbornness and unusual behavior, she can deliver at least a dozen in return. @@ -391,10 +382,10 @@ Seth Breidbart, a fellow Columbia Science Honors Program alumnus, offers bolster "It's hard to describe," Breidbart says. "It wasn't like he was unapproachable. He was just very intense. [He was] very knowledgeable but also very hardheaded in some ways." -Such descriptions give rise to speculation: are judgment-laden adjectives like "intense" and "hardheaded" simply a way to describe traits that today might be categorized under juvenile behavioral disorder? A December, 2001, /{Wired}/ magazine article titled "The Geek Syndrome" paints the portrait of several scientifically gifted children diagnosed with high-functioning autism or Asperger Syndrome. In many ways, the parental recollections recorded in the Wired article are eerily similar to the ones offered by Lippman. Even Stallman has indulged in psychiatric revisionism from time to time. During a 2000 profile for the /{Toronto Star}/, Stallman described himself to an interviewer as "borderline autistic,"~{ See Judy Steed, /{Toronto Star}/, BUSINESS, (October 9, 2000): C03.
His vision of free software and social cooperation stands in stark contrast to the isolated nature of his private life. A Glenn Gould-like eccentric, the Canadian pianist was similarly brilliant, articulate, and lonely. Stallman considers himself afflicted, to some degree, by autism: a condition that, he says, makes it difficult for him to interact with people. }~ a description that goes a long way toward explaining a lifelong tendency toward social and emotional isolation and the equally lifelong effort to overcome it. +Such descriptions give rise to speculation: are judgment-laden adjectives like "intense" and "hardheaded" simply a way to describe traits that today might be categorized under juvenile behavioral disorder? A December, 2001, /{Wired}/ magazine article titled "The Geek Syndrome" paints the portrait of several scientifically gifted children diagnosed with high-functioning autism or Asperger Syndrome. In many ways, the parental recollections recorded in the Wired article are eerily similar to the ones offered by Lippman. Even Stallman has indulged in psychiatric revisionism from time to time. During a 2000 profile for the /{Toronto Star}/, Stallman described himself to an interviewer as "borderline autistic,"~{ See Judy Steed, /{Toronto Star}/, BUSINESS, (October 9, 2000): C03. \\ His vision of free software and social cooperation stands in stark contrast to the isolated nature of his private life. A Glenn Gould-like eccentric, the Canadian pianist was similarly brilliant, articulate, and lonely. Stallman considers himself afflicted, to some degree, by autism: a condition that, he says, makes it difficult for him to interact with people. }~ a description that goes a long way toward explaining a lifelong tendency toward social and emotional isolation and the equally lifelong effort to overcome it. ={Asperger Syndrome+1;autism+5;Geek Syndrome, The (Silberman)+1;Wired magazine;Toronto Star;Silberman, Steve+1;Stallman, Richard M.:behavioral disorders+1} -Such speculation benefits from the fast and loose nature of most so-called "behavioral disorders" nowadays, of course. As Steve Silberman, author of "The Geek Syndrome," notes, American psychiatrists have only recently come to accept Asperger Syndrome as a valid umbrella term covering a wide set of behavioral traits. The traits range from poor motor skills and poor socialization to high intelligence and an almost obsessive affinity for numbers, computers, and ordered systems.~{ See Steve Silberman, "The Geek Syndrome," Wired (December, 2001).
http://www.wired.com/wired/archive/9.12/aspergers_pr.html }~ Reflecting on the broad nature of this umbrella, Stallman says its possible that, if born 40 years later, he might have merited just such a diagnosis. Then again, so would many of his computer-world colleagues. +Such speculation benefits from the fast and loose nature of most so-called "behavioral disorders" nowadays, of course. As Steve Silberman, author of "The Geek Syndrome," notes, American psychiatrists have only recently come to accept Asperger Syndrome as a valid umbrella term covering a wide set of behavioral traits. The traits range from poor motor skills and poor socialization to high intelligence and an almost obsessive affinity for numbers, computers, and ordered systems.~{ See Steve Silberman, "The Geek Syndrome," Wired (December, 2001). \\ http://www.wired.com/wired/archive/9.12/aspergers_pr.html }~ Reflecting on the broad nature of this umbrella, Stallman says its possible that, if born 40 years later, he might have merited just such a diagnosis. Then again, so would many of his computer-world colleagues. ={Stallman, Richard M.:childhood, behavioral disorders} "It's possible I could have had something like that," he says. "On the other hand, one of the aspects of that syndrome is difficulty following rhythms. I can dance. In fact, I love following the most complicated rhythms. It's not clear cut enough to know." @@ -598,7 +589,7 @@ Looking back, Stallman sees nothing unusual in the AI Lab's willingness to accep To get a taste of "bureaucratic and stuffy," Stallman need only visit the computer labs at Harvard. There, access to the terminals was doled out according to academic rank. As an undergrad, Stallman usually had to sign up or wait until midnight, about the time most professors and grad students finished their daily work assignments. The waiting wasn't difficult, but it was frustrating. Waiting for a public terminal, knowing all the while that a half dozen equally usable machines were sitting idle inside professors' locked offices, seemed the height of illogic. Although Stallman paid the occasional visit to the Harvard computer labs, he preferred the more egalitarian policies of the AI Lab. "It was a breath of fresh air," he says. "At the AI Lab, people seemed more concerned about work than status." ={Harvard University:computer labs} -Stallman quickly learned that the AI Lab's first-come, first-served policy owed much to the efforts of a vigilant few. Many were holdovers from the days of Project MAC, the Department of Defense-funded research program that had given birth to the first time-share operating systems. A few were already legends in the computing world. There was Richard Greenblatt, the lab's in-house Lisp expert and author of MacHack, the computer chess program that had once humbled A.I. critic Hubert Dreyfus. There was Gerald Sussman, original author of the robotic block-stacking program HACKER. And there was Bill Gosper, the in-house math whiz already in the midst of an 18-month hacking bender triggered by the philosophical implications of the computer game LIFE.~{ See Steven Levy, Hackers (Penguin USA [paperback], 1984): 144.
Levy devotes about five pages to describing Gosper's fascination with LIFE, a math-based software game first created by British mathematician John Conway. I heartily recommend this book as a supplement, perhaps even a prerequisite, to this one. }~ +Stallman quickly learned that the AI Lab's first-come, first-served policy owed much to the efforts of a vigilant few. Many were holdovers from the days of Project MAC, the Department of Defense-funded research program that had given birth to the first time-share operating systems. A few were already legends in the computing world. There was Richard Greenblatt, the lab's in-house Lisp expert and author of MacHack, the computer chess program that had once humbled A.I. critic Hubert Dreyfus. There was Gerald Sussman, original author of the robotic block-stacking program HACKER. And there was Bill Gosper, the in-house math whiz already in the midst of an 18-month hacking bender triggered by the philosophical implications of the computer game LIFE.~{ See Steven Levy, Hackers (Penguin USA [paperback], 1984): 144. \\ Levy devotes about five pages to describing Gosper's fascination with LIFE, a math-based software game first created by British mathematician John Conway. I heartily recommend this book as a supplement, perhaps even a prerequisite, to this one. }~ ={Dreyfus, Hubert;Gosper, Bill;Greenblat, Richard;LIFE mathematical game;LISP programming language;MacHack;Project MAC;Sussman, Gerald+2} Members of the tight-knit group called themselves "hackers." Over time, they extended the "hacker" description to Stallman as well. In the process of doing so, they inculcated Stallman in the ethical traditions of the "hacker ethic ." To be a hacker meant more than just writing programs, Stallman learned. It meant writing the best possible programs. It meant sitting at a terminal for 36 hours straight if that's what it took to write the best possible programs. Most importantly, it meant having access to the best possible machines and the most useful information at all times. Hackers spoke openly about changing the world through software, and Stallman learned the instinctual hacker disdain for any obstacle that prevented a hacker from fulfilling this noble cause. Chief among these obstacles were poor software, academic bureaucracy, and selfish behavior. @@ -624,7 +615,7 @@ Using this feature, Stallman was able to watch how programs written by hackers p By the end of 1970, hacking at the AI Lab had become a regular part of Stallman's weekly schedule. From Monday to Thursday, Stallman devoted his waking hours to his Harvard classes. As soon as Friday afternoon arrived, however, he was on the T, heading down to MIT for the weekend. Stallman usually timed his arrival to coincide with the ritual food run. Joining five or six other hackers in their nightly quest for Chinese food, he would jump inside a beat-up car and head across the Harvard Bridge into nearby Boston. For the next two hours, he and his hacker colleagues would discuss everything from ITS to the internal logic of the Chinese language and pictograph system. Following dinner, the group would return to MIT and hack code until dawn. -For the geeky outcast who rarely associated with his high-school peers, it was a heady experience, suddenly hanging out with people who shared the same predilection for computers, science fiction, and Chinese food. "I remember many sunrises seen from a car coming back from Chinatown," Stallman would recall nostalgically, 15 years after the fact in a speech at the Swedish Royal Technical Institute. "It was actually a very beautiful thing to see a sunrise, 'cause that's such a calm time of day. It's a wonderful time of day to get ready to go to bed. It's so nice to walk home with the light just brightening and the birds starting to chirp; you can get a real feeling of gentle satisfaction, of tranquility about the work that you have done that night."~{ See Richard Stallman, "RMS lecture at KTH (Sweden)," (October 30, 1986).
http://www.gnu.org/philosophy/stallman-kth.html }~ +For the geeky outcast who rarely associated with his high-school peers, it was a heady experience, suddenly hanging out with people who shared the same predilection for computers, science fiction, and Chinese food. "I remember many sunrises seen from a car coming back from Chinatown," Stallman would recall nostalgically, 15 years after the fact in a speech at the Swedish Royal Technical Institute. "It was actually a very beautiful thing to see a sunrise, 'cause that's such a calm time of day. It's a wonderful time of day to get ready to go to bed. It's so nice to walk home with the light just brightening and the birds starting to chirp; you can get a real feeling of gentle satisfaction, of tranquility about the work that you have done that night."~{ See Richard Stallman, "RMS lecture at KTH (Sweden)," (October 30, 1986). \\ http://www.gnu.org/philosophy/stallman-kth.html }~ ={Swedish Royal Technical Institute} The more Stallman hung out with the hackers, the more he adopted the hacker worldview. Already committed to the notion of personal liberty, Stallman began to infuse his actions with a sense of communal responsibility. When others violated the communal code, Stallman was quick to speak out. Within a year of his first visit, Stallman was the one breaking into locked offices, trying to recover the sequestered terminals that belonged to the lab community as a whole. In true hacker fashion, Stallman also sought to make his own personal contribution to the art of lock hacking. One of the most artful door-opening tricks, commonly attributed to Greenblatt, involved bending a stiff wire into a cane and attaching a loop of tape to the long end. Sliding the wire under the door, a hacker could twist and rotate the wire so that the long end touched the door knob. Provided the adhesive on the tape held, a hacker could open the doorknob with a few sharp twists. @@ -694,7 +685,7 @@ Ask anyone who's spent more than a minute in Richard Stallman's presence, and yo To call the Stallman gaze intense is an understatement. Stallman's eyes don't just look at you; they look through you. Even when your own eyes momentarily shift away out of simple primate politeness, Stallman's eyes remain locked-in, sizzling away at the side of your head like twin photon beams. -Maybe that's why most writers, when describing Stallman, tend to go for the religious angle. In a 1998 Salon.com article titled "The Saint of Free Software," Andrew Leonard describes Stallman's green eyes as "radiating the power of an Old Testament prophet."~{ See Andrew Leonard, "The Saint of Free Software," Salon.com (August 1998).
http://www.salon.com/21st/feature/1998/08/cov_31feature.html }~ A 1999 /{Wired}/ magazine article describes the Stallman beard as "Rasputin-like,"~{ See Leander Kahney, "Linux's Forgotten Man," Wired News (March 5, 1999).
http://www.wired.com/news/print/0,1294,18291,00.html }~ while a /{London Guardian}/ profile describes the Stallman smile as the smile of "a disciple seeing Jesus."~{ See "Programmer on moral high ground; Free software is a moral issue for Richard Stallman believes in freedom and free software." London Guardian (November 6, 1999).
These are just a small sampling of the religious comparisons. To date, the most extreme comparison has to go to Linus Torvalds, who, in his autobiography-see Linus Torvalds and David Diamond, Just For Fun: The Story of an Accidentaly Revolutionary (HarperCollins Publishers, Inc., 2001): 58-writes "Richard Stallman is the God of Free Software."
Honorable mention goes to Larry Lessig, who, in a footnote description of Stallman in his book-see Larry Lessig, The Future of Ideas (Random House, 2001): 270-likens Stallman to Moses:
_1 ... as with Moses, it was another leader, Linus Torvalds, who finally carried the movement into the promised land by facilitating the development of the final part of the OS puzzle. Like Moses, too, Stallman is both respected and reviled by allies within the movement. He is [an] unforgiving, and hence for many inspiring, leader of a critically important aspect of modern culture. I have deep respect for the principle and commitment of this extraordinary individual, though I also have great respect for those who are courageous enough to question his thinking and then sustain his wrath.
In a final interview with Stallman, I asked him his thoughts about the religious comparisons. "Some people do compare me with an Old Testament prophent, and the reason is Old Testament prophets said certain social practices were wrong. They wouldn't compromise on moral issues. They couldn't be bought off, and they were usually treated with contempt." }~ +Maybe that's why most writers, when describing Stallman, tend to go for the religious angle. In a 1998 Salon.com article titled "The Saint of Free Software," Andrew Leonard describes Stallman's green eyes as "radiating the power of an Old Testament prophet."~{ See Andrew Leonard, "The Saint of Free Software," Salon.com (August 1998). \\ http://www.salon.com/21st/feature/1998/08/cov_31feature.html }~ A 1999 /{Wired}/ magazine article describes the Stallman beard as "Rasputin-like,"~{ See Leander Kahney, "Linux's Forgotten Man," Wired News (March 5, 1999). \\ http://www.wired.com/news/print/0,1294,18291,00.html }~ while a /{London Guardian}/ profile describes the Stallman smile as the smile of "a disciple seeing Jesus."~{ See "Programmer on moral high ground; Free software is a moral issue for Richard Stallman believes in freedom and free software." London Guardian (November 6, 1999). \\ These are just a small sampling of the religious comparisons. To date, the most extreme comparison has to go to Linus Torvalds, who, in his autobiography-see Linus Torvalds and David Diamond, Just For Fun: The Story of an Accidentaly Revolutionary (HarperCollins Publishers, Inc., 2001): 58-writes "Richard Stallman is the God of Free Software." \\ Honorable mention goes to Larry Lessig, who, in a footnote description of Stallman in his book-see Larry Lessig, The Future of Ideas (Random House, 2001): 270-likens Stallman to Moses: \\ _1 ... as with Moses, it was another leader, Linus Torvalds, who finally carried the movement into the promised land by facilitating the development of the final part of the OS puzzle. Like Moses, too, Stallman is both respected and reviled by allies within the movement. He is [an] unforgiving, and hence for many inspiring, leader of a critically important aspect of modern culture. I have deep respect for the principle and commitment of this extraordinary individual, though I also have great respect for those who are courageous enough to question his thinking and then sustain his wrath. \\ In a final interview with Stallman, I asked him his thoughts about the religious comparisons. "Some people do compare me with an Old Testament prophent, and the reason is Old Testament prophets said certain social practices were wrong. They wouldn't compromise on moral issues. They couldn't be bought off, and they were usually treated with contempt." }~ ={Wired magazine;Leonard, Andrew;London Guardian;Salon.com} Such analogies serve a purpose, but they ultimately fall short. That's because they fail to take into account the vulnerable side of the Stallman persona. Watch the Stallman gaze for an extended period of time, and you will begin to notice a subtle change. What appears at first to be an attempt to intimidate or hypnotize reveals itself upon second and third viewing as a frustrated attempt to build and maintain contact. If, as Stallman himself has suspected from time to time, his personality is the product of autism or Asperger Syndrome, his eyes certainly confirm the diagnosis. Even at their most high-beam level of intensity, they have a tendency to grow cloudy and distant, like the eyes of a wounded animal preparing to give up the ghost. @@ -756,7 +747,7 @@ Stallman's body bears witness to the tragedy. Lack of exercise has left Stallman The walk is further slowed by Stallman's willingness to stop and smell the roses, literally. Spotting a particularly beautiful blossom, he tickles the innermost petals with his prodigious nose, takes a deep sniff and steps back with a contented sigh. -"Mmm, rhinophytophilia,"~{ At the time, I thought Stallman was referring to the flower's scientific name. Months later, I would learn that rhinophytophilia was in fact a humorous reference to the activity, i.e., Stallman sticking his nose into a flower and enjoying the moment. For another humorous Stallman flower incident, visit:
http://www.stallman.org/texas.html }~ he says, rubbing his back. +"Mmm, rhinophytophilia,"~{ At the time, I thought Stallman was referring to the flower's scientific name. Months later, I would learn that rhinophytophilia was in fact a humorous reference to the activity, i.e., Stallman sticking his nose into a flower and enjoying the moment. For another humorous Stallman flower incident, visit: \\ http://www.stallman.org/texas.html }~ he says, rubbing his back. The drive to the restaurant takes less than three minutes. Upon recommendation from Tim Ney, former executive director of the Free Software Foundation, I have let Stallman choose the restaurant. While some reporters zero in on Stallman's monk-like lifestyle, the truth is, Stallman is a committed epicure when it comes to food. One of the fringe benefits of being a traveling missionary for the free software cause is the ability to sample delicious food from around the world. "Visit almost any major city in the world, and chances are Richard knows the best restaurant in town," says Ney. "Richard also takes great pride in knowing what's on the menu and ordering for the entire table." ={Ney, Tim} @@ -781,7 +772,7 @@ The conversation shifts to Napster, the San Mateo, California software company, Although based on proprietary software, the Napster system draws inspiration from the long-held Stallman contention that once a work enters the digital realm-in other words, once making a copy is less a matter of duplicating sounds or duplicating atoms and more a matter of duplicating information-the natural human impulse to share a work becomes harder to restrict. Rather than impose additional restrictions, Napster execs have decided to take advantage of the impulse. Giving music listeners a central place to trade music files, the company has gambled on its ability to steer the resulting user traffic toward other commercial opportunities. -The sudden success of the Napster model has put the fear in traditional record companies, with good reason. Just days before my Palo Alto meeting with Stallman, U.S. District Court Judge Marilyn Patel granted a request filed by the Recording Industry Association of America for an injunction against the file-sharing service. The injunction was subsequently suspended by the U.S. Ninth District Court of Appeals, but by early 2001, the Court of Appeals, too, would find the San Mateo-based company in breach of copyright law,~{ See Cecily Barnes and Scott Ard, "Court Grants Stay of Napster Injunction," News.com (July 28, 2000).
http://news.cnet.com/news/0-1005-200-2376465.html }~ a decision RIAA spokesperson Hillary Rosen would later proclaim proclaim a "clear victory for the creative content community and the legitimate online marketplace."~{ See "A Clear Victory for Recording Industry in Napster Case," RIAA press release (February 12, 2001).
http://www.riaa.com/PR_story.cfm?id=372 }~ +The sudden success of the Napster model has put the fear in traditional record companies, with good reason. Just days before my Palo Alto meeting with Stallman, U.S. District Court Judge Marilyn Patel granted a request filed by the Recording Industry Association of America for an injunction against the file-sharing service. The injunction was subsequently suspended by the U.S. Ninth District Court of Appeals, but by early 2001, the Court of Appeals, too, would find the San Mateo-based company in breach of copyright law,~{ See Cecily Barnes and Scott Ard, "Court Grants Stay of Napster Injunction," News.com (July 28, 2000). \\ http://news.cnet.com/news/0-1005-200-2376465.html }~ a decision RIAA spokesperson Hillary Rosen would later proclaim proclaim a "clear victory for the creative content community and the legitimate online marketplace."~{ See "A Clear Victory for Recording Industry in Napster Case," RIAA press release (February 12, 2001). \\ http://www.riaa.com/PR_story.cfm?id=372 }~ For hackers such as Stallman, the Napster business model is scary in different ways. The company's eagerness to appropriate time-worn hacker principles such as file sharing and communal information ownership, while at the same time selling a service based on proprietary software, sends a distressing mixed message. As a person who already has a hard enough time getting his own carefully articulated message into the media stream, Stallman is understandably reticent when it comes to speaking out about the company. Still, Stallman does admit to learning a thing or two from the social side of the Napster phenomenon. @@ -804,7 +795,7 @@ I turn to look, catching a glimpse of a woman's back. The woman is young, somewh "Oh, no," he says. "They're gone. And to think, I'll probably never even get to see her again." -After a brief sigh, Stallman recovers. The moment gives me a chance to discuss Stallman's reputation vis-ý-vis the fairer sex. The reputation is a bit contradictory at times. A number of hackers report Stallman's predilection for greeting females with a kiss on the back of the hand.~{ See Mae Ling Mak, "Mae Ling's Story" (December 17, 1998).
http://www.crackmonkey.org/pipermail/crackmonkey/1998q4/003006.htm
So far, Mak is the only person I've found willing to speak on the record in regard to this practice, although I've heard this from a few other female sources. Mak, despite expressing initial revulsion at it, later managed to put aside her misgivings and dance with Stallman at a 1999 LinuxWorld show.
http://www.linux.com/interact/potd.phtml?potd_id=44 }~ A May 26, 2000 Salon.com article, meanwhile, portrays Stallman as a bit of a hacker lothario. Documenting the free software-free love connection, reporter Annalee Newitz presents Stallman as rejecting traditional family values, telling her, "I believe in love, but not monogamy."~{ See Annalee Newitz, "If Code is Free Why Not Me?" Salon.com (May 26, 2000).
http://www.salon.com/tech/feature/2000/05/26/free_love/print.html }~ +After a brief sigh, Stallman recovers. The moment gives me a chance to discuss Stallman's reputation vis-ý-vis the fairer sex. The reputation is a bit contradictory at times. A number of hackers report Stallman's predilection for greeting females with a kiss on the back of the hand.~{ See Mae Ling Mak, "Mae Ling's Story" (December 17, 1998). \\ http://www.crackmonkey.org/pipermail/crackmonkey/1998q4/003006.htm \\ So far, Mak is the only person I've found willing to speak on the record in regard to this practice, although I've heard this from a few other female sources. Mak, despite expressing initial revulsion at it, later managed to put aside her misgivings and dance with Stallman at a 1999 LinuxWorld show. \\ http://www.linux.com/interact/potd.phtml?potd_id=44 }~ A May 26, 2000 Salon.com article, meanwhile, portrays Stallman as a bit of a hacker lothario. Documenting the free software-free love connection, reporter Annalee Newitz presents Stallman as rejecting traditional family values, telling her, "I believe in love, but not monogamy."~{ See Annalee Newitz, "If Code is Free Why Not Me?" Salon.com (May 26, 2000). \\ http://www.salon.com/tech/feature/2000/05/26/free_love/print.html }~ ={Newitz, Annalee;Salon.com} Stallman lets his menu drop a little when I bring this up. "Well, most men seem to want sex and seem to have a rather contemptuous attitude towards women," he says. "Even women they're involved with. I can't understand it at all." @@ -848,7 +839,7 @@ Stallman asks me if I would be interested in hearing the folk filk. As soon as I _1 How much wood could a woodchuck chuck,If a woodchuck could chuck wood? How many poles could a polak lock,If a polak could lock poles? How many knees could a negro grow, If a negro could grow knees? The answer, my dear, is stick it in your ear.The answer is to stick it in your ear. -The singing ends, and Stallman's lips curl into another child-like half smile. I glance around at the nearby tables. The Asian families enjoying their Sunday lunch pay little attention to the bearded alto in their midst.~{ For more Stallman filks, visit
http://www.stallman.org/doggerel.html. To hear Stallman singing "The Free Software Song," visit
http://www.gnu.org/music/free-software-song.html. }~ After a few moments of hesitation, I finally smile too. +The singing ends, and Stallman's lips curl into another child-like half smile. I glance around at the nearby tables. The Asian families enjoying their Sunday lunch pay little attention to the bearded alto in their midst.~{ For more Stallman filks, visit \\ http://www.stallman.org/doggerel.html. To hear Stallman singing "The Free Software Song," visit \\ http://www.gnu.org/music/free-software-song.html. }~ After a few moments of hesitation, I finally smile too. "Do you want that last cornball?" Stallman asks, eyes twinkling. Before I can screw up the punch line, Stallman grabs the corn-encrusted dumpling with his two chopsticks and lifts it proudly. "Maybe I'm the one who should get the cornball," he says. @@ -912,7 +903,7 @@ The waiter, uncomprehending or fooled by the look of the bill, smiles and scurri The AI Lab of the 1970s was by all accounts a special place. Cutting-edge projects and top-flight researchers gave it an esteemed position in the world of computer science. The internal hacker culture and its anarchic policies lent a rebellious mystique as well. Only later, when many of the lab's scientists and software superstars had departed, would hackers fully realize the unique and ephemeral world they had once inhabited. ={AI Lab (Artificial Intelligence Laboratory)+17} -"It was a bit like the Garden of Eden," says Stallman, summing up the lab and its software-sharing ethos in a 1998 Forbes article. "It hadn't occurred to us not to cooperate."~{ See Josh McHugh, "For the Love of Hacking," Forbes (August 10, 1998).
http://www.forbes.com/forbes/1998/0810/6203094a.html }~ +"It was a bit like the Garden of Eden," says Stallman, summing up the lab and its software-sharing ethos in a 1998 Forbes article. "It hadn't occurred to us not to cooperate."~{ See Josh McHugh, "For the Love of Hacking," Forbes (August 10, 1998). \\ http://www.forbes.com/forbes/1998/0810/6203094a.html }~ Such mythological descriptions, while extreme, underline an important fact. The ninth floor of 545 Tech Square was more than a workplace for many. For hackers such as Stallman, it was home. @@ -969,13 +960,13 @@ During the late 1960s, interface design made additional leaps. In a famous 1968 Such innovations would take another two decades to make their way into the commercial marketplace. Still, by the 1970s, video screens had started to replace teletypes as display terminals, creating the potential for full-screen-as opposed to line-by-line-editing capabilities. ={display terminals, replacing teletypes;video screens} -One of the first programs to take advantage of this full-screen capability was the MIT AI Lab's TECO. Short for Text Editor and COrrector, the program had been upgraded by hackers from an old teletype line editor for the lab's PDP-6 machine.~{ According to the Jargon File, TECO's name originally stood for Tape Editor and Corrector.
http://www.tuxedo.org/~esr/jargon/html/entry/TECO.html }~ +One of the first programs to take advantage of this full-screen capability was the MIT AI Lab's TECO. Short for Text Editor and COrrector, the program had been upgraded by hackers from an old teletype line editor for the lab's PDP-6 machine.~{ According to the Jargon File, TECO's name originally stood for Tape Editor and Corrector. \\ http://www.tuxedo.org/~esr/jargon/html/entry/TECO.html }~ -TECO was a substantial improvement over old editors, but it still had its drawbacks. To create and edit a document, a programmer had to enter a series of software commands specifying each edit. It was an abstract process. Unlike modern word processors, which update text with each keystroke, TECO demanded that the user enter an extended series of editing instructions followed by an "end of command" sequence just to change the text.Over time, a hacker grew proficient enough to write entire documents in edit mode, but as Stallman himself would later point out, the process required "a mental skill like that of blindfold chess."~{ See Richard Stallman, "EMACS: The Extensible, Customizable, Display Editor," AI Lab Memo (1979). An updated HTML version of this memo, from which I am quoting, is available at
http://www.gnu.org/software/emacs/emacs-paper.html }~ +TECO was a substantial improvement over old editors, but it still had its drawbacks. To create and edit a document, a programmer had to enter a series of software commands specifying each edit. It was an abstract process. Unlike modern word processors, which update text with each keystroke, TECO demanded that the user enter an extended series of editing instructions followed by an "end of command" sequence just to change the text.Over time, a hacker grew proficient enough to write entire documents in edit mode, but as Stallman himself would later point out, the process required "a mental skill like that of blindfold chess."~{ See Richard Stallman, "EMACS: The Extensible, Customizable, Display Editor," AI Lab Memo (1979). An updated HTML version of this memo, from which I am quoting, is available at \\ http://www.gnu.org/software/emacs/emacs-paper.html }~ To facilitate the process, AI Lab hackers had built a system that displayed both the "source" and "display" modes on a split screen. Despite this innovative hack, switching from mode to mode was still a nuisance. -TECO wasn't the only full-screen editor floating around the computer world at this time. During a visit to the Stanford Artificial Intelligence Lab in 1976, Stallman encountered an edit program named E. The program contained an internal feature, which allowed a user to update display text after each command keystroke. In the language of 1970s programming, E was one of the first rudimentary WYSIWYG editors. Short for "what you see is what you get," WYSIWYG meant that a user could manipulate the file by moving through the displayed text, as opposed to working through a back-end editor program."~{ See Richard Stallman, "Emacs the Full Screen Editor" (1987).
http://www.lysator.liu.se/history/garb/txt/87-1-emacs.txt }~ +TECO wasn't the only full-screen editor floating around the computer world at this time. During a visit to the Stanford Artificial Intelligence Lab in 1976, Stallman encountered an edit program named E. The program contained an internal feature, which allowed a user to update display text after each command keystroke. In the language of 1970s programming, E was one of the first rudimentary WYSIWYG editors. Short for "what you see is what you get," WYSIWYG meant that a user could manipulate the file by moving through the displayed text, as opposed to working through a back-end editor program."~{ See Richard Stallman, "Emacs the Full Screen Editor" (1987). \\ http://www.lysator.liu.se/history/garb/txt/87-1-emacs.txt }~ ={E edit program;Stanford Artificial Intelligence Laboratory} Impressed by the hack, Stallman looked for ways to expand TECO's functionality in similar fashion upon his return to MIT. He found a TECO feature called Control-R, written by Carl Mikkelson and named after the two-key combination that triggered it. Mikkelson's hack switched TECO from its usual abstract command-execution mode to a more intuitive keystroke-by-keystroke mode. Stallman revised the feature in a subtle but significant way. He made it possible to trigger other TECO command strings, or "macros," using other, two-key combinations. Where users had once entered command strings and discarded them after entering then, Stallman's hack made it possible to save macro tricks on file and call them up at will. Mikkelson's hack had raised TECO to the level of a WYSIWYG editor. Stallman's hack had raised it to the level of a user-programmable WYSIWYG editor. "That was the real breakthrough," says Guy Steele, a fellow AI Lab hacker at the time. ^39^ @@ -1014,7 +1005,7 @@ Stallman now faced another conundrum: if users made changes but didn't communica Not everybody accepted the contract. The explosive innovation continued throughout the decade, resulting in a host of Emacs-like programs with varying degrees of cross-compatibility. A few cited their relation to Stallman's original Emacs with humorously recursive names: Sine (Sine is not Emacs), Eine (Eine is not Emacs), and Zwei (Zwei was Eine initially). As a devoted exponent of the hacker ethic, Stallman saw no reason to halt this innovation through legal harassment. Still, the fact that some people would so eagerly take software from the community chest, alter it, and slap a new name on the resulting software displayed a stunning lack of courtesy. ={Eine (Eine is not Emacs) text editor;Zwei (Zwei was Eine initially) text editor;Sine (Sine is not Emacs) text editor} -Such rude behavior was reflected against other, unsettling developments in the hacker community. Brian Reid's 1979 decision to embed "time bombs" in Scribe, making it possible for Unilogic to limit unpaid user access to the software, was a dark omen to Stallman. "He considered it the most Nazi thing he ever saw in his life," recalls Reid. Despite going on to later Internet fame as the cocreator of the Usenet alt heirarchy, Reid says he still has yet to live down that 1979 decision, at least in Stallman's eyes. "He said that all software should be free and the prospect of charging money for software was a crime against humanity."~{ In a 1996 interview with online magazine MEME, Stallman cited Scribe's sale as irksome, but hesitated to mention Reid by name. "The problem was nobody censured or punished this student for what he did," Stallman said. "The result was other people got tempted to follow his example." See MEME 2.04.
http://memex.org/meme2-04.html }~ +Such rude behavior was reflected against other, unsettling developments in the hacker community. Brian Reid's 1979 decision to embed "time bombs" in Scribe, making it possible for Unilogic to limit unpaid user access to the software, was a dark omen to Stallman. "He considered it the most Nazi thing he ever saw in his life," recalls Reid. Despite going on to later Internet fame as the cocreator of the Usenet alt heirarchy, Reid says he still has yet to live down that 1979 decision, at least in Stallman's eyes. "He said that all software should be free and the prospect of charging money for software was a crime against humanity."~{ In a 1996 interview with online magazine MEME, Stallman cited Scribe's sale as irksome, but hesitated to mention Reid by name. "The problem was nobody censured or punished this student for what he did," Stallman said. "The result was other people got tempted to follow his example." See MEME 2.04. \\ http://memex.org/meme2-04.html }~ ={Reid, Brian+1;Unilogic software company;time bombs, in software;Scribe text-formatting program} % additional reference to Unilogic; also time bombs; also scribe text-formatting program @@ -1026,7 +1017,7 @@ Although Stallman had been powerless to head off Reid's sale, he did possess the Over time, Emacs became a sales tool for the hacker ethic. The flexibility Stallman and built into the software not only encouraged collaboration, it demanded it. Users who didn't keep abreast of the latest developments in Emacs evolution or didn't contribute their contributions back to Stallman ran the risk of missing out on the latest breakthroughs. And the breakthroughs were many. Twenty years later, users had modified Emacs for so many different uses-using it as a spreadsheet, calculator, database, and web browser-that later Emacs developers adopted an overflowing sink to represent its versatile functionality. "That's the idea that we wanted to convey," says Stallman. "The amount of stuff it has contained within it is both wonderful and awful at the same time." -Stallman's AI Lab contemporaries are more charitable. Hal Abelson, an MIT grad student who worked with Stallman during the 1970s and would later assist Stallman as a charter boardmember of the Free Software Foundation, describes Emacs as "an absolutely brilliant creation." In giving programmers a way to add new software libraries and features without messing up the system, Abelson says, Stallman paved the way for future large-scale collaborative software projects. "Its structure was robust enough that you'd have people all over the world who were loosely collaborating [and] contributing to it," Abelson says. "I don't know if that had been done before."~{ In writing this chapter, I've elected to focus more on the social significance of Emacs than the software significance. To read more about the software side, I recommend Stallman's 1979 memo. I particularly recommend the section titled "Research Through Development of Installed Tools" (#SEC27). Not only is it accessible to the nontechnical reader, it also sheds light on how closely intertwined Stallman's political philosophies are with his software-design philosophies. A sample excerpt follows:
_1 EMACS could not have been reached by a process of careful design, because such processes arrive only at goals which are visible at the outset, and whose desirability is established on the bottom line at the outset. Neither I nor anyone else visualized an extensible editor until I had made one, nor appreciated its value until he had experienced it. EMACS exists because I felt free to make individually useful small improvements on a path whose end was not in sight. }~ +Stallman's AI Lab contemporaries are more charitable. Hal Abelson, an MIT grad student who worked with Stallman during the 1970s and would later assist Stallman as a charter boardmember of the Free Software Foundation, describes Emacs as "an absolutely brilliant creation." In giving programmers a way to add new software libraries and features without messing up the system, Abelson says, Stallman paved the way for future large-scale collaborative software projects. "Its structure was robust enough that you'd have people all over the world who were loosely collaborating [and] contributing to it," Abelson says. "I don't know if that had been done before."~{ In writing this chapter, I've elected to focus more on the social significance of Emacs than the software significance. To read more about the software side, I recommend Stallman's 1979 memo. I particularly recommend the section titled "Research Through Development of Installed Tools" (#SEC27). Not only is it accessible to the nontechnical reader, it also sheds light on how closely intertwined Stallman's political philosophies are with his software-design philosophies. A sample excerpt follows: \\ EMACS could not have been reached by a process of careful design, because such processes arrive only at goals which are visible at the outset, and whose desirability is established on the bottom line at the outset. Neither I nor anyone else visualized an extensible editor until I had made one, nor appreciated its value until he had experienced it. EMACS exists because I felt free to make individually useful small improvements on a path whose end was not in sight. }~ ={Abelson, Hal} Guy Steele expresses similar admiration. Currently a research scientist for Sun Microsystems, he remembers Stallman primarily as a "brilliant programmer with the ability to generate large quantities of relatively bug-free code." Although their personalities didn't exactly mesh, Steele and Stallman collaborated long enough for Steele to get a glimpse of Stallman's intense coding style. He recalls a notable episode in the late 1970s when the two programmers banded together to write the editor's "pretty print" feature. Originally conceived by Steele, pretty print was another keystroke-triggerd feature that reformatted Emacs' source code so that it was both more readable and took up less space, further bolstering the program's WYSIWIG qualities. The feature was strategic enough to attract Stallman's active interest, and it wasn't long before Steele wrote that he and Stallman were planning an improved version. @@ -1044,7 +1035,7 @@ The length of the session revealed itself when Steele finally left the AI Lab. S On September 27, 1983, computer programmers logging on to the Usenet newsgroup net.unix-wizards encountered an unusual message. Posted in the small hours of the morning, 12:30 a.m. to be exact, and signed by rms@mit-oz, the message's subject line was terse but attention-grabbing. "New UNIX implementation," it read. Instead of introducing a newly released version of Unix, however, the message's opening paragraph issued a call to arms: ={GNU Project:new UNIX implementation;net.unix-wizards newsgroup} -_1 Starting this Thanksgiving I am going to write a complete Unix-compatible software system called GNU (for Gnu's Not Unix), and give it away free to everyone who can use it. Contributions of time, money, programs and equipment are greatly needed.~{ See Richard Stallman, "Initial GNU Announcement" (September 1983).
http://www.gnu.ai.mit.edu/gnu/initial-announcement.html }~ +_1 Starting this Thanksgiving I am going to write a complete Unix-compatible software system called GNU (for Gnu's Not Unix), and give it away free to everyone who can use it. Contributions of time, money, programs and equipment are greatly needed.~{ See Richard Stallman, "Initial GNU Announcement" (September 1983). \\ http://www.gnu.ai.mit.edu/gnu/initial-announcement.html }~ ={Unix operating system:GNU system and} To an experienced Unix developer, the message was a mixture of idealism and hubris. Not only did the author pledge to rebuild the already mature Unix operating system from the ground up, he also proposed to improve it in places. The new GNU system, the author predicted, would carry all the usual components-a text editor, a shell program to run Unix-compatible applications, a compiler, "and a few other things." ^44^ It would also contain many enticing features that other Unix systems didn't yet offer: a graphic user interface based on the Lisp programming language, a crash-proof file system, and networking protocols built according to MIT's internal networking system. @@ -1077,7 +1068,7 @@ The breaking point came in 1982. That was the year the lab's administration deci "Without hackers to maintain the system, [faculty members] said, `We're going to have a disaster; we must have commercial software,'" Stallman would recall a few years later. "They said, `We can expect the company to maintain it.' It proved that they were utterly wrong, but that's what they did."~{ See Richard Stallman (1986). }~ -At first, hackers viewed the Twenex system as yet another authoritarian symbol begging to be subverted. The system's name itself was a protest. Officially dubbed TOPS-20 by DEC, it was a successor to TOPS-10, a commercial operating system DEC marketed for the PDP-10. Bolt Beranek Newman had deveoped an improved version, dubbed Tenex, which TOPS-20 drew upon.~{ Multiple sources: see Richard Stallman interview, Gerald Sussman email, and Jargon File 3.0.0.
http://www.clueless.com/jargon3.0.0/TWENEX.html }~ Stallman, the hacker who coined the Twenex term, says he came up with the name as a way to avoid using the TOPS-20 name. "The system was far from tops, so there was no way I was going to call it that," Stallman recalls. "So I decided to insert a `w' in the Tenex name and call it Twenex." +At first, hackers viewed the Twenex system as yet another authoritarian symbol begging to be subverted. The system's name itself was a protest. Officially dubbed TOPS-20 by DEC, it was a successor to TOPS-10, a commercial operating system DEC marketed for the PDP-10. Bolt Beranek Newman had deveoped an improved version, dubbed Tenex, which TOPS-20 drew upon.~{ Multiple sources: see Richard Stallman interview, Gerald Sussman email, and Jargon File 3.0.0. \\ http://www.clueless.com/jargon3.0.0/TWENEX.html }~ Stallman, the hacker who coined the Twenex term, says he came up with the name as a way to avoid using the TOPS-20 name. "The system was far from tops, so there was no way I was going to call it that," Stallman recalls. "So I decided to insert a `w' in the Tenex name and call it Twenex." ={DEC (Digital Equipment Corporation);TOPS-20 operating system+1} % ={Bolt, Beranek & Newman engineering firm;Tenex} @@ -1097,7 +1088,7 @@ The disguise was a thin one at best. By 1982, Stallman's aversion to passwords a "I'm eternally grateful that MIT let me and many other people use their computers for free," says Hopkins. "It meant a lot to many people." -This so-called "tourist" policy, which had been openly tolerated by MIT management during the ITS years,~{ See "MIT AI Lab Tourist Policy."
http://catalog.com/hopkins/text/tourist-policy.html }~ fell by the wayside when Oz became the lab's primary link to the ARPAnet. At first, Stallman continued his policy of repeating his login ID as a password so outside users could follow in his footsteps. Over time, however, the Oz's fragility prompted administrators to bar outsiders who, through sheer accident or malicious intent, might bring down the system. When those same administrators eventually demanded that Stallman stop publishing his password, Stallman, citing personal ethics, refused to do so and ceased using the Oz system altogether. ^46^ +This so-called "tourist" policy, which had been openly tolerated by MIT management during the ITS years,~{ See "MIT AI Lab Tourist Policy." \\ http://catalog.com/hopkins/text/tourist-policy.html }~ fell by the wayside when Oz became the lab's primary link to the ARPAnet. At first, Stallman continued his policy of repeating his login ID as a password so outside users could follow in his footsteps. Over time, however, the Oz's fragility prompted administrators to bar outsiders who, through sheer accident or malicious intent, might bring down the system. When those same administrators eventually demanded that Stallman stop publishing his password, Stallman, citing personal ethics, refused to do so and ceased using the Oz system altogether. ^46^ "[When] passwords first appeared at the MIT AI Lab I [decided] to follow my belief that there should be no passwords," Stallman would later say. "Because I don't believe that it's really desirable to have security on a computer, I shouldn't be willing to help uphold the security regime." ^46^ @@ -1160,7 +1151,7 @@ Nowhere was this state of affairs more evident than in the realm of personal com One of the most notorious of these programmers was Bill Gates, a Harvard dropout two years Stallman's junior. Although Stallman didn't know it at the time, seven years before sending out his message to the net.unix-wizards newsgroup, Gates, a budding entrepreneur and general partner with the Albuquerque-based software firm Micro-Soft, later spelled as Microsoft, had sent out his own open letter to the software-developer community. Written in response to the PC users copying Micro-Soft's software programs, Gates' " Open Letter to Hobbyists" had excoriated the notion of communal software development. ={Gates, Bill+2;Micro-Soft;net.unix-wizards newsgroup;Open Letter to Hobbyists (Gates)+1} -"Who can afford to do professional work for nothing?" asked Gates. "What hobbyist can put three man-years into programming, finding all bugs, documenting his product, and distributing it for free?"~{ See Bill Gates, "An Open Letter to Hobbyists" (February 3, 1976).
To view an online copy of this letter, go to
http://www.blinkenlights.com/classiccmp/gateswhine.html. }~ +"Who can afford to do professional work for nothing?" asked Gates. "What hobbyist can put three man-years into programming, finding all bugs, documenting his product, and distributing it for free?"~{ See Bill Gates, "An Open Letter to Hobbyists" (February 3, 1976). \\ To view an online copy of this letter, go to \\ http://www.blinkenlights.com/classiccmp/gateswhine.html. }~ Although few hackers at the AI Lab saw the missive, Gates' 1976 letter nevertheless represented the changing attitude toward software both among commercial software companies and commercial software developers. Why treat software as a zero-cost commodity when the market said otherwise? As the 1970s gave way to the 1980s, selling software became more than a way to recoup costs; it became a political statement. At a time when the Reagan Administration was rushing to dismantle many of the federal regulations and spending programs that had been built up during the half century following the Great Depression, more than a few software programmers saw the hacker ethic as anticompetitive and, by extension, un-American. At best, it was a throwback to the anticorporate attitudes of the late 1960s and early 1970s. Like a Wall Street banker discovering an old tie-dyed shirt hiding between French-cuffed shirts and double-breasted suits, many computer programmers treated the hacker ethic as an embarrassing reminder of an idealistic age. @@ -1180,7 +1171,7 @@ group{ If not now, when? -}group ~{ See Richard Stallman, Open Sources (O'Reilly & Associates, Inc., 1999): 56.
Stallman adds his own footnote to this statement, writing, "As an atheist, I don't follow any religious leaders, but I sometimes find I admire something one of them has said." }~ +}group ~{ See Richard Stallman, Open Sources (O'Reilly & Associates, Inc., 1999): 56. \\ Stallman adds his own footnote to this statement, writing, "As an atheist, I don't follow any religious leaders, but I sometimes find I admire something one of them has said." }~ Speaking to audiences, Stallman avoids the religious route and expresses the decision in pragmatic terms. "I asked myself: what could I, an operating-system developer, do to improve the situation? It wasn't until I examined the question for a while that I realized an operating-system developer was exactly what was needed to solve the problem." @@ -1221,7 +1212,7 @@ In the course of reverse-engineering Gosling's interpreter, Stallman would creat Despite the stress it generated, the dispute over Gosling's innovations would assist both Stallman and the free software movement in the long term. It would force Stallman to address the weaknesses of the Emacs Commune and the informal trust system that had allowed problematic offshoots to emerge. It would also force Stallman to sharpen the free software movement's political objectives. Following the release of GNU Emacs in 1985, Stallman issued " The GNU Manifesto," an expansion of the original announcement posted in September, 1983. Stallman included within the document a lengthy section devoted to the many arguments used by commercial and academic programmers to justify the proliferation of proprietary software programs. One argument, "Don't programmers deserve a reward for their creativity," earned a response encapsulating Stallman's anger over the recent Gosling Emacs episode: ={Emacs Commune:proprietary software and;Emacs text editor;GNU Emacs;GNU Manifesto} -"If anything deserves a reward, it is social contribution," Stallman wrote. "Creativity can be a social contribution, but only in so far [sic] as society is free to use the results. If programmers deserve to be rewarded for creating innovative programs, by the same token they deserve to be punished if they restrict the use of these programs."~{ See Richard Stallman, "The GNU Manifesto" (1985).
http://www.gnu.org/manifesto.html }~ +"If anything deserves a reward, it is social contribution," Stallman wrote. "Creativity can be a social contribution, but only in so far [sic] as society is free to use the results. If programmers deserve to be rewarded for creating innovative programs, by the same token they deserve to be punished if they restrict the use of these programs."~{ See Richard Stallman, "The GNU Manifesto" (1985). \\ http://www.gnu.org/manifesto.html }~ With the release of GNU Emacs, the GNU Project finally had code to show. It also had the burdens of any software-based enterprise. As more and more Unix developers began playing with the software, money, gifts, and requests for tapes began to pour in. To address the business side of the GNU Project, Stallman drafted a few of his colleagues and formed the Free Software Foundation (FSF), a nonprofit organization dedicated to speeding the GNU Project towards its goal. With Stallman as president and various hacker allies as board members, the FSF helped provide a corporate face for the GNU Project. ={Free Software Foundation (FSF):GNU Project and;GNU Project:Emacs, release of} @@ -1261,9 +1252,9 @@ Needless to say, Stallman, who stands in front of the room dressed in plain blue As Stallman putters around the front of the room, a few audience members wearing T-shirts with the logo of the Maui FreeBSD Users Group (MFUG) race to set up camera and audio equipment. FreeBSD, a free software offshoot of the Berkeley Software Distribution, the venerable 1970s academic version of Unix, is technically a competitor to the GNU/Linux operating system. Still, in the hacking world, Stallman speeches are documented with a fervor reminiscent of the Grateful Dead and its legendary army of amateur archivists. As the local free software heads, it's up to the MFUG members to make sure fellow programmers in Hamburg, Mumbai, and Novosibirsk don't miss out on the latest pearls of RMS wisdom. ={Berkely Software Distribution (BSD);BSD (Berkely Software Distribution);Grateful Dead, The+1;Maui FreeBSD Users Group} -The analogy to the Grateful Dead is apt. Often, when describing the business opportunities inherent within the free software model, Stallman has held up the Grateful Dead as an example. In refusing to restrict fans' ability to record live concerts, the Grateful Dead became more than a rock group. They became the center of a tribal community dedicated to Grateful Dead music. Over time, that tribal community became so large and so devoted that the band shunned record contracts and supported itself solely through musical tours and live appearances. In 1994, the band's last year as a touring act, the Grateful Dead drew $52 million in gate receipts alone.~{ See "Grateful Dead Time Capsule: 1985-1995 North American Tour Grosses."
http://www.accessplace.com/gdtc/1197.htm }~ +The analogy to the Grateful Dead is apt. Often, when describing the business opportunities inherent within the free software model, Stallman has held up the Grateful Dead as an example. In refusing to restrict fans' ability to record live concerts, the Grateful Dead became more than a rock group. They became the center of a tribal community dedicated to Grateful Dead music. Over time, that tribal community became so large and so devoted that the band shunned record contracts and supported itself solely through musical tours and live appearances. In 1994, the band's last year as a touring act, the Grateful Dead drew $52 million in gate receipts alone.~{ See "Grateful Dead Time Capsule: 1985-1995 North American Tour Grosses." \\ http://www.accessplace.com/gdtc/1197.htm }~ -While few software companies have been able to match that success, the tribal aspect of the free software community is one reason many in the latter half of the 1990s started to accept the notion that publishing software source code might be a good thing. Hoping to build their own loyal followings, companies such as IBM, Sun Microsystems, and Hewlett Packard have come to accept the letter, if not the spirit, of the Stallman free software message. Describing the GPL as the information-technology industry's "Magna Carta," ZDNet software columnist Evan Leibovitch sees the growing affection for all things GNU as more than just a trend. "This societal shift is letting users take back control of their futures," Leibovitch writes. "Just as the Magna Carta gave rights to British subjects, the GPL enforces consumer rights and freedoms on behalf of the users of computer software."~{ See Evan Leibovitch, "Who's Afraid of Big Bad Wolves," ZDNet Tech Update (December 15, 2000).
http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2664992,00.html }~ +While few software companies have been able to match that success, the tribal aspect of the free software community is one reason many in the latter half of the 1990s started to accept the notion that publishing software source code might be a good thing. Hoping to build their own loyal followings, companies such as IBM, Sun Microsystems, and Hewlett Packard have come to accept the letter, if not the spirit, of the Stallman free software message. Describing the GPL as the information-technology industry's "Magna Carta," ZDNet software columnist Evan Leibovitch sees the growing affection for all things GNU as more than just a trend. "This societal shift is letting users take back control of their futures," Leibovitch writes. "Just as the Magna Carta gave rights to British subjects, the GPL enforces consumer rights and freedoms on behalf of the users of computer software."~{ See Evan Leibovitch, "Who's Afraid of Big Bad Wolves," ZDNet Tech Update (December 15, 2000). \\ http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2664992,00.html }~ ={Hewlett Packard;IBM;Sun Microsystems} The tribal aspect of the free software community also helps explain why 40-odd programmers, who might otherwise be working on physics projects or surfing the Web for windsurfing buoy reports, have packed into a conference room to hear Stallman speak. @@ -1275,7 +1266,7 @@ Unlike the New York speech, Stallman gets no introduction. He also offers no sel Once again, Stallman quickly segues into the parable of the Xerox laser printer, taking a moment to deliver the same dramatic finger-pointing gestures to the crowd. He also devotes a minute or two to the GNU/Linux name. -"Some people say to me, `Why make such a fuss about getting credit for this system? After all, the important thing is the job is done, not whether you get recognition for it.' Well, this would be wise advice if it were true. But the job wasn't to build an operating system; the job is to spread freedom to the users of computers. And to do that we have to make it possible to do everything with computers in freedom."~{ For narrative purposes, I have hesitated to go in-depth when describing Stallman's full definition of software "freedom." The GNU Project web site lists four fundamental components:
The freedom to run a program, for any purpose (freedom 0).
The freedom to study how a program works, and adapt it to your needs (freedom 1).
The freedom to redistribute copies of a program so you can help your neighbor (freedom 2).
The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3).
For more information, please visit "The Free Software Definition" at http://www.gnu.org/philosophy/free-sw.html }~ +"Some people say to me, `Why make such a fuss about getting credit for this system? After all, the important thing is the job is done, not whether you get recognition for it.' Well, this would be wise advice if it were true. But the job wasn't to build an operating system; the job is to spread freedom to the users of computers. And to do that we have to make it possible to do everything with computers in freedom."~{ For narrative purposes, I have hesitated to go in-depth when describing Stallman's full definition of software "freedom." The GNU Project web site lists four fundamental components: \\ The freedom to run a program, for any purpose (freedom 0). \\ The freedom to study how a program works, and adapt it to your needs (freedom 1). \\ The freedom to redistribute copies of a program so you can help your neighbor (freedom 2). \\ The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3). \\ For more information, please visit "The Free Software Definition" at http://www.gnu.org/philosophy/free-sw.html }~ Adds Stallman, "There's a lot more work to do." @@ -1329,7 +1320,7 @@ The skit is a lighthearted moment of self-pardoy, a humorous return-jab at the m Discussing the St. Ignucius persona afterward, Stallman says he first came up with it in 1996, long after the creation of Emacs but well before the emergence of the "open source" term and the struggle for hacker-community leadership that precipitated it. At the time, Stallman says, he wanted a way to "poke fun at himself," to remind listeners that, though stubborn, Stallman was not the fanatic some made him out to be. It was only later, Stallman adds, that others seized the persona as a convenient way to play up his reputation as software ideologue, as Eric Raymond did in an 1999 interview with the linux.com web site: ={linux.com;Raymond, Eric:St. Ignucius and+2} -_1 When I say RMS calibrates what he does, I'm not belittling or accusing him of insincerity. I'm saying that like all good communicators he's got a theatrical streak. Sometimes it's conscious-have you ever seen him in his St. Ignucius drag, blessing software with a disk platter on his head? Mostly it's unconscious; he's just learned the degree of irritating stimulus that works, that holds attention without (usually) freaking people out.~{ See "Guest Interview: Eric S. Raymond," Linux.com (May 18, 1999).
http://www.linux.com/interviews/19990518/8/ }~ +_1 When I say RMS calibrates what he does, I'm not belittling or accusing him of insincerity. I'm saying that like all good communicators he's got a theatrical streak. Sometimes it's conscious-have you ever seen him in his St. Ignucius drag, blessing software with a disk platter on his head? Mostly it's unconscious; he's just learned the degree of irritating stimulus that works, that holds attention without (usually) freaking people out.~{ See "Guest Interview: Eric S. Raymond," Linux.com (May 18, 1999). \\ http://www.linux.com/interviews/19990518/8/ }~ Stallman takes issue with the Raymond analysis. "It's simply my way of making fun of myself," he says. "The fact that others see it as anything more than that is a reflection of their agenda, not mine." @@ -1379,7 +1370,7 @@ By the spring of 1985, Richard Stallman had settled on the GNU Project's first m The dispute with UniPress had highlighted a flaw in the Emacs Commune social contract. Where users relied on Stallman's expert insight, the Commune's rules held. In areas where Stallman no longer held the position of alpha hacker-pre-1984 Unix systems, for example-individuals and companies were free to make their own rules. ={UniPress software company} -The tension between the freedom to modify and the freedom to exert authorial privilege had been building before GOSMACS. The Copyright Act of 1976 had overhauled U.S. copyright law, extending the legal protection of copyright to software programs. According to Section 102(b) of the Act, individuals and companies now possessed the ability to copyright the "expression" of a software program but not the "actual processes or methods embodied in the program."~{ See Hal Abelson, Mike Fischer, and Joanne Costello, "Software and Copyright Law," updated version (1998).
http://www.swiss.ai.mit.edu/6805/articles/int-prop/software-copyright.html }~ Translated, programmers and companies had the ability to treat software programs like a story or song. Other programmers could take inspiration from the work, but to make a direct copy or nonsatirical derivative, they first had to secure permission from the original creator. Although the new law guaranteed that even programs without copyright notices carried copyright protection, programmers quickly asserted their rights, attaching coypright notices to their software programs. +The tension between the freedom to modify and the freedom to exert authorial privilege had been building before GOSMACS. The Copyright Act of 1976 had overhauled U.S. copyright law, extending the legal protection of copyright to software programs. According to Section 102(b) of the Act, individuals and companies now possessed the ability to copyright the "expression" of a software program but not the "actual processes or methods embodied in the program."~{ See Hal Abelson, Mike Fischer, and Joanne Costello, "Software and Copyright Law," updated version (1998). \\ http://www.swiss.ai.mit.edu/6805/articles/int-prop/software-copyright.html }~ Translated, programmers and companies had the ability to treat software programs like a story or song. Other programmers could take inspiration from the work, but to make a direct copy or nonsatirical derivative, they first had to secure permission from the original creator. Although the new law guaranteed that even programs without copyright notices carried copyright protection, programmers quickly asserted their rights, attaching coypright notices to their software programs. ={Copyright Act of 1976;copyright laws;GOSMACS (Gosling Emacs);software:copyright laws on} At first, Stallman viewed these notices with alarm. Rare was the software program that didn't borrow source code from past programs, and yet, with a single stroke of the president's pen, Congress had given programmers and companies the power to assert individual authorship over communally built programs. It also injected a dose of formality into what had otherwise been an informal system. Even if hackers could demonstrate how a given program's source-code bloodlines stretched back years, if not decades, the resources and money that went into battling each copyright notice were beyond most hackers' means. Simply put, disputes that had once been settled hacker-to-hacker were now settled lawyer-to-lawyer. In such a system, companies, not hackers, held the automatic advantage. @@ -1411,9 +1402,8 @@ As an example of this informality, Gilmore cites a copyright notice for trn, a U % previous markup as 'poem' with footnote not satisfactory -Copyright (c) 1985, Larry Wall
-You may copy the trn kit in whole or in part as long as you don't try -to make money off it, or pretend that you wrote it.~{ See Trn Kit README.
http://www.za.debian.org/doc/trn/trn-readme }~ +Copyright (c) 1985, Larry Wall \\ +You may copy the trn kit in whole or in part as long as you don't try to make money off it, or pretend that you wrote it.~{ See Trn Kit README. \\ http://www.za.debian.org/doc/trn/trn-readme }~ Such statements, while reflective of the hacker ethic, also reflected the difficulty of translating the loose, informal nature of that ethic into the rigid, legal language of copyright. In writing the GNU Emacs License, Stallman had done more than close up the escape hatch that permitted proprietary offshoots. He had expressed the hacker ethic in a manner understandable to both lawyer and hacker alike. @@ -1439,7 +1429,7 @@ anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it. -}poem ~{ See Richard Stallman, et al., "GNU General Public License: Version 1," (February, 1989).
http://www.gnu.org/copyleft/copying-1.0.html }~ +}poem ~{ See Richard Stallman, et al., "GNU General Public License: Version 1," (February, 1989). \\ http://www.gnu.org/copyleft/copying-1.0.html }~ In fashioning the GPL, Stallman had been forced to make an additional adjustment to the informal tenets of the old Emacs Commune. Where he had once demanded that Commune members publish any and all changes, Stallman now demanded publication only in instances when programmers circulated their derivative versions in the same public manner as Stallman. In other words, programmers who simply modified Emacs for private use no longer needed to send the source-code changes back to Stallman. In what would become a rare compromise of free software doctrine, Stallman slashed the price tag for free software. Users could innovate without Stallman looking over their shoulders just so long as they didn't bar Stallman and the rest of the hacker community from future exchanges of the same program. ={Emacs Commune+1} @@ -1454,7 +1444,7 @@ As hacks go, the GPL stands as one of Stallman's best. It created a system of co "The GPL developed much like any piece of free software with a large community discussing its structure, its respect or the opposite in their observation, needs for tweaking and even to compromise it mildly for greater acceptance," says Jerry Cohen, another attorney who helped Stallman with the creation of the license. "The process worked very well and GPL in its several versions has gone from widespread skeptical and at times hostile response to widespread acceptance." -In a 1986 interview with Byte magazine, Stallman summed up the GPL in colorful terms. In addition to proclaiming hacker values, Stallman said, readers should also "see it as a form of intellectual jujitsu, using the legal system that software hoarders have set up against them."~{ See David Betz and Jon Edwards, "Richard Stallman discusses his public-domain [sic] Unix-compatible software system with BYTE editors," BYTE (July, 1996). (Reprinted on the GNU Project web site: http://www.gnu.org/gnu/byte-interview.html )
This interview offers an interesting, not to mention candid, glimpse at Stallman's political attitudes during the earliest days of the GNU Project. It is also helpful in tracing the evolution of Stallman's rhetoric.
Describing the purpose of the GPL, Stallman says, "I'm trying to change the way people approach knowledge and information in general. I think that to try to own knowledge, to try to control whether people are allowed to use it, or to try to stop other people from sharing it, is sabotage."
Contrast this with a statement to the author in August 2000: "I urge you not to use the term `intellectual property' in your thinking. It will lead you to misunderstand things, because that term generalizes about copyrights, patents, and trademarks. And those things are so different in their effects that it is entirely foolish to try to talk about them at once. If you hear somebody saying something about intellectual property, without quotes, then he's not thinking very clearly and you shouldn't join." }~ Years later, Stallman would describe the GPL's creation in less hostile terms. "I was thinking about issues that were in a sense ethical and in a sense political and in a sense legal," he says. "I had to try to do what could be sustained by the legal system that we're in. In spirit the job was that of legislating the basis for a new society, but since I wasn't a government, I couldn't actually change any laws. I had to try to do this by building on top of the existing legal system, which had not been designed for anything like this." +In a 1986 interview with Byte magazine, Stallman summed up the GPL in colorful terms. In addition to proclaiming hacker values, Stallman said, readers should also "see it as a form of intellectual jujitsu, using the legal system that software hoarders have set up against them."~{ See David Betz and Jon Edwards, "Richard Stallman discusses his public-domain [sic] Unix-compatible software system with BYTE editors," BYTE (July, 1996). (Reprinted on the GNU Project web site: http://www.gnu.org/gnu/byte-interview.html ) \\ This interview offers an interesting, not to mention candid, glimpse at Stallman's political attitudes during the earliest days of the GNU Project. It is also helpful in tracing the evolution of Stallman's rhetoric. \\ Describing the purpose of the GPL, Stallman says, "I'm trying to change the way people approach knowledge and information in general. I think that to try to own knowledge, to try to control whether people are allowed to use it, or to try to stop other people from sharing it, is sabotage." \\ Contrast this with a statement to the author in August 2000: "I urge you not to use the term `intellectual property' in your thinking. It will lead you to misunderstand things, because that term generalizes about copyrights, patents, and trademarks. And those things are so different in their effects that it is entirely foolish to try to talk about them at once. If you hear somebody saying something about intellectual property, without quotes, then he's not thinking very clearly and you shouldn't join." }~ Years later, Stallman would describe the GPL's creation in less hostile terms. "I was thinking about issues that were in a sense ethical and in a sense political and in a sense legal," he says. "I had to try to do what could be sustained by the legal system that we're in. In spirit the job was that of legislating the basis for a new society, but since I wasn't a government, I couldn't actually change any laws. I had to try to do this by building on top of the existing legal system, which had not been designed for anything like this." ={Byte magazine} About the time Stallman was pondering the ethical, political, and legal issues associated with free software, a California hacker named Don Hopkins mailed him a manual for the 68000 microprocessor. Hopkins, a Unix hacker and fellow science-fiction buff, had borrowed the manual from Stallman a while earlier. As a display of gratitude, Hopkins decorated the return envelope with a number of stickers obtained at a local science-fiction convention. One sticker in particular caught Stallman's eye. It read, "Copyleft (L), All Rights Reversed." Following the release of the first version of GPL, Stallman paid tribute to the sticker, nicknaming the free software license "Copyleft." Over time, the nickname and its shorthand symbol, a backwards "C," would become an official Free Software Foundation synonym for the GPL. @@ -1478,7 +1468,7 @@ Hired in 1986, Bostic had taken on the personal project of porting BSD over to t % CSRG abbreviated to SRG above? -The arguments eventually took hold, although not in the way Stallman would have liked. In June, 1989, Berkeley separated its networking code from the rest of the AT&T-owned operating system and distributed it under a University of California license. The contract terms were liberal. All a licensee had to do was give credit to the university in advertisements touting derivative programs.~{ The University of California's "obnoxious advertising clause" would later prove to be a problem. Looking for a less restrictive alternative to the GPL, some hackers used the University of California, replacing "University of California" with the name of their own instution. The result: free software programs that borrowed from dozens of other programs would have to cite dozens of institutions in advertisements. In 1999, after a decade of lobbying on Stallman's part, the University of California agreed to drop this clause.
See "The BSD License Problem" at http://www.gnu.org/philosophy/bsd.html. }~ In contrast to the GPL, proprietary offshoots were permissible. Only one problem hampered the license's rapid adoption: the BSD Networking release wasn't a complete operating system. People could study the code, but it could only be run in conjunction with other proprietary-licensed code. +The arguments eventually took hold, although not in the way Stallman would have liked. In June, 1989, Berkeley separated its networking code from the rest of the AT&T-owned operating system and distributed it under a University of California license. The contract terms were liberal. All a licensee had to do was give credit to the university in advertisements touting derivative programs.~{ The University of California's "obnoxious advertising clause" would later prove to be a problem. Looking for a less restrictive alternative to the GPL, some hackers used the University of California, replacing "University of California" with the name of their own instution. The result: free software programs that borrowed from dozens of other programs would have to cite dozens of institutions in advertisements. In 1999, after a decade of lobbying on Stallman's part, the University of California agreed to drop this clause. \\ See "The BSD License Problem" at http://www.gnu.org/philosophy/bsd.html. }~ In contrast to the GPL, proprietary offshoots were permissible. Only one problem hampered the license's rapid adoption: the BSD Networking release wasn't a complete operating system. People could study the code, but it could only be run in conjunction with other proprietary-licensed code. ={AT&T+1} Over the next few years, Bostic and other University of California employees worked to replace the missing components and turn BSD into a complete, freely redistributable operating system. Although delayed by a legal challenge from Unix Systems Laboratories-the AT&T spin-off that retained ownership of the Unix brand name-the effort would finally bear fruit in the early 1990s. Even before then, however, many of the Berkeley utilities would make their way into Stallman's GNU Project. @@ -1547,14 +1537,14 @@ Jeremy Allison, a Sun user during the late 1980s and programmer destined to run Stallman's growing stature as a software programmer, however, was balanced by his struggles as a project manager. Although the GNU Project moved from success to success in creation of developer-oriented tools, its inability to generate a working kernel-the central "traffic cop" program in all Unix systems that determines which devices and applications get access to the microprocessor and when-was starting to elicit grumbles as the 1980s came to a close. As with most GNU Project efforts, Stallman had started kernel development by looking for an existing program to modify. According to a January 1987 "Gnusletter," Stallman was already working to overhaul TRIX, a Unix kernel developed at MIT. -A review of GNU Project "GNUsletters" of the late 1980s reflects the management tension. In January, 1987, Stallman announced to the world that the GNU Project was working to overhaul TRIX, a Unix kernel developed at MIT. A year later, in February of 1988, the GNU Project announced that it had shifted its attentions to Mach, a lightweight "micro-kernel" developed at Carnegie Mellon. All told, however, official GNU Project kernel development wouldn't commence until 1990.~{ See "HURD History."
http://www.gnu.org/software/hurd/history.html }~ +A review of GNU Project "GNUsletters" of the late 1980s reflects the management tension. In January, 1987, Stallman announced to the world that the GNU Project was working to overhaul TRIX, a Unix kernel developed at MIT. A year later, in February of 1988, the GNU Project announced that it had shifted its attentions to Mach, a lightweight "micro-kernel" developed at Carnegie Mellon. All told, however, official GNU Project kernel development wouldn't commence until 1990.~{ See "HURD History." \\ http://www.gnu.org/software/hurd/history.html }~ % ={Carnegie Mellon University} The delays in kernel development were just one of many concerns weighing on Stallman during this period. In 1989, Lotus Development Corporation filed suit against rival software company, Paperback Software International, for copying menu commands in Lotus' popular 1-2-3 Spreadsheet program. Lotus' suit, coupled with the Apple-Microsoft "look and feel" battle, provided a troublesome backdrop for the GNU Project. Although both suits fell outside the scope of the GNU Project, both revolved around operating systems and software applications developed for the personal computer, not Unix-compatible hardware systems-they threatened to impose a chilling effect on the entire culture of software development. Determined to do something, Stallman recruited a few programmer friends and composed a magazine ad blasting the lawsuits. He then followed up the ad by helping to organize a group to protest the corporations filing the suit. Calling itself the League of Programming Freedom, the group held protests outside the offices of Lotus, Inc. and the Boston courtroom hosting the Lotus trial. ={Apple Computers;Lotus Development Corp.;Microsoft Corporation:Apple Computer lawsuit;Paperback Software International} -The protests were notable.~{ According to a League of Programming Freedom Press, the protests were notable for featuring the first hexadecimal protest chant:
1-2-3-4, toss the lawyers out the door;
5-6-7-8, innovate don't litigate;
9-A-B-C, 1-2-3 is not for me;
D-E-F-O, look and feel have got to go
http://lpf.ai.mit.edu/Links/prep.ai.mit.edu/demo.final.release }~ They document the evolving nature of software industry. Applications had quietly replaced operating systems as the primary corporate battleground. In its unfulfilled quest to build a free software operating system, the GNU Project seemed hopelessly behind the times. Indeed, the very fact that Stallman had felt it necessary to put together an entirely new group dedicated to battling the "look and feel" lawsuits reinforced that obsolescence in the eyes of some observers. +The protests were notable.~{ According to a League of Programming Freedom Press, the protests were notable for featuring the first hexadecimal protest chant: \\ 1-2-3-4, toss the lawyers out the door; \\ 5-6-7-8, innovate don't litigate; \\ 9-A-B-C, 1-2-3 is not for me; \\ D-E-F-O, look and feel have got to go \\ http://lpf.ai.mit.edu/Links/prep.ai.mit.edu/demo.final.release }~ They document the evolving nature of software industry. Applications had quietly replaced operating systems as the primary corporate battleground. In its unfulfilled quest to build a free software operating system, the GNU Project seemed hopelessly behind the times. Indeed, the very fact that Stallman had felt it necessary to put together an entirely new group dedicated to battling the "look and feel" lawsuits reinforced that obsolescence in the eyes of some observers. In 1990, the John D. and Catherine T. MacArthur Foundation cerified Stallman's genius status when it granted Stallman a MacArthur fellowship, therefore making him a recipient for the organization's so-called "genius grant." The grant, a $240,000 reward for launching the GNU Project and giving voice to the free software philosophy, relieved a number of short-term concerns. First and foremost, it gave Stallman, a nonsalaried employee of the FSF who had been supporting himself through consulting contracts, the ability to devote more time to writing GNU code.~{ I use the term "writing" here loosely. About the time of the MacArthur award, Stallman began suffering chronic pain in his hands and was dictating his work to FSF-employed typists. Although some have speculated that the hand pain was the result of repetitive stress injury, or RSI, an injury common among software programmers, Stallman is not 100% sure. "It was NOT carpal tunnel syndrome," he writes. "My hand problem was in the hands themselves, not in the wrists." Stallman has since learned to work without typists after switching to a keyboard with a lighter touch. }~ @@ -1591,7 +1581,7 @@ things people like/dislike in minix, as my OS resembles it somewhat (same physical layout of the file-system (due to practical reasons) among other things). -}poem~{ See "Linux 10th Anniversary."
http://www.linux10.org/history/ }~ +}poem~{ See "Linux 10th Anniversary." \\ http://www.linux10.org/history/ }~ The posting drew a smattering of responses and within a month, Torvalds had posted a 0.01 version of the operating system-i.e., the earliest possible version fit for outside review-on an Internet FTP site. In the course of doing so, Torvalds had to come up with a name for the new system. On his own PC hard drive, Torvalds had saved the program as Linux, a name that paid its respects to the software convention of giving each Unix variant a name that ended with the letter X. Deeming the name too "egotistical," Torvalds changed it to Freax, only to have the FTP site manager change it back. ={Freax} @@ -1605,7 +1595,7 @@ _1 You put six months of your life into this thing and you want to make it avail When it was time to release the 0.12 version of Linux, the first to include a fully integrated version of GCC, Torvalds decided to voice his allegiance with the free software movement. He discarded the old kernel license and replaced it with the GPL. The decision triggered a porting spree, as Torvalds and his collaborators looked to other GNU programs to fold into the growing Linux stew. Within three years, Linux developers were offering their first production release, Linux 1.0, including fully modified versions of GCC, GDB, and a host of BSD tools. -By 1994, the amalgamated operating system had earned enough respect in the hacker world to make some observers wonder if Torvalds hadn't given away the farm by switching to the GPL in the project's initial months. In the first issue of Linux Journal, publisher Robert Young sat down with Torvalds for an interview. When Young asked the Finnish programmer if he felt regret at giving up private ownership of the Linux source code, Torvalds said no. "Even with 20/20 hindsight," Torvalds said, he considered the GPL "one of the very best design decisions" made during the early stages of the Linux project.~{ See Robert Young, "Interview with Linus, the Author of Linux," Linux Journal (March 1, 1994).
http://www.linuxjournal.com/article.php?sid=2736 }~ +By 1994, the amalgamated operating system had earned enough respect in the hacker world to make some observers wonder if Torvalds hadn't given away the farm by switching to the GPL in the project's initial months. In the first issue of Linux Journal, publisher Robert Young sat down with Torvalds for an interview. When Young asked the Finnish programmer if he felt regret at giving up private ownership of the Linux source code, Torvalds said no. "Even with 20/20 hindsight," Torvalds said, he considered the GPL "one of the very best design decisions" made during the early stages of the Linux project.~{ See Robert Young, "Interview with Linus, the Author of Linux," Linux Journal (March 1, 1994). \\ http://www.linuxjournal.com/article.php?sid=2736 }~ ={Young, Robert} % robert young entry added @@ -1637,7 +1627,7 @@ Or were they? To the pessimistically inclined, each sign of acceptance carried i % Intel index ref added -Finally, there was the curious nature of Linux itself. Unrestricted by design bugs (like GNU) and legal disputes (like BSD), Linux' high-speed evolution had been so unplanned, its success so accidental, that programmers closest to the software code itself didn't know what to make of it. More compilation album than operating system, it was comprised of a hacker medley of greatest hits: everything from GCC, GDB, and glibc (the GNU Project's newly developed C Library) to X (a Unix-based graphic user interface developed by MIT's Laboratory for Computer Science) to BSD-developed tools such as BIND (the Berkeley Internet Naming Daemon, which lets users substitute easy-to-remember Internet domain names for numeric IP addresses) and TCP/IP. The arch's capstone, of course, was the Linux kernel-itself a bored-out, super-charged version of Minix. Rather than building their operating system from scratch, Torvalds and his rapidly expanding Linux development team had followed the old Picasso adage, "good artists borrow; great artists steal." Or as Torvalds himself would later translate it when describing the secret of his success: "I'm basically a very lazy person who likes to take credit for things other people actually do."~{ Torvalds has offered this quote in many different settings. To date, however, the quote's most notable appearance is in the Eric Raymond essay, "The Cathedral and the Bazaar" (May, 1997).
http://www.tuxedo.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/index.html }~ +Finally, there was the curious nature of Linux itself. Unrestricted by design bugs (like GNU) and legal disputes (like BSD), Linux' high-speed evolution had been so unplanned, its success so accidental, that programmers closest to the software code itself didn't know what to make of it. More compilation album than operating system, it was comprised of a hacker medley of greatest hits: everything from GCC, GDB, and glibc (the GNU Project's newly developed C Library) to X (a Unix-based graphic user interface developed by MIT's Laboratory for Computer Science) to BSD-developed tools such as BIND (the Berkeley Internet Naming Daemon, which lets users substitute easy-to-remember Internet domain names for numeric IP addresses) and TCP/IP. The arch's capstone, of course, was the Linux kernel-itself a bored-out, super-charged version of Minix. Rather than building their operating system from scratch, Torvalds and his rapidly expanding Linux development team had followed the old Picasso adage, "good artists borrow; great artists steal." Or as Torvalds himself would later translate it when describing the secret of his success: "I'm basically a very lazy person who likes to take credit for things other people actually do."~{ Torvalds has offered this quote in many different settings. To date, however, the quote's most notable appearance is in the Eric Raymond essay, "The Cathedral and the Bazaar" (May, 1997). \\ http://www.tuxedo.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/index.html }~ ={BIND (Berkely Internet Naming Daemon);Berkely Internet Naming Daemon (BIND);C programming language:glibc;GNU Debugger (GDB):Linux and;GDB (GNU Debugger): Linux and;glibc (GNU C Library);GNU C Library (glibc);kernel (Linux);X graphic user interface;Laboratory for Computer Science:X, developing;Minix operating system:kernel, used for Linux;TCP/IP;Torvalds, Linus:Minix, reworking for Linux+2} Such laziness, while admirable from an efficiency perspective, was troubling from a political perspective. For one thing, it underlined the lack of an ideological agenda on Torvalds' part. Unlike the GNU developers, Torvalds hadn't built an operating system out of a desire to give his fellow hackers something to work with; he'd built it to have something he himself could play with. Like Tom Sawyer whitewashing a fence, Torvalds' genius lay less in the overall vision and more in his ability to recruit other hackers to speed the process. @@ -1666,7 +1656,7 @@ The message represented a dramatic about-face on Stallman's part. Until 1993, St The friend's report was correct. Built to run on 386-based machines, Linux was firmly rooted to its low-cost hardware platform. What the friend failed to report, however, was the sizable advantage Linux enjoyed as the only freely modifiable operating system in the marketplace. In other words, while Stallman spent the next three years listening to bug reports from his HURD team, Torvalds was winning over the programmers who would later uproot and replant the operating system onto new platforms. -By 1993, the GNU Project's inability to deliver a working kernel was leading to problems both within the GNU Project and within the free software movement at large. A March, 1993, a Wired magazine article by Simson Garfinkel described the GNU Project as "bogged down" despite the success of the project's many tools.~{ See Simson Garfinkel, "Is Stallman Stalled?" Wired (March, 1993). }~ Those within the project and its nonprofit adjunct, the Free Software Foundation, remember the mood as being even worse than Garfinkel's article let on. "It was very clear, at least to me at the time, that there was a window of opportunity to introduce a new operating system," says Chassell. "And once that window was closed, people would become less interested. Which is in fact exactly what happened."~{ Chassel's concern about there being a 36-month "window" for a new operating system is not unique to the GNU Project. During the early 1990s, free software versions of the Berkeley Software Distribution were held up by Unix System Laboratories' lawsuit restricting the release of BSD-derived software. While many users consider BSD offshoots such as FreeBSD and OpenBSD to be demonstrably superior to GNU/Linux both in terms of performance and security, the number of FreeBSD and OpenBSD users remains a fraction of the total GNU/Linux user population.
To view a sample analysis of the relative success of GNU/Linux in relation to other free software operating systems, see the essay by New Zealand hacker, Liam Greenwood, "Why is Linux Successful" (1999). }~ +By 1993, the GNU Project's inability to deliver a working kernel was leading to problems both within the GNU Project and within the free software movement at large. A March, 1993, a Wired magazine article by Simson Garfinkel described the GNU Project as "bogged down" despite the success of the project's many tools.~{ See Simson Garfinkel, "Is Stallman Stalled?" Wired (March, 1993). }~ Those within the project and its nonprofit adjunct, the Free Software Foundation, remember the mood as being even worse than Garfinkel's article let on. "It was very clear, at least to me at the time, that there was a window of opportunity to introduce a new operating system," says Chassell. "And once that window was closed, people would become less interested. Which is in fact exactly what happened."~{ Chassel's concern about there being a 36-month "window" for a new operating system is not unique to the GNU Project. During the early 1990s, free software versions of the Berkeley Software Distribution were held up by Unix System Laboratories' lawsuit restricting the release of BSD-derived software. While many users consider BSD offshoots such as FreeBSD and OpenBSD to be demonstrably superior to GNU/Linux both in terms of performance and security, the number of FreeBSD and OpenBSD users remains a fraction of the total GNU/Linux user population. \\ To view a sample analysis of the relative success of GNU/Linux in relation to other free software operating systems, see the essay by New Zealand hacker, Liam Greenwood, "Why is Linux Successful" (1999). }~ ={Garfinkel, Simson;GNU Project:kernel;Wired magazine:GNU Project and} % ={Chassell, Robert} @@ -1682,7 +1672,7 @@ Stallman cites a number of issues when explaining the delay. The Lotus and Apple "I figured, OK, the [Mach] part that has to talk to the machine has already been debugged," Stallman says, recalling the HURD team's troubles in a 2000 speech. "With that head start, we should be able to get it done faster. But instead, it turned out that debugging these asynchronous multithreaded programs was really hard. There were timing books that would clobber the files, and that's no fun. The end result was that it took many, many years to produce a test version."~{ See Maui High Performance Computing Center Speech. }~ -Whatever the excuse, or excuses, the concurrent success of the Linux-kernel team created a tense situation. Sure, the Linux kernel had been licensed under the GPL, but as Murdock himself had noted, the desire to treat Linux as a purely free software operating system was far from uniform. By late 1993, the total Linux user population had grown from a dozen or so Minix enthusiasts to somewhere between 20,000 and 100,000.~{ GNU/Linux user-population numbers are sketchy at best, which is why I've provided such a broad range. The 100,000 total comes from the Red Hat "Milestones" site,
http://www.redhat.com/about/corporate/milestones.html }~ What had once been a hobby was now a marketplace ripe for exploitation. Like Winston Churchill watching Soviet troops sweep into Berlin, Stallman felt an understandable set of mixed emotions when it came time to celebrate the Linux "victory."~{ I wrote this Winston Churchill analogy before Stallman himself sent me his own unsolicited comment on Churchill:
_1 World War II and the determination needed to win it was a very strong memory as I was growing up. Statements such as Churchill's, "We will fight them in the landing zones, we will fight them on the beaches . . . we will never surrender," have always resonated for me. }~ +Whatever the excuse, or excuses, the concurrent success of the Linux-kernel team created a tense situation. Sure, the Linux kernel had been licensed under the GPL, but as Murdock himself had noted, the desire to treat Linux as a purely free software operating system was far from uniform. By late 1993, the total Linux user population had grown from a dozen or so Minix enthusiasts to somewhere between 20,000 and 100,000.~{ GNU/Linux user-population numbers are sketchy at best, which is why I've provided such a broad range. The 100,000 total comes from the Red Hat "Milestones" site, \\ http://www.redhat.com/about/corporate/milestones.html }~ What had once been a hobby was now a marketplace ripe for exploitation. Like Winston Churchill watching Soviet troops sweep into Berlin, Stallman felt an understandable set of mixed emotions when it came time to celebrate the Linux "victory."~{ I wrote this Winston Churchill analogy before Stallman himself sent me his own unsolicited comment on Churchill: \\ _1 World War II and the determination needed to win it was a very strong memory as I was growing up. Statements such as Churchill's, "We will fight them in the landing zones, we will fight them on the beaches . . . we will never surrender," have always resonated for me. }~ Although late to the party, Stallman still had clout. As soon as the FSF announced that it would lend its money and moral support to Murdock's software project, other offers of support began rolling in. Murdock dubbed the new project Debian-a compression of his and his wife, Deborah's, names-and within a few weeks was rolling out the first distribution. "[Richard's support] catapulted Debian almost overnight from this interesting little project to something people within the community had to pay attention to," Murdock says. ={Debian+19} @@ -1694,7 +1684,7 @@ In January of 1994, Murdock issued the " Debian Manifesto." Written in the spiri _1 The Free Software Foundation plays an extremely important role in the future of Debian. By the simple fact that they will be distributing it, a message is sent to the world that Linux is not a commercial product and that it never should be, but that this does not mean that Linux will never be able to compete commercially. For those of you who disagree, I challenge you to rationalize the success of GNU Emacs and GCC, which are not commercial software but which have had quite an impact on the commercial market regardless of that fact. -_1 The time has come to concentrate on the future of Linux rather than on the destructive goal of enriching oneself at the expense of the entire Linux community and its future. The development and distribution of Debian may not be the answer to the problems that I have outlined in the Manifesto, but I hope that it will at least attract enough attention to these problems to allow them to be solved.~{ See Ian Murdock, "A Brief History of Debian," (January 6, 1994): Appendix A, "The Debian Manifesto."
http://www.debian.org/doc/manuals/project-history/apA.html }~ +_1 The time has come to concentrate on the future of Linux rather than on the destructive goal of enriching oneself at the expense of the entire Linux community and its future. The development and distribution of Debian may not be the answer to the problems that I have outlined in the Manifesto, but I hope that it will at least attract enough attention to these problems to allow them to be solved.~{ See Ian Murdock, "A Brief History of Debian," (January 6, 1994): Appendix A, "The Debian Manifesto." \\ http://www.debian.org/doc/manuals/project-history/apA.html }~ Shortly after the Manifesto's release, the Free Software Foundation made its first major request. Stallman wanted Murdock to call its distribution "GNU/Linux." At first, Murdock says, Stallman had wanted to use the term " Lignux"-"as in Linux with GNU at the heart of it"-but a sample testing of the term on Usenet and in various impromptu hacker focus groups had merited enough catcalls to convince Stallman to go with the less awkward GNU/Linux. ={Lignux (Linux with GNU)} @@ -1707,7 +1697,7 @@ The deepest split, Murdock says, was over glibc. Short for GNU C Library, glibc In the hacker world, forks are an interesting phenomenon. Although the hacker ethic permits a programmer to do anything he wants with a given program's source code, most hackers prefer to pour their innovations into a central source-code file or "tree" to ensure compatibility with other people's programs. To fork glibc this early in the development of Linux would have meant losing the potential input of hundreds, even thousands, of Linux developers. It would also mean growing incompatibility between Linux and the GNU system that Stallman and the GNU team still hoped to develop. ={forks (code)+3;tree (source code)} -As leader of the GNU Project, Stallman had already experienced the negative effects of a software fork in 1991. A group of Emacs developers working for a software company named Lucid had a falling out over Stallman's unwillingness to fold changes back into the GNU Emacs code base. The fork had given birth to a parallel version, Lucid Emacs, and hard feelings all around.~{ Jamie Zawinski, a former Lucid programmer who would go on to head the Mozilla development team, has a web site that documents the Lucid/GNU Emacs fork, titled, "The Lemacs/FSFmacs Schism."
http://www.jwz.org/doc/lemacs.html }~ +As leader of the GNU Project, Stallman had already experienced the negative effects of a software fork in 1991. A group of Emacs developers working for a software company named Lucid had a falling out over Stallman's unwillingness to fold changes back into the GNU Emacs code base. The fork had given birth to a parallel version, Lucid Emacs, and hard feelings all around.~{ Jamie Zawinski, a former Lucid programmer who would go on to head the Mozilla development team, has a web site that documents the Lucid/GNU Emacs fork, titled, "The Lemacs/FSFmacs Schism." \\ http://www.jwz.org/doc/lemacs.html }~ ={Emacs text editor:Lucid software company and;GNU Emacs:Lucid software company and;Lucid software company} Murdock says Debian was mounting work on a similar fork in glibc source code that motivated Stallman to insist on adding the GNU prefix when Debian rolled out its software distribution. "The fork has since converged. Still, at the time, there was a concern that if the Linux community saw itself as a different thing as the GNU community, it might be a force for disunity." @@ -1758,7 +1748,7 @@ Ready or not. In November , 1995, Peter Salus, a member of the Free Software Foundation and author of the 1994 book, A Quarter Century of Unix, issued a call for papers to members of the GNU Project's "system-discuss" mailing list. Salus, the conference's scheduled chairman, wanted to tip off fellow hackers about the upcoming Conference on Freely Redistributable Software in Cambridge, Massachusetts. Slated for February, 1996 and sponsored by the Free Software Foundation, the event promised to be the first engineering conference solely dedicated to free software and, in a show of unity with other free software programmers, welcomed papers on "any aspect of GNU, Linux, NetBSD, 386BSD, FreeBSD, Perl, Tcl/tk, and other tools for which the code is accessible and redistributable." Salus wrote: ={Free Software Foundation (FSF);FSF (Free Software Foundation);FreeBSD;Conference on Freely Redistributable Software+1;Linux;NetBSD;Perl programming language;386BSD;Salus, Peter+4} -_1 Over the past 15 years, free and low-cost software has become ubiquitous. This conference will bring together implementers of several different types of freely redistributable software and publishers of such software (on various media). There will be tutorials and refereed papers, as well as keynotes by Linus Torvalds and Richard Stallman.~{ See Peter Salus, "FYI-Conference on Freely Redistributable Software, 2/2, Cambridge" (1995) (archived by Terry Winograd).
http://hci.stanford.edu/pcd-archives/pcd-fyi/1995/0078.html }~ +_1 Over the past 15 years, free and low-cost software has become ubiquitous. This conference will bring together implementers of several different types of freely redistributable software and publishers of such software (on various media). There will be tutorials and refereed papers, as well as keynotes by Linus Torvalds and Richard Stallman.~{ See Peter Salus, "FYI-Conference on Freely Redistributable Software, 2/2, Cambridge" (1995) (archived by Terry Winograd). \\ http://hci.stanford.edu/pcd-archives/pcd-fyi/1995/0078.html }~ One of the first people to receive Salus' email was conference committee member Eric S. Raymond. Although not the leader of a project or company like the various other members of the list, Raymond had built a tidy reputation within the hacker community as a major contributor to GNU Emacs and as editor of /{The New Hacker Dictionary}/, a book version of the hacking community's decade-old Jargon File. ={New Hacker Dictionary, The;Raymond, Eric:open source and+56} @@ -1767,7 +1757,7 @@ For Raymond, the 1996 conference was a welcome event. Active in the GNU Project Despite the falling out, Raymond remained active in the free software community. So much so that when Salus suggested a conference pairing Stallman and Torvalds as keynote speakers, Raymond eagerly seconded the idea. With Stallman representing the older, wiser contingent of ITS/Unix hackers and Torvalds representing the younger, more energetic crop of Linux hackers, the pairing indicated a symbolic show of unity that could only be beneficial, especially to ambitious younger (i.e., below 40) hackers such as Raymond. "I sort of had a foot in both camps," Raymond says. -By the time of the conference, the tension between those two camps had become palpable. Both groups had one thing in common, though: the conference was their first chance to meet the Finnish wunderkind in the flesh. Surprisingly, Torvalds proved himself to be a charming, affable speaker. Possessing only a slight Swedish accent, Torvalds surprised audience members with his quick, self-effacing wit.~{ Although Linus Torvalds is Finnish, his mother tongue is Swedish. "The Rampantly Unofficial Linus FAQ" offers a brief explanation:
_1 Finland has a significant (about 6%) Swedish-speaking minority population. They call themselves "finlandssvensk" or "finlandssvenskar" and consider themselves Finns; many of their families have lived in Finland for centuries. Swedish is one of Finland's two official languages.
http://tuxedo.org/~esr/faqs/linus/ }~ Even more surprising, says Raymond, was Torvalds' equal willingness to take potshots at other prominent hackers, including the most prominent hacker of all, Richard Stallman. By the end of the conference, Torvalds' half-hacker, half-slacker manner was winning over older and younger conference-goers alike. +By the time of the conference, the tension between those two camps had become palpable. Both groups had one thing in common, though: the conference was their first chance to meet the Finnish wunderkind in the flesh. Surprisingly, Torvalds proved himself to be a charming, affable speaker. Possessing only a slight Swedish accent, Torvalds surprised audience members with his quick, self-effacing wit.~{ Although Linus Torvalds is Finnish, his mother tongue is Swedish. "The Rampantly Unofficial Linus FAQ" offers a brief explanation: \\ _1 Finland has a significant (about 6%) Swedish-speaking minority population. They call themselves "finlandssvensk" or "finlandssvenskar" and consider themselves Finns; many of their families have lived in Finland for centuries. Swedish is one of Finland's two official languages. \\ http://tuxedo.org/~esr/faqs/linus/ }~ Even more surprising, says Raymond, was Torvalds' equal willingness to take potshots at other prominent hackers, including the most prominent hacker of all, Richard Stallman. By the end of the conference, Torvalds' half-hacker, half-slacker manner was winning over older and younger conference-goers alike. "It was a pivotal moment," recalls Raymond. "Before 1996, Richard was the only credible claimant to being the ideological leader of the entire culture. People who dissented didn't do so in public. The person who broke that taboo was Torvalds." @@ -1785,7 +1775,7 @@ As a former GNU Project member, Raymond sensed an added dynamic to the tension b For Raymond, the defection merely confirmed a growing suspicion: recent delays such as the HURD and recent troubles such as the Lucid-Emacs schism reflected problems normally associated with software project management, not software code development. Shortly after the Freely Redistributable Software Conference, Raymond began working on his own pet software project, a popmail utility called "fetchmail." Taking a cue from Torvalds, Raymond issued his program with a tacked-on promise to update the source code as early and as often as possible. When users began sending in bug reports and feature suggestions, Raymond, at first anticipating a tangled mess, found the resulting software surprisingly sturdy. Analyzing the success of the Torvalds approach, Raymond issued a quick analysis: using the Internet as his "petri dish" and the harsh scrutiny of the hacker community as a form of natural selection, Torvalds had created an evolutionary model free of central planning. ={fetchmail;FreeBSD;Conference on Freely Redistributable Software;Internet} -What's more, Raymond decided, Torvalds had found a way around Brooks' Law. First articulated by Fred P. Brooks, manager of IBM's OS/360 project and author of the 1975 book, The Mythical Man-Month, Brooks' Law held that adding developers to a project only resulted in further project delays. Believing as most hackers that software, like soup, benefits from a limited number of cooks, Raymond sensed something revolutionary at work. In inviting more and more cooks into the kitchen, Torvalds had actually found away to make the resulting software better.~{ Brooks' Law is the shorthand summary of the following quote taken from Brooks' book:
_1 Since software construction is inherently a systems effort-an exercise in complex interrelationships-communication effort is great, and it quickly dominates the decrease in individual task time brought about by partitioning. Adding more men then lengthens, not shortens, the schedule.
See Fred P. Brooks, The Mythical Man-Month (Addison Wesley Publishing, 1995) }~ +What's more, Raymond decided, Torvalds had found a way around Brooks' Law. First articulated by Fred P. Brooks, manager of IBM's OS/360 project and author of the 1975 book, The Mythical Man-Month, Brooks' Law held that adding developers to a project only resulted in further project delays. Believing as most hackers that software, like soup, benefits from a limited number of cooks, Raymond sensed something revolutionary at work. In inviting more and more cooks into the kitchen, Torvalds had actually found away to make the resulting software better.~{ Brooks' Law is the shorthand summary of the following quote taken from Brooks' book: \\ _1 Since software construction is inherently a systems effort-an exercise in complex interrelationships-communication effort is great, and it quickly dominates the decrease in individual task time brought about by partitioning. Adding more men then lengthens, not shortens, the schedule. \\ See Fred P. Brooks, The Mythical Man-Month (Addison Wesley Publishing, 1995) }~ ={Brooks, Fred P.;Mythical Man-Month, The (Brooks)} Raymond put his observations on paper. He crafted them into a speech, which he promptly delivered before a group of friends and neighbors in Chester County, Pennsylvania. Dubbed " The Cathedral and the Bazaar," the speech contrasted the management styles of the GNU Project with the management style of Torvalds and the kernel hackers. Raymond says the response was enthusiastic, but not nearly as enthusiastic as the one he received during the 1997 Linux Kongress, a gathering of Linux users in Germany the next spring. @@ -1823,7 +1813,7 @@ While in California, Raymond also managed to squeeze in a visit to VA Research, Peterson, whose organization had taken an active interest in advancing the free software cause, offered an alternative: open source. -Looking back, Peterson says she came up with the open source term while discussing Netscape's decision with a friend in the public relations industry. She doesn't remember where she came upon the term or if she borrowed it from another field, but she does remember her friend disliking the term.~{ See Malcolm Maclachlan, "Profit Motive Splits Open Source Movement," TechWeb News (August 26, 1998).
http://content.techweb.com/wire/story/TWB19980824S0012 }~ +Looking back, Peterson says she came up with the open source term while discussing Netscape's decision with a friend in the public relations industry. She doesn't remember where she came upon the term or if she borrowed it from another field, but she does remember her friend disliking the term.~{ See Malcolm Maclachlan, "Profit Motive Splits Open Source Movement," TechWeb News (August 26, 1998). \\ http://content.techweb.com/wire/story/TWB19980824S0012 }~ At the meeting, Peterson says, the response was dramatically different. "I was hesitant about suggesting it," Peterson recalls. "I had no standing with the group, so started using it casually, not highlighting it as a new term." To Peterson's surprise, the term caught on. By the end of the meeting, most of the attendees, including Raymond, seemed pleased by it. @@ -1880,7 +1870,7 @@ http://www.opensource.org/docs/definition.html }~ Perens would later resign from the OSI, expressing regret that the organization had set itself up in opposition to Stallman and the FSF. Still, looking back on the need for a free software definition outside the Free Software Foundation's auspices, Perens understands why other hackers might still feel the need for distance. "I really like and admire Richard," says Perens. "I do think Richard would do his job better if Richard had more balance. That includes going away from free software for a couple of months." -Stallman's monomaniacal energies would do little to counteract the public-relations momentum of open source proponents. In August of 1998, when chip-maker Intel purchased a stake in GNU/Linux vendor Red Hat, an accompanying New York Times article described the company as the product of a movement "known alternatively as free software and open source."~{ See Amy Harmon, "For Sale: Free Operating System," New York Times (September 28, 1998).
http://www.nytimes.com/library/tech/98/09/biztech/articles/28linux.html }~ Six months later, a John Markoff article on Apple Computer was proclaiming the company's adoption of the "open source" Apache server in the article headline.~{ See John Markoff, "Apple Adopts `Open Source' for its Server Computers," New York Times (March 17, 1999).
http://www.nytimes.com/library/tech/99/03/biztech/articles/17apple.html }~ +Stallman's monomaniacal energies would do little to counteract the public-relations momentum of open source proponents. In August of 1998, when chip-maker Intel purchased a stake in GNU/Linux vendor Red Hat, an accompanying New York Times article described the company as the product of a movement "known alternatively as free software and open source."~{ See Amy Harmon, "For Sale: Free Operating System," New York Times (September 28, 1998). \\ http://www.nytimes.com/library/tech/98/09/biztech/articles/28linux.html }~ Six months later, a John Markoff article on Apple Computer was proclaiming the company's adoption of the "open source" Apache server in the article headline.~{ See John Markoff, "Apple Adopts `Open Source' for its Server Computers," New York Times (March 17, 1999). \\ http://www.nytimes.com/library/tech/99/03/biztech/articles/17apple.html }~ ={Apache web server;Apple Computers:open source software and;Intel;Markoff, John;Red Hat Inc.:success of+1} Such momentum would coincide with the growing momentum of companies that actively embraced the "open source" term. By August of 1999, Red Hat, a company that now eagerly billed itself as "open source," was selling shares on Nasdaq. In December, VA Linux-formerly VA Research-was floating its own IPO to historical effect. Opening at $30 per share, the company's stock price exploded past the $300 mark in initial trading only to settle back down to the $239 level. Shareholders lucky enough to get in at the bottom and stay until the end experienced a 698% increase in paper wealth, a Nasdaq record. @@ -1890,7 +1880,7 @@ Such momentum would coincide with the growing momentum of companies that activel Among those lucky shareholders was Eric Raymond, who, as a company board member since the Mozilla launch, had received 150,000 shares of VA Linux stock. Stunned by the realization that his essay contrasting the Stallman-Torvalds managerial styles had netted him $36 million in potential wealth, Raymond penned a follow-up essay. In it, Raymond mused on the relationship between the hacker ethic and monetary wealth: -_1 Reporters often ask me these days if I think the open-source community will be corrupted by the influx of big money. I tell them what I believe, which is this: commercial demand for programmers has been so intense for so long that anyone who can be seriously distracted by money is already gone. Our community has been self-selected for caring about other things-accomplishment, pride, artistic passion, and each other.~{ See Eric Raymond, "Surprised by Wealth," Linux Today (December 10, 1999).
http://linuxtoday.com/news_story.php3?ltsn=1999-12-10-001-05-NW-LF }~ +_1 Reporters often ask me these days if I think the open-source community will be corrupted by the influx of big money. I tell them what I believe, which is this: commercial demand for programmers has been so intense for so long that anyone who can be seriously distracted by money is already gone. Our community has been self-selected for caring about other things-accomplishment, pride, artistic passion, and each other.~{ See Eric Raymond, "Surprised by Wealth," Linux Today (December 10, 1999). \\ http://linuxtoday.com/news_story.php3?ltsn=1999-12-10-001-05-NW-LF }~ Whether or not such comments allayed suspicions that Raymond and other open source proponents had simply been in it for the money, they drove home the open source community's ultimate message: all you needed to sell the free software concept is a friendly face and a sensible message. Instead of fighting the marketplace head-on as Stallman had done, Raymond, Torvalds, and other new leaders of the hacker community had adopted a more relaxed approach-ignoring the marketplace in some areas, leveraging it in others. Instead of playing the role of high-school outcasts, they had played the game of celebrity, magnifying their power in the process. @@ -2127,7 +2117,7 @@ During my research, I came across an essay titled "Freedom-Or Copyright?" Writte % additional reference to the Digital Millenium Copyright Act -_1 We still have the same old freedoms in using paper books. But if e-books replace printed books, that exception will do little good. With "electronic ink," which makes it possible to download new text onto an apparently printed piece of paper, even newspapers could become ephemeral. Imagine: no more used book stores; no more lending a book to your friend; no more borrowing one from the public library-no more "leaks" that might give someone a chance to read without paying. (And judging from the ads for Microsoft Reader, no more anonymous purchasing of books either.) This is the world publishers have in mind for us.~{ See "Safari Tech Books Online; Subscriber Agreement: Terms of Service."
http://safari.oreilly.com/mainhlp.asp?help=service }~ +_1 We still have the same old freedoms in using paper books. But if e-books replace printed books, that exception will do little good. With "electronic ink," which makes it possible to download new text onto an apparently printed piece of paper, even newspapers could become ephemeral. Imagine: no more used book stores; no more lending a book to your friend; no more borrowing one from the public library-no more "leaks" that might give someone a chance to read without paying. (And judging from the ads for Microsoft Reader, no more anonymous purchasing of books either.) This is the world publishers have in mind for us.~{ See "Safari Tech Books Online; Subscriber Agreement: Terms of Service." \\ http://safari.oreilly.com/mainhlp.asp?help=service }~ Needless to say, the essay caused some concern. Neither Tracy nor I had discussed the software her company would use nor had we discussed the type of copyright that would govern the e-book's usage. I mentioned the Technology Review article and asked if she could give me information on her company's e-book policies. Tracy promised to get back to me. @@ -2218,9 +2208,9 @@ In July, a full year after the original email from Tracy, I got a call from Henn Sure enough, the issue did come up. I learned through Henning that O'Reilly intended to publish the biography both as a book and as part of its new Safari Tech Books Online subscription service. The Safari user license would involve special restrictions,1 Henning warned, but O'Reilly was willing to allow for a copyright that permitted users to copy and share and the book's text regardless of medium. Basically, as author, I had the choice between two licenses: the Open Publication License or the GNU Free Documentation License. ={Open Publication License (OPL)+8;OPL (Open Publication License)+8;Safari Tech Books Online subscription service} -I checked out the contents and background of each license. The Open Publication License (OPL)~{ See "The Open Publication License: Draft v1.0" (June 8, 1999).
http://opencontent.org/openpub/ }~ gives readers the right to reproduce and distribute a work, in whole or in part, in any medium "physical or electronic," provided the copied work retains the Open Publication License. It also permits modification of a work, provided certain conditions are met. Finally, the Open Publication License includes a number of options, which, if selected by the author, can limit the creation of "substantively modified" versions or book-form derivatives without prior author approval. +I checked out the contents and background of each license. The Open Publication License (OPL)~{ See "The Open Publication License: Draft v1.0" (June 8, 1999). \\ http://opencontent.org/openpub/ }~ gives readers the right to reproduce and distribute a work, in whole or in part, in any medium "physical or electronic," provided the copied work retains the Open Publication License. It also permits modification of a work, provided certain conditions are met. Finally, the Open Publication License includes a number of options, which, if selected by the author, can limit the creation of "substantively modified" versions or book-form derivatives without prior author approval. -The GNU Free Documentation License (GFDL),~{ See "The GNU Free Documentation License: Version 1.1" (March, 2000).
http://www.gnu.org/copyleft/fdl.html }~ meanwhile, permits the copying and distribution of a document in any medium, provided the resulting work carries the same license. It also permits the modification of a document provided certain conditions. Unlike the OPL, however, it does not give authors the option to restrict certain modifications. It also does not give authors the right to reject modifications that might result in a competitive book product. It does require certain forms of front- and back-cover information if a party other than the copyright holder wishes to publish more than 100 copies of a protected work, however. +The GNU Free Documentation License (GFDL),~{ See "The GNU Free Documentation License: Version 1.1" (March, 2000). \\ http://www.gnu.org/copyleft/fdl.html }~ meanwhile, permits the copying and distribution of a document in any medium, provided the resulting work carries the same license. It also permits the modification of a document provided certain conditions. Unlike the OPL, however, it does not give authors the option to restrict certain modifications. It also does not give authors the right to reject modifications that might result in a competitive book product. It does require certain forms of front- and back-cover information if a party other than the copyright holder wishes to publish more than 100 copies of a protected work, however. ={GFDL (GNU Free Documentation License)+1;GNU Free Documentation License (GFDL)+1} In the course of researching the licenses, I also made sure to visit the GNU Project web page titled "Various Licenses and Comments About Them."~{ See http://www.gnu.org/philosophy/license-list.html }~ On that page, I found a Stallman critique of the Open Publication License. Stallman's critique related to the creation of modified works and the ability of an author to select either one of the OPL's options to restrict modification. If an author didn't want to select either option, it was better to use the GFDL instead, Stallman noted, since it minimized the risk of the nonselected options popping up in modified versions of a document. diff --git a/data/v3/samples/free_as_in_freedom_2.richard_stallman_and_the_free_software_revolution.sam_williams.richard_stallman.sst b/data/v3/samples/free_as_in_freedom_2.richard_stallman_and_the_free_software_revolution.sam_williams.richard_stallman.sst index 0ad9038..5fda933 100644 --- a/data/v3/samples/free_as_in_freedom_2.richard_stallman_and_the_free_software_revolution.sam_williams.richard_stallman.sst +++ b/data/v3/samples/free_as_in_freedom_2.richard_stallman_and_the_free_software_revolution.sam_williams.richard_stallman.sst @@ -6,6 +6,9 @@ @creator: :author: Williams, Sam; Stallman, Richard M. +@date: + :published: 2010 + @rights: :copyright: Copyright (C) Sam Williams 2002; Copyright 2010 Richard M. Stallman :license: Published under the GNU Free Documentation License. Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.3 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts, and no Back-Cover Texts. A copy of the license is included in the section entitled "GNU Free Documentation License." @@ -13,28 +16,17 @@ @classify: :topic_register: SiSU:markup sample:book;copyright;GNU/Linux:GPL|copyleft|free software;free software;Software:Software Libré;GPL;Linux:GNU|Software Libré;book:biography;programming -@date: - :published: 2010 +@links: + { Home and Source }http://faifzilla.org/ + { @ Wikipedia }http://en.wikipedia.org/wiki/Free_as_in_Freedom:_Richard_Stallman%27s_Crusade_for_Free_Software + { @ Amazon.com }http://www.amazon.com/gp/product/0596002874 + { @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0596002874 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: - :skin: skin_rms2 :breaks: new=:A,:B,:C,1 - -@links: - { Home and Source }http://faifzilla.org/ - {Free as in Freedom (on Richard Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {@ Wikipedia}http://en.wikipedia.org/wiki/Free_as_in_Freedom:_Richard_Stallman%27s_Crusade_for_Free_Software - {@ Amazon.com}http://www.amazon.com/gp/product/0596002874 - {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0596002874 - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow + :skin: skin_rms2 % http://static.fsf.org/nosvn/faif-2.0.pdf % http://www.scribd.com/doc/55232810/Free-as-in-Freedom-Richard-Stallman diff --git a/data/v3/samples/free_culture.lawrence_lessig.sst b/data/v3/samples/free_culture.lawrence_lessig.sst index a2e059a..621fc69 100644 --- a/data/v3/samples/free_culture.lawrence_lessig.sst +++ b/data/v3/samples/free_culture.lawrence_lessig.sst @@ -11,47 +11,33 @@ :created: 2004-03-25 :issued: 2004-03-25 :available: 2004-03-25 - :modified: 2004-03-25 :valid: 2004-03-25 - -% :created: 2004-04-08 + :modified: 2004-03-25 @rights: :copyright: Copyright (C) Lawrence Lessig, 2004. :license: Free Culture is Licensed under a Creative Commons License. This License permits non-commercial use of this work, so long as attribution is given. For more information about the license, visit http://creativecommons.org/licenses/by-nc/1.0/ @classify: - :type: Book :topic_register: SiSU:markup sample:book;copyright;free culture;creative commons;intellectual property:copyright:creative commons;book:subject:culture|copyright|society|public policy|mass media;culture;society + :type: Book :isbn: 9781594200069 :oclc: 53324884 % :isbn: 1594200068 -% :language: US - -@make: - :breaks: new=:B; break=1 - :skin: skin_lessig - @links: {Free Culture}http://www.free-culture.cc {Remixes}http://www.free-culture.cc/remixes/ - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig {@ Wikipedia}http://en.wikipedia.org/wiki/Free_Culture_%28book%29 {@ Amazon.com}http://www.amazon.com/gp/product/1594200068 {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=1594200068 - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - { CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - { Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ + +@make: + :breaks: new=:B; break=1 + :skin: skin_lessig :A~ @title @author @@ -834,7 +820,7 @@ Let's start with some simple but important points. From the perspective of the l Whether on balance sharing is harmful depends importantly on how harmful type A sharing is. Just as Edison complained about Hollywood, composers complained about piano rolls, recording artists complained about radio, and broadcasters complained about cable TV, the music industry complains that type A sharing is a kind of "theft" that is "devastating" the industry. ={Edison, Thomas} -While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the recording industry's practice to blame technology for any drop in sales. The history of cassette recording is a good example. As a study by Cap Gemini Ernst & Young put it, "Rather than exploiting this new, popular technology, the labels fought it."~{ See Cap Gemini Ernst & Young, /{Technology Evolution and the Music Industry's Business Model Crisis}/ (2003), 3. This report describes the music industry's effort to stigmatize the budding practice of cassette taping in the 1970s, including an advertising campaign featuring a cassette-shape skull and the caption "Home taping is killing music."
At the time digital audio tape became a threat, the Office of Technical Assessment conducted a survey of consumer behavior. In 1988, 40 percent of consumers older than ten had taped music to a cassette format. U.S. Congress, Office of Technology Assessment, /{Copyright and Home Copying: Technology Challenges the Law,}/ OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October 1989), 145-56. }~ The labels claimed that every album taped was an album unsold, and when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer. +While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the recording industry's practice to blame technology for any drop in sales. The history of cassette recording is a good example. As a study by Cap Gemini Ernst & Young put it, "Rather than exploiting this new, popular technology, the labels fought it."~{ See Cap Gemini Ernst & Young, /{Technology Evolution and the Music Industry's Business Model Crisis}/ (2003), 3. This report describes the music industry's effort to stigmatize the budding practice of cassette taping in the 1970s, including an advertising campaign featuring a cassette-shape skull and the caption "Home taping is killing music." \\ At the time digital audio tape became a threat, the Office of Technical Assessment conducted a survey of consumer behavior. In 1988, 40 percent of consumers older than ten had taped music to a cassette format. U.S. Congress, Office of Technology Assessment, /{Copyright and Home Copying: Technology Challenges the Law,}/ OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October 1989), 145-56. }~ The labels claimed that every album taped was an album unsold, and when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer. ={cassette recording+1;recording industry:new technology opposed by+2;technology:established industries threatened by changes in+2} Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record turnaround. "In the end," Cap Gemini concludes, "the 'crisis' ... was not the fault of the tapers" who did not [stop after MTV came into being] - but had to a large extent resulted from stagnation in musical innovation at the major labels."~{ U.S. Congress, /{Copyright and Home Copying,}/ 4. }~ @@ -891,7 +877,7 @@ If 99.4 percent is not good enough, then this is a war on file-sharing technolog Zero tolerance has not been our history. It has not produced the content industry that we know today. The history of American law has been a process of balance. As new technologies changed the way content was distributed, the law adjusted, after some time, to the new technology. In this adjustment, the law sought to ensure the legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less. So, as we've seen, when "mechanical reproduction" threatened the interests of composers, Congress balanced the rights of composers against the interests of the recording industry. It granted rights to composers, but also to the recording artists: Composers were to be paid, but at a price set by Congress. But when radio started broadcasting the recordings made by these recording artists, and they complained to Congress that their "creative property" was not being respected (since the radio station did not have to pay them for the creativity it broadcast), Congress rejected their claim. An indirect benefit was enough. -={artists:recording industry payments to;composers, copyright protections of;Congress, U.S.:on copyright laws+3|on recording industry+1;copyright law:on music recordings+2|statutory licenses in+2;radio:music recordings played on;recording industry:artist remuneration in|copyright protections in|radio broadcast and;statutory licenses|composer's rights vs. producers' rights in} +={artists:recording industry payments to;composers, copyright protections of;Congress, U.S.:on copyright laws+3|on recording industry+1;copyright law:on music recordings+2|statutory licenses in+2;radio:music recordings played on;recording industry:artist remuneration in|copyright protections in|radio broadcast and;statutory licenses:composer's rights vs. producers' rights in} Cable TV followed the pattern of record albums. When the courts rejected the claim that cable broadcasters had to pay for the content they rebroadcast, Congress responded by giving broadcasters a right to compensation, but at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the statutory price. ={cable television+1;Congress, U.S.:on cable television+1;copyright law:on cable television rebroadcasting+1;television:cable vs. broadcast+1} diff --git a/data/v3/samples/free_for_all.peter_wayner.sst b/data/v3/samples/free_for_all.peter_wayner.sst index 27f4136..ba7ac3f 100644 --- a/data/v3/samples/free_for_all.peter_wayner.sst +++ b/data/v3/samples/free_for_all.peter_wayner.sst @@ -6,16 +6,6 @@ @creator: :author: Wayner, Peter -@classify: - :type: Book - :topic_register: SiSU:markup sample:book;GNU/Linux:GPL;free software;open source software;software license:GPL;Linux:GNU|Software Libré;book:subject:Linux|Software Libré|technology - :oclc: 43520955 - :isbn: 9780066620503 - -@rights: - :copyright: Copyright (C) Peter Wayner, 2000. - :license: Free For All is Licensed under a Creative Commons License. This License permits non-commercial use of this work, so long as attribution is given. For more information about the license, visit http://creativecommons.org/licenses/by-nc/1.0/ - @date: :published: 2002-12-22 :created: 2002-12-22 @@ -24,28 +14,27 @@ :modified: 2002-12-22 :valid: 2002-12-22 -% :language: US +@rights: + :copyright: Copyright (C) Peter Wayner, 2000. + :license: Free For All is Licensed under a Creative Commons License. This License permits non-commercial use of this work, so long as attribution is given. For more information about the license, visit http://creativecommons.org/licenses/by-nc/1.0/ + +@classify: + :topic_register: SiSU:markup sample:book;GNU/Linux:GPL;free software;open source software;software license:GPL;Linux:GNU|Software Libré;book:subject:Linux|Software Libré|technology + :type: Book + :oclc: 43520955 + :isbn: 9780066620503 + +@links: + { The Original Authoritative and Updated Version of the Text available in pdf }http://www.wayner.org/books/ffa + { @ Amazon.com }http://www.amazon.com/gp/product/0066620503 + { @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0066620503 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :num_top: 1 :breaks: new=:A,:B,:C,1 :skin: skin_wayner - :image: center - -@links: - {The Original Authoritative and Updated Version of the Text available in pdf}http://www.wayner.org/books/ffa - {Free For All @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {@ Amazon.com}http://www.amazon.com/gp/product/0066620503 - {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0066620503 - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow :A~ @title @author @@ -3057,42 +3046,42 @@ This license was first written by Richard Stallman to control the usage of softw *{Abelson, Reed.}* "Among U.S. Donations, Tons of Worthless Drugs." New York Times, June 29, 1999. -*{Ananian, C. Scott.}* "A Linux Lament: As Red Hat Prepares to Go Public, One Linux Hacker's Dreams of IPO Glory Are Crushed by the Man." Salon magazine, July 30, 1999.
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+*{Williams, Sam.}* "Linus Has Left the Building." Upside, May 5, 1999. \\ http://www.upside.com/Open_Season/ -*{Williams, Riley.}* "Linux Kernel Vertsion History."
+*{Williams, Riley.}* "Linux Kernel Vertsion History." \\ http://ps.cus.umist.ac.uk/~rhw/kernel.versions.html -*{Zawinski, Jamie.}* "Resignation and Postmortem."
+*{Zawinski, Jamie.}* "Resignation and Postmortem." \\ http://www.jwz.org/gruntle/nomo.html 1~other.works Other works by Peter Wayner diff --git a/data/v3/samples/gpl2.fsf.sst b/data/v3/samples/gpl2.fsf.sst index 1d06226..95cf362 100644 --- a/data/v3/samples/gpl2.fsf.sst +++ b/data/v3/samples/gpl2.fsf.sst @@ -5,23 +5,20 @@ @creator: :author: Free Software Foundation +@date: + :published: 1991 + @rights: :copyright: Copyright 1989, 1991 Free Software Foundation, Inc. 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA. :license: Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. -@date: - :published: 1991 - @classify: :topic_register: GPL;Software:license;GNU/Linux:License:GPL @links: - {Free Software Foundation}http://www.fsf.org - {GPL @ SiSU}http://www.jus.uio.no/sisu/gpl2.fsf - {Markup}http://www.jus.uio.no/sisu/sample/markup/gpl2.fsf.sst - {Syntax}http://www.jus.uio.no/sisu/sample/syntax/gpl2.fsf.sst.html - {Free as In Freedom - Richard Stallman's Crusade for Free Software}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier + { Free Software Foundation }http://www.fsf.org + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :skin: skin_gnu diff --git a/data/v3/samples/gpl3.fsf.sst b/data/v3/samples/gpl3.fsf.sst index 2767991..499385d 100644 --- a/data/v3/samples/gpl3.fsf.sst +++ b/data/v3/samples/gpl3.fsf.sst @@ -5,6 +5,11 @@ @creator: :author: Free Software Foundation +@date: + :published: 2007-06-29 + :available: 2007-06-29 + :valid: 2007-06-29 + @rights: :copyright: Copyright (C) 2007 Free Software Foundation, Inc. http://fsf.org/ :license: Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. @@ -12,20 +17,14 @@ @classify: :topic_register: GPL;Software:license -@date: - :published: 2007-06-29 - :available: 2007-06-29 - :valid: 2007-06-29 - @publisher: SiSU on behalf of the Free Software Foundation @links: - {Free Software Foundation}http://www.fsf.org - {GPL3 @ FSF}http://gplv3.fsf.org/ - {GPL @ SiSU}http://www.jus.uio.no/sisu/gpl3.fsf - { Syntax }http://www.jus.uio.no/sisu/sample/syntax/gpl.fsf.sst.html - {GPL3 source text}http://www.gnu.org/licenses/gpl-3.0.txt - {Free as In Freedom - Richard Stallman's Crusade for Free Software}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams + { Free Software Foundation }http://www.fsf.org + { GPL3 @ FSF }http://gplv3.fsf.org/ + { GPL3 source text }http://www.gnu.org/licenses/gpl-3.0.txt + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :skin: skin_gnu @@ -258,8 +257,8 @@ To do so, attach the following notices to the program. It is safest to attach th poem{ - \ - Copyright (C) \ \ + + Copyright (C) This program is free software: you can redistribute it and/or modify it under the terms of the GNU General Public License as published by @@ -282,7 +281,7 @@ If the program does terminal interaction, make it output a short notice like thi poem{ - \ Copyright (C) \ \ + Copyright (C) This program comes with ABSOLUTELY NO WARRANTY; for details type `show w'. This is free software, and you are welcome to redistribute it under certain conditions; type 'show c' for details. diff --git a/data/v3/samples/little_brother.cory_doctorow.sst b/data/v3/samples/little_brother.cory_doctorow.sst index 1fa2658..387154d 100644 --- a/data/v3/samples/little_brother.cory_doctorow.sst +++ b/data/v3/samples/little_brother.cory_doctorow.sst @@ -11,40 +11,31 @@ @rights: :copyright: Copyright (C) Cory Doctorow, 2008. :illustrations: Richard Wilkinson, 2009 - :license: This book is distributed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. That means:
You are free:
* to Share - to copy, distribute and transmit the work
* to Remix - to adapt the work
Under the following conditions:
* Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
* Noncommercial. You may not use this work for commercial purposes.
* Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.
* For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link http://craphound.com/littlebrother
* Any of the above conditions can be waived if you get my permission
More info here: http://creativecommons.org/licenses/by-nc-sa/3.0/us/
See the end of this file for the complete legalese. [Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License] + :license: This book is distributed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. That means: \\ You are free: \\ * to Share - to copy, distribute and transmit the work \\ * to Remix - to adapt the work \\ Under the following conditions: \\ * Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). \\ * Noncommercial. You may not use this work for commercial purposes. \\ * Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one. \\ * For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link http://craphound.com/littlebrother \\ * Any of the above conditions can be waived if you get my permission \\ More info here: http://creativecommons.org/licenses/by-nc-sa/3.0/us/ \\ See the end of this file for the complete legalese. [Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License] \\ Illustration: Richard Wilkinson, Creative Commons Attribution-Share Alike 2.0 Generic license. @classify: - :subject: Novel :topic_register: SiSU:markup sample:book;book:novel:fiction:civil rights|counterculture|young adult|science fiction|computer hackers|terrorism;democracy + :subject: Novel :type: fiction :loc: PZ7.D66237 Lit 2008 :oclc: 176972381 :isbn: 9780765319852 -% After being interrogated for days by the Department of Homeland Security in the aftermath of a major terrorist attack on San Francisco, California, seventeen-year-old Marcus, released into what is now a police state, decides to use his expertise in computer hacking to set things right. +@notes: + :description: After being interrogated for days by the Department of Homeland Security in the aftermath of a major terrorist attack on San Francisco, California, seventeen-year-old Marcus, released into what is now a police state, decides to use his expertise in computer hacking to set things right. + +@links: + { Little Brother home }http://craphound.com/littlebrother + { @ Wikipedia }http://en.wikipedia.org/wiki/Little_Brother_(Cory_Doctorow_novel) + { @ Amazon.com }http://www.amazon.com/Little-Brother-Cory-Doctorow/dp/B002IT5OMA + { @ Barnes & Noble}http://search.barnesandnoble.com/Little-Brother/Cory-Doctorow/e/9780765319852 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :breaks: break=1 :skin: skin_little_brother -@links: - { Little Brother home }http://craphound.com/littlebrother - {Little Brother, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {@ Wikipedia }http://en.wikipedia.org/wiki/Little_Brother_(Cory_Doctorow_novel) - {@ Amazon.com}http://www.amazon.com/Little-Brother-Cory-Doctorow/dp/B002IT5OMA - {@ Barnes & Noble}http://search.barnesandnoble.com/Little-Brother/Cory-Doctorow/e/9780765319852 - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow - {CONTENT, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/content.cory_doctorow - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - :A~ @title @author 1~cc READ THIS FIRST diff --git a/data/v3/samples/the_cathedral_and_the_bazaar.eric_s_raymond.sst b/data/v3/samples/the_cathedral_and_the_bazaar.eric_s_raymond.sst index d7f4c4e..2c30c00 100644 --- a/data/v3/samples/the_cathedral_and_the_bazaar.eric_s_raymond.sst +++ b/data/v3/samples/the_cathedral_and_the_bazaar.eric_s_raymond.sst @@ -5,45 +5,37 @@ @creator: :author: Raymond, Eric S. -@classify: - :type: Book - :topic_register: SiSU:markup sample:book;programming;software:open source software;open source software:development - -@rights: - :copyright: Copyright © 2000 Eric S. Raymond. - :license: Permission is granted to copy, distribute and/or modify this document under the terms of the Open Publication License, version 2.0. - @date: :published: 2002-08-02 :created: 1997-05-21 :issued: 1997-05-21 :available: 1997-05-21 :modified: 2002-08-02 + +@rights: + :copyright: Copyright © 2000 Eric S. Raymond. + :license: Permission is granted to copy, distribute and/or modify this document under the terms of the Open Publication License, version 2.0. + +@classify: + :topic_register: SiSU:markup sample:book;programming;software:open source software;open source software:development + :type: Book :oclc: 45835582 +@notes: + :abstract: I anatomize a successful open-source project, fetchmail, that was run as a deliberate test of the surprising theories about software engineering suggested by the history of Linux. I discuss these theories in terms of two fundamentally different development styles, the "cathedral" model of most of the commercial world versus the "bazaar" model of the Linux world. I show that these models derive from opposing assumptions about the nature of the software-debugging task. I then make a sustained argument from the Linux experience for the proposition that "Given enough eyeballs, all bugs are shallow", suggest productive analogies with other self-correcting systems of selfish agents, and conclude with some exploration of the implications of this insight for the future of software. + @links: - {The Cathedral and the Bazaar @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {The Cathedral and the Bazaar, Source }http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ - {@ Wikipedia}http://en.wikipedia.org/wiki/The_Cathedral_and_the_Bazaar - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free as in Freedom (on Richard Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {CatB @ Amazon.com}http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0596001088/ - {CatB @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0596001088 + { The Cathedral and the Bazaar, Source }http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ + { @ Wikipedia }http://en.wikipedia.org/wiki/The_Cathedral_and_the_Bazaar + { CatB @ Amazon.com }http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0596001088/ + { CatB @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0596001088 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :breaks: new=:C; break=1 :skin: skin_sisu -@notes: - :abstract: I anatomize a successful open-source project, fetchmail, that was run as a deliberate test of the surprising theories about software engineering suggested by the history of Linux. I discuss these theories in terms of two fundamentally different development styles, the "cathedral" model of most of the commercial world versus the "bazaar" model of the Linux world. I show that these models derive from opposing assumptions about the nature of the software-debugging task. I then make a sustained argument from the Linux experience for the proposition that "Given enough eyeballs, all bugs are shallow", suggest productive analogies with other self-correcting systems of selfish agents, and conclude with some exploration of the implications of this insight for the future of software. - :A~ @title @author 1~ The Cathedral and the Bazaar diff --git a/data/v3/samples/the_public_domain.james_boyle.sst b/data/v3/samples/the_public_domain.james_boyle.sst index 142de47..6ad07f1 100644 --- a/data/v3/samples/the_public_domain.james_boyle.sst +++ b/data/v3/samples/the_public_domain.james_boyle.sst @@ -6,29 +6,27 @@ @creator: :author: Boyle, James +@date: + :published: 2008 + @rights: :copyright: 2008, James Boyle :license: Creative Commons Attribution-Noncommercial-Share Alike (CC-BY-NC-SA) 3.0 http://creativecommons.org/licenses/by-nc-sa/3.0/ @classify: :topic_register: public domain -% :subject: #___# -% :type: #___# -% :loc: #___# -% :oclc: #___# -% :isbn: #___# -@date: - :published: 2008 +@links: + { The Public Domain }http://www.thepublicdomain.org/ + { James Boyle }http://james-boyle.com/ + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :headings: none; none; none; none; :num_top: 1 :breaks: new=:C; break=1 -@links: - {SiSU}http://www.jus.uio.no/sisu/SiSU - :A~ @title @author 1~ Acknowledgments @@ -203,7 +201,7 @@ In other words, as all this suggests, this chapter is only an introduction to a 1~ Chapter 2: Thomas Jefferson Writes a Letter -On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.~{Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Association of the United States, 1907), vol. XIII, 326–338 (hereinafter Letter to McPherson), available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html (follow “May 1, 1812” hyperlink, then navigate to image 1057).}~ It was a quiet week in Jefferson’s correspondence. He wrote a letter to Madison about the appointment of a tax assessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new “Rudiments of English Grammar,” discussed the orthography of nouns ending in “y,” accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.~{For example, attempting to procure a former stable master a position (letter from Thomas Jefferson to Samuel H. Smith [August 15, 1813], available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow “May 1, 1812” hyperlink, then navigate to image 1070]), comments on “Rudiments of English Grammar” (letter from Thomas Jefferson to John Waldo [August 16, 1813], in Writings of Thomas Jefferson, vol. XIII, 338–347), orthography of the plurals of nouns ending in “y” (letter from Thomas Jefferson to John Wilson [August 17, 1813], Writings of Thomas Jefferson, vol. XIII, 347–348), accepting the necessary delay in the publication of a study on the anatomy of mammoth bones (letter from Thomas Jefferson to Caspar Wistar [August 17, 1813], available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow “May 1, 1812” hyperlink, then navigate to image 1095]), and discussing the Lewis biography (excerpt of a letter from Thomas Jefferson to Paul Allen [August 18, 1813], Letters of the Lewis and Clark Expedition with Related Documents 1783–1854, ed. Donald Jackson (Urbana: University of Illinois Press, 1962), 586).
It is easy, in fact, reading this prodigious outpouring of knowledge and enthusiasm, to forget the other side of Jefferson and the social system that gave him the leisure to write these letters. Just a few weeks before he wrote to McPherson, he wrote a letter to Jeremiah Goodman about a slave called Hercules who had been imprisoned as a runaway.
“The folly he has committed certainly justifies further punishment, and he goes in expectation of receiving it. . . .” Letter from Thomas Jefferson to Jeremiah A. Goodman (July 26, 1813), in Thomas Jefferson’s Farm Book, ed. Edwin Morris Betts (Charlottesville, Va.: American Philosophical Society, 1999), 36. While leaving the matter up to Goodman, Jefferson argues for leniency and for refraining from further punishment. In that sense, it is a humane letter. But this is one of the authors of the Declaration of Independence, full of glorious principles—unalienable rights; life, liberty, and the pursuit of happiness—enunciated in the context of indignation at relatively mild colonial policies of taxation and legislation. How could a man who thought that taxing tea was tyranny, and that all men had an unalienable right to liberty, believe that it was “folly” justifying “further punishment” for a slave to run away? Reading the letter—a curiously intimate, almost voyeuristic act—one finds oneself saying “What was he thinking?”}~ But on the 13th of August, Jefferson’s mind was on intellectual property, and most specifically, patents. +On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.~{Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Association of the United States, 1907), vol. XIII, 326–338 (hereinafter Letter to McPherson), available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html (follow “May 1, 1812” hyperlink, then navigate to image 1057).}~ It was a quiet week in Jefferson’s correspondence. He wrote a letter to Madison about the appointment of a tax assessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new “Rudiments of English Grammar,” discussed the orthography of nouns ending in “y,” accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.~{For example, attempting to procure a former stable master a position (letter from Thomas Jefferson to Samuel H. Smith [August 15, 1813], available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow “May 1, 1812” hyperlink, then navigate to image 1070]), comments on “Rudiments of English Grammar” (letter from Thomas Jefferson to John Waldo [August 16, 1813], in Writings of Thomas Jefferson, vol. XIII, 338–347), orthography of the plurals of nouns ending in “y” (letter from Thomas Jefferson to John Wilson [August 17, 1813], Writings of Thomas Jefferson, vol. XIII, 347–348), accepting the necessary delay in the publication of a study on the anatomy of mammoth bones (letter from Thomas Jefferson to Caspar Wistar [August 17, 1813], available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow “May 1, 1812” hyperlink, then navigate to image 1095]), and discussing the Lewis biography (excerpt of a letter from Thomas Jefferson to Paul Allen [August 18, 1813], Letters of the Lewis and Clark Expedition with Related Documents 1783–1854, ed. Donald Jackson (Urbana: University of Illinois Press, 1962), 586). \\ It is easy, in fact, reading this prodigious outpouring of knowledge and enthusiasm, to forget the other side of Jefferson and the social system that gave him the leisure to write these letters. Just a few weeks before he wrote to McPherson, he wrote a letter to Jeremiah Goodman about a slave called Hercules who had been imprisoned as a runaway. \\ “The folly he has committed certainly justifies further punishment, and he goes in expectation of receiving it. . . .” Letter from Thomas Jefferson to Jeremiah A. Goodman (July 26, 1813), in Thomas Jefferson’s Farm Book, ed. Edwin Morris Betts (Charlottesville, Va.: American Philosophical Society, 1999), 36. While leaving the matter up to Goodman, Jefferson argues for leniency and for refraining from further punishment. In that sense, it is a humane letter. But this is one of the authors of the Declaration of Independence, full of glorious principles—unalienable rights; life, liberty, and the pursuit of happiness—enunciated in the context of indignation at relatively mild colonial policies of taxation and legislation. How could a man who thought that taxing tea was tyranny, and that all men had an unalienable right to liberty, believe that it was “folly” justifying “further punishment” for a slave to run away? Reading the letter—a curiously intimate, almost voyeuristic act—one finds oneself saying “What was he thinking?”}~ But on the 13th of August, Jefferson’s mind was on intellectual property, and most specifically, patents. Jefferson’s writing is, as usual, apparently effortless. Some find his penmanship a little hard to decipher. To me, used to plowing through the frenzied chicken tracks that law students produce during exams, it seems perfectly clear. If handwriting truly showed the architecture of the soul, then Jefferson’s would conjure up Monticello or the University of Virginia. There are a few revisions and interlineations, a couple of words squeezed in with a caret at the bottom of the line, but for the most part the lines of handwriting simply roll on and on—“the fugitive fermentation of an individual brain,”~{Letter to McPherson, 333.}~ to quote a phrase from the letter, caught in vellum and ink, though that brain has been dust for more than a century and a half. I love libraries. I love the mushroom smell of gently rotting paper, the flaky crackle of manuscripts, and the surprise of matching style of handwriting with style of thought. Today, though, I am viewing his letter over the Internet on a computer screen. (You can too. The details are [in the footnotes].) @@ -255,7 +253,7 @@ _1 We have, then, only one resource left. We must betake ourselves to copyright, Notice that it is the monopolistic quality of intellectual property that really disturbs Macaulay. His was a generation of thinkers for whom the negative effect of monopolies of any kind (and state-granted monopolies in particular) was axiomatic. He becomes almost contemptuous when one of the supporters of copyright extension declared that it was merely “a theory” that monopoly makes things expensive. Macaulay agrees, tongue in cheek. “It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates.”~{Ibid., 198–199.}~ -These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,~{Graham v. John Deere, 383 U.S. 1, 7–11 (1966).}~ and, with one significant recent exception,~{Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1012. In a thoughtful, carefully reasoned, and provocative article, Professor Mossoff argues that Jefferson’s views have been misused by the courts and legal historians, and that if we understand the use of the word “privilege” in historical context, we see that the “patent privilege” was influenced by a philosophy of natural rights as well as the antimonopolist utilitarianism described here. I both agree and disagree.
Professor Mossoff’s central point—that the word “privilege” was not understood by eighteenth-century audiences as the antonym of “right”—is surely correct. To lay great stress on the linguistic point that the patent right is “merely” a “privilege” is to rest one’s argument on a weak reed. But this is not the only argument. One could also believe that intellectual property rights have vital conceptual and practical differences with property rights over tangible objects or land, that the framers of the Constitution who were most involved in the intellectual property clause were deeply opposed to the confusion involved in conflating the two, and that they looked upon this confusion particularly harshly because of an intense concern about state monopolies. One can still disagree with this assessment, of course; one can interpret Madison’s words this way or that, or interpret subsequent patent decisions as deep statements of principle or commonplace rhetorical flourishes. Still it seems to me a much stronger argument than the one based on the privilege–right distinction. I am not sure Professor Mossoff would disagree.
Professor Mossoff is also correct to point out that a “legal privilege” did sometimes mean to an eighteenth-century reader something that the state was duty-bound to grant. There was, in fact, a wide range of sources from which an eighteenth-century lawyer could derive a state obligation to grant a privilege. Eighteenth-century legal talk was a normative bouillabaisse—a rich stew of natural right, common law, utility, and progress—often thrown together without regard to their differences. Some lawyers and judges thought the common law embodied natural rights, others that it represented the dictates of “progress” and “utility,” and others, more confusingly still, seemed to adopt all of those views at once.
Nevertheless, I would agree that some eighteenth-century writers saw claims of common-law right beneath the assertion of some “privileges” and that a smaller number of those assumed common-law right and natural right to be equivalent, and thus saw a strong state obligation to grant a particular privilege based on natural right, wherever that privilege had been recognized by English or U.S. common law. But here is where I part company with Professor Mossoff.
First, I do not believe that the most important architects of the intellectual property clause shared that view when it came to patents and copyrights. Jefferson, of course, was not one of those who believed the state was so bound. “Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body” (Letter to McPherson, 334, emphasis added). More importantly, Jefferson’s thinking about patents was infused by a deeply utilitarian, antimonopolist tinge. So, I would argue, was Madison’s.
The quotations from Madison which I give later show clearly, to me at least, that Madison shared Jefferson’s deeply utilitarian attitude toward patent and copyright law. I think there is very good reason to believe that this attitude was dominant among the Scottish Enlightenment thinkers whose writings were so influential to the framers. I do not think it is an exaggeration to say that the American Revolution was violently against the world of monopoly and corruption that was the supposed target of the English Statute of Monopolies (itself hardly a natural rights document). Yes, those thinkers might fall back into talking about how hard an inventor had worked or construing a patent expansively. Yes, they might think that within the boundaries of settled law, it would be unjust to deny one inventor a patent when the general scheme of patent law had already been laid down. But that did not and does not negate the antimonopolist and, for that matter, utilitarian roots of the Constitution’s intellectual property clause.
Second, while I agree that there were strands of natural right thinking and a labor theory of value in the U.S. intellectual property system, and that they continue to this day—indeed, these were the very views that the Feist decision discussed in Chapter 9 repudiated, as late as 1991—I think it is easy to make too much of that fact. Is this signal or noise? There are conceptual reasons to think it is the latter. Later in this chapter I discuss the evolution of the droits d’auteur tradition in France. Here, at the supposed heart of the natural rights tradition, we find thinkers driven inexorably to consider the question of limits. How far does the supposed natural right extend—in time, in space, in subject matter? It is at that moment that the utilitarian focus and the fear of monopoly represented by Jefferson and Madison—and, for that matter, Locke and Condorcet—become so important.
Professor Mossoff is correct to criticize the focus on the word “privilege,” and also correct that the ideas of natural right and the labor theory of value always color attitudes toward intellectual property claims. But it would be an equal and opposite mistake to ignore two points. First, intellectual property rights are profoundly different from physical property rights over land in ways that should definitively shape policy choices. Second, partly because of those differences, and because of the influence of free-trade Scottish Enlightenment thought on the American Revolution in particular, there was a powerful antimonopolist and free-trade sentiment behind the copyright and patent clause. Simply read the clause. Congress is given the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Does this really read like the work of a group of believers in natural right? On the contrary, it reads like a limited grant of power to achieve a particular utilitarian goal. That sentiment—nicely encapsulated in but by no means limited to the words of Jefferson—is still a good starting place for an understanding of intellectual property.}~ historians of intellectual property have agreed.~{See, e.g., Ochoa and Rose, “Anti-Monopoly Origins,” and Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002). Ochoa, Rose, and Walterscheid stress the antimonopolist concerns that animated some of those who were most active in the debates about intellectual property. They also point out the influence of the English Statute of Monopolies of 1623, which attacked monopolies in general, while making an exception for periods of legal exclusivity for a limited time granted over “sole Working or Making of any Manner of new Manufacture within this Realm, to the first true Inventor or Inventors of such Manufactures which others at the time of the Making of such Letters Patents Grants did not use, so they be not contrary to the Law, nor mischievous to the State, by Raising of the Prices of Commodities at home, or Hurt by Trade, or generally inconvenient.”}~ Jefferson himself had believed that the Constitution should have definite limits on both the term and the scope of intellectual property rights.~{For example, in a letter to Madison commenting on the draft of the Constitution: “I like it, as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me: . . . Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding . . . years, but for no longer term, and no other purpose.” Letter from Thomas Jefferson to James Madison (August 28, 1789), in Writings of Thomas Jefferson, vol. 7, 450–451.}~ James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.~{“Monopolies tho’ in certain cases useful ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the U.S. has limited them to two cases—the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors; and because, for the same reason, the discovery might be expected in a short time from other hands. . . . Monopolies have been granted in other Countries, and by some of the States in this, on another principle, that of supporting some useful undertaking, until experience and success should render the monopoly unnecessary, and lead to a salutary competition . . . But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself in its original operation, may produce more evil than good. In all cases of monopoly, not excepting those in favor of authors and inventors, it would be well to reserve to the State, a right to extinguish the monopoly by paying a specified and reasonable sum. . . . Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight.” James Madison, “Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments” (1819), in “Aspects of Monopoly One Hundred Years Ago,” Harper’s Magazine, ed. Galliard Hunt, 128 (1914), 489–490; also in “Madison’s ‘Detatched Memoranda,’ ” ed. Elizabeth Fleet, William & Mary Quarterly, 3rd series, 3 no. 4 (1946): 551–552, available at http://www.constitution.org/jm/18191213_monopolies.htm.}~ Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen “very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.”~{Adam Smith, The Wealth of Nations, pt. 3, Of the Expenses of Public Works and Public Institutions, 2nd ed. (Oxford: Oxford University Press, 1880), 2:339: “When a company of merchants undertake, at their own risk and expense, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint-stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years. It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit. A temporary monopoly of this kind may be vindicated, upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author. But upon the expiration of the term, the monopoly ought certainly to determine; the forts and garrisons, if it was found necessary to establish any, to be taken into the hands of government, their value to be paid to the company, and the trade to be laid open to all the subjects of the state. By a perpetual monopoly, all the other subjects of the state are taxed very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.”}~ +These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,~{Graham v. John Deere, 383 U.S. 1, 7–11 (1966).}~ and, with one significant recent exception,~{Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1012. In a thoughtful, carefully reasoned, and provocative article, Professor Mossoff argues that Jefferson’s views have been misused by the courts and legal historians, and that if we understand the use of the word “privilege” in historical context, we see that the “patent privilege” was influenced by a philosophy of natural rights as well as the antimonopolist utilitarianism described here. I both agree and disagree. \\ Professor Mossoff’s central point—that the word “privilege” was not understood by eighteenth-century audiences as the antonym of “right”—is surely correct. To lay great stress on the linguistic point that the patent right is “merely” a “privilege” is to rest one’s argument on a weak reed. But this is not the only argument. One could also believe that intellectual property rights have vital conceptual and practical differences with property rights over tangible objects or land, that the framers of the Constitution who were most involved in the intellectual property clause were deeply opposed to the confusion involved in conflating the two, and that they looked upon this confusion particularly harshly because of an intense concern about state monopolies. One can still disagree with this assessment, of course; one can interpret Madison’s words this way or that, or interpret subsequent patent decisions as deep statements of principle or commonplace rhetorical flourishes. Still it seems to me a much stronger argument than the one based on the privilege–right distinction. I am not sure Professor Mossoff would disagree. \\ Professor Mossoff is also correct to point out that a “legal privilege” did sometimes mean to an eighteenth-century reader something that the state was duty-bound to grant. There was, in fact, a wide range of sources from which an eighteenth-century lawyer could derive a state obligation to grant a privilege. Eighteenth-century legal talk was a normative bouillabaisse—a rich stew of natural right, common law, utility, and progress—often thrown together without regard to their differences. Some lawyers and judges thought the common law embodied natural rights, others that it represented the dictates of “progress” and “utility,” and others, more confusingly still, seemed to adopt all of those views at once. \\ Nevertheless, I would agree that some eighteenth-century writers saw claims of common-law right beneath the assertion of some “privileges” and that a smaller number of those assumed common-law right and natural right to be equivalent, and thus saw a strong state obligation to grant a particular privilege based on natural right, wherever that privilege had been recognized by English or U.S. common law. But here is where I part company with Professor Mossoff. \\ First, I do not believe that the most important architects of the intellectual property clause shared that view when it came to patents and copyrights. Jefferson, of course, was not one of those who believed the state was so bound. “Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body” (Letter to McPherson, 334, emphasis added). More importantly, Jefferson’s thinking about patents was infused by a deeply utilitarian, antimonopolist tinge. So, I would argue, was Madison’s. \\ The quotations from Madison which I give later show clearly, to me at least, that Madison shared Jefferson’s deeply utilitarian attitude toward patent and copyright law. I think there is very good reason to believe that this attitude was dominant among the Scottish Enlightenment thinkers whose writings were so influential to the framers. I do not think it is an exaggeration to say that the American Revolution was violently against the world of monopoly and corruption that was the supposed target of the English Statute of Monopolies (itself hardly a natural rights document). Yes, those thinkers might fall back into talking about how hard an inventor had worked or construing a patent expansively. Yes, they might think that within the boundaries of settled law, it would be unjust to deny one inventor a patent when the general scheme of patent law had already been laid down. But that did not and does not negate the antimonopolist and, for that matter, utilitarian roots of the Constitution’s intellectual property clause. \\ Second, while I agree that there were strands of natural right thinking and a labor theory of value in the U.S. intellectual property system, and that they continue to this day—indeed, these were the very views that the Feist decision discussed in Chapter 9 repudiated, as late as 1991—I think it is easy to make too much of that fact. Is this signal or noise? There are conceptual reasons to think it is the latter. Later in this chapter I discuss the evolution of the droits d’auteur tradition in France. Here, at the supposed heart of the natural rights tradition, we find thinkers driven inexorably to consider the question of limits. How far does the supposed natural right extend—in time, in space, in subject matter? It is at that moment that the utilitarian focus and the fear of monopoly represented by Jefferson and Madison—and, for that matter, Locke and Condorcet—become so important. \\ Professor Mossoff is correct to criticize the focus on the word “privilege,” and also correct that the ideas of natural right and the labor theory of value always color attitudes toward intellectual property claims. But it would be an equal and opposite mistake to ignore two points. First, intellectual property rights are profoundly different from physical property rights over land in ways that should definitively shape policy choices. Second, partly because of those differences, and because of the influence of free-trade Scottish Enlightenment thought on the American Revolution in particular, there was a powerful antimonopolist and free-trade sentiment behind the copyright and patent clause. Simply read the clause. Congress is given the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Does this really read like the work of a group of believers in natural right? On the contrary, it reads like a limited grant of power to achieve a particular utilitarian goal. That sentiment—nicely encapsulated in but by no means limited to the words of Jefferson—is still a good starting place for an understanding of intellectual property.}~ historians of intellectual property have agreed.~{See, e.g., Ochoa and Rose, “Anti-Monopoly Origins,” and Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002). Ochoa, Rose, and Walterscheid stress the antimonopolist concerns that animated some of those who were most active in the debates about intellectual property. They also point out the influence of the English Statute of Monopolies of 1623, which attacked monopolies in general, while making an exception for periods of legal exclusivity for a limited time granted over “sole Working or Making of any Manner of new Manufacture within this Realm, to the first true Inventor or Inventors of such Manufactures which others at the time of the Making of such Letters Patents Grants did not use, so they be not contrary to the Law, nor mischievous to the State, by Raising of the Prices of Commodities at home, or Hurt by Trade, or generally inconvenient.”}~ Jefferson himself had believed that the Constitution should have definite limits on both the term and the scope of intellectual property rights.~{For example, in a letter to Madison commenting on the draft of the Constitution: “I like it, as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me: . . . Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding . . . years, but for no longer term, and no other purpose.” Letter from Thomas Jefferson to James Madison (August 28, 1789), in Writings of Thomas Jefferson, vol. 7, 450–451.}~ James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.~{“Monopolies tho’ in certain cases useful ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the U.S. has limited them to two cases—the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors; and because, for the same reason, the discovery might be expected in a short time from other hands. . . . Monopolies have been granted in other Countries, and by some of the States in this, on another principle, that of supporting some useful undertaking, until experience and success should render the monopoly unnecessary, and lead to a salutary competition . . . But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself in its original operation, may produce more evil than good. In all cases of monopoly, not excepting those in favor of authors and inventors, it would be well to reserve to the State, a right to extinguish the monopoly by paying a specified and reasonable sum. . . . Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight.” James Madison, “Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments” (1819), in “Aspects of Monopoly One Hundred Years Ago,” Harper’s Magazine, ed. Galliard Hunt, 128 (1914), 489–490; also in “Madison’s ‘Detatched Memoranda,’ ” ed. Elizabeth Fleet, William & Mary Quarterly, 3rd series, 3 no. 4 (1946): 551–552, available at http://www.constitution.org/jm/18191213_monopolies.htm.}~ Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen “very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.”~{Adam Smith, The Wealth of Nations, pt. 3, Of the Expenses of Public Works and Public Institutions, 2nd ed. (Oxford: Oxford University Press, 1880), 2:339: “When a company of merchants undertake, at their own risk and expense, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint-stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years. It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit. A temporary monopoly of this kind may be vindicated, upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author. But upon the expiration of the term, the monopoly ought certainly to determine; the forts and garrisons, if it was found necessary to establish any, to be taken into the hands of government, their value to be paid to the company, and the trade to be laid open to all the subjects of the state. By a perpetual monopoly, all the other subjects of the state are taxed very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.”}~ It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them—Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term. Here is Macaulay again, waxing eloquently sarcastic about the costs and benefits of extending the copyright term so that it would last many years after the author’s death: @@ -350,7 +348,7 @@ Of course, we could build a culture around a notion of natural, absolute, and pe Or perhaps not. Think of the way that Jefferson traced the origins of the mechanical arts used in the elevators and hopper-boys all the way back to ancient Persia. (In Mr. Helprin’s utopia, presumably, a royalty stream would run to Cyrus the Great’s engineers.) Jefferson’s point was that for the process of invention to work, we need to confine narrowly the time and scope of the state-provided monopoly, otherwise further inventions would become impossible. Each process or part of a new invention would risk infringing a myriad of prior patents on its subcomponents. Innovation would strangle in a thicket of conflicting monopolies with their roots vanishing back in time. Presumably the title of Mr. Helprin’s excellent novel would require clearance from Shakespeare’s heirs. -Of course, one could construct a more modest Lockean idea of intellectual property~{The two most influential and brilliant examples are Justin Hughes, “The Philosophy of Intellectual Property,” Georgetown Law Journal 77 (1988): 287–366, and Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” Yale Law Journal 102 (1993): 1533–1610. Both of these articles attempt not to use Locke as the basis for a world of absolute right, but instead to focus on the Locke whose world of private property coexisted with a commons—albeit one much diminished after the invention of money. If one goes far enough into the Lockean conception—fine-tuning “enough and as good” so as to allow for a vigorous commons, and the claims of labor so as to take account of the importance of the embedded contributions of culture and science—then the differences between the Jeffersonian view and the Lockean view start to recede in significance. Academics have found the Lockean view attractive, noting, correctly, that Locke is commonly brandished as a rhetorical emblem for property schemes that he himself would have scorned. Yet when one looks at the actual world of intellectual property policy discourse, and the difficulty of enunciating even the simple Jeffersonian antimonopolist ideas I lay out here, it is hard to imagine the nuanced Lockean view flourishing. Consider this comment of Jeremy Waldron’s and ask yourself—is this result more likely from within the Jeffersonian or the Lockean view?
Our tendency of course is to focus on authors when we think about intellectual property. Many of us are authors ourselves: reading a case about copyright we can empathize readily with a plaintiff’s feeling for the effort he has put in, his need to control his work, and his natural desire to reap the fruits of his own labor. In this Essay, however, I shall look at the way we think about actual, potential and putative infringers of copyright, those whose freedom is or might be constrained by others’ ownership of songs, plays, words, images and stories. Clearly our concept of the author and this concept of the copier are two sides of the same coin. If we think of an author as having a natural right to profit from his work, then we will think of the copier as some sort of thief; whereas if we think of the author as beneficiary of a statutory monopoly, it may be easier to see the copier as an embodiment of free enterprise values. These are the connections I want to discuss, and my argument will be that we cannot begin to unravel the conundrums of moral justification in this area unless we are willing to approach the matter even-handedly from both sides of the question.
After a magisterial study of justifications for the existing world of intellectual property, Waldron concludes, “[t]he fact is, however, that whether or not we speak of a burden of proof, an institution like intellectual property is not self-justifying; we owe a justification to anyone who finds that he can move less freely than he would in the absence of the institution. So although the people whose perspective I have taken—the copiers—may be denigrated as unoriginal plagiarists or thieves of others’ work, still they are the ones who feel the immediate impact of our intellectual property laws. It affects what they may do, how they may speak, and how they may earn a living. Of course nothing is settled by saying that it is their interests that are particularly at stake; if the tables were turned, we should want to highlight the perspective of the authors. But as things stand, the would-be copiers are the ones to whom a justification of intellectual property is owed.” See Jeremy Waldron, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” Chicago-Kent Law Review 68 (1993): 841, 842, 887. That justification seems more plausibly and practically to come from the perspective I sketch out here. See also William Fisher, “Theories of Intellectual Property,” in New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer (Cambridge: Cambridge University Press, 2001), 168–200.} —building on the notion of “enough and as good” left over for others and drawing the limits tightly enough to avoid the worst of Mr. Helprin’s excesses. But as one attempts to do this systematically, the power of the Jeffersonian vision becomes all the more apparent—at least as a starting place. +Of course, one could construct a more modest Lockean idea of intellectual property~{The two most influential and brilliant examples are Justin Hughes, “The Philosophy of Intellectual Property,” Georgetown Law Journal 77 (1988): 287–366, and Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” Yale Law Journal 102 (1993): 1533–1610. Both of these articles attempt not to use Locke as the basis for a world of absolute right, but instead to focus on the Locke whose world of private property coexisted with a commons—albeit one much diminished after the invention of money. If one goes far enough into the Lockean conception—fine-tuning “enough and as good” so as to allow for a vigorous commons, and the claims of labor so as to take account of the importance of the embedded contributions of culture and science—then the differences between the Jeffersonian view and the Lockean view start to recede in significance. Academics have found the Lockean view attractive, noting, correctly, that Locke is commonly brandished as a rhetorical emblem for property schemes that he himself would have scorned. Yet when one looks at the actual world of intellectual property policy discourse, and the difficulty of enunciating even the simple Jeffersonian antimonopolist ideas I lay out here, it is hard to imagine the nuanced Lockean view flourishing. Consider this comment of Jeremy Waldron’s and ask yourself—is this result more likely from within the Jeffersonian or the Lockean view? \\ Our tendency of course is to focus on authors when we think about intellectual property. Many of us are authors ourselves: reading a case about copyright we can empathize readily with a plaintiff’s feeling for the effort he has put in, his need to control his work, and his natural desire to reap the fruits of his own labor. In this Essay, however, I shall look at the way we think about actual, potential and putative infringers of copyright, those whose freedom is or might be constrained by others’ ownership of songs, plays, words, images and stories. Clearly our concept of the author and this concept of the copier are two sides of the same coin. If we think of an author as having a natural right to profit from his work, then we will think of the copier as some sort of thief; whereas if we think of the author as beneficiary of a statutory monopoly, it may be easier to see the copier as an embodiment of free enterprise values. These are the connections I want to discuss, and my argument will be that we cannot begin to unravel the conundrums of moral justification in this area unless we are willing to approach the matter even-handedly from both sides of the question. \\ After a magisterial study of justifications for the existing world of intellectual property, Waldron concludes, “[t]he fact is, however, that whether or not we speak of a burden of proof, an institution like intellectual property is not self-justifying; we owe a justification to anyone who finds that he can move less freely than he would in the absence of the institution. So although the people whose perspective I have taken—the copiers—may be denigrated as unoriginal plagiarists or thieves of others’ work, still they are the ones who feel the immediate impact of our intellectual property laws. It affects what they may do, how they may speak, and how they may earn a living. Of course nothing is settled by saying that it is their interests that are particularly at stake; if the tables were turned, we should want to highlight the perspective of the authors. But as things stand, the would-be copiers are the ones to whom a justification of intellectual property is owed.” See Jeremy Waldron, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” Chicago-Kent Law Review 68 (1993): 841, 842, 887. That justification seems more plausibly and practically to come from the perspective I sketch out here. See also William Fisher, “Theories of Intellectual Property,” in New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer (Cambridge: Cambridge University Press, 2001), 168–200.} —building on the notion of “enough and as good” left over for others and drawing the limits tightly enough to avoid the worst of Mr. Helprin’s excesses. But as one attempts to do this systematically, the power of the Jeffersonian vision becomes all the more apparent—at least as a starting place. The Jefferson Warning will play an important role in this book. But my arguments here have implications far beyond Jefferson’s time, country, or constitutional tradition. In the last analysis, I hope to convince you of the importance of the Jefferson Warning or the views of Macaulay not because they are famous authorities and revered thinkers or because they framed constitutions or debated legislation. I wish to convince you that their views are important because they encapsulate neatly an important series of truths about intellectual property. We should listen to the Jefferson Warning not because it is prestigious but because of its insight. As the Diderot-Condorcet debates point out, the questions on which Jefferson and Macaulay focused do not disappear merely because one embraces a philosophy of moral rights—if anything, they become more pressing, particularly when one comes to define the limits of intellectual property in scope and time. I ask that those readers who remain leery of the Jeffersonian focus concentrate on that last issue. In an era when we have been expanding intellectual property rights relentlessly, it is a crucial one. If the Jefferson Warning produces in my unconvinced reader even a slight queasiness about the likely effects of such a process of expansion, it will have done its job—though in fact the tradition it represented was much richer than a simple utilitarian series of cautions. @@ -503,7 +501,7 @@ As bioinformatics blurs the line between computer modeling and biological resear Of course, we would hope that in your daily actions you scrupulously observed the rights—all the rights—of the companies that have interests in the texts, tunes, images of celebrities, trademarks, business method patents, and fragments of computer code you dealt with. Did you? Can you be sure? I teach intellectual property, but I admit to some uncertainty. I would not have imagined that a temporary image of a Web page captured in the cache of my browser counted as a “copy” for the purposes of copyright law.~{See James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard Journal of Law & Technology 10 (1996): 47–112.}~ I would have thought that it was fair use for a company to photocopy articles in journals it subscribed to, and paid for, in order to circulate them to its researchers.~{American Geophysical Union v. Texaco, 37 F.3d 882 (2nd Cir. 1994).}~ If a conservative Web site reposted news articles from liberal newspapers with critical commentary, that, too, would have seemed like fair use.~{Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000).}~ I would have thought that it was beneficial competition, and not a trespass, for an electronic “aggregator” to gather together auction prices or airline fares, so as to give consumers more choice.~{eBay, Inc. v. Bidder’s Edge, Inc. , 100 F. Supp. 2d 1058 (N.D. Cal. 2000).}~ I would not have thought that a search engine that catalogued and displayed in framed format the digital graphics found on the Internet would be sued for infringing the copyrights of the owners of those images.~{Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). After initially holding that while thumbnails were fair use, inline links that displayed pictures were not fair use, the court reversed itself and found fair use in both instances.}~ I would not have thought that I might be sued for violating intellectual property law if I tried to compete with a printer company by making toner cartridges that were compatible with its printers.~{After a District Court issued a temporary injunction telling Static Controls that it must cease manufacturing generic toner cartridges that operated in Lexmark printers—indicating it was likely to be found to be violating the Digital Millennium Copyright Act’s “anti-circumvention” provisions—the Appeals Court held that such cartridges did not in fact violate the DMCA. Lexmark International, Inc. v. Static Control Components, Inc. , 387 F.3d 522 (6th Cir. 2004).}~ -The examples go on. I know that the “research exemption” in U.S. patent law is very tightly limited, but I would have laughed if you had told me that even a research university was forbidden from doing research unless that research had no conceivable practical or academic worth—in other words that even in academia, in a project with no commercial goal, the research exemption only covered research that was completely pointless.~{Madey v. Duke Univ. , 307 F.3d 1351 (Fed. Cir. 2003), cert. denied, 539 U.S. 958 (2003).}~ Why have an exemption at all, in that case? I would have told an academic cryptography researcher that he need not fear legal threats from copyright owners simply for researching and publishing work on the vulnerabilities of copy protection schemes.~{“When scientists from Princeton University and Rice University tried to publish their findings [on the vulnerabilities in a copy protection scheme] in April 2001, the recording industry claimed that the 1998 Digital Millennium Copyright Act (DMCA) makes it illegal to discuss or provide technology that might be used to bypass industry controls limiting how consumers can use music they have purchased. ‘Studying digital access technologies and publishing the research for our colleagues are both fundamental to the progress of science and academic freedom,’ stated Princeton scientist Edward Felten. ‘The recording industry’s interpretation of the DMCA would make scientific progress on this important topic illegal.’ . . .
“SDMI sponsored the ‘SDMI Public Challenge’ in September 2000, asking Netizens to try to break their favored watermark schemes, designed to control consumer access to digital music. When the scientists’ paper about their successful defeat of the watermarks, including one developed by a company called Verance, was accepted for publication, Matt Oppenheim, an officer of both RIAA and SDMI, sent the Princeton professor a letter threatening legal liability if the scientist published his results.” “EFF Media Release: Princeton Scientists Sue Over Squelched Research,” available at http://w2.eff.org/IP/DMCA/Felten_v_RIAA/20010606_eff_felten_pr.html. After a First Amendment challenge to the relevant provisions of the DMCA, the threats were withdrawn.}~ I would not have thought that one could patent the idea of having an electronic Dutch auction on the Internet, working out the daily prices of a bundle of mutual funds through simple arithmetic, or buying something online with one click.~{See, e.g., Robert P. Merges, “As Many as Six Impossible Patents before Breakfast: Property Rights for Business Concepts and Patent System Reform,” Berkeley Technology Law Journal 14 (1999): 615.}~ I would have assumed that celebrities’ rights to control their images should end with their deaths, and that courts would agree that those rights were tightly limited by the First Amendment. Yet, in each of these cases, I would have been wrong, or at least I might be wrong—enough that a sane person would worry. Not all of the expansive claims eventually triumphed, of course, but some did. Guessing which would and which would not was hard even for me, though, as I said, I teach intellectual property law. You, probably, do not. +The examples go on. I know that the “research exemption” in U.S. patent law is very tightly limited, but I would have laughed if you had told me that even a research university was forbidden from doing research unless that research had no conceivable practical or academic worth—in other words that even in academia, in a project with no commercial goal, the research exemption only covered research that was completely pointless.~{Madey v. Duke Univ. , 307 F.3d 1351 (Fed. Cir. 2003), cert. denied, 539 U.S. 958 (2003).}~ Why have an exemption at all, in that case? I would have told an academic cryptography researcher that he need not fear legal threats from copyright owners simply for researching and publishing work on the vulnerabilities of copy protection schemes.~{“When scientists from Princeton University and Rice University tried to publish their findings [on the vulnerabilities in a copy protection scheme] in April 2001, the recording industry claimed that the 1998 Digital Millennium Copyright Act (DMCA) makes it illegal to discuss or provide technology that might be used to bypass industry controls limiting how consumers can use music they have purchased. ‘Studying digital access technologies and publishing the research for our colleagues are both fundamental to the progress of science and academic freedom,’ stated Princeton scientist Edward Felten. ‘The recording industry’s interpretation of the DMCA would make scientific progress on this important topic illegal.’ . . . \\ “SDMI sponsored the ‘SDMI Public Challenge’ in September 2000, asking Netizens to try to break their favored watermark schemes, designed to control consumer access to digital music. When the scientists’ paper about their successful defeat of the watermarks, including one developed by a company called Verance, was accepted for publication, Matt Oppenheim, an officer of both RIAA and SDMI, sent the Princeton professor a letter threatening legal liability if the scientist published his results.” “EFF Media Release: Princeton Scientists Sue Over Squelched Research,” available at http://w2.eff.org/IP/DMCA/Felten_v_RIAA/20010606_eff_felten_pr.html. After a First Amendment challenge to the relevant provisions of the DMCA, the threats were withdrawn.}~ I would not have thought that one could patent the idea of having an electronic Dutch auction on the Internet, working out the daily prices of a bundle of mutual funds through simple arithmetic, or buying something online with one click.~{See, e.g., Robert P. Merges, “As Many as Six Impossible Patents before Breakfast: Property Rights for Business Concepts and Patent System Reform,” Berkeley Technology Law Journal 14 (1999): 615.}~ I would have assumed that celebrities’ rights to control their images should end with their deaths, and that courts would agree that those rights were tightly limited by the First Amendment. Yet, in each of these cases, I would have been wrong, or at least I might be wrong—enough that a sane person would worry. Not all of the expansive claims eventually triumphed, of course, but some did. Guessing which would and which would not was hard even for me, though, as I said, I teach intellectual property law. You, probably, do not. In 1950 none of this would have mattered. Unless you were in some related business—as a publisher, broadcaster, film distributor, or what have you—it would have been hard for you to trigger the rules of intellectual property law. If you were in such a business, you were probably very familiar with the rules that governed your activities and well represented by corporate counsel who knew them even better. What’s more, the rules were neither as complex nor as counterintuitive as they are now. They also did not reach as far. The reach of the rights has been expanded, and their content made more difficult to understand, at the exact moment that their practical effect has been transformed. It is not merely that the triggers of intellectual property law can easily be set off by individual footsteps. There are now many more triggers and their trip wires are harder to see. @@ -1090,7 +1088,7 @@ According to the overwhelming majority of sources, “I Got a Woman” stems fro _1 Musically, soul denotes styles performed by and for black audiences according to past musical practices reinterpreted and redefined. During its development, three performers played significant roles in shaping its sound, messages, and performance practice: Ray Charles, James Brown, and Aretha Franklin. If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded “My Jesus Is All the World to Me,” changing its text to “I Got A Woman.”~{Robert W. Stephens, “Soul: A Historical Reconstruction of Continuity and Change in Black Popular Music,” The Black Perspective in Music 12, no. 1 (Spring 1984): 32.}~ -That story is repeated in the biography on Charles’s Web site. “Charles reworded the gospel tune ‘Jesus Is All the World to Me’ adding deep church inflections to the secular rhythms of the nightclubs, and the world was never the same.”~{Forever Ray, available at http://www.raycharles.com/the_man_biography.html. }~ Michael Lydon, Charles’s most impressive biographer, simply reports that “Jesus Is All the World to Me” is described as the song’s origin in another published source,~{Michael Lydon, Ray Charles (New York: Routledge, 2004), 419: “Arnold Shaw, in The Rockin’ 50’s says that ‘I Got a Woman’ is based on Jesus is All the World to Me. Because Renald Richard left Ray’s band before the song was recorded, he was not at first properly credited: some record labels list [Ray Charles] alone as the songwriter. Richard, however, straightened that out with Atlantic, and he has for many years earned a substantial income from his royalties.”}~ and this origin is cited repeatedly elsewhere in books, newspaper articles, and online,~{See Stephens, “Soul,” 32. The standard biographical literature also repeats the same story:
In 1954 an historic recording session with Atlantic records fused gospel with rhythm-and-blues and established Charles’ “sweet new style” in American music. One number recorded at that session was destined to become his first great success. Secularizing the gospel hymn “My Jesus Is All the World to Me,” Charles employed the 8- and 16-measure forms of gospel music, in conjunction with the 12-measure form of standard blues. Charles contended that his invention of soul music resulted from the heightening of the intensity of the emotion expressed by jazz through the charging of feeling in the unbridled way of gospel.
“Ray Charles,” Encyclopedia of World Biography, 2nd ed., vol. 3 (Detroit, Mich.: Gale Research, 1998), 469. Popular accounts offer the same story:
This young, blind, black, gravelly-voiced singer brought together the most engaging aspects of black music into one form and began the process of synthesis that led to soul and, ultimately, funk a decade later. He would turn around gospel standards like “My Jesus Is All the World to Me,” recreating it as “I Got a Woman[.]”
Ricky Vincent, Funk: The Music, The People, and the Rhythm of the One (New York: St. Martin’s Griffin, 1996), 121. See also Joel Hirschhorn, The Complete Idiot’s Guide to Songwriting (New York: Alpha Books, 2004), 108: “I Got a Woman was Ray’s rewrite of ‘My Jesus Is All the World to Me.’ ”
Charles himself was more equivocal about the origins of the song:
So I was lucky. Lucky to have my own band at this point in my career. Lucky to be able to construct my musical building to my exact specifications. And lucky in another way: While I was stomping around New Orleans, I had met a trumpeter named Renolds [sic] Richard who by thus time was in my band. One day he brought me some words to a song. I dressed them up a little and put them to music. The tune was called “I Got a Woman,” and it was another of those spirituals which I refashioned in my own way. I Got a Woman was my first real smash, much bigger than [“]Baby Let Me Hold Your Hand[.]” This spiritual-and-blues combination of mine was starting to hit.
Charles and Ritz, Brother Ray, 150.}~ though the most detailed accounts also mention Renald Richard, Charles’s trumpeter, who is credited with co-writing the song.~{See Lydon, Ray Charles, 419.}~ +That story is repeated in the biography on Charles’s Web site. “Charles reworded the gospel tune ‘Jesus Is All the World to Me’ adding deep church inflections to the secular rhythms of the nightclubs, and the world was never the same.”~{Forever Ray, available at http://www.raycharles.com/the_man_biography.html. }~ Michael Lydon, Charles’s most impressive biographer, simply reports that “Jesus Is All the World to Me” is described as the song’s origin in another published source,~{Michael Lydon, Ray Charles (New York: Routledge, 2004), 419: “Arnold Shaw, in The Rockin’ 50’s says that ‘I Got a Woman’ is based on Jesus is All the World to Me. Because Renald Richard left Ray’s band before the song was recorded, he was not at first properly credited: some record labels list [Ray Charles] alone as the songwriter. Richard, however, straightened that out with Atlantic, and he has for many years earned a substantial income from his royalties.”}~ and this origin is cited repeatedly elsewhere in books, newspaper articles, and online,~{See Stephens, “Soul,” 32. The standard biographical literature also repeats the same story: \\ In 1954 an historic recording session with Atlantic records fused gospel with rhythm-and-blues and established Charles’ “sweet new style” in American music. One number recorded at that session was destined to become his first great success. Secularizing the gospel hymn “My Jesus Is All the World to Me,” Charles employed the 8- and 16-measure forms of gospel music, in conjunction with the 12-measure form of standard blues. Charles contended that his invention of soul music resulted from the heightening of the intensity of the emotion expressed by jazz through the charging of feeling in the unbridled way of gospel. \\ “Ray Charles,” Encyclopedia of World Biography, 2nd ed., vol. 3 (Detroit, Mich.: Gale Research, 1998), 469. Popular accounts offer the same story: \\ This young, blind, black, gravelly-voiced singer brought together the most engaging aspects of black music into one form and began the process of synthesis that led to soul and, ultimately, funk a decade later. He would turn around gospel standards like “My Jesus Is All the World to Me,” recreating it as “I Got a Woman[.]” \\ Ricky Vincent, Funk: The Music, The People, and the Rhythm of the One (New York: St. Martin’s Griffin, 1996), 121. See also Joel Hirschhorn, The Complete Idiot’s Guide to Songwriting (New York: Alpha Books, 2004), 108: “I Got a Woman was Ray’s rewrite of ‘My Jesus Is All the World to Me.’ ” \\ Charles himself was more equivocal about the origins of the song: \\ So I was lucky. Lucky to have my own band at this point in my career. Lucky to be able to construct my musical building to my exact specifications. And lucky in another way: While I was stomping around New Orleans, I had met a trumpeter named Renolds [sic] Richard who by thus time was in my band. One day he brought me some words to a song. I dressed them up a little and put them to music. The tune was called “I Got a Woman,” and it was another of those spirituals which I refashioned in my own way. I Got a Woman was my first real smash, much bigger than [“]Baby Let Me Hold Your Hand[.]” This spiritual-and-blues combination of mine was starting to hit. \\ Charles and Ritz, Brother Ray, 150.}~ though the most detailed accounts also mention Renald Richard, Charles’s trumpeter, who is credited with co-writing the song.~{See Lydon, Ray Charles, 419.}~ To secular ears, “Jesus Is All the World to Me” is a plodding piece of music with a mechanical, up-and-down melodic structure. It conjures up a bored (and white) church audience, trudging through the verses, a semitone flat, while thinking about Sunday lunch rather than salvation. It is about as far removed as one could be from the syncopated beat and amorous subject matter of “I Got a Woman.” The hymn was the product of Will Lamartine Thompson—a severe-looking fellow with a faint resemblance to an elderly Doc Holliday—who died in 1909 and is buried in the same place he was born, East Liverpool, Ohio. But the words have an earnestness to them that gives life to the otherwise uninspired verse. @@ -1151,7 +1149,7 @@ This stage of Charles’s career is described, rightly, hy and sensual style tha The connection is striking: two very recent gospel songs, probably by the same author, from which Charles copies the melody, structure, pattern of verses, even most of the title—in each case substituting a beloved sensual woman for the beloved deity. Many others have noticed just how closely Charles based his songs on gospel tunes, although the prevalence of the story that “I Got a Woman” is derived from an early-twentieth-century hymn caused most to see only the second transposition, not the first.~{“If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded ‘My Jesus Is All the World to Me,’ changing its text to ‘I Got A Woman.’ The following year, he changed Clara Ward’s ‘This Little Light of Mine’ to ‘This Little Girl of Mine.’ ” Stephens, “Soul,” 32.}~ Borrowing from a fifty-year-old hymn and changing it substantially in the process seems a little different from the repeated process of “search and replace” musical collage that Charles performed on the contemporary works of Clara Ward. -If I am right, Charles’s “merger” of gospel and blues relied on a very direct process of transposition. The transposition was not just of themes: passion for woman substituted for passion for God. That is a familiar aspect of soul.~{Robert Lashley, “Why Ray Charles Matters,” Blogcritics Magazine, December 17, 2005, http://blogcritics.org/archives/2005/12/17/032826.php:
But it was the staggering, nearly byzantine ambition that encompassed Charles’ musical mind which is the foundation for his art. You can hear it in his first imprint on the pop music world, 1955’s I Got A Woman. The shuffling big beat borrows from Louis Jordan’s big band fusion, the backbeat is 2/4 gospel. The arrangement is lucid, not quite jazz, not quite blues, definitely not rock and roll but something sophisticated altogether. The emotions are feral, but not quite the primitiveness of rock and roll. It is the sound of life, a place where there is an ever flowing river of cool. It, you might ask? Rhythm and Blues, Ray Charles’ invention.
A volcano bubbling under the surface, Ray spent the mid 50’s crafting timeless songs as if there were cars on an assembly[.] Start with the blasphemous fusion of Hallelujah I [L]ove Her So and This Little Girl of Mine, where Ray changes the words from loving god to loving a woman, yet, in the intensity of his performance, raises the question if he’s still loving the same thing.
The anonymous encyclopedists at Wikipedia agree:
Many of the most prominent soul artists, such as Aretha Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in the church and gospel music and brought with them much of the vocal styles of artists such as Clara Ward and Julius Cheeks. Secular songwriters often appropriated gospel songs, such as the Pilgrim Travelers’ song “I’ve Got A New Home,” which Ray Charles turned into “Lonely Avenue,” or “Stand By Me,” which Ben E. King and Lieber and Stoller adapted from a well-known gospel song, or Marvin Gaye’s “Can I Get A Witness,” which reworks traditional gospel catchphrases. In other cases secular musicians did the opposite, attaching phrases and titles from the gospel tradition to secular songs to create soul hits such as “Come See About Me” for the Supremes and “99½ Won’t Do” for Wilson Pickett.
“Urban Contemporary Gospel,” Wikipedia, http://en.wikipedia.org/wiki/urban_contemporary_gospel. }~ It is what allows it to draw so easily from gospel’s fieriness and yet coat the religion with a distinctly more worldly passion. Sex, sin, and syncopation—what more could one ask? But Charles’s genius was to take particular songs that had already proved themselves in the church and on the radio, and to grab large chunks of the melody and structure. He was not just copying themes, or merging genres, he was copying the melodies and words from recent songs. +If I am right, Charles’s “merger” of gospel and blues relied on a very direct process of transposition. The transposition was not just of themes: passion for woman substituted for passion for God. That is a familiar aspect of soul.~{Robert Lashley, “Why Ray Charles Matters,” Blogcritics Magazine, December 17, 2005, http://blogcritics.org/archives/2005/12/17/032826.php: \\ But it was the staggering, nearly byzantine ambition that encompassed Charles’ musical mind which is the foundation for his art. You can hear it in his first imprint on the pop music world, 1955’s I Got A Woman. The shuffling big beat borrows from Louis Jordan’s big band fusion, the backbeat is 2/4 gospel. The arrangement is lucid, not quite jazz, not quite blues, definitely not rock and roll but something sophisticated altogether. The emotions are feral, but not quite the primitiveness of rock and roll. It is the sound of life, a place where there is an ever flowing river of cool. It, you might ask? Rhythm and Blues, Ray Charles’ invention. \\ A volcano bubbling under the surface, Ray spent the mid 50’s crafting timeless songs as if there were cars on an assembly[.] Start with the blasphemous fusion of Hallelujah I [L]ove Her So and This Little Girl of Mine, where Ray changes the words from loving god to loving a woman, yet, in the intensity of his performance, raises the question if he’s still loving the same thing. \\ The anonymous encyclopedists at Wikipedia agree: \\ Many of the most prominent soul artists, such as Aretha Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in the church and gospel music and brought with them much of the vocal styles of artists such as Clara Ward and Julius Cheeks. Secular songwriters often appropriated gospel songs, such as the Pilgrim Travelers’ song “I’ve Got A New Home,” which Ray Charles turned into “Lonely Avenue,” or “Stand By Me,” which Ben E. King and Lieber and Stoller adapted from a well-known gospel song, or Marvin Gaye’s “Can I Get A Witness,” which reworks traditional gospel catchphrases. In other cases secular musicians did the opposite, attaching phrases and titles from the gospel tradition to secular songs to create soul hits such as “Come See About Me” for the Supremes and “99½ Won’t Do” for Wilson Pickett. \\ “Urban Contemporary Gospel,” Wikipedia, http://en.wikipedia.org/wiki/urban_contemporary_gospel. }~ It is what allows it to draw so easily from gospel’s fieriness and yet coat the religion with a distinctly more worldly passion. Sex, sin, and syncopation—what more could one ask? But Charles’s genius was to take particular songs that had already proved themselves in the church and on the radio, and to grab large chunks of the melody and structure. He was not just copying themes, or merging genres, he was copying the melodies and words from recent songs. Was this mere musical plagiarism, then? Should we think less of Ray Charles’s genius because we find just how closely two of the canonical songs in the creation of soul were based on the work of his contemporaries? Hardly. “I Got a Woman” and “This Little Girl of Mine” are simply brilliant. Charles does in fact span the worlds of the nightclub at 3 a.m. on Sunday morning and the church later that day, of ecstatic testimony and good old-fashioned sexual infatuation. But the way he does so is a lot more like welding, or bricolage, than it is like designing out of nothing or creating anew while distantly tugged by mysterious musical forces called “themes” or “genres.” Charles takes bits that have been proven to work and combines them to make something new. When I tell engineers or software engineers this story, they nod. Of course that is how creation works. One does not reinvent the wheel, or the method of debugging, so why should one reinvent the hook, the riff, or the melody? And yet Charles’s creation does not have the degraded artistic quality that is associated with “mere” cut-and-paste or collage techniques. The combination is greater than the sum of its parts. If Charles’s songs do not fit our model of innovative artistic creativity, perhaps we need to revise the model—at least for music—rather than devaluing his work. diff --git a/data/v3/samples/the_wealth_of_networks.yochai_benkler.sst b/data/v3/samples/the_wealth_of_networks.yochai_benkler.sst index 13cdf9b..d90f1e1 100644 --- a/data/v3/samples/the_wealth_of_networks.yochai_benkler.sst +++ b/data/v3/samples/the_wealth_of_networks.yochai_benkler.sst @@ -7,53 +7,43 @@ @creator: :author: Benkler, Yochai +@date: + :published: 2006-04-03 + :created: 2006-04-03 + :issued: 2006-04-03 + :available: 2006-04-03 + :modified: 2006-04-03 + :valid: 2006-04-03 + +@rights: + :copyright: Copyright (C) 2006 Yochai Benkler. + :license: All rights reserved. Subject to the exception immediately following, this book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. http://creativecommons.org/licenses/by-nc-sa/2.5/ The author has made an online version of the book available under a Creative Commons Noncommercial Sharealike license; it can be accessed through the author's website at http://www.benkler.org. + @classify: - :type: Book :topic_register: SiSU:markup sample:book;networks;Internet;intellectual property:patents|copyright;economics;society;copyright;patents;book:subject:information society|information networks|economics|public policy|society|copyright|patents + :type: Book :isbn: 9780300110562 :oclc: 61881089 % :isbn: 0300110561 -@rights: - :copyright: Copyright (C) 2006 Yochai Benkler. - :license: All rights reserved. Subject to the exception immediately following, this book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. http://creativecommons.org/licenses/by-nc-sa/2.5/ The author has made an online version of the book available under a Creative Commons Noncommercial Sharealike license; it can be accessed through the author's website at http://www.benkler.org. - % STRANGE FRUIT By Lewis Allan 1939 (Renewed) by Music Sales Corporation (ASCAP) International copyright secured. All rights reserved. All rights outside the United States controlled by Edward B. Marks Music Company. Reprinted by permission. -@date: - :published: 2006-04-03 - :created: 2006-04-03 - :issued: 2006-04-03 - :available: 2006-04-03 - :modified: 2006-04-03 - :valid: 2006-04-03 - % :created: 2006-01-27 +@links: + { The Wealth of Networks, dedicated wiki }http://cyber.law.harvard.edu/wealth_of_networks/Main_Page + { Yochai Benkler, wiki }http://www.benkler.org/wealth_of_networks/index.php/Main_Page + { @ Wikipedia}http://en.wikipedia.org/wiki/The_Wealth_of_Networks + { WoN @ Amazon.com }http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0300110561/ + { WoN @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0300110561 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ + @make: :skin: skin_won_benkler :breaks: new=:B; break=1 -@links: - {The Wealth of Networks, dedicated wiki}http://cyber.law.harvard.edu/wealth_of_networks/Main_Page - {Yochai Benkler, wiki}http://www.benkler.org/wealth_of_networks/index.php/Main_Page - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {@ Wikipedia}http://en.wikipedia.org/wiki/The_Wealth_of_Networks - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow - {WoN @ Amazon.com}http://www.amazon.com/Wealth-Networks-Production-Transforms-Markets/dp/0300110561/ - {WoN @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=0300110561 - :A~ @title @author 1~attribution Attribution~# @@ -91,7 +81,7 @@ A series of changes in the technologies, economic organization, and social pract The rise of greater scope for individual and cooperative nonmarket production of information and culture, however, threatens the incumbents of the industrial information economy. At the beginning of the twenty-first century, we find ourselves in the midst of a battle over the institutional ecology of the digital environment. A wide range of laws and institutions-- from broad areas like telecommunications, copyright, or international trade regulation, to minutiae like the rules for registering domain names or whether digital television receivers will be required by law to recognize a particular code--are being tugged and warped in efforts to tilt the playing field toward one way of doing things or the other. How these battles turn out over the next decade or so will likely have a significant effect on how we come to know what is going on in the world we occupy, and to what extent and in what forms we will be able--as autonomous individuals, as citizens, and as participants in cultures and communities--to affect how we and others see the world as it is and as it might be. 2~ THE EMERGENCE OF THE NETWORKED INFORMATION ECONOMY -={information economy:emergence of+9;networked information economy+52|emergence of+9} +={information economy:emergence of+9;networked information economy+52:emergence of+9} The most advanced economies in the world today have made two parallel shifts that, paradoxically, make possible a significant attenuation of the limitations that market-based production places on the pursuit of the political ,{[pg 3]}, values central to liberal societies. The first move, in the making for more than a century, is to an economy centered on information (financial services, accounting, software, science) and cultural (films, music) production, and the manipulation of symbols (from making sneakers to branding them and manufacturing the cultural significance of the Swoosh). The second is the move to a communications environment built on cheap processors with high computation capabilities, interconnected in a pervasive network--the phenomenon we associate with the Internet. It is this second shift that allows for an increasing role for nonmarket production in the information and cultural production sector, organized in a radically more decentralized pattern than was true of this sector in the twentieth century. The first shift means that these new patterns of production--nonmarket and radically decentralized--will emerge, if permitted, at the core, rather than the periphery of the most advanced economies. It promises to enable social production and exchange to play a much larger role, alongside property- and marketbased production, than they ever have in modern democracies. ={nonmarket information producers+4;physical constraints on information production+2;production of information:physical constraints on+2} diff --git a/data/v3/samples/two_bits.christopher_kelty.sst b/data/v3/samples/two_bits.christopher_kelty.sst index 1cff4f9..c27ca8b 100644 --- a/data/v3/samples/two_bits.christopher_kelty.sst +++ b/data/v3/samples/two_bits.christopher_kelty.sst @@ -6,9 +6,12 @@ @creator: :author: Kelty, Christopher M. +@date: + :published: 2008 + @rights: - :copyright: © 2008 Duke University Press
Printed in the United States of America on acid-free paper ∞
Designed by C. H. Westmoreland
Typeset in Charis (an Open Source font) by Achorn International
Library of Congress Cataloging-in-Publication data and republication acknowledgments appear on the last printed pages of this book. - :license: Licensed under the Creative Commons Attribution-NonCommercial-Share Alike License, available at http://creativecommons.org/licenses/by-nc-sa/3.0/ or by mail from Creative Commons, 559 Nathan Abbott Way, Stanford, Calif. 94305, U.S.A. "NonCommercial" as defined in this license specifically excludes any sale of this work or any portion thereof for money, even if sale does not result in a profit by the seller or if the sale is by a 501(c)(3) nonprofit or NGO.
Duke University Press gratefully acknowledges the support of HASTAC (Humanities, Arts, Science, and Technology Advanced Collaboratory), which provided funds to help support the electronic interface of this book.
Two Bits is accessible on the Web at twobits.net. + :copyright: © 2008 Duke University Press \\ Printed in the United States of America on acid-free paper ∞ \\ Designed by C. H. Westmoreland \\ Typeset in Charis (an Open Source font) by Achorn International \\ Library of Congress Cataloging-in-Publication data and republication acknowledgments appear on the last printed pages of this book. + :license: Licensed under the Creative Commons Attribution-NonCommercial-Share Alike License, available at http://creativecommons.org/licenses/by-nc-sa/3.0/ or by mail from Creative Commons, 559 Nathan Abbott Way, Stanford, Calif. 94305, U.S.A. "NonCommercial" as defined in this license specifically excludes any sale of this work or any portion thereof for money, even if sale does not result in a profit by the seller or if the sale is by a 501(c)(3) nonprofit or NGO. \\ Duke University Press gratefully acknowledges the support of HASTAC (Humanities, Arts, Science, and Technology Advanced Collaboratory), which provided funds to help support the electronic interface of this book. \\ Two Bits is accessible on the Web at twobits.net. @classify: :topic_register: open source software:social aspects;software:development:geeks;anthropology:geeks;book:subject:anthropology|information society|geeks;society;programming;society:information society; @@ -16,28 +19,19 @@ % :isbn: 978082234264-9 -@date: 2008 +@links: + { Two Bits home page }http://twobits.net/ + { Christopher M. Kelty }http://kelty.org/ + { Two Bits @ Amazon.com }http://www.amazon.com/Two-Bits-Cultural-Significance-Software/dp/0822342642 + { Two Bits @ Barnes & Noble }http://search.barnesandnoble.com/Two-Bits/Christopher-M-Kelty/e/9780822342649 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ @make: :skin: skin_2bits :breaks: new=:C; break=1 :italics: /Two Bits/i -@links: - {Two Bits, Christopher Kelty: home page}http://twobits.net/ - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {Two Bits @ Amazon.com}http://www.amazon.com/Two-Bits-Cultural-Significance-Software/dp/0822342642 - {Two Bits @ Barnes & Noble}http://search.barnesandnoble.com/Two-Bits/Christopher-M-Kelty/e/9780822342649 - :A~ @title @author 1~dedication Dedication @@ -1175,7 +1169,7 @@ Minix became as widely used in the 1980s as a teaching tool as Lions’s source ={ontology:of UNIX operating system} Minix was not commercial software, but nor was it Free Software. It was copyrighted and controlled by Tanenbaum’s publisher, Prentice Hall. Because it used no AT&T source code, Minix was also legally independent, a legal object of its own. The fact that it was intended to be legally distinct from, yet conceptually true to UNIX is a clear indication of the kinds of tensions that govern the creation and sharing of source code. The ironic apotheosis of Minix as the pedagogical gold standard for studying UNIX came in 1991-92, when a young Linus Torvalds created a "fork" of Minix, also rewritten from scratch, that would go on to become the paradigmatic piece of Free Software: Linux. Tanenbaum’s purpose for Minix was that it remain a pedagogically useful operating system—small, concise, and illustrative—whereas Torvalds wanted to extend and expand his version of Minix to take full advantage of the kinds of hardware being produced in the 1990s. Both, however, were committed to source-code visibility and sharing as the swiftest route to complete comprehension of operating-systems principles. -={Linux (Free Software project)|origins in Minix} +={Linux (Free Software project):origins in Minix} 2~ Forking UNIX ={forking+13} @@ -1605,7 +1599,7 @@ Stallman’s communal model could not completely prevent the porting and forking 2~ The Controversy In brief the controversy was this: in 1983 James Gosling decided to sell his version of EMACS—a version written in C for UNIX called GOSMACS—to a commercial software vendor called Unipress. GOSMACS, the second most famous implementation of EMACS (after Stallman’s itself ), was written when Gosling was a graduate student at Carnegie Mellon University. For years, Gosling had distributed GOSMACS by himself and had run a mailing list on Usenet, on which he answered queries and discussed extensions. Gosling had explicitly asked people not to redistribute the program, but to come back to him (or send interested parties to him directly) for new versions, making GOSMACS more of a benevolent dictatorship than a commune. Gosling maintained his authority, but graciously accepted revisions and bug-fixes and extensions from users, incorporating them into new releases. Stallman’s system, by contrast, allowed users to distribute their extensions themselves, as well as have them included in the "official" EMACS. By 1983, Gosling had decided he was unable to effectively maintain and support GOSMACS—a task he considered the proper role of a corporation. -={Gosling, James+64|GOSMACS (version of EMACS)+41;Unipress+41} +={Gosling, James+64;GOSMACS (version of EMACS)+41;Unipress+41} % ,{[pg 189]}, @@ -1669,7 +1663,7 @@ Why I Must Write GNU }group -At that point, it is clear, there was no "free software license." There was the word free, but not the term public domain. There was the "golden rule," and there was a resistance to nondisclosure and license arrangements in general, but certainly no articulated conception of copyleft of Free Software as a legally distinct entity. And yet Stallman hardly intended to "abandon it" to the public domain, as Gosling suggested. Instead, Stallman likely intended to require the same EMACS commune rules to apply to Free Software, rules that he would be able to control largely by overseeing (in a nonlegal sense) who was sent or sold what and by demanding (in the form of messages attached to the software) that any modifications or improvements come in the form of donations. It was during the period 1983-85 that the EMACS commune morphed into the GPL, as Stallman began adding copyrights and appending messages that made explicit what people could do with the software.~{ Various other people seem to have conceived of a similar scheme around the same time (if the Usenet archives are any guide), including Guido Van Rossum (who would later become famous for the creation of the Python scripting language). The following is from Message-ID: 5568@mcvax.uucp:
/* This software is copyright (c) Mathematical Centre, Amsterdam,
* 1983.
* Permission is granted to use and copy this software, but not for * profit,
* and provided that these same conditions are imposed on any person
* receiving or using the software.
*/ }~ +At that point, it is clear, there was no "free software license." There was the word free, but not the term public domain. There was the "golden rule," and there was a resistance to nondisclosure and license arrangements in general, but certainly no articulated conception of copyleft of Free Software as a legally distinct entity. And yet Stallman hardly intended to "abandon it" to the public domain, as Gosling suggested. Instead, Stallman likely intended to require the same EMACS commune rules to apply to Free Software, rules that he would be able to control largely by overseeing (in a nonlegal sense) who was sent or sold what and by demanding (in the form of messages attached to the software) that any modifications or improvements come in the form of donations. It was during the period 1983-85 that the EMACS commune morphed into the GPL, as Stallman began adding copyrights and appending messages that made explicit what people could do with the software.~{ Various other people seem to have conceived of a similar scheme around the same time (if the Usenet archives are any guide), including Guido Van Rossum (who would later become famous for the creation of the Python scripting language). The following is from Message-ID: 5568@mcvax.uucp: \\ /* This software is copyright (c) Mathematical Centre, Amsterdam, \\ * 1983. \\ * Permission is granted to use and copy this software, but not for * profit, \\ * and provided that these same conditions are imposed on any person \\ * receiving or using the software. \\ */ }~ ={EMACS commune} The GNU project initially received little attention, however; scattered messages to net.unix-wizards over the course of 1983-84 periodically ask about the status and how to contact them, often in the context of discussions of AT&T UNIX licensing practices that were unfolding as UNIX was divested and began to market its own version of UNIX.~{ For example, Message-ID: { 6818@brl-tgr.arpa }http://groups.google.com/groups?selm=6818@brl-tgr.arpa. }~ Stallman’s original plan for GNU was to start with the core operating system, the kernel, but his extensive work on EMACS and the sudden need for a free EMACS for UNIX led him to start with a UNIX version of EMACS. In 1984 and into 1985, he and others began work on a UNIX version of GNU EMACS. The two commercial versions of UNIX EMACS (CCA EMACS and Unipress EMACS) continued to circulate and improve in parallel. DEC users meanwhile used the original free version created by Stallman. And, as often happens, life went on: Zimmerman left CCA in August ,{[pg 193]}, 1984, and Gosling moved to Sun, neither of them remaining closely involved in the software they had created, but leaving the new owners to do so. @@ -2555,7 +2549,7 @@ _1 We anticipate that the phrase "as appropriate to the medium, genre, and marke _1 This sort of deference to community values—think of it as "punting to culture"—is very common in everyday business and contract law. The idea is that when lawyers have trouble defining the specialized terms of certain subcultures, they should get out of the way and let those subcultures work them out. It’s probably not a surprise Creative Commons likes this sort of notion a lot.~{ Message from the cc-sampling mailing list, Glenn Brown, Subject: BACKGROUND: "AS APPROPRIATE TO THE MEDIUM, GENRE, AND MARKET NICHE," 23 May 2003, http://lists.ibiblio.org/pipermail/cc-sampling/2003-May/000004.html. }~ -As in the case of reuse in Connexions, sampling in the music world can imply a number of different, perhaps overlapping, customary meanings of what is acceptable and what is not. For Connexions, the trick was to differentiate the cases wherein collaboration should be encouraged from the cases wherein the legal right to "sample"—to fork or to create a derived work—was the appropriate course of action. For Creative Commons, the very structure of the licenses attempts to capture this distinction as such and to allow for individuals to make determinations about the meaning of sampling themselves.~{ Sampling offers a particularly clear example of how Creative Commons differs from the existing practice and infrastructure of music creation and intellectual-property law. The music industry has actually long recognized the fact of sampling as something musicians do and has attempted to deal with it by making it an explicit economic practice; the music industry thus encourages sampling by facilitating the sale between labels and artists of rights to make a sample. Record companies will negotiate prices, lengths, quality, and quantity of sampling and settle on a price.
This practice is set opposite the assumption, also codified in law, that the public has a right to a fair use of copyrighted material without payment or permission. Sampling a piece of music might seem to fall into this category of use, except that one of the tests of fair use is that the use not impact any existing market for such uses, and the fact that the music industry has effectively created a market for the buying and selling of samples means that sampling now routinely falls outside the fair uses codified in the statute, thus removing sampling from the domain of fair use. Creative Commons licenses, on the other hand, say that owners should be able to designate their material as "sample-able," to give permission ahead of time, and by this practice to encourage others to do the same. They give an "honorable" meaning to the practice of sampling for free, rather than the dishonorable one created by the industry. It thus becomes a war over the meaning of norms, in the law-and-economics language of Creative Commons and its founders. }~ +As in the case of reuse in Connexions, sampling in the music world can imply a number of different, perhaps overlapping, customary meanings of what is acceptable and what is not. For Connexions, the trick was to differentiate the cases wherein collaboration should be encouraged from the cases wherein the legal right to "sample"—to fork or to create a derived work—was the appropriate course of action. For Creative Commons, the very structure of the licenses attempts to capture this distinction as such and to allow for individuals to make determinations about the meaning of sampling themselves.~{ Sampling offers a particularly clear example of how Creative Commons differs from the existing practice and infrastructure of music creation and intellectual-property law. The music industry has actually long recognized the fact of sampling as something musicians do and has attempted to deal with it by making it an explicit economic practice; the music industry thus encourages sampling by facilitating the sale between labels and artists of rights to make a sample. Record companies will negotiate prices, lengths, quality, and quantity of sampling and settle on a price. \\ This practice is set opposite the assumption, also codified in law, that the public has a right to a fair use of copyrighted material without payment or permission. Sampling a piece of music might seem to fall into this category of use, except that one of the tests of fair use is that the use not impact any existing market for such uses, and the fact that the music industry has effectively created a market for the buying and selling of samples means that sampling now routinely falls outside the fair uses codified in the statute, thus removing sampling from the domain of fair use. Creative Commons licenses, on the other hand, say that owners should be able to designate their material as "sample-able," to give permission ahead of time, and by this practice to encourage others to do the same. They give an "honorable" meaning to the practice of sampling for free, rather than the dishonorable one created by the industry. It thus becomes a war over the meaning of norms, in the law-and-economics language of Creative Commons and its founders. }~ At stake, then, is the construction of both technologies and legal licenses that, as Brent and Rich would assert, "make it easy for users to do the right thing." The "right thing," however, is precisely what goes unstated: the moral and technical order that guides the design of both licenses and tools. Connexions users are given tools that facilitate citation, acknowledgment, attribution, and certain kinds of reuse instead of tools that privilege anonymity or facilitate proliferation or encourage nonreciprocal collaborations. By the same token, Creative Commons licenses, while legally binding, are created with the aim of changing norms: they promote attribution and citation; they promote fair use and clearly designated uses; they are written to give users flexibility to decide what kinds of things should be allowed and what kinds shouldn’t. Without a doubt, the "right thing" is right for some people and not for others—and it is thus political. But the criteria for what is right are not ,{[pg 300]}, merely political; the criteria are what constitute the affinity of these geeks in the first place, what makes them a recursive public. They see in these instruments the possibility for the creation of authentic publics whose role is to stand outside power, outside markets, and to participate in sovereignty, and through this participation to produce liberty without sacrificing stability. ={Baraniuk, Richard;Hendricks, Brent;affinity (of geeks);fair use;moral and technical order;recursive public} diff --git a/data/v3/samples/un_contracts_international_sale_of_goods_convention_1980.sst b/data/v3/samples/un_contracts_international_sale_of_goods_convention_1980.sst index 392f21f..884f769 100644 --- a/data/v3/samples/un_contracts_international_sale_of_goods_convention_1980.sst +++ b/data/v3/samples/un_contracts_international_sale_of_goods_convention_1980.sst @@ -9,21 +9,19 @@ @original: :source: UNCITRAL, United Nations +@date: + :published: 1980 + @classify: :subject: UNCITRAL, United Nations, sale of goods :topic_register: SiSU:markup sample:convention;law:international:uniform law|sales law|CISG;CISG :keywords: UNCITRAL, United Nations, sale of goods :type: convention, international sales, sale of goods, UNCITRAL, United Nations -@date: - :published: 1980 - @make: :headings: PART; Chapter; Section; Article; - :skin: skin_sisu :breaks: new=:A,:B; break=:C - -@links: { Syntax }http://www.jus.uio.no/sisu/sample/syntax/un_contracts_international_sale_of_goods_convention_1980.sst.html + :skin: skin_sisu :A~ United Nations Convention On Contracts For The International Sale Of Goods, 1980 (CISG) diff --git a/data/v3/samples/viral_spiral.david_bollier.sst b/data/v3/samples/viral_spiral.david_bollier.sst index 0f98794..062aa23 100644 --- a/data/v3/samples/viral_spiral.david_bollier.sst +++ b/data/v3/samples/viral_spiral.david_bollier.sst @@ -7,39 +7,31 @@ @creator: :author: Bollier, David -@classify: - :type: Book - :oclc: 227016731 - :topic_register: SiSU:markup sample:book;networks;Internet:social aspects|copyright|intellectual property;intellectual property:copyright|creative commons|patents|public domain;society:information society;copyright:creative commons|public domain|licenses;patents;book:subject:information society|information networks|society|copyright|creative commons|patents|culture;open source software:social aspects;software:free software|GPL|open source;license:GPL;programming;democracy;democratization;creative commons:organization;public domain:copyright law (U.S.);free culture;culture +@date: + :published: 2008 @rights: :copyright: © 2008 by David Bollier All rights reserved. No part of this book may be reproduced, in any form, without written permission from the publisher. The author has made an online version of the book available under a Creative Commons Attribution-NonCommercial license. It can be accessed at http://www.viralspiral.cc and http://www.onthecommons.org. Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 38 Greene Street, New York, NY 10013. Published in the United States by The New Press, New York, 2008 Distributed by W. W. Norton & Company, Inc., New York ISBN 978-1-59558-396-3 (hc.) CIP data available The New Press was established in 1990 as a not-for-profit alternative to the large, commercial publishing houses currently dominating the book publishing industry. The New Press operates in the public interest rather than for private gain, and is committed to publishing, in innovative ways, works of educational, cultural, and community value that are often deemed insufficiently profitable. www.thenewpress.com A Caravan book. For more information, visit www.caravanbooks.org. :license: Creative Commons Attribution-NonCommercial license. +@classify: + :topic_register: SiSU:markup sample:book;networks;Internet:social aspects|copyright|intellectual property;intellectual property:copyright|creative commons|patents|public domain;society:information society;copyright:creative commons|public domain|licenses;patents;book:subject:information society|information networks|society|copyright|creative commons|patents|culture;open source software:social aspects;software:free software|GPL|open source;license:GPL;programming;democracy;democratization;creative commons:organization;public domain:copyright law (U.S.);free culture;culture + :oclc: 227016731 + +@links: + { Viral Spiral }http://viralspiral.cc/ + { David Bollier }http://www.bollier.org/ + { David Bollier @ Wikipedia }http://en.wikipedia.org/wiki/David_Bollier + { Viral Spiral @ Amazon.com }http://www.amazon.com/Viral-Spiral-Commoners-Digital-Republic/dp/1595583963 + { Viral Spiral @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=1595583963 + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ + @make: :breaks: new=:B,C; break=1 :texpdf_font: Liberation Sans :skin: skin_vs_david_bollier -@links: - {Viral Spiral}http://viralspiral.cc/ - {David Bollier}http://www.bollier.org/ - {David Bollier @ Wikipedia}http://en.wikipedia.org/wiki/David_Bollier - {Viral Spiral, David Bollier@ SiSU}http://www.jus.uio.no/sisu/viral_spiral.david_bollier - {The Wealth of Networks, Yochai Benkler @ SiSU}http://www.jus.uio.no/sisu/the_wealth_of_networks.yochai_benkler - {Democratizing Innovation, Eric von Hippel @ SiSU}http://www.jus.uio.no/sisu/democratizing_innovation.eric_von_hippel - {Two Bits, Christopher Kelty @ SiSU}http://www.jus.uio.no/sisu/two_bits.christopher_kelty - {Free Culture, Lawrence Lessig @ SiSU}http://www.jus.uio.no/sisu/free_culture.lawrence_lessig - {CONTENT, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/content.cory_doctorow - {Free as in Freedom (on Richard M. Stallman), Sam Williams @ SiSU}http://www.jus.uio.no/sisu/free_as_in_freedom.richard_stallman_crusade_for_free_software.sam_williams - {Free For All, Peter Wayner @ SiSU}http://www.jus.uio.no/sisu/free_for_all.peter_wayner - {The Cathedral and the Bazaar, Eric S. Raymond @ SiSU }http://www.jus.uio.no/sisu/the_cathedral_and_the_bazaar.eric_s_raymond - {Down and Out in the Magic Kingdom, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/down_and_out_in_the_magic_kingdom.cory_doctorow - {Little Brother, Cory Doctorow @ SiSU}http://www.jus.uio.no/sisu/little_brother.cory_doctorow - {For the Win, Cory Doctorow @ SiSU }http://www.jus.uio.no/sisu/for_the_win.cory_doctorow - {Viral Spiral @ Amazon.com}http://www.amazon.com/Viral-Spiral-Commoners-Digital-Republic/dp/1595583963 - {Viral Spiral @ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=1595583963 - :A~ @title @author 1~attribution Attribution~# @@ -173,7 +165,7 @@ By the late 1990s, this legal scholarship was in full flower, Internet usage was ={GNU/Linux;Linux:see also GNU/Linux;Eldred v. Reno/Eldred v. Ashcroft} The immediate upshot of their legal and techno ingenuity, as we will see in chapters 3 and 4, was the drafting of the Creative Commons licenses and the organization that would promote them. The purpose of these free, standardized public licenses was, and is, to get beyond the binary choice imposed by copyright law. Why must a work be considered either a chunk of privately owned property or a kind of nonproperty completely open to anyone without constraint (“in the public domain”)? The CC licenses overcome this stifling either/or logic by articulating a new middle ground of ownership that sanctions sharing and collaboration under specified terms. To stress its difference from copyright law, which declares “All Rights Reserved,” the Creative Commons licenses bear the tagline “Some Rights Reserved.” -={Creative Commons (CC) licenses+2|copyright law, and+2;opyright law:CC licenses+2} +={Creative Commons (CC) licenses+2:copyright law, and+2;Copyright law:CC licenses+2} Like free software, the CC licenses paradoxically rely upon copyright law to legally protect the commons. The licenses use the rights of ownership granted by copyright law not to exclude others, but to invite them to share. The licenses recognize authors’ interests in owning and controlling their work — but they also recognize that new creativity owes many social and intergenerational debts. Creativity is not something that emanates solely from the mind of the “romantic author,” as copyright mythology has it; it also derives from artistic communities and previous generations of authors and artists. The CC licenses provide a legal means to allow works to circulate so that people can create something new. /{Share, reuse, and remix, legally}/, as Creative Commons puts it. -- cgit v1.2.3 From f762894652bcbc07f0400fef1be31a3b6321dfc0 Mon Sep 17 00:00:00 2001 From: Ralph Amissah Date: Wed, 12 Dec 2012 10:28:56 -0500 Subject: v3: added samples, updated manpage, COPYRIGHT & README * Alice's Adventures in Wonderland, Lewis Carroll (1865) * Through The Looking Glass, Lewis Carroll (1871) * Gulliver's Travels, Jonathan Swift (1776) --- ...ices_adventures_in_wonderland.lewis_carroll.sst | 1897 ++++++++++++++++ .../samples/gullivers_travels.jonathan_swift.sst | 1380 ++++++++++++ .../through_the_looking_glass.lewis_carroll.sst | 2347 ++++++++++++++++++++ 3 files changed, 5624 insertions(+) create mode 100644 data/v3/samples/alices_adventures_in_wonderland.lewis_carroll.sst create mode 100644 data/v3/samples/gullivers_travels.jonathan_swift.sst create mode 100644 data/v3/samples/through_the_looking_glass.lewis_carroll.sst (limited to 'data/v3') diff --git a/data/v3/samples/alices_adventures_in_wonderland.lewis_carroll.sst b/data/v3/samples/alices_adventures_in_wonderland.lewis_carroll.sst new file mode 100644 index 0000000..2dc7e96 --- /dev/null +++ b/data/v3/samples/alices_adventures_in_wonderland.lewis_carroll.sst @@ -0,0 +1,1897 @@ +% SiSU 0.72 + +@title: Alice's Adventures in Wonderland + +@creator: + :author: Carroll, Lewis + +@date: + :published: 1865 + :created: 1865 + :available: 1865 + :added_to_site: 2004-04-12 + +% 2005-10-30 + +@rights: + :copyright: Lewis Carroll + :license: Public Domain + +@classify: + :type: Book + :topic_register: SiSU:markup sample:book;book:novel:fantasy|children's fiction + +@links: + { @ Wikipedia }http://en.wikipedia.org/wiki/Alice%27s_Adventures_in_Wonderland + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ + +@make: + :headings: none; none; none; CHAPTER; + :breaks: new=3; break=4 + +:A~ @title @creator
The Millennium Fulcrum Edition 3.0 + +% :B~ Lewis Carroll + +% :C~ The Millennium Fulcrum Edition 3.0 + +CHAPTER I - Down the Rabbit-Hole + +Alice was beginning to get very tired of sitting by her sister on the bank, and of having nothing to do: once or twice she had peeped into the book her sister was reading, but it had no pictures or conversations in it, `and what is the use of a book,' thought Alice `without pictures or conversation?' + +So she was considering in her own mind (as well as she could, for the hot day made her feel very sleepy and stupid), whether the pleasure of making a daisy-chain would be worth the trouble of getting up and picking the daisies, when suddenly a White Rabbit with pink eyes ran close by her. + +There was nothing so VERY remarkable in that; nor did Alice think it so VERY much out of the way to hear the Rabbit say to itself, `Oh dear! Oh dear! I shall be late!' (when she thought it over afterwards, it occurred to her that she ought to have wondered at this, but at the time it all seemed quite natural); but when the Rabbit actually TOOK A WATCH OUT OF ITS WAISTCOAT- POCKET, and looked at it, and then hurried on, Alice started to her feet, for it flashed across her mind that she had never before seen a rabbit with either a waistcoat-pocket, or a watch to take out of it, and burning with curiosity, she ran across the field after it, and fortunately was just in time to see it pop down a large rabbit-hole under the hedge. + +In another moment down went Alice after it, never once considering how in the world she was to get out again. + +The rabbit-hole went straight on like a tunnel for some way, and then dipped suddenly down, so suddenly that Alice had not a moment to think about stopping herself before she found herself falling down a very deep well. + +Either the well was very deep, or she fell very slowly, for she had plenty of time as she went down to look about her and to wonder what was going to happen next. First, she tried to look down and make out what she was coming to, but it was too dark to see anything; then she looked at the sides of the well, and noticed that they were filled with cupboards and book-shelves; here and there she saw maps and pictures hung upon pegs. She took down a jar from one of the shelves as she passed; it was labelled `ORANGE MARMALADE', but to her great disappointment it was empty: she did not like to drop the jar for fear of killing somebody, so managed to put it into one of the cupboards as she fell +past it. + +`Well!' thought Alice to herself, `after such a fall as this, I shall think nothing of tumbling down stairs! How brave they'll all think me at home! Why, I wouldn't say anything about it, even if I fell off the top of the house!' (Which was very likely true.) + +Down, down, down. Would the fall NEVER come to an end! `I wonder how many miles I've fallen by this time?' she said aloud. `I must be getting somewhere near the centre of the earth. Let me see: that would be four thousand miles down, I think--' (for, you see, Alice had learnt several things of this sort in her lessons in the schoolroom, and though this was not a VERY good opportunity for showing off her knowledge, as there was no one to listen to her, still it was good practice to say it over) `--yes, that's about the right distance--but then I wonder what Latitude or Longitude I've got to?' (Alice had no idea what Latitude was, or Longitude either, but thought they were nice grand words to say.) + +Presently she began again. `I wonder if I shall fall right THROUGH the earth! How funny it'll seem to come out among the people that walk with their heads downward! The Antipathies, I think--' (she was rather glad there WAS no one listening, this time, as it didn't sound at all the right word) `--but I shall have to ask them what the name of the country is, you know. Please, Ma'am, is this New Zealand or Australia?' (and she tried to curtsey as she spoke--fancy CURTSEYING as you're falling through the air! Do you think you could manage it?) `And what an ignorant little girl she'll think me for asking! No, it'll never do to ask: perhaps I shall see it written up somewhere.' + +Down, down, down. There was nothing else to do, so Alice soon began talking again. `Dinah'll miss me very much to-night, I should think!' (Dinah was the cat.) `I hope they'll remember her saucer of milk at tea-time. Dinah my dear! I wish you were down here with me! There are no mice in the air, I'm afraid, but you might catch a bat, and that's very like a mouse, you know. But do cats eat bats, I wonder?' And here Alice began to get rather sleepy, and went on saying to herself, in a dreamy sort of way, `Do cats eat bats? Do cats eat bats?' and sometimes, `Do bats eat cats?' for, you see, as she couldn't answer either question, it didn't much matter which way she put it. She felt that she was dozing off, and had just begun to dream that she was walking hand in hand with Dinah, and saying to her very earnestly, `Now, Dinah, tell me the truth: did you ever eat a bat?' when suddenly, thump! thump! down she came upon a heap of sticks and dry leaves, and the fall was over. + +Alice was not a bit hurt, and she jumped up on to her feet in a moment: she looked up, but it was all dark overhead; before her was another long passage, and the White Rabbit was still in sight, hurrying down it. There was not a moment to be lost: away went Alice like the wind, and was just in time to hear it say, as it turned a corner, `Oh my ears and whiskers, how late it's getting!' She was close behind it when she turned the corner, but the Rabbit was no longer to be seen: she found herself in a long, low hall, which was lit up by a row of lamps hanging from the roof. + +There were doors all round the hall, but they were all locked; and when Alice had been all the way down one side and up the other, trying every door, she walked sadly down the middle, wondering how she was ever to get out again. + +Suddenly she came upon a little three-legged table, all made of solid glass; there was nothing on it except a tiny golden key, and Alice's first thought was that it might belong to one of the doors of the hall; but, alas! either the locks were too large, or the key was too small, but at any rate it would not open any of them. However, on the second time round, she came upon a low curtain she had not noticed before, and behind it was a little door about fifteen inches high: she tried the little golden key in the lock, and to her great delight it fitted! + +Alice opened the door and found that it led into a small passage, not much larger than a rat-hole: she knelt down and looked along the passage into the loveliest garden you ever saw. How she longed to get out of that dark hall, and wander about among those beds of bright flowers and those cool fountains, but she could not even get her head through the doorway; `and even if my head would go through,' thought poor Alice, `it would be of very little use without my shoulders. Oh, how I wish I could shut up like a telescope! I think I could, if I only know how to begin.' For, you see, so many out-of-the-way things had happened lately, that Alice had begun to think that very few things indeed were really impossible. + +There seemed to be no use in waiting by the little door, so she went back to the table, half hoping she might find another key on it, or at any rate a book of rules for shutting people up like telescopes: this time she found a little bottle on it, (`which certainly was not here before,' said Alice,) and round the neck of the bottle was a paper label, with the words `DRINK ME' beautifully printed on it in large letters. + +It was all very well to say `Drink me,' but the wise little Alice was not going to do THAT in a hurry. `No, I'll look first,' she said, `and see whether it's marked "poison" or not'; for she had read several nice little histories about children who had got burnt, and eaten up by wild beasts and other unpleasant things, all because they WOULD not remember the simple rules their friends had taught them: such as, that a red-hot poker will burn you if you hold it too long; and that if you cut your finger VERY deeply with a knife, it usually bleeds; and she had never forgotten that, if you drink much from a bottle marked `poison,' it is almost certain to disagree with you, sooner or later. + +However, this bottle was NOT marked `poison,' so Alice ventured to taste it, and finding it very nice, (it had, in fact, a sort of mixed flavour of cherry-tart, custard, pine-apple, roast turkey, toffee, and hot buttered toast,) she very soon finished it off. + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +`What a curious feeling!' said Alice; `I must be shutting up like a telescope.' + +And so it was indeed: she was now only ten inches high, and her face brightened up at the thought that she was now the right size for going through the little door into that lovely garden. First, however, she waited for a few minutes to see if she was going to shrink any further: she felt a little nervous about this; `for it might end, you know,' said Alice to herself, `in my going out altogether, like a candle. I wonder what I should be like then?' And she tried to fancy what the flame of a candle is like after the candle is blown out, for she could not remember ever having seen such a thing. + +After a while, finding that nothing more happened, she decided on going into the garden at once; but, alas for poor Alice! when she got to the door, she found she had forgotten the little golden key, and when she went back to the table for it, she found she could not possibly reach it: she could see it quite plainly through the glass, and she tried her best to climb up one of the legs of the table, but it was too slippery; and when she had tired herself out with trying, the poor little thing sat down and cried. + +`Come, there's no use in crying like that!' said Alice to herself, rather sharply; `I advise you to leave off this minute!' She generally gave herself very good advice, (though she very seldom followed it), and sometimes she scolded herself so severely as to bring tears into her eyes; and once she remembered trying to box her own ears for having cheated herself in a game of croquet she was playing against herself, for this curious child was very fond of pretending to be two people. `But it's no use now,' thought poor Alice, `to pretend to be two people! Why, there's hardly enough of me left to make ONE respectable person!' + +Soon her eye fell on a little glass box that was lying under the table: she opened it, and found in it a very small cake, on which the words `EAT ME' were beautifully marked in currants. `Well, I'll eat it,' said Alice, `and if it makes me grow larger, I can reach the key; and if it makes me grow smaller, I can creep under the door; so either way I'll get into the garden, and I don't care which happens!' + +She ate a little bit, and said anxiously to herself, `Which way? Which way?', holding her hand on the top of her head to feel which way it was growing, and she was quite surprised to find that she remained the same size: to be sure, this generally happens when one eats cake, but Alice had got so much into the way of expecting nothing but out-of-the-way things to happen, that it seemed quite dull and stupid for life to go on in the common way. + +So she set to work, and very soon finished off the cake. + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +CHAPTER II - The Pool of Tears + +`Curiouser and curiouser!' cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English); `now I'm opening out like the largest telescope that ever was! Good-bye, feet!' (for when she looked down at her feet, they seemed to be almost out of sight, they were getting so far off). `Oh, my poor little feet, I wonder who will put on your shoes and stockings for you now, dears? I'm sure _{I}_ shan't be able! I shall be a great deal too far off to trouble myself about you: you must manage the best way you can; --but I must be kind to them,' thought Alice, `or perhaps they won't walk the way I want to go! Let me see: I'll give them a new pair of boots every Christmas.' + +And she went on planning to herself how she would manage it. `They must go by the carrier,' she thought; `and how funny it'll seem, sending presents to one's own feet! And how odd the directions will look! + +poem{ + + ALICE'S RIGHT FOOT, ESQ. + HEARTHRUG, + NEAR THE FENDER, + (WITH ALICE'S LOVE). + +}poem + +Oh dear, what nonsense I'm talking!' + +Just then her head struck against the roof of the hall: in fact she was now more than nine feet high, and she at once took up the little golden key and hurried off to the garden door. + +Poor Alice! It was as much as she could do, lying down on one side, to look through into the garden with one eye; but to get through was more hopeless than ever: she sat down and began to cry again. + +`You ought to be ashamed of yourself,' said Alice, `a great girl like you,' (she might well say this), `to go on crying in this way! Stop this moment, I tell you!' But she went on all the same, shedding gallons of tears, until there was a large pool all round her, about four inches deep and reaching half down the hall. + +After a time she heard a little pattering of feet in the distance, and she hastily dried her eyes to see what was coming. It was the White Rabbit returning, splendidly dressed, with a pair of white kid gloves in one hand and a large fan in the other: he came trotting along in a great hurry, muttering to himself as he came, `Oh! the Duchess, the Duchess! Oh! won't she be savage if I've kept her waiting!' Alice felt so desperate that she was ready to ask help of any one; so, when the Rabbit came near her, she began, in a low, timid voice, `If you please, sir--' The Rabbit started violently, dropped the white kid gloves and the fan, and skurried away into the darkness as hard as he could go. + +Alice took up the fan and gloves, and, as the hall was very hot, she kept fanning herself all the time she went on talking: `Dear, dear! How queer everything is to-day! And yesterday things went on just as usual. I wonder if I've been changed in the night? Let me think: was I the same when I got up this morning? I almost think I can remember feeling a little different. But if I'm not the same, the next question is, Who in the world am I? Ah, THAT'S the great puzzle!' And she began thinking over all the children she knew that were of the same age as herself, to see if she could have been changed for any of them. + +`I'm sure I'm not Ada,' she said, `for her hair goes in such long ringlets, and mine doesn't go in ringlets at all; and I'm sure I can't be Mabel, for I know all sorts of things, and she, oh! she knows such a very little! Besides, SHE'S she, and I'm I, and--oh dear, how puzzling it all is! I'll try if I know all the things I used to know. Let me see: four times five is twelve, and four times six is thirteen, and four times seven is--oh dear! I shall never get to twenty at that rate! However, the Multiplication Table doesn't signify: let's try Geography. London is the capital of Paris, and Paris is the capital of Rome, and Rome--no, THAT'S all wrong, I'm certain! I must have been changed for Mabel! I'll try and say "How doth the little--"' and she crossed her hands on her lap as if she were saying lessons, and began to repeat it, but her voice sounded hoarse and strange, and the words did not come the same as they used to do:-- + +poem{ + + `How doth the little crocodile + Improve his shining tail, + And pour the waters of the Nile + On every golden scale! + + `How cheerfully he seems to grin, + How neatly spread his claws, + And welcome little fishes in + With gently smiling jaws!' + +}poem + +"I'm sure those are not the right words," said poor Alice, and her eyes filled with tears again as she went on, `I must be Mabel after all, and I shall have to go and live in that poky little house, and have next to no toys to play with, and oh! ever so many lessons to learn! No, I've made up my mind about it; if I'm Mabel, I'll stay down here! It'll be no use their putting their heads down and saying "Come up again, dear!" I shall only look up and say "Who am I then? Tell me that first, and then, if I like being that person, I'll come up: if not, I'll stay down here till I'm somebody else"--but, oh dear!' cried Alice, with a sudden burst of tears, "I do wish they WOULD put their heads down! I am so VERY tired of being all alone here!" + +As she said this she looked down at her hands, and was surprised to see that she had put on one of the Rabbit's little white kid gloves while she was talking. `How CAN I have done that?' she thought. `I must be growing small again.' She got up and went to the table to measure herself by it, and found that, as nearly as she could guess, she was now about two feet high, and was going on shrinking rapidly: she soon found out that the cause of this was the fan she was holding, and she dropped it hastily, just in time to avoid shrinking away altogether. + +`That WAS a narrow escape!' said Alice, a good deal frightened at the sudden change, but very glad to find herself still in existence; `and now for the garden!' and she ran with all speed back to the little door: but, alas! the little door was shut again, and the little golden key was lying on the glass table as before, `and things are worse than ever,' thought the poor child, `for I never was so small as this before, never! And I declare it's too bad, that it is!' + +As she said these words her foot slipped, and in another moment, splash! she was up to her chin in salt water. Her first idea was that she had somehow fallen into the sea, `and in that case I can go back by railway,' she said to herself. (Alice had been to the seaside once in her life, and had come to the general conclusion, that wherever you go to on the English coast you find a number of bathing machines in the sea, some children digging in the sand with wooden spades, then a row of lodging houses, and behind them a railway station.) However, she soon made out that she was in the pool of tears which she had wept when she was nine feet high. + +`I wish I hadn't cried so much!' said Alice, as she swam about, trying to find her way out. `I shall be punished for it now, I suppose, by being drowned in my own tears! That WILL be a queer thing, to be sure! However, everything is queer to-day.' + +Just then she heard something splashing about in the pool a little way off, and she swam nearer to make out what it was: at first she thought it must be a walrus or hippopotamus, but then she remembered how small she was now, and she soon made out that it was only a mouse that had slipped in like herself. + +`Would it be of any use, now,' thought Alice, `to speak to this mouse? Everything is so out-of-the-way down here, that I should think very likely it can talk: at any rate, there's no harm in trying.' So she began: `O Mouse, do you know the way out of this pool? I am very tired of swimming about here, O Mouse!' (Alice thought this must be the right way of speaking to a mouse: she had never done such a thing before, but she remembered having seen in her brother's Latin Grammar, `A mouse--of a mouse--to a mouse--a mouse--O mouse!') The Mouse looked at her rather inquisitively, and seemed to her to wink with one of its little eyes, but it said nothing. + +`Perhaps it doesn't understand English,' thought Alice; `I daresay it's a French mouse, come over with William the Conqueror.' (For, with all her knowledge of history, Alice had no very clear notion how long ago anything had happened.) So she began again: `Ou est ma chatte?' which was the first sentence in her French lesson-book. The Mouse gave a sudden leap out of the water, and seemed to quiver all over with fright. `Oh, I beg your pardon!' cried Alice hastily, afraid that she had hurt the poor animal's feelings. `I quite forgot you didn't like cats.' + +`Not like cats!' cried the Mouse, in a shrill, passionate voice. `Would YOU like cats if you were me?' + +`Well, perhaps not,' said Alice in a soothing tone: `don't be angry about it. And yet I wish I could show you our cat Dinah: I think you'd take a fancy to cats if you could only see her. She is such a dear quiet thing,' Alice went on, half to herself, as she swam lazily about in the pool, `and she sits purring so nicely by the fire, licking her paws and washing her face--and she is such a nice soft thing to nurse--and she's such a capital one for catching mice--oh, I beg your pardon!' cried Alice again, for this time the Mouse was bristling all over, and she felt certain it must be really offended. `We won't talk about her any more if you'd rather not.' + +`We indeed!' cried the Mouse, who was trembling down to the end of his tail. `As if I would talk on such a subject! Our family always HATED cats: nasty, low, vulgar things! Don't let me hear the name again!' + +`I won't indeed!' said Alice, in a great hurry to change the subject of conversation. `Are you--are you fond--of--of dogs?' The Mouse did not answer, so Alice went on eagerly: `There is such a nice little dog near our house I should like to show you! A little bright-eyed terrier, you know, with oh, such long curly brown hair! And it'll fetch things when you throw them, and it'll sit up and beg for its dinner, and all sorts of things--I can't remember half of them--and it belongs to a farmer, you know, and he says it's so useful, it's worth a hundred pounds! He says it kills all the rats and--oh dear!' cried Alice in a sorrowful tone, `I'm afraid I've offended it again!' For the Mouse was swimming away from her as hard as it could go, and making quite a commotion in the pool as it went. + +So she called softly after it, `Mouse dear! Do come back again, and we won't talk about cats or dogs either, if you don't like them!' When the Mouse heard this, it turned round and swam slowly back to her: its face was quite pale (with passion, Alice thought), and it said in a low trembling voice, `Let us get to the shore, and then I'll tell you my history, and you'll understand why it is I hate cats and dogs.' + +It was high time to go, for the pool was getting quite crowded with the birds and animals that had fallen into it: there were a Duck and a Dodo, a Lory and an Eaglet, and several other curious creatures. Alice led the way, and the whole party swam to the shore. + +CHAPTER III - A Caucus-Race and a Long Tale + +They were indeed a queer-looking party that assembled on the bank--the birds with draggled feathers, the animals with their fur clinging close to them, and all dripping wet, cross, and uncomfortable. + +The first question of course was, how to get dry again: they had a consultation about this, and after a few minutes it seemed quite natural to Alice to find herself talking familiarly with them, as if she had known them all her life. Indeed, she had quite a long argument with the Lory, who at last turned sulky, and would only say, `I am older than you, and must know better'; and this Alice would not allow without knowing how old it was, and, as the Lory positively refused to tell its age, there was no more to be said. + +At last the Mouse, who seemed to be a person of authority among them, called out, `Sit down, all of you, and listen to me! I'LL soon make you dry enough!' They all sat down at once, in a large ring, with the Mouse in the middle. Alice kept her eyes anxiously fixed on it, for she felt sure she would catch a bad cold if she did not get dry very soon. + +`Ahem!' said the Mouse with an important air, `are you all ready? This is the driest thing I know. Silence all round, if you please! "William the Conqueror, whose cause was favoured by the pope, was soon submitted to by the English, who wanted leaders, and had been of late much accustomed to usurpation and conquest. Edwin and Morcar, the earls of Mercia and Northumbria--"' + +`Ugh!' said the Lory, with a shiver. + +`I beg your pardon!' said the Mouse, frowning, but very politely: `Did you speak?' + +`Not I!' said the Lory hastily. + +`I thought you did,' said the Mouse. `--I proceed. "Edwin and Morcar, the earls of Mercia and Northumbria, declared for him: and even Stigand, the patriotic archbishop of Canterbury, found it advisable--"' + +`Found WHAT?' said the Duck. + +`Found IT,' the Mouse replied rather crossly: `of course you know what "it" means.' + +`I know what "it" means well enough, when I find a thing,' said the Duck: `it's generally a frog or a worm. The question is, what did the archbishop find?' + +The Mouse did not notice this question, but hurriedly went on, `"--found it advisable to go with Edgar Atheling to meet William and offer him the crown. William's conduct at first was moderate. But the insolence of his Normans--" How are you getting on now, my dear?' it continued, turning to Alice as it spoke. + +`As wet as ever,' said Alice in a melancholy tone: `it doesn't seem to dry me at all.' + +`In that case,' said the Dodo solemnly, rising to its feet, `I move that the meeting adjourn, for the immediate adoption of more energetic remedies--' + +`Speak English!' said the Eaglet. `I don't know the meaning of half those long words, and, what's more, I don't believe you do either!' And the Eaglet bent down its head to hide a smile: some of the other birds tittered audibly. + +`What I was going to say,' said the Dodo in an offended tone, `was, that the best thing to get us dry would be a Caucus-race.' + +`What IS a Caucus-race?' said Alice; not that she wanted much to know, but the Dodo had paused as if it thought that SOMEBODY ought to speak, and no one else seemed inclined to say anything. + +`Why,' said the Dodo, `the best way to explain it is to do it.' (And, as you might like to try the thing yourself, some winter day, I will tell you how the Dodo managed it.) + +First it marked out a race-course, in a sort of circle, (`the exact shape doesn't matter,' it said,) and then all the party were placed along the course, here and there. There was no `One, two, three, and away,' but they began running when they liked, and left off when they liked, so that it was not easy to know when the race was over. However, when they had been running half an hour or so, and were quite dry again, the Dodo suddenly called out `The race is over!' and they all crowded round it, panting, and asking, `But who has won?' + +This question the Dodo could not answer without a great deal of thought, and it sat for a long time with one finger pressed upon its forehead (the position in which you usually see Shakespeare, in the pictures of him), while the rest waited in silence. At last the Dodo said, `EVERYBODY has won, and all must have prizes.' + +`But who is to give the prizes?' quite a chorus of voices asked. + +`Why, SHE, of course,' said the Dodo, pointing to Alice with one finger; and the whole party at once crowded round her, calling out in a confused way, `Prizes! Prizes!' + +Alice had no idea what to do, and in despair she put her hand in her pocket, and pulled out a box of comfits, (luckily the salt water had not got into it), and handed them round as prizes. There was exactly one a-piece all round. + +`But she must have a prize herself, you know,' said the Mouse. + +`Of course,' the Dodo replied very gravely. `What else have you got in your pocket?' he went on, turning to Alice. + +`Only a thimble,' said Alice sadly. + +`Hand it over here,' said the Dodo. + +Then they all crowded round her once more, while the Dodo solemnly presented the thimble, saying `We beg your acceptance of this elegant thimble'; and, when it had finished this short speech, they all cheered. + +Alice thought the whole thing very absurd, but they all looked so grave that she did not dare to laugh; and, as she could not think of anything to say, she simply bowed, and took the thimble, looking as solemn as she could. + +The next thing was to eat the comfits: this caused some noise and confusion, as the large birds complained that they could not taste theirs, and the small ones choked and had to be patted on the back. However, it was over at last, and they sat down again in a ring, and begged the Mouse to tell them something more. + +`You promised to tell me your history, you know,' said Alice, `and why it is you hate--C and D,' she added in a whisper, half afraid that it would be offended again. + +`Mine is a long and a sad tale!' said the Mouse, turning to Alice, and sighing. + +`It IS a long tail, certainly,' said Alice, looking down with wonder at the Mouse's tail; `but why do you call it sad?' And she kept on puzzling about it while the Mouse was speaking, so that her idea of the tale was something like this:-- + +poem{ + + `Fury said to a + mouse, That he + met in the + house, + "Let us + both go to + law: I will + prosecute + YOU. --Come, + I'll take no + denial; We + must have a + trial: For + really this + morning I've + nothing + to do." + Said the + mouse to the + cur, "Such + a trial, + dear Sir, + With + no jury + or judge, + would be + wasting + our + breath." + "I'll be + judge, I'll + be jury," + Said + cunning + old Fury: + "I'll + try the + whole + cause, + and + condemn + you + to + death."' + +}poem + +`You are not attending!' said the Mouse to Alice severely. `What are you thinking of?' + +`I beg your pardon,' said Alice very humbly: `you had got to the fifth bend, I think?' + +`I had NOT!' cried the Mouse, sharply and very angrily. + +`A knot!' said Alice, always ready to make herself useful, and looking anxiously about her. `Oh, do let me help to undo it!' + +`I shall do nothing of the sort,' said the Mouse, getting up and walking away. `You insult me by talking such nonsense!' + +`I didn't mean it!' pleaded poor Alice. `But you're so easily offended, you know!' + +The Mouse only growled in reply. + +`Please come back and finish your story!' Alice called after it; and the others all joined in chorus, `Yes, please do!' but the Mouse only shook its head impatiently, and walked a little quicker. + +`What a pity it wouldn't stay!' sighed the Lory, as soon as it was quite out of sight; and an old Crab took the opportunity of saying to her daughter `Ah, my dear! Let this be a lesson to you never to lose YOUR temper!' `Hold your tongue, Ma!' said the young Crab, a little snappishly. `You're enough to try the patience of an oyster!' + +`I wish I had our Dinah here, I know I do!' said Alice aloud, addressing nobody in particular. `She'd soon fetch it back!' + +`And who is Dinah, if I might venture to ask the question?' said the Lory. + +Alice replied eagerly, for she was always ready to talk about her pet: `Dinah's our cat. And she's such a capital one for catching mice you can't think! And oh, I wish you could see her after the birds! Why, she'll eat a little bird as soon as look at it!' + +This speech caused a remarkable sensation among the party. Some of the birds hurried off at once: one old Magpie began wrapping itself up very carefully, remarking, `I really must be getting home; the night-air doesn't suit my throat!' and a Canary called out in a trembling voice to its children, `Come away, my dears! It's high time you were all in bed!' On various pretexts they all moved off, and Alice was soon left alone. + +`I wish I hadn't mentioned Dinah!' she said to herself in a melancholy tone. `Nobody seems to like her, down here, and I'm sure she's the best cat in the world! Oh, my dear Dinah! I wonder if I shall ever see you any more!' And here poor Alice began to cry again, for she felt very lonely and low-spirited. In a little while, however, she again heard a little pattering of footsteps in the distance, and she looked up eagerly, half hoping that the Mouse had changed his mind, and was coming back to finish his story. + +CHAPTER IV - The Rabbit Sends in a Little Bill + +It was the White Rabbit, trotting slowly back again, and looking anxiously about as it went, as if it had lost something; and she heard it muttering to itself `The Duchess! The Duchess! Oh my dear paws! Oh my fur and whiskers! She'll get me executed, as sure as ferrets are ferrets! Where CAN I have dropped them, I wonder?' Alice guessed in a moment that it was looking for the fan and the pair of white kid gloves, and she very good-naturedly began hunting about for them, but they were nowhere to be seen--everything seemed to have changed since her swim in the pool, and the great hall, with the glass table and the little door, had vanished completely. + +Very soon the Rabbit noticed Alice, as she went hunting about, and called out to her in an angry tone, `Why, Mary Ann, what ARE you doing out here? Run home this moment, and fetch me a pair of gloves and a fan! Quick, now!' And Alice was so much frightened that she ran off at once in the direction it pointed to, without trying to explain the mistake it had made. + +`He took me for his housemaid,' she said to herself as she ran. `How surprised he'll be when he finds out who I am! But I'd better take him his fan and gloves--that is, if I can find them.' As she said this, she came upon a neat little house, on the door of which was a bright brass plate with the name `W. RABBIT' engraved upon it. She went in without knocking, and hurried upstairs, in great fear lest she should meet the real Mary Ann, and be turned out of the house before she had found the fan and gloves. + +`How queer it seems,' Alice said to herself, `to be going messages for a rabbit! I suppose Dinah'll be sending me on messages next!' And she began fancying the sort of thing that would happen: `"Miss Alice! Come here directly, and get ready for your walk!" "Coming in a minute, nurse! But I've got to see that the mouse doesn't get out." Only I don't think,' Alice went on, `that they'd let Dinah stop in the house if it began ordering people about like that!' + +By this time she had found her way into a tidy little room with a table in the window, and on it (as she had hoped) a fan and two or three pairs of tiny white kid gloves: she took up the fan and a pair of the gloves, and was just going to leave the room, when her eye fell upon a little bottle that stood near the looking- glass. There was no label this time with the words `DRINK ME,' but nevertheless she uncorked it and put it to her lips. `I know SOMETHING interesting is sure to happen,' she said to herself, `whenever I eat or drink anything; so I'll just see what this bottle does. I do hope it'll make me grow large again, for really I'm quite tired of being such a tiny little thing!' + +It did so indeed, and much sooner than she had expected: before she had drunk half the bottle, she found her head pressing against the ceiling, and had to stoop to save her neck from being broken. She hastily put down the bottle, saying to herself `That's quite enough--I hope I shan't grow any more--As it is, I can't get out at the door--I do wish I hadn't drunk quite so much!' + +Alas! it was too late to wish that! She went on growing, and growing, and very soon had to kneel down on the floor: in another minute there was not even room for this, and she tried the effect of lying down with one elbow against the door, and the other arm curled round her head. Still she went on growing, and, as a last resource, she put one arm out of the window, and one foot up the chimney, and said to herself `Now I can do no more, whatever happens. What WILL become of me?' + +Luckily for Alice, the little magic bottle had now had its full effect, and she grew no larger: still it was very uncomfortable, and, as there seemed to be no sort of chance of her ever getting out of the room again, no wonder she felt unhappy. + +`It was much pleasanter at home,' thought poor Alice, `when one wasn't always growing larger and smaller, and being ordered about by mice and rabbits. I almost wish I hadn't gone down that rabbit-hole--and yet--and yet--it's rather curious, you know, this sort of life! I do wonder what CAN have happened to me! When I used to read fairy-tales, I fancied that kind of thing never happened, and now here I am in the middle of one! There ought to be a book written about me, that there ought! And when I grow up, I'll write one--but I'm grown up now,' she added in a sorrowful tone; `at least there's no room to grow up any more HERE.' + +`But then,' thought Alice, `shall I NEVER get any older than I am now? That'll be a comfort, one way--never to be an old woman-- but then--always to have lessons to learn! Oh, I shouldn't like THAT!' + +`Oh, you foolish Alice!' she answered herself. `How can you learn lessons in here? Why, there's hardly room for YOU, and no room at all for any lesson-books!' + +And so she went on, taking first one side and then the other, and making quite a conversation of it altogether; but after a few minutes she heard a voice outside, and stopped to listen. + +`Mary Ann! Mary Ann!' said the voice. `Fetch me my gloves this moment!' Then came a little pattering of feet on the stairs. Alice knew it was the Rabbit coming to look for her, and she trembled till she shook the house, quite forgetting that she was now about a thousand times as large as the Rabbit, and had no reason to be afraid of it. + +Presently the Rabbit came up to the door, and tried to open it; but, as the door opened inwards, and Alice's elbow was pressed hard against it, that attempt proved a failure. Alice heard it say to itself `Then I'll go round and get in at the window.' + +`THAT you won't' thought Alice, and, after waiting till she fancied she heard the Rabbit just under the window, she suddenly spread out her hand, and made a snatch in the air. She did not get hold of anything, but she heard a little shriek and a fall, and a crash of broken glass, from which she concluded that it was just possible it had fallen into a cucumber-frame, or something of the sort. + +Next came an angry voice--the Rabbit's--`Pat! Pat! Where are you?' And then a voice she had never heard before, `Sure then I'm here! Digging for apples, yer honour!' + +`Digging for apples, indeed!' said the Rabbit angrily. `Here! Come and help me out of THIS!' (Sounds of more broken glass.) + +`Now tell me, Pat, what's that in the window?' + +`Sure, it's an arm, yer honour!' (He pronounced it `arrum.') + +`An arm, you goose! Who ever saw one that size? Why, it fills the whole window!' + +`Sure, it does, yer honour: but it's an arm for all that.' + +`Well, it's got no business there, at any rate: go and take it away!' + +There was a long silence after this, and Alice could only hear whispers now and then; such as, `Sure, I don't like it, yer honour, at all, at all!' `Do as I tell you, you coward!' and at last she spread out her hand again, and made another snatch in the air. This time there were TWO little shrieks, and more sounds of broken glass. `What a number of cucumber-frames there must be!' thought Alice. `I wonder what they'll do next! As for pulling me out of the window, I only wish they COULD! I'm sure I don't want to stay in here any longer!' + +She waited for some time without hearing anything more: at last came a rumbling of little cartwheels, and the sound of a good many voices all talking together: she made out the words: `Where's the other ladder?--Why, I hadn't to bring but one; Bill's got the other--Bill! fetch it here, lad!--Here, put 'em up at this corner--No, tie 'em together first--they don't reach half high enough yet--Oh! they'll do well enough; don't be particular-- Here, Bill! catch hold of this rope--Will the roof bear?--Mind that loose slate--Oh, it's coming down! Heads below!' (a loud crash)--`Now, who did that?--It was Bill, I fancy--Who's to go down the chimney?--Nay, I shan't! YOU do it!--That I won't, then!--Bill's to go down--Here, Bill! the master says you're to go down the chimney!' + +`Oh! So Bill's got to come down the chimney, has he?' said Alice to herself. `Shy, they seem to put everything upon Bill! I wouldn't be in Bill's place for a good deal: this fireplace is narrow, to be sure; but I THINK I can kick a little!' + +She drew her foot as far down the chimney as she could, and waited till she heard a little animal (she couldn't guess of what sort it was) scratching and scrambling about in the chimney close above her: then, saying to herself `This is Bill,' she gave one sharp kick, and waited to see what would happen next. + +The first thing she heard was a general chorus of `There goes Bill!' then the Rabbit's voice along--`Catch him, you by the hedge!' then silence, and then another confusion of voices--`Hold up his head--Brandy now--Don't choke him--How was it, old fellow? What happened to you? Tell us all about it!' + +Last came a little feeble, squeaking voice, (`That's Bill,' thought Alice,) `Well, I hardly know--No more, thank ye; I'm better now--but I'm a deal too flustered to tell you--all I know is, something comes at me like a Jack-in-the-box, and up I goes like a sky-rocket!' + +`So you did, old fellow!' said the others. + +`We must burn the house down!' said the Rabbit's voice; and Alice called out as loud as she could, `If you do. I'll set Dinah at you!' + +There was a dead silence instantly, and Alice thought to herself, `I wonder what they WILL do next! If they had any sense, they'd take the roof off.' After a minute or two, they began moving about again, and Alice heard the Rabbit say, `A barrowful will do, to begin with.' + +`A barrowful of WHAT?' thought Alice; but she had not long to doubt, for the next moment a shower of little pebbles came rattling in at the window, and some of them hit her in the face. `I'll put a stop to this,' she said to herself, and shouted out, `You'd better not do that again!' which produced another dead silence. + +Alice noticed with some surprise that the pebbles were all turning into little cakes as they lay on the floor, and a bright idea came into her head. `If I eat one of these cakes,' she thought, `it's sure to make SOME change in my size; and as it can't possibly make me larger, it must make me smaller, I suppose.' + +So she swallowed one of the cakes, and was delighted to find that she began shrinking directly. As soon as she was small enough to get through the door, she ran out of the house, and found quite a crowd of little animals and birds waiting outside. The poor little Lizard, Bill, was in the middle, being held up by two guinea-pigs, who were giving it something out of a bottle. They all made a rush at Alice the moment she appeared; but she ran off as hard as she could, and soon found herself safe in a thick wood. + +`The first thing I've got to do,' said Alice to herself, as she wandered about in the wood, `is to grow to my right size again; and the second thing is to find my way into that lovely garden. I think that will be the best plan.' + +It sounded an excellent plan, no doubt, and very neatly and simply arranged; the only difficulty was, that she had not the smallest idea how to set about it; and while she was peering about anxiously among the trees, a little sharp bark just over her head made her look up in a great hurry. + +An enormous puppy was looking down at her with large round eyes, and feebly stretching out one paw, trying to touch her. `Poor little thing!' said Alice, in a coaxing tone, and she tried hard to whistle to it; but she was terribly frightened all the time at the thought that it might be hungry, in which case it would be very likely to eat her up in spite of all her coaxing. + +Hardly knowing what she did, she picked up a little bit of stick, and held it out to the puppy; whereupon the puppy jumped into the air off all its feet at once, with a yelp of delight, and rushed at the stick, and made believe to worry it; then Alice dodged behind a great thistle, to keep herself from being run over; and the moment she appeared on the other side, the puppy made another rush at the stick, and tumbled head over heels in its hurry to get hold of it; then Alice, thinking it was very like having a game of play with a cart-horse, and expecting every moment to be trampled under its feet, ran round the thistle again; then the puppy began a series of short charges at the stick, running a very little way forwards each time and a long way back, and barking hoarsely all the while, till at last it sat down a good way off, panting, with its tongue hanging out of its mouth, and its great eyes half shut. + +This seemed to Alice a good opportunity for making her escape; so she set off at once, and ran till she was quite tired and out of breath, and till the puppy's bark sounded quite faint in the distance. + +`And yet what a dear little puppy it was!' said Alice, as she leant against a buttercup to rest herself, and fanned herself with one of the leaves: `I should have liked teaching it tricks very much, if--if I'd only been the right size to do it! Oh dear! I'd nearly forgotten that I've got to grow up again! Let me see--how IS it to be managed? I suppose I ought to eat or drink something or other; but the great question is, what?' + +The great question certainly was, what? Alice looked all round her at the flowers and the blades of grass, but she did not see anything that looked like the right thing to eat or drink under the circumstances. There was a large mushroom growing near her, about the same height as herself; and when she had looked under it, and on both sides of it, and behind it, it occurred to her that she might as well look and see what was on the top of it. + +She stretched herself up on tiptoe, and peeped over the edge of the mushroom, and her eyes immediately met those of a large caterpillar, that was sitting on the top with its arms folded, quietly smoking a long hookah, and taking not the smallest notice of her or of anything else. + +CHAPTER V - Advice from a Caterpillar + +The Caterpillar and Alice looked at each other for some time in silence: at last the Caterpillar took the hookah out of its mouth, and addressed her in a languid, sleepy voice. + +`Who are YOU?' said the Caterpillar. + +This was not an encouraging opening for a conversation. Alice replied, rather shyly, `I--I hardly know, sir, just at present-- at least I know who I WAS when I got up this morning, but I think I must have been changed several times since then.' + +`What do you mean by that?' said the Caterpillar sternly. `Explain yourself!' + +`I can't explain MYSELF, I'm afraid, sir' said Alice, `because I'm not myself, you see.' + +`I don't see,' said the Caterpillar. + +`I'm afraid I can't put it more clearly,' Alice replied very politely, `for I can't understand it myself to begin with; and being so many different sizes in a day is very confusing.' + +`It isn't,' said the Caterpillar. + +`Well, perhaps you haven't found it so yet,' said Alice; `but when you have to turn into a chrysalis--you will some day, you know--and then after that into a butterfly, I should think you'll feel it a little queer, won't you?' + +`Not a bit,' said the Caterpillar. + +`Well, perhaps your feelings may be different,' said Alice; `all I know is, it would feel very queer to ME.' + +`You!' said the Caterpillar contemptuously. `Who are YOU?' + +Which brought them back again to the beginning of the conversation. Alice felt a little irritated at the Caterpillar's making such VERY short remarks, and she drew herself up and said, very gravely, `I think, you ought to tell me who YOU are, first.' + +`Why?' said the Caterpillar. + +Here was another puzzling question; and as Alice could not think of any good reason, and as the Caterpillar seemed to be in a VERY unpleasant state of mind, she turned away. + +`Come back!' the Caterpillar called after her. `I've something important to say!' + +This sounded promising, certainly: Alice turned and came back again. + +`Keep your temper,' said the Caterpillar. + +`Is that all?' said Alice, swallowing down her anger as well as she could. + +`No,' said the Caterpillar. + +Alice thought she might as well wait, as she had nothing else to do, and perhaps after all it might tell her something worth hearing. For some minutes it puffed away without speaking, but at last it unfolded its arms, took the hookah out of its mouth again, and said, `So you think you're changed, do you?' + +`I'm afraid I am, sir,' said Alice; `I can't remember things as I used--and I don't keep the same size for ten minutes together!' + +`Can't remember WHAT things?' said the Caterpillar. + +`Well, I've tried to say "HOW DOTH THE LITTLE BUSY BEE," but it all came different!' Alice replied in a very melancholy voice. + +`Repeat, "YOU ARE OLD, FATHER WILLIAM,"' said the Caterpillar. + +Alice folded her hands, and began:-- + +poem{ + + `You are old, Father William,' the young man said, + `And your hair has become very white; + And yet you incessantly stand on your head-- + Do you think, at your age, it is right?' + + `In my youth,' Father William replied to his son, + `I feared it might injure the brain; + But, now that I'm perfectly sure I have none, + Why, I do it again and again.' + + `You are old,' said the youth, `as I mentioned before, + And have grown most uncommonly fat; + Yet you turned a back-somersault in at the door-- + Pray, what is the reason of that?' + + `In my youth,' said the sage, as he shook his grey locks, + `I kept all my limbs very supple + By the use of this ointment--one shilling the box-- + Allow me to sell you a couple?' + + `You are old,' said the youth, `and your jaws are too weak + For anything tougher than suet; + Yet you finished the goose, with the bones and the beak-- + Pray how did you manage to do it?' + + `In my youth,' said his father, `I took to the law, + And argued each case with my wife; + And the muscular strength, which it gave to my jaw, + Has lasted the rest of my life.' + + `You are old,' said the youth, `one would hardly suppose + That your eye was as steady as ever; + Yet you balanced an eel on the end of your nose-- + What made you so awfully clever?' + + `I have answered three questions, and that is enough,' + Said his father; `don't give yourself airs! + Do you think I can listen all day to such stuff? + Be off, or I'll kick you down stairs!' + +}poem + +`That is not said right,' said the Caterpillar. + +`Not QUITE right, I'm afraid,' said Alice, timidly; `some of the words have got altered.' + +`It is wrong from beginning to end,' said the Caterpillar decidedly, and there was silence for some minutes. + +The Caterpillar was the first to speak. + +`What size do you want to be?' it asked. + +`Oh, I'm not particular as to size,' Alice hastily replied; `only one doesn't like changing so often, you know.' + +`I DON'T know,' said the Caterpillar. + +Alice said nothing: she had never been so much contradicted in her life before, and she felt that she was losing her temper. + +`Are you content now?' said the Caterpillar. + +`Well, I should like to be a LITTLE larger, sir, if you wouldn't mind,' said Alice: `three inches is such a wretched height to be.' + +`It is a very good height indeed!' said the Caterpillar angrily, rearing itself upright as it spoke (it was exactly three inches high). + +`But I'm not used to it!' pleaded poor Alice in a piteous tone. And she thought of herself, `I wish the creatures wouldn't be so easily offended!' + +`You'll get used to it in time,' said the Caterpillar; and it put the hookah into its mouth and began smoking again. + +This time Alice waited patiently until it chose to speak again. In a minute or two the Caterpillar took the hookah out of its mouth and yawned once or twice, and shook itself. Then it got down off the mushroom, and crawled away in the grass, merely remarking as it went, `One side will make you grow taller, and the other side will make you grow shorter.' + +`One side of WHAT? The other side of WHAT?' thought Alice to herself. + +`Of the mushroom,' said the Caterpillar, just as if she had asked it aloud; and in another moment it was out of sight. + +Alice remained looking thoughtfully at the mushroom for a minute, trying to make out which were the two sides of it; and as it was perfectly round, she found this a very difficult question. However, at last she stretched her arms round it as far as they would go, and broke off a bit of the edge with each hand. + +`And now which is which?' she said to herself, and nibbled a little of the right-hand bit to try the effect: the next moment she felt a violent blow underneath her chin: it had struck her foot! + +She was a good deal frightened by this very sudden change, but she felt that there was no time to be lost, as she was shrinking rapidly; so she set to work at once to eat some of the other bit. Her chin was pressed so closely against her foot, that there was hardly room to open her mouth; but she did it at last, and managed to swallow a morsel of the lefthand bit. + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +`Come, my head's free at last!' said Alice in a tone of delight, which changed into alarm in another moment, when she found that her shoulders were nowhere to be found: all she could see, when she looked down, was an immense length of neck, which seemed to rise like a stalk out of a sea of green leaves that lay far below her. + +`What CAN all that green stuff be?' said Alice. `And where HAVE my shoulders got to? And oh, my poor hands, how is it I can't see you?' She was moving them about as she spoke, but no result seemed to follow, except a little shaking among the distant green leaves. + +As there seemed to be no chance of getting her hands up to her head, she tried to get her head down to them, and was delighted to find that her neck would bend about easily in any direction, like a serpent. She had just succeeded in curving it down into a graceful zigzag, and was going to dive in among the leaves, which she found to be nothing but the tops of the trees under which she had been wandering, when a sharp hiss made her draw back in a hurry: a large pigeon had flown into her face, and was beating her violently with its wings. + +`Serpent!' screamed the Pigeon. + +`I'm NOT a serpent!' said Alice indignantly. `Let me alone!' + +`Serpent, I say again!' repeated the Pigeon, but in a more subdued tone, and added with a kind of sob, `I've tried every way, and nothing seems to suit them!' + +`I haven't the least idea what you're talking about,' said Alice. + +`I've tried the roots of trees, and I've tried banks, and I've tried hedges,' the Pigeon went on, without attending to her; `but those serpents! There's no pleasing them!' + +Alice was more and more puzzled, but she thought there was no use in saying anything more till the Pigeon had finished. + +`As if it wasn't trouble enough hatching the eggs,' said the Pigeon; `but I must be on the look-out for serpents night and day! Why, I haven't had a wink of sleep these three weeks!' + +`I'm very sorry you've been annoyed,' said Alice, who was beginning to see its meaning. + +`And just as I'd taken the highest tree in the wood,' continued the Pigeon, raising its voice to a shriek, `and just as I was thinking I should be free of them at last, they must needs come wriggling down from the sky! Ugh, Serpent!' + +`But I'm NOT a serpent, I tell you!' said Alice. `I'm a--I'm a--' + +`Well! WHAT are you?' said the Pigeon. `I can see you're trying to invent something!' + +`I--I'm a little girl,' said Alice, rather doubtfully, as she remembered the number of changes she had gone through that day. + +`A likely story indeed!' said the Pigeon in a tone of the deepest contempt. `I've seen a good many little girls in my time, but never ONE with such a neck as that! No, no! You're a serpent; and there's no use denying it. I suppose you'll be telling me next that you never tasted an egg!' + +`I HAVE tasted eggs, certainly,' said Alice, who was a very truthful child; `but little girls eat eggs quite as much as serpents do, you know.' + +`I don't believe it,' said the Pigeon; `but if they do, why then they're a kind of serpent, that's all I can say.' + +This was such a new idea to Alice, that she was quite silent for a minute or two, which gave the Pigeon the opportunity of adding, `You're looking for eggs, I know THAT well enough; and what does it matter to me whether you're a little girl or a serpent?' + +`It matters a good deal to ME,' said Alice hastily; `but I'm not looking for eggs, as it happens; and if I was, I shouldn't want YOURS: I don't like them raw.' + +`Well, be off, then!' said the Pigeon in a sulky tone, as it settled down again into its nest. Alice crouched down among the trees as well as she could, for her neck kept getting entangled among the branches, and every now and then she had to stop and untwist it. After a while she remembered that she still held the pieces of mushroom in her hands, and she set to work very carefully, nibbling first at one and then at the other, and growing sometimes taller and sometimes shorter, until she had succeeded in bringing herself down to her usual height. + +It was so long since she had been anything near the right size, that it felt quite strange at first; but she got used to it in a few minutes, and began talking to herself, as usual. `Come, there's half my plan done now! How puzzling all these changes are! I'm never sure what I'm going to be, from one minute to another! However, I've got back to my right size: the next thing is, to get into that beautiful garden--how IS that to be done, I wonder?' As she said this, she came suddenly upon an open place, with a little house in it about four feet high. `Whoever lives there,' thought Alice, `it'll never do to come upon them THIS size: why, I should frighten them out of their wits!' So she began nibbling at the righthand bit again, and did not venture to go near the house till she had brought herself down to nine inches high. + +CHAPTER VI - Pig and Pepper + +For a minute or two she stood looking at the house, and wondering what to do next, when suddenly a footman in livery came running out of the wood--(she considered him to be a footman because he was in livery: otherwise, judging by his face only, she would have called him a fish)--and rapped loudly at the door with his knuckles. It was opened by another footman in livery, with a round face, and large eyes like a frog; and both footmen, Alice noticed, had powdered hair that curled all over their heads. She felt very curious to know what it was all about, and crept a little way out of the wood to listen. + +The Fish-Footman began by producing from under his arm a great letter, nearly as large as himself, and this he handed over to the other, saying, in a solemn tone, `For the Duchess. An invitation from the Queen to play croquet.' The Frog-Footman repeated, in the same solemn tone, only changing the order of the words a little, `From the Queen. An invitation for the Duchess to play croquet.' + +Then they both bowed low, and their curls got entangled together. + +Alice laughed so much at this, that she had to run back into the wood for fear of their hearing her; and when she next peeped out the Fish-Footman was gone, and the other was sitting on the ground near the door, staring stupidly up into the sky. + +Alice went timidly up to the door, and knocked. + +`There's no sort of use in knocking,' said the Footman, `and that for two reasons. First, because I'm on the same side of the door as you are; secondly, because they're making such a noise inside, no one could possibly hear you.' And certainly there was a most extraordinary noise going on within--a constant howling and sneezing, and every now and then a great crash, as if a dish or kettle had been broken to pieces. + +`Please, then,' said Alice, `how am I to get in?' + +`There might be some sense in your knocking,' the Footman went on without attending to her, `if we had the door between us. For instance, if you were INSIDE, you might knock, and I could let you out, you know.' He was looking up into the sky all the time he was speaking, and this Alice thought decidedly uncivil. `But perhaps he can't help it,' she said to herself; `his eyes are so VERY nearly at the top of his head. But at any rate he might answer questions.--How am I to get in?' she repeated, aloud. + +`I shall sit here,' the Footman remarked, `till tomorrow--' + +At this moment the door of the house opened, and a large plate came skimming out, straight at the Footman's head: it just grazed his nose, and broke to pieces against one of the trees behind him. + +`--or next day, maybe,' the Footman continued in the same tone, exactly as if nothing had happened. + +`How am I to get in?' asked Alice again, in a louder tone. + +`ARE you to get in at all?' said the Footman. `That's the first question, you know.' + +It was, no doubt: only Alice did not like to be told so. `It's really dreadful,' she muttered to herself, `the way all the creatures argue. It's enough to drive one crazy!' + +The Footman seemed to think this a good opportunity for repeating his remark, with variations. `I shall sit here,' he said, `on and off, for days and days.' + +`But what am I to do?' said Alice. + +`Anything you like,' said the Footman, and began whistling. + +`Oh, there's no use in talking to him,' said Alice desperately: `he's perfectly idiotic!' And she opened the door and went in. + +The door led right into a large kitchen, which was full of smoke from one end to the other: the Duchess was sitting on a three-legged stool in the middle, nursing a baby; the cook was leaning over the fire, stirring a large cauldron which seemed to be full of soup. + +`There's certainly too much pepper in that soup!' Alice said to herself, as well as she could for sneezing. + +There was certainly too much of it in the air. Even the Duchess sneezed occasionally; and as for the baby, it was sneezing and howling alternately without a moment's pause. The only things in the kitchen that did not sneeze, were the cook, and a large cat which was sitting on the hearth and grinning from ear to ear. + +`Please would you tell me,' said Alice, a little timidly, for she was not quite sure whether it was good manners for her to speak first, `why your cat grins like that?' + +`It's a Cheshire cat,' said the Duchess, `and that's why. Pig!' + +She said the last word with such sudden violence that Alice quite jumped; but she saw in another moment that it was addressed to the baby, and not to her, so she took courage, and went on again:-- + +`I didn't know that Cheshire cats always grinned; in fact, I didn't know that cats COULD grin.' + +`They all can,' said the Duchess; `and most of 'em do.' + +`I don't know of any that do,' Alice said very politely, feeling quite pleased to have got into a conversation. + +`You don't know much,' said the Duchess; `and that's a fact.' + +Alice did not at all like the tone of this remark, and thought it would be as well to introduce some other subject of conversation. While she was trying to fix on one, the cook took the cauldron of soup off the fire, and at once set to work throwing everything within her reach at the Duchess and the baby --the fire-irons came first; then followed a shower of saucepans, plates, and dishes. The Duchess took no notice of them even when they hit her; and the baby was howling so much already, that it was quite impossible to say whether the blows hurt it or not. + +`Oh, PLEASE mind what you're doing!' cried Alice, jumping up and down in an agony of terror. `Oh, there goes his PRECIOUS nose'; as an unusually large saucepan flew close by it, and very nearly carried it off. + +`If everybody minded their own business,' the Duchess said in a hoarse growl, `the world would go round a deal faster than it does.' + +`Which would NOT be an advantage,' said Alice, who felt very glad to get an opportunity of showing off a little of her knowledge. `Just think of what work it would make with the day and night! You see the earth takes twenty-four hours to turn round on its axis--' + +`Talking of axes,' said the Duchess, `chop off her head!' + +Alice glanced rather anxiously at the cook, to see if she meant to take the hint; but the cook was busily stirring the soup, and seemed not to be listening, so she went on again: `Twenty-four hours, I THINK; or is it twelve? I--' + +`Oh, don't bother ME,' said the Duchess; `I never could abide figures!' And with that she began nursing her child again, singing a sort of lullaby to it as she did so, and giving it a violent shake at the end of every line: + +poem{ + + `Speak roughly to your little boy, + And beat him when he sneezes: + He only does it to annoy, + Because he knows it teases.' + + CHORUS. + + (In which the cook and the baby joined):-- + + `Wow! wow! wow!' + +}poem + +While the Duchess sang the second verse of the song, she kept tossing the baby violently up and down, and the poor little thing howled so, that Alice could hardly hear the words:-- + +poem{ + + `I speak severely to my boy, + I beat him when he sneezes; + For he can thoroughly enjoy + The pepper when he pleases!' + + CHORUS. + + `Wow! wow! wow!' + +}poem + +`Here! you may nurse it a bit, if you like!' the Duchess said to Alice, flinging the baby at her as she spoke. `I must go and get ready to play croquet with the Queen,' and she hurried out of the room. The cook threw a frying-pan after her as she went out, but it just missed her. + +Alice caught the baby with some difficulty, as it was a queer-shaped little creature, and held out its arms and legs in all directions, `just like a star-fish,' thought Alice. The poor little thing was snorting like a steam-engine when she caught it, and kept doubling itself up and straightening itself out again, so that altogether, for the first minute or two, it was as much as she could do to hold it. + +As soon as she had made out the proper way of nursing it, (which was to twist it up into a sort of knot, and then keep tight hold of its right ear and left foot, so as to prevent its undoing itself,) she carried it out into the open air. `IF I don't take this child away with me,' thought Alice, `they're sure to kill it in a day or two: wouldn't it be murder to leave it behind?' She said the last words out loud, and the little thing grunted in reply (it had left off sneezing by this time). `Don't grunt,' said Alice; `that's not at all a proper way of expressing yourself.' + +The baby grunted again, and Alice looked very anxiously into its face to see what was the matter with it. There could be no doubt that it had a VERY turn-up nose, much more like a snout than a real nose; also its eyes were getting extremely small for a baby: altogether Alice did not like the look of the thing at all. `But perhaps it was only sobbing,' she thought, and looked into its eyes again, to see if there were any tears. + +No, there were no tears. `If you're going to turn into a pig, my dear,' said Alice, seriously, `I'll have nothing more to do with you. Mind now!' The poor little thing sobbed again (or grunted, it was impossible to say which), and they went on for some while in silence. + +Alice was just beginning to think to herself, `Now, what am I to do with this creature when I get it home?' when it grunted again, so violently, that she looked down into its face in some alarm. This time there could be NO mistake about it: it was neither more nor less than a pig, and she felt that it would be quite absurd for her to carry it further. + +So she set the little creature down, and felt quite relieved to see it trot away quietly into the wood. `If it had grown up,' she said to herself, `it would have made a dreadfully ugly child: but it makes rather a handsome pig, I think.' And she began thinking over other children she knew, who might do very well as pigs, and was just saying to herself, `if one only knew the right way to change them--' when she was a little startled by seeing the Cheshire Cat sitting on a bough of a tree a few yards off. + +The Cat only grinned when it saw Alice. It looked good- natured, she thought: still it had VERY long claws and a great many teeth, so she felt that it ought to be treated with respect. + +`Cheshire Puss,' she began, rather timidly, as she did not at all know whether it would like the name: however, it only grinned a little wider. `Come, it's pleased so far,' thought Alice, and she went on. `Would you tell me, please, which way I ought to go from here?' + +`That depends a good deal on where you want to get to,' said the Cat. + +`I don't much care where--' said Alice. + +`Then it doesn't matter which way you go,' said the Cat. + +`--so long as I get SOMEWHERE,' Alice added as an explanation. + +`Oh, you're sure to do that,' said the Cat, `if you only walk long enough.' + +Alice felt that this could not be denied, so she tried another question. `What sort of people live about here?' + +`In THAT direction,' the Cat said, waving its right paw round, `lives a Hatter: and in THAT direction,' waving the other paw, `lives a March Hare. Visit either you like: they're both mad.' + +`But I don't want to go among mad people,' Alice remarked. + +`Oh, you can't help that,' said the Cat: `we're all mad here. I'm mad. You're mad.' + +`How do you know I'm mad?' said Alice. + +`You must be,' said the Cat, `or you wouldn't have come here.' + +Alice didn't think that proved it at all; however, she went on `And how do you know that you're mad?' + +`To begin with,' said the Cat, `a dog's not mad. You grant that?' + +`I suppose so,' said Alice. + +`Well, then,' the Cat went on, `you see, a dog growls when it's angry, and wags its tail when it's pleased. Now I growl when I'm pleased, and wag my tail when I'm angry. Therefore I'm mad.' + +`I call it purring, not growling,' said Alice. + +`Call it what you like,' said the Cat. `Do you play croquet with the Queen to-day?' + +`I should like it very much,' said Alice, `but I haven't been invited yet.' + +`You'll see me there,' said the Cat, and vanished. + +Alice was not much surprised at this, she was getting so used to queer things happening. While she was looking at the place where it had been, it suddenly appeared again. + +`By-the-bye, what became of the baby?' said the Cat. `I'd nearly forgotten to ask.' + +`It turned into a pig,' Alice quietly said, just as if it had come back in a natural way. + +`I thought it would,' said the Cat, and vanished again. + +Alice waited a little, half expecting to see it again, but it did not appear, and after a minute or two she walked on in the direction in which the March Hare was said to live. `I've seen hatters before,' she said to herself; `the March Hare will be much the most interesting, and perhaps as this is May it won't be raving mad--at least not so mad as it was in March.' As she said this, she looked up, and there was the Cat again, sitting on a branch of a tree. + +`Did you say pig, or fig?' said the Cat. + +`I said pig,' replied Alice; `and I wish you wouldn't keep appearing and vanishing so suddenly: you make one quite giddy.' + +`All right,' said the Cat; and this time it vanished quite slowly, beginning with the end of the tail, and ending with the grin, which remained some time after the rest of it had gone. + +`Well! I've often seen a cat without a grin,' thought Alice; `but a grin without a cat! It's the most curious thing I ever saw in my life!' + +She had not gone much farther before she came in sight of the house of the March Hare: she thought it must be the right house, because the chimneys were shaped like ears and the roof was thatched with fur. It was so large a house, that she did not like to go nearer till she had nibbled some more of the lefthand bit of mushroom, and raised herself to about two feet high: even then she walked up towards it rather timidly, saying to herself `Suppose it should be raving mad after all! I almost wish I'd gone to see the Hatter instead!' + +CHAPTER VII - A Mad Tea-Party + +There was a table set out under a tree in front of the house, and the March Hare and the Hatter were having tea at it: a Dormouse was sitting between them, fast asleep, and the other two were using it as a cushion, resting their elbows on it, and talking over its head. `Very uncomfortable for the Dormouse,' thought Alice; `only, as it's asleep, I suppose it doesn't mind.' + +The table was a large one, but the three were all crowded together at one corner of it: `No room! No room!' they cried out when they saw Alice coming. `There's PLENTY of room!' said Alice indignantly, and she sat down in a large arm-chair at one end of the table. + +`Have some wine,' the March Hare said in an encouraging tone. + +Alice looked all round the table, but there was nothing on it but tea. `I don't see any wine,' she remarked. + +`There isn't any,' said the March Hare. + +`Then it wasn't very civil of you to offer it,' said Alice angrily. + +`It wasn't very civil of you to sit down without being invited,' said the March Hare. + +`I didn't know it was YOUR table,' said Alice; `it's laid for a great many more than three.' + +`Your hair wants cutting,' said the Hatter. He had been looking at Alice for some time with great curiosity, and this was his first speech. + +`You should learn not to make personal remarks,' Alice said with some severity; `it's very rude.' + +The Hatter opened his eyes very wide on hearing this; but all he SAID was, `Why is a raven like a writing-desk?' + +`Come, we shall have some fun now!' thought Alice. `I'm glad they've begun asking riddles.--I believe I can guess that,' she added aloud. + +`Do you mean that you think you can find out the answer to it?' said the March Hare. + +`Exactly so,' said Alice. + +`Then you should say what you mean,' the March Hare went on. + +`I do,' Alice hastily replied; `at least--at least I mean what I say--that's the same thing, you know.' + +`Not the same thing a bit!' said the Hatter. `You might just as well say that "I see what I eat" is the same thing as "I eat what I see"!' + +`You might just as well say,' added the March Hare, `that "I like what I get" is the same thing as "I get what I like"!' + +`You might just as well say,' added the Dormouse, who seemed to be talking in his sleep, `that "I breathe when I sleep" is the same thing as "I sleep when I breathe"!' + +`It IS the same thing with you,' said the Hatter, and here the conversation dropped, and the party sat silent for a minute, while Alice thought over all she could remember about ravens and writing-desks, which wasn't much. + +The Hatter was the first to break the silence. `What day of the month is it?' he said, turning to Alice: he had taken his watch out of his pocket, and was looking at it uneasily, shaking it every now and then, and holding it to his ear. + +Alice considered a little, and then said `The fourth.' + +`Two days wrong!' sighed the Hatter. `I told you butter wouldn't suit the works!' he added looking angrily at the March Hare. + +`It was the BEST butter,' the March Hare meekly replied. + +`Yes, but some crumbs must have got in as well,' the Hatter grumbled: `you shouldn't have put it in with the bread-knife.' + +The March Hare took the watch and looked at it gloomily: then he dipped it into his cup of tea, and looked at it again: but he could think of nothing better to say than his first remark, `It was the BEST butter, you know.' + +Alice had been looking over his shoulder with some curiosity. `What a funny watch!' she remarked. `It tells the day of the month, and doesn't tell what o'clock it is!' + +`Why should it?' muttered the Hatter. `Does YOUR watch tell you what year it is?' + +`Of course not,' Alice replied very readily: `but that's because it stays the same year for such a long time together.' + +`Which is just the case with MINE,' said the Hatter. + +Alice felt dreadfully puzzled. The Hatter's remark seemed to have no sort of meaning in it, and yet it was certainly English. `I don't quite understand you,' she said, as politely as she could. + +`The Dormouse is asleep again,' said the Hatter, and he poured a little hot tea upon its nose. + +The Dormouse shook its head impatiently, and said, without opening its eyes, `Of course, of course; just what I was going to remark myself.' + +`Have you guessed the riddle yet?' the Hatter said, turning to Alice again. + +`No, I give it up,' Alice replied: `what's the answer?' + +`I haven't the slightest idea,' said the Hatter. + +`Nor I,' said the March Hare. + +Alice sighed wearily. `I think you might do something better with the time,' she said, `than waste it in asking riddles that have no answers.' + +`If you knew Time as well as I do,' said the Hatter, `you wouldn't talk about wasting IT. It's HIM.' + +`I don't know what you mean,' said Alice. + +`Of course you don't!' the Hatter said, tossing his head contemptuously. `I dare say you never even spoke to Time!' + +`Perhaps not,' Alice cautiously replied: `but I know I have to beat time when I learn music.' + +`Ah! that accounts for it,' said the Hatter. `He won't stand beating. Now, if you only kept on good terms with him, he'd do almost anything you liked with the clock. For instance, suppose it were nine o'clock in the morning, just time to begin lessons: you'd only have to whisper a hint to Time, and round goes the clock in a twinkling! Half-past one, time for dinner!' + +(`I only wish it was,' the March Hare said to itself in a whisper.) + +`That would be grand, certainly,' said Alice thoughtfully: `but then--I shouldn't be hungry for it, you know.' + +`Not at first, perhaps,' said the Hatter: `but you could keep it to half-past one as long as you liked.' + +`Is that the way YOU manage?' Alice asked. + +The Hatter shook his head mournfully. `Not I!' he replied. `We quarrelled last March--just before HE went mad, you know--' (pointing with his tea spoon at the March Hare,) `--it was at the great concert given by the Queen of Hearts, and I had to sing + +poem{ + + "Twinkle, twinkle, little bat! + How I wonder what you're at!" + +}poem + +You know the song, perhaps?' + +`I've heard something like it,' said Alice. + +`It goes on, you know,' the Hatter continued, `in this way:-- + +poem{ + + "Up above the world you fly, + Like a tea-tray in the sky. + Twinkle, twinkle--"' + +}poem + +Here the Dormouse shook itself, and began singing in its sleep `Twinkle, twinkle, twinkle, twinkle--' and went on so long that they had to pinch it to make it stop. + +`Well, I'd hardly finished the first verse,' said the Hatter, `when the Queen jumped up and bawled out, "He's murdering the time! Off with his head!"' + +`How dreadfully savage!' exclaimed Alice. + +`And ever since that,' the Hatter went on in a mournful tone, `he won't do a thing I ask! It's always six o'clock now.' + +A bright idea came into Alice's head. `Is that the reason so many tea-things are put out here?' she asked. + +`Yes, that's it,' said the Hatter with a sigh: `it's always tea-time, and we've no time to wash the things between whiles.' + +`Then you keep moving round, I suppose?' said Alice. + +`Exactly so,' said the Hatter: `as the things get used up.' + +`But what happens when you come to the beginning again?' Alice ventured to ask. + +`Suppose we change the subject,' the March Hare interrupted, yawning. `I'm getting tired of this. I vote the young lady tells us a story.' + +`I'm afraid I don't know one,' said Alice, rather alarmed at the proposal. + +`Then the Dormouse shall!' they both cried. `Wake up, Dormouse!' And they pinched it on both sides at once. + +The Dormouse slowly opened his eyes. `I wasn't asleep,' he said in a hoarse, feeble voice: `I heard every word you fellows were saying.' + +`Tell us a story!' said the March Hare. + +`Yes, please do!' pleaded Alice. + +`And be quick about it,' added the Hatter, `or you'll be asleep again before it's done.' + +`Once upon a time there were three little sisters,' the Dormouse began in a great hurry; `and their names were Elsie, Lacie, and Tillie; and they lived at the bottom of a well--' + +`What did they live on?' said Alice, who always took a great interest in questions of eating and drinking. + +`They lived on treacle,' said the Dormouse, after thinking a minute or two. + +`They couldn't have done that, you know,' Alice gently remarked; `they'd have been ill.' + +`So they were,' said the Dormouse; `VERY ill.' + +Alice tried to fancy to herself what such an extraordinary ways of living would be like, but it puzzled her too much, so she went on: `But why did they live at the bottom of a well?' + +`Take some more tea,' the March Hare said to Alice, very earnestly. + +`I've had nothing yet,' Alice replied in an offended tone, `so I can't take more.' + +`You mean you can't take LESS,' said the Hatter: `it's very easy to take MORE than nothing.' + +`Nobody asked YOUR opinion,' said Alice. + +`Who's making personal remarks now?' the Hatter asked triumphantly. + +Alice did not quite know what to say to this: so she helped herself to some tea and bread-and-butter, and then turned to the Dormouse, and repeated her question. `Why did they live at the bottom of a well?' + +The Dormouse again took a minute or two to think about it, and then said, `It was a treacle-well.' + +`There's no such thing!' Alice was beginning very angrily, but the Hatter and the March Hare went `Sh! sh!' and the Dormouse sulkily remarked, `If you can't be civil, you'd better finish the story for yourself.' + +`No, please go on!' Alice said very humbly; `I won't interrupt again. I dare say there may be ONE.' + +`One, indeed!' said the Dormouse indignantly. However, he consented to go on. `And so these three little sisters--they were learning to draw, you know--' + +`What did they draw?' said Alice, quite forgetting her promise. + +`Treacle,' said the Dormouse, without considering at all this time. + +`I want a clean cup,' interrupted the Hatter: `let's all move one place on.' + +He moved on as he spoke, and the Dormouse followed him: the March Hare moved into the Dormouse's place, and Alice rather unwillingly took the place of the March Hare. The Hatter was the only one who got any advantage from the change: and Alice was a good deal worse off than before, as the March Hare had just upset the milk-jug into his plate. + +Alice did not wish to offend the Dormouse again, so she began very cautiously: `But I don't understand. Where did they draw the treacle from?' + +`You can draw water out of a water-well,' said the Hatter; `so I should think you could draw treacle out of a treacle-well--eh, stupid?' + +`But they were IN the well,' Alice said to the Dormouse, not choosing to notice this last remark. + +`Of course they were', said the Dormouse; `--well in.' + +This answer so confused poor Alice, that she let the Dormouse go on for some time without interrupting it. + +`They were learning to draw,' the Dormouse went on, yawning and rubbing its eyes, for it was getting very sleepy; `and they drew all manner of things--everything that begins with an M--' + +`Why with an M?' said Alice. + +`Why not?' said the March Hare. + +Alice was silent. + +The Dormouse had closed its eyes by this time, and was going off into a doze; but, on being pinched by the Hatter, it woke up again with a little shriek, and went on: `--that begins with an M, such as mouse-traps, and the moon, and memory, and muchness-- you know you say things are "much of a muchness"--did you ever see such a thing as a drawing of a muchness?' + +`Really, now you ask me,' said Alice, very much confused, `I don't think--' + +`Then you shouldn't talk,' said the Hatter. + +This piece of rudeness was more than Alice could bear: she got up in great disgust, and walked off; the Dormouse fell asleep instantly, and neither of the others took the least notice of her going, though she looked back once or twice, half hoping that they would call after her: the last time she saw them, they were trying to put the Dormouse into the teapot. + +`At any rate I'll never go THERE again!' said Alice as she picked her way through the wood. `It's the stupidest tea-party I ever was at in all my life!' + +Just as she said this, she noticed that one of the trees had a door leading right into it. `That's very curious!' she thought. `But everything's curious today. I think I may as well go in at once.' And in she went. + +Once more she found herself in the long hall, and close to the little glass table. `Now, I'll manage better this time,' she said to herself, and began by taking the little golden key, and unlocking the door that led into the garden. Then she went to work nibbling at the mushroom (she had kept a piece of it in her pocket) till she was about a foot high: then she walked down the little passage: and THEN--she found herself at last in the beautiful garden, among the bright flower-beds and the cool fountains. + +CHAPTER VIII - The Queen's Croquet-Ground + +A large rose-tree stood near the entrance of the garden: the roses growing on it were white, but there were three gardeners at it, busily painting them red. Alice thought this a very curious thing, and she went nearer to watch them, and just as she came up to them she heard one of them say, `Look out now, Five! Don't go splashing paint over me like that!' + +`I couldn't help it,' said Five, in a sulky tone; `Seven jogged my elbow.' + +On which Seven looked up and said, `That's right, Five! Always lay the blame on others!' + +`YOU'D better not talk!' said Five. `I heard the Queen say only yesterday you deserved to be beheaded!' + +`What for?' said the one who had spoken first. + +`That's none of YOUR business, Two!' said Seven. + +`Yes, it IS his business!' said Five, `and I'll tell him--it was for bringing the cook tulip-roots instead of onions.' + +Seven flung down his brush, and had just begun `Well, of all the unjust things--' when his eye chanced to fall upon Alice, as she stood watching them, and he checked himself suddenly: the others looked round also, and all of them bowed low. + +`Would you tell me,' said Alice, a little timidly, `why you are painting those roses?' + +Five and Seven said nothing, but looked at Two. Two began in a low voice, `Why the fact is, you see, Miss, this here ought to have been a RED rose-tree, and we put a white one in by mistake; and if the Queen was to find it out, we should all have our heads cut off, you know. So you see, Miss, we're doing our best, afore she comes, to--' At this moment Five, who had been anxiously looking across the garden, called out `The Queen! The Queen!' and the three gardeners instantly threw themselves flat upon their faces. There was a sound of many footsteps, and Alice looked round, eager to see the Queen. + +First came ten soldiers carrying clubs; these were all shaped like the three gardeners, oblong and flat, with their hands and feet at the corners: next the ten courtiers; these were ornamented all over with diamonds, and walked two and two, as the soldiers did. After these came the royal children; there were ten of them, and the little dears came jumping merrily along hand in hand, in couples: they were all ornamented with hearts. Next came the guests, mostly Kings and Queens, and among them Alice recognised the White Rabbit: it was talking in a hurried nervous manner, smiling at everything that was said, and went by without noticing her. Then followed the Knave of Hearts, carrying the King's crown on a crimson velvet cushion; and, last of all this grand procession, came THE KING AND QUEEN OF HEARTS. + +Alice was rather doubtful whether she ought not to lie down on her face like the three gardeners, but she could not remember ever having heard of such a rule at processions; `and besides, what would be the use of a procession,' thought she, `if people had all to lie down upon their faces, so that they couldn't see it?' So she stood still where she was, and waited. + +When the procession came opposite to Alice, they all stopped and looked at her, and the Queen said severely `Who is this?' She said it to the Knave of Hearts, who only bowed and smiled in reply. + +`Idiot!' said the Queen, tossing her head impatiently; and, turning to Alice, she went on, `What's your name, child?' + +`My name is Alice, so please your Majesty,' said Alice very politely; but she added, to herself, `Why, they're only a pack of cards, after all. I needn't be afraid of them!' + +`And who are THESE?' said the Queen, pointing to the three gardeners who were lying round the rosetree; for, you see, as they were lying on their faces, and the pattern on their backs was the same as the rest of the pack, she could not tell whether they were gardeners, or soldiers, or courtiers, or three of her own children. + +`How should I know?' said Alice, surprised at her own courage. `It's no business of MINE.' + +The Queen turned crimson with fury, and, after glaring at her for a moment like a wild beast, screamed `Off with her head! Off--' + +`Nonsense!' said Alice, very loudly and decidedly, and the Queen was silent. + +The King laid his hand upon her arm, and timidly said `Consider, my dear: she is only a child!' + +The Queen turned angrily away from him, and said to the Knave `Turn them over!' + +The Knave did so, very carefully, with one foot. + +`Get up!' said the Queen, in a shrill, loud voice, and the three gardeners instantly jumped up, and began bowing to the King, the Queen, the royal children, and everybody else. + +`Leave off that!' screamed the Queen. `You make me giddy.' And then, turning to the rose-tree, she went on, `What HAVE you been doing here?' + +`May it please your Majesty,' said Two, in a very humble tone, going down on one knee as he spoke, `we were trying--' + +`I see!' said the Queen, who had meanwhile been examining the roses. `Off with their heads!' and the procession moved on, three of the soldiers remaining behind to execute the unfortunate gardeners, who ran to Alice for protection. + +`You shan't be beheaded!' said Alice, and she put them into a large flower-pot that stood near. The three soldiers wandered about for a minute or two, looking for them, and then quietly marched off after the others. + +`Are their heads off?' shouted the Queen. + +`Their heads are gone, if it please your Majesty!' the soldiers shouted in reply. + +`That's right!' shouted the Queen. `Can you play croquet?' + +The soldiers were silent, and looked at Alice, as the question was evidently meant for her. + +`Yes!' shouted Alice. + +`Come on, then!' roared the Queen, and Alice joined the procession, wondering very much what would happen next. + +`It's--it's a very fine day!' said a timid voice at her side. She was walking by the White Rabbit, who was peeping anxiously into her face. + +`Very,' said Alice: `--where's the Duchess?' + +`Hush! Hush!' said the Rabbit in a low, hurried tone. He looked anxiously over his shoulder as he spoke, and then raised himself upon tiptoe, put his mouth close to her ear, and whispered `She's under sentence of execution.' + +`What for?' said Alice. + +`Did you say "What a pity!"?' the Rabbit asked. + +`No, I didn't,' said Alice: `I don't think it's at all a pity. I said "What for?"' + +`She boxed the Queen's ears--' the Rabbit began. Alice gave a little scream of laughter. `Oh, hush!' the Rabbit whispered in a frightened tone. `The Queen will hear you! You see, she came rather late, and the Queen said--' + +`Get to your places!' shouted the Queen in a voice of thunder, and people began running about in all directions, tumbling up against each other; however, they got settled down in a minute or two, and the game began. Alice thought she had never seen such a curious croquet-ground in her life; it was all ridges and furrows; the balls were live hedgehogs, the mallets live flamingoes, and the soldiers had to double themselves up and to stand on their hands and feet, to make the arches. + +The chief difficulty Alice found at first was in managing her flamingo: she succeeded in getting its body tucked away, comfortably enough, under her arm, with its legs hanging down, but generally, just as she had got its neck nicely straightened out, and was going to give the hedgehog a blow with its head, it WOULD twist itself round and look up in her face, with such a puzzled expression that she could not help bursting out laughing: and when she had got its head down, and was going to begin again, it was very provoking to find that the hedgehog had unrolled itself, and was in the act of crawling away: besides all this, there was generally a ridge or furrow in the way wherever she wanted to send the hedgehog to, and, as the doubled-up soldiers were always getting up and walking off to other parts of the ground, Alice soon came to the conclusion that it was a very difficult game indeed. + +The players all played at once without waiting for turns, quarrelling all the while, and fighting for the hedgehogs; and in a very short time the Queen was in a furious passion, and went stamping about, and shouting `Off with his head!' or `Off with her head!' about once in a minute. + +Alice began to feel very uneasy: to be sure, she had not as yet had any dispute with the Queen, but she knew that it might happen any minute, `and then,' thought she, `what would become of me? They're dreadfully fond of beheading people here; the great wonder is, that there's any one left alive!' + +She was looking about for some way of escape, and wondering whether she could get away without being seen, when she noticed a curious appearance in the air: it puzzled her very much at first, but, after watching it a minute or two, she made it out to be a grin, and she said to herself `It's the Cheshire Cat: now I shall have somebody to talk to.' + +`How are you getting on?' said the Cat, as soon as there was mouth enough for it to speak with. + +Alice waited till the eyes appeared, and then nodded. `It's no use speaking to it,' she thought, `till its ears have come, or at least one of them.' In another minute the whole head appeared, and then Alice put down her flamingo, and began an account of the game, feeling very glad she had someone to listen to her. The Cat seemed to think that there was enough of it now in sight, and no more of it appeared. + +`I don't think they play at all fairly,' Alice began, in rather a complaining tone, `and they all quarrel so dreadfully one can't hear oneself speak--and they don't seem to have any rules in particular; at least, if there are, nobody attends to them--and you've no idea how confusing it is all the things being alive; for instance, there's the arch I've got to go through next walking about at the other end of the ground--and I should have croqueted the Queen's hedgehog just now, only it ran away when it saw mine coming!' + +`How do you like the Queen?' said the Cat in a low voice. + +`Not at all,' said Alice: `she's so extremely--' Just then she noticed that the Queen was close behind her, listening: so she went on, `--likely to win, that it's hardly worth while finishing the game.' + +The Queen smiled and passed on. + +`Who ARE you talking to?' said the King, going up to Alice, and looking at the Cat's head with great curiosity. + +`It's a friend of mine--a Cheshire Cat,' said Alice: `allow me to introduce it.' + +`I don't like the look of it at all,' said the King: `however, it may kiss my hand if it likes.' + +`I'd rather not,' the Cat remarked. + +`Don't be impertinent,' said the King, `and don't look at me like that!' He got behind Alice as he spoke. + +`A cat may look at a king,' said Alice. `I've read that in some book, but I don't remember where.' + +`Well, it must be removed,' said the King very decidedly, and he called the Queen, who was passing at the moment, `My dear! I wish you would have this cat removed!' + +The Queen had only one way of settling all difficulties, great or small. `Off with his head!' she said, without even looking round. + +`I'll fetch the executioner myself,' said the King eagerly, and he hurried off. + +Alice thought she might as well go back, and see how the game was going on, as she heard the Queen's voice in the distance, screaming with passion. She had already heard her sentence three of the players to be executed for having missed their turns, and she did not like the look of things at all, as the game was in such confusion that she never knew whether it was her turn or not. So she went in search of her hedgehog. + +The hedgehog was engaged in a fight with another hedgehog, which seemed to Alice an excellent opportunity for croqueting one of them with the other: the only difficulty was, that her flamingo was gone across to the other side of the garden, where Alice could see it trying in a helpless sort of way to fly up into a tree. + +By the time she had caught the flamingo and brought it back, the fight was over, and both the hedgehogs were out of sight: `but it doesn't matter much,' thought Alice, `as all the arches are gone from this side of the ground.' So she tucked it away under her arm, that it might not escape again, and went back for a little more conversation with her friend. + +When she got back to the Cheshire Cat, she was surprised to find quite a large crowd collected round it: there was a dispute going on between the executioner, the King, and the Queen, who were all talking at once, while all the rest were quite silent, and looked very uncomfortable. + +The moment Alice appeared, she was appealed to by all three to settle the question, and they repeated their arguments to her, though, as they all spoke at once, she found it very hard indeed to make out exactly what they said. + +The executioner's argument was, that you couldn't cut off a head unless there was a body to cut it off from: that he had never had to do such a thing before, and he wasn't going to begin at HIS time of life. + +The King's argument was, that anything that had a head could be beheaded, and that you weren't to talk nonsense. + +The Queen's argument was, that if something wasn't done about it in less than no time she'd have everybody executed, all round. (It was this last remark that had made the whole party look so grave and anxious.) + +Alice could think of nothing else to say but `It belongs to the Duchess: you'd better ask HER about it.' + +`She's in prison,' the Queen said to the executioner: `fetch her here.' And the executioner went off like an arrow. + +The Cat's head began fading away the moment he was gone, and, by the time he had come back with the Duchess, it had entirely disappeared; so the King and the executioner ran wildly up and down looking for it, while the rest of the party went back to the game. + +CHAPTER IX - The Mock Turtle's Story + +`You can't think how glad I am to see you again, you dear old thing!' said the Duchess, as she tucked her arm affectionately into Alice's, and they walked off together. + +Alice was very glad to find her in such a pleasant temper, and thought to herself that perhaps it was only the pepper that had made her so savage when they met in the kitchen. + +`When I'M a Duchess,' she said to herself, (not in a very hopeful tone though), `I won't have any pepper in my kitchen AT ALL. Soup does very well without--Maybe it's always pepper that makes people hot-tempered,' she went on, very much pleased at having found out a new kind of rule, `and vinegar that makes them sour--and camomile that makes them bitter--and--and barley-sugar and such things that make children sweet-tempered. I only wish people knew that: then they wouldn't be so stingy about it, you know--' + +She had quite forgotten the Duchess by this time, and was a little startled when she heard her voice close to her ear. `You're thinking about something, my dear, and that makes you forget to talk. I can't tell you just now what the moral of that is, but I shall remember it in a bit.' + +`Perhaps it hasn't one,' Alice ventured to remark. + +`Tut, tut, child!' said the Duchess. `Everything's got a moral, if only you can find it.' And she squeezed herself up closer to Alice's side as she spoke. + +Alice did not much like keeping so close to her: first, because the Duchess was VERY ugly; and secondly, because she was exactly the right height to rest her chin upon Alice's shoulder, and it was an uncomfortably sharp chin. However, she did not like to be rude, so she bore it as well as she could. + +`The game's going on rather better now,' she said, by way of keeping up the conversation a little. + +`'Tis so,' said the Duchess: `and the moral of that is--"Oh, 'tis love, 'tis love, that makes the world go round!"' + +`Somebody said,' Alice whispered, `that it's done by everybody minding their own business!' + +`Ah, well! It means much the same thing,' said the Duchess, digging her sharp little chin into Alice's shoulder as she added, `and the moral of THAT is--"Take care of the sense, and the sounds will take care of themselves."' + +`How fond she is of finding morals in things!' Alice thought to herself. + +`I dare say you're wondering why I don't put my arm round your waist,' the Duchess said after a pause: `the reason is, that I'm doubtful about the temper of your flamingo. Shall I try the experiment?' + +`HE might bite,' Alice cautiously replied, not feeling at all anxious to have the experiment tried. + +`Very true,' said the Duchess: `flamingoes and mustard both bite. And the moral of that is--"Birds of a feather flock together."' + +`Only mustard isn't a bird,' Alice remarked. + +`Right, as usual,' said the Duchess: `what a clear way you have of putting things!' + +`It's a mineral, I THINK,' said Alice. + +`Of course it is,' said the Duchess, who seemed ready to agree to everything that Alice said; `there's a large mustard-mine near here. And the moral of that is--"The more there is of mine, the less there is of yours."' + +`Oh, I know!' exclaimed Alice, who had not attended to this last remark, `it's a vegetable. It doesn't look like one, but it is.' + +`I quite agree with you,' said the Duchess; `and the moral of that is--"Be what you would seem to be"--or if you'd like it put more simply--"Never imagine yourself not to be otherwise than what it might appear to others that what you were or might have been was not otherwise than what you had been would have appeared to them to be otherwise."' + +`I think I should understand that better,' Alice said very politely, `if I had it written down: but I can't quite follow it as you say it.' + +`That's nothing to what I could say if I chose,' the Duchess replied, in a pleased tone. + +`Pray don't trouble yourself to say it any longer than that,' said Alice. + +`Oh, don't talk about trouble!' said the Duchess. `I make you a present of everything I've said as yet.' + +`A cheap sort of present!' thought Alice. `I'm glad they don't give birthday presents like that!' But she did not venture to say it out loud. + +`Thinking again?' the Duchess asked, with another dig of her sharp little chin. + +`I've a right to think,' said Alice sharply, for she was beginning to feel a little worried. + +`Just about as much right,' said the Duchess, `as pigs have to fly; and the m--' + +But here, to Alice's great surprise, the Duchess's voice died away, even in the middle of her favourite word `moral,' and the arm that was linked into hers began to tremble. Alice looked up, and there stood the Queen in front of them, with her arms folded, frowning like a thunderstorm. + +`A fine day, your Majesty!' the Duchess began in a low, weak voice. + +`Now, I give you fair warning,' shouted the Queen, stamping on the ground as she spoke; `either you or your head must be off, and that in about half no time! Take your choice!' + +The Duchess took her choice, and was gone in a moment. + +`Let's go on with the game,' the Queen said to Alice; and Alice was too much frightened to say a word, but slowly followed her back to the croquet-ground. + +The other guests had taken advantage of the Queen's absence, and were resting in the shade: however, the moment they saw her, they hurried back to the game, the Queen merely remarking that a moment's delay would cost them their lives. + +All the time they were playing the Queen never left off quarrelling with the other players, and shouting `Off with his head!' or `Off with her head!' Those whom she sentenced were taken into custody by the soldiers, who of course had to leave off being arches to do this, so that by the end of half an hour or so there were no arches left, and all the players, except the King, the Queen, and Alice, were in custody and under sentence of execution. + +Then the Queen left off, quite out of breath, and said to Alice, `Have you seen the Mock Turtle yet?' + +`No,' said Alice. `I don't even know what a Mock Turtle is.' + +`It's the thing Mock Turtle Soup is made from,' said the Queen. + +`I never saw one, or heard of one,' said Alice. + +`Come on, then,' said the Queen, `and he shall tell you his history,' + +As they walked off together, Alice heard the King say in a low voice, to the company generally, `You are all pardoned.' `Come, THAT'S a good thing!' she said to herself, for she had felt quite unhappy at the number of executions the Queen had ordered. + +They very soon came upon a Gryphon, lying fast asleep in the sun. (IF you don't know what a Gryphon is, look at the picture.) `Up, lazy thing!' said the Queen, `and take this young lady to see the Mock Turtle, and to hear his history. I must go back and see after some executions I have ordered'; and she walked off, leaving Alice alone with the Gryphon. Alice did not quite like the look of the creature, but on the whole she thought it would be quite as safe to stay with it as to go after that savage Queen: so she waited. + +The Gryphon sat up and rubbed its eyes: then it watched the Queen till she was out of sight: then it chuckled. `What fun!' said the Gryphon, half to itself, half to Alice. + +`What IS the fun?' said Alice. + +`Why, SHE,' said the Gryphon. `It's all her fancy, that: they never executes nobody, you know. Come on!' + +`Everybody says "come on!" here,' thought Alice, as she went slowly after it: `I never was so ordered about in all my life, never!' + +They had not gone far before they saw the Mock Turtle in the distance, sitting sad and lonely on a little ledge of rock, and, as they came nearer, Alice could hear him sighing as if his heart would break. She pitied him deeply. `What is his sorrow?' she asked the Gryphon, and the Gryphon answered, very nearly in the same words as before, `It's all his fancy, that: he hasn't got no sorrow, you know. Come on!' + +So they went up to the Mock Turtle, who looked at them with large eyes full of tears, but said nothing. + +`This here young lady,' said the Gryphon, `she wants for to know your history, she do.' + +`I'll tell it her,' said the Mock Turtle in a deep, hollow tone: `sit down, both of you, and don't speak a word till I've finished.' + +So they sat down, and nobody spoke for some minutes. Alice thought to herself, `I don't see how he can EVEN finish, if he doesn't begin.' But she waited patiently. + +`Once,' said the Mock Turtle at last, with a deep sigh, `I was a real Turtle.' + +These words were followed by a very long silence, broken only by an occasional exclamation of `Hjckrrh!' from the Gryphon, and the constant heavy sobbing of the Mock Turtle. Alice was very nearly getting up and saying, `Thank you, sir, for your interesting story,' but she could not help thinking there MUST be more to come, so she sat still and said nothing. + +`When we were little,' the Mock Turtle went on at last, more calmly, though still sobbing a little now and then, `we went to school in the sea. The master was an old Turtle--we used to call him Tortoise--' + +`Why did you call him Tortoise, if he wasn't one?' Alice asked. + +`We called him Tortoise because he taught us,' said the Mock Turtle angrily: `really you are very dull!' + +`You ought to be ashamed of yourself for asking such a simple question,' added the Gryphon; and then they both sat silent and looked at poor Alice, who felt ready to sink into the earth. At last the Gryphon said to the Mock Turtle, `Drive on, old fellow! Don't be all day about it!' and he went on in these words: + +`Yes, we went to school in the sea, though you mayn't believe it--' + +`I never said I didn't!' interrupted Alice. + +`You did,' said the Mock Turtle. + +`Hold your tongue!' added the Gryphon, before Alice could speak again. The Mock Turtle went on. + +`We had the best of educations--in fact, we went to school every day--' + +`I'VE been to a day-school, too,' said Alice; `you needn't be so proud as all that.' + +`With extras?' asked the Mock Turtle a little anxiously. + +`Yes,' said Alice, `we learned French and music.' + +`And washing?' said the Mock Turtle. + +`Certainly not!' said Alice indignantly. + +`Ah! then yours wasn't a really good school,' said the Mock Turtle in a tone of great relief. `Now at OURS they had at the end of the bill, "French, music, AND WASHING--extra."' + +`You couldn't have wanted it much,' said Alice; `living at the bottom of the sea.' + +`I couldn't afford to learn it.' said the Mock Turtle with a sigh. `I only took the regular course.' + +`What was that?' inquired Alice. + +`Reeling and Writhing, of course, to begin with,' the Mock Turtle replied; `and then the different branches of Arithmetic-- Ambition, Distraction, Uglification, and Derision.' + +`I never heard of "Uglification,"' Alice ventured to say. `What is it?' + +The Gryphon lifted up both its paws in surprise. `What! Never heard of uglifying!' it exclaimed. `You know what to beautify is, I suppose?' + +`Yes,' said Alice doubtfully: `it means--to--make--anything--prettier.' + +`Well, then,' the Gryphon went on, `if you don't know what to uglify is, you ARE a simpleton.' + +Alice did not feel encouraged to ask any more questions about it, so she turned to the Mock Turtle, and said `What else had you to learn?' + +`Well, there was Mystery,' the Mock Turtle replied, counting off the subjects on his flappers, `--Mystery, ancient and modern, with Seaography: then Drawling--the Drawling-master was an old conger-eel, that used to come once a week: HE taught us Drawling, Stretching, and Fainting in Coils.' + +`What was THAT like?' said Alice. + +`Well, I can't show it you myself,' the Mock Turtle said: `I'm too stiff. And the Gryphon never learnt it.' + +`Hadn't time,' said the Gryphon: `I went to the Classics master, though. He was an old crab, HE was.' + +`I never went to him,' the Mock Turtle said with a sigh: `he taught Laughing and Grief, they used to say.' + +`So he did, so he did,' said the Gryphon, sighing in his turn; and both creatures hid their faces in their paws. + +`And how many hours a day did you do lessons?' said Alice, in a hurry to change the subject. + +`Ten hours the first day,' said the Mock Turtle: `nine the next, and so on.' + +`What a curious plan!' exclaimed Alice. + +`That's the reason they're called lessons,' the Gryphon remarked: `because they lessen from day to day.' + +This was quite a new idea to Alice, and she thought it over a little before she made her next remark. `Then the eleventh day must have been a holiday?' + +`Of course it was,' said the Mock Turtle. + +`And how did you manage on the twelfth?' Alice went on eagerly. + +`That's enough about lessons,' the Gryphon interrupted in a very decided tone: `tell her something about the games now.' + +CHAPTER X - The Lobster Quadrille + +The Mock Turtle sighed deeply, and drew the back of one flapper across his eyes. He looked at Alice, and tried to speak, but for a minute or two sobs choked his voice. `Same as if he had a bone in his throat,' said the Gryphon: and it set to work shaking him and punching him in the back. At last the Mock Turtle recovered his voice, and, with tears running down his cheeks, he went on again:-- + +`You may not have lived much under the sea--' (`I haven't,' said Alice)-- `and perhaps you were never even introduced to a lobster--' (Alice began to say `I once tasted--' but checked herself hastily, and said `No, never') `--so you can have no idea what a delightful thing a Lobster Quadrille is!' + +`No, indeed,' said Alice. `What sort of a dance is it?' + +`Why,' said the Gryphon, `you first form into a line along the sea-shore--' + +`Two lines!' cried the Mock Turtle. `Seals, turtles, salmon, and so on; then, when you've cleared all the jelly-fish out of the way--' + +`THAT generally takes some time,' interrupted the Gryphon. + +`--you advance twice--' + +`Each with a lobster as a partner!' cried the Gryphon. + +`Of course,' the Mock Turtle said: `advance twice, set to partners--' + +`--change lobsters, and retire in same order,' continued the Gryphon. + +`Then, you know,' the Mock Turtle went on, `you throw the--' + +`The lobsters!' shouted the Gryphon, with a bound into the air. + +`--as far out to sea as you can--' + +`Swim after them!' screamed the Gryphon. + +`Turn a somersault in the sea!' cried the Mock Turtle, capering wildly about. + +`Change lobsters again!' yelled the Gryphon at the top of its voice. + +`Back to land again, and that's all the first figure,' said the Mock Turtle, suddenly dropping his voice; and the two creatures, who had been jumping about like mad things all this time, sat down again very sadly and quietly, and looked at Alice. + +`It must be a very pretty dance,' said Alice timidly. + +`Would you like to see a little of it?' said the Mock Turtle. + +`Very much indeed,' said Alice. + +`Come, let's try the first figure!' said the Mock Turtle to the Gryphon. `We can do without lobsters, you know. Which shall sing?' + +`Oh, YOU sing,' said the Gryphon. `I've forgotten the words.' + +So they began solemnly dancing round and round Alice, every now and then treading on her toes when they passed too close, and waving their forepaws to mark the time, while the Mock Turtle sang this, very slowly and sadly:-- + +poem{ + +`"Will you walk a little faster?" said a whiting to a snail. +"There's a porpoise close behind us, and he's treading on my + tail. +See how eagerly the lobsters and the turtles all advance! +They are waiting on the shingle--will you come and join the +dance? + +Will you, won't you, will you, won't you, will you join the +dance? +Will you, won't you, will you, won't you, won't you join the +dance? + +"You can really have no notion how delightful it will be +When they take us up and throw us, with the lobsters, out to + sea!" +But the snail replied "Too far, too far!" and gave a look + askance-- +Said he thanked the whiting kindly, but he would not join the + dance. + Would not, could not, would not, could not, would not join + the dance. + Would not, could not, would not, could not, could not join + the dance. + +`"What matters it how far we go?" his scaly friend replied. +"There is another shore, you know, upon the other side. +The further off from England the nearer is to France-- +Then turn not pale, beloved snail, but come and join the dance. + + Will you, won't you, will you, won't you, will you join the + dance? + Will you, won't you, will you, won't you, won't you join the + dance?"' + +}poem + +`Thank you, it's a very interesting dance to watch,' said Alice, feeling very glad that it was over at last: `and I do so like that curious song about the whiting!' + +`Oh, as to the whiting,' said the Mock Turtle, `they--you've seen them, of course?' + +`Yes,' said Alice, `I've often seen them at dinn--' she checked herself hastily. + +`I don't know where Dinn may be,' said the Mock Turtle, `but if you've seen them so often, of course you know what they're like.' + +`I believe so,' Alice replied thoughtfully. `They have their tails in their mouths--and they're all over crumbs.' + +`You're wrong about the crumbs,' said the Mock Turtle: `crumbs would all wash off in the sea. But they HAVE their tails in their mouths; and the reason is--' here the Mock Turtle yawned and shut his eyes.--`Tell her about the reason and all that,' he said to the Gryphon. + +`The reason is,' said the Gryphon, `that they WOULD go with the lobsters to the dance. So they got thrown out to sea. So they had to fall a long way. So they got their tails fast in their mouths. So they couldn't get them out again. That's all.' + +`Thank you,' said Alice, `it's very interesting. I never knew so much about a whiting before.' + +`I can tell you more than that, if you like,' said the Gryphon. `Do you know why it's called a whiting?' + +`I never thought about it,' said Alice. `Why?' + +`IT DOES THE BOOTS AND SHOES.' the Gryphon replied very solemnly. + +Alice was thoroughly puzzled. `Does the boots and shoes!' she repeated in a wondering tone. + +`Why, what are YOUR shoes done with?' said the Gryphon. `I mean, what makes them so shiny?' + +Alice looked down at them, and considered a little before she gave her answer. `They're done with blacking, I believe.' + +`Boots and shoes under the sea,' the Gryphon went on in a deep voice, `are done with a whiting. Now you know.' + +`And what are they made of?' Alice asked in a tone of great curiosity. + +`Soles and eels, of course,' the Gryphon replied rather impatiently: `any shrimp could have told you that.' + +`If I'd been the whiting,' said Alice, whose thoughts were still running on the song, `I'd have said to the porpoise, "Keep back, please: we don't want YOU with us!"' + +`They were obliged to have him with them,' the Mock Turtle said: `no wise fish would go anywhere without a porpoise.' + +`Wouldn't it really?' said Alice in a tone of great surprise. + +`Of course not,' said the Mock Turtle: `why, if a fish came to ME, and told me he was going a journey, I should say "With what porpoise?"' + +`Don't you mean "purpose"?' said Alice. + +`I mean what I say,' the Mock Turtle replied in an offended tone. And the Gryphon added `Come, let's hear some of YOUR adventures.' + +`I could tell you my adventures--beginning from this morning,' said Alice a little timidly: `but it's no use going back to yesterday, because I was a different person then.' + +`Explain all that,' said the Mock Turtle. + +`No, no! The adventures first,' said the Gryphon in an impatient tone: `explanations take such a dreadful time.' + +So Alice began telling them her adventures from the time when she first saw the White Rabbit. She was a little nervous about it just at first, the two creatures got so close to her, one on each side, and opened their eyes and mouths so VERY wide, but she gained courage as she went on. Her listeners were perfectly quiet till she got to the part about her repeating `YOU ARE OLD, FATHER WILLIAM,' to the Caterpillar, and the words all coming different, and then the Mock Turtle drew a long breath, and said `That's very curious.' + +`It's all about as curious as it can be,' said the Gryphon. + +`It all came different!' the Mock Turtle repeated thoughtfully. `I should like to hear her try and repeat something now. Tell her to begin.' He looked at the Gryphon as if he thought it had some kind of authority over Alice. + +`Stand up and repeat "'TIS THE VOICE OF THE SLUGGARD,"' said the Gryphon. + +`How the creatures order one about, and make one repeat lessons!' thought Alice; `I might as well be at school at once.' However, she got up, and began to repeat it, but her head was so full of the Lobster Quadrille, that she hardly knew what she was saying, and the words came very queer indeed:-- + +poem{ + + `'Tis the voice of the Lobster; I heard him declare, + "You have baked me too brown, I must sugar my hair." + As a duck with its eyelids, so he with his nose + Trims his belt and his buttons, and turns out his toes.' + + [later editions continued as follows + When the sands are all dry, he is gay as a lark, + And will talk in contemptuous tones of the Shark, + But, when the tide rises and sharks are around, + His voice has a timid and tremulous sound.] + +}poem + +`That's different from what I used to say when I was a child,' said the Gryphon. + +`Well, I never heard it before,' said the Mock Turtle; `but it sounds uncommon nonsense.' + +Alice said nothing; she had sat down with her face in her hands, wondering if anything would EVER happen in a natural way again. + +`I should like to have it explained,' said the Mock Turtle. + +`She can't explain it,' said the Gryphon hastily. `Go on with the next verse.' + +`But about his toes?' the Mock Turtle persisted. `How COULD he turn them out with his nose, you know?' + +`It's the first position in dancing.' Alice said; but was dreadfully puzzled by the whole thing, and longed to change the subject. + +`Go on with the next verse,' the Gryphon repeated impatiently: `it begins "I passed by his garden."' + +Alice did not dare to disobey, though she felt sure it would all come wrong, and she went on in a trembling voice:-- + +poem{ + + `I passed by his garden, and marked, with one eye, + How the Owl and the Panther were sharing a pie--' + + [later editions continued as follows + The Panther took pie-crust, and gravy, and meat, + While the Owl had the dish as its share of the treat. + When the pie was all finished, the Owl, as a boon, + Was kindly permitted to pocket the spoon: + While the Panther received knife and fork with a growl, + And concluded the banquet--] + +}poem + +`What IS the use of repeating all that stuff,' the Mock Turtle interrupted, `if you don't explain it as you go on? It's by far the most confusing thing I ever heard!' + +`Yes, I think you'd better leave off,' said the Gryphon: and Alice was only too glad to do so. + +`Shall we try another figure of the Lobster Quadrille?' the Gryphon went on. `Or would you like the Mock Turtle to sing you a song?' + +`Oh, a song, please, if the Mock Turtle would be so kind,' Alice replied, so eagerly that the Gryphon said, in a rather offended tone, `Hm! No accounting for tastes! Sing her "Turtle Soup," will you, old fellow?' + +The Mock Turtle sighed deeply, and began, in a voice sometimes choked with sobs, to sing this:-- + +poem{ + + `Beautiful Soup, so rich and green, + Waiting in a hot tureen! + Who for such dainties would not stoop? + Soup of the evening, beautiful Soup! + Soup of the evening, beautiful Soup! + Beau--ootiful Soo--oop! + Beau--ootiful Soo--oop! + Soo--oop of the e--e--evening, + Beautiful, beautiful Soup! + + `Beautiful Soup! Who cares for fish, + Game, or any other dish? + Who would not give all else for two + Pennyworth only of beautiful Soup? + Pennyworth only of beautiful Soup? + Beau--ootiful Soo--oop! + Beau--ootiful Soo--oop! + Soo--oop of the e--e--evening, + Beautiful, beauti--FUL SOUP!' + +}poem + +`Chorus again!' cried the Gryphon, and the Mock Turtle had just begun to repeat it, when a cry of `The trial's beginning!' was heard in the distance. + +`Come on!' cried the Gryphon, and, taking Alice by the hand, it hurried off, without waiting for the end of the song. + +`What trial is it?' Alice panted as she ran; but the Gryphon only answered `Come on!' and ran the faster, while more and more faintly came, carried on the breeze that followed them, the melancholy words:-- + +poem{ + + `Soo--oop of the e--e--evening, + Beautiful, beautiful Soup!' + +}poem + +CHAPTER XI - Who Stole the Tarts? + +The King and Queen of Hearts were seated on their throne when they arrived, with a great crowd assembled about them--all sorts of little birds and beasts, as well as the whole pack of cards: the Knave was standing before them, in chains, with a soldier on each side to guard him; and near the King was the White Rabbit, with a trumpet in one hand, and a scroll of parchment in the other. In the very middle of the court was a table, with a large dish of tarts upon it: they looked so good, that it made Alice quite hungry to look at them--`I wish they'd get the trial done,' she thought, `and hand round the refreshments!' But there seemed to be no chance of this, so she began looking at everything about her, to pass away the time. + +Alice had never been in a court of justice before, but she had read about them in books, and she was quite pleased to find that she knew the name of nearly everything there. `That's the judge,' she said to herself, `because of his great wig.' + +The judge, by the way, was the King; and as he wore his crown over the wig, (look at the frontispiece if you want to see how he did it,) he did not look at all comfortable, and it was certainly not becoming. + +`And that's the jury-box,' thought Alice, `and those twelve creatures,' (she was obliged to say `creatures,' you see, because some of them were animals, and some were birds,) `I suppose they are the jurors.' She said this last word two or three times over to herself, being rather proud of it: for she thought, and rightly too, that very few little girls of her age knew the meaning of it at all. However, `jury-men' would have done just as well. + +The twelve jurors were all writing very busily on slates. `What are they doing?' Alice whispered to the Gryphon. `They can't have anything to put down yet, before the trial's begun.' + +`They're putting down their names,' the Gryphon whispered in reply, `for fear they should forget them before the end of the trial.' + +`Stupid things!' Alice began in a loud, indignant voice, but she stopped hastily, for the White Rabbit cried out, `Silence in the court!' and the King put on his spectacles and looked anxiously round, to make out who was talking. + +Alice could see, as well as if she were looking over their shoulders, that all the jurors were writing down `stupid things!' on their slates, and she could even make out that one of them didn't know how to spell `stupid,' and that he had to ask his neighbour to tell him. `A nice muddle their slates'll be in before the trial's over!' thought Alice. + +One of the jurors had a pencil that squeaked. This of course, Alice could not stand, and she went round the court and got behind him, and very soon found an opportunity of taking it away. She did it so quickly that the poor little juror (it was Bill, the Lizard) could not make out at all what had become of it; so, after hunting all about for it, he was obliged to write with one finger for the rest of the day; and this was of very little use, as it left no mark on the slate. + +`Herald, read the accusation!' said the King. + +On this the White Rabbit blew three blasts on the trumpet, and then unrolled the parchment scroll, and read as follows:-- + +poem{ + + `The Queen of Hearts, she made some tarts, + All on a summer day: + The Knave of Hearts, he stole those tarts, + And took them quite away!' + +}poem + +`Consider your verdict,' the King said to the jury. + +`Not yet, not yet!' the Rabbit hastily interrupted. `There's a great deal to come before that!' + +`Call the first witness,' said the King; and the White Rabbit blew three blasts on the trumpet, and called out, `First witness!' + +The first witness was the Hatter. He came in with a teacup in one hand and a piece of bread-and-butter in the other. `I beg pardon, your Majesty,' he began, `for bringing these in: but I hadn't quite finished my tea when I was sent for.' + +`You ought to have finished,' said the King. `When did you begin?' + +The Hatter looked at the March Hare, who had followed him into the court, arm-in-arm with the Dormouse. `Fourteenth of March, I think it was,' he said. + +`Fifteenth,' said the March Hare. + +`Sixteenth,' added the Dormouse. + +`Write that down,' the King said to the jury, and the jury eagerly wrote down all three dates on their slates, and then added them up, and reduced the answer to shillings and pence. + +`Take off your hat,' the King said to the Hatter. + +`It isn't mine,' said the Hatter. + +`Stolen!' the King exclaimed, turning to the jury, who instantly made a memorandum of the fact. + +`I keep them to sell,' the Hatter added as an explanation; `I've none of my own. I'm a hatter.' + +Here the Queen put on her spectacles, and began staring at the Hatter, who turned pale and fidgeted. + +`Give your evidence,' said the King; `and don't be nervous, or I'll have you executed on the spot.' + +This did not seem to encourage the witness at all: he kept shifting from one foot to the other, looking uneasily at the Queen, and in his confusion he bit a large piece out of his teacup instead of the bread-and-butter. + +Just at this moment Alice felt a very curious sensation, which puzzled her a good deal until she made out what it was: she was beginning to grow larger again, and she thought at first she would get up and leave the court; but on second thoughts she decided to remain where she was as long as there was room for her. + +`I wish you wouldn't squeeze so.' said the Dormouse, who was sitting next to her. `I can hardly breathe.' + +`I can't help it,' said Alice very meekly: `I'm growing.' + +`You've no right to grow here,' said the Dormouse. + +`Don't talk nonsense,' said Alice more boldly: `you know you're growing too.' + +`Yes, but I grow at a reasonable pace,' said the Dormouse: `not in that ridiculous fashion.' And he got up very sulkily and crossed over to the other side of the court. + +All this time the Queen had never left off staring at the Hatter, and, just as the Dormouse crossed the court, she said to one of the officers of the court, `Bring me the list of the singers in the last concert!' on which the wretched Hatter trembled so, that he shook both his shoes off. + +`Give your evidence,' the King repeated angrily, `or I'll have you executed, whether you're nervous or not.' + +`I'm a poor man, your Majesty,' the Hatter began, in a trembling voice, `--and I hadn't begun my tea--not above a week or so--and what with the bread-and-butter getting so thin--and the twinkling of the tea--' + +`The twinkling of the what?' said the King. + +`It began with the tea,' the Hatter replied. + +`Of course twinkling begins with a T!' said the King sharply. `Do you take me for a dunce? Go on!' + +`I'm a poor man,' the Hatter went on, `and most things twinkled after that--only the March Hare said--' + +`I didn't!' the March Hare interrupted in a great hurry. + +`You did!' said the Hatter. + +`I deny it!' said the March Hare. + +`He denies it,' said the King: `leave out that part.' + +`Well, at any rate, the Dormouse said--' the Hatter went on, looking anxiously round to see if he would deny it too: but the Dormouse denied nothing, being fast asleep. + +`After that,' continued the Hatter, `I cut some more bread- and-butter--' + +`But what did the Dormouse say?' one of the jury asked. + +`That I can't remember,' said the Hatter. + +`You MUST remember,' remarked the King, `or I'll have you executed.' + +The miserable Hatter dropped his teacup and bread-and-butter, and went down on one knee. `I'm a poor man, your Majesty,' he began. + +`You're a very poor speaker,' said the King. + +Here one of the guinea-pigs cheered, and was immediately suppressed by the officers of the court. (As that is rather a hard word, I will just explain to you how it was done. They had a large canvas bag, which tied up at the mouth with strings: into this they slipped the guinea-pig, head first, and then sat upon it.) + +`I'm glad I've seen that done,' thought Alice. `I've so often read in the newspapers, at the end of trials, "There was some attempts at applause, which was immediately suppressed by the officers of the court," and I never understood what it meant till now.' + +`If that's all you know about it, you may stand down,' continued the King. + +`I can't go no lower,' said the Hatter: `I'm on the floor, as it is.' + +`Then you may SIT down,' the King replied. + +Here the other guinea-pig cheered, and was suppressed. + +`Come, that finished the guinea-pigs!' thought Alice. `Now we shall get on better.' + +`I'd rather finish my tea,' said the Hatter, with an anxious look at the Queen, who was reading the list of singers. + +`You may go,' said the King, and the Hatter hurriedly left the court, without even waiting to put his shoes on. + +`--and just take his head off outside,' the Queen added to one of the officers: but the Hatter was out of sight before the officer could get to the door. + +`Call the next witness!' said the King. + +The next witness was the Duchess's cook. She carried the pepper-box in her hand, and Alice guessed who it was, even before she got into the court, by the way the people near the door began sneezing all at once. + +`Give your evidence,' said the King. + +`Shan't,' said the cook. + +The King looked anxiously at the White Rabbit, who said in a low voice, `Your Majesty must cross-examine THIS witness.' + +`Well, if I must, I must,' the King said, with a melancholy air, and, after folding his arms and frowning at the cook till his eyes were nearly out of sight, he said in a deep voice, `What are tarts made of?' + +`Pepper, mostly,' said the cook. + +`Treacle,' said a sleepy voice behind her. + +`Collar that Dormouse,' the Queen shrieked out. `Behead that Dormouse! Turn that Dormouse out of court! Suppress him! Pinch him! Off with his whiskers!' + +For some minutes the whole court was in confusion, getting the Dormouse turned out, and, by the time they had settled down again, the cook had disappeared. + +`Never mind!' said the King, with an air of great relief. `Call the next witness.' And he added in an undertone to the Queen, `Really, my dear, YOU must cross-examine the next witness. It quite makes my forehead ache!' + +Alice watched the White Rabbit as he fumbled over the list, feeling very curious to see what the next witness would be like, `--for they haven't got much evidence YET,' she said to herself. Imagine her surprise, when the White Rabbit read out, at the top of his shrill little voice, the name `Alice!' + +CHAPTER XII - Alice's Evidence + +`Here!' cried Alice, quite forgetting in the flurry of the moment how large she had grown in the last few minutes, and she jumped up in such a hurry that she tipped over the jury-box with the edge of her skirt, upsetting all the jurymen on to the heads of the crowd below, and there they lay sprawling about, reminding her very much of a globe of goldfish she had accidentally upset the week before. + +`Oh, I BEG your pardon!' she exclaimed in a tone of great dismay, and began picking them up again as quickly as she could, for the accident of the goldfish kept running in her head, and she had a vague sort of idea that they must be collected at once and put back into the jury-box, or they would die. + +`The trial cannot proceed,' said the King in a very grave voice, `until all the jurymen are back in their proper places-- ALL,' he repeated with great emphasis, looking hard at Alice as he said do. + +Alice looked at the jury-box, and saw that, in her haste, she had put the Lizard in head downwards, and the poor little thing was waving its tail about in a melancholy way, being quite unable to move. She soon got it out again, and put it right; `not that it signifies much,' she said to herself; `I should think it would be QUITE as much use in the trial one way up as the other.' + +As soon as the jury had a little recovered from the shock of being upset, and their slates and pencils had been found and handed back to them, they set to work very diligently to write out a history of the accident, all except the Lizard, who seemed too much overcome to do anything but sit with its mouth open, gazing up into the roof of the court. + +`What do you know about this business?' the King said to Alice. + +`Nothing,' said Alice. + +`Nothing WHATEVER?' persisted the King. + +`Nothing whatever,' said Alice. + +`That's very important,' the King said, turning to the jury. They were just beginning to write this down on their slates, when the White Rabbit interrupted: `UNimportant, your Majesty means, of course,' he said in a very respectful tone, but frowning and making faces at him as he spoke. + +`UNimportant, of course, I meant,' the King hastily said, and went on to himself in an undertone, `important--unimportant-- unimportant--important--' as if he were trying which word sounded best. + +Some of the jury wrote it down `important,' and some `unimportant.' Alice could see this, as she was near enough to look over their slates; `but it doesn't matter a bit,' she thought to herself. + +At this moment the King, who had been for some time busily writing in his note-book, cackled out `Silence!' and read out from his book, `Rule Forty-two. ALL PERSONS MORE THAN A MILE HIGH TO LEAVE THE COURT.' + +Everybody looked at Alice. + +`I'M not a mile high,' said Alice. + +`You are,' said the King. + +`Nearly two miles high,' added the Queen. + +`Well, I shan't go, at any rate,' said Alice: `besides, that's not a regular rule: you invented it just now.' + +`It's the oldest rule in the book,' said the King. + +`Then it ought to be Number One,' said Alice. + +The King turned pale, and shut his note-book hastily. `Consider your verdict,' he said to the jury, in a low, trembling voice. + +`There's more evidence to come yet, please your Majesty,' said the White Rabbit, jumping up in a great hurry; `this paper has just been picked up.' + +`What's in it?' said the Queen. + +`I haven't opened it yet,' said the White Rabbit, `but it seems to be a letter, written by the prisoner to--to somebody.' + +`It must have been that,' said the King, `unless it was written to nobody, which isn't usual, you know.' + +`Who is it directed to?' said one of the jurymen. + +`It isn't directed at all,' said the White Rabbit; `in fact, there's nothing written on the OUTSIDE.' He unfolded the paper as he spoke, and added `It isn't a letter, after all: it's a set of verses.' + +`Are they in the prisoner's handwriting?' asked another of the jurymen. + +`No, they're not,' said the White Rabbit, `and that's the queerest thing about it.' (The jury all looked puzzled.) + +`He must have imitated somebody else's hand,' said the King. (The jury all brightened up again.) + +`Please your Majesty,' said the Knave, `I didn't write it, and they can't prove I did: there's no name signed at the end.' + +`If you didn't sign it,' said the King, `that only makes the matter worse. You MUST have meant some mischief, or else you'd have signed your name like an honest man.' + +There was a general clapping of hands at this: it was the first really clever thing the King had said that day. + +`That PROVES his guilt,' said the Queen. + +`It proves nothing of the sort!' said Alice. `Why, you don't even know what they're about!' + +`Read them,' said the King. + +The White Rabbit put on his spectacles. `Where shall I begin, please your Majesty?' he asked. + +`Begin at the beginning,' the King said gravely, `and go on till you come to the end: then stop.' + +These were the verses the White Rabbit read:-- + +poem{ + + `They told me you had been to her, + And mentioned me to him: + She gave me a good character, + But said I could not swim. + + He sent them word I had not gone + (We know it to be true): + If she should push the matter on, + What would become of you? + + I gave her one, they gave him two, + You gave us three or more; + They all returned from him to you, + Though they were mine before. + + If I or she should chance to be + Involved in this affair, + He trusts to you to set them free, + Exactly as we were. + + My notion was that you had been + (Before she had this fit) + An obstacle that came between + Him, and ourselves, and it. + + Don't let him know she liked them best, + For this must ever be + A secret, kept from all the rest, + Between yourself and me.' + +}poem + +`That's the most important piece of evidence we've heard yet,' said the King, rubbing his hands; `so now let the jury--' + +`If any one of them can explain it,' said Alice, (she had grown so large in the last few minutes that she wasn't a bit afraid of interrupting him,) `I'll give him sixpence. _{I}_ don't believe there's an atom of meaning in it.' + +The jury all wrote down on their slates, `SHE doesn't believe there's an atom of meaning in it,' but none of them attempted to explain the paper. + +`If there's no meaning in it,' said the King, `that saves a world of trouble, you know, as we needn't try to find any. And yet I don't know,' he went on, spreading out the verses on his knee, and looking at them with one eye; `I seem to see some meaning in them, after all. "--SAID I COULD NOT SWIM--" you can't swim, can you?' he added, turning to the Knave. + +The Knave shook his head sadly. `Do I look like it?' he said. (Which he certainly did NOT, being made entirely of cardboard.) + +`All right, so far,' said the King, and he went on muttering over the verses to himself: `"WE KNOW IT TO BE TRUE--" that's the jury, of course-- "I GAVE HER ONE, THEY GAVE HIM TWO--" why, that must be what he did with the tarts, you know--' + +`But, it goes on "THEY ALL RETURNED FROM HIM TO YOU,"' said Alice. + +`Why, there they are!' said the King triumphantly, pointing to the tarts on the table. `Nothing can be clearer than THAT. Then again--"BEFORE SHE HAD THIS FIT--" you never had fits, my dear, I think?' he said to the Queen. + +`Never!' said the Queen furiously, throwing an inkstand at the Lizard as she spoke. (The unfortunate little Bill had left off writing on his slate with one finger, as he found it made no mark; but he now hastily began again, using the ink, that was trickling down his face, as long as it lasted.) + +`Then the words don't FIT you,' said the King, looking round the court with a smile. There was a dead silence. + +`It's a pun!' the King added in an offended tone, and everybody laughed, `Let the jury consider their verdict,' the King said, for about the twentieth time that day. + +`No, no!' said the Queen. `Sentence first--verdict afterwards.' + +`Stuff and nonsense!' said Alice loudly. `The idea of having the sentence first!' + +`Hold your tongue!' said the Queen, turning purple. + +`I won't!' said Alice. + +`Off with her head!' the Queen shouted at the top of her voice. Nobody moved. + +`Who cares for you?' said Alice, (she had grown to her full size by this time.) `You're nothing but a pack of cards!' + +At this the whole pack rose up into the air, and came flying down upon her: she gave a little scream, half of fright and half of anger, and tried to beat them off, and found herself lying on the bank, with her head in the lap of her sister, who was gently brushing away some dead leaves that had fluttered down from the trees upon her face. + +`Wake up, Alice dear!' said her sister; `Why, what a long sleep you've had!' + +`Oh, I've had such a curious dream!' said Alice, and she told her sister, as well as she could remember them, all these strange Adventures of hers that you have just been reading about; and when she had finished, her sister kissed her, and said, `It WAS a curious dream, dear, certainly: but now run in to your tea; it's getting late.' So Alice got up and ran off, thinking while she ran, as well she might, what a wonderful dream it had been. + +But her sister sat still just as she left her, leaning her head on her hand, watching the setting sun, and thinking of little Alice and all her wonderful Adventures, till she too began dreaming after a fashion, and this was her dream:-- + +First, she dreamed of little Alice herself, and once again the tiny hands were clasped upon her knee, and the bright eager eyes were looking up into hers--she could hear the very tones of her voice, and see that queer little toss of her head to keep back the wandering hair that WOULD always get into her eyes--and still as she listened, or seemed to listen, the whole place around her became alive the strange creatures of her little sister's dream. + +The long grass rustled at her feet as the White Rabbit hurried by--the frightened Mouse splashed his way through the neighbouring pool--she could hear the rattle of the teacups as the March Hare and his friends shared their never-ending meal, and the shrill voice of the Queen ordering off her unfortunate guests to execution--once more the pig-baby was sneezing on the Duchess's knee, while plates and dishes crashed around it--once more the shriek of the Gryphon, the squeaking of the Lizard's slate-pencil, and the choking of the suppressed guinea-pigs, filled the air, mixed up with the distant sobs of the miserable Mock Turtle. + +So she sat on, with closed eyes, and half believed herself in Wonderland, though she knew she had but to open them again, and all would change to dull reality--the grass would be only rustling in the wind, and the pool rippling to the waving of the reeds--the rattling teacups would change to tinkling sheep-bells, and the Queen's shrill cries to the voice of the shepherd boy--and the sneeze of the baby, the shriek of the Gryphon, and all the other queer noises, would change (she knew) to the confused clamour of the busy farm-yard--while the lowing of the cattle in the distance would take the place of the Mock Turtle's heavy sobs. + +Lastly, she pictured to herself how this same little sister of hers would, in the after-time, be herself a grown woman; and how she would keep, through all her riper years, the simple and loving heart of her childhood: and how she would gather about her other little children, and make THEIR eyes bright and eager with many a strange tale, perhaps even with the dream of Wonderland of long ago: and how she would feel with all their simple sorrows, and find a pleasure in all their simple joys, remembering her own child-life, and the happy summer days. + +THE END diff --git a/data/v3/samples/gullivers_travels.jonathan_swift.sst b/data/v3/samples/gullivers_travels.jonathan_swift.sst new file mode 100644 index 0000000..ea623bb --- /dev/null +++ b/data/v3/samples/gullivers_travels.jonathan_swift.sst @@ -0,0 +1,1380 @@ +% SiSU 2.0 + +@title: Gulliver's Travels + +@creator: + :author: Swift, Jonathan + :prepared_by: David Price + +@classify: + :topic_register: SiSU markup sample:book:novel;book:novel + +@rights: + :copyright: Jonathan Swift + :license: Public Domain + +@date: + :published: 1726 + :created: 1726 + :issued: 1726 + :available: 1726 + :modified: 1735 + :added_to_site: 2005-10-30 + +@links: + { Gulliver's Travels }http://en.wikipedia.org/wiki/Gullivers_travels + { Johnathan Swift }http://en.wikipedia.org/wiki/Jonathan_Swift + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ + +@make: + :headings: none; none; PART; CHAPTER; + :breaks: new=3; break=4 + +A~ @title @creator + +:B~ Gulliver's Travels into Several Remote Nations of the World + +1~ THE PUBLISHER TO THE READER. + +[As given in the original edition.] + +The author of these Travels, Mr. Lemuel Gulliver, is my ancient and intimate friend; there is likewise some relation between us on the mother's side. About three years ago, Mr. Gulliver growing weary of the concourse of curious people coming to him at his house in Redriff, made a small purchase of land, with a convenient house, near Newark, in Nottinghamshire, his native country; where he now lives retired, yet in good esteem among his neighbours. + +Although Mr. Gulliver was born in Nottinghamshire, where his father dwelt, yet I have heard him say his family came from Oxfordshire; to confirm which, I have observed in the churchyard at Banbury in that county, several tombs and monuments of the Gullivers. + +Before he quitted Redriff, he left the custody of the following papers in my hands, with the liberty to dispose of them as I should think fit. I have carefully perused them three times. The style is very plain and simple; and the only fault I find is, that the author, after the manner of travellers, is a little too circumstantial. There is an air of truth apparent through the whole; and indeed the author was so distinguished for his veracity, that it became a sort of proverb among his neighbours at Redriff, when any one affirmed a thing, to say, it was as true as if Mr. Gulliver had spoken it. + +By the advice of several worthy persons, to whom, with the author's permission, I communicated these papers, I now venture to send them into the world, hoping they may be, at least for some time, a better entertainment to our young noblemen, than the common scribbles of politics and party. + +This volume would have been at least twice as large, if I had not made bold to strike out innumerable passages relating to the winds and tides, as well as to the variations and bearings in the several voyages, together with the minute descriptions of the management of the ship in storms, in the style of sailors; likewise the account of longitudes and latitudes; wherein I have reason to apprehend, that Mr. Gulliver may be a little dissatisfied. But I was resolved to fit the work as much as possible to the general capacity of readers. However, if my own ignorance in sea affairs shall have led me to commit some mistakes, I alone am answerable for them. And if any traveller hath a curiosity to see the whole work at large, as it came from the hands of the author, I will be ready to gratify him. + +As for any further particulars relating to the author, the reader will receive satisfaction from the first pages of the book. + +RICHARD SYMPSON. + +1~ A LETTER FROM CAPTAIN GULLIVER TO HIS COUSIN SYMPSON. + +WRITTEN IN THE YEAR 1727. + +I hope you will be ready to own publicly, whenever you shall be called to it, that by your great and frequent urgency you prevailed on me to publish a very loose and uncorrect account of my travels, with directions to hire some young gentleman of either university to put them in order, and correct the style, as my cousin Dampier did, by my advice, in his book called "A Voyage round the world." But I do not remember I gave you power to consent that any thing should be omitted, and much less that any thing should be inserted; therefore, as to the latter, I do here renounce every thing of that kind; particularly a paragraph about her majesty Queen Anne, of most pious and glorious memory; although I did reverence and esteem her more than any of human species. But you, or your interpolator, ought to have considered, that it was not my inclination, so was it not decent to praise any animal of our composition before my master Houyhnhnm: And besides, the fact was altogether false; for to my knowledge, being in England during some part of her majesty's reign, she did govern by a chief minister; nay even by two successively, the first whereof was the lord of Godolphin, and the second the lord of Oxford; so that you have made me say the thing that was not. Likewise in the account of the academy of projectors, and several passages of my discourse to my master Houyhnhnm, you have either omitted some material circumstances, or minced or changed them in such a manner, that I do hardly know my own work. When I formerly hinted to you something of this in a letter, you were pleased to answer that you were afraid of giving offence; that people in power were very watchful over the press, and apt not only to interpret, but to punish every thing which looked like an innuendo (as I think you call it). But, pray how could that which I spoke so many years ago, and at about five thousand leagues distance, in another reign, be applied to any of the Yahoos, who now are said to govern the herd; especially at a time when I little thought, or feared, the unhappiness of living under them? Have not I the most reason to complain, when I see these very Yahoos carried by Houyhnhnms in a vehicle, as if they were brutes, and those the rational creatures? And indeed to avoid so monstrous and detestable a sight was one principal motive of my retirement hither. + +Thus much I thought proper to tell you in relation to yourself, and to the trust I reposed in you. + +I do, in the next place, complain of my own great want of judgment, in being prevailed upon by the entreaties and false reasoning of you and some others, very much against my own opinion, to suffer my travels to be published. Pray bring to your mind how often I desired you to consider, when you insisted on the motive of public good, that the Yahoos were a species of animals utterly incapable of amendment by precept or example: and so it has proved; for, instead of seeing a full stop put to all abuses and corruptions, at least in this little island, as I had reason to expect; behold, after above six months warning, I cannot learn that my book has produced one single effect according to my intentions. I desired you would let me know, by a letter, when party and faction were extinguished; judges learned and upright; pleaders honest and modest, with some tincture of common sense, and Smithfield blazing with pyramids of law books; the young nobility's education entirely changed; the physicians banished; the female Yahoos abounding in virtue, honour, truth, and good sense; courts and levees of great ministers thoroughly weeded and swept; wit, merit, and learning rewarded; all disgracers of the press in prose and verse condemned to eat nothing but their own cotton, and quench their thirst with their own ink. These, and a thousand other reformations, I firmly counted upon by your encouragement; as indeed they were plainly deducible from the precepts delivered in my book. And it must be owned, that seven months were a sufficient time to correct every vice and folly to which Yahoos are subject, if their natures had been capable of the least disposition to virtue or wisdom. Yet, so far have you been from answering my expectation in any of your letters; that on the contrary you are loading our carrier every week with libels, and keys, and reflections, and memoirs, and second parts; wherein I see myself accused of reflecting upon great state folk; of degrading human nature (for so they have still the confidence to style it), and of abusing the female sex. I find likewise that the writers of those bundles are not agreed among themselves; for some of them will not allow me to be the author of my own travels; and others make me author of books to which I am wholly a stranger. + +I find likewise that your printer has been so careless as to confound the times, and mistake the dates, of my several voyages and returns; neither assigning the true year, nor the true month, nor day of the month: and I hear the original manuscript is all destroyed since the publication of my book; neither have I any copy left: however, I have sent you some corrections, which you may insert, if ever there should be a second edition: and yet I cannot stand to them; but shall leave that matter to my judicious and candid readers to adjust it as they please. + +I hear some of our sea Yahoos find fault with my sea-language, as not proper in many parts, nor now in use. I cannot help it. In my first voyages, while I was young, I was instructed by the oldest mariners, and learned to speak as they did. But I have since found that the sea Yahoos are apt, like the land ones, to become new- fangled in their words, which the latter change every year; insomuch, as I remember upon each return to my own country their old dialect was so altered, that I could hardly understand the new. And I observe, when any Yahoo comes from London out of curiosity to visit me at my house, we neither of us are able to deliver our conceptions in a manner intelligible to the other. + +If the censure of the Yahoos could any way affect me, I should have great reason to complain, that some of them are so bold as to think my book of travels a mere fiction out of mine own brain, and have gone so far as to drop hints, that the Houyhnhnms and Yahoos have no more existence than the inhabitants of Utopia. + +Indeed I must confess, that as to the people of Lilliput, Brobdingrag (for so the word should have been spelt, and not erroneously Brobdingnag), and Laputa, I have never yet heard of any Yahoo so presumptuous as to dispute their being, or the facts I have related concerning them; because the truth immediately strikes every reader with conviction. And is there less probability in my account of the Houyhnhnms or Yahoos, when it is manifest as to the latter, there are so many thousands even in this country, who only differ from their brother brutes in Houyhnhnmland, because they use a sort of jabber, and do not go naked? I wrote for their amendment, and not their approbation. The united praise of the whole race would be of less consequence to me, than the neighing of those two degenerate Houyhnhnms I keep in my stable; because from these, degenerate as they are, I still improve in some virtues without any mixture of vice. + +Do these miserable animals presume to think, that I am so degenerated as to defend my veracity? Yahoo as I am, it is well known through all Houyhnhnmland, that, by the instructions and example of my illustrious master, I was able in the compass of two years (although I confess with the utmost difficulty) to remove that infernal habit of lying, shuffling, deceiving, and equivocating, so deeply rooted in the very souls of all my species; especially the Europeans. + +I have other complaints to make upon this vexatious occasion; but I forbear troubling myself or you any further. I must freely confess, that since my last return, some corruptions of my Yahoo nature have revived in me by conversing with a few of your species, and particularly those of my own family, by an unavoidable necessity; else I should never have attempted so absurd a project as that of reforming the Yahoo race in this kingdom: But I have now done with all such visionary schemes for ever. + +April 2, 1727 + +PART I--A VOYAGE TO LILLIPUT. + +CHAPTER I. + +[The author gives some account of himself and family. His first inducements to travel. He is shipwrecked, and swims for his life. Gets safe on shore in the country of Lilliput; is made a prisoner, and carried up the country.] + +My father had a small estate in Nottinghamshire: I was the third of five sons. He sent me to Emanuel College in Cambridge at fourteen years old, where I resided three years, and applied myself close to my studies; but the charge of maintaining me, although I had a very scanty allowance, being too great for a narrow fortune, I was bound apprentice to Mr. James Bates, an eminent surgeon in London, with whom I continued four years. My father now and then sending me small sums of money, I laid them out in learning navigation, and other parts of the mathematics, useful to those who intend to travel, as I always believed it would be, some time or other, my fortune to do. When I left Mr. Bates, I went down to my father: where, by the assistance of him and my uncle John, and some other relations, I got forty pounds, and a promise of thirty pounds a year to maintain me at Leyden: there I studied physic two years and seven months, knowing it would be useful in long voyages. + +Soon after my return from Leyden, I was recommended by my good master, Mr. Bates, to be surgeon to the Swallow, Captain Abraham Pannel, commander; with whom I continued three years and a half, making a voyage or two into the Levant, and some other parts. When I came back I resolved to settle in London; to which Mr. Bates, my master, encouraged me, and by him I was recommended to several patients. I took part of a small house in the Old Jewry; and being advised to alter my condition, I married Mrs. Mary Burton, second daughter to Mr. Edmund Burton, hosier, in Newgate-street, with whom I received four hundred pounds for a portion. + +But my good master Bates dying in two years after, and I having few friends, my business began to fail; for my conscience would not suffer me to imitate the bad practice of too many among my brethren. Having therefore consulted with my wife, and some of my acquaintance, I determined to go again to sea. I was surgeon successively in two ships, and made several voyages, for six years, to the East and West Indies, by which I got some addition to my fortune. My hours of leisure I spent in reading the best authors, ancient and modern, being always provided with a good number of books; and when I was ashore, in observing the manners and dispositions of the people, as well as learning their language; wherein I had a great facility, by the strength of my memory. + +The last of these voyages not proving very fortunate, I grew weary of the sea, and intended to stay at home with my wife and family. I removed from the Old Jewry to Fetter Lane, and from thence to Wapping, hoping to get business among the sailors; but it would not turn to account. After three years expectation that things would mend, I accepted an advantageous offer from Captain William Prichard, master of the Antelope, who was making a voyage to the South Sea. We set sail from Bristol, May 4, 1699, and our voyage was at first very prosperous. + +It would not be proper, for some reasons, to trouble the reader with the particulars of our adventures in those seas; let it suffice to inform him, that in our passage from thence to the East Indies, we were driven by a violent storm to the north-west of Van Diemen's Land. By an observation, we found ourselves in the latitude of 30 degrees 2 minutes south. Twelve of our crew were dead by immoderate labour and ill food; the rest were in a very weak condition. On the 5th of November, which was the beginning of summer in those parts, the weather being very hazy, the seamen spied a rock within half a cable's length of the ship; but the wind was so strong, that we were driven directly upon it, and immediately split. Six of the crew, of whom I was one, having let down the boat into the sea, made a shift to get clear of the ship and the rock. We rowed, by my computation, about three leagues, till we were able to work no longer, being already spent with labour while we were in the ship. We therefore trusted ourselves to the mercy of the waves, and in about half an hour the boat was overset by a sudden flurry from the north. What became of my companions in the boat, as well as of those who escaped on the rock, or were left in the vessel, I cannot tell; but conclude they were all lost. For my own part, I swam as fortune directed me, and was pushed forward by wind and tide. I often let my legs drop, and could feel no bottom; but when I was almost gone, and able to struggle no longer, I found myself within my depth; and by this time the storm was much abated. The declivity was so small, that I walked near a mile before I got to the shore, which I conjectured was about eight o'clock in the evening. I then advanced forward near half a mile, but could not discover any sign of houses or inhabitants; at least I was in so weak a condition, that I did not observe them. I was extremely tired, and with that, and the heat of the weather, and about half a pint of brandy that I drank as I left the ship, I found myself much inclined to sleep. I lay down on the grass, which was very short and soft, where I slept sounder than ever I remembered to have done in my life, and, as I reckoned, about nine hours; for when I awaked, it was just day-light. I attempted to rise, but was not able to stir: for, as I happened to lie on my back, I found my arms and legs were strongly fastened on each side to the ground; and my hair, which was long and thick, tied down in the same manner. I likewise felt several slender ligatures across my body, from my arm-pits to my thighs. I could only look upwards; the sun began to grow hot, and the light offended my eyes. I heard a confused noise about me; but in the posture I lay, could see nothing except the sky. In a little time I felt something alive moving on my left leg, which advancing gently forward over my breast, came almost up to my chin; when, bending my eyes downwards as much as I could, I perceived it to be a human creature not six inches high, with a bow and arrow in his hands, and a quiver at his back. In the mean time, I felt at least forty more of the same kind (as I conjectured) following the first. I was in the utmost astonishment, and roared so loud, that they all ran back in a fright; and some of them, as I was afterwards told, were hurt with the falls they got by leaping from my sides upon the ground. However, they soon returned, and one of them, who ventured so far as to get a full sight of my face, lifting up his hands and eyes by way of admiration, cried out in a shrill but distinct voice, Hekinah degul: the others repeated the same words several times, but then I knew not what they meant. I lay all this while, as the reader may believe, in great uneasiness. At length, struggling to get loose, I had the fortune to break the strings, and wrench out the pegs that fastened my left arm to the ground; for, by lifting it up to my face, I discovered the methods they had taken to bind me, and at the same time with a violent pull, which gave me excessive pain, I a little loosened the strings that tied down my hair on the left side, so that I was just able to turn my head about two inches. But the creatures ran off a second time, before I could seize them; whereupon there was a great shout in a very shrill accent, and after it ceased I heard one of them cry aloud Tolgo phonac; when in an instant I felt above a hundred arrows discharged on my left hand, which, pricked me like so many needles; and besides, they shot another flight into the air, as we do bombs in Europe, whereof many, I suppose, fell on my body, (though I felt them not), and some on my face, which I immediately covered with my left hand. When this shower of arrows was over, I fell a groaning with grief and pain; and then striving again to get loose, they discharged another volley larger than the first, and some of them attempted with spears to stick me in the sides; but by good luck I had on a buff jerkin, which they could not pierce. I thought it the most prudent method to lie still, and my design was to continue so till night, when, my left hand being already loose, I could easily free myself: and as for the inhabitants, I had reason to believe I might be a match for the greatest army they could bring against me, if they were all of the same size with him that I saw. But fortune disposed otherwise of me. When the people observed I was quiet, they discharged no more arrows; but, by the noise I heard, I knew their numbers increased; and about four yards from me, over against my right ear, I heard a knocking for above an hour, like that of people at work; when turning my head that way, as well as the pegs and strings would permit me, I saw a stage erected about a foot and a half from the ground, capable of holding four of the inhabitants, with two or three ladders to mount it: from whence one of them, who seemed to be a person of quality, made me a long speech, whereof I understood not one syllable. But I should have mentioned, that before the principal person began his oration, he cried out three times, Langro dehul san (these words and the former were afterwards repeated and explained to me); whereupon, immediately, about fifty of the inhabitants came and cut the strings that fastened the left side of my head, which gave me the liberty of turning it to the right, and of observing the person and gesture of him that was to speak. He appeared to be of a middle age, and taller than any of the other three who attended him, whereof one was a page that held up his train, and seemed to be somewhat longer than my middle finger; the other two stood one on each side to support him. He acted every part of an orator, and I could observe many periods of threatenings, and others of promises, pity, and kindness. I answered in a few words, but in the most submissive manner, lifting up my left hand, and both my eyes to the sun, as calling him for a witness; and being almost famished with hunger, having not eaten a morsel for some hours before I left the ship, I found the demands of nature so strong upon me, that I could not forbear showing my impatience (perhaps against the strict rules of decency) by putting my finger frequently to my mouth, to signify that I wanted food. The hurgo (for so they call a great lord, as I afterwards learnt) understood me very well. He descended from the stage, and commanded that several ladders should be applied to my sides, on which above a hundred of the inhabitants mounted and walked towards my mouth, laden with baskets full of meat, which had been provided and sent thither by the king's orders, upon the first intelligence he received of me. I observed there was the flesh of several animals, but could not distinguish them by the taste. There were shoulders, legs, and loins, shaped like those of mutton, and very well dressed, but smaller than the wings of a lark. I ate them by two or three at a mouthful, and took three loaves at a time, about the bigness of musket bullets. They supplied me as fast as they could, showing a thousand marks of wonder and astonishment at my bulk and appetite. I then made another sign, that I wanted drink. They found by my eating that a small quantity would not suffice me; and being a most ingenious people, they slung up, with great dexterity, one of their largest hogsheads, then rolled it towards my hand, and beat out the top; I drank it off at a draught, which I might well do, for it did not hold half a pint, and tasted like a small wine of Burgundy, but much more delicious. They brought me a second hogshead, which I drank in the same manner, and made signs for more; but they had none to give me. When I had performed these wonders, they shouted for joy, and danced upon my breast, repeating several times as they did at first, Hekinah degul. They made me a sign that I should throw down the two hogsheads, but first warning the people below to stand out of the way, crying aloud, Borach mevolah; and when they saw the vessels in the air, there was a universal shout of Hekinah degul. I confess I was often tempted, while they were passing backwards and forwards on my body, to seize forty or fifty of the first that came in my reach, and dash them against the ground. But the remembrance of what I had felt, which probably might not be the worst they could do, and the promise of honour I made them--for so I interpreted my submissive behaviour-- soon drove out these imaginations. Besides, I now considered myself as bound by the laws of hospitality, to a people who had treated me with so much expense and magnificence. However, in my thoughts I could not sufficiently wonder at the intrepidity of these diminutive mortals, who durst venture to mount and walk upon my body, while one of my hands was at liberty, without trembling at the very sight of so prodigious a creature as I must appear to them. After some time, when they observed that I made no more demands for meat, there appeared before me a person of high rank from his imperial majesty. His excellency, having mounted on the small of my right leg, advanced forwards up to my face, with about a dozen of his retinue; and producing his credentials under the signet royal, which he applied close to my eyes, spoke about ten minutes without any signs of anger, but with a kind of determinate resolution, often pointing forwards, which, as I afterwards found, was towards the capital city, about half a mile distant; whither it was agreed by his majesty in council that I must be conveyed. I answered in few words, but to no purpose, and made a sign with my hand that was loose, putting it to the other (but over his excellency's head for fear of hurting him or his train) and then to my own head and body, to signify that I desired my liberty. It appeared that he understood me well enough, for he shook his head by way of disapprobation, and held his hand in a posture to show that I must be carried as a prisoner. However, he made other signs to let me understand that I should have meat and drink enough, and very good treatment. Whereupon I once more thought of attempting to break my bonds; but again, when I felt the smart of their arrows upon my face and hands, which were all in blisters, and many of the darts still sticking in them, and observing likewise that the number of my enemies increased, I gave tokens to let them know that they might do with me what they pleased. Upon this, the hurgo and his train withdrew, with much civility and cheerful countenances. Soon after I heard a general shout, with frequent repetitions of the words Peplom selan; and I felt great numbers of people on my left side relaxing the cords to such a degree, that I was able to turn upon my right, and to ease myself with making water; which I very plentifully did, to the great astonishment of the people; who, conjecturing by my motion what I was going to do, immediately opened to the right and left on that side, to avoid the torrent, which fell with such noise and violence from me. But before this, they had daubed my face and both my hands with a sort of ointment, very pleasant to the smell, which, in a few minutes, removed all the smart of their arrows. These circumstances, added to the refreshment I had received by their victuals and drink, which were very nourishing, disposed me to sleep. I slept about eight hours, as I was afterwards assured; and it was no wonder, for the physicians, by the emperor's order, had mingled a sleepy potion in the hogsheads of wine. + +It seems, that upon the first moment I was discovered sleeping on the ground, after my landing, the emperor had early notice of it by an express; and determined in council, that I should be tied in the manner I have related, (which was done in the night while I slept;) that plenty of meat and drink should be sent to me, and a machine prepared to carry me to the capital city. + +This resolution perhaps may appear very bold and dangerous, and I am confident would not be imitated by any prince in Europe on the like occasion. However, in my opinion, it was extremely prudent, as well as generous: for, supposing these people had endeavoured to kill me with their spears and arrows, while I was asleep, I should certainly have awaked with the first sense of smart, which might so far have roused my rage and strength, as to have enabled me to break the strings wherewith I was tied; after which, as they were not able to make resistance, so they could expect no mercy. + +These people are most excellent mathematicians, and arrived to a great perfection in mechanics, by the countenance and encouragement of the emperor, who is a renowned patron of learning. This prince has several machines fixed on wheels, for the carriage of trees and other great weights. He often builds his largest men of war, whereof some are nine feet long, in the woods where the timber grows, and has them carried on these engines three or four hundred yards to the sea. Five hundred carpenters and engineers were immediately set at work to prepare the greatest engine they had. It was a frame of wood raised three inches from the ground, about seven feet long, and four wide, moving upon twenty-two wheels. The shout I heard was upon the arrival of this engine, which, it seems, set out in four hours after my landing. It was brought parallel to me, as I lay. But the principal difficulty was to raise and place me in this vehicle. Eighty poles, each of one foot high, were erected for this purpose, and very strong cords, of the bigness of packthread, were fastened by hooks to many bandages, which the workmen had girt round my neck, my hands, my body, and my legs. Nine hundred of the strongest men were employed to draw up these cords, by many pulleys fastened on the poles; and thus, in less than three hours, I was raised and slung into the engine, and there tied fast. All this I was told; for, while the operation was performing, I lay in a profound sleep, by the force of that soporiferous medicine infused into my liquor. Fifteen hundred of the emperor's largest horses, each about four inches and a half high, were employed to draw me towards the metropolis, which, as I said, was half a mile distant. + +About four hours after we began our journey, I awaked by a very ridiculous accident; for the carriage being stopped a while, to adjust something that was out of order, two or three of the young natives had the curiosity to see how I looked when I was asleep; they climbed up into the engine, and advancing very softly to my face, one of them, an officer in the guards, put the sharp end of his half-pike a good way up into my left nostril, which tickled my nose like a straw, and made me sneeze violently; whereupon they stole off unperceived, and it was three weeks before I knew the cause of my waking so suddenly. We made a long march the remaining part of the day, and, rested at night with five hundred guards on each side of me, half with torches, and half with bows and arrows, ready to shoot me if I should offer to stir. The next morning at sun-rise we continued our march, and arrived within two hundred yards of the city gates about noon. The emperor, and all his court, came out to meet us; but his great officers would by no means suffer his majesty to endanger his person by mounting on my body. + +At the place where the carriage stopped there stood an ancient temple, esteemed to be the largest in the whole kingdom; which, having been polluted some years before by an unnatural murder, was, according to the zeal of those people, looked upon as profane, and therefore had been applied to common use, and all the ornaments and furniture carried away. In this edifice it was determined I should lodge. The great gate fronting to the north was about four feet high, and almost two feet wide, through which I could easily creep. On each side of the gate was a small window, not above six inches from the ground: into that on the left side, the king's smith conveyed fourscore and eleven chains, like those that hang to a lady's watch in Europe, and almost as large, which were locked to my left leg with six-and-thirty padlocks. Over against this temple, on the other side of the great highway, at twenty feet distance, there was a turret at least five feet high. Here the emperor ascended, with many principal lords of his court, to have an opportunity of viewing me, as I was told, for I could not see them. It was reckoned that above a hundred thousand inhabitants came out of the town upon the same errand; and, in spite of my guards, I believe there could not be fewer than ten thousand at several times, who mounted my body by the help of ladders. But a proclamation was soon issued, to forbid it upon pain of death. When the workmen found it was impossible for me to break loose, they cut all the strings that bound me; whereupon I rose up, with as melancholy a disposition as ever I had in my life. But the noise and astonishment of the people, at seeing me rise and walk, are not to be expressed. The chains that held my left leg were about two yards long, and gave me not only the liberty of walking backwards and forwards in a semicircle, but, being fixed within four inches of the gate, allowed me to creep in, and lie at my full length in the temple. + +CHAPTER II. + +[The emperor of Lilliput, attended by several of the nobility, comes to see the author in his confinement. The emperor's person and habit described. Learned men appointed to teach the author their language. He gains favour by his mild disposition. His pockets are searched, and his sword and pistols taken from him.] + +When I found myself on my feet, I looked about me, and must confess I never beheld a more entertaining prospect. The country around appeared like a continued garden, and the enclosed fields, which were generally forty feet square, resembled so many beds of flowers. These fields were intermingled with woods of half a stang,~^ and the tallest trees, as I could judge, appeared to be seven feet high. I viewed the town on my left hand, which looked like the painted scene of a city in a theatre. + +I had been for some hours extremely pressed by the necessities of nature; which was no wonder, it being almost two days since I had last disburdened myself. I was under great difficulties between urgency and shame. The best expedient I could think of, was to creep into my house, which I accordingly did; and shutting the gate after me, I went as far as the length of my chain would suffer, and discharged my body of that uneasy load. But this was the only time I was ever guilty of so uncleanly an action; for which I cannot but hope the candid reader will give some allowance, after he has maturely and impartially considered my case, and the distress I was in. From this time my constant practice was, as soon as I rose, to perform that business in open air, at the full extent of my chain; and due care was taken every morning before company came, that the offensive matter should be carried off in wheel-barrows, by two servants appointed for that purpose. I would not have dwelt so long upon a circumstance that, perhaps, at first sight, may appear not very momentous, if I had not thought it necessary to justify my character, in point of cleanliness, to the world; which, I am told, some of my maligners have been pleased, upon this and other occasions, to call in question. + +When this adventure was at an end, I came back out of my house, having occasion for fresh air. The emperor was already descended from the tower, and advancing on horseback towards me, which had like to have cost him dear; for the beast, though very well trained, yet wholly unused to such a sight, which appeared as if a mountain moved before him, reared up on its hinder feet: but that prince, who is an excellent horseman, kept his seat, till his attendants ran in, and held the bridle, while his majesty had time to dismount. When he alighted, he surveyed me round with great admiration; but kept beyond the length of my chain. He ordered his cooks and butlers, who were already prepared, to give me victuals and drink, which they pushed forward in a sort of vehicles upon wheels, till I could reach them. I took these vehicles and soon emptied them all; twenty of them were filled with meat, and ten with liquor; each of the former afforded me two or three good mouthfuls; and I emptied the liquor of ten vessels, which was contained in earthen vials, into one vehicle, drinking it off at a draught; and so I did with the rest. The empress, and young princes of the blood of both sexes, attended by many ladies, sat at some distance in their chairs; but upon the accident that happened to the emperor's horse, they alighted, and came near his person, which I am now going to describe. He is taller by almost the breadth of my nail, than any of his court; which alone is enough to strike an awe into the beholders. His features are strong and masculine, with an Austrian lip and arched nose, his complexion olive, his countenance erect, his body and limbs well proportioned, all his motions graceful, and his deportment majestic. He was then past his prime, being twenty-eight years and three quarters old, of which he had reigned about seven in great felicity, and generally victorious. For the better convenience of beholding him, I lay on my side, so that my face was parallel to his, and he stood but three yards off: however, I have had him since many times in my hand, and therefore cannot be deceived in the description. His dress was very plain and simple, and the fashion of it between the Asiatic and the European; but he had on his head a light helmet of gold, adorned with jewels, and a plume on the crest. He held his sword drawn in his hand to defend himself, if I should happen to break loose; it was almost three inches long; the hilt and scabbard were gold enriched with diamonds. His voice was shrill, but very clear and articulate; and I could distinctly hear it when I stood up. The ladies and courtiers were all most magnificently clad; so that the spot they stood upon seemed to resemble a petticoat spread upon the ground, embroidered with figures of gold and silver. His imperial majesty spoke often to me, and I returned answers: but neither of us could understand a syllable. There were several of his priests and lawyers present (as I conjectured by their habits), who were commanded to address themselves to me; and I spoke to them in as many languages as I had the least smattering of, which were High and Low Dutch, Latin, French, Spanish, Italian, and Lingua Franca, but all to no purpose. After about two hours the court retired, and I was left with a strong guard, to prevent the impertinence, and probably the malice of the rabble, who were very impatient to crowd about me as near as they durst; and some of them had the impudence to shoot their arrows at me, as I sat on the ground by the door of my house, whereof one very narrowly missed my left eye. But the colonel ordered six of the ringleaders to be seized, and thought no punishment so proper as to deliver them bound into my hands; which some of his soldiers accordingly did, pushing them forward with the butt-ends of their pikes into my reach. I took them all in my right hand, put five of them into my coat-pocket; and as to the sixth, I made a countenance as if I would eat him alive. The poor man squalled terribly, and the colonel and his officers were in much pain, especially when they saw me take out my penknife: but I soon put them out of fear; for, looking mildly, and immediately cutting the strings he was bound with, I set him gently on the ground, and away he ran. I treated the rest in the same manner, taking them one by one out of my pocket; and I observed both the soldiers and people were highly delighted at this mark of my clemency, which was represented very much to my advantage at court. + +Towards night I got with some difficulty into my house, where I lay on the ground, and continued to do so about a fortnight; during which time, the emperor gave orders to have a bed prepared for me. Six hundred beds of the common measure were brought in carriages, and worked up in my house; a hundred and fifty of their beds, sewn together, made up the breadth and length; and these were four double: which, however, kept me but very indifferently from the hardness of the floor, that was of smooth stone. By the same computation, they provided me with sheets, blankets, and coverlets, tolerable enough for one who had been so long inured to hardships. + +As the news of my arrival spread through the kingdom, it brought prodigious numbers of rich, idle, and curious people to see me; so that the villages were almost emptied; and great neglect of tillage and household affairs must have ensued, if his imperial majesty had not provided, by several proclamations and orders of state, against this inconveniency. He directed that those who had already beheld me should return home, and not presume to come within fifty yards of my house, without license from the court; whereby the secretaries of state got considerable fees. + +In the mean time the emperor held frequent councils, to debate what course should be taken with me; and I was afterwards assured by a particular friend, a person of great quality, who was as much in the secret as any, that the court was under many difficulties concerning me. They apprehended my breaking loose; that my diet would be very expensive, and might cause a famine. Sometimes they determined to starve me; or at least to shoot me in the face and hands with poisoned arrows, which would soon despatch me; but again they considered, that the stench of so large a carcass might produce a plague in the metropolis, and probably spread through the whole kingdom. In the midst of these consultations, several officers of the army went to the door of the great council-chamber, and two of them being admitted, gave an account of my behaviour to the six criminals above-mentioned; which made so favourable an impression in the breast of his majesty and the whole board, in my behalf, that an imperial commission was issued out, obliging all the villages, nine hundred yards round the city, to deliver in every morning six beeves, forty sheep, and other victuals for my sustenance; together with a proportionable quantity of bread, and wine, and other liquors; for the due payment of which, his majesty gave assignments upon his treasury:- for this prince lives chiefly upon his own demesnes; seldom, except upon great occasions, raising any subsidies upon his subjects, who are bound to attend him in his wars at their own expense. An establishment was also made of six hundred persons to be my domestics, who had board-wages allowed for their maintenance, and tents built for them very conveniently on each side of my door. It was likewise ordered, that three hundred tailors should make me a suit of clothes, after the fashion of the country; that six of his majesty's greatest scholars should be employed to instruct me in their language; and lastly, that the emperor's horses, and those of the nobility and troops of guards, should be frequently exercised in my sight, to accustom themselves to me. All these orders were duly put in execution; and in about three weeks I made a great progress in learning their language; during which time the emperor frequently honoured me with his visits, and was pleased to assist my masters in teaching me. We began already to converse together in some sort; and the first words I learnt, were to express my desire "that he would please give me my liberty;" which I every day repeated on my knees. His answer, as I could comprehend it, was, "that this must be a work of time, not to be thought on without the advice of his council, and that first I must lumos kelmin pesso desmar lon emposo;" that is, swear a peace with him and his kingdom. However, that I should be used with all kindness. And he advised me to "acquire, by my patience and discreet behaviour, the good opinion of himself and his subjects." He desired "I would not take it ill, if he gave orders to certain proper officers to search me; for probably I might carry about me several weapons, which must needs be dangerous things, if they answered the bulk of so prodigious a person." I said, "His majesty should be satisfied; for I was ready to strip myself, and turn up my pockets before him." This I delivered part in words, and part in signs. He replied, "that, by the laws of the kingdom, I must be searched by two of his officers; that he knew this could not be done without my consent and assistance; and he had so good an opinion of my generosity and justice, as to trust their persons in my hands; that whatever they took from me, should be returned when I left the country, or paid for at the rate which I would set upon them." I took up the two officers in my hands, put them first into my coat-pockets, and then into every other pocket about me, except my two fobs, and another secret pocket, which I had no mind should be searched, wherein I had some little necessaries that were of no consequence to any but myself. In one of my fobs there was a silver watch, and in the other a small quantity of gold in a purse. These gentlemen, having pen, ink, and paper, about them, made an exact inventory of every thing they saw; and when they had done, desired I would set them down, that they might deliver it to the emperor. This inventory I afterwards translated into English, and is, word for word, as follows: + +"Imprimis: In the right coat-pocket of the great man-mountain" (for so I interpret the words quinbus flestrin,) "after the strictest search, we found only one great piece of coarse-cloth, large enough to be a foot-cloth for your majesty's chief room of state. In the left pocket we saw a huge silver chest, with a cover of the same metal, which we, the searchers, were not able to lift. We desired it should be opened, and one of us stepping into it, found himself up to the mid leg in a sort of dust, some part whereof flying up to our faces set us both a sneezing for several times together. In his right waistcoat-pocket we found a prodigious bundle of white thin substances, folded one over another, about the bigness of three men, tied with a strong cable, and marked with black figures; which we humbly conceive to be writings, every letter almost half as large as the palm of our hands. In the left there was a sort of engine, from the back of which were extended twenty long poles, resembling the pallisados before your majesty's court: wherewith we conjecture the man- mountain combs his head; for we did not always trouble him with questions, because we found it a great difficulty to make him understand us. In the large pocket, on the right side of his middle cover" (so I translate the word ranfulo, by which they meant my breeches,) "we saw a hollow pillar of iron, about the length of a man, fastened to a strong piece of timber larger than the pillar; and upon one side of the pillar, were huge pieces of iron sticking out, cut into strange figures, which we know not what to make of. In the left pocket, another engine of the same kind. In the smaller pocket on the right side, were several round flat pieces of white and red metal, of different bulk; some of the white, which seemed to be silver, were so large and heavy, that my comrade and I could hardly lift them. In the left pocket were two black pillars irregularly shaped: we could not, without difficulty, reach the top of them, as we stood at the bottom of his pocket. One of them was covered, and seemed all of a piece: but at the upper end of the other there appeared a white round substance, about twice the bigness of our heads. Within each of these was enclosed a prodigious plate of steel; which, by our orders, we obliged him to show us, because we apprehended they might be dangerous engines. He took them out of their cases, and told us, that in his own country his practice was to shave his beard with one of these, and cut his meat with the other. There were two pockets which we could not enter: these he called his fobs; they were two large slits cut into the top of his middle cover, but squeezed close by the pressure of his belly. Out of the right fob hung a great silver chain, with a wonderful kind of engine at the bottom. We directed him to draw out whatever was at the end of that chain; which appeared to be a globe, half silver, and half of some transparent metal; for, on the transparent side, we saw certain strange figures circularly drawn, and thought we could touch them, till we found our fingers stopped by the lucid substance. He put this engine into our ears, which made an incessant noise, like that of a water- mill: and we conjecture it is either some unknown animal, or the god that he worships; but we are more inclined to the latter opinion, because he assured us, (if we understood him right, for he expressed himself very imperfectly) that he seldom did any thing without consulting it. He called it his oracle, and said, it pointed out the time for every action of his life. From the left fob he took out a net almost large enough for a fisherman, but contrived to open and shut like a purse, and served him for the same use: we found therein several massy pieces of yellow metal, which, if they be real gold, must be of immense value. + +"Having thus, in obedience to your majesty's commands, diligently searched all his pockets, we observed a girdle about his waist made of the hide of some prodigious animal, from which, on the left side, hung a sword of the length of five men; and on the right, a bag or pouch divided into two cells, each cell capable of holding three of your majesty's subjects. In one of these cells were several globes, or balls, of a most ponderous metal, about the bigness of our heads, and requiring a strong hand to lift them: the other cell contained a heap of certain black grains, but of no great bulk or weight, for we could hold above fifty of them in the palms of our hands. + +"This is an exact inventory of what we found about the body of the man-mountain, who used us with great civility, and due respect to your majesty's commission. Signed and sealed on the fourth day of the eighty-ninth moon of your majesty's auspicious reign. + +CLEFRIN FRELOCK, MARSI FRELOCK." + +When this inventory was read over to the emperor, he directed me, although in very gentle terms, to deliver up the several particulars. He first called for my scimitar, which I took out, scabbard and all. In the mean time he ordered three thousand of his choicest troops (who then attended him) to surround me at a distance, with their bows and arrows just ready to discharge; but I did not observe it, for mine eyes were wholly fixed upon his majesty. He then desired me to draw my scimitar, which, although it had got some rust by the sea water, was, in most parts, exceeding bright. I did so, and immediately all the troops gave a shout between terror and surprise; for the sun shone clear, and the reflection dazzled their eyes, as I waved the scimitar to and fro in my hand. His majesty, who is a most magnanimous prince, was less daunted than I could expect: he ordered me to return it into the scabbard, and cast it on the ground as gently as I could, about six feet from the end of my chain. The next thing he demanded was one of the hollow iron pillars; by which he meant my pocket pistols. I drew it out, and at his desire, as well as I could, expressed to him the use of it; and charging it only with powder, which, by the closeness of my pouch, happened to escape wetting in the sea (an inconvenience against which all prudent mariners take special care to provide,) I first cautioned the emperor not to be afraid, and then I let it off in the air. The astonishment here was much greater than at the sight of my scimitar. Hundreds fell down as if they had been struck dead; and even the emperor, although he stood his ground, could not recover himself for some time. I delivered up both my pistols in the same manner as I had done my scimitar, and then my pouch of powder and bullets; begging him that the former might be kept from fire, for it would kindle with the smallest spark, and blow up his imperial palace into the air. I likewise delivered up my watch, which the emperor was very curious to see, and commanded two of his tallest yeomen of the guards to bear it on a pole upon their shoulders, as draymen in England do a barrel of ale. He was amazed at the continual noise it made, and the motion of the minute-hand, which he could easily discern; for their sight is much more acute than ours: he asked the opinions of his learned men about it, which were various and remote, as the reader may well imagine without my repeating; although indeed I could not very perfectly understand them. I then gave up my silver and copper money, my purse, with nine large pieces of gold, and some smaller ones; my knife and razor, my comb and silver snuff-box, my handkerchief and journal-book. My scimitar, pistols, and pouch, were conveyed in carriages to his majesty's stores; but the rest of my goods were returned me. + +I had as I before observed, one private pocket, which escaped their search, wherein there was a pair of spectacles (which I sometimes use for the weakness of mine eyes,) a pocket perspective, and some other little conveniences; which, being of no consequence to the emperor, I did not think myself bound in honour to discover, and I apprehended they might be lost or spoiled if I ventured them out of my possession. + +CHAPTER III. + +[The author diverts the emperor, and his nobility of both sexes, in a very uncommon manner. The diversions of the court of Lilliput described. The author has his liberty granted him upon certain conditions.] + +My gentleness and good behaviour had gained so far on the emperor and his court, and indeed upon the army and people in general, that I began to conceive hopes of getting my liberty in a short time. I took all possible methods to cultivate this favourable disposition. The natives came, by degrees, to be less apprehensive of any danger from me. I would sometimes lie down, and let five or six of them dance on my hand; and at last the boys and girls would venture to come and play at hide-and-seek in my hair. I had now made a good progress in understanding and speaking the language. The emperor had a mind one day to entertain me with several of the country shows, wherein they exceed all nations I have known, both for dexterity and magnificence. I was diverted with none so much as that of the rope-dancers, performed upon a slender white thread, extended about two feet, and twelve inches from the ground. Upon which I shall desire liberty, with the reader's patience, to enlarge a little. + +This diversion is only practised by those persons who are candidates for great employments, and high favour at court. They are trained in this art from their youth, and are not always of noble birth, or liberal education. When a great office is vacant, either by death or disgrace (which often happens,) five or six of those candidates petition the emperor to entertain his majesty and the court with a dance on the rope; and whoever jumps the highest, without falling, succeeds in the office. Very often the chief ministers themselves are commanded to show their skill, and to convince the emperor that they have not lost their faculty. Flimnap, the treasurer, is allowed to cut a caper on the straight rope, at least an inch higher than any other lord in the whole empire. I have seen him do the summerset several times together, upon a trencher fixed on a rope which is no thicker than a common packthread in England. My friend Reldresal, principal secretary for private affairs, is, in my opinion, if I am not partial, the second after the treasurer; the rest of the great officers are much upon a par. + +These diversions are often attended with fatal accidents, whereof great numbers are on record. I myself have seen two or three candidates break a limb. But the danger is much greater, when the ministers themselves are commanded to show their dexterity; for, by contending to excel themselves and their fellows, they strain so far that there is hardly one of them who has not received a fall, and some of them two or three. I was assured that, a year or two before my arrival, Flimnap would infallibly have broke his neck, if one of the king's cushions, that accidentally lay on the ground, had not weakened the force of his fall. + +There is likewise another diversion, which is only shown before the emperor and empress, and first minister, upon particular occasions. The emperor lays on the table three fine silken threads of six inches long; one is blue, the other red, and the third green. These threads are proposed as prizes for those persons whom the emperor has a mind to distinguish by a peculiar mark of his favour. The ceremony is performed in his majesty's great chamber of state, where the candidates are to undergo a trial of dexterity very different from the former, and such as I have not observed the least resemblance of in any other country of the new or old world. The emperor holds a stick in his hands, both ends parallel to the horizon, while the candidates advancing, one by one, sometimes leap over the stick, sometimes creep under it, backward and forward, several times, according as the stick is advanced or depressed. Sometimes the emperor holds one end of the stick, and his first minister the other; sometimes the minister has it entirely to himself. Whoever performs his part with most agility, and holds out the longest in leaping and creeping, is rewarded with the blue- coloured silk; the red is given to the next, and the green to the third, which they all wear girt twice round about the middle; and you see few great persons about this court who are not adorned with one of these girdles. + +The horses of the army, and those of the royal stables, having been daily led before me, were no longer shy, but would come up to my very feet without starting. The riders would leap them over my hand, as I held it on the ground; and one of the emperor's huntsmen, upon a large courser, took my foot, shoe and all; which was indeed a prodigious leap. I had the good fortune to divert the emperor one day after a very extraordinary manner. I desired he would order several sticks of two feet high, and the thickness of an ordinary cane, to be brought me; whereupon his majesty commanded the master of his woods to give directions accordingly; and the next morning six woodmen arrived with as many carriages, drawn by eight horses to each. I took nine of these sticks, and fixing them firmly in the ground in a quadrangular figure, two feet and a half square, I took four other sticks, and tied them parallel at each corner, about two feet from the ground; then I fastened my handkerchief to the nine sticks that stood erect; and extended it on all sides, till it was tight as the top of a drum; and the four parallel sticks, rising about five inches higher than the handkerchief, served as ledges on each side. When I had finished my work, I desired the emperor to let a troop of his best horses twenty-four in number, come and exercise upon this plain. His majesty approved of the proposal, and I took them up, one by one, in my hands, ready mounted and armed, with the proper officers to exercise them. As soon as they got into order they divided into two parties, performed mock skirmishes, discharged blunt arrows, drew their swords, fled and pursued, attacked and retired, and in short discovered the best military discipline I ever beheld. The parallel sticks secured them and their horses from falling over the stage; and the emperor was so much delighted, that he ordered this entertainment to be repeated several days, and once was pleased to be lifted up and give the word of command; and with great difficulty persuaded even the empress herself to let me hold her in her close chair within two yards of the stage, when she was able to take a full view of the whole performance. It was my good fortune, that no ill accident happened in these entertainments; only once a fiery horse, that belonged to one of the captains, pawing with his hoof, struck a hole in my handkerchief, and his foot slipping, he overthrew his rider and himself; but I immediately relieved them both, and covering the hole with one hand, I set down the troop with the other, in the same manner as I took them up. The horse that fell was strained in the left shoulder, but the rider got no hurt; and I repaired my handkerchief as well as I could: however, I would not trust to the strength of it any more, in such dangerous enterprises. + +About two or three days before I was set at liberty, as I was entertaining the court with this kind of feat, there arrived an express to inform his majesty, that some of his subjects, riding near the place where I was first taken up, had seen a great black substance lying on the around, very oddly shaped, extending its edges round, as wide as his majesty's bedchamber, and rising up in the middle as high as a man; that it was no living creature, as they at first apprehended, for it lay on the grass without motion; and some of them had walked round it several times; that, by mounting upon each other's shoulders, they had got to the top, which was flat and even, and, stamping upon it, they found that it was hollow within; that they humbly conceived it might be something belonging to the man-mountain; and if his majesty pleased, they would undertake to bring it with only five horses. I presently knew what they meant, and was glad at heart to receive this intelligence. It seems, upon my first reaching the shore after our shipwreck, I was in such confusion, that before I came to the place where I went to sleep, my hat, which I had fastened with a string to my head while I was rowing, and had stuck on all the time I was swimming, fell off after I came to land; the string, as I conjecture, breaking by some accident, which I never observed, but thought my hat had been lost at sea. I entreated his imperial majesty to give orders it might be brought to me as soon as possible, describing to him the use and the nature of it: and the next day the waggoners arrived with it, but not in a very good condition; they had bored two holes in the brim, within an inch and half of the edge, and fastened two hooks in the holes; these hooks were tied by a long cord to the harness, and thus my hat was dragged along for above half an English mile; but, the ground in that country being extremely smooth and level, it received less damage than I expected. + +Two days after this adventure, the emperor, having ordered that part of his army which quarters in and about his metropolis, to be in readiness, took a fancy of diverting himself in a very singular manner. He desired I would stand like a Colossus, with my legs as far asunder as I conveniently could. He then commanded his general (who was an old experienced leader, and a great patron of mine) to draw up the troops in close order, and march them under me; the foot by twenty-four abreast, and the horse by sixteen, with drums beating, colours flying, and pikes advanced. This body consisted of three thousand foot, and a thousand horse. His majesty gave orders, upon pain of death, that every soldier in his march should observe the strictest decency with regard to my person; which however could not prevent some of the younger officers from turning up their eyes as they passed under me: and, to confess the truth, my breeches were at that time in so ill a condition, that they afforded some opportunities for laughter and admiration. + +I had sent so many memorials and petitions for my liberty, that his majesty at length mentioned the matter, first in the cabinet, and then in a full council; where it was opposed by none, except Skyresh Bolgolam, who was pleased, without any provocation, to be my mortal enemy. But it was carried against him by the whole board, and confirmed by the emperor. That minister was galbet, or admiral of the realm, very much in his master's confidence, and a person well versed in affairs, but of a morose and sour complexion. However, he was at length persuaded to comply; but prevailed that the articles and conditions upon which I should be set free, and to which I must swear, should be drawn up by himself. These articles were brought to me by Skyresh Bolgolam in person attended by two under-secretaries, and several persons of distinction. After they were read, I was demanded to swear to the performance of them; first in the manner of my own country, and afterwards in the method prescribed by their laws; which was, to hold my right foot in my left hand, and to place the middle finger of my right hand on the crown of my head, and my thumb on the tip of my right ear. But because the reader may be curious to have some idea of the style and manner of expression peculiar to that people, as well as to know the article upon which I recovered my liberty, I have made a translation of the whole instrument, word for word, as near as I was able, which I here offer to the public. + +"Golbasto Momarem Evlame Gurdilo Shefin Mully Ully Gue, most mighty Emperor of Lilliput, delight and terror of the universe, whose dominions extend five thousand blustrugs (about twelve miles in circumference) to the extremities of the globe; monarch of all monarchs, taller than the sons of men; whose feet press down to the centre, and whose head strikes against the sun; at whose nod the princes of the earth shake their knees; pleasant as the spring, comfortable as the summer, fruitful as autumn, dreadful as winter: his most sublime majesty proposes to the man-mountain, lately arrived at our celestial dominions, the following articles, which, by a solemn oath, he shall be obliged to perform:- + +"1st, The man-mountain shall not depart from our dominions, without our license under our great seal. + +"2d, He shall not presume to come into our metropolis, without our express order; at which time, the inhabitants shall have two hours warning to keep within doors. + +"3d, The said man-mountain shall confine his walks to our principal high roads, and not offer to walk, or lie down, in a meadow or field of corn. + +"4th, As he walks the said roads, he shall take the utmost care not to trample upon the bodies of any of our loving subjects, their horses, or carriages, nor take any of our subjects into his hands without their own consent. + +"5th, If an express requires extraordinary despatch, the man- mountain shall be obliged to carry, in his pocket, the messenger and horse a six days journey, once in every moon, and return the said messenger back (if so required) safe to our imperial presence. + +"6th, He shall be our ally against our enemies in the island of Blefuscu, and do his utmost to destroy their fleet, which is now preparing to invade us. + +"7th, That the said man-mountain shall, at his times of leisure, be aiding and assisting to our workmen, in helping to raise certain great stones, towards covering the wall of the principal park, and other our royal buildings. + +"8th, That the said man-mountain shall, in two moons' time, deliver in an exact survey of the circumference of our dominions, by a computation of his own paces round the coast. + +"Lastly, That, upon his solemn oath to observe all the above articles, the said man-mountain shall have a daily allowance of meat and drink sufficient for the support of 1724 of our subjects, with free access to our royal person, and other marks of our favour. Given at our palace at Belfaborac, the twelfth day of the ninety-first moon of our reign." + +I swore and subscribed to these articles with great cheerfulness and content, although some of them were not so honourable as I could have wished; which proceeded wholly from the malice of Skyresh Bolgolam, the high-admiral: whereupon my chains were immediately unlocked, and I was at full liberty. The emperor himself, in person, did me the honour to be by at the whole ceremony. I made my acknowledgements by prostrating myself at his majesty's feet: but he commanded me to rise; and after many gracious expressions, which, to avoid the censure of vanity, I shall not repeat, he added, "that he hoped I should prove a useful servant, and well deserve all the favours he had already conferred upon me, or might do for the future." + +The reader may please to observe, that, in the last article of the recovery of my liberty, the emperor stipulates to allow me a quantity of meat and drink sufficient for the support of 1724 Lilliputians. Some time after, asking a friend at court how they came to fix on that determinate number, he told me that his majesty's mathematicians, having taken the height of my body by the help of a quadrant, and finding it to exceed theirs in the proportion of twelve to one, they concluded from the similarity of their bodies, that mine must contain at least 1724 of theirs, and consequently would require as much food as was necessary to support that number of Lilliputians. By which the reader may conceive an idea of the ingenuity of that people, as well as the prudent and exact economy of so great a prince. + +CHAPTER IV. + +[Mildendo, the metropolis of Lilliput, described, together with the emperor's palace. A conversation between the author and a principal secretary, concerning the affairs of that empire. The author's offers to serve the emperor in his wars.] + +The first request I made, after I had obtained my liberty, was, that I might have license to see Mildendo, the metropolis; which the emperor easily granted me, but with a special charge to do no hurt either to the inhabitants or their houses. The people had notice, by proclamation, of my design to visit the town. The wall which encompassed it is two feet and a half high, and at least eleven inches broad, so that a coach and horses may be driven very safely round it; and it is flanked with strong towers at ten feet distance. I stepped over the great western gate, and passed very gently, and sidling, through the two principal streets, only in my short waistcoat, for fear of damaging the roofs and eaves of the houses with the skirts of my coat. I walked with the utmost circumspection, to avoid treading on any stragglers who might remain in the streets, although the orders were very strict, that all people should keep in their houses, at their own peril. The garret windows and tops of houses were so crowded with spectators, that I thought in all my travels I had not seen a more populous place. The city is an exact square, each side of the wall being five hundred feet long. The two great streets, which run across and divide it into four quarters, are five feet wide. The lanes and alleys, which I could not enter, but only view them as I passed, are from twelve to eighteen inches. The town is capable of holding five hundred thousand souls: the houses are from three to five stories: the shops and markets well provided. + +The emperor's palace is in the centre of the city where the two great streets meet. It is enclosed by a wall of two feet high, and twenty feet distance from the buildings. I had his majesty's permission to step over this wall; and, the space being so wide between that and the palace, I could easily view it on every side. The outward court is a square of forty feet, and includes two other courts: in the inmost are the royal apartments, which I was very desirous to see, but found it extremely difficult; for the great gates, from one square into another, were but eighteen inches high, and seven inches wide. Now the buildings of the outer court were at least five feet high, and it was impossible for me to stride over them without infinite damage to the pile, though the walls were strongly built of hewn stone, and four inches thick. At the same time the emperor had a great desire that I should see the magnificence of his palace; but this I was not able to do till three days after, which I spent in cutting down with my knife some of the largest trees in the royal park, about a hundred yards distant from the city. Of these trees I made two stools, each about three feet high, and strong enough to bear my weight. The people having received notice a second time, I went again through the city to the palace with my two stools in my hands. When I came to the side of the outer court, I stood upon one stool, and took the other in my hand; this I lifted over the roof, and gently set it down on the space between the first and second court, which was eight feet wide. I then stept over the building very conveniently from one stool to the other, and drew up the first after me with a hooked stick. By this contrivance I got into the inmost court; and, lying down upon my side, I applied my face to the windows of the middle stories, which were left open on purpose, and discovered the most splendid apartments that can be imagined. There I saw the empress and the young princes, in their several lodgings, with their chief attendants about them. Her imperial majesty was pleased to smile very graciously upon me, and gave me out of the window her hand to kiss. + +But I shall not anticipate the reader with further descriptions of this kind, because I reserve them for a greater work, which is now almost ready for the press; containing a general description of this empire, from its first erection, through along series of princes; with a particular account of their wars and politics, laws, learning, and religion; their plants and animals; their peculiar manners and customs, with other matters very curious and useful; my chief design at present being only to relate such events and transactions as happened to the public or to myself during a residence of about nine months in that empire. + +One morning, about a fortnight after I had obtained my liberty, Reldresal, principal secretary (as they style him) for private affairs, came to my house attended only by one servant. He ordered his coach to wait at a distance, and desired I would give him an hours audience; which I readily consented to, on account of his quality and personal merits, as well as of the many good offices he had done me during my solicitations at court. I offered to lie down that he might the more conveniently reach my ear, but he chose rather to let me hold him in my hand during our conversation. He began with compliments on my liberty; said "he might pretend to some merit in it;" but, however, added, "that if it had not been for the present situation of things at court, perhaps I might not have obtained it so soon. For," said he, "as flourishing a condition as we may appear to be in to foreigners, we labour under two mighty evils: a violent faction at home, and the danger of an invasion, by a most potent enemy, from abroad. As to the first, you are to understand, that for about seventy moons past there have been two struggling parties in this empire, under the names of Tramecksan and Slamecksan, from the high and low heels of their shoes, by which they distinguish themselves. It is alleged, indeed, that the high heels are most agreeable to our ancient constitution; but, however this be, his majesty has determined to make use only of low heels in the administration of the government, and all offices in the gift of the crown, as you cannot but observe; and particularly that his majesty's imperial heels are lower at least by a drurr than any of his court (drurr is a measure about the fourteenth part of an inch). The animosities between these two parties run so high, that they will neither eat, nor drink, nor talk with each other. We compute the Tramecksan, or high heels, to exceed us in number; but the power is wholly on our side. We apprehend his imperial highness, the heir to the crown, to have some tendency towards the high heels; at least we can plainly discover that one of his heels is higher than the other, which gives him a hobble in his gait. Now, in the midst of these intestine disquiets, we are threatened with an invasion from the island of Blefuscu, which is the other great empire of the universe, almost as large and powerful as this of his majesty. For as to what we have heard you affirm, that there are other kingdoms and states in the world inhabited by human creatures as large as yourself, our philosophers are in much doubt, and would rather conjecture that you dropped from the moon, or one of the stars; because it is certain, that a hundred mortals of your bulk would in a short time destroy all the fruits and cattle of his majesty's dominions: besides, our histories of six thousand moons make no mention of any other regions than the two great empires of Lilliput and Blefuscu. Which two mighty powers have, as I was going to tell you, been engaged in a most obstinate war for six-and-thirty moons past. It began upon the following occasion. It is allowed on all hands, that the primitive way of breaking eggs, before we eat them, was upon the larger end; but his present majesty's grandfather, while he was a boy, going to eat an egg, and breaking it according to the ancient practice, happened to cut one of his fingers. Whereupon the emperor his father published an edict, commanding all his subjects, upon great penalties, to break the smaller end of their eggs. The people so highly resented this law, that our histories tell us, there have been six rebellions raised on that account; wherein one emperor lost his life, and another his crown. These civil commotions were constantly fomented by the monarchs of Blefuscu; and when they were quelled, the exiles always fled for refuge to that empire. It is computed that eleven thousand persons have at several times suffered death, rather than submit to break their eggs at the smaller end. Many hundred large volumes have been published upon this controversy: but the books of the Big- endians have been long forbidden, and the whole party rendered incapable by law of holding employments. During the course of these troubles, the emperors of Blefusca did frequently expostulate by their ambassadors, accusing us of making a schism in religion, by offending against a fundamental doctrine of our great prophet Lustrog, in the fifty-fourth chapter of the Blundecral (which is their Alcoran). This, however, is thought to be a mere strain upon the text; for the words are these: 'that all true believers break their eggs at the convenient end.' And which is the convenient end, seems, in my humble opinion to be left to every man's conscience, or at least in the power of the chief magistrate to determine. Now, the Big-endian exiles have found so much credit in the emperor of Blefuscu's court, and so much private assistance and encouragement from their party here at home, that a bloody war has been carried on between the two empires for six-and-thirty moons, with various success; during which time we have lost forty capital ships, and a much a greater number of smaller vessels, together with thirty thousand of our best seamen and soldiers; and the damage received by the enemy is reckoned to be somewhat greater than ours. However, they have now equipped a numerous fleet, and are just preparing to make a descent upon us; and his imperial majesty, placing great confidence in your valour and strength, has commanded me to lay this account of his affairs before you." + +I desired the secretary to present my humble duty to the emperor; and to let him know, "that I thought it would not become me, who was a foreigner, to interfere with parties; but I was ready, with the hazard of my life, to defend his person and state against all invaders." + +CHAPTER V. + +[The author, by an extraordinary stratagem, prevents an invasion. A high title of honour is conferred upon him. Ambassadors arrive from the emperor of Blefuscu, and sue for peace. The empress's apartment on fire by an accident; the author instrumental in saving the rest of the palace.] + +The empire of Blefuscu is an island situated to the north-east of Lilliput, from which it is parted only by a channel of eight hundred yards wide. I had not yet seen it, and upon this notice of an intended invasion, I avoided appearing on that side of the coast, for fear of being discovered, by some of the enemy's ships, who had received no intelligence of me; all intercourse between the two empires having been strictly forbidden during the war, upon pain of death, and an embargo laid by our emperor upon all vessels whatsoever. I communicated to his majesty a project I had formed of seizing the enemy's whole fleet; which, as our scouts assured us, lay at anchor in the harbour, ready to sail with the first fair wind. I consulted the most experienced seamen upon the depth of the channel, which they had often plumbed; who told me, that in the middle, at high-water, it was seventy glumgluffs deep, which is about six feet of European measure; and the rest of it fifty glumgluffs at most. I walked towards the north-east coast, over against Blefuscu, where, lying down behind a hillock, I took out my small perspective glass, and viewed the enemy's fleet at anchor, consisting of about fifty men of war, and a great number of transports: I then came back to my house, and gave orders (for which I had a warrant) for a great quantity of the strongest cable and bars of iron. The cable was about as thick as packthread and the bars of the length and size of a knitting-needle. I trebled the cable to make it stronger, and for the same reason I twisted three of the iron bars together, bending the extremities into a hook. Having thus fixed fifty hooks to as many cables, I went back to the north-east coast, and putting off my coat, shoes, and stockings, walked into the sea, in my leathern jerkin, about half an hour before high water. I waded with what haste I could, and swam in the middle about thirty yards, till I felt ground. I arrived at the fleet in less than half an hour. The enemy was so frightened when they saw me, that they leaped out of their ships, and swam to shore, where there could not be fewer than thirty thousand souls. I then took my tackling, and, fastening a hook to the hole at the prow of each, I tied all the cords together at the end. While I was thus employed, the enemy discharged several thousand arrows, many of which stuck in my hands and face, and, beside the excessive smart, gave me much disturbance in my work. My greatest apprehension was for mine eyes, which I should have infallibly lost, if I had not suddenly thought of an expedient. I kept, among other little necessaries, a pair of spectacles in a private pocket, which, as I observed before, had escaped the emperor's searchers. These I took out and fastened as strongly as I could upon my nose, and thus armed, went on boldly with my work, in spite of the enemy's arrows, many of which struck against the glasses of my spectacles, but without any other effect, further than a little to discompose them. I had now fastened all the hooks, and, taking the knot in my hand, began to pull; but not a ship would stir, for they were all too fast held by their anchors, so that the boldest part of my enterprise remained. I therefore let go the cord, and leaving the looks fixed to the ships, I resolutely cut with my knife the cables that fastened the anchors, receiving about two hundred shots in my face and hands; then I took up the knotted end of the cables, to which my hooks were tied, and with great ease drew fifty of the enemy's largest men of war after me. + +The Blefuscudians, who had not the least imagination of what I intended, were at first confounded with astonishment. They had seen me cut the cables, and thought my design was only to let the ships run adrift or fall foul on each other: but when they perceived the whole fleet moving in order, and saw me pulling at the end, they set up such a scream of grief and despair as it is almost impossible to describe or conceive. When I had got out of danger, I stopped awhile to pick out the arrows that stuck in my hands and face; and rubbed on some of the same ointment that was given me at my first arrival, as I have formerly mentioned. I then took off my spectacles, and waiting about an hour, till the tide was a little fallen, I waded through the middle with my cargo, and arrived safe at the royal port of Lilliput. + +The emperor and his whole court stood on the shore, expecting the issue of this great adventure. They saw the ships move forward in a large half-moon, but could not discern me, who was up to my breast in water. When I advanced to the middle of the channel, they were yet more in pain, because I was under water to my neck. The emperor concluded me to be drowned, and that the enemy's fleet was approaching in a hostile manner: but he was soon eased of his fears; for the channel growing shallower every step I made, I came in a short time within hearing, and holding up the end of the cable, by which the fleet was fastened, I cried in a loud voice, "Long live the most puissant king of Lilliput!" This great prince received me at my landing with all possible encomiums, and created me a nardac upon the spot, which is the highest title of honour among them. + +His majesty desired I would take some other opportunity of bringing all the rest of his enemy's ships into his ports. And so unmeasureable is the ambition of princes, that he seemed to think of nothing less than reducing the whole empire of Blefuscu into a province, and governing it, by a viceroy; of destroying the Big- endian exiles, and compelling that people to break the smaller end of their eggs, by which he would remain the sole monarch of the whole world. But I endeavoured to divert him from this design, by many arguments drawn from the topics of policy as well as justice; and I plainly protested, "that I would never be an instrument of bringing a free and brave people into slavery." And, when the matter was debated in council, the wisest part of the ministry were of my opinion. + +This open bold declaration of mine was so opposite to the schemes and politics of his imperial majesty, that he could never forgive me. He mentioned it in a very artful manner at council, where I was told that some of the wisest appeared, at least by their silence, to be of my opinion; but others, who were my secret enemies, could not forbear some expressions which, by a side-wind, reflected on me. And from this time began an intrigue between his majesty and a junto of ministers, maliciously bent against me, which broke out in less than two months, and had like to have ended in my utter destruction. Of so little weight are the greatest services to princes, when put into the balance with a refusal to gratify their passions. + +About three weeks after this exploit, there arrived a solemn embassy from Blefuscu, with humble offers of a peace, which was soon concluded, upon conditions very advantageous to our emperor, wherewith I shall not trouble the reader. There were six ambassadors, with a train of about five hundred persons, and their entry was very magnificent, suitable to the grandeur of their master, and the importance of their business. When their treaty was finished, wherein I did them several good offices by the credit I now had, or at least appeared to have, at court, their excellencies, who were privately told how much I had been their friend, made me a visit in form. They began with many compliments upon my valour and generosity, invited me to that kingdom in the emperor their master's name, and desired me to show them some proofs of my prodigious strength, of which they had heard so many wonders; wherein I readily obliged them, but shall not trouble the reader with the particulars. + +When I had for some time entertained their excellencies, to their infinite satisfaction and surprise, I desired they would do me the honour to present my most humble respects to the emperor their master, the renown of whose virtues had so justly filled the whole world with admiration, and whose royal person I resolved to attend, before I returned to my own country. Accordingly, the next time I had the honour to see our emperor, I desired his general license to wait on the Blefuscudian monarch, which he was pleased to grant me, as I could perceive, in a very cold manner; but could not guess the reason, till I had a whisper from a certain person, "that Flimnap and Bolgolam had represented my intercourse with those ambassadors as a mark of disaffection;" from which I am sure my heart was wholly free. And this was the first time I began to conceive some imperfect idea of courts and ministers. + +It is to be observed, that these ambassadors spoke to me, by an interpreter, the languages of both empires differing as much from each other as any two in Europe, and each nation priding itself upon the antiquity, beauty, and energy of their own tongue, with an avowed contempt for that of their neighbour; yet our emperor, standing upon the advantage he had got by the seizure of their fleet, obliged them to deliver their credentials, and make their speech, in the Lilliputian tongue. And it must be confessed, that from the great intercourse of trade and commerce between both realms, from the continual reception of exiles which is mutual among them, and from the custom, in each empire, to send their young nobility and richer gentry to the other, in order to polish themselves by seeing the world, and understanding men and manners; there are few persons of distinction, or merchants, or seamen, who dwell in the maritime parts, but what can hold conversation in both tongues; as I found some weeks after, when I went to pay my respects to the emperor of Blefuscu, which, in the midst of great misfortunes, through the malice of my enemies, proved a very happy adventure to me, as I shall relate in its proper place. + +The reader may remember, that when I signed those articles upon which I recovered my liberty, there were some which I disliked, upon account of their being too servile; neither could anything but an extreme necessity have forced me to submit. But being now a nardac of the highest rank in that empire, such offices were looked upon as below my dignity, and the emperor (to do him justice), never once mentioned them to me. However, it was not long before I had an opportunity of doing his majesty, at least as I then thought, a most signal service. I was alarmed at midnight with the cries of many hundred people at my door; by which, being suddenly awaked, I was in some kind of terror. I heard the word Burglum repeated incessantly: several of the emperor's court, making their way through the crowd, entreated me to come immediately to the palace, where her imperial majesty's apartment was on fire, by the carelessness of a maid of honour, who fell asleep while she was reading a romance. I got up in an instant; and orders being given to clear the way before me, and it being likewise a moonshine night, I made a shift to get to the palace without trampling on any of the people. I found they had already applied ladders to the walls of the apartment, and were well provided with buckets, but the water was at some distance. These buckets were about the size of large thimbles, and the poor people supplied me with them as fast as they could: but the flame was so violent that they did little good. I might easily have stifled it with my coat, which I unfortunately left behind me for haste, and came away only in my leathern jerkin. The case seemed wholly desperate and deplorable; and this magnificent palace would have infallibly been burnt down to the ground, if, by a presence of mind unusual to me, I had not suddenly thought of an expedient. I had, the evening before, drunk plentifully of a most delicious wine called glimigrim, (the Blefuscudians call it flunec, but ours is esteemed the better sort,) which is very diuretic. By the luckiest chance in the world, I had not discharged myself of any part of it. The heat I had contracted by coming very near the flames, and by labouring to quench them, made the wine begin to operate by urine; which I voided in such a quantity, and applied so well to the proper places, that in three minutes the fire was wholly extinguished, and the rest of that noble pile, which had cost so many ages in erecting, preserved from destruction. + +It was now day-light, and I returned to my house without waiting to congratulate with the emperor: because, although I had done a very eminent piece of service, yet I could not tell how his majesty might resent the manner by which I had performed it: for, by the fundamental laws of the realm, it is capital in any person, of what quality soever, to make water within the precincts of the palace. But I was a little comforted by a message from his majesty, "that he would give orders to the grand justiciary for passing my pardon in form:" which, however, I could not obtain; and I was privately assured, "that the empress, conceiving the greatest abhorrence of what I had done, removed to the most distant side of the court, firmly resolved that those buildings should never be repaired for her use: and, in the presence of her chief confidents could not forbear vowing revenge." + +CHAPTER VI. + +[Of the inhabitants of Lilliput; their learning, laws, and customs; the manner of educating their children. The author's way of living in that country. His vindication of a great lady.] + +Although I intend to leave the description of this empire to a particular treatise, yet, in the mean time, I am content to gratify the curious reader with some general ideas. As the common size of the natives is somewhat under six inches high, so there is an exact proportion in all other animals, as well as plants and trees: for instance, the tallest horses and oxen are between four and five inches in height, the sheep an inch and half, more or less: their geese about the bigness of a sparrow, and so the several gradations downwards till you come to the smallest, which to my sight, were almost invisible; but nature has adapted the eyes of the Lilliputians to all objects proper for their view: they see with great exactness, but at no great distance. And, to show the sharpness of their sight towards objects that are near, I have been much pleased with observing a cook pulling a lark, which was not so large as a common fly; and a young girl threading an invisible needle with invisible silk. Their tallest trees are about seven feet high: I mean some of those in the great royal park, the tops whereof I could but just reach with my fist clenched. The other vegetables are in the same proportion; but this I leave to the reader's imagination. + +I shall say but little at present of their learning, which, for many ages, has flourished in all its branches among them: but their manner of writing is very peculiar, being neither from the left to the right, like the Europeans, nor from the right to the left, like the Arabians, nor from up to down, like the Chinese, but aslant, from one corner of the paper to the other, like ladies in England. + +They bury their dead with their heads directly downward, because they hold an opinion, that in eleven thousand moons they are all to rise again; in which period the earth (which they conceive to be flat) will turn upside down, and by this means they shall, at their resurrection, be found ready standing on their feet. The learned among them confess the absurdity of this doctrine; but the practice still continues, in compliance to the vulgar. + +There are some laws and customs in this empire very peculiar; and if they were not so directly contrary to those of my own dear country, I should be tempted to say a little in their justification. It is only to be wished they were as well executed. The first I shall mention, relates to informers. All crimes against the state, are punished here with the utmost severity; but, if the person accused makes his innocence plainly to appear upon his trial, the accuser is immediately put to an ignominious death; and out of his goods or lands the innocent person is quadruply recompensed for the loss of his time, for the danger he underwent, for the hardship of his imprisonment, and for all the charges he has been at in making his defence; or, if that fund be deficient, it is largely supplied by the crown. The emperor also confers on him some public mark of his favour, and proclamation is made of his innocence through the whole city. + +They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege, that care and vigilance, with a very common understanding, may preserve a man's goods from thieves, but honesty has no defence against superior cunning; and, since it is necessary that there should be a perpetual intercourse of buying and selling, and dealing upon credit, where fraud is permitted and connived at, or has no law to punish it, the honest dealer is always undone, and the knave gets the advantage. I remember, when I was once interceding with the emperor for a criminal who had wronged his master of a great sum of money, which he had received by order and ran away with; and happening to tell his majesty, by way of extenuation, that it was only a breach of trust, the emperor thought it monstrous in me to offer as a defence the greatest aggravation of the crime; and truly I had little to say in return, farther than the common answer, that different nations had different customs; for, I confess, I was heartily ashamed.~^ + +Although we usually call reward and punishment the two hinges upon which all government turns, yet I could never observe this maxim to be put in practice by any nation except that of Lilliput. Whoever can there bring sufficient proof, that he has strictly observed the laws of his country for seventy-three moons, has a claim to certain privileges, according to his quality or condition of life, with a proportionable sum of money out of a fund appropriated for that use: he likewise acquires the title of snilpall, or legal, which is added to his name, but does not descend to his posterity. And these people thought it a prodigious defect of policy among us, when I told them that our laws were enforced only by penalties, without any mention of reward. It is upon this account that the image of Justice, in their courts of judicature, is formed with six eyes, two before, as many behind, and on each side one, to signify circumspection; with a bag of gold open in her right hand, and a sword sheathed in her left, to show she is more disposed to reward than to punish. + +In choosing persons for all employments, they have more regard to good morals than to great abilities; for, since government is necessary to mankind, they believe, that the common size of human understanding is fitted to some station or other; and that Providence never intended to make the management of public affairs a mystery to be comprehended only by a few persons of sublime genius, of which there seldom are three born in an age: but they suppose truth, justice, temperance, and the like, to be in every man's power; the practice of which virtues, assisted by experience and a good intention, would qualify any man for the service of his country, except where a course of study is required. But they thought the want of moral virtues was so far from being supplied by superior endowments of the mind, that employments could never be put into such dangerous hands as those of persons so qualified; and, at least, that the mistakes committed by ignorance, in a virtuous disposition, would never be of such fatal consequence to the public weal, as the practices of a man, whose inclinations led him to be corrupt, and who had great abilities to manage, to multiply, and defend his corruptions. + +In like manner, the disbelief of a Divine Providence renders a man incapable of holding any public station; for, since kings avow themselves to be the deputies of Providence, the Lilliputians think nothing can be more absurd than for a prince to employ such men as disown the authority under which he acts. + +In relating these and the following laws, I would only be understood to mean the original institutions, and not the most scandalous corruptions, into which these people are fallen by the degenerate nature of man. For, as to that infamous practice of acquiring great employments by dancing on the ropes, or badges of favour and distinction by leaping over sticks and creeping under them, the reader is to observe, that they were first introduced by the grandfather of the emperor now reigning, and grew to the present height by the gradual increase of party and faction. + +Ingratitude is among them a capital crime, as we read it to have been in some other countries: for they reason thus; that whoever makes ill returns to his benefactor, must needs be a common enemy to the rest of mankind, from whom he has received no obligation, and therefore such a man is not fit to live. + +Their notions relating to the duties of parents and children differ extremely from ours. For, since the conjunction of male and female is founded upon the great law of nature, in order to propagate and continue the species, the Lilliputians will needs have it, that men and women are joined together, like other animals, by the motives of concupiscence; and that their tenderness towards their young proceeds from the like natural principle: for which reason they will never allow that a child is under any obligation to his father for begetting him, or to his mother for bringing him into the world; which, considering the miseries of human life, was neither a benefit in itself, nor intended so by his parents, whose thoughts, in their love encounters, were otherwise employed. Upon these, and the like reasonings, their opinion is, that parents are the last of all others to be trusted with the education of their own children; and therefore they have in every town public nurseries, where all parents, except cottagers and labourers, are obliged to send their infants of both sexes to be reared and educated, when they come to the age of twenty moons, at which time they are supposed to have some rudiments of docility. These schools are of several kinds, suited to different qualities, and both sexes. They have certain professors well skilled in preparing children for such a condition of life as befits the rank of their parents, and their own capacities, as well as inclinations. I shall first say something of the male nurseries, and then of the female. + +The nurseries for males of noble or eminent birth, are provided with grave and learned professors, and their several deputies. The clothes and food of the children are plain and simple. They are bred up in the principles of honour, justice, courage, modesty, clemency, religion, and love of their country; they are always employed in some business, except in the times of eating and sleeping, which are very short, and two hours for diversions consisting of bodily exercises. They are dressed by men till four years of age, and then are obliged to dress themselves, although their quality be ever so great; and the women attendant, who are aged proportionably to ours at fifty, perform only the most menial offices. They are never suffered to converse with servants, but go together in smaller or greater numbers to take their diversions, and always in the presence of a professor, or one of his deputies; whereby they avoid those early bad impressions of folly and vice, to which our children are subject. Their parents are suffered to see them only twice a year; the visit is to last but an hour; they are allowed to kiss the child at meeting and parting; but a professor, who always stands by on those occasions, will not suffer them to whisper, or use any fondling expressions, or bring any presents of toys, sweetmeats, and the like. + +The pension from each family for the education and entertainment of a child, upon failure of due payment, is levied by the emperor's officers. + +The nurseries for children of ordinary gentlemen, merchants, traders, and handicrafts, are managed proportionably after the same manner; only those designed for trades are put out apprentices at eleven years old, whereas those of persons of quality continue in their exercises till fifteen, which answers to twenty-one with us: but the confinement is gradually lessened for the last three years. + +In the female nurseries, the young girls of quality are educated much like the males, only they are dressed by orderly servants of their own sex; but always in the presence of a professor or deputy, till they come to dress themselves, which is at five years old. And if it be found that these nurses ever presume to entertain the girls with frightful or foolish stories, or the common follies practised by chambermaids among us, they are publicly whipped thrice about the city, imprisoned for a year, and banished for life to the most desolate part of the country. Thus the young ladies are as much ashamed of being cowards and fools as the men, and despise all personal ornaments, beyond decency and cleanliness: neither did I perceive any difference in their education made by their difference of sex, only that the exercises of the females were not altogether so robust; and that some rules were given them relating to domestic life, and a smaller compass of learning was enjoined them: for their maxim is, that among peoples of quality, a wife should be always a reasonable and agreeable companion, because she cannot always be young. When the girls are twelve years old, which among them is the marriageable age, their parents or guardians take them home, with great expressions of gratitude to the professors, and seldom without tears of the young lady and her companions. + +In the nurseries of females of the meaner sort, the children are instructed in all kinds of works proper for their sex, and their several degrees: those intended for apprentices are dismissed at seven years old, the rest are kept to eleven. + +The meaner families who have children at these nurseries, are obliged, besides their annual pension, which is as low as possible, to return to the steward of the nursery a small monthly share of their gettings, to be a portion for the child; and therefore all parents are limited in their expenses by the law. For the Lilliputians think nothing can be more unjust, than for people, in subservience to their own appetites, to bring children into the world, and leave the burthen of supporting them on the public. As to persons of quality, they give security to appropriate a certain sum for each child, suitable to their condition; and these funds are always managed with good husbandry and the most exact justice. + +The cottagers and labourers keep their children at home, their business being only to till and cultivate the earth, and therefore their education is of little consequence to the public: but the old and diseased among them, are supported by hospitals; for begging is a trade unknown in this empire. + +And here it may, perhaps, divert the curious reader, to give some account of my domestics, and my manner of living in this country, during a residence of nine months, and thirteen days. Having a head mechanically turned, and being likewise forced by necessity, I had made for myself a table and chair convenient enough, out of the largest trees in the royal park. Two hundred sempstresses were employed to make me shirts, and linen for my bed and table, all of the strongest and coarsest kind they could get; which, however, they were forced to quilt together in several folds, for the thickest was some degrees finer than lawn. Their linen is usually three inches wide, and three feet make a piece. The sempstresses took my measure as I lay on the ground, one standing at my neck, and another at my mid-leg, with a strong cord extended, that each held by the end, while a third measured the length of the cord with a rule of an inch long. Then they measured my right thumb, and desired no more; for by a mathematical computation, that twice round the thumb is once round the wrist, and so on to the neck and the waist, and by the help of my old shirt, which I displayed on the ground before them for a pattern, they fitted me exactly. Three hundred tailors were employed in the same manner to make me clothes; but they had another contrivance for taking my measure. I kneeled down, and they raised a ladder from the ground to my neck; upon this ladder one of them mounted, and let fall a plumb-line from my collar to the floor, which just answered the length of my coat: but my waist and arms I measured myself. When my clothes were finished, which was done in my house (for the largest of theirs would not have been able to hold them), they looked like the patch-work made by the ladies in England, only that mine were all of a colour. + +I had three hundred cooks to dress my victuals, in little convenient huts built about my house, where they and their families lived, and prepared me two dishes a-piece. I took up twenty waiters in my hand, and placed them on the table: a hundred more attended below on the ground, some with dishes of meat, and some with barrels of wine and other liquors slung on their shoulders; all which the waiters above drew up, as I wanted, in a very ingenious manner, by certain cords, as we draw the bucket up a well in Europe. A dish of their meat was a good mouthful, and a barrel of their liquor a reasonable draught. Their mutton yields to ours, but their beef is excellent. I have had a sirloin so large, that I have been forced to make three bites of it; but this is rare. My servants were astonished to see me eat it, bones and all, as in our country we do the leg of a lark. Their geese and turkeys I usually ate at a mouthful, and I confess they far exceed ours. Of their smaller fowl I could take up twenty or thirty at the end of my knife. + +One day his imperial majesty, being informed of my way of living, desired "that himself and his royal consort, with the young princes of the blood of both sexes, might have the happiness," as he was pleased to call it, "of dining with me." They came accordingly, and I placed them in chairs of state, upon my table, just over against me, with their guards about them. Flimnap, the lord high treasurer, attended there likewise with his white staff; and I observed he often looked on me with a sour countenance, which I would not seem to regard, but ate more than usual, in honour to my dear country, as well as to fill the court with admiration. I have some private reasons to believe, that this visit from his majesty gave Flimnap an opportunity of doing me ill offices to his master. That minister had always been my secret enemy, though he outwardly caressed me more than was usual to the moroseness of his nature. He represented to the emperor "the low condition of his treasury; that he was forced to take up money at a great discount; that exchequer bills would not circulate under nine per cent. below par; that I had cost his majesty above a million and a half of sprugs" (their greatest gold coin, about the bigness of a spangle) "and, upon the whole, that it would be advisable in the emperor to take the first fair occasion of dismissing me." + +I am here obliged to vindicate the reputation of an excellent lady, who was an innocent sufferer upon my account. The treasurer took a fancy to be jealous of his wife, from the malice of some evil tongues, who informed him that her grace had taken a violent affection for my person; and the court scandal ran for some time, that she once came privately to my lodging. This I solemnly declare to be a most infamous falsehood, without any grounds, further than that her grace was pleased to treat me with all innocent marks of freedom and friendship. I own she came often to my house, but always publicly, nor ever without three more in the coach, who were usually her sister and young daughter, and some particular acquaintance; but this was common to many other ladies of the court. And I still appeal to my servants round, whether they at any time saw a coach at my door, without knowing what persons were in it. On those occasions, when a servant had given me notice, my custom was to go immediately to the door, and, after paying my respects, to take up the coach and two horses very carefully in my hands (for, if there were six horses, the postillion always unharnessed four,) and place them on a table, where I had fixed a movable rim quite round, of five inches high, to prevent accidents. And I have often had four coaches and horses at once on my table, full of company, while I sat in my chair, leaning my face towards them; and when I was engaged with one set, the coachmen would gently drive the others round my table. I have passed many an afternoon very agreeably in these conversations. But I defy the treasurer, or his two informers (I will name them, and let them make the best of it) Clustril and Drunlo, to prove that any person ever came to me incognito, except the secretary Reldresal, who was sent by express command of his imperial majesty, as I have before related. I should not have dwelt so long upon this particular, if it had not been a point wherein the reputation of a great lady is so nearly concerned, to say nothing of my own; though I then had the honour to be a nardac, which the treasurer himself is not; for all the world knows, that he is only a glumglum, a title inferior by one degree, as that of a marquis is to a duke in England; yet I allow he preceded me in right of his post. These false informations, which I afterwards came to the knowledge of by an accident not proper to mention, made the treasurer show his lady for some time an ill countenance, and me a worse; and although he was at last undeceived and reconciled to her, yet I lost all credit with him, and found my interest decline very fast with the emperor himself, who was, indeed, too much governed by that favourite. + +CHAPTER VII. + +[The author, being informed of a design to accuse him of high- treason, makes his escape to Blefuscu. His reception there.] + +Before I proceed to give an account of my leaving this kingdom, it may be proper to inform the reader of a private intrigue which had been for two months forming against me. + +I had been hitherto, all my life, a stranger to courts, for which I was unqualified by the meanness of my condition. I had indeed heard and read enough of the dispositions of great princes and ministers, but never expected to have found such terrible effects of them, in so remote a country, governed, as I thought, by very different maxims from those in Europe. + +When I was just preparing to pay my attendance on the emperor of Blefuscu, a considerable person at court (to whom I had been very serviceable, at a time when he lay under the highest displeasure of his imperial majesty) came to my house very privately at night, in a close chair, and, without sending his name, desired admittance. The chairmen were dismissed; I put the chair, with his lordship in it, into my coat-pocket: and, giving orders to a trusty servant, to say I was indisposed and gone to sleep, I fastened the door of my house, placed the chair on the table, according to my usual custom, and sat down by it. After the common salutations were over, observing his lordship's countenance full of concern, and inquiring into the reason, he desired "I would hear him with patience, in a matter that highly concerned my honour and my life." His speech was to the following effect, for I took notes of it as soon as he left me:- + +"You are to know," said he, "that several committees of council have been lately called, in the most private manner, on your account; and it is but two days since his majesty came to a full resolution. + +"You are very sensible that Skyresh Bolgolam" (galbet, or high- admiral) "has been your mortal enemy, almost ever since your arrival. His original reasons I know not; but his hatred is increased since your great success against Blefuscu, by which his glory as admiral is much obscured. This lord, in conjunction with Flimnap the high-treasurer, whose enmity against you is notorious on account of his lady, Limtoc the general, Lalcon the chamberlain, and Balmuff the grand justiciary, have prepared articles of impeachment against you, for treason and other capital crimes." + +This preface made me so impatient, being conscious of my own merits and innocence, that I was going to interrupt him; when he entreated me to be silent, and thus proceeded:- + +"Out of gratitude for the favours you have done me, I procured information of the whole proceedings, and a copy of the articles; wherein I venture my head for your service. + +"'Articles of Impeachment against QUINBUS FLESTRIN, (the Man- Mountain.) + +ARTICLE I. + +"'Whereas, by a statute made in the reign of his imperial majesty Calin Deffar Plune, it is enacted, that, whoever shall make water within the precincts of the royal palace, shall be liable to the pains and penalties of high-treason; notwithstanding, the said Quinbus Flestrin, in open breach of the said law, under colour of extinguishing the fire kindled in the apartment of his majesty's most dear imperial consort, did maliciously, traitorously, and devilishly, by discharge of his urine, put out the said fire kindled in the said apartment, lying and being within the precincts of the said royal palace, against the statute in that case provided, etc. against the duty, etc. + +ARTICLE II. + +"'That the said Quinbus Flestrin, having brought the imperial fleet of Blefuscu into the royal port, and being afterwards commanded by his imperial majesty to seize all the other ships of the said empire of Blefuscu, and reduce that empire to a province, to be governed by a viceroy from hence, and to destroy and put to death, not only all the Big-endian exiles, but likewise all the people of that empire who would not immediately forsake the Big-endian heresy, he, the said Flestrin, like a false traitor against his most auspicious, serene, imperial majesty, did petition to be excused from the said service, upon pretence of unwillingness to force the consciences, or destroy the liberties and lives of an innocent people. + +ARTICLE III. + +"'That, whereas certain ambassadors arrived from the Court of Blefuscu, to sue for peace in his majesty's court, he, the said Flestrin, did, like a false traitor, aid, abet, comfort, and divert, the said ambassadors, although he knew them to be servants to a prince who was lately an open enemy to his imperial majesty, and in an open war against his said majesty. + +ARTICLE IV. + +"'That the said Quinbus Flestrin, contrary to the duty of a faithful subject, is now preparing to make a voyage to the court and empire of Blefuscu, for which he has received only verbal license from his imperial majesty; and, under colour of the said license, does falsely and traitorously intend to take the said voyage, and thereby to aid, comfort, and abet the emperor of Blefuscu, so lately an enemy, and in open war with his imperial majesty aforesaid.' + +"There are some other articles; but these are the most important, of which I have read you an abstract. + +"In the several debates upon this impeachment, it must be confessed that his majesty gave many marks of his great lenity; often urging the services you had done him, and endeavouring to extenuate your crimes. The treasurer and admiral insisted that you should be put to the most painful and ignominious death, by setting fire to your house at night, and the general was to attend with twenty thousand men, armed with poisoned arrows, to shoot you on the face and hands. Some of your servants were to have private orders to strew a poisonous juice on your shirts and sheets, which would soon make you tear your own flesh, and die in the utmost torture. The general came into the same opinion; so that for a long time there was a majority against you; but his majesty resolving, if possible, to spare your life, at last brought off the chamberlain. + +"Upon this incident, Reldresal, principal secretary for private affairs, who always approved himself your true friend, was commanded by the emperor to deliver his opinion, which he accordingly did; and therein justified the good thoughts you have of him. He allowed your crimes to be great, but that still there was room for mercy, the most commendable virtue in a prince, and for which his majesty was so justly celebrated. He said, the friendship between you and him was so well known to the world, that perhaps the most honourable board might think him partial; however, in obedience to the command he had received, he would freely offer his sentiments. That if his majesty, in consideration of your services, and pursuant to his own merciful disposition, would please to spare your life, and only give orders to put out both your eyes, he humbly conceived, that by this expedient justice might in some measure be satisfied, and all the world would applaud the lenity of the emperor, as well as the fair and generous proceedings of those who have the honour to be his counsellors. That the loss of your eyes would be no impediment to your bodily strength, by which you might still be useful to his majesty; that blindness is an addition to courage, by concealing dangers from us; that the fear you had for your eyes, was the greatest difficulty in bringing over the enemy's fleet, and it would be sufficient for you to see by the eyes of the ministers, since the greatest princes do no more. + +"This proposal was received with the utmost disapprobation by the whole board. Bolgolam, the admiral, could not preserve his temper, but, rising up in fury, said, he wondered how the secretary durst presume to give his opinion for preserving the life of a traitor; that the services you had performed were, by all true reasons of state, the great aggravation of your crimes; that you, who were able to extinguish the fire by discharge of urine in her majesty's apartment (which he mentioned with horror), might, at another time, raise an inundation by the same means, to drown the whole palace; and the same strength which enabled you to bring over the enemy's fleet, might serve, upon the first discontent, to carry it back; that he had good reasons to think you were a Big-endian in your heart; and, as treason begins in the heart, before it appears in overt-acts, so he accused you as a traitor on that account, and therefore insisted you should be put to death. + +"The treasurer was of the same opinion: he showed to what straits his majesty's revenue was reduced, by the charge of maintaining you, which would soon grow insupportable; that the secretary's expedient of putting out your eyes, was so far from being a remedy against this evil, that it would probably increase it, as is manifest from the common practice of blinding some kind of fowls, after which they fed the faster, and grew sooner fat; that his sacred majesty and the council, who are your judges, were, in their own consciences, fully convinced of your guilt, which was a sufficient argument to condemn you to death, without the formal proofs required by the strict letter of the law. + +"But his imperial majesty, fully determined against capital punishment, was graciously pleased to say, that since the council thought the loss of your eyes too easy a censure, some other way may be inflicted hereafter. And your friend the secretary, humbly desiring to be heard again, in answer to what the treasurer had objected, concerning the great charge his majesty was at in maintaining you, said, that his excellency, who had the sole disposal of the emperor's revenue, might easily provide against that evil, by gradually lessening your establishment; by which, for want of sufficient for you would grow weak and faint, and lose your appetite, and consequently, decay, and consume in a few months; neither would the stench of your carcass be then so dangerous, when it should become more than half diminished; and immediately upon your death five or six thousand of his majesty's subjects might, in two or three days, cut your flesh from your bones, take it away by cart-loads, and bury it in distant parts, to prevent infection, leaving the skeleton as a monument of admiration to posterity. + +"Thus, by the great friendship of the secretary, the whole affair was compromised. It was strictly enjoined, that the project of starving you by degrees should be kept a secret; but the sentence of putting out your eyes was entered on the books; none dissenting, except Bolgolam the admiral, who, being a creature of the empress, was perpetually instigated by her majesty to insist upon your death, she having borne perpetual malice against you, on account of that infamous and illegal method you took to extinguish the fire in her apartment. + +"In three days your friend the secretary will be directed to come to your house, and read before you the articles of impeachment; and then to signify the great lenity and favour of his majesty and council, whereby you are only condemned to the loss of your eyes, which his majesty does not question you will gratefully and humbly submit to; and twenty of his majesty's surgeons will attend, in order to see the operation well performed, by discharging very sharp-pointed arrows into the balls of your eyes, as you lie on the ground. + +"I leave to your prudence what measures you will take; and to avoid suspicion, I must immediately return in as private a manner as I came." + +His lordship did so; and I remained alone, under many doubts and perplexities of mind. + +It was a custom introduced by this prince and his ministry (very different, as I have been assured, from the practice of former times,) that after the court had decreed any cruel execution, either to gratify the monarch's resentment, or the malice of a favourite, the emperor always made a speech to his whole council, expressing his great lenity and tenderness, as qualities known and confessed by all the world. This speech was immediately published throughout the kingdom; nor did any thing terrify the people so much as those encomiums on his majesty's mercy; because it was observed, that the more these praises were enlarged and insisted on, the more inhuman was the punishment, and the sufferer more innocent. Yet, as to myself, I must confess, having never been designed for a courtier, either by my birth or education, I was so ill a judge of things, that I could not discover the lenity and favour of this sentence, but conceived it (perhaps erroneously) rather to be rigorous than gentle. I sometimes thought of standing my trial, for, although I could not deny the facts alleged in the several articles, yet I hoped they would admit of some extenuation. But having in my life perused many state-trials, which I ever observed to terminate as the judges thought fit to direct, I durst not rely on so dangerous a decision, in so critical a juncture, and against such powerful enemies. Once I was strongly bent upon resistance, for, while I had liberty the whole strength of that empire could hardly subdue me, and I might easily with stones pelt the metropolis to pieces; but I soon rejected that project with horror, by remembering the oath I had made to the emperor, the favours I received from him, and the high title of nardac he conferred upon me. Neither had I so soon learned the gratitude of courtiers, to persuade myself, that his majesty's present seventies acquitted me of all past obligations. + +At last, I fixed upon a resolution, for which it is probable I may incur some censure, and not unjustly; for I confess I owe the preserving of mine eyes, and consequently my liberty, to my own great rashness and want of experience; because, if I had then known the nature of princes and ministers, which I have since observed in many other courts, and their methods of treating criminals less obnoxious than myself, I should, with great alacrity and readiness, have submitted to so easy a punishment. But hurried on by the precipitancy of youth, and having his imperial majesty's license to pay my attendance upon the emperor of Blefuscu, I took this opportunity, before the three days were elapsed, to send a letter to my friend the secretary, signifying my resolution of setting out that morning for Blefuscu, pursuant to the leave I had got; and, without waiting for an answer, I went to that side of the island where our fleet lay. I seized a large man of war, tied a cable to the prow, and, lifting up the anchors, I stripped myself, put my clothes (together with my coverlet, which I carried under my arm) into the vessel, and, drawing it after me, between wading and swimming arrived at the royal port of Blefuscu, where the people had long expected me: they lent me two guides to direct me to the capital city, which is of the same name. I held them in my hands, till I came within two hundred yards of the gate, and desired them "to signify my arrival to one of the secretaries, and let him know, I there waited his majesty's command." I had an answer in about an hour, "that his majesty, attended by the royal family, and great officers of the court, was coming out to receive me." I advanced a hundred yards. The emperor and his train alighted from their horses, the empress and ladies from their coaches, and I did not perceive they were in any fright or concern. I lay on the ground to kiss his majesty's and the empress's hands. I told his majesty, "that I was come according to my promise, and with the license of the emperor my master, to have the honour of seeing so mighty a monarch, and to offer him any service in my power, consistent with my duty to my own prince;" not mentioning a word of my disgrace, because I had hitherto no regular information of it, and might suppose myself wholly ignorant of any such design; neither could I reasonably conceive that the emperor would discover the secret, while I was out of his power; wherein, however, it soon appeared I was deceived. + +I shall not trouble the reader with the particular account of my reception at this court, which was suitable to the generosity of so great a prince; nor of the difficulties I was in for want of a house and bed, being forced to lie on the ground, wrapped up in my coverlet. + +CHAPTER VIII. + +[The author, by a lucky accident, finds means to leave Blefuscu; and, after some difficulties, returns safe to his native country.] + +Three days after my arrival, walking out of curiosity to the north- east coast of the island, I observed, about half a league off in the sea, somewhat that looked like a boat overturned. I pulled off my shoes and stockings, and, wailing two or three hundred yards, I found the object to approach nearer by force of the tide; and then plainly saw it to be a real boat, which I supposed might by some tempest have been driven from a ship. Whereupon, I returned immediately towards the city, and desired his imperial majesty to lend me twenty of the tallest vessels he had left, after the loss of his fleet, and three thousand seamen, under the command of his vice-admiral. This fleet sailed round, while I went back the shortest way to the coast, where I first discovered the boat. I found the tide had driven it still nearer. The seamen were all provided with cordage, which I had beforehand twisted to a sufficient strength. When the ships came up, I stripped myself, and waded till I came within a hundred yards off the boat, after which I was forced to swim till I got up to it. The seamen threw me the end of the cord, which I fastened to a hole in the fore-part of the boat, and the other end to a man of war; but I found all my labour to little purpose; for, being out of my depth, I was not able to work. In this necessity I was forced to swim behind, and push the boat forward, as often as I could, with one of my hands; and the tide favouring me, I advanced so far that I could just hold up my chin and feel the ground. I rested two or three minutes, and then gave the boat another shove, and so on, till the sea was no higher than my arm-pits; and now, the most laborious part being over, I took out my other cables, which were stowed in one of the ships, and fastened them first to the boat, and then to nine of the vessels which attended me; the wind being favourable, the seamen towed, and I shoved, until we arrived within forty yards of the shore; and, waiting till the tide was out, I got dry to the boat, and by the assistance of two thousand men, with ropes and engines, I made a shift to turn it on its bottom, and found it was but little damaged. + +I shall not trouble the reader with the difficulties I was under, by the help of certain paddles, which cost me ten days making, to get my boat to the royal port of Blefuscu, where a mighty concourse of people appeared upon my arrival, full of wonder at the sight of so prodigious a vessel. I told the emperor "that my good fortune had thrown this boat in my way, to carry me to some place whence I might return into my native country; and begged his majesty's orders for getting materials to fit it up, together with his license to depart;" which, after some kind expostulations, he was pleased to grant. + +I did very much wonder, in all this time, not to have heard of any express relating to me from our emperor to the court of Blefuscu. But I was afterward given privately to understand, that his imperial majesty, never imagining I had the least notice of his designs, believed I was only gone to Blefuscu in performance of my promise, according to the license he had given me, which was well known at our court, and would return in a few days, when the ceremony was ended. But he was at last in pain at my long absence; and after consulting with the treasurer and the rest of that cabal, a person of quality was dispatched with the copy of the articles against me. This envoy had instructions to represent to the monarch of Blefuscu, "the great lenity of his master, who was content to punish me no farther than with the loss of mine eyes; that I had fled from justice; and if I did not return in two hours, I should be deprived of my title of nardac, and declared a traitor." The envoy further added, "that in order to maintain the peace and amity between both empires, his master expected that his brother of Blefuscu would give orders to have me sent back to Lilliput, bound hand and foot, to be punished as a traitor." + +The emperor of Blefuscu, having taken three days to consult, returned an answer consisting of many civilities and excuses. He said, "that as for sending me bound, his brother knew it was impossible; that, although I had deprived him of his fleet, yet he owed great obligations to me for many good offices I had done him in making the peace. That, however, both their majesties would soon be made easy; for I had found a prodigious vessel on the shore, able to carry me on the sea, which he had given orders to fit up, with my own assistance and direction; and he hoped, in a few weeks, both empires would be freed from so insupportable an encumbrance." + +With this answer the envoy returned to Lilliput; and the monarch of Blefuscu related to me all that had passed; offering me at the same time (but under the strictest confidence) his gracious protection, if I would continue in his service; wherein, although I believed him sincere, yet I resolved never more to put any confidence in princes or ministers, where I could possibly avoid it; and therefore, with all due acknowledgments for his favourable intentions, I humbly begged to be excused. I told him, "that since fortune, whether good or evil, had thrown a vessel in my way, I was resolved to venture myself on the ocean, rather than be an occasion of difference between two such mighty monarchs." Neither did I find the emperor at all displeased; and I discovered, by a certain accident, that he was very glad of my resolution, and so were most of his ministers. + +These considerations moved me to hasten my departure somewhat sooner than I intended; to which the court, impatient to have me gone, very readily contributed. Five hundred workmen were employed to make two sails to my boat, according to my directions, by quilting thirteen folds of their strongest linen together. I was at the pains of making ropes and cables, by twisting ten, twenty, or thirty of the thickest and strongest of theirs. A great stone that I happened to find, after a long search, by the sea-shore, served me for an anchor. I had the tallow of three hundred cows, for greasing my boat, and other uses. I was at incredible pains in cutting down some of the largest timber-trees, for oars and masts, wherein I was, however, much assisted by his majesty's ship- carpenters, who helped me in smoothing them, after I had done the rough work. + +In about a month, when all was prepared, I sent to receive his majesty's commands, and to take my leave. The emperor and royal family came out of the palace; I lay down on my face to kiss his hand, which he very graciously gave me: so did the empress and young princes of the blood. His majesty presented me with fifty purses of two hundred sprugs a-piece, together with his picture at full length, which I put immediately into one of my gloves, to keep it from being hurt. The ceremonies at my departure were too many to trouble the reader with at this time. + +I stored the boat with the carcases of a hundred oxen, and three hundred sheep, with bread and drink proportionable, and as much meat ready dressed as four hundred cooks could provide. I took with me six cows and two bulls alive, with as many ewes and rams, intending to carry them into my own country, and propagate the breed. And to feed them on board, I had a good bundle of hay, and a bag of corn. I would gladly have taken a dozen of the natives, but this was a thing the emperor would by no means permit; and, besides a diligent search into my pockets, his majesty engaged my honour "not to carry away any of his subjects, although with their own consent and desire." + +Having thus prepared all things as well as I was able, I set sail on the twenty-fourth day of September 1701, at six in the morning; and when I had gone about four-leagues to the northward, the wind being at south-east, at six in the evening I descried a small island, about half a league to the north-west. I advanced forward, and cast anchor on the lee-side of the island, which seemed to be uninhabited. I then took some refreshment, and went to my rest. I slept well, and as I conjectured at least six hours, for I found the day broke in two hours after I awaked. It was a clear night. I ate my breakfast before the sun was up; and heaving anchor, the wind being favourable, I steered the same course that I had done the day before, wherein I was directed by my pocket compass. My intention was to reach, if possible, one of those islands. which I had reason to believe lay to the north-east of Van Diemen's Land. I discovered nothing all that day; but upon the next, about three in the afternoon, when I had by my computation made twenty-four leagues from Blefuscu, I descried a sail steering to the south- east; my course was due east. I hailed her, but could get no answer; yet I found I gained upon her, for the wind slackened. I made all the sail I could, and in half an hour she spied me, then hung out her ancient, and discharged a gun. It is not easy to express the joy I was in, upon the unexpected hope of once more seeing my beloved country, and the dear pledges I left in it. The ship slackened her sails, and I came up with her between five and six in the evening, September 26th; but my heart leaped within me to see her English colours. I put my cows and sheep into my coat- pockets, and got on board with all my little cargo of provisions. The vessel was an English merchantman, returning from Japan by the North and South seas; the captain, Mr. John Biddel, of Deptford, a very civil man, and an excellent sailor. + +We were now in the latitude of 30 degrees south; there were about fifty men in the ship; and here I met an old comrade of mine, one Peter Williams, who gave me a good character to the captain. This gentleman treated me with kindness, and desired I would let him know what place I came from last, and whither I was bound; which I did in a few words, but he thought I was raving, and that the dangers I underwent had disturbed my head; whereupon I took my black cattle and sheep out of my pocket, which, after great astonishment, clearly convinced him of my veracity. I then showed him the gold given me by the emperor of Blefuscu, together with his majesty's picture at full length, and some other rarities of that country. I gave him two purses of two hundreds sprugs each, and promised, when we arrived in England, to make him a present of a cow and a sheep big with young. + +I shall not trouble the reader with a particular account of this voyage, which was very prosperous for the most part. We arrived in the Downs on the 13th of April, 1702. I had only one misfortune, that the rats on board carried away one of my sheep; I found her bones in a hole, picked clean from the flesh. The rest of my cattle I got safe ashore, and set them a-grazing in a bowling-green at Greenwich, where the fineness of the grass made them feed very heartily, though I had always feared the contrary: neither could I possibly have preserved them in so long a voyage, if the captain had not allowed me some of his best biscuit, which, rubbed to powder, and mingled with water, was their constant food. The short time I continued in England, I made a considerable profit by showing my cattle to many persons of quality and others: and before I began my second voyage, I sold them for six hundred pounds. Since my last return I find the breed is considerably increased, especially the sheep, which I hope will prove much to the advantage of the woollen manufacture, by the fineness of the fleeces. + +I stayed but two months with my wife and family, for my insatiable desire of seeing foreign countries, would suffer me to continue no longer. I left fifteen hundred pounds with my wife, and fixed her in a good house at Redriff. My remaining stock I carried with me, part in money and part in goods, in hopes to improve my fortunes. My eldest uncle John had left me an estate in land, near Epping, of about thirty pounds a-year; and I had a long lease of the Black Bull in Fetter-Lane, which yielded me as much more; so that I was not in any danger of leaving my family upon the parish. My son Johnny, named so after his uncle, was at the grammar-school, and a towardly child. My daughter Betty (who is now well married, and has children) was then at her needle-work. I took leave of my wife, and boy and girl, with tears on both sides, and went on board the Adventure, a merchant ship of three hundred tons, bound for Surat, captain John Nicholas, of Liverpool, commander. But my account of this voyage must be referred to the Second Part of my Travels. + +PART II. A VOYAGE TO BROBDINGNAG. + +CHAPTER I. + +[A great storm described; the long boat sent to fetch water; the author goes with it to discover the country. He is left on shore, is seized by one of the natives, and carried to a farmer's house. His reception, with several accidents that happened there. A description of the inhabitants.] + +Having been condemned, by nature and fortune, to active and restless life, in two months after my return, I again left my native country, and took shipping in the Downs, on the 20th day of June, 1702, in the Adventure, Captain John Nicholas, a Cornish man, commander, bound for Surat. We had a very prosperous gale, till we arrived at the Cape of Good Hope, where we landed for fresh water; but discovering a leak, we unshipped our goods and wintered there; for the captain falling sick of an ague, we could not leave the Cape till the end of March. We then set sail, and had a good voyage till we passed the Straits of Madagascar; but having got northward of that island, and to about five degrees south latitude, the winds, which in those seas are observed to blow a constant equal gale between the north and west, from the beginning of December to the beginning of May, on the 19th of April began to blow with much greater violence, and more westerly than usual, continuing so for twenty days together: during which time, we were driven a little to the east of the Molucca Islands, and about three degrees northward of the line, as our captain found by an observation he took the 2nd of May, at which time the wind ceased, and it was a perfect calm, whereat I was not a little rejoiced. But he, being a man well experienced in the navigation of those seas, bid us all prepare against a storm, which accordingly happened the day following: for the southern wind, called the southern monsoon, began to set in. + +Finding it was likely to overblow, we took in our sprit-sail, and stood by to hand the fore-sail; but making foul weather, we looked the guns were all fast, and handed the mizen. The ship lay very broad off, so we thought it better spooning before the sea, than trying or hulling. We reefed the fore-sail and set him, and hauled aft the fore-sheet; the helm was hard a-weather. The ship wore bravely. We belayed the fore down-haul; but the sail was split, and we hauled down the yard, and got the sail into the ship, and unbound all the things clear of it. It was a very fierce storm; the sea broke strange and dangerous. We hauled off upon the laniard of the whip-staff, and helped the man at the helm. We would not get down our topmast, but let all stand, because she scudded before the sea very well, and we knew that the top-mast being aloft, the ship was the wholesomer, and made better way through the sea, seeing we had sea-room. When the storm was over, we set fore-sail and main-sail, and brought the ship to. Then we set the mizen, main-top-sail, and the fore-top-sail. Our course was east-north-east, the wind was at south-west. We got the starboard tacks aboard, we cast off our weather-braces and lifts; we set in the lee-braces, and hauled forward by the weather- bowlings, and hauled them tight, and belayed them, and hauled over the mizen tack to windward, and kept her full and by as near as she would lie. + +During this storm, which was followed by a strong wind west-south- west, we were carried, by my computation, about five hundred leagues to the east, so that the oldest sailor on board could not tell in what part of the world we were. Our provisions held out well, our ship was staunch, and our crew all in good health; but we lay in the utmost distress for water. We thought it best to hold on the same course, rather than turn more northerly, which might have brought us to the north-west part of Great Tartary, and into the Frozen Sea. + +On the 16th day of June, 1703, a boy on the top-mast discovered land. On the 17th, we came in full view of a great island, or continent (for we knew not whether;) on the south side whereof was a small neck of land jutting out into the sea, and a creek too shallow to hold a ship of above one hundred tons. We cast anchor within a league of this creek, and our captain sent a dozen of his men well armed in the long-boat, with vessels for water, if any could be found. I desired his leave to go with them, that I might see the country, and make what discoveries I could. When we came to land we saw no river or spring, nor any sign of inhabitants. Our men therefore wandered on the shore to find out some fresh water near the sea, and I walked alone about a mile on the other side, where I observed the country all barren and rocky. I now began to be weary, and seeing nothing to entertain my curiosity, I returned gently down towards the creek; and the sea being full in my view, I saw our men already got into the boat, and rowing for life to the ship. I was going to holla after them, although it had been to little purpose, when I observed a huge creature walking after them in the sea, as fast as he could: he waded not much deeper than his knees, and took prodigious strides: but our men had the start of him half a league, and, the sea thereabouts being full of sharp-pointed rocks, the monster was not able to overtake the boat. This I was afterwards told, for I durst not stay to see the issue of the adventure; but ran as fast as I could the way I first went, and then climbed up a steep hill, which gave me some prospect of the country. I found it fully cultivated; but that which first surprised me was the length of the grass, which, in those grounds that seemed to be kept for hay, was about twenty feet high. + +I fell into a high road, for so I took it to be, though it served to the inhabitants only as a foot-path through a field of barley. Here I walked on for some time, but could see little on either side, it being now near harvest, and the corn rising at least forty feet. I was an hour walking to the end of this field, which was fenced in with a hedge of at least one hundred and twenty feet high, and the trees so lofty that I could make no computation of their altitude. There was a stile to pass from this field into the next. It had four steps, and a stone to cross over when you came to the uppermost. It was impossible for me to climb this stile, because every step was six-feet high, and the upper stone about twenty. I was endeavouring to find some gap in the hedge, when I discovered one of the inhabitants in the next field, advancing towards the stile, of the same size with him whom I saw in the sea pursuing our boat. He appeared as tall as an ordinary spire steeple, and took about ten yards at every stride, as near as I could guess. I was struck with the utmost fear and astonishment, and ran to hide myself in the corn, whence I saw him at the top of the stile looking back into the next field on the right hand, and heard him call in a voice many degrees louder than a speaking- trumpet: but the noise was so high in the air, that at first I certainly thought it was thunder. Whereupon seven monsters, like himself, came towards him with reaping-hooks in their hands, each hook about the largeness of six scythes. These people were not so well clad as the first, whose servants or labourers they seemed to be; for, upon some words he spoke, they went to reap the corn in the field where I lay. I kept from them at as great a distance as I could, but was forced to move with extreme difficulty, for the stalks of the corn were sometimes not above a foot distant, so that I could hardly squeeze my body betwixt them. However, I made a shift to go forward, till I came to a part of the field where the corn had been laid by the rain and wind. Here it was impossible for me to advance a step; for the stalks were so interwoven, that I could not creep through, and the beards of the fallen ears so strong and pointed, that they pierced through my clothes into my flesh. At the same time I heard the reapers not a hundred yards behind me. Being quite dispirited with toil, and wholly overcome by grief and dispair, I lay down between two ridges, and heartily wished I might there end my days. I bemoaned my desolate widow and fatherless children. I lamented my own folly and wilfulness, in attempting a second voyage, against the advice of all my friends and relations. In this terrible agitation of mind, I could not forbear thinking of Lilliput, whose inhabitants looked upon me as the greatest prodigy that ever appeared in the world; where I was able to draw an imperial fleet in my hand, and perform those other actions, which will be recorded for ever in the chronicles of that empire, while posterity shall hardly believe them, although attested by millions. I reflected what a mortification it must prove to me, to appear as inconsiderable in this nation, as one single Lilliputian would be among us. But this I conceived was to be the least of my misfortunes; for, as human creatures are observed to be more savage and cruel in proportion to their bulk, what could I expect but to be a morsel in the mouth of the first among these enormous barbarians that should happen to seize me? Undoubtedly philosophers are in the right, when they tell us that nothing is great or little otherwise than by comparison. It might have pleased fortune, to have let the Lilliputians find some nation, where the people were as diminutive with respect to them, as they were to me. And who knows but that even this prodigious race of mortals might be equally overmatched in some distant part of the world, whereof we have yet no discovery. + +Scared and confounded as I was, I could not forbear going on with these reflections, when one of the reapers, approaching within ten yards of the ridge where I lay, made me apprehend that with the next step I should be squashed to death under his foot, or cut in two with his reaping-hook. And therefore, when he was again about to move, I screamed as loud as fear could make me: whereupon the huge creature trod short, and, looking round about under him for some time, at last espied me as I lay on the ground. He considered awhile, with the caution of one who endeavours to lay hold on a small dangerous animal in such a manner that it shall not be able either to scratch or bite him, as I myself have sometimes done with a weasel in England. At length he ventured to take me behind, by the middle, between his fore-finger and thumb, and brought me within three yards of his eyes, that he might behold my shape more perfectly. I guessed his meaning, and my good fortune gave me so much presence of mind, that I resolved not to struggle in the least as he held me in the air above sixty feet from the ground, although he grievously pinched my sides, for fear I should slip through his fingers. All I ventured was to raise mine eyes towards the sun, and place my hands together in a supplicating posture, and to speak some words in a humble melancholy tone, suitable to the condition I then was in: for I apprehended every moment that he would dash me against the ground, as we usually do any little hateful animal, which we have a mind to destroy. But my good star would have it, that he appeared pleased with my voice and gestures, and began to look upon me as a curiosity, much wondering to hear me pronounce articulate words, although he could not understand them. In the mean time I was not able to forbear groaning and shedding tears, and turning my head towards my sides; letting him know, as well as I could, how cruelly I was hurt by the pressure of his thumb and finger. He seemed to apprehend my meaning; for, lifting up the lappet of his coat, he put me gently into it, and immediately ran along with me to his master, who was a substantial farmer, and the same person I had first seen in the field. + +The farmer having (as I suppose by their talk) received such an account of me as his servant could give him, took a piece of a small straw, about the size of a walking-staff, and therewith lifted up the lappets of my coat; which it seems he thought to be some kind of covering that nature had given me. He blew my hairs aside to take a better view of my face. He called his hinds about him, and asked them, as I afterwards learned, whether they had ever seen in the fields any little creature that resembled me. He then placed me softly on the ground upon all fours, but I got immediately up, and walked slowly backward and forward, to let those people see I had no intent to run away. They all sat down in a circle about me, the better to observe my motions. I pulled off my hat, and made a low bow towards the farmer. I fell on my knees, and lifted up my hands and eyes, and spoke several words as loud as I could: I took a purse of gold out of my pocket, and humbly presented it to him. He received it on the palm of his hand, then applied it close to his eye to see what it was, and afterwards turned it several times with the point of a pin (which he took out of his sleeve,) but could make nothing of it. Whereupon I made a sign that he should place his hand on the ground. I then took the purse, and, opening it, poured all the gold into his palm. There were six Spanish pieces of four pistoles each, beside twenty or thirty smaller coins. I saw him wet the tip of his little finger upon his tongue, and take up one of my largest pieces, and then another; but he seemed to be wholly ignorant what they were. He made me a sign to put them again into my purse, and the purse again into my pocket, which, after offering it to him several times, I thought it best to do. + +The farmer, by this time, was convinced I must be a rational creature. He spoke often to me; but the sound of his voice pierced my ears like that of a water-mill, yet his words were articulate enough. I answered as loud as I could in several languages, and he often laid his ear within two yards of me: but all in vain, for we were wholly unintelligible to each other. He then sent his servants to their work, and taking his handkerchief out of his pocket, he doubled and spread it on his left hand, which he placed flat on the ground with the palm upward, making me a sign to step into it, as I could easily do, for it was not above a foot in thickness. I thought it my part to obey, and, for fear of falling, laid myself at full length upon the handkerchief, with the remainder of which he lapped me up to the head for further security, and in this manner carried me home to his house. There he called his wife, and showed me to her; but she screamed and ran back, as women in England do at the sight of a toad or a spider. However, when she had a while seen my behaviour, and how well I observed the signs her husband made, she was soon reconciled, and by degrees grew extremely tender of me. + +It was about twelve at noon, and a servant brought in dinner. It was only one substantial dish of meat (fit for the plain condition of a husbandman,) in a dish of about four-and-twenty feet diameter. The company were, the farmer and his wife, three children, and an old grandmother. When they were sat down, the farmer placed me at some distance from him on the table, which was thirty feet high from the floor. I was in a terrible fright, and kept as far as I could from the edge, for fear of falling. The wife minced a bit of meat, then crumbled some bread on a trencher, and placed it before me. I made her a low bow, took out my knife and fork, and fell to eat, which gave them exceeding delight. The mistress sent her maid for a small dram cup, which held about two gallons, and filled it with drink; I took up the vessel with much difficulty in both hands, and in a most respectful manner drank to her ladyship's health, expressing the words as loud as I could in English, which made the company laugh so heartily, that I was almost deafened with the noise. This liquor tasted like a small cider, and was not unpleasant. Then the master made me a sign to come to his trencher side; but as I walked on the table, being in great surprise all the time, as the indulgent reader will easily conceive and excuse, I happened to stumble against a crust, and fell flat on my face, but received no hurt. I got up immediately, and observing the good people to be in much concern, I took my hat (which I held under my arm out of good manners,) and waving it over my head, made three huzzas, to show I had got no mischief by my fall. But advancing forward towards my master (as I shall henceforth call him,) his youngest son, who sat next to him, an arch boy of about ten years old, took me up by the legs, and held me so high in the air, that I trembled every limb: but his father snatched me from him, and at the same time gave him such a box on the left ear, as would have felled an European troop of horse to the earth, ordering him to be taken from the table. But being afraid the boy might owe me a spite, and well remembering how mischievous all children among us naturally are to sparrows, rabbits, young kittens, and puppy dogs, I fell on my knees, and pointing to the boy, made my master to understand, as well as I could, that I desired his son might be pardoned. The father complied, and the lad took his seat again, whereupon I went to him, and kissed his hand, which my master took, and made him stroke me gently with it. + +In the midst of dinner, my mistress's favourite cat leaped into her lap. I heard a noise behind me like that of a dozen stocking- weavers at work; and turning my head, I found it proceeded from the purring of that animal, who seemed to be three times larger than an ox, as I computed by the view of her head, and one of her paws, while her mistress was feeding and stroking her. The fierceness of this creature's countenance altogether discomposed me; though I stood at the farther end of the table, above fifty feet off; and although my mistress held her fast, for fear she might give a spring, and seize me in her talons. But it happened there was no danger, for the cat took not the least notice of me when my master placed me within three yards of her. And as I have been always told, and found true by experience in my travels, that flying or discovering fear before a fierce animal, is a certain way to make it pursue or attack you, so I resolved, in this dangerous juncture, to show no manner of concern. I walked with intrepidity five or six times before the very head of the cat, and came within half a yard of her; whereupon she drew herself back, as if she were more afraid of me: I had less apprehension concerning the dogs, whereof three or four came into the room, as it is usual in farmers' houses; one of which was a mastiff, equal in bulk to four elephants, and another a greyhound, somewhat taller than the mastiff, but not so large. + +When dinner was almost done, the nurse came in with a child of a year old in her arms, who immediately spied me, and began a squall that you might have heard from London-Bridge to Chelsea, after the usual oratory of infants, to get me for a plaything. The mother, out of pure indulgence, took me up, and put me towards the child, who presently seized me by the middle, and got my head into his mouth, where I roared so loud that the urchin was frighted, and let me drop, and I should infallibly have broke my neck, if the mother had not held her apron under me. The nurse, to quiet her babe, made use of a rattle which was a kind of hollow vessel filled with great stones, and fastened by a cable to the child's waist: but all in vain; so that she was forced to apply the last remedy by giving it suck. I must confess no object ever disgusted me so much as the sight of her monstrous breast, which I cannot tell what to compare with, so as to give the curious reader an idea of its bulk, shape, and colour. It stood prominent six feet, and could not be less than sixteen in circumference. The nipple was about half the bigness of my head, and the hue both of that and the dug, so varied with spots, pimples, and freckles, that nothing could appear more nauseous: for I had a near sight of her, she sitting down, the more conveniently to give suck, and I standing on the table. This made me reflect upon the fair skins of our English ladies, who appear so beautiful to us, only because they are of our own size, and their defects not to be seen but through a magnifying glass; where we find by experiment that the smoothest and whitest skins look rough, and coarse, and ill-coloured. + +I remember when I was at Lilliput, the complexion of those diminutive people appeared to me the fairest in the world; and talking upon this subject with a person of learning there, who was an intimate friend of mine, he said that my face appeared much fairer and smoother when he looked on me from the ground, than it did upon a nearer view, when I took him up in my hand, and brought him close, which he confessed was at first a very shocking sight. He said, "he could discover great holes in my skin; that the stumps of my beard were ten times stronger than the bristles of a boar, and my complexion made up of several colours altogether disagreeable:" although I must beg leave to say for myself, that I am as fair as most of my sex and country, and very little sunburnt by all my travels. On the other side, discoursing of the ladies in that emperor's court, he used to tell me, "one had freckles; another too wide a mouth; a third too large a nose;" nothing of which I was able to distinguish. I confess this reflection was obvious enough; which, however, I could not forbear, lest the reader might think those vast creatures were actually deformed: for I must do them the justice to say, they are a comely race of people, and particularly the features of my master's countenance, although he was but a farmer, when I beheld him from the height of sixty feet, appeared very well proportioned. + +When dinner was done, my master went out to his labourers, and, as I could discover by his voice and gesture, gave his wife strict charge to take care of me. I was very much tired, and disposed to sleep, which my mistress perceiving, she put me on her own bed, and covered me with a clean white handkerchief, but larger and coarser than the mainsail of a man-of-war. + +I slept about two hours, and dreamt I was at home with my wife and children, which aggravated my sorrows when I awaked, and found myself alone in a vast room, between two and three hundred feet wide, and above two hundred high, lying in a bed twenty yards wide. My mistress was gone about her household affairs, and had locked me in. The bed was eight yards from the floor. Some natural necessities required me to get down; I durst not presume to call; and if I had, it would have been in vain, with such a voice as mine, at so great a distance from the room where I lay to the kitchen where the family kept. While I was under these circumstances, two rats crept up the curtains, and ran smelling backwards and forwards on the bed. One of them came up almost to my face, whereupon I rose in a fright, and drew out my hanger to defend myself. These horrible animals had the boldness to attack me on both sides, and one of them held his fore-feet at my collar; but I had the good fortune to rip up his belly before he could do me any mischief. He fell down at my feet; and the other, seeing the fate of his comrade, made his escape, but not without one good wound on the back, which I gave him as he fled, and made the blood run trickling from him. After this exploit, I walked gently to and fro on the bed, to recover my breath and loss of spirits. These creatures were of the size of a large mastiff, but infinitely more nimble and fierce; so that if I had taken off my belt before I went to sleep, I must have infallibly been torn to pieces and devoured. I measured the tail of the dead rat, and found it to be two yards long, wanting an inch; but it went against my stomach to drag the carcass off the bed, where it lay still bleeding; I observed it had yet some life, but with a strong slash across the neck, I thoroughly despatched it. + +Soon after my mistress came into the room, who seeing me all bloody, ran and took me up in her hand. I pointed to the dead rat, smiling, and making other signs to show I was not hurt; whereat she was extremely rejoiced, calling the maid to take up the dead rat with a pair of tongs, and throw it out of the window. Then she set me on a table, where I showed her my hanger all bloody, and wiping it on the lappet of my coat, returned it to the scabbard. I was pressed to do more than one thing which another could not do for me, and therefore endeavoured to make my mistress understand, that I desired to be set down on the floor; which after she had done, my bashfulness would not suffer me to express myself farther, than by pointing to the door, and bowing several times. The good woman, with much difficulty, at last perceived what I would be at, and taking me up again in her hand, walked into the garden, where she set me down. I went on one side about two hundred yards, and beckoning to her not to look or to follow me, I hid myself between two leaves of sorrel, and there discharged the necessities of nature. + +I hope the gentle reader will excuse me for dwelling on these and the like particulars, which, however insignificant they may appear to groveling vulgar minds, yet will certainly help a philosopher to enlarge his thoughts and imagination, and apply them to the benefit of public as well as private life, which was my sole design in presenting this and other accounts of my travels to the world; wherein I have been chiefly studious of truth, without affecting any ornaments of learning or of style. But the whole scene of this voyage made so strong an impression on my mind, and is so deeply fixed in my memory, that, in committing it to paper I did not omit one material circumstance: however, upon a strict review, I blotted out several passages. Of less moment which were in my first copy, for fear of being censured as tedious and trifling, whereof travellers are often, perhaps not without justice, accused. + +CHAPTER II. + +[A description of the farmer's daughter. The author carried to a market-town, and then to the metropolis. The particulars of his journey.] + +My mistress had a daughter of nine years old, a child of towardly parts for her age, very dexterous at her needle, and skilful in dressing her baby. Her mother and she contrived to fit up the baby's cradle for me against night: the cradle was put into a small drawer of a cabinet, and the drawer placed upon a hanging shelf for fear of the rats. This was my bed all the time I staid with those people, though made more convenient by degrees, as I began to learn their language and make my wants known. This young girl was so handy, that after I had once or twice pulled off my clothes before her, she was able to dress and undress me, though I never gave her that trouble when she would let me do either myself. She made me seven shirts, and some other linen, of as fine cloth as could be got, which indeed was coarser than sackcloth; and these she constantly washed for me with her own hands. She was likewise my school-mistress, to teach me the language: when I pointed to any thing, she told me the name of it in her own tongue, so that in a few days I was able to call for whatever I had a mind to. She was very good-natured, and not above forty feet high, being little for her age. She gave me the name of Grildrig, which the family took up, and afterwards the whole kingdom. The word imports what the Latins call nanunculus, the Italians homunceletino, and the English mannikin. To her I chiefly owe my preservation in that country: we never parted while I was there; I called her my Glumdalclitch, or little nurse; and should be guilty of great ingratitude, if I omitted this honourable mention of her care and affection towards me, which I heartily wish it lay in my power to requite as she deserves, instead of being the innocent, but unhappy instrument of her disgrace, as I have too much reason to fear. + +It now began to be known and talked of in the neighbourhood, that my master had found a strange animal in the field, about the bigness of a splacnuck, but exactly shaped in every part like a human creature; which it likewise imitated in all its actions; seemed to speak in a little language of its own, had already learned several words of theirs, went erect upon two legs, was tame and gentle, would come when it was called, do whatever it was bid, had the finest limbs in the world, and a complexion fairer than a nobleman's daughter of three years old. Another farmer, who lived hard by, and was a particular friend of my master, came on a visit on purpose to inquire into the truth of this story. I was immediately produced, and placed upon a table, where I walked as I was commanded, drew my hanger, put it up again, made my reverence to my master's guest, asked him in his own language how he did, and told him HE WAS WELCOME, just as my little nurse had instructed me. This man, who was old and dim-sighted, put on his spectacles to behold me better; at which I could not forbear laughing very heartily, for his eyes appeared like the full moon shining into a chamber at two windows. Our people, who discovered the cause of my mirth, bore me company in laughing, at which the old fellow was fool enough to be angry and out of countenance. He had the character of a great miser; and, to my misfortune, he well deserved it, by the cursed advice he gave my master, to show me as a sight upon a market-day in the next town, which was half an hour's riding, about two-and-twenty miles from our house. I guessed there was some mischief when I observed my master and his friend whispering together, sometimes pointing at me; and my fears made me fancy that I overheard and understood some of their words. But the next morning Glumdalclitch, my little nurse, told me the whole matter, which she had cunningly picked out from her mother. The poor girl laid me on her bosom, and fell a weeping with shame and grief. She apprehended some mischief would happen to me from rude vulgar folks, who might squeeze me to death, or break one of my limbs by taking me in their hands. She had also observed how modest I was in my nature, how nicely I regarded my honour, and what an indignity I should conceive it, to be exposed for money as a public spectacle, to the meanest of the people. She said, her papa and mamma had promised that Grildrig should be hers; but now she found they meant to serve her as they did last year, when they pretended to give her a lamb, and yet, as soon as it was fat, sold it to a butcher. For my own part, I may truly affirm, that I was less concerned than my nurse. I had a strong hope, which never left me, that I should one day recover my liberty: and as to the ignominy of being carried about for a monster, I considered myself to be a perfect stranger in the country, and that such a misfortune could never be charged upon me as a reproach, if ever I should return to England, since the king of Great Britain himself, in my condition, must have undergone the same distress. + +My master, pursuant to the advice of his friend, carried me in a box the next market-day to the neighbouring town, and took along with him his little daughter, my nurse, upon a pillion behind him. The box was close on every side, with a little door for me to go in and out, and a few gimlet holes to let in air. The girl had been so careful as to put the quilt of her baby's bed into it, for me to lie down on. However, I was terribly shaken and discomposed in this journey, though it was but of half an hour: for the horse went about forty feet at every step and trotted so high, that the agitation was equal to the rising and falling of a ship in a great storm, but much more frequent. Our journey was somewhat farther than from London to St. Alban's. My master alighted at an inn which he used to frequent; and after consulting awhile with the inn-keeper, and making some necessary preparations, he hired the grultrud, or crier, to give notice through the town of a strange creature to be seen at the sign of the Green Eagle, not so big as a splacnuck (an animal in that country very finely shaped, about six feet long,) and in every part of the body resembling a human creature, could speak several words, and perform a hundred diverting tricks. + +I was placed upon a table in the largest room of the inn, which might be near three hundred feet square. My little nurse stood on a low stool close to the table, to take care of me, and direct what I should do. My master, to avoid a crowd, would suffer only thirty people at a time to see me. I walked about on the table as the girl commanded; she asked me questions, as far as she knew my understanding of the language reached, and I answered them as loud as I could. I turned about several times to the company, paid my humble respects, said THEY WERE WELCOME, and used some other speeches I had been taught. I took up a thimble filled with liquor, which Glumdalclitch had given me for a cup, and drank their health, I drew out my hanger, and flourished with it after the manner of fencers in England. My nurse gave me a part of a straw, which I exercised as a pike, having learnt the art in my youth. I was that day shown to twelve sets of company, and as often forced to act over again the same fopperies, till I was half dead with weariness and vexation; for those who had seen me made such wonderful reports, that the people were ready to break down the doors to come in. My master, for his own interest, would not suffer any one to touch me except my nurse; and to prevent danger, benches were set round the table at such a distance as to put me out of every body's reach. However, an unlucky school-boy aimed a hazel nut directly at my head, which very narrowly missed me; otherwise it came with so much violence, that it would have infallibly knocked out my brains, for it was almost as large as a small pumpkin, but I had the satisfaction to see the young rogue well beaten, and turned out of the room. + +My master gave public notice that he would show me again the next market-day; and in the meantime he prepared a convenient vehicle for me, which he had reason enough to do; for I was so tired with my first journey, and with entertaining company for eight hours together, that I could hardly stand upon my legs, or speak a word. It was at least three days before I recovered my strength; and that I might have no rest at home, all the neighbouring gentlemen from a hundred miles round, hearing of my fame, came to see me at my master's own house. There could not be fewer than thirty persons with their wives and children (for the country is very populous;) and my master demanded the rate of a full room whenever he showed me at home, although it were only to a single family; so that for some time I had but little ease every day of the week (except Wednesday, which is their Sabbath,) although I were not carried to the town. + +My master, finding how profitable I was likely to be, resolved to carry me to the most considerable cities of the kingdom. Having therefore provided himself with all things necessary for a long journey, and settled his affairs at home, he took leave of his wife, and upon the 17th of August, 1703, about two months after my arrival, we set out for the metropolis, situate near the middle of that empire, and about three thousand miles distance from our house. My master made his daughter Glumdalclitch ride behind him. She carried me on her lap, in a box tied about her waist. The girl had lined it on all sides with the softest cloth she could get, well quilted underneath, furnished it with her baby's bed, provided me with linen and other necessaries, and made everything as convenient as she could. We had no other company but a boy of the house, who rode after us with the luggage. + +My master's design was to show me in all the towns by the way, and to step out of the road for fifty or a hundred miles, to any village, or person of quality's house, where he might expect custom. We made easy journeys, of not above seven or eight score miles a-day; for Glumdalclitch, on purpose to spare me, complained she was tired with the trotting of the horse. She often took me out of my box, at my own desire, to give me air, and show me the country, but always held me fast by a leading-string. We passed over five or six rivers, many degrees broader and deeper than the Nile or the Ganges: and there was hardly a rivulet so small as the Thames at London-bridge. We were ten weeks in our journey, and I was shown in eighteen large towns, besides many villages, and private families. + +On the 26th day of October we arrived at the metropolis, called in their language Lorbrulgrud, or Pride of the Universe. My master took a lodging in the principal street of the city, not far from the royal palace, and put out bills in the usual form, containing an exact description of my person and parts. He hired a large room between three and four hundred feet wide. He provided a table sixty feet in diameter, upon which I was to act my part, and pallisadoed it round three feet from the edge, and as many high, to prevent my falling over. I was shown ten times a-day, to the wonder and satisfaction of all people. I could now speak the language tolerably well, and perfectly understood every word, that was spoken to me. Besides, I had learnt their alphabet, and could make a shift to explain a sentence here and there; for Glumdalclitch had been my instructor while we were at home, and at leisure hours during our journey. She carried a little book in her pocket, not much larger than a Sanson's Atlas; it was a common treatise for the use of young girls, giving a short account of their religion: out of this she taught me my letters, and interpreted the words. + +CHAPTER III. + +[The author sent for to court. The queen buys him of his master the farmer, and presents him to the king. He disputes with his majesty's great scholars. An apartment at court provided for the author. He is in high favour with the queen. He stands up for the honour of his own country. His quarrels with the queen's dwarf.] + +The frequent labours I underwent every day, made, in a few weeks, a very considerable change in my health: the more my master got by me, the more insatiable he grew. I had quite lost my stomach, and was almost reduced to a skeleton. The farmer observed it, and concluding I must soon die, resolved to make as good a hand of me as he could. While he was thus reasoning and resolving with himself, a sardral, or gentleman-usher, came from court, commanding my master to carry me immediately thither for the diversion of the queen and her ladies. Some of the latter had already been to see me, and reported strange things of my beauty, behaviour, and good sense. Her majesty, and those who attended her, were beyond measure delighted with my demeanour. I fell on my knees, and begged the honour of kissing her imperial foot; but this gracious princess held out her little finger towards me, after I was set on the table, which I embraced in both my arms, and put the tip of it with the utmost respect to my lip. She made me some general questions about my country and my travels, which I answered as distinctly, and in as few words as I could. She asked, "whether I could be content to live at court?" I bowed down to the board of the table, and humbly answered "that I was my master's slave: but, if I were at my own disposal, I should be proud to devote my life to her majesty's service." She then asked my master, "whether he was willing to sell me at a good price?" He, who apprehended I could not live a month, was ready enough to part with me, and demanded a thousand pieces of gold, which were ordered him on the spot, each piece being about the bigness of eight hundred moidores; but allowing for the proportion of all things between that country and Europe, and the high price of gold among them, was hardly so great a sum as a thousand guineas would be in England. I then said to the queen, "since I was now her majesty's most humble creature and vassal, I must beg the favour, that Glumdalclitch, who had always tended me with so much care and kindness, and understood to do it so well, might be admitted into her service, and continue to be my nurse and instructor." + +Her majesty agreed to my petition, and easily got the farmer's consent, who was glad enough to have his daughter preferred at court, and the poor girl herself was not able to hide her joy. My late master withdrew, bidding me farewell, and saying he had left me in a good service; to which I replied not a word, only making him a slight bow. + +The queen observed my coldness; and, when the farmer was gone out of the apartment, asked me the reason. I made bold to tell her majesty, "that I owed no other obligation to my late master, than his not dashing out the brains of a poor harmless creature, found by chance in his fields: which obligation was amply recompensed, by the gain he had made in showing me through half the kingdom, and the price he had now sold me for. That the life I had since led was laborious enough to kill an animal of ten times my strength. That my health was much impaired, by the continual drudgery of entertaining the rabble every hour of the day; and that, if my master had not thought my life in danger, her majesty would not have got so cheap a bargain. But as I was out of all fear of being ill-treated under the protection of so great and good an empress, the ornament of nature, the darling of the world, the delight of her subjects, the phoenix of the creation, so I hoped my late master's apprehensions would appear to be groundless; for I already found my spirits revive, by the influence of her most august presence." + +This was the sum of my speech, delivered with great improprieties and hesitation. The latter part was altogether framed in the style peculiar to that people, whereof I learned some phrases from Glumdalclitch, while she was carrying me to court. + +The queen, giving great allowance for my defectiveness in speaking, was, however, surprised at so much wit and good sense in so diminutive an animal. She took me in her own hand, and carried me to the king, who was then retired to his cabinet. His majesty, a prince of much gravity and austere countenance, not well observing my shape at first view, asked the queen after a cold manner "how long it was since she grew fond of a splacnuck?" for such it seems he took me to be, as I lay upon my breast in her majesty's right hand. But this princess, who has an infinite deal of wit and humour, set me gently on my feet upon the scrutoire, and commanded me to give his majesty an account of myself, which I did in a very few words: and Glumdalclitch who attended at the cabinet door, and could not endure I should be out of her sight, being admitted, confirmed all that had passed from my arrival at her father's house. + +The king, although he be as learned a person as any in his dominions, had been educated in the study of philosophy, and particularly mathematics; yet when he observed my shape exactly, and saw me walk erect, before I began to speak, conceived I might be a piece of clock-work (which is in that country arrived to a very great perfection) contrived by some ingenious artist. But when he heard my voice, and found what I delivered to be regular and rational, he could not conceal his astonishment. He was by no means satisfied with the relation I gave him of the manner I came into his kingdom, but thought it a story concerted between Glumdalclitch and her father, who had taught me a set of words to make me sell at a better price. Upon this imagination, he put several other questions to me, and still received rational answers: no otherwise defective than by a foreign accent, and an imperfect knowledge in the language, with some rustic phrases which I had learned at the farmer's house, and did not suit the polite style of a court. + +His majesty sent for three great scholars, who were then in their weekly waiting, according to the custom in that country. These gentlemen, after they had a while examined my shape with much nicety, were of different opinions concerning me. They all agreed that I could not be produced according to the regular laws of nature, because I was not framed with a capacity of preserving my life, either by swiftness, or climbing of trees, or digging holes in the earth. They observed by my teeth, which they viewed with great exactness, that I was a carnivorous animal; yet most quadrupeds being an overmatch for me, and field mice, with some others, too nimble, they could not imagine how I should be able to support myself, unless I fed upon snails and other insects, which they offered, by many learned arguments, to evince that I could not possibly do. One of these virtuosi seemed to think that I might be an embryo, or abortive birth. But this opinion was rejected by the other two, who observed my limbs to be perfect and finished; and that I had lived several years, as it was manifest from my beard, the stumps whereof they plainly discovered through a magnifying glass. They would not allow me to be a dwarf, because my littleness was beyond all degrees of comparison; for the queen's favourite dwarf, the smallest ever known in that kingdom, was near thirty feet high. After much debate, they concluded unanimously, that I was only relplum scalcath, which is interpreted literally lusus naturae; a determination exactly agreeable to the modern philosophy of Europe, whose professors, disdaining the old evasion of occult causes, whereby the followers of Aristotle endeavoured in vain to disguise their ignorance, have invented this wonderful solution of all difficulties, to the unspeakable advancement of human knowledge. + +After this decisive conclusion, I entreated to be heard a word or two. I applied myself to the king, and assured his majesty, "that I came from a country which abounded with several millions of both sexes, and of my own stature; where the animals, trees, and houses, were all in proportion, and where, by consequence, I might be as able to defend myself, and to find sustenance, as any of his majesty's subjects could do here; which I took for a full answer to those gentlemen's arguments." To this they only replied with a smile of contempt, saying, "that the farmer had instructed me very well in my lesson." The king, who had a much better understanding, dismissing his learned men, sent for the farmer, who by good fortune was not yet gone out of town. Having therefore first examined him privately, and then confronted him with me and the young girl, his majesty began to think that what we told him might possibly be true. He desired the queen to order that a particular care should be taken of me; and was of opinion that Glumdalclitch should still continue in her office of tending me, because he observed we had a great affection for each other. A convenient apartment was provided for her at court: she had a sort of governess appointed to take care of her education, a maid to dress her, and two other servants for menial offices; but the care of me was wholly appropriated to herself. The queen commanded her own cabinet-maker to contrive a box, that might serve me for a bedchamber, after the model that Glumdalclitch and I should agree upon. This man was a most ingenious artist, and according to my direction, in three weeks finished for me a wooden chamber of sixteen feet square, and twelve high, with sash-windows, a door, and two closets, like a London bed-chamber. The board, that made the ceiling, was to be lifted up and down by two hinges, to put in a bed ready furnished by her majesty's upholsterer, which Glumdalclitch took out every day to air, made it with her own hands, and letting it down at night, locked up the roof over me. A nice workman, who was famous for little curiosities, undertook to make me two chairs, with backs and frames, of a substance not unlike ivory, and two tables, with a cabinet to put my things in. The room was quilted on all sides, as well as the floor and the ceiling, to prevent any accident from the carelessness of those who carried me, and to break the force of a jolt, when I went in a coach. I desired a lock for my door, to prevent rats and mice from coming in. The smith, after several attempts, made the smallest that ever was seen among them, for I have known a larger at the gate of a gentleman's house in England. I made a shift to keep the key in a pocket of my own, fearing Glumdalclitch might lose it. The queen likewise ordered the thinnest silks that could be gotten, to make me clothes, not much thicker than an English blanket, very cumbersome till I was accustomed to them. They were after the fashion of the kingdom, partly resembling the Persian, and partly the Chinese, and are a very grave and decent habit. + +The queen became so fond of my company, that she could not dine without me. I had a table placed upon the same at which her majesty ate, just at her left elbow, and a chair to sit on. Glumdalclitch stood on a stool on the floor near my table, to assist and take care of me. I had an entire set of silver dishes and plates, and other necessaries, which, in proportion to those of the queen, were not much bigger than what I have seen in a London toy-shop for the furniture of a baby-house: these my little nurse kept in her pocket in a silver box, and gave me at meals as I wanted them, always cleaning them herself. No person dined with the queen but the two princesses royal, the eldest sixteen years old, and the younger at that time thirteen and a month. Her majesty used to put a bit of meat upon one of my dishes, out of which I carved for myself, and her diversion was to see me eat in miniature: for the queen (who had indeed but a weak stomach) took up, at one mouthful, as much as a dozen English farmers could eat at a meal, which to me was for some time a very nauseous sight. She would craunch the wing of a lark, bones and all, between her teeth, although it were nine times as large as that of a full-grown turkey; and put a bit of bread into her mouth as big as two twelve- penny loaves. She drank out of a golden cup, above a hogshead at a draught. Her knives were twice as long as a scythe, set straight upon the handle. The spoons, forks, and other instruments, were all in the same proportion. I remember when Glumdalclitch carried me, out of curiosity, to see some of the tables at court, where ten or a dozen of those enormous knives and forks were lifted up together, I thought I had never till then beheld so terrible a sight. + +It is the custom, that every Wednesday (which, as I have observed, is their Sabbath) the king and queen, with the royal issue of both sexes, dine together in the apartment of his majesty, to whom I was now become a great favourite; and at these times, my little chair and table were placed at his left hand, before one of the salt- cellars. This prince took a pleasure in conversing with me, inquiring into the manners, religion, laws, government, and learning of Europe; wherein I gave him the best account I was able. His apprehension was so clear, and his judgment so exact, that he made very wise reflections and observations upon all I said. But I confess, that, after I had been a little too copious in talking of my own beloved country, of our trade and wars by sea and land, of our schisms in religion, and parties in the state; the prejudices of his education prevailed so far, that he could not forbear taking me up in his right hand, and stroking me gently with the other, after a hearty fit of laughing, asked me, "whether I was a whig or tory?" Then turning to his first minister, who waited behind him with a white staff, near as tall as the mainmast of the Royal Sovereign, he observed "how contemptible a thing was human grandeur, which could be mimicked by such diminutive insects as I: and yet," says he, "I dare engage these creatures have their titles and distinctions of honour; they contrive little nests and burrows, that they call houses and cities; they make a figure in dress and equipage; they love, they fight, they dispute, they cheat, they betray!" And thus he continued on, while my colour came and went several times, with indignation, to hear our noble country, the mistress of arts and arms, the scourge of France, the arbitress of Europe, the seat of virtue, piety, honour, and truth, the pride and envy of the world, so contemptuously treated. + +But as I was not in a condition to resent injuries, so upon mature thoughts I began to doubt whether I was injured or no. For, after having been accustomed several months to the sight and converse of this people, and observed every object upon which I cast mine eyes to be of proportionable magnitude, the horror I had at first conceived from their bulk and aspect was so far worn off, that if I had then beheld a company of English lords and ladies in their finery and birth-day clothes, acting their several parts in the most courtly manner of strutting, and bowing, and prating, to say the truth, I should have been strongly tempted to laugh as much at them as the king and his grandees did at me. Neither, indeed, could I forbear smiling at myself, when the queen used to place me upon her hand towards a looking-glass, by which both our persons appeared before me in full view together; and there could be nothing more ridiculous than the comparison; so that I really began to imagine myself dwindled many degrees below my usual size. + +Nothing angered and mortified me so much as the queen's dwarf; who being of the lowest stature that was ever in that country (for I verily think he was not full thirty feet high), became so insolent at seeing a creature so much beneath him, that he would always affect to swagger and look big as he passed by me in the queen's antechamber, while I was standing on some table talking with the lords or ladies of the court, and he seldom failed of a smart word or two upon my littleness; against which I could only revenge myself by calling him brother, challenging him to wrestle, and such repartees as are usually in the mouths of court pages. One day, at dinner, this malicious little cub was so nettled with something I had said to him, that, raising himself upon the frame of her majesty's chair, he took me up by the middle, as I was sitting down, not thinking any harm, and let me drop into a large silver bowl of cream, and then ran away as fast as he could. I fell over head and ears, and, if I had not been a good swimmer, it might have gone very hard with me; for Glumdalclitch in that instant happened to be at the other end of the room, and the queen was in such a fright, that she wanted presence of mind to assist me. But my little nurse ran to my relief, and took me out, after I had swallowed above a quart of cream. I was put to bed: however, I received no other damage than the loss of a suit of clothes, which was utterly spoiled. The dwarf was soundly whipt, and as a farther punishment, forced to drink up the bowl of cream into which he had thrown me: neither was he ever restored to favour; for soon after the queen bestowed him on a lady of high quality, so that I saw him no more, to my very great satisfaction; for I could not tell to what extremities such a malicious urchin might have carried his resentment. + +He had before served me a scurvy trick, which set the queen a-laughing, although at the same time she was heartily vexed, and would have immediately cashiered him, if I had not been so generous as to intercede. Her majesty had taken a marrow-bone upon her plate, and, after knocking out the marrow, placed the bone again in the dish erect, as it stood before; the dwarf, watching his opportunity, while Glumdalclitch was gone to the side-board, mounted the stool that she stood on to take care of me at meals, took me up in both hands, and squeezing my legs together, wedged them into the marrow bone above my waist, where I stuck for some time, and made a very ridiculous figure. I believe it was near a minute before any one knew what was become of me; for I thought it below me to cry out. But, as princes seldom get their meat hot, my legs were not scalded, only my stockings and breeches in a sad condition. The dwarf, at my entreaty, had no other punishment than a sound whipping. + +I was frequently rallied by the queen upon account of my fearfulness; and she used to ask me whether the people of my country were as great cowards as myself? The occasion was this: the kingdom is much pestered with flies in summer; and these odious insects, each of them as big as a Dunstable lark, hardly gave me any rest while I sat at dinner, with their continual humming and buzzing about mine ears. They would sometimes alight upon my victuals, and leave their loathsome excrement, or spawn behind, which to me was very visible, though not to the natives of that country, whose large optics were not so acute as mine, in viewing smaller objects. Sometimes they would fix upon my nose, or forehead, where they stung me to the quick, smelling very offensively; and I could easily trace that viscous matter, which, our naturalists tell us, enables those creatures to walk with their feet upwards upon a ceiling. I had much ado to defend myself against these detestable animals, and could not forbear starting when they came on my face. It was the common practice of the dwarf, to catch a number of these insects in his hand, as schoolboys do among us, and let them out suddenly under my nose, on purpose to frighten me, and divert the queen. My remedy was to cut them in pieces with my knife, as they flew in the air, wherein my dexterity was much admired. + +I remember, one morning, when Glumdalclitch had set me in a box upon a window, as she usually did in fair days to give me air (for I durst not venture to let the box be hung on a nail out of the window, as we do with cages in England), after I had lifted up one of my sashes, and sat down at my table to eat a piece of sweet cake for my breakfast, above twenty wasps, allured by the smell, came flying into the room, humming louder than the drones of as many bagpipes. Some of them seized my cake, and carried it piecemeal away; others flew about my head and face, confounding me with the noise, and putting me in the utmost terror of their stings. However, I had the courage to rise and draw my hanger, and attack them in the air. I dispatched four of them, but the rest got away, and I presently shut my window. These insects were as large as partridges: I took out their stings, found them an inch and a half long, and as sharp as needles. I carefully preserved them all; and having since shown them, with some other curiosities, in several parts of Europe, upon my return to England I gave three of them to Gresham College, and kept the fourth for myself. + +CHAPTER IV. + +[The country described. A proposal for correcting modern maps. The king's palace; and some account of the metropolis. The author's way of travelling. The chief temple described.] + +I now intend to give the reader a short description of this country, as far as I travelled in it, which was not above two thousand miles round Lorbrulgrud, the metropolis. For the queen, whom I always attended, never went farther when she accompanied the king in his progresses, and there staid till his majesty returned from viewing his frontiers. The whole extent of this prince's dominions reaches about six thousand miles in length, and from three to five in breadth: whence I cannot but conclude, that our geographers of Europe are in a great error, by supposing nothing but sea between Japan and California; for it was ever my opinion, that there must be a balance of earth to counterpoise the great continent of Tartary; and therefore they ought to correct their maps and charts, by joining this vast tract of land to the north- west parts of America, wherein I shall be ready to lend them my assistance. + +The kingdom is a peninsula, terminated to the north-east by a ridge of mountains thirty miles high, which are altogether impassable, by reason of the volcanoes upon the tops: neither do the most learned know what sort of mortals inhabit beyond those mountains, or whether they be inhabited at all. On the three other sides, it is bounded by the ocean. There is not one seaport in the whole kingdom: and those parts of the coasts into which the rivers issue, are so full of pointed rocks, and the sea generally so rough, that there is no venturing with the smallest of their boats; so that these people are wholly excluded from any commerce with the rest of the world. But the large rivers are full of vessels, and abound with excellent fish; for they seldom get any from the sea, because the sea fish are of the same size with those in Europe, and consequently not worth catching; whereby it is manifest, that nature, in the production of plants and animals of so extraordinary a bulk, is wholly confined to this continent, of which I leave the reasons to be determined by philosophers. However, now and then they take a whale that happens to be dashed against the rocks, which the common people feed on heartily. These whales I have known so large, that a man could hardly carry one upon his shoulders; and sometimes, for curiosity, they are brought in hampers to Lorbrulgrud; I saw one of them in a dish at the king's table, which passed for a rarity, but I did not observe he was fond of it; for I think, indeed, the bigness disgusted him, although I have seen one somewhat larger in Greenland. + +The country is well inhabited, for it contains fifty-one cities, near a hundred walled towns, and a great number of villages. To satisfy my curious reader, it may be sufficient to describe Lorbrulgrud. This city stands upon almost two equal parts, on each side the river that passes through. It contains above eighty thousand houses, and about six hundred thousand inhabitants. It is in length three glomglungs (which make about fifty-four English miles,) and two and a half in breadth; as I measured it myself in the royal map made by the king's order, which was laid on the ground on purpose for me, and extended a hundred feet: I paced the diameter and circumference several times barefoot, and, computing by the scale, measured it pretty exactly. + +The king's palace is no regular edifice, but a heap of buildings, about seven miles round: the chief rooms are generally two hundred and forty feet high, and broad and long in proportion. A coach was allowed to Glumdalclitch and me, wherein her governess frequently took her out to see the town, or go among the shops; and I was always of the party, carried in my box; although the girl, at my own desire, would often take me out, and hold me in her hand, that I might more conveniently view the houses and the people, as we passed along the streets. I reckoned our coach to be about a square of Westminster-hall, but not altogether so high: however, I cannot be very exact. One day the governess ordered our coachman to stop at several shops, where the beggars, watching their opportunity, crowded to the sides of the coach, and gave me the most horrible spectacle that ever a European eye beheld. There was a woman with a cancer in her breast, swelled to a monstrous size, full of holes, in two or three of which I could have easily crept, and covered my whole body. There was a fellow with a wen in his neck, larger than five wool-packs; and another, with a couple of wooden legs, each about twenty feet high. But the most hateful sight of all, was the lice crawling on their clothes. I could see distinctly the limbs of these vermin with my naked eye, much better than those of a European louse through a microscope, and their snouts with which they rooted like swine. They were the first I had ever beheld, and I should have been curious enough to dissect one of them, if I had had proper instruments, which I unluckily left behind me in the ship, although, indeed, the sight was so nauseous, that it perfectly turned my stomach. + +Besides the large box in which I was usually carried, the queen ordered a smaller one to be made for me, of about twelve feet square, and ten high, for the convenience of travelling; because the other was somewhat too large for Glumdalclitch's lap, and cumbersome in the coach; it was made by the same artist, whom I directed in the whole contrivance. This travelling-closet was an exact square, with a window in the middle of three of the squares, and each window was latticed with iron wire on the outside, to prevent accidents in long journeys. On the fourth side, which had no window, two strong staples were fixed, through which the person that carried me, when I had a mind to be on horseback, put a leathern belt, and buckled it about his waist. This was always the office of some grave trusty servant, in whom I could confide, whether I attended the king and queen in their progresses, or were disposed to see the gardens, or pay a visit to some great lady or minister of state in the court, when Glumdalclitch happened to be out of order; for I soon began to be known and esteemed among the greatest officers, I suppose more upon account of their majesties' favour, than any merit of my own. In journeys, when I was weary of the coach, a servant on horseback would buckle on my box, and place it upon a cushion before him; and there I had a full prospect of the country on three sides, from my three windows. I had, in this closet, a field-bed and a hammock, hung from the ceiling, two chairs and a table, neatly screwed to the floor, to prevent being tossed about by the agitation of the horse or the coach. And having been long used to sea-voyages, those motions, although sometimes very violent, did not much discompose me. + +Whenever I had a mind to see the town, it was always in my travelling-closet; which Glumdalclitch held in her lap in a kind of open sedan, after the fashion of the country, borne by four men, and attended by two others in the queen's livery. The people, who had often heard of me, were very curious to crowd about the sedan, and the girl was complaisant enough to make the bearers stop, and to take me in her hand, that I might be more conveniently seen. + +I was very desirous to see the chief temple, and particularly the tower belonging to it, which is reckoned the highest in the kingdom. Accordingly one day my nurse carried me thither, but I may truly say I came back disappointed; for the height is not above three thousand feet, reckoning from the ground to the highest pinnacle top; which, allowing for the difference between the size of those people and us in Europe, is no great matter for admiration, nor at all equal in proportion (if I rightly remember) to Salisbury steeple. But, not to detract from a nation, to which, during my life, I shall acknowledge myself extremely obliged, it must be allowed, that whatever this famous tower wants in height, is amply made up in beauty and strength: for the walls are near a hundred feet thick, built of hewn stone, whereof each is about forty feet square, and adorned on all sides with statues of gods and emperors, cut in marble, larger than the life, placed in their several niches. I measured a little finger which had fallen down from one of these statues, and lay unperceived among some rubbish, and found it exactly four feet and an inch in length. Glumdalclitch wrapped it up in her handkerchief, and carried it home in her pocket, to keep among other trinkets, of which the girl was very fond, as children at her age usually are. + +The king's kitchen is indeed a noble building, vaulted at top, and about six hundred feet high. The great oven is not so wide, by ten paces, as the cupola at St. Paul's: for I measured the latter on purpose, after my return. But if I should describe the kitchen grate, the prodigious pots and kettles, the joints of meat turning on the spits, with many other particulars, perhaps I should be hardly believed; at least a severe critic would be apt to think I enlarged a little, as travellers are often suspected to do. To avoid which censure I fear I have run too much into the other extreme; and that if this treatise should happen to be translated into the language of Brobdingnag (which is the general name of that kingdom,) and transmitted thither, the king and his people would have reason to complain that I had done them an injury, by a false and diminutive representation. + +His majesty seldom keeps above six hundred horses in his stables: they are generally from fifty-four to sixty feet high. But, when he goes abroad on solemn days, he is attended, for state, by a military guard of five hundred horse, which, indeed, I thought was the most splendid sight that could be ever beheld, till I saw part of his army in battalia, whereof I shall find another occasion to speak. + +CHAPTER V. + +[Several adventurers that happened to the author. The execution of a criminal. The author shows his skill in navigation.] + +I should have lived happy enough in that country, if my littleness had not exposed me to several ridiculous and troublesome accidents; some of which I shall venture to relate. Glumdalclitch often carried me into the gardens of the court in my smaller box, and would sometimes take me out of it, and hold me in her hand, or set me down to walk. I remember, before the dwarf left the queen, he followed us one day into those gardens, and my nurse having set me down, he and I being close together, near some dwarf apple trees, I must needs show my wit, by a silly allusion between him and the trees, which happens to hold in their language as it does in ours. Whereupon, the malicious rogue, watching his opportunity, when I was walking under one of them, shook it directly over my head, by which a dozen apples, each of them near as large as a Bristol barrel, came tumbling about my ears; one of them hit me on the back as I chanced to stoop, and knocked me down flat on my face; but I received no other hurt, and the dwarf was pardoned at my desire, because I had given the provocation. + +Another day, Glumdalclitch left me on a smooth grass-plot to divert myself, while she walked at some distance with her governess. In the meantime, there suddenly fell such a violent shower of hail, that I was immediately by the force of it, struck to the ground: and when I was down, the hailstones gave me such cruel bangs all over the body, as if I had been pelted with tennis-balls; however, I made a shift to creep on all fours, and shelter myself, by lying flat on my face, on the lee-side of a border of lemon-thyme, but so bruised from head to foot, that I could not go abroad in ten days. Neither is this at all to be wondered at, because nature, in that country, observing the same proportion through all her operations, a hailstone is near eighteen hundred times as large as one in Europe; which I can assert upon experience, having been so curious as to weigh and measure them. + +But a more dangerous accident happened to me in the same garden, when my little nurse, believing she had put me in a secure place (which I often entreated her to do, that I might enjoy my own thoughts,) and having left my box at home, to avoid the trouble of carrying it, went to another part of the garden with her governess and some ladies of her acquaintance. While she was absent, and out of hearing, a small white spaniel that belonged to one of the chief gardeners, having got by accident into the garden, happened to range near the place where I lay: the dog, following the scent, came directly up, and taking me in his mouth, ran straight to his master wagging his tail, and set me gently on the ground. By good fortune he had been so well taught, that I was carried between his teeth without the least hurt, or even tearing my clothes. But the poor gardener, who knew me well, and had a great kindness for me, was in a terrible fright: he gently took me up in both his hands, and asked me how I did? but I was so amazed and out of breath, that I could not speak a word. In a few minutes I came to myself, and he carried me safe to my little nurse, who, by this time, had returned to the place where she left me, and was in cruel agonies when I did not appear, nor answer when she called. She severely reprimanded the gardener on account of his dog. But the thing was hushed up, and never known at court, for the girl was afraid of the queen's anger; and truly, as to myself, I thought it would not be for my reputation, that such a story should go about. + +This accident absolutely determined Glumdalclitch never to trust me abroad for the future out of her sight. I had been long afraid of this resolution, and therefore concealed from her some little unlucky adventures, that happened in those times when I was left by myself. Once a kite, hovering over the garden, made a stoop at me, and if I had not resolutely drawn my hanger, and run under a thick espalier, he would have certainly carried me away in his talons. Another time, walking to the top of a fresh mole-hill, I fell to my neck in the hole, through which that animal had cast up the earth, and coined some lie, not worth remembering, to excuse myself for spoiling my clothes. I likewise broke my right shin against the shell of a snail, which I happened to stumble over, as I was walking alone and thinking on poor England. + +I cannot tell whether I were more pleased or mortified to observe, in those solitary walks, that the smaller birds did not appear to be at all afraid of me, but would hop about within a yard's distance, looking for worms and other food, with as much indifference and security as if no creature at all were near them. I remember, a thrush had the confidence to snatch out of my hand, with his bill, a of cake that Glumdalclitch had just given me for my breakfast. When I attempted to catch any of these birds, they would boldly turn against me, endeavouring to peck my fingers, which I durst not venture within their reach; and then they would hop back unconcerned, to hunt for worms or snails, as they did before. But one day, I took a thick cudgel, and threw it with all my strength so luckily, at a linnet, that I knocked him down, and seizing him by the neck with both my hands, ran with him in triumph to my nurse. However, the bird, who had only been stunned, recovering himself gave me so many boxes with his wings, on both sides of my head and body, though I held him at arm's-length, and was out of the reach of his claws, that I was twenty times thinking to let him go. But I was soon relieved by one of our servants, who wrung off the bird's neck, and I had him next day for dinner, by the queen's command. This linnet, as near as I can remember, seemed to be somewhat larger than an English swan. + +The maids of honour often invited Glumdalclitch to their apartments, and desired she would bring me along with her, on purpose to have the pleasure of seeing and touching me. They would often strip me naked from top to toe, and lay me at full length in their bosoms; wherewith I was much disgusted because, to say the truth, a very offensive smell came from their skins; which I do not mention, or intend, to the disadvantage of those excellent ladies, for whom I have all manner of respect; but I conceive that my sense was more acute in proportion to my littleness, and that those illustrious persons were no more disagreeable to their lovers, or to each other, than people of the same quality are with us in England. And, after all, I found their natural smell was much more supportable, than when they used perfumes, under which I immediately swooned away. I cannot forget, that an intimate friend of mine in Lilliput, took the freedom in a warm day, when I had used a good deal of exercise, to complain of a strong smell about me, although I am as little faulty that way, as most of my sex: but I suppose his faculty of smelling was as nice with regard to me, as mine was to that of this people. Upon this point, I cannot forbear doing justice to the queen my mistress, and Glumdalclitch my nurse, whose persons were as sweet as those of any lady in England. + +That which gave me most uneasiness among these maids of honour (when my nurse carried me to visit then) was, to see them use me without any manner of ceremony, like a creature who had no sort of consequence: for they would strip themselves to the skin, and put on their smocks in my presence, while I was placed on their toilet, directly before their naked bodies, which I am sure to me was very far from being a tempting sight, or from giving me any other emotions than those of horror and disgust: their skins appeared so coarse and uneven, so variously coloured, when I saw them near, with a mole here and there as broad as a trencher, and hairs hanging from it thicker than packthreads, to say nothing farther concerning the rest of their persons. Neither did they at all scruple, while I was by, to discharge what they had drank, to the quantity of at least two hogsheads, in a vessel that held above three tuns. The handsomest among these maids of honour, a pleasant, frolicsome girl of sixteen, would sometimes set me astride upon one of her nipples, with many other tricks, wherein the reader will excuse me for not being over particular. But I was so much displeased, that I entreated Glumdalclitch to contrive some excuse for not seeing that young lady any more. + +One day, a young gentleman, who was nephew to my nurse's governess, came and pressed them both to see an execution. It was of a man, who had murdered one of that gentleman's intimate acquaintance. Glumdalclitch was prevailed on to be of the company, very much against her inclination, for she was naturally tender-hearted: and, as for myself, although I abhorred such kind of spectacles, yet my curiosity tempted me to see something that I thought must be extraordinary. The malefactor was fixed in a chair upon a scaffold erected for that purpose, and his head cut off at one blow, with a sword of about forty feet long. The veins and arteries spouted up such a prodigious quantity of blood, and so high in the air, that the great jet d'eau at Versailles was not equal to it for the time it lasted: and the head, when it fell on the scaffold floor, gave such a bounce as made me start, although I was at least half an English mile distant. + +The queen, who often used to hear me talk of my sea-voyages, and took all occasions to divert me when I was melancholy, asked me whether I understood how to handle a sail or an oar, and whether a little exercise of rowing might not be convenient for my health? I answered, that I understood both very well: for although my proper employment had been to be surgeon or doctor to the ship, yet often, upon a pinch, I was forced to work like a common mariner. But I could not see how this could be done in their country, where the smallest wherry was equal to a first-rate man of war among us; and such a boat as I could manage would never live in any of their rivers. Her majesty said, if I would contrive a boat, her own joiner should make it, and she would provide a place for me to sail in. The fellow was an ingenious workman, and by my instructions, in ten days, finished a pleasure-boat with all its tackling, able conveniently to hold eight Europeans. When it was finished, the queen was so delighted, that she ran with it in her lap to the king, who ordered it to be put into a cistern full of water, with me in it, by way of trial, where I could not manage my two sculls, or little oars, for want of room. But the queen had before contrived another project. She ordered the joiner to make a wooden trough of three hundred feet long, fifty broad, and eight deep; which, being well pitched, to prevent leaking, was placed on the floor, along the wall, in an outer room of the palace. It had a cock near the bottom to let out the water, when it began to grow stale; and two servants could easily fill it in half an hour. Here I often used to row for my own diversion, as well as that of the queen and her ladies, who thought themselves well entertained with my skill and agility. Sometimes I would put up my sail, and then my business was only to steer, while the ladies gave me a gale with their fans; and, when they were weary, some of their pages would blow my sail forward with their breath, while I showed my art by steering starboard or larboard as I pleased. When I had done, Glumdalclitch always carried back my boat into her closet, and hung it on a nail to dry. + +In this exercise I once met an accident, which had like to have cost me my life; for, one of the pages having put my boat into the trough, the governess who attended Glumdalclitch very officiously lifted me up, to place me in the boat: but I happened to slip through her fingers, and should infallibly have fallen down forty feet upon the floor, if, by the luckiest chance in the world, I had not been stopped by a corking-pin that stuck in the good gentlewoman's stomacher; the head of the pin passing between my shirt and the waistband of my breeches, and thus I was held by the middle in the air, till Glumdalclitch ran to my relief. + +Another time, one of the servants, whose office it was to fill my trough every third day with fresh water, was so careless as to let a huge frog (not perceiving it) slip out of his pail. The frog lay concealed till I was put into my boat, but then, seeing a resting- place, climbed up, and made it lean so much on one side, that I was forced to balance it with all my weight on the other, to prevent overturning. When the frog was got in, it hopped at once half the length of the boat, and then over my head, backward and forward, daubing my face and clothes with its odious slime. The largeness of its features made it appear the most deformed animal that can be conceived. However, I desired Glumdalclitch to let me deal with it alone. I banged it a good while with one of my sculls, and at last forced it to leap out of the boat. + +But the greatest danger I ever underwent in that kingdom, was from a monkey, who belonged to one of the clerks of the kitchen. Glumdalclitch had locked me up in her closet, while she went somewhere upon business, or a visit. The weather being very warm, the closet-window was left open, as well as the windows and the door of my bigger box, in which I usually lived, because of its largeness and conveniency. As I sat quietly meditating at my table, I heard something bounce in at the closet-window, and skip about from one side to the other: whereat, although I was much alarmed, yet I ventured to look out, but not stirring from my seat; and then I saw this frolicsome animal frisking and leaping up and down, till at last he came to my box, which he seemed to view with great pleasure and curiosity, peeping in at the door and every window. I retreated to the farther corner of my room; or box; but the monkey looking in at every side, put me in such a fright, that I wanted presence of mind to conceal myself under the bed, as I might easily have done. After some time spent in peeping, grinning, and chattering, he at last espied me; and reaching one of his paws in at the door, as a cat does when she plays with a mouse, although I often shifted place to avoid him, he at length seized the lappet of my coat (which being made of that country silk, was very thick and strong), and dragged me out. He took me up in his right fore-foot and held me as a nurse does a child she is going to suckle, just as I have seen the same sort of creature do with a kitten in Europe; and when I offered to struggle he squeezed me so hard, that I thought it more prudent to submit. I have good reason to believe, that he took me for a young one of his own species, by his often stroking my face very gently with his other paw. In these diversions he was interrupted by a noise at the closet door, as if somebody were opening it: whereupon he suddenly leaped up to the window at which he had come in, and thence upon the leads and gutters, walking upon three legs, and holding me in the fourth, till he clambered up to a roof that was next to ours. I heard Glumdalclitch give a shriek at the moment he was carrying me out. The poor girl was almost distracted: that quarter of the palace was all in an uproar; the servants ran for ladders; the monkey was seen by hundreds in the court, sitting upon the ridge of a building, holding me like a baby in one of his forepaws, and feeding me with the other, by cramming into my mouth some victuals he had squeezed out of the bag on one side of his chaps, and patting me when I would not eat; whereat many of the rabble below could not forbear laughing; neither do I think they justly ought to be blamed, for, without question, the sight was ridiculous enough to every body but myself. Some of the people threw up stones, hoping to drive the monkey down; but this was strictly forbidden, or else, very probably, my brains had been dashed out. + +The ladders were now applied, and mounted by several men; which the monkey observing, and finding himself almost encompassed, not being able to make speed enough with his three legs, let me drop on a ridge tile, and made his escape. Here I sat for some time, five hundred yards from the ground, expecting every moment to be blown down by the wind, or to fall by my own giddiness, and come tumbling over and over from the ridge to the eaves; but an honest lad, one of my nurse's footmen, climbed up, and putting me into his breeches pocket, brought me down safe. + +I was almost choked with the filthy stuff the monkey had crammed down my throat: but my dear little nurse picked it out of my mouth with a small needle, and then I fell a-vomiting, which gave me great relief. Yet I was so weak and bruised in the sides with the squeezes given me by this odious animal, that I was forced to keep my bed a fortnight. The king, queen, and all the court, sent every day to inquire after my health; and her majesty made me several visits during my sickness. The monkey was killed, and an order made, that no such animal should be kept about the palace. + +When I attended the king after my recovery, to return him thanks for his favours, he was pleased to rally me a good deal upon this adventure. He asked me, "what my thoughts and speculations were, while I lay in the monkey's paw; how I liked the victuals he gave me; his manner of feeding; and whether the fresh air on the roof had sharpened my stomach." He desired to know, "what I would have done upon such an occasion in my own country." I told his majesty, "that in Europe we had no monkeys, except such as were brought for curiosity from other places, and so small, that I could deal with a dozen of them together, if they presumed to attack me. And as for that monstrous animal with whom I was so lately engaged (it was indeed as large as an elephant), if my fears had suffered me to think so far as to make use of my hanger," (looking fiercely, and clapping my hand on the hilt, as I spoke) "when he poked his paw into my chamber, perhaps I should have given him such a wound, as would have made him glad to withdraw it with more haste than he put it in." This I delivered in a firm tone, like a person who was jealous lest his courage should be called in question. However, my speech produced nothing else beside a laud laughter, which all the respect due to his majesty from those about him could not make them contain. This made me reflect, how vain an attempt it is for a man to endeavour to do himself honour among those who are out of all degree of equality or comparison with him. And yet I have seen the moral of my own behaviour very frequent in England since my return; where a little contemptible varlet, without the least title to birth, person, wit, or common sense, shall presume to look with importance, and put himself upon a foot with the greatest persons of the kingdom. + +I was every day furnishing the court with some ridiculous story: and Glumdalclitch, although she loved me to excess, yet was arch enough to inform the queen, whenever I committed any folly that she thought would be diverting to her majesty. The girl, who had been out of order, was carried by her governess to take the air about an hour's distance, or thirty miles from town. They alighted out of the coach near a small foot-path in a field, and Glumdalclitch setting down my travelling box, I went out of it to walk. There was a cow-dung in the path, and I must need try my activity by attempting to leap over it. I took a run, but unfortunately jumped short, and found myself just in the middle up to my knees. I waded through with some difficulty, and one of the footmen wiped me as clean as he could with his handkerchief, for I was filthily bemired; and my nurse confined me to my box, till we returned home; where the queen was soon informed of what had passed, and the footmen spread it about the court: so that all the mirth for some days was at my expense. + +CHAPTER VI. + +[Several contrivances of the author to please the king and queen. He shows his skill in music. The king inquires into the state of England, which the author relates to him. The king's observations thereon.] + +I used to attend the king's levee once or twice a week, and had often seen him under the barber's hand, which indeed was at first very terrible to behold; for the razor was almost twice as long as an ordinary scythe. His majesty, according to the custom of the country, was only shaved twice a-week. I once prevailed on the barber to give me some of the suds or lather, out of which I picked forty or fifty of the strongest stumps of hair. I then took a piece of fine wood, and cut it like the back of a comb, making several holes in it at equal distances with as small a needle as I could get from Glumdalclitch. I fixed in the stumps so artificially, scraping and sloping them with my knife toward the points, that I made a very tolerable comb; which was a seasonable supply, my own being so much broken in the teeth, that it was almost useless: neither did I know any artist in that country so nice and exact, as would undertake to make me another. + +And this puts me in mind of an amusement, wherein I spent many of my leisure hours. I desired the queen's woman to save for me the combings of her majesty's hair, whereof in time I got a good quantity; and consulting with my friend the cabinet-maker, who had received general orders to do little jobs for me, I directed him to make two chair-frames, no larger than those I had in my box, and to bore little holes with a fine awl, round those parts where I designed the backs and seats; through these holes I wove the strongest hairs I could pick out, just after the manner of cane chairs in England. When they were finished, I made a present of them to her majesty; who kept them in her cabinet, and used to show them for curiosities, as indeed they were the wonder of every one that beheld them. The queen would have me sit upon one of these chairs, but I absolutely refused to obey her, protesting I would rather die than place a dishonourable part of my body on those precious hairs, that once adorned her majesty's head. Of these hairs (as I had always a mechanical genius) I likewise made a neat little purse, about five feet long, with her majesty's name deciphered in gold letters, which I gave to Glumdalclitch, by the queen's consent. To say the truth, it was more for show than use, being not of strength to bear the weight of the larger coins, and therefore she kept nothing in it but some little toys that girls are fond of. + +The king, who delighted in music, had frequent concerts at court, to which I was sometimes carried, and set in my box on a table to hear them: but the noise was so great that I could hardly distinguish the tunes. I am confident that all the drums and trumpets of a royal army, beating and sounding together just at your ears, could not equal it. My practice was to have my box removed from the place where the performers sat, as far as I could, then to shut the doors and windows of it, and draw the window curtains; after which I found their music not disagreeable. + +I had learned in my youth to play a little upon the spinet. Glumdalclitch kept one in her chamber, and a master attended twice a-week to teach her: I called it a spinet, because it somewhat resembled that instrument, and was played upon in the same manner. A fancy came into my head, that I would entertain the king and queen with an English tune upon this instrument. But this appeared extremely difficult: for the spinet was near sixty feet long, each key being almost a foot wide, so that with my arms extended I could not reach to above five keys, and to press them down required a good smart stroke with my fist, which would be too great a labour, and to no purpose. The method I contrived was this: I prepared two round sticks, about the bigness of common cudgels; they were thicker at one end than the other, and I covered the thicker ends with pieces of a mouse's skin, that by rapping on them I might neither damage the tops of the keys nor interrupt the sound. Before the spinet a bench was placed, about four feet below the keys, and I was put upon the bench. I ran sideling upon it, that way and this, as fast as I could, banging the proper keys with my two sticks, and made a shift to play a jig, to the great satisfaction of both their majesties; but it was the most violent exercise I ever underwent; and yet I could not strike above sixteen keys, nor consequently play the bass and treble together, as other artists do; which was a great disadvantage to my performance. + +The king, who, as I before observed, was a prince of excellent understanding, would frequently order that I should be brought in my box, and set upon the table in his closet: he would then command me to bring one of my chairs out of the box, and sit down within three yards distance upon the top of the cabinet, which brought me almost to a level with his face. In this manner I had several conversations with him. I one day took the freedom to tell his majesty, "that the contempt he discovered towards Europe, and the rest of the world, did not seem answerable to those excellent qualities of mind that he was master of; that reason did not extend itself with the bulk of the body; on the contrary, we observed in our country, that the tallest persons were usually the least provided with it; that among other animals, bees and ants had the reputation of more industry, art, and sagacity, than many of the larger kinds; and that, as inconsiderable as he took me to be, I hoped I might live to do his majesty some signal service." The king heard me with attention, and began to conceive a much better opinion of me than he had ever before. He desired "I would give him as exact an account of the government of England as I possibly could; because, as fond as princes commonly are of their own customs (for so he conjectured of other monarchs, by my former discourses), he should be glad to hear of any thing that might deserve imitation." + +Imagine with thyself, courteous reader, how often I then wished for the tongue of Demosthenes or Cicero, that might have enabled me to celebrate the praise of my own dear native country in a style equal to its merits and felicity. + +I began my discourse by informing his majesty, that our dominions consisted of two islands, which composed three mighty kingdoms, under one sovereign, beside our plantations in America. I dwelt long upon the fertility of our soil, and the temperature of our climate. I then spoke at large upon the constitution of an English parliament; partly made up of an illustrious body called the House of Peers; persons of the noblest blood, and of the most ancient and ample patrimonies. I described that extraordinary care always taken of their education in arts and arms, to qualify them for being counsellors both to the king and kingdom; to have a share in the legislature; to be members of the highest court of judicature, whence there can be no appeal; and to be champions always ready for the defence of their prince and country, by their valour, conduct, and fidelity. That these were the ornament and bulwark of the kingdom, worthy followers of their most renowned ancestors, whose honour had been the reward of their virtue, from which their posterity were never once known to degenerate. To these were joined several holy persons, as part of that assembly, under the title of bishops, whose peculiar business is to take care of religion, and of those who instruct the people therein. These were searched and sought out through the whole nation, by the prince and his wisest counsellors, among such of the priesthood as were most deservedly distinguished by the sanctity of their lives, and the depth of their erudition; who were indeed the spiritual fathers of the clergy and the people. + +That the other part of the parliament consisted of an assembly called the House of Commons, who were all principal gentlemen, freely picked and culled out by the people themselves, for their great abilities and love of their country, to represent the wisdom of the whole nation. And that these two bodies made up the most august assembly in Europe; to whom, in conjunction with the prince, the whole legislature is committed. + +I then descended to the courts of justice; over which the judges, those venerable sages and interpreters of the law, presided, for determining the disputed rights and properties of men, as well as for the punishment of vice and protection of innocence. I mentioned the prudent management of our treasury; the valour and achievements of our forces, by sea and land. I computed the number of our people, by reckoning how many millions there might be of each religious sect, or political party among us. I did not omit even our sports and pastimes, or any other particular which I thought might redound to the honour of my country. And I finished all with a brief historical account of affairs and events in England for about a hundred years past. + +This conversation was not ended under five audiences, each of several hours; and the king heard the whole with great attention, frequently taking notes of what I spoke, as well as memorandums of what questions he intended to ask me. + +When I had put an end to these long discources, his majesty, in a sixth audience, consulting his notes, proposed many doubts, queries, and objections, upon every article. He asked, "What methods were used to cultivate the minds and bodies of our young nobility, and in what kind of business they commonly spent the first and teachable parts of their lives? What course was taken to supply that assembly, when any noble family became extinct? What qualifications were necessary in those who are to be created new lords: whether the humour of the prince, a sum of money to a court lady, or a design of strengthening a party opposite to the public interest, ever happened to be the motive in those advancements? What share of knowledge these lords had in the laws of their country, and how they came by it, so as to enable them to decide the properties of their fellow-subjects in the last resort? Whether they were always so free from avarice, partialities, or want, that a bribe, or some other sinister view, could have no place among them? Whether those holy lords I spoke of were always promoted to that rank upon account of their knowledge in religious matters, and the sanctity of their lives; had never been compliers with the times, while they were common priests; or slavish prostitute chaplains to some nobleman, whose opinions they continued servilely to follow, after they were admitted into that assembly?" + +He then desired to know, "What arts were practised in electing those whom I called commoners: whether a stranger, with a strong purse, might not influence the vulgar voters to choose him before their own landlord, or the most considerable gentleman in the neighbourhood? How it came to pass, that people were so violently bent upon getting into this assembly, which I allowed to be a great trouble and expense, often to the ruin of their families, without any salary or pension? because this appeared such an exalted strain of virtue and public spirit, that his majesty seemed to doubt it might possibly not be always sincere." And he desired to know, "Whether such zealous gentlemen could have any views of refunding themselves for the charges and trouble they were at by sacrificing the public good to the designs of a weak and vicious prince, in conjunction with a corrupted ministry?" He multiplied his questions, and sifted me thoroughly upon every part of this head, proposing numberless inquiries and objections, which I think it not prudent or convenient to repeat. + +Upon what I said in relation to our courts of justice, his majesty desired to be satisfied in several points: and this I was the better able to do, having been formerly almost ruined by a long suit in chancery, which was decreed for me with costs. He asked, "What time was usually spent in determining between right and wrong, and what degree of expense? Whether advocates and orators had liberty to plead in causes manifestly known to be unjust, vexatious, or oppressive? Whether party, in religion or politics, were observed to be of any weight in the scale of justice? Whether those pleading orators were persons educated in the general knowledge of equity, or only in provincial, national, and other local customs? Whether they or their judges had any part in penning those laws, which they assumed the liberty of interpreting, and glossing upon at their pleasure? Whether they had ever, at different times, pleaded for and against the same cause, and cited precedents to prove contrary opinions? Whether they were a rich or a poor corporation? Whether they received any pecuniary reward for pleading, or delivering their opinions? And particularly, whether they were ever admitted as members in the lower senate?" + +He fell next upon the management of our treasury; and said, "he thought my memory had failed me, because I computed our taxes at about five or six millions a-year, and when I came to mention the issues, he found they sometimes amounted to more than double; for the notes he had taken were very particular in this point, because he hoped, as he told me, that the knowledge of our conduct might be useful to him, and he could not be deceived in his calculations. But, if what I told him were true, he was still at a loss how a kingdom could run out of its estate, like a private person." He asked me, "who were our creditors; and where we found money to pay them?" He wondered to hear me talk of such chargeable and expensive wars; "that certainly we must be a quarrelsome people, or live among very bad neighbours, and that our generals must needs be richer than our kings." He asked, what business we had out of our own islands, unless upon the score of trade, or treaty, or to defend the coasts with our fleet?" Above all, he was amazed to hear me talk of a mercenary standing army, in the midst of peace, and among a free people. He said, "if we were governed by our own consent, in the persons of our representatives, he could not imagine of whom we were afraid, or against whom we were to fight; and would hear my opinion, whether a private man's house might not be better defended by himself, his children, and family, than by half-a-dozen rascals, picked up at a venture in the streets for small wages, who might get a hundred times more by cutting their throats?" + +He laughed at my "odd kind of arithmetic," as he was pleased to call it, "in reckoning the numbers of our people, by a computation drawn from the several sects among us, in religion and politics." He said, "he knew no reason why those, who entertain opinions prejudicial to the public, should be obliged to change, or should not be obliged to conceal them. And as it was tyranny in any government to require the first, so it was weakness not to enforce the second: for a man may be allowed to keep poisons in his closet, but not to vend them about for cordials." + +He observed, "that among the diversions of our nobility and gentry, I had mentioned gaming: he desired to know at what age this entertainment was usually taken up, and when it was laid down; how much of their time it employed; whether it ever went so high as to affect their fortunes; whether mean, vicious people, by their dexterity in that art, might not arrive at great riches, and sometimes keep our very nobles in dependence, as well as habituate them to vile companions, wholly take them from the improvement of their minds, and force them, by the losses they received, to learn and practise that infamous dexterity upon others?" + +He was perfectly astonished with the historical account gave him of our affairs during the last century; protesting "it was only a heap of conspiracies, rebellions, murders, massacres, revolutions, banishments, the very worst effects that avarice, faction, hypocrisy, perfidiousness, cruelty, rage, madness, hatred, envy, lust, malice, and ambition, could produce." + +His majesty, in another audience, was at the pains to recapitulate the sum of all I had spoken; compared the questions he made with the answers I had given; then taking me into his hands, and stroking me gently, delivered himself in these words, which I shall never forget, nor the manner he spoke them in: "My little friend Grildrig, you have made a most admirable panegyric upon your country; you have clearly proved, that ignorance, idleness, and vice, are the proper ingredients for qualifying a legislator; that laws are best explained, interpreted, and applied, by those whose interest and abilities lie in perverting, confounding, and eluding them. I observe among you some lines of an institution, which, in its original, might have been tolerable, but these half erased, and the rest wholly blurred and blotted by corruptions. It does not appear, from all you have said, how any one perfection is required toward the procurement of any one station among you; much less, that men are ennobled on account of their virtue; that priests are advanced for their piety or learning; soldiers, for their conduct or valour; judges, for their integrity; senators, for the love of their country; or counsellors for their wisdom. As for yourself," continued the king, "who have spent the greatest part of your life in travelling, I am well disposed to hope you may hitherto have escaped many vices of your country. But by what I have gathered from your own relation, and the answers I have with much pains wrung and extorted from you, I cannot but conclude the bulk of your natives to be the most pernicious race of little odious vermin that nature ever suffered to crawl upon the surface of the earth." + +CHAPTER VII. + +[The author's love of his country. He makes a proposal of much advantage to the king, which is rejected. The king's great ignorance in politics. The learning of that country very imperfect and confined. The laws, and military affairs, and parties in the state.] + +Nothing but an extreme love of truth could have hindered me from concealing this part of my story. It was in vain to discover my resentments, which were always turned into ridicule; and I was forced to rest with patience, while my noble and beloved country was so injuriously treated. I am as heartily sorry as any of my readers can possibly be, that such an occasion was given: but this prince happened to be so curious and inquisitive upon every particular, that it could not consist either with gratitude or good manners, to refuse giving him what satisfaction I was able. Yet thus much I may be allowed to say in my own vindication, that I artfully eluded many of his questions, and gave to every point a more favourable turn, by many degrees, than the strictness of truth would allow. For I have always borne that laudable partiality to my own country, which Dionysius Halicarnassensis, with so much justice, recommends to an historian: I would hide the frailties and deformities of my political mother, and place her virtues and beauties in the most advantageous light. This was my sincere endeavour in those many discourses I had with that monarch, although it unfortunately failed of success. + +But great allowances should be given to a king, who lives wholly secluded from the rest of the world, and must therefore be altogether unacquainted with the manners and customs that most prevail in other nations: the want of which knowledge will ever produce many prejudices, and a certain narrowness of thinking, from which we, and the politer countries of Europe, are wholly exempted. And it would be hard indeed, if so remote a prince's notions of virtue and vice were to be offered as a standard for all mankind. + +To confirm what I have now said, and further to show the miserable effects of a confined education, I shall here insert a passage, which will hardly obtain belief. In hopes to ingratiate myself further into his majesty's favour, I told him of "an invention, discovered between three and four hundred years ago, to make a certain powder, into a heap of which, the smallest spark of fire falling, would kindle the whole in a moment, although it were as big as a mountain, and make it all fly up in the air together, with a noise and agitation greater than thunder. That a proper quantity of this powder rammed into a hollow tube of brass or iron, according to its bigness, would drive a ball of iron or lead, with such violence and speed, as nothing was able to sustain its force. That the largest balls thus discharged, would not only destroy whole ranks of an army at once, but batter the strongest walls to the ground, sink down ships, with a thousand men in each, to the bottom of the sea, and when linked together by a chain, would cut through masts and rigging, divide hundreds of bodies in the middle, and lay all waste before them. That we often put this powder into large hollow balls of iron, and discharged them by an engine into some city we were besieging, which would rip up the pavements, tear the houses to pieces, burst and throw splinters on every side, dashing out the brains of all who came near. That I knew the ingredients very well, which were cheap and common; I understood the manner of compounding them, and could direct his workmen how to make those tubes, of a size proportionable to all other things in his majesty's kingdom, and the largest need not be above a hundred feet long; twenty or thirty of which tubes, charged with the proper quantity of powder and balls, would batter down the walls of the strongest town in his dominions in a few hours, or destroy the whole metropolis, if ever it should pretend to dispute his absolute commands." This I humbly offered to his majesty, as a small tribute of acknowledgment, in turn for so many marks that I had received, of his royal favour and protection. + +The king was struck with horror at the description I had given of those terrible engines, and the proposal I had made. "He was amazed, how so impotent and grovelling an insect as I" (these were his expressions) "could entertain such inhuman ideas, and in so familiar a manner, as to appear wholly unmoved at all the scenes of blood and desolation which I had painted as the common effects of those destructive machines; whereof," he said, "some evil genius, enemy to mankind, must have been the first contriver. As for himself, he protested, that although few things delighted him so much as new discoveries in art or in nature, yet he would rather lose half his kingdom, than be privy to such a secret; which he commanded me, as I valued any life, never to mention any more." + +A strange effect of narrow principles and views! that a prince possessed of every quality which procures veneration, love, and esteem; of strong parts, great wisdom, and profound learning, endowed with admirable talents, and almost adored by his subjects, should, from a nice, unnecessary scruple, whereof in Europe we can have no conception, let slip an opportunity put into his hands that would have made him absolute master of the lives, the liberties, and the fortunes of his people! Neither do I say this, with the least intention to detract from the many virtues of that excellent king, whose character, I am sensible, will, on this account, be very much lessened in the opinion of an English reader: but I take this defect among them to have risen from their ignorance, by not having hitherto reduced politics into a science, as the more acute wits of Europe have done. For, I remember very well, in a discourse one day with the king, when I happened to say, "there were several thousand books among us written upon the art of government," it gave him (directly contrary to my intention) a very mean opinion of our understandings. He professed both to abominate and despise all mystery, refinement, and intrigue, either in a prince or a minister. He could not tell what I meant by secrets of state, where an enemy, or some rival nation, were not in the case. He confined the knowledge of governing within very narrow bounds, to common sense and reason, to justice and lenity, to the speedy determination of civil and criminal causes; with some other obvious topics, which are not worth considering. And he gave it for his opinion, "that whoever could make two ears of corn, or two blades of grass, to grow upon a spot of ground where only one grew before, would deserve better of mankind, and do more essential service to his country, than the whole race of politicians put together." + +The learning of this people is very defective, consisting only in morality, history, poetry, and mathematics, wherein they must be allowed to excel. But the last of these is wholly applied to what may be useful in life, to the improvement of agriculture, and all mechanical arts; so that among us, it would be little esteemed. And as to ideas, entities, abstractions, and transcendentals, I could never drive the least conception into their heads. + +No law in that country must exceed in words the number of letters in their alphabet, which consists only of two and twenty. But indeed few of them extend even to that length. They are expressed in the most plain and simple terms, wherein those people are not mercurial enough to discover above one interpretation: and to write a comment upon any law, is a capital crime. As to the decision of civil causes, or proceedings against criminals, their precedents are so few, that they have little reason to boast of any extraordinary skill in either. + +They have had the art of printing, as well as the Chinese, time out of mind: but their libraries are not very large; for that of the king, which is reckoned the largest, does not amount to above a thousand volumes, placed in a gallery of twelve hundred feet long, whence I had liberty to borrow what books I pleased. The queen's joiner had contrived in one of Glumdalclitch's rooms, a kind of wooden machine five-and-twenty feet high, formed like a standing ladder; the steps were each fifty feet long. It was indeed a moveable pair of stairs, the lowest end placed at ten feet distance from the wall of the chamber. The book I had a mind to read, was put up leaning against the wall: I first mounted to the upper step of the ladder, and turning my face towards the book, began at the top of the page, and so walking to the right and left about eight or ten paces, according to the length of the lines, till I had gotten a little below the level of mine eyes, and then descending gradually till I came to the bottom: after which I mounted again, and began the other page in the same manner, and so turned over the leaf, which I could easily do with both my hands, for it was as thick and stiff as a pasteboard, and in the largest folios not above eighteen or twenty feet long. + +Their style is clear, masculine, and smooth, but not florid; for they avoid nothing more than multiplying unnecessary words, or using various expressions. I have perused many of their books, especially those in history and morality. Among the rest, I was much diverted with a little old treatise, which always lay in Glumdalclitch's bed chamber, and belonged to her governess, a grave elderly gentlewoman, who dealt in writings of morality and devotion. The book treats of the weakness of human kind, and is in little esteem, except among the women and the vulgar. However, I was curious to see what an author of that country could say upon such a subject. This writer went through all the usual topics of European moralists, showing "how diminutive, contemptible, and helpless an animal was man in his own nature; how unable to defend himself from inclemencies of the air, or the fury of wild beasts: how much he was excelled by one creature in strength, by another in speed, by a third in foresight, by a fourth in industry." He added, "that nature was degenerated in these latter declining ages of the world, and could now produce only small abortive births, in comparison of those in ancient times." He said "it was very reasonable to think, not only that the species of men were originally much larger, but also that there must have been giants in former ages; which, as it is asserted by history and tradition, so it has been confirmed by huge bones and skulls, casually dug up in several parts of the kingdom, far exceeding the common dwindled race of men in our days." He argued, "that the very laws of nature absolutely required we should have been made, in the beginning of a size more large and robust; not so liable to destruction from every little accident, of a tile falling from a house, or a stone cast from the hand of a boy, or being drowned in a little brook." From this way of reasoning, the author drew several moral applications, useful in the conduct of life, but needless here to repeat. For my own part, I could not avoid reflecting how universally this talent was spread, of drawing lectures in morality, or indeed rather matter of discontent and repining, from the quarrels we raise with nature. And I believe, upon a strict inquiry, those quarrels might be shown as ill-grounded among us as they are among that people. + +As to their military affairs, they boast that the king's army consists of a hundred and seventy-six thousand foot, and thirty-two thousand horse: if that may be called an army, which is made up of tradesmen in the several cities, and farmers in the country, whose commanders are only the nobility and gentry, without pay or reward. They are indeed perfect enough in their exercises, and under very good discipline, wherein I saw no great merit; for how should it be otherwise, where every farmer is under the command of his own landlord, and every citizen under that of the principal men in his own city, chosen after the manner of Venice, by ballot? + +I have often seen the militia of Lorbrulgrud drawn out to exercise, in a great field near the city of twenty miles square. They were in all not above twenty-five thousand foot, and six thousand horse; but it was impossible for me to compute their number, considering the space of ground they took up. A cavalier, mounted on a large steed, might be about ninety feet high. I have seen this whole body of horse, upon a word of command, draw their swords at once, and brandish them in the air. Imagination can figure nothing so grand, so surprising, and so astonishing! it looked as if ten thousand flashes of lightning were darting at the same time from every quarter of the sky. + +I was curious to know how this prince, to whose dominions there is no access from any other country, came to think of armies, or to teach his people the practice of military discipline. But I was soon informed, both by conversation and reading their histories; for, in the course of many ages, they have been troubled with the same disease to which the whole race of mankind is subject; the nobility often contending for power, the people for liberty, and the king for absolute dominion. All which, however happily tempered by the laws of that kingdom, have been sometimes violated by each of the three parties, and have more than once occasioned civil wars; the last whereof was happily put an end to by this prince's grand-father, in a general composition; and the militia, then settled with common consent, has been ever since kept in the strictest duty. + +CHAPTER VIII. + +[The king and queen make a progress to the frontiers. The author attends them. The manner in which he leaves the country very particularly related. He returns to England.] + +I had always a strong impulse that I should some time recover my liberty, though it was impossible to conjecture by what means, or to form any project with the least hope of succeeding. The ship in which I sailed, was the first ever known to be driven within sight of that coast, and the king had given strict orders, that if at any time another appeared, it should be taken ashore, and with all its crew and passengers brought in a tumbril to Lorbrulgrud. He was strongly bent to get me a woman of my own size, by whom I might propagate the breed: but I think I should rather have died than undergone the disgrace of leaving a posterity to be kept in cages, like tame canary-birds, and perhaps, in time, sold about the kingdom, to persons of quality, for curiosities. I was indeed treated with much kindness: I was the favourite of a great king and queen, and the delight of the whole court; but it was upon such a foot as ill became the dignity of humankind. I could never forget those domestic pledges I had left behind me. I wanted to be among people, with whom I could converse upon even terms, and walk about the streets and fields without being afraid of being trod to death like a frog or a young puppy. But my deliverance came sooner than I expected, and in a manner not very common; the whole story and circumstances of which I shall faithfully relate. + +I had now been two years in this country; and about the beginning of the third, Glumdalclitch and I attended the king and queen, in a progress to the south coast of the kingdom. I was carried, as usual, in my travelling-box, which as I have already described, was a very convenient closet, of twelve feet wide. And I had ordered a hammock to be fixed, by silken ropes from the four corners at the top, to break the jolts, when a servant carried me before him on horseback, as I sometimes desired; and would often sleep in my hammock, while we were upon the road. On the roof of my closet, not directly over the middle of the hammock, I ordered the joiner to cut out a hole of a foot square, to give me air in hot weather, as I slept; which hole I shut at pleasure with a board that drew backward and forward through a groove. + +When we came to our journey's end, the king thought proper to pass a few days at a palace he has near Flanflasnic, a city within eighteen English miles of the seaside. Glumdalclitch and I were much fatigued: I had gotten a small cold, but the poor girl was so ill as to be confined to her chamber. I longed to see the ocean, which must be the only scene of my escape, if ever it should happen. I pretended to be worse than I really was, and desired leave to take the fresh air of the sea, with a page, whom I was very fond of, and who had sometimes been trusted with me. I shall never forget with what unwillingness Glumdalclitch consented, nor the strict charge she gave the page to be careful of me, bursting at the same time into a flood of tears, as if she had some forboding of what was to happen. The boy took me out in my box, about half an hours walk from the palace, towards the rocks on the sea-shore. I ordered him to set me down, and lifting up one of my sashes, cast many a wistful melancholy look towards the sea. I found myself not very well, and told the page that I had a mind to take a nap in my hammock, which I hoped would do me good. I got in, and the boy shut the window close down, to keep out the cold. I soon fell asleep, and all I can conjecture is, while I slept, the page, thinking no danger could happen, went among the rocks to look for birds' eggs, having before observed him from my window searching about, and picking up one or two in the clefts. Be that as it will, I found myself suddenly awaked with a violent pull upon the ring, which was fastened at the top of my box for the conveniency of carriage. I felt my box raised very high in the air, and then borne forward with prodigious speed. The first jolt had like to have shaken me out of my hammock, but afterward the motion was easy enough. I called out several times, as loud as I could raise my voice, but all to no purpose. I looked towards my windows, and could see nothing but the clouds and sky. I heard a noise just over my head, like the clapping of wings, and then began to perceive the woful condition I was in; that some eagle had got the ring of my box in his beak, with an intent to let it fall on a rock, like a tortoise in a shell, and then pick out my body, and devour it: for the sagacity and smell of this bird enables him to discover his quarry at a great distance, though better concealed than I could be within a two-inch board. + +In a little time, I observed the noise and flutter of wings to increase very fast, and my box was tossed up and down, like a sign in a windy day. I heard several bangs or buffets, as I thought given to the eagle (for such I am certain it must have been that held the ring of my box in his beak), and then, all on a sudden, felt myself falling perpendicularly down, for above a minute, but with such incredible swiftness, that I almost lost my breath. My fall was stopped by a terrible squash, that sounded louder to my ears than the cataract of Niagara; after which, I was quite in the dark for another minute, and then my box began to rise so high, that I could see light from the tops of the windows. I now perceived I was fallen into the sea. My box, by the weight of my body, the goods that were in, and the broad plates of iron fixed for strength at the four corners of the top and bottom, floated about five feet deep in water. I did then, and do now suppose, that the eagle which flew away with my box was pursued by two or three others, and forced to let me drop, while he defended himself against the rest, who hoped to share in the prey. The plates of iron fastened at the bottom of the box (for those were the strongest) preserved the balance while it fell, and hindered it from being broken on the surface of the water. Every joint of it was well grooved; and the door did not move on hinges, but up and down like a sash, which kept my closet so tight that very little water came in. I got with much difficulty out of my hammock, having first ventured to draw back the slip-board on the roof already mentioned, contrived on purpose to let in air, for want of which I found myself almost stifled. + +How often did I then wish myself with my dear Glumdalclitch, from whom one single hour had so far divided me! And I may say with truth, that in the midst of my own misfortunes I could not forbear lamenting my poor nurse, the grief she would suffer for my loss, the displeasure of the queen, and the ruin of her fortune. Perhaps many travellers have not been under greater difficulties and distress than I was at this juncture, expecting every moment to see my box dashed to pieces, or at least overset by the first violent blast, or rising wave. A breach in one single pane of glass would have been immediate death: nor could any thing have preserved the windows, but the strong lattice wires placed on the outside, against accidents in travelling. I saw the water ooze in at several crannies, although the leaks were not considerable, and I endeavoured to stop them as well as I could. I was not able to lift up the roof of my closet, which otherwise I certainly should have done, and sat on the top of it; where I might at least preserve myself some hours longer, than by being shut up (as I may call it) in the hold. Or if I escaped these dangers for a day or two, what could I expect but a miserable death of cold and hunger? I was four hours under these circumstances, expecting, and indeed wishing, every moment to be my last. + +I have already told the reader that there were two strong staples fixed upon that side of my box which had no window, and into which the servant, who used to carry me on horseback, would put a leathern belt, and buckle it about his waist. Being in this disconsolate state, I heard, or at least thought I heard, some kind of grating noise on that side of my box where the staples were fixed; and soon after I began to fancy that the box was pulled or towed along the sea; for I now and then felt a sort of tugging, which made the waves rise near the tops of my windows, leaving me almost in the dark. This gave me some faint hopes of relief, although I was not able to imagine how it could be brought about. I ventured to unscrew one of my chairs, which were always fastened to the floor; and having made a hard shift to screw it down again, directly under the slipping-board that I had lately opened, I mounted on the chair, and putting my mouth as near as I could to the hole, I called for help in a loud voice, and in all the languages I understood. I then fastened my handkerchief to a stick I usually carried, and thrusting it up the hole, waved it several times in the air, that if any boat or ship were near, the seamen might conjecture some unhappy mortal to be shut up in the box. + +I found no effect from all I could do, but plainly perceived my closet to be moved along; and in the space of an hour, or better, that side of the box where the staples were, and had no windows, struck against something that was hard. I apprehended it to be a rock, and found myself tossed more than ever. I plainly heard a noise upon the cover of my closet, like that of a cable, and the grating of it as it passed through the ring. I then found myself hoisted up, by degrees, at least three feet higher than I was before. Whereupon I again thrust up my stick and handkerchief, calling for help till I was almost hoarse. In return to which, I heard a great shout repeated three times, giving me such transports of joy as are not to be conceived but by those who feel them. I now heard a trampling over my head, and somebody calling through the hole with a loud voice, in the English tongue, "If there be any body below, let them speak." I answered, "I was an Englishman, drawn by ill fortune into the greatest calamity that ever any creature underwent, and begged, by all that was moving, to be delivered out of the dungeon I was in." The voice replied, "I was safe, for my box was fastened to their ship; and the carpenter should immediately come and saw a hole in the cover, large enough to pull me out." I answered, "that was needless, and would take up too much time; for there was no more to be done, but let one of the crew put his finger into the ring, and take the box out of the sea into the ship, and so into the captain's cabin." Some of them, upon hearing me talk so wildly, thought I was mad: others laughed; for indeed it never came into my head, that I was now got among people of my own stature and strength. The carpenter came, and in a few minutes sawed a passage about four feet square, then let down a small ladder, upon which I mounted, and thence was taken into the ship in a very weak condition. + +The sailors were all in amazement, and asked me a thousand questions, which I had no inclination to answer. I was equally confounded at the sight of so many pigmies, for such I took them to be, after having so long accustomed mine eyes to the monstrous objects I had left. But the captain, Mr. Thomas Wilcocks, an honest worthy Shropshire man, observing I was ready to faint, took me into his cabin, gave me a cordial to comfort me, and made me turn in upon his own bed, advising me to take a little rest, of which I had great need. Before I went to sleep, I gave him to understand that I had some valuable furniture in my box, too good to be lost: a fine hammock, a handsome field-bed, two chairs, a table, and a cabinet; that my closet was hung on all sides, or rather quilted, with silk and cotton; that if he would let one of the crew bring my closet into his cabin, I would open it there before him, and show him my goods. The captain, hearing me utter these absurdities, concluded I was raving; however (I suppose to pacify me) he promised to give order as I desired, and going upon deck, sent some of his men down into my closet, whence (as I afterwards found) they drew up all my goods, and stripped off the quilting; but the chairs, cabinet, and bedstead, being screwed to the floor, were much damaged by the ignorance of the seamen, who tore them up by force. Then they knocked off some of the boards for the use of the ship, and when they had got all they had a mind for, let the hull drop into the sea, which by reason of many breaches made in the bottom and sides, sunk to rights. And, indeed, I was glad not to have been a spectator of the havoc they made, because I am confident it would have sensibly touched me, by bringing former passages into my mind, which I would rather have forgot. + +I slept some hours, but perpetually disturbed with dreams of the place I had left, and the dangers I had escaped. However, upon waking, I found myself much recovered. It was now about eight o'clock at night, and the captain ordered supper immediately, thinking I had already fasted too long. He entertained me with great kindness, observing me not to look wildly, or talk inconsistently: and, when we were left alone, desired I would give him a relation of my travels, and by what accident I came to be set adrift, in that monstrous wooden chest. He said "that about twelve o'clock at noon, as he was looking through his glass, he spied it at a distance, and thought it was a sail, which he had a mind to make, being not much out of his course, in hopes of buying some biscuit, his own beginning to fall short. That upon coming nearer, and finding his error, he sent out his long-boat to discover what it was; that his men came back in a fright, swearing they had seen a swimming house. That he laughed at their folly, and went himself in the boat, ordering his men to take a strong cable along with them. That the weather being calm, he rowed round me several times, observed my windows and wire lattices that defended them. That he discovered two staples upon one side, which was all of boards, without any passage for light. He then commanded his men to row up to that side, and fastening a cable to one of the staples, ordered them to tow my chest, as they called it, toward the ship. When it was there, he gave directions to fasten another cable to the ring fixed in the cover, and to raise up my chest with pulleys, which all the sailors were not able to do above two or three feet." He said, "they saw my stick and handkerchief thrust out of the hole, and concluded that some unhappy man must be shut up in the cavity." I asked, "whether he or the crew had seen any prodigious birds in the air, about the time he first discovered me." To which he answered, that discoursing this matter with the sailors while I was asleep, one of them said, he had observed three eagles flying towards the north, but remarked nothing of their being larger than the usual size:" which I suppose must be imputed to the great height they were at; and he could not guess the reason of my question. I then asked the captain, "how far he reckoned we might be from land?" He said, "by the best computation he could make, we were at least a hundred leagues." I assured him, "that he must be mistaken by almost half, for I had not left the country whence I came above two hours before I dropped into the sea." Whereupon he began again to think that my brain was disturbed, of which he gave me a hint, and advised me to go to bed in a cabin he had provided. I assured him, "I was well refreshed with his good entertainment and company, and as much in my senses as ever I was in my life." He then grew serious, and desired to ask me freely, "whether I were not troubled in my mind by the consciousness of some enormous crime, for which I was punished, at the command of some prince, by exposing me in that chest; as great criminals, in other countries, have been forced to sea in a leaky vessel, without provisions: for although he should be sorry to have taken so ill a man into his ship, yet he would engage his word to set me safe ashore, in the first port where we arrived." He added, "that his suspicions were much increased by some very absurd speeches I had delivered at first to his sailors, and afterwards to himself, in relation to my closet or chest, as well as by my odd looks and behaviour while I was at supper." + +I begged his patience to hear me tell my story, which I faithfully did, from the last time I left England, to the moment he first discovered me. And, as truth always forces its way into rational minds, so this honest worthy gentleman, who had some tincture of learning, and very good sense, was immediately convinced of my candour and veracity. But further to confirm all I had said, I entreated him to give order that my cabinet should be brought, of which I had the key in my pocket; for he had already informed me how the seamen disposed of my closet. I opened it in his own presence, and showed him the small collection of rarities I made in the country from which I had been so strangely delivered. There was the comb I had contrived out of the stumps of the king's beard, and another of the same materials, but fixed into a paring of her majesty's thumb-nail, which served for the back. There was a collection of needles and pins, from a foot to half a yard long; four wasp stings, like joiner's tacks; some combings of the queen's hair; a gold ring, which one day she made me a present of, in a most obliging manner, taking it from her little finger, and throwing it over my head like a collar. I desired the captain would please to accept this ring in return for his civilities; which he absolutely refused. I showed him a corn that I had cut off with my own hand, from a maid of honour's toe; it was about the bigness of Kentish pippin, and grown so hard, that when I returned England, I got it hollowed into a cup, and set in silver. Lastly, I desired him to see the breeches I had then on, which were made of a mouse's skin. + +I could force nothing on him but a footman's tooth, which I observed him to examine with great curiosity, and found he had a fancy for it. He received it with abundance of thanks, more than such a trifle could deserve. It was drawn by an unskilful surgeon, in a mistake, from one of Glumdalclitch's men, who was afflicted with the tooth-ache, but it was as sound as any in his head. I got it cleaned, and put it into my cabinet. It was about a foot long, and four inches in diameter. + +The captain was very well satisfied with this plain relation I had given him, and said, "he hoped, when we returned to England, I would oblige the world by putting it on paper, and making it public." My answer was, "that we were overstocked with books of travels: that nothing could now pass which was not extraordinary; wherein I doubted some authors less consulted truth, than their own vanity, or interest, or the diversion of ignorant readers; that my story could contain little beside common events, without those ornamental descriptions of strange plants, trees, birds, and other animals; or of the barbarous customs and idolatry of savage people, with which most writers abound. However, I thanked him for his good opinion, and promised to take the matter into my thoughts." + +He said "he wondered at one thing very much, which was, to hear me speak so loud;" asking me "whether the king or queen of that country were thick of hearing?" I told him, "it was what I had been used to for above two years past, and that I admired as much at the voices of him and his men, who seemed to me only to whisper, and yet I could hear them well enough. But, when I spoke in that country, it was like a man talking in the streets, to another looking out from the top of a steeple, unless when I was placed on a table, or held in any person's hand." I told him, "I had likewise observed another thing, that, when I first got into the ship, and the sailors stood all about me, I thought they were the most little contemptible creatures I had ever beheld." For indeed, while I was in that prince's country, I could never endure to look in a glass, after mine eyes had been accustomed to such prodigious objects, because the comparison gave me so despicable a conceit of myself. The captain said, "that while we were at supper, he observed me to look at every thing with a sort of wonder, and that I often seemed hardly able to contain my laughter, which he knew not well how to take, but imputed it to some disorder in my brain." I answered, "it was very true; and I wondered how I could forbear, when I saw his dishes of the size of a silver three-pence, a leg of pork hardly a mouthful, a cup not so big as a nut-shell;" and so I went on, describing the rest of his household-stuff and provisions, after the same manner. For, although he queen had ordered a little equipage of all things necessary for me, while I was in her service, yet my ideas were wholly taken up with what I saw on every side of me, and I winked at my own littleness, as people do at their own faults. The captain understood my raillery very well, and merrily replied with the old English proverb, "that he doubted mine eyes were bigger than my belly, for he did not observe my stomach so good, although I had fasted all day;" and, continuing in his mirth, protested "he would have gladly given a hundred pounds, to have seen my closet in the eagle's bill, and afterwards in its fall from so great a height into the sea; which would certainly have been a most astonishing object, worthy to have the description of it transmitted to future ages:" and the comparison of Phaeton was so obvious, that he could not forbear applying it, although I did not much admire the conceit. + +The captain having been at Tonquin, was, in his return to England, driven north-eastward to the latitude of 44 degrees, and longitude of 143. But meeting a trade-wind two days after I came on board him, we sailed southward a long time, and coasting New Holland, kept our course west-south-west, and then south-south-west, till we doubled the Cape of Good Hope. Our voyage was very prosperous, but I shall not trouble the reader with a journal of it. The captain called in at one or two ports, and sent in his long-boat for provisions and fresh water; but I never went out of the ship till we came into the Downs, which was on the third day of June, 1706, about nine months after my escape. I offered to leave my goods in security for payment of my freight: but the captain protested he would not receive one farthing. We took a kind leave of each other, and I made him promise he would come to see me at my house in Redriff. I hired a horse and guide for five shillings, which I borrowed of the captain. + +As I was on the road, observing the littleness of the houses, the trees, the cattle, and the people, I began to think myself in Lilliput. I was afraid of trampling on every traveller I met, and often called aloud to have them stand out of the way, so that I had like to have gotten one or two broken heads for my impertinence. + +When I came to my own house, for which I was forced to inquire, one of the servants opening the door, I bent down to go in, (like a goose under a gate,) for fear of striking my head. My wife run out to embrace me, but I stooped lower than her knees, thinking she could otherwise never be able to reach my mouth. My daughter kneeled to ask my blessing, but I could not see her till she arose, having been so long used to stand with my head and eyes erect to above sixty feet; and then I went to take her up with one hand by the waist. I looked down upon the servants, and one or two friends who were in the house, as if they had been pigmies and I a giant. I told my wife, "she had been too thrifty, for I found she had starved herself and her daughter to nothing." In short, I behaved myself so unaccountably, that they were all of the captain's opinion when he first saw me, and concluded I had lost my wits. This I mention as an instance of the great power of habit and prejudice. + +In a little time, I and my family and friends came to a right understanding: but my wife protested "I should never go to sea any more;" although my evil destiny so ordered, that she had not power to hinder me, as the reader may know hereafter. In the mean time, I here conclude the second part of my unfortunate voyages. + +PART III. A VOYAGE TO LAPUTA, BALNIBARBI, LUGGNAGG, GLUBBDUBDRIB, AND JAPAN. + +CHAPTER I. + +[The author sets out on his third voyage. Is taken by pirates. The malice of a Dutchman. His arrival at an island. He is received into Laputa.] + +I had not been at home above ten days, when Captain William Robinson, a Cornish man, commander of the Hopewell, a stout ship of three hundred tons, came to my house. I had formerly been surgeon of another ship where he was master, and a fourth part owner, in a voyage to the Levant. He had always treated me more like a brother, than an inferior officer; and, hearing of my arrival, made me a visit, as I apprehended only out of friendship, for nothing passed more than what is usual after long absences. But repeating his visits often, expressing his joy to find I me in good health, asking, "whether I were now settled for life?" adding, "that he intended a voyage to the East Indies in two months," at last he plainly invited me, though with some apologies, to be surgeon of the ship; "that I should have another surgeon under me, beside our two mates; that my salary should be double to the usual pay; and that having experienced my knowledge in sea-affairs to be at least equal to his, he would enter into any engagement to follow my advice, as much as if I had shared in the command." + +He said so many other obliging things, and I knew him to be so honest a man, that I could not reject this proposal; the thirst I had of seeing the world, notwithstanding my past misfortunes, continuing as violent as ever. The only difficulty that remained, was to persuade my wife, whose consent however I at last obtained, by the prospect of advantage she proposed to her children. + +We set out the 5th day of August, 1706, and arrived at Fort St. George the 11th of April, 1707. We staid there three weeks to refresh our crew, many of whom were sick. From thence we went to Tonquin, where the captain resolved to continue some time, because many of the goods he intended to buy were not ready, nor could he expect to be dispatched in several months. Therefore, in hopes to defray some of the charges he must be at, he bought a sloop, loaded it with several sorts of goods, wherewith the Tonquinese usually trade to the neighbouring islands, and putting fourteen men on board, whereof three were of the country, he appointed me master of the sloop, and gave me power to traffic, while he transacted his affairs at Tonquin. + +We had not sailed above three days, when a great storm arising, we were driven five days to the north-north-east, and then to the east: after which we had fair weather, but still with a pretty strong gale from the west. Upon the tenth day we were chased by two pirates, who soon overtook us; for my sloop was so deep laden, that she sailed very slow, neither were we in a condition to defend ourselves. + +We were boarded about the same time by both the pirates, who entered furiously at the head of their men; but finding us all prostrate upon our faces (for so I gave order), they pinioned us with strong ropes, and setting guard upon us, went to search the sloop. + +I observed among them a Dutchman, who seemed to be of some authority, though he was not commander of either ship. He knew us by our countenances to be Englishmen, and jabbering to us in his own language, swore we should be tied back to back and thrown into the sea. I spoken Dutch tolerably well; I told him who we were, and begged him, in consideration of our being Christians and Protestants, of neighbouring countries in strict alliance, that he would move the captains to take some pity on us. This inflamed his rage; he repeated his threatenings, and turning to his companions, spoke with great vehemence in the Japanese language, as I suppose, often using the word Christianos. + +The largest of the two pirate ships was commanded by a Japanese captain, who spoke a little Dutch, but very imperfectly. He came up to me, and after several questions, which I answered in great humility, he said, "we should not die." I made the captain a very low bow, and then, turning to the Dutchman, said, "I was sorry to find more mercy in a heathen, than in a brother christian." But I had soon reason to repent those foolish words: for that malicious reprobate, having often endeavoured in vain to persuade both the captains that I might be thrown into the sea (which they would not yield to, after the promise made me that I should not die), however, prevailed so far, as to have a punishment inflicted on me, worse, in all human appearance, than death itself. My men were sent by an equal division into both the pirate ships, and my sloop new manned. As to myself, it was determined that I should be set adrift in a small canoe, with paddles and a sail, and four days' provisions; which last, the Japanese captain was so kind to double out of his own stores, and would permit no man to search me. I got down into the canoe, while the Dutchman, standing upon the deck, loaded me with all the curses and injurious terms his language could afford. + +About an hour before we saw the pirates I had taken an observation, and found we were in the latitude of 46 N. and longitude of 183. When I was at some distance from the pirates, I discovered, by my pocket-glass, several islands to the south-east. I set up my sail, the wind being fair, with a design to reach the nearest of those islands, which I made a shift to do, in about three hours. It was all rocky: however I got many birds' eggs; and, striking fire, I kindled some heath and dry sea-weed, by which I roasted my eggs. I ate no other supper, being resolved to spare my provisions as much as I could. I passed the night under the shelter of a rock, strewing some heath under me, and slept pretty well. + +The next day I sailed to another island, and thence to a third and fourth, sometimes using my sail, and sometimes my paddles. But, not to trouble the reader with a particular account of my distresses, let it suffice, that on the fifth day I arrived at the last island in my sight, which lay south-south-east to the former. + +This island was at a greater distance than I expected, and I did not reach it in less than five hours. I encompassed it almost round, before I could find a convenient place to land in; which was a small creek, about three times the wideness of my canoe. I found the island to be all rocky, only a little intermingled with tufts of grass, and sweet-smelling herbs. I took out my small provisions and after having refreshed myself, I secured the remainder in a cave, whereof there were great numbers; I gathered plenty of eggs upon the rocks, and got a quantity of dry sea-weed, and parched grass, which I designed to kindle the next day, and roast my eggs as well as I could, for I had about me my flint, steel, match, and burning-glass. I lay all night in the cave where I had lodged my provisions. My bed was the same dry grass and sea-weed which I intended for fuel. I slept very little, for the disquiets of my mind prevailed over my weariness, and kept me awake. I considered how impossible it was to preserve my life in so desolate a place, and how miserable my end must be: yet found myself so listless and desponding, that I had not the heart to rise; and before I could get spirits enough to creep out of my cave, the day was far advanced. I walked awhile among the rocks: the sky was perfectly clear, and the sun so hot, that I was forced to turn my face from it: when all on a sudden it became obscure, as I thought, in a manner very different from what happens by the interposition of a cloud. I turned back, and perceived a vast opaque body between me and the sun moving forwards towards the island: it seemed to be about two miles high, and hid the sun six or seven minutes; but I did not observe the air to be much colder, or the sky more darkened, than if I had stood under the shade of a mountain. As it approached nearer over the place where I was, it appeared to be a firm substance, the bottom flat, smooth, and shining very bright, from the reflection of the sea below. I stood upon a height about two hundred yards from the shore, and saw this vast body descending almost to a parallel with me, at less than an English mile distance. I took out my pocket perspective, and could plainly discover numbers of people moving up and down the sides of it, which appeared to be sloping; but what those people where doing I was not able to distinguish. + +The natural love of life gave me some inward motion of joy, and I was ready to entertain a hope that this adventure might, some way or other, help to deliver me from the desolate place and condition I was in. But at the same time the reader can hardly conceive my astonishment, to behold an island in the air, inhabited by men, who were able (as it should seem) to raise or sink, or put it into progressive motion, as they pleased. But not being at that time in a disposition to philosophise upon this phenomenon, I rather chose to observe what course the island would take, because it seemed for awhile to stand still. Yet soon after, it advanced nearer, and I could see the sides of it encompassed with several gradations of galleries, and stairs, at certain intervals, to descend from one to the other. In the lowest gallery, I beheld some people fishing with long angling rods, and others looking on. I waved my cap (for my hat was long since worn out) and my handkerchief toward the island; and upon its nearer approach, I called and shouted with the utmost strength of my voice; and then looking circumspectly, I beheld a crowd gather to that side which was most in my view. I found by their pointing towards me and to each other, that they plainly discovered me, although they made no return to my shouting. But I could see four or five men running in great haste, up the stairs, to the top of the island, who then disappeared. I happened rightly to conjecture, that these were sent for orders to some person in authority upon this occasion. + +The number of people increased, and, in less than half all hour, the island was moved and raised in such a manner, that the lowest gallery appeared in a parallel of less then a hundred yards distance from the height where I stood. I then put myself in the most supplicating posture, and spoke in the humblest accent, but received no answer. Those who stood nearest over against me, seemed to be persons of distinction, as I supposed by their habit. They conferred earnestly with each other, looking often upon me. At length one of them called out in a clear, polite, smooth dialect, not unlike in sound to the Italian: and therefore I returned an answer in that language, hoping at least that the cadence might be more agreeable to his ears. Although neither of us understood the other, yet my meaning was easily known, for the people saw the distress I was in. + +They made signs for me to come down from the rock, and go towards the shore, which I accordingly did; and the flying island being raised to a convenient height, the verge directly over me, a chain was let down from the lowest gallery, with a seat fastened to the bottom, to which I fixed myself, and was drawn up by pulleys. + +CHAPTER II. + +[The humours and dispositions of the Laputians described. An account of their learning. Of the king and his court. The author's reception there. The inhabitants subject to fear and disquietudes. An account of the women.] + +At my alighting, I was surrounded with a crowd of people, but those who stood nearest seemed to be of better quality. They beheld me with all the marks and circumstances of wonder; neither indeed was I much in their debt, having never till then seen a race of mortals so singular in their shapes, habits, and countenances. Their heads were all reclined, either to the right, or the left; one of their eyes turned inward, and the other directly up to the zenith. Their outward garments were adorned with the figures of suns, moons, and stars; interwoven with those of fiddles, flutes, harps, trumpets, guitars, harpsichords, and many other instruments of music, unknown to us in Europe. I observed, here and there, many in the habit of servants, with a blown bladder, fastened like a flail to the end of a stick, which they carried in their hands. In each bladder was a small quantity of dried peas, or little pebbles, as I was afterwards informed. With these bladders, they now and then flapped the mouths and ears of those who stood near them, of which practice I could not then conceive the meaning. It seems the minds of these people are so taken up with intense speculations, that they neither can speak, nor attend to the discourses of others, without being roused by some external taction upon the organs of speech and hearing; for which reason, those persons who are able to afford it always keep a flapper (the original is climenole) in their family, as one of their domestics; nor ever walk abroad, or make visits, without him. And the business of this officer is, when two, three, or more persons are in company, gently to strike with his bladder the mouth of him who is to speak, and the right ear of him or them to whom the speaker addresses himself. This flapper is likewise employed diligently to attend his master in his walks, and upon occasion to give him a soft flap on his eyes; because he is always so wrapped up in cogitation, that he is in manifest danger of falling down every precipice, and bouncing his head against every post; and in the streets, of justling others, or being justled himself into the kennel. + +It was necessary to give the reader this information, without which he would be at the same loss with me to understand the proceedings of these people, as they conducted me up the stairs to the top of the island, and from thence to the royal palace. While we were ascending, they forgot several times what they were about, and left me to myself, till their memories were again roused by their flappers; for they appeared altogether unmoved by the sight of my foreign habit and countenance, and by the shouts of the vulgar, whose thoughts and minds were more disengaged. + +At last we entered the palace, and proceeded into the chamber of presence, where I saw the king seated on his throne, attended on each side by persons of prime quality. Before the throne, was a large table filled with globes and spheres, and mathematical instruments of all kinds. His majesty took not the least notice of us, although our entrance was not without sufficient noise, by the concourse of all persons belonging to the court. But he was then deep in a problem; and we attended at least an hour, before he could solve it. There stood by him, on each side, a young page with flaps in their hands, and when they saw he was at leisure, one of them gently struck his mouth, and the other his right ear; at which he startled like one awaked on the sudden, and looking towards me and the company I was in, recollected the occasion of our coming, whereof he had been informed before. He spoke some words, whereupon immediately a young man with a flap came up to my side, and flapped me gently on the right ear; but I made signs, as well as I could, that I had no occasion for such an instrument; which, as I afterwards found, gave his majesty, and the whole court, a very mean opinion of my understanding. The king, as far as I could conjecture, asked me several questions, and I addressed myself to him in all the languages I had. When it was found I could neither understand nor be understood, I was conducted by his order to an apartment in his palace (this prince being distinguished above all his predecessors for his hospitality to strangers), where two servants were appointed to attend me. My dinner was brought, and four persons of quality, whom I remembered to have seen very near the king's person, did me the honour to dine with me. We had two courses, of three dishes each. In the first course, there was a shoulder of mutton cut into an equilateral triangle, a piece of beef into a rhomboides, and a pudding into a cycloid. The second course was two ducks trussed up in the form of fiddles; sausages and puddings resembling flutes and hautboys, and a breast of veal in the shape of a harp. The servants cut our bread into cones, cylinders, parallelograms, and several other mathematical figures. + +While we were at dinner, I made bold to ask the names of several things in their language, and those noble persons, by the assistance of their flappers, delighted to give me answers, hoping to raise my admiration of their great abilities if I could be brought to converse with them. I was soon able to call for bread and drink, or whatever else I wanted. + +After dinner my company withdrew, and a person was sent to me by the king's order, attended by a flapper. He brought with him pen, ink, and paper, and three or four books, giving me to understand by signs, that he was sent to teach me the language. We sat together four hours, in which time I wrote down a great number of words in columns, with the translations over against them; I likewise made a shift to learn several short sentences; for my tutor would order one of my servants to fetch something, to turn about, to make a bow, to sit, or to stand, or walk, and the like. Then I took down the sentence in writing. He showed me also, in one of his books, the figures of the sun, moon, and stars, the zodiac, the tropics, and polar circles, together with the denominations of many plains and solids. He gave me the names and descriptions of all the musical instruments, and the general terms of art in playing on each of them. After he had left me, I placed all my words, with their interpretations, in alphabetical order. And thus, in a few days, by the help of a very faithful memory, I got some insight into their language. The word, which I interpret the flying or floating island, is in the original Laputa, whereof I could never learn the true etymology. Lap, in the old obsolete language, signifies high; and untuh, a governor; from which they say, by corruption, was derived Laputa, from Lapuntuh. But I do not approve of this derivation, which seems to be a little strained. I ventured to offer to the learned among them a conjecture of my own, that Laputa was quasi lap outed; lap, signifying properly, the dancing of the sunbeams in the sea, and outed, a wing; which, however, I shall not obtrude, but submit to the judicious reader. + +Those to whom the king had entrusted me, observing how ill I was clad, ordered a tailor to come next morning, and take measure for a suit of clothes. This operator did his office after a different manner from those of his trade in Europe. He first took my altitude by a quadrant, and then, with a rule and compasses, described the dimensions and outlines of my whole body, all which he entered upon paper; and in six days brought my clothes very ill made, and quite out of shape, by happening to mistake a figure in the calculation. But my comfort was, that I observed such accidents very frequent, and little regarded. + +During my confinement for want of clothes, and by an indisposition that held me some days longer, I much enlarged my dictionary; and when I went next to court, was able to understand many things the king spoke, and to return him some kind of answers. His majesty had given orders, that the island should move north-east and by east, to the vertical point over Lagado, the metropolis of the whole kingdom below, upon the firm earth. It was about ninety leagues distant, and our voyage lasted four days and a half. I was not in the least sensible of the progressive motion made in the air by the island. On the second morning, about eleven o'clock, the king himself in person, attended by his nobility, courtiers, and officers, having prepared all their musical instruments, played on them for three hours without intermission, so that I was quite stunned with the noise; neither could I possibly guess the meaning, till my tutor informed me. He said that, the people of their island had their ears adapted to hear "the music of the spheres, which always played at certain periods, and the court was now prepared to bear their part, in whatever instrument they most excelled." + +In our journey towards Lagado, the capital city, his majesty ordered that the island should stop over certain towns and villages, from whence he might receive the petitions of his subjects. And to this purpose, several packthreads were let down, with small weights at the bottom. On these packthreads the people strung their petitions, which mounted up directly, like the scraps of paper fastened by school boys at the end of the string that holds their kite. Sometimes we received wine and victuals from below, which were drawn up by pulleys. + +The knowledge I had in mathematics, gave me great assistance in acquiring their phraseology, which depended much upon that science, and music; and in the latter I was not unskilled. Their ideas are perpetually conversant in lines and figures. If they would, for example, praise the beauty of a woman, or any other animal, they describe it by rhombs, circles, parallelograms, ellipses, and other geometrical terms, or by words of art drawn from music, needless here to repeat. I observed in the king's kitchen all sorts of mathematical and musical instruments, after the figures of which they cut up the joints that were served to his majesty's table. + +Their houses are very ill built, the walls bevil, without one right angle in any apartment; and this defect arises from the contempt they bear to practical geometry, which they despise as vulgar and mechanic; those instructions they give being too refined for the intellects of their workmen, which occasions perpetual mistakes. And although they are dexterous enough upon a piece of paper, in the management of the rule, the pencil, and the divider, yet in the common actions and behaviour of life, I have not seen a more clumsy, awkward, and unhandy people, nor so slow and perplexed in their conceptions upon all other subjects, except those of mathematics and music. They are very bad reasoners, and vehemently given to opposition, unless when they happen to be of the right opinion, which is seldom their case. Imagination, fancy, and invention, they are wholly strangers to, nor have any words in their language, by which those ideas can be expressed; the whole compass of their thoughts and mind being shut up within the two forementioned sciences. + +Most of them, and especially those who deal in the astronomical part, have great faith in judicial astrology, although they are ashamed to own it publicly. But what I chiefly admired, and thought altogether unaccountable, was the strong disposition I observed in them towards news and politics, perpetually inquiring into public affairs, giving their judgments in matters of state, and passionately disputing every inch of a party opinion. I have indeed observed the same disposition among most of the mathematicians I have known in Europe, although I could never discover the least analogy between the two sciences; unless those people suppose, that because the smallest circle has as many degrees as the largest, therefore the regulation and management of the world require no more abilities than the handling and turning of a globe; but I rather take this quality to spring from a very common infirmity of human nature, inclining us to be most curious and conceited in matters where we have least concern, and for which we are least adapted by study or nature. + +These people are under continual disquietudes, never enjoying a minutes peace of mind; and their disturbances proceed from causes which very little affect the rest of mortals. Their apprehensions arise from several changes they dread in the celestial bodies: for instance, that the earth, by the continual approaches of the sun towards it, must, in course of time, be absorbed, or swallowed up; that the face of the sun, will, by degrees, be encrusted with its own effluvia, and give no more light to the world; that the earth very narrowly escaped a brush from the tail of the last comet, which would have infallibly reduced it to ashes; and that the next, which they have calculated for one-and-thirty years hence, will probably destroy us. For if, in its perihelion, it should approach within a certain degree of the sun (as by their calculations they have reason to dread) it will receive a degree of heat ten thousand times more intense than that of red hot glowing iron, and in its absence from the sun, carry a blazing tail ten hundred thousand and fourteen miles long, through which, if the earth should pass at the distance of one hundred thousand miles from the nucleus, or main body of the comet, it must in its passage be set on fire, and reduced to ashes: that the sun, daily spending its rays without any nutriment to supply them, will at last be wholly consumed and annihilated; which must be attended with the destruction of this earth, and of all the planets that receive their light from it. + +They are so perpetually alarmed with the apprehensions of these, and the like impending dangers, that they can neither sleep quietly in their beds, nor have any relish for the common pleasures and amusements of life. When they meet an acquaintance in the morning, the first question is about the sun's health, how he looked at his setting and rising, and what hopes they have to avoid the stroke of the approaching comet. This conversation they are apt to run into with the same temper that boys discover in delighting to hear terrible stories of spirits and hobgoblins, which they greedily listen to, and dare not go to bed for fear. + +The women of the island have abundance of vivacity: they, contemn their husbands, and are exceedingly fond of strangers, whereof there is always a considerable number from the continent below, attending at court, either upon affairs of the several towns and corporations, or their own particular occasions, but are much despised, because they want the same endowments. Among these the ladies choose their gallants: but the vexation is, that they act with too much ease and security; for the husband is always so rapt in speculation, that the mistress and lover may proceed to the greatest familiarities before his face, if he be but provided with paper and implements, and without his flapper at his side. + +The wives and daughters lament their confinement to the island, although I think it the most delicious spot of ground in the world; and although they live here in the greatest plenty and magnificence, and are allowed to do whatever they please, they long to see the world, and take the diversions of the metropolis, which they are not allowed to do without a particular license from the king; and this is not easy to be obtained, because the people of quality have found, by frequent experience, how hard it is to persuade their women to return from below. I was told that a great court lady, who had several children,--is married to the prime minister, the richest subject in the kingdom, a very graceful person, extremely fond of her, and lives in the finest palace of the island,--went down to Lagado on the pretence of health, there hid herself for several months, till the king sent a warrant to search for her; and she was found in an obscure eating-house all in rags, having pawned her clothes to maintain an old deformed footman, who beat her every day, and in whose company she was taken, much against her will. And although her husband received her with all possible kindness, and without the least reproach, she soon after contrived to steal down again, with all her jewels, to the same gallant, and has not been heard of since. + +This may perhaps pass with the reader rather for an European or English story, than for one of a country so remote. But he may please to consider, that the caprices of womankind are not limited by any climate or nation, and that they are much more uniform, than can be easily imagined. + +In about a month's time, I had made a tolerable proficiency in their language, and was able to answer most of the king's questions, when I had the honour to attend him. His majesty discovered not the least curiosity to inquire into the laws, government, history, religion, or manners of the countries where I had been; but confined his questions to the state of mathematics, and received the account I gave him with great contempt and indifference, though often roused by his flapper on each side. + +CHAPTER III. + +[A phenomenon solved by modern philosophy and astronomy. The Laputians' great improvements in the latter. The king's method of suppressing insurrections.] + +I desired leave of this prince to see the curiosities of the island, which he was graciously pleased to grant, and ordered my tutor to attend me. I chiefly wanted to know, to what cause, in art or in nature, it owed its several motions, whereof I will now give a philosophical account to the reader. + +The flying or floating island is exactly circular, its diameter 7837 yards, or about four miles and a half, and consequently contains ten thousand acres. It is three hundred yards thick. The bottom, or under surface, which appears to those who view it below, is one even regular plate of adamant, shooting up to the height of about two hundred yards. Above it lie the several minerals in their usual order, and over all is a coat of rich mould, ten or twelve feet deep. The declivity of the upper surface, from the circumference to the centre, is the natural cause why all the dews and rains, which fall upon the island, are conveyed in small rivulets toward the middle, where they are emptied into four large basins, each of about half a mile in circuit, and two hundred yards distant from the centre. From these basins the water is continually exhaled by the sun in the daytime, which effectually prevents their overflowing. Besides, as it is in the power of the monarch to raise the island above the region of clouds and vapours, he can prevent the falling of dews and rain whenever he pleases. For the highest clouds cannot rise above two miles, as naturalists agree, at least they were never known to do so in that country. + +At the centre of the island there is a chasm about fifty yards in diameter, whence the astronomers descend into a large dome, which is therefore called flandona gagnole, or the astronomer's cave, situated at the depth of a hundred yards beneath the upper surface of the adamant. In this cave are twenty lamps continually burning, which, from the reflection of the adamant, cast a strong light into every part. The place is stored with great variety of sextants, quadrants, telescopes, astrolabes, and other astronomical instruments. But the greatest curiosity, upon which the fate of the island depends, is a loadstone of a prodigious size, in shape resembling a weaver's shuttle. It is in length six yards, and in the thickest part at least three yards over. This magnet is sustained by a very strong axle of adamant passing through its middle, upon which it plays, and is poised so exactly that the weakest hand can turn it. It is hooped round with a hollow cylinder of adamant, four feet yards in diameter, placed horizontally, and supported by eight adamantine feet, each six yards high. In the middle of the concave side, there is a groove twelve inches deep, in which the extremities of the axle are lodged, and turned round as there is occasion. + +The stone cannot be removed from its place by any force, because the hoop and its feet are one continued piece with that body of adamant which constitutes the bottom of the island. + +By means of this loadstone, the island is made to rise and fall, and move from one place to another. For, with respect to that part of the earth over which the monarch presides, the stone is endued at one of its sides with an attractive power, and at the other with a repulsive. Upon placing the magnet erect, with its attracting end towards the earth, the island descends; but when the repelling extremity points downwards, the island mounts directly upwards. When the position of the stone is oblique, the motion of the island is so too: for in this magnet, the forces always act in lines parallel to its direction. + +By this oblique motion, the island is conveyed to different parts of the monarch's dominions. To explain the manner of its progress, let A B represent a line drawn across the dominions of Balnibarbi, let the line c d represent the loadstone, of which let d be the repelling end, and c the attracting end, the island being over C: let the stone be placed in position c d, with its repelling end downwards; then the island will be driven upwards obliquely towards D. When it is arrived at D, let the stone be turned upon its axle, till its attracting end points towards E, and then the island will be carried obliquely towards E; where, if the stone be again turned upon its axle till it stands in the position E F, with its repelling point downwards, the island will rise obliquely towards F, where, by directing the attracting end towards G, the island may be carried to G, and from G to H, by turning the stone, so as to make its repelling extremity to point directly downward. And thus, by changing the situation of the stone, as often as there is occasion, the island is made to rise and fall by turns in an oblique direction, and by those alternate risings and fallings (the obliquity being not considerable) is conveyed from one part of the dominions to the other. + +But it must be observed, that this island cannot move beyond the extent of the dominions below, nor can it rise above the height of four miles. For which the astronomers (who have written large systems concerning the stone) assign the following reason: that the magnetic virtue does not extend beyond the distance of four miles, and that the mineral, which acts upon the stone in the bowels of the earth, and in the sea about six leagues distant from the shore, is not diffused through the whole globe, but terminated with the limits of the king's dominions; and it was easy, from the great advantage of such a superior situation, for a prince to bring under his obedience whatever country lay within the attraction of that magnet. + +When the stone is put parallel to the plane of the horizon, the island stands still; for in that case the extremities of it, being at equal distance from the earth, act with equal force, the one in drawing downwards, the other in pushing upwards, and consequently no motion can ensue. + +This loadstone is under the care of certain astronomers, who, from time to time, give it such positions as the monarch directs. They spend the greatest part of their lives in observing the celestial bodies, which they do by the assistance of glasses, far excelling ours in goodness. For, although their largest telescopes do not exceed three feet, they magnify much more than those of a hundred with us, and show the stars with greater clearness. This advantage has enabled them to extend their discoveries much further than our astronomers in Europe; for they have made a catalogue of ten thousand fixed stars, whereas the largest of ours do not contain above one third part of that number. They have likewise discovered two lesser stars, or satellites, which revolve about Mars; whereof the innermost is distant from the centre of the primary planet exactly three of his diameters, and the outermost, five; the former revolves in the space of ten hours, and the latter in twenty-one and a half; so that the squares of their periodical times are very near in the same proportion with the cubes of their distance from the centre of Mars; which evidently shows them to be governed by the same law of gravitation that influences the other heavenly bodies. + +They have observed ninety-three different comets, and settled their periods with great exactness. If this be true (and they affirm it with great confidence) it is much to be wished, that their observations were made public, whereby the theory of comets, which at present is very lame and defective, might be brought to the same perfection with other arts of astronomy. + +The king would be the most absolute prince in the universe, if he could but prevail on a ministry to join with him; but these having their estates below on the continent, and considering that the office of a favourite has a very uncertain tenure, would never consent to the enslaving of their country. + +If any town should engage in rebellion or mutiny, fall into violent factions, or refuse to pay the usual tribute, the king has two methods of reducing them to obedience. The first and the mildest course is, by keeping the island hovering over such a town, and the lands about it, whereby he can deprive them of the benefit of the sun and the rain, and consequently afflict the inhabitants with dearth and diseases: and if the crime deserve it, they are at the same time pelted from above with great stones, against which they have no defence but by creeping into cellars or caves, while the roofs of their houses are beaten to pieces. But if they still continue obstinate, or offer to raise insurrections, he proceeds to the last remedy, by letting the island drop directly upon their heads, which makes a universal destruction both of houses and men. However, this is an extremity to which the prince is seldom driven, neither indeed is he willing to put it in execution; nor dare his ministers advise him to an action, which, as it would render them odious to the people, so it would be a great damage to their own estates, which all lie below; for the island is the king's demesne. + +But there is still indeed a more weighty reason, why the kings of this country have been always averse from executing so terrible an action, unless upon the utmost necessity. For, if the town intended to be destroyed should have in it any tall rocks, as it generally falls out in the larger cities, a situation probably chosen at first with a view to prevent such a catastrophe; or if it abound in high spires, or pillars of stone, a sudden fall might endanger the bottom or under surface of the island, which, although it consist, as I have said, of one entire adamant, two hundred yards thick, might happen to crack by too great a shock, or burst by approaching too near the fires from the houses below, as the backs, both of iron and stone, will often do in our chimneys. Of all this the people are well apprised, and understand how far to carry their obstinacy, where their liberty or property is concerned. And the king, when he is highest provoked, and most determined to press a city to rubbish, orders the island to descend with great gentleness, out of a pretence of tenderness to his people, but, indeed, for fear of breaking the adamantine bottom; in which case, it is the opinion of all their philosophers, that the loadstone could no longer hold it up, and the whole mass would fall to the ground. + +By a fundamental law of this realm, neither the king, nor either of his two eldest sons, are permitted to leave the island; nor the queen, till she is past child-bearing. + +CHAPTER IV. + +[The author leaves Laputa; is conveyed to Balnibarbi; arrives at the metropolis. A description of the metropolis, and the country adjoining. The author hospitably received by a great lord. His conversation with that lord.] + +Although I cannot say that I was ill treated in this island, yet I must confess I thought myself too much neglected, not without some degree of contempt; for neither prince nor people appeared to be curious in any part of knowledge, except mathematics and music, wherein I was far their inferior, and upon that account very little regarded. + +On the other side, after having seen all the curiosities of the island, I was very desirous to leave it, being heartily weary of those people. They were indeed excellent in two sciences for which I have great esteem, and wherein I am not unversed; but, at the same time, so abstracted and involved in speculation, that I never met with such disagreeable companions. I conversed only with women, tradesmen, flappers, and court-pages, during two months of my abode there; by which, at last, I rendered myself extremely contemptible; yet these were the only people from whom I could ever receive a reasonable answer. + +I had obtained, by hard study, a good degree of knowledge in their language: I was weary of being confined to an island where I received so little countenance, and resolved to leave it with the first opportunity. + +There was a great lord at court, nearly related to the king, and for that reason alone used with respect. He was universally reckoned the most ignorant and stupid person among them. He had performed many eminent services for the crown, had great natural and acquired parts, adorned with integrity and honour; but so ill an ear for music, that his detractors reported, "he had been often known to beat time in the wrong place;" neither could his tutors, without extreme difficulty, teach him to demonstrate the most easy proposition in the mathematics. He was pleased to show me many marks of favour, often did me the honour of a visit, desired to be informed in the affairs of Europe, the laws and customs, the manners and learning of the several countries where I had travelled. He listened to me with great attention, and made very wise observations on all I spoke. He had two flappers attending him for state, but never made use of them, except at court and in visits of ceremony, and would always command them to withdraw, when we were alone together. + +I entreated this illustrious person, to intercede in my behalf with his majesty, for leave to depart; which he accordingly did, as he was pleased to tell me, with regret: for indeed he had made me several offers very advantageous, which, however, I refused, with expressions of the highest acknowledgment. + +On the 16th of February I took leave of his majesty and the court. The king made me a present to the value of about two hundred pounds English, and my protector, his kinsman, as much more, together with a letter of recommendation to a friend of his in Lagado, the metropolis. The island being then hovering over a mountain about two miles from it, I was let down from the lowest gallery, in the same manner as I had been taken up. + +The continent, as far as it is subject to the monarch of the flying island, passes under the general name of Balnibarbi; and the metropolis, as I said before, is called Lagado. I felt some little satisfaction in finding myself on firm ground. I walked to the city without any concern, being clad like one of the natives, and sufficiently instructed to converse with them. I soon found out the person's house to whom I was recommended, presented my letter from his friend the grandee in the island, and was received with much kindness. This great lord, whose name was Munodi, ordered me an apartment in his own house, where I continued during my stay, and was entertained in a most hospitable manner. + +The next morning after my arrival, he took me in his chariot to see the town, which is about half the bigness of London; but the houses very strangely built, and most of them out of repair. The people in the streets walked fast, looked wild, their eyes fixed, and were generally in rags. We passed through one of the town gates, and went about three miles into the country, where I saw many labourers working with several sorts of tools in the ground, but was not able to conjecture what they were about: neither did observe any expectation either of corn or grass, although the soil appeared to be excellent. I could not forbear admiring at these odd appearances, both in town and country; and I made bold to desire my conductor, that he would be pleased to explain to me, what could be meant by so many busy heads, hands, and faces, both in the streets and the fields, because I did not discover any good effects they produced; but, on the contrary, I never knew a soil so unhappily cultivated, houses so ill contrived and so ruinous, or a people whose countenances and habit expressed so much misery and want. + +This lord Munodi was a person of the first rank, and had been some years governor of Lagado; but, by a cabal of ministers, was discharged for insufficiency. However, the king treated him with tenderness, as a well-meaning man, but of a low contemptible understanding. + +When I gave that free censure of the country and its inhabitants, he made no further answer than by telling me, "that I had not been long enough among them to form a judgment; and that the different nations of the world had different customs;" with other common topics to the same purpose. But, when we returned to his palace, he asked me "how I liked the building, what absurdities I observed, and what quarrel I had with the dress or looks of his domestics?" This he might safely do; because every thing about him was magnificent, regular, and polite. I answered, "that his excellency's prudence, quality, and fortune, had exempted him from those defects, which folly and beggary had produced in others." He said, "if I would go with him to his country-house, about twenty miles distant, where his estate lay, there would be more leisure for this kind of conversation." I told his excellency "that I was entirely at his disposal;" and accordingly we set out next morning. + +During our journey he made me observe the several methods used by farmers in managing their lands, which to me were wholly unaccountable; for, except in some very few places, I could not discover one ear of corn or blade of grass. But, in three hours travelling, the scene was wholly altered; we came into a most beautiful country; farmers' houses, at small distances, neatly built; the fields enclosed, containing vineyards, corn-grounds, and meadows. Neither do I remember to have seen a more delightful prospect. His excellency observed my countenance to clear up; he told me, with a sigh, "that there his estate began, and would continue the same, till we should come to his house: that his countrymen ridiculed and despised him, for managing his affairs no better, and for setting so ill an example to the kingdom; which, however, was followed by very few, such as were old, and wilful, and weak like himself." + +We came at length to the house, which was indeed a noble structure, built according to the best rules of ancient architecture. The fountains, gardens, walks, avenues, and groves, were all disposed with exact judgment and taste. I gave due praises to every thing I saw, whereof his excellency took not the least notice till after supper; when, there being no third companion, he told me with a very melancholy air "that he doubted he must throw down his houses in town and country, to rebuild them after the present mode; destroy all his plantations, and cast others into such a form as modern usage required, and give the same directions to all his tenants, unless he would submit to incur the censure of pride, singularity, affectation, ignorance, caprice, and perhaps increase his majesty's displeasure; that the admiration I appeared to be under would cease or diminish, when he had informed me of some particulars which, probably, I never heard of at court, the people there being too much taken up in their own speculations, to have regard to what passed here below." + +The sum of his discourse was to this effect: "That about forty years ago, certain persons went up to Laputa, either upon business or diversion, and, after five months continuance, came back with a very little smattering in mathematics, but full of volatile spirits acquired in that airy region: that these persons, upon their return, began to dislike the management of every thing below, and fell into schemes of putting all arts, sciences, languages, and mechanics, upon a new foot. To this end, they procured a royal patent for erecting an academy of projectors in Lagado; and the humour prevailed so strongly among the people, that there is not a town of any consequence in the kingdom without such an academy. In these colleges the professors contrive new rules and methods of agriculture and building, and new instruments, and tools for all trades and manufactures; whereby, as they undertake, one man shall do the work of ten; a palace may be built in a week, of materials so durable as to last for ever without repairing. All the fruits of the earth shall come to maturity at whatever season we think fit to choose, and increase a hundred fold more than they do at present; with innumerable other happy proposals. The only inconvenience is, that none of these projects are yet brought to perfection; and in the mean time, the whole country lies miserably waste, the houses in ruins, and the people without food or clothes. By all which, instead of being discouraged, they are fifty times more violently bent upon prosecuting their schemes, driven equally on by hope and despair: that as for himself, being not of an enterprising spirit, he was content to go on in the old forms, to live in the houses his ancestors had built, and act as they did, in every part of life, without innovation: that some few other persons of quality and gentry had done the same, but were looked on with an eye of contempt and ill-will, as enemies to art, ignorant, and ill common-wealth's men, preferring their own ease and sloth before the general improvement of their country." + +His lordship added, "That he would not, by any further particulars, prevent the pleasure I should certainly take in viewing the grand academy, whither he was resolved I should go." He only desired me to observe a ruined building, upon the side of a mountain about three miles distant, of which he gave me this account: "That he had a very convenient mill within half a mile of his house, turned by a current from a large river, and sufficient for his own family, as well as a great number of his tenants; that about seven years ago, a club of those projectors came to him with proposals to destroy this mill, and build another on the side of that mountain, on the long ridge whereof a long canal must be cut, for a repository of water, to be conveyed up by pipes and engines to supply the mill, because the wind and air upon a height agitated the water, and thereby made it fitter for motion, and because the water, descending down a declivity, would turn the mill with half the current of a river whose course is more upon a level." He said, "that being then not very well with the court, and pressed by many of his friends, he complied with the proposal; and after employing a hundred men for two years, the work miscarried, the projectors went off, laying the blame entirely upon him, railing at him ever since, and putting others upon the same experiment, with equal assurance of success, as well as equal disappointment." + +In a few days we came back to town; and his excellency, considering the bad character he had in the academy, would not go with me himself, but recommended me to a friend of his, to bear me company thither. My lord was pleased to represent me as a great admirer of projects, and a person of much curiosity and easy belief; which, indeed, was not without truth; for I had myself been a sort of projector in my younger days. + +CHAPTER V. + +[The author permitted to see the grand academy of Lagado. The academy largely described. The arts wherein the professors employ themselves.] + +This academy is not an entire single building, but a continuation of several houses on both sides of a street, which growing waste, was purchased and applied to that use. + +I was received very kindly by the warden, and went for many days to the academy. Every room has in it one or more projectors; and I believe I could not be in fewer than five hundred rooms. + +The first man I saw was of a meagre aspect, with sooty hands and face, his hair and beard long, ragged, and singed in several places. His clothes, shirt, and skin, were all of the same colour. He has been eight years upon a project for extracting sunbeams out of cucumbers, which were to be put in phials hermetically sealed, and let out to warm the air in raw inclement summers. He told me, he did not doubt, that, in eight years more, he should be able to supply the governor's gardens with sunshine, at a reasonable rate: but he complained that his stock was low, and entreated me "to give him something as an encouragement to ingenuity, especially since this had been a very dear season for cucumbers." I made him a small present, for my lord had furnished me with money on purpose, because he knew their practice of begging from all who go to see them. + +I went into another chamber, but was ready to hasten back, being almost overcome with a horrible stink. My conductor pressed me forward, conjuring me in a whisper "to give no offence, which would be highly resented;" and therefore I durst not so much as stop my nose. The projector of this cell was the most ancient student of the academy; his face and beard were of a pale yellow; his hands and clothes daubed over with filth. When I was presented to him, he gave me a close embrace, a compliment I could well have excused. His employment, from his first coming into the academy, was an operation to reduce human excrement to its original food, by separating the several parts, removing the tincture which it receives from the gall, making the odour exhale, and scumming off the saliva. He had a weekly allowance, from the society, of a vessel filled with human ordure, about the bigness of a Bristol barrel. + +I saw another at work to calcine ice into gunpowder; who likewise showed me a treatise he had written concerning the malleability of fire, which he intended to publish. + +There was a most ingenious architect, who had contrived a new method for building houses, by beginning at the roof, and working downward to the foundation; which he justified to me, by the like practice of those two prudent insects, the bee and the spider. + +There was a man born blind, who had several apprentices in his own condition: their employment was to mix colours for painters, which their master taught them to distinguish by feeling and smelling. It was indeed my misfortune to find them at that time not very perfect in their lessons, and the professor himself happened to be generally mistaken. This artist is much encouraged and esteemed by the whole fraternity. + +In another apartment I was highly pleased with a projector who had found a device of ploughing the ground with hogs, to save the charges of ploughs, cattle, and labour. The method is this: in an acre of ground you bury, at six inches distance and eight deep, a quantity of acorns, dates, chestnuts, and other mast or vegetables, whereof these animals are fondest; then you drive six hundred or more of them into the field, where, in a few days, they will root up the whole ground in search of their food, and make it fit for sowing, at the same time manuring it with their dung: it is true, upon experiment, they found the charge and trouble very great, and they had little or no crop. However it is not doubted, that this invention may be capable of great improvement. + +I went into another room, where the walls and ceiling were all hung round with cobwebs, except a narrow passage for the artist to go in and out. At my entrance, he called aloud to me, "not to disturb his webs." He lamented "the fatal mistake the world had been so long in, of using silkworms, while we had such plenty of domestic insects who infinitely excelled the former, because they understood how to weave, as well as spin." And he proposed further, "that by employing spiders, the charge of dyeing silks should be wholly saved;" whereof I was fully convinced, when he showed me a vast number of flies most beautifully coloured, wherewith he fed his spiders, assuring us "that the webs would take a tincture from them; and as he had them of all hues, he hoped to fit everybody's fancy, as soon as he could find proper food for the flies, of certain gums, oils, and other glutinous matter, to give a strength and consistence to the threads." + +There was an astronomer, who had undertaken to place a sun-dial upon the great weathercock on the town-house, by adjusting the annual and diurnal motions of the earth and sun, so as to answer and coincide with all accidental turnings of the wind. + +I was complaining of a small fit of the colic, upon which my conductor led me into a room where a great physician resided, who was famous for curing that disease, by contrary operations from the same instrument. He had a large pair of bellows, with a long slender muzzle of ivory: this he conveyed eight inches up the anus, and drawing in the wind, he affirmed he could make the guts as lank as a dried bladder. But when the disease was more stubborn and violent, he let in the muzzle while the bellows were full of wind, which he discharged into the body of the patient; then withdrew the instrument to replenish it, clapping his thumb strongly against the orifice of then fundament; and this being repeated three or four times, the adventitious wind would rush out, bringing the noxious along with it, (like water put into a pump), and the patient recovered. I saw him try both experiments upon a dog, but could not discern any effect from the former. After the latter the animal was ready to burst, and made so violent a discharge as was very offensive to me and my companion. The dog died on the spot, and we left the doctor endeavouring to recover him, by the same operation. + +I visited many other apartments, but shall not trouble my reader with all the curiosities I observed, being studious of brevity. + +I had hitherto seen only one side of the academy, the other being appropriated to the advancers of speculative learning, of whom I shall say something, when I have mentioned one illustrious person more, who is called among them "the universal artist." He told us "he had been thirty years employing his thoughts for the improvement of human life." He had two large rooms full of wonderful curiosities, and fifty men at work. Some were condensing air into a dry tangible substance, by extracting the nitre, and letting the aqueous or fluid particles percolate; others softening marble, for pillows and pin-cushions; others petrifying the hoofs of a living horse, to preserve them from foundering. The artist himself was at that time busy upon two great designs; the first, to sow land with chaff, wherein he affirmed the true seminal virtue to be contained, as he demonstrated by several experiments, which I was not skilful enough to comprehend. The other was, by a certain composition of gums, minerals, and vegetables, outwardly applied, to prevent the growth of wool upon two young lambs; and he hoped, in a reasonable time to propagate the breed of naked sheep, all over the kingdom. + +We crossed a walk to the other part of the academy, where, as I have already said, the projectors in speculative learning resided. + +The first professor I saw, was in a very large room, with forty pupils about him. After salutation, observing me to look earnestly upon a frame, which took up the greatest part of both the length and breadth of the room, he said, "Perhaps I might wonder to see him employed in a project for improving speculative knowledge, by practical and mechanical operations. But the world would soon be sensible of its usefulness; and he flattered himself, that a more noble, exalted thought never sprang in any other man's head. Every one knew how laborious the usual method is of attaining to arts and sciences; whereas, by his contrivance, the most ignorant person, at a reasonable charge, and with a little bodily labour, might write books in philosophy, poetry, politics, laws, mathematics, and theology, without the least assistance from genius or study." He then led me to the frame, about the sides, whereof all his pupils stood in ranks. It was twenty feet square, placed in the middle of the room. The superfices was composed of several bits of wood, about the bigness of a die, but some larger than others. They were all linked together by slender wires. These bits of wood were covered, on every square, with paper pasted on them; and on these papers were written all the words of their language, in their several moods, tenses, and declensions; but without any order. The professor then desired me "to observe; for he was going to set his engine at work." The pupils, at his command, took each of them hold of an iron handle, whereof there were forty fixed round the edges of the frame; and giving them a sudden turn, the whole disposition of the words was entirely changed. He then commanded six-and-thirty of the lads, to read the several lines softly, as they appeared upon the frame; and where they found three or four words together that might make part of a sentence, they dictated to the four remaining boys, who were scribes. This work was repeated three or four times, and at every turn, the engine was so contrived, that the words shifted into new places, as the square bits of wood moved upside down. + +Six hours a day the young students were employed in this labour; and the professor showed me several volumes in large folio, already collected, of broken sentences, which he intended to piece together, and out of those rich materials, to give the world a complete body of all arts and sciences; which, however, might be still improved, and much expedited, if the public would raise a fund for making and employing five hundred such frames in Lagado, and oblige the managers to contribute in common their several collections. + +He assured me "that this invention had employed all his thoughts from his youth; that he had emptied the whole vocabulary into his frame, and made the strictest computation of the general proportion there is in books between the numbers of particles, nouns, and verbs, and other parts of speech." + +I made my humblest acknowledgment to this illustrious person, for his great communicativeness; and promised, "if ever I had the good fortune to return to my native country, that I would do him justice, as the sole inventor of this wonderful machine;" the form and contrivance of which I desired leave to delineate on paper, as in the figure here annexed. I told him, "although it were the custom of our learned in Europe to steal inventions from each other, who had thereby at least this advantage, that it became a controversy which was the right owner; yet I would take such caution, that he should have the honour entire, without a rival." + +We next went to the school of languages, where three professors sat in consultation upon improving that of their own country. + +The first project was, to shorten discourse, by cutting polysyllables into one, and leaving out verbs and participles, because, in reality, all things imaginable are but norms. + +The other project was, a scheme for entirely abolishing all words whatsoever; and this was urged as a great advantage in point of health, as well as brevity. For it is plain, that every word we speak is, in some degree, a diminution of our lunge by corrosion, and, consequently, contributes to the shortening of our lives. An expedient was therefore offered, "that since words are only names for things, it would be more convenient for all men to carry about them such things as were necessary to express a particular business they are to discourse on." And this invention would certainly have taken place, to the great ease as well as health of the subject, if the women, in conjunction with the vulgar and illiterate, had not threatened to raise a rebellion unless they might be allowed the liberty to speak with their tongues, after the manner of their forefathers; such constant irreconcilable enemies to science are the common people. However, many of the most learned and wise adhere to the new scheme of expressing themselves by things; which has only this inconvenience attending it, that if a man's business be very great, and of various kinds, he must be obliged, in proportion, to carry a greater bundle of things upon his back, unless he can afford one or two strong servants to attend him. I have often beheld two of those sages almost sinking under the weight of their packs, like pedlars among us, who, when they met in the street, would lay down their loads, open their sacks, and hold conversation for an hour together; then put up their implements, help each other to resume their burdens, and take their leave. + +But for short conversations, a man may carry implements in his pockets, and under his arms, enough to supply him; and in his house, he cannot be at a loss. Therefore the room where company meet who practise this art, is full of all things, ready at hand, requisite to furnish matter for this kind of artificial converse. + +Another great advantage proposed by this invention was, that it would serve as a universal language, to be understood in all civilised nations, whose goods and utensils are generally of the same kind, or nearly resembling, so that their uses might easily be comprehended. And thus ambassadors would be qualified to treat with foreign princes, or ministers of state, to whose tongues they were utter strangers. + +I was at the mathematical school, where the master taught his pupils after a method scarce imaginable to us in Europe. The proposition, and demonstration, were fairly written on a thin wafer, with ink composed of a cephalic tincture. This, the student was to swallow upon a fasting stomach, and for three days following, eat nothing but bread and water. As the wafer digested, the tincture mounted to his brain, bearing the proposition along with it. But the success has not hitherto been answerable, partly by some error in the quantum or composition, and partly by the perverseness of lads, to whom this bolus is so nauseous, that they generally steal aside, and discharge it upwards, before it can operate; neither have they been yet persuaded to use so long an abstinence, as the prescription requires. + +CHAPTER VI. + +[A further account of the academy. The author proposes some improvements, which are honourably received.] + +In the school of political projectors, I was but ill entertained; the professors appearing, in my judgment, wholly out of their senses, which is a scene that never fails to make me melancholy. These unhappy people were proposing schemes for persuading monarchs to choose favourites upon the score of their wisdom, capacity, and virtue; of teaching ministers to consult the public good; of rewarding merit, great abilities, eminent services; of instructing princes to know their true interest, by placing it on the same foundation with that of their people; of choosing for employments persons qualified to exercise them, with many other wild, impossible chimeras, that never entered before into the heart of man to conceive; and confirmed in me the old observation, "that there is nothing so extravagant and irrational, which some philosophers have not maintained for truth." + +But, however, I shall so far do justice to this part of the Academy, as to acknowledge that all of them were not so visionary. There was a most ingenious doctor, who seemed to be perfectly versed in the whole nature and system of government. This illustrious person had very usefully employed his studies, in finding out effectual remedies for all diseases and corruptions to which the several kinds of public administration are subject, by the vices or infirmities of those who govern, as well as by the licentiousness of those who are to obey. For instance: whereas all writers and reasoners have agreed, that there is a strict universal resemblance between the natural and the political body; can there be any thing more evident, than that the health of both must be preserved, and the diseases cured, by the same prescriptions? It is allowed, that senates and great councils are often troubled with redundant, ebullient, and other peccant humours; with many diseases of the head, and more of the heart; with strong convulsions, with grievous contractions of the nerves and sinews in both hands, but especially the right; with spleen, flatus, vertigos, and deliriums; with scrofulous tumours, full of fetid purulent matter; with sour frothy ructations: with canine appetites, and crudeness of digestion, besides many others, needless to mention. This doctor therefore proposed, "that upon the meeting of the senate, certain physicians should attend it the three first days of their sitting, and at the close of each day's debate feel the pulses of every senator; after which, having maturely considered and consulted upon the nature of the several maladies, and the methods of cure, they should on the fourth day return to the senate house, attended by their apothecaries stored with proper medicines; and before the members sat, administer to each of them lenitives, aperitives, abstersives, corrosives, restringents, palliatives, laxatives, cephalalgics, icterics, apophlegmatics, acoustics, as their several cases required; and, according as these medicines should operate, repeat, alter, or omit them, at the next meeting." + +This project could not be of any great expense to the public; and might in my poor opinion, be of much use for the despatch of business, in those countries where senates have any share in the legislative power; beget unanimity, shorten debates, open a few mouths which are now closed, and close many more which are now open; curb the petulancy of the young, and correct the positiveness of the old; rouse the stupid, and damp the pert. + +Again: because it is a general complaint, that the favourites of princes are troubled with short and weak memories; the same doctor proposed, "that whoever attended a first minister, after having told his business, with the utmost brevity and in the plainest words, should, at his departure, give the said minister a tweak by the nose, or a kick in the belly, or tread on his corns, or lug him thrice by both ears, or run a pin into his breech; or pinch his arm black and blue, to prevent forgetfulness; and at every levee day, repeat the same operation, till the business were done, or absolutely refused." + +He likewise directed, "that every senator in the great council of a nation, after he had delivered his opinion, and argued in the defence of it, should be obliged to give his vote directly contrary; because if that were done, the result would infallibly terminate in the good of the public." + +When parties in a state are violent, he offered a wonderful contrivance to reconcile them. The method is this: You take a hundred leaders of each party; you dispose them into couples of such whose heads are nearest of a size; then let two nice operators saw off the occiput of each couple at the same time, in such a manner that the brain may be equally divided. Let the occiputs, thus cut off, be interchanged, applying each to the head of his opposite party-man. It seems indeed to be a work that requires some exactness, but the professor assured us, "that if it were dexterously performed, the cure would be infallible." For he argued thus: "that the two half brains being left to debate the matter between themselves within the space of one skull, would soon come to a good understanding, and produce that moderation, as well as regularity of thinking, so much to be wished for in the heads of those, who imagine they come into the world only to watch and govern its motion: and as to the difference of brains, in quantity or quality, among those who are directors in faction, the doctor assured us, from his own knowledge, that "it was a perfect trifle." + +I heard a very warm debate between two professors, about the most commodious and effectual ways and means of raising money, without grieving the subject. The first affirmed, "the justest method would be, to lay a certain tax upon vices and folly; and the sum fixed upon every man to be rated, after the fairest manner, by a jury of his neighbours." The second was of an opinion directly contrary; "to tax those qualities of body and mind, for which men chiefly value themselves; the rate to be more or less, according to the degrees of excelling; the decision whereof should be left entirely to their own breast." The highest tax was upon men who are the greatest favourites of the other sex, and the assessments, according to the number and nature of the favours they have received; for which, they are allowed to be their own vouchers. Wit, valour, and politeness, were likewise proposed to be largely taxed, and collected in the same manner, by every person's giving his own word for the quantum of what he possessed. But as to honour, justice, wisdom, and learning, they should not be taxed at all; because they are qualifications of so singular a kind, that no man will either allow them in his neighbour or value them in himself. + +The women were proposed to be taxed according to their beauty and skill in dressing, wherein they had the same privilege with the men, to be determined by their own judgment. But constancy, chastity, good sense, and good nature, were not rated, because they would not bear the charge of collecting. + +To keep senators in the interest of the crown, it was proposed that the members should raffle for employment; every man first taking an oath, and giving security, that he would vote for the court, whether he won or not; after which, the losers had, in their turn, the liberty of raffling upon the next vacancy. Thus, hope and expectation would be kept alive; none would complain of broken promises, but impute their disappointments wholly to fortune, whose shoulders are broader and stronger than those of a ministry. + +Another professor showed me a large paper of instructions for discovering plots and conspiracies against the government. He advised great statesmen to examine into the diet of all suspected persons; their times of eating; upon which side they lay in bed; with which hand they wipe their posteriors; take a strict view of their excrements, and, from the colour, the odour, the taste, the consistence, the crudeness or maturity of digestion, form a judgment of their thoughts and designs; because men are never so serious, thoughtful, and intent, as when they are at stool, which he found by frequent experiment; for, in such conjunctures, when he used, merely as a trial, to consider which was the best way of murdering the king, his ordure would have a tincture of green; but quite different, when he thought only of raising an insurrection, or burning the metropolis. + +The whole discourse was written with great acuteness, containing many observations, both curious and useful for politicians; but, as I conceived, not altogether complete. This I ventured to tell the author, and offered, if he pleased, to supply him with some additions. He received my proposition with more compliance than is usual among writers, especially those of the projecting species, professing "he would be glad to receive further information." + +I told him, "that in the kingdom of Tribnia,~^ by the natives called Langdon,~^ where I had sojourned some time in my travels, the bulk of the people consist in a manner wholly of discoverers, witnesses, informers, accusers, prosecutors, evidences, swearers, together with their several subservient and subaltern instruments, all under the colours, the conduct, and the pay of ministers of state, and their deputies. The plots, in that kingdom, are usually the workmanship of those persons who desire to raise their own characters of profound politicians; to restore new vigour to a crazy administration; to stifle or divert general discontents; to fill their coffers with forfeitures; and raise, or sink the opinion of public credit, as either shall best answer their private advantage. It is first agreed and settled among them, what suspected persons shall be accused of a plot; then, effectual care is taken to secure all their letters and papers, and put the owners in chains. These papers are delivered to a set of artists, very dexterous in finding out the mysterious meanings of words, syllables, and letters: for instance, they can discover a close stool, to signify a privy council; a flock of geese, a senate; a lame dog, an invader; the plague, a standing army; a buzzard, a prime minister; the gout, a high priest; a gibbet, a secretary of state; a chamber pot, a committee of grandees; a sieve, a court lady; a broom, a revolution; a mouse-trap, an employment; a bottomless pit, a treasury; a sink, a court; a cap and bells, a favourite; a broken reed, a court of justice; an empty tun, a general; a running sore, the administration.~^ + +"When this method fails, they have two others more effectual, which the learned among them call acrostics and anagrams. First, they can decipher all initial letters into political meanings. Thus N, shall signify a plot; B, a regiment of horse; L, a fleet at sea; or, secondly, by transposing the letters of the alphabet in any suspected paper, they can lay open the deepest designs of a discontented party. So, for example, if I should say, in a letter to a friend, 'Our brother Tom has just got the piles,' a skilful decipherer would discover, that the same letters which compose that sentence, may be analysed into the following words, 'Resist -, a plot is brought home--The tour.' And this is the anagrammatic method." + +The professor made me great acknowledgments for communicating these observations, and promised to make honourable mention of me in his treatise. + +I saw nothing in this country that could invite me to a longer continuance, and began to think of returning home to England. + +CHAPTER VII. + +[The author leaves Lagado: arrives at Maldonada. No ship ready. He takes a short voyage to Glubbdubdrib. His reception by the governor.] + +The continent, of which this kingdom is apart, extends itself, as I have reason to believe, eastward, to that unknown tract of America westward of California; and north, to the Pacific Ocean, which is not above a hundred and fifty miles from Lagado; where there is a good port, and much commerce with the great island of Luggnagg, situated to the north-west about 29 degrees north latitude, and 140 longitude. This island of Luggnagg stands south-eastward of Japan, about a hundred leagues distant. There is a strict alliance between the Japanese emperor and the king of Luggnagg; which affords frequent opportunities of sailing from one island to the other. I determined therefore to direct my course this way, in order to my return to Europe. I hired two mules, with a guide, to show me the way, and carry my small baggage. I took leave of my noble protector, who had shown me so much favour, and made me a generous present at my departure. + +My journey was without any accident or adventure worth relating. When I arrived at the port of Maldonada (for so it is called) there was no ship in the harbour bound for Luggnagg, nor likely to be in some time. The town is about as large as Portsmouth. I soon fell into some acquaintance, and was very hospitably received. A gentleman of distinction said to me, "that since the ships bound for Luggnagg could not be ready in less than a month, it might be no disagreeable amusement for me to take a trip to the little island of Glubbdubdrib, about five leagues off to the south-west." He offered himself and a friend to accompany me, and that I should be provided with a small convenient bark for the voyage. + +Glubbdubdrib, as nearly as I can interpret the word, signifies the island of sorcerers or magicians. It is about one third as large as the Isle of Wight, and extremely fruitful: it is governed by the head of a certain tribe, who are all magicians. This tribe marries only among each other, and the eldest in succession is prince or governor. He has a noble palace, and a park of about three thousand acres, surrounded by a wall of hewn stone twenty feet high. In this park are several small enclosures for cattle, corn, and gardening. + +The governor and his family are served and attended by domestics of a kind somewhat unusual. By his skill in necromancy he has a power of calling whom he pleases from the dead, and commanding their service for twenty-four hours, but no longer; nor can he call the same persons up again in less than three months, except upon very extraordinary occasions. + +When we arrived at the island, which was about eleven in the morning, one of the gentlemen who accompanied me went to the governor, and desired admittance for a stranger, who came on purpose to have the honour of attending on his highness. This was immediately granted, and we all three entered the gate of the palace between two rows of guards, armed and dressed after a very antic manner, and with something in their countenances that made my flesh creep with a horror I cannot express. We passed through several apartments, between servants of the same sort, ranked on each side as before, till we came to the chamber of presence; where, after three profound obeisances, and a few general questions, we were permitted to sit on three stools, near the lowest step of his highness's throne. He understood the language of Balnibarbi, although it was different from that of this island. He desired me to give him some account of my travels; and, to let me see that I should be treated without ceremony, he dismissed all his attendants with a turn of his finger; at which, to my great astonishment, they vanished in an instant, like visions in a dream when we awake on a sudden. I could not recover myself in some time, till the governor assured me, "that I should receive no hurt:" and observing my two companions to be under no concern, who had been often entertained in the same manner, I began to take courage, and related to his highness a short history of my several adventures; yet not without some hesitation, and frequently looking behind me to the place where I had seen those domestic spectres. I had the honour to dine with the governor, where a new set of ghosts served up the meat, and waited at table. I now observed myself to be less terrified than I had been in the morning. I stayed till sunset, but humbly desired his highness to excuse me for not accepting his invitation of lodging in the palace. My two friends and I lay at a private house in the town adjoining, which is the capital of this little island; and the next morning we returned to pay our duty to the governor, as he was pleased to command us. + +After this manner we continued in the island for ten days, most part of every day with the governor, and at night in our lodging. I soon grew so familiarized to the sight of spirits, that after the third or fourth time they gave me no emotion at all: or, if I had any apprehensions left, my curiosity prevailed over them. For his highness the governor ordered me "to call up whatever persons I would choose to name, and in whatever numbers, among all the dead from the beginning of the world to the present time, and command them to answer any questions I should think fit to ask; with this condition, that my questions must be confined within the compass of the times they lived in. And one thing I might depend upon, that they would certainly tell me the truth, for lying was a talent of no use in the lower world." + +I made my humble acknowledgments to his highness for so great a favour. We were in a chamber, from whence there was a fair prospect into the park. And because my first inclination was to be entertained with scenes of pomp and magnificence, I desired to see Alexander the Great at the head of his army, just after the battle of Arbela: which, upon a motion of the governor's finger, immediately appeared in a large field, under the window where we stood. Alexander was called up into the room: it was with great difficulty that I understood his Greek, and had but little of my own. He assured me upon his honour "that he was not poisoned, but died of a bad fever by excessive drinking." + +Next, I saw Hannibal passing the Alps, who told me "he had not a drop of vinegar in his camp." + +I saw Caesar and Pompey at the head of their troops, just ready to engage. I saw the former, in his last great triumph. I desired that the senate of Rome might appear before me, in one large chamber, and an assembly of somewhat a later age in counterview, in another. The first seemed to be an assembly of heroes and demigods; the other, a knot of pedlars, pick-pockets, highwayman, and bullies. + +The governor, at my request, gave the sign for Caesar and Brutus to advance towards us. I was struck with a profound veneration at the sight of Brutus, and could easily discover the most consummate virtue, the greatest intrepidity and firmness of mind, the truest love of his country, and general benevolence for mankind, in every lineament of his countenance. I observed, with much pleasure, that these two persons were in good intelligence with each other; and Caesar freely confessed to me, "that the greatest actions of his own life were not equal, by many degrees, to the glory of taking it away." I had the honour to have much conversation with Brutus; and was told, "that his ancestor Junius, Socrates, Epaminondas, Cato the younger, Sir Thomas More, and himself were perpetually together:" a sextumvirate, to which all the ages of the world cannot add a seventh. + +It would be tedious to trouble the reader with relating what vast numbers of illustrious persons were called up to gratify that insatiable desire I had to see the world in every period of antiquity placed before me. I chiefly fed mine eyes with beholding the destroyers of tyrants and usurpers, and the restorers of liberty to oppressed and injured nations. But it is impossible to express the satisfaction I received in my own mind, after such a manner as to make it a suitable entertainment to the reader. + +CHAPTER VIII. + +[A further account of Glubbdubdrib. Ancient and modern history corrected.] + +Having a desire to see those ancients who were most renowned for wit and learning, I set apart one day on purpose. I proposed that Homer and Aristotle might appear at the head of all their commentators; but these were so numerous, that some hundreds were forced to attend in the court, and outward rooms of the palace. I knew, and could distinguish those two heroes, at first sight, not only from the crowd, but from each other. Homer was the taller and comelier person of the two, walked very erect for one of his age, and his eyes were the most quick and piercing I ever beheld. Aristotle stooped much, and made use of a staff. His visage was meagre, his hair lank and thin, and his voice hollow. I soon discovered that both of them were perfect strangers to the rest of the company, and had never seen or heard of them before; and I had a whisper from a ghost who shall be nameless, "that these commentators always kept in the most distant quarters from their principals, in the lower world, through a consciousness of shame and guilt, because they had so horribly misrepresented the meaning of those authors to posterity." I introduced Didymus and Eustathius to Homer, and prevailed on him to treat them better than perhaps they deserved, for he soon found they wanted a genius to enter into the spirit of a poet. But Aristotle was out of all patience with the account I gave him of Scotus and Ramus, as I presented them to him; and he asked them, "whether the rest of the tribe were as great dunces as themselves?" + +I then desired the governor to call up Descartes and Gassendi, with whom I prevailed to explain their systems to Aristotle. This great philosopher freely acknowledged his own mistakes in natural philosophy, because he proceeded in many things upon conjecture, as all men must do; and he found that Gassendi, who had made the doctrine of Epicurus as palatable as he could, and the vortices of Descartes, were equally to be exploded. He predicted the same fate to ATTRACTION, whereof the present learned are such zealous asserters. He said, "that new systems of nature were but new fashions, which would vary in every age; and even those, who pretend to demonstrate them from mathematical principles, would flourish but a short period of time, and be out of vogue when that was determined." + +I spent five days in conversing with many others of the ancient learned. I saw most of the first Roman emperors. I prevailed on the governor to call up Heliogabalus's cooks to dress us a dinner, but they could not show us much of their skill, for want of materials. A helot of Agesilaus made us a dish of Spartan broth, but I was not able to get down a second spoonful. + +The two gentlemen, who conducted me to the island, were pressed by their private affairs to return in three days, which I employed in seeing some of the modern dead, who had made the greatest figure, for two or three hundred years past, in our own and other countries of Europe; and having been always a great admirer of old illustrious families, I desired the governor would call up a dozen or two of kings, with their ancestors in order for eight or nine generations. But my disappointment was grievous and unexpected. For, instead of a long train with royal diadems, I saw in one family two fiddlers, three spruce courtiers, and an Italian prelate. In another, a barber, an abbot, and two cardinals. I have too great a veneration for crowned heads, to dwell any longer on so nice a subject. But as to counts, marquises, dukes, earls, and the like, I was not so scrupulous. And I confess, it was not without some pleasure, that I found myself able to trace the particular features, by which certain families are distinguished, up to their originals. I could plainly discover whence one family derives a long chin; why a second has abounded with knaves for two generations, and fools for two more; why a third happened to be crack-brained, and a fourth to be sharpers; whence it came, what Polydore Virgil says of a certain great house, Nec vir fortis, nec foemina casta; how cruelty, falsehood, and cowardice, grew to be characteristics by which certain families are distinguished as much as by their coats of arms; who first brought the pox into a noble house, which has lineally descended scrofulous tumours to their posterity. Neither could I wonder at all this, when I saw such an interruption of lineages, by pages, lackeys, valets, coachmen, gamesters, fiddlers, players, captains, and pickpockets. + +I was chiefly disgusted with modern history. For having strictly examined all the persons of greatest name in the courts of princes, for a hundred years past, I found how the world had been misled by prostitute writers, to ascribe the greatest exploits in war, to cowards; the wisest counsel, to fools; sincerity, to flatterers; Roman virtue, to betrayers of their country; piety, to atheists; chastity, to sodomites; truth, to informers: how many innocent and excellent persons had been condemned to death or banishment by the practising of great ministers upon the corruption of judges, and the malice of factions: how many villains had been exalted to the highest places of trust, power, dignity, and profit: how great a share in the motions and events of courts, councils, and senates might be challenged by bawds, whores, pimps, parasites, and buffoons. How low an opinion I had of human wisdom and integrity, when I was truly informed of the springs and motives of great enterprises and revolutions in the world, and of the contemptible accidents to which they owed their success. + +Here I discovered the roguery and ignorance of those who pretend to write anecdotes, or secret history; who send so many kings to their graves with a cup of poison; will repeat the discourse between a prince and chief minister, where no witness was by; unlock the thoughts and cabinets of ambassadors and secretaries of state; and have the perpetual misfortune to be mistaken. Here I discovered the true causes of many great events that have surprised the world; how a whore can govern the back-stairs, the back-stairs a council, and the council a senate. A general confessed, in my presence, "that he got a victory purely by the force of cowardice and ill conduct;" and an admiral, "that, for want of proper intelligence, he beat the enemy, to whom he intended to betray the fleet." Three kings protested to me, "that in their whole reigns they never did once prefer any person of merit, unless by mistake, or treachery of some minister in whom they confided; neither would they do it if they were to live again:" and they showed, with great strength of reason, "that the royal throne could not be supported without corruption, because that positive, confident, restiff temper, which virtue infused into a man, was a perpetual clog to public business." + +I had the curiosity to inquire in a particular manner, by what methods great numbers had procured to themselves high titles of honour, and prodigious estates; and I confined my inquiry to a very modern period: however, without grating upon present times, because I would be sure to give no offence even to foreigners (for I hope the reader need not be told, that I do not in the least intend my own country, in what I say upon this occasion,) a great number of persons concerned were called up; and, upon a very slight examination, discovered such a scene of infamy, that I cannot reflect upon it without some seriousness. Perjury, oppression, subornation, fraud, pandarism, and the like infirmities, were among the most excusable arts they had to mention; and for these I gave, as it was reasonable, great allowance. But when some confessed they owed their greatness and wealth to sodomy, or incest; others, to the prostituting of their own wives and daughters; others, to the betraying of their country or their prince; some, to poisoning; more to the perverting of justice, in order to destroy the innocent, I hope I may be pardoned, if these discoveries inclined me a little to abate of that profound veneration, which I am naturally apt to pay to persons of high rank, who ought to be treated with the utmost respect due to their sublime dignity, by us their inferiors. + +I had often read of some great services done to princes and states, and desired to see the persons by whom those services were performed. Upon inquiry I was told, "that their names were to be found on no record, except a few of them, whom history has represented as the vilest of rogues and traitors." As to the rest, I had never once heard of them. They all appeared with dejected looks, and in the meanest habit; most of them telling me, "they died in poverty and disgrace, and the rest on a scaffold or a gibbet." + +Among others, there was one person, whose case appeared a little singular. He had a youth about eighteen years old standing by his side. He told me, "he had for many years been commander of a ship; and in the sea fight at Actium had the good fortune to break through the enemy's great line of battle, sink three of their capital ships, and take a fourth, which was the sole cause of Antony's flight, and of the victory that ensued; that the youth standing by him, his only son, was killed in the action." He added, "that upon the confidence of some merit, the war being at an end, he went to Rome, and solicited at the court of Augustus to be preferred to a greater ship, whose commander had been killed; but, without any regard to his pretensions, it was given to a boy who had never seen the sea, the son of Libertina, who waited on one of the emperor's mistresses. Returning back to his own vessel, he was charged with neglect of duty, and the ship given to a favourite page of Publicola, the vice-admiral; whereupon he retired to a poor farm at a great distance from Rome, and there ended his life." I was so curious to know the truth of this story, that I desired Agrippa might be called, who was admiral in that fight. He appeared, and confirmed the whole account: but with much more advantage to the captain, whose modesty had extenuated or concealed a great part of his merit. + +I was surprised to find corruption grown so high and so quick in that empire, by the force of luxury so lately introduced; which made me less wonder at many parallel cases in other countries, where vices of all kinds have reigned so much longer, and where the whole praise, as well as pillage, has been engrossed by the chief commander, who perhaps had the least title to either. + +As every person called up made exactly the same appearance he had done in the world, it gave me melancholy reflections to observe how much the race of human kind was degenerated among us within these hundred years past; how the pox, under all its consequences and denominations had altered every lineament of an English countenance; shortened the size of bodies, unbraced the nerves, relaxed the sinews and muscles, introduced a sallow complexion, and rendered the flesh loose and rancid. + +I descended so low, as to desire some English yeoman of the old stamp might be summoned to appear; once so famous for the simplicity of their manners, diet, and dress; for justice in their dealings; for their true spirit of liberty; for their valour, and love of their country. Neither could I be wholly unmoved, after comparing the living with the dead, when I considered how all these pure native virtues were prostituted for a piece of money by their grand-children; who, in selling their votes and managing at elections, have acquired every vice and corruption that can possibly be learned in a court. + +CHAPTER IX. + +[The author returns to Maldonada. Sails to the kingdom of Luggnagg. The author confined. He is sent for to court. The manner of his admittance. The king's great lenity to his subjects.] + +The day of our departure being come, I took leave of his highness, the Governor of Glubbdubdrib, and returned with my two companions to Maldonada, where, after a fortnight's waiting, a ship was ready to sail for Luggnagg. The two gentlemen, and some others, were so generous and kind as to furnish me with provisions, and see me on board. I was a month in this voyage. We had one violent storm, and were under a necessity of steering westward to get into the trade wind, which holds for above sixty leagues. On the 21st of April, 1708, we sailed into the river of Clumegnig, which is a seaport town, at the south-east point of Luggnagg. We cast anchor within a league of the town, and made a signal for a pilot. Two of them came on board in less than half an hour, by whom we were guided between certain shoals and rocks, which are very dangerous in the passage, to a large basin, where a fleet may ride in safety within a cable's length of the town-wall. + +Some of our sailors, whether out of treachery or inadvertence, had informed the pilots "that I was a stranger, and great traveller;" whereof these gave notice to a custom-house officer, by whom I was examined very strictly upon my landing. This officer spoke to me in the language of Balnibarbi, which, by the force of much commerce, is generally understood in that town, especially by seamen and those employed in the customs. I gave him a short account of some particulars, and made my story as plausible and consistent as I could; but I thought it necessary to disguise my country, and call myself a Hollander; because my intentions were for Japan, and I knew the Dutch were the only Europeans permitted to enter into that kingdom. I therefore told the officer, "that having been shipwrecked on the coast of Balnibarbi, and cast on a rock, I was received up into Laputa, or the flying island (of which he had often heard), and was now endeavouring to get to Japan, whence I might find a convenience of returning to my own country." The officer said, "I must be confined till he could receive orders from court, for which he would write immediately, and hoped to receive an answer in a fortnight." I was carried to a convenient lodging with a sentry placed at the door; however, I had the liberty of a large garden, and was treated with humanity enough, being maintained all the time at the king's charge. I was invited by several persons, chiefly out of curiosity, because it was reported that I came from countries very remote, of which they had never heard. + +I hired a young man, who came in the same ship, to be an interpreter; he was a native of Luggnagg, but had lived some years at Maldonada, and was a perfect master of both languages. By his assistance, I was able to hold a conversation with those who came to visit me; but this consisted only of their questions, and my answers. + +The despatch came from court about the time we expected. It contained a warrant for conducting me and my retinue to Traldragdubh, or Trildrogdrib (for it is pronounced both ways as near as I can remember), by a party of ten horse. All my retinue was that poor lad for an interpreter, whom I persuaded into my service, and, at my humble request, we had each of us a mule to ride on. A messenger was despatched half a day's journey before us, to give the king notice of my approach, and to desire, "that his majesty would please to appoint a day and hour, when it would by his gracious pleasure that I might have the honour to lick the dust before his footstool." This is the court style, and I found it to be more than matter of form: for, upon my admittance two days after my arrival, I was commanded to crawl upon my belly, and lick the floor as I advanced; but, on account of my being a stranger, care was taken to have it made so clean, that the dust was not offensive. However, this was a peculiar grace, not allowed to any but persons of the highest rank, when they desire an admittance. Nay, sometimes the floor is strewed with dust on purpose, when the person to be admitted happens to have powerful enemies at court; and I have seen a great lord with his mouth so crammed, that when he had crept to the proper distance from the throne; he was not able to speak a word. Neither is there any remedy; because it is capital for those, who receive an audience to spit or wipe their mouths in his majesty's presence. There is indeed another custom, which I cannot altogether approve of: when the king has a mind to put any of his nobles to death in a gentle indulgent manner, he commands the floor to be strewed with a certain brown powder of a deadly composition, which being licked up, infallibly kills him in twenty-four hours. But in justice to this prince's great clemency, and the care he has of his subjects' lives (wherein it were much to be wished that the Monarchs of Europe would imitate him), it must be mentioned for his honour, that strict orders are given to have the infected parts of the floor well washed after every such execution, which, if his domestics neglect, they are in danger of incurring his royal displeasure. I myself heard him give directions, that one of his pages should be whipped, whose turn it was to give notice about washing the floor after an execution, but maliciously had omitted it; by which neglect a young lord of great hopes, coming to an audience, was unfortunately poisoned, although the king at that time had no design against his life. But this good prince was so gracious as to forgive the poor page his whipping, upon promise that he would do so no more, without special orders. + +To return from this digression. When I had crept within four yards of the throne, I raised myself gently upon my knees, and then striking my forehead seven times against the ground, I pronounced the following words, as they had been taught me the night before, Inckpling gloffthrobb squut serummblhiop mlashnalt zwin tnodbalkuffh slhiophad gurdlubh asht. This is the compliment, established by the laws of the land, for all persons admitted to the king's presence. It may be rendered into English thus: "May your celestial majesty outlive the sun, eleven moons and a half!" To this the king returned some answer, which, although I could not understand, yet I replied as I had been directed: Fluft drin yalerick dwuldom prastrad mirpush, which properly signifies, "My tongue is in the mouth of my friend;" and by this expression was meant, that I desired leave to bring my interpreter; whereupon the young man already mentioned was accordingly introduced, by whose intervention I answered as many questions as his majesty could put in above an hour. I spoke in the Balnibarbian tongue, and my interpreter delivered my meaning in that of Luggnagg. + +The king was much delighted with my company, and ordered his bliffmarklub, or high-chamberlain, to appoint a lodging in the court for me and my interpreter; with a daily allowance for my table, and a large purse of gold for my common expenses. + +I staid three months in this country, out of perfect obedience to his majesty; who was pleased highly to favour me, and made me very honourable offers. But I thought it more consistent with prudence and justice to pass the remainder of my days with my wife and family. + +CHAPTER X. + +[The Luggnaggians commended. A particular description of the Struldbrugs, with many conversations between the author and some eminent persons upon that subject.] + +The Luggnaggians are a polite and generous people; and although they are not without some share of that pride which is peculiar to all Eastern countries, yet they show themselves courteous to strangers, especially such who are countenanced by the court. I had many acquaintance, and among persons of the best fashion; and being always attended by my interpreter, the conversation we had was not disagreeable. + +One day, in much good company, I was asked by a person of quality, "whether I had seen any of their struldbrugs, or immortals?" I said, "I had not;" and desired he would explain to me "what he meant by such an appellation, applied to a mortal creature." He told me "that sometimes, though very rarely, a child happened to be born in a family, with a red circular spot in the forehead, directly over the left eyebrow, which was an infallible mark that it should never die." The spot, as he described it, "was about the compass of a silver threepence, but in the course of time grew larger, and changed its colour; for at twelve years old it became green, so continued till five and twenty, then turned to a deep blue: at five and forty it grew coal black, and as large as an English shilling; but never admitted any further alteration." He said, "these births were so rare, that he did not believe there could be above eleven hundred struldbrugs, of both sexes, in the whole kingdom; of which he computed about fifty in the metropolis, and, among the rest, a young girl born; about three years ago: that these productions were not peculiar to any family, but a mere effect of chance; and the children of the struldbrugs themselves were equally mortal with the rest of the people." + +I freely own myself to have been struck with inexpressible delight, upon hearing this account: and the person who gave it me happening to understand the Balnibarbian language, which I spoke very well, I could not forbear breaking out into expressions, perhaps a little too extravagant. I cried out, as in a rapture, "Happy nation, where every child hath at least a chance for being immortal! Happy people, who enjoy so many living examples of ancient virtue, and have masters ready to instruct them in the wisdom of all former ages! but happiest, beyond all comparison, are those excellent struldbrugs, who, being born exempt from that universal calamity of human nature, have their minds free and disengaged, without the weight and depression of spirits caused by the continual apprehensions of death!" I discovered my admiration that I had not observed any of these illustrious persons at court; the black spot on the forehead being so remarkable a distinction, that I could not have easily overlooked it: and it was impossible that his majesty, a most judicious prince, should not provide himself with a good number of such wise and able counsellors. Yet perhaps the virtue of those reverend sages was too strict for the corrupt and libertine manners of a court: and we often find by experience, that young men are too opinionated and volatile to be guided by the sober dictates of their seniors. However, since the king was pleased to allow me access to his royal person, I was resolved, upon the very first occasion, to deliver my opinion to him on this matter freely and at large, by the help of my interpreter; and whether he would please to take my advice or not, yet in one thing I was determined, that his majesty having frequently offered me an establishment in this country, I would, with great thankfulness, accept the favour, and pass my life here in the conversation of those superior beings the struldbrugs, if they would please to admit me." + +The gentleman to whom I addressed my discourse, because (as I have already observed) he spoke the language of Balnibarbi, said to me, with a sort of a smile which usually arises from pity to the ignorant, "that he was glad of any occasion to keep me among them, and desired my permission to explain to the company what I had spoke." He did so, and they talked together for some time in their own language, whereof I understood not a syllable, neither could I observe by their countenances, what impression my discourse had made on them. After a short silence, the same person told me, "that his friends and mine (so he thought fit to express himself) were very much pleased with the judicious remarks I had made on the great happiness and advantages of immortal life, and they were desirous to know, in a particular manner, what scheme of living I should have formed to myself, if it had fallen to my lot to have been born a struldbrug." + +I answered, "it was easy to be eloquent on so copious and delightful a subject, especially to me, who had been often apt to amuse myself with visions of what I should do, if I were a king, a general, or a great lord: and upon this very case, I had frequently run over the whole system how I should employ myself, and pass the time, if I were sure to live for ever. + +"That, if it had been my good fortune to come into the world a struldbrug, as soon as I could discover my own happiness, by understanding the difference between life and death, I would first resolve, by all arts and methods, whatsoever, to procure myself riches. In the pursuit of which, by thrift and management, I might reasonably expect, in about two hundred years, to be the wealthiest man in the kingdom. In the second place, I would, from my earliest youth, apply myself to the study of arts and sciences, by which I should arrive in time to excel all others in learning. Lastly, I would carefully record every action and event of consequence, that happened in the public, impartially draw the characters of the several successions of princes and great ministers of state, with my own observations on every point. I would exactly set down the several changes in customs, language, fashions of dress, diet, and diversions. By all which acquirements, I should be a living treasure of knowledge and wisdom, and certainly become the oracle of the nation. + +"I would never marry after threescore, but live in a hospitable manner, yet still on the saving side. I would entertain myself in forming and directing the minds of hopeful young men, by convincing them, from my own remembrance, experience, and observation, fortified by numerous examples, of the usefulness of virtue in public and private life. But my choice and constant companions should be a set of my own immortal brotherhood; among whom, I would elect a dozen from the most ancient, down to my own contemporaries. Where any of these wanted fortunes, I would provide them with convenient lodges round my own estate, and have some of them always at my table; only mingling a few of the most valuable among you mortals, whom length of time would harden me to lose with little or no reluctance, and treat your posterity after the same manner; just as a man diverts himself with the annual succession of pinks and tulips in his garden, without regretting the loss of those which withered the preceding year. + +"These struldbrugs and I would mutually communicate our observations and memorials, through the course of time; remark the several gradations by which corruption steals into the world, and oppose it in every step, by giving perpetual warning and instruction to mankind; which, added to the strong influence of our own example, would probably prevent that continual degeneracy of human nature so justly complained of in all ages. + +"Add to this, the pleasure of seeing the various revolutions of states and empires; the changes in the lower and upper world; ancient cities in ruins, and obscure villages become the seats of kings; famous rivers lessening into shallow brooks; the ocean leaving one coast dry, and overwhelming another; the discovery of many countries yet unknown; barbarity overrunning the politest nations, and the most barbarous become civilized. I should then see the discovery of the longitude, the perpetual motion, the universal medicine, and many other great inventions, brought to the utmost perfection. + +"What wonderful discoveries should we make in astronomy, by outliving and confirming our own predictions; by observing the progress and return of comets, with the changes of motion in the sun, moon, and stars!" + +I enlarged upon many other topics, which the natural desire of endless life, and sublunary happiness, could easily furnish me with. When I had ended, and the sum of my discourse had been interpreted, as before, to the rest of the company, there was a good deal of talk among them in the language of the country, not without some laughter at my expense. At last, the same gentleman who had been my interpreter, said, "he was desired by the rest to set me right in a few mistakes, which I had fallen into through the common imbecility of human nature, and upon that allowance was less answerable for them. That this breed of struldbrugs was peculiar to their country, for there were no such people either in Balnibarbi or Japan, where he had the honour to be ambassador from his majesty, and found the natives in both those kingdoms very hard to believe that the fact was possible: and it appeared from my astonishment when he first mentioned the matter to me, that I received it as a thing wholly new, and scarcely to be credited. That in the two kingdoms above mentioned, where, during his residence, he had conversed very much, he observed long life to be the universal desire and wish of mankind. That whoever had one foot in the grave was sure to hold back the other as strongly as he could. That the oldest had still hopes of living one day longer, and looked on death as the greatest evil, from which nature always prompted him to retreat. Only in this island of Luggnagg the appetite for living was not so eager, from the continual example of the struldbrugs before their eyes. + +"That the system of living contrived by me, was unreasonable and unjust; because it supposed a perpetuity of youth, health, and vigour, which no man could be so foolish to hope, however extravagant he may be in his wishes. That the question therefore was not, whether a man would choose to be always in the prime of youth, attended with prosperity and health; but how he would pass a perpetual life under all the usual disadvantages which old age brings along with it. For although few men will avow their desires of being immortal, upon such hard conditions, yet in the two kingdoms before mentioned, of Balnibarbi and Japan, he observed that every man desired to put off death some time longer, let it approach ever so late: and he rarely heard of any man who died willingly, except he were incited by the extremity of grief or torture. And he appealed to me, whether in those countries I had travelled, as well as my own, I had not observed the same general disposition." + +After this preface, he gave me a particular account of the struldbrugs among them. He said, "they commonly acted like mortals till about thirty years old; after which, by degrees, they grew melancholy and dejected, increasing in both till they came to fourscore. This he learned from their own confession: for otherwise, there not being above two or three of that species born in an age, they were too few to form a general observation by. When they came to fourscore years, which is reckoned the extremity of living in this country, they had not only all the follies and infirmities of other old men, but many more which arose from the dreadful prospect of never dying. They were not only opinionative, peevish, covetous, morose, vain, talkative, but incapable of friendship, and dead to all natural affection, which never descended below their grandchildren. Envy and impotent desires are their prevailing passions. But those objects against which their envy seems principally directed, are the vices of the younger sort and the deaths of the old. By reflecting on the former, they find themselves cut off from all possibility of pleasure; and whenever they see a funeral, they lament and repine that others have gone to a harbour of rest to which they themselves never can hope to arrive. They have no remembrance of anything but what they learned and observed in their youth and middle-age, and even that is very imperfect; and for the truth or particulars of any fact, it is safer to depend on common tradition, than upon their best recollections. The least miserable among them appear to be those who turn to dotage, and entirely lose their memories; these meet with more pity and assistance, because they want many bad qualities which abound in others. + +"If a struldbrug happen to marry one of his own kind, the marriage is dissolved of course, by the courtesy of the kingdom, as soon as the younger of the two comes to be fourscore; for the law thinks it a reasonable indulgence, that those who are condemned, without any fault of their own, to a perpetual continuance in the world, should not have their misery doubled by the load of a wife. + +"As soon as they have completed the term of eighty years, they are looked on as dead in law; their heirs immediately succeed to their estates; only a small pittance is reserved for their support; and the poor ones are maintained at the public charge. After that period, they are held incapable of any employment of trust or profit; they cannot purchase lands, or take leases; neither are they allowed to be witnesses in any cause, either civil or criminal, not even for the decision of meers and bounds. + +"At ninety, they lose their teeth and hair; they have at that age no distinction of taste, but eat and drink whatever they can get, without relish or appetite. The diseases they were subject to still continue, without increasing or diminishing. In talking, they forget the common appellation of things, and the names of persons, even of those who are their nearest friends and relations. For the same reason, they never can amuse themselves with reading, because their memory will not serve to carry them from the beginning of a sentence to the end; and by this defect, they are deprived of the only entertainment whereof they might otherwise be capable. + +The language of this country being always upon the flux, the struldbrugs of one age do not understand those of another; neither are they able, after two hundred years, to hold any conversation (farther than by a few general words) with their neighbours the mortals; and thus they lie under the disadvantage of living like foreigners in their own country." + +This was the account given me of the struldbrugs, as near as I can remember. I afterwards saw five or six of different ages, the youngest not above two hundred years old, who were brought to me at several times by some of my friends; but although they were told, "that I was a great traveller, and had seen all the world," they had not the least curiosity to ask me a question; only desired "I would give them slumskudask," or a token of remembrance; which is a modest way of begging, to avoid the law, that strictly forbids it, because they are provided for by the public, although indeed with a very scanty allowance. + +They are despised and hated by all sorts of people. When one of them is born, it is reckoned ominous, and their birth is recorded very particularly so that you may know their age by consulting the register, which, however, has not been kept above a thousand years past, or at least has been destroyed by time or public disturbances. But the usual way of computing how old they are, is by asking them what kings or great persons they can remember, and then consulting history; for infallibly the last prince in their mind did not begin his reign after they were fourscore years old. + +They were the most mortifying sight I ever beheld; and the women more horrible than the men. Besides the usual deformities in extreme old age, they acquired an additional ghastliness, in proportion to their number of years, which is not to be described; and among half a dozen, I soon distinguished which was the eldest, although there was not above a century or two between them. + +The reader will easily believe, that from what I had hear and seen, my keen appetite for perpetuity of life was much abated. I grew heartily ashamed of the pleasing visions I had formed; and thought no tyrant could invent a death into which I would not run with pleasure, from such a life. The king heard of all that had passed between me and my friends upon this occasion, and rallied me very pleasantly; wishing I could send a couple of struldbrugs to my own country, to arm our people against the fear of death; but this, it seems, is forbidden by the fundamental laws of the kingdom, or else I should have been well content with the trouble and expense of transporting them. + +I could not but agree, that the laws of this kingdom relative to the struldbrugs were founded upon the strongest reasons, and such as any other country would be under the necessity of enacting, in the like circumstances. Otherwise, as avarice is the necessary consequence of old age, those immortals would in time become proprietors of the whole nation, and engross the civil power, which, for want of abilities to manage, must end in the ruin of the public. + +CHAPTER XI. + +[The author leaves Luggnagg, and sails to Japan. From thence he returns in a Dutch ship to Amsterdam, and from Amsterdam to England.] + +I thought this account of the struldbrugs might be some entertainment to the reader, because it seems to be a little out of the common way; at least I do not remember to have met the like in any book of travels that has come to my hands: and if I am deceived, my excuse must be, that it is necessary for travellers who describe the same country, very often to agree in dwelling on the same particulars, without deserving the censure of having borrowed or transcribed from those who wrote before them. + +There is indeed a perpetual commerce between this kingdom and the great empire of Japan; and it is very probable, that the Japanese authors may have given some account of the struldbrugs; but my stay in Japan was so short, and I was so entirely a stranger to the language, that I was not qualified to make any inquiries. But I hope the Dutch, upon this notice, will be curious and able enough to supply my defects. + +His majesty having often pressed me to accept some employment in his court, and finding me absolutely determined to return to my native country, was pleased to give me his license to depart; and honoured me with a letter of recommendation, under his own hand, to the Emperor of Japan. He likewise presented me with four hundred and forty-four large pieces of gold (this nation delighting in even numbers), and a red diamond, which I sold in England for eleven hundred pounds. + +On the 6th of May, 1709, I took a solemn leave of his majesty, and all my friends. This prince was so gracious as to order a guard to conduct me to Glanguenstald, which is a royal port to the south- west part of the island. In six days I found a vessel ready to carry me to Japan, and spent fifteen days in the voyage. We landed at a small port-town called Xamoschi, situated on the south-east part of Japan; the town lies on the western point, where there is a narrow strait leading northward into along arm of the sea, upon the north-west part of which, Yedo, the metropolis, stands. At landing, I showed the custom-house officers my letter from the king of Luggnagg to his imperial majesty. They knew the seal perfectly well; it was as broad as the palm of my hand. The impression was, A KING LIFTING UP A LAME BEGGAR FROM THE EARTH. The magistrates of the town, hearing of my letter, received me as a public minister. They provided me with carriages and servants, and bore my charges to Yedo; where I was admitted to an audience, and delivered my letter, which was opened with great ceremony, and explained to the Emperor by an interpreter, who then gave me notice, by his majesty's order, "that I should signify my request, and, whatever it were, it should be granted, for the sake of his royal brother of Luggnagg." This interpreter was a person employed to transact affairs with the Hollanders. He soon conjectured, by my countenance, that I was a European, and therefore repeated his majesty's commands in Low Dutch, which he spoke perfectly well. I answered, as I had before determined, "that I was a Dutch merchant, shipwrecked in a very remote country, whence I had travelled by sea and land to Luggnagg, and then took shipping for Japan; where I knew my countrymen often traded, and with some of these I hoped to get an opportunity of returning into Europe: I therefore most humbly entreated his royal favour, to give order that I should be conducted in safety to Nangasac." To this I added another petition, "that for the sake of my patron the king of Luggnagg, his majesty would condescend to excuse my performing the ceremony imposed on my countrymen, of trampling upon the crucifix: because I had been thrown into his kingdom by my misfortunes, without any intention of trading." When this latter petition was interpreted to the Emperor, he seemed a little surprised; and said, "he believed I was the first of my countrymen who ever made any scruple in this point; and that he began to doubt, whether I was a real Hollander, or not; but rather suspected I must be a Christian. However, for the reasons I had offered, but chiefly to gratify the king of Luggnagg by an uncommon mark of his favour, he would comply with the singularity of my humour; but the affair must be managed with dexterity, and his officers should be commanded to let me pass, as it were by forgetfulness. For he assured me, that if the secret should be discovered by my countrymen the Dutch, they would cut my throat in the voyage." I returned my thanks, by the interpreter, for so unusual a favour; and some troops being at that time on their march to Nangasac, the commanding officer had orders to convey me safe thither, with particular instructions about the business of the crucifix. + +On the 9th day of June, 1709, I arrived at Nangasac, after a very long and troublesome journey. I soon fell into the company of some Dutch sailors belonging to the Amboyna, of Amsterdam, a stout ship of 450 tons. I had lived long in Holland, pursuing my studies at Leyden, and I spoke Dutch well. The seamen soon knew whence I came last: they were curious to inquire into my voyages and course of life. I made up a story as short and probable as I could, but concealed the greatest part. I knew many persons in Holland. I was able to invent names for my parents, whom I pretended to be obscure people in the province of Gelderland. I would have given the captain (one Theodorus Vangrult) what he pleased to ask for my voyage to Holland; but understanding I was a surgeon, he was contented to take half the usual rate, on condition that I would serve him in the way of my calling. Before we took shipping, I was often asked by some of the crew, whether I had performed the ceremony above mentioned? I evaded the question by general answers; "that I had satisfied the Emperor and court in all particulars." However, a malicious rogue of a skipper went to an officer, and pointing to me, told him, "I had not yet trampled on the crucifix;" but the other, who had received instructions to let me pass, gave the rascal twenty strokes on the shoulders with a bamboo; after which I was no more troubled with such questions. + +Nothing happened worth mentioning in this voyage. We sailed with a fair wind to the Cape of Good Hope, where we staid only to take in fresh water. On the 10th of April, 1710, we arrived safe at Amsterdam, having lost only three men by sickness in the voyage, and a fourth, who fell from the foremast into the sea, not far from the coast of Guinea. From Amsterdam I soon after set sail for England, in a small vessel belonging to that city. + +On the 16th of April we put in at the Downs. I landed next morning, and saw once more my native country, after an absence of five years and six months complete. I went straight to Redriff, where I arrived the same day at two in the afternoon, and found my wife and family in good health. + +PART IV -- A VOYAGE TO THE COUNTRY OF THE HOUYHNHNMS. + +CHAPTER I. + +[The author sets out as captain of a ship. His men conspire against him, confine him a long time to his cabin, and set him on shore in an unknown land. He travels up into the country. The Yahoos, a strange sort of animal, described. The author meets two Houyhnhnms.] + +I continued at home with my wife and children about five months, in a very happy condition, if I could have learned the lesson of knowing when I was well. I left my poor wife big with child, and accepted an advantageous offer made me to be captain of the Adventurer, a stout merchantman of 350 tons: for I understood navigation well, and being grown weary of a surgeon's employment at sea, which, however, I could exercise upon occasion, I took a skilful young man of that calling, one Robert Purefoy, into my ship. We set sail from Portsmouth upon the 7th day of September, 1710; on the 14th we met with Captain Pocock, of Bristol, at Teneriffe, who was going to the bay of Campechy to cut logwood. On the 16th, he was parted from us by a storm; I heard since my return, that his ship foundered, and none escaped but one cabin boy. He was an honest man, and a good sailor, but a little too positive in his own opinions, which was the cause of his destruction, as it has been with several others; for if he had followed my advice, he might have been safe at home with his family at this time, as well as myself. + +I had several men who died in my ship of calentures, so that I was forced to get recruits out of Barbadoes and the Leeward Islands, where I touched, by the direction of the merchants who employed me; which I had soon too much cause to repent: for I found afterwards, that most of them had been buccaneers. I had fifty hands onboard; and my orders were, that I should trade with the Indians in the South-Sea, and make what discoveries I could. These rogues, whom I had picked up, debauched my other men, and they all formed a conspiracy to seize the ship, and secure me; which they did one morning, rushing into my cabin, and binding me hand and foot, threatening to throw me overboard, if I offered to stir. I told them, "I was their prisoner, and would submit." This they made me swear to do, and then they unbound me, only fastening one of my legs with a chain, near my bed, and placed a sentry at my door with his piece charged, who was commanded to shoot me dead if I attempted my liberty. They sent me own victuals and drink, and took the government of the ship to themselves. Their design was to turn pirates and, plunder the Spaniards, which they could not do till they got more men. But first they resolved to sell the goods the ship, and then go to Madagascar for recruits, several among them having died since my confinement. They sailed many weeks, and traded with the Indians; but I knew not what course they took, being kept a close prisoner in my cabin, and expecting nothing less than to be murdered, as they often threatened me. + +Upon the 9th day of May, 1711, one James Welch came down to my cabin, and said, "he had orders from the captain to set me ashore." I expostulated with him, but in vain; neither would he so much as tell me who their new captain was. They forced me into the long- boat, letting me put on my best suit of clothes, which were as good as new, and take a small bundle of linen, but no arms, except my hanger; and they were so civil as not to search my pockets, into which I conveyed what money I had, with some other little necessaries. They rowed about a league, and then set me down on a strand. I desired them to tell me what country it was. They all swore, "they knew no more than myself;" but said, "that the captain" (as they called him) "was resolved, after they had sold the lading, to get rid of me in the first place where they could discover land." They pushed off immediately, advising me to make haste for fear of being overtaken by the tide, and so bade me farewell. + +In this desolate condition I advanced forward, and soon got upon firm ground, where I sat down on a bank to rest myself, and consider what I had best do. When I was a little refreshed, I went up into the country, resolving to deliver myself to the first savages I should meet, and purchase my life from them by some bracelets, glass rings, and other toys, which sailors usually provide themselves with in those voyages, and whereof I had some about me. The land was divided by long rows of trees, not regularly planted, but naturally growing; there was great plenty of grass, and several fields of oats. I walked very circumspectly, for fear of being surprised, or suddenly shot with an arrow from behind, or on either side. I fell into a beaten road, where I saw many tracts of human feet, and some of cows, but most of horses. At last I beheld several animals in a field, and one or two of the same kind sitting in trees. Their shape was very singular and deformed, which a little discomposed me, so that I lay down behind a thicket to observe them better. Some of them coming forward near the place where I lay, gave me an opportunity of distinctly marking their form. Their heads and breasts were covered with a thick hair, some frizzled, and others lank; they had beards like goats, and a long ridge of hair down their backs, and the fore parts of their legs and feet; but the rest of their bodies was bare, so that I might see their skins, which were of a brown buff colour. They had no tails, nor any hair at all on their buttocks, except about the anus, which, I presume, nature had placed there to defend them as they sat on the ground, for this posture they used, as well as lying down, and often stood on their hind feet. They climbed high trees as nimbly as a squirrel, for they had strong extended claws before and behind, terminating in sharp points, and hooked. They would often spring, and bound, and leap, with prodigious agility. The females were not so large as the males; they had long lank hair on their heads, but none on their faces, nor any thing more than a sort of down on the rest of their bodies, except about the anus and pudenda. The dugs hung between their fore feet, and often reached almost to the ground as they walked. The hair of both sexes was of several colours, brown, red, black, and yellow. Upon the whole, I never beheld, in all my travels, so disagreeable an animal, or one against which I naturally conceived so strong an antipathy. So that, thinking I had seen enough, full of contempt and aversion, I got up, and pursued the beaten road, hoping it might direct me to the cabin of some Indian. I had not got far, when I met one of these creatures full in my way, and coming up directly to me. The ugly monster, when he saw me, distorted several ways, every feature of his visage, and stared, as at an object he had never seen before; then approaching nearer, lifted up his fore-paw, whether out of curiosity or mischief I could not tell; but I drew my hanger, and gave him a good blow with the flat side of it, for I durst not strike with the edge, fearing the inhabitants might be provoked against me, if they should come to know that I had killed or maimed any of their cattle. When the beast felt the smart, he drew back, and roared so loud, that a herd of at least forty came flocking about me from the next field, howling and making odious faces; but I ran to the body of a tree, and leaning my back against it, kept them off by waving my hanger. Several of this cursed brood, getting hold of the branches behind, leaped up into the tree, whence they began to discharge their excrements on my head; however, I escaped pretty well by sticking close to the stem of the tree, but was almost stifled with the filth, which fell about me on every side. + +In the midst of this distress, I observed them all to run away on a sudden as fast as they could; at which I ventured to leave the tree and pursue the road, wondering what it was that could put them into this fright. But looking on my left hand, I saw a horse walking softly in the field; which my persecutors having sooner discovered, was the cause of their flight. The horse started a little, when he came near me, but soon recovering himself, looked full in my face with manifest tokens of wonder; he viewed my hands and feet, walking round me several times. I would have pursued my journey, but he placed himself directly in the way, yet looking with a very mild aspect, never offering the least violence. We stood gazing at each other for some time; at last I took the boldness to reach my hand towards his neck with a design to stroke it, using the common style and whistle of jockeys, when they are going to handle a strange horse. But this animal seemed to receive my civilities with disdain, shook his head, and bent his brows, softly raising up his right fore-foot to remove my hand. Then he neighed three or four times, but in so different a cadence, that I almost began to think he was speaking to himself, in some language of his own. + +While he and I were thus employed, another horse came up; who applying himself to the first in a very formal manner, they gently struck each other's right hoof before, neighing several times by turns, and varying the sound, which seemed to be almost articulate. They went some paces off, as if it were to confer together, walking side by side, backward and forward, like persons deliberating upon some affair of weight, but often turning their eyes towards me, as it were to watch that I might not escape. I was amazed to see such actions and behaviour in brute beasts; and concluded with myself, that if the inhabitants of this country were endued with a proportionable degree of reason, they must needs be the wisest people upon earth. This thought gave me so much comfort, that I resolved to go forward, until I could discover some house or village, or meet with any of the natives, leaving the two horses to discourse together as they pleased. But the first, who was a dapple gray, observing me to steal off, neighed after me in so expressive a tone, that I fancied myself to understand what he meant; whereupon I turned back, and came near to him to expect his farther commands: but concealing my fear as much as I could, for I began to be in some pain how this adventure might terminate; and the reader will easily believe I did not much like my present situation. + +The two horses came up close to me, looking with great earnestness upon my face and hands. The gray steed rubbed my hat all round with his right fore-hoof, and discomposed it so much that I was forced to adjust it better by taking it off and settling it again; whereat, both he and his companion (who was a brown bay) appeared to be much surprised: the latter felt the lappet of my coat, and finding it to hang loose about me, they both looked with new signs of wonder. He stroked my right hand, seeming to admire the softness and colour; but he squeezed it so hard between his hoof and his pastern, that I was forced to roar; after which they both touched me with all possible tenderness. They were under great perplexity about my shoes and stockings, which they felt very often, neighing to each other, and using various gestures, not unlike those of a philosopher, when he would attempt to solve some new and difficult phenomenon. + +Upon the whole, the behaviour of these animals was so orderly and rational, so acute and judicious, that I at last concluded they must needs be magicians, who had thus metamorphosed themselves upon some design, and seeing a stranger in the way, resolved to divert themselves with him; or, perhaps, were really amazed at the sight of a man so very different in habit, feature, and complexion, from those who might probably live in so remote a climate. Upon the strength of this reasoning, I ventured to address them in the following manner: "Gentlemen, if you be conjurers, as I have good cause to believe, you can understand my language; therefore I make bold to let your worships know that I am a poor distressed Englishman, driven by his misfortunes upon your coast; and I entreat one of you to let me ride upon his back, as if he were a real horse, to some house or village where I can be relieved. In return of which favour, I will make you a present of this knife and bracelet," taking them out of my pocket. The two creatures stood silent while I spoke, seeming to listen with great attention, and when I had ended, they neighed frequently towards each other, as if they were engaged in serious conversation. I plainly observed that their language expressed the passions very well, and the words might, with little pains, be resolved into an alphabet more easily than the Chinese. + +I could frequently distinguish the word Yahoo, which was repeated by each of them several times: and although it was impossible for me to conjecture what it meant, yet while the two horses were busy in conversation, I endeavoured to practise this word upon my tongue; and as soon as they were silent, I boldly pronounced Yahoo in a loud voice, imitating at the same time, as near as I could, the neighing of a horse; at which they were both visibly surprised; and the gray repeated the same word twice, as if he meant to teach me the right accent; wherein I spoke after him as well as I could, and found myself perceivably to improve every time, though very far from any degree of perfection. Then the bay tried me with a second word, much harder to be pronounced; but reducing it to the English orthography, may be spelt thus, Houyhnhnm. I did not succeed in this so well as in the former; but after two or three farther trials, I had better fortune; and they both appeared amazed at my capacity. + +After some further discourse, which I then conjectured might relate to me, the two friends took their leaves, with the same compliment of striking each other's hoof; and the gray made me signs that I should walk before him; wherein I thought it prudent to comply, till I could find a better director. When I offered to slacken my pace, he would cry hhuun hhuun: I guessed his meaning, and gave him to understand, as well as I could, "that I was weary, and not able to walk faster;" upon which he would stand awhile to let me rest. + +CHAPTER II. + +[The author conducted by a Houyhnhnm to his house. The house described. The author's reception. The food of the Houyhnhnms. The author in distress for want of meat. Is at last relieved. His manner of feeding in this country.] + +Having travelled about three miles, we came to a long kind of building, made of timber stuck in the ground, and wattled across; the roof was low and covered with straw. I now began to be a little comforted; and took out some toys, which travellers usually carry for presents to the savage Indians of America, and other parts, in hopes the people of the house would be thereby encouraged to receive me kindly. The horse made me a sign to go in first; it was a large room with a smooth clay floor, and a rack and manger, extending the whole length on one side. There were three nags and two mares, not eating, but some of them sitting down upon their hams, which I very much wondered at; but wondered more to see the rest employed in domestic business; these seemed but ordinary cattle. However, this confirmed my first opinion, that a people who could so far civilise brute animals, must needs excel in wisdom all the nations of the world. The gray came in just after, and thereby prevented any ill treatment which the others might have given me. He neighed to them several times in a style of authority, and received answers. + +Beyond this room there were three others, reaching the length of the house, to which you passed through three doors, opposite to each other, in the manner of a vista. We went through the second room towards the third. Here the gray walked in first, beckoning me to attend: I waited in the second room, and got ready my presents for the master and mistress of the house; they were two knives, three bracelets of false pearls, a small looking-glass, and a bead necklace. The horse neighed three or four times, and I waited to hear some answers in a human voice, but I heard no other returns than in the same dialect, only one or two a little shriller than his. I began to think that this house must belong to some person of great note among them, because there appeared so much ceremony before I could gain admittance. But, that a man of quality should be served all by horses, was beyond my comprehension. I feared my brain was disturbed by my sufferings and misfortunes. I roused myself, and looked about me in the room where I was left alone: this was furnished like the first, only after a more elegant manner. I rubbed my eyes often, but the same objects still occurred. I pinched my arms and sides to awake myself, hoping I might be in a dream. I then absolutely concluded, that all these appearances could be nothing else but necromancy and magic. But I had no time to pursue these reflections; for the gray horse came to the door, and made me a sign to follow him into the third room where I saw a very comely mare, together with a colt and foal, sitting on their haunches upon mats of straw, not unartfully made, and perfectly neat and clean. + +The mare soon after my entrance rose from her mat, and coming up close, after having nicely observed my hands and face, gave me a most contemptuous look; and turning to the horse, I heard the word Yahoo often repeated betwixt them; the meaning of which word I could not then comprehend, although it was the first I had learned to pronounce. But I was soon better informed, to my everlasting mortification; for the horse, beckoning to me with his head, and repeating the hhuun, hhuun, as he did upon the road, which I understood was to attend him, led me out into a kind of court, where was another building, at some distance from the house. Here we entered, and I saw three of those detestable creatures, which I first met after my landing, feeding upon roots, and the flesh of some animals, which I afterwards found to be that of asses and dogs, and now and then a cow, dead by accident or disease. They were all tied by the neck with strong withes fastened to a beam; they held their food between the claws of their fore feet, and tore it with their teeth. + +The master horse ordered a sorrel nag, one of his servants, to untie the largest of these animals, and take him into the yard. The beast and I were brought close together, and by our countenances diligently compared both by master and servant, who thereupon repeated several times the word Yahoo. My horror and astonishment are not to be described, when I observed in this abominable animal, a perfect human figure: the face of it indeed was flat and broad, the nose depressed, the lips large, and the mouth wide; but these differences are common to all savage nations, where the lineaments of the countenance are distorted, by the natives suffering their infants to lie grovelling on the earth, or by carrying them on their backs, nuzzling with their face against the mothers' shoulders. The fore-feet of the Yahoo differed from my hands in nothing else but the length of the nails, the coarseness and brownness of the palms, and the hairiness on the backs. There was the same resemblance between our feet, with the same differences; which I knew very well, though the horses did not, because of my shoes and stockings; the same in every part of our bodies except as to hairiness and colour, which I have already described. + +The great difficulty that seemed to stick with the two horses, was to see the rest of my body so very different from that of a Yahoo, for which I was obliged to my clothes, whereof they had no conception. The sorrel nag offered me a root, which he held (after their manner, as we shall describe in its proper place) between his hoof and pastern; I took it in my hand, and, having smelt it, returned it to him again as civilly as I could. He brought out of the Yahoos' kennel a piece of ass's flesh; but it smelt so offensively that I turned from it with loathing: he then threw it to the Yahoo, by whom it was greedily devoured. He afterwards showed me a wisp of hay, and a fetlock full of oats; but I shook my head, to signify that neither of these were food for me. And indeed I now apprehended that I must absolutely starve, if I did not get to some of my own species; for as to those filthy Yahoos, although there were few greater lovers of mankind at that time than myself, yet I confess I never saw any sensitive being so detestable on all accounts; and the more I came near them the more hateful they grew, while I stayed in that country. This the master horse observed by my behaviour, and therefore sent the Yahoo back to his kennel. He then put his fore-hoof to his mouth, at which I was much surprised, although he did it with ease, and with a motion that appeared perfectly natural, and made other signs, to know what I would eat; but I could not return him such an answer as he was able to apprehend; and if he had understood me, I did not see how it was possible to contrive any way for finding myself nourishment. While we were thus engaged, I observed a cow passing by, whereupon I pointed to her, and expressed a desire to go and milk her. This had its effect; for he led me back into the house, and ordered a mare-servant to open a room, where a good store of milk lay in earthen and wooden vessels, after a very orderly and cleanly manner. She gave me a large bowlful, of which I drank very heartily, and found myself well refreshed. + +About noon, I saw coming towards the house a kind of vehicle drawn like a sledge by four Yahoos. There was in it an old steed, who seemed to be of quality; he alighted with his hind-feet forward, having by accident got a hurt in his left fore-foot. He came to dine with our horse, who received him with great civility. They dined in the best room, and had oats boiled in milk for the second course, which the old horse ate warm, but the rest cold. Their mangers were placed circular in the middle of the room, and divided into several partitions, round which they sat on their haunches, upon bosses of straw. In the middle was a large rack, with angles answering to every partition of the manger; so that each horse and mare ate their own hay, and their own mash of oats and milk, with much decency and regularity. The behaviour of the young colt and foal appeared very modest, and that of the master and mistress extremely cheerful and complaisant to their guest. The gray ordered me to stand by him; and much discourse passed between him and his friend concerning me, as I found by the stranger's often looking on me, and the frequent repetition of the word Yahoo. + +I happened to wear my gloves, which the master gray observing, seemed perplexed, discovering signs of wonder what I had done to my fore-feet. He put his hoof three or four times to them, as if he would signify, that I should reduce them to their former shape, which I presently did, pulling off both my gloves, and putting them into my pocket. This occasioned farther talk; and I saw the company was pleased with my behaviour, whereof I soon found the good effects. I was ordered to speak the few words I understood; and while they were at dinner, the master taught me the names for oats, milk, fire, water, and some others, which I could readily pronounce after him, having from my youth a great facility in learning languages. + +When dinner was done, the master horse took me aside, and by signs and words made me understand the concern he was in that I had nothing to eat. Oats in their tongue are called hlunnh. This word I pronounced two or three times; for although I had refused them at first, yet, upon second thoughts, I considered that I could contrive to make of them a kind of bread, which might be sufficient, with milk, to keep me alive, till I could make my escape to some other country, and to creatures of my own species. The horse immediately ordered a white mare servant of his family to bring me a good quantity of oats in a sort of wooden tray. These I heated before the fire, as well as I could, and rubbed them till the husks came off, which I made a shift to winnow from the grain. I ground and beat them between two stones; then took water, and made them into a paste or cake, which I toasted at the fire and eat warm with milk. It was at first a very insipid diet, though common enough in many parts of Europe, but grew tolerable by time; and having been often reduced to hard fare in my life, this was not the first experiment I had made how easily nature is satisfied. And I cannot but observe, that I never had one hours sickness while I stayed in this island. It is true, I sometimes made a shift to catch a rabbit, or bird, by springs made of Yahoo's hairs; and I often gathered wholesome herbs, which I boiled, and ate as salads with my bread; and now and then, for a rarity, I made a little butter, and drank the whey. I was at first at a great loss for salt, but custom soon reconciled me to the want of it; and I am confident that the frequent use of salt among us is an effect of luxury, and was first introduced only as a provocative to drink, except where it is necessary for preserving flesh in long voyages, or in places remote from great markets; for we observe no animal to be fond of it but man, and as to myself, when I left this country, it was a great while before I could endure the taste of it in anything that I ate. + +This is enough to say upon the subject of my diet, wherewith other travellers fill their books, as if the readers were personally concerned whether we fare well or ill. However, it was necessary to mention this matter, lest the world should think it impossible that I could find sustenance for three years in such a country, and among such inhabitants. + +When it grew towards evening, the master horse ordered a place for me to lodge in; it was but six yards from the house and separated from the stable of the Yahoos. Here I got some straw, and covering myself with my own clothes, slept very sound. But I was in a short time better accommodated, as the reader shall know hereafter, when I come to treat more particularly about my way of living. + +CHAPTER III. + +[The author studies to learn the language. The Houyhnhnm, his master, assists in teaching him. The language described. Several Houyhnhnms of quality come out of curiosity to see the author. He gives his master a short account of his voyage.] + +My principal endeavour was to learn the language, which my master (for so I shall henceforth call him), and his children, and every servant of his house, were desirous to teach me; for they looked upon it as a prodigy, that a brute animal should discover such marks of a rational creature. I pointed to every thing, and inquired the name of it, which I wrote down in my journal-book when I was alone, and corrected my bad accent by desiring those of the family to pronounce it often. In this employment, a sorrel nag, one of the under-servants, was very ready to assist me. + +In speaking, they pronounced through the nose and throat, and their language approaches nearest to the High-Dutch, or German, of any I know in Europe; but is much more graceful and significant. The emperor Charles V. made almost the same observation, when he said "that if he were to speak to his horse, it should be in High- Dutch." + +The curiosity and impatience of my master were so great, that he spent many hours of his leisure to instruct me. He was convinced (as he afterwards told me) that I must be a Yahoo; but my teachableness, civility, and cleanliness, astonished him; which were qualities altogether opposite to those animals. He was most perplexed about my clothes, reasoning sometimes with himself, whether they were a part of my body: for I never pulled them off till the family were asleep, and got them on before they waked in the morning. My master was eager to learn "whence I came; how I acquired those appearances of reason, which I discovered in all my actions; and to know my story from my own mouth, which he hoped he should soon do by the great proficiency I made in learning and pronouncing their words and sentences." To help my memory, I formed all I learned into the English alphabet, and writ the words down, with the translations. This last, after some time, I ventured to do in my master's presence. It cost me much trouble to explain to him what I was doing; for the inhabitants have not the least idea of books or literature. + +In about ten weeks time, I was able to understand most of his questions; and in three months, could give him some tolerable answers. He was extremely curious to know "from what part of the country I came, and how I was taught to imitate a rational creature; because the Yahoos (whom he saw I exactly resembled in my head, hands, and face, that were only visible), with some appearance of cunning, and the strongest disposition to mischief, were observed to be the most unteachable of all brutes." I answered, "that I came over the sea, from a far place, with many others of my own kind, in a great hollow vessel made of the bodies of trees: that my companions forced me to land on this coast, and then left me to shift for myself." It was with some difficulty, and by the help of many signs, that I brought him to understand me. He replied, "that I must needs be mistaken, or that I said the thing which was not;" for they have no word in their language to express lying or falsehood. "He knew it was impossible that there could be a country beyond the sea, or that a parcel of brutes could move a wooden vessel whither they pleased upon water. He was sure no Houyhnhnm alive could make such a vessel, nor would trust Yahoos to manage it." + +The word Houyhnhnm, in their tongue, signifies a HORSE, and, in its etymology, the PERFECTION OF NATURE. I told my master, "that I was at a loss for expression, but would improve as fast as I could; and hoped, in a short time, I should be able to tell him wonders." He was pleased to direct his own mare, his colt, and foal, and the servants of the family, to take all opportunities of instructing me; and every day, for two or three hours, he was at the same pains himself. Several horses and mares of quality in the neighbourhood came often to our house, upon the report spread of "a wonderful Yahoo, that could speak like a Houyhnhnm, and seemed, in his words and actions, to discover some glimmerings of reason." These delighted to converse with me: they put many questions, and received such answers as I was able to return. By all these advantages I made so great a progress, that, in five months from my arrival I understood whatever was spoken, and could express myself tolerably well. + +The Houyhnhnms, who came to visit my master out of a design of seeing and talking with me, could hardly believe me to be a right Yahoo, because my body had a different covering from others of my kind. They were astonished to observe me without the usual hair or skin, except on my head, face, and hands; but I discovered that secret to my master upon an accident which happened about a fortnight before. + +I have already told the reader, that every night, when the family were gone to bed, it was my custom to strip, and cover myself with my clothes. It happened, one morning early, that my master sent for me by the sorrel nag, who was his valet. When he came I was fast asleep, my clothes fallen off on one side, and my shirt above my waist. I awaked at the noise he made, and observed him to deliver his message in some disorder; after which he went to my master, and in a great fright gave him a very confused account of what he had seen. This I presently discovered, for, going as soon as I was dressed to pay my attendance upon his honour, he asked me "the meaning of what his servant had reported, that I was not the same thing when I slept, as I appeared to be at other times; that his vale assured him, some part of me was white, some yellow, at least not so white, and some brown." + +I had hitherto concealed the secret of my dress, in order to distinguish myself, as much as possible, from that cursed race of Yahoos; but now I found it in vain to do so any longer. Besides, I considered that my clothes and shoes would soon wear out, which already were in a declining condition, and must be supplied by some contrivance from the hides of Yahoos, or other brutes; whereby the whole secret would be known. I therefore told my master, "that in the country whence I came, those of my kind always covered their bodies with the hairs of certain animals prepared by art, as well for decency as to avoid the inclemencies of air, both hot and cold; of which, as to my own person, I would give him immediate conviction, if he pleased to command me: only desiring his excuse, if I did not expose those parts that nature taught us to conceal." He said, "my discourse was all very strange, but especially the last part; for he could not understand, why nature should teach us to conceal what nature had given; that neither himself nor family were ashamed of any parts of their bodies; but, however, I might do as I pleased." Whereupon I first unbuttoned my coat, and pulled it off. I did the same with my waistcoat. I drew off my shoes, stockings, and breeches. I let my shirt down to my waist, and drew up the bottom; fastening it like a girdle about my middle, to hide my nakedness. + +My master observed the whole performance with great signs of curiosity and admiration. He took up all my clothes in his pastern, one piece after another, and examined them diligently; he then stroked my body very gently, and looked round me several times; after which, he said, it was plain I must be a perfect Yahoo; but that I differed very much from the rest of my species in the softness, whiteness, and smoothness of my skin; my want of hair in several parts of my body; the shape and shortness of my claws behind and before; and my affectation of walking continually on my two hinder feet. He desired to see no more; and gave me leave to put on my clothes again, for I was shuddering with cold. + +I expressed my uneasiness at his giving me so often the appellation of Yahoo, an odious animal, for which I had so utter a hatred and contempt: I begged he would forbear applying that word to me, and make the same order in his family and among his friends whom he suffered to see me. I requested likewise, "that the secret of my having a false covering to my body, might be known to none but himself, at least as long as my present clothing should last; for as to what the sorrel nag, his valet, had observed, his honour might command him to conceal it." + +All this my master very graciously consented to; and thus the secret was kept till my clothes began to wear out, which I was forced to supply by several contrivances that shall hereafter be mentioned. In the meantime, he desired "I would go on with my utmost diligence to learn their language, because he was more astonished at my capacity for speech and reason, than at the figure of my body, whether it were covered or not;" adding, "that he waited with some impatience to hear the wonders which I promised to tell him." + +Thenceforward he doubled the pains he had been at to instruct me: he brought me into all company, and made them treat me with civility; "because," as he told them, privately, "this would put me into good humour, and make me more diverting." + +Every day, when I waited on him, beside the trouble he was at in teaching, he would ask me several questions concerning myself, which I answered as well as I could, and by these means he had already received some general ideas, though very imperfect. It would be tedious to relate the several steps by which I advanced to a more regular conversation; but the first account I gave of myself in any order and length was to this purpose: + +"That I came from a very far country, as I already had attempted to tell him, with about fifty more of my own species; that we travelled upon the seas in a great hollow vessel made of wood, and larger than his honour's house. I described the ship to him in the best terms I could, and explained, by the help of my handkerchief displayed, how it was driven forward by the wind. That upon a quarrel among us, I was set on shore on this coast, where I walked forward, without knowing whither, till he delivered me from the persecution of those execrable Yahoos." He asked me, "who made the ship, and how it was possible that the Houyhnhnms of my country would leave it to the management of brutes?" My answer was, "that I durst proceed no further in my relation, unless he would give me his word and honour that he would not be offended, and then I would tell him the wonders I had so often promised." He agreed; and I went on by assuring him, that the ship was made by creatures like myself; who, in all the countries I had travelled, as well as in my own, were the only governing rational animals; and that upon my arrival hither, I was as much astonished to see the Houyhnhnms act like rational beings, as he, or his friends, could be, in finding some marks of reason in a creature he was pleased to call a Yahoo; to which I owned my resemblance in every part, but could not account for their degenerate and brutal nature. I said farther, "that if good fortune ever restored me to my native country, to relate my travels hither, as I resolved to do, everybody would believe, that I said the thing that was not, that I invented the story out of my own head; and (with all possible respect to himself, his family, and friends, and under his promise of not being offended) our countrymen would hardly think it probable that a Houyhnhnm should be the presiding creature of a nation, and a Yahoo the brute." + +CHAPTER IV. + +[The Houyhnhnm's notion of truth and falsehood. The author's discourse disapproved by his master. The author gives a more particular account of himself, and the accidents of his voyage.] + +My master heard me with great appearances of uneasiness in his countenance; because doubting, or not believing, are so little known in this country, that the inhabitants cannot tell how to behave themselves under such circumstances. And I remember, in frequent discourses with my master concerning the nature of manhood in other parts of the world, having occasion to talk of lying and false representation, it was with much difficulty that he comprehended what I meant, although he had otherwise a most acute judgment. For he argued thus: "that the use of speech was to make us understand one another, and to receive information of facts; now, if any one said the thing which was not, these ends were defeated, because I cannot properly be said to understand him; and I am so far from receiving information, that he leaves me worse than in ignorance; for I am led to believe a thing black, when it is white, and short, when it is long." And these were all the notions he had concerning that faculty of lying, so perfectly well understood, and so universally practised, among human creatures. + +To return from this digression. When I asserted that the Yahoos were the only governing animals in my country, which my master said was altogether past his conception, he desired to know, "whether we had Houyhnhnms among us, and what was their employment?" I told him, "we had great numbers; that in summer they grazed in the fields, and in winter were kept in houses with hay and oats, where Yahoo servants were employed to rub their skins smooth, comb their manes, pick their feet, serve them with food, and make their beds." "I understand you well," said my master: "it is now very plain, from all you have spoken, that whatever share of reason the Yahoos pretend to, the Houyhnhnms are your masters; I heartily wish our Yahoos would be so tractable." I begged "his honour would please to excuse me from proceeding any further, because I was very certain that the account he expected from me would be highly displeasing." But he insisted in commanding me to let him know the best and the worst. I told him "he should be obeyed." I owned "that the Houyhnhnms among us, whom we called horses, were the most generous and comely animals we had; that they excelled in strength and swiftness; and when they belonged to persons of quality, were employed in travelling, racing, or drawing chariots; they were treated with much kindness and care, till they fell into diseases, or became foundered in the feet; but then they were sold, and used to all kind of drudgery till they died; after which their skins were stripped, and sold for what they were worth, and their bodies left to be devoured by dogs and birds of prey. But the common race of horses had not so good fortune, being kept by farmers and carriers, and other mean people, who put them to greater labour, and fed them worse." I described, as well as I could, our way of riding; the shape and use of a bridle, a saddle, a spur, and a whip; of harness and wheels. I added, "that we fastened plates of a certain hard substance, called iron, at the bottom of their feet, to preserve their hoofs from being broken by the stony ways, on which we often travelled." + +My master, after some expressions of great indignation, wondered "how we dared to venture upon a Houyhnhnm's back; for he was sure, that the weakest servant in his house would be able to shake off the strongest Yahoo; or by lying down and rolling on his back, squeeze the brute to death." I answered "that our horses were trained up, from three or four years old, to the several uses we intended them for; that if any of them proved intolerably vicious, they were employed for carriages; that they were severely beaten, while they were young, for any mischievous tricks; that the males, designed for the common use of riding or draught, were generally castrated about two years after their birth, to take down their spirits, and make them more tame and gentle; that they were indeed sensible of rewards and punishments; but his honour would please to consider, that they had not the least tincture of reason, any more than the Yahoos in this country." + +It put me to the pains of many circumlocutions, to give my master a right idea of what I spoke; for their language does not abound in variety of words, because their wants and passions are fewer than among us. But it is impossible to express his noble resentment at our savage treatment of the Houyhnhnm race; particularly after I had explained the manner and use of castrating horses among us, to hinder them from propagating their kind, and to render them more servile. He said, "if it were possible there could be any country where Yahoos alone were endued with reason, they certainly must be the governing animal; because reason in time will always prevail against brutal strength. But, considering the frame of our bodies, and especially of mine, he thought no creature of equal bulk was so ill-contrived for employing that reason in the common offices of life;" whereupon he desired to know whether those among whom I lived resembled me, or the Yahoos of his country?" I assured him, "that I was as well shaped as most of my age; but the younger, and the females, were much more soft and tender, and the skins of the latter generally as white as milk." He said, "I differed indeed from other Yahoos, being much more cleanly, and not altogether so deformed; but, in point of real advantage, he thought I differed for the worse: that my nails were of no use either to my fore or hinder feet; as to my fore feet, he could not properly call them by that name, for he never observed me to walk upon them; that they were too soft to bear the ground; that I generally went with them uncovered; neither was the covering I sometimes wore on them of the same shape, or so strong as that on my feet behind: that I could not walk with any security, for if either of my hinder feet slipped, I must inevitably fail." He then began to find fault with other parts of my body: "the flatness of my face, the prominence of my nose, mine eyes placed directly in front, so that I could not look on either side without turning my head: that I was not able to feed myself, without lifting one of my fore-feet to my mouth: and therefore nature had placed those joints to answer that necessity. He knew not what could be the use of those several clefts and divisions in my feet behind; that these were too soft to bear the hardness and sharpness of stones, without a covering made from the skin of some other brute; that my whole body wanted a fence against heat and cold, which I was forced to put on and off every day, with tediousness and trouble: and lastly, that he observed every animal in this country naturally to abhor the Yahoos, whom the weaker avoided, and the stronger drove from them. So that, supposing us to have the gift of reason, he could not see how it were possible to cure that natural antipathy, which every creature discovered against us; nor consequently how we could tame and render them serviceable. However, he would," as he said, "debate the matter no farther, because he was more desirous to know my own story, the country where I was born, and the several actions and events of my life, before I came hither." + +I assured him, "how extremely desirous I was that he should be satisfied on every point; but I doubted much, whether it would be possible for me to explain myself on several subjects, whereof his honour could have no conception; because I saw nothing in his country to which I could resemble them; that, however, I would do my best, and strive to express myself by similitudes, humbly desiring his assistance when I wanted proper words;" which he was pleased to promise me. + +I said, "my birth was of honest parents, in an island called England; which was remote from his country, as many days' journey as the strongest of his honour's servants could travel in the annual course of the sun; that I was bred a surgeon, whose trade it is to cure wounds and hurts in the body, gotten by accident or violence; that my country was governed by a female man, whom we called queen; that I left it to get riches, whereby I might maintain myself and family, when I should return; that, in my last voyage, I was commander of the ship, and had about fifty Yahoos under me, many of which died at sea, and I was forced to supply them by others picked out from several nations; that our ship was twice in danger of being sunk, the first time by a great storm, and the second by striking against a rock." Here my master interposed, by asking me, "how I could persuade strangers, out of different countries, to venture with me, after the losses I had sustained, and the hazards I had run?" I said, "they were fellows of desperate fortunes, forced to fly from the places of their birth on account of their poverty or their crimes. Some were undone by lawsuits; others spent all they had in drinking, whoring, and gaming; others fled for treason; many for murder, theft, poisoning, robbery, perjury, forgery, coining false money, for committing rapes, or sodomy; for flying from their colours, or deserting to the enemy; and most of them had broken prison; none of these durst return to their native countries, for fear of being hanged, or of starving in a jail; and therefore they were under the necessity of seeking a livelihood in other places." + +During this discourse, my master was pleased to interrupt me several times. I had made use of many circumlocutions in describing to him the nature of the several crimes for which most of our crew had been forced to fly their country. This labour took up several days' conversation, before he was able to comprehend me. He was wholly at a loss to know what could be the use or necessity of practising those vices. To clear up which, I endeavoured to give some ideas of the desire of power and riches; of the terrible effects of lust, intemperance, malice, and envy. All this I was forced to define and describe by putting cases and making suppositions. After which, like one whose imagination was struck with something never seen or heard of before, he would lift up his eyes with amazement and indignation. Power, government, war, law, punishment, and a thousand other things, had no terms wherein that language could express them, which made the difficulty almost insuperable, to give my master any conception of what I meant. But being of an excellent understanding, much improved by contemplation and converse, he at last arrived at a competent knowledge of what human nature, in our parts of the world, is capable to perform, and desired I would give him some particular account of that land which we call Europe, but especially of my own country. + +CHAPTER V. + +[The author at his master's command, informs him of the state of England. The causes of war among the princes of Europe. The author begins to explain the English constitution.] + +The reader may please to observe, that the following extract of many conversations I had with my master, contains a summary of the most material points which were discoursed at several times for above two years; his honour often desiring fuller satisfaction, as I farther improved in the Houyhnhnm tongue. I laid before him, as well as I could, the whole state of Europe; I discoursed of trade and manufactures, of arts and sciences; and the answers I gave to all the questions he made, as they arose upon several subjects, were a fund of conversation not to be exhausted. But I shall here only set down the substance of what passed between us concerning my own country, reducing it in order as well as I can, without any regard to time or other circumstances, while I strictly adhere to truth. My only concern is, that I shall hardly be able to do justice to my master's arguments and expressions, which must needs suffer by my want of capacity, as well as by a translation into our barbarous English. + +In obedience, therefore, to his honour's commands, I related to him the Revolution under the Prince of Orange; the long war with France, entered into by the said prince, and renewed by his successor, the present queen, wherein the greatest powers of Christendom were engaged, and which still continued: I computed, at his request, "that about a million of Yahoos might have been killed in the whole progress of it; and perhaps a hundred or more cities taken, and five times as many ships burnt or sunk." + +He asked me, "what were the usual causes or motives that made one country go to war with another?" I answered "they were innumerable; but I should only mention a few of the chief. Sometimes the ambition of princes, who never think they have land or people enough to govern; sometimes the corruption of ministers, who engage their master in a war, in order to stifle or divert the clamour of the subjects against their evil administration. Difference in opinions has cost many millions of lives: for instance, whether flesh be bread, or bread be flesh; whether the juice of a certain berry be blood or wine; whether whistling be a vice or a virtue; whether it be better to kiss a post, or throw it into the fire; what is the best colour for a coat, whether black, white, red, or gray; and whether it should be long or short, narrow or wide, dirty or clean; with many more. Neither are any wars so furious and bloody, or of so long a continuance, as those occasioned by difference in opinion, especially if it be in things indifferent. + +"Sometimes the quarrel between two princes is to decide which of them shall dispossess a third of his dominions, where neither of them pretend to any right. Sometimes one prince quarrels with another for fear the other should quarrel with him. Sometimes a war is entered upon, because the enemy is too strong; and sometimes, because he is too weak. Sometimes our neighbours want the things which we have, or have the things which we want, and we both fight, till they take ours, or give us theirs. It is a very justifiable cause of a war, to invade a country after the people have been wasted by famine, destroyed by pestilence, or embroiled by factions among themselves. It is justifiable to enter into war against our nearest ally, when one of his towns lies convenient for us, or a territory of land, that would render our dominions round and complete. If a prince sends forces into a nation, where the people are poor and ignorant, he may lawfully put half of them to death, and make slaves of the rest, in order to civilize and reduce them from their barbarous way of living. It is a very kingly, honourable, and frequent practice, when one prince desires the assistance of another, to secure him against an invasion, that the assistant, when he has driven out the invader, should seize on the dominions himself, and kill, imprison, or banish, the prince he came to relieve. Alliance by blood, or marriage, is a frequent cause of war between princes; and the nearer the kindred is, the greater their disposition to quarrel; poor nations are hungry, and rich nations are proud; and pride and hunger will ever be at variance. For these reasons, the trade of a soldier is held the most honourable of all others; because a soldier is a Yahoo hired to kill, in cold blood, as many of his own species, who have never offended him, as possibly he can. + +"There is likewise a kind of beggarly princes in Europe, not able to make war by themselves, who hire out their troops to richer nations, for so much a day to each man; of which they keep three- fourths to themselves, and it is the best part of their maintenance: such are those in many northern parts of Europe." + +"What you have told me," said my master, "upon the subject of war, does indeed discover most admirably the effects of that reason you pretend to: however, it is happy that the shame is greater than the danger; and that nature has left you utterly incapable of doing much mischief. For, your mouths lying flat with your faces, you can hardly bite each other to any purpose, unless by consent. Then as to the claws upon your feet before and behind, they are so short and tender, that one of our Yahoos would drive a dozen of yours before him. And therefore, in recounting the numbers of those who have been killed in battle, I cannot but think you have said the thing which is not." + +I could not forbear shaking my head, and smiling a little at his ignorance. And being no stranger to the art of war, I gave him a description of cannons, culverins, muskets, carabines, pistols, bullets, powder, swords, bayonets, battles, sieges, retreats, attacks, undermines, countermines, bombardments, sea fights, ships sunk with a thousand men, twenty thousand killed on each side, dying groans, limbs flying in the air, smoke, noise, confusion, trampling to death under horses' feet, flight, pursuit, victory; fields strewed with carcases, left for food to dogs and wolves and birds of prey; plundering, stripping, ravishing, burning, and destroying. And to set forth the valour of my own dear countrymen, I assured him, "that I had seen them blow up a hundred enemies at once in a siege, and as many in a ship, and beheld the dead bodies drop down in pieces from the clouds, to the great diversion of the spectators." + +I was going on to more particulars, when my master commanded me silence. He said, "whoever understood the nature of Yahoos, might easily believe it possible for so vile an animal to be capable of every action I had named, if their strength and cunning equalled their malice. But as my discourse had increased his abhorrence of the whole species, so he found it gave him a disturbance in his mind to which he was wholly a stranger before. He thought his ears, being used to such abominable words, might, by degrees, admit them with less detestation: that although he hated the Yahoos of this country, yet he no more blamed them for their odious qualities, than he did a gnnayh (a bird of prey) for its cruelty, or a sharp stone for cutting his hoof. But when a creature pretending to reason could be capable of such enormities, he dreaded lest the corruption of that faculty might be worse than brutality itself. He seemed therefore confident, that, instead of reason we were only possessed of some quality fitted to increase our natural vices; as the reflection from a troubled stream returns the image of an ill shapen body, not only larger but more distorted." + +He added, "that he had heard too much upon the subject of war, both in this and some former discourses. There was another point, which a little perplexed him at present. I had informed him, that some of our crew left their country on account of being ruined by law; that I had already explained the meaning of the word; but he was at a loss how it should come to pass, that the law, which was intended for every man's preservation, should be any man's ruin. Therefore he desired to be further satisfied what I meant by law, and the dispensers thereof, according to the present practice in my own country; because he thought nature and reason were sufficient guides for a reasonable animal, as we pretended to be, in showing us what he ought to do, and what to avoid." + +I assured his honour, "that the law was a science in which I had not much conversed, further than by employing advocates, in vain, upon some injustices that had been done me: however, I would give him all the satisfaction I was able." + +I said, "there was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. For example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself. Now, in this case, I, who am the right owner, lie under two great disadvantages: first, my lawyer, being practised almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which is an unnatural office he always attempts with great awkwardness, if not with ill-will. The second disadvantage is, that my lawyer must proceed with great caution, or else he will be reprimanded by the judges, and abhorred by his brethren, as one that would lessen the practice of the law. And therefore I have but two methods to preserve my cow. The first is, to gain over my adversary's lawyer with a double fee, who will then betray his client by insinuating that he hath justice on his side. The second way is for my lawyer to make my cause appear as unjust as he can, by allowing the cow to belong to my adversary: and this, if it be skilfully done, will certainly bespeak the favour of the bench. Now your honour is to know, that these judges are persons appointed to decide all controversies of property, as well as for the trial of criminals, and picked out from the most dexterous lawyers, who are grown old or lazy; and having been biassed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing any thing unbecoming their nature or their office. + +"It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly. + +"In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious, in dwelling upon all circumstances which are not to the purpose. For instance, in the case already mentioned; they never desire to know what claim or title my adversary has to my cow; but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she was milked at home or abroad; what diseases she is subject to, and the like; after which they consult precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue. + +"It is likewise to be observed, that this society has a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide, whether the field left me by my ancestors for six generations belongs to me, or to a stranger three hundred miles off. + +"In the trial of persons accused for crimes against the state, the method is much more short and commendable: the judge first sends to sound the disposition of those in power, after which he can easily hang or save a criminal, strictly preserving all due forms of law." + +Here my master interposing, said, "it was a pity, that creatures endowed with such prodigious abilities of mind, as these lawyers, by the description I gave of them, must certainly be, were not rather encouraged to be instructors of others in wisdom and knowledge." In answer to which I assured his honour, "that in all points out of their own trade, they were usually the most ignorant and stupid generation among us, the most despicable in common conversation, avowed enemies to all knowledge and learning, and equally disposed to pervert the general reason of mankind in every other subject of discourse as in that of their own profession." + +CHAPTER VI. + +[A continuation of the state of England under Queen Anne. The character of a first minister of state in European courts.] + +My master was yet wholly at a loss to understand what motives could incite this race of lawyers to perplex, disquiet, and weary themselves, and engage in a confederacy of injustice, merely for the sake of injuring their fellow-animals; neither could he comprehend what I meant in saying, they did it for hire. Whereupon I was at much pains to describe to him the use of money, the materials it was made of, and the value of the metals; "that when a Yahoo had got a great store of this precious substance, he was able to purchase whatever he had a mind to; the finest clothing, the noblest houses, great tracts of land, the most costly meats and drinks, and have his choice of the most beautiful females. Therefore since money alone was able to perform all these feats, our Yahoos thought they could never have enough of it to spend, or to save, as they found themselves inclined, from their natural bent either to profusion or avarice; that the rich man enjoyed the fruit of the poor man's labour, and the latter were a thousand to one in proportion to the former; that the bulk of our people were forced to live miserably, by labouring every day for small wages, to make a few live plentifully." + +I enlarged myself much on these, and many other particulars to the same purpose; but his honour was still to seek; for he went upon a supposition, that all animals had a title to their share in the productions of the earth, and especially those who presided over the rest. Therefore he desired I would let him know, "what these costly meats were, and how any of us happened to want them?" Whereupon I enumerated as many sorts as came into my head, with the various methods of dressing them, which could not be done without sending vessels by sea to every part of the world, as well for liquors to drink as for sauces and innumerable other conveniences. I assured him "that this whole globe of earth must be at least three times gone round before one of our better female Yahoos could get her breakfast, or a cup to put it in." He said "that must needs be a miserable country which cannot furnish food for its own inhabitants. But what he chiefly wondered at was, how such vast tracts of ground as I described should be wholly without fresh water, and the people put to the necessity of sending over the sea for drink." I replied "that England (the dear place of my nativity) was computed to produce three times the quantity of food more than its inhabitants are able to consume, as well as liquors extracted from grain, or pressed out of the fruit of certain trees, which made excellent drink, and the same proportion in every other convenience of life. But, in order to feed the luxury and intemperance of the males, and the vanity of the females, we sent away the greatest part of our necessary things to other countries, whence, in return, we brought the materials of diseases, folly, and vice, to spend among ourselves. Hence it follows of necessity, that vast numbers of our people are compelled to seek their livelihood by begging, robbing, stealing, cheating, pimping, flattering, suborning, forswearing, forging, gaming, lying, fawning, hectoring, voting, scribbling, star-gazing, poisoning, whoring, canting, libelling, freethinking, and the like occupations:" every one of which terms I was at much pains to make him understand. + +"That wine was not imported among us from foreign countries to supply the want of water or other drinks, but because it was a sort of liquid which made us merry by putting us out of our senses, diverted all melancholy thoughts, begat wild extravagant imaginations in the brain, raised our hopes and banished our fears, suspended every office of reason for a time, and deprived us of the use of our limbs, till we fell into a profound sleep; although it must be confessed, that we always awaked sick and dispirited; and that the use of this liquor filled us with diseases which made our lives uncomfortable and short. + +"But beside all this, the bulk of our people supported themselves by furnishing the necessities or conveniences of life to the rich and to each other. For instance, when I am at home, and dressed as I ought to be, I carry on my body the workmanship of a hundred tradesmen; the building and furniture of my house employ as many more, and five times the number to adorn my wife." + +I was going on to tell him of another sort of people, who get their livelihood by attending the sick, having, upon some occasions, informed his honour that many of my crew had died of diseases. But here it was with the utmost difficulty that I brought him to apprehend what I meant. "He could easily conceive, that a Houyhnhnm, grew weak and heavy a few days before his death, or by some accident might hurt a limb; but that nature, who works all things to perfection, should suffer any pains to breed in our bodies, he thought impossible, and desired to know the reason of so unaccountable an evil." + +I told him "we fed on a thousand things which operated contrary to each other; that we ate when we were not hungry, and drank without the provocation of thirst; that we sat whole nights drinking strong liquors, without eating a bit, which disposed us to sloth, inflamed our bodies, and precipitated or prevented digestion; that prostitute female Yahoos acquired a certain malady, which bred rottenness in the bones of those who fell into their embraces; that this, and many other diseases, were propagated from father to son; so that great numbers came into the world with complicated maladies upon them; that it would be endless to give him a catalogue of all diseases incident to human bodies, for they would not be fewer than five or six hundred, spread over every limb and joint--in short, every part, external and intestine, having diseases appropriated to itself. To remedy which, there was a sort of people bred up among us in the profession, or pretence, of curing the sick. And because I had some skill in the faculty, I would, in gratitude to his honour, let him know the whole mystery and method by which they proceed. + +"Their fundamental is, that all diseases arise from repletion; whence they conclude, that a great evacuation of the body is necessary, either through the natural passage or upwards at the mouth. Their next business is from herbs, minerals, gums, oils, shells, salts, juices, sea-weed, excrements, barks of trees, serpents, toads, frogs, spiders, dead men's flesh and bones, birds, beasts, and fishes, to form a composition, for smell and taste, the most abominable, nauseous, and detestable, they can possibly contrive, which the stomach immediately rejects with loathing, and this they call a vomit; or else, from the same store-house, with some other poisonous additions, they command us to take in at the orifice above or below (just as the physician then happens to be disposed) a medicine equally annoying and disgustful to the bowels; which, relaxing the belly, drives down all before it; and this they call a purge, or a clyster. For nature (as the physicians allege) having intended the superior anterior orifice only for the intromission of solids and liquids, and the inferior posterior for ejection, these artists ingeniously considering that in all diseases nature is forced out of her seat, therefore, to replace her in it, the body must be treated in a manner directly contrary, by interchanging the use of each orifice; forcing solids and liquids in at the anus, and making evacuations at the mouth. + +"But, besides real diseases, we are subject to many that are only imaginary, for which the physicians have invented imaginary cures; these have their several names, and so have the drugs that are proper for them; and with these our female Yahoos are always infested. + +"One great excellency in this tribe, is their skill at prognostics, wherein they seldom fail; their predictions in real diseases, when they rise to any degree of malignity, generally portending death, which is always in their power, when recovery is not: and therefore, upon any unexpected signs of amendment, after they have pronounced their sentence, rather than be accused as false prophets, they know how to approve their sagacity to the world, by a seasonable dose. + +"They are likewise of special use to husbands and wives who are grown weary of their mates; to eldest sons, to great ministers of state, and often to princes." + +I had formerly, upon occasion, discoursed with my master upon the nature of government in general, and particularly of our own excellent constitution, deservedly the wonder and envy of the whole world. But having here accidentally mentioned a minister of state, he commanded me, some time after, to inform him, "what species of Yahoo I particularly meant by that appellation." + +I told him, "that a first or chief minister of state, who was the person I intended to describe, was the creature wholly exempt from joy and grief, love and hatred, pity and anger; at least, makes use of no other passions, but a violent desire of wealth, power, and titles; that he applies his words to all uses, except to the indication of his mind; that he never tells a truth but with an intent that you should take it for a lie; nor a lie, but with a design that you should take it for a truth; that those he speaks worst of behind their backs are in the surest way of preferment; and whenever he begins to praise you to others, or to yourself, you are from that day forlorn. The worst mark you can receive is a promise, especially when it is confirmed with an oath; after which, every wise man retires, and gives over all hopes. + +"There are three methods, by which a man may rise to be chief minister. The first is, by knowing how, with prudence, to dispose of a wife, a daughter, or a sister; the second, by betraying or undermining his predecessor; and the third is, by a furious zeal, in public assemblies, against the corruption's of the court. But a wise prince would rather choose to employ those who practise the last of these methods; because such zealots prove always the most obsequious and subservient to the will and passions of their master. That these ministers, having all employments at their disposal, preserve themselves in power, by bribing the majority of a senate or great council; and at last, by an expedient, called an act of indemnity" (whereof I described the nature to him), "they secure themselves from after-reckonings, and retire from the public laden with the spoils of the nation. + +"The palace of a chief minister is a seminary to breed up others in his own trade: the pages, lackeys, and porters, by imitating their master, become ministers of state in their several districts, and learn to excel in the three principal ingredients, of insolence, lying, and bribery. Accordingly, they have a subaltern court paid to them by persons of the best rank; and sometimes by the force of dexterity and impudence, arrive, through several gradations, to be successors to their lord. + +"He is usually governed by a decayed wench, or favourite footman, who are the tunnels through which all graces are conveyed, and may properly be called, in the last resort, the governors of the kingdom." + +One day, in discourse, my master, having heard me mention the nobility of my country, was pleased to make me a compliment which I could not pretend to deserve: "that he was sure I must have been born of some noble family, because I far exceeded in shape, colour, and cleanliness, all the Yahoos of his nation, although I seemed to fail in strength and agility, which must be imputed to my different way of living from those other brutes; and besides I was not only endowed with the faculty of speech, but likewise with some rudiments of reason, to a degree that, with all his acquaintance, I passed for a prodigy." + +He made me observe, "that among the Houyhnhnms, the white, the sorrel, and the iron-gray, were not so exactly shaped as the bay, the dapple-gray, and the black; nor born with equal talents of mind, or a capacity to improve them; and therefore continued always in the condition of servants, without ever aspiring to match out of their own race, which in that country would be reckoned monstrous and unnatural." + +I made his honour my most humble acknowledgments for the good opinion he was pleased to conceive of me, but assured him at the same time, "that my birth was of the lower sort, having been born of plain honest parents, who were just able to give me a tolerable education; that nobility, among us, was altogether a different thing from the idea he had of it; that our young noblemen are bred from their childhood in idleness and luxury; that, as soon as years will permit, they consume their vigour, and contract odious diseases among lewd females; and when their fortunes are almost ruined, they marry some woman of mean birth, disagreeable person, and unsound constitution (merely for the sake of money), whom they hate and despise. That the productions of such marriages are generally scrofulous, rickety, or deformed children; by which means the family seldom continues above three generations, unless the wife takes care to provide a healthy father, among her neighbours or domestics, in order to improve and continue the breed. That a weak diseased body, a meagre countenance, and sallow complexion, are the true marks of noble blood; and a healthy robust appearance is so disgraceful in a man of quality, that the world concludes his real father to have been a groom or a coachman. The imperfections of his mind run parallel with those of his body, being a composition of spleen, dullness, ignorance, caprice, sensuality, and pride. + +"Without the consent of this illustrious body, no law can be enacted, repealed, or altered: and these nobles have likewise the decision of all our possessions, without appeal."~^ + +CHAPTER VII. + +[The author's great love of his native country. His master's observations upon the constitution and administration of England, as described by the author, with parallel cases and comparisons. His master's observations upon human nature.] + +The reader may be disposed to wonder how I could prevail on myself to give so free a representation of my own species, among a race of mortals who are already too apt to conceive the vilest opinion of humankind, from that entire congruity between me and their Yahoos. But I must freely confess, that the many virtues of those excellent quadrupeds, placed in opposite view to human corruptions, had so far opened my eyes and enlarged my understanding, that I began to view the actions and passions of man in a very different light, and to think the honour of my own kind not worth managing; which, besides, it was impossible for me to do, before a person of so acute a judgment as my master, who daily convinced me of a thousand faults in myself, whereof I had not the least perception before, and which, with us, would never be numbered even among human infirmities. I had likewise learned, from his example, an utter detestation of all falsehood or disguise; and truth appeared so amiable to me, that I determined upon sacrificing every thing to it. + +Let me deal so candidly with the reader as to confess that there was yet a much stronger motive for the freedom I took in my representation of things. I had not yet been a year in this country before I contracted such a love and veneration for the inhabitants, that I entered on a firm resolution never to return to humankind, but to pass the rest of my life among these admirable Houyhnhnms, in the contemplation and practice of every virtue, where I could have no example or incitement to vice. But it was decreed by fortune, my perpetual enemy, that so great a felicity should not fall to my share. However, it is now some comfort to reflect, that in what I said of my countrymen, I extenuated their faults as much as I durst before so strict an examiner; and upon every article gave as favourable a turn as the matter would bear. For, indeed, who is there alive that will not be swayed by his bias and partiality to the place of his birth? + +I have related the substance of several conversations I had with my master during the greatest part of the time I had the honour to be in his service; but have, indeed, for brevity sake, omitted much more than is here set down. + +When I had answered all his questions, and his curiosity seemed to be fully satisfied, he sent for me one morning early, and commanded me to sit down at some distance (an honour which he had never before conferred upon me). He said, "he had been very seriously considering my whole story, as far as it related both to myself and my country; that he looked upon us as a sort of animals, to whose share, by what accident he could not conjecture, some small pittance of reason had fallen, whereof we made no other use, than by its assistance, to aggravate our natural corruptions, and to acquire new ones, which nature had not given us; that we disarmed ourselves of the few abilities she had bestowed; had been very successful in multiplying our original wants, and seemed to spend our whole lives in vain endeavours to supply them by our own inventions; that, as to myself, it was manifest I had neither the strength nor agility of a common Yahoo; that I walked infirmly on my hinder feet; had found out a contrivance to make my claws of no use or defence, and to remove the hair from my chin, which was intended as a shelter from the sun and the weather: lastly, that I could neither run with speed, nor climb trees like my brethren," as he called them, "the Yahoos in his country. + +"That our institutions of government and law were plainly owing to our gross defects in reason, and by consequence in virtue; because reason alone is sufficient to govern a rational creature; which was, therefore, a character we had no pretence to challenge, even from the account I had given of my own people; although he manifestly perceived, that, in order to favour them, I had concealed many particulars, and often said the thing which was not. + +"He was the more confirmed in this opinion, because, he observed, that as I agreed in every feature of my body with other Yahoos, except where it was to my real disadvantage in point of strength, speed, and activity, the shortness of my claws, and some other particulars where nature had no part; so from the representation I had given him of our lives, our manners, and our actions, he found as near a resemblance in the disposition of our minds." He said, "the Yahoos were known to hate one another, more than they did any different species of animals; and the reason usually assigned was, the odiousness of their own shapes, which all could see in the rest, but not in themselves. He had therefore begun to think it not unwise in us to cover our bodies, and by that invention conceal many of our deformities from each other, which would else be hardly supportable. But he now found he had been mistaken, and that the dissensions of those brutes in his country were owing to the same cause with ours, as I had described them. For if," said he, "you throw among five Yahoos as much food as would be sufficient for fifty, they will, instead of eating peaceably, fall together by the ears, each single one impatient to have all to itself; and therefore a servant was usually employed to stand by while they were feeding abroad, and those kept at home were tied at a distance from each other: that if a cow died of age or accident, before a Houyhnhnm could secure it for his own Yahoos, those in the neighbourhood would come in herds to seize it, and then would ensue such a battle as I had described, with terrible wounds made by their claws on both sides, although they seldom were able to kill one another, for want of such convenient instruments of death as we had invented. At other times, the like battles have been fought between the Yahoos of several neighbourhoods, without any visible cause; those of one district watching all opportunities to surprise the next, before they are prepared. But if they find their project has miscarried, they return home, and, for want of enemies, engage in what I call a civil war among themselves. + +"That in some fields of his country there are certain shining stones of several colours, whereof the Yahoos are violently fond: and when part of these stones is fixed in the earth, as it sometimes happens, they will dig with their claws for whole days to get them out; then carry them away, and hide them by heaps in their kennels; but still looking round with great caution, for fear their comrades should find out their treasure." My master said, "he could never discover the reason of this unnatural appetite, or how these stones could be of any use to a Yahoo; but now he believed it might proceed from the same principle of avarice which I had ascribed to mankind. That he had once, by way of experiment, privately removed a heap of these stones from the place where one of his Yahoos had buried it; whereupon the sordid animal, missing his treasure, by his loud lamenting brought the whole herd to the place, there miserably howled, then fell to biting and tearing the rest, began to pine away, would neither eat, nor sleep, nor work, till he ordered a servant privately to convey the stones into the same hole, and hide them as before; which, when his Yahoo had found, he presently recovered his spirits and good humour, but took good care to remove them to a better hiding place, and has ever since been a very serviceable brute." + +My master further assured me, which I also observed myself, "that in the fields where the shining stones abound, the fiercest and most frequent battles are fought, occasioned by perpetual inroads of the neighbouring Yahoos." + +He said, "it was common, when two Yahoos discovered such a stone in a field, and were contending which of them should be the proprietor, a third would take the advantage, and carry it away from them both;" which my master would needs contend to have some kind of resemblance with our suits at law; wherein I thought it for our credit not to undeceive him; since the decision he mentioned was much more equitable than many decrees among us; because the plaintiff and defendant there lost nothing beside the stone they contended for: whereas our courts of equity would never have dismissed the cause, while either of them had any thing left. + +My master, continuing his discourse, said, "there was nothing that rendered the Yahoos more odious, than their undistinguishing appetite to devour every thing that came in their way, whether herbs, roots, berries, the corrupted flesh of animals, or all mingled together: and it was peculiar in their temper, that they were fonder of what they could get by rapine or stealth, at a greater distance, than much better food provided for them at home. If their prey held out, they would eat till they were ready to burst; after which, nature had pointed out to them a certain root that gave them a general evacuation. + +"There was also another kind of root, very juicy, but somewhat rare and difficult to be found, which the Yahoos sought for with much eagerness, and would suck it with great delight; it produced in them the same effects that wine has upon us. It would make them sometimes hug, and sometimes tear one another; they would howl, and grin, and chatter, and reel, and tumble, and then fall asleep in the mud." + +I did indeed observe that the Yahoos were the only animals in this country subject to any diseases; which, however, were much fewer than horses have among us, and contracted, not by any ill-treatment they meet with, but by the nastiness and greediness of that sordid brute. Neither has their language any more than a general appellation for those maladies, which is borrowed from the name of the beast, and called hnea-yahoo, or Yahoo's evil; and the cure prescribed is a mixture of their own dung and urine, forcibly put down the Yahoo's throat. This I have since often known to have been taken with success, and do here freely recommend it to my countrymen for the public good, as an admirable specific against all diseases produced by repletion. + +"As to learning, government, arts, manufactures, and the like," my master confessed, "he could find little or no resemblance between the Yahoos of that country and those in ours; for he only meant to observe what parity there was in our natures. He had heard, indeed, some curious Houyhnhnms observe, that in most herds there was a sort of ruling Yahoo (as among us there is generally some leading or principal stag in a park), who was always more deformed in body, and mischievous in disposition, than any of the rest; that this leader had usually a favourite as like himself as he could get, whose employment was to lick his master's feet and posteriors, and drive the female Yahoos to his kennel; for which he was now and then rewarded with a piece of ass's flesh. This favourite is hated by the whole herd, and therefore, to protect himself, keeps always near the person of his leader. He usually continues in office till a worse can be found; but the very moment he is discarded, his successor, at the head of all the Yahoos in that district, young and old, male and female, come in a body, and discharge their excrements upon him from head to foot. But how far this might be applicable to our courts, and favourites, and ministers of state, my master said I could best determine." + +I durst make no return to this malicious insinuation, which debased human understanding below the sagacity of a common hound, who has judgment enough to distinguish and follow the cry of the ablest dog in the pack, without being ever mistaken. + +My master told me, "there were some qualities remarkable in the Yahoos, which he had not observed me to mention, or at least very slightly, in the accounts I had given of humankind." He said, "those animals, like other brutes, had their females in common; but in this they differed, that the she Yahoo would admit the males while she was pregnant; and that the hes would quarrel and fight with the females, as fiercely as with each other; both which practices were such degrees of infamous brutality, as no other sensitive creature ever arrived at. + +"Another thing he wondered at in the Yahoos, was their strange disposition to nastiness and dirt; whereas there appears to be a natural love of cleanliness in all other animals." As to the two former accusations, I was glad to let them pass without any reply, because I had not a word to offer upon them in defence of my species, which otherwise I certainly had done from my own inclinations. But I could have easily vindicated humankind from the imputation of singularity upon the last article, if there had been any swine in that country (as unluckily for me there were not), which, although it may be a sweeter quadruped than a Yahoo, cannot, I humbly conceive, in justice, pretend to more cleanliness; and so his honour himself must have owned, if he had seen their filthy way of feeding, and their custom of wallowing and sleeping in the mud. + +My master likewise mentioned another quality which his servants had discovered in several Yahoos, and to him was wholly unaccountable. He said, "a fancy would sometimes take a Yahoo to retire into a corner, to lie down, and howl, and groan, and spurn away all that came near him, although he were young and fat, wanted neither food nor water, nor did the servant imagine what could possibly ail him. And the only remedy they found was, to set him to hard work, after which he would infallibly come to himself." To this I was silent out of partiality to my own kind; yet here I could plainly discover the true seeds of spleen, which only seizes on the lazy, the luxurious, and the rich; who, if they were forced to undergo the same regimen, I would undertake for the cure. + +His honour had further observed, "that a female Yahoo would often stand behind a bank or a bush, to gaze on the young males passing by, and then appear, and hide, using many antic gestures and grimaces, at which time it was observed that she had a most offensive smell; and when any of the males advanced, would slowly retire, looking often back, and with a counterfeit show of fear, run off into some convenient place, where she knew the male would follow her. + +"At other times, if a female stranger came among them, three or four of her own sex would get about her, and stare, and chatter, and grin, and smell her all over; and then turn off with gestures, that seemed to express contempt and disdain." + +Perhaps my master might refine a little in these speculations, which he had drawn from what he observed himself, or had been told him by others; however, I could not reflect without some amazement, and much sorrow, that the rudiments of lewdness, coquetry, censure, and scandal, should have place by instinct in womankind. + +I expected every moment that my master would accuse the Yahoos of those unnatural appetites in both sexes, so common among us. But nature, it seems, has not been so expert a school-mistress; and these politer pleasures are entirely the productions of art and reason on our side of the globe. + +CHAPTER VIII. + +[The author relates several particulars of the Yahoos. The great virtues of the Houyhnhnms. The education and exercise of their youth. Their general assembly.] + +As I ought to have understood human nature much better than I supposed it possible for my master to do, so it was easy to apply the character he gave of the Yahoos to myself and my countrymen; and I believed I could yet make further discoveries, from my own observation. I therefore often begged his honour to let me go among the herds of Yahoos in the neighbourhood; to which he always very graciously consented, being perfectly convinced that the hatred I bore these brutes would never suffer me to be corrupted by them; and his honour ordered one of his servants, a strong sorrel nag, very honest and good-natured, to be my guard; without whose protection I durst not undertake such adventures. For I have already told the reader how much I was pestered by these odious animals, upon my first arrival; and I afterwards failed very narrowly, three or four times, of falling into their clutches, when I happened to stray at any distance without my hanger. And I have reason to believe they had some imagination that I was of their own species, which I often assisted myself by stripping up my sleeves, and showing my naked arms and breasts in their sight, when my protector was with me. At which times they would approach as near as they durst, and imitate my actions after the manner of monkeys, but ever with great signs of hatred; as a tame jackdaw with cap and stockings is always persecuted by the wild ones, when he happens to be got among them. + +They are prodigiously nimble from their infancy. However, I once caught a young male of three years old, and endeavoured, by all marks of tenderness, to make it quiet; but the little imp fell a squalling, and scratching, and biting with such violence, that I was forced to let it go; and it was high time, for a whole troop of old ones came about us at the noise, but finding the cub was safe (for away it ran), and my sorrel nag being by, they durst not venture near us. I observed the young animal's flesh to smell very rank, and the stink was somewhat between a weasel and a fox, but much more disagreeable. I forgot another circumstance (and perhaps I might have the reader's pardon if it were wholly omitted), that while I held the odious vermin in my hands, it voided its filthy excrements of a yellow liquid substance all over my clothes; but by good fortune there was a small brook hard by, where I washed myself as clean as I could; although I durst not come into my master's presence until I were sufficiently aired. + +By what I could discover, the Yahoos appear to be the most unteachable of all animals: their capacity never reaching higher than to draw or carry burdens. Yet I am of opinion, this defect arises chiefly from a perverse, restive disposition; for they are cunning, malicious, treacherous, and revengeful. They are strong and hardy, but of a cowardly spirit, and, by consequence, insolent, abject, and cruel. It is observed, that the red haired of both sexes are more libidinous and mischievous than the rest, whom yet they much exceed in strength and activity. + +The Houyhnhnms keep the Yahoos for present use in huts not far from the house; but the rest are sent abroad to certain fields, where they dig up roots, eat several kinds of herbs, and search about for carrion, or sometimes catch weasels and luhimuhs (a sort of wild rat), which they greedily devour. Nature has taught them to dig deep holes with their nails on the side of a rising ground, wherein they lie by themselves; only the kennels of the females are larger, sufficient to hold two or three cubs. + +They swim from their infancy like frogs, and are able to continue long under water, where they often take fish, which the females carry home to their young. And, upon this occasion, I hope the reader will pardon my relating an odd adventure. + +Being one day abroad with my protector the sorrel nag, and the weather exceeding hot, I entreated him to let me bathe in a river that was near. He consented, and I immediately stripped myself stark naked, and went down softly into the stream. It happened that a young female Yahoo, standing behind a bank, saw the whole proceeding, and inflamed by desire, as the nag and I conjectured, came running with all speed, and leaped into the water, within five yards of the place where I bathed. I was never in my life so terribly frightened. The nag was grazing at some distance, not suspecting any harm. She embraced me after a most fulsome manner. I roared as loud as I could, and the nag came galloping towards me, whereupon she quitted her grasp, with the utmost reluctancy, and leaped upon the opposite bank, where she stood gazing and howling all the time I was putting on my clothes. + +This was a matter of diversion to my master and his family, as well as of mortification to myself. For now I could no longer deny that I was a real Yahoo in every limb and feature, since the females had a natural propensity to me, as one of their own species. Neither was the hair of this brute of a red colour (which might have been some excuse for an appetite a little irregular), but black as a sloe, and her countenance did not make an appearance altogether so hideous as the rest of her kind; for I think she could not be above eleven years old. + +Having lived three years in this country, the reader, I suppose, will expect that I should, like other travellers, give him some account of the manners and customs of its inhabitants, which it was indeed my principal study to learn. + +As these noble Houyhnhnms are endowed by nature with a general disposition to all virtues, and have no conceptions or ideas of what is evil in a rational creature, so their grand maxim is, to cultivate reason, and to be wholly governed by it. Neither is reason among them a point problematical, as with us, where men can argue with plausibility on both sides of the question, but strikes you with immediate conviction; as it must needs do, where it is not mingled, obscured, or discoloured, by passion and interest. I remember it was with extreme difficulty that I could bring my master to understand the meaning of the word opinion, or how a point could be disputable; because reason taught us to affirm or deny only where we are certain; and beyond our knowledge we cannot do either. So that controversies, wranglings, disputes, and positiveness, in false or dubious propositions, are evils unknown among the Houyhnhnms. In the like manner, when I used to explain to him our several systems of natural philosophy, he would laugh, "that a creature pretending to reason, should value itself upon the knowledge of other people's conjectures, and in things where that knowledge, if it were certain, could be of no use." Wherein he agreed entirely with the sentiments of Socrates, as Plato delivers them; which I mention as the highest honour I can do that prince of philosophers. I have often since reflected, what destruction such doctrine would make in the libraries of Europe; and how many paths of fame would be then shut up in the learned world. + +Friendship and benevolence are the two principal virtues among the Houyhnhnms; and these not confined to particular objects, but universal to the whole race; for a stranger from the remotest part is equally treated with the nearest neighbour, and wherever he goes, looks upon himself as at home. They preserve decency and civility in the highest degrees, but are altogether ignorant of ceremony. They have no fondness for their colts or foals, but the care they take in educating them proceeds entirely from the dictates of reason. And I observed my master to show the same affection to his neighbour's issue, that he had for his own. They will have it that nature teaches them to love the whole species, and it is reason only that makes a distinction of persons, where there is a superior degree of virtue. + +When the matron Houyhnhnms have produced one of each sex, they no longer accompany with their consorts, except they lose one of their issue by some casualty, which very seldom happens; but in such a case they meet again; or when the like accident befalls a person whose wife is past bearing, some other couple bestow on him one of their own colts, and then go together again until the mother is pregnant. This caution is necessary, to prevent the country from being overburdened with numbers. But the race of inferior Houyhnhnms, bred up to be servants, is not so strictly limited upon this article: these are allowed to produce three of each sex, to be domestics in the noble families. + +In their marriages, they are exactly careful to choose such colours as will not make any disagreeable mixture in the breed. Strength is chiefly valued in the male, and comeliness in the female; not upon the account of love, but to preserve the race from degenerating; for where a female happens to excel in strength, a consort is chosen, with regard to comeliness. + +Courtship, love, presents, jointures, settlements have no place in their thoughts, or terms whereby to express them in their language. The young couple meet, and are joined, merely because it is the determination of their parents and friends; it is what they see done every day, and they look upon it as one of the necessary actions of a reasonable being. But the violation of marriage, or any other unchastity, was never heard of; and the married pair pass their lives with the same friendship and mutual benevolence, that they bear to all others of the same species who come in their way, without jealousy, fondness, quarrelling, or discontent. + +In educating the youth of both sexes, their method is admirable, and highly deserves our imitation. These are not suffered to taste a grain of oats, except upon certain days, till eighteen years old; nor milk, but very rarely; and in summer they graze two hours in the morning, and as many in the evening, which their parents likewise observe; but the servants are not allowed above half that time, and a great part of their grass is brought home, which they eat at the most convenient hours, when they can be best spared from work. + +Temperance, industry, exercise, and cleanliness, are the lessons equally enjoined to the young ones of both sexes: and my master thought it monstrous in us, to give the females a different kind of education from the males, except in some articles of domestic management; whereby, as he truly observed, one half of our natives were good for nothing but bringing children into the world; and to trust the care of our children to such useless animals, he said, was yet a greater instance of brutality. + +But the Houyhnhnms train up their youth to strength, speed, and hardiness, by exercising them in running races up and down steep hills, and over hard stony grounds; and when they are all in a sweat, they are ordered to leap over head and ears into a pond or river. Four times a year the youth of a certain district meet to show their proficiency in running and leaping, and other feats of strength and agility; where the victor is rewarded with a song in his or her praise. On this festival, the servants drive a herd of Yahoos into the field, laden with hay, and oats, and milk, for a repast to the Houyhnhnms; after which, these brutes are immediately driven back again, for fear of being noisome to the assembly. + +Every fourth year, at the vernal equinox, there is a representative council of the whole nation, which meets in a plain about twenty miles from our house, and continues about five or six days. Here they inquire into the state and condition of the several districts; whether they abound or be deficient in hay or oats, or cows, or Yahoos; and wherever there is any want (which is but seldom) it is immediately supplied by unanimous consent and contribution. Here likewise the regulation of children is settled: as for instance, if a Houyhnhnm has two males, he changes one of them with another that has two females; and when a child has been lost by any casualty, where the mother is past breeding, it is determined what family in the district shall breed another to supply the loss. + +CHAPTER IX. + +[A grand debate at the general assembly of the Houyhnhnms, and how it was determined. The learning of the Houyhnhnms. Their buildings. Their manner of burials. The defectiveness of their language.] + +One of these grand assemblies was held in my time, about three months before my departure, whither my master went as the representative of our district. In this council was resumed their old debate, and indeed the only debate that ever happened in their country; whereof my master, after his return, give me a very particular account. + +The question to be debated was, "whether the Yahoos should be exterminated from the face of the earth?" One of the members for the affirmative offered several arguments of great strength and weight, alleging, "that as the Yahoos were the most filthy, noisome, and deformed animals which nature ever produced, so they were the most restive and indocible, mischievous and malicious; they would privately suck the teats of the Houyhnhnms' cows, kill and devour their cats, trample down their oats and grass, if they were not continually watched, and commit a thousand other extravagancies." He took notice of a general tradition, "that Yahoos had not been always in their country; but that many ages ago, two of these brutes appeared together upon a mountain; whether produced by the heat of the sun upon corrupted mud and slime, or from the ooze and froth of the sea, was never known; that these Yahoos engendered, and their brood, in a short time, grew so numerous as to overrun and infest the whole nation; that the Houyhnhnms, to get rid of this evil, made a general hunting, and at last enclosed the whole herd; and destroying the elder, every Houyhnhnm kept two young ones in a kennel, and brought them to such a degree of tameness, as an animal, so savage by nature, can be capable of acquiring, using them for draught and carriage; that there seemed to be much truth in this tradition, and that those creatures could not be yinhniamshy (or aborigines of the land), because of the violent hatred the Houyhnhnms, as well as all other animals, bore them, which, although their evil disposition sufficiently deserved, could never have arrived at so high a degree if they had been aborigines, or else they would have long since been rooted out; that the inhabitants, taking a fancy to use the service of the Yahoos, had, very imprudently, neglected to cultivate the breed of asses, which are a comely animal, easily kept, more tame and orderly, without any offensive smell, strong enough for labour, although they yield to the other in agility of body, and if their braying be no agreeable sound, it is far preferable to the horrible howlings of the Yahoos." + +Several others declared their sentiments to the same purpose, when my master proposed an expedient to the assembly, whereof he had indeed borrowed the hint from me. "He approved of the tradition mentioned by the honourable member who spoke before, and affirmed, that the two Yahoos said to be seen first among them, had been driven thither over the sea; that coming to land, and being forsaken by their companions, they retired to the mountains, and degenerating by degrees, became in process of time much more savage than those of their own species in the country whence these two originals came. The reason of this assertion was, that he had now in his possession a certain wonderful Yahoo (meaning myself) which most of them had heard of, and many of them had seen. He then related to them how he first found me; that my body was all covered with an artificial composure of the skins and hairs of other animals; that I spoke in a language of my own, and had thoroughly learned theirs; that I had related to him the accidents which brought me thither; that when he saw me without my covering, I was an exact Yahoo in every part, only of a whiter colour, less hairy, and with shorter claws. He added, how I had endeavoured to persuade him, that in my own and other countries, the Yahoos acted as the governing, rational animal, and held the Houyhnhnms in servitude; that he observed in me all the qualities of a Yahoo, only a little more civilized by some tincture of reason, which, however, was in a degree as far inferior to the Houyhnhnm race, as the Yahoos of their country were to me; that, among other things, I mentioned a custom we had of castrating Houyhnhnms when they were young, in order to render them tame; that the operation was easy and safe; that it was no shame to learn wisdom from brutes, as industry is taught by the ant, and building by the swallow (for so I translate the word lyhannh, although it be a much larger fowl); that this invention might be practised upon the younger Yahoos here, which besides rendering them tractable and fitter for use, would in an age put an end to the whole species, without destroying life; that in the mean time the Houyhnhnms should be exhorted to cultivate the breed of asses, which, as they are in all respects more valuable brutes, so they have this advantage, to be fit for service at five years old, which the others are not till twelve." + +This was all my master thought fit to tell me, at that time, of what passed in the grand council. But he was pleased to conceal one particular, which related personally to myself, whereof I soon felt the unhappy effect, as the reader will know in its proper place, and whence I date all the succeeding misfortunes of my life. + +The Houyhnhnms have no letters, and consequently their knowledge is all traditional. But there happening few events of any moment among a people so well united, naturally disposed to every virtue, wholly governed by reason, and cut off from all commerce with other nations, the historical part is easily preserved without burdening their memories. I have already observed that they are subject to no diseases, and therefore can have no need of physicians. However, they have excellent medicines, composed of herbs, to cure accidental bruises and cuts in the pastern or frog of the foot, by sharp stones, as well as other maims and hurts in the several parts of the body. + +They calculate the year by the revolution of the sun and moon, but use no subdivisions into weeks. They are well enough acquainted with the motions of those two luminaries, and understand the nature of eclipses; and this is the utmost progress of their astronomy. + +In poetry, they must be allowed to excel all other mortals; wherein the justness of their similes, and the minuteness as well as exactness of their descriptions, are indeed inimitable. Their verses abound very much in both of these, and usually contain either some exalted notions of friendship and benevolence or the praises of those who were victors in races and other bodily exercises. Their buildings, although very rude and simple, are not inconvenient, but well contrived to defend them from all injuries of and heat. They have a kind of tree, which at forty years old loosens in the root, and falls with the first storm: it grows very straight, and being pointed like stakes with a sharp stone (for the Houyhnhnms know not the use of iron), they stick them erect in the ground, about ten inches asunder, and then weave in oat straw, or sometimes wattles, between them. The roof is made after the same manner, and so are the doors. + +The Houyhnhnms use the hollow part, between the pastern and the hoof of their fore-foot, as we do our hands, and this with greater dexterity than I could at first imagine. I have seen a white mare of our family thread a needle (which I lent her on purpose) with that joint. They milk their cows, reap their oats, and do all the work which requires hands, in the same manner. They have a kind of hard flints, which, by grinding against other stones, they form into instruments, that serve instead of wedges, axes, and hammers. With tools made of these flints, they likewise cut their hay, and reap their oats, which there grow naturally in several fields; the Yahoos draw home the sheaves in carriages, and the servants tread them in certain covered huts to get out the grain, which is kept in stores. They make a rude kind of earthen and wooden vessels, and bake the former in the sun. + +If they can avoid casualties, they die only of old age, and are buried in the obscurest places that can be found, their friends and relations expressing neither joy nor grief at their departure; nor does the dying person discover the least regret that he is leaving the world, any more than if he were upon returning home from a visit to one of his neighbours. I remember my master having once made an appointment with a friend and his family to come to his house, upon some affair of importance: on the day fixed, the mistress and her two children came very late; she made two excuses, first for her husband, who, as she said, happened that very morning to shnuwnh. The word is strongly expressive in their language, but not easily rendered into English; it signifies, "to retire to his first mother." Her excuse for not coming sooner, was, that her husband dying late in the morning, she was a good while consulting her servants about a convenient place where his body should be laid; and I observed, she behaved herself at our house as cheerfully as the rest. She died about three months after. + +They live generally to seventy, or seventy-five years, very seldom to fourscore. Some weeks before their death, they feel a gradual decay; but without pain. During this time they are much visited by their friends, because they cannot go abroad with their usual ease and satisfaction. However, about ten days before their death, which they seldom fail in computing, they return the visits that have been made them by those who are nearest in the neighbourhood, being carried in a convenient sledge drawn by Yahoos; which vehicle they use, not only upon this occasion, but when they grow old, upon long journeys, or when they are lamed by any accident: and therefore when the dying Houyhnhnms return those visits, they take a solemn leave of their friends, as if they were going to some remote part of the country, where they designed to pass the rest of their lives. + +I know not whether it may be worth observing, that the Houyhnhnms have no word in their language to express any thing that is evil, except what they borrow from the deformities or ill qualities of the Yahoos. Thus they denote the folly of a servant, an omission of a child, a stone that cuts their feet, a continuance of foul or unseasonable weather, and the like, by adding to each the epithet of Yahoo. For instance, hhnm Yahoo; whnaholm Yahoo, ynlhmndwihlma Yahoo, and an ill-contrived house ynholmhnmrohlnw Yahoo. + +I could, with great pleasure, enlarge further upon the manners and virtues of this excellent people; but intending in a short time to publish a volume by itself, expressly upon that subject, I refer the reader thither; and, in the mean time, proceed to relate my own sad catastrophe. + +CHAPTER X. + +[The author's economy, and happy life, among the Houyhnhnms. His great improvement in virtue by conversing with them. Their conversations. The author has notice given him by his master, that he must depart from the country. He falls into a swoon for grief; but submits. He contrives and finishes a canoe by the help of a fellow-servant, and puts to sea at a venture.] + +I had settled my little economy to my own heart's content. My master had ordered a room to be made for me, after their manner, about six yards from the house: the sides and floors of which I plastered with clay, and covered with rush-mats of my own contriving. I had beaten hemp, which there grows wild, and made of it a sort of ticking; this I filled with the feathers of several birds I had taken with springes made of Yahoos' hairs, and were excellent food. I had worked two chairs with my knife, the sorrel nag helping me in the grosser and more laborious part. When my clothes were worn to rags, I made myself others with the skins of rabbits, and of a certain beautiful animal, about the same size, called nnuhnoh, the skin of which is covered with a fine down. Of these I also made very tolerable stockings. I soled my shoes with wood, which I cut from a tree, and fitted to the upper-leather; and when this was worn out, I supplied it with the skins of Yahoos dried in the sun. I often got honey out of hollow trees, which I mingled with water, or ate with my bread. No man could more verify the truth of these two maxims, "That nature is very easily satisfied;" and, "That necessity is the mother of invention." I enjoyed perfect health of body, and tranquillity of mind; I did not feel the treachery or inconstancy of a friend, nor the injuries of a secret or open enemy. I had no occasion of bribing, flattering, or pimping, to procure the favour of any great man, or of his minion; I wanted no fence against fraud or oppression: here was neither physician to destroy my body, nor lawyer to ruin my fortune; no informer to watch my words and actions, or forge accusations against me for hire: here were no gibers, censurers, backbiters, pickpockets, highwaymen, housebreakers, attorneys, bawds, buffoons, gamesters, politicians, wits, splenetics, tedious talkers, controvertists, ravishers, murderers, robbers, virtuosos; no leaders, or followers, of party and faction; no encouragers to vice, by seducement or examples; no dungeon, axes, gibbets, whipping-posts, or pillories; no cheating shopkeepers or mechanics; no pride, vanity, or affectation; no fops, bullies, drunkards, strolling whores, or poxes; no ranting, lewd, expensive wives; no stupid, proud pedants; no importunate, overbearing, quarrelsome, noisy, roaring, empty, conceited, swearing companions; no scoundrels raised from the dust upon the merit of their vices, or nobility thrown into it on account of their virtues; no lords, fiddlers, judges, or dancing-masters. + +I had the favour of being admitted to several Houyhnhnms, who came to visit or dine with my master; where his honour graciously suffered me to wait in the room, and listen to their discourse. Both he and his company would often descend to ask me questions, and receive my answers. I had also sometimes the honour of attending my master in his visits to others. I never presumed to speak, except in answer to a question; and then I did it with inward regret, because it was a loss of so much time for improving myself; but I was infinitely delighted with the station of an humble auditor in such conversations, where nothing passed but what was useful, expressed in the fewest and most significant words; where, as I have already said, the greatest decency was observed, without the least degree of ceremony; where no person spoke without being pleased himself, and pleasing his companions; where there was no interruption, tediousness, heat, or difference of sentiments. They have a notion, that when people are met together, a short silence does much improve conversation: this I found to be true; for during those little intermissions of talk, new ideas would arise in their minds, which very much enlivened the discourse. Their subjects are, generally on friendship and benevolence, on order and economy; sometimes upon the visible operations of nature, or ancient traditions; upon the bounds and limits of virtue; upon the unerring rules of reason, or upon some determinations to be taken at the next great assembly: and often upon the various excellences of poetry. I may add, without vanity, that my presence often gave them sufficient matter for discourse, because it afforded my master an occasion of letting his friends into the history of me and my country, upon which they were all pleased to descant, in a manner not very advantageous to humankind: and for that reason I shall not repeat what they said; only I may be allowed to observe, that his honour, to my great admiration, appeared to understand the nature of Yahoos much better than myself. He went through all our vices and follies, and discovered many, which I had never mentioned to him, by only supposing what qualities a Yahoo of their country, with a small proportion of reason, might be capable of exerting; and concluded, with too much probability, "how vile, as well as miserable, such a creature must be." + +I freely confess, that all the little knowledge I have of any value, was acquired by the lectures I received from my master, and from hearing the discourses of him and his friends; to which I should be prouder to listen, than to dictate to the greatest and wisest assembly in Europe. I admired the strength, comeliness, and speed of the inhabitants; and such a constellation of virtues, in such amiable persons, produced in me the highest veneration. At first, indeed, I did not feel that natural awe, which the Yahoos and all other animals bear toward them; but it grew upon me by decrees, much sooner than I imagined, and was mingled with a respectful love and gratitude, that they would condescend to distinguish me from the rest of my species. + +When I thought of my family, my friends, my countrymen, or the human race in general, I considered them, as they really were, Yahoos in shape and disposition, perhaps a little more civilized, and qualified with the gift of speech; but making no other use of reason, than to improve and multiply those vices whereof their brethren in this country had only the share that nature allotted them. When I happened to behold the reflection of my own form in a lake or fountain, I turned away my face in horror and detestation of myself, and could better endure the sight of a common Yahoo than of my own person. By conversing with the Houyhnhnms, and looking upon them with delight, I fell to imitate their gait and gesture, which is now grown into a habit; and my friends often tell me, in a blunt way, "that I trot like a horse;" which, however, I take for a great compliment. Neither shall I disown, that in speaking I am apt to fall into the voice and manner of the Houyhnhnms, and hear myself ridiculed on that account, without the least mortification. + +In the midst of all this happiness, and when I looked upon myself to be fully settled for life, my master sent for me one morning a little earlier than his usual hour. I observed by his countenance that he was in some perplexity, and at a loss how to begin what he had to speak. After a short silence, he told me, "he did not know how I would take what he was going to say: that in the last general assembly, when the affair of the Yahoos was entered upon, the representatives had taken offence at his keeping a Yahoo (meaning myself) in his family, more like a Houyhnhnm than a brute animal; that he was known frequently to converse with me, as if he could receive some advantage or pleasure in my company; that such a practice was not agreeable to reason or nature, or a thing ever heard of before among them; the assembly did therefore exhort him either to employ me like the rest of my species, or command me to swim back to the place whence I came: that the first of these expedients was utterly rejected by all the Houyhnhnms who had ever seen me at his house or their own; for they alleged, that because I had some rudiments of reason, added to the natural pravity of those animals, it was to be feared I might be able to seduce them into the woody and mountainous parts of the country, and bring them in troops by night to destroy the Houyhnhnms' cattle, as being naturally of the ravenous kind, and averse from labour." + +My master added, "that he was daily pressed by the Houyhnhnms of the neighbourhood to have the assembly's exhortation executed, which he could not put off much longer. He doubted it would be impossible for me to swim to another country; and therefore wished I would contrive some sort of vehicle, resembling those I had described to him, that might carry me on the sea; in which work I should have the assistance of his own servants, as well as those of his neighbours." He concluded, "that for his own part, he could have been content to keep me in his service as long as I lived; because he found I had cured myself of some bad habits and dispositions, by endeavouring, as far as my inferior nature was capable, to imitate the Houyhnhnms." + +I should here observe to the reader, that a decree of the general assembly in this country is expressed by the word hnhloayn, which signifies an exhortation, as near as I can render it; for they have no conception how a rational creature can be compelled, but only advised, or exhorted; because no person can disobey reason, without giving up his claim to be a rational creature. + +I was struck with the utmost grief and despair at my master's discourse; and being unable to support the agonies I was under, I fell into a swoon at his feet. When I came to myself, he told me "that he concluded I had been dead;" for these people are subject to no such imbecilities of nature. I answered in a faint voice, "that death would have been too great a happiness; that although I could not blame the assembly's exhortation, or the urgency of his friends; yet, in my weak and corrupt judgment, I thought it might consist with reason to have been less rigorous; that I could not swim a league, and probably the nearest land to theirs might be distant above a hundred: that many materials, necessary for making a small vessel to carry me off, were wholly wanting in this country; which, however, I would attempt, in obedience and gratitude to his honour, although I concluded the thing to be impossible, and therefore looked on myself as already devoted to destruction; that the certain prospect of an unnatural death was the least of my evils; for, supposing I should escape with life by some strange adventure, how could I think with temper of passing my days among Yahoos, and relapsing into my old corruptions, for want of examples to lead and keep me within the paths of virtue? that I knew too well upon what solid reasons all the determinations of the wise Houyhnhnms were founded, not to be shaken by arguments of mine, a miserable Yahoo; and therefore, after presenting him with my humble thanks for the offer of his servants' assistance in making a vessel, and desiring a reasonable time for so difficult a work, I told him I would endeavour to preserve a wretched being; and if ever I returned to England, was not without hopes of being useful to my own species, by celebrating the praises of the renowned Houyhnhnms, and proposing their virtues to the imitation of mankind." + +My master, in a few words, made me a very gracious reply; allowed me the space of two months to finish my boat; and ordered the sorrel nag, my fellow-servant (for so, at this distance, I may presume to call him), to follow my instruction; because I told my master, "that his help would be sufficient, and I knew he had a tenderness for me." + +In his company, my first business was to go to that part of the coast where my rebellious crew had ordered me to be set on shore. I got upon a height, and looking on every side into the sea; fancied I saw a small island toward the north-east. I took out my pocket glass, and could then clearly distinguish it above five leagues off, as I computed; but it appeared to the sorrel nag to be only a blue cloud: for as he had no conception of any country beside his own, so he could not be as expert in distinguishing remote objects at sea, as we who so much converse in that element. + +After I had discovered this island, I considered no further; but resolved it should if possible, be the first place of my banishment, leaving the consequence to fortune. + +I returned home, and consulting with the sorrel nag, we went into a copse at some distance, where I with my knife, and he with a sharp flint, fastened very artificially after their manner, to a wooden handle, cut down several oak wattles, about the thickness of a walking-staff, and some larger pieces. But I shall not trouble the reader with a particular description of my own mechanics; let it suffice to say, that in six weeks time with the help of the sorrel nag, who performed the parts that required most labour, I finished a sort of Indian canoe, but much larger, covering it with the skins of Yahoos, well stitched together with hempen threads of my own making. My sail was likewise composed of the skins of the same animal; but I made use of the youngest I could get, the older being too tough and thick; and I likewise provided myself with four paddles. I laid in a stock of boiled flesh, of rabbits and fowls, and took with me two vessels, one filled with milk and the other with water. + +I tried my canoe in a large pond, near my master's house, and then corrected in it what was amiss; stopping all the chinks with Yahoos' tallow, till I found it staunch, and able to bear me and my freight; and, when it was as complete as I could possibly make it, I had it drawn on a carriage very gently by Yahoos to the sea-side, under the conduct of the sorrel nag and another servant. + +When all was ready, and the day came for my departure, I took leave of my master and lady and the whole family, my eyes flowing with tears, and my heart quite sunk with grief. But his honour, out of curiosity, and, perhaps, (if I may speak without vanity,) partly out of kindness, was determined to see me in my canoe, and got several of his neighbouring friends to accompany him. I was forced to wait above an hour for the tide; and then observing the wind very fortunately bearing toward the island to which I intended to steer my course, I took a second leave of my master: but as I was going to prostrate myself to kiss his hoof, he did me the honour to raise it gently to my mouth. I am not ignorant how much I have been censured for mentioning this last particular. Detractors are pleased to think it improbable, that so illustrious a person should descend to give so great a mark of distinction to a creature so inferior as I. Neither have I forgotten how apt some travellers are to boast of extraordinary favours they have received. But, if these censurers were better acquainted with the noble and courteous disposition of the Houyhnhnms, they would soon change their opinion. + +I paid my respects to the rest of the Houyhnhnms in his honour's company; then getting into my canoe, I pushed off from shore. + +CHAPTER XI. + +[The author's dangerous voyage. He arrives at New Holland, hoping to settle there. Is wounded with an arrow by one of the natives. Is seized and carried by force into a Portuguese ship. The great civilities of the captain. The author arrives at England.] + +I began this desperate voyage on February 15, 1714-15, at nine o'clock in the morning. The wind was very favourable; however, I made use at first only of my paddles; but considering I should soon be weary, and that the wind might chop about, I ventured to set up my little sail; and thus, with the help of the tide, I went at the rate of a league and a half an hour, as near as I could guess. My master and his friends continued on the shore till I was almost out of sight; and I often heard the sorrel nag (who always loved me) crying out, "Hnuy illa nyha, majah Yahoo;" "Take care of thyself, gentle Yahoo." + +My design was, if possible, to discover some small island uninhabited, yet sufficient, by my labour, to furnish me with the necessaries of life, which I would have thought a greater happiness, than to be first minister in the politest court of Europe; so horrible was the idea I conceived of returning to live in the society, and under the government of Yahoos. For in such a solitude as I desired, I could at least enjoy my own thoughts, and reflect with delight on the virtues of those inimitable Houyhnhnms, without an opportunity of degenerating into the vices and corruptions of my own species. + +The reader may remember what I related, when my crew conspired against me, and confined me to my cabin; how I continued there several weeks without knowing what course we took; and when I was put ashore in the long-boat, how the sailors told me, with oaths, whether true or false, "that they knew not in what part of the world we were." However, I did then believe us to be about 10 degrees southward of the Cape of Good Hope, or about 45 degrees southern latitude, as I gathered from some general words I overheard among them, being I supposed to the south-east in their intended voyage to Madagascar. And although this were little better than conjecture, yet I resolved to steer my course eastward, hoping to reach the south-west coast of New Holland, and perhaps some such island as I desired lying westward of it. The wind was full west, and by six in the evening I computed I had gone eastward at least eighteen leagues; when I spied a very small island about half a league off, which I soon reached. It was nothing but a rock, with one creek naturally arched by the force of tempests. Here I put in my canoe, and climbing a part of the rock, I could plainly discover land to the east, extending from south to north. I lay all night in my canoe; and repeating my voyage early in the morning, I arrived in seven hours to the south-east point of New Holland. This confirmed me in the opinion I have long entertained, that the maps and charts place this country at least three degrees more to the east than it really is; which thought I communicated many years ago to my worthy friend, Mr. Herman Moll, and gave him my reasons for it, although he has rather chosen to follow other authors. + +I saw no inhabitants in the place where I landed, and being unarmed, I was afraid of venturing far into the country. I found some shellfish on the shore, and ate them raw, not daring to kindle a fire, for fear of being discovered by the natives. I continued three days feeding on oysters and limpets, to save my own provisions; and I fortunately found a brook of excellent water, which gave me great relief. + +On the fourth day, venturing out early a little too far, I saw twenty or thirty natives upon a height not above five hundred yards from me. They were stark naked, men, women, and children, round a fire, as I could discover by the smoke. One of them spied me, and gave notice to the rest; five of them advanced toward me, leaving the women and children at the fire. I made what haste I could to the shore, and, getting into my canoe, shoved off: the savages, observing me retreat, ran after me: and before I could get far enough into the sea, discharged an arrow which wounded me deeply on the inside of my left knee: I shall carry the mark to my grave. I apprehended the arrow might be poisoned, and paddling out of the reach of their darts (being a calm day), I made a shift to suck the wound, and dress it as well as I could. + +I was at a loss what to do, for I durst not return to the same landing-place, but stood to the north, and was forced to paddle, for the wind, though very gentle, was against me, blowing north- west. As I was looking about for a secure landing-place, I saw a sail to the north-north-east, which appearing every minute more visible, I was in some doubt whether I should wait for them or not; but at last my detestation of the Yahoo race prevailed: and turning my canoe, I sailed and paddled together to the south, and got into the same creek whence I set out in the morning, choosing rather to trust myself among these barbarians, than live with European Yahoos. I drew up my canoe as close as I could to the shore, and hid myself behind a stone by the little brook, which, as I have already said, was excellent water. + +The ship came within half a league of this creek, and sent her long boat with vessels to take in fresh water (for the place, it seems, was very well known); but I did not observe it, till the boat was almost on shore; and it was too late to seek another hiding-place. The seamen at their landing observed my canoe, and rummaging it all over, easily conjectured that the owner could not be far off. Four of them, well armed, searched every cranny and lurking-hole, till at last they found me flat on my face behind the stone. They gazed awhile in admiration at my strange uncouth dress; my coat made of skins, my wooden-soled shoes, and my furred stockings; whence, however, they concluded, I was not a native of the place, who all go naked. One of the seamen, in Portuguese, bid me rise, and asked who I was. I understood that language very well, and getting upon my feet, said, "I was a poor Yahoo banished from the Houyhnhnms, and desired they would please to let me depart." They admired to hear me answer them in their own tongue, and saw by my complexion I must be a European; but were at a loss to know what I meant by Yahoos and Houyhnhnms; and at the same time fell a-laughing at my strange tone in speaking, which resembled the neighing of a horse. I trembled all the while betwixt fear and hatred. I again desired leave to depart, and was gently moving to my canoe; but they laid hold of me, desiring to know, "what country I was of? whence I came?" with many other questions. I told them "I was born in England, whence I came about five years ago, and then their country and ours were at peace. I therefore hoped they would not treat me as an enemy, since I meant them no harm, but was a poor Yahoo seeking some desolate place where to pass the remainder of his unfortunate life." + +When they began to talk, I thought I never heard or saw any thing more unnatural; for it appeared to me as monstrous as if a dog or a cow should speak in England, or a Yahoo in Houyhnhnmland. The honest Portuguese were equally amazed at my strange dress, and the odd manner of delivering my words, which, however, they understood very well. They spoke to me with great humanity, and said, "they were sure the captain would carry me gratis to Lisbon, whence I might return to my own country; that two of the seamen would go back to the ship, inform the captain of what they had seen, and receive his orders; in the mean time, unless I would give my solemn oath not to fly, they would secure me by force. I thought it best to comply with their proposal. They were very curious to know my story, but I gave them very little satisfaction, and they all conjectured that my misfortunes had impaired my reason. In two hours the boat, which went laden with vessels of water, returned, with the captain's command to fetch me on board. I fell on my knees to preserve my liberty; but all was in vain; and the men, having tied me with cords, heaved me into the boat, whence I was taken into the ship, and thence into the captain's cabin. + +His name was Pedro de Mendez; he was a very courteous and generous person. He entreated me to give some account of myself, and desired to know what I would eat or drink; said, "I should be used as well as himself;" and spoke so many obliging things, that I wondered to find such civilities from a Yahoo. However, I remained silent and sullen; I was ready to faint at the very smell of him and his men. At last I desired something to eat out of my own canoe; but he ordered me a chicken, and some excellent wine, and then directed that I should be put to bed in a very clean cabin. I would not undress myself, but lay on the bed-clothes, and in half an hour stole out, when I thought the crew was at dinner, and getting to the side of the ship, was going to leap into the sea, and swim for my life, rather than continue among Yahoos. But one of the seamen prevented me, and having informed the captain, I was chained to my cabin. + +After dinner, Don Pedro came to me, and desired to know my reason for so desperate an attempt; assured me, "he only meant to do me all the service he was able;" and spoke so very movingly, that at last I descended to treat him like an animal which had some little portion of reason. I gave him a very short relation of my voyage; of the conspiracy against me by my own men; of the country where they set me on shore, and of my five years residence there. All which he looked upon as if it were a dream or a vision; whereat I took great offence; for I had quite forgot the faculty of lying, so peculiar to Yahoos, in all countries where they preside, and, consequently, their disposition of suspecting truth in others of their own species. I asked him, "whether it were the custom in his country to say the thing which was not?" I assured him, "I had almost forgot what he meant by falsehood, and if I had lived a thousand years in Houyhnhnmland, I should never have heard a lie from the meanest servant; that I was altogether indifferent whether he believed me or not; but, however, in return for his favours, I would give so much allowance to the corruption of his nature, as to answer any objection he would please to make, and then he might easily discover the truth." + +The captain, a wise man, after many endeavours to catch me tripping in some part of my story, at last began to have a better opinion of my veracity. But he added, "that since I professed so inviolable an attachment to truth, I must give him my word and honour to bear him company in this voyage, without attempting any thing against my life; or else he would continue me a prisoner till we arrived at Lisbon." I gave him the promise he required; but at the same time protested, "that I would suffer the greatest hardships, rather than return to live among Yahoos." + +Our voyage passed without any considerable accident. In gratitude to the captain, I sometimes sat with him, at his earnest request, and strove to conceal my antipathy against human kind, although it often broke out; which he suffered to pass without observation. But the greatest part of the day I confined myself to my cabin, to avoid seeing any of the crew. The captain had often entreated me to strip myself of my savage dress, and offered to lend me the best suit of clothes he had. This I would not be prevailed on to accept, abhorring to cover myself with any thing that had been on the back of a Yahoo. I only desired he would lend me two clean shirts, which, having been washed since he wore them, I believed would not so much defile me. These I changed every second day, and washed them myself. + +We arrived at Lisbon, Nov. 5, 1715. At our landing, the captain forced me to cover myself with his cloak, to prevent the rabble from crowding about me. I was conveyed to his own house; and at my earnest request he led me up to the highest room backwards. I conjured him "to conceal from all persons what I had told him of the Houyhnhnms; because the least hint of such a story would not only draw numbers of people to see me, but probably put me in danger of being imprisoned, or burnt by the Inquisition." The captain persuaded me to accept a suit of clothes newly made; but I would not suffer the tailor to take my measure; however, Don Pedro being almost of my size, they fitted me well enough. He accoutred me with other necessaries, all new, which I aired for twenty-four hours before I would use them. + +The captain had no wife, nor above three servants, none of which were suffered to attend at meals; and his whole deportment was so obliging, added to very good human understanding, that I really began to tolerate his company. He gained so far upon me, that I ventured to look out of the back window. By degrees I was brought into another room, whence I peeped into the street, but drew my head back in a fright. In a week's time he seduced me down to the door. I found my terror gradually lessened, but my hatred and contempt seemed to increase. I was at last bold enough to walk the street in his company, but kept my nose well stopped with rue, or sometimes with tobacco. + +In ten days, Don Pedro, to whom I had given some account of my domestic affairs, put it upon me, as a matter of honour and conscience, "that I ought to return to my native country, and live at home with my wife and children." He told me, "there was an English ship in the port just ready to sail, and he would furnish me with all things necessary." It would be tedious to repeat his arguments, and my contradictions. He said, "it was altogether impossible to find such a solitary island as I desired to live in; but I might command in my own house, and pass my time in a manner as recluse as I pleased." + +I complied at last, finding I could not do better. I left Lisbon the 24th day of November, in an English merchantman, but who was the master I never inquired. Don Pedro accompanied me to the ship, and lent me twenty pounds. He took kind leave of me, and embraced me at parting, which I bore as well as I could. During this last voyage I had no commerce with the master or any of his men; but, pretending I was sick, kept close in my cabin. On the fifth of December, 1715, we cast anchor in the Downs, about nine in the morning, and at three in the afternoon I got safe to my house at Rotherhith.~^ + +My wife and family received me with great surprise and joy, because they concluded me certainly dead; but I must freely confess the sight of them filled me only with hatred, disgust, and contempt; and the more, by reflecting on the near alliance I had to them. For although, since my unfortunate exile from the Houyhnhnm country, I had compelled myself to tolerate the sight of Yahoos, and to converse with Don Pedro de Mendez, yet my memory and imagination were perpetually filled with the virtues and ideas of those exalted Houyhnhnms. And when I began to consider that, by copulating with one of the Yahoo species I had become a parent of more, it struck me with the utmost shame, confusion, and horror. + +As soon as I entered the house, my wife took me in her arms, and kissed me; at which, having not been used to the touch of that odious animal for so many years, I fell into a swoon for almost an hour. At the time I am writing, it is five years since my last return to England. During the first year, I could not endure my wife or children in my presence; the very smell of them was intolerable; much less could I suffer them to eat in the same room. To this hour they dare not presume to touch my bread, or drink out of the same cup, neither was I ever able to let one of them take me by the hand. The first money I laid out was to buy two young stone-horses, which I keep in a good stable; and next to them, the groom is my greatest favourite, for I feel my spirits revived by the smell he contracts in the stable. My horses understand me tolerably well; I converse with them at least four hours every day. They are strangers to bridle or saddle; they live in great amity with me and friendship to each other. + +CHAPTER XII. + +[The author's veracity. His design in publishing this work. His censure of those travellers who swerve from the truth. The author clears himself from any sinister ends in writing. An objection answered. The method of planting colonies. His native country commended. The right of the crown to those countries described by the author is justified. The difficulty of conquering them. The author takes his last leave of the reader; proposes his manner of living for the future; gives good advice, and concludes.] + +Thus, gentle reader, I have given thee a faithful history of my travels for sixteen years and above seven months: wherein I have not been so studious of ornament as of truth. I could, perhaps, like others, have astonished thee with strange improbable tales; but I rather chose to relate plain matter of fact, in the simplest manner and style; because my principal design was to inform, and not to amuse thee. + +It is easy for us who travel into remote countries, which are seldom visited by Englishmen or other Europeans, to form descriptions of wonderful animals both at sea and land. Whereas a traveller's chief aim should be to make men wiser and better, and to improve their minds by the bad, as well as good, example of what they deliver concerning foreign places. + +I could heartily wish a law was enacted, that every traveller, before he were permitted to publish his voyages, should be obliged to make oath before the Lord High Chancellor, that all he intended to print was absolutely true to the best of his knowledge; for then the world would no longer be deceived, as it usually is, while some writers, to make their works pass the better upon the public, impose the grossest falsities on the unwary reader. I have perused several books of travels with great delight in my younger days; but having since gone over most parts of the globe, and been able to contradict many fabulous accounts from my own observation, it has given me a great disgust against this part of reading, and some indignation to see the credulity of mankind so impudently abused. Therefore, since my acquaintance were pleased to think my poor endeavours might not be unacceptable to my country, I imposed on myself, as a maxim never to be swerved from, that I would strictly adhere to truth; neither indeed can I be ever under the least temptation to vary from it, while I retain in my mind the lectures and example of my noble master and the other illustrious Houyhnhnms of whom I had so long the honour to be an humble hearer. + +- Nec si miserum Fortuna Sinonem Finxit, vanum etiam, mendacemque improba finget. + +I know very well, how little reputation is to be got by writings which require neither genius nor learning, nor indeed any other talent, except a good memory, or an exact journal. I know likewise, that writers of travels, like dictionary-makers, are sunk into oblivion by the weight and bulk of those who come last, and therefore lie uppermost. And it is highly probable, that such travellers, who shall hereafter visit the countries described in this work of mine, may, by detecting my errors (if there be any), and adding many new discoveries of their own, justle me out of vogue, and stand in my place, making the world forget that ever I was an author. This indeed would be too great a mortification, if I wrote for fame: but as my sole intention was the public good, I cannot be altogether disappointed. For who can read of the virtues I have mentioned in the glorious Houyhnhnms, without being ashamed of his own vices, when he considers himself as the reasoning, governing animal of his country? I shall say nothing of those remote nations where Yahoos preside; among which the least corrupted are the Brobdingnagians; whose wise maxims in morality and government it would be our happiness to observe. But I forbear descanting further, and rather leave the judicious reader to his own remarks and application. + +I am not a little pleased that this work of mine can possibly meet with no censurers: for what objections can be made against a writer, who relates only plain facts, that happened in such distant countries, where we have not the least interest, with respect either to trade or negotiations? I have carefully avoided every fault with which common writers of travels are often too justly charged. Besides, I meddle not the least with any party, but write without passion, prejudice, or ill-will against any man, or number of men, whatsoever. I write for the noblest end, to inform and instruct mankind; over whom I may, without breach of modesty, pretend to some superiority, from the advantages I received by conversing so long among the most accomplished Houyhnhnms. I write without any view to profit or praise. I never suffer a word to pass that may look like reflection, or possibly give the least offence, even to those who are most ready to take it. So that I hope I may with justice pronounce myself an author perfectly blameless; against whom the tribes of Answerers, Considerers, Observers, Reflectors, Detectors, Remarkers, will never be able to find matter for exercising their talents. + +I confess, it was whispered to me, "that I was bound in duty, as a subject of England, to have given in a memorial to a secretary of state at my first coming over; because, whatever lands are discovered by a subject belong to the crown." But I doubt whether our conquests in the countries I treat of would be as easy as those of Ferdinando Cortez over the naked Americans. The Lilliputians, I think, are hardly worth the charge of a fleet and army to reduce them; and I question whether it might be prudent or safe to attempt the Brobdingnagians; or whether an English army would be much at their ease with the Flying Island over their heads. The Houyhnhnms indeed appear not to be so well prepared for war, a science to which they are perfect strangers, and especially against missive weapons. However, supposing myself to be a minister of state, I could never give my advice for invading them. Their prudence, unanimity, unacquaintedness with fear, and their love of their country, would amply supply all defects in the military art. Imagine twenty thousand of them breaking into the midst of an European army, confounding the ranks, overturning the carriages, battering the warriors' faces into mummy by terrible yerks from their hinder hoofs; for they would well deserve the character given to Augustus, Recalcitrat undique tutus. But, instead of proposals for conquering that magnanimous nation, I rather wish they were in a capacity, or disposition, to send a sufficient number of their inhabitants for civilizing Europe, by teaching us the first principles of honour, justice, truth, temperance, public spirit, fortitude, chastity, friendship, benevolence, and fidelity. The names of all which virtues are still retained among us in most languages, and are to be met with in modern, as well as ancient authors; which I am able to assert from my own small reading. + +But I had another reason, which made me less forward to enlarge his majesty's dominions by my discoveries. To say the truth, I had conceived a few scruples with relation to the distributive justice of princes upon those occasions. For instance, a crew of pirates are driven by a storm they know not whither; at length a boy discovers land from the topmast; they go on shore to rob and plunder, they see a harmless people, are entertained with kindness; they give the country a new name; they take formal possession of it for their king; they set up a rotten plank, or a stone, for a memorial; they murder two or three dozen of the natives, bring away a couple more, by force, for a sample; return home, and get their pardon. Here commences a new dominion acquired with a title by divine right. Ships are sent with the first opportunity; the natives driven out or destroyed; their princes tortured to discover their gold; a free license given to all acts of inhumanity and lust, the earth reeking with the blood of its inhabitants: and this execrable crew of butchers, employed in so pious an expedition, is a modern colony, sent to convert and civilize an idolatrous and barbarous people! + +But this description, I confess, does by no means affect the British nation, who may be an example to the whole world for their wisdom, care, and justice in planting colonies; their liberal endowments for the advancement of religion and learning; their choice of devout and able pastors to propagate Christianity; their caution in stocking their provinces with people of sober lives and conversations from this the mother kingdom; their strict regard to the distribution of justice, in supplying the civil administration through all their colonies with officers of the greatest abilities, utter strangers to corruption; and, to crown all, by sending the most vigilant and virtuous governors, who have no other views than the happiness of the people over whom they preside, and the honour of the king their master. + +But as those countries which I have described do not appear to have any desire of being conquered and enslaved, murdered or driven out by colonies, nor abound either in gold, silver, sugar, or tobacco, I did humbly conceive, they were by no means proper objects of our zeal, our valour, or our interest. However, if those whom it more concerns think fit to be of another opinion, I am ready to depose, when I shall be lawfully called, that no European did ever visit those countries before me. I mean, if the inhabitants ought to be believed, unless a dispute may arise concerning the two Yahoos, said to have been seen many years ago upon a mountain in Houyhnhnmland. + +But, as to the formality of taking possession in my sovereign's name, it never came once into my thoughts; and if it had, yet, as my affairs then stood, I should perhaps, in point of prudence and self-preservation, have put it off to a better opportunity. + +Having thus answered the only objection that can ever be raised against me as a traveller, I here take a final leave of all my courteous readers, and return to enjoy my own speculations in my little garden at Redriff; to apply those excellent lessons of virtue which I learned among the Houyhnhnms; to instruct the Yahoos of my own family, is far as I shall find them docible animals; to behold my figure often in a glass, and thus, if possible, habituate myself by time to tolerate the sight of a human creature; to lament the brutality to Houyhnhnms in my own country, but always treat their persons with respect, for the sake of my noble master, his family, his friends, and the whole Houyhnhnm race, whom these of ours have the honour to resemble in all their lineaments, however their intellectuals came to degenerate. + +I began last week to permit my wife to sit at dinner with me, at the farthest end of a long table; and to answer (but with the utmost brevity) the few questions I asked her. Yet, the smell of a Yahoo continuing very offensive, I always keep my nose well stopped with rue, lavender, or tobacco leaves. And, although it be hard for a man late in life to remove old habits, I am not altogether out of hopes, in some time, to suffer a neighbour Yahoo in my company, without the apprehensions I am yet under of his teeth or his claws. + +My reconcilement to the Yahoo kind in general might not be so difficult, if they would be content with those vices and follies only which nature has entitled them to. I am not in the least provoked at the sight of a lawyer, a pickpocket, a colonel, a fool, a lord, a gamester, a politician, a whoremonger, a physician, an evidence, a suborner, an attorney, a traitor, or the like; this is all according to the due course of things: but when I behold a lump of deformity and diseases, both in body and mind, smitten with pride, it immediately breaks all the measures of my patience; neither shall I be ever able to comprehend how such an animal, and such a vice, could tally together. The wise and virtuous Houyhnhnms, who abound in all excellences that can adorn a rational creature, have no name for this vice in their language, which has no terms to express any thing that is evil, except those whereby they describe the detestable qualities of their Yahoos, among which they were not able to distinguish this of pride, for want of thoroughly understanding human nature, as it shows itself in other countries where that animal presides. But I, who had more experience, could plainly observe some rudiments of it among the wild Yahoos. + +But the Houyhnhnms, who live under the government of reason, are no more proud of the good qualities they possess, than I should be for not wanting a leg or an arm; which no man in his wits would boast of, although he must be miserable without them. I dwell the longer upon this subject from the desire I have to make the society of an English Yahoo by any means not insupportable; and therefore I here entreat those who have any tincture of this absurd vice, that they will not presume to come in my sight. + +^~ A stang is a pole or perch; sixteen feet and a half. + +^~ An act of parliament has been since passed by which some breaches of trust have been made capital. + +^~ Britannia.--Sir W. Scott. + +^~ London.--Sir W. Scott. + +^~ This is the revised text adopted by Dr. Hawksworth (1766). The above paragraph in the original editions (1726) takes another form, commencing:- "I told him that should I happen to live in a kingdom where lots were in vogue," &c. The names Tribnia and Langdon an not mentioned, and the "close stool" and its signification do not occur. + +^~ This paragraph is not in the original editions. + +^~ The original editions and Hawksworth's have Rotherhith here, though earlier in the work, Redriff is said to have been Gulliver's home in England. diff --git a/data/v3/samples/through_the_looking_glass.lewis_carroll.sst b/data/v3/samples/through_the_looking_glass.lewis_carroll.sst new file mode 100644 index 0000000..729f621 --- /dev/null +++ b/data/v3/samples/through_the_looking_glass.lewis_carroll.sst @@ -0,0 +1,2347 @@ +% SiSU 0.72 + +@title: Through The Looking-Glass + +@creator: Carroll, Lewis + +@date: + :published: 1871 + :created: 1871 + :issued: 1871 + :available: 1871 + :added_to_site: 2004-04-12 + +% 2005-10-30 + +@rights: + :copyright: Lewis Carroll + :license: Public Domain + +@classify: + :topic_register: SiSU:markup sample:book;book:novel:fantasy|children's fiction + :type: Book + +@links: +{ Through the Looking Glass @ Wikipedia }http://en.wikipedia.org/wiki/Through_the_Looking-Glass +{ Lewis Carroll @ Wikipedia }http://en.wikipedia.org/wiki/Lewis_Carroll + { SiSU }http://sisudoc.org/ + { sources / git }http://sources.sisudoc.org/ + +@make: + :headings: none; none; none; CHAPTER; + :breaks: new=3; break=4 + +:A~ @title @author \\ The Millennium Fulcrum Edition 1.7 [text only] + +CHAPTER I - Looking-Glass house + +One thing was certain, that the WHITE kitten had had nothing to do with it:--it was the black kitten's fault entirely. For the white kitten had been having its face washed by the old cat for the last quarter of an hour (and bearing it pretty well, considering); so you see that it COULDN'T have had any hand in the mischief. + +The way Dinah washed her children's faces was this: first she held the poor thing down by its ear with one paw, and then with the other paw she rubbed its face all over, the wrong way, beginning at the nose: and just now, as I said, she was hard at work on the white kitten, which was lying quite still and trying to purr--no doubt feeling that it was all meant for its good. + +But the black kitten had been finished with earlier in the afternoon, and so, while Alice was sitting curled up in a corner of the great arm-chair, half talking to herself and half asleep, the kitten had been having a grand game of romps with the ball of worsted Alice had been trying to wind up, and had been rolling it up and down till it had all come undone again; and there it was, spread over the hearth-rug, all knots and tangles, with the kitten running after its own tail in the middle. + +'Oh, you wicked little thing!' cried Alice, catching up the kitten, and giving it a little kiss to make it understand that it was in disgrace. 'Really, Dinah ought to have taught you better manners! You OUGHT, Dinah, you know you ought!' she added, looking reproachfully at the old cat, and speaking in as cross a voice as she could manage--and then she scrambled back into the arm-chair, taking the kitten and the worsted with her, and began winding up the ball again. But she didn't get on very fast, as she was talking all the time, sometimes to the kitten, and sometimes to herself. Kitty sat very demurely on her knee, pretending to watch the progress of the winding, and now and then putting out one paw and gently touching the ball, as if it would be glad to help, if it might. + +'Do you know what to-morrow is, Kitty?' Alice began. 'You'd have guessed if you'd been up in the window with me--only Dinah was making you tidy, so you couldn't. I was watching the boys getting in sticks for the bonfire--and it wants plenty of sticks, Kitty! Only it got so cold, and it snowed so, they had to leave off. Never mind, Kitty, we'll go and see the bonfire to-morrow.' Here Alice wound two or three turns of the worsted round the kitten's neck, just to see how it would look: this led to a scramble, in which the ball rolled down upon the floor, and yards and yards of it got unwound again. + +'Do you know, I was so angry, Kitty,' Alice went on as soon as they were comfortably settled again, 'when I saw all the mischief you had been doing, I was very nearly opening the window, and putting you out into the snow! And you'd have deserved it, you little mischievous darling! What have you got to say for yourself? Now don't interrupt me!' she went on, holding up one finger. 'I'm going to tell you all your faults. Number one: you squeaked twice while Dinah was washing your face this morning. Now you can't deny it, Kitty: I heard you! What's that you say?' (pretending that the kitten was speaking.) 'Her paw went into your eye? Well, that's YOUR fault, for keeping your eyes open--if you'd shut them tight up, it wouldn't have happened. Now don't make any more excuses, but listen! Number two: you pulled Snowdrop away by the tail just as I had put down the saucer of milk before her! What, you were thirsty, were you? How do you know she wasn't thirsty too? Now for number three: you unwound every bit of the worsted while I wasn't looking! + +'That's three faults, Kitty, and you've not been punished for any of them yet. You know I'm saving up all your punishments for Wednesday week--Suppose they had saved up all MY punishments!' she went on, talking more to herself than the kitten. 'What WOULD they do at the end of a year? I should be sent to prison, I suppose, when the day came. Or--let me see--suppose each punishment was to be going without a dinner: then, when the miserable day came, I should have to go without fifty dinners at once! Well, I shouldn't mind THAT much! I'd far rather go without them than eat them! + +'Do you hear the snow against the window-panes, Kitty? How nice and soft it sounds! Just as if some one was kissing the window all over outside. I wonder if the snow LOVES the trees and fields, that it kisses them so gently? And then it covers them up snug, you know, with a white quilt; and perhaps it says, "Go to sleep, darlings, till the summer comes again." And when they wake up in the summer, Kitty, they dress themselves all in green, and dance about--whenever the wind blows--oh, that's very pretty!' cried Alice, dropping the ball of worsted to clap her hands. 'And I do so WISH it was true! I'm sure the woods look sleepy in the autumn, when the leaves are getting brown. + +'Kitty, can you play chess? Now, don't smile, my dear, I'm asking it seriously. Because, when we were playing just now, you watched just as if you understood it: and when I said "Check!" you purred! Well, it WAS a nice check, Kitty, and really I might have won, if it hadn't been for that nasty Knight, that came wiggling down among my pieces. Kitty, dear, let's pretend--' And here I wish I could tell you half the things Alice used to say, beginning with her favourite phrase 'Let's pretend.' She had had quite a long argument with her sister only the day before --all because Alice had begun with 'Let's pretend we're kings and queens;' and her sister, who liked being very exact, had argued that they couldn't, because there were only two of them, and Alice had been reduced at last to say, 'Well, YOU can be one of them then, and I'LL be all the rest.' And once she had really frightened her old nurse by shouting suddenly in her ear, 'Nurse! Do let's pretend that I'm a hungry hyaena, and you're a bone.' + +But this is taking us away from Alice's speech to the kitten. 'Let's pretend that you're the Red Queen, Kitty! Do you know, I think if you sat up and folded your arms, you'd look exactly like her. Now do try, there's a dear!' And Alice got the Red Queen off the table, and set it up before the kitten as a model for it to imitate: however, the thing didn't succeed, principally, Alice said, because the kitten wouldn't fold its arms properly. So, to punish it, she held it up to the Looking-glass, that it might see how sulky it was--'and if you're not good directly,' she added, 'I'll put you through into Looking-glass House. How would you like THAT?' + +'Now, if you'll only attend, Kitty, and not talk so much, I'll tell you all my ideas about Looking-glass House. First, there's the room you can see through the glass--that's just the same as our drawing room, only the things go the other way. I can see all of it when I get upon a chair--all but the bit behind the fireplace. Oh! I do so wish I could see THAT bit! I want so much to know whether they've a fire in the winter: you never CAN tell, you know, unless our fire smokes, and then smoke comes up in that room too--but that may be only pretence, just to make it look as if they had a fire. Well then, the books are something like our books, only the words go the wrong way; I know that, because I've held up one of our books to the glass, and then they hold up one in the other room. + +'How would you like to live in Looking-glass House, Kitty? I wonder if they'd give you milk in there? Perhaps Looking-glass milk isn't good to drink--But oh, Kitty! now we come to the passage. You can just see a little PEEP of the passage in Looking-glass House, if you leave the door of our drawing-room wide open: and it's very like our passage as far as you can see, only you know it may be quite different on beyond. Oh, Kitty! how nice it would be if we could only get through into Looking- glass House! I'm sure it's got, oh! such beautiful things in it! Let's pretend there's a way of getting through into it, somehow, Kitty. Let's pretend the glass has got all soft like gauze, so that we can get through. Why, it's turning into a sort of mist now, I declare! It'll be easy enough to get through--' She was up on the chimney-piece while she said this, though she hardly knew how she had got there. And certainly the glass WAS beginning to melt away, just like a bright silvery mist. + +In another moment Alice was through the glass, and had jumped lightly down into the Looking-glass room. The very first thing she did was to look whether there was a fire in the fireplace, and she was quite pleased to find that there was a real one, blazing away as brightly as the one she had left behind. 'So I shall be as warm here as I was in the old room,' thought Alice: 'warmer, in fact, because there'll be no one here to scold me away from the fire. Oh, what fun it'll be, when they see me through the glass in here, and can't get at me!' + +Then she began looking about, and noticed that what could be seen from the old room was quite common and uninteresting, but that all the rest was as different as possible. For instance, the pictures on the wall next the fire seemed to be all alive, and the very clock on the chimney-piece (you know you can only see the back of it in the Looking-glass) had got the face of a little old man, and grinned at her. + +'They don't keep this room so tidy as the other,' Alice thought to herself, as she noticed several of the chessmen down in the hearth among the cinders: but in another moment, with a little 'Oh!' of surprise, she was down on her hands and knees watching them. The chessmen were walking about, two and two! + +'Here are the Red King and the Red Queen,' Alice said (in a whisper, for fear of frightening them), 'and there are the White King and the White Queen sitting on the edge of the shovel--and here are two castles walking arm in arm--I don't think they can hear me,' she went on, as she put her head closer down, 'and I'm nearly sure they can't see me. I feel somehow as if I were invisible--' + +Here something began squeaking on the table behind Alice, and made her turn her head just in time to see one of the White Pawns roll over and begin kicking: she watched it with great curiosity to see what would happen next. + +'It is the voice of my child!' the White Queen cried out as she rushed past the King, so violently that she knocked him over among the cinders. 'My precious Lily! My imperial kitten!' and she began scrambling wildly up the side of the fender. + +'Imperial fiddlestick!' said the King, rubbing his nose, which had been hurt by the fall. He had a right to be a LITTLE annoyed with the Queen, for he was covered with ashes from head to foot. + +Alice was very anxious to be of use, and, as the poor little Lily was nearly screaming herself into a fit, she hastily picked up the Queen and set her on the table by the side of her noisy little daughter. + +The Queen gasped, and sat down: the rapid journey through the air had quite taken away her breath and for a minute or two she could do nothing but hug the little Lily in silence. As soon as she had recovered her breath a little, she called out to the White King, who was sitting sulkily among the ashes, 'Mind the volcano!' + +'What volcano?' said the King, looking up anxiously into the fire, as if he thought that was the most likely place to find one. + +'Blew--me--up,' panted the Queen, who was still a little out of breath. 'Mind you come up--the regular way--don't get blown up!' + +Alice watched the White King as he slowly struggled up from bar to bar, till at last she said, 'Why, you'll be hours and hours getting to the table, at that rate. I'd far better help you, hadn't I?' But the King took no notice of the question: it was quite clear that he could neither hear her nor see her. + +So Alice picked him up very gently, and lifted him across more slowly than she had lifted the Queen, that she mightn't take his breath away: but, before she put him on the table, she thought she might as well dust him a little, he was so covered with ashes. + +She said afterwards that she had never seen in all her life such a face as the King made, when he found himself held in the air by an invisible hand, and being dusted: he was far too much astonished to cry out, but his eyes and his mouth went on getting larger and larger, and rounder and rounder, till her hand shook so with laughing that she nearly let him drop upon the floor. + +'Oh! PLEASE don't make such faces, my dear!' she cried out, quite forgetting that the King couldn't hear her. 'You make me laugh so that I can hardly hold you! And don't keep your mouth so wide open! All the ashes will get into it--there, now I think you're tidy enough!' she added, as she smoothed his hair, and set him upon the table near the Queen. + +The King immediately fell flat on his back, and lay perfectly still: and Alice was a little alarmed at what she had done, and went round the room to see if she could find any water to throw over him. However, she could find nothing but a bottle of ink, and when she got back with it she found he had recovered, and he and the Queen were talking together in a frightened whisper--so low, that Alice could hardly hear what they said. + +The King was saying, 'I assure, you my dear, I turned cold to the very ends of my whiskers!' + +To which the Queen replied, 'You haven't got any whiskers.' + +'The horror of that moment,' the King went on, 'I shall never, NEVER forget!' + +'You will, though,' the Queen said, 'if you don't make a memorandum of it.' + +Alice looked on with great interest as the King took an enormous memorandum-book out of his pocket, and began writing. A sudden thought struck her, and she took hold of the end of the pencil, which came some way over his shoulder, and began writing for him. + +The poor King looked puzzled and unhappy, and struggled with the pencil for some time without saying anything; but Alice was too strong for him, and at last he panted out, 'My dear! I really MUST get a thinner pencil. I can't manage this one a bit; it writes all manner of things that I don't intend--' + +'What manner of things?' said the Queen, looking over the book (in which Alice had put 'THE WHITE KNIGHT IS SLIDING DOWN THE POKER. HE BALANCES VERY BADLY') 'That's not a memorandum of YOUR feelings!' + +There was a book lying near Alice on the table, and while she sat watching the White King (for she was still a little anxious about him, and had the ink all ready to throw over him, in case he fainted again), she turned over the leaves, to find some part that she could read, '--for it's all in some language I don't know,' she said to herself. + +It was like this. + +poem{ + + YKCOWREBBAJ + + sevot yhtils eht dna ,gillirb sawT' + ebaw eht ni elbmig dna eryg diD + ,sevogorob eht erew ysmim llA + .ebargtuo shtar emom eht dnA + +}poem + +She puzzled over this for some time, but at last a bright thought struck her. 'Why, it's a Looking-glass book, of course! And if I hold it up to a glass, the words will all go the right way again.' + +This was the poem that Alice read. + +poem{ + + JABBERWOCKY + + 'Twas brillig, and the slithy toves + Did gyre and gimble in the wabe; + All mimsy were the borogoves, + And the mome raths outgrabe. + + 'Beware the Jabberwock, my son! + The jaws that bite, the claws that catch! + Beware the Jubjub bird, and shun + The frumious Bandersnatch!' + + He took his vorpal sword in hand: + Long time the manxome foe he sought-- + So rested he by the Tumtum tree, + And stood awhile in thought. + + And as in uffish thought he stood, + The Jabberwock, with eyes of flame, + Came whiffling through the tulgey wood, + And burbled as it came! + + One, two! One, two! And through and through + The vorpal blade went snicker-snack! + He left it dead, and with its head + He went galumphing back. + + 'And hast thou slain the Jabberwock? + Come to my arms, my beamish boy! + O frabjous day! Callooh! Callay!' + He chortled in his joy. + + 'Twas brillig, and the slithy toves + Did gyre and gimble in the wabe; + All mimsy were the borogoves, + And the mome raths outgrabe. + +}poem + +'It seems very pretty,' she said when she had finished it, 'but it's RATHER hard to understand!' (You see she didn't like to confess, ever to herself, that she couldn't make it out at all.) 'Somehow it seems to fill my head with ideas--only I don't exactly know what they are! However, SOMEBODY killed SOMETHING: that's clear, at any rate--' + +'But oh!' thought Alice, suddenly jumping up, 'if I don't make haste I shall have to go back through the Looking-glass, before I've seen what the rest of the house is like! Let's have a look at the garden first!' She was out of the room in a moment, and ran down stairs--or, at least, it wasn't exactly running, but a new invention of hers for getting down stairs quickly and easily, as Alice said to herself. She just kept the tips of her fingers on the hand-rail, and floated gently down without even touching the stairs with her feet; then she floated on through the hall, and would have gone straight out at the door in the same way, if she hadn't caught hold of the door-post. She was getting a little giddy with so much floating in the air, and was rather glad to find herself walking again in the natural way. + +CHAPTER II - The Garden of Live Flowers + +'I should see the garden far better,' said Alice to herself, 'if I could get to the top of that hill: and here's a path that leads straight to it--at least, no, it doesn't do that--' (after going a few yards along the path, and turning several sharp corners), 'but I suppose it will at last. But how curiously it twists! It's more like a corkscrew than a path! Well, THIS turn goes to the hill, I suppose--no, it doesn't! This goes straight back to the house! Well then, I'll try it the other way.' + +And so she did: wandering up and down, and trying turn after turn, but always coming back to the house, do what she would. Indeed, once, when she turned a corner rather more quickly than usual, she ran against it before she could stop herself. + +'It's no use talking about it,' Alice said, looking up at the house and pretending it was arguing with her. 'I'm NOT going in again yet. I know I should have to get through the Looking-glass again--back into the old room--and there'd be an end of all my adventures!' + +So, resolutely turning her back upon the house, she set out once more down the path, determined to keep straight on till she got to the hill. For a few minutes all went on well, and she was just saying, 'I really SHALL do it this time--' when the path gave a sudden twist and shook itself (as she described it afterwards), and the next moment she found herself actually walking in at the door. + +'Oh, it's too bad!' she cried. 'I never saw such a house for getting in the way! Never!' + +However, there was the hill full in sight, so there was nothing to be done but start again. This time she came upon a large flower-bed, with a border of daisies, and a willow-tree growing in the middle. + +'O Tiger-lily,' said Alice, addressing herself to one that was waving gracefully about in the wind, 'I WISH you could talk!' + +'We CAN talk,' said the Tiger-lily: 'when there's anybody worth talking to.' + +Alice was so astonished that she could not speak for a minute: it quite seemed to take her breath away. At length, as the Tiger-lily only went on waving about, she spoke again, in a timid voice--almost in a whisper. 'And can ALL the flowers talk?' + +'As well as YOU can,' said the Tiger-lily. 'And a great deal louder.' + +'It isn't manners for us to begin, you know,' said the Rose, 'and I really was wondering when you'd speak! Said I to myself, "Her face has got SOME sense in it, though it's not a clever one!" Still, you're the right colour, and that goes a long way.' + +'I don't care about the colour,' the Tiger-lily remarked. 'If only her petals curled up a little more, she'd be all right.' + +Alice didn't like being criticised, so she began asking questions. 'Aren't you sometimes frightened at being planted out here, with nobody to take care of you?' + +'There's the tree in the middle,' said the Rose: 'what else is it good for?' + +'But what could it do, if any danger came?' Alice asked. + +'It says "Bough-wough!"' cried a Daisy: 'that's why its branches are called boughs!' + +'Didn't you know THAT?' cried another Daisy, and here they all began shouting together, till the air seemed quite full of little shrill voices. 'Silence, every one of you!' cried the Tiger- lily, waving itself passionately from side to side, and trembling with excitement. 'They know I can't get at them!' it panted, bending its quivering head towards Alice, 'or they wouldn't dare to do it!' + +'Never mind!' Alice said in a soothing tone, and stooping down to the daisies, who were just beginning again, she whispered, 'If you don't hold your tongues, I'll pick you!' + +There was silence in a moment, and several of the pink daisies turned white. + +'That's right!' said the Tiger-lily. 'The daisies are worst of all. When one speaks, they all begin together, and it's enough to make one wither to hear the way they go on!' + +'How is it you can all talk so nicely?' Alice said, hoping to get it into a better temper by a compliment. 'I've been in many gardens before, but none of the flowers could talk.' + +'Put your hand down, and feel the ground,' said the Tiger-lily. 'Then you'll know why.' + +Alice did so. 'It's very hard,' she said, 'but I don't see what that has to do with it.' + +'In most gardens,' the Tiger-lily said, 'they make the beds too soft--so that the flowers are always asleep.' + +This sounded a very good reason, and Alice was quite pleased to know it. 'I never thought of that before!' she said. + +'It's MY opinion that you never think AT ALL,' the Rose said in a rather severe tone. + +'I never saw anybody that looked stupider,' a Violet said, so suddenly, that Alice quite jumped; for it hadn't spoken before. + +'Hold YOUR tongue!' cried the Tiger-lily. 'As if YOU ever saw anybody! You keep your head under the leaves, and snore away there, till you know no more what's going on in the world, than if you were a bud!' + +'Are there any more people in the garden besides me?' Alice said, not choosing to notice the Rose's last remark. + +'There's one other flower in the garden that can move about like you,' said the Rose. 'I wonder how you do it--' ('You're always wondering,' said the Tiger-lily), 'but she's more bushy than you are.' + +'Is she like me?' Alice asked eagerly, for the thought crossed her mind, 'There's another little girl in the garden, somewhere!' + +'Well, she has the same awkward shape as you,' the Rose said, 'but she's redder--and her petals are shorter, I think.' + +'Her petals are done up close, almost like a dahlia,' the Tiger-lily interrupted: 'not tumbled about anyhow, like yours.' + +'But that's not YOUR fault,' the Rose added kindly: 'you're beginning to fade, you know--and then one can't help one's petals getting a little untidy.' + +Alice didn't like this idea at all: so, to change the subject, she asked 'Does she ever come out here?' + +'I daresay you'll see her soon,' said the Rose. 'She's one of the thorny kind.' + +'Where does she wear the thorns?' Alice asked with some curiosity. + +'Why all round her head, of course,' the Rose replied. 'I was wondering YOU hadn't got some too. I thought it was the regular rule.' + +'She's coming!' cried the Larkspur. 'I hear her footstep, thump, thump, thump, along the gravel-walk!' + +Alice looked round eagerly, and found that it was the Red Queen. 'She's grown a good deal!' was her first remark. She had indeed: when Alice first found her in the ashes, she had been only three inches high--and here she was, half a head taller than Alice herself! + +'It's the fresh air that does it,' said the Rose: 'wonderfully fine air it is, out here.' + +'I think I'll go and meet her,' said Alice, for, though the flowers were interesting enough, she felt that it would be far grander to have a talk with a real Queen. + +'You can't possibly do that,' said the Rose: '_I_ should advise you to walk the other way.' + +This sounded nonsense to Alice, so she said nothing, but set off at once towards the Red Queen. To her surprise, she lost sight of her in a moment, and found herself walking in at the front-door again. + +A little provoked, she drew back, and after looking everywhere for the queen (whom she spied out at last, a long way off), she thought she would try the plan, this time, of walking in the opposite direction. + +It succeeded beautifully. She had not been walking a minute before she found herself face to face with the Red Queen, and full in sight of the hill she had been so long aiming at. + +'Where do you come from?' said the Red Queen. 'And where are you going? Look up, speak nicely, and don't twiddle your fingers all the time.' + +Alice attended to all these directions, and explained, as well as she could, that she had lost her way. + +'I don't know what you mean by YOUR way,' said the Queen: 'all the ways about here belong to ME--but why did you come out here at all?' she added in a kinder tone. 'Curtsey while you're thinking what to say, it saves time.' + +Alice wondered a little at this, but she was too much in awe of the Queen to disbelieve it. 'I'll try it when I go home,' she thought to herself, 'the next time I'm a little late for dinner.' + +'It's time for you to answer now,' the Queen said, looking at her watch: 'open your mouth a LITTLE wider when you speak, and always say "your Majesty."' + +'I only wanted to see what the garden was like, your Majesty--' + +'That's right,' said the Queen, patting her on the head, which Alice didn't like at all, 'though, when you say "garden,"--I'VE seen gardens, compared with which this would be a wilderness.' + +Alice didn't dare to argue the point, but went on: '--and I thought I'd try and find my way to the top of that hill--' + +'When you say "hill,"' the Queen interrupted, '_I_ could show you hills, in comparison with which you'd call that a valley.' + +'No, I shouldn't,' said Alice, surprised into contradicting her at last: 'a hill CAN'T be a valley, you know. That would be nonsense--' + +The Red Queen shook her head, 'You may call it "nonsense" if you like,' she said, 'but I'VE heard nonsense, compared with which that would be as sensible as a dictionary!' + +Alice curtseyed again, as she was afraid from the Queen's tone that she was a LITTLE offended: and they walked on in silence till they got to the top of the little hill. + +For some minutes Alice stood without speaking, looking out in all directions over the country--and a most curious country it was. There were a number of tiny little brooks running straight across it from side to side, and the ground between was divided up into squares by a number of little green hedges, that reached from brook to brook. + +'I declare it's marked out just like a large chessboard!' Alice said at last. 'There ought to be some men moving about somewhere --and so there are!' She added in a tone of delight, and her heart began to beat quick with excitement as she went on. 'It's a great huge game of chess that's being played--all over the world--if this IS the world at all, you know. Oh, what fun it is! How I WISH I was one of them! I wouldn't mind being a Pawn, if only I might join--though of course I should LIKE to be a Queen, best.' + +She glanced rather shyly at the real Queen as she said this, but her companion only smiled pleasantly, and said, 'That's easily managed. You can be the White Queen's Pawn, if you like, as Lily's too young to play; and you're in the Second Square to begin with: when you get to the Eighth Square you'll be a Queen --' Just at this moment, somehow or other, they began to run. + +Alice never could quite make out, in thinking it over afterwards, how it was that they began: all she remembers is, that they were running hand in hand, and the Queen went so fast that it was all she could do to keep up with her: and still the Queen kept crying 'Faster! Faster!' but Alice felt she COULD NOT go faster, though she had not breath left to say so. + +The most curious part of the thing was, that the trees and the other things round them never changed their places at all: however fast they went, they never seemed to pass anything. 'I wonder if all the things move along with us?' thought poor puzzled Alice. And the Queen seemed to guess her thoughts, for she cried, 'Faster! Don't try to talk!' + +Not that Alice had any idea of doing THAT. She felt as if she would never be able to talk again, she was getting so much out of breath: and still the Queen cried 'Faster! Faster!' and dragged her along. 'Are we nearly there?' Alice managed to pant out at last. + +'Nearly there!' the Queen repeated. 'Why, we passed it ten minutes ago! Faster!' And they ran on for a time in silence, with the wind whistling in Alice's ears, and almost blowing her hair off her head, she fancied. + +'Now! Now!' cried the Queen. 'Faster! Faster!' And they went so fast that at last they seemed to skim through the air, hardly touching the ground with their feet, till suddenly, just as Alice was getting quite exhausted, they stopped, and she found herself sitting on the ground, breathless and giddy. + +The Queen propped her up against a tree, and said kindly, 'You may rest a little now.' + +Alice looked round her in great surprise. 'Why, I do believe we've been under this tree the whole time! Everything's just as it was!' + +'Of course it is,' said the Queen, 'what would you have it?' + +'Well, in OUR country,' said Alice, still panting a little, 'you'd generally get to somewhere else--if you ran very fast for a long time, as we've been doing.' + +'A slow sort of country!' said the Queen. 'Now, HERE, you see, it takes all the running YOU can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!' + +'I'd rather not try, please!' said Alice. 'I'm quite content to stay here--only I AM so hot and thirsty!' + +'I know what YOU'D like!' the Queen said good-naturedly, taking a little box out of her pocket. 'Have a biscuit?' + +Alice thought it would not be civil to say 'No,' though it wasn't at all what she wanted. So she took it, and ate it as well as she could: and it was VERY dry; and she thought she had never been so nearly choked in all her life. + +'While you're refreshing yourself,' said the Queen, 'I'll just take the measurements.' And she took a ribbon out of her pocket, marked in inches, and began measuring the ground, and sticking little pegs in here and there. + +'At the end of two yards,' she said, putting in a peg to mark the distance, 'I shall give you your directions--have another biscuit?' + +'No, thank you,' said Alice: 'one's QUITE enough!' + +'Thirst quenched, I hope?' said the Queen. + +Alice did not know what to say to this, but luckily the Queen did not wait for an answer, but went on. 'At the end of THREE yards I shall repeat them--for fear of your forgetting them. At the end of FOUR, I shall say good-bye. And at the end of FIVE, I shall go!' + +She had got all the pegs put in by this time, and Alice looked on with great interest as she returned to the tree, and then began slowly walking down the row. + +At the two-yard peg she faced round, and said, 'A pawn goes two squares in its first move, you know. So you'll go VERY quickly through the Third Square--by railway, I should think--and you'll find yourself in the Fourth Square in no time. Well, THAT square belongs to Tweedledum and Tweedledee--the Fifth is mostly water--the Sixth belongs to Humpty Dumpty--But you make no remark?' + +'I--I didn't know I had to make one--just then,' Alice faltered out. + +'You SHOULD have said, "It's extremely kind of you to tell me all this"--however, we'll suppose it said--the Seventh Square is all forest--however, one of the Knights will show you the way--and in the Eighth Square we shall be Queens together, and it's all feasting and fun!' Alice got up and curtseyed, and sat down again. + +At the next peg the Queen turned again, and this time she said, 'Speak in French when you can't think of the English for a thing --turn out your toes as you walk--and remember who you are!' She did not wait for Alice to curtsey this time, but walked on quickly to the next peg, where she turned for a moment to say 'good-bye,' and then hurried on to the last. + +How it happened, Alice never knew, but exactly as she came to the last peg, she was gone. Whether she vanished into the air, or whether she ran quickly into the wood ('and she CAN run very fast!' thought Alice), there was no way of guessing, but she was gone, and Alice began to remember that she was a Pawn, and that it would soon be time for her to move. + +CHAPTER III - Looking-Glass Insects + +Of course the first thing to do was to make a grand survey of the country she was going to travel through. 'It's something very like learning geography,' thought Alice, as she stood on tiptoe in hopes of being able to see a little further. 'Principal rivers-- there ARE none. Principal mountains--I'm on the only one, but I don't think it's got any name. Principal towns--why, what ARE those creatures, making honey down there? They can't be bees-- nobody ever saw bees a mile off, you know--' and for some time she stood silent, watching one of them that was bustling about among the flowers, poking its proboscis into them, 'just as if it was a regular bee,' thought Alice. + +However, this was anything but a regular bee: in fact it was an elephant--as Alice soon found out, though the idea quite took her breath away at first. 'And what enormous flowers they must be!' was her next idea. 'Something like cottages with the roofs taken off, and stalks put to them--and what quantities of honey they must make! I think I'll go down and--no, I won't JUST yet,' she went on, checking herself just as she was beginning to run down the hill, and trying to find some excuse for turning shy so suddenly. 'It'll never do to go down among them without a good long branch to brush them away--and what fun it'll be when they ask me how I like my walk. I shall say-- "Oh, I like it well enough--"' (here came the favourite little toss of the head), '"only it was so dusty and hot, and the elephants did tease so!"' + +'I think I'll go down the other way,' she said after a pause: 'and perhaps I may visit the elephants later on. Besides, I do so want to get into the Third Square!' + +So with this excuse she ran down the hill and jumped over the first of the six little brooks. + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +'Tickets, please!' said the Guard, putting his head in at the window. In a moment everybody was holding out a ticket: they were about the same size as the people, and quite seemed to fill the carriage. + +'Now then! Show your ticket, child!' the Guard went on, looking angrily at Alice. And a great many voices all said together ('like the chorus of a song,' thought Alice), 'Don't keep him waiting, child! Why, his time is worth a thousand pounds a minute!' + +'I'm afraid I haven't got one,' Alice said in a frightened tone: 'there wasn't a ticket-office where I came from.' And again the chorus of voices went on. 'There wasn't room for one where she came from. The land there is worth a thousand pounds an inch!' + +'Don't make excuses,' said the Guard: 'you should have bought one from the engine-driver.' And once more the chorus of voices went on with 'The man that drives the engine. Why, the smoke alone is worth a thousand pounds a puff!' + +Alice thought to herself, 'Then there's no use in speaking.' The voices didn't join in this time, as she hadn't spoken, but to her great surprise, they all THOUGHT in chorus (I hope you understand what THINKING IN CHORUS means--for I must confess that _I_ don't), 'Better say nothing at all. Language is worth a thousand pounds a word!' + +'I shall dream about a thousand pounds tonight, I know I shall!' thought Alice. + +All this time the Guard was looking at her, first through a telescope, then through a microscope, and then through an opera- glass. At last he said, 'You're travelling the wrong way,' and shut up the window and went away. + +'So young a child,' said the gentleman sitting opposite to her (he was dressed in white paper), 'ought to know which way she's going, even if she doesn't know her own name!' + +A Goat, that was sitting next to the gentleman in white, shut his eyes and said in a loud voice, 'She ought to know her way to the ticket-office, even if she doesn't know her alphabet!' + +There was a Beetle sitting next to the Goat (it was a very queer carriage-full of passengers altogether), and, as the rule seemed to be that they should all speak in turn, HE went on with 'She'll have to go back from here as luggage!' + +Alice couldn't see who was sitting beyond the Beetle, but a hoarse voice spoke next. 'Change engines--' it said, and was obliged to leave off. + +'It sounds like a horse,' Alice thought to herself. And an extremely small voice, close to her ear, said, 'You might make a joke on that--something about "horse" and "hoarse," you know.' + +Then a very gentle voice in the distance said, 'She must be labelled "Lass, with care," you know--' + +And after that other voices went on ('What a number of people there are in the carriage!' thought Alice), saying, 'She must go by post, as she's got a head on her--' 'She must be sent as a message by the telegraph--' 'She must draw the train herself the rest of the way--' and so on. + +But the gentleman dressed in white paper leaned forwards and whispered in her ear, 'Never mind what they all say, my dear, but take a return-ticket every time the train stops.' + +'Indeed I shan't!' Alice said rather impatiently. 'I don't belong to this railway journey at all--I was in a wood just now --and I wish I could get back there.' + +'You might make a joke on THAT,' said the little voice close to her ear: 'something about "you WOULD if you could," you know.' + +'Don't tease so,' said Alice, looking about in vain to see where the voice came from; 'if you're so anxious to have a joke made, why don't you make one yourself?' + +The little voice sighed deeply: it was VERY unhappy, evidently, and Alice would have said something pitying to comfort it, 'If it would only sigh like other people!' she thought. But this was such a wonderfully small sigh, that she wouldn't have heard it at all, if it hadn't come QUITE close to her ear. The consequence of this was that it tickled her ear very much, and quite took off her thoughts from the unhappiness of the poor little creature. + +'I know you are a friend,' the little voice went on; 'a dear friend, and an old friend. And you won't hurt me, though I AM an insect.' + +'What kind of insect?' Alice inquired a little anxiously. What she really wanted to know was, whether it could sting or not, but she thought this wouldn't be quite a civil question to ask. + +'What, then you don't--' the little voice began, when it was drowned by a shrill scream from the engine, and everybody jumped up in alarm, Alice among the rest. + +The Horse, who had put his head out of the window, quietly drew it in and said, 'It's only a brook we have to jump over.' Everybody seemed satisfied with this, though Alice felt a little nervous at the idea of trains jumping at all. 'However, it'll take us into the Fourth Square, that's some comfort!' she said to herself. In another moment she felt the carriage rise straight up into the air, and in her fright she caught at the thing nearest to her hand, which happened to be the Goat's beard. + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +But the beard seemed to melt away as she touched it, and she found herself sitting quietly under a tree--while the Gnat (for that was the insect she had been talking to) was balancing itself on a twig just over her head, and fanning her with its wings. + +It certainly was a VERY large Gnat: 'about the size of a chicken,' Alice thought. Still, she couldn't feel nervous with it, after they had been talking together so long. + +'--then you don't like all insects?' the Gnat went on, as quietly as if nothing had happened. + +'I like them when they can talk,' Alice said. 'None of them ever talk, where _{I}_ come from.' + +'What sort of insects do you rejoice in, where YOU come from?' the Gnat inquired. + +'I don't REJOICE in insects at all,' Alice explained, 'because I'm rather afraid of them--at least the large kinds. But I can tell you the names of some of them.' + +'Of course they answer to their names?' the Gnat remarked carelessly. + +'I never knew them do it.' + +'What's the use of their having names,' the Gnat said, 'if they won't answer to them?' + +'No use to THEM,' said Alice; 'but it's useful to the people who name them, I suppose. If not, why do things have names at all?' + +'I can't say,' the Gnat replied. 'Further on, in the wood down there, they've got no names--however, go on with your list of insects: you're wasting time.' + +'Well, there's the Horse-fly,' Alice began, counting off the names on her fingers. + +'All right,' said the Gnat: 'half way up that bush, you'll see a Rocking-horse-fly, if you look. It's made entirely of wood, and gets about by swinging itself from branch to branch.' + +'What does it live on?' Alice asked, with great curiosity. + +'Sap and sawdust,' said the Gnat. 'Go on with the list.' + +Alice looked up at the Rocking-horse-fly with great interest, and made up her mind that it must have been just repainted, it looked so bright and sticky; and then she went on. + +'And there's the Dragon-fly.' + +'Look on the branch above your head,' said the Gnat, 'and there you'll find a snap-dragon-fly. Its body is made of plum-pudding, its wings of holly-leaves, and its head is a raisin burning in brandy.' + +'And what does it live on?' + +'Frumenty and mince pie,' the Gnat replied; 'and it makes its nest in a Christmas box.' + +'And then there's the Butterfly,' Alice went on, after she had taken a good look at the insect with its head on fire, and had thought to herself, 'I wonder if that's the reason insects are so fond of flying into candles--because they want to turn into Snap-dragon-flies!' + +'Crawling at your feet,' said the Gnat (Alice drew her feet back in some alarm), 'you may observe a Bread-and-Butterfly. Its wings are thin slices of Bread-and-butter, its body is a crust, and its head is a lump of sugar.' + +'And what does IT live on?' + +'Weak tea with cream in it.' + +A new difficulty came into Alice's head. 'Supposing it couldn't find any?' she suggested. + +'Then it would die, of course.' + +'But that must happen very often,' Alice remarked thoughtfully. + +'It always happens,' said the Gnat. + +After this, Alice was silent for a minute or two, pondering. The Gnat amused itself meanwhile by humming round and round her head: at last it settled again and remarked, 'I suppose you don't want to lose your name?' + +'No, indeed,' Alice said, a little anxiously. + +'And yet I don't know,' the Gnat went on in a careless tone: 'only think how convenient it would be if you could manage to go home without it! For instance, if the governess wanted to call you to your lessons, she would call out "come here--," and there she would have to leave off, because there wouldn't be any name for her to call, and of course you wouldn't have to go, you know.' + +'That would never do, I'm sure,' said Alice: 'the governess would never think of excusing me lessons for that. If she couldn't remember my name, she'd call me "Miss!" as the servants do.' + +'Well, if she said "Miss," and didn't say anything more,' the Gnat remarked, 'of course you'd miss your lessons. That's a joke. I wish YOU had made it.' + +'Why do you wish _{I}_ had made it?' Alice asked. 'It's a very bad one.' + +But the Gnat only sighed deeply, while two large tears came rolling down its cheeks. + +'You shouldn't make jokes,' Alice said, 'if it makes you so unhappy.' + +Then came another of those melancholy little sighs, and this time the poor Gnat really seemed to have sighed itself away, for, when Alice looked up, there was nothing whatever to be seen on the twig, and, as she was getting quite chilly with sitting still so long, she got up and walked on. + +She very soon came to an open field, with a wood on the other side of it: it looked much darker than the last wood, and Alice felt a LITTLE timid about going into it. However, on second thoughts, she made up her mind to go on: 'for I certainly won't go BACK,' she thought to herself, and this was the only way to the Eighth Square. + +'This must be the wood,' she said thoughtfully to herself, 'where things have no names. I wonder what'll become of MY name when I go in? I shouldn't like to lose it at all--because they'd have to give me another, and it would be almost certain to be an ugly one. But then the fun would be trying to find the creature that had got my old name! That's just like the advertisements, you know, when people lose dogs--"ANSWERS TO THE NAME OF 'DASH:' HAD ON A BRASS COLLAR"--just fancy calling everything you met "Alice," till one of them answered! Only they wouldn't answer at all, if they were wise.' + +She was rambling on in this way when she reached the wood: it looked very cool and shady. 'Well, at any rate it's a great comfort,' she said as she stepped under the trees, 'after being so hot, to get into the--into WHAT?' she went on, rather surprised at not being able to think of the word. 'I mean to get under the--under the--under THIS, you know!' putting her hand on the trunk of the tree. 'What DOES it call itself, I wonder? I do believe it's got no name--why, to be sure it hasn't!' + +She stood silent for a minute, thinking: then she suddenly began again. 'Then it really HAS happened, after all! And now, who am I? I WILL remember, if I can! I'm determined to do it!' But being determined didn't help much, and all she could say, after a great deal of puzzling, was, 'L, I KNOW it begins with L!' + +Just then a Fawn came wandering by: it looked at Alice with its large gentle eyes, but didn't seem at all frightened. 'Here then! Here then!' Alice said, as she held out her hand and tried to stroke it; but it only started back a little, and then stood looking at her again. + +'What do you call yourself?' the Fawn said at last. Such a soft sweet voice it had! + +'I wish I knew!' thought poor Alice. She answered, rather sadly, 'Nothing, just now.' + +'Think again,' it said: 'that won't do.' + +Alice thought, but nothing came of it. 'Please, would you tell me what YOU call yourself?' she said timidly. 'I think that might help a little.' + +'I'll tell you, if you'll move a little further on,' the Fawn said. 'I can't remember here.' + +So they walked on together though the wood, Alice with her arms clasped lovingly round the soft neck of the Fawn, till they came out into another open field, and here the Fawn gave a sudden bound into the air, and shook itself free from Alice's arms. 'I'm a Fawn!' it cried out in a voice of delight, 'and, dear me! you're a human child!' A sudden look of alarm came into its beautiful brown eyes, and in another moment it had darted away at full speed. + +Alice stood looking after it, almost ready to cry with vexation at having lost her dear little fellow-traveller so suddenly. 'However, I know my name now.' she said, 'that's SOME comfort. Alice--Alice--I won't forget it again. And now, which of these finger-posts ought I to follow, I wonder?' + +It was not a very difficult question to answer, as there was only one road through the wood, and the two finger-posts both pointed along it. 'I'll settle it,' Alice said to herself, 'when the road divides and they point different ways.' + +But this did not seem likely to happen. She went on and on, a long way, but wherever the road divided there were sure to be two finger-posts pointing the same way, one marked 'TO TWEEDLEDUM'S HOUSE' and the other 'TO THE HOUSE OF TWEEDLEDEE.' + +'I do believe,' said Alice at last, 'that they live in the same house! I wonder I never thought of that before--But I can't stay there long. I'll just call and say "how d'you do?" and ask them the way out of the wood. If I could only get to the Eighth Square before it gets dark!' So she wandered on, talking to herself as she went, till, on turning a sharp corner, she came upon two fat little men, so suddenly that she could not help starting back, but in another moment she recovered herself, feeling sure that they must be. + +CHAPTER IV - Tweedledum and Tweedledee + +They were standing under a tree, each with an arm round the other's neck, and Alice knew which was which in a moment, because one of them had 'DUM' embroidered on his collar, and the other 'DEE.' 'I suppose they've each got "TWEEDLE" round at the back of the collar,' she said to herself. + +They stood so still that she quite forgot they were alive, and she was just looking round to see if the word "TWEEDLE" was written at the back of each collar, when she was startled by a voice coming from the one marked 'DUM.' + +'If you think we're wax-works,' he said, 'you ought to pay, you know. Wax-works weren't made to be looked at for nothing, nohow!' + +'Contrariwise,' added the one marked 'DEE,' 'if you think we're alive, you ought to speak.' + +'I'm sure I'm very sorry,' was all Alice could say; for the words of the old song kept ringing through her head like the ticking of a clock, and she could hardly help saying them out loud:-- + +poem{ + + 'Tweedledum and Tweedledee + Agreed to have a battle; + For Tweedledum said Tweedledee + Had spoiled his nice new rattle. + + Just then flew down a monstrous crow, + As black as a tar-barrel; + Which frightened both the heroes so, + They quite forgot their quarrel.' + +}poem + +'I know what you're thinking about,' said Tweedledum: 'but it isn't so, nohow.' + +'Contrariwise,' continued Tweedledee, 'if it was so, it might be; and if it were so, it would be; but as it isn't, it ain't. That's logic.' + +'I was thinking,' Alice said very politely, 'which is the best way out of this wood: it's getting so dark. Would you tell me, please?' + +But the little men only looked at each other and grinned. + +They looked so exactly like a couple of great schoolboys, that Alice couldn't help pointing her finger at Tweedledum, and saying 'First Boy!' + +'Nohow!' Tweedledum cried out briskly, and shut his mouth up again with a snap. + +'Next Boy!' said Alice, passing on to Tweedledee, though she felt quite certain he would only shout out 'Contrariwise!' and so he did. + +'You've been wrong!' cried Tweedledum. 'The first thing in a visit is to say "How d'ye do?" and shake hands!' And here the two brothers gave each other a hug, and then they held out the two hands that were free, to shake hands with her. + +Alice did not like shaking hands with either of them first, for fear of hurting the other one's feelings; so, as the best way out of the difficulty, she took hold of both hands at once: the next moment they were dancing round in a ring. This seemed quite natural (she remembered afterwards), and she was not even surprised to hear music playing: it seemed to come from the tree under which they were dancing, and it was done (as well as she could make it out) by the branches rubbing one across the other, like fiddles and fiddle-sticks. + +'But it certainly WAS funny,' (Alice said afterwards, when she was telling her sister the history of all this,) 'to find myself singing "HERE WE GO ROUND THE MULBERRY BUSH." I don't know when I began it, but somehow I felt as if I'd been singing it a long long time!' + +The other two dancers were fat, and very soon out of breath. 'Four times round is enough for one dance,' Tweedledum panted out, and they left off dancing as suddenly as they had begun: the music stopped at the same moment. + +Then they let go of Alice's hands, and stood looking at her for a minute: there was a rather awkward pause, as Alice didn't know how to begin a conversation with people she had just been dancing with. 'It would never do to say "How d'ye do?" NOW,' she said to herself: 'we seem to have got beyond that, somehow!' + +'I hope you're not much tired?' she said at last. + +'Nohow. And thank you VERY much for asking,' said Tweedledum. + +'So much obliged!' added Tweedledee. 'You like poetry?' + +'Ye-es, pretty well--SOME poetry,' Alice said doubtfully. 'Would you tell me which road leads out of the wood?' + +'What shall I repeat to her?' said Tweedledee, looking round at Tweedledum with great solemn eyes, and not noticing Alice's question. + +'"THE WALRUS AND THE CARPENTER" is the longest,' Tweedledum replied, giving his brother an affectionate hug. + +Tweedledee began instantly: + +'The sun was shining--' + +Here Alice ventured to interrupt him. 'If it's VERY long,' she said, as politely as she could, 'would you please tell me first which road--' + +Tweedledee smiled gently, and began again: + +poem{ + + 'The sun was shining on the sea, + Shining with all his might: + He did his very best to make + The billows smooth and bright-- + And this was odd, because it was + The middle of the night. + + The moon was shining sulkily, + Because she thought the sun + Had got no business to be there + After the day was done-- + "It's very rude of him," she said, + "To come and spoil the fun!" + + The sea was wet as wet could be, + The sands were dry as dry. + You could not see a cloud, because + No cloud was in the sky: + No birds were flying over head-- + There were no birds to fly. + + The Walrus and the Carpenter + Were walking close at hand; + They wept like anything to see + Such quantities of sand: + "If this were only cleared away," + They said, "it WOULD be grand!" + + "If seven maids with seven mops + Swept it for half a year, + Do you suppose," the Walrus said, + "That they could get it clear?" + "I doubt it," said the Carpenter, + And shed a bitter tear. + + "O Oysters, come and walk with us!" + The Walrus did beseech. + "A pleasant walk, a pleasant talk, + Along the briny beach: + We cannot do with more than four, + To give a hand to each." + + The eldest Oyster looked at him. + But never a word he said: + The eldest Oyster winked his eye, + And shook his heavy head-- + Meaning to say he did not choose + To leave the oyster-bed. + + But four young oysters hurried up, + All eager for the treat: + Their coats were brushed, their faces washed, + Their shoes were clean and neat-- + And this was odd, because, you know, + They hadn't any feet. + + Four other Oysters followed them, + And yet another four; + And thick and fast they came at last, + And more, and more, and more-- + All hopping through the frothy waves, + And scrambling to the shore. + + The Walrus and the Carpenter + Walked on a mile or so, + And then they rested on a rock + Conveniently low: + And all the little Oysters stood + And waited in a row. + + "The time has come," the Walrus said, + "To talk of many things: + Of shoes--and ships--and sealing-wax-- + Of cabbages--and kings-- + And why the sea is boiling hot-- + And whether pigs have wings." + + "But wait a bit," the Oysters cried, + "Before we have our chat; + For some of us are out of breath, + And all of us are fat!" + "No hurry!" said the Carpenter. + They thanked him much for that. + + "A loaf of bread," the Walrus said, + "Is what we chiefly need: + Pepper and vinegar besides + Are very good indeed-- + Now if you're ready Oysters dear, + We can begin to feed." + + "But not on us!" the Oysters cried, + Turning a little blue, + "After such kindness, that would be + A dismal thing to do!" + "The night is fine," the Walrus said + "Do you admire the view? + + "It was so kind of you to come! + And you are very nice!" + The Carpenter said nothing but + "Cut us another slice: + I wish you were not quite so deaf-- + I've had to ask you twice!" + + "It seems a shame," the Walrus said, + "To play them such a trick, + After we've brought them out so far, + And made them trot so quick!" + The Carpenter said nothing but + "The butter's spread too thick!" + + "I weep for you," the Walrus said. + "I deeply sympathize." + With sobs and tears he sorted out + Those of the largest size. + Holding his pocket handkerchief + Before his streaming eyes. + + "O Oysters," said the Carpenter. + "You've had a pleasant run! + Shall we be trotting home again?" + But answer came there none-- + And that was scarcely odd, because + They'd eaten every one.' + +}poem + +'I like the Walrus best,' said Alice: 'because you see he was a LITTLE sorry for the poor oysters.' + +'He ate more than the Carpenter, though,' said Tweedledee. 'You see he held his handkerchief in front, so that the Carpenter couldn't count how many he took: contrariwise.' + +'That was mean!' Alice said indignantly. 'Then I like the Carpenter best--if he didn't eat so many as the Walrus.' + +'But he ate as many as he could get,' said Tweedledum. + +This was a puzzler. After a pause, Alice began, 'Well! They were BOTH very unpleasant characters--' Here she checked herself in some alarm, at hearing something that sounded to her like the puffing of a large steam-engine in the wood near them, though she feared it was more likely to be a wild beast. 'Are there any lions or tigers about here?' she asked timidly. + +'It's only the Red King snoring,' said Tweedledee. + +'Come and look at him!' the brothers cried, and they each took one of Alice's hands, and led her up to where the King was sleeping. + +'Isn't he a LOVELY sight?' said Tweedledum. + +Alice couldn't say honestly that he was. He had a tall red night-cap on, with a tassel, and he was lying crumpled up into a sort of untidy heap, and snoring loud--'fit to snore his head off!' as Tweedledum remarked. + +'I'm afraid he'll catch cold with lying on the damp grass,' said Alice, who was a very thoughtful little girl. + +'He's dreaming now,' said Tweedledee: 'and what do you think he's dreaming about?' + +Alice said 'Nobody can guess that.' + +'Why, about YOU!' Tweedledee exclaimed, clapping his hands triumphantly. 'And if he left off dreaming about you, where do you suppose you'd be?' + +'Where I am now, of course,' said Alice. + +'Not you!' Tweedledee retorted contemptuously. 'You'd be nowhere. Why, you're only a sort of thing in his dream!' + +'If that there King was to wake,' added Tweedledum, 'you'd go out--bang!--just like a candle!' + +'I shouldn't!' Alice exclaimed indignantly. 'Besides, if I'M only a sort of thing in his dream, what are YOU, I should like to know?' + +'Ditto' said Tweedledum. + +'Ditto, ditto' cried Tweedledee. + +He shouted this so loud that Alice couldn't help saying, 'Hush! You'll be waking him, I'm afraid, if you make so much noise.' + +'Well, it no use YOUR talking about waking him,' said Tweedledum, 'when you're only one of the things in his dream. You know very well you're not real.' + +'I AM real!' said Alice and began to cry. + +'You won't make yourself a bit realler by crying,' Tweedledee remarked: 'there's nothing to cry about.' + +'If I wasn't real,' Alice said--half-laughing through her tears, it all seemed so ridiculous--'I shouldn't be able to cry.' + +'I hope you don't suppose those are real tears?' Tweedledum interrupted in a tone of great contempt. + +'I know they're talking nonsense,' Alice thought to herself: 'and it's foolish to cry about it.' So she brushed away her tears, and went on as cheerfully as she could. 'At any rate I'd better be getting out of the wood, for really it's coming on very dark. Do you think it's going to rain?' + +Tweedledum spread a large umbrella over himself and his brother, and looked up into it. 'No, I don't think it is,' he said: 'at least--not under HERE. Nohow.' + +'But it may rain OUTSIDE?' + +'It may--if it chooses,' said Tweedledee: 'we've no objection. Contrariwise.' + +'Selfish things!' thought Alice, and she was just going to say 'Good-night' and leave them, when Tweedledum sprang out from under the umbrella and seized her by the wrist. + +'Do you see THAT?' he said, in a voice choking with passion, and his eyes grew large and yellow all in a moment, as he pointed with a trembling finger at a small white thing lying under the tree. + +'It's only a rattle,' Alice said, after a careful examination of the little white thing. 'Not a rattleSNAKE, you know,' she added hastily, thinking that he was frightened: 'only an old rattle--quite old and broken.' + +'I knew it was!' cried Tweedledum, beginning to stamp about wildly and tear his hair. 'It's spoilt, of course!' Here he looked at Tweedledee, who immediately sat down on the ground, and tried to hide himself under the umbrella. + +Alice laid her hand upon his arm, and said in a soothing tone, 'You needn't be so angry about an old rattle.' + +'But it isn't old!' Tweedledum cried, in a greater fury than ever. 'It's new, I tell you--I bought it yesterday--my nice new RATTLE!' and his voice rose to a perfect scream. + +All this time Tweedledee was trying his best to fold up the umbrella, with himself in it: which was such an extraordinary thing to do, that it quite took off Alice's attention from the angry brother. But he couldn't quite succeed, and it ended in his rolling over, bundled up in the umbrella, with only his head out: and there he lay, opening and shutting his mouth and his large eyes--'looking more like a fish than anything else,' Alice thought. + +'Of course you agree to have a battle?' Tweedledum said in a calmer tone. + +'I suppose so,' the other sulkily replied, as he crawled out of the umbrella: 'only SHE must help us to dress up, you know.' + +So the two brothers went off hand-in-hand into the wood, and returned in a minute with their arms full of things--such as bolsters, blankets, hearth-rugs, table-cloths, dish-covers and coal-scuttles. 'I hope you're a good hand at pinning and tying strings?' Tweedledum remarked. 'Every one of these things has got to go on, somehow or other.' + +Alice said afterwards she had never seen such a fuss made about anything in all her life--the way those two bustled about-- and the quantity of things they put on--and the trouble they gave her in tying strings and fastening buttons--'Really they'll be more like bundles of old clothes than anything else, by the time they're ready!' she said to herself, as she arranged a bolster round the neck of Tweedledee, 'to keep his head from being cut off,' as he said. + +'You know,' he added very gravely, 'it's one of the most serious things that can possibly happen to one in a battle--to get one's head cut off.' + +Alice laughed aloud: but she managed to turn it into a cough, for fear of hurting his feelings. + +'Do I look very pale?' said Tweedledum, coming up to have his helmet tied on. (He CALLED it a helmet, though it certainly looked much more like a saucepan.) + +'Well--yes--a LITTLE,' Alice replied gently. + +'I'm very brave generally,' he went on in a low voice: 'only to-day I happen to have a headache.' + +'And I'VE got a toothache!' said Tweedledee, who had overheard the remark. 'I'm far worse off than you!' + +'Then you'd better not fight to-day,' said Alice, thinking it a good opportunity to make peace. + +'We MUST have a bit of a fight, but I don't care about going on long,' said Tweedledum. 'What's the time now?' + +Tweedledee looked at his watch, and said 'Half-past four.' + +'Let's fight till six, and then have dinner,' said Tweedledum. + +'Very well,' the other said, rather sadly: 'and SHE can watch us--only you'd better not come VERY close,' he added: 'I generally hit everything I can see--when I get really excited.' + +'And _{I}_ hit everything within reach,' cried Tweedledum, 'whether I can see it or not!' + +Alice laughed. 'You must hit the TREES pretty often, I should think,' she said. + +Tweedledum looked round him with a satisfied smile. 'I don't suppose,' he said, 'there'll be a tree left standing, for ever so far round, by the time we've finished!' + +'And all about a rattle!' said Alice, still hoping to make them a LITTLE ashamed of fighting for such a trifle. + +'I shouldn't have minded it so much,' said Tweedledum, 'if it hadn't been a new one.' + +'I wish the monstrous crow would come!' thought Alice. + +'There's only one sword, you know,' Tweedledum said to his brother: 'but you can have the umbrella--it's quite as sharp. Only we must begin quick. It's getting as dark as it can.' + +'And darker,' said Tweedledee. + +It was getting dark so suddenly that Alice thought there must be a thunderstorm coming on. 'What a thick black cloud that is!' she said. 'And how fast it comes! Why, I do believe it's got wings!' + +'It's the crow!' Tweedledum cried out in a shrill voice of alarm: and the two brothers took to their heels and were out of sight in a moment. + +Alice ran a little way into the wood, and stopped under a large tree. 'It can never get at me HERE,' she thought: 'it's far too large to squeeze itself in among the trees. But I wish it wouldn't flap its wings so--it makes quite a hurricane in the wood-- here's somebody's shawl being blown away!' + +CHAPTER V - Wool and Water + +She caught the shawl as she spoke, and looked about for the owner: in another moment the White Queen came running wildly through the wood, with both arms stretched out wide, as if she were flying, and Alice very civilly went to meet her with the shawl. + +'I'm very glad I happened to be in the way,' Alice said, as she helped her to put on her shawl again. + +The White Queen only looked at her in a helpless frightened sort of way, and kept repeating something in a whisper to herself that sounded like 'bread-and-butter, bread-and-butter,' and Alice felt that if there was to be any conversation at all, she must manage it herself. So she began rather timidly: 'Am I addressing the White Queen?' + +'Well, yes, if you call that a-dressing,' The Queen said. 'It isn't MY notion of the thing, at all.' + +Alice thought it would never do to have an argument at the very beginning of their conversation, so she smiled and said, 'If your Majesty will only tell me the right way to begin, I'll do it as well as I can.' + +'But I don't want it done at all!' groaned the poor Queen. 'I've been a-dressing myself for the last two hours.' + +It would have been all the better, as it seemed to Alice, if she had got some one else to dress her, she was so dreadfully untidy. 'Every single thing's crooked,' Alice thought to herself, 'and she's all over pins!--may I put your shawl straight for you?' she added aloud. + +'I don't know what's the matter with it!' the Queen said, in a melancholy voice. 'It's out of temper, I think. I've pinned it here, and I've pinned it there, but there's no pleasing it!' + +'It CAN'T go straight, you know, if you pin it all on one side,' Alice said, as she gently put it right for her; 'and, dear me, what a state your hair is in!' + +'The brush has got entangled in it!' the Queen said with a sigh. 'And I lost the comb yesterday.' + +Alice carefully released the brush, and did her best to get the hair into order. 'Come, you look rather better now!' she said, after altering most of the pins. 'But really you should have a lady's maid!' + +'I'm sure I'll take you with pleasure!' the Queen said. 'Twopence a week, and jam every other day.' + +Alice couldn't help laughing, as she said, 'I don't want you to hire ME--and I don't care for jam.' + +'It's very good jam,' said the Queen. + +'Well, I don't want any TO-DAY, at any rate.' + +'You couldn't have it if you DID want it,' the Queen said. 'The rule is, jam to-morrow and jam yesterday--but never jam to-day.' + +'It MUST come sometimes to "jam to-day,"' Alice objected. + +'No, it can't,' said the Queen. 'It's jam every OTHER day: to-day isn't any OTHER day, you know.' + +'I don't understand you,' said Alice. 'It's dreadfully confusing!' + +'That's the effect of living backwards,' the Queen said kindly: 'it always makes one a little giddy at first--' + +'Living backwards!' Alice repeated in great astonishment. 'I never heard of such a thing!' + +'--but there's one great advantage in it, that one's memory works both ways.' + +'I'm sure MINE only works one way,' Alice remarked. 'I can't remember things before they happen.' + +'It's a poor sort of memory that only works backwards,' the Queen remarked. + +'What sort of things do YOU remember best?' Alice ventured to ask. + +'Oh, things that happened the week after next,' the Queen replied in a careless tone. 'For instance, now,' she went on, sticking a large piece of plaster [band-aid] on her finger as she spoke, 'there's the King's Messenger. He's in prison now, being punished: and the trial doesn't even begin till next Wednesday: and of course the crime comes last of all.' + +'Suppose he never commits the crime?' said Alice. + +'That would be all the better, wouldn't it?' the Queen said, as she bound the plaster round her finger with a bit of ribbon. + +Alice felt there was no denying THAT. 'Of course it would be all the better,' she said: 'but it wouldn't be all the better his being punished.' + +'You're wrong THERE, at any rate,' said the Queen: 'were YOU ever punished?' + +'Only for faults,' said Alice. + +'And you were all the better for it, I know!' the Queen said triumphantly. + +'Yes, but then I HAD done the things I was punished for,' said Alice: 'that makes all the difference.' + +'But if you HADN'T done them,' the Queen said, 'that would have been better still; better, and better, and better!' Her voice went higher with each 'better,' till it got quite to a squeak at last. + +Alice was just beginning to say 'There's a mistake somewhere--,' when the Queen began screaming so loud that she had to leave the sentence unfinished. 'Oh, oh, oh!' shouted the Queen, shaking her hand about as if she wanted to shake it off. 'My finger's bleeding! Oh, oh, oh, oh!' + +Her screams were so exactly like the whistle of a steam-engine, that Alice had to hold both her hands over her ears. + +'What IS the matter?' she said, as soon as there was a chance of making herself heard. 'Have you pricked your finger?' + +'I haven't pricked it YET,' the Queen said, 'but I soon shall-- oh, oh, oh!' + +'When do you expect to do it?' Alice asked, feeling very much inclined to laugh. + +'When I fasten my shawl again,' the poor Queen groaned out: 'the brooch will come undone directly. Oh, oh!' As she said the words the brooch flew open, and the Queen clutched wildly at it, and tried to clasp it again. + +'Take care!' cried Alice. 'You're holding it all crooked!' And she caught at the brooch; but it was too late: the pin had slipped, and the Queen had pricked her finger. + +'That accounts for the bleeding, you see,' she said to Alice with a smile. 'Now you understand the way things happen here.' + +'But why don't you scream now?' Alice asked, holding her hands ready to put over her ears again. + +'Why, I've done all the screaming already,' said the Queen. 'What would be the good of having it all over again?' + +By this time it was getting light. 'The crow must have flown away, I think,' said Alice: 'I'm so glad it's gone. I thought it was the night coming on.' + +'I wish _{I}_ could manage to be glad!' the Queen said. 'Only I never can remember the rule. You must be very happy, living in this wood, and being glad whenever you like!' + +'Only it is so VERY lonely here!' Alice said in a melancholy voice; and at the thought of her loneliness two large tears came rolling down her cheeks. + +'Oh, don't go on like that!' cried the poor Queen, wringing her hands in despair. 'Consider what a great girl you are. Consider what a long way you've come to-day. Consider what o'clock it is. Consider anything, only don't cry!' + +Alice could not help laughing at this, even in the midst of her tears. 'Can YOU keep from crying by considering things?' she asked. + +'That's the way it's done,' the Queen said with great decision: 'nobody can do two things at once, you know. Let's consider your age to begin with--how old are you?' + +'I'm seven and a half exactly.' + +'You needn't say "exactually,"' the Queen remarked: 'I can believe it without that. Now I'll give YOU something to believe. I'm just one hundred and one, five months and a day.' + +'I can't believe THAT!' said Alice. + +'Can't you?' the Queen said in a pitying tone. 'Try again: draw a long breath, and shut your eyes.' + +Alice laughed. 'There's no use trying,' she said: 'one CAN'T believe impossible things.' + +'I daresay you haven't had much practice,' said the Queen. 'When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast. There goes the shawl again!' + +The brooch had come undone as she spoke, and a sudden gust of wind blew the Queen's shawl across a little brook. The Queen spread out her arms again, and went flying after it, and this time she succeeded in catching it for herself. 'I've got it!' she cried in a triumphant tone. 'Now you shall see me pin it on again, all by myself!' + +'Then I hope your finger is better now?' Alice said very politely, as she crossed the little brook after the Queen. + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +'Oh, much better!' cried the Queen, her voice rising to a squeak as she went on. 'Much be-etter! Be-etter! Be-e-e-etter! Be-e-ehh!' The last word ended in a long bleat, so like a sheep that Alice quite started. + +She looked at the Queen, who seemed to have suddenly wrapped herself up in wool. Alice rubbed her eyes, and looked again. She couldn't make out what had happened at all. Was she in a shop? And was that really--was it really a SHEEP that was sitting on the other side of the counter? Rub as she could, she could make nothing more of it: she was in a little dark shop, leaning with her elbows on the counter, and opposite to her was an old Sheep, sitting in an arm-chair knitting, and every now and then leaving off to look at her through a great pair of spectacles. + +'What is it you want to buy?' the Sheep said at last, looking up for a moment from her knitting. + +'I don't QUITE know yet,' Alice said, very gently. 'I should like to look all round me first, if I might.' + +'You may look in front of you, and on both sides, if you like,' said the Sheep: 'but you can't look ALL round you--unless you've got eyes at the back of your head.' + +But these, as it happened, Alice had NOT got: so she contented herself with turning round, looking at the shelves as she came to them. + +The shop seemed to be full of all manner of curious things-- but the oddest part of it all was, that whenever she looked hard at any shelf, to make out exactly what it had on it, that particular shelf was always quite empty: though the others round it were crowded as full as they could hold. + +'Things flow about so here!' she said at last in a plaintive tone, after she had spent a minute or so in vainly pursuing a large bright thing, that looked sometimes like a doll and sometimes like a work-box, and was always in the shelf next above the one she was looking at. 'And this one is the most provoking of all--but I'll tell you what--' she added, as a sudden thought struck her, 'I'll follow it up to the very top shelf of all. It'll puzzle it to go through the ceiling, I expect!' + +But even this plan failed: the 'thing' went through the ceiling as quietly as possible, as if it were quite used to it. + +'Are you a child or a teetotum?' the Sheep said, as she took up another pair of needles. 'You'll make me giddy soon, if you go on turning round like that.' She was now working with fourteen pairs at once, and Alice couldn't help looking at her in great astonishment. + +'How CAN she knit with so many?' the puzzled child thought to herself. 'She gets more and more like a porcupine every minute!' + +'Can you row?' the Sheep asked, handing her a pair of knitting- needles as she spoke. + +'Yes, a little--but not on land--and not with needles--' Alice was beginning to say, when suddenly the needles turned into oars in her hands, and she found they were in a little boat, gliding along between banks: so there was nothing for it but to do her best. + +'Feather!' cried the Sheep, as she took up another pair of needles. + +This didn't sound like a remark that needed any answer, so Alice said nothing, but pulled away. There was something very queer about the water, she thought, as every now and then the oars got fast in it, and would hardly come out again. + +'Feather! Feather!' the Sheep cried again, taking more needles. 'You'll be catching a crab directly.' + +'A dear little crab!' thought Alice. 'I should like that.' + +'Didn't you hear me say "Feather"?' the Sheep cried angrily, taking up quite a bunch of needles. + +'Indeed I did,' said Alice: 'you've said it very often--and very loud. Please, where ARE the crabs?' + +'In the water, of course!' said the Sheep, sticking some of the needles into her hair, as her hands were full. 'Feather, I say!' + +'WHY do you say "feather" so often?' Alice asked at last, rather vexed. 'I'm not a bird!' + +'You are,' said the Sheep: 'you're a little goose.' + +This offended Alice a little, so there was no more conversation for a minute or two, while the boat glided gently on, sometimes among beds of weeds (which made the oars stick fast in the water, worse then ever), and sometimes under trees, but always with the same tall river-banks frowning over their heads. + +'Oh, please! There are some scented rushes!' Alice cried in a sudden transport of delight. 'There really are--and SUCH beauties!' + +'You needn't say "please" to ME about 'em,' the Sheep said, without looking up from her knitting: 'I didn't put 'em there, and I'm not going to take 'em away.' + +'No, but I meant--please, may we wait and pick some?' Alice pleaded. 'If you don't mind stopping the boat for a minute.' + +'How am _I_ to stop it?' said the Sheep. 'If you leave off rowing, it'll stop of itself.' + +So the boat was left to drift down the stream as it would, till it glided gently in among the waving rushes. And then the little sleeves were carefully rolled up, and the little arms were plunged in elbow-deep to get the rushes a good long way down before breaking them off--and for a while Alice forgot all about the Sheep and the knitting, as she bent over the side of the boat, with just the ends of her tangled hair dipping into the water--while with bright eager eyes she caught at one bunch after another of the darling scented rushes. + +'I only hope the boat won't tipple over!' she said to herself. 'Oh, WHAT a lovely one! Only I couldn't quite reach it.' 'And it certainly DID seem a little provoking ('almost as if it happened on purpose,' she thought) that, though she managed to pick plenty of beautiful rushes as the boat glided by, there was always a more lovely one that she couldn't reach. + +'The prettiest are always further!' she said at last, with a sigh at the obstinacy of the rushes in growing so far off, as, with flushed cheeks and dripping hair and hands, she scrambled back into her place, and began to arrange her new-found treasures. + +What mattered it to her just then that the rushes had begun to fade, and to lose all their scent and beauty, from the very moment that she picked them? Even real scented rushes, you know, last only a very little while--and these, being dream-rushes, melted away almost like snow, as they lay in heaps at her feet-- but Alice hardly noticed this, there were so many other curious things to think about. + +They hadn't gone much farther before the blade of one of the oars got fast in the water and WOULDN'T come out again (so Alice explained it afterwards), and the consequence was that the handle of it caught her under the chin, and, in spite of a series of little shrieks of 'Oh, oh, oh!' from poor Alice, it swept her straight off the seat, and down among the heap of rushes. + +However, she wasn't hurt, and was soon up again: the Sheep went on with her knitting all the while, just as if nothing had happened. 'That was a nice crab you caught!' she remarked, as Alice got back into her place, very much relieved to find herself still in the boat. + +'Was it? I didn't see it,' Said Alice, peeping cautiously over the side of the boat into the dark water. 'I wish it hadn't let go--I should so like to see a little crab to take home with me!' But the Sheep only laughed scornfully, and went on with her knitting. + +'Are there many crabs here?' said Alice. + +'Crabs, and all sorts of things,' said the Sheep: 'plenty of choice, only make up your mind. Now, what DO you want to buy?' + +'To buy!' Alice echoed in a tone that was half astonished and half frightened--for the oars, and the boat, and the river, had vanished all in a moment, and she was back again in the little dark shop. + +'I should like to buy an egg, please,' she said timidly. 'How do you sell them?' + +'Fivepence farthing for one--Twopence for two,' the Sheep replied. + +'Then two are cheaper than one?' Alice said in a surprised tone, taking out her purse. + +'Only you MUST eat them both, if you buy two,' said the Sheep. + +'Then I'll have ONE, please,' said Alice, as she put the money down on the counter. For she thought to herself, 'They mightn't be at all nice, you know.' + +The Sheep took the money, and put it away in a box: then she said 'I never put things into people's hands--that would never do--you must get it for yourself.' And so saying, she went off to the other end of the shop, and set the egg upright on a shelf. + +'I wonder WHY it wouldn't do?' thought Alice, as she groped her way among the tables and chairs, for the shop was very dark towards the end. 'The egg seems to get further away the more I walk towards it. Let me see, is this a chair? Why, it's got branches, I declare! How very odd to find trees growing here! And actually here's a little brook! Well, this is the very queerest shop I ever saw!' + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +So she went on, wondering more and more at every step, as everything turned into a tree the moment she came up to it, and she quite expected the egg to do the same. + +CHAPTER VI - Humpty Dumpty + +However, the egg only got larger and larger, and more and more human: when she had come within a few yards of it, she saw that it had eyes and a nose and mouth; and when she had come close to it, she saw clearly that it was HUMPTY DUMPTY himself. 'It can't be anybody else!' she said to herself. 'I'm as certain of it, as if his name were written all over his face.' + +It might have been written a hundred times, easily, on that enormous face. Humpty Dumpty was sitting with his legs crossed, like a Turk, on the top of a high wall--such a narrow one that Alice quite wondered how he could keep his balance--and, as his eyes were steadily fixed in the opposite direction, and he didn't take the least notice of her, she thought he must be a stuffed figure after all. + +'And how exactly like an egg he is!' she said aloud, standing with her hands ready to catch him, for she was every moment expecting him to fall. + +'It's VERY provoking,' Humpty Dumpty said after a long silence, looking away from Alice as he spoke, 'to be called an egg-- VERY!' + +'I said you LOOKED like an egg, Sir,' Alice gently explained. 'And some eggs are very pretty, you know' she added, hoping to turn her remark into a sort of a compliment. + +'Some people,' said Humpty Dumpty, looking away from her as usual, 'have no more sense than a baby!' + +Alice didn't know what to say to this: it wasn't at all like conversation, she thought, as he never said anything to HER; in fact, his last remark was evidently addressed to a tree--so she stood and softly repeated to herself:-- + +poem{ + + 'Humpty Dumpty sat on a wall: + Humpty Dumpty had a great fall. + All the King's horses and all the King's men + Couldn't put Humpty Dumpty in his place again.' + +}poem + +'That last line is much too long for the poetry,' she added, almost out loud, forgetting that Humpty Dumpty would hear her. + +'Don't stand there chattering to yourself like that,' Humpty Dumpty said, looking at her for the first time, 'but tell me your name and your business.' + +'My NAME is Alice, but--' + +'It's a stupid enough name!' Humpty Dumpty interrupted impatiently. 'What does it mean?' + +'MUST a name mean something?' Alice asked doubtfully. + +'Of course it must,' Humpty Dumpty said with a short laugh: 'MY name means the shape I am--and a good handsome shape it is, too. With a name like yours, you might be any shape, almost.' + +'Why do you sit out here all alone?' said Alice, not wishing to begin an argument. + +'Why, because there's nobody with me!' cried Humpty Dumpty. 'Did you think I didn't know the answer to THAT? Ask another.' + +'Don't you think you'd be safer down on the ground?' Alice went on, not with any idea of making another riddle, but simply in her good-natured anxiety for the queer creature. 'That wall is so VERY narrow!' + +'What tremendously easy riddles you ask!' Humpty Dumpty growled out. 'Of course I don't think so! Why, if ever I DID fall off-- which there's no chance of--but IF I did--' Here he pursed his lips and looked so solemn and grand that Alice could hardly help laughing. 'IF I did fall,' he went on, 'THE KING HAS PROMISED ME--WITH HIS VERY OWN MOUTH--to--to--' + +'To send all his horses and all his men,' Alice interrupted, rather unwisely. + +'Now I declare that's too bad!' Humpty Dumpty cried, breaking into a sudden passion. 'You've been listening at doors--and behind trees-- and down chimneys--or you couldn't have known it!' + +'I haven't, indeed!' Alice said very gently. 'It's in a book.' + +'Ah, well! They may write such things in a BOOK,' Humpty Dumpty said in a calmer tone. 'That's what you call a History of England, that is. Now, take a good look at me! I'm one that has spoken to a King, _{I}_ am: mayhap you'll never see such another: and to show you I'm not proud, you may shake hands with me!' And he grinned almost from ear to ear, as he leant forwards (and as nearly as possible fell off the wall in doing so) and offered Alice his hand. She watched him a little anxiously as she took it. 'If he smiled much more, the ends of his mouth might meet behind,' she thought: 'and then I don't know what would happen to his head! I'm afraid it would come off!' + +'Yes, all his horses and all his men,' Humpty Dumpty went on. 'They'd pick me up again in a minute, THEY would! However, this conversation is going on a little too fast: let's go back to the last remark but one.' + +'I'm afraid I can't quite remember it,' Alice said very politely. + +'In that case we start fresh,' said Humpty Dumpty, 'and it's my turn to choose a subject--' ('He talks about it just as if it was a game!' thought Alice.) 'So here's a question for you. How old did you say you were?' + +Alice made a short calculation, and said 'Seven years and six months.' + +'Wrong!' Humpty Dumpty exclaimed triumphantly. 'You never said a word like it!' + +'I though you meant "How old ARE you?"' Alice explained. + +'If I'd meant that, I'd have said it,' said Humpty Dumpty. + +Alice didn't want to begin another argument, so she said nothing. + +'Seven years and six months!' Humpty Dumpty repeated thoughtfully. 'An uncomfortable sort of age. Now if you'd asked MY advice, I'd have said "Leave off at seven"--but it's too late now.' + +'I never ask advice about growing,' Alice said indignantly. + +'Too proud?' the other inquired. + +Alice felt even more indignant at this suggestion. 'I mean,' she said, 'that one can't help growing older.' + +'ONE can't, perhaps,' said Humpty Dumpty, 'but TWO can. With proper assistance, you might have left off at seven.' + +'What a beautiful belt you've got on!' Alice suddenly remarked. + +(They had had quite enough of the subject of age, she thought: and if they really were to take turns in choosing subjects, it was her turn now.) 'At least,' she corrected herself on second thoughts, 'a beautiful cravat, I should have said--no, a belt, I mean--I beg your pardon!' she added in dismay, for Humpty Dumpty looked thoroughly offended, and she began to wish she hadn't chosen that subject. 'If I only knew,' she thought to herself, 'which was neck and which was waist!' + +Evidently Humpty Dumpty was very angry, though he said nothing for a minute or two. When he DID speak again, it was in a deep growl. + +'It is a--MOST--PROVOKING--thing,' he said at last, 'when a person doesn't know a cravat from a belt!' + +'I know it's very ignorant of me,' Alice said, in so humble a tone that Humpty Dumpty relented. + +'It's a cravat, child, and a beautiful one, as you say. It's a present from the White King and Queen. There now!' + +'Is it really?' said Alice, quite pleased to find that she HAD chosen a good subject, after all. + +'They gave it me,' Humpty Dumpty continued thoughtfully, as he crossed one knee over the other and clasped his hands round it, 'they gave it me--for an un-birthday present.' + +'I beg your pardon?' Alice said with a puzzled air. + +'I'm not offended,' said Humpty Dumpty. + +'I mean, what IS an un-birthday present?' + +'A present given when it isn't your birthday, of course.' + +Alice considered a little. 'I like birthday presents best,' she said at last. + +'You don't know what you're talking about!' cried Humpty Dumpty. 'How many days are there in a year?' + +'Three hundred and sixty-five,' said Alice. + +'And how many birthdays have you?' + +'One.' + +'And if you take one from three hundred and sixty-five, what remains?' + +'Three hundred and sixty-four, of course.' + +Humpty Dumpty looked doubtful. 'I'd rather see that done on paper,' he said. + +Alice couldn't help smiling as she took out her memorandum- book, and worked the sum for him: + +code{ + + 365 + 1 + ___ + + 364 + ___ + +}code + +Humpty Dumpty took the book, and looked at it carefully. 'That seems to be done right--' he began. + +'You're holding it upside down!' Alice interrupted. + +'To be sure I was!' Humpty Dumpty said gaily, as she turned it round for him. 'I thought it looked a little queer. As I was saying, that SEEMS to be done right--though I haven't time to look it over thoroughly just now--and that shows that there are three hundred and sixty-four days when you might get un-birthday presents--' + +'Certainly,' said Alice. + +'And only ONE for birthday presents, you know. There's glory for you!' + +'I don't know what you mean by "glory,"' Alice said. + +Humpty Dumpty smiled contemptuously. 'Of course you don't-- till I tell you. I meant "there's a nice knock-down argument for you!"' + +'But "glory" doesn't mean "a nice knock-down argument,"' Alice objected. + +'When _{I}_ use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean--neither more nor less.' + +'The question is,' said Alice, 'whether you CAN make words mean so many different things.' + +'The question is,' said Humpty Dumpty, 'which is to be master-- that's all.' + +Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. 'They've a temper, some of them-- particularly verbs, they're the proudest--adjectives you can do anything with, but not verbs--however, _{I}_ can manage the whole lot of them! Impenetrability! That's what _{I}_ say!' + +'Would you tell me, please,' said Alice 'what that means?' + +'Now you talk like a reasonable child,' said Humpty Dumpty, looking very much pleased. 'I meant by "impenetrability" that we've had enough of that subject, and it would be just as well if you'd mention what you mean to do next, as I suppose you don't mean to stop here all the rest of your life.' + +'That's a great deal to make one word mean,' Alice said in a thoughtful tone. + +'When I make a word do a lot of work like that,' said Humpty Dumpty, 'I always pay it extra.' + +'Oh!' said Alice. She was too much puzzled to make any other remark. + +'Ah, you should see 'em come round me of a Saturday night,' Humpty Dumpty went on, wagging his head gravely from side to side: 'for to get their wages, you know.' + +(Alice didn't venture to ask what he paid them with; and so you see I can't tell YOU.) + +'You seem very clever at explaining words, Sir,' said Alice. 'Would you kindly tell me the meaning of the poem called "Jabberwocky"?' + +'Let's hear it,' said Humpty Dumpty. 'I can explain all the poems that were ever invented--and a good many that haven't been invented just yet.' + +This sounded very hopeful, so Alice repeated the first verse: + +poem{ + + 'Twas brillig, and the slithy toves + Did gyre and gimble in the wabe; + All mimsy were the borogoves, + And the mome raths outgrabe. + +}poem + +'That's enough to begin with,' Humpty Dumpty interrupted: 'there are plenty of hard words there. "BRILLIG" means four o'clock in the afternoon--the time when you begin BROILING things for dinner.' + +'That'll do very well,' said Alice: 'and "SLITHY"?' + +'Well, "SLITHY" means "lithe and slimy." "Lithe" is the same as "active." You see it's like a portmanteau--there are two meanings packed up into one word.' + +'I see it now,' Alice remarked thoughtfully: 'and what are "TOVES"?' + +'Well, "TOVES" are something like badgers--they're something like lizards--and they're something like corkscrews.' + +'They must be very curious looking creatures.' + +'They are that,' said Humpty Dumpty: 'also they make their nests under sun-dials--also they live on cheese.' + +'And what's the "GYRE" and to "GIMBLE"?' + +'To "GYRE" is to go round and round like a gyroscope. To "GIMBLE" is to make holes like a gimlet.' + +'And "THE WABE" is the grass-plot round a sun-dial, I suppose?' said Alice, surprised at her own ingenuity. + +'Of course it is. It's called "WABE," you know, because it goes a long way before it, and a long way behind it--' + +'And a long way beyond it on each side,' Alice added. + +'Exactly so. Well, then, "MIMSY" is "flimsy and miserable" (there's another portmanteau for you). And a "BOROGOVE" is a thin shabby-looking bird with its feathers sticking out all round-- something like a live mop.' + +'And then "MOME RATHS"?' said Alice. 'I'm afraid I'm giving you a great deal of trouble.' + +'Well, a "RATH" is a sort of green pig: but "MOME" I'm not certain about. I think it's short for "from home"--meaning that they'd lost their way, you know.' + +'And what does "OUTGRABE" mean?' + +'Well, "OUTGRABING" is something between bellowing and whistling, with a kind of sneeze in the middle: however, you'll hear it done, maybe--down in the wood yonder--and when you've once heard it you'll be QUITE content. Who's been repeating all that hard stuff to you?' + +'I read it in a book,' said Alice. 'But I had some poetry repeated to me, much easier than that, by--Tweedledee, I think it was.' + +'As to poetry, you know,' said Humpty Dumpty, stretching out one of his great hands, '_I_ can repeat poetry as well as other folk, if it comes to that--' + +'Oh, it needn't come to that!' Alice hastily said, hoping to keep him from beginning. + +'The piece I'm going to repeat,' he went on without noticing her remark, 'was written entirely for your amusement.' + +Alice felt that in that case she really OUGHT to listen to it, so she sat down, and said 'Thank you' rather sadly. + +poem{ + + 'In winter, when the fields are white, + I sing this song for your delight-- + +}poem + +only I don't sing it,' he added, as an explanation. + +'I see you don't,' said Alice. + +'If you can SEE whether I'm singing or not, you've sharper eyes than most.' Humpty Dumpty remarked severely. Alice was silent. + +poem{ + + 'In spring, when woods are getting green, + I'll try and tell you what I mean.' + +}poem + +'Thank you very much,' said Alice. + +poem{ + + 'In summer, when the days are long, + Perhaps you'll understand the song: + In autumn, when the leaves are brown, + Take pen and ink, and write it down.' + +}poem + +'I will, if I can remember it so long,' said Alice. + +'You needn't go on making remarks like that,' Humpty Dumpty said: 'they're not sensible, and they put me out.' + +poem{ + + 'I sent a message to the fish: + I told them "This is what I wish." + + The little fishes of the sea, + They sent an answer back to me. + + The little fishes' answer was + "We cannot do it, Sir, because--"' + +}poem + +'I'm afraid I don't quite understand,' said Alice. + +'It gets easier further on,' Humpty Dumpty replied. + +poem{ + + 'I sent to them again to say + "It will be better to obey." + + The fishes answered with a grin, + "Why, what a temper you are in!" + + I told them once, I told them twice: + They would not listen to advice. + + I took a kettle large and new, + Fit for the deed I had to do. + + My heart went hop, my heart went thump; + I filled the kettle at the pump. + + Then some one came to me and said, + "The little fishes are in bed." + + I said to him, I said it plain, + "Then you must wake them up again." + + I said it very loud and clear; + I went and shouted in his ear.' + +}poem + +Humpty Dumpty raised his voice almost to a scream as he repeated this verse, and Alice thought with a shudder, 'I wouldn't have been the messenger for ANYTHING!' + +poem{ + + 'But he was very stiff and proud; + He said "You needn't shout so loud!" + + And he was very proud and stiff; + He said "I'd go and wake them, if--" + + I took a corkscrew from the shelf: + I went to wake them up myself. + + And when I found the door was locked, + I pulled and pushed and kicked and knocked. + + And when I found the door was shut, + I tried to turn the handle, but--' + +}poem + +There was a long pause. + +'Is that all?' Alice timidly asked. + +'That's all,' said Humpty Dumpty. 'Good-bye.' + +This was rather sudden, Alice thought: but, after such a VERY strong hint that she ought to be going, she felt that it would hardly be civil to stay. So she got up, and held out her hand. 'Good-bye, till we meet again!' she said as cheerfully as she could. + +'I shouldn't know you again if we DID meet,' Humpty Dumpty replied in a discontented tone, giving her one of his fingers to shake; 'you're so exactly like other people.' + +'The face is what one goes by, generally,' Alice remarked in a thoughtful tone. + +'That's just what I complain of,' said Humpty Dumpty. 'Your face is the same as everybody has--the two eyes, so--' (marking their places in the air with this thumb) 'nose in the middle, mouth under. It's always the same. Now if you had the two eyes on the same side of the nose, for instance--or the mouth at the top--that would be SOME help.' + +'It wouldn't look nice,' Alice objected. But Humpty Dumpty only shut his eyes and said 'Wait till you've tried.' + +Alice waited a minute to see if he would speak again, but as he never opened his eyes or took any further notice of her, she said 'Good-bye!' once more, and, getting no answer to this, she quietly walked away: but she couldn't help saying to herself as she went, 'Of all the unsatisfactory--' (she repeated this aloud, as it was a great comfort to have such a long word to say) 'of all the unsatisfactory people I EVER met--' She never finished the sentence, for at this moment a heavy crash shook the forest from end to end. + +CHAPTER VII - The Lion and the Unicorn + +The next moment soldiers came running through the wood, at first in twos and threes, then ten or twenty together, and at last in such crowds that they seemed to fill the whole forest. Alice got behind a tree, for fear of being run over, and watched them go by. + +She thought that in all her life she had never seen soldiers so uncertain on their feet: they were always tripping over something or other, and whenever one went down, several more always fell over him, so that the ground was soon covered with little heaps of men. + +Then came the horses. Having four feet, these managed rather better than the foot-soldiers: but even THEY stumbled now and then; and it seemed to be a regular rule that, whenever a horse stumbled the rider fell off instantly. The confusion got worse every moment, and Alice was very glad to get out of the wood into an open place, where she found the White King seated on the ground, busily writing in his memorandum-book. + +'I've sent them all!' the King cried in a tone of delight, on seeing Alice. 'Did you happen to meet any soldiers, my dear, as you came through the wood?' + +'Yes, I did,' said Alice: 'several thousand, I should think.' + +'Four thousand two hundred and seven, that's the exact number,' the King said, referring to his book. 'I couldn't send all the horses, you know, because two of them are wanted in the game. And I haven't sent the two Messengers, either. They're both gone to the town. Just look along the road, and tell me if you can see either of them.' + +'I see nobody on the road,' said Alice. + +'I only wish _{I}_ had such eyes,' the King remarked in a fretful tone. 'To be able to see Nobody! And at that distance, too! Why, it's as much as _{I}_ can do to see real people, by this light!' + +All this was lost on Alice, who was still looking intently along the road, shading her eyes with one hand. 'I see somebody now!' she exclaimed at last. 'But he's coming very slowly--and what curious attitudes he goes into!' (For the messenger kept skipping up and down, and wriggling like an eel, as he came along, with his great hands spread out like fans on each side.) + +'Not at all,' said the King. 'He's an Anglo-Saxon Messenger-- and those are Anglo-Saxon attitudes. He only does them when he's happy. His name is Haigha.' (He pronounced it so as to rhyme with 'mayor.') + +'I love my love with an H,' Alice couldn't help beginning, 'because he is Happy. I hate him with an H, because he is Hideous. I fed him with--with--with Ham-sandwiches and Hay. His name is Haigha, and he lives--' + +'He lives on the Hill,' the King remarked simply, without the least idea that he was joining in the game, while Alice was still hesitating for the name of a town beginning with H. 'The other Messenger's called Hatta. I must have TWO, you know--to come and go. One to come, and one to go.' + +'I beg your pardon?' said Alice. + +'It isn't respectable to beg,' said the King. + +'I only meant that I didn't understand,' said Alice. 'Why one to come and one to go?' + +'Didn't I tell you?' the King repeated impatiently. 'I must have Two--to fetch and carry. One to fetch, and one to carry.' + +At this moment the Messenger arrived: he was far too much out of breath to say a word, and could only wave his hands about, and make the most fearful faces at the poor King. + +'This young lady loves you with an H,' the King said, introducing Alice in the hope of turning off the Messenger's attention from himself--but it was no use--the Anglo-Saxon attitudes only got more extraordinary every moment, while the great eyes rolled wildly from side to side. + +'You alarm me!' said the King. 'I feel faint--Give me a ham sandwich!' + +On which the Messenger, to Alice's great amusement, opened a bag that hung round his neck, and handed a sandwich to the King, who devoured it greedily. + +'Another sandwich!' said the King. + +'There's nothing but hay left now,' the Messenger said, peeping into the bag. + +'Hay, then,' the King murmured in a faint whisper. + +Alice was glad to see that it revived him a good deal. 'There's nothing like eating hay when you're faint,' he remarked to her, as he munched away. + +'I should think throwing cold water over you would be better,' Alice suggested: 'or some sal-volatile.' + +'I didn't say there was nothing BETTER,' the King replied. 'I said there was nothing LIKE it.' Which Alice did not venture to deny. + +'Who did you pass on the road?' the King went on, holding out his hand to the Messenger for some more hay. + +'Nobody,' said the Messenger. + +'Quite right,' said the King: 'this young lady saw him too. So of course Nobody walks slower than you.' + +'I do my best,' the Messenger said in a sulky tone. 'I'm sure nobody walks much faster than I do!' + +'He can't do that,' said the King, 'or else he'd have been here first. However, now you've got your breath, you may tell us what's happened in the town.' + +'I'll whisper it,' said the Messenger, putting his hands to his mouth in the shape of a trumpet, and stooping so as to get close to the King's ear. Alice was sorry for this, as she wanted to hear the news too. However, instead of whispering, he simply shouted at the top of his voice 'They're at it again!' + +'Do you call THAT a whisper?' cried the poor King, jumping up and shaking himself. 'If you do such a thing again, I'll have you buttered! It went through and through my head like an earthquake!' + +'It would have to be a very tiny earthquake!' thought Alice. 'Who are at it again?' she ventured to ask. + +'Why the Lion and the Unicorn, of course,' said the King. + +'Fighting for the crown?' + +'Yes, to be sure,' said the King: 'and the best of the joke is, that it's MY crown all the while! Let's run and see them.' And they trotted off, Alice repeating to herself, as she ran, the words of the old song:-- + +poem{ + + 'The Lion and the Unicorn were fighting for the crown: + The Lion beat the Unicorn all round the town. + Some gave them white bread, some gave them brown; + Some gave them plum-cake and drummed them out of town.' + +}poem + +'Does--the one--that wins--get the crown?' she asked, as well as she could, for the run was putting her quite out of breath. + +'Dear me, no!' said the King. 'What an idea!' + +'Would you--be good enough,' Alice panted out, after running a little further, 'to stop a minute--just to get--one's breath again?' + +'I'm GOOD enough,' the King said, 'only I'm not strong enough. You see, a minute goes by so fearfully quick. You might as well try to stop a Bandersnatch!' + +Alice had no more breath for talking, so they trotted on in silence, till they came in sight of a great crowd, in the middle of which the Lion and Unicorn were fighting. They were in such a cloud of dust, that at first Alice could not make out which was which: but she soon managed to distinguish the Unicorn by his horn. + +They placed themselves close to where Hatta, the other messenger, was standing watching the fight, with a cup of tea in one hand and a piece of bread-and-butter in the other. + +'He's only just out of prison, and he hadn't finished his tea when he was sent in,' Haigha whispered to Alice: 'and they only give them oyster-shells in there--so you see he's very hungry and thirsty. How are you, dear child?' he went on, putting his arm affectionately round Hatta's neck. + +Hatta looked round and nodded, and went on with his bread and butter. + +'Were you happy in prison, dear child?' said Haigha. + +Hatta looked round once more, and this time a tear or two trickled down his cheek: but not a word would he say. + +'Speak, can't you!' Haigha cried impatiently. But Hatta only munched away, and drank some more tea. + +'Speak, won't you!' cried the King. 'How are they getting on with the fight?' + +Hatta made a desperate effort, and swallowed a large piece of bread-and-butter. 'They're getting on very well,' he said in a choking voice: 'each of them has been down about eighty-seven times.' + +'Then I suppose they'll soon bring the white bread and the brown?' Alice ventured to remark. + +'It's waiting for 'em now,' said Hatta: 'this is a bit of it as I'm eating.' + +There was a pause in the fight just then, and the Lion and the Unicorn sat down, panting, while the King called out 'Ten minutes allowed for refreshments!' Haigha and Hatta set to work at once, carrying rough trays of white and brown bread. Alice took a piece to taste, but it was VERY dry. + +'I don't think they'll fight any more to-day,' the King said to Hatta: 'go and order the drums to begin.' And Hatta went bounding away like a grasshopper. + +For a minute or two Alice stood silent, watching him. Suddenly she brightened up. 'Look, look!' she cried, pointing eagerly. 'There's the White Queen running across the country! She came flying out of the wood over yonder--How fast those Queens CAN run!' + +'There's some enemy after her, no doubt,' the King said, without even looking round. 'That wood's full of them.' + +'But aren't you going to run and help her?' Alice asked, very much surprised at his taking it so quietly. + +'No use, no use!' said the King. 'She runs so fearfully quick. You might as well try to catch a Bandersnatch! But I'll make a memorandum about her, if you like--She's a dear good creature,' he repeated softly to himself, as he opened his memorandum-book. 'Do you spell "creature" with a double "e"?' + +At this moment the Unicorn sauntered by them, with his hands in his pockets. 'I had the best of it this time?' he said to the King, just glancing at him as he passed. + +'A little--a little,' the King replied, rather nervously. 'You shouldn't have run him through with your horn, you know.' + +'It didn't hurt him,' the Unicorn said carelessly, and he was going on, when his eye happened to fall upon Alice: he turned round rather instantly, and stood for some time looking at her with an air of the deepest disgust. + +'What--is--this?' he said at last. + +'This is a child!' Haigha replied eagerly, coming in front of Alice to introduce her, and spreading out both his hands towards her in an Anglo-Saxon attitude. 'We only found it to-day. It's as large as life, and twice as natural!' + +'I always thought they were fabulous monsters!' said the Unicorn. 'Is it alive?' + +'It can talk,' said Haigha, solemnly. + +The Unicorn looked dreamily at Alice, and said 'Talk, child.' + +Alice could not help her lips curling up into a smile as she began: 'Do you know, I always thought Unicorns were fabulous monsters, too! I never saw one alive before!' + +'Well, now that we HAVE seen each other,' said the Unicorn, 'if you'll believe in me, I'll believe in you. Is that a bargain?' + +'Yes, if you like,' said Alice. + +'Come, fetch out the plum-cake, old man!' the Unicorn went on, turning from her to the King. 'None of your brown bread for me!' + +'Certainly--certainly!' the King muttered, and beckoned to Haigha. 'Open the bag!' he whispered. 'Quick! Not that one-- that's full of hay!' + +Haigha took a large cake out of the bag, and gave it to Alice to hold, while he got out a dish and carving-knife. How they all came out of it Alice couldn't guess. It was just like a conjuring-trick, she thought. + +The Lion had joined them while this was going on: he looked very tired and sleepy, and his eyes were half shut. 'What's this!' he said, blinking lazily at Alice, and speaking in a deep hollow tone that sounded like the tolling of a great bell. + +'Ah, what IS it, now?' the Unicorn cried eagerly. 'You'll never guess! _{I}_ couldn't.' + +The Lion looked at Alice wearily. 'Are you animal--vegetable --or mineral?' he said, yawning at every other word. + +'It's a fabulous monster!' the Unicorn cried out, before Alice could reply. + +'Then hand round the plum-cake, Monster,' the Lion said, lying down and putting his chin on this paws. 'And sit down, both of you,' (to the King and the Unicorn): 'fair play with the cake, you know!' + +The King was evidently very uncomfortable at having to sit down between the two great creatures; but there was no other place for him. + +'What a fight we might have for the crown, NOW!' the Unicorn said, looking slyly up at the crown, which the poor King was nearly shaking off his head, he trembled so much. + +'I should win easy,' said the Lion. + +'I'm not so sure of that,' said the Unicorn. + +'Why, I beat you all round the town, you chicken!' the Lion replied angrily, half getting up as he spoke. + +Here the King interrupted, to prevent the quarrel going on: he was very nervous, and his voice quite quivered. 'All round the town?' he said. 'That's a good long way. Did you go by the old bridge, or the market-place? You get the best view by the old bridge.' + +'I'm sure I don't know,' the Lion growled out as he lay down again. 'There was too much dust to see anything. What a time the Monster is, cutting up that cake!' + +Alice had seated herself on the bank of a little brook, with the great dish on her knees, and was sawing away diligently with the knife. 'It's very provoking!' she said, in reply to the Lion (she was getting quite used to being called 'the Monster'). 'I've cut several slices already, but they always join on again!' + +'You don't know how to manage Looking-glass cakes,' the Unicorn remarked. 'Hand it round first, and cut it afterwards.' + +This sounded nonsense, but Alice very obediently got up, and carried the dish round, and the cake divided itself into three pieces as she did so. 'NOW cut it up,' said the Lion, as she returned to her place with the empty dish. + +'I say, this isn't fair!' cried the Unicorn, as Alice sat with the knife in her hand, very much puzzled how to begin. 'The Monster has given the Lion twice as much as me!' + +'She's kept none for herself, anyhow,' said the Lion. 'Do you like plum-cake, Monster?' + +But before Alice could answer him, the drums began. + +Where the noise came from, she couldn't make out: the air seemed full of it, and it rang through and through her head till she felt quite deafened. She started to her feet and sprang across the little brook in her terror, + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +and had just time to see the Lion and the Unicorn rise to their feet, with angry looks at being interrupted in their feast, before she dropped to her knees, and put her hands over her ears, vainly trying to shut out the dreadful uproar. + +'If THAT doesn't "drum them out of town,"' she thought to herself, 'nothing ever will!' + +CHAPTER VIII - 'It's my own Invention' + +After a while the noise seemed gradually to die away, till all was dead silence, and Alice lifted up her head in some alarm. There was no one to be seen, and her first thought was that she must have been dreaming about the Lion and the Unicorn and those queer Anglo-Saxon Messengers. However, there was the great dish still lying at her feet, on which she had tried to cut the plum- cake, 'So I wasn't dreaming, after all,' she said to herself, 'unless--unless we're all part of the same dream. Only I do hope it's MY dream, and not the Red King's! I don't like belonging to another person's dream,' she went on in a rather complaining tone: 'I've a great mind to go and wake him, and see what happens!' + +At this moment her thoughts were interrupted by a loud shouting of 'Ahoy! Ahoy! Check!' and a Knight dressed in crimson armour came galloping down upon her, brandishing a great club. Just as he reached her, the horse stopped suddenly: 'You're my prisoner!' the Knight cried, as he tumbled off his horse. + +Startled as she was, Alice was more frightened for him than for herself at the moment, and watched him with some anxiety as he mounted again. As soon as he was comfortably in the saddle, he began once more 'You're my--' but here another voice broke in 'Ahoy! Ahoy! Check!' and Alice looked round in some surprise for the new enemy. + +This time it was a White Knight. He drew up at Alice's side, and tumbled off his horse just as the Red Knight had done: then he got on again, and the two Knights sat and looked at each other for some time without speaking. Alice looked from one to the other in some bewilderment. + +'She's MY prisoner, you know!' the Red Knight said at last. + +'Yes, but then _I_ came and rescued her!' the White Knight replied. + +'Well, we must fight for her, then,' said the Red Knight, as he took up his helmet (which hung from the saddle, and was something the shape of a horse's head), and put it on. + +'You will observe the Rules of Battle, of course?' the White Knight remarked, putting on his helmet too. + +'I always do,' said the Red Knight, and they began banging away at each other with such fury that Alice got behind a tree to be out of the way of the blows. + +'I wonder, now, what the Rules of Battle are,' she said to herself, as she watched the fight, timidly peeping out from her hiding-place: 'one Rule seems to be, that if one Knight hits the other, he knocks him off his horse, and if he misses, he tumbles off himself--and another Rule seems to be that they hold their clubs with their arms, as if they were Punch and Judy--What a noise they make when they tumble! Just like a whole set of fire- irons falling into the fender! And how quiet the horses are! They let them get on and off them just as if they were tables!' + +Another Rule of Battle, that Alice had not noticed, seemed to be that they always fell on their heads, and the battle ended with their both falling off in this way, side by side: when they got up again, they shook hands, and then the Red Knight mounted and galloped off. + +'It was a glorious victory, wasn't it?' said the White Knight, as he came up panting. + +'I don't know,' Alice said doubtfully. 'I don't want to be anybody's prisoner. I want to be a Queen.' + +'So you will, when you've crossed the next brook,' said the White Knight. 'I'll see you safe to the end of the wood--and then I must go back, you know. That's the end of my move.' + +'Thank you very much,' said Alice. 'May I help you off with your helmet?' It was evidently more than he could manage by himself; however, she managed to shake him out of it at last. + +'Now one can breathe more easily,' said the Knight, putting back his shaggy hair with both hands, and turning his gentle face and large mild eyes to Alice. She thought she had never seen such a strange-looking soldier in all her life. + +He was dressed in tin armour, which seemed to fit him very badly, and he had a queer-shaped little deal box fastened across his shoulder, upside-down, and with the lid hanging open. Alice looked at it with great curiosity. + +'I see you're admiring my little box.' the Knight said in a friendly tone. 'It's my own invention--to keep clothes and sandwiches in. You see I carry it upside-down, so that the rain can't get in.' + +'But the things can get OUT,' Alice gently remarked. 'Do you know the lid's open?' + +'I didn't know it,' the Knight said, a shade of vexation passing over his face. 'Then all the things must have fallen out! And the box is no use without them.' He unfastened it as he spoke, and was just going to throw it into the bushes, when a sudden thought seemed to strike him, and he hung it carefully on a tree. 'Can you guess why I did that?' he said to Alice. + +Alice shook her head. + +'In hopes some bees may make a nest in it--then I should get the honey.' + +'But you've got a bee-hive--or something like one--fastened to the saddle,' said Alice. + +'Yes, it's a very good bee-hive,' the Knight said in a discontented tone, 'one of the best kind. But not a single bee has come near it yet. And the other thing is a mouse-trap. I suppose the mice keep the bees out--or the bees keep the mice out, I don't know which.' + +'I was wondering what the mouse-trap was for,' said Alice. 'It isn't very likely there would be any mice on the horse's back.' + +'Not very likely, perhaps,' said the Knight: 'but if they DO come, I don't choose to have them running all about.' + +'You see,' he went on after a pause, 'it's as well to be provided for EVERYTHING. That's the reason the horse has all those anklets round his feet.' + +'But what are they for?' Alice asked in a tone of great curiosity. + +'To guard against the bites of sharks,' the Knight replied. 'It's an invention of my own. And now help me on. I'll go with you to the end of the wood--What's the dish for?' + +'It's meant for plum-cake,' said Alice. + +'We'd better take it with us,' the Knight said. 'It'll come in handy if we find any plum-cake. Help me to get it into this bag.' + +This took a very long time to manage, though Alice held the bag open very carefully, because the Knight was so VERY awkward in putting in the dish: the first two or three times that he tried he fell in himself instead. 'It's rather a tight fit, you see,' he said, as they got it in a last; 'There are so many candlesticks in the bag.' And he hung it to the saddle, which was already loaded with bunches of carrots, and fire-irons, and many other things. + +'I hope you've got your hair well fastened on?' he continued, as they set off. + +'Only in the usual way,' Alice said, smiling. + +'That's hardly enough,' he said, anxiously. 'You see the wind is so VERY strong here. It's as strong as soup.' + +'Have you invented a plan for keeping the hair from being blown off?' Alice enquired. + +'Not yet,' said the Knight. 'But I've got a plan for keeping it from FALLING off.' + +'I should like to hear it, very much.' + +'First you take an upright stick,' said the Knight. 'Then you make your hair creep up it, like a fruit-tree. Now the reason hair falls off is because it hangs DOWN--things never fall UPWARDS, you know. It's a plan of my own invention. You may try it if you like.' + +It didn't sound a comfortable plan, Alice thought, and for a few minutes she walked on in silence, puzzling over the idea, and every now and then stopping to help the poor Knight, who certainly was NOT a good rider. + +Whenever the horse stopped (which it did very often), he fell off in front; and whenever it went on again (which it generally did rather suddenly), he fell off behind. Otherwise he kept on pretty well, except that he had a habit of now and then falling off sideways; and as he generally did this on the side on which Alice was walking, she soon found that it was the best plan not to walk QUITE close to the horse. + +'I'm afraid you've not had much practice in riding,' she ventured to say, as she was helping him up from his fifth tumble. + +The Knight looked very much surprised, and a little offended at the remark. 'What makes you say that?' he asked, as he scrambled back into the saddle, keeping hold of Alice's hair with one hand, to save himself from falling over on the other side. + +'Because people don't fall off quite so often, when they've had much practice.' + +'I've had plenty of practice,' the Knight said very gravely: 'plenty of practice!' + +Alice could think of nothing better to say than 'Indeed?' but she said it as heartily as she could. They went on a little way in silence after this, the Knight with his eyes shut, muttering to himself, and Alice watching anxiously for the next tumble. + +'The great art of riding,' the Knight suddenly began in a loud voice, waving his right arm as he spoke, 'is to keep--' Here the sentence ended as suddenly as it had begun, as the Knight fell heavily on the top of his head exactly in the path where Alice was walking. She was quite frightened this time, and said in an anxious tone, as she picked him up, 'I hope no bones are broken?' + +'None to speak of,' the Knight said, as if he didn't mind breaking two or three of them. 'The great art of riding, as I was saying, is--to keep your balance properly. Like this, you know--' + +He let go the bridle, and stretched out both his arms to show Alice what he meant, and this time he fell flat on his back, right under the horse's feet. + +'Plenty of practice!' he went on repeating, all the time that Alice was getting him on his feet again. 'Plenty of practice!' + +'It's too ridiculous!' cried Alice, losing all her patience this time. 'You ought to have a wooden horse on wheels, that you ought!' + +'Does that kind go smoothly?' the Knight asked in a tone of great interest, clasping his arms round the horse's neck as he spoke, just in time to save himself from tumbling off again. + +'Much more smoothly than a live horse,' Alice said, with a little scream of laughter, in spite of all she could do to prevent it. + +'I'll get one,' the Knight said thoughtfully to himself. 'One or two--several.' + +There was a short silence after this, and then the Knight went on again. 'I'm a great hand at inventing things. Now, I daresay you noticed, that last time you picked me up, that I was looking rather thoughtful?' + +'You WERE a little grave,' said Alice. + +'Well, just then I was inventing a new way of getting over a gate--would you like to hear it?' + +'Very much indeed,' Alice said politely. + +'I'll tell you how I came to think of it,' said the Knight. 'You see, I said to myself, "The only difficulty is with the feet: the HEAD is high enough already." Now, first I put my head on the top of the gate--then I stand on my head--then the feet are high enough, you see--then I'm over, you see.' + +'Yes, I suppose you'd be over when that was done,' Alice said thoughtfully: 'but don't you think it would be rather hard?' + +'I haven't tried it yet,' the Knight said, gravely: 'so I can't tell for certain--but I'm afraid it WOULD be a little hard.' + +He looked so vexed at the idea, that Alice changed the subject hastily. 'What a curious helmet you've got!' she said cheerfully. 'Is that your invention too?' + +The Knight looked down proudly at his helmet, which hung from the saddle. 'Yes,' he said, 'but I've invented a better one than that--like a sugar loaf. When I used to wear it, if I fell off the horse, it always touched the ground directly. So I had a VERY little way to fall, you see--But there WAS the danger of falling INTO it, to be sure. That happened to me once--and the worst of it was, before I could get out again, the other White Knight came and put it on. He thought it was his own helmet.' + +The knight looked so solemn about it that Alice did not dare to laugh. 'I'm afraid you must have hurt him,' she said in a trembling voice, 'being on the top of his head.' + +'I had to kick him, of course,' the Knight said, very seriously. 'And then he took the helmet off again--but it took hours and hours to get me out. I was as fast as--as lightning, you know.' + +'But that's a different kind of fastness,' Alice objected. + +The Knight shook his head. 'It was all kinds of fastness with me, I can assure you!' he said. He raised his hands in some excitement as he said this, and instantly rolled out of the saddle, and fell headlong into a deep ditch. + +Alice ran to the side of the ditch to look for him. She was rather startled by the fall, as for some time he had kept on very well, and she was afraid that he really WAS hurt this time. However, though she could see nothing but the soles of his feet, she was much relieved to hear that he was talking on in his usual tone. 'All kinds of fastness,' he repeated: 'but it was careless of him to put another man's helmet on--with the man in it, too.' + +'How CAN you go on talking so quietly, head downwards?' Alice asked, as she dragged him out by the feet, and laid him in a heap on the bank. + +The Knight looked surprised at the question. 'What does it matter where my body happens to be?' he said. 'My mind goes on working all the same. In fact, the more head downwards I am, the more I keep inventing new things.' + +'Now the cleverest thing of the sort that I ever did,' he went on after a pause, 'was inventing a new pudding during the meat- course.' + +'In time to have it cooked for the next course?' said Alice. 'Well, not the NEXT course,' the Knight said in a slow thoughtful tone: 'no, certainly not the next COURSE.' + +'Then it would have to be the next day. I suppose you wouldn't have two pudding-courses in one dinner?' + +'Well, not the NEXT day,' the Knight repeated as before: 'not the next DAY. In fact,' he went on, holding his head down, and his voice getting lower and lower, 'I don't believe that pudding ever WAS cooked! In fact, I don't believe that pudding ever WILL be cooked! And yet it was a very clever pudding to invent.' + +'What did you mean it to be made of?' Alice asked, hoping to cheer him up, for the poor Knight seemed quite low-spirited about it. + +'It began with blotting paper,' the Knight answered with a groan. + +'That wouldn't be very nice, I'm afraid--' + +'Not very nice ALONE,' he interrupted, quite eagerly: 'but you've no idea what a difference it makes mixing it with other things--such as gunpowder and sealing-wax. And here I must leave you.' They had just come to the end of the wood. + +Alice could only look puzzled: she was thinking of the pudding. + +'You are sad,' the Knight said in an anxious tone: 'let me sing you a song to comfort you.' + +'Is it very long?' Alice asked, for she had heard a good deal of poetry that day. + +'It's long,' said the Knight, 'but very, VERY beautiful. Everybody that hears me sing it--either it brings the TEARS into their eyes, or else--' + +'Or else what?' said Alice, for the Knight had made a sudden pause. + +'Or else it doesn't, you know. The name of the song is called "HADDOCKS' EYES."' + +'Oh, that's the name of the song, is it?' Alice said, trying to feel interested. + +'No, you don't understand,' the Knight said, looking a little vexed. 'That's what the name is CALLED. The name really IS "THE AGED AGED MAN."' + +'Then I ought to have said "That's what the SONG is called"?' Alice corrected herself. + +'No, you oughtn't: that's quite another thing! The SONG is called "WAYS AND MEANS": but that's only what it's CALLED, you know!' + +'Well, what IS the song, then?' said Alice, who was by this time completely bewildered. + +'I was coming to that,' the Knight said. 'The song really IS "A-SITTING ON A GATE": and the tune's my own invention.' + +So saying, he stopped his horse and let the reins fall on its neck: then, slowly beating time with one hand, and with a faint smile lighting up his gentle foolish face, as if he enjoyed the music of his song, he began. + +Of all the strange things that Alice saw in her journey Through The Looking-Glass, this was the one that she always remembered most clearly. Years afterwards she could bring the whole scene back again, as if it had been only yesterday--the mild blue eyes and kindly smile of the Knight--the setting sun gleaming through his hair, and shining on his armour in a blaze of light that quite dazzled her--the horse quietly moving about, with the reins hanging loose on his neck, cropping the grass at her feet--and the black shadows of the forest behind--all this she took in like a picture, as, with one hand shading her eyes, she leant against a tree, watching the strange pair, and listening, in a half dream, to the melancholy music of the song. + +'But the tune ISN'T his own invention,' she said to herself: 'it's "I GIVE THEE ALL, I CAN NO MORE."' She stood and listened very attentively, but no tears came into her eyes. + +poem{ + + 'I'll tell thee everything I can; + There's little to relate. + I saw an aged aged man, + A-sitting on a gate. + "Who are you, aged man?" I said, + "and how is it you live?" + And his answer trickled through my head + Like water through a sieve. + + He said "I look for butterflies + That sleep among the wheat: + I make them into mutton-pies, + And sell them in the street. + I sell them unto men," he said, + "Who sail on stormy seas; + And that's the way I get my bread-- + A trifle, if you please." + + But I was thinking of a plan + To dye one's whiskers green, + And always use so large a fan + That they could not be seen. + So, having no reply to give + To what the old man said, + I cried, "Come, tell me how you live!" + And thumped him on the head. + + His accents mild took up the tale: + He said "I go my ways, + And when I find a mountain-rill, + I set it in a blaze; + And thence they make a stuff they call + Rolands' Macassar Oil-- + Yet twopence-halfpenny is all + They give me for my toil." + + But I was thinking of a way + To feed oneself on batter, + And so go on from day to day + Getting a little fatter. + I shook him well from side to side, + Until his face was blue: + "Come, tell me how you live," I cried, + "And what it is you do!" + + He said "I hunt for haddocks' eyes + Among the heather bright, + And work them into waistcoat-buttons + In the silent night. + And these I do not sell for gold + Or coin of silvery shine + But for a copper halfpenny, + And that will purchase nine. + + "I sometimes dig for buttered rolls, + Or set limed twigs for crabs; + I sometimes search the grassy knolls + For wheels of Hansom-cabs. + And that's the way" (he gave a wink) + "By which I get my wealth-- + And very gladly will I drink + Your Honour's noble health." + + I heard him then, for I had just + Completed my design + To keep the Menai bridge from rust + By boiling it in wine. + I thanked him much for telling me + The way he got his wealth, + But chiefly for his wish that he + Might drink my noble health. + + And now, if e'er by chance I put + My fingers into glue + Or madly squeeze a right-hand foot + Into a left-hand shoe, + Or if I drop upon my toe + A very heavy weight, + I weep, for it reminds me so, + Of that old man I used to know-- + + Whose look was mild, whose speech was slow, + Whose hair was whiter than the snow, + Whose face was very like a crow, + With eyes, like cinders, all aglow, + Who seemed distracted with his woe, + Who rocked his body to and fro, + And muttered mumblingly and low, + As if his mouth were full of dough, + Who snorted like a buffalo-- + That summer evening, long ago, + A-sitting on a gate.' + +}poem + +As the Knight sang the last words of the ballad, he gathered up the reins, and turned his horse's head along the road by which they had come. 'You've only a few yards to go,' he said, 'down the hill and over that little brook, and then you'll be a Queen-- But you'll stay and see me off first?' he added as Alice turned with an eager look in the direction to which he pointed. 'I shan't be long. You'll wait and wave your handkerchief when I get to that turn in the road? I think it'll encourage me, you see.' + +'Of course I'll wait,' said Alice: 'and thank you very much for coming so far--and for the song--I liked it very much.' + +'I hope so,' the Knight said doubtfully: 'but you didn't cry so much as I thought you would.' + +So they shook hands, and then the Knight rode slowly away into the forest. 'It won't take long to see him OFF, I expect,' Alice said to herself, as she stood watching him. 'There he goes! Right on his head as usual! However, he gets on again pretty easily--that comes of having so many things hung round the horse--' So she went on talking to herself, as she watched the horse walking leisurely along the road, and the Knight tumbling off, first on one side and then on the other. After the fourth or fifth tumble he reached the turn, and then she waved her handkerchief to him, and waited till he was out of sight. + +'I hope it encouraged him,' she said, as she turned to run down the hill: 'and now for the last brook, and to be a Queen! How grand it sounds!' A very few steps brought her to the edge of the brook. 'The Eighth Square at last!' she cried as she bounded across, + +poem{ + +* * * * ~# + + * * * ~# + +* * * * ~# + +}poem + +and threw herself down to rest on a lawn as soft as moss, with little flower-beds dotted about it here and there. 'Oh, how glad I am to get here! And what IS this on my head?' she exclaimed in a tone of dismay, as she put her hands up to something very heavy, and fitted tight all round her head. + +'But how CAN it have got there without my knowing it?' she said to herself, as she lifted it off, and set it on her lap to make out what it could possibly be. + +It was a golden crown. + +CHAPTER IX - Queen Alice + +'Well, this IS grand!' said Alice. 'I never expected I should be a Queen so soon--and I'll tell you what it is, your majesty,' she went on in a severe tone (she was always rather fond of scolding herself), 'it'll never do for you to be lolling about on the grass like that! Queens have to be dignified, you know!' + +So she got up and walked about--rather stiffly just at first, as she was afraid that the crown might come off: but she comforted herself with the thought that there was nobody to see her, 'and if I really am a Queen,' she said as she sat down again, 'I shall be able to manage it quite well in time.' + +Everything was happening so oddly that she didn't feel a bit surprised at finding the Red Queen and the White Queen sitting close to her, one on each side: she would have liked very much to ask them how they came there, but she feared it would not be quite civil. However, there would be no harm, she thought, in asking if the game was over. 'Please, would you tell me--' she began, looking timidly at the Red Queen. + +'Speak when you're spoken to!' The Queen sharply interrupted her. + +'But if everybody obeyed that rule,' said Alice, who was always ready for a little argument, 'and if you only spoke when you were spoken to, and the other person always waited for YOU to begin, you see nobody would ever say anything, so that--' + +'Ridiculous!' cried the Queen. 'Why, don't you see, child--' here she broke off with a frown, and, after thinking for a minute, suddenly changed the subject of the conversation. 'What do you mean by "If you really are a Queen"? What right have you to call yourself so? You can't be a Queen, you know, till you've passed the proper examination. And the sooner we begin it, the better.' + +'I only said "if"!' poor Alice pleaded in a piteous tone. + +The two Queens looked at each other, and the Red Queen remarked, with a little shudder, 'She SAYS she only said "if"--' + +'But she said a great deal more than that!' the White Queen moaned, wringing her hands. 'Oh, ever so much more than that!' + +'So you did, you know,' the Red Queen said to Alice. 'Always speak the truth--think before you speak--and write it down afterwards.' + +'I'm sure I didn't mean--' Alice was beginning, but the Red Queen interrupted her impatiently. + +'That's just what I complain of! You SHOULD have meant! What do you suppose is the use of child without any meaning? Even a joke should have some meaning--and a child's more important than a joke, I hope. You couldn't deny that, even if you tried with both hands.' + +'I don't deny things with my HANDS,' Alice objected. + +'Nobody said you did,' said the Red Queen. 'I said you couldn't if you tried.' + +'She's in that state of mind,' said the White Queen, 'that she wants to deny SOMETHING--only she doesn't know what to deny!' + +'A nasty, vicious temper,' the Red Queen remarked; and then there was an uncomfortable silence for a minute or two. + +The Red Queen broke the silence by saying to the White Queen, 'I invite you to Alice's dinner-party this afternoon.' + +The White Queen smiled feebly, and said 'And I invite YOU.' + +'I didn't know I was to have a party at all,' said Alice; 'but if there is to be one, I think _{I}_ ought to invite the guests.' + +'We gave you the opportunity of doing it,' the Red Queen remarked: 'but I daresay you've not had many lessons in manners yet?' + +'Manners are not taught in lessons,' said Alice. 'Lessons teach you to do sums, and things of that sort.' + +'And you do Addition?' the White Queen asked. 'What's one and one and one and one and one and one and one and one and one and one?' + +'I don't know,' said Alice. 'I lost count.' + +'She can't do Addition,' the Red Queen interrupted. 'Can you do Subtraction? Take nine from eight.' + +'Nine from eight I can't, you know,' Alice replied very readily: 'but--' + +'She can't do Subtraction,' said the White Queen. 'Can you do Division? Divide a loaf by a knife--what's the answer to that?' + +'I suppose--' Alice was beginning, but the Red Queen answered for her. 'Bread-and-butter, of course. Try another Subtraction sum. Take a bone from a dog: what remains?' + +Alice considered. 'The bone wouldn't remain, of course, if I took it--and the dog wouldn't remain; it would come to bite me --and I'm sure I shouldn't remain!' + +'Then you think nothing would remain?' said the Red Queen. + +'I think that's the answer.' + +'Wrong, as usual,' said the Red Queen: 'the dog's temper would remain.' + +'But I don't see how--' + +'Why, look here!' the Red Queen cried. 'The dog would lose its temper, wouldn't it?' + +'Perhaps it would,' Alice replied cautiously. + +'Then if the dog went away, its temper would remain!' the Queen exclaimed triumphantly. + +Alice said, as gravely as she could, 'They might go different ways.' But she couldn't help thinking to herself, 'What dreadful nonsense we ARE talking!' + +'She can't do sums a BIT!' the Queens said together, with great emphasis. + +'Can YOU do sums?' Alice said, turning suddenly on the White Queen, for she didn't like being found fault with so much. + +The Queen gasped and shut her eyes. 'I can do Addition, if you give me time--but I can do Subtraction, under ANY circumstances!' + +'Of course you know your A B C?' said the Red Queen. + +'To be sure I do.' said Alice. + +'So do I,' the White Queen whispered: 'we'll often say it over together, dear. And I'll tell you a secret--I can read words of one letter! Isn't THAT grand! However, don't be discouraged. You'll come to it in time.' + +Here the Red Queen began again. 'Can you answer useful questions?' she said. 'How is bread made?' + +'I know THAT!' Alice cried eagerly. 'You take some flour--' + +'Where do you pick the flower?' the White Queen asked. 'In a garden, or in the hedges?' + +'Well, it isn't PICKED at all,' Alice explained: 'it's GROUND--' + +'How many acres of ground?' said the White Queen. 'You mustn't leave out so many things.' + +'Fan her head!' the Red Queen anxiously interrupted. 'She'll be feverish after so much thinking.' So they set to work and fanned her with bunches of leaves, till she had to beg them to leave off, it blew her hair about so. + +'She's all right again now,' said the Red Queen. 'Do you know Languages? What's the French for fiddle-de-dee?' + +'Fiddle-de-dee's not English,' Alice replied gravely. + +'Who ever said it was?' said the Red Queen. + +Alice thought she saw a way out of the difficulty this time. 'If you'll tell me what language "fiddle-de-dee" is, I'll tell you the French for it!' she exclaimed triumphantly. + +But the Red Queen drew herself up rather stiffly, and said 'Queens never make bargains.' + +'I wish Queens never asked questions,' Alice thought to herself. + +'Don't let us quarrel,' the White Queen said in an anxious tone. 'What is the cause of lightning?' + +'The cause of lightning,' Alice said very decidedly, for she felt quite certain about this, 'is the thunder--no, no!' she hastily corrected herself. 'I meant the other way.' + +'It's too late to correct it,' said the Red Queen: 'when you've once said a thing, that fixes it, and you must take the consequences.' + +'Which reminds me--' the White Queen said, looking down and nervously clasping and unclasping her hands, 'we had SUCH a thunderstorm last Tuesday--I mean one of the last set of Tuesdays, you know.' + +Alice was puzzled. 'In OUR country,' she remarked, 'there's only one day at a time.' + +The Red Queen said, 'That's a poor thin way of doing things. Now HERE, we mostly have days and nights two or three at a time, and sometimes in the winter we take as many as five nights together--for warmth, you know.' + +'Are five nights warmer than one night, then?' Alice ventured to ask. + +'Five times as warm, of course.' + +'But they should be five times as COLD, by the same rule--' + +'Just so!' cried the Red Queen. 'Five times as warm, AND five times as cold--just as I'm five times as rich as you are, AND five times as clever!' + +Alice sighed and gave it up. 'It's exactly like a riddle with no answer!' she thought. + +'Humpty Dumpty saw it too,' the White Queen went on in a low voice, more as if she were talking to herself. 'He came to the door with a corkscrew in his hand--' + +'What did he want?' said the Red Queen. + +'He said he WOULD come in,' the White Queen went on, 'because he was looking for a hippopotamus. Now, as it happened, there wasn't such a thing in the house, that morning.' + +'Is there generally?' Alice asked in an astonished tone. + +'Well, only on Thursdays,' said the Queen. + +'I know what he came for,' said Alice: 'he wanted to punish the fish, because--' + +Here the White Queen began again. 'It was SUCH a thunderstorm, you can't think!' ('She NEVER could, you know,' said the Red Queen.) 'And part of the roof came off, and ever so much thunder got in--and it went rolling round the room in great lumps--and knocking over the tables and things--till I was so frightened, I couldn't remember my own name!' + +Alice thought to herself, 'I never should TRY to remember my name in the middle of an accident! Where would be the use of it?' but she did not say this aloud, for fear of hurting the poor Queen's feeling. + +'Your Majesty must excuse her,' the Red Queen said to Alice, taking one of the White Queen's hands in her own, and gently stroking it: 'she means well, but she can't help saying foolish things, as a general rule.' + +The White Queen looked timidly at Alice, who felt she OUGHT to say something kind, but really couldn't think of anything at the moment. + +'She never was really well brought up,' the Red Queen went on: 'but it's amazing how good-tempered she is! Pat her on the head, and see how pleased she'll be!' But this was more than Alice had courage to do. + +'A little kindness--and putting her hair in papers--would do wonders with her--' + +The White Queen gave a deep sigh, and laid her head on Alice's shoulder. 'I AM so sleepy?' she moaned. + +'She's tired, poor thing!' said the Red Queen. 'Smooth her hair --lend her your nightcap--and sing her a soothing lullaby.' + +'I haven't got a nightcap with me,' said Alice, as she tried to obey the first direction: 'and I don't know any soothing lullabies.' + +'I must do it myself, then,' said the Red Queen, and she began: + +poem{ + + 'Hush-a-by lady, in Alice's lap! + Till the feast's ready, we've time for a nap: + When the feast's over, we'll go to the ball-- + Red Queen, and White Queen, and Alice, and all! + +}poem + +'And now you know the words,' she added, as she put her head down on Alice's other shoulder, 'just sing it through to ME. I'm getting sleepy, too.' In another moment both Queens were fast asleep, and snoring loud. + +'What AM I to do?' exclaimed Alice, looking about in great perplexity, as first one round head, and then the other, rolled down from her shoulder, and lay like a heavy lump in her lap. 'I don't think it EVER happened before, that any one had to take care of two Queens asleep at once! No, not in all the History of England--it couldn't, you know, because there never was more than one Queen at a time. Do wake up, you heavy things!' she went on in an impatient tone; but there was no answer but a gentle snoring. + +The snoring got more distinct every minute, and sounded more like a tune: at last she could even make out the words, and she listened so eagerly that, when the two great heads vanished from her lap, she hardly missed them. + +She was standing before an arched doorway over which were the words QUEEN ALICE in large letters, and on each side of the arch there was a bell-handle; one was marked 'Visitors' Bell,' and the other 'Servants' Bell.' + +'I'll wait till the song's over,' thought Alice, 'and then I'll ring--the--WHICH bell must I ring?' she went on, very much puzzled by the names. 'I'm not a visitor, and I'm not a servant. There OUGHT to be one marked "Queen," you know--' + +Just then the door opened a little way, and a creature with a long beak put its head out for a moment and said 'No admittance till the week after next!' and shut the door again with a bang. + +Alice knocked and rang in vain for a long time, but at last, a very old Frog, who was sitting under a tree, got up and hobbled slowly towards her: he was dressed in bright yellow, and had enormous boots on. + +'What is it, now?' the Frog said in a deep hoarse whisper. + +Alice turned round, ready to find fault with anybody. 'Where's the servant whose business it is to answer the door?' she began angrily. + +'Which door?' said the Frog. + +Alice almost stamped with irritation at the slow drawl in which he spoke. 'THIS door, of course!' + +The Frog looked at the door with his large dull eyes for a minute: then he went nearer and rubbed it with his thumb, as if he were trying whether the paint would come off; then he looked at Alice. + +'To answer the door?' he said. 'What's it been asking of?' He was so hoarse that Alice could scarcely hear him. + +'I don't know what you mean,' she said. + +'I talks English, doesn't I?' the Frog went on. 'Or are you deaf? What did it ask you?' + +'Nothing!' Alice said impatiently. 'I've been knocking at it!' + +'Shouldn't do that--shouldn't do that--' the Frog muttered. 'Vexes it, you know.' Then he went up and gave the door a kick with one of his great feet. 'You let IT alone,' he panted out, as he hobbled back to his tree, 'and it'll let YOU alone, you know.' + +At this moment the door was flung open, and a shrill voice was heard singing: + +poem{ + + 'To the Looking-Glass world it was Alice that said, + "I've a sceptre in hand, I've a crown on my head; + Let the Looking-Glass creatures, whatever they be, + Come and dine with the Red Queen, the White Queen, and me."' + +}poem + +And hundreds of voices joined in the chorus: + +poem{ + + 'Then fill up the glasses as quick as you can, + And sprinkle the table with buttons and bran: + Put cats in the coffee, and mice in the tea-- + And welcome Queen Alice with thirty-times-three!' + +}poem + +Then followed a confused noise of cheering, and Alice thought to herself, 'Thirty times three makes ninety. I wonder if any one's counting?' In a minute there was silence again, and the same shrill voice sang another verse; + +poem{ + + '"O Looking-Glass creatures," quothe Alice, "draw near! + 'Tis an honour to see me, a favour to hear: + 'Tis a privilege high to have dinner and tea + Along with the Red Queen, the White Queen, and me!"' + +}poem + +Then came the chorus again:-- + +poem{ + + 'Then fill up the glasses with treacle and ink, + Or anything else that is pleasant to drink: + Mix sand with the cider, and wool with the wine-- + And welcome Queen Alice with ninety-times-nine!' + +}poem + +'Ninety times nine!' Alice repeated in despair, 'Oh, that'll never be done! I'd better go in at once--' and there was a dead silence the moment she appeared. + +Alice glanced nervously along the table, as she walked up the large hall, and noticed that there were about fifty guests, of all kinds: some were animals, some birds, and there were even a few flowers among them. 'I'm glad they've come without waiting to be asked,' she thought: 'I should never have known who were the right people to invite!' + +There were three chairs at the head of the table; the Red and White Queens had already taken two of them, but the middle one was empty. Alice sat down in it, rather uncomfortable in the silence, and longing for some one to speak. + +At last the Red Queen began. 'You've missed the soup and fish,' she said. 'Put on the joint!' And the waiters set a leg of mutton before Alice, who looked at it rather anxiously, as she had never had to carve a joint before. + +'You look a little shy; let me introduce you to that leg of mutton,' said the Red Queen. 'Alice--Mutton; Mutton--Alice.' The leg of mutton got up in the dish and made a little bow to Alice; and Alice returned the bow, not knowing whether to be frightened or amused. + +'May I give you a slice?' she said, taking up the knife and fork, and looking from one Queen to the other. + +'Certainly not,' the Red Queen said, very decidedly: 'it isn't etiquette to cut any one you've been introduced to. Remove the joint!' And the waiters carried it off, and brought a large plum-pudding in its place. + +'I won't be introduced to the pudding, please,' Alice said rather hastily, 'or we shall get no dinner at all. May I give you some?' + +But the Red Queen looked sulky, and growled 'Pudding--Alice; Alice--Pudding. Remove the pudding!' and the waiters took it away so quickly that Alice couldn't return its bow. + +However, she didn't see why the Red Queen should be the only one to give orders, so, as an experiment, she called out 'Waiter! Bring back the pudding!' and there it was again in a moment like a conjuring-trick. It was so large that she couldn't help feeling a LITTLE shy with it, as she had been with the mutton; however, she conquered her shyness by a great effort and cut a slice and handed it to the Red Queen. + +'What impertinence!' said the Pudding. 'I wonder how you'd like it, if I were to cut a slice out of YOU, you creature!' + +It spoke in a thick, suety sort of voice, and Alice hadn't a word to say in reply: she could only sit and look at it and gasp. + +'Make a remark,' said the Red Queen: 'it's ridiculous to leave all the conversation to the pudding!' + +'Do you know, I've had such a quantity of poetry repeated to me to-day,' Alice began, a little frightened at finding that, the moment she opened her lips, there was dead silence, and all eyes were fixed upon her; 'and it's a very curious thing, I think-- every poem was about fishes in some way. Do you know why they're so fond of fishes, all about here?' + +She spoke to the Red Queen, whose answer was a little wide of the mark. 'As to fishes,' she said, very slowly and solemnly, putting her mouth close to Alice's ear, 'her White Majesty knows a lovely riddle--all in poetry--all about fishes. Shall she repeat it?' + +'Her Red Majesty's very kind to mention it,' the White Queen murmured into Alice's other ear, in a voice like the cooing of a pigeon. 'It would be SUCH a treat! May I?' + +'Please do,' Alice said very politely. + +The White Queen laughed with delight, and stroked Alice's cheek. Then she began: + +poem{ + + '"First, the fish must be caught." + That is easy: a baby, I think, could have caught it. + "Next, the fish must be bought." + That is easy: a penny, I think, would have bought it. + + "Now cook me the fish!" + That is easy, and will not take more than a minute. + "Let it lie in a dish!" + That is easy, because it already is in it. + + "Bring it here! Let me sup!" + It is easy to set such a dish on the table. + "Take the dish-cover up!" + Ah, THAT is so hard that I fear I'm unable! + + For it holds it like glue-- + Holds the lid to the dish, while it lies in the middle: + Which is easiest to do, + Un-dish-cover the fish, or dishcover the riddle?' + +}poem + +'Take a minute to think about it, and then guess,' said the Red Queen. 'Meanwhile, we'll drink your health--Queen Alice's health!' she screamed at the top of her voice, and all the guests began drinking it directly, and very queerly they managed it: some of them put their glasses upon their heads like extinguishers, and drank all that trickled down their faces--others upset the decanters, and drank the wine as it ran off the edges of the table--and three of them (who looked like kangaroos) scrambled into the dish of roast mutton, and began eagerly lapping up the gravy, 'just like pigs in a trough!' thought Alice. + +'You ought to return thanks in a neat speech,' the Red Queen said, frowning at Alice as she spoke. + +'We must support you, you know,' the White Queen whispered, as Alice got up to do it, very obediently, but a little frightened. + +'Thank you very much,' she whispered in reply, 'but I can do quite well without.' + +'That wouldn't be at all the thing,' the Red Queen said very decidedly: so Alice tried to submit to it with a good grace. + +('And they DID push so!' she said afterwards, when she was telling her sister the history of the feast. 'You would have thought they wanted to squeeze me flat!') + +In fact it was rather difficult for her to keep in her place while she made her speech: the two Queens pushed her so, one on each side, that they nearly lifted her up into the air: 'I rise to return thanks--' Alice began: and she really DID rise as she spoke, several inches; but she got hold of the edge of the table, and managed to pull herself down again. + +'Take care of yourself!' screamed the White Queen, seizing Alice's hair with both her hands. 'Something's going to happen!' + +And then (as Alice afterwards described it) all sorts of things happened in a moment. The candles all grew up to the ceiling, looking something like a bed of rushes with fireworks at the top. As to the bottles, they each took a pair of plates, which they hastily fitted on as wings, and so, with forks for legs, went fluttering about in all directions: 'and very like birds they look,' Alice thought to herself, as well as she could in the dreadful confusion that was beginning. + +At this moment she heard a hoarse laugh at her side, and turned to see what was the matter with the White Queen; but, instead of the Queen, there was the leg of mutton sitting in the chair. 'Here I am!' cried a voice from the soup tureen, and Alice turned again, just in time to see the Queen's broad good-natured face grinning at her for a moment over the edge of the tureen, before she disappeared into the soup. + +There was not a moment to be lost. Already several of the guests were lying down in the dishes, and the soup ladle was walking up the table towards Alice's chair, and beckoning to her impatiently to get out of its way. + +'I can't stand this any longer!' she cried as she jumped up and seized the table-cloth with both hands: one good pull, and plates, dishes, guests, and candles came crashing down together in a heap on the floor. + +'And as for YOU,' she went on, turning fiercely upon the Red Queen, whom she considered as the cause of all the mischief--but the Queen was no longer at her side--she had suddenly dwindled down to the size of a little doll, and was now on the table, merrily running round and round after her own shawl, which was trailing behind her. + +At any other time, Alice would have felt surprised at this, but she was far too much excited to be surprised at anything NOW. 'As for YOU,' she repeated, catching hold of the little creature in the very act of jumping over a bottle which had just lighted upon the table, 'I'll shake you into a kitten, that I will!' + +CHAPTER X - Shaking + +She took her off the table as she spoke, and shook her backwards and forwards with all her might. + +The Red Queen made no resistance whatever; only her face grew very small, and her eyes got large and green: and still, as Alice went on shaking her, she kept on growing shorter--and fatter--and softer--and rounder--and-- + +CHAPTER XI - Waking + +--and it really WAS a kitten, after all. + +CHAPTER XII - Which Dreamed it? + +'Your majesty shouldn't purr so loud,' Alice said, rubbing her eyes, and addressing the kitten, respectfully, yet with some severity. 'You woke me out of oh! such a nice dream! And you've been along with me, Kitty--all through the Looking-Glass world. Did you know it, dear?' + +It is a very inconvenient habit of kittens (Alice had once made the remark) that, whatever you say to them, they ALWAYS purr. 'If they would only purr for "yes" and mew for "no," or any rule of that sort,' she had said, 'so that one could keep up a conversation! But how CAN you talk with a person if they always say the same thing?' + +On this occasion the kitten only purred: and it was impossible to guess whether it meant 'yes' or 'no.' + +So Alice hunted among the chessmen on the table till she had found the Red Queen: then she went down on her knees on the hearth-rug, and put the kitten and the Queen to look at each other. 'Now, Kitty!' she cried, clapping her hands triumphantly. 'Confess that was what you turned into!' + +('But it wouldn't look at it,' she said, when she was explaining the thing afterwards to her sister: 'it turned away its head, and pretended not to see it: but it looked a LITTLE ashamed of itself, so I think it MUST have been the Red Queen.') + +'Sit up a little more stiffly, dear!' Alice cried with a merry laugh. 'And curtsey while you're thinking what to--what to purr. It saves time, remember!' And she caught it up and gave it one little kiss, 'just in honour of having been a Red Queen.' + +'Snowdrop, my pet!' she went on, looking over her shoulder at the White Kitten, which was still patiently undergoing its toilet, 'when WILL Dinah have finished with your White Majesty, I wonder? That must be the reason you were so untidy in my dream-- Dinah! do you know that you're scrubbing a White Queen? Really, it's most disrespectful of you! + +'And what did DINAH turn to, I wonder?' she prattled on, as she settled comfortably down, with one elbow in the rug, and her chin in her hand, to watch the kittens. 'Tell me, Dinah, did you turn to Humpty Dumpty? I THINK you did--however, you'd better not mention it to your friends just yet, for I'm not sure. + +'By the way, Kitty, if only you'd been really with me in my dream, there was one thing you WOULD have enjoyed--I had such a quantity of poetry said to me, all about fishes! To-morrow morning you shall have a real treat. All the time you're eating your breakfast, I'll repeat "The Walrus and the Carpenter" to you; and then you can make believe it's oysters, dear! + +'Now, Kitty, let's consider who it was that dreamed it all. This is a serious question, my dear, and you should NOT go on licking your paw like that--as if Dinah hadn't washed you this morning! You see, Kitty, it MUST have been either me or the Red King. He was part of my dream, of course--but then I was part of his dream, too! WAS it the Red King, Kitty? You were his wife, my dear, so you ought to know--Oh, Kitty, DO help to settle it! I'm sure your paw can wait!' But the provoking kitten only began on the other paw, and pretended it hadn't heard the question. + +Which do YOU think it was? + +poem{ + + A boat beneath a sunny sky, + Lingering onward dreamily + In an evening of July-- + + Children three that nestle near, + Eager eye and willing ear, + Pleased a simple tale to hear-- + + Long has paled that sunny sky: + Echoes fade and memories die. + Autumn frosts have slain July. + + Still she haunts me, phantomwise, + Alice moving under skies + Never seen by waking eyes. + + Children yet, the tale to hear, + Eager eye and willing ear, + Lovingly shall nestle near. + + In a Wonderland they lie, + Dreaming as the days go by, + Dreaming as the summers die: + + Ever drifting down the stream-- + Lingering in the golden gleam-- + Life, what is it but a dream? + +}poem + +THE END -- cgit v1.2.3